G.R. No.

196231               September 4, 2012

EMILIO A. GONZALES III, Petitioner,

vs.
OFFICE OF THE PRESIDENT OF THE PHILIPPINES, acting through and represented by
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., SENIOR DEPUTY EXECUTIVE
SECRETARY JOSE AMOR M. AMORANDO, Officer in Charge, Office of the Deputy Executive
Secretary for Legal Affairs, ATTY. RONALDO A. GERON, DIR. ROWENA TURINGAN-
SANCHEZ, and ATTY. CARLITOD. CATAYONG, Respondents.

x-----------------------x

G.R. No. 196232

WENDELL BARRERAS-SULIT, Petitioner,
vs.
ATTY. PAQUITO N. OCHOA, JR., in his capacity as EXECUTIVE SECRETARY, OFFICE OF THE
PRESIDENT, ATTY. DENNIS F. ORTIZ, ATTY. CARLO D.SULAY and ATTY. FROILAN
MONTALBAN, .JR., in their capacities as CHAIRMAN and MEMBERS of the OFFICE OF
MALACAÑANG LEGAL AFFAIRS, Respondents.

DECISION

PERLAS-BERNABE, J.:

The Case

These two petitions have been consolidated not because they stem from the same factual milieu but
because they raise a common thread of issues relating to the President's exercise of the power to
remove from office herein petitioners who claim the protective cloak of independence of the
constitutionally-created office to which they belong - the Office of the Ombudsman.

The first case, docketed as G.R. No. 196231, is a Petition for Certiorari (with application for issuance
of temporary restraining order or status quo order) which assails on jurisdictional grounds the
Decision dated March 31, 2011 rendered by the Office of the President in OP Case No. 10-J-460
1 

dismissing petitioner Emilio A. Gonzales III, Deputy Ombudsman for the Military and Other Law
Enforcement Offices (MOLEO), upon a finding of guilt on the administrative charges of Gross
Neglect of Duty and Grave Misconduct constituting a Betrayal of Public Trust. The petition primarily
seeks to declare as unconstitutional Section 8(2) of Republic Act (R.A.) No. 6770, otherwise known
as the Ombudsman Act of 1989, which gives the President the power to dismiss a Deputy
Ombudsman of the Office of the Ombudsman.

The second case, docketed as G.R. No. 196232, is a Petition for Certiorari and Prohibition (with
application for issuance of a temporary restraining order or status quo order) seeking to annul,
reverse and set aside (1) the undated Order requiring petitioner Wendell Barreras-Sulit to submit a
2 

written explanation with respect to alleged acts or omissions constituting serious/grave offenses in
relation to the Plea Bargaining Agreement (PLEBARA) entered into with Major General Carlos F.
Garcia; and (2) the April 7, 2011 Notice of Preliminary Investigation, both issued by the Office of the
3 

President in OP-DC-Case No. 11-B-003, the administrative case initiated against petitioner as a
Special Prosecutor of the Office of the Ombudsman. The petition likewise seeks to declare as
unconstitutional Section 8(2) of R.A. No. 6770 giving the President the power to dismiss a Special
Prosecutor of the Office of the Ombudsman.

The facts from which these two cases separately took root are neither complicated nor unfamiliar.

In the morning of August 23, 2010, news media scampered for a minute-by-minute coverage of a
hostage drama that had slowly unfolded right at the very heart of the City of Manila. While initial
news accounts were fragmented it was not difficult to piece together the story on the hostage-taker,
Police Senior Inspector Rolando Mendoza. He was a disgruntled former police officer attempting to
secure his reinstatement in the police force and to restore the benefits of a life-long, and erstwhile
bemedaled, service. The following day, broadsheets and tabloids were replete with stories not just of
the deceased hostage-taker but also of the hostage victims, eight of whom died during the bungled
police operation to rescue the hapless innocents. Their tragic deaths triggered word wars of foreign
relation proportions. One newspaper headline ran the story in detail, as follows:

MANILA, Philippines - A dismissed policeman armed with an assault rifle hijacked a bus packed with
tourists, and killed most of its passengers in a 10 hour-hostage drama shown live on national
television until last night.

Former police senior inspector Rolando Mendoza was shot dead by a sniper at past 9 p.m. Mendoza
hijacked the bus and took 21 Chinese tourists hostage, demanding his reinstatement to the police
force.

The hostage drama dragged on even after the driver of the bus managed to escape and told police
that all the remaining passengers had been killed.

Late into the night assault forces surrounded the bus and tried to gain entry, but a pair of dead
hostages hand-cuffed to the door made it difficult for them. Police said they fired at the wheels of the
bus to immobilize it.

Police used hammers to smash windows, door and wind-shield but were met with intermittent fire
from the hos-tage taker.

Police also used tear gas in an effort to confirm if the remaining hostages were all dead or alive.
When the standoff ended at nearly 9 p.m., some four hostages were rescued alive while Mendoza
was killed by a sniper.

Initial reports said some 30 policemen stormed the bus. Shots also rang out, sending bystanders
scampering for safety.

It took the policemen almost two hours to assault the bus because gunfire reportedly rang out from
inside the bus.

Mendoza hijacked the tourist bus in the morning and took the tourists hostage.

Mendoza, who claimed he was illegally dismissed from the police service, initially released nine of
the hostages during the drama that began at 10 a.m. and played out live on national television.

Live television footage showed Mendoza asking for food for those remaining in the bus, which was
delivered, and fuel to keep the air-conditioning going. The disgruntled former police officer was
reportedly armed with an M-16 rifle, a 9 mm pistol and two hand grenades.
Mendoza posted a handwritten note on the windows of the bus, saying "big deal will start after 3 p.m.
today." Another sign stuck to another window said "3 p.m. today deadlock."

Stressing his demand, Mendoza stuck a piece of paper with a handwritten message: "Big mistake to
correct a big wrong decision." A larger piece of paper on the front windshield was headed, "Release
final decision," apparently referring to the case that led to his dismissal from the police force.

Negotiations dragged on even after Mendoza's self-imposed deadline.

Senior Police Officer 2 Gregorio Mendoza said his brother was upset over his dismissal from the
police force. "His problem was he was unjustly removed from service. There was no due process, no
hearing, no com-plaint," Gregorio said.

Last night, Gregorio was arrested by his colleagues on suspicions of being an accessory to his
brother's action. Tensions rose as relatives tried to prevent lawmen from arresting Gregorio in front
of national television. This triggered the crisis that eventually forced Mendoza to carry out his threat
and kill the remaining hostages.

Negotiators led by Superintendent Orlando Yebra and Chief Inspector Romeo Salvador tried to talk
Mendoza into surrendering and releasing the 21 hostages, mostly children and three Filipinos,
including the driver, the tourist guide and a photographer. Yebra reportedly lent a cellphone to allow
communications with Mendoza in-side the bus, which was parked in front ofthe Quirino Grandstand.

Children could be seen peeking from the drawn curtains of the bus while police negotiators hovered
near the scene.

Manila Police District (MPD) director Chief Superinten-dent Rodolfo Magtibay ordered the
deployment of crack police teams and snipers near the scene. A crisis man-agement committee had
been activated with Manila Vice Mayor Isko Moreno coordinating the actions with the MPD.

Earlier last night, Ombudsman Merceditas Gutierrez had a meeting with Moreno to discuss
Mendoza's case that led to his dismissal from the service. Ombudsman spokesman Jose de Jesus
said Gutierrez gave a "sealed letter" to Moreno to be delivered to Mendoza. De Jesus did not
elaborate on the contents of the letter but said Moreno was tasked to personally deliver the letter to
Mendoza.

MPD spokesman Chief Inspector Edwin Margarejo said Mendoza was apparently distraught by the
slow process of the Ombudsman in deciding his motion for reconside-ration. He said the PNP-
Internal Affairs Service and the Manila Regional Trial Court had already dismissed crim-inal cases
against him.

The hostage drama began when Mendoza flagged down the Hong Thai Travel Tourist bus (TVU-
799), pretend-ing to hitch a ride. Margarejo said the bus had just left Fort Santiago in Intramuros
when Mendoza asked the driver to let him get on and ride to Quirino Grandstand. Upon reaching the
Quirino Grandstand, Mendoza an-nounced to the passengers that they would be taken hostage.
"Having worn his (police) uniform, of course there is no doubt that he already planned the hostage
taking," Margarejo said. - Sandy Araneta, Nestor Etolle, Delon Porcalla, Amanda Fisher, Cecille
Suerte Felipe, Christi-na Mendez, AP Grandstand Carnage, The Philippine Star, Updated August 24,
2010 12:00 AM, Val Rodri-guez. 4
In a completely separate incident much earlier in time, more particularly in December of 2003, 28-
year-old Juan Paolo Garcia and 23-year-old Ian Carl Garcia were caught in the United States
smuggling $100,000 from Manila by concealing the cash in their luggage and making false
statements to US Customs Officers. The Garcia brothers pleaded guilty to bulk cash smuggling and
agreed to forfeit the amount in favor of the US Government in exchange for the dismissal of the rest
of the charges against them and for being sentenced to time served. Inevitably, however, an
investigation into the source of the smuggled currency conducted by US Federal Agents and the
Philippine Government unraveled a scandal of military corruption and amassed wealth -- the boys'
father, Retired Major General Carlos F. Garcia, former Chief Procurement Officer of the Armed
Forces, had accumulated more than ₱ 300 Million during his active military service. Plunder and
Anti-Money Laundering cases were eventually filed against Major General Garcia, his wife and their
two sons before the Sandiganbayan.

G.R. No. 196231

Sometime in 2008, a formal charge for Grave Misconduct (robbery, grave threats, robbery extortion
5 

and physical injuries) was filed before the Philippine National Police-National Capital Region (PNP-
NCR) against Manila Police District Senior Inspector (P/S Insp.) Rolando Mendoza, and four others,
namely, Police Inspector Nelson Lagasca, Senior Police Inspector I Nestor David, Police Officer III
Wilson Gavino, and Police Officer II Roderick Lopena. A similar charge was filed by the private
complainant, Christian M. Kalaw, before the Office of the City Prosecutor, Manila, docketed as I.S.
No. 08E-09512.

On July 24, 2008, while said cases were still pending, the Office of the Regional Director of the
National Police Commission (NPC) turned over, upon the request of petitioner Emilio A. Gonzales III,
all relevant documents and evidence in relation to said case to the Office of the Deputy Ombudsman
for appropriate administrative adjudication. Subsequently, Case No. OMB-P-A-08-0670-H for Grave
6 

Misconduct was lodged against P/S Insp. Rolando Mendoza and his fellow police officers, who filed
their respective verified position papers as directed.

Meanwhile, on August 26, 2008, I.S. No. 08E-09512 was dismissed upon a finding that the material
7 

allegations made by the complainant had not been substantiated "by any evidence at all to warrant
the indictment of respondents of the offenses charged." Similarly, the Internal Affairs Service of the
PNP issued a Resolution dated October 17, 2008 recommending the dismissal without prejudice of
8 

the administrative case against the same police officers, for failure of the complainant to appear in
three (3) consecutive hearings despite due notice.

However, on February 16, 2009, upon the recommendation of petitioner Emilio Gonzales III, a
Decision in Case No. OMB-P-A-08-0670-H finding P/S Insp. Rolando Mendoza and his fellow police
9 

officers guilty of Grave Misconduct was approved by the Ombudsman. The dispositive portion of
said Decision reads:

WHEREFORE, it is respectfully recommended that respondents P/S Insp. ROLANDO DEL

ROSARIO MENDOZA and PO3 WILSON MATIC GAVINO of PRO-ARMM, Camp Brig. Gen.
Salipada K. Pendatun, Parang, Shariff Kabunsuan; P/INSP. NELSON URBANO LAGASCA, SPO1
NESTOR REYES DAVID and PO2 RODERICK SALVA LOPEÑA of Manila Police District,
Headquarters, United Nations Avenue, Manila, be meted the penalty of DISMISSAL from the
Service, pursuant to Section 52 (A), Rule IV, Uniform Rules on Administrative Cases in the Civil
Service, with the accessory penalties of forfeiture of retirement benefits and perpetual
disqualification from reemployment in the government service pursuant to Section 58, Rule IV of the
same Uniform Rules of Administrative Cases in the Civil Service, for having committed GRAVE
MISCONDUCT.
On November 5, 2009, they filed a Motion for Reconsideration of the foregoing Decision, followed
10 

by a Supplement to the Motion for Reconsideration on November 19, 2009. On December 14, 2009,
11 

the pleadings mentioned and the records of the case were assigned for review and recommendation
to Graft Investigation and Prosecutor Officer Dennis L. Garcia, who released a draft Order on April
12 

5, 2010 for appropriate action by his immediate superior, Director Eulogio S. Cecilio, who, in turn,
signed and forwarded said Order to petitioner Gonzalez's office on April 27, 2010. Not more than ten
(10) days after, more particularly on May 6, 2010, petitioner endorsed the Order, together with the
case records, for final approval by Ombudsman Merceditas N. Gutierrez, in whose office it remained
pending for final review and action when P/S Insp. Mendoza hijacked a bus-load of foreign tourists
on that fateful day of August 23, 2010 in a desperate attempt to have himself reinstated in the police
service.

In the aftermath of the hostage-taking incident, which ended in the tragic murder of eight HongKong
Chinese nationals, the injury of seven others and the death of P/S Insp. Rolando Mendoza, a public
outcry against the blundering of government officials prompted the creation of the Incident
Investigation and Review Committee (IIRC), chaired by Justice Secretary Leila de Lima and vice-
13 

chaired by Interior and Local Government Secretary Jesus Robredo. It was tasked to determine
accountability for the incident through the conduct of public hearings and executive sessions.
However, petitioner, as well as the Ombudsman herself, refused to participate in the IIRC
proceedings on the assertion that the Office of the Ombudsman is an independent constitutional
body.

Sifting through testimonial and documentary evidence, the IIRC eventually identified petitioner
Gonzales to be among those in whom culpability must lie. In its Report, the IIRC made the following
14 

findings:

Deputy Ombudsman Gonzales committed serious and inexcusable negligence and gross violation of
their own rules of procedure by allowing Mendoza's motion for reconsideration to languish for more
than nine (9) months without any justification, in violation of the Ombudsman prescribed rules to
resolve motions for reconsideration in administrative disciplinary cases within five (5) days from
submission. The inaction is gross, considering there is no opposition thereto. The prolonged inaction
precipitated the desperate resort to hostage-taking.

More so, Mendoza's demand for immediate resolution of his motion for reconsideration is not without
legal and compelling bases considering the following:

(a) PSI Mendoza and four policemen were investigated by the Ombudsman involving
a case for alleged robbery (extortion), grave threats and physical injuries amounting
to grave misconduct allegedly committed against a certain Christian Kalaw. The
same case, however, was previously dismissed by the Manila City Prosecutors
Office for lack of probable cause and by the PNP-NCR Internal Affairs Service for
failure of the complainant (Christian Kalaw) to submit evidence and prosecute the
case. On the other hand, the case which was filed much ahead by Mendoza et al.
against Christian Kalaw involving the same incident, was given due course by the
City Prosecutors Office.

(b) The Ombudsman exercised jurisdiction over the case based on a letter issued
motu proprio for Deputy Ombudsman Emilio A. Gonzalez III, directing the PNP-NCR
- without citing any reason - to endorse the case against Mendoza and the arresting
policemen to his office for administrative adjudication, thereby showing undue
interest on the case. He also caused the docketing of the case and named Atty.
Clarence V. Guinto of the PNP-CIDG-NCR, who indorsed the case records, as the
 nominal complainant, in lieu of Christian Kalaw. During the proceedings, Christian
Kalaw did not also affirm his complaint-affidavit with the Ombudsman or submit any
position paper as required.

(c) Subsequently, Mendoza, after serving preventive suspension, was adjudged

liable for grave misconduct by Deputy Ombudsman Gonzales (duly approved on May
21, 2009) based on the sole and uncorroborated complaint-affidavit of Christian
Kalaw, which was not previously sustained by the City Prosecutor's Office and the
PNP Internal Affairs Service. From the said Resolution, Mendoza interposed a timely
motion for reconsideration (dated and filed November 5, 2009) as well as a
supplement thereto. No opposition or comment was filed thereto.

(d) Despite the pending and unresolved motion for reconsideration, the judgment of
dismissal was enforced, thereby abruptly ending Mendoza's 30 years of service in
the PNP with forfeiture of all his benefits. As a result, Mendoza sought urgent relief
by sending several hand-written letter-requests to the Ombudsman for immediate
resolution of his motion for reconsideration. But his requests fell on deaf ears.

xxxx

By allowing Mendoza's motion for reconsideration to languish for nine long (9) months without any
justification, Ombudsman Gutierrez and Deputy Ombudsman Gonzales committed complete and
wanton violation of the Ombudsman prescribed rule to resolve motions for reconsideration in
administrative disciplinary cases within five (5) days from submission (Sec. 8, Ombudsman Rules of
Procedure). The inaction is gross, there being no opposition to the motion for reconsideration.

Besides, the Ombudsman, without first resolving the motion for reconsideration, arbitrarily enforced
the judgment of dismissal and ignored the intervening requests for immediate resolution, thereby
rendering the inaction even more inexcusable and unjust as to amount to gross negligence and
grave misconduct.

SECOND, Ombudsman Gutierrez and Deputy Ombudsman Gonzales committed serious disregard
of due process, manifest injustice and oppression in failing to provisionally suspend the further
implementation of the judgment of dismissal against Mendoza pending disposition of his unresolved
motion for reconsideration.

By enforcing the judgment of dismissal without resolving the motion for reconsideration for over nine
months, the two Ombudsman officials acted with arbitrariness and without regard to due process
and the constitutional right of an accused to the speedy disposition of his case. As long as his
motion for reconsideration remained pending and unresolved, Mendoza was also effectively
deprived of the right to avail of the ordinary course of appeal or review to challenge the judgment of
dismissal before the higher courts and seek a temporary restraining order to prevent the further
execution thereof.

As such, if the Ombudsman cannot resolve with dispatch the motion for reconsideration, it should
have provisionally suspended the further enforcement of the judgment of dismissal without prejudice
to its re-implementation if the reconsideration is eventually denied. Otherwise, the Ombudsman will
benefit from its own inaction. Besides, the litigant is entitled to a stay of the execution pending
resolution of his motion for reconsideration. Until the motion for reconsideration is denied, the
adjudication process before the Ombudsman cannot be considered as completely finished and,
hence, the judgment is not yet ripe for execution.
 xxxx

When the two Ombudsman officials received Mendoza's demand for the release of the final order
resolving his motion for reconsideration, they should have performed their duty by resolving the
reconsideration that same day since it was already pending for nine months and the prescribed
period for its resolution is only five days. Or if they cannot resolve it that same day, then they should
have acted decisively by issuing an order provisionally suspending the further enforcement of the
judgment of dismissal subject to revocation once the reconsideration is denied and without prejudice
to the arrest and prosecution of Mendoza for the hostage-taking. Had they done so, the crisis may
have ended peacefully, without necessarily compromising the integrity of the institution. After all, as
relayed to the negotiators, Mendoza did express willingness to take full responsibility for the
hostage-taking if his demand for release of the final decision or reinstatement was met.

But instead of acting decisively, the two Ombudsman officials merely offered to review a pending
motion for review of the case, thereby prolonging their inaction and aggravating the situation. As
expected, Mendoza - who previously berated Deputy Gonzales for allegedly demanding Php150,000
in exchange for favorably resolving the motion for reconsideration - rejected and branded as trash
("basura") the Ombudsman [sic] letter promising review, triggering the collapse of the negotiations.
To prevent the situation from getting out of hand, the negotiators sought the alternative option of
securing before the PNP-NCRPO an order for Mendoza's provisional reinstatement pending
resolution of the motion for reconsideration. Unfortunately, it was already too late. But had the
Ombudsman officials performed their duty under the law and acted decisively, the entire crisis may
have ended differently.

The IIRC recommended that its findings with respect to petitioner Gonzales be referred to the Office
of the President (OP) for further determination of possible administrative offenses and for the
initiation of the proper administrative proceedings.

On October 15, 2010, the OP instituted a Formal Charge against petitioner Gonzales for Gross
15 

Neglect of Duty and/or Inefficiency in the Performance of Official Duty under Rule XIV, Section 22 of
the Omnibus Rules Implementing Book V of E.O. No. 292 and other pertinent Civil

Service Laws, rules and regulations, and for Misconduct in Office under Section 3 of the Anti-Graft
and Corrupt Practices Act. Petitioner filed his Answer thereto in due time.
16  17 

Shortly after the filing by the OP of the administrative case against petitioner, a complaint dated
October 29, 2010 was filed by Acting Assistant Ombudsman Joselito P. Fangon before the Internal
Affairs Board of the Office of the Ombudsman charging petitioner with "directly or indirectly
requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other
person, in connection with any contract or transaction between the Government and any other party,
wherein the public officer in his official capacity has to intervene under the law" under Section 3(b) of
the Anti-Graft and Corrupt Practices Act, and also, with solicitation or acceptance of gifts under
Section 7(d) of the Code of Conduct and Ethical Standards. In a Joint Resolution dated February
18  19 

17, 2011, which was approved by Ombudsman Ma. Merceditas N. Gutierrez, the complaint was
dismissed, as follows:

WHEREFORE, premises considered, finding no probable cause to indict respondent Emilio A.

Gonzales III for violations of Section 3(b) of R.A. No. 3019 and Section 7(d) of R.A. No. 6713, the
complaint is hereby be [sic] DISMISSED.

Further, finding no sufficient evidence to hold respondent administratively liable for Misconduct, the
same is likewise DISMISSED.
Meanwhile, the OP notified petitioner that a Preliminary Clarificatory Conference relative to the
20 

administrative charge against him was to be conducted at the Office of the Deputy Executive
Secretary for Legal Affairs (ODESLA) on February 8, 2011. Petitioner Gonzales alleged, however,
21 

that on February 4, 2011, he heard the news that the OP had announced his suspension for one
year due to his delay in the disposition of P/S Insp. Mendoza's motion for reconsideration. Hence,
believing that the OP had already prejudged his case and that any proceeding before it would simply
be a charade, petitioner no longer attended the scheduled clarificatory conference. Instead, he filed
an Objection to Proceedings on February 7, 2011. Despite petitioner's absence, however, the OP
22 

pushed through with the proceedings and, on March 31, 2011, rendered the assailed Decision, the 23 

dispositive portion of which reads:

WHEREFORE, in view of the foregoing, this Office finds Deputy Ombudsman Emilio A. Gonzales III
guilty of Gross Neglect of Duty and Grave Misconduct constituting betrayal of public trust, and
hereby meted out the penalty of DISMISSAL from service.

SO ORDERED.

Hence, the petition.

G.R. No. 196232

In April of 2005, the Acting Deputy Special Prosecutor of the Office of the Ombudsman charged
Major General Carlos F. Garcia, his wife Clarita D. Garcia, their sons Ian Carl Garcia, Juan Paulo
Garcia and Timothy Mark Garcia and several unknown persons with Plunder (Criminal Case No.
28107) and Money Laundering (Criminal Case No. SB09CRM0194) before the Sandiganbayan.

On January 7, 2010, the Sandiganbayan denied Major General Garcia's urgent petition for bail
holding that strong prosecution evidence militated against the grant of bail. On March 16, 2010,
however, the government, represented by petitioner, Special Prosecutor Wendell Barreras-Sulit
("Barreras-Sulit") and her prosecutorial staff sought the Sandiganbayan's approval of a Plea
Bargaining Agreement (hereinafter referred to as "PLEBARA") entered into with the accused. On
May 4, 2010, the Sandiganbayan issued a Resolution finding the change of plea warranted and the
PLEBARA compliant with jurisprudential guidelines.

Outraged by the backroom deal that could allow Major General Garcia to get off the hook with
nothing but a slap on the hand notwithstanding the prosecution's apparently strong evidence of his
culpability for serious public offenses, the House of Representatives' Committee on Justice
conducted public hearings on the PLEBARA. At the conclusion of these public hearings, the
Committee on Justice passed and adopted Committee Resolution No. 3, recommending to the
24 

President the dismissal of petitioner Barreras-Sulit from the service and the filing of appropriate
charges against her Deputies and Assistants before the appropriate government office for having
committed acts and/or omissions tantamount to culpable violations of the Constitution and betrayal
of public trust, which are violations under the Anti-Graft and Corrupt Practices Act and grounds for
removal from office under the Ombudsman Act.

The Office of the President initiated OP-DC-Case No. 11-B-003 against petitioner Barreras-Sulit. In
her written explanation, petitioner raised the defenses of prematurity and the lack of jurisdiction of
the OP with respect to the administrative disciplinary proceeding against her. The OP, however, still
proceeded with the case, setting it for preliminary investigation on April 15, 2011.

Hence, the petition.

The Issues

In G.R. No. 196231, petitioner Gonzales raises the following grounds, to wit:

(A)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE OTHER INDIVIDUAL

RESPONDENTS, HAS NO CONSTITUTIONAL OR VALID STATUTORY AUTHORITY TO
SUBJECT PETITIONER TO AN ADMINISTRATIVE INVESTIGATION AND TO THEREAFTER
ORDER HIS REMOVAL AS DEPUTY OMBUDSMAN.

(B)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE OTHER INDIVIDUAL

RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT CONDUCTED ITS INVESTIGATION AND RENDERED ITS DECISION IN
VIOLATION OF PETITIONER'S RIGHT TO DUE PROCESS.

(C)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL

RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FINDING THAT PETITIONER COMMITTED DELAY IN THE DISPOSITION OF
MENDOZA'S MOTION FOR RECONSIDERATION.

(D)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL

RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FINDING THAT PETITIONER TOOK UNDUE INTEREST IN MENDOZA'S
CASE.

(E)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL

RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FAULTING PETITIONER FOR NOT RELEASING THE RESOLUTION ON
MENDOZA'S MOTION FOR RECONSIDERATION OR FOR NOT SUSPENDING MENDOZA'S
DISMISSAL FROM SERVICE DURING THE HOSTAGE CRISIS.

(F)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL

RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FINDING THAT THERE WAS SUBSTANTIAL EVIDENCE TO SHOW THAT
PETITIONER DEMANDED A BRIBE FROM MENDOZA. 25

On the other hand, in G.R. No. 196232, petitioner Barreras-Sulit poses for the Court the question -

AS OF THIS POINT IN TIME, WOULD TAKING AND CONTINUING TO TAKE ADMINISTRATIVE

DISCIPLINARY PROCEEDING AGAINST PETITIONER BE LAWFUL AND JUSTIFIABLE? 26
Re-stated, the primordial question in these two petitions is whether the Office of the President has
jurisdiction to exercise administrative disciplinary power over a Deputy Ombudsman and a Special
Prosecutor who belong to the constitutionally-created Office of the Ombudsman.

The Court's Ruling

Short of claiming themselves immune from the ordinary means of removal, petitioners asseverate
that the President has no disciplinary jurisdiction over them considering that the Office of the
Ombudsman to which they belong is clothed with constitutional independence and that they, as
Deputy Ombudsman and Special Prosecutor therein, necessarily bear the constitutional attributes of
said office.

The Court is not convinced.

The Ombudsman's administrative

disciplinary power over a Deputy
Ombudsman and Special Prose-cutor is not exclusive.

It is true that the authority of the Office of the Ombudsman to conduct administrative investigations
proceeds from its constitutional mandate to be an effective protector of the people against inept and
corrupt government officers and employees, and is subsumed under the broad powers "explicitly
27 

conferred" upon it by the 1987 Constitution and R.A. No. 6770. 28

The ombudsman traces its origins to the primitive legal order of Germanic tribes. The Swedish term,
which literally means "agent" or "representative," communicates the concept that has been carried
on into the creation of the modern-day ombudsman, that is, someone who acts as a neutral
representative of ordinary citizens against government abuses. This idea of a people's protector
29 

was first institutionalized in the Philippines under the 1973 Constitution with the creation of the
Tanodbayan, which wielded the twin powers of investigation and prosecution. Section 6, Article XIII
of the 1973 Constitution provided thus:

Sec. 6. The Batasang Pambansa shall create an office of the Ombudsman, to be known as
Tanodbayan, which shall receive and investigate complaints relative to public office, including those
in government-owned or controlled corporations, make appropriate recommendations, and in case of
failure of justice as defined by law, file and prosecute the corresponding criminal, civil, or
administrative case before the proper court or body.

The framers of the 1987 Constitution later envisioned a more effective ombudsman vested with
authority to "act in a quick, inexpensive and effective manner on complaints against administrative
officials", and to function purely with the "prestige and persuasive powers of his office" in correcting
improprieties, inefficiencies and corruption in government freed from the hampering effects of
prosecutorial duties. Accordingly, Section 13, Article XI of the 1987 Constitution enumerates the
30 

following powers, functions, and duties of the Office of the Ombudsman, viz:

(1)    Investigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or
inefficient.

(2)    Direct, upon complaint or at its own instance, any public official or employee of the
Government, or any subdivision, agency or instrumentality thereof, as well as of any government-
owned or controlled corporation with original charter, to perform and expedite any act or duty
required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of
duties.

(3)    Direct the officer concerned to take appropriate action against a public official or employee at
fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith.

(4)    Direct the officer concerned, in any appropriate case, and subject to such limitations as may be
provided by law, to furnish it with copies of documents relating to contracts or transactions entered
into by his office involving the disbursement or use of public funds or properties, and report any
irregularity to the Commission on Audit for appropriate action.

(5)    Request any government agency for assistance and information necessary in the discharge of
its responsibilities, and to examine, if necessary, pertinent records and documents.

(6)    Publicize matters covered by its investigation when circumstances so warrant and with due
prudence.

(7)    Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the
Government and make recommendations for their elimination and the observance of high standards
of ethics and efficiency.

(8)    Promulgate its rules of procedure and exercise such other powers or perform such functions or
duties as may be provided by law. 31

Congress thereafter passed, on November 17, 1989, Republic Act No. 6770, the Ombudsman Act of
1989, to shore up the Ombudsman's institutional strength by granting it "full administrative
disciplinary power over public officials and employees," as follows:
32 

Sec. 21. Officials Subject to Disciplinary Authority; Exceptions. - The Office of the Ombudsman shall
have disciplinary authority over all elective and appointive officials of the Government and its
subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government,
government-owned or controlled corporations and their subsidiaries, except over officials who may
be removed only by impeachment or over Members of Congress, and the Judiciary.(Emphasis
supplied)

In the exercise of such full administrative disciplinary authority, the Office of the Ombudsman was
explicitly conferred the statutory power to conduct administrative investigations under Section 19 of
the same law, thus:

Sec. 19. Administrative complaints. - The Ombudsman shall act on all complaints relating, but not
limited, to acts or omissions which:

1. Are contrary to law or regulation;

2. Are unreasonable, unfair, oppressive or discriminatory;

3. Are inconsistent with the general course of an agency's functions, though in accordance with law;

4. Proceed from a mistake of law or an arbitrary ascertainment of facts;

5. Are in the exercise of discretionary powers but for an improper purpose; or

6. Are otherwise irregular, immoral or devoid of justification.

While the Ombudsman's authority to discipline administratively is extensive and covers all
government officials, whether appointive or elective, with the exception only of those officials
removable by impeachment, the members of congress and the judiciary, such authority is by no
means exclusive. Petitioners cannot insist that they should be solely and directly subject to the
disciplinary authority of the Ombudsman. For, while Section 21 declares the Ombudsman's
disciplinary authority over all government officials, Section 8(2), on the other hand, grants the
President express power of removal over a Deputy Ombudsman and a Special Prosecutor. Thus:

Section 8. Removal; Filling of Vacancy.-

xxxx

(2) A Deputy or the Special Prosecutor, may be removed from office by the President for any of the
grounds provided for the removal of the Ombudsman, and after due process.

It is a basic canon of statutory construction that in interpreting a statute, care should be taken that
every part thereof be given effect, on the theory that it was enacted as an integrated measure and
not as a hodge-podge of conflicting provisions. A construction that would render a provision
inoperative should be avoided; instead, apparently inconsistent provisions should be reconciled
whenever possible as parts of a coordinated and harmonious whole. Otherwise stated, the law must
33 

not be read in truncated parts. Every part thereof must be considered together with the other parts,
and kept subservient to the general intent of the whole enactment. 34

A harmonious construction of these two apparently conflicting provisions in R.A. No. 6770 leads to
the inevitable conclusion that Congress had intended the Ombudsman and the President to exercise
concurrent disciplinary jurisdiction over petitioners as Deputy Ombudsman and Special

Prosecutor, respectively. This sharing of authority goes into the wisdom of the legislature, which
prerogative falls beyond the pale of judicial inquiry. The Congressional deliberations on this matter
are quite insightful, viz:

x x x Senator Angara explained that the phrase was added to highlight the fact that the Deputy
Tanodbayan may only be removed for cause and after due process. He added that the President
alone has the power to remove the Deputy Tanodbayan.

Reacting thereto, Senator Guingona observed that this might impair the independence of the
Tanodbayan and suggested that the procedural removal of the Deputy Tanodbayan...; and that he
can be removed not by the President but by the Ombudsman.

However, the Chair expressed apprehension that the Ombudsman and the Deputy Ombudsman
may try to protect one another. The Chair suggested the substitution of the phrase "after due
process" with the words after due notice and hearing with the President as the ultimate authority.

Senator Guingona contended, however, that the Constitution provides for an independent Office of
the Tanodbayan, and to allow the Executive to have disciplinary powers over the Tanodbayan
Deputies would be an encroachment on the independence of the Tanodbayan.
Replying thereto, Senator Angara stated that originally, he was not averse to the proposal, however,
considering the Chair's observation that vesting such authority upon the Tanodbayan itself could
result in mutual protection, it is necessary that an outside official should be vested with such
authority to effect a check and balance. 35

Indubitably, the manifest intent of Congress in enacting both provisions - Section 8(2) and Section
21 - in the same Organic Act was to provide for an external authority, through the person of the
President, that would exercise the power of administrative discipline over the Deputy Ombudsman
and Special Prosecutor without in the least diminishing the constitutional and plenary authority of the
Ombudsman over all government officials and employees. Such legislative design is simply a
measure of "check and balance" intended to address the lawmakers' real and valid concern that the
Ombudsman and his Deputy may try to protect one another from administrative liabilities.

This would not be the first instance that the Office of the President has locked horns with the
Ombudsman on the matter of disciplinary jurisdiction. An earlier conflict had been settled in favor of
shared authority in Hagad v. Gozo Dadole. In said case, the Mayor and Vice-Mayor of Mandaue
36 

City, and a member of the Sangguniang Panlungsod, were charged before the Office of the Deputy
Ombudsman for the Visayas with violations of R.A. No. 3019, R.A. No. 6713, and the Revised Penal
Code. The pivotal issue raised therein was whether the Ombudsman had been divested of his
authority to conduct administrative investigations over said local elective officials by virtue of the
subsequent enactment of the Local Government Code of 1991 (R.A. No. 7160), the pertinent
provision of which states:

Sec. 61. Form and Filing of Administrative Complaints.- A verified complaint against any erring local
elective official shall be prepared as follows:

(a) A complaint against any elective official of a province, a highly urbanized city, an independent
component city or component city shall be filed before the Office of the President.

The Court resolved said issue in the negative, upholding the ratiocination of the Solicitor General
that R.A. No. 7160 should be viewed as having conferred on the Office of the President, but not on
an exclusive basis, disciplinary authority over local elective officials. Despite the fact that R.A. No.
7160 was the more recent expression of legislative will, no repeal of pertinent provisions in the
Ombudsman Act was inferred therefrom. Thus said the Court:

Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether
expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the
specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only
uphold one and strike down the other. Well settled is the rule that repeals of laws by implication are
not favored, and that courts must generally assume their congruent application. The two laws must
be absolutely incompatible, and a clear finding thereof must surface, before the inference of implied
repeal may be drawn. The rule is expressed in the maxim, interpretare et concordare legibus est
optimus interpretendi, i.e., every statute must be so interpreted and brought into accord with other
laws as to form a uniform system of jurisprudence. The fundament is that the legislature should be
presumed to have known the existing laws on the subject and not to have enacted conflicting
statutes. Hence, all doubts must be resolved against any implied repeal, and all efforts should be
exerted in order to harmonize and give effect to all laws on the subject. 37

While Hagad v. Gozo Dadole upheld the plenary power of the Office of the Ombudsman to
38 

discipline elective officials over the same disciplinary authority of the President under R.A. No. 7160,
the more recent case of the Office of the Ombudsman v. Delijero tempered the exercise by the
39 

Ombudsman of such plenary power invoking Section 23(2) of R.A. No. 6770, which gives the
40 
Ombudsman the option to "refer certain complaints to the proper disciplinary authority for the
institution of appropriate administrative proceedings against erring public officers or employees." The
Court underscored therein the clear legislative intent of imposing "a standard and a separate set of
procedural requirements in connection with administrative proceedings involving public school
teachers" with the enactment of R.A. No. 4670, otherwise known as "The Magna Carta for Public
41 

School Teachers." It thus declared that, while the Ombudsman's administrative disciplinary authority
over a public school teacher is concurrent with the proper investigating committee of the Department
of Education, it would have been more prudent under the circumstances for the Ombudsman to have
referred to the DECS the complaint against the public school teacher.

Unquestionably, the Ombudsman is possessed of jurisdiction to discipline his own people and mete
out administrative sanctions upon them, including the extreme penalty of dismissal from the service.
However, it is equally without question that the President has concurrent authority with respect to
removal from office of the Deputy Ombudsman and Special Prosecutor, albeit under specified
conditions. Considering the principles attending concurrence of jurisdiction where the Office of the
President was the first to initiate a case against petitioner Gonzales, prudence should have
prompted the Ombudsman to desist from proceeding separately against petitioner through its
Internal Affairs Board, and to defer instead to the President's assumption of authority, especially
when the administrative charge involved "demanding and soliciting a sum of money" which
constitutes either graft and corruption or bribery, both of which are grounds reserved for the
President's exercise of his authority to remove a Deputy Ombudsman.

In any case, assuming that the Ombudsman's Internal Affairs Board properly conducted a
subsequent and parallel administrative action against petitioner, its earlier dismissal of the charge of
graft and corruption against petitioner could not have the effect of preventing the Office of the
President from proceeding against petitioner upon the same ground of graft and corruption. After all,
the doctrine of res judicata applies only to judicial or quasi-judicial proceedings, not to the exercise of
administrative powers. In Montemayor v. Bundalian, the Court sustained the President's dismissal
42  43 

from service of a Regional Director of the Department of Public Works and Highways (DPWH) who
was found liable for unexplained wealth upon investigation by the now defunct Philippine
Commission Against Graft and Corruption (PCAGC). The Court categorically ruled therein that the
prior dismissal by the Ombudsman of similar charges against said official did not operate as res
judicata in the PCAGC case.

By granting express statutory

power to the President to remove
a Deputy Ombudsman and a
Special Prosecutor, Congress
merely filled an obvious gap in
the law.

Section 9, Article XI of the 1987 Constitution confers upon the President the power to appoint the
Ombudsman and his Deputies, viz:

Section 9. The Ombudsman and his Deputies shall be appointed by the President from a list of at
least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees for
every vacancy thereafter. Such appointments shall require no confirmation. All vacancies shall be
filled within three months after they occur.

While the removal of the Ombudsman himself is also expressly provided for in the Constitution,
which is by impeachment under Section 244 of the same Article, there is, however, no constitutional
provision similarly dealing with the removal from office of a Deputy Ombudsman, or a Special
Prosecutor, for that matter. By enacting Section 8(2) of R.A. 6770, Congress simply filled a gap in
the law without running afoul of any provision in the Constitution or existing statutes. In fact, the
Constitution itself, under Section 2, authorizes Congress to provide for the removal of all other public
officers, including the Deputy Ombudsman and Special Prosecutor, who are not subject to
impeachment.

That the Deputies of the Ombudsman were intentionally excluded from the enumeration of
impeachable officials is clear from the following deliberations of the Constitutional Commission,
45 

thus:

MR. REGALADO. Yes, thank you. On Section 10, regarding the Ombudsman, there has been
concern aired by Commissioner Rodrigo about who will see to it that the Ombudsman will perform
his duties because he is something like a guardian of the government. This recalls the statement of
Juvenal that while the Ombudsman is the guardian of the people, "Quis custodiet ipsos custodies",
who will guard the guardians? I understand here that the Ombudsman who has the rank of a
chairman of a constitutional commission is also removable only by impeachment.

MR. ROMULO. That is the intention, Madam President.

MR. REGALADO. Only the Ombudsman?

MR. MONSOD. Only the Ombudsman.

MR. REGALADO. So not his deputies, because I am concerned with the phrase "have the rank of".
We know, for instance, that the City Fiscal of Manila has the rank of a justice of the Intermediate
Appellate Court, and yet he is not a part of the judiciary. So I think we should clarify that also and
read our discussions into the Record for purposes of the Commission and the Committee. 46

xxx

THE PRESIDENT. The purpose of the amendment of Commissioner Davide is not just to include the
Ombudsman among those officials who have to be removed from office only onimpeachment. Is that
right?

MR. DAVIDE. Yes, Madam President.

MR. RODRIGO. Before we vote on the amendment, may I ask a question?

THE PRESIDENT. Commissioner Rodrigo is recognized.

MR. RODRIGO. The Ombudsman, is this only one man?

MR. DAVIDE. Only one man.

MR. RODRIGO. Not including his deputies.

MR. MONSOD. No. (Emphasis supplied)

47 

The Power of the President to

Remove a Deputy Ombudsman
and a Special Prosecutor is
Implied from his Power to
Appoint.

Under the doctrine of implication, the power to appoint carries with it the power to remove. As a
48 

general rule, therefore, all officers appointed by the President are also removable by him. The
49 

exception to this is when the law expressly provides otherwise - that is, when the power to remove is
expressly vested in an office or authority other than the appointing power. In some cases, the
Constitution expressly separates the power to remove from the President's power to appoint. Under
Section 9, Article VIII of the 1987 Constitution, the Members of the Supreme Court and judges of
lower courts shall be appointed by the President. However, Members of the Supreme Court may be
removed after impeachment proceedings initiated by Congress (Section 2, Article XI), while judges
of lower courts may be removed only by the Supreme Court by virtue of its administrative
supervision over all its personnel (Sections 6 and 11, Article VIII). The Chairpersons and
Commissioners of the Civil Service Commission Section 1(2), Article IX(B), the Commission on
Elections Section 1(2), Article IX(C), and the Commission on Audit Section 1(2), Article IX(D) shall
likewise be appointed by the President, but they may be removed only by impeachment (Section 2,
Article XI). As priorly stated, the Ombudsman himself shall be appointed by the President (Section 9,
Article XI) but may also be removed only by impeachment (Section 2, Article XI).

In giving the President the power to remove a Deputy Ombudsman and Special Prosecutor,
Congress simply laid down in express terms an authority that is already implied from the President's
constitutional authority to appoint the aforesaid officials in the Office of the Ombudsman.

The Office of the Ombudsman is charged with monumental tasks that have been generally
categorized into investigatory power, prosecutorial power, public assistance, authority to inquire and
obtain information and the function to adopt, institute and implement preventive measures. In order
50 

to ensure the effectiveness of his constitutional role, the Ombudsman was provided with an over-all
deputy as well as a deputy each for Luzon, Visayas and Mindanao. However, well into the
deliberations of the Constitutional Commission, a provision for the appointment of a separate deputy
for the military establishment was necessitated by Commissioner Ople's lament against the rise
within the armed forces of "fraternal associations outside the chain of command" which have
become the common soldiers' "informal grievance machinery" against injustice, corruption and
neglect in the uniformed service, thus:
51 

In our own Philippine Armed Forces, there has arisen in recent years a type of fraternal association
outside the chain of command proposing reformist objectives. They constitute, in fact, an informal
grievance machinery against injustices to the rank and file soldiery and perceive graft in higher rank
and neglect of the needs of troops in combat zones. The Reform the Armed Forces Movement of
RAM has kept precincts for pushing logistics to the field, the implied accusation being that most of
the resources are used up in Manila instead of sent to soldiers in the field. The Guardians, the El
Diablo and other organizations dominated by enlisted men function, more or less, as grievance
collectors and as mutual aid societies.

This proposed amendment merely seeks to extend the office of the Ombudsman to the military
establishment, just as it champions the common people against bureaucratic indifference. The
Ombudsman can designate a deputy to help the ordinary foot soldier get through with his grievance
to higher authorities. This deputy will, of course work in close cooperation with the Minister of
National Defense because of the necessity to maintain the integrity of the chain of command.
Ordinary soldiers, when they know they can turn to a military Ombudsman for their complaints, may
not have to fall back on their own informal devices to obtain redress for their grievances. The
Ombudsman will help raise troop morale in accordance with a major professed goal of the President
and the military authorities themselves. x x x
The add-on now forms part of Section 5, Article XI which reads as follows:

Section 5. There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one over-all Deputy and at least one Deputy each for
Luzon, Visayas and Mindanao. A separate deputy for the military establishment shall likewise be
appointed. (Emphasis supplied)

The integrity and effectiveness of the Deputy Ombudsman for the MOLEO as a military watchdog
looking into abuses and irregularities that affect the general morale and professionalism in the
military is certainly of primordial importance in relation to the President's own role asCommander-in-
Chief of the Armed Forces. It would not be incongruous for Congress, therefore, to grant the
President concurrent disciplinary authority over the Deputy Ombudsman for the military and other
law enforcement offices.

Granting the President the Power

to Remove a Deputy Ombudsman
does not Diminish the
Independence of the Office of the
Ombudsman.

The claim that Section 8(2) of R.A. No. 6770 granting the President the power to remove a Deputy
Ombudsman from office totally frustrates, if not resultantly negates the independence of the Office of
the Ombudsman is tenuous. The independence which the Office of the Ombudsman is vested with
was intended to free it from political considerations in pursuing its constitutional mandate to be a
protector of the people. What the Constitution secures for the Office of the Ombudsman is,
essentially, political independence. This means nothing more than that "the terms of office, the
salary, the appointments and discipline of all persons under the office" are "reasonably insulated
from the whims of politicians." And so it was that Section 5, Article XI of the 1987 Constitution had
52 

declared the creation of the independent Office of the Ombudsman, composed of the Ombudsman
and his Deputies, who are described as "protectors of the people" and constitutionally mandated to
act promptly on complaints filed in any form or manner against public officials or employees of the
Government Section 12, Article XI. Pertinent provisions under Article XI prescribes a term of office of
seven years without reappointment Section 11, prohibits a decrease in salaries during the term of
office Section 10, provides strict qualifications for the office Section 8, grants fiscal autonomy
Section 14 and ensures the exercise of constitutional functions Section 12 and 13. The cloak of
independence is meant to build up the Office of the Ombudsman's institutional strength to effectively
function as official critic, mobilizer of government, constitutional watchdog and protector of the
53 

people. It certainly cannot be made to extend to wrongdoings and permit the unbridled acts of its
officials to escape administrative discipline.

Being aware of the constitutional imperative of shielding the Office of the Ombudsman from political
influences and the discretionary acts of the executive, Congress laid down two restrictions on the
President's exercise of such power of removal over a Deputy Ombudsman, namely: (1) that the
removal of the Deputy Ombudsman must be for any of the grounds provided for the removal of the
Ombudsman and (2) that there must be observance of due process. Reiterating the grounds for
impeachment laid down in Section 2, Article XI of the 1987 Constitution, paragraph 1 of Section 8 of
R.A. No. 6770 states that the Deputy Ombudsman may be removed from office for the same
grounds that the Ombudsman may be removed through impeachment, namely, "culpable violation of
the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust."
Thus, it cannot be rightly said that giving the President the power to remove a Deputy Ombudsman,
or a Special Prosecutor for that matter, would diminish or compromise the constitutional
independence of the Office of the Ombudsman. It is, precisely, a measure of protection of the
independence of the Ombudsman's Deputies and Special Prosecutor in the discharge of their duties
that their removal can only be had on grounds provided by law.

In Espinosa v. Office of the Ombudsman, the Court elucidated on the nature of the Ombudsman's
54 

independence in this wise -

The prosecution of offenses committed by public officers is vested in the Office of the Ombudsman.
To insulate the Office from outside pressure and improper influence, the Constitution as well as RA
6770 has endowed it with a wide latitude of investigatory and prosecutory powers virtually free from
legislative, executive or judicial intervention. This Court consistently refrains from interfering with the
exercise of its powers, and respects the initiative and independence inherent in the Ombudsman
who, 'beholden to no one, acts as the champion of the people and the preserver of the integrity of
public service.

Petitioner Gonzales may not be

removed from office where the
questioned acts, falling short of
constitutional standards, do not
constitute betrayal of public trust.

Having now settled the question concerning the validity of the President's power to remove the
Deputy Ombudsman and Special Prosecutor, we now go to the substance of the administrative
findings in OP Case No. 10-J-460 which led to the dismissal of herein petitioner, Deputy
Ombudsman Emilio A. Gonzales, III.

At the outset, the Court finds no cause for petitioner Gonzales to complain simply because the OP
proceeded with the administrative case against him despite his non-attendance thereat. Petitioner
was admittedly able to file an Answer in which he had interposed his defenses to the formal charge
against him. Due process is satisfied when a person is notified of the charge against him and given
an opportunity to explain or defend himself. In administrative proceedings, the filing of charges and
giving reasonable opportunity for the person so charged to answer the accusations against him
constitute the minimum requirements of due process. Due process is simply having the opportunity
55 

to explain one's side, or an opportunity to seek a reconsideration of the action or ruling complained
of.
56

The essence of due process is that a party is afforded reasonable opportunity to be heard and to
submit any evidence he may have in support of his defense. Mere opportunity to be heard is
57 

sufficient. As long as petitioner was given the opportunity to explain his side and present evidence,
the requirements of due process are satisfactorily complied with because what the law abhors is an
absolute lack of opportunity to be heard. Besides, petitioner only has himself to blame for limiting his
58 

defense through the filing of an Answer. He had squandered a subsequent opportunity to elucidate
upon his pleaded defenses by adamantly refusing to attend the scheduled Clarificatory Conference
despite notice. The OP recounted as follows -

It bears noting that respondent Deputy Ombudsman Gonzalez was given two separate opportunities
to explain his side and answer the Formal Charge against him.

In the first instance, respondent was given the opportunity to submit his answer together with his
documentary evidence, which opportunity respondent actually availed of. In the second instance,
this Office called a Clarificatory Conference on 8 February 2011 pursuant to respondent's express
election of a formal investigation. Despite due notice, however, respondent Deputy Ombudsman
refused to appear for said conference, interposing an objection based on the unfounded notion that
this Office has prejudged the instant case. Respondent having been given actual and reasonable
opportunity to explain or defend himself in due course, the requirement of due process has been
satisfied.
59

In administrative proceedings, the quantum of proof necessary for a finding of guilt is substantial
evidence, which is more than a mere scintilla and means such relevant evidence as a reasonable
60 

mind might accept as adequate to support a conclusion. The fact, therefore, that petitioner later
61 

refused to participate in the hearings before the OP is not a hindrance to a finding of his culpability
based on substantial evidence, which only requires that a decision must "have something upon
which it is based."
62

Factual findings of administrative bodies are controlling when supported by substantial

evidence. The OP's pronouncement of administrative accountability against petitioner and the
63 

imposition upon him of the corresponding penalty of removal from office was based on the finding of
gross neglect of duty and grave misconduct in office amounting to a betrayal of public trust, which is
a constitutional ground for the removal by impeachment of the Ombudsman (Section 2, Article XI,
1987 Constitution), and a statutory ground for the President to remove from office a Deputy
Ombudsman and a Special Prosecutor Section 8(2) of the Ombudsman Act.

The OP held that petitioner's want of care and wrongful conduct consisted of his unexplained action
in directing the PNP-NCR to elevate P/S Insp. Mendoza's case records to his office; his failure to
verify the basis for requesting the Ombudsman to take over the case; his pronouncement of
administrative liability and imposition of the extreme penalty of dismissal on P/S Insp. Mendoza
based upon an unverified complaint-affidavit; his inordinate haste in implementing P/S Insp.
Mendoza's dismissal notwithstanding the latter's non-receipt of his copy of the Decision and the
subsequent filing of a motion for reconsideration; and his apparent unconcern that the pendency of
the motion for reconsideration for more than five months had deprived P/S Insp. Mendoza of
available remedies against the immediate implementation of the Decision dismissing him from the
service.

Thus, taking into consideration the factual determinations of the IIRC, the allegations and evidence
of petitioner in his Answer as well as other documentary evidence, the OP concluded that: (1)
petitioner failed to supervise his subordinates to act with dispatch on the draft resolution of P/S Insp.
Mendoza's motion for reconsideration and thereby caused undue prejudice to P/S Insp. Mendoza by
effectively depriving the latter of the right to challenge the dismissal before the courts and prevent its
immediate execution, and (2) petitioner showed undue interest by having P/S Insp. Mendoza's case
endorsed to the Office of the Ombudsman and resolving the same against P/S Insp. Mendoza on the
basis of the unverified complaint-affidavit of the alleged victim Christian Kalaw.

The invariable rule is that administrative decisions in matters within the executive jurisdiction can
only be set aside on proof of gross abuse of discretion, fraud, or error of law. In the instant case,
64 

while the evidence may show some amount of wrongdoing on the part of petitioner, the Court
seriously doubts the correctness of the OP's conclusion that the imputed acts amount to gross
neglect of duty and grave misconduct constitutive of betrayal of public trust. To say that petitioner's
offenses, as they factually appear, weigh heavily enough to constitute betrayal of public trust would
be to ignore the significance of the legislature's intent in prescribing the removal of the Deputy
Ombudsman or the Special Prosecutor for causes that, theretofore, had been reserved only for the
most serious violations that justify the removal by impeachment of the highest officials of the land.

Would every negligent act or misconduct in the performance of a Deputy Ombudsman's duties
constitute betrayal of public trust warranting immediate removal from office? The question calls for a
deeper, circumspective look at the nature of the grounds for the removal of a Deputy Ombudsman
and a Special Prosecutor vis-a-vis common administrative offenses.

Betrayal of public trust is a new ground for impeachment under the 1987 Constitution added to the
existing grounds of culpable violation of the Constitution, treason, bribery, graft and corruption and
other high crimes. While it was deemed broad enough to cover any violation of the oath of office, the 65 

impreciseness of its definition also created apprehension that "such an overarching standard may be
too broad and may be subject to abuse and arbitrary exercise by the legislature." Indeed, the catch-
66 

all phrase betrayal of public trust that referred to "all acts not punishable by statutes as penal
offenses but, nonetheless, render the officer unfit to continue in office" could be easily utilized for
67 

every conceivable misconduct or negligence in office. However, deliberating on some workable

standard by which the ground could be reasonably interpreted, the Constitutional Commission
recognized that human error and good faith precluded an adverse conclusion.

MR. VILLACORTA: x x x One last matter with respect to the use of the words "betrayal of public
trust" as embodying a ground for impeachment that has been raised by the Honorable Regalado. I
am not a lawyer so I can anticipate the difficulties that a layman may encounter in understanding this
provision and also the possible abuses that the legislature can commit in interpreting this phrase. It
is to be noted that this ground was also suggested in the 1971 Constitutional Convention. A review
of the Journals of that Convention will show that it was not included; it was construed as
encompassing acts which are just short of being criminal but constitute gross faithlessness against
public trust, tyrannical abuse of power, inexcusable negligence of duty, favoritism, and gross
exercise of discretionary powers. I understand from the earlier discussions that these constitute
violations of the oath of office, and also I heard the Honorable Davide say that even the criminal acts
that were enumerated in the earlier 1973 provision on this matter constitute betrayal of public trust
as well. In order to avoid confusion, would it not be clearer to stick to the wording of Section 2 which
reads: "may be removed from office on impeachment for and conviction of, culpable violation of the
Constitution, treason, bribery, and other high crimes, graft and corruption or VIOLATION OF HIS
OATH OF OFFICE", because if betrayal of public trust encompasses the earlier acts that were
enumerated, then it would behoove us to be equally clear about this last provision or phrase.

MR. NOLLEDO: x x x I think we will miss a golden opportunity if we fail to adopt the words "betrayal
of public trust" in the 1986 Constitution. But I would like him to know that we are amenable to any
possible amendment. Besides, I think plain error of judgment, where circumstances may indicate
that there is good faith, to my mind, will not constitute betrayal of public trust if that statement will
allay the fears of difficulty in interpreting the term." (Emphasis supplied)
68 

The Constitutional Commission eventually found it reasonably acceptable for the phrase betrayal of
public trust to refer to "acts which are just short of being criminal but constitute gross faithlessness
against public trust, tyrannical abuse of power, inexcusable negligence of duty, favoritism, and gross
exercise of discretionary powers." In other words, acts that should constitute betrayal of public trust
69 

as to warrant removal from office may be less than criminal but must be attended by bad faith and of
such gravity and seriousness as the other grounds for impeachment.

A Deputy Ombudsman and a Special Prosecutor are not impeachable officers. However, by
providing for their removal from office on the same grounds as removal by impeachment, the
legislature could not have intended to redefine constitutional standards of culpable violation of the
Constitution, treason, bribery, graft and corruption, other high crimes, as well as betrayal of public
trust, and apply them less stringently. Hence, where betrayal of public trust, for purposes of
impeachment, was not intended to cover all kinds of official wrongdoing and plain errors of judgment,
this should remain true even for purposes of removing a Deputy Ombudsman and Special
Prosecutor from office. Hence, the fact that the grounds for impeachment have been made statutory
grounds for the removal by the President of a Deputy Ombudsman and Special Prosecutor cannot
diminish the seriousness of their nature nor the acuity of their scope. Betrayal of public trust could
not suddenly "overreach" to cover acts that are not vicious or malevolent on the same level as the
other grounds for impeachment.

The tragic hostage-taking incident was the result of a confluence of several unfortunate events
including system failure of government response. It cannot be solely attributed then to what
petitioner Gonzales may have negligently failed to do for the quick, fair and complete resolution of
the case, or to his error of judgment in the disposition thereof. Neither should petitioner's official acts
in the resolution of P/S Insp. Mendoza's case be judged based upon the resulting deaths at the
Quirino Grandstand. The failure to immediately act upon a party's requests for an early resolution of
his case is not, by itself, gross neglect of duty amounting to betrayal of public trust. Records show
that petitioner took considerably less time to act upon the draft resolution after the same was
submitted for his appropriate action compared to the length of time that said draft remained pending
and unacted upon in the Office of Ombudsman Merceditas N. Gutierrez. He reviewed and denied
P/S Insp. Mendoza's motion for reconsideration within nine (9) calendar days reckoned from the time
the draft resolution was submitted to him on April 27, 2010 until he forwarded his recommendation to
the Office of Ombudsman Gutierrez on May 6, 2010 for the latter's final action. Clearly, the release
of any final order on the case was no longer in his hands.

Even if there was inordinate delay in the resolution of P/S Insp. Mendoza's motion and an
unexplained failure on petitioner's part to supervise his subordinates in its prompt disposition, the
same cannot be considered a vicious and malevolent act warranting his removal for betrayal of
public trust. More so because the neglect imputed upon petitioner appears to be an isolated case.

Similarly, petitioner's act of directing the PNP-IAS to endorse P/S Insp. Mendoza's case to the
Ombudsman without citing any reason therefor cannot, by itself, be considered a manifestation of his
undue interest in the case that would amount to wrongful or unlawful conduct. After all, taking
cognizance of cases upon the request of concerned agencies or private parties is part and parcel of
the constitutional mandate of the Office of the Ombudsman to be the "champion of the people." The
factual circumstances that the case was turned over to the Office of the Ombudsman upon
petitioner's request; that administrative liability was pronounced against P/S Insp. Mendoza even
without the private complainant verifying the truth of his statements; that the decision was
immediately implemented; or that the motion for reconsideration thereof remained pending for more
than nine months cannot be simply taken as evidence of petitioner's undue interest in the case
considering the lack of evidence of any personal grudge, social ties or business affiliation with any of
the parties to the case that could have impelled him to act as he did. There was likewise no evidence
at all of any bribery that took place, or of any corrupt intention or questionable motivation.

Accordingly, the OP's pronouncement of administrative accountability against petitioner and the
imposition upon him of the corresponding penalty of dismissal must be reversed and set aside, as
the findings of neglect of duty or misconduct in office do not amount to a betrayal of public trust.
Hence, the President, while he may be vested with authority, cannot order the removal of petitioner
as Deputy Ombudsman, there being no intentional wrongdoing of the grave and serious kind
amounting to a betrayal of public trust.

This is not to say, however, that petitioner is relieved of all liability for his acts showing less than
diligent performance of official duties. Although the administrative acts imputed to petitioner fall short
of the constitutional standard of betrayal of public trust, considering the OP's factual findings of
negligence and misconduct against petitioner, the Court deems it appropriate to refer the case to the
Office of the Ombudsman for further investigation of the charges in OP Case No. 10-J-460 and the
imposition of the corresponding administrative sanctions, if any.
Inasmuch as there is as yet no existing ground justifying his removal from office, petitioner is entitled
to reinstatement to his former position as Deputy Ombudsman and to the payment of backwages
and benefits corresponding to the period of his suspension.

The Office of the President is vested

with statutory authority to proceed
administratively against petitioner
Barreras-Sulit to determine the
existence of any of the grounds for
her removal from office as provided
for under the Constitution and the
Ombudsman Act.

Petitioner Barreras-Sulit, on the other hand, has been resisting the President's authority to remove
her from office upon the averment that without the Sandiganbayan's final approval and judgment on
the basis of the PLEBARA, it would be premature to charge her with acts and/or omissions
"tantamount to culpable violations of the Constitution and betrayal of public trust," which are grounds
for removal from office under Section 8, paragraph (2) of the Ombudsman Act of 1989; and which
also constitute a violation of Section 3, paragraph (e) of Republic Act No. 3019 (Anti-Graft and
Corrupt Practices Act) - causing undue injury to the Government or giving any private party any
unwarranted benefits, advantage or preference through manifest partiality, evident bad faith or gross
inexcusable negligence. With reference to the doctrine of prejudicial procedural antecedent,
petitioner Barreras-Sulit asserts that the propriety of taking and continuing to take administrative
disciplinary proceeding against her must depend on the final disposition by the Sandiganbayan of
the PLEBARA, explaining that if the Sandiganbayan would uphold the PLEBARA, there would no
longer be any cause of complaint against her; if not, then the situation becomes ripe for the
determination of her failings.

The argument will not hold water. The incidents that have taken place subsequent to the submission
in court of the PLEBARA shows that the PLEBARA has been practically approved, and that the only
thing which remains to be done by the Sandiganbayan is to promulgate a judgment imposing the
proper sentence on the accused Major General Garcia based on his new pleas to lesser offenses.
On May 4, 2010, the Sandiganbayan issued a resolution declaring that the change of plea under the
PLEBARA was warranted and that it complied with jurisprudential guidelines. The Sandiganbayan,
thereafter, directed the accused Major General Garcia to immediately convey in favor of the State all
the properties, both real and personal, enumerated therein. On August 11, 2010, the Sandiganbayan
issued a resolution, which, in order to put into effect the reversion of Major General Garcia's ill-gotten
properties, ordered the corresponding government agencies to cause the transfer of ownership of
said properties to the Republic of the Philippines. In the meantime, the Office of the Special
Prosecutor (OSP) informed the Sandiganbayan that an Order had been issued by the Regional Trial
70 

Court of Manila, Branch 21 on November 5, 2010 allowing the transfer of the accused's frozen
accounts to the Republic of the Philippines pursuant to the terms of the PLEBARA as approved by
the Sandiganbayan. Immediately after the OSP informed the Sandiganbayan that its May 4, 2010
Resolution had been substantially complied with, Major General Garcia manifested to the71 

Sandiganbayan on November 19, 2010 his readiness for sentencing and for the withdrawal of the
criminal information against his wife and two sons. Major General Garcia's Motion to Dismiss, dated
72 

December 16, 2010 and filed with the Sandiganbayan, reads:

1.0 The Co-Accused were impleaded under the theory of conspiracy with the Principal Accused
MGen. Carlos F. Garcia (AFP Ret.), (Principal Accused) with the allegation that the act of one is the
act of the others. Therefore, with the approval by the Honorable Court of the Plea Bargaining
Agreement executed by the Principal Accused, the charges against the Co-Accused should likewise
be dismissed since the charges against them are anchored on the same charges against the
Principal Accused.

On December 16, 2010, the Sandiganbayan allowed accused Major General Garcia to plead guilty
to the lesser offenses of direct bribery and violation of Section 4(b), R.A. No. 9160, as amended.
Upon Major General Garcia's motion, and with the express conformity of the OSP, the
Sandiganbayan allowed him to post bail in both cases, each at a measly amount of ₱ 30,000.00.

The approval or disapproval of the PLEBARA by the Sandiganbayan is of no consequence to an

administrative finding of liability against petitioner Barreras-Sulit. While the court's determination of
the propriety of a plea bargain is on the basis of the existing prosecution evidence on record, the
disciplinary authority's determination of the prosecutor's administrative liability is based on whether
the plea bargain is consistent with the conscientious consideration of the government's best interest
and the diligent and efficient performance by the prosecution of its public duty to prosecute crimes
against the State. Consequently, the disciplining authority's finding of ineptitude, neglect or
willfulness on the part of the prosecution, more particularly petitioner Special Prosecutor Barreras-
Sulit, in failing to pursue or build a strong case for the government or, in this case, entering into an
agreement which the government finds "grossly disadvantageous," could result in administrative
liability, notwithstanding court approval of the plea bargaining agreement entered into.

Plea bargaining is a process in criminal cases whereby the accused and the prosecution work out a
mutually satisfactory disposition of the case subject to court approval. The essence of a plea
73 

bargaining agreement is the allowance of an accused to plead guilty to a lesser offense than that
charged against him. Section 2, Rule 116 of the Revised Rules of Criminal Procedure provides the
procedure therefor, to wit:

SEC. 2. Plea of guilty to a lesser offense. -- At arraignment, the accused, with the consent of the
offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser
offense which is necessarily included in the offense charged. After arraignment but before trial, the
accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not
guilty. No amendment of the complaint or information is necessary. (Sec. 4, Cir. 38-98)

Plea bargaining is allowable when the prosecution does not have sufficient evidence to establish the
guilt of the accused of the crime charged. However, if the basis for the allowance of a plea bargain
74 

in this case is the evidence on record, then it is significant to state that in its earlier
Resolution promulgated on January 7, 2010, the Sandiganbayan had evaluated the testimonies of
75 

twenty (20) prosecution witnesses and declared that "the conglomeration of evidence presented by
the prosecution is viewed by the Court to be of strong character that militates against the grant of
bail."

Notwithstanding this earlier ruling by the Sandiganbayan, the OSP, unexplainably, chose to plea
bargain with the accused Major General Garcia as if its evidence were suddenly insufficient to
secure a conviction. At this juncture, it is not amiss to emphasize that the "standard of strong
evidence of guilt which is sufficient to deny bail to an accused is markedly higher than the standard
of judicial probable cause which is sufficient to initiate a criminal case." Hence, in light of the
76 

apparently strong case against accused Major General Garcia, the disciplining authority would be
hard-pressed not to look into the whys and wherefores of the prosecution's turnabout in the case.

The Court need not touch further upon the substantial matters that are the subject of the pending
administrative proceeding against petitioner Barreras-Sulit and are, thus, better left to the complete
and effective resolution of the administrative case before the Office of the President.
The challenge to the constitutionality of Section 8(2) of the Ombudsman Act has, nonetheless, failed
to obtain the necessary votes to invalidate the law, thus, keeping said provision part of the law of the
land. To recall, these cases involve two distinct issues: (a) the constitutionality of Section 8(2) of the
Ombudsman Act; and (b) the validity of the administrative action of removal taken against petitioner
Gonzales. While the Court voted unanimously to reverse the decision of the OP removing petitioner
Gonzales from office, it was equally divided in its opinion on the constitutionality of the assailed
statutory provision in its two deliberations held on April 17, 2012 and September 4, 2012. There
being no majority vote to invalidate the law, the Court, therefore, dismisses the challenge to the
constitutionality of Section 8(2) of the Ombudsman Act in accordance with Section 2(d), Rule 12 of
the Internal Rules of the Court.

Indeed, Section 4(2), Article VIII of the 1987 Constitution requires the vote of the majority of the
Members of the Court actually taking part in the deliberation to sustain any challenge to the
constitutionality or validity of a statute or any of its provisions.

WHEREFORE, in G.R. No. 196231, the decision of the Office of the President in OP Case No. 10-J-
460 is REVERSED and SET ASIDE. Petitioner Emilio A. Gonzales III is ordered REINSTATED with
payment of backwages corresponding to the period of suspension effective immediately, even as the
Office of the Ombudsman is directed to proceed with the investigation in connection with the above
case against petitioner. In G.R. No. 196232, We AFFIRM the continuation of OP-DC Case No. 11-B-
003 against Special Prosecutor Wendell Barreras-Sulit for alleged acts and omissions tantamount to
culpable violation of the Constitution and a betrayal of public trust, in accordance with Section 8(2) of
the Ombudsman Act of 1989.

The challenge to the constitutionality of Section 8(2) of the Ombudsman Act is hereby DENIED.

SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION

Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO ROBERTO A. ABAD

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

Associate Justice Associate Justice
 JOSE CATRAL MENDOZA BIENVENIDO L. REYES
Associate Justice Associate Justice

CERTIFICATION

I certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court.

Ma. LOURDES P. A. SERENO

Chief Justice

Footnotes

Annex "A," rollo ( G.R. No. 196231), pp. 72-86.

1 

Annex "A," rollo (G.R. No. 196232), p. 26.

2 

Annex "C," id. at 33.

3 

Val Rodriguez, Grandstand Carnage, The Philippine Star, August 24, 2010
4 

<http://www.philstar.com/Article.aspx?articleId=605631&publicationSubCategoryId=63>
(visited January 5, 2011).

Charge Sheet, rollo (G.R. No. 196231), p. 87.

5 

Id. at 231.
6 

Resolution dated August 26, 2008, id. at 233-235.

7 

Id. at 128.
8 

Id. at 153-158.
9 

10 
Id. at 203-216.

11 
Annex "F," id. at 132-136.

12 
Annex "N," id. at 244-249.

13 
The President issued Joint Department Order No. 01-2010 creating the IIRC.

14 
As quoted in the Petition in G.R. No. 196231, rollo, pp. 17-20.

15 
Annex "Q," id. at 322.
16 
R. A. No. 3019.

17 
Rollo (G.R. No. 196231), pp. 324-346.

18 
R.A. No. 6713.

19 
Annex "W," rollo (G.R. No. 196231), pp. 386-408.

20 
Annex "S," id. at 377.

21 
Petition, id. at 8.

22 
Annex "V," id. at 380-383.

23 
Annex "A," id. at 72-86.

24 
Annex "B," rollo (G.R. No. 196232), pp. 27-30.

25 
Petition, rollo (G.R. No. 196231), pp. 23-24.

26 
Petition, rollo (G.R. No. 196232), p. 10.

27 
Ledesma v. Court of Appeals, 503 Phil. 396 (2005).

Office of the Ombudsman v. Masing and Tayactac, G.R. No. 165416, January 22, 2008,
28 

542 SCRA 253.

29 
De Leon, 2 Philippine Constitutional Law Principles and Cases, 855 (2004).

30 
Bernas, S.J., The Intent of the 1986 Constitution Writers, 771 (1995).

31 
Id. at 143-144.

Office of the Ombudsman v. Delijero, Jr., G.R. No. 172635, October 20, 2010, 634 SCRA
32 

135.

Malaria Employees and Workers Association of the Philippines, Inc. (MEWAP) v. Executive
33 

Secretary Romulo, G.R. No. 160093, July 31, 2007, 528 SCRA 673, 682.

Philippine International Trading Corporation v. Commission on Audit, G.R. No. 183517,

34 

June 22, 2010, 621 SCRA 461, citing Land Bank of the Philippines v. AMS Farming
Corporation, 569 SCRA 154, 183 (2008) and Mactan-Cebu International Airport Authority v.
Urgello, 520 SCRA 515, 535 (2007).

35 
See Comment of the Office of the Solicitor General, rollo (G.R. No. 196231), pp. 709-710.

36 
321 Phil. 604 (1995).

37 
Id. at 613-614
38 
Id.

39 
Supra note 31.

40 
Section 23. Formal Investigation.-

xxxx

(2) At its option, the Office of the Ombudsman may refer certain complaints to the
proper disciplinary authority for the institution of appropriate administrative
proceedings against erring public officers or employees, which shall be determined
within the period prescribed in the civil service law. x x x

41 
Supra note 31, at 146.

42 
Montemayor v. Bundalian, G.R. No. 149335, July 1, 2003, 405 SCRA 264.

43 
Id.

Sec.2. The President, the Vice-President, the Members of the Supreme Court, the
44 

Members of the Constitutional Commissions, and the Ombudsman may be removed from
office, on impeachment for, and conviction of, culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public
officers and employees may be removed from office as provided by law, but not by
impeachment.

As quoted in Office of the Ombudsman v. Court of Appeals, G.R. No. 146486, 493 Phil. 63,
45 

77-80 (2005).

46 
Records of the 1986 Constitutional Commission, Vol. II, July 26, 1986, pp. 273-274.

47 
Records of the 1986 Constitutional Commission, Vol. II, July 26, 1986, p. 305.

48 
Aguirre, Jr. v. De Castro, 378 Phil. 714 (1999).

49 
Cruz, Carlo L., The Law of Public Officers, 154-155 (1992).

Sec. 13, Article XI; De Leon, Hector, 2 Philippine Constitutional Law, 860 (2004), citing
50 

Concerned Officials of the MWSS v. Velasquez, 310 Phil. 549 (1995) and Garcia-Rueda v.
Pascasio, 344 Phil. 323 (1997).

51 
Bernas, S.J., The Intent of the 1986 Constitution Writers, 773-774 (1995).

De Leon, 2 Philippine Constitutional Law Principles and Cases, 857 (2004), citing Del. R.D.
52 

ROBLES, The Ombudsman, in C.R. Montejo, On the 1973 Constitution, 232.

53 
Id. at 859-860.

54 
397 Phil. 829, 831 (2000), cited in Angeles v. Desierto, 532 Phil. 647, 656 (2006).
55 
Cayago v. Lina, 489 Phil. 735 (2005).

56 
Libres v. NLRC, 367 Phil. 180 (1999).

57 
Concerned Officials of MWSS v. Vasquez, 310 Phil. 549 (1995).

AMA Computer College-East Rizal v. Ignacio, G.R. No. 178520, June 23, 2009, 590 SCRA
58 

633, 654 citing Casimiro v. Tandog, 498 Phil. 660, 666 (2005).

59 
OP Decision, p. 7, rollo (G.R. No. 196231), p. 78.

Funa, Dennis B., The Law on the Administrative Accountability of Public Officers, 509
60 

(2010), citing Office of the Court Administrator v. Bucoy, A.M. No. P-93-953, August 25,
1994, 235 SCRA 588; Tolentino v. CA, 234 Phil. 28 (1987), Biak na Bato Mining Co. v.
Tanco, 271 Phil. 339 (1991).

Rules of Court, Rule 133, Sec.5; Nicolas v. Desierto, 488 Phil. 158 (2004); Ang Tibay v.
61 

Court of Industrial Relations, 69 Phil 635 (1940).

62 
Supra note 60, at 511.

63 
Dadubo v. CSC, G.R. No. 106498, June 28, 1993, 223 SCRA 747.

Assistant Executive Secretary for Legal Affairs of the Office of the President v. Court of
64 

Appeals, 251 Phil. 26 (1989), citing Lovina v. Moreno, 118 Phil. 1401 (1963).

65 
Joaquin G. Bernas, The 1987 Constitution of the Philippines: A Commentary, 992 (1996).

66 
Records of the 1986 Constitutional Commission, Vol. II, p. 286.

67 
Supra note at 65.

68 
Records of the 1986 Constitutional Commission, Vol. II, pp. 283-284.

69 
Id. at 286.

70 
Annex "2" of the Supplemental Comment on the Petition, rollo (G.R. No. 196232), p. 212.

71 
Annex "1," id. at 210-211

72 
Annex "3," id. at 213-215.

Daan v. Sandiganbayan, G.R. Nos. 163972-77, March 28, 2008, 550 SCRA 233, citing
73 

People v. Villarama, Jr., 210 SCRA 246, 251-252 (1992).

People v. Villarama, Jr., G.R. No. 99287, June 23, 1992, 210 SCRA 246; People v.
74 

Parohinog, 185 Phil. 266 (1980); People v. Kayanan, 172 Phil. 728 (1978).

Annex "7" of the Supplemental Comment on the Petition, rollo (G.R. No. 196232), pp. 225-
75 

268.
 Leviste v. Alameda, G.R. No. 182677, August 3, 2010, 626 SCRA 575, 608; Cabrera v.
76 

Marcelo, 487 Phil. 427 (2004).

The Lawphil Project - Arellano Law Foundation

CONCURRING OPINION

CARPIO, J.:

Our Constitution does not impart a fixed and rigid concept of independence among the offices that it
creates. While it declares certain bodies as "'independent", we cannot assume that the
independence of the Ombudsman1 is the same as the independence of the Judiciary. Neither is the
independence of the Constitutional Commissions the same as that of the National Economic and
Development Authority, the Bangko Sentral ng Pilipinas or the Commission on Human Rights 2. This
Court cannot make a "one size fits all" concept of independence because the Constitution itself
differentiates the degree of independence of these bodies.

In this case, the petitions seek to strike down Section 8(2) of Republic Act No. 6170 or the
Ombudsman Act of 1989 which delegates to the President the power to remove a Deputy
Ombudsman or the Special Prosecutor "for any of the grounds provided for the removal of the
Ombudsman, and after due process." The provision allegedly compromises the independence of the
Ombudsman by imposing an external disciplinary authority, namely the President.

I agree with the ponencia that Section 8(2) of the Ombudsman Act does not violate the Constitution.
The constitutional principle of independence does not obviate the possibility of a check from another
body. After all, one of the constitutive principles of our constitutional structure is the system of
checks and balances- a check that is not within a body, but outside of it. This is how our democracy
operates - on the basis of distrust.3

I.

Section 2, Article XI of the 1987 Constitution prescribes how all public officers and employees, both
impeachable and non-impeachable, may be removed. Section 2 provides:

The President, the Vice-President, the Members of the Supreme Court, the Members of the
Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment
for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption,
other high crimes, or betrayal of public trust. All other public officers and employees may be
removed from office as provided by law, but not by impeachment. (Boldfacing and underscoring
supplied)

Section 2 of Article XI consists of two parts. The first sentence identifies the public officials who are
subject to removal only by impeachment. The second sentence explicitly leaves to the discretion of
Congress, through an implementing law, the removal of all other public officers and employees. In
other words, by stating that all other non- impeachable officers and employees "may be removed
from office as provided by law" - the Constitution expressly grants to Congress the power to
determine the manner and cause of removal, including who will be the disciplinary authority, of non-
impeachable officers and employees. Clearly, Section 8(2) of the Ombudsman Act is valid and
constitutional since Congress is expressly empowered to legislate such law pursuant to Section 2,
Article XI of the Constitution.

The original text of Section 24 of Article XI did not include the second sentence. 5 Its subsequent
inclusion was only meant to exclude "all other public officers and employees" from removal through
impeachment. Otherwise, Congress would have the plenary power to remove public officers and
employees through impeachment or through any other mode of removal. Thus, at the outset, the
framers of the 1987 Constitution saw no need to textualize this power- for it was already taken for
granted as part of the plenary power of Congress. However, to limit this plenary power of Congress,
the framers expressly excluded impeachment as a mode of removing "all other public officers and
employees."

This Court has repeatedly declared that the Constitution "confers plenary legislative x x x powers
subject only to limitations provided in the Constitution." 6 Thus, in inserting the second sentence in
Section 8(2), Article XI of the 1987 Constitution, the framers intended to limit impeachment only to
public officers enumerated in the first sentence of Section 2:

MR. REGALADO. I propose to add in Section 2 as a last sentence thereof as already amended the
following: ALL OTHER PUBLIC OFFICERS AND EMPLOYEES MAY BE REMOVED FROM
OFFICE AS PROVIDED BY LAW BUT NOT BY IMPEACHMENT. The reason for the amendment is
this: While Section 2 enumerates the impeachable officers, there is nothing that will prevent the
legislature as it stands now from providing also that other officers not enumerated therein shall also
be removable only by impeachment, and that has already happened.

Under Section 1 of P.D. No. 1606, the Sandiganbayan Decree, justices of the Sandiganbayan may
be removed only by impeachment, unlike their counterparts in the then Court of Appeals. They are,
therefore, a privileged class on the level of the Supreme Court. In the Committee on Constitutional
Commissions and Agencies, there are many commissions which are sought to be constitutionalized
- if I may use the phrase - and the end result would be that if they are constitutional commissions,
the commissioners there could also be removed only by impeachment. What is there to prevent the
Congress later - because of the lack of this sentence that I am seeking to add - from providing that
officials of certain offices, although nonconstitutional, cannot also be removed except by
impeachment?

THE PRESIDING OFFICER (Mr. Treñas). What does the Committee say on the proposed
amendment of Commissioner Regalado?

MR. MONSOD. May we ask Commissioner Regalado a few questions?

Does this mean that with this provision, the other officers in the case of the Sandiganbayan would
not be removable by impeachment?

MR. REGALADO. For the present and during the interim and until the new Congress amends P.D.
No. 1606, that provision still stands. But the proposed amendment will not prevent the legislature
from subsequently repealing or amending that portion of the law. Also, it will prevent the legislature
from providing for favoured public officials as not removable except by impeachment.

MR. MONSOD. Mr. Presiding Officer, the Committee is willing to accept the amendment of
Commissioner Regalado.
THE PRESIDING OFFICER (Mr. Treñas). The proposed amendment of Commissioner Regalado
has been accepted by the Committee.7 (Emphasis supplied)

Clearly, Congress has the power and discretion to delegate to the President the power to remove a
Deputy Ombudsman or the Special Prosecutor under Section 8(2) of the Ombudsman Act. While the
1987 Constitution already empowers the Ombudsman to investigate 8 and to recommend to
remove9 a Deputy Ombudsman and the Special Prosecutor, this does not preclude Congress from
providing other modes of removal.

The Deputy Ombudsman and the Special Prosecutor are not among the impeachable officers under
the 1987 Constitution. Thus, as expressly provided in Section 2, Article XI of the Constitution, they
"may be removed from office as provided by law." Congress, pursuant to this constitutional provision
and in the exercise of its plenary power, enacted the Ombudsman Act, conferring on the President
the power to remove the Deputy Ombudsman and the Special Prosecutor as provided in Section
8(2) of the Ombudsman Act.

However, the Ombudsman Act also grants the Ombudsman the authority to remove a Deputy
Ombudsman and the Special Prosecutor through the general grant of disciplinary authority over all
elective and appointive officials, in reiteration of Sections 13(1) and (2), Article XI of the
Constitution:10

Section 21. Officials Subject to Disciplinary Authority; Exceptions. - The Office of the Ombudsman
shall have disciplinary authority over all elective and appointive officials of the Government and its
subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government,
government-owned or controlled corporations and their subsidiaries, except over officials who may
be removed only by impeachment or over Members of Congress, and the Judiciary. 11

In view of Section 8(2) and Section 21 of the Ombudsman Act, the legislative intent is to grant
concurrent jurisdiction to the President and the Ombudsman in the removal of the Deputy
Ombudsman and the Special Prosecutor. An "endeavor should be made to harmonize the provisions
of a law x x x so that each shall be effective."12 This is not a hollow precept of statutory construction.
This is based not only on democratic principle but also on the separation of powers, that this Court
should not be so casual in voiding the acts of the popularly elected legislature unless there is a clear
violation of the Constitution.

II.

When the 1987 Constitution speaks of "independent" bodies, it does not mean complete insulation
from other offices. The text, history and structure of the Constitution contemplate checks and
balances that result in the expansion, contraction or concurrence of powers, a coordinate functioning
among different bodies of government that is not limited to the executive, legislative and judicial
branches, but includes the "independent" constitutional bodies. The very structure of our government
belies the claim that "independent" bodies necessarily have exclusive authority to discipline its
officers.

Not all constitutional declarations are enforceable by courts.13 We declared some of them as not self-
executing such as the Declaration of Principles and State Policies under Article II. 14 However, the
independence of constitutional bodies is a judicially enforceable norm. Textually, the Constitution
does not define the term "independent" and thus, the contours of this principle may not be
immediately clear. The question therefore arises: to what extent can this Court enforce the
independence of bodies like the Ombudsman? Can we impose a particular notion of independence,
amidst the silence of the constitutional text, to the extent of nullifying an act of Congress?
The answer lies in the Constitution itself which circumscribes the exercise of judicial power. The
Constitution clearly intended different degrees of independence among the "independent" bodies
that it created. For some, such as the National Economic and Development Authority, Bangko
Sentral ng Pilipinas and Commission on Human Rights, the operationalization of independence is
constitutionally committed to the discretion of Congress. 15 For the others, like the Civil Service
Commission, the Commission on Audit and the Commission on Elections, legislative power is
decidedly more limited,16 with express guarantees like fiscal autonomy 17 and rule-making power on
pleadings and practice.18

The Constitution does not enumerate in detail all the possible legislative powers. The Constitution
has vested Congress with plenary powers- as the general repository of the police power of the State-
to fill-in gaps in the Constitution for the governance of this country. However, when the Constitution
expressly empowers Congress to do a specific act - like expressly empowering Congress to provide
the mode of removal of all non-impeachable government officers and employees, there can be no
doubt whatsoever that Congress can enact such a law.

Any reading of the 1987 Constitution does not warrant the conclusion that all bodies declared by the
Constitution as "independent" have exclusive disciplinary authority over all their respective officials
and employees. Unlike the Judiciary where such exclusivity is expressly provided for in the
Constitution,19 there is no reason to read such provision in the Ombudsman where the Constitution is
silent. On the contrary, the constitutional provision that non-impeachable officers and employees
"may be removed from office as provided by law" removes any doubt that Congress can determine
the mode of removal of non-impeachable officers and employees of "independent" bodies other than
the Judiciary. An "independent" body does not have exclusive disciplinary authority over its officials
and employees unless the Constitution expressly so provides, as in the case of the Judiciary.

There are other constitutional bodies declared "independent," 20 but disciplinary authority is statutorily
lodged somewhere else.21 Under the New Central Bank Act (Republic Act No. 7653), the President
also has the power to remove a member of the Monetary Board on specified grounds. 22 There is
nothing anomalous in this mode of removal because the Constitution expressly authorizes the
legislature to provide for such mode of removal. This Court cannot enforce a speculative notion of
independence - that an "independent" body has exclusive disciplinary authority - for doing so would
be a species of judicial legislation or a disguised constitutional amendment.

III.

This Court has no business limiting the plenary power of Congress unless the Constitution expressly
so limits it. The fact that different constitutional bodies are treated differently under the Constitution
shows that independence is a broadly delineated norm. With this level of generality, the
constitutional meaning of independence is only that of independent decision-making that is free from
partisanship and political pressures. It does not even mean fiscal autonomy unless the Constitution
says so.23 Thus, it is generally left to Congress to particularize the meaning of independence, subject
only to specific constitutional limitations. Nothing in the Constitution tells us that an "independent"
body necessarily has exclusive disciplinary authority over its officials and employees.

A completely "independent" body is alien to our constitutional system. There is no office that is
insulated from a possible correction from another office. The executive, legislative and judicial
branches of government operate through the system of checks and balances. All independent
constitutional bodies are subject to review by the courts. A fiscally autonomous body is subject to
audit by the Commission on Audit, and Congress cannot be compelled to appropriate a bigger
budget than that of the previous fiscal year.24
Section 8(2) of the Ombudsman Act is consistent with our system of checks and balances. The
provision is a narrow form of delegation which empowers the President to remove only two officers
in the Office of the Ombudsman, i.e. the Deputy Ombudsman and the Special Prosecutor. The
proposition that an external disciplinary authority compromises the Ombudsman's independence
fails to recognize that the Constitution expressly authorizes Congress to determine the mode of
removal of all non-impeachable officers and employees. It also fails to recognize that under a system
of checks and balances, an external disciplinary authority is desirable and is often the norm.

In disciplinary cases, the 1987 Constitution empowers the Ombudsman to direct the proper
disciplinary authority "to take appropriate action against a public official or employee at fault, and
recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith."25 This is further implemented by the Ombudsman Act which provides that "at
its option, the Office of the Ombudsman may refer certain complaints to the proper disciplinary
authority for the institution of appropriate administrative proceedings against erring public officers or
employees, which shall be determined within the period prescribed in the civil service law." 26

Clearly, the Ombudsman is not constitutionally empowered to act alone. Congress can even
authorize the Department of Justice or the Office of the President to investigate cases within the
jurisdiction of the Ombudsman. Similarly, the Ombudsman can investigate public officers and
employees who are under the disciplinary authority of heads of other bodies or agencies. 27 The
cases cited in the ponencia, i.e. Hagad v. Gozo-Dadofe 28 and Office of the Ombudsman v. Delijero,
Jr.29 - illustrate that concurrent jurisdiction does not impair the independence of the Ombudsman.
Duplication of functions may not at all times promote efficiency, but it is not proscribed by the
Constitution.

Accordingly, I vote to DENY the petition in G.R. No. 196232, and to GRANT in part the petition in
G.R. No. 196231, in accordance with the ponencia of Justice Estela M. Perlas-Bemabe.

ANTONIO T. CARPIO
Associate Justice

Footnotes

1
 CONSTITUTIONS, Art. XI, Sec. 5: There is hereby created the independent Office of the
Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall
Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy
for the military establishment may likewise be appointed.

 There are the bodies that the 1987 Constitution considers as "independent." See
2

CONSTITUTIONS, Art. XI-A, Sec. 1; Art. XII, Secs. 9 and 20: Art. XIII, Sec. 17.

3
 See J. ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (2002).

4
 As amended and consolidated by the Committee on Accountability of Public Officers of the
1986 Constitutional Commission.

5
 II RECORD, CONSTITUTIONAL COMMISSION 263 (26 July 1986).
 Marcos v. Manglapus, 258 Phil. 479, 499 (1989); Vera v. Avelino, G.R. No. L-543, 31
6

August 1946, 77 Phil. 192; Ople v. Torres, G.R. No. 127685, 23 July 1998, 354 Phil. 948.

7
 II RECORD, CONSTITUTIONAL COMMISSION 356-357 (28 July 1986).

8
 CONSTITUTION, Art. XI, Sec. 13(1): Investigate on its own, or on complaint by any person,
any act or omission of any public official, employee, office or agency, when such act or
omission appears to be illegal, unjust, improper, or inefficient.

9
 CONSTITUTION, Art. XI, Sec. 13(3): Direct the officer concerned to take appropriate action
against a public official or employee at fault, and recommend his removal, suspension,
demotion, fine, censure, or prosecution, and ensure compliance therewith. (Emphasis
supplied)10  See notes 8 and 9.

11
 R.A. No. 6770, Sec. 21.

 Valera v. Tuason, Jr., 80 Phil. 823, 827 (1948). See also Mactan-Cebu International Airport
12

Authority v. Urgello, G.R. No. 162288, 4 April 2007, 520 SCRA 515, 535, citing Civil Service
Commission v. Joson, Jr., G.R. No. 154674, 27 May 2004, 429 SCRA 773, 786.

13
 Tañada v. Angara, 338 Phil. 546 (1997); Manila Prince Hotel v. Government Service
Insurance System, 335 Phil. 82 (1997); Kilosbayan, Inc. v. Morato, 316 Phil. 652 (1995).

14
 Id.

15
 CONSTITUTION, Art. XII, Secs. 9 and 20; Art. XIII, Sec. 17.

 See CONSTITUTION, Art. IX-A, Sec. 3 (the salaries of the Chairman and the
16

Commissioners are fixed by law but shall not be decreased during their tenure), Sec. 4
(appointment of other officials and employees in accordance with law) and Sec. 8 (the
constitutional commissions may perform other functions as may be provided by law).

17
 CONSTITUTION, Art. IX-A, Sec. 5.

18
 CONSTITUTION, Art. IX-A, Sec. 6.

19
 CONSTITUTION, Art. VIII, Sec. 6 ("The Supreme Court shall have administrative
supervision over all courts and the personnel thereof.") and Sec. 11 ("x x x The Supreme
Court en banc shall have the power to discipline judges of lower courts, or order their
dismissal by a vote of majority of the Members who actually took part in the deliberations on
the issues in the case and voted thereon.").

20
 Supra, note 2.

21
 Id.

 R.A. No. 7653, Sec. 10. Removal. - The President may remove any member of the
22

Monetary Board for any of the following reasons:

(a) If the member is subsequently disqualified under the provisions of Section 8 of

this Act; or
 (b) If he is physically or mentally incapacitated that he cannot properly discharge his
duties and responsibilities and such incapacity has lasted for more than six (6)
months; or

(c) If the member is guilty of acts or operations which are of fraudulent or illegal
character or which are manifestly opposed to the aims and interests of the Bangko
Sentral; or

(d) If the member no longer possesses the qualifications specified in Section 8 of this
Act.

See also III RECORDS, CONSTITUTIONAL COMMISSION 611 (22 August 1986):

THE PRESIDENT. Commissioner Rodrigo is recognized.

MR. RODRIGO. Madam President, may I ask a question for clarification? The
section says, "The Congress shall establish an independent central monetary
authority." My question has reference to the word "independent." How is
independence of this authority supported by the Constitution?

In the case of the judiciary, the Members are independent because they have a fixed
term and they may not be removed except by impeachment or some very difficult
process. This applies to the different constitutional commissions. But in the case of
this central monetary authority which we call "independent", how is this
independence maintained?

MR. VILLEGAS. The thinking is: Congress, in establishing that independent central
monetary authority, should provide a fixed term. Actually that was contained in the
original Davide amendment but we thought of leaving it up to Congress to determine
that term- a fixed term of probably five years or seven years serving in the monetary
board.

MR. RODRIGO. Does this include that they may not be removed except by
impeachment by the Congress?

MR. VILLEGAS. Exactly.

MR. RODRIGO. Just like the members of the other constitutional commissions?

MR. VILLEGAS. Yes. That is why we say that they shall be subject to the same
disabilities or disqualifications as the members of the constitutional commissions.

MR. RODRIGO. Are we leaving that to Congress?

MR. VILLEGAS. That is right.

MR. RODRIGO: Thank you.

 Commission on Human Rights Employees' Association v. Commission on Human Rights,

23

G.R. No. 155336, 21 July 2006, 496 SCRA 226.

 24
 See CONSTITUTION, Art. VIII, Sec. 3; Art. IX-A, Sec. 5; Art. XI, Sec. 14.

25
 CONSTITUTION, Art. XI, Sec. 13, par. (3). Emphasis supplied.

26
 R.A. No. 6770, Sec. 23(2).

 The Administrative Code of 1987 (Executive Order No. 292) provides that the heads of
27

agencies are generally empowered to investigate and decide matters involving disciplinary
actions against officers and employees under their jurisdiction. ADMINISTRATIVE CODE,
BOOK V, Title I, Subtitle A, Chapter 7, Secs. 47, par. (2) and 48, par. (1).

28
 G.R. No. 108072, 12 December 1995, 251 SCRA 242.

29
 G.R. No. 172635, 20 October 2010, 634 SCRA 135.

The Lawphil Project - Arellano Law Foundation

CONCURRING AND DISSENTING OPINION

BRION, J.:

The present case consists of two consolidated petitions, G.R. No. 196231 and G.R. No. 196232.

I concur with the ponencia's main conclusion that petitioner Emilio Gonzales III (in G.R. No. 196231,
referred to as Gonzales or petitioner Gonzales) is not guilty of the charges leveled against him. But
with due respect, I disagree with the conclusion that Section 8(2) of Republic Act (RA) No.
6770 (which empowers the President to remove a Deputy Ombudsman or a Special
Prosecutor) is constitutionally valid.

The petition of Wendell Barreras-Sulit (G.R. No. 196232, referred to as Sulit or petitioner Sulit)
commonly shares with G.R. No. 196231 the issue of the constitutionality discussed below, the
administrative proceedings against Sulit should be halted and nullified as she prays for in her
petition.

G.R. No. 196231 is a petition questioning the validity of the administrative proceedings conducted by
the Office of the President against Gonzales who was the Deputy Ombudsman for Military and Other
Law Enforcement Offices.

The action against him before the Office of the President consists of an administrative charge for
Gross Neglect of Duty and/or Inefficiency in the Performance of Official Duty (under Section 22, Rule
XIV of the Omnibus Rules Implementing Book V of Executive Order No. 292 and other pertinent Civil
Service laws, rules and regulations), and of Misconduct in Office (under Section 3 of the Anti-Graft
and Corrupt Practices Act [RA No. 3019). 1 The administrative case against Gonzales was
recommended by the Incident Investigation and Review Committee (IIRC) in connection with the
hijacking of a tourist bus resulting in the death of the hijacker and of some passengers; the hijacker
then accused Gonzales of illegal exactions and of delaying the disposition of his Ombudsman case.
On March 31, 2011, the Office of the President found 2 Gonzales guilty of Gross Neglect of Duty and
Grave Misconduct constituting betrayal of public trust, and penalized him with dismissal from office.

In G.R. No. 196232, petitioner Sulit, a Special Prosecutor in the Office of the Ombudsman, seeks to
halt and nullify the ongoing administrative proceedings conducted by the Office of the President
against her. Sulit was charged with violating Section 3(e) of RA No. 3019 and for having committed
acts and/or omissions tantamount to culpable violations of the Constitution, and betrayal of public
trust.

In behalf of the Office of the Ombudsman, Sulit entered into a plea bargain with Major General
Carlos F. Garcia who had been charged with Plunder and Money Laundering. Because of the plea
bargain, Sulit was required to show cause why an administrative case should not be filed against
her. She raised in her Written Explanation of March 24, 2011 the impermissibility and impropriety of
administrative disciplinary proceedings against her because the Office of the President has no
jurisdiction to discipline and penalize her.3

The two petitions - G.R. No. 196231 and G.R. No. 196232 - share a common issue: whether the
President has the power to discipline or remove a Deputy Ombudsman or a Special Prosecutor in
the Office of the Ombudsman from office. While the ponencia resolves this issue in favor of the
President, it is my considered view that the power to discipline or remove an official of the
Office of the Ombudsman should be lodged only with the Ombudsman and not with the
Office of the President, in light of the independence the Constitution guarantees the Office of
the Ombudsman.

The Office of the Ombudsman is a very powerful government constitutional agency tasked to
enforce the accountability of public officers. Section 21 of The Ombudsman Act of 1989 (RA No.
6770) concretizes this constitutional mandate by providing that:

Section 21. Official Subject to Disciplinary Authority; Exceptions. - The Office of the Ombudsman
shall have disciplinary authority over all elective and appointive officials of the Government and its
subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government,
government-owned or controlled corporations and their subsidiaries, except over officials who may
be removed only by impeachment or over Members of Congress, and the Judiciary. (Emphasis ours)

The Ombudsman's duty to protect the people from unjust, illegal and inefficient acts of all public
officials emanates from Section 12, Article XI of the Constitution. These broad powers include all
acts of malfeasance, misfeasance, and nonfeasance of all public officials, including Members of the
Cabinet and key Executive officers, during their tenure.

To support these broad powers, the Constitution saw it fit to insulate the Office of the Ombudsman
from the pressures and influence of officialdom and partisan politics 4 and from fear of external
reprisal by making it an "independent" office. Section 5, Article XI of the Constitution expressed this
intent, as follows:

Section 5. There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for
Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be
appointed. (Emphasis ours)

It is in this light that the general authority of the Office of the President to discipline all officials and
employees the President has the authority to appoint, 5 should be considered.
In more concrete terms, subjecting the officials of the Office of the Ombudsman to discipline and
removal by the President, whose own alter egos and officials in the Executive Department are
subject to the Ombudsman's disciplinary authority, cannot but seriously place at risk the
independence of the Ombudsman and her officials, and must consequently run counter to the
independence that the Constitution guarantees the Office of the Ombudsman. What is true for the
Ombudsman must be equally true, not only for her Deputies but for other lesser officials of that
Office who act as delegates and agents of the Ombudsman in the performance of her duties. The
Ombudsman can hardly be expected to place her complete trust in subordinate officials who are not
as independent as she is, if only because they are subject to pressures and controls external to her
Office. This need for complete trust is true in an ideal setting and truer still in a young democracy like
the Philippines where graft and corruption is still a major problem for the government. For these
reasons, Section 8(2) of RA No. 6770 6 (providing that the President may remove a Deputy
Ombudsman) clearly runs against the constitutional intent and should, thus, be declared void.

Significantly, the possible unconstitutional effects of Section 8(2) of RA No. 6770 were not unknown
to the framers of this law. These possibilities were brought by then Senator Teofisto Guingona to the
framers' attention as early as the congressional deliberations:

Reacting thereto, Senator Guingona observed that this might impair the independence of the
Tanodbayan and suggested that the procedural removal of the Deputy Tanodbayan xxx be not by
the President but by the Ombudsman.

xxxx

Senator Guingona contended, however, that the Constitution provides for an independent Office of
the Tanodbayan, and to allow the Executive to have disciplinary powers over the Tanodbayan
Deputies would be an encroachment on the independence of the Tanodbayan. 7

Despite Senator Guingona's objections, Congress passed RA No. 6770 and the objected Section
8(2) into law.8 While it may be claimed that the congressional intent is clear after the Guingona
objection was considered and rejected by Congress, such clarity and the overriding congressional
action are not enough to insulate the assailed provision from constitutional infirmity if one, in fact,
exists. This is particularly true if the infirmity relates to a core constitutional principle - the
independence of the Ombudsman - that belongs to the same classification as the constitutionally-
guaranteed independence that the Judiciary enjoys. To be sure, neither the Executive nor the
Legislative can create the power that Section 8(2) grants where the Constitution confers
none.9 When exercised authority is drawn from a vacuum, more so when the authority runs counter
to constitutional intents, this Court is obligated to intervene under the powers and duties granted and
imposed on it by Article VIII of the Constitution.10 The alternative for the Court is to be remiss in the
performance of its own constitutional duties.

More compelling and more persuasive than the reason expressed in the congressional deliberations
in discerning constitutional intent should be the deliberations of the Constitutional Commission itself
on the independence of the Ombudsman. Commissioner Florenz Regalado of the Constitutional
Commission openly expressed his concerns on the matter, fearing that any form of presidential
control over the Office of the Ombudsman would diminish its independence:

In other words, Madam President, what actually spawned or caused the failure of the justices of the
Tanodbayan insofar as monitoring and fiscalizing the government offices are concerned was due to
two reasons: First, almost all their time was taken up by criminal cases; and second, since they were
under the Office of the President, their funds came from that office. I have a sneaking suspicion that
they were prevented from making administrative monitoring because of the sensitivity of the then
head of that office, because if the Tanodbayan would make the corresponding reports about failures,
malfunctions or omissions of the different ministries, then that would reflect upon the President who
wanted to claim the alleged confidence of the people.

xxxx

It is said here that the Tanodbayan or the Ombudsman would be a toothless or a paper tiger. That is
not necessarily so. If he is toothless, then let us give him a little more teeth by making him
independent of the Office of the President because it is now a constitutional creation, so that the
insidious tentacles of politics, as has always been our problem, even with PARGO, PCAPE and so
forth, will not deprive him of the opportunity to render service to Juan de la Cruz. x x x. There is
supposed to be created a constitutional office- constitutionalized to free it from those tentacles of
politics- and we give it more teeth and have the corresponding legislative provisions for its budget,
not a budget under the Office of the President.

xxxx

x x x. For that reason, Madam President, I support this committee report on a constitutionally created
Ombudsman and I further ask that to avoid having a toothless tiger, there should be further
provisions for statistical and logistical support. 11 (Emphases ours.)

The intention of the Constitutional Commission to keep the Office of the Ombudsman independent
from the President could not have been made any clearer than when Commissioner Christian
Monsod vehemently rejected the recommendation of Commissioner Blas Ople who had suggested
to the Committee that the Office of the Ombudsman be placed under the Executive:

MR. OPLE. x x x

May I direct a question to the Committee? xxx Will the Committee consider later an amendment xxx,
by way of designating the office of the Ombudsman as a constitutional arm for good government,
efficiency of the public service and the integrity of the President of the Philippines, instead of
creating another agency in a kind of administrative limbo which would be accountable to no one on
the pretext that it is a constitutional body?

MR. MONSOD. The Committee discussed that during our committee deliberations and when we
prepared the report, it was the opinion of the Committee- and I believe it still is- that it may not
contribute to the effectiveness of this office of the Ombudsman precisely because many of the
culprits in inefficiency, injustice and impropriety are in the executive department. Therefore, as we
saw the wrong implementation of the Tanodbayan which was under the tremendous influence of the
President, it was an ineffectual body and was reduced to the function of a special fiscal.

The whole purpose of the our proposal is precisely to separate those functions and to produce a
vehicle that will give true meaning to the concept of Ombudsman. Therefore, we regret that we
cannot accept the proposition. 12

The statements made by Commissioner Monsod emphasized a very logical principle: the Executive
power to remove and discipline members of the Office of the Ombudsman, or to exercise any power
over them, would result in an absurd situation wherein the Office of the Ombudsman is given the
duty to adjudicate on the integrity and competence of the very persons who can remove or suspend
its members. Equally relevant is the impression that would be given to the public if the rule were
otherwise. A complainant with a grievance against a high-ranking official of the Executive, who
appears to enjoy the President's favor, would be discouraged from approaching the Ombudsman
with his complaint; the complainant's impression (even if misplaced), that the Ombudsman would be
susceptible to political pressure, cannot be avoided. To be sure, such an impression would erode the
constitutional intent of creating an Office of the Ombudsman as champion of the people against
corruption and bureaucracy.

These views, to my mind, demolish the concern raised in Congress to justify Section 8(2) of RA No.
6770- i.e., that vesting the authority to remove the Tanodbayan on the Ombudsman would result in
mutual protection.13 This congressional concern, too, is a needless one as it is inconsistent with the
system of checks and balance that our legal structure establishes.

At the practical constitutional level, the Tanodbayan (now the Office of the Special Prosecutor)
cannot protect the Ombudsman who is an impeachable officer, as the power to remove the
Ombudsman rests with Congress as the representative of the people. 14 On the other hand, should
the Ombudsman attempt to shield the Tanodbayan from answering for any violation, the matter may
be raised with the Supreme Court on appeal15 or by Special Civil Action for Certiorari, 16 whichever
may be applicable, in addition to the impeachment proceedings to which the Ombudsman may be
subjected. For its part, the Supreme Court is a non-political independent body mandated by the
Constitution to settle judicial and quasi-judicial disputes, whose judges and employees are not
subject to the disciplinary authority of the Ombudsman and whose neutrality would be less
questionable. In these lights, the checks and balance principle that underlies the Constitution can be
appreciated to be fully operational.

I find it significant that the Office of the Ombudsman is not the only governmental body labeled as
"independent" in our Constitution. The list includes the Judiciary, 17 the Constitutional Commissions
(Commission on Elections, Commission on Audit, and the Civil Service Commission), 18 the
Commission on Human Rights,19 a central monetary authority,20 and, to a certain extent, the National
Economic Development Authority.21 These bodies, however, are granted various degrees of
"independence" and these variations must be clarified to fully understand the context and meaning
of the "independent" status conferred on the office of the Ombudsman.

The independence enjoyed by the Office of the Ombudsman, by the Constitutional Commissions,
and by the Judiciary shares certain characteristics - they do not owe their existence to any act of
Congress, but are created by the Constitution itself; additionally, they all enjoy fiscal autonomy. 22

For most, if not for all of these "independent" bodies, the framers of the Constitution intended that
they be insulated from political pressure. As a checks and balance mechanism, the Constitution, the
Rules of Court, and their implementing laws provide measures to check on the "independence"
granted to the Constitutional Commissions and the Office of the Ombudsman; the Supreme Court,
as the final arbiter of all legal questions, may review the decisions of the Constitutional Commissions
and the Office of the Ombudsman, especially when there is grave abuse of discretion. 23 Of course,
foisted over the Members of the Supreme Court is the power of impeachment that Congress has the
authority to initiate, and carry into its logical end a meritorious impeachment case. 24 Such is the
symmetry that our Constitution provides for the harmonious balance of all its component and
"independent" parts.

In Bengzon v. Drilon,25 we ruled on the fiscal autonomy of the Judiciary, and ruled against the
interference that the President may bring. In doing so, we maintained that the independence, and
the flexibility of the Judiciary, the Constitutional Commissions and the Office of the Ombudsman are
crucial to our legal system:
The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence
and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and
constraints on the manner the independent constitutional offices allocate and utilize the funds
appropriated for their operations is anathema to fiscal autonomy and violative not only the express
mandate of the Constitution but especially as regards the Supreme Court, of the independence and
separation of powers upon which the entire fabric of our constitutional system is based.

As in the case of the Office of the Ombudsman, the constitutional deliberations explain the
Constitutional Commissions' need for independence.

In the deliberations for the 1973 Constitution, the delegates amended the 1935 Constitution by
providing for a constitutionally-created Civil Service Commission, instead of one created by law,
based on the precept that the effectivity of this body is dependent on its freedom from the tentacles
of politics:

DELEGATE GUNIGUNDO x x x

(b) because we believe that the Civil Service created by law has not been able to eradicate the ills
and evils envisioned by the framers of the 1935 Constitution; because we believe that the Civil
Service created by law is beholden to the creators of that law and is therefore not politics-free, not
graft-free and not corruption-free; because we believe that as long as the law is the reflection of the
will of the ruling class, the Civil Service that will be created and recreated by law will not serve the
interest of the people but only the personal interest of the few and the enhancement of family power,
advancement and prestige.26

The deliberations of the 1987 Constitution on the Commission on Audit, on the other hand,
highlighted the developments in the past Constitutions geared towards insulating the Commission on
Audit from political pressure:

MR. JAMIR. x x x

When the 1935 Constitution was enacted, the auditing office was constitutionalized because of the
increasing necessity of empowering the auditing office to withstand political pressure. Finding a
single Auditor to be quite insufficient to withstand political pressure, the 1973 Constitution
established the Commission consisting of three members- a chairman and two commissioners. 27

In Brillantes, Jr. v. Yorac,28 we pointedly emphasized that the Constitutional Commissions, which
have been characterized under the Constitution as "independent," are not under the control of the
President, even if they discharge functions that are executive in nature. Faced with a temporary
presidential appointment in the Commission on Elections, this Court vigorously denied the President
the authority to interfere in these constitutional bodies:

The lack of a statutory rule covering the situation at bar is no justification for the President of the
Philippines to fill the void by extending the temporary designation in favor of the respondent. This is
still a government of laws and not of men. The problem allegedly sought to be corrected, if it existed
at all, did not call for presidential action. The situation could have been handled by the members of
the Commission on Elections themselves without the participation of the President, however well-
meaning.

xxxx
x x x. But while conceding her goodwill, we cannot sustain her act because it conflicts with the
Constitution.

The Commission on Human Rights, also created by the Constitution as an "independent"

office,29 enjoys lesser independence since it was not granted fiscal autonomy, in the manner fiscal
autonomy was granted to the offices above-discussed. The lack of fiscal autonomy notwithstanding,
the framers of the 1987 Constitution clearly expressed their desire to keep the Commission
independent from the executive branch and other political leaders:

MR. MONSOD. We see the merits of the arguments of Commissioner Rodrigo. If we explain to him
our concept, he can advise us on how to reconcile his position with ours. The position of the
committee is that we need a body that would be able to work and cooperate with the executive
because the Commissioner is right. Many of the services needed by this commission would need not
only the cooperation of the executive branch of the government but also of the judicial branch of
government. This is going to be a permanent constitutional commission over time. We also want a
commission to function even under the worst circumstance when the executive may not be very
cooperative. However, the question in our mind is: Can it still function during that time? Hence, we
are willing to accept suggestions from Commissioner Rodrigo on how to reconcile this. We realize
the need for coordination and cooperation. We also would like to build in some safeguards that it will
not be rendered useless by an uncooperative executive.

xxxx

MR. GARCIA. Thank you very much, Madame President.

Before we address the procedural question which Commissioner Rodrigo requested, I would like to
touch on a very important question which I think is at the very heart of what we are trying to propose-
the independence of this Commission on Human Rights. xxx

When I was working as a researcher for Amnesty International, one of my areas of concern was
Latin America. I headed a mission to Colombia in 1980. I remember the conversation with President
Julio Cesar Turbay Ayala and he told me that in Colombia, there were no political prisoners. This is a
very common experience when one goes to governments to investigate human rights. From there,
we proceeded to the Procuraduria General to the Attorney-General, to the Ministry of Justice, to the
Ministry of Defense, and normally the answers that one will get are: "There are no political prisoners
in our country"; "Torture is not committed in this country." Very often, when international
commissions or organizations on human rights go to a country, the most credible organizations are
independent human rights bodies. Very often these are private organizations, many of which are
prosecuted, such as those we find in many countries in Latin America. In fact, what we are
proposing is an independent body on human rights, which would provide governments with
credibility precisely because it is independent of the present administration. Whatever it says on the
human rights situation will be credible because it is not subject to pressure or control from the
present political leadership.

Secondly, we all know how political fortunes come and go. Those who are in power yesterday are in
opposition today and those who are in power today may be in the opposition tomorrow. Therefore, if
we have a Commission on Human Rights that would investigate and make sure that the rights of
each one is protected, then we shall have a body that could stand up to any power, to defend the
rights of individuals against arrest, unfair trial, and so on. 30 (Emphases ours.)

Similarly, the Constitution grants Congress the authority to establish an independent central
monetary authority.31 Under these terms, this office is not constitutionally-created nor does it possess
fiscal autonomy. When asked what "independence" means in this provision, Commissioner Bernardo
Villegas again reiterated the intention of various framers for it to be independent of the executive
branch:

MR. VILLEGAS. No, this is a formula intended to prevent what happened in the last regime when the
fiscal authorities sided with the executive branch and were systematically in control of monetary
policy. This can lead to disastrous consequences. When the fiscal and the monetary authorities of a
specific economy are combined, then there can be a lot of irresponsibility. So, this word
"independent" refers to the executive branch.32

The National Economic Development Authority, nominally designated as "independent," differs from
the other similarly-described agencies because the constitutional provision that provides for its
creation immediately puts it under the control of the executive. 33 This differing shade of
"independence" is supported by the statements made during the constitutional deliberations:

MR. MONSOD. I believe that the word "independent" here, as we answered Commissioner Azcuna,
was meant to be independent of the legislature because the NEDA under the present law is under
the Office of the President.

MR. COLAYCO. Yes. In other words, the members of that agency are appointed by the President?

MR. VILLEGAS. That is right.

MR. MONSOD. Yes.

MR. VILLEGAS. The President heads the NEDA.34

Commissioner Monsod continues by explaining that they did not constitutionalize the National
Economic Development Authority, and, in accordance with the second paragraph of Section 9,
Article XII of the 1987 Constitution, even left to Congress the discretion to abolish the office:

MR. MONSOD. During the Committee hearings, there were proposals to change the composition of
the governing body not only of the Monetary Board but also of the NEDA. That is why if we notice in
this Article, we did not constitutionalize the NEDA anymore unlike in the 1973 Constitution. We are
leaving it up to Congress to determine whether or not the NEDA is needed later on. The idea of the
Committee is that if we are going for less government and more private sector initiative, later on it
may not be necessary to have a planning agency. Thus, it may not be necessary to constitutionalize
a planning agency anymore.

So this provision leaves room for the legislature not only to revise the composition of the governing
body, but also to remove the NEDA once it is no longer needed in its judgment. 35

These deliberative considerations make it abundantly clear that with the exception of the National
Economic Development Authority, the independent constitutional bodies were consistently intended
by the framers to be independent from executive control or supervision or any form of political
influence.

This perspective abundantly clarifies that the cases cited in the ponencia - Hon. Hagad v. Hon.
Gozodadole36 and Office of the Ombudsman v. Delijero, Jr.37 - are not in point. These cases refer to
the disciplinary authority of the Executive over a public school teacher and a local elective official.
Neither of these officials belongs to independent constitutional bodies whose actions should not
even be tainted with any appearance of political influence.

In my view, the closest and most appropriate case to cite as exemplar of independence from
executive control is Bautista v. Senator Salonga, 38 where this Court categorically stated, with respect
to the independent Commission on Human Rights, that the tenure of its Commissioners could not be
placed under the discretionary power of the President:

Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and created by
the Constitution to be independent - as the Commission on Human Rights - and vested with the
delicate and vital functions of investigating violations of human rights, pinpointing responsibility and
recommending sanctions as well as remedial measures therefor, can truly function with
independence and effectiveness, when the tenure in office of its Chairman and Members is made
dependent on the pleasure of the President. Executive Order No. 163-A, being antithetical to the
constitutional mandate of independence for the Commission on Human Rights has to be declared
unconstitutional.39

Also in point as another "independence" case is Atty. Macalintal v. Comelec, 40 this time involving the
Commission on Elections, which gave the Court the opportunity to consider even the mere review of
the rules of the Commission on Elections by Congress a "trampling" of the constitutional mandate of
independence of these bodies. Obviously, the mere review of rules places considerably less
pressure on these bodies than the Executive's power to discipline and remove key officials of the
Office of the Ombudsman. The caution of, and the strong words used by, this Court in protecting the
Commission on Elections' independence should - in addition to those expressed before the
Constitutional Commissions and in Congress in the course of framing RA No. 6770 - speak for
themselves as reasons to invalidate the more pervasive authority granted by Section 8(2) of RA No.
6770.

Thus, in the case of independent constitutional bodies, with the exception of the National Economic
Development Authority, the principle that the President should be allowed to remove those whom he
is empowered to appoint (because of the implied power to dismiss those he is empowered to
appoint41) should find no application. Note that the withholding of the power to remove is not a
stranger to the Philippine constitutional structure.

For example, while the President is empowered to appoint the Members of the Supreme Court and
the judges of the lower courts,42 he cannot remove any of them; the Members of the Supreme Court
can be removed only by impeachment and the lower court judges can be removed only by the
Members of the Supreme Court en banc. This is one of the modes by which the independence of the
Judiciary is ensured and is an express edge of the Judiciary over the other "independent"
constitutional bodies.

Similarly, the President can appoint Chairmen and Commissioners of the Constitutional
Commissions, and the Ombudsman and her Deputies, 43 but the Constitution categorically provides
that the Chairmen of the Constitutional Commissions and the Ombudsman can only be removed by
impeachment.44 The absence of a constitutional provision providing for the removal of the
Commissioners and Deputy Ombudsmen does not mean that Congress can empower the President
to discipline or remove them in violation of the independence that the Constitution textually and
expressly provides.45 As members of independent constitutional bodies, they should be similarly
treated as lower court judges, subject to discipline only by the head of their respective offices and
subject to the general power of the Ombudsman to dismiss officials and employees within the
government for cause. No reason exists to treat them differently.
While I agree with Justice Carpio's opinion that the Constitution empowered Congress to determine
the manner and causes for the removal of non-impeachable officers, we cannot simply construe
Section 2, Article XI of the Constitution to be a blanket authority for Congress to empower the
President to remove all other public officers and employees, including those under the independent
constitutional bodies. When the Constitution states that Congress may provide for the removal of
public officers and employees by law, it does not mean that the law can violate the provisions and
principles laid out in the Constitution. The provision reads:

The President, the Vice-President, the Members of the Supreme Court, the Members of the
Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for,
and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other
high crimes, or betrayal of public trust. All other public officers and employees may be removed from
office as provided by law, but not by impeachment. (emphasis and underscoring ours)

The deliberations of the Constitutional Commissions, as quoted by Justice Carpio, explain an

important aspect of the second sentence of Section 2, Article XI of the Constitution- that it was not
the intent to widen the discretion of Congress in providing for the removal of a public officer; the
intent was to limit its powers. The second sentence of Section 2, Article XI was provided to limit the
public officers who can only be removed by impeachment. This limitation is one made necessary by
past experiences. In an earlier law, Presidential Decree No. 1606, Congress provided, by law, that
justices of the Sandiganbayan (who are not included in the enumeration) may only be removed by
impeachment. Commissioner Regalado insisted on adding the second sentence of Section 2, Article
XI of the Constitution to prevent Congress from extending the more stringent rule of "removal only
by impeachment" to favored public officers.46

Ultimately, the question now before this Court goes back to whether the Constitution intended to
allow political entities, such as the Executive, to discipline public officers and employees of
independent constitutional bodies. If this is the intent, then Congress cannot have the authority to
place the power to remove officers of these "independent constitutional bodies" under executive
disciplinary authority unless otherwise expressly authorized by the Constitution itself. I firmly take
this position because the drafters repeatedly and painstakingly drafted the constitutional provisions
on the independent constitutional bodies to separate them from executive control. Even after the
other delegates made it clear that the easier path would be to place these bodies under the control
of the President, the majority nevertheless voted against these moves and emphatically expressed
its refusal to have these offices be made in any way under the disciplinary authority of the Executive.

This constitutional intent rendered it necessary for the Constitution to provide the instances when
executive interference may be allowed. In the case of the National Economic Development Authority,
the Constitution explicitly provided that the President may exert control over this body. The
Constitution was also explicit when it empowered the President to appoint the officers of the other
"independent" bodies, and even then, this power was qualified: (1) in the cases of the Constitutional
Commissions, by giving the chairmen and the members staggered terms of seven years to lessen
the opportunity of the same President to appoint the majority of the body; 47 and

(2) in the case of the Ombudsman and his Deputies, by limiting the President's choice from a list
prepared by the Judicial and Bar Council.48

Thus, we cannot maintain a light and cavalier attitude in our constitutional interpretation and merely
say that the "independence" of the constitutional bodies is whatever Congress would define it at any
given time. In the cases I have cited - Bautista v. Senator Salonga, 49 Atty. Macalintal v.
Comelec,50 and Brillantes, Jr. v. Yorac51 - this Court did not merely leave it to the Legislature or the
Executive to freely interpret what "independence" means. We recognized in the term a meaning fully
in accord with the intent of the Constitution.

This intent was the same guiding light that drove this Court to rule that the President cannot
determine the tenure of the Commission on Human Rights Chairman and Members; that Congress
cannot enact a law that empowers it to review the rules of the Commission on Elections; and that the
President cannot even make interim appointments in the Commission on Elections.

After halting these lesser infractions based on the constitutional concept of "independence," it would
be strange - in fact, it would be inconsistent and illogical for us - to rule at this point that Congress
can actually allow the President to exercise the power of removal that can produce a chilling effect in
the performance of the duties of a Special Prosecutor or of the Deputy Ombudsman.

I draw attention to the fact that Sections 9, 10, 11 and 12, Article XI of the Constitution do not only
refer to the Ombudsman, but also to the Ombudsman's Deputies. Section 9 provides for their
appointment process. While the President can appoint them, the appointment should be made from
the nominations of the Judicial and Bar Council and the appointments do not require confirmation.
Section 10 gives the Ombudsman and the Deputies the same rank and salary as the Chairmen and
Members of the Constitutional Commission. The salary may not be diminished during their term.
Section 11 disqualifies them from reappointment and participation in the immediately succeeding
elections, in order to insulate them further from politics. Section 12 designates the Ombudsman and
the Deputies as "protectors of the people" and directs them to act promptly on all complaints against
public officials or employees.1âwphi1

Under this structure providing for terms and conditions fully supportive of "independence," it makes
no sense to insulate their appointments and their salaries from politics, but not their tenure. One
cannot simply argue that the President's power to discipline them is limited to specified grounds,
since the mere filing of a case against them can result in their suspension and can interrupt the
performance of their functions, in violation of Section 12, Article XI of the Constitution. With only one
term allowed under Section 11, a Deputy Ombudsman or Special Prosecutor removable by the
President can be reduced to the very same ineffective Office of the Ombudsman that the framers
had foreseen and carefully tried to avoid by making these offices independent constitutional bodies.

At the more practical level, we cannot simply turn a blind eye or forget that the work of the Office of
the Ombudsman, like the Constitutional Commissions, can place the officers of the Executive branch
and their superior in a bad light. We cannot insist that the Ombudsman and his Deputies look into all
complaints, even against those against Executive officials, and thereafter empower the President to
stifle the effectiveness of the Ombudsman and his or her Deputies through the grant of disciplinary
authority and the power of removal over these officers. Common and past experiences tell us that
the President is only human and, like any other, can be displeased. At the very least, granting the
President the power of removal can be counterproductive, especially when other less political
officers, such as the Ombudsman and the Judiciary, already have the jurisdiction to resolve
administrative cases against public officers under the Office of the Ombudsman.

Given the support of the Constitution, of the Records of the Constitutional Commission, and of
previously established jurisprudence, we cannot uphold the validity of Section 8(2) of RA No. 6770
merely because a similar constitutionally-unsupported provision exists under RA No. 7653. Under
our legal system, statutes give way to the Constitution, to the intent of its framers and to the
corresponding interpretations made by the Court. It is not, and should not be, the other way around.

I join the ponente in declaring that the Deputy Ombudsmen and Special Prosecutors should not
escape accountability for their wrongdoing or inefficiency. I differ only in allowing the President, an
elective official whose position is primarily political, to discipline or remove members of independent
constitutional bodies such as the Office of the Ombudsman. Thus, the administrative proceedings
conducted by the Office of the President against petitioner Gonzales should be voided and those
against petitioner Sulit discontinued.

Lastly, while I find the proceedings before the Office of the President constitutionally infirm, nothing
in this opinion should prevent the Ombudsman from conducting the proper investigations and, when
called for, from filing the proper administrative proceedings against petitioners Gonzales and Sulit. In
the case of Gonzales, further investigation may be made by the Ombudsman, but only for aspects of
his case not otherwise covered by the Court's Decision.

ARTURO D. BRION
Associate Justice

Footnotes

1
 Rollo, Vol. 1, p. 322.

2
 Id. at 72-86.

3
 Rollo, Vol. 2, p. 8.

 See Department of Justice v. Hon. Liwag, 491 Phil. 270, 283 (2005); and Deloso v.
4

Domingo, G.R. No. 90591, November 21, 1990, 191 SCRA 545, 550-551.

 Atty. Aguirre, Jr. v. De Castro, 378 Phil. 714, 726 (1999); Hon. Bagatsing v. Hon. Melencio-
5

Herrera, 160 Phil. 449, 458 (1975); and Lacson v. Romero, 84 Phil. 740, 749 (1949).

6
 Section 8. Removal; Filling of Vacancy.-

xxxx

(2) A Deputy or the Special Prosecutor may be removed from office by the President
for any of the grounds provided for the removal of the Ombudsman, and after due
process.

7
 Ponencia, p. 22.

8
 Id. at 22-23.

9
 Bautista v. Senator Salonga, 254 Phil. 156, 179 (1989).

10
 CONSTITUTION, Article VIII, Sections 1 and 5(2).

11
 Record of the Constitutional Commission, Vol. 2, July 26, 1986, p. 294.

12
 Id. at 294.
13
 Ponencia, p. 22.

14
 CONSTITUTION, Article XI, Section 2.

15
 RA No. 6770, Section 27.

16
 RULES OF COURT, Rule 65.

17
 CONSTITUTION, Article VIII, Sections 1, 2, 3, 6, 10 and 11.

18
 Id., Article IX(A), Section 1.

19
 Id., Article XIII, Section 17(1).

20
 Id., Article XII, Section 20.

21
 Ibid.

22
 Id., Article VIII, Section 3; Article IX(A), Section 5; and Article XI, Section 14.

23
 Id., Article VIII, Section 5.

24
 Id., Article XI, Section 2.

25
 G.R. No. 103524 and A.M. No. 91-8-225-CA, April 15, 1992, 208 SCRA 133, 150.

 Speech, Session of February 18, 1972, as cited in "The 1987 Constitution of the Republic
26

of the Philippines: A Commentary" by Joaquin Bernas, 2003 ed., p. 1009.

27
 Record of the Constitutional Commission, Vol. 1, July 15, 1986, pp. 532-533.

28
 G.R. No. 93867, December 18, 1990, 192 SCRA 358, 361.

29
 Section 17(1), Article XIII of the 1987 Constitution reads:

Section 17. (1) There is hereby created an independent office called the Commission
on Human Rights.

30
 Records of the Constitutional Commission, Vol. 3, August 27, 1986, pp. 748-749.

31
 Section 20, Article XII of the 1987 Constitution reads:

Section 20. The Congress shall establish an independent central monetary authority,
the members of whose governing board must be natural-born Filipino citizens, of
known probity, integrity, and patriotism, the majority of whom shall come from the
private sector.

32
 Record of the Constitutional Commission, Vol. 3, August 13, 1986, p. 268.

33
 Section 9, Article 12 of the 1987 Constitution reads:
 Section 9. The Congress may establish an independent economic and planning
agency headed by the President, which shall, after consultations with the appropriate
public agencies, various private sectors, and local government units, recommend to
Congress, and implement continuing integrated and coordinated programs and
policies for national development.

Until Congress provides otherwise, the National Economic and Development

Authority shall function as the independent planning agency of the government.

34
 Record of the Constitutional Commission, Vol. 3, August 13, 1986, p. 263.

35
 Id. at 263-264.

36
 321 Phil. 604 (1995).

37
 G.R. No. 172635, October 20, 2010, 634 SCRA 135.

38
 Supra note 9.

39
 Id. at 183-184.

40
 453 Phil. 586, 658-659 (2003).

 Supra note 5. Section 17, Article VII, and Section 4, Article X of the Constitution likewise
41

provide that:

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

Section 4. The President of the Philippines shall exercise general supervision over
local governments.

42
 CONSTITUTION, Article VIII, Section 9.

 Id., Article IX(B), Section 1(2); Article IX(C), Section 1(2); Article IX(D), Section 1(2); and
43

Article XI, Section 9.

44
 Id., Article XI, Section 2.

45
 Id., Article IX(A), Section 1 and Article XI, Section 5 read:

Section 1. The Constitutional Commissions, which shall be independent, are the Civil
Service Commission, the Commission on Elections, and the Commission on Audit.

Section 5. There is hereby created the independent Office of the Ombudsman,

composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and
at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for
the military establishment may likewise be appointed.

46
 Record of the Constitutional Commission, Vol. 2, July 28, 1986, p. 356 reads:
 MR. REGALADO. xxx The reason for the amendment is this: While Section 2
enumerates the impeachable officers, there is nothing that will prevent the legislature
as it stands now from providing also that other officers not enumerated therein shall
also be removable only by impeachment, and that has already happened.

Under Section 1 of P.D. No,, 1606, the Sandiganbayan Decree, justices of the
Sandiganbayan may be removed only by impeachment, unlike their counterparts in
the then Court of Appeals. They are, therefore, a privileged class xxx

xxxx

MR. REGALADO. xxx But the proposed amendment with not prevent the legislature
from subsequently repealing or amending that portion of the law PD No. 1606. Also,
it will prevent the legislature from providing for favored public officials as not
removable except by impeachment.

47
 CONSTITUTION, Article IX-B, C, and D, Section 1(2).

48
 Id., Article XI, Section 9.

49
 Supra note 9.

50
 Supra note 39.

51
 Supra note 27.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

ABAD, J.:

This case is not too complicated. Section 8(2) of Republic Act (R.A.) 6770 gave the Office of the
President (OP) the power to investigate and remove from office the Deputies Ombudsman and the
Special Prosecutor who work 9irectly under the supervision and control of the Ombudsman. Using
this power, the OP investigated and found petitioner Emilio Gonzales III, Deputy I Ombudsman . for
the Military and Other Law Enforcement Offices, guilty of gross neglect in handling the pending case
against a police officer who subsequently hijacked a tourist bus. Using the same power, the OP
initiated a similar investigation of a case against petitioner Wendell Barreras-Sulit, the Special
Prosecutor, for alleged corruption, she having allowed her I office to enter into a plea-bargaining
agreement with Major General Carlos F. Garcia who had been charged with plunder.

Gonzales and Sulit filed separate petitions, the first in G.R. 196231 and the second in G.R. 196232.
Gonzales assails the correctness of the OP decision that dismissed him from the service. Both
challenges the constitutionality of Section 8(2) of R.A. 6770 which gave the President the power to
investigate and remove them.
The ponencia would have the Court uphold the constitutionality of Section 8(2 , R.A. 6770 that
empowers the President to investigate and remove Deputy Ombudsman Gonzales and Special
Prosecutor Sulit from office. It argues that, although the Constitution expressly provides for the
removal of (e Ombudsman himself, which is by impeachment, it fails to provide a procedure for the
removal from office of a Deputy Ombudsman or Special Prosecutor. By enacting Section 8(2) of R.A.
6770, Congress simply filled in a void that the Constitution itself authorizes.

The ponencia relies on Section 2, Article XI of the Constitution for support:

Section 2. The President, the Vice-President, the Members of the Supreme Court, the Members of
the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment
for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption,
other high crimes, or betrayal of public trust. All other public officers and employees may be
removed from office as provided by law, but not by impeachment. (Emphasis ours)

The removal from office of a Deputy Ombudsman or a Special Prosecutor, says the ponencia, falls
in the category of public officers and employees that "may be removed from office as provided by
law."

True enough, the above Section 2 above provides that only the President, the Vice-President, the
Members of the Supreme Court, the Members of the Constitutional Commissions, and the
Ombudsman may be removed by impeachment and that other public officers and employees may be
removed by law. But this cannot literally be taken to mean that Congress may authorize the
President to investigate and remove all non-impeachable public officers and employees.

Surely, Congress may not authorize the President to exercise this power against those that the
Constitution expressly or implicitly shields from his influence or intervention. For instance, Congress
cannot authorize the President to remove lower court judges, although they are not subject to
impeachment, since such authority is reserved by the Constitution to the Supreme Court. 1 Further,
as the Court held in Bautista v. Salonga,2 although the Chairman and Members of the Commission
on Human Rights are not impeachable public officials, their terms cannot be made to depend on the
pleasure of the President since the Constitution perceives them as exercising functions independent
of him.

Actually, there was no existing "void" in the matter of the removal of the Deputy Ombudsman and
the Special Prosecutor when Congress enacted R.A. 6770. Administrative Code of 1987, then in
force, already vested in heads of offices, including the Ombudsman, the power to investigate and
take disciplinary action against all officers and employees under him, the Deputy Ombudsman and
the Special Prosecutor included.3

In subsequently enacting R.A. 6770, Congress in effect removed such power of investigation and
removal, insofar as the Deputy Ombudsman and the Special Prosecutor were concerned, from the
Ombudsman and transferred the same to the President. As will shortly be shown below, such
wresting of power from the Ombudsman is an appalling blow to his constitutionally mandated
independence from the influence and threats of the other departments and agencies of government.

Section 5, Article XI of the 1987 Constitution provides:

Section 5. There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one overall Deputy, and at least one Deputy each for
Luzon, Visayas and Mindanao. A separate Deputy for the military establishment may likewise be
appointed. (Emphasis supplied)
The Constitution has reasons for making the Office of the Ombudsman "independent." Its primordial
duty is to investigate and discipline all elective and appointive government officials. 4 Specifically,
Section 13, Article XI of the Constitution vests in that Office the absolute power to investigate any
malfeasance, misfeasance, or non-feasance of public officers or employees. This function places it a
notch higher than other grievance-handling, investigating bodies. With the exception of those who
are removable only by impeachment, the Office of the Ombudsman can investigate and take action
against any appointive or elected official for corruption in office, be they Congressmen, Senators,
Department Secretaries, Governors, Mayors, or Barangay Captains.

Thus, the Office of the Ombudsman needs to be insulated from the pressures, interventions, or
vindictive acts of partisan politics.5 The Court has itself refrained from interfering with the Office of
the Ombudsman's exercise of its powers. It is not the Court but the Ombudsman who is the
champion of the people and the preserver of the integrity of public service. 6 The Office of the
Ombudsman, which includes the Deputy Ombudsman and the Special Prosecutor, cannot be
beholden to or fearful of any one, the President included. 7

The power to impeach is a function of check and balance under the Constitution. But the power to
remove "public officers and employees" from office, in the realm of administrative law, is a function
of supervision, if not control. Keeping the Deputies in the Office of the Ombudsman and the Special
Prosecutor independent as the Constitution commands and subjecting them to the President's
control or supervision are incompatible ideas.

To say that the Deputy Ombudsman and the Special Prosecutor will remain independent of the
President notwithstanding that he can investigate and remove them from office at any time is the
equivalent of saying that monkeys grow out of trees. If there is any one that the holder of public
office fears, it is that person who has the power to remove him.

If the Court were to uphold the Constitutionality of Section 8(2) of R.A. 6770, then the Deputy
Ombudsman and the Special Prosecutor will be able to openly defy the orders of the Ombudsman
and disregard his policies without fear of disciplinary sanction from him. The law makes them subject
to investiga4on and removal only by the President. It is him they have to obey and will obey. Surely,
this is not what the Constitution contemplates in an "independent" Office of the Ombudsman.

The present cases are precisely in point. The Ombudsman did not herself appear to regard
Gonzales and Sulit's actuations in the subject matters of the cases against them worthy of
disciplinary action. But, given that the Secretary of Justice, an alter ego of the President, took an
opposite view, the President deigned to investigate them. In effect, the President is able to substitute
his judgment for that of the Ombudsman in a matter concerning function of the latter's office. This
gives the President a measure of control over the Ombudsman's work.

From here on, if the Court chooses to uphold the constitutionality of Section 8(2 of R.A. 6770, the
Deputy Ombudsman and the Special Prosecutor should be consulting the Office of the President or
the Secretary of Justice before they act in any case in which the latter has an interest. This is the
ludicrous and unpalatable situation that the framers of the Constitution envisaged and sought to
avoid when they granted the Office of the Ombudsman independence from others who wield
governmental powers.8

I, therefore, vote to grant the petitions, declare Section 8(2) of Republic Act 6770 that empowers the
President to remove the Deputy Ombudsman and the Special Prosecutor unconstitutional and void,
annul the decision of he Office of the President against Deputy Ombudsman Emilio Gonzales III
dated March 31, 2011, and permanently enjoin that Office from further proceeding with the
administrative case against Special Prosecutor Wendell Barreras-Sulit.
ROBERTO A. ABAD
Associate Justice

Footnotes

1
 Section 11, Article VIII of the 1987 Constitution -

"The Members of the Supreme Court and judges of lower courts shall hold office
during good behavior until they reach the age of seventy years or become
incapacitated to discharge the duties of their office. The Supreme Court en banc
shall have the power to discipline judges of lower courts, or order their dismissal by a
vote of a majority of the Members who actually took part in the deliberations on the
issues in the case and voted thereon." (Emphasis ours)

G.R. No. 71908 February 4, 1986

ALBERTO G. ROMULO, JOSE B. LAUREL, MARCELO B. FERNAN, CECILIA MUÑOZ PALMA,

EDMUNDO B. CEA, ANTONIO CUENCO, HOMOBONO ADAZA, CIRIACO ALFELOR, ROLANDO
ANDAYA, HONORATO AQUINO, JOSE ATIENZA, JR., NATALIO BELTRAN, JR., CESAR V.
BOLANOS, DOUGLAS R. CAGAS, FERRER MIN A. CARAM, NENITA C. DALUZ, ARTHUR D.
DEFENSOR, EMILIO N. DELA PAZ, HILARIO DE PEDRO, DEMETRIO G. DEMETRIA, MANUEL
C. DOMINGO, CARLOS C. FERNANDEZ, JOLLY T. FERNANDEZ, JAIME N. FERRER, WILSON
P. GAMBOA, ROGELIO GARCIA, ROLLEO L. IGNACIO, EVA ESTRADA KALAW, RAFAEL L.
LAZATIN, EMIGDIO L. LINGAD, GEMILIANO C. LOPEZ, JR., PEDRO M. MARCELLANA, JR.,
ROLANDO C. MARCIAL, BIENVENIDO MARQUEZ, ANTONIO C. MARTINEZ, ORLANDO S.
MERCADO, ROGACIANO M. MERCADO, RAMON V. MITRA, JR., JUANITA L. NEPOMUCENO,
ROY B. PADILLA, HERNANDO B. PEREZ, GONZALO G. PUYAT, II, HIALMAR P. QUINTANA,
ISIDRO E. REAL, JR., ZAFIRO L. RESPICIO, VIRGILIO P. ROBLES, AUGUSTO S. SANCHEZ,
OSCAR F. SANTOS, FRANCISCO S. SUMULONG, EMIGDIO S. TANJUATCO, LUIS R.
VILLAFUERTE and VICTOR ZIGA, petitioners,
vs.
HON. NICANOR E. YÑIGUEZ, MANUEL M. GARCIA, GUARDSON R. LOOD, RENATO L.
CAYETANO, ANTONIO M. DIAZ, DAMIAN V. ALDABA, JUAN PONCE ENRILE, ADELINO B.
SITOY, LEONARDO PEREZ, ALEJANDRO ALMENDRAS, SALACNIB F. BATERINA, LUIS S.
ETCUBAÑEZ, CONCORDIO C. DIEL, REGALADO E. MAAMBONG, TEODULO C. NATIVIDAD,
MACACUNA DIMAPORO, SALVADOR B. BRITANICO and COMMITTEE ON JUSTICE, HUMAN
RIGHTS AND GOOD GOVERNMENT, respondents.

Napoleon J. Poblador for respondent R. Cayetano.

PATAJO, J.:

Petition for prohibition to restrain respondents from enforcing Sections 4, 5, 6 and 8 of the Batasan
Rules of Procedure in Impeachment Proceedings and mandamus to compel the Batasan Committee
on Justice, Human Rights and Good Government to recall from the archives and report out the
resolution together with the verified complaint for the impeachment of the President of the
Philippines.

Petitioners, representing more than one-fifth of all members of the Batasan, filed with the Batasan on
August 13, 1985 Resolution No. 644 calling for the impeachment of President Marcos together with
a verified complaint for impeachment. Said resolution and complaint were referred by the Speaker to
the Committee on Justice, Human Rights and Good Government. The Committee found the
complaint not sufficient in form and substance to warrant its further consideration and disapproved
Resolution No. 644 and dismissed all the charges contained in the complaint attached thereto on
August 14, 1985. It then submitted its report which was duly noted by the Batasan and sent to the
archives.

On August 14, 1985, MP Ramon V. Mitra filed with the Batasan a motion praying for the recall from
the archives of Resolution No. 644 and the verified complaint attached thereto. Said motion was
disapproved by the Batasan.

On September 7, 1985, the present petition was filed with this Court. In said petition, petitioners pray
that after hearing this Court declare Sections 4, 5, 6 and 8 of the Batasan Rules on Impeachment
which was approved by the Batasan on August 16, 1984 by a vote of 114 in favor and 58 against,
unconstitutional, and Committee Report No. 154 of the Batasan Committee on Justice, Human
Rights and Good Government dismissing Resolution No. 644 and the complaint for impeachment
attached thereto, null and void. They also pray that this Court issue a writ of preliminary injunction
restraining respondents from enforcing and questioned provisions of the aforementioned Rules and
a Writ of preliminary mandatory injunction commanding the Batasan Committee on Justice, Human
Rights and Good Government to recall from the archives and report out the resolution and complaint
for impeachment in order that the impeachment trial can be conducted forthwith by the Batasan as a
body.

In G.R. No. L-71688 filed on August 17, 1985, Arturo M. de Castro and Perfecto L. Cagampang,
claiming to be members of good standing of the Integrated Bar of the Philippines and taxpayers, filed
a petition with this Court for certiorari to annul the resolution of the Committee on Justice, Human
Rights and Good Government, the very same resolution subject of the present petition, dismissing
the complaint for the impeachment of the President of the Philippines signed by the petitioners in the
present case, and mandamus to compel said Committee on Justice and the Batasan, represented
by its Speaker, to give due course to said complaint for impeachment. In denying due course to said
petition and dismissing outright the same, We held:

1. The l973 Constitution has vested in the Batasan Pambansa the exclusive power to initiate, try and
decide all cases of impeachment. The action of the Committee on Justice of the Batasan to whom
the complaint for the impeachment of the President had been referred dismissing said petition for
being insufficient in form and substance involves a political question not cognizable by the Courts.
The dismissal of said petition is within the ambit of the powers vested exclusively in the Batasan by
express provision of Sec. 2, Article XIII of the Constitution and it is not within the competence of this
Court to inquire whether in the exercise of said power the Batasan acted wisely. There is no
allegation in the petition for certiorari that in the exercise of its powers the Batasan had violated any
provision of the Constitution. The fact that the Committee on Justice dismissed the petition on the
same day it was filed after deliberating on it for several hours as reported in the newspapers, radio
and television (which must have been the basis of petitioners' claim that the Committee had acted
with undue haste in unceremoniously dismissing the complaint for impeachment) does not provide
basis for concluding that there had been a violation of any provision of the Constitution which would
justify the Court's intervention to ensure proper observance of constitutional norms and conduct.
Beyond saying that the Batasan may initiate impeachment by a vote of at least one-fifth of all its
Members and that no official shall be convicted without the concurrence of at least two-thirds of all
the members thereof, the Constitution says no more. It does not lay down the procedure to be
followed in impeachment proceedings. It is up to the Batasan to enact its own rules of procedure in
said impeachment proceedings, which it had already done, The interpretation and application of said
rules are beyond the powers of the Court to review. The powers of the Batasan to dismiss a petition
for impeachment which in its judgment it finds not meritorious or defective in form and substance are
discretionary in nature and, therefore, not subject to judicial compulsion.

2. The doctrine of separation of powers still exists under the 1973 Constitution though in a modified
form made necessary because of the adoption of certain aspects of the parliamentary system in the
amended 1973 Constitution. The major powers of the Government have been distributed by the
Constitution to the President, who is the head of the State and chief executive of the Republic, the
Batasan Pambansa and the Judiciary. Under the doctrine of separation of Powers as interpreted by
the decisions of the Court, mandamus will not he from one branch of the government to a coordinate
branch to compel performance of duties within the latter's sphere of responsibility. More specifically,
this Court cannot issue a writ of mandamus against the Batasan to compel it to give due course to
the complaint for impeachment.  1

We did not dismiss outright the present petition as We did G.R. No. L-71688 but required
respondents to comment thereto in view of the claim of petitioners that the provisions of the Rules of
Procedure in Impeachment Proceedings, more specifically Sections 4, 5, 6 and 8 pursuant to which
the Batasan Committee on Justice, Human Rights and Good Government had dismissed Resolution
No. 644 and the complaint for the impeachment attached thereto are unconstitutional, implying
thereby that the Batasan or the Committee thereof had, in the exercise of powers vested upon it by
the Constitution, transgressed or violated the Constitution, certainly a justiciable question.

The provisions of the Rules of Procedure for Impeachment claimed by petitioners to be violative of
the Constitution are the following:

SEC. 4. Notice to Complainant and Respondent.— Upon due referral, the Committee on Justice,
Human Rights and Good Government shall determine whether the complaint is sufficient in form and
substance. if it finds that the complaint is not sufficient in form and substance, it shall dismiss the
complaint and shall submit its report as provided hereunder. If it finds the complaint sufficient in form
and substance, it shall furnish the respondent with copy of the resolution and verified complaint with
advise that he may answer the complaint within fifteen (15) days from notice. The answer may
include affirmative defenses. With leave of the Committee, the complainant may file a reply and the
respondent, a rejoinder.

SEC. 5. Submission of Evidence and Memoranda. —After receipt of pleadings provided for in
Section 4, or the expiration of the time within which they maybe filed, the Committee shall determine
whether sufficient grounds for impeachment exist. If it finds that sufficient grounds for impeachment
do not exist, the Committee shall dismiss the complaint and submit the report requited hereunder. If
the Committee finds that sufficient grounds for impeachment exist, the Committee shall require the
parties to support their respective allegations by the submission of affidavits and counter- affidavits,
including duly authenticated documents as may appear relevant. The Committee may, however,
require that instead of affidavits and counter-affidavits, oral testimony shall be given. It may at all
events examine and allow cross- examination of the parties and their witnesses.

After the submission of evidence, the Committee may require the submission of memoranda, after
which the matter shall be submitted for resolution.

SEC. 6. Report and Recommendations. —The Committee on Justice, Human Rights

and Good Government shall submit it a report of the Batasan containing its findings
and recommendations within thirty (30) session days from submission of the case for
resolution.

If the Committee finds by a vote of majority of all its members that probable cause has been
established it shall submit with its report a resolution setting forth the Articles of Impeachment on the
basis of the evidence adduced before the Committee.

If the Committee finds that probable cause has not been established, the complaint shall be
dismissed subject to Section 9 of these Rules.

SEC. 8. Vote Required for Trial.—A majority vote of all the members of the Batasan is necessary for
the approval of the resolution setting forth the Articles of Impeachment. If the resolution is approved
by the required vote, it shall then be set for trial on the merits by the Batasan. On the other hand,
should the resolution fail to secure approval by the required vote, the same shall result in the
dismissal of the complaint for impeachment.

It is petitioners' contention that said provisions are unconstitutional because they amend Sec. 3 of
Article XI I I of the 1973 Constitution, without complying with the mandatory amendatory process
provided for under Article XVI of the Constitution, by empowering a smaller body to supplant and
overrule the complaint to impeach endorsed by the requisitive 1/5 of all the members of the Batasan
Pambansa and that said questioned provisions derail the impeachment proceedings at various
stages by vesting the Committee on Justice, etc. the power to impeach or not to impeach, when
such prerogative belongs solely to Batasan Pambansa as a collegiate body.

Petitioners further contend that Section 8 of the Rules is unconstitutional because it imposes an
unconstitutional and illegal condition precedent in order that the complaint for impeachment can
proceed to trial before the Batasan. By requiring a majority vote of all the members of the Batasan
for the approval of the resolution setting forth the Articles of Impeachment, the Rules impose a
condition not required by the Constitution for all that Section 3, Article XIII requires is the
endorsement of at least one-fifth of all The members of the Batasan for the initiation of impeachment
proceedings or for the impeachment trial to proceed.

It is the contention of the respondents Speaker Nicanor Yniguez and the Members of the Committee
on Justice of the Batasan Pambansa that the petition should be dismissed because (1) it is a suit
against the Batasan itself over which this Court has no jurisdiction; (2) it raises questions which are
political in nature; (3) the Impeachment Rules are strictly in consonance with the Constitution and
even supposing without admitting that the Rules are invalid, their invalidity would not nullify the
dismissal of the complaint for impeachment for the Batasan as a body sovereign within its own
sphere has the power to dismiss the impeachment complaint even without the benefit of said Rules;
and (4) the Court cannot by mandamus compel the Batasan to give due course to the impeachment
complaint.

Respondent Renato L. Cayetano on the other hand contends that (1) the question involved is purely
political; (2) the petitioners are not proper parties; (3) the petition is in reality a request for an
advisory opinion made in the absence of an actual case or controversy; (4) prohibition and
mandamus are not proper remedies, and (5) preliminary mandatory injunction is not proper; while
respondent Salacnib P. Baterina contends that the petitioners lack standing to sue and impeachment
is a power lodged exclusively in the Batasan.

A closer look at the substance than the form of the petition would reveal that resolution of the
constitutionality of the questioned provisions of the Rules is not even necessary, What petitioners
are really seeking is for this Court to compel the Batasan to proceed with the hearing on the
impeachment of the President since more than one-fifth of all the members of the Batasan had filed
a resolution for the impeachment of the President and the Batasan as a body is bound under the
Constitution to conduct said trial and render judgment only after said trial and that the Committee on
Justice has no authority to dismiss the complaint for impeachment on the ground that it is not
sufficient in form and substance. Petitioners, therefore, ask that this Court order the Committee on
Justice, Human Rights and Good Government to recall from the Archives the Resolution No. 644
and the complaint for impeachment "in order that the impeachment trial can be conducted forthwith
by the Batasan as a body. (Prayer of the Petition, subpar, (ii) of Par, 2).

The question squarely presented before this Court is therefore: Has this Court jurisdiction to order
the Committee on Justice, Human Rights and Good Government to recall from the Archives and
report out the resolution and complaint for impeachment? Can this court, assuming said resolution
and complaint for impeachment are recalled from the Archives, order the Batasan to conduct a trial
on the charges contained in said resolution and complaint for impeachment?

What is important to note is that when the Batasan denied the motion of MP Ramon Mitra for the
recall from the Archives of Resolution No. 644 and the complaint for impeachment, it had in effect
confirmed the action of the Committee on Justice, Human Rights and Good Government dismissing
said resolution and complaint on impeachment. That the Batasan by even a majority vote can
dismiss a complaint for impeachment cannot be seriously disputed. Since the Constitution expressly
provides that "no official shall be convicted without the concurrence of at least two-thirds of all its
members," a majority vote of all the members of the Batasan confirming the action of the Committee
on Justice, Human Rights and Good Government disapproving the resolution calling for the
impeachment of the President and dismissing all the charges contained in the complaint attached
thereto, makes mathematically impossible the required at least two-thirds vote of all members of the
Batasan to support a judgment of conviction. What purpose would be served by proceeding further
when it is already obvious that the required two-thirds vote for conviction cannot be obtained?
Dismissal of the impeachment proceedings would then be in order.

A dismissal by the Batasan itself as a body of the resolution and complaint for impeachment (which
is what the denial by the Batasan of MP Mitra's motion to recall from the Archives said resolution and
complaint for impeachment is tantamount to) makes irrelevant under what authority the Committee
on Justice, Human Rights and Good Government had acted. The dismissal by the majority of the
members of the Batasan of the impeachment proceedings is an act of the Batasan as a body in the
exercise of powers that have been vested upon it by the Constitution beyond the power of this Court
to review. This Court cannot compel the Batasan to conduct the impeachment trial prayed for by
petitioners.

The fact that petitioners are asking that it is the Committee on Justice, Human Rights and Good
Government, not the Batasan itself, which shall be commanded by this Court to recall from the
Archives and report out the resolution and complaint for impeachment is of no moment. Aside from
the fact that said Committee cannot recall from the Archives said resolution and complaint for
impeachment without revoking or rescinding the action of the Batasan denying MP Mitra's motion for
recall (which of course it had no authority to do and, therefore, said Committee is in no position to
comply with any murder from this Court for said recall) such an order addressed to the Committee
would actually be a direct order to the Batasan itself. Such in effect was the ruling in Alejandrino vs.
Quezon 46 Phil. 83, where this Court said:

It is intimated rather faintly that, conceding all that is said with reference to the right of the Supreme
Court to issue mandamus directed to the Philippine Senate, yet we would be justified in having our
mandate run not against the Philippine Senate or against the President of the Philippine Senate and
his fellow Senators but against the secretary, the sergeant-at-arms, the disbursing officer of the
Senate. But this begs the question. If we have no authority to control the Philippine Senate, we have
no authority to control the actions of subordinate employees acting under the direction of the Senate.
The secretary, sergeant-at-arms, and disbursing officer of the Senate are mere agents of the Senate
who cannot act independently of the will of that body. Should the Court do as requested, we might
have the spectacle presented of the court ordering the secretary, the sergeant-at-arms, and the
disbursing officer of the Philippine Senate to do one thing, and the Philippine Senate ordering them
to do another thing. The writ of mandamus should not be granted unless it clearly appears that the
person to whom it is directed has the absolute power to execute it. (Turnbull vs. Giddings [1893], 95
Mich. 314; Abueva vs. Wood, supra.) (On page 94).

See also Abueva vs. Wood, 45 Phil. 612, 636, where the Court said:

. . . While it has been decided in many cases that the courts will not interfere with the legislative
department of the government in the performance of its duties, does that rule apply to the
committees duly appointed by the legislative department of the government and its officers? The
powers and duties conferred upon said committee by the Legislature granting the legality of the
object and purpose of said committee, and granting that the Legislature itself had the power to do
and to perform the duties imposed upon said committee, then an interference by the courts with the
performance of those duties by it would be tantamount to interfering with the workings and
operations of the legislative branch of the government itself. An interference by the judicial
department of the government with the workings and operations of the committee of the legislative
department would be tantamount to an interference with the workings and operations of the
legislative department itself. And, again, we are called upon to say, that one branch of the
government cannot encroach upon the domain of another without danger. The safety of our
institutions depends in no small degree, on a strict observance of this salutary rule. (Sinking Fund
Cases, 99 U.S., 700, 718; Clough vs. Curtis, 134 U.S., 361, 37 1; Wise vs. Bigger, 79 Va., 269).

Moreover, while in their petition petitioners merely asked for a writ of preliminary mandatory
injunction "commanding the Batasan Committee on Justice, Human Rights and Good Government to
recall from the Archives and report out subject resolution and verified complaint for the impeachment
of President Ferdinand E. Marcos," their ultimate objective is to have the Batasan as a body proceed
with the impeachment trial. Recall of the resolution and complaint for impeachment would be
meaningless unless the Batasan can also be compelled to conduct the impeachment trial.

For this Court to issue a writ of mandamus to the Committee on Justice, Human Rights and Good
Government, would be but an empty and meaningless gesture unless it would also order the
Batasan to proceed to try the impeachment proceedings. This, of course, the Court cannot do.
Quoting Judge Cooley in Sutherland us. Governor of Michigan 29 Mich. 320:

. . . in a case where jurisdiction is involved, no doubt it is not consistent with the

dignity of the court to pronounce judgments which may be disregarded with impunity.
..

The admonition of Alejandrino vs. Quezon, supra is of much relevance:

. . . But certainly mandamus should never issue from this court where it will not prove
to be effectual and beneficial. It should not be awarded where it will create discord
and confusion. It should not be awarded where mischievous consequences are likely
to follow. Judgment should not be pronounced which might possibly lead to
unseemly conflicts or which might be disregarded with impunity. This court should
offer no means by a decision for any possible collision between it as the highest
court in the Philippines and the Philippine Senate as a branch of a coordinate
department, or between the Court and the Chief Executive or the Chief Executive
and the Legislature. (On page 95).

In any event, We find no basis for the contention of petitioners that Sections 4, 5, 6 and 8 of the
Rules of Procedure in Impeachment are violative of the provisions of the Constitution on
Impeachment. As We said in Arturo de Castro vs. Committee on Justice, et at (G.R. No. L-71688),
"beyond saying that the Batasan may initiate impeachment by a vote of at least one-fifth of all its
members and that no official shall be convicted without the concurrence of at least two-thirds of all
the members thereof, the Constitution says no more." The Batasan pursuant to its power to adopt
rules of its proceedings (Article VIII, Sec. 8[31, may adopt, as it did adopt, necessary rules of
procedure to govern impeachment proceedings. The rules it adopted providing for dismissal of a
complaint for impeachment which is not sufficient in form or substance, or when sufficient grounds
for impeachment do not exist, or probable cause has not been established, or requiring a majority
vote of all members of the Batasan for the approval of the resolution setting forth the Articles of
Impeachment, are not inconsistent with the provision of Section 3 of Article XIII of the 1973
Constitution.

More specifically, the provision requiring concurrence of at least two-thirds votes of all members of
the Batasan for conviction is not violated by any provision of the Rules which authorizes dismissal of
a petition by a majority vote of the Batasan since with such number of votes it is obvious that the
two-thirds vote of all members necessary for conviction can no longer be obtained. Such being the
case, the Batasan can specify in its rules how and when the impeachment proceedings can be
terminated or dismissed for Section 3, Article XIII merely provides for how a judgment of conviction
can be sustained but is respondent on how a complaint for impeachment can be dismissed when it
becomes apparent that a judgment of conviction by the required number of votes is not possible.

Neither is the Constitutional provision to the effect that impeachment may be initiated by a vote of at
least one-fifth of the members violated by the provision of the Rules authorizing the Committee on
Justice, Human Rights and Good Government to dismiss the complaint for impeachment which it
finds not sufficient in form and substance (Sec. 4), does not have sufficient grounds for
impeachment (Sec. 5), or where probable cause has not been established (Sec. 6). All of said
actions of the Committee refer to the disposition of a complaint for impeachment initiated by at least
one-fifth of all the members of the Batasan. Their purpose is to determine whether or not a complaint
for impeachment initiated by the required number of members of the Batasan warrants being
referred to the Batasan for trial. They are not properly part of the "initiation phase" of the
impeachment proceeding but of the "trial phase", or more accurately the "preparatory to trial" phase.
Such actions are liken to actions taken by this Court in determining whether a petition duly filed
should be given due course or should be dismissed outright.

While the Batasan has assigned to the Committee on Justice, Human Rights and Good Government
the task of determining whether the petition is sufficient in form or substance, or that sufficient
ground for impeachment exist or that probable cause has been established, said Committee is
required to submit its report to the Batasan which has the ultimate decision whether to approve or
disapprove said report. If the Batasan approves the Committee report dismissing the complaint, said
report is noted by the Batasan and sent to the Archives.

That the Rules on Impeachment of the Interim Batasan in the judgment of petitioners is better is no
argument against the validity or constitutionality of the Rules on Impeachment approved by the
Batasan. More importantly, said Rules are always within the power of the Batasan to modify, change
or replace any time. They do not have the force of law but are merely in the nature of by-laws
prescribed for the orderly and convenient conduct of proceedings before the Batasan. They are
merely procedural and not substantive (43 C.J. 527). They may be waived or disregarded by the
Batasan and with their observance the Courts have no concern. (South Georgia Power Co. vs.
Baumann 169 Ga. 649; 151 SE 513). As the Court said in State vs. Alt, 26 Mo. A. 673, quoted in 46
C.J. 1383 Note 31:

The rules of public deliberative bodies, whether codified in the form of a 'manual and formally
adopted by the body, or whether consisting of a body of unwritten customs or usages, preserved in
memory and by tradition are matters of which the judicial courts, as a general rule, take no
cognizance. It is a principle of the common law of England that the judicial courts have no
conusance of what is termed the lex et consuetudo parliamentary And, although this doctrine is not
acceded to, in this country, to the extent to which it has gone in England, where the judicial courts
have held that they possess no jurisdiction to judge of the powers of the House of Parliament, yet no
authority is cited to us, and we do not believe that respectable judicial authority exists, for the
proposition that the judicial courts have power to compel legislative, or quasi-legislative bodies to
proceed in the conduct of their deliberations, or in the exercise of their powers, in accordance with
their own rules If the Congress of the United States disregards the constitution of the United States,
or, if the legislature of one of the states disregards the constitution of the state, or of the United
States, the power resides in the judicial courts to declare its enactments void. If an inferior quasi-
legislative body, such as the council of a municipal corporation, disregards its own organic law, that
is, the charter of the corporation, the judicial courts, for equal if not for stronger reasons, the same
power of annulling its ordinances. But we are not aware of any judicial authority, or of any legal
principle, which will authorize the judicial courts to annul an act of the legislature, or an ordinance of
a municipal council merely because the one or the other was enacted in disregard of the rules which
the legislature, or the municipal council or either house thereof, had prescribed for its own
government.

To the same effect is 67 Corpus Juris Secundun 870, where it was said:

Rules of parliamentary practice are merely procedural and not substantive. The rules of procedure
adopted by deliberative bodies have not the force of a public law, but they are merely in the nature of
by-laws, prescribed for the orderly and convenient conduct of their own proceedings. The rules
adopted by deliberative bodies are subject to revocation, modification, or waiver at the pleasure of
the body adopting them. Where a deliberative body adopts rules of order for its parliamentary
governance, the fact that it violates one of the rules so adopted may not invalidate a measure
passed in compliance with statute. The rules of procedure passed by one legislative body are not
binding on a subsequent legislative body operating within the same jurisdiction, and, where a body
resolves that the rules of a prior body be adopted until a committee reports rules, the prior rules
cease to be in force on the report of the committee. It may be of assistance, in determining the effect
of parliamentary law, to consider the nature of the particular deliberative body.

Finally, in 'The present case, injunction to restrain the enforcement of the particular provisions of the
Rules will not lie (aside from the fact that the question involved is political) because the acts of the
Committee sought to be restrained have already been consummated. They are fait accomplish.
Prohibition or injunction would not issue to restrain acts already performed or consummated.
Remonte us. Banto, 16 SCRA 257; Aragones us. Subido, 25 SCRA 95.

IN VIEW OF THE FOREGOING, judgment is hereby rendered DISMISSING the petition for lack of
merit, without pronouncement as to costs.

SO ORDERED.

Aquino, CJ., Concepcion, Jr., Melencio-Herrera, Plana, Escolin Gutierrez, Jr., De la Fuente, Cuevas
and Alampay, JJ., concur.

Abad Santos, J., I reserve my vote.

Separate Opinions

 
TEEHANKEE, J., concurring:

I reserve my vote. It may be observed, though, that this is one petition that, following the Court's
customary disposition, may well be dismissed for having become moot and academic, in view of the
expiration of the term of the incumbent President upon the holding of the presidential elections
scheduled on February 7, 1986, in which the charges brought in the impeachment resolution and
verified complaint may be duly submitted to the people for their proper consideration and judgment.

Separate Opinions

TEEHANKEE, J., concurring:

I reserve my vote. It may be observed, though, that this is one petition that, following the Court's
customary disposition, may well be dismissed for having become moot and academic, in view of the
expiration of the term of the incumbent President upon the holding of the presidential elections
scheduled on February 7, 1986, in which the charges brought in the impeachment resolution and
verified complaint may be duly submitted to the people for their proper consideration and judgment.

Footnotes

1 Resolution promulgated September 3, 1985.

 G.R. No. 2808           September 30, 1905

FELIX BARCELON, petitioner,
vs.
DAVID J. BAKER, JR., AND JOHN DOE THOMPSON, respondents.

Fisher and Cohn for petitioner.

Attorney-General Wilfley for respondents.

JOHNSON, J.:

This was an application by Fred C. Fisher and Charles C. Cohn, attorneys at law, on behalf of the
plaintiff, Felix Barcelon, for a writ of habeas corpus. The said application alleges, among other
things, the following:

(1) That the said applicant is detained and restrained of his liberty at the town of Batangas, in
the Province of Batangas, Philippine Islands.

(2) That the person who detained and restrained the said applicant of his liberty is John Doe
Thompson, captain of the Philippines Constabulary, acting under and in pursuance of the
orders of David J. Baker, Jr., colonel of the Philippines Constabulary.

(3) That the detention and restraint of the said applicant is wholly without legal authority
therefor. [Here follows a statement of the alleged causes of arrest and detention of the said
applicant by the said defendants.]

(4) That the detention and restraint of the said applicant is not under or by virtue of any
process issued by any court or magistrate, nor by virtue of any judgment or order of any
court of record, nor of any court nor of any magistrate whatsoever.

(5) That there has not existed during any of the times in this petition mentioned, and there
does not now exist, is said Province of Batangas, Philippine islands, nor in any part thereof,
rebellion, insurrection, or invasion, nor any of them, in any form or degree; and that all the
courts of law, organized and provided by law for the Province of Batangas, have been at all
of the times hereinbefore mentioned in the full and complete exercise of their functions,
without interruption of any nature or kind.

Wherefore your petitioners pray that a writ of habeas corpus be issued, requiring the said
John Doe Thompson, captain of the Philippines Constabulary, and David J. Baker, jr.,
colonel of the Philippines Constabulary, to bring before this honorable court the person of the
said Felix Barcelon, and that after a full hearing in accordance with law the said Felix
Barcelon be liberated and released from all restraint and detention, and that respondents be
enjoined from any and all interference with the personal liberty of said Felix Barcelon, and to
pay the costs of this proceeding. (Signed) Fred C. Fisher. Charles C. Cohn. (The foregoing
facts were duly sworn to by the said applicants.)

The court, after considering the foregoing petition, made an order on the 3rd day of August, 1905,
directing the said David J. Baker, Jr., and the said John Doe Thompson to appear before this court
on the 4th day of August, 1905, at 9 o'clock a.m., to show cause why the writ of habeas
corpus should not be granted in accordance with the prayer of said petition.
At 9 o'clock a.m. on the 4th day of August the respondents, by the Attorney-General of the Philippine
Islands, through George R. Harvey, representing the latter, filed their answer to the foregoing
petition. By reason of the fact that the said answer failed to disclose whether or not the said Felix
Barcelon was actually detained and deprived of his liberty by the said respondents, the court
directed that said answer be amended, stating without equivocation whether or not Felix Barcelon
was actually detained by the said respondents, which amended answer, among other things,
contained the following allegations:

(1) That the writ of habeas corpus should not issue on the application filed herein, because
the court is without jurisdiction or authority to grant the privilege of the writ of habeas
corpus in the Province of Batangas, for the reason that on January 31, 1905, the Governor-
General, pursuant to a resolution and request of the Philippine Commission, suspended said
writ in the Provinces of Cavite and Batangas, in accordance with the provisions of section 5
of the act of congress known as "The Philippine Bill," the Philippine Commission and the
Governor-General basing such suspension upon the fact that certain organized bands of
ladrones in said provinces were in open insurrection against the constituted authorities; and
the said bands, or parts of them, and some of their leaders, were still in open resistance to
the constituted authorities. The said resolution of the Commission and the said proclamation
of the Governor-General are in the words following:

"RESOLUTION OF THE PHILIPPINE COMMISSION DATED JANUARY 31, 1905.

"Whereas certain organized bands of ladrones exist in the Provinces of Cavite and Batangas
who are levying forced contributions upon the people, who frequently require them, under
compulsion, to join their bands, and who kill or maim in the most barbarous manner those
who fail to respond to their unlawful demands, and are therefore terrifying the law-abiding
and inoffensive people of those provinces; and

"Whereas these bands have in several instances attacked police and Constabulary
detachments, and are in open insurrection against the constituted authorities; and

"Whereas it is believed that these bands have numerous agents and confederates living
within the municipalities of the said provinces; and

"Whereas, because of the foregoing conditions, there exists a state of insecurity and
terrorism among the people which makes it impossible in the ordinary way to conduct
preliminary investigations before justices of the peace and other judicial officers: Now,
therefore,

"Be it resolved, That, the public safety requiring it, the Governor-General is hereby
authorized and requested to suspend the writ of habeas corpus in the Provinces of Cavite
and Batangas.

EXECUTIVE ORDER            }            "MANILA, January 31, 1905.

NO. 6.           }

"Whereas certain organized bands of ladrones exist in the Provinces of Cavite and Batangas
who are levying forced contributions upon the people, who frequently require them, under
compulsion, to join their bands, and who kill or maim in the most barbarous manner those
who fail to respond to their unlawful demands, and are therefore terrifying the law-abiding
and inoffensive people of those provinces; and
 "Whereas these bands have in several instances attacked police and Constabulary
detachments, and are in open insurrection against the constituted authorities, and it is
believed that the said bands have numerous agents and confederates living within the
municipalities of the said provinces; and

"Whereas, because of the foregoing conditions there exists a state of insecurity and
terrorism among the people which makes it impossible in the ordinary way to conduct
preliminary investigations before the justices of the peace and other judicial officers:

"In the interest of public safety, it is hereby ordered that the writ of habeas corpus is from this
date suspended in the Provinces of Cavite and Batangas.

"(Signed) LUKE E. WRIGHT,

"Governor-General."

(2) Not waiving the question of jurisdiction, the respondents state that it is true that Felix
Barcelon was detained in the month of April, 1905, by order of Colonel David J. Baker, Jr.,
assistant chief of the Philippines constabulary, and that the said Barcelon is now detained
under the surveillance of Captain W.E. Thompson, senior inspector of Constabulary, in the
province of Batangas.

By this answer the respondents admit that they are detaining the body of the said Felix Barcelon,
and deny the right of this court to inquire into the reasons therefor by virtue of the said resolution of
the Philippine commission and the executive order of the Governor-General, issued by authority of
the same, suspending the privilege of the writ of habeas corpus in the said Provinces of Cavite and
Batangas.

Thus the question is squarely presented whether or not the judicial department of the Government
may investigate the facts upon which the legislative and executive branches of the Government
acted in providing for the suspension and in actually suspending the privilege of the writ of habeas
corpus in said provinces. has the Governor-General, with the consent of the Commission, the right to
suspend the privilege of the writ of habeas corpus? If so, did the Governor-General suspend the writ
of habeas corpus in the Provinces of Cavite and Batangas in accordance with such authority?

A paragraph of section 5 of the act of Congress of July 1, 1902, provides:

That the privilege of the writ of habeas corpus shall not be suspended, unless when in cases
of rebellion, insurrection, or invasion the public safety may require it, in either of which events
the same may be suspended by the President, or by the Governor-General with the approval
of the Philippine Commission, whenever during such period the necessity for such
suspension shall exist.

This provision of the act of Congress is the only provision giving the
Governor-General and the Philippine commission authority to suspend the privilege of the writ
of habeas corpus. No question has been raised with reference to the authority of Congress to confer
this authority upon the President or the Governor-General of these Islands, with the approval of the
Philippine Commission.

This provision of the act of Congress makes two conditions necessary in order that the President or
the Governor-General with the approval of the Philippine Commission may suspend the privilege of
the write of habeas corpus. They are as follows:
(1) When there exists rebellion, insurrection, or invasion; and

(2) When public safety may require it.

In other words, in order that the privilege of the writ of habeas corpus may be suspended, there must
exist rebellion, insurrection, or invasion, and the public safety must require it. This fact is admitted,
but the question is, Who shall determine whether there exists a state of rebellion, insurrection, or
invasion, and that by reason thereof the public safety requires the suspension of the privilege of the
write of habeas corpus?

It has been argued and admitted that the Governor-General, with the approval of the Philippine
Commission, has discretion, when insurrection, rebellion, or invasion actually exist, to decide
whether the public safety requires the suspension of the privilege of the writ of habeas corpus; but
the fact whether insurrection, rebellion, or invasion does actually exist is an open question, which the
judicial department of the Government may inquire into and that the conclusions of the legislative
and executive departments (the Philippine Commission and the Governor-General) of the
government are not conclusive upon that question.

In other words, it is contended that the judicial department of the Government may consider an
application for the writ of habeas corpus, even though the privileges of the same have been
suspended, in the manner provided by law, for the purposes of taking proof upon the question
whether there actually exists a state of insurrection, rebellion, or invasion.

The applicants here admit that if a state of rebellion, insurrection, or invasion exists, and the public
safety is in danger, then the President, or Governor-General with the approval of the Philippine
Commission, may suspend the privilege of the writ of habeas corpus.

Inasmuch as the President, or Governor-General with the approval of the Philippine commission,
can suspend the privilege of the writ of habeas corpus only under the conditions mentioned in the
said statute, it becomes their duty to make an investigation of the existing conditions in the
Archipelago, or any part thereof, to ascertain whether there actually exists a state of rebellion,
insurrection, or invasion, and that the public safety requires the suspension of the privilege of the writ
of habeas corpus. When this investigation is concluded, the President, or the Governor-General with
the consent of the Philippine commission, declares that there exist these conditions, and that the
public safety requires the suspension of the privilege of the writ of habeas corpus, can the judicial
department of the Government investigate the same facts and declare that no such conditions exist?

The act of Congress, above quoted, wisely provides for the investigation by two departments of the
Government — the legislative and executive — of the existing conditions, and joint action by the two
before the privilege of the writ of habeas corpus can be suspended in these Islands.

If the investigation and findings of the President, or the Governor-General with the approval of the
Philippine Commission, are not conclusive and final as against the judicial department of the
Government, then every officer whose duty it is to maintain order and protect the lives and property
of the people may refuse to act, and apply to the judicial department of the Government for another
investigation and conclusion concerning the same conditions, to the end that they may be protected
against civil actions resulting from illegal acts.

Owing to conditions at times, a state of insurrection, rebellion, or invasion may arise suddenly and
may jeopardize the very existence of the State. Suppose, for example, that one of the thickly
populated Governments situated near this Archipelago, anxious to extend its power and territory,
should suddenly decide to invade these Islands, and should, without warning, appear in one of the
remote harbors with a powerful fleet and at once begin to land troops. The governor or military
commander of the particular district or province notifies the Governor-General by telegraph of this
landing of troops and that the people of the district are in collusion with such invasion. Might not the
Governor-General and the Commission accept this telegram as sufficient evidence and proof of the
facts communicated and at once take steps, even to the extent of suspending the privilege of the writ
of habeas corpus, as might appear to them to be necessary to repel such invasion? It seems that all
men interested in the maintenance and stability of the Government would answer this question in the
affirmative.

But suppose some one, who has been arrested in the district upon the ground that his detention
would assist in restoring order and in repelling the invasion, applies for the writ of habeas corpus,
alleging that no invasion actually exists; may the judicial department of the Government call the
officers actually engaged in the field before it and away from their posts of duty for the purpose of
explaining and furnishing proof to it concerning the existence or nonexistence of the facts proclaimed
to exist by the legislative and executive branches of the State? If so, then the courts may effectually
tie the hands of the executive, whose special duty it is to enforce the laws and maintain order, until
the invaders have actually accomplished their purpose. the interpretation contended for here by the
applicants, so pregnant with detrimental results, could not have been intended by the Congress of
the United States when it enacted the law.

It is the duty of the legislative branch of the Government to make such laws and regulations as will
effectually conserve peace and good order and protect the lives and property of the citizens of the
State. It is the duty of the Governor-General to take such steps as he deems wise and necessary for
the purpose of enforcing such laws. Every delay and hindrance and obstacle which prevents a strict
enforcement of laws under the conditions mentioned necessarily tend to jeopardize public interests
and the safety of the whole people. If the judicial department of the Government, or any officer in the
Government, has a right to contest the orders of the President or of the Governor-General under the
conditions above supposed, before complying with such orders, then the hands of the President or
the Governor-General may be tied until the very object of the rebels or insurrectos or invaders has
been accomplished. But it is urged that the president, or the Governor-General with the approval of
the Philippine Commission, might be mistaken as to the actual conditions; that the legislative
department — the Philippine
Commission — might, by resolution, declare after investigation, that a state of rebellion, insurrection,
or invasion exists, and that the public safety requires the suspension of the privilege of the writ
of habeas corpus, when, as a matter of fact, no such conditions actually existed; that the President,
or Governor-General acting upon the authority of the Philippine commission, might by proclamation
suspend the privilege of the writ of habeas corpus without there actually existing the conditions
mentioned in the act of Congress. In other words, the applicants allege in their argument in support
of their application for the writ of habeas corpus, that the legislative and executive branches of the
Government might reach a wrong conclusion from their investigations of the actual conditions, or
might, through a desire to oppress and harass the people, declare that a state of rebellion,
insurrection, or invasion existed and that public safety required the suspension of the privilege of the
writ of habeas corpus when actually and in fact no such conditions did exist. We can not assume
that the legislative and executive branches will act or take any action based upon such motives.

Moreover it can not be assumed that the legislative and executive branches of the Government, with
all the machinery which those branches have at their command for examining into the conditions in
any part of the Archipelago, will fail to obtain all existing information concerning actual conditions. It
is the duty of the executive branch of the Government to constantly inform the legislative branch of
the Government of the condition of the Union as to the prevalence of peace or disorder. The
executive branch of the government, through its numerous branches of the civil and military, ramifies
every portion of the Archipelago, and is enabled thereby to obtain information from every quarter and
corner of the State. Can the judicial department of the Government, with its very limited machinery
for the purpose of investigating general conditions, be any more sure of ascertaining the true
conditions throughout the Archipelago, or in any particular district, than the other branches of the
Government? We think not.

We are of the opinion that the only question which this department of the Government can go into
with reference to the particular questions submitted here are as follows:

(1) Admitting the fact that Congress had authority to confer upon the President or the Governor-
General and the Philippine Commission authority to suspend the privilege of the writ of habeas
corpus, was such authority actually conferred? and

(2) Did the Governor-General and the Philippine Commission, acting under such authority, act in
conformance with such authority?

If we find that Congress did confer such authority and that the Governor-General and the Philippine
Commission acted in conformance with such authority, then this branch of the Government is
excluded from an investigation of the facts upon which the Governor-General and the Philippine
Commission acted, and upon which they based the resolution of January 31, 1905, and the
executive order of the Governor-General of the same date. Under the form of government
established in the Philippine Islands, one department of the Government has no power or authority
to inquire into the acts of another, which acts are performed within the discretion of the other
department.

Upon an examination of the law we conclude:

First. That the paragraph of section 5, above quoted, of the act of Congress of July 1, 1902, confers
upon the Governor-General and the Philippine Commission the right to suspend the privilege of the
writ of habeas corpus under the conditions therein named.

Second. That the Philippine Commission, acting within the discretion which such act of Congress
confers upon them, did authorize the Governor-General, by its resolution of January 31, 1905, to
suspend the privilege of the writ of habeas corpus in the manner and form indicated in the said
executive order of the Governor-General of January 31, 1905.

The said resolution of the Philippine Commission has the effect of law for the purposes for which it
was enacted. The judicial department of the Government may examine every law enacted by the
legislative branch of the Government for the purpose of ascertaining:

(a) Whether or not such law came within the subject-matter upon which the legislative branch of the
Government might legislate; and

(b) Whether the provisions of such law were in harmony with the authority given the legislature.

If the judicial branch of the Government finds —

(a) That the legislative branch of the Government had authority to legislate upon the particular
subject; and

(b) That the particular law contained no provisions in excess of such department, then that
investigation, or that conclusion, conclusively terminates the investigation by this department of the
Government.
We base our conclusions that this application should be denied upon the following facts:

First. Congress had authority to provide that the President, or the Governor-General, with the
approval of the Philippine Commission, might suspend the privilege of the writ of habeas corpus in
cases of rebellion, insurrection, or invasion, when the public safety might require it.

Second. That the Philippine Commission, acting within this power, had authority to pass the
resolution above quoted, of January 31, 1905, after an investigation of the conditions.

Third. That by virtue of said act of Congress, together with said resolution of the Philippine
commission, the Governor-General had authority to issue the said executive order of January 31,
1905, suspending the privilege of the writ of habeas corpus.

Fourth. That the conclusion set forth in the said resolution and the said executive order, as to the
fact that there existed in the Provinces of Cavite and Batangas open insurrection against the
constituted authorities, was a conclusion entirely within the discretion of the legislative and executive
branches of the Government, after an investigation of the facts.

Fifth. That one branch of the United States Government in the Philippine Islands has no right to
interfere or inquire into, for the purpose of nullifying the same, the discretionary acts of another
independent department of the Government.

Sixth. Whenever a statute gives to a person or a department of the Government discretionary power,
to be exercised by him or it, upon his or its opinion of certain facts, such statute constitutes him or it
the sole and exclusive judge of the existence of those facts.

Seventh. The act of Congress gave to the President, or the Governor-General with the approval of
the Philippine Commission, the sole power to decide whether a state of rebellion, insurrection, or
invasion existed in the Philippine Archipelago, and whether or not the public safety required the
suspension of the privilege of the writ of habeas corpus.

Eighth. This power having been given and exercised in the manner above indicated, we hold that
such authority is exclusively vested in the legislative and executive branches of the Government and
their decision is final and conclusive upon this department of the Government and upon all persons.

Happily we are not without high authority to support the foregoing conclusions. This is not the first
time this same question has been presented in one form or another to the judicial department of the
Government of the United States, as well as to the Government of the various States of the Union.

The same general question presented here was presented to the Supreme Court of the United
States in the case of Martin vs. Mott, in January, 1827. An act of Congress of 1795 provided —

That whenever the United States shall be invaded or be in imminent danger of invasion from
any foreign nation or Indian tribe, it shall be lawful for the President of the United States to
call forth such number of the militia of the State or States most convenient to the place of
danger or scene of action, as he may judge necessary to repel such invasion, and to issue
his orders for that purpose to such officer or officers of the militia as he shall think proper.

In this case (Martin vs. Mott) the question was presented to the court whether or not the President's
action in calling out the militia was conclusive against the courts. The Supreme Court of the United
States, in answering this question, said:
 The power thus confided by Congress to the President is, doubtless, of a very high and
delicate nature. A free people are naturally jealous of the exercise of military power; and the
power to call the militia into actual service is certainly felt to be one of no ordinary magnitude.
But it is not a power which can be executed without corresponding responsibility. It is, in its
terms, a limited power, confined to cases of actual invasion, or of imminent danger of
invasion. If it be a limited power, the question arises, By whom is the exigency to be
adjudged of and decided? is the President the sole and exclusive judge whether the
exigency has arisen, or is it to be considered as an open question, upon which every officer
to whom the orders of the President are addressed, may decide for himself, and equally
open to be contested by every militiaman who shall refuse to obey the orders of the
President? We are all of the opinion that the authority to decide whether the exigency has
arisen belongs exclusively to the President and his decision is conclusive upon all other
persons. We think that this construction necessarily results from the nature of the power itself
and from the manifest object contemplated by the act of Congress. The power itself is to be
exercised upon sudden emergencies, upon great occasions of state and under
circumstances which may be vital to the existence of the Union. ... If a superior officer has a
right to contest the orders of the President, upon his own doubts as to the exigency having
arisen, it must be equally the right of every inferior officer and soldier ... . Such a course
would be subversive of all discipline and expose the best disposed officer to the chances of
erroneous litigation. Besides, in many instances, the evidence upon which the President
might decide that there is imminent danger of invasion might be of a nature not constituting
strict technical proof, or the disclosure of the evidence might reveal important secrets of state
which the public interest and even safety might imperiously demand to be kept in
concealment.

Whenever the statute gives a discretionary power to any person, to be exercised by him
upon his own opinion of certain facts, it is a sound rule of construction that the statute
constitutes him the sole and exclusive judge of the existence of those facts. And in the
present case we are all of opinion that such is the true construction of the act of 1795. It is no
answer that such power may be abused, for there is no power which is not susceptible of
abuse. (Martin vs. Mott, 12 Wheat., 19 (25 U.S.); Vanderheyden vs. Young, 11 Johns., N.Y.,
150.)

Justice Joseph Story, for many years a member of the Supreme Court of the United States, in
discussing the question who may suspend the privilege of the writ of habeas corpus, under the
Constitution of the United States, said:

It would seem, as the power is given to Congress to suspend the writ of habeas corpus in
cases of rebellion, insurrection, or invasion, that the right to judge whether the exigency has
arisen must conclusively belong to that body. (Story on the Constitution, 5th ed., sec. 1342.)

Justice James Kent, for many years a justice of the supreme court of the State of New York, in
discussing the same question, cites the case of Martin vs. Mott, and says:

In that case it was decided and settled by the Supreme Court of the United States that it
belonged exclusively to the President to judge when the exigency arises in which he had
authority, under the Constitution, to call forth the militia, and that his decision was conclusive
upon all other persons. (Kent's Commentaries, 14th ed., vol. 1, bottom p. 323.)

John Randolph Tucker, for many years a professor of constitutional and international law in
Washington and Lee University, in discussing this question said:
 By an act passed in 1795 Congress gave to the President power to call out the militia for
certain purposes, and by subsequent acts, in 1807, power was given to him to be exercised
whenever he should deem it necessary, for the purposes stated in the Constitution; and the
Supreme Court (United States) has decided that this executive discretion in making the call
(for State militia) could not be judicially questioned. (Tucker on the Constitution, Vol. II, p.
581.)

John Norton Pomeroy, an eminent law writer upon constitutional questions, said:

In Martin vs. Mott it was decided that under the authority given to the President by the statute
of 1795, calling forth the militia under certain circumstances, the power is exclusively vested
in him to determine whether those circumstances exist; and when he has determined by
issuing his call, no court can question his decision." (Pomeroy's Constitutional Law, sec.
476.)

Henry Campbell Black, a well-known writer on the Constitution, says:

By an early act of Congress it was provided that in case of an insurrection in any State
against the government thereof, it shall be lawful for the President of the United States, on
application of the legislature of such State, or of the executive (when the legislature can not
be convened), to call forth such a number of the militia of any other State or States as may
be applied for, as he may judge sufficient to suppress such insurrection. By this act the
power of deciding whether the exigency has arisen upon which the Government of the
United States is bound to interfere is given to the President. (Black's Constitutional Law, p.
102.)

Judge Thomas M. Cooley, in discussing the right of the judicial department of the Government to
interfere with the discretionary action of the other departments of the Government, in his work on
constitutional law, said:

Congress may confer upon the President the power to call them (the militia) forth, and this
makes him the exclusive judge whether the exigency has arisen for the exercise of the
authority and renders one who refuses to obey the call liable to punishment under military
law. (Cooley's Principles of Constitutional Law, p. 100.)

But it may be argued by those who contend for the contrary doctrine, to wit, that the acts of the
Governor-General, with the approval of the Philippine Commission, are not conclusive upon the
courts and that none of the foregoing citations are exactly in point, that none of these cases or
authors treat of a case exactly like the one presented. We are fortunate, however, in being able to
cite, in answer to that contention, the case of Henry William Boyle, where exactly the same question
was presented to the supreme court of the State of Idaho, which the applicants present here and
where the courts held the doctrine of the cases applied. In the case of Boyle, he had been arrested
after the privilege of the writ of habeas corpus had been suspended. He applied for a writ of habeas
corpus to the supreme court of Idaho, alleging, among other things, in his application:

First. That "no insurrection, riot, or rebellion now exists in Shoshone County;" and

Second. That "the Governor has no authority to proclaim martial law or suspend the writ of habeas
corpus."

In reply to this contention on the part of the applicant, Boyle, the court said:
 Counsel have argued ably and ingeniously upon the question as to whether the authority to
suspend the writ of habeas corpus rests with the legislative and executive powers of the
Government, but, from our views of this case, that question cuts no figure. We are of the
opinion that whenever, for the purpose of putting down insurrection or rebellion, the
exigencies of the case demand it, with the successful accomplishment of this end in view, it
is entirely competent for the executive or for the military officer in command, if there be such,
either to suspend the writ or disregard it if issued. The statutes of this State (Idaho) make it
the duty of the governor, whenever such a state or condition exists as the proclamation of
the governor shows does exist in Shoshone County, to proclaim such locality in a state of
insurrection and to call in the aid of the military of the State or of the Federal Government to
suppress such insurrection and reestablish permanently the ascendency of the law. It would
be an absurdity to say that the action of the executive, under such circumstance, may be
negatived and set at naught by the judiciary, or that the action of the executive may be
interfered with or impugned by the judiciary. If the courts are to be made a sanctuary, a seat
of refuge whereunto malefactors may fall for protection from punishment justly due for the
commission of crime they will soon cease to be that palladium of the rights of the citizen so
ably described by counsel.

On application for a writ of habeas corpus, the truth of recitals of alleged facts in a
proclamation issued by the governor proclaiming a certain county to be in a state of
insurrection and rebellion will not be inquired into or reviewed. The action of the governor in
declaring Shoshone County to be in state of insurrection and rebellion, and his action in
calling to his aid the military forces of the United States for the purpose of restoring good
order and the supremacy of the law, has the effect to put in force, to a limited extent, martial
law in said county. Such action is not in violation of the Constitution, but in harmony with it,
being necessary for the preservation of government. In such case the Government may, like
an individual acting in self-defense, take those steps necessary to preserve its existence. If
hundreds of men can assemble themselves and destroy property and kill and injure citizens,
thus defeating the ends of government, and the Government is unable to take all lawful and
necessary steps to restore law and maintain order, the State will then be impotent if not
entirely destroyed, and anarchy placed in its stead.

It having been demonstrated to the satisfaction of the governor, after some six or seven
years of experience, that the execution of the laws in Shoshone County through the ordinary
and established means and methods was rendered practicably impossible, it became his
duty to adopt the means prescribed by the statute for establishing in said county the
supremacy of the law and insuring the punishment of those by whose unlawful and criminal
acts such a condition of things has been brought about; and it is not the province of the
courts to interfere, delay, or place obstructions in the path of duty prescribed by law for the
executive, but rather to render him all the aid and assistance in their power, in his efforts to
bring about the consummation most devoutly prayed for by every good, law-abiding citizen in
the State. (In re Boyle, 45 L.R.A., 1899, 832.)

The doctrine that whenever the Constitution or a statute gives a discretionary power to any person,
to be exercised by him upon his own opinion of certain facts, such person is to be considered the
sole and exclusive judge of the existence of those facts, has been recognized, not only by the
Supreme Court of the United States but by practically all of the supreme courts of the different
States, and has never been disputed by any respectable authority. The following cases are cited in
support of this doctrine:

Martin vs. Mott (1827), 12 Wheat., 19 (25 U. S. Rep.).

Luther vs. Borden (1849), 7 How., 44, 77.
 Wilkes vs. Dinsman (1849), 7 How., 130, 131.
Murray vs. Hoboken, etc., Co. (1855), 18 How., 280.
United States vs. Speed (1868), 8 Wall., 83.
Mullan vs. United States (1890), 140 U.S., 245.
Nishimura Ekiu vs. United States (1891), 142 U.S., 660.
Lem Moon Sing vs. United States (1894), 158 U.S., 538.
Ex parte Field (1862), 5 Blatch., 77, 81 (Fed. Case No. 4761).
Allen vs. Blunt, 3 Story, 745 (Fed. Case No. 216).
Gould vs. Hammond, 1 McAll., 237, 239 (Fed. Case 5638).
United States vs. Packages (1862), 27 Fed. Case, 288, 289.
United States vs. Cement (1862), 27 Fed. Case, 293.
United States vs. Cotton (1872), 27 Fed. Case, 325, 328.
United States vs. Tropic Wind, 28 Fed. Case, 221.
In re Day, 27 Fed. Rep., 680.
Hammer vs. Mason, 24 Ala., 485.
People vs. Pacheco (1865), 27 Cal., 223.
Porter vs. Haight (1873), 45 Cal., 639.
Evansville and C. Ry. Co. vs Evansville, 15 Ind., 421.
Koehler vs. Hill, 60 Ia., 566.
People vs. Wayne (1878), 39 Mich., 20.
State vs. Town of Lime (1877), 23 Minn., 526.
People vs. Parker, 3 Nebraska, 432.
Kneedler vs. Lane (1863), 45 Penn. St., 292.
In re Legislative Adjournment (1893), 18 Rhode Island, 834; 22 L.R.A., 716.
Chapin vs. Ferry (1891), 3 Washington, 396; 28 Pac. Rep., 758; 15 L.R.A., 120.
Druecker vs. Solomon, 21 Wis., 621; 94 Am. Dec., 571.
People vs. Bissell (1857), 19 Ill., 229, 232, 233.
Sutherland vs. Governor (1874) 29 Mich., 320, 330.
Ambler vs. Auditor-General (1878), 38 Mich., 746, 751.
State vs. Warmoth (1870), 22 La. An. Rep., 1; 13 Am. Rep., 126.
Jonesboro, etc., Co. vs. Brown (1875), 8 Baxter (Tenn.) 490; 35 Am. Rep., 713.

In the case of the United States vs. Packages, above cited, the court, in discussing the authority of
the judicial department of the Government to interfere with the discretionary powers of the executive
and legislative, said:

The doctrine involved has been fully discussed in several cases decided by this court during the last
fifteen months, and was virtually settled long ago by the United States Supreme Court. The judiciary,
under the Constitution, can not declare war or make peace. It is clothed with no such power, and can
not be clothed with it. Whatever power is vested by the Constitution in one department of the
Government can not be usurped by another. If one should wholly refuse to act, or should undertake
to divest itself, or abdicate its legitimate functions, it would by no means follow that another
department, expressly limited to specific duties, would thereby acquire ungranted powers. The
abdication of executive functions by the executive, for instance, would not constitute the judicial the
executive department of the country; nor would a failure or refusal of the legislative to pass needed
statutes constitute the executive the law-making power. Each department has its true boundaries
prescribed by the Constitution, and it can not travel beyond them. (United States vs. Ferreira (1851),
13 How., 40; Little vs. Barreme (1804), 2 Cranch, 170.)

The condition of peace or war, public or civil, in a legal sense, must be determined by the
political department, not the judicial. The latter is bound by the decision thus made. The act
of 1795 and the act of July 13, 1861, vests the President with the power to determine when
insurrection exists, and to what extent it exists. The United States Constitution vests
 Congress with the power "to provide for calling forth the militia to execute the laws of the
Union, to suppress insurrection, and repel invasion; to declare war ... and make rules
concerning captures on land and water." In the execution of that power, Congress passed
the act cited above.

By the act of 1795 the Supreme Court says: "The power of deciding whether the exigency
had arisen upon which the Government of the United States is bound to interfere, is given to
the President." ... After the President has acted, is a circuit court of the United States
authorized to inquire whether his decision was right? could the court, while the parties were
actually contending in arms for the possession of the government, call witnesses before it
and inquire which party represented a majority of the people? ... If the judicial power extends
so far, the guaranty contained in the Constitution of the United States is a guaranty of
anarchy, and not of order. yet if this right does not reside in the courts when the conflict is
raging; if the judicial power is at that time bound to follow the decision of the political
(department of the Government), it must be equally bound when the contest is over. At all
events, it (the power to decide) is conferred upon him (the President) by the Constitution and
laws of the United States, and must therefore be respected and enforced in its judicial
tribunals. (Luther vs. Borden (1849), 7 How., 43, 44; Martin vs. Mott (1827), 12 Wheat., 29-
31.)

The same doctrine has been uniformly maintained from the commencement of the Government. The
absurdity of any other rule is manifest. If during the actual clash of arms the courts were rightfully
hearing evidence as to the fact of war, and, either with or without the said juries, determining the
question, they should have power to enforce their decisions. In case of foreign conflicts neither
belligerent would be likely to yield to the decision; and, in case of insurrection, the insurgents would
not cease their rebellion in obedience to a judicial decree. In short, the status of the country as to
peace or war is legally determined by the political (department of the Government) and not by the
judicial department. When the decision is made the courts are concluded thereby, and bound to
apply the legal rules which belong to that condition. The same power which determines the
existence of war or insurrection must also decide when hostilities have ceased — that is, when
peace is restored. In a legal sense the state of war or peace is not a question in pais for courts to
determine. It is a legal fact, ascertainable only from the decision of the political department. (The
Fortuna (1818), 3 Wheat., 236; United States vs. Palmer (1818), 3 Wheat., 610; Nuestra Señora,
etc. (1819), 4 Wheat., 497; Santissima Trinidad (1822), 7 Wheat., 283; Rose vs. Himely (1806), 4
Cranch, 241; Foster vs. Neilson (1829), 2 Peters, 253.)

Under the act of Congress of July 13, 1861, the President of the United States, on the 16th day of
August, 1861, proclaimed that the State of Tennessee was in a state of insurrection. The courts, in
discussing the right of the President to decide upon the necessities of such proclamation and the
period within which it should continue, said:

The legal status thus determined must remain so long as the condition of hostilities
continues. He (the President) has never made a counter proclamation, nor has peace been
officially announced. As a legal condition that status (of insurrection) is independent of actual
daily strife in arms. A legal condition of hostilities may exist long after the last battle has been
fought between the opposing armies. That condition (of insurrection or rebellion) ceases
when peace is concluded through competent authority; not before. ... Within any construction
which could be very well given to the President's proclamation, no part of that State
(Tennessee) maintains as yet a loyal adhesion to the Union and Constitution. It is the duty of
the President, however, to decide that point. Until he declares to the contrary, the court must
hold that the legal condition of hostility continues. The exceptions in the proclamation, so far
as made by the President, courts can and must enforce. But if it be correct that by the terms
 of that proclamation the President intended to devolve on the courts the duty of determining
judicially the status of a State or part of a State by an inquiry into its loyalty, or its occupation
from time to time by the United States forces irrespective of a decision thereon by the
executive, still courts could not then acquire the power. The limits upon their constitutional
and legal functions could not thus be enlarged. Political power could not be so delegated to
the courts. They (the courts) can not be charged with any duties not judicial; "judicial power"
alone is invested in them (the courts) under the Constitution. (United States vs. Packages
(1862), 27 Fed. Case, 288, 289.)"

In the case of Druecker vs. Solomon (21 Wis., 621; 94 Am. Dec., 571, 576, 577) the supreme court
of Wisconsin, in an action for false imprisonment for the arrest and detention during a state of
insurrection, etc., the court cites and approves of the doctrine laid down by the Supreme Court of the
United States in the case of Martin vs. Mott (12 Wheat., 19) and holds that the action of the political
department of the Government in such cases is final and conclusive against the judicial department.

John Marshall, for many years Chief Justice of the Supreme Court of the United States, in
discussing the rights of one department of the Government to interfere with the discretionary powers
of another, said, in the case of Marbury vs. Madison ( [1803], 1 Cranch, 137, 164):

By the Constitution of the United States the President is invested with certain important
political powers, in the exercise of which he has to use his own discretion, and is
accountable only to his country in his political character, and to his own conscience. ... The
subjects are political; they respect the nation, not individual rights, and, being intrusted to the
executive, the decision of the executive is conclusive. The application of this remark will be
received by adverting to the act of congress for establishing the department of foreign affairs.
This officer, as his duties were prescribed by that act, is to conform precisely to the will of the
President; he is the mere organ by whom that will is communicated. The acts of such an
officer, as an officer, can never be examinable by the courts. ... The conclusion from this
reasoning is that where the heads of departments are the political or confidential agents of
the executive, merely to execute the will of the President or rather to act in cases in which
the executive possesses a constitutional or a legal discretion, nothing can be more perfectly
clear than that their acts are only politically examinable.

In the case of Rice vs. Austin (19 Minn., 103) the supreme court of Minnesota held that "the judicial
and executive departments of the government are distinct and independent and neither is
responsible to the other for the performance of its duties and neither can enforce the performance of
the duties of the other." It may be said that in Minnesota this decision was based upon a
constitutional provision. This is true, but the fact that the people of the State of Minnesota, by
constitutional provision prohibited one independent department of the government from interfering or
attempting to administer the duties of another, all the more reenforces the doctrine contended for
here. Many of the States do permit the judicial department by mandamus to direct the executive
department to perform purely ministerial duties. In Minnesota, however, the judicial department will
not attempt to coerce the performance of even ministerial duties on the part of the executive.

In the case of Luther vs. Borden (7 How., 44) it was held that the decision and determination of
matters of a purely political character by the executive or legislative department of the Government
was binding on every other department of the Government and could not be questioned by a judicial
tribunal. The dangers and difficulties which would grow out of the adoption of a contrary rule are by
Chief Justice Taney in this case clearly and ably pointed out. Chief Justice Taney, referring to the
power given to the President with reference to the right to decide whether it was necessary, on
account of a possible invasion, to call out the militia, said:
 By this act (act of Congress of 1795) the power of deciding whether the exigency had arisen
upon which the Government of the United States is bound to interfere is given to the
President. ... After the President has acted and called out the militia, is a circuit court of the
United States authorized to inquire whether his decision is right? Could the court, while the
parties were actually contending in arms for the possession of the government, call
witnesses before it and inquire which party represented the majority of the people? If it could,
then it would become the duty of the court (provided it came to the conclusion that the
President had decided incorrectly) to discharge those who were arrested or detained by the
troops in the service of the United States or the government which the President was
endeavoring to maintain. If the judicial power extends so far, the guaranty contained in the
Constitution of the United States is a guaranty of anarchy and not of order. Yet if this right
does not reside in the court when the conflict is raging, if the judicial power is at that time
bound to follow the decision of the political, it must be equally bound when the contest is
over. . . .

It is said that this power in the President is dangerous to liberty and may be abused. All
power may be abused if placed in unworthy hands; but it would be difficult, we think, to point
out any other hands in which this power would be more safe, and at the same time equally
effectual. When citizens of the same State are in arms against each other, and the
constituted authorities unable to execute the laws, the interposition of the United States must
be prompt or it is of little value. The ordinary course of proceedings in the courts of justice
would be utterly unfit for the crisis, and the elevated office of the President, chosen as he is
by the people of the United States, and the high responsibility he could not fail to feel when
acting in a case of so much moment, appear to furnish as strong safeguards against the
willful abuse of power as human prudence and foresight could well provide. At all events it is
conferred upon him by the Constitution and laws of the United States and must, therefore,
be respected and enforced in its judicial tribunals.

Chief Justice Taney here cites approvingly the case of Martin vs. Mott.

In the case of Franklin vs. State Board Examiners (23 Cal., 173, 178) the supreme court of California
decided —

That the political department of a State government is the sole judge of the existence of war
or insurrection, and, when it declares either of these emergencies to exist, its action is not
subject to review or liable to be controlled by the judicial department of the State.

In this case the court cited the cases of Martin vs. Mott and Luther vs. Borden.

This same doctrine was again recognized by the supreme court of California in the case of the
People vs. Pacheco (27 Cal., 175, 223), not only resting its decision upon the case of Franklin vs.
State Board of Examiners but also again cited and confirmed the case of Martin vs. Mott, Luther vs.
Borden, and Vanderheyden vs. Young (11 Johns (N.Y.), 159).

Chief Justice Marshall, in the case of McCullough vs. State of Maryland (4 Wheat, 316), says:

We think the sound construction of the Constitution must allow the national legislature that
discretion with respect to the means by which the powers it confers are carried into execution
which will enable that body to perform the high duties assigned to it in the manner most
beneficial to the people. ... Such being the case, the determination of these questions by the
political department of the Government must also necessarily be conclusive.
Chief Justice Taney, in the case of ex parte Merryman, 17 Federal Cases, 144 (Fed. Case No.
9487), said, in speaking of the power of the courts:

It is true that in the case mentioned Congress is of necessity the judge of whether the public
safety does or does not require it (the suspension of the writ of habeas corpus), and their
judgment is conclusive.

Chief Justice Taney, in the same decision, quotes the following language of Mr. Justice Story
approvingly:

It would seem as the power is given to Congress to suspend the writ of habeas corpus in
cases of rebellion or invasion, that the right to judge whether the exigency had arisen must
exclusively belong to that body.

In the case of McCall vs. McDowell, 15 Fed. Cases, 1235 (Fed. Case No. 8673), Judge Deady said:

When the occasion arises — rebellion or invasion — whether the "public service" requires
the suspension of the writ or not is confided to the judgment of Congress, and their action in
the premises is conclusive upon all courts and persons. . . .

The suspension enables the executive, without interference from the courts or the law, to
arrest and imprison persons against whom no legal crime can be proved, but who may,
nevertheless, be effectively engaged in forming the rebellion or inviting the invasion, to the
imminent danger of the public safety.

In the case of Ex parte Field (5 Blatchford, 63) this same question arose in the State of Vermont, and
the supreme court of that State, relying upon the decision of Mr. Justice Story in Luther vs. Borden
and that of Chief Justice Taney in Martin vs. Mott, decided that the President is the exclusive judge
of the existence of the exigency authorizing him to call forth the militia and declare martial law, in
pursuance of the power conferred on him by the act of Congress of 1795.

Judge Emmons, in the case of United States vs. 1,500 Bales of Cotton (Fed. Case No. 15958), in
discussing this general question, said, quoting from a decision of Chief Justice Chase:

The belligerent relation having once been recognized by the political power, all the people of
each State or district in insurrection must be regarded as enemies until, by the action of
the legislature and executive, that relation is thoroughly and permanently changed. . . .

The statute devolved upon the President the political duty of determining whether armed
force should be called out to put down insurrection in the States. It was for him to decide
when the exigency occurred. The courts had no concern with it. ... Whether there was any
necessity for the exercise of the power of the President to call out the militia the court could
not determine. His decision was final ... If the judicial power were thus extended, the
guaranty in the Constitution of a republican form of government was a guaranty of anarchy,
not of order. Equally incongruous results would follow if the courts instead of the
Government, were to decide when hostilities are ended and when trade and intercourse
should be resumed.

Not only has it been decided in numerous cases that the power to call out the militia and to suspend
the writ of habeas corpus is entirely within the discretion of the legislative and executive branches of
the Government, but, when the executive and legislative departments have decided that the
conditions exist justifying these acts, the court will presume that such conditions continue to exist
until the same authority (legislative, etc.) has decided that such conditions no longer exist.

Judge Dillon, in the case of Philips vs. Hatch (Fed. Case No. 11094, said:

From the nature of the question, from the fair implication of the act of July 13, 1862 (an act
authorizing the suspension of the writ of habeas corpus), from the confusion that would
ensue from any other rule, it is the opinion of the court that the rebellion must be considered
as in existence until the President declared it at an end in a proclamation.

Judge Emmons, in the above case, discussing this same question, said:

These unquestioned doctrines have not been extemporized for the modern and exceptional
exigencies of the late rebellion. They belong to the jurisprudence of all countries and were
adopted as part of that of our own from its earliest history. Our most conservative judges,
Marshall, Story, and Taney, have been foremost in announcing them. No citizen would
challenge the justness and necessity of this rule. Judges have their peculiar duties which, if
faithfully and learned studied, have little tendency to make them familiar with current and
rapidly changing conditions upon which depend the important political question of whether it
is safe to relax, on the instant, military rule and restore intercourse and trade.

The following cases are also cited:

Brown vs. Hiatt, Fed. Case No. 2011.

United States vs. 100 Barrels of Cement, Fed. Case No. 15945.
Gelston vs. Hoyt, 3 Wheat., 246.
The Divina Pastora, 4 Wheat., 52.
The Santissima Trinidad, 7 Wheat., 283.
Rose vs. Himely, 4 Cranch, 241.
Garcia vs. Lee, 12 Peters, 511.
Stewart vs. Kahn, 11 Wallace, 493.
Mrs. Alexander's Cotton, 2 Wallace, 404.

For a general discussion, see Sixth American Law Register, 766; 4 Chicago Legal News, 245.

No Government, past or present, has more carefully and watchfully guarded and protected, by law,
the individual rights of life and property of its citizens than the Government of the United States and
of the various States of the Union. Each of the three departments of the Government has had
separate and distinct functions to perform in this great labor. The history of the United States,
covering more than a century and a quarter, discloses the fact that each department has performed
its part well. No one department of the Government can or ever has claimed, within its discretionary
power, a greater zeal than the others in its desire to promote the welfare of the individual citizen.
They are all joined together in their respective spheres, harmoniously working to maintain good
government, peace, and order, to the end that the rights of each citizen be equally protected. No one
department can claim that it has a monopoly of these benign purposes of the Government. Each
department has an exclusive field within which it can perform its part, within certain discretionary
limits. No other department can claim a right to enter these discretionary limits and assume to act
there. No presumption of an abuse of these discretionary powers by one department will be
considered or entertained by another. Such conduct on the part of one department, instead of
tending to conserve the Government and the right of the people, would directly tend to destroy the
confidence of the people in the Government and to undermine the very foundations of the
Government itself.
For all of the foregoing reasons, the application for the writ of habeas corpus should be denied, and
it is so ordered.

Arellano, C.J., Mapa, and Carson, JJ., concur.

Separate Opinions

TORRES, J., concurring in part:

After considering the provisions of the Philippine bill of July 1, 1902, contained in paragraph 7,
section 5 of said act, I have concluded to concur in the grounds upon which the majority decision of
this case is based, and agree that the petition for a writ of habeas corpus should be denied. By virtue
of the decree of the 31st of January of this year the writ was suspended in the Provinces of Cavite
and Batangas. The Governor-General, with the approval of the Commission, had the exclusive
power and jurisdiction to suspend the writ, when in their opinion public safety should so require, in
cases of rebellion and invasion only.

The fact that the writ has been suspended can not, however, be used as a pretext for the
commission of crimes defined and punished in the Penal Code now in force in these islands. The
application of said code has not been suspended in said provinces.

Article 200 of the Penal Code now in force provides:

The public official who, unless it be by reason of a crime, should detain a person without
being duly authorized to do so by law or by regulations of a general character in force in the
Philippines, shall incur the penalty, etc.

Rules 27, 28, 30, and 34 of the provisional law for the application of the Penal Code in the Philippine
Islands give greater force to the above-quoted section of said code. It provides that no person shall
be deprived of his liberty, except by reason of the commission of some crime.

These provisions, although based upon different fundamental principles, are, nevertheless, in perfect
harmony with the provisions of section 5, subdivisions 1 and 3 of the said act of July 1, 1902, in that
they provide that no law shall be promulgated in these Islands that will deprive persons of their life,
liberty, or property without due process of law, and that no person shall be held to answer for the
commission of a crime except by due process of law.

Felix Barcelon has been detained for a long time in the town of Lipa, Province of Batangas, not for
the commission of any crime and by due process of law, but apparently for the purpose of protecting
him. This detention, unless it is shown that some good reason exists therefor, is absolutely illegal,
notwithstanding the factor that the writ of habeas corpus has been suspended in the Province of
Batangas.

The honorable Governor-General, with the approval of the Philippine Commission, decided, upon his
own responsibility, that a state of rebellion existed in the Provinces of Cavite and Batangas, and by
virtue of his authority suspended the writ of habeas corpus for the purpose of reestablishing peace,
insuring public safety, and facilitating the prosecution and repression of rebels.
The writ was suspended with a view to averting the commission of crimes, particularly those
affecting public peace, by depriving criminals of the privilege of the writ.

It would not be lawful, however, to violate the provisions of the Penal Code under the pretext that the
writ has been suspended. It would not be lawful to rob or commit any other trespass upon the
person, rights or property of citizens. The detention of Felix Barcelon is not due to the commission of
any crime. It is an actual trespass upon his liberty and personal safety, committed by the police
authorities, which under no circumstances can be excused or justified by the temporary suspension
of the writ of habeas corpus.

The fundamental laws of Spain, a monarchy, the spirit and principles of which are the basis of our
Penal Code, and the provisional law for its application, do not contain any provision in regard to the
privilege of habeas corpus, but they contain provisions which guarantee to the citizen his individual
rights. The supreme court of Spain has held that now even where constitutional guaranties are
suspended can the executive authority order that a person be detained, except for crime or for
breach of the public peace. (Judgment of the 15th of March, 1877.)

Barcelon, the petitioner in this case, is neither a rebel nor a criminal; therefore his detention is illegal.

For the foregoing reasons I am of the opinion that the petition for habeas corpus should be denied,
and that criminal proceedings should be instituted for the crime of illegal detention, defined and
punished in article 200 of the Penal Code, and that it is the duty of the judge of the Court of First
Instance of the Province of Batangas to proceed against those responsible for said crime.

WILLARD, J., dissenting:

The question in the case is this: Have the Governor-General and the Commission power to suspend
the writ of habeas corpus when no insurrection in fact exists? If tomorrow they should suspend the
writ in Manila, would that suspension be recognized by the courts?

That in such a case they ought not to suspend the writ and that where no insurrection in fact exists
they would have no right to do so, are propositions which have no bearing upon the case. The
question is, Have they the power to do it?

Prior to the passage of the act of Congress of July 1, 1902, the Commission had that power. They
could suspend the writ, take it away entirely from certain provinces, or repeal entirely the law which
authorized it to be issued. They had absolute control over it. (In re Calloway, 1 Phil. Rep., 11.)

By the decision of the majority in this case the Governor-General and the Commission still have that
power. The effect of this decision is to give them the same power which the Commission exercised
before the passage of the act of Congress of July 1, 1902. In other words, that part of the act which
relates to the writ of habeas corpus has produced no effect. It is repealed by this decision, and
Congress accomplished nothing by inserting it in the law. No construction which repeals it should be
given to this article. If a given construction leads to that result it seems to me that it must be certain
that the construction is wrong. No other argument to prove that it is wrong is needed. Congress must
have intended that this provision should produce some effect. To hold that it has produced no effect
is to defeat such intention.
But it is said that by the terms of the act, while the Governor-General and the Commissioners have
the power to suspend the writ, they should not do it except in cases where insurrection in fact exists,
and they, being men of character and integrity, would not do it except in such cases. As the
Government is at present constituted, this is undoubtedly true. This argument, however, is fully
answered by what was said by the Supreme Court of the United States in the case of Ex
parte Milligan (4 Wallace 2, 125):

This nation, as experience has proved, can not always remain at peace, and has no right to
expect that it will always have wise and humane rulers, sincerely attached to the principles of
the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law;
may fill the place once occupied by Washington and Lincoln.

With the exception of one case decided by the supreme court of Idaho, no authorities are presented
involving directly the construction of the provision of the Constitution of the United States relating to
the suspension of the writ of habeas corpus, which provision is substantially the same as the one
embodied in the act of Congress of July 1, 1902.

That the judicial power has no authority to interfere with the executive power in the discharge of the
duties imposed upon the latter by law is a proposition that no one denies. The question, however, in
this case is, Has the law conferred upon the executive the power to decide conclusively whether a
state of insurrection exists or not?

In the case of Martin vs. Mott (12 Wheat., 19, 28) the court said that the construction which it gave to
the act of Congress authorizing the President to call out the militia "necessarily results from the
nature of the power itself, and from the manifest object contemplated by the act of Congress" — that
is to say, in determining what the words of the law meant they relied almost entirely upon the nature
of the power given by the law, and the object contemplated by it. Those are the things which should
be considered in determining what construction is to be given to the provisions relating to habeas
corpus. The power given by an act of Congress to the President, who under the Constitution is the
commander in chief of the militia when called into the service of the United States, to call such men
into military service upon a sudden emergency, is in my opinion distinctly different from the power
given by the Constitution to Congress to suspend the writ of habeas corpus so as to prevent a
person already in custody from having the cause of his detention inquired into by a court of justice.
The reasons which would lead a court to say that the former power had been unreservedly intrusted
to the President should not, I think, be considered as controlling, when the extent of the latter power
is under discussion.

The effect of the suspension of the writ of habeas corpus, and as it seems to me its manifest
purpose, is to allow the Government to commit an illegal act. It allows it to imprison a person who
has committed no offense, and for whose arrest and detention no warrant has been issued by any
competent court, and it leaves that person without redress at the time for this unlawful act. In the
case at bar it appears from the return of the respondents that Barcelon is deprived of his liberty
without due process of law in violation of a provision of this same act of Congress.

The privilege of the writ of habeas corpus was given to protect the citizen from such arbitrary and
illegal acts of either the executive or the legislative power; the latter, that department which,
according to Madison in No. 47 of The Federalist, "is everywhere extending the sphere of its activity
and drawing all power into its impetuous vortex."

Is it probable that the people, in adopting the Constitution, intended to give up to these departments
of the Government against which they needed protection perhaps the most important right which
could furnish that protection?
I do not think that the authors of the Constitution or the authors of the act of Congress intended to so
place this right in the hands of these two departments that whether it should or should not be
enjoyed by the citizens would depend exclusively upon their will and pleasure.

For the reasons above stated, I dissent from the opinion of the court.
 G.R. No. L-4221             August 30, 1952

MARCELO D. MONTENEGRO, petitioner-appellant,
vs.
GEN. MARIANO CASTAÑEDA, and COLONEL EULOGIO BALAO, respondents-appellees.

Felixberto M. Serrano and Honorio Ilagan for appellant.

Office of the Solicitor General Pompeyo Diaz and Solicitor Felix V. Makasiar for appellees.

BENGZON, J.:

The purpose of this appeal from the Court of First Instance of Quezon City is to test the validity of
Proclamation No. 210 suspending the privilege of the writ of habeas corpus.

A few months ago the same proclamation came up for discussion in connection with the request for
bail of some prisoners charged with rebellion. 1 The divided opinion of this Court did not squarely
pass on the validity of the proclamation; but, assuming it was obligatory, both sides proceeds to
determine its effect upon the right of which prisoners to go on bail.

This decision will now consider the points debated regarding the aforesaid residential order.

The facts are few and simple: About five o'clock in the morning of October 18, 1950, Maximino
Montenegro was arrested with others at the Samanillo Bldg. Manila, by agents of the Military
Intelligence Service of the Armed Forces of the Philippines, for complicity with a communistic
organization in the commission of acts of rebellion, insurrection or sedition. So far as the record
discloses, he is still under arrest in the custody by respondents. On October 22, 1950, The President
issued Proclamation No. 210 suspending the privilege of the writ of habeas corpus. On October 21,
1950, Maximino's father, the petitioner, submitted this application for a writ of habeas corpus seeking
the release of his son.

Opposing the writ, respondents admitted having the body of Maximino, but questioned judicial
authority to go further in the matter, invoking the above-mentioned proclamation.

Petitioner replied that such proclamation was void, and that, anyway, it did not apply to his son, who
had been arrested before its promulgation. Heeding the suspension order, the court of first instance
denied the release prayed for. Hence this appeal, founded mainly on the petitioner's propositions:.

(a) The proclamation is unconstitutional "because it partakes of bill of attainder, or an ex post
facto law; and unlawfully includes sedition which under the Constitution is not a ground for
suspension";

(b) Supposing the proclamation is valid, no prima facie.

(c) "There is no state of invasion, insurrection or rebellion, or imminent danger thereof," the only
situations permitting discontinuance of the writ of habeas corpus; showing was made that the
petitioner's son was included within the terms thereof.

Proclamation No. 210 reads partly as follows:

WHEREAS, lawless elements of the country have committed overt acts of sedition,
insurrection and rebellion for the purpose of overthrowing the duly constituted authorities and
 in pursuance thereof, have created a state of lawlessness and disorder affecting public
safety and the security of the state;

WHEREAS, these acts of sedition, insurrection, and rebellion consisting of armed raids,
sorties, and ambushes and the wanton acts of murder, rape, spoilage, looting, arson,
planned destruction of public and private buildings, and attacks against police and
constabulary detachments, as well as against civilian lives and properties as reported by the
Commanding General of the Armed Forces, have seriously endangered and still continue to
endanger the public safety;

WHEREAS, these acts of sedition, insurrection and rebellion have been perpetrated by
various groups well organized for concerted actions and well armed with machine guns,
rifles, pistols and other automatic weapons, by reason whereof there is actual danger of
rebellion which may extend throughout the country;

Whereas, 100 leading members of these lawless elements have been apprehended and the
presently under detentions, and strong and convincing evidence has been found in their
possession to show that they are engaged in the rebellious, seditious and otherwise
subversive acts as above set forth; and

Whereas, public safety requires that immediate and effective action be taken to insure the
peace and security of the population and to maintain the authority of the government;

NOW, THEREFORE, I, ELPIDIO QUIRINO, President of the Philippines, by virtue of the

powers vested upon me by article VII, section 10, paragraph (2) of the Constitution, do
hereby suspend the privilege of the writ of habeas corpus for the persons presently detained,
as well as all others who may be hereafter similarly detained for the crimes of sedition,
insurrection or rebellion, and or on the occasion thereof, or incident thereto, or in connection
therewith.

A. It is first argued that the proclamation is invalid because it "partakes" of a bill of attainder or an ex
post facto law, and violates the constitutional percept that no bill of attainder or ex post facto law
shall be passed. The argument is devoid of merit. The prohibition applies only to statutes. U.S. vs.
Gen. El., 80 Fed. Supp. 989; De Pass vs. Bidwell, 24 Fed., 615. 2 A bill of attainder is a legislative act
which inflicts punishment without judicial trial. (16 C.J.S. p. 902; U.S. vs. Lovett (1946) 328 U.S.
303). Anyway, if, as we find, the stay of the writ was ordered in accordance with the powers
expressly vested in the President by the Constitution, such order must be deemed an exception to
the general prohibition against ex post facto laws and bills of attainder — supposing there is a
conflict between the prohibition and the suspension.

On the other hand there is no doubt it was erroneous to include those accused of sedition among the
persons as to whom suspension of the writ is decreed. Under the Constitution the only grounds for
suspension of the privilege of the writ are "invasion, insurrection, rebellion or imminent danger
thereof." Obviously, however, the inclusion of sedition does not invalidate the entire proclamation;
and it is immaterial in this case, inasmuch as the petitioner's descendant is confined in jail not only
for sedition, but for the graver offense of rebellion and insurrection. Without doing violence to the
presidential directive, but in obedience to the supreme law of the land, the word "sedition" in
Proclamation No. 210 should be deemed a mistake or surplusage that does not taint the decree as a
whole.

B. In his second proposition appellant insists there is no state of invasion, insurrection, rebellion or
imminent danger thereof. "There are" he admits "intermittent sorties and lightning attacks by
organized bands in different places"; but, he argues, "such sorties are occasional, localized and
transitory. And the proclamation speaks no more than of overt of insurrection and rebellion, not of
cases of invasion, insurrection or rebellion or imminent danger thereof." On this subject it is noted
that the President concluded from the facts recited in the proclamation, and the other connected
therewith, that "there is actual danger rebellion which may extend throughout the country." Such
official declaration implying much more than imminent danger of rebellion amply justifies the
suspension of the writ.

To the petitioner's unpracticed eye the repeated encounters between dissident elements and military
troops may seem sporadic, isolated, or casual. But the officers charged with the Nation's security,
analyzed the extent and pattern of such violent clashes and arrived at the conclusion that they are
warp and woof of a general scheme to overthrow his government vi et armis, by force and arms.

And we agree with the Solicitor General that in the light of the views of the United States Supreme
Court thru, Marshall, Taney and Story quoted with approval in Barcelon vs. Baker (5 Phil., 87, pp. 98
and 100) the authority to decide whenever the exigency has arisen requiring the suspension belongs
to the President and "his decision is final and conclusive" upon the courts and upon all other
persons.

Indeed as Justice Johnston said in that decision, whereas the Executive branch of the Government
is enabled thru its civil and military branches to obtain information about peace and order from every
quarter and corner of the nation, the judicial department, with its very limited machinery can not be in
better position to ascertain or evaluate the conditions prevailing in the Archipelago.

But even supposing the President's appraisal of the situation is merely prima facie, we see that
petitioner in this litigation has failed to overcome the presumption of correctness which the judiciary
accords to acts of the Executive and Legislative Departments of our Government.

C. The petitioner's last contention is that the respondents failed to establish that this son is included
within the terms of the proclamation.

On this topic, respondents' return officially informed the court that Maximino had been arrested and
was under custody for complicity in the commission of acts of rebellion, insurrection and sedition
against the Republic of the Philippines. Not having traversed that allegation in time, petitioner must
be deemed to have conceded it.

. . . In the absence of a denial, or appropriate pleading avoiding their effect, averment of

facts in the return will be taken as true and conclusive, regardless of the allegations
contained in the petition; and the only question for determination is whether or not the facts
stated in the return, as a matter of law, authorizes the restraint under investigation. (39
C.J.S., 664-655.)

D. An interesting issue is posed by amici curiae. The Bill of Rights prohibits suspension of the
privilege of the writ of habeas corpus except when the public safety requires it, in cases of (1)
invasion (2) insurrection or (3) rebellion.

Article VII Section 10 authorizes the President to suspend the privilege, when public safety requires
it, in cases of (1) invasion (2) insurrection or (3) rebellion or (4) imminent danger thereof.

"Imminent danger," is no cause for suspension under the Bill of Rights. It is under Article VII. To
complicate matters, during the debates of the Constitutional Convention on the Bill of Rights,
particularly the suspension of the writ, the Convention voted down an amendment adding a fourth
cause of suspension: imminent danger of invasion, insurrection of rebellion.

Professor Aruego a member of the Convention, describes the incident as follows:

During the debates on the first draft, Delegate Francisco proposed as an amendment
inserting, as a fourth cause for the suspension of the writ of habeas corpus imminent danger
of the three causes included herein. When submitted to a vote for the first time, the
amendment was carried.

After this motion for a reconsideration of the amendment was approved, Delegate Orense
spoke against the amendment alleging that it would be dangerous to make imminent danger
a ground for the suspension of the writ of habeas corpus. In part, he said:

"Gentlemen, this phrase is too ambigous, and in the hands of a President who believes
himself more or less a dictator, it is extremely dangerous, it would be a sword with which he
would behead us.".

In defense of the amendment, Delegate Francisco pointed out that it was intended to make
this part of the bill of rights conform to that part of the draft giving the President the power to
suspend the writ of habeas corpus also in the case of an imminent danger of invasion or
rebellion. When asked by Delegate Rafols if the phrase, imminent danger, might not be
struck out from this corresponding provisions under the executive power instead, Delegate
Francisco answered:

"Outright, it is possible to eliminate the phrase, imminent danger thereof, in the page I have
mentioned. But I say, going to the essence of referring exclusively to the necessity of
including the words, of imminent danger of one or the other, I wish to say the following: that it
should not be necessary that there exists a rebellion, insurrection or invasion in order
that habeas corpus may be suspended. It should be sufficient that there exists not a danger
but an imminent danger, and the word, imminent, should be maintained. When there exists
an imminent danger, the State requires for its protection and for that of all the citizens the
suspension of habeas corpus."

When put to vote for the second time, the amendment was defeated with 72 votes against
and 56 votes in favor of the same. (I Aruego's Framing of the Philippine Constitution, pp.
180-181)

Nevertheless when the President's specific powers under Article VII, were taken up there was no
objection to his authority to suspend in case of "imminent danger". (At least we are not informed of
any debate thereon.) Now then, what is the effect of the seeming discrepancy?

Is the prohibition of suspension in the bill of rights to be interpreted as limiting Legislative powers
only — not executive measures under section VII? Has article VII (sec. 10) pro tanto modified the
bill of rights in the same manner that a subsequent section of a statue modifies a previous one?

The difference between the two constitutional provisions would seem to be: whereas the bill of
rights impliedly denies suspension in case of imminent dangers of invasion etc., article VII sec.
10 expressly authorizes the President to suspend when there is imminent danger of invasion etc.
The following statements in a footnote in Cooley's Constitutional limitations (8th Ed.) p. 129, appear
to be persuasive:

It is a general rule in the construction of writings, that, a general intent appearing, it shall
control the particular intent; but this rule must sometimes give way, and effect must be given
to a particular intent plainly expressed in one part of a constitution, though apparently
opposed to a general intent deduced from other parts. Warren V. Shuman, 5 Tex. 441. In
Quick V. Whitewater Township, 7 Ind. 570, it was said that if two provisions of a written
constitutions are irreconcilably repugnant, that which is last in order of time and in local
position is to be preferred. In Gulf, C. & S. F. Ry. Co. v. Rambolt, 67 tex. 654, 4 S.W. 356,
this rule was recognized as a last resort, but if the last provision is more comprehensive and
specific, it was held that it should be given effect on that ground.

And in Hoag vs. Washington Oregon Corp. (1915) 147 Pac. Rep., 756 at p. 763 it was said:

It is a familiar rule of construction that, where two provisions of a written Constitution are
repugnant to each other, that which is last in order of time and in local position is to be
preferred. Quick v. White Water Township, 7 Ind., 570; G., C. & S.F. Ry. Co. v. Rambolt, 67
Tex. 654, 4 S.W. 356. So, even assuming the two clauses discuss are repugnant, the latter
must prevail.

Wherefore in the light of this precedents, the constitutional authority of the President to suspend in
case of imminent danger of invasion, insurrection or rebellion under article VII may not correctly be
placed in doubt.

E. The petitioner insisted in the court below that the suspension should not apply to his son, because
the latter had been arrested and had filed the petition before the Executive proclamation. On this
phase of the controversy, it is our opinion that the order of suspension affects the power of the
court's and operates immediately on all petitions therein pending at the time of its promulgation.

A proclamation of the President suspending the writ of habeas corpus was held valid and
efficient in law to suspend all proceedings pending upon habeas corpus, which was issued
and served prior to the date of the proclamation. Matter of Dunn, D.C. N.Y. 1863, 25 How.
Prac. 467, 8 Fed. Cas. 4,171.

F. Premises considered, the decision of the court a quo refusing to release the prisoner is affirmed,
without costs.

Paras, C.J., Pablo, Padilla, Montemayor, Bautista Angelo and Labrador, JJ., concur
 G.R. No. L-61388 April 20, 1983

IN THE ISSUANCE OF THE WRIT OF HABEAS CORPUS FOR DR. AURORA PARONG,
NORBERTO PORTUGUESE, SABINO PADILLA, FRANCIS DIVINAGRACIA, IMELDA DE LOS
SANTOS, BENJAMIN PINEDA, ZENAIDA MALLARI, MARIANO SORIANO, TITO TANGUILIG,
LETTY BALLOGAN, BIENVENIDA GARCIA, EUFRONIO ORTIZ. JR., JUANITO GRANADA and
TOM VASQUEZ. JOSEFINA GARCIA-PADILLA, petitioner,
vs.
MINISTER JUAN PONCE ENRILE, GEN, FABIAN C. VER, GEN. FIDEL V. RAMOS, and FIDEL V.
RAMOS, and LT. COL. MIGUEL CORONEL, respondents.

Lorenzo M. Tanada, Jose W. Diokno, Joker P. Arroyo, Efren M Mercado and Alexander Padilla for
petitioner.

The Solicitor General for respondents.

DE CASTRO, J.:

Petition for a writ of habeas corpus and mandamus seeking the following relief:

WHEREFORE, petitioners pray this Honorable Court:

1. To immediately issue a writ of habeas corpus directing respondents to appear and

produce the bodies of Dr. AURORA PARONG, NORBERTO PORTUGUESE,
SABINO PADILLA, FRANCIS DIVINAGRACIA, IMELDA DE LOS SANTOS,
BENJAMIN PINEDA, ZENAIDA MALLARI, MARIANO SORIANO, TITO TANGUILIG,
LETTY BALLOGAN, BIENVENIDA GARCIA, EUFRONIO ORTIZ, JR., JUANITO
GRANADA and TOM VASQUEZ, forthwith before this Honorable Court and to make
due return of the writ therewith;

2. To issue, in addition or in the alternative to the writ of habeas corpus, a writ of

mandamus compelling the respondents to disclose the petitioners' present place of
detention and to order the respondents to allow counsel and relatives to visit and
confer with the petitioners;

3. Pending the determination of the legality of their continued detention, to forthwith

release the detainees on bail upon such terms and conditions as the Court may fix,
and after hearing, to order petitioners' immediate release; and

4. To grant petitioners such other and further relief as may be deemed just and
equitable in the premises.

The records show that nine (9) of the fourteen (14) detainees herein were arrested on July 6, 1982
at about 1:45 p.m. when three (3) teams of the PC/INP of Bayombong, Nueva Viscaya led by Lt. Col.
Coronel, lst Lt. de Guzman and lst Lt. Baria, after securing a Search Warrant No. S-82 issued by
Judge Sofronio Sayo of the Court of First Instance of Nueva Viscaya conducted a raid at the
residence of Dra. Aurora Parong. Apprehended during the said raid were Dra. Aurora Parong,
Benjamin Pineda, Sabino Padilla, Francisco Divinagracia, Zenaida Mallari, Letty Ballogan, Norberto
Portuguese, and Mariano Soriano who were then having a conference in the dining room of Dra.
Parong's residence which had been doing on since 10:00 a.m. of that same day.

The other four (4) detainees herein, namely: Imelda de los Santos, Eufronio Ortiz, Jr., Juanita
Granada, and Bienvenida Garcia, were arrested on the following day, July 7, 1982 by the same PC
teams.

On July 15, 1982, Tom Vasquez was arrested, and his Volkswagen car, bearing Plate No. DAP 347,
was seized by the PC authorities.

The herein fourteen (14) detainees (hereafter referred to sometimes as petitioners) were all detained
at the PC/INP Command Headquarters, Bayombong, Nueva Vizcaya from July 6, 1982 until their
transfer on the morning of August 10, 1982 to an undisclosed place reportedly to Camp Crame,
Quezon City, to Echague, Isabela, and to Tuguegarao, Cagayan.

Hence, this petition for the writ of habeas corpus and mandamus filed by Josefina Garcia-Padilla,
mother of detained petitioner Sabino G. Padilla, Jr. on August 13, 1982. The mandamus aspect of
the instant petition has, however, become moot and academic, and whereabouts of petitioners
having already become known to petitioner Josefina Garcia-Padilla.

It is alleged in the petition that the arrest of petitioners was patently unlawful and illegal since it was
effected without any warrant of arrest; that the PC/INP raiding team which made the arrest were only
armed with a search warrant (No. 3-82) issued by Judge Sofronio G. Sayo of the Court of First
Instance of Nueva Viscaya, and nowhere in said warrant was authority given to make arrests, much
less detention; that the search warrant which authorized respondents to seize "subversive
documents, firearms of assorted calibers, medicine and other subversive paraphernalia" in the
house and clinic of Dra. Aurora Parong was a roving and general warrant and is, therefore, illegal
per se because it does not state specifically the things that are to be seized (Stonehill vs. Diokno, 20
SCRA 383); that no criminal charges have as of yet been filed against any of the detainees; that the
fourteen (14) detainees were initially held at the PC/INP Command in Bayombong, Nueva Viscaya
from July 6 up to August 10, 1982, but were subsequently transferred by helicopter in the morning of
August 10, 1982 to a place or safehouse known only to respondents; that there is no judgment,
decree, decision or order from a court of law which would validate the continued detention of the
petitioner; that while it is true that a purported telegram stating the issuance of a Presidential
Commitment Order (PCO) was shown to the detainees on or about July 11 and 12, 1982, but
counsel and the detainees have not yet been given a copy of such PCO nor notified of its contents,
raising a doubt whether such commitment order has in fact been issued.

It is further alleged that respondents are denying the detainees their constitutional right to counsel,
averring that the detainees were allowed regular visits by counsel and relatives during their period of
detention from July 6 to August 10, 1982 at the PC/INP Command in Bayombong, Nueva Viscaya;
however, when a certain Major Cristobal and Lt. Marcos (alleged to be from the Camp Crame
Intelligence Units) took full control of the investigation, counsels were allowed to visit only on
weekends; that when the detainees were transferred on August 10, 1982 to a place known only to
respondents, the detainees' counsels and relatives were not notified, raising the apprehension that
petitioners' constitutional rights to silence, to counsel and against self- incrimination are being
violated; that counsels have tried to locate if the detainees were taken to Camp Crame or Camp
Bago Bantay but to no avail; that Major Forondo of the PC Command in Nueva Viscaya informed
Mrs. Josefina Padilla that the detainees were transferred to Tuguegarao, Cagayan, others to
Echague, Isabela; that there seems to be a deliberate and concerted effort by respondents to
conceal from counsel and relatives the detainees' place of detention, raising the apprehension that
respondents are using force, violence, threat, intimidation and other means which vitiate free will to
obtain confession and statements from the detainees in violation of their constitutional rights.

In the resolution of this Court en banc dated August 17, 1982, the writ of habeas corpus was issued
and respondents were required to make a return of the writ. Hearing on the petition was set on
August 26, 1982.

In the return to the writ filed on August 23, 1982. respondents, through the Solicitor General, alleged,
to wit:

I. AS TO HABEAS CORPUS

1. The detainees mentioned in the petition, with the exception of Tom Vasquez who
was temporarily released on July 17, 1982, after his arrest on July 15, 1982, are all
being detained by virtue of a Presidential Commitment Order (PCO) issued on July
12, 1982, pursuant to LOI No. 1211 dated March 9, 1982, in relation to Presidential
Proclamation No. 2045 dated January 17, 1981. The said PCO was issued by
President Ferdinand E. Marcos for violation of P.D. No. 885. ...

2. The corresponding charges against the said detainees have been filed in court
and before the Acting Provincial Fiscal of Nueva Viscaya where they are pleading. A
warrant of arrest against detainee Dra. Aurora Parong was issued on August 4,
1982, by the Municipal Court of Bayombong, for illegal possession of firearm and
ammunition. ...

II. AFFIRMATIVE DEFENSE ON HABEAS CORPUS

3. The persons named in the above-mentioned Presidential Commitment Order were

arrested and are being detained for offenses with respect to which under
Proclamation No. 2045, the privilege of the writ of habeas corpus continues to be
suspended, thus:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President/Prime

Minister of the Philippines, by virtue of the powers vested in me by
the Constitution, do hereby revoke Proclamation No. 1081
(Proclaiming a state of Martial Law in the Philippines) and
Proclamation No. 1104 (Declaring the Continuation of Martial Law)
and proclaim the termination of the state of martial law throughout the
Philippines; Provided, that the call to the Armed Forces of the
Philippines to prevent or suppress lawless violence, insurrection,
rebellion and subversion shall continue to be in force and effect; and
Provided that in the two autonomous regions in Mindanao, upon the
request of the residents therein, the suspension of the privilege of the
writ of habeas corpus shag continue; and in all other places the
suspension of the privilege of the writ shall also continue with respect
to persons at present detained as well as others who may hereafter
be similarly detained for the crimes of insurrection or rebellion,
subversion, conspiracy or proposals to commit such crimes, and for
all other crimes and offenses committed by them in furtherance or on
 the occasion thereof, or incident thereto, or in connection
therewith. (Emphasis supplied)

The privilege of the writ of habeas corpus is unavailing as to them. Courts cannot
inquire into the validity and cause of their arrest and detention.

4. The power of the President in an emergency, such as that which necessitated the
continued suspension of the privilege of the writ of habeas corpus, to order the
detention of persons believed engaged in crimes related to national security is
recognized. (Aquino vs. Enrile, 59 SCRA 83; Luneta, et al. vs. Special Military
Commission, No. 1, et al., 102 SCRA 56).

5. In the instant petition, petitioner Josefina Garcia-Padilla does not appear to have
been authorized by the thirteen (13) other detainees to represent them in the case at
bar."

Accordingly, the petition was duly heard on August 26, 1982. After hearing, the Court issued the
following resolution, to wit:

G.R. No. 61388 (In the Matter of the Petition for the Insurance of the Writ of Habeas
Corpus of Dr. Aurora Parong, Norberto Portuguese, Sabino Padilla, Francis
Divinagracia, Imelda de los Santos, Benjamin Pineda, Zenaida Mallari, Mariano
Soriano, Tito Tanguilig, Letty Ballogan, Bienvenida Garcia, Eufronio Ortiz, Jr.,
Juanito Granada and Tom Vasquez; Josefina Garcia-Padilla vs. Minister Juan Ponce
Enrile, Gen. Fabian C. Ver, Gen. Fidel V. Ramos and Lt. Col. Miguel Coronel.)- The
return of the writ of habeas corpus and answer to the prayer for mandamus filed by
the Solicitor General for respondents in compliance with the resolution of August 17,
1982 is NOTED.

At the hearing of this case this morning, former Senator Jose W. Diokno, Attorneys
Alexander A. Padilla and Efren H. Mercado appeared for petitioner. Solicitor General
Estelito P. Mendoza and Assistant Solicitor General Ramon A. Barcelona, appeared
for the respondents. All of the detainees, except Tom Vasquez, who was temporarily
released on July 17, 1982, were present in Court; Dr. Aurora Parong, Norberto
Portuguese, Sabino Padilla, Francis Divinagracia, Imelda de los Santos, Benjamin
Pineda, Zenaida Mallari, Mariano Soriano, Tito Tanguilig, Letty Ballogan, Bienvenida
Garcia, Eufronio Ortiz, Jr. and Juanito Granada. Attorney Alexander A. Padilla
argued for the petitioner. Solicitor General Mendoza argued for the respondents.
Former Senator Diokno argued in the rebuttal. The Court Resolved to require the
Solicitor General to SUBMIT within five (5) days from date the documents relevant to
the issuance of the Presidential Commitment Order. Thereafter, the case shall be
considered SUBMITTED for resolution.

As required, the Solicitor General submitted the documents relevant to the issuance of the
Presidential Commitment Order on August 27, 1982, after which the case was submitted for
resolution.

The fundamental issue here, as in all petitioner for the writ of habeas corpus, is whether or not
petitioners' detention is legal. We have carefully gone over the claims of the parties in their
respective pleadings as well as in the oral argument during the hearing on August 26, 1982, and We
find that petitioners have not been illegally deprived of their constitutional right to liberty, neither in
the manner of their arrest, nor by their continued detention, and that the circumstances attendant in
the herein case do not warrant their release on a writ of habeas corpus.

1. At the time of the arrest of the nine (9) of the fourteen (14) detainees herein on July 6, 1982,
records reveal that they were then having conference in the dining room of Dra. Parong's residence
from 10:00 a.m. of that same day. Prior thereto, all the fourteen (14) detainees were under
surveillance as they were then Identified as members of the Communist Party of the Philippines
(CPP) engaging in subversive activities and using the house of detainee Dra. Aurora Parong in
Bayombong, Nueva Viscaya, as their headquarters. Caught in flagrante delicto, the nine (9)
detainees mentioned scampered towards different directions leaving in top of their conference table
numerous subversive documents, periodicals, pamphlets, books, correspondence, stationaries, and
other papers, including a plan on how they would infiltrate the youth and student sector (code-named
YORK). Also found were one (1) .38 cal. revolver with eight (8) live bullets, nineteen (19) rounds of
ammunition for M16 armalite, eighteen thousand six hundred fifty pesos (P18,650.00) cash believed
to be CPP/NPA funds, assorted medicine packed and ready for distribution, as sizeable quantity of
printing paraphernalia, which were then seized. There is no doubt that circumstances attendant in
the arrest of the herein detainees fall under a situation where arrest is lawful even without a judicial
warrant as specifically provided for under Section 6(a), Rule 113 of the Rules of Court and allowed
under existing jurisprudence on the matter. As provided therein, a peace officer or a private person
may, without a warrant, arrest a person when the person to be arrested has committed or actually
committing, or is about to commit an offense in his presence.

From the facts as above narrated, the claim of the petitioners that they were initially arrested illegally
is, therefore, without basis in law and in fact. The crimes of insurrection or rebellion, subversion,
conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the
furtherance on the occasion thereof, or incident thereto, or in connection therewith under
Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart
from the common offenses, aside from their essentially involving a massive conspiracy of nationwide
magnitude. Clearly then, the arrest of the herein detainees was well within the bounds of the law and
existing jurisprudence in our jurisdiction.

2. The arrest of persons involved in the rebellion whether as its fighting armed elements, or for
committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in
the course of an armed conflict, to quell the rebellion, than for the purpose of immediately
prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual
procedure in the prosecution of offenses which requires the determination by a judge of the
existence of probable cause before the issuance of a judicial warrant of arrest and the granting of
bail if the offense is bailable. Obviously, the absence of a judicial warrant is no legal impediment to
arresting or capturing persons committing overt acts of violence against government forces, or any
other milder acts but equally in pursuance of the rebellious movement. The arrest or capture is thus
impelled by the exigencies of the situation that involves the very survival of society and its
government and duly constituted authorities. If killing and other acts of violence against the rebels
find justification in the exigencies of armed hostilities which is of the essence of waging a rebellion or
insurrection, most assuredly so in case of invasion, merely seizing their persons and detaining them
while any of these contingencies continues cannot be less justified. In the language of Moyer vs.
Peabody,   cited with approval in Aquino, et al. vs. Ponce Enrile,   the President " shall make the
1 2

ordinary use of the soldiers to that end that he may kill persons who resist, and, of course, that he
may use the milder measure of seizing the bodies of those whom he considers to stand in the way of
restoring peace. Such arrests are not necessarily for punishment, but are by way of precaution, to
prevent the exercise of hostile power."
Thus characterized, the arrest and detention of persons ordered by the President through the
issuance of Presidential Commitment Order PCO is merely preventive. "When it comes to a decision
by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield
to what he deems the necessities of the moment. Public danger warrants the substitution of
executive process for judicial process."   What should be underscored is that if the greater violation
3

against life itself such as killing, will not be the subject of judicial inquiry, as it cannot be raised as
transgressing against the due process clause that protects life, liberty and property, lesser violations
against liberty, such as arrest and detention, may not be insisted upon as reviewable by the courts.

3. Transcendentally important, therefore, is the question of whether the issuance of a Presidential

Commitment Order (PCO) has provided the legal basis of the detention of herein detainees following
their arrest for Proclamation No. 2045 covered offenses. This question has to be set at rest promptly
and decisively, if We are to break a seemingly continuous flow of petitions for habeas corpus, as
what had been seen lately of such petitioners being filed in this Court one after the other.

The function of the PCO is to validate, on constitutional ground, the detention of a person for any of
the offenses covered by Proclamation No. 2045 which continues in force the suspension of the
privilege of the writ of habeas corpus, if the arrest has been made initially without any warrant, its
legal effect is to render the writ unavailing as a means of judicially inquiring into the legality of the
detention in view of the suspension of the privilege of the writ. The grant of the power to suspend the
said privilege provides the basis for continuing with perfect legality the detention as long as the
invasion or rebellion has not been repelled or quelled, and the need therefor in the interest of public
safety continues.

The significance of the conferment of this power, constitutionally upon the President as Commander-
in-Chief, is that the exercise thereof is not subject to judicial inquiry, with a view to determining its
legality in the light of the bill of rights guarantee to individual freedom. This must be so because the
suspension of the privilege is a military measure the necessity of which the President alone may
determine as an incident of his grave responsibility as the Commander-in-Chief of the Armed
Forces, of protecting not only public safety but the very life of the State, the government and duly
constituted authorities. This should be clear beyond doubt in the case of "invasion," along which
"rebellion" or "insurrection" is mentioned by the Constitution, which contingency does not present a
legal question on whether there is a violation of the right to personal liberty when any member of the
invading force is captured and detained.

The presidential responsibility is one attended with all urgency when so grave a peril to the life of the
Nation besets the country in times of the aforementioned contingencies. In the discharge of this
awesome and sacred responsibility, the President should be free from interference. The existence of
warlike conditions as are created by invasion, rebellion or insurrection, the direst of all emergencies
that can possibly confront a nation, argues, beyond dispute, against subjecting his actions in this
regard to judicial inquiry or interference from whatever source. If freedom from judicial review is
conceded in the exercise of his peacetime powers as that of appointment and of granting pardon,
denominated as political powers of the President, it should incontestably be more so with his
wartime power, as it were, to adopt any measure in dealing with situations calling for military action
as in case of invasion, rebellion or insurrection.

The suspension of the privilege of the writ of habeas corpus is one such measure. To be effective,
the occasion for its application on specific individuals should be left to the exclusive and sound
judgment of the President, at least while the exigencies of invasion, rebellion or insurrection persist,
and the public safety requires it, a matter, likewise, which should be left for the sole determination of
the President as Commander-in-Chief of the Nation's armed forces. The need for a unified command
in such contingencies is imperative-even axiomatic-as a basic military concept in the art of warfare.
4. From the clear language of the Lansang case,   "the function of Court is merely to check — not to
4

supplant — the Executive, or to ascertain merely whether he has gone beyond the constitutional
limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his
act. " If, however, the constitutional right to bail is granted to the herein petitioners by the court,
through the procedure laid down under Rule 114 of the Rules of court, what inevitably results is the
supplanting of the decision of the President to detain pursuant to Proclamation No. 2045, of persons
who come under its coverage.

The specific mention in the Constitution of rebellion and insurrection along with invasion and
imminent danger thereof, shows that the terms "rebellion and insurrection" are used therein in the
sense of a state or condition of the Nation, not in the concept of a statutory offense. What, therefore,
should determine the legality of imposing what is commonly referred to as "preventive detention"
resulting from the suspension of the privilege of habeas corpus, is the necessity of its adoption as a
measure to suppress or quell the rebellion, or beat off an invasion. The necessity for such measure
as a means of defense for national survival quite clearly transcends in importance and urgency the
claim of those detained to the right to bail to obtain their freedom. To hold otherwise would defeat
the purpose of the constitutional grant of the power to suspend the privilege of the writ of habeas
corpus on the occasions expressly mentioned in the charter. For what indeed could the purpose be
of suspending the privilege of the writ of habeas corpus other than to restrict, at least for the duration
of the emergency of invasion or rebellion, the right to personal liberty, dictated as it is, in the greater
interest of public safety and national security.

So it is that Proclamation No. 2045 mentions not only rebellion or insurrection as coming within the
suspension of the privilege of the writ of habeas corpus, but also other offenses, including
subversion which is not mentioned in the Constitution, committed by reason or on the occasion of
the rebellion, or in connection therewith, or in the furtherance thereof. There need be no alarm over
what libertarian jurists fear as violation of the constitutional right to personal liberty when the
President decrees the suspension of the privilege of habeas corpus. Only those who give cause for it
will be subject to restriction of their liberty, as the necessity therefor arises in the interest of national
defense and survival. The constitutional guarantee of individual freedom is intact in all its plenitude
and sanctity, save only as the Constitution has envisioned the need for its limitation, and only to a
few, in relation to the entire population, as the Constitution itself permits in case of overwhelming
and imperious necessity.

5. Worthy of profound notice and keen appreciation is the fact that the authority to suspend the
privilege of the writ of habeas corpus has been deliberately vested on the President as the
Commander-in-Chief of the armed forces, together with the related power to call out the armed
forces to suppress lawless violence and impose martial law.   The choice could not have been more
5

wise and sound, for no other official may, with equal capability and fitness, be entrusted with the
grave responsibility that goes with the grant of the authority. The legislature was considered in the
alternative upon which to lodge the power, or to share in its exercise, but the distilled wisdom of the
Constitutional Convention finally made its choice for the President alone.

As previously noted, "invasion" which is not a statutorily-defined offense and "imminent danger
thereof" as mentioned in the Constitution indicate that "rebellion and insurrection" are also
mentioned therein not in their concept as statutorily-defined public crimes, but as a state or condition
of extreme emergency resulting from the existence of the aforesaid events. Now, if captured
enemies from the invading force may not be charged with any statutory offense that would provide
the occasion to demand the right to bail, it is obvious that persons engaged in rebellion or
insurrection may not claim the right to be released on bail when similarly captured or arrested during
the continuance of the aforesaid contingency. They may not even claim the right to be charged
immediately in court, as they may rightfully do so, were they being charged with an ordinary or
common offense. This is so because according to legal writers or publicists, the suspension of the
privilege of the writ of habeas corpus "has the sole effect of allowing the executive to defer the trials
of persons charged with certain offenses during the period of emergency."   This clearly means
6

denial of the right to be released on bail on being charged in court with bailable offenses.

The suspension of the privilege of the writ of habeas corpus must, indeed, carry with it the
suspension of the right to bail, if the government's campaign to suppress the rebellion is to be
enhanced and rendered effective. If the right to bail may be demanded during the continuance of the
rebellion, and those arrested, captured and detained in the course thereof will be released, they
would, without the least doubt, rejoin their comrades in the field thereby jeopardizing the success of
government efforts to bring to an end the invasion, rebellion or insurrection.

Realistically, a person engaged in the rebellion does not, upon being arrested or captured, cease to
be as committed to the cause of the movement. Through a grand conspiracy, as is of the essence of
how rebellion is committed, involving a great mass of confederates bound together by a common
goal, he remains in a state of continued participation in the criminal act or design. His heart still
beats with the same emotion for the success of the movement of which he continues to be an ardent
adherent and ally. It is simple logic then to hold that there should be no legal compulsion for a
captured rebel to be charged in court, only to be released on bail, while he is, realistically and
legally, still as much as part and parcel of the movement, continuing as it is, as those still engaged in
carrying on actively to attain their goal of overthrowing the established regime. Hence, it is easy to
perceive how impressed with absolute verity is the opinion expressed by two acknowledged
authorities on Constitutional law in our country, 7 which We quote:

... If the return to the writ shows that the person in custody was apprehended and
detained in areas where the privileges of the writ have been suspended or for the
crimes mentioned in the executive proclamation, the court will suspend further
proceedings in the action.

Impeccable as it is, the opinion could not but find a resonant echo as it did in the recent case
of Buscayno vs. Military Commission;   decided after Proclamation No. 2045 was issued, which in
8

terms clear and categorical, held that the constitutional right to bail is unavailing when the privilege
of the writ of habeas corpus is suspended with respect to certain crimes as enumerated or described
in the abovementioned Proclamation.

It is, likewise, all too well-known that when the rebel forces capture government troopers or kidnap
private individuals, they do not accord to them any of the rights now being demanded by the herein
petitioners, particularly to be set at liberty upon the filing of bail. As a matter of common knowledge,
captives of the rebels or insurgents are not only not given the right to be released, but also denied
trial of any kind. In some instances, they may even be liquidated unceremoniously. What is then
sought by the suspension of the privilege of the writ of habeas corpus is, among others, to put the
government forces on equal fighting terms with the rebels, by authorizing the detention of their own
rebel or dissident captives as the rebellion goes on. In this way, the advantage the rebellion forces
have over those of the government, as when they resort to guerilla tactics with sophisticated
weapons, is, at least, minimized, thereby enhancing the latter's chances of beating their enemy. It
would, therefore, seem to be ignoring realities in the name of misplaced magnanimity and
compassion, and for the sake of humanity, to grant the demand for respect of rights supposedly
guaranteed by the Constitution by those who themselves seek to destroy that very same instrument,
trampling over it already as they are still waging war against the government. This stark actuality
gives added force and substance to the rationale of the suspension of the privilege of the writ of
habeas corpus in case of invasion, insurrection, rebellion, or imminent danger thereof, when public
safety requires it.
6. Invoking the Lansang case,   however, petitioners would ask this Court to review the issuance of
9

the PCO against them, intimating that arbitrariness attended its issuance because, relying on the
evidence supposedly available in the hands of the military, they claim they are not guilty of rebellion.
They also contend that the provisions of LOI No. 1211 have not been complied with.

The Lansang case went no further than to pronounce the suspension of the writ of the privilege of
habeas corpus on August 21, 1971, valid and constitutional, on a finding that there was no
arbitrariness attendant to the suspension. It never intended to suggest that for every individual case
of arrest and detention, the writ of habeas corpus is available, even after the suspension of this
privilege, to question the legality of the arrest and detention on ground of arbitrariness. When a
person is charged in court for an ordinary offense, the law does not authorize the filing of a petition
for habeas corpus based on the ground that there is absolutely no evidence to hold him for trial,
which, in effect, constitutes an allegation of arbitrariness in the filing of the case against him. The law
has afforded him adequate safeguards against arbitrariness, such as the requirement of determining
the existence of a probable cause by the judge before the issuance of the warrant of arrest. The
finding of such probable cause may not be immediately brought for review by this Court in a habeas
corpus proceeding, on the claim of arbitrariness. The matter is to be decided on the basis of the
evidence, and this Court is not the proper forum for the review sought, not being a trier of facts. If
such a procedure were allowed, it would be easy to delay and obstruct the prosecution of an offense
by a resort to a petition for habeas corpus based on arbitrariness, which most accuse, if not all,
would be most inclined, specially when they are out on bail. The petition now before Us is exactly
one of this kind. If granted, the effect is to transfer the jurisdiction of the trial courts in criminal cases
to this Court, which is simply inconceivable. Moreover, arbitrariness, while so easy to allege, is hard
to prove, in the face of the formidable obstacle built up by the presumption of regularity in the
performance of official duty. Unexhilaratingly, this is the revealing experience of this Court in the
Lansang case, where it doubtlessly realized how hardly possible it is to adduce evidence or proof
upon which to show the President having acted with arbitrariness.

7. The last question relates to the legality of the Presidential Commitment Order (PCO) issued by the
President on July 12, 1982, tested by the conformity of its issuance to the procedure laid down under
LOI 1211, petitioners insisting that the LOI limits the authority of the President to cause the arrest
and detention of persons engaged in or charged with, the crimes mentioned in Proclamation No.
2045. They contend that the procedure prescribed in the LOI not having been observed, the PCO
issued thereunder did not validate the initial illegal arrest of the herein petitioners as wen as their
continued detention.

It must be noted that LOI No. 1211, which provides the guidelines in the arrest and detention of
persons engaged in, or charged with, the crimes mentioned in Proclamation No. 2045, charged with,
the crimes mentioned contemplates of three situations when an arrest can be made, to wit:

1. The arrest and detention effected by virtue of a warrant issued by a judge;

2. The arrest and detention effected by a military commander or the head of a law
enforcement agency after it is determined that the person or persons to be arrested
would probably escape or commit further acts which would endanger public order
and safety. After the arrest, however, the case shall be immediately referred to the
city or provincial fiscal or to the municipal, city, circuit, or district judge for preliminary
examination or investigation who, if the evidence warrants, shall file the
corresponding charges and, thereafter, we a warrant of arrest;
 3. The military commander or the head of the law enforcement agency may apply to
the President thru the Minister of National Defense, for a Presidential Commitment
Order under the following circumstances:

(a) When resort to judicial process is not possible or expedient

without endangering public order and safety; or

(b) When the release on bail of the person or persons already under
arrest by virtue of a judicial warrant would endanger said public order
and safety.

Petitioners appear to place entire reliance on paragraphs 1 and 2 of LOI No. 1211, ignoring
paragraph 3 of LOI No. 1211, which provides:

3. The above notwithstanding, the military commander or the head of the law
enforcement agency may apply to the President thru the Minister of National
Defense, for a Presidential Commitment Order covering the person or persons
believed to be participants in the commission of the crimes referred to in paragraph 1
under the following circumstances:

(a) When resort to judicial process is not possible or expedient

without endangering public order and safety; or

(b) When the release on bail of the person or persons already under
arrest by virtue of a judicial warrant would endanger said public order
and safety.

The reliance of petitioners on paragraphs 1 and 2 of LOI 1211 as to the alleged necessity of judicial
warrant before a person may be arrested and detained is not well-founded. Neither is the contention
that paragraph 3 of LOI 1211 applies only when judicial process is not possible. This is a narrow and
constricted interpretation of LOI 1211 when viewed in its entirety. Even in instances when a resort to
judicial process is possible, where, in the judgment of the President, a resort thereto would not be
expedient because it would endanger the public order or safety, a PCO is justified. So, too, when
release on bail in the ordinary judicial process will invite the same danger.

By its very nature, and clearly by its language, LOI 1211 is a mere directive of the President as
Commander-in-Chief of the Armed Forces of the Philippines to his subordinates or implementing
officers for the ultimate objective of providing guidelines in the arrest and detention of the persons
covered by Presidential Proclamation No. 2045. The purpose is "to insure protection to individual
liberties without sacrificing the requirements of public order and safety and the effectiveness of the
campaign against those seeking the forcible overthrow of the government and duty constituted
authorities. " LOI 1211 does not, in any manner, limit the authority of the President to cause the
arrest and detention of persons engaged in, or charged with the crimes or offenses mentioned in
said Proclamation in that he (President) would subject himself to the superior authority of the judge
who, under normal judicial processes in the prosecution of the common offenses, is the one
authorized to issue a judicial warrant after a preliminary investigation is conducted with a finding of
probable cause. Those who would read such an intention on the part of the President in issuing LOI
1211 seems to do so in their view that LOI forms part of the law of the land under the 1976
amendment of the Constitution.   They would then contend that a PCO issued not in compliance with
10

the provisions of the LOI would be an illegality and of no effect.

To form part of the law of the land, the decree, order or LOI must be issued by the President in the
exercise of his extraordinary power of legislation as contemplated in Section 6 of the 1976
amendments to the Constitution, whenever in his judgment, there exists a grave emergency or a
threat or imminence thereof, or whenever the interim Batasan Pambansa or the regular National
Assembly fails or is unable to act adequately on any matter for any reason that in his judgment
requires immediate action. There can be no pretense, much less a showing, that these conditions
prompted the President to issue LOI 1211. Verily, not all LOI issued by the President should be
dignified into forming part of the law of the land.

In the event then that the judge believes no warrant shall issue, the President, under Presidential
Proclamation No. 2045 and Letter of Instruction No. 1211, is not bound by such finding, as explicitly
provided in paragraph 2 of LOI 1211. That the President avails of the facilities of the judicial
machinery, as is the clear intent of LOI 1211, to aid him in exercising his power to restrain personal
liberty, as dictated by the necessities and exigencies of the emergency, does not indicate any
intention on his part to renounce or to allow even mere curtailment of his power such that the judicial
process will thereupon take its normal course, under which the detainees or accused would then be
entitled to demand their right of due process, particularly in relation to their personal liberty.   The 11

issuance of the PCO by the President necessarily constitutes a finding that the conditions he has
prescribed in LOI 1211 for the issuance of that PCO have been met, and intends that the detention
would be pursuant to the executive process incident to the government campaign against the rebels,
subversives and dissidents waging a rebellion or insurrection. The ruling in the Nava vs. Gatmaitan
case,* as above intimated, must have shown him that to prosecute the offense through the judicial process of forthwith instead of deferring
it, would neither be wise nor expedient if he were to deal effectively with the grave emergency at hand.

What has been said above shows the need of reexamining the Lansang case with a view to
reverting to the ruling of Barcelon vs. Baker, 5 Phil. 87, a 1905 decision, and Montenegro vs.
Castaneda, 91 Phil. 882 (1952), that the President's decision to suspend the privilege of the writ of
habeas corpus is "final and conclusive upon the courts, and all other persons." This well-settled
ruling was diluted in the Lansang case which declared that the "function of the Court is merely to
check — not to supplant — the Executive, or ascertain merely whether he has gone beyond the
constitutional limits of his jurisdiction not to exercise the power vested in him or to determine the
wisdom of his act." Judicial interference was thus held as permissible, and the test as laid down
therein is not whether the President acted correctly but whether he acted arbitrarily. This would
seem to be pure semanticism, if We consider that with particular reference to the nature of the
actions the President would take on the occasion of the grave emergency he has to deal with, which,
as clearly indicated in Section 9, Art. VII of the Constitution partakes of military measures, the
judiciary can, with becoming modesty, ill afford to assume the authority to check or reverse or
supplant the presidential actions. On these occasions, the President takes absolute command, for
the very life of the Nation and its government, which, incidentally, includes the courts, is in grave
peril. In so doing, the President is answerable only to his conscience, the people and to God. For
their part, in giving him the supreme mandate as their President, the people can only trust and pray
that, giving him their own loyalty with utmost patriotism, the President will not fail them.

In his separate opinion in the Lansang case, then Justice Fernando, now our learned Chief Justice,
went along with the proposition that the decision of the Executive in the exercise of his power to
suspend the privilege of the writ of habeas corpus is his alone, and in his own language, is
"ordinarily beyond the ken of the Courts." This is so, as the Founding Fathers must have felt that in
the particular situations at hand, the Executive and the Judiciary should maintain a mutually
deferential attitude. This is the very essence of the doctrine of "political question, " as determining
the justiciability of a case. The wisdom of this concept remains well-recognized in advanced
constitutional systems. To erase it from our own system as seems to be what was done in the
Lansang case, may neither be proper nor prudent. A good example could be given in the exercise of
the presidential power of pardon which is beyond judicial review, specially under the new
Constitution where the condition that it may be granted only after final conviction has been done
away with.

True, the Constitution is the law "equally in war and in peace,"   as Chief Justice Fernando cited in
12

his brilliant separate opinion in the same Lansang case. Precisely, it is the Constitution that gives the
President specific "military power" in times of warlike conditions as exist on the occasion of invasion,
insurrection or rebellion. Both power and right are constitutionally granted, with the difference that
the guarantee of the right to liberty is for personal benefit, while the grant of the presidential power is
for public safety. Which of the two enjoys primacy over the other is all too obvious. For the power is
intended as a limitation of the right, in much the same way as individual freedom yields to the
exercise of the police power of the State in the interest of general welfare. The difference again is
that the power comes into being during extreme emergencies the exercise of which, for complete
effectiveness for the purpose it was granted should not permit intereference, while individual
freedom is obviously for full enjoyment in time of peace, but in time of war or grave peril to the
nation, should be limited or restricted. In a true sense then, our Constitution is for both peacetime
and in time of war; it is not that in time of war the Constitution is silenced. The Founding Fathers,
with admirable foresight and vision, inserted provisions therein that come into play and application in
time of war or similar emergencies. So it is that, as proclaimed by the Constitution, the defense of
the State is a prime duty of government. Compulsory military service may be imposed, certainly a
mandate that derogates on the right to personal liberty. It, therefore, becomes self-evident that the
duty of the judiciary to protect individual rights must yield to the power of the Executive to protect the
State, for if the State perishes, the Constitution, with the Bill of Rights that guarantees the right to
personal liberty, perishes with it.

In times of war or national emergency, the legislature may surrender a part of its power of legislation
to the President.   Would it not be as proper and wholly acceptable to lay down the principle that
13

during such crises, the judiciary should be less jealous of its power and more trusting of the
Executive in the exercise of its emergency powers in recognition of the same necessity? Verily, the
existence of the emergencies should be left to President's sole and unfettered determination. His
exercise of the power to suspend the privilege of the writ of habeas corpus on the occasion thereof,
should also be beyond judicial review. Arbitrariness, as a ground for judicial inquiry of presidential
acts and decisions, sounds good in theory but impractical and unrealistic, considering how well-nigh
impossible it is for the courts to contradict the finding of the President on the existence of the
emergency that gives occasion for the exercise of the power to suspend the privilege of the writ. For
the Court to insist on reviewing Presidential action on the ground of arbitrariness may only result in a
violent collision of two jealous powers with tragic consequences, by all means to be avoided, in favor
of adhering to the more desirable and long-tested doctrine of "political question" in reference to the
power of judicial review. 14

Amendment No. 6 of the 1973 Constitution, as earlier cited, affords further reason for the
reexamination of the Lansang doctrine and reversion to that of Barcelon vs. Baker and Montenegro
vs. Castaneda.

Accordingly, We hold that in times of war and similar emergency as expressly provided in the
Constitution, the President may suspend the privilege of the writ of habeas corpus, which has the
effect of allowing the Executive to defer the prosecution of any of the offenses covered by
Proclamation No. 2045, including, as a necessary consequence, the withholding for the duration of
the suspension of the privilege, of the right to bail. The power could have been vested in Congress,
instead of the President, as it was so vested in the United States for which reason, when President
Lincoln himself exercised the power in 1861, Chief Justice Taney of the U.S. Supreme Court
expressed the opinion that Congress alone possessed this power under the
Constitutional.,   Incidentally, it seems unimaginable that the judiciary could subject the suspension,
15
if decreed through congressional action, to the same inquiry as our Supreme Court did with the act
of the President, in the Lansang case, to determine if the Congress acted with arbitrariness.

We further hold that under LOI 1211, a Presidential Commitment Order, the issuance of which is the
exclusive prerogative of the President under the Constitution, may not be declared void by the
courts, under the doctrine of "political question," as has been applied in
the Baker and Castaneda cases, on any ground, let alone its supposed violation of the provision of
LOI 1211, thus diluting, if not abandoning the doctrine of the Lansang case. The supreme mandate
received by the President from the people and his oath to do justice to every man should be
sufficient guarantee, without need of judicial overseeing, against commission by him of an act of
arbitrariness in the discharge particularly of those duties imposed upon him for the protection of
public safety which in itself includes the protection of life, liberty and property. This Court is not
possessed with the attribute of infallibility that when it reviews the acts of the President in the
exercise of his exclusive power, for possible fault of arbitrariness, it would not itself go so far as to
commit the self-same fault.

Finally, We hold that upon the issuance of the Presidential Commitment Order against herein
petitioners, their continued detention is rendered valid and legal, and their right to be released even
after the filing of charges against them in court, to depend on the President, who may order the
release of a detainee or his being placed under house arrest, as he has done in meritorious cases.

WHEREFORE, the instant petition should be, as it is hereby dismissed.

SO ORDERED.

Guerrero, Plana, Escolin, Vasquez, Relova and Gutierrez, Jr., JJ., concur.

Concepcion, Jr. and Melencio-Herrera, JJ., concur in the result.

Aquino, J., is on leave.

Separate Opinions

FERNANDO, C.J., concurring:

In the result with qualification primarily on the respect that must be accorded the constitutional right
to bail once a case is flied and dissenting as to the overruling of Lansang v. Garcia:

MAKASIAR, J., concurring:

Concuring in the result and in overruling the Lansang case.

ABAD SANTOS, J., concurring:
In the result and in overruling Lansang. I reserve my right on the question of bail.

FERNANDO, C.J., concurring:

Concurring in the result with qualification primarily on the respect that must be accorded the
constitutional right to bail once a case is filed and dissenting as to the overruling of Lansang v.
Garcia.

It does not admit of doubt that the question posed in this petition for the writ of habeas corpus, and in
other similar petitions for that matter, is impressed with significance that calls for the highest degree
of care and circumspection. The result arrived at by the Court is that once a presidential commitment
order is issued, the detention is rendered valid and legal, the right to be released of the person
detained even after the filing of charges being dependent on the President "who may order the
release of a detainee or his being placed under house arrest, as he has done in meritorious
cases."   The exhaustive opinion of the Court penned by Justice de Castro likewise re-examines the
1

Lansang doctrine   which ruled that the suspension of the privilege of the writ of habeas corpus
2

raises a judicial rather than a political question and reverts to the principle announced in the earlier
cases of Barcelon v. Baker   and Montenegro v. Castañeda,   both of which held that the question
3 4

raised is political in character.

I concur in the ruling that while as a general rule preventive detention is an obstacle to judicial
inquiry, this Court is empowered where compelling reasons exist to inquire into the matter.
Moreover, the judiciary once a case has been filed has jurisdiction to act on a petition for bail. I
dissent insofar as the decision overrules Lansang v. Garcia.

1. Petitioners in their application for the writ of liberty assert an infringement of a right that finds
shelter in the fundamental law. This Court, both in normal times and under emergency conditions, is
not susceptible to the accusation that it has not accorded the most careful study to a plea of such
character. Petitioners were heard and their cases decided. In addition to Lansang, People v.
Ferrer,   Aquino Jr. v. Ponce Enrile   and Aquino Jr. v. Military Commission No. 2   may be cited. This
5 6 7

Tribunal then has not been insensible to its duty to render fealty to the applicable mandates of the
Constitution. That is to be true to the primordial concept first announced in the landmark decision
of Marbury v. Madison,   the opinion being rendered by the illustrious Chief Justice Marshall,
8

enunciating the principle of judicial review. Our Constitution is quite clear on the matter. So it was
held in Angara v. Electoral Tribunal,   the first case of transcendental importance under the 1935
9

Charter. It is quite manifest that judicial review is not only a power but a duty.  10

2. Thus the judiciary can be appealed to and in appropriate cases, annul executive or legislative
acts. For as so often stressed, "the Constitution is not only law, but a higher law, to which other law
must bow."   Professor Black went on to state: "Here, I think, we are laboring the obvious. The
11

superior status of the Constitution is clearer even than its standing as law. But if it is of superior
status, and if it is law, then it is law of a superior status. Again, the important thing is not whether
some flaw could be found in the logic by which this was established. The logic of human institutions
is a logic of probability. The important thing is that this concept of the superior status of the
Constitution as law very early became and has since continued to be a standard part of the way in
which the American lawyer and judge and citizen look at their government."   This is not to deny the
12

possibility of judicial interference with policy formulation, better left to the political branches. It is an
entirely different matter of course where the question is one of liberty.

3. An inquiry into the validity of executive or legislative act has been fitly characterized as both
awesome and delicate. Nonetheless, for the judiciary, there is no choice. To repeat, it is a duty to be
performed. This is so especially where the writ of habeas corpus has been invoked. It is then
incumbent on a court to pass on the legality of the detention. As I had occasion to state in my
separate opinion in Aquino Jr. vs. Enrile:   "This Court has to act then. The liberty enshrined in the
13

Constitution, for the protection of which habeas corpus is the appropriate remedy, imposes that
obligation. Its task is clear. It must be performed. That is a trust to which it cannot be recreant.
Whenever the grievance complained of is deprivation of liberty, it is its responsibility to inquire into
the matter and to render the decision appropriate under the circumstances. Precisely, a habeas
corpus petition calls for that response."   It cannot be overemphasized that the writ of habeas
14

corpus, as a constitutional right, it, for eminent commentators, protean in scope. A reference to the
opinion of the Court in Gumabon v. Director of Bureau of Prisons   may not be amiss. Thus: "The
15

writ imposes on judges the grave responsibility of ascertaining whether there is any legal justification
for a deprivation of physical freedom. Unless there be such a showing, the confinement must
thereby cease. "   It continues: "Rightly then could Chafee refer to the writ as 'The most important
16

human rights provision' in the fundamental law. Nor is such praise unique. Cooley spoke of it as
'One of the principal safeguards to personal liberty.' For Willoughby, it is 'the greatest of the
safeguards erected by the civil law against arbitrary and illegal imprisonment by whomsoever
detention may be exercised or ordered.' Burdick echoed a similar sentiment, referring to it as 'One of
the most important bulwarks of liberty.' Fraenkel made it unanimous, for to him. 'Without it much else
would be of no avail.' Thereby the rule of law is assured. A full awareness of the potentialities of the
writ of habeas corpus in the defense of liberty coupled with its limitations may be detected in the
opinions of former Chief Justices Arellano, Avancena, Abad Santos, Paras, Bengzon and [Chief
Justice Concepcion]. It fell to Justice Malcolm's lot, however to emphasize quite a few times the
breadth of its amplitude and of its reach." 17

4. So it is in the United States. As so well put by Justice Brennan in Fay v. Noia:   "We do well to
18

bear in mind the extraordinary prestige of the Great Writ, habeas corpus ad subjiciendum, in Anglo-
American jurisprudence: 'the most celebrated writ in English Law,' 3 Blackstone Commentaries 129.
It is 'a writ antecedent to statute, and throwing its root deep into the genius of our common law * * *.
It is perhaps the most important writ known to the constitutional law of England, affording as it does
a swift and imperative remedy in all cases of illegal restraint and confinement. It is of immemorial
antiquity, an instance of its use occurring in the thirty-third year of Edward I. 'Secretary of State for
Home Affairs v. O'Brien [1923] AC 603, 609 (HL) Received into our own law in the colonial period,
given explicit recognition in the Federal Constitution, Art. I, Sec. 9, cl. 2, incorporated in the first
grant of federal court jurisdiction, Act of September 24, 1978, c 20, sec. 14, 1 State 81, 82, habeas
corpus was earlier confirmed by Chief Justice John Marshall to be a 'Great constitutional privilege.'
Ex parte Bollman and Swartout (US) 4 Cranch 75, 95, 2L ed 554, 561. Only two Terms ago this
Court had occasion to reaffirm the high place of the writ in our jurisprudence: 'We repeat what has
been so truly said of the federal writ: "there is no higher duty than to maintain it unimpaired," Bowen
v. Johnston, 306 US 19, 26, 83 L ed 455, 461, 59 S Ct 442 (1939), and unsuspended, save only in
the cases specified in our Constitution.' Smith v. Bennett, 365 US 708, 713, 6 1 ed 2d 39, 43, 81 s
Ct. 895. " 
19

5. To repeat, it is the ruling of this Court that an issuance of a presidential commitment order imparts
validity to a detention the right to be released of the person detained even after the filing of charges
being dependent on the President who may order such release or his being placed under house
arrest. As I mentioned at the outset, I yield a qualified concurrence. The power of preventive
detention where the privilege of the writ of habeas corpus is suspended has been recognized.   The 20

lifting of martial law unfortunately has not been followed by a restoration of peace and order in
certain sections of the country. In the proclamation lifting martial law, the last paragraph of the
whereas clause spoke of the awareness of the government and the Filipino people of public safety
continuing "to require a degree of capability to deal adequately with elements who persist in
endeavoring to overthrow the government by violent means and exploiting every opportunity to
disrupt [its] peaceful and productive" efforts.   Accordingly, in terminating the state of martial law
21

throughout the Philippines, it was provided: "that the call to the Armed Forces of the Philippines to
prevent or suppress lawless violence, insurrection, rebellion and subversion shall continue to be in
force and effect; and Provided that in the two autonomous regions in Mindanao, upon the request of
the residents therein, the suspension of the privileges of the writ of habeas corpus shall continue;
and in all other places the suspension of the privilege of the writ shall also continue with respect to
persons at present detained as well as others who may hereafter be similarly detained for the crimes
of insurrection or rebellion, subversion; conspiracy or proposal to commit such crimes and for all
other crimes and offenses committed by them in furtherance or on the occasion thereof, or incident
thereto, or in connection therewith; * * *."   That is the basis for the preventive detention of
22

petitioners in this case.

6. The President as commander-in-chief may call out the armed forces to prevent or suppress
lawless violence, invasion, insurrection, or rebellion and in case of invasion, insurrection, or
rebellion, or imminent danger thereof, when the public safety requires it, "may suspend the privilege
of the writ of habeas corpus, or place the Philippines or any part thereof under martial law."  There
23

are thus three alternatives which may be availed to meet a grave public danger to the security of the
state. As pointed out by Chief Justice Concepcion in Lansang, prior to the suspension of the
privilege of the writ in 1971, the armed forces had been called out, but such a move "proved
inadequate to attain the desired result. Of the two (2) other alternatives, the suspension of the
privilege is the least harsh."   Even if only the first alternative were resorted to, the executive could
24

still exercise the power of preventive detention. Moyer v. Peabody,   decided by the American
25

Supreme Court, the opinion being penned by Justice Holmes, may be cited. According to the
statement of the facts of that case, "it appeared that the governor had declared a county to be in a
state of insurrection, had called out troops to put down the trouble, and had ordered that the plaintiff
should be arrested as a leader of the outbreak, and should be detained until he could be discharged
with safety, and that then he should be delivered to the civil authorities, to be dealt with according to
law."   On those facts the American Supreme Court held that preventive detention was allowable,
26

the test of its validity being one of good faith. The state governor then could "make the ordinary use
of the soldiers to that end; that he may kill persons who resist, and, of course, that he may use the
milder measure of seizing the bodies of those whom he considers to stand in the way of restoring
peace. Such arrests are not necessarily for punishment, but are by way of precaution, to prevent the
exercise of hostile power. So long as such arrests are made in good faith and in the honest belief
that they are needed in order to head the insurrection off, the governor is the final judge and cannot
be subjected to an action after he is out of office, on the ground that he had not reasonable ground
for his belief."   The last paragraph of Justice Holmes opinion was even more emphatic: "When it
27

comes to a decision by the head of the state upon a matter involving its life, the ordinary rights of
individuals must yield to what he deems the necessities of the moment. Public danger warrants the
substitution of executive process for judicial process. See Keely v. Sanders, 99 U.S. 441, 446, 25 L.
ed. 327, 328. This was admitted with regard to killing men in the actual clash of arms; and we think it
obvious, although it was disputed, that the same is true of temporary detention to prevent
apprehended harm. As no one would deny that there was immunity for ordering a company to fire
upon a mob in insurrection, and that a state law authorizing the governor to deprive citizens of life
under such circumstances was consistent with the 14th Amendment, we are of opinion that the
same is true of a law authorizing by implication that was done in this case."   Nonetheless, while
28

preventive detention is a proper measure to cope with the danger arising from the insurrection or
rebellion, it may continue for such length of time as to make it punitive in character. If such were the
case, I am not prepared to yield concurrence to the view that this Court is devoid of the power in a
habeas corpus proceeding to inquire into the legality of the detention. As to when such a stage is
reached cannot be set forth with precision. The test would be an appraisal of the environmental facts
of each case. This is not to deny that the presumption must be in favor not only of the good faith
characterizing the presidential action but of the absence of any arbitrary taint in so ordering
preventive detention. It is out of excess of caution and due to the belief that habeas corpus as a writ
of liberty should not be unnecessarily curtailed that I feel compelled to qualify my concurrence in that
respect.
7. Nor is this all. Once a case is filed, the party detained may avail himself of the right to bail. If there
be such a petition, the court has jurisdiction to grant or to deny bail in accordance with the
constitutional provision.   Inasmuch as the return to the writ filed by the Solicitor General states that
29

a warrant of arrest against detainee Dra. Aurora Parong was issued on August 4, 1982, by the
Municipal Court of Bayombong, for illegal possession of firearm and ammunition, then clearly she
has a right to invoke such right, notwithstanding the suspension of the privilege of the writ. So I did
argue as counsel in Hernandez v. Montesa,   where a majority of this Court with one vote lacking to
30

make their conclusion doctrinal agreed with such submission. There was adherence to such a view
in my separate opinions in Lansang   and in Buscayno v. Enrile,   I do again and to that extent
31 32

dissent.

8. It may be worthwhile to touch briefly on the exercise of power of preventive detention in other
jurisdictions. The retired Lord President of the Federal Court of Malaysia Tun Mohamed Suffian in
his work on the Malaysian constitution, spoke of the emergency powers of the executive, the Yang
Dipertuan Agung in this wise: " If the Yang Dipertuan Agung (acting on Cabinet advice) is satisfied
that a grave emergency exists whereby the security or economic life of the Federation or any part
thereof is threatened, article 150 empowers him to issue a proclamation of emergency. He has done
so thrice: first, to meet the emergency caused by Indonesian confrontation, secondly, to meet the
emergency caused by the political crisis arising out of the position of the Chief Minister of Sarawak
and, thirdly, to meet the emergency caused as a result of the violence that erupted on 13th May,
1969. (The 1948-1960 emergency was proclaimed under pre-independence law, not under the
constitution). If a proclamation of emergency is issued when Parliament is not sitting, the Yang
Dipertuan Agung must summon Parliament as soon as may be practicable. Until both Houses of
Parliament are sitting, he may promulgate ordinances having the force of law, if satisfied that
immediate action is required."   By virtue of such competence, preventive detention may be
33

ordered.   The power of preventive detention is likewise recognized in India. According to Professor
34

Jain, in a leading article, it "prevails in many democratic countries and in some form or other, at one
time or other, each democratic country has taken recourse to preventive detention, especially during
the war period."   He mentioned the United States Internal Security Act enacted by its Congress in
35

1950 for emergency detention "during an emergency of war, invasion or domestic insurrection of a
person about whom there is a reasonable ground to believe that he would probably engage in acts
of sabotage or espionage. The U.S. Constitution also provides for suspension of habeas corpus
during rebellion or invasion if public safety so requires."   He likewise referred to England, citing
36

Regulation 14B of the Defense of Realm Act Regulations, 1914, during World War I and Regulation
18B of the Defense Regulations during World War II which according to him led to the celebrated
case of Liversidge v. Anderson.   Then he turned to his own country: "In India, because of unstable
37

law and order situation, preventive detention has been in vogue since its independence in 1947.
After the commencement of the Constitution, Parliament enacted the Preventive Detention Act,
1950, to lay down a legal framework for preventive detention on certain grounds. The present day
law for the purpose is the Maintenance of Internal Security Act, 1971. A salient feature of the law of
preventive detention in India has been to confer a very broad discretion on the administrative
authority to order preventive detention of a person in certain circumstances."   He spoke of the
38

relevant constitutional provisions having a bearing on preventive detention: "A law for preventive
detention can be made by Parliament exclusively under entry 9, List 1, for reasons connected with
'defensee', 'foreign affairs' or the 'security of India.' Further, under entry 3, List 111, Parliament and
the State Legislatures can concurrently make a law for preventive detention for reasons connected
with the " security of a State', maintenance of public order,' or 'maintenance of supplies and services
essential to the community.' Parliament thus has a wide legislative jurisdiction in the matter as it can
enact a law of preventive detention for reasons connected with all the six heads mentioned above.
The Preventive Detention Act, 1950, and now the Maintenance of Internal Security Act, 1971, have
been enacted by Parliament providing for preventive detention for all these six heads."   For him the
39

law of preventive detention in India "has therefore been too much administrative-ridden and the
scope of judicial review has been very much limited."   He made a careful study of the cases on
40
preventive detention in India. As he pointed out, "the range and magnitude of administrative control
over the individual's personal liberty is very vast, and the range of judicial control is very restrictive,
as the basic question, whether a person should be detained or not on the facts and circumstances of
the case, hes within the scope of administrative discretion and beyond judicial
review."   Nonetheless, the Supreme Court of India, as he stressed, "in the interest or maintaining
41

constitutionalism," has been able to take "a somewhat broad view of its restricted powers, and has
given whatever relief it can to the detained persons."   For me that approach has much to
42

recommend it. This is not to deny that in the event there is a misapprehension as to the actual facts
that led to the preventive detention, the plea for remedial action should, in the first instance, be
addressed to the President. Very likely, there will be an affirmative response. Even then, the
assurance to a party feeling aggrieved that there could still be resort to judicial review, even if
utilized only in rare and exceptional cases, may conduce to a deeper sense of loyalty to the existing
constitutional order on the part of the misguided or disaffected individuals. Hence, to repeat, this
qualified concurrence on my part.

9. The opinion of the Court, however, did not stop at dismissing the petition on the ground that the
issuance of a presidential commitment order validates the preventive detention of petitioners. It went
farther by reexamining the unanimous ruling in Lansang to the effect that the suspension of the
privilege of the writ of habeas corpus raises a judicial rather than a political question and holding that
it is no longer authoritative. With due respect, I cannot agree to such a conclusion. In the first place,
there was no need to go that far. For me, at least, the rationale that this Court must accord
deference to a presidential committment order suffices for the decision of this case. Nor would I limit
my dissent on that ground alone. It is for me, and again I say this with due respect, deplorable and
unjustifiable for this Court to turn its back on a doctrine that has elicited praise and commendation
from eminent scholars and jurists here and abroad.

10. That is easily understandable. The learned, comprehension and unanimous Lansang opinion
penned by Chief Justice Concepcion concurred in by all the Justices,   to my mind, explains with
43

lucidity and force why the question is judicial rather than political. Thus: "Indeed, the grant of power
to suspend the privilege is neither absolute nor unqualified. The authority conferred by the
Constitution, both under the Bill of Rights and under the Executive Department, is limited and
conditional. The precept in the Bill of Rights establishes a general rule, as well as an exception
thereto. What is more, it postulates the former in the negative, evidently to stress its importance, by
providing that '(t)he privilege of the writ of habeas corpus shall not be suspended * * *.' It is only by
way of exception that it permits the suspension of the privilege 'in cases of invasion, insurrection, or
rebellion'- or, under Art. VII of the Constitution, 'imminent danger thereof when the public safety
requires it, in any of which events the same may be suspended wherever during such period the
necessity for such suspension shall exist.' For from being full and plenary, the authority to suspend
the privilege of the writ is thus circumscribed, confined and restricted, not only by the prescribed
setting or the conditions essential to its existence, but, also, as regards the time when and the place
where it may be exercised. These factors and the aforementioned setting or conditions mark,
establish and define the extent, the confines and the limits of said power, beyond which it does not
exist. And, like the limitations and restrictions imposed by the Fundamental Law upon the legislative
department, adherence thereto and compliance therewith may, within proper bounds, be inquired
into by courts of justice. Otherwise, the explicit constitutional provisions thereon would be
meaningless. Surely, the framers of our Constitution could not have intended to engage in such a
wasteful exercise in futility."   The then Chief Justice continued: "Much less may the assumption be
44

indulged in when we bear in mind that our political system is essentially democratic and republican
in character and that the suspension of the privilege affects the most fundamental element of that
system, namely, individual freedom. Indeed, such freedom includes and connotes, as well as
demands, the right of every single member of our citizenry to freely discuss and dissent from, as well
as criticize and denounce, the views, the policies and the practices of the government and the party
in power that he deems unwise, improper or inimical to the commonwealth, regardless of whether
his own opinion is objectively correct or not. The untrammelled enjoyment and exercise of such right-
which, under certain conditions, may be a civic duty of the highest order- is vital to the democratic
system and essential to its successful operation and wholesome growth and development."  45

11. One of the merits of the ponencia of Chief Justice Concepcion is that it is infused with a sense of
realism. These are his words: "Manifestly, however, the liberty guaranteed and protected by our
Basic Law is one enjoyed and exercised, not in derogation thereof, but consistently therewith, and,
hence, within the framework of the social order established by the Constitution and the context of the
Rules of Law. Accordingly, when individual freedom is used to destroy that social order, by means of
force and violence, in defiance of the Rule of Law- such as by rising publicly and taking arms against
the government to overthrow the same, thereby committing the crime of rebellion there emerges a
circumstance that may warrant a limited withdrawal of the aforementioned guarantee or protection,
by suspending the privilege of the writ of habeas corpus, when public safety requires it. Although we
must be forewarned against mistaking mere dissent-no matter how emphatic or intemperate it may
be-fore dissidence amounting to rebellion or insurrection, the Court cannot hesitate, much less-
refuse-when the existence of such rebellion or insurrection has been fairly established or cannot
reasonably be denied-to uphold the finding of the Executive thereon, without, in effect, encroaching
upon a power vested in him by the Supreme Law of the land and depriving him, to this extent, of
such power, and, therefore, without violating the Constitution and jeopardizing the very Rule of Law
the Court is called upon to epitomize." 46

12. After which this Court, as set forth in the Lansang opinion, considered "the precise nature" of its
function: "Article VII of the Constitution vests in the Executive the power to suspend the privilege of
the writ of habeas corpus under specified conditions. Pursuant to the principle of separation of
powers underlying our system of government, the Executive is supreme within his own sphere.
However, the separation of powers, under the Constitution, is not absolute. What is more, it goes
hand in hand with the system of checks and balances, under which the Executive is supreme, as
regards the suspension of the privilege, but 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."   Further: "In the
47

exercise of such authority, the function of the Court is merely to check-not to supplant-the Executive,
or to ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction, not to
exercise the power vested in him or to determine the wisdom of his act. To be sure, the power of the
Court to determine the validity of the contested proclamation is far from being Identical to, or even
comparable with, its power over ordinary civil or criminal cases elevated thereto by ordinary appeal
from inferior courts, in which cases the appellate court has all of the powers of the court of
origin."   It is clear the competence of this Court to pass upon the validity of the suspension of the
48

privilege of the writ is confined within limits that preclude the assumption of power that rightfully
belongs to the Executive. There would then be, to my mind, no sufficient Justification to retreat from
a position that assures judicial participation on a matter of momentous consequence. Moreover, to
the extent that such a move has had the benefit of judicial appraisal, and thereafter approval, to that
extent there may be less valid opposition and hopefully greater understanding of why such a step
had to be taken.

13. With Lansang overruled, the doctrine that the suspension of the privilege of the writ announced
in Barcelon v. Baker   and Montenegro v. Castañeda   will be revived. This for me is unfortunate.
49 50

The Montenegro decision, as I had occasion to state "owed its existence to the compulsion exerted
by Barcelon v. Baker, a 1905 decision. This Court was partly misled by an undue reliance in the
latter case on what it considered to be authoritative pronouncements from such illustrious American
jurists as Marshall, Story, and Taney. That is to misread what was said by them. This is most evident
in the case of Chief Justice Marshall, whose epochal Marbury v. Madison was cited. Why that was
so is difficult to understand. For it speaks to the contrary. It was by virtue of this decision that the
function of judicial review owes its origin notwithstanding the absence of any explicit provision in the
American Constitution empowering the courts to do so. Thus: 'It is emphatically the province and
duty of the judicial department to say what the law is. Those who apply the rule to particular cases,
must of necessity expound and interpret that rule. If two laws conflict with each other, the courts
must decide on the operation of each. So if a law be in opposition to the constitution; if both the law
and the constitution apply to a particular case, so that the court must either decide that case
conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding
the law; the court must determine which of these conflicting rules governs the case. This is of the
very essence of judicial duty. If, then, the courts are to regard the constitution, and the constitution is
superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must
govern the case to which they both apply.'"   The opinion went on to say: "Nor is the excerpt from
51

Justice Story, speaking for the United States Supreme Court, in Martin v. Mott, as made clear in the
opinion of the Chief Justice, an authority directly in point. There, a militiaman had been convicted of
failing to respond to a call, made under the Act of 1795, to serve during the War of 1812. His
property was taken to satisfy the judgment. He brought an action of replevin. The American
Constitution empowers its Congress 'to provide for calling forth the Militia' in certain cases, and
Congress did provide that in those cases the President should have authority to make the call." All
that Justice Story did in construing the statute in the light of the language and purpose of her
Constitution was to recognize the authority of the American President to decide whether the
exigency has arisen. In stating that such power was exclusive and thus had a conclusive effect, he
relied on the language employed, impressed with such a character. The constitutional provision on
the suspension of the privilege of the writ is, as shown, anything but that. Chief Justice Taney
in Luther v. Borden, likewise had to deal with a situation involving the calling out of the militia. As a
matter of fact, an eminent commentator speaking of the two above decisions had this apt
observation: "The common element in these opinions would seem to be a genuine judicial reluctance
to speak in a situation where the voice of the Court, even if heard, could not have any effect. More
than this, both Story and Taney seem to share the suspicion, unusual in them, that under a popular
form of government there are certain questions that the political branches must be trusted to answer
with finality. What was said next is even more pertinent. Thus: 'It would be dangerous and
misleading to push the principles of these cases too far, especially the doctrine of "political
questions" as implied in Luther v. Borden. Given the opportunity to afford a grievously injured citizen
relief from a palpably unwarranted use of presidential or military power, especially when the question
at issue falls in the penumbra between the "political" and the "justiciable", the Court will act as if it
had never heard of this doctrine and its underlying assumption that there are some powers against
which the judiciary simply cannot be expected to act as the last line of defense.' It would thus seem
evident that support for the hitherto prevailing Montenegro ruling was rather frail. Happily, with our
decision, it is no longer capable of the mischief to which it does lend itself of an undue diminution of
judicial power to the prejudice of constitutional rights." 
52

14. An opinion of a court, especially this Tribunal, should not ignore the environmental facts which
gave rise to a litigation where the issues arise from problems inseparable from national security.
There is, in addition, the need to take into consideration the pressure of contemporary events. For as
has so often been stressed, judicial process does not take place in a social void. The questions
before the Court are to be viewed with full awareness of the consequences attendant to the decision
reached. As so tersely expressed by Justice Tuason in Araneta v. Dinglasan:"   "We test a rule by its
53

results."   More often than not especially during times of stress, it is inescapable that efforts be made
54

to reconcile time-tested principles to contemporary problems. The judiciary is called upon to do its
part. There is wisdom in these words of Justice Tuason from the same opinion: "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.'"   To repeat, I accord the fullest respect to the mode and manner in which my brethren
55

performed their duty and discharged their responsibility in passing upon the transcendental question
raised in this petition. With the basic premise of robust concern for individual rights to which I have
been committed,however, I have no choice except to vote the way I did, even if for those whose
opinions I value conformity with the hitherto unquestioned verities may at times prove to be less than
adequate to meet the exigencies of the turbulent present.

TEEHANKEE, J., dissenting:

I am constrained to dissent from the all-encompassing scope of the main opinion of Mr. Justice de
Castro which would overturn the landmark doctrine of Lansang vs. Garcia   which upheld the
1

Supreme Court's authority to inquire into the existence of factual bases for the President's
suspension of the privilege of the writ of habeas corpus in order to determine the constitutional
sufficiency thereof and would revert to the retrogressive and colonial era ruling of Barcelon vs.
Baker   and Montenegro vs. Castañeda   that the President's decision to so suspend the privilege of
2 3

the writ "is final and conclusive upon the courts and all other persons," and would further deny the
right to bail even after the filing of charges in court to persons detained under Presidential
Commitment Orders.

This case, as in other like cases, focuses on the grievances that persons detained or charged for the
crimes of insurrection, rebellion, subversion, conspiracy or proposal to commit such crimes,
invariably bring to this Court. They complain, as petitioners do here, of being arrested without any
warrant of arrest; of being informed of purported telegrams concerning the issuance of a Presidential
Commitment Order PCO authorizing their arrest and detention, but that they are not given a copy of
such PCO nor notified of its contents, raising doubts whether such PCO has in fact been issued; of
being kept in isolation or transferred to so-called "safehouses" and being denied of their
constitutional right to counsel and to silence; of prolonged detention without charges; "of a seeming
deliberate and concerted effort by respondents to conceal from counsel and relatives the detainees'
place of detention, raising the apprehension that respondents are using force, violence, threat,
intimidation and other means which vitiate free will to obtain confessions and statements from the
detainees in violation of their constitutional rights;" and of their counsel and families undergoing
great difficulties in locating or having access to them (main opinion at p. 3).

The State through the Solicitor General on the other hand invariably denies all such charges and
submits affidavits of the arresting officers and detention custodian that detainees are afforded decent
and humane treatment, further countering that such claims are merely calculated to arouse
sympathy and as propaganda against the Government and its institutions.

In many such cases, however, the Court in issuing the writ of habeas corpus requiring respondents
to make a return of the writ includes a resolution, in recognition of the detainees' constitutional rights,
"to allow counsel for petitioners to visit and confer with the detainee(s) in an atmosphere of
confidentiality consistent with reasonable security measures which respondents may impose."   In 4

other cases where respondents military officials have allegedly denied having in their custody the
person(s) detained, the Court has issued its resolution "on the assumption that the detained person
is in the custody of respondents, that there be due observance and respect of his right to counsel
and other constitutional rights by respondents."  5

Respondents' return through the Solicitor General in the case at bar states that the detainees are all
detained by virtue of a Presidential Commitment Order issued on July 12, 1982 (several days after
their arrest without warrant on July 6 and 7, 1982) and that corresponding charges against the
detainees were filed in court and before the Acting Provincial Fiscal of Nueva Viscaya where they
are pending. As to the detainee Dr. Aurora Parong, the return further states that a warrant of arrest
was issued against her on August 4, 1982 by the Municipal Court of Bayombong for illegal
possession of a firearm and ammunition. As in all other returns in similar cases, the Solicitor General
asserts "that the privilege of the writ of habeas corpus is unavailing as to them. Courts cannot inquire
into the validity and cause of their arrest and detention" by virtue of the continued suspension, under
Presidential Proclamation No. 2045 (which proclaimed the termination of martial law in the
Philippines), of the privilege of the writ of habeas corpus in the two autonomous regions in Mindanao
and in all other places with respect to persons detained for suspected involvement in crimes related
to national security.

The main opinion confronts the question of whether the issuance of a Presidential Commitment
Order (PCO) has provided the legal basis of the detention of herein detainees following their arrest
for Proclamation No. 2045-covered offenses," and remarks that "this question has to be set at rest
promptly and decisively, if we are to break a seemingly continuous flow of petitions for habeas
corpus, as what had been seen lately of such petitions being filed in this Court one after the other.

I. I submit that the resolution of the issues in this case does not call for the all-encompassing ruling
in the main opinion with its sweeping scope that would reexamine and overturn the benchmark ruling
in Lansang. The limited suspension of the privilege of the writ of habeas corpus in the two instances
provided under Presidential Proclamation No. 2045 has not been challenged in this case. So, what's
the point of an advance declaration that all checks and barriers are down? Lansang recognizes the
greatest deference and respect that is due the President's determination for the necessity of
suspending the privilege of the writ of habeas corpus. But Lansang sets at the same time the
constitutional confines and limits of the President's power to suspend the privilege of the writ and
enunciates the constitutional test, not of the correctness of the President's decision, but that the
President's decision to suspend the privilege not suffer from the constitutional infirmity of
arbitrariness.   Thus, after laying the premise "that every case must depend on its own
6

circumstances," the Court therein thru then Chief Justice Roberto Concepcion held that:

Indeed, the grant of power to suspend the privilege is neither absolute nor
unqualified. The authority conferred by the Constitution, both under the Bill of Rights
and under the Executive Department, is limited and conditional. The precept in the
Bill of Rights establishes a general rule, as well as an exception thereto. What is
more, it postulates the former in the negative, evidently to stress its importance, by
providing that '(t)he privilege of the writ of habeas corpus shall not be suspended ....'
It is only by way of exception that it permits the suspension of the privilege 'in cases
of invasion, insurrection, or rebellion'- or, under Art. VII of the Constitution, 'imminent
danger thereof '- 'when the public safety requires it, in any of which events the same
may be suspended wherever during such period the necessity for such suspension
shall exist.' Far from being fun and plenary, the authority to suspend the privilege of
the writ is thus circumscribed, confined and restricted, not only by the prescribed
setting or the conditions essential to its existence, but, also, as regards the time
when ? the place where it may be exercised. These factors and the aforementioned
setting or conditions mark, establish and define the extent, the confines and the limits
of said power, beyond which it does not exist. And, like the limitations and restrictions
imposed by the Fundamental Law upon the legislative department, adherence
thereto and compliance therewith may, within proper bounds, be inquired into by
courts of justice. Otherwise, the explicit constitutional provisions thereon would be
meaningless. Surely, the framers of our Constitution could not have intended to
engage in such a wasteful exercise in futility.

Much less may the assumption be indulged in when we bear in mind that our political
system is essentially democratic and republican in character and that the suspension
of the privilege affects the most fundamental element of that system. namely,
individual freedom. Indeed, such freedom includes and connotes, as well as
demands, the right of every single member of our citizenry to freely discuss and
 dissent from, as well as criticize and denounce, the views, the policies and the
practices of the government and the party in power that he deems unwise, improper
or inimical to the commonwealth, regardless of whether his own opinion is objectively
correct or not. The untrammelled enjoyment and exercise of such right-which, under
certain conditions, may be a civic duty of the highest order is-vital to the democratic
system and essential to its successful operation and wholesome growth and
development.

Manifestly, however, the liberty guaranteed and protected by our Basic Law is one
enjoyed and exercise, not in derogation thereof, but consistently therewith, and,
hence, within the framework of the social order established by the Constitution and
the context of the Rule of Law. Accordingly, when individual freedom is used to
destroy that social order, by means of force and violence, in defiance of the Rule of
Law such as by rising publicly and taking arms against the government to overthrow
the same, thereby committing the crime of rebellion- there emerges a circumstance
that may warrant a limited withdrawal of the aforementioned guarantee or protection,
by suspending the privilege of the writ of habeas corpus, when public safety requires
it. Although we must before warned against mistaking mere dissent- no matter how
emphatic or intemperate it may be-for dissidence amounting to rebellion or
insurrection, the Court cannot hesitate, much less refuse- when the existence of such
rebellion or insurrection has been fairly established or cannot reasonably be denied-
to uphold the finding of the Executive thereon, without, in effect, encroaching upon a
power vested in him by the Supreme Law of the land and depriving him, to this
extent, of such power, and, therefore, without violating the Constitution and
jeopardizing the very Rule of Law the Court is called upon to epitomize. "  7

II. The crucial issue at bar is that adversely decided by the main opinion, denying petitioners' motion
that the Court order their release on bail, on the ground that the suspension of the privilege of the
writ of habeas corpus for any of the offenses covered by Proclamation No. 2045 "includes, as a
necessary consequence, the withholding for the duration of the suspension of the privilege of the
right to bail" (main opinion, at page 16).

1. I submit that notwithstanding the suspension of the privilege of the writ of habeas corpus and the
issuance on March 9, 1982 of Letter of Instruction No. 1211 that the Presidential Commitment Order
constitutes authority to keep the subject person under detention "until ordered released by the
President or his duly authorized representative" (which is a mere internal instruction to certain
agencies), the higher and superior mandate of the Constitution guarantees the right to bail and vests
the courts with the jurisdiction and judicial power to grant bail which may not be removed nor
diminished nor abdicated. We cannot but so hold, if we are to be true to the fundamental precept
that "The Constitution is a law for rulers and for people equally in war and in peace and covers with
the shield of its protection all classes of men at all times and under all circumstances."

The argument that otherwise the purpose of the suspension of the privilege would be defeated
ignores the overwhelming capability of the State and its military and police forces to keep suspects
under surveillance and the courts' imposition of reasonable conditions in granting bail, such as
periodic reports to the authorities concerned, and prohibiting their going to certain critical areas.

2. The most authoritative pronouncement in this regard is of course none other than the President's
himself. In all the metropolitan newspapers of April 20, 1983, the President is reported to have "said
that Pimentel has been charged with rebellion before the regional trial court of Cebu City and is
therefore under the jurisdiction of the civil court and not only under the jurisdiction of the military by
virtue of the PCO." In a telegram in reply to the appeal of Msgr. Patrick Cronin, Archbishop of
Cagayan de Oro and Misamis Oriental, for lifting of the PCO on Mayor Aquilino Pimentel of Cagayan
de Oro City, the President said that "(T)he disposal of the body of the accused, as any lawyer will
inform you, is now within the powers of the regional trial court of Cebu City and not within the powers
of the President. "

3. This is but in consonance with the majority holding in the leading 1951 cases of Nava vs.
Gatmaitan and Hernandez vs. Montesa   (although it failed one vote short of the required majority of
8

six affirmative votes at the time) as expounded by then Chief Justice Ricardo Paras and Associate
Justice (later Chief Justice) Cesar Bengzon and Associate Justices Pedro Tuason, Alex Reyes and
Fernando Jugo that after formal indictment in court by the filing against them of an information
charging rebellion with multiple murder, etc., accused persons covered by the proclamation of
suspension of the privilege of the writ of habeas corpus are entitled to the right to bail.

4. As stressed by then Chief Justice Ricardo Paras, "(T)he right to bail, along with the right of an
accused to be heard by himself and counsel to be informed of the nature and cause of the
accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to
have compulsory process to secure the attendance of witnesses in his behalf (Article III, Section 1,
Paragraph 17, of the Constitution), tends to aid the accused to prove his innocence and obtain
acquittal. If it be contended that the suspension of the privilege of the writ of habeas corpus includes
the suspension of the distinct right to bail or to be provisionally at liberty, it would a fortiori imply the
suspension of all his other rights (even the right to be tried by a court) that may win for him ultimate
acquittal and, hence, absolute freedom. The latter result is not insisted upon for being patently
untenable. "

Then Chief Justice Paras stressed that "... The privilege of the writ of habeas corpus and the right to
bail guaranteed under the Bill of Rights are separate and co-equal. If the intention of the framers of
the Constitution was that the suspension of the privilege of the writ of habeas corpus carries or
implies the suspension of the right to bail, they would have very easily provided that all persons shall
before conviction be bailable by sufficient sureties, except those charged with capital offenses when
evidence of guilt is strong and except when the privilege of the writ of habeas corpus is suspended.
As stated in the case of Ex Parte Milligan, 4 Wall. 2, 18 L. ed. 297, the Constitution limited the
suspension to only one great right, leaving the rest to remain forever inviolable. "

5. It is noteworthy and supportive of the prevailing stand since 1951 that the other great
constitutional rights remain forever inviolable since the Constitution limited the suspension to only
one great right (of the privilege of the writ of habeas corpus), that there has been no amendment of
the Constitution to curtail the right to bail in case of such suspension notwithstanding the numerous
constitutional amendments adopted after the 1973 Constitution.

6. The late Justice Pedro Tuason emphasized that "(T)o the plea that the security of the State would
be jeopardized by the release of the defendants on bail, the answer is that the existence of danger is
never a justification for courts to tamper with the fundamental rights expressly granted by the
Constitution. These rights are immutable, inflexible, yielding to no pressure of convenience,
expediency or the so-called 'judicial statesmanship.' The Legislature itself cannot infringe them, and
no court conscious of its responsibilities and limitations would do so. If the Bill of Rights are
incompatible with stable government and a menace to the Nation, let the Constitution be amended,
or abolished. It is trite to say that, while the Constitution stands, the courts of justice as the repository
of civil liberty are bound to protect and maintain undiluted individual rights."

7. And former Chief Justice Cesar Bengzon then made the same forceful plea echoed these days by
men of goodwill that respect for constitutional and human rights and adherence to the rule of law
would help in the fight against rebellion and movement for national reconciliation, thus: "And in my
opinion, one of the surest means to ease the uprising is a sincere demonstration of this
Government's adherence to the principles of the Constitution together with an impartial application
thereof to all citizens, whether dissidents or not. Let the rebels have no reason to apprehend that
their comrades now under custody are being railroaded into Muntinglupa, without benefit of those
fundamental privileges which the experience of the ages has deemed essential for the protection of
all persons accused of crime before the tribunal of justice. Give them the assurance that the
judiciary, ever mindful of its sacred mission, will not, thru faulty or misplaced devotion, uphold any
doubtful claims of governmental power in diminution of individual rights, but will always cling to the
principles uttered long ago by Chief Justice Marshall that when in doubt as to the construction of the
Constitution, 'The Courts will favor personal liberty.'"

8. The right to bail cannot just be cancelled out summarily because of the issuance of a PCO In the
case at bar, detainee Dr. Aurora Parong is charged in the municipal court with the crime of illegal
possession of firearm, which is a clearly bailable offense. The charges filed against the other
detainees are likewise for clearly bailable offenses. It is elementary that the right to bail in non-
capital offenses and even in capital offenses where evidence of guilt is not strong will be generally
granted and respected by the courts, "the natural tendency of the courts (being) towards a fair and
liberal appreciation," particularly taking into consideration the record and standing of the person
charged and the unlikelihood of his fleeing the court's jurisdiction.

As the Court held in the leading case of Montano vs. Ocampo   wherein the Supreme Court granted
9

bail to Senator Montano who was charged with multiple murders and frustrated murders:

Brushing aside the charge that the prelimiminary investigation of this case by the
aforesaid Judge was railroaded, the same having been conducted at midnight, a few
hours after the complaint was filed, we are of the opinion that, upon the evidence
adduced in the applicaction for bail in the lower court, as such evidence is recited
lengthily in the present petition and the answer thereto, and extensively analyzed and
discussed in the oral argument, there is not such clear showing of guilt as would
preclude all reasonable probability of any other conclusion.

Exclusion from bail in capital offenses being an exception to the otherwise absolute

right guaranteed by the constitution, the natural tendency of the courts has been
toward a fair and liberal appreciation, rather than otherwise , of the evidence in the
determination of the degree of proof and presumption of guilt necessary to war. rant
a deprivation of that right.

Besides, to deny bail it is not enough that the evidence of guilt is strong; it must also
appear that in case of conviction the defendant 's liability would probably call for a
capital punishment. No clear or conclusive showing before this Court has been
made.

In the evaluation of the evidence the probability of flight is one other important factor
to be taken into account. The sole purpose of confining accusedin jail before
conviction, it has been observed, is to assure his presence at the trial. In other
words, if denial of bail is authorized in capital cases, it is only on the theory that the
proof being strong, the dependant would flee, if he has the opportunity, rather than
face the verdict of the jury. Hence the exception to the fundamental right to be bailed
should be applied in direct ratio to the extent of the probability of evasion of
prosecution.
 The possibility of escape in this case, bearing in mind the defendant's official and
social standing and his other personal circumstances, seems remote if not nil."

In the recent case of Sobremonte vs. Enrile,   the detainee was released upon her filing of the
10

recommended P1,000.00 bail bond for the offense of possession of subversive literature with which
she was charged and the habeas corpus petition, like many others, although dismissed for having
thereby become moot, accomplished the purpose of securing the accused's release from prolonged
detention. The Court had occasion to decry therein that "all the effort, energy and manhours
expended by the parties and their counsel, including this Court, ... could have been avoided had the
officers of the AVSECOM and the ISAFP responded promptly to the inquiries of petitioner instead of
giving her the 'run-around' by referring her from one office to another."

9. "The continuous flow of petitions for habeas corpus" filed with this Court should not be decried nor
discouraged. The Court stands as the guarantor of the constitutional and human rights of all persons
within its jurisdiction and must see to it that the rights are respected and enforced. It is settled in his
jurisdiction that once a deprivation of a constitutional right is shown to exist, the court that rendered
the judgment or before whom the case is pending is ousted of jurisdiction and habeas corpus is the
appropriate remedy to assail the legality of the detention.   So accused persons deprived of the
11

constitutional right of speedy trial have been set free.   And likewise persons detained indefinitely
12

without charges so much so that the detention becomes punitive and not merely preventive in
character are entitled to regain their freedom. The spirit and letter of our Constitution negates as
contrary to the basic precepts of human rights and freedom that a person be detained indefinitely
without any charges.

III. The main opinion invokes "a time of war or grave peril to the nation" (at page 16), oblivious of the
Presidents lifting of martial law under Proclamation No. 2045 on January 17, 1981 and the specific
premises therein set forth that

WHEREAS, the Filipino people, having subdued threats to the stability of

government, public order and security, are aware that the time has come to
consolidate the gains attained by the nation under a state of martial law by assuming
their normal political roles and shaping the national destiny within the framework of
civil government and popular democracy:

WHEREAS, the experience gained by the nation under martial law in subduing
threats to the stability of the government, public order and security, has enabled the
Filipino people to rediscover their confidence in their ability to command the
resources of national unity, patriotism, discipline and sense of common destiny;

WHEREAS, the government and the people are at the same time also aware that the
public safety continues to require a degree of capability to deal adequately with
elements who persist in endeavoring to overthrow the government by violent means
and exploiting every opportunity to disrupt the peaceful and productive labors of the
government; ..."

As to the "self-evident" submittal of the main opinion that "the duty of the judiciary to protect
individual rights must yield to the power of the Executive to protect the State, for if the State
perishes, the Constitution, with the Bill of Rights that guarantees the right to personal liberty,
perishes with it" (at page 16), I can only recall the exhortation of the Holy Father John Paul II in his
address to the Philippine nation on February 17, 1981, thus: "Even in exceptional situations that may
at times arise, one can never justify any violation of the fundamental dignity of the human person or
of the basic rights that safeguard this dignity. Legitimate concern for the security of a nation, as
demanded by the common good, could lead to the temptation of subjugating to the State the human
being and his or her dignity and rights. Any apparent conflict between the exigencies of security and
of the citizens' basic rights must be resolved according to the fundamental principle-upheld always
by the Church- that social organization exists only for the service of man and for the protection of his
dignity, and that it cannot claim to serve the common good when human rights are not safeguaded.
People will have faith in the safeguarding of their security and the promotion of their well-being only
to the extent that they feel truly involved, and supported in their very humanity."

Separate Opinions

FERNANDO, C.J., concurring:

In the result with qualification primarily on the respect that must be accorded the constitutional right
to bail once a case is flied and dissenting as to the overruling of Lansang v. Garcia:

MAKASIAR, J., concurring:

Concuring in the result and in overruling the Lansang case.

ABAD SANTOS, J., concurring:

In the result and in overruling Lansang. I reserve my right on the question of bail.

FERNANDO, C.J., concurring:

Concurring in the result with qualification primarily on the respect that must be accorded the
constitutional right to bail once a case is filed and dissenting as to the overruling of Lansang v.
Garcia.

It does not admit of doubt that the question posed in this petition for the writ of habeas corpus, and in
other similar petitions for that matter, is impressed with significance that calls for the highest degree
of care and circumspection. The result arrived at by the Court is that once a presidential commitment
order is issued, the detention is rendered valid and legal, the right to be released of the person
detained even after the filing of charges being dependent on the President "who may order the
release of a detainee or his being placed under house arrest, as he has done in meritorious
cases."   The exhaustive opinion of the Court penned by Justice de Castro likewise re-examines the
1

Lansang doctrine   which ruled that the suspension of the privilege of the writ of habeas corpus
2

raises a judicial rather than a political question and reverts to the principle announced in the earlier
cases of Barcelon v. Baker   and Montenegro v. Castañeda,   both of which held that the question
3 4

raised is political in character.

I concur in the ruling that while as a general rule preventive detention is an obstacle to judicial
inquiry, this Court is empowered where compelling reasons exist to inquire into the matter.
Moreover, the judiciary once a case has been filed has jurisdiction to act on a petition for bail. I
dissent insofar as the decision overrules Lansang v. Garcia.
1. Petitioners in their application for the writ of liberty assert an infringement of a right that finds
shelter in the fundamental law. This Court, both in normal times and under emergency conditions, is
not susceptible to the accusation that it has not accorded the most careful study to a plea of such
character. Petitioners were heard and their cases decided. In addition to Lansang, People v.
Ferrer,   Aquino Jr. v. Ponce Enrile   and Aquino Jr. v. Military Commission No. 2   may be cited. This
5 6 7

Tribunal then has not been insensible to its duty to render fealty to the applicable mandates of the
Constitution. That is to be true to the primordial concept first announced in the landmark decision
of Marbury v. Madison,   the opinion being rendered by the illustrious Chief Justice Marshall,
8

enunciating the principle of judicial review. Our Constitution is quite clear on the matter. So it was
held in Angara v. Electoral Tribunal,   the first case of transcendental importance under the 1935
9

Charter. It is quite manifest that judicial review is not only a power but a duty.  10

2. Thus the judiciary can be appealed to and in appropriate cases, annul executive or legislative
acts. For as so often stressed, "the Constitution is not only law, but a higher law, to which other law
must bow."   Professor Black went on to state: "Here, I think, we are laboring the obvious. The
11

superior status of the Constitution is clearer even than its standing as law. But if it is of superior
status, and if it is law, then it is law of a superior status. Again, the important thing is not whether
some flaw could be found in the logic by which this was established. The logic of human institutions
is a logic of probability. The important thing is that this concept of the superior status of the
Constitution as law very early became and has since continued to be a standard part of the way in
which the American lawyer and judge and citizen look at their government."   This is not to deny the
12

possibility of judicial interference with policy formulation, better left to the political branches. It is an
entirely different matter of course where the question is one of liberty.

3. An inquiry into the validity of executive or legislative act has been fitly characterized as both
awesome and delicate. Nonetheless, for the judiciary, there is no choice. To repeat, it is a duty to be
performed. This is so especially where the writ of habeas corpus has been invoked. It is then
incumbent on a court to pass on the legality of the detention. As I had occasion to state in my
separate opinion in Aquino Jr. vs. Enrile:   "This Court has to act then. The liberty enshrined in the
13

Constitution, for the protection of which habeas corpus is the appropriate remedy, imposes that
obligation. Its task is clear. It must be performed. That is a trust to which it cannot be recreant.
Whenever the grievance complained of is deprivation of liberty, it is its responsibility to inquire into
the matter and to render the decision appropriate under the circumstances. Precisely, a habeas
corpus petition calls for that response."   It cannot be overemphasized that the writ of habeas
14

corpus, as a constitutional right, it, for eminent commentators, protean in scope. A reference to the
opinion of the Court in Gumabon v. Director of Bureau of Prisons   may not be amiss. Thus: "The
15

writ imposes on judges the grave responsibility of ascertaining whether there is any legal justification
for a deprivation of physical freedom. Unless there be such a showing, the confinement must
thereby cease. "   It continues: "Rightly then could Chafee refer to the writ as 'The most important
16

human rights provision' in the fundamental law. Nor is such praise unique. Cooley spoke of it as
'One of the principal safeguards to personal liberty.' For Willoughby, it is 'the greatest of the
safeguards erected by the civil law against arbitrary and illegal imprisonment by whomsoever
detention may be exercised or ordered.' Burdick echoed a similar sentiment, referring to it as 'One of
the most important bulwarks of liberty.' Fraenkel made it unanimous, for to him. 'Without it much else
would be of no avail.' Thereby the rule of law is assured. A full awareness of the potentialities of the
writ of habeas corpus in the defense of liberty coupled with its limitations may be detected in the
opinions of former Chief Justices Arellano, Avancena, Abad Santos, Paras, Bengzon and [Chief
Justice Concepcion]. It fell to Justice Malcolm's lot, however to emphasize quite a few times the
breadth of its amplitude and of its reach." 17

4. So it is in the United States. As so well put by Justice Brennan in Fay v. Noia:   "We do well to
18

bear in mind the extraordinary prestige of the Great Writ, habeas corpus ad subjiciendum, in Anglo-
American jurisprudence: 'the most celebrated writ in English Law,' 3 Blackstone Commentaries 129.
It is 'a writ antecedent to statute, and throwing its root deep into the genius of our common law * * *.
It is perhaps the most important writ known to the constitutional law of England, affording as it does
a swift and imperative remedy in all cases of illegal restraint and confinement. It is of immemorial
antiquity, an instance of its use occurring in the thirty-third year of Edward I. 'Secretary of State for
Home Affairs v. O'Brien [1923] AC 603, 609 (HL) Received into our own law in the colonial period,
given explicit recognition in the Federal Constitution, Art. I, Sec. 9, cl. 2, incorporated in the first
grant of federal court jurisdiction, Act of September 24, 1978, c 20, sec. 14, 1 State 81, 82, habeas
corpus was earlier confirmed by Chief Justice John Marshall to be a 'Great constitutional privilege.'
Ex parte Bollman and Swartout (US) 4 Cranch 75, 95, 2L ed 554, 561. Only two Terms ago this
Court had occasion to reaffirm the high place of the writ in our jurisprudence: 'We repeat what has
been so truly said of the federal writ: "there is no higher duty than to maintain it unimpaired," Bowen
v. Johnston, 306 US 19, 26, 83 L ed 455, 461, 59 S Ct 442 (1939), and unsuspended, save only in
the cases specified in our Constitution.' Smith v. Bennett, 365 US 708, 713, 6 1 ed 2d 39, 43, 81 s
Ct. 895. " 
19

5. To repeat, it is the ruling of this Court that an issuance of a presidential commitment order imparts
validity to a detention the right to be released of the person detained even after the filing of charges
being dependent on the President who may order such release or his being placed under house
arrest. As I mentioned at the outset, I yield a qualified concurrence. The power of preventive
detention where the privilege of the writ of habeas corpus is suspended has been recognized.   The 20

lifting of martial law unfortunately has not been followed by a restoration of peace and order in
certain sections of the country. In the proclamation lifting martial law, the last paragraph of the
whereas clause spoke of the awareness of the government and the Filipino people of public safety
continuing "to require a degree of capability to deal adequately with elements who persist in
endeavoring to overthrow the government by violent means and exploiting every opportunity to
disrupt [its] peaceful and productive" efforts.   Accordingly, in terminating the state of martial law
21

throughout the Philippines, it was provided: "that the call to the Armed Forces of the Philippines to
prevent or suppress lawless violence, insurrection, rebellion and subversion shall continue to be in
force and effect; and Provided that in the two autonomous regions in Mindanao, upon the request of
the residents therein, the suspension of the privileges of the writ of habeas corpus shall continue;
and in all other places the suspension of the privilege of the writ shall also continue with respect to
persons at present detained as well as others who may hereafter be similarly detained for the crimes
of insurrection or rebellion, subversion; conspiracy or proposal to commit such crimes and for all
other crimes and offenses committed by them in furtherance or on the occasion thereof, or incident
thereto, or in connection therewith; * * *."   That is the basis for the preventive detention of
22

petitioners in this case.

6. The President as commander-in-chief may call out the armed forces to prevent or suppress
lawless violence, invasion, insurrection, or rebellion and in case of invasion, insurrection, or
rebellion, or imminent danger thereof, when the public safety requires it, "may suspend the privilege
of the writ of habeas corpus, or place the Philippines or any part thereof under martial law."  There
23

are thus three alternatives which may be availed to meet a grave public danger to the security of the
state. As pointed out by Chief Justice Concepcion in Lansang, prior to the suspension of the
privilege of the writ in 1971, the armed forces had been called out, but such a move "proved
inadequate to attain the desired result. Of the two (2) other alternatives, the suspension of the
privilege is the least harsh."   Even if only the first alternative were resorted to, the executive could
24

still exercise the power of preventive detention. Moyer v. Peabody,   decided by the American
25

Supreme Court, the opinion being penned by Justice Holmes, may be cited. According to the
statement of the facts of that case, "it appeared that the governor had declared a county to be in a
state of insurrection, had called out troops to put down the trouble, and had ordered that the plaintiff
should be arrested as a leader of the outbreak, and should be detained until he could be discharged
with safety, and that then he should be delivered to the civil authorities, to be dealt with according to
law."   On those facts the American Supreme Court held that preventive detention was allowable,
26
the test of its validity being one of good faith. The state governor then could "make the ordinary use
of the soldiers to that end; that he may kill persons who resist, and, of course, that he may use the
milder measure of seizing the bodies of those whom he considers to stand in the way of restoring
peace. Such arrests are not necessarily for punishment, but are by way of precaution, to prevent the
exercise of hostile power. So long as such arrests are made in good faith and in the honest belief
that they are needed in order to head the insurrection off, the governor is the final judge and cannot
be subjected to an action after he is out of office, on the ground that he had not reasonable ground
for his belief."   The last paragraph of Justice Holmes opinion was even more emphatic: "When it
27

comes to a decision by the head of the state upon a matter involving its life, the ordinary rights of
individuals must yield to what he deems the necessities of the moment. Public danger warrants the
substitution of executive process for judicial process. See Keely v. Sanders, 99 U.S. 441, 446, 25 L.
ed. 327, 328. This was admitted with regard to killing men in the actual clash of arms; and we think it
obvious, although it was disputed, that the same is true of temporary detention to prevent
apprehended harm. As no one would deny that there was immunity for ordering a company to fire
upon a mob in insurrection, and that a state law authorizing the governor to deprive citizens of life
under such circumstances was consistent with the 14th Amendment, we are of opinion that the
same is true of a law authorizing by implication that was done in this case."   Nonetheless, while
28

preventive detention is a proper measure to cope with the danger arising from the insurrection or
rebellion, it may continue for such length of time as to make it punitive in character. If such were the
case, I am not prepared to yield concurrence to the view that this Court is devoid of the power in a
habeas corpus proceeding to inquire into the legality of the detention. As to when such a stage is
reached cannot be set forth with precision. The test would be an appraisal of the environmental facts
of each case. This is not to deny that the presumption must be in favor not only of the good faith
characterizing the presidential action but of the absence of any arbitrary taint in so ordering
preventive detention. It is out of excess of caution and due to the belief that habeas corpus as a writ
of liberty should not be unnecessarily curtailed that I feel compelled to qualify my concurrence in that
respect.

7. Nor is this all. Once a case is filed, the party detained may avail himself of the right to bail. If there
be such a petition, the court has jurisdiction to grant or to deny bail in accordance with the
constitutional provision.   Inasmuch as the return to the writ filed by the Solicitor General states that
29

a warrant of arrest against detainee Dra. Aurora Parong was issued on August 4, 1982, by the
Municipal Court of Bayombong, for illegal possession of firearm and ammunition, then clearly she
has a right to invoke such right, notwithstanding the suspension of the privilege of the writ. So I did
argue as counsel in Hernandez v. Montesa,   where a majority of this Court with one vote lacking to
30

make their conclusion doctrinal agreed with such submission. There was adherence to such a view
in my separate opinions in Lansang   and in Buscayno v. Enrile,   I do again and to that extent
31 32

dissent.

8. It may be worthwhile to touch briefly on the exercise of power of preventive detention in other
jurisdictions. The retired Lord President of the Federal Court of Malaysia Tun Mohamed Suffian in
his work on the Malaysian constitution, spoke of the emergency powers of the executive, the Yang
Dipertuan Agung in this wise: " If the Yang Dipertuan Agung (acting on Cabinet advice) is satisfied
that a grave emergency exists whereby the security or economic life of the Federation or any part
thereof is threatened, article 150 empowers him to issue a proclamation of emergency. He has done
so thrice: first, to meet the emergency caused by Indonesian confrontation, secondly, to meet the
emergency caused by the political crisis arising out of the position of the Chief Minister of Sarawak
and, thirdly, to meet the emergency caused as a result of the violence that erupted on 13th May,
1969. (The 1948-1960 emergency was proclaimed under pre-independence law, not under the
constitution). If a proclamation of emergency is issued when Parliament is not sitting, the Yang
Dipertuan Agung must summon Parliament as soon as may be practicable. Until both Houses of
Parliament are sitting, he may promulgate ordinances having the force of law, if satisfied that
immediate action is required."   By virtue of such competence, preventive detention may be
33
ordered.   The power of preventive detention is likewise recognized in India. According to Professor
34

Jain, in a leading article, it "prevails in many democratic countries and in some form or other, at one
time or other, each democratic country has taken recourse to preventive detention, especially during
the war period."   He mentioned the United States Internal Security Act enacted by its Congress in
35

1950 for emergency detention "during an emergency of war, invasion or domestic insurrection of a
person about whom there is a reasonable ground to believe that he would probably engage in acts
of sabotage or espionage. The U.S. Constitution also provides for suspension of habeas corpus
during rebellion or invasion if public safety so requires."   He likewise referred to England, citing
36

Regulation 14B of the Defense of Realm Act Regulations, 1914, during World War I and Regulation
18B of the Defense Regulations during World War II which according to him led to the celebrated
case of Liversidge v. Anderson.   Then he turned to his own country: "In India, because of unstable
37

law and order situation, preventive detention has been in vogue since its independence in 1947.
After the commencement of the Constitution, Parliament enacted the Preventive Detention Act,
1950, to lay down a legal framework for preventive detention on certain grounds. The present day
law for the purpose is the Maintenance of Internal Security Act, 1971. A salient feature of the law of
preventive detention in India has been to confer a very broad discretion on the administrative
authority to order preventive detention of a person in certain circumstances."   He spoke of the
38

relevant constitutional provisions having a bearing on preventive detention: "A law for preventive
detention can be made by Parliament exclusively under entry 9, List 1, for reasons connected with
'defensee', 'foreign affairs' or the 'security of India.' Further, under entry 3, List 111, Parliament and
the State Legislatures can concurrently make a law for preventive detention for reasons connected
with the " security of a State', maintenance of public order,' or 'maintenance of supplies and services
essential to the community.' Parliament thus has a wide legislative jurisdiction in the matter as it can
enact a law of preventive detention for reasons connected with all the six heads mentioned above.
The Preventive Detention Act, 1950, and now the Maintenance of Internal Security Act, 1971, have
been enacted by Parliament providing for preventive detention for all these six heads."   For him the
39

law of preventive detention in India "has therefore been too much administrative-ridden and the
scope of judicial review has been very much limited."   He made a careful study of the cases on
40

preventive detention in India. As he pointed out, "the range and magnitude of administrative control
over the individual's personal liberty is very vast, and the range of judicial control is very restrictive,
as the basic question, whether a person should be detained or not on the facts and circumstances of
the case, hes within the scope of administrative discretion and beyond judicial
review."   Nonetheless, the Supreme Court of India, as he stressed, "in the interest or maintaining
41

constitutionalism," has been able to take "a somewhat broad view of its restricted powers, and has
given whatever relief it can to the detained persons."   For me that approach has much to
42

recommend it. This is not to deny that in the event there is a misapprehension as to the actual facts
that led to the preventive detention, the plea for remedial action should, in the first instance, be
addressed to the President. Very likely, there will be an affirmative response. Even then, the
assurance to a party feeling aggrieved that there could still be resort to judicial review, even if
utilized only in rare and exceptional cases, may conduce to a deeper sense of loyalty to the existing
constitutional order on the part of the misguided or disaffected individuals. Hence, to repeat, this
qualified concurrence on my part.

9. The opinion of the Court, however, did not stop at dismissing the petition on the ground that the
issuance of a presidential commitment order validates the preventive detention of petitioners. It went
farther by reexamining the unanimous ruling in Lansang to the effect that the suspension of the
privilege of the writ of habeas corpus raises a judicial rather than a political question and holding that
it is no longer authoritative. With due respect, I cannot agree to such a conclusion. In the first place,
there was no need to go that far. For me, at least, the rationale that this Court must accord
deference to a presidential committment order suffices for the decision of this case. Nor would I limit
my dissent on that ground alone. It is for me, and again I say this with due respect, deplorable and
unjustifiable for this Court to turn its back on a doctrine that has elicited praise and commendation
from eminent scholars and jurists here and abroad.
10. That is easily understandable. The learned, comprehension and unanimous Lansang opinion
penned by Chief Justice Concepcion concurred in by all the Justices,   to my mind, explains with
43

lucidity and force why the question is judicial rather than political. Thus: "Indeed, the grant of power
to suspend the privilege is neither absolute nor unqualified. The authority conferred by the
Constitution, both under the Bill of Rights and under the Executive Department, is limited and
conditional. The precept in the Bill of Rights establishes a general rule, as well as an exception
thereto. What is more, it postulates the former in the negative, evidently to stress its importance, by
providing that '(t)he privilege of the writ of habeas corpus shall not be suspended * * *.' It is only by
way of exception that it permits the suspension of the privilege 'in cases of invasion, insurrection, or
rebellion'- or, under Art. VII of the Constitution, 'imminent danger thereof when the public safety
requires it, in any of which events the same may be suspended wherever during such period the
necessity for such suspension shall exist.' For from being full and plenary, the authority to suspend
the privilege of the writ is thus circumscribed, confined and restricted, not only by the prescribed
setting or the conditions essential to its existence, but, also, as regards the time when and the place
where it may be exercised. These factors and the aforementioned setting or conditions mark,
establish and define the extent, the confines and the limits of said power, beyond which it does not
exist. And, like the limitations and restrictions imposed by the Fundamental Law upon the legislative
department, adherence thereto and compliance therewith may, within proper bounds, be inquired
into by courts of justice. Otherwise, the explicit constitutional provisions thereon would be
meaningless. Surely, the framers of our Constitution could not have intended to engage in such a
wasteful exercise in futility."   The then Chief Justice continued: "Much less may the assumption be
44

indulged in when we bear in mind that our political system is essentially democratic and republican
in character and that the suspension of the privilege affects the most fundamental element of that
system, namely, individual freedom. Indeed, such freedom includes and connotes, as well as
demands, the right of every single member of our citizenry to freely discuss and dissent from, as well
as criticize and denounce, the views, the policies and the practices of the government and the party
in power that he deems unwise, improper or inimical to the commonwealth, regardless of whether
his own opinion is objectively correct or not. The untrammelled enjoyment and exercise of such right-
which, under certain conditions, may be a civic duty of the highest order- is vital to the democratic
system and essential to its successful operation and wholesome growth and development."  45

11. One of the merits of the ponencia of Chief Justice Concepcion is that it is infused with a sense of
realism. These are his words: "Manifestly, however, the liberty guaranteed and protected by our
Basic Law is one enjoyed and exercised, not in derogation thereof, but consistently therewith, and,
hence, within the framework of the social order established by the Constitution and the context of the
Rules of Law. Accordingly, when individual freedom is used to destroy that social order, by means of
force and violence, in defiance of the Rule of Law- such as by rising publicly and taking arms against
the government to overthrow the same, thereby committing the crime of rebellion there emerges a
circumstance that may warrant a limited withdrawal of the aforementioned guarantee or protection,
by suspending the privilege of the writ of habeas corpus, when public safety requires it. Although we
must be forewarned against mistaking mere dissent-no matter how emphatic or intemperate it may
be-fore dissidence amounting to rebellion or insurrection, the Court cannot hesitate, much less-
refuse-when the existence of such rebellion or insurrection has been fairly established or cannot
reasonably be denied-to uphold the finding of the Executive thereon, without, in effect, encroaching
upon a power vested in him by the Supreme Law of the land and depriving him, to this extent, of
such power, and, therefore, without violating the Constitution and jeopardizing the very Rule of Law
the Court is called upon to epitomize." 46

12. After which this Court, as set forth in the Lansang opinion, considered "the precise nature" of its
function: "Article VII of the Constitution vests in the Executive the power to suspend the privilege of
the writ of habeas corpus under specified conditions. Pursuant to the principle of separation of
powers underlying our system of government, the Executive is supreme within his own sphere.
However, the separation of powers, under the Constitution, is not absolute. What is more, it goes
hand in hand with the system of checks and balances, under which the Executive is supreme, as
regards the suspension of the privilege, but 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."   Further: "In the
47

exercise of such authority, the function of the Court is merely to check-not to supplant-the Executive,
or to ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction, not to
exercise the power vested in him or to determine the wisdom of his act. To be sure, the power of the
Court to determine the validity of the contested proclamation is far from being Identical to, or even
comparable with, its power over ordinary civil or criminal cases elevated thereto by ordinary appeal
from inferior courts, in which cases the appellate court has all of the powers of the court of
origin."   It is clear the competence of this Court to pass upon the validity of the suspension of the
48

privilege of the writ is confined within limits that preclude the assumption of power that rightfully
belongs to the Executive. There would then be, to my mind, no sufficient Justification to retreat from
a position that assures judicial participation on a matter of momentous consequence. Moreover, to
the extent that such a move has had the benefit of judicial appraisal, and thereafter approval, to that
extent there may be less valid opposition and hopefully greater understanding of why such a step
had to be taken.

13. With Lansang overruled, the doctrine that the suspension of the privilege of the writ announced
in Barcelon v. Baker   and Montenegro v. Castañeda   will be revived. This for me is unfortunate.
49 50

The Montenegro decision, as I had occasion to state "owed its existence to the compulsion exerted
by Barcelon v. Baker, a 1905 decision. This Court was partly misled by an undue reliance in the
latter case on what it considered to be authoritative pronouncements from such illustrious American
jurists as Marshall, Story, and Taney. That is to misread what was said by them. This is most evident
in the case of Chief Justice Marshall, whose epochal Marbury v. Madison was cited. Why that was
so is difficult to understand. For it speaks to the contrary. It was by virtue of this decision that the
function of judicial review owes its origin notwithstanding the absence of any explicit provision in the
American Constitution empowering the courts to do so. Thus: 'It is emphatically the province and
duty of the judicial department to say what the law is. Those who apply the rule to particular cases,
must of necessity expound and interpret that rule. If two laws conflict with each other, the courts
must decide on the operation of each. So if a law be in opposition to the constitution; if both the law
and the constitution apply to a particular case, so that the court must either decide that case
conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding
the law; the court must determine which of these conflicting rules governs the case. This is of the
very essence of judicial duty. If, then, the courts are to regard the constitution, and the constitution is
superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must
govern the case to which they both apply.'"   The opinion went on to say: "Nor is the excerpt from
51

Justice Story, speaking for the United States Supreme Court, in Martin v. Mott, as made clear in the
opinion of the Chief Justice, an authority directly in point. There, a militiaman had been convicted of
failing to respond to a call, made under the Act of 1795, to serve during the War of 1812. His
property was taken to satisfy the judgment. He brought an action of replevin. The American
Constitution empowers its Congress 'to provide for calling forth the Militia' in certain cases, and
Congress did provide that in those cases the President should have authority to make the call." All
that Justice Story did in construing the statute in the light of the language and purpose of her
Constitution was to recognize the authority of the American President to decide whether the
exigency has arisen. In stating that such power was exclusive and thus had a conclusive effect, he
relied on the language employed, impressed with such a character. The constitutional provision on
the suspension of the privilege of the writ is, as shown, anything but that. Chief Justice Taney
in Luther v. Borden, likewise had to deal with a situation involving the calling out of the militia. As a
matter of fact, an eminent commentator speaking of the two above decisions had this apt
observation: "The common element in these opinions would seem to be a genuine judicial reluctance
to speak in a situation where the voice of the Court, even if heard, could not have any effect. More
than this, both Story and Taney seem to share the suspicion, unusual in them, that under a popular
form of government there are certain questions that the political branches must be trusted to answer
with finality. What was said next is even more pertinent. Thus: 'It would be dangerous and
misleading to push the principles of these cases too far, especially the doctrine of "political
questions" as implied in Luther v. Borden. Given the opportunity to afford a grievously injured citizen
relief from a palpably unwarranted use of presidential or military power, especially when the question
at issue falls in the penumbra between the "political" and the "justiciable", the Court will act as if it
had never heard of this doctrine and its underlying assumption that there are some powers against
which the judiciary simply cannot be expected to act as the last line of defense.' It would thus seem
evident that support for the hitherto prevailing Montenegro ruling was rather frail. Happily, with our
decision, it is no longer capable of the mischief to which it does lend itself of an undue diminution of
judicial power to the prejudice of constitutional rights." 
52

14. An opinion of a court, especially this Tribunal, should not ignore the environmental facts which
gave rise to a litigation where the issues arise from problems inseparable from national security.
There is, in addition, the need to take into consideration the pressure of contemporary events. For as
has so often been stressed, judicial process does not take place in a social void. The questions
before the Court are to be viewed with full awareness of the consequences attendant to the decision
reached. As so tersely expressed by Justice Tuason in Araneta v. Dinglasan:"   "We test a rule by its
53

results."   More often than not especially during times of stress, it is inescapable that efforts be made
54

to reconcile time-tested principles to contemporary problems. The judiciary is called upon to do its
part. There is wisdom in these words of Justice Tuason from the same opinion: "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.'"   To repeat, I accord the fullest respect to the mode and manner in which my brethren
55

performed their duty and discharged their responsibility in passing upon the transcendental question
raised in this petition. With the basic premise of robust concern for individual rights to which I have
been committed,however, I have no choice except to vote the way I did, even if for those whose
opinions I value conformity with the hitherto unquestioned verities may at times prove to be less than
adequate to meet the exigencies of the turbulent present.

TEEHANKEE, J., dissenting:

I am constrained to dissent from the all-encompassing scope of the main opinion of Mr. Justice de
Castro which would overturn the landmark doctrine of Lansang vs. Garcia   which upheld the
1

Supreme Court's authority to inquire into the existence of factual bases for the President's
suspension of the privilege of the writ of habeas corpus in order to determine the constitutional
sufficiency thereof and would revert to the retrogressive and colonial era ruling of Barcelon vs.
Baker   and Montenegro vs. Castañeda   that the President's decision to so suspend the privilege of
2 3

the writ "is final and conclusive upon the courts and all other persons," and would further deny the
right to bail even after the filing of charges in court to persons detained under Presidential
Commitment Orders.

This case, as in other like cases, focuses on the grievances that persons detained or charged for the
crimes of insurrection, rebellion, subversion, conspiracy or proposal to commit such crimes,
invariably bring to this Court. They complain, as petitioners do here, of being arrested without any
warrant of arrest; of being informed of purported telegrams concerning the issuance of a Presidential
Commitment Order PCO authorizing their arrest and detention, but that they are not given a copy of
such PCO nor notified of its contents, raising doubts whether such PCO has in fact been issued; of
being kept in isolation or transferred to so-called "safehouses" and being denied of their
constitutional right to counsel and to silence; of prolonged detention without charges; "of a seeming
deliberate and concerted effort by respondents to conceal from counsel and relatives the detainees'
place of detention, raising the apprehension that respondents are using force, violence, threat,
intimidation and other means which vitiate free will to obtain confessions and statements from the
detainees in violation of their constitutional rights;" and of their counsel and families undergoing
great difficulties in locating or having access to them (main opinion at p. 3).

The State through the Solicitor General on the other hand invariably denies all such charges and
submits affidavits of the arresting officers and detention custodian that detainees are afforded decent
and humane treatment, further countering that such claims are merely calculated to arouse
sympathy and as propaganda against the Government and its institutions.

In many such cases, however, the Court in issuing the writ of habeas corpus requiring respondents
to make a return of the writ includes a resolution, in recognition of the detainees' constitutional rights,
"to allow counsel for petitioners to visit and confer with the detainee(s) in an atmosphere of
confidentiality consistent with reasonable security measures which respondents may impose."   In 4

other cases where respondents military officials have allegedly denied having in their custody the
person(s) detained, the Court has issued its resolution "on the assumption that the detained person
is in the custody of respondents, that there be due observance and respect of his right to counsel
and other constitutional rights by respondents."  5

Respondents' return through the Solicitor General in the case at bar states that the detainees are all
detained by virtue of a Presidential Commitment Order issued on July 12, 1982 (several days after
their arrest without warrant on July 6 and 7, 1982) and that corresponding charges against the
detainees were filed in court and before the Acting Provincial Fiscal of Nueva Viscaya where they
are pending. As to the detainee Dr. Aurora Parong, the return further states that a warrant of arrest
was issued against her on August 4, 1982 by the Municipal Court of Bayombong for illegal
possession of a firearm and ammunition. As in all other returns in similar cases, the Solicitor General
asserts "that the privilege of the writ of habeas corpus is unavailing as to them. Courts cannot inquire
into the validity and cause of their arrest and detention" by virtue of the continued suspension, under
Presidential Proclamation No. 2045 (which proclaimed the termination of martial law in the
Philippines), of the privilege of the writ of habeas corpus in the two autonomous regions in Mindanao
and in all other places with respect to persons detained for suspected involvement in crimes related
to national security.

The main opinion confronts the question of whether the issuance of a Presidential Commitment
Order (PCO) has provided the legal basis of the detention of herein detainees following their arrest
for Proclamation No. 2045-covered offenses," and remarks that "this question has to be set at rest
promptly and decisively, if we are to break a seemingly continuous flow of petitions for habeas
corpus, as what had been seen lately of such petitions being filed in this Court one after the other.

I. I submit that the resolution of the issues in this case does not call for the all-encompassing ruling
in the main opinion with its sweeping scope that would reexamine and overturn the benchmark ruling
in Lansang. The limited suspension of the privilege of the writ of habeas corpus in the two instances
provided under Presidential Proclamation No. 2045 has not been challenged in this case. So, what's
the point of an advance declaration that all checks and barriers are down? Lansang recognizes the
greatest deference and respect that is due the President's determination for the necessity of
suspending the privilege of the writ of habeas corpus. But Lansang sets at the same time the
constitutional confines and limits of the President's power to suspend the privilege of the writ and
enunciates the constitutional test, not of the correctness of the President's decision, but that the
President's decision to suspend the privilege not suffer from the constitutional infirmity of
arbitrariness.   Thus, after laying the premise "that every case must depend on its own
6

circumstances," the Court therein thru then Chief Justice Roberto Concepcion held that:
Indeed, the grant of power to suspend the privilege is neither absolute nor
unqualified. The authority conferred by the Constitution, both under the Bill of Rights
and under the Executive Department, is limited and conditional. The precept in the
Bill of Rights establishes a general rule, as well as an exception thereto. What is
more, it postulates the former in the negative, evidently to stress its importance, by
providing that '(t)he privilege of the writ of habeas corpus shall not be suspended ....'
It is only by way of exception that it permits the suspension of the privilege 'in cases
of invasion, insurrection, or rebellion'- or, under Art. VII of the Constitution, 'imminent
danger thereof '- 'when the public safety requires it, in any of which events the same
may be suspended wherever during such period the necessity for such suspension
shall exist.' Far from being fun and plenary, the authority to suspend the privilege of
the writ is thus circumscribed, confined and restricted, not only by the prescribed
setting or the conditions essential to its existence, but, also, as regards the time
when ? the place where it may be exercised. These factors and the aforementioned
setting or conditions mark, establish and define the extent, the confines and the limits
of said power, beyond which it does not exist. And, like the limitations and restrictions
imposed by the Fundamental Law upon the legislative department, adherence
thereto and compliance therewith may, within proper bounds, be inquired into by
courts of justice. Otherwise, the explicit constitutional provisions thereon would be
meaningless. Surely, the framers of our Constitution could not have intended to
engage in such a wasteful exercise in futility.

Much less may the assumption be indulged in when we bear in mind that our political
system is essentially democratic and republican in character and that the suspension
of the privilege affects the most fundamental element of that system. namely,
individual freedom. Indeed, such freedom includes and connotes, as well as
demands, the right of every single member of our citizenry to freely discuss and
dissent from, as well as criticize and denounce, the views, the policies and the
practices of the government and the party in power that he deems unwise, improper
or inimical to the commonwealth, regardless of whether his own opinion is objectively
correct or not. The untrammelled enjoyment and exercise of such right-which, under
certain conditions, may be a civic duty of the highest order is-vital to the democratic
system and essential to its successful operation and wholesome growth and
development.

Manifestly, however, the liberty guaranteed and protected by our Basic Law is one
enjoyed and exercise, not in derogation thereof, but consistently therewith, and,
hence, within the framework of the social order established by the Constitution and
the context of the Rule of Law. Accordingly, when individual freedom is used to
destroy that social order, by means of force and violence, in defiance of the Rule of
Law such as by rising publicly and taking arms against the government to overthrow
the same, thereby committing the crime of rebellion- there emerges a circumstance
that may warrant a limited withdrawal of the aforementioned guarantee or protection,
by suspending the privilege of the writ of habeas corpus, when public safety requires
it. Although we must before warned against mistaking mere dissent- no matter how
emphatic or intemperate it may be-for dissidence amounting to rebellion or
insurrection, the Court cannot hesitate, much less refuse- when the existence of such
rebellion or insurrection has been fairly established or cannot reasonably be denied-
to uphold the finding of the Executive thereon, without, in effect, encroaching upon a
power vested in him by the Supreme Law of the land and depriving him, to this
extent, of such power, and, therefore, without violating the Constitution and
jeopardizing the very Rule of Law the Court is called upon to epitomize. "  7
II. The crucial issue at bar is that adversely decided by the main opinion, denying petitioners' motion
that the Court order their release on bail, on the ground that the suspension of the privilege of the
writ of habeas corpus for any of the offenses covered by Proclamation No. 2045 "includes, as a
necessary consequence, the withholding for the duration of the suspension of the privilege of the
right to bail" (main opinion, at page 16).

1. I submit that notwithstanding the suspension of the privilege of the writ of habeas corpus and the
issuance on March 9, 1982 of Letter of Instruction No. 1211 that the Presidential Commitment Order
constitutes authority to keep the subject person under detention "until ordered released by the
President or his duly authorized representative" (which is a mere internal instruction to certain
agencies), the higher and superior mandate of the Constitution guarantees the right to bail and vests
the courts with the jurisdiction and judicial power to grant bail which may not be removed nor
diminished nor abdicated. We cannot but so hold, if we are to be true to the fundamental precept
that "The Constitution is a law for rulers and for people equally in war and in peace and covers with
the shield of its protection all classes of men at all times and under all circumstances."

The argument that otherwise the purpose of the suspension of the privilege would be defeated
ignores the overwhelming capability of the State and its military and police forces to keep suspects
under surveillance and the courts' imposition of reasonable conditions in granting bail, such as
periodic reports to the authorities concerned, and prohibiting their going to certain critical areas.

2. The most authoritative pronouncement in this regard is of course none other than the President's
himself. In all the metropolitan newspapers of April 20, 1983, the President is reported to have "said
that Pimentel has been charged with rebellion before the regional trial court of Cebu City and is
therefore under the jurisdiction of the civil court and not only under the jurisdiction of the military by
virtue of the PCO." In a telegram in reply to the appeal of Msgr. Patrick Cronin, Archbishop of
Cagayan de Oro and Misamis Oriental, for lifting of the PCO on Mayor Aquilino Pimentel of Cagayan
de Oro City, the President said that "(T)he disposal of the body of the accused, as any lawyer will
inform you, is now within the powers of the regional trial court of Cebu City and not within the powers
of the President. "

3. This is but in consonance with the majority holding in the leading 1951 cases of Nava vs.
Gatmaitan and Hernandez vs. Montesa   (although it failed one vote short of the required majority of
8

six affirmative votes at the time) as expounded by then Chief Justice Ricardo Paras and Associate
Justice (later Chief Justice) Cesar Bengzon and Associate Justices Pedro Tuason, Alex Reyes and
Fernando Jugo that after formal indictment in court by the filing against them of an information
charging rebellion with multiple murder, etc., accused persons covered by the proclamation of
suspension of the privilege of the writ of habeas corpus are entitled to the right to bail.

4. As stressed by then Chief Justice Ricardo Paras, "(T)he right to bail, along with the right of an
accused to be heard by himself and counsel to be informed of the nature and cause of the
accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to
have compulsory process to secure the attendance of witnesses in his behalf (Article III, Section 1,
Paragraph 17, of the Constitution), tends to aid the accused to prove his innocence and obtain
acquittal. If it be contended that the suspension of the privilege of the writ of habeas corpus includes
the suspension of the distinct right to bail or to be provisionally at liberty, it would a fortiori imply the
suspension of all his other rights (even the right to be tried by a court) that may win for him ultimate
acquittal and, hence, absolute freedom. The latter result is not insisted upon for being patently
untenable. "

Then Chief Justice Paras stressed that "... The privilege of the writ of habeas corpus and the right to
bail guaranteed under the Bill of Rights are separate and co-equal. If the intention of the framers of
the Constitution was that the suspension of the privilege of the writ of habeas corpus carries or
implies the suspension of the right to bail, they would have very easily provided that all persons shall
before conviction be bailable by sufficient sureties, except those charged with capital offenses when
evidence of guilt is strong and except when the privilege of the writ of habeas corpus is suspended.
As stated in the case of Ex Parte Milligan, 4 Wall. 2, 18 L. ed. 297, the Constitution limited the
suspension to only one great right, leaving the rest to remain forever inviolable. "

5. It is noteworthy and supportive of the prevailing stand since 1951 that the other great
constitutional rights remain forever inviolable since the Constitution limited the suspension to only
one great right (of the privilege of the writ of habeas corpus), that there has been no amendment of
the Constitution to curtail the right to bail in case of such suspension notwithstanding the numerous
constitutional amendments adopted after the 1973 Constitution.

6. The late Justice Pedro Tuason emphasized that "(T)o the plea that the security of the State would
be jeopardized by the release of the defendants on bail, the answer is that the existence of danger is
never a justification for courts to tamper with the fundamental rights expressly granted by the
Constitution. These rights are immutable, inflexible, yielding to no pressure of convenience,
expediency or the so-called 'judicial statesmanship.' The Legislature itself cannot infringe them, and
no court conscious of its responsibilities and limitations would do so. If the Bill of Rights are
incompatible with stable government and a menace to the Nation, let the Constitution be amended,
or abolished. It is trite to say that, while the Constitution stands, the courts of justice as the repository
of civil liberty are bound to protect and maintain undiluted individual rights."

7. And former Chief Justice Cesar Bengzon then made the same forceful plea echoed these days by
men of goodwill that respect for constitutional and human rights and adherence to the rule of law
would help in the fight against rebellion and movement for national reconciliation, thus: "And in my
opinion, one of the surest means to ease the uprising is a sincere demonstration of this
Government's adherence to the principles of the Constitution together with an impartial application
thereof to all citizens, whether dissidents or not. Let the rebels have no reason to apprehend that
their comrades now under custody are being railroaded into Muntinglupa, without benefit of those
fundamental privileges which the experience of the ages has deemed essential for the protection of
all persons accused of crime before the tribunal of justice. Give them the assurance that the
judiciary, ever mindful of its sacred mission, will not, thru faulty or misplaced devotion, uphold any
doubtful claims of governmental power in diminution of individual rights, but will always cling to the
principles uttered long ago by Chief Justice Marshall that when in doubt as to the construction of the
Constitution, 'The Courts will favor personal liberty.'"

8. The right to bail cannot just be cancelled out summarily because of the issuance of a PCO In the
case at bar, detainee Dr. Aurora Parong is charged in the municipal court with the crime of illegal
possession of firearm, which is a clearly bailable offense. The charges filed against the other
detainees are likewise for clearly bailable offenses. It is elementary that the right to bail in non-
capital offenses and even in capital offenses where evidence of guilt is not strong will be generally
granted and respected by the courts, "the natural tendency of the courts (being) towards a fair and
liberal appreciation," particularly taking into consideration the record and standing of the person
charged and the unlikelihood of his fleeing the court's jurisdiction.

As the Court held in the leading case of Montano vs. Ocampo   wherein the Supreme Court granted
9

bail to Senator Montano who was charged with multiple murders and frustrated murders:

Brushing aside the charge that the prelimiminary investigation of this case by the
aforesaid Judge was railroaded, the same having been conducted at midnight, a few
hours after the complaint was filed, we are of the opinion that, upon the evidence
 adduced in the applicaction for bail in the lower court, as such evidence is recited
lengthily in the present petition and the answer thereto, and extensively analyzed and
discussed in the oral argument, there is not such clear showing of guilt as would
preclude all reasonable probability of any other conclusion.

Exclusion from bail in capital offenses being an exception to the otherwise absolute

right guaranteed by the constitution, the natural tendency of the courts has been
toward a fair and liberal appreciation, rather than otherwise , of the evidence in the
determination of the degree of proof and presumption of guilt necessary to war. rant
a deprivation of that right.

Besides, to deny bail it is not enough that the evidence of guilt is strong; it must also
appear that in case of conviction the defendant 's liability would probably call for a
capital punishment. No clear or conclusive showing before this Court has been
made.

In the evaluation of the evidence the probability of flight is one other important factor
to be taken into account. The sole purpose of confining accusedin jail before
conviction, it has been observed, is to assure his presence at the trial. In other
words, if denial of bail is authorized in capital cases, it is only on the theory that the
proof being strong, the dependant would flee, if he has the opportunity, rather than
face the verdict of the jury. Hence the exception to the fundamental right to be bailed
should be applied in direct ratio to the extent of the probability of evasion of
prosecution.

The possibility of escape in this case, bearing in mind the defendant's official and
social standing and his other personal circumstances, seems remote if not nil."

In the recent case of Sobremonte vs. Enrile,   the detainee was released upon her filing of the
10

recommended P1,000.00 bail bond for the offense of possession of subversive literature with which
she was charged and the habeas corpus petition, like many others, although dismissed for having
thereby become moot, accomplished the purpose of securing the accused's release from prolonged
detention. The Court had occasion to decry therein that "all the effort, energy and manhours
expended by the parties and their counsel, including this Court, ... could have been avoided had the
officers of the AVSECOM and the ISAFP responded promptly to the inquiries of petitioner instead of
giving her the 'run-around' by referring her from one office to another."

9. "The continuous flow of petitions for habeas corpus" filed with this Court should not be decried nor
discouraged. The Court stands as the guarantor of the constitutional and human rights of all persons
within its jurisdiction and must see to it that the rights are respected and enforced. It is settled in his
jurisdiction that once a deprivation of a constitutional right is shown to exist, the court that rendered
the judgment or before whom the case is pending is ousted of jurisdiction and habeas corpus is the
appropriate remedy to assail the legality of the detention.   So accused persons deprived of the
11

constitutional right of speedy trial have been set free.   And likewise persons detained indefinitely
12

without charges so much so that the detention becomes punitive and not merely preventive in
character are entitled to regain their freedom. The spirit and letter of our Constitution negates as
contrary to the basic precepts of human rights and freedom that a person be detained indefinitely
without any charges.

III. The main opinion invokes "a time of war or grave peril to the nation" (at page 16), oblivious of the
Presidents lifting of martial law under Proclamation No. 2045 on January 17, 1981 and the specific
premises therein set forth that
 WHEREAS, the Filipino people, having subdued threats to the stability of
government, public order and security, are aware that the time has come to
consolidate the gains attained by the nation under a state of martial law by assuming
their normal political roles and shaping the national destiny within the framework of
civil government and popular democracy:

WHEREAS, the experience gained by the nation under martial law in subduing
threats to the stability of the government, public order and security, has enabled the
Filipino people to rediscover their confidence in their ability to command the
resources of national unity, patriotism, discipline and sense of common destiny;

WHEREAS, the government and the people are at the same time also aware that the
public safety continues to require a degree of capability to deal adequately with
elements who persist in endeavoring to overthrow the government by violent means
and exploiting every opportunity to disrupt the peaceful and productive labors of the
government; ..."

As to the "self-evident" submittal of the main opinion that "the duty of the judiciary to protect
individual rights must yield to the power of the Executive to protect the State, for if the State
perishes, the Constitution, with the Bill of Rights that guarantees the right to personal liberty,
perishes with it" (at page 16), I can only recall the exhortation of the Holy Father John Paul II in his
address to the Philippine nation on February 17, 1981, thus: "Even in exceptional situations that may
at times arise, one can never justify any violation of the fundamental dignity of the human person or
of the basic rights that safeguard this dignity. Legitimate concern for the security of a nation, as
demanded by the common good, could lead to the temptation of subjugating to the State the human
being and his or her dignity and rights. Any apparent conflict between the exigencies of security and
of the citizens' basic rights must be resolved according to the fundamental principle-upheld always
by the Church- that social organization exists only for the service of man and for the protection of his
dignity, and that it cannot claim to serve the common good when human rights are not safeguaded.
People will have faith in the safeguarding of their security and the promotion of their well-being only
to the extent that they feel truly involved, and supported in their very humanity."
 G.R. No. L-33964 December 11, 1971

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF TEODOSIO LANSANG

RODOLFO DEL ROSARIO, and BAYANI ALCALA, petitioners,
vs.
BRIGADIER-GENERAL EDUARDO M. GARCIA, Chief, Philippine Constabulary, respondent.

G.R. No. L-33965 December 11, 1971

ROGELIO V. ARIENDA, petitioner,

vs.

SECRETARY OF NATIONAL DEFENSE, and CHIEF, PHIL. CONSTABULARY, respondents.

G.R. No. L-33973 December 11, 1971

LUZVIMINDA DAVID, petitioner,

vs.

GEN. EDUARDO GARCIA, in his capacity as Chief, Philippine Constabulary, COL. N. C.

CAMELLO, in his capacity as Chief of Staff, Philippine Constabulary and HON. JUAN PONCE
ENRILE in his capacity as Secretary, Department of National defense, respondents.

G.R. No. L-33982 December 11, 1971

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NEMESIO E. PRUDENTE

FELICIDAD G. PRUDENTE, petitioners,

vs.

GENERAL MANUEL YAN, GEN. EDU GARCIA, respondents.

G.R. No. L-34004 December 11, 1971

IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUSIN BEHALF OF GERARDO

TOMAS, ALSO KNOWN AS "GERRY TOMAS" AND FOR RETURN OF DOCUMENTS
ILLEGALLY SEIZED. DOMINGO E. DE LARA, in his capacity as Chairman, Committee on
Legal Assistance, Philippine Bar Association, petitioner,

vs.

BRIG. GENERAL EDUARDO M. GARCIA, CHIEF, PHILIPPINE CONSTABULARY, respondent.

G.R. No. L-34013 December 11, 1971

REYNALDO RIMANDO, petitioner,

vs.

BRIG. GEN. EDUARDO M. GARCIA, Chief of the Philippine Constabulary, respondent.

G.R. No. L-34039 December 11, 1971

IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUSIN BEHALF OF SGT.

FILOMENO M. DE CASTRO AND HIS WIFE, MRS. BARCELISA C. DE CASTRO. CARLOS C.
RABAGO, in his capacity as President of the Conference Delegates Association of the
Philippines (CONDA),petitioner,

vs.

BRIG. GEN. EDUARDO M. GARCIA, Chief, Philippine Constabulary, respondent.

G.R. No. L-34265 December 11, 1971

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ANTOLIN ORETA, JR.
ANTOLIN ORETA, JR., petitioner,

vs.

GEN. EDUARDO GARCIA and COL. PROSPERO OLIVAS, respondents.

G.R. No. L-34339 December 11, 1971

GARY B. OLIVAR, assisted by his father, GEORGE OLIVAR, petitioner,

vs.

GEN. EDUARDO GARCIA, in his capacity as Chief, Philippine Constabulary, et

al., respondents.

Ignacio P. Lacsina for petitioners Teodosio Lansang, et al.

Ramon A. Gonzales for petitioner Rogelio V. Arienda.

E. Voltaire Garcia II for petitioner Luzvimindo David.

Verzola, Africa and Atencio, Lorenzo M. Tanada, Wigberto E. Tañada, Fortunato de Leon, R. G.
Suntay and Juan T. David for petitioner Felicidad G. Prudente.

Ruben L. Roxas for petitioner Reynaldo Rimando.

Nuñez, Acob, Del Rosario and Ramos for petitioner Carlos Rabago, etc.

E. Voltaire Garcia II and M. P. Vivo for petitioner Gary Olivar, etc., et al.

Jose W. Diokno and Juanito R. Remulla for petitioner Antolin Oreta, Jr.

Domingo E. de Lara for and in his own behalf.

Office of the Solicitor General Felix Q. Antonio and Assistant Solicitor General Bernardo P. Pardo for
respondents.

CONCEPCION, C.J.:

In the evening of August 21, 1971, at about 9 p.m., while the Liberal Party of the Philippines was
holding a public meeting at Plaza Miranda, Manila, for the presentation of its candidates in the
general elections scheduled for November 8, 1971, two (2) hand grenades were thrown, one after
the other, at the platform where said candidates and other persons were. As a consequence, eight
(8) persons were killed and many more injured, including practically all of the aforementioned
candidates, some of whom sustained extensive, as well as serious, injuries which could have been
fatal had it not been for the timely medical assistance given to them.

On August 23, soon after noontime, the President of the Philippines announced the issuance of
Proclamation No. 889, dated August 21, 1971, reading as follows:

WHEREAS, on the basis of carefully evaluated information, it is definitely established

that lawless elements in the country, which are moved by common or similar
ideological conviction, design and goal and enjoying the active moral and material
support of a foreign power and being guided and directed by a well trained,
determined and ruthless group of men and taking advantage of our constitutional
liberties to promote and attain their ends, have entered into a conspiracy and have in
fact joined and banded their forces together for the avowed purpose of actually
staging, undertaking and waging an armed insurrection and rebellion in order to
forcibly seize political power in this country, overthrow the duly constituted
government, and supplant our existing political social, economic and legal order with
an entirely new one whose form of government, whose system of laws, whose
conception of God and religion, whose notion of individual rights and family relations,
and whose political, social and economic precepts are based on the Marxist-Leninist-
Maoist teachings and beliefs;

WHEREAS, these lawless elements, acting in concert through front organizations

that are seemingly innocent and harmless, have continuously and systematically
strengthened and broadened their memberships through sustained and careful
recruiting and enlistment of new adherents from among our peasantry, laborers,
professionals, intellectuals, students, and mass media personnel, and through such
 sustained and careful recruitment and enlistment have succeeded in infiltrating
almost every segment of our society in their ceaseless determination to erode and
weaken the political, social, economic and moral foundations of our existing
government and to influence many peasant, labor, professional, intellectual, student
and mass media organizations to commit acts of violence and depredations against
our duly constituted authorities, against the members of our law enforcement
agencies, and worst of all, against the peaceful members of our society;

WHEREAS, these lawless elements have created a state of lawlessness and

disorder affecting public safety and the security of the State, the latest manifestation
of which has been the dastardly attack on the Liberal Party rally in Manila on August
21, 1971, which has resulted in the death and serious injury of scores of persons;

WHEREAS, public safety requires that immediate and effective action be taken in
order to maintain peace and order, secure the safety of the people and preserve the
authority of the State;

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 suspend the privilege of the writ of habeas corpus, for the
persons presently detained, as well as others who may be hereafter similarly
detained for the crimes of insurrection or rebellion, and all other crimes and offenses
committed by them in furtherance or on the occasion thereof, or incident thereto, or
in connection therewith.

Presently, petitions for writ of habeas corpus were filed, in the above-entitled cases, by the following
persons, who, having been arrested without a warrant therefor and then detained, upon the authority
of said proclamation, assail its validity, as well as that of their detention, namely:

1. TEDORO LANSANG, RODOLFO DEL ROSARIO and BAYANI ALCALA, the petitioners in Case
No. L-33964 — filed on August 24, 1971 — who, on August 22, 1971, between 8 a.m. and 6 p.m.,
were "invited" by agents of the Philippine Constabulary — which is under the command of
respondent Brig. Gen. Eduardo M. Garcia — to go and did go to the headquarters of the Philippine
Constabulary, at Camp Crame, Quezon City, for interrogation, and thereafter, detained;

2. ROGELIO V. ARIENDA, the petitioner in Case No. L-33965 — filed, also, on August 24, 1971 —
who was picked up in his residence, at No. 55 Road, 3, Urduja Village, Quezon City, by members of
the Metrocom and then detained;

3. Soon after the filing of the petition in Case No. L-33965 — or on August 28, 1971 — the same
was amended to include VICENTE ILAO and JUAN CARANDANG, as petitioners therein, although,
apart from stating that these additional petitioners are temporarily residing with the original petitioner,
Rogelio V. Arienda, the amended petition alleged nothing whatsoever as regards the circumstances
under which said Vicente Ilao and Juan Carandang are said to be illegally deprived of their liberty;

4. LUZVIMINDO DAVID, petitioner in Case No. L-33973 — filed on August 25, 1971 — who was
similarly arrested in his residence, at No. 131-B Kamias Road, Quezon City, and detained by the
Constabulary;

5. Felicidad G. Prudente, who filed the petition in Case No. L-33982 — on August 27, 1971 — upon
the ground that her father, Dr. NEMESIO E. PRUDENTE, had, on August 22, 1971, at about 8 p.m.,
been apprehended by Constabulary agents in his house, at St. Ignatius Village, Quezon City, and
then detained at the Camp Crame stockade, Quezon City;

6. ANGELO DE LOS REYES, who was allowed — on August 30, 1971 — to intervene as one of the
petitioners in Cases Nos. L-33964, L-33965 and L-33973, he having been arrested by members of
the Constabulary on August 22, 1971, between 6:30 and 7:30 p.m., in his residence, at 86 Don
Manuel Street, Sta. Mesa Heights, Quezon City, and brought to Camp Crame, Quezon City, where
he is detained and restrained of liberty;

7. VICTOR FELIPE, who was similarly allowed to intervene as one of the petitioners in said three (3)
cases, upon the ground that, on August 23, 1971, at about 8 a.m., he was, likewise, apprehended at
Sta. Rosa, Laguna, by members of the Philippine Constabulary and brought, first to the
Constabulary headquarters at Canlubang, Laguna, and, then, to Camp Crame, Quezon City, where
he is detained and restrained of liberty;

8. TERESITO SISON, who was, also, allowed to intervene as one of the petitioners in the same
three (3) cases, he having been arrested in his residence, at 318 Lakandula St., Angeles City, on
August 22, 1971, between 6 and 7 p.m., and taken to the PC offices at Sto. Domingo, Angeles City,
then to Camp Olivas, San Fernando, Pampanga, and eventually to Camp Crame, Quezon City,
where he is restrained and deprived of liberty;

9. GERARDO TOMAS, alias Gerry Tomas, a 17-year old second year college students of St. Louis
University, Baguio City, on whose behalf, Domingo E. de Lara — in his capacity as Chairman,
Committee on Legal Assistance, Philippine Bar Association — filed on September 3, 1971, the
petition in Case No. L-34004, upon the ground that said Gerardo Tomas had, on August 23, 1971, at
about 6 a.m., been arrested by Constabulary agents, while on his way to school in the City of
Baguio, then brought to the Constabulary premises therein at Camp Holmes, and, thereafter, taken,
on August 24, 1971, to Camp Olivas, Pampanga, and thence, on August 25, 1971, to the
Constabulary headquarters at Camp Crame, Quezon City, where he is detained;

10. REYNALDO RIMANDO, petitioner in Case No. L-34013 — filed on September 7, 1971 — a 19-
year old student of the U.P. College in Baguio city — who, while allegedly on his way home, at
Lukban Road, Baguio, on August 23, 1971, at about 1 a.m., was joined by three (3) men who
brought him to the Burnham Park, thence, to Camp Olivas at San Fernando, Pampanga, and,
thereafter, to Camp Crame, Quezon City, where he is detained;

11. Sgt. FILOMENO M. DE CASTRO and his wife, Mrs. BARCELISA C. DE CASTRO, on whose
behalf Carlos C. Rabago — as President of the Conference Delegates Association of the Philippines
(CONDA) — filed the petition in Case No. L-34039 — on September 14, 1971 — against Gen.
Eduardo M. Garcia, alleging that, on August 27, 1971, at about 3 p.m., Mrs. De Castro was arrested,
while at Liamzon Subdivision, Rosario, Pasig, Rizal, by agents of the Constabulary, and taken to the
PC headquarters at Camp Crame, where, later, that same afternoon, her husband was brought,
also, by PC agents and both are detained;

12. ANTOLIN ORETA, JR., who filed the petition in Case No. L-34265 — on October 26, 1971 —
against said Gen. Garcia, as Chief of the Constabulary, and Col. Prospero Olivas, Chief of the
Central Intelligence Service (CIS), Philippine Constabulary, alleging that, upon invitation from said
CIS, he went, on October 20, 1971, to Camp Aguinaldo, Quezon City, to see Gen. Manuel Yan,
Chief of Staff of the Armed Forces of the Philippines, who referred petitioner to Col. Laroya of the
CIS; that the latter, in turn, referred him to CIS Investigator Atty. Berlin Castillo and another CIS
against, whose name is unknown to the petitioner; and that, after being interrogated by the two (2),
petitioner was detained illegally; and
13. GARY OLIVAR, petitioner in Case No. L-34339 — filed on November 10, 1971 — who was
apprehended, by agents of the Constabulary, in the evening of November 8, 1941, in Quezon City,
and then detained at Camp Crame, in the same City.

Upon the filing of the aforementioned cases, the respondents were forthwith required to answer the
petitions therein, which they did. The return and answer in L-33964 — which was, mutatis mutandis,
reproduced substantially or by reference in the other cases, except L-34265 — alleges, inter alia,
that the petitioners had been apprehended and detained "on reasonable belief" that they had
"participated in the crime of insurrection or rebellion;" that "their continued detention is justified due
to the suspension of the privilege of the writ of habeas corpus pursuant to Proclamation No. 889 of
the President of the Philippines;" that there is "a state of insurrection or rebellion" in this country, and
that "public safety and the security of the State required the suspension of the privilege of the writ
of habeas corpus," as "declared by the President of the Philippines in Proclamation No. 889; that in
making said declaration, the "President of the Philippines acted on relevant facts gathered thru the
coordinated efforts of the various intelligence agents of our government but (of) which the Chief
Executive could not at the moment give a full account and disclosure without risking revelation of
highly classified state secrets vital to its safely and security"; that the determination thus made by the
President is "final and conclusive upon the court and upon all other persons" and "partake(s) of the
nature of political question(s) which cannot be the subject of judicial inquiry," pursuant to Barcelon v.
Baker, 5 Phil. 87, and Montenegro v. Castañeda, 91 Phil. 882; that petitioners "are under detention
pending investigation and evaluation of culpabilities on the reasonable belief" that they "have
committed, and are still committing, individually or in conspiracy with others, engaged in armed
struggle, insurgency and other subversive activities for the overthrow of the Government; that
petitioners cannot raise, in these proceedings for habeas corpus, "the question of their guilt or
innocence"; that the "Chief of Constabulary had petitioners taken into custody on the basis of the
existence of evidence sufficient to afford a reasonable ground to believe that petitioners come within
the coverage of persons to whom the privilege of the writ of habeas corpus has been suspended";
that the "continuing detention of the petitioners as an urgent bona fide precautionary and preventive
measure demanded by the necessities of public safety, public welfare and public interest"; that the
President of the Philippines has "undertaken concrete and abundant steps to insure that the
constitutional rights and privileges of the petitioners as well as of the other persons in current
confinement pursuant to Proclamation 889 remain unimpaired and unhampered"; and that
"opportunities or occasions for abuses by peace officers in the implementation of the proclamation
have been greatly minimized, if not completely curtailed, by various safeguards contained in
directives issued by proper authority."

These safeguards are set forth in:

1. A letter of the President to the Secretary of National Defense, dated August 21, 1971,
directing, inter alia, in connection with the arrest or detention of suspects pursuant to Proclamation
No. 889, that, except when caught in flagrante delicto, no arrest shall be made without warrant
authorized in writing by the Secretary of National Defense; that such authority shall not be granted
unless, "on the basis of records and other evidences," it appears satisfactorily, in accordance with
Rule 113, section 6(b), of the Rules of Court, that the person to be arrested is probably guilty of the
acts mentioned in the proclamation; that, if such person will be charged with a crime subject to an
afflictive penalty under the Anti-Subversion Act, the authorization for his arrest shall not be issued
unless supported by signed intelligence reports citing at least one reliable witness to the same overt
act; that no unnecessary or unreasonable force shall be used in effecting arrests; and that arrested
persons shall not be subject to greater restraint than is necessary for their detention;

2. Communications of the Chief of the Constabulary, dated August 23, 27, and 30, 1971, to all units
of his command, stating that the privilege of the writ is suspended for no other persons than those
specified in the proclamation; that the same does not involve material law; that precautionary
measures should be taken to forestall violence that may be precipitated by improper behavior of
military personnel; that authority to cause arrest under the proclamation will be exercised only by the
Metrocom, CMA, CIS, and "officers occupying position in the provinces down to provincial
commanders"; that there shall be no indiscriminate or mass arrests; that arrested persons shall not
be harmed and shall be accorded fair and humane treatment; and that members of the detainee's
immediate family shall be allowed to visit him twice a week;

3. A memorandum of the Department of National Defense, dated September 2, 1971, directing the
Chief of the Constabulary to establish appropriate Complaints and Action Bodies/Groups to prevent
and/or check any abuses in connection with the suspension of the privilege of the writ; and

4. Executive Order No. 333, dated August 26, 1971, creating a Presidential Administrative
Assistance Committee to hear complaints regarding abuses committed in connection with the
implementation of Proclamation No. 889.

Respondents in L-33965 further alleged that therein petitioners Vicente Ilao and Juan Carandang
had been released from custody on August 31, 1971, "after it had been found that the evidence
against them was insufficient."

In L-34265, the "Answer and Return" filed by respondents therein traversed some allegations of fact
and conclusions of law made in the petition therein and averred that Antolin Oreta, Jr., the petitioner
therein, had been and is detained "on the basis of a reasonable ground to believe that he has
committed overt acts in furtherance of rebellion or insurrection against the government" and,
accordingly, "comes within the class of persons as to whom the privilege of the writ of habeas
corpus has been suspended by Proclamation No. 889, as amended," the validity of which is not
contested by him.

On August 30, 1971, the President issued Proclamation No. 889-A, amending Proclamation No. 889,
so as to read as follows:

WHEREAS, on the basis of carefully evaluated information, it is definitely established

that lawless elements in the country, which are moved by common or similar
ideological conviction, design and goal and enjoying the active moral and material
support of a foreign power and being guided and directed by a well-trained,
determined and ruthless group of men and taking advantage of our constitutional
liberties to promote and attain their ends, have entered into a conspiracy and have in
fact joined and banded their forces together for the avowed purpose of [actually]
staging, undertaking, [and] wagging and are actually engaged in an armed
insurrection and rebellion in order to forcibly seize political power in this country,
overthrow the duly constituted government, and supplant our existing political, social,
economic and legal order with an entirely new one whose form of government,
whose system of laws, whose conception of God and religion, whose notion of
individual rights and family relations, and whose political, social and economic
precepts are based on the Marxist-Leninist-Maoist teaching and beliefs;

WHEREAS, these lawless elements, acting in concert through front organizations

that are seemingly innocent and harmless, have continuously and systematically
strengthened and broadened their memberships through sustained and careful
recruiting and enlistment of new adherents from among our peasantly, laborers,
professionals, intellectuals, students, and mass media personnel, and through such
sustained and careful recruitment and enlistment have succeeded in infiltrating
 almost every segment of our society in their ceaseless determination to erode and
weaken the political, social, economic and moral foundations of our existing
government and influence many peasant, labor, professional, intellectual, student
and mass media organizations to commit acts of violence and depredations against
our duly constituted authorities, against the members of our law enforcement
agencies, and worst of all, against the peaceful members of our society;

WHEREAS, these lawless elements, by their acts of rebellion and insurrection, have
created a state of lawlessness and disorder affecting public safety and security of the
State, the latest manifestation of which has been the dastardly attack on the Liberal
Party rally in Manila on August 21, 1971, which has resulted in the death and serious
injury of scores of persons;

WHEREAS, public safety requires that immediate and effective action be taken in
order to maintain peace and order, secure the safety of the people and preserve the
authority of the State;

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 suspend the privilege of the writ of habeas corpus for the
persons presently detained, as well as all others who may be hereafter similarly
detained for the crimes of insurrection or rebellion [,] and [all] other [crimes and
offenses] overt acts committed by them in furtherance [or on the occasion] thereof[,].
[or incident thereto, or in connection therewith.]
1

On September 1, 1971, Cases Nos. L-33964, L-33965, L-33973 and L-33982 were jointly heard and
then the parties therein were allowed to file memoranda, which were submitted from September 3 to
September 9, 1971.

Soon thereafter, or on September 18, 1971, Proclamation No. 889 was further amended by
Proclamation No. 889-B, lifting the suspension of the privilege of the writ of habeas corpus in the
following provinces, sub-provinces and cities of the Philippine, namely:

A. PROVINCES:

1. Batanes 15. Negros Occ.

2. Ilocos Norte 16. Negros Or.
3. Ilocos Sur 17. Cebu
4. Abra 18. Bohol
5. Abra 19. Capiz
6. Pangasinan 20. Aklan
7. Batangas 21. Antique
8. Catanduanes 22. Iloilo
9. Masbate 23. Leyte
10. Romblon 24. Leyte del Sur
11. Marinduque 25. Northern Samar
12. Or. Mindoro 26. Eastern Samar
13. Occ. Mindoro 27. Western Samar
14. Palawan.

B. SUB-PROVINCES:
 1. Guimaras 3. Siquior
2. Biliran

C. CITIES:

1. Laog 10. Bacolod

2. Dagupan 11. Bago
3. San Carlos 12. Canlaon
4. Batangas 13. La Carlota
5. Lipa 14. Bais
6. Puerto Princesa 15. Dumaguete
7. San Carlos (Negros 16. Iloilo
Occ.) 17. Roxas
8. Cadiz 18. Tagbilaran
9. Silay 19. Lapu-lapu

20. Cebu 24. Tacloban

21. Mandaue 25. Ormoc
22. Danao 26. Calbayog
23. Toledo

On September 25, 1971, the President issued Proclamation No. 889-C, restoring the privilege of the
writ in the following provinces and cities:

A. PROVINCES:

1. Surigao del Norte 8. Agusan del Sur

2. Surigao del Sur 9. Misamis Or.
3. Davao del Norte 10. Misamis Occ.
4. Davao del Sur 11. Zamboanga del Norte
5. Davao Oriental 12. Basilan
6. Bukidnon 13. Pagadian
7. Agusan del Norte

B. CITIES:

1. Surigao 8. Tangub
2. Davao 9. Dapitan
3. Butuan 10. Dipolog
4. Cagayan 11. Zamboanga
5. Gingoong 12. Basilan
6. Ozamiz 13. Pagadian.
7. Oroquieta

On October 4, 1971, the suspension of the privilege was further lifted by Proclamation No. 889-D, in
the following places:

A. PROVINCES:

1. Cagayan 5. Camarines
2. Cavite 6. Albay
 3. Mountain Province 7. Sorsogon
4. Kalinga-Apayao

B. CITIES:

1. Cavite City 3. Trece Martires

2. Tagaytay 4. Legaspi

As a consequences, the privilege of the writ of habeas corpus is still suspended in the following
eighteen (18) provinces, two (2) sub-provinces and eighteen (18) cities, to wit:

A. PROVINCE:

1. Bataan 10. North Cotabato

2. Benguet 11. Nueva Ecija
3. Bulacan 13. Pampanga
4. Camarines Sur 14. Quezon
5. Ifugao 15. Rizal
6. Isabela 16. South Cotabato
7. Laguna 17. Tarlac
8. Lanao del Norte 18. Zambales
9. Lanao del Norte

B. SUB-PROVINCES:

1. Aurora 2. Quirino

C. CITIES:

1. Angeles 10. Manila

2. Baguio 11. Marawi
3. Cabanatuan 12. Naga
4. Caloocan 13. Olongapo
5. Cotabato 14. Palayan
6. General Santos 15. Pasay
7. Iligan 16. Quezon
8 Iriga 17. San Jose
9 Lucena 18. San Pablo

The first major question that the Court had to consider was whether it would adhere to the view
taken in Barcelon v. Baker,  and reiterated in Montenegro v. Castañeda,  pursuant to which, "the
2 3

authority to decide whether the exigency has arisen requiring suspension (of the privilege of the writ
of habeas corpus) belongs to the President and his 'decision is final and conclusive' upon the courts
and upon all other persons." Indeed, had said question been decided in the affirmative the main
issue in all of these cases, except
L-34339, would have been settled, and, since the other issues were relatively of minor importance,
said cases could have been readily disposed of. Upon mature deliberation, a majority of the
Members of the Court had, however, reached, although tentatively, a consensus to the contrary, and
decided that the Court had authority to and should inquire into the existence of the factual bases
required by the Constitution for the suspension of the privilege of the writ; but before proceeding to
do so, the Court deemed it necessary to hear the parties on the nature and extent of the inquiry to
be undertaken, none of them having previously expressed their views thereof. Accordingly, on
October 5, 1971, the Court issued, in L-33964, L-33965, L-33973 and L-33982, a resolution stating
in part that —

... a majority of the Court having tentatively arrived at a consensus that it may inquire
in order to satisfy itself of the existence of the factual bases for the issuance of
Presidential Proclamations Nos. 889 and 889-A (suspending the privilege of the writ
of habeas corpus for all persons detained or to be detained for the crimes of rebellion
or insurrection throughout the Philippines, which area has lately been reduced to
some eighteen provinces, two subprovinces and eighteen cities with the partial lifting
of the suspension of the privilege effected by Presidential Proclamations Nos. 889-B,
889-C and 889-D) and thus determine the constitutional sufficiency of such bases in
the light of the requirements of Article III, sec. 1, par. 14, and Article VII, sec. 10, par.
2, of the Philippine Constitution; and considering that the members of the Court are
not agreed on the precise scope and nature of the inquiry to be made in the
premises, even as all of them are agreed that the Presidential findings are entitled to
great respect, the Court RESOLVED that these cases be set for rehearing on
October 8, 1971 at 9:30 A.M.

xxx xxx xxx

On October 8, 1971, said four cases were, therefore, heard, once again, but, this time jointly with
cases Nos. L-34004, L-34013, and L-34039, and the parties were then granted a period to file
memoranda, in amplification of their respective oral arguments, which memoranda were submitted
from October 12 to October 21, 1971.

Respondents having expressed, during the oral arguments, on September 1 and October 8, 1971,
their willingness to impart to the Court classified information relevant to these cases, subject to
appropriate security measures, the Court met at closed doors, on October 28 and 29, 1971, and, in
the presence of three (3) attorneys for the petitioners, chosen by the latter, namely, Senator Jose W.
Diokno, Senator Salvador H. Laurel, and Atty. Leopoldo Africa, as well as of the Solicitor General
and two (2) members of his staff, was briefed, by Gen. Manuel Yan, Chief of Staff of the Armed
Forces of the Philippines, Gen. Fidel Ramos, Deputy Chief of Staff, Gen. Felizardo Tanabe, Col.
Tagumpay Nanadiego, Judge Advocate General, JAGS (GSC), and other ranking officers of said
Armed Forces, on said classified information, most of which was contained in reports and other
documents already attached to the records. During the proceedings, the members of the Court, and,
occassionally, counsel for the petitioners, propounded pertinent questions to said officers of the
Armed Forces. Both parties were then granted a period of time within which to submit their
respective observations, which were filed on November 3, 1971, and complemented by some
documents attached to the records on November 6, 1971, and a summary, submitted on November
15, 1971, of the aforesaid classified information.

In the meantime, cases Nos. L-34265 (Oreta) and L-34339 (Olivar) had been filed and the parties
therein were heard in oral argument on November 4, and 16, 1971, respectively.

On November 15, 1971, the Solicitor General filed manifestations — motions stating that on
November 13, 1971, the following petitioners were:

(a) released from custody:

(1) Teodosio Lansang -- G.R. No. L-33964

(2) Bayani Alcala -- " " L-33964
 (3) Rogelio Arienda -- " " L-33965
(4) Nemesio Prudente -- " " L-33982
(5) Gerardo Tomas -- " " L-34004
(6) Reynaldo Rimando -- " " L-34013
(7) Filomeno M. de Castro -- " " L-34039
(8) Barcelisa de Castro -- " " L-34039
(9) Antolin Oreta, Jr. -- " " L-34264.

(b) charged, together with other persons named in the criminal complaint filed therefor, with a
violation of Republic Act No. 1700 (Anti-Subversion Act), in the City Fiscal's Office of Quezon City:

(1) Angelo de los Reyes -- G.R. No. L-22982 *

(2) Teresito Sison -- " " L-33982 *

(c) accused, together with many others named in the criminal complaint filed therefor, of a violation
of section 4 of Republic Act No. 1700 (Anti-Subversion Act), in the Court of First Instance of Rizal:

(1) Rodolfo del Rosario -- G.R. No. L-33969 **

(2) Luzvimindo David -- " " L-33973
(3) Victor Felipe -- " " L-33982 *

and continue under detention pursuant to Proclamation No. 889, as amended, and praying that the
petitions in G.R. Nos. L-33964, L-33965, L-33982, L-34004, L-34013 and L-34039 be dismissed,
without prejudice to the resolution of the remaining cases. Copy of the criminal complaint filed, as
above stated, with the Court of First Instance of Rizal and docketed therein as Criminal Case No. Q-
1623 of said court — which was appended to said manifestations-motions of the respondent as
Annex 2 thereof — shows that Gary Olivar, the petitioner in L-34339, is one of the defendants in said
case.

Required to comment on said manifestations-motions, Luzvimindo David, petitioner in L-33973, in

his comment dated November 23, 1971, urged the Court to rule on the merits of the petitions in all of
these cases, particularly on the constitutionality of Presidential Proclamation No. 889, as amended,
upon the ground that he is still detained and that the main issue is one of public interest involving as
it does the civil liberties of the people. Angelo de los Reyes, one of the petitioners in L-33964, L-
33965 and L-33973, Nemesio E. Prudente and Gerardo Tomas, for whose respective benefit the
petitions in L-33982 and L-34004 have been filed, maintained that the issue in these cases is not
moot, not even for the detainees who have been released, for, as long as the privilege of the writ
remains suspended, they are in danger of being arrested and detained again without just cause or
valid reason. In his reply, dated and filed on November 29, 1971, the Solicitor General insisted that
the release of the above-named petitioners rendered their respective petitions moot and academic.

Petitioners herein, except Antolin Oreta, Jr. in L-34265, question the formal validity of the
proclamation suspending the privilege of the writ of habeas corpus. In this connection, it should be
noted that, as originally formulated, Proclamation No. 889 was contested upon the ground that it did
not comply with the pertinent constitutional provisions, namely, paragraph (14) of section 1, Article III
of our Constitution, reading:

The privilege of the writ of habeas corpus shall not be suspended except in cases of
invasion, insurrection, or rebellion, when the public safety requires it, in any way of
 which events the same may be suspended wherever during such period the
necessity for such suspension shall exist.

and paragraph (2), section 10, Article VII of the same instrument, which provides that:

The President shall be 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, insurrection, or rebellion. In case of invasion,
insurrection, or rebellion, or imminent danger thereof when the public safety requires
it, he may suspend the privileges of the writ of habeas corpus, or place the
Philippines or any part thereof under martial law.

Regardless of whether or not the President may suspend the privilege of the writ of habeas corpus in
case of "imminent danger" of invasion, insurrection or rebellion — which is one of the grounds stated
in said paragraph (2), section 10 of Art. VII of the Constitution, but not mentioned in paragraph (14),
section 1 of its Bill of Rights — petitioners maintained that Proclamation No. 889 did not declare the
existence of actual "invasion insurrection or rebellion or imminent danger thereof," and that,
consequently, said Proclamation was invalid. This contention was predicated upon the fact that,
although the first "whereas" in Proclamation No. 889 stated that "lawless elements" had "entered into
a conspiracy and have in fact joined and banded their forces together for the avowed purpose of
actually staging, undertaking and waging an armed insurrection and rebellion," the actuality so
alleged refers to the existence, not of an uprising that constitutes the essence of a rebellion or
insurrection, but of the conspiracy and the intent to rise in arms.

Whatever may be the merit of this claim, the same has been rendered moot and academic by
Proclamation No. 889-A, issued nine (9) days after the promulgation of the original proclamation, or
on August 30, 1971. Indeed, said Proclamation No. 889-A amended, inter alia, the first "whereas" of
the original proclamation by postulating the said lawless elements "have entered into a conspiracy
and have in fact joined and banded their forces together for the avowed purpose of staging,
undertaking, waging and are actually engaged in an armed insurrection and rebellion in order to
forcibly seize political power in this country, overthrow the duly constituted government, and supplant
our existing political, social, economic and legal order with an entirely new one ...." Moreover, the
third "whereas" in the original proclamation was, likewise, amended by alleging therein that said
lawless elements, "by their acts of rebellion and insurrection," have created a state of lawlessness
and disorder affecting public safety and the security of the State. In other words, apart from
adverting to the existence of actual conspiracy and of the intent to rise in arms to overthrow the
government, Proclamation No. 889-A asserts that the lawless elements "are actually engaged in an
armed insurrection and rebellion" to accomplish their purpose.

It may not be amiss to note, at this juncture, that the very tenor of the original proclamation and
particularly, the circumstances under which it had been issued, clearly suggest the intent to aver that
there was and is, actually, a state of rebellion in the Philippines, although the language of said
proclamation was hardly a felicitous one, it having in effect, stressed the actuality of the intent to rise
in arms, rather than of the factual existence of the rebellion itself. The pleadings, the oral arguments
and the memoranda of respondents herein have consistently and abundantly emphasized — to
justify the suspension of the privilege of the writ of habeas corpus — the acts of violence and
subversion committed prior to August 21, 1971, by the lawless elements above referred to, and the
conditions obtaining at the time of the issuance of the original proclamation. In short, We hold that
Proclamation No. 889-A has superseded the original proclamation and that the flaws attributed
thereto are purely formal in nature.

II
Let us now consider the substantive validity of the proclamation, as amended. Pursuant to the
above-quoted provisions of the Constitution, two (2) conditions must concur for the valid exercise of
the authority to suspend the privilege to the writ, to wit: (a) there must be "invasion, insurrection, or
rebellion" or — pursuant to paragraph (2), section 10 of Art. VII of the Constitution — "imminent
danger thereof," and (b) "public safety" must require the suspension of the privilege. The Presidential
Proclamation under consideration declares that there has been and there is actually a state of
rebellion and
that  "public safety requires that immediate and effective action be taken in order to maintain peace
4

and order, secure the safety of the people and preserve the authority of the State."

Are these findings conclusive upon the Court? Respondents maintain that they are, upon the
authority of Barcelon v. Baker  and Montenegro v. Castañeda.  Upon the other hand, petitioners
5 6

press the negative view and urge a reexamination of the position taken in said two (2) cases, as well
as a reversal thereof.

The weight of Barcelon v. Baker, as a precedent, is diluted by two (2) factors, namely: (a) it relied
heavily upon Martin v. Mott  involving the U.S. President's power to call out the militia, which — he
7

being the commander-in-chief of all the armed forces — may be exercised to suppress or prevent
any lawless violence, even without invasion, insurrection or rebellion, or imminent danger thereof,
and is, accordingly, much broader than his authority to suspend the privilege of the writ of habeas
corpus, jeopardizing as the latter does individual liberty; and (b) the privilege had been suspended
by the American Governor-General, whose act, as representative of the Sovereign, affecting the
freedom of its subjects, can hardly be equated with that of the President of the Philippines dealing
with the freedom of the Filipino people, in whom sovereignty resides, and from whom all government
authority emanates. The pertinent ruling in the Montenegro case was based mainly upon the
Barcelon case, and hence, cannot have more weight than the same. Moreover, in the Barcelon
case, the Court held that it could go into the question: "Did the Governor-General" — acting under
the authority vested in him by the Congress of the United States, to suspend the privilege of the writ
of habeas corpus under certain conditions — "act in conformance with such authority?" In other
words, it did determine whether or not the Chief Executive had acted in accordance with law.
Similarly, in the Montenegro case, the Court held that petitioner therein had "failed to overcome the
presumption of correctness which the judiciary accords to acts of the Executive ...." In short, the
Court considered the question whether or not there really was are rebellion, as stated in the
proclamation therein contested.

Incidentally, even the American jurisprudence is neither explicit nor clear on the point under
consideration. Although some cases  purport to deny the judicial power to "review" the findings made
8

in the proclamations assailed in said cases, the tenor of the opinions therein given, considered as a
whole, strongly suggests the court's conviction that the conditions essential for the validity of said
proclamations or orders were, in fact, present therein, just as the opposite view taken in other
cases  had a backdrop permeated or characterized by the belief that said conditions were absent.
9

Hence, the dictum of Chief Justice Taney to the effect that "(e)very case must depend on its own
circumstances."   One of the important, if not dominant, factors, in connection therewith, was
10

intimated in Sterling v. Constantin,   in which the Supreme Court of the United States, speaking
11

through Chief Justice Hughes, declared that:

.... When there is a substantial showing that the exertion of state power has
overridden private rights secured by that Constitution, the subject is necessarily one
for judicial inquiry in an appropriate proceeding directed against the individuals
charged with the transgression. To such a case the Federal judicial power extends
(Art. 3, sec. 2) and, so extending, the court has all the authority appropriate to its
exercise. ....  12
In our resolution of October 5, 1971, We stated that "a majority of the Court" had "tentatively arrived
at a consensus that it may inquire in order to satisfy itself of the existence of the factual bases for the
issuance of Presidential Proclamations Nos. 889 and 889-A ... and thus determine the constitutional
sufficiency of such bases in the light of the requirements of Article III, sec. 1, par. 14, and Article VII,
sec. 10, par 2, of the Philippine Constitution...." Upon further deliberation, the members of the Court
are now unanimous in the conviction that it has the authority to inquire into the existence of said
factual bases in order to determine the constitutional sufficiency thereof.

Indeed, the grant of power to suspend the privilege is neither absolute nor unqualified. The authority
conferred by the Constitution, both under the Bill of Rights and under the Executive Department, is
limited and conditional. The precept in the Bill of Rights establishes a general rule, as well as an
exception thereto. What is more, it postulates the former in the negative, evidently to stress its
importance, by providing that "(t)he privilege of the writ of habeas corpus shall not be suspended ...."
It is only by way of exception that it permits the suspension of the privilege "in cases of invasion,
insurrection, or rebellion" — or, under Art VII of the Constitution, "imminent danger thereof" — "when
the public safety requires it, in any of which events the same may be suspended wherever during
such period the necessity for such suspension shall exist."   For from being full and plenary, the
13

authority to suspend the privilege of the writ is thus circumscribed, confined and restricted, not only
by the prescribed setting or the conditions essential to its existence, but, also, as regards the time
when and the place where it may be exercised. These factors and the aforementioned setting or
conditions mark, establish and define the extent, the confines and the limits of said power, beyond
which it does not exist. And, like the limitations and restrictions imposed by the Fundamental Law
upon the legislative department, adherence thereto and compliance therewith may, within proper
bounds, be inquired into by courts of justice. Otherwise, the explicit constitutional provisions thereon
would be meaningless. Surely, the framers of our Constitution could not have intended to engage in
such a wasteful exercise in futility.

Much less may the assumption be indulged in when we bear in mind that our political system is
essentially democratic and republican in character and that the suspension of the privilege affects
the most fundamental element of that system, namely, individual freedom. Indeed, such freedom
includes and connotes, as well as demands, the right of every single member of our citizenry to
freely discuss and dissent from, as well as criticize and denounce, the views, the policies and the
practices of the government and the party in power that he deems unwise, improper or inimical to
the commonwealth, regardless of whether his own opinion is objectively correct or not. The
untrammelled enjoyment and exercise of such right — which, under certain conditions, may be a
civic duty of the highest order — is vital to the democratic system and essential to its successful
operation and wholesome growth and development.

Manifestly, however, the liberty guaranteed and protected by our Basic Law is one enjoyed and
exercised, not in derogation thereof, but consistently therewith, and, hence, within the framework of
the social order established by the Constitution and the context of the Rule of Law. Accordingly,
when individual freedom is used to destroy that social order, by means of force and violence, in
defiance of the Rule of Law — such as by rising publicly and taking arms against the government to
overthrow the same, thereby committing the crime of rebellion — there emerges a circumstance that
may warrant a limited withdrawal of the aforementioned guarantee or protection, by suspending the
privilege of the writ of habeas corpus, when public safety requires it. Although we must be
forewarned against mistaking mere dissent — no matter how emphatic or intemperate it may be —
for dissidence amounting to rebellion or insurrection, the Court cannot hesitate, much less refuse —
when the existence of such rebellion or insurrection has been fairly established or cannot reasonably
be denied — to uphold the finding of the Executive thereon, without, in effect, encroaching upon a
power vested in him by the Supreme Law of the land and depriving him, to this extent, of such
power, and, therefore, without violating the Constitution and jeopardizing the very Rule of Law the
Court is called upon to epitomize.
As heretofore adverted to, for the valid suspension of the privilege of the writ: (a) there must be
"invasion, insurrection or rebellion" or — pursuant to paragraph (2), section 10 of Art. VII of the
Constitution — "imminent danger thereof"; and (b) public safety must require the aforementioned
suspension. The President declared in Proclamation No. 889, as amended, that both conditions are
present.

As regards the first condition, our jurisprudence   attests abundantly to the Communist activities in
14

the Philippines, especially in Manila, from the late twenties to the early thirties, then aimed principally
at incitement to sedition or rebellion, as the immediate objective. Upon the establishment of the
Commonwealth of the Philippines, the movement seemed to have waned notably; but, the outbreak
of World War II in the Pacific and the miseries, the devastation and havoc, and the proliferation of
unlicensed firearms concomitant with the military occupation of the Philippines and its subsequent
liberation, brought about, in the late forties, a resurgence of the Communist threat, with such vigor as
to be able to organize and operate in Central Luzon an army — called HUKBALAHAP, during the
occupation, and renamed Hukbong Mapagpalaya ng Bayan (HMP) after liberation — which clashed
several times with the armed forces of the Republic. This prompted then President Quirino to issue
Proclamation No. 210, dated October 22, 1950, suspending the privilege of the writ of habeas
corpus, the validity of which was upheld in Montenegro v. Castañeda.   Days before the
15

promulgation of said Proclamation, or on October 18, 1950, members of the Communist Politburo in
the Philippines were apprehended in Manila. Subsequently accused and convicted of the crime of
rebellion, they served their respective sentences.  16

The fifties saw a comparative lull in Communist activities, insofar as peace and order were
concerned. Still, on June 20, 1957, Rep. Act No. 1700, otherwise known as the Anti-Subversion Act,
was approved, upon the ground — stated in the very preamble of said statute — that.

... the Communist Party of the Philippines, although purportedly a political party, is in
fact an organized conspiracy to overthrow the Government of the Republic of the
Philippines, not only by force and violence but also by deceit, subversion and other
illegal means, for the purpose of establishing in the Philippines a totalitarian regime
subject to alien domination and control;

... the continued existence and activities of the Communist Party of the Philippines
constitutes a clear, present and grave danger to the security of the Philippines;   and
17

... in the face of the organized, systematic and persistent subversion, national in
scope but international in direction, posed by the Communist Party of the Philippines
and its activities, there is urgent need for special legislation to cope with this
continuing menace to the freedom and security of the country....

In the language of the Report on Central Luzon, submitted, on September 4, 1971, by the Senate Ad
Hoc Committee of Seven — copy of which Report was filed in these cases by the petitioners herein
—

The years following 1963 saw the successive emergence in the country of several
mass organizations, notably the Lapiang Manggagawa (now the Socialist Party of the
Philippines) among the workers; the Malayang Samahan ng mga Magsasaka
(MASAKA) among the peasantry; the Kabataang Makabayan (KM) among the
youth/students; and the Movement for the Advancement of Nationalism (MAN)
among the intellectuals/professionals. The PKP has exerted all-out effort to infiltrate,
influence and utilize these organizations in promoting its radical brand of
nationalism.  18
Meanwhile, the Communist leaders in the Philippines had been split into two (2) groups, one of
which — composed mainly of young radicals, constituting the Maoist faction — reorganized the
Communist Party of the Philippines early in 1969 and established a New People's Army. This faction
adheres to the Maoist concept of the "Protracted People's War" or "War of National Liberation." Its
"Programme for a People's Democratic Revolution" states, inter alia:

The Communist Party of the Philippines is determined to implement its general

programme for a people's democratic revolution. All Filipino communists are ready to
sacrifice their lives for the worthy cause of achieving the new type of democracy, of
building a new Philippines that is genuinely and completely independent, democratic,
united, just and prosperous ...

xxx xxx xxx

The central task of any revolutionary movement is to seize political power. The

Communist Party of the Philippines assumes this task at a time that both the
international and national situations are favorable of asking the road of armed
revolution ... 
19

In the year 1969, the NPA had — according to the records of the Department of National Defense —
conducted raids, resorted to kidnappings and taken part in other violent incidents numbering over
230, in which it inflicted 404 casualties, and, in turn, suffered 243 losses. In 1970, its records of
violent incidents was about the same, but the NPA casualties more than doubled.

At any rate, two (2) facts are undeniable: (a) all Communists, whether they belong to the traditional
group or to the Maoist faction, believe that force and violence are indispensable to the attainment of
their main and ultimate objective, and act in accordance with such belief, although they may
disagree on the means to be used at a given time and in a particular place; and (b) there is a New
People's Army, other, of course, that the arm forces of the Republic and antagonistic thereto. Such
New People's Army is per se proof of the existence of a rebellion, especially considering that its
establishment was announced publicly by the reorganized CPP. Such announcement is in the
nature of a public challenge to the duly constituted authorities and may be likened to a declaration of
war, sufficient to establish a war status or a condition of belligerency, even before the actual
commencement of hostilities.

We entertain, therefore, no doubts about the existence of a sizeable group of men who have publicly
risen in arms to overthrow the government and have thus been and still are engaged in rebellion
against the Government of the Philippines.

In fact, the thrust of petitioners' argument is that the New People's Army proper is too small,
compared with the size of the armed forces of the Government, that the Communist rebellion or
insurrection cannot so endanger public safety as to require the suspension of the privilege of the writ
of habeas corpus. This argument does not negate, however, the existence of a rebellion, which, from
the constitutional and statutory viewpoint, need not be widespread or attain the magnitude of a civil
war. This is apparent from the very provision of the Revised Penal Code defining the crime of
rebellion,   which may be limited in its scope to "any part" of the Philippines, and, also, from
20

paragraph (14) of section 1, Article III of the Constitution, authorizing the suspension of the privilege
of the writ "wherever" — in case of rebellion — "the necessity for such suspension shall exist." In
fact, the case of Barcelon v. Baker referred to a proclamation suspending the privilege in the
provinces of Cavite and Batangas only. The case of In re Boyle   involved a valid proclamation
21

suspending the privilege in a smaller area — a country of the state of Idaho.

The magnitude of the rebellion has a bearing on the second condition essential to the validity of the
suspension of the privilege — namely, that the suspension be required by public safety. Before
delving, however, into the factual bases of the presidential findings thereon, let us consider the
precise nature of the Court's function in passing upon the validity of Proclamation No. 889, as
amended.

Article VII of the Constitution vests in the Executive the power to suspend the privilege of the writ
of habeas corpus under specified conditions. Pursuant to the principle of separation of powers
underlying our system of government, the Executive is supreme within his own sphere. However, the
separation of powers, under the Constitution, is not absolute. What is more, it goes hand in hand
with the system of checks and balances, under which the Executive is supreme, as regards the
suspension of the privilege, but 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.

In the exercise of such authority, the function of the Court is merely to check — not to supplant   —
22

the Executive, or to ascertain merely whether he had gone beyond the constitutional limits of his
jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act. To be
sure, the power of the Court to determine the validity of the contested proclamation is far from being
identical to, or even comparable with, its power over ordinary civil or criminal cases elevated thereto
by ordinary appeal from inferior courts, in which cases the appellate court has all of the powers of
the court of origin.

Under the principle of separation of powers and the system of checks and balances, the judicial
authority to review decisions of administrative bodies or agencies is much more limited, as regards
findings of fact made in said decisions. Under the English law, the reviewing court
determines only whether there is some evidentiary basis for the contested administrative findings; no
quantitative examination of the supporting evidence is undertaken. The administrative findings can
be interfered with only if there is no evidence whatsoever in support thereof, and said finding is,
accordingly, arbitrary, capricious and obviously unauthorized. This view has been adopted by some
American courts. It has, likewise, been adhered to in a number of Philippine cases. Other cases,
in both jurisdictions, have applied the "substantial evidence" rule, which has been construed to mean
"more than a mere scintilla" or "relevant evidence as a reasonable mind might accept as adequate to
support a conclusion,"   even if other minds equally reasonable might conceivably opine otherwise.
23

Manifestly, however, this approach refers to the review of administrative determinations involving the
exercise of quasi-judicial functions calling for or entailing the reception of evidence. It does not and
cannot be applied, in its aforesaid form, in testing the validity of an act of Congress or of the
Executive, such as the suspension of the privilege of the writ of habeas corpus, for, as a general
rule, neither body takes evidence — in the sense in which the term is used in judicial proceedings —
before enacting a legislation or suspending the writ. Referring to the test of the validity of a statute,
the Supreme Court of the United States, speaking through Mr. Justice Roberts, expressed, in the
leading case of Nebbia v. New York,   the view that:
24

... If the laws passed are seen to have a reasonable relation to a proper legislative
purpose, and are neither arbitrary nor discriminatory, the requirements of due
process are satisfied, and judicial determination to that effect renders a court functus
officio ... With the wisdom of the policy adopted, with the adequacy or practically of
the law enacted to forward it, the courts are both incompetent and unauthorized to
deal ...

Relying upon this view, it is urged by the Solicitor General —

 ... that judicial inquiry into the basis of the questioned proclamation can go no
further than to satisfy the Court not that the President's decision is correct and that
public safety was endanger by the rebellion and justified the suspension of the writ,
but that in suspending the writ, the President did not act arbitrarily.

No cogent reason has been submitted to warrant the rejection of such test. Indeed, the co-equality of
coordinate branches of the Government, under our constitutional system, seems to demand that the
test of the validity of acts of Congress and of those of the Executive be, mutatis mutandis,
fundamentally the same. Hence, counsel for petitioner Rogelio Arienda admits that the proper
standard is not correctness, but arbitrariness.

Did public safety require the suspension of the privilege of the writ of habeas corpus decreed in
Proclamation No. 889, as amended? Petitioners submit a negative answer upon the ground: (a) that
there is no rebellion; (b) that, prior to and at the time of the suspension of the privilege, the
Government was functioning normally, as were the courts; (c) that no untoward incident,
confirmatory of an alleged July-August Plan, has actually taken place after August 21, 1971; (d) that
the President's alleged apprehension, because of said plan, is non-existent and unjustified; and (e)
that the Communist forces in the Philippines are too small and weak to jeopardize public safety to
such extent as to require the suspension of the privilege of the writ of habeas corpus.

As above indicated, however, the existence of a rebellion is obvious, so much so that counsel for
several petitioners herein have admitted it.

With respect to the normal operation of government, including courts, prior to and at the time of the
suspension of the privilege, suffice it to say that, if the conditions were such that courts of justice no
longer functioned, a suspension of the privilege would have been unnecessary, there being no
courts to issue the writ of habeas corpus. Indeed, petitioners' reference to the normal operation of
courts as a factor indicative of the illegality of the contested act of the Executive stems, perhaps,
from the fact that this circumstance was adverted to in some American cases to justify the
invalidation therein decreed of said act of the Executive. Said cases involved, however, the
conviction by military courts of members of the civilian population charged with common crimes. It
was manifestly, illegal for military courts to assume jurisdiction over civilians so charged, when civil
courts were functioning normally.

Then, too, the alleged absence of any untoward incident after August 21, 1971, does not necessarily
bear out petitioners' view. What is more, it may have been due precisely to the suspension of the
privilege. To be sure, one of its logical effects is to compel those connected with the insurrection or
rebellion to go into hiding. In fact, most of them could not be located by the authorities, after August
21, 1971.

The alleged July-August Plan to terrorize Manila is branded as incredible, upon the theory that,
according to Professor Egbal Ahman of Cornell University, "guerrilla use of terror ... is sociological
and psychologically selective," and that the indiscriminate resort to terrorism is bound to boomerang,
for it tends to alienate the people's symphaty and to deprive the dissidents of much needed mass
support. The fact, however, is that the violence used is some demonstrations held in Manila in 1970
and 1971 tended to terrorize the bulk of its inhabitants. It would have been highly imprudent,
therefore, for the Executive to discard the possibility of a resort to terrorism, on a much bigger scale,
under the July-August Plan.

We will now address our attention to petitioners' theory to the effect that the New People's Army of
the Communist Party of the Philippines is too small to pose a danger to public safety of such
magnitude as to require the suspension of the privilege of the writ of habeas corpus. The flaw in
petitioners' stand becomes apparent when we consider that it assumes that the Armed Forces of the
Philippines have no other task than to fight the New People's Army, and that the latter is the only
threat — and a minor one — to our security. Such assumption is manifestly erroneous.

The records before Us show that, on or before August 21, 1971, the Executive had information and
reports — subsequently confirmed, in many respects, by the abovementioned Report of the Senate
Ad-Hoc Committee of Seven   — to the effect that the Communist Party of the Philippines does not
25

merely adhere to Lenin's idea of a swift armed uprising; that it has, also, adopted Ho Chi Minh's
terrorist tactics and resorted to the assassination of uncooperative local official; that, in line with this
policy, the insurgents have killed 5 mayors, 20 barrio captains and 3 chiefs of police; that there were
fourteen (14) meaningful bombing incidents in the Greater Manila Area in 1970; that the
Constitutional Convention Hall was bombed on June 12, 1971; that, soon after the Plaza Miranda
incident, the NAWASA main pipe, at the Quezon City-San Juan boundary, was bombed; that this
was followed closely by the bombing of the Manila City Hall, the COMELEC building, the Congress
Building and the MERALCO substation at Cubao, Quezon City; and that the respective residences of
Senator Jose J. Roy and Congressman Eduardo Cojuangco were, likewise, bombed, as were the
MERALCO main office premises, along Ortigas Avenue, and the Doctor's Pharmaceuticals, Inc.
Building, in Caloocan City.

Petitioners, similarly, fail to take into account that — as per said information and reports — the
reorganized Communist Party of the Philippines has, moreover, adopted Mao's concept of protracted
people's war, aimed at the paralyzation of the will to resist of the government, of the political,
economic and intellectual leadership, and of the people themselves; that conformably to such
concept, the Party has placed special emphasis upon a most extensive and intensive program of
subversion by the establishment of front organizations in urban centers, the organization of armed
city partisans and the infiltration in student groups, labor unions, and farmer and professional
groups; that the CPP has managed to infiltrate or establish and control nine (9) major labor
organizations; that it has exploited the youth movement and succeeded in making Communist fronts
of eleven (11) major student or youth organizations; that there are, accordingly, about thirty (30)
mass organizations actively advancing the CPP interests, among which are the Malayang Samahan
ng Magsasaka (MASAKA), the Kabataang Makabayan (KM), the Movement for the Advancement of
Nationalism (MAN), the Samahang Demokratiko ng Kabataan (SDK), the Samahang Molave (SM)
and the Malayang Pagkakaisa ng Kabataang Pilipino(MPKP); that, as of August, 1971, the KM had
two hundred forty-five (245) operational chapters throughout the Philippines, of which seventy-three
(73) were in the Greater Manila Area, sixty (60) in Northern Luzon, forty-nine (49) in Central Luzon,
forty-two (42) in the Visayas and twenty-one (21) in Mindanao and Sulu; that in 1970, the Party had
recorded two hundred fifty-eight (258) major demonstrations, of which about thirty-three (33) ended
in violence, resulting in fifteen (15) killed and over five hundred (500) injured; that most of these
actions were organized, coordinated or led by the aforementioned front organizations; that the
violent demonstrations were generally instigated by a small, but well-trained group of armed
agitators; that the number of demonstrations heretofore staged in 1971 has already exceeded those
of 1970; and that twenty-four (24) of these demonstrations were violent, and resulted in the death of
fifteen (15) persons and the injury of many more.

Subsequent events — as reported — have also proven that petitioners' counsel have
underestimated the threat to public safety posed by the New People's Army. Indeed, it appears
that, since August 21, 1971, it had in Northern Luzon six (6) encounters and staged one (1) raid, in
consequence of which seven (7) soldiers lost their lives and two (2)others were wounded, whereas
the insurgents suffered five (5) casualties; that on August 26, 1971, a well-armed group of NPA,
trained by defector Lt. Victor Corpus, attacked the very command port of TF LAWIN in Isabela,
destroying two (2) helicopters and one (1) plane, and wounding one (1) soldier; that the NPA had in
Central Luzon a total of four (4) encounters, with two (2) killed and three (3) wounded on the side of
the Government, one (1) BSDU killed and three (3) NPA casualties; that in an encounter at Botolan,
Zambales, one (1) KM-SDK leader, an unidentified dissident, and Commander Panchito, leader of
the dissident group were killed; that on August 26, 1971, there was an encounter in the barrio of San
Pedro. Iriga City, Camarines Sur, between the PC and the NPA, in which a PC and two (2) KM
members were killed; that the current disturbances in Cotabato and the Lanao provinces have been
rendered more complex by the involvement of the CPP/NPA, for, in mid-1971, a KM group, headed
by Jovencio Esparagoza, contacted the Higa-onan tribes, in their settlement in Magsaysay, Misamis
Oriental, and offered them books, pamphlets and brochures of Mao Tse Tung, as well as conducted
teach-ins in the reservation; that Esparagoza an operation of the PC in said reservation; and that
there are now two (2) NPA cadres in Mindanao.

It should, also, be noted that adherents of the CPP and its front organizations are, according to
intelligence findings, definitely capable of preparing powerful explosives out of locally available
materials; that the bomb used in the Constitutional Convention Hall was a "clay-more" mine, a
powerful explosive device used by the U.S. Army, believed to have been one of many pilfered from
the Subic Naval Base a few days before; that the President had received intelligence information to
the effect that there was a July-August Plan involving a wave of assassinations, kidnappings,
terrorism and mass destruction of property and that an extraordinary occurence would signal the
beginning of said event; that the rather serious condition of peace and order in Mindanao,
particularly in Cotabato and Lanao, demanded the presence therein of forces sufficient to cope with
the situation; that a sizeable part of our armed forces discharge other functions; and that the
expansion of the CPP activities from Central Luzon to other parts of the country, particularly Manila
and its suburbs, the Cagayan Valley, Ifugao, Zambales, Laguna, Quezon and Bicol Region, required
that the rest of our armed forces be spread thin over a wide area.

Considering that the President was in possession of the above data — except those related to
events that happened after August 21, 1971 — when the Plaza Miranda bombing took place, the
Court is not prepared to hold that the Executive had acted arbitrarily or gravely abused his discretion
when he then concluded that public safety and national security required the suspension of the
privilege of the writ, particularly if the NPA were to strike simultaneously with violent demonstrations
staged by the two hundred forty-five (245) KM chapters, all over the Philippines, with the assistance
and cooperation of the dozens of CPP front organizations, and the bombing or water mains and
conduits, as well as electric power plants and installations — a possibility which, no matter how
remote, he was bound to forestall, and a danger he was under obligation to anticipate and arrest.

He had consulted his advisers and sought their views. He had reason to feel that the situation was
critical — as, indeed, it was — and demanded immediate action. This he took believing in good faith
that public safety required it. And, in the light of the circumstances adverted to above, he had
substantial grounds to entertain such belief.

Petitioners insist that, nevertheless, the President had no authority to suspend the privilege in the
entire Philippines, even if he may have been justified in doing so in some provinces or cities thereof.
At the time of the issuance of Proclamation No. 889, he could not be reasonably certain, however,
about the placed to be excluded from the operation of the proclamation. He needed some time to
find out how it worked, and as he did so, he caused the suspension to be gradually lifted, first, on
September 18, 1971, in twenty-seven (27) provinces, three (3) sub-provinces and twenty six (26)
cities; then, on September 25, 1971, in order fourteen (14) provinces and thirteen (13) cities; and,
still later, on October 4, 1971, in seven (7) additional provinces and four (4) cities, or a total of forty-
eight (48) provinces, three (3) sub-provinces and forth-three (43) cities, within a period of forty-five
(45) days from August 21, 1971.

Neither should We overlook the significance of another fact. The President could have declared
a general suspension of the privilege. Instead, Proclamation No. 889 limited the suspension to
persons detained "for crimes of insurrection or rebellion, and all other crimes and offenses
committed by them in furtherance or on the occasion thereof, or incident thereto, or in connection
therewith." Even this was further limited by Proclamation No. 889-A, which withdrew from the
coverage of the suspension persons detained for other crimes and offenses committed "on the
occasion" of the insurrection or rebellion, or "incident thereto, in or connection therewith." In fact, the
petitioners in L-33964, L-33982 and L-34004 concede that the President had acted in good faith.

In case of invasion, insurrection or rebellion or imminent danger thereof, the President has, under
the Constitution, three (3) courses of action open to him, namely: (a) to call out the armed forces; (b)
to suspend the privilege of the writ of habeas corpus; and (c) to place the Philippines or any part
thereof under martial law. He had, already, called out the armed forces, which measure, however,
proved inadequate to attain the desired result. Of the two (2)other alternatives, the suspension of the
privilege is the least harsh.

In view of the foregoing, it does not appear that the President has acted arbitrary in issuing
Proclamation No. 889, as amended, nor that the same is unconstitutional.

III

The next question for determination is whether petitioners herein are covered by said Proclamation,
as amended. In other words, do petitioners herein belong to the class of persons as to whom
privilege of the writ of habeas corpus has been suspended?

In this connection, it appears that Bayani Alcala, one of the petitioners in L-33964, Gerardo Tomas,
petitioner in L-34004, and Reynaldo Rimando, petitioner in L-34013, were, on November 13, 1971,
released "permanently" — meaning, perhaps, without any intention to prosecute them — upon the
ground that, although there was reasonable ground to believe that they had committed an offense
related to subversion, the evidence against them is insufficient to warrant their prosecution; that
Teodosio Lansang, one of the petitioners in L-33964, Rogelio Arienda, petitioner in L-33965,
Nemesio Prudente, petitioner in L-33982, Filomeno de Castro and Barcelisa C. de Castro, for whose
benefit the petition in L-34039 was filed, and Antolin Oreta, Jr., petitioner in L-34265, were, on said
date, "temporarily released"; that Rodolfo del Rosario, one of the petitioners in
L-33964, Victor Felipe, an intervenor in L-33964, L-33965 and L-33973, as well as Luzvimindo
David, petitioner in L-33973, and Gary Olivar, petitioner in L-34339, are still under detention and,
hence, deprived of their liberty, they — together with over forty (40) other persons, who are at large
— having been accused, in the Court of First Instance of Rizal, of a violation of section 4 of Republic
Act No. 1700 (Anti-Subversion Act); and that Angelo delos Reyes and Teresito Sison, intervenors in
said L-33964, L-33965 and
L-33973, are, likewise, still detained and have been charged — together with over fifteen (15) other
persons, who are, also, at large — with another violation of said Act, in a criminal complaint filed with
the City Fiscal's Office of Quezon City.

With respect to Vicente Ilao and Juan Carandang — petitioners in L-33965 — who were released as
early as August 31, 1971, as well as to petitioners Nemesio Prudente, Teodosio Lansang, Rogelio
Arienda, Antolin Oreta, Jr., Filomeno de Castro, Barcelisa C. de Castro, Reynaldo Rimando,
Gerardo Tomas and Bayani Alcala, who were released on November 13, 1971, and are no longer
deprived of their liberty, their respective petitions have, thereby, become moot and academic, as far
as their prayer for release is concerned, and should, accordingly, be dismissed, despite the
opposition thereto of counsel for Nemesio Prudente and Gerardo Tomas who maintain that, as long
as the privilege of the writ remains suspended, these petitioners might be arrested and detained
again, without just cause, and that, accordingly, the issue raised in their respective petitions is not
moot. In any event, the common constitutional and legal issues raised in these cases have, in fact,
been decided in this joint decision.

Must we order the release of Rodolfo del Rosario, one of the petitioners in
L-33964, Angelo de los Reyes, Victor Felipe and Teresito Sison, intervenors in L-33964, L-33965
and L-33973, Luzvimindo David, petitioner in L-33973, and Gary Olivar, petitioner in L-34339, who
are still detained? The suspension of the privilege of the writ was decreed by Proclamation No. 889,
as amended, for persons detained "for the crimes of insurrection or rebellion and other overt acts
committed by them in furtherance thereof."

The records shows that petitioners Luzvimindo David, Rodolfo del Rosario, Victor Felipe, Angelo de
los Reyes, Teresito Sison and Gary Olivar are accused in Criminal Case No. Q-1623 of the Court of
First Instance of Rizal with a violation of the Anti-Subversion Act and that the similar charge against
petitioners Angelo de los Reyes and Teresito Sison in a criminal complaint, originally filed with the
City Fiscal of Quezon City, has, also, been filed with said court. Do the offenses so charged
constitute one of the crimes or overt acts mentioned in Proclamation No. 889, as amended?

In the complaint in said Criminal Case No. 1623, it is alleged:

That in or about the year 1968 and for sometime prior thereto and thereafter up to
and including August 21, 1971, in the city of Quezon, Philippines, and elsewhere in
the Philippines, within the jurisdiction of this Honorable Court, the above-named
accused knowingly, wilfully and by overt acts became officers and/or ranking leaders
of the Communist Party of the Philippines, a subversive association as defined by
Republic Act No. 1700, which is an organized conspiracy to overthrow the
government of the Republic of the Philippines by force, violence, deceit, subversion
and other illegal means, for the purpose of establishing in the Philippines a
communist totalitarian regime subject to alien domination and control;

That all the above-named accused, as such officers and/or ranking leaders of the
Communist Party of the Philippines conspiring, confederating and mutual helping one
another, did then and there knowingly, wilfully, and feloniously and by overt acts
committed subversive acts all intended to overthrow the government of the Republic
of the Philippines, as follows:

1. By rising publicly and taking arms against the forces of the
government, engaging in war against the forces of the
government, destroying property or committing serious violence,
exacting contributions or diverting public lands or property from the
law purposes for which they have been appropriated;

2. By engaging by subversion thru expansion and requirement

activities not only of the Communist Party of the Philippines but also
of the united front organizations of the Communist Party of the
Philippines as the Kabataang Makabayan (KM), Movement for the
Democratic Philippines (MDP), Samahang Demokratikong Kabataan
(SDK), Students' Alliance for National Democracy (STAND),
MASAKA Olalia-faction, Student Cultural Association of the University
of the Philippines (SCAUP), KASAMA, Pagkakaisa ng Magbubukid
ng Pilipinas (PMP) and many others; thru agitation promoted by
rallies, demonstration and strikes some of them violent in nature,
intended to create social discontent, discredit those in power and
 weaken the people's confidence in the government; thru consistent
propaganda by publications, writing, posters, leaflets of similar
means; speeches, teach-ins, messages, lectures or other similar
means; or thru the media as the TV, radio or newspapers, all
intended to promote the Communist pattern of subversion;

3. Thru urban guerilla warfare characterized by assassinations,

bombings, sabotage, kidnapping and arson, intended to advertise the
movement, build up its morale and prestige, discredit and demoralize
the authorities to use harsh and repressive measures, demoralize the
people and weaken their confidence in the government and to
weaken the will of the government to resist.

That the following aggravating circumstances attended the commission of the

offense:

a. That the offense was committed in contempt of and with insult to the public
authorities;

b. That some of the overt acts were committed in the Palace of the Chief Executive;

c. That craft, fraud, or disguise was employed;

d. That the offense was committed with the aid of armed men;

e. That the offense was committed with the aid of persons under fifteen(15) years
old.

Identical allegations are made in the complaint filed with the City Fiscal of Quezon City, except that
the second paragraph thereof is slightly more elaborate than that of the complaint filed with the CFI,
although substantially the same.  26

In both complaints, the acts imputed to the defendants herein constitute rebellion and subversion, of
— in the language of the proclamation — "other overt acts committed ... in furtherance" of said
rebellion, both of which are covered by the proclamation suspending the privilege of the writ. It is
clear, therefore, that the crime for which the detained petitioners are held and deprived of their liberty
are among those for which the privilege of the writ of habeas corpus has been suspended.

Up to this point, the Members of the Court are unanimous on the legal principles enunciated.

After finding that Proclamation No. 889, as amended, is not invalid and that petitioners Luzvimindo
David, Victor Felipe, Gary Olivar, Angelo de los Reyes, Rodolfo del Rosario and Teresito Sison are
detained for and actually accused of an offense for which the privilege of the writ has been
suspended by said proclamation, our next step would have been the following: The Court, or a
commissioner designated by it, would have received evidence on whether — as stated in
respondents' "Answer and Return" — said petitioners had been apprehended and detained "on
reasonable belief" that they had "participated in the crime of insurrection or rebellion."

It is so happened, however, that on November 13, 1971 — or two (2) days before the proceedings
relative to the briefing held on October 28 and 29, 1971, had been completed by the filing   of the
27

summary of the matters then taken up — the aforementioned criminal complaints were filed against
said petitioners. What is more, the preliminary examination and/or investigation of the charges
contained in said complaints has already begun. The next question, therefore, is: Shall We now
order, in the cases at hand, the release of said petitioners herein, despite the formal and substantial
validity of the proclamation suspending the privilege, despite the fact that they are actually charged
with offenses covered by said proclamation and despite the aforementioned criminal complaints
against them and the preliminary examination and/or investigations being conducted therein?

The Members of the Court, with the exception of Mr. Justice Fernando, are of the opinion, and, so
hold, that, instead of this Court or its Commissioner taking the evidence adverted to above, it is best
to let said preliminary examination and/or investigation to be completed, so that petitioners' released
could be ordered by the court of first instance, should it find that there is no probable cause against
them, or a warrant for their arrest could be issued, should a probable cause be established against
them. Such course of action is more favorable to the petitioners, inasmuch as the preliminary
examination or investigation requires a greater quantum of proof than that needed to establish that
the Executive had not acted arbitrary in causing the petitioners to be apprehended and detained
upon the ground that they had participated in the commission of the crime of insurrection or
rebellion. And, it is mainly for the reason that the Court has opted to allow the Court of First Instance
of Rizal to proceed with the determination of the existence of probable cause, although ordinarily the
Court would have merely determined the existence of the substantial evidence of petitioners'
connection with the crime of rebellion. Besides, the latter alternative would require the reception of
evidence by this Court and thus duplicate the proceedings now taking place in the court of first
instance. What is more, since the evidence involved in the same proceedings would be substantially
the same and the presentation of such evidence cannot be made simultaneously, each proceeding
would tend to delay the other.

Mr. Justice Fernando is of the opinion — in line with the view of Mr. Justice Tuason, in Nava v.
Gatmaitan,   to the effect that "... if and when formal complaint is presented, the court steps in and
28

the executive steps out. The detention ceases to be an executive and becomes a judicial concern ..."
— that the filing of the above-mentioned complaint against the six (6) detained petitioners herein,
has the effect of the Executive giving up his authority to continue holding them pursuant to
Proclamation No. 889, as amended, even if he did not so intend, and to place them fully under the
authority of courts of justice, just like any other person, who, as such, cannot be deprived of his
liberty without lawful warrant, which has not, as yet, been issued against anyone of them, and that,
accordingly, We should order their immediate release. Despite the humanitarian and libertarian spirit
with which this view had been espoused, the other Members of the Court are unable to accept it
because:

(a) If the proclamation suspending the privilege of the writ of habeas corpus is valid — and We so
hold it to be — and the detainee is covered by the proclamation, the filing of a complaint or
information against him does not affect the suspension of said privilege, and, consequently, his
release may not be ordered by Us;

(b) Inasmuch as the filing of a formal complaint or information does not detract from the validity and
efficacy of the suspension of the privilege, it would be more reasonable to construe the filing of said
formal charges with the court of first instance as an expression of the President's belief that there are
sufficient evidence to convict the petitioners so charged and that hey should not be released,
therefore, unless and until said court — after conducting the corresponding preliminary examination
and/or investigation — shall find that the prosecution has not established the existence of a probable
cause. Otherwise, the Executive would have released said accused, as were the other petitioners
herein;
(c) From a long-range viewpoint, this interpretation — of the act of the President in having said
formal charges filed — is, We believe, more beneficial to the detainees than that favored by Mr.
Justice Fernando. His view — particularly the theory that the detainees should be released
immediately, without bail, even before the completion of said preliminary examination and/or
investigation — would tend to induce the Executive to refrain from filing formal charges as long as it
may be possible. Manifestly, We should encourage the early filing of said charges, so that courts of
justice could assume jurisdiction over the detainees and extend to them effective protection.

Although some of the petitioners in these cases pray that the Court decide whether the constitutional
right to bail is affected by the suspension of the privilege of the writ of habeas corpus, We do not
deem it proper to pass upon such question, the same not having been sufficiently discussed by the
parties herein. Besides, there is no point in settling said question with respect to petitioners herein
who have been released. Neither is necessary to express our view thereon, as regards those still
detained, inasmuch as their release without bail might still be decreed by the court of first instance,
should it hold that there is no probable cause against them. At any rate, should an actual issue on
the right to bail arise later, the same may be brought up in appropriate proceedings.

WHEREFORE, judgment is hereby rendered:

1. Declaring that the President did not act arbitrarily in issuing Proclamation No. 889, as amended,
and that, accordingly, the same is not unconstitutional;

2. Dismissing the petitions in L-33964, L-33965, L-33982, L-34004, L-34013, L-34039 and L-34265,
insofar as petitioners Teodosio Lansang, Bayani Alcala, Rogelio Arienda, Vicentellao, Juan
Carandang, Nemesio E. Prudente, Gerardo Tomas, Reynaldo Rimando, Filomeno M. de Castro,
Barcelisa C. de Castro and Antolin Oreta, Jr. are concerned;

3. The Court of First Instance of Rizal is hereby directed to act with utmost dispatch in conducting
the preliminary examination and/or investigation of the charges for violation of the Anti-Subversion
Act filed against herein petitioners Luzvimindo David, Victor Felipe, Gary Olivar, Angelo de los
Reyes, Rodolfo del Rosario and Teresito Sison, and to issue the corresponding warrants of arrest, if
probable cause is found to exist against them, or, otherwise, to order their release; and

4. Should there be undue delay, for any reason whatsoever, either in the completion of the
aforementioned preliminary examination and/or investigation, or in the issuance of the proper orders
or resolution in connection therewith, the parties may by motion seek in these proceedings the
proper relief.

5. Without special pronouncement as to costs. It is so ordered.

Reyes, J.B.L., Makalintal, Zaldivar, Teehankee, Barredo, Villamor and Makasiar, JJ., concur.

Separate Opinions

 
CASTRO and BARREDO, JJ., concurring:

While concurring fully in the opinion of the Court, we nevertheless write separately to answer, from
our own perspective, a point which Mr. Justice Fernando makes in his dissent. His view, as we
understand it, is that while an individual may be detained beyond the maximum detention period
fixed by law when the privilege of the writ of habeas corpus is suspended, such individual is
nevertheless entitled to be released from the very moment a formal complaint is filed in court against
him. The theory seems to be that from the time the charge is filed, the court acquires, because the
executive officials abdicate, jurisdiction.

This view is based on the separate opinion of Mr. Justice Pedro Tuason in Nava vs.
Gatmaitan.  Justice Tuason, in part, said:
1

All persons detained for investigation by the executive department are under
executive control. It is here where the Constitution tells the court to keep their hands
off — unless the cause of the detention be for an offense other than rebellion or
insurrection, which is another matter.

By the same token, if and when a formal complaint is presented, the court steps in
and the executive steps out. The detention ceases to be an executive and becomes
a judicial concern...

But the issue to which the Supreme Court Justices in Nava individually addressed themselves is
radically disparate from that raised in these cases. There the question was whether after the
detainees had been formally charged in court and an order for their arrest had been issued, they
were entitled to bail. It was on that question that the Court was split 5 to 4, and it was the opinion of
Justice Tuason, one of the five, that after the detainees had been accused in court, the question of
release on bail was a matter that the court should decide.

Upon the other hand, the question here presented is whether the detainees should be released
forthwith upon the filing of charges against them in court and cannot thereafter be re-arrested except
only by court order. This is a totally different question. It is our submission that they are not entitled
to be released. The dissent is, we believe, based on the fallacy that when a formal charge is filed
against a person he is thereby surrendered to the court and the arresting officer is thereby divested
of custody over him. Except in a metaphorical sense, the detainee is not delivered or surrendered at
all to the judicial authorities. What the phrase "delivered to the court" simply means is that from the
time a person is indicted in court, the latter acquires jurisdiction over the subject-matter.   The
2

detainee remains in the custody of the detaining officer, under the same authority invoked for the
detention, until the court decides whether there is probable cause to order his arrest.

Under ordinary circumstances, when a person is arrested without a warrant and is charged in court,
he is not released. He is held until the judicial authority orders either his release or his confinement.
It is no argument to say that under Article III, section 1 (3) of the Constitution only a court can order
the arrest of an individual. Arrests without warrant are familiar occurrences, and they have been
upheld as constitutional.3

What is more, the privilege of the writ was suspended precisely to authorize the detention of persons
believed to be plotting against the security of the State until the courts can act on their respective
cases. To require their peremptory release upon the mere filing of charges against them, without
giving the proper court opportunity and time to decide the question of probable cause, would
obviously be to defeat the very basic purpose of the suspension. We think our role as judges in the
cases at bar is clear. After finding that the Presidential decree was validly issued, we should give it
effect. To uphold its validity and then try to dilute its efficacy in the name of personal liberty is, we
believe, actually to doubt the constitutionality of the exercise of the Presidential prerogative.

Not only that. If the rule were that the detainees must be released upon the mere filing of charges
against them in court, it is unlikely that the executive officials would have filed the charges because
of their awareness of the continuing danger which in the first place impelled the arrest of the
detainees, and the end result would be to inflict on the latter a much longer period of deprivation of
personal liberty than is warranted.

Whatever our personal views may be of the power to suspend, the fact remains that the power is
there, writ large and indubitable in the Constitution. It is far too easy to write anthologies on the side
of civil liberties or on the side of governmental order, depending on one's inclination or commitment.
But that is not our function. Constitutional issues, it has been said, do not take the form of right
versus wrong, but of right versus right. And the Court's function, as we see it, is, fundamentally to
moderate the clash of values, and not to inflate them into constitutional dimensions.

Where it is possible, we should avoid passing on a constitutional question. But where there is no
escape from the duty of abstention, our further duty is to decide the question of constitutional validity
on a less heroic plane.

And that is what we have tried to do in pointing out that the ordinary rules of criminal procedure
provide an adequate answer to Mr. Justice Fernando's problem. That solution is for the arresting
officer to hold the person detained until the court can act, with the only difference that where the
privilege of the writ of habeas corpus is available, the arresting officer must release the detainee
upon the expiration of the maximum detention time allowed by law, if he has not delivered the
detainee to the court within that period.

To insist on the procedural aspect of a constitutional problem as a manner of solving it is, after all,
no less to be libertarian. Insistence on it is, to us, and in point of fact, one of the cornerstone of
liberalism.

FERNANDO, J., concurring and dissenting:

The decision of the Court penned by the Chief Justice easily ranks with his many landmark opinions
in Constitutional Law and is in the tradition of the great judicial pronouncements from this Tribunal.
Skillful in its analysis, impressive as to its learning, comprehensive in its scope, and compelling in its
logic, it exerts considerable persuasive force. There is much in it therefore to which concurrence is
easily yielded. I find it difficult however to accept the conclusion that the six petitioners still under
detention should not be set free. It is for me a source of deep regret that having gone quite far in
manifesting the utmost sympathy for and conformity with the claims of civil liberties, it did not go
farther. Candor induces the admission though that the situation realistically viewed may not justify
going all the way. Nonetheless the deeply-rooted conviction as to the undoubted primacy of
constitutional rights, even under circumstances the least propitious, precludes me from joining my
brethren in that portion of the decision reached. Nor should I let this opportunity pass without
acknowledging the fairness, even the generosity, in the appraisal of my position in the position of the
Chief Justice.

1. The function of judicial review fitly characterized as both delicate and awesome is never more so
than when the judiciary is called upon to pass on the validity of an act of the President arising from
the exercise of a power granted admittedly to cope with an emergency or crisis situation. More
specifically, with reference to the petitions before us, the question that calls for prior consideration is
whether the suspension of the privilege of the writ of habeas corpus is tainted by constitutional
infirmity. What the President did attested to an executive determination of the existence of the
conditions that warranted such a move. For one of the mandatory provisions of the Bill of Rights  is 1

that no such suspension is allowable, except in cases of invasion, insurrection or rebellion, when the
public safety requires, and, even, then, only in such places and for such period of time as may be
necessary.  There is the further provision that the constitutional official so empowered to take such a
2

step is the President.  The exceptional character of the situation is thus underscored. The
3

presumption would seem to be that if such a step were taken, there must have been a conviction on
the part of the Executive that he could not, in the fulfillment of the responsibility entrusted to him,
avoid doing so. That decision is his to make; it is not for the judiciary. It is therefore encased in the
armor of what must have been a careful study on his part, in the light of relevant information which
as Commander-in-Chief he is furnished, ordinarily beyond the ken of the courts. When it is
considered further that the Constitution does admit that the sphere of individual freedom contracts
and the scope of governmental authority expands during times of emergency, it becomes manifest
why an even greater degree of caution and circumspection must be exercised by the judiciary when,
on this matter, it is called upon to discharge the function of judicial review.

2. Not that the judiciary has any choice on the matter. That view would indict itself for unorthodoxy if
it maintains that the existence of rebellion suffices to call for the disregard of the applicable
constitutional guarantees. Its implication would be that the Constitution ceases to be operative in
times of danger to national safety and security. Well has the American Supreme Court in the leading
case of Ex-parte Milligan  stated: "The Constitution is a law for rulers and for people equally in war
4

and in peace and covers with the shield of its protection all classes of men at all times and under all
circumstances." This ringing affirmation should at the very least give pause to those troubled by the
continuing respect that must be accorded civil liberties under crisis conditions. The fact that the
Constitution provides for only one situation where a provision of the Bill of Rights may be
suspended, emphasizes the holding in the above-cited Milligan case that the framers of the
Constitution "limited the suspension to one great right and left the rest to remain forever inviolable."
While perhaps at times likely to give rise to difficulties in the disposition of cases during a troubled
era where a suspension has been decreed, such a view is to be taken into careful consideration.

3. For it is a truism that he Constitution is paramount, and the Supreme Court has no choice but to
apply its provisions in the determination of actual cases and controversies before it. Nor is this all.
The protection of the citizen and the maintenance of his constitutional rights is one of the highest
duties and privileges of the judiciary.  The exercise thereof according to Justice Laurel requires that it
5

gives effect to the supreme law to the extent in clear cases of setting aside legislative and executive
action.  The supreme mandates of the Constitution are not to be loosely brushed aside.  Otherwise,
6 7

the Bill or Rights might be emasculated into mere expressions of sentiment.  Speaking of this Court,
8

Justice Abad Santos once pertinently observed: "This court owes its own existence to that great
instrument and derives all its powers therefrom. In the exercise of its powers and jurisdiction, this
court is bound by the provisions of the Constitution."  Justice Tuason would thus apply the
9

constitutional rights with undeviating rigidity: "To the plea that the security of the State would be
jeopardized by the release of the defendants on bail, the answer is that the existence of danger is
never a justification for courts to tamper with the fundamental rights expressly granted by the
Constitution. These rights are immutable, inflexible, yielding to no pressure of convenience,
expediency, or the so-called 'judicial statesmanship.' The Legislature itself can not infringe them, and
no court conscious of its responsibilities and limitations would do so. If the Bill of Rights are
incompatible with stable government and a menace to the Nation, let the Constitution be amended,
or abolished. It is trite to say that, while the Constitution stands, the courts of justice as the repository
of civil liberty are bound to protect and maintain undiluted individual rights." 10

It is in that context, to my mind, that the petitions before us should be appraised, for in terms of
physical, as distinguished from intellectual, liberty, the privilege of the writ of habeas
corpus occupies a place second to none. As was stressed in Gumabon v. Director of
Prisons:   "Rightly then could Chafee refer to the writ 'as the most important human rights provision'
11

in the fundamental law." Care is to be taken then lest in the inquiry that must be undertaken to
determine whether the constitutional requisites justifying a suspension are present, the effects
thereof as to the other civil liberties are not fully taken into account. It affords no justification to say
that such a move was prompted by the best motives and loftiest of intentions. Much less can there
be acceptance of the view, as contended by one of the counsel for respondents, that between the
safety of the overwhelming majority of Filipinos and the claims of the petitioners to liberty, the former
must prevail. That is to indulge in the vice of over simplification. Our fundamental postulate is that
the state exists to assure individual rights, to protect which governments are instituted deriving their
just powers from the consent of the governed. "The cardinal article of faith of our civilization,"
according to Frank further, "is the inviolable character of the individual." 12

4. With all the admitted difficulty then that the function of judicial review presents in passing upon the
executive determination of suspending the privilege of the writ, there is still no way of evading such a
responsibility, except on the pain of judicial abdication. It may not admit of doubt that on this matter
this Court, unlike the President, cannot lay claim to the experience and the requisite knowledge that
would instill confidence in its decisions. That is no warrant for an unquestioning and uncritical
acceptance of what was done. It cannot simply fold its hands and evince an attitude of unconcern. It
has to decide the case. This it does by applying the law to the facts as found, as it would in ordinary
cases. If petitioners then can make out a case of an unlawful deprivation of liberty, they are entitled
to the writ prayed for. If the suspension of the privilege be the justification, they could, as they did,
challenge its validity. To repeat, this Court, even if denied the fullness of information and the
conceded grasp of the Executive still must adjudicate the matter as best it can. It has to act not by
virtue of its competence but by the force of its commission a function authenticated by history.   That
13

would be to live up to its solemn trust, to paraphrase Cardozo, of preserving the great ideals of
liberty and equally against the erosion of possible encroachments, whether minute or
extensive.   Even if there be no showing then of constitutional infirmity, at least one other branch of
14

the government, that to which such an awesome duty had been conferred has had the opportunity of
reflecting on the matter with detachment, with objectivity, and with full awareness of the commands
of the Constitution as well as the realities of the situation.

5. Nor is the power of the judiciary to so inquire, negated as contended by respondents, by reliance
on the doctrine of political questions. 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.   It has likewise been employed loosely to characterize a suit where
15

the party proceeded against is the President or Congress, or any branch thereof.   If to be de-limited
16

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 Presidency or Congress. It is thus beyond the competence of the judiciary to pass
upon.   Unless, clearly falling within the above formulation, the decision reached by the political
17

branches whether in the form of a congressional act or an executive order could be tested in court.
Where private rights are affected, the judiciary has no choice but to look into its validity. It is not to be
lost sight of that such a power comes into play if there is an appropriate proceeding that may be filed
only after either coordinate branch has acted. Even when the Presidency or Congress possesses
plenary power, its improvidence exercise or the abuse thereof, if shown, may give rise to a
justiciable controversy.   For the constitutional grant of authority is not usually unrestricted. There
18

are limits to what may be done and how it is to be accomplished. Necessarily then, the courts in the
proper exercise of judicial review could inquire into the question of whether or not either of the two
coordinate branches has adhered to what is laid down by the Constitution. The question thus posed
is judicial rather than political. So it is in the matter before us so clearly explained in the opinion of
the Chief Justice.
6. The doctrine announced in Montenegro v. Castañeda   that such a question is political has thus
19

been laid to rest. It is about time too. It owed its existence to the compulsion exerted by Barcelon v.
Baker, a 1905 decision.   This Court was partly misled by an undue reliance in the latter case on
20

what it considered to be authoritative pronouncements from such illustrious American jurists as

Marshall, Story, and Taney. That is to misread what was said by them. This is most evidence in the
case of Chief Justice Marshall, whose epochal Marbury v. Madison   was cited. Why that was so is
21

difficult to understand. For it speaks to the contrary. It was by virtue of this decision that the function
of judicial review owes its origin notwithstanding the absence of any explicit provision in the
American Constitution empowering the courts to do so. Thus: "It is emphatically the province and
duty of the judicial department to say what the law is. Those who apply the rule to particular cases,
must of necessity expound and interpret that rule. If two laws conflict with each other, the courts
must decide on the operation of each. So if a law be in opposition to the constitution: if both the law
and the constitution apply to a particular case, so that the court must either decide that case
conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding
the law; the court must determine which of these conflicting rules governs the case. This is of the
very essence of judicial duty. If, the, the courts are to regard the constitution, and the constitution is
superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must
govern the case to which they both apply."  22

Nor is the excerpt from Justice Story, speaking for the United States Supreme Court, in Martin v.
Mott,   as made clear in the opinion of the Chief Justice, an authority directly in point. There, a
23

militiaman had been convicted of failing to respond to a call, made under the Act of 1795, to serve
during the War of 1812. His property was taken to satisfy the judgment. He brought an action of
replevin. The American Constitution empowers its Congress "to provide for calling forth the Militia" in
certain cases, and Congress did provide that in those cases the President should have authority to
make the call. All that Justice Story did in construing the statute in the light of the language and
purpose of her Constitution was to recognize the authority of the American President to decide
whether the exigency has arisen. In stating that such power was exclusive and thus had a
conclusive effect, he relied on the language employed, impressed with such a character. The
constitutional provision on the suspension of the privilege of the writ is, as shown, anything but
that.   Chief Justice Taney, in Luther v. Borden,   likewise had to deal with a situation involving the
24 25

calling out of the militia. As a matter of fact, an eminent commentator speaking of the two above
decisions had this apt observation: "The common element in these opinions would seem to be a
genuine judicial reluctance to speak in a situation where the voice of the Court, even if heard, could
not have any effect. More than this, both Story and Taney seem to share the suspicion, unusual in
them, that under a popular form of government there are certain questions that the political branches
must be trusted to answer with finality."   What was said next is even more pertinent. Thus: "It would
26

be dangerous and misleading to push the principles of these cases too far, especially the doctrine of
'political questions' as implied in Luther v. Borden. Given the opportunity to afford a grievously
injured citizen relief from a palpably unwarranted use of presidential or military power, especially
when the question at issue falls in the penumbra between the 'political' and the 'justiciable', the Court
will act as if it had never heard of this doctrine and its underlying assumption that there are some
powers against which the judiciary simply cannot be expected to act as the last line of defense."   It27

would thus seem evidence that support for the hitherto prevailing Montenegro ruling was rather frail.
Happily, with our decision, it is no longer capable of the mischief to which it does lend itself of an
undue diminution of judicial power to the prejudice of constitutional rights.

7. With such presidential determination of the existence of the conditions required by the
Constitution to justify a suspension of the privilege of the writ no longer conclusive on the other
branches, this Court may thus legitimately inquire into its validity. The question before us, it bears
repeating, is whether or not Proclamation No. 889 as it now stands, not as it was originally issued, is
valid. The starting point must be a recognition that the power to suspend the privilege of the writ
belongs to the Executive, subject to limitations. So the Constitution provides, and it is to be
respected. The range of permissible inquiry to be conducted by this Tribunal is necessarily limited
then to the ascertainment of whether or not such a suspension, in the light of the credible information
furnished the President, was arbitrary. Such a test met with the approval of the chief counsel for
petitioners, Senator Jose W. Diokno. To paraphrase Frankfurter, the question before the judiciary is
not the correctness but the reasonableness of the action taken. One who is not the Executive but
equally knowledgeable may entertain a different view, but the decision rests with the occupant of the
office. As would be immediately apparent even from a cursory perusal of the data furnished the
President, so impressively summarized in the opinion of the Chief Justice, the imputation of
arbitrariness would be difficult to sustain. Moreover, the steps taken by him to limit the area where
the suspension operates as well as his instructions attested to a firm resolve on his part to keep
strictly within the bounds of his authority. Under the circumstances, the decision reached by the
Court that no finding of unconstitutionality is warranted commends itself for approval. The most that
can be said is that there was a manifestation of presidential power well-nigh touching the extreme
border of his conceded competence, beyond which a forbidden domain lies. The requisite showing
of either improvidence or abuse has not been made.

8. Why the dissent then. My basic premise is that the suspension of the privilege of the writ partakes
of an executive action which if valid binds all who are within its operations. The function of enacting a
legal norm general in character appertains to either Congress or the President. Its specific
application to particular individuals, like petitioners here, is however a task incumbent on the
judiciary. What is more, as had just been explained, its validity maybe tested in courts. Even if valid,
any one may seek judicial determination as to whether he is embraced within its terms. After our
declaration of the validity of the Proclamation No. 889 as amended, the next question is its
applicability to petitioners. I am the first to recognize the meticulous care with which the Chief
Justice, after reaching the conclusion that petitioners are covered by the suspension, saw to it that
their constitutional rights are duly safeguarded in whatever proceedings they would have thereafter
to face. There is thus as assurance that as far as human foresight can anticipate matters, the
possibility of abuse is minimized.

The matter, for me, could be viewed independently of whether or not petitioners, by the conduct
imputed to them, could be detained further by virtue of the suspension of the privilege of the writ. For
admittedly, a supervening fact, the Executive's determination to have them charged according to the
ordinary procedural rules, did present itself. There was thus introduced an element decisive in its
consequences. They are entitled to treatment no different from that accorded any other individual
facing possible criminal charges. The opinion of the Chief Justice is correct in pointing out that such
an approach follows the dictum of Justice Tuason, speaking for himself in Nava v.
Gatmaitan,   where a majority of five, lacking just one vote to enable this Court to reach a binding
28

decision, did arrive at the conclusion that the suspension of the privilege of the writ does not
suspend the right to bail. Thus: "By the same token, if and when formal complaint is presented, the
court steps in and the executive steps out. The detention ceases to be an executive and becomes a
judicial concern. Thereupon the corresponding court assumes its role and the judicial process takes
its course to the exclusion of the executive or the legislative departments. Hence forward, the
accused is entitled to demand all the constitutional safeguards and privileges essential to due
process."   Parenthetically, it may be observed that the above view reflects the stand taken by
29

Justice Recto, fortified by Justice Laurel, drawing heavily on continental juristic thought, both of
whom, having retired from the bench and thereafter having been elected to the Senate, were invited
to appear as amici curiae in the Nava case.

It would follow to my way of thinking then that the petitioners still detained ought not to be further
deprived of their liberty in the absence of a warrant of arrest for whatever offense they may be held
to answer, to be issued by a judge after a finding of probable cause. That is to comply with the
constitutional requirement against unreasonable search and seizure.   Moreover, to keep them in
30

confinement after the ordinary processes of the law are to be availed of, as thereafter decreed by the
Executive itself is to ignore the safeguard in the Bill of Rights that no person shall be held to answer
for a criminal offense without due process of law.   That would explain why with full recognition of the
31

sense of realism that infuses the opinion of the Court, I cannot, from the above standpoint, reach the
same conclusion they did. These six petitioners, Rodolfo del Rosario, Victor Felipe, Luzvimindo,
David, Gary Olivar, Angelo de los Reyes and Teresito Sison, have, for me, become immune from the
operation of the proclamation suspending the privilege of the writ of habeas corpus and are thus
entitled to their liberty. I am reinforced in my conviction by the well-settled principle of constitutional
construction that if there are two possible modes of interpretation, that one which raises the least
constitutional doubt should be preferred. Certainly, to my way of thinking, the choice is obvious. That
interpretation which would throw the full mantle of protection afforded by the Constitution to those
unfortunate enough to be caught in the meshes of criminal law is more in keeping with the high
estate accorded constitutional rights.

There is another consideration that strengthens my conviction on the matter. The language of the
Constitution would seem to imply at the most that the suspension of the privilege of the writ renders
it unavailable for the time being. Still there are authorities sustaining the view that preventive
detention subject to the test of good faith is allowable.  Such a doctrine is no doubt partly traceable
32

to Anglo-American legal history where as pointed out by Maine: "Substantive law has at first the look
of being gradually secreted in the interstices of procedure."   The writ of habeas corpus then is more
33

than just an efficacius device or the most speedy means of obtaining one's liberty. It has become a
most valuable substantive right. It would thus serve the cause of constitutional rights better if the
Tuason dictum as to the judicial process supplanting executive rule the moment charges are filed be
accorded acceptance. Thereby the number of individuals who would have to submit to further
detention, that may well turn out to be unjustified, would be reduced. What is more, greater fidelity is
manifested to the principle that liberty is the rule and restraint the exception.

I am not of course insensible to the observation in the opinion of the Court that this concept could be
an obstacle to the early resumption of the ordinary judicial process as the Executive might be
minded to postpone resort to it, considering that there would necessarily be an end to the detention
at that early stage of individuals who continue to pose risk to the safety of the government. It does
occur to me, however, that the presumption should be that the high executive dignitaries can be
trusted to act in accordance with the dictates of good faith and the command of the Constitution. At
least, such seems to be the case now. The opinion of the Court is quite explicit as to the measures
taken to minimize the possibility of abuse from officials in the lower category, who in their zeal or
even from less worthy motives might make a mockey of the other constitutional rights. That is as it
should be. It should continue to be so even if there be acceptance of the doctrine enunciated by
Justice Tuason. There is, for me at least, no undue cause for pessimism.

These is to my mind another reinforcement to this approach to the question before us, perhaps one
based more on policy rather than strictly legal considerations. The petitioners who have not been
released are youth leaders, who for motives best known to them, perhaps excess of idealism,
impatience with existing conditions, even overweening ambition, clamor for change, apparently
oblivious at times that it could be accomplished through means of which the law does not
disapprove. It would be premature at this stage to say whether or not their activities have incurred for
them a penal sanction, which certainly would be appropriate if their conduct is beyond the pale. Even
they should recognize that the existing order has the right to defendant itself against those who
would destroy it. Nonetheless as a constitutional democracy can justifiably pride itself on its
allegiance to ways of persuasion rather than coercion, the most meticulous observance of the free
way of life seems to me, even at this stage, not without its beneficent influence on their future course
of conduct. This is not by any means to intimate that my brethren view matters differently. Far from
it. Any difference if at all in the positions taken is a question of emphasis. Rightly, the opinion of the
Chief Justice stresses the importance of the rule of law. It is to be hoped that with a proper
understanding of what has been decided by the Court today, there would be a diminution of the
wholesale condemnation of the present system of government by some sectors of the youth and
perhaps even lead to much-needed refinement in the volume and quality of their utterances. It could
even conceivably, not only for them but for others of a less radical cast of mind, but equally suffering
from disenchantment and disillusion, induce a reassessment and reappraisal of their position, even if
from all appearances their commitment and dedication are plain for all to see. More than that, such a
response will go a long way towards a keener appreciation of the merits of a constitutional
democracy. For thereby, it demonstrates that it lives up to its ideas; it strives to act in accordance
with what it professes. Its appeal for all sectors or society becomes strengthened and vitalized. Nor
do I close my eyes to the risk that such an attitude towards those who constitute a source of danger
entails. That for me is not conclusive. With nations, as with ordinary mortals, that is unavoidable.
Repose, in the often-quoted aphorism of Holmes, is not the destiny of man.

9. One last observation. It would appear to me that if there is really a resolve to maintain inviolate
constitutional rights for all, more especially so for those inclined and disposed to differ and to be
vocal, perhaps even intemperate, in their criticism, that serious thought should be given to the
desirability of removing from the President his power to suspend the privilege of the writ of habeas
corpus as well as the power to declare martial law. Nor would the government be lacking in authority
to cope with the crisis of invasion, insurrection, or rebellion or lawless violence, as the President as
commander-in-chief can summon the aid of the armed forces to meet the danger posed to public
safety. If the privilege of the writ cannot be suspended and martial law beyond the power of the
President to declare, there is a greater likelihood as far as the rights of the individual are concerned,
of the Constitution remaining at all times supreme, as it ought to be, whether it be in peace or in war
or under other crisis conditions. As long, however, as such a presidential prerogative exists, it would
not be proper for the courts not to accord recognition to its exercise, if there be observance of the
limitations imposed by the Constitution. At the most, they can only through construction nullify what
would amount to an unconstitutional application. How desirable it would be then, to my way of
thinking, if the Constitution would strip the President of such power. That would be constitutionalism
triumphant. In terms of Lincoln's memorable dilemma, the government would be neither too strong
for the liberties of the people nor too weak to maintain its existence. This is a matter though
appropriately addressed to the Constitutional Convention.

On the purely legal aspect, however, let me reiterate that my acceptance of the Tuason dictum in the
Nava case did result in my inability to concur fully with the opinion of the Chief Justice, which, as
pointed out at the outset, is possessed of a high degree of merit.

Separate Opinions

CASTRO and BARREDO, JJ., concurring:

While concurring fully in the opinion of the Court, we nevertheless write separately to answer, from
our own perspective, a point which Mr. Justice Fernando makes in his dissent. His view, as we
understand it, is that while an individual may be detained beyond the maximum detention period
fixed by law when the privilege of the writ of habeas corpus is suspended, such individual is
nevertheless entitled to be released from the very moment a formal complaint is filed in court against
him. The theory seems to be that from the time the charge is filed, the court acquires, because the
executive officials abdicate, jurisdiction.
This view is based on the separate opinion of Mr. Justice Pedro Tuason in Nava vs.
Gatmaitan.  Justice Tuason, in part, said:
1

All persons detained for investigation by the executive department are under
executive control. It is here where the Constitution tells the court to keep their hands
off — unless the cause of the detention be for an offense other than rebellion or
insurrection, which is another matter.

By the same token, if and when a formal complaint is presented, the court steps in
and the executive steps out. The detention ceases to be an executive and becomes
a judicial concern...

But the issue to which the Supreme Court Justices in Nava individually addressed themselves is
radically disparate from that raised in these cases. There the question was whether after the
detainees had been formally charged in court and an order for their arrest had been issued, they
were entitled to bail. It was on that question that the Court was split 5 to 4, and it was the opinion of
Justice Tuason, one of the five, that after the detainees had been accused in court, the question of
release on bail was a matter that the court should decide.

Upon the other hand, the question here presented is whether the detainees should be released
forthwith upon the filing of charges against them in court and cannot thereafter be re-arrested except
only by court order. This is a totally different question. It is our submission that they are not entitled
to be released. The dissent is, we believe, based on the fallacy that when a formal charge is filed
against a person he is thereby surrendered to the court and the arresting officer is thereby divested
of custody over him. Except in a metaphorical sense, the detainee is not delivered or surrendered at
all to the judicial authorities. What the phrase "delivered to the court" simply means is that from the
time a person is indicted in court, the latter acquires jurisdiction over the subject-matter.   The
2

detainee remains in the custody of the detaining officer, under the same authority invoked for the
detention, until the court decides whether there is probable cause to order his arrest.

Under ordinary circumstances, when a person is arrested without a warrant and is charged in court,
he is not released. He is held until the judicial authority orders either his release or his confinement.
It is no argument to say that under Article III, section 1 (3) of the Constitution only a court can order
the arrest of an individual. Arrests without warrant are familiar occurrences, and they have been
upheld as constitutional.3

What is more, the privilege of the writ was suspended precisely to authorize the detention of persons
believed to be plotting against the security of the State until the courts can act on their respective
cases. To require their peremptory release upon the mere filing of charges against them, without
giving the proper court opportunity and time to decide the question of probable cause, would
obviously be to defeat the very basic purpose of the suspension. We think our role as judges in the
cases at bar is clear. After finding that the Presidential decree was validly issued, we should give it
effect. To uphold its validity and then try to dilute its efficacy in the name of personal liberty is, we
believe, actually to doubt the constitutionality of the exercise of the Presidential prerogative.

Not only that. If the rule were that the detainees must be released upon the mere filing of charges
against them in court, it is unlikely that the executive officials would have filed the charges because
of their awareness of the continuing danger which in the first place impelled the arrest of the
detainees, and the end result would be to inflict on the latter a much longer period of deprivation of
personal liberty than is warranted.
Whatever our personal views may be of the power to suspend, the fact remains that the power is
there, writ large and indubitable in the Constitution. It is far too easy to write anthologies on the side
of civil liberties or on the side of governmental order, depending on one's inclination or commitment.
But that is not our function. Constitutional issues, it has been said, do not take the form of right
versus wrong, but of right versus right. And the Court's function, as we see it, is, fundamentally to
moderate the clash of values, and not to inflate them into constitutional dimensions.

Where it is possible, we should avoid passing on a constitutional question. But where there is no
escape from the duty of abstention, our further duty is to decide the question of constitutional validity
on a less heroic plane.

And that is what we have tried to do in pointing out that the ordinary rules of criminal procedure
provide an adequate answer to Mr. Justice Fernando's problem. That solution is for the arresting
officer to hold the person detained until the court can act, with the only difference that where the
privilege of the writ of habeas corpus is available, the arresting officer must release the detainee
upon the expiration of the maximum detention time allowed by law, if he has not delivered the
detainee to the court within that period.

To insist on the procedural aspect of a constitutional problem as a manner of solving it is, after all,
no less to be libertarian. Insistence on it is, to us, and in point of fact, one of the cornerstone of
liberalism.

FERNANDO, J., concurring and dissenting:

The decision of the Court penned by the Chief Justice easily ranks with his many landmark opinions
in Constitutional Law and is in the tradition of the great judicial pronouncements from this Tribunal.
Skillful in its analysis, impressive as to its learning, comprehensive in its scope, and compelling in its
logic, it exerts considerable persuasive force. There is much in it therefore to which concurrence is
easily yielded. I find it difficult however to accept the conclusion that the six petitioners still under
detention should not be set free. It is for me a source of deep regret that having gone quite far in
manifesting the utmost sympathy for and conformity with the claims of civil liberties, it did not go
farther. Candor induces the admission though that the situation realistically viewed may not justify
going all the way. Nonetheless the deeply-rooted conviction as to the undoubted primacy of
constitutional rights, even under circumstances the least propitious, precludes me from joining my
brethren in that portion of the decision reached. Nor should I let this opportunity pass without
acknowledging the fairness, even the generosity, in the appraisal of my position in the position of the
Chief Justice.

1. The function of judicial review fitly characterized as both delicate and awesome is never more so
than when the judiciary is called upon to pass on the validity of an act of the President arising from
the exercise of a power granted admittedly to cope with an emergency or crisis situation. More
specifically, with reference to the petitions before us, the question that calls for prior consideration is
whether the suspension of the privilege of the writ of habeas corpus is tainted by constitutional
infirmity. What the President did attested to an executive determination of the existence of the
conditions that warranted such a move. For one of the mandatory provisions of the Bill of Rights  is 1

that no such suspension is allowable, except in cases of invasion, insurrection or rebellion, when the
public safety requires, and, even, then, only in such places and for such period of time as may be
necessary.  There is the further provision that the constitutional official so empowered to take such a
2

step is the President.  The exceptional character of the situation is thus underscored. The
3

presumption would seem to be that if such a step were taken, there must have been a conviction on
the part of the Executive that he could not, in the fulfillment of the responsibility entrusted to him,
avoid doing so. That decision is his to make; it is not for the judiciary. It is therefore encased in the
armor of what must have been a careful study on his part, in the light of relevant information which
as Commander-in-Chief he is furnished, ordinarily beyond the ken of the courts. When it is
considered further that the Constitution does admit that the sphere of individual freedom contracts
and the scope of governmental authority expands during times of emergency, it becomes manifest
why an even greater degree of caution and circumspection must be exercised by the judiciary when,
on this matter, it is called upon to discharge the function of judicial review.

2. Not that the judiciary has any choice on the matter. That view would indict itself for unorthodoxy if
it maintains that the existence of rebellion suffices to call for the disregard of the applicable
constitutional guarantees. Its implication would be that the Constitution ceases to be operative in
times of danger to national safety and security. Well has the American Supreme Court in the leading
case of Ex-parte Milligan  stated: "The Constitution is a law for rulers and for people equally in war
4

and in peace and covers with the shield of its protection all classes of men at all times and under all
circumstances." This ringing affirmation should at the very least give pause to those troubled by the
continuing respect that must be accorded civil liberties under crisis conditions. The fact that the
Constitution provides for only one situation where a provision of the Bill of Rights may be
suspended, emphasizes the holding in the above-cited Milligan case that the framers of the
Constitution "limited the suspension to one great right and left the rest to remain forever inviolable."
While perhaps at times likely to give rise to difficulties in the disposition of cases during a troubled
era where a suspension has been decreed, such a view is to be taken into careful consideration.

3. For it is a truism that he Constitution is paramount, and the Supreme Court has no choice but to
apply its provisions in the determination of actual cases and controversies before it. Nor is this all.
The protection of the citizen and the maintenance of his constitutional rights is one of the highest
duties and privileges of the judiciary.  The exercise thereof according to Justice Laurel requires that it
5

gives effect to the supreme law to the extent in clear cases of setting aside legislative and executive
action.  The supreme mandates of the Constitution are not to be loosely brushed aside.  Otherwise,
6 7

the Bill or Rights might be emasculated into mere expressions of sentiment.  Speaking of this Court,
8

Justice Abad Santos once pertinently observed: "This court owes its own existence to that great
instrument and derives all its powers therefrom. In the exercise of its powers and jurisdiction, this
court is bound by the provisions of the Constitution."  Justice Tuason would thus apply the
9

constitutional rights with undeviating rigidity: "To the plea that the security of the State would be
jeopardized by the release of the defendants on bail, the answer is that the existence of danger is
never a justification for courts to tamper with the fundamental rights expressly granted by the
Constitution. These rights are immutable, inflexible, yielding to no pressure of convenience,
expediency, or the so-called 'judicial statesmanship.' The Legislature itself can not infringe them, and
no court conscious of its responsibilities and limitations would do so. If the Bill of Rights are
incompatible with stable government and a menace to the Nation, let the Constitution be amended,
or abolished. It is trite to say that, while the Constitution stands, the courts of justice as the repository
of civil liberty are bound to protect and maintain undiluted individual rights." 10

It is in that context, to my mind, that the petitions before us should be appraised, for in terms of
physical, as distinguished from intellectual, liberty, the privilege of the writ of habeas
corpus occupies a place second to none. As was stressed in Gumabon v. Director of
Prisons:   "Rightly then could Chafee refer to the writ 'as the most important human rights provision'
11

in the fundamental law." Care is to be taken then lest in the inquiry that must be undertaken to
determine whether the constitutional requisites justifying a suspension are present, the effects
thereof as to the other civil liberties are not fully taken into account. It affords no justification to say
that such a move was prompted by the best motives and loftiest of intentions. Much less can there
be acceptance of the view, as contended by one of the counsel for respondents, that between the
safety of the overwhelming majority of Filipinos and the claims of the petitioners to liberty, the former
must prevail. That is to indulge in the vice of over simplification. Our fundamental postulate is that
the state exists to assure individual rights, to protect which governments are instituted deriving their
just powers from the consent of the governed. "The cardinal article of faith of our civilization,"
according to Frank further, "is the inviolable character of the individual."  12

4. With all the admitted difficulty then that the function of judicial review presents in passing upon the
executive determination of suspending the privilege of the writ, there is still no way of evading such a
responsibility, except on the pain of judicial abdication. It may not admit of doubt that on this matter
this Court, unlike the President, cannot lay claim to the experience and the requisite knowledge that
would instill confidence in its decisions. That is no warrant for an unquestioning and uncritical
acceptance of what was done. It cannot simply fold its hands and evince an attitude of unconcern. It
has to decide the case. This it does by applying the law to the facts as found, as it would in ordinary
cases. If petitioners then can make out a case of an unlawful deprivation of liberty, they are entitled
to the writ prayed for. If the suspension of the privilege be the justification, they could, as they did,
challenge its validity. To repeat, this Court, even if denied the fullness of information and the
conceded grasp of the Executive still must adjudicate the matter as best it can. It has to act not by
virtue of its competence but by the force of its commission a function authenticated by history.   That
13

would be to live up to its solemn trust, to paraphrase Cardozo, of preserving the great ideals of
liberty and equally against the erosion of possible encroachments, whether minute or
extensive.   Even if there be no showing then of constitutional infirmity, at least one other branch of
14

the government, that to which such an awesome duty had been conferred has had the opportunity of
reflecting on the matter with detachment, with objectivity, and with full awareness of the commands
of the Constitution as well as the realities of the situation.

5. Nor is the power of the judiciary to so inquire, negated as contended by respondents, by reliance
on the doctrine of political questions. 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.   It has likewise been employed loosely to characterize a suit where
15

the party proceeded against is the President or Congress, or any branch thereof.   If to be de-limited
16

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 Presidency or Congress. It is thus beyond the competence of the judiciary to pass
upon.   Unless, clearly falling within the above formulation, the decision reached by the political
17

branches whether in the form of a congressional act or an executive order could be tested in court.
Where private rights are affected, the judiciary has no choice but to look into its validity. It is not to be
lost sight of that such a power comes into play if there is an appropriate proceeding that may be filed
only after either coordinate branch has acted. Even when the Presidency or Congress possesses
plenary power, its improvidence exercise or the abuse thereof, if shown, may give rise to a
justiciable controversy.   For the constitutional grant of authority is not usually unrestricted. There
18

are limits to what may be done and how it is to be accomplished. Necessarily then, the courts in the
proper exercise of judicial review could inquire into the question of whether or not either of the two
coordinate branches has adhered to what is laid down by the Constitution. The question thus posed
is judicial rather than political. So it is in the matter before us so clearly explained in the opinion of
the Chief Justice.

6. The doctrine announced in Montenegro v. Castañeda   that such a question is political has thus
19

been laid to rest. It is about time too. It owed its existence to the compulsion exerted by Barcelon v.
Baker, a 1905 decision.   This Court was partly misled by an undue reliance in the latter case on
20

what it considered to be authoritative pronouncements from such illustrious American jurists as

Marshall, Story, and Taney. That is to misread what was said by them. This is most evidence in the
case of Chief Justice Marshall, whose epochal Marbury v. Madison   was cited. Why that was so is
21

difficult to understand. For it speaks to the contrary. It was by virtue of this decision that the function
of judicial review owes its origin notwithstanding the absence of any explicit provision in the
American Constitution empowering the courts to do so. Thus: "It is emphatically the province and
duty of the judicial department to say what the law is. Those who apply the rule to particular cases,
must of necessity expound and interpret that rule. If two laws conflict with each other, the courts
must decide on the operation of each. So if a law be in opposition to the constitution: if both the law
and the constitution apply to a particular case, so that the court must either decide that case
conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding
the law; the court must determine which of these conflicting rules governs the case. This is of the
very essence of judicial duty. If, the, the courts are to regard the constitution, and the constitution is
superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must
govern the case to which they both apply."  22

Nor is the excerpt from Justice Story, speaking for the United States Supreme Court, in Martin v.
Mott,   as made clear in the opinion of the Chief Justice, an authority directly in point. There, a
23

militiaman had been convicted of failing to respond to a call, made under the Act of 1795, to serve
during the War of 1812. His property was taken to satisfy the judgment. He brought an action of
replevin. The American Constitution empowers its Congress "to provide for calling forth the Militia" in
certain cases, and Congress did provide that in those cases the President should have authority to
make the call. All that Justice Story did in construing the statute in the light of the language and
purpose of her Constitution was to recognize the authority of the American President to decide
whether the exigency has arisen. In stating that such power was exclusive and thus had a
conclusive effect, he relied on the language employed, impressed with such a character. The
constitutional provision on the suspension of the privilege of the writ is, as shown, anything but
that.   Chief Justice Taney, in Luther v. Borden,   likewise had to deal with a situation involving the
24 25

calling out of the militia. As a matter of fact, an eminent commentator speaking of the two above
decisions had this apt observation: "The common element in these opinions would seem to be a
genuine judicial reluctance to speak in a situation where the voice of the Court, even if heard, could
not have any effect. More than this, both Story and Taney seem to share the suspicion, unusual in
them, that under a popular form of government there are certain questions that the political branches
must be trusted to answer with finality."   What was said next is even more pertinent. Thus: "It would
26

be dangerous and misleading to push the principles of these cases too far, especially the doctrine of
'political questions' as implied in Luther v. Borden. Given the opportunity to afford a grievously
injured citizen relief from a palpably unwarranted use of presidential or military power, especially
when the question at issue falls in the penumbra between the 'political' and the 'justiciable', the Court
will act as if it had never heard of this doctrine and its underlying assumption that there are some
powers against which the judiciary simply cannot be expected to act as the last line of defense."   It
27

would thus seem evidence that support for the hitherto prevailing Montenegro ruling was rather frail.
Happily, with our decision, it is no longer capable of the mischief to which it does lend itself of an
undue diminution of judicial power to the prejudice of constitutional rights.

7. With such presidential determination of the existence of the conditions required by the
Constitution to justify a suspension of the privilege of the writ no longer conclusive on the other
branches, this Court may thus legitimately inquire into its validity. The question before us, it bears
repeating, is whether or not Proclamation No. 889 as it now stands, not as it was originally issued, is
valid. The starting point must be a recognition that the power to suspend the privilege of the writ
belongs to the Executive, subject to limitations. So the Constitution provides, and it is to be
respected. The range of permissible inquiry to be conducted by this Tribunal is necessarily limited
then to the ascertainment of whether or not such a suspension, in the light of the credible information
furnished the President, was arbitrary. Such a test met with the approval of the chief counsel for
petitioners, Senator Jose W. Diokno. To paraphrase Frankfurter, the question before the judiciary is
not the correctness but the reasonableness of the action taken. One who is not the Executive but
equally knowledgeable may entertain a different view, but the decision rests with the occupant of the
office. As would be immediately apparent even from a cursory perusal of the data furnished the
President, so impressively summarized in the opinion of the Chief Justice, the imputation of
arbitrariness would be difficult to sustain. Moreover, the steps taken by him to limit the area where
the suspension operates as well as his instructions attested to a firm resolve on his part to keep
strictly within the bounds of his authority. Under the circumstances, the decision reached by the
Court that no finding of unconstitutionality is warranted commends itself for approval. The most that
can be said is that there was a manifestation of presidential power well-nigh touching the extreme
border of his conceded competence, beyond which a forbidden domain lies. The requisite showing
of either improvidence or abuse has not been made.

8. Why the dissent then. My basic premise is that the suspension of the privilege of the writ partakes
of an executive action which if valid binds all who are within its operations. The function of enacting a
legal norm general in character appertains to either Congress or the President. Its specific
application to particular individuals, like petitioners here, is however a task incumbent on the
judiciary. What is more, as had just been explained, its validity maybe tested in courts. Even if valid,
any one may seek judicial determination as to whether he is embraced within its terms. After our
declaration of the validity of the Proclamation No. 889 as amended, the next question is its
applicability to petitioners. I am the first to recognize the meticulous care with which the Chief
Justice, after reaching the conclusion that petitioners are covered by the suspension, saw to it that
their constitutional rights are duly safeguarded in whatever proceedings they would have thereafter
to face. There is thus as assurance that as far as human foresight can anticipate matters, the
possibility of abuse is minimized.

The matter, for me, could be viewed independently of whether or not petitioners, by the conduct
imputed to them, could be detained further by virtue of the suspension of the privilege of the writ. For
admittedly, a supervening fact, the Executive's determination to have them charged according to the
ordinary procedural rules, did present itself. There was thus introduced an element decisive in its
consequences. They are entitled to treatment no different from that accorded any other individual
facing possible criminal charges. The opinion of the Chief Justice is correct in pointing out that such
an approach follows the dictum of Justice Tuason, speaking for himself in Nava v.
Gatmaitan,   where a majority of five, lacking just one vote to enable this Court to reach a binding
28

decision, did arrive at the conclusion that the suspension of the privilege of the writ does not
suspend the right to bail. Thus: "By the same token, if and when formal complaint is presented, the
court steps in and the executive steps out. The detention ceases to be an executive and becomes a
judicial concern. Thereupon the corresponding court assumes its role and the judicial process takes
its course to the exclusion of the executive or the legislative departments. Hence forward, the
accused is entitled to demand all the constitutional safeguards and privileges essential to due
process."   Parenthetically, it may be observed that the above view reflects the stand taken by
29

Justice Recto, fortified by Justice Laurel, drawing heavily on continental juristic thought, both of
whom, having retired from the bench and thereafter having been elected to the Senate, were invited
to appear as amici curiae in the Nava case.

It would follow to my way of thinking then that the petitioners still detained ought not to be further
deprived of their liberty in the absence of a warrant of arrest for whatever offense they may be held
to answer, to be issued by a judge after a finding of probable cause. That is to comply with the
constitutional requirement against unreasonable search and seizure.   Moreover, to keep them in
30

confinement after the ordinary processes of the law are to be availed of, as thereafter decreed by the
Executive itself is to ignore the safeguard in the Bill of Rights that no person shall be held to answer
for a criminal offense without due process of law.   That would explain why with full recognition of the
31

sense of realism that infuses the opinion of the Court, I cannot, from the above standpoint, reach the
same conclusion they did. These six petitioners, Rodolfo del Rosario, Victor Felipe, Luzvimindo,
David, Gary Olivar, Angelo de los Reyes and Teresito Sison, have, for me, become immune from the
operation of the proclamation suspending the privilege of the writ of habeas corpus and are thus
entitled to their liberty. I am reinforced in my conviction by the well-settled principle of constitutional
construction that if there are two possible modes of interpretation, that one which raises the least
constitutional doubt should be preferred. Certainly, to my way of thinking, the choice is obvious. That
interpretation which would throw the full mantle of protection afforded by the Constitution to those
unfortunate enough to be caught in the meshes of criminal law is more in keeping with the high
estate accorded constitutional rights.

There is another consideration that strengthens my conviction on the matter. The language of the
Constitution would seem to imply at the most that the suspension of the privilege of the writ renders
it unavailable for the time being. Still there are authorities sustaining the view that preventive
detention subject to the test of good faith is allowable.  Such a doctrine is no doubt partly traceable
32

to Anglo-American legal history where as pointed out by Maine: "Substantive law has at first the look
of being gradually secreted in the interstices of procedure."   The writ of habeas corpus then is more
33

than just an efficacius device or the most speedy means of obtaining one's liberty. It has become a
most valuable substantive right. It would thus serve the cause of constitutional rights better if the
Tuason dictum as to the judicial process supplanting executive rule the moment charges are filed be
accorded acceptance. Thereby the number of individuals who would have to submit to further
detention, that may well turn out to be unjustified, would be reduced. What is more, greater fidelity is
manifested to the principle that liberty is the rule and restraint the exception.

I am not of course insensible to the observation in the opinion of the Court that this concept could be
an obstacle to the early resumption of the ordinary judicial process as the Executive might be
minded to postpone resort to it, considering that there would necessarily be an end to the detention
at that early stage of individuals who continue to pose risk to the safety of the government. It does
occur to me, however, that the presumption should be that the high executive dignitaries can be
trusted to act in accordance with the dictates of good faith and the command of the Constitution. At
least, such seems to be the case now. The opinion of the Court is quite explicit as to the measures
taken to minimize the possibility of abuse from officials in the lower category, who in their zeal or
even from less worthy motives might make a mockey of the other constitutional rights. That is as it
should be. It should continue to be so even if there be acceptance of the doctrine enunciated by
Justice Tuason. There is, for me at least, no undue cause for pessimism.

These is to my mind another reinforcement to this approach to the question before us, perhaps one
based more on policy rather than strictly legal considerations. The petitioners who have not been
released are youth leaders, who for motives best known to them, perhaps excess of idealism,
impatience with existing conditions, even overweening ambition, clamor for change, apparently
oblivious at times that it could be accomplished through means of which the law does not
disapprove. It would be premature at this stage to say whether or not their activities have incurred for
them a penal sanction, which certainly would be appropriate if their conduct is beyond the pale. Even
they should recognize that the existing order has the right to defendant itself against those who
would destroy it. Nonetheless as a constitutional democracy can justifiably pride itself on its
allegiance to ways of persuasion rather than coercion, the most meticulous observance of the free
way of life seems to me, even at this stage, not without its beneficent influence on their future course
of conduct. This is not by any means to intimate that my brethren view matters differently. Far from
it. Any difference if at all in the positions taken is a question of emphasis. Rightly, the opinion of the
Chief Justice stresses the importance of the rule of law. It is to be hoped that with a proper
understanding of what has been decided by the Court today, there would be a diminution of the
wholesale condemnation of the present system of government by some sectors of the youth and
perhaps even lead to much-needed refinement in the volume and quality of their utterances. It could
even conceivably, not only for them but for others of a less radical cast of mind, but equally suffering
from disenchantment and disillusion, induce a reassessment and reappraisal of their position, even if
from all appearances their commitment and dedication are plain for all to see. More than that, such a
response will go a long way towards a keener appreciation of the merits of a constitutional
democracy. For thereby, it demonstrates that it lives up to its ideas; it strives to act in accordance
with what it professes. Its appeal for all sectors or society becomes strengthened and vitalized. Nor
do I close my eyes to the risk that such an attitude towards those who constitute a source of danger
entails. That for me is not conclusive. With nations, as with ordinary mortals, that is unavoidable.
Repose, in the often-quoted aphorism of Holmes, is not the destiny of man.

9. One last observation. It would appear to me that if there is really a resolve to maintain inviolate
constitutional rights for all, more especially so for those inclined and disposed to differ and to be
vocal, perhaps even intemperate, in their criticism, that serious thought should be given to the
desirability of removing from the President his power to suspend the privilege of the writ of habeas
corpus as well as the power to declare martial law. Nor would the government be lacking in authority
to cope with the crisis of invasion, insurrection, or rebellion or lawless violence, as the President as
commander-in-chief can summon the aid of the armed forces to meet the danger posed to public
safety. If the privilege of the writ cannot be suspended and martial law beyond the power of the
President to declare, there is a greater likelihood as far as the rights of the individual are concerned,
of the Constitution remaining at all times supreme, as it ought to be, whether it be in peace or in war
or under other crisis conditions. As long, however, as such a presidential prerogative exists, it would
not be proper for the courts not to accord recognition to its exercise, if there be observance of the
limitations imposed by the Constitution. At the most, they can only through construction nullify what
would amount to an unconstitutional application. How desirable it would be then, to my way of
thinking, if the Constitution would strip the President of such power. That would be constitutionalism
triumphant. In terms of Lincoln's memorable dilemma, the government would be neither too strong
for the liberties of the people nor too weak to maintain its existence. This is a matter though
appropriately addressed to the Constitutional Convention.

On the purely legal aspect, however, let me reiterate that my acceptance of the Tuason dictum in the
Nava case did result in my inability to concur fully with the opinion of the Chief Justice, which, as
pointed out at the outset, is possessed of a high degree of merit.
 G.R. No. 208566               November 19, 2013

GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR. JOSE L. GONZALEZ

REUBEN M. ABANTE and QUINTIN PAREDES SAN DIEGO, Petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR. SECRETARY OF BUDGET
AND MANAGEMENT FLORENCIO B. ABAD, NATIONAL TREASURER ROSALIA V. DE LEON
SENATE OF THE PHILIPPINES represented by FRANKLIN M. DRILON m his capacity as
SENATE PRESIDENT and HOUSE OF REPRESENTATIVES represented by FELICIANO S.
BELMONTE, JR. in his capacity as SPEAKER OF THE HOUSE, Respondents.

x-----------------------x

G.R. No. 208493

SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON S. ALCANTARA, Petitioner,

vs.
HONORABLE FRANKLIN M. DRILON in his capacity as SENATE PRESIDENT and
HONORABLE FELICIANO S. BELMONTE, JR., in his capacity as SPEAKER OF THE HOUSE
OF REPRESENTATIVES, Respondents.

x-----------------------x

G.R. No. 209251

PEDRITO M. NEPOMUCENO, Former Mayor-Boac, Marinduque Former Provincial Board

Member -Province of Marinduque, Petitioner,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III* and SECRETARY FLORENCIO BUTCH ABAD,
DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.

DECISION

PERLAS-BERNABE, J.:

"Experience is the oracle of truth." 1

-James Madison

Before the Court are consolidated petitions  taken under Rule 65 of the Rules of Court, all of which
2

assail the constitutionality of the Pork Barrel System. Due to the complexity of the subject matter, the
Court shall heretofore discuss the system‘s conceptual underpinnings before detailing the particulars
of the constitutional challenge.

The Facts

I. Pork Barrel: General Concept.

"Pork Barrel" is political parlance of American -English origin.  Historically, its usage may be
3

traced to the degrading ritual of rolling out a barrel stuffed with pork to a multitude of black
slaves who would cast their famished bodies into the porcine feast to assuage their hunger
with morsels coming from the generosity of their well-fed master.  This practice was later
4

compared to the actions of American legislators in trying to direct federal budgets in favor of
their districts.  While the advent of refrigeration has made the actual pork barrel obsolete, it
5

persists in reference to political bills that "bring home the bacon" to a legislator‘s district and
constituents.  In a more technical sense, "Pork Barrel" refers to an appropriation of
6

government spending meant for localized projects and secured solely or primarily to bring
money to a representative's district.  Some scholars on the subject further use it to refer to
7

legislative control of local appropriations. 8

In the Philippines, "Pork Barrel" has been commonly referred to as lump-sum, discretionary
funds of Members of the Legislature,  although, as will be later discussed, its usage would
9

evolve in reference to certain funds of the Executive.

II. History of Congressional Pork Barrel in the Philippines.

A. Pre-Martial Law Era (1922-1972).

Act 3044,  or the Public Works Act of 1922, is considered  as the earliest form of
10 11

"Congressional Pork Barrel" in the Philippines since the utilization of the funds
appropriated therein were subjected to post-enactment legislator approval.
Particularly, in the area of fund release, Section 3  provides that the sums
12

appropriated for certain public works projects  "shall be distributed x x x subject to

13

the approval of a joint committee elected by the Senate and the House of
Representatives. "The committee from each House may also authorize one of its
members to approve the distribution made by the Secretary of Commerce and
Communications."  Also, in the area of fund realignment, the same section provides
14

that the said secretary, "with the approval of said joint committee, or of the
authorized members thereof, may, for the purposes of said distribution, transfer
unexpended portions of any item of appropriation under this Act to any other item
hereunder."

In 1950, it has been documented  that post-enactment legislator participation

15

broadened from the areas of fund release and realignment to the area of project
identification. During that year, the mechanics of the public works act was modified to
the extent that the discretion of choosing projects was transferred from the Secretary
of Commerce and Communications to legislators. "For the first time, the law carried a
list of projects selected by Members of Congress, they ‘being the representatives of
the people, either on their own account or by consultation with local officials or civil
 leaders.‘"  During this period, the pork barrel process commenced with local
16

government councils, civil groups, and individuals appealing to Congressmen or

Senators for projects. Petitions that were accommodated formed part of a legislator‘s
allocation, and the amount each legislator would eventually get is determined in a
caucus convened by the majority. The amount was then integrated into the
administration bill prepared by the Department of Public Works and Communications.
Thereafter, the Senate and the House of Representatives added their own provisions
to the bill until it was signed into law by the President – the Public Works Act.  In the
17

1960‘s, however, pork barrel legislation reportedly ceased in view of the stalemate
between the House of Representatives and the Senate. 18

B. Martial Law Era (1972-1986).

While the previous" Congressional Pork Barrel" was apparently discontinued in 1972
after Martial Law was declared, an era when "one man controlled the
legislature,"  the reprieve was only temporary. By 1982, the Batasang Pambansa
19

had already introduced a new item in the General Appropriations Act (GAA) called
the" Support for Local Development Projects" (SLDP) under the article on "National
Aid to Local Government Units". Based on reports,  it was under the SLDP that the
20

practice of giving lump-sum allocations to individual legislators began, with each

assemblyman receiving ₱500,000.00. Thereafter, assemblymen would communicate
their project preferences to the Ministry of Budget and Management for approval.
Then, the said ministry would release the allocation papers to the Ministry of Local
Governments, which would, in turn, issue the checks to the city or municipal
treasurers in the assemblyman‘s locality. It has been further reported that
"Congressional Pork Barrel" projects under the SLDP also began to cover not only
public works projects, or so- called "hard projects", but also "soft projects",  or non-
21

public works projects such as those which would fall under the categories of, among
others, education, health and livelihood. 22

C. Post-Martial Law Era:

Corazon Cojuangco Aquino Administration (1986-1992).

After the EDSA People Power Revolution in 1986 and the restoration of Philippine
democracy, "Congressional Pork Barrel" was revived in the form of the "Mindanao
Development Fund" and the "Visayas Development Fund" which were created with
lump-sum appropriations of ₱480 Million and ₱240 Million, respectively, for the
funding of development projects in the Mindanao and Visayas areas in 1989. It has
been documented  that the clamor raised by the Senators and the Luzon legislators
23

for a similar funding, prompted the creation of the "Countrywide Development Fund"
(CDF) which was integrated into the 1990 GAA  with an initial funding of ₱2.3 Billion
24

to cover "small local infrastructure and other priority community projects."

Under the GAAs for the years 1991 and 1992,  CDF funds were, with the approval of
25

the President, to be released directly to the implementing agencies but "subject to

the submission of the required list of projects and activities."Although the GAAs from
1990 to 1992 were silent as to the amounts of allocations of the individual legislators,
as well as their participation in the identification of projects, it has been reported  that
26

by 1992, Representatives were receiving ₱12.5 Million each in CDF funds, while
Senators were receiving ₱18 Million each, without any limitation or qualification, and
that they could identify any kind of project, from hard or infrastructure projects such
 as roads, bridges, and buildings to "soft projects" such as textbooks, medicines, and
scholarships. 27

D. Fidel Valdez Ramos (Ramos) Administration (1992-1998).

The following year, or in 1993,  the GAA explicitly stated that the release of CDF
28

funds was to be made upon the submission of the list of projects and activities
identified by, among others, individual legislators. For the first time, the 1993 CDF
Article included an allocation for the Vice-President.  As such, Representatives were
29

allocated ₱12.5 Million each in CDF funds, Senators, ₱18 Million each, and the Vice-
President, ₱20 Million.

In 1994,  1995,  and 1996,  the GAAs contained the same provisions on project
30 31 32

identification and fund release as found in the 1993 CDF Article. In addition,
however, the Department of Budget and Management (DBM) was directed to submit
reports to the Senate Committee on Finance and the House Committee on
Appropriations on the releases made from the funds. 33

Under the 1997  CDF Article, Members of Congress and the Vice-President, in
34

consultation with the implementing agency concerned, were directed to submit to the
DBM the list of 50% of projects to be funded from their respective CDF allocations
which shall be duly endorsed by (a) the Senate President and the Chairman of the
Committee on Finance, in the case of the Senate, and (b) the Speaker of the House
of Representatives and the Chairman of the Committee on Appropriations, in the
case of the House of Representatives; while the list for the remaining 50% was to be
submitted within six (6) months thereafter. The same article also stated that the
project list, which would be published by the DBM,  "shall be the basis for the release
35

of funds" and that "no funds appropriated herein shall be disbursed for projects not
included in the list herein required."

The following year, or in 1998,  the foregoing provisions regarding the required lists
36

and endorsements were reproduced, except that the publication of the project list
was no longer required as the list itself sufficed for the release of CDF Funds.

The CDF was not, however, the lone form of "Congressional Pork Barrel" at that
time. Other forms of "Congressional Pork Barrel" were reportedly fashioned and
inserted into the GAA (called "Congressional Insertions" or "CIs") in order to
perpetuate the ad ministration‘s political agenda.  It has been articulated that since
37

CIs "formed part and parcel of the budgets of executive departments, they were not
easily identifiable and were thus harder to monitor." Nonetheless, the lawmakers
themselves as well as the finance and budget officials of the implementing agencies,
as well as the DBM, purportedly knew about the insertions.  Examples of these CIs
38

are the Department of Education (DepEd) School Building Fund, the Congressional
Initiative Allocations, the Public Works Fund, the El Niño Fund, and the Poverty
Alleviation Fund.  The allocations for the School Building Fund, particularly, ―shall
39

be made upon prior consultation with the representative of the legislative district
concerned.”  Similarly, the legislators had the power to direct how, where and when
40

these appropriations were to be spent. 41

E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001).

 In 1999,  the CDF was removed in the GAA and replaced by three (3) separate
42

forms of CIs, namely, the "Food Security Program Fund,"  the "Lingap Para Sa 43

Mahihirap Program Fund,"  and the "Rural/Urban Development Infrastructure

44

Program Fund,"  all of which contained a special provision requiring "prior

45

consultation" with the Member s of Congress for the release of the funds.

It was in the year 2000  that the "Priority Development Assistance Fund" (PDAF)
46

appeared in the GAA. The requirement of "prior consultation with the respective
Representative of the District" before PDAF funds were directly released to the
implementing agency concerned was explicitly stated in the 2000 PDAF Article.
Moreover, realignment of funds to any expense category was expressly allowed, with
the sole condition that no amount shall be used to fund personal services and other
personnel benefits.  The succeeding PDAF provisions remained the same in view of
47

the re-enactment  of the 2000 GAA for the year 2001.
48

F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010).

The 2002  PDAF Article was brief and straightforward as it merely contained a single
49

special provision ordering the release of the funds directly to the implementing
agency or local government unit concerned, without further qualifications. The
following year, 2003,  the same single provision was present, with simply an
50

expansion of purpose and express authority to realign. Nevertheless, the provisions

in the 2003 budgets of the Department of Public Works and Highways  (DPWH) and 51

the DepEd  required prior consultation with Members of Congress on the aspects of
52

implementation delegation and project list submission, respectively. In 2004, the

2003 GAA was re-enacted. 53

In 2005,  the PDAF Article provided that the PDAF shall be used "to fund priority
54

programs and projects under the ten point agenda of the national government and
shall be released directly to the implementing agencies." It also introduced the
program menu concept,  which is essentially a list of general programs and
55

implementing agencies from which a particular PDAF project may be subsequently

chosen by the identifying authority. The 2005 GAA was re-enacted  in 2006 and 56

hence, operated on the same bases. In similar regard, the program menu concept
was consistently integrated into the 2007,  2008,  2009,  and 2010  GAAs.
57 58 59 60

Textually, the PDAF Articles from 2002 to 2010 were silent with respect to the
specific amounts allocated for the individual legislators, as well as their participation
in the proposal and identification of PDAF projects to be funded. In contrast to the
PDAF Articles, however, the provisions under the DepEd School Building Program
and the DPWH budget, similar to its predecessors, explicitly required prior
consultation with the concerned Member of Congress  anent certain aspects of
61

project implementation.

Significantly, it was during this era that provisions which allowed formal participation
of non-governmental organizations (NGO) in the implementation of government
projects were introduced. In the Supplemental Budget for 2006, with respect to the
appropriation for school buildings, NGOs were, by law, encouraged to participate.
For such purpose, the law stated that "the amount of at least ₱250 Million of the
₱500 Million allotted for the construction and completion of school buildings shall be
made available to NGOs including the Federation of Filipino-Chinese Chambers of
Commerce and Industry, Inc. for its "Operation Barrio School" program, with
 capability and proven track records in the construction of public school buildings x x
x."  The same allocation was made available to NGOs in the 2007 and 2009 GAAs
62

under the DepEd Budget.  Also, it was in 2007 that the Government Procurement
63

Policy Board  (GPPB) issued Resolution No. 12-2007 dated June 29, 2007 (GPPB
64

Resolution 12-2007), amending the implementing rules and regulations  of RA 65

9184,  the Government Procurement Reform Act, to include, as a form of negotiated

66

procurement,  the procedure whereby the Procuring Entity  (the implementing

67 68

agency) may enter into a memorandum of agreement with an NGO, provided that
"an appropriation law or ordinance earmarks an amount to be specifically contracted
out to NGOs." 69

G. Present Administration (2010-Present).

Differing from previous PDAF Articles but similar to the CDF Articles, the
2011  PDAF Article included an express statement on lump-sum amounts allocated
70

for individual legislators and the Vice-President: Representatives were given ₱70
Million each, broken down into ₱40 Million for "hard projects" and ₱30 Million for "soft
projects"; while ₱200 Million was given to each Senator as well as the Vice-
President, with a ₱100 Million allocation each for "hard" and "soft projects." Likewise,
a provision on realignment of funds was included, but with the qualification that it
may be allowed only once. The same provision also allowed the Secretaries of
Education, Health, Social Welfare and Development, Interior and Local Government,
Environment and Natural Resources, Energy, and Public Works and Highways to
realign PDAF Funds, with the further conditions that: (a) realignment is within the
same implementing unit and same project category as the original project, for
infrastructure projects; (b) allotment released has not yet been obligated for the
original scope of work, and (c) the request for realignment is with the concurrence of
the legislator concerned. 71

In the 2012  and 2013  PDAF Articles, it is stated that the "identification of projects
72 73

and/or designation of beneficiaries shall conform to the priority list, standard or

design prepared by each implementing agency (priority list requirement) x x x."
However, as practiced, it would still be the individual legislator who would choose
and identify the project from the said priority list.
74

Provisions on legislator allocations  as well as fund realignment  were included in

75 76

the 2012 and 2013 PDAF Articles; but the allocation for the Vice-President, which
was pegged at ₱200 Million in the 2011 GAA, had been deleted. In addition, the
2013 PDAF Article now allowed LGUs to be identified as implementing agencies if
they have the technical capability to implement the projects.  Legislators were also
77

allowed to identify programs/projects, except for assistance to indigent patients and

scholarships, outside of his legislative district provided that he secures the written
concurrence of the legislator of the intended outside-district, endorsed by the
Speaker of the House.  Finally, any realignment of PDAF funds, modification and
78

revision of project identification, as well as requests for release of funds, were all
required to be favorably endorsed by the House Committee on Appropriations and
the Senate Committee on Finance, as the case may be. 79

III. History of Presidential Pork Barrel in the Philippines.

While the term "Pork Barrel" has been typically associated with lump-sum, discretionary
funds of Members of Congress, the present cases and the recent controversies on the
 matter have, however, shown that the term‘s usage has expanded to include certain funds of
the President such as the Malampaya Funds and the Presidential Social Fund.

On the one hand, the Malampaya Funds was created as a special fund under Section 8  of 80

Presidential Decree No. (PD) 910,  issued by then President Ferdinand E. Marcos (Marcos)
81

on March 22, 1976. In enacting the said law, Marcos recognized the need to set up a special
fund to help intensify, strengthen, and consolidate government efforts relating to the
exploration, exploitation, and development of indigenous energy resources vital to economic
growth.  Due to the energy-related activities of the government in the Malampaya natural
82

gas field in Palawan, or the "Malampaya Deep Water Gas-to-Power Project",  the special
83

fund created under PD 910 has been currently labeled as Malampaya Funds.

On the other hand the Presidential Social Fund was created under Section 12, Title IV  of 84

PD 1869,  or the Charter of the Philippine Amusement and Gaming Corporation (PAGCOR).
85

PD 1869 was similarly issued by Marcos on July 11, 1983. More than two (2) years after, he
amended PD 1869 and accordingly issued PD 1993 on October 31, 1985,  amending86

Section 12  of the former law. As it stands, the Presidential Social Fund has been described
87

as a special funding facility managed and administered by the Presidential Management

Staff through which the President provides direct assistance to priority programs and projects
not funded under the regular budget. It is sourced from the share of the government in the
aggregate gross earnings of PAGCOR. 88

IV. Controversies in the Philippines.

Over the decades, "pork" funds in the Philippines have increased tremendously,  owing in no 89

small part to previous Presidents who reportedly used the "Pork Barrel" in order to gain
congressional support.  It was in 1996 when the first controversy surrounding the "Pork
90

Barrel" erupted. Former Marikina City Representative Romeo Candazo (Candazo), then an
anonymous source, "blew the lid on the huge sums of government money that regularly went
into the pockets of legislators in the form of kickbacks."  He said that "the kickbacks were
91

‘SOP‘ (standard operating procedure) among legislators and ranged from a low 19 percent to
a high 52 percent of the cost of each project, which could be anything from dredging, rip
rapping, sphalting, concreting, and construction of school buildings."  "Other sources of
92

kickbacks that Candazo identified were public funds intended for medicines and textbooks. A
few days later, the tale of the money trail became the banner story of the Philippine Daily
Inquirer issue of August 13, 1996, accompanied by an illustration of a roasted pig."  "The 93

publication of the stories, including those about congressional initiative allocations of certain
lawmakers, including ₱3.6 Billion for a Congressman, sparked public outrage." 94

Thereafter, or in 2004, several concerned citizens sought the nullification of the PDAF as
enacted in the 2004 GAA for being unconstitutional. Unfortunately, for lack of "any pertinent
evidentiary support that illegal misuse of PDAF in the form of kickbacks has become a
common exercise of unscrupulous Members of Congress," the petition was dismissed. 95

Recently, or in July of the present year, the National Bureau of Investigation (NBI) began its
probe into allegations that "the government has been defrauded of some ₱10 Billion over the
past 10 years by a syndicate using funds from the pork barrel of lawmakers and various
government agencies for scores of ghost projects."  The investigation was spawned by
96

sworn affidavits of six (6) whistle-blowers who declared that JLN Corporation – "JLN"
standing for Janet Lim Napoles (Napoles) – had swindled billions of pesos from the public
coffers for "ghost projects" using no fewer than 20 dummy NGOs for an entire decade. While
the NGOs were supposedly the ultimate recipients of PDAF funds, the whistle-blowers
declared that the money was diverted into Napoles‘ private accounts.  Thus, after its
97

investigation on the Napoles controversy, criminal complaints were filed before the Office of
the Ombudsman, charging five (5) lawmakers for Plunder, and three (3) other lawmakers for
Malversation, Direct Bribery, and Violation of the Anti-Graft and Corrupt Practices Act. Also
recommended to be charged in the complaints are some of the lawmakers‘ chiefs -of-staff or
representatives, the heads and other officials of three (3) implementing agencies, and the
several presidents of the NGOs set up by Napoles. 98

On August 16, 2013, the Commission on Audit (CoA) released the results of a three-year
audit investigation  covering the use of legislators' PDAF from 2007 to 2009, or during the
99

last three (3) years of the Arroyo administration. The purpose of the audit was to determine
the propriety of releases of funds under PDAF and the Various Infrastructures including
Local Projects (VILP)  by the DBM, the application of these funds and the implementation of
100

projects by the appropriate implementing agencies and several government-owned-and-

controlled corporations (GOCCs).  The total releases covered by the audit amounted to
101

₱8.374 Billion in PDAF and ₱32.664 Billion in VILP, representing 58% and 32%,
respectively, of the total PDAF and VILP releases that were found to have been made
nationwide during the audit period.  Accordingly, the Co A‘s findings contained in its Report
102

No. 2012-03 (CoA Report), entitled "Priority Development Assistance Fund (PDAF) and
Various Infrastructures including Local Projects (VILP)," were made public, the highlights of
which are as follows: 103

● Amounts released for projects identified by a considerable number of legislators

significantly exceeded their respective allocations.

● Amounts were released for projects outside of legislative districts of sponsoring

members of the Lower House.

● Total VILP releases for the period exceeded the total amount appropriated under
the 2007 to 2009 GAAs.

● Infrastructure projects were constructed on private lots without these having been
turned over to the government.

● Significant amounts were released to implementing agencies without the latter‘s

endorsement and without considering their mandated functions, administrative and
technical capabilities to implement projects.

● Implementation of most livelihood projects was not undertaken by the

implementing agencies themselves but by NGOs endorsed by the proponent
legislators to which the Funds were transferred.

● The funds were transferred to the NGOs in spite of the absence of any
appropriation law or ordinance.

● Selection of the NGOs were not compliant with law and regulations.

● Eighty-Two (82) NGOs entrusted with implementation of seven hundred seventy

two (772) projects amount to ₱6.156 Billion were either found questionable, or
submitted questionable/spurious documents, or failed to liquidate in whole or in part
their utilization of the Funds.
 ● Procurement by the NGOs, as well as some implementing agencies, of goods and
services reportedly used in the projects were not compliant with law.

As for the "Presidential Pork Barrel", whistle-blowers alleged that" at least ₱900 Million from
royalties in the operation of the Malampaya gas project off Palawan province intended for
agrarian reform beneficiaries has gone into a dummy NGO."  According to incumbent CoA
104

Chairperson Maria Gracia Pulido Tan (CoA Chairperson), the CoA is, as of this writing, in the
process of preparing "one consolidated report" on the Malampaya Funds. 105

V. The Procedural Antecedents.

Spurred in large part by the findings contained in the CoA Report and the Napoles
controversy, several petitions were lodged before the Court similarly seeking that the "Pork
Barrel System" be declared unconstitutional. To recount, the relevant procedural
antecedents in these cases are as follows:

On August 28, 2013, petitioner Samson S. Alcantara (Alcantara), President of the Social Justice
Society, filed a Petition for Prohibition of even date under Rule 65 of the Rules of Court (Alcantara
Petition), seeking that the "Pork Barrel System" be declared unconstitutional, and a writ of prohibition
be issued permanently restraining respondents Franklin M. Drilon and Feliciano S. Belmonte, Jr., in
their respective capacities as the incumbent Senate President and Speaker of the House of
Representatives, from further taking any steps to enact legislation appropriating funds for the "Pork
Barrel System," in whatever form and by whatever name it may be called, and from approving further
releases pursuant thereto.  The Alcantara Petition was docketed as G.R. No. 208493.
106

On September 3, 2013, petitioners Greco Antonious Beda B. Belgica, Jose L. Gonzalez, Reuben M.
Abante, Quintin Paredes San Diego (Belgica, et al.), and Jose M. Villegas, Jr. (Villegas) filed an
Urgent Petition For Certiorari and Prohibition With Prayer For The Immediate Issuance of Temporary
Restraining Order (TRO) and/or Writ of Preliminary Injunction dated August 27, 2013 under Rule 65
of the Rules of Court (Belgica Petition), seeking that the annual "Pork Barrel System," presently
embodied in the provisions of the GAA of 2013 which provided for the 2013 PDAF, and the
Executive‘s lump-sum, discretionary funds, such as the Malampaya Funds and the Presidential
Social Fund,  be declared unconstitutional and null and void for being acts constituting grave abuse
107

of discretion. Also, they pray that the Court issue a TRO against respondents Paquito N. Ochoa, Jr.,
Florencio B. Abad (Secretary Abad) and Rosalia V. De Leon, in their respective capacities as the
incumbent Executive Secretary, Secretary of the Department of Budget and Management (DBM),
and National Treasurer, or their agents, for them to immediately cease any expenditure under the
aforesaid funds. Further, they pray that the Court order the foregoing respondents to release to the
CoA and to the public: (a) "the complete schedule/list of legislators who have availed of their PDAF
and VILP from the years 2003 to 2013, specifying the use of the funds, the project or activity and the
recipient entities or individuals, and all pertinent data thereto"; and (b) "the use of the Executive‘s
lump-sum, discretionary funds, including the proceeds from the x x x Malampaya Funds and
remittances from the PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity and
the recipient entities or individuals, and all pertinent data thereto."  Also, they pray for the "inclusion
108

in budgetary deliberations with the Congress of all presently off-budget, lump-sum, discretionary
funds including, but not limited to, proceeds from the Malampaya Funds and remittances from the
PAGCOR."  The Belgica Petition was docketed as G.R. No. 208566.
109 110

Lastly, on September 5, 2013, petitioner Pedrito M. Nepomuceno (Nepomuceno), filed a Petition

dated August 23, 2012 (Nepomuceno Petition), seeking that the PDAF be declared unconstitutional,
and a cease and desist order be issued restraining President Benigno Simeon S. Aquino III
(President Aquino) and Secretary Abad from releasing such funds to Members of Congress and,
instead, allow their release to fund priority projects identified and approved by the Local
Development Councils in consultation with the executive departments, such as the DPWH, the
Department of Tourism, the Department of Health, the Department of Transportation, and
Communication and the National Economic Development Authority.  The Nepomuceno Petition was
111

docketed as UDK-14951. 112

On September 10, 2013, the Court issued a Resolution of even date (a) consolidating all cases; (b)
requiring public respondents to comment on the consolidated petitions; (c) issuing a TRO
(September 10, 2013 TRO) enjoining the DBM, National Treasurer, the Executive Secretary, or any
of the persons acting under their authority from releasing (1) the remaining PDAF allocated to
Members of Congress under the GAA of 2013, and (2) Malampaya Funds under the phrase "for
such other purposes as may be hereafter directed by the President" pursuant to Section 8 of PD 910
but not for the purpose of "financing energy resource development and exploitation programs and
projects of the government‖ under the same provision; and (d) setting the consolidated cases for
Oral Arguments on October 8, 2013.

On September 23, 2013, the Office of the Solicitor General (OSG) filed a Consolidated Comment
(Comment) of even date before the Court, seeking the lifting, or in the alternative, the partial lifting
with respect to educational and medical assistance purposes, of the Court‘s September 10, 2013
TRO, and that the consolidated petitions be dismissed for lack of merit. 113

On September 24, 2013, the Court issued a Resolution of even date directing petitioners to reply to
the Comment.

Petitioners, with the exception of Nepomuceno, filed their respective replies to the Comment: (a) on
September 30, 2013, Villegas filed a separate Reply dated September 27, 2013 (Villegas Reply); (b)
on October 1, 2013, Belgica, et al. filed a Reply dated September 30, 2013 (Belgica Reply); and (c)
on October 2, 2013, Alcantara filed a Reply dated October 1, 2013.

On October 1, 2013, the Court issued an Advisory providing for the guidelines to be observed by the
parties for the Oral Arguments scheduled on October 8, 2013. In view of the technicality of the
issues material to the present cases, incumbent Solicitor General Francis H. Jardeleza (Solicitor
General) was directed to bring with him during the Oral Arguments representative/s from the DBM
and Congress who would be able to competently and completely answer questions related to,
among others, the budgeting process and its implementation. Further, the CoA Chairperson was
appointed as amicus curiae and thereby requested to appear before the Court during the Oral
Arguments.

On October 8 and 10, 2013, the Oral Arguments were conducted. Thereafter, the Court directed the
parties to submit their respective memoranda within a period of seven (7) days, or until October 17,
2013, which the parties subsequently did.

The Issues Before the Court

Based on the pleadings, and as refined during the Oral Arguments, the following are the main issues
for the Court‘s resolution:

I. Procedural Issues.

Whether or not (a) the issues raised in the consolidated petitions involve an actual and justiciable
controversy; (b) the issues raised in the consolidated petitions are matters of policy not subject to
judicial review; (c) petitioners have legal standing to sue; and (d) the Court‘s Decision dated August
19, 1994 in G.R. Nos. 113105, 113174, 113766, and 113888, entitled "Philippine Constitution
Association v. Enriquez"  (Philconsa) and Decision dated April 24, 2012 in G.R. No. 164987,
114

entitled "Lawyers Against Monopoly and Poverty v. Secretary of Budget and Management"  (LAMP) 115

bar the re-litigatio n of the issue of constitutionality of the "Pork Barrel System" under the principles
of res judicata and stare decisis.

II. Substantive Issues on the "Congressional Pork Barrel."

Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel Laws similar thereto
are unconstitutional considering that they violate the principles of/constitutional provisions on (a)
separation of powers; (b) non-delegability of legislative power; (c) checks and balances; (d)
accountability; (e) political dynasties; and (f) local autonomy.

III. Substantive Issues on the "Presidential Pork Barrel."

Whether or not the phrases (a) "and for such other purposes as may be hereafter directed by the
President" under Section 8 of PD 910,  relating to the Malampaya Funds, and (b) "to finance the
116

priority infrastructure development projects and to finance the restoration of damaged or destroyed
facilities due to calamities, as may be directed and authorized by the Office of the President of the
Philippines" under Section 12 of PD 1869, as amended by PD 1993, relating to the Presidential
Social Fund, are unconstitutional insofar as they constitute undue delegations of legislative power.

These main issues shall be resolved in the order that they have been stated. In addition, the Court
shall also tackle certain ancillary issues as prompted by the present cases.

The Court’s Ruling

The petitions are partly granted.

I. Procedural Issues.

The prevailing rule in constitutional litigation is that no question involving the constitutionality or
validity of a law or governmental act may be heard and decided by the Court unless there is
compliance with the legal requisites for judicial inquiry,  namely: (a) there must be an actual case or
117

controversy calling for the exercise of judicial power; (b) the person challenging the act must have
the standing to question the validity of the subject act or issuance; (c) the question of constitutionality
must be raised at the earliest opportunity ; and (d) the issue of constitutionality must be the very lis
mota of the case.  Of these requisites, case law states that the first two are the most
118

important  and, therefore, shall be discussed forthwith.

119

A. Existence of an Actual Case or Controversy.

By constitutional fiat, judicial power operates only when there is an actual case or controversy.  This
120

is embodied in Section 1, Article VIII of the 1987 Constitution which pertinently states that "judicial
power includes the duty of the courts of justice to settle actual controversies involving rights which
are legally demandable and enforceable x x x." Jurisprudence provides that an actual case or
controversy is one which "involves a conflict of legal rights, an assertion of opposite legal claims,
susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or
dispute.  In other words, "there must be a contrariety of legal rights that can be interpreted and
121

enforced on the basis of existing law and jurisprudence."  Related to the requirement of an actual
122
case or controversy is the requirement of "ripeness," meaning that the questions raised for
constitutional scrutiny are already ripe for adjudication. "A question is ripe for adjudication when the
act being challenged has had a direct adverse effect on the individual challenging it. It is a
prerequisite that something had then been accomplished or performed by either branch before a
court may come into the picture, and the petitioner must allege the existence of an immediate or
threatened injury to itself as a result of the challenged action."  "Withal, courts will decline to pass
123

upon constitutional issues through advisory opinions, bereft as they are of authority to resolve
hypothetical or moot questions." 124

Based on these principles, the Court finds that there exists an actual and justiciable controversy in
these cases.

The requirement of contrariety of legal rights is clearly satisfied by the antagonistic positions of the
parties on the constitutionality of the "Pork Barrel System." Also, the questions in these consolidated
cases are ripe for adjudication since the challenged funds and the provisions allowing for their
utilization – such as the 2013 GAA for the PDAF, PD 910 for the Malampaya Funds and PD 1869,
as amended by PD 1993, for the Presidential Social Fund – are currently existing and operational;
hence, there exists an immediate or threatened injury to petitioners as a result of the unconstitutional
use of these public funds.

As for the PDAF, the Court must dispel the notion that the issues related thereto had been rendered
moot and academic by the reforms undertaken by respondents. A case becomes moot when there is
no more actual controversy between the parties or no useful purpose can be served in passing upon
the merits.  Differing from this description, the Court observes that respondents‘ proposed line-item
125

budgeting scheme would not terminate the controversy nor diminish the useful purpose for its
resolution since said reform is geared towards the 2014 budget, and not the 2013 PDAF Article
which, being a distinct subject matter, remains legally effective and existing. Neither will the
President‘s declaration that he had already "abolished the PDAF" render the issues on PDAF moot
precisely because the Executive branch of government has no constitutional authority to nullify or
annul its legal existence. By constitutional design, the annulment or nullification of a law may be
done either by Congress, through the passage of a repealing law, or by the Court, through a
declaration of unconstitutionality. Instructive on this point is the following exchange between
Associate Justice Antonio T. Carpio (Justice Carpio) and the Solicitor General during the Oral
Arguments: 126

Justice Carpio: The President has taken an oath to faithfully execute the law,  correct? Solicitor
127

General Jardeleza: Yes, Your Honor.

Justice Carpio: And so the President cannot refuse to implement the General Appropriations Act,
correct?

Solicitor General Jardeleza: Well, that is our answer, Your Honor. In the case, for example of the
PDAF, the President has a duty to execute the laws but in the face of the outrage over PDAF, the
President was saying, "I am not sure that I will continue the release of the soft projects," and that
started, Your Honor. Now, whether or not that … (interrupted)

Justice Carpio: Yeah. I will grant the President if there are anomalies in the project, he has the
power to stop the releases in the meantime, to investigate, and that is Section 38 of Chapter 5 of
Book 6 of the Revised Administrative Code  x x x. So at most the President can suspend, now if the
128

President believes that the PDAF is unconstitutional, can he just refuse to implement it?
Solicitor General Jardeleza: No, Your Honor, as we were trying to say in the specific case of the
PDAF because of the CoA Report, because of the reported irregularities and this Court can take
judicial notice, even outside, outside of the COA Report, you have the report of the whistle-blowers,
the President was just exercising precisely the duty ….

xxxx

Justice Carpio: Yes, and that is correct. You‘ve seen the CoA Report, there are anomalies, you stop
and investigate, and prosecute, he has done that. But, does that mean that PDAF has been
repealed?

Solicitor General Jardeleza: No, Your Honor x x x.

xxxx

Justice Carpio: So that PDAF can be legally abolished only in two (2) cases. Congress passes a law
to repeal it, or this Court declares it unconstitutional, correct?

Solictor General Jardeleza: Yes, Your Honor.

Justice Carpio: The President has no power to legally abolish PDAF. (Emphases supplied)

Even on the assumption of mootness, jurisprudence, nevertheless, dictates that "the moot and
academic‘ principle is not a magical formula that can automatically dissuade the Court in resolving a
case." The Court will decide cases, otherwise moot, if: first, there is a grave violation of the
Constitution; second, the exceptional character of the situation and the paramount public interest is
involved; third, when the constitutional issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading
review.129

The applicability of the first exception is clear from the fundamental posture of petitioners – they
essentially allege grave violations of the Constitution with respect to, inter alia, the principles of
separation of powers, non-delegability of legislative power, checks and balances, accountability and
local autonomy.

The applicability of the second exception is also apparent from the nature of the interests involved

– the constitutionality of the very system within which significant amounts of public funds have been
and continue to be utilized and expended undoubtedly presents a situation of exceptional character
as well as a matter of paramount public interest. The present petitions, in fact, have been lodged at a
time when the system‘s flaws have never before been magnified. To the Court‘s mind, the
coalescence of the CoA Report, the accounts of numerous whistle-blowers, and the government‘s
own recognition that reforms are needed "to address the reported abuses of the
PDAF"  demonstrates a prima facie pattern of abuse which only underscores the importance of the
130

matter. It is also by this finding that the Court finds petitioners‘ claims as not merely theorized,
speculative or hypothetical. Of note is the weight accorded by the Court to the findings made by the
CoA which is the constitutionally-mandated audit arm of the government. In Delos Santos v. CoA,  a 131

recent case wherein the Court upheld the CoA‘s disallowance of irregularly disbursed PDAF funds, it
was emphasized that:
The COA is endowed with enough latitude to determine, prevent, and disallow irregular,
unnecessary, excessive, extravagant or unconscionable expenditures of government funds. It is
tasked to be vigilant and conscientious in safeguarding the proper use of the government's, and
ultimately the people's, property. The exercise of its general audit power is among the constitutional
mechanisms that gives life to the check and balance system inherent in our form of government.

It is the general policy of the Court to sustain the decisions of administrative authorities, especially
one which is constitutionally-created, such as the CoA, not only on the basis of the doctrine of
separation of powers but also for their presumed expertise in the laws they are entrusted to enforce.
Findings of administrative agencies are accorded not only respect but also finality when the decision
and order are not tainted with unfairness or arbitrariness that would amount to grave abuse of
discretion. It is only when the CoA has acted without or in excess of jurisdiction, or with grave abuse
of discretion amounting to lack or excess of jurisdiction, that this Court entertains a petition
questioning its rulings. x x x. (Emphases supplied)

Thus, if only for the purpose of validating the existence of an actual and justiciable controversy in
these cases, the Court deems the findings under the CoA Report to be sufficient.

The Court also finds the third exception to be applicable largely due to the practical need for a
definitive ruling on the system‘s constitutionality. As disclosed during the Oral Arguments, the CoA
Chairperson estimates that thousands of notices of disallowances will be issued by her office in
connection with the findings made in the CoA Report. In this relation, Associate Justice Marvic Mario
Victor F. Leonen (Justice Leonen) pointed out that all of these would eventually find their way to the
courts.  Accordingly, there is a compelling need to formulate controlling principles relative to the
132

issues raised herein in order to guide the bench, the bar, and the public, not just for the expeditious
resolution of the anticipated disallowance cases, but more importantly, so that the government may
be guided on how public funds should be utilized in accordance with constitutional principles.

Finally, the application of the fourth exception is called for by the recognition that the preparation and
passage of the national budget is, by constitutional imprimatur, an affair of annual occurrence.  The
133

relevance of the issues before the Court does not cease with the passage of a "PDAF -free budget
for 2014."  The evolution of the "Pork Barrel System," by its multifarious iterations throughout the
134

course of history, lends a semblance of truth to petitioners‘ claim that "the same dog will just
resurface wearing a different collar."  In Sanlakas v. Executive Secretary,  the government had
135 136

already backtracked on a previous course of action yet the Court used the "capable of repetition but
evading review" exception in order "to prevent similar questions from re- emerging."  The situation
137

similarly holds true to these cases. Indeed, the myriad of issues underlying the manner in which
certain public funds are spent, if not resolved at this most opportune time, are capable of repetition
and hence, must not evade judicial review.

B. Matters of Policy: the Political Question Doctrine.

The "limitation on the power of judicial review to actual cases and controversies‖ carries the
assurance that "the courts will not intrude into areas committed to the other branches of
government."  Essentially, the foregoing limitation is a restatement of the political question doctrine
138

which, under the classic formulation of Baker v. Carr,  applies when there is found, among others,
139

"a textually demonstrable constitutional commitment of the issue to a coordinate political

department," "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." Cast against this light, respondents submit that the "the political branches are in the best
position not only to perform budget-related reforms but also to do them in response to the specific
demands of their constituents" and, as such, "urge the Court not to impose a solution at this stage." 140
The Court must deny respondents‘ submission.

Suffice it to state that the issues raised before the Court do not present political but legal questions
which are within its province to resolve. A political question 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."  The intrinsic constitutionality of the "Pork Barrel System" is not an issue dependent upon
141

the wisdom of the political branches of government but rather a legal one which the Constitution
itself has commanded the Court to act upon. Scrutinizing the contours of the system along
constitutional lines is a task that the political branches of government are incapable of rendering
precisely because it is an exercise of judicial power. More importantly, the present Constitution has
not only vested the Judiciary the right to exercise judicial power but essentially makes it a duty to
proceed therewith. Section 1, Article VIII of the 1987 Constitution cannot be any clearer: "The judicial
power shall be vested in one Supreme Court and in such lower courts as may be established by law.
It includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of the Government." In Estrada v. Desierto,  the expanded concept of judicial power under the 1987
142

Constitution and its effect on the political question doctrine was explained as follows:143

To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine
when it expanded the power of judicial review of this court 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 government. Heretofore, the judiciary has focused on the "thou shalt
not's" of the Constitution directed against the exercise of its jurisdiction. With the new provision,
however, courts are given a greater prerogative to determine what it can do to prevent grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of government. Clearly, the new provision did not just grant the Court power of doing nothing. x x x
(Emphases supplied)

It must also be borne in mind that ― when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other departments; does not in reality nullify
or invalidate an act of the legislature or the executive, but only asserts the solemn and sacred
obligation assigned to it by the Constitution."  To a great extent, the Court is laudably cognizant of
144

the reforms undertaken by its co-equal branches of government. But it is by constitutional force that
the Court must faithfully perform its duty. Ultimately, it is the Court‘s avowed intention that a
resolution of these cases would not arrest or in any manner impede the endeavors of the two other
branches but, in fact, help ensure that the pillars of change are erected on firm constitutional
grounds. After all, it is in the best interest of the people that each great branch of government, within
its own sphere, contributes its share towards achieving a holistic and genuine solution to the
problems of society. For all these reasons, the Court cannot heed respondents‘ plea for judicial
restraint.

C. Locus Standi.

"The gist of the question of standing is whether a party alleges such personal stake in the outcome
of the controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court depends for illumination of difficult constitutional questions. Unless a
person is injuriously affected in any of his constitutional rights by the operation of statute or
ordinance, he has no standing." 145
Petitioners have come before the Court in their respective capacities as citizen-taxpayers and
accordingly, assert that they "dutifully contribute to the coffers of the National Treasury."  Clearly, as
146

taxpayers, they possess the requisite standing to question the validity of the existing "Pork Barrel
System" under which the taxes they pay have been and continue to be utilized. It is undeniable that
petitioners, as taxpayers, are bound to suffer from the unconstitutional usage of public funds, if the
Court so rules. Invariably, taxpayers have been allowed to sue where there is a claim that public
funds are illegally disbursed or that public money is being deflected to any improper purpose, or that
public funds are wasted through the enforcement of an invalid or unconstitutional law,  as in these
147

cases.

Moreover, as citizens, petitioners have equally fulfilled the standing requirement given that the
issues they have raised may be classified as matters "of transcendental importance, of overreaching
significance to society, or of paramount public interest."  The CoA Chairperson‘s statement during
148

the Oral Arguments that the present controversy involves "not merely a systems failure" but a
"complete breakdown of controls"  amplifies, in addition to the matters above-discussed, the
149

seriousness of the issues involved herein. Indeed, of greater import than the damage caused by the
illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the
enforcement of an invalid statute.  All told, petitioners have sufficient locus standi to file the instant
150

cases.

D. Res Judicata and Stare Decisis.

Res judicata (which means a "matter adjudged") and stare decisis non quieta et movere (or simply,
stare decisis which means "follow past precedents and do not disturb what has been settled") are
general procedural law principles which both deal with the effects of previous but factually similar
dispositions to subsequent cases. For the cases at bar, the Court examines the applicability of these
principles in relation to its prior rulings in Philconsa and LAMP.

The focal point of res judicata is the judgment. The principle states that a judgment on the merits in a
previous case rendered by a court of competent jurisdiction would bind a subsequent case if,
between the first and second actions, there exists an identity of parties, of subject matter, and of
causes of action.  This required identity is not, however, attendant hereto since Philconsa and
151

LAMP, respectively involved constitutional challenges against the 1994 CDF Article and 2004 PDAF
Article, whereas the cases at bar call for a broader constitutional scrutiny of the entire "Pork Barrel
System." Also, the ruling in LAMP is essentially a dismissal based on a procedural technicality –
and, thus, hardly a judgment on the merits – in that petitioners therein failed to present any
"convincing proof x x x showing that, indeed, there were direct releases of funds to the Members of
Congress, who actually spend them according to their sole discretion" or "pertinent evidentiary
support to demonstrate the illegal misuse of PDAF in the form of kickbacks and has become a
common exercise of unscrupulous Members of Congress." As such, the Court up held, in view of the
presumption of constitutionality accorded to every law, the 2004 PDAF Article, and saw "no need to
review or reverse the standing pronouncements in the said case." Hence, for the foregoing reasons,
the res judicata principle, insofar as the Philconsa and LAMP cases are concerned, cannot apply.

On the other hand, the focal point of stare decisis is the doctrine created. The principle, entrenched
under Article 8  of the Civil Code, evokes the general rule that, for the sake of certainty, a
152

conclusion reached in one case should be doctrinally applied to those that follow if the facts are
substantially the same, even though the parties may be different. It proceeds from the first principle
of justice that, absent any powerful countervailing considerations, like cases ought to be decided
alike. Thus, where the same questions relating to the same event have been put forward by the
parties similarly situated as in a previous case litigated and decided by a competent court, the rule of
stare decisis is a bar to any attempt to re-litigate the same issue.153
Philconsa was the first case where a constitutional challenge against a Pork Barrel provision, i.e.,
the 1994 CDF Article, was resolved by the Court. To properly understand its context, petitioners‘
posturing was that "the power given to the Members of Congress to propose and identify projects
and activities to be funded by the CDF is an encroachment by the legislature on executive power,
since said power in an appropriation act is in implementation of the law" and that "the proposal and
identification of the projects do not involve the making of laws or the repeal and amendment thereof,
the only function given to the Congress by the Constitution."  In deference to the foregoing
154

submissions, the Court reached the following main conclusions: one, under the Constitution, the
power of appropriation, or the "power of the purse," belongs to Congress; two, the power of
appropriation carries with it the power to specify the project or activity to be funded under the
appropriation law and it can be detailed and as broad as Congress wants it to be; and, three, the
proposals and identifications made by Members of Congress are merely recommendatory. At once,
it is apparent that the Philconsa resolution was a limited response to a separation of powers
problem, specifically on the propriety of conferring post-enactment identification authority to
Members of Congress. On the contrary, the present cases call for a more holistic examination of (a)
the inter-relation between the CDF and PDAF Articles with each other, formative as they are of the
entire "Pork Barrel System" as well as (b) the intra-relation of post-enactment measures contained
within a particular CDF or PDAF Article, including not only those related to the area of project
identification but also to the areas of fund release and realignment. The complexity of the issues and
the broader legal analyses herein warranted may be, therefore, considered as a powerful
countervailing reason against a wholesale application of the stare decisis principle.

In addition, the Court observes that the Philconsa ruling was actually riddled with inherent
constitutional inconsistencies which similarly countervail against a full resort to stare decisis. As may
be deduced from the main conclusions of the case, Philconsa‘s fundamental premise in allowing
Members of Congress to propose and identify of projects would be that the said identification
authority is but an aspect of the power of appropriation which has been constitutionally lodged in
Congress. From this premise, the contradictions may be easily seen. If the authority to identify
projects is an aspect of appropriation and the power of appropriation is a form of legislative power
thereby lodged in Congress, then it follows that: (a) it is Congress which should exercise such
authority, and not its individual Members; (b) such authority must be exercised within the prescribed
procedure of law passage and, hence, should not be exercised after the GAA has already been
passed; and (c) such authority, as embodied in the GAA, has the force of law and, hence, cannot be
merely recommendatory. Justice Vitug‘s Concurring Opinion in the same case sums up the
Philconsa quandary in this wise: "Neither would it be objectionable for Congress, by law, to
appropriate funds for such specific projects as it may be minded; to give that authority, however, to
the individual members of Congress in whatever guise, I am afraid, would be constitutionally
impermissible." As the Court now largely benefits from hindsight and current findings on the matter,
among others, the CoA Report, the Court must partially abandon its previous ruling in Philconsa
insofar as it validated the post-enactment identification authority of Members of Congress on the
guise that the same was merely recommendatory. This postulate raises serious constitutional
inconsistencies which cannot be simply excused on the ground that such mechanism is "imaginative
as it is innovative." Moreover, it must be pointed out that the recent case of Abakada Guro Party List
v. Purisima  (Abakada) has effectively overturned Philconsa‘s allowance of post-enactment
155

legislator participation in view of the separation of powers principle. These constitutional

inconsistencies and the Abakada rule will be discussed in greater detail in the ensuing section of this
Decision.

As for LAMP, suffice it to restate that the said case was dismissed on a procedural technicality and,
hence, has not set any controlling doctrine susceptible of current application to the substantive
issues in these cases. In fine, stare decisis would not apply.

II. Substantive Issues.

A. Definition of Terms.

Before the Court proceeds to resolve the substantive issues of these cases, it must first define the
terms "Pork Barrel System," "Congressional Pork Barrel," and "Presidential Pork Barrel" as they are
essential to the ensuing discourse.

Petitioners define the term "Pork Barrel System" as the "collusion between the Legislative and
Executive branches of government to accumulate lump-sum public funds in their offices with
unchecked discretionary powers to determine its distribution as political largesse."  They assert that
156

the following elements make up the Pork Barrel System: (a) lump-sum funds are allocated through
the appropriations process to an individual officer; (b) the officer is given sole and broad discretion in
determining how the funds will be used or expended; (c) the guidelines on how to spend or use the
funds in the appropriation are either vague, overbroad or inexistent; and (d) projects funded are
intended to benefit a definite constituency in a particular part of the country and to help the political
careers of the disbursing official by yielding rich patronage benefits.  They further state that the Pork
157

Barrel System is comprised of two (2) kinds of discretionary public funds: first, the Congressional (or
Legislative) Pork Barrel, currently known as the PDAF;  and, second, the Presidential (or Executive)
158

Pork Barrel, specifically, the Malampaya Funds under PD 910 and the Presidential Social Fund
under PD 1869, as amended by PD 1993. 159

Considering petitioners‘ submission and in reference to its local concept and legal history, the Court
defines the Pork Barrel System as the collective body of rules and practices that govern the manner
by which lump-sum, discretionary funds, primarily intended for local projects, are utilized through the
respective participations of the Legislative and Executive branches of government, including its
members. The Pork Barrel System involves two (2) kinds of lump-sum discretionary funds:

First, there is the Congressional Pork Barrel which is herein defined as a kind of lump-sum,
discretionary fund wherein legislators, either individually or collectively organized into committees,
are able to effectively control certain aspects of the fund’s utilization through various post-enactment
measures and/or practices. In particular, petitioners consider the PDAF, as it appears under the
2013 GAA, as Congressional Pork Barrel since it is, inter alia, a post-enactment measure that allows
individual legislators to wield a collective power;  and
160

Second, there is the Presidential Pork Barrel which is herein defined as a kind of lump-sum,
discretionary fund which allows the President to determine the manner of its utilization. For reasons
earlier stated,  the Court shall delimit the use of such term to refer only to the Malampaya Funds
161

and the Presidential Social Fund.

With these definitions in mind, the Court shall now proceed to discuss the substantive issues of
these cases.

B. Substantive Issues on the Congressional Pork Barrel.

1. Separation of Powers.

a. Statement of Principle.

The principle of separation of powers refers to the constitutional demarcation of the three
fundamental powers of government. In the celebrated words of Justice Laurel in Angara v. Electoral
Commission,  it means that the "Constitution has blocked out with deft strokes and in bold lines,
162

allotment of power to the executive, the legislative and the judicial departments of the
government."  To the legislative branch of government, through Congress,  belongs the power to
163 164

make laws; to the executive branch of government, through the President,  belongs the power to
165

enforce laws; and to the judicial branch of government, through the Court,  belongs the power to
166

interpret laws. Because the three great powers have been, by constitutional design, ordained in this
respect, "each department of the government has exclusive cognizance of matters within its
jurisdiction, and is supreme within its own sphere."  Thus, "the legislature has no authority to
167

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."  The principle of separation of powers and its
168

concepts of autonomy and independence stem from the notion that the powers of government must
be divided to avoid concentration of these powers in any one branch; the division, it is hoped, would
avoid any single branch from lording its power over the other branches or the citizenry.  To achieve
169

this purpose, the divided power must be wielded by co-equal branches of government that are
equally capable of independent action in exercising their respective mandates. Lack of
independence would result in the inability of one branch of government to check the arbitrary or self-
interest assertions of another or others. 170

Broadly speaking, there is a violation of the separation of powers principle when one branch of
government unduly encroaches on the domain of another. US Supreme Court decisions instruct that
the principle of separation of powers may be violated in two (2) ways: firstly, "one branch may
interfere impermissibly with the other’s performance of its constitutionally assigned function";  and
171

"alternatively, the doctrine may be violated when one branch assumes a function that more properly
is entrusted to another."  In other words, there is a violation of the principle when there is
172

impermissible (a) interference with and/or (b) assumption of another department‘s functions.

The enforcement of the national budget, as primarily contained in the GAA, is indisputably a function
both constitutionally assigned and properly entrusted to the Executive branch of government. In
Guingona, Jr. v. Hon. Carague  (Guingona, Jr.), the Court explained that the phase of budget
173

execution "covers the various operational aspects of budgeting" and accordingly includes "the
evaluation of work and financial plans for individual activities," the "regulation and release of funds"
as well as all "other related activities" that comprise the budget execution cycle.  This is rooted in
174

the principle that the allocation of power in the three principal branches of government is a grant of
all powers inherent in them.  Thus, unless the Constitution provides otherwise, the Executive
175

department should exclusively exercise all roles and prerogatives which go into the implementation
of the national budget as provided under the GAA as well as any other appropriation law.

In view of the foregoing, the Legislative branch of government, much more any of its members,
should not cross over the field of implementing the national budget since, as earlier stated, the same
is properly the domain of the Executive. Again, in Guingona, Jr., the Court stated that "Congress
enters the picture when it deliberates or acts on the budget proposals of the President. Thereafter,
Congress, "in the exercise of its own judgment and wisdom, formulates an appropriation act
precisely following the process established by the Constitution, which specifies that no money may
be paid from the Treasury except in accordance with an appropriation made by law." Upon approval
and passage of the GAA, Congress‘ law -making role necessarily comes to an end and from there
the Executive‘s role of implementing the national budget begins. So as not to blur the constitutional
boundaries between them, Congress must "not concern it self with details for implementation by the
Executive."176

The foregoing cardinal postulates were definitively enunciated in Abakada where the Court held that
"from the moment the law becomes effective, any provision of law that empowers Congress or any
of its members to play any role in the implementation or enforcement of the law violates the principle
of separation of powers and is thus unconstitutional."  It must be clarified, however, that since the
177

restriction only pertains to "any role in the implementation or enforcement of the law," Congress may
still exercise its oversight function which is a mechanism of checks and balances that the
Constitution itself allows. But it must be made clear that Congress‘ role must be confined to mere
oversight. Any post-enactment-measure allowing legislator participation beyond oversight is bereft of
any constitutional basis and hence, tantamount to impermissible interference and/or assumption of
executive functions. As the Court ruled in Abakada: 178

Any post-enactment congressional measure x x x should be limited to scrutiny and investigation.  In 1âwphi1

particular, congressional oversight must be confined to the following:

(1) scrutiny based primarily on Congress‘ power of appropriation and the budget hearings
conducted in connection with it, its power to ask heads of departments to appear before and
be heard by either of its Houses on any matter pertaining to their departments and its power
of confirmation; and

(2) investigation and monitoring of the implementation of laws pursuant to the power of
Congress to conduct inquiries in aid of legislation.

Any action or step beyond that will undermine the separation of powers guaranteed by the
Constitution. (Emphases supplied)

b. Application.

In these cases, petitioners submit that the Congressional Pork Barrel – among others, the 2013
PDAF Article – "wrecks the assignment of responsibilities between the political branches" as it is
designed to allow individual legislators to interfere "way past the time it should have ceased" or,
particularly, "after the GAA is passed."  They state that the findings and recommendations in the
179

CoA Report provide "an illustration of how absolute and definitive the power of legislators wield over
project implementation in complete violation of the constitutional principle of separation of
powers."  Further, they point out that the Court in the Philconsa case only allowed the CDF to exist
180

on the condition that individual legislators limited their role to recommending projects and not if they
actually dictate their implementation.181

For their part, respondents counter that the separations of powers principle has not been violated
since the President maintains "ultimate authority to control the execution of the GAA‖ and that he
"retains the final discretion to reject" the legislators‘ proposals.  They maintain that the Court, in
182

Philconsa, "upheld the constitutionality of the power of members of Congress to propose and identify
projects so long as such proposal and identification are recommendatory."  As such, they claim that
183

"everything in the Special Provisions [of the 2013 PDAF Article follows the Philconsa framework, and
hence, remains constitutional." 184

The Court rules in favor of petitioners.

As may be observed from its legal history, the defining feature of all forms of Congressional Pork
Barrel would be the authority of legislators to participate in the post-enactment phases of project
implementation.

At its core, legislators – may it be through project lists,  prior consultations  or program menus  –
185 186 187

have been consistently accorded post-enactment authority to identify the projects they desire to be
funded through various Congressional Pork Barrel allocations. Under the 2013 PDAF Article, the
statutory authority of legislators to identify projects post-GAA may be construed from the import of
Special Provisions 1 to 3 as well as the second paragraph of Special Provision 4. To elucidate,
Special Provision 1 embodies the program menu feature which, as evinced from past PDAF Articles,
allows individual legislators to identify PDAF projects for as long as the identified project falls under a
general program listed in the said menu. Relatedly, Special Provision 2 provides that the
implementing agencies shall, within 90 days from the GAA is passed, submit to Congress a more
detailed priority list, standard or design prepared and submitted by implementing agencies from
which the legislator may make his choice. The same provision further authorizes legislators to
identify PDAF projects outside his district for as long as the representative of the district concerned
concurs in writing. Meanwhile, Special Provision 3 clarifies that PDAF projects refer to "projects to be
identified by legislators"  and thereunder provides the allocation limit for the total amount of projects
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identified by each legislator. Finally, paragraph 2 of Special Provision 4 requires that any
modification and revision of the project identification "shall be submitted to the House Committee on
Appropriations and the Senate Committee on Finance for favorable endorsement to the DBM or the
implementing agency, as the case may be." From the foregoing special provisions, it cannot be
seriously doubted that legislators have been accorded post-enactment authority to identify PDAF
projects.

Aside from the area of project identification, legislators have also been accorded post-enactment
authority in the areas of fund release and realignment. Under the 2013 PDAF Article, the statutory
authority of legislators to participate in the area of fund release through congressional committees is
contained in Special Provision 5 which explicitly states that "all request for release of funds shall be
supported by the documents prescribed under Special Provision No. 1 and favorably endorsed by
House Committee on Appropriations and the Senate Committee on Finance, as the case may be";
while their statutory authority to participate in the area of fund realignment is contained in: first ,
paragraph 2, Special Provision 4  which explicitly state s, among others, that "any realignment of
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funds shall be submitted to the House Committee on Appropriations and the Senate Committee on
Finance for favorable endorsement to the DBM or the implementing agency, as the case may be‖ ;
and, second , paragraph 1, also of Special Provision 4 which authorizes the "Secretaries of
Agriculture, Education, Energy, Interior and Local Government, Labor and Employment, Public
Works and Highways, Social Welfare and Development and Trade and Industry  x x x to approve
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realignment from one project/scope to another within the allotment received from this Fund, subject
to among others (iii) the request is with the concurrence of the legislator concerned."

Clearly, these post-enactment measures which govern the areas of project identification, fund
release and fund realignment are not related to functions of congressional oversight and, hence,
allow legislators to intervene and/or assume duties that properly belong to the sphere of budget
execution. Indeed, by virtue of the foregoing, legislators have been, in one form or another,
authorized to participate in – as Guingona, Jr. puts it – "the various operational aspects of
budgeting," including "the evaluation of work and financial plans for individual activities" and the
"regulation and release of funds" in violation of the separation of powers principle. The fundamental
rule, as categorically articulated in Abakada, cannot be overstated – from the moment the law
becomes effective, any provision of law that empowers Congress or any of its members to play any
role in the implementation or enforcement of the law violates the principle of separation of powers
and is thus unconstitutional.  That the said authority is treated as merely recommendatory in nature
191

does not alter its unconstitutional tenor since the prohibition, to repeat, covers any role in the
implementation or enforcement of the law. Towards this end, the Court must therefore abandon its
ruling in Philconsa which sanctioned the conduct of legislator identification on the guise that the
same is merely recommendatory and, as such, respondents‘ reliance on the same falters altogether.

Besides, it must be pointed out that respondents have nonetheless failed to substantiate their
position that the identification authority of legislators is only of recommendatory import. Quite the
contrary, respondents – through the statements of the Solicitor General during the Oral Arguments –
have admitted that the identification of the legislator constitutes a mandatory requirement before his
PDAF can be tapped as a funding source, thereby highlighting the indispensability of the said act to
the entire budget execution process: 192

Justice Bernabe: Now, without the individual legislator’s identification of the project, can the PDAF of
the legislator be utilized?

Solicitor General Jardeleza: No, Your Honor.

Justice Bernabe: It cannot?

Solicitor General Jardeleza: It cannot… (interrupted)

Justice Bernabe: So meaning you should have the identification of the project by the individual
legislator?

Solicitor General Jardeleza: Yes, Your Honor.

xxxx

Justice Bernabe: In short, the act of identification is mandatory?

Solictor General Jardeleza: Yes, Your Honor. In the sense that if it is not done and then there is no
identification.

xxxx

Justice Bernabe: Now, would you know of specific instances when a project was implemented
without the identification by the individual legislator?

Solicitor General Jardeleza: I do not know, Your Honor; I do not think so but I have no specific
examples. I would doubt very much, Your Honor, because to implement, there is a need for a SARO
and the NCA. And the SARO and the NCA are triggered by an identification from the legislator.

xxxx

Solictor General Jardeleza: What we mean by mandatory, Your Honor, is we were replying to a
question, "How can a legislator make sure that he is able to get PDAF Funds?" It is mandatory in the
sense that he must identify, in that sense, Your Honor. Otherwise, if he does not identify, he cannot
avail of the PDAF Funds and his district would not be able to have PDAF Funds, only in that sense,
Your Honor. (Emphases supplied)

Thus, for all the foregoing reasons, the Court hereby declares the 2013 PDAF Article as well as all
other provisions of law which similarly allow legislators to wield any form of post-enactment authority
in the implementation or enforcement of the budget, unrelated to congressional oversight, as
violative of the separation of powers principle and thus unconstitutional. Corollary thereto, informal
practices, through which legislators have effectively intruded into the proper phases of budget
execution, must be deemed as acts of grave abuse of discretion amounting to lack or excess of
jurisdiction and, hence, accorded the same unconstitutional treatment. That such informal practices
do exist and have, in fact, been constantly observed throughout the years has not been substantially
disputed here. As pointed out by Chief Justice Maria Lourdes P.A. Sereno (Chief Justice Sereno)
during the Oral Arguments of these cases: 193

Chief Justice Sereno:

Now, from the responses of the representative of both, the DBM and two (2) Houses of Congress, if
we enforces the initial thought that I have, after I had seen the extent of this research made by my
staff, that neither the Executive nor Congress frontally faced the question of constitutional
compatibility of how they were engineering the budget process. In fact, the words you have been
using, as the three lawyers of the DBM, and both Houses of Congress has also been using is
surprise; surprised that all of these things are now surfacing. In fact, I thought that what the 2013
PDAF provisions did was to codify in one section all the past practice that had been done since
1991. In a certain sense, we should be thankful that they are all now in the PDAF Special Provisions.
x x x (Emphasis and underscoring supplied)

Ultimately, legislators cannot exercise powers which they do not have, whether through formal
measures written into the law or informal practices institutionalized in government agencies, else the
Executive department be deprived of what the Constitution has vested as its own.

2. Non-delegability of Legislative Power.

a. Statement of Principle.

As an adjunct to the separation of powers principle,  legislative power shall be exclusively exercised
194

by the body to which the Constitution has conferred the same. In particular, Section 1, Article VI of
the 1987 Constitution states that such power shall be vested in the Congress of the Philippines
which shall consist of a Senate and a House of Representatives, except to the extent reserved to the
people by the provision on initiative and referendum.  Based on this provision, it is clear that only
195

Congress, acting as a bicameral body, and the people, through the process of initiative and
referendum, may constitutionally wield legislative power and no other. This premise embodies the
principle of non-delegability of legislative power, and the only recognized exceptions thereto would
be: (a) delegated legislative power to local governments which, by immemorial practice, are allowed
to legislate on purely local matters;  and (b) constitutionally-grafted exceptions such as the authority
196

of the President to, by law, exercise powers necessary and proper to carry out a declared national
policy in times of war or other national emergency,  or fix within specified limits, and subject to such
197

limitations and restrictions as Congress 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. 198

Notably, the principle of non-delegability should not be confused as a restriction to delegate rule-
making authority to implementing agencies for the limited purpose of either filling up the details of
the law for its enforcement (supplementary rule-making) or ascertaining facts to bring the law into
actual operation (contingent rule-making).  The conceptual treatment and limitations of delegated
199

rule-making were explained in the case of People v. Maceren  as follows:

200

The grant of the rule-making power to administrative agencies is a relaxation of the principle of
separation of powers and is an exception to the nondelegation of legislative powers. Administrative
regulations or "subordinate legislation" calculated to promote the public interest are necessary
because of "the growing complexity of modern life, the multiplication of the subjects of governmental
regulations, and the increased difficulty of administering the law."

xxxx
Nevertheless, it must be emphasized that the rule-making power must be confined to details for
regulating the mode or proceeding to carry into effect the law as it has been enacted. The power
cannot be extended to amending or expanding the statutory requirements or to embrace matters not
covered by the statute. Rules that subvert the statute cannot be sanctioned. (Emphases supplied)

b. Application.

In the cases at bar, the Court observes that the 2013 PDAF Article, insofar as it confers post-
enactment identification authority to individual legislators, violates the principle of non-delegability
since said legislators are effectively allowed to individually exercise the power of appropriation,
which – as settled in Philconsa – is lodged in Congress.  That the power to appropriate must be
201

exercised only through legislation is clear from Section 29(1), Article VI of the 1987 Constitution
which states that: "No money shall be paid out of the Treasury except in pursuance of an
appropriation made by law." To understand what constitutes an act of appropriation, the Court, in
Bengzon v. Secretary of Justice and Insular Auditor  (Bengzon), held that the power of appropriation
202

involves (a) the setting apart by law of a certain sum from the public revenue for (b) a specified
purpose. Essentially, under the 2013 PDAF Article, individual legislators are given a personal lump-
sum fund from which they are able to dictate (a) how much from such fund would go to (b) a specific
project or beneficiary that they themselves also determine. As these two (2) acts comprise the
exercise of the power of appropriation as described in Bengzon, and given that the 2013 PDAF
Article authorizes individual legislators to perform the same, undoubtedly, said legislators have been
conferred the power to legislate which the Constitution does not, however, allow. Thus, keeping with
the principle of non-delegability of legislative power, the Court hereby declares the 2013 PDAF
Article, as well as all other forms of Congressional Pork Barrel which contain the similar legislative
identification feature as herein discussed, as unconstitutional.

3. Checks and Balances.

a. Statement of Principle; Item-Veto Power.

The fact that the three great powers of government are intended to be kept separate and distinct
does not mean that they are absolutely unrestrained and independent of each other. The
Constitution has also provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government. 203

A prime example of a constitutional check and balance would be the President’s power to veto an
item written into an appropriation, revenue or tariff bill submitted to him by Congress for approval
through a process known as "bill presentment." The President‘s item-veto power is found in Section
27(2), Article VI of the 1987 Constitution which reads as follows:

Sec. 27. x x x.

xxxx

(2) The President shall have the power to veto any particular item or items in an appropriation,
revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object.

The presentment of appropriation, revenue or tariff bills to the President, wherein he may exercise
his power of item-veto, forms part of the "single, finely wrought and exhaustively considered,
procedures" for law-passage as specified under the Constitution.  As stated in Abakada, the final
204
step in the law-making process is the "submission of the bill to the President for approval. Once
approved, it takes effect as law after the required publication." 205

Elaborating on the President‘s item-veto power and its relevance as a check on the legislature, the
Court, in Bengzon, explained that: 206

The former Organic Act and the present Constitution of the Philippines make the Chief Executive an
integral part of the law-making power. His disapproval of a bill, commonly known as a veto, is
essentially a legislative act. The questions presented to the mind of the Chief Executive are precisely
the same as those the legislature must determine in passing a bill, except that his will be a broader
point of view.

The Constitution is a limitation upon the power of the legislative department of the government, but
in this respect it is a grant of power to the executive department. The Legislature has the affirmative
power to enact laws; the Chief Executive has the negative power by the constitutional exercise of
which he may defeat the will of the Legislature. It follows that the Chief Executive must find his
authority in the Constitution. But in exercising that authority he may not be confined to rules of strict
construction or hampered by the unwise interference of the judiciary. The courts will indulge every
intendment in favor of the constitutionality of a veto in the same manner as they will presume the
constitutionality of an act as originally passed by the Legislature. (Emphases supplied)

The justification for the President‘s item-veto power rests on a variety of policy goals such as to
prevent log-rolling legislation,  impose fiscal restrictions on the legislature, as well as to fortify the
207

executive branch‘s role in the budgetary process.  In Immigration and Naturalization Service v.
208

Chadha, the US Supreme Court characterized the President‘s item-power as "a salutary check upon
the legislative body, calculated to guard the community against the effects of factions, precipitancy,
or of any impulse unfriendly to the public good, which may happen to influence a majority of that
body"; phrased differently, it is meant to "increase the chances in favor of the community against the
passing of bad laws, through haste, inadvertence, or design." 209

For the President to exercise his item-veto power, it necessarily follows that there exists a proper
"item" which may be the object of the veto. An item, as defined in the field of appropriations, pertains
to "the particulars, the details, the distinct and severable parts of the appropriation or of the bill." In
the case of Bengzon v. Secretary of Justice of the Philippine Islands,  the US Supreme Court
210

characterized an item of appropriation as follows:

An item of an appropriation bill obviously means an item which, in itself, is a specific appropriation of
money, not some general provision of law which happens to be put into an appropriation bill.
(Emphases supplied)

On this premise, it may be concluded that an appropriation bill, to ensure that the President may be
able to exercise his power of item veto, must contain "specific appropriations of money" and not only
"general provisions" which provide for parameters of appropriation.

Further, it is significant to point out that an item of appropriation must be an item characterized by
singular correspondence – meaning an allocation of a specified singular amount for a specified
singular purpose, otherwise known as a "line-item."  This treatment not only allows the item to be
211

consistent with its definition as a "specific appropriation of money" but also ensures that the
President may discernibly veto the same. Based on the foregoing formulation, the existing Calamity
Fund, Contingent Fund and the Intelligence Fund, being appropriations which state a specified
amount for a specific purpose, would then be considered as "line- item" appropriations which are
rightfully subject to item veto. Likewise, it must be observed that an appropriation may be validly
apportioned into component percentages or values; however, it is crucial that each percentage or
value must be allocated for its own corresponding purpose for such component to be considered as
a proper line-item. Moreover, as Justice Carpio correctly pointed out, a valid appropriation may even
have several related purposes that are by accounting and budgeting practice considered as one
purpose, e.g., MOOE (maintenance and other operating expenses), in which case the related
purposes shall be deemed sufficiently specific for the exercise of the President‘s item veto power.
Finally, special purpose funds and discretionary funds would equally square with the constitutional
mechanism of item-veto for as long as they follow the rule on singular correspondence as herein
discussed. Anent special purpose funds, it must be added that Section 25(4), Article VI of the 1987
Constitution requires that the "special appropriations bill shall specify the purpose for which it is
intended, and shall be supported by funds actually available as certified by the National Treasurer,
or t o be raised by a corresponding revenue proposal therein." Meanwhile, with respect to
discretionary funds, Section 2 5(6), Article VI of the 1987 Constitution requires that said funds "shall
be disbursed only for public purposes to be supported by appropriate vouchers and subject to such
guidelines as may be prescribed by law."

In contrast, what beckons constitutional infirmity are appropriations which merely provide for a
singular lump-sum amount to be tapped as a source of funding for multiple purposes. Since such
appropriation type necessitates the further determination of both the actual amount to be expended
and the actual purpose of the appropriation which must still be chosen from the multiple purposes
stated in the law, it cannot be said that the appropriation law already indicates a "specific
appropriation of money‖ and hence, without a proper line-item which the President may veto. As a
practical result, the President would then be faced with the predicament of either vetoing the entire
appropriation if he finds some of its purposes wasteful or undesirable, or approving the entire
appropriation so as not to hinder some of its legitimate purposes. Finally, it may not be amiss to
state that such arrangement also raises non-delegability issues considering that the implementing
authority would still have to determine, again, both the actual amount to be expended and the actual
purpose of the appropriation. Since the foregoing determinations constitute the integral aspects of
the power to appropriate, the implementing authority would, in effect, be exercising legislative
prerogatives in violation of the principle of non-delegability.

b. Application.

In these cases, petitioners claim that "in the current x x x system where the PDAF is a lump-sum
appropriation, the legislator‘s identification of the projects after the passage of the GAA denies the
President the chance to veto that item later on."  Accordingly, they submit that the "item veto power
212

of the President mandates that appropriations bills adopt line-item budgeting" and that "Congress
cannot choose a mode of budgeting which effectively renders the constitutionally-given power of the
President useless." 213

On the other hand, respondents maintain that the text of the Constitution envisions a process which
is intended to meet the demands of a modernizing economy and, as such, lump-sum appropriations
are essential to financially address situations which are barely foreseen when a GAA is enacted.
They argue that the decision of the Congress to create some lump-sum appropriations is
constitutionally allowed and textually-grounded. 214

The Court agrees with petitioners.

Under the 2013 PDAF Article, the amount of ₱24.79 Billion only appears as a collective allocation
limit since the said amount would be further divided among individual legislators who would then
receive personal lump-sum allocations and could, after the GAA is passed, effectively appropriate
PDAF funds based on their own discretion. As these intermediate appropriations are made by
legislators only after the GAA is passed and hence, outside of the law, it necessarily means that the
actual items of PDAF appropriation would not have been written into the General Appropriations Bill
and thus effectuated without veto consideration. This kind of lump-sum/post-enactment legislative
identification budgeting system fosters the creation of a budget within a budget" which subverts the
prescribed procedure of presentment and consequently impairs the President‘s power of item veto.
As petitioners aptly point out, the above-described system forces the President to decide between
(a) accepting the entire ₱24.79 Billion PDAF allocation without knowing the specific projects of the
legislators, which may or may not be consistent with his national agenda and (b) rejecting the whole
PDAF to the detriment of all other legislators with legitimate projects. 215

Moreover, even without its post-enactment legislative identification feature, the 2013 PDAF Article
would remain constitutionally flawed since it would then operate as a prohibited form of lump-sum
appropriation above-characterized. In particular, the lump-sum amount of ₱24.79 Billion would be
treated as a mere funding source allotted for multiple purposes of spending, i.e., scholarships,
medical missions, assistance to indigents, preservation of historical materials, construction of roads,
flood control, etc. This setup connotes that the appropriation law leaves the actual amounts and
purposes of the appropriation for further determination and, therefore, does not readily indicate a
discernible item which may be subject to the President‘s power of item veto.

In fact, on the accountability side, the same lump-sum budgeting scheme has, as the CoA
Chairperson relays, "limited state auditors from obtaining relevant data and information that would
aid in more stringently auditing the utilization of said Funds."  Accordingly, she recommends the
216

adoption of a "line by line budget or amount per proposed program, activity or project, and per
implementing agency." 217

Hence, in view of the reasons above-stated, the Court finds the 2013 PDAF Article, as well as all
Congressional Pork Barrel Laws of similar operation, to be unconstitutional. That such budgeting
system provides for a greater degree of flexibility to account for future contingencies cannot be an
excuse to defeat what the Constitution requires. Clearly, the first and essential truth of the matter is
that unconstitutional means do not justify even commendable ends. 218

c. Accountability.

Petitioners further relate that the system under which various forms of Congressional Pork Barrel
operate defies public accountability as it renders Congress incapable of checking itself or its
Members. In particular, they point out that the Congressional Pork Barrel "gives each legislator a
direct, financial interest in the smooth, speedy passing of the yearly budget" which turns them "from
fiscalizers" into "financially-interested partners."  They also claim that the system has an effect on
219

re- election as "the PDAF excels in self-perpetuation of elective officials." Finally, they add that the
"PDAF impairs the power of impeachment" as such "funds are indeed quite useful, ‘to well,
accelerate the decisions of senators.‘" 220

The Court agrees in part.

The aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that "public
office is a public trust," is an overarching reminder that every instrumentality of government should
exercise their official functions only in accordance with the principles of the Constitution which
embodies the parameters of the people‘s trust. The notion of a public trust connotes
accountability,  hence, the various mechanisms in the Constitution which are designed to exact
221

accountability from public officers.

Among others, an accountability mechanism with which the proper expenditure of public funds may
be checked is the power of congressional oversight. As mentioned in Abakada,  congressional
222

oversight may be performed either through: (a) scrutiny based primarily on Congress‘ power of
appropriation and the budget hearings conducted in connection with it, its power to ask heads of
departments to appear before and be heard by either of its Houses on any matter pertaining to their
departments and its power of confirmation;  or (b) investigation and monitoring of the
223

implementation of laws pursuant to the power of Congress to conduct inquiries in aid of legislation. 224

The Court agrees with petitioners that certain features embedded in some forms of Congressional
Pork Barrel, among others the 2013 PDAF Article, has an effect on congressional oversight. The fact
that individual legislators are given post-enactment roles in the implementation of the budget makes
it difficult for them to become disinterested "observers" when scrutinizing, investigating or monitoring
the implementation of the appropriation law. To a certain extent, the conduct of oversight would be
tainted as said legislators, who are vested with post-enactment authority, would, in effect, be
checking on activities in which they themselves participate. Also, it must be pointed out that this very
same concept of post-enactment authorization runs afoul of Section 14, Article VI of the 1987
Constitution which provides that:

Sec. 14. No Senator or Member of the House of Representatives may personally appear as counsel
before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative
bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or in any
franchise or special privilege granted by the Government, or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation, or its subsidiary,
during his term of office. He shall not intervene in any matter before any office of the Government for
his pecuniary benefit or where he may be called upon to act on account of his office. (Emphasis
supplied)

Clearly, allowing legislators to intervene in the various phases of project implementation – a matter
before another office of government – renders them susceptible to taking undue advantage of their
own office.

The Court, however, cannot completely agree that the same post-enactment authority and/or the
individual legislator‘s control of his PDAF per se would allow him to perpetuate himself in office.
Indeed, while the Congressional Pork Barrel and a legislator‘s use thereof may be linked to this area
of interest, the use of his PDAF for re-election purposes is a matter which must be analyzed based
on particular facts and on a case-to-case basis.

Finally, while the Court accounts for the possibility that the close operational proximity between
legislators and the Executive department, through the former‘s post-enactment participation, may
affect the process of impeachment, this matter largely borders on the domain of politics and does not
strictly concern the Pork Barrel System‘s intrinsic constitutionality. As such, it is an improper subject
of judicial assessment.

In sum, insofar as its post-enactment features dilute congressional oversight and violate Section 14,
Article VI of the 1987 Constitution, thus impairing public accountability, the 2013 PDAF Article and
other forms of Congressional Pork Barrel of similar nature are deemed as unconstitutional.

4. Political Dynasties.

One of the petitioners submits that the Pork Barrel System enables politicians who are members of
political dynasties to accumulate funds to perpetuate themselves in power, in contravention of
Section 26, Article II of the 1987 Constitution  which states that:
225
Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit
political dynasties as may be defined by law. (Emphasis and underscoring supplied)

At the outset, suffice it to state that the foregoing provision is considered as not self-executing due to
the qualifying phrase "as may be defined by law." In this respect, said provision does not, by and of
itself, provide a judicially enforceable constitutional right but merely specifies guideline for legislative
or executive action.  Therefore, since there appears to be no standing law which crystallizes the
226

policy on political dynasties for enforcement, the Court must defer from ruling on this issue.

In any event, the Court finds the above-stated argument on this score to be largely speculative since
it has not been properly demonstrated how the Pork Barrel System would be able to propagate
political dynasties.

5. Local Autonomy.

The State‘s policy on local autonomy is principally stated in Section 25, Article II and Sections 2 and
3, Article X of the 1987 Constitution which read as follows:

ARTICLE II

Sec. 25. The State shall ensure the autonomy of local governments.

ARTICLE X

Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.

Sec. 3. The Congress shall enact a local government code which shall provide for a more
responsive and accountable local government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the
different local government units their powers, responsibilities, and resources, and provide for the
qualifications, election, appointment and removal, term, salaries, powers and functions and duties of
local officials, and all other matters relating to the organization and operation of the local units.

Pursuant thereto, Congress enacted RA 7160,  otherwise known as the "Local Government Code of
227

1991" (LGC), wherein the policy on local autonomy had been more specifically explicated as follows:

Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy of the State that the territorial and
political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them
to attain their fullest development as self-reliant communities and make them more effective partners
in the attainment of national goals. Toward this end, the State shall provide for a more responsive
and accountable local government structure instituted through a system of decentralization whereby
local government units shall be given more powers, authority, responsibilities, and resources. The
process of decentralization shall proceed from the National Government to the local government
units.

xxxx

(c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic
consultations with appropriate local government units, nongovernmental and people‘s organizations,
and other concerned sectors of the community before any project or program is implemented in their
respective jurisdictions. (Emphases and underscoring supplied)
The above-quoted provisions of the Constitution and the LGC reveal the policy of the State to
empower local government units (LGUs) to develop and ultimately, become self-sustaining and
effective contributors to the national economy. As explained by the Court in Philippine Gamefowl
Commission v. Intermediate Appellate Court: 228

This is as good an occasion as any to stress the commitment of the Constitution to the policy of local
autonomy which is intended to provide the needed impetus and encouragement to the development
of our local political subdivisions as "self - reliant communities." In the words of Jefferson, "Municipal
corporations are the small republics from which the great one derives its strength." The vitalization of
local governments will enable their inhabitants to fully exploit their resources and more important,
imbue them with a deepened sense of involvement in public affairs as members of the body politic.
This objective could be blunted by undue interference by the national government in purely local
affairs which are best resolved by the officials and inhabitants of such political units. The decision we
reach today conforms not only to the letter of the pertinent laws but also to the spirit of the
Constitution.  (Emphases and underscoring supplied)
229

In the cases at bar, petitioners contend that the Congressional Pork Barrel goes against the
constitutional principles on local autonomy since it allows district representatives, who are national
officers, to substitute their judgments in utilizing public funds for local development.  The Court
230

agrees with petitioners.

Philconsa described the 1994 CDF as an attempt "to make equal the unequal" and that "it is also a
recognition that individual members of Congress, far more than the President and their
congressional colleagues, are likely to be knowledgeable about the needs of their respective
constituents and the priority to be given each project."  Drawing strength from this pronouncement,
231

previous legislators justified its existence by stating that "the relatively small projects implemented
under the Congressional Pork Barrel complement and link the national development goals to the
countryside and grassroots as well as to depressed areas which are overlooked by central agencies
which are preoccupied with mega-projects.  Similarly, in his August 23, 2013 speech on the
232

"abolition" of PDAF and budgetary reforms, President Aquino mentioned that the Congressional
Pork Barrel was originally established for a worthy goal, which is to enable the representatives to
identify projects for communities that the LGU concerned cannot afford. 233

Notwithstanding these declarations, the Court, however, finds an inherent defect in the system which
actually belies the avowed intention of "making equal the unequal." In particular, the Court observes
that the gauge of PDAF and CDF allocation/division is based solely on the fact of office, without
taking into account the specific interests and peculiarities of the district the legislator represents. In
this regard, the allocation/division limits are clearly not based on genuine parameters of equality,
wherein economic or geographic indicators have been taken into consideration. As a result, a district
representative of a highly-urbanized metropolis gets the same amount of funding as a district
representative of a far-flung rural province which would be relatively "underdeveloped" compared to
the former. To add, what rouses graver scrutiny is that even Senators and Party-List
Representatives – and in some years, even the Vice-President – who do not represent any locality,
receive funding from the Congressional Pork Barrel as well. These certainly are anathema to the
Congressional Pork Barrel‘s original intent which is "to make equal the unequal." Ultimately, the
PDAF and CDF had become personal funds under the effective control of each legislator and given
unto them on the sole account of their office.

The Court also observes that this concept of legislator control underlying the CDF and PDAF
conflicts with the functions of the various Local Development Councils (LDCs) which are already
legally mandated to "assist the corresponding sanggunian in setting the direction of economic and
social development, and coordinating development efforts within its territorial
jurisdiction."  Considering that LDCs are instrumentalities whose functions are essentially geared
234

towards managing local affairs,  their programs, policies and resolutions should not be overridden
235

nor duplicated by individual legislators, who are national officers that have no law-making authority
except only when acting as a body. The undermining effect on local autonomy caused by the post-
enactment authority conferred to the latter was succinctly put by petitioners in the following wise:
236

With PDAF, a Congressman can simply bypass the local development council and initiate projects
on his own, and even take sole credit for its execution. Indeed, this type of personality-driven project
identification has not only contributed little to the overall development of the district, but has even
contributed to "further weakening infrastructure planning and coordination efforts of the government."

Thus, insofar as individual legislators are authorized to intervene in purely local matters and thereby
subvert genuine local autonomy, the 2013 PDAF Article as well as all other similar forms of
Congressional Pork Barrel is deemed unconstitutional.

With this final issue on the Congressional Pork Barrel resolved, the Court now turns to the
substantive issues involving the Presidential Pork Barrel.

C. Substantive Issues on the Presidential Pork Barrel.

1. Validity of Appropriation.

Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of PD1869 (now, amended by PD
1993), which respectively provide for the Malampaya Funds and the Presidential Social Fund, as
invalid appropriations laws since they do not have the "primary and specific" purpose of authorizing
the release of public funds from the National Treasury. Petitioners submit that Section 8 of PD 910 is
not an appropriation law since the "primary and specific‖ purpose of PD 910 is the creation of an
Energy Development Board and Section 8 thereof only created a Special Fund incidental
thereto.  In similar regard, petitioners argue that Section 12 of PD 1869 is neither a valid
237

appropriations law since the allocation of the Presidential Social Fund is merely incidental to the
"primary and specific" purpose of PD 1869 which is the amendment of the Franchise and Powers of
PAGCOR.  In view of the foregoing, petitioners suppose that such funds are being used without any
238

valid law allowing for their proper appropriation in violation of Section 29(1), Article VI of the 1987
Constitution which states that: "No money shall be paid out of the Treasury except in pursuance of
an appropriation made by law." 239

The Court disagrees.

"An appropriation made by law‖ under the contemplation of Section 29(1), Article VI of the 1987
Constitution exists when a provision of law (a) sets apart a determinate or determinable  amount of
240

money and (b) allocates the same for a particular public purpose. These two minimum designations
of amount and purpose stem from the very definition of the word "appropriation," which means "to
allot, assign, set apart or apply to a particular use or purpose," and hence, if written into the law,
demonstrate that the legislative intent to appropriate exists. As the Constitution "does not provide or
prescribe any particular form of words or religious recitals in which an authorization or appropriation
by Congress shall be made, except that it be ‘made by law,‘" an appropriation law may – according
to Philconsa – be "detailed and as broad as Congress wants it to be" for as long as the intent to
appropriate may be gleaned from the same. As held in the case of Guingona, Jr.: 241

There is no provision in our Constitution that provides or prescribes any particular form of words or
religious recitals in which an authorization or appropriation by Congress shall be made, except that it
be "made by law," such as precisely the authorization or appropriation under the questioned
presidential decrees. In other words, in terms of time horizons, an appropriation may be made
impliedly (as by past but subsisting legislations) as well as expressly for the current fiscal year (as by
enactment of laws by the present Congress), just as said appropriation may be made in general as
well as in specific terms. The Congressional authorization may be embodied in annual laws, such as
a general appropriations act or in special provisions of laws of general or special application which
appropriate public funds for specific public purposes, such as the questioned decrees. An
appropriation measure is sufficient if the legislative intention clearly and certainly appears from the
language employed (In re Continuing Appropriations, 32 P. 272), whether in the past or in the
present. (Emphases and underscoring supplied)

Likewise, as ruled by the US Supreme Court in State of Nevada v. La Grave: 242

To constitute an appropriation there must be money placed in a fund applicable to the designated
purpose. The word appropriate means to allot, assign, set apart or apply to a particular use or
purpose. An appropriation in the sense of the constitution means the setting apart a portion of the
public funds for a public purpose. No particular form of words is necessary for the purpose, if the
intention to appropriate is plainly manifested. (Emphases supplied)

Thus, based on the foregoing, the Court cannot sustain the argument that the appropriation must be
the "primary and specific" purpose of the law in order for a valid appropriation law to exist. To
reiterate, if a legal provision designates a determinate or determinable amount of money and
allocates the same for a particular public purpose, then the legislative intent to appropriate becomes
apparent and, hence, already sufficient to satisfy the requirement of an "appropriation made by law"
under contemplation of the Constitution.

Section 8 of PD 910 pertinently provides:

Section 8. Appropriations. x x x

All fees, revenues and receipts of the Board from any and all sources including receipts from service
contracts and agreements such as application and processing fees, signature bonus, discovery
bonus, production bonus; all money collected from concessionaires, representing unspent work
obligations, fines and penalties under the Petroleum Act of 1949; as well as the government share
representing royalties, rentals, production share on service contracts and similar payments on the
exploration, development and exploitation of energy resources, shall form part of a Special Fund to
be used to finance energy resource development and exploitation programs and projects of the
government and for such other purposes as may be hereafter directed by the President. (Emphases
supplied)

Whereas Section 12 of PD 1869, as amended by PD 1993, reads:

Sec. 12. Special Condition of Franchise. — After deducting five (5%) percent as Franchise Tax, the
Fifty (50%) percent share of the Government in the aggregate gross earnings of the Corporation
from this Franchise, or 60% if the aggregate gross earnings be less than ₱150,000,000.00 shall be
set aside and shall accrue to the General Fund to finance the priority infrastructure development
projects and to finance the restoration of damaged or destroyed facilities due to calamities, as may
be directed and authorized by the Office of the President of the Philippines. (Emphases supplied)

Analyzing the legal text vis-à-vis the above-mentioned principles, it may then be concluded that (a)
Section 8 of PD 910, which creates a Special Fund comprised of "all fees, revenues, and receipts of
the Energy Development Board from any and all sources" (a determinable amount) "to be used to
finance energy resource development and exploitation programs and projects of the government and
for such other purposes as may be hereafter directed by the President" (a specified public purpose),
and (b) Section 12 of PD 1869, as amended by PD 1993, which similarly sets aside, "after deducting
five (5%) percent as Franchise Tax, the Fifty (50%) percent share of the Government in the
aggregate gross earnings of PAGCOR, or 60%, if the aggregate gross earnings be less than
₱150,000,000.00" (also a determinable amount) "to finance the priority infrastructure development
projects and x x x the restoration of damaged or destroyed facilities due to calamities, as may be
directed and authorized by the Office of the President of the Philippines" (also a specified public
purpose), are legal appropriations under Section 29(1), Article VI of the 1987 Constitution.

In this relation, it is apropos to note that the 2013 PDAF Article cannot be properly deemed as a
legal appropriation under the said constitutional provision precisely because, as earlier stated, it
contains post-enactment measures which effectively create a system of intermediate appropriations.
These intermediate appropriations are the actual appropriations meant for enforcement and since
they are made by individual legislators after the GAA is passed, they occur outside the law. As such,
the Court observes that the real appropriation made under the 2013 PDAF Article is not the ₱24.79
Billion allocated for the entire PDAF, but rather the post-enactment determinations made by the
individual legislators which are, to repeat, occurrences outside of the law. Irrefragably, the 2013
PDAF Article does not constitute an "appropriation made by law" since it, in its truest sense, only
authorizes individual legislators to appropriate in violation of the non-delegability principle as afore-
discussed.

2. Undue Delegation.

On a related matter, petitioners contend that Section 8 of PD 910 constitutes an undue delegation of
legislative power since the phrase "and for such other purposes as may be hereafter directed by the
President" gives the President "unbridled discretion to determine for what purpose the funds will be
used."  Respondents, on the other hand, urged the Court to apply the principle of ejusdem generis
243

to the same section and thus, construe the phrase "and for such other purposes as may be hereafter
directed by the President" to refer only to other purposes related "to energy resource development
and exploitation programs and projects of the government." 244

The Court agrees with petitioners‘ submissions.

While the designation of a determinate or determinable amount for a particular public purpose is
sufficient for a legal appropriation to exist, the appropriation law must contain adequate legislative
guidelines if the same law delegates rule-making authority to the Executive  either for the purpose
245

of (a) filling up the details of the law for its enforcement, known as supplementary rule-making, or (b)
ascertaining facts to bring the law into actual operation, referred to as contingent rule-
making.  There are two (2) fundamental tests to ensure that the legislative guidelines for delegated
246

rule-making are indeed adequate. The first test is called the "completeness test." Case law states
that a law is complete when it sets forth therein the policy to be executed, carried out, or
implemented by the delegate. On the other hand, the second test is called the "sufficient standard
test." Jurisprudence holds that a law lays down a sufficient standard when it provides adequate
guidelines or limitations in the law to map out the boundaries of the delegate‘s authority and prevent
the delegation from running riot.  To be sufficient, the standard must specify the limits of the
247

delegate‘s authority, announce the legislative policy, and identify the conditions under which it is to
be implemented. 248

In view of the foregoing, the Court agrees with petitioners that the phrase "and for such other
purposes as may be hereafter directed by the President" under Section 8 of PD 910 constitutes an
undue delegation of legislative power insofar as it does not lay down a sufficient standard to
adequately determine the limits of the President‘s authority with respect to the purpose for which the
Malampaya Funds may be used. As it reads, the said phrase gives the President wide latitude to use
the Malampaya Funds for any other purpose he may direct and, in effect, allows him to unilaterally
appropriate public funds beyond the purview of the law. That the subject phrase may be confined
only to "energy resource development and exploitation programs and projects of the government"
under the principle of ejusdem generis, meaning that the general word or phrase is to be construed
to include – or be restricted to – things akin to, resembling, or of the same kind or class as those
specifically mentioned,  is belied by three (3) reasons: first, the phrase "energy resource
249

development and exploitation programs and projects of the government" states a singular and
general class and hence, cannot be treated as a statutory reference of specific things from which the
general phrase "for such other purposes" may be limited; second, the said phrase also exhausts the
class it represents, namely energy development programs of the government;  and, third, the
250

Executive department has, in fact, used the Malampaya Funds for non-energy related purposes
under the subject phrase, thereby contradicting respondents‘ own position that it is limited only to
"energy resource development and exploitation programs and projects of the government."  Thus,251

while Section 8 of PD 910 may have passed the completeness test since the policy of energy
development is clearly deducible from its text, the phrase "and for such other purposes as may be
hereafter directed by the President" under the same provision of law should nonetheless be stricken
down as unconstitutional as it lies independently unfettered by any sufficient standard of the
delegating law. This notwithstanding, it must be underscored that the rest of Section 8, insofar as it
allows for the use of the Malampaya Funds "to finance energy resource development and
exploitation programs and projects of the government," remains legally effective and subsisting.
Truth be told, the declared unconstitutionality of the aforementioned phrase is but an assurance that
the Malampaya Funds would be used – as it should be used – only in accordance with the avowed
purpose and intention of PD 910.

As for the Presidential Social Fund, the Court takes judicial notice of the fact that Section 12 of PD
1869 has already been amended by PD 1993 which thus moots the parties‘ submissions on the
same.  Nevertheless, since the amendatory provision may be readily examined under the current
252

parameters of discussion, the Court proceeds to resolve its constitutionality.

Primarily, Section 12 of PD 1869, as amended by PD 1993, indicates that the Presidential Social
Fund may be used "to first, finance the priority infrastructure development projects and second, to
finance the restoration of damaged or destroyed facilities due to calamities, as may be directed and
authorized by the Office of the President of the Philippines." The Court finds that while the second
indicated purpose adequately curtails the authority of the President to spend the Presidential Social
Fund only for restoration purposes which arise from calamities, the first indicated purpose, however,
gives him carte blanche authority to use the same fund for any infrastructure project he may so
determine as a "priority". Verily, the law does not supply a definition of "priority in frastructure
development projects" and hence, leaves the President without any guideline to construe the same.
To note, the delimitation of a project as one of "infrastructure" is too broad of a classification since
the said term could pertain to any kind of facility. This may be deduced from its lexicographic
definition as follows: "the underlying framework of a system, especially public services and facilities
(such as highways, schools, bridges, sewers, and water-systems) needed to support commerce as
well as economic and residential development."  In fine, the phrase "to finance the priority
253

infrastructure development projects" must be stricken down as unconstitutional since – similar to the
above-assailed provision under Section 8 of PD 910 – it lies independently unfettered by any
sufficient standard of the delegating law. As they are severable, all other provisions of Section 12 of
PD 1869, as amended by PD 1993, remains legally effective and subsisting.

D. Ancillary Prayers. 1.

Petitioners’ Prayer to be Furnished Lists and Detailed Reports.

Aside from seeking the Court to declare the Pork Barrel System unconstitutional – as the Court did
so in the context of its pronouncements made in this Decision – petitioners equally pray that the
Executive Secretary and/or the DBM be ordered to release to the CoA and to the public: (a) "the
complete schedule/list of legislators who have availed of their PDAF and VILP from the years 2003
to 2013, specifying the use of the funds, the project or activity and the recipient entities or
individuals, and all pertinent data thereto" (PDAF Use Schedule/List);  and (b) "the use of the
254

Executive‘s lump-sum, discretionary funds, including the proceeds from the x x x Malampaya Funds
and remittances from the PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity
and the recipient entities or individuals, and all pertinent data thereto"  (Presidential Pork Use
255

Report). Petitioners‘ prayer is grounded on Section 28, Article II and Section 7, Article III of the 1987
Constitution which read as follows:

ARTICLE II

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a
policy of full public disclosure of all its transactions involving public interest.

ARTICLE III Sec. 7.

The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents and papers pertaining to official acts, transactions, or decisions,
as well as to government research data used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law.

The Court denies petitioners‘ submission.

Case law instructs that the proper remedy to invoke the right to information is to file a petition for
mandamus. As explained in the case of Legaspi v. Civil Service Commission: 256

While the manner of examining public records may be subject to reasonable regulation by the
government agency in custody thereof, the duty to disclose the information of public concern, and to
afford access to public records cannot be discretionary on the part of said agencies. Certainly, its
performance cannot be made contingent upon the discretion of such agencies. Otherwise, the
enjoyment of the constitutional right may be rendered nugatory by any whimsical exercise of agency
discretion. The constitutional duty, not being discretionary, its performance may be compelled by a
writ of mandamus in a proper case.

But what is a proper case for Mandamus to issue? In the case before Us, the public right to be
enforced and the concomitant duty of the State are unequivocably set forth in the Constitution.

The decisive question on the propriety of the issuance of the writ of mandamus in this case is,
whether the information sought by the petitioner is within the ambit of the constitutional guarantee.
(Emphases supplied)

Corollarily, in the case of Valmonte v. Belmonte Jr.  (Valmonte), it has been clarified that the right to
257

information does not include the right to compel the preparation of "lists, abstracts, summaries and
the like." In the same case, it was stressed that it is essential that the "applicant has a well -defined,
clear and certain legal right to the thing demanded and that it is the imperative duty of defendant to
perform the act required." Hence, without the foregoing substantiations, the Court cannot grant a
particular request for information. The pertinent portions of Valmonte are hereunder quoted: 258
Although citizens are afforded the right to information and, pursuant thereto, are entitled to "access
to official records," the Constitution does not accord them a right to compel custodians of official
records to prepare lists, abstracts, summaries and the like in their desire to acquire information on
matters of public concern.

It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a well-
defined, clear and certain legal right to the thing demanded and that it is the imperative duty of
defendant to perform the act required. The corresponding duty of the respondent to perform the
required act must be clear and specific Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126
SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.

The request of the petitioners fails to meet this standard, there being no duty on the part of
respondent to prepare the list requested. (Emphases supplied)

In these cases, aside from the fact that none of the petitions are in the nature of mandamus actions,
the Court finds that petitioners have failed to establish a "a well-defined, clear and certain legal right"
to be furnished by the Executive Secretary and/or the DBM of their requested PDAF Use
Schedule/List and Presidential Pork Use Report. Neither did petitioners assert any law or
administrative issuance which would form the bases of the latter‘s duty to furnish them with the
documents requested. While petitioners pray that said information be equally released to the CoA, it
must be pointed out that the CoA has not been impleaded as a party to these cases nor has it filed
any petition before the Court to be allowed access to or to compel the release of any official
document relevant to the conduct of its audit investigations. While the Court recognizes that the
information requested is a matter of significant public concern, however, if only to ensure that the
parameters of disclosure are properly foisted and so as not to unduly hamper the equally important
interests of the government, it is constrained to deny petitioners‘ prayer on this score, without
prejudice to a proper mandamus case which they, or even the CoA, may choose to pursue through a
separate petition.

It bears clarification that the Court‘s denial herein should only cover petitioners‘ plea to be furnished
with such schedule/list and report and not in any way deny them, or the general public, access to
official documents which are already existing and of public record. Subject to reasonable regulation
and absent any valid statutory prohibition, access to these documents should not be proscribed.
Thus, in Valmonte, while the Court denied the application for mandamus towards the preparation of
the list requested by petitioners therein, it nonetheless allowed access to the documents sought for
by the latter, subject, however, to the custodian‘s reasonable regulations,viz.: 259

In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS,
subject to reasonable regulations that the latter may promulgate relating to the manner and hours of
examination, to the end that damage to or loss of the records may be avoided, that undue
interference with the duties of the custodian of the records may be prevented and that the right of
other persons entitled to inspect the records may be insured Legaspi v. Civil Service Commission,
supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 383, 387. The petition, as to the second and third
alternative acts sought to be done by petitioners, is meritorious.

However, the same cannot be said with regard to the first act sought by petitioners, i.e.,

"to furnish petitioners the list of the names of the Batasang Pambansa members belonging to the
UNIDO and PDP-Laban who were able to secure clean loans immediately before the February 7
election thru the intercession/marginal note of the then First Lady Imelda Marcos."

The Court, therefore, applies the same treatment here.

2. Petitioners’ Prayer to Include Matters in Congressional Deliberations.

Petitioners further seek that the Court "order the inclusion in budgetary deliberations with the
Congress of all presently, off-budget, lump sum, discretionary funds including but not limited to,
proceeds from the x x x Malampaya Fund, remittances from the PAGCOR and the PCSO or the
Executive‘s Social Funds." 260

Suffice it to state that the above-stated relief sought by petitioners covers a matter which is generally
left to the prerogative of the political branches of government. Hence, lest the Court itself overreach,
it must equally deny their prayer on this score.

3. Respondents’ Prayer to Lift TRO; Consequential Effects of Decision.

The final issue to be resolved stems from the interpretation accorded by the DBM to the concept of
released funds. In response to the Court‘s September 10, 2013 TRO that enjoined the release of the
remaining PDAF allocated for the year 2013, the DBM issued Circular Letter No. 2013-8 dated
September 27, 2013 (DBM Circular 2013-8) which pertinently reads as follows:

3.0 Nonetheless, PDAF projects funded under the FY 2013 GAA, where a Special Allotment
Release Order (SARO) has been issued by the DBM and such SARO has been obligated by the
implementing agencies prior to the issuance of the TRO, may continually be implemented and
disbursements thereto effected by the agencies concerned.

Based on the text of the foregoing, the DBM authorized the continued implementation and
disbursement of PDAF funds as long as they are: first, covered by a SARO; and, second, that said
SARO had been obligated by the implementing agency concerned prior to the issuance of the
Court‘s September 10, 2013 TRO.

Petitioners take issue with the foregoing circular, arguing that "the issuance of the SARO does not
yet involve the release of funds under the PDAF, as release is only triggered by the issuance of a
Notice of Cash Allocation [(NCA)]."  As such, PDAF disbursements, even if covered by an obligated
261

SARO, should remain enjoined.

For their part, respondents espouse that the subject TRO only covers "unreleased and unobligated
allotments." They explain that once a SARO has been issued and obligated by the implementing
agency concerned, the PDAF funds covered by the same are already "beyond the reach of the TRO
because they cannot be considered as ‘remaining PDAF.‘" They conclude that this is a reasonable
interpretation of the TRO by the DBM. 262

The Court agrees with petitioners in part.

At the outset, it must be observed that the issue of whether or not the Court‘s September 10, 2013
TRO should be lifted is a matter rendered moot by the present Decision. The unconstitutionality of
the 2013 PDAF Article as declared herein has the consequential effect of converting the temporary
injunction into a permanent one. Hence, from the promulgation of this Decision, the release of the
remaining PDAF funds for 2013, among others, is now permanently enjoined.

The propriety of the DBM‘s interpretation of the concept of "release" must, nevertheless, be resolved
as it has a practical impact on the execution of the current Decision. In particular, the Court must
resolve the issue of whether or not PDAF funds covered by obligated SAROs, at the time this
Decision is promulgated, may still be disbursed following the DBM‘s interpretation in DBM Circular
2013-8.

On this score, the Court agrees with petitioners‘ posturing for the fundamental reason that funds
covered by an obligated SARO are yet to be "released" under legal contemplation. A SARO, as
defined by the DBM itself in its website, is "aspecific authority issued to identified agencies to incur
obligations not exceeding a given amount during a specified period for the purpose indicated. It shall
cover expenditures the release of which is subject to compliance with specific laws or regulations, or
is subject to separate approval or clearance by competent authority." 263

Based on this definition, it may be gleaned that a SARO only evinces the existence of an obligation
and not the directive to pay. Practically speaking, the SARO does not have the direct and immediate
effect of placing public funds beyond the control of the disbursing authority. In fact, a SARO may
even be withdrawn under certain circumstances which will prevent the actual release of funds. On
the other hand, the actual release of funds is brought about by the issuance of the NCA,  which is
264

subsequent to the issuance of a SARO. As may be determined from the statements of the DBM
representative during the Oral Arguments: 265

Justice Bernabe: Is the notice of allocation issued simultaneously with the SARO?

xxxx

Atty. Ruiz: It comes after. The SARO, Your Honor, is only the go signal for the agencies to obligate
or to enter into commitments. The NCA, Your Honor, is already the go signal to the treasury for us to
be able to pay or to liquidate the amounts obligated in the SARO; so it comes after. x x x The NCA,
Your Honor, is the go signal for the MDS for the authorized government-disbursing banks to,
therefore, pay the payees depending on the projects or projects covered by the SARO and the NCA.

Justice Bernabe: Are there instances that SAROs are cancelled or revoked?

Atty. Ruiz: Your Honor, I would like to instead submit that there are instances that the SAROs issued
are withdrawn by the DBM.

Justice Bernabe: They are withdrawn?

Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring supplied)

Thus, unless an NCA has been issued, public funds should not be treated as funds which have been
"released." In this respect, therefore, the disbursement of 2013 PDAF funds which are only covered
by obligated SAROs, and without any corresponding NCAs issued, must, at the time of this
Decision’s promulgation, be enjoined and consequently reverted to the unappropriated surplus of the
general fund. Verily, in view of the declared unconstitutionality of the 2013 PDAF Article, the funds
appropriated pursuant thereto cannot be disbursed even though already obligated, else the Court
sanctions the dealing of funds coming from an unconstitutional source.

This same pronouncement must be equally applied to (a) the Malampaya Funds which have been
obligated but not released – meaning, those merely covered by a SARO – under the phrase "and for
such other purposes as may be hereafter directed by the President" pursuant to Section 8 of PD
910; and (b) funds sourced from the Presidential Social Fund under the phrase "to finance the
priority infrastructure development projects" pursuant to Section 12 of PD 1869, as amended by PD
1993, which were altogether declared by the Court as unconstitutional. However, these funds should
not be reverted to the general fund as afore-stated but instead, respectively remain under the
Malampaya Funds and the Presidential Social Fund to be utilized for their corresponding special
purposes not otherwise declared as unconstitutional.

E. Consequential Effects of Decision.

As a final point, it must be stressed that the Court‘s pronouncement anent the unconstitutionality of
(a) the 2013 PDAF Article and its Special Provisions, (b) all other Congressional Pork Barrel
provisions similar thereto, and (c) the phrases (1) "and for such other purposes as may be hereafter
directed by the President" under Section 8 of PD 910, and (2) "to finance the priority infrastructure
development projects" under Section 12 of PD 1869, as amended by PD 1993, must only be treated
as prospective in effect in view of the operative fact doctrine.

To explain, the operative fact doctrine exhorts the recognition that until the judiciary, in an
appropriate case, declares the invalidity of a certain legislative or executive act, such act is
presumed constitutional and thus, entitled to obedience and respect and should be properly
enforced and complied with. As explained in the recent case of Commissioner of Internal Revenue v.
San Roque Power Corporation,  the doctrine merely "reflects awareness that precisely because the
266

judiciary is the governmental organ which has the final say on whether or not a legislative or
executive measure is valid, a period of time may have elapsed before it can exercise the power of
judicial review that may lead to a declaration of nullity. It would be to deprive the law of its quality of
fairness and justice then, if there be no recognition of what had transpired prior to such
adjudication."  "In the language of an American Supreme Court decision: ‘The actual existence of a
267

statute, prior to such a determination of unconstitutionality, is an operative fact and may have
consequences which cannot justly be ignored.‘" 268

For these reasons, this Decision should be heretofore applied prospectively.

Conclusion

The Court renders this Decision to rectify an error which has persisted in the chronicles of our
history. In the final analysis, the Court must strike down the Pork Barrel System as unconstitutional
in view of the inherent defects in the rules within which it operates. To recount, insofar as it has
allowed legislators to wield, in varying gradations, non-oversight, post-enactment authority in vital
areas of budget execution, the system has violated the principle of separation of powers; insofar as it
has conferred unto legislators the power of appropriation by giving them personal, discretionary
funds from which they are able to fund specific projects which they themselves determine, it has
similarly violated the principle of non-delegability of legislative power ; insofar as it has created a
system of budgeting wherein items are not textualized into the appropriations bill, it has flouted the
prescribed procedure of presentment and, in the process, denied the President the power to veto
items ; insofar as it has diluted the effectiveness of congressional oversight by giving legislators a
stake in the affairs of budget execution, an aspect of governance which they may be called to
monitor and scrutinize, the system has equally impaired public accountability ; insofar as it has
authorized legislators, who are national officers, to intervene in affairs of purely local nature, despite
the existence of capable local institutions, it has likewise subverted genuine local autonomy ; and
again, insofar as it has conferred to the President the power to appropriate funds intended by law for
energy-related purposes only to other purposes he may deem fit as well as other public funds under
the broad classification of "priority infrastructure development projects," it has once more
transgressed the principle of non-delegability.

For as long as this nation adheres to the rule of law, any of the multifarious unconstitutional methods
and mechanisms the Court has herein pointed out should never again be adopted in any system of
governance, by any name or form, by any semblance or similarity, by any influence or effect.
Disconcerting as it is to think that a system so constitutionally unsound has monumentally endured,
the Court urges the people and its co-stewards in government to look forward with the optimism of
change and the awareness of the past. At a time of great civic unrest and vociferous public debate,
the Court fervently hopes that its Decision today, while it may not purge all the wrongs of society nor
bring back what has been lost, guides this nation to the path forged by the Constitution so that no
one may heretofore detract from its cause nor stray from its course. After all, this is the Court‘s
bounden duty and no other‘s.

WHEREFORE, the petitions are PARTLY GRANTED. In view of the constitutional violations
discussed in this Decision, the Court hereby declares as UNCONSTITUTIONAL: (a) the entire 2013
PDAF Article; (b) all legal provisions of past and present Congressional Pork Barrel Laws, such as
the previous PDAF and CDF Articles and the various Congressional Insertions, which authorize/d
legislators – whether individually or collectively organized into committees – to intervene, assume or
participate in any of the various post-enactment stages of the budget execution, such as but not
limited to the areas of project identification, modification and revision of project identification, fund
release and/or fund realignment, unrelated to the power of congressional oversight; (c) all legal
provisions of past and present Congressional Pork Barrel Laws, such as the previous PDAF and
CDF Articles and the various Congressional Insertions, which confer/red personal, lump-sum
allocations to legislators from which they are able to fund specific projects which they themselves
determine; (d) all informal practices of similar import and effect, which the Court similarly deems to
be acts of grave abuse of discretion amounting to lack or excess of jurisdiction; and (e) the phrases
(1) "and for such other purposes as may be hereafter directed by the President" under Section 8 of
Presidential Decree No. 910 and (2) "to finance the priority infrastructure development projects"
under Section 12 of Presidential Decree No. 1869, as amended by Presidential Decree No. 1993, for
both failing the sufficient standard test in violation of the principle of non-delegability of legislative
power.

Accordingly, the Court‘s temporary injunction dated September 10, 2013 is hereby declared to be
PERMANENT. Thus, the disbursement/release of the remaining PDAF funds allocated for the year
2013, as well as for all previous years, and the funds sourced from (1) the Malampaya Funds under
the phrase "and for such other purposes as may be hereafter directed by the President" pursuant to
Section 8 of Presidential Decree No. 910, and (2) the Presidential Social Fund under the phrase "to
finance the priority infrastructure development projects" pursuant to Section 12 of Presidential
Decree No. 1869, as amended by Presidential Decree No. 1993, which are, at the time this Decision
is promulgated, not covered by Notice of Cash Allocations (NCAs) but only by Special Allotment
Release Orders (SAROs), whether obligated or not, are hereby ENJOINED. The remaining PDAF
funds covered by this permanent injunction shall not be disbursed/released but instead reverted to
the unappropriated surplus of the general fund, while the funds under the Malampaya Funds and the
Presidential Social Fund shall remain therein to be utilized for their respective special purposes not
otherwise declared as unconstitutional.

On the other hand, due to improper recourse and lack of proper substantiation, the Court hereby
DENIES petitioners‘ prayer seeking that the Executive Secretary and/or the Department of Budget
and Management be ordered to provide the public and the Commission on Audit complete
lists/schedules or detailed reports related to the availments and utilization of the funds subject of
these cases. Petitioners‘ access to official documents already available and of public record which
are related to these funds must, however, not be prohibited but merely subjected to the custodian‘s
reasonable regulations or any valid statutory prohibition on the same. This denial is without prejudice
to a proper mandamus case which they or the Commission on Audit may choose to pursue through
a separate petition.
The Court also DENIES petitioners prayer to order the inclusion of the funds subject of these cases
in the budgetary deliberations of Congress as the same is a matter left to the prerogative of the
political branches of government.

Finally, the Court hereby DIRECTS all prosecutorial organs of the government to, within the bounds
of reasonable dispatch, investigate and accordingly prosecute all government officials and/or private
individuals for possible criminal offenses related to the irregular, improper and/or unlawful
disbursement/utilization of all funds under the Pork Barrel System.

This Decision is immediately executory but prospective in effect.

SO ORDERED.

G.R. No. L-2044             August 26, 1949

J. ANTONIO ARANETA, petitioner,
vs.
RAFAEL DINGLASAN, Judge of First Instance of Manila, and JOSE P. BENGZON, Fiscal of
City of Manila, respondents.

x---------------------------------------------------------x

G.R. No. L-2756             August 26, 1949

J. ANTONIO ARANETA and GREGORIO VILLAMOR, petitioners,

vs.
EUGENIO ANGELES, Fiscal of City of Manila, respondent.

x---------------------------------------------------------x

G.R. No. L-3054             August 26, 1949

EULOGIO RODRIGUEZ, Sr., por si y como Presidente del Partido Nacionalista, recurrente,

vs.
EL TESORERO DE FILIPINAS, recurrido.
x---------------------------------------------------------x

G.R. No. L-3055             August 26, 1949

LEON MA. GURRERO, petitioner,

vs.
THE COMMISSIONER OF CUSTOMS and THE ADMINISTRATOR, SUGAR QUOTA OFFICE,
DEPARTMENT OF COMMERCE AND INDUSTRY, respondents.

x---------------------------------------------------------x

G.R. No. L-3056             August 26, 1949

ANTONIO BARREDO, in his own behalf and on behalf of all taxpayers similarly
situated, petitioner,
vs.
THE COMMISSION ON ELECTIONS, THE AUDITOR GENERAL and THE INSULAR
TREASURER OF THE PHILIPPINES, respondents.

L-2044
Paredes, Diaz and Poblador, Jesus G. Barrera, Vicente Hilado, and Araneta and Araneta for
petitioner.
Office of the Solicitor General Felix Bautista Angelo, Assistant Solicitor General Ruperto Kapunan,
Jr., Solicitor Martiniano P. Vico and Assistant City Fiscal Julio Villamor for respondents.
Claro M. Recto and Padilla, Carlos and Fernando as amici curiae.

L-2756
Araneta and Araneta and Jesus G. Barrera for petitioners.
Assistant City Fiscal Luis B. Reyes for respondent.
Claro M. Recto as amici curiae.

L-3054
Claro M. Recto, Ramon Diokno, Jose O. Vera, Alejo Mabanag, Jose B. Laurel, Jr. and Antonio
Barredo for petitioner.
Office of the Solicitor General Felix Bautista Angelo for respondent.
Vicente de Vera, Chairman, Commission on Elections.
Alfonso Ponce Enrile, Alva J. Hill and Honorio Poblador, Jr. and Emiliano R. Navarro as amici
curiae.
Jesus G. Barrera, Enrique M. Fernando, Ramon Sunico, and Francisco A. Rodrigo also as amici
curiae.

L-3055
Claro M. Recto and Leon Ma. Guerrero for petitioner.
Office of the Solicitor General Felix Bautista Angelo for respondents.
V. G. Bunuan, Administrator, Sugar Quota Office.
Jesus G. Barrera, Felixberto M. Serrano, Enrique; Honorio Poblador, Jr. and Emiliano R. Navarro as
amici curiae.

L-3056
Claro M. Recto and Antonio Barredo for petitioner.
Office of the Solicitor General Felix Bautista Angelo for respondents.
Vicente de Vera, Chairman, Commission on Elections.
Alfonso Ponce Enrile, Alva J. Hill, Jesus G. Barrera, Enrique M. Fernando, Ramon Sunico and
Francisco A. Rodrigo; Honorio Poblador, Jr. and Emiliano R. Navarro as amici curiae.

TUASON, J.:

Three of these cases were consolidated for argument and the other two were argued separately on
other dates. Inasmuch as all of them present the same fundamental question which, in our view, is
decisive, they will be disposed of jointly. For the same reason we will pass up the objection to the
personality or sufficiency of interest of the petitioners in case G. R. No. L-3054 and case G. R. No. L-
3056 and the question whether prohibition lies in cases Nos. L-2044 and L-2756. No practical benefit
can be gained from a discussion of the procedural matters since the decision in the cases wherein
the petitioners' cause of action or the propriety of the procedure followed is not in dispute, will be
controlling authority on the others. Above all, the transcendental importance to the public of these
cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities
of procedure. (Avelino vs. Cuenco, G. R. No. L-2821.) The petitions challenge the validity of
executive orders of the President avowedly issued in virtue of Commonwealth Act No. 671. Involved
in cases Nos. L-2044 and L-2756 is Executive Order No. 62, which regulates rentals for houses and
lots for residential buildings. The petitioner, J. Antonio Araneta, is under prosecution in the Court of
First Instance of Manila for violation of the provisions of this Executive Order, and prays for the
issuance of the writ of prohibition to the judge and the city fiscal. Involved in case L-3055 is
Executive Order No. 192, which aims to control exports from the Philippines. In this case, Leon Ma.
Guerrero seeks a writ of mandamus to compel the Administrator of the Sugar Quota Office and the
Commissioner of Customs to permit the exportation of shoes by the petitioner. Both official refuse to
issue the required export license on the ground that the exportation of shoes from the Philippines is
forbidden by this Executive Order. Case No. L-3054 relates to Executive Order No. 225, which
appropriates funds for the operation of the Government of the Republic of the Philippines during the
period from July 1, 1949 to June 30, 1950, and for other purposes. The petitioner Eulogio Rodriguez,
Sr., as a tax-payer, an elector, and president of the Nacionalista Party, applies for a writ of
prohibition to restrain the Treasurer of the Philippines from disbursing this Executive Order. Affected
in case No. L-3056 is Executive Order No. 226, which appropriates P6,000,000 to defray the
expenses in connection with, and incidental to, the hold lug of the national elections to be held in
November, 1949. The petitioner, Antonio Barredo, as a citizen, tax-payer and voter, asks this Court
to prevent "the respondents from disbursing, spending or otherwise disposing of that amount or any
part of it."

Notwithstanding allegations in the petitions assailing the constitutionally of Act No. 671, the
petitioners do not press the point in their oral argument and memorandum. They rest their case
chiefly on the proposition that the Emergency Powers Act (Commonwealth Act No. 671) has ceased
to have any force and effect. This is the basic question we have referred to, and it is to this question
that we will presently address ourselves and devote greater attention. For the purpose of this
decision, only, the constitutionality of Act No. 671 will be taken for granted, and any dictum or
statement herein which may appear contrary to that hypothesis should be understood as having
been made merely in furtherance of the main thesis.

Act No. 671 in full is as follows:

AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A RESULT OF WAR

INVOLVING THE PHILIPPINES AND AUTHORIZING THE PRESIDENT TO PROMULGATE
RULES AND REGULATIONS TO MEET SUCH EMERGENCY.

Be it enacted by the National Assembly of the Philippines:

 SECTION 1. The existence of war between the United States and other countries of Europe
and Asia, which involves the Philippines, makes it necessary to invest the President with
extraordinary powers in order to meet the resulting emergency.

"SEC. 2. Pursuant to the provisions of Article VI, section 26, of the Constitution, the
President is hereby authorized, during the existence of the emergency, to promulgate such
rules and regulations as he may deem necessary to carry out the national policy declared in
section 1 hereof. Accordingly, he is, among other things, empowered (a) to transfer the seat
of the Government or any of its subdivisions, branches, departments, offices, agencies or
instrumentalities; (b) to reorganize the Government of the Commonwealth including the
determination of the order of precedence of the heads of the Executive Department; (c) to
create new subdivisions, branches, departments, agencies or instrumentalities of
government and to abolish any of those already existing; (d) to continue in force laws and
appropriations which would lapse or otherwise become inoperative, and to modify or
suspend the operation or application of those of an administrative character; (e) to impose
new taxes or to increase, reduce, suspend or abolish those in existence; (f) to raise funds
through the issuance of bonds or otherwise, and to authorize the expenditure of the
proceeds thereof; (g) to authorize the national, provincial, city or municipal governments to
incur in overdrafts for purposes that he may approve; (h) to declare the suspension of the
collection of credits or the payment of debts; and (i) to exercise such other powers as he may
deem to enable the Government to fulfill its responsibities and to maintain and enforce the
authority.

SEC. 3. The President of the Philippines shall as soon as practicable upon the convening of
the Congress of the Philippines report thereto all the rules and regulations promulgated by
him under the powers herein granted.

SEC. 4. This Act shall take effect upon its approval and the rules and regulations
promulgated hereunder shall be in force and effect until the Congress of the Philippines shall
otherwise provide.

Section 26 of Article VI of the Constitution provides:

In time of war or other national emergency, the Congress may by law authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to
promulgate rules and regulations to carry out a declared national policy.

Commonwealth Act No. 671 does not in term fix the duration of its effectiveness. The intention of the
Act has to be sought for in its nature, the object to be accomplish, the purpose to be subserved, and
its relation to the Constitution. The consequences of the various constructions offered will also be
resorted to as additional aid to interpretation. We test a rule by its results.

Article VI of the Constitution provides that any law passed by virtue thereof should be "for a limited
period." "Limited" has been defined to mean "restricted; bounded; prescribed; confined within
positive bounds; restrictive in duration, extent or scope." (Encyclopedia Law Dictionary, 3rd ed., 669;
Black's Law Dictionary, 3rd ed., 1120.) The words "limited period" as used in the Constitution are
beyond question intended to mean restrictive in duration. Emergency, in order to justify the
delegation of emergency powers, "must be temporary or it can not be said to be an emergency."
(First Trust Joint Stock Land Bank of Chicago vs. Adolph P. Arp, et al., 120 A. L. R., 937, 938.).

It is to be presumed that Commonwealth Act No. 671 was approved with this limitation in view. The
opposite theory would make the law repugnant to the Constitution, and is contrary to the principle
that the legislature is deemed to have full knowledge of the constitutional scope of its powers. The
assertion that new legislation is needed to repeal the act would not be in harmony with the
Constitution either. If a new and different law were necessary to terminate the delegation, the period
for the delegation, it has been correctly pointed out, would be unlimited, indefinite, negative and
uncertain; "that which was intended to meet a temporary emergency may become permanent law,"
(Peck vs. Fink, 2 Fed. [2d], 912); for Congress might not enact the repeal, and even if it would, the
repeal might not meet the approval of the President, and the Congress might not be able to override
the veto. Furthermore, this would create the anomaly that, while Congress might delegate its powers
by simple majority, it might not be able to recall them except by a two-third vote. In other words, it
would be easier for Congress to delegate its powers than to take them back. This is not right and is
not, and ought not to be, the law. Corwin, President: Office and Powers, 1948 ed., p. 160, says:

It is generally agreed that the maxim that the legislature may not delegate its powers
signifies at the very least that the legislature may not abdicate its powers: Yet how, in view of
the scope that legislative delegations take nowadays, is the line between delegation and
abdication to be maintained? Only, I urge, by rendering the delegated powers recoverable
without the consent of the delegate; . . . .

Section 4 goes far to settle the legislative intention of this phase of Act No. 671. Section 4 stipulates
that "the rules and regulations promulgated thereunder shall be in full force and effect until the
Congress of the Philippines shall otherwise provide." The silence of the law regarding the repeal of
the authority itself, in the face of the express provision for the repeal of the rules and regulations
issued in pursuance of it, a clear manifestation of the belief held by the National Assembly that there
was no necessity to provide for the former. It would be strange if having no idea about the time the
Emergency Powers Act was to be effective the National Assemble failed to make a provision for this
termination in the same way that it did for the termination of the effects and incidents of the
delegation. There would be no point in repealing or annulling the rules and regulations promulgated
under a law if the law itself was to remain in force, since, in that case, the President could not only
make new rules and regulations but he could restore the ones already annulled by the legislature.

More anomalous than the exercise of legislative function by the Executive when Congress is in the
unobstructed exercise of its authority is the fact that there would be two legislative bodies operating
over the same field, legislating concurrently and simultaneously, mutually nullifying each other's
actions. Even if the emergency powers of the President, as suggested, be suspended while
Congress was in session and be revived after each adjournment, the anomaly would not be limited.
Congress by a two-third vote could repeal executive orders promulgated by the President during
congressional recess, and the President in turn could treat in the same manner, between sessions of
Congress, laws enacted by the latter. This is not a fantastic apprehension; in two instances it
materialized. In entire good faith, and inspired only by the best interests of the country as they saw
them, a former President promulgated an executive order regulating house rentals after he had
vetoed a bill on the subject enacted by Congress, and the present Chief Executive issued an
executive order on export control after Congress had refused to approve the measure.

Quiet apart from these anomalies, there is good basis in the language of Act No. 671 for the
inference that the National Assembly restricted the life of the emergency powers of the President to
the time the Legislature was prevented from holding sessions due to enemy action or other causes
brought on by the war. Section 3 provides:

The President of the Philippines shall as soon as practicable upon the convening of the
Congress of the Philippines report thereto all the rules and regulations promulgated by him
under the powers herein granted.
The clear tenor of this provision is that there was to be only one meeting of Congress at which the
President was to give an account of his trusteeship. The section did not say each meeting, which it
could very well have said if that had been the intention. If the National Assembly did not think that
the report in section 3 was to be the first and last Congress Act No. 671 would lapsed, what reason
could there be for its failure to provide in appropriate and clear terms for the filing of subsequent
reports? Such reports, if the President was expected to continue making laws in the forms of rules,
regulations and executive orders, were as important, of as unimportant, as the initial one.

As a contemporary construction, President Quezon's statement regarding the duration of Act No.
671 is enlightening and should carry much weight, considering his part in the passage and in the
carrying out of the law. Mr. Quezon, who called the National Assembly to a special session, who
recommended the enactment of the Emergency Powers Act, if indeed he was not its author, and
who was the very President to be entrusted with its execution, stated in his autobiography, "The
Good Fight," that Act No. 671 was only "for a certain period" and "would become invalid unless
reenacted." These phrases connote automatical extinction of the law upon the conclusion of a
certain period. Together they denote that a new legislation was necessary to keep alive (not to
repeal) the law after the expiration of that period. They signify that the same law, not a different one,
had to be repassed if the grant should be prolonged.

What then was the contemplated period? President Quezon in the same paragraph of his
autobiography furnished part of the answer. He said he issued the call for a special session of the
National Assembly "when it became evident that we were completely helpless against air attack, and
that it was most unlikely the Philippine Legislature would hold its next regular session which was to
open on January 1, 1942." (Emphasis ours.) It can easily be discerned in this statement that the
conferring of enormous powers upon the President was decided upon with specific view to the
inability of the National Assembly to meet. Indeed no other factor than this inability could have
motivated the delegation of powers so vast as to amount to an abdication by the National Assembly
of its authority. The enactment and continuation of a law so destructive of the foundations of
democratic institutions could not have been conceived under any circumstance short of a complete
disruption and dislocation of the normal processes of government. Anyway, if we are to uphold the
constitutionality of the act on the basis of its duration, we must start with the premise that it fixed a
definite, limited period. As we have indicated, the period that best comports with constitutional
requirements and limitations, with the general context of the law and with what we believe to be the
main if not the sole raison d'etre for its enactment, was a period coextensive with the inability of
Congress to function, a period ending with the conventing of that body.

It is our considered opinion, and we so hold, that Commonwealth Act No. 671 became inoperative
when Congress met in regular session on May 25, 1946, and that Executive Orders Nos. 62, 192,
225 and 226 were issued without authority of law. In setting the session of Congress instead of the
first special session preceded it as the point of expiration of the Act, we think giving effect to the
purpose and intention of the National Assembly. In a special session, the Congress may "consider
general legislation or only such as he (President) may designate." (Section 9, Article VI of the
Constitution.) In a regular session, the power Congress to legislate is not circumscribed except by
the limitations imposed by the organic law.

Having arrived at this conclusion, we are relieved of the necessity of deciding the question as to
which department of government is authorized to inquire whether the contingency on which the law
is predicated still exists. The right of one or another department to declare the emergency terminated
is not in issue. As a matter of fact, we have endeavored to find the will of the National Assembly—
call that will, an exercise of the police power or the war power — and, once ascertained, to apply it.
Of course, the function of interpreting statutes in proper cases, as in this, will not be denied the
courts as their constitutional prerogative and duty. In so far as it is insinuated that the Chief
Executive has the exclusive authority to say that war not ended, and may act on the strength of his
opinion and findings in contravention of the law as the courts have construed it, no legal principle
can be found to support the proposition. There is no pretense that the President has independent or
inherent power to issue such executive orders as those under review. we take it that the
respondents, in sustaining the validity of these executive orders rely on Act No. 600, Act No. 620, or
Act No. 671 of the former Commonwealth and on no other source. To put it differently, the
President's authority in this connection is purely statutory, in no sense political or directly derived
from the Constitution.

Act No. 671, as we have stressed, ended ex proprio vigore with the opening of the regular session of
Congress on May 25, 1946. Acts Nos. 600 and 620 contain stronger if not conclusive indication that
they were self-liquidating. By express provision the rules and regulations to be eventually made in
pursuance of Acts Nos. 600 and 620, respectively approved on August 19, 1940 and June 6, 1941,
were to be good only up to the corresponding dates of adjournment of the following sessions of the
Legislature, "unless sooner amended or repealed by the National Assembly." The logical deduction
to be drawn from this provision is that in the mind of the lawmakers the idea was fixed that the Acts
themselves would lapse not latter than the rules and regulations. The design to provide for the
automatic repeal of those rules and regulations necessarily was predicated on the consciousness of
a prior or at best simultaneous repeal of their source. Were not this the case, there would arise the
curious spectacle, already painted, and easily foreseen, of the Legislature amending or repealing
rules and regulations of the President while the latter was empowered to keep or return them into
force and to issue new ones independently of the National Assembly. For the rest, the reasoning
heretofore adduced against the asserted indefinite continuance of the operation of Act No. 671
equally applies to Acts Nos. 600 and 620.

The other corollary of the opinion we have reached is that the question whether war, in law or in fact,
continues, is irrelevant. If we were to that actual hostilities between the original belligerents are still
raging, the elusion would not be altered. After the convening of Congress new legislation had to be
approved if the continuation of the emergency powers, or some of them, was desired. In the light of
the conditions surrounding the approval of the Emergency Power Act, we are of the opinion that the
"state of total emergency as a result of war" envisaged in the preamble referred to the impending
invasion and occupation of the Philippines by the enemy and the consequent total disorganization of
the Government, principally the impossibility for the National Assembly to act. The state of affairs
was one which called for immediate action and with which the National Assembly would would not
be able to cope. The war itself and its attendant chaos and calamities could not have necessitated
the delegation had the National Assembly been in a position to operate.

After all the criticism that have been made against the efficiency of the system of the separation of
powers, the fact remains that the Constitution has set up this form of government, with all its defects
and shortcomings, in preference to the commingling of powers in one man or group of men. The
Filipino people by adopting parliamentary government have given notice that they share the faith of
other democracy-loving people in this system, with all its faults, as the ideal. The point is, under this
framework of government, legislation is preserved for Congress all the time, not expecting periods of
crisis no matter how serious. Never in the history of the United States, the basic features of whose
Constitution have been copied in ours, have the specific functions of the legislative branch of
enacting laws been surrendered to another department — unless we regard as legislating the
carrying out of a legislative policy according to prescribed standards; no, not even when that
Republic was fighting a total war, or when it was engaged in a life-and-death struggle to preserve the
Union. The truth is that under our concept of constitutional government, in times of extreme perils
more than in normal circumstances "the various branches, executive, legislative, and judicial," given
the ability to act, are called upon "to the duties and discharge the responsibilities committed to them
respectively."
These observations, though beyond the issue as formulated in this decision, may, we trust, also
serve to answer the vehement plea that for the good of the Nation, the President should retain his
extraordinary powers as long asturmoil and other ills directly or indirectly traceable to the late war
harass the Philippines.

Upon the foregoing considerations, the petitions will be granted. In order to avoid any possible
disruption and interruption in the normal operation of the Government, we have deemed it best to
depart in these cases from the ordinary rule to the period for the effectivity of decisions, and to
decree, as it is hereby decreed, that this decision take effect fifteen days from the date of the entry of
final judgment provided in section 8 of Rule 53 of the Rules of Court in relation to section 2 of Rule
35. No costs will be charged.

Ozaeta, J., concurs.

Separate Opinions

MORAN, C. J., concurring:

I agree with the opinion prepared by Mr. Justice Tuason, except on the points hereunder discussed.

I believe, on the one hand, that the emergency power of the President had ceased not in May 1946,
when Congress held its regular sessions, as Mr. Justice Tuason and Mr. Justice Feria maintain, but
on June 9, 1945, when Congress convened in a special session to consider general legislation. The
emergency contemplated in Commonwealth Act No. 671, is "total emergency" which means the
state of actual war involving the Philippines, with the impending invasion and occupation of our
country by the enemy and the consequent total disorganization and paralyzation of the Government,
principally, the impossibility for the National Assembly to act. This was the only reason and
justification for the total relinquishment of legislative power by Congress in favor of the Chief
Executive under Commonwealth Act No. 671. Such relinquishment was total because the
emergency was also total. Clearly, therefore, the inability of Congress to act was the soul of the law,
and the moment such inability ceased, the total emergency also ceased and the law likewise ceased
to validly exist. On June 9, 1945, the Congress of the Philippines convened in a special session "to
adopt such measures as may be necessary to meet the existing emergency" and "for the purpose of
considering general legislation." I hold that from that date, June 9, 1945, Congress was able and
ready to act on all matters, and the emergency powers delegated to the President in Commonwealth
Act No. 671, naturally ceased to exist.

Upon the other hand, while I believe that the emergency powers had ceased in June 1945, I am not
prepared to hold that all executive orders issued thereafter under Commonwealth Act No. 671,
are per se null and void. It must be borne in mind that these executive orders had been issued in
good faith and with the best of intentions of three successive Presidents, and some of them may
have already produced extensive effects in the life of the nation. We have, for instance, Executive
Order No. 73, issued on November 12, 1945, appropriating the sum of P6,750,000 for public works;
Executive Order No. 86, issued on January 7, 1946, amending a previous order regarding the
organization of the Supreme Court; Executive Order No. 89, issued on January 1, 1946,
reorganizing the Courts of First Instance; Executive Order No. 184, issued on November 19, 1948,
controlling rice and palay to combat hunger; and other executive orders appropriating funds for other
purposes. The consequences of a blanket nullification of these executive orders will be
unquestionably serious and harmful. And I hold that before nullifying them, other important
circumstances should be inquired into, as for instance, whether or not they have been ratified by the
Congress expressly or impliedly, whether their purposes have already been accomplished entirely or
partially, and in last instance, to what extent; acquiescence of litigants; de facto officers; acts and
contrast of parties acting in good faith; etc. It is my opinion that each executive order must be viewed
in the lights of its peculiar circumstances, and, if necessary and possible, before nullifying it,
precautionary measures should be taken to avoid harm to public interest and innocent parties.

To illustrate the foregoing proposition of individual consideration of specific cases, shall go into a
brief discussion of the executive orders involved in the cases now before this Court. With regard to
Executive No. 225 on general appropriation, I hold that the court should not declare it null and void
till Congress may have an opportunity to provide a substitute measure for the sustenance of
government. This view is predicated upon the principle of absolute necessity. Till Congress may
pass a valid appropriation act our government cannot survive without the executive order in
question. It would be absurd for this court to declare the cessation of an emergency, and by that
same declaration permit, if not abet, the formation of another emergency which would be inevitable
if, by reason of lack of appropriation, government shall cease to function. In such cases, when
apparently the provisions of our laws and Constitution seem inadequate, the courts must go deeper
even than the very Magna Carta itself and find solution in the basic principles of preservation of
government and of national survival, which in the last analysis, are the very reasons for the
existence of a Constitution. In such extreme cases, as can come from the present situation, it would
be the height of judicial imprecision to preserve the form of the constitution, and at the same time
permit the disruption and cessation of the government which that same constitution so intricately
designed and firmly established. Thus, in the remedy of an evil, we shall cause a far greater one.

It may be argued that the course of action I am taking is founded upon fear, fear that Congress will
again fail to act on the matter of appropriation, and it may be asserted that the members of the
Congress are presumed to be as patriotic as the members of this Court, if not more, and that,
therefore, we may rest assured that they will not fail to fulfill their duty. I admit this to be true, and
accordingly, I ask what is then the hurry and necessity for nullifying the executive order on
appropriation which we are sure will soon be substituted by a valid appropriation act? Why not defer
judgment and wait until the special session of Congress so that it may fulfill its duty as it clearly sees
it? I can find no reason against this suggestion except, perhaps, a desire to assert judicial
supremacy in a case where judicial statemanship is more necessary.

It is also true that the possibility that Congress will again fail to provide funds for the operation of the
government is a remote possibility. But there is no harm in providing for all the possibilities, both
near and remote. If that remote possibility never comes, well and good, nothing is lost and the
situation is saved. However, if the remote possibility does come, and it is not impossible, and we had
already nullified the executive order on appropriation, how will the government function and survive?
On the other hand, if we defer judgment upon the nullity of such executive order, and that remote
possibility does come, we still have the saving lifeline of that executive order which may, perhaps, be
tolerated to save the country from chaos, until a more proper and adequate remedy can be secured.

With regard to the executive order appropriating funds for the conduct of the coming elections, I
uphold the same view as in the foregoing, namely, not in abdicating the power of this court to pass
upon the validity of an executive order, but to defer judgment upon such an order until the legislature
may provide a substitute measure. The reason for this is, likewise, absolute necessity. Without such
Executive Order we may have not elections in November. Elections are the very essence of popular
government for the establishment and preservation of which, our Constitution has been consecrated.
To permit the unwarranted abolition or even suspension of elections, will surely result either in the
denial of popular representation or in the perpetuation in power of those already in office. Either
result is revolting to our system of government. Briefly stated, I hold that this court should neither
ratify nor nullify this executive order, but should defer judgment in the same manner and for the
same reasons stated above in connection with the executive order on appropriations. The Court, in
these cases, is confronted not only with bare issues of law, but with actual anomalous situations
pregnant with possible dangers to the nation, and it is the duty of the Court, as a dispenser of justice,
to find a solution that is both legal and realistic.

With reference to Executive Order No. 62, which regulates rentals for houses, and Executive Order
No. 192, which aims to control exports from the Philippines, I agree that they must be held null and
void upon the reason stated by Mr. Justice Tuason and Mr. Justice Feria and also upon those stated
by Mr. Justice Montemayor and Mr. Justice Alex Reyes.

My vote, therefore, is that the petitions must be granted in Araneta vs. Dinglasan, G. R. No. L-
2044; Araneta vs. Angeles, G. R. No. L-2756 and Guerrero vs. Commissioner of Customs, G. R. No.
L-3055, and that judgment must be deferred in Rodriguez vs. El Tesorero de Filipinas, G. R. No. L-
3054 and Barredo vs. The Commission on Election, G. R. No. L-3056.

PARAS, J., concurring:

I concur in the opinion of Mr. Justice Tuason. I wish to add, however the following observations:
Even assuming, for the sake of argument, that the legislative intent is to make Commonwealth Act
No. 671, effective during the existence of the emergency contemplated therein and that it is within
the exclusive province of the political departments to determine whether said emergency continues
or has ceased to exist, I am of the conviction that, in view of the formal and unmistakable
declarations of both the Congress and the President, said Act No. 671, should be held as having lost
its force and effect.

It is important to remember that the kind of emergency expressly spoken of in the Act is a total
emergency resulting from war and that the Act was passed at a time (December 16, 1941) when
there was factually a state of war involving the Philippines.

In section 1 of Republic Act No. 342, approved on July 26, 1948, it was categorically declared by the
Congress that "since liberation conditions have gradually returned to normal, but not so with regard
to those who have suffered the ravages of war and who have not received any relief for the loss and
destruction resulting therefrom," and that "the emergency created by the last war as regards these
was sufferers being still existent, it is the declared policy of the state that as to them the debt
moratorium should be continued in force in a modified form." The President, in turn, in his speech
delivered on July 4, 1949, plainly proclaimed that "what emergencies it (the Republic) faces today
are incidental passing pains artificially created by seasonal partisanship, very common among
democracies but will disappear with the rains that follow the thunderclaps not later than November 8
of this year."

We thus have a formal declaration on the part of the Congress that the emergency created by the
last war exists as regards only those debtors whose war damage claims have not been settled by
the United States Philippine War Damage Commission (section 2, Republic Act No. 342), patently
meaning that said emergency is, at most, a partial emergency. It is needless to point out that only a
small portion of the Philippine population are debtors and not all of those who are debtors are war
damage claimants.
We also have the solemn declaration on the part of the President that the emergencies faced by the
Republic are incidental emergencies artificially created by seasonal partisanship, clearly meaning
that such emergencies not only are not total but are not the result of war.

If the emergency is, as admitted by the Congress, not total and, as admitted by the President, not
the result of the war, Commonwealth Act No. 671 has lost its basis and cannot legally give rise to the
executive orders herein involved. Indeed, it is not pretended that said orders are intended to meet
any emergency growing out of the last war. Lack of a budget, an appropriation for the elections, or
an import control law, has been brought about by the inaction of the Congress unaffected by the last
war, and such emergency, if it may be called so, is not of the kind contemplated in Commonwealth
Act No. 671.

The government has for four years since liberation been normally functioning; election had been
regularly held; a national census had been taken; Congress had held regular and special session;
"people travel freely most everywhere and more quickly, by land, sea and air, to an extent that was
not hitherto enjoyed," and "business is more brisk than ever, goods are plentiful, our people even in
the remotest communities and barrios of the country are better dressed, their diet has been
immensely improved, and they look more healthy than they ever did" (President's fifth monthly radio
chat, March 15, 1949); and the sporadic depredations of the outlaws in isolated areas of the country
are but the last paroxysms of a dying movement (President's State-of-the-Nation Message, January
24, 1949), — all these certainly negative the existence of any real (much less total) emergency.

That the Congress had heretofore recognized the cessation of the emergency is conclusively
established by the fact that it had assumed the task of directly enacting, during its past sessions,
measures dealing with all the matters covered by the specific legislative powers conceded to the
President in Commonwealth Act No. 671. This is in line with the fundamental reason for the approval
of said Act, as may be gathered from the following statement of President Quezon: "When it became
evident that we were completely helpless against air attack and that it was most unlikely the
Philippine Legislature would hold its next regular session which was to open on January 1, 1942, the
National Assembly passed into history approving a resolution which reaffirmed the abiding faith of
the Filipino people in, and their loyalty to, the United States. The assembly also enacted a law
granting the President of the Philippines all the powers that under the Philippine Constitution may be
delegated to him in time of war." (The Good Fight, pp. 204-205.) When President Quezon said "in
time of war", he undoubtedly meant factual war, a situation that existed at the time of the passage of
Commonwealth Act No. 671.

Indeed, the dissenters admit that any delegated power directly exercised by the principal is
considered withdrawn from the agent. A cursory examination of Commonwealth Act No. 671 will
show that the legislative function therein specified had been discharged by the Congress. The
following illustrates the powers delegated in the Act and the measures enacted by the Congress
itself covering each:

Section 2 of Commonwealth Act No. 671 —

(a) to transfer the seat of the Government or any of its subdivisions, branches, departments, offices,
agencies or instrumentalities:

Republic Act No. 333 —

An Act to establish the Capital of the Philippines and the permanent seat of the National
Government, to create a capital city planning commission, to appropriate funds for the
acquisition of private estates within the boundary limits of said city, and to authorize the
 issuance of bonds of the National Government for the acquisition of private estates, for the
subdivision thereof, and for the construction of streets, bridges, waterworks, sewerage and
other municipal improvements in the capital City. (Approved, July 17, 1948.)

(b) to reorganize the Government of the Commonwealth including the determination of the order of
precedence of the heads of the Executive Departments:

Republic Act No. 51 —

Act authorizing the President of the Philippines to reorganize within one year the different
Executive departments, bureaus, offices, agencies and their instrumentalities of the
government, including the corporations owned or controlled by it. (Approved, October 4,
1946.)

(c) to create new subdivisions, branches, departments, offices, agencies or instrumentalities of

government and to abolish any of those already existing:

Commonwealth Act No. 732 —

An Act to create the Department of Foreign Affairs and to authorize the President of the
Philippines to organize said department as well as the foreign service of the Republic of the
Philippines. (Approved, July 3, 1946.)

(d) to continue in force laws and appropriations which would lapse or otherwise become inoperative,
and to modify or suspend the operation or application of those of an administrative character:

Commonwealth Act No. 709 —

An Act appropriating the sum of five million pesos to enable the national housing commission
to resume its functions" (Approved, November 1, 1945.)

Commonwealth Act No. 710 —

An Act to appropriate funds to continue the payment of Retirement gratuities or pensions

under existing laws. (Approved, November 1, 1945.)

(e) to impose new taxes or to increase, reduce, suspend, or abolish those in existence:

Republic Act No. 215 —

An Act to amend Section One of the Republic Act numbered eighty-one providing a new time
limit for the waiver of, and/or extension of the period, within which to perform, accomplish or
comply with, any term, condition, or stipulation required of locators, holders, lessees,
operators of mining claims or concessions, and of water rights and timber concessions with
the mining industry and the condonation of mining, specific and real estate taxes, under
certain terms and conditions. (Approved, June 1, 1948.)

Ley No. 321 de la Republica —

 Ley que eleva los derechos de transferencia de ganado mayor, enmendado al efecto el
articulo quinientos veintiochos del Codigo Administrativo Revisado. (Apobada, Junio 9,
1948.)

(f) to raise funds through the issuance of bonds or otherwise, and to authorize the expenditure of
proceeds thereof:

Republic Act No. 265 —

An Act establishing the Central Bank of the Philippines . . . . (Section 87 [e] No. 7.)
Approved, June 15, 1948.)

Republic Act No. 266 —

An Act appropriating such sums as may from time to time be released by the Central Bank
representing excess monetary reserves, and authorizing the President of the Philippines to
issue bonds, certificates or other evidences of indebtedness covering such amounts.
(Approved, June 15, 1948.)

Republic Act No. 85 —

An Act creating the Rehabilitation Finance Corporation. (Section 2 [f].) (Approved, Oct. 29,
1946.)

(g) to authorize the National, provincial, city or municipal government to incur in overdrafts for the
purposes that he may approve:

Various Appropriation Acts.

(h) to declare the suspension of the collection of credits or the payments of debts:

Republic Act No. 342, approved, July 26, 1948.

(i) to exercise such other powers as he may deem necessary to enable the Government to fulfill its
responsibilities and to maintain and enforce its authority.

The powers included in this subdivision (i) are of course covered by hundreds of other acts approved
by the Congress which, it cannot be denied, all tend to "enable the Government to fulfill its
responsibilities and to maintain and enforce its authority." Moreover, the withdrawal of the greater
and more important powers may be presumed to have carried the accessory and less important
powers.

There is no merit in the contention that Commonwealth Act No. 671 was enacted by virtue of the war
powers of the Congress. As the Act itself expressly states, its basis is section 26 of Article VI of the
Constitution which merely authorizes delegation of legislative powers to the President in times of war
or other national emergency. The phrase "in times of war or other national emergency" is solely
indicative or descriptive of the occasions during which the delegation may be extended and does not
classify the act of delegating legislative functions as a war power. It must be borne in mind that said
section 26 is peculiar to our Constitution, with the result that the decisions of the Supreme Court of
the United States cited on behalf of the respondents, expounding the theory that the exercise by the
President of his war powers granted by the Congress cannot be interfered with by the courts, are not
controlling. Particularly, the case of Ludecke vs. Watkins, 92 L. ed., 1883, in which the opinion of the
United States Supreme Court was written by Mr. Justice Frankfurter, cannot apply, for the further
reason that it merely involved the power of deportation which, even in our jurisdiction, is recognized,
it being the rule here that the courts cannot control the right of the Chief Executive to determine the
existence or sufficiency of the facts justifying an order of deportation. Upon the other hand, the war
power of the President is separately covered by section 10, paragraph (2), of Article VII, and that of
the Congress by section 25.

Article VI, of the Constitution, which are not invoked for the passage of Commonwealth Act No. 671.

MONTEMAYOR, J., concurring and dissenting:.

The majority opinion holds that Executive Order No. 62 dated June 21, 1947; Executive Order No.
192 dated December 24, 1948; and Executive Orders Nos. 225 and 226 both dated June 15, 1949
were issued without authority of law and therefore illegal and of no legal force and effect. I concur
only in the result. Ordinarily, such concurrence without comment or explanation would be sufficient
and satisfactory. However, in view of the radical difference between the reasons had and given by
the majority in arriving at the result and those entertained by me, and considering the transcendental
importance of these cases, not only because of the vast amounts of public funds and the rights of
citizens affected but also of the principles of law involved, and the fact that not only the force and the
effect of a law (Commonwealth Act No. 671) but also the legality and the force and effect of
numerous executive orders issued by several Presidents during a period of about three years,
affecting as they do not only citizens, their interest and their properties but also the different
departments and offices of the Government, I deem it my duty to set forth my views and the reasons
in support of the same.

There is a claim made about lack of personality of some of the parties-petitioners particularly, the
petitioners in G. R. Nos. L-3054 and L-3056. Much could be said for and against that claim, but I am
willing to brush aside all defenses and technicalities on this point in order to be able to consider and
decide the more important question of the legality of the executive orders involved and whether or
not Commonwealth Act No. 671 is still in force.

The aforementioned executive orders were issued on the straight of and by virtue of Commonwealth
Act No. 671. The majority holds that Commonwealth Act No. 671 ceased to have any force and
effect on May 25, 1946 when Congress first convened in regular session after liberation. In This, I
disagree for I believe and hold that Commonwealth Act No. 671 is still in force and in effect. But
despite this view, I am not of the opinion that the executive orders under consideration were issued
without authority.

Starting with Executive Order No. 62, we find that it deals with and regulates houses and lot rentals.
If the legislature had not already acted and legislated on this matter since the promulgation of
Commonwealth Act No. 671, this would be a proper field for Presidential action. However, the
legislature had already promulgated Commonwealth Act No. 689 and Republic Act No. 66,
regulating house rentals and, as late as the month of May, 1947, Congress passed House Bill No.
978 further amending Commonwealth Act No. 689. In other words, in thus acting, the Legislature
had already shown its readiness and ability to legislate on this matter, and had withdrawn it from the
realm of presidential legislation or regulation under the powers delegated by Commonwealth Act No.
671. Not only this, but in issuing rules and regulations in the form of executive orders under his
delegated powers, the Chief Executive merely acts as an agent of the legislature, his principal which
made the delegation. As such agent, he cannot go against the policy and expressed desire of his
principal.
There are radical differences between Commonwealth Act No. 689, Republic Act No. 66, and House
Bill No. 978 on one side and Executive Order No. 62 on the other. That was the reason why
President Roxas vetoed House Bill No. 978, believing in good faith that it would not solve and
remedy the problem of house rentals as explained by him in his communication to the House of
Representatives of June 21, 1947, setting forth his views on the bill. The President may not and
could not substitute his opinion however excellent or superior for that of the legislature on matters of
legislation when Congress has already acted and expressed its opinion and desire on the matter.

With respect to Executive Order No. 192, it will be remembered that Congress passed
Commonwealth Act No. 728, approved on July 2, 1946, authorizing the President to regulate, curtail,
control, and prohibit the exportation of certain products, merchandise and materials. Under said
authority the President issued Executive Order No. 3 dated July 10, 1946, later amending section 2
of said Executive Order by issuing Executive Order No. 23 dated November 1, 1946, regulating the
exportation of certain products, materials and merchandise. The important thing to consider is that
section 4 of Commonwealth Act No. 728 provided that the authority it granted to the President shall
terminate on December 31, 1948, that is to say, that after said date the Executive could no longer
validly regulate exports under said law. The President, however, overlooked or ignored said
injunction and invoking his emergency powers under Commonwealth Act No. 671, promulgated
Executive Order No. 192 regulating exports, to take effect on January 1, 1949. What was said with
regard to Executive Order No. 62 is applicable to the lack of authority of the Executive to promulgate
Executive Order No. 192, namely, that on this matter of export control, the legislature had already
withdrawn it from the jurisdiction of the Executive under his emergency powers after the enactment
of Commonwealth Act No. 728. Any Presidential power or authority on the subject of export control
was derived from said Act. Not only this, but when in section 4 of Commonwealth Act No. 728 the
legislature terminated the authority given the President to regulate and control exports on December
31, 1948 and failed or refused to renew said authority, the inference or conclusion and that after said
date Congress deemed any presidential regulation on exports unnecessary and inadvisable.
Therefore, in promulgating Executive Order No. 192 the Chief Executive acted not only without
legislative authority but also against the wishes and policy of Congress. This he may not validly do.

With respect to Executive Orders Nos. 225 and 226, the considerations made with regard to
Executive Orders Nos. 62 and 192 are equally applicable. By previously enacting necessary
legislation on the yearly Government appropriation and on the appropriation of funds for the
expenses incurred in national elections, Congress has shown its readiness and ability to cope with
the financial problems of the Government on this point. Republic Act No. 80, approved October 22,
1946, appropriating funds for the operation of National Government from July 1, 1946 to June 30,
1947; Republic Act No. 156 appropriating funds for the fiscal year 1947-48 and Republic Act No.
320, the appropriation law for the fiscal year 1948-49 show that Congress was in a position and able
to provide for the yearly expenditures of the Government. And Republic Act No. 73 appropriating
P1,000,000 to defray election expenses on March 11, 1947; Republic Act No. 147 appropriating
P1,000,000 to defray expenses for the election of provincial city and municipal officials and eight
senators held on November 11, 1947, and Republic Act No. 235 appropriating P100,000 for the
special elections held on March 23, 1948, to fill vacancies in Representative District No. 4 of Iloilo
and No. 1 of Leyte, demonstrated the ability of the Congress to appropriate money for election
purposes. By so doing Congress had tacitly and impliedly withdrawn this portion of the field where
the President may under his emergency power legislate or promulgate rules and regulations.

In this connection, it may be stated that in my opinion, the theory underlying the delegation of
emergency powers to the under Commonwealth Act No. 671 and the similar laws is that the
legislature because of the emergency resulting from the war, would be unable to meet in order to
legislate or although able to meet, because of the emergency, the ordinary process of legislation
would be too slow and inadequate and could not cope with the emergency. So, as a remedy, the
power and authority of legislation are vested temporarily in the hands of one man, the Chief
Executive. But as regards Executive Orders Nos. 225 and 226, the legislature has demonstrated that
not only it could meet but also it could legislate on this point of appropriations by approving general
appropriation laws for the different fiscal years since liberation as well as appropriations for the
necessary funds for the different national and provincial elections. Consequently, there no longer
was any necessity for Presidential legislation in this regard. Moreover, and this is not unimportant,
the failure of the Legislature to pass an appropriation law for the fiscal year 1949-50 and a law
appropriating funds for the elections in November, 1949 was not due to any emergency resulting
from the war, contemplated by Commonwealth Act No. 671, but rather and possibly due to lack of
time and because of the rather abrupt and adjourning of the last session of the Legislature last May.

As already stated, the majority holds that Act No. 671 ceased to have force and effect on May 25,
1946. The other view is that it is still in force. To me this is the main and the more important issue
involved in these cases. In fact the argument of the parties centered on this point. The importance of
this issue may readily be appreciated when it is realized that on its determination is based, not only
the validity or nullity (according to the theory of the majority opinion), of the four Executive Orders
now under consideration, but also of all the Executive Orders promulgated under authority of
Commonwealth Act No. 671 after May 25, 1946, up to the present time. Its determination will also
decide whether or not the President may still exercise his emergency powers in the future on matters
and subjects not heretofore withdrawn by the Legislature. Because of my disagreement with the
majority on this point, I deem it necessary to explain and elaborate on my reasons for my
disagreement.

For purposes of reference and to facilitate the same, I am reproducing Commonwealth Act No. 671
in full as well as section 26, Article VI of the Constitution on which said Act is based:

AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A RESULT OF WAR

INVOLVING THE PHILIPPINES AND AUTHORIZING THE PRESIDENT TO PROMULGATE
RULES AND REGULATIONS TO MEET SUCH EMERGENCY.

Be it enacted by the National Assembly of the Philippines:

SECTION 1. The existence of war between the United States and other countries of Europe
and Asia, which involves the Philippines, makes it necessary to invest the President with
extraordinary powers in order to meet the resulting emergency.

SEC. 2. Pursuant to the provisions of Article VI, section 26, of the Constitution, the President
is hereby authorize, during the existence of the emergency, to promulgate such rules and
regulations as he may deem necessary to carry out the national policy declared in section 1
hereof. Accordingly, he is, among other things, empowered (a) to transfer the seat of the
Government or any of its subdivisions, branches, departments, offices, agencies or
instrumentalities; (b) to reorganize the Government of the Commonwealth including the
determination of the order of precedence of the heads of the heads of Executive
Departments; (c) to create new subdivisions, branches, departments, offices, agencies or
instrumentalities of government and to abolish any of those already existing; (d) to continue
in force laws and appropriations which would lapse or otherwise become inoperative, and to
modify or suspend the operation or application of those of an administrative character; (e) to
impose new taxes to increase, reduce, suspend or abolish those in existence; (f) to raise
funds through the issuance of bonds or otherwise, and to authorize the expenditure of the
proceeds thereof; (g) to authorize the national, provincial, city or municipal governments to
incur in overdrafts for purposes that he may approve; (h) to declare the suspension of the
collection of credits or the payments of debts; and (i) to exercise such other powers as he
 may deem necessary to enable the Government to fulfill its responsibilities and to maintain
and enforce the authority.

SEC. 3. The President of the Philippines shall as soon as practicable upon the convening of
the Congress of the Philippines report thereto all the rules and regulations promulgated by
him under the powers herein granted.

SEC. 4. This Act shall take effect upon its approval and the rules and regulations
promulgated hereunder shall be in force and effect until the Congress of the Philippines shall
otherwise provide.

In time of war or other national emergency, the Congress may by law authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to
promulgate rules and regulations to carry our a declared national policy. (Section 26, Article
VI, Constitution.)

I fully agree with the majority when in its opinion it says:

Commonwealth Act No. 671 does not in term fix the duration of its effectiveness. The
intention of the Act has to be sought for in its nature, the object to be accomplished, the
purpose to be sub-served, and its relation to the Constitution. (Page 5, majority opinion.)

The main thesis of the majority is that the only reason for the delegation of legislative powers to the
Chief Executive under the Constitution, such as was done under Commonwealth Act No. 671 was
because due to the emergency resulting from the war, the Legislature could not meet to enact
legislation; that the moment of Legislature could convene there would no longer be any reason for
the exercise by the President of emergency powers delegated to him; that if, when the Legislature
could meet and actually is in session, the President is allowed to exercise his delegated legislative
powers, there would be the serious anomaly of two legislative bodies acting at the same time,
namely, the Legislature and the Executive, "mutually nullifying each other's action" ; that the limited
period fixed in Commonwealth Act No. 671 for its life and effectiveness as required by the
Constitution is the interval from the passage of said Act and the moment that Congress could
convene, not in special session where its power of legislation is limited by the Chief Executive in his
call for special session, but in regular session where it could be free to enact general legislation; and
that unless this automatic ending or cessation of Act No. 671 is so held, there would be need of
another Act or legislation by the Congress to repeal Act No. 671 in which case, the Chief Executive
may by his veto power effectively block any effort in this direction.

I beg to differ with the foregoing thesis. I believe that, as I already had occasion to state though
incidentally, the real reason for the delegation of legislative powers to the Chief Executive is not only
because the Legislature is unable to meet due to a national emergency but also because although it
could and does actually meet, whether in regular or special session, it is not in a position and able to
cope with the problems brought about by and arising from the emergency, problems which require
urgent and immediate action. Certainly, one man can act more quickly and expeditiously than about
one hundred members of the Legislature, especially when they are divided into legislative chambers.
That is why in times of emergency, much as we in democratic countries dislike the system or idea of
dictatorship, we hear of food dictator, fuel dictator, transportation dictator, civilian evacuation
dictator, etc., where the functions which ordinarily belong to a council or board or to a legislative
body, are entrusted under certain limitations to one single official or individual.

Supposing that during a national emergency and while the Legislature is in session, the legislators
woke up one morning to find that there was extreme scarcity of imported food, fuel, building
materials, equipment required in agriculture and industry, etc., because of a monopoly, hoarding,
injurious speculation, manipulation, private controls and profiteering, or that there were wide-spread
lockouts and strikes paralyzing transportation, commerce and industry, or rampant espionage or
sabotage endangering the very life and security of the nation. How much time would it take the
legislature to enact the necessary legislation in order to cope with the situation and pass the
necessary emergency measures?

We are familiar with the practice and routine of enacting laws. A bill is introduced in the Legislature;
it is referred to the corresponding committee, it is studied by said committee, which in some cases
holds public hearings; the committee discusses the bill and sometimes introduces amendments; if
the bill is not killed in the committee or shelved, it is submitted to the chamber for study, discussion
and possible amendment by all the members; it is finally voted and if approved, it is sent to the other
house where it undergoes the same process; and if it is finally approved by both houses of
Congress, it is submitted to the Chief Executive for his study and approval or veto. All these may
consume weeks or months as a result of which, ordinarily, many bills finally approved by the
Congress could be sent to the President for approval or veto only after adjournment of the legislative
session. And we should not overlook the fact that in some cases for lack of time of due to
disagreement among the legislators or between the two houses of Congress, important pieces of
legislations like the annual appropriation law for the fiscal year 1949-50, appropriation of funds for
the election to be held in November, 1949, contained in Executive Orders Nos. 225 and 226,
involved in the present cases, and the proposed amendment to the Election Code etc. have not
been passed by Congress in its last session ending last May, 1949, which session lasted one
hundred days. If we were to rely on the ordinary process of legislation to meet a national emergency,
by the time the necessary and needed law is passed, the situation sought to be remedied, or the
problem sought to be solved may have become disastrous or ended in calamity or gone beyond
legislation or any remedy. It would be too late. It would be like locking the stable door after the horse
had been stolen.

Now, for some retrospect. The Philippine National Assembly delegated its legislative powers
because of the existence of a state of national emergency as early as the year 1939. During its
second special session of that year, it promulgated the following laws:

(a) Commonwealth Act No. 494, authorizing the President of the Philippines to suspend until
the time of the adjournment of the next regular session of the National Assembly, either
wholly or partially and under such conditions as he may deem proper, the operation of
Commonwealth Act No. 444, commonly known as the Eight Hour Labor Law;

(b) Commonwealth Act No. 496, authorizing the President to take over, for use or operation
by the Government, any public service or enterprise and to pay just compensation in the
manner to be determined by him and to prescribe and promulgate regulations he may deem
essential to carry out the purposes of the Act;

(c) Commonwealth Act No. 498 declaring a state of national emergency due to a state of war
among several nations and as a measure to prevent scarcity, monopolization, hoarding,
injurious speculations, profiteering, etc. affecting the supply, distribution movement of foods,
clothing, fuel, building materials, agricultural equiptments etc. authorized the President to
purchase any of the articles or commodities available for storage, for re-sale or distribution,
to fix the maximum selling price of said articles or commodities and to promulgated such
rules and regulations as he may deem necessary; and

(d) Commonwealth Act No. 500 authorizing the President in view of the existence of a state
of national emergency to reduce the expenditures of the executive departments of the
 Government by the suspension or abandonment of service, activities, or operations of no
immediate importance.

At the time, September, 1939 the second world war was only in Europe, quite far from the
Philippines and had just begun. There was then no likelihood of the Philippines being involved in the
war until more than two years later, in December, 1941. The National Assembly was then free to
meet either in regular or special session to enact legislation to meet the emergency. In fact, it met in
regular session in January, 1941 lasting 100 days and in January, 1941 for another regular session
of 100 days, excluding the several special session held during those two years. And yet the
Assembly delegated legislative powers to the President under section 26, Article II of the
Constitution. This is clear proof that, contrary to the theory of the majority opinion, the Legislature
delegated legislative powers to the President even when it could meet and it actually met several
times.

After passing the Acts just mentioned delegating legislative powers to the President, the Assembly in
its fourthly special session on August 19, 1940 repeated and reiterated this practice and policy by
passing Commonwealth Act No. 600 delegating additional and more extensive powers to the
President in spite of the fact that the war was still far away in Europe and there was no danger or
prospect of involving the Philippines, and the Legislature was still free to meet as in fact it met again
in regular session in January, 1941. During its regular session begun that month and year, instead of
stopping or ending the legislative powers delegated to the President, because according to the
theory of the majority opinion, the Legislature was able to meet, the Assembly allowed them to
continue by passing Commonwealth Act No. 620 which merely amended section 1 of
Commonwealth Act No. 600. I repeat that all this, far from supporting the view of the majority that the
Legislature delegated legislative powers to the President only because it could not meet, fairly and
squarely refutes said view.

Now, let us consider the theory of the majority that it would be a great anomaly to have two
legislative bodies, the Legislature and the President to be acting at the same time, each nullifying the
acts of the other. I fail to see the suggested anomaly. In fact, under the view and interpretation given
by the majority of the delegation of contemplated the simultaneous functioning of the Legislature and
the President, both exercising legislative powers. And it is a fact that there were several instances of
the legislature and the President both validly and simultaneously exercising legislative powers.

Under section 2 of Commonwealth Act No. 496 already referred to, approved on September 30,
1939, the power delegated to the President to prescribe rules and regulations he may deem
essential to carry out the purposes of the Act, namely, the taking over of and operation by the
Government of any public service or enterprise and to pay for the same, was to last until the date of
the adjournment of the next regular session of the National Assembly. This means that, during the
regular session of the Assembly which begun in January, 1940 and lasted 100 days, the President
could exercise the emergency powers delegated to him. Again, under Commonwealth Acts Nos. 600
and 620 the President could and indeed he exercised his emergency powers during the regular
session of the Assembly which began in January, 1941, when President Quezon issued at least nine
Executive Orders numbered 321, 333, 335, 337, 339, 340, 342, 344 and 345.

The same thing obtains under Commonwealth Act 671. Since under the view of the majority the
emergency power of the President granted him in Commonwealth Act No. 671 ended only on May
25, 1946, then the extensive legislative powers delegated to the President under that Act could be
exercised and in fact they were exercised during the five special session of Congress in the year
1945, which lasted a total of 84 days. During those special session of 1945, President Osmeña
issued several Executive Orders in the exercise of his emergency powers.
Is there further proof needed to show that the suggested and feared anomaly and impropriety of the
Legislature and the Executive both exercising legislative functions simultaneously, is more fancied
than real? The situation was contemplated and expressly intended by the Legislature itself, evidently
believing that said condition or state of affairs was neither anomalous nor improper. There is to my
mind really no incompatibility. At such a time and during the period of their simultaneous functioning,
the Legislature may perform its ordinary legislative duties taking its time to study, consider, amend
and pass bills, reserving to the President matters requiring and demanding immediate action.

After all, it is for the Legislature to say whether it wants the President to exercise his emergency
powers at the same time that it is in session. It may validly and properly stipulate in its grant of
emergency powers that they be exercised when the Legislature is not in session. In fact, in one
instance, in Commonwealth Act No. 500, section 2, the Notional Assembly expressly provided "that
the authority herein given shall be exercised only when the National Assembly is not in session."
When in its other acts of delegation, like Commonwealth Act 671, the Legislature not only fails to
stipulate this condition, but on the contrary, contemplates Presidential exercise of legislative powers
simultaneously with the Legislature, it is to be presumed that the Legislature intended it and saw
nothing improper or anomalous in it, and it is not for the Court to pass upon the supposed
impropriety or anomaly.

As to the possibility of the Chief Executive validly and successfully nullifying the acts of the
Legislature, to me that is quite remote, if not impossible. As already stated at the beginning of this
opinion, the Chief Executive acting as an agent of the Legislative under his emergency powers, may
not go against the wishes and policies of his principal. He can only carry out its wishes and policies,
and where his acts and orders run counter to those of the Legislature, or operate on a field already
withdrawn because the Legislature had already acted therein, his acts or Executive Orders must
give way and will be declared void and of no effect, by the Courts, as we are doing with the
Executive Orders involved in these cases.

With respect to the claim of the majority opinion that unless the emergency powers were made to
end at the time the President made his report to Congress when it convened, it would be necessary
to enact new legislation to repeal the act of delegation, in which case the period for the delegation
would be unlimited, indefinite, and uncertain, contrary to the constitutional provision, I may say that
the President was authorized by Act 671 to exercise emergency powers "during the existence of the
emergency," and not a day longer. To me that is a limited period in contemplation of the Constitution.
There would be no need for a new law to repeal the Act of delegation, for said Act is self-liquidating.
The moment the emergency ceases, the law itself automatically ceases to have force and effect, and
the Presidential emergency powers also end with it.

Under my view, had the invasion of the Philippines by the Japanese forces, which we feared and
expected in December, 1941 failed to materialize either because the invasion was repelled or
because the Japanese high command at the last moment decided to by-pass the Philippines and
divert his forces further south to invade, say Australia, or if the Pacific war had ended as we all or
most of us then expected it to end sooner within weeks or months after its commencement and that
the emergency resulting therefrom had also ceased soon thereafter, Commonwealth Act No. 671
would have automatically ceased to have force and effect right in the year 1942 without any
affirmative act or law of the Legislature. There would be no point or reason for the President to
continue exercising emergency powers when there no longer was any emergency. But under the
view of the majority, emergency or no emergency even if Congress could meet in special session to
enact general legislation, the country must continue to be ruled by the Presidential decree until the
next regular session of Congress which may not come till may months later. In my opinion this is not
logical. To me the real and only reason and test for the continuance of the exercise of emergency
powers is the continued existence of the emergency, not the inability of the Congress to meet in
regular session.

The majority, and the parties who initiated these proceedings in court fear that the President may
promulgate rules and regulations contrary in purpose and effect to legislation enacted by the
Legislature; that he may reenact his rules and regulations after being repealed by the legislature,
and that he may even veto a bill passed by Congress repealing the Act of delegation and ending his
emergency powers. It is a fear not well founded. It runs counter to the presumption that the Chief
Executive like any other public official would perform his functions and conduct himself in every
respect for the good and welfare of the people and in accordance with the Constitution. It is fear
based on the presumption that the Legislature and the Chief Executive are at loggerheads, working
at cross purposes and that the President though acting as a mere agent of his principal, the
legislature, would brazenly repudiate his principal and even challenge its authority, and that the
Chief Executive is so much in love with his emergency powers that he would perpetuate them by
going as far as vetoing an act of Congress ending said emergency powers. Let it be said to the
credit of and in justice to the different Chief Executives who have wielded these emergency powers,
President Quezon, Osmeña, Roxas and the present incumbent President Quirino, that no accusing
finger has ever been pointed at them, accusing or even insinuating that they have abused their
emergency powers or exercised them for any purpose other than the welfare of the country, or that
they had maliciously acted contrary to the wishes of the Legislatures. Even after liberation there has
been no claim not even from the Legislatures itself, to the knowledge of this Court, at least to that of
the undersigned, that any Chief Executive exercised his delegated powers, knowing that they had
ended or had abused the same.

There is no charge or insinuation that any of the Executive Orders which we are now holding to be
invalid were issued from the ulterior motives or to further and favor the political interest of the
President issuing them. It is admitted in the majority opinion that Executive Order No. 62, seeking to
regulate house and lot rentals was issued in good faith by President Roxas. Executive Order No.
192 was issued to regulate exports, President Quirino presumably believing that exports at this time
still needed regulation and control as was formerly provided by Congress in its Act No. 728, and that
the matter was still within the field of his emergency powers as was also mistakenly believed by
President Roxas in issuing Executive Order No. 52. As to Executive Order No. 226, it merely
appropriated funds to defray the expenses in connection with the holding of the national elections in
November, 1949, without which, said election could not be held. With respect to Executive Order No.
225, it merely continues in force Republic Act 320 which appropriated funds for the last fiscal year
inasmuch as Congress had failed to pass a General Appropriation Act for the operation of the
National Government for the period beginning July 1, 1949 to June 30, 1950. There is no insinuation
that any political motives or purposes are involved in these Executive Orders.

I agree with the majority that since the Constitution provides that the delegation of legislative powers
by the Legislature should be done for a limited period, it is to be presumed that Commonwealth Act
No. 671 was approved with this limitation in view. I even agree to its definition of the word "limited."
But I submit that Commonwealth Act No. 671 itself, limited its operation and effectiveness to and
make it coextensive with the duration of the emergency resulting from the war and that furthermore,
that duration is a limited period within the meaning and contemplation of the Constitution. Surely the
emergency resulting from the war contemplated by the National Assembly when it acted Act No. 671
is not permanent or indefinite. It is of limited duration. It may be long or it may be short; but it cannot
be for always. It has an end. Presumably the members of the National Assembly thought that the
emergency would not last as long as it did. The belief entertained at the time by not a few, in fact by
a great portion of the people here not excluding the legislators, was that the war with Japan would
be of short duration, a question of months at the longest; that American reinforcements would come
at the beginning of the year 1942 and drive away the invading Japanese armies if they ever were
able to occupy the Philippines and that, consequently, the war as far as these islands were
concerned and the resulting emergency would soon pass away. The wisdom or lack of wisdom of
the National Assembly in limiting or rather making the life and effectiveness of Commonwealth Act
No. 671 coextensive with the resulting emergency, viewed in the light of what had actually
happened, cannot be passed upon this Court. So, as I see it, so long as the emergency resulting
from the War continues, Commonwealth Act No. 671 subsists and so long the Chief Executive
retains his emergency powers.

The majority believes that as already stated, Act No. 671 was in force only until Congress could
meet resume its legislatives functions. Naturally, this view is based on the theory that legislative
functions in times of emergency are delegated only because of the inability of the Legislative
Department to meet and exercise its functions. I believe I have successfully demonstrated the flaw in
this theory, not only by showing that the real reason underlying the delegation of legislative powers
is not inability of Legislature to meet but rather it inability to consider and pass legislation in time to
meet an emergency which requires as it does urgent and immediate action and can be solved only
by the exercise of legislative functions by one single responsible individual, unhamppered by study
and prolonged discussion by many members of the legislative body, but also by the fact that
although since 1939 when the second world war broke out in Europe and for a period of more than
two years thereafter, when the National Assembly could still meet and in fact convened on several
occasions and for hundreds of days in regular and special session, nevertheless, it had been
delegating legislative powers to the President.

The majority view finds no support in the law. Section 26, Article VI of the Constitution does not
impose this condition or requirement. The only important conditions imposed by the Constitution are
that there be a national emergency and delegation be for a limited period. The same thing is true
with Act No. 671 which makes the delegation. The only condition imposed by section 2 of said Act is
that the delegated powers be exercised during the emergency. Neither in the Constitution nor in
Commonwealth Act No. 671 is there any hint or insinuation, much less express mention about the
inability of the Legislature to meet. When every consideration for clearness and for Executive and
Judicial guidance loudly called for and demanded an unequivocal and clear expression of
Constitutional and legislative intent, both laws, the source and basis of the emergency powers are
conspicuously silent on this point. The only conclusion is that neither the framers of the Constitution
nor the members of the National Assembly had thought of much less intended to impose this
condition. To sustain the majority view would require reading into the law what is not there. In further
support of its view that emergency powers may be exercised by the President only until the
Legislature could meet, the majority finds comfort in and cites section 3 of Act 671 which reads as
follows:

SEC. 3. The President of the Philippines shall as soon as practicable upon the convening of
the Congress of the Philippines report thereto all the rules and regulation promulgated by
him under the powers herein granted.

I fail to see anything in said section that warrants a holding that upon filing his report with Congress,
about the rules and regulation promulgated by him under his emergency powers under
Commonwealth Act 671, his emergency powers automatically ceased. I could well imagine that
under an act of delegation of legislative powers where the President is authorized to perform one
single act such as the suspension of the eight-hour labor law under Commonwealth Act No. 494, or
the reduction of the expenditures of the executive departments of the National Government by the
suspension or abandonment of services, activities or operations of no immediate necessity under
Commonwealth Act No. 500, when the President has exercised his delegated authority and made
his report to the Assembly as required by said laws, the latter, as well as his delegated authority
thereunder automatically ceased, for the simple reason that nothing remains to be performed or
done. However, treating of the grant of extensive emergency powers as was done under
Commonwealth Acts Nos. 600, 620 and 671 where said laws contemplated many different acts,
rules and regulations of varied categories and objectives and to be performed not at one at time or
instance but at different times during the existence of the emergency, as the need or occasion arose,
there is no reason for the belief or the holding that upon submitting a partial report, the whole law
making the delegation including his powers under it automatically ended. The legislature during the
emergency might be able to convene and naturally, the President will immediately make his report to
it of the rules and regulations promulgated by him up to that time; but if the emergency continued or
even became more serious, would it be reasonable to hold that his emergency powers ended right
then and there? Would it not be more logical and reasonable to believe that inasmuch as the grant
and the exercise of his emergency powers were motivated by and based upon the existence of the
emergency and since the emergency continued his work and responsibility were not ended and that
his partial report could not possibly affect the continuance of his emergency powers?

Section 3 of Commonwealth Act No. 671 provides for the filing of a report with Congress by the
President as soon as that body convened. According to the majority opinion on that date the whole
Act No. 671 ceased to have force and effect. Under that theory, as soon as the Congress convened
in June, 1945, and it is to be presumed that President Osmeña, complying with his duty, must have
made his report of all the numerous Executive Orders he had issued so far, perhaps including those
issued by his predecessor President Quezon who because of his premature death was unable to
report his acts to Congress, the President automatically lost his emergency powers. But the majority
opinion qualifies this convening of the Congress, for it says that it must be a regular session and not
a special session, thereby extending the life of Commonwealth act No. 671 one year longer, to May,
1946 when Congress held its first regular session after liberation. I do not quite see the necessity or
the reason for the distinction made between the special and regular session, for at both sessions
Congress could well receive the report of the President. The reason given is that "in a special
session Congress may consider general legislation or only such subjects as he (President) may
designate." But as a matter of fact, the first two special sessions called by President Osmeña in
1945, after liberation, each for a period of thirty days were both to consider general legislation. So,
actually there is no reason for the distinction.

Furthermore, if it were the intention of the Legislature to fix the time at which Commonwealth Act No.
671 would cease in its operation as of the date when the President could file his report before
Congress when it first convened not in special session but in regular session, it would have
expressly and unequivocally said so. In its other acts of delegation of powers when the legislature
wanted to have the report of the President at its regular session, it expressly and explicitly said so. In
section 3 of Commonwealth Act 494, in section 5 of Commonwealth Act 496, in section 6 of
Commonwealth Act 498, in section 3 of Commonwealth Act 500 and in section 4 of Commonwealth
Act 600, the National Assembly provided that the President shall report to the National Assembly
within ten days after the opening of the next regular session of the said Assembly of whatever acts
have been taken by him under the authority of those Acts. The Assembly left nothing for
interpretation or speculation. In section 3 of Commonwealth Act 671, however, the same Assembly
has not specified the kind of session before which the President should make his report. It merely
said that upon the convening of the Congress the President shall report thereto all the rules and
regulations promulgated by him. We should make no distinction where the law makes or calls for
none. Here again, to support the majority opinion would require reading into the law, section 3 of Act
671, something that is not there.

In case like the present where there is room for doubt as to whether or not Commonwealth Act No.
671 has ceased to operate, one view (of the majority) being that it automatically ceased to have any
force and effect on May 25, 1946, the other view being that the law operated as long as the
emergency resulting from the war existed, the opinion of and the obvious interpretation given by the
legislature which enacted the law and made the delegation of powers and the President to whom the
delegation was made and who exercised said powers, should have much if not decisive weight. We
must bear in mind that we are not passing upon the validity or constitutionality of a law enacted by
the Legislature, in which case, the Court may find the act invalid and unconstitutional if it is in
violation of the basic law, regardless of the opinion or interpretation given by the Legislature that
passed it or of the Executive Department which may be trying to enforce it. We assume that Act No.
671 is valid and constitutional. Here, we are merely trying to ascertain the intention of the National
Assembly as to the life and period of effectiveness of Commonwealth Act No. 671.

Do the study and analysis of other acts of the Legislature similar to Commonwealth Act 671, favor
the view of the majority? The answer in my opinion is clearly and decidedly in the negative. The
majority cites the Commonwealth Acts Nos. 600 and 620 to support the theory that Commonwealth
Act 671 automatically ceased to operate Congress met at its next regular session. But the logical
inference or conclusion to be drawn from these two acts is, in my opinion, just the reverse. It is even
fatal to the view of the majority as I shall attempt to show. Let us consider Commonwealth Act 600
delegating extensive legislative powers to the President, approved on August 19, 1940, which like
Act 671 is silent as to any express provision regarding its life or period of effectiveness, and as to
how long the emergency powers granted the President by it will last. Section 4 of said
Commonwealth Act No. 600 like section 3 of Act 671 provides that "the President shall within the first
ten days from the date of the opening of the Assembly's next regular session report to said
Assembly whatever action he had taken under the authority therein granted." Said section 4 of Act
600 is clearly and more specific than section 3 of Act 671 in that it clearly specifies the next regular
session whereas the latter refers merely to the convening of Congress. But let us
assume arguendo as contended by the majority that "the convening of the Congress" mentioned in
section 3 of Commonwealth Act 671, referred to regular session. According to the majority opinion,
under section 4 of the Commonwealth Act No. 600, as soon as the President made the report of the
National Assembly at its "next regular session" which was to be and was actually held in January,
1941, Commonwealth Act 600 automatically ceased to operate and the President automatically lost
his delegated legislative powers. But this contrary to the very view of the National Assembly which
passed said Act 600. Commonwealth Act No. 620 of the National Assembly passed during that "next
regular session" and approved on June 6, 1941 merely amended section 1 of Commonwealth Act
600, which enumerated the powers delegated to the Chief Executive. It left the rest of the provisions
and sections of Commonwealth Act 600 intact. So that, under section 4 (which was left intact) of Act
600, the President was still required to report to National Assembly within the first 10 days from the
date of the opening of its next regular session which should have begun in January, 1942, despite
the fact that he had already made a report to the Legislature in January, 1941. Incidentally, this
answer and refutes the contention of the majority that the law of delegation of powers contemplated
only one meeting of the Congress at which the President was to report his acts of emergency, and
that said report was to be the first and the last.

Now, what inference may be drawn from this amending of section 1 only of Commonwealth Act No.
600 by Commonwealth Act No. 620? The logical conclusion is that in promulgating Commonwealth
Act 620 on June 6, 1941, the National Assembly all along regarded Commonwealth Act No. 600
which delegated legislative powers to the President as still in force and effect despite the report filed
with the Assembly by the President at the beginning of its regular session in January, 1941. When
the Legislature merely amends a section of a law, leaving the rest of said law intact and unchanged,
the logical inference and conclusion is that the amended law was still in force because you cannot
amend a law which is no longer in force. The only thing that could be done with a law that has
ceased to operate is to reenact it. But in passing Commonwealth Act 620 in July, 1941, the
Assembly did not reenacted Commonwealth Act No. 600. By merely amending one of its sections,
the Assembly, as late as June 1941, considered said Act 600 as still effective and in operation and
consequently, the emergency powers of the President continued and subsisted despite his
previously having made a report of his actions in January 1941. This squarely refutes the theory that
as soon as the President filed his report on the exercise of his emergency powers with the
Legislature, the Act making the delegation ceased to operate and the President lost his emergency
powers.

As I have already stated in the course of this opinion, in connection with another phrase of this case
from January to June, 1941, President Quezon had issued at least eight Executive Orders in the
exercise of his emergency powers, by authority of Commonwealth Act 600. From this it is evident
that he did not share the majority view, because despite his having made his report to the Assembly
in January, 1941, and even before the enactment of Commonwealth Act No. 620, he believed and
considered Commonwealth Act No. 600 as still in force after that date and that he still retained his
emergency powers.

Then, let us see what was the attitude and conduct of the Chief Executive and of Congress after
May 25, 1946, when according to the majority opinion Commonwealth Act No. 671 ceased to
operate. After May 25, 1946, two Presidents, Roxas and Quirino had issued numerous Executive
Orders based upon and invoking Commonwealth Act No. 671. Like President Quezon, they also
evidently were of the opinion that despite the meeting of the Legislature in regular session the act
delegating legislative powers to them (in the case of Roxas and Quirino—Commonwealth Act No.
671) was still in force, that they still retained their emergency powers and so proceeded to exercise
them in good faith.

Congress also, evidently, believed that Commonwealth Act No. 671 was still in force and effect after
said date, May 25, 1946. In spite of the several legislative sessions, regular and special since then
and up to and including the year 1949, Congress has not by law or resolution said anything
questioning or doubting the validity of said Executive Order on the score of having been promulgated
after Commonwealth Act No. 671 had supposedly ceased to operate. Not only this, but at least in
one instance, Congress had by a law promulgated by it, considered one of those supposed illegal
Executive Orders promulgated after May 25, 1946, to be valid. I refer to Republic Act No. 224
approved on June 5, 1948, creating the National Airport Corporation which considered and treated
as valid Executive Order No. 100, dated October 21, 1947, by providing in section 7 of said Republic
Act No. 224 for the abolishment of the Office of the Administrator of the Manila International Airport
established under the provisions of said Executive Order No. 100 and the transfer of the personnel
and funds created under the same Executive Order to the National Airport Corporation. This
Executive Order No. 100 which appropriated public funds and therefore, was of a legislative nature
must have been issued under Commonwealth Act No. 671. It cannot possibly be regarded as having
been promulgated by authority of Republic Act No. 51, for said Act approved on October 4, 1946,
gave the President only one year within which to reorganize the different executive departments,
offices, agencies, etc. and Executive Order No. 100 was promulgated on October 23, 1947, after the
expiration of the one year period. Furthermore, it is a matter of common knowledge that during the
last session of Congress which ended in May, 1949, there was talk if not a movement in the
Congress to end the emergency powers of the President. Nothing concrete in the form of legislation
or resolution was done, for if we are to accept newspaper reports and comment, the members of
Congress or at least a majority of them were willing and satisfied to have the Chief Executive
continue in the exercise of his emergency powers until the end of 1949. All this leads to no other
conclusion but that Congress believed all along that Commonwealth Act No. 671 is still in force and
effect.

If Commonwealth Act No. 671 is still in force and effect the question arises: how long and for what
period will said Act continue to operate? As I have already stated, I believe that the delegation of
emergency powers was made coextensive with the emergency resulting from the war, as long as
that emergency continues and unless the Legislature provides otherwise, Act 671 will continue to
operate and the President may continue exercising his emergency powers.
The last and logical question that one will naturally ask is: has the emergency resulting from the war
passed or does it still exist? This is a fair and decisive question inasmuch as the existence of the
emergency is, my opinion, the test and the only basis of the operation or cessation of Act 671. The
existence or non-existence of the emergency resulting from the war is a question of fact. It is based
on conditions obtaining among the people and in the country and perhaps even near and around it. It
is highly controversial question on which people may honestly differ. There are those who in all good
faith believe and claim that conditions have returned to normal; that the people have now enough to
eat, sometimes even more than they had before the war; that people nowadays especially in the
cities are better nourished and clothed and transported and better compensated for their labor, and
that the President himself in his speeches, chats and messages had assured the public that normal
times have returned, that the problem of peace and order had been solved, that the finances of the
Government and the national economy are sound, and that there is an adequate food supply. It is
therefore, claimed that there is no longer any emergency resulting from the war.

On the other hand, it is asserted with equal vehemence in the opposite camp that conditions are still
far from normal; that the picture painted by the President in cheerful and reassuring colors is based
on over optimism and, as to be expected, calculated to show in bold relief the achievements of the
administration, and so should be considered with some allowance; that we are now importing more
rice than before the war for the reason that many rice farms are idle because of the farmer's fear of
or interference by dissidents; that the problem of peace and order is far from solved as shown by the
frequent hold-ups, kidnapping, loothing and killings and organized banditry not only in Luzon but also
in the Visayas and Mindanao; that whereas before the war, the Constabulary force consisting of only
about 6,000 officers and men could provide complete protection to life and property and was
adequate in all respects to enforce peace and order, now this Constabulary enlarged to about
20,000 men, provided with modern weapons and equipment and with the aid of thousands of
civilians guards and of the Philippine Army and Air Force cannot solve the peace and order problem;
that the dissidents who are well organized, armed and disciplined even attack and sack towns and
sometimes openly defy and engage the armed Government forces; that as long as more than
100,000 firearms are loose and in the hands of irresponsible parties, not excluding the seemingly
regular mysterious supply to them of additional firearms and ammunitions, there can be no peace
and order; and as to the barrio folks in central Luzon and now, even in provinces bordering central
Luzon whose parents and relatives had been killed by dissidents, whose women folk had been
outraged by the same elements, whose homes had been looted and burned and whose very lives
had been subjected to constant terror and peril, compelling them to leave their homes and their
farms and evacuate to and be concentrated in the poblaciones to live there in utter discomfort and
privation, it is said that it would be difficult to convince these unfortunate people that normalcy has
returned and that there is no longer any emergency resulting from the war. To further support the
claim of the existence of an emergency, the menace of communism not only at home, particularly in
central Luzon but from abroad, especially China, is invoked. And it is asserted that all this is a result
of the war.

I repeat that this question of the existence of an emergency is a controversial one, the decision on
which must be based on the ascertainment of facts, circumstances and conditions and the situation
obtaining in the country. This Court is not in a position to decide that controversy. It does not have
the facilities to obtain and acquire the necessary facts and data on which to base a valid and just
decision. Neither did it have the opportunity to receive the necessary evidence as in a hearing or trial
at which evidence, oral or documentary, is introduced. We cannot invoked and resort to judicial
notice because this refers to things of public knowledge, and not controverted, whereas things, facts
and conditions necessary for the determination of whether or not there is still an emergency, are
often not of public knowledge but require investigation, accurate reporting and close contact with the
people to be able to ascertain their living conditions, their needs, their fears, etc.
To me, the department of the Government equipped and in a position to decide this question of
emergency are the Chief Executive and the Legislature. The first has at his command and beck and
call all the executive officials and departments. He has the Army, the Constabulary, Naval Patrol, the
Police of the cities and towns and the barrio lieutenants to inform him of the state of peace and order
and the security of the states. He has the Secretary of Education and all the subordinates officers
and the school officials under him to inform him as to whether or not there is a school crisis or
emergency as a result of the war. He has the Secretary of Agriculture and Natural Resources and
his men to advise him as to the agricultural needs and the food supply of the country. He has the
Secretary of Finance and all the officials under him to inform him of the finances of the Government
and the economy of the country as well as the officials to advise him of the land shipping
transportation situation. In other words, the President is in a position to determine whether or not
there is still an emergency as a result of the war.

As to Congress, it is equally in a position and in fact it is the first to called upon to decide as to the
existence or non-existence of an emergency. According to the Constitution, section 24, Article VI,
either House of Congress may call upon the head of any department of the Government on any
matter pertaining to his departure. The members of Congress come from all parts and the far
corners of the country. They are supposed to be in close contact with their constituents and know at
first hand their needs, the way they live, etc. Congress therefore should know. Moreover, it is the
legislature that must first determine as to whether or not there is a national emergency as a condition
precedent to the delegation of its legislative powers. Naturally, it is the one that is called upon to say
when that emergency ceases.

Now, one will ask, what does Congress think about the emergency? Does it believe that it still
exists? To me the answer is YES. What has been said about the acts, conduct and attitude of the
legislature as to its belief that Commonwealth Act No. 671 is still in force, are all applicable and may
be repeated to show that the Congress believes that the emergency resulting from the war still exist.
Under the theory that I maintain, Congress must be of the opinion that the emergency still exists for
the reason that as I have shown Congress believes that Commonwealth Act No. 671 is still in force
and the life and the operation of said Act depends upon and is coextensive with the existence of the
emergency. To this may be added the attitude and the belief of the President as to the continued
existence of the emergency. It must be borne in mind that Commonwealth Act No. 671 authorizes
the President to exercise his emergency powers only during the existence of the emergency. The
inference is that before exercising his emergency powers by promulgating an Executive Order he
must first determine and decide that the state of emergency still exists, for that is the condition
precedent to the exercise of his delegated powers. In other words, the two departments of the
Government, the Legislative and the Executive Departments, best qualified and called upon to
determine whether or not the emergency resulting from the war still exists have made manifest in
their acts and attitude that they believe that such emergency still exists. I may here state that on this
question of emergency, I entertain no personal opinion either way lacking as I do the means of
deciding fairly and justly. Neither has the Court. If the decision of the courts on question of fact
involved in a controversy are given due respect and weight and are binding, it is because such
decisions are based on evidence adduced and received after a hearing. No such hearing was held
for the purpose and no evidence been received. In other words, we have nothing in which to decide
a question of fact which is the existence or non-existence of emergency.

In view of the conclusion we have arrived at, finding these Executive Orders to be void and of no
effect, particularly Executive Orders Nos. 225 and 226 with the evident result that no funds are
appropriated for the operation of the Government for the fiscal year beginning July of this year and
for the expenses in the coming national election next November, one may inquire as to what will
happen or what is to be done. The answer or answers to this question lie with the Chief Executive.
Congress will not meet in regular session until next year. It is not for the court, not even the
undersigned to suggest the calling of a special legislative session to cope with the perilous situation
thus created, altho one may regard that as a logical remedy. But, should the President call a special
session and Congress for one reason or another fails to meet or though it meets, for one reason or
another it fails to pass an appropriation law, then a real crisis will have ensued. I am confident that
the Chief Executive, conscious of his responsibility as the Chief of the nation would not just stand
supine and idle and see the Government of the Republic of the Philippines disintegrate and die. He
would know what to do and he would do something according to his sound discretion and in
accordance with the law, statutory or otherwise and in the discharge of his high executive powers,
express or implied.

TORRES, J., concurring:

I concur in the foregoing opinion of Mr. Justice Montemayor on the existence of the emergency
powers. I reserve my opinion on the validity of Executive Orders Nos. 225 and 226.

REYES, J., concurring and dissenting:

The main issue in these cases is whether the emergency which on December 16, 1941 prompted
the approval of Commonwealth Act No. 671, delegating extraordinary powers to the President, still
existed at the time the Chief Executive exercised those powers by promulgating the executive orders
whose validity is now challenged.

On issue similar to the one just formulated there is a diversity of opinions. While some courts would
rather leave the determination of such issues to the political department of the Government, others
are for making the determination subject to judicial review. But the latest ruling of the United States
Supreme Court on the point accords with first view and declares that "these are matters of political
judgment for which judges have neither technical competence nor official responsibility."
(Ludecke vs. Watkins, 92 L. ed., 1883.)

In any event the existence or non-existence of an emergency is a question of facts which may not
always be determine without the evidence by mere reference to facts within the judicial notice. In the
present cases, there has been no trial for the reception of proof, and I am not aware that enough
facts have been shown to justify the conclusion that the emergency in question has already ceased.
On the other hand, since the exercise of the emergency powers by the President presupposes a
determination of the existence of the emergency, the President must be presumed to have satisfied
himself in some appropriate manner that the emergency existed when he issued his executive
orders. Under the theory of separation of powers and in accord with the latest ruling of the United
States Supreme Court, it is not for the judiciary to review the finding of the Executive in this regard.
Judicial review would in such case amount to control of executive discretion and place the judicial
branch above a co-equal department of the Government. Only in case of a manifest abuse of the
exercise of powers by a political branch of the Government is judicial interference allowable in order
to maintain the supremacy of the Constitution. But with the cold war still going on though the
shooting war has already ended; with the world still in turmoil so much so that the American
Secretary of the State has declared that "the world has never before in peace time been as troubled
or hazardous as it is right now;" with most of the industries of the country still unrihabilitated, so that
a large proportion of our food and other necessaries have to be imported; with a great portion of the
population still living in temporary quarters; with most of the war damage claims still unpaid; and with
peace and other conditions in the country far from normal, it would be presumptuous for this Court,
without proof of the actual condition obtaining in all parts of the Archipelago, to declare that the
President clearly abused his discretion when he considered the emergency not ended at the time he
promulgated the executive orders now questioned.
The majority opinion has skirted the issue of whether or not the question of the existence or
continuance of the emergency is one for the political department of the Government to determine by
restricting "the life of the emergency powers of the President to the time the Legislature was
prevented from holding session due to enemy action or other causes brought on by the war." I
cannot subscribe to this narrow interpretation of Commonwealth Act No. 671, for in my opinion it is
contrary to both the plain language and manifest purpose of that enactment. The law invests the
President with extraordinary powers in order to meet the emergency resulting from the war and it
expressly says that the President is to exercise those powers "during the existence of the
emergency." The Act does not say that the President may exercise the powers only when the
Legislature is not session. Much less does it say that the emergency powers shall cease as soon as
the Legislature has convened in regular session. An emergency resulting from a global war cannot
end with the mere meeting of the Legislature. Neither may be legislated out of existence. The
Legislature, once it was convened, may, if it so desire, revoked the emergency powers of the
President, but it cannot by any form of legislative action put an immediate end to the emergency
itself. Well known is a fact that a deliverative body, such as the Legislature, because of the time
consumed in the study and discussion of a measure, may not always act with the promptness which
the situation requires so that in an emergency there is really need for the concentration of power in
one man. This may well be the reason why Act No. 671 in express terms authorizes the President to
exercise the emergency powers "during the existence of the emergency" and not merely during the
time that the Legislature could be in session. For one thing to make the life of the emergency powers
depend upon the inability of the Legislature to meet is the same as to declare those emergency
powers automatically ended the moment they were conferred, for at that very moment of the
Legislature that conferred them was in session.

The argument that, unless the emergency powers of the President were made to cease the moment
Congress convened in regular session, we should be having two legislatures which could mutually
annul each other, will not stand analysis. In supposing that the President, in the exercise of the
emergency powers could "repeal or modify a bill passed by the Legislature," the argument overlooks
the fact that the emergency powers delegated to the President under Article VI, section 26 of the
Constitution could only authorize him "to promulgate rules and regulations to carry out a declared
national policy." Only the Legislature (with the concurrence of the President of course) may declare
the President may not, under the Constitution, depart from it. Moreover, unless the Presidential veto
could be overriden, no bill approved by Congress could become a law if the President did not want it.
And if the President approves a bill and allows it to become a law, surely he can have no reason for
repealing it; while, on the other hand, there is no point in his repealing that bill, because if there are
enough votes to override his veto there must also be enough votes to repeal his emergency powers.

The majority opinion has I think placed a rather forced construction upon section 3 of
Commonwealth Act No. 671, which provides that —

The President of the Philippines shall as soon as practicable upon the convening of the
Congress of the Philippines report thereto all the rules and regulations promulgated by him
under the powers herein granted.

As may be seen, the above provision does not say that the President has to report only once, that is,
the first time Congress is convened, and never again. But the majority opinion wants to read that
thought into the law in order to bolster up the theory that the emergency powers of the President
would end as soon as Congress could convene in a regular session.

Invoking the rule of contemporary construction, the majority opinion makes reference to a passage in
President Quezon's book. "The Good Fight," to the effect that, according to the author, Act No. 671,
was only "for a certain period" and "would become valid unless re-enacted." But I see nothing in the
quoted phrases any suggestion that the emergency powers of the President were to end the
moment Congress was convened in regular session regardless of the continuance of the emergency
which gave birth to those powers. A more valid application of the rule of contemporary construction
may, I think, be made by citing the executive orders promulgated by President Roxas by
Commonwealth Act No. 671. Many of those executive orders were issued after May 25, 1946 when
Congress convened in regular session, an event which, according to the majority opinion,
automatically put an end to the emergency powers.

While we have adopted the republican form of government with its three co-equal departments, each
acting within its separate sphere, it would be well to remember that we have not accepted the
American theory of separation of powers to its full extent. For, profiting from the experience of
America when her Supreme Court, by the application many a New Deal measure which her
Congress had approved to meet a national crisis, our Constitutional Convention in 1935, despite the
warning of those who feared a dictatorship in his country, decided to depart from the strict theory of
separation of powers by embodying a provision in our Constitution, authorizing the delegation of
legislative powers to the President "in times of war or other national emergency." It is my surmise
that this provision was intended to guard not only against the inability to meet but also against its
usual tardiness and inaction. We have proof of this last in the last regular session of Congress, when
this body failed to pass measures of pressing necessity, especially the annual appropriation law and
the appropriation for the expenses of the coming elections.

It is said that the need for an appropriation law for the fiscal year 1949-1950 as well for the coming
elections is not an emergency resulting from the war. But I say that if the emergency resulting from
the war as contemplated in Commonwealth Act No. 671 still exists, as the President believes it
exists or he would not have issued the executive orders in question (and it is not for the Court to
change that belief in the absence of proof that the President was clearly wrong) would it not be a
dereliction of duty on his part to fall to provide, during the emergency, for the continuance of the
functions of government, which is only possible with an appropriation law? What would be gained by
issuing rules and regulations to meet the emergency if there is no Government to enforce and carry
them out? The mere calling of a special is no guaranty that an appropriation law will be passed or
that one will be passed before the thousands of officials and employees who work for the
Government have starved. It is, probably, because of these considerations that the National
Assembly, in approving Commonwealth Act No. 671, specifically empowered the President, during
the existence of the emergency, "to continue in force laws and appropriations which would lapse or
otherwise become inoperative." And that Act has authorized the President during the existence of
the same emergency "to exercise such other powers as he may deem necessary to enable the
government to fulfill its responsibilities and to maintain in force this authority." Under this specific
provision, the appropriation for the expenses of the coming elections would, naturally, come, for,
without doubt, it is a measure to enable the Government "to fulfill its responsibilities."

Consistently with the views above express, I am of the opinion that Executive Order No. 225,
appropriating funds for the operation of the Government of the Republic for the fiscal year 1949-50,
and Executive Order No. 226, appropriating funds for the expenses of the coming national elections
in November, 1949, are valid so that the petition in G.R. No. L-3054, Eulogio Rodriguez, Sr. vs.
Treasurer of the Philippines, and the petition in G.R. No. L-3056, Antonio Barredo, etc., vs.
Commissioner on Election, et al., in which the said two executive orders are respectively challenged,
should be denied.

But Executive Order No. 62 (regulating rents) and Executive Order No. 192 (controlling exports)
stand on a different footing. The validity of Executive Order No. 62 can no longer be maintained
because of the approval by the Legislature of Commonwealth Act No. 689 and Republic Act No. 66,
which regulate the same subject matter and which, as an expression of the national policy, can not
be deviated from by the President in the exercise of the emergency powers delegated to him by
Commonwealth Act No. 671. The same is true with respect to Executive Order No. 192 (controlling
exports) in view of the passage of Commonwealth Act No. 728, regulating the same subject matter,
especially because section 4 of said Act terminates the power of the President thereunder on
December 31, 1948, if not sooner. Consequently, since the validity of these executive orders (Nos.
62 and 192) can no longer be upheld, the petitions in G.R. Nos. L-2044, L-2756 and L-3055, which
seek to prohibit their enforcement, should be granted.

PADILLA, J., concurring and dissenting:

I join in this opinion of Mr. Justice Reyes. I wish to add that I agree with Mr. Justice Bengzon that
petitioners in G. R. Nos. L-3054 and L-3056 have no personality to institute the proceedings.

BENGZON, J., dissenting:

The majority feels that it has to decide the question whether the President still has emergency
powers; but unable to determine in which of the above cases the issue may properly be decided, it
grouped them together. When the eye or the hand is unsure, it is best to shoot at five birds in a
group: firing at one after another may mean as many misses.

It does not matter that the first two cases had been submitted and voted before the submission of
the last three. Neither does it matter that, of these last, two should be thrown out in accordance with
our previous rulings. The target must be large.

These cases could be, and should be decided separately. If they are, they may be disposed of
without ruling on the general question whether the President still has emergency powers under
Commonwealth Act No. 7671. How? This way, which is my vote.

1. L-2044, Araneta vs. Dinglasan; L-2756, Araneta vs. Angeles. The President has presently no
power to regulate rents, because his power to do so is granted by Commonwealth Acts Nos. 600
and 620 which have lapsed. Under Commonwealth Act No. 671 he has no power to regulate rents.

2. L-3056, Barredo vs. Commission, etc. Dismissed because petitioner has no personality to

sue. According to Custodio vs. President of the Senate et al., 42 Off. Gaz., 1243, a citizen and
taxpayer, as such, has no legal standing to institute proceedings for the annulment of a statute.

3. L-3054, Rodriguez vs. Treasurer. Dismissed, like the Barredo case. The private rights of petitioner
and of his partymen are affected only as taxpayers.

4. L-3055, Guerrero vs. Commissioner of Customs. Supposing that the President still has
emergency powers under Commonwealth Act No. 671, and that they include regulation of
exportation, inasmuch as the Congress has chosen to legislate on exports (Commonwealth Act No.
728), it has thereby pro tanto withdrawn the power delegated to the President along that field.

It is a sound rule, I believe, for the Court to determine only those questions which are necessary to
decide a case.
Although I am favorably impressed by the considerations set forth by Mr. Justice Montemayor and
Mr. Justice Reyes on the existence of emergency powers, I prefer to vote as herein indicated.

I reserve the right subsequently to elaborate on the above propositions.

For lack of the required number of votes, judgment was not obtained. However, after rehearing, the
required number of votes was had, by resolution of September 16, 1949, which follows.

RESOLUTION

September 16, 1949

MORAN, C. J.:

Petitioners filed motions asking (1) that Mr. Justice Padilla be qualified to act in these cases; (2) that
the vote cast by the late Mr. Justice Perpecto before his death be counted in their favor; and (3) that
the opinion of the Chief Justice be counted as a vote for the nullity of Executive Orders Nos. 225 and
226.

As regards the motion to disqualify Mr. Justice Padilla, the Court is of the opinion that it must not be
considered, it having been presented after Mr. Justice Padilla had given his opinion on the merits of
these cases. As we have once said "a litigant . . . cannot be permitted to speculate upon the action
of the court and raise an objection of this sort after decision has been rendered." (Government of the
Philippine Islands vs. Heirs of Abella, 49 Phil., 374.)

Furthermore, the fact that Justice Padilla, while Secretary of Justice, had advised the President on
the question of emergency powers, does not disqualify him to act in these cases, for he cannot be
considered as having acted previously in these actions as counsel of any of the parties. The
President is not here a party.

All the members of this Court concur in the denial of the motion to disqualify Mr. Justice Padilla, with
the exception of Mr. Justice Ozaeta and Mr. Justice Feria who reserve their vote.

II

With respect to the motion to include the vote and opinion of the late Mr. Justice Perfecto in the
decision of these cases, it appears that Mr. Justice Perfecto died and ceased to be a member of this
Court on August 17, 1949, and our decision in these cases was released for publication on August
26, 1949. Rule 53, section 1, in connection with Rule 58, section 1, of the Rules of Court, is as
follows:

SECTION 1. Judges: who may take part. — All matters submitted to the court for its
consideration and adjudication will be deemed to be submitted for consideration and
adjudication by any and all of the justices who are members of the court at the time when
such matters are taken up for consideration and adjudication, whether such justices were or
 not members of the court and whether they were or were not present at the date of
submission; . . . .

Under this provision, one who is not a member of the court at the time an adjudication is made
cannot take part in the adjudication. The word "adjudication" means decision. A case can be
adjudicated only by means of a decision. And a decision of this Court, to be of value and binding
force, must be in writing duly signed and promulgated (Article VIII, sections 11 and 12, of the
Constitution; Republic Act No. 296, section 21; Rule 53, section 7, of the Rules of Court).
Promulgated means the delivery of the decision to the Clerk of Court for filing and publication.

Accordingly, one who is no longer a member of this Court at the time a decision is signed and
promulgated, cannot validly take part in that decision. As above indicated, the true decision of the
Court is the decision signed by the Justices and duly promulgated. Before that decision is so signed
and promulgated, there is no decision of the Court to speak of. The vote cast by a member of the
Court after deliberation is always understood to be subject to confirmation at the time he has to sign
the decision that is to be promulgated. That vote is of no value if it is not thus confirmed by the
Justice casting it. The purpose of this practice is apparent. Members of this Court, even after they
have cast their vote, wish to preserve their freedom of action till the last moment when they have to
sign the decision, so that they may take full advantage of what they may believe to be the best fruit
of their most mature reflection and deliberation. In consonance with this practice, before a decision is
signed and promulgated, all opinions and conclusions stated during and after the deliberation of the
Court, remain in the breast of the Justices, binding upon no one, not even upon the Justices
themselves. Of course, they may serve for determining what the opinion of the majority provisionally
is and for designating a member to prepare the decision binding unless and until duly signed and
promulgated.

And this is practically what we have said in the contempt case against Abelardo
Subido,1 promulgated on September 28, 1948:

que un asunto o causa pendiente en esta Corte Suprema solo se considera decidido una
vez registrada, promulgada y publicada la sentencia en la escribania, y que hasta entonces
el resultado de la votacion se estima como una materia absolutamente reservada y
confidencial, perteneciente exclusivamente a las camaras interiores de la Corte.

In an earlier case we had occasion to state that the decisive point is the date of promulgation of
judgment. In that case a judge rendered his decision on January 14; qualified himself as Secretary of
Finance on January 16; and his decision was promulgated on January 17. We held that the decision
was void because at the time of its promulgation the judge who prepared it was no longer a judge.
(Lino Luna vs. Rodriquez, 37 Phil., 186.)

Another reason why the vote and opinion of the Mr. Justice Perfecto can not be considered in these
cases is that his successor, Mr. Justice Torres, has been allowed by this Court to take part in the
decision on the question of emergency powers because of lack of majority on that question. And Mr.
Justice Torres is not bound to follow any opinion previously held by Mr. Justice Perfecto on that
matter. There is no law or rule providing that a successor is a mere executor of his predecessor's
will. On the contrary, the successor must act according to his own opinion for the simple reason that
the responsibility for his action is his and of no one else. Of course, where a valid and recorded act
has been executed by the predecessor and only a ministerial duty remains to be performed for its
completion, the act must be completed accordingly. For instance, where the predecessor had
rendered a valid judgment duly filed and promulgated, the entry of that judgment which is a
ministerial duty, may be ordered by the successor as a matter of course. But even in that case, if the
successor is moved to reconsider the decision, and he still may do so within the period provided by
the rules, he is not bound to follow the opinion of his predecessor, which he may set aside according
to what he may believe to be for the best interests of justice.

We are of the opinion, therefore, that the motion to include the vote and opinion of the late Justice
Perfecto in the decision of these cases must be denied.

Mr. Justice Paras, Mr. Justice Bengzon, Mr. Justice Padilla, Mr. Justice Montemayor, Mr. Justice
Alex. Reyes, and Mr. Justice Torres concur in this denial. Mr. Justice Ozaeta, Mr. Justice Feria and
Mr. Justice Tuason dissent.

III

In connection with the motion to consider the opinion of the Chief Justice as a vote in favor of
petitioners, the writer has the following to say:

In my previous concurring opinion, I expressed the view that the emergency powers vested in
Commonwealth Act No. 671 had ceased in June 1945, but I voted for a deferment of judgment in
these two cases because of two circumstances then present, namely, (1) the need of sustaining the
two executive orders on appropriations as the life-line of government and (2) the fact that a special
session of Congress was to be held in a few days. I then asked, "Why not defer judgment and wait
until the special session of Congress so that it may fulfill its duty as it clearly sees it?"

It seemed then to me unwise and inexpedient to force the Government into imminent disruption by
allowing the nullity of the executive orders to follow its reglementary consequences when Congress
was soon to be convened for the very purpose of passing, among other urgent measures, a valid
appropriations act. Considering the facility with which Congress could remedy the existing anomaly, I
deemed it a slavish submission to a constitutional formula for this Court to seize upon its power
under the fundamental law to nullify the executive orders in question. A deferment of judgment
struck me then as wise. I reasoned that judicial statesmanship, not judicial supremacy, was needed.

However, now that the holding of a special session of Congress for the purpose of remedying the
nullity of the executive orders in question appears remote and uncertain, I am compelled to, and do
hereby, give my unqualified concurrence in the decision penned by Mr. Justice Tuason declaring
that these two executive orders were issued without authority of law.

While in voting for a temporary deferment of the judgment I was moved by the belief that the positive
compliance with the Constitution by the other branches of the Government, which is our prime
concern in all these cases, would be effected, and indefinite deferment will produce the opposite
result because it would legitimize a prolonged or permanent evasion of our organic law. Executive
orders which are, in our opinion, repugnant to the Constitution, would be given permanent life,
opening the way to practices which may undermine our constitutional structure.

The harmful consequences which, as I envisioned in my concurring opinion, would come to pass
should the said executive orders be immediately declared null and void, are still real. They have not
disappeared by reason of the fact that a special session of the Congress is not now forthcoming.
However, the remedy now lies in the hands of the Chief Executive and of Congress, for the
Constitution vests in the former the power to call a special session should the need for one arise,
and in the latter, the power to pass a valid appropriation act.

That Congress may again fall to pass a valid appropriations act is a remote possibility, for under the
circumstances it fully realizes its great responsibility of saving the nation from breaking down; and
furthermore, the President in the exercise of his constitutional powers may, if he so desires, compel
Congress to remain in special session till it approves the legislative measures most needed by the
country.

Democracy is on trial in the Philippines, and surely it will emerge victorious as a permanent way of
life in this country, if each of the great branches of the Government, within its own allocated spear,
complies with its own constitutional duty, uncompromisingly and regardless of difficulties.

Our Republic is still young, and the vital principle underlying its organic structure should be
maintained firm and strong, hard as the best of steel, so as to insure its growth and development
along solid lines of a stable and vigorous democracy.

With my declaration that Executive Orders Nos. 225 and 226 are null and void, and with the vote to
the effect of Mr. Justice Ozaeta, Mr. Justice Paras, Mr. Justice Feria, Mr. Justice Tuason and Mr.
Justice Montemayor, there is a sufficient majority to pronounce a valid judgment on that matter.

It is maintained by the Solicitor General and the amicus curiae that eight Justices are necessary to
pronounce a judgment on the nullity of the executive orders in question, under section 9 of Republic
Act No. 296 and Article VIII, section 10 of the Constitution. This theory is made to rest on the ground
that said executive orders must be considered as laws, they having been issued by the Chief
Executive in the exercise of the legislative powers delegated to him.

It is the opinion of the Court that the executive orders in question, even if issued within the powers
validly vested in the Chief Executive, are not laws, although they may have the force of law, in
exactly the same manner as the judgments of this Court, municipal ordinances and ordinary
executive orders cannot be considered as laws, even if they have the force of law.

Under Article VI, section 26, of the Constitution, the only power which, in times of war or other
national emergency, may be vested by Congress in the President, is the power "to promulgate rules
and regulations to carry out a declared national policy." Consequently, the executive orders issued
by the President in pursuance of the power delegated to him under that provision of the Constitution,
may be considered only as rules and regulations. There is nothing either in the Constitution or in the
Judiciary Act requiring the vote of eight Justices to nullify a rule or regulation or an executive order
issued by the President. It is very significant that in the previous drafts of section 10, Article VII of the
Constitution, "executive order" and "regulation" were included among those that required for their
nullification the vote of two thirds of all of the members of the Court. But "executive order" and
"regulations" were later deleted from the final draft (Aruego, The Framing of the Philippine
Constitution, Vol. I, pp. 495, 496), and thus a mere majority of six members of this Court is enough
to nullify them.

All the members of the Court concur in this view.

For all the foregoing, the Court denies the motion to disqualify Mr. Justice Padilla, and the motion to
include the vote of the late Mr. Justice Perfecto in the decision of these cases. And it is the judgment
of this Court to declare Executive Orders Nos. 225 and 226, null and void, with the dissent of Mr.
Justice Bengzon, Mr. Justice Padilla and Mr. Justice Reyes, upon the grounds already stated in their
respective opinions, and with Mr. Justice Torres abstaining.

But in order to avoid a possible disruption or interruption in a normal operation of the Government, it
is decreed, by the majority, of course, that this judgment take effect upon the expiration of fifteen
days from the date of its entry. No costs to be charged.
Ozaeta, Paras, Bengzon, Padilla, Tuason, Montemayor, Reyes and Torres, JJ., concur.

FERIA, J., concurring:

The respondent in the cases G. R. Nos. L-3054 and L-3056 contend that the petitioners in said
cases can not institute an action to invalidate the Executive Orders Nos. 225 and 226 promulgated
by the President, because they have no interest in preventing the illegal expenditures of moneys
raised by taxation, and can not therefore question the validity of said executive orders requiring
expenditures of public money.

Although the Supreme Court, in the case of Custodio vs. President of the Senate, G. R. No. L-117
(42 Off. Gaz., 1243) held in a minute resolution "That the constitutionality of a legislative act is open
to attack only by person whose rights are affected thereby, that one who invokes the power of the
court to declare an Act of Congress to be unconstitutional must be able to show not only that the
statute is invalid, but that he has sustained or is in immediate danger of sustaining some direct injury
as the result of its enforcement," that ruling was laid down without a careful consideration and is
contrary to the ruling laid down in the majority of jurisdictions in the United States that "In the
determination of the degree of interest essential to give the requisite standing to attack the
constitutionality of a statute, the general rule is that not only persons individually affected, but also
have taxpayers, have sufficient interest in preventing the illegal expenditures of money raised by
taxation and may therefore question the constitutionality of statutes requiring expenditures of public
moneys." (Am. Jur., Vol. 11, p. 761) All the members of this Court, except two, in taking cognizance
of those cases, rejected the respondents' contention, reversed the ruling in said case and adopted
the general rule above mentioned; and we believe the latter is better than the one adopted in said
case of Custodio, which was based on a doctrine adhered to only in few jurisdiction in the United
States; because if a taxpayer can not attack the validity of the executive orders in question or a law
requiring the expenditure of public moneys, one under our laws could question the validity of such
laws or executive orders.

After laying down the fundamental principles involved in the case at bar, we shall discuss and show
that Commonwealth Act No. 671 was no longer in force at the time the Executive Orders under
consideration were promulgated, because even the respondents in the cases G. R. Nos. L-2044 and
L-2756, in sustaining the validity of the Executive Order No. 62 rely not only on Commonwealth Act
No. 600 as amended by Commonwealth Act No. 620, but on Commonwealth Act No. 671; and
afterwards we shall refute the arguments in support of the contrary proposition that said
Commonwealth Act No. 671 is still in force and, therefore, the President may exercise now the
legislative powers therein delegated to him.

PRELIMINARY

The Constitution of the Philippines, drafted by the duly elected representatives of the Filipino people,
provides in its section 1, Article II, that "The Philippines is a republican states, sovereignty resides in
the people and all government authority emanates from them." The people have delegated the
government authority to three different and separate Departments: Legislative, Executive, and
Judicial. In section 1, Article VI, the legislative power to make laws is conferred upon Congress; the
executive power to faithfully executed the laws is vested by sections 1 and 10 of Article VII, in the
President; and the judicial power is vested by section 1, Article VII, in one Supreme Court and in
such inferior courts as may be established by law, the Supreme Court having the supremacy to pass
upon "the constitutionality or validity of any treaty, law, ordinance, or executive order or regulations."
The distribution by the Constitution of the powers of government to the Legislative, Executive, and
Judicial Departments operates, by implication, as an inhibition against the exercise by one
department of the powers which belong to another, and imposes upon each of the three
departments the duty of exercising its own peculiar powers by itself, and prohibits the delegation of
any of those powers except in cases expressly permitted by the Constitution. The principle of the
separation of the powers of government is fundamental to the very existence of a constitutional
government as established in the Philippines patterned after that of the United States of America.
The division of governmental powers into legislative, executive, and judicial represents the most
important principle of government that guarantees the liberties of the people, for it prevents a
concentration of powers in the hands of one person or class of persons.

Under the doctrine of separation of the powers of government, the law-making functions is assigned
exclusively to the legislative, and the legislative branch cannot delegate the power to make laws to
any other authority. But it must be borne in mind that what cannot be delegated is that which is
purely legislative in nature, not administrative. There are powers so far legislative that may properly
be exercised by the legislature, but which may nevertheless be delegated because they may be
advantageously exercised in proper cases by persons belonging to the other departments of the
government, such as the authority to make rules and regulations of administrative character to carry
out an legislative purposes or to effect the operation and enforcement of a law. As illustrations of the
proper exercise of the power of Congress to delegate the authority to promulgate rules and
regulations with the necessary details to carry into effect a law, are Act No. 3155 empowering the
Governor General then, now the President, to suspend or not, at his discretion, the prohibition of the
importation of foreign cattle (Cruz vs. Youngberg, 56 Phil., 234; Act No. 3106 authorizing the
Commissioner of the Public Service Commission to regulate those engaged in various occupations
or business affected with a public interest, and to prescribe what the charges shall be for services
rendered in the conduct of such business (Cebu Autobus Co. vs. De Jesus, 56 Phil., 446); and the
National Industrial Recovery Act enacted by the Congress of the United States authorizing the
President to promulgate administrative rules and regulations to carry out the emergency measure
enacted by Congress, though a part thereof was declared unconstitutional for producing a delegation
of legislative authority which is unconfined, "and not canalized within banks to keep it from ever
flowing."

Athough, in principle, the power of the Legislature to make laws or perform acts purely legislative in
nature may only be delegated by Congress to another authority or officers of either the executive or
judicial department when expressly permitted by the Constitution, no such delegation is authorized
by the State constitution or Federal Constitution of the Untied States. It is a fact admitted by the
attorneys and amici curiae for the petitioners and respondents in these case that section 26, Article
VI, our Constitution is unique and has no counterpart in said constitutions, and for that reason not a
single case involving a question similar to the one herein involved has never been submitted to and
passed upon by the courts of last resort in the United States. The provision of our Constitution reads
as follows:

SEC. 26. 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
promulgate rules and regulations to carry out a declared national policy.

It is important to observe that what the above-quoted constitutional provision empowers Congress to
delegate to the President, is not the power to promulgate rules and regulations of administrative
nature, for this may also be delegated at any time without necessity of an express authority by the
Constitution, but the power to promulgate rules and regulations purely legislative in nature, leaving to
the discretion of the President the determination of what rules or regulations shall be or what acts
are necessary to effectuate the so-called declared national policy, for otherwise it would not have
been necessary for the Constitution to authorize Congress to make such delegation.

DEMONSTRATION

The Constitution permits Congress to authorize the President of the Philippines to promulgate rules
and regulations of legislative nature only (1) in times of war or (2) other national emergency, such as
rebellion, flood, earthquake, pestilence, economic depression, famine or any other emergency
different from war itself affecting the nation.

It is obvious that it is Congress and not a particular emergency and to authorize the President to
promulgate rules and regulations to cope with it. Therefore, if Congress declares that there exist a
war as a national emergency and empowers the President to promulgate rules and regulations to
tide over the emergency, the latter could not, because he believes that there is an economic
emergency or depression or any emergency other than war itself, exercise the legislative power
delegated to meet such economic or other emergency.

The Constitution requires also that the delegation be for a limited period or other authority so
delegated shall cease ipso facto at the expiration of the period, because to require an express
legislation to repel or terminate the delegated legislative authority of the President might be
subversive to the constitutional separation of powers in out democratic form of government, for the
President my prevent indefinitely the repeal of his delegated authority by the exercise of his veto
power, since the veto could be overridden only by two-thirds vote and it would be extremely difficult
to repeal it in subservient Congress dominated by the Chief Executive. Besides, to provide that the
delegated legislative powers shall continue to exist until repealed by the Congress, would be
delegation not for limited, but for an unlimited period or rather without any limitation at all, because
all acts enacted are always subjects to repeal by the Congress, without necessity to providing so.

No question is raised as to the constitutionality of Commonwealth Act No. 671 under which
Executive Orders Nos. 62, 192, 225 and 226 were promulgated by the President of the Philippines
according to the contention of the respondents. The question involved is the validity (not
constitutionality) of said executive orders, that is, whether or not the President had authority to
promulgate them under Commonwealth Act No. 671; and therefore the concurrence of two-thirds of
all the members of this Court required by section 10, Article VIII of the Constitution to declare a
treaty or law unconstitutional is not required for adjudging the executive orders in question invalid or
not authorized by Commonwealth Act No. 671, which read as follows:

COMMONWEALTH ACT NO. 671

AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A RESULT OF WAR

INVOLVING THE PHILIPPINES AND AUTHORIZING THE PRESIDENT TO PROMULGATE
RULES AND REGULATIONS TO MEET SUCH EMERGENCY.

Be it enacted by the National Assembly of the Philippines:

SECTION 1. The existence of war between the United States and other countries of
Europe and Asia, which involves the Philippines, makes it necessary to invest the
President with extraordinary powers in order to meet the resulting emergency.

SEC. 2. Pursuant to the provisions of Article VI, section 16, of the Constitution, the
President is hereby authorized, during the existence of the emergency, to promulgate
 such rules and regulations as he may deem necessary to carry out the national
policy declared in section 1 hereof. Accordingly he is, among other things,
empowered (a) to transfer the seat of the Government or any of its subdivisions,
branches, departments, offices, agencies or instrumentalities; (b) to reorganize the
government of the Commonwealth including the determination of the order of
procedure of the heads of the Executive Departments; (c) to create new subdivisions,
branches, departments, offices, agencies or instrumentalities of Government and to
abolish any of those already existing; (d) to continue in force laws and appropriations
which would lapse or otherwise become inoperative, and to modify or suspend the
operation or application of those of an administrative character; (e) to impose new
taxes or to increase, reduce, suspend, or abolish those in existence; (f) to raise funds
through the issuance of bonds or otherwise, and to authorize the expenditure of the
proceeds thereof (g) to authorize the National, provincial, city or municipal
governments to incur in overdrafts for purposes that he may approve; (h) to declare
the suspension of the collection of credits or the payment of debts; and (i) to exercise
such other powers as he may deem necessary to enable the Government to fulfill its
responsibilities and to maintain and enforce its authority.

SEC. 3. The President of the Philippines shall as soon as practicable upon the
convening of the Congress of the Philippines report thereto all the rules and
regulations promulgated by him under the powers herein granted.

SEC. 4. This Act shall take upon its approval, and the rules and regulations
promulgated hereunder shall be in force and effect until the Congress of the
Philippines shall otherwise provide.

Approved, December 16, 1941.

Taking into consideration the presumption that Congress was familiar with the well-known limits of its
powers under section 26, Article VI, of the Constitution and did not intend to exceed said powers in
enacting Commonwealth Act No. 671, the express provisions of Commonwealth Acts. Nos. 494,
496, 498, 499, 500, 600 as amended by 620 and 671, and those of Commonwealth Act No. 689 as
amended by Republic Act No. 66 and Republic Acts Nos. 51 and 728, we are of the opinion, and
therefore so hold, that the actual war in the Philippine territory and not any other national emergency
is contemplated in Commonwealth Act No. 671, and that the period of time during which the
President was empowered by said Commonwealth Act No. 671 to promulgate rules and regulations
was limited to the existence of such war or invasion of the Philippines by the enemy, which
prevented the Congress to meet in a regular session. Such emergency having ceased to exist upon
the complete liberation of the Philippines from the enemy's occupation, Commonwealth Act No. 671
had ceased to be in force and effect at the date of the adjournment of the next regular session of the
Congress in 1946, before the promulgation of said executive orders, and hence they are null and
void.

In view of the existence of a state of national emergency caused by the last world war among
several nations of the world, the second National Assembly during its second special session
passed the following acts: (a) Commonwealth Act No. 494 authorizing the President until the
adjournment of the next regular session of the National Assembly, to suspend the operation of
Commonwealth Act No. 444, commonly known as the "Eight-Hour Labor-Law," when in his judgment
the public interest so required, in order to prevent a dislocation of the productive forces of the
country; (b) Commonwealth Act No. 496 delegating to the President the power expressly granted by
section 6, Article XIII, of the Constitution to the State "until the date of adjournment of the next
regular session of the National Assembly, to take over solely for use or operation by the Government
during the existence of the emergency any public service or enterprise and to operate the same,"
upon payment of just compensation; (c) Commonwealth Act No. 498, authorizing the President,
among others, to fix the maximum selling prices of foods, clothing, fuel, fertilizers, chemicals,
building materials, implements, machinery, and equipment required in agriculture and industry, and
other articles or commodities of prime necessity, and to promulgate such rules and regulations as he
may deem necessary in the public interest, which rules and regulations shall have the force and
effect of law until the date of the adjournment of the next regular session of the National Assembly;
(d) Commonwealth Act No. 499 providing that until the date of the adjournment of the next regular
session of the National Assembly, any sale, mortgage, lease, charter, delivery, transfer of vessels
owned in whole or in part by a citizen of the Philippines or by a corporation organizes under the laws
of the Philippines, to any person not a citizen of the United States or of the Philippines, shall be null
and void, without the approval of the President of the Philippines; and Commonwealth Act No. 500
authorizing the President to reduce the expenditure of the Executive Department of the National
Government by the suspension or abandonment of services, activities or operations of no immediate
necessity, which authority shall be exercised only when the National Assembly is not in session. All
these Commonwealth Acts took effect upon their approval on September 30, 1939, a short time after
the invasion of Poland by Germany.

During the fourth special session of the second National Assembly, Commonwealth Act No. 600,
which superseded the above-mentioned emergency power acts, was passed and took effect on its
approval on August 19, 1940. This Act No. 600 expressly declared that the existence of war in many
parts of the world had created a national emergency which made it necessary to invest the President
with extraordinary powers in order to safeguard the integrity of the Philippines and to insure the
tranquility of its inhabitants, by suppressing espionage, lawlessness, and all supervise activities, by
preventing or relieving unemployment, by insuring to the people adequate shelter and clothing and
sufficient food supply, etc. To carry out this policy the President was "authorized to promulgate rules
and regulations which shall have the force and effect of law until the date of adjournment of the next
regular session of the National Assembly," which rules and regulations may embrace the objects
therein enumerated. And the National Assembly in its regular session commencing in January, 1941,
in view of the fact that the delegated authority granted to the President by Commonwealth Acts Nos.
494, 496, 498, 500, and 600 was to terminate at the date of the adjournment of that regular session
of the National Assembly, passed Act No. 620 which took effect upon its approval on June 6, 1941,
amending section 1 of Commonwealth Act No. 600 by extending the delegated legislative authority
of the President until the date of the adjournment of the next regular session of the Congress of the
Philippines, instead of the National Assembly, the Constitution having been amended by substituting
the Congress of the Philippines for the National Assembly..

Although Commonwealth Act No. 600, as amended by Commonwealth Act No. 620, provides that
"the President is authorized to promulgate rules and regulations which shall have the force and
effect of law until the date of adjournment of the next regular session of the Congress of the
Philippines," it is evident that this limitation was intended to apply, not only to the effectivity of the
rules and regulations already promulgated, but specially to the authority granted to the President to
promulgated them, for the following reasons: First, because Commonwealth Act Nos. 494, 496, 498,
499, and 500 had expressly limited the authority of the President to exercise the delegated power
while the Assembly was not in session until the date of the adjournment of the next regular session
of then National Assembly, and there was absolutely no reason whatsoever why the National
Assembly, in enacting Commonwealth Act No. 600 as amended, which superseded said Act, would
not impose the same limitation on the authority delegated in Commonwealth Act No. 600 as
amended in compliance with the requirement of the Constitution; secondly, because it would have
been useless to give the rules and regulations the effect and force of law only until the date of the
adjournment of the next regular session of the Congress, if the President might, after said
adjournment, continue exercising his delegated legislative powers to promulgate again the same and
other rules and regulations; and lastly, because to construe Commonwealth Act No. 600, as
amended by Act No. 620, otherwise would be to make the delegation not for a limited but for an
indefinite period of time, in violation of the express provision of section 26, Article VI of the
Constitution.

All the above-mentioned Acts Nos. 494, 496, 499, 500, and 600 before its amendment show that it
was the intention or policy of the National Assembly, in delegating legislative functions to the
President, to limit the exercise of the latter's authority to the interregnum while the National
Assembly or Congress of the Philippines was not in session until the date of the adjournment of the
next regular session thereof, which interregnum might have extended over a long period of time had
the war in Europe involved and made the Philippines a battle ground before the next regular session
of the Congress had convened. And the authority granted to the President of Commonwealth Act
No. 600, as amended, had to be extended over a long period of time during the occupation because,
before the meeting of the next regular session of the Congress, the Philippines was involved in the
war of the United States and invaded and occupied by the Japanese forces. And the President was
authorized to exercise his delegated powers until the date of the adjournment of the next regular
session of the Congress, for the reason that although during the next regular session a bill may be
passed, by the Congress, it would not become a law until it was approved, expressly or impliedly, by
the President during the period of twenty days after it shall have been presented to him.

The reason of the limitation is that if Congress were in position to act it would not be necessary for it
to make such legislative delegation to the President, for Congress may in all cases act, declare its
will and, after fixing a primary standard or yardstick, authorize the President to fill up the details by
prescribing administrative rules and regulations to cope with the actual conditions of any emergency;
and it is inconceivable that there may arise an emergency of such a nature that would require
immediate action and can not wait, without irreparable or great injury to the public interest, and
action of the legislative in regular or special session called by the Chief Executive for the purpose of
meeting it. If in the United States they could withstand and have withstood all kinds of emergency
without resorting to the delegation by the legislative body of legislative power to the Executive except
those of administrative nature, because no such delegation is permitted by the States and Federal
constitution, as above stated, there is no reason why the same can not be done in the Philippines.
The frames of our Constitution and the national Assembly that enacted Commonwealth Act No. 671
are presumed to be aware of the inconvenience and chaotical consequences of having two
legislative bodies acting at one and the same time.

It is true that Commonwealth Act No. 671 does not expressly say that the President is authorized to
promulgates rules and regulations until the date of the adjournment of the next regular session of the
National Assembly or Congress as the above-quoted Commonwealth Acts; but it is also true that it
clearly provides that "pursuant to the provisions of Article VI, section 26, of the Constitution, the
President is hereby authorized, during the existence of the emergency, to promulgate such rules and
regulations as he may deem necessary to carry out the national policy declared"; and that the
definite and specific emergency therein referred to is no other that the "state of total emergency as a
result of war involving the Philippines", declared in the title of said Act No. 671, that was the reason
for which the President was "authorize to promulgate rules and regulations to meet resulting
emergency." It is obvious that what Act No. 671 calls "total emergency" was the invasion and
occupation of the Philippines by the enemy or Japanese forces which, at the time of the passage
and approval of said Act, had already landed in Philippine soil and was expected to paralyze the
functioning of the Congress during the invasion and enemy occupation of the Philippines.

The mere existence of the last world war in many parts of the world which had created a national
emergency made it necessary to invest the President with extraordinary powers was not called total
emergency by Commonwealth Act Nos. 600 and 620, because it had not yet actually involved and
engulfed the Philippines in the maelstrom of war. It does not stand to reason that the authority given
to the President to promulgate rules and regulations of legislative nature by Commonwealth Acts
Nos. 494, 496, 498, 499, 500, 600 and 620 was to terminate at the date of the adjournment of the
next regular session of the Congress of the Philippines in 1946, but those granted to the President
by Commonwealth Act No. 671 under the same war emergency should continue to exist indefinitely
even after the Congress of the Philippines had regularly convened, acted, and adjourned in the year
1946 and subsequent years. Besides to give such construction to Act No. 671 would make it
violative of the express provision of section 26, Article VIII, of the Constitution, under which said
Commonwealth Act No. 671 was enacted, as expressly stated in said Act, and which permits the
Congress to authorize the President, only for a limited period during a war emergency, to promulgate
rules and regulations to carry into effect a declared national policy.

By the special session of the first Congress of the Philippines commencing on the 9th day of June,
1945, called by the President for the purpose of considering general legislation, Commonwealth Act
No. 671 did not cease to operate. As we have already said, the emergency which prompted the
second National Assembly to enact Commonwealth Act No. 671 delegating legislative powers to the
President, was the inability of Congress to convene in regular session in January of every during the
invasion of the Philippines by the Japanese Imperial forces. The National Assembly could not have
in mind any special session which might have been called by the President immediately after
liberation, because the calling of a special session as well as the matters which may be submitted by
the President to Congress for consideration is a contingent event which depend upon the possibility
of convening it and the discretion of the President to call it, and the matters he will submit to it for
consideration; because it is to be presumed, in order to comply with the provision of section 26,
Article VI of the Constitution, that it was the intention of the National Assembly to fix a limited period,
independent of the President's will, during which he is authorized to exercise his delegated
legislative power.

The object of section 3 of Act No. 671 in requiring the President to report "as soon as practicable
upon the convening of the Congress of the Philippines all rules and regulations promulgated by him
under the powers therein granted" is to inform the Congress of the contents of said rules and
regulations so that the latter may modify or repeal them if it sees fit to do so, inasmuch as, according
to section 4 of the same Act, "the rules and regulations promulgated hereunder shall be in force and
effect until the Congress shall otherwise provide." And although said section 3 does not specify
whether in regular or special session, it is evident that it refers to the next regular and not to the
special session of the Congress, because as a rule a special session is called to consider only
specific matters submitted by the President to Congress for consideration, and it would be useless to
submit such report to the Congress in special session if the latter can not either modify or repeal
such rules and regulations; and besides, it is to be presumed that it was the intention of the National
Assembly in enacting section 3 of Commonwealth Act No. 671 to require the submission of a report
to the next regular session of the Assembly or Congress, as provided in section 4 Commonwealth
Act No. 600, as amended by Commonwealth Act No. 620, which required a similar report, for there
was absolutely no plausible reason to provide otherwise.

Our conclusion is corroborated by the fact that section 3 of Act No. 671 only requires the President
to submit the report, "as soon as practicable upon the convening of the Congress" and not to submit
a report to the Congress every time it convenes, in order to inform the Congress thereof so that the
latter may modify or repeal any or all of them, for under section 4 of the same Act "such rules and
regulations shall continue in force and effect until the Congress shall otherwise provide." It is obvious
that the convening of the Congress referred to in said section 3 is the next regular session of the
Congress after the passage of Act No. 671, and not any other subsequent session; because,
otherwise, it would not have required that it shall be submitted to the Congress as soon as
practicable and the purpose of the law already stated in requiring the submission of the report would
be defeated; and if it were the intention of said Commonwealth Act No. 671 to authorize the
President to continue promulgating rules and regulations after the next regular session of the
Congress, it would have required the President to submit to the Congress each and every time it
convenes a report of the rules and regulations promulgated after his previous reports had been
submitted.

Furthermore, our conclusion is confirmed by the legislative interpretation give to Commonwealth Act
No. 671 by the same Congress in enacting Commonwealth Act No. 728 which took effect on July 2,
1946, authorizing the President to regulate, control, curtail, and prohibit the exploration of agricultural
or industrial products, merchandise, articles, materials and supplies without the permit of the
President until December 31, 1948 as expressly provided in section 4 thereof, because it would not
have been necessary for the Congress to promulgate said Act No. 728 if the President had authority
to promulgate Executive Order No. 62 in question on January 1, 1949, under Commonwealth Act
No. 671 as contended by the respondents; and Republic Act No. 51, approved on October 4, 1946,
authorizing within one year the different executive departments, business, offices, agencies and
other instrumentalities of the government, including corporations controlled by it, would not have
been passed by the Congress if Commonwealth Act No. 671 under consideration was then still in
force, for section 2 (b) and (c) of said Act No. 671 authorizes the President to reorganize the
Government and to create new subdivisions, branches, department offices, agencies or
instrumentalities of government, and to abolish any of those already existing.

REPUTATION

There is no force in the argument that the executive orders in question are not valid, not because the
promulgation of the acts above mentioned and of Commonwealth Act No. 689 as amended by the
Republic Act No. 66 on rentals, the appropriation acts or Republic Act Nos. 1, 156, and 320 for the
years 1946-47, 1947-48 and 1948-49, and of the Republic Acts Nos. 73, 147, and 235 appropriating
public finds to defray the expenses for the elections held in 1947 and 1948, shows that the
emergency powers granted by Commonwealth Act No. 671 had already ceased to exist, but
because Congress "has shown by their enactment its readiness and ability to legislate on those
matters, and had withdrawn it from the realm of presidential legislation or regulations under the
powers delegated by Commonwealth Act No. 671." If the Congress was ready and able to legislate
on those matters since 1946 and for that reason the executive orders herein involved are null and
void, there is no valid reason for not concluding that the emergency powers of the President has
ceased to exist it did not, legislate on all matters on which the President was granted and delegated
power to legislate by the Commonwealth Act No. 671. And if Commonwealth Act No. 671 continues
to be in force and effect in so far as it grants delegated legislative powers to the President and
declares the national policy to be carried out by the rules and regulations the President is authorize
to promulgate, the mere promulgation of the acts above described can not be considered as an
implied repeal or withdrawal of the authority of the President to promulgates rules and regulations
only on those matters, and the adoption of a contrary policy by the Congress, because implied
repeal is not favored in statutory construction, and the national policy referred to in section 26, Article
VIII of the Constitution is to be declared by the Congress in delegating the legislative powers to the
President, in order to establish the standard to be carried out by him in exercising his delegated
functions, and not in repealing said powers.

As we have already said, section 26, Article VI of the Constitution expressly empowers Congress, in
times of war and other national emergency, to authorize the President to promulgate rules and
regulations to carry out a declared national policy, and therefore it is for the National Assembly to
determine the existence of a particular emergency declare the national policy, and authorize the
President to promulgate rules and regulations of legislative nature to carry out that policy. As the
Commonwealth Act No. 671 that the existence of war between the United States and other countries
of Europe and Asia which involves the Philippines is the emergency which made it necessary for the
National Assembly to invest the President with extraordinary powers to promulgate rules and
regulations to meet the resulting emergency from the actual existence of that war which involved the
Philippines, the President cannot, under said Act No. 671, determine the existence of any other
emergency, such as the state of cold war, the continued military occupation of the enemy country,
and the economic and political instability throughout the world, cited by the respondents, and
promulgate rules and regulations to meet the emergency; because obviously it is not for the delegate
but for the delegation to say when and under what circumstances the former may act in behalf of the
latter, and not vice-versa.

The theory of those who are of the opinion that the President may determine "whether the
emergency which on December 16, 1941, prompted the approval of Commonwealth Act No. 671
delegating extraordinary powers to the President, still existed at the time the Chief Executive
exercised those powers," is predicated upon the erroneous assumption that said Commonwealth Act
No. 671 contemplated any other emergency not expressly mentioned in said Commonwealth Act.
This assumption or premise is obviously wrong. Section 1 of said Act No. 671 expressly states that
"the existence of the war between the United States and other countries of Europe and Asia which
involves the Philippines makes it necessary to invest the President with extraordinary power in order
to meet the resulting emergency." That is the war emergency. Ant it is evident, and therefore no
evidence is requires to prove, that the existence of the war which involved the Philippines had
already ceased before the promulgation of the executive orders in question, or at least, if the last war
has not yet technically terminated in so far as the United States is concerned, it did no longer involve
the Republic of the Philippines since the inauguration of our Republic or independence from the
sovereignty of the United States.

It is untenable to contend that the words "resulting emergency from the existence of the war" as
used in section 1 of Commonwealth Act No. 671 should be construed to mean any emergency
resulting from or that is the effect of the last war, and not the war emergency itself, and that therefore
it is for the President to determine whether at the time of the promulgation of the executive orders
under consideration such emergency still existed, because such contention would make Act No. 671
unconstitutional or violative of the provisions of section 26, Article VI of the Constitution. This
constitutional precept distinguishes war emergency from any other national emergency, such as an
economic depression and others which may be the effect of a war, and empowers the Congress in
times of war and other national emergency, to be determined by Congress itself as we have already
said and shown, to authorize the President, for a limited period that may short or of the same
duration but not longer than that of the emergency, to promulgate rules and regulations to carry out
the policy declared by the Congress in order to meet the emergency. To construe Commonwealth
Act No. 671 as contended would be to leave the determination of the existence of the emergency to
the discretion of the President, because the effects of the war such as those enumerated by the
respondents are not determined or stated in said Act and could not have been foreseen by the
Assembly in enacting said Act; and because it would make the delegation of powers for an in definite
period, since such an emergency may or may not become depression, effect of the first world war,
took place in the year 1929, or about ten years after the cessation of hostilities in the year 1919; and
by no stretch of imagination or intellectual gymnastics may the failure of the Congress to appropriate
funds for the operation of the Government during the period from July 1, 1949 to June 30, 1950, and
to defray the expenses in connection with the holding of the national election on the second Tuesday
of November, 1949, be considered as an emergency resulting from the last war.

In the enactment of emergency police measures, the questions as to whether an emergency

exists is primarily for the legislature to determine. Such determination, although entitled to
great respect, is not conclusive because the courts, in such cases, posses the final authority
to determine whether an emergency in fact exists. (American Jurisprudence, Vol. XI, page
980.).
No case decided by the courts of last resort in the United States may be cited in support of the
proposition that it is for the President to determine whether there exist an emergency in order to
exercise his emergency powers, and "it is not for the judiciary to review the finding of the Executive
in this regard." There is none and there cannot be any. Because, as we have already stated at the
beginning of this opinion, and we are supported by the above quotation from American
Jurisprudence, the power to pass emergency police legislation in the United States may be
exercised only by the legislature in the exercise of the police power of the State, and it can not be
delegated to the Executive because there is no provision in the State and Federal constitutions
authorizing such delegation as we have in section 26, Article VI, of our Constitution. As we have
already said before, the only legislative power which may be delegated to the Executive and other
administrative bodies or officers in the United States is the power to promulgate rules and
regulations of administrative nature, which does not include the exercise of the police power of the
State.

The ruling laid down by the United States Supreme Court in the case of Ludecke vs. Watkins, 92
Law ed., 1883, quoted by the respondents and dissenters in support of the proposition that "only in
case of a manifest abuse of the exercise of powers by a political branch of the government is judicial
interference allowable in order to maintain the supremacy of the Constitution," has no application to
the present case; because the question involved in the present case is not a political but a justiciable
question, while the question in issue in said Ludecke case was the power of the court to review "the
determination of the President in the postwar period that an alien enemy should be deported, even
though active hostilities have ceased," and it was held that it was a political question and, therefore,
was not subject to judicial review.

CONCLUSION

In view of all the foregoing, we have to conclude and declare that the executive orders promulgated
by the President under Commonwealth Act 671 before the date of the adjournment of the regular
session of the Congress on the Philippines in 1946 are valid, because said Commonwealth Act was
then still in force; but the executive orders promulgated after the said date are null and void, because
Commonwealth Act No. 671 had already ceased to be in force in so far as the delegation of powers
was concerned. Therefore, are null and void the Executive Order No. 192 promulgated on December
24, 1948, on the control of exports from the Philippines; the Executive Order No. 225 dated June 15,
1949, appropriating funds for the operation of the Government of the Republic of the Philippines
during the period from July 1, 1949 to June 30, 1950; and the Executive Order No. 226 promulgated
on June 15, 1949, appropriating the sum of six million pesos to defray the expenses in connection
with, and incidental to, the holding of the national election to be held on the second Tuesday of
November, 1949.

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

THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI BANKING
CORPORATION, petitioners,
vs.
JOSE O. VERA, Judge . of the Court of First Instance of Manila, and MARIANO CU
UNJIENG, respondents.

Office of the Solicitor General Tuason and City Fiscal Diaz for the Government.
De Witt, Perkins and Ponce Enrile for the Hongkong and Shanghai Banking Corporation.
Vicente J. Francisco, Feria and La O, Orense and Belmonte, and Gibbs and McDonough for
respondent Cu Unjieng.
No appearance for respondent Judge.

LAUREL, J.:

This is an original action instituted in this court on August 19, 1937, for the issuance of the writ
of certiorari and of prohibition to the Court of First Instance of Manila so that this court may review
the actuations of the aforesaid Court of First Instance in criminal case No. 42649 entitled "The
People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", more particularly the application of
the defendant Mariano Cu Unjieng therein for probation under the provisions of Act No. 4221, and
thereafter prohibit the said Court of First Instance from taking any further action or entertaining
further the aforementioned application for probation, to the end that the defendant Mariano Cu
Unjieng may be forthwith committed to prison in accordance with the final judgment of conviction
rendered by this court in said case (G. R. No. 41200).  1

Petitioners herein, the People of the Philippine and the Hongkong and Shanghai Banking
Corporation, are respectively the plaintiff and the offended party, and the respondent herein Mariano
Cu Unjieng is one of the defendants, in the criminal case entitled "The People of the Philippine
Islands vs. Mariano Cu Unjieng, et al.", criminal case No. 42649 of the Court of First Instance of
Manila and G.R. No. 41200 of this court. Respondent herein, Hon. Jose O. Vera, is the Judge ad
interim of the seventh branch of the Court of First Instance of Manila, who heard the application of
the defendant Mariano Cu Unjieng for probation in the aforesaid criminal case.

The information in the aforesaid criminal case was filed with the Court of First Instance of Manila on
October 15, 1931, petitioner herein Hongkong and Shanghai Banking Corporation intervening in the
case as private prosecutor. After a protracted trial unparalleled in the annals of Philippine
jurisprudence both in the length of time spent by the court as well as in the volume in the testimony
and the bulk of the exhibits presented, the Court of First Instance of Manila, on January 8, 1934,
rendered a judgment of conviction sentencing the defendant Mariano Cu Unjieng to indeterminate
penalty ranging from four years and two months of prision correccional to eight years of prision
mayor, to pay the costs and with reservation of civil action to the offended party, the Hongkong and
Shanghai Banking Corporation. Upon appeal, the court, on March 26, 1935, modified the sentence
to an indeterminate penalty of from five years and six months of prision correccional to seven years,
six months and twenty-seven days of prision mayor, but affirmed the judgment in all other respects.
Mariano Cu Unjieng filed a motion for reconsideration and four successive motions for new trial
which were denied on December 17, 1935, and final judgment was accordingly entered on
December 18, 1935. The defendant thereupon sought to have the case elevated on certiorari to the
Supreme Court of the United States but the latter denied the petition for certiorari in            
November, 1936. This court, on             November 24, 1936, denied the petition subsequently filed
by the defendant for leave to file a second alternative motion for reconsideration or new trial and
thereafter remanded the case to the court of origin for execution of the judgment.

The instant proceedings have to do with the application for probation filed by the herein respondent
Mariano Cu Unjieng on             November 27, 1936, before the trial court, under the provisions of Act
No. 4221 of the defunct Philippine Legislature. Herein respondent Mariano Cu Unjieng states in his
petition, inter alia, that he is innocent of the crime of which he was convicted, that he has no criminal
record and that he would observe good conduct in the future. The Court of First Instance of Manila,
Judge Pedro Tuason presiding, referred the application for probation of the Insular Probation Office
which recommended denial of the same June 18, 1937. Thereafter, the Court of First Instance of
Manila, seventh branch, Judge Jose O. Vera presiding, set the petition for hearing on April 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of probation to the
herein respondent Mariano Cu Unjieng. The private prosecution also filed an opposition on April 5,
1937, alleging, among other things, that Act No. 4221, assuming that it has not been repealed by
section 2 of Article XV of the Constitution, is nevertheless violative of section 1, subsection (1),
Article III of the Constitution guaranteeing equal protection of the laws for the reason that its
applicability is not uniform throughout the Islands and because section 11 of the said Act endows the
provincial boards with the power to make said law effective or otherwise in their respective or
otherwise in their respective provinces. The private prosecution also filed a supplementary
opposition on April 19, 1937, elaborating on the alleged unconstitutionality on Act No. 4221, as an
undue delegation of legislative power to the provincial boards of several provinces (sec. 1, Art. VI,
Constitution). The City Fiscal concurred in the opposition of the private prosecution except with
respect to the questions raised concerning the constitutionality of Act No. 4221.

On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution with a finding
that "las pruebas no han establecido de unamanera concluyente la culpabilidad del peticionario y
que todos los hechos probados no son inconsistentes o incongrentes con su inocencia" and
concludes that the herein respondent Mariano Cu Unjieng "es inocente por duda racional" of the
crime of which he stands convicted by this court in G.R. No. 41200, but denying the latter's petition
for probation for the reason that:

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

social que se han expuesto en el cuerpo de esta resolucion, que hacen al peticionario
acreedor de la misma, una parte de la opinion publica, atizada por los recelos y las
suspicacias, podria levantarse indignada contra un sistema de probacion que permite atisbar
en los procedimientos ordinarios de una causa criminal perturbando la quietud y la eficacia
de las decisiones ya recaidas al traer a la superficie conclusiones enteramente differentes,
en menoscabo del interes publico que demanda el respeto de las leyes y del veredicto
judicial.

On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed an exception to the
resolution denying probation and a notice of intention to file a motion for reconsideration. An
alternative motion for reconsideration or new trial was filed by counsel on July 13, 1937. This was
supplemented by an additional motion for reconsideration submitted on July 14, 1937. The aforesaid
motions were set for hearing on July 31, 1937, but said hearing was postponed at the petition of
counsel for the respondent Mariano Cu Unjieng because a motion for leave to intervene in the case
as amici curiae signed by thirty-three (thirty-four) attorneys had just been filed with the trial court.
Attorney Eulalio Chaves whose signature appears in the aforesaid motion subsequently filed a
petition for leave to withdraw his appearance as amicus curiae on the ground that the motion for
leave to intervene as amici curiae was circulated at a banquet given by counsel for Mariano Cu
Unjieng on the evening of July 30, 1937, and that he signed the same "without mature deliberation
and purely as a matter of courtesy to the person who invited me (him)."

On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial court for the issuance
of an order of execution of the judgment of this court in said case and forthwith to commit the herein
respondent Mariano Cu Unjieng to jail in obedience to said judgment.

On August 7, 1937, the private prosecution filed its opposition to the motion for leave to intervene
as amici curiae aforementioned, asking that a date be set for a hearing of the same and that, at all
events, said motion should be denied with respect to certain attorneys signing the same who were
members of the legal staff of the several counsel for Mariano Cu Unjieng. On August 10, 1937,
herein respondent Judge Jose O. Vera issued an order requiring all parties including the movants for
intervention as amici curiae to appear before the court on August 14, 1937. On the last-mentioned
date, the Fiscal of the City of Manila moved for the hearing of his motion for execution of judgment in
preference to the motion for leave to intervene as amici curiae but, upon objection of counsel for
Mariano Cu Unjieng, he moved for the postponement of the hearing of both motions. The
respondent judge thereupon set the hearing of the motion for execution on August 21, 1937, but
proceeded to consider the motion for leave to intervene as amici curiae as in order. Evidence as to
the circumstances under which said motion for leave to intervene as amici curiae was signed and
submitted to court was to have been heard on August 19, 1937. But at this juncture, herein
petitioners came to this court on extraordinary legal process to put an end to what they alleged was
an interminable proceeding in the Court of First Instance of Manila which fostered "the campaign of
the defendant Mariano Cu Unjieng for delay in the execution of the sentence imposed by this
Honorable Court on him, exposing the courts to criticism and ridicule because of the apparent
inability of the judicial machinery to make effective a final judgment of this court imposed on the
defendant Mariano Cu Unjieng."

The scheduled hearing before the trial court was accordingly suspended upon the issuance of a
temporary restraining order by this court on August 21, 1937.

To support their petition for the issuance of the extraordinary writs of certiorari and prohibition, herein
petitioners allege that the respondent judge has acted without jurisdiction or in excess of his
jurisdiction:

I. Because said respondent judge lacks the power to place respondent Mariano Cu Unjieng under
probation for the following reason:

(1) Under section 11 of Act No. 4221, the said of the Philippine Legislature is made
to apply only to the provinces of the Philippines; it nowhere states that it is to be
made applicable to chartered cities like the City of Manila.

(2) While section 37 of the Administrative Code contains a proviso to the effect that in
the absence of a special provision, the term "province" may be construed to include
the City of Manila for the purpose of giving effect to laws of general application, it is
also true that Act No. 4221 is not a law of general application because it is made to
apply only to those provinces in which the respective provincial boards shall have
provided for the salary of a probation officer.

(3) Even if the City of Manila were considered to be a province, still, Act No. 4221
would not be applicable to it because it has provided for the salary of a probation
officer as required by section 11 thereof; it being immaterial that there is an Insular
Probation Officer willing to act for the City of Manila, said Probation Officer provided
for in section 10 of Act No. 4221 being different and distinct from the Probation
Officer provided for in section 11 of the same Act.

II. Because even if the respondent judge originally had jurisdiction to entertain the application for
probation of the respondent Mariano Cu Unjieng, he nevertheless acted without jurisdiction or in
excess thereof in continuing to entertain the motion for reconsideration and by failing to commit
Mariano Cu Unjieng to prison after he had promulgated his resolution of June 28, 1937, denying
Mariano Cu Unjieng's application for probation, for the reason that:

(1) His jurisdiction and power in probation proceedings is limited by Act No. 4221 to
the granting or denying of applications for probation.
 (2) After he had issued the order denying Mariano Cu Unjieng's petition for probation
on June 28, 1937, it became final and executory at the moment of its rendition.

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

(4) The respondent judge lacks the power to grant a rehearing of said order or to
modify or change the same.

III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent of the crime
for which he was convicted by final judgment of this court, which finding is not only presumptuous
but without foundation in fact and in law, and is furthermore in contempt of this court and a violation
of the respondent's oath of office as ad interim judge of first instance.

IV. Because the respondent judge has violated and continues to violate his duty, which became
imperative when he issued his order of June 28, 1937, denying the application for probation, to
commit his co-respondent to jail.

Petitioners also avers that they have no other plain, speedy and adequate remedy in the ordinary
course of law.

In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and Shanghai
Banking Corporation further contends that Act No. 4221 of the Philippine Legislature providing for a
system of probation for persons eighteen years of age or over who are convicted of crime, is
unconstitutional because it is violative of section 1, subsection (1), Article III, of the Constitution of
the Philippines guaranteeing equal protection of the laws because it confers upon the provincial
board of its province the absolute discretion to make said law operative or otherwise in their
respective provinces, because it constitutes an unlawful and improper delegation to the provincial
boards of the several provinces of the legislative power lodged by the Jones Law (section 8) in the
Philippine Legislature and by the Constitution (section 1, Art. VI) in the National Assembly; and for
the further reason that it gives the provincial boards, in contravention of the Constitution (section 2,
Art. VIII) and the Jones Law (section 28), the authority to enlarge the powers of the Court of First
Instance of different provinces without uniformity. In another supplementary petition dated
September 14, 1937, the Fiscal of the City of Manila, in behalf of one of the petitioners, the People of
the Philippine Islands, concurs for the first time with the issues raised by other petitioner regarding
the constitutionality of Act No. 4221, and on the oral argument held on October 6, 1937, further
elaborated on the theory that probation is a form of reprieve and therefore Act. No. 4221 is an
encroachment on the exclusive power of the Chief Executive to grant pardons and reprieves. On
October 7, 1937, the City Fiscal filed two memorandums in which he contended that Act No. 4221
not only encroaches upon the pardoning power to the executive, but also constitute an unwarranted
delegation of legislative power and a denial of the equal protection of the laws. On October 9, 1937,
two memorandums, signed jointly by the City Fiscal and the Solicitor-General, acting in behalf of the
People of the Philippine Islands, and by counsel for the petitioner, the Hongkong and Shanghai
Banking Corporation, one sustaining the power of the state to impugn the validity of its own laws and
the other contending that Act No. 4221 constitutes an unwarranted delegation of legislative power,
were presented. Another joint memorandum was filed by the same persons on the same day,
October 9, 1937, alleging that Act No. 4221 is unconstitutional because it denies the equal protection
of the laws and constitutes an unlawful delegation of legislative power and, further, that the whole
Act is void: that the Commonwealth is not estopped from questioning the validity of its laws; that the
private prosecution may intervene in probation proceedings and may attack the probation law as
unconstitutional; and that this court may pass upon the constitutional question in prohibition
proceedings.
Respondents in their answer dated August 31, 1937, as well as in their oral argument and
memorandums, challenge each and every one of the foregoing proposition raised by the petitioners.

As special defenses, respondents allege:

(1) That the present petition does not state facts sufficient in law to warrant the
issuance of the writ of certiorari or of prohibition.

(2) That the aforesaid petition is premature because the remedy sought by the
petitioners is the very same remedy prayed for by them before the trial court and was
still pending resolution before the trial court when the present petition was filed with
this court.

(3) That the petitioners having themselves raised the question as to the execution of
judgment before the trial court, said trial court has acquired exclusive jurisdiction to
resolve the same under the theory that its resolution denying probation is
unappealable.

(4) That upon the hypothesis that this court has concurrent jurisdiction with the Court
of First Instance to decide the question as to whether or not the execution will lie, this
court nevertheless cannot exercise said jurisdiction while the Court of First Instance
has assumed jurisdiction over the same upon motion of herein petitioners
themselves.

(5) That upon the procedure followed by the herein petitioners in seeking to deprive
the trial court of its jurisdiction over the case and elevate the proceedings to this
court, should not be tolerated because it impairs the authority and dignity of the trial
court which court while sitting in the probation cases is "a court of limited jurisdiction
but of great dignity."

(6) That under the supposition that this court has jurisdiction to resolve the question
submitted to and pending resolution by the trial court, the present action would not lie
because the resolution of the trial court denying probation is appealable; for although
the Probation Law does not specifically provide that an applicant for probation may
appeal from a resolution of the Court of First Instance denying probation, still it is a
general rule in this jurisdiction that a final order, resolution or decision of an inferior
court is appealable to the superior court.

(7) That the resolution of the trial court denying probation of herein respondent
Mariano Cu Unjieng being appealable, the same had not become final and executory
for the reason that the said respondent had filed an alternative motion for
reconsideration and new trial within the requisite period of fifteen days, which motion
the trial court was able to resolve in view of the restraining order improvidently and
erroneously issued by this court. lawphi1 .net

(8) That the Fiscal of the City of Manila had by implication admitted that the
resolution of the trial court denying probation is not final and unappealable when he
presented his answer to the motion for reconsideration and agreed to the
postponement of the hearing of the said motion.
 (9) That under the supposition that the order of the trial court denying probation is not
appealable, it is incumbent upon the accused to file an action for the issuance of the
writ of certiorari with mandamus, it appearing that the trial court, although it believed
that the accused was entitled to probation, nevertheless denied probation for fear of
criticism because the accused is a rich man; and that, before a petition
for certiorari grounded on an irregular exercise of jurisdiction by the trial court could
lie, it is incumbent upon the petitioner to file a motion for reconsideration specifying
the error committed so that the trial court could have an opportunity to correct or cure
the same.

(10) That on hypothesis that the resolution of this court is not appealable, the trial
court retains its jurisdiction within a reasonable time to correct or modify it in
accordance with law and justice; that this power to alter or modify an order or
resolution is inherent in the courts and may be exercise either motu proprio or upon
petition of the proper party, the petition in the latter case taking the form of a motion
for reconsideration.

(11) That on the hypothesis that the resolution of the trial court is appealable as
respondent allege, said court cannot order execution of the same while it is on
appeal, for then the appeal would not be availing because the doors of probation will
be closed from the moment the accused commences to serve his sentence (Act No.
4221, sec. 1; U.S. vs. Cook, 19 Fed. [2d], 827).

In their memorandums filed on October 23, 1937, counsel for the respondents maintain that Act No.
4221 is constitutional because, contrary to the allegations of the petitioners, it does not constitute an
undue delegation of legislative power, does not infringe the equal protection clause of the
Constitution, and does not encroach upon the pardoning power of the Executive. In an additional
memorandum filed on the same date, counsel for the respondents reiterate the view that section 11
of Act No. 4221 is free from constitutional objections and contend, in addition, that the private
prosecution may not intervene in probation proceedings, much less question the validity of Act No.
4221; that both the City Fiscal and the Solicitor-General are estopped from questioning the validity of
the Act; that the validity of Act cannot be attacked for the first time before this court; that probation in
unavailable; and that, in any event, section 11 of the Act No. 4221 is separable from the rest of the
Act. The last memorandum for the respondent Mariano Cu Unjieng was denied for having been filed
out of time but was admitted by resolution of this court and filed anew on             November 5, 1937.
This memorandum elaborates on some of the points raised by the respondents and refutes those
brought up by the petitioners.

In the scrutiny of the pleadings and examination of the various aspects of the present case, we
noted that the court below, in passing upon the merits of the application of the respondent Mariano
Cu Unjieng and in denying said application assumed the task not only of considering the merits of
the application, but of passing upon the culpability of the applicant, notwithstanding the final
pronouncement of guilt by this court. (G.R. No. 41200.) Probation implies guilt be final judgment.
While a probation case may look into the circumstances attending the commission of the offense,
this does not authorize it to reverse the findings and conclusive of this court, either directly or
indirectly, especially wherefrom its own admission reliance was merely had on the printed briefs,
averments, and pleadings of the parties. As already observed by this court in Shioji vs.
Harvey ([1922], 43 Phil., 333, 337), and reiterated in subsequent cases, "if each and every Court of
First Instance could enjoy the privilege of overruling decisions of the Supreme Court, there would be
no end to litigation, and judicial chaos would result." A becoming modesty of inferior courts demands
conscious realization of the position that they occupy in the interrelation and operation of the
intergrated judicial system of the nation.
After threshing carefully the multifarious issues raised by both counsel for the petitioners and the
respondents, this court prefers to cut the Gordian knot and take up at once the two fundamental
questions presented, namely, (1) whether or not the constitutionality of Act No. 4221 has been
properly raised in these proceedings; and (2) in the affirmative, whether or not said Act is
constitutional. Considerations of these issues will involve a discussion of certain incidental questions
raised by the parties.

To arrive at a correct conclusion on the first question, resort to certain guiding principles is
necessary. It is a well-settled rule that the constitutionality of an act of the legislature will not be
determined by the courts unless that question is properly raised and presented inappropriate cases
and is necessary to a determination of the case; i.e., the issue of constitutionality must be the
very lis mota presented. (McGirr vs. Hamilton and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L., pp.
76, 77; 12 C. J., pp. 780-782, 783.)

The question of the constitutionality of an act of the legislature is frequently raised in ordinary
actions. Nevertheless, resort may be made to extraordinary legal remedies, particularly where the
remedies in the ordinary course of law even if available, are not plain, speedy and adequate. Thus,
in Cu Unjieng vs. Patstone ([1922]), 42 Phil., 818), this court held that the question of the
constitutionality of a statute may be raised by the petitioner in mandamus proceedings (see, also, 12
C. J., p. 783); and in Government of the Philippine Islands vs. Springer ([1927], 50 Phil., 259
[affirmed in Springer vs. Government of the Philippine Islands (1928), 277 U. S., 189; 72 Law. ed.,
845]), this court declared an act of the legislature unconstitutional in an action of quo
warranto brought in the name of the Government of the Philippines. It has also been held that the
constitutionality of a statute may be questioned in habeas corpus proceedings (12 C. J., p. 783;
Bailey on Habeas Corpus, Vol. I, pp. 97, 117), although there are authorities to the contrary; on an
application for injunction to restrain action under the challenged statute (mandatory, see Cruz vs.
Youngberg [1931], 56 Phil., 234); and even on an application for preliminary injunction where the
determination of the constitutional question is necessary to a decision of the case. (12 C. J., p. 783.)
The same may be said as regards prohibition and certiorari.(Yu Cong Eng vs. Trinidad [1925], 47
Phil., 385; [1926], 271 U. S., 500; 70 Law. ed., 1059; Bell vs. First Judicial District Court [1905], 28
Nev., 280; 81 Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982; 1 L. R. A. [N. S], 843, and cases cited).
The case of Yu Cong Eng vs. Trinidad, supra, decided by this court twelve years ago was, like the
present one, an original action for certiorari and prohibition. The constitutionality of Act No. 2972,
popularly known as the Chinese Bookkeeping Law, was there challenged by the petitioners, and the
constitutional issue was not met squarely by the respondent in a demurrer. A point was raised
"relating to the propriety of the constitutional question being decided in original proceedings in
prohibition." This court decided to take up the constitutional question and, with two justices
dissenting, held that Act No. 2972 was constitutional. The case was elevated on writ of certiorari to
the Supreme Court of the United States which reversed the judgment of this court and held that the
Act was invalid. (271 U. S., 500; 70 Law. ed., 1059.) On the question of jurisdiction, however, the
Federal Supreme Court, though its Chief Justice, said:

By the Code of Civil Procedure of the Philippine Islands, section 516, the Philippine supreme
court is granted concurrent jurisdiction in prohibition with courts of first instance over inferior
tribunals or persons, and original jurisdiction over courts of first instance, when such courts
are exercising functions without or in excess of their jurisdiction. It has been held by that
court that the question of the validity of the criminal statute must usually be raised by a
defendant in the trial court and be carried regularly in review to the Supreme Court.
(Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192). But in this case where a
new act seriously affected numerous persons and extensive property rights, and was likely to
cause a multiplicity of actions, the Supreme Court exercised its discretion to bring the issue
to the act's validity promptly before it and decide in the interest of the orderly administration
of justice. The court relied by analogy upon the cases of Ex parte Young (209 U. S., 123;52
 Law ed., 714; 13 L. R. A. [N. S.] 932; 28 Sup. Ct. Rep., 441; 14 Ann. Ca., 764; Traux vs.
Raich, 239 U. S., 33; 60 Law. ed., 131; L. R. A. 1916D, 545; 36 Sup. Ct. Rep., 7; Ann. Cas.,
1917B, 283; and Wilson vs. New, 243 U. S., 332; 61 Law. ed., 755; L. R. A. 1917E, 938; 37
Sup. Ct. Rep., 298; Ann. Cas. 1918A, 1024). Although objection to the jurisdiction was raise
by demurrer to the petition, this is now disclaimed on behalf of the respondents, and both
parties ask a decision on the merits. In view of the broad powers in prohibition granted to
that court under the Island Code, we acquiesce in the desire of the parties.

The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction
and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a
jurisdiction with which it is not legally vested. (High, Extraordinary Legal Remedies, p. 705.) The
general rule, although there is a conflict in the cases, is that the merit of prohibition will not lie
whether the inferior court has jurisdiction independent of the statute the constitutionality of which is
questioned, because in such cases the interior court having jurisdiction may itself determine the
constitutionality of the statute, and its decision may be subject to review, and consequently the
complainant in such cases ordinarily has adequate remedy by appeal without resort to the writ of
prohibition. But where the inferior court or tribunal derives its jurisdiction exclusively from an
unconstitutional statute, it may be prevented by the writ of prohibition from enforcing that statute. (50
C. J., 670; Ex parte Round tree [1874, 51 Ala., 42; In re Macfarland, 30 App. [D. C.], 365; Curtis vs.
Cornish [1912], 109 Me., 384; 84 A., 799; Pennington vs. Woolfolk [1880], 79 Ky., 13; State vs.
Godfrey [1903], 54 W. Va., 54; 46 S. E., 185; Arnold vs. Shields [1837], 5 Dana, 19; 30 Am. Dec.,
669.)

Courts of First Instance sitting in probation proceedings derived their jurisdiction solely from Act No.
4221 which prescribes in detailed manner the procedure for granting probation to accused persons
after their conviction has become final and before they have served their sentence. It is true that at
common law the authority of the courts to suspend temporarily the execution of the sentence is
recognized and, according to a number of state courts, including those of Massachusetts, Michigan,
New York, and Ohio, the power is inherent in the courts (Commonwealth vs. Dowdican's Bail [1874],
115 Mass., 133; People vs. Stickel [1909], 156 Mich., 557; 121 N. W., 497; People ex rel. Forsyth vs.
Court of Session [1894], 141 N. Y., 288; Weber vs. State [1898], 58 Ohio St., 616). But, in the
leading case of Ex parte United States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E,
1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the Supreme Court of the United States
expressed the opinion that under the common law the power of the court was limited to temporary
suspension, and brushed aside the contention as to inherent judicial power saying, through Chief
Justice White:

Indisputably under our constitutional system the right to try offenses against the criminal laws
and upon conviction to impose the punishment provided by law is judicial, and it is equally to
be conceded that, in exerting the powers vested in them on such subject, courts inherently
possess ample right to exercise reasonable, that is, judicial, discretion to enable them to
wisely exert their authority. But these concessions afford no ground for the contention as to
power here made, since it must rest upon the proposition that the power to enforce begets
inherently a discretion to permanently refuse to do so. And the effect of the proposition urged
upon the distribution of powers made by the Constitution will become apparent when it is
observed that indisputable also is it that the authority to define and fix the punishment for
crime is legislative and includes the right in advance to bring within judicial discretion, for the
purpose of executing the statute, elements of consideration which would be otherwise
beyond the scope of judicial authority, and that the right to relieve from the punishment, fixed
by law and ascertained according to the methods by it provided belongs to the executive
department.
Justice Carson, in his illuminating concurring opinion in the case of Director of Prisons vs. Judge of
First Instance of Cavite (29 Phil., 265), decided by this court in 1915, also reached the conclusion
that the power to suspend the execution of sentences pronounced in criminal cases is not inherent in
the judicial function. "All are agreed", he said, "that in the absence of statutory authority, it does not
lie within the power of the courts to grant such suspensions." (at p. 278.) Both petitioner and
respondents are correct, therefore, when they argue that a Court of First Instance sitting in probation
proceedings is a court of limited jurisdiction. Its jurisdiction in such proceedings is conferred
exclusively by Act No. 4221 of the Philippine Legislature.

It is, of course, true that the constitutionality of a statute will not be considered on application for
prohibition where the question has not been properly brought to the attention of the court by
objection of some kind (Hill vs. Tarver [1901], 130 Ala., 592; 30 S., 499; State ex rel. Kelly vs. Kirby
[1914], 260 Mo., 120; 168 S. W., 746). In the case at bar, it is unquestionable that the constitutional
issue has been squarely presented not only before this court by the petitioners but also before the
trial court by the private prosecution. The respondent, Hon. Jose O Vera, however, acting as judge
of the court below, declined to pass upon the question on the ground that the private prosecutor, not
being a party whose rights are affected by the statute, may not raise said question. The respondent
judge cited Cooley on Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762),
and McGlue vs. Essex County ([1916], 225 Mass., 59; 113 N. E., 742, 743), as authority for the
proposition that a court will not consider any attack made on the constitutionality of a statute by one
who has no interest in defeating it because his rights are not affected by its operation. The
respondent judge further stated that it may not motu proprio take up the constitutional question and,
agreeing with Cooley that "the power to declare a legislative enactment void is one which the judge,
conscious of the fallibility of the human judgment, will shrink from exercising in any case where he
can conscientiously and with due regard to duty and official oath decline the responsibility"
(Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded on the assumption that Act No. 4221 is
constitutional. While therefore, the court a quo admits that the constitutional question was raised
before it, it refused to consider the question solely because it was not raised by a proper party.
Respondents herein reiterates this view. The argument is advanced that the private prosecution has
no personality to appear in the hearing of the application for probation of defendant Mariano Cu
Unjieng in criminal case No. 42648 of the Court of First Instance of Manila, and hence the issue of
constitutionality was not properly raised in the lower court. Although, as a general rule, only those
who are parties to a suit may question the constitutionality of a statute involved in a judicial decision,
it has been held that since the decree pronounced by a court without jurisdiction is void, where the
jurisdiction of the court depends on the validity of the statute in question, the issue of the
constitutionality will be considered on its being brought to the attention of the court by persons
interested in the effect to be given the statute.(12 C. J., sec. 184, p. 766.) And, even if we were to
concede that the issue was not properly raised in the court below by the proper party, it does not
follow that the issue may not be here raised in an original action of certiorari and prohibitions. It is
true that, as a general rule, the question of constitutionality must be raised at the earliest opportunity,
so that if not raised by the pleadings, ordinarily it may not be raised at the trial, and if not raised in
the trial court, it will not considered on appeal. (12 C. J., p. 786. See, also, Cadwallader-Gibson
Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule admits
of exceptions. Courts, in the exercise of sounds discretion, may determine the time when a question
affecting the constitutionality of a statute should be presented. (In re Woolsey [1884], 95 N. Y., 135,
144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is said that the
question may be raised for the first time at any stage of the proceedings, either in the trial court or on
appeal. (12 C. J., p. 786.) Even in civil cases, it has been held that it is the duty of a court to pass on
the constitutional question, though raised for the first time on appeal, if it appears that a
determination of the question is necessary to a decision of the case. (McCabe's Adm'x vs. Maysville
& B. S. R. Co., [1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis Cordage Co. [1908],
214 Mo., 685; 113 S. W. 1108; Carmody vs. St. Louis Transit Co., [1905], 188 Mo., 572; 87 S. W.,
913.) And it has been held that a constitutional question will be considered by an appellate court at
any time, where it involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561;
57 S., 870.) As to the power of this court to consider the constitutional question raised for the first
time before this court in these proceedings, we turn again and point with emphasis to the case of Yu
Cong Eng vs. Trinidad, supra. And on the hypotheses that the Hongkong & Shanghai Banking
Corporation, represented by the private prosecution, is not the proper party to raise the constitutional
question here — a point we do not now have to decide — we are of the opinion that the People of
the Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila, is such a
proper party in the present proceedings. The unchallenged rule is that the person who impugns the
validity of a statute must have a personal and substantial interest in the case such that he has
sustained, or will sustained, direct injury as a result of its enforcement. It goes without saying that if
Act No. 4221 really violates the constitution, the People of the Philippines, in whose name the
present action is brought, has a substantial interest in having it set aside. Of grater import than the
damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the
fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that the state
can challenge the validity of its own laws. In Government of the Philippine Islands vs. Springer
([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the Philippine Islands [1928], 277
U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature unconstitutional in an action
instituted in behalf of the Government of the Philippines. In Attorney General vs. Perkins ([1889], 73
Mich., 303, 311, 312; 41 N. W. 426, 428, 429), the State of Michigan, through its Attorney General,
instituted quo warranto proceedings to test the right of the respondents to renew a mining
corporation, alleging that the statute under which the respondents base their right was
unconstitutional because it impaired the obligation of contracts. The capacity of the chief law officer
of the state to question the constitutionality of the statute was though, as a general rule, only those
who are parties to a suit may question the constitutionality of a statute involved in a judicial decision,
it has been held that since the decree pronounced by a court without jurisdiction in void, where the
jurisdiction of the court depends on the validity of the statute in question, the issue of constitutionality
will be considered on its being brought to the attention of the court by persons interested in the effect
to begin the statute. (12 C.J., sec. 184, p. 766.) And, even if we were to concede that the issue was
not properly raised in the court below by the proper party, it does not follow that the issue may not be
here raised in an original action of certiorari and prohibition. It is true that, as a general rule, the
question of constitutionality must be raised at the earliest opportunity, so that if not raised by the
pleadings, ordinarily it may not be raised a the trial, and if not raised in the trial court, it will not be
considered on appeal. (12 C.J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario,
26 Phil., 192, 193-195.) But we must state that the general rule admits of exceptions. Courts, in the
exercise of sound discretion, may determine the time when a question affecting the constitutionality
of a statute should be presented. (In re Woolsey [19884], 95 N.Y., 135, 144.) Thus, in criminal
cases, although there is a very sharp conflict of authorities, it is said that the question may be raised
for the first time at any state of the proceedings, either in the trial court or on appeal. (12 C.J., p.
786.) Even in civil cases, it has been held that it is the duty of a court to pass on the constitutional
question, though raised for first time on appeal, if it appears that a determination of the question is
necessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910], 136 Ky.,
674; 124 S. W., 892; Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo. 685; 113 S. W., 1108;
Carmody vs. St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a
constitutional question will be considered by an appellate court at any time, where it involves the
jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of
this court to consider the constitutional question raised for the first time before this court in these
proceedings, we turn again and point with emphasis to the case of Yu Cong Eng. vs. Trinidad,
supra. And on the hypothesis that the Hongkong & Shanghai Banking Corporation, represented by
the private prosecution, is not the proper party to raise the constitutional question here — a point we
do not now have to decide — we are of the opinion that the People of the Philippines, represented
by the Solicitor-General and the Fiscal of the City of Manila, is such a proper party in the present
proceedings. The unchallenged rule is that the person who impugns the validity of a statute must
have a personal and substantial interest in the case such that he has sustained, or will sustain, direct
injury as a result of its enforcement. It goes without saying that if Act No. 4221 really violates the
Constitution, the People of the Philippines, in whose name the present action is brought, has a
substantial interest in having it set aside. Of greater import than the damage caused by the illegal
expenditure of public funds is the mortal wound inflicted upon the fundamental law by the
enforcement of an invalid statute. Hence, the well-settled rule that the state can challenge the
validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259
(affirmed in Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed.,
845), this court declared an act of the legislature unconstitutional in an action instituted in behalf of
the Government of the Philippines. In Attorney General vs. Perkings([1889], 73 Mich., 303, 311, 312;
41 N.W., 426, 428, 429), the State of Michigan, through its Attorney General, instituted quo warranto
proceedings to test the right of the respondents to renew a mining corporation, alleging that the
statute under which the respondents base their right was unconstitutional because it impaired the
obligation of contracts. The capacity of the chief law officer of the state to question the
constitutionality of the statute was itself questioned. Said the Supreme Court of Michigan, through
Champlin, J.:

. . . The idea seems to be that the people are estopped from questioning the validity of a law
enacted by their representatives; that to an accusation by the people of Michigan of
usurpation their government, a statute enacted by the people of Michigan is an adequate
answer. The last proposition is true, but, if the statute relied on in justification is
unconstitutional, it is statute only in form, and lacks the force of law, and is of no more saving
effect to justify action under it than if it had never been enacted. The constitution is the
supreme law, and to its behests the courts, the legislature, and the people must bow . . . The
legislature and the respondents are not the only parties in interest upon such constitutional
questions. As was remarked by Mr. Justice Story, in speaking of an acquiescence by a party
affected by an unconstitutional act of the legislature: "The people have a deep and vested
interest in maintaining all the constitutional limitations upon the exercise of legislative
powers." (Allen vs. Mckeen, 1 Sum., 314.)

In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action (mandamus) was
brought by the Attorney-General of Kansas to test the constitutionality of a statute of the state. In
disposing of the question whether or not the state may bring the action, the Supreme Court of
Kansas said:

. . . the state is a proper party — indeed, the proper party — to bring this action. The state is
always interested where the integrity of its Constitution or statutes is involved.

"It has an interest in seeing that the will of the Legislature is not disregarded,
and need not, as an individual plaintiff must, show grounds of fearing more
specific injury. (State vs. Kansas City 60 Kan., 518 [57 Pac., 118])." (State vs.
Lawrence, 80 Kan., 707; 103 Pac., 839.)

Where the constitutionality of a statute is in doubt the state's law officer, its Attorney-General,
or county attorney, may exercise his bet judgment as to what sort of action he will bring to
have the matter determined, either by quo warranto to challenge its validity (State vs.
Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662), by mandamus to compel obedience
to its terms (State vs. Dolley, 82 Kan., 533; 108 Pac., 846), or by injunction to restrain
proceedings under its questionable provisions (State ex rel. vs. City of Neodesha, 3 Kan.
App., 319; 45 Pac., 122).

Other courts have reached the same conclusion (See State vs. St. Louis S. W. Ry. Co. [1917], 197
S. W., 1006; State vs. S.H. Kress & Co. [1934], 155 S., 823; State vs. Walmsley [1935], 181 La.,
597; 160 S., 91; State vs. Board of County Comr's [1934], 39 Pac. [2d], 286; First Const. Co. of
Brooklyn vs. State [1917], 211 N.Y., 295; 116 N.E., 1020; Bush vs. State {1918], 187 Ind., 339; 119
N.E., 417; State vs. Watkins [1933], 176 La., 837; 147 S., 8, 10, 11). In the case last cited, the
Supreme Court of Luisiana said:

It is contended by counsel for Herbert Watkins that a district attorney, being charged with the
duty of enforcing the laws, has no right to plead that a law is unconstitutional. In support of
the argument three decisions are cited, viz.: State ex rel. Hall, District Attorney, vs. Judge of
Tenth Judicial District (33 La. Ann., 1222); State ex rel. Nicholls, Governor vs. Shakespeare,
Mayor of New Orleans (41 Ann., 156; 6 So., 592); and State ex rel., Banking Co., etc. vs.
Heard, Auditor (47 La. Ann., 1679; 18 So., 746; 47 L. R. A., 512). These decisions do not
forbid a district attorney to plead that a statute is unconstitutional if he finds if in conflict with
one which it is his duty to enforce. In State ex rel. Hall, District Attorney, vs. Judge, etc., the
ruling was the judge should not, merely because he believed a certain statute to be
unconstitutional forbid the district attorney to file a bill of information charging a person with a
violation of the statute. In other words, a judge should not judicially declare a statute
unconstitutional until the question of constitutionality is tendered for decision, and unless it
must be decided in order to determine the right of a party litigant. State ex rel. Nicholls,
Governor, etc., is authority for the proposition merely that an officer on whom a statute
imposes the duty of enforcing its provisions cannot avoid the duty upon the ground that he
considers the statute unconstitutional, and hence in enforcing the statute he is immune from
responsibility if the statute be unconstitutional. State ex rel. Banking Co., etc., is authority for
the proposition merely that executive officers, e.g., the state auditor and state treasurer,
should not decline to perform ministerial duties imposed upon them by a statute, on the
ground that they believe the statute is unconstitutional.

It is the duty of a district attorney to enforce the criminal laws of the state, and, above all, to
support the Constitution of the state. If, in the performance of his duty he finds two statutes in
conflict with each other, or one which repeals another, and if, in his judgment, one of the two
statutes is unconstitutional, it is his duty to enforce the other; and, in order to do so, he is
compelled to submit to the court, by way of a plea, that one of the statutes is
unconstitutional. If it were not so, the power of the Legislature would be free from
constitutional limitations in the enactment of criminal laws.

The respondents do not seem to doubt seriously the correctness of the general proposition that the
state may impugn the validity of its laws. They have not cited any authority running clearly in the
opposite direction. In fact, they appear to have proceeded on the assumption that the rule as stated
is sound but that it has no application in the present case, nor may it be invoked by the City Fiscal in
behalf of the People of the Philippines, one of the petitioners herein, the principal reasons being that
the validity before this court, that the City Fiscal is estopped from attacking the validity of the Act
and, not authorized challenge the validity of the Act in its application outside said city. (Additional
memorandum of respondents, October 23, 1937, pp. 8,. 10, 17 and 23.)

The mere fact that the Probation Act has been repeatedly relied upon the past and all that time has
not been attacked as unconstitutional by the Fiscal of Manila but, on the contrary, has been impliedly
regarded by him as constitutional, is no reason for considering the People of the Philippines
estopped from nor assailing its validity. For courts will pass upon a constitutional questions only
when presented before it in bona fide cases for determination, and the fact that the question has not
been raised before is not a valid reason for refusing to allow it to be raised later. The fiscal and all
others are justified in relying upon the statute and treating it as valid until it is held void by the courts
in proper cases.
It remains to consider whether the determination of the constitutionality of Act No. 4221 is necessary
to the resolution of the instant case. For, ". . . while the court will meet the question with firmness,
where its decision is indispensable, it is the part of wisdom, and just respect for the legislature,
renders it proper, to waive it, if the case in which it arises, can be decided on other points." (Ex
parte Randolph [1833], 20 F. Cas. No. 11, 558; 2 Brock., 447. Vide, also Hoover vs. wood [1857], 9
Ind., 286, 287.) It has been held that the determination of a constitutional question is necessary
whenever it is essential to the decision of the case (12 C. J., p. 782, citing Long Sault Dev. Co. vs.
Kennedy [1913], 158 App. Div., 398; 143 N. Y. Supp., 454 [aff. 212 N.Y., 1: 105 N. E., 849; Ann.
Cas. 1915D, 56; and app dism 242 U.S., 272]; Hesse vs. Ledesma, 7 Porto Rico Fed., 520; Cowan
vs. Doddridge, 22 Gratt [63 Va.], 458; Union Line Co., vs. Wisconsin R. Commn., 146 Wis., 523; 129
N. W., 605), as where the right of a party is founded solely on a statute the validity of which is
attacked. (12 C.J., p. 782, citing Central Glass Co. vs. Niagrara F. Ins. Co., 131 La., 513; 59 S., 972;
Cheney vs. Beverly, 188 Mass., 81; 74 N.E., 306). There is no doubt that the respondent Cu Unjieng
draws his privilege to probation solely from Act No. 4221 now being assailed.

Apart from the foregoing considerations, that court will also take cognizance of the fact that the
Probation Act is a new addition to our statute books and its validity has never before been passed
upon by the courts; that may persons accused and convicted of crime in the City of Manila have
applied for probation; that some of them are already on probation; that more people will likely take
advantage of the Probation Act in the future; and that the respondent Mariano Cu Unjieng has been
at large for a period of about four years since his first conviction. All wait the decision of this court on
the constitutional question. Considering, therefore, the importance which the instant case has
assumed and to prevent multiplicity of suits, strong reasons of public policy demand that the
constitutionality of Act No. 4221 be now resolved. (Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385;
[1926], 271 U.S., 500; 70 Law. ed., 1059. See 6 R.C.L., pp. 77, 78; People vs. Kennedy [1913], 207
N.Y., 533; 101 N.E., 442, 444; Ann. Cas. 1914C, 616; Borginis vs. Falk Co. [1911], 147 Wis., 327;
133 N.W., 209, 211; 37 L.R.A. [N.S.] 489; Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil.,
304.) In Yu Cong Eng vs. Trinidad, supra, an analogous situation confronted us. We said: "Inasmuch
as the property and personal rights of nearly twelve thousand merchants are affected by these
proceedings, and inasmuch as Act No. 2972 is a new law not yet interpreted by the courts, in the
interest of the public welfare and for the advancement of public policy, we have determined to
overrule the defense of want of jurisdiction in order that we may decide the main issue. We have
here an extraordinary situation which calls for a relaxation of the general rule." Our ruling on this
point was sustained by the Supreme Court of the United States. A more binding authority in support
of the view we have taken can not be found.

We have reached the conclusion that the question of the constitutionality of Act No. 4221 has been
properly raised. Now for the main inquiry: Is the Act unconstitutional?

Under a doctrine peculiarly American, it is the office and duty of the judiciary to enforce the
Constitution. This court, by clear implication from the provisions of section 2, subsection 1, and
section 10, of Article VIII of the Constitution, may declare an act of the national legislature invalid
because in conflict with the fundamental lay. It will not shirk from its sworn duty to enforce the
Constitution. And, in clear cases, it will not hesitate to give effect to the supreme law by setting aside
a statute in conflict therewith. This is of the essence of judicial duty.

This court is not unmindful of the fundamental criteria in cases of this nature that all reasonable
doubts should be resolved in favor of the constitutionality of a statute. An act of the legislature
approved by the executive, is presumed to be within constitutional limitations. The responsibility of
upholding the Constitution rests not on the courts alone but on the legislature as well. "The question
of the validity of every statute is first determined by the legislative department of the government
itself." (U.S. vs. Ten Yu [1912], 24 Phil., 1, 10; Case vs. Board of Health and Heiser [1913], 24 Phil.,
250, 276; U.S. vs. Joson [1913], 26 Phil., 1.) And a statute finally comes before the courts sustained
by the sanction of the executive. The members of the Legislature and the Chief Executive have
taken an oath to support the Constitution and it must be presumed that they have been true to this
oath and that in enacting and sanctioning a particular law they did not intend to violate the
Constitution. The courts cannot but cautiously exercise its power to overturn the solemn declarations
of two of the three grand departments of the governments. (6 R.C.L., p. 101.) Then, there is that
peculiar political philosophy which bids the judiciary to reflect the wisdom of the people as expressed
through an elective Legislature and an elective Chief Executive. It follows, therefore, that the courts
will not set aside a law as violative of the Constitution except in a clear case. This is a proposition
too plain to require a citation of authorities.

One of the counsel for respondents, in the course of his impassioned argument, called attention to
the fact that the President of the Philippines had already expressed his opinion against the
constitutionality of the Probation Act, adverting that as to the Executive the resolution of this question
was a foregone conclusion. Counsel, however, reiterated his confidence in the integrity and
independence of this court. We take notice of the fact that the President in his message dated
September 1, 1937, recommended to the National Assembly the immediate repeal of the Probation
Act (No. 4221); that this message resulted in the approval of Bill No. 2417 of the Nationality
Assembly repealing the probation Act, subject to certain conditions therein mentioned; but that said
bill was vetoed by the President on September 13, 1937, much against his wish, "to have stricken
out from the statute books of the Commonwealth a law . . . unfair and very likely unconstitutional." It
is sufficient to observe in this connection that, in vetoing the bill referred to, the President exercised
his constitutional prerogative. He may express the reasons which he may deem proper for taking
such a step, but his reasons are not binding upon us in the determination of actual controversies
submitted for our determination. Whether or not the Executive should express or in any manner
insinuate his opinion on a matter encompassed within his broad constitutional power of veto but
which happens to be at the same time pending determination in this court is a question of propriety
for him exclusively to decide or determine. Whatever opinion is expressed by him under these
circumstances, however, cannot sway our judgment on way or another and prevent us from taking
what in our opinion is the proper course of action to take in a given case. It if is ever necessary for us
to make any vehement affirmance during this formative period of our political history, it is that we are
independent of the Executive no less than of the Legislative department of our government —
independent in the performance of our functions, undeterred by any consideration, free from politics,
indifferent to popularity, and unafraid of criticism in the accomplishment of our sworn duty as we see
it and as we understand it.

The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That said Act
encroaches upon the pardoning power of the Executive; (2) that its constitutes an undue delegation
of legislative power and (3) that it denies the equal protection of the laws.

1. Section 21 of the Act of Congress of August 29, 1916, commonly known as the Jones Law, in
force at the time of the approval of Act No. 4221, otherwise known as the Probation Act, vests in the
Governor-General of the Philippines "the exclusive power to grant pardons and reprieves and remit
fines and forfeitures". This power is now vested in the President of the Philippines. (Art. VII, sec. 11,
subsec. 6.) The provisions of the Jones Law and the Constitution differ in some respects. The
adjective "exclusive" found in the Jones Law has been omitted from the Constitution. Under the
Jones Law, as at common law, pardon could be granted any time after the commission of the
offense, either before or after conviction (Vide Constitution of the United States, Art. II, sec. 2; In
re Lontok [1922], 43 Phil., 293). The Governor-General of the Philippines was thus empowered, like
the President of the United States, to pardon a person before the facts of the case were fully brought
to light. The framers of our Constitution thought this undesirable and, following most of the state
constitutions, provided that the pardoning power can only be exercised "after conviction". So, too,
under the new Constitution, the pardoning power does not extend to "cases of impeachment". This is
also the rule generally followed in the United States (Vide Constitution of the United States, Art. II,
sec. 2). The rule in England is different. There, a royal pardon can not be pleaded in bar of an
impeachment; "but," says Blackstone, "after the impeachment has been solemnly heard and
determined, it is not understood that the king's royal grace is further restrained or abridged." (Vide,
Ex parte Wells [1856], 18 How., 307; 15 Law. ed., 421; Com. vs. Lockwood [1872], 109 Mass., 323;
12 Am. Rep., 699; Sterling vs. Drake [1876], 29 Ohio St., 457; 23 am. Rep., 762.) The reason for the
distinction is obvious. In England, Judgment on impeachment is not confined to mere "removal from
office and disqualification to hold and enjoy any office of honor, trust, or profit under the
Government" (Art. IX, sec. 4, Constitution of the Philippines) but extends to the whole punishment
attached by law to the offense committed. The House of Lords, on a conviction may, by its sentence,
inflict capital punishment, perpetual banishment, perpetual banishment, fine or imprisonment,
depending upon the gravity of the offense committed, together with removal from office and
incapacity to hold office. (Com. vs. Lockwood, supra.) Our Constitution also makes specific mention
of "commutation" and of the power of the executive to impose, in the pardons he may grant, such
conditions, restrictions and limitations as he may deem proper. Amnesty may be granted by the
President under the Constitution but only with the concurrence of the National Assembly. We need
not dwell at length on the significance of these fundamental changes. It is sufficient for our purposes
to state that the pardoning power has remained essentially the same. The question is: Has the
pardoning power of the Chief Executive under the Jones Law been impaired by the Probation Act?

As already stated, the Jones Law vests the pardoning power exclusively in the Chief Executive. The
exercise of the power may not, therefore, be vested in anyone else.
". . . The benign prerogative of mercy reposed in the executive cannot be taken away nor fettered by
any legislative restrictions, nor can like power be given by the legislature to any other officer or
authority. The coordinate departments of government have nothing to do with the pardoning power,
since no person properly belonging to one of the departments can exercise any powers appertaining
to either of the others except in cases expressly provided for by the constitution." (20 R.C.L., pp., ,
and cases cited.) " . . . where the pardoning power is conferred on the executive without express or
implied limitations, the grant is exclusive, and the legislature can neither exercise such power itself
nor delegate it elsewhere, nor interfere with or control the proper exercise thereof, . . ." (12 C.J., pp.
838, 839, and cases cited.) If Act No. 4221, then, confers any pardoning power upon the courts it is
for that reason unconstitutional and void. But does it?

In the famous Killitts decision involving an embezzlement case, the Supreme Court of the United
States ruled in 1916 that an order indefinitely suspending sentenced was void. (Ex parte United
States [1916], 242 U.S., 27; 61 Law. ed., 129; L.R.A. 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas.
1917B, 355.) Chief Justice White, after an exhaustive review of the authorities, expressed the
opinion of the court that under the common law the power of the court was limited to temporary
suspension and that the right to suspend sentenced absolutely and permanently was vested in the
executive branch of the government and not in the judiciary. But, the right of Congress to establish
probation by statute was conceded. Said the court through its Chief Justice: ". . . and so far as the
future is concerned, that is, the causing of the imposition of penalties as fixed to be subject, by
probation legislation or such other means as the legislative mind may devise, to such judicial
discretion as may be adequate to enable courts to meet by the exercise of an enlarged but wise
discretion the infinite variations which may be presented to them for judgment, recourse must be had
Congress whose legislative power on the subject is in the very nature of things adequately
complete." (Quoted in Riggs vs. United States [1926], 14 F. [2d], 5, 6.) This decision led the National
Probation Association and others to agitate for the enactment by Congress of a federal probation
law. Such action was finally taken on March 4, 1925 (chap. 521, 43 Stat. L. 159, U.S.C. title 18, sec.
724). This was followed by an appropriation to defray the salaries and expenses of a certain number
of probation officers chosen by civil service. (Johnson, Probation for Juveniles and Adults, p. 14.)
In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72 Law. ed., 309), the
Supreme Court of the United States, through Chief Justice Taft, held that when a person sentenced
to imprisonment by a district court has begun to serve his sentence, that court has no power under
the Probation Act of March 4, 1925 to grant him probation even though the term at which sentence
was imposed had not yet expired. In this case of Murray, the constitutionality of the probation Act
was not considered but was assumed. The court traced the history of the Act and quoted from the
report of the Committee on the Judiciary of the United States House of Representatives (Report No.
1377, 68th Congress, 2 Session) the following statement:

Prior to the so-called Killitts case, rendered in December, 1916, the district courts exercised
a form of probation either, by suspending sentence or by placing the defendants under state
probation officers or volunteers. In this case, however (Ex parte United States, 242 U.S., 27;
61 L. Ed., 129; L.R.A., 1917E, 1178; 37 Sup. Ct. Rep., 72 Ann. Cas. 1917B, 355), the
Supreme Court denied the right of the district courts to suspend sentenced. In the same
opinion the court pointed out the necessity for action by Congress if the courts were to
exercise probation powers in the future . . .

Since this decision was rendered, two attempts have been made to enact probation
legislation. In 1917, a bill was favorably reported by the Judiciary Committee and passed the
House. In 1920, the judiciary Committee again favorably reported a probation bill to the
House, but it was never reached for definite action.

If this bill is enacted into law, it will bring the policy of the Federal government with reference
to its treatment of those convicted of violations of its criminal laws in harmony with that of the
states of the Union. At the present time every state has a probation law, and in all but twelve
states the law applies both to adult and juvenile offenders. (see, also, Johnson, Probation for
Juveniles and Adults [1928], Chap. I.)

The constitutionality of the federal probation law has been sustained by inferior federal courts. In
Riggs vs. United States supra, the Circuit Court of Appeals of the Fourth Circuit said:

Since the passage of the Probation Act of March 4, 1925, the questions under consideration
have been reviewed by the Circuit Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and
the constitutionality of the act fully sustained, and the same held in no manner to encroach
upon the pardoning power of the President. This case will be found to contain an able and
comprehensive review of the law applicable here. It arose under the act we have to consider,
and to it and the authorities cited therein special reference is made (Nix vs. James, 7 F. [2d],
590, 594), as is also to a decision of the Circuit Court of Appeals of the Seventh Circuit
(Kriebel vs. U.S., 10 F. [2d], 762), likewise construing the Probation Act.

We have seen that in 1916 the Supreme Court of the United States; in plain and unequivocal
language, pointed to Congress as possessing the requisite power to enact probation laws, that a
federal probation law as actually enacted in 1925, and that the constitutionality of the Act has been
assumed by the Supreme Court of the United States in 1928 and consistently sustained by the
inferior federal courts in a number of earlier cases.

We are fully convinced that the Philippine Legislature, like the Congress of the United States, may
legally enact a probation law under its broad power to fix the punishment of any and all penal
offenses. This conclusion is supported by other authorities. In Ex parte Bates ([1915], 20 N. M., 542;
L.R.A. 1916A, 1285; 151 Pac., 698, the court said: "It is clearly within the province of the Legislature
to denominate and define all classes of crime, and to prescribe for each a minimum and maximum
punishment." And in State vs. Abbott ([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann.
Cas. 1912B, 1189), the court said: "The legislative power to set punishment for crime is very broad,
and in the exercise of this power the general assembly may confer on trial judges, if it sees fit, the
largest discretion as to the sentence to be imposed, as to the beginning and end of the punishment
and whether it should be certain or indeterminate or conditional." (Quoted in State vs. Teal [1918],
108 S. C., 455; 95 S. E., 69.) Indeed, the Philippine Legislature has defined all crimes and fixed the
penalties for their violation. Invariably, the legislature has demonstrated the desire to vest in the
courts — particularly the trial courts — large discretion in imposing the penalties which the law
prescribes in particular cases. It is believed that justice can best be served by vesting this power in
the courts, they being in a position to best determine the penalties which an individual convict,
peculiarly circumstanced, should suffer. Thus, while courts are not allowed to refrain from imposing a
sentence merely because, taking into consideration the degree of malice and the injury caused by
the offense, the penalty provided by law is clearly excessive, the courts being allowed in such case
to submit to the Chief Executive, through the Department of Justice, such statement as it may deem
proper (see art. 5, Revised Penal Code), in cases where both mitigating and aggravating
circumstances are attendant in the commission of a crime and the law provides for a penalty
composed of two indivisible penalties, the courts may allow such circumstances to offset one
another in consideration of their number and importance, and to apply the penalty according to the
result of such compensation. (Art. 63, rule 4, Revised Penal Code; U.S. vs. Reguera and Asuategui
[1921], 41 Phil., 506.) Again, article 64, paragraph 7, of the Revised Penal Code empowers the
courts to determine, within the limits of each periods, in case the penalty prescribed by law contains
three periods, the extent of the evil produced by the crime. In the imposition of fines, the courts are
allowed to fix any amount within the limits established by law, considering not only the mitigating and
aggravating circumstances, but more particularly the wealth or means of the culprit. (Art. 66, Revised
Penal Code.) Article 68, paragraph 1, of the same Code provides that "a discretionary penalty shall
be imposed" upon a person under fifteen but over nine years of age, who has not acted without
discernment, but always lower by two degrees at least than that prescribed by law for the crime
which he has committed. Article 69 of the same Code provides that in case of "incomplete self-
defense", i.e., when the crime committed is not wholly excusable by reason of the lack of some of
the conditions required to justify the same or to exempt from criminal liability in the several cases
mentioned in article 11 and 12 of the Code, "the courts shall impose the penalty in the period which
may be deemed proper, in view of the number and nature of the conditions of exemption present or
lacking." And, in case the commission of what are known as "impossible" crimes, "the court, having
in mind the social danger and the degree of criminality shown by the offender," shall impose upon
him either arresto mayor or a fine ranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.)

Under our Revised Penal Code, also, one-half of the period of preventive imprisonment is deducted
form the entire term of imprisonment, except in certain cases expressly mentioned (art. 29); the
death penalty is not imposed when the guilty person is more than seventy years of age, or where
upon appeal or revision of the case by the Supreme Court, all the members thereof are not
unanimous in their voting as to the propriety of the imposition of the death penalty (art. 47, see also,
sec. 133, Revised Administrative Code, as amended by Commonwealth Act No. 3); the death
sentence is not to be inflicted upon a woman within the three years next following the date of the
sentence or while she is pregnant, or upon any person over seventy years of age (art. 83); and when
a convict shall become insane or an imbecile after final sentence has been pronounced, or while he
is serving his sentenced, the execution of said sentence shall be suspended with regard to the
personal penalty during the period of such insanity or imbecility (art. 79).

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

We realize, of course, the conflict which the American cases disclose. Some cases hold it unlawful
for the legislature to vest in the courts the power to suspend the operation of a sentenced, by
probation or otherwise, as to do so would encroach upon the pardoning power of the executive. (In
re Webb [1895], 89 Wis., 354; 27 L.R.A., 356; 46 Am. St. Rep., 846; 62 N.W., 177; 9 Am. Crim.,
Rep., 702; State ex rel. Summerfield vs. Moran [1919], 43 Nev., 150; 182 Pac., 927; Ex
parte Clendenning [1908], 22 Okla., 108; 1 Okla. Crim. Rep., 227; 19 L.R.A. [N.S.], 1041; 132 Am.
St. Rep., 628; 97 Pac., 650; People vs. Barrett [1903], 202 Ill, 287; 67 N.E., 23; 63 L.R.A., 82; 95
Am. St. Rep., 230; Snodgrass vs. State [1912], 67 Tex. Crim. Rep., 615; 41 L. R. A. [N. S.], 1144;
150 S. W., 162; Ex parte Shelor [1910], 33 Nev., 361;111 Pac., 291; Neal vs. State [1898], 104 Ga.,
509; 42 L. R. A., 190; 69 Am. St. Rep., 175; 30 S. E. 858; State ex rel. Payne vs. Anderson [1921],
43 S. D., 630; 181 N. W., 839; People vs. Brown, 54 Mich., 15; 19 N. W., 571; States vs. Dalton
[1903], 109 Tenn., 544; 72 S. W., 456.)

Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F. [2d], 590; Archer vs.
Snook [1926; D. C.], 10 F. [2d], 567; Riggs. vs. United States [1926; C. C. A. 4th], 14]) [2d], 5;
Murphy vs. States [1926], 171 Ark., 620; 286 S. W., 871; 48 A. L. R., 1189; Re Giannini [1912], 18
Cal. App., 166; 122 Pac., 831; Re Nachnaber [1928], 89 Cal. App., 530; 265 Pac., 392; Ex parte De
Voe [1931], 114 Cal. App., 730; 300 Pac., 874; People vs. Patrick [1897], 118 Cal., 332; 50 Pac.,
425; Martin vs. People [1917], 69 Colo., 60; 168 Pac., 1171; Belden vs. Hugo [1914], 88 Conn., 50;
91 A., 369, 370, 371; Williams vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs. Heise
[1913], 257 Ill., 443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R.
A., 859; St. Hillarie, Petitioner [1906], 101 Me., 522; 64 Atl., 882; People vs. Stickle [1909], 156
Mich., 557; 121 N. W., 497; State vs. Fjolander [1914], 125 Minn., 529; State ex rel. Bottomnly vs.
District Court [1925], 73 Mont., 541; 237 Pac., 525; State vs. Everitt [1913], 164 N. C., 399; 79 S. E.,
274; 47 L. R. A. [N. S.], 848; State ex rel. Buckley vs. Drew [1909], 75 N. H., 402; 74 Atl., 875; State
vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl. 424; Ex parte Bates [1915], 20 N. M., 542; L. R. A.,
1916 A. 1285; 151 Pac., 698; People vs. ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288;
23 L. R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep., 675; People ex rel. Sullivan vs. Flynn [1907], 55
Misc., 639; 106 N. Y. Supp., 928; People vs. Goodrich [1914], 149 N. Y. Supp., 406; Moore vs.
Thorn [1935], 245 App. Div., 180; 281 N. Y. Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A., 1915C,
1169; 149 N. W., 568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P., 781; State vs. Teal
[1918], 108 S. C., 455; 95 S. E., 69; State vs. Abbot [1910], 87 S. C., 466; 33 L.R.A., [N. S.], 112; 70
S. E., 6; Ann. Cas., 1912B, 1189; Fults vs. States [1854],34 Tenn., 232; Woods vs. State [1814], 130
Tenn., 100; 169 S. W., 558; Baker vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State
[1913],70 Tex., Crim. Rep., 618; 158 S. W., 998; Cook vs. State [1914], 73 Tex. Crim. Rep., 548;
165 S. W., 573; King vs. State [1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State
[1932], 122 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 211;
54 S. W. [2d], 127; Re Hall [1927], 100 Vt., 197; 136 A., 24; Richardson vs. Com. [1921], 131 Va.,
802; 109 S.E., 460; State vs. Mallahan [1911], 65 Wash., 287; 118 Pac., 42; State ex rel. Tingstand
vs. Starwich [1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393; 396.) We elect to follow this
long catena of authorities holding that the courts may be legally authorized by the legislature to
suspend sentence by the establishment of a system of probation however characterized. State ex
rel. Tingstand vs. Starwich ([1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved
particular mention. In that case, a statute enacted in 1921 which provided for the suspension of the
execution of a sentence until otherwise ordered by the court, and required that the convicted person
be placed under the charge of a parole or peace officer during the term of such suspension, on such
terms as the court may determine, was held constitutional and as not giving the court a power in
violation of the constitutional provision vesting the pardoning power in the chief executive of the
state. (Vide, also, Re Giannini [1912], 18 Cal App., 166; 122 Pac., 831.)

Probation and pardon are not coterminous; nor are they the same. They are actually district and
different from each other, both in origin and in nature. In People ex rel. Forsyth vs. Court of Sessions
([1894], 141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L. R. A., 856; 15 Am. Crim. Rep., 675), the Court
of Appeals of New York said:

. . . The power to suspend sentence and the power to grant reprieves and pardons, as
understood when the constitution was adopted, are totally distinct and different in their
nature. The former was always a part of the judicial power; the latter was always a part of the
executive power. The suspension of the sentence simply postpones the judgment of the
court temporarily or indefinitely, but the conviction and liability following it, and the civil
disabilities, remain and become operative when judgment is rendered. A pardon reaches
both the punishment prescribed for the offense and the guilt of the offender. It releases the
punishment, and blots out of existence the guilt, so that in the eye of the law, the offender is
as innocent as if he had never committed the offense. It removes the penalties and
disabilities, and restores him to all his civil rights. It makes him, as it were, a new man, and
gives him a new credit and capacity. (Ex parte Garland, 71 U. S., 4 Wall., 333; 18 Law. ed.,
366; U. S. vs. Klein, 80 U. S., 13 Wall., 128; 20 Law. ed., 519; Knote vs. U. S., 95 U. S., 149;
24 Law. ed., 442.)

The framers of the federal and the state constitutions were perfectly familiar with the
principles governing the power to grant pardons, and it was conferred by these instruments
upon the executive with full knowledge of the law upon the subject, and the words of the
constitution were used to express the authority formerly exercised by the English crown, or
by its representatives in the colonies. (Ex parte Wells, 59 U. S., 18 How., 307; 15 Law. ed.,
421.) As this power was understood, it did not comprehend any part of the judicial functions
to suspend sentence, and it was never intended that the authority to grant reprieves and
 pardons should abrogate, or in any degree restrict, the exercise of that power in regard to its
own judgments, that criminal courts has so long maintained. The two powers, so distinct and
different in their nature and character, were still left separate and distinct, the one to be
exercised by the executive, and the other by the judicial department. We therefore conclude
that a statute which, in terms, authorizes courts of criminal jurisdiction to suspend sentence
in certain cases after conviction, — a power inherent in such courts at common law, which
was understood when the constitution was adopted to be an ordinary judicial function, and
which, ever since its adoption, has been exercised of legislative power under the
constitution. It does not encroach, in any just sense, upon the powers of the executive, as
they have been understood and practiced from the earliest times. (Quoted with approval in
Directors of Prisons vs. Judge of First Instance of Cavite [1915], 29 Phil., 265, Carson, J.,
concurring, at pp. 294, 295.)

In probation, the probationer is in no true sense, as in pardon, a free man. He is not finally and
completely exonerated. He is not exempt from the entire punishment which the law inflicts. Under
the Probation Act, the probationer's case is not terminated by the mere fact that he is placed on
probation. Section 4 of the Act provides that the probation may be definitely terminated and the
probationer finally discharged from supervision only after the period of probation shall have been
terminated and the probation officer shall have submitted a report, and the court shall have found
that the probationer has complied with the conditions of probation. The probationer, then, during the
period of probation, remains in legal custody — subject to the control of the probation officer and of
the court; and, he may be rearrested upon the non-fulfillment of the conditions of probation and,
when rearrested, may be committed to prison to serve the sentence originally imposed upon him.
(Secs. 2, 3, 5 and 6, Act No. 4221.)

The probation described in the act is not pardon. It is not complete liberty, and may be far
from it. It is really a new mode of punishment, to be applied by the judge in a proper case, in
substitution of the imprisonment and find prescribed by the criminal laws. For this reason its
application is as purely a judicial act as any other sentence carrying out the law deemed
applicable to the offense. The executive act of pardon, on the contrary, is against the
criminal law, which binds and directs the judges, or rather is outside of and above it. There is
thus no conflict with the pardoning power, and no possible unconstitutionality of the
Probation Act for this cause. (Archer vs. Snook [1926], 10 F. [2d], 567, 569.)

Probation should also be distinguished from reprieve and from commutation of the sentence.
Snodgrass vs. State ([1912], 67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.], 1144; 150 S. W., 162), is
relied upon most strongly by the petitioners as authority in support of their contention that the power
to grant pardons and reprieves, having been vested exclusively upon the Chief Executive by the
Jones Law, may not be conferred by the legislature upon the courts by means of probation law
authorizing the indefinite judicial suspension of sentence. We have examined that case and found
that although the Court of Criminal Appeals of Texas held that the probation statute of the state in
terms conferred on the district courts the power to grant pardons to persons convicted of crime, it
also distinguished between suspensions sentence on the one hand, and reprieve and commutation
of sentence on the other. Said the court, through Harper, J.:

That the power to suspend the sentence does not conflict with the power of the Governor to
grant reprieves is settled by the decisions of the various courts; it being held that the
distinction between a "reprieve" and a suspension of sentence is that a reprieve postpones
the execution of the sentence to a day certain, whereas a suspension is for an indefinite
time. (Carnal vs. People, 1 Parker, Cr. R., 262; In re Buchanan, 146 N. Y., 264; 40 N. E.,
883), and cases cited in 7 Words & Phrases, pp. 6115, 6116. This law cannot be hold in
 conflict with the power confiding in the Governor to grant commutations of punishment, for a
commutations is not but to change the punishment assessed to a less punishment.

In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac., 525), the Supreme
Court of Montana had under consideration the validity of the adult probation law of the state enacted
in 1913, now found in sections 12078-12086, Revised Codes of 1921. The court held the law valid
as not impinging upon the pardoning power of the executive. In a unanimous decision penned by
Justice Holloway, the court said:

. . . . the term "pardon", "commutation", and "respite" each had a well understood meaning at
the time our Constitution was adopted, and no one of them was intended to comprehend the
suspension of the execution of the judgment as that phrase is employed in sections 12078-
12086. A "pardon" is an act of grace, proceeding from the power intrusted with the execution
of the laws which exempts the individual on whom it is bestowed from the punishment the
law inflicts for a crime he has committed (United States vs. Wilson, 7 Pet., 150; 8 Law. ed.,
640); It is a remission of guilt (State vs. Lewis, 111 La., 693; 35 So., 816), a forgiveness of
the offense (Cook vs. Middlesex County, 26 N. J. Law, 326; Ex parte Powell, 73 Ala., 517;
49 Am. Rep., 71). "Commutation" is a remission of a part of the punishment; a substitution of
a less penalty for the one originally imposed (Lee vs. Murphy, 22 Grat. [Va.] 789; 12 Am.
Rep., 563; Rich vs. Chamberlain, 107 Mich., 381; 65 N. W., 235). A "reprieve" or "respite" is
the withholding of the sentence for an interval of time (4 Blackstone's Commentaries, 394), a
postponement of execution (Carnal vs. People, 1 Parker, Cr. R. [N. Y.], 272), a temporary
suspension of execution (Butler vs. State, 97 Ind., 373).

Few adjudicated cases are to be found in which the validity of a statute similar to our section
12078 has been determined; but the same objections have been urged against parole
statutes which vest the power to parole in persons other than those to whom the power of
pardon is granted, and these statutes have been upheld quite uniformly, as a reference to
the numerous cases cited in the notes to Woods vs. State (130 Tenn., 100; 169 S. W.,558,
reported in L. R. A., 1915F, 531), will disclose. (See, also, 20 R. C. L., 524.)

We conclude that the Probation Act does not conflict with the pardoning power of the Executive. The
pardoning power, in respect to those serving their probationary sentences, remains as full and
complete as if the Probation Law had never been enacted. The President may yet pardon the
probationer and thus place it beyond the power of the court to order his rearrest and imprisonment.
(Riggs vs. United States [1926],
14 F. [2d], 5, 7.)

2. But while the Probation Law does not encroach upon the pardoning power of the executive and is
not for that reason void, does section 11 thereof constitute, as contended, an undue delegation of
legislative power?

Under the constitutional system, the powers of government are distributed among three coordinate
and substantially independent organs: the legislative, the executive and the judicial. Each of these
departments of the government derives its authority from the Constitution which, in turn, is the
highest expression of popular will. Each has exclusive cognizance of the matters within its
jurisdiction, and is supreme within its own sphere.

The power to make laws — the legislative power — is vested in a bicameral Legislature by the
Jones Law (sec. 12) and in a unicamiral National Assembly by the Constitution (Act. VI, sec. 1,
Constitution of the Philippines). The Philippine Legislature or the National Assembly may not escape
its duties and responsibilities by delegating that power to any other body or authority. Any attempt to
abdicate the power is unconstitutional and void, on the principle that potestas delegata non delegare
potest. This principle is said to have originated with the glossators, was introduced into English law
through a misreading of Bracton, there developed as a principle of agency, was established by Lord
Coke in the English public law in decisions forbidding the delegation of judicial power, and found its
way into America as an enlightened principle of free government. It has since become an accepted
corollary of the principle of separation of powers. (5 Encyc. of the Social Sciences, p. 66.) The
classic statement of the rule is that of Locke, namely: "The legislative neither must nor can transfer
the power of making laws to anybody else, or place it anywhere but where the people have." (Locke
on Civil Government, sec. 142.) Judge Cooley enunciates the doctrine in the following oft-quoted
language: "One of the settled maxims in constitutional law is, that the power conferred upon the
legislature to make laws cannot be delegated by that department to any other body or authority.
Where the sovereign power of the state has located the authority, there it must remain; and by the
constitutional agency alone the laws must be made until the Constitution itself is charged. The power
to whose judgment, wisdom, and patriotism this high prerogative has been intrusted cannot relieve
itself of the responsibilities by choosing other agencies upon which the power shall be devolved, nor
can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the
people have seen fit to confide this sovereign trust." (Cooley on Constitutional Limitations, 8th ed.,
Vol. I, p. 224. Quoted with approval in U. S. vs. Barrias [1908], 11 Phil., 327.) This court posits the
doctrine "on the ethical principle that such a delegated power constitutes not only a right but a duty
to be performed by the delegate by the instrumentality of his own judgment acting immediately upon
the matter of legislation and not through the intervening mind of another. (U. S. vs. Barrias, supra, at
p. 330.)

The rule, however, which forbids the delegation of legislative power is not absolute and inflexible. It
admits of exceptions. An exceptions sanctioned by immemorial practice permits the central
legislative body to delegate legislative powers to local authorities. (Rubi vs. Provincial Board of
Mindoro [1919], 39 Phil., 660; U. S. vs. Salaveria [1918], 39 Phil., 102; Stoutenburgh vs. Hennick
[1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256; State vs. Noyes [1855], 30 N. H.,
279.) "It is a cardinal principle of our system of government, that local affairs shall be managed by
local authorities, and general affairs by the central authorities; and hence while the rule is also
fundamental that the power to make laws cannot be delegated, the creation of the municipalities
exercising local self government has never been held to trench upon that rule. Such legislation is not
regarded as a transfer of general legislative power, but rather as the grant of the authority to
prescribed local regulations, according to immemorial practice, subject of course to the interposition
of the superior in cases of necessity." (Stoutenburgh vs. Hennick, supra.) On quite the same
principle, Congress is powered to delegate legislative power to such agencies in the territories of the
United States as it may select. A territory stands in the same relation to Congress as a municipality
or city to the state government. (United States vs. Heinszen [1907], 206 U. S., 370; 27 Sup. Ct.
Rep., 742; 51 L. ed., 1098; 11 Ann. Cas., 688; Dorr vs. United States [1904], 195 U.S., 138; 24 Sup.
Ct. Rep., 808; 49 Law. ed., 128; 1 Ann. Cas., 697.) Courts have also sustained the delegation of
legislative power to the people at large. Some authorities maintain that this may not be done (12 C.
J., pp. 841, 842; 6 R. C. L., p. 164, citing People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442;
Ann. Cas., 1914C, 616). However, the question of whether or not a state has ceased to be
republican in form because of its adoption of the initiative and referendum has been held not to be a
judicial but a political question (Pacific States Tel. & Tel. Co. vs. Oregon [1912], 223 U. S., 118; 56
Law. ed., 377; 32 Sup. Cet. Rep., 224), and as the constitutionality of such laws has been looked
upon with favor by certain progressive courts, the sting of the decisions of the more conservative
courts has been pretty well drawn. (Opinions of the Justices [1894], 160 Mass., 586; 36 N. E., 488;
23 L. R. A., 113; Kiernan vs. Portland [1910], 57 Ore., 454; 111 Pac., 379; 1132 Pac., 402; 37 L. R.
A. [N. S.], 332; Pacific States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also, legislative power
may be delegated by the Constitution itself. Section 14, paragraph 2, of article VI of the Constitution
of the Philippines provides that "The National Assembly may by law authorize the President, subject
to such limitations and restrictions as it may impose, to fix within specified limits, tariff rates, import
or export quotas, and tonnage and wharfage dues." And section 16 of the same article of the
Constitution provides that "In times of war or other national emergency, the National Assembly may
by law authorize the President, for a limited period and subject to such restrictions as it may
prescribed, to promulgate rules and regulations to carry out a declared national policy." It is beyond
the scope of this decision to determine whether or not, in the absence of the foregoing constitutional
provisions, the President could be authorized to exercise the powers thereby vested in him. Upon
the other hand, whatever doubt may have existed has been removed by the Constitution itself.

The case before us does not fall under any of the exceptions hereinabove mentioned.

The challenged section of Act No. 4221 in section 11 which reads as follows:

This Act shall apply only in those provinces in which the respective provincial boards have
provided for the salary of a probation officer at rates not lower than those now provided for
provincial fiscals. Said probation officer shall be appointed by the Secretary of Justice and
shall be subject to the direction of the Probation Office. (Emphasis ours.)

In testing whether a statute constitute an undue delegation of legislative power or not, it is usual to
inquire whether the statute was complete in all its terms and provisions when it left the hands of the
legislature so that nothing was left to the judgment of any other appointee or delegate of the
legislature. (6 R. C. L., p. 165.) In the United States vs. Ang Tang Ho ([1922], 43 Phil., 1), this court
adhered to the foregoing rule when it held an act of the legislature void in so far as it undertook to
authorize the Governor-General, in his discretion, to issue a proclamation fixing the price of rice and
to make the sale of it in violation of the proclamation a crime. (See and cf. Compañia General de
Tabacos vs. Board of Public Utility Commissioners [1916], 34 Phil., 136.) The general rule, however,
is limited by another rule that to a certain extent matters of detail may be left to be filled in by rules
and regulations to be adopted or promulgated by executive officers and administrative boards. (6 R.
C. L., pp. 177-179.)

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

"The true distinction", says Judge Ranney, "is between the delegation of power to make the law,
which necessarily involves a discretion as to what it shall be, and conferring an authority or
discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be
done; to the latter no valid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Clinton County
Comrs. [1852]; 1 Ohio St., 77, 88. See also, Sutherland on Statutory Construction, sec 68.) To the
same effect are the decision of this court in Municipality of Cardona vs. Municipality of
Binangonan ([1917], 36 Phil., 547); Rubi vs. Provincial Board of Mindoro ([1919],39 Phil., 660)
and Cruz vs. Youngberg ([1931], 56 Phil., 234). In the first of these cases, this court sustained the
validity of the law conferring upon the Governor-General authority to adjust provincial and municipal
boundaries. In the second case, this court held it lawful for the legislature to direct non-Christian
inhabitants to take up their habitation on unoccupied lands to be selected by the provincial governor
and approved by the provincial board. In the third case, it was held proper for the legislature to vest
in the Governor-General authority to suspend or not, at his discretion, the prohibition of the
importation of the foreign cattle, such prohibition to be raised "if the conditions of the country make
this advisable or if deceased among foreign cattle has ceased to be a menace to the agriculture and
livestock of the lands."

It should be observed that in the case at bar we are not concerned with the simple transference of
details of execution or the promulgation by executive or administrative officials of rules and
regulations to carry into effect the provisions of a law. If we were, recurrence to our own decisions
would be sufficient. (U. S. vs. Barrias [1908], 11 Phil., 327; U.S. vs. Molina [1914], 29 Phil., 119;
Alegre vs. Collector of Customs [1929], 53 Phil., 394; Cebu Autobus Co. vs. De Jesus [1931], 56
Phil., 446; U. S. vs. Gomez [1915], 31 Phil., 218; Rubi vs. Provincial Board of Mindoro [1919], 39
Phil., 660.)

It is connected, however, that a legislative act may be made to the effect as law after it leaves the
hands of the legislature. It is true that laws may be made effective on certain contingencies, as by
proclamation of the executive or the adoption by the people of a particular community (6 R. C. L.,
116, 170-172; Cooley, Constitutional Limitations, 8th ed., Vol. I, p. 227). In Wayman vs. Southard
([1825], 10 Wheat. 1; 6 Law. ed., 253), the Supreme Court of the United State ruled that the
legislature may delegate a power not legislative which it may itself rightfully exercise.(Vide, also,
Dowling vs. Lancashire Ins. Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to
ascertain facts is such a power which may be delegated. There is nothing essentially legislative in
ascertaining the existence of facts or conditions as the basis of the taking into effect of a law. That is
a mental process common to all branches of the government. (Dowling vs. Lancashire Ins.
Co., supra; In re Village of North Milwaukee [1896], 93 Wis., 616; 97 N.W., 1033; 33 L.R.A., 938;
Nash vs. Fries [1906], 129 Wis., 120; 108 N.W., 210; Field vs. Clark [1892], 143 U.S., 649; 12 Sup.
Ct., 495; 36 Law. ed., 294.) Notwithstanding the apparent tendency, however, to relax the rule
prohibiting delegation of legislative authority on account of the complexity arising from social and
economic forces at work in this modern industrial age (Pfiffner, Public Administration [1936] ch. XX;
Laski, "The Mother of Parliaments", foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579; Beard,
"Squirt-Gun Politics", in Harper's Monthly Magazine, July, 1930, Vol. CLXI, pp. 147, 152), the
orthodox pronouncement of Judge Cooley in his work on Constitutional Limitations finds restatement
in Prof. Willoughby's treatise on the Constitution of the United States in the following language —
speaking of declaration of legislative power to administrative agencies: "The principle which permits
the legislature to provide that the administrative agent may determine when the circumstances are
such as require the application of a law is defended upon the ground that at the time this authority is
granted, the rule of public policy, which is the essence of the legislative act, is determined by the
legislature. In other words, the legislature, as it its duty to do, determines that, under given
circumstances, certain executive or administrative action is to be taken, and that, under other
circumstances, different of no action at all is to be taken. What is thus left to the administrative
official is not the legislative determination of what public policy demands, but simply the
ascertainment of what the facts of the case require to be done according to the terms of the law by
which he is governed." (Willoughby on the Constitution of the United States, 2nd ed., Vol. II, p.
1637.) In Miller vs. Mayer, etc., of New York [1883], 109 U.S., 3 Sup. Ct. Rep., 228; 27 Law. ed.,
971, 974), it was said: "The efficiency of an Act as a declaration of legislative will must, of course,
come from Congress, but the ascertainment of the contingency upon which the Act shall take effect
may be left to such agencies as it may designate." (See, also, 12 C.J., p. 864; State vs. Parker
[1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343, 258.) The legislature, then may provide
that a contingencies leaving to some other person or body the power to determine when the
specified contingencies has arisen. But, in the case at bar, the legislature has not made the
operation of the Prohibition Act contingent upon specified facts or conditions to be ascertained by
the provincial board. It leaves, as we have already said, the entire operation or non-operation of the
law upon the provincial board. the discretion vested is arbitrary because it is absolute and unlimited.
A provincial board need not investigate conditions or find any fact, or await the happening of any
specified contingency. It is bound by no rule, — limited by no principle of expendiency announced by
the legislature. It may take into consideration certain facts or conditions; and, again, it may not. It
may have any purpose or no purpose at all. It need not give any reason whatsoever for refusing or
failing to appropriate any funds for the salary of a probation officer. This is a matter which rest
entirely at its pleasure. The fact that at some future time — we cannot say when — the provincial
boards may appropriate funds for the salaries of probation officers and thus put the law into
operation in the various provinces will not save the statute. The time of its taking into effect, we
reiterate, would yet be based solely upon the will of the provincial boards and not upon the
happening of a certain specified contingency, or upon the ascertainment of certain facts or
conditions by a person or body other than legislature itself.

The various provincial boards are, in practical effect, endowed with the power of suspending the
operation of the Probation Law in their respective provinces. In some jurisdiction, constitutions
provided that laws may be suspended only by the legislature or by its authority. Thus, section 28,
article I of the Constitution of Texas provides that "No power of suspending laws in this state shall be
exercised except by the legislature"; and section 26, article I of the Constitution of Indiana provides
"That the operation of the laws shall never be suspended, except by authority of the General
Assembly." Yet, even provisions of this sort do not confer absolute power of suspension upon the
legislature. While it may be undoubted that the legislature may suspend a law, or the execution or
operation of a law, a law may not be suspended as to certain individuals only, leaving the law to be
enjoyed by others. The suspension must be general, and cannot be made for individual cases or for
particular localities. In Holden vs. James ([1814], 11 Mass., 396; 6 Am. Dec., 174, 177, 178), it was
said:

By the twentieth article of the declaration of rights in the constitution of this commonwealth, it
is declared that the power of suspending the laws, or the execution of the laws, ought never
to be exercised but by the legislature, or by authority derived from it, to be exercised in such
particular cases only as the legislature shall expressly provide for. Many of the articles in that
declaration of rights were adopted from the Magna Charta of England, and from the bill of
rights passed in the reign of William and Mary. The bill of rights contains an enumeration of
the oppressive acts of James II, tending to subvert and extirpate the protestant religion, and
the laws and liberties of the kingdom; and the first of them is the assuming and exercising a
power of dispensing with and suspending the laws, and the execution of the laws without
 consent of parliament. The first article in the claim or declaration of rights contained in the
statute is, that the exercise of such power, by legal authority without consent of parliament, is
illegal. In the tenth section of the same statute it is further declared and enacted, that "No
dispensation by non obstante of or to any statute, or part thereof, should be allowed; but the
same should be held void and of no effect, except a dispensation be allowed of in such
statute." There is an implied reservation of authority in the parliament to exercise the power
here mentioned; because, according to the theory of the English Constitution, "that absolute
despotic power, which must in all governments reside somewhere," is intrusted to the
parliament: 1 Bl. Com., 160.

The principles of our government are widely different in this particular. Here the sovereign
and absolute power resides in the people; and the legislature can only exercise what is
delegated to them according to the constitution. It is obvious that the exercise of the power in
question would be equally oppressive to the subject, and subversive of his right to protection,
"according to standing laws," whether exercised by one man or by a number of men. It
cannot be supposed that the people when adopting this general principle from the English
bill of rights and inserting it in our constitution, intended to bestow by implication on the
general court one of the most odious and oppressive prerogatives of the ancient kings of
England. It is manifestly contrary to the first principles of civil liberty and natural justice, and
to the spirit of our constitution and laws, that any one citizen should enjoy privileges and
advantages which are denied to all others under like circumstances; or that ant one should
be subject to losses, damages, suits, or actions from which all others under like
circumstances are exempted.

To illustrate the principle: A section of a statute relative to dogs made the owner of any dog liable to
the owner of domestic animals wounded by it for the damages without proving a knowledge of it
vicious disposition. By a provision of the act, power was given to the board of supervisors to
determine whether or not during the current year their county should be governed by the provisions
of the act of which that section constituted a part. It was held that the legislature could not confer that
power. The court observed that it could no more confer such a power than to authorize the board of
supervisors of a county to abolish in such county the days of grace on commercial paper, or to
suspend the statute of limitations. (Slinger vs. Henneman [1875], 38 Wis., 504.) A similar statute in
Missouri was held void for the same reason in State vs. Field ([1853, 17 Mo., 529;59 Am. Dec., 275.)
In that case a general statute formulating a road system contained a provision that "if the county
court of any county should be of opinion that the provisions of the act should not be enforced, they
might, in their discretion, suspend the operation of the same for any specified length of time, and
thereupon the act should become inoperative in such county for the period specified in such order;
and thereupon order the roads to be opened and kept in good repair, under the laws theretofore in
force." Said the court: ". . . this act, by its own provisions, repeals the inconsistent provisions of a
former act, and yet it is left to the county court to say which act shall be enforce in their county. The
act does not submit the question to the county court as an original question, to be decided by that
tribunal, whether the act shall commence its operation within the county; but it became by its own
terms a law in every county not excepted by name in the act. It did not, then, require the county court
to do any act in order to give it effect. But being the law in the county, and having by its provisions
superseded and abrogated the inconsistent provisions of previous laws, the county court is . . .
empowered, to suspend this act and revive the repealed provisions of the former act. When the
question is before the county court for that tribunal to determine which law shall be in force, it is urge
before us that the power then to be exercised by the court is strictly legislative power, which under
our constitution, cannot be delegated to that tribunal or to any other body of men in the state. In the
present case, the question is not presented in the abstract; for the county court of Saline county,
after the act had been for several months in force in that county, did by order suspend its operation;
and during that suspension the offense was committed which is the subject of the present indictment
. . . ." (See Mitchell vs. State [1901], 134 Ala., 392; 32 S., 687.)
True, the legislature may enact laws for a particular locality different from those applicable to other
localities and, while recognizing the force of the principle hereinabove expressed, courts in may
jurisdiction have sustained the constitutionality of the submission of option laws to the vote of the
people. (6 R.C.L., p. 171.) But option laws thus sustained treat of subjects purely local in character
which should receive different treatment in different localities placed under different circumstances.
"They relate to subjects which, like the retailing of intoxicating drinks, or the running at large of cattle
in the highways, may be differently regarded in different localities, and they are sustained on what
seems to us the impregnable ground, that the subject, though not embraced within the ordinary
powers of municipalities to make by-laws and ordinances, is nevertheless within the class of public
regulations, in respect to which it is proper that the local judgment should control." (Cooley on
Constitutional Limitations, 5th ed., p. 148.) So that, while we do not deny the right of local self-
government and the propriety of leaving matters of purely local concern in the hands of local
authorities or for the people of small communities to pass upon, we believe that in matters of general
of general legislation like that which treats of criminals in general, and as regards the general subject
of probation, discretion may not be vested in a manner so unqualified and absolute as provided in
Act No. 4221. True, the statute does not expressly state that the provincial boards may suspend the
operation of the Probation Act in particular provinces but, considering that, in being vested with the
authority to appropriate or not the necessary funds for the salaries of probation officers, they thereby
are given absolute discretion to determine whether or not the law should take effect or operate in
their respective provinces, the provincial boards are in reality empowered by the legislature to
suspend the operation of the Probation Act in particular provinces, the Act to be held in abeyance
until the provincial boards should decide otherwise by appropriating the necessary funds. The
validity of a law is not tested by what has been done but by what may be done under its provisions.
(Walter E. Olsen & Co. vs. Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.)

It in conceded that a great deal of latitude should be granted to the legislature not only in the
expression of what may be termed legislative policy but in the elaboration and execution thereof.
"Without this power, legislation would become oppressive and yet imbecile." (People vs. Reynolds, 5
Gilman, 1.) It has been said that popular government lives because of the inexhaustible reservoir of
power behind it. It is unquestionable that the mass of powers of government is vested in the
representatives of the people and that these representatives are no further restrained under our
system than by the express language of the instrument imposing the restraint, or by particular
provisions which by clear intendment, have that effect. (Angara vs. Electoral Commission [1936], 35
Off. Ga., 23; Schneckenburger vs. Moran [1936], 35 Off. Gaz., 1317.) But, it should be borne in mind
that a constitution is both a grant and a limitation of power and one of these time-honored limitations
is that, subject to certain exceptions, legislative power shall not be delegated.

We conclude that section 11 of Act No. 4221 constitutes an improper and unlawful delegation of
legislative authority to the provincial boards and is, for this reason, unconstitutional and void.

3. It is also contended that the Probation Act violates the provisions of our Bill of Rights which
prohibits the denial to any person of the equal protection of the laws (Act. III, sec. 1 subsec. 1.
Constitution of the Philippines.)

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

In the case at bar, however, the resultant inequality may be said to flow from the unwarranted
delegation of legislative power, although perhaps this is not necessarily the result in every case.
Adopting the example given by one of the counsel for the petitioners in the course of his oral
argument, one province may appropriate the necessary fund to defray the salary of a probation
officer, while another province may refuse or fail to do so. In such a case, the Probation Act would
be in operation in the former province but not in the latter. This means that a person otherwise
coming within the purview of the law would be liable to enjoy the benefits of probation in one
province while another person similarly situated in another province would be denied those same
benefits. This is obnoxious discrimination. Contrariwise, it is also possible for all the provincial
boards to appropriate the necessary funds for the salaries of the probation officers in their respective
provinces, in which case no inequality would result for the obvious reason that probation would be in
operation in each and every province by the affirmative action of appropriation by all the provincial
boards. On that hypothesis, every person coming within the purview of the Probation Act would be
entitled to avail of the benefits of the Act. Neither will there be any resulting inequality if no province,
through its provincial board, should appropriate any amount for the salary of the probation officer —
which is the situation now — and, also, if we accept the contention that, for the purpose of the
Probation Act, the City of Manila should be considered as a province and that the municipal board of
said city has not made any appropriation for the salary of the probation officer. These different
situations suggested show, indeed, that while inequality may result in the application of the law and
in the conferment of the benefits therein provided, inequality is not in all cases the necessary result.
But whatever may be the case, it is clear that in section 11 of the Probation Act creates a situation in
which discrimination and inequality are permitted or allowed. There are, to be sure, abundant
authorities requiring actual denial of the equal protection of the law before court should assume the
task of setting aside a law vulnerable on that score, but premises and circumstances considered, we
are of the opinion that section 11 of Act No. 4221 permits of the denial of the equal protection of the
law and is on that account bad. We see no difference between a law which permits of such denial. A
law may appear to be fair on its face and impartial in appearance, yet, if it permits of unjust and
illegal discrimination, it is within the constitutional prohibitions. (By analogy, Chy Lung vs. Freeman
[1876], 292 U. S., 275; 23 Law. ed., 550; Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law. ed.,
543; Ex parte Virginia [1880], 100 U. S., 339; 25 Law. ed., 676; Neal vs. Delaware [1881], 103 U. S.,
370; 26 Law. ed., 567; Soon Hing vs. Crowley [1885], 113 U. S., 703; 28 Law. ed., 1145, Yick Wo
vs. Hopkins [1886],118 U. S., 356; 30 Law. ed., 220; Williams vs. Mississippi [1897], 170 U. S., 218;
18 Sup. Ct. Rep., 583; 42 Law. ed., 1012; Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct.
Rep. 145; 55 Law. ed., Sunday Lake Iron Co. vs. Wakefield [1918], 247 U. S., 450; 38 Sup. Ct. Rep.,
495; 62 Law. ed., 1154.) In other words, statutes may be adjudged unconstitutional because of their
effect in operation (General Oil Co. vs. Clain [1907], 209 U. S., 211; 28 Sup. Ct. Rep., 475; 52 Law.
ed., 754; State vs. Clement Nat. Bank [1911], 84 Vt., 167; 78 Atl., 944; Ann. Cas., 1912D, 22). If the
law has the effect of denying the equal protection of the law it is unconstitutional. (6 R. C. L. p. 372;
Civil Rights Cases, 109 U. S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs. Hopkins, supra;
State vs. Montgomery, 94 Me., 192; 47 Atl., 165; 80 A. S. R., 386; State vs. Dering, 84 Wis., 585; 54
N. W., 1104; 36 A. S. R., 948; 19 L. R. A., 858.) Under section 11 of the Probation Act, not only may
said Act be in force in one or several provinces and not be in force in other provinces, but one
province may appropriate for the salary of the probation officer of a given year — and have probation
during that year — and thereafter decline to make further appropriation, and have no probation is
subsequent years. While this situation goes rather to the abuse of discretion which delegation
implies, it is here indicated to show that the Probation Act sanctions a situation which is intolerable in
a government of laws, and to prove how easy it is, under the Act, to make the guaranty of the
equality clause but "a rope of sand". (Brewer, J. Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S.,
150 154; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255.) lawph!1.net

Great reliance is placed by counsel for the respondents on the case of Ocampo vs. United States
([1914], 234 U. S., 91; 58 Law. ed., 1231). In that case, the Supreme Court of the United States
affirmed the decision of this court (18 Phil., 1) by declining to uphold the contention that there was a
denial of the equal protection of the laws because, as held in Missouri vs. Lewis (Bowman vs. Lewis)
decided in 1880 (101 U. S., 220; 25 Law. ed., 991), the guaranty of the equality clause does not
require territorial uniformity. It should be observed, however, that this case concerns the right to
preliminary investigations in criminal cases originally granted by General Orders No. 58. No question
of legislative authority was involved and the alleged denial of the equal protection of the laws was
the result of the subsequent enactment of Act No. 612, amending the charter of the City of Manila
(Act No. 813) and providing in section 2 thereof that "in cases triable only in the court of first instance
of the City of Manila, the defendant . . . shall not be entitled as of right to a preliminary examination
in any case where the prosecuting attorney, after a due investigation of the facts . . . shall have
presented an information against him in proper form . . . ." Upon the other hand, an analysis of the
arguments and the decision indicates that the investigation by the prosecuting attorney — although
not in the form had in the provinces — was considered a reasonable substitute for the City of Manila,
considering the peculiar conditions of the city as found and taken into account by the legislature
itself.

Reliance is also placed on the case of Missouri vs. Lewis, supra. That case has reference to a
situation where the constitution of Missouri permits appeals to the Supreme Court of the state from
final judgments of any circuit court, except those in certain counties for which counties the
constitution establishes a separate court of appeals called St. Louis Court of Appeals. The provision
complained of, then, is found in the constitution itself and it is the constitution that makes the
apportionment of territorial jurisdiction.

We are of the opinion that section 11 of the Probation Act is unconstitutional and void because it is
also repugnant to equal-protection clause of our Constitution.

Section 11 of the Probation Act being unconstitutional and void for the reasons already stated, the
next inquiry is whether or not the entire Act should be avoided.

In seeking the legislative intent, the presumption is against any mutilation of a statute, and
the courts will resort to elimination only where an unconstitutional provision is interjected into
a statute otherwise valid, and is so independent and separable that its removal will leave the
constitutional features and purposes of the act substantially unaffected by the process.
(Riccio vs. Hoboken, 69 N. J. Law., 649, 662; 63 L. R. A., 485; 55 Atl., 1109, quoted in
Williams vs. Standard Oil Co. [1929], 278 U.S., 235, 240; 73 Law. ed., 287, 309; 49 Sup. Ct.
Rep., 115; 60 A. L. R., 596.) In Barrameda vs. Moir ([1913], 25 Phil., 44, 47), this court
stated the well-established rule concerning partial invalidity of statutes in the following
language:
 . . . where part of the a statute is void, as repugnant to the Organic Law, while another part is
valid, the valid portion, if separable from the valid, may stand and be enforced. But in order
to do this, the valid portion must be in so far independent of the invalid portion that it is fair to
presume that the Legislative would have enacted it by itself if they had supposed that they
could not constitutionally enact the other. (Mutual Loan Co. vs. Martell, 200 Mass., 482; 86
N. E., 916; 128 A. S. R., 446; Supervisors of Holmes Co. vs. Black Creek Drainage District,
99 Miss., 739; 55 Sou., 963.) Enough must remain to make a complete, intelligible, and valid
statute, which carries out the legislative intent. (Pearson vs. Bass. 132 Ga., 117; 63 S. E.,
798.) The void provisions must be eliminated without causing results affecting the main
purpose of the Act, in a manner contrary to the intention of the Legislature. (State vs. A. C. L.
R., Co., 56 Fla., 617, 642; 47 Sou., 969; Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226; 26
L. R. A., N. S., 794; Connolly vs. Union Sewer Pipe Co., 184 U. S., 540, 565; People vs.
Strassheim, 240 Ill., 279, 300; 88 N. E., 821; 22 L. R. A., N. S., 1135; State vs. Cognevich,
124 La., 414; 50 Sou., 439.) The language used in the invalid part of a statute can have no
legal force or efficacy for any purpose whatever, and what remains must express the
legislative will, independently of the void part, since the court has no power to legislate.
(State vs. Junkin, 85 Neb., 1; 122 N. W., 473; 23 L. R. A., N. S., 839; Vide, also,. U. S., vs.
Rodriguez [1918], 38 Phil., 759; Pollock vs. Farmers' Loan and Trust Co. [1895], 158 U. S.,
601, 635; 39 Law. ed., 1108, 1125; 15 Sup. Ct. Rep., 912; 6 R.C.L., 121.)

It is contended that even if section 11, which makes the Probation Act applicable only in those
provinces in which the respective provincial boards provided for the salaries of probation officers
were inoperative on constitutional grounds, the remainder of the Act would still be valid and may be
enforced. We should be inclined to accept the suggestions but for the fact that said section is, in our
opinion, is inseparably linked with the other portions of the Act that with the elimination of the section
what would be left is the bare idealism of the system, devoid of any practical benefit to a large
number of people who may be deserving of the intended beneficial result of that system. The clear
policy of the law, as may be gleaned from a careful examination of the whole context, is to make the
application of the system dependent entirely upon the affirmative action of the different provincial
boards through appropriation of the salaries for probation officers at rates not lower than those
provided for provincial fiscals. Without such action on the part of the various boards, no probation
officers would be appointed by the Secretary of Justice to act in the provinces. The Philippines is
divided or subdivided into provinces and it needs no argument to show that if not one of the
provinces — and this is the actual situation now — appropriate the necessary fund for the salary of a
probation officer, probation under Act No. 4221 would be illusory. There can be no probation without
a probation officer. Neither can there be a probation officer without the probation system.

Section 2 of the Acts provides that the probation officer shall supervise and visit the probationer.
Every probation officer is given, as to the person placed in probation under his care, the powers of
the police officer. It is the duty of the probation officer to see that the conditions which are imposed
by the court upon the probationer under his care are complied with. Among those conditions, the
following are enumerated in section 3 of the Act:

That the probationer (a) shall indulge in no injurious or vicious habits;

(b) Shall avoid places or persons of disreputable or harmful character;

(c) Shall report to the probation officer as directed by the court or probation officers;

(d) Shall permit the probation officer to visit him at reasonable times at his place of abode or
elsewhere;
 (e) Shall truthfully answer any reasonable inquiries on the part of the probation officer
concerning his conduct or condition; "(f) Shall endeavor to be employed regularly; "(g) Shall
remain or reside within a specified place or locality;

(f) Shall make reparation or restitution to the aggrieved parties for actual damages or losses
caused by his offense;

(g) Shall comply with such orders as the court may from time to time make; and

(h) Shall refrain from violating any law, statute, ordinance, or any by-law or regulation,
promulgated in accordance with law.

The court is required to notify the probation officer in writing of the period and terms of probation.
Under section 4, it is only after the period of probation, the submission of a report of the probation
officer and appropriate finding of the court that the probationer has complied with the conditions of
probation that probation may be definitely terminated and the probationer finally discharged from
supervision. Under section 5, if the court finds that there is non-compliance with said conditions, as
reported by the probation officer, it may issue a warrant for the arrest of the probationer and said
probationer may be committed with or without bail. Upon arraignment and after an opportunity to be
heard, the court may revoke, continue or modify the probation, and if revoked, the court shall order
the execution of the sentence originally imposed. Section 6 prescribes the duties of probation
officers: "It shall be the duty of every probation officer to furnish to all persons placed on probation
under his supervision a statement of the period and conditions of their probation, and to instruct
them concerning the same; to keep informed concerning their conduct and condition; to aid and
encourage them by friendly advice and admonition, and by such other measures, not inconsistent
with the conditions imposed by court as may seem most suitable, to bring about improvement in their
conduct and condition; to report in writing to the court having jurisdiction over said probationers at
least once every two months concerning their conduct and condition; to keep records of their work;
make such report as are necessary for the information of the Secretary of Justice and as the latter
may require; and to perform such other duties as are consistent with the functions of the probation
officer and as the court or judge may direct. The probation officers provided for in this Act may act as
parole officers for any penal or reformatory institution for adults when so requested by the authorities
thereof, and, when designated by the Secretary of Justice shall act as parole officer of persons
released on parole under Act Number Forty-one Hundred and Three, without additional
compensation."

It is argued, however, that even without section 11 probation officers maybe appointed in the
provinces under section 10 of Act which provides as follows:

There is hereby created in the Department of Justice and subject to its supervision and
control, a Probation Office under the direction of a Chief Probation Officer to be appointed by
the Governor-General with the advise and consent of the Senate who shall receive a salary
of four eight hundred pesos per annum. To carry out this Act there is hereby appropriated
out of any funds in the Insular Treasury not otherwise appropriated, the sum of fifty thousand
pesos to be disbursed by the Secretary of Justice, who is hereby authorized to appoint
probation officers and the administrative personnel of the probation officer under civil service
regulations from among those who possess the qualifications, training and experience
prescribed by the Bureau of Civil Service, and shall fix the compensation of such probation
officers and administrative personnel until such positions shall have been included in the
Appropriation Act.
But the probation officers and the administrative personnel referred to in the foregoing section are
clearly not those probation officers required to be appointed for the provinces under section 11. It
may be said, reddendo singula singulis, that the probation officers referred to in section 10 above-
quoted are to act as such, not in the various provinces, but in the central office known as the
Probation Office established in the Department of Justice, under the supervision of the Chief
Probation Officer. When the law provides that "the probation officer" shall investigate and make
reports to the court (secs. 1 and 4); that "the probation officer" shall supervise and visit the
probationer (sec. 2; sec. 6, par. d); that the probationer shall report to the "probationer officer" (sec.
3, par. c.), shall allow "the probationer officer" to visit him (sec. 3, par. d), shall truthfully answer any
reasonable inquiries on the part of "the probation officer" concerning his conduct or condition (sec. 3,
par. 4); that the court shall notify "the probation officer" in writing of the period and terms of probation
(sec. 3, last par.), it means the probation officer who is in charge of a particular probationer in a
particular province. It never could have been intention of the legislature, for instance, to require the
probationer in Batanes, to report to a probationer officer in the City of Manila, or to require a
probation officer in Manila to visit the probationer in the said province of Batanes, to place him under
his care, to supervise his conduct, to instruct him concerning the conditions of his probation or to
perform such other functions as are assigned to him by law.

That under section 10 the Secretary of Justice may appoint as many probation officers as there are
provinces or groups of provinces is, of course possible. But this would be arguing on what the law
may be or should be and not on what the law is. Between is and ought there is a far cry. The wisdom
and propriety of legislation is not for us to pass upon. We may think a law better otherwise than it is.
But much as has been said regarding progressive interpretation and judicial legislation we decline to
amend the law. We are not permitted to read into the law matters and provisions which are not there.
Not for any purpose — not even to save a statute from the doom of invalidity.

Upon the other hand, the clear intention and policy of the law is not to make the Insular Government
defray the salaries of probation officers in the provinces but to make the provinces defray them
should they desire to have the Probation Act apply thereto. The sum of P50,000, appropriated "to
carry out the purposes of this Act", is to be applied, among other things, for the salaries of probation
officers in the central office at Manila. These probation officers are to receive such compensations
as the Secretary of Justice may fix "until such positions shall have been included in the Appropriation
Act". It was the intention of the legislature to empower the Secretary of Justice to fix the salaries of
the probation officers in the provinces or later on to include said salaries in an appropriation act.
Considering, further, that the sum of P50,000 appropriated in section 10 is to cover, among other
things, the salaries of the administrative personnel of the Probation Office, what would be left of the
amount can hardly be said to be sufficient to pay even nominal salaries to probation officers in the
provinces. We take judicial notice of the fact that there are 48 provinces in the Philippines and we do
not think it is seriously contended that, with the fifty thousand pesos appropriated for the central
office, there can be in each province, as intended, a probation officer with a salary not lower than
that of a provincial fiscal. If this a correct, the contention that without section 11 of Act No. 4221 said
act is complete is an impracticable thing under the remainder of the Act, unless it is conceded that in
our case there can be a system of probation in the provinces without probation officers.

Probation as a development of a modern penology is a commendable system. Probation laws have

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

In arriving at this conclusion, we have endeavored to consider the different aspects presented by
able counsel for both parties, as well in their memorandums as in their oral argument. We have
examined the cases brought to our attention, and others we have been able to reach in the short
time at our command for the study and deliberation of this case. In the examination of the cases and
in then analysis of the legal principles involved we have inclined to adopt the line of action which in
our opinion, is supported better reasoned authorities and is more conducive to the general welfare.
(Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the conflict of authorities, we have
declined to be bound by certain adjudicated cases brought to our attention, except where the point
or principle is settled directly or by clear implication by the more authoritative pronouncements of the
Supreme Court of the United States. This line of approach is justified because:

(a) The constitutional relations between the Federal and the State governments of the United
States and the dual character of the American Government is a situation which does not
obtain in the Philippines;

(b) The situation of s state of the American Union of the District of Columbia with reference to
the Federal Government of the United States is not the situation of the province with respect
to the Insular Government (Art. I, sec. 8 cl. 17 and 10th Amendment, Constitution of the
United States; Sims vs. Rives, 84 Fed. [2d], 871),

(c) The distinct federal and the state judicial organizations of the United States do not
embrace the integrated judicial system of the Philippines (Schneckenburger vs. Moran
[1936], 35 Off. Gaz., p. 1317);

(d) "General propositions do not decide concrete cases" (Justice Holmes in Lochner vs. New
York [1904], 198 U. S., 45, 76; 49 Law. ed., 937, 949) and, "to keep pace with . . . new
developments of times and circumstances" (Chief Justice Waite in Pensacola Tel. Co. vs.
Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale Law Journal, Vol. XXIX,
No. 2, Dec. 1919, 141, 142), fundamental principles should be interpreted having in view
existing local conditions and environment.

Act No. 4221 is hereby declared unconstitutional and void and the writ of prohibition is, accordingly,
granted. Without any pronouncement regarding costs. So ordered.

Avanceña, C.J., Imperial, Diaz and Concepcion, JJ., concur.

Villa-real and Abad Santos, JJ., concur in the result.

G.R. No. 74457 March 20, 1987

RESTITUTO YNOT, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER, INTEGRATED NATIONAL
POLICE, BAROTAC NUEVO, ILOILO and THE REGIONAL DIRECTOR, BUREAU OF ANIMAL
INDUSTRY, REGION IV, ILOILO CITY, respondents.

Ramon A. Gonzales for petitioner.

CRUZ, J.:

The essence of due process is distilled in the immortal cry of Themistocles to Alcibiades "Strike —
but hear me first!" It is this cry that the petitioner in effect repeats here as he challenges the
constitutionality of Executive Order No. 626-A.

The said executive order reads in full as follows:

WHEREAS, the President has given orders prohibiting the interprovincial movement
of carabaos and the slaughtering of carabaos not complying with the requirements of
Executive Order No. 626 particularly with respect to age;

WHEREAS, it has been observed that despite such orders the violators still manage
to circumvent the prohibition against inter-provincial movement of carabaos by
transporting carabeef instead; and

WHEREAS, in order to achieve the purposes and objectives of Executive Order No.
626 and the prohibition against interprovincial movement of carabaos, it is necessary
to strengthen the said Executive Order and provide for the disposition of the
carabaos and carabeef subject of the violation;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by

virtue of the powers vested in me by the Constitution, do hereby promulgate the
following:

SECTION 1. Executive Order No. 626 is hereby amended such that henceforth, no
carabao regardless of age, sex, physical condition or purpose and no carabeef shall
be transported from one province to another. The carabao or carabeef transported in
violation of this Executive Order as amended shall be subject to confiscation and
forfeiture by the government, to be distributed to charitable institutions and other
similar institutions as the Chairman of the National Meat Inspection Commission may
ay see fit, in the case of carabeef, and to deserving farmers through dispersal as the
Director of Animal Industry may see fit, in the case of carabaos.

SECTION 2. This Executive Order shall take effect immediately.

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

Preside
nt
 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, *   which upheld the trial court, ** and
3

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   is not applicable 5

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.   We have jurisdiction under the
6

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.   This simply means that the resolution of such cases may
7

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,"   to 8

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,   and so heal the wound or excise the affliction.
9

Judicial power authorizes this; and when the exercise is demanded, there should be no shirking of
the task for fear of retaliation, or loss of favor, or popular censure, or any other similar inhibition
unworthy of the bench, especially this Court.

The challenged measure is denominated an executive order but it is really presidential decree,
promulgating a new rule instead of merely implementing an existing law. It was issued by President
Marcos not for the purpose of taking care that the laws were faithfully executed but in the exercise of
his legislative authority under Amendment No. 6. It was provided thereunder that whenever in his
judgment there existed a grave emergency or a threat or imminence thereof or whenever the
legislature failed or was unable to act adequately on any matter that in his judgment required
immediate action, he could, in order to meet the exigency, issue decrees, orders or letters of
instruction that were to have the force and effect of law. As there is no showing of any exigency to
justify the exercise of that extraordinary power then, the petitioner has reason, indeed, to question
the validity of the executive order. Nevertheless, since the determination of the grounds was
supposed to have been made by the President "in his judgment, " a phrase that will lead to
protracted discussion not really necessary at this time, we reserve resolution of this matter until a
more appropriate occasion. For the nonce, we confine ourselves to the more fundamental question
of due process.

It is part of the art of constitution-making that the provisions of the charter be cast in precise and
unmistakable language to avoid controversies that might arise on their correct interpretation. That is
the Ideal. In the case of the due process clause, however, this rule was deliberately not followed and
the wording was purposely kept ambiguous. In fact, a proposal to delineate it more clearly was
submitted in the Constitutional Convention of 1934, but it was rejected by Delegate Jose P. Laurel,
Chairman of the Committee on the Bill of Rights, who forcefully argued against it. He was sustained
by the body. 10

The due process clause was kept intentionally vague so it would remain also conveniently resilient. This was felt necessary because due
process is not, like some provisions of the fundamental law, an "iron rule" laying down an implacable and immutable command for all
seasons and all persons. Flexibility must be the best virtue of the guaranty. The very elasticity of the due process clause was meant to make
it adapt easily to every situation, enlarging or constricting its protection as the changing times and circumstances may require.

Aware of this, the courts have also hesitated to adopt their own specific description of due process
lest they confine themselves in a legal straitjacket that will deprive them of the elbow room they may
need to vary the meaning of the clause whenever indicated. Instead, they have preferred to leave
the import of the protection open-ended, as it were, to be "gradually ascertained by the process of
inclusion and exclusion in the course of the decision of cases as they arise." 11 Thus, Justice Felix Frankfurter
of the U.S. Supreme Court, for example, would go no farther than to define due process — and in so doing sums it all up — as nothing more
and nothing less than "the embodiment of the sporting Idea of fair play." 12

When the barons of England extracted from their sovereign liege the reluctant promise that that Crown would thenceforth not proceed
against the life liberty or property of any of its subjects except by the lawful judgment of his peers or the law of the land, they thereby won for
themselves and their progeny that splendid guaranty of fairness that is now the hallmark of the free society. The solemn vow that King John
made at Runnymede in 1215 has since then resounded through the ages, as a ringing reminder to all rulers, benevolent or base, that every
person, when confronted by the stern visage of the law, is entitled to have his say in a fair and open hearing of his cause.

The closed mind has no place in the open society. It is part of the sporting Idea of fair play to hear
"the other side" before an opinion is formed or a decision is made by those who sit in judgment.
Obviously, one side is only one-half of the question; the other half must also be considered if an
impartial verdict is to be reached based on an informed appreciation of the issues in contention. It is
indispensable that the two sides complement each other, as unto the bow the arrow, in leading to
the correct ruling after examination of the problem not from one or the other perspective only but in
its totality. A judgment based on less that this full appraisal, on the pretext that a hearing is
unnecessary or useless, is tainted with the vice of bias or intolerance or ignorance, or worst of all, in
repressive regimes, the insolence of power.

The minimum requirements of due process are notice and hearing 13 which, generally speaking, may not be
dispensed with because they are intended as a safeguard against official arbitrariness. It is a gratifying commentary on our judicial system
that the jurisprudence of this country is rich with applications of this guaranty as proof of our fealty to the rule of law and the ancient
rudiments of fair play. We have consistently declared that every person, faced by the awesome power of the State, is entitled to "the law of
the land," which Daniel Webster described almost two hundred years ago in the famous Dartmouth College Case, 14 as "the law which hears
before it condemns, which proceeds upon inquiry and renders judgment only after trial." It has to be so if the rights of every person are to be
secured beyond the reach of officials who, out of mistaken zeal or plain arrogance, would degrade the due process clause into a worn and
empty catchword.
This is not to say that notice and hearing are imperative in every case for, to be sure, there are a
number of admitted exceptions. The conclusive presumption, for example, bars the admission of
contrary evidence as long as such presumption is based on human experience or there is a rational
connection between the fact proved and the fact ultimately presumed therefrom. 15 There are instances
when the need for expeditions action will justify omission of these requisites, as in the summary abatement of a nuisance per se, like a mad
dog on the loose, which may be killed on sight because of the immediate danger it poses to the safety and lives of the people. Pornographic
materials, contaminated meat and narcotic drugs are inherently pernicious and may be summarily destroyed. The passport of a person
sought for a criminal offense may be cancelled without hearing, to compel his return to the country he has fled. 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 "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.   In the exceptional cases accepted,
20

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,   Executive Order No. 626-A is penal in nature, the violation thereof should have been
21

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.

Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Gancayco, Padilla Bidin Sarmiento
and Cortes, JJ., concur.

Melencio-Herrera and Feliciano, JJ., are on leave.

G.R. No. 181704               December 6, 2011

BUREAU OF CUSTOMS EMPLOYEES ASSOCIATION (BOCEA), represented by its National
President (BOCEA National Executive Council) Mr. Romulo A. Pagulayan, Petitioner,
vs.
HON. MARGARITO B. TEVES, in his capacity as Secretary of the Department of Finance,
HON. NAPOLEON L. MORALES, in his capacity as Commissioner of the Bureau of Customs,
HON. LILIAN B. HEFTI, in her capacity as Commissioner of the Bureau of Internal
Revenue, Respondents.

DECISION

VILLARAMA, JR., J.:

Before this Court is a petition1 for certiorari and prohibition with prayer for injunctive relief/s under
Rule 65 of the 1997 Rules of Civil Procedure, as amended, to declare Republic Act (R.A.) No.
9335,2 otherwise known as the Attrition Act of 2005, and its Implementing Rules and
Regulations3 (IRR) unconstitutional, and the implementation thereof be enjoined permanently.

The Facts

On January 25, 2005, former President Gloria Macapagal-Arroyo signed into law R.A. No. 9335
which took effect on February 11, 2005.

In Abakada Guro Party List v. Purisima 4 (Abakada), we said of R.A. No. 9335:

RA [No.] 9335 was enacted to optimize the revenue-generation capability and collection of the
Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC). The law intends to encourage
BIR and BOC officials and employees to exceed their revenue targets by providing a system of
rewards and sanctions through the creation of a Rewards and Incentives Fund (Fund) and a
Revenue Performance Evaluation Board (Board). It covers all officials and employees of the BIR and
the BOC with at least six months of service, regardless of employment status.

The Fund is sourced from the collection of the BIR and the BOC in excess of their revenue targets
for the year, as determined by the Development Budget and Coordinating Committee (DBCC). Any
incentive or reward is taken from the fund and allocated to the BIR and the BOC in proportion to their
contribution in the excess collection of the targeted amount of tax revenue.

The Boards in the BIR and the BOC are composed of the Secretary of the Department of Finance
(DOF) or his/her Undersecretary, the Secretary of the Department of Budget and Management
(DBM) or his/her Undersecretary, the Director General of the National Economic Development
Authority (NEDA) or his/her Deputy Director General, the Commissioners of the BIR and the BOC or
their Deputy Commissioners, two representatives from the rank-and-file employees and a
representative from the officials nominated by their recognized organization.

Each Board has the duty to (1) prescribe the rules and guidelines for the allocation, distribution and
release of the Fund; (2) set criteria and procedures for removing from the service officials and
employees whose revenue collection falls short of the target; (3) terminate personnel in accordance
with the criteria adopted by the Board; (4) prescribe a system for performance evaluation; (5)
perform other functions, including the issuance of rules and regulations and (6) submit an annual
report to Congress.
The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked to
promulgate and issue the implementing rules and regulations of RA [No.] 9335, to be approved by a
Joint Congressional Oversight Committee created for such purpose. 5

The Joint Congressional Oversight Committee approved the assailed IRR on May 22, 2006.
Subsequently, the IRR was published on May 30, 2006 in two newspapers of general circulation, the
Philippine Star and the Manila Standard, and became effective fifteen (15) days later. 6

Contending that the enactment and implementation of R.A. No. 9335 are tainted with constitutional
infirmities in violation of the fundamental rights of its members, petitioner Bureau of Customs
Employees Association (BOCEA), an association of rank-and-file employees of the Bureau of
Customs (BOC), duly registered with the Department of Labor and Employment (DOLE) and the
Civil Service Commission (CSC), and represented by its National President, Mr. Romulo A.
Pagulayan (Pagulayan), directly filed the present petition before this Court against respondents
Margarito B. Teves, in his capacity as Secretary of the Department of Finance (DOF), Commissioner
Napoleon L. Morales (Commissioner Morales), in his capacity as BOC Commissioner, and Lilian B.
Hefti, in her capacity as Commissioner of the Bureau of Internal Revenue (BIR). In its petition,
BOCEA made the following averments:

Sometime in 2008, high-ranking officials of the BOC pursuant to the mandate of R.A. No. 9335 and
its IRR, and in order to comply with the stringent deadlines thereof, started to disseminate Collection
District Performance Contracts7 (Performance Contracts) for the lower ranking officials and rank-
and-file employees to sign. The Performance Contract pertinently provided:

xxxx

WHEREAS, pursuant to the provisions of Sec. 25 (b) of the Implementing Rules and Regulations
(IRR) of the Attrition Act of 2005, that provides for the setting of criteria and procedures for removing
from the service Officials and Employees whose revenue collection fall short of the target in
accordance with Section 7 of Republic Act 9335.

xxxx

NOW, THEREFORE, for and in consideration of the foregoing premises, parties unto this Agreement
hereby agree and so agreed to perform the following:

xxxx

2. The "Section 2, PA/PE" hereby accepts the allocated Revenue Collection Target and further
accepts/commits to meet the said target under the following conditions:

a.) That he/she will meet the allocated Revenue Collection Target and thereby undertakes
and binds himself/herself that in the event the revenue collection falls short of the target with
due consideration of all relevant factors affecting the level of collection as provided in the
rules and regulations promulgated under the Act and its IRR, he/she will voluntarily submit to
the provisions of Sec. 25 (b) of the IRR and Sec. 7 of the Act; and

b.) That he/she will cascade and/or allocate to respective Appraisers/Examiners or

Employees under his/her section the said Revenue Collection Target and require them to
execute a Performance Contract, and direct them to accept their individual target. The
 Performance Contract executed by the respective Examiners/Appraisers/Employees shall be
submitted to the Office of the Commissioner through the LAIC on or before March 31, 2008.

x x x x8

BOCEA opined that the revenue target was impossible to meet due to the Government’s own
policies on reduced tariff rates and tax breaks to big businesses, the occurrence of natural calamities
and because of other economic factors. BOCEA claimed that some BOC employees were coerced
and forced to sign the Performance Contract. The majority of them, however, did not sign. In
particular, officers of BOCEA were summoned and required to sign the Performance Contracts but
they also refused. To ease the brewing tension, BOCEA claimed that its officers sent letters, and
sought several dialogues with BOC officials but the latter refused to heed them.

In addition, BOCEA alleged that Commissioner Morales exerted heavy pressure on the District
Collectors, Chiefs of Formal Entry Divisions, Principal Customs Appraisers and Principal Customs
Examiners of the BOC during command conferences to make them sign their Performance
Contracts. Likewise, BOC Deputy Commissioner Reynaldo Umali (Deputy Commissioner Umali)
individually spoke to said personnel to convince them to sign said contracts. Said personnel were
threatened that if they do not sign their respective Performance Contracts, they would face possible
reassignment, reshuffling, or worse, be placed on floating status. Thus, all the District Collectors,
except a certain Atty. Carlos So of the Collection District III of the Ninoy Aquino International Airport
(NAIA), signed the Performance Contracts.

BOCEA further claimed that Pagulayan was constantly harassed and threatened with lawsuits.
Pagulayan approached Deputy Commissioner Umali to ask the BOC officials to stop all forms of
harassment, but the latter merely said that he would look into the matter. On February 5, 2008,
BOCEA through counsel wrote the Revenue Performance Evaluation Board (Board) to desist from
implementing R.A. No. 9335 and its IRR and from requiring rank-and-file employees of the BOC and
BIR to sign Performance Contracts.9 In his letter-reply10 dated February 12, 2008, Deputy
Commissioner Umali denied having coerced any BOC employee to sign a Performance Contract. He
also defended the BOC, invoking its mandate of merely implementing the law. Finally, Pagulayan
and BOCEA’s counsel, on separate occasions, requested for a certified true copy of the
Performance Contract from Deputy Commissioner Umali but the latter failed to furnish them a copy. 11

This petition was filed directly with this Court on March 3, 2008. BOCEA asserted that in view of the
unconstitutionality of R.A. No. 9335 and its IRR, and their adverse effects on the constitutional rights
of BOC officials and employees, direct resort to this Court is justified. BOCEA argued, among others,
that its members and other BOC employees are in great danger of losing their jobs should they fail
to meet the required quota provided under the law, in clear violation of their constitutional right to
security of tenure, and at their and their respective families’ prejudice.

In their Comment,12 respondents, through the Office of the Solicitor General (OSG), countered that
R.A. No. 9335 and its IRR do not violate the right to due process and right to security of tenure of
BIR and BOC employees. The OSG stressed that the guarantee of security of tenure under the 1987
Constitution is not a guarantee of perpetual employment. R.A. No. 9335 and its IRR provided a
reasonable and valid ground for the dismissal of an employee which is germane to the purpose of
the law. Likewise, R.A. No. 9335 and its IRR provided that an employee may only be separated from
the service upon compliance with substantive and procedural due process. The OSG added that
R.A. No. 9335 and its IRR must enjoy the presumption of constitutionality.

In its Reply,13 BOCEA claimed that R.A. No. 9335 employs means that are unreasonable to achieve
its stated objectives; that the law is unduly oppressive of BIR and BOC employees as it shifts the
extreme burden upon their shoulders when the Government itself has adopted measures that make
collection difficult such as reduced tariff rates to almost zero percent and tax exemption of big
businesses; and that the law is discriminatory of BIR and BOC employees. BOCEA manifested that
only the high-ranking officials of the BOC benefited largely from the reward system under R.A. No.
9335 despite the fact that they were not the ones directly toiling to collect revenue. Moreover,
despite the BOCEA’s numerous requests,14 BOC continually refused to provide BOCEA the
Expenditure Plan on how such reward was distributed.

Since BOCEA was seeking similar reliefs as that of the petitioners in Abakada Guro Party List v.
Purisima, BOCEA filed a Motion to Consolidate15 the present case with Abakada on April 16, 2008.
However, pending action on said motion, the Court rendered its decision in Abakada on August 14,
2008. Thus, the consolidation of this case with Abakada was rendered no longer possible. 16

In Abakada, this Court, through then Associate Justice, now Chief Justice Renato C. Corona,
declared Section 1217 of R.A. No. 9335 creating a Joint Congressional Oversight Committee to
approve the IRR as unconstitutional and violative of the principle of separation of powers. However,
the constitutionality of the remaining provisions of R.A. No. 9335 was upheld pursuant to Section
1318 of R.A. No. 9335. The Court also held that until the contrary is shown, the IRR of R.A. No. 9335
is presumed valid and effective even without the approval of the Joint Congressional Oversight
Committee.19

Notwithstanding our ruling in Abakada, both parties complied with our Resolution 20 dated February
10, 2009, requiring them to submit their respective Memoranda.

The Issues

BOCEA raises the following issues:

I.

WHETHER OR NOT THE ATTRITION LAW, REPUBLIC ACT [NO.] 9335, AND ITS
IMPLEMENTING RULES AND REGULATIONS ARE UNCONSTITUTIONAL AS THESE VIOLATE
THE RIGHT TO DUE PROCESS OF THE COVERED BIR AND BOC OFFICIALS AND
EMPLOYEES[;]

II.

WHETHER OR NOT THE ATTRITION LAW, REPUBLIC ACT [NO.] 9335, AND ITS
IMPLEMENTING RULES AND REGULATIONS ARE UNCONSTITUTIONAL AS THESE VIOLATE
THE RIGHT OF BIR AND BOC OFFICIALS AND EMPLOYEES TO THE EQUAL PROTECTION OF
THE LAWS[;]

III.

WHETHER OR NOT REPUBLIC ACT [NO.] 9335 AND ITS IMPLEMENTING RULES AND
REGULATIONS VIOLATE THE RIGHT TO SECURITY OF TENURE OF BIR AND BOC OFFICIALS
AND EMPLOYEES AS ENSHRINED UNDER SECTION 2 (3), ARTICLE IX (B) OF THE
CONSTITUTION[;]

IV.
WHETHER OR NOT REPUBLIC ACT [NO.] 9335 AND ITS IMPLEMENTING RULES AND
REGULATIONS ARE UNCONSTITUTIONAL AS THEY CONSTITUTE UNDUE DELEGATION OF
LEGISLATIVE POWERS TO THE REVENUE PERFORMANCE EVALUATION BOARD IN
VIOLATION OF THE PRINCIPLE OF SEPARATION OF POWERS ENSHRINED IN THE
CONSTITUTION[; AND]

V.

WHETHER OR NOT REPUBLIC ACT [NO.] 9335 IS A BILL OF ATTAINDER AND HENCE[,]
UNCONSTITUTIONAL BECAUSE IT INFLICTS PUNISHMENT THROUGH LEGISLATIVE FIAT
UPON A PARTICULAR GROUP OR CLASS OF OFFICIALS AND EMPLOYEES WITHOUT TRIAL. 21

BOCEA manifested that while waiting for the Court to give due course to its petition, events unfolded
showing the patent unconstitutionality of R.A. No. 9335. It narrated that during the first year of the
implementation of R.A. No. 9335, BOC employees exerted commendable efforts to attain their
revenue target of ₱196 billion which they surpassed by as much as ₱2 billion for that year alone.
However, this was attained only because oil companies made advance tax payments to BOC.
Moreover, BOC employees were given their "reward" for surpassing said target only in 2008, the
distribution of which they described as unjust, unfair, dubious and fraudulent because only top
officials of BOC got the huge sum of reward while the employees, who did the hard task of
collecting, received a mere pittance of around ₱8,500.00. In the same manner, the Bonds Division of
BOC-NAIA collected 400+% of its designated target but the higher management gave out to the
employees a measly sum of ₱8,500.00 while the top level officials partook of millions of the excess
collections. BOCEA relies on a piece of information revealed by a newspaper showing the list of
BOC officials who apparently earned huge amounts of money by way of reward. 22 It claims that the
recipients thereof included lawyers, support personnel and other employees, including a dentist, who
performed no collection functions at all. These alleged anomalous selection, distribution and
allocation of rewards was due to the failure of R.A. No. 9335 to set out clear guidelines. 23

In addition, BOCEA avers that the Board initiated the first few cases of attrition for the Fiscal Year
2007 by subjecting five BOC officials from the Port of Manila to attrition despite the fact that the Port
of Manila substantially complied with the provisions of R.A. No. 9335. It is thus submitted that the
selection of these officials for attrition without proper investigation was nothing less than arbitrary.
Further, the legislative and executive departments’ promulgation of issuances and the Government’s
accession to regional trade agreements have caused a significant diminution of the tariff rates, thus,
decreasing over-all collection. These unrealistic settings of revenue targets seriously affect BIR and
BOC employees tasked with the burden of collection, and worse, subjected them to attrition. 24

BOCEA assails the constitutionality of R.A. No. 9335 and its IRR on the following grounds:

1. R.A. No. 9335 and its IRR violate the BIR and BOC employees’ right to due process
because the termination of employees who had not attained their revenue targets for the
year is peremptory and done without any form of hearing to allow said employees to ventilate
their side. Moreover, R.A. No. 9335 and its IRR do not comply with the requirements under
CSC rules and regulations as the dismissal in this case is immediately executory. Such
immediately executory nature of the Board’s decision negates the remedies available to an
employee as provided under the CSC rules.

2. R.A. No. 9335 and its IRR violate the BIR and BOC employees’ right to equal protection of
the law because R.A. No. 9335 and its IRR unduly discriminates against BIR and BOC
employees as compared to employees of other revenue generating government agencies
like the Philippine Amusement and Gaming Corporation, Department of Transportation and
 Communication, the Air Transportation Office, the Land Transportation Office, and the
Philippine Charity Sweepstakes Office, among others, which are not subject to attrition.

3. R.A. No. 9335 and its IRR violate the BIR and BOC employees’ right to security of tenure
because R.A. No. 9335 and its IRR effectively removed remedies provided in the ordinary
course of administrative procedure afforded to government employees. The law likewise
created another ground for dismissal, i.e., non-attainment of revenue collection target, which
is not provided under CSC rules and which is, by its nature, unpredictable and therefore
arbitrary and unreasonable.

4. R.A. No. 9335 and its IRR violate the 1987 Constitution because Congress granted to the
Revenue Performance Evaluation Board (Board) the unbridled discretion of formulating the
criteria for termination, the manner of allocating targets, the distribution of rewards and the
determination of relevant factors affecting the targets of collection, which is tantamount to
undue delegation of legislative power.

5. R.A. No. 9335 is a bill of attainder because it inflicts punishment upon a particular group or
class of officials and employees without trial. This is evident from the fact that the law confers
upon the Board the power to impose the penalty of removal upon employees who do not
meet their revenue targets; that the same is without the benefit of hearing; and that the
removal from service is immediately executory. Lastly, it disregards the presumption of
regularity in the performance of the official functions of a public officer. 25

On the other hand, respondents through the OSG stress that except for Section 12 of R.A. No. 9335,
R.A. No. 9335 and its IRR are constitutional, as per our ruling in Abakada. Nevertheless, the OSG
argues that the classification of BIR and BOC employees as public officers under R.A. No. 9335 is
based on a valid and substantial distinction since the revenue generated by the BIR and BOC is
essentially in the form of taxes, which is the lifeblood of the State, while the revenue produced by
other agencies is merely incidental or secondary to their governmental functions; that in view of their
mandate, and for purposes of tax collection, the BIR and BOC are sui generis; that R.A. No. 9335
complies with the "completeness" and "sufficient standard" tests for the permissive delegation of
legislative power to the Board; that the Board exercises its delegated power consistent with the
policy laid down in the law, that is, to optimize the revenue generation capability and collection of the
BIR and the BOC; that parameters were set in order that the Board may identify the officials and
employees subject to attrition, and the proper procedure for their removal in case they fail to meet
the targets set in the Performance Contract were provided; and that the rights of BIR and BOC
employees to due process of law and security of tenure are duly accorded by R.A. No. 9335. The
OSG likewise maintains that there was no encroachment of judicial power in the enactment of R.A.
No. 9335 amounting to a bill of attainder since R.A. No. 9335 and its IRR merely defined the offense
and provided for the penalty that may be imposed. Finally, the OSG reiterates that the separation
from the service of any BIR or BOC employee under R.A. No. 9335 and its IRR shall be done only
upon due consideration of all relevant factors affecting the level of collection, subject to Civil Service
laws, rules and regulations, and in compliance with substantive and procedural due process. The
OSG opines that the Performance Contract, far from violating the BIR and BOC employees’ right to
due process, actually serves as a notice of the revenue target they have to meet and the possible
consequences of failing to meet the same. More, there is nothing in the law which prevents the
aggrieved party from appealing the unfavorable decision of dismissal. 26

In essence, the issues for our resolution are:

1. Whether there is undue delegation of legislative power to the Board;

 2. Whether R.A. No. 9335 and its IRR violate the rights of BOCEA’s members to: (a) equal
protection of laws, (b) security of tenure and (c) due process; and

3. Whether R.A. No. 9335 is a bill of attainder.

Our Ruling

Prefatorily, we note that it is clear, and in fact uncontroverted, that BOCEA has locus standi. BOCEA
impugns the constitutionality of R.A. No. 9335 and its IRR because its members, who are rank-and-
file employees of the BOC, are actually covered by the law and its IRR. BOCEA’s members have a
personal and substantial interest in the case, such that they have sustained or will sustain, direct
injury as a result of the enforcement of R.A. No. 9335 and its IRR.27

However, we find no merit in the petition and perforce dismiss the same.

It must be noted that this is not the first time the constitutionality of R.A. No. 9335 and its IRR are
being challenged. The Court already settled the majority of the same issues raised by BOCEA in our
decision in Abakada, which attained finality on September 17, 2008. As such, our ruling therein is
worthy of reiteration in this case.

We resolve the first issue in the negative.

The principle of separation of powers ordains that each of the three great branches of government
has exclusive cognizance of and is supreme in matters falling within its own constitutionally allocated
sphere.28 Necessarily imbedded in this doctrine is the principle of non-delegation of powers, as
expressed in the Latin maxim potestas delegata non delegari potest, which means "what has been
delegated, cannot be delegated." This doctrine is based on the ethical principle that such delegated
power constitutes not only a right but a duty to be performed by the delegate through the
instrumentality of his own judgment and not through the intervening mind of another. 29 However, this
principle of non-delegation of powers admits of numerous exceptions, 30 one of which is the
delegation of legislative power to various specialized administrative agencies like the Board in this
case.

The rationale for the aforementioned exception was clearly explained in our ruling in Gerochi v.
Department of Energy,31 to wit:

In the face of the increasing complexity of modern life, delegation of legislative power to various
specialized administrative agencies is allowed as an exception to this principle. Given the volume
and variety of interactions in today’s society, it is doubtful if the legislature can promulgate laws that
will deal adequately with and respond promptly to the minutiae of everyday life. Hence, the need to
delegate to administrative bodies — the principal agencies tasked to execute laws in their
specialized fields — the authority to promulgate rules and regulations to implement a given statute
and effectuate its policies. All that is required for the valid exercise of this power of subordinate
legislation is that the regulation be germane to the objects and purposes of the law and that the
regulation be not in contradiction to, but in conformity with, the standards prescribed by the law.
These requirements are denominated as the completeness test and the sufficient standard test. 32

Thus, in Abakada, we held,

Two tests determine the validity of delegation of legislative power: (1) the completeness test and (2)
the sufficient standard test. A law is complete when it sets forth therein the policy to be executed,
carried out or implemented by the delegate. It lays down a sufficient standard when it provides
adequate guidelines or limitations in the law to map out the boundaries of the delegate’s authority
and prevent the delegation from running riot. To be sufficient, the standard must specify the limits of
the delegate’s authority, announce the legislative policy and identify the conditions under which it is
to be implemented.

RA [No.] 9335 adequately states the policy and standards to guide the President in fixing revenue
targets and the implementing agencies in carrying out the provisions of the law. Section 2 spells out
the policy of the law:

"SEC. 2. Declaration of Policy. — It is the policy of the State to optimize the revenue-generation
capability and collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC)
by providing for a system of rewards and sanctions through the creation of a Rewards and
Incentives Fund and a Revenue Performance Evaluation Board in the above agencies for the
purpose of encouraging their officials and employees to exceed their revenue targets."

Section 4 "canalized within banks that keep it from overflowing" the delegated power to the
President to fix revenue targets:

"SEC. 4. Rewards and Incentives Fund. — A Rewards and Incentives Fund, hereinafter referred to
as the Fund, is hereby created, to be sourced from the collection of the BIR and the BOC in excess
of their respective revenue targets of the year, as determined by the Development Budget and
Coordinating Committee (DBCC), in the following percentages:

Excess of Collection [Over] the   Percent (%) of the Excess

Revenue Targets Collection to Accrue to the
Fund
30% or below — 15%
More than 30% — 15% of the first 30% plus 20%
of the remaining excess

The Fund shall be deemed automatically appropriated the year immediately following the year when
the revenue collection target was exceeded and shall be released on the same fiscal year.

Revenue targets shall refer to the original estimated revenue collection expected of the BIR and the
BOC for a given fiscal year as stated in the Budget of Expenditures and Sources of Financing
(BESF) submitted by the President to Congress. The BIR and the BOC shall submit to the DBCC the
distribution of the agencies’ revenue targets as allocated among its revenue districts in the case of
the BIR, and the collection districts in the case of the BOC.

x x x           x x x          x x x"

Revenue targets are based on the original estimated revenue collection expected respectively of the
BIR and the BOC for a given fiscal year as approved by the DBCC and stated in the BESF submitted
by the President to Congress. Thus, the determination of revenue targets does not rest solely on the
President as it also undergoes the scrutiny of the DBCC.

On the other hand, Section 7 specifies the limits of the Board’s authority and identifies the conditions
under which officials and employees whose revenue collection falls short of the target by at least
7.5% may be removed from the service:
"SEC. 7. Powers and Functions of the Board. — The Board in the agency shall have the following
powers and functions:

x x x           x x x          x x x

(b) To set the criteria and procedures for removing from service officials and employees whose
revenue collection falls short of the target by at least seven and a half percent (7.5%), with due
consideration of all relevant factors affecting the level of collection as provided in the rules and
regulations promulgated under this Act, subject to civil service laws, rules and regulations and
compliance with substantive and procedural due process: Provided, That the following exemptions
shall apply:

1. Where the district or area of responsibility is newly-created, not exceeding two years in
operation, and has no historical record of collection performance that can be used as basis
for evaluation; and

2. Where the revenue or customs official or employee is a recent transferee in the middle of
the period under consideration unless the transfer was due to nonperformance of revenue
targets or potential nonperformance of revenue targets: Provided, however, That when the
district or area of responsibility covered by revenue or customs officials or employees has
suffered from economic difficulties brought about by natural calamities or force majeure or
economic causes as may be determined by the Board, termination shall be considered only
after careful and proper review by the Board.

(c) To terminate personnel in accordance with the criteria adopted in the preceding paragraph:
Provided, That such decision shall be immediately executory: Provided, further, That the application
of the criteria for the separation of an official or employee from service under this Act shall be without
prejudice to the application of other relevant laws on accountability of public officers and employees,
such as the Code of Conduct and Ethical Standards of Public Officers and Employees and the Anti-
Graft and Corrupt Practices Act;

x x x           x x x          x x x"

At any rate, this Court has recognized the following as sufficient standards: "public interest", "justice
and equity", "public convenience and welfare" and "simplicity, economy and welfare". In this case,
the declared policy of optimization of the revenue-generation capability and collection of the BIR and
the BOC is infused with public interest.33

We could not but deduce that the completeness test and the sufficient standard test were fully
satisfied by R.A. No. 9335, as evident from the aforementioned Sections 2, 4 and 7 thereof.
Moreover, Section 534 of R.A. No. 9335 also provides for the incentives due to District Collection
Offices. While it is apparent that the last paragraph of Section 5 provides that "[t]he allocation,
distribution and release of the district reward shall likewise be prescribed by the rules and
regulations of the Revenue Performance and Evaluation Board," Section 7 (a) 35 of R.A. No. 9335
clearly mandates and sets the parameters for the Board by providing that such rules and guidelines
for the allocation, distribution and release of the fund shall be in accordance with Sections 4 and 5 of
R.A. No. 9335. In sum, the Court finds that R.A. No. 9335, read and appreciated in its entirety, is
complete in all its essential terms and conditions, and that it contains sufficient standards as to
negate BOCEA’s supposition of undue delegation of legislative power to the Board.

Similarly, we resolve the second issue in the negative.

Equal protection simply provides that all persons or things similarly situated should be treated in a
similar manner, both as to rights conferred and responsibilities imposed. The purpose of the equal
protection clause is to secure every person within a state’s jurisdiction against intentional and
arbitrary discrimination, whether occasioned by the express terms of a statute or by its improper
execution through the state’s duly constituted authorities. In other words, the concept of equal justice
under the law requires the state to govern impartially, and it may not draw distinctions between
individuals solely on differences that are irrelevant to a legitimate governmental objective. 36
1awphil

Thus, on the issue on equal protection of the laws, we held in Abakada:

The equal protection clause recognizes a valid classification, that is, a classification that has a
reasonable foundation or rational basis and not arbitrary. With respect to RA [No.] 9335, its
expressed public policy is the optimization of the revenue-generation capability and collection of the
BIR and the BOC. Since the subject of the law is the revenue-generation capability and collection of
the BIR and the BOC, the incentives and/or sanctions provided in the law should logically pertain to
the said agencies. Moreover, the law concerns only the BIR and the BOC because they have the
common distinct primary function of generating revenues for the national government through the
collection of taxes, customs duties, fees and charges.

The BIR performs the following functions:

"Sec. 18. The Bureau of Internal Revenue. — The Bureau of Internal Revenue, which shall be
headed by and subject to the supervision and control of the Commissioner of Internal Revenue, who
shall be appointed by the President upon the recommendation of the Secretary [of the DOF], shall
have the following functions:

(1) Assess and collect all taxes, fees and charges and account for all revenues collected;

(2) Exercise duly delegated police powers for the proper performance of its functions and
duties;

(3) Prevent and prosecute tax evasions and all other illegal economic activities;

(4) Exercise supervision and control over its constituent and subordinate units; and

(5) Perform such other functions as may be provided by law.

x x x           x x x          x x x"

On the other hand, the BOC has the following functions:

"Sec. 23. The Bureau of Customs. — The Bureau of Customs which shall be headed and subject to
the management and control of the Commissioner of Customs, who shall be appointed by the
President upon the recommendation of the Secretary [of the DOF] and hereinafter referred to as
Commissioner, shall have the following functions:

(1) Collect custom duties, taxes and the corresponding fees, charges and penalties;

(2) Account for all customs revenues collected;

(3) Exercise police authority for the enforcement of tariff and customs laws;
 (4) Prevent and suppress smuggling, pilferage and all other economic frauds within all ports
of entry;

(5) Supervise and control exports, imports, foreign mails and the clearance of vessels and
aircrafts in all ports of entry;

(6) Administer all legal requirements that are appropriate;

(7) Prevent and prosecute smuggling and other illegal activities in all ports under its
jurisdiction;

(8) Exercise supervision and control over its constituent units;

(9) Perform such other functions as may be provided by law.

x x x           x x x          x x x"

Both the BIR and the BOC are bureaus under the DOF. They principally perform the special function
of being the instrumentalities through which the State exercises one of its great inherent functions —
taxation. Indubitably, such substantial distinction is germane and intimately related to the purpose of
the law. Hence, the classification and treatment accorded to the BIR and the BOC under RA [No.]
9335 fully satisfy the demands of equal protection.37

As it was imperatively correlated to the issue on equal protection, the issues on the security of
tenure of affected BIR and BOC officials and employees and their entitlement to due process were
also settled in Abakada:

Clearly, RA [No.] 9335 in no way violates the security of tenure of officials and employees of the BIR
and the BOC. The guarantee of security of tenure only means that an employee cannot be
dismissed from the service for causes other than those provided by law and only after due process is
accorded the employee. In the case of RA [No.] 9335, it lays down a reasonable yardstick for
removal (when the revenue collection falls short of the target by at least 7.5%) with due
consideration of all relevant factors affecting the level of collection. This standard is analogous to
inefficiency and incompetence in the performance of official duties, a ground for disciplinary action
under civil service laws. The action for removal is also subject to civil service laws, rules and
regulations and compliance with substantive and procedural due process.38

In addition, the essence of due process is simply an opportunity to be heard, or as applied to

administrative proceedings, a fair and reasonable opportunity to explain one’s side. 39 BOCEA’s
apprehension of deprivation of due process finds its answer in Section 7 (b) and (c) of R.A. No.
9335.40 The concerned BIR or BOC official or employee is not simply given a target revenue
collection and capriciously left without any quarter. R.A. No. 9335 and its IRR clearly give due
consideration to all relevant factors41 that may affect the level of collection. In the same manner,
exemptions42 were set, contravening BOCEA’s claim that its members may be removed for
unattained target collection even due to causes which are beyond their control. Moreover, an
employee’s right to be heard is not at all prevented and his right to appeal is not deprived of him. 43 In
fine, a BIR or BOC official or employee in this case cannot be arbitrarily removed from the service
without according him his constitutional right to due process. No less than R.A. No. 9335 in
accordance with the 1987 Constitution guarantees this.
We have spoken, and these issues were finally laid to rest. Now, the Court proceeds to resolve the
last, but new issue raised by BOCEA, that is, whether R.A. No. 9335 is a bill of attainder proscribed
under Section 22,44 Article III of the 1987 Constitution.

On this score, we hold that R.A. No. 9335 is not a bill of attainder. A bill of attainder is a legislative
act which inflicts punishment on individuals or members of a particular group without a judicial trial.
Essential to a bill of attainder are a specification of certain individuals or a group of individuals, the
imposition of a punishment, penal or otherwise, and the lack of judicial trial. 451avvphi1

In his Concurring Opinion in Tuason v. Register of Deeds, Caloocan City, 46 Justice Florentino P.
Feliciano traces the roots of a Bill of Attainder, to wit:

Bills of attainder are an ancient instrument of tyranny. In England a few centuries back, Parliament
would at times enact bills or statutes which declared certain persons attainted and their blood
corrupted so that it lost all heritable quality (Ex Parte Garland, 4 Wall. 333, 18 L.Ed. 366 [1867]). In
more modern terms, a bill of attainder is essentially a usurpation of judicial power by a legislative
body. It envisages and effects the imposition of a penalty — the deprivation of life or liberty or
property — not by the ordinary processes of judicial trial, but by legislative fiat. While cast in the form
of special legislation, a bill of attainder (or bill of pains and penalties, if it prescribed a penalty other
than death) is in intent and effect a penal judgment visited upon an identified person or group of
persons (and not upon the general community) without a prior charge or demand, without notice and
hearing, without an opportunity to defend, without any of the civilized forms and safeguards of the
judicial process as we know it (People v. Ferrer, 48 SCRA 382 [1972]; Cummings and Missouri, 4
Wall. 277, 18 L. Ed. 356 [1867]; U.S. v. Lovett, 328, U.S. 303, 90 L.Ed. 1252 [1945]; U.S. v. Brown,
381 U.S. 437, 14 L.Ed. 2d. 484 [1965]. Such is the archetypal bill of attainder wielded as a means of
legislative oppression. x x x47

R.A. No. 9335 does not possess the elements of a bill of attainder. It does not seek to inflict
punishment without a judicial trial. R.A. No. 9335 merely lays down the grounds for the termination of
a BIR or BOC official or employee and provides for the consequences thereof. The democratic
processes are still followed and the constitutional rights of the concerned employee are amply
protected.

A final note.

We find that BOCEA’s petition is replete with allegations of defects and anomalies in allocation,
distribution and receipt of rewards. While BOCEA intimates that it intends to curb graft and
corruption in the BOC in particular and in the government in general which is nothing but noble,
these intentions do not actually pertain to the constitutionality of R.A. No. 9335 and its IRR, but
rather in the faithful implementation thereof. R.A. No. 9335 itself does not tolerate these pernicious
acts of graft and corruption.48 As the Court is not a trier of facts, the investigation on the veracity of,
and the proper action on these anomalies are in the hands of the Executive branch. Correlatively,
the wisdom for the enactment of this law remains within the domain of the Legislative branch. We
merely interpret the law as it is. The Court has no discretion to give statutes a meaning detached
from the manifest intendment and language thereof. 49 Just like any other law, R.A. No. 9335 has in
its favor the presumption of constitutionality, and to justify its nullification, there must be a clear and
unequivocal breach of the Constitution and not one that is doubtful, speculative, or
argumentative.50 We have so declared in Abakada, and we now reiterate that R.A. No. 9335 and its
IRR are constitutional.

WHEREFORE, the present petition for certiorari and prohibition with prayer for injunctive relief/s is
DISMISSED.
No costs.

SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice

(On official leave)

ANTONIO T. CARPIO
PRESBITERO J. VELASCO, JR.*
Associate Justice
Associate Justice

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION

Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO ROBERTO A. ABAD

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice

MARIA LOURDES P. A. SERENO BIENVENIDO L. REYES

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the 1987 Constitution, I certify that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court.

RENATO C. CORONA
Chief Justice