[G.R. No. 98050. March 17, 1994.

PHILIPPINE PHOSPHATE FERTILIZER

CORPORATION, petitioner, vs. HON. RUBEN D. TORRES,
Secretary of Labor and Employment, HON. RODOLFO S.
MILADO, Department of Labor and Employment Mediator-
Arbiter for Region VIII, Tacloban City, and PHILPHOS
MOVEMENT FOR PROGRESS, INC. (PMPI), respondents.

DECISION

BELLOSILLO, J : p

PHILIPPINE PHOSPHATE FERTILIZER CORPORATION (PHILPHOS)

assails the decision of the Secretary of Labor of 7 August 1990 affirming
the order of the Mediator-Arbiter of 28 March 1990 which directed the
immediate conduct of a certification election among
the supervisory, professional or technical, and confidential employees of
petitioner corporation.prLL

On 7 July 1989, Philphos Movement for Progress, Inc. (PMPI for

brevity), filed with the Department of Labor and Employment a petition
for certification election among the supervisory employees of petitioner,
alleging that as a supervisory union duly registered with the Department
of Labor and Employment it was seeking to represent the supervisory
employees of Philippine Phosphate Fertilizer Corporation. LibLex

The petition for certification election filed by PMPI was not opposed
by PHILPHOS. In fact, on 11 August 1989, PHILPHOS submitted a position
paper with the Mediator-Arbiter stating that its management welcomed
the creation of a supervisory employees' union provided the necessary
requisites of law were properly observed, but exempting from the union
its superintendents who were managerial and not supervisory
employees as they managed a division, subdivision or section, and were
vested with powers or prerogatives to lay down and execute
management policies. PHILPHOS also asserted that its professional or
technical employees were not within the definition of supervisory
employees under the Labor Code as they were immediately under the
direction and supervision of its superintendents and supervisors.
Moreover, the professional and technical employees did not have a staff
of workers under them. Consequently, petitioner prayed for the exclusion
of itssuperintendents and professional/technical employees from the
PMPI supervisory union.
 On 13 October 1989, Mediator-Arbiter Rodolfo S. Milado issued an
order directing the holding of a certification election among
the supervisory employees of petitioner, excluding therefrom
the superintendents and the professional and technical employees. He
also directed the parties to attend the pre-election conference on 19
April 1990 for the determination of the mechanics of the election process
and the qualifications and eligibility of those allowed to vote.
On 15 November 1989, PMPI filed an amended petition with the
Mediator-Arbiter wherein it sought to represent not only the supervisory
employees of petitioner but also
its professional/technical and confidential employees. The amended
petition was filed in view of the amendment to the PMPI Construction
which included in its membership
the professional/technical and confidential employees.
On 14 December 1989, the parties therein agreed to submit their
respective position papers and to consider the amended petition
submitted for decision on the basis thereof and related documents.
On 28 March 1990, Mediator-Arbiter Milado issued an order granting
the petition and directing the holding of a certification election among
the "supervisory, professional (engineers, analysts, mechanics,
accountants, nurses, midwives, etc.), technical, and confidential
employees" 1 to comprise the proposed bargaining unit.
On 16 April 1990, PHILPHOS appealed the order of 28 March 1990 to
the Secretary of Labor and Employment who on 7 August 1990 rendered a
decision through Undersecretary Bienvenido Laguesma dismissing the
appeal. PHILPHOS moved for reconsideration but the same was denied;
hence, the instant petition alleging grave abuse of discretion on the part
of public respondents in rendering the assailed rulings.
Cdpr

On 8 July 1991, this Court issued a temporary restraining order

enjoining respondents from holding the certification election among
petitioner's supervisory, professional/technical, and confidential
employees scheduled on 12 July 1991.
There are two (2) issues raised by petitioner: (1) whether it was
denied due process in the proceedings before respondent Mediator-
Arbiter; and, (2) whether itsprofessional/technical and confidential
employees may validly join respondent PMPI union which is composed
of supervisors.
PHILPHOS claims that it was denied due process when respondent
Mediator-Arbiter granted the amended petition of respondent PMPI
without according PHILPHOS a new opportunity to be heard.
 We do not see it the way PHILPHOS does here. The essence of due
process is simply an opportunity to be heard or, as applied to
administrative proceedings, an opportunity to explain one's side or an
opportunity to seek a reconsideration of the action or ruling complained
of. 2 Where, as in the instant case, petitioner PHILPHOS agreed to file its
position paper with the Mediator-Arbiter and to consider the case
submitted for decision on the basis of the position papers filed by the
parties, there was sufficient compliance with the requirement of due
process, as petitioner was afforded reasonable opportunity to present its
side. 3 Moreover, petitioner could have, if it so desired, insisted on a
hearing to confront and examine the witnesses of the other party. But it
did not; 4 instead, it opted to submit its position paper with the Mediator-
Arbiter. Besides, petitioner had all the opportunity to ventilate its
arguments in its appeal to the Secretary of Labor.
As regards the second issue, we are with petitioner that being
a supervisory union, respondent PMPI cannot represent
the professional/technical and confidential employees of petitioner
whose positions we find to be more of the rank and file than supervisory.
With the enactment in March 1989 of R.A. 6715, employees were
thereunder reclassified into three (3) groups, namely: (a) managerial
employees, (b) supervisory employees, and (c) rank and file employees.
The category of supervisory employees is once again recognized in the
present law.
Article 212, par. (m), of the Labor Code, as amended, provides that
"(s)upervisory employees are those who, in the interest of the employer,
effectively recommend such managerial actions if the exercise of such
authority is not merely routinary or clerical in nature but requires the use
of independent judgment." The definition of managerial employees is
limited to those having authority to hire and fire, while those who only
recommend effectively the hiring or firing or transfer of personnel are
considered closer to rank and file employees. The exclusion therefore of
mid-level executives from the category of managers has brought about a
third classification, the supervisory employees. The peculiar role of
supervisors is such that while they are not managers, when they
recommend action implementing management policy or ask for the
discipline or dismissal of subordinates, they identify with the interests of
the employer and may act contrary to the interests of the rank and file. 5
In its position paper submitted to the Mediator-Arbiter, petitioner
described the positions and functions of its professional/technical
employees, (engineers, analysts, mechanics, accountants, nurses, and
midwives). The guidelines, which were not refuted by respondent PMPI,
state:
 . . . Professional and Technical positions are those whose
primary duty consists of the performance of work directly related
to management programs; who customarily, regularly and
routinarily exercise judgment in the application of concepts,
methods, systems and procedures in their respective fields of
specialization; who regularly and directly assist a managerial
and/or supervisory employee, execute under general supervision,
work along specialized or technical lines requiring special training,
experience or knowledge, or execute under general supervision
special assignments and tasks . . . They are immediately under the
direction and supervision of supervisors or superintendents. They
have no men under them but are regularly called upon by their
supervisors or superintendents on some technical matters. 6
Moreover, Herculano A. Duhaylungsod, Personnel Officer of
petitioner, attested that there was no community of interests between
the supervisors of petitioner and the professional/technical employees;
that as of 25 July 1990, personnel records showed that there were
125 supervisors and 271 professional/technical employees; that of the
271 professional/technical employees, 150 were directly under and being
supervised by supervisors, while the rest were staff members of
superintendents. 7
The certification of Personnel Officer Duhaylungsod that
its professional/technical employees occupy positions that are non-
supervisory is evidence that said employees belong to the rank and
file. 8 Quite obviously, these professional/technical employees cannot
effectively recommend managerial actions with the use of
independent judgment because they are under the supervision of
superintendents and supervisors. Because it is unrefuted that
theseprofessional/technical employees are performing non-
supervisory functions, hence considered admitted, they should be
classified, at least for purposes of this case, as rank and file
employees. Consequently, these professional/technical
employees cannot be allowed to join a union composed of supervisors.
Conversely, supervisory employeescannot join a labor organization of
employees under their supervision but may validly form a separate
organization of their own. 9 This is provided in Art. 245 of theLabor
Code, as amended by R.A. No. 6715, to wit:
. . . Managerial employees are not eligible to join, assist or form
any labor organization. Supervisory employees shall not be eligible
for membership in a labor organization of the rank and file
employees but may join, assist or form separate labor
organizations of their own.llcd

Respondent PMPI is supposed to be a union of 125 supervisors. If

the professional/technical employees are included as members, and
records show that they are 271 in all or much more than the supervisors,
then PMPI will turn out to be a rank and file union with
the supervisors as members.
This is precisely the situation which the law prohibits. It would
create an obvious conflict of views among the members, or at least
between two (2) groups of members espousing opposing interests. The
intent of the law is to avoid a situation where supervisors would merge
with the rank and file, or where the supervisors' labor organization would
represent conflicting interests, especially where, as in the case at bar,
the supervisors will be commingling with those employees whom they
directly supervise in their own bargaining unit. Members of the
supervisory union might refuse to carry out disciplinary measures
against their co-member rank and file employees. 10
Supervisors have the right to form their own union or labor
organization. What the law prohibits is a union whose membership
comprises of supervisors merging with the rank and file
employees because this is where conflict of interests may arise in the
areas of discipline, collective bargaining and
strikes. 11 Theprofessional/technical employees of petitioner therefore
may join the existing rank and file union, or form a union separate and
distinct from the existing union organized by the rank and file employees
of the same company.
As to the confidential employees of the petitioner, the latter has not
shown any proof or compelling reason to exclude them from joining
respondent PMPI and from participating in the certification election,
unless these confidential employees are the same professional/technical
employees whom we find to be occupying rank and file positions. LibLex

WHEREFORE, the petition is GRANTED. The decision of respondent

Secretary of Labor of 7 August 1990, as well as the order of the
respondent Mediator-Arbiter of 28 March 1990, is SET ASIDE. The
professional/technical employees of petitioner Philippine Phosphate
Fertilizer Corporation (PHILPHOS) are declared disqualified from
affiliating with respondent Philphos Movement for Progress, Inc. (PMPI).
The Department of Labor is directed to order immediately the
conduct of certification election among the supervisory employees of
petitioner, particularly excluding therefrom its professional and technical
employees.
SO ORDERED.
(Philippine Phosphate Fertilizer Corp. v. Torres, G.R. No. 98050, [March
|||

17, 1994], 301 PHIL 338-347)

 [G.R. No. 131652. March 9, 1998.]

BAYANI M. ALONTE, petitioner, vs. HON. MAXIMO A.

SAVELLANO JR., NATIONAL BUREAU OF INVESTIGATION and
PEOPLE OF THE PHILIPPINES,respondents.

[G.R. No. 131728. March 9, 1998.]

BUENAVENTURA CONCEPCION, petitioner, vs. JUDGE

MAXIMO SAVELLANO, JR., THE PEOPLE OF THE PHILIPPINES,
and JUVIELYN Y. PUNONGBAYAN,respondents.

Fortun, Narvasa & Salazar for petitioner Bayani M. Alonte.

Ramon C. Casano for petitioner in 131728.
The Law Firm of Raymundo A. Armovit for respondent Judge.

SYNOPSIS

Bayani M. Alonte, then incumbent Mayor of Biñan, Laguna and

Buenaventura Concepcion were charged with rape based on the
complaint of Juvielyn Punongbayan. During the pendency of the
petition for change of venue, Juvielyn, assisted by her parents and
counsel, executed an affidavit of desistance. The petition for change
of venue was granted and the case was raffled to respondent judge
who issued warrants of arrest for petitioners. Juvielyn reiterated her
"decision to abide by her Affidavit of Desistance." Petitioners pleaded
not guilty when arraigned and waived pre-trial. Immediately following
arraignment the prosecution presented Juvielyn who testified to the
validity and voluntariness of her affidavit of desistance and that she
has no interest in further prosecuting the action. The Prosecution then
manifested that the State had no further evidence against the accused
to prove the guilt of the accused. She then moved for the "dismissal of
the case" against both accused-petitioners. The two accused did not
present any countervailing evidence, did not take the witness stand
nor admitted the act charged in the information. Thereupon,
respondent judge said that "the case was submitted for decision." On
December 18, 1997, a decision was rendered convicting petitioners of
rape.IEaCDH

Due process in criminal proceedings, in particular, require (a) that

the court or tribunal trying the case is properly clothed with judicial
power to hear and determine the matter before it; (b) that jurisdiction
is lawfully acquired by it over the person of the accused; (c) that the
accused is given an opportunity to be heard; and (d) that judgment is
rendered only upon lawful hearing. The above constitutional and
jurisprudential postulates, by now elementary and deeply imbedded in
our own criminal justice system, are mandatory and indispensable.
The order of trial in criminal cases is clearly spelled out in
Section 3, Rule 119, of the Rules of Court which should be strictly
adhered to. There can be no short-cut to the legal process, and there
can be no excuse for not affording an accused his full day in court.
Due process, rightly occupying the first and foremost place of honor in
our Bill of Rights, is an enshrined and invaluable right that cannot be
denied even to the most undeserving.
An affidavit of desistance by itself, even when construed as a
pardon in the so-called "private crimes," is not a ground for the
dismissal of the criminal case once the action has been instituted.
Prosecutors are expected not merely to discharge their duties
with the highest degree of excellence, professionalism and skill but
also to act each time with utmost devotion and dedication to duty. The
Court is hopeful that the zeal which has been exhibited many times in
the past, although regrettably a disappointment on few occasions, will
not be wanting in the proceedings yet to follow. TEDaAc

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; DUE PROCESS IN

CRIMINAL PROCEEDINGS; REQUISITES. — Jurisprudence
acknowledges that due process in criminal proceedings, in particular,
require (a) that the court or tribunal trying the case is properly clothed
with judicial power to hear and determine the matter before it; (b) that
jurisdiction is lawfully acquired by it over the person of the accused;
(c) that the accused is given an opportunity to be heard; and (d) that
judgment is rendered only upon lawful hearing. The above
constitutional and jurisprudential postulates, by now elementary and
deeply imbedded in our own criminal justice system, are mandatory
and indispensable. The principles find universal acceptance and are
tersely expressed in the oft-quoted statement that procedural due
process cannot possibly be met without a "law which hears before it
condemns, which proceeds upon inquiry and renders judgment only
after trial."
2. ID.; ID.; THERE CAN BE NO SHORT-CUT TO THE LEGAL
PROCESS AND THERE CAN BE NO EXCUSE FOR NOT AFFORDING AN
ACCUSED HIS FULL DAY IN COURT. — The existence of the waiver
must be positively demonstrated. The standard of waiver requires that
it "not only must be voluntary, but must be knowing, intelligent, and
done with sufficient awareness of the relevant circumstances and
likely consequences." Mere silence of the holder of the right should
not be so construed as a waiver of right, and the courts must indulge
every reasonable presumption against waiver. The Solicitor General
has aptly discerned a few of the deviations from what otherwise
should have been the regular course of trial: (1) Petitioners have not
been directed to present evidence to prove their defenses nor have
dates therefor been scheduled for the purpose; (2) the parties have not
been given the opportunity to present rebutting evidence nor have
dates been set by respondent Judge for the purpose; and (3)
petitioners have not admitted the act charged in the Information so as
to justify any modification in the order of trial. There can be no short-
cut to the legal process, and there can be no excuse for not affording
an accused his full day in court. Due process, rightly occupying the
first and foremost place of honor in our Bill of Rights, is an enshrined
and invaluable right that cannot be denied even to the most
undeserving.
3. ID.; EVIDENCE; AFFIDAVIT OF DESISTANCE; SHOULD NOT BE
GIVEN PROBATIVE VALUE. — In the case of People vs. Junio, the Court
held that: Thus, we have declared that at most the retraction is an
afterthought which should not be given value. It would be a dangerous
rule to reject the testimony taken before the court of justice simply
because the witness who has given it later on changed his mind for
one reason or another. Such a rule will make a solemn trial a mockery
and place the investigation at the mercy of unscrupulous witnesses.
Because affidavits of retraction can easily be secured from poor and
ignorant witnesses, usually for monetary consideration, the Court has
invariably regarded such affidavits as exceedingly unreliable. [ Flores
vs. People, 211 SCRA 622, citing De Guzman vs. Intermediate
Appellate Court, 184 SCRA 128; People vs. Galicia, 123 SCRA 550.]
4. ID.; COURTS; WITH INHERENT POWER TO COMPEL THE
ATTENDANCE OF ANY PERSON TO TESTIFY. — Courts have the
inherent power to compel the attendance of any person to testify in a
case pending before it, and a party is not precluded from invoking that
authority.
5. ID.; EVIDENCE; AFFIDAVIT OF DESISTANCE; THOUGH
CONSTRUED AS PARDON IN "PRIVATE CRIMES," IT IS NOT A GROUND
FOR DISMISSAL OF CRIMINAL ACTION. — An affidavit of desistance by
itself, even when construed as a pardon in the so-called "private
crimes," is not a ground for the dismissal of the criminal case once the
action has been instituted. The affidavit, nevertheless, may, as so
earlier intimated, possibly constitute evidence whose weight or
probative value, like any other piece of evidence, would be up to the
court for proper evaluation.EaSCAH

6. ID.; ID.; DISQUALIFICATION OF JUDGES; IT IS NOT ENOUGH

THAT A COURT IS IMPARTIAL, IT MUST ALSO BE PERCEIVED TO BE
IMPARTIAL. — Relative to the prayer for the disqualification of Judge
Savellano from further hearing the case, the Court is convinced that
Judge Savellano should, given the circumstances, be best excused
from the case. Possible animosity between the personalities here
involved may not all be that unlikely. The pronouncement of this Court
in the old case of Luque vs. Kayanan could again be said: All suitors
are entitled to nothing short of the cold neutrality of an independent,
wholly-free, disinterested and unbiased tribunal. Second only to the
duty of rendering a just decision is the duty of doing it in a manner
that will not arouse any suspicion as to the fairness and integrity of
the Judge. It is not enough that a court is impartial, it must also be
perceived as impartial.
7. ID.; ATTORNEYS; USE OF INTEMPERATE LANGUAGE AND
UNKIND ASCRIPTIONS CAN HARDLY BE JUSTIFIED. — While the lawyer
in promoting the cause of his client or defending his rights might do so
with fervor, simple courtesy demands that it be done within the
bounds of propriety and decency. The use of intemperate language and
unkind ascriptions hardly can be justified nor can have a place in the
dignity of judicial forum. Civility among members of the legal
profession is a treasured tradition that must at no time be lost to it.
DHEcCT

8. ID.; CRIMINAL PROCEDURE; PROSECUTORS; EXPECTED TO

ACT WITH UTMOST DEVOTION AND DEDICATION TO DUTY. — Finally, it
may be opportune to say, once again, that prosecutors are expected
not merely to discharge their duties with the highest degree of
excellence, professionalism and skill but also to act each time with
utmost devotion and dedication to duty. The Court is hopeful that the
zeal which has been exhibited many times in the past, although
regrettably a disappointment on few occasions, will not be wanting in
the proceedings yet to follow.
PUNO, J., separate opinion:
1. REMEDIAL LAW; EVIDENCE; RECANTATION; CONSTRUED. — A
recantation usually applies to a repudiation by a complainant or a
witness, either for the prosecution or the defense, who has previously
given an extrajudicial statement or testimony in court. Repudiation
may be made in writing, i.e., by sworn statement, or by testifying on
the witness stand.
2. ID.; ID.; ID.; GENERALLY LOOKED UPON WITH DISFAVOR. —
Mere retraction by a witness or by complainant of his or her testimony
does not necessarily vitiate the original testimony or statement, if
credible. The general rule is that courts look with disfavor upon
retractions of testimonies previously given in court. This rule applies
to crimes, offenses as well as to administrative offenses. The reason
is because affidavits of retraction can easily be secured from poor and
ignorant witnesses, usually through intimidation or for monetary
consideration. Moreover, there is always the probability that they will
later be repudiated and there would never be an end to criminal
litigation. It would also be a dangerous rule for courts to reject
testimonies solemnly taken before courts of justice simply because
the witnesses who had given them later on changed their minds for
one reason or another. This would make solemn trials a mockery and
place the investigation of the truth at the mercy of unscrupulous
witnesses.
3. ID.; ID.; ID.; ID.; EXCEPTION. — The general rule
notwithstanding, the affidavit should not be peremptorily dismissed as
a useless scrap of paper. There are instances when a recantation may
create serious doubts as to the guilt of the accused. A retracted
statement or testimony must be subject to scrupulous examination.
The previous statement or testimony and the subsequent one must be
carefully compared and the circumstances under which each was
given and the reasons and motives for the change carefully
scrutinized. The veracity of each statement or testimony must be
tested by the credibility of the witness which is left for the judge to
decide. In short, only where there exists special circumstances in the
case which when coupled with the retraction raise doubts as to the
truth of the testimony or statement given, can a retraction be
considered and upheld.
4. ID.; ID.; AFFIDAVIT OF DESISTANCE, GENERALLY WITH NO
PERSUASIVE EFFECT. — An affidavit of desistance is understood to be
a sworn statement executed by a complainant in a criminal or
administrative case that he or she is discontinuing the action filed
upon his or her complaint for whatever reason he or she may cite. The
court attaches no persuasive value to a desistance especially when
executed as an afterthought. However, as in retractions, an affidavit of
desistance calls for a reexamination of the records of the case.cAHDES

5. ID.; ID.; ID.; WEIGHT IN PRIVATE CRIMES. — In private crimes,

an affidavit of desistance filed by a private complainant is also
frowned upon by the courts. Although such affidavit may deserve a
second look at the case, there is hardly an instance when this Court
upheld it in private crimes and dismissed the case on the sole basis
thereof. Indeed, a case is not dismissed upon mere affidavit of
desistance of the complainant, particularly where there exist special
circumstances that raise doubts as to the reliability of the affidavit.
6. ID.; CRIMINAL PROCEDURE; PRIVATE CRIMES; CANNOT BE
PROSECUTED EXCEPT UPON COMPLAINT OF OFFENDED PARTY. —
Private crimes cannot be prosecuted except upon complaint filed by
the offended party. In adultery and concubinage, the offended party
must implead both the guilty parties and must not have consented or
pardoned the offenders. In seduction, abduction, rape and acts of
lasciviousness, the complaint must be filed by the offended party or
her parents, grandparents or guardian. The complainant must not have
expressly pardoned the offender. The filing of a complaint in private
crimes is merely a condition precedent to the exercise by the proper
authorities of the power to prosecute the guilty parties. It is the
complaint that starts the prosecutory proceeding without which the
fiscal and the court cannot exercise jurisdiction over the case. Once
the complaint is filed, the action proceeds just as in any other crime.
7. CRIMINAL LAW; EXTINCTION OF CRIMINAL LIABILITY; MODES.
— Article 344 also provides for the extinction of criminal liability in
private crimes. It mentions two modes: pardon and marriage, which
when validly and timely made, result in the total extinction of criminal
liability of the offender. The pardon in private crimes must be made
before the institution of the criminal action. In adultery and
concubinage, the pardon may be express or implied while in seduction,
abduction, rape and acts of lasciviousness, the pardon must be
express. In all cases, the pardon must come prior to the institution of
the criminal action. After the case has been filed in court, any pardon
made by the private complainant, whether by sworn statement or on
the witness stand, cannot extinguish criminal liability. The only act
that extinguishes the penal action and the penalty that may have been
imposed is the marriage between the offender and the offended party.
 8. ID.; ID.; PARDON IN PRIVATE CRIMES; MUST COME BEFORE
INSTITUTION OF CRIMINAL ACTION. — Pardon by the offended party
extinguishes criminal liability when made while the crime is still
"private" and within the control of the offended party. But once the
case is filed in court, the pardon cannot ipso factooperate to dismiss
the case. After the institution of the criminal action, any pardon given
by the complainant to the offender would be unavailing, except of
course when the offender validly marries the offended party. The
offended party's pardon of the offender in a seduction case after the
criminal action had been instituted constitutes no bar to said action. A
pardon given in a rape case after the filing of the action in court
"comes too late to hide the shameful occurrence from public notice."
9. ID.; ID.; DESISTANCE, NOT A GROUND. — Article 344 does not
include desistance of the offended party from prosecuting the case as
a ground for extinction of criminal liability whether total or partial.
Hence, only when the desistance is grounded on forgiveness and
pardon and is made before the institution of the criminal action, can it
extinguish criminal liability. Desistance, per se, is not equivalent to
pardon.
10. ID.; ID.; ID.; CASE AT BAR. — In the case at bar, the "Affidavit
of Desistance" of Juvielyn is not an express pardon of the accused
and the crime committed. Private complainant desisted from
prosecuting the case against the petitioners because she wished "to
start life anew and live normally again." She reiterated this reason on
the witness stand. She complained that members of the media were
bothering and harassing her and that she wanted to go back to her
normal life. She never said that she forgave the petitioners. She did
not absolve them from their culpability. She did not give any
exculpatory fact that would raise doubts about her rape. She did not
say that she consented to petitioner Alonte's acts. Moreover, the rape
case is already in court and it is no longer her right to decide whether
or not the charge should be continued.
11. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS;
ACCUSED DENIED THEREOF WHERE JUDGMENT OF CONVICTION WAS
RENDERED WITHOUT TRIAL. — Justice Puno agrees with the majority
that the November 7, 1997 proceedings could not have been a trial on
the merits. First of all, the proceedings did not conform with the
procedure for trial as provided in the 1985 Rules on Criminal
Procedure. In the case at bar, petitioners were never instructed to
present evidence to prove their defenses. The parties were never given
the opportunity to present their respective evidence rebutting the
testimony of private complainant. There was no admission by
petitioners of the charge in the information as to justify a change in
 the order of trial. Second, the admission of private complainant's
affidavit of October 21, 1996 was made solely in response to
respondent judge's own questioning. It was this affidavit which
respondent judge used to convict the petitioners. This affidavit,
however, was not marked nor was it formally offered before the court.
Third, where there is a doubt as to the nature of the criminal
proceedings before the court, this doubt must be resolved in favor of
the accused who must be given the widest latitude of action to prove
his innocence. It is in petitioners' favor that the proceedings of
November 7, 1997 be treated as a hearing on the motion to dismiss,
not a trial on the merits. To rule otherwise will effectively deny
petitioners due process and all the other rights of an accused under
the Bill of Rights and our Rules in Criminal Procedure.AHacIS

12. REMEDIAL LAW; CRIMINAL PROCEDURE; RULES STRICTLY

ADHERED TO. — Our criminal rules of procedure strictly provide the
step by step procedure to be followed by courts in cases punishable by
death. This rule also applies to all other criminal cases, particularly
where the imposable penalty is reclusion perpetua. The reason for this
is to assure that the State makes no mistake in taking life and liberty
except that of the guilty.
13. ID.; EVIDENCE; EVIDENCE NOT FORMALLY OFFERED, NOT
TAKEN INTO CONSIDERATION. — Evidence not formally offered in
court will not be taken into consideration by the court in disposing of
the issues of the case. Any evidence which a party desires to submit
for the consideration of the court must formally be offered by him,
otherwise it is excluded and rejected. Indeed, following respondent
judge's finding and assuming that the November 7, 1997 hearing was
already a trial on the merits, petitioners were never afforded their
right to confront and cross-examine the witness. The court did not, at
the very least, inquire as to whether the petitioners wanted to cross-
examine private complainant with respect to her affidavit of October
21, 1996. No opportunity to cross-examine was afforded petitioners
and their counsels such that they cannot be deemed to have waived
said right by inaction.

DECISION

VITUG, J :
p

Pending before this Court are two separate petitions, one filed by
petitioner Bayani M. Alonte, docketed G.R. No. 131652, and the other
by petitioner Buenaventura Concepcion, docketed G.R. No. 131728,
that assail the decision of respondent Judge Maximo A. Savellano, Jr.,
of the Regional Trial Court ("RTC"), Branch 53, of Manila finding both
petitioners guilty beyond reasonable doubt of the crime of rape. The
two petitions were consolidated. llcd

On 05 December 1996, an information for rape was filed against

petitioners Bayani M. Alonte, an incumbent Mayor of Biñan, Laguna,
and Buenaventura Concepcion predicated on a complaint filed by
Juvie-lyn Punongbayan. The information contained the following
averments; thus:
"That on or about September 12, 1996, in Sto. Tomas, Biñan,
Laguna, and within the jurisdiction of this Honorable court, the
above named accused, who is the incumbent mayor of Biñan,
Laguna after giving complainant-child drinking water which made
her dizzy and weak, did then and there willfully, unlawfully and
feloniously have carnal knowledge with said JUVIELYN
PUNONGBAYAN against her will and consent, to her damage and
prejudice.
"That accused Buenaventura 'Wella' Concepcion without
having participated as principal or accessory assisted in the
commission of the offense by bringing said complainant child to
the rest house of accused Bayani 'Arthur' Alonte at Sto. Tomas,
Biñan, Laguna and after receiving the amount of P1,000.00 left her
alone with Bayani Alonte who subsequently raped her.
Contrary to Law." 1

The case was docketed Criminal Case No. 9619-B and assigned
by raffle to Branch 25 of the RTC of Biñan, Laguna, presided over by
Judge Pablo B. Francisco.
On 13 December 1996, Juvie-lyn Punongbayan, through her
counsel Attorney Remedios C. Balbin, and Assistant Chief State
Prosecutor ("ACSP") Leonardo Guiyab, Jr., filed with the Office of the
Court Administrator a Petition for a Change of Venue (docketed
Administrative Matter No. 97-1-12-RTC) to have the case transferred
and tried by any of the Regional Trial Courts in Metro Manila.
During the pendency of the petition for change of venue, or on 25
June 1997, Juvie-lyn Punongbayan, assisted by her parents and
counsel, executed an affidavit of desistance, quoted herein in full, as
follows:
AFFIDAVIT OF DESISTANCE
"I, JUVIE-LYN YAMBAO PUNONGBAYAN, 17 years of age, a
resident of No. 5 Uranus Street, Congressional Avenue Subdivision,
Quezon City, duly assisted by private legal counsel and my parents,
after having duly sworn in accordance with law, depose and say:
 "1. That I am the Complainant in the rape case filed against
Mayor Bayani 'Arthur' Alonte of Biñan, Laguna, with the RTC-
Branch 25 of Biñan, Laguna;
"2. That the case has been pending for some time, on
preliminary issues, specifically, (a) change of venue, filed with the
Supreme Court; (b) propriety of the appeal to the Court of Appeals,
and after its denial by said court, brought to the Office of the
President, on the veracity of the findings of the Five-Man
Investigating Panel of the State Prosecutor's Office, and the
Secretary of Justice, and (c) a hold-departure order filed with the
Biñan Court;
"3. That the legal process moves ever so slowly, and
meanwhile, I have already lost two (2) semesters of my college
residence. And when the actual trial is held after all the
preliminary issues are finally resolved, I anticipate a still indefinite
suspension of my schooling to attend the hearings;
"4. That during the entire period since I filed the case, my
family has lived a most abnormal life: my father and mother had to
give up their jobs; my younger brother, who is in fourth grade, had
to stop his schooling, like myself;
"5. That I do not blame anyone for the long, judicial process, I
simply wish to stop and live elsewhere with my family, where we
can start life anew, and live normally once again;
"6. That I pray that I be allowed to withdraw my complaint for
rape and the other charge for child abuse wherein the Five-Man
Investigating Panel of the Office of the State Prosecutor found a
prima facie case although the information has not been filed, and
that I will not at any time revive this, and related cases or file new
cases, whether criminal, civil, and or administrative, here or
anywhere in the Philippines;
"7. That I likewise realize that the execution of this Affidavit
will put to doubt my credibility as a witness-complainant;
"8. That this is my final decision reached without fear or
favor, premised on a corresponding commitment that there will be
no reprisals in whatever form, against members of the police force
or any other official of officer, my relatives and friends who
extended assistance to me in whatever way, in my search for
justice.
"WHEREOF, I affix my signature this 25 day of June, 1997, in
Quezon City.
"(Sgd) JUVIE-LYN Y. PUNONGBAYAN
Complainant
"Assisted by:
 (Sgd) ATTY. REMEDIOS C. BALBIN
Private Prosecutor
"In the presence of:
(Sgd) PABLO PUNONGBAYAN
Father
(Sgd) JULIE Y. PUNONGBAYAN
Mother
"SUBSCRIBED AND SWORN to before me this 25 day of June,
1997, in Quezon City.
"(Sgd) Illegible
Administering Officer" 2

On 28 June 1997, Atty. Ramon C. Casino, on behalf of petitioners,

moved to have the petition for change of venue dismissed on the
ground that it had become moot in view of complainant's affidavit of
desistance. On 22 August 1997, ACSP Guiyab filed his comment on the
motion to dismiss. Guiyab asserted that he was not aware of the
desistance of private complainant and opined that the desistance, in
any case, would not produce any legal effect since it was the public
prosecutor who had direction and control of the prosecution of the
criminal action. He prayed for the denial of the motion to dismiss.
On 02 September 1997, this Court issued a Resolution
(Administrative Matter No. 97-1-12-RTC), granting the petition for
change of venue. The Court said:
"These affidavits give specific names, dates, and methods
being used to abort, by coercion or corruption, the prosecution of
Criminal Case No. 9619-B. It is thus incorrect for oppositors Alonte
and Concepcion to contend that the fear of the petitioner, her
private counsel and her witnesses are too generalized if not
fabricated. Indeed, the probability that in desisting from pursuing
her complaint for rape, petitioner, a minor, may have succumbed to
some illicit influence and undue pressure. To prevent possible
miscarriage of justice is a good excuse to grant the petition to
transfer the venue of Criminal Case No. 9619-B from Biñan, Laguna
to the City of Manila.
"IN VIEW WHEREOF, the Petition for Change of Venue from
Biñan, Laguna to the City of Manila is granted. The Executive
Judge of RTC Manila is ordered to raffle Crim. Case No. 9619-B to
any of its branches. The judge to whom Crim. Case No. 9619-B shall
be raffled shall resolve the petitioner's Motion to Resume
Proceedings filed in Br. XXV of the RTC of Biñan, Laguna and
determine the voluntariness and validity of petitioner's desistance
in light of the opposition of the public prosecutor, Asst. Chief State
 Prosecutor Leonardo Guiyab. The branch clerk of court of Br. XXV
of the RTC of Biñan, Laguna is ordered to personally deliver to the
Executive Judge of Manila the complete records of Crim. Case No.
9619-B upon receipt of this Resolution." 3
On 17 September 1997, the case, now re-docketed Criminal Case
No. 97-159955 by the Clerk of Court of Manila, was assigned by raffle
to Branch 53, RTC Manila, with respondent Judge Maximo A.
Savellano, Jr., presiding.
On 07 October 1997, Juvie-lyn Punongbayan, through Attorney
Balbin, submitted to the Manila court a "compliance" where she
reiterated "her decision to abide by her Affidavit of Desistance."
In an Order, dated 09 October 1997, Judge Savellano found
probable cause for the issuance of warrants for the arrest of
petitioners Alonte and Concepcion "without prejudice to, and
independent of, this Court's separate determination as the trier of
facts, of the voluntariness and validity of the [private complainant's]
desistance in the light of the opposition of the public prosecutor, Asst.
Chief State Prosecutor Leonardo Guiyab."
On 02 November 1997, Alonte voluntarily surrendered himself to
Director Santiago Toledo of the National Bureau of Investigation
("NBI"), while Concepcion,. in his case, posted the recommended bail
of P150,000.00.
On 07 November 1997, petitioners were arraigned and both
pleaded "not guilty" to the charge. The parties manifested that they
were waiving pre-trial. The proceedings forthwith went on. Per Judge
Savellano, both parties agreed to proceed with the trial of the case on
the merits. 4 According to Alonte, however, Judge Savellano allowed
the prosecution to present evidence relative only to the question of
the voluntariness and validity of the affidavit of desistance. 5
It would appear that immediately following the arraignment, the
prosecution presented private complainant Juvie-lyn Punongbayan
followed by her parents. During this hearing, Punongbayan affirmed the
validity and voluntariness of her affidavit of desistance. She stated
that she had no intention of giving positive testimony in support of the
charges against Alonte and had no interest in further prosecuting the
action. Punongbayan confirmed: (i) That she was compelled to desist
because of the harassment she was experiencing from the media, (ii)
that no pressures nor influence were exerted upon her to sign the
affidavit of desistance, and (iii) that neither she nor her parents
received a single centavo from anybody to secure the affidavit of
desistance.
 Assistant State Prosecutor Marilyn Campomanes then presented,
in sequence: (i) Punongbayan's parents, who affirmed their signatures
on the affidavit of desistance and their consent to their daughter's
decision to desist from the case, and (ii) Assistant Provincial
Prosecutor Alberto Nofuente, who attested that the affidavit of
desistance was signed by Punongbayan and her parents in his
presence and that he was satisfied that the same was executed freely
and voluntarily. Finally, Campomanes manifested that in light of the
decision of private complainant and her parents not to pursue the
case, the State had no further evidence against the accused to prove
the guilt of the accused. She, then, moved for the "dismissal of the
case" against both Alonte and Concepcion.
Thereupon, respondent judge said that "the case was submitted
for decision." 6
On 10 November 1997, petitioner Alonte filed an "Urgent Motion to
Admit to Bail." Assistant State Prosecutor Campomanes, in a Comment
filed on the same date, stated that the State interposed "no objection
to the granting of bail and in fact Justice and Equity dictates that it
joins the accused in his prayer for the granting of bail."
Respondent judge did not act on the application for bail.
On 17 November 1997, Alonte filed anew an Urgent Plea to
Resolve the Motion for Bail. On even date, ASP Campomanes filed a
Manifestation deeming "it proper and in accord with justice and fair
play to Join the aforestated motion."
Again, the respondent judge did not act on the urgent motion.
The records would indicate that on the 25th November 1997, 1st
December 1997, 8th December 1997 and 10th December 1997,
petitioner Alonte filed a Second, Third, Fourth and Fifth Motion for
Early Resolution, respectively, in respect of his application for bail.
None of these motions were acted upon by Judge Savellano.
On 17 December 1997, Attorney Philip Sigfrid A. Fortun, the lead
counsel for petitioner Alonte received a notice from the RTC Manila
Branch 53, notifying him of the schedule of promulgation, on 18
December 1997, of the decision on the case. The counsel for accused
Concepcion denied having received any notice of the scheduled
promulgation.
On 18 December 1997, after the case was called, Atty. Sigrid
Fortun and Atty. Jose Flaminiano manifested that Alonte could not
attend the promulgation of the decision because he was suffering from
mild hypertension and was confined at the NBI clinic and that, upon
the other hand, petitioner Concepcion and his counsel would appear
not to have been notified of the proceedings. The promulgation,
nevertheless, of the decision proceeded in absentia; the reading
concluded:
"WHEREFORE, judgment is hereby rendered finding the two
(2) accused Mayor Bayani Alonte and Buenaventura 'Wella'
Concepcion guilty beyond reasonable doubt of the heinous crime of
RAPE, as defined and penalized under Article 335(2) in relation to
Article 27 of the Revised Penal Code, as amended by Republic Act
No. 7659, for which each one of the them is hereby sentenced to
suffer the indivisible penalty of RECLUSION PERPETUA or
imprisonment for twenty (20) years; and one (1) day to forty (40)
years.
"In view thereof, the bail bond put up by the accused
Buenaventura 'Wella' Concepcion for his provisional liberty is
hereby cancelled and rendered without any further force and
effect.
"SO ORDERED." 7

On the same day of 18th December 1997, petitioner Alonte filed a

motion for reconsideration. Without waiting for its resolution, Alonte
filed the instant "Ex Abundante Ad Cautelam" for certiorari,
Prohibition, Habeas Corpus, Bail, Recusation of respondent Judge, and
for Disciplinary Action against an RTC Judge." Petitioner Concepcion
later filed his own petition for certiorariand mandamus with the Court.
Alonte submits the following grounds in support of his petition
seeking to have the decision nullified and the case remanded for new
trial; thus:
"The respondent Judge committed grave abuse of discretion
amounting to lack or excess of jurisdiction when he rendered a
Decision in the case a quo (Annex A) without affording the
petitioner his Constitutional right to due process of law (Article III,
§1, Constitution).
"The respondent Judge committed grave abuse of discretion
amounting to lack or excess of jurisdiction when he rendered a
Decision in the case a quo in violation of the mandatory provisions
of the Rules on Criminal Procedure, specifically, in the conduct and
order of trial (Rule 119) prior to the promulgation of a judgment
(Rule 120; Annex A).
"The respondent Judge committed grave abuse of discretion
amounting to lack or excess of jurisdiction when, in total disregard
of the Revised Rules on Evidence and existing doctrinal
jurisprudence, he rendered a Decision in the case a quo (Annex A)
on the basis of two (2) affidavits (Punongbayan's and Balbin's)
which wereneither marked nor offered into evidence by the
prosecution, nor without giving the petitioner an opportunity to
 cross-examine the affiants thereof, again in violation of petitioner's
right to due process (Article III, §1, Constitution).
"The respondent Judge committed grave abuse of discretion
amounting to lack or excess of jurisdiction when he rendered a
Decision in the case a quo without conducting a trial on the facts
which would establish that complainant was raped by petitioner
(Rule 119, Article III, §1, Constitution), thereby setting a dangerous
precedent where heinous offenses can result in conviction without
trial (then with more reason that simpler offenses could end up
with the same result)." 8
On the other hand, Concepcion relies on the following grounds in
support of his own petition; thus:
"1. The decision of the respondent Judge rendered in the
course of resolving the prosecution's motion to dismiss the case is
a patent nullity for having been rendered without jurisdiction,
without the benefit of a trial and in total violation of the
petitioner's right to due process of law.
"2. There had been no valid promulgation of judgment at least
as far as petitioner is concerned.
"3. The decision had been rendered in gross violation of the
right of the accused to a fair trial by an impartial and neutral judge
whose actuations and outlook of the case had been motivated by a
sinister desire to ride on the crest of media hype that surrounded
this case and use this case as a tool for his ambition for promotion
to a higher court.
"4. The decision is patently contrary to law and the
jurisprudence in so far as it convicts the petitioner as a principal
even though he has been charged only as an accomplice in the
information." 9
The petitions deserve some merit; the Court will disregard, in
view of the case milieu, the prematurity of petitioners' invocation, i e.,
even before the trial court could resolve Alonte's motion for
reconsideration.
The Court must admit that it is puzzled by the somewhat strange
way the case has proceeded below. Per Judge Savellano, after the
waiver by the parties of the pre-trial stage, the trial of the case did
proceed on the merits but that —
"The two (2) accused did not present any countervailing
evidence during the trial. They did not take the witness stand to
refute or deny under oath the truth of the contents of the private
complainant's aforementioned affidavit which she expressly
affirmed and confirmed in Court, but, instead, thru their respective
lawyers, they rested and submitted the case for decision merely on
 the basis of the private complainant's so called 'desistance' which,
to them, was sufficient enough for their purposes. They left
everything to the so-called 'desistance' of the private
complainant." 10
According to petitioners, however, there was no such trial for
what was conducted on 07 November 1997, aside from the arraignment
of the accused, was merely a proceeding in conformity with the
resolution of this Court in Administrative Case No. 97-1-12-RTC to
determine the validity and voluntariness of the affidavit of desistance
executed by Punongbayan.
It does seem to the Court that there has been undue precipitancy
in the conduct of the proceedings. Perhaps the problem could have
well been avoided had not the basic procedures been, to the Court's
perception taken lightly. And in this shortcoming, looking at the
records of the case, the trial court certainly is not alone to blame.
Section 14, paragraphs (1) and (2), of Article III, of the
Constitution provides the fundamentals.
"(1) No person shall be held to answer for a criminal offense
without due process of law.
"(2) In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and shall enjoy the
right to be heard by himself and counsel, to be informed of the
nature and cause of the accusation against him, to have a speedy,
impartial, and public trial, to meet the witnesses face to face, and
to have compulsory process to secure the attendance of witnesses
and the production of evidence in his behalf. However, after
arraignment, trial may proceed notwithstanding the absence of the
accused provided that he has been duly notified and his failure to
appear is unjustifiable."
Jurisprudence 11 acknowledges that due process in criminal
proceedings, in particular, require (a) that the court or tribunal trying
the case is properly clothed with judicial power to hear and determine
the matter before it; (b) that jurisdiction is lawfully acquired by it over
the person of the accused; (c) that the accused is given an opportunity
to be heard; and (d) that judgment is rendered only upon lawful
hearing. 12
The above constitutional and jurisprudential postulates, by now
elementary and deeply imbedded in our own criminal justice system,
are mandatory and indispensable. The principles find universal
acceptance and are tersely expressed in the oft-quoted statement
that procedural due process cannot possibly be met without a "law
which hears before it condemns, which proceeds upon inquiry and
renders judgment only after trial." 13
 The order of trial in criminal cases is clearly spelled out
in Section 3, Rule 119, of the Rules of Court; viz:
"Sec. 3. Order of trial. — The trial shall proceed in the
following order:
"(a) The prosecution shall present evidence to prove the
charge and, in the proper case, the civil liability.
"(b) The accused may present evidence to prove his defense,
and damages, if any, arising from the issuance of any provisional
remedy in the case.
"(c) The parties may then respectively present rebutting
evidence only, unless the court, in furtherance of justice, permits
them to present additional evidence bearing upon the main issue.
"(d) Upon admission of the evidence, the case shall be
deemed submitted for decision unless the court directs the parties
to argue orally or to submit memoranda.
"(e) However, when the accused admits the act or omission
charged in the complaint or information but interposes a lawful
defense, the order of trial may be modified accordingly."
In Tabao vs. Espina, 14 the Court has underscored the need to
adhere strictly to the above rules. It reminds that —
". . . each step in the trial process serves a specific purpose.
In the trial of criminal cases, the constitutional presumption of
innocence in favor of an accused requires that an accused be
given sufficient opportunity to present his defense. So, with the
prosecution as to its evidence.
"Hence, any deviation from the regular course of trial should
always take into consideration the rights of all the parties to the
case, whether in the prosecution or defense. In the exercise of
their discretion, judges are sworn not only to uphold the law but
also to do what is fair and just. The judicial gavel should not be
wielded by one who has an unsound and distorted sense of justice
and fairness. 15
While Judge Savellano has claimed in his Comment that —
"Petitioners-accused were each represented during the
hearing on 07 November 1997 with their respective counsel of
choice. None of their counsel interposed an intention to cross-
examine rape victim Juvielyn Punongbayan, even after she
attested, in answer to respondent judge's clarificatory questions,
the voluntariness and truth of her two affidavits — one detailing
the rape and the other detailing the attempts to buy her
desistance; the opportunity was missed/not used, hence waived.
The rule of case law is that the right to confront and cross-
 examine a witness 'is a personal one and may be waived."'
(emphasis supplied) —
It should be pointed out, however, that the existence of the waiver
must be positively demonstrated. The standard of waiver requires that
it "not only must be voluntary, but must be knowing, intelligent, and
done with sufficient awareness of the relevant circumstances and
likely consequences." 16 Mere silence of the holder of the right should
not be so construed as a waiver of right, and the courts must indulge
every reasonable presumption against waiver. 17 The Solicitor General
has aptly discerned a few of the deviations from what otherwise
should have been the regular course of trial: (1) Petitioners have not
been directed to present evidence to prove their defenses nor have
dates therefor been scheduled for the purpose; 18 (2) the parties have
not been given the opportunity to present rebutting evidence nor have
dates been set by respondent Judge for the purpose; 19 and (3)
petitioners have not admitted the act charged in the Information so as
to justify any modification in the order of trial. 20 There can be no short-
cut to the legal process, and there can be no excuse for not affording
an accused his full day in court. Due process, rightly occupying the
first and foremost place of honor in our Bill of Rights, is an enshrined
and invaluable right that cannot be denied even to the most
undeserving.
This case, in fine, must be remanded for further proceedings.
And, since the case would have to be sent back to the court a quo,
this ponencia has carefully avoided making any statement or
reference that might be misconstrued as prejudgment or as pre-
empting the trial court in the proper disposition of the case. The Court
likewise deems it appropriate that all related proceedings therein,
including the petition for bail, should be subject to the proper
disposition of the trial court.LLpr

Nevertheless, it is needful to stress a few observations on the

affidavit of desistance executed by the complainant.

Firstly, the affidavit of desistance of Juvie-Lyn Punongbayan,

hereinbefore quoted, does not contain any statement that disavows
the veracity of her complaint against petitioners but merely seeks to
"be allowed to withdraw" her complaint and to discontinue with the
case for varied other reasons. On this subject, the case of People
vs. Junio, 21 should be instructive. The Court has there explained:
"The appellant's submission that the execution of an Affidavit
of Desistance by complainant who was assisted by her mother
supported the 'inherent incredibility of prosecution's evidence' is
specious. We have said in so many cases that retractions are
generally unreliable and are looked upon with considerable
 disfavor by the courts. The unreliable character of this document is
shown by the fact that it is quite incredible that after going
through the process of having accused-appellant arrested by the
police, positively identifying him as the person who raped her,
enduring the humiliation of a physical examination of her private
parts, and then repeating her accusations in open court by
recounting her anguish, Maryjane would suddenly turn around and
declare that '[a]fter a careful deliberation over the case, (she)
find(s) that the same does not merit or warrant criminal
prosecution.'
"Thus, we have declared that at most the retraction is an
afterthought which should not be given probative value. It would
be a dangerous rule to reject the testimony taken before the court
of justice simply because the witness who has given it later on
changed his mind for one reason or another. Such a rule will make
a solemn trial a mockery and place the investigation at the mercy
of unscrupulous witnesses. Because affidavits of retraction can
easily be secured from poor and ignorant witnesses, usually for
monetary consideration, the Court has invariably regarded such
affidavits as exceedingly unreliable. [Flores vs. People, 211 SCRA
622, citing De Guzman vs. Intermediate Appellate Court, 184 SCRA
128; People vs. Galicia, 123 SCRA 550.] 22
The Junio rule is no different from ordinary criminal cases. For
instance, in People vs. Ballabare, 23 a murder case, the Court has
ruled:
"The contention has no merit. To begin with, the Affidavit
executed by eyewitness Tessie Asenita is not a recantation. To
recant a prior statement is to renounce and withdraw it formally
and publicly. [36 WORDS AND PHRASES 683, citing Pradlik vs.
State, 41-A 2nd, 906, 907.] In her affidavit, Tessie Asenita did not
really recant what she had said during the trial. She only said she
wanted to withdraw her testimony because her father, Leonardo
Tacadao, Sr., was no longer interested in prosecuting the case
against accused-appellant. Thus, her affidavit stated:
"3. That inasmuch as my father, Leonardo Tacadao, Sr.,
the complainant therein, was no longer interested to
prosecute the case as manifested in the Sworn Affidavit of
Desistance before the Provincial Prosecutor, I do hereby
WITHDRAW and/or REVOKE my testimony of record to confirm
(sic) with my father's desire;
"It is absurd to disregard a testimony that has undergone trial
and scrutiny by the court and the parties simply because an
affidavit withdrawing the testimony is subsequently presented by
the defense. In the first place, any recantation must be tested in a
public trial with sufficient opportunity given to the party adversely
affected by it to cross-examine the recanting witness. In this case,
 Tessie Asenita was not recalled to the witness stand to testify on
her affidavit. Her affidavit is thus hearsay. It was her husband,
Roque Asenita, who was presented and the matters he testified to
did not even bear on the substance of Tessie's affidavit. He
testified that accused-appellant was not involved in the
perpetration of the crime.
"In the second place, to accept the new evidence uncritically
would be to make a solemn trial a mockery and place the
investigation at the mercy of unscrupulous witnesses. [De Guzman
vs. Intermediate Appellate Court, 184 SCRA 128, 134, citing People
vs. Morales, 113 SCRA 683.] For even assuming that Tessie Asenita
had made a retraction, this circumstance alone does not require
the court to disregard her original testimony. A retraction does not
necessarily negate an earlier declaration. [People vs. Davatos, 229
SCRA 647.] For this reason, courts look with disfavor upon
retractions because they can easily be obtained from witnesses
usually through intimidation or for monetary considerations.
[People vs. Clamor, 198 SCRA 642.] Hence, when confronted with a
situation where a witness recants his testimony, courts must not
automatically exclude the original testimony solely on the basis of
the recantation. They should determine which testimony should be
given credence through a comparison of the original testimony and
the new testimony, applying the general rules of evidence. [Reano
vs. Court of Appeals, 165 SCRA 525.] In this case we think the trial
court correctly ruled." 24
It may not be amiss to state that courts have the inherent power
to compel the attendance of any person to testify in a case pending
before it, and a party is not precluded from invoking that authority. 25
Secondly, an affidavit of desistance by itself, even when
construed as a pardon in the so-called "private crimes," is not a
ground for the dismissal of the criminal case once the action has been
instituted. The affidavit, nevertheless, may, as so earlier intimated,
possibly constitute evidence whose weight or probative value, like any
other piece of evidence, would be up to the court for proper
evaluation. The decision in Junio went on to hold —
"While '[t]he offenses of seduction, abduction, rape or acts of
lasciviousness, shall not be prosecuted except upon a complaint
filed by the offended party or her parents, grandparents, or
guardian, nor in any case, if the offender has been expressly
pardoned by the above named persons, as the case may be,' [Third
par. of Art. 344, The Revised Penal Code,] the pardon to justify the
dismissal of the complaint should have been made prior to the
institution of the criminal action. [People vs. Entes, 103 SCRA 162,
cited by People vs. Soliao, 194 SCRA 250, which in turn is cited in
People vs. Villorente, 210 SCRA 647.] Here, the motion to dismiss to
 which the affidavit of desistance is attached was filed after the
institution of the criminal case. And, affiant did not appear to be
serious in 'signifying (her) intention to refrain from testifying' since
she still completed her testimony notwithstanding her earlier
affidavit of desistance. More, the affidavit is suspect considering
that while it was dated 'April 1992,' it was only submitted
sometime in August 1992, four (4) months after the Information
was filed before the court a quo on 6 April 1992, perhaps dated as
such to coincide with the actual filing of the case." 26
In People vs. Miranda, 27 applying the pertinent provisions
of Article 344 of the Revised Penal Code which, in full, states -
"Art. 344. Prosecution of the crimes of adultery, concubinage,
seduction, abduction, rape, and acts of lasciviousness. The crimes
of adultery and concubinage shall not be prosecuted except upon a
complaint filed by the offended spouse.
"The offended party cannot institute criminal prosecution
without including both the guilty parties, if they are both alive, nor,
in any case, if he shall have consented or pardoned the offenders.
"The offenses of seduction, abduction, rape or acts of
lasciviousness, shall not be prosecuted except upon a complaint
filed by the offended party or her parents, grandparents, or
guardian, nor, in any case, if the offender has been expressly
pardoned by the above named persons, as the case may be.
"In cases of seduction, abduction, acts of lasciviousness and
rape, the marriage of the offender with the offended party shall
extinguish the criminal action or remit the penalty already imposed
upon him. The provisions of this paragraph shall also be applicable
to the co-principals, accomplices and accessories after the fact of
the above-mentioned crimes."
the Court said:
"Paragraph 3 of the legal provision above quoted prohibits a
prosecution for seduction, abduction, rape, or acts of
lasciviousness, except upon a complaint made by the offended
party or her parents, grandparents, or guardian, nor, in any case, if
the offender has been expressly pardoned by the above-named
persons, as the case may be. It does not prohibit the continuance
of a prosecution in the offended party pardons the offender after
the cause has been instituted, nor does it order the dismissal of
said cause. The only act that according to article 344 extinguishes
the penal action and the penalty that may have been imposed is
the marriage between the offender and the offended party." 28
In People vs. Infante, 29 decided just a little over a month
before Miranda, the Court similarly held:
 "In this court, after the case had been submitted, a motion to
dismiss was filed on behalf of the appellant predicated on an
affidavit executed by Manuel Artigas, Jr., in which he pardoned his
guilty spouse for her infidelity. But this attempted pardon cannot
prosper for two reasons. The second paragraph of article 344 of
theRevised Penal Code which is in question reads: 'The offended
party cannot institute criminal prosecution without including both
the guilty parties, if they are both alive, nor, in any case, if he shall
have consented or pardoned the offenders.' This provision means
that the pardon afforded the offenders must come before the
institution of the criminal prosecution, and means, further, that
both the offenders must be pardoned by the offended party. To
elucidate further, article 435 of the old Penal Code provided: 'The
husband may at any time remit the penalty imposed upon his wife.
In such case the penalty imposed upon the wife's paramour shall
also be deemed to be remitted.' These provisions of the old Penal
Code became inoperative after the passage of Act No. 1773,
section 2, which had the effect of repealing the same. The Revised
Penal Code thereafter expressly repealed the old Penal Code, and
in so doing did not have the effect of reviving any of its provisions
which were not in force. But with the incorporation of the second
paragraph of article 344, the pardon given by the offended party
again constitutes a bar to the prosecution for adultery. Once more,
however, it must be emphasized that this pardon must come before
the institution of the criminal prosecution and must be for both
offenders to be effective — circumstances which do not concur in
this case." 30
The decisions speak well for themselves, and the Court need not
say more than what it has heretofore already held.
Relative to the prayer for the disqualification of Judge Savellano
from further hearing the case, the Court is convinced that Judge
Savellano should, given the circumstances, be best excused from the
case. Possible animosity between the personalities here involved may
not all be that unlikely. The pronouncement of this Court in the old
case of Luque vs. Kayanan 31 could again be said: All suitors are
entitled to nothing short of the cold neutrality of an independent,
wholly-free disinterested and unbiased tribunal. Second only to the
duty of rendering a just decision is the duty of doing it in a manner
that will not arouse any suspicion as to the fairness and integrity of
the Judge. 32 It is not enough that a court is impartial, it must also be
perceived as impartial.
The Court cannot end this ponencia without a simple reminder on
the use of proper language before the courts. While the lawyer in
promoting the cause of his client or defending his rights might do so
with fervor, simple courtesy demands that it be done within the
 bounds of propriety and decency. The use of intemperate language and
unkind ascriptions hardly can be justified nor can have a place in the
dignity of judicial forum. Civility among members of the legal
profession is a treasured tradition that must at no time be lost to it.
Finally, it may be opportune to say, once again, that prosecutors
are expected not merely to discharge their duties with the highest
degree of excellence, professionalism and skill but also to act each
time with utmost devotion and dedication to duty. 33 The Court is
hopeful that the zeal which has been exhibited many times in the past,
although regrettably a disappointment on few occasions, will not be
wanting in the proceedings yet to follow.
WHEREFORE, conformably with all the foregoing, the Court
hereby RULES that —
(a) The submission of the "Affidavit of Desistance," executed
by Juvie-Lyn Y. Punongbayan on 25 June 1997, having
been filed AFTER the institution of Criminal Case No. 97-
159935, DOES NOT WARRANT THE DISMISSAL of said
criminal case;
(b) For FAILURE OF DUE PROCESS, the assailed judgment,
dated 12 December 1997, convicting petitioners is
declared NULL AND VOID and thereby SET ASIDE;
accordingly, the case is REMANDED to the trial court for
further proceedings; and
(c) Judge Maximo A. Savellano, Jr., presiding Judge of Branch
53 of the Regional Trial Court of Manila, is ENJOINED
from further hearing Criminal Case No. 97-159935;
instead, the case shall immediately be scheduled for
raffle among the other branches of that court for proper
disposition .
No special pronouncement on costs.
SO ORDERED.
Melo, Kapunan, Martinez, Quisumbing and Purisima, JJ ., concur.
Narvasa, C .J ., took no part: related to one of counsel.

Separate Opinions

PUNO, J ., concurring and dissenting:

The facts are critical and need to be focused. Petitioners were

charged with rape in Criminal Case No. 15993 which was raffled to Br.
25 of the RTC of Biñan, Laguna. The charge is principally based on the
following affidavit dated October 31, 1996 of Ms. Juvie-Lyn
Punongbayan, a 16-year old minor, viz.:
REPLY-AFFIDAVIT
(TUGON SA MGA SALAYSAY NILA MAYOR BAYANI ALONTE, WELLA
CONCEPCION, RICARDO LACAYAN at JAIME MENDOZA)
Ako si JUVIE-LYN Y. PUNONGBAYAN, Filipino, walang asawa,
16 years old, at kasalukuyang nasa pangangalaga ng Department
of Social Welfare and Development, matapos makapanumpa ayon
sa batas, ay nagsasaad:
1. Wala pong katotohanan ang lahat nakasaad sa mga
salaysay ni Mayor Bayani Alonte at Buenaventura "Wella"
Concepcion, ng kanilang mga testigo na sila Ricardo (Ading)
Lacayan y Aguilar at Jaime Bagtas Mendoza.
2. Ang totoo po ay inabuso ako ni Mayor nung September 12,
1996, katulad nga ng naihayag ko na sa aking sinumpaang
salaysay. Ayon sa driver ng tricycle na nasakyan ko pagkatapos ng
insidente, hindi lang po ako, kundi marami pa pong babae ang
inabuso ni Mayor. Sabi pa nga ng driver ay naaawa siya sa akin, at
lumaban daw ako. Tinawagan ko na rin po ang lahat ng mga babae
na naging biktima ni Mayor; wag silang matakot, lumabas at ilahad
ang pangaabuso ni Mayor.
Ang detalya nung panggagahasa
ni Alonte at ang partisipasyon
ni Wella Concepcion
3. Nakalahad po sa sumusunod na talata ang detalya ng
pang-aabuso sa akin ni Mayor. Pinakikita rin dito kung paano siya
nakipagsabwatan kay Wella Concepcion. Sa pamamagitan nito ay
mapapabulaanan na rin ang mga nakasaad sa salaysay nila at ng
mga testigo nila.
4. Nakilala ko si Wella Concepcion, dance instructor, nung
bandang last week ng August 1996. Noon ay naghahanda ako para
sa "Miss Education" beauty contest sa Perpetual Help College of
Laguna. Doon ako nag-aaral. First year college ako, at education
ang kursong pinili ko. Ang nasabing contest ay ginanap nung Sept.
20, 1996. Kapag nagkikita kami ni Wella para sa ensayo,
nagkukuwentuhan din kami, at nabanggit niya na may kaibigan
siyang bakla na nagdadala ng babae kay Mayor Alonte . Waway daw
ang pangalan ng bakla. Hindi ko pa kilala si Waway noon.
5. Nung Sept. 7, niyaya ako ni Wella na sumali sa dance
contest sa "Sang Linggo NAPO SILA" sa Channel 2, na itatanghal
sa Sept. 11, 1996. Wala na daw po akong aalalahanin. Siya daw ang
bahala sa costume at transportation. Pumayag ang nanay ko, dahil
wala na kaming gagastusin. Hindi ko tinanong kay Wella kung saan
galing ang costume. Akala ko may ipapagamit lang siya sa akin.
6. Nung Sept. 8, pinakilala ni Wella si Waway sa akin. Si
Waway ang nagturo sa amin ng sayaw para sa TV contest. Mula
nung araw na yon hanggang Sept. 10 ay nagsanay kami sa bahay
ng kapatid ni Waway sa St. Francis Subdivision, Biñan, Laguna.
Tatlo kami sa dance group: ako at ang dalawang lalaki na
ipinakilala sa akin ni Waway: si Melchor at Darius.
7. Nagpunta kami sa studio sa Delta nung Sept. 11. Bago kami
magsayaw, habang inaayos ni Wella yung damit ko, sinabi niya
na dapat manalo kami dahil si Mayor Alonte daw ang nag-sponsor
ng costume namin. Noon ko lang ito nalaman. Hindi kami nanalo sa
contest, pero nagkaroon pa rin kami ng premyong P1,500.00 na
pinaghatian namin.
8. Pagkatapos ng contest, at nung nakapagpalit na ako ng
damit, binabalik ko kay Wella ang costume ko. Sabi niya iuwi ko
daw ito dahil gagamitin ko ito sa Miss Education contest, sa
presentation ng mga candidates. Mula sa studio, nagpunta kaming
lahat sa isang kainan sa tapat ng Delta at, pagkatapos namin
kumain, humiwalay yung ibang kasama namin.
9. Dinala ako ni Wella sa isang department store at binili niya
ako ng sandals. Inikot niya ako sa lugar na yon at binili niya ako ng
pagkain. Tapos ay sumakay kami ng bus pauwi sa Laguna. Nung
nasa bus kami, niyaya ako ni Wella na magpunta sa bahay ni Mayor
para magpasalamat ng personal para sa costume namin . Pumayag
ako at sabi ko kay Wella na sunduin niya ako sa bahay ng 10:00
a.m. sa susunod na araw, Sept. 12. Nakarating ako sa bahay ng
5:00 p.m. ng araw na yon, Sept. 11.
10. Nung Sept. 12, hinintay ko si Wella ng 10:00 a.m. Nung
hindi siya dumating umalis kami ng Tita ko dahil sinamahan ko siya
sa health center. Sumunod pala si Wella doon, pero hindi kami
nagkita kasi saglit lang kami doon. Bumalik siya sa bahay, at doon
na kami nagkita. Tapos ay umalis kami ni Wella papunta kay Mayor.
Tumawid kami ng kalye, at pumara ako ng tricycle. Pero kahit
marami na akong pinara, ayaw ni Wella na sumakay doon. Maya-
maya, may tricycle na dumating na hindi naman pinara ni Wella.
Basta huminto na lang sa harap namin. Doon kami sumakay ni
Wella. Si Wella ang nagturo sa driver kung saan kami pupunta. Nag-
uusap sila ng driver habang papunta kami kay Mayor.
11. Bumaba kami sa tapat ng bahay na bukas ang gate. May
swimming pool sa loob, alam na alam ni Wella and pasikot-sikot
nang bahay tuloy-tuloy siya sa loob at sumunod naman ako. Wala
kaming taong nakita, pero bukas pati yung pintuan ng bahay.
Dinala ako ni Wella sa sala. Napakaganda ng loob ng bahay.
Mayroong wallpaper na may design na leaves and flowers; may
carpet sa sahig. May mahabang hagdan patungo sa dalawang
pintuan.
12. Tinanong ko kay Wella kung nasaan si Mayor. Sabi niya ay
nasa munisipyo daw; darating na daw maya-maya. Pagkaraan ng
mga 15 minutes, dumating si Mayor na nakasakay sa green na
kotse. Lumabas siya sa kaliwang pintuan sa harap ng kotse. Wala
siyang kasama.
13. Pumasok si Mayor sa loob ng bahay. Naghubad siya ng
sapatos. Sabi ni Wella: "Mayor, si Juvie; Juvie si Mayor."
14. Umupo si Mayor sa tabi ko. Kinamayan niya ako at sinabi
niya: "Hi, I'm Arthur" sabay hinalikan niya sa ako sa lips . Hindi ako
naka-react dahil nagulat at kinabahan ako.
15. Nagmamadaling nagpaalam si Wella. Kinuha ni Mayor ang
wallet sa bulsa sa likod ng kanyang pantalon. Dumukot siya ng
P1,000 na buo. Inabot niya ito kay Wella. Patayo na ako pero
hinawakan ni Mayor ang braso ko. Wag daw akong sasama kay
Wella. Sinabi ko kay Wella na wag niya akong iiwanan, pero parang
wala siyang narinig. Basta tuloy-tuloy siyang umalis.
16. Nung kami na lang ni Mayor ang natira, pinainom niya ako
ng mineral water. Uminom ako dahil nauuhaw ako. Nanlabo ang
paningin ko at nanghina ako.
17. Nawalan ako ng malay. Ang sumunod ko na lang na
natatandaan ay nandoon na ako sa kwarto. Wala akong damit.
Nakadagan si Mayor sa akin. May malaking salamin sa pader. Doon
ko nakita na walang kadamit-damit si Mayor.
18. Hawak ako ni Mayor sa magkabilang braso. Pinipisil niya
ito kaya nagkaroon ako ng pasa sa kaliwang braso (at ito ay
nawala lang pagkatapos ng tatlong araw).
19. Naramdaman ko na pilit na pinasok ni Mayor ang ari niya
sa aking ari. Nasaktan ako. Nagmakaawa ako. Umiiyak ako nung
sinabi ko sa kanya na tigilan niya ako; nasasaktan ako; may anak
rin siyang babae. Sabi niya wag daw akong maingay at i-embrace
ko na lang daw siya. Lalo akong umiyak dahit nandidiri ako sa
kanya, at sa ginagawa niya sa akin. Naghalo ang galit, pandidiri at
takot. Wala akong magawa kundi magmakaawa. Hindi ko siya
maitulak dahil nanghihina ako, nakadagan siya sa akin, mataba
siya, at hawak-hawak niya ang braso ko. Pero kahit
nagmamakaawa ako, tinuloy pa rin niya at pinasok niya ulit ang ari
niya sa aking ari.
20. Maya-maya ay tumigil siya. Tumayo siya at sabi niya: "ang
panty mo, nasa tabi mo." Kinuha ko ang panty ko, tumayo ako at
sinuot ko ito. Hinanap ko ang damit ko, at nakita ko ang walking
shorts, bra at t-shirt ko sa sahig. Pinulot ko ito at sinuot ko.
 Habang sinusuot ko, umiiyak pa rin ako. Pagkatapos kong
magbihis, umupo ako sa mahabang upuan sa may gilid ng kama.
21. Samantala, pagkatapos sabihin ni Mayor na nasa tabi ko
ang panty ko, nagpunta siya sa banyo na transparent ang pinto.
Wala siyang suot pagpunta niya doon. Paglabas niya, nakasuot na
siya ng checkered brief na kulay black and white. Pumunta siya sa
kabilang gilid ng kama. Kinuha niya ang damit niya na nakahanger
sa pader. Sinuot niya ito. Lumabas siya ng kwarto. Hindi nagtagal
ay pumasok siya ulit at sinabi niya na nandiyan na daw ang sundo
ko.
22. Tumayo ako. Sinabi ko na aalis na ako. Nung papunta na
ako sa pintuan, lumapit si Mayor sa akin. May hawak-hawak siyang
dalawang pirasong P1,000. Tiniklop niya ito; binaba niya yung
neckline ng t-shirt ko, at pinasok niya ang pera sa aking bra.
Nagalit ako. Kinuha ko ang pera at tinapon ko ito sa kanya. Sabi ko
hindi ako bayarang babae. Nagalit siya at pinagbantaan ako. Sabi
niya: "Pag nagsalita ka, alam mo na kung ano ang mangyayari sa
iyo." Tiningnan ko siya, at umalis ako pababa.
23. Mayroon tricycle na nakaabang sa labas. Sumunod si
Mayor. Lumapit siya sa driver at binigyan niya ito ng P100. Tapos ay
umalis na kami.
24. Umiiyak pa rin ako nung nasa tricycle. Sabi ko sa driver
na ginahasa ako ni Mayor. Sabi niya masuwerte daw ako at maaga
akong pinauwi dahil yung mga ibang babae daw na dinadala kay
Mayor ay pinauwi ng madaling-araw o hating-gabi. Minsan, dalawa
o tatlo pa nga daw ang dinadala doon, at yung iba ay naka-uniform
pa. Naaawa daw siya sa akin, kaya magsumbong daw ako.
Nakokonsensiya daw siya dahil isa siya sa dalawang tricycle driver
na naghahatid ng mga babae doon. Sabi pa nga niya, babae din
daw ang ina niya, kaya din siya nakokonsensiya. Dinagdag pa niya
na kung may kasiyahan kina Mayor, isang van ng mga babae ang
nadoon. Pagdating namin sa bahay ng Lola ko, sabi niya bago siya
umalis: "Lumaban ka."
On December 13, 1996, the private complainant thru her
counsel, Atty. Remedios C. Balbin and Asst. Chief State Prosecutor
Leonardo Guiab, Jr., of the Department of Justice petitioned this Court
for a change of venue. They cited as ground the great danger to the
lives of both the private complainant, the immediate members of her
family, and their witnesses as they openly defy the principal accused,
Mayor Alonte who is acknowledged as a powerful political figure and
almost an institution in Biñan, Laguna . . ."
On March 31, 1997, the private complainant, thru the then
Secretary of Justice, the Honorable Teofisto Guingona and Chief State
Prosecutor Jovencio Zuno filed a Manifestation and Motion for the
early resolution of the petition for change of venue. They submitted
the affidavits of the private complainant, her counsel Atty. Remedios
C. Balbin, Dolores Mercado-Yambao, Bienvenido Salandanan and
Evelyn Celso to prove their allegation that they " are exposed to
kidnapping, harassment, veiled threats and tempting offers of bribe
money — all intended to extract an 'affidavit of desistance' from the
private complainant." Worth bright lining are the two (2) affidavits
of Atty. Remedios C. Balbin, counsel for the private
complainant, relating the fantastic amount of P10M bribe money
allegedly offered to her. The first affidavit dated February 24, 1997
states:
I. Remedios C. Balbin, of legal age, Filipino, married, with
residence at #5 Uranus Street, Congressional Avenue Subdivision,
Quezon City, after having duly sworn in accordance with law,
depose and say:
1. That I am the Private Prosecutor in Criminal Case No. 96-
19-B for rape, filed with the Biñan RTC, Branch 25, entitled 'People
of the Philippines vs. Bayani Arthur Alonte, et al.;
2. That as Private Prosecutor, it is my avowed duty to be
faithful to the interests of my client, Ms. Juvie-lyn Punongbayan;
3. That on several occasions, I was visited at my Office at the
Quezon City Hall Compound, by a lawyer who introduced himself as
Atty. Leo C. Romero, representing the Accused Mayor Bayani Arthur
Alonte;
4. That my calendar at the People's Bureau, Quezon City Hall,
shows that he came to see me about eight (8) times, but we talked
only about three (3) timesbecause I was always busy attending to
the problems of Quezon City's urban poor and the landowners of
private properties illegally occupied by them;
5. That in two (2) occasions, Atty. Romero conveyed to me
the message of Mayor Alonte, namely, to drop the rape case
against him, and that he would give a consideration of Ten Million
Pesos (P10 Million) to be apportioned as follows:
Five Million Pesos (P5M) — for the Private Complainant
Three Million Pesos (P3M) — for me as Private Prosecutor
Two Million Pesos (P2M) — for him as the mediator
6. That I explained to Atty. Romero that money does not
matter at all to the Complainant and her family even if they have
very modest means; that they want justice, which means a
conviction for the charge of rape;
7. That I also explained to Atty. Romero that the money he
was offering me was of no consequence to me because I had
access to the resources of my two (2) daughters, both of whom are
in the medical field abroad, and of Mr. Filomeno Balbin, Labor
Attache then assigned in Riyadh;
8. That I told him that I cannot be tempted with his offer
because spiritual consideration are more important to me than the
material. Also, that I usually handle cases pro bono (at abunado
pa) where the litigant is in dire need of legal assistance but cannot
afford to pay for the lawyer's fees, as in Juvie-lyn's case;
9. That I gave Atty. Romero a copy of the decision of the
Supreme Court promulgated December 10, 1996, entitled "People
of the Philippines vs. Robert Cloud" (GR No. 119359; Crim. Case No.
Q-90-12660) for parricide involving the death of a 2 1/2 year old boy.
I wrote on page one of the xerox copy of the decision: 'To Atty. Leo
Romero — so you will understand,' and to which I affixed my
signature.
10. That I told him explicitly : 'we cannot simplify the entire
proceedings. You advise Mayor Alonte to surrender (one mitigating
circumstance), plead guilty (another mitigating circumstance) , get
a conviction and suffer the corresponding penalty . Otherwise, we
have nothing to talk about.'
11. That I emphasized that his suggestion for Mayor Alonte to
plead guilty to 'act of lasciviousness' merely was ridiculous;
12. That when the Complainant's Affidavit on the offer of Ms.
Emily Vasquez for a valuable consideration in exchange for an
affidavit of desistance in the rape was exposed by media, Atty.
Romero came to see me and thanked me for not exposing him in
similar fashion. I assured him that he will not be an exception and
that I was just too busy then to execute an affidavit on the matter,
as I do now;
13. That I have not received other similar offers of valuable
material consideration from any other person, whether private
party or government official. However, I have been separately
advised by several concerned persons that I was placing my
personal safety at great risk. The victim's family will have great
difficulty in finding another lawyer to 'adopt' them in the way I did,
which gives them strength to pursue their case with confidence
and the accused Mayor is aware that I am the obstacle to an out-
of-court settlement of the case. Also, that I had my hands full, as it
is, as the Head of the QC People's Bureau, Housing Development
Center, and Special Task Force on Squatting and Resettlement, and
the numerous cases filed by me or against me, connected with my
performance of official duties, and I should not add more legal
problems despite my authority to engage in private law practice.
14. That this affidavit is executed in order to put on record
the attempt to influence me directly, in exchange for valuable
 consideration to drop the rape charge against Mayor Bayani Arthur
Alonte.
February 24, 1997, City of Manila.
SGD. REMEDIOS C. BALBIN
REMEDIOS C. BALBIN
SUBSCRIBED AND SWORN to before me this 26th day of
March, 1997, Metro Manila.
Community Tax Certificate - 5208733
Date Issue 2-10-97
Quezon City
NOTARY PUBLIC

SGD. JUANITO L. GARCIA

ATTY. JUANITO L. GARCIA
NOTARY PUBLIC
UNTIL Dec. 31, 1997
PTR No. 63-T-033457
ISSUED AT MLA. ON 1-2-97
TAN-161-570-81
Doc. No. 950;
Page No. 170;
Series of 1997."
In her second Affidavit dated March 26, 1997, Atty. Balbin declared in
no uncertain language that the bribe offer for private complainant to
make a desistance was increased from P10,000,000.00 to
P20,000,000.00, viz:
"REPUBLIC OF THE PHILIPPINES )
CITY OF MANILA ) s.s.
"AFFIDAVIT
"I, REMEDIOS C. BALBIN, of legal age, Filipino, married, and
with postal address at No. 5 Uranus Street, Congressional Avenue
Subdivision, Quezon City, after having duly sworn in accordance
with law, depose and say:
"1. That I am the Private Prosecutor in the rape case filed by
the minor Juvie-Lyn Punongbayan against Mayor Bayani Arthur
Alonte of Biñan, Laguna;
"2. That earlier, I reported to Secretary Teofisto Guingona,
State Prosecutor Jovencio R. Zuno, Asst. Chief State Prosecutor
Leonardo Guiyab, Jr., and Director Jude Romano of the Witness
Protection Program, the instances of offers of substantial amounts
amounting to several millions, to my client, to her relatives,
including her maternal grandmother, and to myself;
"3. That despite the published declaration by the Department
of Justice of its determination to prosecute those who offered the
bribes, new emissaries of Mayor Alonte persist in making offers, as
follows:
"a. On Thursday, March 6, 1997, at about 3:15 o'clock in
the afternoon, Atty. Dionisio S. Daga came to see me at my
office at the People's Bureau, Office of the Mayor, of
Squatting case which I filed against his clients;
"b. That after a brief exchange on the status of the
case, he confided to me his real purpose; cdrep

"c. That he started off by saying that he was the legal

counsel of the gambling lords of Malabon for which he gets a
monthly retainer of fifteen thousand pesos (P15,000.00),
exclusive of transportation expenses, etc.;
"d. The he also stated that the network of gambling
lords throughout the country is quite strong and unified;
"e. That I then asked him: 'What do you mean — is
Alonte into gambling too? that he is part of the network you
speak of?'
"f. That Atty. Daga did not reply but instead said: 'they
are prepared to double the offer made to you by Atty. Romero
which was published in the newspapers' at P10 Million;
"g. That I told him that all the money in the world will
not make me change my position against my client's
executing a desistance, and that only Alonte's voluntary
surrender, plea of guilty in rape, conviction and the
imposition of the corresponding penalty will satisfy the ends
of justice;
"h. That I told him that my client's case is not isolated,
there being five (5) other minors similarly placed; and Alonte
should be stopped from doing more harm;
"i. That Atty. Daga then told me in Pilipino 'if you do not
accede to a desistance, then, they will be forced to . . .'.
"j. That because he did not complete his sentence, I
asked him directly: 'What do you mean? What do you intend to
do? And he replied: Go on with the case; Buy the Judge.'
"k. That unbelieving, I reacted, saying; 'but they have
already done so, Judge Francisco at Biñan suddenly changed
his attitude towards the Prosecution. Perhaps, you are
referring to the next Judge when the petition for change of
venue is finally granted?'
 "l. That Atty. Daga did not reply, and he reiterated that
his principals, referring to them again as 'gambling lords,'
want a desistance, after which he excused himself and left.
"4. That I execute this Affidavit to attest to the truth of the
incident with Atty. Dionisio S. Daga which occurred in the
afternoon of March 6, 1997, at my Office, stressing herein my
surprise over his daring in making yet another monetary offer to
me in exchange for my client's desistance, and my feeling of fear
for the first time since I started 'handling' this case against Alonte;
"5. That despite what I perceived as veiled threats of Atty.
Daga, I will seek justice in behalf of Juvie-Lyn Punongbayan, with
the indispensable initiatives, participation and support of the
Department of Justice under Secretary Teofisto Guingona.
"FURTHER AFFIANT SAYETH NAUGHT.
SGD. REMEDIOS C. BALBIN
ATTY. REMEDIOS C. BALBIN
Affiant
"REPUBLIC OF THE PHILIPPINES )
CITY OF MANILA ) s.s.
SUBSCRIBED AND SWORN TO BEFORE ME this 26th day of
March, 1997.
Community Tax Certificate — 5208733
Date Issued 2-10-97
Quezon City
NOTARY PUBLIC

SGD. JUANITO L. GARCIA

ATTY. JUANITO L. GARCIA
NOTARY PUBLIC
UNTIL Dec. 31, 1997
PTR No. 63-T-033457
ISSUED AT MLA. ON 1-2-87
TAN-161-570-81
Doc. No. 948;
Book No. 190;
Page No. XLIII;
Series of 1997."
After the alleged bribe money was increased from P10M to P20M
the complexion of the case changed swiftly.
 On June 25, 1997, Atty. Balbin filed a Motion to Resume
Proceedings in Br. 25 of the RTC of Biñan, Laguna. Attached to the
Motion was the Affidavit of Desistance of the private complainant
which states:
"I, Juvie-lyn Yambao Punongbayan, 17 years of age, a resident
of No. 5 Uranus Street, Congressional Avenue Subdivision, Quezon
City, duly assisted by private legal counsel and my parents, after
having duly sworn in accordance with law, depose and say:
"1. That I am the Complainant in the rape case filed against
Mayor Bayani 'Arthur' Alonte of Biñan, Laguna, with the RTC-
Branch 25 of Biñan, Laguna;
"2. That the case has been pending for some time, on
preliminary issues, specifically, (a) change of venue, filed with the
Supreme Court; (b) propriety of the appeal to the Court of Appeals,
and after its denial by said court, brought to the Office of the
President, on the veracity of the findings of the Five-Man
Investigating Panel of the State Prosecutor's Office, and the
Secretary of Justice, and (c) a hold-departure order filed with the
Biñan Court;
"3. That the legal process moves ever so slowly, and
meanwhile, I have already lost two (2) semesters of my college
residence. And when the actual trial is held after all the
preliminary issues are finally resolved, I anticipate a still indefinite
suspension of my schooling to attend the hearings;
"4. That during the entire period since I filed the case, my
family has lived a most abnormal life: my father and mother had to
give up their jobs; my younger brother, who is in fourth grade, had
to stop his schooling, like myself;
"5. That I do not blame anyone for the long, judicial process, I
simply wish to stop and live elsewhere with my family, where we
can start life anew, and live normally once again;
"6. That I pray that I be allowed to withdraw my complaint for
rape and the other charge for child abuse wherein the Five-Man
Investigating Panel of the Office of the State Prosecutor found a
prima facie case although the information has not been filed, and
that I will not at any time revive this, and related cases or file new
cases, whether criminal, civil, and or administrative, here or
anywhere in the Philippines;
"7. That I likewise realize that the execution of this Affidavit
will put to doubt my credibility as a witness-complainant;
"8. That this is my final decision reached without fear or
favor, premised on a corresponding commitment that there will be
no reprisals in whatever form, against members of the police force
or any other official of officer, my relatives and friends who
 extended assistance to me in whatever way, in my search for
justice.
"WHEREOF, I affix my signature this 25 day of June, 1997, in
Quezon City.
SGD. JUVIE-LYN Y. PUNONGBAYAN
JUVIE-LYN Y. PUNONGBAYAN
"Assisted by:
(Sgd) ATTY. REMEDIOS C. BALBIN
ATTY. REMEDIOS C. BALBIN
Private Prosecutor
In the presence of:
(Sgd) PABLO PUNONGBAYAN
PABLO PUNONGBAYAN
Father
(Sgd) JULIE Y. PUNONGBAYAN
JULIE Y. PUNONGBAYAN
Mother
"SUBSCRIBED AND SWORN to before me this 25 day of June,
1997, in Quezon City.
"(Sgd) ILLEGIBLE
Administering Officer
RTC Branch 94
Quezon City"
Obviously, the Motion to Resume Proceedings was intended to get the
trial court's approval for the dismissal of the rape case against the
petitioners.
cdasia

Indeed, three days thereafter or on June 28, 1997, Atty. Ramon C.

Casino moved in behalf of the petitioners to dismiss the petition for
change of venue then pending in this Court citing the affidavit of
desistance of the private complainant. On August 22, 1997, however,
Asst. Chief State Prosecutor Guiyab opposed the motion. He alleged
that he has control of the prosecution of the rape case and that he
was not aware of the desistance of the private complainant.
The legal maneuvers to dismiss the rape case against the
petitioners on the basis of the alleged affidavit of desistance of the
private complainant did not find the favor of this Court. On September
2, 1997, this Court unanimously granted the petition for change of
venue, ruling among others, viz:
xxx xxx xxx
"These affidavits give specific names, dates and methods
being used to abort, by coercion or corruption, the prosecution of
 Criminal Case No. 9619-B. It is thus incorrect for oppositors Alonte
and Concepcion to contend that the fear of the petitioner, her
private counsel and her witnesses are too generalized if not
fabricated. Indeed, the probability that in desisting from pursuing
her complaint for rape, petitioner, a minor, may have succumbed to
some illicit influence and undue pressure. To prevent possible
miscarriage of justice is a good excuse to grant the petition to
transfer the venue of Criminal Case No. 9619-B from Biñan, Laguna
to the City of Manila.
"IN VIEW WHEREOF, the Petition for Change of Venue from
Biñan, Laguna to the City of Manila is granted. The Executive
Judge of RTC Manila is ordered to raffle Crim. Case No. 9619-B to
any of its branches. The judge to whom Crim. Case No. 9619-B shall
be raffled shall resolve the petitioner's Motion to Resume
Proceedings filed in Br. XXV of the RTC of Biñan, Laguna and
determine the voluntariness and validity of petitioner's; desistance
in light of the opposition of the public prosecutor, Asst. Chief State
Prosecutor Leonardo Guiyab. The branch clerk of court of Br. XXV
of the RTC of Biñan, Laguna is ordered to personally deliver to the
Executive Judge of Manila the complete records of Crim. Case No.
9619-B upon receipt of this Resolution."
On September 17, 1997, Criminal Case No. 9619-B (re-docketed by
the Clerk of Court of Manila as Crim. Case No. 97-159955) was raffled
to Br. 53 of the RTC of Manila, presided by the respondent judge, the
Honorable Maximo A. Savellano.
On October 9, 1997, the respondent judge issued warrants of
arrest against the petitioners after a finding of probable cause.
On October 28, 1997, an Administrative Order of the DOJ was
issued empowering First Assistant City Prosecutor Marilyn R. O.
Campomanes to prosecute the case at bar. Asst. Chief State
Prosecutor Leonardo Guiab, Jr., who opposed the affidavit of
desistance was relieved from the case . The reason given in the
Administrative Order was ". . . in the interest of public service."
Prosecutor Campomanes was authorized "to move for its (case)
dismissal if the evidence on record so warrant. . ." 1
The arraignment of the petitioners took place on November 7,
1997. The State was represented by Prosecutor Marilyn Campomanes.
Petitioner Alonte was represented by Atty. Jose Flaminiano and Atty.
Sigfrid A. Fortun. Petitioner Concepcion was represented by Atty.
Ramon C. Casano. Atty. Remedios Balbin who had previously exposed
under oath the threats to the life of the private complainant and her
witnesses and the repeated attempts to buy complainant's desistance
was absent. 2
 Petitioners pled not guilty to the charge of rape upon their
arraignment. 3 Pre-trial was then waived by both the prosecution and
the defense. The proceedings continued and Prosecutor Campomanes
presented the private complainant, Ms. Punongbayan who testified on
her affidavit of desistance. She declared that her desistance was her
"personal" decision with the consent of her parents. 4 She said she was
neither paid nor pressured to desist. On questions by the respondent
judge, however, she affirmed the truth of her affidavit dated October
31, 1996 that she was raped by petitioner Alonte. Prosecutor
Campomanes marked and offered her affidavit of desistance as Exhibit
"A". 5 She called on other witnesses to testify on the voluntariness of
the affidavit of desistance. The parents of the complainant—
Pablo 6 and Julie 7 Punongbayan — declared that they did not receive
any monetary consideration for the desistance of their minor daughter.
Neither were they pressured to give their consent to the
desistance. Fourth Asst. Provincial Prosecutor Alberto
Nofuente averred that the affidavit of desistance was signed and
sworn to before him in the presence of the complainant's parents and
private counsel, Atty. Balbin. He said he explained the affidavit to
them and that the complainant voluntarily signed the same. 8
After their testimonies, Prosecutor Campomanes made the
manifestation that "with the presentation of our witnesses and the
marking of our documents (sic) we are now closing the case and that
we are praying for the dismissal of the case." 9 The respondent judge
ruled "the case is submitted for decision.'' 10 Atty. Flaminiano orally
prayed that petitioner Alonte be granted bail and Prosecutor
Campomanes offered no objection. 11
On November 10, 1997, petitioner Alonte filed an Urgent Motion to
Admit to Bail. 12 In her Comment, Prosecutor Campomanes agreed and
averred, viz.: 13
xxx xxx xxx
1. That she received a copy of the Petition for Bail.
2. That on the hearing of the instant case on November 7, 1997, the
Prosecution presented its witnesses who vehemently
signified their intention not to further prosecute the case in
Court, and there being no other witnesses to present, the
undersigned is left with no alternative but to seek the
dismissal of the instant case considering that without the
testimony of said witnesses this case has nothing to stand
on in Court.
3. That for the aforestated reason, the People interposes no
objection to the granting of Bail and in fact justice and equity
dictate that it joins the accused in his prayer for the granting
 of bail in the amount of P150,000 (ONE HUNDRED FIFTY
THOUSAND PESOS).
4. That for the aforementioned bases, the People hereby manifests
its position that the case be immediately dismissed or at
least the accused be granted bail since the record proves
that there is no more evidence to sustain the charge against
him such that the granting of bail is proper and in order.
5. That as a general rule, a hearing on the petition for bail is
necessary to prove that the guilt is not strong but in this
particular case there is no need for hearing since the
prosecution cannot prove its case against the accused as it
has no other evidence or witnesses to be presented.
On November 17, 1997, petitioner Alonte, thru counsel, filed
an Urgent Plea to Resolve the Motion for Bail. 14 On the same date,
Prosecutor Campomanes manifested that "she deems it proper and in
accord with justice and fair play to join the aforestated motion." 15
On November 25, 1997, December 1, 1997, December 8, 1997 and
December 10, 1997, petitioner Alonte filed a Second, Third, Fourth, and
Fifth Motion for early resolution of his petition for bail. 16 In all these
motions, Atty. Fortun, counsel of petitioner Alonte, alleged that copy of
the motion "... could not be served in person upon the private
prosecutor" (Atty. Balbin) in light of the distance between their
offices. 17 He relied on section 13, Rule 11 of the 1997 Rules on Civil
Procedure. The motions were not resolved by the respondent judge.
On December 18, 1997, the respondent judge promulgated
his Decision convicting the petitioners and sentencing them to
reclusion perpetua. On whether of the affidavit of desistance can be a
ground for dismissal of the rape case against the petitioners , the
respondent judge held:
"The first issue to be determined and resolved is the
'voluntariness and validity of petitioner's desistance in the light of
the opposition of the public prosecutor Asst. Chief State
Prosecutor Leonardo Guiab.' (p. 7, SC Resolution En Banc, dated
September 2, 1997; [Rollo, p. 253]) It is appropriate to quote again
a portion of the 7-page Resolution En Banc of the highest tribunal,
to wit; 'Indeed, the probability (exists) that in desisting from
pursuing her complaint for rape, petitioner, a minor, may have
succumbed to some illicit influence and undue pressure. To
prevent possible miscarriage of justice is a good excuse to grant
the petition for change of venue . . . (Rollo, p. 202).
"The Court shall narrate the facts leading to the desistance
of the private complainant which are embodied in the two (2)
affidavits of her lawyer, Atty. Remedios C. Balbin, with whom the
private complainant lives at No. 5 Uranus St., Congressional
Avenue Subdivision, Quezon City. One affidavit is dated May 24,
1997, (sic) while the other one is dated March 26, 1997. The said
affidavits are attached as exhibits to the aforementioned
Manifestation and Motion for the Resolution of Petition for Change
of Venue filed by the private complainant Juvie-Lyn Y.
Punongbayan. Exh. "C", dated May 24, 1997 , (Rollo, pp. 216-219) is
hereby quoted as follows:
xxx xxx xxx
It clearly appears in the abovequoted affidavit that repeated
bribe offers from a lawyer representing the accused Mayor Bayani
Arthur Alonte in the total amount of Ten Million Pesos
(P10,000,000.00) were made to Atty. Balbin, allocated as follows:
(1) Five Million Pesos (P5,000,000.00) for the private complainant
Juvie-lyn Y. Punongbayan; (2) Three Million Pesos (P3,000,000.00)
for her (Atty. Balbin); and (3) Two Million Pesos (P2,000,000.00) for
the mediator.
In the subsequent affidavit, dated March 26, 1997, executed
by Atty. Remedios C. Balbin (Exh. F, Rollo, pp. 224-225) she narrated
in detail the continuing veiled threats and the very tempting and
escalating offer to increase the amount of the bribe money offered
to her and the private complainant after her first affidavit, by
doubling the first offer of Ten Million Pesos (P10,000,000.00) to
Twenty Million Pesos (P20,000,000.00), in exchange for her client's
desistance, but also accompanied with veiled threats, if refused.
Said affidavit is quoted, as follows:
xxx xxx xxx
The Court underscores paragraphs (b), (c), (d), (e), (f), (g), (h),
(i), (j), (k), and (l), particularly paragraphs (i), (j) and specially
paragraph (k) of the abovequoted affidavit of Atty. Balbin which
insinuates that the presiding Judge of the RTC Biñan, Laguna, had
already been bought, and that accused Alonte, thru his numerous
emissaries, will also buy or bribe the 'the next judge when the
petition for change of venue is finally granted.' In view of this
insinuation, the undersigned presiding Judge is very careful in
deciding this case, lest he be placed under suspicion that he is
also receiving blood money that continues to flow. The Court wants
to have internal peace — the peace which money cannot buy.
Money is not everything. It is said that money is the root of all evil.
The Holy Scriptures also remind judges and jurists: ' You shall not
act dishonestly in rendering judgment. Show neither partiality to
the weak nor deterrence to the mighty, but judge your fellow men
justly.' (Leviticus 19:15). The Scriptures further say: 'What does it
profit a man if he gains the whole world but suffers the loss of his
soul?' (Mt. 16:26) and 'No one can serve two (2) masters. . . You
cannot serve God and mammon.' (Mt. 6:24, Luke 16:13). It is not
out of place to quote the Holy Scriptures because the Honorable
Supreme Court has been doing so in its quest for truth and justice.
Thus, People vs. Garcia, 209 SCRA 164, 174, the highest tribunal, in
ruling that the flight of an accused is evidence of guilt on his part,
quoted the old Testament, as follows:
"It was written in the literature of Old Testament
several centuries ago that:
'The wicked man fleeth though no man pursueth, but the
righteous are as bold as a lion.
(Proverbs, 28:1)'
Subsequently, on June 25, 1997, the private complainant and
her lawyer suddenly somersaulted or changed their common
positions or attitudes in the prosecution of this case. Evidently,
veiled threats and money had replaced the 'spiritual consideration'
which earlier, to them were 'more important than the material' to
quote Atty. Balbin in her first affidavit (Rollo, p. 217), and her reply
to Atty. Dionisio S. Daga that 'all the money in the world will not
make me change my position against my client's executing a
desistance, and that only Alonte's voluntary surrender, plea of
guilty to rape, conviction and the imposition of the corresponding
penalty will satisfy the ends of justice.
On June 26, 1997, the private complainant, thru her counsel,
Atty. Remedios C. Balbin, filed a Motion to Resume Proceedings,
dated June 25, 1997, (Rollo, pp. 238-244) praying therein that the
RTC, Biñan, Laguna, where this case was still pending, vacate its
Order to Suspend Hearings, to enable it to act on all incidents
including private Complainant's Affidavit of Desistance attached
thereto. (Rollo, pp. 240-241) which affidavit of desistance is quoted
hereunder as follows:
xxx xxx xxx
This Court, as the trier of facts, is tasked by the highest
tribunal to find out if the private complainant, a minor 'may have
succumbed to some illicit influence and undue pressure, in order
to prevent a possible miscarriage of justice.' Evidently, the veiled
threats and acceptance of the bribe money in allocated amounts
which was subsequently raised to the irresistible amount of at
least P20,000,000.00, compelled, impelled and/or tempted the
private complainant, her father Pablo Punongbayan and her mother
Julie Y. Punongbayan, and her lawyer and private prosecutor Atty.
Remedios C. Balbin, who did not appear in Court on November 7,
1997, despite notice, to execute the said 'Affidavit of Desistance'
which was the ultimate goal of the accused. It is very obvious that
the private complainant, a minor, 'succumbed to some illicit
influence and undue pressure,' to borrow the language of the
Honorable Supreme Court En Banc. It would be the height of
extreme naivete or gullibility for any normal individual to conclude
 otherwise. The Court does not believe that the private
complainant, her lawyer, and her parents did not receive a single
centavo when they executed and signed the said affidavit of
desistance. The private complainant was definitely lying and/or
somebody taught her to lie when she testified in Court on
November 7, 1997 that she has 'not received any single cent.'
This Court cannot close its eyes to the realities in this
case. It cannot play the role of blind, deaf and dumb or one who
has eyes but cannot see or refuses to see. It cannot live in a world
of make believe or let us say pretend. The 'Affidavit of Desistance'
executed by the private complainant assisted by her lawyer and
signed by her parents, was and is undoubtedly, heavily tainted with
acceptance of bribe money which together with the continuing
veiled threats accompanying the same, invalidated the said
affidavit. The rule of law, and not the roll of money and threats,
should and must prevail."
On December 19, 1997, petitioner Alonte filed a Motion for
Reconsideration. Petitioner assailed his conviction without due
process of law and the refusal of the respondent judge to dismiss the
case in light of the desistance of the private complainant. He argued:
xxx xxx xxx
"In People vs. Caruncho, L-57804, January 23, 1984, 127
SCRA 16, the Supreme Court made ineluctably clear that it is the
right of an offended party to withdraw the further prosecution of a
grievance especially where, as in this case, a personal offense is
the subject thereof:
'. . . True it is, that in criminal cases society is the
ultimate aggrieved party for which reason the People of the
Philippines is designated as the plaintiff. True it is also that
except as provided in Article 344 of the Revised Penal Code,
a pardon by the private offended party does not extinguish
criminal liability. And true it is further that the dropping of
criminal cases by the execution of affidavits of desistance by
complainants is not looked with favor. These are Hornbook
doctrines.But what is actually done in our criminal justice
system?" First, there is plea bargaining between the
prosecution and the defense. For instance, murder is charged
but in exchange for a plea of guilty the charge is reduced to
homicide and the accused is allowed to claim a number of
mitigating circumstances. It is not uncommon for estafa,
libel, physical injuries and even homicide cases to be
dismissed because the complainant has lost interest or
alleged that the complaint was filed as a result of a
misunderstanding. A number of examples can be given and
they can fill a book.'
 Again, in People vs. Evangelista, L-45089, April 27, 1982, 113
SCRA 713, 720, the Supreme Court further declared:
'It may be noted that the crimes in question (forcible
abduction with rape) are among those enumerated in Article
344 of the Revised Penal Code, which crimes cannot be
prosecuted de officio. In other words, the crimes of abduction
and rape are in the nature of private offense, inasmuch as the
law has reposed 'the right to institute such proceedings
exclusively and successively in the offended person, her
parents, grandparents or guardian' . . . Accordingly, if after
filing the complaint the offended party in the case at bar
decided that she was unable to face the scandal of public
trial, or, if for some private reason she preferred to suffer the
outrage in silence, then, corollary to her right to institute the
proceedings, she should have been allowed to withdraw her
complaint and desist from prosecuting the case (Emphasis
supplied)."
Petitioner Concepcion did not submit any motion for reconsideration.
Without waiting for the resolution of his motion for reconsideration,
petitioner Alonte repaired to this Court. So did petitioner Concepcion.
Without doubt, the petitions at bar raise two (2) fulcrum issues:
(1) the correctness of the ruling of the respondent judge that the
desistance of the complainant is not a ground to dismiss the rape
charge against the petitioners, and (2) the invalidity of petitioners'
conviction on the ground of denial of due process. Cdpr

I agree with the learned disquisition of Mr. Justice Vitug that we

should set aside the conviction of the petitioners for patent violation
of their right to due process of law. I write this Separate Opinion to
highlight the erroneousness of the shocking stance of the State
Prosecutor that the rape charge should be dismissed in view of the
desistance of the private complainant. But our ruling giving no effect
on the affidavit of desistance should not based on the reason that it
was procured by threat or intimidation or any payment of money as the
respondent judge opined in his Decision. The respondent judge arrived
at this conclusion on the basis of the affidavits of Atty. Balbin, the
counsel of the private complainant. This is erroneous for Atty. Balbin
was never called to the witness stand to testify on the truth of her
affidavits. Her affidavits therefore are hearsay evidence and should
not have been relied upon by the respondent judge. The affidavit of
desistance cannot abort the rape charge against the petitioners on the
simple ground that it did not state that the private complainant-affiant
was not raped by petitioner Alonte. In truth, the private complainant
affirmed her earlier Reply-Affidavit where she narrated in detail how
petitioner Alonte raped her. Moreover, the rape charge has been filed in
Court and it is not anymore the absolute privilege of the complainant
to desist from continuing with the case.
This separate opinion unequivocably addresses the issue of
whether the desistance of the victim can stop the further prosecution
of the petitioners.
I
In Philippine jurisprudence, desistance has been equated with
recantation or retraction.
To "recant" means to "withdraw or repudiate formally and
publicly;" 18 "to renounce or withdraw a prior statement.'' 19 To "retract"
means to "take back;" "to retract an offer is to withdraw it before
acceptance." 20 A recantation usually applies to a repudiation by a
complainant or a witness, either for the prosecution or the defense,
who has previously given an extra-judicial statement 21 or testimony in
court. 22 Repudiation may be made in writing, i.e., by sworn
statement, 23 or by testifying on the witness stand. 24
Mere retraction by a witness or by complainant of his or her
testimony does not necessarily vitiate the original testimony or
statement, if credible. 25 The general rule is that courts look with
disfavor upon retractions of testimonies previously given in
court. 26 This rule applies to crimes, 27 offenses 2 8 as well as to
administrative offenses. 29 The reason is because affidavits of
retraction can easily be secured from poor and ignorant witnesses,
usually through intimidation or for monetary
consideration. 30 Moreover, there is always the probability that they will
later be repudiated 31 and there would never be an end to criminal
litigation. 32 It would also be a dangerous rule for courts to reject
testimonies solemnly taken before courts of justice simply because
the witnesses who had given them later on changed their minds for
one reason or another. This would make solemn trials a mockery and
place the investigation of the truth at the mercy of unscrupulous
witnesses. 33
The general rule notwithstanding, the affidavit should not be
peremptorily dismissed as a useless scrap of paper. There are
instances when a recantation may create serious doubts as to the
guilt of the accused. 34 A retracted statement or testimony must be
subject to scrupulous examination. The previous statement or
testimony and the subsequent one must be carefully compared and
the circumstances under which each was given and the reasons and
motives for the change carefully scrutinized. The veracity of each
statement or testimony must be tested by the credibility of the
witness which is left for the judge to decide. 35 In short, only where
there exists special circumstances in the case which when coupled
with the retraction raise doubts as to the truth of the testimony or
statement given, can a retraction be considered and upheld. 36
A survey of our jurisprudence reveals that the same rule has been
applied to affidavits of desistance. 37 An affidavit of desistance is
understood to be a sworn statement executed by a complainant in a
criminal or administrative case that he or she is discontinuing the
action filed upon his or her complaint for whatever reason he or she
may cite. The court attaches no persuasive value to a desistance
especially when executed as an afterthought. 38 However, as in
retractions, an affidavit of desistance calls for a reexamination of the
records of the case. 39
In private crimes, an affidavit of desistance filed by a private
complainant is also frowned upon by the courts. Although such
affidavit may deserve a second look at the case, there is hardly an
instance when this Court upheld it in private crimes and dismissed the
case on the sole basis thereof. Indeed, a case is not dismissed upon
mere affidavit of desistance of the complainant, particularly where
there exist special circumstances that raise doubts as to the
reliability of the affidavit. 40
Usually in private crimes, an affidavit of desistance is executed
by the private complainant after pardoning and forgiving the offender.
In this instance, the court treats the affidavit as in express
pardon. 41 It does not ipso facto dismiss the case but determines the
timeliness and validity thereof.
Private crimes are crimes against chastity such as adultery and
concubinage, seduction, abduction, rape and acts of lasciviousness.
Their institution, prosecution and extinction are governed by Article
344 of the Revised Penal Code, viz:
"Art. 344. Prosecution of the crimes of adultery,
concubinage, seduction, abduction, rape and acts of
lasciviousness. — The crimes of adultery and concubinage shall
not be prosecuted except upon a complaint filed by the offended
spouse.
The offended party cannot institute criminal prosecution
without including both the guilty parties, if they are both alive, nor
in any case, if he shall have consented or pardoned the offenders.
The offenses of seduction, abduction, rape, or acts of
lasciviousness, shall not be prosecuted except upon a complaint
filed by the offended party or her parents, grandparents, or
guardian, nor in any case, the offender has been expressly
pardoned by the above-named persons, as the case may be.
 In cases of seduction, abduction, acts of lasciviousness and
rape, the marriage of the offender with the offended party shall
extinguish the criminal action or remit the penalty already imposed
upon him. The provisions of this paragraph shall also be applicable
to the co-principals, accomplices and accessories after the fact of
the above-mentioned crimes."
Private crimes cannot be prosecuted except upon complaint filed
by the offended party. In adultery and concubinage, the offended party
must implead both the guilty parties and must not have consented or
pardoned the offenders. In seduction, abduction, rape and acts of
lasciviousness, the complaint must be filed by the offended party or
her parents, grandparents or guardian. The complainant-must not have
expressly pardoned the offender.
Article 344 also provides for the extinction of criminal liability in
private crimes. It mentions two modes: pardon and marriage, which
when validly and timely made, result in the total extinction of criminal
liability of the offender. 42 The pardon in private crimes must be
made before the institution of the criminal action. 43 In adultery and
concubinage, the pardon may be express or implied while in seduction,
abduction, rape and acts of lasciviousness, the pardon must be
express. In all cases, the pardon must come prior to the institution of
the criminal action. After the case has been filed in court, any pardon
made by the private complainant, whether by sworn statement or on
the witness stand, cannot extinguish criminal liability . The only act
that extinguishes the penal action and the penalty that may have been
imposed is the marriage between the offender and the offended
party. 44
As this Court declared in the case of Donio-Teves v. Vamenta,
Jr.: 45

"The term "private crimes" in reference to felonies which

cannot be prosecuted except upon complaint filed by the
aggrieved party, is misleading. Far from what it implies, it is not
only the aggrieved party who is offended in such crimes but also
the State. Every violation of penal laws results in the disturbance
of public order and safety which the State is committed to uphold
and protect. If the law imposes the condition that private crimes
like adultery shall not be prosecuted except upon complaint filed
by the offended party, it is, as herein pointed earlier "out of
consideration for the aggrieved party who might prefer to suffer
the outrage in silence rather than go through the scandal of a
public trial." Once a complaint is filed, the will of the offended
party is ascertained and the action proceeds just as in any other
crime. This is shown by the fact that after filing a complaint, any
pardon given by the complainant to the offender would be
 unavailing. It is true, the institution of the action in so-called
private crime is at the option of the aggrieved party. But it is
equally true that once the choice is made manifest, the law will be
applied in full force beyond the control of, and inspite of the
complainant, his death notwithstanding."
The filing of a complaint in private crimes is merely a condition
precedent to the exercise by the proper authorities of the power to
prosecute the guilty parties.46 It is the complaint that starts the
prosecutory proceeding without which the fiscal and the court cannot
exercise jurisdiction over the case. 47 Once the complaint is filed, the
action proceeds just as in any other crime.
We follow the postulate that a criminal offense is an outrage to
the sovereign state 48 and the right of prosecution for a crime is one of
the attributes of the sovereign power. 49 Thus, criminal actions are
usually commenced by the State, through the People of the
Philippines, and the offended party is merely a complaining
witness. 50 In private crimes, however, or those which cannot be
prosecuted de oficio, the offended party assumes a more predominant
role since the right to commence the action or refrain therefrom, is a
matter exclusively within his power and option. 51 The sovereign state
deems it the wiser policy, in private crimes, to let the aggrieved party
and her family decide whether to expose to public view the vices,
faults and disgraceful acts occurring in the family. 52 But once the
offended party files the complaint, her will is ascertained and the
action proceeds just as in any other crime. The decision of the
complainant to undergo the scandal of a public trial necessarily
connotes the willingness to face the scandal . 53 The private
complainant is deemed to have shed off her privacy and the crime
ceases to be "private" and becomes "public." The State, through the
fiscal, takes over the prosecution of the case and the victim's change
of heart and mind will not affect the State's right to vindicate the
outrage against the violation of its law. 54
This is the reason why pardon in crimes of chastity must come
before the institution of the criminal action. Pardon by the offended
party extinguishes criminal liability when made while the crime is still
"private" and within the control of the offended party. But once the
case is filed in court, the pardon cannot ipso factooperate to dismiss
the case. After the institution of the criminal action, any pardon given
by the complainant to the offender would be unavailing, 55 except of
course when the offender validly marries the offended party. 56 The
offended party's pardon of the offender in a seduction case after the
criminal action had been instituted constitutes no bar to said
action. 57 A pardon given in a rape case after the filing of the action in
court "comes too late to hide the shameful occurrence from public
notice." 58
Even the death of the offended party cannot extinguish the case
once it is filed in court. 59 If the offended party dies immediately after
filing the complaint but before the institution of the criminal action,
his death is not a ground to dismiss the case. 60 Clearly, the will and
participation of the offended party is necessary only to determine
whether to file the complaint or not. Thereafter, the will of the State
prevails.
Article 344 does not include desistance of the offended party
from prosecuting the case as a ground for extinction of criminal
liability whether total 61 or partial.62 Hence, only when the desistance is
grounded on forgiveness and pardon and is made before the institution
of the criminal action, can it extinguish criminal liability.
Desistance, per se, is not equivalent to pardon.
In the case at bar, the "Affidavit of Desistance" of Juvielyn is not
an express pardon of the accused and the crime committed. Private
complainant desisted from prosecuting the case against the
petitioners because she wished "to start life anew and live normally
again." She reiterated this reason on the witness stand. She
complained that members of the media were bothering and harassing
her and that she wanted to go back to her normal life. She never said
that she forgave the petitioners. She did not absolve them from their
culpability. She did not give any exculpatory fact that would raise
doubts about her rape. She did not say that she consented to
petitioner Alonte's acts. Moreover, the rape case is already in court
and it is no longer her right to decide whether or not the charge should
be continued. As we held in Crespo v. Mogul: 63
xxx xxx xxx
"The rule in this jurisdiction is that once a complaint or
information is filed in court any disposition of the case as to its
dismissal or conviction or acquittal of the accused rests in the
sound discretion of the court. Although the fiscal retains the
direction and control of the prosecution of criminal cases even
while the case is already in court he cannot impose his opinion on
the trial court. The court is the best and sole judge on what to do
with the case before it. The determination of the case is within its
exclusive jurisdiction and competence. A motion to dismiss the
case filed by the fiscal should be addressed to the court who has
the option to grant or deny the same. It does not matter if this is
done before or after the arraignment of the accused or that the
motion was filed after a reinvestigation or upon instructions of the
Secretary of Justice who reviewed the records of the
investigation."
 II
The next issue is the validity of the conviction of petitioners .
Petitioners contend that they were convicted without undergoing any
trial. Respondent judge insists otherwise. He claims that petitioners
submitted the case on the merits and relied principally on the Affidavit
of Desistance. He recounts the events that took place before the
presentation of private complainant as revealed by the transcripts of
November 7, 1997, viz:
"Prosecutor Campomanes
Your Honor, the complaining witness/private complainant
Juvielyn Punongbayan is present here in Court, and a while
ago, I was given a copy of her Affidavit of Desistance, so I
would like to present her in order to attest to the veracity of
her Affidavit of Desistance, your Honor, and for the Court to
hear her testimony.
Court
We will have a separate trial, this involved a heinous offense
and that there is not even any plea-bargaining in this case.
Prosecutor Campomanes
Yes, your Honor, I understand that.
Court
So you have to mark now your documentary evidence in
preparation for trial.
Prosecutor Campomanes
Yes, your Honor.
Court
There are many documentary evidence mentioned by the
Supreme Court in its seven (7) page . . . (may I see the record)
seven (7) page resolution, dated September 2, 1997, and that
this case was assigned to this Court as the trial Judge. This
Court has already arraigned the accused and he pleaded not
guilty, and so the next step is pre-trial. The Order of the
Supreme Court is to direct this Court not only to determine
the voluntariness but also the validity of the Affidavit of
Desistance mentioned by the Court which was also brought
to the attention of the Supreme Court. llcd

Prosecutor Campomanes
And to the Department of Justice likewise your Honor.
Court
 And that's why the Supreme Court instead of resolving it sent
the records to this Court to determine the voluntariness and
the validity of the Desistance, but they must be determined
after trial on the merits.
Prosecutor Campomanes
Your Honor please, representing the people. Its events now
will prove that there is no more need for the prosecution to
go on trial of this case, considering that the
private complainant herself had already furnished the
Department of Justice a copy of her Affidavit of Desistance.
Court
What does it say there?
Prosecutor Campomanes
That she is no longer interested in further prosecuting this
case, and that she is now desisting in going to full blown
trial, and considering your Honor, further, that this is a
private offense, then, the Department of Justice feels that it
can not be more popish than the Pope.
Court
That is the stand of the Department of the Justice. But the
Supreme Court belongs to a different Department, I am
governed by the Supreme Court, because I am a Judge, I am
not from the Department of Justice.
Prosecutor Campomanes
We are all aware your Honor, that we will just be prolonging
the agony, in fairness to everybody, considering that we are
representing the people, but we are not representing only . . .
the Department of Justice is not only representing the
complainant in this case but we are also for justice to be
rendered to the respondent as well.
Court
I am rendering fair justice to everyone. That is the sense of
this Court. That is the perception of this Court with respect
to the Supreme Court resolution, in the first place, that
Affidavit does not negate the commission of the crime. You
want us to dismiss this case when the Affidavit does not
negate the commission of the crime?
Prosecutor Campomanes
That's why we will be presenting her in Open Court, your
Honor.
Court
 Just to affirm that?
Prosecutor Campomanes
No to prove . . .
Court
What happened . . . how about the Prosecution Department,
they have control of the prosecution, and the offended party
herself, has not negated the commission of the crime, is
there anything there to show that she did not . . . that the
accused . . . did not commit the crime charged?
Prosecutor Campomanes
That's why we will be presenting her in Court, whatever is
not here will be clarified.
Court
So, we will go to a trial on the merits you present that
affidavit, that's a part of your evidence.
Prosecutor Campomanes
The people is ready to present that . . . the complaining
witness.
Court
We will have a trial on the merits.
Prosecutor Campomanes
Your Honor please, being a woman, I have extensively
discussed this matter with the complaining witness and she
intimated to this representation that she can not bear
another day of coming here, with all these people staring at
her with everybody looking at her as if she is something . . .
Court
On December 13, 1996, petitioner Punongbayan through
private counsel, Atty. Remedios C. Balbin and the Assistant
State Prosecutor Guiab, Jr. who is not here both were
relieved and changed with a new lady prosecutor, prayed that
the case be tried by the Regional Trial Court of Manila, they
cited the following grounds: 'THE GREAT DANGER TO THE
LIVES OF BOTH PRIVATE COMPLAINANT AND THE
IMMEDIATE MEMBERS OF HER FAMILY AND THEIR
WITNESSES AS THEY OPENLY IDENTIFIED THE PRINCIPAL
ACCUSED MAYOR ALONTE WHO IS ACKNOWLEDGED AS A
POWERFUL POLITICAL FIGURE AND ALMOST AN
INSTITUTION IN BIÑAN LAGUNA AND [THE] GREAT DANGERS
TO THE LIVES OF WITNESSES WHO OTHERWISE WISH TO
COME OUT IN THE OPEN AND TESTIFY ON THE MORAL AND
CRIMINAL ACTIVITIES OF BOTH ACCUSED PERPETRATED
UPON VERY YOUNG GIRLS STUDENTS OF BIÑAN LAGUNA
THAT WILL NOT DO SO IN THE TERMS OF THE ACCUSED
MAYOR" that is why it was the prayer of the offended party
and the Supreme Court granted the Motion for Change of
Venue, and we are now on a new venue, where the danger to
the lives of the witness is no longer present, on January 7,
1997, Alonte filed an Opposition thereto, and on April 23, 1997,
the petitioner, the offended party through the Honorable
Secretary of Justice Teofisto Guingona and Chief State
Prosecutor Jovencito Zuno filed a Manifestation and Motion
for Resolution of the Petition For Change of Venue. Attached
to the motion of the Honorable Secretary of Justice Guingona
and Chief State Prosecutor Jovencito Zuno were the
affidavits of the petitioner, her lawyer, Atty. Remedios Balbin,
Dolores Yambao, Bienvenido Salandanan and Evelyn Celso
with their contention that the prosecution witnesses and the
private counsel of petitioner are exposed to kidnapping,
harassment, grave threats and tempting offers of bribe
money, that was the stand of your department . . . And then
later on June 28, 1997 . . . we have to review this case
because this involves public interest . . . on June 23,
1997, Atty. Casano in behalf of the oppositors, two (2)
oppositors, filed a motion to dismiss the petition for change
of venue in the Supreme Court on the ground that it has
become moot, he alleges that the petitioner despite the
motion to resume the proceedings in criminal case no. 96-19-
B in said motion, the petitioner informed the Court that she is
desisting . . . informed the Supreme Court that she is
desisting from proceeding with the case , it is the same
affidavit she prayed that the trial Court, on her affidavit of
desistance . . . Atty. Casano also submitted to this Court, to
the Supreme Court the manifestation of the petitioner joining
the oppositors' prayer to dismiss her petition to a change of
venue, the manifestation was also signed by Atty. Remedios
Balbin as private prosecutor, the Supreme Court required
Assistant Chief State Prosecutor Leonardo Guiab to
comment on the motion to dismiss filed by Atty. Casano
which involve the same affidavit that you have just read. On
August 22, 1997, assistant Chief State Prosecutor Guiab filed
his comment, he alleged that he is not aware of the
desistance of the petitioner in criminal case no. 96-19-B, and
in said desistance there is two (2) legal effect, [that] the
public prosecutor has the control and direction of the
prosecution in criminal action, he prayed for the denial of the
Motion to Dismiss and reiterated his petition for change of
venue, the Supreme Court granted the change of venue and in
granting the change of venue the highest tribunal which we
are all subordinates, says: for the record, in their
manifestation and motion for the resolution of petition to a
change of venue the Secretary of Justice and Chief State
Prosecutor submitted various affidavits in support of their
allegations that prosecution witnesses and private legal
counsel are exposed to KIDNAPPING, HARASSMENT, GRAVE
THREATS, AND TEMPTING OFFERS OF BRIBE MONEY all
intended to extract an affidavit of desistance from the private
complainant, this is now the affidavit of desistance in her
affidavit dated December 16, 1996, the petitioner the
offended party, the herein offended party Juvielyn
Punongbayan alleged etc . . . etc . . . in support of her petition
and then she alleged that during the last week of February,
1997, she was visited by one Lourdes Salaysay, she stated
that Mrs. Salaysay told her that Mrs. Alonte, wife of Mayor
Alonte requested her to settle Alonte's case, she was
informed that Mrs. Alonte was offering P10,000,000.00, will
send her to school and give her house and send her parents
abroad, Atty. Remedios C. Balbin is not here now, I am just
quoting the Supreme Court, counsel, private counsel of
petitioner also executed an affidavit dated February 1997,
quote: the Supreme Court quote to them: to put on record the
attempting, influence, directly, in exchange of valuable
consideration, that the Rape charge against Mayor Bayani
Arthur Alone, she alleged that in two (2) occasions Atty
Romero conveyed to me the message of Mayor Alonte,
namely: to drop the rape case against him, and that he would
give a consideration of P10,000,000.00 'to be apportioned as
follows: P5,000,000.00, for the private complainant, your
client and the prosecutor P3,000,000.00 for me, as private
prosecutor, that is what Atty. Balbin said, P4,000,000.00 for
her, the mediator, so there seems to be a liberal flow of blood
money, that is why the Supreme Court ordered the Court to
determine the validity, and there is another, dated March 19,
1997. I have to remind everybody about what happened, this
thing did not come from me, I am not fabricating anything
this comes from the highest tribunal jurat, to whom I am
responsible, another affidavit of Atty. Balbin, she narrated the
continuing attempts to bribe her and threatened her, so there
were continuing events, they alleged, the People's Bureau,
Office of the Mayor of Quezon city, extensively discuss the
squatting case with against his client, that after a brief
exchange on the status of the case, they confided to me his
real purpose, that it started of by saying he was the legal
counsel of the gambling lords of Malabon for which he get a
monthly retainer of P15,000.00 exclusive of transportation
expenses, but he also stated that he knows all the network of
the gambling lord through out the country, which is quite
 strong and unified, that I then ask him "what do you mean? "
" Is Alonte into gambling too, that he is part of the network
you speak of?", that Atty. Daga did not reply, but instead said,
they are prepared to double the offer made to by Atty. Romero
which was published in the newspaper at P10,000,000.00, so,
its double, double your money, so its P20,000,000.00, that I
told him, its Atty. Balbin, that all the money in the world, all
the money in the world will not make me change my position
against my client executing a desistance and that Alonte's
voluntary surrender plea of guilty to rape, conviction, and the
imposition of the corresponding penalty will satisfy the ends
of justice, but I told him, that my client's case is not isolated,
there being five (5) other minors similarly place and Alonte's
will be stopped from doing more harm that Atty. Daga, then
told me in Filipino if you do not accede to a desistance, then
they will be force to but because he did not [complete] the
sentence asked him directly, what do you mean, what do you
intend to do, and he replied, go on with the case, [buy] the
judge, [buy] the judge, that I am believing, and I reacted
saying, but they have already done so, Judge Francisco
Biñan, Judge Francisco Biñan suddenly change his attitude
towards the prosecution, perhaps you are referring to the
next judge when the petition for change of venue is finally
granted that Atty. Daga did not reply, and he reiterated that
his principal, referring to them again as gambling lords,
wanted desistance, after which he excused himself and left,
that I execute this affidavit, as Atty . Balbin attests to the
truth of the incident with Atty. Dionisio Daga which occurred
in the afternoon of March 6, 1997 at my office, stating . . .
( JUDGE READING THE RECORDS OF THE CASE )
Court
Then, the Supreme Court said, these affidavits, the one
attached gave specific names, dates and methods . . . a
coercion of corruption, the prosecution of Criminal Case No.
96-19-B (JUDGE CONTINUED READING THE RECORDS OF THE
CASE ) that is desisting for pursuing her complaint for Rape
petitioner a minor, they have . . . illicit, influence and due
pressure to prevent . . . Criminal Case No. 96-19-B to any of
its Branch, just to call the Criminal Case No. 96-19-B shall be
raffled, shall result the petitioner's motion to resume
proceedings, filed in Branch 26, in the RTC of Laguna, to
determine the voluntariness and validity of the petitioner's
desistance in the light of the position of the public
prosecutor, Assistant Chief Prosecutor Leonardo Guiab . . . I.
don't know what will be the outcome . . . you may contend
that because of that affidavit of the desistance there is
reasonable doubt . . . etc . . . but still, that will be placing the
 cart before the horse . . . you have to go to a regular trial on
the merits . . . because this is a heinous offense which
cannot . . . and during the pre-trial cannot be subject to a
plea-bargaining, and with respect to its new law which took
effect in 1993, that is a new one, it was placed to the
category of a heinous offense . . .
Prosecutor Campomanes
So we go on trial your Honor, and we will present the
complaining witness, and let the Court decide on the basis of
the complainants testimony . . . private complainant's
testimony before this Honorable Court . . .
xxx xxx xxx
Prosecutor Campomanes
That's why we are presenting the private complainant, the
principal witness, the mother who is also a signatory to this
affidavit of desistance, everybody who have been a part and
participant in the making and preparation of this affidavit of
desistance, they have already signed these affidavit of
desistance.
Court
And we also have the affidavits mentioned by the Supreme
Court, because I was . . . all of those documents in the
determination of whether that affidavit is valid.
Prosecutor Campomanes
Yes, your Honor.
Court
We . . . the Court cannot close his eyes to the other
affidavits . . . because . . . that's why precisely the Supreme
Court ordered me to hear this case.
Prosecutor Campomanes
We understand that your Honor.
Court
There are may conflicting matters to be solve . . . conflicting
matters to be tackled in this case.
Prosecutor Campomanes
May we present the private complainant, your Honor . . ." 64

The records show that the hearing of November 7, 1997 was set
for arraignment of the petitioners. 65 After the counsels made their
respective appearances, Prosecutor Campomanes presented her
authority to appear as prosecutor in lieu of Asst. Chief State
Prosecutor Guiyab, Jr., both petitioners pleaded not guilty to the
charge. Respondent judge then set the case for pretrial which the
parties, however, waived. The proceedings continued and Prosecutor
Campomanes manifested there was no need for the prosecution to go
to trial in view of the Affidavit of Desistance of the private
complainant. Respondent judge, however, observed that private
complainant did not negate the commission of the crime in her
Affidavit of Desistance. Respondent judge expressed his misgivings on
the validity of the Affidavit of Desistance because of the September 2,
1997 Resolution of this Court citing affidavits where allegations of
bribery were made to extract said affidavit from complainant.
Prosecutor Campomanes then offered to present the private
complainant to attest to the voluntariness and veracity of her Affidavit
of Desistance. Respondent judge averred whether the court should
proceed to a trial on the merits. Prosecutor Campomanes declared
that they could go on trial and let the court decide the merits of the
case on the basis of the testimony of private complainant and the
other witnesses. It was then that private complainant was presented
as a witness.
From the garbled transcripts of the hearing on November 7, 1997,
it is not clear what both respondent judge and the public prosecutor
intended the proceedings to be. Respondent judge repeatedly declared
that the proceedings before him was to be a trial on the merits. The
public prosecutor agreed to go to trial, but at the same time moved to
present private complainant and her witnesses to testify on the
voluntariness of her Affidavit of Desistance. Respondent judge and the
public prosecutor were, obviously, not tuned in to each other.
I agree with the majority that the November 7, 1997 proceedings
could not have been a trial on the merits. First of all, the proceedings
did not conform with the procedure for trial as provided in the 1985
Rules on Criminal Procedure. Section 3 of Rule 119 provides:
"Sec. 3. Order of Trial. — The trial shall proceed in the
following order:
(a) The prosecution shall present evidence to prove the
charge and, in the proper case, the civil liability.
(b) The accused may present evidence to prove his defense,
and damages, if any, arising from the issuance of any provisional
remedy in the case.
(c) The parties may then respectively present rebutting
evidence only, unless the court, in furtherance of justice, permits
them to present additional evidence bearing upon the main issue.
 (d) Upon admission of the evidence, the case shall be
deemed submitted for decision unless the court directs the parties
to argue orally or to submit memoranda.
(e) However, when the accused admits the act or omission
charged in the complaint or information but interposes a lawful
defense, the order of trial may be modified accordingly."
In the case at bar, petitioners were never instructed to present
evidence to prove their defenses. The parties were never given the
opportunity to present their respective evidence rebutting the
testimony of private complainant. There was no admission by
petitioners of the charge in the information as to justify a change in
the order of trial. 66
Our criminal rules of procedure strictly provide the step by step
procedure to be followed by courts in cases punishable by
death. 67 This rule also applies to all other criminal cases, particularly
where the imposable penalty is reclusion perpetua. The reason for this
is to assure that the state makes no mistake in taking life and liberty
except that of the guilty. 68 Thus:
"Judges should be reminded that each step in the trial
process serves a specific purpose. In the trial of criminal cases,
the constitutional presumption of innocence in favor of the
accused requires that an accused be given sufficient opportunity
to present his defense. So with the prosecution as to its evidence.
Hence, any deviation from the regular course of trial should
always take into consideration the rights of all the parties to the
case, whether the prosecution or defense." 69
Second, the admission of private complainant's affidavit of
October 21, 1996 was made solely in response to respondent judge's
own questioning. 70 It was this affidavit which respondent judge used
to convict the petitioners. This affidavit, however, was not marked nor
was it formally offered before the court. The Revised Rules on
Evidence clearly and expressly provide that "[t]he court shall consider
no evidence which has not been formally offered." 71 Evidence not
formally offered in court will not be taken into consideration by the
court in disposing of the issues of the case. Any evidence which a
party desires to submit for the consideration of the court must
formally be offered by him, 72 otherwise it is excluded and rejected. 73
Third, where there is a doubt as to the nature of the criminal
proceedings before the court, this doubt must be resolved in favor of
the accused who must be given the widest latitude of action to prove
his innocence. 74 It is in petitioners' favor that the proceedings of
November 7, 1997 be ,treated as a hearing on the motion to dismiss,
not a trial on the merits. To rule otherwise will effectively deny
 petitioners due process and all the other rights of an accused under
the Bill of Rights and our Rules in Criminal Procedure. cdtai

Indeed, following respondent judge's finding and assuming that

the November 7, 1997 hearing was already a trial on the merits,
petitioners were never afforded their right to confront and cross-
examine the witness. The court did not, at the very least, inquire as to
whether the petitioners wanted to cross-examine private complainant
with respect to her affidavit of October 21, 1996. No opportunity to
cross-examine was afforded petitioners and their counsels such that
they cannot be deemed to have waived said right by inaction. 7 5
Regalado, Davide, Jr., Romero, Bellosillo,
Mendoza, and Panganiban, JJ ., concur.
(Alonte v. Savellano, Jr., G.R. Nos. 131652 & 131728, [March 9, 1998],
|||

350 PHIL 700-770)

[G.R. No. 104961. October 7, 1994.]

CONGRESSMAN FRANCISCO B. ANIAG,

JR., petitioner, vs. COMMISSION ON ELECTIONS and
DEPARTMENT OF JUSTICE SPECIAL TASK
FORCE,respondents.

DECISION

BELLOSILLO,J : p
 PETITIONER assails in this petition (for declaratory relief,
certiorari and prohibition) the following resolutions of the
Commission on Elections: Resolution No. 2327 dated 26 December
1991 for being unconstitutional, and Resolution No. 92-0829 dated
6 April 1992 and Resolution No. 92-0999 dated 23 April 1992, for
want of legal and factual bases. cdrep

The factual backdrop: In preparation for the synchronized

national and local elections scheduled on 11 May 1992, the
Commission on Elections (COMELEC) issued on 11 December
1991 Resolution No. 2323 otherwise referred to as the "Gun Ban,"
promulgating rules and regulations on bearing, carrying and
transporting of firearms or other deadly weapons, on security
personnel or bodyguards, on bearing arms by members of security
agencies or police organizations, and organization or maintenance
of reaction forces during the election period. 1 Subsequently, on 26
December 1991 COMELEC issued Resolution No. 2327 providing for
the summary disqualification of candidates engaged in
gunrunning, using and transporting of firearms, organizing special
strike forces, and establishing spot checkpoints. 2
On 10 January 1992, pursuant to the "Gun Ban," Mr. Serapio P.
Taccad, Sergeant-at-Arms, House of Representatives, wrote
petitioner who was then Congressman of the 1st District of
Bulacan requesting the return of the two (2) firearms 3 issued to
him by the House of Representatives. Upon being advised of the
request on 13 January 1992 by his staff, petitioner immediately
instructed his driver, Ernesto Arellano, to pick up the firearms from
petitioner's house at Valle Verde and return them to Congress.
Meanwhile, at about five o'clock in the afternoon of the same
day, the Philippine National Police (PNP) headed by Senior
Superintendent Danilo Cordero set up a checkpoint outside the
Batasan Complex some twenty (20) meters away from its
entrance. About thirty minutes later, the policemen manning the
outpost flagged down the car driven by Arellano as it approached
the checkpoint. They searched the car and found the firearms
neatly packed in their gun cases and placed in a bag in the trunk
of the car. Arellano was then apprehended and detained. He
explained that he was ordered by petitioner to get the firearms
from the house and return them to Sergeant-at Arms Taccad of the
House of Representatives.
Thereafter, the police referred Arellano's case to the Office of
the City Prosecutor for inquest. The referral did not include
petitioner as among those charged with an election offense. On 15
January 1992, the City Prosecutor ordered the release of Arellano
after finding the latter's sworn explanation meritorious. 4
On 28 January 1992, the City Prosecutor invited petitioner to
shed light on the circumstances mentioned in Arellano's sworn
explanation. Petitioner not only appeared at the preliminary
investigation to confirm Arellano's statement but also wrote the
City Prosecutor urging him to exonerate Arellano. He explained
that Arellano did not violate the firearms ban as he in fact was
complying with it when apprehended by returning the firearms to
Congress; and, that he was petitioner's driver, not a security
officer nor a bodyguard. 5
On 6 March 1992, the Office of the City Prosecutor issued a
resolution which, among other matters, recommended that the
case against Arellano be dismissed and that the "unofficial"
charge against petitioner be also dismissed. 6
Nevertheless, on 6 April 1992, upon recommendation of its
Law Department, COMELEC issued Resolution No. 92-0829
directing the filing of information against petitioner and Arellano
for violation of Sec. 261, par. (q), of B.P. Blg. 881 otherwise known
as the Omnibus Election Code, in relation to Sec. 32 of R.A. No.
7166; 7 and petitioner to show cause why he should not be
disqualified from running for an elective position, pursuant to
COMELEC Resolution No. 2327, in relation to Secs. 32, 33 and 35
of R.A. 7166, and Sec. 52, par. (c), of B.P. Blg. 881. 8
On 13 April 1992, petitioner moved for reconsideration and to
hold in abeyance the administrative proceedings as well as the
filing of the information in court. 9 On 23 April 1992, the COMELEC
denied petitioner's motion for reconsideration. 10 Hence, this
recourse.
Petitioner questions the constitutionality of Resolution No.
2327. He argues that the rules and regulations of an administrative
body must respect the limits defined by law; that the Omnibus
Election Code provides for the disqualification of any
person/candidate from running for or holding a public office, i.e.,
any person who has either been declared by competent authority
as insane or incompetent or has been sentenced by final judgment
for subversion, insurrection, rebellion or for any offense for which
he has been sentenced to a penalty of more than eighteen months
or for a crime involving moral turpitude; that gunrunning, using or
transporting firearms or similar weapons and other acts
mentioned in the resolution are not within the letter or spirit of the
provisions of the Code; that the resolution did away with the
requirement of final conviction before the commission of certain
offenses; that instead, it created a presumption of guilt as a
candidate may be disqualified from office in situations (a) where
the criminal charge is still pending, (b) where there is no pending
criminal case, and (c) where the accused has already been
acquitted, all contrary to the requisite quantum of proof for one to
be disqualified from running or holding public office under
the Omnibus Election Code, i.e., proof beyond reasonable doubt. As
a result, petitioner concludes, Resolution No. 2327 violates the
fundamental law thus rendering it fatally defective.
But the issue on the disqualification of petitioner from
running in the 11 May 1992 synchronized elections was rendered
moot when he lost his bid for a seat in Congress in the elections
that ensued. Consequently, it is now futile to discuss the
implications of the charge against him on his qualification to run
for public office.
LibLex

However, there still remains an important question to be

resolved, i.e.,whether he can be validly prosecuted for instructing
his driver to return to the Sergeant-at-Arms of the House of
Representatives the two firearms issued to him on the basis of the
evidence gathered from the warrantless search of his car.
Petitioner strongly protests against the manner by which the
PNP conducted the search. According to him, without a warrant
and without informing the driver of his fundamental rights the
policemen searched his car. The firearms were not tucked in the
waist nor within the immediate reach of Arellano but were neatly
packed in their gun cases and wrapped in a bag kept in the trunk
of the car. Thus, the search of his car that yielded the evidence for
the prosecution was clearly violative of Secs. 2 and 3, par. (2), Art.
III, of the Constitution. 11
Petitioner further maintains that he was neither impleaded as
party respondent in the preliminary investigation before the Office
of the City Prosecutor nor included in the charge sheet.
Consequently, making him a respondent in the criminal
information would violate his constitutional right to due process.
Petitioner disputes the charge that he violated Sec. 33 of R.A.
7166, which prohibits any candidate for public office during the
election period from employing or availing himself or engaging the
services of security personnel or bodyguards since, admittedly,
Arellano was not a security officer or bodyguard but a civilian
employee assigned to him as driver by the House of
Representatives. Specifically, petitioner further argues, Arellano
was instructed to return to Congress, as he did, the firearms in
compliance with the directive of its Sergeant-at-Arms pursuant to
the "Gun Ban," thus, no law was in fact violated. 12
On 25 June 1992, we required COMELEC to file its own
comment on the petition 13 upon manifestation of the Solicitor
General that it could not take the position of COMELEC and prayed
instead to be excused from filing the required comment. 14
COMELEC claims that petitioner is charged with violation of
Sec. 261, par. (q),in relation to Sec. 263, of B.P. Blg. 881 which
provides that "the principals, accomplices and accessories, as
defined in the Revised Penal Code, shall be criminally liable for
election offenses." It points out that it was upon petitioner's
instruction that Arellano brought the firearms in question outside
petitioner's residence, submitting that his right to be heard was
not violated as he was invited by the City Prosecutor to explain
the circumstances regarding Arellano's possession of the firearms.
Petitioner also filed a sworn written explanation about the
incident. Finally, COMELEC claims that violation of the "Gun Ban"
is mala prohibita, hence, the intention of the offender is
immaterial. 15
Be that as it may, we find no need to delve into the alleged
constitutional infirmity of Resolution No. 2327 since this petition
may be resolved without passing upon this particular issue. 16
As a rule, a valid search must be authorized by a search
warrant duly issued by an appropriate authority. However, this is
not absolute. Aside from a search incident to a lawful arrest, a
warrantless search had been upheld in cases of moving vehicles
and the seizure of evidence in plain view, 17 as well as the search
conducted at police or military checkpoints which we declared are
not illegal per se, and stressed that the warrantless search is not
violative of theConstitution for as long as the vehicle is neither
searched nor its occupants subjected to a body search, and the
inspection of the vehicle is merely limited to a visual search. 18
Petitioner contends that the guns were not tucked in
Arellano's waist nor placed within his reach, and that they were
neatly packed in gun cases and placed inside a bag at the back of
the car. Significantly, COMELEC did not rebut this claim. The
records do not show that the manner by which the package was
bundled led the PNP to suspect that it contained firearms. There
was not mention either of any report regarding any nervous,
suspicious or unnatural reaction from Arellano when the car was
stopped and searched. Given these circumstances and relying on
its visual observation, the PNP could not thoroughly search the car
lawfully as well as the package without violating the
constitutional injunction.
An extensive search without warrant could only be resorted
to if the officers conducting the search had reasonable or probable
cause to believe beforethe search that either the motorist was a
law offender or that they would find the instrumentality or
evidence pertaining to the commission of a crime in the vehicle to
be searched. 19 The existence of probable cause justifying the
warrantless search is determined by the facts of each
case. 20 Thus, we upheld the validity of the warrantless search in
situations where the smell of marijuana emanated from a plastic
bag owned by the accused, or where the accused was acting
suspiciously, and attempted to flee. 21
We also recognize the stop-and-search without warrant
conducted by police officers on the basis of prior confidential
information which were reasonably corroborated by other
attendant matters, e.g., where a confidential report that a sizeable
volume of marijuana would be transported along the route where
the search was conducted and appellants were caught in flagrante
delicto transporting drugs at the time of their arrest; 22 where
apart from the intelligence information, there were reports by an
undercover "deep penetration" agent that appellants were bringing
prohibited drugs into the country; 23 where the information that a
Caucasian coming from Sagada bringing prohibited drugs was
strengthened by the conspicuous bulge in accused's waistline and
his suspicious failure to produce his passport and other
identification papers; 24 where the physical appearance of the
accused fitted the description given in the confidential
information about a woman transporting marijuana; 25 where the
accused carrying a bulging black leather bag were suspiciously
quiet and nervous when queried about its contents; 26 or where the
identity of the drug courier was already established by police
authorities who received confidential information about the
probable arrival of accused on board one of the vessels arriving in
Dumaguete City. 27
In the case at bench, we find that the checkpoint was set up
twenty (20) meters from the entrance to the Batasan Complex to
enforce Resolution No. 2327. There was no evidence to show that
the policemen were impelled to do so because of a confidential
report leading them to reasonably believe that certain motorists
matching the description furnished by their informant were
engaged in gunrunning, transporting firearms or in organizing
special strike forces. Nor, as adverted to earlier, was there any
indication from the package or behavior of Arellano that could
have triggered the suspicion of the policemen. Absent such
justifying circumstances specifically pointing to the culpability of
petitioner and Arellano, the search could not be valid. The action
then of the policemen unreasonably intruded into petitioner's
privacy and the security of his property, in violation of Sec. 2, Art.
III, of the Constitution. Consequently, the firearms obtained in
violation of petitioner's right against warrantless search cannot be
admitted for any purpose in any proceeding.
It may be argued that the seeming acquiescence of Arellano
to the search constitutes an implied waiver of petitioner's right to
question the reasonableness of the search of the vehicle and the
seizure of the firearms.
While Resolution No. 2327 authorized the setting up of
checkpoints, it however stressed that "guidelines shall be made to
ensure that no infringement of civil and political rights results
from the implementation of this authority," and that "the places
and manner of setting up of checkpoints shall be determined in
consultation with the Committee on Firearms Ban and Security
Personnel created under Sec. 5, Resolution No. 2323." 28 The facts
show that PNP installed the checkpoint at about five o'clock in the
afternoon of 13 January 1992. The search was made soon
thereafter, or thirty minutes later. It was not shown that news of
impending checkpoints without necessarily giving their locations,
and the reason for the same have been announced in the media to
forewarn the citizens. Nor did the informal checkpoint that
afternoon carry signs informing the public of the purpose of its
operation. As a result, motorists passing that place did not have
any inkling whatsoever about the reason behind the instant
exercise. With the authorities in control to stop and search passing
vehicles, the motorists did not have any choice but to submit to
the PNP's scrutiny. Otherwise, any attempt to turnabout albeit
innocent would raise suspicion and provide probable cause for the
police to arrest the motorist and to conduct an extensive search of
his vehicle.
In the case of petitioner, only his driver was at the car at that
time it was stopped for inspection. As conceded by COMELEC,
driver Arellano did not know the purpose of the checkpoint. In the
face of fourteen (14) armed policemen conducting the
operation, 29 driver Arellano being alone and a mere employee of
petitioner could not have marshalled the strength and the courage
to protest against the extensive search conducted in the vehicle.
In such scenario, the "implied acquiescence," if there was any,
could not be more than a mere passive conformity on Arellano's
part to the search, and "consent" given under intimidating or
coercive circumstances is no consent within the purview of the
constitutional guaranty.
Moreover, the manner by which COMELEC proceeded against
petitioner runs counter to the due process clause of
the Constitution. The facts show that petitioner was not among
those charged by the PNP with violation of the Omnibus Election
Code. Nor was he subjected by the City Prosecutor to a
preliminary investigation for such offense. The non-disclosure by
the City Prosecutor to the petitioner that he was a respondent in
the preliminary investigation is violative of due process which
requires that the procedure established by law should be
obeyed. 30
COMELEC argues that petitioner was given the chance to be
heard because he was invited to enlighten the City Prosecutor
regarding the circumstances leading to the arrest of his driver, and
that petitioner in fact submitted a sworn letter of explanation
regarding the incident. This does not satisfy the requirement of
due process the essence of which is the reasonable opportunity to
be heard and to submit any evidence one may have in support of
his defense.31 Due process guarantees the observance of both
substantive and procedural rights, whatever the source of such
rights, be it the Constitution itself or only a statute or a rule of
court. 32 In Go v. Court of Appeals, 33 we held that —
While the right to preliminary investigation is statutory
rather than constitutional in its fundamental, since it has in
fact been established by statute, it is a component part of due
process in criminal justice.The right to have a preliminary
investigation conducted before being bound over to trial for a
criminal offense and hence formally at risk of incarceration or
some other penalty is not a mere formal or technical right; it is
a substantive right ....[T]he right to an opportunity to avoid a
process painful to anyone save, perhaps, to hardened
criminals is a valuable right. To deny petitioner's claim to a
preliminary investigation would be to deprive him of the full
measure of his right to due process.
Apparently, petitioner was merely invited during the
preliminary investigation of Arellano to corroborate the latter's
explanation. Petitioner then was made to believe that he was not a
party respondent in the case, so that his written explanation on
the incident was only intended to exculpate Arellano, not
petitioner himself. Hence, it cannot be seriously contended that
petitioner was fully given the opportunity to meet the accusation
 against him as he was not apprised that he was himself a
respondent when he appeared before the City Prosecutor. cdll

Finally, it must be pointed out too that petitioner's filing of a

motion for reconsideration with COMELEC cannot be considered
as a waiver of his claim to a separate preliminary investigation for
himself. The motion itself expresses petitioner's vigorous
insistence on his right. Petitioner's protestation started as soon as
he learned of his inclusion in the charge, and did not ease up even
after COMELEC's denial of his motion for reconsideration. This is
understandably so since the prohibition against carrying firearms
bears the penalty of imprisonment of not less than one (1) year nor
more than six (6) years without probation and with disqualification
from holding public office, and deprivation of the right to suffrage.
Against such strong stance, petitioner clearly did not waive his
right to a preliminary investigation.
WHEREFORE, the instant petition is GRANTED. The
warrantless search conducted by the Philippine National Police on
13 January 1992 is declared illegal and the firearms seized during
the warrantless search cannot be used as evidence in an
proceeding against petitioner. Consequently, COMELEC Resolution
No. 92-0829 dated 6 April 1992 being violative of
the Constitution is SET ASIDE.
The temporary restraining order we issued on 5 May 1992 is
made permanent.
SO ORDERED.
(Aniag, Jr. v. Commission on Elections, G.R. No. 104961, [October 7,
|||

1994], 307 PHIL 437-461)

 [G.R. No. 167011. April 30, 2008.]

SPOUSES CARLOS S. ROMUALDEZ and ERLINDA R.

ROMUALDEZ, petitioners, vs. COMMISSION ON ELECTIONS
and DENNIS GARAY, respondents.

DECISION

CHICO-NAZARIO, J : p

This treats of the Petition for Review on Certiorari with a prayer

for the issuance of a Temporary Restraining Order and/or Writ of
Preliminary Injunction filed by petitioners Spouses Carlos S.
Romualdez and Erlinda R. Romualdez seeking to annul and set aside
the Resolutions, dated 11 June 2004 1 and 27 January 2005 2 of the
Commission on Elections (COMELEC) in E.O. Case No. 2000-36. In the
Resolution of 11 June 2004, the COMELEC En Banc directed the Law
Department to file the appropriate Information with the proper court
against petitioners Carlos S. Romualdez and Erlinda Romualdez for
violation of Section 10 (g) and (j) 3 in relation to Section 45
(j) 4 of Republic Act No. 8189, otherwise known as The Voter's
Registration Act of 1996. 5 Petitioners' Motion for Reconsideration
thereon was denied.
The factual antecedents leading to the instant Petition are
presented hereunder:
On 12 July 2000, private respondent Dennis Garay, along with
Angelino Apostol 6 filed a Complaint-Affidavit 7 with the COMELEC thru
the Office of the Election Officer in Burauen, Leyte, charging
petitioners with violation of Section 261 (y) (2) 8 and Section 261 (y)
(5) 9 of the Omnibus Election Code, similarly referred to asBatas
Pambansa Blg. 881; and Section 12 10 of Republic Act No. 8189.
Private respondent deposed, inter alia, that: petitioners are of
legal ages and residents of 113 Mariposa Loop, Mariposa Street,
Bagong Lipunan ng Crame, Quezon City; on 9 May 2000 and 11 May
2000, petitioners Carlos S. Romualdez and Erlinda R. Romualdez,
applied for registration as new voters with the Office of the Election
Officer of Burauen, Leyte, as evidenced by Voter Registration Record
Nos. 42454095 and 07902952, respectively; in their sworn
applications, petitioners made false and untruthful representations in
violation of Section 10 11 of Republic Act No. 8189, by indicating therein
that they are residents of 935 San Jose Street, Burauen, Leyte, when
in truth and in fact, they were and still are residents of 113 Mariposa
Loop, Mariposa Street, Bagong Lipunan ng Crame, Quezon City, and
registered voters of Barangay Bagong Lipunan ng Crame, District IV,
Quezon City, Precinct No. 4419-A, as evidenced by Voter Registration
Record Nos. 26195824 and 26195823; and that petitioners, knowing
fully well said truth, intentionally and willfully, did not fill the blank
spaces in said applications corresponding to the length of time which
they have resided in Burauen, Leyte. In fine, private respondent
charged petitioners, to wit:
Respondent-spouses, Carlos Sison Romualdez and Erlinda
Reyes Romualdez committed and consummated election offenses
in violation of our election laws, specifically, Sec. 261, paragraph
(y), subparagraph (2), for knowingly making any false or untruthful
statements relative to any data or information required in the
application for registration, and of Sec. 261, paragraph (y),
subparagraph (5), committed by any person who, being a
registered voter, registers anew without filing an application for
cancellation of his previous registration, both of the Omnibus
Election Code (BP Blg. 881), and of Sec. 12, RA 8189 (Voter
Registration Act) for failure to apply for transfer of registration
records due to change of residence to another city or
municipality." 12
The Complaint-Affidavit contained a prayer that a preliminary
investigation be conducted by the COMELEC, and if the evidence so
warrants, the corresponding Information against petitioners be filed
before the Regional Trial Court (RTC) for the prosecution of the same.
Petitioners filed a Joint Counter-Affidavit with Motion to
Dismiss 13 dated 2 April 2001. They contended therein that they did not
make any false or untruthful statements in their application for
registration. They avowed that they intended to reside in Burauen,
Leyte, since the year 1989. On 9 May 2000, they took actual residence
in Burauen, Leyte, by leasing for five (5) years, the house of Juanito
and Fe Renomeron at No. 935, San Jose Street in Burauen, Leyte. On
even date, the Barangay District III Council of Burauen passed a
Resolution of Welcome, expressing therein its gratitude and
appreciation to petitioner Carlos S. Romualdez for choosing the
Barangay as his official residence. 14
On 28 November 2003, Atty. Maria Norina S. Tangaro-Casingal,
COMELEC Investigating Officer, issued a Resolution, recommending to
the COMELEC Law Department (Investigation and Prosecution
Division), the filing of the appropriate Information against petitioners,
disposing, thus:
PREMISES CONSIDERED, the Law Department (Investigation
and Prosecution Division), RECOMMENDS to file the necessary
information against Carlos Sison Romualdez before the proper
 Regional Trial Court for violation of Section 10 (g) and (j) in
relation to Section 45 (j) of Republic Act 8189 and to authorize the
Director IV of the Law Department to designate a Comelec
Prosecutor to handle the prosecution of the case with the duty to
submit periodic report after every hearing of the case. 15
On 11 June 2004, the COMELEC En Banc found no reason to
depart from the recommendatory Resolution of 28 November 2003, and
ordered, viz.:
WHEREFORE, premises considered, the Law Department is
hereby directed to file the appropriate information with the
proper court against respondents CARLOS S. ROMUALDEZ AND
ERLINDA ROMUALDEZ for violation of Section 10 (g) and (j) in
relation to Section 45 (j) of the Republic Act No. 8189. 16
Petitioners filed a Motion for Reconsideration thereon.
Acting on the Motion, the COMELEC found no cogent reason to
disturb the assailed En Banc Resolution of 11 June
2004, 17 rationalizing, thus:
However, perusal of the records reveal (sic) that the
arguments and issues raised in the Motion for Reconsideration are
merely a rehash of the arguments advanced by the Respondents in
[their] Memorandum received by the Law Department on 17 April
2001, the same [w]as already considered by the Investigating
Officer and was discussed in her recommendation which
eventually was made as the basis for the En Banc's resolution.
As aptly observed by the Investigating Officer, the filing of
request for the cancellation and transfer of Voting Registration
Record does not automatically cancel the registration records.
The fact remains that at the time of application for registration
as new voter of the herein Respondents on May 9 and 11, 2001 in
the Office of Election Officer of Burauen, Leyte their registration
in Barangay 4419-A, Barangay Bagong Lipunan ng Crame Quezon
City was still valid and subsisting. 18
On 12 January 2006, Alioden D. Dalaig, Director IV, Law
Department of the COMELEC filed with the RTC, Burauen, Leyte,
separate Informations against petitioner Carlos S. Romualdez 19 for
violation of Section 10 (g), in relation to Section 45 (j) of Republic Act
No. 8189, and against petitioner Erlinda R. Romualdez 20 for violation of
Section 10 (g), in relation to Section 45 (j) of Republic Act No. 8189,
subsequently docketed as Crim. Case No. BN-06-03-4185 and Crim.
Case No. BN-06-03-4183, respectively. Moreover, separate Informations
for violation of Section 10 (j), in relation to Section 45 (j) of Republic
Act No. 8189 were filed against petitioners. 21
 Hence, petitioners come to us via the instant Petition, submitting
the following arguments:
I
RESPONDENT COMMISSION ON ELECTIONS GRAVELY ABUSED ITS
DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF ITS
JURISDICTION; and
II
COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT
PREMISED ITS RESOLUTION ON A MISAPPREHENSION OF FACTS
AND FAILED TO CONSIDER CERTAIN RELEVANT FACTS THAT
WOULD JUSTIFY A DIFFERENT CONCLUSION. 22
On 4 May 2006, petitioners filed a Motion Reiterating Prayer for
Issuance of Writ of Preliminary Injunction and to Cite for Indirect
Contempt, 23 alleging that two separate Informations, both dated 12
January 2006, were filed with the RTC by the COMELEC against
petitioner Carlos S. Romualdez for violation of Section 10 (j), in relation
to Section 45 (j) of Republic Act No. 8189, in Criminal Case No. BN-06-
03-9184; and for violation of Section 10 (g), in relation to Section 45 (j)
of Republic Act No. 8189, in Criminal Case No. BN-06-03-9185.
Similarly, the Motion alleged that the COMELEC filed with the RTC, two
separate Informations, both dated 12 January 2006, against petitioner
Erlinda R. Romualdez, charging her with the same offenses as those
charged against petitioner Carlos S. Romualdez, and thereafter,
docketed as Criminal Case No. BN-06-03-9182, and No. BN-06-03-9183.
On 20 June 2006, this Court issued a Resolution 24 denying for
lack of merit petitioners' Motion Reiterating Prayer for Issuance of Writ
of Preliminary Injunction and to Cite for Indirect Contempt.
We shall now resolve, in seriatim, the arguments raised by
petitioners.
Petitioners contend that the election offenses for which they are
charged by private respondent are entirely different from those which
they stand to be accused of before the RTC by the COMELEC.
According to petitioners, private respondent's complaint charged them
for allegedly violating, to wit: 1) Section 261 (y) (2) and Section 261 (y)
(5) of the Omnibus Election Code, and 2) Section 12 of the Voter's
Registration Act; however, the COMELEC En Banc directed in the
assailed Resolutions, that they be charged for violations of Section 10
(g) and (j), in relation to Section 45 (j) of the Voter's Registration Act.
Essentially, petitioners are of the view that they were not accorded
due process of law. Specifically, their right to refute or submit
documentary evidence against the new charges which COMELEC
ordered to be filed against them. Moreover, petitioners insist that
Section 45 (j) of the Voter's Registration Act is vague as it does not
refer to a definite provision of the law, the violation of which would
constitute an election offense; hence, it runs contrary to Section 14
(1) 25 and Section 14 (2), 26 Article III of the 1987 Constitution.
We are not persuaded.
First. The Complaint-Affidavit filed by private respondent with the
COMELEC is couched in a language which embraces the allegations
necessary to support the charge for violation of Section 10 (g) and (j),
in relation to Section 45 (j) of Republic Act No. 8189.
A reading of the relevant laws is in order, thus:
Section 10 (g) and Section 10 (j) of Republic Act No. 8189, provide
as follows:
SEC. 10. Registration of Voters. — A qualified voter shall be
registered in the permanent list of voters in a precinct of the city
or municipality wherein he resides to be able to vote in any
election. To register as a voter, he shall personally accomplish an
application form for registration as prescribed by the Commission
in three (3) copies before the Election Officer on any date during
office hours after having acquired the qualifications of a voter.
The application shall contain the following data:
xxx xxx xxx
(g) Periods of residence in the Philippines and in the place of
registration;
xxx xxx xxx
(j) A statement that the application is not a registered voter
of any precinct;
The application for registration shall contain three (3)
specimen signatures of the applicant, clear and legible rolled
prints of his left and right thumbprints, with four identification size
copies of his latest photograph, attached thereto, to be taken at
the expense of the Commission.
Before the applicant accomplishes his application for
registration, the Election Officer shall inform him of the
qualifications and disqualifications prescribed by law for a voter,
and thereafter, see to it that the accomplished application
contains all the data therein required and that the applicant's
specimen signatures, fingerprints, and photographs are properly
affixed in all copies of the voter's application.
Moreover, Section 45 (j) of the same Act, recites, thus:
SEC. 45. Election Offense. — The following shall be
considered election offenses under this Act:
xxx xxx xxx
 (j) Violation of any of the provisions of this Act.
Significantly, the allegations in the Complaint-Affidavit which was
filed with the Law Department of the COMELEC, support the charge
directed by the COMELECEn Banc to be filed against petitioners with
the RTC. Even a mere perusal of the Complaint-Affidavit would readily
show that Section 10 of Republic Act No. 8189 was specifically
mentioned therein. On the matter of the acts covered by Section 10 (g)
and (j), the Complaint-Affidavit, spells out the following allegations, to
wit:
5. Respondent-spouses made false and untruthful representations
in their applications (Annexes "B" and "C") in violation of the
requirements of Section 10, RA 8189 (The Voter's Registration
Act):
5.1 Respondent-spouses, in their sworn applications
(Annexes "B" and "C", claimed to be residents of 935
San Jose [S]treet, Burauen, Leyte, when in truth and in
fact, they were and still are residents of 113 Mariposa
Loop, Mariposa [S]treet, Bagong Lipunan ng Crame,
Quezon City and registered voters of Barangay Bagong
Lipunan ng Crame, District IV, Quezon City, Precinct No.
4419-A, a copy of the Certification issued by Hon.
Emmanuel V. Gozon, Punong Barangay, Bagong Lipunan
ng Crame, Quezon City is hereto attached and made an
integral part hereof, as Annex "D";
5.2 Respondent-spouses knowing fully well said truth,
intentionally and willfully, did not fill the blank spaces
in their applications (Annexes "B" and "C")
corresponding to the length of time they have resided in
Burauen, Leyte;
6. Respondent-spouses, in (sic) all intents and purposes, were and
still are residents and registered voters of Quezon City, as
evidenced by Voter Registration Record Nos. 26195824 and
26195823, respectively; photocopies of which are hereto
attached as Annexes "E" and "F"[.] Likewise, attached is a
"Certification" (Annex "G") of Ms. Evelyn B. Bautista, Officer-
in-Charge of the Office of the Election Officer, Fourth District,
Quezon City, dated May 31, 2000, together with a certified
copy of the computer print-out of the list of voters of Precinct
No. 4419-A (Annex "G-1") containing the names of voters
Carlos Romualdez and Erlinda Reyes Romualdez. The
Certification reads as follows:
"THIS IS TO CERTIFY that as per office record MR.
CARLOS ROMUALDEZ and MS. ERLINDA REYES
ROMUALDEZ are registered voters of Barangay Bagong
Lipunan ng Crame, District IV, Quezon City, Precinct
 Number 4419A with voters affidavit serial nos.
26195824 and 26195823, respectively.
This certification is issued for whatever legal
purpose it may serve."
7. Respondent-spouses, registered as new voters of the
Municipality of Burauen, Leyte, [in spite of] the fact that they
were and still are, registered voters of Quezon City as early
as June 22, 1997;
7.1 That, Double Registration is an election offense.
A person qualified as a voter is only allowed to register
once.
If a person registers anew as a voter in spite of a
subsisting registration, the new application for
registration will be disapproved. The registrant is also
liable not only for an election offense of double
registration, but also for another election offense of
knowingly making any false or untruthful statement
relative to any data or information required in the
application for registration.
In fact, when a person applies for registration as a
voter, he or she fills up a Voter Registration Record form
in his or her own handwriting, which contains a
Certification which reads:
"I do solemnly swear that the above statements
regarding my person are true and correct; that I
possess all the qualifications and none of the
disqualifications of a voter; that the thumbprints,
specimen signatures and photographs appearing herein
are mine; and that I am not registered as a voter in any
other precinct." 27
Petitioners cannot be said to have been denied due process on
the claim that the election offenses charged against them by private
respondent are entirely different from those for which they stand to be
accused of before the RTC, as charged by the COMELEC. In the first
place, there appears to be no incongruity between the charges as
contained in the Complaint-Affidavit and the Informations filed before
the RTC, notwithstanding the denomination by private respondent of
the alleged violations to be covered by Section 261 (y) (2) and Section
261 (y) (5) of the Omnibus Election Code and Section 12 of Republic
Act No. 8189. Evidently, the Informations directed to be filed by the
COMELEC against petitioners, and which were, in fact, filed with the
RTC, were based on the same set of facts as originally alleged in the
private respondent's Complaint-Affidavit.
Petitioners buttress their claim of lack of due process by relying
on the case of Lacson v. Executive
Secretary. 28 Citing Lacson, petitioners argue that the real nature of
the criminal charge is determined by the actual recital of facts in the
Complaint or Information; and that the object of such written
accusations was to furnish the accused with such a description of the
charge against him, as will enable him to make his defense. Let it be
said that, in Lacson, this court resolved the issue of whether under the
allegations in the subject Informations therein, it is the Sandiganbayan
or the Regional Trial Court which has jurisdiction over the multiple
murder case against therein petitioner and intervenors. In Lacson, we
underscored the elementary rule that the jurisdiction of a court is
determined by the allegations in the Complaint or Information, and not
by the evidence presented by the parties at the trial. 29 Indeed,
in Lacson, we articulated that the real nature of the criminal charge is
determined not from the caption or preamble of the Information nor
from the specification of the provision of law alleged to have been
violated, they being conclusions of law, but by the actual recital of
facts in the Complaint or Information. 30
Petitioners' reliance on Lacson, however, does not support their
claim of lack of due process because, as we have said, the charges
contained in private respondent's Complaint-Affidavit and the charges
as directed by the COMELEC to be filed are based on the same set of
facts. In fact, the nature of the criminal charges in private
respondent's Complaint-Affidavit and that of the charges contained in
the Informations filed with the RTC, pursuant to the COMELEC
Resolution En Banc are the same, such that, petitioners cannot claim
that they were not able to refute or submit documentary evidence
against the charges that the COMELEC filed with the RTC. Petitioners
were afforded due process because they were granted the opportunity
to refute the allegations in private respondent's Complaint-Affidavit.
On 2 April 2001, in opposition to the Complaint-Affidavit, petitioners
filed a Joint Counter-Affidavit with Motion to Dismiss with the Law
Department of the COMELEC. They similarly filed a Memorandum
before the said body. Finding that due process was not dispensed with
under the circumstances in the case at bar, we agree with the stance
of the Office of the Solicitor General that petitioners were reasonably
apprised of the nature and description of the charges against them. It
likewise bears stressing that preliminary investigations were
conducted whereby petitioners were informed of the complaint and of
the evidence submitted against them. They were given the opportunity
to adduce controverting evidence for their defense. In all these stages,
petitioners actively participated.
The instant case calls to our minds Orquinaza v.
People, 31 wherein the concerned police officer therein designated the
offense charged as sexual harassment; but, the prosecutor found that
there was no transgression of the anti-sexual harassment law, and
instead, filed an Information charging therein petitioner with acts of
lasciviousness. On a claim that there was deprivation of due process,
therein petitioner argued that the Information for acts of
lasciviousness was void as the preliminary investigation conducted
was for sexual harassment. The court held that the designation by the
police officer of the offense is not conclusive as it is within the
competence of the prosecutor to assess the evidence submitted and
determine therefrom the appropriate offense to be charged.
Accordingly, the court pronounced that the complaint contained
all the allegations to support the charge of acts of lasciviousness
under the Revised Penal Code; hence, the conduct of another
preliminary investigation for the offense of acts of lasciviousness
would be a futile exercise because the complainant would only be
presenting the same facts and evidence which have already been
studied by the prosecutor. 32 The court frowns upon such superfluity
which only serves to delay the prosecution and disposition of the
criminal complaint. 33
Second. Petitioners would have this court declare Section 45 (j)
of Republic Act No. 8189 vague, on the ground that it contravenes the
fair notice requirement of the 1987 Constitution, in particular, Section
14 (1) and Section 14 (2), Article III of thereof. Petitioners submit that
Section 45 (j) of Republic Act No. 8189 makes no reference to a
definite provision of the law, the violation of which would constitute an
election offense.
We are not convinced.
The void-for-vagueness doctrine holds that a law is facially invalid
if men of common intelligence must necessarily guess at its meaning
and differ as to its application. 34 However, this Court has imposed
certain limitations by which a criminal statute, as in the challenged
law at bar, may be scrutinized. This Court has declared that facial
invalidation 35 or an "on-its-face" invalidation of criminal statutes is
not appropriate. 36 We have so enunciated in no uncertain terms
inRomualdez v. Sandiganbayan, 37 thus:
In sum, the doctrines of strict scrutiny, overbreadth, and
vagueness are analytical tools developed for testing "on their
faces" statutes in free speech cases or, as they are called in
American law, First Amendment cases. They cannot be made to do
service when what is involved is a criminal statute. With respect to
such statute, the established rule is that 'one to whom application
of a statute is constitutional will not be heard to attack the statute
on the ground that impliedly it might also be taken as applying to
other persons or other situations in which its application might be
 unconstitutional.' As has been pointed out, 'vagueness challenges
in the First Amendment context, like overbreadth challenges
typically produce facial invalidation, while statutes found vague as
a matter of due process typically are invalidated [only] 'as applied'
to a particular defendant.'" (underscoring supplied)
"To this date, the Court has not declared any penal law
unconstitutional on the ground of ambiguity." While mentioned in
passing in some cases, the void-for-vagueness concept has yet to
find direct application in our jurisdiction. In Yu Cong Eng v.
Trinidad, the Bookkeeping Act was found unconstitutional because
it violated the equal protection clause, not because it was
vague. Adiong v. Comelec decreed as void a mere Comelec
Resolution, not a statute. Finally, Santiago v. Comelec held that a
portion of RA 6735 was unconstitutional because of undue
delegation of legislative powers, not because of vagueness.
Indeed, an "on-its-face" invalidation of criminal statutes
would result in a mass acquittal of parties whose cases may not
have even reached the courts. Such invalidation would constitute a
departure from the usual requirement of "actual case and
controversy" and permit decisions to be made in a sterile abstract
context having no factual concreteness. In Younger v. Harris, this
evil was aptly pointed out by the U.S. Supreme Court in these
words:
"[T]he task of analyzing a proposed statute, pinpointing its
deficiencies, and requiring correction of these deficiencies before
the statute is put into effect, is rarely if ever an appropriate task
for the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the
required line-by-line analysis of detailed statutes, . . . ordinarily
results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided."
For this reason, generally disfavored is an on-its-face
invalidation of statutes, described as a "manifestly strong
medicine" to be employed "sparingly and only as a last resort." In
determining the constitutionality of a statute, therefore, its
provisions that have allegedly been violated must be examined in
the light of the conduct with which the defendant has been
charged. (Emphasis supplied.)
At the outset, we declare that under these terms, the opinions of
the dissent which seek to bring to the fore the purported ambiguities
of a long list of provisions in Republic Act No. 8189 can be deemed as
a facial challenge. An appropriate "as applied" challenge in the instant
Petition should be limited only to Section 45 (j) in relation to Sections
10 (g) and (j) of Republic Act No. 8189 — the provisions upon which
petitioners are charged. An expanded examination of the law covering
provisions which are alien to petitioners' case would be antagonistic
to the rudiment that for judicial review to be exercised, there must be
an existing case or controversy that is appropriate or ripe for
determination, and not conjectural or anticipatory.
We further quote the relevant ruling in David v. Arroyo on the
proscription anent a facial challenge: 38
Moreover, the overbreadth doctrine is not intended for testing
the validity of a law that "reflects legitimate state interest in
maintaining comprehensive control over harmful, constitutionally
unprotected conduct." Undoubtedly, lawless violence, insurrection
and rebellion are considered "harmful" and "constitutionally
unprotected conduct." In Broadrick v. Oklahoma, it was held:
It remains a matter of no little difficulty to determine when a
law may properly be held void on its face and when such summary
action is inappropriate. But the plain import of our cases is, at the
very least, that facial overbreadth adjudication is an exception to
our traditional rules of practice and that its function, a limited one
at the outset, attenuates as the otherwise unprotected behavior
that it forbids the State to sanction moves from pure speech
toward conductand that conduct even if expressive falls within the
scope of otherwise valid criminal laws that reflect legitimate state
interests in maintaining comprehensive controls over harmful,
constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases
involving statutes which, by their terms, seek to regulate only
"spoken words" and again, that "overbreadth claims, if entertained
at all, have been curtailed when invoked against ordinary criminal
laws that are sought to be applied to protected conduct." Here, the
incontrovertible fact remains that PP 1017 pertains to a spectrum
of conduct, not free speech, which is manifestly subject to state
regulation.
Second, facial invalidation of laws is considered as
"manifestly strong medicine", to be used "sparingly and only as a
last resort", and is "generally disfavored"; The reason for this is
obvious. Embedded in the traditional rules governing constitutional
adjudication is the principle that a person to whom a law may be
applied will not be heard to challenge a law on the ground that it
may conceivably be applied unconstitutionally to others, i.e., in
other situations not before the Court. A writer and scholar in
Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is
that it marks an exception to some of the usual rules of
constitutional litigation. Ordinarily, a particular litigant claims that
a statute is unconstitutional as applied to him or her; if the litigant
 prevails, the courts carve away the unconstitutional aspects of the
law by invalidating its improper applications on a case to case
basis. Moreover, challengers to a law are not permitted to raise the
rights of third parties and can only assert their own interests. In
overbreadth analysis, those rules give way; challenges are
permitted to raise the rights of third parties; and the court
invalidates the entire statute "on its face", not merely "as applied
for" so that the overbroad law becomes unenforceable until a
properly authorized court construes it more narrowly. The factor
that motivates courts to depart from the normal adjudicatory rules
is the concern with the "chilling"; deterrent effect of the overbroad
statute on third parties not courageous enough to bring suit. The
Court assumes that an overbroad laws "very existence may cause
others not before the court to refrain from constitutionally
protected speech or expression." An overbreadth ruling is designed
to remove that deterrent effect on the speech of those third
parties.
In other words, a facial challenge using the overbreadth
doctrine will require the Court to examine PP 1017 and pinpoint its
flaws and defects, not on the basis of its actual operation to
petitioners, but on the assumption or prediction that its very
existence may cause others not before the Court to refrain from
constitutionally protected speech or expression.
xxx xxx xxx
And third, a facial challenge on the ground of overbreadth is
the most difficult challenge to mount successfully, since the
challenger must establish that there can be no instance when the
assailed law may be valid. Here, petitioners did not even attempt
to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the
ground of vagueness. This, too, is unwarranted.
Related to the "overbreadth" doctrine is the "void for
vagueness doctrine" which holds that "a law is facially invalid if
men of common intelligence must necessarily guess at its
meaning and differ as to its application." It is subject to the same
principles governing overbreadth doctrine. For one, it is also an
analytical tool for testing "on their faces" statutes in free speech
cases. And like overbreadth, it is said that a litigant may challenge
a statute on its face only if it is vague in all its possible
applications.
Be that as it may, the test in determining whether a criminal
statute is void for uncertainty is whether the language conveys a
sufficiently definite warning as to the proscribed conduct when
measured by common understanding and practice. 39 This Court has
similarly stressed that the vagueness doctrine merely requires a
reasonable degree of certainty for the statute to be upheld — not
absolute precision or mathematical exactitude. 40
As structured, Section 45 41 of Republic Act No. 8189 makes a
recital of election offenses under the same Act. Section 45 (j) is,
without doubt, crystal in its specification that a violation of any of the
provisions of Republic Act No. 8189 is an election offense. The
language of Section 45 (j) is precise. The challenged provision renders
itself to no other interpretation. A reading of the challenged provision
involves no guesswork. We do not see herein an uncertainty that
makes the same vague.
Notably, herein petitioners do not cite a word in the challenged
provision, the import or meaning of which they do not understand. This
is in stark contrast to the case of Estrada v. Sandiganbayan 42 where
therein petitioner sought for statutory definition of particular words in
the challenged statute. Even then, the Court in Estrada rejected the
argument.
This Court reasoned:
The rationalization seems to us to be pure sophistry. A
statute is not rendered uncertain and void merely because general
terms are used therein, or because of the employment of terms
without defining them; much less do we have to define every word
we use. Besides, there is no positive constitutional or statutory
command requiring the legislature to define each and every word
in an enactment. Congress is not restricted in the form of
expression of its will, and its inability to so define the words
employed in a statute will not necessarily result in the vagueness
or ambiguity of the law so long as the legislative will is clear, or at
least, can be gathered from the whole act, which is distinctly
expressed in the Plunder Law."
Moreover, it is a well-settled principle of legal hermeneutics
that words of a statute will be interpreted in their natural, plain
and ordinary acceptation and signification, unless it is evident that
the legislature intended a technical or special legal meaning to
those words. The intention of the lawmakers who are, ordinarily,
untrained philologists and lexicographers to use statutory
phraseology in such a manner is always presumed.
Perforce, this Court has underlined that an act will not be held
invalid merely because it might have been more explicit in its
wordings or detailed in its provisions, especially where, because of the
nature of the act, it would be impossible to provide all the details in
advance as in all other statutes. 43
The evident intent of the legislature in including in the catena of
election offenses the violation of any of the provisions of Republic Act
No. 8189, is to subsume as punishable, not only the commission of
proscribed acts, but also the omission of acts enjoined to be observed.
On this score, the declared policy of Republic Act No. 8189 is
illuminating. The law articulates the policy of the State to systematize
the present method of registration in order to establish a clean,
complete, permanent and updated list of voters. A reading of Section
45 (j) conjointly with the provisions upon which petitioners are
charged, i.e., Sections 10 (g) and (j) would reveal that the matters that
are required to be set forth under the aforesaid sections are crucial to
the achievement of a clean, complete, permanent and updated list of
voters. The factual information required by the law is sought not for
mere embellishment.
There is a definitive governmental purpose when the law requires
that such facts should be set forth in the application. The periods of
residence in the Philippines and in the place of registration delve into
the matter of residency, a requisite which a voter must satisfy to be
deemed a qualified voter and registered in the permanent list of voters
in a precinct of the city or municipality wherein he resides. Of even
rationality exists in the case of the requirement in Section 10 (j),
mandating that the applicant should state that he/she is not a
registered voter of any precinct. Multiple voting by so-called flying
voters are glaring anomalies which this country strives to defeat. The
requirement that such facts as required by Section 10 (g) and Section
10 (j) be stated in the voter's application form for registration is
directly relevant to the right of suffrage, which the State has the right
to regulate.
It is the opportune time to allude to the case of People v.
Gatchalian 44 where the therein assailed law contains a similar
provision as herein assailed before us. Republic Act No. 602 also
penalizes any person who willfully violates any of the provisions of the
Act. The Court dismissed the challenged, and declared the provision
constitutional. The Court in Gatchalian read the challenged provision,
"any of the provisions of this [A]ct" conjointly with Section 3 thereof
which was the pertinent portion of the law upon which therein
accused was prosecuted. Gatchalian considered the terms as all-
embracing; hence, the same must include what is enjoined in Section
3 thereof which embodies the very fundamental purpose for which the
law has been adopted. This Court ruled that the law by legislative fiat
intends to punish not only those expressly declared unlawful but even
those not so declared but are clearly enjoined to be observed to carry
out the fundamental purpose of the law. 45 Gatchalian remains good
law, and stands unchallenged.
 It also does not escape the mind of this Court that the
phraseology in Section 45 (j) is employed by Congress in a number of
our laws. 46 These provisions have not been declared unconstitutional.
Moreover, every statute has in its favor the presumption of
validity. 47 To justify its nullification, there must be a clear and
unequivocal breach of theConstitution, and not one that is doubtful,
speculative or argumentative. 48 We hold that petitioners failed to
overcome the heavy presumption in favor of the law. Its
constitutionality must be upheld in the absence of substantial grounds
for overthrowing the same.
A salient point. Courts will refrain from touching upon the issue of
constitutionality unless it is truly unavoidable and is the very lis mota.
In the case at bar, thelis mota is the alleged grave abuse of discretion
of the COMELEC in finding probable cause for the filing of criminal
charges against petitioners.
Third. Petitioners maintain that the COMELEC En Banc, premised
its finding on a misapprehension of facts, and committed grave abuse
of discretion in directing the filing of Informations against them with
the RTC.
We are once again unimpressed.
The constitutional grant of prosecutorial power in the COMELEC
finds statutory expression under Section 265 49 of Batas
Pambansa Blg. 881, otherwise known as the Omnibus Election
Code. 50 The task of the COMELEC whenever any election offense
charge is filed before it is to conduct the preliminary investigation of
the case, and make a determination of probable cause. Under Section
8 (b), Rule 34 of the COMELEC Rules of Procedure, the investigating
officer makes a determination of whether there is a reasonable ground
to believe that a crime has been committed. 51 In Baytan v.
COMELEC, 52 this Court, sufficiently elucidated on the matter of
probable cause in the prosecution of election offenses, viz.:
It is also well-settled that the finding of probable cause in
the prosecution of election offenses rests in the COMELEC's
sound discretion. The COMELEC exercises the constitutional
authority to investigate and, where appropriate, prosecute cases
for violation of election laws, including acts or omissions
constituting election frauds, offense and malpractices. Generally,
the Court will not interfere with such finding of the COMELEC
absent a clear showing of grave abuse of discretion. This
principle emanates from the COMELEC's exclusive power to
conduct preliminary investigation of all election offenses
punishable under the election laws and to prosecute the same,
except as may otherwise be provided by law. 53
 It is succinct that courts will not substitute the finding of
probable cause by the COMELEC in the absence of grave abuse of
discretion. The abuse of discretion must be so patent and gross as to
amount to an evasion of a positive duty or a virtual refusal to perform
a duty enjoined by law, or to act at all in contemplation of law as
where the power is exercised in an arbitrary and despotic manner by
reason of passion or hostility. 54
According to the COMELEC En Banc, the investigating officer, in
the case at bar, held that there was sufficient cause for the filing of
criminal charges against petitioners, and found no reason to depart
therefrom. Without question, on May 9 and 11 of 2001, petitioners
applied for registration as new voters with the Office of the Election
Officer of Burauen, Leyte, notwithstanding the existence of
petitioners' registration records as registered voters of Precinct No.
4419-A of Barangay Bagong Lipunan ng Crame, District IV, Quezon City.
The directive by the COMELEC which affirmed the Resolution 55 of 28
November 2000 of Investigating Officer Atty. Tangaro-Casingal does
not appear to be wanting in factual basis, such that a reasonably
prudent man would conclude that there exists probable cause to hold
petitioners for trial. Thus, in the aforesaid Resolution, the Investigating
Officer, found:
A violation therefore of Section 10 of Republic Act No. 8189 is
an election offense.
In the instant case, when respondents Carlos Romualdez and
Erlinda Romualdez filed their respective applications for
registration as new voters with the Office of the Election Officer of
Burauen, Leyte on May 9 and 11, 2001, respectively, they stated
under oath that they are not registered voters in other precinct
(VRR Nos. 42454095 and 07902941). However, contrary to their
statements, records show they are still registered voters of
Precinct No. 4419-A, barangay Bagong Lipunan ng Crame, District
IV, Quezon City, as per VRR Nos. 26195825 and 26195823. In other
words, respondents' registration records in Quezon City is (sic) still
in existence.
While it may be true that respondents had written the City
Election Officer of District IV, Quezon City for cancellation of their
voter's registration record as voter's(sic) therein, they cannot
presume that the same will be favorably acted upon. Besides, RA
8189 provides for the procedure in cases of transfer of residence
to another city/municipality which must be complied with, to wit:
"Section 12. Change of Residence to Another City or
Municipality. — Any registered voter who has transferred residence
to another city or municipality may apply with the Election Officer
of his new residence for the transfer of his registration records.
 The application for transfer of registration shall be subject to
the requirements of notice and hearing and the approval of the
Election Registration Board, in accordance with this Act. Upon
approval, of the application for transfer, and after notice of such
approval to the Election Officer of their former residence of the
voter, said Election Officer shall transmit by registered mail the
voter's registration record to the Election Officer of the voter's
new residence."
They cannot claim ignorance of the abovestated provision on
the procedure for transfer of registration records by reason of
transferred new residence to another municipality. Based on the
affidavit executed by one Eufemia S. Cotoner, she alleged that the
refusal of the Assistant Election Officer Ms. Estrella Perez to
accept the letter of respondents was due to improper procedure
because respondents should have filed the required request for
transfer with the Election Officer of Burauen, Leyte. Despite this
knowledge, however, they proceeded to register as new voters of
Burauen, Leyte, notwithstanding the existence of their previous
registrations in Quezon City.
In their subsequent affidavit of Transfer of Voters
Registration under Section 12 of Republic Act 8189, respondents
admitted that they erroneously filed an application as a new
voter (sic) with the office of the Election Officer of Burauen, Leyte,
by reason of an honest mistake, which they now desire to correct.
(underscoring ours).
Respondents lose sight of the fact that a statutory offense,
such as violation of election law, is mala prohibita. Proof of
criminal intent is not necessary. Good faith, ignorance or lack of
malice is beside the point. Commission of the act is sufficient. It is
the act itself that is punished.
xxx xxx xxx
In view of the foregoing, the Law Department respectfully
submits that there is probable cause to hold respondents Carlos
Romualdez and Erlinda Romualdez for trial in violation of Section
10(g) and (j) in relation to Section 45(j) of Republic Act No. 8189.
There is no doubt that they applied for registration as new voters
of Burauen, Leyte consciously, freely and voluntarily. 56
We take occasion to reiterate that the Constitution grants to the
COMELEC the power to prosecute cases or violations of election laws.
Article IX (C), Section 2 (6) of the 1987 Constitution, provides:
(6) File, upon a verified complaint, or on its own initiative,
petitions in court for inclusion or exclusion of voters; investigate
and where appropriate, prosecute cases or violations of election
laws, including acts or omissions constituting election frauds,
offenses, and malpractices.
 This power to prosecute necessarily involves the power to
determine who shall be prosecuted, and the corollary right to decide
whom not to prosecute. 57Evidently, must this power to prosecute also
include the right to determine under which laws prosecution will be
pursued. The courts cannot dictate the prosecution nor usurp its
discretionary powers. As a rule, courts cannot interfere with the
prosecutor's discretion and control of the criminal prosecution. 58 Its
rationale cannot be doubted. For the business of a court of justice is to
be an impartial tribunal, and not to get involved with the success or
failure of the prosecution to prosecute. 59Every now and then, the
prosecution may err in the selection of its strategies, but such errors
are not for neutral courts to rectify, any more than courts should
correct the blunders of the defense. 60
Fourth. In People v. Delgado, 61 this Court said that when the
COMELEC, through its duly authorized law officer, conducts the
preliminary investigation of an election offense and upon a prima
facie finding of a probable cause, files the Information in the proper
court, said court thereby acquires jurisdiction over the case.
Consequently, all the subsequent disposition of said case must be
subject to the approval of the court. The records show that
Informations charging petitioners with violation of Section 10 (g) and
(j), in relation to Section 45 (j) of Republic Act No. 8189 had been filed
with the RTC. The case must, thus, be allowed to take its due course.
It may be recalled that petitioners prayed for the issuance of a
Temporary Restraining Order or Writ of Preliminary Injunction before
this Court to restrain the COMELEC from executing its Resolutions of
11 June 2004 and 27 January 2005. In a Resolution dated 20 June
2006, this Court En Banc denied for lack of merit petitioners' Motion
Reiterating Prayer for Issuance of Writ of Preliminary Injunction and to
Cite for Indirect Contempt. Logically, the normal course of trial is
expected to have continued in the proceedings a quo.
WHEREFORE, the Petition is DENIED. The assailed Resolutions,
dated 11 June 2004 and 27 January 2005 of the COMELEC En Banc are
AFFIRMED. Costs against petitioners.
SO ORDERED.
(Spouses Romualdez v. Commission on Elections, G.R. No. 167011, [April
|||

30, 2008], 576 PHIL 357-470)

[G.R. No. 167011. December 11, 2008.]

 SPOUSES CARLOS S. ROMUALDEZ and ERLINDA
R. ROMUALDEZ, petitioners, vs. COMMISSION ON ELECTIONS
and DENNIS GARAY, respondents.

RESOLUTION

CHICO-NAZARIO, J : p

For resolution is the Motion for Reconsideration filed by petitioner

Spouses Carlos Romualdez and Erlinda Romualdez on 26 May 2008
from the Decision of this Court dated 30 April 2008, affirming the
Resolutions, dated 11 June 2004 and 27 January 2005 of the
COMELEC En Banc. TDCcAE

We find that petitioner has not raised substantially new grounds

to justify the reconsideration sought. Instead, petitioner presents
averments that are mere rehashes of arguments already considered by
the Court. There is, thus, no cogent reason to warrant a
reconsideration of this Court's Decision.
Similarly, we reject the contentions put forth by esteemed
colleagues Mr. Justice Dante O. Tinga in his Dissent, dated 2
September 2008, which are also mere reiterations of his earlier
dissent against the majority opinion. Mr. Justice Tinga's incessant
assertions proceed from the wrong premise. To be clear, this Court did
not intimate that penal statutes are beyond scrutiny. In our Decision,
dated 30 April 2008, this Court emphasized the critical limitations by
which a criminal statute may be challenged. We drew a lucid boundary
between an "on-its-face" invalidation and an "as applied" challenge.
Unfortunately, this is a distinction which Mr. Justice Tinga has refused
to understand. Let it be underscored that "on-its-face" invalidation of
penal statutes, as is sought to be done by petitioners in this case, may
not be allowed. Thus, we said:
The void-for-vagueness doctrine holds that a law is facially
invalid if men of common intelligence must necessarily guess at
its meaning and differ as to its application. However, this Court
has imposed certain limitations by which a criminal statute, as in
the challenged law at bar, may be scrutinized. This Court has
declared that facial invalidation or an "on-its-face" invalidation of
criminal statutes is not appropriate. We have so enunciated in no
uncertain terms in Romualdez v. Sandiganbayan, thus:
In sum, the doctrines of strict scrutiny, overbreadth, and
vagueness are analytical tools developed for testing "on their
faces" statutes in free speech cases or, as they are called in
American law, First Amendment cases. They cannot be made to
do service when what is involved is a criminal statute. With
respect to such statute, the established rule is that 'one to whom
application of a statute is constitutional will not be heard to
attack the statute on the ground that impliedly it might also be
taken as applying to other persons or other situations in which its
application might be unconstitutional'. As has been pointed out,
'vagueness challenges in the First Amendment context, like
overbreadth challenges typically produce facial invalidation,
while statutes found vague as a matter of due process typically
are invalidated [only] 'as applied' to a particular defendant.'"
(underscoring supplied) EDCcaS

"To this date, the Court has not declared any penal law
unconstitutional on the ground of ambiguity". While mentioned in
passing in some cases, the void-for-vagueness concept has yet to
find direct application in our jurisdiction. In Yu Cong Eng v.
Trinidad, the Bookkeeping Act was found unconstitutional
because it violated the equal protection clause, not because it
was vague. Adiong v. Comelec decreed as void a mere Comelec
Resolution, not a statute. Finally, Santiago v. Comelec held that a
portion of RA 6735 was unconstitutional because of undue
delegation of legislative powers, not because of vagueness.
Indeed, an "on-its-face" invalidation of criminal statutes
would result in a mass acquittal of parties whose cases may not
have even reached the courts. Such invalidation would constitute
a departure from the usual requirement of "actual case and
controversy" and permit decisions to be made in a sterile
abstract context having no factual concreteness. In Younger v.
Harris, this evil was aptly pointed out by the U.S. Supreme Court
in these words:
"[T]he task of analyzing a proposed statute, pinpointing its
deficiencies, and requiring correction of these deficiencies
before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary. The combination of the relative
remoteness of the controversy, the impact on the legislative
process of the relief sought, and above all the speculative and
amorphous nature of the required line-by-line analysis of detailed
statutes, . . . ordinarily results in a kind of case that is wholly
unsatisfactory for deciding constitutional questions, whichever
way they might be decided."
For this reason, generally disfavored is an on-its-face
invalidation of statutes, described as a "manifestly strong
medicine" to be employed "sparingly and only as a last resort." In
determining the constitutionality of a statute, therefore, its
provisions that have allegedly been violated must be examined in
the light of the conduct with which the defendant has been
charged. (Emphasis supplied.) 1
 Neither does the listing by Mr. Justice Tinga of what he condemns
as offenses under Republic Act No. 8189 convince this Court to
overturn its ruling. What is crucial in this case is the rule set in our
case books and precedents that a facial challenge is not the proper
avenue to challenge the statute under consideration. In our Decision
of 30 April 2008, we enunciated that "the opinions of the dissent which
seek to bring to the fore the purported ambiguities of a long list of
provisions inRepublic Act No. 8189 can be deemed as a facial
challenge." 2 On this matter, we held: acADIT

An appropriate "as applied" challenge in the instant Petition

should be limited only to Section 45 (j) in relation to Sections 10
(g) and (j) of Republic Act No. 8189— the provisions upon which
petitioners are charged. An expanded examination of the law
covering provisions which are alien to petitioners' case would be
antagonistic to the rudiment that for judicial review to be
exercised, there must be an existing case or controversy that is
appropriate or ripe for determination, and not conjectural or
anticipatory. 3
In conclusion, I reiterate that the doctrine embodied
in Romualdez and Estrada remains good law. The rule established in
our jurisdiction is, only statutes on free speech, religious freedom, and
other fundamental rights may be facially challenged. Under no case
may ordinary penal statutes be subjected to a facial challenge. The
rationale is obvious. If a facial challenge to a penal statute is
permitted, the prosecution of crimes may be hampered. No
prosecution would be possible. A strong criticism against employing a
facial challenge in the case of penal statutes, if the same is allowed,
would effectively go against the grain of the doctrinal requirement of
an existing and concrete controversy before judicial power may be
appropriately exercised. A facial challenge against a penal statute is,
at best, amorphous and speculative. It would, essentially, force the
court to consider third parties who are not before it. As I have said in
my opposition to the allowance of a facial challenge to attack penal
statutes, such a test will impair the State's ability to deal with crime.
If warranted, there would be nothing that can hinder an accused from
defeating the State's power to prosecute on a mere showing that, as
applied to third parties, the penal statute is vague or overbroad,
notwithstanding that the law is clear as applied to him.
As structured, Section 45 enumerates acts deemed election
offenses under Republic Act No. 8189. The evident intent of the
legislature in including in the catena of election offenses the violation
of any of the provisions of Republic Act No. 8189 is to subsume as
punishable, not only the commission of proscribed acts, but also the
omission of acts enjoined to be observed. On this score, the declared
policy of Republic Act No. 8189 is illuminating. The law articulates the
policy of the State to systematize the present method of registration in
order to establish a clean, complete, permanent and updated list of
voters.cCESaH

In People v. Gatchalian, the Court had the occasion to rule on the

validity of the provision of the Minimum Wage Law, which in like
manner speaks of a willful violation of "any of the provisions of this
Act". This Court upheld the assailed law, and in no uncertain terms
declared that the provision is all-embracing, and the same must
include what is enjoined in the Act which embodies the very
fundamental purpose for which the law has been adopted.
Finally, as the records would show, petitioners managed to set up
an intelligent defense against the informations filed below. By clearly
enunciating their defenses against the accusations hurled at them and
denying their commission thereof, petitioners' allegation of vagueness
must necessarily be rejected. Petitioners failed to overcome the heavy
presumption of constitutionality in favor of the law. The
constitutionality must prevail in the absence of substantial grounds for
overthrowing the same.
The phraseology in Section 45 (j) has been employed by Congress
in a number of laws which have not been declared unconstitutional: SEIacA

1) The Cooperative Code

Section 124 (4) of Republic Act No. 6938 reads:
"Any violation of any provision of this Code for which no
penalty is imposed shall be punished by imprisonment of not less
than six (6) months nor more than one (1) year and a fine of not
less than One Thousand Pesos (P1,000.00) or both at the
discretion of the Court."
2) The Indigenous Peoples Rights Act
Section 72 of Republic Act No. 8371 reads in part:
" Any person who commits violation of any of the provisions
of this Act, such as, but not limited to . . ."
3) The Retail Trade Liberalization Act
Section 12, Republic Act No. 8762, reads:
"Any person who would be found guilty of violation of any
provisions of this Act shall be punished by imprisonment of not
less than six (6) years and one (1) day but not more than eight (8)
years, and a fine of at least One Million (P1,000,000.00) but not
more than Twenty Million (P20,000,000.00).
For reasons so stated, we deny the Motion for Reconsideration.
 SO ORDERED.
(Spouses Romualdez v. Commission on Elections, G.R. No. 167011
|||

(Resolution), [December 11, 2008], 594 PHIL 305-343)

[G.R. No. 84818. December 18, 1989.]

PHILIPPINE COMMUNICATIONS SATELLITE

CORPORATION, petitioner, vs. JOSE LUIS A. ALCUAZ, as NTC
 Commissioner, and NATIONAL TELECOMMUNICATIONS
COMMISSION, respondents.

Rilloraza, Africa, De Ocampo & Africa for petitioner.

Victor de la Serna for respondent Alcuaz.

SYLLABUS

1. ADMINISTRATIVE LAW; REQUISITES OF A VALID DELEGATION

OF LEGISLATIVE POWER. — Fundamental is the rule that delegation of
legislative power may be sustained only upon the ground that some
standard for its exercise is provided and that the legislature in making
the delegation has prescribed the manner of the exercise of the
delegated power. Therefore, when the administrative agency
concerned, respondent NTC in this case, establishes a rate, its act
must both be non-confiscatory and must have been established in the
manner prescribed by the legislature; otherwise, in the absence of a
fixed standard, the delegation of power becomes unconstitutional.
2. ID.;RATE-FIXING POWER; STANDARDS REQUIRED; MAY BE
IMPLIED. — In case of a delegation of rate-fixing power, the only
standard which the legislature is required to prescribe for the
guidance of the administrative authority is that the rate be reasonable
and just. However, it has been held that even in the absence of an
express requirement as to reasonableness, this standard may be
implied. The inherent power and authority of the State, or its
authorized agent, to regulate the rates charged by public utilities
should be subject always to the requirement that the rates so fixed
shall be reasonable and just. A commission has no power to fix rates
which are unreasonable or to regulate them arbitrarily. This basic
requirement of reasonableness comprehends such rates which must
not be so low as to be confiscatory, or too high as to be oppressive.
What is a just and reasonable rate is not a question of formula but of
sound business judgment based upon the evidence; it is a question of
fact calling for the exercise of discretion, good sense, and a fair,
enlightened and independent judgment. In determining whether a rate
is confiscatory, it is essential also to consider the given situation,
requirements and opportunities of the utility. A method often employed
in determining reasonableness is the fair return upon the value of the
property to the public utility. Competition is also a very important
factor in determining the reasonableness of rates since a carrier is
allowed to make such rates as are necessary to meet competition.
(Mla. Railroad Co. vs. A.L. Ammon Trans. Co. Inc. 218 Phil. 900 (1920)
 3. ID.;ID.;INSTANCES WHEN THE SAME WAS CLASSIFIED AS
QUASI-JUDICIAL WHEN SAME WAS CLASSIFIED. — In Vigan Electric
Light Co.,Inc. vs. Public Service Commission,we made a categorical
classification as to when the rate-fixing power of administrative
bodies is quasi-judicial and when it is legislative, thus: "Moreover,
although the rule-making power end even the power to fix rates —
when such rules and/or rates are meant to apply to all enterprises of a
given kind throughout the Philippines — may partake of a legislative
character, such is not the nature of the order complained of. Indeed,
the same applies exclusively to petitioner herein. What is more, it is
predicated upon the finding of fact — based upon a report submitted
by the General Auditing Office — that petitioner is making a profit of
more than 12% of its invested capital, which is denied by petitioner.
Obviously, the latter is entitled to cross-examine the maker of said
report, and to introduce evidence to disprove the contents thereof
and/or explain or complement the same, as well as to refute the
conclusion drawn therefrom by the respondent. In other words, in
making said finding of fact, respondent performed a function partaking
of a quasi-judicial character, the valid exercise of which demands
previous notice and hearing." This rule was further explained in the
subsequent case of The Central Bank of the Philippines vs. Cloribel, et
al.to wit: "It is also clear from the authorities that where the function
of the administrative body is legislative, notice of hearing is not
required by due process of law (See Oppenheiner, Administrative Law,
2 Md. L.R. 185, 204, supra,where it is said: If the nature of the
administrative agency is essentially legislative, the requirements of
notice and hearing are not necessary. The validity of a rule of future
action which affects a group, if vested rights of liberty or property are
not involved, is not determined according to the same rules which
apply in the case of the direct application of a policy to a specific
individual) ...It is said in 73 C.J.S. Public Administrative Bodies and
Procedure, sec. 130, pages 452 and 453: Aside from statute, the
necessity of notice and hearing in an administrative proceeding
depends on the character of the proceeding and the circumstances
involved. In so far as generalization is possible in view of the great
variety of administrative proceedings, it may be stated as a general
rule that notice and hearing are not essential to the validity of
administrative action where the administrative body acts in the
exercise of executive, administrative, or legislative functions; but
where a public administrative body acts in a judicial or quasi-judicial
matter, and its acts are particular and immediate rather than general
and prospective, the person whose rights or property may be affected
by the action is entitled to notice and hearing.
 4. ID.;ID.;REQUIREMENTS OF NOTICE AND HEARING NECESSARY
EVEN IF THE ORDER IS TEMPORARY IN NATURE. — While respondents
may fix a temporary rate pending final determination of the
application of petitioner, such rate-fixing order, temporary though it
may be, is not exempt from the statutory procedural requirements of
notice and hearing, as well as the requirement of reasonableness.
Assuming that such power is vested in NTC, it may not exercise the
same in an arbitrary and confiscatory manner. Categorizing such an
order as temporary in nature does not perforce entail the applicability
of a different rule of statutory procedure than would otherwise be
applied to any other order on the same matter unless otherwise
provided by the applicable law. In the case at bar, the applicable
statutory provision is Section 16(c) of the Public Service Act which
provides: "Section 16. Proceedings of the Commission, upon notice
and hearing.— The Commission shall have power, upon proper notice
and hearing in accordance with the rules and provisions of this Act,
subject to the limitations and exceptions mentioned and saving
provisions to the contrary: (c) To fix and determine individual or joint
rates, ...which shall be imposed, observed and followed thereafter by
any public service; ...."
5. ID.;ID.;TEMPORARY RATE-FIXING ORDER; A FINAL
LEGISLATIVE ACT AS TO THE PERIOD DURING WHICH IT HAS TO
REMAIN IN FORCE. — The order requires the new reduced rates to be
made effective on a specified date. It becomes a final legislative act
as to the period during which it has to remain in force pending the
final determination of the case. An order of respondent NTC
prescribing reduced rates, even for a temporary period, could be
unjust, unreasonable or even confiscatory, especially if the rates are
unreasonably low, since the utility permanently loses its just revenue
during the prescribed period. In fact, such order is in effect final
insofar as the revenue during the period covered by the order is
concerned.
6. ID.;POWER TO REGULATE THE CONDUCT AND BUSINESS OF
PUBLIC UTILITIES; LIMITATION. — The rule is that the power of the
State to regulate the conduct and business of public utilities is limited
by the consideration that it is not the owner of the property of the
utility, or clothed with the general power of management incident to
ownership, since the private right of ownership to such property
remains and is not to be destroyed by the regulatory power. The power
to regulate is not the power to destroy useful and harmless
enterprises, but is the power to protect, foster, promote, preserve, and
control with due regard for the interest, first and foremost, of the
public, then of the utility and of its patrons. Any regulation, therefore,
which operates as an effective confiscation of private property or
 constitutes an arbitrary or unreasonable infringement of property
rights is void, because it is repugnant to the constitutional guaranties
of due process and equal protection of the laws.

DECISION

REGALADO,J : p

This case is posed as one of first impression in the sense that it

involves the public utility services of the petitioner Philippine
Communications Satellite Corporation (PHILCOMSAT, for short) which
is the only one rendering such services in the Philippines. cdrep

The petition before us seeks to annul and set aside an

Order 1 issued by respondent Commissioner Jose Luis Alcuaz of the
National Telecommunications Commission (hereafter, NTC), dated
September 2, 1988, which directs the provisional reduction of the
rates which may be charged by petitioner for certain specified lines of
its services by fifteen percent (15%) with the reservation to make
further reductions later, for being violative of the constitutional
prohibition against undue delegation of legislative power and a denial
of procedural, as well as substantive, due process of law. llcd

The antecedental facts as summarized by petitioner 2 are not in

dispute. By virtue of Republic Act No. 5514, PHILCOMSAT was granted
"a franchise to establish, construct, maintain and operate in the
Philippines, at such places as the grantee may select, station or
stations and associated equipment and facilities for international
satellite communications." Under this franchise, it was likewise
granted the authority to "construct and operate such ground facilities
as needed to deliver telecommunications services from the
communications satellite system and ground terminal or terminals."

Pursuant to said franchise, petitioner puts on record that it

undertook the following activities and established the following
installations:
1. In 1967, PHILCOMSAT established its provisional earth
station in Pinugay, Rizal.
2. In 1968, earth station standard "A" antenna (Pinugay I) was
established. Pinugay I provided direct satellite communication
links with the Pacific Ocean Region (the United States, Australia,
Canada, Hawaii, Guam, Korea, Thailand, China [PROC],New
Zealand and Brunei) thru the Pacific Ocean INTELSAT satellite.
 3. In 1971, a second earth station standard "A" antenna
(Pinugay II) was established. Pinugay II provided links with the
Indian Ocean Region (major cities in Europe, Middle East, Africa,
and other Asia Pacific countries operating within the region) thru
the Indian Ocean INTELSAT satellite.
4. In 1983, a third earth station standard "B" antenna
(Pinugay III) was established to temporarily assume the functions
of Pinugay I and then Pinugay II while they were being refurbished.
Pinugay III now serves as spare or reserved antenna for possible
contingencies.
5. In 1983, PHILCOMSAT constructed and installed a standard
"B" antenna at Clark Air Field, Pampanga as a television receive-
only earth station which provides the U.S. Military bases with a 24-
hour television service.
6. In 1989, petitioner completed the installation of a third
standard "A" earth station (Pinugay IV)to take over the links in
Pinugay I due to obsolescence. 3
By designation of the Republic of the Philippines, the petitioner is
also the sole signatory for the Philippines in the Agreement and the
Operating Agreement relating to the International Telecommunications
Satellite Organization (INTELSAT) of 115 member nations, as well as in
the Convention and the Operating Agreement of the International
Maritime Satellite Organization (INMARSAT) of 53 member nations,
which two global commercial telecommunications satellite
corporations were collectively established by various states in line
with the principles set forth in Resolution 1721 (XVI) of the General
Assembly of the United Nations. llcd

Since 1968, the petitioner has been leasing its satellite circuits
to:
1. Philippine Long Distance Telephone Company;
2. Philippine Global Communications, Inc.;
3. Eastern Telecommunications Phils.,Inc.;
4. Globe Mackay Cable and Radio Corp. ITT; and
5. Capitol Wireless, Inc.
or their predecessors-in-interest. The satellite services thus provided
by petitioner enable said international carriers to serve the public with
indispensable communication services, such as overseas telephone,
telex, facsimile, telegrams, high speed data, live television in full color,
and television standard conversion from European to American or vice
versa.
 Under Section 5 of Republic Act No. 5514, petitioner was exempt
from the jurisdiction of the then Public Service Commission, now
respondent NTC. However, pursuant to Executive Order No. 196 issued
on June 17, 1987, petitioner was placed under the jurisdiction, control
and regulation of respondent NTC, including all its facilities and
services and the fixing of rates. Implementing said Executive Order
No. 196, respondents required petitioner to apply for the requisite
certificate of public convenience and necessity covering its facilities
and the services it renders, as well as the corresponding authority to
charge rates therefor. prcd

Consequently, under date of September 9, 1987, petitioner filed

with respondent NTC an application 4 for authority to continue
operating and maintaining the same facilities it has been continuously
operating and maintaining since 1967, to continue providing the
international satellite communications services it has likewise been
providing since 1967, and to charge the current rates applied for in
rendering such services. Pending hearing, it also applied for a
provisional authority so that it can continue to operate and maintain
the above mentioned facilities, provide the services and charge
therefor the aforesaid rates therein applied for.
On September 16, 1987, petitioner was granted a provisional
authority to continue operating its existing facilities, to render the
services it was then offering, and to charge the rates it was then
charging. This authority was valid for six (6) months from the date of
said order. 5 When said provisional authority expired on March 17, 1988,
it was extended for another six (6) months, or up to September 16,
1988.
The NTC order now in controversy had further extended the
provisional authority of the petitioner for another six (6) months,
counted from September 16, 1988, but it directed the petitioner to
charge modified reduced rates through a reduction of fifteen percent
(15%) on the present authorized rates. Respondent Commissioner
ordered said reduction on the following ground:
"The Commission in its on-going review of present service
rates takes note that after an initial evaluation by the Rates
Regulation Division of the Common Carriers Authorization
Department of the financial statements of applicant, there is merit
in a REDUCTION in some of applicant's rates, subject to further
reductions, should the Commission finds (sic) in its further
evaluation that more reduction should be effected either on the
basis of a provisional authorization or in the final consideration of
the case." 6
 PHILCOMSAT assails the above-quoted order for the following
reasons:
1. The enabling act (Executive Order No. 546) of respondent NTC
empowering it to fix rates for public service communications does not
provide the necessary standards constitutionally required, hence
there is an undue delegation of legislative power, particularly the
adjudicatory powers of NTC;
2. Assuming arguendo that the rate-fixing power was properly
and constitutionally conferred, the same was exercised in an
unconstitutional manner, hence it is ultra vires, in that (a) the
questioned order violates procedural due process for having been
issued without prior notice and hearing; and (b) the rate reduction it
imposes is unjust, unreasonable and confiscatory, thus constitutive of
a violation of substantive due process.
I. Petitioner asseverates that nowhere in the provisions
of Executive Order No. 546, providing for the creation of respondent
NTC and granting its rate-fixing powers, nor of Executive Order No.
196, placing petitioner under the jurisdiction of respondent NTC, can it
be inferred that respondent NTC is guided by any standard in the
exercise of its rate-fixing and adjudicatory powers. While petitioner in
its petition-in-chief raised the issue of undue delegation of legislative
power, it subsequently clarified its said submission to mean that the
order mandating a reduction of certain rates is undue delegation not of
legislative but of quasi-judicial power to respondent NTC, the exercise
of which allegedly requires an express conferment by the legislative
body.
Whichever way it is presented, petitioner is in effect questioning
the constitutionality of Executive Orders Nos. 546 and 196 on the
ground that the same do not fix a standard for the exercise of the
power therein conferred.
We hold otherwise.
Fundamental is the rule that delegation of legislative power may
be sustained only upon the ground that some standard for its exercise
is provided and that the legislature in making the delegation has
prescribed the manner of the exercise of the delegated power.
Therefore, when the administrative agency concerned, respondent
NTC in this case, establishes a rate, its act must both be non-
confiscatory and must have been established in the manner
prescribed by the legislature; otherwise, in the absence of a fixed
standard, the delegation of power becomes unconstitutional. In case
of a delegation of rate-fixing power, the only standard which the
legislature is required to prescribe for the guidance of the
administrative authority is that the rate be reasonable and just.
However, it has been held that even in the absence of an express
requirement as to reasonableness, this standard may be implied. 7
It becomes important then to ascertain the nature of the power
delegated to respondent NTC and the manner required by the statute
for the lawful exercise thereof.
Pursuant to Executive Orders Nos. 546 and 196, respondent NTC
is empowered, among others, to determine and prescribe rates
pertinent to the operation of public service communications which
necessarily include the power to promulgate rules and regulations in
connection therewith. And, under Section 15(g) ofExecutive Order No.
546, respondent NTC should be guided by the requirements of public
safety, public interest and reasonable feasibility of maintaining
effective competition of private entities in communications and
broadcasting facilities. Likewise, in Section 6(d) thereof, which
provides for the creation of the Ministry of Transportation and
Communications with control and supervision over respondent NTC, it
is specifically provided that the national economic viability of the
entire network or components of the communications systems
contemplated therein should be maintained at reasonable rates. We
need not go into an in-depth analysis of the pertinent provisions of the
law in order to conclude that respondent NTC, in the exercise of its
rate-fixing power, is limited by the requirements of public safety, public
interest, reasonable feasibility and reasonable rates, which conjointly
more than satisfy the requirements of a valid delegation of legislative
power.
II. On another tack, petitioner submits that the questioned order
violates procedural due process because it was issued motu
proprio, without notice to petitioner and without the benefit of a
hearing. Petitioner laments that said order was based merely on an
"initial evaluation," which is a unilateral evaluation, but had petitioner
been given an opportunity to present its side before the order in
question was issued, the confiscatory nature of the rate reduction and
the consequent deterioration of the public service could have been
shown and demonstrated to respondents. Petitioner argues that the
function involved in the rate fixing-power of NTC is adjudicatory and
hence quasi-judicial, not quasi-legislative; thus, notice and hearing are
necessary and the absence thereof results in a violation of due
process.
Respondents admit that the application of a policy like the fixing
of rates as exercised by administrative bodies is quasi-judicial rather
than quasi-legislative: that where the function of the administrative
agency is legislative, notice and hearing are not required, but where
an order applies to a named person, as in the instant case, the
function involved is adjudicatory. 8 Nonetheless, they insist that under
the facts obtaining the order in question need not be preceded by a
hearing, not because it was issued pursuant to respondent NTC's
legislative function but because the assailed order is merely
interlocutory, it being an incident in the ongoing proceedings on
petitioner's application for a certificate of public convenience; and
that petitioner is not the only primary source of data or information
since respondent is currently engaged in a continuing review of the
rates charged.
We find merit in petitioner's contention.
In Vigan Electric Light Co.,Inc. vs. Public Service
Commission, 9 we made a categorical classification as to when the
rate-fixing power of administrative bodies is quasi-judicial and when it
is legislative, thus:
"Moreover, although the rule-making power end even the
power to fix rates — when such rules and/or rates are meant to
apply to all enterprises of a given kind throughout the Philippines
— may partake of a legislative character, such is not the nature of
the order complained of. Indeed, the same applies exclusively to
petitioner herein. What is more, it is predicated upon the finding of
fact — based upon a report submitted by the General Auditing
Office — that petitioner is making a profit of more than 12% of its
invested capital, which is denied by petitioner. Obviously, the latter
is entitled to cross-examine the maker of said report, and to
introduce evidence to disprove the contents thereof and/or explain
or complement the same, as well as to refute the conclusion drawn
therefrom by the respondent. In other words, in making said finding
of fact, respondent performed a function partaking of a quasi-
judicial character, the valid exercise of which demands previous
notice and hearing."
This rule was further explained in the subsequent case of The
Central Bank of the Philippines vs. Cloribel, et al. 10 to wit:
"It is also clear from the authorities that where the function
of the administrative body is legislative, notice of hearing is not
required by due process of law (See Oppenheimer, Administrative
Law, 2 Md. L.R. 185, 204, supra,where it is said: 'If the nature of the
administrative agency is essentially legislative, the requirements
of notice and hearing are not necessary. The validity of a rule of
future action which affects a group, if vested rights of liberty or
property are not involved, is not determined according to the same
rules which apply in the case of the direct application of a policy
to a specific individual') ...It is said in 73 C.J.S. Public
Administrative Bodies and Procedure, sec. 130, pages 452 and 453:
'Aside from statute, the necessity of notice and hearing in an
 administrative proceeding depends on the character of the
proceeding and the circumstances involved. In so far as
generalization is possible in view of the great variety of
administrative proceedings, it may be stated as a general rule that
notice and hearing are not essential to the validity of
administrative action where the administrative body acts in the
exercise of executive, administrative, or legislative functions; but
where a public administrative body acts in a judicial or quasi-
judicial matter, and its acts are particular and immediate rather
than general and prospective, the person whose rights or property
may be affected by the action is entitled to notice and hearing." 11
The order in question which was issued by respondent Alcuaz no
doubt contains all the attributes of a quasi-judicial adjudication.
Foremost is the fact that said order pertains exclusively to petitioner
and to no other. Further, it is premised on a finding of fact, although
patently superficial, that there is merit in a reduction of some of the
rates charged — based on an initial evaluation of petitioner's financial
statements — without affording petitioner the benefit of an
explanation as to what particular aspect or aspects of the financial
statements warranted a corresponding rate reduction. No
rationalization was offered nor were the attending contingencies, if
any, discussed, which prompted respondents to impose as much as a
fifteen percent (15%) rate reduction. It is not far-fetched to assume
that petitioner could be in a better position to rationalize its rates vis-
a-vis the viability of its business requirements. The rates it charges
result from an exhaustive and detailed study it conducts of the multi-
faceted intricacies attendant to a public service undertaking of such
nature and magnitude. We are, therefore, inclined to lend greater
credence to petitioner's ratiocination that an immediate reduction in
its rates would adversely affect its operations and the quality of its
service to the public considering the maintenance requirements, the
projects it still has to undertake and the financial outlay involved.
Notably, petitioner was not even afforded the opportunity to cross-
examine the inspector who issued the report on which respondent NTC
based its questioned order. LibLex

At any rate, there remains the categorical admission made by

respondent NTC that the questioned order was issued pursuant to its
quasi-judicial functions. It, however, insists that notice and hearing are
not necessary since the assailed order is merely incidental to the
entire proceedings and, therefore, temporary in nature. This postulate
is bereft of merit.
While respondents may fix a temporary rate pending final
determination of the application of petitioner, such rate-fixing order,
temporary though it may be, is not exempt from the statutory
procedural requirements of notice and hearing, as well as the
requirement of reasonableness. Assuming that such power is vested in
NTC, it may not exercise the same in an arbitrary and confiscatory
manner. Categorizing such an order as temporary in nature does not
perforce entail the applicability of a different rule of statutory
procedure than would otherwise be applied to any other order on the
same matter unless otherwise provided by the applicable law. In the
case at bar, the applicable statutory provision is Section 16(c) of the
Public Service Act which provides:
"Section 16. Proceedings of the Commission, upon notice and
hearing.— The Commission shall have power, upon proper notice
and hearing in accordance with the rules and provisions of this
Act, subject to the limitations and exceptions mentioned and
saving provisions to the contrary:
xxx xxx xxx
(c) To fix and determine individual or joint rates, ...which shall
be imposed, observed and followed thereafter by any public
service; ...."
There is no reason to assume that the aforesaid provision does
not apply to respondent NTC, there being no limiting, excepting, or
saving provisions to the contrary in Executive Orders Nos. 546 and
196.
It is thus clear that with regard to rate-fixing, respondent has no
authority to make such order without first giving petitioner a hearing,
whether the order be temporary or permanent, and it is immaterial
whether the same is made upon a complaint, a summary investigation,
or upon the commission's own motion as in the present case. That
such a hearing is required is evident in respondents' order of
September 16, 1987 in NTC Case No. 8794 which granted PHILCOMSAT
a provisional authority "to continue operating its existing facilities, to
render the services it presently offers, and to charge the rates as
reduced by them" under the condition that "(s)ubject to hearing and
the final consideration of the merit of this application, the Commission
may modify, revise or amend the rates . . .." 12
While it may be true that for purposes of rate-fixing respondents
may have other sources of information or data, still, since a hearing is
essential, respondent NTC should act solely on the basis of the
evidence before it and not on knowledge or information otherwise
acquired by it but which is not offered in evidence or, even if so
adduced, petitioner was given no opportunity to controvert.
Again, the order requires the new reduced rates to be made
effective on a specified date. It becomes a final legislative act as to
the period during which it has to remain in force pending the final
determination of the case. 13 An order of respondent NTC prescribing
reduced rates, even for a temporary period, could be unjust,
unreasonable or even confiscatory, especially if the rates are
unreasonably low, since the utility permanently loses its just revenue
during the prescribed period. In fact, such order is in effect final
insofar as the revenue during the period covered by the order is
concerned. Upon a showing, therefore, that the order requiring a
reduced rate is confiscatory, and will unduly deprive petitioner of a
reasonable return upon its property, a declaration of its nullity
becomes inductible, which brings us to the issue on substantive due
process.
III. Petitioner contends that the rate reduction is confiscatory in
that its implementation would virtually result in a cessation of its
operations and eventual closure of business. On the other hand,
respondents assert that since petitioner is operating its
communications satellite facilities through a legislative franchise, as
such grantee it has no vested right therein. What it has is merely a
privilege or license which may be revoked at will by the State at any
time without necessarily violating any vested property right of herein
petitioner. While petitioner concedes this thesis of respondent, it
counters that the withdrawal of such privilege should nevertheless be
neither whimsical nor arbitrary, but it must be fair and reasonable.

There is no question that petitioner is a mere grantee of a

legislative franchise which is subject to amendment, alteration, or
repeal by Congress when the common good so requires. 14 Apparently,
therefore, such grant cannot be unilaterally revoked absent a showing
that the termination of the operation of said utility is required by the
common good.
The rule is that the power of the State to regulate the conduct
and business of public utilities is limited by the consideration that it is
not the owner of the property of the utility, or clothed with the general
power of management incident to ownership, since the private right of
ownership to such property remains and is not to be destroyed by the
regulatory power. The power to regulate is not the power to destroy
useful and harmless enterprises, but is the power to protect, foster,
promote, preserve, and control with due regard for the interest, first
and foremost, of the public, then of the utility and of its patrons. Any
regulation, therefore, which operates as an effective confiscation of
private property or constitutes an arbitrary or unreasonable
infringement of property rights is void, because it is repugnant to the
constitutional guaranties of due process and equal protection of the
laws. 15
Hence, the inherent power and authority of the State, or its
authorized agent, to regulate the rates charged by public utilities
should be subject always to the requirement that the rates so fixed
shall be reasonable and just. A commission has no power to fix rates
which are unreasonable or to regulate them arbitrarily. This basic
requirement of reasonableness comprehends such rates which must
not be so low as to be confiscatory, or too high as to be oppressive. 16
What is a just and reasonable rate is not a question of formula
but of sound business judgment based upon the evidence; 17 it is a
question of fact calling for the exercise of discretion, good sense, and
a fair, enlightened and independent judgment 18 In determining
whether a rate is confiscatory, it is essential also to consider the
given situation, requirements and opportunities of the utility. A method
often employed in determining reasonableness is the fair return upon
the value of the property to the public utility. Competition is also a
very important factor in determining the reasonableness of rates since
a carrier is allowed to make such rates as are necessary to meet
competition. 19
A cursory perusal of the assailed order reveals that the rate
reduction is solely and primarily based on the initial evaluation made
on the financial statements of petitioner, contrary to respondent NTC's
allegation that it has several other sources of information without,
however, divulging such sources. Furthermore, it did not as much as
make an attempt to elaborate on how it arrived at the prescribed
rates. It just perfunctorily declared that based on the financial
statements, there is merit for a rate reduction without any elucidation
on what implications and conclusions were necessarily inferred by it
from said statements. Nor did it deign to explain how the data
reflected in the financial statements influenced its decision to impose
a rate reduction.
On the other hand, petitioner may likely suffer a severe
drawback, with the consequent detriment to the public service, should
the order of respondent NTC turn out to be unreasonable and
improvident. The business in which petitioner is engaged is unique in
that its machinery and equipment have always to be taken in relation
to the equipment on the other end of the transmission arrangement.
Any lack, aging, acquisition, rehabilitation, or refurbishment of
machinery and equipment necessarily entails a major adjustment or
innovation on the business of petitioner. As pointed out by petitioner,
any change in the sending end abroad has to be matched with the
corresponding change in the receiving end in the Philippines.
 conversely, any change in the receiving end abroad has to be matched
with the corresponding change in the sending end in the Philippines.
An inability on the part of petitioner to meet the variegations
demanded by technology could result in a deterioration or total failure
of the service of satellite communications. cdll

At present, petitioner is engaged in several projects aimed at

refurbishing, rehabilitating, and renewing its machinery and equipment
in order to keep up with the continuing changes of the times and to
maintain its facilities at a competitive level with the technological
advances abroad. These projected undertakings were formulated on
the premise that rates are maintained at their present or at
reasonable levels. Hence, an undue reduction thereof may practically
lead to a cessation of its business. While we concede the primacy of
the public interest in an adequate and efficient service, the same is
not necessarily to be equated with reduced rates. Reasonableness in
the rates assumes that the same is fair to both the public utility and
the consumer. cdll

Consequently, we hold that the challenged order, particularly on

the issue of rates provided therein, being violative of the due process
clause is void and should be nullified. Respondents should now
proceed, as they should heretofore have done, with the hearing and
determination of petitioner's pending application for a certificate of
public convenience and necessity and in which proceeding the subject
of rates involved in the present controversy, as well as other matters
involved in said application, may be duly adjudicated with reasonable
dispatch and with due observance or our pronouncements herein.
WHEREFORE, the writ prayed for is GRANTED and the order of
respondents, dated September 2, 1988, in NTC Case No. 87-94 is
hereby SET ASIDE. The temporary restraining order issued under our
resolution of September 13, 1988, as specifically directed against the
aforesaid order of respondents on the matter of existing rates on
petitioner's present authorized services, is hereby made permanent.
SO ORDERED.
(Philippine Communications Satellite Corp. v. Alcuaz, G.R. No. 84818,
|||

[December 18, 1989], 259 PHIL 707-725)

[G.R. No. 46496. February 27, 1940.]

 ANG TIBAY, represented by TORIBIO TEODORO, manager and
proprietor, and NATIONAL WORKERS'
BROTHERHOOD, petitioners, vs. THE COURT OF INDUSTRIAL
RELATIONS and NATIONAL LABOR UNION, INC., respondents.

Solicitor-General Ozaeta and Assistant Attorney Barcelona for the

Court of Industrial Relations.
Antonio D. Paguia; for National Labor Union.
Claro M. Recto; for petitioner "Ang Tibay".
Jose M. Casal; for National Workers' Brotherhood.

SYLLABUS

1. COURT OF INDUSTRIAL RELATIONS; POWER. — The nature of

the Court of Industrial Relations and of its power is extensively
discussed in the decision.
2. ID.; ID.; TECHNICAL RULES OF PROCEDURE; DUE PROCESS OF
LAW. — The Court of Industrial Relations is not narrowly constrained
by technical rules of procedure, and Commonwealth Act No.
103 requires it to act according to justice and equity and substantial
merits of the case, without regard to technicalities or legal evidence
but may inform its mind in such manner as it may deem just and
equitable (Goseco vs. Court of Industrial Relations et al., G. R. No.
46673). The fact, however, that the Court of Industrial Relations may
be said to be free from the rigidity of certain procedural requirements
does not mean that it can, in justiciable cases coming before it,
entirely ignore or disregard the fundamental and essential
requirements of due process in trials and investigations of an
administrative character.
3. ID.; ID.; ID.; ID.; CARDINAL PRIMARY RIGHTS. — There are
cardinal primary rights which must be respected even in proceedings
of this character. The first of these rights is the right to a hearing,
which includes the right of the party interested or affected to present
his own case and submit evidence in support thereof. Not only must
the party be given an opportunity to present his case and to adduce
evidence tending to establish the rights which he asserts but the
tribunal must consider the evidence presented. While the duty to
deliberate does not impose the obligation to decide right, it does imply
a necessity which cannot be disregarded, namely, that of having
something to support its decision. Not only must there be some
evidence to support a finding or conclusion, but the evidence must be
substantial. The decision must be rendered on the evidence presented
 at the hearing, or at least contained in the record and disclosed to the
parties affected. The Court of Industrial Relations or any of its judges,
therefore, must act on its or his own independent consideration of the
law and facts of the controversy, and not simply accept the views of a
subordinate in arriving at a decision. The Court of Industrial Relations
should, in all controvercial questions, render its decision in such a
manner that the parties to the proceeding can know the various issues
involved, and the reasons for the decisions rendered. The performance
of this duty is inseparable from the authority conferred upon it.
4. ID.; ID. ; ID. ; ID. ; ID.; CASE AT BAR ; NEW TRIAL GRANTED. — In
the light of the foregoing fundamental principles, it is sufficient to
observe here that, except as to the alleged agreement between the
Ang Tibay and the National Workers' Brotherhood (appendix A), the
record is barren and does not satisfy the thirst for a factual basis upon
which to predicate, in a rational way, a conclusion of law. This result,
however, does not now preclude the concession of a new trial prayed
for by the respondent National Labor Union, Inc. The interest of justice
would be better served if the movant is given opportunity to present at
the hearing the documents referred to in his motion and such other
evidence as may be relevant to the main issue involved. The
legislation which created the Court of Industrial Relations and under
which it acts is new. The failure to grasp the fundamental issue
involved is not entirely attributable to the parties adversely affected
by the result. Accordingly, the motion for a new trial should be, and the
same is hereby, granted, and the entire record of this' case shall be
remanded to the Court of Industrial Relations, with instruction that it
re-open the case, receive all such evidence as may be relevant, and
otherwise proceed in accordance with the requirements set forth in
the decision.

DECISION

LAUREL, J :p

The Solicitor-General in behalf of the respondent Court of

Industrial Relations in the above-entitled case has filed a motion for
reconsideration and moves that, for the reasons stated in his motion,
we reconsider the following legal conclusions of the majority opinion
of this Court:
"1. Que un contrato de trabajo, asi individual como colectivo,
sin termino fijo de duracion o que no sea para una determinada,
termina o bien por voluntad de cualquiera de las partes o cada vez
 que llega el plazo fijado para el pago de los salarios segun
costumbre en la localidad o cuando se termine la obra;
"2. Que los obreros de una empresa fabril, que han celebrado
contrato, ya individual ya colectivamente, con ella, sin tiempo fijo,
y que se han visto obligados a cesar en sus trabajos por haberse
declarado paro forzoso en la fabrica en la cual trabajan, dejan de
ser empleados u obreros de la misma;
"3. Que un patrono o sociedad que ha celebrado un contrato
colectivo de trabajo con sus obreros sin tiempo fijo de duracion y
sin ser para una obra determinada y que se niega a readmitir a
dichos obreros que cesaron como consecuencia de un paro
forzoso, no es culpable de practica injusta ni incurre en la sancion
penal del articulo 5 de la Ley No. 213 del Commonwealth, aunque
su negativa a readmitir se deba a que dichos obreros pertenecen a
un determinado organismo obrero, puesto que tales ya han dejado
de ser empleados suyos por terminacion del contrato en virtud del
paro."
The respondent National Labor Union, Inc., on the other hand,
prays for the vacation of the judgment rendered by the majority of this
Court and the remanding of the case to the Court of Industrial
Relations for a new trial, and avers:
"1. That Toribio Teodoro's claim that on September 26,1938,
there was shortage of leather soles in ANG TIBAY making it
necessary for him to temporarily lay off the members of the
National Labor Union Inc., is entirely false and unsupported by the
records of the Bureau of Customs and the Books of Accounts of
native dealers in leather.
"2. That the supposed lack of leather materials claimed by
Toribio Teodoro was but a scheme adopted to systematically
discharge all the members of the National Labor Union, Inc., from
work.
"3. That Toribio Teodoro's letter to the Philippine Army dated
September 29, 1938, (re supposed delay of leather soles from the
States) was but a scheme to systematically prevent the forfeiture
of this bond despite the breach of his CONTRACT with the
Philippine Army.
"4. That the National Workers' Brotherhood of ANG TIBAY is a
company or employer union dominated by Toribio Teodoro, the
existence and functions of which are illegal. (281 U. S., 548,
petitioner's printed memorandum, p. 25.)
"5. That in the exercise by the laborers of their rights to
collective bargaining, majority rule and elective representation are
highly essential and indispensable. ( Sections 2 and
5, Commonwealth Act No. 213.)
 "6. That the century provisions of the Civil Code which had
been (the) principal source of dissensions and continuous civil war
in Spain cannot and should not be made applicable in interpreting
and applying the salutary provisions of a modern labor legislation
of American origin where industrial peace has always been the
rule.
"7. That the employer Toribio Teodoro was guilty of unfair
labor practice for discriminating against the National Labor Union,
Inc., and unjustly favoring the National Workers' Brotherhood.
"8. That the exhibits hereto attached are so inaccessible to
the respondents that even with the exercise of due diligence they
could not be expected to have obtained them and offered as
evidence in the Court of Industrial Relations.
"9. That the attached documents and exhibits are of such far-
reaching importance and effect that their admission would
necessarily mean the modification and reversal of the judgment
rendered herein."
The petitioner, Ang Tibay, has filed an opposition both to the
motion for reconsideration of the respondent Court of Industrial
Relations and to the motion for new trial of the respondent National
Labor Union, Inc.
In view of the conclusion reached by us and to be herein- after
stated with reference to the motion for a new trial of the respondent
National Labor Union, Inc., we are of the opinion that it is not
necessary to pass upon the motion for reconsideration of the Solicitor-
General. We shall proceed to dispose of the motion for new trial of the
respondent labor union. Before doing this, however, we deem it
necessary, in the interest of orderly procedure in cases of this nature,
to make several observations regarding the nature of the powers of
the Court of Industrial Relations and emphasize certain guiding
principles which should be observed in the trial of cases brought
before it. We have re-examined the entire record of the proceedings
had before the Court of Industrial Relations in this case, and we have
found no substantial evidence to indicate that the exclusion of the 89
laborers here was due to their union affiliation or activity. The whole
transcript taken contains what transpired during the hearing and is
more of a record of contradictory and conflicting statements of
opposing counsel, with sporadic conclusion drawn to suit their own
views. It is evident that these statements and expressions of views of
counsel have no evidentiary value.
The Court of Industrial Relations is a special court whose
functions are specifically stated in the law of its creation
(Commonwealth Act No. 103). It is more an administrative board than a
part of the integrated judicial system of the nation. It is not intended
to be a mere receptive organ of the Government. Unlike a court of
justice which is essentially passive, acting only when its jurisdiction is
invoked and deciding only cases that are presented to it by the parties
litigant, the function of the Court of Industrial Relations, as will appear
from perusal of its organic law, is more active, affirmative and
dynamic. It not only exercises judicial or quasijudicial functions in the
determination of disputes between employers and employees but its
functions are far more comprehensive and extensive. It has
jurisdiction over the entire Philippines, to consider, investigate, decide,
and settle any question, matter controversy or dispute arising
between, and/or affecting, employers and employees or laborers, and
landlords and tenants or farm-laborers, and regulate the relations
between them, subject to, and in accordance with, the provisions
ofCommonwealth Act No. 103 (section 1). It shall take cognizance for
purposes of prevention, arbitration, decision and settlement, of any
industrial or agricultural dispute causing or likely to cause a strike or
lockout, arising from differences as regards wageshares or
compensation, hours of labor or conditions of tenancy or employment,
between employers and employees or laborers and between landlords
and tenants or farm-laborers, provided that the number of employees,
laborers or tenants or farm-laborers involved exceeds thirty, and such
industrial or agricultural dispute is submitted to the Court by the
Secretary of Labor or by any or both of the parties to the controversy
and certified by the Secretary of Labor as existing and proper to be
death with by the Court for the sake of public interest. (Section
A, ibid.) It shall, before hearing the dispute and in the course of such
hearing, endeavor to reconcile the parties and induce them to settle
the dispute by amicable agreement. (Paragraph 2, section 4, ibid.)
When directed by the President of the Philippines, it shall investigate
and study all pertinent facts related to the industry concerned or to
the industries established in a designated locality, with a view to
determining the necessity and fairness of fixing and adopting for such
industry or locality a minimum wage or share of laborers or tenants, or
a maximum "canon" or rental to be paid by the "inquilinos" or tenants
or lessees to landowners. (Section 5, ibid.) In fine, it may appeal to
voluntary arbitration in the settlement of industrial disputes; may
employ mediation or conciliation for that purpose, or recur to the more
effective system of official investigation and compulsory arbitration in
order to determine specific controversies between labor and capital in
industry and in agriculture. There is in reality here a mingling of
executive and judicial functions, which is a departure from the rigid
doctrine of the separation of governmental powers.
 In the case of Goseco vs. Court of Industrial Relations et al., G. R.
No. 46673, promulgated September 13, 1939, we had occasion to point
out that the Court of Industrial Relations is not narrowly constrained
by technical rules of procedure, and the Act requires it to "act
according to justice and equity and substantial merits of the case,
without regard to technicalities or legal forms and shall not be bound
by any technical rules of legal evidence but may inform its mind in
such manner as it may deem just and equitable." (Section
20, Commonwealth Act No. 103.) It shall not be restricted to the
specific relief claimed or demands made by the parties to the
industrial or agricultural dispute, but may include in the award, order
or decision any matter or determination which may be deemed
necessary or expedient for the purpose of settling the dispute or of
preventing further industrial or agricultural disputes. (Section 13, ibid.)
And in the light of this legislative policy, appeals to this Court have
been especially regulated by the rules recently promulgated by this
Court to carry into effect the avowed legislative purpose. The fact,
however, that the Court of Industrial Relations may be said to be free
from the rigidity of certain procedural requirements does not mean
that it can, in justiciable cases coming before it, entirely ignore or
disregard the fundamental and essential requirements of due Process
in trials and investigations of an administrative character. There are
cardinal primary rights which must be respected even in proceedings
of this character:
(1) The first of these rights is the right to a hearing which
includes the right of the party interested or affected to present his
own case and submit evidence in support thereof. In the language of
Chief Justice Hughes, in Morgan v. U. S., 304 U. S. 1, 58 S. Ct. 773, 999,
82 Law. ed 1129, "the liberty and property of the citizen shall be
protected by the rudimentary requirements of fair play."
(2) Not only must the party be given an opportunity to present his
case and to adduce evidence tending to establish the rights which he
asserts but the tribunal must consider the evidence presented. (Chief
Justice Hughes in Morgan v. U. S. 298 U. S. 468, 56 S. Ct. 906, 80 Law.
ed. 1288.) In the language of this Court in Edwards vs. McCoy, 22 Phil.,
598, "the right to adduce evidence, without the corresponding duty on
the part of the board to consider it, is vain. Such right is conspicuously
futile if the person or persons to whom the evidence is presented can
thrust it aside without notice or consideration."
(3) "While the duty to deliberate does not impose the obligation to
decide right, it does imply a necessity which cannot be disregarded,
namely, that of having something to support its decision. A decision
with absolutely nothing to support it is a nullity, a place when directly
attached." (Edwards vs. McCoy, supra.) This principle emanates from
the more fundamental principle that the genius of constitutional
government is contrary to the vesting of unlimited power anywhere.
Law is both a grant and a limitation upon power.
(4) Not only must there be some evidence to support a finding or
conclusion (City of Manila vs. Agustin, G. R. No. 45844, promulgated
November 29, 1937, XXXVI O. G. 1335), but the evidence must be
"substantial." (Washington, Virginia & Maryland Coach Co. v. National
Labor Relations Board, 301 U. S. 142, 147, 57 S. Ct. 648, 650, 81 Law ed
965.) Substantial evidence is more than a mere scintilla It means such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion."
(Appalachian Electric Power v. National Labor Relations Board, 4
Cir., 93 F. 2d 985, 989; National Labor Relations Board v. Thompson
Products, 6 Cir., 97 F. 2d 13, 15; Ballston-stillwater Knitting Co. v.
National Labor Relations Board, 2 Cir., 98 F. 2d 758, 760.) . . . The
statute provides that 'the rules of evidence prevailing in courts of law
and equity shall not be controlling.' The obvious purpose of this and
similar provisions is to free administrative boards from the compulsion
of technical rules so that the mere admission of matter which would
be deemed incompetent in judicial proceedings would not invalidate
the administrative order. (Interstate Commerce Commission v. Baird,
194 U. S. 25, 44, 24 S. Ct. 563, 568, 48 Law. ed. 860; Interstate
Commerce Commission v. Louisville & Nashville R. Co., 227 U. S. 88,
93, 33 S. Ct. 185, 187, 57 Law. ed. 431; United States v. Abilene &
Southern Ry. Co., 265 U. S. 274, 288, 44 S. Ct. 565, 569, 68 Law. ed. lola;
Tagg Bros. & Moorhead v. United States, 280 U. S. 420, 442, 50 S. Ct.
220, 225, 74 Law. ed. 624.) But this assurance of a desirable flexibility
in administrative procedure does not go so far as to justify orders
without a basis in evidence having rational probative force. Mere
uncorroborated hearsay or rumor does not constitute substantial
evidence. (Consolidated Edison Co. v. National Labor Relations Board,
59 S. Ct. 206, 83 Law. ed. No. 4, Adv. Op., p. 131.)"
(5) The decision must be rendered on the evidence presented at
the hearing, or at least contained in the record and disclosed to the
parties affected. (Interstate Commence Commission vs. L. & N. R. Co.,
227 U. S. 88, 33 S. Ct. 185, 57 Law. ed. 431.)Only by confining the
administrative tribunal to the evidence disclosed to the parties, can
the latter be protected in their right to know and meet the case
against them. It should not, however, detract from their duty actively
to see that the law is enforced, and for that purpose, to use the
authorized legal methods of securing evidence and informing itself of
facts material and relevant to the controversy. Boards of inquiry may
be appointed for the purpose of investigating and determining the
facts in any given case, but their report and decision are only advisory.
(Section 9, Commonwealth Act No. 103.) The Court of Industrial
Relations may refer any industrial or agricultural dispute of any matter
under its consideration or advisement to a local board of inquiry, a
provincial fiscal, a justice of the peace or any public official in any
part of the Philippines for investigation, report and recommendation,
and may delegate to such board or public official such powers and
functions as the said Court of Industrial Relations may deem
necessary, but such delegation shall not affect the exercise of the
Court itself of any of its powers (Section 10, ibid.)
(6) The Court of Industrial Relations or any of its judges,
therefore, must act on its or his own independent consideration of the
law and facts of the controversy, and not simply accept the views of a
subordinate in arriving at a decision. It may be that the volume of work
is such that it is literally impossible for the titular heads of the Court
of Industrial Relations personally to decide all controversies coming
before them. In the United States the difficulty is solved with the
enactment of statutory authority authorizing examiners or other
subordinates to render final decision, with right to appeal to board or
commission, but in our case there is no such statutory authority.
(7) The Court of Industrial Relations should, in all controversial
questions, render its decision in such a manner that the parties to the
proceeding can know the vario issues involved, and the reasons for the
decisions rendered. The performance of this duty is inseparable from
the authority conferred upon it.
In the light of the foregoing fundamental principles, it is sufficient
to observe here that, except as to the alleged agreement between the
Ang Tibay and the National Workers' Brotherhood (appendix A), the
record is barren and does not satisfy the thirst for a factual basis upon
which to predicate, in a rational way, a conclusion of law.
This result, however, does not now preclude the concession of a
new trial prayed for by the respondent National Labor Union, Inc. In
the portion of the petition hereinabove quoted of the National Labor
Union, Inc., it is alleged that "the supposed lack of leather material
claimed by Toribio Teodoro was but a scheme adopted to
systematically discharge all the members of the National Labor Union,
Inc., from work" and this averment is desired to be proved by the
petitioner with the "records of the Bureau of Customs and the Books
of Accounts of native dealers in leather"; that "the National Workers'
Brotherhood Union of Ang Tibay is a company or employer union
dominated by Toribio Teodoro, the existence and functions of which
are illegal." Petitioner further alleges under oath that the exhibits
 attached to the petition to prove his substantial averments "are so
inaccessible to the respondents that even with the exercise of due
diligence they could not be expected to have obtained them and
offered as evidence in the Court of Industrial Relations", and that the
documents attached to the petition "are of such far reaching
importance and effect that their admission would necessarily mean
the modification and reversal of the judgment rendered therein." We
have considered the reply of Ang Tibay and its arguments against the
petition. By and large, after considerable discussion, we have come to
the conclusion that the interest of justice would be better served if the
movant is given opportunity to present at the hearing the documents
referred to in his motion and such other evidence as may be relevant
to the main issue involved. The legislation which created the Court of
Industrial Relations and under which it acts is new. The failure to
grasp the fundamental issue involved is not entirely attributable to the
parties adversely affected by the result. Accordingly, the motion for a
new trial should be, and the same is hereby granted, and the entire
record of this case shall be remanded to the Court of Industrial
Relations, with instruction that it reopen the case, receive all such
evidence as may be relevant, and otherwise proceed in accordance
with the requirements set forth hereinabove. So ordered.
(Ang Tibay v. Court of Industrial Relations, G.R. No. 46496, [February 27,
|||

1940], 69 PHIL 635-645)

 [G.R. No. 99327. May 27, 1993.]

ATENEO DE MANILA UNIVERSITY, FATHER JOAQUIN BERNAS,

S.J., DEAN CYNTHIA ROXAS-DEL CASTILLO, JUDGE RUPERTO
KAPUNAN, JR., JUSTICE VENICIO ESCOLIN, FISCAL MIGUEL
ALBAR, ATTYS. MARCOS HERRAS, FERDINAND CASIS, JOSE
CLARO TESORO, RAMON CAGUIOA and RAMON
ERENETA, petitioners, vs. HON. IGNACIO M. CAPULONG,
Presiding Judge of the RTC-Makati, Br. 134 ZOSIMO
MENDOZA, JR. ERNEST MONTECILLO, ADEL ABAS, JOSEPH
LLEDO AMADO SABBAN, DALMACIO LIM, JR., MANUEL
ESCALONA and JUDE FERNANDEZ, respondents.

Bengzon, Zarraga, Narciso, Cudala, Pecson, Benson & Jimenez for

petitioners.
Romulo, Mabanta, Buenaventura, Sayoc & De Los Angeles for petitioner
Cynthia Roxas-del Castillo.
Fabregas, Calida & Remollo for private respondents.

SYLLABUS

1. POLITICAL LAW; DUE PROCESS; REQUIREMENTS; MINIMUM

STANDARD TO BE SATISFIED IN IMPOSING DISCIPLINARY SANCTION BY
AN ACADEMIC INSTITUTION. — Corollary to respondent students'
contention of denial of due process is their argument that it is the Ang
Tibay case [69 Phil. 635 (1940)] and not the Guzman case [142 SCRA
699], which is applicable in the case at bar. Though both cases
essentially deal with the requirements of due process, the Guzman case
is more apropos to the instant case, since the latter deals specifically
with the minimum standards to be satisfied in the imposition of
disciplinary sanctions in academic institutions, such as petitioner
university herein, thus: "(1) the students must be informed in writing of
the nature and cause of any accusation against them; (2) that they shall
have the right to answer the charges against them with the assistance of
counsel, if desired; (3) they shall be informed of the evidence against
them; (4) they shall have the right to adduce evidence in their own
behalf; and (5) the evidence must be duly considered by the investigating
committee or official designated by the school authorities to hear and
decide the case."
2. ID.; ID.; ID.; MINIMUM STANDARD SATISFIED IN CASE AT BAR. — In
view of the death of Leonardo Villa, petitioner Cynthia del Castillo, as
Dean of the Ateneo Law School, notified and required respondent
students on February 11, 1991 to submit within twenty-four hours their
written statement on the incident, the records show that instead of filing
a reply, respondent students requested through their counsel, copies of
the charges. While some of the students mentioned in the February 11,
1991 notice duly submitted written statements, the others failed to do
so. Thus, the latter were granted an extension of up to February 18, 1991
to file their statements. Indubitably, the nature and cause of the
accusation were adequately spelled out in petitioners' notices dated
February 14 and 20, 1991. It is to be noted that the February 20, 1991
letter which quoted Rule No. 3 of its Rules of Discipline as contained in
the Ateneo Law School Catalogue was addressed individually to
respondent students. Petitioners' notices/letters dated February 11,
February 14 and 20 clearly show that respondent students were given
ample opportunity to adduce evidence in their behalf and to answer the
charges leveled against them. The requisite assistance of counsel was
met when, from the very start of the investigations before the Joint
Administration-Faculty-Student Committee, the law firm of Gonzales
Batiller and Bilog and Associates put in its appearance and filed
pleadings in behalf of respondent students.
3. ID.; ID.; DISCIPLINARY CASES INVOLVING STUDENTS,
ADMINISTRATIVE IN NATURE; RIGHT TO CROSS EXAMINE, NOT
INVOLVED. — Respondent students may not use the argument that since
they were not accorded the opportunity to see and examine the written
statements which became the basis of petitioners' February 14, 1991
order, they were denied procedural due process. Granting that they were
denied such opportunity, the same may not be said to detract from the
observance of due process, for disciplinary cases involving students
need not necessarily include the right to cross examination. An
administrative proceeding conducted to investigate students'
participation in a hazing activity need not be clothed with the attributes
of a judicial proceeding. A closer examination of the March 2, 1991
hearing which characterized the rules on the investigation as being
summary in nature and that respondent students have no right to
examine affiants-neophytes, reveals that this is but a reiteration of our
previous ruling in Alcuaz vs. PSBA, Q.C. Branch, 161 SCRA 20.
4. ID.; ID.; ID.; PROOF BEYOND REASONABLE DOUBT, NOT REQUIRED. —
With regard to the charge of hazing, respondent students fault
petitioners for not explicitly defining the word "hazing" and allege that
there is no proof that they were furnished copies of the 1990-91 Ateneo
Law School Catalogue which prohibits hazing. Such flawed sophistry is
not worthy of students who aspire to be future members of the Bar. It
cannot be over-emphasized that the charge filed before the Joint
Administration-Faculty-Student Investigating Committee and the
Disciplinary Board is not a criminal case requiring proof beyond
reasonable doubt but is merely administrative in character. As such, it is
not subject to the rigorous requirements of criminal due process,
particularly with respect to the specification of the charge involved. As
we have had occasion to declare in previous cases of a similar nature,
due process in disciplinary cases involving students does not entail
proceedings and hearings identical to those prescribed for actions and
proceedings in courts of justice. 34 Accordingly, disciplinary charges
against a student need not be drawn with the precision of a criminal
information or complaint. Having given prior notice to the students
involved that "hazing" which is not defined in the School Catalogue shall
be defined in accordance with Senate Bill No. 3815, the proposed bill on
the subject of Sen. Jose Lina, petitioners have said what needs to be
said. We deem this sufficient for purposes of the investigation under
scrutiny.
5. ID.; ADMINISTRATIVE LAW; EXHAUSTION OF ADMINISTRATIVE
REMEDIES, EXCEPTION; CASE AT BAR. — It is accepted legal doctrine
that an exception to the doctrine of exhaustion of remedies is when the
case involves a question of law, as in this case, where the issue is
whether or not respondent students have been afforded procedural due
process prior to their dismissal from petitioner university.
6. ID.; ACADEMIC FREEDOM CONSTRUED; CASE AT BAR. — At this
juncture, it would be meet to recall the essential freedoms subsumed by
Justice Felix Frankfurter in the term "academic freedom" cited in the
case of Sweezy v. New Hampshire, 37 thus: (1) who may teach; (2) what
may be taught; (3) how it shall be taught; and (4) who may be admitted to
study. "Academic freedom", the term as it evolved to describe the
emerging rights related to intellectual liberty, has traditionally been
associated with freedom of thought, speech, expression and the press; in
other words, with the right of individuals in university communities, such
as professors, researchers and administrators, to investigate, pursue,
discuss and, in the immortal words of Socrates, "to follow the argument
wherever it may lead," free from internal and external interference or
pressure. But obviously, its optimum impact is best realized where the
freedom is exercised judiciously and does not degenerate into unbridled
license. Early cases on this individual aspect of academic freedom have
stressed the need for assuring to such individuals a measure of
independence through the guarantees of autonomy and security of
tenure. The components of this aspect of academic freedom have been
categorized under the areas of: (1) who may teach and (2) how to teach.
It is to be realized that this individual aspect of academic freedom could
have developed only pari passu with its institutional counterpart. As
corporate entities, educational institutions of higher learning are
inherently endowed with the right to establish their policies, academic
and otherwise, unhampered by external controls or pressure. In
the Frankfurter formulation, this is articulated in the areas of: (1) what
shall be taught, e.g., the curriculum and (2) who may be admitted to
study. In an attempt to give an explicit definition with an expanded
coverage, the Commissioners of the Constitutional Commission of 1986
came up with this formulation: "Academic freedom shall be enjoyed by
students, by teachers, and by researchers." After protracted debate and
ringing speeches, the final version which was none too different from the
way it was couched in the previous two (2) Constitutions, as found in
Article XIV, Section 5 (2) states: "Academic freedom shall be enjoyed in
all institutions of higher learning." In anticipation of the question as to
whether and what aspects of academic freedom are included herein,
ConCom Commissioner Adolfo S. Azcuna explained: "Since academic
freedom is a dynamic concept, we want to expand the frontiers of
freedom, especially in education, therefore, we shall leave it to the
courts to develop further the parameters of academic freedom." While
under the Education Act of 1982, students have a right "to freely choose
their field of study, subject to existing curricula and to continue their
course therein up to graduation," such right is subject, as all rights are,
to the established academic and disciplinary standards laid down by the
academic institution. [Section 9 (2) of Batas Pambansa Blg. 232,
effective September 11, 1982]. "For private schools have the right to
establish reasonable rules and regulations for the admission, discipline
and promotion of students. This right . . . extends as well to parents . . .
as parents are under a social and moral (if not legal) obligation,
individually and collectively, to assist and cooperate with the schools."
(Yap Chin Fah v. Court of Appeals [Resolution], G.R. No. 90063, December
12, 1989) Such rules are "incident to the very object of incorporation and
indispensable to the successful management of the college. The rules
may include those governing student discipline." Going a step further, the
establishment of rules governing university-student relations,
particularly those pertaining to student discipline, may be regarded as
vital, not merely to the smooth and efficient operation of the institution,
but to its very survival.

7. REMEDIAL LAW; PROVISIONAL REMEDIES; TEMPORARY RESTRAINING

ORDER; PROPER ISSUANCE THEREOF IN CASE AT BAR. — respondent
students argue that we erred in issuing a Temporary Restraining Order
since petitioners do not stand to suffer irreparable damage in the event
that private respondents are allowed to re-enroll. No one can be so
myopic as to doubt that the immediate reinstatement of respondent
students who have been investigated and found by the Disciplinary Board
to have violated petitioner university's disciplinary rules and standards
will certainly undermine the authority of the administration of the school.
This we would be most loathe to do.

DECISION

ROMERO, J : p

In 1975, the Court was confronted with a mandamus proceeding to

compel the Faculty Admission Committee of the Loyola School of
Theology, a religious seminary which has a working arrangement with
the Ateneo de Manila University regarding accreditation of common
students, to allow petitioner who had taken some courses therein for
credit during summer, to continue her studies. 1 Squarely meeting the
issue, we dismissed the petition on the ground that students in the
position of petitioner possess, not a right, but a privilege, to be admitted
to the institution. Not having satisfied the prime and indispensable
requisite of a mandamus proceeding since there is no duty, much less a
clear duty, on the part of the respondent to admit the petitioner, the
petition did not prosper.
In support of its decision, the Court invoked academic freedom of
institutions of higher learning, as recognized by the Constitution, the
concept encompassing the right of a school to choose its students.
Eighteen (18) years later, the right of a University to refuse admittance to
its students, this time in Ateneo de Manila University proper, is again
challenged.
Whereas, in the Garcia case referred to in the opening paragraph, the
individual concerned was not a regular student, the respondents in the
case at bar, having been previously enrolled in the University, seek re-
admission. Moreover, in the earlier case, the petitioner was refused
admittance, not on such considerations as personality traits and
character orientation, or even inability to meet the institution's academic
or intellectual standards, but because of her behavior in the classroom.
The school pointedly informed her that ". . . it would seem to be in your
best interest to work with a Faculty that is more compatible with your
orientations."
On the other hand, students who are now being refused admission into
petitioner University have been found guilty of violating Rule No. 3 of the
Ateneo Law School Rules on Discipline which prohibits participation in
hazing activities. The case attracted much publicity due to the death of
one of the neophytes and serious physical injuries inflicted on another.
Herein lies an opportunity for the Court to add another dimension to the
concept of academic freedom of institutions of higher learning, this time
a case fraught with social and emotional overtones.
The facts which gave rise to this case which is far from novel, are as
follows:
As a requisite to membership, the Aquila Legis, a fraternity organized in
the Ateneo Law School, held its initiation rites on February 8, 9 and 10,
1991, for students interested in joining its ranks. As a result of such
initiation rites, Leonardo "Lennie" H. Villa, a first year student of
petitioner university, died of serious physical injuries at the Chinese
General Hospital on February 10, 1991. He was not the lone victim,
though, for another freshman by the name of Bienvenido Marquez was
also hospitalized at the Capitol Medical Center for acute renal failure
occasioned by the serious physical injuries inflicted upon him on the
same occasion.
In a notice dated February 11, 1991, petitioner Dean Cynthia del Castillo
created a Joint Administration-Faculty-Student Investigating
Committee 2 which was tasked to investigate and submit a report within
72 hours on the circumstances surrounding the death of Lennie Villa.
Said notice also required respondent students to submit their written
statements within twenty-four (24) hours from receipt. Although
respondent students received a copy of the written notice, they failed to
file a reply. In the meantime, they were placed on preventive
suspension. 3 Through their respective counsels, they requested copies
of the charges and pertinent documents or affidavits.
In a notice dated February 14, 1991, the Joint Administration-Faculty-
Student Investigating Committee, after receiving the written statements
and hearing the testimonies of several witnesses, found a prima
facie case against respondent students for violation of Rule 3 of the Law
School Catalogue entitled "Discipline." 4
Respondent students were then required to file their written answers to
the formal charge on or before February 18, 1991; otherwise, they would
be deemed to have waived their right to present their defenses.
On February 20, 1991, petitioner Dean created a Disciplinary Board
composed of petitioners Judge Ruperto Kapunan, Justice Venicio
Escolin, Atty. Marcos Herras, Fiscal Miguel Albar and Atty. Ferdinand
Casis, to hear the charges against respondent students. Cdpr

In a letter dated February 20, 1991, respondent students were informed

that they had violated Rule No. 3 of the Rules on Discipline contained in
the Law School Catalogue. Said letter also states: "The complaint/charge
against you arose from participation in acts of hazing committed during
the Aquila Legis initiations held on February 8-10, 1991. The evidence
against you consist of testimonies of students, showing your
participation in acts prohibited by the School regulations." Finally, it
ordered respondent students to file their written answers to the above
charge on or before February 22, 1991, otherwise they would be deemed
to have waive their defense. 5
In a motion dated February 21, 1991, respondent students, through
counsel, requested that the investigation against them be held in
abeyance, pending action on their request for copies of the evidence
against them. 6
Respondent students were then directed by the Board to appear before it
at a hearing on February 28, 1991 to clarify their answers with regard to
the charges filed by the investigating committee for violation of Rule No.
3. However, in a letter to petitioners dated February 27, 1991, counsel for
respondent students moved to postpone the hearing from February 28,
1991 to March 1, 1991. 7
Subsequently, respondent students were directed to appear on March 2,
1991 for clarificatory questions. 8 They were also informed that:
a) The proceedings will be summary in nature in accordance with
the rules laid down in the case of Guzman vs. National University; 9

b) Petitioners have no right to cross-examine the affiants-

neophytes;
 c) Hazing which is not defined in the School catalogue shall be
defined in accordance with the proposed bill of Sen. Jose Lina,
Senate Bill No. 3815;
d) The Board will take into consideration the degree of
participation of the petitioners in the alleged hazing incident in
imposing the penalty;
e) The Decision of the Board shall be appealable to the President
of the University, i.e. Respondent Joaquin Bernas S. J.
On March 5, 1991, petitioner Bernas wrote Dean del Castillo that, "in
cases where the Disciplinary Board is not prepared to impose the penalty
of dismissal, I would prefer that the Board leave the decision on the
penalty to the Administration so that this case be decided not just on the
Law School level but also on the University level." 10
In a resolution dated March 9, 1991, the Board found respondent
students guilty of violating Rule No. 3 of the Ateneo Law School Rules on
Discipline which prohibits participation in hazing activities. The Board
found that respondent students acted as master auxiliaries or "auxies"
during the initiation rites of Aquila Legis, and exercised the "auxies
privilege," which allows them to participate in the physical hazing.
Although respondent students claim that they were there to assist and
attend to the needs of the neophytes, actually they were assigned a
definite supportive role to play in the organized activity. Their guilt was
heightened by the fact that they made no effort to prevent the infliction
of further physical punishment on the neophytes under their care. The
Board considered respondent students part and parcel of the integral
process of hazing. In conclusion, the Board pronounced respondents
guilty of hazing, either by active participation or through acquiescence.
However, in view of the lack of unanimity among the members of the
Board on the penalty of dismissal, the Board left the imposition of the
penalty to the University Administration. 11 Petitioner Dean del Castillo
waived her prerogative to review the decision of the Board and left to the
President of the University the decision of whether to expel respondent
students or not.
Consequently, in a resolution dated March 10, 1991, petitioner Fr. Joaquin
G. Bernas, as President of the Ateneo de Manila University, accepted the
factual findings of the Board, thus: "that as Master Auxiliaries they
exercised the 'auxie's privilege;' that even assuming that they did not lay
hands on the neophytes," respondent students are still guilty in
accordance with the principle that "where two or more persons act
together in the commission of a crime, whether they act through the
physical volition of one or of all, proceeding severally or collectively,
each individual whose will contributes to the wrongdoing is responsible
for the whole." Fr. Bernas, in describing the offense which led to the
death of Leonardo Villa, concluded that the "offense of the respondents
can be characterized as grave and serious, subversive of the goals of
Christian education and contrary to civilized behavior." Accordingly, he
imposed the penalty of dismissal on all respondent students. 12

In a resolution dated March 18, 1991 and concurred in by petitioner Fr.

Bernas, 13 the Board excluded respondent students Abas and Mendoza
from the coverage of the resolution of March 10, 1991, inasmuch as at
the time the latter resolution was promulgated, neither had as yet
submitted their case to the Board. Said resolution also set the
investigation of the two students on March 21, 1991.
On March 18, 1991, respondent students filed with the Regional Trial
Court of Makati, a petition for certiorari, prohibition and mandamus with
prayer for temporary restraining order and preliminary
injunction 14 alleging that they were currently enrolled as students for the
second semester of schoolyear 1990-91. Unless a temporary restraining
order is issued, they would be prevented from taking their examinations.
The petition principally centered on the alleged lack of due process in
their dismissal.
On the same day, Judge Madayag issued a temporary restraining order
enjoining petitioners from dismissing respondent students and stopping
the former from conducting hearings relative to the hazing incident. 15
Hearings in connection with the issuance of the temporary restraining
order were then held. On April 7, 1991, the temporary restraining order
issued on March 18, 1991 lapsed. Consequently, a day after the
expiration of the temporary restraining order, Dean del Castillo created a
Special Board composed of Atty.(s) Jose Claro Tesoro, Ramon Caguioa,
and Ramon Ereñeta to investigate the charges of hazing against
respondent students Abas and Mendoza.
Respondent students reacted immediately by filing a Supplemental
Petition of certiorari, prohibition and mandamus with prayer for a
temporary restraining order and preliminary injunction, to include the
aforesaid members of the Special Board, as additional respondents to
the original petition. 16
Petitioners moved to strike out the Supplemental Petition arguing that
the creation of the Special Board was totally unrelated to the original
petition which alleged lack of due process in the conduct of
investigations by the Disciplinary Board against respondent students;
that a supplemental petition cannot be admitted without the same being
set for hearing and that the supplemental petition for the issuance of a
temporary restraining order will, in effect, extend the previous
restraining order beyond its mandatory 20-day lifetime. 17 Acting on the
urgent motion to admit the supplemental petition with prayer for a
temporary restraining order, Judge Amin, as pairing judge of respondent
Judge Capulong, granted respondent students' prayer on April 10, 1991. 18
On May 17, 1991, respondent Judge ordered petitioners to reinstate
respondent students. Simultaneously, the court ordered petitioners to
conduct special examinations in lieu of the final examinations which
allegedly the students were not allowed to take, and enjoined them to
maintain the status quo with regard to the cases of Adel Abas and
Zosimo Mendoza pending final determination of the issues of the instant
case. Lastly, it directed respondent students to file a bond in the amount
of P50,000.00. 19
On the same date, May 17, 1991, the Special Board investigating
petitioners Abas and Mendoza concluded its investigation. On May 20,
1991, it imposed the penalty of dismissal on respondent students Adel
Abas and Zosimo Mendoza and directed the dropping of their names from
its roll of students. 20
The following day or on May 21, 1991, respondent judge issued the writ of
preliminary injunction upon posting by respondent students of a bond
dated May 17, 1991 in the amount of P50,000.00.
Hence, this special civil action of certiorari under Rule 65 with prayer for
the issuance of a temporary restraining order questioning the order of
respondent judge reinstating respondent students dated May 17, 1991. On
May 30, 1991, this Court issued a temporary restraining order enjoining
the enforcement of the May 17, 1991 order of respondent judge. 21
In the case at bar, we come to grips with two relevant issues on
academic freedom, namely: (1) whether a school is within its rights in
expelling students from its academic community pursuant to its
disciplinary rules and moral standards; and (2) whether or not the
penalty imposed by the school administration is proper under the
circumstances. Cdpr

We grant the petition and reverse the order of respondent judge ordering
readmission of respondent students. Respondent judge committed grave
abuse of discretion when he ruled that respondent students had been
denied due process in the investigation of the charges against them.
It is the threshold argument of respondent students that the decision of
petitioner Fr. Joaquin Bernas, S. J., then President of the Ateneo de
Manila University, to expel them was arrived at without affording them
their right to procedural due process. We are constrained to disagree as
we find no indication that such right has been violated. On the contrary,
respondent students' rights in a school disciplinary proceeding, as
enunciated in the cases of Guzman v. National University, 22 Alcuaz v
PSBA, Q.C. Branch 23 and Non v. Dames II 24 have been meticulously
respected by petitioners in the various investigative proceedings held
before they were expelled.
Corollary to their contention of denial of due process is their argument
that it is the Ang Tibay case 25 and not the Guzman case which is
applicable in the case at bar. Though both cases essentially deal with
the requirements of due process, the Guzman case is more apropos to
the instant case, since the latter deals specifically with the minimum
standards to be satisfied in the imposition of disciplinary sanctions in
academic institutions, such as petitioner university herein, thus:
"(1) the students must be informed in writing of the nature and
cause of any accusation against them; (2) that they shall have the
right to answer the charges against them with the assistance of
counsel, if desired; (3) they shall be informed of the evidence
against them; (4) they shall have the right to adduce evidence in
their own behalf; and (5) the evidence must be duly considered by
the investigating committee or official designated by the school
authorities to hear and decide the case."26
It cannot seriously be asserted that the above requirements were not
met. When, in view of the death of Leonardo Villa, petitioner Cynthia del
Castillo, as Dean of the Ateneo Law School, notified and required
respondent students on February 11, 1991 to submit within twenty-four
hours their written statement on the incident, 27 the records show that
instead of filing a reply, respondent students requested through their
counsel, copies of the charges. 28 While some of the students mentioned
in the February 11, 1991 notice duly submitted written statements, the
others failed to do so. Thus, the latter were granted an extension of up to
February 18, 1991 to file their statements. 29
Indubitably, the nature and cause of the accusation were adequately
spelled out in petitioners' notices dated February 14 and 20, 1991. 30 It is
to be noted that the February 20, 1991 letter which quoted Rule No. 3 of
its Rules of Discipline as contained in the Ateneo Law School Catalogue
was addressed individually to respondent students. Petitioners'
notices/letters dated February 11, February 14 and 20 clearly show that
respondent students were given ample opportunity to adduce evidence
in their behalf and to answer the charges leveled against them.
The requisite assistance of counsel was met when, from the very start of
the investigations before the Joint Administration-Faculty-Student
Committee, the law firm of Gonzales Batiller and Bilog and Associates
put in its appearance and filed pleadings in behalf of respondent
students.
Respondent students may not use the argument that since they were not
accorded the opportunity to see and examine the written statements
which became the basis of petitioners' February 14, 1991 order, they
were denied procedural due process. 31 Granting that they were denied
such opportunity, the same may not be said to detract from the
observance of due process, for disciplinary cases involving students
need not necessarily include the right to cross examination. An
administrative proceeding conducted to investigate students'
participation in a hazing activity need not be clothed with the attributes
of a judicial proceeding. A closer examination of the March 2, 1991
hearing which characterized the rules on the investigation as being
summary in nature and that respondent students have no right to
examine affiants-neophytes, reveals that this is but a reiteration of our
previous ruling in Alcuaz. 32
Respondent students' contention that the investigating committee failed
to consider their evidence is far from the truth because the February 14,
1992 order clearly states that it was reached only after receiving the
written statements and hearing the testimonies of several
witnesses. 33 Similarly, the Disciplinary Board's resolution dated March
10, 1991 was preceded by a hearing on March 2, 1991 wherein
respondent students were summoned to answer clarificatory questions. prcd

With regard to the charge of hazing, respondent students fault

petitioners for not explicitly defining the word "hazing" and allege that
there is no proof that they were furnished copies of the 1990-91 Ateneo
Law School Catalogue which prohibits hazing. Such flawed sophistry is
not worthy of students who aspire to be future members of the Bar. It
cannot be over-emphasized that the charge filed before the Joint
Administration-Faculty-Student Investigating Committee and the
Disciplinary Board is not a criminal case requiring proof beyond
reasonable doubt but is merely administrative in character. As such, it is
not subject to the rigorous requirements of criminal due process,
particularly with respect to the specification of the charge involved. As
we have had occasion to declare in previous cases of a similar nature,
due process in disciplinary cases involving students does not entail
proceedings and hearings identical to those prescribed for actions and
proceedings in courts of justice. 34Accordingly, disciplinary charges
against a student need not be drawn with the precision of a criminal
information or complaint. Having given prior notice to the students
involved that "hazing" which is not defined in the School Catalogue shall
be defined in accordance with Senate Bill No. 3815, the proposed bill on
the subject of Sen. Jose Lina, petitioners have said what needs to be
said. We deem this sufficient for purposes of the investigation under
scrutiny.
Hazing, as a ground for disciplining a student, to the extent of dismissal
or expulsion, finds its raison d' etre in the increasing frequency of injury,
even death, inflicted upon the neophytes by their insensate "masters."
Assuredly, it passes the test of reasonableness and absence of malice on
the part of the school authorities. Far from fostering comradeship
and esprit d' corps, it has merely fed upon the cruel and baser instincts
of those who aspire to eventual leadership in our country.
Respondent students argue that petitioners are not in a position to file
the instant petition under Rule 65 considering that they failed to file a
motion for reconsideration first before the trial court, thereby bypassing
the latter and the Court of Appeals. 3 5
It is accepted legal doctrine that an exception to the doctrine of
exhaustion of remedies is when the case involves a question of law, 36 as
in this case, where the issue is whether or not respondent students have
been afforded procedural due process prior to their dismissal from
petitioner university.
Lastly, respondent students argue that we erred in issuing a Temporary
Restraining Order since petitioners do not stand to suffer irreparable
damage in the event that private respondents are allowed to re-enroll. No
one can be so myopic as to doubt that the immediate reinstatement of
respondent students who have been investigated and found by the
Disciplinary Board to have violated petitioner university's disciplinary
rules and standards will certainly undermine the authority of the
administration of the school. This we would be most loathe to do.
More importantly, it will seriously impair petitioner university's academic
freedom which has been enshrined in the 1935, 1973 and the present
1987 Constitutions.
At this juncture, it would be meet to recall the essential freedoms
subsumed by Justice Felix Frankfurter in the term "academic freedom"
cited in the case of Sweezy v. New Hampshire, 37 thus: (1) who may
teach; (2) what may be taught; (3) how it shall be taught; and (4) who
may be admitted to study. LibLex

Socrates, the "first of the great moralists of Greece," proud to claim the
title "gadfly of the State," has deservedly earned for himself a respected
place in the annals of history as a martyr to the cause of free intellectual
inquiry. To Plato, this great teacher of his was the "best, the most
sensible, and the most just man of his age." In 399 B.C., he willingly
quaffed the goblet of hemlock as punishment for alleged "corruption" of
the youth of Athens. He describes in his own words how this charge of
"corruption," the forerunner of the concept of academic freedom, came
about:
"Young men of the richer classes, who have not much to do, come
about me of their own accord: they like to hear the pretenders
examined, and they often imitate me, and examine others
themselves; there are plenty of persons, as they soon discover,
who think that they know something, but really know little or
nothing; and then those who are examined by them, instead of
being angry with themselves are angry with me. This confounded
Socrates, they say; this villainous misleader of youth. And then if
somebody asks them, Why, what evil does he practice or teach?
they do not know, and cannot tell; but in order that they may not
appear to be at a loss, they repeat the ready-made charges which
are used against all philosophers about teaching things up in the
clouds and under the earth, and having no gods, and making the
worse appear the better cause; for they do not like to confess that
their pretense of knowledge has been detected — which is the
truth; and as they are numerous and ambitious and energetic, and
are all in battle array and have persuasive tongues, they have filled
your ears with their loud and inveterate calumnies." 38
Since Socrates, numberless individuals of the same heroic mold have
similarly defied the stifling strictures of authority, whether State, Church,
or various interest groups, to be able to give free rein to their ideas.
Particularly odious were the insidious and blatant attempts at thought
control during the time of the Inquisition until even the Medieval
universities, renowned as intellectual centers in Europe, gradually lost
their autonomy.
In time, such noble strivings, gathering libertarian encrustations along
the way, were gradually crystallized in the cluster of freedoms which
awaited the champions and martyrs of the dawning modern age. This was
exemplified by the professors of the new German universities in the 16th
and 17th centuries such as the Universities of Leiden (1575), Helmstadt
(1574) and Heidelberg (1652). The movement back to freedom of inquiry
gained adherents among the exponents of fundamental human rights of
the 19th and 20th centuries. "Academic freedom", the term as it evolved
to describe the emerging rights related to intellectual liberty, has
traditionally been associated with freedom of thought, speech,
expression and the press; in other words, with the right of individuals in
university communities, such as professors, researchers and
administrators, to investigate, pursue, discuss and, in the immortal words
of Socrates, "to follow the argument wherever it may lead," free from
internal and external interference or pressure.
But obviously, its optimum impact is best realized where the freedom is
exercised judiciously and does not degenerate into unbridled license.
Early cases on this individual aspect of academic freedom have stressed
the need for assuring to such individuals a measure of independence
through the guarantees of autonomy and security of tenure. The
components of this aspect of academic freedom have been categorized
under the areas of: (1) who may teach and (2) how to teach.
It is to be realized that this individual aspect of academic freedom could
have developed only pari passu with its institutional counterpart. As
corporate entities, educational institutions of higher learning are
inherently endowed with the right to establish their policies, academic
and otherwise, unhampered by external controls or pressure. In
the Frankfurter formulation, this is articulated in the areas of: (1) what
shall be taught, e.g., the curriculum and (2) who may be admitted to
study.
In the Philippines, the Acts which were passed with the change of
sovereignty from the Spanish to the American government, namely, the
Philippine Bill of 1902 and the Philippine Autonomy Act of 1916 made no
mention of the rights now subsumed under the catch-all term of
"academic freedom." This is most especially true with respect to the
institutional aspect of the term. It had to await the drafting of the
Philippine Constitutions to be recognized as deserving of legal
protection.
The breakthrough for the concept itself was found in Section 5 of
the 1935 Constitution which stated: "Universities established by the
State shall enjoy academic freedom." The only State university at that
time, being the University of the Philippines, the Charter was perceived
by some as exhibiting rank favoritism for the said institution at the
expense of the rest.prcd

In an attempt to broaden the coverage of the provision, the 1973

Constitution provided in its Section 8 (2): "All institutions of higher
learning shall enjoy academic freedom." In his interpretation of the
provision, former U.P. President Vicente G. Sinco, who was also a
delegate to the 1971 Constitutional Convention, declared that it
"definitely grants the right of academic freedom to the University as an
institution as distinguished from the academic freedom of a university
professor." 39
Has the right been carried over to the present Constitution? In an
attempt to give an explicit definition with an expanded coverage, the
Commissioners of the Constitutional Commission of 1986 came up with
this formulation: "Academic freedom shall be enjoyed by students, by
teachers, and by researchers." After protracted debate and ringing
speeches, the final version which was none too different from the way it
was couched in the previous two (2) Constitutions, as found in Article
XIV, Section 5 (2) states: "Academic freedom shall be enjoyed in all
institutions of higher learning." In anticipation of the question as to
whether and what aspects of academic freedom are included herein,
ConCom Commissioner Adolfo S. Azcuna explained: "Since academic
freedom is a dynamic concept, we want to expand the frontiers of
freedom, especially in education, therefore, we shall leave it to the
courts to develop further the parameters of academic freedom." 40
More to the point, Commissioner Jose Luis Martin C. Gascon asked:
"When we speak of the sentence 'academic freedom shall be enjoyed in
all institutions of higher learning,' do we mean that academic freedom
shall be enjoyed by the institution itself?" Azcuna replied: "Not only that,
it also includes . . ." Gascon finished off the broken thought, — "the
faculty and the students." Azcuna replied: "Yes."
Since Garcia v. Loyola School of Theology, 41 we have consistently upheld
the salutary proposition that admission to an institution of higher
learning is discretionary upon a school, the same being a privilege on the
part of the student rather than a right. While under the Education Act of
1982, students have a right "to freely choose their field of study, subject
to existing curricula and to continue their course therein up to
graduation," such right is subject, as all rights are, to the established
academic and disciplinary standards laid down by the academic
institution. 42
"For private schools have the right to establish reasonable rules and
regulations for the admission, discipline and promotion of students. This
right . . . extends as well to parents . . . as parents are under a social and
moral (if not legal) obligation, individually and collectively, to assist and
cooperate with the schools." 43
Such rules are "incident to the very object of incorporation and
indispensable to the successful management of the college. The rules
may include those governing student discipline." 44 Going a step further,
the establishment of rules governing university-student relations,
particularly those pertaining to student discipline, may be regarded as
vital, not merely to the smooth and efficient operation of the institution,
but to its very survival.

Within memory of the current generation is the eruption of militancy in

the academic groves as collectively, the students demanded and plucked
for themselves from the panoply of academic freedom their own rights
encapsulized under the rubric of "right to education" forgetting that, in
Hohfeldian terms, they have a concomitant duty, and that is, their duty to
learn under the rules laid down by the school.
Considering that respondent students are proud to claim as their own a
Christian school that includes Theology as part of its curriculum and
assiduously strives to turn out individuals of unimpeachable morals and
integrity in the mold of the founder of the order of the Society of Jesus,
St. Ignatius of Loyola, and their God-fearing forbears, their barbaric and
ruthless acts are the more reprehensible. It must be borne in mind that
universities are established, not merely to develop the intellect and skills
of the studentry, but to inculcate lofty values, ideals and attitudes; nay,
the development, or flowering if you will, of the total man.
In essence, education must ultimately be religious — not in the sense
that the founders or charter members of the institution are sectarian or
profess a religious ideology. Rather, a religious education, as the
renowned philosopher Alfred North Whitehead said, is "an education
which inculcates duty and reverence." 45 It appears that the particular
brand of religious education offered by the Ateneo de Manila University
has been lost on the respondent students.
Certainly, they do not deserve to claim such a venerable institution as
the Ateneo de Manila University as their own a minute longer, for they
may foreseeably cast a malevolent influence on the students currently
enrolled, as well as those who come after them. cdphil

Quite applicable to this case is our pronouncement in Yap Chin Fah v.

Court of Appeals that: "The maintenance of a morally conducive and
orderly educational environment will be seriously imperilled if, under the
circumstances of this case, Grace Christian is forced to admit
petitioner's children and to reintegrate them to the student
body." 46 Thus, the decision of petitioner university to expel them is but
congruent with the gravity of their misdeeds. That there must be such a
congruence between the offense committed and the sanction imposed
was stressed in Malabanan v. Ramento. 47
Having carefully reviewed the records and the procedure followed by
petitioner university, we see no reason to reverse its decision founded on
the following undisputed facts: that on February 8, 9 and 10, 1991, the
Aquila Legis Fraternity conducted hazing activities; that respondent
students were present at the hazing as auxiliaries, and that as a result of
the hazing, Leonardo Villa died from serious physical injuries, while
Bienvenido Marquez was hospitalized. In light of the vicious acts of
respondent students upon those whom ironically they would claim as
"brothers" after the initiation rites, how can we countenance the
imposition of such nominal penalties as reprimand or even suspension?
We, therefore, affirm petitioners' imposition of the penalty of dismissal
upon respondent students. This finds authority and justification in
Section 146 of the Manual of Regulations for Private Schools. 48
WHEREFORE, the instant petition is GRANTED; the order of respondent
Judge dated May 17, 1991 reinstating respondent students into petitioner
university is hereby REVERSED. The resolution of petitioner Joaquin
Bernas S. J., then President of Ateneo de Manila University dated March
10, 1991, is REINSTATED and the decision of the Special Board
DISMISSING respondent students ADEL ABAS and ZOSIMO MENDOZA
dated May 20, 1991 is hereby AFFIRMED.
SO ORDERED.
(Ateneo De Manila University v. Capulong, G.R. No. 99327, [May 27,
|||

1993])
 [G.R. No. 178552. October 5, 2010.]

SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on

behalf of the South-South Network (SSN) for Non-State Armed
Group Engagement, and ATTY. SOLIMAN M. SANTOS,
JR., petitioners, vs. ANTI-TERRORISM COUNCIL, THE
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF
NATIONAL DEFENSE, THE SECRETARY OF THE INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF FINANCE, THE
NATIONAL SECURITY ADVISER, THE CHIEF OF STAFF OF THE
ARMED FORCES OF THE PHILIPPINES, AND THE CHIEF OF
THE PHILIPPINE NATIONAL POLICE, respondents.

[G.R. No. 178554. October 5, 2010.]

KILUSANG MAYO UNO (KMU), represented by its Chairperson

Elmer Labog, NATIONAL FEDERATION OF LABOR UNIONS-
KILUSANG MAYO UNO (NAFLU-KMU), represented by its
National President Joselito V. Ustarez and Secretary General
Antonio C. Pascual, and CENTER FOR TRADE UNION AND
HUMAN RIGHTS, represented by its Executive Director Daisy
Arago, petitioners, vs. HON. EDUARDO ERMITA, in his
capacity as Executive Secretary, NORBERTO GONZALES, in
his capacity as Acting Secretary of National Defense, HON.
RAUL GONZALES, in his capacity as Secretary of Justice,
HON. RONALDO PUNO, in his capacity as Secretary of the
Interior and Local Government, GEN. HERMOGENES
ESPERON, in his capacity as AFP Chief of Staff, and
DIRECTOR GENERAL OSCAR CALDERON, in his capacity as
PNP Chief of Staff, respondents.

[G.R. No. 178581. October 5, 2010.]

BAGONG ALYANSANG MAKABAYAN (BAYAN), GENERAL
ALLIANCE BINDING WOMEN FOR REFORMS, INTEGRITY,
EQUALITY, LEADERSHIP AND ACTION (GABRIELA), KILUSANG
MAGBUBUKID NG PILIPINAS (KMP), MOVEMENT OF
CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL),
CONFEDERATION FOR UNITY, RECOGNITION AND
ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE),
KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY),
SOLIDARITY OF CAVITE WORKERS, LEAGUE OF FILIPINO
STUDENTS (LFS), ANAKBAYAN, PAMBANSANG LAKAS NG
KILUSANG MAMAMALAKAYA (PAMALAKAYA), ALLIANCE OF
CONCERNED TEACHERS (ACT), MIGRANTE, HEALTH
ALLIANCE FOR DEMOCRACY (HEAD), AGHAM, TEOFISTO
GUINGONA, JR., DR. BIENVENIDO LUMBERA, RENATO
CONSTANTINO, JR., SISTER MARY JOHN MANANSAN OSB,
DEAN CONSUELO PAZ, ATTY. JOSEFINA LICHAUCO, COL.
GERRY CUNANAN (ret.), CARLITOS SIGUION-REYNA, DR.
CAROLINA PAGADUAN-ARAULLO, RENATO REYES, DANILO
RAMOS, EMERENCIANA DE LESUS, RITA BAUA, REY CLARO
CASAMBRE, petitioners, vs. GLORIA MACAPAGAL-ARROYO, in
her capacity as President and Commander-in-Chief,
EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF
JUSTICE SECRETARY RAUL GONZALES, DEPARTMENT OF
FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO,
DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY
NORBERTO GONZALES, DEPARTMENT OF THE INTERIOR AND
LOCAL GOVERNMENT SECRETARY RONALDO PUNO,
DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES,
NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE
NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA),
THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE
BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE,
THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE
PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING
COUNCIL (AMLC), THE PHILIPPINE CENTER ON
TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP,
including its intelligence and investigative elements, AFP
CHIEF GEN. HERMOGENES ESPERON, respondents.

[G.R. No. 178890. October 5, 2010.]

KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF

PEOPLE'S RIGHTS, represented herein by Dr. Edelina de la
Paz, and representing the following organizations: HUSTISYA,
represented by Evangeline Hernandez and also on her own
behalf; DESAPARECIDOS, represented by Mary Guy Portajada
and also on her own behalf, SAMAHAN NG MGA EX-
DETAINEES LABAN SA DETENSYON AT PARA SA AMNESTIYA
(SELDA), represented by Donato Continente and also on his
own behalf, ECUMENICAL MOVEMENT FOR JUSTICE AND
PEACE (EMJP), represented by Bishop Elmer M. Bolocon,
UCCP, and PROMOTION OF CHURCH PEOPLE'S RESPONSE,
represented by Fr. Gilbert Sabado, OCARM ,
petitioners, vs. GLORIA MACAPAGAL-ARROYO, in her capacity
as President and Commander-in-Chief, EXECUTIVE
SECRETARTY EDUARDO ERMITA, DEPARTMENT OF JUSTICE
SECRETARY RAUL GONZALEZ, DEPARTMENT OF FOREIGN
AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF
NATIONAL DEFENSE ACTING SECRETARY NORBERTO
GONZALES, DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT SECRETARY RONALDO PUNO, DEPARTMENT
OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL
SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL
INTELLIGENCE COORDINATING AGENCY (NICA), THE
NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU
OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE
INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE
PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING
COUNCIL (AMLC), THE PHILIPPINE CENTER ON
TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP,
including its intelligence and investigative elements, AFP
CHIEF GEN. HERMOGENES ESPERON, respondents.

[G.R. No. 179157. October 5, 2010.]

THE INTEGRATED BAR OF THE PHILIPPINES (IBP),

represented by Atty. Feliciano M. Bautista, COUNSELS FOR
THE DEFENSE OF LIBERTY (CODAL), SEN. MA. ANA
CONSUELO A.S. MADRIGAL and FORMER SENATORS SERGIO
OSMEÑA III and WIGBERTO E. TAÑADA,
petitioners, vs. EXECUTIVE SECRETARY EDUARDO ERMITA
AND THE MEMBERS OF THE ANTI-TERRORISM COUNCIL
(ATC), respondents.

[G.R. No. 179461. October 5, 2010.]

BAGONG ALYANSANG MAKABAYAN-SOUTHERN TAGALOG
(BAYAN-ST), GABRIELA-ST, KATIPUNAN NG MGA SAMAHANG
MAGSASAKA-TIMOG KATAGALUGAN (KASAMA-TK),
MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES
(MCCCL), PEOPLES MARTYRS, ANAKBAYAN-ST, PAMALAKAYA-
ST, CONFEDERATION FOR UNITY, RECOGNITION AND
ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE-
ST), PAGKAKAISA'T UGNAYAN NG MGA MAGBUBUKID SA
LAGUNA (PUMALAG), SAMAHAN NG MGA MAMAMAYAN SA
TABING RILES (SMTR-ST), LEAGUE OF FILIPINO STUDENTS
(LFS), BAYAN MUNA-ST, KONGRESO NG MGA MAGBUBUKID
PARA SA REPORMANG AGRARYO KOMPRA, BIGKIS AT LAKAS
NG MGA KATUTUBO SA TIMOG KATAGALUGAN (BALATIK),
SAMAHAN AT UGNAYAN NG MGA MAGSASAKANG
KABABAIHAN SA TIMOG KATAGALUGAN (SUMAMAKA-TK),
STARTER, LOSÑOS RURAL POOR ORGANIZATION FOR
PROGRESS & EQUALITY, CHRISTIAN NIÑO LAJARA,
TEODORO REYES, FRANCESCA B. TOLENTINO, JANNETTE E.
BARRIENTOS, OSCAR T. LAPIDA, JR., DELFIN DE CLARO,
SALLY P. ASTRERA, ARNEL SEGUNE BELTRAN,
petitioners, vs. GLORIA MACAPAGAL-ARROYO, in her capacity
as President and Commander-in-Chief, EXECUTIVE
SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE
SECRETARY RAUL GONZALEZ, DEPARTMENT OF FOREIGN
AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF
NATIONAL DEFENSE ACTING SECRETARY NORBERTO
GONZALES, DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT SECRETARY RONALDO PUNO, DEPARTMENT
OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL
SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL
INTELLIGENCE COORDINATING AGENCY (NICA), THE
NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU
OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE
INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE
PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING
COUNCIL (AMLC), THE PHILIPPINE CENTER ON
TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP,
including its intelligence and investigative elements, AFP
CHIEF GEN. HERMOGENES ESPERON, respondents.

DECISION
CARPIO MORALES, J : p

Before the Court are six petitions challenging the

constitutionality of Republic Act No. 9372 (RA 9372), "An Act to Secure
the State and Protect our People from Terrorism," otherwise known as
the Human Security Act of 2007, 1 signed into law on March 6, 2007.
Following the effectivity of RA 9372 on July 15, 2007, 2 petitioner
Southern Hemisphere Engagement Network, Inc., a non-government
organization, and Atty. Soliman Santos, Jr., a concerned citizen,
taxpayer and lawyer, filed a petition for certiorari and prohibition on
July 16, 2007 docketed as G.R. No. 178552. On even date, petitioners
Kilusang Mayo Uno (KMU), National Federation of Labor Unions-
Kilusang Mayo Uno (NAFLU-KMU), and Center for Trade Union and
Human Rights (CTUHR), represented by their respective officers 3 who
are also bringing the action in their capacity as citizens, filed a
petition for certiorari and prohibition docketed as G.R. No. 178554.
The following day, July 17, 2007, organizations Bagong Alyansang
Makabayan (BAYAN), General Alliance Binding Women for Reforms,
Integrity, Equality, Leadership and Action (GABRIELA), Kilusang
Magbubukid ng Pilipinas (KMP), Movement of Concerned Citizens for
Civil Liberties (MCCCL), Confederation for Unity, Recognition and
Advancement of Government Employees (COURAGE), Kalipunan ng
Damayang Mahihirap (KADAMAY), Solidarity of Cavite Workers (SCW),
League of Filipino Students (LFS), Anakbayan, Pambansang Lakas ng
Kilusang Mamamalakaya (PAMALAKAYA), Alliance of Concerned
Teachers (ACT), Migrante, Health Alliance for Democracy (HEAD), and
Agham, represented by their respective officers, 4 and joined by
concerned citizens and taxpayers Teofisto Guingona, Jr., Dr.
Bienvenido Lumbera, Renato Constantino, Jr., Sister Mary John
Manansan, OSB, Dean Consuelo Paz, Atty. Josefina Lichauco, Retired
Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina Pagaduan-
Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita
Baua and Rey Claro Casambre filed a petition for certiorari and
prohibition docketed as G.R. No. 178581.
On August 6, 2007, Karapatan and its alliance member
organizations Hustisya, Desaparecidos, Samahan ng mga Ex-Detainees
Laban sa Detensyon at para sa Amnestiya (SELDA), Ecumenical
Movement for Justice and Peace (EMJP), and Promotion of Church
People's Response (PCPR), which were represented by their respective
officers 5 who are also bringing action on their own behalf, filed a
petition for certiorari and prohibition docketed as G.R. No. 178890.cCEAHT

On August 29, 2007, the Integrated Bar of the Philippines (IBP),

Counsels for the Defense of Liberty (CODAL), 6 Senator Ma. Ana
Consuelo A.S. Madrigal, Sergio Osmeña III, and Wigberto E. Tañada
filed a petition for certiorari and prohibition docketed as G.R. No.
179157.
Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST),
other regional chapters and organizations mostly based in the
Southern Tagalog Region, 7 and individuals 8 followed suit by filing on
September 19, 2007 a petition for certiorari and prohibition docketed
as G.R. No. 179461 that replicates the allegations raised in the BAYAN
petition in G.R. No. 178581.
Impleaded as respondents in the various petitions are the Anti-
Terrorism Council 9 composed of, at the time of the filing of the
petitions, Executive Secretary Eduardo Ermita as Chairperson, Justice
Secretary Raul Gonzales as Vice Chairperson, and Foreign Affairs
Secretary Alberto Romulo, Acting Defense Secretary and National
Security Adviser Norberto Gonzales, Interior and Local Government
Secretary Ronaldo Puno, and Finance Secretary Margarito Teves as
members. All the petitions, except that of the IBP, also impleaded
Armed Forces of the Philippines (AFP) Chief of Staff Gen. Hermogenes
Esperon and Philippine National Police (PNP) Chief Gen. Oscar
Calderon.
The Karapatan, BAYAN and BAYAN-ST petitions likewise
impleaded President Gloria Macapagal-Arroyo and the support
agencies for the Anti-Terrorism Council like the National Intelligence
Coordinating Agency, National Bureau of Investigation, Bureau of
Immigration, Office of Civil Defense, Intelligence Service of the AFP,
Anti-Money Laundering Center, Philippine Center on Transnational
Crime, and the PNP intelligence and investigative elements.
The petitions fail.
Petitioners' resort to
certiorari is improper

Preliminarily, certiorari does not lie against respondents who do

not exercise judicial or quasi-judicial functions. Section 1, Rule 65 of
the Rules of Court is clear:
Section 1. Petition for certiorari. — When any tribunal, board
or officer exercising judicial or quasi-judicial functions has acted
without or in excess of its or his jurisdiction, or with grave abuse
of discretion amounting to lack or excess of jurisdiction, and there
is no appeal, nor any plain, speedy, and adequate remedy in the
ordinary course of law, a person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or officer, and
 granting such incidental reliefs as law and justice may require.
(Emphasis and underscoring supplied)
Parenthetically, petitioners do not even allege with any modicum of
particularity how respondents acted without or in excess of their
respective jurisdictions, or with grave abuse of discretion amounting
to lack or excess of jurisdiction. 2005cdasia

The impropriety of certiorari as a remedy aside, the petitions fail

just the same.
In constitutional litigations, the power of judicial review is limited
by four exacting requisites, viz.: (a) there must be an actual case or
controversy; (b) petitioners must possess locus standi; (c) the
question of constitutionality must be raised at the earliest
opportunity; and (d) the issue of constitutionality must be the lis
mota of the case. 10
In the present case, the dismal absence of the first two
requisites, which are the most essential, renders the discussion of the
last two superfluous.
Petitioners lack locus
standi

Locus standi or legal standing requires a personal stake in the

outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional questions. 11
Anak Mindanao Party-List Group v. The Executive
Secretary 12 summarized the rule on locus standi, thus:
Locus standi or legal standing has been defined as a personal
and substantial interest in a case such that the party has
sustained or will sustain direct injury as a result of the
governmental act that is being challenged. The gist of the question
on standing is whether a party alleges such personal stake in the
outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon
which the court depends for illumination of difficult constitutional
questions.
[A] party who assails the constitutionality of a statute must
have a direct and personal interest. It must show not only that the
law or any governmental act is invalid, but also that it sustained or
is in immediate danger of sustaining some direct injury as a result
of its enforcement, and not merely that it suffers thereby in some
indefinite way. It must show that it has been or is about to be
denied some right or privilege to which it is lawfully entitled or
 that it is about to be subjected to some burdens or penalties by
reason of the statute or act complained of.
For a concerned party to be allowed to raise a constitutional
question, it must show that (1) it has personally suffered some
actual or threatened injury as a result of the allegedly illegal
conduct of the government, (2) the injury is fairly traceable to the
challenged action, and (3) the injury is likely to be redressed by a
favorable action. (emphasis and underscoring supplied.)
Petitioner-organizations assert locus standi on the basis of being
suspected "communist fronts" by the government, especially the
military; whereas individual petitioners invariably invoke the
"transcendental importance" doctrine and their status as citizens and
taxpayers.
While Chavez v. PCGG 13 holds that transcendental public
importance dispenses with the requirement that petitioner has
experienced or is in actual danger of suffering direct and personal
injury, cases involving the constitutionality of penal legislation belong
to an altogether different genus of constitutional litigation. Compelling
State and societal interests in the proscription of harmful conduct, as
will later be elucidated, necessitate a closer judicial scrutiny of locus
standi.
Petitioners have not presented any personal stake in the
outcome of the controversy. None of them faces any charge under RA
9372.
KARAPATAN, Hustisya, Desaparecidos, SELDA,
EMJP and PCR, petitioners in G.R. No. 178890, allege that they have
been subjected to "close security surveillance by state security
forces," their members followed by "suspicious persons" and "vehicles
with dark windshields," and their offices monitored by "men with
military build." They likewise claim that they have been branded as
"enemies of the [S]tate." 14
Even conceding such gratuitous allegations, the Office of the
Solicitor General (OSG) correctly points out that petitioners have yet
to show any connection between the purported "surveillance"
and the implementation of RA 9372.
BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS,
Anakbayan, PAMALAKAYA, ACT, Migrante, HEAD and Agham, petitioner-
organizations in G.R. No. 178581, would like the Court to take judicial
notice of respondents' alleged action of tagging them as militant
organizations fronting for the Communist Party of the Philippines (CPP)
and its armed wing, the National People's Army (NPA). The tagging,
according to petitioners, is tantamount to the effects of proscription
without following the procedure under the law. 15 The petition
of BAYAN-ST, et al. in G.R. No. 179461 pleads the same allegations.
The Court cannot take judicial notice of the alleged "tagging" of
petitioners.
Generally speaking, matters of judicial notice have three
material requisites: (1) the matter must be one of common and
general knowledge; (2) it must bewell and authoritatively
settled and not doubtful or uncertain; and (3) it must be known to
be within the limits of the jurisdiction of the court. The principal
guide in determining what facts may be assumed to be judicially
known is that of notoriety. Hence, it can be said that judicial notice
is limited to facts evidenced by public records and facts of general
notoriety. Moreover, a judicially noticed fact must be one not
subject to a reasonable dispute in that it is either: (1) generally
knownwithin the territorial jurisdiction of the trial
court; or (2) capable of accurate and ready determination by
resorting to sources whose accuracy cannot reasonably be
questionable.
Things of "common knowledge," of which courts take judicial
matters coming to the knowledge of men generally in the course of
the ordinary experiences of life, or they may be matters which are
generally accepted by mankind as true and are capable of ready
and unquestioned demonstration. Thus, facts which are universally
known, and which may be found in encyclopedias, dictionaries or
other publications, are judicially noticed, provided, they are of
such universal notoriety and so generally understood that they may
be regarded as forming part of the common knowledge of every
person. As the common knowledge of man ranges far and wide, a
wide variety of particular facts have been judicially noticed as
being matters of common knowledge. But a court cannot take
judicial notice of any fact which, in part, is dependent on the
existence or non-existence of a fact of which the court has no
constructive knowledge. 16 (emphasis and underscoring supplied.)
No ground was properly established by petitioners for the taking of
judicial notice. Petitioners' apprehension is insufficient to substantiate
their plea. That no specific charge or proscription under RA 9372 has
been filed against them, three years after its effectivity, belies any
claim of imminence of their perceived threat emanating from the so-
called tagging. cHCIEA

The same is true with petitioners KMU, NAFLU and CTUHR in G.R.
No. 178554, who merely harp as well on their supposed "link" to the
CPP and NPA. They fail to particularize how the implementation of
specific provisions of RA 9372 would result in direct injury to their
organization and members.
 While in our jurisdiction there is still no judicially declared
terrorist organization, the United States of America 17 (US) and the
European Union 18 (EU) have both classified the CPP, NPA and Abu
Sayyaf Group as foreign terrorist organizations. The Court takes note
of the joint statement of Executive Secretary Eduardo Ermita and
Justice Secretary Raul Gonzales that the Arroyo Administration would
adopt the US and EU classification of the CPP and NPA as terrorist
organizations. 19 Such statement notwithstanding, there is yet to be
filed before the courts an application to declare the CPP and NPA
organizations as domestic terrorist or outlawed organizations
under RA 9372. Again, RA 9372 has been in effect for three years now.
From July 2007 up to the present, petitioner-organizations have
conducted their activities fully and freely without any threat of, much
less an actual, prosecution or proscription under RA 9372.
Parenthetically, the Fourteenth Congress, in a resolution initiated
by Party-list Representatives Saturnino Ocampo, Teodoro Casiño,
Rafael Mariano and Luzviminda Ilagan, 20 urged the government to
resume peace negotiations with the NDF by removing the impediments
thereto, one of which is the adoption of designation of the CPP and
NPA by the US and EU as foreign terrorist organizations. Considering
the policy statement of the Aquino Administration 21 of resuming peace
talks with the NDF, the government is not imminently disposed to ask
for the judicial proscription of the CPP-NPA consortium and its allied
organizations.
More important, there are other parties not before the Court
with direct and specific interests in the questions being raised. 22 Of
recent development is the filing of the first case for proscription under
Section 17 23 of RA 9372 by the Department of Justice before the
Basilan Regional Trial Court against the Abu
SayyafGroup. 24 Petitioner-organizations do not in the least allege any
link to the Abu Sayyaf Group.
Some petitioners attempt, in vain though, to show the imminence
of a prosecution under RA 9372 by alluding to past rebellion charges
against them.
In Ladlad v. Velasco, 25 the Court ordered the dismissal of
rebellion charges filed in 2006 against then Party-List Representatives
Crispin Beltran and Rafael Mariano of Anakpawis, Liza Maza of
GABRIELA, and Joel Virador, Teodoro Casiño and Saturnino Ocampo
of Bayan Muna. Also named in the dismissed rebellion charges were
petitioners Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato
Reyes, Rita Baua, Emerencia de Jesus and Danilo Ramos; and accused
of being front organizations for the Communist movement were
petitioner-organizations KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP,
KADAMAY, LFS and COURAGE. 26
The dismissed rebellion charges, however, do not save the day for
petitioners. For one, those charges were filed in 2006, prior to the
enactment of RA 9372,and dismissed by this Court. For another,
rebellion is defined and punished under the Revised Penal Code.
Prosecution for rebellion is not made more imminent by the enactment
of RA 9372, nor does the enactment thereof make it easier to charge a
person with rebellion, its elements not having been altered.
Conversely, previously filed but dismissed rebellion charges bear
no relation to prospective charges under RA 9372. It cannot be
overemphasized that three years after the enactment of RA 9372, none
of petitioners has been charged.
Petitioners IBP and CODAL in G.R. No. 179157 base their claim
of locus standi on their sworn duty to uphold the Constitution. The IBP
zeroes in on Section 21 of RA 9372 directing it to render assistance to
those arrested or detained under the law.
The mere invocation of the duty to preserve the rule of law does
not, however, suffice to clothe the IBP or any of its members with
standing. 27 The IBP failed to sufficiently demonstrate how its mandate
under the assailed statute revolts against its constitutional rights and
duties. Moreover, both the IBP and CODAL have not pointed to even a
single arrest or detention effected under RA 9372.
Former Senator Ma. Ana Consuelo Madrigal, who claims to have
been the subject of "political surveillance," also lacks locus
standi. Prescinding from the veracity, let alone legal basis, of the
claim of "political surveillance," the Court finds that she has not
shown even the slightest threat of being charged under RA 9372.
Similarly lacking in locus standi are former Senator Wigberto
Tañada and Senator Sergio Osmeña III, who cite their being
respectively a human rights advocate and an oppositor to the passage
of RA 9372. Outside these gratuitous statements, no concrete injury to
them has been pinpointed. DSHTaC

Petitioners Southern Hemisphere Engagement Network and Atty.

Soliman Santos Jr. in G.R. No. 178552 also conveniently state that the
issues they raise are of transcendental importance, "which must be
settled early" and are of "far-reaching implications," without mention
of any specific provision of RA 9372 under which they have been
charged, or may be charged. Mere invocation of human rights
advocacy has nowhere been held sufficient to clothe litigants
withlocus standi. Petitioners must show an actual, or immediate
danger of sustaining, direct injury as a result of the law's enforcement.
To rule otherwise would be to corrupt the settled doctrine of locus
standi, as every worthy cause is an interest shared by the general
public.
Neither can locus standi be conferred upon individual petitioners
as taxpayers and citizens. A taxpayer suit is proper only when there is
an exercise of the spending or taxing power of Congress, 28 whereas
citizen standing must rest on direct and personal interest in the
proceeding. 29
RA 9372 is a penal statute and does not even provide for any
appropriation from Congress for its implementation, while none of the
individual petitioner-citizens has alleged any direct and personal
interest in the implementation of the law.
It bears to stress that generalized interests, albeit accompanied
by the assertion of a public right, do not establish locus
standi. Evidence of a direct and personal interest is key.
Petitioners fail to
present an actual case or
controversy

By constitutional fiat, judicial power operates only when there is

an actual case or controversy.
Section 1. The judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice
to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality
of the Government. 30 (emphasis and underscoring supplied.)
As early as Angara v. Electoral Commission, 31 the Court ruled
that the power of judicial review is limited to actual cases or
controversies to be exercised after full opportunity of argument by the
parties. Any attempt at abstraction could only lead to dialectics and
barren legal questions and to sterile conclusions unrelated to
actualities.
An actual case or controversy means an existing case or
controversy that is appropriate or ripe for determination, not
conjectural or anticipatory, lest the decision of the court would
amount to an advisory opinion. 32
Information Technology Foundation of the Philippines v.
COMELEC 33 cannot be more emphatic:
 [C]ourts do not sit to adjudicate mere academic questions to
satisfy scholarly interest, however intellectually challenging. The
controversy must be justiciable — definite and concrete, touching
on the legal relations of parties having adverse legal interests. In
other words, the pleadings must show an active antagonistic
assertion of a legal right, on the one hand, and a denial thereof on
the other hand; that is, it must concern a real and not merely a
theoretical question or issue. There ought to be an actual and
substantial controversy admitting of specific relief through a
decree conclusive in nature, as distinguished from an opinion
advising what the law would be upon a hypothetical state of facts.
(Emphasis and underscoring supplied)
Thus, a petition to declare unconstitutional a law converting the
Municipality of Makati into a Highly Urbanized City was held to be
premature as it was tacked on uncertain, contingent
events. 34 Similarly, a petition that fails to allege that an application for
a license to operate a radio or television station has been denied or
granted by the authorities does not present a justiciable controversy,
and merely wheedles the Court to rule on a hypothetical problem. 35

The Court dismissed the petition in Philippine Press Institute v.

Commission on Elections 36 for failure to cite any specific affirmative
action of the Commission on Elections to implement the assailed
resolution. It refused, in Abbas v. Commission on Elections, 37 to rule
on the religious freedom claim of the therein petitioners based merely
on a perceived potential conflict between the provisions of the Muslim
Code and those of the national law, there being no actual controversy
between real litigants.
The list of cases denying claims resting on purely hypothetical or
anticipatory grounds goes on ad infinitum.
The Court is not unaware that a reasonable certainty of the
occurrence of a perceived threat to any constitutional interest
suffices to provide a basis for mounting a constitutional challenge.
This, however, is qualified by the requirement that there must
be sufficient facts to enable the Court to intelligently adjudicate the
issues. 38
Very recently, the US Supreme Court, in Holder v. Humanitarian
Law Project, 39 allowed the pre-enforcement review of a criminal
statute, challenged on vagueness grounds, since plaintiffs faced
a "credible threat of prosecution" and "should not be required to await
and undergo a criminal prosecution as the sole means of seeking
relief." 40 The plaintiffs therein filed an action before a federal court to
assail the constitutionality of the material support statute, 18 U.S.C.
§2339B (a) (1), 41 proscribing the provision of material support to
organizations declared by the Secretary of State as foreign terrorist
organizations. They claimed that theyintended to provide support for
the humanitarian and political activities of two such organizations.
Prevailing American jurisprudence allows an adjudication on the
merits when an anticipatory petition clearly shows that the challenged
prohibition forbids the conduct or activity that a petitioner seeks to
do, as there would then be a justiciable controversy. 42
Unlike the plaintiffs in Holder, however, herein petitioners have
failed to show that the challenged provisions of RA
9372 forbid constitutionally protectedconduct or activity that they
seek to do. No demonstrable threat has been established, much less a
real and existing one.
Petitioners' obscure allegations of sporadic "surveillance" and
supposedly being tagged as "communist fronts" in no way approximate
a credible threat of prosecution. From these allegations, the Court is
being lured to render an advisory opinion, which is not its
function. 43
aCcSDT

Without any justiciable controversy, the petitions have become

pleas for declaratory relief, over which the Court has no original
jurisdiction. Then again, declaratory actions characterized by "double
contingency," where both the activity the petitioners intend to
undertake and the anticipated reaction to it of a public official
are merely theorized, lie beyond judicial review for lack of ripeness. 44
The possibility of abuse in the implementation of RA 9372 does
not avail to take the present petitions out of the realm of the surreal
and merely imagined. Such possibility is not peculiar to RA 9372 since
the exercise of any power granted by law may be
abused. 45 Allegations of abuse must be anchored on real events
before courts may step in to settle actual controversies involving
rights which are legally demandable and enforceable.
A facial invalidation of a
statute is allowed only in free
speech cases, wherein certain
rules of constitutional
litigation are rightly excepted

Petitioners assail for being intrinsically vague and impermissibly

broad the definition of the crime of terrorism 46 under RA 9372 in that
terms like "widespread and extraordinary fear and panic among the
populace" and "coerce the government to give in to an unlawful
demand" are nebulous, leaving law enforcement agencies with no
standard to measure the prohibited acts.
 Respondents, through the OSG, counter that the doctrines of void-
for-vagueness and overbreadth find no application in the present case
since these doctrines apply only to free speech cases; and that RA
9372 regulates conduct, not speech.
For a jurisprudentially guided understanding of these doctrines, it
is imperative to outline the schools of thought on whether the void-for-
vagueness and overbreadth doctrines are equally applicable grounds
to assail a penal statute.
Respondents interpret recent jurisprudence as slanting toward
the idea of limiting the application of the two doctrines to free speech
cases. They particularly cite Romualdez v. Hon.
Sandiganbayan 47 and Estrada v. Sandiganbayan. 48
The Court clarifies.
At issue in Romualdez v. Sandiganbayan was whether the word
"intervene" in Section 5 49 of the Anti-Graft and Corrupt Practices
Act was intrinsically vague and impermissibly broad. The Court stated
that "the overbreadth and the vagueness doctrines have special
application only to free-speech cases," and are "not appropriate for
testing the validity of penal statutes." 50 It added that, at any rate, the
challenged provision, under which the therein petitioner
was charged, is not vague. 51
While in the subsequent case of Romualdez v. Commission on
Elections, 52 the Court stated that a facial invalidation of criminal
statutes is not appropriate, it nonetheless proceeded to conduct a
vagueness analysis, and concluded that the therein subject election
offense 53 under the Voter's Registration Act of 1996, with which the
therein petitioners were charged, is couched in precise language. 54
The two Romualdez cases rely heavily on the Separate
Opinion 55 of Justice Vicente V. Mendoza in the Estrada case, where
the Court found the Anti-Plunder Law (Republic Act No. 7080) clear and
free from ambiguity respecting the definition of the crime of plunder.
The position taken by Justice Mendoza in Estrada relates these
two doctrines to the concept of a "facial" invalidation as opposed to
an "as-applied" challenge. He basically postulated that allegations
that a penal statute is vague and overbroad do not justify a facial
review of its validity. The pertinent portion of the Concurring Opinion
of Justice Mendoza, which was quoted at length in the
main Estrada decision, reads:
A facial challenge is allowed to be made to a vague statute
and to one which is overbroad because of possible "chilling effect"
upon protected speech. The theory is that "[w]hen statutes
regulate or proscribe speech and no readily apparent construction
suggests itself as a vehicle for rehabilitating the statutes in a
single prosecution, the transcendent value to all society of
constitutionally protected expression is deemed to justify allowing
attacks on overly broad statutes with no requirement that the
person making the attack demonstrate that his own conduct could
not be regulated by a statute drawn with narrow specificity." The
possible harm to society in permitting some unprotected speech to
go unpunished is outweighed by the possibility that the protected
speech of others may be deterred and perceived grievances left to
fester because of possible inhibitory effects of overly broad
statutes.
This rationale does not apply to penal statutes. Criminal
statutes have general in terrorem effect resulting from their very
existence, and, if facial challenge is allowed for this reason
alone, the State may well be prevented from enacting laws against
socially harmful conduct. In the area of criminal law, the law
cannot take chances as in the area of free speech.
The overbreadth and vagueness doctrines then have special
application only to free speech cases. They are inapt for testing
the validity of penal statutes. As the U.S. Supreme Court put it, in
an opinion by Chief Justice Rehnquist, "we have not recognized an
'overbreadth' doctrine outside the limited context of the First
Amendment." In Broadrick v. Oklahoma, the Court ruled that
"claims of facial overbreadth have been entertained in cases
involving statutes which, by their terms, seek to regulate only
spoken words" and, again, that "overbreadth claims, if entertained
at all, have been curtailed when invoked against ordinary criminal
laws that are sought to be applied to protected conduct." For this
reason, it has been held that "a facial challenge to a legislative act
is the most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists
under which the Act would be valid." As for the vagueness
doctrine, it is said that a litigant may challenge a statute on its
face only if it is vague in all its possible applications. "A plaintiff
who engages in some conduct that is clearly proscribed cannot
complain of the vagueness of the law as applied to the conduct of
others."
In sum, the doctrines of strict scrutiny, overbreadth, and
vagueness are analytical tools developed for testing "on their
faces" statutes in free speech cases or, as they are called in
American law, First Amendment cases. They cannot be made to do
service when what is involved is a criminal statute. With respect to
such statute, the established rule is that "one to whom application
of a statute is constitutional will not be heard to attack the statute
on the ground that impliedly it might also be taken as applying to
other persons or other situations in which its application might be
unconstitutional." As has been pointed out, "vagueness challenges
 in the First Amendment context, like overbreadth challenges
typically produce facial invalidation, while statutes found vague as
a matter of due process typically are invalidated [only] 'as applied'
to a particular defendant." Consequently, there is no basis for
petitioner's claim that this Court review the Anti-Plunder Law on
its face and in its entirety.
Indeed, "on its face" invalidation of statutes results in
striking them down entirely on the ground that they might be
applied to parties not before the Court whose activities are
constitutionally protected. It constitutes a departure from the
case and controversy requirement of the Constitution and permits
decisions to be made without concrete factual settings and in
sterile abstract contexts. But, as the U.S. Supreme Court pointed
out in Younger v. Harris:
[T]he task of analyzing a proposed statute, pinpointing
its deficiencies, and requiring correction of these
deficiencies before the statute is put into effect, is rarely if
ever an appropriate task for the judiciary. The combination of
the relative remoteness of the controversy, the impact on the
legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-by-line
analysis of detailed statutes, . . . ordinarily results in a kind of
case that is wholly unsatisfactory for deciding constitutional
questions, whichever way they might be decided.
For these reasons, "on its face" invalidation of statutes has
been described as "manifestly strong medicine," to be employed
"sparingly and only as a last resort," and is generally disfavored. In
determining the constitutionality of a statute, therefore, its
provisions which are alleged to have been violated in a case must
be examined in the light of the conduct with which the defendant
is charged. 56 (Underscoring supplied.)
The confusion apparently stems from the interlocking relation of
the overbreadth and vagueness doctrines as grounds for a facial or as-
applied challenge against a penal statute (under a claim of violation of
due process of law) or a speech regulation (under a claim of
abridgement of the freedom of speech and cognate rights).
To be sure, the doctrine of vagueness and the doctrine of
overbreadth do not operate on the same plane.
A statute or act suffers from the defect of vagueness when it
lacks comprehensible standards that men of common intelligence
must necessarily guess at its meaning and differ as to its application.
It is repugnant to the Constitution in two respects: (1) it violates due
process for failure to accord persons, especially the parties targeted
by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers
unbridled discretion in carrying out its provisions and becomes an
arbitrary flexing of the Government
muscle. 57 The overbreadth doctrine, meanwhile, decrees that a
governmental purpose to control or prevent activities constitutionally
subject to state regulations may not be achieved by means which
sweep unnecessarily broadly and thereby invade the area of protected
freedoms. 58 DCcIaE

As distinguished from the vagueness doctrine, the overbreadth

doctrine assumes that individuals will understand what a statute
prohibits and will accordingly refrain from that behavior, even though
some of it is protected. 59
A “facial— challenge is likewise different from an “as-applied—
challenge.
Distinguished from an as-applied challenge which considers
only extant facts affecting real litigants, a facial invalidation is an
examination of the entire law, pinpointing its flaws and defects, not
only on the basis of its actual operation to the parties, but also on the
assumption or prediction that its very existence may cause others not
before the court to refrain from constitutionally protected speech or
activities. 60
Justice Mendoza accurately phrased the subtitle 61 in his
concurring opinion that the vagueness and overbreadth doctrines, as
grounds for a facial challenge, are not applicable to penal laws. A
litigant cannot thus successfully mount a facial challenge against a
criminal statute on either vagueness or overbreadth grounds.
The allowance of a facial challenge in free speech cases is
justified by the aim to avert the "chilling effect" on protected speech,
the exercise of which should not at all times be abridged. 62 As
reflected earlier, this rationale is inapplicable to plain penal statutes
that generally bear an " in terrorem effect" in deterring socially
harmful conduct. In fact, the legislature may even forbid and penalize
acts formerly considered innocent and lawful, so long as it refrains
from diminishing or dissuading the exercise of constitutionally
protected rights. 63
The Court reiterated that there are "critical limitations by which
a criminal statute may be challenged" and "underscored that an 'on-
its-face' invalidation of penal statutes . . . may not be allowed." 64
[T]he rule established in our jurisdiction is, only statutes on
free speech, religious freedom, and other fundamental rights may
be facially challenged. Under no case may ordinary penal statutes
be subjected to a facial challenge. The rationale is obvious. If a
facial challenge to a penal statute is permitted, the prosecution of
 crimes may be hampered. No prosecution would be possible. A
strong criticism against employing a facial challenge in the case of
penal statutes, if the same is allowed, would effectively go against
the grain of the doctrinal requirement of an existing and concrete
controversy before judicial power may be appropriately exercised.
A facial challenge against a penal statute is, at best, amorphous
and speculative. It would, essentially, force the court to consider
third parties who are not before it. As I have said in my opposition
to the allowance of a facial challenge to attack penal statutes,
such a test will impair the State's ability to deal with crime. If
warranted, there would be nothing that can hinder an accused
from defeating the State's power to prosecute on a mere showing
that, as applied to third parties, the penal statute is vague or
overbroad, notwithstanding that the law is clear as applied to
him. 65 (Emphasis and underscoring supplied)
It is settled, on the other hand, that the application of the
overbreadth doctrine is limited to a facial kind of challenge and, owing
to the given rationale of a facial challenge, applicable only to free
speech cases.
By its nature, the overbreadth doctrine has to necessarily apply a
facial type of invalidation in order to plot areas of protected speech,
inevitably almost alwaysunder situations not before the court, that are
impermissibly swept by the substantially overbroad regulation.
Otherwise stated, a statute cannot be properly analyzed for being
substantially overbroad if the court confines itself only to facts as
applied to the litigants.
The most distinctive feature of the overbreadth technique is
that it marks an exception to some of the usual rules of
constitutional litigation. Ordinarily, a particular litigant claims that
a statute is unconstitutional as applied to him or her; if the litigant
prevails, the courts carve away the unconstitutional aspects of the
law by invalidating its improper applications on a case to case
basis. Moreover, challengers to a law are not permitted to raise the
rights of third parties and can only assert their own interests. In
overbreadth analysis, those rules give way; challenges are
permitted to raise the rights of third parties; and the court
invalidates the entire statute "on its face," not merely "as applied
for" so that the overbroad law becomes unenforceable until a
properly authorized court construes it more narrowly. The factor
that motivates courts to depart from the normal adjudicatory rules
is the concern with the "chilling;" deterrent effect of the overbroad
statute on third parties not courageous enough to bring suit. The
Court assumes that an overbroad law's "very existence may cause
others not before the court to refrain from constitutionally
protected speech or expression." An overbreadth ruling is designed
to remove that deterrent effect on the speech of those third
 parties. 66 (Emphasis in the original omitted; underscoring
supplied.)
In restricting the overbreadth doctrine to free speech claims, the
Court, in at least two cases, 67 observed that the US Supreme Court
has not recognized an overbreadth doctrine outside the limited
context of the First Amendment, 68 and that claims of facial
overbreadth have been entertained in cases involving statutes which,
by their terms, seek to regulate only spoken words. 69 In Virginia v.
Hicks, 70 it was held that rarely, if ever, will an overbreadth challenge
succeed against a law or regulation that is not specifically addressed
to speech or speech-related conduct. Attacks on overly broad statutes
are justified by the "transcendent value to all society of
constitutionally protected expression." 71
Since a penal statute may only be assailed for being vague
as applied to petitioners, a limited vagueness analysis of
the definition of "terrorism" in RA 9372 is legally
impermissible absent an actual or imminent charge
against them

While Estrada did not apply the overbreadth doctrine, it did not
preclude the operation of the vagueness test on the Anti-Plunder
Law as applied to the therein petitioner, finding, however, that there
was no basis to review the law "on its face and in its entirety." 72 It
stressed that "statutes found vague as a matter of due
process typically are invalidated only 'as applied' to a particular
defendant." 73
American jurisprudence 74 instructs that "vagueness challenges
that do not involve the First Amendment must be examined in light of
the specific facts of the case at hand and not with regard to the
statute's facial validity."
For more than 125 years, the US Supreme Court has evaluated
defendants' claims that criminal statutes are unconstitutionally vague,
developing a doctrine hailed as "among the most important
guarantees of liberty under law." 75
In this jurisdiction, the void-for-vagueness doctrine asserted
under the due process clause has been utilized in examining the
constitutionality of criminal statutes. In at least three cases, 76 the
Court brought the doctrine into play in analyzing an ordinance
penalizing the non-payment of municipal tax on fishponds, the crime of
illegal recruitment punishable under Article 132 (b) of the Labor
Code,and the vagrancy provision under Article 202 (2) of the Revised
Penal Code. Notably, the petitioners in these three cases, similar to
those in the two Romualdez and Estrada cases, were
actually charged with the therein assailed penal statute, unlike in the
present case. cEaACD

There is no merit in the claim that RA 9372 regulates

speech so as to permit a facial analysis of its validity

From the definition of the crime of terrorism in the earlier cited

Section 3 of RA 9372, the following elements may be culled: (1) the
offender commits an act punishable under any of the cited provisions
of the Revised Penal Code, or under any of the enumerated special
penal laws; (2) the commission of the predicate crime sows and
creates a condition of widespread and extraordinary fear and panic
among the populace; and (3) the offender is actuated by the desire to
coerce the government to give in to an unlawful demand.
In insisting on a facial challenge on the invocation that the law
penalizes speech, petitioners contend that the element of "unlawful
demand" in the definition of terrorism 77 must necessarily be
transmitted through some form of expression protected by the free
speech clause.
The argument does not persuade. What the law seeks to penalize
is conduct, not speech.
Before a charge for terrorism may be filed under RA 9372, there
must first be a predicate crime actually committed to trigger the
operation of the key qualifying phrases in the other elements of the
crime, including the coercion of the government to accede to an
"unlawful demand." Given the presence of the first element, any
attempt at singling out or highlighting the communicative component
of the prohibition cannot recategorize the unprotected conduct into a
protected speech.
Petitioners' notion on the transmission of message is entirely
inaccurate, as it unduly focuses on just one particle of an element of
the crime. Almost every commission of a crime entails some mincing
of words on the part of the offender like in declaring to launch overt
criminal acts against a victim, in haggling on the amount of ransom or
conditions, or in negotiating a deceitful transaction. An analogy in one
U.S. case 78 illustrated that the fact that the prohibition on
discrimination in hiring on the basis of race will require an employer to
take down a sign reading "White Applicants Only" hardly means that
the law should be analyzed as one regulating speech rather than
conduct.
Utterances not elemental but inevitably incidental to the doing of
the criminal conduct alter neither the intent of the law to punish
socially harmful conductnor the essence of the whole act
 as conduct and not speech. This holds true a fortiori in the present
case where the expression figures only as an inevitable incident of
making the element of coercion perceptible.
[I]t is true that the agreements and course of conduct here
were as in most instances brought about through speaking or
writing. But it has never been deemed an abridgement of freedom
of speech or press to make a course of conduct illegal merely
because the conduct was, in part, initiated, evidenced, or carried
out by means of language, either spoken, written, or printed. Such
an expansive interpretation of the constitutional guaranties of
speech and press would make it practically impossible ever to
enforce laws against agreements in restraint of trade as well as
many other agreements and conspiracies deemed injurious to
society. 79 (italics and underscoring supplied)
Certain kinds of speech have been treated as unprotected
conduct, because they merely evidence a prohibited conduct. 80 Since
speech is not involved here, the Court cannot heed the call for a facial
analysis.
IN FINE, Estrada and the other cited authorities engaged in a
vagueness analysis of the therein subject penal statute as applied to
the therein petitioners inasmuch as they were actually charged with
the pertinent crimes challenged on vagueness grounds. The Court in
said cases, however, found no basis to review the assailed penal
statute on its face and in its entirety.
In Holder, on the other hand, the US Supreme Court allowed
the pre-enforcement review of a criminal statute, challenged on
vagueness grounds, since the therein plaintiffs faced a "credible
threat of prosecution" and "should not be required to await and
undergo a criminal prosecution as the sole means of seeking relief."
As earlier reflected, petitioners have established neither an
actual charge nor a credible threat of prosecution under RA 9372.
Even a limited vagueness analysis of the assailed definition of
"terrorism" is thus legally impermissible. The Court reminds litigants
that judicial power neither contemplates speculative counseling on a
statute's future effect on hypothetical scenarios nor allows the courts
to be used as an extension of a failed legislative lobbying in Congress.
WHEREFORE, the petitions are DISMISSED.
SO ORDERED.
(Sourthern Hemisphere Engagement Network, Inc. v. Anti-Terrorism
|||

Council, G.R. Nos. 178552, 178554, 178581, 178890, 179157 & 179461,
[October 5, 2010], 646 PHIL 452-496)
[G.R. No. 45685. November 16, 1937.]
 THE PEOPLE OF THE PHILIPPINE ISLANDS and THE
HONGKONG & SHANGHAI BANKING
CORPORATION, petitioners, vs. JOSE O. VERA, Judge ad
interim of the Court of First Instance of Manila, and MARIANO
CU UNJIENG, respondents.

Solicitor-General Tuason and City Fiscal Diaz for the Government.

DeWitt, Perkins & Ponce Enrile for the Hongkong & Shanghai
Banking Corporation.
Vicente J. Francisco, Feria & La O, Orense & Belmonte and Gibbs
& McDough for respondent Cu Unjieng.
No appearance for respondent Judge.

SYLLABUS

1. PROBATION; AUTHORITY OF PROBATION COURT TO LOOK INTO

CIRCUMSTANCES OF OFFENSE; SUPERIOR AND INFERIOR COURTS;
LEGAL RELATION AND ETHICAL STANDARD. — Probation implies guilt
by final judgment. While a probation court hearing a probation case
may look into the circumstances attending the commission of the
offense, this does not authorize it to reverse the findings and
conclusions of the Supreme Court, either directly or indirectly,
especially where from its own admission reliance was merely had on
the printed briefs, averments, and pleadings of the par ties. As
observed in Shioji vs. Harvey ( [1922], 43 Phil., 333, 337), and
reiterated in subsequent cases," if each and every Court of First
Instance could enjoy the privilege of overruling decisions of the
Supreme Court, there would be no end to litigation, and judicial chaos
would result." A becoming modesty of inferior courts demands
conscious realization of the position that they occupy in the
interrelation and operation of the integrated judicial system of the
nation.
2. CONSTITUTIONAL LAW; THE PRESIDENT AND HIS VETO
POWER; PRESIDENT'S VETO NOT BINDING ON THE SUPREME COURT.
— In vetoing a bill, the President may express the reasons which he
may deem proper, but his reasons are not binding upon the Supreme
Court in the determination of actual controversies submitted to it for
determination. Whether or not the Executive should express or in any
manner insinuate his opinion on a matter encompassed within his
broad constitutional power of veto but which happens to be at the
same time pending determination before the Supreme Court is a
question of propriety for him exclusively to decide or determine.
Whatever opinion is expressed by him under these circumstances,
however, cannot sway the judgment of the court one way or another
and prevent it from taking what in its opinion is the proper course of
action to take in a given case.
3. ID.; INDEPENDENCE OF THE JUDICIARY. — If it is ever
necessary to make any vehement affirmance during this formative
period of our political history, it is that the judiciary is independent of
the Executive no less than of the Legislative department of our
government — independent in the performance of its functions,
undeterred by any consideration, free from politics, indifferent to
popularity, and unafraid of criticism in the accomplishment of its
sworn duty as it sees it and understands it.
4. ID.; WHEN CONSTITUTIONALITY MAY BE RAISED. — 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.
5. ID.; ID.; RESORT TD EXTRAORDINARY LEGAL REMEDIES;
ADJUDICATED CASES. — The question of the constitutionality of an
Act of the legislature is frequently raised in ordinary actions.
Nevertheless, resort may be made to extraordinary legal remedies,
particularly where the remedies in the ordinary course of law, even if
avail able, are not plain, speedy and adequate. Thus, in Cu
Unjieng vs. Patstone ([1922], 42 Phil., 818), the Supreme Court held
that the question of the constitutionality of a statute may be raised by
the petitioner in mandamus proceedings ( see also 12 C. J., p. 783); and
in Government of the Philippine Islands vs.Springer ([1927], 50 Phil.,
259, affirmed in Springer vs. Government of the Philippine Islands
[1928], 277 U. S., 189; 72 Law. ed., 845), this court declared an act of
the legislature unconstitutional in an action of quo warranto brought
in the name of the Government of the Philippines. It has also been held
that the constitutionality of a statute may be questioned in habeas
corpus proceedings (12 C. J., p. 783; Bailey on Habeas Corpus, Vol. I,
pp. 97, 117), although there are authorities to the contrary; on an
application for injunction to restrain action under the challenged
statute (mandatory, see Cruz vs. Youngberg [1931] 56 Phil., 234); and
even on an application for preliminary in junction where the
determination of the constitutional question is necessary to a decision
of the case. (12 C. J., p. 783.) The same may be said as
regards prohibition and certiorari. (Yu Cong Eng vs. Trinidad [1925], 47
Phil., 385; [1926], 271 U. S., 500; 70 Law. ed., 1059; Bell vs. First
Judicial District Court [1905], 28 Nev., 280; 81 Pac., 875; 113 A. S. R.,
854; 6 Ann. Cas., 982; 1 L. R. A. [N. S.], 843, and cases cited.)
 6. ID. ; ID.; ID.; ID.; PROHIBITION; RULE WHERE JURISDICTION IS
EXCLUSIVELY DERIVED FROM UNCONSTITUTIONAL STATUTE. — The
writ of prohibition is an extraordinary judicial writ issuing out of a
court of superior jurisdiction and directed to an inferior court, for the
purpose of preventing the inferior tribunal from usurping a jurisdiction
with which it is not legally vested. The general rule, although there is
a conflict in the cases, is that the writ of prohibition will notice where
the inferior court has jurisdiction independent of the statute the
constitutionality of which is questioned, because in such cases the
inferior court having jurisdiction may itself determine the
constitutionality of the statute, and its decision may be subject to
review, and consequently the complainant in such cases ordinarily has
adequate remedy by appeal without resort to the writ of prohibition.
But where the inferior court or tribunal derives its jurisdiction
exclusively from an unconstitutional statute, it may be prevented by
the writ of prohibition from en forcing that statute.
7. ID.; ID.; ID.; ID.; ID.; COURTS OF FIRST INSTANCE; LIMITED
JURISDICTION IN PROBATION CASES. — A Court of First Instance
sitting in probation proceedings is a court of limited jurisdiction. Its
jurisdiction in such proceeding is conferred exclusively by Act No.
4221 of the Philippine Legislature.
8. ID.; ID. CONSTITUTIONALITY MUST BE RAISED AT THE
EARLIEST OPPORTUNITY; EXCEPTIONS. — As a general rule, the
question constitutionality must be raised at the earliest opportunity,
so that if not raised by the pleadings, ordinarily it may be raised at the
trial, and if not raised in the trial court, it will not be considered on
appeal. But the general rule admits of exceptions. Courts, in the
exercise of sound discretion, may determine the time when a question
affecting the constitutionality of a statute should be presented. Thus,
in criminal cases, although there is a very sharp conflict of authorities,
it is said that the question may be raised for the first time at any stage
of the ù proceedings, either in the trial court or on appeal. Even in civil
cases, it has been held that it is the duty of a court to pass on the
constitutional question, though raised for the first time on appeal, if it
appears that a determination of the question is .necessary to a
decision of the case. And it has been held that a constitutional
question will be considered by an appellate court at any time, where it
involves the jurisdiction of the court below.
9. ID.; ID.; PERSONAL AND SUBSTANTIAL INTEREST OF PARTY
RIGHT AND INTEREST OF THE PEOPLE OF THE PHILIPPINES TO
CHALLENGE CONSTITUTIONALITY. — The person who impugns the
validity of a statute must have a personal and substantial interest in
the case such that he has sustained, or will sustain, direct injury as a
result of its enforcement. It goes without saying that if Act No. 4221
really violates the Constitution, the People of the Philippines, in whose
name the present action is brought, has a substantial interest in
having it set aside. Of greater import than the damage caused by the
illegal expenditure of public funds is the mortal wound inflicted upon
the fundamental law by the enforcement of an invalid statute. Hence,
the well-settled rule that the state can challenge the validity of its
own laws.
10. ID.; ID.; RELIANCE ON PROBATION ACT, BY FISCAL DOES NOT
CONSTITUTE ESTOPPEL AGAINST THE PEOPLE. — The mere fact that
the Probation Act has been repeatedly relied upon in the past and all
that time has not been attacked as unconstitutional by the Fiscal of
Manila but, on the contrary, has been impliedly regarded by him as
constitutional, is no reason for considering the People of the
Philippines estopped from now as sailing its validity. For courts will
pass upon a constitutional question only when presented before it
in bona fide cases for determination, and the fact that the question
has not been raised before is not a valid reason for refusing to allow it
to be raised later. The fiscal and all others are justified in relying upon
the statute and treating it as valid until it is held void by the courts in
proper cases.
11. ID.; ID.; WHEN DETERMINATION OF CONSTITUTIONALITY
NECESSARY; WAIVER IF CASE CAN BE DECIDED ON OTHER POINTS. —
While the court will meet the question with firmness, where its
decision is indispensable, it is the part of wisdom, and a just respect
for the legislature, renders it proper, to waive it, if the case in which it
arises, can be decided on other points. ( Ex parte Randolph [1833], 20 F.
Cas. No 11,558; 2 Brock., 447. Vide, also Hoover vs. Wood [1857], 9 Ind.,
286, 287.) It has been held that the determination of a constitutional
question is, necessary whenever it is essential to the decision of the
case, as where the right of a party is founded solely on a statute the
validity of which is attacked. (12 C. J., p. 782.)
12. ID.; ID.; ID.; REASONS OF PUBLIC POLICY JUSTIFYING
CONSTITUTIONAL INQUIRY. — The Supreme Court will take cognizance
of the fact that the Probation Act is a new addition to our statute
books and its validity has never before been passed upon by the
courts; that many persons accused and convicted of crime in the City
of Manila have applied for probation; that some of them are already on
probation; that more people will likely take advantage of the Probation
Act in the future; and that the re respondent M. C. U. has been at large
for a period of about four years since his first conviction. All await the
decision of this court on the constitutional question. Considering,
therefore, the importance which the instant case has assumed and to
prevent multiplicity of suits, strong reasons of public policy demand
that the constitutionality of Act No. 4221 be now resolved.
13. ID.; THE JUDICIARY; ITS DUTY TO ENFORCE THE
CONSTITUTION. — Under a doctrine peculiarly American, it is the
office and duty of the judiciary to enforce the Constitution. The
Supreme Court, by clear implication from the provisions of section 2,
subsection 1, and section 10, of Article VIII of the Constitution, may
declare an act of the National Legislature invalid because in conflict
with the fundamental law. It will not shirk from its sworn duty to
enforce the Constitution. And, in clear cases, it will not hesitate to
Five effect to the supreme law by setting aside a statute in conflict
therewith. This is of the essence of judicial duty.
14. ID.; ID.; STATUTORY CONSTRUCTION; PRESUMPTION IN
FAVOR OF CONSTITUTIONALITY; RATIONALE OF PRESUMPTION. — All
reason able doubts should be resolved in favor of the constitutionality
of a statute. An act of the legislature approved by the executive, is
presumed to be within constitutional limitations. The responsibility of
upholding the Constitution rests not on the courts alone but on the
legislature as well. "The question of the validity of every statute is
first determined by the legislative department of the government
itself." ( U. S. vs. Ten Yu [1912], 24 Phil., 1, 10; Case is. Board of Health
and Heiser [1913], 24 Phil., 250, 276; U. S. vs. Joson t1913], 26 Phil., 1.)
And a statute finally comes before the courts sustained by the
sanction of the executive. The members of the Legislature and the
Chief Executive have taken an oath to support the Constitution and it
must be presumed that they have been true to this oath and that in
enacting and sanctioning a particular law they did not intend to violate
the Constitution. Then, there is that peculiar political philosophy
which bids the judiciary to reflect the wisdom of the people as
expressed through an elective Legislature and an elective Chief
Executive. It follows that the courts will not set aside a law as
violative of the Constitution except in clear cases.
15. ID.; THE PARDONING POWER UNDER THE JONES LAW AT THE
CONSTITUTION OF THE PHILIPPINES. — Section 21 of the Jones Law,
in e at the time of the approval of Act No. 4221, vests in the Governor-
General of the Philippines "the exclusive power to grant pardons and
reprieves and remit fines and forfeitures." This power is now vested in
the President of the Philippines. The provisions of the Jones Law and
the Constitution of the Philippines differ in some respects. The
adjective "exclusive" found in the Jones Law has been omitted from
the Constitution. Under the Jones Law, as at common law, pardon
could be granted any time after the commission of the offense, either
before or after conviction. The Governor-General of the Philippines
was thus empowered, like the President of the United States, to
pardon a person before the facts of his case were fully brought to
light. The framers of our Constitution thought this undesirable and,
following most of the state constitutions, provided that the pardoning
power can only be exercised "after conviction". So too, under the new
Constitution, the pardoning power does not extend to "cases of
impeachment". This is also the rule generally followed in the United
States.
16. ID.; ID.; ROYAL PARDON UNDER ENGLISH LAW; POWER OF THE
HOUSE OF LORDS. — The rule in England is different. There, a royal
pardon can not be pleaded in bar of an impeachment; "but," says
Blackstone, "after the impeachment has been solemnly heard and
determined, it is not understood that the king's royal grace is further
restrained or abridged." The reason for the distinction is obvious. In
England, judgment on impeachment is not confined to mere "removal
from office and disqualification to hold and enjoy any office of honor,
trust, or profit under the Government" but extends to the whole
punishment attached by law to the offense committed. The House of
Lords, on a conviction may, by its sentence, inflict capital punishment,
perpetual banishment, fine or imprisonment, depending upon the
gravity of the offense committed, together with removal from office
and incapacity to hold office.
17. ID.; ID.; COMMUTATION AND AMNESTY UNDER THE
PHILIPPINE CONSTITUTION. — Our Constitution makes specific
mention of "commutation" and of the power of the executive to
impose, in the par dons he may grant, such conditions, restrictions and
limitations as he may deem proper. Amnesty may be granted by the
President under the Constitution but only with the concurrence of the
National Assembly.
18. ID.; ID.; EXCLUSIVE CHARACTER OF THE PARDONING POWER.
— The benign prerogative of mercy reposed in the Executive cannot be
taken away nor fettered by any legislative restrictions, nor can like
power be given by the legislature to any other officer or authority. The
coordinate departments of government have nothing to do with the
pardoning power, since no person properly belonging to one of the
departments can exercise any powers appertaining to either of the
others except in cases expressly provided for by the constitution. (20
R. C. L., pp. 540, 541.) Where the pardoning power is conferred on the
executive without express or implied limitations, the grant is
exclusive, and the legislature can neither exercise such power itself
nor delegate it elsewhere, nor interfere with or control the proper
exercise thereof (12 C. J., pp. 838, 839).
 19. ID.; PROBATION, POWER OF THE PHILIPPINE LEGISLATURE
TO ENACT A PROBATION LAW. — The Philippine Legislature, like the
Congress of the United States, may legally enact a probation law
under its broad power to fix the punishment of any and all penal
offenses. The legislative power to set punishment for crime is very
broad, and in the exercise of this power the legislature may confer on
trial judges, if it sees fit, the largest discretion as to the sentence to
be imposed, as to the beginning and end of the punishment, and
whether it should be certain, or indeterminate, or conditional. Indeed,
the Philippine Legislature has defined all crimes and fixed the
penalties for their violation. Invariably, the legislature has
demonstrated the desire to vest in the courts — particularly the trial
courts — large discretion in imposing the penalties which the law
prescribes in particular cases. It is believed that justice can best be
served by vesting this power in the courts, they being in a position to
best determine the penalties which an individual convict, peculiarly
circumstance, should suffer.
20. ID.; ID.; PROBATION AND PARDON NOT COTERMINOUS;
PROBATION DISTINGUISHED FROM REPRIEVE AND COMMISSION. —
Probation and pardon are not coterminous; nor are they the same.
They are actually distinct and different from each other, both in origin
and in nature. In probation, the probationer is in no true sense, as in
pardon, a freeman He is not finally and completely exonerated. He is
not exempt from the entire punishment which the law inflicts. Under
the Probation Act, the probationer's case is not terminated by the
mere fact that he is placed on probation. The probationer, during the
period of probation, remains in legal custody — subject to the control
of the probation officer and of the court, he may be rearrested upon
the non-fulfillment of the conditions of probation and, when rearrested,
may be committed to prison to serve the sentence originally imposed
upon him. Probation should also be distinguished from reprieve and
from commutation of the sentence.
21. ID.; ID.; ID.; PROBATION NOT IN CONFLICT WITH PARDONING
POWER. — The Probation Act does not conflict with the pardoning
power of the Executive. The pardoning power, in respect to those
serving their probationary sentences, remains as full and complete as
if the Probation Law had never been enacted. The President may yet
pardon the probationer and thus place it beyond the power of the court
to order his rearrest and imprisonment.
22. ID.; DIVISION OF POWERS. — Under our constitutional system
powers of government are distributed among three coordinate and
substantially independent organs: the legislative, the executive and
the judicial. Each of these departments of the government derives its
authority from the Constitution which, in turn, is the highest
expression of the popular will. Each has exclusive cognizance of the
matters within its jurisdiction, and is supreme with in its own sphere.
23. ID.; ID.; DELEGATION OF LEGISLATIVE AUTHORITY
HISTORICAL DEVELOPMENT. — The power to make laws — the
legislative power — is vested in a bicameral Legislature by the Jones
Law and in a unicameral National Assembly by the Constitution. The
Philippine Legislature or the National Assembly may not escape its
duties and responsibilities by delegating that power to any other body
or authority. Any attempt to abdicate the power is unconstitutional
and void. on the principle that potestas de legata non delegare potest.
This principle is said to have originated with the glossators, was
introduced into English law through a misreading of Bracton, there
developed as a principle of agency, was established by Lord Coke in
the English public law in decisions forbidding the delegation of judicial
power, and found its way into America as an enlightened principle of
free government. It has since become an accepted corollary of the
principle of separation of powers.
24. ID.; ID.; ID.; RULE FORBIDDING DELEGATION OF LEGISLATIVE
AUTHORITY NOT INFLEXIBLE; EXCEPTIONS. — The rule, however
which forbids the delegation of legislative power is not absolute and
inflexible. It admits of exceptions. An exception sanctioned by
immemorial practice permits the central legislative body to delegate
legislative powers to local authorities. On quite the same principle,
Congress is empowered to delegate legislative power to such agencies
in the territories of the United States as it may select. Courts have
also sustained the delegation of legislative power to the people at
large, though some authorities maintain that this may not be done.
Doubt less, also, legislative power may be delegated by the
Constitution itself. Section 14, paragraph 2, of Article VI of the
Constitution of the Philippines provides that "The National Assembly
may by law authorize the President, subject to such limitations and
restrictions as it may impose, — to fix within specified limits, tariff
rates, import or export quotas, and tonnage and wharfage dues." And
section 16 of the same article of the Constitution provides that "In
times of war or other national emergency, the National Assembly may
by law authorize the President, for a limited period and subject to such
restrictions as it may prescribe, to promulgate rules and regulations to
carry out a declared national policy."
25. ID.; ID.; ID.; TEST OF UNDUE DELEGATION; DETAILS OF
EXECUTION. — In testing whether a statute constitutes an undue
delegation of legislative power or not, it is usual to inquire whether the
statute was complete in all its terms and provisions when it left the
hands of the legislature so that nothing was left to the judgment of
any other appointee or delegate of the legislature. In United
States vs. Ang Tang Ho ( [1922], 43 Phil., 1), the Supreme Court
adhered to the foregoing rule. The general rule, however, is limited by
another rule that to a certain extent matters of detail may be left to be
filled in by rules and regulations to be adopted or promulgated by
executive officers and administrative boards. As a rule, an act of the
legislature is incomplete and hence invalid if it does not lay down any
rule or definite standard by which the administrative board may be
guided in the exercise of the discretionary powers delegated to it.
26. ID.; ID.; ID.; PROBATION ACT MAKES VIRTUAL SURRENDER OF
LEGISLATIVE POWER TO PROVINCIAL BOARDS. — The Probation Act
does not, by the force of any of its provisions, fix and impose upon the
provincial boards any standard or guide in the exercise of their
discretionary power. What is granted is a "roving commission" which
enables the provincial boards to exercise arbitrary discretion. By
section 11 of the Act, the legislature does seemingly on its own
authority extend the benefits of the Probation Act to the provinces but
in reality leaves the entire matter for the various provincial boards to
determine. If a provincial board does not wish to have the Act applied
in its province, all that it has to do is to decline to appropriate the
needed amount for the salary of a probation officer. This is a virtual
surrender of legislative power to the provincial boards.
27. ID.; ID.; ID.; TRUE DISTINCTION BETWEEN POWER TO MAKE
LAW AND DISCRETION AS TO ITS EXECUTION; ADJUDICATED CASES.
— 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 an authority or discretion as to its execution, to be
exercised under and in pursuance of the law. The first cannot be done;
to the latter no valid objection can be made. ( Cincinnati, W. & Z. R.
Co. vs.Clinton County Comrs. [1852], 1 Ohio St., 77, 88. See
also, Sutherland on Statutory Construction, sec. 68.) To the same
effect are decisions of the Supreme Court in the Municipality of
Cardona vs. Municipality of Binañgonan ([1917], 36 Phil., 547);
Rubi vs. Provincial Board of Mindoro ([1919], 39. Phil., 660); and
Cruz vs. Youngberg ([1931], 56 Phil., 234).
28. ID.; ID.; ID.; CONDITIONAL ENFORCEMENT OF A LAW;
RELAXATION OF THE DOCTRINE. — Laws may be made effective on
certain contingencies, as by proclamation of the executive or the
adoption by the people of a particular community (6 R. C. L., 116, 170-
172; Cooley, Constitutional Limitations, 8th ed., vol. I, p. 227). In
Wayman vs. Southard ([1825], 10 Wheat., 1; 6 Law. ed., 253), the
Supreme Court of the United States ruled that the legislature may
delegate a power not legislative which it may itself rightfully exercise.
The power to ascertain facts is such a power which may be delegated.
There is nothing essentially legislative in ascertaining the existence of
facts or conditions as the basis of the taking into effect of a law. That
is a mental process common to all branches of the government.
Notwithstanding the apparent tendency to relax the rule pro hi biting
delegation of legislative authority on account of the complexity arising
from social and economic forces at work in this modern industrial age,
the orthodox pronouncement of .Judge Cooley in his work on
Constitutional Limitations finds restatement in Professor Willoughby's
treatise on the Constitution of the United States and is accepted.
29. ID.; ID.; ID.; OPERATION OF PROBATION ACT NOT
CONTINGENT ON SPECIFIED FACTS OR CONDITIONS; DISCRETION
VESTED IN PROVINCIAL BOARDS ARBITRARY. — The legislature has
not made the operation of the Probation Act contingent upon specified
facts or conditions to be ascertained by the provincial board. It leaves
the entire operation or non-operation of the law upon the provincial
boards. The discretion vested is arbitrary be cause it is absolute and
unlimited. A provincial board need not investigate conditions or find
any fact, or await the happening of any specified contingency. It is
bound by no rule — limited by no principle of expediency announced by
the legislature. It may take into consideration certain facts or
conditions; and, again, it may not. It may have any purpose or no
purpose at all. It need not give any reason or have any reason
whatsoever for refusing or failing to appropriate any funds for the
salary of a probation officer. This is a matter which rests entirely at its
pleasure.
30. ID.; ID.; ID.; LOCAL OPTION LAWS RIGHT OF LOCAL SELF-
GOVERNMENT; SUSPENSION OF OPERATION OF A GENERAL LAW
COUNTENANCED. — The legislature may enact laws for a particular
locality different from those applicable to other localities and, while
recognizing the force of the principle hereinabove expressed, courts in
many jurisdictions have sustained the constitutionality of the
submission of option laws to the vote of the people. (6 R. C. L., p. 171.)
But option laws thus sustained treat of subjects purely local in
character which should receive different treatment in different
localities placed under different circumstances. Without denying the
right of local self-government and the propriety of leaving matters of
purely local concern in the hands of local authorities or for the people
of small communities to pass upon in matters of general legislation
like that which treats of criminals in general, and as regards the
general subject of probation, discretion may not be vested in a manner
so unqualified and absolute as provided in Act No. 4221.
 31. ID.; ID.; ID.; PROVINCIAL BOARDS EMPOWERED TO SUSPEND
OPERATION OF PROBATION ACT. — The statute does not expressly
state that the provincial boards may suspend the operation of the
Probation Act in particular provinces but, considering that, in being
vested with the authority to appropriate or not the necessary funds for
the salaries of probation officers they thereby are given absolute
discretion to determine whether or not the law should take effect or
operate in their respective provinces, the provincial boards are in
reality empowered by the legislature to suspend the operation of the
Probation Act in particular provinces, the Act to be held in abeyance
until the provincial boards should decide otherwise by appropriating
the necessary funds. The validity of a law is not tested by what has
been done, but by what may be done under its provisions. (Walter E.
Olsen & Co. vs. Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. ,T., p.
786.)
32. ID.; ID.; ID.; LEGISLATIVE POLICY; EXECUTION THEREOF
CONSTITUTION BOTH A GRANT AND LIMITATION OF POWER. — A great
deal of latitude should be granted to the legislature not only in the
expression of what may be termed legislative policy but in the
elaboration and execution thereof. "Without this power, legislation
would become oppressive and yet imbecile." (People vs. Reynolds, 5
Gilman, 1.) It has been said that popular government lives because of
the inexhaustible reservoir of power behind it. It is unquestionable that
the mass of powers of government is vested in the representatives of
the people and that these representatives are no further restrained
under our system than by the express language of the instrument
imposing the restraint, or by particular provisions which by clear
intendment, have that effect. But it should be borne in mind that a
constitution is both a grant and a limitation of power and one of these
time-honored limitations is that, subject to certain exceptions,
legislative power shall not be delegated.
33. ID.; EQUAL PROTECTION OF THE LAWS; CLASS LEGISLATION;
CLASSIFICATION ON REASONABLE BASIS. — " . . . nor shall any person
be denied the equal protection of the laws." This basic individual right
sheltered by the Constitution is a restraint on all the three grand
departments of our government and on the subordinate
instrumentalities and subdivisions thereof, and on many constitutional
powers, like the police power, taxation and eminent domain. What may
be regarded as a denial of the equal protection of the laws is a
question not always easily determined. No rule that will cover every
case can be formulated. Class legislation discriminating against some
and favoring others is prohibited. But classification on a reasonable
basis, and not made arbitrarily or capriciously, is permitted. The
classification, however, to be reasonable must be based on substantial
distinctions which make real differences; it must be germane to the
purposes of the law; it must not be limited to existing conditions only,
and must apply equally to each member of the class.

34. ID.; ID.; ID.; RESULTANT INEQUALITY FROM UNWANTED

DELEGATION; PROBATION ACT PERMITS DENIAL OF EQUAL
PROTECTION. — In the case of Act No. 4221, the resultant inequality
may be said to flow from the unwarranted delegation of legislative
power to the provincial boards. While inequality may result in the
application of the law and in the conferment of the benefits therein
provided, inequality is not in all cases the necessary result. But
whatever may be the case, it is clear that section 11 of the Probation
Act creates a situation in which discrimination and inequality are
permitted or allowed. There are, to be sure, abundant authorities
requiring actual denial of the equal protection of the law before courts
should assume the task of setting aside a law vulnerable on that
score, but premises and circumstances considered, we are of the
opinion that section 11 of Act No. 4221 permits of the denial of the
equal protection of the law and is on that account bad. We see no
difference between a law which 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.
35. ID.; ID.; ID.; SECTION 11 OF PROBATION ACT; GOVERNMENT
OF LAWS; EQUALITY CLAUSE NOT "A ROPE OF SAND". — Under
section 11 of the Probation Act, not only may said Act be in force in
one or several provinces and not be in force in the other provinces, but
one province may appropriate for the salary of a probation officer of a
given year — and have probation during that year — and thereafter
decline to make further appropriation, and have no probation in
subsequent years. While this situation, goes rather to the abuse of
discretion which delegation implies, it is here indicated to show that
the Probation Act sanctions a situation which is intolerable in a
government of laws, and to prove how easy it is, under the Act, to
make the guaranty of the equality clause but "a rope of sand."
36. ID.; PARTIAL UNCONSTITUTIONALITY; PRESUMPTION
AGAINST MUTILATION OF STATUTE. — In seeking the legislative
intent, the presumption is against any mutilation of a statute, and the
courts will resort to elimination only where an unconstitutional pro
vision is interjected into a statute otherwise valid, and is so
independent and separable that its removal will leave the
constitutional features and purposes of the act substantially
unaffected by the process.
37. ID.; SECTION 11 OF PROBATION ACT INSEPARABLE FROM
REST OF ACT; PROBATION AND PROBATION OFFICERS. — Section 11 of
the Probation Act (No. 4221) is inseparably linked with the other
portions of the Act that with the elimination of the section what would
be left is the bare idealism of the system, devoid of any practical
benefit to a large number of people who may be deserving of the
intended beneficial results of that system. The clear policy of the law,
as may be gleaned from a careful examination of the whole context, is
to make the application of the system dependent entirely upon the
affirmative action of the different provincial boards. If not one of the
provinces — and this is the actual situation now — appropriates the
necessary fund for the salary of a probation officer, probation under
Act No. 4221 would be illusory. There can be no probation without a
probation officer. Neither can there be a probation officer with out a
probation system.
38. ID.; ID.; PROBATION ACT ANALYZED; SECTIONS 10 AND 11
ACT; RULE OF STATUTORY CONSTRUCTION. — The probation officer
the administrative personnel referred to in section 10 are clearly not
those probation officers required to be appointed for the provinces
under section 11. It may be said, reddendo singula singulis, that the
probation officers referred to in section 10 are to act as such, not in
the various provinces, but in the central office known as the Probation
Office established in the Department of Justice, under the supervision
of a Chief Probation Officer. When the law provides that "the probation
officer" shall investigate and make reports to the court; that "the
probation officer" shall supervise and visit the probationer; that the
probationer shall report to the "probation officer", shall al low "the
probation officer" to visit him, shall truthfully answer any reasonable
inquiries on the part of "the probation officer" concerning his conduct
or condition; that the court shall notify "the probation officer" in
writing of the period and terms of probation, it means the probation
officer who is in charge of a particular probationer in a particular
province. It never could have been the intention of the legislature, for
instance, to re quire a probationer in Batanes, to report to a probation
officer in the City of Manila, or to require a probation officer in Manila
to visit the probationer in the said province of Batanes, to place him
under his care, to supervise his conduct, to instruct him concerning
the conditions of his probation or to perform such other functions as
are assigned to him by law.
 39. ID.; ID.; ID.; ID.; WISDOM AND PROPRIETY OF LEGISLATION;
PROGRESSIVE INTERPRETATION AND JUDICIAL LEGISLATION. — That
under section 10 the Secretary of Justice may appoint as many
probation officers as there are provinces or groups of provinces is, of
course, possible. But this would be arguing on what the law may
be or should beand not on what the law is. Between is and ought there
is a far cry. The wisdom and propriety of legislation is not for us to
pass upon. We may think a law better otherwise than it is. But much as
has been said regarding progressive interpretation and judicial
legislation we decline to amend the law. We are not permitted to read
into the law matters and provisions which are not there. Not for any
purpose — not even to save a statute from the doom of invalidity.
40. ID.; ID.; ID.; ID.; APPROPRIATION OF FUNDS; APPOINTMENT OF
PROBATION OFFICERS BY SECRETARY OF JUSTICE; JUDICIAL NOTICE.
— The clear intention and policy of the law is not to make the Insular
Government defray the salaries of probation officers in the provinces
but to make the provinces defray them should they desire to have the
Probation Act apply thereto. The sum of P50,000, appropriated "to
carry out the purposes of this Act", is to be applied, among other
things, for the salaries of probation officers in the central office at
Manila. These probation officers are to receive such compensation as
the Secretary of Justice may fix "until such positions shall have been
included in the Appropriation Act". It was not the intention of the
legislature to empower the Secretary of Justice to fix the salaries of
probation officers in the provinces or later on to include said salaries
in an appropriation act. Considering, further, that the sum of P50,000,
appropriated in section 10 is to cover, among other things, the salaries
of the administrative personnel of the Probation Office, what would be
left of the amount can hardly be said to be sufficient to pay even
nominal salaries to probation officers in the provinces. We take
judicial notice of the fact that there are 48 provinces in the
Philippines, and we do not think it is seriously contended that, with
the fifty thousand pesos appropriated for the central office, there can
be in each province, as intended, a probation officer with a salary not
lower than that of a provincial fiscal. If this is correct, the contention
that without section 11 of Act No. 4221 said act is complete is an
impracticable thing under the remainder of the Act, unless it is
conceded that there can be a system of probation in the provinces
without probation officers.
41. ID.; PROBATION AS DEVELOPMENT OF MODERN PENOLOGY;
PROBATION ACT AS REPUGNANT TO FUNDAMENTAL LAW. — Probation
as a development of modern penology is a commendable system.
Probation laws have been enacted, here and in other countries, to
permit what modern criminologists call the "individualization of
 punishment", the adjustment of the penalty to the character of the
criminal and the circumstances of his particular case. It provides a
period of grace in order to aid in the rehabilitation of a penitent
offender. It is believed that, in many cases, convicts may be reformed
and their development into hardened criminals aborted. It, therefore,
takes advantage of an opportunity for reformation and avoids
imprisonment so long as the convict gives promise of reform. The
welfare of society is its chief end and aim. The benefit to the individual
convict is merely incidental. But while probation is commendable as a
system and its implantation into the Philippines should be welcomed,
the law is set aside because of repugnancy to the fundamental law.
42. ID.; CONSTITUTIONAL RELATIONS; RULES OF STATUTORY
CONSTRUCTION; DECISIONS OF UNITED STATES COURTS; LOCAL
CONDITIONS AND ENVIRONMENT. — The constitutional relations
between the Federal and the State governments of the United States
and the dual character of the American Government is a situation
which does not obtain in the Philippines. The situation of a state of the
American Union or of the District of Columbia with reference to the
Federal Government of the United States is not the situation of a
province with respect to the Insular Government; the distinct federal
and state judicial organizations of the United States do not embrace
the integrated judicial system of the Philippines; "General propositions
do not decide concrete cases" and "to keep pace with . . . new
developments of times and circumstances", fundamental principles
should be interpreted having in view existing local conditions and
environments.

DECISION

LAUREL, J :p

This is an original action instituted in this court on August 19,

1937, for the issuance of the writs of certiorari and of prohibition to
the Court of First Instance of Manila so that this court may review the
actuations of the aforesaid Court of First Instance in criminal case No.
42649 entitled "The People of the Philippine Islands vs. Mariano Cu
Unjieng, et al.", more particularly the application of the defendant
Mariano Cu Unjieng therein for probation under the provisions of Act
No. 4221, and thereafter prohibit the said Court of First Instance from
taking any further action or entertaining further the aforementioned
application for probation, to the end that the defendant Mariano Cu
Unjieng may be forthwith committed to prison in accordance with the
final judgment of conviction rendered by this court in said case (G. R.
No. 41200). 1

Petitioners herein, the People of the Philippine Islands and the

Hongkong and Shanghai Banking Corporation, are respectively the
plaintiff and the offended party, and the respondent herein Mariano Cu
Unjieng is one of the defendants, in the criminal case entitled "The
People of the Philippine Islands vs. Mariano Cu Unjieng, et al.",
criminal case No. 42649 of the Court of First Instance of Manila and G.
R. No. 41200 of this court. Respondent herein, Hon. Jose O. Vera, is the
Judge ad interim of the seventh branch of the Court of First Instance
of Manila, who heard the application of the defendant Mariano Cu
Unjieng for probation in the aforesaid criminal case.
The information in the aforesaid criminal case was filed with the
Court of First Instance of Manila on October 15, 1931, petitioner herein
Hongkong and Shanghai Banking Corporation intervening in the case
as private prosecutor. After a protracted trial unparalleled in the
annals of Philippine jurisprudence both in the length of time spent by
the court as well as in the volume of the testimony and the bulk of
exhibits presented, the Court of First Instance of Manila, on January 8,
1934, rendered a judgment of conviction sentencing the defendant
Mariano Cu Unjieng to an indeterminate penalty ranging from four
years and two months ofprision correccional to eight years of prison
mayor, to pay the costs and with reservation of civil action to the
offended party, the Hongkong and Shanghai Banking Corporation.
Upon appeal, the court, on March 26, 1935, modified the sentence to
an indeterminate penalty of from five years and six months of prision
correccionalto seven years, six months and twenty-seven days
of prison mayor, but affirmed the judgment in all other respects.
Mariano Cu Unjieng filed a motion for reconsideration and four
successive motions for new trial which were denied on December 17,
1935, and final judgment was accordingly entered on December 18,
1935. The defendant thereupon sought to have the case elevated on
certiorari to the Supreme Court of the United States but the latter
denied the petition for certiorari in November, 1936. This court, on
November 24, 1936, denied the petition subsequently filed by the
defendant for leave to file a second alternative motion for
reconsideration or new trial and thereafter remanded the case to the
court of origin for execution of the judgment.
The instant proceedings have to do with the application for
probation filed by the herein respondent Mariano Cu Unjieng on
November 27, 1936, before the trial court, under the provisions of Act
No. 4221 of the defunct Philippine Legislature. Herein respondent
Mariano Cu Unjieng states in his petition, inter alia, that he is innocent
of the crime of which he was convicted, that he has no criminal record
and that he would observe good conduct in the future. The Court of
First Instance of Manila, Judge Pedro Tuason presiding, referred the
application for probation to the Insular Probation Office which
recommended denial of the same on June 18, 1937. Thereafter, the
Court of First Instance of Manila, seventh branch, Judge Jose O. Vera
presiding, set the petition for hearing on April 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila filed an
opposition to the granting of probation to the herein respondent
Mariano Cu Unjieng. The private prosecution also filed an opposition
on April 5, 1937, alleging, among other things, that Act No. 4221,
assuming that it has not been repealed by section 2 of Article XV of
the Constitution, is nevertheless violative of section 1, subsection (1),
Article III of the Constitution guaranteeing equal protection of the
laws for the reason that its applicability is not uniform throughout the
Islands and because section 11 of said Act No. 4221 endows the
provincial boards with the power to make said law effective or
otherwise in their respective provinces. The private prosecution also
filed a supplementary opposition on April 19, 1937, elaborating on the
alleged unconstitutionality of Act No. 4221, as an undue delegation of
legislative power to the provincial boards of several provinces (sec. 1,
Art. VI, Constitution). The City Fiscal concurred in the opposition of
the private prosecution except with respect to the questions raised
concerning the constitutionality of Act No. 4221.
On June 28, 1937, herein respondent Judge Jose O. Vera
promulgated a resolution with a finding that "las pruebas no han
establecido de una manera concluyente la culpabilidad del
peticionario y que todos los hechos probados no son inconsistentes o
incongruentes con su inocencia" and concludes that the herein
respondent Mariano Cu Unjieng "es inocente por duda racional" of the
crime for which he stands convicted by this court in G. R. No. 41200,
but denying the latter's petition for probation for the reason that:
". . . Si este Juzgado concediera la probacion solicitada por
las circunstancias y la historia social que se han expuesto en el
cuerpo de esta resolucion, que hacen al peticionario acreedor de
la misma, una parte de la opinion publica, atizada por los recelos y
las suspicacias, podria levantarse indignada contra un sistema de
probacion que permite atisbar en los procedimientos ordinarios de
una causa criminal perturbando la quietud y la eficacia de las
decisiones ya recaidas al traer a la superficie conclusiones
enteramente diferentes, en menoscabo del interes publico que
demanda el respeto de las leyes y del veredicto judicial."
 On July 3, 1937, counsel for the herein respondent Mariano Cu
Unjieng filed an exception to the resolution denying probation and a
notice of intention to file a motion for reconsideration. An alternative
motion for reconsideration or new trial was filed by counsel on July 13,
1937. This was supplemented by an additional motion for
reconsideration submitted on July 14, 1937. The aforesaid motions
were set for hearing on July 31, 1937, but said hearing was postponed
at the petition of counsel for the respondent Mariano Cu Unjieng
because a motion for leave to intervene in the case as amici
curiae signed by thirty-three (thirty-four) attorneys had just been filed
with the trial court. Attorney Eulalio Chaves whose signature appears
in the aforesaid motion subsequently filed a petition for leave to
withdraw his appearance as amicus curiae on the ground that the
motion for leave to intervene as amici curiae was circulated at a
banquet given by counsel for Mariano Cu Unjieng on the evening of
July 30, 1937, and that he signed the same "without mature
deliberation and purely as a matter of courtesy to the person who
invited me (him)."
On August 6, 1937, the Fiscal of the City of Manila filed a motion
with the trial court for the issuance of an order of execution of the
judgment of this court in said case and forthwith to commit the herein
respondent Mariano Cu Unjieng to jail in obedience to said judgment.
On August 7, 1937, the private prosecution filed its opposition to
the motion for leave to intervene as amici curiae aforementioned,
asking that a date be set for the hearing of the same and that, at all
events, said motion should be denied with respect to certain attorneys
signing the same who were members of the legal staff of the several
counsel for Mariano Cu Unjieng. On August 10, 1937, herein respondent
Judge Jose O. Vera issued an order requiring all parties including the
movants for intervention as amici curiae to appear before the court on
August 14, 1937. On the last mentioned date, the Fiscal of the City of
Manila moved for the hearing of his motion for execution of judgment
in preference to the motion for leave to intervene as amici curiae but,
upon objection of counsel for Mariano Cu Unjieng, he moved for the
postponement of the hearing of both motions. The respondent judge
thereupon set the hearing of the motion for execution on August 21,
1937, but proceeded to consider the motion for leave to intervene
as amici curiae as in order. Evidence as to the circumstances under
which said motion for leave to intervene as amici curiae was signed
and submitted to court was to have been heard on August 19, 1937. But
at this juncture, herein petitioners came to this court on extraordinary
legal process to put an end to what they alleged was an interminable
proceeding in the Court of First Instance of Manila which fostered "the
campaign of the defendant Mariano Cu Unjieng for delay in the
execution of the sentence imposed by this Honorable Court on him,
exposing the courts to criticism and ridicule because of the apparent
inability of the judicial machinery to make effective a final judgment of
this court imposed on the defendant Mariano Cu Unjieng."
The scheduled hearing before the trial court was accordingly
suspended upon the issuance of a temporary restraining order by this
court on August 21, 1937.
To support their petition for the issuance of the extraordinary
writs of certiorari and prohibition, herein petitioners allege that the
respondent judge has acted without jurisdiction or in excess of his
jurisdiction:
I. Because said respondent judge lacks the power to place
respondent Mariano Cu Unjieng under probation for the following
reasons:
(1) Under section 11 of Act No. 4221, the said Act of the Philippine
Legislature is made to apply only to the provinces of the Philippines; it
nowhere states that it is to be made applicable to chartered cities like
the City of Manila.
(2) While section 37 of the Administrative Code contains a proviso
to the effect that in the absence of a special provision, the term
"province" may be construed to include the City of Manila for the
purpose of giving effect to laws of general application, it is also true
that Act No. 4221 is not a law of general application because it is
made to apply only to those provinces in which the respective
provincial boards shall have provided for the salary of a probation
officer.
(3) Even if the City of Manila were considered to be a province,
still, Act No. 4221 would not be applicable to it because it has not
provided for the salary of a probation officer as required by section 11
thereof; it being immaterial that there is an Insular Probation Office
willing to act for the City of Manila, said Probation Office provided for
in section 10 of Act No. 4221 being different and distinct from the
Probation Officer provided for in section 11 of the same Act.
II. Because even if the respondent judge originally had
jurisdiction to entertain the application for probation of the
respondent Mariano Cu Unjieng, he nevertheless acted without
jurisdiction or in excess thereof in continuing to entertain the motion
for reconsideration and by failing to commit Mariano Cu Unjieng to
prison after he had promulgated his resolution of June 28, 1937,
denying Mariano Cu Unjieng's application for probation, for the reason
that:
 (1) His jurisdiction and power in probation proceedings is limited
by Act No. 4221 to the granting or denying of applications for
probation.
(2) After he had issued the order denying Mariano Cu Unjieng's
petition for probation on June 28, 1937, it became final and executory
at the moment of its rendition.
(3) No right of appeal exists in such cases.
(4) The respondent judge lacks the power to grant a rehearing of
said order or to modify or change the same.
III. Because the respondent judge made a finding that Mariano Cu
Unjieng is innocent of the crime for which he was convicted by final
judgment of this court, which finding is not only presumptuous but
without foundation in fact and in law, and is furthermore in contempt
of this court and a violation of the respondent's oath of office as ad
interim judge of first instance.
IV. Because the respondent judge has violated and continues to
violate his duty, which became imperative when he issued his order of
June 28, 1937, denying the application for probation, to commit his co-
respondent to jail.
Petitioners also aver that they have no other plain, speedy and
adequate remedy in the ordinary course of law.
In a supplementary petition filed on September 9, 1937, the
petitioner Hongkong and Shanghai Banking Corporation further
contends that Act No. 4221 of the Philippine Legislature providing for a
system of probation for persons eighteen years of age or over who are
convicted of crime, is unconstitutional because it is violative of
section 1, subsection (1), Article III, of the Constitution of the
Philippines guaranteeing equal protection of the laws because it
confers upon the provincial board of each province the absolute
discretion to make said law operative or other wise in their respective
provinces, because it constitutes an unlawful and improper delegation
to the provincial boards of the several provinces of the legislative
power lodged by the Jones Law (section 8), in the Philippine
Legislature and by the Constitution (section 1, Art. VI) in the National
Assembly; and for the further reason that it gives the provincial
boards, in contravention of the Constitution (section 2, Art. VIII) and
the Jones Law (section 28), the authority to enlarge the powers of the
Courts of First Instance of the different provinces without uniformity.
In another supplementary petition dated September 14, 1937, the
Fiscal of the City of Manila, in behalf of one of the petitioners, the
People of the Philippine Islands, concurs for the first time with the
issues raised by the other petitioner regarding the constitutionality of
Act No. 4221, and in the oral argument held on October 6, 1937, further
elaborated on the theory that probation is a form of reprieve and
therefore Act No. 4221 is an encroachment on the exclusive power of
the Chief Executive to grant pardons and reprieves. On October 7, 1937,
the City Fiscal filed two memorandums in which he contended that Act
No. 4221 not only encroaches upon the pardoning power of the
executive, but also constitutes an unwarranted delegation of
legislative power and a denial of the equal protection of the laws. On
October 9, 1937, two memorandums, signed jointly by the City Fiscal
and the Solicitor-General, acting in behalf of the People, of the
Philippine Islands, and by counsel for the other petitioner, the
Hongkong and Shanghai Banking Corporation, one sustaining the
power of the state to impugn the validity of its own laws and the other
contending that Act No. 4221 constitutes an unwarranted delegation of
legislative power, were presented. Another joint memorandum was
filed by the same persons on the same day, October 9, 1937, alleging
that Act No. 4221 is unconstitutional because it denies the equal
protection of the laws and constitutes an unlawful delegation of
legislative power and, further, that the whole Act is void; that the
Commonwealth is not estopped from questioning the validity of its
laws; that the private prosecution may intervene in probation
proceedings and may attack the probation law as unconstitutional;
and that this court may pass upon the constitutional question in
prohibition proceedings.
Respondents in their answer dated August 31, 1937, as well as in
their oral argument and memorandums, challenge each and every one
of the foregoing proposition raised by the petitioners.
As special defenses, respondents allege:
(1) That the present petition does not state facts sufficient in law
to warrant the issuance of the writ of certiorari or of prohibition.
(2) That the aforesaid petition is premature because the remedy
sought by the petitioners is the very same remedy prayed for by them
before the trial court and was still pending resolution before the trial
court when the present petition was filed with this court.
(3) That the petitioners having themselves raised the question as
to the execution of judgment before the trial court, said trial court has
acquired exclusive jurisdiction to resolve the same under the theory
that its resolution denying probation is unappealable.
(4) That upon the hypothesis that this court has concurrent
jurisdiction with the Court of First Instance to decide the question as
to whether or not execution will lie, this court nevertheless cannot
exercise said jurisdiction while the Court of First Instance has
assumed jurisdiction over the same upon motion of herein petitioners
themselves.
(5) That the procedure followed by the herein petitioners in
seeking to deprive the trial court of its jurisdiction over the case and
elevate the proceedings to this court, should not be tolerated because
it impairs the authority and dignity of the trial court which court while
sitting in probation cases is "a court of limited jurisdiction but of great
dignity."
(6) That, under the supposition that this court has jurisdiction to
resolve the question submitted to and pending resolution by the trial
court, the present action would not lie because the resolution of the
trial court denying probation is appealable; for although the Probation
Law does not specifically provide that an applicant for probation may
appeal from a resolution of the Court of First Instance denying
probation, still it is a general rule in this jurisdiction that a final order,
resolution or decision of an inferior court is appealable to the superior
court.
(7) That the resolution of the trial court denying probation of
herein respondent Mariano Cu Unjieng being appealable, the same had
not yet become final and executory for the reason that the said
respondent had filed an alternative motion for reconsideration and
new trial within the requisite period of fifteen days, which motion the
trial court was not able to resolve in view of the restraining order
improvidently and erroneously issued by this court.
(8) That the Fiscal of the City of Manila had by implication
admitted that the resolution of the trial court denying probation is not
final and unappealable when he presented his answer to the motion
for reconsideration and agreed to the postponement of the hearing of
the said motion.
(9) That under the supposition that the order of the trial court
denying probation is not appealable, it is incumbent upon the accused
to file an action for the issuance of the writ of certiorari with
mandamus, it appearing that the trial court, although it believed that
the accused was entitled to probation, nevertheless denied probation
for fear of criticism because the accused is a rich man; and that,
before a petition for certiorari grounded on an irregular exercise of
jurisdiction by the trial court could lie, it is incumbent upon the
petitioner to file a motion for reconsideration specifying the error
committed so that the trial court could have. an opportunity to correct
or cure the same.
(10) That on the hypothesis that the resolution of the trial court is
not appealable, the trial court retains its jurisdiction within a
reasonable time to correct or modify it in accordance with law and
justice; that this power to alter or modify an order or resolution is
inherent in the courts and may be exercised either motu proprio or
upon petition of the proper party, the petition in the latter case taking
the form of a motion for reconsideration.
(11) That on the hypothesis that the resolution of the trial court is
appealable as respondents allege, said court cannot order execution
of the same while it is on appeal, for then the appeal would not be
availing because the doors of probation would be closed from the
moment the accused commences to serve his sentence (Act No. 4221,
sec. 1; U. S. vs. Cook, 19 Fed. [2d], 827).
In their memorandums filed on October 23, 1937, counsel for the
respondents maintain that Act No. 4221 is constitutional because,
contrary to the allegations of the petitioners, it does not constitute an
undue delegation of legislative power, does not infringe the equal
protection clause of the Constitution, and does not encroach upon the
pardoning power of the Executive. In an additional memorandum filed
on the same date, counsel for the respondents reiterate the view that
section 11 of Act No. 4221 is free from constitutional objections and
contend, in addition, that the private prosecution may not intervene in
probation proceedings, much less question the validity of Act No. 4221;
that both the City Fiscal and the Solicitor-General are estopped from
questioning the validity of the Act; that the validity of the Act cannot
be attacked for the first time before this court; that prohibition is
unavailable; and that, in any event, section 11 of Act No. 4221 is
separable from the rest of the Act. The last memorandum for the
respondent Mariano Cu Unjieng was denied for having been filed out of
time but was admitted by resolution of this court and filed anew on
November 5, 1937. This memorandum elaborates on some of the points
raised by the respondents and refutes those brought up by the
petitioners.
In the scrutiny of the pleadings and examination of the various
aspect of the present case, we noted that the court below, in passing
upon the merits of the application of the respondent Mariano Cu
Unjieng and in denying the said application assumed the task not only
of considering the merits of the application, but of passing upon the
culpability of the applicant, notwithstanding the final pronouncement
of guilt by this court. (G. R. No. 41200.) Probation implies guilt by final
judgment. While a probation court hearing a probation case may look
into the circumstances attending the commission of the offense, this
does not authorize it to reverse the findings and conclusions of this
court, either directly or indirectly, especially where from its own
admission reliance was merely had on the printed briefs, averments,
and pleadings of the parties. As already observed by this court in
Shioji vs. Harvey ([1922], 43 Phil., 333, 337), and reiterated in
subsequent cases, "if each and every Court of First Instance could
enjoy the privilege of overruling decisions of the Supreme Court, there
would be no end to litigation, and judicial chaos would result." A
becoming modesty of inferior courts demands conscious realization of
the position that they occupy in the interrelation and operation of the
integrated judicial system of the nation.
After threshing carefully the multifarious issues raised by both
counsel for the petitioners and the respondents, this court prefers to
cut the Gordian knot and take up at once the two fundamental
questions presented, namely, (1) whether or not the constitutionality
of Act No. 4221 has been properly raised in these proceedings; and (2)
in the affirmative, whether or not said Act is constitutional.
Consideration of these issues will involve a discussion of certain
incidental questions raised by the parties.
To arrive at a correct conclusion on the first question, resort to
certain guiding principles is necessary. It is a well-settled rule that the
constitutionality of an act of the legislature will not be determined by
the courts unless that question its 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.
(McGirr vs. Hamilton and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L., pp.
76, 77; 12 C. J., pp. 780-782, 783.)
The question of the constitutionality of an act of the legislature is
frequently raised in ordinary actions. Nevertheless, resort may be
made to extraordinary legal remedies, particularly where the remedies
in the ordinary course of law even if available, are not plain, speedy
and adequate. Thus, in Cu Unjieng vs. Patstone ([1922], 42 Phil., 818),
this court held that the question of the constitutionality of a statute
may be raised by the petitioner in -mandamus proceedings ( see, also,
12 C. J., p. 783); and in Government of the Philippine
Islands vs. Springer ([1927], 50 Phil., 259 [affirmed in
Springer vs. Government of the Philippine Islands (1928), 277 U. S.,
189; 72 Law. ed., 845]), this court declared an act of the legislature
unconstitutional in an action of quo warranto brought in the name of
the Government of the Philippines. It has also been held that the
constitutionality of a statute may be questioned in habeas
corpus proceedings (12 C. J., p. 783; Bailey on Habeas Corpus, Vol. I,
pp. 97, 117), although there are authorities to the contrary; on an
application for injunction to restrain action under the challenged
statute (mandatory, seeCruz vs. Youngberg [1931], 56 Phil., 234); and
even on an application for preliminary injunction where the
determination of the constitutional question is necessary to a decision
of the case. (12 C. J., p. 783.) The same may be said as
regards prohibition and certiorari. (Yu Cong Eng vs. Trinidad [1925], 47
Phil., 385; [1926], 271 U. S., 500: 70 Law. ed., 1059; Bell vs. First
Judicial District Court [1905], 28 Nev., 280; 81 Pac., 875; 113 A. S. R.,
854; 6 Ann. Cas., 982; 1 L. R. A. [N. S], 843, and cases cited). The case
of Yu Cong Eng vs. Trinidad, supra, decided by this court twelve years
ago was, like the present one, an original action for certiorari and
prohibition. The constitutionality of Act No. 2972, popularly known as
the Chinese Bookkeeping Law, was there challenged by the
petitioners, and the constitutional issue was met squarely by the
respondents in a demurrer. A point was raised "relating to the
propriety of the constitutional question being decided in original
proceedings in prohibition." This court decided to take up the
constitutional question and, with two justices dissenting, held that Act
No. 2972 was constitutional. The case was elevated on writ of
certiorari to the Supreme Court of the United States which reversed
the judgment of this court and held that the Act was invalid. (271 U. S.,
500; 70 Law. ed., 1059.) On the question of jurisdiction, however, the
Federal Supreme Court, though its Chief Justice, said:
"By the Code of Civil Procedure of the Philippine Islands,
section 516, the Philippine supreme court is granted concurrent
jurisdiction in prohibition with courts of first instance over inferior
tribunals or persons, and original jurisdiction over courts of first
instance, when such courts are exercising functions without or in
excess of their jurisdiction. It has been held by that Court that the
question of the validity of a criminal statute must usually be raised
by a defendant in the trial court and be carried regularly in review
to the Supreme Court. (Cadwallader-Gibson Lumber Co. vs. Del
Rosario, 26 Phil., 192.) But in this case where a new act seriously
affected numerous persons and extensive property rights, and was
likely to cause a multiplicity of actions, the Supreme Court
exercised its discretion to bring the issue of the act's validity
promptly before it and decide it in the interest of the orderly
administration of justice. The court relied by analogy upon the
cases of Ex parte Young (209 U. S., 123; 52 Law. ed., 714; 13 L. R. A.
[N. S.], 932; 28 Sup. Ct. Rep., 441; 14 Ann. Cas., 764;
Traux vs. Raich, 239 U. S., 33, 60 Law. ed., 131; L. R. A. 1916D, 545;
36 Sup. Ct. Rep., 7; Ann. Cas., 1917B, 283; and Wilson vs. New, 243
U. S., 332; 61 Law. ed., 755; L. R. A. 1917E, 938; 37 Sup. Ct. Rep.,
298; Ann. Cas., 1918A, 1024). Although objection to the jurisdiction
was raised by demurrer to the petition, this is now disclaimed on
behalf of the respondents, and both parties ask a decision on the
merits. In view of broad powers in prohibition granted to that court
under the Island Code, we acquiesce in the desire of the parties."
The writ of prohibition is an extraordinary judicial writ issuing out
of a court of superior jurisdiction and directed to an inferior court, for
the purpose of preventing the inferior tribunal from usurping a
jurisdiction with which it is not legally vested.) (High, Extraordinary
Legal Remedies, p. 705.) The general rule, although there is a conflict
in the cases, is that the writ of prohibition will not lie where the
inferior court has jurisdiction independent of the statute the
constitutionality of which is questioned, because in such cases the
inferior court having jurisdiction may itself determine the
constitutionality of the statute, and its decision may be subject to
review, and consequently the complainant in such cases ordinarily has
adequate remedy by appeal without resort to the writ of prohibition.
But where the inferior court or tribunal derives its jurisdiction
exclusively from an unconstitutional statute, it may be prevented by
the writ of prohibition from enforcing that statute . (50 C. J., 670; Ex
parte Roundtree [1874], 51 Ala., 42; In re Macfarland. 30 App. [D. C.],
365; Curtis vs. Cornish [1912], 109 Me., 384; 84 A., 799;
Pennington vs. Woolfolk [1880], 79 Ky., 13; State vs. Godfrey [1903], 54
W. Va., 54; 46 S. E., 185; Arnold vs. Shields [1837], 5 Dana, 19; 30 Am.
Dec., 669.)
Courts of First Instance sitting in probation proceedings derive
their jurisdiction solely from Act No. 4221 which prescribes in detailed
manner the procedure for granting probation to accused persons after
their conviction has become final and before they have served their
sentence. It is true that at common law the authority of the courts to
suspend temporarily the execution of a sentence is recognized and,
according to a number of state courts, including those of
Massachusetts, Michigan, New York, and Ohio, the power is inherent in
the courts (Commonwealth vs. Dowdican's Bail [1874], 115 Mass., 133;
People vs. Stickel [1909], 156 Mich., 557; 121 N. W., 497; People ex
rel. Forsyth vs. Court of Sessions [1894], 141 N. Y., 288; Weber vs. State
[1898], 58 Ohio St., 616). But, in the leading case of Ex parte United
States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E, 1178; 37
Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the Supreme Court of the
United States expressed the opinion that under the common law the
power of the court was limited to temporary suspension, and brushed
aside the contention as to inherent judicial power saying, through
Chief Justice White:
"Indisputably under our constitutional system the right to try
offenses against the criminal laws and upon conviction to impose
the punishment provided by law is judicial, and it is equally to be
conceded that, in exerting the powers vested in them on such
subject, courts inherently possess ample right to exercise
reasonable, that is, judicial, discretion to enable them to wisely
exert their authority. But these concessions afford no ground for
the contention as to power here made, since it must rest upon the
 proposition that the power to enforce begets inherently a
discretion to permanently refuse to do so. And the effect of the
proposition urged upon the distribution of powers made by the
Constitution will become apparent when it is observed that
indisputable also is it that the authority to define and fix the
punishment for crime is legislative and includes the right in
advance to bring within judicial discretion, for the purpose of
executing the statute, elements of consideration which would be
otherwise beyond the scope of judicial authority, and that the right
to relieve from the punishment, fixed by law and ascertained
according to the methods by it provided belongs to the executive
department."
Justice Carson, in his illuminating concurring opinion in the case
of Director of Prisons vs. Judge of First Instance of Cavite (29 Phil.,
265), decided by this court in 1915, also reached the conclusion that
the power to suspend the execution of sentences pronounced in
criminal cases is not inherent in the judicial function. "All are agreed",
he said, "that in the absence of statutory authority, it does not lie
within the power of the courts to grant such suspensions." (at p. 278.)
Both petitioners and respondents are correct, therefore, when they
argue that a Court of First Instance sitting in probation proceedings is
a court of limited jurisdiction. Its jurisdiction in such proceedings is
conferred exclusively by Act No. 4221 of the Philippine Legislature.
It is, of course, true that the constitutionality of a statute will not
be considered on application for prohibition where the question has
not been properly brought to the attention of the court by objection of
some kind (Hill vs. Tarver [1901], 130 Ala., 592; 30 S., 499; State ex
rel. Kelly vs. Kirby [1914], 260 Mo., 120; 168 S. W., 746). In the case at
bar, it is unquestionable that the constitutional issue has been
squarely presented not only before this court by the petitioners but
also before the trial court by the private prosecution. The respondent,
Hon. Jose O. Vera, however, acting as judge of the court below,
declined to pass upon the question on the ground that the private
prosecutor, not being a party whose rights are affected by the statute,
may not raise said question. The respondent judge cited Cooley on
Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and
762), and McGlue vs. Essex County ([1916], 225 Mass., 59; 113 N. E.,
742, 743), as authority for the proposition that a court will not consider
any attack made on the constitutionality of a statute by one who has
no interest in defeating it because his rights are not affected by its
operation. The respondent judge further stated that it may not motu
proprio take up the constitutional question and, agreeing with Cooley
that "the power to declare a legislative enactment void is one which
the judge, conscious of the fallibility of the human judgment, will
shrink from exercising in any case where he can conscientiously and
with due regard to duty and official oath decline the responsibility"
(Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded on the
assumption that Act No. 4221 is constitutional. While, therefore, the
court a quoadmits that the constitutional question was raised before
it, it refused to consider the question solely because it was not raised
by a proper party. Respondents herein reiterate this view. The
argument is advanced that the private prosecution has no personality
to appear in the hearing of the application for probation of defendant
Mariano Cu Unjieng in criminal case No. 42648 of the Court of First
Instance of Manila, and hence the issue of constitutionality was not
properly raised in the lower court. Although, as a general rule, only
those who are parties to a suit may question the constitutionality of a
statute involved in a judicial decision, it has been held that since the
decree pronounced by a court without jurisdiction is void, where the
jurisdiction of the court depends on the validity of the statute in
question, the issue of constitutionality will be considered on its being
brought to the attention of the court by persons interested in the
effect to be given the statute. (12 C. J., sec. 184, p. 766.) And, even if
we were to concede that the issue was not properly raised in the court
below by the proper party, it does not follow that the issue may not be
here raised in an original action of certiorari and prohibition. It is true
that, as a general rule, the question of constitutionality must be raised
at the earliest opportunity, so that if not raised by the pleadings,
ordinarily it may not be raised at the trial, and if not raised in the trial
court, it will not be considered on appeal. (12 C. J., p. 786. See, also,
Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.)
But we must state that the general rule admits of exceptions. Courts,
in the exercise of sound discretion, may determine the time when a
question affecting the constitutionality of a statute should be
presented. (In re Woolsey [1884], 95 N. Y., 135, 144.) Thus, in criminal
cases, although there is a very sharp conflict of authorities, it is said
that the question may be raised for the first time at any stage of the
proceedings, either in the trial court or on appeal. (12 C. J., p. 786.)
Even in civil cases, it has been held that it is the duty of a court to
pass on the constitutional question, though raised for the first time on
appeal, if it appears that a determination of the question is necessary
to a decision of the case. (McCabe's Adm'x. vs. Maysville & B. S. R. Co.
[1910], 136 Ky., 674; 124 S. W., 892; Lohmeyervs. St. Louis Cordage Co.
[1908], 214 Mo., 685; 113 S. W., 1108; Carmody vs. St. Louis Transit Co.
[1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a
constitutional question will be considered by an appellate court at any
time, where it involves the jurisdiction of the court below
(State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of
this court to consider the constitutional question raised for the first
time before this court in these proceedings, we turn again and point
with emphasis to the case of Yu Cong Eng vs. Trinidad, supra. And on
the hypothesis that the Hongkong & Shanghai Banking Corporation,
represented by the private prosecution, is not the proper party to raise
the constitutional question here — a point we do not now have to
decide — we are of the opinion that the People of the Philippines,
represented by the Solicitor-General and the Fiscal of the City of
Manila, is such a proper party in the present proceedings. The
unchallenged rule is that the person who impugns the validity of a
statute must have a personal and substantial interest in the case such
that he has sustained, or will sustain, direct injury as a result of its
enforcement. It goes without saying that if Act No. 4221 really violates
the Constitution, the People of the Philippines, in whose name the
present action is brought, has a substantial interest in having it set
aside. Of greater import than the damage caused by the illegal
expenditure of public funds is the mortal wound inflicted upon the
fundamental law by the enforcement of an invalid statute. Hence, the
well-settled rule that the state can challenge the validity of its own
laws. In Government of the Philippine Islands vs. Springer ([1927], 50
Phil., 259 (affirmed in Springer vs. Government of the Philippine
Islands [1928], 277 U. S., 189; 72 Law. ed., 845), this court declared an
act of the legislature unconstitutional in an action instituted in behalf
of the Government of the Philippines. In Attorney General vs. Perkins
([1889], 73 Mich., 303, 311, 312; 41 N. W. 426, 428, 429), the State of
Michigan, through its Attorney General, instituted quo
warranto proceedings to test the right of the respondents to renew a
mining corporation, alleging that the statute under which the
respondents base their right was unconstitutional because it impaired
the obligation of contracts. The capacity of the chief law officer of the
state to question the constitutionality of the statute was itself
questioned. Said the Supreme Court of Michigan, through Champlin, J.:
". . . The idea seems to be that the people are estopped from
questioning the validity of a law enacted by their representatives;
that to an accusation by the people of Michigan of usurpation upon
their government, a statute enacted by the people of Michigan is
an adequate answer. The last proposition is true, but, if the statute
relied on in justification is unconstitutional, it is a statute only in
form, and lacks the force of law, and is of no more saving effect to
justify action under it than if it had never been enacted. The
constitution is the supreme law, and to its behests the courts, the
legislature, and the people must bow. . . . The legislature and the
respondents are not the only parties in interest upon such
constitutional questions. As was remarked by Mr. Justice Story, in
speaking of an acquiescence by a party affected by an
unconstitutional act of the legislature: 'The people have a deep
 and vested interest in maintaining all the constitutional limitations
upon the exercise of legislative powers.' (Allen vs. Mckeen, 1 Sum.,
314.)"
In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an
original action (mandamus) was brought by the Attorney-General of
Kansas to test the constitutionality of a statute of the state. In
disposing of the question whether or not the state may bring the
action, the Supreme Court of Kansas said:
". . . The state is a proper party — indeed, the proper party —
to bring this action. The state is always interested where the
integrity of its Constitution or statutes is involved.
"'It has an interest in seeing that the will of the Legislature is
not disregarded, and need not, as an individual plaintiff must, show
grounds of fearing more specific injury. (State vs. Kansas City, 60
Kan., 518 [57 Pac., 118]'). (State vs. Lawrence, 80 Kan., 707; 103
Pac., 839.)
"Where the constitutionality of a statute is in doubt the
state's law officer, its Attorney-General, or county attorney, may
exercise his best judgment as to what sort of action he will bring
to have the matter determined, either by quo warranto to challenge
its validity (State vs. Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L. R.
A., 662), by mandamus to compel obedience to its terms
(State vs. Dolley, 82 Kan., 533; 108 Pac., 846), or by injunction to
restrain proceedings under its questionable provisions (State ex
rel. vs. City of Neodesha, 3 Kan. App., 319; 45 Pac., 122)."
Other courts have reached the same conclusion (See State vs. St.
Louis S. W. Ry. Co. [1917], 197 S. W., 1006; State vs. S. H. Kress & Co.
[1934], 155 S., 823; Statevs. Walmsley [1935], 181 La., 597; 160 S., 91;
State vs. Board of County Comr's [1934], 39 Pac. [2d], 286; First Const.
Co. of Brooklyn vs. State [1917], 221 N. Y., 295; 116 N. E., 1020;
Bush vs. State [1918], 187 Ind., 339; 119 N. E., 417; State vs. Watkins
[1933], 176 La., 837; 147 S., 8, 10, 11). In the case last cited, the
Supreme Court of Louisiana said:
"It is contended by counsel for Herbert Watkins that a district
attorney, being charged with the duty of enforcing the laws, has no
right to plead that a law is unconstitutional. In support of the
argument, three decisions are cited, viz.: State ex rel. Hall, District
Attorney, vs. Judge of Tenth Judicial District (33 La. Ann., 1222);
State ex rel. Nicholls, Governor vs. Shakespeare, Mayor of New
Orleans (41 La. Ann., 156; 6 So., 592); and State ex rel. Banking Co.,
etc. vs. Heard, Auditor (47 La. Ann., 1679; 18 So., 746; 47 L. R. A.,
512). These decisions do not forbid a district attorney to plead that
a statute is unconstitutional if he finds it in conflict with one
which it is his duty to enforce. In State ex rel. Hall, District
Attorney, vs. Judge, etc., the ruling was that the judge should not,
 merely because he believed a certain statute to be
unconstitutional, forbid the district attorney to file a bill of
information charging a person with a violation of the statute. In
other words, a judge should not judicially declare a statute
unconstitutional until the question of constitutionality is tendered
for decision, and unless it must be decided in order to determine
the right of a party litigant. State ex rel. Nicholls, Governor, etc., is
authority for the proposition merely that an officer on whom a
statute imposes the duty of enforcing its provisions cannot avoid
the duty upon the ground that he considers the statute
unconstitutional, and hence in enforcing the statute he is immune
from responsibility if the statute be unconstitutional. State ex
rel. Banking Co., etc., is authority for the proposition merely that
executive officers, e. g., the state auditor and state treasurer,
should not decline to perform ministerial duties imposed upon
them by a statute, on the ground that they believe the statute is
unconstitutional.
"It is the duty of a district attorney to enforce the criminal
laws of the state, and, above all, to support the Constitution of the
state. If, in the performance of his duty he finds two statutes in
conflict with each other, or one which repeals another, and if, in his
judgment, one of the two statutes is unconstitutional, it is his duty
to enforce the other; and, in order to do so, he is compelled to
submit to the court, by way of a plea, that one of the statutes is
unconstitutional. If it were not so, the power of the Legislature
would be free from constitutional limitations in the enactment of
criminal laws."
The respondents do not seem to doubt seriously the correctness
of the general proposition that the state may impugn the validity of its
laws. They have not cited any authority running clearly in the opposite
direction. In fact, they appear to have proceeded on the assumption
that the rule as stated is sound but that it has no application in the
present case, nor may it be invoked by the City Fiscal in behalf of the
People of the Philippines, one of the petitioners herein, the principal
reasons being that the validity of the Probation Act cannot be attacked
for the first time before this court, that the City Fiscal is estopped
from attacking the validity of the Act and, not being authorized to
enforce laws outside of the City of Manila, cannot challenge the
validity of the Act in its application outside said city. (Additional
memorandum of respondents, October 23, 1937, pp. 8, 10, 17 and 23.)
The mere fact that the Probation Act has been repeatedly relied
upon in the past and all that time has not been attacked as
unconstitutional by the Fiscal of Manila but, on the contrary, has been
impliedly regarded by him as constitutional, is no reason for
considering the People of the Philippines estopped from now assailing
its validity. For courts will pass upon a constitutional question only
when presented before it in bona fide cases for determination, and the
fact that the question has not been raised before is not a valid reason
for refusing to allow it to be raised later. The fiscal and all others are
justified in relying upon the statute and treating it as valid until it is
held void by the courts in proper cases.
It remains to consider whether the determination of the
constitutionality of Act No. 4221 is necessary to the resolution of the
instant case. For, ". . . while the court will meet the question with
firmness, where its decision is indispensable, it is the part of wisdom,
and a just respect for the legislature, renders it proper, to waive it, if
the case in which it arises, can be decided on other points." ( Ex
parte Randolph [1833], 20 F. Cas. No. 11,558; 2 Brock., 447. Vide,
also, Hoover vs. Wood [1857], 9 Ind., 286, 287.) It has been held that
the determination of a constitutional question is necessary whenever
it is essential to the decision of the case (12 C. J., p. 782, citing Long
Sault Dev. Co. vs. Kennedy [1913], 158 App. Div., 398; 143 N. Y. Supp.,
454 [aff. 212 N. Y., 1; 105 N. E., 849; Ann. Cas. 1915D, 56; and app dism
242 U. S., 272]; Hesse vs. Ledesma, 7 Porto Rico Fed., 520;
Cowan vs. Doddridge, 22 Gratt [63 Va.], 458; Union Line
Co .vs. Wisconsin R. Comm., 146 Wis., 523; 129 N. W., 605), as where
the right of a party is founded solely on a statute, the validity of which
is attacked. (12 C. J., p. 782, citing Central Glass Co. vs. Niagara F. Ins.
Co., 131 La., 513; 59 S., 972; Cheney vs. Beverly, 188 Mass., 81; 74 N.
E., 306). There is no doubt that the respondent Cu Unjieng draws his
privilege to probation solely from Act No. 4221 now being assailed.
Apart from the foregoing considerations, this court will also take
cognizance of the fact that the Probation Act is a new addition to our
statute books and its validity has never before been passed upon by
the courts; that many persons accused and convicted of crime in the
City of Manila have applied for probation; that some of them are
already on probation; that more people will likely take advantage of
the Probation Act in the future; and that the respondent Mariano Cu
Unjieng has been at large for a period of about four years since his
first conviction. All await the decision of this court on the
constitutional question. Considering, therefore, the importance which
the instant case has assumed and to prevent multiplicity of suits,
strong reasons of public policy demand that the constitutionality of
Act No. 4221 be now resolved. (Yu Cong Eng vs. Trinidad [1925], 47
Phil., 385; [1926], 271 U. S., 500; 70 Law. ed., 1059. See 6 R. C. L., pp.
77, 78; People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442, 444;
Ann. Cas. 1914C, 616; Borginis vs. Falk Co. [1911], 147 Wis., 327; 133 N.
W., 209, 211; 37 L. R. A. [N. S.], 489; Dimayuga and
Fajardovs. Fernandez [1922], 43 Phil., 304.) In Yu Cong
Eng vs. Trinidad, supra, an analogous situation confronted us. We said:
"Inasmuch as the property and personal rights of nearly twelve
thousand merchants are affected by these proceedings, and inasmuch
as Act No. 2972 is a new law not yet interpreted by the courts, in the
interest of the public welfare and for the advancement of public policy,
we have determined to overrule the defense of want of jurisdiction in
order that we may decide the main issue. We have here an
extraordinary situation which calls for a relaxation of the general
rule." Our ruling on this point was sustained by the Supreme Court of
the United States. A more binding authority in support of the view we
have taken can not be found.
We have reached the conclusion that the question of the
constitutionality of Act No. 4221 has been properly raised. Now for the
main inquiry: Is the Act unconstitutional?
Under a doctrine peculiarly American, it is the office and duty of
the judiciary to enforce the Constitution. This court, by clear
implication from the provisions of section 2, subsection 1, and section
10, of Article VIII of the Constitution, may declare an act of the
national legislature invalid because in conflict with the fundamental
law. It will not shirk from its sworn duty to enforce the Constitution.
And, in clear cases, it will not hesitate to give effect to the supreme
law by setting aside a statute in conflict therewith. This is of the
essence of judicial duty.
This court is not unmindful of the fundamental criteria in cases of
this nature that all reasonable doubts should be resolved in favor of
the constitutionality of a statute. An act of the legislature approved by
the executive, is presumed to be within constitutional limitations. The
responsibility of upholding the Constitution rests not on the courts
alone but on the legislature as well. "The question of the validity of
every statute is first determined by the legislative department of the
government itself." (U. S. vs. Ten Yu [1912], 24 Phil., 1, 10;
Case vs. Board of Health and Heiser [1913], 24 Phil., 250, 276; U.
S. vs. Joson [1913], 26 Phil., 1.) And a statute finally comes before the
courts sustained by the sanction of the executive. The members of the
Legislature and the Chief Executive have taken an oath to support the
Constitution and it must be presumed that they have been true to this
oath and that in enacting and sanctioning a particular law they did not
intend to violate the Constitution. The courts cannot but cautiously
exercise its power to overturn the solemn declarations of two of the
three grand departments of the government. (6 R. C. L., p. 101.) Then,
there is that peculiar political philosophy which bids the judiciary to
reflect the wisdom of the people as expressed through an elective
Legislature and an elective Chief Executive. It follows, therefore, that
the courts will not set aside a law as violative of the Constitution
except in a clear case. This is a proposition too plain to require a
citation of authorities.
One of the counsel for respondents, in the course of his
impassioned argument, called attention to the fact that the President
of the Philippines had already expressed his opinion against the
constitutionality of the Probation Act, adverting that as to the
Executive the resolution of this question was a foregone conclusion.
Counsel, however, reiterated his confidence in the integrity and
independence of this court. We take notice of the fact that the
President in his message dated September 1, 1937, recommended to
the National Assembly the immediate repeal of the Probation Act (No.
4221); that this message resulted in the approval of Bill No. 2417 of the
National Assembly repealing the Probation Act, subject to certain
conditions therein mentioned; but that said bill was vetoed by the
President on September 13, 1937, much against his wish, "to have
stricken out from the statute books of the Commonwealth a law . . .
unfair and very likely unconstitutional." It is sufficient to observe in
this connection that, in vetoing the bill referred to, the President
exercised his constitutional prerogative. He may express the reasons
which he may deem proper for taking such a step, but his reasons are
not binding upon us in the determination of actual controversies
submitted for our determination. Whether or not the Executive should
express or in any manner insinuate his opinion on a matter
encompassed within his broad constitutional power of veto but which
happens to be at the same time pending determination in this court is
a question of propriety for him exclusively to decide or determine.
Whatever opinion is expressed by him under these circumstances,
however, cannot sway our judgment one way or another and prevent us
from taking what in our opinion is the proper course of action to take
in a given case. If it is ever necessary for us to make any vehement
affirmance during this formative period of our political history, it is
that we are independent of the Executive no less than of the
Legislative department of our government — independent in the
performance of our functions, undeterred by any consideration, free
from politics, indifferent to popularity, and unafraid of criticism in the
accomplishment of our sworn duty as we see it and as we understand
it.
The constitutionality of Act No. 4221 is challenged on three
principal grounds: (1) That said Act encroaches upon the pardoning
power of the Executive; (2) that it constitutes an undue delegation of
legislative power; and (3) that it denies the equal protection of the
laws.
 1. Section 21 of the Act of Congress of August 29, 1916,
commonly known as the Jones Law, in force at the time of the
approval of Act No. 4221, otherwise known as the Probation Act, vests
in the Governor- General of the Philippines "the exclusive power to
grant pardons and reprieves and remit fines and forfeitures". This
power is now vested in the President of the Philippines. (Art. VII, sec.
11, subsec. 6.) The provisions of the Jones Law and the Constitution
differ in some respects. The adjective "exclusive" found in the Jones
Law has been omitted from the Constitution. Under the Jones Law, as
at common law, pardon could be granted any time after the
commission of the offense, either before or after conviction
(Vide Constitution of the United States, Art. II, sec. 2; In re Lontok
[1922], 43 Phil., 293). The Governor-General of the Philippines was thus
empowered, like the President of the United States, to pardon a person
before the facts of the case were fully brought to light. The framers of
our Constitution thought this undesirable and, following most of the
state constitutions, provided that the pardoning power can only be
exercised "after conviction". So, too, under the new Constitution, the
pardoning power does not extend to "cases of impeachment". This is
also the rule generally followed in the United States ( Vide Constitution
of the United States, Art. II, sec. 2). The rule in England is different.
There, a royal pardon can not be pleaded in bar of an impeachment;
"but," says Blackstone, "after the impeachment has been solemnly
heard and determined, it is not understood that the king's royal grace
is further restrained or abridged." (Vide, Ex parte Wells [1856], 18
How., 307; 15 Law. ed., 421; Com. vs. Lockwood [1872], 109 Mass., 323;
12 Am. Rep., 699; Sterling vs. Drake [1876], 29 Ohio St., 457; 23 Am.
Rep., 762.) The reason for the distinction is obvious. In England,
judgment on impeachment is not confined to mere "removal from
office and disqualification to hold and enjoy any office of honor, trust,
or profit under the Government" (Art. IX, sec. 4, Constitution of the
Philippines) but extends to the whole punishment attached by law to
the offense committed. The House of Lords, on a conviction may, by its
sentence, inflict capital punishment, perpetual banishment, fine or
imprisonment, depending upon the gravity of the offense committed,
together with removal from office and incapacity to hold office.
(Com. vs.Lockwood, supra.) Our Constitution also makes specific
mention of "commutation" and of the power of the executive to
impose, in the pardons he may grant, such conditions, restrictions and
limitations as he may deem proper. Amnesty may be granted by the
President under the Constitution but only with the concurrence of the
National Assembly. We need not dwell at length on the significance of
these fundamental changes. It is sufficient for our purposes to state
that the pardoning power has remained essentially the same. The
question is: Has the pardoning power of the Chief Executive under the
Jones Law been impaired by the Probation Act?
As already stated, the Jones Law vests the pardoning power
exclusively in the Chief Executive. The exercise of the power may not,
therefore, be vested in anyone else. ". . . The benign prerogative of
mercy reposed in the executive cannot be taken away nor fettered by
any legislative restrictions, nor can like power be given by the
legislature to any other officer or authority. The coordinate
departments of government have nothing to do with the pardoning
power, since no person properly belonging to one of the departments
can exercise any powers appertaining to either of the others except in
cases expressly provided for by the constitution." (20 R. C. L., pp. 540,
541, and cases cited.) ". . . where the pardoning power is conferred on
the executive without express or implied limitations, the grant is
exclusive, and the legislature can neither exercise such power itself
nor delegate it elsewhere, nor interfere with or control the proper
exercise thereof, . . .." (12 C. J., pp. 838, 839, and cases cited.) If Act
No. 4221, then, confers any pardoning power upon the courts it is for
that reason unconstitutional and void. But does it?
In the famous Killitts decision involving an embezzlement case,
the Supreme Court of the United States ruled in 1916 that an order
indefinitely suspending sentence was void. (Ex parte United States
[1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A. 1917E, 1178; 37 Sup. Ct.
Rep., 72; Ann. Cas. 1917B, 355.) Chief Justice White, after an
exhaustive review of the authorities, expressed the opinion of the
court that under the common law the power of the court was limited to
temporary suspension and that the right to suspend sentence
absolutely and permanently was vested in the executive branch of the
government and not in the judiciary. But, the right of Congress to
establish probation by statute was conceded. Said the court through
its Chief Justice: ". . . and so far as the future is concerned, that is, the
causing of the imposition of penalties as fixed to be subject, by
probation legislation or such other means as the legislative mind may
devise, to such judicial discretion as may be adequate to enable
courts to meet by the exercise of an enlarged but wise discretion the
infinite variations which may be presented to them for judgment,
recourse must be had to Congress whose legislative power on the
subject is in the very nature of things adequately complete." (Quoted
in Riggs vs. United States [1926], 14 F. [2d], 5, 6.) This decision led the
National Probation Association and others to agitate for the
enactment by Congress of a federal probation law. Such action was
finally taken on March 4, 1925 (chap. 521, 43 Stat. at L. 1259, U. S. C.
title 18, sec. 724). This was followed by an appropriation to defray the
salaries and expenses of a certain number of probation officers
chosen by civil service. (Johnson, Probation for Juveniles and Adults,
p. 14.)
In United States vs. Murray ([1925], 275 U. S., 347; 48 Sup. Ct.
Rep., 146; 72 Law. ed., 309), the Supreme Court of the United States,
through Chief Justice Taft, held that when a person sentenced to
imprisonment by a district court has begun to serve his sentence, that
court has no power under the Probation Act of March 4, 1925 to grant
him probation even though the term at which sentence was imposed
had not yet expired. In this case of Murray, the constitutionality of the
Probation Act was not considered but was assumed. The court traced
the history of the Act and quoted from the report of the Committee on
the Judiciary of the United States House of Representatives (Report
No. 1377, 68th Congress, 2d Session) the following statement:
"Prior to the so-called Killitts case, rendered in December,
1916, the district courts exercised a form of probation either by
suspending sentence or by placing the defendants under state
probation officers or volunteers. In this case, however ( Ex
parte United States, 242 U. S., 27; 61 L. ed., 129; L. R. A., 1917E,
1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the Supreme
Court denied the right of the district courts to suspend sentence.
In the same opinion the court pointed out the necessity for action
by Congress if the courts were to exercise probation powers in the
future. . . .
"Since this decision was rendered, two attempts have been
made to enact probation legislation. In 1917, a bill was favorably
reported by the Judiciary Committee and passed the House. In
1920, the Judiciary Committee again favorably reported a
probation bill to the House, but it was never reached for definite
action.
"If this bill is enacted into law, it will bring the policy of the
Federal government with reference to its treatment of those
convicted of violations of its criminal laws in harmony with that of
the states of the Union. At the present time every state has a
probation law, and in all but twelve states the law applies both to
adult and juvenile offenders." (See, also, Johnson, Probation for
Juveniles and Adults [1928], Chap. I.)
The constitutionality of the federal probation law has been
sustained by inferior federal courts. In Riggs vs. United States supra,
the Circuit Court of Appeals of the Fourth Circuit said:
"Since the passage of the Probation Act of March 4, 1925, the
questions under consideration have been reviewed by the Circuit
Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and the
constitutionality of the act fully sustained, and the same held in no
manner to encroach upon the pardoning power of the President.
This case will be found to contain an able and comprehensive
 review of the law applicable here. It arose under the act we have
to consider, and to it and the authorities cited therein special
reference is made (Nix vs. James, 7 F. [2d], 590, 594), as is also to
a decision of the Circuit Court of Appeals of the Seventh Circuit
(Kriebel vs. U. S., 10 F. [2d], 762), likewise construing the Probation
Act."
We have seen that in 1916 the Supreme Court of the United
States; in plain and unequivocal language, pointed to Congress as
possessing the requisite power to enact probation laws, that a federal
probation law was actually enacted in 1925, and that the
constitutionality of the Act has been assumed by the Supreme Court of
the United States in 1928 and consistently sustained by the inferior
federal courts in a number of earlier cases.
We are fully convinced that the Philippine Legislature, like the
Congress of the United States, may legally enact a probation law
under its broad power to fix the punishment of any and all penal
offenses. This conclusion is supported by other authorities. In Ex
parte Bates ([1915], 20 N. M., 542; L. R. A. 1916A, 1285; 151 Pac., 698,
the court said: "It is clearly within the province of the Legislature to
denominate and define all classes of crime, and to prescribe for each
a minimum and maximum punishment." And in State vs. Abbott ([1910],
87 S. C., 466; 33 L. R. A. [N. S.], 112; 70 S. E., 6; Ann. Cas. 1912B, 1189),
the court said: "The legislative power to set punishment for crime is
very broad, and in the exercise of this power the general assembly
may confer on trial judges, if it sees fit, the largest discretion as to the
sentence to be imposed, as to the beginning and end of the
punishment and whether it should be certain or indeterminate or
conditional." (Quoted in State vs. Teal [1918], 108 S. C., 455; 95 S. E.,
69.) Indeed, the Philippine Legislature has defined all crimes and fixed
the penalties for their violation. Invariably, the legislature has
demonstrated the desire to vest in the courts — particularly the trial
courts — large discretion in imposing the penalties which the law
prescribes in particular cases. It is believed that justice can best be
served by vesting this power in the courts, they being in a position to
best determine the penalties which an individual convict, peculiarly
circumstanced, should suffer. Thus, while courts are not allowed to
refrain from imposing a sentence merely because, taking into
consideration the degree of malice and the injury caused by the
offense, the penalty provided by law is clearly excessive, the courts
being allowed in such cases to submit to the Chief Executive, through
the Department of Justice, such statement as it may deem proper
(see art. 5, Revised Penal Code), in cases where both mitigating and
aggravating circumstances are attendant in the commission of a crime
and the law provides for a penalty composed of two indivisible
penalties, the courts may allow such circumstances to offset one
another in consideration of their number and importance, and to apply
the penalty according to the result of such compensation. (Art. 63, rule
4, Revised Penal Code; U. S. vs. Reguera and Asuategui [1921], 41 Phil.,
506.) Again, Article 64, paragraph 7, of the Revised Penal Code
empowers the courts to determine, within the limits of each period, in
case the penalty prescribed by law contains three periods, the extent
of the penalty according to the number and nature of the aggravating
and mitigating circumstances and the extent of the evil produced by
the crime. In the imposition of fines, the courts are allowed to fix any
amount within the limits established by law, considering not only the
mitigating and aggravating circumstances, but more particularly the
wealth or means of the culprit. (Art. 66, Revised Penal Code.) Article
68, paragraph 1, of the same Code provides that "a discretionary
penalty shall be imposed" upon a person under fifteen but over nine
years of age, who has not acted without discernment, but always
lower by two degrees at least than that prescribed by law for the
crime which he has committed. Article 69 of the same Code provides
that in case of "incomplete self-defense", i. e., when the crime
committed is not wholly excusable by reason of the lack of some of
the conditions required to justify the same or to exempt from criminal
liability in the several cases mentioned in articles 11 and 12 of the
Code, "the courts shall impose the penalty in the period which may be
deemed proper, in view of the number and nature of the conditions of
exemption present or lacking." And, in case the commission of what
are known as "impossible" crimes, "the court, having in mind the
social danger and the degree of criminality shown by the offender,"
shall impose upon him either arresto mayor or a fine ranging from 200
to 500 pesos. (Art. 59, Revised Penal Code.)
Under our Revised Penal Code, also, one-half of the period of
preventive imprisonment is deducted from the entire term of
imprisonment, except in certain cases expressly mentioned (art. 29);
the death penalty is not imposed when the guilty person is more than
seventy years of age, or where upon appeal or revision of the case by
the Supreme Court, all the members thereof are not unanimous in their
voting as to the propriety of the imposition of the death penalty (art.
47, see also,sec. 133, Revised Administrative Code, as amended by
Commonwealth Act No. 3); the death sentence is not to be inflicted
upon a woman within the three years next following the date of the
sentence or while she is pregnant, or upon any person over seventy
years of age (art. 83); and when a convict shall become insane or an
imbecile after final sentence has been pronounced, or while he is
serving his sentence, the execution of said sentence shall be
suspended with regard to the personal penalty during the period of
such insanity or imbecility (art. 79).
But the desire of the legislature to relax what might result in the
undue harshness of the penal laws is more clearly demonstrated in
various other enactments, including the probation Act. There is the
Indeterminate Sentence Law enacted in 1933 as Act No. 4103 and
subsequently amended by Act No. 4225, establishing a system of
parole (secs. 5 to 10) and granting the courts large discretion in
imposing the penalties of the law. Section 1 of the law as amended
provides: "Hereafter, in imposing a prison sentence for an offense
punished by the Revised Penal Code, or its amendments, the court
shall sentence the accused to an indeterminate sentence the
maximum term of which shall be that which, in view of the attending
circumstances, could be properly imposed under the rules of the said
Code, and to a minimum which shall be within the range of the penalty
next lower to that prescribed by the Code for the offense; and if the
offense is punished by any other law, the court shall sentence the
accused to an indeterminate sentence, the maximum term of which
shall not exceed the maximum fixed by said law and the minimum
shall not be less than the minimum term prescribed by the same."
Certain classes of convicts are, by section 2 of the law, excluded from
the operation thereof. The Legislature has also enacted the Juvenile
Delinquency Law (Act No. 3203) which was subsequently amended by
Act No. 3559. Section 7 of the original Act and section 1 of the
amendatory Act have become article 80 of the Revised Penal Code,
amended by Act No. 4117 of the Philippine Legislature and recently
reamended byCommonwealth Act No. 99 of the National Assembly.
Finally came the (Adult) Probation Act now in question. In this Act is
again manifested the intention of the legislature to "humanize" the
penal laws. It allows, in effect, the modification in particular cases of
the penalties prescribed by law by permitting the suspension of the
execution of the judgment in the discretion of the trial court, after due
hearing and after Investigation of the particular circumstances of the
offense, the criminal record, if any, of the convict, and his social
history. The Legislature has in reality decreed that in certain cases no
punishment at all shall be suffered by the convict as long as the
conditions of probation are faithfully observed. If this be so, then, it
cannot be said that the Probation Act comes in conflict with the power
of the Chief Executive to grant pardons and reprieves, because, to use
the language of the Supreme Court of New Mexico, "the element of
punishment or the penalty for the commission of a wrong, while to be
declared by the courts as a judicial function under and within the
limits of law as announced by legislative acts, concerns solely the
procedure and conduct of criminal causes, with which the executive
can have nothing to do." (Ex parte Bates, supra.) In Williams vs. State
([1926], 162 Ga., 327; 133 S. E., 843), the court upheld the
constitutionality of the Georgia probation statute against the
contention that it attempted to delegate to the courts the pardoning
power lodged by the constitution in the governor of the state and
observed that "while the governor alone is vested with the power to
pardon after final sentence has been imposed by the courts, the power
of the courts to impose any penalty which may be from time to time
prescribed by law and in such manner as may be defined cannot be
questioned."
We realize, of course, the conflict which the American cases
disclose. Some cases hold it unlawful for the legislature to vest in the
courts the power to suspend the operation of a sentence, by probation
or otherwise, as to do so would encroach upon the pardoning power of
the executive. (In re Webb [1895], 89 Wis., 354; 27 L. R. A., 356; 46 Am.
St. Rep., 846; 62 N. W., 177; 9 Am. Crim. Rep., 702; State ex
rel. Summer field vs. Moran [1919], 43 Nev., 150; 182 Pac., 927; Ex
parte Clendenning [1908], 22 Okla., 108; 1 Okla. Crim. Rep., 227; 19 L.
R. A. [N. S.], 1041; 132 Am. St. Rep., 628; 97 Pac., 650;
People vs. Barrett [1903], 202 Ill., 287; 67 N. E., 23; 63 L. R. A., 82; 95
Am. St. Rep., 230; Snodgrass vs. State [1912], 67 Tex. Crim. Rep., 615;
41 L. R. A. [N. S.], 1144; 150 S. W., 162; Ex parte Shelor [1910], 33 Nev.,
361; 111 Pac., 291; Neal vs. State [1898], 104 Ga., 509; 42 L. R. A., 190;
69 Am. St. Rep., 175; 30 S. E., 858; State ex rel. Payne vs. Anderson
[1921], 43 S. D., 630; 181 N. W., 839; People vs.Brown, 54 Mich., 15; 19
N. W., 571; State vs. Dalton [1903], 109 Tenn., 544; 72 S. W., 456.)
Other cases, however, hold contra. (Nix vs. James 1925; C. C. A.,
9th], 7 F. [2d], 590; Archer vs. Snook [1926; D. C.], 10 F. [2d], 567;
Riggs. vs. United States [1926; C. C. A. 4th], 14]) [2d], 5;
Murphy vs. State [1926], 171 Ark., 620; 286 S. W., 871; 48 A. L. R., 1189;
Re Giannini [1912], 18 Cal. App., 166; 122 Pac., 831; Re Nachnaber
[1928], 89 Cal. App., 530; 265 Pac., 392; Ex parte De Voe [1931], 114
Cal. App., 730; 300 Pac., 874; People vs. Patrick [1897], 118 Cal., 332;
50 Pac., 425; Martin vs.People [1917], 69 Colo., 60; 168 Pac., 1171;
Belden vs. Hugo [1914], 88 Conn., 50; 91 A., 369, 370, 371;
Williams vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs.Heise
[1913], 257 Ill., 443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind.,
534; 35 N. E., 179; 23 L. R. A., 859; St. Hilarie, Petitioner [1906], 101
Me., 522; 64 Atl., 882; People vs. Stickle [1909], 156 Mich., 557; 121 N.
W., 497; State vs. Fjolander [1914], 125 Minn., 529; State ex
rel. Bottomnly vs. District Court [1925], 73 Mont., 541; 237 Pac., 525;
State vs. Everitt [1913], 164 N. C., 399; 79 S. E., 274; 47 L. R. A. [N. S.],
848; State ex rel. Buckley vs. Drew [1909], 75 N. H., 402; 74 Atl., 875;
State vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl. 424; Ex parte Bates
[1915], 20 N. M., 542; L. R. A., 1916 A, 1285; 151 Pac., 698; People ex
rel. Forsyth vs. Court of Sessions [1894], 141 N. Y., 288; 23 L. R. A., 856;
36 N. E., 386; 15 Am. Crim. Rep., 675; People ex rel. Sullivan vs. Flynn
[1907], 55 Misc., 639; 106 N. Y. Supp., 928; People vs. Goodrich [1914],
149 N. Y. Supp., 406; Moore vs. Thorn [1935], 245 App. Div., 180; 281 N.
Y. Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A., 1915C, 1169; 149 N.
W., 568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P., 781;
State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69; State vs. Abbot [1910],
87 S. C., 466; 33 L. R. A. [N. S.], 112; 70 S. E., 6; Ann. Cas., 1912B, 1189;
Fults vs. State [1854], 34 Tenn., 232; Woods vs. State [1814], 130 Tenn.,
100; 169 S. W., 558; Baker vs. State [1913], 70 Tex., Crim. Rep., 618; 158
S. W., 998; Cook vs. State [1914], 73 Tex. Crim. Rep., 548; 165 S. W.,
573; King vs. State [1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890;
Clare vs. State [1932], 122 Tex. Crim. Rep., 211; 54 S. W. [2d], 127; Re
Hall [1927], 100 Vt., 197; 136 A., 24; Richardson vs. Com. [1921], 131
Va., 802; 109 S. E., 460; State vs. Mallahan [1911], 65 Wash., 287; 118
Pac., 42; State ex rel. Tingstad vs. Starwich [1922], 119 Wash., 561;
206 Pac., 29; 26 A. L. R., 393; 396.) We elect to follow this long catena
of authorities holding that the courts may be legally authorized by the
legislature to suspend sentence by the establishment of a system of
probation however characterized. Stateex rel. Tingstad vs. Starwich
([1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved
particular mention. In that case, a statute enacted in 1921 which
provided for the suspension of the execution of a sentence until
otherwise ordered by the court, and required that the convicted
person be placed under the charge of a parole or peace officer during
the term of such suspension, on such terms as the court may
determine, was held constitutional and as not giving the court a power
in violation of the constitutional provision vesting the pardoning power
in the chief executive of the state. (Vide, also, Re Giannini [1912], 18
Cal. App., 166; 122 Pac., 831.)
Probation and pardon are not coterminous; nor are they the same.
They are actually distinct and different from each other, both in origin
and in nature. In People ex rel. Forsyth vs. Court of Sessions ([1894],
141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L. R. A., 856; 15 Am. Crim.
Rep., 675), the Court of Appeals of New York said:
". . . The power to suspend sentence and the power to grant
reprieves and pardons, as understood when the constitution was
adopted, are totally distinct and different in their origin and nature.
The former was always a part of the judicial power; the latter was
always a part of the executive power. The suspension of the
sentence simply postpones the judgment of the court temporarily
or indefinitely, but the conviction and liability following it, and all
civil disabilities, remain and become operative when judgment is
 rendered. A pardon reaches both the punishment prescribed for the
offense and the guilt of the offender. It releases the punishment,
and blots out of existence the guilt, so that in the eye of the law,
the offender is as innocent as if he had never committed the
offense. It removes the penalties and disabilities, and restores him
to all his civil rights. It makes him, as it were, a new man, and
gives him a new credit and capacity. ( Ex parte Garland, 71 U. S., 4
Wall., 333; 18 Law. ed., 366; U. S. vs. Klein, 80 U. S., 13 Wall., 128;
20 Law. ed., 519; Knote vs. U. S. 95 U. S., 149; 24 Law. ed., 442.)
"The framers of the federal and state constitutions were
perfectly familiar with the principles governing the power to grant
pardons, and it was conferred by these instruments upon the
executive with full knowledge of the law upon the subject, and the
words of the constitution were used to express the authority
formerly exercised by the English crown, or by its representatives
in the colonies. (Ex parte Wells, 59 U. S., 18 How., 307; 15 Law. ed.,
421.) As this power was understood, it did not comprehend any
part of the judicial functions to suspend sentence, and it was never
intended that the authority to grant reprieves and pardons should
abrogate, or in any degree restrict, the exercise of that power in
regard to its own judgments, that criminal courts had so long
maintained. The two powers, so distinct and different in their
nature and character, were still left separate and distinct, the one
to be exercised by the executive, and the other by the judicial
department. We therefore conclude that a statute which, in terms,
authorizes courts of criminal jurisdiction to suspend sentence in
certain cases after conviction, — a power inherent in such courts
at common law, which was understood when the constitution was
adopted to be an ordinary judicial function, and which, ever since
its adoption, has been exercised by the courts, is a valid exercise
of legislative power under the constitution. It does not encroach, in
any just sense, upon the powers of the executive, as they have
been understood and practiced from the earliest times." (Quoted
with approval in Director of Prisons vs. Judge of First Instance of
Cavite [1915], 29 Phil., 265, Carson, J., concurring, at pp. 294, 295.)
In probation, the probationer is in no true sense, as in pardon, a
free man. He is not finally and completely exonerated. He is not
exempt from the entire punishment which the law inflicts. Under the
Probation Act, the probationer's case is not terminated by the mere
fact that he is placed on probation. Section 4 of the Act provides that
the probation may be definitely terminated and the probationer finally
discharged from supervision only after the period of probation shall
have been terminated and the probation officer shall have submitted a
report, and the court shall have found that the probationer has
complied with the conditions of probation. The probationer, then,
during the period of probation, remains in legal custody — subject to
the control of the probation officer and of the court; and, he may be
rearrested upon the non-fulfillment of the conditions of probation and,
when rearrested, may be committed to prison to serve the sentence
originally imposed upon him. (Secs. 2, 3, 5 and 6, Act No. 4221.)
"The probation described in the act is not pardon. It is not
complete liberty, and may be far from it. It is really a new mode of
punishment, to be applied by the judge in a proper case, in
substitution of the imprisonment and fine prescribed by the
criminal laws. For this reason its application is as purely a judicial
act as any other sentence carrying out the law deemed applicable
to the offense. The executive act of pardon, on the contrary, is
against the criminal law, which binds and directs the judges, or
rather is outside of and above it. There is thus no conflict with the
pardoning power, and no possible unconstitutionality of the
Probation Act for this cause." (Archer vs. Snook [1926], 10 F. [2d],
567, 569.)
Probation should also be distinguished from reprieve and from
commutation of the sentence. Snodgrass vs. State ([1912], 67 Tex.
Crim. Rep., 615; 41 L. R. A. [N. S.], 1144; 150 S. W., 162), is relied upon
most strongly by the petitioners as authority in support of their
contention that the power to grant pardons and reprieves, having been
vested exclusively upon the Chief Executive by the Jones Law, may not
be conferred by the legislature upon the courts by means of a
probation law authorizing the indefinite judicial suspension of
sentence. We have examined that case and found that although the
Court of Criminal Appeals of Texas held that the probation statute of
the state in terms conferred on the district courts the power to grant
pardons to persons convicted of crime, it also distinguished between
suspension of sentence on the one hand, and reprieve and
commutation of sentence on the other. Said the court, through
Harper, J.:
"That the power to suspend the sentence does not conflict
with the power of the Governor to grant reprieves is settled by the
decisions of the various courts; it being held that the distinction
between a 'reprieve' and a suspension of sentence is that a
reprieve postpones the execution of the sentence to a day certain,
whereas a suspension is for an indefinite time. (Carnal vs. People,
1 Parker, Cr. R., 262; In re Buchanan, 146 N. Y., 264; 40 N. E., 883),
and cases cited in 7 Words & Phrases, pp. 6115, 6116. This law
cannot be held in conflict with the power confiding in the Governor
to grant commutations of punishment, for commutation is but to
change the punishment assessed to a less punishment."
In State ex rel. Bottomly vs. District Court ([1925], 73 Mont., 541;
237 Pac., 525), the Supreme Court of Montana had under consideration
the validity of the adult probation law of the state enacted in 1913,
now found in sections 12078—12086, Revised Codes of 1921. The court
held the law valid as not impinging upon the pardoning power of the
executive. In a unanimous decision penned by justice Holloway, the
court said:
". . . the terms 'pardon,' 'commutation,' and 'respite' each had
a well understood meaning at the time our Constitution was
adopted, and no one of them was intended to comprehend the
suspension of the execution of a judgment as that phrase is
employed in sections 12078- 12086. A 'pardon' is an act of grace,
proceeding from the power intrusted with the execution of the
laws which exempts the individual on whom it is bestowed from
the punishment the law inflicts for a crime he has committed
(United States vs. Wilson, 7 Pet., 150; 8 Law. ed., 640); It is a
remission of guilt (State vs. Lewis, 111 La., 693; 35 So., 816), a
forgiveness of the offense (Cookvs. Middlesex County, 26 N. J. Law,
326; Ex parte Powell, 73 Ala., 517; 49 Am. Rep., 71). 'Commutation'
is a remission of a part of the punishment; a substitution of a less
penalty for the one originally imposed (Lee vs. Murphy, 22 Grat.
[Va.], 789; 12 Am. Rep., 563; Rich vs. Chamberlain, 107 Mich., 381;
65 N. W., 235). A 'reprieve' or 'respite' is the withholding of a
sentence for an interval of time (4 Blackstone's Commentaries,
394), a postponement of execution (Carnal vs. People, 1 Parker, Cr.
R. [N. Y.], 272), a temporary suspension of execution
(Butler vs. State, 97 Ind., 373).
"Few adjudicated cases are to be found in which the validity
of a statute similar to our section 12078 has been determined; but
the same objections have been urged against parole statutes
which vest the power to parole in persons other than those to
whom the power of pardon is granted, and these statutes have
been upheld quite uniformly, as a reference to the numerous cases
cited in the notes to Woods vs. State (130 Tenn., 100; 169 S. W.,
558, reported in L. R. A., 1915F, 531), will disclose. ( See, also, 20 R.
C. L., 524.)"
We conclude that the Probation Act does not conflict with the
pardoning power of the Executive. The pardoning power, in respect to
those serving their probationary sentences, remains as full and
complete as if the Probation Law had never been enacted. The
President may yet pardon the probationer and thus place it beyond the
power of the court to order his rearrest and imprisonment.
(Riggs vs. United States [1926], 14 F. [2d], 5, 7.)
2. But while the Probation Law does not encroach upon the
pardoning power of the executive and is not for that reason void, does
section 11 thereof constitute, as contended, an undue delegation of
legislature power?
 Under our constitutional system, the powers of government are
distributed among three coordinate and substantially independent
organs: the legislative, the executive and the judicial. Each of these
departments of the government derives its authority from the
Constitution which, in turn, is the highest expression of popular will.
Each has exclusive cognizance of the matters within its jurisdiction,
and is supreme within its own sphere.
The power to make laws — the legislative power — is vested in a
bicameral Legislature by the Jones Law (sec. 12) and in a unicameral
National Assembly by the Constitution (Art. VI, sec. 1, Constitution of
the Philippines). The Philippine Legislature or the National Assembly
may not escape its duties and responsibilities by delegating that
power to any other body or authority. Any attempt to abdicate the
power is unconstitutional and void, on the principle that potestas
delegata non delegare potest. This principle is said to have originated
with the glossators, was introduced into English law through a
misreading of Bracton, there developed as a principle of agency, was
established by Lord Coke in the English public law in decisions
forbidding the delegation of judicial power, and found its way into
America as an enlightened principle of free government. It has since
become an accepted corollary of the principle of separation of powers.
(5 Encyc. of the Social Sciences, p. 66.) The classic statement of the
rule is that of Locke, namely: "The legislative neither must nor can
transfer the power of making laws to anybody else, or place it
anywhere but where the people have." (Locke on Civil Government,
sec 142.) Judge Cooley enunciates the doctrine in the following oft-
quoted language: "One of the settled maxims in constitutional law is,
that the power conferred upon the legislature to make laws cannot be
delegated by that department to any other body or authority. Where
the sovereign power of the state has located the authority, there it
must remain; and by the constitutional agency alone the laws must be
made until the Constitution itself is changed. The power to whose
judgment, wisdom, and patriotism this high prerogative has been
intrusted cannot relieve itself of the responsibility by choosing other
agencies upon which the power shall be devolved, nor can it substitute
the judgment, wisdom, and patriotism of any other body for those to
which alone the people have seen fit to confide this sovereign trust."
(Cooley on Constitutional Limitations, 8th ed., Vol. I, p. 224. Quoted
with approval in U. S. vs. Barrias [1908], 11 Phil., 327.) This court posits
the doctrine "on the ethical principle that such a delegated power
constitutes not only a right but a duty to be performed by the delegate
by the instrumentality of his own judgment acting immediately upon
the matter of legislation and not through the intervening mind of
another. (U. S. vs. Barrias, supra, at p. 330.)
 The rule, however, which forbids the delegation of legislative
power is not absolute and inflexible. It admits of exceptions. An
exception sanctioned by immemorial practice permits the central
legislative body to delegate legislative powers to local authorities.
(Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660; U.
S. vs.Salaveria [1918], 39 Phil., 102; Stoutenburgh vs. Hennick [1889],
129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256; State vs. Noyes
[1855], 30 N. H., 279.) "It is a cardinal principle of our system of
government, that local affairs shall be managed by local authorities,
and general affairs by the central authority; and hence while the rule
is also fundamental that the power to make laws cannot be delegated,
the creation of municipalities exercising local self government has
never been held to trench upon that rule. Such legislation is not
regarded as a transfer of general legislative power, but rather as the
grant of the authority to prescribe local regulations, according to
immemorial practice, subject of course to the interposition of the
superior in cases of necessity." (Stoutenburgh vs. Hennick, supra.) On
quite the same principle, Congress is empowered to delegate
legislative power to such agencies in the territories of the United
States as it may select. A territory stands in the same relation to
Congress as a municipality or city to the state government. (United
States vs. Heinszen [1907], 206 U. S., 370; 27 Sup. Ct. Rep., 742.; 51 L.
ed., 1098; 11 Ann. Cas., 688; Dorr vs. United States [1904], 195 U. S.,
138; 24 Sup. Ct. Rep., 808; 49 Law. ed., 128; 1 Ann. Cas., 697.) Courts
have also sustained the delegation of legislative power to the people
at large. Some authorities maintain that this may not be done (12 C. J.,
pp. 841, 842; 6 R. C. L., p. 164, citing People vs.Kennedy [1913], 207 N.
Y., 533; 101 N. E., 442; Ann. Cas., 1914C, 616). However, the question of
whether or not a state has ceased to be republican in form because of
its adoption of the initiative and referendum has been held not to be a
judicial but a political question (Pacific States Tel. & Tel.
Co. vs. Oregon [1912], 223 U. S., 118; 56 Law. ed., 377; 32 Sup. Ct. Rep.,
224), and as the constitutionality of such laws has been looked upon
with favor by certain progressive courts, the sting of the decisions of
the more conservative courts has been pretty well drawn. (Opinions of
the Justices [1894], 160 Mass., 586; 36 N. E., 488; 23 L. R. A., 113;
Kiernan vs.Portland [1910], 57 Ore., 454; 111 Pac., 379; 112 Pac., 602;
37 L. R. A. [N. S.], 332; Pacific States Tel. & Tel. Co. vs. Oregon, supra.)
Doubtless, also, legislative power may be delegated by the
Constitution itself. Section 14, paragraph 2, of article VI of the
Constitution of the Philippines provides that "The National Assembly
may by law authorize the President, subject to such limitations and
restrictions as it may impose, to fix within specified limits, tariff rates,
import or export quotas, and tonnage and wharfage dues." And section
16 of the same article of the Constitution provides that "In times of
war or other national emergency, the National Assembly may by law
authorize the President, for a limited period and subject to such
restrictions as it may prescribe, to promulgate rules and regulations to
carry out a declared national policy." It is beyond the scope of this
decision to determine whether or not, in the absence of the foregoing
constitutional provisions, the President could be authorized to
exercise the powers thereby vested in him. Upon the other hand,
whatever doubt may have existed has been removed by the
Constitution itself.
The case before us does not fall under any of the exceptions
hereinabove mentioned.
The challenged section of Act No. 4221 is section 11 which reads
as follows:
"This Act shall apply only in those provinces in which the
respective provincial boards have provided for the sale of a
probation officer at rates not lower than those now provided for
provincial fiscals. Said probation officers shall be appointed by the
Secretary of Justice and shall be subject to the direction of the
Probation Office." (Italics ours.)
In testing whether a statute constitutes an undue delegation of
legislative power or not, it is usual to inquire whether the statute was
complete in all its terms and provisions when it left the hands of the
legislature so that nothing was left to the judgment of any other
appointee or delegate of the legislature. (6 R. C. L., p. 165.) In United
States vs. Ang Tang Ho ([1922], 43 Phil., 1), this court adhered to the
foregoing rule when it held an act of the legislature void in so far as it
undertook to authorize the Governor-General, in his discretion, to issue
a proclamation fixing the price of rice and to make the sale of it in
violation of the proclamation a crime. (See and cf. Compañia General
de Tabacos vs. Board of Public Utility Commissioners [1916], 34 Phil.,
136.) The general rule, however, is limited by another rule that to a
certain extent matters of detail may be left to be filled in by rules and
regulations to be adopted or promulgated by executive officers and
administrative boards. (6 R. C. L., pp. 177-179.)
For the purposes of the Probation Act, the provincial boards may
be regarded as administrative bodies endowed with power to
determine when the Act should take effect in their respective
provinces. They are the agents or delegates of the legislature in this
respect. The rules governing delegation of legislative power to
administrative and executive officers are applicable or are at least
indicative of the rule which should be here adopted. An examination of
a variety of cases on delegation of power to administrative bodies will
show that the ratio decidendi is at variance but, it can be broadly
asserted that the rationale revolves around the presence or absence
of a standard or rule of action — or the sufficiency thereof — in the
statute, to aid the delegate in exercising the granted discretion. In
some cases, it is held that the standard is sufficient; in others that it
is insufficient; and in still others that it is entirely lacking. As a rule,
an act of the legislature is incomplete and hence invalid if it does not
lay down any rule or definite standard by which the administrative
officer or board may be guided in the exercise of the discretionary
powers delegated to it. (See Schecter vs. United States [1925], 295 U.
S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837; 97 A. L. R., 947;
People ex rel. Rice vs.Wilson Oil Co. [1936], 364 Ill., 406; 4 N. E. [2d],
847; 107 A. L. R., 1500 and cases cited. See also R. C. L., title
"Constitutional Law", sec. 174.) In the case at bar, what rules are to
guide the provincial boards in the exercise of their discretionary power
to determine whether or not the Probation Act shall apply in their
respective provinces? What standards are fixed by the Act? We do not
find any and none has been pointed to us by the respondents. The
probation Act does not, by the force of any of its provisions, fix and
impose upon the provincial boards any standard or guide in the
exercise of their discretionary power. What is granted, if we may use
the language of Justice Cardozo in the recent case of Schecter, supra,
is a "roving commission" which enables the provincial boards to
exercise arbitrary discretion. By section 11 of the Act, the legislature
does seemingly on its own authority extend the benefits of the
Probation Act to the provinces but in reality leaves the entire matter
for the various provincial boards to determine. In other words, the
provincial boards of the various provinces are to determine for
themselves, whether the Probation Law shall apply to their provinces
or not at all. The applicability and application of the Probation Act are
entirely placed in the hands of the provincial boards. If a provincial
board does not wish to have the Act applied in its province, all that it
has to do is to decline to appropriate the needed amount for the salary
of a probation officer. The plain language of the Act is not susceptible
of any other interpretation. This, to our minds, is a virtual surrender of
legislative power to the provincial boards.
"The true distinction", says Judge Ranney, "is between the
delegation of power to make the law, which necessarily involves a
discretion as to what it shall be, and conferring an authority or
discretion as to its execution, to be exercised under and in
pursuance of the law. The first cannot be done; to the latter no
valid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Clinton
County Comrs. [1852]; 1 Ohio St., 77, 88. See also, Sutherland on
Statutory Construction, sec. 68.) To the same effect are decisions
of this court in Municipality of Cardona vs. Municipality of
 Binangonan ([1917], 36 Phil., 547); Rubi vs. Provincial Board of
Mindoro ([1919], 39 Phil., 660), and Cruz vs. Youngberg ([1931], 56
Phil., 234). In the first of these cases, this court sustained the
validity of a law conferring upon the Governor-General authority to
adjust provincial and municipal boundaries. In the second case,
this court held it lawful for the legislature to direct non-Christian
inhabitants to take up their habitation on unoccupied lands to be
selected by the provincial governor and approved by the provincial
board. In the third case, it was held proper for the legislature to
vest in the Governor-General authority to suspend or not, at his
discretion, the prohibition of the importation of foreign cattle, such
prohibition to be raised "if the conditions of the country make this
advisable or if disease among foreign cattle has ceased to be a
menace to the agriculture and livestock of the lands."
It should be observed that in the case at bar we are not
concerned with the simple transference of details of execution or the
promulgation by executive or administrative officials of rules and
regulations to carry into effect the provisions of a law. If we were,
recurrence to our own decisions would be sufficient. (U. S. vs.Barrias
[1908], 11 Phil., 327; U. S. vs. Molina [1914], 29 Phil., 119;
Alegre vs. Collector of Customs [1929], 53 Phil., 394; Cebu Autobus
Co. vs. De Jesus [1931], 56 Phil., 446; U. S. vs. Gomez [1915], 31 Phil.,
218; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.)

It is contended, however, that a legislative act may be made to

the effect as law after it leaves the hands of the legislature. It is true
that laws may be made effective on certain contingencies, as by
proclamation of the executive or the adoption by the people of a
particular community (6 R. C. L., 116. 170-172; Cooley, Constitutional
Limitations, 8th ed., Vol. I, p. 227). In Wayman vs. Southard ([1825], 10
Wheat. 1; 6 Law. ed., 253), the Supreme Court of the United States
ruled that the legislature may delegate a power not legislative which it
may itself rightfully exercise. (Vide, also, Dowling vs. Lancashire Ins.
Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to
ascertain facts is such a power which may be delegated. There is
nothing essentially legislative in ascertaining the existence of facts or
conditions as the basis of the taking into effect of a law. That is a
mental process common to all branches of the government.
(Dowling vs. Lancashire Ins. Co., supra;In re Village of North
Milwaukee [1896], 93 Wis., 616; 97 N. W., 1033; 33 L. R. A., 938;
Nash vs. Fries [1906], 129 Wis., 120; 108 N. W., 210; Field vs. Clark
[1892], 143 U. S., 649; 12 Sup. Ct., 495; 36 Law. ed., 294.)
Notwithstanding the apparent tendency, however, to relax the rule
prohibiting delegation of legislative authority on account of the
complexity arising from social and economic forces at work in this
modern industrial age (Pfiffner, Public Administration [1936] ch. XX;
Laski, "The Mother of Parliaments", Foreign Affairs, July, 1931, Vol. IX,
No. 4, pp. 569-579; Beard, "Squirt-Gun Politics", in Harper's Monthly
Magazine, July, 1930, Vol. CLXI, pp. 147, 152), the orthodox
pronouncement of Judge Cooley in his work on Constitutional
Limitations finds restatement in Prof. Willoughby's treatise on the
Constitution of the United States in the following language — speaking
of declaration of legislative power to administrative agencies: "The
principle which permits the legislature to provide that the
administrative agent may determine when the circumstances are such
as require the application of a law is defended upon the ground that at
the time this authority is granted, the rule of public policy, which is the
essence of the legislative act, is determined by the legislature. In
other words, the legislature, as it is its duty to do, determines that,
under given circumstances, certain executive or administrative action
is to be taken, and that, under other circumstances, different or no
action at all is to be taken. What is thus left to the administrative
official is not the legislative determination of what public policy
demands, but simply the ascertainment of what the facts of the case
require to be done according to the terms of the law by which he is
governed." (Willoughby on the Constitution of the United States, 2nd
ed., Vol. III, p. 1637.) In Miller vs. Mayer, etc., of New York ([1883], 109
U. S., 385; 3 Sup. Ct. Rep., 228; 27 Law. ed., 971, 974), it was said: "The
efficiency of an Act as a declaration of legislative will must, of course,
come from Congress, but the ascertainment of the contingency upon
which the Act shall take effect may be left to such agencies as it may
designate." (See, also, 12 C. J., p. 864; State vs. Parker [1854], 26 Vt.,
357; Blanding vs. Burr [1859], 13 Cal., 343, 358.) The legislature, then,
may provide that a law shall take effect upon the happening of future
specified contingencies leaving to some other person or body the
power to determine when the specified contingency has arisen. But, in
the case at bar, the legislature has not made the operation of the
Probation Act contingent upon specified facts or conditions to be
ascertained by the provincial board. It leaves, as we have already said,
the entire operation or non-operation of the law upon the provincial
boards. The discretion vested is arbitrary because it is absolute and
unlimited. A provincial board need not investigate conditions or find
any fact, or await the happening of any specified contingency. It is
bound by no rule, — limited by no principle of expediency announced
by the legislature. It may take into consideration certain facts or
conditions; and, again, it may not. It may have any purpose or no
purpose at all. It need not give any reason or have any reason
whatsoever for refusing or failing to appropriate any funds for the
salary of a probation officer. This is a matter which rests entirely at its
pleasure. The fact that at some future time — we cannot say when —
the provincial boards may appropriate funds for the salaries of
probation officers and thus put the law into operation in the various
provinces will not save the statute. The time of its taking into effect,
we reiterate, would yet be based solely upon the will of the provincial
boards and not upon the happening of a certain specified contingency,
or upon the ascertainment of certain facts or conditions by a person or
body other than the legislature itself.
The various provincial boards are, in practical effect, endowed
with the power of suspending the operation of the Probation Law in
their respective provinces. In some jurisdictions, constitutions provide
that laws may be suspended only by the legislature or by its authority.
Thus, section 28, article I of the Constitution of Texas provides that
"No power of suspending laws in this state shall be exercised except
by the legislature"; and section 26, article I of the Constitution of
Indiana provides "That the operation of the laws shall never be
suspended, except by authority of the General Assembly." Yet, even
provisions of this sort do not confer absolute power of suspension
upon the legislature. While it may be undoubted that the legislature
may suspend a law, or the execution or operation of a law, a law may
not be suspended as to certain individuals only, leaving the law to be
enjoyed by others. The suspension must be general, and cannot be
made for individual cases or for particular localities. In
Holden vs. James ([1814], 11 Mass., 396; 6 Am. Dec., 174, 177, 178), it
was said:
"By the twentieth article of the declaration of rights in the
constitution of this commonwealth, it is declared that the power of
suspending the laws, or the execution of the laws, ought never to
be exercised but by the legislature, or by authority derived from it,
to be exercised in such particular cases only as the legislature
shall expressly provide for. Many of the articles in that declaration
of rights were adopted from the Magna Charta of England, and
from the bill of rights passed in the reign of William and Mary. The
bill of rights contains an enumeration of the oppressive acts of
James II, tending to subvert and extirpate the protestant religion,
and the laws and liberties of the kingdom; and the first of them is
the assuming and exercising a power of dispensing with and
suspending the laws, and the execution of the laws without
consent of parliament. The first article in the claim or declaration
of rights contained in the statute is, that the exercise of such
power, by regal authority without consent of parliament, is illegal.
In the tenth section of the same statute it is further declared and
enacted, that 'No dispensation by non obstante of or to any
statute, or any part thereof, should be allowed; but the same
 should be held void and of no effect, except a dispensation be
allowed of in such statute.' There is an implied reservation of
authority in the parliament to exercise the power here mentioned;
because, according to the theory of the English Constitution, 'that
absolute despotic power, which must in all governments reside
somewhere,' is intrusted to the parliament: 1 Bl. Com., 160.
"The principles of our government are widely different in this
particular. Here the sovereign and absolute power resides in the
people; and the legislature can only exercise what is delegated to
them according to the constitution. It is obvious that the exercise
of the power in question would be equally oppressive to the
subject, and subversive of his right to protection, 'according to
standing laws,' whether exercised by one man or by a number of
men. It cannot be supposed that the people when adopting this
general principle from the English bill of rights and inserting it in
our constitution, intended to bestow by implication on the general
court one of the most odious and oppressive prerogatives of the
ancient kings of England. it is manifestly contrary to the first
principles of civil liberty and natural justice, and to the spirit of our
constitution and laws, that any one citizen should enjoy privileges
and advantages which are denied to all others under like
circumstances; or that any one should be subject to losses,
damages, suits, or actions from which all others under like
circumstances are exempted."
To illustrate the principle: A section of a statute relative to dogs
made the owner of any dog liable to the owner of domestic animals
wounded by it for the damages without proving a knowledge of its
vicious disposition. By a provision of the act, power was given to the
board of supervisors to determine whether or not during the current
year their county should be governed by the provisions of the act of
which that section constituted a part. It was held that the legislature
could not confer that power. The court observed that it could no more
confer such a power than to authorize the board of supervisors of a
county to abolish in such county the days of grace on commercial
paper, or to suspend the statute of limitations. (Slinger vs. Henneman
[1875], 38 Wis., 504.) A similar statute in Missouri was held void for the
same reason in State vs. Field ([1853], 17 Mo., 529; 59 Am. Dec., 275.)
In that case a general statute formulating a road system contained a
provision that "if the county court of any county should be of opinion
that the provisions of the act should not be enforced, they might, in
their discretion, suspend the operation of the same for any specified
length of time, and thereupon the act should become inoperative in
such county for the period specified in such order; and thereupon
order the roads to be opened and kept in good repair, under the laws
theretofore in force." Said the court: ". . . this act, by its own
provisions, repeals the inconsistent provisions of a former act, and yet
it is left to the county court to say which act shall be in force in their
county. The act does not submit the question to the county court as an
original question, to be decided by that tribunal, whether the act shall
commence its operation within the county; but it became by its own
terms a law in every county not excepted by name in the act. It did
not, then, require the county court to do any act in order to give it
effect. But being the law in the county, and having by its provisions
superseded and abrogated the inconsistent provisions of previous
laws, the county court is . . . empowered, to suspend this act and
revive the repealed provisions of the former act.' When the question is
before the county court for that tribunal to determine which law shall
be in force, it is urged before us that the power then to be exercised by
the court is strictly legislative power, which under our constitution,
cannot be delegated to that tribunal or to any other body of men in the
state. In the present case, the question is not presented in the
abstract; for the county court of Saline county, after the act had been
for several months in force in that county, did by order suspend its
operation; and during that suspension the offense was committed
which is the subject of the present indictment . . .."
(See Mitchell vs. State [1901], 134 Ala., 392; 32 S., 687.)
True, the legislature may enact laws for a particular locality
different from those applicable to other localities and, while
recognizing the force of the principle hereinabove expressed, courts in
many jurisdictions have sustained the constitutionality of the
submission of option laws to the vote of the people. (6 R. C. L., p. 171.)
But option laws thus sustained treat of subjects purely local in
character which should receive different treatment in different
localities placed under different circumstances. "They relate to
subjects which, like the retailing of intoxicating drinks, or the running
at large of cattle in the highways, may be differently regarded in
different localities, and they are sustained on what seems to us the
impregnable ground, that the subject, though not embraced within the
ordinary powers of municipalities to make by-laws and ordinances, is
nevertheless within the class of public regulations, in respect to which
it is proper that the local judgment should control." (Cooley on
Constitutional Limitations, 5th ed., p. 148.) So that, while we do not
deny the right of local self-government and the propriety of leaving
matters of purely local concern in the hands of local authorities or for
the people of small communities to pass upon, we believe that in
matters of general legislation like that which treats of criminals in
general, and as regards the general subject of probation, discretion
may not be vested in a manner so unqualified and absolute as provided
in Act No. 4221. True, the statute does not expressly state that the
provincial boards may suspend the operation of the Probation Act in
particular provinces but, considering that, in being vested with the
authority to appropriate or not the necessary funds for the salaries of
probation officers, they thereby are given absolute discretion to
determine whether or not the law should take effect or operate in their
respective provinces, the provincial boards are in reality empowered
by the legislature to suspend the operation of the Probation Act in
particular provinces, the Act to be held in abeyance until the provincial
boards should decide otherwise by appropriating the necessary funds.
The validity of a law is not tested by what has been done but by what
may be done under its provisions. (Walter E. Olsen & Co. vs. Aldanese
and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.)
It is conceded that a great deal of latitude should be granted to
the legislature not only in the expression of what may be termed
legislative policy but in the elaboration and execution thereof.
"Without this power, legislation would become oppressive and yet
imbecile." (People vs. Reynolds, 5 Gilman, 1.) It has been said that
popular government lives because of the inexhaustible reservoir of
power behind it. It is unquestionable that the mass of powers of
government is vested in the representatives of the people and that
these representatives are no further restrained under our system than
by the express language of the instrument imposing the restraint, or
by particular provisions which by clear intendment, have that effect.
(Angara vs. Electoral Commission [1936], 35 Off. Gaz., 23;
Schneckenburger vs.Moran [1936], 35 Off. Gaz., 1317.) But, it should be
borne in mind that a constitution is both a grant and a limitation of
power and one of these time-honored limitations is that, subject to
certain exceptions, legislative power shall not be delegated.
We conclude that section 11 of Act No. 4221 constitutes an
improper and unlawful delegation of legislative authority to the
provincial boards and is, for this reason, unconstitutional and void.
3. It is also contended that the Probation Act violates the
provision of our Bill of Rights which prohibits the denial to any person
of the equal protection of the laws (Art. III, sec. 1, subsec. 1,
Constitution of the Philippines.)
This basic individual right sheltered by the Constitution is a
restraint on all the three grand departments of our government and on
the subordinate instrumentalities and subdivisions thereof, and on
many constitutional powers, like the police power, taxation and
eminent domain. The equal protection of the laws, sententiously
observes the Supreme Court of the United States, "is a pledge of the
protection of equal laws." (Yick Wo vs. Hopkins [1886], 118 U. S., 356;
30 Law. ed., 220; 6 Sup. Ct. Rep., 10464; Perley vs. North Carolina, 249
U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course, what may
be regarded as a denial of the equal protection of the laws is a
question not always easily determined. No rule that will cover every
case can be formulated. (Connolly vs. Union Sewer Pipe Co. [1902], 184
U. S., 540; 22 Sup. Ct. Rep., 431; 46 Law. ed., 679.) Class legislation
discriminating against some and favoring others is prohibited. But
classification on a reasonable basis, and not made arbitrarily or
capriciously, is permitted. (Finely vs. California [1911], 222 U. S., 28; 56
Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C. & S. F. Ry Co. vs.Ellis [1897],
165 U. S., 150; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255; Smith, Bell &
Co. vs. Natividad [1919], 40 Phil., 136.) The classification, however, to
be reasonable must be based on substantial distinctions which make
real differences; it must be germane to the purposes of the law; it
must not be limited to existing conditions only, and must apply equally
to each member of the class. (Borgnis vs. Falk. Co. [1911], 147 Wis.,
327, 353; 133 N. W., 209; 3 N. C. C. A., 649; 37 L. R. A. [N. S.], 489;
State vs. Cooley, 56 Minn., 540; 530-552; 58 N. W., 150;
Lindsley vs. Natural Carbonic Gas Co. [1911], 220 U. S., 61, 79, 55 Law.
ed., 369, 377; 31 Sup. Ct. Rep., 337; Ann. Cas., 1912C, 160; Lake Shore
& M. S. R. Co. vs. Clough [1917], 242 U. S., 375; 37 Sup. Ct. Rep., 144; 61
Law. ed., 374; Southern Ry. Co. vs. Greene [1910], 216 U. S., 400; 30
Sup. Ct. Rep., 287; 54 Law. ed., 536; 17 Ann. Cas., 1247;
Truax vs. Corrigan [1921], 257 U. S., 312; 12 C. J., pp. 1148, 1149.)
In the case at bar, however, the resultant inequality may be said
to flow from the unwarranted delegation of legislative power, although
perhaps this is not necessarily the result in every case. Adopting the
example given by one of the counsel for the petitioners in the course
of his oral argument, one province may appropriate the necessary fund
to defray the salary of a probation officer, while another province may
refuse or fail to do so. In such a case, the Probation Act would be in
operation in the former province but not in the latter. This means that
a person otherwise coming within the purview of the law would be
liable to enjoy the benefits of probation in one province while another
person similarly situated in another province would be denied those
same benefits. This is obnoxious discrimination. Contrariwise, it is
also possible for all the provincial boards to appropriate the necessary
funds for the salaries of the probation officers in their respective
provinces, in which case no inequality would result for the obvious
reason that probation would be in operation in each and every
province by the affirmative action of appropriation by all the provincial
boards. On that hypothesis, every person coming within the purview of
the Probation Act would be entitled to avail of the benefits of the Act.
Neither will there be any resulting inequality if no province, through its
provincial board, should appropriate any amount for the salary of the
probation officer — which is the situation now — and, also, if we
accept the contention that, for the purposes of the Probation Act, the
City of Manila should be considered as a province and that the
municipal board of said city has not made any appropriation for the
salary of a probation officer. These different situations suggested
show, indeed, that while inequality may result in the application of the
law and in the conferment of the benefits therein provided, inequality
is not in all cases the necessary result. But whatever may be the case,
it is clear that section 11 of the Probation Act creates a situation in
which discrimination and inequality are permitted or allowed. There
are, to be sure, abundant authorities requiring actual denial of the
equal protection of the law before courts should assume the task of
setting aside a law vulnerable on that score, but premises and
circumstances considered, we are of the opinion that section 11 of Act
No. 4221 permits of the denial of the equal protection of the law and is
on that account bad. We see no difference between a law which 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. (By analogy, Chy Lung vs. Freeman [1876],
292 U. S., 275; 23 Law. ed., 550; Henderson vs. Mayor [1876], 92 U. S.,
259; 23 Law. ed., 543; Ex parte Virginia [1880], 100 U. S., 339; 25 Law
ed., 676; Neal vs. Delaware [1881], 103 U. S., 370; 26 Law. ed., 567;
Soon Hing vs. Crowley [1885], 113 U. S., 703; 28 Law. ed., 1145; Yick
Wo vs. Hopkins [1886], 118 U. S., 356; 30 Law. ed., 220;
Williams vs. Mississippi [1897], 170 U. S., 218; 18 Sup. Ct. Rep., 583; 42
Law. ed., 1012; Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct.
Rep. 145; 55 Law. ed., 191; Sunday Lake Iron Co. vs. Wakefield [1918],
247 U. S., 450; 38 Sup. Ct. Rep., 495; 62 Law. ed., 1154.) In other words,
statutes may be adjudged unconstitutional because of their effect in
operation (General Oil Co. vs. Clain [1907], 209 U. S., 211; 28 Sup. Ct.
Rep., 475; 52 Law. ed., 754; State vs. Clement Nat. Bank [1911], 84 Vt.,
167; 78 Atl., 944; Ann. Cas., 1912D, 22). If a law has the effect of
denying the equal protection of the law it is unconstitutional. (6 R. C.
L. p. 372; Civil Rights Cases, 109 U. S., 3; 3 Sup. Ct. Rep., 18; 27 Law.
ed., 835; Yick Wo vs. Hopkins, supra; State vs. Montgomery, 94 Me.,
192; 47 Atl., 165; 80 A. S. R., 386; State vs. Dering, 84 Wis., 585; 54 N.
W., 1104; 36 A. S. R., 948; 19 L. R. A., 858.) Under section 11 of the
Probation Act, not only may said Act be in force in one or several
provinces and not be in force in the other provinces, but one province
may appropriate for the salary of a probation officer of a given year —
and have probation during that year — and thereafter decline to make
further appropriation, and have no probation in subsequent years.
While this situation goes rather to the abuse of discretion which
delegation implies, it is here indicated to show that the Probation Act
sanctions a situation which is intolerable in a government of laws, and
to prove how easy it is, under the Act, to make the guaranty of the
equality clause but "a rope of sand". (Brewer, J. Gulf C. & S. F. Ry.
Co. vs.Ellis [1897], 165 U. S., 150, 154; 41 Law. ed., 666; 17 Sup. Ct.
Rep., 255.)
Great reliance is placed by counsel for the respondents on the
case of Ocampo vs. United States ( [1914], 234 U. S., 91; 58 Law. ed.,
1231). In that case, the Supreme Court of the United States affirmed
the decision of this court (18 Phil., 1) by declining to uphold the
contention that there was a denial of the equal protection of the laws
because, as held in Missouri vs. Lewis (Bowman vs. Lewis) decided in
1880 (101 U. S., 220; 25 Law. ed., 991), the guaranty of the equality
clause does not require territorial uniformity. It should be observed,
however, that this case concerns the right to preliminary
investigations in criminal cases originally granted by General Orders
No. 58. No question of legislative authority was involved and the
alleged denial of the equal protection of the laws was the result of the
subsequent enactment of Act No. 612, amending the charter of the City
of Manila (Act No. 813) and providing in section 2 thereof that "in
cases triable only in the court of first instance of the City of Manila,
the defendant . . . shall not be entitled as of right to a preliminary
examination in any case where the prosecuting attorney, after a due
investigation of the facts . . . shall have presented an information
against him in proper form . . .." Upon the other hand, an analysis of
the arguments and the decision indicates that the investigation by the
prosecuting attorney — although not in the form had in the provinces
— was considered a reasonable substitute for the City of Manila,
considering the peculiar conditions of the city as found and taken into
account by the legislature itself.
Reliance is also placed in the case of Missouri vs. Lewis, supra.
That case has reference to a situation where the constitution of
Missouri permits appeals to the Supreme Court of the state from final
judgments of any circuit court, except those in certain counties for
which counties the constitution establishes a separate court of
appeals called the St. Louis Court of Appeals. The provision
complained of, then, is found in the constitution itself and it is the
constitution that makes the apportionment of territorial jurisdiction.
We are of the opinion that section 11 of the Probation Act is
unconstitutional and void because it is also repugnant to the equal-
protection clause of our Constitution.
 Section 11 of the Probation Act being unconstitutional and void
for the reasons already stated, the next inquiry is whether or not the
entire Act should be avoided.
"In seeking the legislative intent, the presumption is against
any mutilation of a statute, and the courts will resort to
elimination only where an unconstitutional provision is interjected
into a statute otherwise valid, and is so independent and separable
that its removal will leave the constitutional features and purposes
of the act substantially unaffected by the process."
(Riccio vs. Hoboken, 69 N. J. Law., 649, 662; 63 L.. R. A., 485; 55
Atl., 1109, quoted in Williams vs. Standard Oil Co. [1929], 278 U. S.,
235, 240; 73 Law. ed., 287, 309; 49 Sup. Ct. Rep., 115; 60 A. L. R.,
596.) In Barrameda vs. Moir ([1913], 25 Phil., 44, 47), this court
stated the well-established rule concerning partial invalidity of
statutes in the following language:
". . . where part of a statute is void, as repugnant to the
Organic Law, while another part is valid, the valid portion, if
separable from the invalid, may stand and be enforced. But in order
to do this, 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 they had supposed that they could not
constitutionally enact the other. (Mutual Loan Co. vs. Martell, 200
Mass., 482; 86 N. E., 916; 128 A. S. R., 446; Supervisors of Holmes
Co. vs. Black Creek Drainage District, 99 Miss., 739; 55 Sou., 963.)
Enough must remain to make a complete, intelligible, and valid
statute, which carries out the legislative intent. (Pearson vs. Bass,
132 Ga., 117; 63 S. E., 798.) The void provisions must be eliminated
without causing results affecting the main purpose of the Act, in a
manner contrary to the intention of the Legislature. (State vs. A. C.
L. R., Co., 56 Fla., 617, 642; 47 Sou., 969; Harper vs. Galloway, 58
Fla., 255; 51 Sou., 226; 26 L. R. A., N. S., 794; Connolly vs. Union
Sewer Pipe Co., 184 U. S., 540, 565; People vs. Strassheim, 240 Ill.,
279, 300; 88 N. E., 821; 22 L. R. A., N. S., 1135; State vs. Cognevich,
124 La., 414; 50 Sou., 439.) The language used in the invalid part of
a statute can have no legal force or efficacy for any purpose
whatever, and what remains must express the legislative will,
independently of the void part, since the court has no power to
legislate. (State vs. Junkin, 85 Neb., 1; 122 N. W., 473; 23 L. R. A., N.
S., 839; Vide, also, U. S. vs. Rodriguez [1918], 38 Phil., 759;
Pollock vs. Farmers' Loan and Trust Co. [1895], 158 U. S., 601, 635;
39 Law. ed., 1108, 1125; 15 Sup. Ct. Rep., 912; 6 R. C. L., 121.)"
It is contended that even if section 11, which makes the
Probation Act applicable only in those provinces in which the
respective provincial boards have provided for the salaries of
probation officers were inoperative on constitutional grounds, the
remainder of the Act would still be valid and may be enforced. We
should be inclined to accept the suggestion but for the fact that said
section is, in our opinion, so inseparably linked with the other portions
of the Act that with the elimination of the section what would be left is
the bare idealism of the system, devoid of any practical benefit to a
large number of people who may be deserving of the intended
beneficial results of that system. The clear policy of the law, as may
be gleaned from a careful examination of the whole context, is to
make the application of the system dependent entirely upon the
affirmative action of the different provincial boards through
appropriation of the salaries for probation officers at rates not lower
than those provided for provincial fiscals. Without such action on the
part of the various boards, no probation officers would be appointed by
the Secretary of Justice to act in the provinces. The Philippines is
divided or subdivided into provinces and it needs no argument to show
that if not one of the provinces — and this is the actual situation how
— appropriates the necessary fund for the salary of a probation officer,
probation under Act No. 4221 would be illusory. There can be no
probation without a probation officer. Neither can there be a probation
officer without a probation system.
Section 2 of the Act provides that the probation officer shall
supervise and visit the probationer. Every probation officer is given, as
to the persons placed in probation under his care, the powers of a
police officer. It is the duty of probation officers to see that the
conditions which are imposed by the court upon the probationer under
his care are complied with. Among those conditions, the following are
enumerated in section 3 of the Act:
"That the probationer (a) shall indulge in no injurious or
vicious habits;
"(b) Shall avoid places or persons of disreputable or harmful
character;
"(c) Shall report to the probation officer as directed by the
court or probation officers;
"(d) Shall permit the probation officer to visit him at
reasonable times at his place of abode or elsewhere;
"(e) Shall truthfully answer any reasonable inquiries on the
part of the probation officer concerning his conduct or condition;
"(f) Shall endeavor to be employed regularly;
"(g) Shall remain or reside within a specified place or locality;
"(h) Shall make reparation or restitution to the aggrieved
parties for actual damages or losses caused by his offense;
"(i) Shall support his wife and children;
 "(j) Shall comply with such orders as the court may from time
to time make; and
"(k) Shall refrain from violating any law, statute, ordinance, or
any by-law or regulation, promulgated in accordance with law."
The court is required to notify the probation officer in writing of
the period and terms of probation. Under section 4, it is only after the
period of probation, the submission of a report of the probation officer
and appropriate finding of the court that the probationer has complied
with the conditions of probation that probation may be definitely
terminated and the probationer finally discharged from supervision.
Under section 5, if the court finds that there is non-compliance with
said conditions, as reported by the probation officer, it may issue a
warrant for the arrest of the probationer and said probationer may be
committed with or without bail. Upon arraignment and after an
opportunity to be heard, the court may revoke, continue or modify the
probation, and if revoked, the court shall order the execution of the
sentence originally imposed. Section 6 prescribes the duties of
probation officers: "It shall be the duty of every probation officer to
furnish to all persons placed on probation under his supervision a
statement of the period and conditions of their probation, and to
instruct them concerning the same; to keep informed concerning their
conduct and condition; to aid and encourage them by friendly advice
and admonition, and by such other measures, not inconsistent with the
conditions imposed by the court as may seem most suitable, to bring
about improvement in their conduct and condition; to report in writing
to the court having jurisdiction over said probationers at least once
every two months concerning their conduct and condition; to keep
records of their work; to make such reports as are necessary for the
information of the Secretary of Justice and as the latter may require;
and to perform such other duties as are consistent with the functions
of the probation officer and as the court or judge may direct. The
probation officers provided for in this Act may act as parole officers
for any penal or reformatory institution for adults when so requested
by the authorities thereof, and, when designated by the Secretary of
Justice, shall act as parole officer of persons released on parole under
Act Numbered Forty-one Hundred and Three, without any additional
compensation."
It is argued, however, that even without section 11 probation
officers may be appointed in the provinces under section 10 of the Act
which provides as follows:
"There is hereby created in the Department of Justice and
subject to its supervision and control, a Probation Office under the
direction of a Chief Probation Officer to be appointed by the
Governor-General with the advise and consent of the Senate who
 shall receive a salary of four thousand eight hundred pesos per
annum. To carry out the purposes of this Act, there is hereby
appropriated out of any funds in the Insular Treasury not otherwise
appropriated, the sum of fifty thousand pesos to be disbursed by
the Secretary of Justice, who is hereby authorized to appoint
probation officers and the administrative personnel of the
probation office under civil service regulations from among those
who possess the qualifications, training and experience prescribed
by the Bureau of Civil Service, and shall fix the compensation of
such probation officers and administrative personnel until such
positions shall have been included in the Appropriation Act."
But the probation officers and the administrative personnel
referred to in the foregoing section are clearly not those probation
officers required to be appointed for the provinces under section 11. It
may be said, reddendo singula singulis, that the probation officers
referred to in section 10 above-quoted are to act as such, not in the
various provinces, but in the central office known as the Probation
Office established in the Department of Justice, under the supervision
of a Chief Probation Officer. When the law provides that "the probation
officer" shall investigated and make reports to the court (secs. 1 and
4); that "the probation officer" shall supervise and visit the
probationer (sec. 2; sec. 6, par. d); that the probationer shall report to
the "probation officer" (sec. 3, par. c.), shall allow "the probation
officer" to visit him (sec. 3, par. d), shall truthfully answer any
reasonable inquiries on the part of "the probation officer" concerning
his conduct or condition (sec. 3, par. 4); that the court shall notify "the
probation officer" in writing of the period and terms of probation (sec.
3, last par.), it means the probation officer who is in charge of a
particular probationer in a particular province. It never could have
been the intention of the legislature, for instance, to require a
probationer in Batanes, to report to a probation officer in the City of
Manila, or to require a probation officer in Manila to visit the
probationer in the said province of Batanes, to place him under his
care, to supervise his conduct, to instruct him concerning the
conditions of his probation or to perform such other functions as are
assigned to him by law.
That under section 10 the Secretary of Justice may appoint as
many probation officers as there are provinces or groups of provinces
is, of course, possible. But this would be arguing on what the law may
be or should be and not on what the law is. Between is and ought there
is a far cry. The wisdom and propriety of legislation is not for us to
pass upon. We may think a law better otherwise than it is. But much as
has been said regarding progressive interpretation and judicial
legislation we decline to amend the law. We are not permitted to read
into the law matters and provisions which are not there. Not for any
purpose — not even to save a statute from the doom of invalidity.
Upon the other hand, the clear intention and policy of the law is
not to make the Insular Government defray the salaries of probation
officers in the provinces but to make the provinces defray them should
they desire to have the Probation Act apply thereto. The sum of
P50,000, appropriated "to carry out the purposes of this Act", is to be
applied, among other things, for the salaries of probation officers in
the central office at Manila. These probation officers are to receive
such compensations as the Secretary of Justice may fix "until such
positions shall have been included in the Appropriation Act". It was not
the intention of the legislature to empower the Secretary of Justice to
fix the salaries of probation officers in the provinces or later on to
include said salaries in an appropriation act. Considering, further, that
the sum of P50,000 appropriated in section 10 is to cover, among other
things, the salaries of the administrative personnel of the Probation
Office, what would be left of the amount can hardly be said to be
sufficient to pay even nominal salaries to probation officers in the
provinces. We take judicial notice of the fact that there are 48
provinces in the Philippines and we do not think it is seriously
contended that, with the fifty thousand pesos appropriated for the
central office, there can be in each province, as intended, a probation
officer with a salary not lower than that of a provincial fiscal. If this is
correct, the contention that without section 11 of Act No. 4221 said
act is complete is an impracticable thing under the remainder of the
Act, unless it is conceded that in our case there can be a system of
probation in the provinces without probation officers.
Probation as a development of modern penology is a
commendable system. Probation laws have been enacted, here and in
other countries, to permit what modern criminologists call the
"individualization of punishment", the adjustment of the penalty to the
character of the criminal and the circumstances of his particular case.
It provides a period of grace in order to aid in the rehabilitation of a
penitent offender. It is believed that, in any cases, convicts may be
reformed and their development into hardened criminals aborted. It,
therefore, takes advantage of an opportunity for reformation and
avoids imprisonment so long as the convict gives promise of reform.
(United States vs. Murray [1925], 275 U. S., 347, 357, 358; 72 Law. ed.,
309; 312, 313; 48 Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F. [2d], 664,
665.) The welfare of society is its chief end and aim. The benefit to the
individual convict is merely incidental. But while we believe that
probation is commendable as a system and its implantation into the
Philippines should be welcomed, we are forced by our inescapable
 duty to set the law aside because of repugnancy to our fundamental
law.
In arriving at this conclusion, we have endeavored to consider
the different aspects presented by able counsel for both parties, as
well in their memorandums as in their oral argument. We have
examined the cases brought to our attention, and others we have been
able to reach in the short time at our command for the study and
deliberation of this case. In the examination of the cases and in the
analysis of the legal principles involved we have inclined to adopt the
line of action which in our opinion, is supported by better reasoned
authorities and is more conducive to the general welfare. (Smith, Bell
& Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the conflict of
authorities, we have declined to be bound by certain adjudicated
cases brought to our attention, except where the point or the principle
is settled directly or by clear implication by the more authoritative
pronouncements of the Supreme Court of the United States. This line
of approach is justified because:
(a) The constitutional relations between the Federal and the
State governments of the United States and the dual character of the
American Government is a situation which does not obtain in the
Philippines;
(b) The situation of a state of the American Union or of the
District of Columbia with reference to the Federal Government of the.
United States is not the situation of a province with respect to the
Insular Government (Art. I, sec. 8, cl. 17, and 10th Amendment,
Constitution of the United States; Sims vs. Rives, 84 Fed. [2d], 871);
(c) The distinct federal and state judicial organizations of the
United States do not embrace the integrated judicial system of the
Philippines (Schneckenburger vs. Moran [1936], 35 Off. Gaz., p. 1317);
(d) "General propositions do not decide concrete cases" (Justice
Holmes in Lochner vs. New York [1904], 198 U. S., 45, 76; 49 Law. ed.,
937, 949) and, "to keep pace with . . . new developments of times and
circumstances" (Chief Justice Waite in Pensacola Tel. Co. vs. Western
Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale Law Journal,
Vol. XXIX, No. 2, Dec. 1919, 141, 142), fundamental principles should be
interpreted having in view existing local conditions and environments.
Act No. 4221 is hereby declared unconstitutional and void and the
writ of prohibition is, accordingly, granted. Without any
pronouncement regarding costs. So ordered.
Avanceña, C. J., Imperial, Diaz and Concepcion, JJ., concur.
||| (People v. Vera, G.R. No. 45685, [November 16, 1937])
 [G.R. No. L-29646. November 10, 1978.]

MAYOR ANTONIO J. VILLEGAS, petitioner, vs. HIU CHIONG

TSAI PAO HO and JUDGE FRANCISCO ARCA, respondents.

Angel C . Cruz, Gregorio A. Ejercito, Felix C . Chaves & Jose

Laureta for petitioner.
Sotero H . Laurel for respondents.

DECISION

FERNANDEZ, J : p

This is a petition for certiorari to review the decision dated

September 17, 1968 of respondent Judge Francisco Arca of the Court
of First Instance of Manila, Branch I, in Civil Case No. 72797, the
dispositive portion of which reads:
"Wherefore, judgment is hereby rendered in favor of the
petitioner and against the respondents, declaring Ordinance No.
6537 of the City of Manila null and void. The preliminary injunction
is hereby made permanent. No pronouncement as to cost.
SO ORDERED.
Manila, Philippines, September 17, 1968.
(SGD.) FRANCISCO ARCA
Judge" 1

The controverted Ordinance No. 6537 was passed by the

Municipal Board of Manila on February 22, 1968 and signed by the
herein petitioner Mayor Antonio J. Villegas of Manila on March 27,
1968. 2
City Ordinance No. 6537 is entitled:
"AN ORDINANCE MAKING IT UNLAWFUL FOR ANY PERSON
NOT A CITIZEN OF THE PHILIPPINES TO BE EMPLOYED IN ANY
PLACE OF EMPLOYMENT OR TO BE ENGAGED IN ANY KIND OF
TRADE, BUSINESS OR OCCUPATION WITHIN THE CITY OF MANILA
WITHOUT FIRST SECURING AN EMPLOYMENT PERMIT FROM THE
MAYOR OF MANILA; AND FOR OTHER PURPOSES." 3

Section 1 of said Ordinance No. 6537 4 prohibits aliens from being

employed or to engage or participate in any position or occupation or
business enumerated therein, whether permanent, temporary or
casual, without first securing an employment permit from the Mayor of
Manila and paying the permit fee of P50.00 except persons employed
in the diplomatic or consular missions of foreign countries, or in the
technical assistance programs of both the Philippine Government and
any foreign government, and those working in their respective
households, and members of religious orders or congregations, sect or
denomination, who are not paid monetarily or in kind. cdrep

Violations of this ordinance is punishable by an imprisonment of

not less than three (3) months to six (6) months or fine of not less than
P100.00 but not more than P200.00 or both such fine and
imprisonment, upon conviction. 5
On May 4, 1968, private respondent Hiu Chiong Tsai Pao Ho, who
was employed in Manila, filed a petition with the Court of First
Instance of Manila, Branch I, denominated as Civil Case No. 72797,
praying for the issuance of the writ of preliminary injunction and
restraining order to stop the enforcement of Ordinance No. 6637 as
well as for a judgment declaring said Ordinance No. 6537 null and void.
6
In this petition, Hiu Chiong Tsai Pao Ho assigned the following as
his grounds for wanting the ordinance declared null and void:
1) As a revenue measure imposed on aliens employed in the
City of Manila, Ordinance No. 6537 is discriminatory and violative
of the rule of the uniformity in taxation;
2) As a police power measure, it makes no distinction
between useful and non-useful occupations, imposing a fixed
P50.00 employment permit, which is out of proportion to the cost
of registration and that it fails to prescribe' any standard to guide
and/or limit the action of the Mayor, thus, violating the fundamental
principle on illegal delegation of legislative powers:
3) It is arbitrary, oppressive and unreasonable, being applied
only to aliens who are thus, deprived of their rights to life, liberty
and property and therefore, violates the due process and equal
protection clauses of the Constitution. 7

On May 24, 1968, respondent Judge issued the writ of preliminary

injunction and on September 17, 1968 rendered judgment declaring
Ordinance No. 6537 null and void and making permanent the writ of
preliminary injunction.8
Contesting the aforecited decision of respondent Judge, then
Mayor Antonio J. Villegas filed the present petition on March 27, 1969.
Petitioner assigned the following as errors allegedly committed by
respondent Judge in the latter's decision of September 17, 1968: 9
 "I.
THE RESPONDENT JUDGE COMMITTED A SERIOUS AND
PATENT ERROR OF LAW IN RULING THAT ORDINANCE NO. 6537
VIOLATED THE CARDINAL RULE OF UNIFORMITY OF TAXATION.
II.
RESPONDENT JUDGE LIKEWISE COMMITTED A GRAVE AND
PATENT ERROR OF LAW IN RULING THAT ORDINANCE NO. 6537
VIOLATED THE PRINCIPLE AGAINST UNDUE DESIGNATION OF
LEGISLATIVE POWER.
III.
RESPONDENT JUDGE FURTHER COMMITTED A SERIOUS AND
PATENT ERROR OF LAW IN RULING THAT ORDINANCE NO. 6537
VIOLATED THE DUE PROCESS AND EQUAL PROTECTION CLAUSES
OF THE CONSTITUTION."
Petitioner Mayor Villegas argues that Ordinance No. 6537 cannot
be declared null and void on the ground that it violated the rule on
uniformity of taxation because the rule on uniformity of taxation
applies only to purely tax or revenue measures and that Ordinance No.
6537 is not a tax or revenue measure but is an exercise of the police
power of the state, it being principally a regulatory measure in
nature.cdll

The contention that Ordinance No. 6537 is not a purely tax or

revenue measure because its principal purpose is regulatory in nature
has no merit. While it is true that the first part which requires that the
alien shall secure an employment permit from the Mayor involves the
exercise of discretion and judgment in the processing and approval or
disapproval of applications for employment permits and therefore is
regulatory in character the second part which requires the payment of
P50.00 as employee's fee is not regulatory but a revenue measure.
There is no logic or justification in exacting P50.00 from aliens who
have been cleared for employment. It is obvious that the purpose of
the ordinance is to raise money under the guise of regulation.
The P50.00 fee is unreasonable not only because it is excessive
but because it fails to consider valid substantial differences in
situation among individual aliens who are required to pay it. Although
the equal protection clause of the Constitution does not forbid
classification, it is imperative that the classification, should be based
on real and substantial differences having a reasonable relation to the
subject of the particular legislation. The same amount of P50.00 is
being collected from every employed alien, whether he is casual or
permanent, part time or full time or whether he is a lowly employee or
a highly paid executive.
 Ordinance No. 6537 does not lay down any criterion or standard
to guide the Mayor in the exercise of his discretion. It has been held
that where an ordinance of a municipality fails to state any policy or to
set up any standard to guide or limit the mayor's action, expresses no
purpose to be attained by requiring a permit, enumerates no
conditions for its grant or refusal, and entirely lacks standard, thus
conferring upon the Mayor arbitrary and unrestricted power to grant or
deny the issuance of building permits, such ordinance is invalid, being
an undefined and unlimited delegation of power to allow or prevent an
activity per se lawful. 10
In Chinese Flour Importers Association vs. Price Stabilization
Board, 11 where a law granted a government agency power to
determine the allocation of wheat flour among importers, the Supreme
Court ruled against the interpretation of uncontrolled power as it
vested in the administrative officer an arbitrary discretion to be
exercised without a policy, rule, or standard from which it can be
measured or controlled.
It was also held in Primicias vs. Fugoso 12 that the authority and
discretion to grant and refuse permits of all classes conferred upon
the Mayor of Manila by the Revised Charter of Manila is not
uncontrolled discretion but legal discretion to be exercised within the
limits of the law.
Ordinance No. 6537 is void because it does not contain or
suggest any standard or criterion to guide the mayor in the exercise of
the power which has been granted to him by the ordinance.
The ordinance in question violates the due process of law and
equal protection rule of the Constitution.
Requiring a person before he can be employed to get a permit
from the City Mayor of Manila who may withhold or refuse it at will is
tantamount to denying him the basic right of the people in the
Philippines to engage in a means of livelihood. While it is true that the
Philippines as a State is not obliged to admit aliens within its territory,
once an alien is admitted, he cannot be deprived of life without due
process of law. This guarantee includes the means of livelihood. The
shelter of protection under the due process and equal protection
clause is given to all persons, both aliens and citizens. 13
The trial court did not commit the errors assigned. LLpr

WHEREFORE, the decision appealed from is hereby affirmed,

without pronouncement as to costs.
SO ORDERED.
 (Villegas v. Hiu Chiong Tsai Pao Ho, G.R. No. L-29646, [November 10,
|||

1978], 175 PHIL 443-451)

 [G.R. No. 45987. May 5, 1939.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

CAYAT, defendant-appellant.

Sinai Hamada y Cariño for appellant.

Solicitor-General Tuason for appellee.

SYLLABUS

1. CONSTITUTIONAL LAW; GUARANTY OF EQUAL PROTECTION

OF THE LAWS; LEGISLATION BASED ON REASONABLE
CLASSIFICATION. — It is an established principle of constitutional law
that the guaranty of the equal protection of the laws is not violated by
a legislation based on reasonable classification. And the
classification, to be reasonable, (1) must rest on substantial
distinctions; (2) must be germane to the purposes of the law; (3) must
not be limited to existing conditions only; and (4) must apply equally to
all members of the same class.
2. ID.; ID.; ID.; NON-CHRISTIAN TRIBES. — Act No. 1639 satisfies
these requirements. The classification rests on real or substantial, not
merely imaginary or whimsical, distinctions. It is not based upon
"accident of birth or parentage!' but upon the degree of civilization and
culture. The term "non-Christian tribes" refers, ,not to religious belief,
but, in a way, to the geographical area, and, more directly, to natives
of the Philippines of a low grade of civilization, usually living in tribal
relationship apart from settled communities.
3. ID.; ID.; ID; ID. — This distinction is unquestionably reasonable,
for the Act was intended to meet the peculiar conditions existing in
the non-Christian tribes. The exceptional cases of certain members
thereof who at present have reached a position of cultural equality
with their Christian brothers, cannot affect the reasonableness of the
classification thus established.
4. ID.; ID.; ID.; ID. — That the classification is germane to the
purposes of law cannot be doubted. The prohibition "to buy, receive,
have in his possession, or drink any ardent spirits, ale, beer, wine, or
intoxicating liquors of any kind, other than the so-called native wines
and liquors which the members of such tribes have been accustomed
themselves to make prior to the passage of this Act," is
unquestionably designed to insure peace and order in and among the
non-Christian tribes. It has been the and experience of the past, as the
observations of the lower court disclose, that the free use of highly
intoxicating liquors the non-Christian tribes have often resulted in
lawlessness and crimes, thereby hampering the efforts of the
government to raise their standard of life and civilization.
5. ID.; ID.; ID.; ID. — The law is not limited in its application to
conditions existing at the time of its enactment. It is intended to apply
for all times as long as those conditions exist. The act was not
predicated upon the assumption that the non-Christians are
"impermeable to any civilizing influence." On the contrary, the
Legislature understood that the civilization of a people is a slow
process and that hand in hand with it must go measures of protection
and security.
6. ID.; ID.; ID.; ID. — That the Act applies equally to all members of
the class is evident from a perusal thereof. That it may be unfair in its
operation against a certain number of non-Christians by reason of their
degree of culture, is not an argument against the equality of its
application.
7. ID.; ID.; ID.; ID.; DUE PROCESS OF LAW. — To constitute due
process of law, notice and hearing are not always necessary. This rule
is especially true where much must be left to the discretion of the
administrative officials in applying a law to particular cases. Due
process of law means simply: (1) that there shall be a law prescribed
in harmony with the general powers of the legislative department of
the government; (2) that it shall be reasonable in its operation; (3) that
it shall be enforced according to the regular methods of procedure
prescribed; and (4) that it shall be applicable alike to 811 citizens of
the state or to all of a class.
8. ID.; ID.; ID.; ID.; POLICE POWER OF THE STATE. — Neither is the
Act an improper exercise of the police power of the state. It has been
said that the police power is the most insistent and least limitable of
all the powers of the government. It has been aptly described as a
power coextensive with self-protection and constitutes the law of
overruling necessity. Any measure intended to promote the health,
peace, morals, education and good order of the people or to increase
the industries of the state, develop its resources and add to its wealth
and prosperity, is a legitimate exercise of the police power, and unless
shown to be whimsical or capricious as to unduly interfere with the
rights of an individual, the same must be upheld.
9. ID.; ID.; ID.; ID.; ID. — Act No. 1639 is designed to promote
peace and order in the non-Christian tribes so as to remove all
obstacles to their moral and intellectual growth and, eventually, to
hasten their equalization and unification with the rest of their
 Christian brothers. Its ultimate purpose can be no other than to unify
the Filipino people with a view to a greater Philippines. The law, then,
does not seek to mark the non-Christian tribes as "an inferior or less
capable race." On the contrary, all measures thus far adopted in the
promotion of the public policy towards them rest upon a recognition of
their inherent right to equality in the enjoyment of those privileges
now enjoyed by their Christian brothers. But as there can be no true
equality before the law, if there is, in fact, no equality in education, the
government has endeavored, by appropriate measures, to raise their
culture and civilization and secure for them the benefits of their
progress, with the ultimate end in view of placing them with their
Christian brothers on the basis of true equality.
10. ID; ID.; ID.; ID; ID.; PRINCIPLE OF "SALUS POPULI SUPREMA
EST LEX". — In the constitutional scheme of our government, this
court can go no farther than to inquire whether the Legislature had the
power to enact the law. If the power exists, and we bold it does exist,
the wisdom of the policy adopted, and the adequacy under existing
conditions of the measures enacted to forward it, are matters which
this court has no authority to pass upon. And, if in the application of
the law, the educated non-Christians shall incidentally suffer, the
justification still exists in the all-comprehending principle of salus
populi suprema est lex.
11. ID.; ID.; ID.; ID.; ID.; ID.; PUBLIC AND PRIVATE INTERESTS. —
When the public safety or the public morals require the discontinuance
of a certain practice by a certain class of persons, the hand of the
Legislature cannot be stayed from providing for its discontinuance by
any incidental inconvenience which some members of the class may
suffer. The private interests of such members must yield to the
paramount interests of the nation (Of, Boston Beer Co. V8. Mass., 97 U.
S., 26; 24 Law. ed., 989).

DECISION

MORAN, J : p

Prosecuted for violation of Act No. 1639 (secs. 2 and 3), the
accused, Cayat, a native of Baguio, Benguet, Mountain Province, was
sentenced by the justice of the peace court of Baguio to pay a fine of
five pesos (P5) or suffer subsidiary imprisonment in case of
insolvency. On appeal to the Court of First Instance, the following
information was filed against him:
 "That on or about the 25th day of January, 1937, in the City of
Baguio, Commonwealth of the Philippines, and within the
jurisdiction of this court, the above-named accused, Cayat, being a
member of the non-Christian tribes, did then and there willfully,
unlawfully, and illegally receive, acquire, and have in his
possession and under his control or custody, one bottle of A-1-1
gin, an intoxicating liquor, other than the so-called native wines
and liquors which the members of such tribes have been
accustomed themselves to make prior to the passage of Act No.
1639."
Accused interposed a demurrer which was overruled. At the trial,
he admitted all the facts alleged in the information, but pleaded not
guilty to the charge for the reasons adduced in his demurrer and
submitted the case on the pleadings. The trial court found him guilty
of the crime charged and sentenced him to pay a fine of fifty pesos
(P50) or suffer subsidiary imprisonment in case of insolvency. The
case is now before this court on appeal. Sections 2 and 3 of Act No.
1639 read:
"SEC. 2. It shall be unlawful for any native of the Philippine
Islands who is a member of a non-Christian tribe within the
meaning of Act Numbered Thirteen hundred and ninety-seven, to
buy, receive, have in his possession, or drink any ardent spirits,
ale, beer, wine, or intoxicating liquors of any kind, other than the
so-called native wines and liquors which the members of such
tribes have been accustomed themselves to make prior to the
passage of this Act, except as provided in section one hereof; and
it shall be the duty of any police officer or other duly authorized
agent of the Insular or any provincial, municipal or township
government to seize and forthwith destroy any such liquors found
unlawfully in the possession of any member of a non-Christian
tribe.
"SEC. 3. Any person violating the provisions of section one or
section two of this Act shall, upon conviction thereon, be
punishable for each offense by a fine of not exceeding two hundred
pesos or by imprisonment for a term not exceeding six months, in
the discretion of the court."
The accused challenges the constitutionality of the Act on the
following grounds:
(1) That it is discriminatory and denies the equal protection of
the laws;
(2) That it is violative of the due process clause of the
Constitution; and
(3) That it is an improper exercise of the police power of the
state.
 Counsel for the appellant holds out his brief as the "brief for the
non-Christian tribes." It is said that as these less civilized elements of
the Filipino population are "jealous of their rights in a democracy," any
attempt to treat them with discrimination or "mark them as inferior or
less capable race and less entitled" will meet with their instant
challenge. May the constitutionality of the Act here involved is
questioned for purposes thus mentioned, it becomes imperative to
examine and resolve the issues raised in the light of the policy of the
government towards the non-Christian tribes adopted and consistently
followed from the Spanish times to the present, more often with
sacrifice and tribulation but always with conscience and humanity.
As early as 1551, the Spanish Government had assumed an
unvarying solicitous attitude towards these inhabitants, and in the
different laws of the Indies, their concentration in so-called
"reducciones" (communities) had been persistently attempted with
the end in view of according them the "spiritual and temporal
benefits" of civilized life. Throughout the Spanish regime, it had been
regarded by the Spanish Government as a sacred "duty to conscience
and humanity" to civilize these less fortunate people living "in the
obscurity of ignorance" and to accord them the "moral and material
advantages" of community life and the ' protection and vigilance
afforded them by the same laws." (Decree of the Governor General of
the Philippines, Jan. 14,1887.) This policy had not been deflected from
during the American period. President McKinley in his instructions to
the Philippine Commission of April 7, 1900, said:
"In dealing with the uncivilized tribes of the Islands, the
Commission should adopt the same course followed by Congress in
permitting the tribes of our North American Indians to maintain
their tribal organization and government, and under which many of
those tribes are now living in, peace and contentment, surrounded
by civilization to which they are unable or unwilling to conform.
Such tribal government should, however, be subjected to wise and
firm regulation; and, without undue or petty interference, constant
and active effort should be exercised to prevent barbarous
practices and introduce civilized customs."
Since then and up to the present, the government has been
constantly vexed with the problem of determining ' those practicable
means of bringing about their advancement in civilization and material
prosperity." (See, Act No. 253.) "Placed in an alternative of either
letting them alone or guiding them in the path of civilization," the
present government "has chosen to adopt the latter measure as one
more in accord with humanity and with the national conscience."
(Memorandum of Secretary of the Interior, quoted in Rubi vs. Provincial
Board of Mindoro, 39 Phil., 660, 714.) To this end, their homes and
firesides have been brought in contact with civilized communities
through a network of highways and communications; the benefits of
public education have to them been extended; and more lately, even
the right of suffrage. And to complement this policy of attraction and
assimilation, the Legislature has passed Act No. 1639 undoubtedly to
secure for them the blessings of peace and harmony; to facilitate, and
not to mar, their rapid and steady march to civilization and culture. It
is, therefore, in this light that the Act must be understood and applied.
It is an established principle of constitutional law that the
guaranty of the equal protection of the laws is not violated by a
legislation based on reasonable classification. And the classification,
to be reasonable, (1) must rest on substantial distinctions; (2) must be
germane to the purposes of the law; (3) must not be limited to existing
conditions only; and (4) must apply equally to all members of the same
class. (Borgnis vs. Falk Co., 133 N. W., 209; Lindsley vs. Natural
Carbonic Gas Co., 220 U. S., 61; 55 Law. ed., 369; Rubi vs. Provincial
Board of Mindoro, 39 Phil., 660; People and Hongkong & Shanghai
Banking Corporation vs. Vera and Cu Unjieng, 37 Off. Gaz., 187.)
Act No. 1639 satisfies these requirements. The classification
rests on real or substantial, not merely imaginary or whimsical,
distinctions. It is not based upon "accident of birth or parentage," as
counsel for the appellant asserts, but upon the degree of civilization
and culture. "The term 'non-Christian tribes' refers, not to religious
belief, but, in a way, to the geographical area, and, more directly, to
natives of the Philippine Islands of a low grade of civilization, usually
living in tribal relationship apart from settled communities." (Rubi vs.
Provincial Board of Mindoro, supra.) This distinction is unquestionably
reasonable, for the Act was intended to meet the peculiar conditions
existing in the non-Christian tribes. The exceptional cases of certain
members thereof who at present have reached a position of cultural
equality with their Christian brothers, cannot affect the
reasonableness of the classification thus established.
That it is germane to the purposes of law cannot be doubted. The
prohibition "to buy, receive, have in his possession, or drink any ardent
spirits, ale, beer, wine, or intoxicating liquors of any kind, other than
the so-called native wines and liquors which the members of such
tribes have been accustomed themselves to make prior to the passage
of this Act," is unquestionably designed to insure peace and order in
and among the non-Christian tribes. It has been the sad experience of
the past, as the observations of the lower court disclose, that the free
use of highly intoxicating liquors by the non-Christian tribes have often
resulted in lawlessness and crimes, thereby hampering the efforts of
the government to raise their standard of life and civilization.
 The law is not limited in its application to conditions existing at
the time of its enactment. It is intended to apply for all times as long
as those conditions exist. The Act was not predicated, as counsel for
appellant asserts, upon the assumption that the non-Christians are
"impermeable to any civilizing influence." On the contrary, the
Legislature understood that the civilization of a people is a slow
process and that hand in hand with it must go measures of protection
and security.
Finally, that the Act applies equally to all members of the class is
evident from a perusal thereof. That it may be unfair in its operation
against a certain number of non-Christians by reason of their degree of
culture, is not an argument against the equality of its application.
Appellant contends that that provision of the law empowering any
police officer or other duly authorized agent of the government to
seize and forthwith destroy any prohibited liquors found unlawfully in
the possession of any member of the non-Christian tribes is violative
of the due process of law provided in the Constitution. But this
provision is not involved in the case at bar. Besides, to constitute due
process of law, notice and hearing are not always necessary. This rule
is especially true where much must be left to the discretion of the
administrative officials in applying a law to particular cases.
(McGehee, Due Process of Law, p. 371, cited with approval in Rubi vs.
Provincial Board of Mindoro, supra.) Due process of law means simply:
(1) that there shall be a law prescribed in harmony with the general
powers of the legislative department of the government; (2) that it
shall be reasonable in its operation; (3) that it shall be enforced
according to the regular methods of procedure prescribed; and (4) that
it shall be applicable alike to all citizens of the state or to all of a
class. (U. S. vs. Ling Su Fan, 10 Phil., 104, affirmed on appeal by the
United States Supreme Court, 218 U. S., 302; 54 Law. ed., 1049.) Thus a
person's property may be seized by the government in payment of
taxes without judicial hearing; or property used in violation of law may
be confiscated (U. S. vs. Surla, 20 Phil., 163, 167), or when the Property
constitutes corpus delicti, as in the instant case (Moreno vs. Ago Chi,
12 Phil., 439, 442).
Neither is the Act an improper exercise of the police power of the
state. It has been said that the police power is the most insistent and
least limitable of all the powers of the government. It has been aptly
described as a power coextensive with self-protection and constitutes
the law of overruling necessity. Any measure intended to promote, the
health, peace, morals, education and good order of the people or to
increase the industries of the state, develop its resources and add to
its wealth and prosperity (Barbier vs. Connolly, 113 U. S., 27), is a
legitimate exercise of the police power, and unless shown to be
whimsical or capricious as to unduly interfere with the rights of an
individual, the same must be upheld.
Act No. 1639, as above stated, is designed to promote peace and
order in the non-Christian tribes so as to remove all obstacles to their
moral and intellectual growth and, eventually, to hasten their
equalization and unification with the rest of their Christian brothers.
Its ultimate purpose can be no other than to unify the Filipino people
with a view to a greater Philippines.
The law, then, does not seek to mark the non-Christian tribes as
"an inferior or less capable race." On the contrary, all measures thus
far adopted in the promotion of the public policy towards them rest
upon a recognition of their inherent right to equality in the enjoyment
of those privileges now enjoyed by their Christian brothers. But as
there can be no true equality before the law, if there is, in fact, no
equality in education, the government has endeavored, by appropriate
measures, to raise their culture and civilization and secure for them
the benefits of their progress, with the ultimate end in view of placing
them with their Christian brothers on the basis of true equality. It is
indeed gratifying that the non-Christian tribes "far from retrograding,
are definitely asserting themselves in a competition world," as
appellant's attorney impressively avers, and that they are "a virile, up-
and-coming people eager to take their place in the world's social
scheme." As a matter of fact, there are now lawyers, doctors and other
professionals educated in the best institutions here and in America.
Their active participation in the multifarious welfare activities of
community life or in the delicate duties of government is certainly a
source of pride and gratification to people of the Philippines. But
whether conditions have so changed as to warrant a partial or
complete abrogation of the law, is a matter which rests exclusively
within the prerogative of the National Assembly to determine. In the
constitutional scheme of our government, this court can go no farther
than to inquire whether the Legislature had the power to enact the
law. If the power exists, and we hold it does exist, the wisdom of the
policy adopted, and the adequacy under existing conditions of the
measures enacted to forward it, are matters which this court has no
authority to pass upon. And, if in the application of the law, the
educated non-Christians shall incidentally suffer, the justification still
exists in the all-comprehending principle of salus populi suprema est
lex. When the public safety or the public morals require the
discontinuance of a certain practice by a certain class of persons, the
hand of the Legislature cannot be stayed from providing for its
discontinuance by any incidental inconvenience which some members
of the class may suffer. The private interests of such members must
 yield to the paramount interests of the nation (Cf. Boston Beer Co. vs.
Mass., 97 U. S., 25; 24 Law. ed., 989).
Judgment is affirmed, with costs against appellant.
||| (People v. Cayat, G.R. No. 45987, [May 5, 1939], 68 PHIL 12-22)

[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.

DECISION

MELENCIO-HERRERA, J : p

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 Blg. 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. cdasia

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. XII-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 of 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." (Paragraphing and 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. Term 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. . . .
"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.
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.
 ". . . (Batas Pambansa Blg. 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 theConstitution. 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. XII(C) of
the Constitution, which provides that a "bona fide candidate for any
public office shall be free 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. (G.R. No. L-52232)
where the issue has been squarely raised. cdasia

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. They, 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 time constraints as the reason of their joint Petition,
it would have required only a modicum more of effort for petitioner
Dumlao, on one hand, and petitioners Igot 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 in the
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
constitutional 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) . . .
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 alleged to have been adversely affected by the
operation of the statutory provisions they assail as unconstitutional.
Theirs is a generalized 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. LibLex

It is true that petitioners Igot and Salapantan have instituted this

case as a taxpayer's suit, and that the rule enunciated in People vs.
Vera, above stated, has been relaxed in Pascual vs. The Secretary of
Public Works (110 Phil. 331 [1960], thus:
". . . it is well settled that the validity of a statute may be
contested only by one who will sustain a direct injury in
consequence of its enforcement. Yet, there are many decisions
nullifying, at the instance of taxpayers, laws providing for the
disbursement of public funds, upon the theory that 'the
expenditure of public funds, by an officer of the State for the
purpose of administering an unconstitutional act constitutes a
misapplication of such funds,' which may be enjoined at the
request of a taxpayer."
In the same vein, it has been held:
"In the determination of the degree of interest essential to
give the requisite standing to attack the constitutionality of a
statute, the general rule is that not only persons individually
affected, but also taxpayers have sufficient interest in preventing
the illegal expenditure of moneys raised by taxation and they may,
therefore, question the constitutionality of statutes requiring
expenditure of public moneys."
(Philippine Constitution Association, Inc., et als., vs. Gimenez, et
als. 15 SCRA 479 [1965]).
However, the statutory provisions questioned in this case,
namely, sec. 7, BP Blg. 51, and sections 4, 1, and 6 BP Blg. 52, do not
directly involve the disbursement of public funds. While, concededly,
the elections to be held involve the expenditure of public moneys,
nowhere in their Petition do said petitioners allege that their tax
money is "being extracted and spent in violation of specific
constitutional protections against abuses of legislative power" (Flast
v. Cohen, 392 U.S., 83 [1960]), or that there is a misapplication of such
funds by respondent COMELEC (see Pascual vs. Secretary of Public
Works, 110 Phil. 331 [1960]), or that public money is being deflected to
any improper purpose. Neither do petitioners seek to restrain
respondent from wasting public funds through the enforcement of an
invalid or unconstitutional law. (Philippine Constitution Association vs.
Mathay, 18 SCRA 300 [1966]), citing
Philippine Constitution Association vs. Gimenez, 15 SCRA 479 [1965]).
Besides, the institution of a taxpayer's suit, per se, is no assurance of
judicial review. As held by this Court in Tan vs. Macapagal (43 SCRA
677 [1972]), speaking through our present Chief Justice, this Court is
vested with discretion as to whether or not a taxpayer's suit should be
entertained.
C. Unavoidability of constitutional question.
Again upon the authority of People vs. Vera, "it is a well-settled
ruled that the constitutionality of an act of the legislature will not be
determined by the courts unless that question is properly raised an
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 his 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 Gonzales 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. LexLib

The assertion that Section 4 of BP Blg. 52 is contrary to the

safeguard 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 should 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 an unavailable for
the same government work, but, which, by virtue of a change of mind,
he would like to assume again. It is for the 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 such denial (see People vs. Vera, 65 Phil. 56 [1933]). Persons
similarly situated are similarly 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 is germane to the purpose
of the law and applies to all those 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 if at
times, it may be susceptible to the objection that it is marred by
theoretical inconsistencies: (Chief Justice Fernando,
The Constitution of the Philippines, 1977 ed., p. 547).
There is an additional consideration. Absent herein is a showing
of the clear invalidity of the questioned provision. Well accepted is the
rule that to justify the nullification of a law, there must be a clear and
unequivocal breach of the Constitution, not a doubtful and equivocal
breach. Courts are practically unanimous in the pronouncement that
laws shall not be declared invalid unless the conflict with
the Constitution is clear beyond reasonable doubt (Peralta vs.
COMELEC, 82 SCRA 55 [1978], citing Cooper vs. Telfair, 4 Dall. 14;
Dodd, Cases on Constitutional Law, 3rd ed. 1942, 56). Lastly, it is
within the competence of the legislature to prescribe qualifications for
one who desires to become a candidate for office provided they are
reasonable, as in this case.
In so far as the petition of Igot and Salapantan are concerned,
the second paragraph of section 4 of Batas Pambansa Blg. 52, quoted
in full earlier, and which they challenged, may be divided in two parts.
The first provides:
"a judgment of conviction for 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 attached 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 in one such clear case.Cdphil

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 from 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 disloyalty
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 the proximity of the elections, time
constraints will prevent one charged with acts of disloyalty from
offering contrary proof to overcome the prima facieevidence 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 finding 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 Blg. 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 disqualifications for any of the elective officials
enumerated in Section 1 hereof, any retired elective provincial, city
or municipal official, who has received payment of the retirement
benefits to which he is entitled under the law and who shall have
been 65 years of age at the commencement of the term of office to
which he seeks to be elected, shall not be qualified to run for the
same elective local office from which he has retired."
2) That portion of the second paragraph of section 4 of Batas
Pambansa Bilang 52 providing that ". . . the filing of charges for the
commission of such crimes before a civil court or military tribunal
 after preliminary investigation shall be prima facie evidence of such
fact", is hereby declared null and void, for being violative of the
constitutional presumption of innocence guaranteed to an accused.
SO ORDERED.
(Dumlao v. Commission on Elections, G.R. No. L-52245, [January 22,
|||

1980], 184 PHIL 369-395)

[G.R. No. 113811. October 7, 1994.]

 ISHMAEL HIMAGAN, petitioner, vs. PEOPLE OF THE
PHILIPPINES and HON. JUDGE HILARIO MAPAYO, RTC, Br. 11,
Davao City, respondents.

DECISION

KAPUNAN, J : p

Petitioner, a policeman assigned with the medical company of

the Philippine National Police Regional Headquarters at Camp
Catitigan, Davao City, was implicated in the killing of Benjamin
Machitar, Jr. and the attempted murder of Barnabe Machitar. After
the informations for murder 1 and attempted murder 2 were filed
with the Regional Trial Court, Branch 11, Davao City, on September
16, 1992, the trial court issued an Order suspending petitioner until
the termination of the case on the basis of Section 47, R.A. 6975,
otherwise known as Department of the Interior and Local
Government Act of 1990, which provides:
Sec. 47. Preventive Suspension Pending Criminal Case. —
Upon the filing of a complaint or information sufficient in form
and substance against a member of the PNP for grave felonies
where the penalty imposed by law is six (6) years and one (1)
day or more, the court shall immediately suspend the accused
from office until the case is terminated. Such case shall be
subject to continuous trial and shall be terminated within
ninety (90) days from arraignment of the accused. (Emphasis
ours).LibLex

On October 11, 1993, petitioner filed a motion to lift the order

for his suspension, 3 relying on Section 42 of P.D. 807 or the Civil
Service Decree, that his suspension should be limited to ninety
(90) days and, also, on our ruling in Deloso v.
Sandiganbayan, 4 and Layno v. Sandiganbayan. 5 In his order dated
December 14, 1993 6 respondent judge denied the motion pointing
out that under section 47 of R.A. 6975, the accused shall be
suspended from office until his case is terminated. The motion for
reconsideration of the order of denial was, likewise,
denied. 7 Hence, the petition for certiorari and mandamus to set
aside the orders of respondent Judge and to command him to lift
petitioner's preventive suspension.
We find the petition devoid of merit.
There is no question that the case of petitioner who is
charged with murder and attempted murder under the Revised
Penal Code falls squarely under Sec. 47 of RA 6975 which
specifically applies to members of the PNP. In dispute however, is
whether the provision limits the period of suspension to 90 days,
considering that while the first sentence of Sec. 47 provides that
the accused who is charged with grave felonies where the penalty
imposed is six (6) years and one (1) day shall be suspended from
office "until the case is terminated", the second sentence of the
same section mandates that the case, which shall be subject to
continuous trial, shall be terminated within 90 days from the
arraignment of the accused.
Petitioner posits that as a member of the Philippine National
Police, under Sec. 91 of RA 6975 which reads:
Sec. 91. The Civil Service Law and its implementing rules
and regulations shall apply to all personnel of the Department.
he is covered by the Civil Service Law, particularly Sec. 42 of PD
807 of the Civil Service Decree, which limits the maximum period
of suspension to ninety (90) days, thus:
Sec. 42. Lifting of Preventive Suspension Pending
Administrative Investigation. — When the administrative case
against the officer or employee under preventive suspension is
not finally decided by the disciplining authority within the
period of ninety (90) days after the date of suspension of the
respondent who is not a presidential appointee, the
respondent shall be automatically reinstated in the
service; Provided, That when the delay in the disposition of
the case is due to the fault, negligence or petition of the
respondent, the period of delay shall not be counted in
computing the period of suspension herein provided. cdll

He claims that an imposition of preventive suspension of over 90

days is contrary to the Civil Service Law and would be a violation
of his constitutional right to equal protection of laws. He further
asserts that the requirements in Sec. 47 of R.A. 6975 that "the
court shall immediately suspend the accused from office until the
case is terminated" and the succeeding sentence, "Such case
shall be subject to continuous trial and shall be terminated within
ninety (90) days from arraignment of the accused" are both
substantive and should be taken together to mean that if the case
is not terminated within 90 days, the period of preventive
suspension must be lifted because of the command that the trial
must be terminated within ninety (90) days from arraignment.
We disagree.
First. The language of the first sentence of Sec. 47 of R.A.
6975 is clear, plain and free from ambiguity. It gives no other
meaning than that the suspension from office of the member of
the PNP charged with grave offense where the penalty is six years
and one day or more shall last until the termination of the case.
The suspension cannot be lifted before the termination of the
case. The second sentence of the same Section providing that the
trial must be terminated within ninety (90) days from arraignment
does not qualify or limit the first sentence. The two can stand
independently of each other. The first refers to the period of
suspension. The second deals with the time from within which the
trial should be finished.
Suppose the trial is not terminated within ninety days from
arraignment, should the suspension of accused be lifted? The
answer is certainly no. While the law uses the mandatory word
"shall" before the phrase "be terminated within ninety (90) days",
there is nothing in R.A. 6975 that suggests that the preventive
suspension of the accused will be lifted if the trial is not
terminated within that period. Nonetheless, the Judge who fails to
decide the case within the period without justifiable reason may
be subject to administrative sanctions and, in appropriate cases
where the facts so warrant, to criminal 8 or civil liability. 9 If the
trial is unreasonably delayed without fault of the accused such
that he is deprived of his right to a speedy trial, he is not without a
remedy. He may ask for the dismissal of the case. Should the court
refuse to dismiss the case, the accused can compel its dismissal
by certiorari, prohibition or mandamus, or secure his liberty
by habeas corpus. 10
Second. Petitioner misapplies Sec. 42 of PD 807. A meticulous
reading of the section clearly shows that it refers to the lifting of
preventive suspension in pending administrative investigation, not
in criminal cases, as here. What is more, Section 42 expressly
limits the period of preventive suspension to ninety (90) days. Sec.
91 of R.A. 6975 which states that "The Civil Service Law and its
implementing rules shall apply to all personnel of the Department"
simply means that the provisions of the Civil Service Law and its
implementing rules and regulations are applicable to members of
the Philippine National Police insofar as the provisions, rules and
regulations are not inconsistent with R.A. 6975. Certainly, Section
42 of the Civil Service Decree which limits the preventive
suspension to ninety (90) days cannot apply to members of the
PNP because Sec. 47 of R.A. 6995 provides differently, that is, the
suspension where the penalty imposed by law exceeds six (6)
years shall continue until the case is terminated.
 Third. Petitioner's reliance on Layno and Deloso is misplaced.
These cases all stemmed from charges in violation of R.A. 3019
(1060), otherwise known as the Anti-Graft and Corrupt Practices
Act which, unlike R.A. 6975, is silent on the duration of the
preventive suspension. Sec. 13 of R.A. 3019 reads as follows:
Suspension and loss of benefits. — Any public officer
against whom any criminal prosecution under a valid
information under this Act or under the provisions of the
Revised Penal Code on bribery is pending in court, shall be
suspended from office. Should he be convicted by final
judgment, he shall lose all retirement of gratuity benefits
under any law, but if he is acquitted, he shall be entitled to
reinstatement and to the salaries and benefits which he failed
to receive during suspension, unless in the meantime
administrative proceedings have been filed against him.
In the case of Layno, the duly elected mayor of Lianga,
Surigao del Sur, was preventively suspended after an information
was filed against him for offenses under R.A. 3019 (1060), the Anti-
Graft Corrupt Practices Act. He had been suspended for four (4)
months at the time he filed a motion to lift his preventive
suspension. We held that his indefinite preventive suspension
violated the "equal protection clause" and shortened his term of
office. Thus:
2. Petitioner is a duly elected municipal mayor of Lianga,
Surigao del Sur. His term of office does not expire until 1986.
Were it not for this information and the suspension decreed by
the Sandiganbayan according to the Anti-Graft and Corrupt
Practices Act, he would have been all this while in the full
discharge of his functions as such municipal mayor. He was
elected precisely to do so. As of October 26, 1983, he has been
unable to. It is a basic assumption of the electoral process
implicit in the right of suffrage that the people are entitled to
the services of elective officials of their choice. For
misfeasance or malfeasance, any of them could, of course, be
proceeded against administratively or, as in this instance,
criminally. In either case, his culpability must be established.
Moreover, if there be a criminal action, he is entitled to the
constitutional presumption of innocence. A preventive
suspension may be justified. Its continuance, however, for an
unreasonable length of time raises a due process question. For
even if thereafter he were acquitted, in the meanwhile his
right to hold office had been nullified. Clearly, there would be
in such a case an injustice suffered by him. Nor is he the only
victim. There is injustice inflicted likewise on the people of
Lianga. They were deprived of the services of the man they
had elected to serve as mayor. In that sense, to paraphrase
 Justice Cardozo, the protracted continuance of this preventive
suspension had outrun the bounds of reason and resulted in
sheer oppression. A denial of due process is thus quite
manifest. It is to avoid such an unconstitutional application
that the order of suspension should be lifted.prLL

3. Nor is it solely the denial of procedural due process

that is apparent. There is likewise an equal protection
question. If the case against petitioner Layno were
administrative in character the Local Government Code would
be applicable. It is therein clearly provided that while
preventive suspension is allowable for the causes therein
enumerated, there is this emphatic limitation on the duration
thereof: "In all cases, preventive suspension shall not extend
beyond sixty days after the start of said suspension." It may
be recalled that the principle against indefinite suspension
applies equally to national government officials. So it was held
in the leading case of Garcia v. Hon. Executive Secretary.
According to the opinion of Justice Barrera: "To adopt the
theory of respondents that an officer appointed by the
President, facing administrative charges, can be preventively
suspended indefinitely, would be to countenance a situation
where the preventive suspension can, in effect, be the penalty
itself without a finding of guilt after due hearing, contrary to
the express mandate of the Constitution and the Civil Service
law." Further: "In the guise of a preventive suspension, his
term of office could be shortened and he could in effect, be
removed without a finding of a cause duly established after
due hearing, in violation of the Constitution. Clearly then, the
policy of the law mandated by the Constitution frowns at a
suspension of indefinite duration. In this particular case, the
mere fact that petitioner is facing a charge under the Anti-
Graft and Corrupt Practices Act does not justify a different
rule of law. To do so would be to negate the safeguard of the
equal protection guarantee." 11
The case of Deloso, likewise, involved another elective
official who was preventively suspended as provincial governor,
also under RA 3019 the Anti-Graft Law. This Court, faced with
similar factual circumstances as in Layno, applied the ruling in the
latter case "in relation to the principles of due process and equal
protection."
It is readily apparent that Section 13 of R.A. 3019 upon which
the preventive suspension of the accused in Layno and Deloso was
based is silent with respect to the duration of the preventive
suspension, such that the suspension of the accused therein for a
prolonged and unreasonable length of time raised a due process
question. Not so in the instant case. Petitioner is charged with
murder under the Revised Penal Code and it is undisputed that he
falls squarely under Sec. 47 of R. A. 6995 which categorically
states that his suspension shall last until the case is terminated.
The succeeding sentence of the same section requires the case to
be subjected to continuous trial which shall be terminated within
ninety (90) days from arraignment of the accused. As previously
emphasized, nowhere in the law does it say that after the lapse of
the 90-day period for trial, the preventive suspension should be
lifted. The law is clear, the ninety (90) days duration applies to the
trial of the case not to the suspension. Nothing else should be
read into the law. When the words and phrases of the statute are
clear and unequivocal, their meaning determined from the
language employed and the statute must be taken to mean exactly
what it says. 12
Fourth. From the deliberations of the Bicameral Conference
Committee on National Defense relative to the bill that
became R.A. 6975, the meaning of Section 47 of R.A. 6975 insofar
as the period of suspension is concerned becomes all the more
clear. We quote:
So other than that in that particular section, ano ba itong
'Jurisdiction in Criminal Cases?' What is this all about?
REP. ZAMORA. In case they are charged with crimes.
THE CHAIRMAN (SEN. MACEDA). Ah, the previous one is
administrative, no. Now, if it is charged with a crime, regular
courts.
SEN. GONZALES. Ano, the courts mismo ang
magsasabing . . .
THE CHAIRMAN (SEN. MACEDA). No, the jurisdiction.
REP. ZAMORA. The jurisdiction if there is robbery.
THE CHAIRMAN (SEN. MACEDA). Okay. 'Preventive
Suspension Pending Criminal Case. Upon the filing of a
complaint or informations sufficient in form and substance
against a member of the PNP for grave felonies where the
penalty imposed by law is six years and one day or more, the
court shall immediately suspend the accused from the office
until the case is terminated.' REP. ALBANO. Where are we now
Mr. Chairman.
THE CHAIRMAN (SEN. MACEDA). Grave felonies ito e. Six
years and one day or more.
SEN. SAGUISAG. Kung five years and litigation ng
Supreme Court, ganoon ba and . . .?
THE CHAIRMAN (SEN. MACEDA). Hindi, dahil iyong iba
panay disciplinary iyon e.
 SEN. PIMENTEL. Anong page iyan, Rene?
THE CHAIRMAN (SEN. MACEDA). Page 29 — Preventive
Suspension.
REP. GUTANG. Ang complaint kasi ng mga tao, pagka
may pulis na may criminal case at may baril pa rin at nag-
uuniforme, hindi magandang tingnan e. So parang natatakot
iyong mga witnesses.
SEN. GONZALES. Anyway, kung ma-exempt na rito naman
siya e.
REP. GUTANG. Mayroong entitlement to reinstatement
and pay . . .
xxx xxx xxx
SEN. PIMENTEL. Dito sa 'Preventive Suspension Pending
Criminal Case.' Okay ito but I think we should also mandate
the early termination of the case. Ibig sabihin, okay, hindi ba
'the suspension of the accused from office until the case is
terminated?' Alam naman natin ang takbo ng mga kaso rito sa
ating bansa e.
REP. ZAMORA. Twenty days, okay na.
SEN. PIMENTEL. Hindi, ibig kong sabihin, let us just
assume that a case can be, as Rene pointed out, can run to six
years bago ma-terminate, sometimes ten years pa nga e. Okay,
but maybe we should mandate . . .
REP. ZAMORA. Continuous hearing.
SEN. PIMENTEL. Not only that, but the case must be
terminated within a period.
REP. ALBANO. Ninety days na ho sa Supreme Court the
trial.
SEN. PIMENTEL. Ha?
REP. ALBANO. The trial must be done within ninety days.
SEN. PIMENTEL. Ang ibig kong sabihin kung maari
sanang ilagay rito that the case shall also be terminated in
one year from the time . aywan ko kung kaya nating gawin
iyon. REP. ALBANO. One resolution, Mr. Chairman.
THE CHAIRMAN (SEN. MACEDA). Criminal case? Hindi ba
that has all been held as directory even if you put it in the law?
SEN. PIMENTEL. I know, but, iyon na nga, we are looking
at some solution to a particular situation.
SEN. ANGARA. Let's have continuous hearing and be
terminated not later than ninety days.
REP. ZAMORA. Ang point ni Ernie, that's really only the
directory . All of these, well, looks exactly the same thing.
 SEN. ANGARA. No, but at least, we will shorten it up in a
case like this. We are really keen on having it quick, swift.
SEN. PIMENTEL. Swift justice.
REP. ALBANO. Mr. Chairman.
THE CHAIRMAN. (SEN. MACEDA). Yes.
REP. ALBANO. Following the Veloso case in Anti-graft
cases before the Sandiganbayan, the preventive suspension is
only ninety days. In no case shall it go beyond ninety days
which can also be applicable here because this is a preventive
suspension.
SEN. PIMENTEL. No, because you can legislate at least.
SEN. SAGUISAG. But then the case may be anti-graft ha.
The case filed against a policeman may be anti-graft in
nature . . .
SEN. PIMENTEL. Correct, correct, but is that a
constitutional provision? Is it?
REP. ALBANO. No, but as a standard procedure.
SEN. PIMENTEL. Then you can legislate.
THE CHAIRMAN (SEN. MACEDA). No, because this
particular provision is for criminal cases. I know anti-graft is a
criminal case but here we are talking, let's say, of murder,
rape, treason, robbery. That's why it is in that context
that there is a difference between a purely anti-graft case and
a criminal case which should be a serious case since it is six
years and one day or more, so it must be already a grave
felony.
xxx xxx xxx
REP. ALBANO. What I mean to say is, preventive
suspension, we can use the Veloso case.
THE CHAIRMAN (SEN. MACEDA). No, that's too short,
that's what I am saying. The feeling here is, for policeman, we
have to be stricter especially if it is a criminal case .
What Rene is just trying to say is, he is agreeable that
the suspension is until the case is terminated, but he just
wants some administrative balancing to expedite it. So let us
study what kind of language could be done along that line. So
just on the National Police Commission.
SEN. ANGARA. Can I suggest a language that may reflect
...
THE CHAIRMAN (SEN MACEDA). Okay, please.
SEN. ANGARA. 'Such case shall be subject to continuous
trial and be terminated not later than . . .' whatever we agree.
 THE CHAIRMAN (SEN. MACEDA). Okay, so let's study
that.
So if there are any further amendments to Chapter 2 on
the National Police Commission . . . 13
The foregoing discussions reveal the legislative intent to
place on preventive suspension a member of the PNP charged with
grave felonies where the penalty imposed by law exceeds six
years of imprisonment and which suspension continues until the
case against him is terminated.
The reason why members of the PNP are treated differently
from the other classes of persons charged criminally or
administratively insofar as the application of the rule on
preventive suspension is concerned is that policemen carry
weapons and the badge of the law which can be used to harass or
intimidate witnesses against them, as succinctly brought out in
the legislative discussions. LLjur

If a suspended policeman criminally charged with a serous

offense is reinstated to his post while his case is pending, his
victim and the witnesses against him are obviously exposed to
constant threat and thus easily cowed to silence by the mere fact
that the accused is in uniform and armed. the imposition of
preventive suspension for over 90 days under Section 47 of R.A.
6975 does not violate the suspended policeman's constitutional
right to equal protection of the laws.
The equal protection clause exists to prevent undue favor or
privilege. It is intended to eliminate discrimination and oppression
based on inequality. Recognizing the existence of real differences
among men, the equal protection clause does not demand
absolute equality. It merely requires that all persons shall be
treated alike, under like circumstances and conditions both as to
the privileges conferred and liabilities enforced. 14 Thus, the equal
protection clause does not absolutely forbid classifications, such
as the one which exists in the instant case. If the classification is
based on real and substantial differences; 15 is germane to the
purpose of the law; 16 applies to all members of the same
class; 17 and applies to current as well as future conditions, 18 the
classification may not be impugned as violating the Constitution's
equal protection guarantee. A distinction based on real and
reasonable considerations related to a proper legislative purpose
such as that which exists here is neither unreasonable, capricious
nor unfounded.
ACCORDINGLY, the petition is hereby DISMISSED.
SO ORDERED.
 (Himagan v. People, G.R. No. 113811, [October 7, 1994], 307 PHIL 555-
|||

569)

[G.R. No. 189698. February 22, 2010.]

ELEAZAR P. QUINTO and GERINO A. TOLENTINO,

JR., petitioners, vs. COMMISSION ON
ELECTIONS, respondent.

RESOLUTION

PUNO, C.J :
p

Upon a careful review of the case at bar, this Court resolves to

grant the respondent Commission on Elections' (COMELEC) motion for
reconsideration, and the movants-intervenors' motions for
reconsideration-in-intervention, of this Court's December 1, 2009
Decision (Decision). 1
The assailed Decision granted the Petition for Certiorari and
Prohibition filed by Eleazar P. Quinto and Gerino A. Tolentino, Jr. and
declared as unconstitutional the second proviso in the third paragraph
of Section 13 of Republic Act No. 9369, 2 Section 66 of the Omnibus
Election Code 3 and Section 4 (a) of COMELEC Resolution No.
8678, 4 mainly on the ground that they violate the equal protection
clause of the Constitution and suffer from overbreadth. The assailed
Decision thus paved the way for public appointive officials to continue
discharging the powers, prerogatives and functions of their office
notwithstanding their entry into the political arena.
In support of their respective motions for reconsideration,
respondent COMELEC and movants-intervenors submit the following
arguments:
(1) The assailed Decision is contrary to, and/or violative of,
the constitutional proscription against the participation
of public appointive officials and members of the
military in partisan political activity;
(2) The assailed provisions do not violate the equal protection
clause when they accord differential treatment to
elective and appointive officials, because such
differential treatment rests on material and substantial
distinctions and is germane to the purposes of the
law;cDaEAS

(3) The assailed provisions do not suffer from the infirmity of

overbreadth; and
(4) There is a compelling need to reverse the assailed
Decision, as public safety and interest demand such
reversal.
We find the foregoing arguments meritorious.
I.
Procedural Issues
First, we shall resolve the procedural issues on the timeliness of
the COMELEC's motion for reconsideration which was filed on
December 15, 2009, as well as the propriety of the motions for
reconsideration-in-intervention which were filed after the Court had
rendered its December 1, 2009 Decision.
i. Timeliness of COMELEC's Motion for Reconsideration
Pursuant to Section 2, Rule 56-A of the 1997 Rules of Court, 5 in
relation to Section 1, Rule 52 of the same rules, 6 COMELEC had a
period of fifteen days from receipt of notice of the assailed Decision
within which to move for its reconsideration. COMELEC received
notice of the assailed Decision on December 2, 2009, hence, had until
December 17, 2009 to file a Motion for Reconsideration.
The Motion for Reconsideration of COMELEC was timely filed. It
was filed on December 14, 2009. The corresponding Affidavit of
Service (in substitution of the one originally submitted on December
14, 2009) was subsequently filed on December 17, 2009 — still within
the reglementary period.
ii. Propriety of the Motions for Reconsideration-in-Intervention
Section 1, Rule 19 of the Rules of Court provides:
A person who has legal interest in the matter in litigation or
in the success of either of the parties, or an interest against both,
or is so situated as to be adversely affected by a distribution or
other disposition of property in the custody of the court or of an
officer thereof may, with leave of court, be allowed to intervene in
the action. The court shall consider whether or not the
intervention will unduly delay or prejudice the adjudication of the
rights of the original parties, and whether or not the intervenor's
rights may be fully protected in a separate proceeding.
Pursuant to the foregoing rule, this Court has held that a motion
for intervention shall be entertained when the following requisites are
satisfied: (1) the would-be intervenor shows that he has a substantial
right or interest in the case; and (2) such right or interest cannot be
adequately pursued and protected in another proceeding. 7 SCIacA

Upon the other hand, Section 2, Rule 19 of the Rules of

Court provides the time within which a motion for intervention may be
filed, viz.:
SECTION 2. Time to intervene. — The motion for intervention
may be filed at any time before rendition of judgment by the trial
court. A copy of the pleading-in-intervention shall be attached to
the motion and served on the original parties. (italics supplied)
This rule, however, is not inflexible. Interventions have been
allowed even beyond the period prescribed in the Rule, when
demanded by the higher interest of justice. Interventions have also
been granted to afford indispensable parties, who have not been
impleaded, the right to be heard even after a decision has been
rendered by the trial court, 8 when the petition for review of the
judgment has already been submitted for decision before the Supreme
Court, 9 and even where the assailed order has already become final
and executory. 10 In Lim v. Pacquing, 11 the motion for intervention filed
by the Republic of the Philippines was allowed by this Court to avoid
grave injustice and injury and to settle once and for all the substantive
issues raised by the parties.
 In fine, the allowance or disallowance of a motion for intervention
rests on the sound discretion of the court 12 after consideration of the
appropriate circumstances. 13 We stress again that Rule 19 of
the Rules of Court is a rule of procedure whose object is to make the
powers of the court fully and completely available for justice. 14 Its
purpose is not to hinder or delay, but to facilitate and promote the
administration of justice. 15
We rule that, with the exception of the IBP-Cebu City Chapter, all
the movants-intervenors may properly intervene in the case at bar.
First, the movants-intervenors have each sufficiently established
a substantial right or interest in the case.
As a Senator of the Republic, Senator Manuel A. Roxas has a right
to challenge the December 1, 2009 Decision, which nullifies a long
established law; as a voter, he has a right to intervene in a matter that
involves the electoral process; and as a public officer, he has a
personal interest in maintaining the trust and confidence of the public
in its system of government.
On the other hand, former Senator Franklin M. Drilon and Tom V.
Apacible are candidates in the May 2010 elections running against
appointive officials who, in view of the December 1, 2009 Decision,
have not yet resigned from their posts and are not likely to resign from
their posts. They stand to be directly injured by the assailed Decision,
unless it is reversed.
Moreover, the rights or interests of said movants-intervenors
cannot be adequately pursued and protected in another proceeding.
Clearly, their rights will be foreclosed if this Court's Decision attains
finality and forms part of the laws of the land.
With regard to the IBP-Cebu City Chapter, it anchors its standing
on the assertion that "this case involves the constitutionality of
elections laws for this coming 2010 National Elections," and that
"there is a need for it to be allowed to intervene . . . so that the voice
of its members in the legal profession would also be heard before this
Highest Tribunal as it resolves issues of transcendental
importance." 16 SDHacT

Prescinding from our rule and ruling case law, we find that the
IBP-Cebu City Chapter has failed to present a specific and substantial
interest sufficient to clothe it with standing to intervene in the case at
bar. Its invoked interest is, in character, too indistinguishable to justify
its intervention.
We now turn to the substantive issues.
II.
 Substantive Issues
The assailed Decision struck down Section 4 (a) of Resolution
8678, the second proviso in the third paragraph of Section 13
of Republic Act (RA) 9369, and Section 66 of the Omnibus Election
Code, on the following grounds:
(1) They violate the equal protection clause of
the Constitution because of the differential treatment of
persons holding appointive offices and those holding
elective positions;
(2) They are overbroad insofar as they prohibit the candidacy
of all civil servants holding appointive posts: (a) without
distinction as to whether or not they occupy
high/influential positions in the government, and (b) they
limit these civil servants' activity regardless of whether
they be partisan or nonpartisan in character, or whether
they be in the national, municipal or barangay level; and
(3) Congress has not shown a compelling state interest to
restrict the fundamental right of these public appointive
officials.
We grant the motions for reconsideration. We now rule that
Section 4 (a) of Resolution 8678, Section 66 of the Omnibus Election
Code, and the second proviso in the third paragraph of Section 13
of RA 9369 are not unconstitutional, and accordingly reverse our
December 1, 2009 Decision.
III.
Section 4 (a) of COMELEC Resolution 8678 Compliant with Law
Section 4 (a) of COMELEC Resolution 8678 is a faithful reflection
of the present state of the law and jurisprudence on the matter, viz.:
Incumbent Appointive Official. — Under Section 13 of RA
9369, which reiterates Section 66 of the Omnibus Election Code,
any person holding a public appointive office or position, including
active members of the Armed Forces of the Philippines, and
officers and employees in government-owned or -controlled
corporations, shall be considered ipso facto resigned from his
office upon the filing of his certificate of candidacy.
Incumbent Elected Official. — Upon the other hand, pursuant
to Section 14 of RA 9006 or the Fair Election Act, 17 which repealed
Section 67 of the Omnibus Election Code 18 and rendered
ineffective Section 11 of R.A. 8436 insofar as it considered an
elected official as resigned only upon the start of the campaign
period corresponding to the positions for which they are
running, 19 an elected official is not deemed to have resigned from
 his office upon the filing of his certificate of candidacy for the
same or any other elected office or position. In fine, an elected
official may run for another position without forfeiting his seat.ADEHTS

These laws and regulations implement Section 2 (4), Article IX-B of

the 1987 Constitution, which prohibits civil service officers and
employees from engaging in any electioneering or partisan political
campaign.
The intention to impose a strict limitation on the participation of
civil service officers and employees in partisan political campaigns is
unmistakable. The exchange between Commissioner Quesada and
Commissioner Foz during the deliberations of the Constitutional
Commission is instructive:
MS. QUESADA.
xxx xxx xxx
Secondly, I would like to address the issue here as provided
in Section 1 (4), line 12, and I quote: "No officer or employee
in the civil service shall engage, directly or indirectly, in any
partisan political activity." This is almost the same provision
as in the 1973 Constitution. However, we in the government
service have actually experienced how this provision has
been violated by the direct or indirect partisan political
activities of many government officials.
So, is the Committee willing to include certain clauses that
would make this provision more strict, and which would deter
its violation?
MR. FOZ.
Madam President, the existing Civil Service Law and the
implementing rules on the matter are more than exhaustive
enough to really prevent officers and employees in the public
service from engaging in any form of partisan political
activity. But the problem really lies in implementation
because, if the head of a ministry, and even the superior
officers of offices and agencies of government will
themselves violate the constitutional injunction against
partisan political activity, then no string of words that we
may add to what is now here in this draft will really
implement the constitutional intent against partisan political
activity. . . . 20 (italics supplied)
To emphasize its importance, this constitutional ban on civil
service officers and employees is presently reflected and
implemented by a number of statutes. Section 46 (b) (26), Chapter 7
and Section 55, Chapter 8 — both of Subtitle A, Title I, Book V of
the Administrative Code of 1987 — respectively provide in relevant
part:
Section 44. Discipline: General Provisions:
xxx xxx xxx
(b) The following shall be grounds for disciplinary action:
xxx xxx xxx
(26) Engaging directly or indirectly in partisan political
activities by one holding a non-political office. TCacIE

xxx xxx xxx

Section 55. Political Activity. — No officer or employee in the
Civil Service including members of the Armed Forces, shall engage
directly or indirectly in any partisan political activity or take part in
any election except to vote nor shall he use his official authority or
influence to coerce the political activity of any other person or
body. Nothing herein provided shall be understood to prevent any
officer or employee from expressing his views on current political
problems or issues, or from mentioning the names of his
candidates for public office whom he supports: Provided, That
public officers and employees holding political offices may take
part in political and electoral activities but it shall be unlawful for
them to solicit contributions from their subordinates or subject
them to any of the acts involving subordinates prohibited in the
Election Code.
Section 261 (i) of Batas Pambansa Blg. 881 (the Omnibus Election
Code) further makes intervention by civil service officers and
employees in partisan political activities an election offense, viz.:
SECTION 261. Prohibited Acts. — The following shall be guilty
of an election offense:
xxx xxx xxx
(i) Intervention of public officers and employees. — Any
officer or employee in the civil service, except those holding
political offices; any officer, employee, or member of the Armed
Forces of the Philippines, or any police force, special forces, home
defense forces, barangay self-defense units and all other para-
military units that now exist or which may hereafter be organized
who, directly or indirectly, intervenes in any election campaign or
engages in any partisan political activity, except to vote or to
preserve public order, if he is a peace officer.
The intent of both Congress and the framers of
our Constitution to limit the participation of civil service officers and
employees in partisan political activities is too plain to be mistaken.
 But Section 2 (4), Article IX-B of the 1987 Constitution and the
implementing statutes apply only to civil servants
holding apolitical offices. Stated differently,the constitutional ban
does not cover elected officials, notwithstanding the fact that "[t]he
civil service embraces all branches, subdivisions, instrumentalities,
and agencies of the Government, including government-owned or
controlled corporations with original charters." 21 This is because
elected public officials, by the very nature of their office, engage in
partisan political activities almost all year round, even outside of the
campaign period. 22 Political partisanship is the inevitable essence of
a political office, elective positions included. 23
The prohibition notwithstanding, civil service officers and
employees are allowed to vote, as well as express their views on
political issues, or mention the names of certain candidates for public
office whom they support. This is crystal clear from the deliberations
of the Constitutional Commission, viz.:
MS. AQUINO:
Mr. Presiding Officer, my proposed amendment is on page 2,
Section 1, subparagraph 4, lines 13 and 14. On line 13,
between the words "any" and "partisan," add the phrase
ELECTIONEERING AND OTHER; and on line 14, delete the
word "activity" and in lieu thereof substitute the word
CAMPAIGN. AaITCS

May I be allowed to explain my proposed amendment?

THE PRESIDING OFFICER (Mr. Treñas):
Commissioner Aquino may proceed.
MS. AQUINO:
The draft as presented by the Committee deleted the phrase
"except to vote" which was adopted in both the 1935
and 1973 Constitutions. The phrase "except to vote" was not
intended as a guarantee to the right to vote but as a
qualification of the general prohibition against taking part in
elections.
Voting is a partisan political activity. Unless it is explicitly
provided for as an exception to this prohibition, it will amount
to disenfranchisement. We know that suffrage, although
plenary, is not an unconditional right. In other words, the
Legislature can always pass a statute which can withhold
from any class the right to vote in an election, if public
interest so required. I would only like to reinstate the
qualification by specifying the prohibited acts so that those
who may want to vote but who are likewise prohibited from
 participating in partisan political campaigns or
electioneering may vote.
MR. FOZ:
There is really no quarrel over this point, but please
understand that there was no intention on the part of the
Committee to disenfranchise any government official or
employee. The elimination of the last clause of this provision
was precisely intended to protect the members of the civil
service in the sense that they are not being deprived of the
freedom of expression in a political contest. The last phrase
or clause might have given the impression that a government
employee or worker has no right whatsoever in an election
campaign except to vote, which is not the case. They are still
free to express their views although the intention is not
really to allow them to take part actively in a political
campaign. 24
IV.
Section 4(a) of Resolution 8678, Section 13 of RA 9369, and
Section 66 of the Omnibus Election Code Do Not Violate the
Equal Protection Clause
We now hold that Section 4 (a) of Resolution 8678, Section 66 of
the Omnibus Election Code, and the second proviso in the third
paragraph of Section 13 of RA 9369 are not violative of the equal
protection clause of the Constitution. DcTSHa

i. Fariñas, et al. v. Executive Secretary, et al. is Controlling

In truth, this Court has already ruled squarely on whether these
deemed-resigned provisions challenged in the case at bar violate the
equal protection clause of the Constitution in Fariñas, et al. v.
Executive Secretary, et al. 25
In Fariñas, the constitutionality of Section 14 of the Fair Election
Act, in relation to Sections 66 and 67 of the Omnibus Election Code,
was assailed on the ground, among others, that it unduly discriminates
against appointive officials. As Section 14 repealed Section 67
(i.e., the deemed-resigned provision in respect of elected officials) of
the Omnibus Election Code, elected officials are no longer
considered ipso facto resigned from their respective offices upon their
filing of certificates of candidacy. In contrast, since Section 66 was
not repealed, the limitation on appointive officials continues to be
operative — they are deemed resigned when they file their certificates
of candidacy.
The petitioners in Fariñas thus brought an equal protection
challenge against Section 14, with the end in view of having the
deemed-resigned provisions "apply equally" to both elected and
appointive officials. We held, however, that the legal dichotomy
created by the Legislature is a reasonable classification, as there are
material and significant distinctions between the two classes of
officials. Consequently, the contention that Section 14 of the Fair
Election Act, in relation to Sections 66 and 67 of the Omnibus Election
Code, infringed on the equal protection clause of the Constitution,
failed muster. We ruled:
The petitioners' contention, that the repeal of Section 67 of
the Omnibus Election Code pertaining to elective officials gives
undue benefit to such officials as against the appointive ones and
violates the equal protection clause of the constitution, is tenuous.
The equal protection of the law clause in the Constitution is
not absolute, but is subject to reasonable classification. If the
groupings are characterized by substantial distinctions that make
real differences, one class may be treated and regulated
differently from the other. The Court has explained the nature of
the equal protection guarantee in this manner:
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 it 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 exist for making a distinction between those who fall
within such class and those who do not. ADTEaI

Substantial distinctions clearly exist between elective

officials and appointive officials. The former occupy their office by
virtue of the mandate of the electorate. They are elected to an
office for a definite term and may be removed therefrom only upon
stringent conditions. On the other hand, appointive officials hold
their office by virtue of their designation thereto by an appointing
authority. Some appointive officials hold their office in a
permanent capacity and are entitled to security of tenure while
others serve at the pleasure of the appointing authority.
Another substantial distinction between the two sets of
officials is that under Section 55, Chapter 8, Title I, Subsection A.
Civil Service Commission, Book V of theAdministrative Code of
1987 (Executive Order No. 292), appointive officials, as officers and
 employees in the civil service, are strictly prohibited from
engaging in any partisan political activity or take (sic) part in any
election except to vote. Under the same provision, elective
officials, or officers or employees holding political offices, are
obviously expressly allowed to take part in political and electoral
activities.
By repealing Section 67 but retaining Section 66 of
the Omnibus Election Code, the legislators deemed it proper to
treat these two classes of officials differently with respect to the
effect on their tenure in the office of the filing of the certificates of
candidacy for any position other than those occupied by them.
Again, it is not within the power of the Court to pass upon or look
into the wisdom of this classification.
Since the classification justifying Section 14 of Rep. Act No.
9006, i.e., elected officials vis-à-vis appointive officials, is
anchored upon material and significant distinctions and all the
persons belonging under the same classification are similarly
treated, the equal protection clause of the Constitution is, thus,
not infringed. 26
The case at bar is a crass attempt to resurrect a dead issue. The
miracle is that our assailed Decision gave it new life. We ought to be
guided by the doctrine ofstare decisis et non quieta movere. This
doctrine, which is really "adherence to precedents," mandates that
once a case has been decided one way, then another case involving
exactly the same point at issue should be decided in the same
manner. 27 This doctrine is one of policy grounded on the necessity for
securing certainty and stability of judicial decisions. As the renowned
jurist Benjamin Cardozo stated in his treatise The Nature of the
Judicial Process:
It will not do to decide the same question one way between
one set of litigants and the opposite way between another. "If a
group of cases involves the same point, the parties expect the
same decision. It would be a gross injustice to decide alternate
cases on opposite principles. If a case was decided against me
yesterday when I was a defendant, I shall look for the same
judgment today if I am plaintiff. To decide differently would raise a
feeling of resentment and wrong in my breast; it would be an
infringement, material and moral, of my rights." Adherence to
precedent must then be the rule rather than the exception if
litigants are to have faith in the even-handed administration of
justice in the courts. 28CaHAcT

Our Fariñas ruling on the equal protection implications of the

deemed-resigned provisions cannot be minimalized as mere obiter
dictum. It is trite to state that an adjudication on any point within the
issues presented by the case cannot be considered as obiter
dictum. 29 This rule applies to all pertinent questions that are
presented and resolved in the regular course of the consideration of
the case and lead up to the final conclusion, and to any statement as
to the matter on which the decision is predicated. 30 For that reason, a
point expressly decided does not lose its value as a precedent
because the disposition of the case is, or might have been, made on
some other ground; or even though, by reason of other points in the
case, the result reached might have been the same if the court had
held, on the particular point, otherwise than it did. 31 As we held
in Villanueva, Jr. v. Court of Appeals, et al.: 32
. . . A decision which the case could have turned on is not
regarded as obiter dictum merely because, owing to the disposal
of the contention, it was necessary to consider another
question, nor can an additional reason in a decision, brought
forward after the case has been disposed of on one ground, be
regarded as dicta. So, also, where a case presents two (2) or more
points, any one of which is sufficient to determine the ultimate
issue, but the court actually decides all such points, the case as
an authoritative precedent as to every point decided, and none of
such points can be regarded as having the status of a dictum, and
one point should not be denied authority merely because another
point was more dwelt on and more fully argued and considered, nor
does a decision on one proposition make statements of the court
regarding other propositions dicta. 33 (italics supplied)
ii. Classification Germane to the Purposes of the Law
The Fariñas ruling on the equal protection challenge stands on
solid ground even if reexamined.
To start with, the equal protection clause does not require the
universal application of the laws to all persons or things without
distinction. 34 What it simply requires is equality among equals as
determined according to a valid classification. 35 The test developed
by jurisprudence here and yonder is that of reasonableness, 36 which
has four requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class. 37

Our assailed Decision readily acknowledged that these deemed-

resigned provisions satisfy the first, third and fourth requisites of
reasonableness. It, however, proffers the dubious conclusion that the
differential treatment of appointive officials vis-à-vis elected officials
is not germane to the purpose of the law, because "whether one holds
an appointive office or an elective one, the evils sought to be
prevented by the measure remain," viz.: SCEDaT

. . . For example, the Executive Secretary, or any Member of

the Cabinet for that matter, could wield the same influence as the
Vice-President who at the same time is appointed to a Cabinet
post (in the recent past, elected Vice-Presidents were appointed to
take charge of national housing, social welfare development,
interior and local government, and foreign affairs). With the fact
that they both head executive offices, there is no valid justification
to treat them differently when both file their [Certificates of
Candidacy] for the elections. Under the present state of our law,
the Vice-President, in the example, running this time, let us say, for
President, retains his position during the entire election period and
can still use the resources of his office to support his campaign. 38
Sad to state, this conclusion conveniently ignores the long-
standing rule that to remedy an injustice, the Legislature need not
address every manifestation of the evil at once; it may proceed "one
step at a time." 39 In addressing a societal concern, it must invariably
draw lines and make choices, thereby creating some inequity as to
those included or excluded. 40 Nevertheless, as long as "the bounds of
reasonable choice" are not exceeded, the courts must defer to the
legislative judgment. 41 We may not strike down a law merely because
the legislative aim would have been more fully achieved by expanding
the class. 42 Stated differently, the fact that a legislative classification,
by itself, is underinclusive will not render it unconstitutionally
arbitrary or invidious. 43 There is no constitutional requirement that
regulation must reach each and every class to which it might be
applied; 44 that the Legislature must be held rigidly to the choice of
regulating all or none.
Thus, any person who poses an equal protection challenge must
convincingly show that the law creates a classification that is
"palpably arbitrary or capricious." 45 He must refute all possible
rational bases for the differing treatment, whether or not the
Legislature cited those bases as reasons for the enactment, 46 such
that the constitutionality of the law must be sustained even if the
reasonableness of the classification is "fairly debatable." 47 In the
case at bar, the petitioners failed — and in fact did not even attempt —
to discharge this heavy burden. Our assailed Decision was likewise
silent as a sphinx on this point even while we submitted the following
thesis:
. . . [I]t is not sufficient grounds for invalidation that we may
find that the statute's distinction is unfair, underinclusive, unwise,
or not the best solution from a public-policy standpoint; rather, we
 must find that there is no reasonably rational reason for the
differing treatment. 48
In the instant case, is there a rational justification for
excluding elected officials from the operation of the deemed
resigned provisions? I submit that there is.
An election is the embodiment of the popular will, perhaps
the purest expression of the sovereign power of the people. 49 It
involves the choice or selection of candidates to public office by
popular vote. 50 Considering that elected officials are put in office
by their constituents for a definite term, it may justifiably be said
that they were excluded from the ambit of the deemed resigned
provisions in utmost respect for the mandate of the sovereign will.
In other words, complete deference is accorded to the will of the
electorate that they be served by such officials until the end of the
term for which they were elected. In contrast, there is no such
expectation insofar as appointed officials are concerned. CaSHAc

The dichotomized treatment of appointive and elective

officials is therefore germane to the purposes of the law. For the
law was made not merely to preserve the integrity, efficiency, and
discipline of the public service; the Legislature, whose wisdom is
outside the rubric of judicial scrutiny, also thought it wise to
balance this with the competing, yet equally compelling, interest
of deferring to the sovereign will. 51 (emphasis in the original)
In fine, the assailed Decision would have us "equalize the playing
field" by invalidating provisions of law that seek to restrain the evils
from running riot. Under the pretext of equal protection, it would favor
a situation in which the evils are unconfined and vagrant, existing at
the behest of both appointive and elected officials, over another in
which a significant portion thereof is contained. The absurdity of that
position is self-evident, to say the least.
The concern, voiced by our esteemed colleague, Mr. Justice
Nachura, in his dissent, that elected officials (vis-à-vis appointive
officials) have greater political clout over the electorate, is indeed a
matter worth exploring — but not by this Court. Suffice it to say that
the remedy lies with the Legislature. It is the Legislature that is given
the authority, under our constitutional system, to balance competing
interests and thereafter make policy choices responsive to the
exigencies of the times. It is certainly within the Legislature's power
to make the deemed-resigned provisions applicable to elected
officials, should it later decide that the evils sought to be prevented
are of such frequency and magnitude as to tilt the balance in favor of
expanding the class. This Court cannot and should not arrogate unto
itself the power to ascertain and impose on the people the best state
of affairs from a public policy standpoint.
 iii. Mancuso v. Taft Has Been Overruled
Finding no Philippine jurisprudence to prop up its equal
protection ruling, our assailed Decision adverted to, and extensively
cited, Mancuso v. Taft. 52 This was a decision of the First Circuit of the
United States Court of Appeals promulgated in March 1973, which
struck down as unconstitutional a similar statutory provision.
Pathetically, our assailed Decision, relying on Mancuso, claimed:
(1) The right to run for public office is "inextricably linked"
with two fundamental freedoms — freedom of expression
and association;
(2) Any legislative classification that significantly burdens
this fundamental right must be subjected to strict equal
protection review; and
(3) While the state has a compelling interest in maintaining
the honesty and impartiality of its public work force, the
deemed-resigned provisions pursue their objective in a
far too heavy-handed manner as to render them
unconstitutional.
It then concluded with the exhortation that since "the Americans, from
whom we copied the provision in question, had already stricken down
a similar measure for being unconstitutional[,] it is high-time that we,
too, should follow suit."TCHcAE

Our assailed Decision's reliance on Mancuso is completely

misplaced. We cannot blink away the fact that the United States
Supreme Court effectively overruled Mancuso three months after its
promulgation by the United States Court of Appeals. In United States
Civil Service Commission, et al. v. National Association of Letter
Carriers AFL-CIO, et al. 53 and Broadrick, et al. v. State of Oklahoma, et
al., 54 the United States Supreme Court was faced with the issue of
whether statutory provisions prohibiting federal 55 and
state 56 employees from taking an active part in political management
or in political campaigns were unconstitutional as to warrant facial
invalidation. Violation of these provisions results in dismissal from
employment and possible criminal sanctions.
The Court declared these provisions compliant with the equal
protection clause. It held that (i) in regulating the speech of its
employees, the state as employer has interests that differ significantly
from those it possesses in regulating the speech of the citizenry in
general; (ii) the courts must therefore balance the legitimate interest
of employee free expression against the interests of the employer in
promoting efficiency of public services; (iii) if the employees'
expression interferes with the maintenance of efficient and regularly
functioning services, the limitation on speech is not unconstitutional;
and (iv) the Legislature is to be given some flexibility or latitude in
ascertaining which positions are to be covered by any statutory
restrictions. 57 Therefore, insofar as government employees are
concerned, the correct standard of review is an interest-balancing
approach, a means-end scrutiny that examines the closeness of fit
between the governmental interests and the prohibitions in
question. 58
Letter Carriers elucidated on these principles, as follows:
Until now, the judgment of Congress, the Executive, and the
country appears to have been that partisan political activities by
federal employees must be limited if the Government is to operate
effectively and fairly, elections are to play their proper part in
representative government, and employees themselves are to be
sufficiently free from improper influences. The restrictions so far
imposed on federal employees are not aimed at particular parties,
groups, or points of view, but apply equally to all partisan activities
of the type described. They discriminate against no racial, ethnic,
or religious minorities. Nor do they seek to control political
opinions or beliefs, or to interfere with or influence anyone's vote
at the polls.
But, as the Court held in Pickering v. Board of
Education, 59 the government has an interest in regulating the
conduct and 'the speech of its employees that differ(s)
significantly from those it possesses in connection with regulation
of the speech of the citizenry in general. The problem in any case
is to arrive at a balance between the interests of the (employee),
as a citizen, in commenting upon matters of public concern and
the interest of the (government), as an employer, in promoting the
efficiency of the public services it performs through its
employees.' Although Congress is free to strike a different balance
than it has, if it so chooses, we think the balance it has so far
struck is sustainable by the obviously important interests sought
to be served by the limitations on partisan political activities now
contained in the Hatch Act. HTSIEa

It seems fundamental in the first place that employees in the

Executive Branch of the Government, or those working for any of
its agencies, should administer the law in accordance with the will
of Congress, rather than in accordance with their own or the will
of a political party. They are expected to enforce the law and
execute the programs of the Government without bias or
favoritism for or against any political party or group or the
members thereof. A major thesis of the Hatch Act is that to serve
this great end of Government — the impartial execution of the laws
— it is essential that federal employees, for example, not take
formal positions in political parties, not undertake to play
substantial roles in partisan political campaigns, and not run for
office on partisan political tickets. Forbidding activities like these
will reduce the hazards to fair and effective government.
There is another consideration in this judgment: it is not only
important that the Government and its employees in fact avoid
practicing political justice, but it is also critical that they appear
to the public to be avoiding it, if confidence in the system of
representative Government is not to be eroded to a disastrous
extent.
Another major concern of the restriction against partisan
activities by federal employees was perhaps the immediate
occasion for enactment of the Hatch Act in 1939. That was the
conviction that the rapidly expanding Government work force
should not be employed to build a powerful, invincible, and
perhaps corrupt political machine. The experience of the 1936 and
1938 campaigns convinced Congress that these dangers were
sufficiently real that substantial barriers should be raised against
the party in power — or the party out of power, for that matter —
using the thousands or hundreds of thousands of federal
employees, paid for at public expense, to man its political
structure and political campaigns. HIDCTA

A related concern, and this remains as important as any

other, was to further serve the goal that employment and
advancement in the Government service not depend on political
performance, and at the same time to make sure that Government
employees would be free from pressure and from express or tacit
invitation to vote in a certain way or perform political chores in
order to curry favor with their superiors rather than to act out their
own beliefs. It may be urged that prohibitions against coercion are
sufficient protection; but for many years the joint judgment of the
Executive and Congress has been that to protect the rights of
federal employees with respect to their jobs and their political acts
and beliefs it is not enough merely to forbid one employee to
attempt to influence or coerce another. For example, at the
hearings in 1972 on proposed legislation for liberalizing the
prohibition against political activity, the Chairman of the Civil
Service Commission stated that 'the prohibitions against active
participation in partisan political management and partisan
political campaigns constitute the most significant safeguards
against coercion . . ..' Perhaps Congress at some time will come to
a different view of the realities of political life and Government
service; but that is its current view of the matter, and we are not
now in any position to dispute it. Nor, in our view, does
the Constitution forbid it.
Neither the right to associate nor the right to participate in
political activities is absolute in any event. 60 . . .
 xxx xxx xxx
As we see it, our task is not to destroy the Act if we can, but
to construe it, if consistent with the will of Congress, so as to
comport with constitutional limitations.(italics supplied)
Broadrick likewise definitively stated that the assailed statutory
provision is constitutionally permissible, viz.:
Appellants do not question Oklahoma's right to place even-
handed restrictions on the partisan political conduct of state
employees. Appellants freely concede that such restrictions serve
valid and important state interests, particularly with respect to
attracting greater numbers of qualified people by insuring their job
security, free from the vicissitudes of the elective process, and by
protecting them from 'political extortion.' Rather, appellants
maintain that however permissible, even commendable, the goals
of s 818 may be, its language is unconstitutionally vague and its
prohibitions too broad in their sweep, failing to distinguish between
conduct that may be proscribed and conduct that must be
permitted. For these and other reasons, appellants assert that the
sixth and seventh paragraphs of s 818 are void in toto and cannot
be enforced against them or anyone else.
We have held today that the Hatch Act is not impermissibly
vague. 61 We have little doubt that s 818 is similarly not so vague
that 'men of common intelligence must necessarily guess at its
meaning.' 62 Whatever other problems there are with s 818, it is all
but frivolous to suggest that the section fails to give adequate
warning of what activities it proscribes or fails to set out 'explicit
standards' for those who must apply it. In the plainest language, it
prohibits any state classified employee from being 'an officer or
member' of a 'partisan political club' or a candidate for 'any paid
public office.' It forbids solicitation of contributions 'for any
political organization, candidacy or other political purpose' and
taking part 'in the management or affairs of any political party or in
any political campaign.' Words inevitably contain germs of
uncertainty and, as with the Hatch Act, there may be disputes over
the meaning of such terms in s 818 as 'partisan,' or 'take part in,'
or 'affairs of' political parties. But what was said in Letter
Carriers, is applicable here: 'there are limitations in the English
language with respect to being both specific and manageably brief,
and it seems to us that although the prohibitions may not satisfy
those intent on finding fault at any cost, they are set out in terms
that the ordinary person exercising ordinary common sense can
sufficiently understand and comply with, without sacrifice to the
public interest.' . . .
IAEcCT

xxx xxx xxx

 [Appellants] nevertheless maintain that the statute is
overbroad and purports to reach protected, as well as unprotected
conduct, and must therefore be struck down on its face and held to
be incapable of any constitutional application. We do not believe
that the overbreadth doctrine may appropriately be invoked in this
manner here.
xxx xxx xxx
The consequence of our departure from traditional rules of
standing in the First Amendment area is that any enforcement of a
statute thus placed at issue is totally forbidden until and unless a
limiting construction or partial invalidation so narrows it as to
remove the seeming threat or deterrence to constitutionally
protected expression. Application of the overbreadth doctrine in
this manner is, manifestly, strong medicine. It has been employed
by the Court sparingly and only as a last resort. . . .
. . . But the plain import of our cases is, at the very least, that
facial over-breadth adjudication is an exception to our traditional
rules of practice and that its function, a limited one at the outset,
attenuates as the otherwise unprotected behavior that it forbids
the State to sanction moves from 'pure speech' toward conductand
that conduct-even if expressive-falls within the scope of otherwise
valid criminal laws that reflect legitimate state interests in
maintaining comprehensive controls over harmful, constitutionally
unprotected conduct. Although such laws, if too broadly worded,
may deter protected speech to some unknown extent, there comes
a point where that effect-at best a prediction-cannot, with
confidence, justify invalidating a statute on its face and so
prohibiting a State from enforcing the statute against conduct that
is admittedly within its power to proscribe. To put the matter
another way, particularly where conduct and not merely speech is
involved, we believe that the overbreadth of a statute must not
only be real, but substantial as well, judged in relation to the
statute's plainly legitimate sweep. It is our view that s 818 is not
substantially overbroad and that whatever overbreadth may exist
should be cured through case-by-case analysis of the fact
situations to which its sanctions, assertedly, may not be applied.
Unlike ordinary breach-of-the peace statutes or other broad
regulatory acts, s 818 is directed, by its terms, at political
expression which if engaged in by private persons would plainly be
protected by the First and Fourteenth Amendments. But at the
same time, s 818 is not a censorial statute, directed at particular
groups or viewpoints. The statute, rather, seeks to regulate
political activity in an even-handed and neutral manner. As
indicted, such statutes have in the past been subject to a less
exacting overbreadth scrutiny. Moreover, the fact remains that s
818 regulates a substantial spectrum of conduct that is as
 manifestly subject to state regulation as the public peace or
criminal trespass. This much was established in United Public
Workers v. Mitchell, and has been unhesitatingly reaffirmed today
in Letter Carriers. Under the decision in Letter Carriers, there is no
question that s 818 is valid at least insofar as it forbids classified
employees from: soliciting contributions for partisan candidates,
political parties, or other partisan political purposes; becoming
members of national, state, or local committees of political
parties, or officers or committee members in partisan political
clubs, or candidates for any paid public office; taking part in the
management or affairs of any political party's partisan political
campaign; serving as delegates or alternates to caucuses or
conventions of political parties; addressing or taking an active part
in partisan political rallies or meetings; soliciting votes or
assisting voters at the polls or helping in a partisan effort to get
voters to the polls; participating in the distribution of partisan
campaign literature; initiating or circulating partisan nominating
petitions; or riding in caravans for any political party or partisan
political candidate.HAIaEc

. . . It may be that such restrictions are impermissible and

that s 818 may be susceptible of some other improper
applications. But, as presently construed, we do not believe that s
818 must be discarded in toto because some persons' arguably
protected conduct may or may not be caught or chilled by the
statute. Section 818 is not substantially overbroad and it not,
therefore, unconstitutional on its face. (italics supplied)
It bears stressing that, in his Dissenting Opinion, Mr. Justice
Nachura does not deny the principles enunciated in Letter
Carriers and Broadrick. He would hold, nonetheless, that these cases
cannot be interpreted to mean a reversal of Mancuso, since they
"pertain to different types of laws and were decided based on a
different set of facts," viz.:
In Letter Carriers, the plaintiffs alleged that the Civil Service
Commission was enforcing, or threatening to enforce, the Hatch
Act's prohibition against "active participation in political
management or political campaigns." The plaintiffs desired to
campaign for candidates for public office, to encourage and get
federal employees to run for state and local offices, to participate
as delegates in party conventions, and to hold office in a political
club.
In Broadrick, the appellants sought the invalidation for being
vague and overbroad a provision in the (sic) Oklahoma's Merit
System of Personnel Administration Act restricting the political
activities of the State's classified civil servants, in much the same
manner as the Hatch Act proscribed partisan political activities of
federal employees. Prior to the commencement of the action, the
 appellants actively participated in the 1970 reelection campaign of
their superior, and were administratively charged for asking other
Corporation Commission employees to do campaign work or to give
referrals to persons who might help in the campaign, for soliciting
money for the campaign, and for receiving and distributing
campaign posters in bulk.
Mancuso, on the other hand, involves, as aforesaid, an
automatic resignation provision. Kenneth Mancuso, a full time
police officer and classified civil service employee of the City of
Cranston, filed as a candidate for nomination as representative to
the Rhode Island General Assembly. The Mayor of Cranston then
began the process of enforcing the resign-to-run provision of the
City Home Rule Charter.
Clearly, as the above-cited US cases pertain to different
types of laws and were decided based on a different set of
facts, Letter Carriers and Broadrick cannot be interpreted to mean
a reversal of Mancuso. . . . (italics in the original)
We hold, however, that his position is belied by a plain reading of
these cases. Contrary to his claim, Letter Carriers, Broadrick and
Mancuso all concerned the constitutionality of resign-to-run laws, viz.:
(1) Mancuso involved a civil service employee who filed as a
candidate for nomination as representative to the Rhode
Island General Assembly. He assailed the constitutionality of
§14.09 (c) of the City Home Rule Charter, which
prohibits "continuing in the classified service of the city
after becoming a candidate for nomination or election to any
public office."
(2) Letter Carriers involved plaintiffs who alleged that the Civil
Service Commission was enforcing, or threatening to enforce,
the Hatch Act's prohibition against "active participation in
political management or political campaigns" 63 with respect
to certain defined activities in which they desired to engage.
The plaintiffs relevant to this discussion are:
THEcAS

(a) The National Association of Letter Carriers, which alleged

that its members were desirous of, among others,
running in local elections for offices such as school
board member, city council member or mayor;
(b) Plaintiff Gee, who alleged that he desired to, but did not,
file as a candidate for the office of Borough Councilman
in his local community for fear that his participation in a
partisan election would endanger his job; and
(c) Plaintiff Myers, who alleged that he desired to run as a
Republican candidate in the 1971 partisan election for
the mayor of West Lafayette, Indiana, and that he would
 do so except for fear of losing his job by reason of
violation of the Hatch Act.
The Hatch Act defines "active participation in political
management or political campaigns" by cross-referring to the
rules made by the Civil Service Commission. The rule
pertinent to our inquiry states:
30. Candidacy for local office: Candidacy for a
nomination or for election to any National, State,
county, or municipal office is not permissible.The
prohibition against political activity extends not merely
to formal announcement of candidacy but also to the
preliminaries leading to such announcement and to
canvassing or soliciting support or doing or permitting
to be done any act in furtherance of candidacy. The fact
that candidacy, is merely passive is immaterial; if an
employee acquiesces in the efforts of friends in
furtherance of such candidacy such acquiescence
constitutes an infraction of the prohibitions against
political activity. (italics supplied)
Section 9 (b) requires the immediate removal of violators and
forbids the use of appropriated funds thereafter to pay
compensation to these persons. 64
(3) Broadrick was a class action brought by certain Oklahoma
state employees seeking a declaration of unconstitutionality
of two sub-paragraphs of Section 818 of Oklahoma's Merit
System of Personnel Administration Act. Section 818 (7), the
paragraph relevant to this discussion, states that "[n]o
employee in the classified service shall be . . . a candidate
for nomination or election to any paid public
office . . ." Violation of Section 818 results in dismissal from
employment, possible criminal sanctions and limited state
employment ineligibility.
Consequently, it cannot be denied that Letter
Carriers and Broadrick effectively overruled Mancuso. By no stretch of
the imagination could Mancuso still be held operative, as Letter
Carriers and Broadrick (i) concerned virtually identical resign-to-run
laws, and (ii) were decided by a superior court, the United States
Supreme Court. It was thus not surprising for the First Circuit Court of
Appeals — the same court that decided Mancuso — to
hold categorically and emphaticallyin Magill v. Lynch 65 that Mancuso
is no longer good law. As we priorly explained:
Magill involved Pawtucket, Rhode Island firemen who ran for
city office in 1975. Pawtucket's "Little Hatch Act" prohibits city
employees from engaging in a broad range of political activities.
Becoming a candidate for any city office is specifically
proscribed, 66 the violation being punished by removal from office
or immediate dismissal. The firemen brought an action against the
city officials on the ground that that the provision of the city
charter was unconstitutional. However, the court, fully cognizant
of Letter Carriers and Broadrick, took the position
that Mancuso had since lost considerable vitality. It observed that
the view that political candidacy was a fundamental interest which
could be infringed upon only if less restrictive alternatives were
not available, was a position which was no longer viable, since the
Supreme Court (finding that the government's interest in regulating
both the conduct and speech of its employees differed significantly
from its interest in regulating those of the citizenry in general) had
given little weight to the argument that prohibitions against the
coercion of government employees were a less drastic means to
the same end, deferring to the judgment of Congress, and applying
a "balancing" test to determine whether limits on political activity
by public employees substantially served government interests
which were "important" enough to outweigh the employees' First
Amendment rights. 67 aIcCTA

It must be noted that the Court of Appeals ruled in this

manner even though the election in Magill was characterized
as nonpartisan, as it was reasonable for the city to fear, under the
circumstances of that case, that politically active bureaucrats
might use their official power to help political friends and hurt
political foes. Ruled the court:
The question before us is whether Pawtucket's charter
provision, which bars a city employee's candidacy in even a
nonpartisan city election, is constitutional. The issue
compels us to extrapolate two recent Supreme Court
decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter
Carriers and Broadrick v. Oklahoma. Both dealt with laws
barring civil servants from partisan political activity. Letter
Carriers reaffirmed United Public Workers v.
Mitchell, upholding the constitutionality of the Hatch Act as
to federal employees. Broadrick sustained Oklahoma's "Little
Hatch Act" against constitutional attack, limiting its holding
to Oklahoma's construction that the Act barred only activity
in partisan politics. In Mancuso v. Taft, we assumed that
proscriptions of candidacy in nonpartisan elections would
not be constitutional. Letter Carriers and Broadrick compel
new analysis.
xxx xxx xxx
What we are obligated to do in this case, as the district
court recognized, is to apply the Court's interest balancing
approach to the kind of nonpartisan election revealed in this
record. We believe that the district court found more residual
 vigor in our opinion in Mancuso v. Taft than remains after
Letter Carriers. We have particular reference to our view that
political candidacy was a fundamental interest which could
be trenched upon only if less restrictive alternatives were
not available. While this approach may still be viable for
citizens who are not government employees, the Court in
Letter Carriers recognized that the government's interest in
regulating both the conduct and speech of its employees
differs significantly from its interest in regulating those of
the citizenry in general. Not only was United Public Workers
v. Mitchell "unhesitatingly" reaffirmed, but the Court gave
little weight to the argument that prohibitions against the
coercion of government employees were a less drastic means
to the same end, deferring to the judgment of the Congress.
We cannot be more precise than the Third Circuit in
characterizing the Court's approach as "some sort of
'balancing' process". 68 It appears that the government may
place limits on campaigning by public employees if the limits
substantially serve government interests that are "important"
enough to outweigh the employees' First Amendment
rights. . . . (italics supplied)
Upholding thus the constitutionality of the law in question,
the Magill court detailed the major governmental interests
discussed in Letter Carriers and applied them to the Pawtucket
provision as follows:
In Letter Carriers[,] the first interest identified by the
Court was that of an efficient government, faithful to the
Congress rather than to party. The district court discounted
this interest, reasoning that candidates in a local election
would not likely be committed to a state or national platform.
This observation undoubtedly has substance insofar as
allegiance to broad policy positions is concerned. But a
different kind of possible political intrusion into efficient
administration could be thought to threaten municipal
government: not into broad policy decisions, but into the
particulars of administration favoritism in minute decisions
affecting welfare, tax assessments, municipal contracts and
purchasing, hiring, zoning, licensing, and inspections. Just as
the Court in Letter Carriers identified a second governmental
interest in the avoidance of the appearance of "political
justice" as to policy, so there is an equivalent interest in
avoiding the appearance of political preferment in privileges,
concessions, and benefits. The appearance (or reality) of
favoritism that the charter's authors evidently feared is not
exorcised by the nonpartisan character of the formal election
process. Where, as here, party support is a key to successful
campaigning, and party rivalry is the norm, the city might
reasonably fear that politically active bureaucrats would use
their official power to help political friends and hurt political
foes. This is not to say that the city's interest in visibly fair
and effective administration necessarily justifies a blanket
prohibition of all employee campaigning; if parties are not
heavily involved in a campaign, the danger of favoritism is
less, for neither friend nor foe is as easily identified.
CScaDH

A second major governmental interest identified

in Letter Carriers was avoiding the danger of a powerful
political machine. The Court had in mind the large and
growing federal bureaucracy and its partisan potential. The
district court felt this was only a minor threat since parties
had no control over nominations. But in fact candidates
sought party endorsements, and party endorsements proved
to be highly effective both in determining who would emerge
from the primary election and who would be elected in the
final election. Under the prevailing customs, known party
affiliation and support were highly significant factors in
Pawtucket elections. The charter's authors might reasonably
have feared that a politically active public work force would
give the incumbent party, and the incumbent workers, an
unbreakable grasp on the reins of power. In municipal
elections especially, the small size of the electorate and the
limited powers of local government may inhibit the growth of
interest groups powerful enough to outbalance the weight of
a partisan work force. Even when nonpartisan issues and
candidacies are at stake, isolated government employees
may seek to influence voters or their co-workers improperly;
but a more real danger is that a central party structure will
mass the scattered powers of government workers behind a
single party platform or slate. Occasional misuse of the
public trust to pursue private political ends is tolerable,
especially because the political views of individual
employees may balance each other out. But party discipline
eliminates this diversity and tends to make abuse
systematic. Instead of a handful of employees pressured into
advancing their immediate superior's political ambitions, the
entire government work force may be expected to turn out for
many candidates in every election. In Pawtucket, where
parties are a continuing presence in political campaigns, a
carefully orchestrated use of city employees in support of the
incumbent party's candidates is possible. The danger is
scarcely lessened by the openness of Pawtucket's
nominating procedure or the lack of party labels on its
ballots.
The third area of proper governmental interest in Letter
Carriers was ensuring that employees achieve advancement
 on their merits and that they be free from both coercion and
the prospect of favor from political activity. The district court
did not address this factor, but looked only to the possibility
of a civil servant using his position to influence voters, and
held this to be no more of a threat than in the most
nonpartisan of elections. But we think that the possibility of
coercion of employees by superiors remains as strong a
factor in municipal elections as it was in Letter
Carriers. Once again, it is the systematic and coordinated
exploitation of public servants for political ends that a
legislature is most likely to see as the primary threat of
employees' rights. Political oppression of public employees
will be rare in an entirely nonpartisan system. Some
superiors may be inclined to ride herd on the politics of their
employees even in a nonpartisan context, but without party
officials looking over their shoulders most supervisors will
prefer to let employees go their own ways.
In short, the government may constitutionally restrict
its employees' participation in nominally nonpartisan
elections if political parties play a large role in the
campaigns. In the absence of substantial party involvement,
on the other hand, the interests identified by the Letter
Carriers Court lose much of their force. While the employees'
First Amendment rights would normally outbalance these
diminished interests, we do not suggest that they would
always do so. Even when parties are absent, many employee
campaigns might be thought to endanger at least one strong
public interest, an interest that looms larger in the context of
municipal elections than it does in the national elections
considered in Letter Carriers. The city could reasonably fear
the prospect of a subordinate running directly against his
superior or running for a position that confers great power
over his superior. An employee of a federal agency who seeks
a Congressional seat poses less of a direct challenge to the
command and discipline of his agency than a fireman or
policeman who runs for mayor or city council. The
possibilities of internal discussion, cliques, and political
bargaining, should an employee gather substantial political
support, are considerable. (citations omitted) TEaADS

The court, however, remanded the case to the district court

for further proceedings in respect of the petitioners' overbreadth
charge. Noting that invalidating a statute for being overbroad is
"not to be taken lightly, much less to be taken in the dark," the
court held:
The governing case is Broadrick, which introduced the
doctrine of "substantial" overbreadth in a closely analogous
case. Under Broadrick, when one who challenges a law has
engaged in constitutionally unprotected conduct (rather than
unprotected speech) and when the challenged law is aimed
at unprotected conduct, "the overbreadth of a statute must
not only be real, but substantial as well, judged in relation to
the statute's plainly legitimate sweep." Two major
uncertainties attend the doctrine: how to distinguish speech
from conduct, and how to define "substantial" overbreadth.
We are spared the first inquiry byBroadrick itself. The
plaintiffs in that case had solicited support for a candidate,
and they were subject to discipline under a law proscribing a
wide range of activities, including soliciting contributions for
political candidates and becoming a candidate. The Court
found that this combination required a substantial
overbreadth approach. The facts of this case are so similar
that we may reach the same result without worrying unduly
about the sometimes opaque distinction between speech and
conduct.
The second difficulty is not so easily disposed of.
Broadrick found no substantial overbreadth in a statute
restricting partisan campaigning. Pawtucket has gone
further, banning participation in nonpartisan campaigns as
well. Measuring the substantiality of a statute's overbreadth
apparently requires, inter alia, a rough balancing of the
number of valid applications compared to the number of
potentially invalid applications. Some sensitivity to reality is
needed; an invalid application that is far-fetched does not
deserve as much weight as one that is probable. The
question is a matter of degree; it will never be possible to
say that a ratio of one invalid to nine valid applications
makes a law substantially overbroad. Still, an overbreadth
challenger has a duty to provide the court with some idea of
the number of potentially invalid applications the statute
permits. Often, simply reading the statute in the light of
common experience or litigated cases will suggest a number
of probable invalid applications. But this case is different.
Whether the statute is overbroad depends in large part on the
number of elections that are insulated from party rivalry yet
closed to Pawtucket employees. For all the record shows,
every one of the city, state, or federal elections in Pawtucket
is actively contested by political parties. Certainly the record
suggests that parties play a major role even in campaigns
that often are entirely nonpartisan in other cities. School
committee candidates, for example, are endorsed by the local
Democratic committee.
The state of the record does not permit us to find
overbreadth; indeed such a step is not to be taken lightly,
much less to be taken in the dark. On the other hand, the
 entire focus below, in the short period before the election
was held, was on the constitutionality of the statute as
applied. Plaintiffs may very well feel that further efforts are
not justified, but they should be afforded the opportunity to
demonstrate that the charter forecloses access to a
significant number of offices, the candidacy for which by
municipal employees would not pose the possible threats to
government efficiency and integrity which Letter Carriers, as
we have interpreted it, deems significant. Accordingly, we
remand for consideration of plaintiffs' overbreadth claim.
(italics supplied, citations omitted)
Clearly, Letter Carriers, Broadrick, and Magill demonstrate
beyond doubt that Mancuso v. Taft, heavily relied upon by
the ponencia, has effectively been overruled. 69 As it is no longer
good law, the ponencia's exhortation that "[since] the Americans,
from whom we copied the provision in question, had already
stricken down a similar measure for being unconstitutional[,] it is
high-time that we, too, should follow suit" is misplaced and
unwarranted. 70
Accordingly, our assailed Decision's submission that the right to
run for public office is "inextricably linked" with two fundamental
freedoms — those of expression and association — lies on barren
ground. American case law has in fact never recognized a fundamental
right to express one's political views through candidacy, 71 as to
invoke a rigorous standard of review. 72 Bart v. Telford 73 pointedly
stated that "[t]he First Amendment does not in terms confer a right to
run for public office, and this court has held that it does not do so by
implication either." Thus, one's interest in seeking office, by
itself, is not entitled to constitutional protection. 74 Moreover, one
cannot bring one's action under the rubric of freedom of association,
absent any allegation that, by running for an elective position, one is
advancing the political ideas of a particular set of voters. 75 HTSAEa

Prescinding from these premises, it is crystal clear that the

provisions challenged in the case at bar, are not violative of the equal
protection clause. The deemed-resigned provisions substantially serve
governmental interests (i.e., (i) efficient civil service faithful to the
government and the people rather than to party; (ii) avoidance of the
appearance of "political justice" as to policy; (iii) avoidance of the
danger of a powerful political machine; and (iv) ensuring that
employees achieve advancement on their merits and that they be free
from both coercion and the prospect of favor from political activity).
These are interests that are important enough to outweigh the non-
fundamental right of appointive officials and employees to seek
elective office.
 En passant, we find it quite ironic that Mr. Justice Nachura
cites Clements v. Fashing 76 and Morial, et al. v. Judiciary Commission
of the State of Louisiana,et al. 77 to buttress his dissent. Maintaining
that resign-to-run provisions are valid only when made applicable to
specified officials, he explains:
. . . U.S. courts, in subsequent cases, sustained the
constitutionality of resign-to-run provisions when applied
to specified or particular officials, as distinguished from all
others, 78 under a classification that is germane to the purposes of
the law. These resign-to-run legislations were not expressed in a
general and sweeping provision, and thus did not violate the test of
being germane to the purpose of the law, the second requisite for a
valid classification. Directed, as they were, to particular officials,
they were not overly encompassing as to be overbroad. (emphasis
in the original)
This reading is a regrettable misrepresentation
of Clements and Morial. The resign-to-run provisions in these cases
were upheld not because they referred to specified or particular
officials (vis-à-vis a general class); the questioned provisions were
found valid precisely because the Court deferred to legislative
judgment and found that a regulation is not devoid of a rational
predicate simply because it happens to be incomplete. In fact, the
equal protection challenge inClements revolved around the claim that
the State of Texas failed to explain why some public officials are
subject to the resign-to-run provisions, while others are not. Ruled the
United States Supreme Court:
Article XVI, § 65, of the Texas Constitution provides that the
holders of certain offices automatically resign their positions if
they become candidates for any other elected office, unless the
unexpired portion of the current term is one year or less. The
burdens that § 65 imposes on candidacy are even less substantial
than those imposed by § 19. The two provisions, of course, serve
essentially the same state interests. The District Court found § 65
deficient, however, not because of the nature or extent of the
provision's restriction on candidacy, but because of the manner in
which the offices are classified. According to the District Court,
the classification system cannot survive equal protection scrutiny,
because Texas has failed to explain sufficiently why some elected
public officials are subject to § 65 and why others are not. As with
the case of § 19, we conclude that § 65 survives a challenge under
the Equal Protection Clause unless appellees can show that there
is no rational predicate to the classification scheme. TcSICH

The history behind § 65 shows that it may be upheld

consistent with the "one step at a time" approach that this Court
has undertaken with regard to state regulation not subject to more
 vigorous scrutiny than that sanctioned by the traditional
principles. Section 65 was enacted in 1954 as a transitional
provision applying only to the 1954 election. Section 65 extended
the terms of those offices enumerated in the provision from two to
four years. The provision also staggered the terms of other offices
so that at least some county and local offices would be contested
at each election. The automatic resignation proviso to § 65 was
not added until 1958. In that year, a similar automatic resignation
provision was added in Art. XI, § 11, which applies to officeholders
in home rule cities who serve terms longer than two years. Section
11 allows home rule cities the option of extending the terms of
municipal offices from two to up to four years.
Thus, the automatic resignation provision in Texas is a
creature of the State's electoral reforms of 1958. That the State
did not go further in applying the automatic resignation provision
to those officeholders whose terms were not extended by § 11 or §
65, absent an invidious purpose, is not the sort of malfunctioning
of the State's lawmaking process forbidden by the Equal
Protection Clause. A regulation is not devoid of a rational
predicate simply because it happens to be incomplete. The Equal
Protection Clause does not forbid Texas to restrict one elected
officeholder's candidacy for another elected office unless and until
it places similar restrictions on other officeholders. The provision's
language and its history belie any notion that § 65 serves the
invidious purpose of denying access to the political process to
identifiable classes of potential candidates. (citations omitted and
italics supplied)
Furthermore, it is unfortunate that the dissenters took
the Morial line that "there is no blanket approval of restrictions on the
right of public employees to become candidates for public office" out
of context. A correct reading of that line readily shows that the Court
only meant to confine its ruling to the facts of that case, as each equal
protection challenge would necessarily have to involve weighing
governmental interests vis-à-vis the specific prohibition assailed. The
Court held:
The interests of public employees in free expression and
political association are unquestionably entitled to the protection
of the first and fourteenth amendments. Nothing in today's
decision should be taken to imply that public employees may be
prohibited from expressing their private views on controversial
topics in a manner that does not interfere with the proper
performance of their public duties. In today's decision, there is no
blanket approval of restrictions on the right of public employees to
become candidates for public office. Nor do we approve any
general restrictions on the political and civil rights of judges in
particular. Our holding is necessarily narrowed by the methodology
 employed to reach it. A requirement that a state judge resign his
office prior to becoming a candidate for non-judicial office bears a
reasonably necessary relation to the achievement of the state's
interest in preventing the actuality or appearance of judicial
impropriety. Such a requirement offends neither the first
amendment's guarantees of free expression and association nor
the fourteenth amendment's guarantee of equal protection of the
laws. (italics supplied)
cTCEIS

Indeed, the Morial court even quoted Broadrick and stated that:
In any event, the legislature must have some leeway in
determining which of its employment positions require restrictions
on partisan political activities and which may be left unregulated.
And a State can hardly be faulted for attempting to limit the
positions upon which such restrictions are placed. (citations
omitted)
V.
Section 4(a) of Resolution 8678, Section 13 of RA 9369,
and Section 66 of the Omnibus Election Code
Do Not Suffer from Overbreadth
Apart from nullifying Section 4 (a) of Resolution 8678, Section 13
of RA 9369, and Section 66 of the Omnibus Election Code on equal
protection ground, our assailed Decision struck them down for being
overbroad in two respects, viz.:
(1) The assailed provisions limit the candidacy of all civil
servants holding appointive posts without due regard for
the type of position being held by the employee seeking
an elective post and the degree of influence that may be
attendant thereto; 79 and
(2) The assailed provisions limit the candidacy of any and all
civil servants holding appointive positions without due
regard for the type of office being sought, whether it be
partisan or nonpartisan in character, or in the national,
municipal or barangay level.
Again, on second look, we have to revise our assailed Decision.
i. Limitation on Candidacy Regardless of
Incumbent Appointive Official's Position, Valid
According to the assailed Decision, the challenged provisions of
law are overly broad because they apply indiscriminately to all civil
servants holding appointive posts, without due regard for the type of
position being held by the employee running for elective office and the
degree of influence that may be attendant thereto.
 Its underlying assumption appears to be that the evils sought to
be prevented are extant only when the incumbent appointive official
running for elective office holds an influential post.
Such a myopic view obviously fails to consider a different, yet
equally plausible, threat to the government posed by the partisan
potential of a large and growing bureaucracy: the danger of systematic
abuse perpetuated by a "powerful political machine" that has amassed
"the scattered powers of government workers" so as to give itself and
its incumbent workers an "unbreakable grasp on the reins of
power." 80 As elucidated in our prior exposition: 81 EHTSCD

Attempts by government employees to wield influence over

others or to make use of their respective positions (apparently) to
promote their own candidacy may seem tolerable — even
innocuous — particularly when viewed in isolation from other
similar attempts by other government employees. Yet it would be
decidedly foolhardy to discount the equally (if not more) realistic
and dangerous possibility that such seemingly disjointed attempts,
when taken together, constitute a veiled effort on the part of an
emerging central party structure to advance its own agenda
through a "carefully orchestrated use of [appointive and/or
elective] officials" coming from various levels of the bureaucracy.
. . . [T]he avoidance of such a "politically active public work
force" which could give an emerging political machine an
"unbreakable grasp on the reins of power" is reason enough to
impose a restriction on the candidacies of all appointive public
officials without further distinction as to the type of positions
being held by such employees or the degree of influence that may
be attendant thereto. (citations omitted)
ii. Limitation on Candidacy
Regardless of Type of Office Sought, Valid
The assailed Decision also held that the challenged provisions of
law are overly broad because they are made to apply indiscriminately
to all civil servants holding appointive offices, without due regard for
the type of elective office being sought, whether it be partisan or
nonpartisan in character, or in the national, municipal
or barangay level.
This erroneous ruling is premised on the assumption that "the
concerns of a truly partisan office and the temptations it fosters are
sufficiently different from those involved in an office removed from
regular party politics [so as] to warrant distinctive treatment," 82 so
that restrictions on candidacy akin to those imposed by the
challenged provisions can validly apply only to situations in which the
elective office sought is partisan in character. To the extent, therefore,
that such restrictions are said to preclude even candidacies for
nonpartisan elective offices, the challenged restrictions are to be
considered as overbroad.
Again, a careful study of the challenged provisions and related
laws on the matter will show that the alleged overbreadth is more
apparent than real. Our exposition on this issue has not been
repudiated, viz.:
A perusal of Resolution 8678 will immediately disclose that
the rules and guidelines set forth therein refer to the filing of
certificates of candidacy and nomination of official candidates of
registered political parties, in connection with the May 10, 2010
National and Local Elections. 83 Obviously, these rules and
guidelines, including the restriction in Section 4(a) of Resolution
8678, were issued specifically for purposes of the May 10, 2010
National and Local Elections, which, it must be noted, are
decidedly partisan in character. Thus, it is clear that the restriction
in Section 4(a) of RA 8678 applies only to the candidacies of
appointive officials vying forpartisan elective posts in the May 10,
2010 National and Local Elections. On this score, the overbreadth
challenge leveled against Section 4 (a) is clearly unsustainable. aIcDCH

Similarly, a considered review of Section 13 of RA 9369 and

Section 66 of the Omnibus Election Code, in conjunction with other
related laws on the matter, will confirm that these provisions are
likewise not intended to apply to elections for nonpartisan public
offices.
The only elections which are relevant to the present inquiry
are the elections for barangay offices, since these are the only
elections in this country which involvenonpartisan public offices. 84
In this regard, it is well to note that from as far back as the
enactment of the Omnibus Election Code in 1985, Congress has
intended that these nonpartisan barangay elections be governed by
special rules, including a separate rule on deemed resignations
which is found in Section 39 of the Omnibus Election Code. Said
provision states:
Section 39. Certificate of Candidacy. — No person shall
be elected punong barangay or kagawad ng sangguniang
barangay unless he files a sworn certificate of candidacy in
triplicate on any day from the commencement of the election
period but not later than the day before the beginning of the
campaign period in a form to be prescribed by the
Commission. The candidate shall state the barangay office
for which he is a candidate.
xxx xxx xxx
 Any elective or appointive municipal, city, provincial or
national official or employee, or those in the civil or military
service, including those in government-owned or-controlled
corporations, shall be considered automatically resigned
upon the filing of certificate of candidacy for a barangay
office.
Since barangay elections are governed by a separate deemed
resignation rule, under the present state of law, there would be no
occasion to apply the restriction on candidacy found in Section 66
of the Omnibus Election Code, and later reiterated in the proviso of
Section 13 of RA 9369, to any election other than a partisan one.
For this reason, the overbreadth challenge raised against Section
66 of the Omnibus Election Code and the pertinent proviso in
Section 13 of RA 9369 must also fail. 85
In any event, even if we were to assume, for the sake of
argument, that Section 66 of the Omnibus Election Code and the
corresponding provision in Section 13 of RA 9369 are general rules
that apply also to elections for nonpartisan public offices, the
overbreadth challenge would still be futile. Again, we explained:
In the first place, the view that Congress is limited to
controlling only partisan behavior has not received judicial
imprimatur, because the general proposition of the relevant US
cases on the matter is simply that the government has an interest
in regulating the conduct and speech of its employees that differs
significantly from those it possesses in connection with regulation
of the speech of the citizenry in general. 86
Moreover, in order to have a statute declared as
unconstitutional or void on its face for being overly broad,
particularly where, as in this case, "conduct" and not "pure
speech" is involved, the overbreadth must not only be real, but
substantial as well, judged in relation to the statute's plainly
legitimate sweep. 87 DaTEIc

In operational terms, measuring the substantiality of a

statute's overbreadth would entail, among other things, a rough
balancing of the number of valid applications compared to the
number of potentially invalid applications. 88 In this regard, some
sensitivity to reality is needed; an invalid application that is far-
fetched does not deserve as much weight as one that is
probable. 89 The question is a matter of degree. 90 Thus, assuming
for the sake of argument that the partisan-nonpartisan distinction
is valid and necessary such that a statute which fails to make this
distinction is susceptible to an overbreadth attack, the
overbreadth challenge presently mounted must demonstrate or
provide this Court with some idea of the number of potentially
invalid elections (i.e., the number of elections that were insulated
 from party rivalry but were nevertheless closed to appointive
employees) that may in all probability result from the enforcement
of the statute. 91
The state of the record, however, does not permit us to find
overbreadth. Borrowing from the words of Magill v. Lynch, indeed,
such a step is not to be taken lightly, much less to be taken in the
dark, 92 especially since an overbreadth finding in this case would
effectively prohibit the State from 'enforcing an otherwise valid
measure against conduct that is admittedly within its power to
proscribe.' 93
This Court would do well to proceed with tiptoe caution,
particularly when it comes to the application of the overbreadth
doctrine in the analysis of statutes that purportedly attempt to restrict
or burden the exercise of the right to freedom of speech, for such
approach is manifestly strong medicine that must be used sparingly,
and only as a last resort. 94EcIaTA

In the United States, claims of facial overbreadth have been

entertained only where, in the judgment of the court, the possibility
that protected speech of others may be muted and perceived
grievances left to fester (due to the possible inhibitory effects of
overly broad statutes) outweighs the possible harm to society in
allowing some unprotected speech or conduct to go
unpunished. 95 Facial overbreadth has likewise not been invoked where
a limiting construction could be placed on the challenged statute, and
where there are readily apparent constructions that would cure, or at
least substantially reduce, the alleged overbreadth of the statute. 96
In the case at bar, the probable harm to society in permitting
incumbent appointive officials to remain in office, even as they
actively pursue elective posts, far outweighs the less likely evil of
having arguably protected candidacies blocked by the possible
inhibitory effect of a potentially overly broad statute.
In this light, the conceivably impermissible applications of the
challenged statutes — which are, at best, bold predictions — cannot
justify invalidating these statutes in toto and prohibiting the State
from enforcing them against conduct that is, and has for more than
100 years been, unquestionably within its power and interest to
proscribe. 97 Instead, the more prudent approach would be to deal with
these conceivably impermissible applications through case-by-case
adjudication rather than through a total invalidation of the statute
itself. 98
Indeed, the anomalies spawned by our assailed Decision have
taken place. In his Motion for Reconsideration, intervenor Drilon stated
that a number of high-ranking Cabinet members had already filed their
 Certificates of Candidacy without relinquishing their posts. 99 Several
COMELEC election officers had likewise filed their Certificates of
Candidacy in their respective provinces. 100 Even the Secretary of
Justice had filed her certificate of substitution for representative of
the first district of Quezon province last December 14, 2009 101 — even
as her position as Justice Secretary includes supervision over the City
and Provincial Prosecutors, 102who, in turn, act as Vice-Chairmen of
the respective Boards of Canvassers. 103 The Judiciary has not been
spared, for a Regional Trial Court Judge in the South has thrown his
hat into the political arena. We cannot allow the tilting of our electoral
playing field in their favor.
For the foregoing reasons, we now rule that Section 4 (a) of
Resolution 8678 and Section 13 of RA 9369, which merely reiterate
Section 66 of the Omnibus Election Code, are not unconstitutionally
overbroad.
IN VIEW WHEREOF, the Court RESOLVES to GRANT the
respondent's and the intervenors' Motions for Reconsideration;
REVERSE and SET ASIDE this Court's December 1, 2009 Decision;
DISMISS the Petition; and ISSUE this Resolution declaring as not
UNCONSTITUTIONAL (1) Section 4 (a) of COMELEC Resolution No.
8678, (2) the second proviso in the third paragraph of Section 13
of Republic Act No. 9369, and (3) Section 66 of the Omnibus Election
Code. IDCHTE

SO ORDERED.
(Quinto v. Commission on Elections, G.R. No. 189698 (Resolution),
|||

[February 22, 2010], 627 PHIL 193-283)

 [G.R. No. 192935. December 7, 2010.]

LOUIS "BAROK" C. BIRAOGO, petitioner, vs. THE PHILIPPINE

TRUTH COMMISSION OF 2010, respondent.

[G.R. No. 193036. December 7, 2010.]

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 : p

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. Laurel 1

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 Constitution 6 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. ITESAc

To transform his campaign slogan into reality, President Aquino

found a need for a special body to investigate reported cases of graft
and corruption allegedly committed during the previous
administration.
Thus, at the dawn of his administration, the President on July 30,
2010, signed Executive Order No. 1 establishing the Philippine Truth
Commission of 2010 (Truth Commission). Pertinent provisions of said
executive order read:
EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of
the Philippines solemnly enshrines the principle that a public
office is a public trust and mandates that public officers and
employees, who are servants of the people, must at all times be
accountable to the latter, serve them with utmost responsibility,
integrity, loyalty and efficiency, act with patriotism and justice,
and lead modest lives;
WHEREAS, corruption is among the most despicable acts of
defiance of this principle and notorious violation of this mandate;
WHEREAS, corruption is an evil and scourge which seriously
affects the political, economic, and social life of a nation; in a very
special way it inflicts untold misfortune and misery on the poor,
the marginalized and underprivileged sector of society;
WHEREAS, corruption in the Philippines has reached very
alarming levels, and undermined the people's trust and confidence
in the Government and its institutions;
WHEREAS, there is an urgent call for the determination of the
truth regarding certain reports of large scale graft and corruption
in the government and to put a closure to them by the filing of the
appropriate cases against those involved, if warranted, and to
deter others from committing the evil, restore the people's faith
and confidence in the Government and in their public servants;
WHEREAS, the President's battlecry during his campaign for
the Presidency in the last elections "kung walang corrupt, walang
mahirap" expresses a solemn pledge that if elected, he would end
corruption and the evil it breeds;
WHEREAS, there is a need for a separate body dedicated
solely to investigating and finding out the truth concerning the
reported cases of graft and corruption during the previous
administration, and which will recommend the prosecution of the
offenders and secure justice for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive
Order No. 292, otherwise known as the Revised Administrative
Code of the Philippines, gives the President the continuing
authority to reorganize the Office of the President. cTIESa

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; TacADE

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. — . . . .
SECTION 4. Detail of Employees. — . . . .
SECTION 5. Engagement of Experts. — . . .
SECTION 6. Conduct of Proceedings. — . . . .
SECTION 7. Right to Counsel of Witnesses/Resource
Persons. — . . . .
SECTION 8. Protection of Witnesses/Resource
Persons. — . . . .
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. — . . . . .
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. aDSAEI

SECTION 12. Office. — . . . .

SECTION 13. Furniture/Equipment. — . . . .
SECTION 14. Term of the Commission. — The Commission
shall accomplish its mission on or before December 31, 2012.
SECTION 15. Publication of Final Report. — . . . .
SECTION 16. Transfer of Records and Facilities of the
Commission. — . . . .
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. cADaIH

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 writer 12 puts it:
The order ruled out reconciliation. It translated the Draconian
code spelled out by Aquino in his inaugural speech: "To those who
talk about reconciliation, if they mean that they would like us to
simply forget about the wrongs that they have committed in the
past, we have this to say: There can be no reconciliation without
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.cAaTED

(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. 1416 16 (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. DIAcTE

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 AIHDcC

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
inPhilippine 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. Arroyo 24 explained the deep-seated rules on locus
standi. Thus:ACcHIa

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 cDAITS

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 Meralco 29 are 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. 30Undoubtedly, 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 presumed 32 since there is no
provision in the Constitution or any specific law that authorizes the
President to create a truth commission. 33 He adds that Section 31 of
the Administrative Code of 1987, granting the President the continuing
authority to reorganize his office, cannot serve as basis for the
creation of a truth commission considering the aforesaid provision
merely uses verbs such as "reorganize," "transfer," "consolidate,"
"merge," and "abolish." 34 Insofar as it vests in the President the
plenary power to reorganize the Office of the President to the extent of
creating a public office, Section 31 is inconsistent with the principle
of separation of powers enshrined in the Constitution and must be
deemed repealed upon the effectivity thereof. 35
Similarly, in G.R. No. 193036, petitioners-legislators argue that
the creation of a public office lies within the province of Congress and
not with the executive branch of government. They maintain that the
delegated authority of the President to reorganize under Section 31 of
the Revised Administrative Code: 1) does not permit the President to
create a public office, much less a truth commission; 2) is limited to
the reorganization of the administrative structure of the Office of the
President; 3) is limited to the restructuring of the internal organs of
the Office of the President Proper, transfer of functions and transfer of
agencies; and 4) only to achieve simplicity, economy and
efficiency. 36 Such continuing authority of the President to reorganize
his office is limited, and by issuing Executive Order No. 1, the
President overstepped the limits of this delegated authority. HCEaDI

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 purposes 42 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 aSIAHC

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.
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, becamefunctus 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.cHSIDa

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
. . . . 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. . . . .
cSATEH

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. caAICE

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: . . .
to subject to an official probe . . . : 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; . . . 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 court case) on the merits of
issues raised: . . . to pass judgment on: settle judicially: . . . act as
judge." And "adjudge" means "to decide or rule upon as a judge or
 with judicial or quasi-judicial powers: . . . to award or grant
judicially in a case of controversy . . . ."
HScaCT

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. . . . . 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 similarlyauthorized 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] AIHDcC

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 cEaDTA

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, aremore 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' committee to investigate all the facts and
circumstances surrounding "Philippine Centennial projects" of his
predecessor, former President Fidel V. Ramos. 73[Emphases
supplied]TcHEaI

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." 84cSICHD
 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' Union 85 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" 87only. 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] HIaSDc

In this regard, it must be borne in mind that the Arroyo

administration is but just a member of a class, that is, a class of past
administrations. It is not a class of its own. Not to include past
administrations similarly situated constitutes arbitrariness which the
equal protection clause cannot sanction. Such discriminating
differentiation clearly reverberates to label the commission as a
vehicle for vindictiveness and selective retribution.
Though the OSG enumerates several differences between the
Arroyo administration and other past administrations, these
distinctions are not substantial enough to merit the restriction of the
investigation to the "previous administration" only. The reports of
widespread corruption in the Arroyo administration cannot be taken as
basis for distinguishing said administration from earlier
administrations which were also blemished by similar widespread
reports of impropriety. They are not inherent in, and do not inure solely
to, the Arroyo administration. As Justice Isagani Cruz put it,
"Superficial differences do not make for a valid classification." 88
The public needs to be enlightened why Executive Order No. 1
chooses to limit the scope of the intended investigation to the
previous administration only. The OSG ventures to opine that "to
include other past administrations, at this point, may unnecessarily
overburden the commission and lead it to lose its effectiveness." 89 The
reason given is specious. It is without doubt irrelevant to the
legitimate and noble objective of the PTC to stamp out or "end
corruption and the evil it breeds."90
The probability that there would be difficulty in unearthing
evidence or that the earlier reports involving the earlier
administrations were already inquired into is beside the point.
Obviously, deceased presidents and cases which have already
prescribed can no longer be the subjects of inquiry by the PTC. Neither
is the PTC expected to conduct simultaneous investigations of
previous administrations, given the body's limited time and resources.
"The law does not require the impossible" (Lex non cogit ad
impossibilia). 91
Given the foregoing physical and legal impossibility, the Court
logically recognizes the unfeasibility of investigating almost a
century's worth of graft cases. However, the fact remains that
Executive Order No. 1 suffers from arbitrary classification. The PTC, to
be true to its mandate of searching for the truth, must not exclude the
other past administrations. The PTC must, at least, have the authority
to investigate all past administrations. While reasonable
prioritization is permitted, it should not be arbitrary lest it be struck
down for being unconstitutional. In the often quoted language of Yick
Wo v. Hopkins, 92
Though the law itself be fair on its face and impartial in
appearance, yet, if applied and administered by public authority
with an evil eye and an unequal hand, so as practically to make
unjust and illegal discriminations between persons in similar
circumstances, material to their rights, the denial of equal justice
is still within the prohibition of the constitution. [Emphasis
supplied]
It could be argued that considering that the PTC is an ad
hoc body, its scope is limited. The Court, however, is of the considered
view that although its focus is restricted, the constitutional guarantee
of equal protection under the laws should not in any way be
circumvented. The Constitution is the fundamental and paramount law
of the nation to which all other laws must conform and in accordance
with which all private rights determined and all public authority
administered.93 Laws that do not conform to the Constitution should
be stricken down for being unconstitutional. 94 While the thrust of the
PTC is specific, that is, for investigation of acts of graft and
corruption, Executive Order No. 1, to survive, must be read together
with the provisions of the Constitution. To exclude the earlier
administrations in the guise of "substantial distinctions" would only
confirm the petitioners' lament that the subject executive order is only
an "adventure in partisan hostility." In the case of US v. Cyprian, 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 TaDAIS

The Court is not unaware that "mere underinclusiveness is not

fatal to the validity of a law under the equal protection
clause." 98 "Legislation is not unconstitutional merely because it is not
all-embracing and does not include all the evils within its reach." 99 It
has been written that a regulation challenged under the equal
protection clause is not devoid of a rational predicate simply because
it happens to be incomplete. 100 In several instances, the
underinclusiveness was not considered a valid reason to strike down a
law or regulation where the purpose can be attained in future
legislations or regulations. These cases refer to the "step by step"
process. 101 "With regard to equal protection claims, a legislature does
not run the risk of losing the entire remedial scheme simply because it
fails, through inadvertence or otherwise, to cover every evil that might
conceivably have been attacked." 102
In Executive Order No. 1, however, there is no inadvertence. That
the previous administration was picked out was deliberate and
intentional as can be gleaned from the fact that it was underscored at
least three times in the assailed executive order. It must be noted that
Executive Order No. 1 does not even mention any particular act, event
or report to be focused on unlike the investigative commissions
created in the past. "The equal protection clause is violated by
purposeful and intentional discrimination." 103
To disprove petitioners' contention that there is deliberate
discrimination, the OSG clarifies that the commission does not only
confine itself to cases of large scale graft and corruption committed
during the previous administration. 104 The OSG points to Section 17 of
Executive Order No. 1, which provides:
SECTION 17. Special Provision Concerning Mandate. — If and
when in the judgment of the President there is a need to expand
the mandate of the Commission as defined in Section 1 hereof to
include the investigation of cases and instances of graft and
corruption during the prior administrations, such mandate may be
so extended accordingly by way of a supplemental Executive
Order.
The Court is not convinced. Although Section 17 allows the
President the discretion to expand the scope of investigations of the
PTC so as to include the acts of graft and corruption committed in
other past administrations, it does not guarantee that they would be
covered in the future. Such expanded mandate of the commission will
still depend on the whim and caprice of the President. If he would
decide not to include them, the section would then be meaningless.
This will only fortify the fears of the petitioners that the Executive
Order No. 1 was "crafted to tailor-fit the prosecution of officials and
personalities of the Arroyo administration."105
The Court tried to seek guidance from the pronouncement in the
case of Virata v. Sandiganbayan, 106 that the "PCGG Charter (composed
of Executive Orders Nos. 1, 2 and 14) does not violate the equal
protection clause." The decision, however, was devoid of any
discussion on how such conclusory statement was arrived at, the
principal issue in said case being only the sufficiency of a cause of
action.
A final word
The issue that seems to take center stage at present is —
whether or not the Supreme Court, in the exercise of its
constitutionally mandated power of Judicial Review with respect to
recent initiatives of the legislature and the executive department, is
exercising undue interference. Is the Highest Tribunal, which is
expected to be the protector of the Constitution, itself guilty of
violating fundamental tenets like the doctrine of separation of powers?
Time and again, this issue has been addressed by the Court, but it
seems that the present political situation calls for it to once again
explain the legal basis of its action lest it continually be accused of
being a hindrance to the nation's thrust to progress.
The Philippine Supreme Court, according to Article VIII, Section 1
of the 1987 Constitution, is vested with Judicial Power that "includes
the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave of abuse of
discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the government." SECHIA

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.
SO ORDERED.
(Biraogo v. Philippine Truth Commission of 2010, G.R. Nos. 192935 &
|||

193036, [December 7, 2010], 651 PHIL 374-773)

 [G.R. No. 95367. May 23, 1995.]

COMMISSIONER JOSE T. ALMONTE, VILLAMOR C. PEREZ,

NERIO ROGADO, and ELISA
RIVERA, petitioners, vs. HONORABLE CONRADO M. VASQUEZ
and CONCERNED CITIZENS, respondents.

Valmonte Law Offices for petitioner.

The Solicitor General for respondents.

SYLLABUS

1. POLITICAL LAW; GOVERNMENT; PRIVILEGE AGAINST

DISCLOSURE OF STATE SECRETS; BASIS. — At common law a
governmental privilege against disclosure is recognized with respect to
state secrets bearing on military, diplomatic and similar matters. This
privilege is based upon public interest of such paramount importance as
in and of itself transcending the individual interests of a private citizen,
even though, as a consequence thereof, the plaintiff cannot enforce his
legal rights.
2. CONSTITUTIONAL LAW; PRESIDENT; CONFIDENTIALITY OF HIS
CONVERSATION AND CORRESPONDENCE. — In the litigation over the
Watergate tape subpoena in 1973, the U.S. Supreme Court recognized the
right of the President to the confidentiality of his conversations and
correspondence, which it likened to "the claim of confidentiality of
judicial deliberations." Said the "Court in United States v. Nixon: The
expectation of a President to the confidentiality of his conversations and
correspondence, like the claim of confidentiality of judicial deliberations,
for example, has all the values to which we accord deference for the
privacy of all citizens and, added to those values, is the necessity for
protection of the public interest in candid, objective, and even blunt or
harsh opinions in Presidential decision-making. A President and those
who assist him must be free to explore alternatives in the process of
shaping policies and making decisions and to do so in a way many would
be unwilling to express except privately. These are the considerations
justifying a presumptive privilege for Presidential communications. The
privilege is fundamental to the operation of the government and
inextricably rooted in the separation of powers under the Constitution. . .
Thus, the Court for the first time gave executive privilege a constitutional
status and a new name, although not necessarily a new birth.
3. ID.; JUDICIARY; CONFIDENTIALITY OF JUDICIAL DELIBERATIONS.
— "The confidentiality of judicial deliberations" mentioned in the opinion
of the Court referred to the fact that Justices of the U.S. Supreme Court
and judges of lower federal courts have traditionally treated their
working papers and judicial notes as private property. A 1977 proposal in
the U.S. Congress that Justices and judges of lower federal courts
"should be encouraged to make such arrangements as will assure the
preservation and eventual availability of their personal papers, especially
the deposit of their papers in the same depository they select for [their]
Public Papers" was rebuffed by the Justices who, in a letter to the
Chairman of the Subcommittee on Regulation and Government
Information of the U.S. Senate, referred to "difficult concerns respecting
the appropriate separation that must be maintained between the
legislative branch and this Court.
4. POLITICAL LAW; GOVERNMENT; PRIVILEGE AGAINST
DISCLOSURE OF STATE SECRETS; RULE. — With respect to the privilege
based on state secret, the rule was stated by the U.S. Supreme Court as
follows: Judicial control over the evidence in a case cannot be abdicated
to the caprice of executive officers. Yet we will not go so far as to say
that the court may automatically require a complete disclosure to the
judge before the claim of privilege will be accepted in any case. It may
be possible to satisfy the court, from all the circumstances of the case,
that there is a reasonable danger that compulsion of the evidence will
expose military matters which, in the interest of national security, should
not be divulged. When this is the case, the occasion for the privilege is
appropriate, and the court should not jeopardize the security which the
privilege is meant to protect by insisting upon an examination of the
evidence, even by the judge alone, in chambers. . . In each case, the
showing of necessity which is made will determine how far the court
should probe in satisfying itself that the occasion for invoking the
privilege is appropriate. Where there is a strong showing of necessity,
the claim of privilege should not be lightly accepted, but even the most
compelling necessity cannot overcome the claim of privilege if the court
is ultimately satisfied that military secrets are at stake. A fortiori, where
necessity is dubious, a formal claim of privilege, made under the
circumstances of this case, will have to prevail. On the other hand, where
the claim of confidentiality does not rest on the need to protect military,
diplomatic or other national security secrets but on a general public
interest in the confidentiality of his conversations, courts have declined
to find in the Constitution an absolute privilege of the President against
a subpoena considered essential to the enforcement of criminal laws.
 5. ID.; ID.; ID.; PRODUCTION OF PERSONNEL RECORDS OF EIIB
DOES NOT INVOLVE REVELATION OF MILITARY SECRETS. — In the case
at bar, there is no claim that military or diplomatic secrets will be
disclosed by the production of records pertaining to the personnel of the
EIIB. Indeed, EIIB's function is the gathering and evaluation of
intelligence reports and information regarding "illegal activities affecting
the national economy, such as, but not limited to, economic sabotage,
smuggling, tax evasion, dollar salting." Consequently, while in cases
which involve state secrets it may be sufficient to determine from the
circumstances of the case that there is reasonable danger that
compulsion of the evidence will expose military matters without
compelling production, no similar excuse can be made for a privilege
resting on other considerations.
6. ID.; ID.; ID.; PERSONNEL RECORDS OF EIIB, NOT CLASSIFIED
INFORMATION. — Nor has our attention been called to any law or
regulation which considers personnel records of the EIIB as classified
information. To the contrary, COA Circular No. 88-293, which petitioners
invoke to support their contention that there is adequate safeguard
against misuse of public funds, provides that the " only item of
expenditure which should be treated strictly confidential" is that which
refers to the "purchase of information and payment of rewards." It should
be noted that the regulation requires that "reasonable records" be kept
justifying the confidential or privileged character of the information
relating to informers. There are no such reasonable records in this case
to substitute for the records claimed to be confidential.
7. ID.; ID.; ID.; DENIAL BY OFFICIALS OF THE EIIB THAT THERE WERE
SAVINGS FROM CERTAIN ITEMS AND THAT DBM HAD RELEASED
ALLOCATION NEEDED FOR 947 PERSONNEL, IN EFFECT INVITED
INQUIRY INTO VERACITY OF CLAIM. — The other statutes and
regulations invoked by petitioners in support of their contention that the
documents sought in the subpoena duces tecum of the Ombudsman are
classified merely indicate the confidential nature of the EIIB's functions,
but they do not exempt the EIIB from the duty to account for its funds to
the proper authorities. Indeed by denying that there were savings made
from certain items in the agency and alleging that the DBM had released
to the EIIB only the allocations needed for the 947 personnel retained
after its reorganization, petitioners in effect invited inquiry into the
veracity of their claim. If, as petitioners claim, the subpoenaed records
have been examined by the COA and found by it to be regular in all
respects, there is no reason why they cannot be shown to another
agency of the government which by constitutional mandate is required to
look into any complaint concerning public office.
 8. CONSTITUTIONAL LAW; OFFICE OF THE OMBUDSMAN; REQUIRED
TO ACT PROMPTLY ON COMPLAINTS IN ANY FORM OR MANNER. — On
the other hand, the Ombudsman is investigating a complaint that several
items in the EIIB were filled by fictitious persons and that the allotments
for these items in 1988 were used for illegal purposes. The plantilla and
other personnel records are relevant to his investigation. He and his
Deputies are designated by the Constitution "protectors of the people"
and as such they are required by it "to act promptly on complaints in any
form or manner against public officials or employees of the Government,
or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporation."
9. ID.; ID.; ID.; SAFEGUARD IN THE PRODUCTION OF
PRESUMPTIVELY PRIVILEGED SUBPOENAED DOCUMENTS. — Even if the
subpoenaed documents are treated as presumptively privileged, this
decision would only justify ordering their inspection in camera but not
their non-production. However, as concession to the nature of the
functions of the EIIB and just to be sure no information of a confidential
character is disclosed, the examination of records in this case should be
made in strict confidence by the Ombudsman himself. Reference may be
made to the documents in any decision or order which the Ombudsman
may render or issue but only to the extent that it will not reveal covert
activities of the agency. Above all, there must be a scrupulous protection
of the documents delivered. With these safeguards outlined, it is believed
that a satisfactory resolution of the conflicting claims of the parties is
achieved. It is not amiss to state that even matters of national security
have been inquired into in appropriate in camera proceedings by the
courts. We see no reason why similar safeguards cannot be made to
enable an agency of the Government, like the Office of the Ombudsman,
to carry out its constitutional duty to protect public interests while
insuring the confidentiality of classified documents.
10. ID.; ID.; ID.; COMPLAINT NEED NOT BE SIGNED AND VERIFIED. —
Petitioners contend that under Art. XI, §13(4) the Ombudsman can act
only "in any appropriate case, and subject to such limitations as may be
provided by law" and that because the complaint in this case is unsigned
and unverified, the case is not an appropriate one. This contention lacks
merit. As already stated, the Constitution expressly enjoins the
Ombudsman to act on any complaint filed "in any form or manner"
concerning official acts or omissions. Thus, Art. XI, 12 provides: The
Ombudsman and his Deputies, as protectors of the people, shall act
promptly on complaints filed in any form or manner against public
officials or employees of the Government, or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled
corporations and shall in appropriate cases, notify the complainants of
the action taken and the result thereof. Similarly, the Ombudsman Act of
1989 (Rep. Act No. 6770) provides in 26(2): The Office of the Ombudsman
shall receive complaints from any source in whatever form
concerning an official act or omission . . .
11. ID.; ID.; LIMITATION ON POWER TO INVESTIGATE. — Rather than
referring to the form of complaints, therefore, the phrase "in an
appropriate case" in Art. XI, §12 means any case concerning official act
or omission which is alleged to be "illegal, unjust, improper, or inefficient.
"The phrase "subject to such limitations as may be provided by law"
refers to such limitations as may be provided by Congress or, in the
absence thereof, to such limitation as may be imposed by the courts.
Such limitations may well include a requirement that the investigation be
conducted in camera, with the public excluded, as exception to the
general nature of the proceedings in the Office of the Ombudsman. A
reconciliation is thereby made between the demands of national security
and the requirement of accountability enshrined in the Constitution.
12. ID.; BILL OF RIGHTS EQUAL PROTECTION OF THE LAWS; NOT
DENIED TO RESPONDENTS WHERE OMBUDSMAN COMMENCED
INVESTIGATION ON THE BASIS OF UNVERIFIED COMPLAINT; CASE AT
BAR. — Nor is there violation of petitioners' right to the equal protection
of the laws. Petitioners complain that "in all forum and tribunals . . . the
aggrieved parties . . . can only hale respondents via their verified
complaints or sworn statements with their identities fully disclosed,"
while in proceedings before the Office of the Ombudsman anonymous
letters suffice to start an investigation. In the first place, there can be no
objection to this procedure because it is provided in the Constitution
itself. In the second place, it is apparent that in permitting the filing of
complaints "in any form or manner," the framers of the Constitution took
into account the well-known reticence of the people which keep them
from complaining against official wrongdoings. As this Court had
occasion to point out, the Office of the Ombudsman is different from the
other investigatory and prosecutory agencies of the government because
those subject to its jurisdiction are public officials who, through official
pressure and influence, can quash, delay or dismiss investigations held
against them. On the other hand complainants are more often than not
poor and simple folk who cannot afford to hire lawyers.
13. ID.; ID.; RIGHT AGAINST SELF-INCRIMINATION; NOT AVAILABLE
WHERE DOCUMENTS REQUIRED TO BE PRODUCED ARE PUBLIC. — It is
contended that the issuance of the subpoena duces tecum would violate
petitioners' right against self-incrimination. It is enough to state that the
documents required to be produced in this case are public records and
those to whom the subpoena duces tecum is directed are government
officials in whose possession or custody the documents are. Moreover, if,
as petitioners claim the disbursement by the EIIB of funds for personal
service has already been cleared by the COA, there is no reason why
they should object to the examination of the documents by respondent
Ombudsman.
KAPUNAN, J., dissenting opinion:
1. POLITICAL LAW; GOVERNMENT; PRIVILEGE AGAINST
DISCLOSURE OF STATE SECRETS; EIIB CAN NOT BE REQUIRED TO
DISCLOSE DOCUMENTS BY THE OMBUDSMAN IN ASCERTAINING
PROPER DISBURSEMENT OF ITS FUNDS. — Disclosure of the documents
as required by the Ombudsman would necessarily defeat the legal
mandate of the EIIB as the intelligence arm of the executive branch of
government relating to matters affecting the economy of the nation. As
such, EIIB's functions are related to matters affecting national security.
In the performance of its function in relation with the gathering of
intelligence information executive privilege could as well be invoked by
the EIIB, especially in relation to its covert operations. The
confidentiality privilege invoked by petitioners attaches in the exercise
of the functions of the EIIB, as presidential immunity is bestowed by
reason of the political functions of the Chief Executive, as a separate and
co-equal branch of government. By the same parity of reasoning, the
disclosure of the EIIB documents required to be examined by the
Ombudsman even in camera proceedings, will under the pretext of
ascertaining the proper disbursements of the EIIB funds will
unnecessarily impair the performance by the EIIB of its functions
especially those affecting national security. Besides, the determination
of the legality of EIIB's disbursements of funds allocated to it are
properly within the competence of the Commission on Audit, which as
the ponencia of Justice Mendoza finds, has been cleared in audit. The
Commission on Audit had adopted, as in the past, measures to protect
"classified information" pertaining to examination of expenditures of
intelligence agencies. In the present case, disclosure of information
to any other agency would unnecessarily expose the covert operations of
EIIB, as a government agency charged with national security functions.
2. ID.; DETERMINATION OF A QUESTION AFFECTING NATIONAL
SECURITY, A POLITICAL QUESTION. — The determination, by the
executive branch, through its appropriate agencies, of a question as
affecting the national security is a policy decision for which this Court
has neither the competence nor the mandate to infringe upon. In the
absence of a clear showing a grave abuse of discretion on the part of the
Executive, acting through its (national security) agencies, I am of the
opinion that we cannot interfere with a determination, properly made, on
a question affecting economic security lest we are prepared to ride
roughshod over certain prerogatives of our political branches. In an area
obviously affecting the national security, disclosure of confidential
information on the promptings of some dissatisfied employees would
potentially disturb a number of carefully laid-out operations dependent
on secrecy and I am not prepared to do this. The characterization of the
documents as classified information is not a shield for wrongdoing but a
barrier against the burdensome requests for information which
necessarily interfere with the proper performance of their duties. To give
in, at every turn, to such requests would be greatly disruptive of
governmental functions. More so in this case, since expenditures of the
EIIB for personal funds had already been previously examined and
passed upon in audit by the' Commission on Audit. There has been no
allegation of any irregularity in the COA's earlier examination, and in the
absence of substantiated allegations, the previous determination ought
to be accorded our respect unless we want to encourage unnecessary
and tiresome forays and investigations into government activities which
would not only end up nowhere but which would also disrupt or derail
such activities.
3. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO
INFORMATION ON MATTERS OF PUBLIC CONCERN; NOT ABSOLUTE;
ACCESS TO OFFICIAL RECORDS MAY BE REGULATED. — The
constitutional right allowing disclosure of governmental documents, i.e.,
the right to information on matters of public concern is not absolute.
While access to official records may be prohibited, it may be regulated.
Regulation includes appropriate authority to determine what documents
are of public concern, the manner of access to information contained in
such documents and to withhold information under certain
circumstances, particularly, as in this case, those circumstances
affecting the national security.

DECISION

MENDOZA, J : p

This is a petition for certiorari, prohibition, and mandamus to

annul the subpoena duces tecum and orders issued by respondent
Ombudsman, requiring petitioners Nerio Rogado and Elisa Rivera, as
chief accountant and record custodian, respectively, of the Economic
Intelligence and Investigation Bureau (EIIB) to produce "all documents
relating to Personal Services Funds for the year 1988 and all evidence
such as vouchers (salary) for the whole plantilla of EIIB for 1988" and
to enjoin him from enforcing his orders.
 Petitioner Jose T. Almonte was formerly Commissioner of the
EIIB, while Villamor C. Perez is Chief of the EIIB's Budget and Fiscal
Management Division. The subpoena duces tecum was issued by the
Ombudsman in connection with his investigation of an anonymous
letter alleging that funds representing savings from unfilled positions
in the EIIB had been illegally disbursed. The letter, purporting to have
been written by an employee of the EIIB and a concerned citizen, was
addressed to the Secretary of Finance, with copies furnished several
government offices, including the Office of the Ombudsman. LibLex

The letter reads in pertinent parts:

1. These are the things that I have been observing. During the
implementation of E.O 127 on May 1, 1988, one hundred
ninety (190) personnel were dismissed. Before that
implementation, we had a monthly savings of P500,000.00
from unfilled plantilla position plus the implementation of RA
6683 wherein seventy (70) regular employees availed a total
amount of P1,400,000.00 was saved from the government
monthly. The question is, how do they use or disburse this
savings? The EIIB has a syndicate headed by the Chief of
Budget Division who is manipulating funds and also the brain
of the so called "ghost agents" or the "Emergency
Intelligence Agents" (EIA). The Commissioner of EIIB has a
biggest share on this. Among his activities are:
a) Supporting RAM wherein he is involved. He gives big
amount especially during Dec. Failed coup.
b) Payment for thirty five (35) mini UZI's.
c) Payment for the purchase of Maxima '87 for personal use
of the Commissioner.
d) Another observation was the agents under the Director of
NCR EIIB is the sole operating unit within Metro Manila
which was approved by no less than the Commissioner
due to anomalous activities of almost all agents
assigned at the central office directly under the
Commissioner. Retired Brig. Gen. Almonte as one of the
Anti-Graft board member of the Department of Finance
should not tolerate this. However, the Commissioner did
not investigate his own men instead, he placed them
under the 15-30 payroll.
e) Many more which are personal.
2. Sir, my question is this. Can your good office investigate EII
intelligence funds particularly Personal Services (01) Funds?
I wonder why the Dep't. of Budget & Mgmt. cannot compel
EIIB to submit an actual filled up position because almost
half of it are vacant and still they are releasing it. Are EIIB
 plantilla position classified? It is included in the Personal
Services Itemization (PSI) and I believe it is not classified
and a ruling from Civil Service Commission that EIIB is not
exempted from Civil Service. Another info, when we had
salary differential last Oct '88 all money for the whole
plantilla were released and from that alone, Millions were
saved and converted to ghost agents of EIA.
3. Another thing that I have observed was the Chief Budget
Division possesses high caliber firearms such as a mini UZI,
Armalite rifle and two (2) 45 cal. pistol issued to him by the
Assistant Commissioner wherein he is not an agent of EIIB
and authorized as such according to Memorandum Order
Number 283 signed by the President of the Republic of the
Philippines effective 9 Jan. 1990.
Another observation was when EIIB agents apprehended a
certain civilian who possesses numerous assorted high
powered firearms. Agents plus one personnel from the legal
proclaimed only five (5) firearms and the remaining was
pilfered by them.
Another observation is almost all EIIB agents collects payroll
from the big time smuggler syndicate monthly and brokers
every week for them not to be apprehended.
Another observation is the commissioner allocates funds
coming from the intelligence funds to the media to sustain
their good image of the bureau.
In his comment 1 on the letter-complaint, petitioner Almonte
denied that as a result of the separation of personnel, the EIIB had
made some savings. He averred that the only funds released to his
agency by the Department of Budget and Management (DBM) were
those corresponding to 947 plantilla positions which were filled. He
also denied that there were "ghost agents" in the EIIB and claimed
that disbursements for "open" (i.e., "overt" personnel) and "closed"
(i.e., "covert" personnel) plantillas of the agency had been cleared by
the Commission on Audit (COA); that the case of the 30 Uzis had
already been investigated by Congress, where it was shown that it was
not the EIIB but an agent who had spent for the firearms and they
were only loaned to the EIIB pending appropriation by Congress; that,
contrary to the charge that a Maxima car had been purchased for his
use, he was using a government issued car from the NICA; that it was
his prerogative as Commissioner to "ground" agents in the EIIB main
office so that they could be given reorientation and retraining; that the
allegation that the EIIB operatives pilfered smuggled firearms was
without factual basis because the firearms were the subject of seizure
proceedings before the Collector of Customs, Port of Manila; that the
EIIB had been uncompromising toward employees found involved in
anomalous activities; and that intelligence funds had not been used
for media propaganda and if media people went to the EIIB it was
because of newsworthy stories. Petitioner asked that the complaint be
dismissed and the case considered closed. prLL

Similarly petitioner Perez, budget chief of the EIIB, denied in his

comment 2 dated April 3, 1990 that savings had been realized from the
implementation of E.O. No. 127, since the DBM provided allocations for
only the remaining 947 personnel. He said that the disbursement of
funds for the plantilla positions for "overt" and "covert" personnel had
been cleared by the COA and that the high-powered firearms had been
issued for the protection of EIIB personnel attending court hearings
and the Finance Officer in withdrawing funds from the banks.
The Graft Investigation Officer of the Ombudsman's office, Jose F.
Saño, found the comments unsatisfactory, being "unverified and plying
only on generalizations without meeting specifically the points raised
by complainant as constitutive of the alleged anomalies." 3 He,
therefore, asked for authority to conduct a preliminary investigation.
Anticipating the grant of his request, he issued a subpoena 4 to
petitioners Almonte and Perez, requiring them to submit their counter-
affidavits and the affidavits of their witnesses, as well as a
subpoena duces tecum 5 to the Chief of the EIIB's Accounting Division
ordering him to bring "all documents relating to Personal Services
Funds for the year 1988 and all evidence, such as vouchers (salary) for
the whole plantilla of EIIB for 1988."
Petitioners Almonte and Perez moved to quash the subpoena and
the subpoena duces tecum. In his Order dated June 15,
1990, 6 respondent Ombudsman granted the motion to quash the
subpoena in view of the fact that there were no affidavits filed against
petitioners. But he denied their motion to quash the subpoena duces
tecum. He ruled that petitioners were not being forced to produce
evidence against themselves, since the subpoena duces tecum was
directed to the Chief Accountant, petitioner Nerio Rogado. In addition
the Ombudsman ordered the Chief of the Records Section of the EIIB,
petitioner Elisa Rivera, to produce before the investigator "all
documents relating to Personnel Service Funds, for the year 1988, and
all documents, salary vouchers for the whole plantilla of the EIIB for
1988, within ten (10) days from receipt hereof."
Petitioners Almonte and Perez moved for a reconsideration,
arguing that Rogado and Rivera were EIIB employees under their
supervision and that the Ombudsman was doing indirectly what he
could not do directly, i.e., compelling them (petitioners Almonte and
Perez) to produce evidence against themselves.
 Petitioners' motion was denied in respondent Ombudsman's order
dated, August 6, 1990. Hence, this petition which questions the orders
of June 15, 1990 and August 6, 1990 of respondent Ombudsman.
To put this case in perspective it should be stated at the outset
that it does not concern a demand by a citizen for information under
the freedom of information guarantee of the Constitution. 7 Rather it
concerns the power of the Office of the Ombudsman to obtain
evidence in connection with an investigation conducted by it vis-a-vis
the claim of privilege of an agency of the Government. Thus
petitioners raise the following issues: 8
I. WHETHER OR NOT A CASE BROUGHT ABOUT BY AN UNSIGNED
AND UNVERIFIED LETTER COMPLAINT IS AN "APPROPRIATE
CASE" WITHIN THE CONCEPT OF THE CONSTITUTION IN
WHICH PUBLIC RESPONDENT CAN OBLIGE PETITIONERS BY
VIRTUE OF HIS SUBPOENA DUCES TECUM TO PRODUCE TO
HIM "ALL DOCUMENTS RELATING TO PERSONAL SERVICES
FUNDS FOR THE YEAR 1988 AND ALL EVIDENCES, SUCH AS
VOUCHERS (SALARY) FOR THE WHOLE PLANTILLA OF EIIB
FOR 1988."
II. WHETHER OR NOT "ALL DOCUMENTS RELATING TO PERSONAL
SERVICES FUNDS FOR THE YEAR 1988 AND ALL EVIDENCES,
SUCH AS VOUCHERS (SALARY) FOR THE WHOLE PLANTILLA
OF EIIB FOR 1988" ARE CLASSIFIED AND, THEREFORE,
BEYOND THE REACH OF PUBLIC RESPONDENT'S
SUBPOENA DUCES TECUM.
I.
There are several subsidiary issues raised by petitioners, but the
principal ones revolve on the question whether petitioners can be
ordered to produce documents relating to personal services and
salary vouchers of EIIB employees on the plea that such documents
are classified. Disclosure of the documents in question is resisted on
the ground that "knowledge of EIIB's documents relative to its
Personal Services Funds and its plantilla . . . will necessarily [lead to]
knowledge of its operations, movements, targets, strategies, and
tactics and the whole of its being" and this could "destroy the EIIB." 9
Petitioners do not question the power of the Ombudsman to issue
a subpoena duces tecum nor the relevancy or materiality of the
documents required to be produced, to the pending investigation in the
Ombudsman's office. Accordingly, the focus of discussion should be on
the Government's claim of privilege. LLphil

A.
At common law a governmental privilege against disclosure is
recognized with respect to state secrets bearing on military,
diplomatic and similar matters. This privilege is based upon public
interest of such paramount importance as in and of itself transcending
the individual interests of a private citizen, even though, as a
consequence thereof, the plaintiff cannot enforce his legal rights. 10
In addition, in the litigation over the Watergate tape subpoena in
1973, the U.S. Supreme Court recognized the right of the President to
the confidentiality of his conversations and correspondence, which it
likened to "the claim of confidentiality of judicial deliberations.” Said
the Court in United States v. Nixon. 11
The expectation of a President to the confidentiality of his
conversations and correspondence, like the claim of
confidentiality of judicial deliberations, for example, has all the
values to which we accord deference for the privacy of all citizens
and, added to those values, is the necessity for protection of the
public interest in candid, objective, and even blunt or harsh
opinions in Presidential decision-making. A President and those
who assist him must be free to explore alternatives in the process
of shaping policies and making decisions and to do so in a way
many would be unwilling to express except privately. These are the
considerations justifying a presumptive privilege for Presidential
communications. The privilege is fundamental to the operation of
the government and inextricably rooted in the separation of
powers under the Constitution . . .
Thus, the Court for the first time gave executive privilege a
constitutional status and a new name, although not necessarily a new
birth. 12
"The confidentiality of judicial deliberations" mentioned in
the opinion of the Court referred to the fact that Justices of the
U.S. Supreme Court and judges of lower federal courts have
traditionally treated their working papers and judicial notes as
private property. A 1977 proposal in the U.S. Congress that
Justices and judges of lower federal courts "should be encouraged
to make such arrangements as will assure the preservation and
eventual availability of their personal papers, especially the
deposit of their papers in the same depository they select for
[their] Public Papers" 13 was rebuffed by the Justices who, in a
letter to the Chairman of the Subcommittee on Regulation
and Government Information of the U.S. Senate, referred to
"difficult concerns respecting the appropriate separation that
must be maintained between the legislative branch and this
Court." 14
There are, in addition to such privileges, statutorily-created ones
such as the Government's privilege to withhold the identity of persons
who furnish information of violations of laws. 15
 With respect to the privilege based on state secret, the rule was
stated by the U.S. Supreme Court as follows:
Judicial control over the evidence in a case cannot be
abdicated to the caprice of executive officers. Yet we will not go so
far as to say that the court may automatically require a complete
disclosure to the judge before the claim of privilege will be
accepted in any case. It may be possible to satisfy the court, from
all the circumstances of the case, that there is a reasonable
danger that compulsion of the evidence will expose military
matters which, in the interest of national security, should not be
divulged. When this is the case, the occasion for the privilege is
appropriate, and the court should not jeopardize the security
which the privilege is meant to protect by insisting upon an
examination of the evidence, even by the judge alone, in chambers.
. . . In each case, the showing of necessity which is made will
determine how far the court should probe in satisfying itself that
the occasion for invoking the privilege is appropriate. Where there
is a strong showing of necessity, the claim of privilege should not
be lightly accepted, but even most compelling necessity cannot
overcome the claim of privilege if the court is ultimately satisfied
that military secrets are at stake. A fortiori, where necessity is
dubious, a formal claim of privilege, made under the
circumstances of this case, will have to prevail. 16
On the other hand, where the claim of confidentiality does not
rest on the need to protect military, diplomatic or other national
security secrets but on a general public interest in the confidentiality
of his conversations, courts have declined to find in the Constitution
an absolute privilege of the President against a subpoena considered
essential to the enforcement of criminal laws. 17
B.
In the case at bar, there is no claim that military or diplomatic
secrets will be disclosed by the production of records pertaining to the
personnel of the EIIB. Indeed, EIIB's function is the gathering and
evaluation of intelligence reports and information regarding "illegal
activities affecting the national economy, such as, but not limited to,
economic sabotage, smuggling, tax evasion, dollar
salting." 18 Consequently, while in cases which involve state secrets it
may be sufficient to determine from the circumstances of the case
that there is reasonable danger that compulsion of the evidence will
expose military matters without compelling production, 19no similar
excuse can be made for a privilege resting on other considerations. prLL

Nor has our attention been called to any law or regulation which
considers personnel records of the EIIB as classified information. To
the contrary, COA Circular No. 88-293, which petitioners invoke to
support their contention that there is adequate safeguard against
misuse of public funds, provides that the "onlyitem of expenditure
which should be treated strictly confidential" is that which refers to
the "purchase of information and payment of rewards." Thus, part V,
No. 7 of the Circular reads:
The only item of expenditure which should be treated as
strictly confidential because it falls under the category of
classified information is that relating to purchase of information
and payment of rewards. However, reasonable records should be
maintained and kept for inspection of the Chairman, Commission
on Audit or his duly authorized representative. All other
expenditures are to be considered unclassified supported by
invoices, receipts and other documents, and, therefore, subject to
reasonable inquiry by the Chairman or his duly authorized
representative. 20
It should be noted that the regulation requires that "reasonable
records" be kept justifying the confidential or privileged character of
the information relating to informers. There are no such reasonable
records in this case to substitute for the records claimed to be
confidential.
The other statutes and regulations 21 invoked by petitioners in
support of their contention that the documents sought in the
subpoena duces tecum of the Ombudsman are classified merely
indicate the confidential nature of the EIIB's functions, but they do not
exempt the EIIB from the duty to account for its funds to the proper
authorities. Indeed by denying that there were savings made from
certain items in the agency and alleging that the DBM had released to
the EIIB only the allocations needed for the 947 personnel retained
after its reorganization, petitioners in effect invited inquiry into the
veracity of their claim. If, as petitioners claim, the subpoenaed records
have been examined by the COA and found by it to be regular in all
respects, there is no reason why they cannot be shown to another
agency of the government which by constitutional mandate is required
to look into any complaint concerning public office.
On the other hand, the Ombudsman is investigating a complaint
that several items in the EIIB were filled by fictitious persons and that
the allotments for these items in 1988 were used for illegal purposes.
The plantilla and other personnel records are relevant to his
investigation. He and his Deputies are designated by the Constitution
"protectors of the people" and as such they are required by it "to act
promptly on complaints in any form or manner against public officials
or employees of the Government, or any subdivision, agency or
instrumentality thereof, including government-owned or controlled
corporation." 22
 His need for the documents thus outweighs the claim of
confidentiality of petitioners. What is more, while there might have
been compelling reasons for the claim of privilege in 1988 when it was
asserted by petitioners, now, seven years later, these reasons may
have been attenuated, if they have not in fact ceased. The agents
whose identities could not then be revealed may have ceased from the
service of the EIIB, while the covert missions to which they might have
been deployed might either have been accomplished or abandoned. On
the other hand, the Ombudsman's duty to investigate the complaint
that there were in 1988 unfilled positions in the EIIB for which
continued funding was received by its officials and put to illegal use,
remains. LLphil

Above all, even if the subpoenaed documents are treated as

presumptively privileged, this decision would only justify ordering their
inspection in camera but not their nonproduction. However, as
concession to the nature of the functions of the EIIB and just to be
sure no information of a confidential character is disclosed, the
examination of records in this case should be made in strict
confidence by the Ombudsman himself. Reference may be made to the
documents in any decision or order which the Ombudsman may render
or issue but only to the extent that it will not reveal covert activities of
the agency. Above all, there must be a scrupulous protection of the
documents delivered.
With these safeguards outlined, it is believed that a satisfactory
resolution of the conflicting claims of the parties is achieved, It is not
amiss to state that even matters of national security have been
inquired into in appropriate in camera proceedings by the courts.
In Lansang v. Garcia 23 this Court held closed door sessions, with only
the immediate parties and their counsel present, to determine claims
that because of subversion there was imminent danger to public
safety warranting the suspension of the writ of habeas corpus in 1971.
Again in Marcos v. Manglapus 24 the Court met behind closed doors to
receive military briefings on the threat posed to national security by
the return to the country of the former President and his family. In the
United States, a similar inquiry into the danger to national security as
a result of the publication of classified documents on the Vietnam war
was upheld by the U.S. Supreme Court. 25 We see no reason why
similar safeguards cannot be made to enable an agency of the
Government, like the Office of the Ombudsman, to carry out its
constitutional duty to protect public interests 26 while insuring the
confidentiality of classified documents.
C.
 Petitioners contend that under Art. XI, § 13 (4) the Ombudsman
can act only "in any appropriate case, and subject to such limitations
as may be provided by law" and that because the complaint in this
case is unsigned and unverified, the case is not an appropriate one.
This contention lacks merit. As already stated, the Constitution
expressly enjoins the Ombudsman to act on any complaint filed "in any
form or manner" concerning official acts or omissions. Thus, Art. XI, §
12 provides:cdphil

The Ombudsman and his Deputies, as protectors of the

people, shall act promptly on complaints filed in any form or
manner against public officials or employees of the Government, or
any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations and shall
in appropriate cases, notify the complainants of the action taken
and the result thereof. (Emphasis added)
Similarly, the Ombudsman Act of 1989 (Rep. Act No. 6770) provides in §
26(2):
The Office of the Ombudsman shall receive complaints from
any source in whatever form concerning an official act or
omission. It shall act on the complaint immediately and it finds the
same entirely baseless, it shall dismiss the same and inform the
complainant of such dismissal citing the reasons therefor. If it
finds a reasonable ground to investigate further, it shall first
furnish the respondent public officer or employee with a summary
of the complaint and require him to submit a written answer within
seventy-two hours from receipt thereof. If the answer is found
satisfactory, it shall dismiss the case. (Emphasis added)
Accordingly, in Diaz v. Sandiganbayan 27 the Court held that
testimony given at a fact-finding investigation and charges made in a
pleading in a case in court constituted a sufficient basis for the
Ombudsman to commence investigation, because a formal complaint
was really not necessary.
Rather than referring to the form of complaints, therefore, the
phrase "in an appropriate case" in Art. XI, § 12 means any case
concerning official act or omission which is alleged to be "illegal,
unjust, improper, or inefficient." 28 The phrase "subject to such
limitations as may be provided by law" refers to such limitations as
may be provided by Congress or, in the absence thereof, to such
limitations as may be imposed by the courts. Such limitations may well
include a requirement that the investigation be conducted in camera,
with the public excluded, as exception to the general nature of the
proceedings in the Office of the Ombudsman. 29 A reconciliation is
thereby made between the demands of national security and the
requirement of accountability enshrined in the Constitution. 30
 What has been said above disposes of petitioners' contention that
the anonymous letter-complaint against them is nothing but a
vexatious prosecution. It only remains to say that the general
investigation in the Ombudsman's office is precisely for the purpose of
protecting those against whom a complaint is filed against hasty,
malicious, and oppressive prosecution as much as securing the State
from useless and expensive trials. There may also be benefit resulting
from such limitedin camera inspection in terms of increased public
confidence that the privilege is not being abused and increased
likelihood that no abuse is in fact occurring. LLpr

II.
Nor is there violation of petitioners' right to the equal protection
of the laws. Petitioners complain that "in all forum and tribunals . . .
the aggrieved parties . . . can only hale respondents via their verified
complaints or sworn statements with their identities fully disclosed,"
while in proceedings before the Office of the Ombudsman anonymous
letters suffice to start an investigation. In the first place, there can be
no objection to this procedure because it is provided in the
Constitution itself. In the second place, it is apparent that in
permitting the filing of complaints "in any form and in a manner," the
framers of the Constitution took into account the well-known
reticence of the people which keep them from complaining against
official wrongdoings. As this Court had occasion to point out, the
Office of the Ombudsman is different from the other investigatory and
prosecutory agencies of the government because those subject to its
jurisdiction are public officials who, through official pressure and
influence, can quash, delay or dismiss investigations held against
them. 31 On the other hand complainants are more often than not poor
and simple folk who cannot afford to hire lawyers. 32
III.
Finally, it is contended that the issuance of the subpoena duces
tecum would violate petitioners' right against self-incrimination. It is
enough to state that the documents required to be produced in this
case are public records and those to whom the subpoena duces
tecum is directed are government officials in whose possession or
custody the documents are. Moreover, if, as petitioners claim the
disbursement by the EII of funds for personal service has already been
cleared by the COA, there is no reason why they should object to the
examination of the documents by respondent Ombudsman. LLpr

WHEREFORE, the petition is DISMISSED, but it is directed that the

inspection of subpoenaed documents be made personally in camera by
the Ombudsman, and with all the safeguards outlined in this decision.
SO ORDERED.
||| (Almonte v. Vasquez, G.R. No. 95367, [May 23, 1995], 314 PHIL 150-183)

[G.R. No. L-23794. February 17, 1968.]

ORMOC SUGAR COMPANY, INC., plaintiff-appellant, vs. THE

TREASURER OF ORMOC CITY, THE MUNICIPAL BOARD OF
ORMOC CITY, HON. ESTEBAN C. CONEJOS, as Mayor of Ormoc
City and ORMOC CITY, defendants-appellees.

Ponce Enrile, Siguion Reyna, Montecillo & Belo and Teehankee,

Carreon & Tañada for plaintiff-appellant.
Ramon O. de Veyra for defendants-appellees.
 SYLLABUS

1. MUNICIPAL CORPORATIONS; POWER TO IMPOSE EXPORT OR

IMPORT TAX; REP. ACT 2264, SEC. 2; EFFECT ON SEC. 2287 OF
REVISED ADMINISTRATIVE CODE. — Section 2 of Rep. Act 2264 which
became effective on June 19, 1959, gave chartered cities,
municipalities and municipal districts authority to levy for public
purposes just and uniform taxes, licenses or fees. This provision of law
has repealed Sec. 2287 of the Revised Administrative Code (Nin Bay
Mining Co. vs. Municipality of Roxas, L-20125, July 20, 1965), which
withheld from municipalities the power to impose an import or export
tax upon such goods in the guise of an unreasonable charge for
wharfage.
2. CONSTITUTIONAL LAW; EQUAL PROTECTION OF LAW;
REASONABLE CLASSIFICATION; REQUISITES. — The equal protection
clause applies only to persons or things identically situated and does
not bar a reasonable classification of the subject of legislation. A
classification is reasonable where (1) it is based on substantial
distinctions which make real differences; (2) these are germane to the
purpose of the law; (3) the classification applies not only to present
conditions but also to future conditions which are substantially
identical to those of the present; (4) the classification applies only to
those who belong to the same class.
3. ID.; ID.; ID.; TAX ORDINANCE SHOULD NOT BE SINGULAR AND
EXCLUSIVE. — When the taxing ordinance was enacted, Ormoc Sugar
Co,, Inc. was the only sugar central in the City. A reasonable
classification should be in terms applicable to future conditions as
well. The taxing ordinance should not be singular and exclusive as to
exclude any subsequently established sugar central.
4. TAXATION; TAX, REFUND OF; NO INTEREST CAN BE CLAIMED;
REASONS. — Appellant is not entitled to interest on the refund
because the taxes were not arbitrarily collected. There is sufficient
basis to preclude arbitrariness. The constitutionality of the statute is
presumed until declared otherwise.

DECISION

BENGZON, J.P., J :
p

On January 29, 1964, the Municipal Board of Ormoc City

passed 1 Ordinance No. 4, Series of 1964, imposing "on any and all
productions of centrifugal sugar milled at the Ormoc Sugar Company,
Inc., in Ormoc City a municipal tax equivalent to one per centum (1%)
per export sale to the United States of America and other foreign
countries." 2
Payments for said tax were made, under protest, by Ormoc Sugar
Company, Inc. on March 20, 1964 for P7,087.50 and on April 20, 1964 for
P5,000.00, or a total of P12,087.50.
On June 1, 1964, Ormoc Sugar Company, Inc. filed before the
Court of First Instance of Leyte, with service of a copy upon the
Solicitor General, a complaint 3against the City of Ormoc as well as its
Treasurer, Municipal Board and Mayor, alleging that the afore-stated
ordinance is unconstitutional for being violative of the equal
protection clause (Sec. 1[1], Art. III, Constitution) and the rule of
uniformity of taxation (Sec. 22[1], Art. VI, Constitution), aside from
being an export tax forbidden under Section 2287 of the Revised
Administrative Code. It further alleged that the tax is neither a
production nor a license tax which Ormoc City under Section 15-kk of
its charter and under Section 2 of Republic Act 2264, otherwise known
as the Local Autonomy Act, is authorized to impose; and that the tax
amounts to a customs duty, fee or charge in violation of paragraph 1 of
Section 2 of Republic Act 2264 because the tax is on both the sale and
export of sugar.
Answering, the defendants asserted that the tax ordinance was
within defendant city's power to enact under the Local Autonomy
Act and that the same did not violate the afore-cited constitutional
limitations. After pre-trial and submission of the case on memoranda,
the Court of First Instance, on August 6, 1964, rendered a decision that
upheld the constitutionality of the ordinance and declared the taxing
power of defendant chartered city broadened by the Local Autonomy
Act to include all other forms of taxes, licenses or fees not excluded in
its charter.
Appeal therefrom was directly taken to Us by plaintiff Ormoc
Sugar Company, Inc. Appellant alleges the same statutory and
constitutional violations in the aforesaid taxing ordinance mentioned
earlier.
Section 1 of the ordinance states: "There shall be paid to the City
Treasurer on any and all productions of centrifugal sugar milled at the
Ormoc Sugar Company Incorporated, in Ormoc City a municipal tax
equivalent to one per centum (1%) per export sale to the United States
of America and other foreign countries." Though referred to as a
"production tax", the imposition actually amounts to a tax on the
export of centrifugal sugar produced at Ormoc Sugar Company, Inc.
For production of sugar alone is not taxable; the only time the tax
applies is when the sugar produced is exported.
 Appellant questions the authority of the defendant Municipal
Board to levy such an export tax, in view of Section 2287 of the
Revised Administrative Code which denies from municipal councils the
power to impose an export tax. Section 2287 in part states: "It shall
not be in the power of the municipal council to impose a tax in any
form whatever, upon goods and merchandise carried into the
municipality, or out of the same, and any attempt to impose an import
or export tax upon such goods in the guise of an unreasonable charge
for wharfage, use of bridges or otherwise, shall be void."
Subsequently, however, Section 2 of Republic Act 2264, effective
June 19, 1959, gave chartered cities, municipalities and municipal
districts authority to levy for public purposes just and uniform taxes,
licenses or fees. Anent the inconsistency between Section 2287 of the
Revised Administrative Code and Section 2 of Republic Act 2264, this
Court, in Nin Bay Mining Co. v. Municipality of Roxas, 4 held the former
to have been repealed by the latter. And expressing Our awareness of
the transcendental effects that municipal export or import taxes or
licenses will have on the national economy, due to Section 2
of Republic Act 2264, We stated that there was no other alternative
until Congress acts to provide remedial measures to forestall any
unfavorable results.
The point remains to be determined, however, whether
constitutional limits on the power of taxation, specifically the equal
protection clause and rule of uniformity of taxation, were infringed.
The Constitution in the bill of rights provides: ". . . nor shall any
person be denied the equal protection of the laws." (Sec. 1[1], Art. 111)
In Felwa v. Salas 5 We ruled that the equal protection clause applies
only to persons or things identically situated and does not bar a
reasonable classification of the subject of legislation, and a
classification is reasonable where (1) it is based on substantial
distinctions which make real differences; (2) these are germane to the
purpose of the law; (3) the classification applies not only to present
conditions but also to future conditions which are substantially
identical to those of the present; (4) the classification applies only to
those who belong to the same class.
A perusal of the requisites instantly shows that the questioned
ordinance does not meet them, for it taxes only centrifugal sugar
produced and exported by the Ormoc Sugar Company, Inc. and none
other. At the time of the taxing ordinance's enactment, Ormoc Sugar
Company, Inc., it is true, was the only sugar central in the city of
Ormoc. Still, the classification, to be reasonable, should be in terms
applicable to future conditions as well. The taxing ordinance should
not be singular and exclusive as to exclude any subsequently
 established sugar central, of the same class as plaintiff, from the
coverage of the tax. As it is now, even if later a similar company is set
up, it cannot be subject to the tax because the ordinance expressly
points only to Ormoc Sugar Company, Inc. as the entity to be levied
upon.
Appellant, however, is not entitled to interest on the refund
because the taxes were not arbitrarily collected (Collector of Internal
Revenue v. Binalbagan).6 At the time of collection, the ordinance
provided a sufficient basis to preclude arbitrariness, the same being
then presumed constitutional until declared otherwise.
WHEREFORE, the decision appealed from is hereby reversed, the
challenged ordinance is declared unconstitutional and the defendants-
appellees are hereby ordered to refund the P12,087.50 plaintiff-
appellant paid under protest. No. costs. So ordered.
Concepcion, C . J ., Reyes, J.B.L., Dizon, Makalintal, Zaldivar,
Sanchez, Castro, Angeles and Fernando, JJ ., concur.
(Ormoc Sugar Co. Inc. v. Treasurer of Ormoc City, G.R. No. L-23794,
|||

[February 17, 1968], 130 PHIL 595-599)