EN BANC
7653 shows that the
G.R. No. 148208 December 15, 2004
CENTRAL BANK (now Bangko Sentral ng Pilipinas) EMPLOYEES
ASSOCIATION, INC., petitioner,
vs.
BANGKO SENTRAL NG PILIPINAS and the EXECUTIVE
SECRETARY, respondents.
DECISION
PUNO, J.:
Can a provision of law, initially valid,
become subsequently unconstitutional, on the ground that
its continuedoperation would violate the equal protection of the law? We
hold that with the passage of the subsequent laws amending the charter of
seven (7) other governmental financial institutions (GFIs), the continued
operation of the last proviso of Section 15(c), Article II of Republic Act
(R.A.) No. 7653, constitutes invidious discrimination on the 2,994 rank-
and-file employees of the Bangko Sentral ng Pilipinas (BSP).
I.
The Case
First the facts.
On July 3, 1993, R.A. No. 7653 (the New Central Bank Act) took effect. It
abolished the old Central Bank of the Philippines, and created a new BSP.
On June 8, 2001, almost eight years after the effectivity of R.A. No. 7653,
petitioner Central Bank (now BSP) Employees Association, Inc., filed a
petition for prohibition against BSP and the Executive Secretary of the
Office of the President, to restrain respondents from further implementing
the last proviso in Section 15(c), Article II of R.A. No. 7653, on the ground
that it is unconstitutional.
Article II, Section 15(c) of R.A. No. 7653 provides:
Section 15. Exercise of Authority - In the exercise of its authority, the
Monetary Board shall:
xxx xxx xxx
(c) establish a human resource management system which shall
govern the selection, hiring, appointment, transfer, promotion, or
dismissal of all personnel. Such system shall aim to establish
professionalism and excellence at all levels of the Bangko
Sentral in accordance with sound principles of management.
A compensation structure, based on job evaluation studies and
wage surveys and subject to the Board's approval, shall be
instituted as an integral component of the Bangko
Sentral's human resource development program: Provided, That
the Monetary Board shall make its own system conform as
closely as possible with the principles provided for under
Republic Act No. 6758 [Salary Standardization Act]. Provided,
however, That compensation and wage structure of employees
whose positions fall under salary grade 19 and below shall be
in accordance with the rates prescribed under Republic Act
No. 6758. [emphasis supplied]
The thrust of petitioner's challenge is that the above proviso makes
an unconstitutional cut between two classes of employees in the BSP, viz:
(1) the BSP officers or those exempted from the coverage of the Salary
Standardization Law (SSL) (exempt class); and (2) the rank-and-
file (Salary Grade [SG] 19 and below), or those not exempted from the
coverage of the SSL (non-exempt class). It is contended that this
classification is "a classic case of class legislation," allegedly not based on
substantial distinctions which make real differences, but solely on the SG of
the BSP personnel's position. Petitioner also claims that it is not germane to
the purposes of Section 15(c), Article II of R.A. No. 7653, the most
important of which is to establish professionalism and excellence at all
levels in the BSP.1 Petitioner offers the following sub-set of arguments:
Page 1 of 60 CONSTI2 EQUAL PROTECTION
a. the legislative history of R.A. No.
questioned proviso does not appear in the original and amended
versions of House Bill No. 7037, nor in the original version of
Senate Bill No. 1235; 2
b. subjecting the compensation of the BSP rank-and-file
employees to the rate prescribed by the SSL actually defeats the
purpose of the law3 of establishing professionalism and
excellence at all levels in the BSP; 4(emphasis supplied)
c. the assailed proviso was the product of amendments introduced
during the deliberation of Senate Bill No. 1235, without showing
its relevance to the objectives of the law, and even admitted by
one senator as discriminatory against low-salaried employees of
the BSP;5
d. GSIS, LBP, DBP and SSS personnel are all exempted from the
coverage of the SSL; thus within the class of rank-and-file
personnel of government financial institutions (GFIs), the BSP
rank-and-file are also discriminated upon;6 and
e. the assailed proviso has caused the demoralization among the
BSP rank-and-file and resulted in the gross disparity between
their compensation and that of the BSP officers'.7
In sum, petitioner posits that the classification is not reasonable but
arbitrary and capricious, and violates the equal protection clause of the
Constitution.8 Petitioner also stresses: (a) that R.A. No. 7653 has a
separability clause, which will allow the declaration of the
unconstitutionality of the proviso in question without affecting the other
provisions; and (b) the urgency and propriety of the petition, as some 2,994
BSP rank-and-file employees have been prejudiced since 1994 when
the proviso was implemented. Petitioner concludes that: (1) since the
inequitable proviso has no force and effect of law, respondents'
implementation of such amounts to lack of jurisdiction; and (2) it has no
appeal nor any other plain, speedy and adequate remedy in the ordinary
course except through this petition for prohibition, which this Court should
take cognizance of, considering the transcendental importance of the legal
issue involved.9
Respondent BSP, in its comment,10 contends that the provision does not
violate the equal protection clause and can stand the constitutional test,
provided it is construed in harmony with other provisions of the same law,
such as "fiscal and administrative autonomy of BSP," and the mandate of
the Monetary Board to "establish professionalism and excellence at all
levels in accordance with sound principles of management."
The Solicitor General, on behalf of respondent Executive Secretary, also
defends the validity of the provision. Quite simplistically, he argues that the
classification is based on actual and real differentiation, even as it adheres to
the enunciated policy of R.A. No. 7653 to establish professionalism and
excellence within the BSP subject to prevailing laws and policies of the
national government.11
II.
Issue
Thus, the sole - albeit significant - issue to be resolved in this case is
whether the last paragraph of Section 15(c), Article II of R.A. No. 7653,
runs afoul of the constitutional mandate that "No person shall be. . . denied
the equal protection of the laws."12
III.
Ruling
A. UNDER THE PRESENT STANDARDS OF EQUAL
PROTECTION,
SECTION 15(c), ARTICLE II OF R.A. NO. 7653 IS VALID.
Jurisprudential standards for equal protection challenges indubitably show
that the classification created by the questioned proviso, on its face and in
its operation, bears no constitutional infirmities.
It is settled in constitutional law that the "equal protection" clause does not
prevent the Legislature from establishing classes of individuals or objects
upon which different rules shall operate - so long as the classification is not
unreasonable. As held in Victoriano v. Elizalde Rope Workers'
Union,13 and reiterated in a long line of cases:14
 The guaranty of equal protection of the laws is not a guaranty of
equality in the application of the laws upon all citizens of the
state. It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man,
woman and child should be affected alike by a statute. Equality of
operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not
identity of rights. The Constitution does not require that things
which are different in fact be treated in law as though they were
the same. The equal protection clause does not forbid
discrimination as to things that are different. It does not prohibit
legislation which is limited either in the object to which it is
directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain
particulars. A law is not invalid because of simple inequality. The
very idea of classification is that of inequality, so that it goes
without saying that the mere fact of inequality in no manner
determines the matter of constitutionality. All that is required of a
valid classification is that it be reasonable, which means that the
classification should be based on substantial distinctions which
make for real differences, that it must be germane to the purpose
of the law; that it must not be limited to existing conditions only;
and that it must apply equally to each member of the class. This
Court has held that the standard is satisfied if the classification or
distinction is based on a reasonable foundation or rational basis
and is not palpably arbitrary.
In the exercise of its power to make classifications for the
purpose of enacting laws over matters within its jurisdiction, the
state is recognized as enjoying a wide range of discretion. It is not
necessary that the classification be based on scientific or marked
differences of things or in their relation. Neither is it necessary
that the classification be made with mathematical nicety. Hence,
legislative classification may in many cases properly rest on
narrow distinctions, for the equal protection guaranty does not
preclude the legislature from recognizing degrees of evil or harm,
and legislation is addressed to evils as they may appear. (citations
omitted)
Congress is allowed a wide leeway in providing for a valid
classification.15 The equal protection clause is not infringed by legislation
which applies only to those persons falling within a specified class. 16 If the
groupings are characterized by substantial distinctions that make real
differences, one class may be treated and regulated differently from
another.17 The classification must also be germane to the purpose of the law
and must apply to all those belonging to the same class. 18
In the case at bar, it is clear in the legislative deliberations that the
exemption of officers (SG 20 and above) from the SSL was intended to
address the BSP's lack of competitiveness in terms of attracting competent
officers and executives. It was not intended to discriminate against the rank-
and-file. If the end-result did in fact lead to a disparity of treatment between
the officers and the rank-and-file in terms of salaries and benefits, the
discrimination or distinction has a rational basis and is not palpably, purely,
and entirely arbitrary in the legislative sense. 19
That the provision was a product of amendments introduced during the
deliberation of the Senate Bill does not detract from its validity. As early as
1947 and reiterated in subsequent cases,20 this Court has subscribed to the
conclusiveness of an enrolled bill to refuse invalidating a provision of law,
on the ground that the bill from which it originated contained no such
provision and was merely inserted by the bicameral conference committee
of both Houses.
Moreover, it is a fundamental and familiar teaching that all reasonable
doubts should be resolved in favor of the constitutionality of a statute.21 An
act of the legislature, approved by the executive, is presumed to be within
constitutional limitations.22 To justify the nullification of a law, there must
be a clear and unequivocal breach of the Constitution, not a doubtful and
equivocal breach.23
B. THE ENACTMENT, HOWEVER, OF SUBSEQUENT LAWS -
EXEMPTING ALL OTHER RANK-AND-FILE EMPLOYEES
OF GFIs FROM THE SSL - RENDERS THE CONTINUED
APPLICATION OF THE CHALLENGED PROVISION
A VIOLATION OF THE EQUAL PROTECTION CLAUSE.
While R.A. No. 7653 started as a valid measure well within the legislature's
power, we hold that the enactment of subsequent laws exempting all
Page 2 of 60 CONSTI2 EQUAL PROTECTION
rank-and-file employees of other GFIs leeched all validity out of the
challenged proviso.
1. The concept of relative constitutionality.
The constitutionality of a statute cannot, in every instance, be determined by
a mere comparison of its provisions with applicable provisions of the
Constitution, since the statute may be constitutionally valid as applied to
one set of facts and invalid in its application to another. 24
A statute valid at one time may become void at another time because
of altered circumstances.25 Thus, if a statute in its practical operation
becomes arbitrary or confiscatory, its validity, even though affirmed by a
former adjudication, is open to inquiry and investigation in the light
of changed conditions.26
Demonstrative of this doctrine is Vernon Park Realty v. City of Mount
Vernon,27 where the Court of Appeals of New York declared as
unreasonable and arbitrary a zoning ordinance which placed the plaintiff's
property in a residential district, although it was located in the center of a
business area. Later amendments to the ordinance then prohibited the use of
the property except for parking and storage of automobiles, and service
station within a parking area. The Court found the ordinance to constitute an
invasion of property rights which was contrary to constitutional due process.
It ruled:
While the common council has the unquestioned right to enact
zoning laws respecting the use of property in accordance with a
well-considered and comprehensive plan designed to promote
public health, safety and general welfare, such power is subject to
the constitutional limitation that it may not be exerted arbitrarily
or unreasonably and this is so whenever the zoning ordinance
precludes the use of the property for any purpose for which it is
reasonably adapted. By the same token, an ordinance valid
when adopted will nevertheless be stricken down as invalid
when, at a later time, its operation under changed conditions
proves confiscatory such, for instance, as when the greater part
of its value is destroyed, for which the courts will afford relief in
an appropriate case.28 (citations omitted, emphasis supplied)
In the Philippine setting, this Court declared the continued enforcement of
a valid law as unconstitutional as a consequence of significant changes in
circumstances. Rutter v. Esteban29 upheld the constitutionality of the
moratorium law - its enactment and operation being a valid exercise by the
State of its police power30 - but also ruled that the continued enforcement
of the otherwise valid law would be unreasonable and oppressive. It
noted the subsequent changes in the country's business, industry and
agriculture. Thus, the law was set aside because its continued operation
would be grossly discriminatory and lead to the oppression of the creditors.
The landmark ruling states:31
The question now to be determined is, is the period of eight (8)
years which Republic Act No. 342 grants to debtors of a
monetary obligation contracted before the last global war and
who is a war sufferer with a claim duly approved by the
Philippine War Damage Commission reasonable under the
present circumstances?
It should be noted that Republic Act No. 342 only extends relief
to debtors of prewar obligations who suffered from the ravages of
the last war and who filed a claim for their losses with the
Philippine War Damage Commission. It is therein provided that
said obligation shall not be due and demandable for a period of
eight (8) years from and after settlement of the claim filed by the
debtor with said Commission. The purpose of the law is to afford
to prewar debtors an opportunity to rehabilitate themselves by
giving them a reasonable time within which to pay their prewar
debts so as to prevent them from being victimized by their
creditors. While it is admitted in said law that since liberation
conditions have gradually returned to normal, this is not so with
regard to those who have suffered the ravages of war and so it
was therein declared as a policy that as to them the debt
moratorium should be continued in force (Section 1).
But we should not lose sight of the fact that these obligations had
been pending since 1945 as a result of the issuance of Executive
Orders Nos. 25 and 32 and at present their enforcement is still
inhibited because of the enactment of Republic Act No. 342 and
would continue to be unenforceable during the eight-year period
granted to prewar debtors to afford them an opportunity to
rehabilitate themselves, which in plain language means that the
creditors would have to observe a vigil of at least twelve (12)
years before they could effect a liquidation of their investment
dating as far back as 1941. his period seems to us unreasonable, if
not oppressive. While the purpose of Congress is plausible, and
 should be commended, the relief accorded works injustice to
creditors who are practically left at the mercy of the debtors.
Their hope to effect collection becomes extremely remote, more
so if the credits are unsecured. And the injustice is more patent
when, under the law, the debtor is not even required to pay
interest during the operation of the relief, unlike similar statutes
in the United States.
xxx xxx xxx
In the face of the foregoing observations, and consistent with
what we believe to be as the only course dictated by justice,
fairness and righteousness, we feel that the only way open to us
under the present circumstances is to declare that the
continued operation and enforcement of Republic Act No. 342
at the present time is unreasonable and oppressive, and
should not be prolonged a minute longer, and, therefore, the
same should be declared null and void and without
effect. (emphasis supplied, citations omitted)
2. Applicability of the equal protection clause.
In the realm of equal protection, the U.S. case of Atlantic Coast Line R.
Co. v. Ivey32 is illuminating. The Supreme Court of Florida ruled against the
continued application of statutes authorizing the recovery of double
damages plus attorney's fees against railroad companies, for animals killed
on unfenced railroad right of way without proof of negligence. Competitive
motor carriers, though creating greater hazards, were not subjected to
similar liability because they were not yet in existence when the statutes
were enacted. The Court ruled that the statutes became invalid as denying
"equal protection of the law," in view of changed conditions since their
enactment.
In another U.S. case, Louisville & N.R. Co. v. Faulkner,33 the Court of
Appeals of Kentucky declared unconstitutional a provision of a statute
which imposed a duty upon a railroad company of proving that it was free
from negligence in the killing or injury of cattle by its engine or cars. This,
notwithstanding that the constitutionality of the statute, enacted in
1893, had been previously sustained. Ruled the Court:
The constitutionality of such legislation was sustained because it
applied to all similar corporations and had for its object the safety
of persons on a train and the protection of property…. Of course,
there were no automobiles in those days.
The subsequent inauguration and development of transportation
by motor vehicles on the public highways by common carriers of
freight and passengers created even greater risks to the safety of
occupants of the vehicles and of danger of injury and death of
domestic animals. Yet, under the law the operators of that mode
of competitive transportation are not subject to the same
extraordinary legal responsibility for killing such animals on the
public roads as are railroad companies for killing them on their
private rights of way.
The Supreme Court, speaking through Justice Brandeis in
Nashville, C. & St. L. Ry. Co. v. Walters, 294 U.S. 405, 55 S.Ct.
486, 488, 79 L.Ed. 949, stated, "A statute valid when enacted
may become invalid by change in the conditions to which it is
applied. The police power is subject to the constitutional
limitation that it may not be exerted arbitrarily or unreasonably."
A number of prior opinions of that court are cited in support of
the statement. The State of Florida for many years had a statute,
F.S.A. § 356.01 et seq. imposing extraordinary and special duties
upon railroad companies, among which was that a railroad
company was liable for double damages and an attorney's fee for
killing livestock by a train without the owner having to prove any
act of negligence on the part of the carrier in the operation of its
train. In Atlantic Coast Line Railroad Co. v. Ivey, it was held that
the changed conditions brought about by motor vehicle
transportation rendered the statute unconstitutional since if a
common carrier by motor vehicle had killed the same animal, the
owner would have been required to prove negligence in the
operation of its equipment. Said the court, "This certainly is not
equal protection of the law."34 (emphasis supplied)
Echoes of these rulings resonate in our case law, viz:
[C]ourts are not confined to the language of the statute under
challenge in determining whether that statute has any
discriminatory effect. A statute nondiscriminatory on its face
may be grossly discriminatory in its operation. Though the law
itself be fair on its face and impartial in appearance, yet, if it is
applied and administered by public authority with an evil eye and
unequal hand, so as practically to make unjust and illegal
discriminations between persons in similar circumstances,
Page 3 of 60 CONSTI2 EQUAL PROTECTION
material to their rights, the denial of equal justice is still within
the prohibition of the Constitution.35 (emphasis supplied, citations
omitted)
[W]e see no difference between a law which denies equal
protection and 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 prohibition….. In other words, statutes may be
adjudged unconstitutional because of their effect in operation….
If a law has the effect of denying the equal protection of the law it
is unconstitutional. ….36 (emphasis supplied, citations omitted
3. Enactment of R.A. Nos. 7907 + 8282 + 8289 + 8291 + 8523 + 8763
+ 9302 = consequential unconstitutionality of challenged proviso.
According to petitioner, the last proviso of Section 15(c), Article II of R.A.
No. 7653 is also violative of the equal protection clause because after it was
enacted, the charters of the GSIS, LBP, DBP and SSS were also amended,
but the personnel of the latter GFIs were all exempted from the coverage of
the SSL.37 Thus, within the class of rank-and-file personnel of GFIs, the
BSP rank-and-file are also discriminated upon.
Indeed, we take judicial notice that after the new BSP charter was enacted in
1993, Congress also undertook the amendment of the charters of the GSIS,
LBP, DBP and SSS, and three other GFIs, from 1995 to 2004, viz:
1. R.A. No. 7907 (1995) for Land Bank of the Philippines (LBP);
2. R.A. No. 8282 (1997) for Social Security System (SSS);
3. R.A. No. 8289 (1997) for Small Business Guarantee and
Finance Corporation, (SBGFC);
4. R.A. No. 8291 (1997) for Government Service Insurance
System (GSIS);
5. R.A. No. 8523 (1998) for Development Bank of the
Philippines (DBP);
6. R.A. No. 8763 (2000) for Home Guaranty Corporation
(HGC);38 and
7. R.A. No. 9302 (2004) for Philippine Deposit Insurance
Corporation (PDIC).
It is noteworthy, as petitioner points out, that the subsequent charters of
the seven other GFIs share this common proviso: a blanket exemption
of all their employees from the coverage of the SSL, expressly or
impliedly, as illustrated below:
1. LBP (R.A. No. 7907)
Section 10. Section 90 of [R.A. No. 3844] is hereby amended to
read as follows:
Section 90. Personnel. -
xxx xxx xxx
All positions in the Bank shall be governed by a compensation,
position classification system and qualification standards
approved by the Bank's Board of Directors based on a
comprehensive job analysis and audit of actual duties and
responsibilities. The compensation plan shall be comparable with
the prevailing compensation plans in the private sector and shall
be subject to periodic review by the Board no more than once
every two (2) years without prejudice to yearly merit reviews or
increases based on productivity and profitability. The Bank shall
therefore be exempt from existing laws, rules and regulations
on compensation, position classification and qualification
standards. It shall however endeavor to make its system conform
as closely as possible with the principles under Republic Act No.
6758. (emphasis supplied)
xxx xxx xxx
2. SSS (R.A. No. 8282)
Section 1. [Amending R.A. No. 1161, Section 3(c)]:
 xxx xxx xxx
(c)The Commission, upon the recommendation of the SSS
President, shall appoint an actuary and such other personnel as
may [be] deemed necessary; fix their reasonable compensation,
allowances and other benefits; prescribe their duties and establish
such methods and procedures as may be necessary to insure the
efficient, honest and economical administration of the provisions
and purposes of this Act: Provided, however, That the personnel
of the SSS below the rank of Vice President shall be appointed by
the SSS President: Provided, further, That the personnel
appointed by the SSS President, except those below the rank of
assistant manager, shall be subject to the confirmation by the
Commission; Provided further, That the personnel of the SSS
shall be selected only from civil service eligibles and be subject
to civil service rules and regulations: Provided, finally, That the
SSS shall be exempt from the provisions of Republic Act No.
6758 and Republic Act No. 7430. (emphasis supplied)
3. SBGFC (R.A. No. 8289)
Section 8. [Amending R.A. No. 6977, Section 11]:
xxx xxx xxx
The Small Business Guarantee and Finance Corporation shall:
xxx xxx xxx
(e) notwithstanding the provisions of Republic Act No. 6758,
and Compensation Circular No. 10, series of 1989 issued by
the Department of Budget and Management, the Board of
Directors of SBGFC shall have the authority to extend to the
employees and personnel thereof the allowance and fringe
benefits similar to those extended to and currently enjoyed by
the employees and personnel of other government financial
institutions. (emphases supplied)
4. GSIS (R.A. No. 8291)
Section 1. [Amending Section 43(d)].
xxx xxx xxx
Sec. 43. Powers and Functions of the Board of Trustees. - The
Board of Trustees shall have the following powers and functions:
xxx xxx xxx
(d) upon the recommendation of the President and General
Manager, to approve the GSIS' organizational and administrative
structures and staffing pattern, and to establish, fix, review, revise
and adjust the appropriate compensation package for the officers
and employees of the GSIS with reasonable allowances,
incentives, bonuses, privileges and other benefits as may be
necessary or proper for the effective management, operation and
administration of the GSIS, which shall be exempt from
Republic Act No. 6758, otherwise known as the Salary
Standardization Law and Republic Act No. 7430, otherwise
known as the Attrition Law. (emphasis supplied)
xxx xxx xxx
5. DBP (R.A. No. 8523)
Section 6. [Amending E.O. No. 81, Section 13]:
Section 13. Other Officers and Employees. - The Board of
Directors shall provide for an organization and staff of officers
and employees of the Bank and upon recommendation of the
President of the Bank, fix their remunerations and other
emoluments. All positions in the Bank shall be governed by the
compensation, position classification system and qualification
standards approved by the Board of Directors based on a
comprehensive job analysis of actual duties and responsibilities.
The compensation plan shall be comparable with the prevailing
compensation plans in the private sector and shall be subject to
periodic review by the Board of Directors once every two (2)
years, without prejudice to yearly merit or increases based on the
Bank's productivity and profitability. The Bank shall, therefore,
be exempt from existing laws, rules, and regulations on
compensation, position classification and qualification
Page 4 of 60 CONSTI2 EQUAL PROTECTION
standards. The Bank shall however, endeavor to make its
system conform as closely as possible with the principles
under Compensation and Position Classification Act of 1989
(Republic Act No. 6758, as amended). (emphasis supplied)
6. HGC (R.A. No. 8763)
Section 9. Powers, Functions and Duties of the Board of Directors. - The
Board shall have the following powers, functions and duties:
xxx xxx xxx
(e) To create offices or positions necessary for the efficient
management, operation and administration of the
Corporation: Provided, That all positions in the Home Guaranty
Corporation (HGC) shall be governed by a compensation and
position classification system and qualifications standards
approved by the Corporation's Board of Directors based on a
comprehensive job analysis and audit of actual duties and
responsibilities: Provided, further, That the compensation plan
shall be comparable with the prevailing compensation plans
in the private sector and which shall be exempt from
Republic Act No. 6758, otherwise known as the Salary
Standardization Law, and from other laws, rules and
regulations on salaries and compensations; and to establish a
Provident Fund and determine the Corporation's and the
employee's contributions to the Fund; (emphasis supplied)
xxx xxx xxx
7. PDIC (R.A. No. 9302)
Section 2. Section 2 of [Republic Act No. 3591, as amended] is hereby
further amended to read:
xxx xxx xxx
3.
xxx xxx xxx
A compensation structure, based on job evaluation studies and
wage surveys and subject to the Board's approval, shall be
instituted as an integral component of the Corporation's human
resource development program: Provided, That all positions in
the Corporation shall be governed by a compensation, position
classification system and qualification standards approved by the
Board based on a comprehensive job analysis and audit of actual
duties and responsibilities. The compensation plan shall be
comparable with the prevailing compensation plans of other
government financial institutions and shall be subject to review
by the Board no more than once every two (2) years without
prejudice to yearly merit reviews or increases based on
productivity and profitability. The Corporation shall therefore
be exempt from existing laws, rules and regulations on
compensation, position classification and qualification
standards. It shall however endeavor to make its system conform
as closely as possible with the principles under Republic Act No.
6758, as amended. (emphases supplied)
Thus, eleven years after the amendment of the BSP charter, the rank-
and-file of seven other GFIs were granted the exemption that was
specifically denied to the rank-and-file of the BSP. And as if to add insult
to petitioner's injury, even the Securities and Exchange Commission (SEC)
was granted the same blanket exemption from the SSL in 2000! 39
The prior view on the constitutionality of R.A. No. 7653 was confined to
an evaluation of its classification between the rank-and-file and the
officers of the BSP, found reasonable because there were substantial
distinctions that made real differences between the two classes.
The above-mentioned subsequent enactments, however, constitute
significant changes in circumstancethat considerably alter the
reasonability of the continued operation of the last proviso of Section
15(c), Article II of Republic Act No. 7653, thereby exposing
the proviso to more serious scrutiny. This time, the scrutiny relates to the
constitutionality of the classification - albeit made indirectly as a
consequence of the passage of eight other laws - between the rank-and-file
of the BSP and the seven other GFIs. The classification must not only be
reasonable, but must also apply equally to all members of the
class. The proviso may be fair on its face and impartial in appearance but it
cannot be grossly discriminatory in its operation, so as practically to
make unjust distinctions between persons who are without differences.40
Stated differently, the second level of inquiry deals with the following
questions: Given that Congress chose to exempt other GFIs (aside the BSP)
from the coverage of the SSL, can the exclusion of the rank-and-file
employees of the BSP stand constitutional scrutiny in the light of the fact
that Congress did not exclude the rank-and-file employees of the other
GFIs? Is Congress' power to classify so unbridled as to sanction unequal and
discriminatory treatment, simply because the inequity manifested itself, not
instantly through a single overt act, but gradually and progressively, through
seven separate acts of Congress? Is the right to equal protection of the law
bounded in time and space that: (a) the right can only be invoked against a
classification made directly and deliberately, as opposed to a discrimination
that arises indirectly, or as a consequence of several other acts; and (b) is the
legal analysis confined to determining the validity within the parameters of
the statute or ordinance (where the inclusion or exclusion is articulated),
thereby proscribing any evaluation vis-à-vis the grouping, or the lack
thereof, among several similar enactments made over a period of time?
In this second level of scrutiny, the inequality of treatment cannot be
justified on the mere assertion that each exemption (granted to the seven
other GFIs) rests "on a policy determination by the legislature." All
legislative enactments necessarily rest on a policy determination - even
those that have been declared to contravene the Constitution. Verily, if this
could serve as a magic wand to sustain the validity of a statute, then no due
process and equal protection challenges would ever prosper. There is
nothing inherently sacrosanct in a policy determination made by Congress
or by the Executive; it cannot run riot and overrun the ramparts of protection
of the Constitution.
In fine, the "policy determination" argument may support the inequality of
treatment between the rank-and-file and the officers of the BSP, but it
cannot justify the inequality of treatment between BSP rank-and-file and
other GFIs' who are similarly situated. It fails to appreciate that what is at
issue in the second level of scrutiny is not the declared policy of each
law per se, but the oppressive results of Congress' inconsistent and
unequal policytowards the BSP rank-and-file and those of the seven other
GFIs. At bottom, the second challenge to the constitutionality of Section
15(c), Article II of Republic Act No. 7653 is premised precisely on the
irrational discriminatory policy adopted by Congress in its treatment of
persons similarly situated. In the field of equal protection, the guarantee
that "no person shall be … denied the equal protection of the laws" includes
the prohibition against enacting laws that allow invidious
discrimination, directly or indirectly. If a law has the effect of denying the
equal protection of the law, or permits such denial, it is unconstitutional. 41
It is against this standard that the disparate treatment of the BSP rank-and-
file from the other GFIs cannot stand judicial scrutiny. For as regards the
exemption from the coverage of the SSL, there exist no substantial
distinctions so as to differentiate, the BSP rank-and-file from the other rank-
and-file of the seven GFIs. On the contrary, our legal history shows that
GFIs have long been recognized as comprising one distinct class,
separate from other governmental entities.
Before the SSL, Presidential Decree (P.D.) No. 985 (1976) declared it as a
State policy (1) to provide equal pay for substantially equal work, and (2) to
base differences in pay upon substantive differences in duties and
responsibilities, and qualification requirements of the positions. P.D. No.
985 was passed to address disparities in pay among similar or comparable
positions which had given rise to dissension among government
employees. But even then, GFIs and government-owned and/or
controlled corporations (GOCCs) were already identified as a distinct
class among government employees. Thus, Section 2 also provided, "[t]hat
notwithstanding a standardized salary system established for all employees,
additional financial incentives may be established by government
corporation and financial institutions for their employees to be supported
fully from their corporate funds and for such technical positions as may be
approved by the President in critical government agencies."42
The same favored treatment is made for the GFIs and the GOCCs under the
SSL. Section 3(b) provides that one of the principles governing the
Compensation and Position Classification System of the Government is that:
"[b]asic compensation for all personnel in the government and government-
owned or controlled corporations and financial institutions shall generally
be comparable with those in the private sector doing comparable work, and
must be in accordance with prevailing laws on minimum wages."
Thus, the BSP and all other GFIs and GOCCs were under the unified
Compensation and Position Classification System of the SSL, 43 but rates of
pay under the SSL were determined on the basis of, among others,
prevailing rates in the private sector for comparable work. Notably, the
Compensation and Position Classification System was to be governed by the
following principles: (a) just and equitable wages, with the ratio of
compensation between pay distinctions maintained at equitable levels; 44 and
(b) basic compensation generally comparable with the private sector, in
accordance with prevailing laws on minimum wages.45 Also, the Department
of Budget and Management was directed to use, as guide for preparing the
Page 5 of 60 CONSTI2 EQUAL PROTECTION
Index of Occupational Services, the Benchmark Position Schedule, and the
following factors:46
(1) the education and experience required to perform the duties
and responsibilities of the positions;
(2) the nature and complexity of the work to be performed;
(3) the kind of supervision received;
(4) mental and/or physical strain required in the completion of the
work;
(5) nature and extent of internal and external relationships;
(6) kind of supervision exercised;
(7) decision-making responsibility;
(8) responsibility for accuracy of records and reports;
(9) accountability for funds, properties and equipment; and
(10) hardship, hazard and personal risk involved in the job.
The Benchmark Position Schedule enumerates the position titles that fall
within Salary Grades 1 to 20.
Clearly, under R.A. No. 6758, the rank-and-file of all GFIs were similarly
situated in all aspects pertaining to compensation and position classification,
in consonance with Section 5, Article IX-B of the 1997 Constitution.47
Then came the enactment of the amended charter of the BSP, implicitly
exempting the Monetary Board from the SSL by giving it express authority
to determine and institute its own compensation and wage structure.
However, employees whose positions fall under SG 19 and below were
specifically limited to the rates prescribed under the SSL.
Subsequent amendments to the charters of other GFIs
followed. Significantly, each government financial institution (GFI) was not
only expressly authorized to determine and institute its own compensation
and wage structure, but also explicitly exempted - without distinction as
to salary grade or position - all employees of the GFI from the SSL.
It has been proffered that legislative deliberations justify the grant or
withdrawal of exemption from the SSL, based on the perceived need "to
fulfill the mandate of the institution concerned considering, among others,
that: (1) the GOCC or GFI is essentially proprietary in character; (2) the
GOCC or GFI is in direct competition with their [sic] counterparts in the
private sector, not only in terms of the provisions of goods or services, but
also in terms of hiring and retaining competent personnel; and (3) the
GOCC or GFI are or were [sic] experiencing difficulties filling up plantilla
positions with competent personnel and/or retaining these personnel. The
need for the scope of exemption necessarily varies with the particular
circumstances of each institution, and the corresponding variance in the
benefits received by the employees is merely incidental."
The fragility of this argument is manifest. First, the BSP is the central
monetary authority,48 and the banker of the government and all its
political subdivisions.49 It has the sole power and authority to issue
currency;50 provide policy directions in the areas of money, banking, and
credit; and supervise banks and regulate finance companies and non-bank
financial institutions performing quasi-banking functions, including
the exempted GFIs.51 Hence, the argument that the rank-and-file employees
of the seven GFIs were exempted because of the importance of their
institution's mandate cannot stand any more than an empty sack can stand.
Second, it is certainly misleading to say that "the need for the scope of
exemption necessarily varies with the particular circumstances of each
institution." Nowhere in the deliberations is there a cogent basis for the
exclusion of the BSP rank-and-file from the exemption which was granted
to the rank-and-file of the other GFIs and the SEC. As point in fact, the BSP
and the seven GFIs are similarly situated in so far as Congress deemed it
necessary for these institutions to be exempted from the SSL. True, the
SSL-exemption of the BSP and the seven GFIs was granted in the amended
charters of each GFI, enacted separately and over a period of time. But it
bears emphasis that, while each GFI has a mandate different and distinct
from that of another, the deliberations show that the raison d'être of the
SSL-exemption was inextricably linked to and for the most part based on
factors common to the eight GFIs, i.e., (1) the pivotal role they play in the
economy; (2) the necessity of hiring and retaining qualified and effective
personnel to carry out the GFI's mandate; and (3) the recognition that the
compensation package of these GFIs is not competitive, and fall
substantially below industry standards. Considering further that (a) the BSP
was the first GFI granted SSL exemption; and (b) the subsequent
exemptions of other GFIs did not distinguish between the officers and the
rank-and-file; it is patent that the classification made between the BSP
rank-and-file and those of the other seven GFIs was inadvertent, and
NOT intended, i.e., it was not based on any substantial distinction vis-à-vis
the particular circumstances of each GFI. Moreover, the exemption granted
to two GFIs makes express reference to allowance and fringe benefits
similar to those extended to and currently enjoyed by the employees and
personnel of other GFIs,52 underscoring that GFIs are a particular class
within the realm of government entities.
It is precisely this unpremeditated discrepancy in treatment of the rank-and-
file of the BSP - made manifest and glaring with each and every
consequential grant of blanket exemption from the SSL to the other GFIs -
that cannot be rationalized or justified. Even more so, when the SEC - which
is not a GFI - was given leave to have a compensation plan that "shall be
comparable with the prevailing compensation plan in the [BSP] and other
[GFIs],"53then granted a blanket exemption from the SSL, and its rank-and-
file endowed a more preferred treatment than the rank-and-file of the BSP.
The violation to the equal protection clause becomes even more pronounced
when we are faced with this undeniable truth: that if Congress had enacted a
law for the sole purpose of exempting the eight GFIs from the coverage of
the SSL, the exclusion of the BSP rank-and-file employees would have been
devoid of any substantial or material basis. It bears no moment, therefore,
that the unlawful discrimination was not a direct result arising from one law.
"Nemo potest facere per alium quod non potest facere per directum." No
one is allowed to do indirectly what he is prohibited to do directly.
It has also been proffered that "similarities alone are not sufficient to
support the conclusion that rank-and-file employees of the BSP may be
lumped together with similar employees of the other GOCCs for purposes of
compensation, position classification and qualification standards. The fact
that certain persons have some attributes in common does not automatically
make them members of the same class with respect to a legislative
classification." Cited is the ruling in Johnson v. Robinson:54 "this finding of
similarity ignores that a common characteristic shared by beneficiaries and
nonbeneficiaries alike, is not sufficient to invalidate a statute when other
characteristics peculiar to only one group rationally explain the statute's
different treatment of the two groups."
The reference to Johnson is inapropos. In Johnson, the US Court sustained
the validity of the classification as there were quantitative and qualitative
distinctions, expressly recognized by Congress, which formed a rational
basis for the classification limiting educational benefits to military service
veterans as a means of helping them readjust to civilian life. The Court
listed the peculiar characteristics as follows:
First, the disruption caused by military service is quantitatively
greater than that caused by alternative civilian service. A
conscientious objector performing alternative service is obligated
to work for two years. Service in the Armed Forces, on the other
hand, involves a six-year commitment…
xxx xxx xxx
Second, the disruptions suffered by military veterans and
alternative service performers are qualitatively different. Military
veterans suffer a far greater loss of personal freedom during their
service careers. Uprooted from civilian life, the military veteran
becomes part of the military establishment, subject to its
discipline and potentially hazardous duty. Congress was acutely
aware of the peculiar disabilities caused by military service, in
consequence of which military servicemen have a special need
for readjustment benefits…55 (citations omitted)
In the case at bar, it is precisely the fact that as regards the exemption
from the SSL, there are no characteristics peculiar only to the seven
GFIs or their rank-and-file so as to justify the exemption which BSP
rank-and-file employees were denied (not to mention the anomaly of the
SEC getting one). The distinction made by the law is not only
superficial,56 but also arbitrary. It is not based on substantial distinctions that
make real differences between the BSP rank-and-file and the seven other
GFIs.
Moreover, the issue in this case is not - as the dissenting opinion of Mme.
Justice Carpio-Morales would put it - whether "being an employee of a
GOCC or GFI is reasonable and sufficient basis for exemption" from R.A.
No. 6758. It is Congress itself that distinguished the GFIs from other
government agencies, not once but eight times, through the enactment of
R.A. Nos. 7653, 7907, 8282, 8289, 8291, 8523, 8763, and 9302. These laws
may have created a "preferred sub-class within government employees," but
the present challenge is not directed at the wisdom of these laws. Rather, it
Page 6 of 60 CONSTI2 EQUAL PROTECTION
is a legal conundrum involving the exercise of legislative power, the validity
of which must be measured not only by looking at the specific exercise in
and by itself (R.A. No. 7653), but also as to the legal effects brought about
by seven separate exercises - albeit indirectly and without intent.
Thus, even if petitioner had not alleged "a comparable change in the factual
milieu as regards the compensation, position classification and qualification
standards of the employees of the BSP (whether of the executive level or of
the rank-and-file) since the enactment of the new Central Bank Act" is of no
moment. In GSIS v. Montesclaros,57 this Court resolved the issue of
constitutionality notwithstanding that claimant had manifested that she was
no longer interested in pursuing the case, and even when the
constitutionality of the said provision was not squarely raised as an issue,
because the issue involved not only the claimant but also others similarly
situated and whose claims GSIS would also deny based on the
challenged proviso. The Court held that social justice and public interest
demanded the resolution of the constitutionality of the proviso. And so it is
with the challenged proviso in the case at bar.
It bears stressing that the exemption from the SSL is a "privilege" fully
within the legislative prerogative to give or deny. However, its subsequent
grant to the rank-and-file of the seven other GFIs and continued denial to
the BSP rank-and-file employees breached the latter's right to equal
protection. In other words, while the granting of a privilege per se is a
matter of policy exclusively within the domain and prerogative of
Congress, the validity or legality of the exercise of this prerogative is subject
to judicial review.58 So when the distinction made is superficial, and not
based on substantial distinctions that make real differences between those
included and excluded, it becomes a matter of arbitrariness that this Court
has the duty and the power to correct.59 As held in the United Kingdom case
of Hooper v. Secretary of State for Work and Pensions,60 once the State
has chosen to confer benefits, "discrimination" contrary to law may occur
where favorable treatment already afforded to one group is refused to
another, even though the State is under no obligation to provide that
favorable treatment. 61
The disparity of treatment between BSP rank-and-file and the rank-and-file
of the other seven GFIs definitely bears the unmistakable badge of invidious
discrimination - no one can, with candor and fairness, deny the
discriminatory character of the subsequent blanket and total exemption of
the seven other GFIs from the SSL when such was withheld from the
BSP. Alikes are being treated as unalikes without any rational basis.
Again, it must be emphasized that the equal protection clause does not
demand absolute equality but it requires that all persons shall be treated
alike, under like circumstances and conditions both as to privileges
conferred and liabilities enforced. Favoritism and undue preference
cannot be allowed. For the principle is that equal protection and security
shall be given to every person under circumstances which, if not identical,
are analogous. If law be looked upon in terms of burden or charges, those
that fall within a class should be treated in the same fashion; whatever
restrictions cast on some in the group is equally binding on the rest.62
In light of the lack of real and substantial distinctions that would justify the
unequal treatment between the rank-and-file of BSP from the seven other
GFIs, it is clear that the enactment of the seven subsequent charters has
rendered the continued application of the challenged proviso anathema to
the equal protection of the law, and the same should be declared as an
outlaw.
IV.
Equal Protection Under International Lens
In our jurisdiction, the standard and analysis of equal protection challenges
in the main have followed the "rational basis" test, coupled with a
deferential attitude to legislative classifications63 and a reluctance to
invalidate a law unless there is a showing of a clear and unequivocal breach
of the Constitution. 64
A. Equal Protection in the United States
In contrast, jurisprudence in the U.S. has gone beyond the static
"rational basis" test. Professor Gunther highlights the development in
equal protection jurisprudential analysis, to wit: 65
Traditionally, equal protection supported only minimal judicial
intervention in most contexts. Ordinarily, the command of equal
protection was only that government must not impose differences
in treatment "except upon some reasonable differentiation fairly
related to the object of regulation." The old variety of equal
protection scrutiny focused solely on the means used by the
legislature: it insisted merely that the classification in the
statute reasonably relates to the legislative purpose. Unlike
 substantive due process, equal protection scrutiny was not
typically concerned with identifying "fundamental values" and
restraining legislative ends. And usually the rational
classification requirement was readily satisfied: the courts did
not demand a tight fit between classification and purpose; perfect
congruence between means and ends was not required.
xxx xxx xxx
[From marginal intervention to major cutting edge: The
Warren Court's "new equal protection" and the two-tier
approach.]
From its traditional modest role, equal protection burgeoned
into a major intervention tool during the Warren
era, especially in the 1960s. The Warren Court did not abandon
the deferential ingredients of the old equal protection: in most
areas of economic and social legislation, the demands imposed by
equal protection remained as minimal as ever…But the Court
launched an equal protection revolution by finding large new
areas for strict rather than deferential scrutiny. A sharply
differentiated two-tier approach evolved by the late 1960s: in
addition to the deferential "old" equal protection, a "new" equal
protection, connoting strict scrutiny, arose…. The intensive
review associated with the new equal protection imposed two
demands - a demand not only as to means but also one as to
ends. Legislation qualifying for strict scrutiny required a far
closer fit between classification and statutory purpose than the
rough and ready flexibility traditionally tolerated by the old equal
protection: means had to be shown "necessary" to achieve
statutory ends, not merely "reasonably related"
ones. Moreover, equal protection became a source of ends
scrutiny as well: legislation in the areas of the new equal
protection had to be justified by "compelling" state interests, not
merely the wide spectrum of "legitimate" state ends.
The Warren Court identified the areas appropriate for strict
scrutiny by searching for two characteristics: the presence of a
"suspect" classification; or an impact on "fundamental" rights or
interests. In the category of "suspect classifications," the Warren
Court's major contribution was to intensify the strict scrutiny in
the traditionally interventionist area of racial classifications. But
other cases also suggested that there might be more other suspect
categories as well: illegitimacy and wealth for example. But it
was the 'fundamental interests" ingredient of the new equal
protection that proved particularly dynamic, open-ended, and
amorphous….. [Other fundamental interests included voting,
criminal appeals, and the right of interstate travel ….]
xxx xxx xxx
The Burger Court and Equal Protection.
The Burger Court was reluctant to expand the scope of the new
equal protection, although its best established ingredient
retains vitality. There was also mounting discontent with the
rigid two-tier formulations of the Warren Court's equal protection
doctrine. It was prepared to use the clause as an interventionist
tool without resorting to the strict language of the new equal
protection…. [Among the fundamental interests identified during
this time were voting and access to the ballot, while "suspect"
classifications included sex, alienage and illegitimacy.]
xxx xxx xxx
Even while the two-tier scheme has often been adhered to in
form, there has also been an increasingly noticeable resistance to
the sharp difference between deferential "old" and interventionist
"new" equal protection. A number of justices sought formulations
that would blur the sharp distinctions of the two-tiered approach
or that would narrow the gap between strict scrutiny and
deferential review. The most elaborate attack came from Justice
Marshall, whose frequently stated position was developed most
elaborately in his dissent in the Rodriguez case: 66
The Court apparently seeks to establish [that] equal protection
cases fall into one of two neat categories which dictate the
appropriate standard of review - strict scrutiny or mere
rationality. But this (sic) Court's [decisions] defy such easy
categorization. A principled reading of what this Court has done
reveals that it has applied a spectrum of standards in reviewing
discrimination allegedly violative of the equal protection clause.
This spectrum clearly comprehends variations in the degree of
care with which Court will scrutinize particular classification,
depending, I believe, on the constitutional and societal
Page 7 of 60 CONSTI2 EQUAL PROTECTION
importance of the interests adversely affected and the recognized
invidiousness of the basis upon which the particular classification
is drawn.
Justice Marshall's "sliding scale" approach describes many of
the modern decisions, although it is a formulation that the
majority refused to embrace. But the Burger Court's results
indicate at least two significant changes in equal protection
law: First, invocation of the "old" equal protection formula no
longer signals, as it did with the Warren Court, an extreme
deference to legislative classifications and a virtually automatic
validation of challenged statutes. Instead, several cases, even
while voicing the minimal "rationality" "hands-off" standards of
the old equal protection, proceed to find the statute
unconstitutional. Second, in some areas the modern Court has
put forth standards for equal protection review that, while clearly
more intensive than the deference of the "old" equal protection,
are less demanding than the strictness of the "new" equal
protection. Sex discrimination is the best established example of
an "intermediate" level of review. Thus, in one case, the Court
said that "classifications by gender must
serve important governmental objectives and must
be substantially related to achievement of those objectives." That
standard is "intermediate" with respect to both ends and means:
where ends must be "compelling" to survive strict scrutiny and
merely "legitimate" under the "old" mode, "important" objectives
are required here; and where means must be "necessary" under
the "new" equal protection, and merely "rationally related" under
the "old" equal protection, they must be "substantially related" to
survive the "intermediate" level of review. (emphasis supplied,
citations omitted)
B. Equal Protection in Europe
The United Kingdom and other members of the European
Community have also gone forward in discriminatory legislation and
jurisprudence. Within the United Kingdom domestic law, the most extensive
list of protected grounds can be found in Article 14 of the European
Convention on Human Rights (ECHR). It prohibits discrimination on
grounds such as "sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national minority,
property, birth or other status." This list is illustrative and not
exhaustive. Discrimination on the basis of race, sex and religion is
regarded as grounds that require strict scrutiny. A further indication that
certain forms of discrimination are regarded as particularly suspect under
the Covenant can be gleaned from Article 4, which, while allowing states to
derogate from certain Covenant articles in times of national emergency,
prohibits derogation by measures that discriminate solely on the grounds of
"race, colour, language, religion or social origin."67
Moreover, the European Court of Human Rights has developed a test of
justification which varies with the ground of discrimination. In the Belgian
Linguistics case68 the European Court set the standard of justification at a
low level: discrimination would contravene the Convention only if it had no
legitimate aim, or there was no reasonable relationship of proportionality
between the means employed and the aim sought to be realised. 69 But over
the years, the European Court has developed a hierarchy of grounds
covered by Article 14 of the ECHR, a much higher level of justification
being required in respect of those regarded as "suspect" (sex, race,
nationality, illegitimacy, or sexual orientation) than of others. Thus,
in Abdulaziz, 70 the European Court declared that:
. . . [t]he advancement of the equality of the sexes is today a
major goal in the member States of the Council of Europe. This
means that very weighty reasons would have to be advanced
before a difference of treatment on the ground of sex could be
regarded as compatible with the Convention.
And in Gaygusuz v. Austria,71 the European Court held that "very
weighty reasons would have to be put forward before the Court could
regard a difference of treatment based exclusively on the ground of
nationality as compatible with the Convention."72 The European Court will
then permit States a very much narrower margin of appreciation in
relation to discrimination on grounds of sex, race, etc., in the application of
the Convention rights than it will in relation to distinctions drawn by states
between, for example, large and small land-owners. 73
C. Equality under International Law
The principle of equality has long been recognized under international
law. Article 1 of the Universal Declaration of Human Rights proclaims
that all human beings are born free and equal in dignity and
rights. Non-discrimination, together with equality before the law and equal
protection of the law without any discrimination, constitutes basic principles
in the protection of human rights. 74
Most, if not all, international human rights instruments include some
prohibition on discrimination and/or provisions about equality. 75 The general
international provisions pertinent to discrimination and/or equality are the
International Covenant on Civil and Political Rights (ICCPR);76 the
International Covenant on Economic, Social and Cultural Rights (ICESCR);
the International Convention on the Elimination of all Forms of Racial
Discrimination (CERD);77 the Convention on the Elimination of all Forms
of Discrimination against Women (CEDAW); and the Convention on the
Rights of the Child (CRC).
In the broader international context, equality is also enshrined in regional
instruments such as the American Convention on Human Rights;78 the
African Charter on Human and People's Rights;79 the European Convention
on Human Rights;80 the European Social Charter of 1961 and revised Social
Charter of 1996; and the European Union Charter of Rights (of particular
importance to European states). Even the Council of the League of Arab
States has adopted the Arab Charter on Human Rights in 1994, although it
has yet to be ratified by the Member States of the League.81
The equality provisions in these instruments do not merely function as
traditional "first generation" rights, commonly viewed as concerned
only with constraining rather than requiring State action. Article 26 of
the ICCPR requires "guarantee[s]" of "equal and effective protection against
discrimination" while Articles 1 and 14 of the American and European
Conventions oblige States Parties "to ensure ... the full and free exercise of
[the rights guaranteed] ... without any discrimination" and to "secure
without discrimination" the enjoyment of the rights guaranteed. 82 These
provisions impose a measure of positive obligation on States Parties to take
steps to eradicate discrimination.
In the employment field, basic detailed minimum standards ensuring
equality and prevention of discrimination, are laid down in the
ICESCR83 and in a very large number of Conventions administered by the
International Labour Organisation, a United Nations body. 84 Additionally,
many of the other international and regional human rights instruments have
specific provisions relating to employment.85
The United Nations Human Rights Committee has also gone beyond the
earlier tendency to view the prohibition against discrimination (Article 26)
as confined to the ICCPR rights.86 In Broeks87 and Zwaan-de Vries,88the
issue before the Committee was whether discriminatory provisions in the
Dutch Unemployment Benefits Act (WWV) fell within the scope of Article
26. The Dutch government submitted that discrimination in social security
benefit provision was not within the scope of Article 26, as the right was
contained in the ICESCR and not the ICCPR. They accepted that Article 26
could go beyond the rights contained in the Covenant to other civil and
political rights, such as discrimination in the field of taxation, but contended
that Article 26 did not extend to the social, economic, and cultural rights
contained in ICESCR. The Committee rejected this argument. In its view,
Article 26 applied to rights beyond the Covenant including the rights in
other international treaties such as the right to social security found in
ICESCR:
Although Article 26 requires that legislation should prohibit
discrimination, it does not of itself contain any obligation with
respect to the matters that may be provided for by legislation.
Thus it does not, for example, require any state to enact
legislation to provide for social security. However, when such
legislation is adopted in the exercise of a State's sovereign power,
then such legislation must comply with Article 26 of the
Covenant.89
Breaches of the right to equal protection occur directly or indirectly. A
classification may be struck down if it has the purpose or effect of violating
the right to equal protection. International law recognizes
that discrimination may occur indirectly, as the Human Rights
Committee90 took into account the definitions of discrimination adopted by
CERD and CEDAW in declaring that:
. . . "discrimination" as used in the [ICCPR] should be understood
to imply any distinction, exclusion, restriction or preference
which is based on any ground such as race, colour, sex,
language, religion, political or other opinion, national or social
origin, property, birth or other status, and which has the purpose
or effect of nullifying or impairing the recognition, enjoyment
or exercise by all persons, on an equal footing, of all rights and
freedoms. 91 (emphasis supplied)
Thus, the two-tier analysis made in the case at bar of the challenged
provision, and its conclusion of unconstitutionality by subsequent
operation, are in cadence and in consonance with the progressive trend
of other jurisdictions and in international law. There should be no
hesitation in using the equal protection clause as a major cutting edge to
eliminate every conceivable irrational discrimination in our society. Indeed,
Page 8 of 60 CONSTI2 EQUAL PROTECTION
the social justice imperatives in the Constitution, coupled with the special
status and protection afforded to labor, compel this approach.92
Apropos the special protection afforded to labor under our Constitution and
international law, we held in International School Alliance of Educators
v. Quisumbing: 93
That public policy abhors inequality and discrimination is beyond
contention. Our Constitution and laws reflect the policy against
these evils. The Constitution in the Article on Social Justice and
Human Rights exhorts Congress to "give highest priority to the
enactment of measures that protect and enhance the right of all
people to human dignity, reduce social, economic, and political
inequalities." The very broad Article 19 of the Civil Code
requires every person, "in the exercise of his rights and in the
performance of his duties, [to] act with justice, give everyone his
due, and observe honesty and good faith."
International law, which springs from general principles of law,
likewise proscribes discrimination. General principles of law
include principles of equity, i.e., the general principles of fairness
and justice, based on the test of what is reasonable. The Universal
Declaration of Human Rights, the International Covenant on
Economic, Social, and Cultural Rights, the International
Convention on the Elimination of All Forms of Racial
Discrimination, the Convention against Discrimination in
Education, the Convention (No. 111) Concerning Discrimination
in Respect of Employment and Occupation - all embody the
general principle against discrimination, the very antithesis of
fairness and justice. The Philippines, through its Constitution, has
incorporated this principle as part of its national laws.
In the workplace, where the relations between capital and labor
are often skewed in favor of capital, inequality and discrimination
by the employer are all the more reprehensible.
The Constitution specifically provides that labor is entitled to
"humane conditions of work." These conditions are not restricted
to the physical workplace - the factory, the office or the field - but
include as well the manner by which employers treat their
employees.
The Constitution also directs the State to promote "equality of
employment opportunities for all." Similarly, the Labor Code
provides that the State shall "ensure equal work opportunities
regardless of sex, race or creed." It would be an affront to both
the spirit and letter of these provisions if the State, in spite of its
primordial obligation to promote and ensure equal employment
opportunities, closes its eyes to unequal and discriminatory terms
and conditions of employment.
xxx xxx xxx
Notably, the International Covenant on Economic, Social, and
Cultural Rights, in Article 7 thereof, provides:
The States Parties to the present Covenant recognize the right of
everyone to the enjoyment of just and [favorable] conditions of
work, which ensure, in particular:
a. Remuneration which provides all workers, as a
minimum, with:
i. Fair wages and equal remuneration for
work of equal value without distinction of
any kind, in particular women being
guaranteed conditions of work not inferior to
those enjoyed by men, with equal pay for
equal work;
xxx xxx xxx
The foregoing provisions impregnably institutionalize in this
jurisdiction the long honored legal truism of "equal pay for equal
work." Persons who work with substantially equal qualifications,
skill, effort and responsibility, under similar conditions, should be
paid similar salaries. (citations omitted)
Congress retains its wide discretion in providing for a valid classification,
and its policies should be accorded recognition and respect by the courts of
justice except when they run afoul of the Constitution.94 The deference
stops where the classification violates a fundamental right, or
prejudices persons accorded special protection by the
Constitution. When these violations arise, this Court must discharge its
primary role as the vanguard of constitutional guaranties, and require a
stricter and more exacting adherence to constitutional
limitations. Rational basis should not suffice.
Admittedly, the view that prejudice to persons accorded special protection
by the Constitution requires a stricter judicial scrutiny finds no support in
American or English jurisprudence. Nevertheless, these foreign decisions
and authorities are not per se controlling in this jurisdiction. At best, they
are persuasive and have been used to support many of our decisions. 95 We
should not place undue and fawning reliance upon them and regard them as
indispensable mental crutches without which we cannot come to our own
decisions through the employment of our own endowments. We live in a
different ambience and must decide our own problems in the light of our
own interests and needs, and of our qualities and even idiosyncrasies as a
people, and always with our own concept of law and justice.96 Our laws
must be construed in accordance with the intention of our own lawmakers
and such intent may be deduced from the language of each law and the
context of other local legislation related thereto. More importantly, they
must be construed to serve our own public interest which is the be-all and
the end-all of all our laws. And it need not be stressed that our public
interest is distinct and different from others.97
In the 2003 case of Francisco v. House of Representatives, this Court has
stated that: "[A]merican jurisprudence and authorities, much less the
American Constitution, are of dubious application for these are no longer
controlling within our jurisdiction and have only limited persuasive merit
insofar as Philippine constitutional law is concerned....[I]n resolving
constitutional disputes, [this Court] should not be beguiled by foreign
jurisprudence some of which are hardly applicable because they have been
dictated by different constitutional settings and needs."98 Indeed, although
the Philippine Constitution can trace its origins to that of the United States,
their paths of development have long since diverged. 99
Further, the quest for a better and more "equal" world calls for the use of
equal protection as a tool of effective judicial intervention.
Equality is one ideal which cries out for bold attention and action
in the Constitution. The Preamble proclaims "equality" as an
ideal precisely in protest against crushing inequities in Philippine
society. The command to promote social justice in Article II,
Section 10, in "all phases of national development," further
explicitated in Article XIII, are clear commands to the State to
take affirmative action in the direction of greater equality.…
[T]here is thus in the Philippine Constitution no lack of doctrinal
support for a more vigorous state effort towards achieving a
reasonable measure of equality.100
Our present Constitution has gone further in guaranteeing vital social and
economic rights to marginalized groups of society, including labor. 101 Under
the policy of social justice, the law bends over backward to accommodate
the interests of the working class on the humane justification that those with
less privilege in life should have more in law.102 And the obligation to afford
protection to labor is incumbent not only on the legislative and executive
branches but also on the judiciary to translate this pledge into a living
reality.103 Social justice calls for the humanization of laws and the
equalization of social and economic forces by the State so that justice in its
rational and objectively secular conception may at least be approximated. 104
V.
A Final Word
Finally, concerns have been raised as to the propriety of a ruling voiding the
challenged provision. It has been proffered that the remedy of petitioner is
not with this Court, but with Congress, which alone has the power to erase
any inequity perpetrated by R.A. No. 7653. Indeed, a bill proposing the
exemption of the BSP rank-and-file from the SSL has supposedly been
filed.
Under most circumstances, the Court will exercise judicial restraint in
deciding questions of constitutionality, recognizing the broad discretion
given to Congress in exercising its legislative power. Judicial scrutiny
would be based on the "rational basis" test, and the legislative discretion
would be given deferential treatment. 105
But if the challenge to the statute is premised on the denial of a
fundamental right, or the perpetuation of prejudice against persons
favored by the Constitution with special protection, judicial scrutiny
ought to be more strict. A weak and watered down view would call for the
abdication of this Court's solemn duty to strike down any law repugnant to
the Constitution and the rights it enshrines. This is true whether the actor
committing the unconstitutional act is a private person or the government
itself or one of its instrumentalities. Oppressive acts will be struck down
regardless of the character or nature of the actor. 106
Page 9 of 60 CONSTI2 EQUAL PROTECTION
Accordingly, when the grant of power is qualified, conditional or
subject to limitations, the issue on whether or not the prescribed
qualifications or conditions have been met, or the limitations
respected, is justiciable or non-political, the crux of the problem
being one of legality or validity of the contested act, not its
wisdom. Otherwise, said qualifications, conditions or limitations -
particularly those prescribed or imposed by the Constitution -
would be set at naught. What is more, the judicial inquiry into
such issue and the settlement thereof are the main functions of
courts of justice under the Presidential form of government
adopted in our 1935 Constitution, and the system of checks and
balances, one of its basic predicates. As a consequence, We have
neither the authority nor the discretion to decline passing
upon said issue, but are under the ineluctable obligation -
made particularly more exacting and peremptory by our
oath, as members of the highest Court of the land, to support
and defend the Constitution - to settle it. This explains why, in
Miller v. Johnson, it was held that courts have a "duty, rather than
a power", to determine whether another branch of the government
has "kept within constitutional limits." Not satisfied with this
postulate, the court went farther and stressed that, if the
Constitution provides how it may be amended - as it is in our
1935 Constitution - "then, unless the manner is followed, the
judiciary as the interpreter of that constitution, will declare the
amendment invalid." In fact, this very Court - speaking through
Justice Laurel, an outstanding authority on Philippine
Constitutional Law, as well as one of the highly respected and
foremost leaders of the Convention that drafted the 1935
Constitution - declared, as early as July 15, 1936, that "(i)n times
of social disquietude or political excitement, the great landmarks
of the Constitution are apt to be forgotten or marred, if not
entirely obliterated. In cases of conflict, the judicial department is
the only constitutional organ which can be called upon to
determine the proper allocation of powers between the several
departments" of the government.107 (citations omitted; emphasis
supplied)
In the case at bar, the challenged proviso operates on the basis of the salary
grade or officer-employee status. It is akin to a distinction based on
economic class and status, with the higher grades as recipients of a benefit
specifically withheld from the lower grades. Officers of the BSP now
receive higher compensation packages that are competitive with the
industry, while the poorer, low-salaried employees are limited to the rates
prescribed by the SSL. The implications are quite disturbing: BSP rank-and-
file employees are paid the strictly regimented rates of the SSL while
employees higher in rank - possessing higher and better education and
opportunities for career advancement - are given higher compensation
packages to entice them to stay. Considering that majority, if not all, the
rank-and-file employees consist of people whose status and rank in life
are less and limited, especially in terms of job marketability, it is they -
and not the officers - who have the real economic and financial need for
the adjustment This is in accord with the policy of the Constitution "to free
the people from poverty, provide adequate social services, extend to them a
decent standard of living, and improve the quality of life for all." 108 Any act
of Congress that runs counter to this
constitutional desideratum deserves strict scrutiny by this Court before
it can pass muster.
To be sure, the BSP rank-and-file employees merit greater concern from
this Court. They represent the more impotent rank-and-file government
employees who, unlike employees in the private sector, have no specific
right to organize as a collective bargaining unit and negotiate for better
terms and conditions of employment, nor the power to hold a strike to
protest unfair labor practices. Not only are they impotent as a labor unit, but
their efficacy to lobby in Congress is almost nil as R.A. No. 7653
effectively isolated them from the other GFI rank-and-file in
compensation. These BSP rank-and-file employees represent the
politically powerless and they should not be compelled to seek a
political solution to their unequal and iniquitous treatment. Indeed, they
have waited for many years for the legislature to act. They cannot be asked
to wait some more for discrimination cannot be given any waiting time.
Unless the equal protection clause of the Constitution is a mere platitude, it
is the Court's duty to save them from reasonless discrimination.
IN VIEW WHEREOF, we hold that the continued operation and
implementation of the last proviso of Section 15(c), Article II of Republic
Act No. 7653 is unconstitutional.
Davide, Jr., C.J., Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Austria-Martinez, Azcuna, Tinga, and Chico-Nazario, JJ., concur.
Panganiban, Carpio, Carpio-Morales, and Garcia, JJ., see dissenting.
Corona, and Callejo, Sr., JJ., on leave.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 105371 November 11, 1993
THE PHILIPPINE JUDGES ASSOCIATION, duly rep. by its
President, BERNARDO P. ABESAMIS, Vice-President for Legal
Affairs, MARIANO M. UMALI, Director for Pasig, Makati, and Pasay,
Metro Manila, ALFREDO C. FLORES, and Chairman of the
Committee on Legal Aid, JESUS G. BERSAMIRA, Presiding Judges of
the Regional Trial Court, Branch 85, Quezon City and Branches 160,
167 and 166, Pasig, Metro Manila, respectively: the NATIONAL
CONFEDERATION OF THE JUDGES ASSOCIATION OF THE
PHILIPPINES, composed of the METROPOLITAN TRIAL COURT
JUDGES ASSOCIATION rep. by its President. REINATO QUILALA
of the MUNICIPAL TRIAL CIRCUIT COURT, Manila; THE
MUNICIPAL JUDGES LEAGUE OF THE PHILIPPINES rep. by its
President, TOMAS G. TALAVERA; by themselves and in behalf of all
the Judges of the Regional Trial and Shari'a Courts, Metropolitan Trial
Courts and Municipal Courts throughout the Country, petitioners,
vs.
HON. PETE PRADO, in his capacity as Secretary of the Department of
Transportation and Communications, JORGE V. SARMIENTO, in his
capacity as Postmaster General, and the PHILIPPINE POSTAL
CORP., respondents.
CRUZ, J.:
The basic issue raised in this petition is the independence of the Judiciary. It
is asserted by the petitioners that this hallmark of republicanism is impaired
by the statute and circular they are here challenging. The Supreme Court is
itself affected by these measures and is thus an interested party that should
ordinarily not also be a judge at the same time. Under our system of
government, however, it cannot inhibit itself and must rule upon the
challenge, because no other office has the authority to do so. We shall
therefore act upon this matter not with officiousness but in the discharge of
an unavoidable duty and, as always, with detachment and fairness.
The main target of this petition is Section 35 of R.A. No. 7354 as
implemented by the Philippine Postal Corporation through its Circular No.
92-28. These measures withdraw the franking privilege from the Supreme
Court, the Court of Appeals, the Regional Trial Courts, the Metropolitan
Trial Courts, the Municipal Trial Courts, and the Land Registration
Commission and its Registers of Deeds, along with certain other
government offices.
The petitioners are members of the lower courts who feel that their official
functions as judges will be prejudiced by the above-named measures. The
National Land Registration Authority has taken common cause with them
insofar as its own activities, such as sending of requisite notices in
registration cases, affect judicial proceedings. On its motion, it has been
allowed to intervene.
The petition assails the constitutionality of R.A. No. 7354 on the grounds
that: (1) its title embraces more than one subject and does not express its
purposes; (2) it did not pass the required readings in both Houses of
Congress and printed copies of the bill in its final form were not distributed
among the members before its passage; and (3) it is discriminatory and
encroaches on the independence of the Judiciary.
We approach these issues with one important principle in mind, to wit, the
presumption of the constitutionality of statutes. The theory is that as the
joint act of the Legislature and the Executive, every statute is supposed to
have first been carefully studied and determined to be constitutional before
it was finally enacted. Hence, unless it is clearly shown that it is
constitutionally flawed, the attack against its validity must be rejected and
the law itself upheld. To doubt is to sustain.
I expressed in the title, and adopted to the
We consider first the objection based on Article VI, Sec. 26(l), of the
Constitution providing that "Every bill passed by the Congress shall
embrace only one subject which shall be expressed in the title thereof."
The purposes of this rule are: (1) to prevent hodge-podge or "log-rolling"
legislation; (2) to prevent surprise or fraud upon the legislature by means of
Page 10 of 60 CONSTI2 EQUAL PROTECTION
provisions in bills of which the title gives no intimation, and which might
therefore be overlooked and carelessly and unintentionally adopted; and (3)
to fairly apprise the people, through such publication of legislative
proceedings as is usually made, of the subject of legislation that is being
considered, in order that they may have opportunity of being heard thereon,
by petition or otherwise, if they shall so desire.1
It is the submission of the petitioners that Section 35 of R.A. No. 7354
which withdrew the franking privilege from the Judiciary is not expressed in
the title of the law, nor does it reflect its purposes.
R.A. No. 7354 is entitled "An Act Creating the Philippine Postal
Corporation, Defining its Powers, Functions and Responsibilities, Providing
for Regulation of the Industry and for Other Purposes Connected
Therewith."
The objectives of the law are enumerated in Section 3, which provides:
The State shall pursue the following objectives of a
nationwide postal system:
a) to enable the economical and speedy transfer of mail
and other postal matters, from sender to addressee,
with full recognition of their privacy or confidentiality;
b) to promote international interchange, cooperation
and understanding through the unhampered flow or
exchange of postal matters between nations;
c) to cause or effect a wide range of postal services to
cater to different users and changing needs, including
but not limited to, philately, transfer of monies and
valuables, and the like;
d) to ensure that sufficient revenues are generated by
and within the industry to finance the overall cost of
providing the varied range of postal delivery and
messengerial services as well as the expansion and
continuous upgrading of service standards by the same.
Sec. 35 of R.A. No. 7354, which is the principal target of the petition, reads
as follows:
Sec. 35. Repealing Clause. — All acts, decrees, orders,
executive orders, instructions, rules and regulations or
parts thereof inconsistent with the provisions of this
Act are repealed or modified accordingly.
All franking privileges authorized by law are hereby
repealed, except those provided for under
Commonwealth Act No. 265, Republic Acts Numbered
69, 180, 1414, 2087 and 5059. The Corporation may
continue the franking privilege under Circular No. 35
dated October 24, 1977 and that of the Vice President,
under such arrangements and conditions as may
obviate abuse or unauthorized use thereof.
The petitioners' contention is untenable. We do not agree that the title of the
challenged act violates the Constitution.
The title of the bill is not required to be an index to the body of the act, or to
be as comprehensive as to cover every single detail of the measure. It has
been held that if the title fairly indicates the general subject, and reasonably
covers all the provisions of the act, and is not calculated to mislead the
legislature or the people, there is sufficient compliance with the
constitutional requirement. 2
To require every end and means necessary for the accomplishment of the
general objectives of the statute to be expressed in its title would not only be
unreasonable but would actually render legislation impossible. 3 As has been
correctly explained:
The details of a legislative act need not be specifically
stated in its title, but matter germane to the subject as
accomplishment of the object in view, may properly be
included in the act. Thus, it is proper to create in the
same act the machinery by which the act is to be
enforced, to prescribe the penalties for its infraction,
and to remove obstacles in the way of its execution. If
such matters are properly connected with the subject as
expressed in the title, it is unnecessary that they should
 also have special mention in the title (Southern Pac.
Co. v. Bartine, 170 Fed. 725).
This is particularly true of the repealing clause, on which Cooley writes:
"The repeal of a statute on a given subject is properly connected with the
subject matter of a new statute on the same subject; and therefore a
repealing section in the new statute is valid, notwithstanding that the title is
silent on the subject. It would be difficult to conceive of a matter more
germane to an act and to the object to be accomplished thereby than the
repeal of previous legislations connected therewith."4
The reason is that where a statute repeals a former law, such repeal is the
effect and not the subject of the statute; and it is the subject, not the effect of
a law, which is required to be briefly expressed in its title. 5 As observed in
one case,6 if the title of an act embraces only one subject, we apprehend it
was never claimed that every other act which repeals it or alters by
implication must be mentioned in the title of the new act. Any such rule
would be neither within the reason of the Constitution, nor practicable.
We are convinced that the withdrawal of the franking privilege from some
agencies is germane to the accomplishment of the principal objective of
R.A. No. 7354, which is the creation of a more efficient and effective postal
service system. Our ruling is that, by virtue of its nature as a repealing
clause, Section 35 did not have to be expressly included in the title of the
said law.
II
The petitioners maintain that the second paragraph of Sec. 35 covering the
repeal of the franking privilege from the petitioners and this Court under
E.O. 207, PD 1882 and PD 26 was not included in the original version of
Senate Bill No. 720 or House Bill No. 4200. As this paragraph appeared
only in the Conference Committee Report, its addition, violates Article VI,
Sec. 26(2) of the Constitution, reading as follows:
(2) No bill passed by either House shall become a law
unless it has passed three readings on separate days,
and printed copies thereof in its final form have been
distributed to its Members three days before its
passage, except when the President certifies to the
necessity of its immediate enactment to meet a public
calamity or emergency. Upon the last reading of a bill,
no amendment thereto shall be allowed, and the vote
thereon shall be taken immediately thereafter, and
the yeas and nays entered in the Journal.
The petitioners also invoke Sec. 74 of the Rules of the House of
Representatives, requiring that amendment to any bill when the House and
the Senate shall have differences thereon may be settled by a conference
committee of both chambers. They stress that Sec. 35 was never a subject of
any disagreement between both Houses and so the second paragraph could
not have been validly added as an amendment.
These argument are unacceptable.
While it is true that a conference committee is the mechanism for
compromising differences between the Senate and the House, it is not
limited in its jurisdiction to this question. Its broader function is described
thus:
A conference committee may, deal generally with the
subject matter or it may be limited to resolving the
precise differences between the two houses. Even
where the conference committee is not by rule limited
in its jurisdiction, legislative custom severely limits the
freedom with which new subject matter can be inserted
into the conference bill. But occasionally a conference
committee produces unexpected results, results beyond
its mandate, These excursions occur even where the
rules impose strict limitations on conference committee
jurisdiction. This is symptomatic of the authoritarian
power of conference committee (Davies, Legislative
Law and Process: In a Nutshell, 1986 Ed., p.81).
It is a matter of record that the conference Committee Report on the bill in
question was returned to and duly approved by both the Senate and the
House of Representatives. Thereafter, the bill was enrolled with its
certification by Senate President Neptali A. Gonzales and Speaker Ramon
V. Mitra of the House of Representatives as having been duly passed by
both Houses of Congress. It was then presented to and approved by
President Corazon C. Aquino on April 3, 1992.
Under the doctrine of separation powers, the Court may not inquire beyond
the certification of the approval of a bill from the presiding officers of
Page 11 of 60 CONSTI2 EQUAL PROTECTION
Congress. Casco Philippine Chemical Co. v. Gimenez7 laid down the rule
that the enrolled bill, is conclusive upon the Judiciary (except in matters that
have to be entered in the journals like the yeas and nays on the final reading
of the
bill).8 The journals are themselves also binding on the Supreme Court, as we
held in the old (but still valid) case of U.S. vs. Pons,9 where we explained
the reason thus:
To inquire into the veracity of the journals of the
Philippine legislature when they are, as we have said,
clear and explicit, would be to violate both the, letter
and spirit of the organic laws by which the Philippine
Government was brought into existence, to invade a
coordinate and independent department of the
Government, and to interfere with the legitimate
powers and functions, of the Legislature.
Applying these principles, we shall decline to look into the petitioners'
charges that an amendment was made upon the last reading of the bill that
eventually became R.A. No. 7354 and that copies thereof in its final form
were not distributed among the members of each House. Both the enrolled
bill and the legislative journals certify that the measure was duly
enacted i.e., in accordance with Article VI, Sec. 26(2) of the Constitution.
We are bound by such official assurances from a coordinate department of
the government, to which we owe, at the very least, a becoming courtesy.
III
The third and most serious challenge of the petitioners is based on the equal
protection clause.
It is alleged that R.A. No. 7354 is discriminatory because while
withdrawing the franking privilege from the Judiciary, it retains the same
for the President of the Philippines, the Vice President of the Philippines;
Senators and Members of the House of Representatives, the Commission on
Elections; former Presidents of the Philippines; the National Census and
Statistics Office; and the general public in the filing of complaints against
public offices and officers.10
The respondents counter that there is no discrimination because the law is
based on a valid classification in accordance with the equal protection
clause. In fact, the franking privilege has been withdrawn not only from the
Judiciary but also the Office of Adult Education, the Institute of National
Language; the Telecommunications Office; the Philippine Deposit
Insurance Corporation; the National Historical Commission; the Armed
Forces of the Philippines; the Armed Forces of the Philippines Ladies
Steering Committee; the City and Provincial Prosecutors; the Tanodbayan
(Office of Special Prosecutor); the Kabataang Barangay; the Commission on
the Filipino Language; the Provincial and City Assessors; and the National
Council for the Welfare of Disabled Persons.11
The equal protection of the laws is embraced in the concept of due process,
as every unfair discrimination offends the requirements of justice and fair
play. It has nonetheless been embodied in a separate clause in Article III
Sec. 1., of the Constitution to provide for a more, specific guaranty against
any form of undue favoritism or hostility from the government.
Arbitrariness in general may be challenged on the basis of the due process
clause. But if the particular act assailed partakes of an unwarranted partiality
or prejudice, the sharper weapon to cut it down is the equal protection
clause.
According to a long line of decisions, equal protection simply requires that
all persons or things similarly situated should be treated alike, both as to
rights conferred and responsibilities imposed, 12 Similar subjects, in other
words, should not be treated differently, so as to give undue favor to some
and unjustly discriminate against others.
The equal protection clause does not require the universal application of the
laws on all persons or things without distinction. This might in fact
sometimes result in unequal protection, as where, for example, a law
prohibiting mature books to all persons, regardless of age, would benefit the
morals of the youth but violate the liberty of adults. What the clause
requires is equality among equals as determined according to a valid
classification. By classification is meant the grouping of persons or things
similar to each other in certain particulars and different from all others in
these same particulars. 13
What is the reason for the grant of the franking privilege in the first place?
Is the franking privilege extended to the President of the Philippines or the
Commission on Elections or to former Presidents of the Philippines purely
as a courtesy from the lawmaking body? Is it offered because of
the importance or status of the grantee or because of its need for the
privilege? Or have the grantees been chosen pell-mell, as it were, without
any basis at all for the selection?
We reject outright the last conjecture as there is no doubt that the statute as a
whole was carefully deliberated upon, by the political departments before it
was finally enacted. There is reason to suspect, however, that not enough
care or attention was given to its repealing clause, resulting in the unwitting
withdrawal of the franking privilege from the Judiciary.
We also do not believe that the basis of the classification was mere courtesy,
for it is unimaginable that the political departments would have intended
this serious slight to the Judiciary as the third of the major and equal
departments the government. The same observations are made if the
importance or status of the grantee was the criterion used for the extension
of the franking privilege, which is enjoyed by the National Census and
Statistics Office and even some private individuals but not the courts of
justice.
In our view, the only acceptable reason for the grant of the franking
privilege was the perceived need of the grantee for the accommodation,
which would justify a waiver of substantial revenue by the Corporation in
the interest of providing for a smoother flow of communication between the
government and the people.
Assuming that basis, we cannot understand why, of all the departments of
the government, it is the Judiciary, that has been denied the franking
privilege. There is no question that if there is any major branch of the
government that needs the privilege, it is the Judicial Department, as the
respondents themselves point out. Curiously, the respondents would justify
the distinction on the basis precisely of this need and, on this basis, deny the
Judiciary the franking privilege while extending it to others less deserving.
it derives substantial revenues from the sources enumerated in Section 10,
on top of the exemptions it enjoys. It is not likely that the retention of the
franking privilege of the Judiciary will cripple the Corporation.
At this time when the Judiciary is being faulted for the delay in the
administration of justice, the withdrawal from it of the franking privilege
can only further deepen this serious problem. The volume of judicial mail,
as emphasized by the respondents themselves, should stress the dependence
of the courts of justice on the postal service for communicating with lawyers
and litigants as part of the judicial process. The Judiciary has the lowest
appropriation in the national budget compared to the Legislative and
Executive Departments; of the P309 billion budgeted for 1993, only .84%,
or less than 1%, is alloted for the judiciary. It should not be hard to imagine
the increased difficulties of our courts if they have to affix a purchased
stamp to every process they send in the discharge of their judicial functions.
We are unable to agree with the respondents that Section 35 of R.A. No.
7354 represents a valid exercise of discretion by the Legislature under the
police power. On the contrary, we find its repealing clause to be a
discriminatory provision that denies the Judiciary the equal protection of the
laws guaranteed for all persons or things similarly situated. The distinction
made by the law is superficial. It is not based on substantial distinctions that
make real differences between the Judiciary and the grantees of the franking
privilege.
This is not a question of wisdom or power into which the Judiciary may not
intrude. It is a matter of arbitrariness that this Court has the duty and power
to correct.

In their Comment, the respondents point out that available data from the
Postal Service Office show that from January 1988 to June 1992, the total
volume of frank mails amounted to P90,424,175.00. Of this amount, frank
mails from the Judiciary and other agencies whose functions include the
service of judicial processes, such as the intervenor, the Department of
Justice and the Office of the Ombudsman, amounted to P86,481,759. Frank
mails coming fromthe Judiciary amounted to P73,574,864.00, and those
coming from the petitioners reached the total amount of P60,991,431.00.
The respondents' conclusion is that because of this considerable volume of
mail from the Judiciary, the franking privilege must be withdrawn from it.
The argument is self-defeating. The respondents are in effect saying that the
franking privilege should be extended only to those who do not need it very
much, if at all, (like the widows of former Presidents) but not to those who
need it badly (especially the courts of justice). It is like saying that a person
may be allowed cosmetic surgery although it is not really necessary but not
an operation that can save his life.
IV
In sum, we sustain R.A. No. 7354 against the attack that its subject is not
expressed in its title and that it was not passed in accordance with the
prescribed procedure. However, we annul Section 35 of the law as violative
of Article 3, Sec. 1, of the Constitution providing that no person shall "be
deprived of the equal protection of laws."
We arrive at these conclusions with a full awareness of the criticism it is
certain to provoke. While ruling against the discrimination in this case, we
may ourselves be accused of similar discrimination through the exercise of
our ultimate power in our own favor. This is inevitable. Criticism of judicial
conduct, however undeserved, is a fact of life in the political system that we
are prepared to accept.. As judges, we cannot debate with our detractors. We
can only decide the cases before us as law imposes on us the duty to be fair
and our own conscience gives us the light to be right.

ACCORDINGLY, the petition is partially GRANTED and Section 35 of

If the problem of the respondents is the loss of revenues from the franking
privilege, the remedy, it seems to us, is to withdraw it altogether
from all agencies of government, including those who do not need it. The
problem is not solved by retaining it for some and withdrawing it from
others, especially where there is no substantial distinction between those
favored, which may or may not need it at all, and the Judiciary, which
definitely needs it. The problem is not solved by violating the Constitution.
R.A. No. 7354 is declared UNCONSTITUTIONAL. Circular No. 92-28 is
SET ASIDE insofar as it withdraws the franking privilege from the Supreme
Court, the Court of Appeals, the Regional trail Courts, the Municipal trial
Courts, and the National Land Registration Authority and its Register of
Deeds to all of which offices the said privilege shall be RESTORED. The
temporary restraining order dated June 2, 1992, is made permanent.

SO ORDERED.
In lumping the Judiciary with the other offices from which the franking
privilege has been withdrawn, Section 35 has placed the courts of justice in
a category to which it does not belong. If it recognizes the need of the Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero,
President of the Philippines and the members of Congress for the franking Nocon, Melo, Quiason, Puno and Vitug, JJ., concur.
privilege, there is no reason why it should not recognize a similar and in fact
greater need on the part of the Judiciary for such privilege. While we may Bellosillo, J., is on leave.
appreciate the withdrawal of the franking privilege from the Armed Forces
of the Philippines Ladies Steering Committee, we fail to understand why the
Supreme Court should be similarly treated as that Committee. And while we
may concede the need of the National Census and Statistics Office for the
franking privilege, we are intrigued that a similar if not greater need is not
recognized in the courts of justice.

(On second thought, there does not seem to be any justifiable need for
withdrawing the privilege from the Armed Forces of the Philippines Ladies
Steering Committee, which, like former Presidents of the Philippines or
their widows, does not send as much frank mail as the Judiciary.)

It is worth observing that the Philippine Postal Corporation, as a

government-controlled corporation, was created and is expected to operate
for the purpose of promoting the public service. While it may have been
established primarily for private gain, it cannot excuse itself from
performing certain functions for the benefit of the public in exchange for the
franchise extended to it by the government and the many advantages it
enjoys under its charter.14Among the services it should be prepared to
extend is free carriage of mail for certain offices of the government that
need the franking privilege in the discharge of their own public functions.

We also note that under Section 9 of the law, the Corporation is capitalized
at P10 billion pesos, 55% of which is supplied by the Government, and that
Page 12 of 60 CONSTI2 EQUAL PROTECTION
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-7995 May 31, 1957
LAO H. ICHONG, in his own behalf and in behalf of other alien
residents, corporations and partnerships adversely affected. by
Republic Act No. 1180, petitioner,
vs.
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO
SARMIENTO, City Treasurer of Manila,respondents.
Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and
Associates for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P.
de Castro for respondent Secretary of Finance.
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano
for respondent City Treasurer.
Dionisio Reyes as Amicus Curiae.
Marcial G. Mendiola as Amicus Curiae.
Emiliano R. Navarro as Amicus Curiae.
LABRADOR, J.:
I. The case and issue, in general
This Court has before it the delicate task of passing upon the validity and
constitutionality of a legislative enactment, fundamental and far-reaching in
significance. The enactment poses questions of due process, police power
and equal protection of the laws. It also poses an important issue of fact, that
is whether the conditions which the disputed law purports to remedy really
or actually exist. Admittedly springing from a deep, militant, and positive
nationalistic impulse, the law purports to protect citizen and country from
the alien retailer. Through it, and within the field of economy it regulates,
Congress attempts to translate national aspirations for economic
independence and national security, rooted in the drive and urge for national
survival and welfare, into a concrete and tangible measures designed to free
the national retailer from the competing dominance of the alien, so that the
country and the nation may be free from a supposed economic dependence
and bondage. Do the facts and circumstances justify the enactment?
II. Pertinent provisions of Republic Act No. 1180
Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business."
In effect it nationalizes the retail trade business. The main provisions of the
Act are: (1) a prohibition against persons, not citizens of the Philippines,
and against associations, partnerships, or corporations the capital of which
are not wholly owned by citizens of the Philippines, from engaging directly
or indirectly in the retail trade; (2) an exception from the above prohibition
in favor of aliens actually engaged in said business on May 15, 1954, who
are allowed to continue to engaged therein, unless their licenses are forfeited
in accordance with the law, until their death or voluntary retirement in case
of natural persons, and for ten years after the approval of the Act or until the
expiration of term in case of juridical persons; (3) an exception therefrom in
favor of citizens and juridical entities of the United States; (4) a provision
for the forfeiture of licenses (to engage in the retail business) for violation of
the laws on nationalization, control weights and measures and labor and
other laws relating to trade, commerce and industry; (5) a prohibition
against the establishment or opening by aliens actually engaged in the retail
business of additional stores or branches of retail business, (6) a provision
requiring aliens actually engaged in the retail business to present for
registration with the proper authorities a verified statement concerning their
businesses, giving, among other matters, the nature of the business, their
assets and liabilities and their offices and principal offices of judicial
entities; and (7) a provision allowing the heirs of aliens now engaged in the
retail business who die, to continue such business for a period of six months
for purposes of liquidation.
III. Grounds upon which petition is based-Answer thereto
Petitioner, for and in his own behalf and on behalf of other alien residents
corporations and partnerships adversely affected by the provisions of
Republic Act. No. 1180, brought this action to obtain a judicial declaration
that said Act is unconstitutional, and to enjoin the Secretary of Finance and
all other persons acting under him, particularly city and municipal
treasurers, from enforcing its provisions. Petitioner attacks the
constitutionality of the Act, contending that: (1) it denies to alien residents
the equal protection of the laws and deprives of their liberty and property
without due process of law ; (2) the subject of the Act is not expressed or
comprehended in the title thereof; (3) the Act violates international and
treaty obligations of the Republic of the Philippines; (4) the provisions of
Page 13 of 60 CONSTI2 EQUAL PROTECTION
the Act against the transmission by aliens of their retail business thru
hereditary succession, and those requiring 100% Filipino capitalization for a
corporation or entity to entitle it to engage in the retail business, violate the
spirit of Sections 1 and 5, Article XIII and Section 8 of Article XIV of the
Constitution.
In answer, the Solicitor-General and the Fiscal of the City of Manila
contend that: (1) the Act was passed in the valid exercise of the police
power of the State, which exercise is authorized in the Constitution in the
interest of national economic survival; (2) the Act has only one subject
embraced in the title; (3) no treaty or international obligations are infringed;
(4) as regards hereditary succession, only the form is affected but the value
of the property is not impaired, and the institution of inheritance is only of
statutory origin.
IV. Preliminary consideration of legal principles involved
a. The police power. —
There is no question that the Act was approved in the exercise of the police
power, but petitioner claims that its exercise in this instance is attended by a
violation of the constitutional requirements of due process and equal
protection of the laws. But before proceeding to the consideration and
resolution of the ultimate issue involved, it would be well to bear in mind
certain basic and fundamental, albeit preliminary, considerations in the
determination of the ever recurrent conflict between police power and the
guarantees of due process and equal protection of the laws. What is the
scope of police power, and how are the due process and equal protection
clauses related to it? What is the province and power of the legislature, and
what is the function and duty of the courts? These consideration must be
clearly and correctly understood that their application to the facts of the case
may be brought forth with clarity and the issue accordingly resolved.
It has been said the police power is so far - reaching in scope, that it has
become almost impossible to limit its sweep. As it derives its existence from
the very existence of the State itself, it does not need to be expressed or
defined in its scope; it is said to be co-extensive with self-protection and
survival, and as such it is the most positive and active of all governmental
processes, the most essential, insistent and illimitable. Especially is it so
under a modern democratic framework where the demands of society and of
nations have multiplied to almost unimaginable proportions; the field and
scope of police power has become almost boundless, just as the fields of
public interest and public welfare have become almost all-embracing and
have transcended human foresight. Otherwise stated, as we cannot foresee
the needs and demands of public interest and welfare in this constantly
changing and progressive world, so we cannot delimit beforehand the extent
or scope of police power by which and through which the State seeks to
attain or achieve interest or welfare. So it is that Constitutions do not define
the scope or extent of the police power of the State; what they do is to set
forth the limitations thereof. The most important of these are the due process
clause and the equal protection clause.
b. Limitations on police power. —
The basic limitations of due process and equal protection are found in the
following provisions of our Constitution:
SECTION 1.(1) No person shall be deprived of life, liberty or
property without due process of law, nor any person be denied the
equal protection of the laws. (Article III, Phil. Constitution)
These constitutional guarantees which embody the essence of individual
liberty and freedom in democracies, are not limited to citizens alone but are
admittedly universal in their application, without regard to any differences
of race, of color, or of nationality. (Yick Wo vs. Hopkins, 30, L. ed. 220,
226.)
c. The, equal protection clause. —
The equal protection of the law clause is against undue favor and individual
or class privilege, as well as hostile discrimination or the oppression of
inequality. It is not intended to prohibit legislation, which is limited either in
the object to which it is directed or by territory within which is to operate. It
does not demand absolute equality among residents; it merely requires that
all persons shall be treated alike, under like circumstances and
conditions both as to privileges conferred and liabilities enforced. The equal
protection clause is not infringed by legislation which applies only to those
persons falling within a specified class, if it applies alike to all persons
within such class, and reasonable grounds exists for making a distinction
between those who fall within such class and those who do not. (2 Cooley,
Constitutional Limitations, 824-825.)
d. The due process clause. —
The due process clause has to do with the reasonableness of legislation
enacted in pursuance of the police power. Is there public interest, a public
purpose; is public welfare involved? Is the Act reasonably necessary for the
accomplishment of the legislature's purpose; is it not unreasonable, arbitrary
or oppressive? Is there sufficient foundation or reason in connection with
the matter involved; or has there not been a capricious use of the legislative
power? Can the aims conceived be achieved by the means used, or is it not
merely an unjustified interference with private interest? These are the
questions that we ask when the due process test is applied.
The conflict, therefore, between police power and the guarantees of due
process and equal protection of the laws is more apparent than real. Properly
related, the power and the guarantees are supposed to coexist. The balancing
is the essence or, shall it be said, the indispensable means for the attainment
of legitimate aspirations of any democratic society. There can be no
absolute power, whoever exercise it, for that would be tyranny. Yet there
can neither be absolute liberty, for that would mean license and anarchy. So
the State can deprive persons of life, liberty and property, provided there is
due process of law; and persons may be classified into classes and groups,
provided everyone is given the equal protection of the law. The test or
standard, as always, is reason. The police power legislation must be firmly
grounded on public interest and welfare, and a reasonable relation must
exist between purposes and means. And if distinction and classification has
been made, there must be a reasonable basis for said distinction.
e. Legislative discretion not subject to judicial review. —
even pioneers, in far away nooks where the beginnings of community life
appear, ministering to the daily needs of the residents and purchasing their
agricultural produce for sale in the towns. It is an undeniable fact that in
many communities the alien has replaced the native retailer. He has shown
in this trade, industry without limit, and the patience and forbearance of a
slave.
Derogatory epithets are hurled at him, but he laughs these off without
murmur; insults of ill-bred and insolent neighbors and customers are made
in his face, but he heeds them not, and he forgets and forgives. The
community takes note of him, as he appears to be harmless and extremely
useful.
c. Alleged alien control and dominance. —
There is a general feeling on the part of the public, which appears to be true
to fact, about the controlling and dominant position that the alien retailer
holds in the nation's economy. Food and other essentials, clothing, almost
all articles of daily life reach the residents mostly through him. In big cities
and centers of population he has acquired not only predominance, but
apparent control over distribution of almost all kinds of goods, such as
lumber, hardware, textiles, groceries, drugs, sugar, flour, garlic, and scores
of other goods and articles. And were it not for some national corporations
like the Naric, the Namarco, the Facomas and the Acefa, his control over
principal foods and products would easily become full and complete.

Now, in this matter of equitable balancing, what is the proper place and role
of the courts? It must not be overlooked, in the first place, that the
legislature, which is the constitutional repository of police power and
exercises the prerogative of determining the policy of the State, is by force
of circumstances primarily the judge of necessity, adequacy or
reasonableness and wisdom, of any law promulgated in the exercise of the
police power, or of the measures adopted to implement the public policy or
to achieve public interest. On the other hand, courts, although zealous
guardians of individual liberty and right, have nevertheless evinced a
reluctance to interfere with the exercise of the legislative prerogative. They
have done so early where there has been a clear, patent or palpable arbitrary
and unreasonable abuse of the legislative prerogative. Moreover, courts are
not supposed to override legitimate policy, and courts never inquire into the
wisdom of the law.
V. Economic problems sought to be remedied
Petitioner denies that there is alien predominance and control in the retail
trade. In one breath it is said that the fear is unfounded and the threat is
imagined; in another, it is charged that the law is merely the result of
radicalism and pure and unabashed nationalism. Alienage, it is said, is not
an element of control; also so many unmanageable factors in the retail
business make control virtually impossible. The first argument which brings
up an issue of fact merits serious consideration. The others are matters of
opinion within the exclusive competence of the legislature and beyond our
prerogative to pass upon and decide.
The best evidence are the statistics on the retail trade, which put down the
figures in black and white. Between the constitutional convention year
(1935), when the fear of alien domination and control of the retail trade
already filled the minds of our leaders with fears and misgivings, and the
year of the enactment of the nationalization of the retail trade act (1954),
official statistics unmistakably point out to the ever-increasing dominance
and control by the alien of the retail trade, as witness the following tables:

With the above considerations in mind, we will now proceed to delve

directly into the issue involved. If the disputed legislation were merely a Assets Gross Sales
regulation, as its title indicates, there would be no question that it falls Year and No.- Per cent Per cent
within the legitimate scope of legislative power. But it goes further and Retailers Establishme Pesos Distributi Pesos Distributi
prohibits a group of residents, the aliens, from engaging therein. The Nationality nts on on
problem becomes more complex because its subject is a common, trade or
occupation, as old as society itself, which from the immemorial has always 194
been open to residents, irrespective of race, color or citizenship. 1:
Filipin 106,671 200,323,1 55.82 174,181,9 51.74
a. Importance of retail trade in the economy of the nation. — o 38 24
..........

In a primitive economy where families produce all that they consume and Chines 15,356 118,348,6 32.98 148,813,2 44.21
consume all that they produce, the dealer, of course, is unknown. But as e 92 39
group life develops and families begin to live in communities producing ...........
more than what they consume and needing an infinite number of things they Others 1,646 40,187,09 11.20 13,630,23 4.05
do not produce, the dealer comes into existence. As villages develop into ............ 0 9
big communities and specialization in production begins, the dealer's
194
importance is enhanced. Under modern conditions and standards of living,
in which man's needs have multiplied and diversified to unlimited extents 7:
and proportions, the retailer comes as essential as the producer, because thru Filipin 111,107 208,658,9 65.05 279,583,3 57.03
him the infinite variety of articles, goods and needed for daily life are placed o 46 33
within the easy reach of consumers. Retail dealers perform the functions of ..........
capillaries in the human body, thru which all the needed food and supplies
Chines 13,774 106,156,2 33.56 205,701,1 41.96
are ministered to members of the communities comprising the nation.
e 18 34
...........
There cannot be any question about the importance of the retailer in the life
Others 354 8,761,260 .49 4,927,168 1.01
of the community. He ministers to the resident's daily needs, food in all its
...........
increasing forms, and the various little gadgets and things needed for home
and daily life. He provides his customers around his store with the rice or 194 (Censu
corn, the fish, the salt, the vinegar, the spices needed for the daily cooking. 8: s)
He has cloths to sell, even the needle and the thread to sew them or darn the Filipin 113,631 213,342,2 67.30 467,161,6 60.51
clothes that wear out. The retailer, therefore, from the lowly peddler, the o 64 67
owner of a small sari-sari store, to the operator of a department store or, a ..........
supermarket is so much a part of day-to-day existence.
Chines 12,087 93,155,45 29.38 294,894,2 38.20
e 9 27
b. The alien retailer's trait. —
..........
Others 422 10,514,67 3.32 9,995,402 1.29
The alien retailer must have started plying his trades in this country in the
.......... 5
bigger centers of population (Time there was when he was unknown in
provincial towns and villages). Slowly but gradually be invaded towns and 194
villages; now he predominates in the cities and big centers of population. He
Page 14 of 60 CONSTI2 EQUAL PROTECTION
9: more than make up for the numerical gap through their assests and gross
sales which average between six and seven times those of the very many
Filipin 113,659 213,451,6 60.89 462,532,9 53.47 Filipino retailers. Numbers in retailers, here, do not imply superiority; the
o 02 01 alien invests more capital, buys and sells six to seven times more, and gains
.......... much more. The same official report, pointing out to the known
Chines 16,248 125,223,3 35.72 392,414,8 45.36 predominance of foreign elements in the retail trade, remarks that the
e 36 75 Filipino retailers were largely engaged in minor retailer enterprises. As
.......... observed by respondents, the native investment is thinly spread, and the
Filipino retailer is practically helpless in matters of capital, credit, price and
Others 486 12,056,36 3.39 10,078,36 1.17 supply.
.......... 5 4
195 d. Alien control and threat, subject of apprehension in Constitutional
1: convention. —
Filipin 119,352 224,053,6 61.09 466,058,0 53.07
o ......... 20 52 It is this domination and control, which we believe has been sufficiently
Chines 17,429 134,325,3 36.60 404,481,3 46.06 shown to exist, that is the legislature's target in the enactment of the
e 03 84 disputed nationalization would never have been adopted. The framers of our
.......... Constitution also believed in the existence of this alien dominance and
control when they approved a resolution categorically declaring among
Others 347 8,614,025 2.31 7,645,327 87 other things, that "it is the sense of the Convention that the public interest
.......... requires the nationalization of the retail trade; . . . ." (II Aruego, The
Framing of the Philippine Constitution, 662-663, quoted on page 67 of
Petitioner.) That was twenty-two years ago; and the events since then have
not been either pleasant or comforting. Dean Sinco of the University of the
Philippines College of Law, commenting on the patrimony clause of the
AVERAGE Preamble opines that the fathers of our Constitution were merely translating
ASSETS AND GROSS SALES PER ESTABLISHMENT the general preoccupation of Filipinos "of the dangers from alien interests
that had already brought under their control the commercial and other
Item Gross economic activities of the country" (Sinco, Phil. Political Law, 10th ed., p.
Year and Retailer's 114); and analyzing the concern of the members of the constitutional
Assets Sales
Nationality convention for the economic life of the citizens, in connection with the
(Pesos) (Pesos)
nationalistic provisions of the Constitution, he says:
1941:
But there has been a general feeling that alien dominance over the
Filipino ............................................. 1,878 1,633 economic life of the country is not desirable and that if such a
situation should remain, political independence alone is no
Chinese .............................................. 7,707 9,691 guarantee to national stability and strength. Filipino private
capital is not big enough to wrest from alien hands the control of
Others ............................................... 24,415 8,281 the national economy. Moreover, it is but of recent formation and
hence, largely inexperienced, timid and hesitant. Under such
1947: conditions, the government as the instrumentality of the national
will, has to step in and assume the initiative, if not the leadership,
Filipino ............................................. 1,878 2,516 in the struggle for the economic freedom of the nation in
somewhat the same way that it did in the crusade for political
Chinese ........................................... 7,707 14,934 freedom. Thus . . . it (the Constitution) envisages an organized
movement for the protection of the nation not only against the
possibilities of armed invasion but also against its economic
Others .............................................. 24,749 13,919
subjugation by alien interests in the economic field. (Phil.
Political Law by Sinco, 10th ed., p. 476.)
1948: (Census)

Filipino ............................................. 1,878
Chinese ............................................. 7,707
Others .............................................. 24,916
1949:
Filipino ............................................. 1,878
Chinese .............................................. 7,707
Others .............................................. 24,807
1951:
Filipino ............................................. 1,877
Chinese ............................................. 7,707
Others ............................................... 24,824
(Estimated Assets and Gross Sales of Retail Establishments, By
Year and Nationality of Owners, Benchmark: 1948 Census,
issued by the Bureau of Census and Statistics, Department of
Commerce and Industry; pp. 18-19 of Answer.)
The above statistics do not include corporations and partnerships, while the
figures on Filipino establishments already include mere market vendors,
whose capital is necessarily small..
The above figures reveal that in percentage distribution of assests and gross
sales, alien participation has steadily increased during the years. It is true, of
course, that Filipinos have the edge in the number of retailers, but aliens
4,111 Belief in the existence of alien control and predominance is felt in other
quarters. Filipino businessmen, manufacturers and producers believe so;
24,398 they fear the dangers coming from alien control, and they express
sentiments of economic independence. Witness thereto is Resolution No. 1,
23,686 approved on July 18, 1953, of the Fifth National convention of Filipino
Businessmen, and a similar resolution, approved on March 20, 1954, of the
Second National Convention of Manufacturers and Producers. The man in
the street also believes, and fears, alien predominance and control; so our
newspapers, which have editorially pointed out not only to control but to
4,069
alien stranglehold. We, therefore, find alien domination and control to be a
fact, a reality proved by official statistics, and felt by all the sections and
24,152
groups that compose the Filipino community.
20,737
e. Dangers of alien control and dominance in retail. —
But the dangers arising from alien participation in the retail trade does not
3,905 seem to lie in the predominance alone; there is a prevailing feeling that such
predominance may truly endanger the national interest. With ample capital,
33,207 unity of purpose and action and thorough organization, alien retailers and
merchants can act in such complete unison and concert on such vital matters
22,033 as the fixing of prices, the determination of the amount of goods or articles
to be made available in the market, and even the choice of the goods or
articles they would or would not patronize or distribute, that fears of
dislocation of the national economy and of the complete subservience of
national economy and of the consuming public are not entirely unfounded.
Nationals, producers and consumers alike can be placed completely at their
mercy. This is easily illustrated. Suppose an article of daily use is desired to
be prescribed by the aliens, because the producer or importer does not offer
them sufficient profits, or because a new competing article offers bigger
profits for its introduction. All that aliens would do is to agree to refuse to
sell the first article, eliminating it from their stocks, offering the new one as
a substitute. Hence, the producers or importers of the prescribed article, or
its consumers, find the article suddenly out of the prescribed article, or its
consumers, find the article suddenly out of circulation. Freedom of trade is
thus curtailed and free enterprise correspondingly suppressed.

Page 15 of 60 CONSTI2 EQUAL PROTECTION

We can even go farther than theoretical illustrations to show the pernicious
influences of alien domination. Grave abuses have characterized the
exercise of the retail trade by aliens. It is a fact within judicial notice, which
courts of justice may not properly overlook or ignore in the interests of truth
and justice, that there exists a general feeling on the part of the public that
alien participation in the retail trade has been attended by a pernicious and
intolerable practices, the mention of a few of which would suffice for our
purposes; that at some time or other they have cornered the market of
essential commodities, like corn and rice, creating artificial scarcities to
justify and enhance profits to unreasonable proportions; that they have
hoarded essential foods to the inconvenience and prejudice of the
consuming public, so much so that the Government has had to establish the
National Rice and Corn Corporation to save the public from their
continuous hoarding practices and tendencies; that they have violated price
control laws, especially on foods and essential commodities, such that the
legislature had to enact a law (Sec. 9, Republic Act No. 1168), authorizing
their immediate and automatic deportation for price control convictions; that
they have secret combinations among themselves to control prices, cheating
the operation of the law of supply and demand; that they have connived to
boycott honest merchants and traders who would not cater or yield to their
demands, in unlawful restraint of freedom of trade and enterprise. They are
believed by the public to have evaded tax laws, smuggled goods and money
into and out of the land, violated import and export prohibitions, control
laws and the like, in derision and contempt of lawful authority. It is also
believed that they have engaged in corrupting public officials with fabulous
bribes, indirectly causing the prevalence of graft and corruption in the
Government. As a matter of fact appeals to unscrupulous aliens have been
made both by the Government and by their own lawful diplomatic
representatives, action which impliedly admits a prevailing feeling about the
existence of many of the above practices.
The circumstances above set forth create well founded fears that worse
things may come in the future. The present dominance of the alien retailer,
especially in the big centers of population, therefore, becomes a potential
source of danger on occasions of war or other calamity. We do not have
here in this country isolated groups of harmless aliens retailing goods
among nationals; what we have are well organized and powerful groups that
dominate the distribution of goods and commodities in the communities and
big centers of population. They owe no allegiance or loyalty to the State,
and the State cannot rely upon them in times of crisis or emergency. While
the national holds his life, his person and his property subject to the needs of
his country, the alien may even become the potential enemy of the State.
f. Law enacted in interest of national economic survival and security. —
We are fully satisfied upon a consideration of all the facts and
circumstances that the disputed law is not the product of racial hostility,
prejudice or discrimination, but the expression of the legitimate desire and
determination of the people, thru their authorized representatives, to free the
nation from the economic situation that has unfortunately been saddled upon
it rightly or wrongly, to its disadvantage. The law is clearly in the interest of
the public, nay of the national security itself, and indisputably falls within
the scope of police power, thru which and by which the State insures its
existence and security and the supreme welfare of its citizens.
VI. The Equal Protection Limitation
a. Objections to alien participation in retail trade. — The next question that
now poses solution is, Does the law deny the equal protection of the laws?
As pointed out above, the mere fact of alienage is the root and cause of the
distinction between the alien and the national as a trader. The alien resident
owes allegiance to the country of his birth or his adopted country; his stay
here is for personal convenience; he is attracted by the lure of gain and
profit. His aim or purpose of stay, we admit, is neither illegitimate nor
immoral, but he is naturally lacking in that spirit of loyalty and enthusiasm
for this country where he temporarily stays and makes his living, or of that
spirit of regard, sympathy and consideration for his Filipino customers as
would prevent him from taking advantage of their weakness and exploiting
them. The faster he makes his pile, the earlier can the alien go back to his
beloved country and his beloved kin and countrymen. The experience of the
country is that the alien retailer has shown such utter disregard for his
customers and the people on whom he makes his profit, that it has been
found necessary to adopt the legislation, radical as it may seem.
Another objection to the alien retailer in this country is that he never really
makes a genuine contribution to national income and wealth. He
undoubtedly contributes to general distribution, but the gains and profits he
makes are not invested in industries that would help the country's economy
and increase national wealth. The alien's interest in this country being
merely transient and temporary, it would indeed be ill-advised to continue
entrusting the very important function of retail distribution to his hands.
The practices resorted to by aliens in the control of distribution, as already
pointed out above, their secret manipulations of stocks of commodities and
prices, their utter disregard of the welfare of their customers and of the
ultimate happiness of the people of the nation of which they are mere
Page 16 of 60 CONSTI2 EQUAL PROTECTION
guests, which practices, manipulations and disregard do not attend the
exercise of the trade by the nationals, show the existence of real and actual,
positive and fundamental differences between an alien and a national which
fully justify the legislative classification adopted in the retail trade measure.
These differences are certainly a valid reason for the State to prefer the
national over the alien in the retail trade. We would be doing violence to
fact and reality were we to hold that no reason or ground for a legitimate
distinction can be found between one and the other.
b. Difference in alien aims and purposes sufficient basis for distinction. —
The above objectionable characteristics of the exercise of the retail trade by
the aliens, which are actual and real, furnish sufficient grounds for
legislative classification of retail traders into nationals and aliens. Some may
disagree with the wisdom of the legislature's classification. To this we
answer, that this is the prerogative of the law-making power. Since the
Court finds that the classification is actual, real and reasonable, and all
persons of one class are treated alike, and as it cannot be said that the
classification is patently unreasonable and unfounded, it is in duty bound to
declare that the legislature acted within its legitimate prerogative and it can
not declare that the act transcends the limit of equal protection established
by the Constitution.
Broadly speaking, the power of the legislature to make distinctions and
classifications among persons is not curtailed or denied by the equal
protection of the laws clause. The legislative power admits of a wide scope
of discretion, and a law can be violative of the constitutional limitation only
when the classification is without reasonable basis. In addition to the
authorities we have earlier cited, we can also refer to the case of Linsey vs.
Natural Carbonic Fas Co. (1911), 55 L. ed., 369, which clearly and
succinctly defined the application of equal protection clause to a law sought
to be voided as contrary thereto:
. . . . "1. The equal protection clause of the Fourteenth
Amendment does not take from the state the power to classify in
the adoption of police laws, but admits of the exercise of the wide
scope of discretion in that regard, and avoids what is done only
when it is without any reasonable basis, and therefore is purely
arbitrary. 2. A classification having some reasonable basis does
not offend against that clause merely because it is not made with
mathematical nicety, or because in practice it results in some
inequality. 3. When the classification in such a law is called in
question, if any state of facts reasonably can be conceived that
would sustain it, the existence of that state of facts at the time the
law was enacted must be assumed. 4. One who assails the
classification in such a law must carry the burden of showing that
it does not rest upon any reasonable basis but is essentially
arbitrary."
c. Authorities recognizing citizenship as basis for classification. —
The question as to whether or not citizenship is a legal and valid ground for
classification has already been affirmatively decided in this jurisdiction as
well as in various courts in the United States. In the case of Smith Bell &
Co. vs. Natividad, 40 Phil. 136, where the validity of Act No. 2761 of the
Philippine Legislature was in issue, because of a condition therein limiting
the ownership of vessels engaged in coastwise trade to corporations formed
by citizens of the Philippine Islands or the United States, thus denying the
right to aliens, it was held that the Philippine Legislature did not violate the
equal protection clause of the Philippine Bill of Rights. The legislature in
enacting the law had as ultimate purpose the encouragement of Philippine
shipbuilding and the safety for these Islands from foreign interlopers. We
held that this was a valid exercise of the police power, and all presumptions
are in favor of its constitutionality. In substance, we held that the limitation
of domestic ownership of vessels engaged in coastwise trade to citizens of
the Philippines does not violate the equal protection of the law and due
process or law clauses of the Philippine Bill of Rights. In rendering said
decision we quoted with approval the concurring opinion of Justice Johnson
in the case of Gibbons vs. Ogden, 9 Wheat., I, as follows:
"Licensing acts, in fact, in legislation, are universally restraining
acts; as, for example, acts licensing gaming houses, retailers of
spirituous liquors, etc. The act, in this instance, is distinctly of
that character, and forms part of an extensive system, the object
of which is to encourage American shipping, and place them on
an equal footing with the shipping of other nations. Almost every
commercial nation reserves to its own subjects a monopoly of its
coasting trade; and a countervailing privilege in favor of
American shipping is contemplated, in the whole legislation of
the United States on this subject. It is not to give the vessel an
American character, that the license is granted; that effect has
been correctly attributed to the act of her enrollment. But it is to
confer on her American privileges, as contra distinguished from
foreign; and to preserve the Government from fraud by
foreigners; in surreptitiously intruding themselves into the
 American commercial marine, as well as frauds upon the revenue
in the trade coastwise, that this whole system is projected."
The rule in general is as follows:
Aliens are under no special constitutional protection which
forbids a classification otherwise justified simply because the
limitation of the class falls along the lines of nationality. That
would be requiring a higher degree of protection for aliens as a
class than for similar classes than for similar classes of American
citizens. Broadly speaking, the difference in status between
citizens and aliens constitutes a basis for reasonable classification
in the exercise of police power. (2 Am., Jur. 468-469.)
In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute
on the licensing of hawkers and peddlers, which provided that no one can
obtain a license unless he is, or has declared his intention, to become a
citizen of the United States, was held valid, for the following reason: It may
seem wise to the legislature to limit the business of those who are supposed
to have regard for the welfare, good order and happiness of the community,
and the court cannot question this judgment and conclusion. In Bloomfield
vs. State, 99 N. E. 309 (Ohio, 1912), a statute which prevented certain
persons, among them aliens, from engaging in the traffic of liquors, was
found not to be the result of race hatred, or in hospitality, or a deliberate
purpose to discriminate, but was based on the belief that an alien cannot be
sufficiently acquainted with "our institutions and our life as to enable him to
appreciate the relation of this particular business to our entire social fabric",
and was not, therefore, invalid. In Ohio ex rel. Clarke vs. Deckebach, 274
U. S. 392, 71 L. ed. 115 (1926), the U.S. Supreme Court had under
consideration an ordinance of the city of Cincinnati prohibiting the issuance
of licenses (pools and billiard rooms) to aliens. It held that plainly irrational
discrimination against aliens is prohibited, but it does not follow that alien
race and allegiance may not bear in some instances such a relation to a
legitimate object of legislation as to be made the basis of permitted
classification, and that it could not state that the legislation is clearly wrong;
and that latitude must be allowed for the legislative appraisement of local
conditions and for the legislative choice of methods for controlling an
apprehended evil. The case of State vs. Carrol, 124 N. E. 129 (Ohio, 1919)
is a parallel case to the one at bar. In Asakura vs. City of Seattle, 210 P. 30
(Washington, 1922), the business of pawn brooking was considered as
having tendencies injuring public interest, and limiting it to citizens is
within the scope of police power. A similar statute denying aliens the right
to engage in auctioneering was also sustained in Wright vs. May, L.R.A.,
1915 P. 151 (Minnesota, 1914). So also in Anton vs. Van Winkle, 297 F. 340
(Oregon, 1924), the court said that aliens are judicially known to have
different interests, knowledge, attitude, psychology and loyalty, hence the
prohibitions of issuance of licenses to them for the business of pawnbroker,
pool, billiard, card room, dance hall, is not an infringement of constitutional
rights. In Templar vs. Michigan State Board of Examiners, 90 N.W. 1058
(Michigan, 1902), a law prohibiting the licensing of aliens as barbers was
held void, but the reason for the decision was the court's findings that the
exercise of the business by the aliens does not in any way affect the morals,
the health, or even the convenience of the community. In Takahashi vs. Fish
and Game Commission, 92 L. ed. 1479 (1947), a California statute banning
the issuance of commercial fishing licenses to person ineligible to
citizenship was held void, because the law conflicts with Federal power
over immigration, and because there is no public interest in the mere claim
of ownership of the waters and the fish in them, so there was no adequate
justification for the discrimination. It further added that the law was the
outgrowth of antagonism toward the persons of Japanese ancestry.
However, two Justices dissented on the theory that fishing rights have been
treated traditionally as natural resources. In Fraser vs. McConway & Tarley
Co., 82 Fed. 257 (Pennsylvania, 1897), a state law which imposed a tax on
every employer of foreign-born unnaturalized male persons over 21 years of
age, was declared void because the court found that there was no reason for
the classification and the tax was an arbitrary deduction from the daily wage
of an employee.
d. Authorities contra explained. —
It is true that some decisions of the Federal court and of the State courts in
the United States hold that the distinction between aliens and citizens is not
a valid ground for classification. But in this decision the laws declared
invalid were found to be either arbitrary, unreasonable or capricious, or
were the result or product of racial antagonism and hostility, and there was
no question of public interest involved or pursued. In Yu Cong Eng vs.
Trinidad, 70 L. ed. 1059 (1925), the United States Supreme Court declared
invalid a Philippine law making unlawful the keeping of books of account in
any language other than English, Spanish or any other local dialect, but the
main reasons for the decisions are: (1) that if Chinese were driven out of
business there would be no other system of distribution, and (2) that the
Chinese would fall prey to all kinds of fraud, because they would be
deprived of their right to be advised of their business and to direct its
conduct. The real reason for the decision, therefore, is the court's belief that
no public benefit would be derived from the operations of the law and on
the other hand it would deprive Chinese of something indispensable for
carrying on their business. In Yick Wo vs. Hopkins, 30 L. ed 220 (1885) an
Page 17 of 60 CONSTI2 EQUAL PROTECTION
ordinance conferring powers on officials to withhold consent in the
operation of laundries both as to persons and place, was declared invalid,
but the court said that the power granted was arbitrary, that there was no
reason for the discrimination which attended the administration and
implementation of the law, and that the motive thereof was mere racial
hostility. In State vs. Montgomery, 47 A. 165 (Maine, 1900), a law
prohibiting aliens to engage as hawkers and peddlers was declared void,
because the discrimination bore no reasonable and just relation to the act in
respect to which the classification was proposed.
The case at bar is radically different, and the facts make them so. As we
already have said, aliens do not naturally possess the sympathetic
consideration and regard for the customers with whom they come in daily
contact, nor the patriotic desire to help bolster the nation's economy, except
in so far as it enhances their profit, nor the loyalty and allegiance which the
national owes to the land. These limitations on the qualifications of the
aliens have been shown on many occasions and instances, especially in
times of crisis and emergency. We can do no better than borrow the
language of Anton vs. Van Winkle, 297 F. 340, 342, to drive home the reality
and significance of the distinction between the alien and the national, thus:
. . . . It may be judicially known, however, that alien coming into
this country are without the intimate knowledge of our laws,
customs, and usages that our own people have. So it is likewise
known that certain classes of aliens are of different psychology
from our fellow countrymen. Furthermore, it is natural and
reasonable to suppose that the foreign born, whose allegiance is
first to their own country, and whose ideals of governmental
environment and control have been engendered and formed under
entirely different regimes and political systems, have not the
same inspiration for the public weal, nor are they as well disposed
toward the United States, as those who by citizenship, are a part
of the government itself. Further enlargement, is unnecessary. I
have said enough so that obviously it cannot be affirmed with
absolute confidence that the Legislature was without plausible
reason for making the classification, and therefore appropriate
discriminations against aliens as it relates to the subject of
legislation. . . . .
VII. The Due Process of Law Limitation.
a. Reasonability, the test of the limitation; determination by legislature
decisive. —
We now come to due process as a limitation on the exercise of the police
power. It has been stated by the highest authority in the United States that:
. . . . And the guaranty of due process, as has often been held,
demands only that the law shall not be unreasonable, arbitrary or
capricious, and that the means selected shall have a real and
substantial relation to the subject sought to be attained. . . . .
xxx xxx xxx
So far as the requirement of due process is concerned and in the
absence of other constitutional restriction a state is free to adopt
whatever economic policy may reasonably be deemed to promote
public welfare, and to enforce that policy by legislation adapted
to its purpose. The courts are without authority either to declare
such policy, or, when it is declared by the legislature, to override
it. If the laws passed are seen to have a reasonable relation to a
proper legislative purpose, and are neither arbitrary nor
discriminatory, the requirements of due process are satisfied, and
judicial determination to that effect renders a court functus
officio. . . . (Nebbia vs. New York, 78 L. ed. 940, 950, 957.)
Another authority states the principle thus:
. . . . Too much significance cannot be given to the word
"reasonable" in considering the scope of the police power in a
constitutional sense, for the test used to determine the
constitutionality of the means employed by the legislature is to
inquire whether the restriction it imposes on rights secured to
individuals by the Bill of Rights are unreasonable, and not
whether it imposes any restrictions on such rights. . . .
xxx xxx xxx
. . . . A statute to be within this power must also be reasonable in
its operation upon the persons whom it affects, must not be for
the annoyance of a particular class, and must not be unduly
oppressive. (11 Am. Jur. Sec. 302., 1:1)- 1074-1075.)
In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held:
. . . . To justify the state in thus interposing its authority in behalf
of the public, it must appear, first, that the interests of the public
generally, as distinguished from those of a particular class,
require such interference; and second, that the means are
reasonably necessary for the accomplishment of the purpose, and
not unduly oppressive upon individuals. . . .
Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395,
fixes this test of constitutionality:
In determining whether a given act of the Legislature, passed in
the exercise of the police power to regulate the operation of a
business, is or is not constitutional, one of the first questions to be
considered by the court is whether the power as exercised has a
sufficient foundation in reason in connection with the matter
involved, or is an arbitrary, oppressive, and capricious use of that
power, without substantial relation to the health, safety, morals,
comfort, and general welfare of the public.
b. Petitioner's argument considered. —
Petitioner's main argument is that retail is a common, ordinary occupation,
one of those privileges long ago recognized as essential to the orderly
pursuant of happiness by free men; that it is a gainful and honest occupation
and therefore beyond the power of the legislature to prohibit and penalized.
This arguments overlooks fact and reality and rests on an incorrect
assumption and premise, i.e., that in this country where the occupation is
engaged in by petitioner, it has been so engaged by him, by the alien in an
honest creditable and unimpeachable manner, without harm or injury to the
citizens and without ultimate danger to their economic peace, tranquility and
welfare. But the Legislature has found, as we have also found and indicated,
that the privilege has been so grossly abused by the alien, thru the
illegitimate use of pernicious designs and practices, that he now enjoys a
monopolistic control of the occupation and threatens a deadly stranglehold
on the nation's economy endangering the national security in times of crisis
and emergency.
The real question at issue, therefore, is not that posed by petitioner, which
overlooks and ignores the facts and circumstances, but this, Is the exclusion
in the future of aliens from the retail trade unreasonable. Arbitrary
capricious, taking into account the illegitimate and pernicious form and
manner in which the aliens have heretofore engaged therein? As thus
correctly stated the answer is clear. The law in question is deemed
absolutely necessary to bring about the desired legislative objective, i.e., to
free national economy from alien control and dominance. It is not
necessarily unreasonable because it affects private rights and privileges (11
Am. Jur. pp. 1080-1081.) The test of reasonableness of a law is the
appropriateness or adequacy under all circumstances of the means adopted
to carry out its purpose into effect (Id.) Judged by this test, disputed
legislation, which is not merely reasonable but actually necessary, must be
considered not to have infringed the constitutional limitation of
reasonableness.
The necessity of the law in question is explained in the explanatory note that
accompanied the bill, which later was enacted into law:
This bill proposes to regulate the retail business. Its purpose is to
prevent persons who are not citizens of the Philippines from
having a strangle hold upon our economic life. If the persons who
control this vital artery of our economic life are the ones who owe
no allegiance to this Republic, who have no profound devotion to
our free institutions, and who have no permanent stake in our
people's welfare, we are not really the masters of our destiny. All
aspects of our life, even our national security, will be at the mercy
of other people.
In seeking to accomplish the foregoing purpose, we do not
propose to deprive persons who are not citizens of the Philippines
of their means of livelihood. While this bill seeks to take away
from the hands of persons who are not citizens of the Philippines
a power that can be wielded to paralyze all aspects of our national
life and endanger our national security it respects existing rights.
The approval of this bill is necessary for our national survival.
If political independence is a legitimate aspiration of a people, then
economic independence is none the less legitimate. Freedom and liberty are
not real and positive if the people are subject to the economic control and
domination of others, especially if not of their own race or country. The
removal and eradication of the shackles of foreign economic control and
domination, is one of the noblest motives that a national legislature may
pursue. It is impossible to conceive that legislation that seeks to bring it
Page 18 of 60 CONSTI2 EQUAL PROTECTION
about can infringe the constitutional limitation of due process. The
attainment of a legitimate aspiration of a people can never be beyond the
limits of legislative authority.
c. Law expressly held by Constitutional Convention to be within the sphere
of legislative action. —
The framers of the Constitution could not have intended to impose the
constitutional restrictions of due process on the attainment of such a noble
motive as freedom from economic control and domination, thru the exercise
of the police power. The fathers of the Constitution must have given to the
legislature full authority and power to enact legislation that would promote
the supreme happiness of the people, their freedom and liberty. On the
precise issue now before us, they expressly made their voice clear; they
adopted a resolution expressing their belief that the legislation in question is
within the scope of the legislative power. Thus they declared the their
Resolution:
That it is the sense of the Convention that the public interest
requires the nationalization of retail trade; but it abstain from
approving the amendment introduced by the Delegate for Manila,
Mr. Araneta, and others on this matter because it is convinced
that the National Assembly is authorized to promulgate a law
which limits to Filipino and American citizens the privilege to
engage in the retail trade. (11 Aruego, The Framing of the
Philippine Constitution, quoted on pages 66 and 67 of the
Memorandum for the Petitioner.)
It would do well to refer to the nationalistic tendency manifested in various
provisions of the Constitution. Thus in the preamble, a principle objective is
the conservation of the patrimony of the nation and as corollary the
provision limiting to citizens of the Philippines the exploitation,
development and utilization of its natural resources. And in Section 8 of
Article XIV, it is provided that "no franchise, certificate, or any other form
of authorization for the operation of the public utility shall be granted except
to citizens of the Philippines." The nationalization of the retail trade is only
a continuance of the nationalistic protective policy laid down as a primary
objective of the Constitution. Can it be said that a law imbued with the same
purpose and spirit underlying many of the provisions of the Constitution is
unreasonable, invalid and unconstitutional?
The seriousness of the Legislature's concern for the plight of the nationals as
manifested in the approval of the radical measures is, therefore, fully
justified. It would have been recreant to its duties towards the country and
its people would it view the sorry plight of the nationals with the
complacency and refuse or neglect to adopt a remedy commensurate with
the demands of public interest and national survival. As the repository of the
sovereign power of legislation, the Legislature was in duty bound to face the
problem and meet, through adequate measures, the danger and threat that
alien domination of retail trade poses to national economy.
d. Provisions of law not unreasonable. —
A cursory study of the provisions of the law immediately reveals how
tolerant, how reasonable the Legislature has been. The law is made
prospective and recognizes the right and privilege of those already engaged
in the occupation to continue therein during the rest of their lives; and
similar recognition of the right to continue is accorded associations of
aliens. The right or privilege is denied to those only upon conviction of
certain offenses. In the deliberations of the Court on this case, attention was
called to the fact that the privilege should not have been denied to children
and heirs of aliens now engaged in the retail trade. Such provision would
defeat the law itself, its aims and purposes. Beside, the exercise of
legislative discretion is not subject to judicial review. It is well settled that
the Court will not inquire into the motives of the Legislature, nor pass upon
general matters of legislative judgment. The Legislature is primarily the
judge of the necessity of an enactment or of any of its provisions, and every
presumption is in favor of its validity, and though the Court may hold views
inconsistent with the wisdom of the law, it may not annul the legislation if
not palpably in excess of the legislative power. Furthermore, the test of the
validity of a law attacked as a violation of due process, is not its
reasonableness, but its unreasonableness, and we find the provisions are not
unreasonable. These principles also answer various other arguments raised
against the law, some of which are: that the law does not promote general
welfare; that thousands of aliens would be thrown out of employment; that
prices will increase because of the elimination of competition; that there is
no need for the legislation; that adequate replacement is problematical; that
there may be general breakdown; that there would be repercussions from
foreigners; etc. Many of these arguments are directed against the supposed
wisdom of the law which lies solely within the legislative prerogative; they
do not import invalidity.
VIII. Alleged defect in the title of the law
A subordinate ground or reason for the alleged invalidity of the law is the
claim that the title thereof is misleading or deceptive, as it conceals the real
purpose of the bill which is to nationalize the retail business and prohibit
aliens from engaging therein. The constitutional provision which is claimed
to be violated in Section 21 (1) of Article VI, which reads:
No bill which may be enacted in the law shall embrace more than
one subject which shall be expressed in the title of the bill.
What the above provision prohibits is duplicity, that is, if its title completely
fails to appraise the legislators or the public of the nature, scope and
consequences of the law or its operation (I Sutherland, Statutory
Construction, Sec. 1707, p. 297.) A cursory consideration of the title and the
provisions of the bill fails to show the presence of duplicity. It is true that
the term "regulate" does not and may not readily and at first glance convey
the idea of "nationalization" and "prohibition", which terms express the two
main purposes and objectives of the law. But "regulate" is a broader term
than either prohibition or nationalization. Both of these have always been
included within the term regulation.
Under the title of an act to "regulate", the sale of intoxicating
liquors, the Legislature may prohibit the sale of intoxicating
liquors. (Sweet vs. City of Wabash, 41 Ind., 7; quoted in page 41
of Answer.)
Within the meaning of the Constitution requiring that the subject
of every act of the Legislature shall be stated in the tale, the title
to regulate the sale of intoxicating liquors, etc." sufficiently
expresses the subject of an actprohibiting the sale of such liquors
to minors and to persons in the habit of getting intoxicated; such
matters being properly included within the subject of regulating
the sale. (Williams vs. State, 48 Ind. 306, 308, quoted in p. 42 of
Answer.)
The word "regulate" is of broad import, and necessarily implies
some degree of restraint and prohibition of acts usually done in
connection with the thing to be regulated. While word regulate
does not ordinarily convey meaning of prohibit, there is no
absolute reason why it should not have such meaning when used
in delegating police power in connection with a thing the best or
only efficacious regulation of which involves suppression. (State
vs. Morton, 162 So. 718, 182 La. 887, quoted in p. 42 of
Answer.)
The general rule is for the use of general terms in the title of a bill; it has
also been said that the title need not be an index to the entire contents of the
law (I Sutherland, Statutory Construction, See. 4803, p. 345.) The above
rule was followed the title of the Act in question adopted the more general
term "regulate" instead of "nationalize" or "prohibit". Furthermore, the law
also contains other rules for the regulation of the retail trade which may not
be included in the terms "nationalization" or "prohibition"; so were the title
changed from "regulate" to "nationalize" or "prohibit", there would have
been many provisions not falling within the scope of the title which would
have made the Act invalid. The use of the term "regulate", therefore, is in
accord with the principle governing the drafting of statutes, under which a
simple or general term should be adopted in the title, which would include
all other provisions found in the body of the Act.
The Treaty of Amity between the Republic of the Philippines and the
Republic of China of April 18, 1947 is also claimed to be violated by the
law in question. All that the treaty guarantees is equality of treatment to the
Chinese nationals "upon the same terms as the nationals of any other
country." But the nationals of China are not discriminating against because
nationals of all other countries, except those of the United States, who are
granted special rights by the Constitution, are all prohibited from engaging
in the retail trade. But even supposing that the law infringes upon the said
treaty, the treaty is always subject to qualification or amendment by a
subsequent law (U. S. vs. Thompson, 258, Fed. 257, 260), and the same may
never curtail or restrict the scope of the police power of the State (plaston
vs. Pennsylvania, 58 L. ed. 539.)
X. Conclusion
Resuming what we have set forth above we hold that the disputed law was
enacted to remedy a real actual threat and danger to national economy posed
by alien dominance and control of the retail business and free citizens and
country from dominance and control; that the enactment clearly falls within
the scope of the police power of the State, thru which and by which it
protects its own personality and insures its security and future; that the law
does not violate the equal protection clause of the Constitution because
sufficient grounds exist for the distinction between alien and citizen in the
exercise of the occupation regulated, nor the due process of law clause,
because the law is prospective in operation and recognizes the privilege of
aliens already engaged in the occupation and reasonably protects their
privilege; that the wisdom and efficacy of the law to carry out its objectives
appear to us to be plainly evident — as a matter of fact it seems not only
appropriate but actually necessary — and that in any case such matter falls
within the prerogative of the Legislature, with whose power and discretion
the Judicial department of the Government may not interfere; that the
provisions of the law are clearly embraced in the title, and this suffers from
no duplicity and has not misled the legislators or the segment of the
population affected; and that it cannot be said to be void for supposed
conflict with treaty obligations because no treaty has actually been entered
into on the subject and the police power may not be curtailed or surrendered
by any treaty or any other conventional agreement.
Some members of the Court are of the opinion that the radical effects of the
law could have been made less harsh in its impact on the aliens. Thus it is
stated that the more time should have been given in the law for the
liquidation of existing businesses when the time comes for them to close.
Our legal duty, however, is merely to determine if the law falls within the
scope of legislative authority and does not transcend the limitations of due
process and equal protection guaranteed in the Constitution. Remedies
against the harshness of the law should be addressed to the Legislature; they
are beyond our power and jurisdiction.
The petition is hereby denied, with costs against petitioner.
Paras, C.J., Bengzon, Reyes, A., Bautista Angelo, Concepcion, Reyes,
J.B.L., Endencia and Felix, JJ., concur.

One purpose of the constitutional directive that the subject of a bill should
be embraced in its title is to apprise the legislators of the purposes, the
nature and scope of its provisions, and prevent the enactment into law of
matters which have received the notice, action and study of the legislators or
of the public. In the case at bar it cannot be claimed that the legislators have
been appraised of the nature of the law, especially the nationalization and
the prohibition provisions. The legislators took active interest in the
discussion of the law, and a great many of the persons affected by the
prohibitions in the law conducted a campaign against its approval. It cannot
be claimed, therefore, that the reasons for declaring the law invalid ever
existed. The objection must therefore, be overruled.

IX. Alleged violation of international treaties and obligations

Another subordinate argument against the validity of the law is the supposed
violation thereby of the Charter of the United Nations and of the Declaration
of the Human Rights adopted by the United Nations General Assembly. We
find no merit in the Nations Charter imposes no strict or legal obligations
regarding the rights and freedom of their subjects (Hans Kelsen, The Law of
the United Nations, 1951 ed. pp. 29-32), and the Declaration of Human
Rights contains nothing more than a mere recommendation or a common
standard of achievement for all peoples and all nations (Id. p. 39.) That such
is the import of the United Nations Charter aid of the Declaration of Human
Rights can be inferred the fact that members of the United Nations
Organizations, such as Norway and Denmark, prohibit foreigners from
engaging in retail trade, and in most nations of the world laws against
foreigners engaged in domestic trade are adopted.
Page 19 of 60 CONSTI2 EQUAL PROTECTION
Page 20 of 60 CONSTI2 EQUAL PROTECTION
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-25246 September 12, 1974
BENJAMIN VICTORIANO, plaintiff-appellee,
vs.
ELIZALDE ROPE WORKERS' UNION and ELIZALDE ROPE
FACTORY, INC., defendants, ELIZALDE ROPE WORKERS'
UNION, defendant-appellant.
Salonga, Ordonez, Yap, Sicat & Associates for plaintiff-appellee.
Cipriano Cid & Associates for defendant-appellant.
ZALDIVAR, J.:p
Appeal to this Court on purely questions of law from the decision of the
Court of First Instance of Manila in its Civil Case No. 58894.
The undisputed facts that spawned the instant case follow:
Benjamin Victoriano (hereinafter referred to as Appellee), a member of the
religious sect known as the "Iglesia ni Cristo", had been in the employ of the
Elizalde Rope Factory, Inc. (hereinafter referred to as Company) since 1958.
As such employee, he was a member of the Elizalde Rope Workers' Union
(hereinafter referred to as Union) which had with the Company a collective
bargaining agreement containing a closed shop provision which reads as
follows:
Membership in the Union shall be required as a
condition of employment for all permanent employees
workers covered by this Agreement.
The collective bargaining agreement expired on March 3, 1964 but was
renewed the following day, March 4, 1964.
Under Section 4(a), paragraph 4, of Republic Act No. 875, prior to its
amendment by Republic Act No. 3350, the employer was not precluded
"from making an agreement with a labor organization to require as a
condition of employment membership therein, if such labor organization is
the representative of the employees." On June 18, 1961, however, Republic
Act No. 3350 was enacted, introducing an amendment to — paragraph (4)
subsection (a) of section 4 of Republic Act No. 875, as follows: ... "but such
agreement shall not cover members of any religious sects which prohibit
affiliation of their members in any such labor organization".
Being a member of a religious sect that prohibits the affiliation of its
members with any labor organization, Appellee presented his resignation to
appellant Union in 1962, and when no action was taken thereon, he
reiterated his resignation on September 3, 1974. Thereupon, the Union
wrote a formal letter to the Company asking the latter to separate Appellee
from the service in view of the fact that he was resigning from the Union as
a member. The management of the Company in turn notified Appellee and
his counsel that unless the Appellee could achieve a satisfactory
arrangement with the Union, the Company would be constrained to dismiss
him from the service. This prompted Appellee to file an action for
injunction, docketed as Civil Case No. 58894 in the Court of First Instance
of Manila to enjoin the Company and the Union from dismissing
Appellee.1 In its answer, the Union invoked the "union security clause" of
the collective bargaining agreement; assailed the constitutionality of
Republic Act No. 3350; and contended that the Court had no jurisdiction
over the case, pursuant to Republic Act No. 875, Sections 24 and 9 (d) and
(e).2 Upon the facts agreed upon by the parties during the pre-trial
conference, the Court a quo rendered its decision on August 26, 1965, the
dispositive portion of which reads:
IN VIEW OF THE FOREGOING, judgment is
rendered enjoining the defendant Elizalde Rope
Factory, Inc. from dismissing the plaintiff from his
present employment and sentencing the defendant
Elizalde Rope Workers' Union to pay the plaintiff P500
for attorney's fees and the costs of this action.3
From this decision, the Union appealed directly to this Court on purely
questions of law, assigning the following errors:
Page 21 of 60 CONSTI2 EQUAL PROTECTION
I. That the lower court erred when it did not rule that
Republic Act No. 3350 is unconstitutional.
II. That the lower court erred when it sentenced
appellant herein to pay plaintiff the sum of P500 as
attorney's fees and the cost thereof.
In support of the alleged unconstitutionality of Republic Act No. 3350, the
Union contented, firstly, that the Act infringes on the fundamental right to
form lawful associations; that "the very phraseology of said Republic Act
3350, that membership in a labor organization is banned to all those
belonging to such religious sect prohibiting affiliation with any labor
organization"4 , "prohibits all the members of a given religious sect from
joining any labor union if such sect prohibits affiliations of their members
thereto"5 ; and, consequently, deprives said members of their constitutional
right to form or join lawful associations or organizations guaranteed by the
Bill of Rights, and thus becomes obnoxious to Article III, Section 1 (6) of
the 1935 Constitution. 6
Secondly, the Union contended that Republic Act No. 3350 is
unconstitutional for impairing the obligation of contracts in that, while the
Union is obliged to comply with its collective bargaining agreement
containing a "closed shop provision," the Act relieves the employer from its
reciprocal obligation of cooperating in the maintenance of union
membership as a condition of employment; and that said Act, furthermore,
impairs the Union's rights as it deprives the union of dues from members
who, under the Act, are relieved from the obligation to continue as such
members.7
Thirdly, the Union contended that Republic Act No. 3350 discriminatorily
favors those religious sects which ban their members from joining labor
unions, in violation of Article Ill, Section 1 (7) of the 1935 Constitution; and
while said Act unduly protects certain religious sects, it leaves no rights or
protection to labor organizations.8
Fourthly, Republic Act No. 3350, asserted the Union, violates the
constitutional provision that "no religious test shall be required for the
exercise of a civil right," in that the laborer's exercise of his civil right to
join associations for purposes not contrary to law has to be determined
under the Act by his affiliation with a religious sect; that conversely, if a
worker has to sever his religious connection with a sect that prohibits
membership in a labor organization in order to be able to join a labor
organization, said Act would violate religious freedom.9
Fifthly, the Union contended that Republic Act No. 3350, violates the
"equal protection of laws" clause of the Constitution, it being a
discriminately legislation, inasmuch as by exempting from the operation of
closed shop agreement the members of the "Iglesia ni Cristo", it has granted
said members undue advantages over their fellow workers, for while the Act
exempts them from union obligation and liability, it nevertheless entitles
them at the same time to the enjoyment of all concessions, benefits and
other emoluments that the union might secure from the employer. 10
Sixthly, the Union contended that Republic Act No. 3350 violates the
constitutional provision regarding the promotion of social justice. 11
Appellant Union, furthermore, asserted that a "closed shop provision" in a
collective bargaining agreement cannot be considered violative of religious
freedom, as to call for the amendment introduced by Republic Act No.
3350; 12and that unless Republic Act No. 3350 is declared unconstitutional,
trade unionism in this country would be wiped out as employers would
prefer to hire or employ members of the Iglesia ni Cristo in order to do away
with labor organizations. 13
Appellee, assailing appellant's arguments, contended that Republic Act No.
3350 does not violate the right to form lawful associations, for the right to
join associations includes the right not to join or to resign from a labor
organization, if one's conscience does not allow his membership therein, and
the Act has given substance to such right by prohibiting the compulsion of
workers to join labor organizations; 14 that said Act does not impair the
obligation of contracts for said law formed part of, and was incorporated
into, the terms of the closed shop agreement; 15 that the Act does not violate
the establishment of religion clause or separation of Church and State, for
Congress, in enacting said law, merely accommodated the religious needs of
those workers whose religion prohibits its members from joining labor
unions, and balanced the collective rights of organized labor with the
constitutional right of an individual to freely exercise his chosen religion;
that the constitutional right to the free exercise of one's religion has primacy
and preference over union security measures which are merely
contractual 16; that said Act does not violate the constitutional provision of
equal protection, for the classification of workers under the Act depending
on their religious tenets is based on substantial distinction, is germane to the
purpose of the law, and applies to all the members of a given class; 17 that
said Act, finally, does not violate the social justice policy of the
Constitution, for said Act was enacted precisely to equalize employment
opportunities for all citizens in the midst of the diversities of their religious
beliefs." 18
I. Before We proceed to the discussion of the first assigned error, it is
necessary to premise that there are some thoroughly established principles
which must be followed in all cases where questions of constitutionality as
obtains in the instant case are involved. All presumptions are indulged in
favor of constitutionality; one who attacks a statute, alleging
unconstitutionality must prove its invalidity beyond a reasonable doubt, that
a law may work hardship does not render it unconstitutional; that if any
reasonable basis may be conceived which supports the statute, it will be
upheld, and the challenger must negate all possible bases; that the courts are
not concerned with the wisdom, justice, policy, or expediency of a statute;
and that a liberal interpretation of the constitution in favor of the
constitutionality of legislation should be adopted. 19
1. Appellant Union's contention that Republic Act No. 3350 prohibits and
bans the members of such religious sects that forbid affiliation of their
members with labor unions from joining labor unions appears nowhere in
the wording of Republic Act No. 3350; neither can the same be deduced by
necessary implication therefrom. It is not surprising, therefore, that
appellant, having thus misread the Act, committed the error of contending
that said Act is obnoxious to the constitutional provision on freedom of
association.
Both the Constitution and Republic Act No. 875 recognize freedom of
association. Section 1 (6) of Article III of the Constitution of 1935, as well
as Section 7 of Article IV of the Constitution of 1973, provide that the right
to form associations or societies for purposes not contrary to law shall not
be abridged. Section 3 of Republic Act No. 875 provides that employees
shall have the right to self-organization and to form, join of assist labor
organizations of their own choosing for the purpose of collective bargaining
and to engage in concerted activities for the purpose of collective bargaining
and other mutual aid or protection. What the Constitution and the Industrial
Peace Act recognize and guarantee is the "right" to form or join
associations. Notwithstanding the different theories propounded by the
different schools of jurisprudence regarding the nature and contents of a
"right", it can be safely said that whatever theory one subscribes to, a right
comprehends at least two broad notions, namely: first, liberty or freedom,
i.e., the absence of legal restraint, whereby an employee may act for himself
without being prevented by law; and second, power, whereby an employee
may, as he pleases, join or refrain from Joining an association. It is,
therefore, the employee who should decide for himself whether he should
join or not an association; and should he choose to join, he himself makes
up his mind as to which association he would join; and even after he has
joined, he still retains the liberty and the power to leave and cancel his
membership with said organization at any time. 20 It is clear, therefore, that
the right to join a union includes the right to abstain from joining any
union. 21 Inasmuch as what both the Constitution and the Industrial Peace
Act have recognized, and guaranteed to the employee, is the "right" to join
associations of his choice, it would be absurd to say that the law also
imposes, in the same breath, upon the employee the duty to join
associations. The law does not enjoin an employee to sign up with any
association.
The right to refrain from joining labor organizations recognized by Section
3 of the Industrial Peace Act is, however, limited. The legal protection
granted to such right to refrain from joining is withdrawn by operation of
law, where a labor union and an employer have agreed on a closed shop, by
virtue of which the employer may employ only member of the collective
bargaining union, and the employees must continue to be members of the
union for the duration of the contract in order to keep their jobs. Thus
Section 4 (a) (4) of the Industrial Peace Act, before its amendment by
Republic Act No. 3350, provides that although it would be an unfair labor
practice for an employer "to discriminate in regard to hire or tenure of
employment or any term or condition of employment to encourage or
discourage membership in any labor organization" the employer is,
however, not precluded "from making an agreement with a labor
organization to require as a condition of employment membership therein, if
such labor organization is the representative of the employees". By virtue,
therefore, of a closed shop agreement, before the enactment of Republic Act
No. 3350, if any person, regardless of his religious beliefs, wishes to be
employed or to keep his employment, he must become a member of the
collective bargaining union. Hence, the right of said employee not to join
the labor union is curtailed and withdrawn.
To that all-embracing coverage of the closed shop arrangement, Republic
Act No. 3350 introduced an exception, when it added to Section 4 (a) (4) of
the Industrial Peace Act the following proviso: "but such agreement shall
not cover members of any religious sects which prohibit affiliation of their
members in any such labor organization". Republic Act No. 3350 merely
excludes ipso jure from the application and coverage of the closed shop
agreement the employees belonging to any religious sects which prohibit
affiliation of their members with any labor organization. What the exception
provides, therefore, is that members of said religious sects cannot be
compelled or coerced to join labor unions even when said unions have
closed shop agreements with the employers; that in spite of any closed shop
Page 22 of 60 CONSTI2 EQUAL PROTECTION
agreement, members of said religious sects cannot be refused employment
or dismissed from their jobs on the sole ground that they are not members of
the collective bargaining union. It is clear, therefore, that the assailed Act,
far from infringing the constitutional provision on freedom of association,
upholds and reinforces it. It does not prohibit the members of said religious
sects from affiliating with labor unions. It still leaves to said members the
liberty and the power to affiliate, or not to affiliate, with labor unions. If,
notwithstanding their religious beliefs, the members of said religious sects
prefer to sign up with the labor union, they can do so. If in deference and
fealty to their religious faith, they refuse to sign up, they can do so; the law
does not coerce them to join; neither does the law prohibit them from
joining; and neither may the employer or labor union compel them to join.
Republic Act No. 3350, therefore, does not violate the constitutional
provision on freedom of association.
2. Appellant Union also contends that the Act is unconstitutional for
impairing the obligation of its contract, specifically, the "union security
clause" embodied in its Collective Bargaining Agreement with the
Company, by virtue of which "membership in the union was required as a
condition for employment for all permanent employees workers". This
agreement was already in existence at the time Republic Act No. 3350 was
enacted on June 18, 1961, and it cannot, therefore, be deemed to have been
incorporated into the agreement. But by reason of this amendment,
Appellee, as well as others similarly situated, could no longer be dismissed
from his job even if he should cease to be a member, or disaffiliate from the
Union, and the Company could continue employing him notwithstanding his
disaffiliation from the Union. The Act, therefore, introduced a change into
the express terms of the union security clause; the Company was partly
absolved by law from the contractual obligation it had with the Union of
employing only Union members in permanent positions, It cannot be
denied, therefore, that there was indeed an impairment of said union security
clause.
According to Black, any statute which introduces a change into the express
terms of the contract, or its legal construction, or its validity, or its
discharge, or the remedy for its enforcement, impairs the contract. The
extent of the change is not material. It is not a question of degree or manner
or cause, but of encroaching in any respect on its obligation or dispensing
with any part of its force. There is an impairment of the contract if either
party is absolved by law from its performance. 22 Impairment has also been
predicated on laws which, without destroying contracts, derogate from
substantial contractual rights. 23
It should not be overlooked, however, that the prohibition to impair the
obligation of contracts is not absolute and unqualified. The prohibition is
general, affording a broad outline and requiring construction to fill in the
details. The prohibition is not to be read with literal exactness like a
mathematical formula, for it prohibits unreasonable impairment only. 24 In
spite of the constitutional prohibition, the State continues to possess
authority to safeguard the vital interests of its people. Legislation
appropriate to safeguarding said interests may modify or abrogate contracts
already in effect. 25 For not only are existing laws read into contracts in
order to fix the obligations as between the parties, but the reservation of
essential attributes of sovereign power is also read into contracts as a
postulate of the legal order. All contracts made with reference to any matter
that is subject to regulation under the police power must be understood as
made in reference to the possible exercise of that power. 26 Otherwise,
important and valuable reforms may be precluded by the simple device of
entering into contracts for the purpose of doing that which otherwise may be
prohibited. The policy of protecting contracts against impairment
presupposes the maintenance of a government by virtue of which
contractual relations are worthwhile a government which retains adequate
authority to secure the peace and good order of society. The contract clause
of the Constitution must, therefore, be not only in harmony with, but also in
subordination to, in appropriate instances, the reserved power of the state to
safeguard the vital interests of the people. It follows that not all legislations,
which have the effect of impairing a contract, are obnoxious to the
constitutional prohibition as to impairment, and a statute passed in the
legitimate exercise of police power, although it incidentally destroys
existing contract rights, must be upheld by the courts. This has special
application to contracts regulating relations between capital and labor which
are not merely contractual, and said labor contracts, for being impressed
with public interest, must yield to the common good. 27
In several occasions this Court declared that the prohibition against
impairing the obligations of contracts has no application to statutes relating
to public subjects within the domain of the general legislative powers of the
state involving public welfare. 28 Thus, this Court also held that the Blue
Sunday Law was not an infringement of the obligation of a contract that
required the employer to furnish work on Sundays to his employees, the law
having been enacted to secure the well-being and happiness of the laboring
class, and being, furthermore, a legitimate exercise of the police power. 29
In order to determine whether legislation unconstitutionally impairs contract
obligations, no unchanging yardstick, applicable at all times and under all
circumstances, by which the validity of each statute may be measured or
determined, has been fashioned, but every case must be determined upon its
own circumstances. Legislation impairing the obligation of contracts can be
sustained when it is enacted for the promotion of the general good of the
people, and when the means adopted to secure that end are reasonable. Both
the end sought and the means adopted must be legitimate, i.e., within the
scope of the reserved power of the state construed in harmony with the
constitutional limitation of that power. 30
What then was the purpose sought to be achieved by Republic Act No.
3350? Its purpose was to insure freedom of belief and religion, and to
promote the general welfare by preventing discrimination against those
members of religious sects which prohibit their members from joining labor
unions, confirming thereby their natural, statutory and constitutional right to
work, the fruits of which work are usually the only means whereby they can
maintain their own life and the life of their dependents. It cannot be gainsaid
that said purpose is legitimate.
The questioned Act also provides protection to members of said religious
sects against two aggregates of group strength from which the individual
needs protection. The individual employee, at various times in his working
life, is confronted by two aggregates of power — collective labor, directed
by a union, and collective capital, directed by management. The union, an
institution developed to organize labor into a collective force and thus
protect the individual employee from the power of collective capital, is,
paradoxically, both the champion of employee rights, and a new source of
their frustration. Moreover, when the Union interacts with management, it
produces yet a third aggregate of group strength from which the individual
also needs protection — the collective bargaining relationship. 31
The aforementioned purpose of the amendatory law is clearly seen in the
Explanatory Note to House Bill No. 5859, which later became Republic Act
No. 3350, as follows:
It would be unthinkable indeed to refuse employing a
person who, on account of his religious beliefs and
convictions, cannot accept membership in a labor
organization although he possesses all the
qualifications for the job. This is tantamount to
punishing such person for believing in a doctrine he
has a right under the law to believe in. The law would
not allow discrimination to flourish to the detriment of
those whose religion discards membership in any labor
organization. Likewise, the law would not commend
the deprivation of their right to work and pursue a
modest means of livelihood, without in any manner
violating their religious faith and/or belief. 32
It cannot be denied, furthermore, that the means adopted by the Act to
achieve that purpose — exempting the members of said religious sects from
coverage of union security agreements — is reasonable.
It may not be amiss to point out here that the free exercise of religious
profession or belief is superior to contract rights. In case of conflict, the
latter must, therefore, yield to the former. The Supreme Court of the United
States has also declared on several occasions that the rights in the First
Amendment, which include freedom of religion, enjoy a preferred position
in the constitutional system. 33 Religious freedom, although not unlimited, is
a fundamental personal right and liberty, 34 and has a preferred position in
the hierarchy of values. Contractual rights, therefore, must yield to freedom
of religion. It is only where unavoidably necessary to prevent an immediate
and grave danger to the security and welfare of the community that
infringement of religious freedom may be justified, and only to the smallest
extent necessary to avoid the danger.
3. In further support of its contention that Republic Act No. 3350 is
unconstitutional, appellant Union averred that said Act discriminates in
favor of members of said religious sects in violation of Section 1 (7) of
Article Ill of the 1935 Constitution, and which is now Section 8 of Article
IV of the 1973 Constitution, which provides:
No law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof, and
the free exercise and enjoyment of religious profession
and worship, without discrimination and preference,
shall forever be allowed. No religious test shall be
required for the exercise of civil or political rights.
The constitutional provision into only prohibits legislation for the support of
any religious tenets or the modes of worship of any sect, thus forestalling
compulsion by law of the acceptance of any creed or the practice of any
form of worship, 35 but also assures the free exercise of one's chosen form of
religion within limits of utmost amplitude. It has been said that the religion
clauses of the Constitution are all designed to protect the broadest possible
liberty of conscience, to allow each man to believe as his conscience directs,
to profess his beliefs, and to live as he believes he ought to live, consistent
with the liberty of others and with the common good. 36 Any legislation
Page 23 of 60 CONSTI2 EQUAL PROTECTION
whose effect or purpose is to impede the observance of one or all religions,
or to discriminate invidiously between the religions, is invalid, even though
the burden may be characterized as being only indirect. 37 But if the stage
regulates conduct by enacting, within its power, a general law which has for
its purpose and effect to advance the state's secular goals, the statute is valid
despite its indirect burden on religious observance, unless the state can
accomplish its purpose without imposing such burden. 38
In Aglipay v. Ruiz 39 , this Court had occasion to state that the government
should not be precluded from pursuing valid objectives secular in character
even if the incidental result would be favorable to a religion or sect. It has
likewise been held that the statute, in order to withstand the strictures of
constitutional prohibition, must have a secular legislative purpose and a
primary effect that neither advances nor inhibits religion. 40 Assessed by
these criteria, Republic Act No. 3350 cannot be said to violate the
constitutional inhibition of the "no-establishment" (of religion) clause of the
Constitution.
The purpose of Republic Act No. 3350 is secular, worldly, and temporal,
not spiritual or religious or holy and eternal. It was intended to serve the
secular purpose of advancing the constitutional right to the free exercise of
religion, by averting that certain persons be refused work, or be dismissed
from work, or be dispossessed of their right to work and of being impeded
to pursue a modest means of livelihood, by reason of union security
agreements. To help its citizens to find gainful employment whereby they
can make a living to support themselves and their families is a valid
objective of the state. In fact, the state is enjoined, in the 1935 Constitution,
to afford protection to labor, and regulate the relations between labor and
capital and industry. 41 More so now in the 1973 Constitution where it is
mandated that "the State shall afford protection to labor, promote full
employment and equality in employment, ensure equal work opportunities
regardless of sex, race or creed and regulate the relation between workers
and employers. 42
The primary effects of the exemption from closed shop agreements in favor
of members of religious sects that prohibit their members from affiliating
with a labor organization, is the protection of said employees against the
aggregate force of the collective bargaining agreement, and relieving certain
citizens of a burden on their religious beliefs; and by eliminating to a certain
extent economic insecurity due to unemployment, which is a serious menace
to the health, morals, and welfare of the people of the State, the Act also
promotes the well-being of society. It is our view that the exemption from
the effects of closed shop agreement does not directly advance, or diminish,
the interests of any particular religion. Although the exemption may benefit
those who are members of religious sects that prohibit their members from
joining labor unions, the benefit upon the religious sects is merely incidental
and indirect. The "establishment clause" (of religion) does not ban
regulation on conduct whose reason or effect merely happens to coincide or
harmonize with the tenets of some or all religions. 43 The free exercise
clause of the Constitution has been interpreted to require that religious
exercise be preferentially aided. 44
We believe that in enacting Republic Act No. 3350, Congress acted
consistently with the spirit of the constitutional provision. It acted merely to
relieve the exercise of religion, by certain persons, of a burden that is
imposed by union security agreements. It was Congress itself that imposed
that burden when it enacted the Industrial Peace Act (Republic Act 875),
and, certainly, Congress, if it so deems advisable, could take away the same
burden. It is certain that not every conscience can be accommodated by all
the laws of the land; but when general laws conflict with scrupples of
conscience, exemptions ought to be granted unless some "compelling state
interest" intervenes. 45 In the instant case, We see no such compelling state
interest to withhold exemption.
Appellant bewails that while Republic Act No. 3350 protects members of
certain religious sects, it leaves no right to, and is silent as to the protection
of, labor organizations. The purpose of Republic Act No. 3350 was not to
grant rights to labor unions. The rights of labor unions are amply provided
for in Republic Act No. 875 and the new Labor Code. As to the lamented
silence of the Act regarding the rights and protection of labor unions, suffice
it to say, first, that the validity of a statute is determined by its provisions,
not by its silence 46 ; and, second, the fact that the law may work hardship
does not render it unconstitutional. 47
It would not be amiss to state, regarding this matter, that to compel persons
to join and remain members of a union to keep their jobs in violation of their
religious scrupples, would hurt, rather than help, labor unions, Congress has
seen it fit to exempt religious objectors lest their resistance spread to other
workers, for religious objections have contagious potentialities more than
political and philosophic objections.
Furthermore, let it be noted that coerced unity and loyalty even to the
country, and a fortiori to a labor — union assuming that such unity and
loyalty can be attained through coercion — is not a goal that is
constitutionally obtainable at the expense of religious liberty. 48 A desirable
end cannot be promoted by prohibited means.
4. Appellants' fourth contention, that Republic Act No. 3350 violates the
constitutional prohibition against requiring a religious test for the exercise
of a civil right or a political right, is not well taken. The Act does not require
as a qualification, or condition, for joining any lawful association
membership in any particular religion or in any religious sect; neither does
the Act require affiliation with a religious sect that prohibits its members
from joining a labor union as a condition or qualification for withdrawing
from a labor union. Joining or withdrawing from a labor union requires a
positive act. Republic Act No. 3350 only exempts members with such
religious affiliation from the coverage of closed shop agreements. So, under
this Act, a religious objector is not required to do a positive act — to
exercise the right to join or to resign from the union. He is exempted ipso
jure without need of any positive act on his part. A conscientious religious
objector need not perform a positive act or exercise the right of resigning
from the labor union — he is exempted from the coverage of any closed
shop agreement that a labor union may have entered into. How then can
there be a religious test required for the exercise of a right when no right
need be exercised?
We have said that it was within the police power of the State to enact
Republic Act No. 3350, and that its purpose was legal and in consonance
with the Constitution. It is never an illegal evasion of a constitutional
provision or prohibition to accomplish a desired result, which is lawful in
itself, by discovering or following a legal way to do it. 49
5. Appellant avers as its fifth ground that Republic Act No. 3350 is a
discriminatory legislation, inasmuch as it grants to the members of certain
religious sects undue advantages over other workers, thus violating Section
1 of Article III of the 1935 Constitution which forbids the denial to any
person of the equal protection of the laws. 50
The guaranty of equal protection of the laws is not a guaranty of equality in
the application of the laws upon all citizens of the state. It is not, therefore, a
requirement, in order to avoid the constitutional prohibition against
inequality, that every man, woman and child should be affected alike by a
statute. Equality of operation of statutes does not mean indiscriminate
operation on persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not identity of
rights. The Constitution does not require that things which are different in
fact be treated in law as though they were the same. The equal protection
clause does not forbid discrimination as to things that are different. 51 It does
not prohibit legislation which is limited either in the object to which it is
directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or practice
because they agree with one another in certain particulars. A law is not
invalid because of simple inequality. 52 The very idea of classification is that
of inequality, so that it goes without saying that the mere fact of inequality
in no manner determines the matter of constitutionality. 53 All that is
required of a valid classification is that it be reasonable, which means that
the classification should be based on substantial distinctions which make for
real differences; that it must be germane to the purpose of the law; that it
must not be limited to existing conditions only; and that it must apply
equally to each member of the class. 54 This Court has held that the standard
is satisfied if the classification or distinction is based on a reasonable
foundation or rational basis and is not palpably arbitrary. 55
In the exercise of its power to make classifications for the purpose of
enacting laws over matters within its jurisdiction, the state is recognized as
enjoying a wide range of discretion. 56 It is not necessary that the
classification be based on scientific or marked differences of things or in
their relation. 57 Neither is it necessary that the classification be made with
mathematical nicety. 58 Hence legislative classification may in many cases
properly rest on narrow distinctions, 59 for the equal protection guaranty
does not preclude the legislature from recognizing degrees of evil or harm,
and legislation is addressed to evils as they may appear.
We believe that Republic Act No. 3350 satisfies the aforementioned
requirements. The Act classifies employees and workers, as to the effect and
coverage of union shop security agreements, into those who by reason of
their religious beliefs and convictions cannot sign up with a labor union, and
those whose religion does not prohibit membership in labor unions. Tile
classification rests on real or substantial, not merely imaginary or
whimsical, distinctions. There is such real distinction in the beliefs, feelings
and sentiments of employees. Employees do not believe in the same
religious faith and different religions differ in their dogmas and cannons.
Religious beliefs, manifestations and practices, though they are found in all
places, and in all times, take so many varied forms as to be almost beyond
imagination. There are many views that comprise the broad spectrum of
religious beliefs among the people. There are diverse manners in which
beliefs, equally paramount in the lives of their possessors, may be
articulated. Today the country is far more heterogenous in religion than
before, differences in religion do exist, and these differences are important
and should not be ignored.
Page 24 of 60 CONSTI2 EQUAL PROTECTION
Even from the phychological point of view, the classification is based on
real and important differences. Religious beliefs are not mere beliefs, mere
ideas existing only in the mind, for they carry with them practical
consequences and are the motives of certain rules. of human conduct and the
justification of certain acts. 60 Religious sentiment makes a man view things
and events in their relation to his God. It gives to human life its distinctive
character, its tone, its happiness or unhappiness its enjoyment or
irksomeness. Usually, a strong and passionate desire is involved in a
religious belief. To certain persons, no single factor of their experience is
more important to them than their religion, or their not having any religion.
Because of differences in religious belief and sentiments, a very poor person
may consider himself better than the rich, and the man who even lacks the
necessities of life may be more cheerful than the one who has all possible
luxuries. Due to their religious beliefs people, like the martyrs, became
resigned to the inevitable and accepted cheerfully even the most painful and
excruciating pains. Because of differences in religious beliefs, the world has
witnessed turmoil, civil strife, persecution, hatred, bloodshed and war,
generated to a large extent by members of sects who were intolerant of other
religious beliefs. The classification, introduced by Republic Act No. 3350,
therefore, rests on substantial distinctions.
The classification introduced by said Act is also germane to its purpose. The
purpose of the law is precisely to avoid those who cannot, because of their
religious belief, join labor unions, from being deprived of their right to work
and from being dismissed from their work because of union shop security
agreements.
Republic Act No. 3350, furthermore, is not limited in its application to
conditions existing at the time of its enactment. The law does not provide
that it is to be effective for a certain period of time only. It is intended to
apply for all times as long as the conditions to which the law is applicable
exist. As long as there are closed shop agreements between an employer and
a labor union, and there are employees who are prohibited by their religion
from affiliating with labor unions, their exemption from the coverage of said
agreements continues.
Finally, the Act applies equally to all members of said religious sects; this is
evident from its provision. The fact that the law grants a privilege to
members of said religious sects cannot by itself render the Act
unconstitutional, for as We have adverted to, the Act only restores to them
their freedom of association which closed shop agreements have taken
away, and puts them in the same plane as the other workers who are not
prohibited by their religion from joining labor unions. The circumstance,
that the other employees, because they are differently situated, are not
granted the same privilege, does not render the law unconstitutional, for
every classification allowed by the Constitution by its nature involves
inequality.
The mere fact that the legislative classification may result in actual
inequality is not violative of the right to equal protection, for every
classification of persons or things for regulation by law produces inequality
in some degree, but the law is not thereby rendered invalid. A classification
otherwise reasonable does not offend the constitution simply because in
practice it results in some inequality. 61 Anent this matter, it has been said
that whenever it is apparent from the scope of the law that its object is for
the benefit of the public and the means by which the benefit is to be
obtained are of public character, the law will be upheld even though
incidental advantage may occur to individuals beyond those enjoyed by the
general public. 62
6. Appellant's further contention that Republic Act No. 3350 violates the
constitutional provision on social justice is also baseless. Social justice is
intended to promote the welfare of all the people. 63 Republic Act No. 3350
promotes that welfare insofar as it looks after the welfare of those who,
because of their religious belief, cannot join labor unions; the Act prevents
their being deprived of work and of the means of livelihood. In determining
whether any particular measure is for public advantage, it is not necessary
that the entire state be directly benefited — it is sufficient that a portion of
the state be benefited thereby.
Social justice also means the adoption by the Government of measures
calculated to insure economic stability of all component elements of society,
through the maintenance of a proper economic and social equilibrium in the
inter-relations of the members of the community. 64 Republic Act No. 3350
insures economic stability to the members of a religious sect, like the Iglesia
ni Cristo, who are also component elements of society, for it insures security
in their employment, notwithstanding their failure to join a labor union
having a closed shop agreement with the employer. The Act also advances
the proper economic and social equilibrium between labor unions and
employees who cannot join labor unions, for it exempts the latter from the
compelling necessity of joining labor unions that have closed shop
agreements and equalizes, in so far as opportunity to work is concerned,
those whose religion prohibits membership in labor unions with those
whose religion does not prohibit said membership. Social justice does not
imply social equality, because social inequality will always exist as long as
social relations depend on personal or subjective proclivities. Social justice
does not require legal equality because legal equality, being a relative term, Costs according to Section 1, Rule 142, of the Rules of Court, shall be
is necessarily premised on differentiations based on personal or natural allowed as a matter of course to the prevailing party.
conditions. 65 Social justice guarantees equality of opportunity 66 , and this is
precisely what Republic Act No. 3350 proposes to accomplish — it gives
WHEREFORE, the instant appeal is dismissed, and the decision, dated
laborers, irrespective of their religious scrupples, equal opportunity for August 26, 1965, of the Court of First Instance of Manila, in its Civil Case
work. No. 58894, appealed from is affirmed, with costs against appellant Union. It
is so ordered.
7. As its last ground, appellant contends that the amendment introduced by
Republic Act No. 3350 is not called for — in other words, the Act is not Makalintal, C.J, Castro, Teehankee, Barredo, Makasiar, Antonio, Esguerra,
proper, necessary or desirable. Anent this matter, it has been held that a Muñoz Palma and Aquino, JJ., concur.
statute which is not necessary is not, for that reason, unconstitutional; that in
determining the constitutional validity of legislation, the courts are
unconcerned with issues as to the necessity for the enactment of the
legislation in question. 67 Courts do inquire into the wisdom of
laws. 68 Moreover, legislatures, being chosen by the people, are presumed to
understand and correctly appreciate the needs of the people, and it may
change the laws accordingly. 69 The fear is entertained by appellant that
unless the Act is declared unconstitutional, employers will prefer employing
members of religious sects that prohibit their members from joining labor
unions, and thus be a fatal blow to unionism. We do not agree. The threat to
unionism will depend on the number of employees who are members of the
religious sects that control the demands of the labor market. But there is
really no occasion now to go further and anticipate problems We cannot
judge with the material now before Us. At any rate, the validity of a statute
is to be determined from its general purpose and its efficacy to accomplish
the end desired, not from its effects on a particular case. 70 The essential
basis for the exercise of power, and not a mere incidental result arising from
its exertion, is the criterion by which the validity of a statute is to be
measured. 71

II. We now pass on the second assignment of error, in support of which the
Union argued that the decision of the trial court ordering the Union to pay
P500 for attorney's fees directly contravenes Section 24 of Republic Act No.
875, for the instant action involves an industrial dispute wherein the Union
was a party, and said Union merely acted in the exercise of its rights under
the union shop provision of its existing collective bargaining contract with
the Company; that said order also contravenes Article 2208 of the Civil
Code; that, furthermore, Appellee was never actually dismissed by the
defendant Company and did not therefore suffer any damage at all . 72

In refuting appellant Union's arguments, Appellee claimed that in the instant

case there was really no industrial dispute involved in the attempt to compel
Appellee to maintain its membership in the union under pain of dismissal,
and that the Union, by its act, inflicted intentional harm on Appellee; that
since Appellee was compelled to institute an action to protect his right to
work, appellant could legally be ordered to pay attorney's fees under
Articles 1704 and 2208 of the Civil Code. 73

The second paragraph of Section 24 of Republic Act No. 875 which is relied
upon by appellant provides that:

No suit, action or other proceedings shall be

maintainable in any court against a labor organization
or any officer or member thereof for any act done by or
on behalf of such organization in furtherance of an
industrial dispute to which it is a party, on the ground
only that such act induces some other person to break a
contract of employment or that it is in restraint of trade
or interferes with the trade, business or employment of
some other person or with the right of some other
person to dispose of his capital or labor. (Emphasis
supplied)

That there was a labor dispute in the instant case cannot be disputed for
appellant sought the discharge of respondent by virtue of the closed shop
agreement and under Section 2 (j) of Republic Act No. 875 a question
involving tenure of employment is included in the term "labor
dispute". 74 The discharge or the act of seeking it is the labor dispute itself. It
being the labor dispute itself, that very same act of the Union in asking the
employer to dismiss Appellee cannot be "an act done ... in furtherance of an
industrial dispute". The mere fact that appellant is a labor union does not
necessarily mean that all its acts are in furtherance of an industrial
dispute. 75 Appellant Union, therefore, cannot invoke in its favor Section 24
of Republic Act No. 875. This case is not intertwined with any unfair labor
practice case existing at the time when Appellee filed his complaint before
the lower court.

Neither does Article 2208 of the Civil Code, invoked by the Union, serve as
its shield. The article provides that attorney's fees and expenses of litigation
may be awarded "when the defendant's act or omission has compelled the
plaintiff ... to incur expenses to protect his interest"; and "in any other case
where the court deems it just and equitable that attorney's fees and expenses
of litigation should be recovered". In the instant case, it cannot be gainsaid
that appellant Union's act in demanding Appellee's dismissal caused
Appellee to incur expenses to prevent his being dismissed from his job.

Page 25 of 60 CONSTI2 EQUAL PROTECTION

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-52245 January 22, 1980
PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO
SALAPANTAN, JR., petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
Raul M. Gonzales for petitioners
Office of the Solicitor General for respondent.
MELENCIO-HERRERA, J:
This is a Petition for Prohibition with Preliminary Injunction and/or
Restraining Order filed by petitioners, in their own behalf and all others
allegedly similarly situated, seeking to enjoin respondent Commission on
Elections (COMELEC) from implementing certain provisions of Batas
Pambansa Big. 51, 52, and 53 for being unconstitutional.
The Petition alleges that petitioner, Patricio Dumlao, is a former Governor
of Nueva Vizcaya, who has filed his certificate of candidacy for said
position of Governor in the forthcoming elections of January 30, 1980.
Petitioner, Romeo B. Igot, is a taxpayer, a qualified voter and a member of
the Bar who, as such, has taken his oath to support the Constitution and
obey the laws of the land. Petitioner, Alfredo Salapantan, Jr., is also a
taxpayer, a qualified voter, and a resident of San Miguel, Iloilo.
Petitioner Dumlao specifically questions the constitutionality of section 4 of
Batas Pambansa Blg. 52 as discriminatory and contrary to the equal
protection and due process guarantees of the Constitution. Said Section 4
provides:
Sec. 4. Special Disqualification in addition to violation
of section 10 of Art. XI I-C of the Constitution and
disqualification mentioned in existing laws, which are
hereby declared as disqualification for any of the
elective officials enumerated in section 1 hereof.
Any retired elective provincial city or municipal
official who has received payment of the retirement
benefits to which he is entitled under the law, and who
shall have been 6,5 years of age at the commencement
of the term of office to which he seeks to be elected
shall not be qualified to run for the same elective local
office from which he has retired (Emphasis supplied)
Petitioner Dumlao alleges that the aforecited provision is directed
insidiously against him, and that the classification provided therein is based
on "purely arbitrary grounds and, therefore, class legislation."
For their part, petitioners igot and Salapantan, Jr. assail the validity of the
following statutory provisions:
Sec 7. Terms of Office — Unless sooner removed for
cause, all local elective officials hereinabove
mentioned shall hold office for a term of six (6) years,
which shall commence on the first Monday of March
1980.
.... (Batas Pambansa Blg. 51) Sec. 4.
Sec. 4. ...
Any person who has committed any act of disloyalty to
the State, including acts amounting to subversion,
insurrection, rebellion or other similar crimes, shall not
be qualified to be a candidate for any of the offices
covered by this Act, or to participate in any partisan
political activity therein:
provided that a judgment of conviction for any of the
aforementioned crimes shall be conclusive evidence of
such fact and
Page 26 of 60 CONSTI2 EQUAL PROTECTION
the filing of charges for the commission of such crimes
before a civil court or military tribunal after
preliminary investigation shall be prima fascie
evidence of such fact.
... (Batas Pambansa Big. 52) (Paragraphing and
Emphasis supplied).
Section 1. Election of certain Local Officials — ... The
election shall be held on January 30, 1980. (Batas
Pambansa, Blg. 52)
Section 6. Election and Campaign Period — The
election period shall be fixed by the Commission on
Elections in accordance with Section 6, Art. XII-C of
the Constitution. The period of campaign shall
commence on December 29, 1979 and terminate on
January 28, 1980. (ibid.)
In addition to the above-cited provisions, petitioners Igot and Salapantan, Jr.
also question the accreditation of some political parties by respondent
COMELEC, as authorized by Batas Pambansa Blg. 53, on the ground that it
is contrary to section 9(1)Art. XIIC of the Constitution, which provides that
a "bona fide candidate for any public office shall be it. from any form of
harassment and discrimination. "The question of accreditation will not be
taken up in this case but in that of Bacalso, et als. vs. COMELEC et als. No.
L-52232) where the issue has been squarely raised,
Petitioners then pray that the statutory provisions they have challenged be
declared null and void for being violative of the Constitution.
I . The procedural Aspect
At the outset, it should be stated that this Petition suffers from basic
procedural infirmities, hence, traditionally unacceptable for judicial
resolution. For one, there is a misjoinder of parties and actions. Petitioner
Dumlao's interest is alien to that of petitioners Igot and Salapantan
Petitioner Dumlao does not join petitioners Igot and Salapantan in the
burden of their complaint, nor do the latter join Dumlao in his. The
respectively contest completely different statutory provisions. Petitioner
Dumlao has joined this suit in his individual capacity as a candidate. The
action of petitioners Igot and Salapantan is more in the nature of a taxpayer's
suit. Although petitioners plead nine constraints as the reason of their joint
Petition, it would have required only a modicum more of effort tor petitioner
Dumlao, on one hand said petitioners lgot and Salapantan, on the other, to
have filed separate suits, in the interest of orderly procedure.
For another, there are standards that have to be followed inthe exercise of
the function of judicial review, namely (1) the existence of an appropriate
case:, (2) an interest personal and substantial by the party raising the
constitutional question: (3) the plea that the function be exercised at the
earliest opportunity and (4) the necessity that the constiutional question be
passed upon in order to decide the case (People vs. Vera 65 Phil. 56 [1937]).
It may be conceded that the third requisite has been complied with, which is,
that the parties have raised the issue of constitutionality early enough in
their pleadings.
This Petition, however, has fallen far short of the other three criteria.
A. Actual case and controversy.
It is basic that the power of judicial review is limited to the determination of
actual cases and controversies.
Petitioner Dumlao assails the constitutionality of the first paragraph of
section 4 of Batas Pambansa Blg. 52, quoted earlier, as being contrary to the
equal protection clause guaranteed by the Constitution, and seeks to prohibit
respondent COMELEC from implementing said provision. Yet, Dumlao has
not been adversely affected by the application of that provision. No petition
seeking Dumlao's disqualification has been filed before the COMELEC.
There is no ruling of that constitutional body on the matter, which this Court
is being asked to review on Certiorari. His is a question posed in the
abstract, a hypothetical issue, and in effect, a petition for an advisory
opinion from this Court to be rendered without the benefit of a detailed
factual record Petitioner Dumlao's case is clearly within the primary
jurisdiction (see concurring Opinion of now Chief Justice Fernando in
Peralta vs. Comelec, 82 SCRA 30, 96 [1978]) of respondent COMELEC as
provided for in section 2, Art. XII-C, for the Constitution the pertinent
portion of which reads:
"Section 2. The Commission on Elections shall have the following power
and functions:
 1) xxx
2) Be the sole judge of all contests relating to the
elections, returns and qualifications of all members of
the National Assembly and elective provincial and city
officials. (Emphasis supplied)
The aforequoted provision must also be related to section 11 of Art. XII-C,
which provides:
Section 11. Any decision, order, or ruling of the
Commission may be brought to the Supreme Court on
certiorari by the aggrieved party within thirty days
from his receipt of a copy thereof.
B. Proper party.
The long-standing rule has been that "the person who impugns the validity
of a statute must have a personal and substantial interest in the case such
that he has sustained, or will sustain, direct injury as a result of its
enforcement" (People vs. Vera, supra).
In the case of petitioners Igot and Salapantan, it was only during the
hearing, not in their Petition, that Igot is said to be a candidate for
Councilor. Even then, it cannot be denied that neither one has been
convicted nor charged with acts of disloyalty to the State, nor disqualified
from being candidates for local elective positions. Neither one of them has
been calle ed to have been adversely affected by the operation of the
statutory provisions they assail as unconstitutional Theirs is a generated
grievance. They have no personal nor substantial interest at stake. In the
absence of any litigate interest, they can claim no locus standi in seeking
judicial redress.
It is true that petitioners Igot and Salapantan have instituted this case as a
taxpayer's suit, and that the rule enunciated in People vs. Vera, above stated,
has been relaxed in Pascual vs. The Secretary of Public Works (110 Phil.
331 [1960], thus:
... it is well settled that the validity of a statute may be
contested only by one who will sustain a direct injury
in consequence of its enforcement. Yet, there are many
decisions nullifying at the instance of taxpayers, laws
providing for the disbursement of public funds, upon
the theory that "the expenditure of public funds, by an
officer of the State for the purpose of administering an
unconstitutional act constitutes a misapplication of
such funds," which may be enjoined at the request of a
taxpayer.
In the same vein, it has been held:
In the determination of the degree of interest essential
to give the requisite standing to attack the
constitutionality of a statute, the general rule is that not
only persons individually affected, but also taxpayers
have sufficient interest in preventing the illegal
expenditure of moneys raised by taxation and they
may, therefore, question the constitutionality of
statutes requiring expenditure of public moneys.
(Philippine Constitution Association, Inc., et als., vs.
Gimenez, et als., 15 SCRA 479 [1965]).
However, the statutory provisions questioned in this case, namely, sec. 7,
BP Blg. 51, and sections 4, 1, and 6 BP Blg. 52, do not directly involve the
disbursement of public funds. While, concededly, the elections to be held
involve the expenditure of public moneys, nowhere in their Petition do said
petitioners allege that their tax money is "being extracted and spent in
violation of specific constitutional protections against abuses of legislative
power" (Flast v. Cohen, 392 U.S., 83 [1960]), or that there is a
misapplication of such funds by respondent COMELEC (see Pascual vs.
Secretary of Public Works, 110 Phil. 331 [1960]), or that public money is
being deflected to any improper purpose. Neither do petitioners seek to
restrain respondent from wasting public funds through the enforcement of
an invalid or unconstitutional law. (Philippine Constitution Association vs.
Mathay, 18 SCRA 300 [1966]), citingPhilippine Constitution Association
vs. Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a taxpayer's
suit, per se is no assurance of judicial review. As held by this Court in Tan
vs. Macapagal (43 SCRA 677 [1972]), speaking through our present Chief
Justice, this Court is vested with discretion as to whether or not a taxpayer's
suit should be entertained.
C. Unavoidability of constitutional question.
Page 27 of 60 CONSTI2 EQUAL PROTECTION
Again upon the authority of People vs. Vera, "it is a wellsettled rule that the
constitutionality of an act of the legislature will not be determined by the
courts unless that question is properly raised and presented in appropriate
cases and is necessary to a determination of the case; i.e., the issue of
constitutionality must be the very lis mota presented."
We have already stated that, by the standards set forth in People vs.
Vera, the present is not an "appropriate case" for either petitioner Dumlao or
for petitioners Igot and Salapantan. They are actually without cause of
action. It follows that the necessity for resolving the issue of
constitutionality is absent, and procedural regularity would require that this
suit be dismissed.
II. The substantive viewpoint.
We have resolved, however, to rule squarely on two of the challenged
provisions, the Courts not being entirely without discretion in the matter.
Thus, adherence to the strict procedural standard was relaxed in Tinio vs.
Mina (26 SCRA 512 [1968]); Edu vs. Ericta (35 SCRA 481 [1970]); and
in Gonzalez vs. Comelec (27 SCRA 835 [1969]), the Opinion in the Tinio
and Gonzalez cases having been penned by our present Chief Justice. The
reasons which have impelled us are the paramount public interest involved
and the proximity of the elections which will be held only a few days hence.
Petitioner Dumlao's contention that section 4 of BP Blg. 52 is
discriminatory against him personally is belied by the fact that several
petitions for the disqualification of other candidates for local positions based
on the challenged provision have already been filed with the COMELEC (as
listed in p. 15, respondent's Comment). This tellingly overthrows Dumlao's
contention of intentional or purposeful discrimination.
The assertion that Section 4 of BP Blg. 52 is contrary to the safer guard of
equal protection is neither well taken. The constitutional guarantee of equal
protection of the laws is subject to rational classification. If the groupings
are based on reasonable and real differentiations, one class can be treated
and regulated differently from another class. For purposes of public service,
employees 65 years of age, have been validly classified differently from
younger employees. Employees attaining that age are subject to compulsory
retirement, while those of younger ages are not so compulsorily retirable.
In respect of election to provincial, city, or municipal positions, to require
that candidates should not be more than 65 years of age at the time they
assume office, if applicable to everyone, might or might not be a reasonable
classification although, as the Solicitor General has intimated, a good policy
of the law would be to promote the emergence of younger blood in our
political elective echelons. On the other hand, it might be that persons more
than 65 years old may also be good elective local officials.
Coming now to the case of retirees. Retirement from government service
may or may not be a reasonable disqualification for elective local officials.
For one thing, there can also be retirees from government service at ages,
say below 65. It may neither be reasonable to disqualify retirees, aged 65,
for a 65 year old retiree could be a good local official just like one, aged 65,
who is not a retiree.
But, in the case of a 65-year old elective local official, who has retired from
a provincial, city or municipal office, there is reason to disqualify him from
running for the same office from which he had retired, as provided for in the
challenged provision. The need for new blood assumes relevance. The
tiredness of the retiree for government work is present, and what is
emphatically significant is that the retired employee has already declared
himself tired and unavailable for the same government work, but, which, by
virtue of a change of mind, he would like to assume again. It is for this very
reason that inequality will neither result from the application of the
challenged provision. Just as that provision does not deny equal protection
neither does it permit of such denial (see People vs. Vera, 65 Phil. 56
[1933]). Persons similarly situated are sinlilarly treated.
In fine, it bears reiteration that the equal protection clause does not forbid all
legal classification. What is proscribes is a classification which is arbitrary
and unreasonable. That constitutional guarantee is not violated by a
reasonable classification based upon substantial distinctions, where the
classification is germane to the purpose of the law and applies to all Chose
belonging to the same class (Peralta vs. Comelec, 82 SCRA 30 [1978] citing
Felwa vs. Salas, 18 SCRA 606 [1966]; Rafael v. Embroidery and Apparel
Control and Inspection Board, 21 SCRA 336 [1967]; Inchong etc., et al. vs.
Hernandez 101 Phil. 1155 [1957]). The purpose of the law is to allow the
emergence of younger blood in local governments. The classification in
question being pursuant to that purpose, it cannot be considered invalid
"even it at times, it may be susceptible to the objection that it is marred by
theoretical inconsistencies" (Chief Justice Fernando, The Constitution of the
Philippines, 1977 ed., p. 547).
There is an additional consideration. Absent herein is a showing of the clear
invalidity of the questioned provision. Well accepted is the rule that to
justify the nullification of a law, there must be a clear and unequivocal violative of the constitutional presumption of
breach of the Constitution, not a doubtful and equivocal breach. Courts are innocence guaranteed to an accused.
practically unanimous in the pronouncement that laws shall not be declared
invalid unless the conflict with the Constitution is clear beyond reasonable
SO ORDERED.
doubt (Peralta vs. COMELEC, 82 SCRA 55 [1978], citing Cooper vs.
Telfair 4 Dall 14; Dodd, Cases on Constitutional Law, 3rd ed. 1942, 56).
Lastly, it is within the compentence of the legislature to prescribe Makasiar, Antonio, Concepcion, Jr., Fernandez and Guerrero, JJ., concur.
qualifications for one who desires to become a candidate for office provided
they are reasonable, as in this case. Fernando, C.J., concurs and submits a brief separate opinion.

In so far as the petition of Igot and Salapantan are concerned, the second De Castro, J., abstain as far as petitioner Dumlao is concerned.
paragraph of section 4 of Batas Pambansa Blg. 52, quoted in full earlier, and
which they challenge, may be divided in two parts. The first provides:

a. judgment of conviction jor any of the

aforementioned crimes shall be conclusive evidence of
such fact ...

The supremacy of the Constitution stands out as the cardinal principle. We

are aware of the presumption of validity that attaches to a challenged statute,
of the well-settled principle that "all reasonable doubts should be resolved in
favor of constitutionality," and that Courts will not set aside a statute as
constitutionally defective "except in a clear case." (People vs. Vera, supra).
We are constrained to hold that this is one such clear case.

Explicit is the constitutional provision that, in all criminal prosecutions, the

accused shall be presumed innocent until the contrary is proved, and shall
enjoy the right to be heard by himself and counsel (Article IV, section 19,
1973 Constitution). An accusation, according to the fundamental law, is not
synonymous with guilt. The challenged proviso contravenes the
constitutional presumption of innocence, as a candidate is disqualified from
running for public office on the ground alone that charges have been filed
against him before a civil or military tribunal. It condemns before one is
fully heard. In ultimate effect, except as to the degree of proof, no
distinction is made between a person convicted of acts of dislotalty and one
against whom charges have been filed for such acts, as both of them would
be ineligible to run for public office. A person disqualified to run for public
office on the ground that charges have been filed against him is virtually
placed in the same category as a person already convicted of a crime with
the penalty of arresto, which carries with it the accessory penalty of
suspension of the right to hold office during the term of the sentence (Art.
44, Revised Penal Code).

And although the filing of charges is considered as but prima

facie evidence, and therefore, may be rebutted, yet. there is "clear and
present danger" that because of the proximity of the elections, time
constraints will prevent one charged with acts of disloyalty from offering
contrary proof to overcome the prima facie evidence against him.

Additionally, it is best that evidence pro and con of acts of disloyalty be

aired before the Courts rather than before an administrative body such as the
COMELEC. A highly possible conflict of findings between two government
bodies, to the extreme detriment of a person charged, will thereby be
avoided. Furthermore, a legislative/administrative determination of guilt
should not be allowed to be substituted for a judicial determination.

Being infected with constitutional infirmity, a partial declaration of nullity

of only that objectionable portion is mandated. It is separable from the first
portion of the second paragraph of section 4 of Batas Pambansa Big. 52
which can stand by itself.

WHEREFORE, 1) the first paragraph of section 4 of Batas pambansa Bilang

52 is hereby declared valid. Said paragraph reads:

SEC. 4. Special disqualification. — In addition to

violation of Section 10 of Article XII(C) of the
Constitution and disqualifications mentioned in
existing laws which are hereby declared as
disqualification for any of the elective officials
enumerated in Section 1 hereof, any retired elective
provincial, city or municipal official, who has received
payment of the retirement benefits to which he is
entitled under the law and who shall have been 65
years of age at the commencement of the term of office
to which he seeks to be elected, shall not be qualified
to run for the same elective local office from which he
has retired.

2) That portion of the second paragraph of section 4 of

Batas Pambansa Bilang 52 providing that "... the filing
of charges for the commission of such crimes before a
civil court or military tribunal after preliminary
investigation shall be prima facie evidence of such
fact", is hereby declared null and void, for being

Page 28 of 60 CONSTI2 EQUAL PROTECTION

Republic of the Philippines
SUPREME COURT
Baguio City
EN BANC
G.R. No. 190582 April 8, 2010
ANG LADLAD LGBT PARTY represented herein by its Chair,
DANTON REMOTO, Petitioner,
vs.
COMMISSION ON ELECTIONS Respondent.
DECISION
DEL CASTILLO, J.:
... [F]reedom to differ is not limited to things that do not matter much. That
would be a mere shadow of freedom. The test of its substance is the right to
differ as to things that touch the heart of the existing order.
Justice Robert A. Jackson
West Virginia State Board of Education v. Barnette 1
One unavoidable consequence of everyone having the freedom to choose is
that others may make different choices – choices we would not make for
ourselves, choices we may disapprove of, even choices that may shock or
offend or anger us. However, choices are not to be legally prohibited merely
because they are different, and the right to disagree and debate about
important questions of public policy is a core value protected by our Bill of
Rights. Indeed, our democracy is built on genuine recognition of, and
respect for, diversity and difference in opinion.
Since ancient times, society has grappled with deep disagreements about the
definitions and demands of morality. In many cases, where moral
convictions are concerned, harmony among those theoretically opposed is
an insurmountable goal. Yet herein lies the paradox – philosophical
justifications about what is moral are indispensable and yet at the same time
powerless to create agreement. This Court recognizes, however, that
practical solutions are preferable to ideological stalemates; accommodation
is better than intransigence; reason more worthy than rhetoric. This will
allow persons of diverse viewpoints to live together, if not harmoniously,
then, at least, civilly.
Factual Background
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an
application for a writ of preliminary mandatory injunction, filed by Ang
Ladlad LGBT Party (Ang Ladlad) against the Resolutions of the
Commission on Elections (COMELEC) dated November 11, 2009 2 (the
First Assailed Resolution) and December 16, 20093 (the Second Assailed
Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed
Resolutions). The case has its roots in the COMELEC’s refusal to
accredit Ang Ladlad as a party-list organization under Republic Act (RA)
No. 7941, otherwise known as the Party-List System Act.4
Ang Ladlad is an organization composed of men and women who identify
themselves as lesbians, gays, bisexuals, or trans-gendered individuals
(LGBTs). Incorporated in 2003, Ang Ladlad first applied for registration
with the COMELEC in 2006. The application for accreditation was denied
on the ground that the organization had no substantial membership base. On
August 17, 2009, Ang Ladlad again filed a Petition5 for registration with the
COMELEC.
Before the COMELEC, petitioner argued that the LGBT community is a
marginalized and under-represented sector that is particularly disadvantaged
because of their sexual orientation and gender identity; that LGBTs are
victims of exclusion, discrimination, and violence; that because of negative
societal attitudes, LGBTs are constrained to hide their sexual orientation;
and that Ang Ladlad complied with the 8-point guidelines enunciated by this
Court in Ang Bagong Bayani-OFW Labor Party v. Commission on
Elections.6 Ang Ladlad laid out its national membership base consisting of
individual members and organizational supporters, and outlined its platform
of governance.7
On November 11, 2009, after admitting the petitioner’s evidence, the
COMELEC (Second Division) dismissed the Petition on moral grounds,
stating that:
x x x This Petition is dismissible on moral grounds. Petitioner defines the
Filipino Lesbian, Gay, Bisexual and Transgender (LGBT) Community, thus:
Page 29 of 60 CONSTI2 EQUAL PROTECTION
x x x a marginalized and under-represented sector that is particularly
disadvantaged because of their sexual orientation and gender identity.
and proceeded to define sexual orientation as that which:
x x x refers to a person’s capacity for profound emotional, affectional and
sexual attraction to, and intimate and sexual relations with, individuals of a
different gender, of the same gender, or more than one gender."
This definition of the LGBT sector makes it crystal clear that petitioner
tolerates immorality which offends religious beliefs. In Romans 1:26, 27,
Paul wrote:
For this cause God gave them up into vile affections, for even their women
did change the natural use into that which is against nature: And likewise
also the men, leaving the natural use of the woman, burned in their lust one
toward another; men with men working that which is unseemly, and
receiving in themselves that recompense of their error which was meet.
In the Koran, the hereunder verses are pertinent:
For ye practice your lusts on men in preference to women "ye are indeed a
people transgressing beyond bounds." (7.81) "And we rained down on them
a shower (of brimstone): Then see what was the end of those who indulged
in sin and crime!" (7:84) "He said: "O my Lord! Help Thou me against
people who do mischief" (29:30).
As correctly pointed out by the Law Department in its Comment dated
October 2, 2008:
The ANG LADLAD apparently advocates sexual immorality as indicated in
the Petition’s par. 6F: ‘Consensual partnerships or relationships by gays and
lesbians who are already of age’. It is further indicated in par. 24 of the
Petition which waves for the record: ‘In 2007, Men Having Sex with Men or
MSMs in the Philippines were estimated as 670,000 (Genesis 19 is the
history of Sodom and Gomorrah).
Laws are deemed incorporated in every contract, permit, license,
relationship, or accreditation. Hence, pertinent provisions of the Civil Code
and the Revised Penal Code are deemed part of the requirement to be
complied with for accreditation.
ANG LADLAD collides with Article 695 of the Civil Code which defines
nuisance as ‘Any act, omission, establishment, business, condition of
property, or anything else which x x x (3) shocks, defies; or
disregards decency or morality x x x
It also collides with Article 1306 of the Civil Code: ‘The contracting parties
may establish such stipulations, clauses, terms and conditions as they may
deem convenient, provided they are not contrary to law, morals, good
customs, public order or public policy. Art 1409 of the Civil Code provides
that ‘Contracts whose cause, object or purpose is contrary to law, morals,
good customs, public order or public policy’ are inexistent and void from
the beginning.
Finally to safeguard the morality of the Filipino community, the Revised
Penal Code, as amended, penalizes ‘Immoral doctrines, obscene
publications and exhibitions and indecent shows’ as follows:
Art. 201. Immoral doctrines, obscene publications and exhibitions, and
indecent shows. — The penalty of prision mayor or a fine ranging from six
thousand to twelve thousand pesos, or both such imprisonment and fine,
shall be imposed upon:
1. Those who shall publicly expound or proclaim doctrines
openly contrary to public morals;
2. (a) The authors of obscene literature, published with their
knowledge in any form; the editors publishing such literature; and
the owners/operators of the establishment selling the same;
(b) Those who, in theaters, fairs, cinematographs or
any other place, exhibit indecent or immoral plays,
scenes, acts or shows, it being understood that the
obscene literature or indecent or immoral plays,
scenes, acts or shows, whether live or in film, which
are prescribed by virtue hereof, shall include those
which: (1) glorify criminals or condone crimes; (2)
serve no other purpose but to satisfy the market for
violence, lust or pornography; (3) offend any race or
religion; (4) tend to abet traffic in and use of prohibited
drugs; and (5) are contrary to law, public order, morals,
 good customs, established policies, lawful orders,
decrees and edicts.
3. Those who shall sell, give away or exhibit films, prints,
engravings, sculpture or literature which are offensive to morals.
Petitioner should likewise be denied accreditation not only for advocating
immoral doctrines but likewise for not being truthful when it said that it "or
any of its nominees/party-list representatives have not violated or failed to
comply with laws, rules, or regulations relating to the elections."
Furthermore, should this Commission grant the petition, we will be
exposing our youth to an environment that does not conform to the
teachings of our faith. Lehman Strauss, a famous bible teacher and writer in
the U.S.A. said in one article that "older practicing homosexuals are a threat
to the youth." As an agency of the government, ours too is the State’s
avowed duty under Section 13, Article II of the Constitution to protect our
youth from moral and spiritual degradation.8
When Ang Ladlad sought reconsideration,9 three commissioners voted to
overturn the First Assailed Resolution (Commissioners Gregorio Y.
Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three
commissioners voted to deny Ang Ladlad’s Motion for Reconsideration
(Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R.
Yusoph). The COMELEC Chairman, breaking the tie and speaking for the
majority in his Separate Opinion, upheld the First Assailed Resolution,
stating that:
I. The Spirit of Republic Act No. 7941
Ladlad is applying for accreditation as a sectoral party in the party-list
system. Even assuming that it has properly proven its under-representation
and marginalization, it cannot be said that Ladlad’s expressed sexual
orientations per se would benefit the nation as a whole.
Section 2 of the party-list law unequivocally states that the purpose of the
party-list system of electing congressional representatives is to enable
Filipino citizens belonging to marginalized and under-represented sectors,
organizations and parties, and who lack well-defined political constituencies
but who could contribute to the formulation and enactment of appropriate
legislation that will benefit the nation as a whole, to become members of the
House of Representatives.
If entry into the party-list system would depend only on the ability of an
organization to represent its constituencies, then all representative
organizations would have found themselves into the party-list race. But that
is not the intention of the framers of the law. The party-list system is not a
tool to advocate tolerance and acceptance of misunderstood persons or
groups of persons. Rather, the party-list system is a tool for the realization
of aspirations of marginalized individuals whose interests are also the
nation’s – only that their interests have not been brought to the attention of
the nation because of their under representation. Until the time comes when
Ladlad is able to justify that having mixed sexual orientations and
transgender identities is beneficial to the nation, its application for
accreditation under the party-list system will remain just that.
II. No substantial differentiation
In the United States, whose equal protection doctrine pervades Philippine
jurisprudence, courts do not recognize lesbians, gays, homosexuals, and
bisexuals (LGBT) as a "special class" of individuals. x x x Significantly, it
has also been held that homosexuality is not a constitutionally protected
fundamental right, and that "nothing in the U.S. Constitution discloses a
comparable intent to protect or promote the social or legal equality of
homosexual relations," as in the case of race or religion or belief.
xxxx
Thus, even if society’s understanding, tolerance, and acceptance of LGBT’s
is elevated, there can be no denying that Ladlad constituencies are still
males and females, and they will remain either male or female protected by
the same Bill of Rights that applies to all citizens alike.
xxxx
IV. Public Morals
x x x There is no question about not imposing on Ladlad Christian or
Muslim religious practices. Neither is there any attempt to any particular
religious group’s moral rules on Ladlad. Rather, what are being adopted as
moral parameters and precepts are generally accepted public morals. They
are possibly religious-based, but as a society, the Philippines cannot ignore
Page 30 of 60 CONSTI2 EQUAL PROTECTION
its more than 500 years of Muslim and Christian upbringing, such that some
moral precepts espoused by said religions have sipped [sic] into society and
these are not publicly accepted moral norms.
V. Legal Provisions
But above morality and social norms, they have become part of the law of
the land. Article 201 of the Revised Penal Code imposes the penalty of
prision mayor upon "Those who shall publicly expound or proclaim
doctrines openly contrary to public morals." It penalizes "immoral doctrines,
obscene publications and exhibition and indecent shows." "Ang Ladlad"
apparently falls under these legal provisions. This is clear from its Petition’s
paragraph 6F: "Consensual partnerships or relationships by gays and
lesbians who are already of age’ It is further indicated in par. 24 of the
Petition which waves for the record: ‘In 2007, Men Having Sex with Men or
MSMs in the Philippines were estimated as 670,000. Moreoever, Article
694 of the Civil Code defines "nuisance" as any act, omission x x x or
anything else x x x which shocks, defies or disregards decency or morality x
x x." These are all unlawful.10
On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court
annul the Assailed Resolutions and direct the COMELEC to grant Ang
Ladlad’s application for accreditation. Ang Ladlad also sought the issuance
ex parte of a preliminary mandatory injunction against the COMELEC,
which had previously announced that it would begin printing the final
ballots for the May 2010 elections by January 25, 2010.
On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to
file its Comment on behalf of COMELEC not later than 12:00 noon of
January 11, 2010.11 Instead of filing a Comment, however, the OSG filed a
Motion for Extension, requesting that it be given until January 16, 2010 to
Comment.12 Somewhat surprisingly, the OSG later filed a Comment in
support of petitioner’s application.13 Thus, in order to give COMELEC the
opportunity to fully ventilate its position, we required it to file its own
comment.14 The COMELEC, through its Law Department, filed its
Comment on February 2, 2010.15
In the meantime, due to the urgency of the petition, we issued a temporary
restraining order on January 12, 2010, effective immediately and continuing
until further orders from this Court, directing the COMELEC to cease and
desist from implementing the Assailed Resolutions.16
Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a
Motion to Intervene or to Appear as Amicus Curiae, attaching thereto its
Comment-in-Intervention.17 The CHR opined that the denial of Ang
Ladlad’spetition on moral grounds violated the standards and principles of
the Constitution, the Universal Declaration of Human Rights (UDHR), and
the International Covenant on Civil and Political Rights (ICCPR). On
January 19, 2010, we granted the CHR’s motion to intervene.
On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to
Intervene18 which motion was granted on February 2, 2010.19
The Parties’ Arguments
Ang Ladlad argued that the denial of accreditation, insofar as it justified the
exclusion by using religious dogma, violated the constitutional guarantees
against the establishment of religion. Petitioner also claimed that the
Assailed Resolutions contravened its constitutional rights to privacy,
freedom of speech and assembly, and equal protection of laws, as well as
constituted violations of the Philippines’ international obligations against
discrimination based on sexual orientation.
The OSG concurred with Ang Ladlad’s petition and argued that the
COMELEC erred in denying petitioner’s application for registration since
there was no basis for COMELEC’s allegations of immorality. It also
opined that LGBTs have their own special interests and concerns which
should have been recognized by the COMELEC as a separate classification.
However, insofar as the purported violations of petitioner’s freedom of
speech, expression, and assembly were concerned, the OSG maintained that
there had been no restrictions on these rights.
In its Comment, the COMELEC reiterated that petitioner does not have a
concrete and genuine national political agenda to benefit the nation and that
the petition was validly dismissed on moral grounds. It also argued for the
first time that the LGBT sector is not among the sectors enumerated by the
Constitution and RA 7941, and that petitioner made untruthful statements in
its petition when it alleged its national existence contrary to actual
verification reports by COMELEC’s field personnel.
Our Ruling
We grant the petition.
Compliance with the Requirements of the Constitution and Republic Act
No. 7941
The COMELEC denied Ang Ladlad’s application for registration on the
ground that the LGBT sector is neither enumerated in the Constitution and
RA 7941, nor is it associated with or related to any of the sectors in the
enumeration.
Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands
for the proposition that only those sectors specifically enumerated in the law
or related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous
cultural communities, elderly, handicapped, women, youth, veterans,
overseas workers, and professionals) may be registered under the party-list
system. As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v.
Commission on Elections,20 "the enumeration of marginalized and under-
represented sectors is not exclusive". The crucial element is not whether a
sector is specifically enumerated, but whether a particular organization
complies with the requirements of the Constitution and RA 7941.
Respondent also argues that Ang Ladlad made untruthful statements in its
petition when it alleged that it had nationwide existence through its
members and affiliate organizations. The COMELEC claims that upon
verification by its field personnel, it was shown that "save for a few isolated
places in the country, petitioner does not exist in almost all provinces in the
country."21
This argument that "petitioner made untruthful statements in its petition
when it alleged its national existence" is a new one; previously, the
COMELEC claimed that petitioner was "not being truthful when it said that
it or any of its nominees/party-list representatives have not violated or failed
to comply with laws, rules, or regulations relating to the elections."
Nowhere was this ground for denial of petitioner’s accreditation mentioned
or even alluded to in the Assailed Resolutions. This, in itself, is quite
curious, considering that the reports of petitioner’s alleged non-existence
were already available to the COMELEC prior to the issuance of the First
Assailed Resolution. At best, this is irregular procedure; at worst, a belated
afterthought, a change in respondent’s theory, and a serious violation of
petitioner’s right to procedural due process.
Nonetheless, we find that there has been no misrepresentation. A cursory
perusal of Ang Ladlad’s initial petition shows that it never claimed to exist
in each province of the Philippines. Rather, petitioner alleged that the LGBT
community in the Philippines was estimated to constitute at least 670,000
persons; that it had 16,100 affiliates and members around the country, and
4,044 members in its electronic discussion group. 22 Ang Ladlad also
represented itself to be "a national LGBT umbrella organization with
affiliates around the Philippines composed of the following LGBT
networks:"
§ Abra Gay Association
§ Aklan Butterfly Brigade (ABB) – Aklan
§ Albay Gay Association
§ Arts Center of Cabanatuan City – Nueva Ecija
§ Boys Legion – Metro Manila
§ Cagayan de Oro People Like Us (CDO PLUS)
§ Can’t Live in the Closet, Inc. (CLIC) – Metro Manila
§ Cebu Pride – Cebu City
§ Circle of Friends
§ Dipolog Gay Association – Zamboanga del Norte
§ Gay, Bisexual, & Transgender Youth Association (GABAY)
§ Gay and Lesbian Activists Network for Gender Equality
(GALANG) – Metro Manila
§ Gay Men’s Support Group (GMSG) – Metro Manila
§ Gay United for Peace and Solidarity (GUPS) – Lanao del Norte
§ Iloilo City Gay Association – Iloilo City
Page 31 of 60 CONSTI2 EQUAL PROTECTION
§ Kabulig Writer’s Group – Camarines Sur
§ Lesbian Advocates Philippines, Inc. (LEAP)
§ LUMINA – Baguio City
§ Marikina Gay Association – Metro Manila
§ Metropolitan Community Church (MCC) – Metro Manila
§ Naga City Gay Association – Naga City
§ ONE BACARDI
§ Order of St. Aelred (OSAe) – Metro Manila
§ PUP LAKAN
§ RADAR PRIDEWEAR
§ Rainbow Rights Project (R-Rights), Inc. – Metro Manila
§ San Jose del Monte Gay Association – Bulacan
§ Sining Kayumanggi Royal Family – Rizal
§ Society of Transexual Women of the Philippines (STRAP) –
Metro Manila
§ Soul Jive – Antipolo, Rizal
§ The Link – Davao City
§ Tayabas Gay Association – Quezon
§ Women’s Bisexual Network – Metro Manila
§ Zamboanga Gay Association – Zamboanga City23
Since the COMELEC only searched for the names ANG LADLAD LGBT
or LADLAD LGBT, it is no surprise that they found that petitioner had no
presence in any of these regions. In fact, if COMELEC’s findings are to be
believed, petitioner does not even exist in Quezon City, which is registered
as Ang Ladlad’s principal place of business.
Against this backdrop, we find that Ang Ladlad has sufficiently
demonstrated its compliance with the legal requirements for accreditation.
Indeed, aside from COMELEC’s moral objection and the belated allegation
of non-existence, nowhere in the records has the respondent ever
found/ruled that Ang Ladlad is not qualified to register as a party-list
organization under any of the requisites under RA 7941 or the guidelines in
Ang Bagong Bayani. The difference, COMELEC claims, lies in Ang
Ladlad’s morality, or lack thereof.
Religion as the Basis for Refusal to Accept Ang Ladlad’s Petition for
Registration
Our Constitution provides in Article III, Section 5 that "[n]o law shall be
made respecting an establishment of religion, or prohibiting the free
exercise thereof." At bottom, what our non-establishment clause calls for is
"government neutrality in religious matters."24 Clearly, "governmental
reliance on religious justification is inconsistent with this policy of
neutrality."25 We thus find that it was grave violation of the non-
establishment clause for the COMELEC to utilize the Bible and the Koran
to justify the exclusion of Ang Ladlad.
Rather than relying on religious belief, the legitimacy of the Assailed
Resolutions should depend, instead, on whether the COMELEC is able to
advance some justification for its rulings beyond mere conformity to
religious doctrine. Otherwise stated, government must act for secular
purposes and in ways that have primarily secular effects. As we held in
Estrada v. Escritor:26
x x x The morality referred to in the law is public and necessarily secular,
not religious as the dissent of Mr. Justice Carpio holds. "Religious teachings
as expressed in public debate may influence the civil public order but public
moral disputes may be resolved only on grounds articulable in secular
terms." Otherwise, if government relies upon religious beliefs in
formulating public policies and morals, the resulting policies and morals
would require conformity to what some might regard as religious programs
or agenda. The non-believers would therefore be compelled to conform to a
standard of conduct buttressed by a religious belief, i.e., to a "compelled
religion," anathema to religious freedom. Likewise, if government based its
actions upon religious beliefs, it would tacitly approve or endorse that belief
and thereby also tacitly disapprove contrary religious or non-religious views
that would not support the policy. As a result, government will not provide
full religious freedom for all its citizens, or even make it appear that those
whose beliefs are disapproved are second-class citizens.1avvphi1
In other words, government action, including its proscription of immorality
as expressed in criminal law like concubinage, must have a secular purpose.
That is, the government proscribes this conduct because it is "detrimental
(or dangerous) to those conditions upon which depend the existence and
progress of human society" and not because the conduct is proscribed by the
beliefs of one religion or the other. Although admittedly, moral judgments
based on religion might have a compelling influence on those engaged in
public deliberations over what actions would be considered a moral
disapprobation punishable by law. After all, they might also be adherents of
a religion and thus have religious opinions and moral codes with a
compelling influence on them; the human mind endeavors to regulate the
temporal and spiritual institutions of society in a uniform manner,
harmonizing earth with heaven. Succinctly put, a law could be religious or
Kantian or Aquinian or utilitarian in its deepest roots, but it must have an
articulable and discernible secular purpose and justification to pass scrutiny
of the religion clauses. x x x Recognizing the religious nature of the
Filipinos and the elevating influence of religion in society, however, the
Philippine constitution's religion clauses prescribe not a strict but a
benevolent neutrality. Benevolent neutrality recognizes that government
must pursue its secular goals and interests but at the same time strive to
uphold religious liberty to the greatest extent possible within flexible
constitutional limits. Thus, although the morality contemplated by laws is
secular, benevolent neutrality could allow for accommodation of morality
based on religion, provided it does not offend compelling state interests. 27
Public Morals as a Ground to Deny Ang Ladlad’s Petition for Registration
Respondent suggests that although the moral condemnation of
homosexuality and homosexual conduct may be religion-based, it has long
been transplanted into generally accepted public morals. The COMELEC
argues:
Petitioner’s accreditation was denied not necessarily because their group
consists of LGBTs but because of the danger it poses to the people
especially the youth. Once it is recognized by the government, a sector
which believes that there is nothing wrong in having sexual relations with
individuals of the same gender is a bad example. It will bring down the
standard of morals we cherish in our civilized society. Any society without a
set of moral precepts is in danger of losing its own existence. 28
We are not blind to the fact that, through the years, homosexual conduct,
and perhaps homosexuals themselves, have borne the brunt of societal
disapproval. It is not difficult to imagine the reasons behind this censure –
religious beliefs, convictions about the preservation of marriage, family, and
procreation, even dislike or distrust of homosexuals themselves and their
perceived lifestyle. Nonetheless, we recall that the Philippines has not seen
fit to criminalize homosexual conduct. Evidently, therefore, these "generally
accepted public morals" have not been convincingly transplanted into the
realm of law.29
The Assailed Resolutions have not identified any specific overt immoral act
performed by Ang Ladlad. Even the OSG agrees that "there should have
been a finding by the COMELEC that the group’s members have committed
or are committing immoral acts."30 The OSG argues:
x x x A person may be sexually attracted to a person of the same gender, of
a different gender, or more than one gender, but mere attraction does not
translate to immoral acts. There is a great divide between thought and
action. Reduction ad absurdum. If immoral thoughts could be penalized,
COMELEC would have its hands full of disqualification cases against both
the "straights" and the gays." Certainly this is not the intendment of the
law.31
Respondent has failed to explain what societal ills are sought to be
prevented, or why special protection is required for the youth. Neither has
the COMELEC condescended to justify its position that petitioner’s
admission into the party-list system would be so harmful as to irreparably
damage the moral fabric of society. We, of course, do not suggest that the
state is wholly without authority to regulate matters concerning morality,
sexuality, and sexual relations, and we recognize that the government will
and should continue to restrict behavior considered detrimental to society.
Nonetheless, we cannot countenance advocates who, undoubtedly with the
loftiest of intentions, situate morality on one end of an argument or another,
without bothering to go through the rigors of legal reasoning and
Page 32 of 60 CONSTI2 EQUAL PROTECTION
explanation. In this, the notion of morality is robbed of all value. Clearly
then, the bare invocation of morality will not remove an issue from our
scrutiny.
We also find the COMELEC’s reference to purported violations of our
penal and civil laws flimsy, at best; disingenuous, at worst. Article 694 of
the Civil Code defines a nuisance as "any act, omission, establishment,
condition of property, or anything else which shocks, defies, or disregards
decency or morality," the remedies for which are a prosecution under the
Revised Penal Code or any local ordinance, a civil action, or abatement
without judicial proceedings.32 A violation of Article 201 of the Revised
Penal Code, on the other hand, requires proof beyond reasonable doubt to
support a criminal conviction. It hardly needs to be emphasized that mere
allegation of violation of laws is not proof, and a mere blanket invocation of
public morals cannot replace the institution of civil or criminal proceedings
and a judicial determination of liability or culpability.
As such, we hold that moral disapproval, without more, is not a sufficient
governmental interest to justify exclusion of homosexuals from participation
in the party-list system. The denial of Ang Ladlad’s registration on purely
moral grounds amounts more to a statement of dislike and disapproval of
homosexuals, rather than a tool to further any substantial public interest.
Respondent’s blanket justifications give rise to the inevitable conclusion
that the COMELEC targets homosexuals themselves as a class, not because
of any particular morally reprehensible act. It is this selective targeting that
implicates our equal protection clause.
Equal Protection
Despite the absolutism of Article III, Section 1 of our Constitution, which
provides "nor shall any person be denied equal protection of the laws,"
courts have never interpreted the provision as an absolute prohibition on
classification. "Equality," said Aristotle, "consists in the same treatment of
similar persons."33 The equal protection clause guarantees that no person or
class of persons shall be deprived of the same protection of laws which is
enjoyed by other persons or other classes in the same place and in like
circumstances.34
Recent jurisprudence has affirmed that if a law neither burdens a
fundamental right nor targets a suspect class, we will uphold the
classification as long as it bears a rational relationship to some legitimate
government end.35 In Central Bank Employees Association, Inc. v. Banko
Sentral ng Pilipinas,36 we declared that "[i]n our jurisdiction, the standard of
analysis of equal protection challenges x x x have followed the ‘rational
basis’ test, coupled with a deferential attitude to legislative classifications
and a reluctance to invalidate a law unless there is a showing of a clear and
unequivocal breach of the Constitution."37
The COMELEC posits that the majority of the Philippine population
considers homosexual conduct as immoral and unacceptable, and this
constitutes sufficient reason to disqualify the petitioner. Unfortunately for
the respondent, the Philippine electorate has expressed no such belief. No
law exists to criminalize homosexual behavior or expressions or parties
about homosexual behavior. Indeed, even if we were to assume that public
opinion is as the COMELEC describes it, the asserted state interest here –
that is, moral disapproval of an unpopular minority – is not a legitimate state
interest that is sufficient to satisfy rational basis review under the equal
protection clause. The COMELEC’s differentiation, and its unsubstantiated
claim that Ang Ladlad cannot contribute to the formulation of legislation
that would benefit the nation, furthers no legitimate state interest other than
disapproval of or dislike for a disfavored group.
From the standpoint of the political process, the lesbian, gay, bisexual, and
transgender have the same interest in participating in the party-list system
on the same basis as other political parties similarly situated. State intrusion
in this case is equally burdensome. Hence, laws of general application
should apply with equal force to LGBTs, and they deserve to participate in
the party-list system on the same basis as other marginalized and under-
represented sectors.
It bears stressing that our finding that COMELEC’s act of differentiating
LGBTs from heterosexuals insofar as the party-list system is concerned
does not imply that any other law distinguishing between heterosexuals and
homosexuals under different circumstances would similarly fail. We
disagree with the OSG’s position that homosexuals are a class in themselves
for the purposes of the equal protection clause. 38 We are not prepared to
single out homosexuals as a separate class meriting special or differentiated
treatment. We have not received sufficient evidence to this effect, and it is
simply unnecessary to make such a ruling today. Petitioner itself has merely
demanded that it be recognized under the same basis as all other groups
similarly situated, and that the COMELEC made "an unwarranted and
impermissible classification not justified by the circumstances of the case."
Freedom of Expression and Association
Under our system of laws, every group has the right to promote its agenda
and attempt to persuade society of the validity of its position through normal
democratic means.39 It is in the public square that deeply held convictions
and differing opinions should be distilled and deliberated upon. As we held
in Estrada v. Escritor:40
In a democracy, this common agreement on political and moral ideas is
distilled in the public square. Where citizens are free, every opinion, every
prejudice, every aspiration, and every moral discernment has access to the
public square where people deliberate the order of their life together.
Citizens are the bearers of opinion, including opinion shaped by, or
espousing religious belief, and these citizens have equal access to the public
square. In this representative democracy, the state is prohibited from
determining which convictions and moral judgments may be proposed for
public deliberation. Through a constitutionally designed process, the people
deliberate and decide. Majority rule is a necessary principle in this
democratic governance. Thus, when public deliberation on moral judgments
is finally crystallized into law, the laws will largely reflect the beliefs and
preferences of the majority, i.e., the mainstream or median
groups. Nevertheless, in the very act of adopting and accepting a
constitution and the limits it specifies – including protection of religious
freedom "not only for a minority, however small – not only for a majority,
however large – but for each of us" – the majority imposes upon itself a self-
denying ordinance. It promises not to do what it otherwise could do: to ride
roughshod over the dissenting minorities.
Freedom of expression constitutes one of the essential foundations of a
democratic society, and this freedom applies not only to those that are
favorably received but also to those that offend, shock, or disturb. Any
restriction imposed in this sphere must be proportionate to the legitimate
aim pursued. Absent any compelling state interest, it is not for the
COMELEC or this Court to impose its views on the populace. Otherwise
stated, the COMELEC is certainly not free to interfere with speech for no
better reason than promoting an approved message or discouraging a
disfavored one.
This position gains even more force if one considers that homosexual
conduct is not illegal in this country. It follows that both expressions
concerning one’s homosexuality and the activity of forming a political
association that supports LGBT individuals are protected as well.
Other jurisdictions have gone so far as to categorically rule that even
overwhelming public perception that homosexual conduct violates public
morality does not justify criminalizing same-sex conduct.41 European and
United Nations judicial decisions have ruled in favor of gay rights claimants
on both privacy and equality grounds, citing general privacy and equal
protection provisions in foreign and international texts. 42 To the extent that
there is much to learn from other jurisdictions that have reflected on the
issues we face here, such jurisprudence is certainly illuminating. These
foreign authorities, while not formally binding on Philippine courts, may
nevertheless have persuasive influence on the Court’s analysis.
In the area of freedom of expression, for instance, United States courts have
ruled that existing free speech doctrines protect gay and lesbian rights to
expressive conduct. In order to justify the prohibition of a particular
expression of opinion, public institutions must show that their actions were
caused by "something more than a mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular viewpoint." 43
With respect to freedom of association for the advancement of ideas and
beliefs, in Europe, with its vibrant human rights tradition, the European
Court of Human Rights (ECHR) has repeatedly stated that a political party
may campaign for a change in the law or the constitutional structures of a
state if it uses legal and democratic means and the changes it proposes are
consistent with democratic principles. The ECHR has emphasized that
political ideas that challenge the existing order and whose realization is
advocated by peaceful means must be afforded a proper opportunity of
expression through the exercise of the right of association, even if such
ideas may seem shocking or unacceptable to the authorities or the majority
of the population.44 A political group should not be hindered solely because
it seeks to publicly debate controversial political issues in order to find
solutions capable of satisfying everyone concerned. 45 Only if a political
party incites violence or puts forward policies that are incompatible with
democracy does it fall outside the protection of the freedom of association
guarantee.46
We do not doubt that a number of our citizens may believe that homosexual
conduct is distasteful, offensive, or even defiant. They are entitled to hold
and express that view. On the other hand, LGBTs and their supporters, in all
likelihood, believe with equal fervor that relationships between individuals
of the same sex are morally equivalent to heterosexual relationships. They,
too, are entitled to hold and express that view. However, as far as this Court
is concerned, our democracy precludes using the religious or moral views of
one part of the community to exclude from consideration the values of other
members of the community.
Page 33 of 60 CONSTI2 EQUAL PROTECTION
Of course, none of this suggests the impending arrival of a golden age for
gay rights litigants. It well may be that this Decision will only serve to
highlight the discrepancy between the rigid constitutional analysis of this
Court and the more complex moral sentiments of Filipinos. We do not
suggest that public opinion, even at its most liberal, reflect a clear-cut strong
consensus favorable to gay rights claims and we neither attempt nor expect
to affect individual perceptions of homosexuality through this Decision.
The OSG argues that since there has been neither prior restraint nor
subsequent punishment imposed on Ang Ladlad, and its members have not
been deprived of their right to voluntarily associate, then there has been no
restriction on their freedom of expression or association. The OSG argues
that:
There was no utterance restricted, no publication censored, or any assembly
denied. [COMELEC] simply exercised its authority to review and verify the
qualifications of petitioner as a sectoral party applying to participate in the
party-list system. This lawful exercise of duty cannot be said to be a
transgression of Section 4, Article III of the Constitution.
xxxx
A denial of the petition for registration x x x does not deprive the members
of the petitioner to freely take part in the conduct of elections. Their right to
vote will not be hampered by said denial. In fact, the right to vote is a
constitutionally-guaranteed right which cannot be limited.
As to its right to be elected in a genuine periodic election, petitioner
contends that the denial of Ang Ladlad’s petition has the clear and
immediate effect of limiting, if not outrightly nullifying the capacity of its
members to fully and equally participate in public life through engagement
in the party list elections.
This argument is puerile. The holding of a public office is not a right but a
privilege subject to limitations imposed by law. x x x47
The OSG fails to recall that petitioner has, in fact, established its
qualifications to participate in the party-list system, and – as advanced by
the OSG itself – the moral objection offered by the COMELEC was not a
limitation imposed by law. To the extent, therefore, that the petitioner has
been precluded, because of COMELEC’s action, from publicly expressing
its views as a political party and participating on an equal basis in the
political process with other equally-qualified party-list candidates, we find
that there has, indeed, been a transgression of petitioner’s fundamental
rights.
Non-Discrimination and International Law
In an age that has seen international law evolve geometrically in scope and
promise, international human rights law, in particular, has grown
dynamically in its attempt to bring about a more just and humane world
order. For individuals and groups struggling with inadequate structural and
governmental support, international human rights norms are particularly
significant, and should be effectively enforced in domestic legal systems so
that such norms may become actual, rather than ideal, standards of conduct.
Our Decision today is fully in accord with our international obligations to
protect and promote human rights. In particular, we explicitly recognize the
principle of non-discrimination as it relates to the right to electoral
participation, enunciated in the UDHR and the ICCPR.
The principle of non-discrimination is laid out in Article 26 of the ICCPR,
as follows:
Article 26
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law
shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.
In this context, the principle of non-discrimination requires that laws of
general application relating to elections be applied equally to all persons,
regardless of sexual orientation. Although sexual orientation is not
specifically enumerated as a status or ratio for discrimination in Article 26
of the ICCPR, the ICCPR Human Rights Committee has opined that the
reference to "sex" in Article 26 should be construed to include "sexual
orientation."48Additionally, a variety of United Nations bodies have
declared discrimination on the basis of sexual orientation to be prohibited
under various international agreements.49
The UDHR provides: professors, are – at best – de lege ferenda – and do not constitute binding
obligations on the Philippines. Indeed, so much of contemporary
Article 21. international law is characterized by the "soft law" nomenclature, i.e.,
international law is full of principles that promote international cooperation,
harmony, and respect for human rights, most of which amount to no more
(1) Everyone has the right to take part in the government of his country, than well-meaning desires, without the support of either State practice or
directly or through freely chosen representatives. opinio juris.53

Likewise, the ICCPR states:
Article 25
Every citizen shall have the right and the opportunity, without any of the
distinctions mentioned in article 2 and without unreasonable restrictions:
As a final note, we cannot help but observe that the social issues presented
by this case are emotionally charged, societal attitudes are in flux, even the
psychiatric and religious communities are divided in opinion. This Court’s
role is not to impose its own view of acceptable behavior. Rather, it is to
apply the Constitution and laws as best as it can, uninfluenced by public
opinion, and confident in the knowledge that our democracy is resilient
enough to withstand vigorous debate.

(a) To take part in the conduct of public affairs, directly or
through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which
shall be by universal and equal suffrage and shall be held by
secret ballot, guaranteeing the free expression of the will of the
electors;
WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the
Commission on Elections dated November 11, 2009 and December 16,
2009 in SPP No. 09-228 (PL) are hereby SET ASIDE. The Commission on
Elections is directed to GRANT petitioner’s application for party-list
accreditation.
SO ORDERED.

(c) To have access, on general terms of equality, to public service

in his country.

As stated by the CHR in its Comment-in-Intervention, the scope of the right

to electoral participation is elaborated by the Human Rights Committee in
its General Comment No. 25 (Participation in Public Affairs and the Right
to Vote) as follows:

1. Article 25 of the Covenant recognizes and protects the right of every

citizen to take part in the conduct of public affairs, the right to vote and to
be elected and the right to have access to public service. Whatever form of
constitution or government is in force, the Covenant requires States to adopt
such legislative and other measures as may be necessary to ensure that
citizens have an effective opportunity to enjoy the rights it protects. Article
25 lies at the core of democratic government based on the consent of the
people and in conformity with the principles of the Covenant.

xxxx

15. The effective implementation of the right and the opportunity to stand
for elective office ensures that persons entitled to vote have a free choice of
candidates. Any restrictions on the right to stand for election, such as
minimum age, must be justifiable on objective and reasonable criteria.
Persons who are otherwise eligible to stand for election should not be
excluded by unreasonable or discriminatory requirements such as education,
residence or descent, or by reason of political affiliation. No person should
suffer discrimination or disadvantage of any kind because of that person's
candidacy. States parties should indicate and explain the legislative
provisions which exclude any group or category of persons from elective
office.50

We stress, however, that although this Court stands willing to assume the
responsibility of giving effect to the Philippines’ international law
obligations, the blanket invocation of international law is not the panacea
for all social ills. We refer now to the petitioner’s invocation of the
Yogyakarta Principles (the Application of International Human Rights Law
In Relation to Sexual Orientation and Gender Identity), 51 which petitioner
declares to reflect binding principles of international law.

At this time, we are not prepared to declare that these Yogyakarta

Principles contain norms that are obligatory on the Philippines. There are
declarations and obligations outlined in said Principles which are not
reflective of the current state of international law, and do not find basis in
any of the sources of international law enumerated under Article 38(1) of
the Statute of the International Court of Justice. 52 Petitioner has not
undertaken any objective and rigorous analysis of these alleged principles of
international law to ascertain their true status.

We also hasten to add that not everything that society – or a certain segment
of society – wants or demands is automatically a human right. This is not an
arbitrary human intervention that may be added to or subtracted from at
will. It is unfortunate that much of what passes for human rights today is a
much broader context of needs that identifies many social desires as rights
in order to further claims that international law obliges states to sanction
these innovations. This has the effect of diluting real human rights, and is a
result of the notion that if "wants" are couched in "rights" language, then
they are no longer controversial.1avvphi1

Using even the most liberal of lenses, these Yogyakarta Principles,

consisting of a declaration formulated by various international law
Page 34 of 60 CONSTI2 EQUAL PROTECTION
Republic of the Philippines increases in crude oil and imported petroleum products resulting from
SUPREME COURT exchange rate adjustment and/or increase in world market prices of crude
Manila oil, and (2) to reimburse oil companies for cost underrecovery incurred as a
result of the reduction of domestic prices of petroleum products. Under the
EN BANC law, the OPSF may be sourced from:

1. any increase in the tax collection from ad valorem

tax or customs duty imposed on petroleum products
subject to tax under P.D. No. 1956 arising from
G.R. No. 124360 November 5, 1997 exchange rate adjustment,

FRANCISCO S. TATAD, petitioner, 2. any increase in the tax collection as a result of the
vs. lifting of tax exemptions of government corporations,
THE SECRETARY OF THE DEPARTMENT OF ENERGY AND as may be determined by the Minister of Finance in
THE SECRETARY OF THE DEPARTMENT OF consultation with the Board of Energy,
FINANCE, respondents.
3. any additional amount to be imposed on petroleum
G.R. No. 127867 November 5, 1997 products to augment the resources of the fund through
an appropriate order that may be issued by the Board
EDCEL C. LAGMAN, JOKER P. ARROYO, ENRIQUE GARCIA, of Energy requiring payment of persons or companies
WIGBERTO TANADA, FLAG HUMAN RIGHTS FOUNDATION, engaged in the business of importing, manufacturing
INC., FREEDOM FROM DEBT COALITION (FDC), and/or marketing petroleum products, or
SANLAKAS, petitioners,
vs. 4. any resulting peso costs differentials in case the
HON. RUBEN TORRES in his capacity as the Executive Secretary, actual peso costs paid by oil companies in the
HON. FRANCISCO VIRAY, in his capacity as the Secretary of Energy, importation of crude oil and petroleum products is less
CALTEX Philippines, Inc., PETRON Corporation and PILIPINAS than the peso costs computed using the reference
SHELL Corporation, respondents. foreign exchange rate as fixed by the Board of
Energy.7

By 1985, only three (3) oil companies were operating in the country —
PUNO, J.: Caltex, Shell and the government-owned PNOC.

The petitions at bar challenge the constitutionality of Republic Act No. 8180
entitled "An Act Deregulating the Downstream Oil Industry and For Other
Purposes".1 R.A. No. 8180 ends twenty six (26) years of government
regulation of the downstream oil industry. Few cases carry a surpassing
importance on the life of every Filipino as these petitions for the upswing
and downswing of our economy materially depend on the oscillation of oil.
In May, 1987, President Corazon C. Aquino signed Executive Order No.
172 creating the Energy Regulatory Boardto regulate the business of
importing, exporting, re-exporting, shipping, transporting, processing,
refining, marketing and distributing energy resources "when warranted and
only when public necessity requires." The Board had the following powers
and functions:

First, the facts without the fat. Prior to 1971, there was no government 1. Fix and regulate the
agency regulating the oil industry other than those dealing with ordinary prices of petroleum
commodities. Oil companies were free to enter and exit the market without products;
any government interference. There were four (4) refining companies (Shell,
Caltex, Bataan Refining Company and Filoil Refining) and six (6) 2. Fix and regulate the
petroleum marketing companies (Esso, Filoil, Caltex, Getty, Mobil and rate schedule or prices
Shell), then operating in the country.2 of piped gas to be
charged by duly
In 1971, the country was driven to its knees by a crippling oil crisis. The franchised gas
government, realizing that petroleum and its products are vital to national companies which
security and that their continued supply at reasonable prices is essential to distribute gas by means
the general welfare, enacted the Oil Industry Commission Act. 3 It created of underground pipe
the Oil Industry Commission (OIC) to regulate the business of importing, system;
exporting, re-exporting, shipping, transporting, processing, refining, storing,
distributing, marketing and selling crude oil, gasoline, kerosene, gas and 3. Fix and regulate the
other refined petroleum products. The OIC was vested with the power to rates of pipeline
fix the market prices of petroleum products, to regulate the capacities of concessionaries under
refineries, to license new refineries and to regulate the operations and trade the provisions of R.A.
practices of the industry.4 No. 387, as amended . .
.;
In addition to the creation of the OIC, the government saw the imperious
need for a more active role of Filipinos in the oil industry. Until the early 4. Regulate the
seventies, the downstream oil industry was controlled by multinational capacities of new
companies. All the oil refineries and marketing companies were owned refineries or additional
by foreigners whose economic interests did not always coincide with the capacities of existing
interest of the Filipino. Crude oil was transported to the country by foreign- refineries and license
controlled tankers. Crude processing was done locally by foreign-owned refineries that may be
refineries and petroleum products were marketed through foreign-owned organized after the
retail outlets. On November 9, 1973, President Ferdinand E. Marcos boldly issuance of (E.O. No.
created the Philippine National Oil Corporation (PNOC) to break the control 172) under such terms
by foreigners of our oil industry.5 PNOC engaged in the business of and conditions as are
refining, marketing, shipping, transporting, and storing petroleum. It consistent with the
acquired ownership of ESSO Philippines and Filoil to serve as its marketing national interest; and
arm. It bought the controlling shares of Bataan Refining Corporation, the
largest refinery in the country.6 PNOC later put up its own marketing
subsidiary — Petrophil. PNOC operated under the business name PETRON 5. Whenever the Board
Corporation. For the first time, there was a Filipino presence in the has determined that
Philippine oil market. there is a shortage of
any petroleum product,
or when public interest
In 1984, President Marcos through Section 8 of Presidential Decree No. so requires, it may take
1956, created the Oil Price Stabilization Fund (OPSF) to cushion the effects such steps as it may
of frequent changes in the price of oil caused by exchange rate adjustments consider necessary,
or increase in the world market prices of crude oil and imported petroleum including the
products. The fund is used (1) to reimburse the oil companies for cost temporary adjustment
Page 35 of 60 CONSTI2 EQUAL PROTECTION
 of the levels of prices
of petroleum products
and the payment to the
Oil Price Stabilization
Fund . . . by persons or
entities engaged in the
petroleum industry of
such amounts as may
be determined by the
Board, which may
enable the importer to
recover its cost of
importation.8
On December 9, 1992, Congress enacted R.A. No. 7638 which created
the Department of Energy to prepare, integrate, coordinate, supervise and
control all plans, programs, projects, and activities of the government in
relation to energy exploration, development, utilization, distribution and
conservation.9 The thrust of the Philippine energy program under the law
was toward privatization of government agencies related to
energy, deregulation of the power and energy industry and reduction of
dependency on oil-fired plants.10 The law also aimed to encourage free and
active participation and investment by the private sector in all energy
activities. Section 5(e) of the law states that "at the end of four (4) years
from the effectivity of this Act, the Department shall, upon approval of the
President, institute the programs and timetable of deregulation of
appropriate energy projects and activities of the energy industry."
Pursuant to the policies enunciated in R.A. No. 7638, the government
approved the privatization of Petron Corporation in 1993. On December 16,
1993, PNOC sold 40% of its equity in Petron Corporation to the Aramco
Overseas Company.
In March 1996, Congress took the audacious step of deregulating the
downstream oil industry. It enacted R.A. No.8180, entitled the "Downstream
Oil Industry Deregulation Act of 1996." Under the deregulated environment,
"any person or entity may import or purchase any quantity of crude oil and
petroleum products from a foreign or domestic source, lease or own and
operate refineries and other downstream oil facilities and market such crude
oil or use the same for his own requirement," subject only to monitoring by
the Department of
Energy.11
The deregulation process has two phases: the transition phase and the full
deregulation phase. During the transition phase, controls of the non-pricing
aspects of the oil industry were to be lifted. The following were to be
accomplished: (1) liberalization of oil importation, exportation,
manufacturing, marketing and distribution, (2) implementation of an
automatic pricing mechanism, (3) implementation of an automatic formula
to set margins of dealers and rates of haulers, water transport operators and
pipeline concessionaires, and (4) restructuring of oil taxes. Upon full
deregulation, controls on the price of oil and the foreign exchange cover
were to be lifted and the OPSF was to be abolished.
The first phase of deregulation commenced on August 12, 1996.
On February 8, 1997, the President implemented the full deregulation of the
Downstream Oil Industry through E.O.No. 372.
The petitions at bar assail the constitutionality of various provisions of R.A
No. 8180 and E.O. No. 372.
In G.R. No. 124360, petitioner Francisco S. Tatad seeks the annulment of
section 5(b) of R.A. No. 8180. Section 5(b) provides:
b) Any law to the contrary notwithstanding and starting with the
effectivity of this Act, tariff duty shall be imposed and collected
on imported crude oil at the rate of three percent (3%) and
imported refined petroleum products at the rate of seven percent
(7%), except fuel oil and LPG, the rate for which shall be the
same as that for imported crude oil: Provided, That beginning on
January 1, 2004 the tariff rate on imported crude oil and refined
petroleum products shall be the same: Provided, further, That this
provision may be amended only by an Act of Congress.
The petition is anchored on three arguments:
First, that the imposition of different tariff rates on imported crude oil and
imported refined petroleum products violates the equal protection clause.
Petitioner contends that the 3%-7% tariff differential unduly favors the three
existing oil refineries and discriminates against prospective investors in the
downstream oil industry who do not have their own refineries and will have
to source refined petroleum products from abroad.
Page 36 of 60 CONSTI2 EQUAL PROTECTION
Second, that the imposition of different tariff rates does not deregulate the
downstream oil industry but instead controls the oil industry, contrary to the
avowed policy of the law. Petitioner avers that the tariff differential between
imported crude oil and imported refined petroleum products bars the entry
of other players in the oil industry because it effectively protects the interest
of oil companies with existing refineries. Thus, it runs counter to the
objective of the law "to foster a truly competitive market."
Third, that the inclusion of the tariff provision in section 5(b) of R.A. No.
8180 violates Section 26(1) Article VI of the Constitution requiring every
law to have only one subject which shall be expressed in its title. Petitioner
contends that the imposition of tariff rates in section 5(b) of R.A. No. 8180
is foreign to the subject of the law which is the deregulation of the
downstream oil industry.
In G.R. No. 127867, petitioners Edcel C. Lagman, Joker P. Arroyo, Enrique
Garcia, Wigberto Tanada, Flag Human Rights Foundation, Inc., Freedom
from Debt Coalition (FDC) and Sanlakas contest the constitutionality of
section 15 of R.A. No. 8180 and E.O. No. 392. Section 15 provides:
Sec. 15. Implementation of Full Deregulation. — Pursuant to
Section 5(e) of Republic Act No. 7638, the DOE shall, upon
approval of the President, implement the full deregulation of the
downstream oil industry not later than March 1997. As far as
practicable, the DOE shall time the full deregulation when the
prices of crude oil and petroleum products in the world market
are declining and when the exchange rate of the peso in relation
to the US dollar is stable. Upon the implementation of the full
deregulation as provided herein, the transition phase is deemed
terminated and the following laws are deemed repealed:
xxx xxx xxx
E.O. No. 372 states in full, viz.:
WHEREAS, Republic Act No. 7638, otherwise known as the
"Department of Energy Act of 1992," provides that, at the end of
four years from its effectivity last December 1992, "the
Department (of Energy) shall, upon approval of the President,
institute the programs and time table of deregulation of
appropriate energy projects and activities of the energy sector;"
WHEREAS, Section 15 of Republic Act No. 8180, otherwise
known as the "Downstream Oil Industry Deregulation Act of
1996," provides that "the DOE shall, upon approval of the
President, implement full deregulation of the downstream oil
industry not later than March, 1997. As far as practicable, the
DOE shall time the full deregulation when the prices of crude oil
and petroleum products in the world market are declining and
when the exchange rate of the peso in relation to the US dollar is
stable;"
WHEREAS, pursuant to the recommendation of the Department
of Energy, there is an imperative need to implement the full
deregulation of the downstream oil industry because of the
following recent developments: (i) depletion of the buffer fund on
or about 7 February 1997 pursuant to the Energy Regulatory
Board's Order dated 16 January 1997; (ii) the prices of crude oil
had been stable at $21-$23 per barrel since October 1996 while
prices of petroleum products in the world market had been stable
since mid-December of last year. Moreover, crude oil prices are
beginning to soften for the last few days while prices of some
petroleum products had already declined; and (iii) the exchange
rate of the peso in relation to the US dollar has been stable for the
past twelve (12) months, averaging at around P26.20 to one US
dollar;
WHEREAS, Executive Order No. 377 dated 31 October 1996
provides for an institutional framework for the administration of
the deregulated industry by defining the functions and
responsibilities of various government agencies;
WHEREAS, pursuant to Republic Act No. 8180, the deregulation
of the industry will foster a truly competitive market which can
better achieve the social policy objectives of fair prices and
adequate, continuous supply of environmentally-clean and high
quality petroleum products;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the
Republic of the Philippines, by the powers vested in me by law,
do hereby declare the full deregulation of the downstream oil
industry.
In assailing section 15 of R.A. No. 8180 and E.O. No. 392, petitioners offer
the following submissions:
First, section 15 of R.A. No. 8180 constitutes an undue delegation of
legislative power to the President and the Secretary of Energy because it
does not provide a determinate or determinable standard to guide the
Executive Branch in determining when to implement the full deregulation of
the downstream oil industry. Petitioners contend that the law does not define
when it is practicable for the Secretary of Energy to recommend to the
President the full deregulation of the downstream oil industry or when the
President may consider it practicable to declare full deregulation. Also, the
law does not provide any specific standard to determine when the prices of
crude oil in the world market are considered to be declining nor when the
exchange rate of the peso to the US dollar is considered stable.
Second, petitioners aver that E.O. No. 392 implementing the full
deregulation of the downstream oil industry is arbitrary and unreasonable
because it was enacted due to the alleged depletion of the OPSF fund — a
condition not found in R.A. No. 8180.
Third, section 15 of R.A. No. 8180 and E.O. No. 392 allow the formation of
a de facto cartel among the three existing oil companies — Petron, Caltex
and Shell — in violation of the constitutional prohibition against
monopolies, combinations in restraint of trade and unfair competition.
Respondents, on the other hand, fervently defend the constitutionality of
R.A. No. 8180 and E.O. No. 392. In addition, respondents contend that the
issues raised by the petitions are not justiciable as they pertain to the
wisdom of the law. Respondents further aver that petitioners have no locus
standi as they did not sustain nor will they sustain direct injury as a result of
the implementation of R.A. No. 8180.
The petitions were heard by the Court on September 30, 1997. On October
7, 1997, the Court ordered the private respondents oil companies "to
maintain the status quo and to cease and desist from increasing the prices of
gasoline and other petroleum fuel products for a period of thirty (30) days . .
. subject to further orders as conditions may warrant."
We shall now resolve the petitions on the merit. The petitions raise
procedural and substantive issues bearing on the constitutionality of R.A.
No. 8180 and E.O. No. 392. The procedural issues are: (1) whether or not
the petitions raise a justiciable controversy, and (2) whether or not the
petitioners have the standing to assail the validity of the subject law and
executive order. The substantive issues are: (1) whether or not section 5 (b)
violates the one title — one subject requirement of the Constitution; (2)
whether or not the same section violates the equal protection clause of the
Constitution; (3) whether or not section 15 violates the constitutional
prohibition on undue delegation of power; (4) whether or not E.O. No. 392
is arbitrary and unreasonable; and (5) whether or not R.A. No. 8180 violates
the constitutional prohibition against monopolies, combinations in restraint
of trade and unfair competition.
We shall first tackle the procedural issues. Respondents claim that the
avalanche of arguments of the petitioners assail the wisdom of R.A. No.
8180. They aver that deregulation of the downstream oil industry is a policy
decision made by Congress and it cannot be reviewed, much less be
reversed by this Court. In constitutional parlance, respondents contend that
the petitions failed to raise a justiciable controversy.
Respondents' joint stance is unnoteworthy. Judicial power includes not only
the duty of the courts to settle actual controversies involving rights which
are legally demandable and enforceable, but also the duty to determine
whether or not there has been grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
government.12 The courts, as guardians of the Constitution, have the
inherent authority to determine whether a statute enacted by the legislature
transcends the limit imposed by the fundamental law. Where a statute
violates the Constitution, it is not only the right but the duty of the judiciary
to declare such act as unconstitutional and void.13 We held in the recent case
of Tanada v. Angara:14
xxx xxx xxx
In seeking to nullify an act of the Philippine Senate on the ground
that it contravenes the Constitution, the petition no doubt raises a
justiciable controversy. Where an action of the legislative branch
is seriously alleged to have infringed the Constitution, it becomes
not only the right but in fact the duty of the judiciary to settle the
dispute. The question thus posed is judicial rather than political.
The duty to adjudicate remains to assure that the supremacy of
the Constitution is upheld. Once a controversy as to the
application or interpretation of a constitutional provision is raised
before this Court, it becomes a legal issue which the Court is
bound by constitutional mandate to decide.
Page 37 of 60 CONSTI2 EQUAL PROTECTION
Even a sideglance at the petitions will reveal that petitioners have raised
constitutional issues which deserve the resolution of this Court in view of
their seriousness and their value as precedents. Our statement of facts and
definition of issues clearly show that petitioners are assailing R.A. No. 8180
because its provisions infringe the Constitution and not because the law
lacks wisdom. The principle of separation of power mandates that
challenges on the constitutionality of a law should be resolved in our courts
of justice while doubts on the wisdom of a law should be debated in the
halls of Congress. Every now and then, a law may be denounced in court
both as bereft of wisdom and constitutionally infirmed. Such denunciation
will not deny this Court of its jurisdiction to resolve the constitutionality of
the said law while prudentially refusing to pass on its wisdom.
The effort of respondents to question the locus standi of petitioners must
also fall on barren ground. In language too lucid to be misunderstood, this
Court has brightlined its liberal stance on a petitioner's locus standi where
the petitioner is able to craft an issue of transcendental significance to the
people.15 In Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas,
Inc. v. Tan,16 we stressed:
xxx xxx xxx
Objections to taxpayers' suit for lack of sufficient personality,
standing or interest are, however, in the main procedural matters.
Considering the importance to the public of the cases at bar, and
in keeping with the Court's duty, under the 1987 Constitution, to
determine whether or not the other branches of government have
kept themselves within the limits of the Constitution and the laws
and that they have not abused the discretion given to them, the
Court has brushed aside technicalities of procedure and has taken
cognizance of these petitions.
There is not a dot of disagreement between the petitioners and the
respondents on the far reaching importance of the validity of RA No. 8180
deregulating our downstream oil industry. Thus, there is no good sense in
being hypertechnical on the standing of petitioners for they pose issues
which are significant to our people and which deserve our forthright
resolution.
We shall now track down the substantive issues. In G.R. No. 124360 where
petitioner is Senator Tatad, it is contended that section 5(b) of R.A. No.
8180 on tariff differential violates the provision17 of the Constitution
requiring every law to have only one subject which should be expressed in
its title. We do not concur with this contention. As a policy, this Court has
adopted a liberal construction of the one title — one subject rule. We have
consistently ruled18 that the title need not mirror, fully index or catalogue all
contents and minute details of a law. A law having a single general subject
indicated in the title may contain any number of provisions, no matter how
diverse they may be, so long as they are not inconsistent with or foreign to
the general subject, and may be considered in furtherance of such subject by
providing for the method and means of carrying out the general
subject.19 We hold that section 5(b) providing for tariff differential is
germane to the subject of R.A. No. 8180 which is the deregulation of the
downstream oil industry. The section is supposed to sway prospective
investors to put up refineries in our country and make them rely less on
imported petroleum.20 We shall, however, return to the validity of this
provision when we examine its blocking effect on new entrants to the oil
market.
We shall now slide to the substantive issues in G.R. No. 127867. Petitioners
assail section 15 of R.A. No. 8180 which fixes the time frame for the full
deregulation of the downstream oil industry. We restate its pertinent portion
for emphasis, viz.:
Sec. 15. Implementation of Full Deregulation — Pursuant to
section 5(e) of Republic Act No. 7638, the DOE shall, upon
approval of the President, implement the full deregulation of the
downstream oil industry not later than March 1997. As far as
practicable, the DOE shall time the full deregulation when the
prices of crude oil and petroleum products in the world market
are declining and when the exchange rate of the peso in relation
to the US dollar is stable . . .
Petitioners urge that the phrases "as far as practicable," "decline of crude oil
prices in the world market" and "stability of the peso exchange rate to the
US dollar" are ambivalent, unclear and inconcrete in meaning. They submit
that they do not provide the "determinate or determinable standards" which
can guide the President in his decision to fully deregulate the downstream
oil industry. In addition, they contend that E.O. No. 392 which advanced the
date of full deregulation is void for it illegally considered the depletion of
the OPSF fund as a factor.
The power of Congress to delegate the execution of laws has long been
settled by this Court. As early as 1916 in Compania General de Tabacos de
Filipinas vs. The Board of Public Utility Commissioners,21 this Court thru,
Mr. Justice Moreland, held that "the true distinction is between the
delegation of power to make the law, which necessarily involves a
discretion as to what it shall be, and conferring authority or discretion as to
its execution, to be exercised under and in pursuance of the law. The first
cannot be done; to the latter no valid objection can be made." Over the
years, as the legal engineering of men's relationship became more difficult,
Congress has to rely more on the practice of delegating the execution of
laws to the executive and other administrative agencies. Two tests have
been developed to determine whether the delegation of the power to execute
laws does not involve the abdication of the power to make law itself. We
delineated the metes and bounds of these tests in Eastern Shipping Lines,
Inc. VS. POEA,22 thus:
There are two accepted tests to determine whether or not there is
a valid delegation of legislative power, viz: the completeness test
and the sufficient standard test. Under the first test, the law must
be complete in all its terms and conditions when it leaves the
legislative such that when it reaches the delegate the only thing he
will have to do is to enforce it. Under the sufficient standard test,
there must be adequate guidelines or limitations in the law to map
out the boundaries of the delegate's authority and prevent the
delegation from running riot. Both tests are intended to prevent a
total transference of legislative authority to the delegate, who is
not allowed to step into the shoes of the legislature and exercise a
power essentially legislative.
The validity of delegating legislative power is now a quiet area in our
constitutional landscape. As sagely observed, delegation of legislative
power has become an inevitability in light of the increasing complexity of
the task of government. Thus, courts bend as far back as possible to sustain
the constitutionality of laws which are assailed as unduly delegating
legislative powers. Citing Hirabayashi v. United States23 as authority, Mr.
Justice Isagani A. Cruz states "that even if the law does not expressly
pinpoint the standard, the courts will bend over backward to locate the same
elsewhere in order to spare the statute, if it can, from constitutional
infirmity."24
Given the groove of the Court's rulings, the attempt of petitioners to strike
down section 15 on the ground of undue delegation of legislative power
cannot prosper. Section 15 can hurdle both the completeness test and the
sufficient standard test. It will be noted that Congress expressly provided in
R.A. No. 8180 that full deregulation will start at the end of March 1997,
regardless of the occurrence of any event. Full deregulation at the end of
March 1997 is mandatory and the Executive has no discretion to postpone it
for any purported reason. Thus, the law is complete on the question of the
final date of full deregulation. The discretion given to the President is to
advance the date of full deregulation before the end of March 1997. Section
15 lays down the standard to guide the judgment of the President — he is to
time it as far as practicable when the prices of crude oil and petroleum
products in the world market are declining and when the exchange rate of
the peso in relation to the US dollar is stable.
Petitioners contend that the words "as far as practicable," "declining" and
"stable" should have been defined in R.A. No. 8180 as they do not set
determinate or determinable standards. The stubborn submission deserves
scant consideration. The dictionary meanings of these words are well settled
and cannot confuse men of reasonable intelligence. Webster defines
"practicable" as meaning possible to practice or perform, "decline" as
meaning to take a downward direction, and "stable" as meaning firmly
established.25 The fear of petitioners that these words will result in the
exercise of executive discretion that will run riot is thus groundless. To be
sure, the Court has sustained the validity of similar, if not more general
standards in other cases.26
It ought to follow that the argument that E.O. No. 392 is null and void as it
was based on indeterminate standards set by R.A. 8180 must likewise fail. If
that were all to the attack against the validity of E.O. No. 392, the issue need
not further detain our discourse. But petitioners further posit the thesis that
the Executive misapplied R.A. No. 8180 when it considered the depletion of
the OPSF fund as a factor in fully deregulating the downstream oil industry
in February 1997. A perusal of section 15 of R.A. No. 8180 will readily
reveal that it only enumerated two factors to be considered by the
Department of Energy and the Office of the President, viz.: (1) the time
when the prices of crude oil and petroleum products in the world market are
declining, and (2) the time when the exchange rate of the peso in relation to
the US dollar is stable. Section 15 did not mention the depletion of the
OPSF fund as a factor to be given weight by the Executive before ordering
full deregulation. On the contrary, the debates in Congress will show that
some of our legislators wanted to impose as a pre-condition to deregulation
a showing that the OPSF fund must not be in deficit. 27 We therefore hold
that the Executive department failed to follow faithfully the standards set by
R.A. No. 8180 when it considered the extraneous factor of depletion of the
OPSF fund. The misappreciation of this extra factor cannot be justified on
the ground that the Executive department considered anyway the stability of
the prices of crude oil in the world market and the stability of the exchange
rate of the peso to the dollar. By considering another factor to hasten full
deregulation, the Executive department rewrote the standards set forth in
Page 38 of 60 CONSTI2 EQUAL PROTECTION
R.A. 8180. The Executive is bereft of any right to alter either by subtraction
or addition the standards set in R.A. No. 8180 for it has no power to make
laws. To cede to the Executive the power to make law is to invite tyranny,
indeed, to transgress the principle of separation of powers. The exercise of
delegated power is given a strict scrutiny by courts for the delegate is a mere
agent whose action cannot infringe the terms of agency. In the cases at bar,
the Executive co-mingled the factor of depletion of the OPSF fund with the
factors of decline of the price of crude oil in the world market and the
stability of the peso to the US dollar. On the basis of the text of E.O. No.
392, it is impossible to determine the weight given by the Executive
department to the depletion of the OPSF fund. It could well be the principal
consideration for the early deregulation. It could have been accorded an
equal significance. Or its importance could be nil. In light of this
uncertainty, we rule that the early deregulation under E.O. No. 392
constitutes a misapplication of R.A. No. 8180.
We now come to grips with the contention that some provisions of R.A. No.
8180 violate section 19 of Article XII of the 1987 Constitution. These
provisions are:
(1) Section 5 (b) which states — "Any law to the contrary
notwithstanding and starting with the effectivity of this Act, tariff
duty shall be imposed and collected on imported crude oil at the
rate of three percent (3%) and imported refined petroleum
products at the rate of seven percent (7%) except fuel oil and
LPG, the rate for which shall be the same as that for imported
crude oil. Provided, that beginning on January 1, 2004 the tariff
rate on imported crude oil and refined petroleum products shall
be the same. Provided, further, that this provision may be
amended only by an Act of Congress."
(2) Section 6 which states — "To ensure the security and
continuity of petroleum crude and products supply, the DOE shall
require the refiners and importers to maintain a minimum
inventory equivalent to ten percent (10%) of their respective
annual sales volume or forty (40) days of supply, whichever is
lower," and
(3) Section 9 (b) which states — "To ensure fair competition and
prevent cartels and monopolies in the downstream oil industry,
the following acts shall be prohibited:
xxx xxx xxx
(b) Predatory pricing which means selling or
offering to sell any product at a price
unreasonably below the industry average
cost so as to attract customers to the
detriment of competitors.
On the other hand, section 19 of Article XII of the Constitution allegedly
violated by the aforestated provisions of R.A. No. 8180 mandates: "The
State shall regulate or prohibit monopolies when the public interest so
requires. No combinations in restraint of trade or unfair competition shall be
allowed."
A monopoly is a privilege or peculiar advantage vested in one or more
persons or companies, consisting in the exclusive right or power to carry on
a particular business or trade, manufacture a particular article, or control the
sale or the whole supply of a particular commodity. It is a form of market
structure in which one or only a few firms dominate the total sales of a
product or service.28 On the other hand, a combination in restraint of trade is
an agreement or understanding between two or more persons, in the form of
a contract, trust, pool, holding company, or other form of association, for the
purpose of unduly restricting competition, monopolizing trade and
commerce in a certain commodity, controlling its, production, distribution
and price, or otherwise interfering with freedom of trade without statutory
authority.29 Combination in restraint of trade refers to the means while
monopoly refers to the end.30
Article 186 of the Revised Penal Code and Article 28 of the New Civil Code
breathe life to this constitutional policy. Article 186 of the Revised Penal
Code penalizes monopolization and creation of combinations in restraint of
trade, 31 while Article 28 of the New Civil Code makes any person who
shall engage in unfair competition liable for damages.32
Respondents aver that sections 5(b), 6 and 9(b) implement the policies and
objectives of R.A. No. 8180. They explain that the 4% tariff differential is
designed to encourage new entrants to invest in refineries. They stress that
the inventory requirement is meant to guaranty continuous domestic supply
of petroleum and to discourage fly-by-night operators. They also submit that
the prohibition against predatory pricing is intended to protect prospective
entrants. Respondents manifested to the Court that new players have entered
the Philippines after deregulation and have now captured 3% — 5% of the
oil market.
The validity of the assailed provisions of R.A. No. 8180 has to be decided in
light of the letter and spirit of our Constitution, especially section 19, Article
XII. Beyond doubt, the Constitution committed us to the free enterprise
system but it is a system impressed with its own distinctness. Thus, while
the Constitution embraced free enterprise as an economic creed, it did not
prohibit per se the operation of monopolies which can, however, be
regulated in the public interest.33 Thus too, our free enterprise system is not
based on a market of pure and unadulterated competition where the State
pursues a strict hands-off policy and follows the let-the-devil devour the
hindmost rule. Combinations in restraint of trade and unfair competitions
are absolutely proscribed and the proscription is directed both against the
State as well as the private sector.34 This distinct free enterprise system is
dictated by the need to achieve the goals of our national economy as defined
by section 1, Article XII of the Constitution which are: more equitable
distribution of opportunities, income and wealth; a sustained increase in the
amount of goods and services produced by the nation for the benefit of the
people; and an expanding productivity as the key to raising the quality of
life for all, especially the underprivileged. It also calls for the State to
protect Filipino enterprises against unfair competition and trade practices.
Section 19, Article XII of our Constitution is anti-trust in history and in
spirit. It espouses competition. The desirability of competition is the reason
for the prohibition against restraint of trade, the reason for the interdiction of
unfair competition, and the reason for regulation of unmitigated monopolies.
Competition is thus the underlying principle of section 19, Article XII of our
Constitution which cannot be violated by R.A. No. 8180. We subscribe to
the observation of Prof. Gellhorn that the objective of anti-trust law is "to
assure a competitive economy, based upon the belief that through
competition producers will strive to satisfy consumer wants at the lowest
price with the sacrifice of the fewest resources. Competition among
producers allows consumers to bid for goods and services, and thus matches
their desires with society's opportunity costs." 35 He adds with
appropriateness that there is a reliance upon "the operation of the 'market'
system (free enterprise) to decide what shall be produced, how resources
shall be allocated in the production process, and to whom the various
products will be distributed. The market system relies on the consumer to
decide what and how much shall be produced, and on competition, among
producers to determine who will manufacture it."
Again, we underline in scarlet that the fundamental principle espoused by
section 19, Article XII of the Constitution is competition for it alone can
release the creative forces of the market. But the competition that can
unleash these creative forces is competition that is fighting yet is fair.
Ideally, this kind of competition requires the presence of not one, not just a
few but several players. A market controlled by one player (monopoly) or
dominated by a handful of players (oligopoly) is hardly the market where
honest-to-goodness competition will prevail. Monopolistic or oligopolistic
markets deserve our careful scrutiny and laws which barricade the entry
points of new players in the market should be viewed with suspicion.
Prescinding from these baseline propositions, we shall proceed to examine
whether the provisions of R.A. No. 8180 on tariff differential, inventory
reserves, and predatory prices imposed substantial barriers to the entry and
exit of new players in our downstream oil industry. If they do, they have to
be struck down for they will necessarily inhibit the formation of a truly
competitive market. Contrariwise, if they are insignificant impediments,
they need not be stricken down.
In the cases at bar, it cannot be denied that our downstream oil industry is
operated and controlled by an oligopoly, a foreign oligopoly at that. Petron,
Shell and Caltex stand as the only major league players in the oil market.
All other players belong to the lilliputian league. As the dominant players,
Petron, Shell and Caltex boast of existing refineries of various capacities.
The tariff differential of 4% therefore works to their immense benefit. Yet,
this is only one edge of the tariff differential. The other edge cuts and cuts
deep in the heart of their competitors. It erects a high barrier to the entry of
new players. New players that intend to equalize the market power of
Petron, Shell and Caltex by building refineries of their own will have to
spend billions of pesos. Those who will not build refineries but compete
with them will suffer the huge disadvantage of increasing their product cost
by 4%. They will be competing on an uneven field. The argument that the
4% tariff differential is desirable because it will induce prospective players
to invest in refineries puts the cart before the horse. The first need is to
attract new players and they cannot be attracted by burdening them with
heavy disincentives. Without new players belonging to the league of Petron,
Shell and Caltex, competition in our downstream oil industry is an idle
dream.
The provision on inventory widens the balance of advantage of Petron, Shell
and Caltex against prospective new players. Petron, Shell and Caltex can
easily comply with the inventory requirement of R.A. No. 8180 in view of
their existing storage facilities. Prospective competitors again will find
compliance with this requirement difficult as it will entail a prohibitive cost.
The construction cost of storage facilities and the cost of inventory can thus
scare prospective players. Their net effect is to further occlude the entry
points of new players, dampen competition and enhance the control of the
market by the three (3) existing oil companies.
Page 39 of 60 CONSTI2 EQUAL PROTECTION
Finally, we come to the provision on predatory pricing which is defined as
". . . selling or offering to sell any product at a price unreasonably below the
industry average cost so as to attract customers to the detriment of
competitors." Respondents contend that this provision works against Petron,
Shell and Caltex and protects new entrants. The ban on predatory pricing
cannot be analyzed in isolation. Its validity is interlocked with the barriers
imposed by R.A. No. 8180 on the entry of new players. The inquiry should
be to determine whether predatory pricing on the part of the dominant oil
companies is encouraged by the provisions in the law blocking the entry of
new players. Text-writer
Hovenkamp,36 gives the authoritative answer and we quote:
xxx xxx xxx
The rationale for predatory pricing is the sustaining of losses
today that will give a firm monopoly profits in the future. The
monopoly profits will never materialize, however, if the market is
flooded with new entrants as soon as the successful predator
attempts to raise its price. Predatory pricing will be profitable
only if the market contains significant barriers to new entry.
As aforediscsussed, the 4% tariff differential and the inventory requirement
are significant barriers which discourage new players to enter the market.
Considering these significant barriers established by R.A. No. 8180 and the
lack of players with the comparable clout of PETRON, SHELL and
CALTEX, the temptation for a dominant player to engage in predatory
pricing and succeed is a chilling reality. Petitioners' charge that this
provision on predatory pricing is anti-competitive is not without reason.
Respondents belittle these barriers with the allegation that new players have
entered the market since deregulation. A scrutiny of the list of the alleged
new players will, however, reveal that not one belongs to the class and
category of PETRON, SHELL and CALTEX. Indeed, there is no showing
that any of these new players intends to install any refinery and effectively
compete with these dominant oil companies. In any event, it cannot be
gainsaid that the new players could have been more in number and more
impressive in might if the illegal entry barriers in R.A. No. 8180 were not
erected.
We come to the final point. We now resolve the total effect of the untimely
deregulation, the imposition of 4% tariff differential on imported crude oil
and refined petroleum products, the requirement of inventory and the
prohibition on predatory pricing on the constitutionality of R.A. No. 8180.
The question is whether these offending provisions can be individually
struck down without invalidating the entire R.A. No. 8180. The ruling case
law is well stated by author Agpalo,37 viz.:
xxx xxx xxx
The general rule is that where part of a statute is void as
repugnant to the Constitution, while another part is valid, the
valid portion, if separable from the invalid, may stand and be
enforced. The presence of a separability clause in a statute creates
the presumption that the legislature intended separability, rather
than complete nullity of the statute. To justify this result, the valid
portion must be so far independent of the invalid portion that it is
fair to presume that the legislature would have enacted it by itself
if it had supposed that it could not constitutionally enact the
other. Enough must remain to make a complete, intelligible and
valid statute, which carries out the legislative intent. . . .
The exception to the general rule is that when the parts of a
statute are so mutually dependent and connected, as conditions,
considerations, inducements, or compensations for each other, as
to warrant a belief that the legislature intended them as a whole,
the nullity of one part will vitiate the rest. In making the parts of
the statute dependent, conditional, or connected with one another,
the legislature intended the statute to be carried out as a whole
and would not have enacted it if one part is void, in which case if
some parts are unconstitutional, all the other provisions thus
dependent, conditional, or connected must fall with them.
R.A. No. 8180 contains a separability clause. Section 23 provides that "if for
any reason, any section or provision of this Act is declared unconstitutional
or invalid, such parts not affected thereby shall remain in full force and
effect." This separability clause notwithstanding, we hold that the offending
provisions of R.A. No. 8180 so permeate its essence that the entire law has
to be struck down. The provisions on tariff differential, inventory and
predatory pricing are among the principal props of R.A. No. 8180. Congress
could not have deregulated the downstream oil industry without these
provisions. Unfortunately, contrary to their intent, these provisions on tariff
differential, inventory and predatory pricing inhibit fair competition,
encourage monopolistic power and interfere with the free interaction of
market forces. R.A. No. 8180 needs provisions to vouchsafe free and fair
competition. The need for these vouchsafing provisions cannot be
overstated. Before deregulation, PETRON, SHELL and CALTEX had no
real competitors but did not have a free run of the market because
government controls both the pricing and non-pricing aspects of the oil
industry. After deregulation, PETRON, SHELL and CALTEX remain
unthreatened by real competition yet are no longer subject to control by
government with respect to their pricing and non-pricing decisions. The
aftermath of R.A. No. 8180 is a deregulated market where competition can
be corrupted and where market forces can be manipulated by oligopolies.
The fall out effects of the defects of R.A. No. 8180 on our people have not
escaped Congress. A lot of our leading legislators have come out openly
with bills seeking the repeal of these odious and offensive provisions in
R.A. No. 8180. In the Senate, Senator Freddie Webb has filed S.B. No.
2133 which is the result of the hearings conducted by the Senate Committee
on Energy. The hearings revealed that (1) there was a need to level the
playing field for the new entrants in the downstream oil industry, and (2)
there was no law punishing a person for selling petroleum products at
unreasonable prices. Senator Alberto G. Romulo also filed S.B. No. 2209
abolishing the tariff differential beginning January 1, 1998. He declared that
the amendment ". . . would mean that instead of just three (3) big oil
companies there will be other major oil companies to provide more
competitive prices for the market and the consuming public." Senator
Heherson T . Alvarez, one of the principal proponents of R.A. No. 8180,
also filed S.B. No. 2290 increasing the penalty for violation of its section 9.
It is his opinion as expressed in the explanatory note of the bill that the
present oil companies are engaged in cartelization despite
R.A. No. 8180, viz,:
xxx xxx xxx
Since the downstream oil industry was fully deregulated in
February 1997, there have been eight (8) fuel price adjustments
made by the three oil majors, namely: Caltex Philippines, Inc.;
Petron Corporation; and Pilipinas Shell Petroleum Corporation.
Very noticeable in the price adjustments made, however, is the
uniformity in the pump prices of practically all petroleum
products of the three oil companies. This, despite the fact, that
their selling rates should be determined by a combination of any
of the following factors: the prevailing peso-dollar exchange rate
at the time payment is made for crude purchases, sources of
crude, and inventory levels of both crude and refined petroleum
products. The abovestated factors should have resulted in
different, rather than identical prices.
The fact that the three (3) oil companies' petroleum products are
uniformly priced suggests collusion, amounting to cartelization,
among Caltex Philippines, Inc., Petron Corporation and Pilipinas
Shell Petroleum Corporation to fix the prices of petroleum
products in violation of paragraph (a), Section 9 of R.A. No.
8180.
To deter this pernicious practice and to assure that present and
prospective players in the downstream oil industry conduct their
business with conscience and propriety, cartel-like activities
ought to be severely penalized.
Senator Francisco S. Tatad also filed S.B. No. 2307 providing for a uniform
tariff rate on imported crude oil and refined petroleum products. In the
explanatory note of the bill, he declared in no uncertain terms that ". . . the
present set-up has raised serious public concern over the way the three oil
companies have uniformly adjusted the prices of oil in the country, an
indication of a possible existence of a cartel or a cartel-like situation within
the downstream oil industry. This situation is mostly attributed to the
foregoing provision on tariff differential, which has effectively discouraged
the entry of new players in the downstream oil industry."
In the House of Representatives, the moves to rehabilitate R.A. No. 8180 are
equally feverish. Representative Leopoldo E. San Buenaventura has filed
H.B. No. 9826 removing the tariff differential for imported crude oil and
imported refined petroleum products. In the explanatory note of the bill,
Rep. Buenaventura explained:
xxx xxx xxx
As we now experience, this difference in tariff rates between
imported crude oil and imported refined petroleum
products, unwittingly provided a built-in-advantage for the three
existing oil refineries in the country and eliminating competition
which is a must in a free enterprise economy. Moreover, it
created a disincentive for other players to engage even initially in
the importation and distribution of refined petroleum products
and ultimately in the putting up of refineries. This tariff
differential virtually created a monopoly of the downstream oil
industry by the existing three oil companies as shown by their
Page 40 of 60 CONSTI2 EQUAL PROTECTION
uniform and capricious pricing of their products since this law
took effect, to the great disadvantage of the consuming public.
Thus, instead of achieving the desired effects of deregulation, that
of free enterprise and a level playing field in the downstream oil
industry, R.A. 8180 has created an environment conducive to
cartelization, unfavorable, increased, unrealistic prices of
petroleum products in the country by the three existing refineries.
Representative Marcial C. Punzalan, Jr., filed H.B. No. 9981 to prevent
collusion among the present oil companies by strengthening the oversight
function of the government, particularly its ability to subject to a review any
adjustment in the prices of gasoline and other petroleum products. In the
explanatory note of the bill, Rep. Punzalan, Jr., said:
xxx xxx xxx
To avoid this, the proposed bill seeks to strengthen the oversight
function of government, particularly its ability to review the
prices set for gasoline and other petroleum products. It grants the
Energy Regulatory Board (ERB) the authority to review prices of
oil and other petroleum products, as may be petitioned by a
person, group or any entity, and to subsequently compel any
entity in the industry to submit any and all documents relevant to
the imposition of new prices. In cases where the Board
determines that there exist collusion, economic conspiracy, unfair
trade practice, profiteering and/or overpricing, it may take any
step necessary to protect the public, including the readjustment of
the prices of petroleum products. Further, the Board may also
impose the fine and penalty of imprisonment, as prescribed in
Section 9 of R.A. 8180, on any person or entity from the oil
industry who is found guilty of such prohibited acts.
By doing all of the above, the measure will effectively provide
Filipino consumers with a venue where their grievances can be
heard and immediately acted upon by government.
Thus, this bill stands to benefit the Filipino consumer by making
the price-setting process more transparent and making it easier to
prosecute those who perpetrate such prohibited acts as collusion,
overpricing, economic conspiracy and unfair trade.
Representative Sergio A.F . Apostol filed H.B. No. 10039 to remedy an
omission in R.A. No. 8180 where there is no agency in government that
determines what is "reasonable" increase in the prices of oil
products. Representative Dente O. Tinga, one of the principal sponsors of
R.A. No. 8180, filed H.B. No. 10057 to strengthen its anti-trust provisions.
He elucidated in its explanatory note:
xxx xxx xxx
The definition of predatory pricing, however, needs to be
tightened up particularly with respect to the definitive benchmark
price and the specific anti-competitive intent. The definition in
the bill at hand which was taken from the Areeda-Turner test in
the United States on predatory pricing resolves the questions. The
definition reads, "Predatory pricing means selling or offering to
sell any oil product at a price below the average variable cost for
the purpose of destroying competition, eliminating a competitor
or discouraging a competitor from entering the market."
The appropriate actions which may be resorted to under the Rules
of Court in conjunction with the oil deregulation law are
adequate. But to stress their availability and dynamism, it is a
good move to incorporate all the remedies in the law itself. Thus,
the present bill formalizes the concept of government intervention
and private suits to address the problem of antitrust violations.
Specifically, the government may file an action to prevent or
restrain any act of cartelization or predatory pricing, and if it has
suffered any loss or damage by reason of the antitrust violation it
may recover damages. Likewise, a private person or entity may
sue to prevent or restrain any such violation which will result in
damage to his business or property, and if he has already suffered
damage he shall recover treble damages. A class suit may also be
allowed.
To make the DOE Secretary more effective in the enforcement of
the law, he shall be given additional powers to gather information
and to require reports.
Representative Erasmo B. Damasing filed H.B. No. 7885 and has a more
unforgiving view of R.A. No. 8180. He wants it completely repealed. He
explained:
 xxx xxx xxx
Contrary to the projections at the time the bill on the Downstream
Oil Industry Deregulation was discussed and debated upon in the
plenary session prior to its approval into law, there aren't any new
players or investors in the oil industry. Thus, resulting in
practically a cartel or monopoly in the oil industry by the three
(3) big oil companies, Caltex, Shell and Petron. So much so, that
with the deregulation now being partially implemented, the said
oil companies have succeeded in increasing the prices of most of
their petroleum products with little or no interference at all from
the government. In the month of August, there was an increase of
Fifty centavos (50¢) per liter by subsidizing the same with the
OPSF, this is only temporary as in March 1997, or a few months
from now, there will be full deregulation (Phase II) whereby the
increase in the prices of petroleum products will be fully
absorbed by the consumers since OPSF will already be abolished
by then. Certainly, this would make the lives of our people,
especially the unemployed ones, doubly difficult and unbearable.
The much ballyhooed coming in of new players in the oil industry
is quite remote considering that these prospective investors
cannot fight the existing and well established oil companies in the
country today, namely, Caltex, Shell and Petron. Even if these
new players will come in, they will still have no chance to
compete with the said three (3) existing big oil companies
considering that there is an imposition of oil tariff differential of
4% between importation of crude oil by the said oil refineries
paying only 3% tariff rate for the said importation and 7% tariff
rate to be paid by businessmen who have no oil refineries in the
Philippines but will import finished petroleum/oil products which
is being taxed with 7% tariff rates.
So, if only to help the many who are poor from further suffering
as a result of unmitigated increase in oil products due to
deregulation, it is a must that the Downstream Oil Industry
Deregulation Act of 1996, or R.A.8180 be repealed completely.
Various resolutions have also been filed in the Senate calling for
an immediate and comprehensive review of R.A. No. 8180 to prevent the
downpour of its ill effects on the people. Thus, S. Res. No. 574 was filed
by Senator Gloria M. Macapagal entitled Resolution "Directing the
Committee on Energy to Inquire Into The Proper Implementation of the
Deregulation of the Downstream Oil Industry and Oil Tax Restructuring As
Mandated Under R.A. Nos. 8180 and 8184, In Order to Make The
Necessary Corrections In the Apparent Misinterpretation Of The Intent And
Provision Of The Laws And Curb The Rising Tide Of Disenchantment
Among The Filipino Consumers And Bring About The Real Intentions And
Benefits Of The Said Law." Senator Blas P. Ople filed S. Res. No. 664
entitled resolution "Directing the Committee on Energy To Conduct An
Inquiry In Aid Of Legislation To Review The Government's Oil
Deregulation Policy In Light Of The Successive Increases In
Transportation, Electricity And Power Rates, As well As Of Food And
Other Prime Commodities And Recommend Appropriate Amendments To
Protect The Consuming Public." Senator Ople observed:
xxx xxx xxx
WHEREAS, since the passage of R.A. No. 8180, the Energy
Regulatory Board (ERB) has imposed successive increases in oil
prices which has triggered increases in electricity and power
rates, transportation fares, as well as in prices of food and other
prime commodities to the detriment of our people, particularly
the poor;
WHEREAS, the new players that were expected to compete with
the oil cartel-Shell, Caltex and Petron-have not come in;
WHEREAS, it is imperative that a review of the oil deregulation
policy be made to consider appropriate amendments to the
existing law such as an extension of the transition phase before
full deregulation in order to give the competitive market enough
time to develop;
WHEREAS, the review can include the advisability of providing
some incentives in order to attract the entry of new oil companies
to effect a dynamic competitive market;
WHEREAS, it may also be necessary to defer the setting up of
the institutional framework for full deregulation of the oil
industry as mandated under Executive Order No. 377 issued by
President Ramos last October 31, 1996 . . .
Page 41 of 60 CONSTI2 EQUAL PROTECTION
Senator Alberto G. Romulo filed S. Res. No. 769 entitled resolution
"Directing the Committees on Energy and Public Services In Aid Of
Legislation To Assess The Immediate Medium And Long Term Impact of
Oil Deregulation On Oil Prices And The Economy." Among the reasons for
the resolution is the finding that "the requirement of a 40-day stock
inventory effectively limits the entry of other oil firms in the market with the
consequence that instead of going down oil prices will rise."
Parallel resolutions have been filed in the House of
Representatives. Representative Dante O. Tinga filed H. Res. No. 1311
"Directing The Committee on Energy To Conduct An Inquiry, In Aid of
Legislation, Into The Pricing Policies And Decisions Of The Oil Companies
Since The Implementation of Full Deregulation Under the Oil Deregulation
Act (R.A. No. 8180) For the Purpose of Determining In the Context Of The
Oversight Functions Of Congress Whether The Conduct Of The Oil
Companies, Whether Singly Or Collectively, Constitutes Cartelization
Which Is A Prohibited Act Under R.A. No. 8180, And What Measures
Should Be Taken To Help Ensure The Successful Implementation Of The
Law In Accordance With Its Letter And Spirit, Including Recommending
Criminal Prosecution Of the Officers Concerned Of the Oil Companies If
Warranted By The Evidence, And For Other Purposes." Representatives
Marcial C. Punzalan, Jr. Dante O. Tinga and Antonio E. Bengzon III filed
H.R. No. 894 directing the House Committee on Energy to inquire into the
proper implementation of the deregulation of the downstream oil industry.
House Resolution No. 1013 was also filed by Representatives Edcel
C. Lagman, Enrique T . Garcia, Jr. and Joker P.Arroyo urging the President
to immediately suspend the implementation of E.O. No. 392.
In recent memory there is no law enacted by the legislature afflicted with so
much constitutional deformities as R.A. No. 8180. Yet, R.A. No. 8180 deals
with oil, a commodity whose supply and price affect the ebb and flow of the
lifeblood of the nation. Its shortage of supply or a slight, upward spiral in its
price shakes our economic foundation. Studies show that the areas most
impacted by the movement of oil are food manufacture, land transport,
trade, electricity and water.38 At a time when our economy is in a dangerous
downspin, the perpetuation of R.A. No. 8180 threatens to multiply the
number of our people with bent backs and begging bowls. R.A. No. 8180
with its anti-competition provisions cannot be allowed by this Court to stand
even while Congress is working to remedy its defects.
The Court, however, takes note of the plea of PETRON, SHELL and
CALTEX to lift our restraining order to enable them to adjust upward the
price of petroleum and petroleum products in view of the plummeting value
of the peso. Their plea, however, will now have to be addressed to the
Energy Regulatory Board as the effect of the declaration of
unconstitutionality of R.A. No. 8180 is to revive the former laws it
repealed.39 The length of our return to the regime of regulation depends on
Congress which can fasttrack the writing of a new law on oil deregulation in
accord with the Constitution.
With this Decision, some circles will chide the Court for interfering with an
economic decision of Congress. Such criticism is charmless for the Court is
annulling R.A. No. 8180 not because it disagrees with deregulation as an
economic policy but because as cobbled by Congress in its present form, the
law violates the Constitution. The right call therefor should be for Congress
to write a new oil deregulation law that conforms with the Constitution and
not for this Court to shirk its duty of striking down a law that offends the
Constitution. Striking down R.A. No. 8180 may cost losses in quantifiable
terms to the oil oligopolists. But the loss in tolerating the tampering of our
Constitution is not quantifiable in pesos and centavos. More worthy of
protection than the supra-normal profits of private corporations is the
sanctity of the fundamental principles of the Constitution. Indeed when
confronted by a law violating the Constitution, the Court has no option but
to strike it down dead. Lest it is missed, the Constitution is a covenant that
grants and guarantees both the political and economic rights of the people.
The Constitution mandates this Court to be the guardian not only of the
people's political rights but their economic rights as well. The protection of
the economic rights of the poor and the powerless is of greater importance
to them for they are concerned more with the exoterics of living and less
with the esoterics of liberty. Hence, for as long as the Constitution reigns
supreme so long will this Court be vigilant in upholding the economic rights
of our people especially from the onslaught of the powerful. Our defense of
the people's economic rights may appear heartless because it cannot be half-
hearted.
IN VIEW WHEREOF, the petitions are granted. R.A. No. 8180 is declared
unconstitutional and E.O. No. 372 void.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 179267 June 25, 2013
JESUS C. GARCIA, Petitioner,
vs.
THE HONORABLE RAY ALAN T. DRILON, Presiding Judge,
Regional Trial Court-Branch 41, Bacolod City, and ROSALIE JAYPE-
GARCIA, for herself and in behalf of minor children, namely: JO-
ANN, JOSEPH EDUARD, JESSE ANTHONE, all surnamed
GARCIA, Respondents.
DECISION
PERLAS-BERNABE, J.:
Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8
million Filipinos- or 93 percent of a total population of 93.3 million –
adhering to the teachings of Jesus Christ.1 Yet, the admonition for husbands
to love their wives as their own bodies just as Christ loved the church and
gave himself up for her2 failed to prevent, or even to curb, the pervasiveness
of violence against Filipino women. The National Commission on the Role
of Filipino Women (NCRFW) reported that, for the years 2000-2003,
"female violence comprised more than 90o/o of all forms of abuse and
violence and more than 90% of these reported cases were committed by the
women's intimate partners such as their husbands and live-in partners."3
Thus, on March 8, 2004, after nine (9) years of spirited advocacy by
women's groups, Congress enacted Republic Act (R.A.) No. 9262, entitled
"An Act Defining Violence Against Women and Their Children, Providing
for Protective Measures for Victims, Prescribing Penalties Therefor, and for
Other Purposes." It took effect on March 27, 2004. 4
R.A. 9262 is a landmark legislation that defines and criminalizes acts of
violence against women and their children (VAWC) perpetrated by women's
intimate partners, i.e, husband; former husband; or any person who has or
had a sexual or dating relationship, or with whom the woman has a common
child.5 The law provides for protection orders from the barangay and the
courts to prevent the commission of further acts of VAWC; and outlines the
duties and responsibilities of barangay officials, law enforcers, prosecutors
and court personnel, social workers, health care providers, and other local
government officials in responding to complaints of VAWC or requests for
assistance.
A husband is now before the Court assailing the constitutionality of R.A.
9262 as being violative of the equal protection and due process clauses, and
an undue delegation of judicial power to barangay officials.
The Factual Antecedents
On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for
herself and in behalf of her minor children, a verified petition6 (Civil Case
No. 06-797) before the Regional Trial Court (RTC) of Bacolod City for the
issuance of a Temporary Protection Order (TPO) against her husband, Jesus
C. Garcia (petitioner), pursuant to R.A. 9262. She claimed to be a victim of
physical abuse; emotional, psychological, and economic violence as a result
of marital infidelity on the part of petitioner, with threats of deprivation of
custody of her children and of financial support. 7
Private respondent's claims
Private respondent married petitioner in 2002 when she was 34 years old
and the former was eleven years her senior. They have three (3) children,
namely: Jo-Ann J. Garcia, 17 years old, who is the natural child of petitioner
but whom private respondent adopted; Jessie Anthone J. Garcia, 6 years old;
and Joseph Eduard J. Garcia, 3 years old.8
Private respondent described herself as a dutiful and faithful wife, whose
life revolved around her husband. On the other hand, petitioner, who is of
Filipino-Chinese descent, is dominant, controlling, and demands absolute
obedience from his wife and children. He forbade private respondent to
pray, and deliberately isolated her from her friends. When she took up law,
and even when she was already working part time at a law office, petitioner
trivialized her ambitions and prevailed upon her to just stay at home. He
was often jealous of the fact that his attractive wife still catches the eye of
some men, at one point threatening that he would have any man eyeing her
killed.9
Page 42 of 60 CONSTI2 EQUAL PROTECTION
Things turned for the worse when petitioner took up an affair with a bank
manager of Robinson's Bank, Bacolod City, who is the godmother of one of
their sons. Petitioner admitted to the affair when private respondent
confronted him about it in 2004. He even boasted to the household help
about his sexual relations with said bank manager. Petitioner told private
respondent, though, that he was just using the woman because of their
accounts with the bank.10
Petitioner's infidelity spawned a series of fights that left private respondent
physically and emotionally wounded. In one of their quarrels, petitioner
grabbed private respondent on both arms and shook her with such force that
caused bruises and hematoma. At another time, petitioner hit private
respondent forcefully on the lips that caused some bleeding. Petitioner
sometimes turned his ire on their daughter, Jo-Ann, who had seen the text
messages he sent to his paramour and whom he blamed for squealing on
him. He beat Jo-Ann on the chest and slapped her many times. When private
respondent decided to leave petitioner, Jo-Ann begged her mother to stay
for fear that if the latter leaves, petitioner would beat her up. Even the small
boys are aware of private respondent's sufferings. Their 6-year-old son said
that when he grows up, he would beat up his father because of his cruelty to
private respondent.11
All the emotional and psychological turmoil drove private respondent to the
brink of despair. On December 17, 2005, while at home, she attempted
suicide by cutting her wrist. She was found by her son bleeding on the floor.
Petitioner simply fled the house instead of taking her to the hospital. Private
respondent was hospitalized for about seven (7) days in which time
petitioner never bothered to visit, nor apologized or showed pity on her.
Since then, private respondent has been undergoing therapy almost every
week and is taking anti-depressant medications.12
When private respondent informed the management of Robinson's Bank that
she intends to file charges against the bank manager, petitioner got angry
with her for jeopardizing the manager's job. He then packed his things and
told private respondent that he was leaving her for good. He even told
private respondent's mother, who lives with them in the family home, that
private respondent should just accept his extramarital affair since he is not
cohabiting with his paramour and has not sired a child with her. 13
Private respondent is determined to separate from petitioner but she is afraid
that he would take her children from her and deprive her of financial
support. Petitioner had previously warned her that if she goes on a legal
battle with him, she would not get a single centavo.14
Petitioner controls the family businesses involving mostly the construction
of deep wells. He is the President of three corporations – 326 Realty
Holdings, Inc., Negros Rotadrill Corporation, and J-Bros Trading
Corporation – of which he and private respondent are both stockholders. In
contrast to the absolute control of petitioner over said corporations, private
respondent merely draws a monthly salary of ₱20,000.00 from one
corporation only, the Negros Rotadrill Corporation. Household expenses
amounting to not less than ₱200,000.00 a month are paid for by private
respondent through the use of credit cards, which, in turn, are paid by the
same corporation together with the bills for utilities. 15
On the other hand, petitioner receives a monthly salary of ₱60,000.00 from
Negros Rotadrill Corporation, and enjoys unlimited cash advances and other
benefits in hundreds of thousands of pesos from the corporations. 16 After
private respondent confronted him about the affair, petitioner forbade her to
hold office at JBTC Building, Mandalagan, where all the businesses of the
corporations are conducted, thereby depriving her of access to full
information about said businesses. Until the filing of the petition a quo,
petitioner has not given private respondent an accounting of the businesses
the value of which she had helped raise to millions of pesos. 17
Action of the RTC of Bacolod City
Finding reasonable ground to believe that an imminent danger of violence
against the private respondent and her children exists or is about to recur,
the RTC issued a TPO18 on March 24, 2006 effective for thirty (30) days,
which is quoted hereunder:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
a) Ordered to remove all his personal belongings from the
conjugal dwelling or family home within 24 hours from receipt of
the Temporary Restraining Order and if he refuses, ordering that
he be removed by police officers from the conjugal dwelling; this
order is enforceable notwithstanding that the house is under the
name of 236 Realty Holdings Inc. (Republic Act No. 9262 states
"regardless of ownership"), this is to allow the Petitioner (private
respondent herein) to enter the conjugal dwelling without any
danger from the Respondent.
 After the Respondent leaves or is removed from the conjugal
dwelling, or anytime the Petitioner decides to return to the
conjugal dwelling to remove things, the Petitioner shall be
assisted by police officers when re-entering the family home.
The Chief of Police shall also give the Petitioner police assistance
on Sunday, 26 March 2006 because of the danger that the
Respondent will attempt to take her children from her when he
arrives from Manila and finds out about this suit.
b) To stay away from the petitioner and her children, mother and
all her household help and driver from a distance of 1,000 meters,
and shall not enter the gate of the subdivision where the Petitioner
may be temporarily residing.
c) Not to harass, annoy, telephone, contact or otherwise
communicate with the Petitioner, directly or indirectly, or through
other persons, or contact directly or indirectly her children,
mother and household help, nor send gifts, cards, flowers, letters
and the like. Visitation rights to the children may be subject of a
modified TPO in the future.
d) To surrender all his firearms including a .9MM caliber firearm
and a Walther PPK and ordering the Philippine National Police
Firearms and Explosives Unit and the Provincial Director of the
PNP to cancel all the Respondent's firearm licenses. He should
also be ordered to surrender any unlicensed firearms in his
possession or control.
e) To pay full financial support for the Petitioner and the children,
including rental of a house for them, and educational and medical
expenses.
f) Not to dissipate the conjugal business.
g) To render an accounting of all advances, benefits, bonuses and
other cash he received from all the corporations from 1 January
2006 up to 31 March 2006, which himself and as President of the
corporations and his Comptroller, must submit to the Court not
later than 2 April 2006. Thereafter, an accounting of all these
funds shall be reported to the court by the Comptroller, copy
furnished to the Petitioner, every 15 days of the month, under
pain of Indirect Contempt of Court.
h) To ensure compliance especially with the order granting
support pendente lite, and considering the financial resources of
the Respondent and his threat that if the Petitioner sues she will
not get a single centavo, the Respondent is ordered to put up a
BOND TO KEEP THE PEACE in the amount of FIVE
MILLION PESOS, in two sufficient sureties.
On April 24, 2006, upon motion19 of private respondent, the trial
court issued an amended TPO,20 effective for thirty (30) days,
which included the following additional provisions:
i) The petitioners (private respondents herein) are given the
continued use of the Nissan Patrol and the Starex Van which they
are using in Negros Occidental.
j) The petitioners are given the continued use and occupation of
the house in Parañaque, the continued use of the Starex van in
Metro Manila, whenever they go to Manila.
k) Respondent is ordered to immediately post a bond to keep the
peace, in two sufficient sureties.
l) To give monthly support to the petitioner provisionally fixed in
the sum of One Hundred Fifty Thousand Pesos (Php 150,000.00)
per month plus rental expenses of Fifty Thousand Pesos (Php
50,000.00) per month until the matter of support could be finally
resolved.
Two days later, or on April 26, 2006, petitioner filed an Opposition to the
Urgent Ex-Parte Motion for Renewal of the TPO21 seeking the denial of the
renewal of the TPO on the grounds that it did not (1) comply with the three-
day notice rule, and (2) contain a notice of hearing. He further asked that the
TPO be modified by (1) removing one vehicle used by private respondent
and returning the same to its rightful owner, the J-Bros Trading Corporation,
and (2) cancelling or reducing the amount of the bond from ₱5,000,000.00
to a more manageable level at ₱100,000.00.
Page 43 of 60 CONSTI2 EQUAL PROTECTION
Subsequently, on May 23, 2006, petitioner moved22 for the modification of
the TPO to allow him visitation rights to his children.
On May 24, 2006, the TPO was renewed and extended yet again, but subject
only to the following modifications prayed for by private respondent:
a) That respondent (petitioner herein) return the clothes and other
personal belongings of Rosalie and her children to Judge Jesus
Ramos, co-counsel for Petitioner, within 24 hours from receipt of
the Temporary Protection Order by his counsel, otherwise be
declared in Indirect Contempt of Court;
b) Respondent shall make an accounting or list of furniture and
equipment in the conjugal house in Pitimini St., Capitolville
Subdivision, Bacolod City within 24 hours from receipt of the
Temporary Protection Order by his counsel;
c) Ordering the Chief of the Women's Desk of the Bacolod City
Police Headquarters to remove Respondent from the conjugal
dwelling within eight (8) hours from receipt of the Temporary
Protection Order by his counsel, and that he cannot return until 48
hours after the petitioners have left, so that the petitioner Rosalie
and her representatives can remove things from the conjugal
home and make an inventory of the household furniture,
equipment and other things in the conjugal home, which shall be
submitted to the Court.
d) Deliver full financial support of Php200,000.00 and
Php50,000.00 for rental and Php25,000.00 for clothes of the three
petitioners (sic) children within 24 hours from receipt of the
Temporary Protection Order by his counsel, otherwise be
declared in indirect contempt of Court;
e) That respondent surrender his two firearms and all unlicensed
firearms to the Clerk of Court within 24 hours from receipt of the
Temporary Protection Order by his counsel;
f) That respondent shall pay petitioner educational expenses of
the children upon presentation of proof of payment of such
expenses.23
Claiming that petitioner continued to deprive them of financial support;
failed to faithfully comply with the TPO; and committed new acts of
harassment against her and their children, private respondent filed another
application24 for the issuance of a TPO ex parte. She alleged inter
alia that petitioner contrived a replevin suit against himself by J-Bros
Trading, Inc., of which the latter was purportedly no longer president, with
the end in view of recovering the Nissan Patrol and Starex Van used by
private respondent and the children. A writ of replevin was served upon
private respondent by a group of six or seven policemen with long firearms
that scared the two small boys, Jessie Anthone and Joseph Eduard. 25
While Joseph Eduard, then three years old, was driven to school, two men
allegedly attempted to kidnap him, which incident traumatized the boy
resulting in his refusal to go back to school. On another occasion, petitioner
allegedly grabbed their daughter, Jo-Ann, by the arm and threatened
her.26 The incident was reported to the police, and Jo-Ann subsequently
filed a criminal complaint against her father for violation of R.A. 7610, also
known as the "Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act."
Aside from the replevin suit, petitioner's lawyers initiated the filing by the
housemaids working at the conjugal home of a complaint for kidnapping
and illegal detention against private respondent. This came about after
private respondent, armed with a TPO, went to said home to get her and her
children's belongings. Finding some of her things inside a housemaid's
(Sheryl Jamola) bag in the maids' room, private respondent filed a case for
qualified theft against Jamola.27
On August 23, 2006, the RTC issued a TPO,28 effective for thirty (30) days,
which reads as follows:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
1) Prohibited from threatening to commit or committing,
personally or through another, acts of violence against the
offended party;
2) Prohibited from harassing, annoying, telephoning, contacting
or otherwise communicating in any form with the offended party,
either directly or indirectly;
 3) Required to stay away, personally or through his friends,
relatives, employees or agents, from all the Petitioners Rosalie J.
Garcia and her children, Rosalie J. Garcia's three brothers, her
mother Primitiva Jaype, cook Novelita Caranzo, driver Romeo
Hontiveros, laundrywoman Mercedita Bornales, security guard
Darwin Gayona and the petitioner's other household helpers from
a distance of 1,000 meters, and shall not enter the gate of the
subdivision where the Petitioners are temporarily residing, as well
as from the schools of the three children; Furthermore, that
respondent shall not contact the schools of the children directly or
indirectly in any manner including, ostensibly to pay for their
tuition or other fees directly, otherwise he will have access to the
children through the schools and the TPO will be rendered
nugatory;
4) Directed to surrender all his firearms including .9MM caliber
firearm and a Walther PPK to the Court;
5) Directed to deliver in full financial support of Php200,000.00 a
month and Php50,000.00 for rental for the period from August 6
to September 6, 2006; and support in arrears from March 2006 to
August 2006 the total amount of Php1,312,000.00;
6) Directed to deliver educational expenses for 2006-2007 the
amount of Php75,000.00 and Php25,000.00;
7) Directed to allow the continued use of a Nissan Patrol with
Plate No. FEW 508 and a Starex van with Plate No. FFD 991 and
should the respondent fail to deliver said vehicles, respondent is
ordered to provide the petitioner another vehicle which is the one
taken by J Bros Tading;
8) Ordered not to dissipate, encumber, alienate, sell, lease or
otherwise dispose of the conjugal assets, or those real properties
in the name of Jesus Chua Garcia only and those in which the
conjugal partnership of gains of the Petitioner Rosalie J. Garcia
and respondent have an interest in, especially the conjugal home
located in No. 14, Pitimini St., Capitolville Subdivision, Bacolod
City, and other properties which are conjugal assets or those in
which the conjugal partnership of gains of Petitioner Rosalie J.
Garcia and the respondent have an interest in and listed in
Annexes "I," "I-1," and "I-2," including properties covered by
TCT Nos. T-186325 and T-168814;
9) Ordered that the Register of Deeds of Bacolod City and E.B.
Magalona shall be served a copy of this TEMPORARY
PROTECTION ORDER and are ordered not to allow the transfer,
sale, encumbrance or disposition of these above-cited properties
to any person, entity or corporation without the personal presence
of petitioner Rosalie J. Garcia, who shall affix her signature in the
presence of the Register of Deeds, due to the fear of petitioner
Rosalie that her signature will be forged in order to effect the
encumbrance or sale of these properties to defraud her or the
conjugal partnership of gains.
In its Order29 dated September 26, 2006, the trial court extended the
aforequoted TPO for another ten (10) days, and gave petitioner a period of
five (5) days within which to show cause why the TPO should not be
renewed, extended, or modified. Upon petitioner's manifestation, 30 however,
that he has not received a copy of private respondent's motion to
modify/renew the TPO, the trial court directed in its Order 31 dated October
6, 2006 that petitioner be furnished a copy of said motion. Nonetheless, an
Order32 dated a day earlier, October 5, had already been issued renewing the
TPO dated August 23, 2006. The pertinent portion is quoted hereunder:
xxxx
x x x it appearing further that the hearing could not yet be finally
terminated, the Temporary Protection Order issued on August 23, 2006 is
hereby renewed and extended for thirty (30) days and continuously
extended and renewed for thirty (30) days, after each expiration, until
further orders, and subject to such modifications as may be ordered by the
court.
After having received a copy of the foregoing Order, petitioner no longer
submitted the required comment to private respondent's motion for renewal
of the TPO arguing that it would only be an "exercise in futility." 33
Proceedings before the CA
During the pendency of Civil Case No. 06-797, petitioner filed before the
Court of Appeals (CA) a petition34 for prohibition (CA-G.R. CEB-SP. No.
01698), with prayer for injunction and temporary restraining order,
challenging (1) the constitutionality of R.A. 9262 for being violative of the
Page 44 of 60 CONSTI2 EQUAL PROTECTION
due process and the equal protection clauses, and (2) the validity of the
modified TPO issued in the civil case for being "an unwanted product of an
invalid law."
On May 26, 2006, the appellate court issued a 60-day Temporary
Restraining Order36 (TRO) against the enforcement of the TPO, the
amended TPOs and other orders pursuant thereto.
Subsequently, however, on January 24, 2007, the appellate court
dismissed36 the petition for failure of petitioner to raise the constitutional
issue in his pleadings before the trial court in the civil case, which is clothed
with jurisdiction to resolve the same. Secondly, the challenge to the validity
of R.A. 9262 through a petition for prohibition seeking to annul the
protection orders issued by the trial court constituted a collateral attack on
said law.
His motion for reconsideration of the foregoing Decision having been
denied in the Resolution37 dated August 14, 2007, petitioner is now before
us alleging that –
The Issues
I.
THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION
ON THE THEORY THAT THE ISSUE OF CONSTITUTIONALITY WAS
NOT RAISED AT THE EARLIEST OPPORTUNITY AND THAT, THE
PETITION CONSTITUTES A COLLATERAL ATTACK ON THE
VALIDITY OF THE LAW.
II.
THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN
FAILING TO CONCLUDE THAT R.A. 9262 IS DISCRIMINATORY,
UNJUST, AND VIOLATIVE OF THE EQUAL PROTECTION CLAUSE.
III.
THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT
FINDING THAT R.A. 9262 RUNS COUNTER TO THE DUE PROCESS
CLAUSE OF THE CONSTITUTION.
IV.
THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE
LAW DOES VIOLENCE TO THE POLICY OF THE STATE TO
PROTECT THE FAMILY AS A BASIC SOCIAL INSTITUTION.
V.
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING
R.A. No. 9262 AS INVALID AND UNCONSTITUTIONAL BECAUSE IT
ALLOWS AN UNDUE DELEGATION OF JUDICIAL POWER TO THE
BARANGAY OFFICIALS.38
The Ruling of the Court
Before delving into the arguments propounded by petitioner against the
constitutionality of R.A. 9262, we shall first tackle the propriety of the
dismissal by the appellate court of the petition for prohibition (CA-G.R.
CEB-SP. No. 01698) filed by petitioner.
As a general rule, the question of constitutionality must be raised at the
earliest opportunity so that if not raised in the pleadings, ordinarily it may
not be raised in the trial, and if not raised in the trial court, it will not be
considered on appeal.39 Courts will not anticipate a question of
constitutional law in advance of the necessity of deciding it. 40
In defending his failure to attack the constitutionality of R.A. 9262 before
the RTC of Bacolod City, petitioner argues that the Family Court has
limited authority and jurisdiction that is "inadequate to tackle the complex
issue of constitutionality."41
We disagree.
Family Courts have authority and jurisdiction to consider the
constitutionality of a statute.
At the outset, it must be stressed that Family Courts are special courts, of
the same level as Regional Trial Courts. Under R.A. 8369, otherwise known
as the "Family Courts Act of 1997," family courts have exclusive original
jurisdiction to hear and decide cases of domestic violence against women
and children.42 In accordance with said law, the Supreme Court designated
from among the branches of the Regional Trial Courts at least one Family
Court in each of several key cities identified.43 To achieve harmony with the
first mentioned law, Section 7 of R.A. 9262 now provides that Regional
Trial Courts designated as Family Courts shall have original and exclusive
jurisdiction over cases of VAWC defined under the latter law, viz:
SEC. 7. Venue. – The Regional Trial Court designated as a Family Court
shall have original and exclusive jurisdiction over cases of violence against
women and their children under this law. In the absence of such court in the
place where the offense was committed, the case shall be filed in the
Regional Trial Court where the crime or any of its elements was committed
at the option of the complainant. (Emphasis supplied)
Inspite of its designation as a family court, the RTC of Bacolod City
remains possessed of authority as a court of general original jurisdiction to
pass upon all kinds of cases whether civil, criminal, special proceedings,
land registration, guardianship, naturalization, admiralty or insolvency. 44 It
is settled that RTCs have jurisdiction to resolve the constitutionality of a
statute,45 "this authority being embraced in the general definition of the
judicial power to determine what are the valid and binding laws by the
criterion of their conformity to the fundamental law."46The Constitution
vests the power of judicial review or the power to declare the
constitutionality or validity of a law, treaty, international or executive
agreement, presidential decree, order, instruction, ordinance, or regulation
not only in this Court, but in all RTCs.47 We said in J.M. Tuason and Co.,
Inc. v. CA48 that, "plainly the Constitution contemplates that the inferior
courts should have jurisdiction in cases involving constitutionality of any
treaty or law, for it speaks of appellate review of final judgments of inferior
courts in cases where such constitutionality happens to be in issue." Section
5, Article VIII of the 1987 Constitution reads in part as follows:
SEC. 5. The Supreme Court shall have the following powers:
xxx
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the
law or the Rules of Court may provide, final judgments and orders of lower
courts in:
a. All cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree, proclamation,
order, instruction, ordinance, or regulation is in question.
xxxx
Thus, contrary to the posturing of petitioner, the issue of constitutionality of
R.A. 9262 could have been raised at the earliest opportunity in his
Opposition to the petition for protection order before the RTC of Bacolod
City, which had jurisdiction to determine the same, subject to the review of
this Court.
Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women
and Their Children, lays down a new kind of procedure requiring the
respondent to file an opposition to the petition and not an answer. 49 Thus:
SEC. 20. Opposition to petition. – (a) The respondent may file an opposition
to the petition which he himself shall verify. It must be accompanied by the
affidavits of witnesses and shall show cause why a temporary or permanent
protection order should not be issued.
(b) Respondent shall not include in the opposition any counterclaim, cross-
claim or third-party complaint, but any cause of action which could be the
subject thereof may be litigated in a separate civil action. (Emphasis
supplied)
We cannot subscribe to the theory espoused by petitioner that, since a
counterclaim, cross-claim and third-party complaint are to be excluded from
the opposition, the issue of constitutionality cannot likewise be raised
therein. A counterclaim is defined as any claim for money or other relief
which a defending party may have against an opposing party. 50 A cross-
claim, on the other hand, is any claim by one party against a co-party arising
out of the transaction or occurrence that is the subject matter either of the
original action or of a counterclaim therein.51Finally, a third-party complaint
is a claim that a defending party may, with leave of court, file against a
person not a party to the action for contribution, indemnity, subrogation or
any other relief, in respect of his opponent's claim. 52As pointed out by
Justice Teresita J. Leonardo-De Castro, the unconstitutionality of a statute is
not a cause of action that could be the subject of a counterclaim, cross-claim
or a third-party complaint. Therefore, it is not prohibited from being raised
Page 45 of 60 CONSTI2 EQUAL PROTECTION
in the opposition in view of the familiar maxim expressio unius est exclusio
alterius.
Moreover, it cannot be denied that this issue affects the resolution of the
case a quo because the right of private respondent to a protection order is
founded solely on the very statute the validity of which is being
attacked53 by petitioner who has sustained, or will sustain, direct injury as a
result of its enforcement. The alleged unconstitutionality of R.A. 9262 is,
for all intents and purposes, a valid cause for the non-issuance of a
protection order.
That the proceedings in Civil Case No. 06-797 are summary in nature
should not have deterred petitioner from raising the same in his Opposition.
The question relative to the constitutionality of a statute is one of law which
does not need to be supported by evidence.54 Be that as it may, Section 25 of
A.M. No. 04-10-11-SC nonetheless allows the conduct of a hearing to
determine legal issues, among others, viz:
SEC. 25. Order for further hearing. - In case the court determines the need
for further hearing, it may issue an order containing the following:
(a) Facts undisputed and admitted;
(b) Factual and legal issues to be resolved;
(c) Evidence, including objects and documents that have been
marked and will be presented;
(d) Names of witnesses who will be ordered to present their direct
testimonies in the form of affidavits; and
(e) Schedule of the presentation of evidence by both parties
which shall be done in one day, to the extent possible, within the
30-day period of the effectivity of the temporary protection order
issued. (Emphasis supplied)
To obviate potential dangers that may arise concomitant to the conduct of a
hearing when necessary, Section 26 (b) of A.M. No. 04-10-11-SC provides
that if a temporary protection order issued is due to expire, the trial court
may extend or renew the said order for a period of thirty (30) days each time
until final judgment is rendered. It may likewise modify the extended or
renewed temporary protection order as may be necessary to meet the needs
of the parties. With the private respondent given ample protection, petitioner
could proceed to litigate the constitutional issues, without necessarily
running afoul of the very purpose for the adoption of the rules on summary
procedure.
In view of all the foregoing, the appellate court correctly dismissed the
petition for prohibition with prayer for injunction and temporary restraining
order (CA-G.R. CEB - SP. No. 01698). Petitioner may have proceeded upon
an honest belief that if he finds succor in a superior court, he could be
granted an injunctive relief. However, Section 22(j) of A.M. No. 04-10-11-
SC expressly disallows the filing of a petition for certiorari, mandamus or
prohibition against any interlocutory order issued by the trial court. Hence,
the 60-day TRO issued by the appellate court in this case against the
enforcement of the TPO, the amended TPOs and other orders pursuant
thereto was improper, and it effectively hindered the case from taking its
normal course in an expeditious and summary manner.
As the rules stand, a review of the case by appeal or certiorari before
judgment is prohibited. Moreover, if the appeal of a judgment granting
permanent protection shall not stay its enforcement,55 with more reason that
a TPO, which is valid only for thirty (30) days at a time, 56 should not be
enjoined.
The mere fact that a statute is alleged to be unconstitutional or invalid, does
not of itself entitle a litigant to have the same enjoined.57 In Younger v.
Harris, Jr.,58 the Supreme Court of the United States declared, thus:
Federal injunctions against state criminal statutes, either in their entirety or
with respect to their separate and distinct prohibitions, are not to be granted
as a matter of course, even if such statutes are unconstitutional. No citizen
or member of the community is immune from prosecution, in good faith, for
his alleged criminal acts. The imminence of such a prosecution even though
alleged to be unauthorized and, hence, unlawful is not alone ground for
relief in equity which exerts its extraordinary powers only to prevent
irreparable injury to the plaintiff who seeks its aid. (Citations omitted)
The sole objective of injunctions is to preserve the status quo until the trial
court hears fully the merits of the case. It bears stressing, however, that
protection orders are granted ex parte so as to protect women and their
children from acts of violence. To issue an injunction against such orders
will defeat the very purpose of the law against VAWC.
Notwithstanding all these procedural flaws, we shall not shirk from our
obligation to determine novel issues, or issues of first impression, with far-
reaching implications. We have, time and again, discharged our solemn duty
as final arbiter of constitutional issues, and with more reason now, in view
of private respondent's plea in her Comment59 to the instant Petition that we
should put the challenge to the constitutionality of R.A. 9262 to rest. And so
we shall.
Intent of Congress in enacting R.A. 9262.
Petitioner claims that since R.A. 9262 is intended to prevent and criminalize
spousal and child abuse, which could very well be committed by either the
husband or the wife, gender alone is not enough basis to deprive the
husband/father of the remedies under the law.60
A perusal of the deliberations of Congress on Senate Bill No. 2723, 61 which
became R.A. 9262, reveals that while the sponsor, Senator Luisa Pimentel-
Ejercito (better known as Senator Loi Estrada), had originally proposed
what she called a "synthesized measure"62 – an amalgamation of two
measures, namely, the "Anti-Domestic Violence Act" and the "Anti-Abuse
of Women in Intimate Relationships Act"63 – providing protection to "all
family members, leaving no one in isolation" but at the same time giving
special attention to women as the "usual victims" of violence and
abuse,64 nonetheless, it was eventually agreed that men be denied protection
under the same measure. We quote pertinent portions of the deliberations:
Wednesday, December 10, 2003
Senator Pangilinan. I just wanted to place this on record, Mr. President.
Some women's groups have expressed concerns and relayed these concerns
to me that if we are to include domestic violence apart from against women
as well as other members of the household, including children or the
husband, they fear that this would weaken the efforts to address domestic
violence of which the main victims or the bulk of the victims really are the
wives, the spouses or the female partners in a relationship. We would like to
place that on record. How does the good Senator respond to this kind of
observation?
Senator Estrada. Yes, Mr. President, there is this group of women who call
themselves "WIIR" Women in Intimate Relationship. They do not want to
include men in this domestic violence. But plenty of men are also being
abused by women. I am playing safe so I placed here members of the
family, prescribing penalties therefor and providing protective measures for
victims. This includes the men, children, live-in, common-law wives, and
those related with the family.65
xxx
Wednesday, January 14, 2004
xxxx
The President Pro Tempore. x x x
Also, may the Chair remind the group that there was the discussion whether
to limit this to women and not to families which was the issue of the AWIR
group. The understanding that I have is that we would be having a broader
scope rather than just women, if I remember correctly, Madam sponsor.
Senator Estrada. Yes, Mr. President.
As a matter of fact, that was brought up by Senator Pangilinan during the
interpellation period.
I think Senator Sotto has something to say to that.
Senator Legarda. Mr. President, the reason I am in support of the measure.
Do not get me wrong. However, I believe that there is a need to protect
women's rights especially in the domestic environment.
As I said earlier, there are nameless, countless, voiceless women who have
not had the opportunity to file a case against their spouses, their live-in
partners after years, if not decade, of battery and abuse. If we broaden the
scope to include even the men, assuming they can at all be abused by the
women or their spouses, then it would not equalize the already difficult
situation for women, Mr. President.
I think that the sponsor, based on our earlier conversations, concurs with
this position. I am sure that the men in this Chamber who love their women
in their lives so dearly will agree with this representation. Whether we like it
or not, it is an unequal world. Whether we like it or not, no matter how
empowered the women are, we are not given equal opportunities especially
Page 46 of 60 CONSTI2 EQUAL PROTECTION
in the domestic environment where the macho Filipino man would always
feel that he is stronger, more superior to the Filipino woman.
xxxx
The President Pro Tempore. What does the sponsor say?
Senator Estrada. Mr. President, before accepting this, the committee came
up with this bill because the family members have been included in this
proposed measure since the other members of the family other than women
are also possible victims of violence. While women are most likely the
intended victims, one reason incidentally why the measure focuses on
women, the fact remains that in some relatively few cases, men also stand to
be victimized and that children are almost always the helpless victims of
violence. I am worried that there may not be enough protection extended to
other family members particularly children who are excluded. Although
Republic Act No. 7610, for instance, more or less, addresses the special
needs of abused children. The same law is inadequate. Protection orders for
one are not available in said law.
I am aware that some groups are apprehensive about granting the same
protection to men, fearing that they may use this law to justify their abusive
behavior against women. However, we should also recognize that there are
established procedures and standards in our courts which give credence to
evidentiary support and cannot just arbitrarily and whimsically entertain
baseless complaints.
Mr. President, this measure is intended to harmonize family relations and to
protect the family as the basic social institution. Though I recognize the
unequal power relations between men and women in our society, I believe
we have an obligation to uphold inherent rights and dignity of both husband
and wife and their immediate family members, particularly children.
While I prefer to focus mainly on women, I was compelled to include other
family members as a critical input arrived at after a series of
consultations/meetings with various NGOs, experts, sports groups and other
affected sectors, Mr. President.
Senator Sotto. Mr. President.
The President Pro Tempore. Yes, with the permission of the other senators.
Senator Sotto. Yes, with the permission of the two ladies on the Floor.
The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.
Senator Sotto. I presume that the effect of the proposed amendment of
Senator Legarda would be removing the "men and children" in this
particular bill and focus specifically on women alone. That will be the net
effect of that proposed amendment. Hearing the rationale mentioned by the
distinguished sponsor, Sen. Luisa "Loi" Ejercito Estrada, I am not sure now
whether she is inclined to accept the proposed amendment of Senator
Legarda.
I am willing to wait whether she is accepting this or not because if she is
going to accept this, I will propose an amendment to the amendment rather
than object to the amendment, Mr. President.
xxxx
Senator Estrada. The amendment is accepted, Mr. President.
The President Pro Tempore. Is there any objection?
xxxx
Senator Sotto. x x x May I propose an amendment to the amendment.
The President Pro Tempore. Before we act on the amendment?
Senator Sotto. Yes, Mr. President.
The President Pro Tempore. Yes, please proceed.
Senator Sotto. Mr. President, I am inclined to believe the rationale used by
the distinguished proponent of the amendment. As a matter of fact, I tend to
agree. Kung may maaabuso, mas malamang iyong babae kaysa sa lalake. At
saka iyong mga lalake, puwede na talagang magulpi iyan. Okey lang iyan.
But I cannot agree that we remove the children from this particular measure.
So, if I may propose an amendment –
The President Pro Tempore. To the amendment.
Senator Sotto. – more than the women, the children are very much abused.
As a matter of fact, it is not limited to minors. The abuse is not limited to
seven, six, 5-year-old children. I have seen 14, 15-year-old children being
abused by their fathers, even by their mothers. And it breaks my heart to
find out about these things.
Because of the inadequate existing law on abuse of children, this particular
measure will update that. It will enhance and hopefully prevent the abuse of
children and not only women.
SOTTO-LEGARDA AMENDMENTS
Therefore, may I propose an amendment that, yes, we remove the aspect of
the men in the bill but not the children.
Senator Legarda. I agree, Mr. President, with the Minority Leader.
The President Pro Tempore. Effectively then, it will be women AND
CHILDREN.
Senator Sotto. Yes, Mr. President.
Senator Estrada. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection? [Silence] There being
none, the amendment, as amended, is approved.66
It is settled that courts are not concerned with the wisdom, justice, policy, or
expediency of a statute.67 Hence, we dare not venture into the real
motivations and wisdom of the members of Congress in limiting the
protection against violence and abuse under R.A. 9262 to women and
children only. No proper challenge on said grounds may be entertained in
this proceeding. Congress has made its choice and it is not our prerogative
to supplant this judgment. The choice may be perceived as erroneous but
even then, the remedy against it is to seek its amendment or repeal by the
legislative. By the principle of separation of powers, it is the legislative that
determines the necessity, adequacy, wisdom and expediency of any
law.68 We only step in when there is a violation of the Constitution.
However, none was sufficiently shown in this case.
R.A. 9262 does not violate the guaranty of equal protection of the laws.
Equal protection simply requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and responsibilities
imposed. The oft-repeated disquisition in the early case of Victoriano v.
Elizalde Rope Workers' Union69 is instructive:
The guaranty of equal protection of the laws is not a guaranty of equality in
the application of the laws upon all citizens of the state. It is not, therefore, a
requirement, in order to avoid the constitutional prohibition against
inequality, that every man, woman and child should be affected alike by a
statute. Equality of operation of statutes does not mean indiscriminate
operation on persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not identity of
rights. The Constitution does not require that things which are different in
fact be treated in law as though they were the same. The equal protection
clause does not forbid discrimination as to things that are different. It does
not prohibit legislation which is limited either in the object to which it is
directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or practice
because they agree with one another in certain particulars. A law is not
invalid because of simple inequality. The very idea of classification is that
of inequality, so that it goes without saying that the mere fact of inequality
in no manner determines the matter of constitutionality. All that is required
of a valid classification is that it be reasonable, which means that the
classification should be based on substantial distinctions which make for
real differences; that it must be germane to the purpose of the law; that it
must not be limited to existing conditions only; and that it must apply
equally to each member of the class. This Court has held that the standard is
satisfied if the classification or distinction is based on a reasonable
foundation or rational basis and is not palpably arbitrary. (Emphasis
supplied)
Measured against the foregoing jurisprudential yardstick, we find that R.A.
9262 is based on a valid classification as shall hereinafter be discussed and,
Page 47 of 60 CONSTI2 EQUAL PROTECTION
as such, did not violate the equal protection clause by favoring women over
men as victims of violence and abuse to whom the State extends its
protection.
I. R.A. 9262 rests on substantial distinctions.
The unequal power relationship between women and men; the fact that
women are more likely than men to be victims of violence; and the
widespread gender bias and prejudice against women all make for real
differences justifying the classification under the law. As Justice McIntyre
succinctly states, "the accommodation of differences ... is the essence of true
equality."70
A. Unequal power relationship between men and women
According to the Philippine Commission on Women (the National
Machinery for Gender Equality and Women's Empowerment), violence
against women (VAW) is deemed to be closely linked with the unequal
power relationship between women and men otherwise known as "gender-
based violence". Societal norms and traditions dictate people to think men
are the leaders, pursuers, providers, and take on dominant roles in society
while women are nurturers, men's companions and supporters, and take on
subordinate roles in society. This perception leads to men gaining more
power over women. With power comes the need to control to retain that
power. And VAW is a form of men's expression of controlling women to
retain power.71
The United Nations, which has long recognized VAW as a human rights
issue, passed its Resolution 48/104 on the Declaration on Elimination of
Violence Against Women on December 20, 1993 stating that "violence
against women is a manifestation of historically unequal power relations
between men and women, which have led to domination over and
discrimination against women by men and to the prevention of the full
advancement of women, and that violence against women is one of the
crucial social mechanisms by which women are forced into subordinate
positions, compared with men."72
Then Chief Justice Reynato S. Puno traced the historical and social context
of gender-based violence and developments in advocacies to eradicate
VAW, in his remarks delivered during the Joint Launching of R.A. 9262
and its Implementing Rules last October 27, 2004, the pertinent portions of
which are quoted hereunder:
History reveals that most societies sanctioned the use of violence against
women. The patriarch of a family was accorded the right to use force on
members of the family under his control. I quote the early studies:
Traditions subordinating women have a long history rooted in patriarchy –
the institutional rule of men. Women were seen in virtually all societies to
be naturally inferior both physically and intellectually. In ancient Western
societies, women whether slave, concubine or wife, were under the authority
of men. In law, they were treated as property.
The Roman concept of patria potestas allowed the husband to beat, or even
kill, his wife if she endangered his property right over her. Judaism,
Christianity and other religions oriented towards the patriarchal family
strengthened the male dominated structure of society.
English feudal law reinforced the tradition of male control over women.
Even the eminent Blackstone has been quoted in his commentaries as saying
husband and wife were one and that one was the husband. However, in the
late 1500s and through the entire 1600s, English common law began to limit
the right of husbands to chastise their wives. Thus, common law developed
the rule of thumb, which allowed husbands to beat their wives with a rod or
stick no thicker than their thumb.
In the later part of the 19th century, legal recognition of these rights to
chastise wives or inflict corporeal punishment ceased. Even then, the
preservation of the family was given more importance than preventing
violence to women.
The metamorphosis of the law on violence in the United States followed
that of the English common law. In 1871, the Supreme Court of Alabama
became the first appellate court to strike down the common law right of a
husband to beat his wife:
The privilege, ancient though it may be, to beat one's wife with a stick, to
pull her hair, choke her, spit in her face or kick her about the floor, or to
inflict upon her like indignities, is not now acknowledged by our law... In
person, the wife is entitled to the same protection of the law that the
husband can invoke for himself.
As time marched on, the women's advocacy movement became more abused/maltreated cases out of the total of 5,608 cases. xxx (T)here are
organized. The temperance leagues initiated it. These leagues had a simple 1,091 DSWD cases out of a total number of 3,471 cases for the first
focus. They considered the evils of alcoholism as the root cause of wife semester of 2003. Female violence comprised more than 90% of all forms of
abuse. Hence, they demonstrated and picketed saloons, bars and their abuse and violence and more than 90% of these reported cases were
husbands' other watering holes. Soon, however, their crusade was joined by committed by the women's intimate partners such as their husbands and
suffragette movements, expanding the liberation movement's agenda. They live-in partners.73
fought for women's right to vote, to own property, and more. Since then, the
feminist movement was on the roll. Recently, the Philippine Commission on Women presented comparative
statistics on violence against women across an eight-year period from 2004
The feminist movement exposed the private invisibility of the domestic to August of 2011 with violations under R.A. 9262 ranking first among the
violence to the public gaze. They succeeded in transforming the issue into different VAW categories since its implementation in 2004,74 thus:
an important public concern. No less than the United States Supreme Court,
in 1992 case Planned Parenthood v. Casey, noted: Table 1. Annual Comparative Statistics on Violence Against Women, 2004
- 2011*
In an average 12-month period in this country, approximately two million
women are the victims of severe assaults by their male partners. In a 1985
survey, women reported that nearly one of every eight husbands had
assaulted their wives during the past year. The [American Reported Medical
2004 2005 2006 2007 2008 2009 2010
Cases because the
Association] views these figures as "marked underestimates,"
nature of these incidents discourages women from reporting them, and
because surveys typically exclude the very poor, those who do not speak
English well, and women who are homeless or in institutionsRape or hospitals 997 927 659 837 811 770 1,042
when the survey is conducted. According to the AMA, "researchers on
family violence agree that the true incidence of partner violence is probably
double the above estimates; or four million severely assaulted women per
year." Incestuous Rape 38 46 26 22 28 27 19

Studies on prevalence suggest that from one-fifth to one-third of all women

Attempted
will be physically assaulted by a partner or ex-partner during Rape
their lifetime... 194 148 185 147 204 167 268
Thus on an average day in the United States, nearly 11,000 women are
severely assaulted by their male partners. Many of these incidents involve
sexual assault... In families where wife beating takes place, moreover, child
Acts of
abuse is often present as well. 580 536 382 358 445 485 745
Lasciviousness

Other studies fill in the rest of this troubling picture. Physical violence is
only the most visible form of abuse. Psychological abuse, Physicalparticularly
forced social and economic isolation of women, is also common. 3,553 2,335 1,892 1,505 1,307 1,498 2,018
Injuries

Many victims of domestic violence remain with their abusers, perhaps

because they perceive no superior alternative...Many abused
Sexualwomen who
find temporary refuge in shelters return to their husbands, in large part 53 37 38 46 18 54 83
Harassment
because they have no other source of income... Returning to one's abuser
can be dangerous. Recent Federal Bureau of Investigation statistics disclose
that 8.8 percent of all homicide victims in the United States are killed by
their spouses...Thirty percent of female homicide victims RA
are 9262
killed by their 218 924 1,269 2,387 3,599 5,285 9,974
male partners.

Finally in 1994, the United States Congress enacted theThreats

Violence Against 319 223 199 182 220 208 374
Women Act.

Seduction
In the International front, the women's struggle for equality was no less 62 19 29 30 19 19 25
successful. The United States Charter and the Universal Declaration of
Human Rights affirmed the equality of all human beings. In 1979, the UN
General Assembly adopted the landmark Convention on Concubinage
the Elimination of 121 102 93 109 109 99 158
all Forms of Discrimination Against Women (CEDAW). In 1993, the UN
General Assembly also adopted the Declaration on the Elimination of
Violence Against Women. World conferences on the role and rights of
RA 9208
women have been regularly held in Mexico City, Copenhagen, Nairobi and 17 11 16 24 34 152 190
Beijing. The UN itself established a Commission on the Status of Women.

The Philippines has been in cadence with the half – andAbduction

full – steps of all 16 34 23 28 18 25 22
/Kidnapping
these women's movements. No less than Section 14, Article II of our 29
1987
Constitution mandates the State to recognize the role of women in nation
building and to ensure the fundamental equality before the law of women
and men. Our Senate has ratified the CEDAW as well as Unjust
the Convention
Vexationon 90 50 59 59 83 703 183
the Rights of the Child and its two protocols. To cap it all, Congress, on
March 8, 2004, enacted Rep. Act No. 9262, entitled "An Act Defining
Violence Against Women and Their Children, Providing for Protective
Total 6,271 5,374 4,881 5,729 6,905 9,485 15,104
Measures for Victims, Prescribing Penalties therefor and for other
Purposes." (Citations omitted)

B. Women are the "usual" and "most likely" *2011 report covers only from January to August

victims of violence.
At the time of the presentation of Senate Bill No. 2723, official statistics on
violence against women and children show that –
x x x physical injuries had the highest number of cases at 5,058 in 2002
representing 55.63% of total cases reported (9,903). And for the first
semester of 2003, there were 2,381 reported cases out of 4,354 cases which
represent 54.31%. xxx (T)he total number of women in especially difficult
circumstances served by the Department of Social Welfare and
Development (DSWD) for the year 2002, there are 1,417 physically
Page 48 of 60 CONSTI2 EQUAL PROTECTION
Source: Philippine National Police – Women and Children Protection
Center (WCPC)
On the other hand, no reliable estimates may be obtained on domestic abuse
and violence against men in the Philippines because incidents thereof are
relatively low and, perhaps, because many men will not even attempt to
report the situation. In the United Kingdom, 32% of women who had ever
experienced domestic violence did so four or five (or more) times,
compared with 11% of the smaller number of men who had ever
experienced domestic violence; and women constituted 89% of all those
who had experienced 4 or more incidents of domestic violence.75Statistics in
Canada show that spousal violence by a woman against a man is less likely
to cause injury than the other way around (18 percent versus 44 percent).
Men, who experience violence from their spouses are much less likely to
live in fear of violence at the hands of their spouses, and much less likely to
experience sexual assault. In fact, many cases of physical violence by a
woman against a spouse are in self-defense or the result of many years of
physical or emotional abuse.76
While there are, indeed, relatively few cases of violence and abuse
perpetrated against men in the Philippines, the same cannot render R.A.
9262 invalid.
In a 1960 case involving the violation of a city ordinance requiring drivers
of animal-drawn vehicles to pick up, gather and deposit in receptacles the
manure emitted or discharged by their vehicle-drawing animals in any
public highways, streets, plazas, parks or alleys, said ordinance was
challenged as violative of the guaranty of equal protection of laws as its
application is limited to owners and drivers of vehicle-drawing animals and
not to those animals, although not utilized, but similarly pass through the
same streets.
The ordinance was upheld as a valid classification for the reason that, while
there may be non-vehicle-drawing animals that also traverse the city roads,
"but their number must be negligible and their appearance therein merely
occasional, compared to the rig-drawing ones, as not to constitute a menace
to the health of the community."77 The mere fact that the legislative
classification may result in actual inequality is not violative of the right to
equal protection, for every classification of persons or things for regulation
by law produces inequality in some degree, but the law is not thereby
rendered invalid.78
C. Gender bias and prejudices
From the initial report to the police through prosecution, trial, and
sentencing, crimes against women are often treated differently and less
seriously than other crimes. This was argued by then United States Senator
Joseph R. Biden, Jr., now Vice President, chief sponsor of the Violence
Against Women Act (VAWA), in defending the civil rights remedy as a
valid exercise of the U.S. Congress' authority under the Commerce and
Equal Protection Clauses. He stressed that the widespread gender bias in the
U.S. has institutionalized historic prejudices against victims of rape or
domestic violence, subjecting them to "double victimization" – first at the
hands of the offender and then of the legal system.79
Our own Senator Loi Estrada lamented in her Sponsorship Speech for
Senate Bill No. 2723 that "(w)henever violence occurs in the family, the
police treat it as a private matter and advise the parties to settle the conflict
themselves. Once the complainant brings the case to the prosecutor, the
latter is hesitant to file the complaint for fear that it might later be
withdrawn. This lack of response or reluctance to be involved by the police
and prosecution reinforces the escalating, recurring and often serious nature
of domestic violence."80
Sadly, our own courts, as well, have exhibited prejudices and biases against
our women.
In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio
J. Amila for Conduct Unbecoming of a Judge. He used derogatory and
irreverent language in reference to the complainant in a petition for TPO
and PPO under R.A. 9262, calling her as "only a live-in partner" and
presenting her as an "opportunist" and a "mistress" in an "illegitimate
relationship." Judge Amila even called her a "prostitute," and accused her of
being motivated by "insatiable greed" and of absconding with the contested
property.81 Such remarks betrayed Judge Amila's prejudices and lack of
gender sensitivity.
The enactment of R.A. 9262 aims to address the discrimination brought
about by biases and prejudices against women. As emphasized by the
CEDAW Committee on the Elimination of Discrimination against Women,
addressing or correcting discrimination through specific measures focused
on women does not discriminate against men.82Petitioner's
contention,83 therefore, that R.A. 9262 is discriminatory and that it is an
"anti-male," "husband-bashing," and "hate-men" law deserves scant
consideration. As a State Party to the CEDAW, the Philippines bound itself
to take all appropriate measures "to modify the social and cultural patterns
of conduct of men and women, with a view to achieving the elimination of
prejudices and customary and all other practices which are based on the idea
of the inferiority or the superiority of either of the sexes or on stereotyped
roles for men and women."84 Justice Puno correctly pointed out that "(t)he
paradigm shift changing the character of domestic violence from a private
affair to a public offense will require the development of a distinct mindset
on the part of the police, the prosecution and the judges."85
II. The classification is germane to the purpose of the law.
Page 49 of 60 CONSTI2 EQUAL PROTECTION
The distinction between men and women is germane to the purpose of R.A.
9262, which is to address violence committed against women and children,
spelled out in its Declaration of Policy, as follows:
SEC. 2. Declaration of Policy. – It is hereby declared that the State values
the dignity of women and children and guarantees full respect for human
rights. The State also recognizes the need to protect the family and its
members particularly women and children, from violence and threats to
their personal safety and security.
Towards this end, the State shall exert efforts to address violence committed
against women and children in keeping with the fundamental freedoms
guaranteed under the Constitution and the provisions of the Universal
Declaration of Human Rights, the Convention on the Elimination of All
Forms of Discrimination Against Women, Convention on the Rights of the
Child and other international human rights instruments of which the
Philippines is a party.
In 1979, the U.N. General Assembly adopted the CEDAW, which the
Philippines ratified on August 5, 1981. Subsequently, the Optional Protocol
to the CEDAW was also ratified by the Philippines on October 6,
2003.86 This Convention mandates that State parties shall accord to women
equality with men before the law87 and shall take all appropriate measures to
eliminate discrimination against women in all matters relating to marriage
and family relations on the basis of equality of men and women. 88 The
Philippines likewise ratified the Convention on the Rights of the Child and
its two protocols.89 It is, thus, bound by said Conventions and their
respective protocols.
III. The classification is not limited to existing
conditions only, and apply equally to all members
Moreover, the application of R.A. 9262 is not limited to the existing
conditions when it was promulgated, but to future conditions as well, for as
long as the safety and security of women and their children are threatened
by violence and abuse.
R.A. 9262 applies equally to all women and children who suffer violence
and abuse. Section 3 thereof defines VAWC as:
x x x any act or a series of acts committed by any person against a woman
who is his wife, former wife, or against a woman with whom the person has
or had a sexual or dating relationship, or with whom he has a common child,
or against her child whether legitimate or illegitimate, within or without the
family abode, which result in or is likely to result in physical, sexual,
psychological harm or suffering, or economic abuse including threats of
such acts, battery, assault, coercion, harassment or arbitrary deprivation of
liberty. It includes, but is not limited to, the following acts:
A. "Physical Violence" refers to acts that include bodily or physical harm;
B. "Sexual violence" refers to an act which is sexual in nature, committed
against a woman or her child. It includes, but is not limited to:
a) rape, sexual harassment, acts of lasciviousness,
treating a woman or her child as a sex object, making
demeaning and sexually suggestive remarks, physically
attacking the sexual parts of the victim's body, forcing
her/him to watch obscene publications and indecent
shows or forcing the woman or her child to do indecent
acts and/or make films thereof, forcing the wife and
mistress/lover to live in the conjugal home or sleep
together in the same room with the abuser;
b) acts causing or attempting to cause the victim to
engage in any sexual activity by force, threat of force,
physical or other harm or threat of physical or other
harm or coercion;
c) Prostituting the woman or child.
C. "Psychological violence" refers to acts or omissions causing or likely to
cause mental or emotional suffering of the victim such as but not limited to
intimidation, harassment, stalking, damage to property, public ridicule or
humiliation, repeated verbal abuse and marital infidelity. It includes causing
or allowing the victim to witness the physical, sexual or psychological abuse
of a member of the family to which the victim belongs, or to witness
pornography in any form or to witness abusive injury to pets or to unlawful
or unwanted deprivation of the right to custody and/or visitation of common
children.
D. "Economic abuse" refers to acts that make or attempt to make a woman
financially dependent which includes, but is not limited to the following:
1. withdrawal of financial support or preventing the
victim from engaging in any legitimate profession,
occupation, business or activity, except in cases
wherein the other spouse/partner objects on valid,
serious and moral grounds as defined in Article 73 of
the Family Code;
2. deprivation or threat of deprivation of financial
resources and the right to the use and enjoyment of the
conjugal, community or property owned in common;
3. destroying household property;
4. controlling the victims' own money or properties or
solely controlling the conjugal money or properties.
It should be stressed that the acts enumerated in the aforequoted provision
are attributable to research that has exposed the dimensions and dynamics of
battery. The acts described here are also found in the U.N. Declaration on
the Elimination of Violence Against Women.90 Hence, the argument
advanced by petitioner that the definition of what constitutes abuse removes
the difference between violent action and simple marital tiffs is tenuous.
There is nothing in the definition of VAWC that is vague and ambiguous
that will confuse petitioner in his defense. The acts enumerated above are
easily understood and provide adequate contrast between the innocent and
the prohibited acts. They are worded with sufficient definiteness that
persons of ordinary intelligence can understand what conduct is prohibited,
and need not guess at its meaning nor differ in its application. 91 Yet,
petitioner insists92that phrases like "depriving or threatening to deprive the
woman or her child of a legal right," "solely controlling the conjugal or
common money or properties," "marital infidelity," and "causing mental or
emotional anguish" are so vague that they make every quarrel a case of
spousal abuse. However, we have stressed that the "vagueness" doctrine
merely requires a reasonable degree of certainty for the statute to be upheld
– not absolute precision or mathematical exactitude, as petitioner seems to
suggest. Flexibility, rather than meticulous specificity, is permissible as long
as the metes and bounds of the statute are clearly delineated. An act will not
be held invalid merely because it might have been more explicit in its
wordings or detailed in its provisions.93
There is likewise no merit to the contention that R.A. 9262 singles out the
husband or father as the culprit. As defined above, VAWC may likewise be
committed "against a woman with whom the person has or had a sexual or
dating relationship." Clearly, the use of the gender-neutral word "person"
who has or had a sexual or dating relationship with the woman encompasses
even lesbian relationships. Moreover, while the law provides that the
offender be related or connected to the victim by marriage, former marriage,
or a sexual or dating relationship, it does not preclude the application of the
principle of conspiracy under the Revised Penal Code (RPC). Thus, in the
case of Go-Tan v. Spouses Tan,94 the parents-in-law of Sharica Mari L. Go-
Tan, the victim, were held to be proper respondents in the case filed by the
latter upon the allegation that they and their son (Go-Tan's husband) had
community of design and purpose in tormenting her by giving her
insufficient financial support; harassing and pressuring her to be ejected
from the family home; and in repeatedly abusing her verbally, emotionally,
mentally and physically.
R.A. 9262 is not violative of the
due process clause of the Constitution.
Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of
POs, of all protections afforded by the due process clause of the
Constitution. Says he: "On the basis of unsubstantiated allegations, and
practically no opportunity to respond, the husband is stripped of family,
property, guns, money, children, job, future employment and reputation, all
in a matter of seconds, without an inkling of what happened."95
A protection order is an order issued to prevent further acts of violence
against women and their children, their family or household members, and
to grant other necessary reliefs. Its purpose is to safeguard the offended
parties from further harm, minimize any disruption in their daily life and
facilitate the opportunity and ability to regain control of their life. 96
"The scope of reliefs in protection orders is broadened to ensure that the
victim or offended party is afforded all the remedies necessary to curtail
access by a perpetrator to the victim. This serves to safeguard the victim
from greater risk of violence; to accord the victim and any designated
family or household member safety in the family residence, and to prevent
the perpetrator from committing acts that jeopardize the employment and
support of the victim. It also enables the court to award temporary custody
Page 50 of 60 CONSTI2 EQUAL PROTECTION
of minor children to protect the children from violence, to prevent their
abduction by the perpetrator and to ensure their financial support." 97
The rules require that petitions for protection order be in writing, signed and
verified by the petitioner98 thereby undertaking full responsibility, criminal
or civil, for every allegation therein. Since "time is of the essence in cases of
VAWC if further violence is to be prevented,"99 the court is authorized to
issue ex parte a TPO after raffle but before notice and hearing when the life,
limb or property of the victim is in jeopardy and there is reasonable ground
to believe that the order is necessary to protect the victim from the
immediate and imminent danger of VAWC or to prevent such violence,
which is about to recur.100
There need not be any fear that the judge may have no rational basis to issue
an ex parte order. The victim is required not only to verify the allegations in
the petition, but also to attach her witnesses' affidavits to the petition. 101
The grant of a TPO ex parte cannot, therefore, be challenged as violative of
the right to due process. Just like a writ of preliminary attachment which is
issued without notice and hearing because the time in which the hearing will
take could be enough to enable the defendant to abscond or dispose of his
property,102 in the same way, the victim of VAWC may already have
suffered harrowing experiences in the hands of her tormentor, and possibly
even death, if notice and hearing were required before such acts could be
prevented. It is a constitutional commonplace that the ordinary requirements
of procedural due process must yield to the necessities of protecting vital
public interests,103among which is protection of women and children from
violence and threats to their personal safety and security.
It should be pointed out that when the TPO is issued ex parte, the court shall
likewise order that notice be immediately given to the respondent directing
him to file an opposition within five (5) days from service. Moreover, the
court shall order that notice, copies of the petition and TPO be served
immediately on the respondent by the court sheriffs. The TPOs are initially
effective for thirty (30) days from service on the respondent. 104
Where no TPO is issued ex parte, the court will nonetheless order the
immediate issuance and service of the notice upon the respondent requiring
him to file an opposition to the petition within five (5) days from service.
The date of the preliminary conference and hearing on the merits shall
likewise be indicated on the notice.105
The opposition to the petition which the respondent himself shall verify,
must be accompanied by the affidavits of witnesses and shall show cause
why a temporary or permanent protection order should not be issued.106
It is clear from the foregoing rules that the respondent of a petition for
protection order should be apprised of the charges imputed to him and
afforded an opportunity to present his side. Thus, the fear of petitioner of
being "stripped of family, property, guns, money, children, job, future
employment and reputation, all in a matter of seconds, without an inkling of
what happened" is a mere product of an overactive imagination. The essence
of due process is to be found in the reasonable opportunity to be heard and
submit any evidence one may have in support of one's defense. "To be
heard" does not only mean verbal arguments in court; one may be heard also
through pleadings. Where opportunity to be heard, either through oral
arguments or pleadings, is accorded, there is no denial of procedural due
process.107
It should be recalled that petitioner filed on April 26, 2006 an Opposition to
the Urgent Ex-Parte Motion for Renewal of the TPO that was granted only
two days earlier on April 24, 2006. Likewise, on May 23, 2006, petitioner
filed a motion for the modification of the TPO to allow him visitation rights
to his children. Still, the trial court in its Order dated September 26, 2006,
gave him five days (5) within which to show cause why the TPO should not
be renewed or extended. Yet, he chose not to file the required comment
arguing that it would just be an "exercise in futility," conveniently forgetting
that the renewal of the questioned TPO was only for a limited period (30
days) each time, and that he could prevent the continued renewal of said
order if he can show sufficient cause therefor. Having failed to do so,
petitioner may not now be heard to complain that he was denied due process
of law.
Petitioner next laments that the removal and exclusion of the respondent in
the VAWC case from the residence of the victim, regardless of ownership of
the residence, is virtually a "blank check" issued to the wife to claim any
property as her conjugal home.108
The wording of the pertinent rule, however, does not by any stretch of the
imagination suggest that this is so. It states:
SEC. 11. Reliefs available to the offended party. -- The protection order
shall include any, some or all of the following reliefs:
xxxx
(c) Removing and excluding the respondent from the residence of the
offended party, regardless of ownership of the residence, either temporarily
for the purpose of protecting the offended party, or permanently where no
property rights are violated. If the respondent must remove personal effects
from the residence, the court shall direct a law enforcement agent to
accompany the respondent to the residence, remain there until the
respondent has gathered his things and escort him from the residence;
xxxx
Indubitably, petitioner may be removed and excluded from private
respondent's residence, regardless of ownership, only temporarily for the
purpose of protecting the latter. Such removal and exclusion may be
permanent only where no property rights are violated. How then can the
private respondent just claim any property and appropriate it for herself, as
petitioner seems to suggest?
The non-referral of a VAWC case
to a mediator is justified.
Petitioner argues that "by criminalizing run-of-the-mill arguments, instead
of encouraging mediation and counseling, the law has done violence to the
avowed policy of the State to "protect and strengthen the family as a basic
autonomous social institution."109
Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not refer the
case or any issue thereof to a mediator. The reason behind this provision is
well-explained by the Commentary on Section 311 of the Model Code on
Domestic and Family Violence as follows:110
This section prohibits a court from ordering or referring parties to mediation
in a proceeding for an order for protection. Mediation is a process by which
parties in equivalent bargaining positions voluntarily reach consensual
agreement about the issue at hand. Violence, however, is not a subject for
compromise. A process which involves parties mediating the issue of
violence implies that the victim is somehow at fault. In addition, mediation
of issues in a proceeding for an order of protection is problematic because
the petitioner is frequently unable to participate equally with the person
against whom the protection order has been sought. (Emphasis supplied)
There is no undue delegation of
judicial power to barangay officials.
Petitioner contends that protection orders involve the exercise of judicial
power which, under the Constitution, is placed upon the "Supreme Court
and such other lower courts as may be established by law" and, thus,
protests the delegation of power to barangay officials to issue protection
orders.111 The pertinent provision reads, as follows:
her child physical harm. Such function of the Punong Barangay is, thus,
purely executive in nature, in pursuance of his duty under the Local
Government Code to "enforce all laws and ordinances," and to "maintain
public order in the barangay."114
We have held that "(t)he mere fact that an officer is required by law to
inquire into the existence of certain facts and to apply the law thereto in
order to determine what his official conduct shall be and the fact that these
acts may affect private rights do not constitute an exercise of judicial
powers."115
In the same manner as the public prosecutor ascertains through a
preliminary inquiry or proceeding "whether there is reasonable ground to
believe that an offense has been committed and the accused is probably
guilty thereof," the Punong Barangay must determine reasonable ground to
believe that an imminent danger of violence against the woman and her
children exists or is about to recur that would necessitate the issuance of a
BPO. The preliminary investigation conducted by the prosecutor is,
concededly, an executive, not a judicial, function. The same holds true with
the issuance of a BPO.
We need not even belabor the issue raised by petitioner that since barangay
officials and other law enforcement agencies are required to extend
assistance to victims of violence and abuse, it would be very unlikely that
they would remain objective and impartial, and that the chances of acquittal
are nil. As already stated, assistance by barangay officials and other law
enforcement agencies is consistent with their duty to enforce the law and to
maintain peace and order.
Conclusion
Before a statute or its provisions duly challenged are voided, an unequivocal
breach of, or a clear conflict with the Constitution, not merely a doubtful or
argumentative one, must be demonstrated in such a manner as to leave no
doubt in the mind of the Court. In other words, the grounds for nullity must
be beyond reasonable doubt.116 In the instant case, however, no concrete
evidence and convincing arguments were presented by petitioner to warrant
a declaration of the unconstitutionality of R.A. 9262, which is an act of
Congress and signed into law by the highest officer of the co-equal
executive department. As we said in Estrada v. Sandiganbayan, 117 courts
must assume that the legislature is ever conscious of the borders and edges
of its plenary powers, and passed laws with full knowledge of the facts and
for the purpose of promoting what is right and advancing the welfare of the
majority.
We reiterate here Justice Puno's observation that "the history of the women's
movement against domestic violence shows that one of its most difficult
struggles was the fight against the violence of law itself. If we keep that in
mind, law will not again be a hindrance to the struggle of women for
equality but will be its fulfillment."118 Accordingly, the constitutionality of
R.A. 9262 is, as it should be, sustained.

SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. – WHEREFORE, the instant petition for review on certiorari is hereby
Barangay Protection Orders (BPOs) refer to the protection order issued by DENIED for lack of merit.
the Punong Barangay ordering the perpetrator to desist from committing
acts under Section 5 (a) and (b) of this Act.1âwphi1 A Punong Barangay SO ORDERED.
who receives applications for a BPO shall issue the protection order to the
applicant on the date of filing after ex parte determination of the basis of the
application. If the Punong Barangay is unavailable to act on the application
for a BPO, the application shall be acted upon by any available Barangay
Kagawad. If the BPO is issued by a Barangay Kagawad, the order must be
accompanied by an attestation by the Barangay Kagawad that the Punong
Barangay was unavailable at the time of the issuance of the BPO. BPOs
shall be effective for fifteen (15) days. Immediately after the issuance of an
ex parte BPO, the Punong Barangay or Barangay Kagawad shall personally
serve a copy of the same on the respondent, or direct any barangay official
to effect its personal service.

The parties may be accompanied by a non-lawyer advocate in any

proceeding before the Punong Barangay.

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government. 112 On the other hand,
executive power "is generally defined as the power to enforce and
administer the laws. It is the power of carrying the laws into practical
operation and enforcing their due observance."113

As clearly delimited by the aforequoted provision, the BPO issued by the

Punong Barangay or, in his unavailability, by any available Barangay
Kagawad, merely orders the perpetrator to desist from (a) causing physical
harm to the woman or her child; and (2) threatening to cause the woman or
Page 51 of 60 CONSTI2 EQUAL PROTECTION
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 192935 December 7, 2010
LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
THE PHILIPPINE TRUTH COMMISSION OF 2010, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 193036
REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP.
SIMEON A. DATUMANONG, and REP. ORLANDO B. FUA,
SR., Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. and
DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY
FLORENCIO B. ABAD, Respondents.
DECISION
MENDOZA, J.:
When the judiciary mediates to allocate constitutional boundaries, it does
not assert any superiority over the other departments; it does not in reality
nullify or invalidate an act of the legislature, but only asserts the solemn
and sacred obligation assigned to it by the Constitution to determine
conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which that instrument secures
and guarantees to them.
--- Justice Jose P. Laurel1
The role of the Constitution cannot be overlooked. It is through the
Constitution that the fundamental powers of government are established,
limited and defined, and by which these powers are distributed among the
several departments.2 The Constitution is the basic and paramount law to
which all other laws must conform and to which all persons, including the
highest officials of the land, must defer.3 Constitutional doctrines must
remain steadfast no matter what may be the tides of time. It cannot be
simply made to sway and accommodate the call of situations and much
more tailor itself to the whims and caprices of government and the people
who run it.4
For consideration before the Court are two consolidated cases 5 both of
which essentially assail the validity and constitutionality of Executive Order
No. 1, dated July 30, 2010, entitled "Creating the Philippine Truth
Commission of 2010."
The first case is G.R. No. 192935, a special civil action for prohibition
instituted by petitioner Louis Biraogo (Biraogo) in his capacity as a citizen
and taxpayer. Biraogo assails Executive Order No. 1 for being violative of
the legislative power of Congress under Section 1, Article VI of the
Constitution6 as it usurps the constitutional authority of the legislature to
create a public office and to appropriate funds therefor. 7
The second case, G.R. No. 193036, is a special civil action for certiorari and
prohibition filed by petitioners Edcel C. Lagman, Rodolfo B. Albano Jr.,
Simeon A. Datumanong, and Orlando B. Fua, Sr. (petitioners-legislators) as
incumbent members of the House of Representatives.
The genesis of the foregoing cases can be traced to the events prior to the
historic May 2010 elections, when then Senator Benigno Simeon Aquino III
declared his staunch condemnation of graft and corruption with his
slogan, "Kung walang corrupt, walang mahirap." The Filipino people,
convinced of his sincerity and of his ability to carry out this noble objective,
catapulted the good senator to the presidency.
To transform his campaign slogan into reality, President Aquino found a
need for a special body to investigate reported cases of graft and corruption
allegedly committed during the previous administration.
Thus, at the dawn of his administration, the President on July 30, 2010,
signed Executive Order No. 1 establishing the Philippine Truth Commission
of 2010 (Truth Commission). Pertinent provisions of said executive order
read:
Page 52 of 60 CONSTI2 EQUAL PROTECTION
EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of the
Philippines solemnly enshrines the principle that a public office is a public
trust and mandates that public officers and employees, who are servants of
the people, must at all times be accountable to the latter, serve them with
utmost responsibility, integrity, loyalty and efficiency, act with patriotism
and justice, and lead modest lives;
WHEREAS, corruption is among the most despicable acts of defiance of
this principle and notorious violation of this mandate;
WHEREAS, corruption is an evil and scourge which seriously affects the
political, economic, and social life of a nation; in a very special way it
inflicts untold misfortune and misery on the poor, the marginalized and
underprivileged sector of society;
WHEREAS, corruption in the Philippines has reached very alarming levels,
and undermined the people’s trust and confidence in the Government and its
institutions;
WHEREAS, there is an urgent call for the determination of the truth
regarding certain reports of large scale graft and corruption in the
government and to put a closure to them by the filing of the appropriate
cases against those involved, if warranted, and to deter others from
committing the evil, restore the people’s faith and confidence in the
Government and in their public servants;
WHEREAS, the President’s battlecry during his campaign for the
Presidency in the last elections "kung walang corrupt, walang mahirap"
expresses a solemn pledge that if elected, he would end corruption and the
evil it breeds;
WHEREAS, there is a need for a separate body dedicated solely to
investigating and finding out the truth concerning the reported cases of graft
and corruption during the previous administration, and which will
recommend the prosecution of the offenders and secure justice for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292,
otherwise known as the Revised Administrative Code of the Philippines,
gives the President the continuing authority to reorganize the Office of the
President.
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President
of the Republic of the Philippines, by virtue of the powers vested in me by
law, do hereby order:
SECTION 1. Creation of a Commission. – There is hereby created
the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as
the "COMMISSION," which shall primarily seek and find the truth on,
and toward this end, investigate reports of graft and corruption of such scale
and magnitude that shock and offend the moral and ethical sensibilities of
the people, committed by public officers and employees, their co-principals,
accomplices and accessories from the private sector, if any, during the
previous administration; and thereafter recommend the appropriate action or
measure to be taken thereon to ensure that the full measure of justice shall
be served without fear or favor.
The Commission shall be composed of a Chairman and four (4) members
who will act as an independent collegial body.
SECTION 2. Powers and Functions. – The Commission, which shall have
all the powers of an investigative body under Section 37, Chapter 9, Book I
of the Administrative Code of 1987, is primarily tasked to conduct a
thorough fact-finding investigation of reported cases of graft and corruption
referred to in Section 1, involving third level public officers and higher,
their co-principals, accomplices and accessories from the private sector, if
any, during the previous administration and thereafter submit its finding and
recommendations to the President, Congress and the Ombudsman.
In particular, it shall:
a) Identify and determine the reported cases of such graft and
corruption which it will investigate;
b) Collect, receive, review and evaluate evidence related to or
regarding the cases of large scale corruption which it has chosen
to investigate, and to this end require any agency, official or
employee of the Executive Branch, including government-owned
or controlled corporations, to produce documents, books, records
and other papers;
 c) Upon proper request or representation, obtain information and
documents from the Senate and the House of Representatives
records of investigations conducted by committees thereof
relating to matters or subjects being investigated by the
Commission;
d) Upon proper request and representation, obtain information
from the courts, including the Sandiganbayan and the Office of
the Court Administrator, information or documents in respect to
corruption cases filed with the Sandiganbayan or the regular
courts, as the case may be;
e) Invite or subpoena witnesses and take their testimonies and for
that purpose, administer oaths or affirmations as the case may be;
f) Recommend, in cases where there is a need to utilize any
person as a state witness to ensure that the ends of justice be fully
served, that such person who qualifies as a state witness under the
Revised Rules of Court of the Philippines be admitted for that
purpose;
g) Turn over from time to time, for expeditious prosecution, to
the appropriate prosecutorial authorities, by means of a special
or interim report and recommendation, all evidence on corruption
of public officers and employees and their private sector co-
principals, accomplices or accessories, if any, when in the course
of its investigation the Commission finds that there is reasonable
ground to believe that they are liable for graft and corruption
under pertinent applicable laws;
h) Call upon any government investigative or prosecutorial
agency such as the Department of Justice or any of the agencies
under it, and the Presidential Anti-Graft Commission, for such
assistance and cooperation as it may require in the discharge of its
functions and duties;
i) Engage or contract the services of resource persons,
professionals and other personnel determined by it as necessary to
carry out its mandate;
j) Promulgate its rules and regulations or rules of procedure it
deems necessary to effectively and efficiently carry out the
objectives of this Executive Order and to ensure the orderly
conduct of its investigations, proceedings and hearings, including
the presentation of evidence;
k) Exercise such other acts incident to or are appropriate and
necessary in connection with the objectives and purposes of this
Order.
SECTION 3. Staffing Requirements. – x x x.
SECTION 4. Detail of Employees. – x x x.
SECTION 5. Engagement of Experts. – x x x
SECTION 6. Conduct of Proceedings. – x x x.
SECTION 7. Right to Counsel of Witnesses/Resource Persons. – x x x.
SECTION 8. Protection of Witnesses/Resource Persons. – x x x.
SECTION 9. Refusal to Obey Subpoena, Take Oath or Give
Testimony. – Any government official or personnel who, without lawful
excuse, fails to appear upon subpoena issued by the Commission or who,
appearing before the Commission refuses to take oath or affirmation, give
testimony or produce documents for inspection, when required, shall be
subject to administrative disciplinary action. Any private person who does
the same may be dealt with in accordance with law.
SECTION 10. Duty to Extend Assistance to the Commission. – x x x.
SECTION 11. Budget for the Commission. – The Office of the President
shall provide the necessary funds for the Commission to ensure that it can
exercise its powers, execute its functions, and perform its duties and
responsibilities as effectively, efficiently, and expeditiously as possible.
SECTION 12. Office. – x x x.
SECTION 13. Furniture/Equipment. – x x x.
Page 53 of 60 CONSTI2 EQUAL PROTECTION
SECTION 14. Term of the Commission. – The Commission shall
accomplish its mission on or before December 31, 2012.
SECTION 15. Publication of Final Report. – x x x.
SECTION 16. Transfer of Records and Facilities of the Commission. –
x x x.
SECTION 17. Special Provision Concerning Mandate. If and when in
the judgment of the President there is a need to expand the mandate of the
Commission as defined in Section 1 hereof to include the investigation of
cases and instances of graft and corruption during the prior administrations,
such mandate may be so extended accordingly by way of a supplemental
Executive Order.
SECTION 18. Separability Clause. If any provision of this Order is
declared unconstitutional, the same shall not affect the validity and
effectivity of the other provisions hereof.
SECTION 19. Effectivity. – This Executive Order shall take effect
immediately.
DONE in the City of Manila, Philippines, this 30th day of July 2010.
(SGD.) BENIGNO S. AQUINO III
By the President:
(SGD.) PAQUITO N. OCHOA, JR.
Executive Secretary
Nature of the Truth Commission
As can be gleaned from the above-quoted provisions, the Philippine Truth
Commission (PTC) is a mere ad hoc body formed under the Office of the
President with the primary task to investigate reports of graft and corruption
committed by third-level public officers and employees, their co-principals,
accomplices and accessories during the previous administration, and
thereafter to submit its finding and recommendations to the President,
Congress and the Ombudsman. Though it has been described as an
"independent collegial body," it is essentially an entity within the Office of
the President Proper and subject to his control. Doubtless, it constitutes a
public office, as an ad hoc body is one.8
To accomplish its task, the PTC shall have all the powers of an investigative
body under Section 37, Chapter 9, Book I of the Administrative Code of
1987. It is not, however, a quasi-judicial body as it cannot adjudicate,
arbitrate, resolve, settle, or render awards in disputes between contending
parties. All it can do is gather, collect and assess evidence of graft and
corruption and make recommendations. It may have subpoena powers but it
has no power to cite people in contempt, much less order their arrest.
Although it is a fact-finding body, it cannot determine from such facts if
probable cause exists as to warrant the filing of an information in our courts
of law. Needless to state, it cannot impose criminal, civil or administrative
penalties or sanctions.
The PTC is different from the truth commissions in other countries which
have been created as official, transitory and non-judicial fact-finding bodies
"to establish the facts and context of serious violations of human rights or of
international humanitarian law in a country’s past."9 They are usually
established by states emerging from periods of internal unrest, civil strife or
authoritarianism to serve as mechanisms for transitional justice.
Truth commissions have been described as bodies that share the following
characteristics: (1) they examine only past events; (2) they investigate
patterns of abuse committed over a period of time, as opposed to a particular
event; (3) they are temporary bodies that finish their work with the
submission of a report containing conclusions and recommendations; and
(4) they are officially sanctioned, authorized or empowered by the
State.10 "Commission’s members are usually empowered to conduct
research, support victims, and propose policy recommendations to prevent
recurrence of crimes. Through their investigations, the commissions may
aim to discover and learn more about past abuses, or formally acknowledge
them. They may aim to prepare the way for prosecutions and recommend
institutional reforms."11
Thus, their main goals range from retribution to reconciliation. The
Nuremburg and Tokyo war crime tribunals are examples of a retributory or
vindicatory body set up to try and punish those responsible for crimes
against humanity. A form of a reconciliatory tribunal is the Truth and
Reconciliation Commission of South Africa, the principal function of which
was to heal the wounds of past violence and to prevent future conflict by
providing a cathartic experience for victims.
The PTC is a far cry from South Africa’s model. The latter placed more
emphasis on reconciliation than on judicial retribution, while the marching
order of the PTC is the identification and punishment of perpetrators. As
one writer12puts it:
The order ruled out reconciliation. It translated the Draconian code spelled
out by Aquino in his inaugural speech: "To those who talk about
reconciliation, if they mean that they would like us to simply forget about
the wrongs that they have committed in the past, we have this to say: There
can be no reconciliation without justice. When we allow crimes to go
unpunished, we give consent to their occurring over and over again."
The Thrusts of the Petitions
Barely a month after the issuance of Executive Order No. 1, the petitioners
asked the Court to declare it unconstitutional and to enjoin the PTC from
performing its functions. A perusal of the arguments of the petitioners in
both cases shows that they are essentially the same. The petitioners-
legislators summarized them in the following manner:
(a) E.O. No. 1 violates the separation of powers as it arrogates the
power of the Congress to create a public office and appropriate
funds for its operation.
(b) The provision of Book III, Chapter 10, Section 31 of the
Administrative Code of 1987 cannot legitimize E.O. No. 1
because the delegated authority of the President to structurally
reorganize the Office of the President to achieve economy,
simplicity and efficiency does not include the power to create an
entirely new public office which was hitherto inexistent like the
"Truth Commission."
(c) E.O. No. 1 illegally amended the Constitution and pertinent
statutes when it vested the "Truth Commission" with quasi-
judicial powers duplicating, if not superseding, those of the
Office of the Ombudsman created under the 1987 Constitution
and the Department of Justice created under the Administrative
Code of 1987.
(d) E.O. No. 1 violates the equal protection clause as it selectively
targets for investigation and prosecution officials and personnel
of the previous administration as if corruption is their peculiar
species even as it excludes those of the other administrations, past
and present, who may be indictable.
(e) The creation of the "Philippine Truth Commission of 2010"
violates the consistent and general international practice of four
decades wherein States constitute truth commissions to
exclusively investigate human rights violations, which customary
practice forms part of the generally accepted principles of
international law which the Philippines is mandated to adhere to
pursuant to the Declaration of Principles enshrined in the
Constitution.
(f) The creation of the "Truth Commission" is an exercise in
futility, an adventure in partisan hostility, a launching pad for
trial/conviction by publicity and a mere populist propaganda to
mistakenly impress the people that widespread poverty will
altogether vanish if corruption is eliminated without even
addressing the other major causes of poverty.
(g) The mere fact that previous commissions were not
constitutionally challenged is of no moment because neither
laches nor estoppel can bar an eventual question on the
constitutionality and validity of an executive issuance or even a
statute."13
In their Consolidated Comment,14 the respondents, through the Office of the
Solicitor General (OSG), essentially questioned the legal standing of
petitioners and defended the assailed executive order with the following
arguments:
1] E.O. No. 1 does not arrogate the powers of Congress to create
a public office because the President’s executive power and
power of control necessarily include the inherent power to
conduct investigations to ensure that laws are faithfully executed
and that, in any event, the Constitution, Revised Administrative
Code of 1987 (E.O. No. 292), 15 Presidential Decree (P.D.) No.
141616 (as amended by P.D. No. 1772), R.A. No. 9970,17 and
settled jurisprudence that authorize the President to create or form
such bodies.
Page 54 of 60 CONSTI2 EQUAL PROTECTION
2] E.O. No. 1 does not usurp the power of Congress to
appropriate funds because there is no appropriation but a mere
allocation of funds already appropriated by Congress.
3] The Truth Commission does not duplicate or supersede the
functions of the Office of the Ombudsman (Ombudsman) and the
Department of Justice (DOJ), because it is a fact-finding body
and not a quasi-judicial body and its functions do not duplicate,
supplant or erode the latter’s jurisdiction.
4] The Truth Commission does not violate the equal protection
clause because it was validly created for laudable purposes.
The OSG then points to the continued existence and validity of other
executive orders and presidential issuances creating similar bodies to justify
the creation of the PTC such as Presidential Complaint and Action
Commission (PCAC) by President Ramon B. Magsaysay, Presidential
Committee on Administrative Performance Efficiency (PCAPE) by
President Carlos P. Garcia and Presidential Agency on Reform and
Government Operations (PARGO)by President Ferdinand E. Marcos.18
From the petitions, pleadings, transcripts, and memoranda, the following are
the principal issues to be resolved:
1. Whether or not the petitioners have the legal standing to file
their respective petitions and question Executive Order No. 1;
2. Whether or not Executive Order No. 1 violates the principle of
separation of powers by usurping the powers of Congress to
create and to appropriate funds for public offices, agencies and
commissions;
3. Whether or not Executive Order No. 1 supplants the powers of
the Ombudsman and the DOJ;
4. Whether or not Executive Order No. 1 violates the equal
protection clause; and
5. Whether or not petitioners are entitled to injunctive relief.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of Executive
Order No. 1, the Court needs to ascertain whether the requisites for a valid
exercise of its power of judicial review are present.
Like almost all powers conferred by the Constitution, the power of judicial
review is subject to limitations, to wit: (1) there must be an actual case or
controversy calling for the exercise of judicial power; (2) the person
challenging the act must have the standing to question the validity of the
subject act or issuance; otherwise stated, he must have a personal and
substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest opportunity; and (4) the issue
of constitutionality must be the very lis mota of the case.19
Among all these limitations, only the legal standing of the petitioners has
been put at issue.
Legal Standing of the Petitioners
The OSG attacks the legal personality of the petitioners-legislators to file
their petition for failure to demonstrate their personal stake in the outcome
of the case. It argues that the petitioners have not shown that they have
sustained or are in danger of sustaining any personal injury attributable to
the creation of the PTC. Not claiming to be the subject of the commission’s
investigations, petitioners will not sustain injury in its creation or as a result
of its proceedings.20
The Court disagrees with the OSG in questioning the legal standing of the
petitioners-legislators to assail Executive Order No. 1. Evidently, their
petition primarily invokes usurpation of the power of the Congress as a
body to which they belong as members. This certainly justifies their resolve
to take the cudgels for Congress as an institution and present the complaints
on the usurpation of their power and rights as members of the legislature
before the Court. As held in Philippine Constitution Association v.
Enriquez,21
To the extent the powers of Congress are impaired, so is the power of each
member thereof, since his office confers a right to participate in the exercise
of the powers of that institution.
An act of the Executive which injures the institution of Congress causes a
derivative but nonetheless substantial injury, which can be questioned by a
member of Congress. In such a case, any member of Congress can have a
resort to the courts.
Indeed, legislators have a legal standing to see to it that the prerogative,
powers and privileges vested by the Constitution in their office remain
inviolate. Thus, they are allowed to question the validity of any official
action which, to their mind, infringes on their prerogatives as legislators.22
With regard to Biraogo, the OSG argues that, as a taxpayer, he has no
standing to question the creation of the PTC and the budget for its
operations.23 It emphasizes that the funds to be used for the creation and
operation of the commission are to be taken from those funds already
appropriated by Congress. Thus, the allocation and disbursement of funds
for the commission will not entail congressional action but will simply be an
exercise of the President’s power over contingent funds.
As correctly pointed out by the OSG, Biraogo has not shown that he
sustained, or is in danger of sustaining, any personal and direct injury
attributable to the implementation of Executive Order No. 1. Nowhere in his
petition is an assertion of a clear right that may justify his clamor for the
Court to exercise judicial power and to wield the axe over presidential
issuances in defense of the Constitution. The case of David v.
Arroyo24 explained the deep-seated rules on locus standi. Thus:
Locus standi is defined as "a right of appearance in a court of justice on a
given question." In private suits, standing is governed by the "real-parties-in
interest" rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil
Procedure, as amended. It provides that "every action must be prosecuted
or defended in the name of the real party in interest." Accordingly, the
"real-party-in interest" is "the party who stands to be benefited or injured by
the judgment in the suit or the party entitled to the avails of the suit."
Succinctly put, the plaintiff’s standing is based on his own right to the relief
sought.
The difficulty of determining locus standi arises in public suits. Here, the
plaintiff who asserts a "public right" in assailing an allegedly illegal official
action, does so as a representative of the general public. He may be a person
who is affected no differently from any other person. He could be suing as a
"stranger," or in the category of a "citizen," or ‘taxpayer." In either case, he
has to adequately show that he is entitled to seek judicial protection. In other
words, he has to make out a sufficient interest in the vindication of the
public order and the securing of relief as a "citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer"
standing in public actions. The distinction was first laid down in Beauchamp
v. Silk, where it was held that the plaintiff in a taxpayer’s suit is in a
different category from the plaintiff in a citizen’s suit. In the former, the
plaintiff is affected by the expenditure of public funds, while in the latter, he
is but the mere instrument of the public concern. As held by the New York
Supreme Court in People ex rel Case v. Collins: "In matter of mere public
right, however…the people are the real parties…It is at least the right, if not
the duty, of every citizen to interfere and see that a public offence be
properly pursued and punished, and that a public grievance be remedied."
With respect to taxpayer’s suits, Terr v. Jordan held that "the right of a
citizen and a taxpayer to maintain an action in courts to restrain the unlawful
use of public funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial
interference in any official policy or act with which he disagreed with, and
thus hinders the activities of governmental agencies engaged in public
service, the United State Supreme Court laid down the more stringent
"direct injury" test in Ex Parte Levitt, later reaffirmed in Tileston v.
Ullman. The same Court ruled that for a private individual to invoke the
judicial power to determine the validity of an executive or legislative
action, he must show that he has sustained a direct injury as a result of
that action, and it is not sufficient that he has a general interest
common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v.
Vera, it held that the person who impugns the validity of a statute must have
"a personal and substantial interest in the case such that he has
sustained, or will sustain direct injury as a result." The Vera doctrine
was upheld in a litany of cases, such as, Custodio v. President of the
Senate, Manila Race Horse Trainers’ Association v. De la Fuente, Pascual
v. Secretary of Public Works and Anti-Chinese League of the Philippines v.
Felix. [Emphases included. Citations omitted]
Notwithstanding, the Court leans on the doctrine that "the rule on standing
is a matter of procedure, hence, can be relaxed for nontraditional plaintiffs
like ordinary citizens, taxpayers, and legislators when the public interest so
requires, such as when the matter is of transcendental importance, of
overreaching significance to society, or of paramount public interest."25
Page 55 of 60 CONSTI2 EQUAL PROTECTION
Thus, in Coconut Oil Refiners Association, Inc. v. Torres, 26 the Court held
that in cases of paramount importance where serious constitutional
questions are involved, the standing requirements may be relaxed and a suit
may be allowed to prosper even where there is no direct injury to the party
claiming the right of judicial review. In the first Emergency Powers
Cases,27 ordinary citizens and taxpayers were allowed to question the
constitutionality of several executive orders although they had only an
indirect and general interest shared in common with the public.
The OSG claims that the determinants of transcendental importance 28 laid
down in CREBA v. ERC and Meralco29are non-existent in this case. The
Court, however, finds reason in Biraogo’s assertion that the petition covers
matters of transcendental importance to justify the exercise of jurisdiction
by the Court. There are constitutional issues in the petition which deserve
the attention of this Court in view of their seriousness, novelty and weight
as precedents. Where the issues are of transcendental and paramount
importance not only to the public but also to the Bench and the Bar, they
should be resolved for the guidance of all.30 Undoubtedly, the Filipino
people are more than interested to know the status of the President’s first
effort to bring about a promised change to the country. The Court takes
cognizance of the petition not due to overwhelming political undertones that
clothe the issue in the eyes of the public, but because the Court stands firm
in its oath to perform its constitutional duty to settle legal controversies with
overreaching significance to society.
Power of the President to Create the Truth Commission
In his memorandum in G.R. No. 192935, Biraogo asserts that the Truth
Commission is a public office and not merely an adjunct body of the Office
of the President.31 Thus, in order that the President may create a public
office he must be empowered by the Constitution, a statute or an
authorization vested in him by law. According to petitioner, such power
cannot be presumed32 since there is no provision in the Constitution or any
specific law that authorizes the President to create a truth commission.33 He
adds that Section 31 of the Administrative Code of 1987, granting the
President the continuing authority to reorganize his office, cannot serve as
basis for the creation of a truth commission considering the aforesaid
provision merely uses verbs such as "reorganize," "transfer," "consolidate,"
"merge," and "abolish."34 Insofar as it vests in the President the plenary
power to reorganize the Office of the President to the extent of creating a
public office, Section 31 is inconsistent with the principle of separation of
powers enshrined in the Constitution and must be deemed repealed upon the
effectivity thereof.35
Similarly, in G.R. No. 193036, petitioners-legislators argue that the creation
of a public office lies within the province of Congress and not with the
executive branch of government. They maintain that the delegated authority
of the President to reorganize under Section 31 of the Revised
Administrative Code: 1) does not permit the President to create a public
office, much less a truth commission; 2) is limited to the reorganization of
the administrative structure of the Office of the President; 3) is limited to the
restructuring of the internal organs of the Office of the President Proper,
transfer of functions and transfer of agencies; and 4) only to achieve
simplicity, economy and efficiency.36Such continuing authority of the
President to reorganize his office is limited, and by issuing Executive Order
No. 1, the President overstepped the limits of this delegated authority.
The OSG counters that there is nothing exclusively legislative about the
creation by the President of a fact-finding body such as a truth commission.
Pointing to numerous offices created by past presidents, it argues that the
authority of the President to create public offices within the Office of the
President Proper has long been recognized.37 According to the OSG, the
Executive, just like the other two branches of government, possesses the
inherent authority to create fact-finding committees to assist it in the
performance of its constitutionally mandated functions and in the exercise
of its administrative functions.38 This power, as the OSG explains it, is but
an adjunct of the plenary powers wielded by the President under Section 1
and his power of control under Section 17, both of Article VII of the
Constitution.39
It contends that the President is necessarily vested with the power to
conduct fact-finding investigations, pursuant to his duty to ensure that all
laws are enforced by public officials and employees of his department and
in the exercise of his authority to assume directly the functions of the
executive department, bureau and office, or interfere with the discretion of
his officials.40 The power of the President to investigate is not limited to the
exercise of his power of control over his subordinates in the executive
branch, but extends further in the exercise of his other powers, such as his
power to discipline subordinates,41 his power for rule making, adjudication
and licensing purposes42 and in order to be informed on matters which he is
entitled to know.43
The OSG also cites the recent case of Banda v. Ermita, 44 where it was held
that the President has the power to reorganize the offices and agencies in the
executive department in line with his constitutionally granted power of
control and by virtue of a valid delegation of the legislative power to
reorganize executive offices under existing statutes.
Thus, the OSG concludes that the power of control necessarily includes the
power to create offices. For the OSG, the President may create the PTC in
order to, among others, put a closure to the reported large scale graft and
corruption in the government.45
The question, therefore, before the Court is this: Does the creation of the
PTC fall within the ambit of the power to reorganize as expressed in Section
31 of the Revised Administrative Code? Section 31 contemplates
"reorganization" as limited by the following functional and structural lines:
(1) restructuring the internal organization of the Office of the President
Proper by abolishing, consolidating or merging units thereof or transferring
functions from one unit to another; (2) transferring any function under the
Office of the President to any other Department/Agency or vice versa; or (3)
transferring any agency under the Office of the President to any other
Department/Agency or vice versa. Clearly, the provision refers to reduction
of personnel, consolidation of offices, or abolition thereof by reason of
economy or redundancy of functions. These point to situations where a body
or an office is already existent but a modification or alteration thereof has to
be effected. The creation of an office is nowhere mentioned, much less
envisioned in said provision. Accordingly, the answer to the question is in
the negative.
To say that the PTC is borne out of a restructuring of the Office of the
President under Section 31 is a misplaced supposition, even in the plainest
meaning attributable to the term "restructure"– an "alteration of an existing
structure." Evidently, the PTC was not part of the structure of the Office of
the President prior to the enactment of Executive Order No. 1. As held in
Buklod ng Kawaning EIIB v. Hon. Executive Secretary,46
But of course, the list of legal basis authorizing the President to reorganize
any department or agency in the executive branch does not have to end here.
We must not lose sight of the very source of the power – that which
constitutes an express grant of power. Under Section 31, Book III of
Executive Order No. 292 (otherwise known as the Administrative Code of
1987), "the President, subject to the policy in the Executive Office and in
order to achieve simplicity, economy and efficiency, shall have the
continuing authority to reorganize the administrative structure of the Office
of the President." For this purpose, he may transfer the functions of other
Departments or Agencies to the Office of the President. In Canonizado v.
Aguirre [323 SCRA 312 (2000)], we ruled that reorganization "involves the
reduction of personnel, consolidation of offices, or abolition thereof by
reason of economy or redundancy of functions." It takes place when there is
an alteration of the existing structure of government offices or units therein,
including the lines of control, authority and responsibility between them.
The EIIB is a bureau attached to the Department of Finance. It falls under
the Office of the President. Hence, it is subject to the President’s continuing
authority to reorganize. [Emphasis Supplied]
In the same vein, the creation of the PTC is not justified by the President’s
power of control. Control is essentially the power to alter or modify or
nullify or set aside what a subordinate officer had done in the performance
of his duties and to substitute the judgment of the former with that of the
latter.47 Clearly, the power of control is entirely different from the power to
create public offices. The former is inherent in the Executive, while the
latter finds basis from either a valid delegation from Congress, or his
inherent duty to faithfully execute the laws.
The question is this, is there a valid delegation of power from Congress,
empowering the President to create a public office?
According to the OSG, the power to create a truth commission pursuant to
the above provision finds statutory basis under P.D. 1416, as amended by
P.D. No. 1772.48 The said law granted the President the continuing authority
to reorganize the national government, including the power to group,
consolidate bureaus and agencies, to abolish offices, to transfer functions, to
create and classify functions, services and activities, transfer appropriations,
and to standardize salaries and materials. This decree, in relation to Section
20, Title I, Book III of E.O. 292 has been invoked in several cases such as
Larin v. Executive Secretary.49
The Court, however, declines to recognize P.D. No. 1416 as a justification
for the President to create a public office. Said decree is already stale,
anachronistic and inoperable. P.D. No. 1416 was a delegation to then
President Marcos of the authority to reorganize the administrative structure
of the national government including the power to create offices and transfer
appropriations pursuant to one of the purposes of the decree, embodied in its
last "Whereas" clause:
WHEREAS, the transition towards the parliamentary form of government
will necessitate flexibility in the organization of the national government.
Page 56 of 60 CONSTI2 EQUAL PROTECTION
Clearly, as it was only for the purpose of providing manageability and
resiliency during the interim, P.D. No. 1416, as amended by P.D. No. 1772,
became functus oficio upon the convening of the First Congress, as
expressly provided in Section 6, Article XVIII of the 1987 Constitution. In
fact, even the Solicitor General agrees with this view. Thus:
ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was the
last whereas clause of P.D. 1416 says "it was enacted to prepare the
transition from presidential to parliamentary. Now, in a parliamentary form
of government, the legislative and executive powers are fused, correct?
SOLICITOR GENERAL CADIZ: Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was issued.
Now would you agree with me that P.D. 1416 should not be considered
effective anymore upon the promulgation, adoption, ratification of the 1987
Constitution.
SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416, Your
Honor.
ASSOCIATE JUSTICE CARPIO: The power of the President to reorganize
the entire National Government is deemed repealed, at least, upon the
adoption of the 1987 Constitution, correct.
SOLICITOR GENERAL CADIZ: Yes, Your Honor.50
While the power to create a truth commission cannot pass muster on the
basis of P.D. No. 1416 as amended by P.D. No. 1772, the creation of the
PTC finds justification under Section 17, Article VII of the Constitution,
imposing upon the President the duty to ensure that the laws are faithfully
executed. Section 17 reads:
Section 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be faithfully
executed. (Emphasis supplied).
As correctly pointed out by the respondents, the allocation of power in the
three principal branches of government is a grant of all powers inherent in
them. The President’s power to conduct investigations to aid him in
ensuring the faithful execution of laws – in this case, fundamental laws on
public accountability and transparency – is inherent in the President’s
powers as the Chief Executive. That the authority of the President to
conduct investigations and to create bodies to execute this power is not
explicitly mentioned in the Constitution or in statutes does not mean that he
is bereft of such authority.51 As explained in the landmark case of Marcos v.
Manglapus:52
x x x. The 1987 Constitution, however, brought back the presidential system
of government and restored the separation of legislative, executive and
judicial powers by their actual distribution among three distinct branches of
government with provision for checks and balances.
It would not be accurate, however, to state that "executive power" is the
power to enforce the laws, for the President is head of state as well as head
of government and whatever powers inhere in such positions pertain to the
office unless the Constitution itself withholds it. Furthermore, the
Constitution itself provides that the execution of the laws is only one of the
powers of the President. It also grants the President other powers that do not
involve the execution of any provision of law, e.g., his power over the
country's foreign relations.
On these premises, we hold the view that although the 1987 Constitution
imposes limitations on the exercise of specific powers of the President, it
maintains intact what is traditionally considered as within the scope of
"executive power." Corollarily, the powers of the President cannot be said to
be limited only to the specific powers enumerated in the Constitution. In
other words, executive power is more than the sum of specific powers so
enumerated.
It has been advanced that whatever power inherent in the government that is
neither legislative nor judicial has to be executive. x x x.
Indeed, the Executive is given much leeway in ensuring that our laws are
faithfully executed. As stated above, the powers of the President are not
limited to those specific powers under the Constitution. 53 One of the
recognized powers of the President granted pursuant to this constitutionally-
mandated duty is the power to create ad hoc committees. This flows from
the obvious need to ascertain facts and determine if laws have been
faithfully executed. Thus, in Department of Health v. Camposano,54 the
authority of the President to issue Administrative Order No. 298, creating an
investigative committee to look into the administrative charges filed against
the employees of the Department of Health for the anomalous purchase of
medicines was upheld. In said case, it was ruled:
The Chief Executive’s power to create the Ad hoc Investigating
Committee cannot be doubted. Having been constitutionally granted full
control of the Executive Department, to which respondents belong, the
President has the obligation to ensure that all executive officials and
employees faithfully comply with the law. With AO 298 as mandate, the
legality of the investigation is sustained. Such validity is not affected by the
fact that the investigating team and the PCAGC had the same composition,
or that the former used the offices and facilities of the latter in conducting
the inquiry. [Emphasis supplied]
It should be stressed that the purpose of allowing ad hoc investigating
bodies to exist is to allow an inquiry into matters which the President is
entitled to know so that he can be properly advised and guided in the
performance of his duties relative to the execution and enforcement of the
laws of the land. And if history is to be revisited, this was also the objective
of the investigative bodies created in the past like the PCAC, PCAPE,
PARGO, the Feliciano Commission, the Melo Commission and the
Zenarosa Commission. There being no changes in the government structure,
the Court is not inclined to declare such executive power as non-existent
just because the direction of the political winds have changed.
On the charge that Executive Order No. 1 transgresses the power of
Congress to appropriate funds for the operation of a public office, suffice it
to say that there will be no appropriation but only an allotment or allocations
of existing funds already appropriated. Accordingly, there is no usurpation
on the part of the Executive of the power of Congress to appropriate funds.
Further, there is no need to specify the amount to be earmarked for the
operation of the commission because, in the words of the Solicitor General,
"whatever funds the Congress has provided for the Office of the President
will be the very source of the funds for the commission." 55 Moreover, since
the amount that would be allocated to the PTC shall be subject to existing
auditing rules and regulations, there is no impropriety in the funding.
Power of the Truth Commission to Investigate
The President’s power to conduct investigations to ensure that laws are
faithfully executed is well recognized. It flows from the faithful-execution
clause of the Constitution under Article VII, Section 17 thereof. 56 As the
Chief Executive, the president represents the government as a whole and
sees to it that all laws are enforced by the officials and employees of his
department. He has the authority to directly assume the functions of the
executive department.57
Invoking this authority, the President constituted the PTC to primarily
investigate reports of graft and corruption and to recommend the appropriate
action. As previously stated, no quasi-judicial powers have been vested in
the said body as it cannot adjudicate rights of persons who come before it. It
has been said that "Quasi-judicial powers involve the power to hear and
determine questions of fact to which the legislative policy is to apply and to
decide in accordance with the standards laid down by law itself in enforcing
and administering the same law."58 In simpler terms, judicial discretion is
involved in the exercise of these quasi-judicial power, such that it is
exclusively vested in the judiciary and must be clearly authorized by the
legislature in the case of administrative agencies.
The distinction between the power to investigate and the power to
adjudicate was delineated by the Court in Cariño v. Commission on Human
Rights.59 Thus:
"Investigate," commonly understood, means to examine, explore, inquire or
delve or probe into, research on, study. The dictionary definition of
"investigate" is "to observe or study closely: inquire into systematically: "to
search or inquire into: x x to subject to an official probe x x: to conduct an
official inquiry." The purpose of investigation, of course, is to discover, to
find out, to learn, obtain information. Nowhere included or intimated is the
notion of settling, deciding or resolving a controversy involved in the facts
inquired into by application of the law to the facts established by the
inquiry.
The legal meaning of "investigate" is essentially the same: "(t)o follow up
step by step by patient inquiry or observation. To trace or track; to search
into; to examine and inquire into with care and accuracy; to find out by
careful inquisition; examination; the taking of evidence; a legal inquiry;" "to
inquire; to make an investigation," "investigation" being in turn described as
"(a)n administrative function, the exercise of which ordinarily does not
require a hearing. 2 Am J2d Adm L Sec. 257; x x an inquiry, judicial or
otherwise, for the discovery and collection of facts concerning a certain
matter or matters."
"Adjudicate," commonly or popularly understood, means to adjudge,
arbitrate, judge, decide, determine, resolve, rule on, settle. The dictionary
defines the term as "to settle finally (the rights and duties of the parties to a
Page 57 of 60 CONSTI2 EQUAL PROTECTION
court case) on the merits of issues raised: x x to pass judgment on: settle
judicially: x x act as judge." And "adjudge" means "to decide or rule upon
as a judge or with judicial or quasi-judicial powers: x x to award or grant
judicially in a case of controversy x x."
In the legal sense, "adjudicate" means: "To settle in the exercise of judicial
authority. To determine finally. Synonymous with adjudge in its strictest
sense;" and "adjudge" means: "To pass on judicially, to decide, settle or
decree, or to sentence or condemn. x x. Implies a judicial determination of a
fact, and the entry of a judgment." [Italics included. Citations Omitted]
Fact-finding is not adjudication and it cannot be likened to the judicial
function of a court of justice, or even a quasi-judicial agency or office. The
function of receiving evidence and ascertaining therefrom the facts of a
controversy is not a judicial function. To be considered as such, the act of
receiving evidence and arriving at factual conclusions in a controversy must
be accompanied by the authority of applying the law to the factual
conclusions to the end that the controversy may be decided or resolved
authoritatively, finally and definitively, subject to appeals or modes of
review as may be provided by law.60 Even respondents themselves admit
that the commission is bereft of any quasi-judicial power.61
Contrary to petitioners’ apprehension, the PTC will not supplant the
Ombudsman or the DOJ or erode their respective powers. If at all, the
investigative function of the commission will complement those of the two
offices. As pointed out by the Solicitor General, the recommendation to
prosecute is but a consequence of the overall task of the commission to
conduct a fact-finding investigation."62 The actual prosecution of suspected
offenders, much less adjudication on the merits of the charges against
them,63 is certainly not a function given to the commission. The phrase,
"when in the course of its investigation," under Section 2(g), highlights this
fact and gives credence to a contrary interpretation from that of the
petitioners. The function of determining probable cause for the filing of the
appropriate complaints before the courts remains to be with the DOJ and the
Ombudsman.64
At any rate, the Ombudsman’s power to investigate under R.A. No. 6770 is
not exclusive but is shared with other similarly authorized government
agencies. Thus, in the case of Ombudsman v. Galicia,65 it was written:
This power of investigation granted to the Ombudsman by the 1987
Constitution and The Ombudsman Act is not exclusive but is shared with
other similarly authorized government agencies such as the PCGG and
judges of municipal trial courts and municipal circuit trial courts. The power
to conduct preliminary investigation on charges against public employees
and officials is likewise concurrently shared with the Department of Justice.
Despite the passage of the Local Government Code in 1991, the
Ombudsman retains concurrent jurisdiction with the Office of the President
and the local Sanggunians to investigate complaints against local elective
officials. [Emphasis supplied].
Also, Executive Order No. 1 cannot contravene the power of the
Ombudsman to investigate criminal cases under Section 15 (1) of R.A. No.
6770, which states:
(1) Investigate and prosecute on its own or on complaint by any person, any
act or omission of any public officer or employee, office or agency, when
such act or omission appears to be illegal, unjust, improper or inefficient. It
has primary jurisdiction over cases cognizable by the Sandiganbayan and, in
the exercise of its primary jurisdiction, it may take over, at any stage, from
any investigatory agency of government, the investigation of such cases.
[Emphases supplied]
The act of investigation by the Ombudsman as enunciated above
contemplates the conduct of a preliminary investigation or the determination
of the existence of probable cause. This is categorically out of the PTC’s
sphere of functions. Its power to investigate is limited to obtaining facts so
that it can advise and guide the President in the performance of his duties
relative to the execution and enforcement of the laws of the land. In this
regard, the PTC commits no act of usurpation of the Ombudsman’s
primordial duties.
The same holds true with respect to the DOJ. Its authority under Section 3
(2), Chapter 1, Title III, Book IV in the Revised Administrative Code is by
no means exclusive and, thus, can be shared with a body likewise tasked to
investigate the commission of crimes.
Finally, nowhere in Executive Order No. 1 can it be inferred that the
findings of the PTC are to be accorded conclusiveness. Much like its
predecessors, the Davide Commission, the Feliciano Commission and the
Zenarosa Commission, its findings would, at best, be recommendatory in
nature. And being so, the Ombudsman and the DOJ have a wider degree of
latitude to decide whether or not to reject the recommendation. These
offices, therefore, are not deprived of their mandated duties but will instead
be aided by the reports of the PTC for possible indictments for violations of
graft laws.
Violation of the Equal Protection Clause
Although the purpose of the Truth Commission falls within the investigative
power of the President, the Court finds difficulty in upholding the
constitutionality of Executive Order No. 1 in view of its apparent
transgression of the equal protection clause enshrined in Section 1, Article
III (Bill of Rights) of the 1987 Constitution. Section 1 reads:
Section 1. No person shall be deprived of life, liberty, or property without
due process of law, nor shall any person be denied the equal protection of
the laws.
The petitioners assail Executive Order No. 1 because it is violative of this
constitutional safeguard. They contend that it does not apply equally to all
members of the same class such that the intent of singling out the "previous
administration" as its sole object makes the PTC an "adventure in partisan
hostility."66 Thus, in order to be accorded with validity, the commission
must also cover reports of graft and corruption in virtually all
administrations previous to that of former President Arroyo. 67
The petitioners argue that the search for truth behind the reported cases of
graft and corruption must encompass acts committed not only during the
administration of former President Arroyo but also during prior
administrations where the "same magnitude of controversies and
anomalies"68 were reported to have been committed against the Filipino
people. They assail the classification formulated by the respondents as it
does not fall under the recognized exceptions because first, "there is no
substantial distinction between the group of officials targeted for
investigation by Executive Order No. 1 and other groups or persons who
abused their public office for personal gain; and second, the selective
classification is not germane to the purpose of Executive Order No. 1 to end
corruption."69 In order to attain constitutional permission, the petitioners
advocate that the commission should deal with "graft and grafters prior and
subsequent to the Arroyo administration with the strong arm of the law with
equal force."70
Position of respondents
According to respondents, while Executive Order No. 1 identifies the
"previous administration" as the initial subject of the investigation,
following Section 17 thereof, the PTC will not confine itself to cases of
large scale graft and corruption solely during the said
administration.71 Assuming arguendo that the commission would confine its
proceedings to officials of the previous administration, the petitioners argue
that no offense is committed against the equal protection clause for "the
segregation of the transactions of public officers during the previous
administration as possible subjects of investigation is a valid classification
based on substantial distinctions and is germane to the evils which the
Executive Order seeks to correct."72 To distinguish the Arroyo
administration from past administrations, it recited the following:
First. E.O. No. 1 was issued in view of widespread reports of large scale
graft and corruption in the previous administration which have eroded
public confidence in public institutions. There is, therefore, an urgent call
for the determination of the truth regarding certain reports of large scale
graft and corruption in the government and to put a closure to them by the
filing of the appropriate cases against those involved, if warranted, and to
deter others from committing the evil, restore the people’s faith and
confidence in the Government and in their public servants.
Second. The segregation of the preceding administration as the object of
fact-finding is warranted by the reality that unlike with administrations long
gone, the current administration will most likely bear the immediate
consequence of the policies of the previous administration.
Third. The classification of the previous administration as a separate class
for investigation lies in the reality that the evidence of possible criminal
activity, the evidence that could lead to recovery of public monies illegally
dissipated, the policy lessons to be learned to ensure that anti-corruption
laws are faithfully executed, are more easily established in the regime that
immediately precede the current administration.
Fourth. Many administrations subject the transactions of their predecessors
to investigations to provide closure to issues that are pivotal to national life
or even as a routine measure of due diligence and good housekeeping by a
nascent administration like the Presidential Commission on Good
Government (PCGG), created by the late President Corazon C. Aquino
under Executive Order No. 1 to pursue the recovery of ill-gotten wealth of
her predecessor former President Ferdinand Marcos and his cronies, and the
Saguisag Commission created by former President Joseph Estrada under
Administrative Order No, 53, to form an ad-hoc and independent citizens’
Page 58 of 60 CONSTI2 EQUAL PROTECTION
committee to investigate all the facts and circumstances surrounding
"Philippine Centennial projects" of his predecessor, former President Fidel
V. Ramos.73 [Emphases supplied]
Concept of the Equal Protection Clause
One of the basic principles on which this government was founded is that of
the equality of right which is embodied in Section 1, Article III of the 1987
Constitution. The equal protection of the laws is embraced in the concept of
due process, as every unfair discrimination offends the requirements of
justice and fair play. It has been embodied in a separate clause, however, to
provide for a more specific guaranty against any form of undue favoritism
or hostility from the government. Arbitrariness in general may be
challenged on the basis of the due process clause. But if the particular act
assailed partakes of an unwarranted partiality or prejudice, the sharper
weapon to cut it down is the equal protection clause.74
"According to a long line of decisions, equal protection simply requires that
all persons or things similarly situated should be treated alike, both as to
rights conferred and responsibilities imposed."75 It "requires public bodies
and institutions to treat similarly situated individuals in a similar
manner."76 "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 statue or by its
improper execution through the state’s duly constituted authorities." 77 "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."78
The equal protection clause is aimed at all official state actions, not just
those of the legislature.79 Its inhibitions cover all the departments of the
government including the political and executive departments, and extend to
all actions of a state denying equal protection of the laws, through whatever
agency or whatever guise is taken. 80
It, however, does not require the universal application of the laws to all
persons or things without distinction. What it simply requires is equality
among equals as determined according to a valid classification. Indeed, the
equal protection clause permits classification. Such classification, however,
to be valid must pass the test of reasonableness. The test has four requisites:
(1) The classification rests on substantial distinctions; (2) It is germane to
the purpose of the law; (3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.81 "Superficial
differences do not make for a valid classification."82
For a classification to meet the requirements of constitutionality, it must
include or embrace all persons who naturally belong to the class. 83 "The
classification will be regarded as invalid if all the members of the class are
not similarly treated, both as to rights conferred and obligations imposed. It
is not necessary that the classification be made with absolute symmetry, in
the sense that the members of the class should possess the same
characteristics in equal degree. Substantial similarity will suffice; and as
long as this is achieved, all those covered by the classification are to be
treated equally. The mere fact that an individual belonging to a class differs
from the other members, as long as that class is substantially distinguishable
from all others, does not justify the non-application of the law to him."84
The classification must not be based on existing circumstances only, or so
constituted as to preclude addition to the number included in the class. It
must be of such a nature as to embrace all those who may thereafter be in
similar circumstances and conditions. It must not leave out or
"underinclude" those that should otherwise fall into a certain classification.
As elucidated in Victoriano v. Elizalde Rope Workers' Union85 and
reiterated in a long line of cases,86
The guaranty of equal protection of the laws is not a guaranty of equality in
the application of the laws upon all citizens of the state. It is not, therefore, a
requirement, in order to avoid the constitutional prohibition against
inequality, that every man, woman and child should be affected alike by a
statute. Equality of operation of statutes does not mean indiscriminate
operation on persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not identity of
rights. The Constitution does not require that things which are different in
fact be treated in law as though they were the same. The equal protection
clause does not forbid discrimination as to things that are different. It does
not prohibit legislation which is limited either in the object to which it is
directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or practice
because they agree with one another in certain particulars. A law is not
invalid because of simple inequality. The very idea of classification is that
of inequality, so that it goes without saying that the mere fact of inequality
in no manner determines the matter of constitutionality. All that is required
of a valid classification is that it be reasonable, which means that the
classification should be based on substantial distinctions which make for
real differences, that it must be germane to the purpose of the law; that it
must not be limited to existing conditions only; and that it must apply
equally to each member of the class. This Court has held that the standard is
satisfied if the classification or distinction is based on a reasonable
foundation or rational basis and is not palpably arbitrary. [Citations omitted]
Applying these precepts to this case, Executive Order No. 1 should be
struck down as violative of the equal protection clause. The clear mandate
of the envisioned truth commission is to investigate and find out the truth
"concerning the reported cases of graft and corruption during the previous
administration"87 only. The intent to single out the previous administration
is plain, patent and manifest. Mention of it has been made in at least three
portions of the questioned executive order. Specifically, these are:
WHEREAS, there is a need for a separate body dedicated solely to
investigating and finding out the truth concerning the reported cases of graft
and corruption during the previous administration, and which will
recommend the prosecution of the offenders and secure justice for all;
SECTION 1. Creation of a Commission. – There is hereby created
the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as
the "COMMISSION," which shall primarily seek and find the truth on,
and toward this end, investigate reports of graft and corruption of such scale
and magnitude that shock and offend the moral and ethical sensibilities of
the people, committed by public officers and employees, their co-principals,
accomplices and accessories from the private sector, if any, during the
previous administration; and thereafter recommend the appropriate action or
measure to be taken thereon to ensure that the full measure of justice shall
be served without fear or favor.
SECTION 2. Powers and Functions. – The Commission, which shall have
all the powers of an investigative body under Section 37, Chapter 9, Book I
of the Administrative Code of 1987, is primarily tasked to conduct a
thorough fact-finding investigation of reported cases of graft and corruption
referred to in Section 1, involving third level public officers and higher,
their co-principals, accomplices and accessories from the private sector, if
any, during the previous administration and thereafter submit its finding and
recommendations to the President, Congress and the Ombudsman.
[Emphases supplied]
In this regard, it must be borne in mind that the Arroyo administration is but
just a member of a class, that is, a class of past administrations. It is not a
class of its own. Not to include past administrations similarly situated
constitutes arbitrariness which the equal protection clause cannot sanction.
Such discriminating differentiation clearly reverberates to label the
commission as a vehicle for vindictiveness and selective retribution.
Though the OSG enumerates several differences between the Arroyo
administration and other past administrations, these distinctions are not
substantial enough to merit the restriction of the investigation to the
"previous administration" only. The reports of widespread corruption in the
Arroyo administration cannot be taken as basis for distinguishing said
administration from earlier administrations which were also blemished by
similar widespread reports of impropriety. They are not inherent in, and do
not inure solely to, the Arroyo administration. As Justice Isagani Cruz put it,
"Superficial differences do not make for a valid classification."88
The public needs to be enlightened why Executive Order No. 1 chooses to
limit the scope of the intended investigation to the previous administration
only. The OSG ventures to opine that "to include other past administrations,
at this point, may unnecessarily overburden the commission and lead it to
lose its effectiveness."89The reason given is specious. It is without doubt
irrelevant to the legitimate and noble objective of the PTC to stamp out or
"end corruption and the evil it breeds."90
The probability that there would be difficulty in unearthing evidence or that
the earlier reports involving the earlier administrations were already
inquired into is beside the point. Obviously, deceased presidents and cases
which have already prescribed can no longer be the subjects of inquiry by
the PTC. Neither is the PTC expected to conduct simultaneous
investigations of previous administrations, given the body’s limited time
and resources. "The law does not require the impossible" (Lex non cogit ad
impossibilia).91
Given the foregoing physical and legal impossibility, the Court logically
recognizes the unfeasibility of investigating almost a century’s worth of
graft cases. However, the fact remains that Executive Order No. 1 suffers
from arbitrary classification. The PTC, to be true to its mandate of searching
for the truth, must not exclude the other past administrations. The PTC
must, at least, have the authority to investigate all past administrations.
While reasonable prioritization is permitted, it should not be arbitrary lest
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it be struck down for being unconstitutional. In the often quoted language of
Yick Wo v. Hopkins,92
Though the law itself be fair on its face and impartial in appearance, yet, if
applied and administered by public authority with an evil eye and an
unequal hand, so as practically to make unjust and illegal discriminations
between persons in similar circumstances, material to their rights, the denial
of equal justice is still within the prohibition of the constitution. [Emphasis
supplied]
It could be argued that considering that the PTC is an ad hoc body, its scope
is limited. The Court, however, is of the considered view that although its
focus is restricted, the constitutional guarantee of equal protection under the
laws should not in any way be circumvented. The Constitution is the
fundamental and paramount law of the nation to which all other laws must
conform and in accordance with which all private rights determined and all
public authority administered.93 Laws that do not conform to the
Constitution should be stricken down for being unconstitutional. 94While the
thrust of the PTC is specific, that is, for investigation of acts of graft and
corruption, Executive Order No. 1, to survive, must be read together with
the provisions of the Constitution. To exclude the earlier administrations in
the guise of "substantial distinctions" would only confirm the petitioners’
lament that the subject executive order is only an "adventure in partisan
hostility." In the case of US v. Cyprian,95 it was written: "A rather limited
number of such classifications have routinely been held or assumed to be
arbitrary; those include: race, national origin, gender, political activity or
membership in a political party, union activity or membership in a labor
union, or more generally the exercise of first amendment rights."
To reiterate, in order for a classification to meet the requirements of
constitutionality, it must include or embrace all persons who naturally
belong to the class.96 "Such a classification must not be based on existing
circumstances only, or so constituted as to preclude additions to the number
included within a class, but must be of such a nature as to embrace all those
who may thereafter be in similar circumstances and conditions.
Furthermore, all who are in situations and circumstances which are relative
to the discriminatory legislation and which are indistinguishable from those
of the members of the class must be brought under the influence of the law
and treated by it in the same way as are the members of the class." 97
The Court is not unaware that "mere underinclusiveness is not fatal to the
validity of a law under the equal protection clause."98 "Legislation is not
unconstitutional merely because it is not all-embracing and does not include
all the evils within its reach."99 It has been written that a regulation
challenged under the equal protection clause is not devoid of a rational
predicate simply because it happens to be incomplete.100 In several
instances, the underinclusiveness was not considered a valid reason to strike
down a law or regulation where the purpose can be attained in future
legislations or regulations. These cases refer to the "step by step"
process.101 "With regard to equal protection claims, a legislature does not
run the risk of losing the entire remedial scheme simply because it fails,
through inadvertence or otherwise, to cover every evil that might
conceivably have been attacked."102
In Executive Order No. 1, however, there is no inadvertence. That the
previous administration was picked out was deliberate and intentional as can
be gleaned from the fact that it was underscored at least three times in the
assailed executive order. It must be noted that Executive Order No. 1 does
not even mention any particular act, event or report to be focused on unlike
the investigative commissions created in the past. "The equal protection
clause is violated by purposeful and intentional discrimination."103
To disprove petitioners’ contention that there is deliberate discrimination,
the OSG clarifies that the commission does not only confine itself to cases
of large scale graft and corruption committed during the previous
administration.104The OSG points to Section 17 of Executive Order No. 1,
which provides:
SECTION 17. Special Provision Concerning Mandate. If and when in the
judgment of the President there is a need to expand the mandate of the
Commission as defined in Section 1 hereof to include the investigation of
cases and instances of graft and corruption during the prior administrations,
such mandate may be so extended accordingly by way of a supplemental
Executive Order.
The Court is not convinced. Although Section 17 allows the President the
discretion to expand the scope of investigations of the PTC so as to include
the acts of graft and corruption committed in other past administrations, it
does not guarantee that they would be covered in the future. Such expanded
mandate of the commission will still depend on the whim and caprice of the
President. If he would decide not to include them, the section would then be
meaningless. This will only fortify the fears of the petitioners that the
Executive Order No. 1 was "crafted to tailor-fit the prosecution of officials
and personalities of the Arroyo administration."105
The Court tried to seek guidance from the pronouncement in the case SO ORDERED.
of Virata v. Sandiganbayan,106 that the "PCGG Charter (composed of
Executive Orders Nos. 1, 2 and 14) does not violate the equal protection
clause." The decision, however, was devoid of any discussion on how such
conclusory statement was arrived at, the principal issue in said case being
only the sufficiency of a cause of action.

A final word

The issue that seems to take center stage at present is - whether or not the
Supreme Court, in the exercise of its constitutionally mandated power of
Judicial Review with respect to recent initiatives of the legislature and the
executive department, is exercising undue interference. Is the Highest
Tribunal, which is expected to be the protector of the Constitution, itself
guilty of violating fundamental tenets like the doctrine of separation of
powers? Time and again, this issue has been addressed by the Court, but it
seems that the present political situation calls for it to once again explain the
legal basis of its action lest it continually be accused of being a hindrance to
the nation’s thrust to progress.

The Philippine Supreme Court, according to Article VIII, Section 1 of the

1987 Constitution, is vested with Judicial Power that "includes the duty of
the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there
has been a grave of abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government."

Furthermore, in Section 4(2) thereof, it is vested with the power of judicial

review which is the power to declare a treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation unconstitutional. This power also includes the duty
to rule on the constitutionality of the application, or operation of presidential
decrees, proclamations, orders, instructions, ordinances, and other
regulations. These provisions, however, have been fertile grounds of
conflict between the Supreme Court, on one hand, and the two co-equal
bodies of government, on the other. Many times the Court has been accused
of asserting superiority over the other departments.

To answer this accusation, the words of Justice Laurel would be a good

source of enlightenment, to wit: "And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority over the
other departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation assigned to it
by the Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the
rights which that instrument secures and guarantees to them."107

Thus, the Court, in exercising its power of judicial review, is not imposing
its own will upon a co-equal body but rather simply making sure that any
act of government is done in consonance with the authorities and rights
allocated to it by the Constitution. And, if after said review, the Court finds
no constitutional violations of any sort, then, it has no more authority of
proscribing the actions under review. Otherwise, the Court will not be
deterred to pronounce said act as void and unconstitutional.

It cannot be denied that most government actions are inspired with noble
intentions, all geared towards the betterment of the nation and its people.
But then again, it is important to remember this ethical principle: "The end
does not justify the means." No matter how noble and worthy of admiration
the purpose of an act, but if the means to be employed in accomplishing it is
simply irreconcilable with constitutional parameters, then it cannot still be
allowed.108 The Court cannot just turn a blind eye and simply let it pass. It
will continue to uphold the Constitution and its enshrined principles.

"The Constitution must ever remain supreme. All must bow to the mandate
of this law. Expediency must not be allowed to sap its strength nor greed for
power debase its rectitude."109

Lest it be misunderstood, this is not the death knell for a truth commission
as nobly envisioned by the present administration. Perhaps a revision of the
executive issuance so as to include the earlier past administrations would
allow it to pass the test of reasonableness and not be an affront to the
Constitution. Of all the branches of the government, it is the judiciary which
is the most interested in knowing the truth and so it will not allow itself to
be a hindrance or obstacle to its attainment. It must, however, be
emphasized that the search for the truth must be within constitutional
bounds for "ours is still a government of laws and not of men."110

WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is

hereby declared UNCONSTITUTIONAL insofar as it is violative of the
equal protection clause of the Constitution.

As also prayed for, the respondents are hereby ordered to cease and desist
from carrying out the provisions of Executive Order No. 1.
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