Republic of the Philippines "Whereas several attempts and schemes have been made for the
SUPREME COURT advancement of the non-Christian people of Mindoro, which were
Manila
EN BANC
G.R. No. L-14078 March 7, 1919
RUBI, ET AL. (manguianes), plaintiffs,
vs.
THE PROVINCIAL BOARD OF MINDORO, defendant.
D. R. Williams & Filemon Sotto for plaintiff.
Office of the Solicitor-General Paredes for defendant.
MALCOLM, J.:
In one of the cases which denote a landmark in American Constitutional History
(Worcester vs. Georgia [1832], 6 Pet., 515), Chief Justice Marshall, the first luminary
of American jurisprudence, began his opinion (relating to the status of an Indian) with
words which, with a slight change in phraseology, can be made to introduce the
present opinion — This cause, in every point of view in which it can be placed, is of
the deepest interest. The legislative power of state, the controlling power of the
constitution and laws, the rights if they have any, the political existence of a people,
the personal liberty of a citizen, are all involved in the subject now to be considered.
To imitate still further the opinion of the Chief Justice, we adopt his outline and
proceed first, to introduce the facts and the issues, next to give a history of the so
called "non-Christians," next to compare the status of the "non-Christians" with that of
the American Indians, and, lastly, to resolve the constitutional questions presented.
I. INTRODUCTION.
This is an application for habeas corpus in favor of Rubi and other Manguianes of the
Province of Mindoro. It is alleged that the Maguianes are being illegally deprived of
their liberty by the provincial officials of that province. Rubi and his companions are
said to be held on the reservation established at Tigbao, Mindoro, against their will,
and one Dabalos is said to be held under the custody of the provincial sheriff in the
prison at Calapan for having run away form the reservation.
The return of the Solicitor-General alleges:
1. That on February 1, 1917, the provincial board of Mindoro adopted
resolution No. 25 which is as follows:
The provincial governor, Hon. Juan Morente, Jr., presented the following
resolution:
all a failure,
"Whereas it has been found out and proved that unless some other
measure is taken for the Mangyan work of this province, no
successful result will be obtained toward educating these people.
"Whereas it is deemed necessary to obliged them to live in one
place in order to make a permanent settlement,
"Whereas the provincial governor of any province in which non-
Christian inhabitants are found is authorized, when such a course is
deemed necessary in the interest of law and order, to direct such
inhabitants to take up their habitation on sites on unoccupied public
lands to be selected by him and approved by the provincial board.
"Whereas the provincial governor is of the opinion that the sitio of
Tigbao on Lake Naujan is a place most convenient for the
Mangyanes to live on, Now, therefore be it
"Resolved, that under section 2077 of the Administrative Code, 800 hectares
of public land in the sitio of Tigbao on Naujan Lake be selected as a site for
the permanent settlement of Mangyanes in Mindoro subject to the approval
of the Honorable Secretary of the Interior, and
"Resolved further, That Mangyans may only solicit homesteads on this
reservation providing that said homestead applications are previously
recommended by the provincial governor."
2. That said resolution No. 25 (series 1917) of the provincial board of
Mindoro was approved by the Secretary of the Interior of February 21, 1917.
3. That on December 4, 1917, the provincial governor of Mindoro issued
executive order No. 2 which says:
"Whereas the provincial board, by Resolution No. 25, current
series, has selected a site in the sitio of Tigbao on Naujan Lake for
the permanent settlement of Mangyanes in Mindoro.
"Whereas said resolution has been duly approve by the Honorable,
the Secretary of the Interior, on February 21, 1917.
"Now, therefore, I, Juan Morente, jr., provincial governor of
Mindoro, pursuant to the provisions of section 2145 of the revised
Administrative Code, do hereby direct that all the Mangyans in the
townships of Naujan and Pola and the Mangyans east of the Baco
River including those in the districts of Dulangan and Rubi's place
 in Calapan, to take up their habitation on the site of Tigbao, Naujan
Lake, not later than December 31, 1917.
"Any Mangyan who shall refuse to comply with this order shall upon
conviction be imprisoned not exceed in sixty days, in accordance
with section 2759 of the revised Administrative Code."
4. That the resolution of the provincial board of Mindoro copied in paragraph
1 and the executive order of the governor of the same province copied in
paragraph 3, were necessary measures for the protection of the Mangyanes
of Mindoro as well as the protection of public forests in which they roam, and
to introduce civilized customs among them.
5. That Rubi and those living in his rancheria have not fixed their dwelling
within the reservation of Tigbao and are liable to be punished in accordance
with section 2759 of Act No. 2711.
6. That the undersigned has not information that Doroteo Dabalos is being
detained by the sheriff of Mindoro but if he is so detained it must be by virtue
of the provisions of articles Nos. 2145 and 2759 of Act No. 2711.
It thus appears that the provincial governor of Mindoro and the provincial board
thereof directed the Manguianes in question to take up their habitation in Tigbao, a
site on the shore of Lake Naujan, selected by the provincial governor and approved
by the provincial board. The action was taken in accordance with section 2145 of the
Administrative Code of 1917, and was duly approved by the Secretary of the Interior
as required by said action. Petitioners, however, challenge the validity of this section
of the Administrative Code. This, therefore, becomes the paramount question which
the court is called upon the decide.
Section 2145 of the Administrative Code of 1917 reads as follows:
SEC. 2145. Establishment of non-Christina upon sites selected by provincial
governor. — With the prior approval of the Department Head, the provincial
governor of any province in which non-Christian inhabitants are found is
authorized, when such a course is deemed necessary in the interest of law
and order, to direct such inhabitants to take up their habitation on sites on
unoccupied public lands to be selected by him an approved by the provincial
board.
In connection with the above-quoted provisions, there should be noted section 2759
of the same Code, which read as follows:
SEC. 2759. Refusal of a non-Christian to take up appointed habitation. —
Any non-Christian who shall refuse to comply with the directions lawfully
given by a provincial governor, pursuant to section two thousand one
hundred and forty-five of this Code, to take up habitation upon a site
designated by said governor shall upon conviction be imprisonment for a
period not exceeding sixty days.
The substance of what is now found in said section 2145 is not new to Philippine law.
The genealogical tree of this section, if we may be permitted to use such terminology,
would read: Section 2077, Administrative Code of 1916; section 62, Act No. 1397;
section 2 of various special provincial laws, notably of Act No. 547, specifically
relating to the Manguianes; section 69, Act No. 387.
Section 2145 and its antecedent laws make use of the term "non-Christians." This
word, as will later be disclosed, is also found in varying forms in other laws of the
Philippine Islands. In order to put the phrase in its proper category, and in order to
understand the policy of the Government of the Philippine Islands with reference to
the uncivilized elements of the Islands, it is well first of all to set down a skeleton
history of the attitude assumed by the authorities towards these "non-Christians," with
particular regard for the legislation on the subject.
II. HISTORY.
A. BEFORE ACQUISITION OF THE PHILIPPINE BY THE UNITED STATES.
The most important of the laws of the Indies having reference to the subject at hand
are compiled in Book VI, Title III, in the following language.
LAW I.
The Emperor Charles and the Prince, the governor, at Cigales, on March 21,
1551. Philip II at Toledo, on February 19, 1560. In the forest of Segovia on
September 13, 1565. In the Escorial on November 10, 1568. Ordinance 149
of the poblaciones of 1573. In San Lorenzo, on May 20, 1578,
THAT THE "INDIOS" BE REDUCED INTO "POBLACIONES" COMMUNITIES).
In order that the indios may be instructed in the Sacred Catholic Faith and
the evangelical law, and in order that they may forget the blunders of their
ancient rites and ceremonies to the end that they may live in harmony and in
a civilized manner, it has always been endeavored, with great care and
special attention, to use all the means most convenient to the attainment of
these purposes. To carry out this work with success, our Council of the
Indies and other religious persons met at various times; the prelates of new
Spain assembled by order of Emperor Charles V of glorious memory in the
year one thousand five hundred and forty-six — all of which meetings were
actuated with a desire to serve God an our Kingdom. At these meetings it
was resolved that indios be made to live in communities, and not to live in
places divided and separated from one another by sierras and mountains,
wherein they are deprived of all spiritual and temporal benefits and wherein
they cannot profit from the aid of our ministers and from that which gives rise
to those human necessities which men are obliged to give one another.
Having realized that convenience of this resolution, our kings, our
predecessors, by different orders, have entrusted and ordered the viceroys,
presidents, and governors to execute with great care and moderation the
concentration of the indios into reducciones; and to deal with their doctrine
 with such forbearance and gentleness, without causing inconveniences, so
that those who would not presently settle and who would see the good
treatment and the protection of those already in settlements would, of their
own accord, present themselves, and it is ordained that they be not required
to pay taxes more than what is ordered. Because the above has been
executed in the greater part of our Indies, we hereby order and decree that
the same be complied with in all the remaining parts of the Indies, and
the encomederos shall entreat compliance thereof in the manner and form
prescribed by the laws of this title.
xxx xxx xxx
LAW VIII.
Philip II at the Pardo, on December 1, 1573. Philip III at Madrid, October 10,
1618.
THE "REDUCCTIONES" BE MADE IN ACCORDANCE WITH THE CONDITIONS OF
THIS LAW.
The places wherein the pueblos and reducciones shall be formed should
have the facilities of waters. lands, and mountains, ingress and egress,
husbandry and passageway of one league long, wherein the indios can have
their live stock that they may not be mixed with those of the Spaniards.
LAW IX.
Philip II at Toledo, on February 19, 1956.
THAT THE "INDIOS" IN "REDUCCIONES" BE NOT DEPRIVED OF THE LANDS
PREVIOUSLY HELD BY THEM.
With more good-will and promptness, the indios shall be concentrated
in reducciones. Provided they shall not be deprived of the lands and
granaries which they may have in the places left by them. We hereby order
that no change shall be made in this respect, and that they be allowed to
retain the lands held by them previously so that they may cultivate them and
profit therefrom.
xxx xxx xxx
LAW XIII.
THE SAME AS ABOVE.
THAT THE "REDUCCIONES" BE NOT REMOVED WITHOUT ORDER OF THE
KING, VICEROY, OR COURT.
No governor, or magistrate, or alcalde mayor, or any other court, has the
right to alter or to remove thepueblos or the reducciones once constituted
and founded, without our express order or that of the viceroy, president, or
the royal district court, provided, however, that the encomenderos, priests,
or indios request such a change or consent to it by offering or giving
information to that en. And, because these claims are often made for private
interests and not for those of the indios, we hereby order that this law be
always complied with, otherwise the change will be considered fraudulently
obtained. The penalty of one thousand pesos shall be imposed upon the
judge or encomendero who should violate this law.
LAW XV.
Philip III at Madrid, on October 10, 1618.
THAT THERE BE MAYORS AND ALDERMEN IN THE "REDUCTIONES," WHO
SHALL BE "INDIOS."
We order that in each town and reduccion there be a mayor, who should be
an indio of the same reduccion; if there be more than eighty houses, there
should be two mayors and two aldermen, also indios; and, even if the town
be a big one, there should, nevertheless, be more than two mayors and four
aldermen, If there be less than eighty indios but not less than forty, there
should be not more than one mayor and one alderman, who should annually
elect nine others, in the presence of the priests , as is the practice in town
inhabited by Spaniards and indios.
LAW XXI.
Philip II, in Madrid, On May 2, 1563, and on November 25, 1578. At Tomar,
on May 8, 1581. At Madrid, on January 10, 1589. Philip III, at Todesillas, on
July 12, 1600. Philip IV, at Madrid, on October 1 and December 17, 1646.
For this law and the one following, see Law I, Tit. 4, Book 7.
THAT IN THE TOWNS OF THE "INDIOS," THERE SHALL LIVE NO SPANIARDS,
NEGROES, "MESTIZOS," AND MULATTOES.
We hereby prohibit and forbid Spaniards, negroes, mulattores,
or mestizos to live to live in the reduccionesand towns and towns of
the indios, because it has been found that some Spaniards who deal, trade,
live, and associate with the indios are men of troublesome nature, of dirty
ways of living; robbers, gamblers, and vicious and useless men; and, to
avoid the wrongs done them, the indios would leave their towns and
provinces; and the negroes, mestizos, and mulattoes, besides maltreating
them and utilizing their services, contaminate them with their bad customs,
idleness, and also some of their blunders and vices which may corrupt and
pervert the goal which we desire to reach with regard to their salvation,
increase, and tranquillity. We hereby order the imposition of grave penalties
upon the commission of the acts above-mentioned which should not be
 tolerated in the towns, and that the viceroys, presidents, governors, and
courts take great care in executing the law within their powers and avail
themselves of the cooperation of the ministers who are truly honest. As
regards the mestizos and Indian and Chinese half-breeds (zambaigos), who
are children of indiasand born among them, and who are to inherit their
houses and haciendas, they all not be affected by this law, it appearing to be
a harsh thing to separate them from their parents. (Law of the Indies, vol. 2,
pp. 228, 229, 230, 231.)
A clear exposition of the purposes of the Spanish government, in its efforts to improve
the condition of the less advanced inhabitants of the Islands by concentrating them in
"reducciones," is found in the Decree of the Governor-General of the Philippine
Islands of January 14, 1881, reading as follows:
It is a legal principle as well as a national right that every inhabitant of a
territory recognized as an integral part of a nation should respect and obey
the laws in force therein; while, on other hand, it is the duty to conscience
and to humanity for all governments to civilize those backward races that
might exist in the nation, and which living in the obscurity of ignorance, lack
of all the nations which enable them to grasp the moral and material
advantages that may be acquired in those towns under the protection and
vigilance afforded them by the same laws.
It is equally highly depressive to our national honor to tolerate any longer the
separation and isolation of the non-Christian races from the social life of the
civilized and Christian towns; to allow any longer the commission of
depredations, precisely in the Island of Luzon wherein is located the seat of
the representative of the Government of the, metropolis.
It is but just to admit the fact that all the governments have occupied
themselves with this most important question, and that much has been
heretofore accomplished with the help and self-denial of the missionary
fathers who have even sacrificed their lives to the end that those degenerate
races might be brought to the principles of Christianity, but the means and
the preaching employed to allure them have been insufficient to complete
the work undertaken. Neither have the punishments imposed been sufficient
in certain cases and in those which have not been guarded against, thus
giving and customs of isolation.
As it is impossible to consent to the continuation of such a lamentable state
of things, taking into account the prestige which the country demands and
the inevitable duty which every government has in enforcing respect and
obedience to the national laws on the part of all who reside within the
territory under its control, I have proceeded in the premises by giving the
most careful study of this serious question which involves important interests
for civilization, from the moral and material as well as the political
standpoints. After hearing the illustrious opinions of all the local authorities,
ecclesiastics, and missionaries of the provinces of Northern Luzon, and also
after finding the unanimous conformity of the meeting held with the
Archbishop of Manila, the Bishops of Jaro and Cebu, and the provincial
prelates of the orders of the Dominicans, Agustinians, Recoletos,
Franciscans, and Jesuits as also of the meeting of the Council of Authorities,
held for the object so indicated, I have arrived at an intimate conviction of the
inevitable necessity of proceeding in a practical manner for the submission
of the said pagan and isolated races, as well as of the manner and the only
form of accomplishing such a task.
For the reasons above stated and for the purpose of carrying out these
objects, I hereby promulgate the following:
DECREE.
1. All the indian inhabitants (indios) of the Islands of Luzon are, from this
date, to be governed by the common law, save those exceptions prescribed
in this decree which are bases upon the differences of instructions, of the
customs, and of the necessities of the different pagan races which occupy a
part of its territory.
2. The diverse rules which should be promulgated for each of these races —
which may be divided into three classes; one, which comprises those which
live isolated and roaming about without forming a town nor a home; another,
made up of those subdued pagans who have not as yet entered completely
the social life; and the third, of those mountain and rebellious pagans —
shall be published in their respective dialects, and the officials, priests, and
missionaries of the provinces wherein they are found are hereby entrusted in
the work of having these races learn these rules. These rules shall have
executive character, beginning with the first day of next April, and, as to their
compliance, they must be observed in the manner prescribed below.
3. The provincial authorities in conjunction with the priests shall proceed,
from now on, with all the means which their zeal may suggest to them, to the
taking of the census of the inhabitants of the towns or settlement already
subdued, and shall adopt the necessary regulations for the appointment of
local authorities, if there be none as yet; for the construction of courts and
schools, and for the opening or fixing up of means of communication,
endeavoring, as regards the administrative organization of the said towns or
settlements, that this be finished before the first day of next July, so that at
the beginning of the fiscal year they shall have the same rights and
obligations which affect the remaining towns of the archipelago, with the only
exception that in the first two years they shall not be obliged to render
personal services other than those previously indicated.
4. So long as these subdued towns or settlements are located infertile lands
appropriate for cultivation, the inhabitants thereof shall not be obliged to
move their dwelling-houses; and only in case of absolute necessity shall a
new residence be fixed for them, choosing for this purpose the place most
convenient for them and which prejudices the least their interest; and, in
either of these cases, an effort must be made to establish their homes with
the reach of the sound of the bell.
5. For the protection and defense of these new towns, there shall be
established an armed force composed precisely of native Christian, the
organization and service of which shall be determined in a regulations based
upon that of the abolished Tercios de Policia (division of the Guardia Civil).
6. The authorities shall see to it that the inhabitants of the new towns
understand all the rights and duties affecting them and the liberty which they
have as to where and now they shall till their lands and sell the products
thereof, with the only exception of the tobacco which shall be bought by
the Hacienda at the same price and conditions allowed other producers, and
with the prohibition against these new towns as well as the others from
engaging in commerce of any other transaction with the rebellious indios, the
violation of which shall be punished with deportation.
7. In order to properly carry out this express prohibition, the limits of the
territory of the rebellious indios shall be fixed; and whoever should go
beyond the said limits shall be detained and assigned governmentally
wherever convenient.
8. For the purpose of assisting in the conversion of the pagans into the
fraternity of the Catholic Church, all by this fact along be exempt for eight
years from rendering personal labor.
9. The authorities shall offer in the name of the State to the races not
subdued (aetas and mountains igorrots the following advantages in returns
for their voluntary submission: to live in towns; unity among their families;
concession of good lands and the right to cultivate them in the manner they
wish and in the way them deem most productive; support during a year, and
clothes upon effecting submission; respect for their habits and customs in so
far as the same are not opposed to natural law; freedom to decide of their
own accord as to whether they want to be Christians or not; the
establishment of missions and families of recognized honesty who shall
teach, direct, protect, and give them security and trust them; the purchase or
facility of the sale of their harvests; the exemption from contributions and
tributes for ten years and from the quintas (a kind of tax) for twenty years;
and lastly, that those who are governed by the local authorities as the ones
who elect such officials under the direct charge of the authorities of the
province or district.
10. The races indicated in the preceding article, who voluntarily admit the
advantages offered, shall, in return, have the obligation of constituting their
new towns, of constructing their town hall, schools, and country roads which
place them in communication with one another and with the Christians;
provided, the location of these towns be distant from their actual residences,
when the latter do not have the good conditions of location and cultivations,
and provided further the putting of families in a place so selected by them be
authorized in the towns already constituted.
11. The armed force shall proceed to the prosecution and punishment of the
tribes, that, disregarding the peace, protection, and advantages offered
them, continue in their rebellious attitude on the first of next April, committing
from now on the crimes and vexations against the Christian towns; and for
the this purposes, the Captain General's Office shall proceed with the
organization of the divisions of the Army which, in conjunction with the rural
guards (cuadrilleros), shall have to enter the territory of such tribes. On the
expiration of the term, they shall destroy their dwelling-houses, labors, and
implements, and confiscate their products and cattle. Such a punishment
shall necessarily be repeated twice a year, and for this purpose the military
headquarters shall immediately order a detachment of the military staff to
study the zones where such operations shall take place and everything
conducive to the successful accomplishment of the same.
12. The chiefs of provinces, priests, and missioners, local authorities, and
other subordinates to my authorities, local authorities, and other
subordinates to may authority, civil as well as military authorities, shall give
the most effective aid and cooperation to the said forces in all that is within
the attributes and the scope of the authority of each.
13. With respect to the reduccion of the pagan races found in some of the
provinces in the southern part of the Archipelago, which I intend to visit, the
preceding provisions shall conveniently be applied to them.
14. There shall be created, under my presidency as Governor-General, Vice-
Royal Patron, a council or permanent commission which shall attend to and
decide all the questions relative to the application of the foregoing
regulations that may be brought to it for consultations by the chiefs of
provinces and priests and missionaries.
15. The secondary provisions which may be necessary, as a complement to
the foregoing, in brining about due compliance with this decree, shall be
promulgated by the respective official centers within their respective
jurisdictions. (Gaceta de Manila, No. 15) (Diccionario de la Administracion,
vol. 7, pp. 128-134.)
B. AFTER ACQUISITON OF THE PHILIPPINES BY THE UNITED STATES.
Ever since the acquisition of the Philippine Islands by the United States, the question
as to the best method for dealing with the primitive inhabitants has been a perplexing
one.
1. Organic law.
The first order of an organic character after the inauguration of the American
Government in the Philippines was President McKinley's Instructions to the
Commission of April 7, 1900, later expressly approved and ratified by section 1 of the
Philippine Bill, the Act of Congress of July 1, 1902. Portions of these instructions have
remained undisturbed by subsequent congressional legislation. One paragraph of
particular interest should here be quoted, namely:
 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 these tribes are now living in peace and
contentment, surrounded by civilization to which they are unable or unwilling
to conform. Such tribal governments 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.
Next comes the Philippine Bill, the Act of Congress of July 1, 1902, in the nature of an
Organic Act for the Philippines. The purpose of section 7 of the Philippine Bill was to
provide for a legislative body and, with this end in view, to name the prerequisites for
the organization of the Philippine Assembly. The Philippine Legislature, composed of
the Philippine Commission and the Philippine Assembly, was to have jurisdiction over
the Christian portion of the Islands. The Philippine Commission was to retain
exclusive jurisdiction of that part of said Islands inhabited by Moros or other non-
Christian tribes.
The latest Act of Congress, nearest to a Constitution for the Philippines, is the Act of
Congress of August 29, 1916, commonly known as the Jones Law. This transferred
the exclusive legislative jurisdiction and authority theretofore exercised by the
Philippine Commission, to the Philippine Legislature (sec. 12). It divided the Philippine
Islands into twelve senatorial districts, the twelfth district to be composed of the
Mountain Province, Baguio, Nueva Vizcaya, and the Department of Mindanao and
Sulu. The Governor-General of the Philippine Islands was authorized to appoint
senators and representatives for the territory which, at the time of the passage of the
Jones Law, was not represented in the Philippine Assembly, that is, for the twelfth
district (sec. 16). The law establish a bureau to be known as the "Bureau of non-
Christian Tribes" which shall have general supervision over the public affairs of the
inhabitants which are represented in the Legislature by appointed senators and
representatives( sec. 22).
Philippine organic law may, therefore, be said to recognized a dividing line between
the territory not inhabited by Moros or other non-Christian tribes, and the territory
which Moros or other non-Christian tribes, and the territory which is inhabited by
Moros or other non-Christian tribes.
2. Statute law.
Local governments in the Philippines have been provided for by various acts of the
Philippine Commission and Legislature. The most notable are Acts Nos. 48 and 49
concerning the Province of Benguet and the Igorots; Act NO. 82, the Municipal Code;
;Act no. 83, the Provincial Government Act; Act No. 183, the Character of the city of
Manila; Act No. 7887, providing for the organization and government of the Moro
Province; Act No. 1396, the Special Provincial Government Act; Act No. 1397, the
Township Government Act; Act No. 1667, relating to the organization of settlements;
Act No. 1963, the Baguio charger; and Act No. 2408, the Organic Act of the
Department of Mindanao and Sulu. The major portion of these laws have been
carried forward into the Administrative Codes of 1916 an d1917.
Of more particular interest are certain special laws concerning the government of the
primitive peoples. Beginning with Act No. 387, sections 68-71, enacted on April 9,
1902, by the United States Philippine Commission, having reference to the Province
of Nueva Vizcaya, Acts Nos. 4111, 422, 445, 500, 547, 548, 549, 550, 579, 753, 855,
1113, 1145, 4568, 1306 were enacted for the provinces of Abra, Antique, Bataan,
Ilocos Norte, Ilocos Sur, Isabela. Lepanto-Bontoc, Mindoro, Misamis, Nueva Vizcaya,
Pangasinan, Paragua (Palawan), Tarlac, Tayabas, and Zambales. As an example of
these laws, because referring to the Manguianes, we insert Act No. 547:
No. 547. — AN ACT PROVIDING FOR THE ESTABLISHMENT OF
LOCAL CIVIL GOVERNMENTS FOR THE MANGUIANES IN THE
PROVINCE OF MINDORO.
By authority of the United States, be it enacted by the Philippine
Commission, that:
SECTION 1. Whereas the Manguianes of the Provinces of Mindoro have not
progressed sufficiently in civilization to make it practicable to bring them
under any form of municipal government, the provincial governor is
authorized, subject to the approval of the Secretary of the Interior, in dealing
with these Manguianes to appoint officers from among them, to fix their
designations and badges of office, and to prescribe their powers and duties:
Provided, That the powers and duties thus prescribed shall not be in excess
of those conferred upon township officers by Act Numbered Three hundred
and eighty-seven entitled "An Act providing for the establishment of local civil
Governments in the townships and settlements of Nueva Vizcaya."
SEC. 2. Subject to the approval of the Secretary of the Interior, the provincial
governor is further authorized, when he deems such a course necessary in
the interest of law and order, to direct such Manguianes to take up their
habitation on sites on unoccupied public lands to be selected by him and
approved by the provincial board. Manguianes who refuse to comply with
such directions shall upon conviction be imprisonment for a period not
exceeding sixty days.
SEC. 3. The constant aim of the governor shall be to aid the Manguianes of
his province to acquire the knowledge and experience necessary for
successful local popular government, and his supervision and control over
them shall be exercised to this end, an to the end that law and order and
individual freedom shall be maintained.
SEC. 4. When in the opinion of the provincial board of Mindoro any
settlement of Manguianes has advanced sufficiently to make such a course
practicable, it may be organized under the provisions of sections one to
sixty-seven, inclusive, of Act Numbered three hundred and eighty-seven, as
a township, and the geographical limits of such township shall be fixed by
the provincial board.
 SEC. 5. The public good requiring the speedy enactment of this bill, the
passage of the same is hereby expedited in accordance with section two of
'An Act prescribing the order of procedure by the Commission in the
enactment of laws,' passed September twenty-sixth, nineteen hundred.
SEC. 6. This Act shall take effect on its passage.
Enacted, December 4, 1902.
All of these special laws, with the exception of Act No. 1306, were repealed by Act
No. 1396 and 1397. The last named Act incorporated and embodied the provisions in
general language. In turn, Act No. 1397 was repealed by the Administrative Code of
1916. The two Administrative Codes retained the provisions in questions.
These different laws, if they of the non-Christian inhabitants of the Philippines and a
settled and consistent practice with reference to the methods to be followed for their
advancement.
C. TERMINOLOGY.
The terms made use of by these laws, organic and statutory, are found in varying
forms.
"Uncivilized tribes" is the denomination in President McKinley's instruction to the
Commission.
The most commonly accepted usage has sanctioned the term "non-Christian tribes."
These words are to be found in section 7 of the Philippine Bill and in section 22 of the
Jones Law. They are also to be found in Act No. 253 of the Philippines Commission,
establishing a Bureau of non-Christian Tribes and in Act No. 2674 of the Philippine
Legislature, carried forward into sections 701-705 of the Administrative Code of 1917,
reestablishing this Bureau. Among other laws which contain the phrase, there can be
mentioned Acts Nos. 127, 128, 387, 547, 548, 549, 550, 1397, 1639, and 2551.
"Non-Christian people," "non-Christian inhabitants," and "non-Christian Filipinos" have
been the favorite nomenclature, in lieu of the unpopular word "tribes," since the
coming into being of a Filipinized legislature. These terms can be found in sections
2076, 2077, 2390, 2394, Administrative Code of 1916; sections 701-705, 2145, 2422,
2426, Administrative Code of 1917; and in Acts Nos. 2404, 2435, 2444, 2674 of the
Philippine Legislatures, as well as in Act No. 1667 of the Philippine Commission.
The Administrative Code specifically provides that the term "non-Christian" shall
include Mohammedans and pagans. (Sec. 2576, Administrative Code of 1917; sec.
2561, Administrative Code of 1916, taken from Act No. 2408, sec. 3.)
D. MEANING OF TERM "NON-CHRISTIAN."
If we were to follow the literal meaning of the word "non-Christian," it would of course
result in giving to it a religious signification. Obviously, Christian would be those who
profess the Christian religion, and non-Christians, would be those who do not profess
the Christian religion. In partial corroboration of this view, there could also be cited
section 2576 of the last Administrative Code and certain well-known authorities, as
Zuñiga, "Estadismo de las Islas Filipinas," Professor Ferdinand Blumentritt,
"Philippine Tribes and Languages," and Dr. N. M. Saleeby, "The Origin of Malayan
Filipinos." (See Blair & Robertson, "The Philippine Islands," 1493-1898, vol. III, p.
300, note; Craig-Benitez, "Philippine Progress prior to 1898," vol. I. p. 107.)
Not content with the apparent definition of the word, we shall investigate further to
ascertain what is its true meaning.
In one sense, the word can have a geographical signification. This is plainly to be
seen by the provisions of many laws. Thus, according to the Philippine Bill, the
authority of the Philippine Assembly was recognized in the "territory" of the Islands
not inhabited by Moros or other non-Christian tribes. Again, the Jones Law confers
similar recognition in the authorization of the twelfth senatorial district for the "territory
not now represented in the Philippine Assembly." The Philippines Legislature has,
time and again, adopted acts making certain other acts applicable to that "part" of the
Philippine Islands inhabited by Moros or other non-Christian tribes.
Section 2145, is found in article XII of the Provincial Law of the Administrative Code.
The first section of this article, preceding section 2145, makes the provisions of the
article applicable only in specially organized provinces. The specially organized
provinces are the Mountain Province, Nueva Vizcaya, Mindoro, Batanes, and
Palawan. These are the provinces to which the Philippine Legislature has never seen
fit to give all the powers of local self-government. They do not, however, exactly
coincide with the portion of the Philippines which is not granted popular
representation. Nevertheless, it is still a geographical description.
It is well-known that within the specially organized provinces, there live persons some
of who are Christians and some of whom are not Christians. In fact, the law
specifically recognizes this. ( Sec. 2422, Administrative Code of 1917, etc.)
If the religious conception is not satisfactory, so against the geographical conception
is likewise inadquate. The reason it that the motive of the law relates not to a
particular people, because of their religion, or to a particular province because of its
location, but the whole intent of the law is predicated n the civilization or lack of
civilization of the inhabitants.
At most, "non-Christian" is an awkward and unsatisfactory word. Apologetic words
usually introduce the term. "The so-called non-Christian" is a favorite expression. The
Secretary of the Interior who for so many years had these people under his
jurisdiction, recognizing the difficulty of selecting an exact designation, speaks of the
"backward Philippine peoples, commonly known as the 'non-Christian tribes."' (See
Hearings before the Committee on the Philippines, United States Senate, Sixty-third
Congress, third session on H.R. 18459, An Act to declare the purpose of the People
of the United States as to the future political status of the Philippine Islands and to
provide a more autonomous government for the Islands, pp. 346, 351; letter of the
Secretary of the Interior of June 30, 1906, circulated by the Executive Secretary.)
The idea that the term "non-Christian" is intended to relate to degree of civilization, is
substantiated by reference to legislative, judicial, and executive authority.
The legislative intent is borne out by Acts Nos. 48, 253, 387, 1667, and 2674, and
sections 701 et seq, and sections 2422 et seq, of the Administrative Code of 1917.
For instance, Act No. 253 charged the Bureau of non-Christian tribes to conduct
"systematic investigations with reference to non-Christian tribes . . . with special view
to determining the most practicable means for bringing about their advancement in
civilization and material property prosperity."
As authority of a judicial nature is the decision of the Supreme Court in the case of
United States vs. Tubban [Kalinga] ([1915], 29, Phil., 434). The question here arose
as to the effect of a tribal marriage in connection with article 423 of the Penal code
concerning the husband who surprises his wife in the act of adultery. In discussing
the point, the court makes use of the following language:
. . . we are not advised of any provision of law which recognizes as legal a
tribal marriage of so-called non-Christians or members of uncivilized tribes,
celebrated within that province without compliance with the requisites
prescribed by General Orders no. 68. . . . We hold also that the fact that the
accused is shown to be a member of an uncivilized tribe, of a low order of
intelligence, uncultured and uneducated, should be taken into consideration
as a second marked extenuating circumstance.
Of much more moment is the uniform construction of execution officials who have
been called upon to interpret and enforce the law. The official who, as a member of
the Philippine Commission, drafted much of the legislation relating to the so-called
Christians and who had these people under his authority, was the former Secretary of
the Interior. Under date of June 30, 1906, this official addressed a letter to all
governor of provinces, organized under the Special Provincial Government Act, a
letter which later received recognition by the Governor-General and was circulated by
the Executive Secretary, reading as follows:
Sir: Within the past few months, the question has arisen as to whether
people who were originally non-Christian but have recently been baptized or
who are children of persons who have been recently baptized are, for the
purposes of Act 1396 and 1397, to be considered Christian or non-
Christians.
It has been extremely difficult, in framing legislation for the tribes in these
islands which are not advanced far in civilization, to hit upon any suitable
designation which will fit all cases. The number of individual tribes is so great
that it is almost out of the question to enumerate all of them in an Act. It was
finally decided to adopt the designation 'non-Christians' as the one most
satisfactory, but the real purpose of the Commission was not so much to
legislate for people having any particular religious belief as for those lacking
sufficient advancement so that they could, to their own advantage, be
brought under the Provincial Government Act and the Municipal Code.
The mere act of baptism does not, of course, in itself change the degree of
civilization to which the person baptized has attained at the time the act of
baptism is performed. For practical purposes, therefore, you will give the
member of so-called "wild tribes" of your province the benefit of the doubt
even though they may recently have embraced Christianity.
The determining factor in deciding whether they are to be allowed to remain
under the jurisdiction of regularly organized municipalities or what form of
government shall be afforded to them should be the degree of civilization to
which they have attained and you are requested to govern yourself
accordingly.
I have discussed this matter with the Honorable, the Governor-General, who
concurs in the opinion above expressed and who will have the necessary
instructions given to the governors of the provinces organized under the
Provincial Government Act. (Internal Revenue Manual, p. 214.)
The present Secretary of the Interior, in a memorandum furnished a member of this
court, has the following to say on the subject:
As far as names are concerned the classification is indeed unfortunate, but
while no other better classification has as yet been made the present
classification should be allowed to stand . . . I believe the term carries the
same meaning as the expressed in the letter of the Secretary of the Interior
(of June 30, 1906, herein quoted). It is indicative of the degree of civilization
rather than of religious denomination, for the hold that it is indicative of
religious denomination will make the law invalid as against that
Constitutional guaranty of religious freedom.
Another official who was concerned with the status of the non-Christians, was the
Collector of Internal Revenue. The question arose for ruling relatives to the cedula
taxation of the Manobos and the Aetas. Thereupon, the view of the Secretary of the
Interior was requested on the point, who, by return indorsement, agreed with the
interpretation of the Collector of Internal Revenue. This Construction of the Collector
of Internal Revenue can be found in circular letter No. 188 of the Bureau of Internal
Revenue, dated June 11, 1907, reading as follows (Internal Revenue Manual, p. 214):
The internal revenue law exempts "members of non-Christian tribes" from
the payment of cedula taxes. The Collector of Internal Revenue has
interpreted this provision of law to mean not that persons who profess some
form of Christian worship are alone subject to the cedula tax, and that all
other person are exempt; he has interpreted it to mean that all persons
preserving tribal relations with the so-called non-Christian tribes are exempt
from the cedula tax, and that all others, including Jews, Mohammedans,
Confucians, Buddists, etc., are subject to said tax so long as they live in
cities or towns, or in the country in a civilized condition. In other words, it is
 not so much a matter of a man's form of religious worship or profession that
decides whether or not he is subject to the cedula tax; it is more dependent
on whether he is living in a civilized manner or is associated with the
mountain tribes, either as a member thereof or as a recruit. So far, this
question has not come up as to whether a Christian, maintaining his
religious belief, but throwing his lot and living with a non-Christian tribe,
would or would not be subject to the cedula tax. On one occasion a
prominent Hebrew of Manila claimed to this office that he was exempt from
the cedula tax, inasmuch as he was not a Christian. This Office, however,
continued to collect cedula taxes from all the Jews, East Indians, Arabs,
Chinamen, etc., residing in Manila. Quite a large proportion of the cedula
taxes paid in this city are paid by men belonging to the nationalities
mentioned. Chinamen, Arabs and other s are quite widely scattered
throughout the Islands, and a condition similar to that which exist in Manila
also exists in most of the large provincial towns. Cedula taxes are therefore
being collected by this Office in all parts of these Islands on the broad
ground that civilized people are subject to such taxes, and non-civilized
people preserving their tribal relations are not subject thereto.
(Sgd.) JNO. S. HORD,
Collector of Internal Revenue.
On September 17, 1910, the Collector of Internal Revenue addressed circular letter
No. 327, approved by the Secretary of Finance and Justice, to all provincial
treasurers. This letter in part reads:
In view of the many questions that have been raised by provincial treasurers
regarding cedula taxes due from members of non-Christian tribes when they
come in from the hills for the purposes of settling down and becoming
members of the body politic of the Philippine Islands, the following
clarification of the laws governing such questions and digest of rulings
thereunder is hereby published for the information of all concerned:
Non-Christian inhabitants of the Philippine Islands are so classed, not by
reason of the fact that they do not profess Christianity, but because of their
uncivilized mode of life and low state of development. All inhabitants of the
Philippine Islands classed as members of non-Christian tribes may be
divided into three classes in so far as the cedula tax law is concerned . . .
Whenever any member of an non-Christian tribe leaves his wild and
uncivilized mode of life, severs whatever tribal relations he may have had
and attaches himself civilized community, belonging a member of the body
politic, he thereby makes himself subject to precisely the same law that
governs the other members of that community and from and after the date
when he so attaches himself to the community the same cedula and other
taxes are due from him as from other members thereof. If he comes in after
the expiration of the delinquency period the same rule should apply to him
as to persons arriving from foreign countries or reaching the age of eighteen
subsequent to the expiration of such period, and a regular class A, D, F, or H
cedula, as the case may be, should be furnished him without penalty and
without requiring him to pay the tax for former years.
In conclusion, it should be borne in mind that the prime factors in
determining whether or not a man is subject to the regular cedula tax is not
the circumstance that he does or does not profess Christianity, nor even his
maintenance of or failure to maintain tribal relations with some of the well
known wild tribes, but his mode of life, degree of advancement in civilization
and connection or lack of connection with some civilized community. For this
reason so called "Remontados" and "Montescos" will be classed by this
office as members of non-Christian tribes in so far as the application of the
Internal Revenue Law is concerned, since, even though they belong to no
well recognized tribe, their mode of life, degree of advancement and so forth
are practically the same as those of the Igorrots and members of other
recognized non-Christina tribes.
Very respectfully,
(Sgd.) ELLIS CROMWELL,
Collector of Internal Revenue,
Approved:
(Sgd.) GREGORIO ARANETA,
Secretary of Finance and Justice.
The two circular above quoted have since been repealed by Bureau of Internal
Revenue Regulations No. 1, promulgated by Venancio Concepcion, Acting Collector
of Internal Revenue, and approved on April 16, 1915, by Honorable Victorino Mapa,
Secretary of Finance and Justice. Section 30 of the regulations is practically a
transcript of Circular Letter No. 327.
The subject has come before the Attorney-General for consideration. The Chief of
Constabulary request the opinion of the Attorney-General as to the status of a non-
Christian who has been baptized by a minister of the Gospel. The precise questions
were these: "Does he remain non-Christian or is he entitled to the privileges of a
Christian? By purchasing intoxicating liquors, does he commit an infraction of the law
and does the person selling same lay himself liable under the provision of Act No.
1639?" The opinion of Attorney-General Avanceña, after quoting the same authorities
hereinbefore set out, concludes:
In conformity with the above quoted constructions, it is probable that is
probable that the person in question remains a non-Christian, so that, in
purchasing intoxicating liquors both he and the person selling the same
make themselves liable to prosecution under the provisions of Act No. 1639.
At least, I advise you that these should be the constructions place upon the
law until a court shall hold otherwise.
Solicitor-General Paredes in his brief in this case says:
 With respect to the meaning which the phrase non-Christian inhabitants has
in the provisions of the Administrative code which we are studying, we
submit that said phrase does not have its natural meaning which would
include all non-Christian inhabitants of the Islands, whether Filipino or
strangers, civilized or uncivilized, but simply refers to those uncivilized
members of the non-Christian tribes of the Philippines who, living without
home or fixed residence, roam in the mountains, beyond the reach of law
and order . . .
The Philippine Commission in denominating in its laws that portion of the
inhabitants of the Philippines which live in tribes as non-Christian tribes, as
distinguished from the common Filipinos which carry on a social and civilized
life, did not intended to establish a distinction based on the religious beliefs
of the individual, but, without dwelling on the difficulties which later would be
occasioned by the phrase, adopted the expression which the Spanish
legislation employed to designate the uncivilized portion of the inhabitants of
the Philippines.
The phrase 'non-Christian inhabitants' used in the provisions of articles 2077
and 2741 of Act No. 2657 (articles 2145 and 2759) should be understood as
equivalent to members of uncivilized tribes of the Philippines, not only
because this is the evident intention of the law, but because to give it its
lateral meaning would make the law null and unconstitutional as making
distinctions base the religion of the individual.
The Official Census of 1903, in the portion written by no less an authority than De.
David P. Barrows, then "Chief of the Bureau of non-Christian Tribes," divides the
population in the Christian or Civilized Tribes, and non-Christian or Wild Tribes.
(Census of the Philippine Islands [1903], vol. 1, pp. 411 et seq). The present Director
of the Census, Hon. Ignacio Villamor, writes that the classification likely to be used in
the Census now being taken is: "Filipinos and Primitive Filipinos." In a Pronouncing
Gazetteer and Geographical Dictionary of the Philippine Islands, prepared in the
Bureau of Insular Affairs, War Department, a sub-division under the title non-Christian
tribes is, "Physical and Political Characteristics of the non-Christian Tribes," which
sufficiently shows that the terms refers to culture and not to religion.
In resume, therefore, the Legislature and the Judiciary, inferentially, and different
executive officials, specifically, join in the proposition that the term "non-Christian"
refers, not to religious belief, but, in a way , to geographical area, and, more directly,
to natives of the Philippine Islands of a law grade of civilization, usually living in tribal
relationship apart from settled communities.
E. THE MANGUIANES.
The so-called non-Christians are in various state approaching civilization. The
Philippine Census of 1903 divided them into four classes. Of the third class, are the
Manguianes (or Mangyans) of Mindoro.
Of the derivation of the name "Manguian" Dr. T. H. Pardo de Tavera in his Etimilogia
de los nombres de Rozas de Filipinas, says:
In Tagalog, Bicol, and Visaya, Manguian signifies "savage," "mountainer,"
"pagan," "negro." It may be that the use of this word is applicable to a great
number of Filipinos, but nevertheless it has been applied only to certain
inhabitants of Mindoro. Even in primitive times without doubt this name was
given to those of that island who bear it to-day, but its employed in three
Filipino languages shows that the radical ngian had in all these languages a
sense to-day forgotten. In Pampango this ending still exists and signifies
"ancient," from which we can deduce that the name was applied to men
considered to be the ancient inhabitants, and that these men were pushed
back into the interior by the modern invaders, in whose language they were
called the "ancients."
The Manguianes are very low in culture. They have considerable Negrito blood and
have not advanced beyond the Negritos in civilization. They are a peaceful, timid,
primitive, semi-nomadic people. They number approximately 15,000. The
manguianes have shown no desire for community life, and, as indicated in the
preamble to Act No. 547, have not progressed sufficiently in civilization to make it
practicable to bring them under any form of municipal government. (See Census of
the Philippine (Islands [1903], vol. I, pp. 22, 23, 460.)
III. COMPARATIVE — THE AMERICAN INDIANS.
Reference was made in the Presidents' instructions to the Commission to the policy
adopted by the United States for the Indian Tribes. The methods followed by the
Government of the Philippines Islands in its dealings with the so-called non-Christian
people is said, on argument, to be practically identical with that followed by the United
States Government in its dealings with the Indian tribes. Valuable lessons, it is
insisted, can be derived by an investigation of the American-Indian policy.
From the beginning of the United States, and even before, the Indians have been
treated as "in a state of pupilage." The recognized relation between the Government
of the United States and the Indians may be described as that of guardian and ward.
It is for the Congress to determine when and how the guardianship shall be
terminated. The Indians are always subject to the plenary authority of the United
States.
Chief Justice Marshall in his opinion in Worcester vs. Georgia, hereinbefore
mentioned, tells how the Congress passed an Act in 1819 "for promoting those
humane designs of civilizing the neighboring Indians." After quoting the Act, the
opinion goes on — "This act avowedly contemplates the preservation of the Indian
nations as an object sought by the United States, and proposes to effect this object
by civilizing and converting them from hunters into agriculturists."
A leading case which discusses the status of the Indians is that of the United
States vs. Kagama ([1886], 118 U.S., 375). Reference is herein made to the clause of
the United States Constitution which gives Congress "power to regulate commerce
with foreign nations, and among the several States, and with the Indian tribes." The
court then proceeds to indicate a brief history of the position of the Indians in the
United States (a more extended account of which can be found in Marshall's opinion
in Worcester vs. Georgia, supra), as follows:
The relation of the Indian tribes living within the borders of the United States,
both before and since the Revolution, to the people of the United States, has
always been an anomalous one and of a complex character.
Following the policy of the European Governments in the discovery of
American towards the Indians who were found here, the colonies before the
Revolution and the States and the United States since, have recognized in
the Indians a possessory right to the soil over which they roamed and
hunted and established occasional villages. But they asserted an ultimate
title in the land itself, by which the Indian tribes were forbidden to sell or
transfer it to other nations or peoples without the consent of this paramount
authority. When a tribe wished to dispose of its lands, or any part of it, or the
State or the United States wished to purchase it, a treaty with the tribe was
the only mode in which this could be done. The United States recognized no
right in private persons, or in other nations, to make such a purchase by
treaty or otherwise. With the Indians themselves these relation are equally
difficult to define. They were, and always have been, regarded as having a
semi-independent position when they preserved their tribal relations; not as
States, not as nation not a possessed of the fall attributes of sovereignty, but
as a separate people, with the power of regulating their internal and social
relations, and thus far not brought under the laws of the Union or of the State
within whose limits they resided.
The opinion then continues:
It seems to us that this (effect of the law) is within the competency of
Congress. These Indian tribes are the wards of the nation. The are
communities dependent on the United States. dependent largely for their
daily food. Dependent for their political rights. They owe no allegiance to the
States, and receive from the no protection. Because of the local ill feeling,
the people of the States where they are found are often their deadliest
enemies. From their very weakness and helplessness, so largely due to the
course of dealing of the Federal Government with them and the treaties in
which it has been promised, there arise the duty of protection, and with it the
power. This has always been recognized by the Executive and by Congress,
and by this court, whenever the question has arisen . . . The power of the
General Government over these remnants of race once powerful, now weak
and diminished in numbers, is necessary to their protection, as well as to the
safety of those among whom they dwell. it must exist in that government,
because it never has existed anywhere else, because the theater of its
exercise is within the geographical limits of the United States, because it has
never been denied, and because it alone can enforce its laws on all the
tribes.
In the later case of United States vs. Sandoval ([1913], 231 U.S., 28) the question to
be considered was whether the status of the Pueblo Indians and their lands was such
that Congress could prohibit the introduction of intoxicating liquor into those lands
notwithstanding the admission of New Mexico to statehood. The court looked to the
reports of the different superintendent charged with guarding their interests and
founds that these Indians are dependent upon the fostering care and protection of the
government "like reservation Indians in general." Continuing, the court said "that
during the Spanish dominion, the Indians of the pueblos were treated as wards
requiring special protection, where subjected to restraints and official supervisions in
the alienation of their property." And finally, we not the following: "Not only does the
Constitution expressly authorize Congress to regulate commerce with the Indians
tribes, but long-continued legislative and executive usage and an unbroken current of
judicial decisions have attributed to the United States as a superior and civilized
nation the power and the duty of exercising a fostering care and protection over all
dependent Indian communities within its borders, whether within its original territory or
territory subsequently acquired, and whether within or without the limits of a state."
With reference to laws affecting the Indians, it has been held that it is not within the
power of the courts to overrule the judgment of Congress. For very good reason, the
subject has always been deemed political in nature, not subject to the jurisdiction of
the judicial department of the government. (Matter of Heff [1905], 197 U.S., 488;
U.S. vs. Celestine [1909], 215 U.S., 278; U.S. vs. Sandoval, supra;
Worcester vs. Georgia, supra; U.S. vs. Rogers [1846], 4 How., 567; the Cherokee
Tobacco [1871], 11 Wall, 616; Roff vs. Burney [1897], 168 U.S., 218; Thomas vs.Gay
[1898], 169 U.S.., 264; Lone Wolf vs. Hitchcock[1903], 187 U.S., 553;
Wallace vs. Adams [1907], 204 U.S., 415; Conley vs. Bollinger [1910], 216 U.S., 84;
Tiger vs. Western Invest. Co. [1911], 221 U.S., 286; U.S. vs. Lane [1913], 232 U.S..,
598; Cyr vs. Walker (1911], 29 Okla, 281; 35 L.R.A. [N. S.], 795.) Whenever,
therefore, the United States sets apart any public land as an Indian reservation, it has
full authority to pass such laws and authorize such measures as may be necessary to
give to the Indians thereon full protection in their persons and property.
(U.S. vs.Thomas [1894], 151 U.S., 577.)
All this borne out by long-continued legislative and executive usage, and an unbroken
line of judicial decisions.
The only case which is even remotely in point and which, if followed literally, might
result in the issuance of habeas corpus, is that of United States vs. Crook ([1879],
Fed. Cas. No. 14891). This was a hearing upon return to a writ of habeas
corpus issued against Brigadier General George Crook at the relation of Standing
Bear and other Indians, formerly belonging to the Ponca Tribe of Indians. The petition
alleged in substance that the relators are Indians who have formerly belonged to the
Ponca tribe of Indians, now located in the Indian Territory; that they had some time
previously withdrawn from the tribe, and completely severed their tribal relations
therewith, and had adopted the general habits of the whites, and were then
endeavoring to maintain themselves by their own exertions, and without aid or
assistance from the general government; that whilst they were thus engaged, and
without being guilty of violating any of the laws of the United States, they were
arrested and restrained of their liberty by order of the respondent, George Crook. The
substance of the return to the writ was that the relators are individual members of,
and connected with, the Ponca tribe of Indians; that they had fled or escaped form a
reservation situated some place within the limits of the Indian Territory — had
departed therefrom without permission from the Government; and, at the request of
the Secretary of the Interior, the General of the Army had issued an order which
required the respondent to arrest and return the relators to their tribe in the Indian
Territory, and that, pursuant to the said order, he had caused the relators to be
arrested on the Omaha Indian Territory.
The first question was whether an Indian can test the validity of an illegal
imprisonment by habeas corpus. The second question, of much greater importance,
related to the right of the Government to arrest and hold the relators for a time, for the
purpose of being returned to the Indian Territory from which it was alleged the Indian
escaped. In discussing this question, the court reviewed the policy the Government
had adopted in its dealing with the friendly tribe of Poncase. Then, continuing, the
court said: "Laws passed for the government of the Indian country, and for the
purpose of regulating trade and intercourse with the Indian tribes, confer upon certain
officers of the Government almost unlimited power over the persons who go upon the
reservations without lawful authority . . . Whether such an extensive discretionary
power is wisely vested in the commissioner of Indian affairs or not , need not be
questioned. It is enough to know that the power rightfully exists, and, where existing,
the exercise of the power must be upheld." The decision concluded as follows:
The reasoning advanced in support of my views, leads me to conclude:
1. that an Indian is a 'person' within the meaning of the laws of the United
States, and has, therefore, the right to sue out a writ of habeas corpus in a
federal court, or before a federal judge, in all cases where he may be
confined or in custody under color of authority of the United States or where
he is restrained of liberty in violation of the constitution or laws of the United
States.
2. That General George Crook, the respondent, being commander of the
military department of the Platte, has the custody of the relators, under color
of authority of the United States, and in violation of the laws therefore.
3. That n rightful authority exists for removing by force any of the relators to
the Indian Territory, as the respondent has been directed to do.
4. that the Indians possess the inherent right of expatriation, as well as the
more fortunate white race, and have the inalienable right to "life, liberty, and
the pursuit of happiness," so long as they obey the laws and do not trespass
on forbidden ground. And,
5. Being restrained of liberty under color of authority of the United States,
and in violation of the laws thereof, the relators must be discharged from
custody, and it is so ordered.
As far as the first point is concerned, the decision just quoted could be used as
authority to determine that Rubi, the Manguian petitioner, a Filipino, and a citizen of
the Philippine Islands, is a "person" within the meaning of the Habeas Corpus Act,
and as such, entitled to sue out a writ in the Philippine courts. (See also In re Race
Horse [1895], 70 Fed., 598.) We so decide.
As to the second point the facts in the Standing Bear case an the Rubi case are not
exactly identical. But even admitting similarity of facts, yet it is known to all that Indian
reservations do exist in the United States, that Indians have been taken from different
parts of the country and placed on these reservation, without any previous
consultation as to their own wishes, and that, when once so located, they have been
made to remain on the reservation for their own good and for the general good of the
country. If any lesson can be drawn form the Indian policy of the United States, it is
that the determination of this policy is for the legislative and executive branches of the
government and that when once so decided upon, the courts should not interfere to
upset a carefully planned governmental system. Perhaps, just as may forceful
reasons exists for the segregation as existed for the segregation of the different
Indian tribes in the United States.
IV. CONSTITUTIONAL QUESTIONS.
A. DELEGATION OF LEGISLATIVE POWER.
The first constitutional objection which confronts us is that the Legislature could not
delegate this power to provincial authorities. In so attempting, it is contended, the
Philippine Legislature has abdicated its authority and avoided its full responsibility.
That the maxim of Constitutional Law forbidding the delegation of legislative power
should be zealously protected, we agree. An understanding of the rule will, however,
disclose that it has not bee violated in his instance.
The rule has nowhere been better stated than in the early Ohio case decided by
Judge Ranney, and since followed in a multitude of case, namely: "The true
distinction therefore 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 later no valid objection can be made." (Cincinnati, W. & Z.
R. Co. vs. Comm'rs. Clinton County [1852], 1 Ohio S.t, 88.) Discretion, as held by
Chief Justice Marshall in Wayman vs. Southard ([1825], 10 Wheat., 1) may be
committed by the Legislature to an executive department or official. The Legislature
may make decisions of executive departments of subordinate official thereof, to whom
t has committed the execution of certain acts, final on questions of fact.
(U.S. vs. Kinkead [1918], 248 Fed., 141.) The growing tendency in the decision is to
give prominence to the "necessity" of the case.
Is not all this exactly what the Legislature has attempted to accomplish by the
enactment of section 21454 of the Administrative Code? Has not the Legislature
merely conferred upon the provincial governor, with the approval of the provincial
board and the Department Head, discretionary authority as to the execution of the
law? Is not this "necessary"?
The case of West vs. Hitchock, ([1906], 205 U.S., 80) was a petition for mandamus to
require the Secretary of the Interior to approve the selection and taking of one
hundred and sixty acres by the relator out of the lands ceded to the United States by
the Wichita and affiliated bands of Indians. Section 463 of the United States Revised
Statutes provided: "The Commissioner of Indian Affairs shall, under the direction of
the Secretary of the Interior, and agreeably to such regulations as the President may
prescribe, have the management of all Indian affairs, and of all matters arising out to
the Indian relations." Justice Holmes said: "We should hesitate a good deal,
especially in view of the long established practice of the Department, before saying
that this language was not broad enough to warrant a regulation obviously made for
the welfare of the rather helpless people concerned. The power of Congress is not
doubted. The Indians have been treated as wards of the nation. Some such
supervision was necessary, and has been exercised. In the absence of special
provisions naturally it would be exercised by the Indian Department." (See also as
corroborative authority, it any is needed, Union Bridge Co. vs. U.S. [1907], 204 U.S..,
364, reviewing the previous decisions of the United States Supreme Court:
U.S. vs. Lane [1914], 232 U.S., 598.)
There is another aspect of the question, which once accepted, is decisive. An
exception to the general rule. sanctioned by immemorial practice, permits the central
legislative body to delegate legislative powers to local authorities. The Philippine
Legislature has here conferred authority upon the Province of Mindoro, to be
exercised by the provincial governor and the provincial board.
Who but the provincial governor and the provincial board, as the official
representatives of the province, are better qualified to judge "when such as course is
deemed necessary in the interest of law and order?" As officials charged with the
administration of the province and the protection of its inhabitants, who but they are
better fitted to select sites which have the conditions most favorable for improving the
people who have the misfortune of being in a backward state?
Section 2145 of the Administrative Code of 1917 is not an unlawful delegation of
legislative power by the Philippine Legislature to provincial official and a department
head.
B. RELIGIOUS DISCRIMINATION
The attorney de officio, for petitioners, in a truly remarkable brief, submitted on behalf
of his unknown clients, says that — "The statute is perfectly clear and unambiguous.
In limpid English, and in words as plain and unequivocal as language can express, it
provides for the segregation of 'non-Christians' and none other." The inevitable result,
them, is that the law "constitutes an attempt by the Legislature to discriminate
between individuals because of their religious beliefs, and is, consequently,
unconstitutional."
Counsel's premise once being conceded, his arguments is answerable — the
Legislature must be understood to mean what it has plainly expressed; judicial
construction is then excluded; religious equality is demanded by the Organic Law; the
statute has violated this constitutional guaranty, and Q. E. D. is invalid. But, as
hereinbefore stated, we do not feel free to discard the long continued meaning given
to a common expression, especially as classification of inhabitants according to
religious belief leads the court to what it should avoid, the nullification of legislative
action. We hold that the term "non-Christian" refers to natives of the Philippines
Islands of a low grade of civilization, and that section 2145 of the Administrative Code
of 1917, does not discriminate between individuals an account of religious
differences.
C. LIBERTY; DUE PROCESS OF LAW; EQUAL PROTECTION OF THE LAWS.
The third constitutional argument is grounded on those portions of the President's
instructions of to the Commission, the Philippine Bill, and the Jones Law, providing
"That no law shall be enacted in said Islands which shall deprive any person of life,
liberty, or property without due process of law, or deny to any person therein the
equal protection of the laws." This constitutional limitation is derived from the
Fourteenth Amendment to the United States Constitution — and these provisions, it
has been said "are universal in their application, to all persons within the territorial
jurisdiction, without regard to any differences of race, of color, or of nationality." (Yick
Wo vs. Hopkins [1886], 118 U.S., 356.) The protection afforded the individual is then
as much for the non-Christian as for the Christian.
The conception of civil liberty has been variously expressed thus:
Every man may claim the fullest liberty to exercise his faculties, compatible
with the possession of like liberty by every other. (Spencer, Social Statistics,
p. 94.)
Liberty is the creature of law, essentially different from that authorized
licentiousness that trespasses on right. That authorized licentiousness that
trespasses on right. It is a legal and a refined idea, the offspring of high
civilization, which the savage never understood, and never can understand.
Liberty exists in proportion to wholesome restraint; the more restraint on
others to keep off from us, the more liberty we have . . . that man is free who
is protected from injury. (II Webster's Works, p. 393.)
Liberty consists in the ability to do what one caught to desire and in not
being forced to do what one ought not do desire. (Montesque, spirit of the
Laws.)
Even liberty itself, the greatest of all rights, is no unrestricted license to ac
according to one's own will. It is only freedom from restraint under conditions
essential to the equal enjoyment of the same right by others. (Field, J., in
Crowley vs. Christensen [1890], 137 U.S., 86.)
Liberty does not import "an absolute right in each person to be, at all times
and in all circumstances, wholly freed from restraint. There are manifold
restraints to which every person is necessarily subject for the common good.
On any other basis, organized society could not exist with safety to its
members. Society based on the rule that each one is a law unto himself
would soon be confronted with disorder and anarchy. Real liberty for all
 could not exist under the operation of a principle which recognizes the right
of each individual person to use his own, whether in respect of his person or
his property, regardless of the injury that may be done to others . . . There is,
of course, a sphere with which the individual may asserts the supremacy of
his own will, and rightfully dispute the authority of any human government —
especially of any free government existing under a written Constitution — to
interfere with the exercise of that will. But it is equally true that in very well-
ordered society charged with the duty of conserving the safety of its
members, the rights of the individual in respect of his liberty may at times,
under the pressure of great dangers, be subjected to such restraint to be
enforced by reasonable regulations, as the safety of the general public may
demand." (Harlan, J., In Jacobson vs. Massachusetts [1905] 197 U.S., 11.)
Liberty is freedom to do right and never wrong; it is ever guided by reason
and the upright and honorable conscience of the individual. (Apolinario
Mabini.)
Civil Liberty may be said to mean that measure of freedom which may be enjoyed in a
civilized community, consistently with the peaceful enjoyment of like freedom in
others. The right to Liberty guaranteed by the Constitution includes the right to exist
and the right to be free from arbitrary personal restraint or servitude. The term cannot
be dwarfed into mere freedom from physical restraint of the person of the citizen, but
is deemed to embrace the right of man to enjoy the faculties with which he has been
endowed by this Creator, subject only to such restraints as are necessary for the
common welfare. As enunciated in a long array of authorities including epoch-making
decisions of the United States Supreme Court, Liberty includes the right of the
citizens to be free to use his faculties in all lawful ways; to live an work where he will;
to earn his livelihood by an lawful calling; to pursue any avocations, an for that
purpose. to enter into all contracts which may be proper, necessary, and essential to
his carrying out these purposes to a successful conclusion. The chief elements of the
guaranty are the right to contract, the right to choose one's employment, the right to
labor, and the right of locomotion.
In general, it may be said that Liberty means the opportunity to do those things which
are ordinarily done by free men. (There can be noted Cummings vs. Missouri [1866],
4 Wall, 277; Wilkinson vs. Leland [1829], 2 Pet., 627; Williams vs. Fears [1900], 179
U.S., 274; Allgeyer vs. Louisiana [1896], 165, U.S., 578; State vs. Kreutzberg [1902],
114 Wis., 530. See 6 R.C.L., 258, 261.)
One thought which runs through all these different conceptions of Liberty is plainly
apparent. It is this: "Liberty" as understood in democracies, is not license; it is "Liberty
regulated by law." Implied in the term is restraint by law for the good of the individual
and for the greater good of the peace and order of society and the general well-being.
No man can do exactly as he pleases. Every man must renounce unbridled license.
The right of the individual is necessarily subject to reasonable restraint by general law
for the common good. Whenever and wherever the natural rights of citizen would, if
exercises without restraint, deprive other citizens of rights which are also and equally
natural, such assumed rights must yield to the regulation of law. The Liberty of the
citizens may be restrained in the interest of the public health, or of the public order
and safety, or otherwise within the proper scope of the police power. (See
Hall vs. Geiger-Jones [1916], 242 U.S., 539; Hardie-Tynes Manufacturing
Co. vs. Cruz [1914], 189 Al., 66.)
None of the rights of the citizen can be taken away except by due process of law.
Daniel Webster, in the course of the argument in the Dartmouth College Case before
the United States Supreme Court, since a classic in forensic literature, said that the
meaning of "due process of law" is, that "every citizen shall hold his life, liberty,
property, an immunities under the protection of the general rules which govern
society." To constitute "due process of law," as has been often held, a judicial
proceeding is not always necessary. In some instances, even a hearing and notice
are not requisite a rule which is especially true where much must be left to the
discretion of the administrative officers in applying a law to particular cases. (See
McGehee, Due Process of Law, p. 371.) Neither is due process a stationary and blind
sentinel of liberty. "Any legal proceeding enforced by public authority, whether
sanctioned by age and customs, or newly devised in the discretion of the legislative
power, in furtherance of the public good, which regards and preserves these
principles of liberty and justice, must be held to be due process of law."
(Hurtado vs.California [1883], 110, U.S., 516.) "Due process of law" means simply . . .
"first, that there shall be a law prescribed in harmony with the general powers of the
legislative department of the Government; second, that this law shall be reasonable in
its operation; third, that it shall be enforced according to the regular methods of
procedure prescribed; and fourth, that it shall be applicable alike to all the citizens of
the state or to all of a class." (U.S. vs. Ling Su Fan [1908], 10 Phil., 104, affirmed on
appeal to the United States Supreme Court. 1) "What is due process of law depends
on circumstances. It varies with the subject-matter and necessities of the situation."
(Moyer vs. Peablody [1909], 212 U. S., 82.)
The pledge that no person shall be denied the equal protection of the laws is not
infringed by a statute which is applicable to all of a class. The classification must have
a reasonable basis and cannot be purely arbitrary in nature.
We break off with the foregoing statement, leaving the logical deductions to be made
later on.
D. SLAVERY AND INVOLUNTARY SERVITUDE.
The fourth constitutional contention of petitioner relates to the Thirteen Amendment to
the United States Constitution particularly as found in those portions of Philippine
Organic Law providing "That slavery shall not exist in said Islands; nor shall
involuntary servitude exist except as a punishment for crime whereof the party shall
have been duly convicted." It is quite possible that the Thirteenth Amendment, since
reaching to "any place subject to" the "jurisdiction" of the United States, has force in
the Philippine. However this may be, the Philippine Legislature has, by adoption, with
necessary modifications, of sections 268 to 271 inclusive of the United States
Criminal Code, prescribed the punishment for these crimes. Slavery and involuntary
servitude, together wit their corollary, peonage, all denote "a condition of enforced,
compulsory service of one to another." (Hodges vs. U.S. [1906], 203 U.S., 1.) The
term of broadest scope is possibly involuntary servitude. It has been applied to any
servitude in fact involuntary, no matter under what form such servitude may have
been disguised. (Bailey vs. Alabama [1910], 219 U.S., 219.)
So much for an analysis of those constitutional provisions on which petitioners rely for
their freedom. Next must come a description of the police power under which the
State must act if section 2145 is to be held valid.
E. THE POLICE POWER.
Not attempting to phrase a definition of police power, all that it is necessary to note at
this moment is the farreaching scope of the power, that it has become almost
possible to limit its weep, and that among its purposes is the power to prescribe
regulations to promote the health, peace, morals, education, and good order of the
people, and to legislate so as to increase the industries of the State, develop its
resources and add to is wealth and prosperity. (See Barbier vs. Connolly [1884], 113
U.S., 27.) What we are not interested in is the right of the government to restrain
liberty by the exercise of the police power.
"The police power of the State," one court has said, . . . "is a power coextensive with
self-protection, and is not inaptly termed the 'law of overruling necessity.' It may be
said to be that inherent and plenary power in the State which enables it to prohibit all
things hurtful to the comfort, safety and welfare of society." (Lake View vs. Rose Hill
Cemetery Co. [1873], 70 Ill., 191.) Carried onward by the current of legislation, the
judiciary rarely attempt to dam the on rushing power of legislative discretion, provided
the purposes of the law do not go beyond the great principles that mean security for
the public welfare or do not arbitrarily interfere with the right of the individual.
The Government of the Philippine Islands has both on reason and authority the right
to exercise the sovereign police power in the promotion of the general welfare and the
public interest. "There can be not doubt that the exercise of the police power of the
Philippine Government belongs to the Legislature and that this power is limited only
by the Acts of Congress and those fundamental principles which lie at the foundation
of all republican forms of government." (Churchill and Tait vs. Rafferty [1915], 32
Phil., 580; U.S. vs. Pompeya [1915], 31 Phil., 245.)
With the foregoing approximation of the applicable basic principles before us, before
finally deciding whether any constitutional provision has indeed been violated by
section 2145 of the Administrative Code, we should endeavor to ascertain the
intention of the Legislature in enacting this section. If legally possible, such legislative
intention should be effectuated.
F. LEGISLATIVE INTENT.
The preamble of the resolution of the provincial board of Mindoro which set apart the
Tigbao reservation, it will be remembered, assigned as reasons fort the action, the
following: (1) The failure of former attempts for the advancement of the non-Christian
people of the province; and (2) the only successfully method for educating the
Manguianes was to oblige them to live in a permanent settlement. The Solicitor-
General adds the following; (3) The protection of the Manguianes; (4) the protection
of the public forests in which they roam; (5) the necessity of introducing civilized
customs among the Manguianes.
The present Secretary of the Interior says of the Tigbao reservation and of the
motives for its selection, the following:
To inform himself of the conditions of those Manguianes who were taken
together to Tigbao, the Secretary of the Interior on June 10 to 13, 1918,
made a trip to the place. There he found that the site selected is a good one;
that creditable progress has been made in the clearing of forests,
construction of buildings, etc., that there appears to be encouraging reaction
by the boys to the work of the school the requirements of which they appear
to meet with enthusiastic interest after the first weeks which are necessarily
a somewhat trying period for children wholly unaccustomed to orderly
behaviour and habit of life. He also gathered the impression that the results
obtained during the period of less than one year since the beginning of the
institution definitely justify its continuance and development.
Of course, there were many who were protesting against that segregation.
Such was naturally to be expected. But the Secretary of the Interior, upon
his return to Manila, made the following statement to the press:
"It is not deemed wise to abandon the present policy over those
who prefer to live a nomadic life and evade the influence of
civilization. The Government will follow its policy to organize them
into political communities and to educate their children with the
object of making them useful citizens of this country. To permit
them to live a wayfaring life will ultimately result in a burden to the
state and on account of their ignorance, they will commit crimes
and make depredation, or if not they will be subject to involuntary
servitude by those who may want to abuse them."
The Secretary of the Interior, who is the official charged with the supervision of all the
non-Christian people, has adopted as the polaris of his administration — "the
advancement of the non-Christian elements of our population to equality and
unification with the highly civilized Christian inhabitants." This is carried on by the
adoption of the following measures:
(a) Pursuance of the closer settlement policy whereby people of
seminomadic race are induced to leave their wild habitat and settle in
organized communities.
(b) The extension of the public school system and the system of public
health throughout the regions inhabited by the non-Christian people.
(c) The extention of public works throughout the Mohammedan regions to
facilitate their development and the extention of government control.
(d) Construction of roads and trials between one place and another among
non-Christians, to promote social and commercial intercourse and maintain
amicable relations among them and with the Christian people.
 (e) Pursuance of the development of natural economic resources, especially
agriculture.
( f ) The encouragement of immigration into, and of the investment of private
capital in, the fertile regions of Mindanao and Sulu.
The Secretary adds:
To attain the end desired, work of a civilizing influence have been continued
among the non-Christian people. These people are being taught and guided
to improve their living conditions in order that they may fully appreciate the
benefits of civilization. Those of them who are still given to nomadic habits
are being persuaded to abandon their wild habitat and settle in organized
settlements. They are being made to understand that it is the purpose of the
Government to organize them politically into fixed and per manent
communities, thus bringing them under the control of the Government, to aid
them to live and work, protect them from involuntary servitude and abuse,
educate their children, and show them the advantages of leading a civilized
life with their civilized brothers. In short, they are being impressed with the
purposes and objectives of the Government of leading them to economic,
social, and political equality, and unification with the more highly civilized
inhabitants of the country. (See Report of the Department for 1917.)
The fundamental objective of governmental policy is to establish friendly relations with
the so-called non-Christians, and to promote their educational, agricultural, industrial,
and economic development and advancement in civilization. (Note Acts Nos. 2208,
2404, 2444.) Act No. 2674 in reestablishing the Bureau of non-Christian Tribes,
defines the aim of the Government towards the non-Christian people in the following
unequivocal terms:
It shall be the duty of the Bureau of non-Christian Tribes to continue the
work for advancement and liberty in favor of the region inhabited by non-
Christian Filipinos and foster by all adequate means and in a systematical,
rapid, and complete manner the moral, material, economic, social, and
political development of those regions, always having in view the aim of
rendering permanent the mutual intelligence between, and complete fusion
of, all the Christian and non-Christian elements populating the provinces of
the Archipelago. (Sec. 3.)
May the Manguianes not be considered, as are the Indians in the United States,
proper wards of the Filipino people? By the fostering care of a wise Government, may
not these unfortunates advance in the "habits and arts of civilization?" Would it be
advisable for the courts to intrude upon a plan, carefully formulated, and apparently
working out for the ultimate good of these people?
In so far as the Manguianes themselves are concerned, the purpose of the
Government is evident. Here, we have on the Island of Mindoro, the Manguianes,
leading a nomadic life, making depredations on their more fortunate neighbors,
uneducated in the ways of civilization, and doing nothing for the advancement of the
Philippine Islands. What the Government wished to do by bringing than into a
reservation was to gather together the children for educational purposes, and to
improve the health and morals — was in fine, to begin the process of civilization. this
method was termed in Spanish times, "bringing under the bells." The same idea
adapted to the existing situation, has been followed with reference to the Manguianes
and other peoples of the same class, because it required, if they are to be improved,
that they be gathered together. On these few reservations there live under restraint in
some cases, and in other instances voluntarily, a few thousands of the uncivilized
people. Segregation really constitutes protection for the manguianes.
Theoretically, one may assert that all men are created free and equal. Practically, we
know that the axiom is not precisely accurate. The Manguianes, for instance, are not
free, as civilized men are free, and they are not the equals of their more fortunate
brothers. True, indeed, they are citizens, with many but not all the rights which
citizenship implies. And true, indeed, they are Filipinos. But just as surely, the
Manguianes are citizens of a low degree of intelligence, and Filipinos who are a drag
upon the progress of the State.
In so far as the relation of the Manguianes to the State is concerned, the purposes of
the Legislature in enacting the law, and of the executive branch in enforcing it, are
again plain. Settlers in Mindoro must have their crops and persons protected from
predatory men, or they will leave the country. It is no argument to say that such
crimes are punished by the Penal Code, because these penalties are imposed after
commission of the offense and not before. If immigrants are to be encouraged to
develop the resources of the great Islands of Mindoro, and its, as yet, unproductive
regions, the Government must be in a position to guarantee peace and order.
Waste lands do not produce wealth. Waste people do not advance the interest of the
State. Illiteracy and thriftlessness are not conducive to homogeneity. The State to
protect itself from destruction must prod on the laggard and the sluggard. The great
law of overwhelming necessity is all convincing.
To quote again from the instructive memorandum of the Secretary of the Interior:
Living a nomadic and a wayfaring life and evading the influence of
civilization, they (the manguianes) are engaged in the works of destruction
— burning and destroying the forests and making illegal caiñgins thereon.
Not bringing any benefit to the State but instead injuring and damaging its
interests, what will ultimately become of these people with the sort of liberty
they wish to preserve and for which they are now fighting in court? They will
ultimately become a heavy burden to the State and on account of their
ignorance they will commit crimes and make depredations, or if not they will
be subjected to involuntary servitude by those who may want to abuse them.
There is no doubt in my mind that this people a right conception of liberty
and does not practice liberty in a rightful way. They understand liberty as the
right to do anything they will — going from one place to another in the
mountains, burning and destroying forests and making illegal caiñgins
thereon.
Not knowing what true liberty is and not practising the same rightfully, how
can they allege that they are being deprived thereof without due process of
law?
xxx xxx xxx
But does the Constitutional guaranty that 'no person shall be deprived of his
liberty without due process of law' apply to a class of persons who do not
have a correct idea of what liberty is and do not practise liberty in a rightful
way?
To say that it does will mean to sanction and defend an erroneous idea of
such class of persons as to what liberty is. It will mean, in the case at bar,
that the Government should not adopt any measures looking to the welfare
and advancement of the class of persons in question. It will mean that this
people should be let along in the mountains and in a permanent state of
savagery without even the remotest hope of coming to understand liberty in
its true and noble sense.
In dealing with the backward population, like the Manguianes, the
Government has been placed in the alternative of either letting them alone or
guiding them in the path of civilization. The latter measure was adopted as
the one more in accord with humanity and with national conscience.
xxx xxx xxx
The national legislation on the subject of non-Christian people has tended
more and more towards the education and civilization of such people and
fitting them to be citizens. The progress of those people under the tutelage
of the Government is indeed encouraging and the signs of the times point to
a day which is not far distant when they will become useful citizens. In the
light of what has already been accomplished which has been winning the
gratitude of most of the backward people, shall we give up the noble work
simply because a certain element, believing that their personal interests
would be injured by such a measure has come forward and challenged the
authority of the Government to lead this people in the pat of civilization?
Shall we, after expending sweat, treasure, and even blood only to redeem
this people from the claws of ignorance and superstition, now willingly retire
because there has been erroneously invoked in their favor that
Constitutional guaranty that no person shall be deprived of his liberty without
due process of law? To allow them to successfully invoke that Constitutional
guaranty at this time will leave the Government without recourse to pursue
the works of civilizing them and making them useful citizens. They will thus
left in a permanent state of savagery and become a vulnerable point to
attack by those who doubt, nay challenge, the ability of the nation to deal
with our backward brothers.
The manguianes in question have been directed to live together at Tigbao.
There they are being taught and guided to improve their living conditions.
They are being made to understand that they object of the government is to
organize them politically into fixed and permanent communities. They are
being aided to live and work. Their children are being educated in a school
especially established for them. In short, everything is being done from them
in order that their advancement in civilization and material prosperity may be
assured. Certainly their living together in Tigbao does not make them slaves
or put them in a condition compelled to do services for another. They do not
work for anybody but for themselves. There is, therefore, no involuntary
servitude.
But they are compelled to live there and prohibited from emigrating to some
other places under penalty of imprisonment. Attention in this connection is
invited to the fact that this people, living a nomadic and wayfaring life, do not
have permanent individual property. They move from one place to another
as the conditions of living warrants, and the entire space where they are
roving about is the property of the nation, the greater part being lands of
public domain. Wandering from one place to another on the public lands,
why can not the government adopt a measure to concentrate them in a
certain fixed place on the public lands, instead of permitting them to roam all
over the entire territory? This measure is necessary both in the interest of
the public as owner of the lands about which they are roving and for the
proper accomplishment of the purposes and objectives of the government.
For as people accustomed to nomadic habit, they will always long to return
to the mountains and follow a wayfaring life, and unless a penalty is
provinced for, you can not make them live together and the noble intention of
the Government of organizing them politically will come to naught.
G. APPLICATION AND CONCLUSION.
Our exhaustive study should have left us in a position to answer specific objections
and to reach a general conclusion.
In the first place, it is argued that the citizen has the right, generally speaking, to go
where he pleases. Could be not, however, be kept away from certain localities ? To
furnish an example from the Indian legislation. The early Act of Congress of 1802 (2
U.S. Stat. at L., p. 141) Indian reservation. Those citizens certainly did not possess
absolute freedom of locomotion. Again the same law provided for the apprehension of
marauding Indians. Without any doubt, this law and other similar were accepted and
followed time and again without question.
It is said that, if we hold this section to be constitutional, we leave this weak and
defenseless people confined as in a prison at the mercy of unscrupulous official.
What, it is asked, would be the remedy of any oppressed Manguian? The answer
would naturally be that the official into whose hands are given the enforcement of the
law would have little or not motive to oppress these people; on the contrary, the
presumption would all be that they would endeavor to carry out the purposes of the
law intelligently and patriotically. If, indeed, they did ill-treat any person thus confined,
there always exists the power of removal in the hands of superior officers, and the
courts are always open for a redress of grievances. When, however, only the validity
of the law is generally challenged and no particular case of oppression is called to the
attention of the courts, it would seems that the Judiciary should not unnecessarily
hamper the Government in the accomplishment of its laudable purpose.
The question is above all one of sociology. How far, consistently with freedom, may
the right and liberties of the individual members of society be subordinated to the will
of the Government? It is a question which has assailed the very existence of
government from the beginning of time. Now purely an ethical or philosophical
subject, nor now to be decided by force, it has been transferred to the peaceful forum
of the Judiciary. In resolving such an issue, the Judiciary must realize that the very
existence of government renders imperatives a power to restrain the individual to
some extent, dependent, of course, on the necessities of the class attempted to be
benefited. As to the particular degree to which the Legislature and the Executive can
go in interfering with the rights of the citizen, this is, and for a along time to come will
be, impossible for the courts to determine.
The doctrines of laissez faire and of unrestricted freedom of the individual, as axioms
of economics and political theory, are of the past. The modern period has shown as
widespread belief in the amplest possible demonstration of governmental activity. The
courts unfortunately have sometimes seemed to trial after the other two branches of
the government in this progressive march.
Considered, therefore, purely as an exercise of the police power, the courts cannot
fairly say that the Legislature has exceeded its rightful authority. it is, indeed, an
unusual exercise of that power. But a great malady requires an equally drastic
remedy.
Further, one cannot hold that the liberty of the citizen is unduly interfered without
when the degree of civilization of the Manguianes is considered. They are restrained
for their own good and the general good of the Philippines. Nor can one say that due
process of law has not been followed. To go back to our definition of due process of
law and equal protection of the law, there exists a law ; the law seems to be
reasonable; it is enforced according to the regular methods of procedure prescribed;
and it applies alike to all of a class.
As a point which has been left for the end of this decision and which, in case of doubt,
would lead to the determination that section 2145 is valid. it the attitude which the
courts should assume towards the settled policy of the Government. In a late decision
with which we are in full accord, Gambles vs. Vanderbilt University (200
Southwestern Reporter, 510) the Chief Justice of the Supreme Court of Tennessee
writes:
We can seen objection to the application of public policy as a ratio decidendi. Every
really new question that comes before the courts is, in the last analysis, determined
on that theory, when not determined by differentiation of the principle of a prior case
or line of cases, or by the aid of analogies furnished by such prior case. In balancing
conflicting solutions, that one is perceived to tip the scales which the court believes
will best promote the public welfare in its probable operation as a general rule or
principle. But public policy is not a thing inflexible. No court is wise enough to forecast
its influence in all possible contingencies. Distinctions must be made from time to time
as sound reason and a true sense of justice may dictate."
Our attempt at giving a brief history of the Philippines with reference to the so-called
non-Christians has been in vain, if we fail to realize that a consistent governmental
policy has been effective in the Philippines from early days to the present. The idea to
unify the people of the Philippines so that they may approach the highest conception
of nationality. If all are to be equal before the law, all must be approximately equal in
intelligence. If the Philippines is to be a rich and powerful country, Mindoro must be
populated, and its fertile regions must be developed. The public policy of the
Government of the Philippine Islands is shaped with a view to benefit the Filipino
people as a whole. The Manguianes, in order to fulfill this governmental policy, must
be confined for a time, as we have said, for their own good and the good of the
country.
Most cautiously should the power of this court to overrule the judgment of the
Philippine Legislature, a coordinate branch, be exercised. The whole tendency of the
best considered case is toward non-interference on the part of the courts whenever
political ideas are the moving consideration. Justice Holmes, in one of the aphorisms
for which he is justly famous, said that "constitutional law, like other mortal
contrivances, has to take some chances." (Blinn vs.Nelson [1911], 222 U.S., 1.) If in
the final decision of the many grave questions which this case presents, the courts
must take "a chance," it should be with a view to upholding the law, with a view to the
effectuation of the general governmental policy, and with a view to the court's
performing its duty in no narrow and bigoted sense, but with that broad conception
which will make the courts as progressive and effective a force as are the other
departments of the Government.
We are of the opinion that action pursuant to section 2145 of the Administrative Code
does not deprive a person of his liberty without due process of law and does not deny
to him the equal protection of the laws, and that confinement in reservations in
accordance with said section does not constitute slavery and involuntary servitude.
We are further of the opinion that section 2145 of the Administrative Code is a
legitimate exertion of the police power, somewhat analogous to the Indian policy of
the United States. Section 2145 of the Administrative Code of 1917 is constitutional.
Petitioners are not unlawfully imprisoned or restrained of their liberty. Habeas corpus
can, therefore, not issue. This is the true ruling of the court. Costs shall be taxes
against petitioners. So ordered.
Arellano, C.J., Torres and Avanceña, JJ., concur.
Separate Opinions
CARSON, J., concurring:
I fully concur in the reasoning and the conclusions of Justice Malcolm as set forth in
the prevailing, opinion.
The words "non-Christian' have a clear, definite and well settled signification when
used in the Philippine statute-book as a descriptive adjective, applied to "tribes,"
"people," or "inhabitants," dwelling in more or less remote districts and provinces
throughout the Islands.
Justice Malcolm, as I think, correctly finds that these words, as used in this
connection in our statute-book, denote the 'low grace of civilization" of the individuals
included in the class to which they are applied. To this I would add that the tests for
the determination of the fact that an individual or tribes is, or is not of the "non-
Christian" are, and throughout the period of American occupation always have been,
"the mode of life, the degree of advancement in civilization, and connection or lack of
connection with some civilized community." (Cf. letter of Collector of Internal Revenue
dated September 17, 1910, and set out in the principal opinion.)
The legislative and administrative history of the Philippine Islands clearly discloses
that the standard of civilization to which a specific tribe must be found to have
advanced, to justify its removal from the class embraces with the descriptive term
"non-Christian," as that term is used in the Philippine statute-book, is that degree of
civilization which results in a mode of life within the tribe, such that it is feasible and
practicable to extend to, and enforce upon its membership the general laws and
regulations, administrative, legislative, and judicial, which control the conduct of the
admitted civilized inhabitants of the Islands; a made of life, furthermore, which does
not find expression in tribal customs or practices which tend to brutalize or debauch
the members of the tribe indulging in such customs or practices, or to expose to loss
or peril the lives or property of those who may be brought in contact with members of
the tribe.
So the standard of civilization to which any given number or group of inhabitants of
particular province in these Islands, or any individual member of such a group, must
be found to have advanced, in order to remove such group or individual from the
class embraced within the statutory description of "non-Christian," is that degree of
civilization which would naturally and normally result in the withdrawal by such
persons of permanent allegiance or adherence to a "non-Christian" tribe, had they at
any time adhered to or maintained allegiance to such a tribe; and which would qualify
them whether they reside within or beyond the habitat of a "non-Christian" tribe, not
only to maintain a mode of life independent of a apart from that maintain by such
tribe, but a mode of life as would not be inimical to the lives or property or general
welfare of the civilized inhabitants of the Islands with whom they are brought in
contact.
The contention that, in this particular case, and without challenging the validity of the
statute, the writ should issue because of the failure to give these petitioners, as well
as the rest of the fifteen thousand Manguianes affected by the reconcentration order,
an opportunity to be heard before any attempt was made to enforce it, begs the
question and is, of course, tantamount to a contention that there is no authority in law
for the issuance of such an order.
If the fifteen thousand manguianes affected by the order complained of had attained
that degree of civilization which would have made it practicable to serve notice upon,
and give an opportunity for a real hearing, to all the members of the tribe affected by
the order, it may well be doubted whether the provincial board and the Secretary of
the Interior would have been justified in its enforcement By what proceeding known to
the law, or to be specially adopted in a particular case, could the offices of any
province provide for a genuine hearing upon a proposal to issue a reconcentration
order upon a head-hunting tribe in the north of the Island of Luzon; or upon one of the
nomadic tribes whose habitat is in the mountain fastnesses of Mindanao, and whose
individual members have no fixed or known place of residence, or upon the fifteen
thousand Manguianes roaming in the wilds of Mindoro.
Of course, friendly headmen or chief might and, as a rule, should be consulted, after
the practice in the United States when tribes or groups of American Indians have
been placed upon reservations; but since non-Christian head men and chiefs in the
Philippines have no lawful authority to bind their acts or their consent, the objection
based on lack of a hearing, would have the same force whether the issuance of a
reconcentration order was or was not preceded by a pow-wow of this kind.
The truth of the mater is that the power to provide for the issuance of such orders
rests upon analogous principles to those upon which the liberty and freedom or action
of children and persons of unsound minds is restrained, without consulting their
wishes, but for their own good and the general welfare. The power rests upon
necessity, that "great master of all things," and is properly exercised only where
certain individuals or groups of individual are found to be of such a low grade of
civilization that their own wishes cannot be permitted to determine their mode of life or
place of residence.
The status of the non-Christian inhabitants of these Islands, and the special and
necessarily paternal attitude assume toward them by the Insular Government is well
illustrated by the following provisions found in the Administrative Code of 1917:
SEC. 705. Special duties and purposes of Bureau (of non-Christian tribes).
— It shall be the duty of the Bureau of non-Christian tribes to continue the
work for advancement and liberty in favor of the regions inhabited by non-
Christian Filipinos and to foster by all adequate means and in a systematic,
rapid, and completely manner the moral, material, economic, social and
political development of those regions, always having in view the aim of
rendering permanent the mutual intelligence between and complete fusion of
all the Christian and non-Christian elements populating the provinces of the
Archipelago.
SEC. 2116. Township and settlement fund. — There shall be maintained in
the provincial treasuries of the respective specially organized provinces a
special fund to be known as the township and settlement fund, which shall
be available, exclusively, for expenditures for the benefit of the townships
and settlements of the province, and non-Christian inhabitants of the
province, upon approval of the Secretary of the Interior.
As I understand it, the case at bar does not raise any real question as to the
jurisdiction of the courts of these Islands in habeas corpus proceedings, to review the
action of the administrative authorities in the enforcement of reconcentration orders
issued, under authority of section 2145 of the Administrative Code, against a
petitioner challenging the alleged fact that he is a "non-Christian" as that term is used
in the statute. I, therefore, express no opinion on that question at this time.
JOHNSON, J., dissenting:
I dissent. The petitioners were deprived of their liberty without a hearing. That fact is
not denied. I cannot give my consent to any act which deprives the humblest citizen
of his just liberty without a hearing, whether he be a Christian or non-Christian. All
persons in the Philippine Islands are entitled to a hearing, at least, before they are
deprived of their liberty.
MOIR, J., dissenting:
I dissent.
I realize that a dissenting opinion carries little weight, but may sense of justice will not
permit me to let this decision go on record without expressing may strong dissent
from the opinion of Justice Malcolm, concurred in by a majority of the court. I shall not
attempt to analyze the opinion or to go into the question in detail. I shall simply state,
as briefly as may be, the legal and human side of the case as it presents itself to my
mind.
The facts are that one Rubi and various other Manguianes in the Province of Mindoro
were ordered by the Provincial governor of Mindoro to remove their residence from
their native habitat and to establish themselves on a reservation at Tigbao in the
Province of Mindoro and to remain there, or be punished by imprisonment if they
escaped. This reservation, as appears from the resolution of the provincial board,
extends over an area of 800 hectares of land, which is approximately 2,000 acres, on
which about three hundred manguianes are confined. One of the Manguianes,
Dabalos, escaped from the reservation and was taken in hand by the provincial sheriff
and placed in prision at Calapan, solely because he escaped from the reservation.
The Manguianes used out a writ of habeas corpus in this court, alleging that they are
deprived of their liberty in violation of law.
The Solicitor-General of the Philippine Islands makes return to the writ copied in the
majority opinion which states that the provincial governor of Mindoro with the prior
approval of his act by the Department Secretary ordered the placing of the petitioners
and others on a reservation.
The manguianes, it is stated on page 694 of the majority opinion, "are very low in
culture. They have considerable Negrito blood and have not advanced beyond the
Negritos in civilization. They are peaceful, timid, primitive, seminomadic people. They
number approximately 15,000 (?). The manguianes have shown no desire for
community life, and, as indicated in the preamble to Act No. 547, have no progressed
sufficiently in civilization to make it practicable to bring them under any for of
municipal government."
It may be well to add that the last P.I. Census (1903) shows that the Island of Mindoro
(not including smaller islands which together make the Province of Mindoro) has an
area of 3,851 square miles and a populations of 28, 361 of which 7, 369 are wild or
uncivilized tribes (Manguianes). This appears to be the total Mangyan population of
the province. The total population was less than seven to the mile (Vol. 2, P.I.
Census, pp. 30 and 407).
The Island is fertile, heavily wooded and well watered.
It has no savage population, but it is sparsely settled by Christian Filipinos along the
coast and by Manguianes.
The Manguianes roamed its mountains and valleys, fishing and hunting at will long
before Magallanes [Magellan] anchored his boats in the water of Cebu. They have
made little or no progress in the ways of civilization. "They are a peaceful, timid,
primitive, seminomadic people," whom the Government of the Philippines Islands
would bring under the beneficient influence of civilization and progress.
The law provides for it in section 2145 of the Administrative Code, and for those who
like Dadalos do not take kindly to the ways provided for civilizing them section 2759
provides the punishment.
The attorney for the petitioners has raised various constitutional questions, but only
the fundamental one will be considered by me. It is that the sections of the
Administrative Code, 2145 and 2759, quoted in the majority opinion, are in violation of
the first paragraph of section 3 of the Act of Congress of August 29, 1916, which
reads as follows:
That no law shall be enacted in said Islands which shall deprive any
person of life, liberty or property without due process of law, or deny to any
person therein the equal protection of the laws.
It is not necessary to argue that a Mangyan is one of the persons protected by that
provision.
The Attorney-General argues that the treatment provided for the Manguianes is
similar to that accorded the Indians in the United States, and reference is made all
through the court's decision to the decisions of the United States Supreme Court with
reference to the Indians. It is not considered necessary to go into these cases for the
simple reason that all the Indians nations in the United States were considered
as separate nations and all acts taken in regard to them were the result of separate
treaties made by the United States Government with the Indian nations, and,
incompliance with these treaties, reservations were set apart for them on which they
lived and were protected form intrusion and molestation by white men. Some these
reservations were larger than the Islands of Luzon, and they were not measured in
hectares but in thousands of square miles.
The Manguianes are not a separate state. They have no treaty with the Government
of the Philippine Islands by which they have agreed to live within a certain district
where they are accorded exclusive rights. They are citizens of the Philippine Islands.
Legally they are Filipinos. They are entitled to all the rights and privileges of any other
citizen of this country. And when the provincial governor of the Province of Mindoro
attempted to take them from their native habitat and to hold them on the little
reservation of about 800 hectares, he deprived them of their rights and their liberty
without due process of law, and they were denied the equal protection of the law.
The majority opinion says "they are restrained for their own good and the general
good of the Philippines."
They are to be made to accept the civilization of the more advanced Filipinos whether
they want it or not. They are backward and deficient in culture and must be moved
from their homes, however humble they may be and "bought under the bells" and
made to stay on a reservation.
Are these petitioners charged with any crime? There is no mention in the return of the
Solicitor-General of the Philippine Islands of any crime having been committed by
these "peacefully, timid, primitive, semi-nomadic people."
A memorandum of the Secretary of the Interior of the Philippine Islands is copied
in extenso in the majority opinion, and from it I gather the nature of their offense
which is that —
Living a nomadic and wayfaring life and evading the influence of civilization,
they (the manguianes) are engaged in the works of destruction — burning
and destroying the forests and making illegal caiñgins thereon. No bringing
any benefit to the State but, instead, injuring and damaging its interests,
what will ultimately become of those people with the sort of liberty they wish
to preserve and for which they are not fighting in court? They will ultimately
become a heavy burden to the State and, on account of their ignorance, they
will commit crimes and make depredations, or if not they will be subjected to
involuntary servitude by those who may want to abuse them.
There is no doubt in my mind that this people has not a right conception of
liberty and does not practice liberty in a rightful way. They understand liberty
as the right to do anything they will — going from one place to another in the
mountains, burning and destroying forests and making
illegal caiñgins thereon.
Not knowing what true liberty is and not practising the same rightfully, how
can they are being deprived thereof without due process of law?
xxx xxx xxx
But does the constitutional guaranty that "no person shall be deprived of his
liberty without due process of law" apply to a class of persons who do not
have a correct idea of what liberty is and do not practise liberty in a rightful
way?
To say that it does will mean to sanction and defend an erroneous idea of
such class of persons as to what liberty is. It will mean, in the case at bar,
that the Government should not adopt any measures looking to the welfare
and advancement of the class of persons in question. It will mean that this
people be let alone in the mountains and in a permanent state of savagery
without even the remotest hope of coming to understand liberty in its true
and noble sense.
In dealing with the backward population, like the Manguianes, the
Government has been placed in the alternative of either letting them alone or
guiding them in the path of civilization. The latter measure was adopted as
the one more in accord with humanity and with national conscience.
xxx xxx xxx
The national legislation on the subject of non-Christian people has tended
more and more towards the education and civilization of such people and
fitting them to be citizens.
There appear to be two intimations or charges in this memorandum; one is that the
Manguianes destroy the forest by making a caiñgin. What is a "caiñgin?" Simply this.
These people move their camp or place of abode frequently and when they do move
to a new place, it is necessary to clear the land in order to plant corn and camotes
(sweet potatoes) and they cut down the smaller trees and burn these around the
larger ones, killing them, so that they can plant their crops. The fires never spread in
the tropical undergrowth of an island like Mindoro, but the trees within the caiñgin are
killed and crops are planted and harvested. This land may be abandoned later on —
due to superstition, to a lack of game in the neighborhood, to poor crops from
exhausted fertility, or to a natural desire to move on.
Granting that the Manguianes do make caiñgins or clear lands in spots and then
abandon them for the more fertile lands, which every man knows to be just over the
hills, we cannot see that they are committing such a great abuse as to justify
incarcerating them on a small tract of land — for incarceration it is and nothing less.
The second intimation or charge is that "they will become a heavy burden to the state
and on account of their ignorance they will commit crimes and make depredations,
or if not they will be subjected to involuntary servitude by those who want to abuse
them." They have never been a burden to the state and never will be. They have not
committed crimes and, when they do, let the law punish them." The authorities are
anticipating too much from these "peaceful, timid, primitive, semi-nomadic people."
Their history does not demonstrate that we must expect them to commit crimes and
jail them to prevent the possibility. But the Secretary says "they will be subjected to
involuntary servitude by those want to abuse them." Are they more liable to be
subjected to involuntary servitude when left free to roam their native hills and gain a
livelihood as they have been accustomed to for hundreds of years, than they will be if
closely confined on a narrow reservation from which they may not escape without
facing a term in jail? Is not more likely that they will be glad to exchange their
"freedom" on a small reservation for the great boon of binding themselves and their
children to the more fortunate Christian Filipinos who will feed them and clothe them
in return of their services.?
It think it not only probable but almost a certainty that they will be all be subjected to
involuntary personal servitude if their freedom is limited as it has been. How will they
live? There may be persons who are willing to lend them money with which to buy
food on the promise that they will work for them. And if they accept the loan and do
not work for the lender we have another law on the statute books, Act No. 2098, into
whose noose they run their necks, and they may be fined not more than two hundred
pesos or imprisonment for not exceeding six months or both, and when the sentence
expires they must again go into debt or starve, and if they do not work will again go to
jail, and this maybe repeated till they are too old to work and are cast adrift.
The manguianes have committed no offenses and are charged with none. It does not
appear they were ever consulted about their reconcentration. It does not appear that
they had any hearing or were allowed to make any defense. It seems they were
gathered here and there whenever found by the authorities of the law and forcibly
placed upon the reservation, because they are "non-Christian," and because the
provincial governor ordered it. Let it be clear there is no discrimination because
of religion. The term "non-Christian" means one who is not a Christian Filipino, but it
also means any of the so-called "wild" or backward tribes of the Philippines. These
non-Christian tribes are Moros, Igorrotes, Bukidnons, Ifugaos, Manguianes and
various others, about one millions souls all together. Some of them, like the Moros,
Tinguianes and Ifugaos, have made great progress in civilization. The have beautiful
fields reclaimed by hard labor — they have herds of cattle and horses and some few
of them are well educated. Some of the non-Christians, like the Aetas and the
Negritos, are very low in the scale of civilization, but they are one and all "non-
Christians," as the term is used and understood in law and in fact.
All of them, according to the court's opinion under the present law, may be taken from
their homes and herded on a reservation at the instance of the provincial governor,
with the prior approval of the department head. To state such a monstrous proposition
is to show the wickedness and illegality of the section of the law under which these
people are restrained of their liberty. But it is argued that there is no probability of the
department head ever giving his approval to such a crime, but the fact that he can do
it and has done it in the present case in what makes the law unconstitutional. The
arbitrary and unrestricted power to do harm should be the measure by which a law's
legality is tested and not the probability of doing harm.
It has been said that this is a government of laws and not of men; that there
is no arbitrary body of individuals; that the constitutional principles upon
which our government and its institutions rest do not leave room for the play
and action of purely personal and arbitrary power, but that all in authority are
guided and limited by these provisions which the people have, the through
the organic law, declared shall be the measure and scope of all control
exercised over them. In particular the fourteenth amendment, and especially
the equal protection clause, thereof, forbids that the individual shall be
subjected to any arbitrary exercise of the powers of government; it was
intended to prohibit, and does prohibit, any arbitrary deprivation of life or
liberty, or arbitrary spoliation of property.
As we have seen, a statute which makes a purely arbitrary or unreasonable
classification, or which singles out any particular individuals or class as the
subject of hostile and discriminating legislation, is clearly unconstitutional as
being opposed to the fourteenth amendment and especially to the equal
protection clause thereof. This is a plain case, and requires no further
discussion. (Vol. 4, Encyclopedia of U.S. Supreme Court Reports, p. 366.)
When we consider the nature and the theory of our institutions of
government, the principles upon which they are supposed to rest, and
review the history of their development, we are constrained to conclude that
they do not mean to leave room for the play and action of purely personal
and arbitrary power. Sovereignty itself is, of course, not subject to law, for its
is the author and source of law; but in our system, while sovereign powers
are delegated to the agencies of government, sovereignty itself remains with
the people, by whom and for whom all government exists and acts. And the
law is the definition and limitation of power. It is, indeed, quite true, that there
must always be lodged somewhere, and in some person or body, the
authority of final decision; and, in many cases of mere administration the
responsibility is purely political, no appeal lying except to the ultimate
tribunal of the public judgment, exercised either in the pressure of opinion or
by means of the suffrage. But the fundamental rights to life, liberty, and the
pursuit of happiness, considered as individual possessions, are secured by
those maxims of constitutional law which are the monuments showing the
victorious progress of the race in securing to men the blessings of civilization
under the reign of just and equal laws, so that, in the famous language of
Massachusetts Bill of Rights, the Government of Commonwealth "may be a
government of law and not of men." For the very idea that one man may be
compelled to hold his life, or the means of living, or any material right
essential to the enjoyment of life, at the mere will of another, seems to be
intolerable in any country where freedom prevails, as being the essence of
slavery itself. (Yick Wo vs. Hopkins, 118 U.S., 374.)
It is said that the present law is an old Act being substance Act No. 547 of the
Philippine Commission. But it has never been brought before this court for
determination of its constitutionality. No matter how beneficient the motives of the
lawmakers if the lawmakers if the law tends to deprive any man of life, liberty, or
property without due process law, it is void.
In may opinion the acts complained of which were taken in conformity with section
2145 of the Administrative Code not only deprive these Manguianes of their liberty,
without due process of law, but will in all probability deprive them of their life, without
due process of law. History teaches that to take a semi-nomadic tribe from their
native fastnesses and to transfer them to the narrow confines of a reservation is to
invite disease an suffering and death. From my long experience in the Islands, I
should say that it would be a crime of title less magnitude to take the Ifugaos from
their mountain homes where they have reclaimed a wilderness and made it a land of
beauty and fruitfulness and to transfer them to the more fertile, unoccupied, malaria
infested valleys which they look down upon from their fields — than it would be to
order their decapitation en masse.
There can be no denial that the Ifugaos are "non-Christians," or "wild tribes" and are
in exactly the same category as the Manguianes. If the Manguianes may be so taken
from their native habitat and reconcentrated on a reservation — in effect an open air
jail — then so may the Ifugaos, so may the Tinguianes, who have made more
progress than the Ifugaos, and so may the Moros.
There are "non-Christian" in nearly every province in the Philippine Islands. All of the
thirty-nine governors upon the prior approval of the head of the department, have the
power under this law to take the non-Christian inhabitants of their different provinces
form their homes and put them on a reservation for "their own good and the general
good of the Philippines," and the court will grant them no relief. These unfortunate
citizens of the Philippine Islands would hold their liberty, and their lives, may be,
subject to the unregulated discretion of the provincial governor.
And who would be safe?
After the reservation is once established might not a provincial governor decide that
some political enemy was a non-Christian, and that he would be safer on the
reservation. No matter what his education and culture, he could have no trial, he
could make no defense, the judge of the court might be in a distant province and not
within reach, and the provincial governor's fiat is final.
The case of the United States vs. Crook (Federal Cases 14891), cited in the majority
opinion, should be quoted at length. District Judge Dundy said:
During the fifteen years in which I have been engaged in administering the
laws of my country, I have never been called upon to hear or decide a case
that appealed so strongly to my sympathy as the one now under
consideration. On the one side, we have a few of the remnants of a once
numerous and powerful, but now weak, insignificant, unlettered, and
generally despised race; and the other, we have the representative of one of
the most powerful, most enlightened, and most christianized nations of
modern times. On the one side, we have the representatives of this wasted
race coming into this national tribunal of ours, asking for justice and liberty to
enable them to adopt our boasted civilization, and to pursue the arts of
peace, which have made us great and happy as a nation; on the other side,
we have this magnificent, if not magnanimous, government, resisting this
application with the determination of sending these people back to the
country which is to them less desirable perpetual imprisonment in their own
native land. But I think it is creditable to the heart and mind of the brave and
distinguished officer who is made respondent herein to say that he has no
sort of sympathy in the business in which he is forced by his position to bear
a part so conspicuous; and, so far as I am individually concerned, I think it
not improper to say that, if the strongest possible sympathy could give the
relators title to freedom, they would have been restored to liberty the
moment the arguments in their behalf were closed. no examination or further
thought would then have been necessary or expedient. But in a country
where liberty is regulated by law, something more satisfactory and enduring
than mere sympathy must furnish and constitute the rule and basis of judicial
action. It follows that this case must be examined and decided on principles
of law, and that unless the relators are entitled to their discharge under the
constitution or laws of the United States, or some treaty, they must be
remanded to the custody of the officer who caused their arrest, to be
returned to the Indian Territory which they left without the consent of the
government.
On the 8th of April, 1879, the relators Standing Bear and twenty-five others,
during the session of the court held at that time of Lincoln, presented their
petition, duly verified, praying for the allowance of a writ of habeas
corpus and their final discharged from custody thereunder.
The petition alleges, in substance, that the relators are Indians who have
formerly belonged to the Ponca tribe of Indians now located in the Indian
Territory; that they had some time previously withdrawn from the tribe, and
completely severed their tribal relations therewith, and had adopted the
general habits of the whites, and were then endeavoring to maintain
themselves by their own exertions, and without aid or assistance from the
general government; that whilst they were thus engaged, and without being
guilty of violating any of the laws of the United States, they were arrested
and restrained of their liberty by order of the respondent, George Crook.
The writ was issued and served on the respondent on the 8th day of April,
and, the distance between the place where the writ was made returnable
and the place where the relators were confined being more than twenty
miles, ten days were alloted in which to make return.
On the 18th of April the writ was returned, and the authority for the arrest
and detention is therein shown. The substance of the return to the writ, and
the additional statement since filed, is that the relators are individual
members of, and connected with, the Ponca Tribe of Indians; that they had
fled or escaped from a reservation situated in some place within the limits of
the indian Territory — had departed therefrom without permission from the
government; and, at the request of the secretary of the interior, the general
of the army had issued an order which required the respondent to arrest and
return the relators to their tribe in the Indian Territory, and that, pursuant to
the said order, he had caused the relators to be arrested on the Omaha
Indian reservation, and that they were in his custody for the purpose of being
returned to the Indian Territory.
It is claimed upon the one side, and denied upon the other, that the relators
had withdrawn and severed, for all time, their connection with the tribe to
which they belonged; and upon this point alone was there any testimony
produced by either party hereto. The other matter stated in the petition and
the return to the writ are conceded to be true; so that the questions to be
determined are purely questions of law.
On the 8th of Mar, 1859, a treaty was made by the United States with the
Ponca tribe of Indians, by which a certain tract of country, north of the
Niobrara river and west of the Missouri, was set apart for the permanent
home of the aid Indians, in which the government agreed to protect them
during their good behaviour. But just when or how, or why, or under what
circumstances, the Indians left their reservation in Dakota and went to the
Indian Territory does not appear.
xxx xxx xxx
A question of much greater importance remains for consideration, which,
when determined, will be decisive of this whole controversy. This relates to
the right of the government to arrest and hold the relators for a time, for the
purpose of being returned to a point in the Indian Territory from which it is
alleged the Indians escaped. I am not vain enough to think that I can do full
justice to a question like the one under consideration. But, as the mater
furnishes so much valuable material for discussion, and so much food for
reflection, I shall try to present it as viewed from my own standpoint, without
reference to consequences or criticisms, which, though not specially invited,
will be sure to follow.
xxx xxx xxx
On the 15th day of August, 1876, congress passed the general Indian
appropriation bill, and in it we find a provision authorizing the secretary of the
interior to use $25,000 for the removal of the Poncas to the Indian Territory,
and providing them a home therein, with consent of the tribe. (19 Sta., 192.)
xxx xxx xxx
The Poncas lived upon their reservation in southern Dakota, and cultivated a
portion of the same, until two or three years ago, when they removed
therefrom, but whether by force or otherwise does not appear. At all event,
we find a portion of them, including the relators, located at some point in the
Indian Territory. There, the testimony seems to show, is where the trouble
commenced. Standing Bear, the principal witness, states that out of five
hundred and eighty-one Indians who went from the reservation in Dakota to
the Indian Territory, one hundred and fifty-eight died within a year or so, and
a great proportion of the others were sick and disabled, caused, in a great
measure, no doubt, from change of climate; and to save himself and the
survivors of his wasted family, and the feeble remnant of his little band of
followers, he determined to leave the Indian Territory and return to his old
home, where, to use his own language, "he might live and die in peace, and
be buried with his fathers." He also stated that he informed the agent of their
final purpose to leave, never to return, and that he and his followers had
finally, fully, and forever severed his and their connection with the Ponca
tribe of Indians, and had resolved to disband as a tribe, or band of Indians,
and to cut loose from the government, go to work, become self-sustaining,
and adopt the habits and customs of a higher civilization. To accomplish
what would seem to be a desirable and laudable purpose, all who were able
to do so went to work to earn a living. The Omaha Indians, who speak the
same language, and with whom many of the Poncas have long continued to
intermarry, gave them employment and ground to cultivate, so as to make
them self-sustaining. And it was when at the Omaha reservation, and when
thus employed, that they were arrested by order of the government, for the
purpose of being taken back to the Indian Territory. They claim to be unable
to see the justice, or reason, or wisdom, or necessity, of removing them by
force from their own native plains and blood relations to a far-off country, in
which they can see little but new-made graves opening for their reception.
The land from which they fled in fear has no attractions for them. The love of
home and native land was strong enough in the minds of these people to
induce them to brave every peril to return and live and die where they had
been reared. The bones of the dead son of Standing Bear were not to
repose in the land they hoped to be leaving forever, but were carefully
preserved and protected and formed a part of what was to them melancholy
procession homeward. Such instances of parental affections, and such love
home and native land, may be heathen in origin, but it seems to that they are
not unlike Christian in principle.
And the court declared that the Indians were illegally held by authority of the United
States and in violation of their right to life, liberty, and the pursuit of happiness, and
ordered their release from custody.
This case is very similarly to the case of Standing Bear and others.
I think this Court should declare that section 2145 and 2759 of the Administrative
Code of 1917 are unconstitutional, null and void, and that the petitioners are illegally
restrained of their liberty, and that they have been denied the equal protection of the
law, and order the respondents immediately to liberate all of the petitioners.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-49112 February 2, 1979
LEOVILLO C. AGUSTIN, petitioner,
vs.
HON. ROMEO F. EDU, in his capacity as Land Transportation Commissioner;
HON. JUAN PONCE ENRILE, in his capacity as Minister of National Defense;
HON. ALFREDO L. JUINIO, in his capacity as Minister Of Public Works,
Transportation and Communications; and HON: BALTAZAR AQUINO, in his
capacity as Minister of Public Highways, respondents.
Leovillo C. Agustin Law Office for petitioner.
Solicitor General Estelito P. Mendoza, Assistant Solicitor General Ruben E. Agpalo
and Solicitor Amado D. Aquino for respondents.
FERNANDO, J.:
The validity of a letter of Instruction 1 providing for an early seaming device for motor
vehicles is assailed in this prohibition proceeding as being violative of the
constitutional guarantee of due process and, insofar as the rules and regulations for
its implementation are concerned, for transgressing the fundamental principle of non-
delegation of legislative power. The Letter of Instruction is stigmatized by petitioner
who is possessed of the requisite standing, as being arbitrary and oppressive. A
temporary restraining order as issued and respondents Romeo F. Edu, Land
Transportation Commissioner Juan Ponce Enrile, Minister of National Defense;
Alfredo L. Juinio, Minister of Public Works, Transportation and Communications; and
Baltazar Aquino, Minister of Public Highways; were to answer. That they did in a
pleading submitted by Solicitor General Estelito P. Mendoza. 2 Impressed with a
highly persuasive quality, it makes devoid clear that the imputation of a constitutional
infirmity is devoid of justification The Letter of Instruction on is a valid police power
measure. Nor could the implementing rules and regulations issued by respondent
Edu be considered as amounting to an exercise of legislative power. Accordingly, the
petition must be dismissed.
The facts are undisputed. The assailed Letter of Instruction No. 229 of President
Marcos, issued on December 2, 1974, reads in full: "[Whereas], statistics show that
one of the major causes of fatal or serious accidents in land transportation is the
presence of disabled, stalled or parked motor vehicles along streets or highways
without any appropriate early warning device to signal approaching motorists of their
presence; [Whereas], the hazards posed by such obstructions to traffic have been
recognized by international bodies concerned with traffic safety, the 1968 Vienna
Convention on Road Signs and Signals and the United Nations Organization (U.N.);
[Whereas], the said Vienna Convention which was ratified by the Philippine
Government under P.D. No. 207, recommended the enactment of local legislation for
the installation of road safety signs and devices; [Now, therefore, I, Ferdinand E.
Marcos], President of the Philippines, in the interest of safety on all streets and
highways, including expressways or limited access roads, do hereby direct: 1. That all
owners, users or drivers of motor vehicles shall have at all times in their motor
vehicles at least one (1) pair of early warning device consisting of triangular,
collapsible reflectorized plates in red and yellow colors at least 15 cms. at the base
and 40 cms. at the sides. 2. Whenever any motor vehicle is stalled or disabled or is
parked for thirty (30) minutes or more on any street or highway, including
expressways or limited access roads, the owner, user or driver thereof shall cause
the warning device mentioned herein to be installed at least four meters away to the
front and rear of the motor vehicle staged, disabled or parked. 3. The Land
Transportation Commissioner shall cause Reflectorized Triangular Early Warning
Devices, as herein described, to be prepared and issued to registered owners of
motor vehicles, except motorcycles and trailers, charging for each piece not more
than 15 % of the acquisition cost. He shall also promulgate such rules and regulations
as are appropriate to effectively implement this order. 4. All hereby concerned shall
closely coordinate and take such measures as are necessary or appropriate to carry
into effect then instruction. 3 Thereafter, on November 15, 1976, it was amended by
Letter of Instruction No. 479 in this wise. "Paragraph 3 of Letter of Instruction No. 229
is hereby amended to read as follows: 3. The Land transportation Commissioner shall
require every motor vehicle owner to procure from any and present at the registration
of his vehicle, one pair of a reflectorized early warning device, as d bed of any brand
or make chosen by mid motor vehicle . The Land Transportation Commissioner shall
also promulgate such rule and regulations as are appropriate to effectively implement
this order.'" 4 There was issued accordingly, by respondent Edu, the implementing
rules and regulations on December 10, 1976. 5 They were not enforced as President
Marcos on January 25, 1977, ordered a six-month period of suspension insofar as the
installation of early warning device as a pre-registration requirement for motor vehicle
was concerned. 6 Then on June 30, 1978, another Letter of Instruction 7 the lifting of
such suspension and directed the immediate implementation of Letter of Instruction
No. 229 as amended. 8 It was not until August 29, 1978 that respondent Edu issued
Memorandum Circular No. 32, worded thus: "In pursuance of Letter of Instruction No.
716, dated June 30, 1978, the implementation of Letter of Instruction No. 229, as
amended by Letter of Instructions No. 479, requiring the use of Early Warning
Devices (EWD) on motor vehicle, the following rules and regulations are hereby
issued: 1. LTC Administrative Order No. 1, dated December 10, 1976; shall now be
implemented provided that the device may come from whatever source and that it
shall have substantially complied with the EWD specifications contained in Section 2
of said administrative order; 2. In order to insure that every motor vehicle , except
motorcycles, is equipped with the device, a pair of serially numbered stickers, to be
issued free of charge by this Commission, shall be attached to each EWD. The EWD.
serial number shall be indicated on the registration certificate and official receipt of
payment of current registration fees of the motor vehicle concerned. All Orders,
Circulars, and Memoranda in conflict herewith are hereby superseded, This Order
shall take effect immediately. 9 It was for immediate implementation by respondent
Alfredo L. Juinio, as Minister of Public Works, transportation, and Communications. 10
Petitioner, after setting forth that he "is the owner of a Volkswagen Beetle Car, Model
13035, already properly equipped when it came out from the assembly lines with
blinking lights fore and aft, which could very well serve as an early warning device in
case of the emergencies mentioned in Letter of Instructions No. 229, as amended, as
well as the implementing rules and regulations in Administrative Order No. 1 issued
by the land transportation Commission," 11 alleged that said Letter of Instruction No.
229, as amended, "clearly violates the provisions and delegation of police power, [sic]
* * *: " For him they are "oppressive, unreasonable, arbitrary, confiscatory, nay
unconstitutional and contrary to the precepts of our compassionate New
Society." 12 He contended that they are "infected with arbitrariness because it is
harsh, cruel and unconscionable to the motoring public;" 13 are "one-sided, onerous
and patently illegal and immoral because [they] will make manufacturers and dealers
instant millionaires at the expense of car owners who are compelled to buy a set of
the so-called early warning device at the rate of P 56.00 to P72.00 per set." 14 are
unlawful and unconstitutional and contrary to the precepts of a compassionate New
Society [as being] compulsory and confiscatory on the part of the motorists who could
very well provide a practical alternative road safety device, or a better substitute to
the specified set of EWD's." 15 He therefore prayed for a judgment both the assailed
Letters of Instructions and Memorandum Circular void and unconstitutional and for a
restraining order in the meanwhile.
A resolution to this effect was handed down by this Court on October 19, 1978: "L-
49112 (Leovillo C. Agustin v. Hon. Romeo F. Edu, etc., et al.) — Considering the
allegations contained, the issues raised and the arguments adduced in the petition for
prohibition with writ of p prohibitory and/or mandatory injunction, the Court Resolved
to (require) the respondents to file an answer thereto within ton (10) days from notice
and not to move to dismiss the petition. The Court further Resolved to [issue] a
[temporary restraining order] effective as of this date and continuing until otherwise
ordered by this Court.16
Two motions for extension were filed by the Office of the Solicitor General and
granted. Then on November 15, 1978, he Answer for respondents was submitted.
After admitting the factual allegations and stating that they lacked knowledge or
information sufficient to form a belief as to petitioner owning a Volkswagen Beetle
car," they "specifically deny the allegations and stating they lacked knowledge or
information sufficient to form a belief as to petitioner owning a Volkswagen Beetle
Car, 17 they specifically deny the allegations in paragraphs X and XI (including its
subparagraphs 1, 2, 3, 4) of Petition to the effect that Letter of Instruction No. 229 as
amended by Letters of Instructions Nos. 479 and 716 as well as Land transportation
Commission Administrative Order No. 1 and its Memorandum Circular No. 32 violates
the constitutional provisions on due process of law, equal protection of law and undue
delegation of police power, and that the same are likewise oppressive, arbitrary,
confiscatory, one-sided, onerous, immoral unreasonable and illegal the truth being
that said allegations are without legal and factual basis and for the reasons alleged in
the Special and Affirmative Defenses of this Answer." 18 Unlike petitioner who
contented himself with a rhetorical recital of his litany of grievances and merely
invoked the sacramental phrases of constitutional litigation, the Answer, in
demonstrating that the assailed Letter of Instruction was a valid exercise of the police
power and implementing rules and regulations of respondent Edu not susceptible to
the charge that there was unlawful delegation of legislative power, there was in the
portion captioned Special and Affirmative Defenses, a citation of what respondents
believed to be the authoritative decisions of this Tribunal calling for application. They
are Calalang v. Williams, 19 Morfe v. Mutuc, 20 and Edu v. Ericta. 21 Reference was
likewise made to the 1968 Vienna Conventions of the United Nations on road traffic,
road signs, and signals, of which the Philippines was a signatory and which was duly
ratified. 22 Solicitor General Mendoza took pains to refute in detail, in language calm
and dispassionate, the vigorous, at times intemperate, accusation of petitioner that
the assailed Letter of Instruction and the implementing rules and regulations cannot
survive the test of rigorous scrutiny. To repeat, its highly-persuasive quality cannot be
denied.
This Court thus considered the petition submitted for decision, the issues being
clearly joined. As noted at the outset, it is far from meritorious and must be dismissed.
1. The Letter of Instruction in question was issued in the exercise of the police power.
That is conceded by petitioner and is the main reliance of respondents. It is the
submission of the former, however, that while embraced in such a category, it has
offended against the due process and equal protection safeguards of the Constitution,
although the latter point was mentioned only in passing. The broad and expansive
scope of the police power which was originally Identified by Chief Justice Taney of the
American Supreme Court in an 1847 decision as "nothing more or less than the
powers of government inherent in every sovereignty" 23 was stressed in the
aforementioned case of Edu v. Ericta thus: "Justice Laurel, in the first leading decision
after the Constitution came into force, Calalang v. Williams, Identified police power
with state authority to enact legislation that may interfere with personal liberty or
property in order to promote the general welfare. Persons and property could thus 'be
subjected to all kinds of restraints and burdens in order to we the general comfort,
health and prosperity of the state.' Shortly after independence in 1948, Primicias v.
Fugoso reiterated the doctrine, such a competence being referred to as 'the power to
prescribe regulations to promote the health, morals, peace, education, good order or
safety, and general welfare of the people. The concept was set forth in negative terms
by Justice Malcolm in a pre-Commonwealth decision as 'that inherent and plenary
power in the State which enables it to prohibit all things hurtful to the comfort, safety
and welfare of society. In that sense it could be hardly distinguishable as noted by this
Court in Morfe v. Mutuc with the totality of legislative power. It is in the above sense
the greatest and most powerful at. tribute of government. It is, to quote Justice
Malcolm anew, 'the most essential, insistent, and at least table powers, I extending as
Justice Holmes aptly pointed out 'to all the great public needs.' Its scope, ever-
expanding to meet the exigencies of the times, even to anticipate the future where it
could be done, provides enough room for an efficient and flexible response to
conditions and circumstances thus assuring the greatest benefits. In the language of
Justice Cardozo: 'Needs that were narrow or parochial in the past may be interwoven
in the present with the well-being of the nation. What is critical or urgent changes with
the time.' The police power is thus a dynamic agency, suitably vague and far from
precisely defined, rooted in the conception that men in organizing the state and
imposing upon its government limitations to safeguard constitutional rights did not
intend thereby to enable an individual citizen or a group of citizens to obstruct
unreasonably the enactment of such salutary measures calculated to communal
peace, safety, good order, and welfare." 24
2. It was thus a heavy burden to be shouldered by petitioner, compounded by the fact
that the particular police power measure challenged was clearly intended to promote
public safety. It would be a rare occurrence indeed for this Court to invalidate a
legislative or executive act of that character. None has been called to our attention,
an indication of its being non-existent. The latest decision in point, Edu v. Ericta,
sustained the validity of the Reflector Law, 25 an enactment conceived with the same
end in view. Calalang v. Williams found nothing objectionable in a statute, the
purpose of which was: "To promote safe transit upon, and. avoid obstruction on roads
and streets designated as national roads * * *. 26 As a matter of fact, the first law
sought to be nullified after the effectivity of the 1935 Constitution, the National
Defense Act, 27 with petitioner failing in his quest, was likewise prompted by the
imperative demands of public safety.
3. The futility of petitioner's effort to nullify both the Letter of Instruction and the
implementing rules and regulations becomes even more apparent considering his
failure to lay the necessary factual foundation to rebut the presumption of validity. So
it was held in Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor
of Manila. 28 The rationale was clearly set forth in an excerpt from a decision of
Justice Branders of the American Supreme Court, quoted in the opinion: "The statute
here questioned deals with a subject clearly within the scope of the police power. We
are asked to declare it void on the ground that the specific method of regulation
prescribed is unreasonable and hence deprives the plaintiff of due process of law. As
underlying questions of fact may condition the constitutionality of legislation of this
character, the presumption of constitutionality must prevail in the absence of some
factual foundation of record in overthrowing the statute. 29
4. Nor did the Solicitor General as he very well could, rely solely on such rebutted
presumption of validity. As was pointed out in his Answer "The President certainly had
in his possession the necessary statistical information and data at the time he issued
said letter of instructions, and such factual foundation cannot be defeated by
petitioner's naked assertion that early warning devices 'are not too vital to the
prevention of nighttime vehicular accidents' because allegedly only 390 or 1.5 per
cent of the supposed 26,000 motor vehicle accidents that in 1976 involved rear-end
collisions (p. 12 of petition). Petitioner's statistics is not backed up by demonstrable
data on record. As aptly stated by this Honorable Court: Further: "It admits of no
doubt therefore that there being a presumption of validity, the necessity for evidence
to rebut it is unavoidable, unless the statute or ordinance is void on its face, which is
not the case here"' * * *. But even as g the verity of petitioner's statistics, is that not
reason enough to require the installation of early warning devices to prevent another
390 rear-end collisions that could mean the death of 390 or more Filipinos and the
deaths that could likewise result from head-on or frontal collisions with stalled
vehicles?" 30 It is quite manifest then that the issuance of such Letter of Instruction is
encased in the armor of prior, careful study by the Executive Department. To set it
aside for alleged repugnancy to the due process clause is to give sanction to
conjectural claims that exceeded even the broadest permissible limits of a pleader's
well known penchant for exaggeration.
5. The rather wild and fantastic nature of the charge of oppressiveness of this Letter
of Instruction was exposed in the Answer of the Solicitor General thus: "Such early
warning device requirement is not an expensive redundancy, nor oppressive, for car
owners whose cars are already equipped with 1) blinking lights in the fore and aft of
said motor vehicles,' 2) "battery-powered blinking lights inside motor vehicles," 3)
"built-in reflectorized tapes on front and rear bumpers of motor vehicles," or 4) "well-
lighted two (2) petroleum lamps (the Kinke) * * * because: Being universal among the
signatory countries to the said 1968 Vienna Conventions, and visible even under
adverse conditions at a distance of at least 400 meters, any motorist from this country
or from any part of the world, who sees a reflectorized rectangular early seaming
device installed on the roads, highways or expressways, will conclude, without
thinking, that somewhere along the travelled portion of that road, highway, or
expressway, there is a motor vehicle which is stationary, stalled or disabled which
obstructs or endangers passing traffic. On the other hand, a motorist who sees any of
the aforementioned other built in warning devices or the petroleum lamps will not
immediately get adequate advance warning because he will still think what that
blinking light is all about. Is it an emergency vehicle? Is it a law enforcement car? Is it
an ambulance? Such confusion or uncertainty in the mind of the motorist will thus
increase, rather than decrease, the danger of collision. 31
6. Nor did the other extravagant assertions of constitutional deficiency go unrefuted in
the Answer of the Solicitor General "There is nothing in the questioned Letter of
Instruction No. 229, as amended, or in Administrative Order No. 1, which requires or
compels motor vehicle owners to purchase the early warning device prescribed
thereby. All that is required is for motor vehicle owners concerned like petitioner, to
equip their motor vehicles with a pair of this early warning device in question,
procuring or obtaining the same from whatever source. In fact, with a little of industry
and practical ingenuity, motor vehicle owners can even personally make or produce
this early warning device so long as the same substantially conforms with the
specifications laid down in said letter of instruction and administrative order.
Accordingly the early warning device requirement can neither be oppressive,
onerous, immoral, nor confiscatory, much less does it make manufacturers and
dealers of said devices 'instant millionaires at the expense of car owners' as petitioner
so sweepingly concludes * * *. Petitioner's fear that with the early warning device
requirement 'a more subtle racket may be committed by those called upon to enforce
it * * * is an unfounded speculation. Besides, that unscrupulous officials may try to
enforce said requirement in an unreasonable manner or to an unreasonable degree,
does not render the same illegal or immoral where, as in the instant case, the
challenged Letter of Instruction No. 229 and implementing order disclose none of the
constitutional defects alleged against it.32
7 It does appear clearly that petitioner's objection to this Letter of Instruction is not
premised on lack of power, the justification for a finding of unconstitutionality, but on
the pessimistic, not to say negative, view he entertains as to its wisdom. That
approach, it put it at its mildest, is distinguished, if that is the appropriate word, by its
unorthodoxy. It bears repeating "that this Court, in the language of Justice Laurel,
'does not pass upon questions of wisdom justice or expediency of legislation.' As
expressed by Justice Tuason: 'It is not the province of the courts to supervise
legislation and keep it within the bounds of propriety and common sense. That is
primarily and exclusively a legislative concern.' There can be no possible objection
then to the observation of Justice Montemayor. 'As long as laws do not violate any
Constitutional provision, the Courts merely interpret and apply them regardless of
whether or not they are wise or salutary. For they, according to Justice Labrador, 'are
not supposed to override legitimate policy and * * * never inquire into the wisdom of
the law.' It is thus settled, to paraphrase Chief Justice Concepcion in Gonzales v.
Commission on Elections, that only congressional power or competence, not the
wisdom of the action taken, may be the basis for declaring a statute invalid. This is as
it ought to be. The principle of separation of powers has in the main wisely allocated accepted principles of international law as part of the law of the land * * *." 36 The
the respective authority of each department and confined its jurisdiction to such a 1968 Vienna Convention on Road Signs and Signals is impressed with such a
sphere. There would then be intrusion not allowable under the Constitution if on a character. It is not for this country to repudiate a commitment to which it had pledged
matter left to the discretion of a coordinate branch, the judiciary would substitute its its word. The concept of Pacta sunt servanda stands in the way of such an attitude,
own. If there be adherence to the rule of law, as there ought to be, the last offender which is, moreover, at war with the principle of international morality.
should be courts of justice, to which rightly litigants submit their controversy precisely
to maintain unimpaired the supremacy of legal norms and prescriptions. The attack 10. That is about all that needs be said. The rather court reference to equal protection
on the validity of the challenged provision likewise insofar as there may be objections, did not even elicit any attempt on the Part of Petitioner to substantiate in a manner
even if valid and cogent on is wisdom cannot be sustained. 33 clear, positive, and categorical why such a casual observation should be taken
seriously. In no case is there a more appropriate occasion for insistence on what was
8. The alleged infringement of the fundamental principle of non-delegation of referred to as "the general rule" in Santiago v. Far Eastern Broadcasting
legislative power is equally without any support well-settled legal doctrines. Had Co., 37 namely, "that the constitutionality of a law wig not be considered unless the
petitioner taken the trouble to acquaint himself with authoritative pronouncements point is specially pleaded, insisted upon, and adequately argued." 38 "Equal
from this Tribunal, he would not have the temerity to make such an assertion. An protection" is not a talismanic formula at the mere invocation of which a party to a
exempt from the aforecited decision of Edu v. Ericta sheds light on the matter: "To lawsuit can rightfully expect that success will crown his efforts. The law is anything
avoid the taint of unlawful delegation, there must be a standard, which implies at the but that.
very least that the legislature itself determines matters of principle and lays down
fundamental policy. Otherwise, the charge of complete abdication may be hard to WHEREFORE, this petition is dismissed. The restraining order is lifted. This decision
repel A standard thus defines legislative policy, marks its maps out its boundaries and is immediately executory. No costs.
specifies the public agency to apply it. It indicates the circumstances under which the
legislative command is to be effected. It is the criterion by which legislative purpose
may be carried out. Thereafter, the executive or administrative office designated may Castro, C.J., Barredo, Antonio, Santos, Fernandez, Guerrero, Abad Santos, De
in pursuance of the above guidelines promulgate supplemental rules and regulations. Castro and Melencio-Herrera, concur.
The standard may be either express or implied. If the former, the non-delegation
objection is easily met. The standard though does not have to be spelled out Makasiar, J, reserves the right to file a separate opinion.
specifically. It could be implied from the policy and purpose of the act considered as a
whole. In the Reflector Law clearly, the legislative objective is public safety. What is Aquino J., took no part.
sought to be attained as in Calalang v. Williams is "safe transit upon the roads.' This
is to adhere to the recognition given expression by Justice Laurel in a decision
announced not too long after the Constitution came into force and effect that the Concepcion J., is on leave.
principle of non-delegation "has been made to adapt itself to the complexities of
modern governments, giving rise to the adoption, within certain limits, of the principle Castro, C.J., certifies that Justice Concepcion concurs in their decision.
of "subordinate legislation" not only in the United States and England but in practically
all modern governments.' He continued: 'Accordingly, with the growing complexity of
modern life, the multiplication of the subjects of governmental regulation, and the
increased difficulty of administering the laws, there is a constantly growing tendency
toward the delegation of greater powers by the legislature and toward the approval of
the practice by the courts.' Consistency with the conceptual approach requires the
reminder that what is delegated is authority non-legislative in character, the
completeness of the statute when it leaves the hands of Congress being assumed." 34

9. The conclusion reached by this Court that this petition must be dismissed is
reinforced by this consideration. The petition itself quoted these two whereas clauses
of the assailed Letter of Instruction: "[Whereas], the hazards posed by such
obstructions to traffic have been recognized by international bodies concerned with
traffic safety, the 1968 Vienna Convention on Road Signs and Signals and the United
Nations Organization (U.N.); [Whereas], the said Vionna Convention, which was
ratified by the Philippine Government under P.D. No. 207, recommended the
enactment of local legislation for the installation of road safety signs and devices; * * *
" 35 It cannot be disputed then that this Declaration of Principle found in the
Constitution possesses relevance: "The Philippines * * * adopts the generally
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 169364 September 18, 2009
PEOPLE OF THE PHILIPPINES, Petitioner,
vs.
EVANGELINE SITON y SACIL and KRYSTEL KATE SAGARANO y
MEFANIA, Respondents.
DECISION
YNARES-SANTIAGO, J.:
If a man is called to be a street sweeper, he should sweep streets even as
Michelangelo painted, or Beethoven composed music, or Shakespeare wrote poetry.
He should sweep streets so well that all the hosts of Heaven and Earth will pause to
say, here lived a great street sweeper who did his job well.
– Martin Luther King, Jr.
Assailed in this petition for review on certiorari is the July 29, 2005 Order1 of Branch
11, Davao City Regional Trial Court in Special Civil Case No. 30-500-2004 granting
respondents’ Petition for Certiorari and declaring paragraph 2 of Article 202 of the
Revised Penal Code unconstitutional.
Respondents Evangeline Siton and Krystel Kate Sagarano were charged with
vagrancy pursuant to Article 202 (2) of the Revised Penal Code in two separate
Informations dated November 18, 2003, docketed as Criminal Case Nos. 115,716-C-
2003 and 115,717-C-2003 and raffled to Branch 3 of the Municipal Trial Court in
Cities, Davao City. The Informations, read:
That on or about November 14, 2003, in the City of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the above-mentioned accused, willfully, unlawfully
and feloniously wandered and loitered around San Pedro and Legaspi Streets, this
City, without any visible means to support herself nor lawful and justifiable purpose.2
Article 202 of the Revised Penal Code provides:
Art. 202. Vagrants and prostitutes; penalty. — The following are vagrants:
1. Any person having no apparent means of subsistence, who has the
physical ability to work and who neglects to apply himself or herself to some
lawful calling;
2. Any person found loitering about public or semi-public buildings or places
or tramping or wandering about the country or the streets without visible
means of support;
3. Any idle or dissolute person who lodges in houses of ill fame; ruffians or
pimps and those who habitually associate with prostitutes;
4. Any person who, not being included in the provisions of other articles of
this Code, shall be found loitering in any inhabited or uninhabited place
belonging to another without any lawful or justifiable purpose;
5. Prostitutes.
For the purposes of this article, women who, for money or profit, habitually indulge in
sexual intercourse or lascivious conduct, are deemed to be prostitutes.
Any person found guilty of any of the offenses covered by this articles shall be
punished by arresto menor or a fine not exceeding 200 pesos, and in case of
recidivism, by arresto mayor in its medium period to prision correccional in its
minimum period or a fine ranging from 200 to 2,000 pesos, or both, in the discretion
of the court.
Instead of submitting their counter-affidavits as directed, respondents filed separate
Motions to Quash3 on the ground that Article 202 (2) is unconstitutional for being
vague and overbroad.
In an Order4 dated April 28, 2004, the municipal trial court denied the motions and
directed respondents anew to file their respective counter-affidavits. The municipal
trial court also declared that the law on vagrancy was enacted pursuant to the State’s
police power and justified by the Latin maxim "salus populi est suprem(a) lex," which
calls for the subordination of individual benefit to the interest of the greater number,
thus:
Our law on vagrancy was enacted pursuant to the police power of the State. An
authority on police power, Professor Freund describes laconically police power "as
the power of promoting public welfare by restraining and regulating the use of liberty
and property." (Citations omitted). In fact the person’s acts and acquisitions are
hemmed in by the police power of the state. The justification found in the Latin
maxim, salus populi est supreme (sic) lex" (the god of the people is the Supreme
Law). This calls for the subordination of individual benefit to the interests of the
greater number.In the case at bar the affidavit of the arresting police officer, SPO1
JAY PLAZA with Annex "A" lucidly shows that there was a prior surveillance
conducted in view of the reports that vagrants and prostitutes proliferate in the place
where the two accused (among other women) were wandering and in the wee hours
of night and soliciting male customer. Thus, on that basis the prosecution should be
given a leeway to prove its case. Thus, in the interest of substantial justice, both
prosecution and defense must be given their day in Court: the prosecution proof of
the crime, and the author thereof; the defense, to show that the acts of the accused in
the indictment can’t be categorized as a crime.5
The municipal trial court also noted that in the affidavit of the arresting police officer,
SPO1 Jay Plaza, it was stated that there was a prior surveillance conducted on the
two accused in an area reported to be frequented by vagrants and prostitutes who
solicited sexual favors. Hence, the prosecution should be given the opportunity to
prove the crime, and the defense to rebut the evidence.1avvphi1
Respondents thus filed an original petition for certiorari and prohibition with the
Regional Trial Court of Davao City,6directly challenging the constitutionality of the
anti-vagrancy law, claiming that the definition of the crime of vagrancy under Article
202 (2), apart from being vague, results as well in an arbitrary identification of
violators, since the definition of the crime includes in its coverage persons who are
otherwise performing ordinary peaceful acts. They likewise claimed that Article 202
(2) violated the equal protection clause under the Constitution because it
discriminates against the poor and unemployed, thus permitting an arbitrary and
unreasonable classification.
The State, through the Office of the Solicitor General, argued that pursuant to the
Court’s ruling in Estrada v. Sandiganbayan,7 the overbreadth and vagueness
doctrines apply only to free speech cases and not to penal statutes. It also asserted
that Article 202 (2) must be presumed valid and constitutional, since the respondents
failed to overcome this presumption.
On July 29, 2005, the Regional Trial Court issued the assailed Order granting the
petition, the dispositive portion of which reads:
WHEREFORE, PRESCINDING FROM THE FOREGOING, the instant Petition is
hereby GRANTED. Paragraph 2 of Article 202 of the Revised Penal Code is hereby
declared unconstitutional and the Order of the court a quo, dated April 28, 2004,
denying the petitioners’ Motion to Quash is set aside and the said court is ordered to
dismiss the subject criminal cases against the petitioners pending before it.
SO ORDERED.8
In declaring Article 202 (2) unconstitutional, the trial court opined that the law is vague
and it violated the equal protection clause. It held that the "void for vagueness"
doctrine is equally applicable in testing the validity of penal statutes.
Citing Papachristou v. City of Jacksonville,9 where an anti vagrancy ordinance was
struck down as unconstitutional by the Supreme Court of the United States, the trial
court ruled:
The U.S. Supreme Court’s justifications for striking down the Jacksonville Vagrancy
Ordinance are equally applicable to paragraph 2 of Article 202 of the Revised Penal
Code.
Indeed, to authorize a police officer to arrest a person for being "found loitering about
public or semi-public buildings or places or tramping or wandering about the country
or the streets without visible means of support" offers too wide a latitude for arbitrary
determinations as to who should be arrested and who should not.
Loitering about and wandering have become national pastimes particularly in these
times of recession when there are many who are "without visible means of support"
not by reason of choice but by force of circumstance as borne out by the high
unemployment rate in the entire country.
To authorize law enforcement authorities to arrest someone for nearly no other
reason than the fact that he cannot find gainful employment would indeed be adding
insult to injury.10
On its pronouncement that Article 202 (2) violated the equal protection clause of the
Constitution, the trial court declared:
The application of the Anti-Vagrancy Law, crafted in the 1930s, to our situation at
present runs afoul of the equal protection clause of the constitution as it offers no
reasonable classification between those covered by the law and those who are not.
Class legislation is such legislation which denies rights to one which are accorded to
others, or inflicts upon one individual a more severe penalty than is imposed upon
another in like case offending.
Applying this to the case at bar, since the definition of Vagrancy under Article 202 of
the Revised Penal Code offers no guidelines or any other reasonable indicators to
differentiate those who have no visible means of support by force of circumstance
and those who choose to loiter about and bum around, who are the proper subjects of
vagrancy legislation, it cannot pass a judicial scrutiny of its constitutionality. 11
Hence, this petition for review on certiorari raising the sole issue of:
WHETHER THE REGIONAL TRIAL COURT COMMITTED A REVERSIBLE ERROR
IN DECLARING UNCONSTITUTIONAL ARTICLE 202 (2) OF THE REVISED PENAL
CODE12
Petitioner argues that every statute is presumed valid and all reasonable doubts
should be resolved in favor of its constitutionality; that, citing Romualdez v.
Sandiganbayan,13 the overbreadth and vagueness doctrines have special application
to free-speech cases only and are not appropriate for testing the validity of penal
statutes; that respondents failed to overcome the presumed validity of the statute,
failing to prove that it was vague under the standards set out by the Courts; and that
the State may regulate individual conduct for the promotion of public welfare in the
exercise of its police power.
On the other hand, respondents argue against the limited application of the
overbreadth and vagueness doctrines. They insist that Article 202 (2) on its face
violates the constitutionally-guaranteed rights to due process and the equal protection
of the laws; that the due process vagueness standard, as distinguished from the free
speech vagueness doctrine, is adequate to declare Article 202 (2) unconstitutional
and void on its face; and that the presumption of constitutionality was adequately
overthrown.
The Court finds for petitioner.
The power to define crimes and prescribe their corresponding penalties is legislative
in nature and inherent in the sovereign power of the state to maintain social order as
an aspect of police power. The legislature may even forbid and penalize acts formerly
considered innocent and lawful provided that no constitutional rights have been
abridged.14 However, in exercising its power to declare what acts constitute a crime,
the legislature must inform the citizen with reasonable precision what acts it intends to
prohibit so that he may have a certain understandable rule of conduct and know what
acts it is his duty to avoid.15 This requirement has come to be known as the void-for-
vagueness doctrine which states that "a statute which either forbids or requires the
doing of an act in terms so vague that men of common intelligence must necessarily
guess at its meaning and differ as to its application, violates the first essential of due
process of law."16
In Spouses Romualdez v. COMELEC,17 the Court recognized the application of the
void-for-vagueness doctrine to criminal statutes in appropriate cases. The Court
therein held:
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. 18
The first statute punishing vagrancy – Act No. 519 – was modeled after American
vagrancy statutes and passed by the Philippine Commission in 1902. The Penal
Code of Spain of 1870 which was in force in this country up to December 31, 1931
did not contain a provision on vagrancy.19 While historically an Anglo-American
concept of crime prevention, the law on vagrancy was included by the Philippine
legislature as a permanent feature of the Revised Penal Code in Article 202 thereof
which, to repeat, provides:
ART. 202. Vagrants and prostitutes; penalty. – The following are vagrants:
1. Any person having no apparent means of subsistence, who has the
physical ability to work and who neglects to apply himself or herself to some
lawful calling;
2. Any person found loitering about public or semi-public buildings or places,
or tramping or wandering about the country or the streets without visible
means of support;
3. Any idle or dissolute person who lodges in houses of ill-fame; ruffians or
pimps and those who habitually associate with prostitutes;
4. Any person who, not being included in the provisions of other articles of
this Code, shall be found loitering in any inhabited or uninhabited place
belonging to another without any lawful or justifiable purpose;
5. Prostitutes.
For the purposes of this article, women who, for money or profit, habitually indulge in
sexual intercourse or lascivious conduct, are deemed to be prostitutes.
Any person found guilty of any of the offenses covered by this article shall be
punished by arresto menor or a fine not exceeding 200 pesos, and in case of
recidivism, by arresto mayor in its medium period to prision correccional in its
minimum period or a fine ranging from 200 to 2,000 pesos, or both, in the discretion
of the court.
In the instant case, the assailed provision is paragraph (2), which defines a vagrant
as any person found loitering about public or semi-public buildings or places, or
tramping or wandering about the country or the streets without visible means of
support. This provision was based on the second clause of Section 1 of Act No. 519
which defined "vagrant" as "every person found loitering about saloons or dramshops
or gambling houses, or tramping or straying through the country without visible means
of support." The second clause was essentially retained with the modification that the
places under which the offense might be committed is now expressed in general
terms – public or semi-public places.
The Regional Trial Court, in asserting the unconstitutionality of Article 202 (2), take
support mainly from the U.S. Supreme Court’s opinion in the Papachristou v. City of
Jacksonville20 case, which in essence declares:
Living under a rule of law entails various suppositions, one of which is that "[all
persons] are entitled to be informed as to what the State commands or forbids."
Lanzetta v. New Jersey, 306 U. S. 451, 306 U. S. 453.
Lanzetta is one of a well recognized group of cases insisting that the law give fair
notice of the offending conduct. See Connally v. General Construction Co., 269 U. S.
385, 269 U. S. 391; Cline v. Frink Dairy Co., 274 U. S. 445; United States v. Cohen
Grocery Co., 255 U. S. 81. In the field of regulatory statutes governing business
activities, where the acts limited are in a narrow category, greater leeway is allowed.
Boyce Motor Lines, Inc. v. United States, 342 U. S. 337; United States v. National
Dairy Products Corp., 372 U. S. 29; United States v. Petrillo, 332 U. S. 1.
The poor among us, the minorities, the average householder, are not in business and
not alerted to the regulatory schemes of vagrancy laws; and we assume they would
have no understanding of their meaning and impact if they read them. Nor are they
protected from being caught in the vagrancy net by the necessity of having a specific
intent to commit an unlawful act. See Screws v. United States, 325 U. S. 91; Boyce
Motor Lines, Inc. v. United States, supra.
The Jacksonville ordinance makes criminal activities which, by modern standards, are
normally innocent. "Nightwalking" is one. Florida construes the ordinance not to make
criminal one night's wandering, Johnson v. State, 202 So.2d at 855, only the
"habitual" wanderer or, as the ordinance describes it, "common night walkers." We
know, however, from experience that sleepless people often walk at night, perhaps
hopeful that sleep-inducing relaxation will result.
Luis Munoz-Marin, former Governor of Puerto Rico, commented once that "loafing"
was a national virtue in his Commonwealth, and that it should be encouraged. It is,
however, a crime in Jacksonville.
xxxx
Persons "wandering or strolling" from place to place have been extolled by Walt
Whitman and Vachel Lindsay. The qualification "without any lawful purpose or object"
may be a trap for innocent acts. Persons "neglecting all lawful business and habitually
spending their time by frequenting . . . places where alcoholic beverages are sold or
served" would literally embrace many members of golf clubs and city clubs.
Walkers and strollers and wanderers may be going to or coming from a burglary.
Loafers or loiterers may be "casing" a place for a holdup. Letting one's wife support
him is an intra-family matter, and normally of no concern to the police. Yet it may, of
course, be the setting for numerous crimes.
The difficulty is that these activities are historically part of the amenities of life as we
have known them. They are not mentioned in the Constitution or in the Bill of Rights.
These unwritten amenities have been, in part, responsible for giving our people the
feeling of independence and self-confidence, the feeling of creativity. These amenities
have dignified the right of dissent, and have honored the right to be nonconformists
and the right to defy submissiveness. They have encouraged lives of high spirits,
rather than hushed, suffocating silence.
xxxx
Where the list of crimes is so all-inclusive and generalized as the one in this
ordinance, those convicted may be punished for no more than vindicating affronts to
police authority:
"The common ground which brings such a motley assortment of human troubles
before the magistrates in vagrancy-type proceedings is the procedural laxity which
permits 'conviction' for almost any kind of conduct and the existence of the House of
Correction as an easy and convenient dumping-ground for problems that appear to
have no other immediate solution." Foote, Vagrancy-Type Law and Its Administration,
104 U.Pa.L.Rev. 603, 631.
xxxx
Another aspect of the ordinance's vagueness appears when we focus not on the lack
of notice given a potential offender, but on the effect of the unfettered discretion it
places in the hands of the Jacksonville police. Caleb Foote, an early student of this
subject, has called the vagrancy-type law as offering "punishment by analogy." Such
crimes, though long common in Russia, are not compatible with our constitutional
system.
xxxx
A presumption that people who might walk or loaf or loiter or stroll or frequent houses
where liquor is sold, or who are supported by their wives or who look suspicious to
the police are to become future criminals is too precarious for a rule of law. The
implicit presumption in these generalized vagrancy standards -- that crime is being
nipped in the bud -- is too extravagant to deserve extended treatment. Of course,
vagrancy statutes are useful to the police. Of course, they are nets making easy the
roundup of so-called undesirables. But the rule of law implies equality and justice in
its application. Vagrancy laws of the Jacksonville type teach that the scales of justice
are so tipped that even-handed administration of the law is not possible. The rule of
law, evenly applied to minorities as well as majorities, to the poor as well as the rich,
is the great mucilage that holds society together.21
The underlying principles in Papachristou are that: 1) the assailed Jacksonville
ordinance "fails to give a person of ordinary intelligence fair notice that his
contemplated conduct is forbidden by the statute;" and 2) it encourages or promotes
opportunities for the application of discriminatory law enforcement.
The said underlying principle in Papachristou that the Jacksonville ordinance, or
Article 202 (2) in this case, fails to give fair notice of what constitutes forbidden
conduct, finds no application here because under our legal system, ignorance of the
law excuses no one from compliance therewith.22 This principle is of Spanish origin,
and we adopted it to govern and limit legal conduct in this jurisdiction. Under
American law, ignorance of the law is merely a traditional rule that admits of
exceptions.23
Moreover, the Jacksonville ordinance was declared unconstitutional on account of
specific provisions thereof, which are not found in Article 202 (2). The ordinance
(Jacksonville Ordinance Code § 257) provided, as follows:
Rogues and vagabonds, or dissolute persons who go about begging; common
gamblers, persons who use juggling or unlawful games or plays, common drunkards,
common night walkers, thieves, pilferers or pickpockets, traders in stolen property,
lewd, wanton and lascivious persons, keepers of gambling places, common railers
and brawlers, persons wandering or strolling around from place to place without any
lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all
lawful business and habitually spending their time by frequenting houses of ill fame,
gaming houses, or places where alcoholic beverages are sold or served, persons
able to work but habitually living upon the earnings of their wives or minor children
shall be deemed vagrants and, upon conviction in the Municipal Court shall be
punished as provided for Class D offenses.
Thus, the U.S. Supreme Court in Jacksonville declared the ordinance
unconstitutional, because such activities or habits as nightwalking, wandering or
strolling around without any lawful purpose or object, habitual loafing, habitual
spending of time at places where alcoholic beverages are sold or served, and living
upon the earnings of wives or minor children, which are otherwise common and
normal, were declared illegal. But these are specific acts or activities not found in
Article 202 (2). The closest to Article 202 (2) – "any person found loitering about
public or semi-public buildings or places, or tramping or wandering about the country
or the streets without visible means of support" – from the Jacksonville ordinance,
would be "persons wandering or strolling around from place to place without any
lawful purpose or object." But these two acts are still not the same: Article 202 (2) is
qualified by "without visible means of support" while the Jacksonville ordinance
prohibits wandering or strolling "without any lawful purpose or object," which was held
by the U.S. Supreme Court to constitute a "trap for innocent acts."
Under the Constitution, the people are guaranteed the right to be secure in their
persons, houses, papers and effects against unreasonable searches and seizures of
whatever nature and for any purpose, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or
things to be seized.24 Thus, as with any other act or offense, the requirement
of probable cause provides an acceptable limit on police or executive authority that
may otherwise be abused in relation to the search or arrest of persons found to be
violating Article 202 (2). The fear exhibited by the respondents, echoing Jacksonville,
that unfettered discretion is placed in the hands of the police to make an arrest or
search, is therefore assuaged by the constitutional requirement of probable cause,
which is one less than certainty or proof, but more than suspicion or possibility. 25
Evidently, the requirement of probable cause cannot be done away with arbitrarily
without pain of punishment, for, absent this requirement, the authorities are
necessarily guilty of abuse. The grounds of suspicion are reasonable when, in the
absence of actual belief of the arresting officers, the suspicion that the person to be
arrested is probably guilty of committing the offense, is based on actual facts, i.e.,
supported by circumstances sufficiently strong in themselves to create the probable
cause of guilt of the person to be arrested. A reasonable suspicion therefore must be
founded on probable cause, coupled with good faith of the peace officers making the
arrest.26
The State cannot in a cavalier fashion intrude into the persons of its citizens as well
as into their houses, papers and effects. The constitutional provision sheathes the
private individual with an impenetrable armor against unreasonable searches and
seizures. It protects the privacy and sanctity of the person himself against unlawful
arrests and other forms of restraint, and prevents him from being irreversibly cut off
from that domestic security which renders the lives of the most unhappy in some
measure agreeable.27
As applied to the instant case, it appears that the police authorities have been
conducting previous surveillance operations on respondents prior to their arrest. On
the surface, this satisfies the probable cause requirement under our Constitution. For
this reason, we are not moved by respondents’ trepidation that Article 202 (2) could
have been a source of police abuse in their case.
Since the Revised Penal Code took effect in 1932, no challenge has ever been made
upon the constitutionality of Article 202 except now. Instead, throughout the years, we
have witnessed the streets and parks become dangerous and unsafe, a haven for
beggars, harassing "watch-your-car" boys, petty thieves and robbers, pickpockets,
swindlers, gangs, prostitutes, and individuals performing acts that go beyond decency
and morality, if not basic humanity. The streets and parks have become the training
ground for petty offenders who graduate into hardened and battle-scarred criminals.
Everyday, the news is rife with reports of innocent and hardworking people being
robbed, swindled, harassed or mauled – if not killed – by the scourge of the streets.
Blue collar workers are robbed straight from withdrawing hard-earned money from the
ATMs (automated teller machines); students are held up for having to use and thus
exhibit publicly their mobile phones; frail and helpless men are mauled by thrill-
seeking gangs; innocent passers-by are stabbed to death by rowdy drunken men
walking the streets; fair-looking or pretty women are stalked and harassed, if not
abducted, raped and then killed; robbers, thieves, pickpockets and snatchers case
streets and parks for possible victims; the old are swindled of their life savings by
conniving streetsmart bilkers and con artists on the prowl; beggars endlessly pester
and panhandle pedestrians and commuters, posing a health threat and putting law-
abiding drivers and citizens at risk of running them over. All these happen on the
streets and in public places, day or night.
The streets must be protected. Our people should never dread having to ply them
each day, or else we can never say that we have performed our task to our brothers
and sisters. We must rid the streets of the scourge of humanity, and restore order,
peace, civility, decency and morality in them.
This is exactly why we have public order laws, to which Article 202 (2) belongs.
These laws were crafted to maintain minimum standards of decency, morality
and civility in human society. These laws may be traced all the way back to ancient
times, and today, they have also come to be associated with the struggle to improve
the citizens’ quality of life, which is guaranteed by our Constitution. 28 Civilly, they are
covered by the "abuse of rights" doctrine embodied in the preliminary articles of the
Civil Code concerning Human Relations, to the end, in part, that any person who
willfully causes loss or injury to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for the damage. 29 This provision
is, together with the succeeding articles on human relations, intended to embody
certain basic principles "that are to be observed for the rightful relationship between
human beings and for the stability of the social order." 30
In civil law, for example, the summary remedy of ejectment is intended to prevent
criminal disorder and breaches of the peace and to discourage those who, believing
themselves entitled to the possession of the property, resort to force rather than to
some appropriate action in court to assert their claims. 31 Any private person may
abate a public nuisance which is specially injurious to him by removing, or if
necessary, by destroying the thing which constitutes the same, without committing a
breach of the peace, or doing unnecessary injury.32
Criminally, public order laws encompass a whole range of acts – from public
indecencies and immoralities, to public nuisances, to disorderly conduct. The acts
punished are made illegal by their offensiveness to society’s basic sensibilities and
their adverse effect on the quality of life of the people of society. For example, the
issuance or making of a bouncing check is deemed a public nuisance, a crime
against public order that must be abated.33 As a matter of public policy, the failure to
turn over the proceeds of the sale of the goods covered by a trust receipt or to return
said goods, if not sold, is a public nuisance to be abated by the imposition of penal
sanctions.34 Thus, public nuisances must be abated because they have the effect of
interfering with the comfortable enjoyment of life or property by members of a
community.
Article 202 (2) does not violate the equal protection clause; neither does it
discriminate against the poor and the unemployed. Offenders of public order laws are
punished not for their status, as for being poor or unemployed, but for conducting
themselves under such circumstances as to endanger the public peace or cause
alarm and apprehension in the community. Being poor or unemployed is not a license
or a justification to act indecently or to engage in immoral conduct.
Vagrancy must not be so lightly treated as to be considered constitutionally offensive.
It is a public order crime which punishes persons for conducting themselves, at a
certain place and time which orderly society finds unusual, under such conditions that
are repugnant and outrageous to the common standards and norms of decency and
morality in a just, civilized and ordered society, as would engender a justifiable
concern for the safety and well-being of members of the community.
respect for the acts of the other departments. The theory is that as the joint act of
Congress and the President of the Philippines, a law has been carefully studied,
crafted and determined to be in accordance with the fundamental law before it was
finally enacted.37
It must not be forgotten that police power is an inherent attribute of sovereignty. It has
been defined as the power vested by the Constitution in the legislature to make,
ordain, and establish all manner of wholesome and reasonable laws, statutes and
ordinances, either with penalties or without, not repugnant to the Constitution, as they
shall judge to be for the good and welfare of the commonwealth, and for the subjects
of the same. The power is plenary and its scope is vast and pervasive, reaching and
justifying measures for public health, public safety, public morals, and the general
welfare.38 As an obvious police power measure, Article 202 (2) must therefore be
viewed in a constitutional light.
WHEREFORE, the petition is GRANTED. The Decision of Branch 11 of the Regional
Trial Court of Davao City in Special Civil Case No. 30-500-2004 declaring Article
202, paragraph 2 of the Revised Penal Code
UNCONSTITUTIONAL is REVERSED and SET ASIDE.
Let the proceedings in Criminal Cases Nos. 115,716-C-2003 and 115,717-C-2003
thus continue.
No costs.

Instead of taking an active position declaring public order laws unconstitutional, the SO ORDERED.
State should train its eye on their effective implementation, because it is in this area
that the Court perceives difficulties. Red light districts abound, gangs work the streets CONSUELO YNARES-SANTIAGO
in the wee hours of the morning, dangerous robbers and thieves ply their trade in the Associate Justice
trains stations, drunken men terrorize law-abiding citizens late at night and urinate on
otherwise decent corners of our streets. Rugby-sniffing individuals crowd our national WE CONCUR:
parks and busy intersections. Prostitutes wait for customers by the roadside all
around the metropolis, some even venture in bars and restaurants. Drug-crazed men
loiter around dark avenues waiting to pounce on helpless citizens. Dangerous groups MINITA V. CHICO-NAZARIO
wander around, casing homes and establishments for their next hit. The streets must Associate Justice
be made safe once more. Though a man’s house is his castle, 35 outside on the
streets, the king is fair game. PRESBITERO J. VELASCO, JR. DIOSDADO M. PERALTA
Associate Justice Associate Justice
The dangerous streets must surrender to orderly society.
LUCAS P. BERSAMIN*
Finally, we agree with the position of the State that first and foremost, Article 202 (2) Associate Justice
should be presumed valid and constitutional. When confronted with a constitutional
question, it is elementary that every court must approach it with grave care and
ATTESTATION
considerable caution bearing in mind that every statute is presumed valid and every
reasonable doubt should be resolved in favor of its constitutionality. 36 The policy of
our courts is to avoid ruling on constitutional questions and to presume that the acts I attest that the conclusions in the above decision were reached in consultation before
of the political departments are valid in the absence of a clear and unmistakable the case was assigned to the writer of the opinion of the Court’s Division.
showing to the contrary. To doubt is to sustain, this presumption is based on the
doctrine of separation of powers which enjoins upon each department a becoming
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s
Attestation, it is hereby certified that the conclusions in the above Decision were
reached in consultation before the case was assigned to the writer of the opinion of
the Court’s Division.

REYNATO S. PUNO
Chief Justice
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 120082 September 11, 1996
MACTAN CEBU INTERNATIONAL AIRPORT AUTHORITY, petitioner,
vs.
HON. FERDINAND J. MARCOS, in his capacity as the Presiding Judge of the
Regional Trial Court, Branch 20, Cebu City, THE CITY OF CEBU, represented by
its Mayor HON. TOMAS R. OSMEÑA, and EUSTAQUIO B. CESA, respondents.
DAVIDE, JR., J.:
For review under Rule 45 of the Rules of Court on a pure question of law are
the decision of 22 March 19951of the Regional Trial Court (RTC) of Cebu
City, Branch 20, dismissing the petition for declaratory relief in Civil Case
No. CEB-16900 entitled "Mactan Cebu International Airport Authority vs. City
of Cebu", and its order of 4, May 19952 denying the motion to reconsider the
decision.
We resolved to give due course to this petition for its raises issues dwelling
on the scope of the taxing power of local government-owned and controlled
corporations.
The uncontradicted factual antecedents are summarized in the instant
petition as follows:
Petitioner Mactan Cebu International Airport Authority (MCIAA) was
created by virtue of Republic Act No. 6958, mandated to "principally
undertake the economical, efficient and effective control,
management and supervision of the Mactan International Airport in
the Province of Cebu and the Lahug Airport in Cebu City, . . . and
such other Airports as may be established in the Province of Cebu .
. . (Sec. 3, RA 6958). It is also mandated to:
a) encourage, promote and
develop international and
domestic air traffic in the
Central Visayas and Mindanao
regions as a means of making
the regions centers of
international trade and tourism,
and accelerating the
development of the means of
transportation and
communication in the country;
and
b) upgrade the services and
facilities of the airports and to
formulate internationally
acceptable standards of airport
accommodation and service.
Since the time of its creation, petitioner MCIAA enjoyed the
privilege of exemption from payment of realty taxes in accordance
with Section 14 of its Charter.
Sec. 14. Tax Exemptions. — The authority shall
be exempt from realty taxes imposed by the
National Government or any of its political
subdivisions, agencies and instrumentalities . . .
On October 11, 1994, however, Mr. Eustaquio B. Cesa, Officer-in-
Charge, Office of the Treasurer of the City of Cebu, demanded
payment for realty taxes on several parcels of land belonging to the
petitioner (Lot Nos. 913-G, 743, 88 SWO, 948-A, 989-A, 474,
109(931), I-M, 918, 919, 913-F, 941, 942, 947, 77 Psd., 746 and
991-A), located at Barrio Apas and Barrio Kasambagan, Lahug,
Cebu City, in the total amount of P2,229,078.79.
Petitioner objected to such demand for payment as baseless and
unjustified, claiming in its favor the aforecited Section 14 of RA
6958 which exempt it from payment of realty taxes. It was also
asserted that it is an instrumentality of the government performing
governmental functions, citing section 133 of the Local Government
Code of 1991 which puts limitations on the taxing powers of local
government units:
Sec. 133. Common Limitations on the Taxing
Powers of Local Government Units. — Unless
otherwise provided herein, the exercise of the
taxing powers of provinces, cities, municipalities,
and barangay shall not extend to the levy of the
following:
a) . . .
xxx xxx xxx
 o) Taxes, fees or charges of
any kind on the National
Government, its agencies and
instrumentalities, and local
government units. (Emphasis
supplied)
Respondent City refused to cancel and set aside petitioner's realty
tax account, insisting that the MCIAA is a government-controlled
corporation whose tax exemption privilege has been withdrawn by
virtue of Sections 193 and 234 of the Local Governmental Code
that took effect on January 1, 1992:
Sec. 193. Withdrawal of Tax Exemption Privilege. — Unless
otherwise provided in this Code, tax exemptions or incentives
granted to, or presently enjoyed by all persons whether natural or
juridical, including government-owned or controlled corporations,
except local water districts, cooperatives duly registered under RA
No. 6938, non-stock, and non-profit hospitals and educational
institutions, are hereby withdrawn upon the effectivity of this Code.
(Emphasis supplied)
xxx xxx xxx
Sec. 234. Exemptions from Real Property taxes. — . . .
(a) . . .
xxx xxx xxx
(c) . . .
Except as provided herein, any exemption from
payment of real property tax previously granted
to, or presently enjoyed by all persons, whether
natural or juridical, including government-owned
or controlled corporations are hereby withdrawn
upon the effectivity of this Code.
As the City of Cebu was about to issue a warrant of levy against the
properties of petitioner, the latter was compelled to pay its tax
account "under protest" and thereafter filed a Petition for
Declaratory Relief with the Regional Trial Court of Cebu, Branch
20, on December 29, 1994. MCIAA basically contended that the
taxing powers of local government units do not extend to the levy of
taxes or fees of any kind on an instrumentality of the national
government. Petitioner insisted that while it is indeed a
government-owned corporation, it nonetheless stands on the same
footing as an agency or instrumentality of the national government.
Petitioner insisted that while it is indeed a government-owned
corporation, it nonetheless stands on the same footing as an
agency or instrumentality of the national government by the very
nature of its powers and functions.
Respondent City, however, asserted that MACIAA is not an
instrumentality of the government but merely a government-owned
corporation performing proprietary functions As such, all
exemptions previously granted to it were deemed withdrawn by
operation of law, as provided under Sections 193 and 234 of the
Local Government Code when it took effect on January 1, 1992.3
The petition for declaratory relief was docketed as Civil Case No. CEB-
16900.
In its decision of 22 March 1995,4 the trial court dismissed the petition in light
of its findings, to wit:
A close reading of the New Local Government Code of 1991 or RA
7160 provides the express cancellation and withdrawal of
exemption of taxes by government owned and controlled
corporation per Sections after the effectivity of said Code on
January 1, 1992, to wit: [proceeds to quote Sections 193 and 234]
Petitioners claimed that its real properties assessed by respondent
City Government of Cebu are exempted from paying realty taxes in
view of the exemption granted under RA 6958 to pay the same
(citing Section 14 of RA 6958).
However, RA 7160 expressly provides that "All general and special
laws, acts, city charters, decress [sic], executive orders,
proclamations and administrative regulations, or part or parts
thereof which are inconsistent with any of the provisions of this
Code are hereby repealed or modified accordingly." ([f], Section
534, RA 7160).
With that repealing clause in RA 7160, it is safe to infer and state
that the tax exemption provided for in RA 6958 creating petitioner
had been expressly repealed by the provisions of the New Local
Government Code of 1991.
So that petitioner in this case has to pay the assessed realty tax of
its properties effective after January 1, 1992 until the present.
This Court's ruling finds expression to give impetus and meaning to
the overall objectives of the New Local Government Code of 1991,
RA 7160. "It is hereby declared the policy of the State that the
territorial and political subdivisions of the State shall enjoy genuine
and meaningful local autonomy to enable them to attain their fullest
 development as self-reliant communities and make them more
effective partners in the attainment of national goals. Towards this
end, the State shall provide for a more responsive and accountable
local government structure instituted through a system of
decentralization whereby local government units shall be given
more powers, authority, responsibilities, and resources. The
process of decentralization shall proceed from the national
government to the local government units. . . .5
Its motion for reconsideration having been denied by the trial court in its 4
May 1995 order, the petitioner filed the instant petition based on the
following assignment of errors:
I RESPONDENT JUDGE ERRED IN FAILING
TO RULE THAT THE PETITIONER IS VESTED
WITH GOVERNMENT POWERS AND
FUNCTIONS WHICH PLACE IT IN THE SAME
CATEGORY AS AN INSTRUMENTALITY OR
AGENCY OF THE GOVERNMENT.
II RESPONDENT JUDGE ERRED IN RULING
THAT PETITIONER IS LIABLE TO PAY REAL
PROPERTY TAXES TO THE CITY OF CEBU.
Anent the first assigned error, the petitioner asserts that although it is a
government-owned or controlled corporation it is mandated to perform
functions in the same category as an instrumentality of Government. An
instrumentality of Government is one created to perform governmental
functions primarily to promote certain aspects of the economic life of the
people.6 Considering its task "not merely to efficiently operate and manage
the Mactan-Cebu International Airport, but more importantly, to carry out the
Government policies of promoting and developing the Central Visayas and
Mindanao regions as centers of international trade and tourism, and
accelerating the development of the means of transportation and
communication in the country,"7and that it is an attached agency of the
Department of Transportation and Communication (DOTC),8 the petitioner
"may stand in [sic] the same footing as an agency or instrumentality of the
national government." Hence, its tax exemption privilege under Section 14 of
its Charter "cannot be considered withdrawn with the passage of the Local
Government Code of 1991 (hereinafter LGC) because Section 133 thereof
specifically states that the taxing powers of local government units shall not
extend to the levy of taxes of fees or charges of any kind on the national
government its agencies and instrumentalities."
As to the second assigned error, the petitioner contends that being an
instrumentality of the National Government, respondent City of Cebu has no
power nor authority to impose realty taxes upon it in accordance with the
aforesaid Section 133 of the LGC, as explained in Basco vs. Philippine
Amusement and Gaming Corporation;9
Local governments have no power to tax instrumentalities of the
National Government. PAGCOR is a government owned or
controlled corporation with an original character, PD 1869. All its
shares of stock are owned by the National Government. . . .
PAGCOR has a dual role, to operate and regulate gambling
casinos. The latter joke is governmental, which places it in the
category of an agency or instrumentality of the Government. Being
an instrumentality of the Government, PAGCOR should be and
actually is exempt from local taxes. Otherwise, its operation might
be burdened, impeded or subjected to control by a mere Local
government.
The states have no power by taxation or otherwise, to retard,
impede, burden or in any manner control the operation of
constitutional laws enacted by Congress to carry into execution the
powers vested in the federal government. (McCulloch v. Maryland,
4 Wheat 316, 4 L Ed. 579).
This doctrine emanates from the "supremacy" of the National
Government over local government.
Justice Holmes, speaking for the Supreme Court, make references
to the entire absence of power on the part of the States to touch, in
that way (taxation) at least, the instrumentalities of the United
States (Johnson v. Maryland, 254 US 51) and it can be agreed that
no state or political subdivision can regulate a federal
instrumentality in such a way as to prevent it from consummating its
federal responsibilities, or even to seriously burden it in the
accomplishment of them. (Antieau Modern Constitutional Law, Vol.
2, p. 140)
Otherwise mere creature of the State can defeat National policies
thru extermination of what local authorities may perceive to be
undesirable activities or enterprise using the power to tax as "a toll
for regulation" (U.S. v. Sanchez, 340 US 42). The power to tax
which was called by Justice Marshall as the "power to destroy"
(McCulloch v. Maryland, supra) cannot be allowed to defeat an
instrumentality or creation of the very entity which has the inherent
power to wield it. (Emphasis supplied)
It then concludes that the respondent Judge "cannot therefore correctly say
that the questioned provisions of the Code do not contain any distinction
between a governmental function as against one performing merely
proprietary ones such that the exemption privilege withdrawn under the said
Code would apply to allgovernment corporations." For it is clear from Section
133, in relation to Section 234, of the LGC that the legislature meant to
exclude instrumentalities of the national government from the taxing power
of the local government units.
In its comment respondent City of Cebu alleges that as local a government
unit and a political subdivision, it has the power to impose, levy, assess, and
collect taxes within its jurisdiction. Such power is guaranteed by the
Constitution10 and enhanced further by the LGC. While it may be true that
under its Charter the petitioner was exempt from the payment of realty
taxes,11 this exemption was withdrawn by Section 234 of the LGC. In
response to the petitioner's claim that such exemption was not repealed
because being an instrumentality of the National Government, Section 133
of the LGC prohibits local government units from imposing taxes, fees, or
charges of any kind on it, respondent City of Cebu points out that the
petitioner is likewise a government-owned corporation, and Section 234
thereof does not distinguish between government-owned corporation, and
Section 234 thereof does not distinguish between government-owned
corporation, and Section 234 thereof does not distinguish between
government-owned or controlled corporations performing governmental and
purely proprietary functions. Respondent city of Cebu urges this the Manila
International Airport Authority is a governmental-owned corporation, 12 and
to reject the application of Basco because it was "promulgated . . . before the
enactment and the singing into law of R.A. No. 7160," and was not,
therefore, decided "in the light of the spirit and intention of the framers of the
said law.
As a general rule, the power to tax is an incident of sovereignty and is
unlimited in its range, acknowledging in its very nature no limits, so that
security against its abuse is to be found only in the responsibility of the
legislature which imposes the tax on the constituency who are to pay it.
Nevertheless, effective limitations thereon may be imposed by the people
through their Constitutions.13 Our Constitution, for instance, provides that the
rule of taxation shall be uniform and equitable and Congress shall evolve a
progressive system of taxation.14 So potent indeed is the power that it was
once opined that "the power to tax involves the power to destroy."15 Verily,
taxation is a destructive power which interferes with the personal and
property for the support of the government. Accordingly, tax statutes must be
construed strictly against the government and liberally in favor of the
taxpayer.16 But since taxes are what we pay for civilized society, 17 or are the
lifeblood of the nation, the law frowns against exemptions from taxation and
statutes granting tax exemptions are thus construed strictissimi juris against
the taxpayers and liberally in favor of the taxing authority. 18 A claim of
exemption from tax payment must be clearly shown and based on language
in the law too plain to be mistaken.19 Elsewise stated, taxation is the rule,
exemption therefrom is the exception.20 However, if the grantee of the
exemption is a political subdivision or instrumentality, the rigid rule of
construction does not apply because the practical effect of the exemption is
merely to reduce the amount of money that has to be handled by the
government in the course of its operations.21
The power to tax is primarily vested in the Congress; however, in our
jurisdiction, it may be exercised by local legislative bodies, no longer merely
by virtue of a valid delegation as before, but pursuant to direct authority
conferred by Section 5, Article X of the Constitution.22 Under the latter, the
exercise of the power may be subject to such guidelines and limitations as
the Congress may provide which, however, must be consistent with the
basic policy of local autonomy.
There can be no question that under Section 14 of R.A. No. 6958 the
petitioner is exempt from the payment of realty taxes imposed by the
National Government or any of its political subdivisions, agencies, and
instrumentalities. Nevertheless, since taxation is the rule and exemption
therefrom the exception, the exemption may thus be withdrawn at the
pleasure of the taxing authority. The only exception to this rule is where the
exemption was granted to private parties based on material consideration of
a mutual nature, which then becomes contractual and is thus covered by the
non-impairment clause of the Constitution.23
The LGC, enacted pursuant to Section 3, Article X of the constitution
provides for the exercise by local government units of their power to tax, the
scope thereof or its limitations, and the exemption from taxation.
Section 133 of the LGC prescribes the common limitations on the taxing
powers of local government units as follows:
Sec. 133. Common Limitations on the Taxing Power of Local
Government Units. — Unless otherwise provided herein, the
exercise of the taxing powers of provinces, cities, municipalities,
and barangays shall not extend to the levy of the following:
(a) Income tax, except when levied on banks and
other financial institutions;
(b) Documentary stamp tax;
(c) Taxes on estates, "inheritance, gifts, legacies
and other acquisitions mortis causa, except as
otherwise provided herein
(d) Customs duties, registration fees of vessels
and wharfage on wharves, tonnage dues, and all
other kinds of customs fees charges and dues
except wharfage on wharves constructed and
maintained by the local government unit
concerned:
(e) Taxes, fees and charges and other imposition
upon goods carried into or out of, or passing
through, the territorial jurisdictions of local
government units in the guise or charges for
wharfages, tolls for bridges or otherwise, or other
taxes, fees or charges in any form whatsoever
upon such goods or merchandise;
(f) Taxes fees or charges on agricultural and
aquatic products when sold by marginal farmers
or fishermen;
(g) Taxes on business enterprise certified to be
the Board of Investment as pioneer or non-
pioneer for a period of six (6) and four (4) years,
respectively from the date of registration;
(h) Excise taxes on articles enumerated under
the National Internal Revenue Code, as
amended, and taxes, fees or charges on
petroleum products;
(i) Percentage or value added tax (VAT) on sales,
barters or exchanges or similar transactions on
goods or services except as otherwise provided
herein;
(j) Taxes on the gross receipts of transportation
contractor and person engage in the
transportation of passengers of freight by hire
and common carriers by air, land, or water,
except as provided in this code;
(k) Taxes on premiums paid by ways reinsurance
or retrocession;
(l) Taxes, fees, or charges for the registration of
motor vehicles and for the issuance of all kinds of
licenses or permits for the driving of thereof,
except, tricycles;
(m) Taxes, fees, or other charges on Philippine
product actually exported, except as otherwise
provided herein;
(n) Taxes, fees, or charges, on Countryside and
Barangay Business Enterprise and Cooperatives
duly registered under R.A. No. 6810 and
Republic Act Numbered Sixty nine hundred thirty-
eight (R.A. No. 6938) otherwise known as the
"Cooperative Code of the Philippines; and
(o) TAXES, FEES, OR CHARGES OF ANY KIND
ON THE NATIONAL GOVERNMENT, ITS
AGENCIES AND INSTRUMENTALITIES, AND
LOCAL GOVERNMENT UNITS. (emphasis
supplied)
Needless to say the last item (item o) is pertinent in this case. The "taxes,
fees or charges" referred to are "of any kind", hence they include all of these,
unless otherwise provided by the LGC. The term "taxes" is well understood
so as to need no further elaboration, especially in the light of the above
enumeration. The term "fees" means charges fixed by law or Ordinance for
the regulation or inspection of business activity,24 while "charges" are
pecuniary liabilities such as rents or fees against person or property. 25
Among the "taxes" enumerated in the LGC is real property tax, which is
governed by Section 232. It reads as follows:
Sec. 232. Power to Levy Real Property Tax. — A province or city or
a municipality within the Metropolitan Manila Area may levy on an
annual ad valorem tax on real property such as land, building,
machinery and other improvements not hereafter specifically
exempted.
Section 234 of LGC provides for the exemptions from payment of real
property taxes and withdraws previous exemptions therefrom granted to
natural and juridical persons, including government owned and controlled
corporations, except as provided therein. It provides:
Sec. 234. Exemptions from Real Property Tax. — The following are
exempted from payment of the real property tax:
(a) Real property owned by the Republic of the
Philippines or any of its political subdivisions
except when the beneficial use thereof had been
granted, for reconsideration or otherwise, to a
taxable person;
(b) Charitable institutions, churches, parsonages
or convents appurtenants thereto, mosques
nonprofits or religious cemeteries and all lands,
building and improvements actually, directly, and
exclusively used for religious charitable or
educational purposes;
(c) All machineries and equipment that are
actually, directly and exclusively used by local
water districts and government-owned or
controlled corporations engaged in the supply
and distribution of water and/or generation and
transmission of electric power;
(d) All real property owned by duly registered
cooperatives as provided for under R.A. No.
6938; and;
 (e) Machinery and equipment used for pollution
control and environmental protection.
Except as provided herein, any exemptions from
payment of real property tax previously granted
to or presently enjoyed by, all persons whether
natural or juridical, including all government
owned or controlled corporations are hereby
withdrawn upon the effectivity of his Code.
These exemptions are based on the ownership, character, and use of the
property. Thus;
(a) Ownership Exemptions. Exemptions from real
property taxes on the basis of ownership are real
properties owned by: (i) the Republic, (ii) a
province, (iii) a city, (iv) a municipality, (v) a
barangay, and (vi) registered cooperatives.
(b) Character Exemptions. Exempted from real
property taxes on the basis of their character are:
(i) charitable institutions, (ii) houses and temples
of prayer like churches, parsonages or convents
appurtenant thereto, mosques, and (iii) non profit
or religious cemeteries.
(c) Usage exemptions. Exempted from real
property taxes on the basis of the actual, direct
and exclusive use to which they are devoted are:
(i) all lands buildings and improvements which
are actually, directed and exclusively used for
religious, charitable or educational purpose; (ii)
all machineries and equipment actually, directly
and exclusively used or by local water districts or
by government-owned or controlled corporations
engaged in the supply and distribution of water
and/or generation and transmission of electric
power; and (iii) all machinery and equipment
used for pollution control and environmental
protection.
To help provide a healthy environment in the midst of the
modernization of the country, all machinery and equipment for
pollution control and environmental protection may not be taxed by
local governments.
2. Other Exemptions Withdrawn. All other
exemptions previously granted to natural or
juridical persons including government-owned or
controlled corporations are withdrawn upon the
effectivity of the Code.26
Section 193 of the LGC is the general provision on withdrawal of tax
exemption privileges. It provides:
Sec. 193. Withdrawal of Tax Exemption Privileges. — Unless
otherwise provided in this code, tax exemptions or incentives
granted to or presently enjoyed by all persons, whether natural or
juridical, including government-owned, or controlled corporations,
except local water districts, cooperatives duly registered under R.A.
6938, non stock and non profit hospitals and educational
constitutions, are hereby withdrawn upon the effectivity of this
Code.
On the other hand, the LGC authorizes local government units to grant tax
exemption privileges. Thus, Section 192 thereof provides:
Sec. 192. Authority to Grant Tax Exemption Privileges. — Local
government units may, through ordinances duly approved, grant tax
exemptions, incentives or reliefs under such terms and conditions
as they may deem necessary.
The foregoing sections of the LGC speaks of: (a) the limitations on the taxing
powers of local government units and the exceptions to such limitations; and
(b) the rule on tax exemptions and the exceptions thereto. The use
of exceptions of provisos in these section, as shown by the following
clauses:
(1) "unless otherwise provided herein" in the
opening paragraph of Section 133;
(2) "Unless otherwise provided in this Code" in
section 193;
(3) "not hereafter specifically exempted" in
Section 232; and
(4) "Except as provided herein" in the last
paragraph of Section 234
initially hampers a ready understanding of the sections. Note, too, that the
aforementioned clause in section 133 seems to be inaccurately worded.
Instead of the clause "unless otherwise provided herein," with the "herein" to
mean, of course, the section, it should have used the clause "unless
otherwise provided in this Code." The former results in absurdity since the
section itself enumerates what are beyond the taxing powers of local
government units and, where exceptions were intended, the exceptions were
explicitly indicated in the text. For instance, in item (a) which excepts the
income taxes "when livied on banks and other financial institutions", item (d)
which excepts "wharfage on wharves constructed and maintained by the
local government until concerned"; and item (1) which excepts taxes, fees,
and charges for the registration and issuance of license or permits for the
driving of "tricycles". It may also be observed that within the body itself of the
section, there are exceptions which can be found only in other parts of the
LGC, but the section interchangeably uses therein the clause "except as
otherwise provided herein" as in items (c) and (i), or the clause "except as
otherwise provided herein" as in items (c) and (i), or the clause "excepts as
provided in this Code" in item (j). These clauses would be obviously
unnecessary or mere surplus-ages if the opening clause of the section were"
"Unless otherwise provided in this Code" instead of "Unless otherwise
provided herein". In any event, even if the latter is used, since under Section
232 local government units have the power to levy real property tax, except
those exempted therefrom under Section 234, then Section 232 must be
deemed to qualify Section 133.
Thus, reading together Section 133, 232 and 234 of the LGC, we conclude
that as a general rule, as laid down in Section 133 the taxing powers of local
government units cannot extend to the levy of inter alia, "taxes, fees, and
charges of any kind of the National Government, its agencies and
instrumentalties, and local government units"; however, pursuant to Section
232, provinces, cities, municipalities in the Metropolitan Manila Area may
impose the real property tax except on, inter alia, "real property owned by
the Republic of the Philippines or any of its political subdivisions except
when the beneficial used thereof has been granted, for consideration or
otherwise, to a taxable person", as provided in item (a) of the first paragraph
of Section 234.
As to tax exemptions or incentives granted to or presently enjoyed by natural
or juridical persons, including government-owned and controlled
corporations, Section 193 of the LGC prescribes the general rule, viz., they
are withdrawn upon the effectivity of the LGC, except upon the effectivity of
the LGC, except those granted to local water districts, cooperatives duly
registered under R.A. No. 6938, non stock and non-profit hospitals and
educational institutions, and unless otherwise provided in the LGC. The
latter proviso could refer to Section 234, which enumerates the properties
exempt from real property tax. But the last paragraph of Section 234 further
qualifies the retention of the exemption in so far as the real property taxes
are concerned by limiting the retention only to those enumerated there-in; all
others not included in the enumeration lost the privilege upon the effectivity
of the LGC. Moreover, even as the real property is owned by the Republic of
the Philippines, or any of its political subdivisions covered by item (a) of the
first paragraph of Section 234, the exemption is withdrawn if the beneficial
use of such property has been granted to taxable person for consideration or
otherwise.
Since the last paragraph of Section 234 unequivocally withdrew, upon the
effectivity of the LGC, exemptions from real property taxes granted to natural
or juridical persons, including government-owned or controlled corporations,
except as provided in the said section, and the petitioner is, undoubtedly, a
government-owned corporation, it necessarily follows that its exemption from
such tax granted it in Section 14 of its charter, R.A. No. 6958, has been
withdrawn. Any claim to the contrary can only be justified if the petitioner can
seek refuge under any of the exceptions provided in Section 234, but not
under Section 133, as it now asserts, since, as shown above, the said
section is qualified by Section 232 and 234.
In short, the petitioner can no longer invoke the general rule in Section 133
that the taxing powers of the local government units cannot extend to the
levy of:
(o) taxes, fees, or charges of any kind on the
National Government, its agencies, or
instrumentalities, and local government units.
I must show that the parcels of land in question, which are real property, are
any one of those enumerated in Section 234, either by virtue of ownership,
character, or use of the property. Most likely, it could only be the first, but not
under any explicit provision of the said section, for one exists. In light of the
petitioner's theory that it is an "instrumentality of the Government", it could
only be within be first item of the first paragraph of the section by expanding
the scope of the terms Republic of the Philippines" to embrace . . . . .
. "instrumentalities" and "agencies" or expediency we quote:
(a) real property owned by the Republic of the
Philippines, or any of the Philippines, or any of its
political subdivisions except when the beneficial
use thereof has been granted, for consideration
or otherwise, to a taxable person.
This view does not persuade us. In the first place, the petitioner's claim that
it is an instrumentality of the Government is based on Section 133(o), which
expressly mentions the word "instrumentalities"; and in the second place it
fails to consider the fact that the legislature used the phrase "National
Government, its agencies and instrumentalities" "in Section 133(o),but only
the phrase "Republic of the Philippines or any of its political subdivision "in
Section 234(a).
The terms "Republic of the Philippines" and "National Government" are not
interchangeable. The former is boarder and synonymous with "Government
of the Republic of the Philippines" which the Administrative Code of the 1987
defines as the "corporate governmental entity though which the functions of
the government are exercised through at the Philippines, including, saves as
the contrary appears from the context, the various arms through which
political authority is made effective in the Philippines, whether pertaining to
the autonomous reason, the provincial, city, municipal or barangay
subdivision or other forms of local government." 27 These autonomous
regions, provincial, city, municipal or barangay subdivisions" are the political
subdivision.28
On the other hand, "National Government" refers "to the entire machinery of
the central government, as distinguished from the different forms of local
Governments."29 The National Government then is composed of the three
great departments the executive, the legislative and the judicial.30
An "agency" of the Government refers to "any of the various units of the
Government, including a department, bureau, office instrumentality, or
government-owned or controlled corporation, or a local government or a
distinct unit therein;"31 while an "instrumentality" refers to "any agency of the
National Government, not integrated within the department framework,
vested with special functions or jurisdiction by law, endowed with some if not
all corporate powers, administering special funds, and enjoying operational
autonomy; usually through a charter. This term includes regulatory agencies,
chartered institutions and government-owned and controlled corporations".32
If Section 234(a) intended to extend the exception therein to the withdrawal
of the exemption from payment of real property taxes under the last
sentence of the said section to the agencies and instrumentalities of the
National Government mentioned in Section 133(o), then it should have
restated the wording of the latter. Yet, it did not Moreover, that Congress did
not wish to expand the scope of the exemption in Section 234(a) to include
real property owned by other instrumentalities or agencies of the
government including government-owned and controlled corporations is
further borne out by the fact that the source of this exemption is Section
40(a) of P.D. No. 646, otherwise known as the Real Property Tax Code,
which reads:
Sec 40. Exemption from Real Property Tax. — The exemption shall
be as follows:
(a) Real property owned by the
Republic of the Philippines or
any of its political subdivisions
and any government-owned or
controlled corporations so
exempt by is charter: Provided,
however, that this exemption
shall not apply to real property
of the above mentioned entities
the beneficial use of which has
been granted, for consideration
or otherwise, to a taxable
person.
Note that as a reproduced in Section 234(a), the phrase "and any
government-owned or controlled corporation so exempt by its charter" was
excluded. The justification for this restricted exemption in Section 234(a)
seems obvious: to limit further tax exemption privileges, specially in light of
the general provision on withdrawal of exemption from payment of real
property taxes in the last paragraph of property taxes in the last paragraph of
Section 234. These policy considerations are consistent with the State policy
to ensure autonomy to local governments33 and the objective of the LGC that
they enjoy genuine and meaningful local autonomy to enable them to attain
their fullest development as self-reliant communities and make them
effective partners in the attainment of national goals.34 The power to tax is
the most effective instrument to raise needed revenues to finance and
support myriad activities of local government units for the delivery of basic
services essential to the promotion of the general welfare and the
enhancement of peace, progress, and prosperity of the people. It may also
be relevant to recall that the original reasons for the withdrawal of tax
exemption privileges granted to government-owned and controlled
corporations and all other units of government were that such privilege
resulted in serious tax base erosion and distortions in the tax treatment of
similarly situated enterprises, and there was a need for this entities to share
in the requirements of the development, fiscal or otherwise, by paying the
taxes and other charges due from them.35
The crucial issues then to be addressed are: (a) whether the parcels of land
in question belong to the Republic of the Philippines whose beneficial use
has been granted to the petitioner, and (b) whether the petitioner is a
"taxable person".
Section 15 of the petitioner's Charter provides:
Sec. 15. Transfer of Existing Facilities and Intangible Assets. — All
existing public airport facilities, runways, lands, buildings and other
properties, movable or immovable, belonging to or presently
administered by the airports, and all assets, powers, rights,
interests and privileges relating on airport works, or air operations,
including all equipment which are necessary for the operations of
air navigation, acrodrome control towers, crash, fire, and rescue
facilities are hereby transferred to the Authority: Provided however,
that the operations control of all equipment necessary for the
operation of radio aids to air navigation, airways communication,
the approach control office, and the area control center shall be
retained by the Air Transportation Office. No equipment, however,
shall be removed by the Air Transportation Office from Mactan
without the concurrence of the authority. The authority may assist in
the maintenance of the Air Transportation Office equipment.
The "airports" referred to are the "Lahug Air Port" in Cebu City and the
"Mactan International AirPort in the Province of Cebu", 36 which belonged to
the Republic of the Philippines, then under the Air Transportation Office
(ATO).37
It may be reasonable to assume that the term "lands" refer to "lands" in
Cebu City then administered by the Lahug Air Port and includes the parcels
of land the respondent City of Cebu seeks to levy on for real property taxes.
This section involves a "transfer" of the "lands" among other things, to the
petitioner and not just the transfer of the beneficial use thereof, with the
ownership being retained by the Republic of the Philippines.

This "transfer" is actually an absolute conveyance of the ownership thereof

because the petitioner's authorized capital stock consists of, inter alia "the
value of such real estate owned and/or administered by the
airports."38 Hence, the petitioner is now the owner of the land in question
and the exception in Section 234(c) of the LGC is inapplicable.

Moreover, the petitioner cannot claim that it was never a "taxable person"
under its Charter. It was only exempted from the payment of real property
taxes. The grant of the privilege only in respect of this tax is conclusive proof
of the legislative intent to make it a taxable person subject to all taxes,
except real property tax.

Finally, even if the petitioner was originally not a taxable person for purposes
of real property tax, in light of the forgoing disquisitions, it had already
become even if it be conceded to be an "agency" or "instrumentality" of the
Government, a taxable person for such purpose in view of the withdrawal in
the last paragraph of Section 234 of exemptions from the payment of real
property taxes, which, as earlier adverted to, applies to the petitioner.

Accordingly, the position taken by the petitioner is untenable. Reliance

on Basco vs. Philippine Amusement and Gaming Corporation39 is unavailing
since it was decided before the effectivity of the LGC. Besides, nothing can
prevent Congress from decreeing that even instrumentalities or agencies of
the government performing governmental functions may be subject to tax.
Where it is done precisely to fulfill a constitutional mandate and national
policy, no one can doubt its wisdom.

WHEREFORE, the instant petition is DENIED. The challenged decision and

order of the Regional Trial Court of Cebu, Branch 20, in Civil Case No. CEB-
16900 are AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 159796 July 17, 2007
ROMEO P. GEROCHI, KATULONG NG BAYAN (KB) and ENVIRONMENTALIST
CONSUMERS NETWORK, INC. (ECN), Petitioners,
vs.
DEPARTMENT OF ENERGY (DOE), ENERGY REGULATORY COMMISSION
(ERC), NATIONAL POWER CORPORATION (NPC), POWER SECTOR ASSETS
AND LIABILITIES MANAGEMENT GROUP (PSALM Corp.), STRATEGIC POWER
UTILITIES GROUP (SPUG), and PANAY ELECTRIC COMPANY INC.
(PECO),Respondents.
DECISION
NACHURA, J.:
Petitioners Romeo P. Gerochi, Katulong Ng Bayan (KB), and Environmentalist
Consumers Network, Inc. (ECN) (petitioners), come before this Court in this original
action praying that Section 34 of Republic Act (RA) 9136, otherwise known as the
"Electric Power Industry Reform Act of 2001" (EPIRA), imposing the Universal
Charge,1and Rule 18 of the Rules and Regulations (IRR)2 which seeks to implement
the said imposition, be declared unconstitutional. Petitioners also pray that the
Universal Charge imposed upon the consumers be refunded and that a preliminary
injunction and/or temporary restraining order (TRO) be issued directing the
respondents to refrain from implementing, charging, and collecting the said
charge.3 The assailed provision of law reads:
SECTION 34. Universal Charge. — Within one (1) year from the effectivity of this Act,
a universal charge to be determined, fixed and approved by the ERC, shall be
imposed on all electricity end-users for the following purposes:
(a) Payment for the stranded debts4 in excess of the amount assumed by
the National Government and stranded contract costs of NPC5 and as well
as qualified stranded contract costs of distribution utilities resulting from the
restructuring of the industry;
(b) Missionary electrification;6
(c) The equalization of the taxes and royalties applied to indigenous or
renewable sources of energy vis-à-vis imported energy fuels;
(d) An environmental charge equivalent to one-fourth of one centavo per
kilowatt-hour (₱0.0025/kWh), which shall accrue to an environmental fund to
be used solely for watershed rehabilitation and management. Said fund shall
be managed by NPC under existing arrangements; and
(e) A charge to account for all forms of cross-subsidies for a period not
exceeding three (3) years.
The universal charge shall be a non-bypassable charge which shall be passed on and
collected from all end-users on a monthly basis by the distribution utilities. Collections
by the distribution utilities and the TRANSCO in any given month shall be remitted to
the PSALM Corp. on or before the fifteenth (15th) of the succeeding month, net of any
amount due to the distribution utility. Any end-user or self-generating entity not
connected to a distribution utility shall remit its corresponding universal charge
directly to the TRANSCO. The PSALM Corp., as administrator of the fund, shall
create a Special Trust Fund which shall be disbursed only for the purposes specified
herein in an open and transparent manner. All amount collected for the universal
charge shall be distributed to the respective beneficiaries within a reasonable period
to be provided by the ERC.
The Facts
Congress enacted the EPIRA on June 8, 2001; on June 26, 2001, it took effect. 7
On April 5, 2002, respondent National Power Corporation-Strategic Power Utilities
Group8 (NPC-SPUG) filed with respondent Energy Regulatory Commission (ERC) a
petition for the availment from the Universal Charge of its share for Missionary
Electrification, docketed as ERC Case No. 2002-165.9
On May 7, 2002, NPC filed another petition with ERC, docketed as ERC Case No.
2002-194, praying that the proposed share from the Universal Charge for the
Environmental charge of ₱0.0025 per kilowatt-hour (/kWh), or a total of
₱119,488,847.59, be approved for withdrawal from the Special Trust Fund (STF)
managed by respondent Power Sector Assets and
Liabilities Management Group (PSALM)10 for the rehabilitation and management of
watershed areas.11
On December 20, 2002, the ERC issued an Order12 in ERC Case No. 2002-165
provisionally approving the computed amount of ₱0.0168/kWh as the share of the
NPC-SPUG from the Universal Charge for Missionary Electrification and authorizing
the National Transmission Corporation (TRANSCO) and Distribution Utilities to collect
the same from its end-users on a monthly basis.
On June 26, 2003, the ERC rendered its Decision13 (for ERC Case No. 2002-165)
modifying its Order of December 20, 2002, thus:
WHEREFORE, the foregoing premises considered, the provisional authority granted
to petitioner National Power Corporation-Strategic Power Utilities Group (NPC-SPUG)
in the Order dated December 20, 2002 is hereby modified to the effect that an
additional amount of ₱0.0205 per kilowatt-hour should be added to the ₱0.0168 per
kilowatt-hour provisionally authorized by the Commission in the said Order.
Accordingly, a total amount of ₱0.0373 per kilowatt-hour is hereby APPROVED for
withdrawal from the Special Trust Fund managed by PSALM as its share from the
Universal Charge for Missionary Electrification (UC-ME) effective on the following
billing cycles:
(a) June 26-July 25, 2003 for National Transmission Corporation
(TRANSCO); and
(b) July 2003 for Distribution Utilities (Dus).
Relative thereto, TRANSCO and Dus are directed to collect the UC-ME in the amount
of ₱0.0373 per kilowatt-hour and remit the same to PSALM on or before the 15th day
of the succeeding month.
In the meantime, NPC-SPUG is directed to submit, not later than April 30, 2004, a
detailed report to include Audited Financial Statements and physical status
(percentage of completion) of the projects using the prescribed format.1avvphi1
Let copies of this Order be furnished petitioner NPC-SPUG and all distribution utilities
(Dus).
SO ORDERED.
On August 13, 2003, NPC-SPUG filed a Motion for Reconsideration asking the ERC,
among others,14 to set aside the above-mentioned Decision, which the ERC granted
in its Order dated October 7, 2003, disposing:
WHEREFORE, the foregoing premises considered, the "Motion for Reconsideration"
filed by petitioner National Power Corporation-Small Power Utilities Group (NPC-
SPUG) is hereby GRANTED. Accordingly, the Decision dated June 26, 2003 is
hereby modified accordingly.
Relative thereto, NPC-SPUG is directed to submit a quarterly report on the following:
1. Projects for CY 2002 undertaken;
2. Location
3. Actual amount utilized to complete the project;
4. Period of completion;
5. Start of Operation; and
6. Explanation of the reallocation of UC-ME funds, if any.
SO ORDERED.15
Meanwhile, on April 2, 2003, ERC decided ERC Case No. 2002-194, authorizing the
NPC to draw up to ₱70,000,000.00 from PSALM for its 2003 Watershed
Rehabilitation Budget subject to the availability of funds for the Environmental Fund
component of the Universal Charge.16
On the basis of the said ERC decisions, respondent Panay Electric Company, Inc.
(PECO) charged petitioner Romeo P. Gerochi and all other end-users with the
Universal Charge as reflected in their respective electric bills starting from the month
of July 2003.17
Hence, this original action.
Petitioners submit that the assailed provision of law and its IRR which sought to
implement the same are unconstitutional on the following grounds:
1) The universal charge provided for under Sec. 34 of the EPIRA and sought
to be implemented under Sec. 2, Rule 18 of the IRR of the said law is a tax
which is to be collected from all electric end-users and self-generating
entities. The power to tax is strictly a legislative function and as such, the
delegation of said power to any executive or administrative agency like the
ERC is unconstitutional, giving the same unlimited authority. The assailed
provision clearly provides that the Universal Charge is to be determined,
fixed and approved by the ERC, hence leaving to the latter complete
discretionary legislative authority.
2) The ERC is also empowered to approve and determine where the funds
collected should be used.
3) The imposition of the Universal Charge on all end-users is oppressive and
confiscatory and amounts to taxation without representation as the
consumers were not given a chance to be heard and represented.18
Petitioners contend that the Universal Charge has the characteristics of a tax and is
collected to fund the operations of the NPC. They argue that the cases 19 invoked by
the respondents clearly show the regulatory purpose of the charges imposed therein,
which is not so in the case at bench. In said cases, the respective funds20 were
created in order to balance and stabilize the prices of oil and sugar, and to act as
buffer to counteract the changes and adjustments in prices, peso devaluation, and
other variables which cannot be adequately and timely monitored by the legislature.
Thus, there was a need to delegate powers to administrative bodies. 21 Petitioners
posit that the Universal Charge is imposed not for a similar purpose.
On the other hand, respondent PSALM through the Office of the Government
Corporate Counsel (OGCC) contends that unlike a tax which is imposed to provide
income for public purposes, such as support of the government, administration of the
law, or payment of public expenses, the assailed Universal Charge is levied for a
specific regulatory purpose, which is to ensure the viability of the country's electric
power industry. Thus, it is exacted by the State in the exercise of its inherent police
power. On this premise, PSALM submits that there is no undue delegation of
legislative power to the ERC since the latter merely exercises a limited authority or
discretion as to the execution and implementation of the provisions of the EPIRA.22
Respondents Department of Energy (DOE), ERC, and NPC, through the Office of the
Solicitor General (OSG), share the same view that the Universal Charge is not a tax
because it is levied for a specific regulatory purpose, which is to ensure the viability of
the country's electric power industry, and is, therefore, an exaction in the exercise of
the State's police power. Respondents further contend that said Universal Charge
does not possess the essential characteristics of a tax, that its imposition would
redound to the benefit of the electric power industry and not to the public, and that its
rate is uniformly levied on electricity end-users, unlike a tax which is imposed based
on the individual taxpayer's ability to pay. Moreover, respondents deny that there is
undue delegation of legislative power to the ERC since the EPIRA sets forth sufficient
determinable standards which would guide the ERC in the exercise of the powers
granted to it. Lastly, respondents argue that the imposition of the Universal Charge is
not oppressive and confiscatory since it is an exercise of the police power of the State
and it complies with the requirements of due process.23
On its part, respondent PECO argues that it is duty-bound to collect and remit the
amount pertaining to the Missionary Electrification and Environmental Fund
components of the Universal Charge, pursuant to Sec. 34 of the EPIRA and the
Decisions in ERC Case Nos. 2002-194 and 2002-165. Otherwise, PECO could be
held liable under Sec. 4624 of the EPIRA, which imposes fines and penalties for any
violation of its provisions or its IRR.25
The Issues
The ultimate issues in the case at bar are:
1) Whether or not, the Universal Charge imposed under Sec. 34 of the
EPIRA is a tax; and
2) Whether or not there is undue delegation of legislative power to tax on the
part of the ERC.26
Before we discuss the issues, the Court shall first deal with an obvious procedural
lapse.
Petitioners filed before us an original action particularly denominated as a Complaint
assailing the constitutionality of Sec. 34 of the EPIRA imposing the Universal Charge
and Rule 18 of the EPIRA's IRR. No doubt, petitioners havelocus standi. They impugn
the constitutionality of Sec. 34 of the EPIRA because they sustained a direct injury as
a result of the imposition of the Universal Charge as reflected in their electric bills.
However, petitioners violated the doctrine of hierarchy of courts when they filed this
"Complaint" directly with us. Furthermore, the Complaint is bereft of any allegation of
grave abuse of discretion on the part of the ERC or any of the public respondents, in
order for the Court to consider it as a petition for certiorari or prohibition.
Article VIII, Section 5(1) and (2) of the 1987 Constitution27 categorically provides that:
SECTION 5. The Supreme Court shall have the following powers:
1. Exercise original jurisdiction over cases affecting ambassadors, other
public ministers and consuls, and over petitions for certiorari, prohibition,
mandamus, quo warranto, and habeas corpus.
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the
law or the rules of court may provide, final judgments and orders of lower
courts in:
(a) All cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
But this Court's jurisdiction to issue writs of certiorari, prohibition, mandamus, quo
warranto, and habeas corpus, while concurrent with that of the regional trial courts
and the Court of Appeals, does not give litigants unrestrained freedom of choice of
forum from which to seek such relief.28 It has long been established that this Court will
not entertain direct resort to it unless the redress desired cannot be obtained in the
appropriate courts, or where exceptional and compelling circumstances justify
availment of a remedy within and call for the exercise of our primary
jurisdiction.29 This circumstance alone warrants the outright dismissal of the present
action.
This procedural infirmity notwithstanding, we opt to resolve the constitutional issue
raised herein. We are aware that if the constitutionality of Sec. 34 of the EPIRA is not
resolved now, the issue will certainly resurface in the near future, resulting in a repeat
of this litigation, and probably involving the same parties. In the public interest and to
avoid unnecessary delay, this Court renders its ruling now.
The instant complaint is bereft of merit.
The First Issue
To resolve the first issue, it is necessary to distinguish the State’s power of taxation
from the police power.
The power to tax is an incident of sovereignty and is unlimited in its range,
acknowledging in its very nature no limits, so that security against its abuse is to be
found only in the responsibility of the legislature which imposes the tax on the
constituency that is to pay it.30 It is based on the principle that taxes are the lifeblood
of the government, and their prompt and certain availability is an imperious
need.31 Thus, the theory behind the exercise of the power to tax emanates from
necessity; without taxes, government cannot fulfill its mandate of promoting the
general welfare and well-being of the people.32
On the other hand, police power is the power of the state to promote public welfare by
restraining and regulating the use of liberty and property. 33 It is the most pervasive,
the least limitable, and the most demanding of the three fundamental powers of the
State. The justification is found in the Latin maxims salus populi est suprema lex (the
welfare of the people is the supreme law) and sic utere tuo ut alienum non laedas (so
use your property as not to injure the property of others). As an inherent attribute of
sovereignty which virtually extends to all public needs, police power grants a wide
panoply of instruments through which the State, as parens patriae, gives effect to a
host of its regulatory powers.34 We have held that the power to "regulate" means the
power to protect, foster, promote, preserve, and control, with due regard for the
interests, first and foremost, of the public, then of the utility and of its patrons.35
The conservative and pivotal distinction between these two powers rests in the
purpose for which the charge is made. If generation of revenue is the primary purpose
and regulation is merely incidental, the imposition is a tax; but if regulation is the
primary purpose, the fact that revenue is incidentally raised does not make the
imposition a tax.36
In exacting the assailed Universal Charge through Sec. 34 of the EPIRA, the State's
police power, particularly its regulatory dimension, is invoked. Such can be deduced
from Sec. 34 which enumerates the purposes for which the Universal Charge is
imposed37 and which can be amply discerned as regulatory in character. The EPIRA
resonates such regulatory purposes, thus:
SECTION 2. Declaration of Policy. — It is hereby declared the policy of the State:
(a) To ensure and accelerate the total electrification of the country;
(b) To ensure the quality, reliability, security and affordability of the supply of
electric power;
(c) To ensure transparent and reasonable prices of electricity in a regime of
free and fair competition and full public accountability to achieve greater
operational and economic efficiency and enhance the competitiveness of
Philippine products in the global market;
(d) To enhance the inflow of private capital and broaden the ownership base
of the power generation, transmission and distribution sectors;
(e) To ensure fair and non-discriminatory treatment of public and private
sector entities in the process of restructuring the electric power industry;
(f) To protect the public interest as it is affected by the rates and services of
electric utilities and other providers of electric power;
(g) To assure socially and environmentally compatible energy sources and
infrastructure;
(h) To promote the utilization of indigenous and new and renewable energy
resources in power generation in order to reduce dependence on imported
energy;
(i) To provide for an orderly and transparent privatization of the assets and
liabilities of the National Power Corporation (NPC);
(j) To establish a strong and purely independent regulatory body and system
to ensure consumer protection and enhance the competitive operation of the
electricity market; and
(k) To encourage the efficient use of energy and other modalities of demand
side management.
From the aforementioned purposes, it can be gleaned that the assailed Universal
Charge is not a tax, but an exaction in the exercise of the State's police power. Public
welfare is surely promoted.
Moreover, it is a well-established doctrine that the taxing power may be used as an
implement of police power.38 In Valmonte v. Energy Regulatory Board, et al.39 and
in Gaston v. Republic Planters Bank,40 this Court held that the Oil Price Stabilization
Fund (OPSF) and the Sugar Stabilization Fund (SSF) were exactions made in the
exercise of the police power. The doctrine was reiterated in Osmeña v. Orbos41 with
respect to the OPSF. Thus, we disagree with petitioners that the instant case is
different from the aforementioned cases. With the Universal Charge, a Special Trust
Fund (STF) is also created under the administration of PSALM.42 The STF has some
notable characteristics similar to the OPSF and the SSF, viz.:
1) In the implementation of stranded cost recovery, the ERC shall conduct a
review to determine whether there is under-recovery or over recovery and
adjust (true-up) the level of the stranded cost recovery charge. In case of an
over-recovery, the ERC shall ensure that any excess amount shall be
remitted to the STF. A separate account shall be created for these amounts
which shall be held in trust for any future claims of distribution utilities for
stranded cost recovery. At the end of the stranded cost recovery period, any
remaining amount in this account shall be used to reduce the electricity rates
to the end-users.43
2) With respect to the assailed Universal Charge, if the total amount
collected for the same is greater than the actual availments against it, the
PSALM shall retain the balance within the STF to pay for periods where a
shortfall occurs.44
 3) Upon expiration of the term of PSALM, the administration of the STF shall
be transferred to the DOF or any of the DOF attached agencies as
designated by the DOF Secretary.45
The OSG is in point when it asseverates:
Evidently, the establishment and maintenance of the Special Trust Fund, under the
last paragraph of Section 34, R.A. No. 9136, is well within the pervasive and non-
waivable power and responsibility of the government to secure the physical and
economic survival and well-being of the community, that comprehensive sovereign
authority we designate as the police power of the State. 46
This feature of the Universal Charge further boosts the position that the same is an
exaction imposed primarily in pursuit of the State's police objectives. The STF
reasonably serves and assures the attainment and perpetuity of the purposes for
which the Universal Charge is imposed, i.e., to ensure the viability of the country's
electric power industry.
The Second Issue
The principle of separation of powers ordains that each of the three branches of
government has exclusive cognizance of and is supreme in matters falling within its
own constitutionally allocated sphere. A logical corollary to the doctrine of separation
of powers is the principle of non-delegation of powers, as expressed in the Latin
maxim potestas delegata non delegari potest (what has been delegated cannot be
delegated). This is based on the ethical principle that such delegated power
constitutes not only a right but a duty to be performed by the delegate through the
instrumentality of his own judgment and not through the intervening mind of
another. 47
In the face of the increasing complexity of modern life, delegation of legislative power
to various specialized administrative agencies is allowed as an exception to this
principle.48 Given the volume and variety of interactions in today's society, it is
doubtful if the legislature can promulgate laws that will deal adequately with and
respond promptly to the minutiae of everyday life. Hence, the need to delegate to
administrative bodies - the principal agencies tasked to execute laws in their
specialized fields - the authority to promulgate rules and regulations to implement a
given statute and effectuate its policies. All that is required for the valid exercise of
this power of subordinate legislation is that the regulation be germane to the objects
and purposes of the law and that the regulation be not in contradiction to, but in
conformity with, the standards prescribed by the law. These requirements are
denominated as the completeness test and the sufficient standard test.
Under the first test, the law must be complete in all its terms and conditions when it
leaves the legislature such that when it reaches the delegate, the only thing he will
have to do is to enforce it. The second test mandates adequate guidelines or
limitations in the law to determine the boundaries of the delegate's authority and
prevent the delegation from running riot.49
The Court finds that the EPIRA, read and appreciated in its entirety, in relation to Sec.
34 thereof, is complete in all its essential terms and conditions, and that it contains
sufficient standards.
Although Sec. 34 of the EPIRA merely provides that "within one (1) year from the
effectivity thereof, a Universal Charge to be determined, fixed and approved by the
ERC, shall be imposed on all electricity end-users," and therefore, does not state the
specific amount to be paid as Universal Charge, the amount nevertheless is made
certain by the legislative parameters provided in the law itself. For one, Sec. 43(b)(ii)
of the EPIRA provides:
SECTION 43. Functions of the ERC. — The ERC shall promote competition,
encourage market development, ensure customer choice and penalize abuse of
market power in the restructured electricity industry. In appropriate cases, the ERC is
authorized to issue cease and desist order after due notice and hearing. Towards this
end, it shall be responsible for the following key functions in the restructured industry:
xxxx
(b) Within six (6) months from the effectivity of this Act, promulgate and enforce, in
accordance with law, a National Grid Code and a Distribution Code which shall
include, but not limited to the following:
xxxx
(ii) Financial capability standards for the generating companies, the TRANSCO,
distribution utilities and suppliers: Provided, That in the formulation of the financial
capability standards, the nature and function of the entity shall be considered:
Provided, further, That such standards are set to ensure that the electric power
industry participants meet the minimum financial standards to protect the public
interest. Determine, fix, and approve, after due notice and public hearings the
universal charge, to be imposed on all electricity end-users pursuant to Section 34
hereof;
Moreover, contrary to the petitioners’ contention, the ERC does not enjoy a wide
latitude of discretion in the determination of the Universal Charge. Sec. 51(d) and (e)
of the EPIRA50 clearly provides:
SECTION 51. Powers. — The PSALM Corp. shall, in the performance of its functions
and for the attainment of its objective, have the following powers:
xxxx
(d) To calculate the amount of the stranded debts and stranded contract
costs of NPC which shall form the basis for ERC in the determination of
the universal charge;
 (e) To liquidate the NPC stranded contract costs, utilizing the proceeds from
sales and other property contributed to it, including the proceeds from the
universal charge.
Thus, the law is complete and passes the first test for valid delegation of legislative
power.
As to the second test, this Court had, in the past, accepted as sufficient standards the
following: "interest of law and order;"51 "adequate and efficient instruction;"52 "public
interest;"53 "justice and equity;"54 "public convenience and welfare;"55 "simplicity,
economy and efficiency;"56 "standardization and regulation of medical
education;"57 and "fair and equitable employment practices."58 Provisions of the
EPIRA such as, among others, "to ensure the total electrification of the country and
the quality, reliability, security and affordability of the supply of electric power" 59 and
"watershed rehabilitation and management"60 meet the requirements for valid
delegation, as they provide the limitations on the ERC’s power to formulate the IRR.
These are sufficient standards.
It may be noted that this is not the first time that the ERC's conferred powers were
challenged. In Freedom from Debt Coalition v. Energy Regulatory Commission,61 the
Court had occasion to say:
In determining the extent of powers possessed by the ERC, the provisions of the
EPIRA must not be read in separate parts. Rather, the law must be read in its
entirety, because a statute is passed as a whole, and is animated by one general
purpose and intent. Its meaning cannot to be extracted from any single part thereof
but from a general consideration of the statute as a whole. Considering the intent of
Congress in enacting the EPIRA and reading the statute in its entirety, it is plain to
see that the law has expanded the jurisdiction of the regulatory body, the ERC in this
case, to enable the latter to implement the reforms sought to be accomplished by the
EPIRA. When the legislators decided to broaden the jurisdiction of the ERC, they did
not intend to abolish or reduce the powers already conferred upon ERC's
predecessors. To sustain the view that the ERC possesses only the powers and
functions listed under Section 43 of the EPIRA is to frustrate the objectives of the law.
In his Concurring and Dissenting Opinion62 in the same case, then Associate Justice,
now Chief Justice, Reynato S. Puno described the immensity of police power in
relation to the delegation of powers to the ERC and its regulatory functions over
electric power as a vital public utility, to wit:
Over the years, however, the range of police power was no longer limited to the
preservation of public health, safety and morals, which used to be the primary social
interests in earlier times. Police power now requires the State to "assume an
affirmative duty to eliminate the excesses and injustices that are the concomitants of
an unrestrained industrial economy." Police power is now exerted "to further the
public welfare — a concept as vast as the good of society itself." Hence, "police
power is but another name for the governmental authority to further the welfare of
society that is the basic end of all government." When police power is delegated to
administrative bodies with regulatory functions, its exercise should be given a wide
latitude. Police power takes on an even broader dimension in developing countries
such as ours, where the State must take a more active role in balancing the many
conflicting interests in society. The Questioned Order was issued by the ERC, acting
as an agent of the State in the exercise of police power. We should have
exceptionally good grounds to curtail its exercise. This approach is more compelling
in the field of rate-regulation of electric power rates. Electric power generation and
distribution is a traditional instrument of economic growth that affects not only a few
but the entire nation. It is an important factor in encouraging investment and
promoting business. The engines of progress may come to a screeching halt if the
delivery of electric power is impaired. Billions of pesos would be lost as a result of
power outages or unreliable electric power services. The State thru the ERC should
be able to exercise its police power with great flexibility, when the need arises.
This was reiterated in National Association of Electricity Consumers for Reforms v.
Energy Regulatory Commission63 where the Court held that the ERC, as regulator,
should have sufficient power to respond in real time to changes wrought by
multifarious factors affecting public utilities.
From the foregoing disquisitions, we therefore hold that there is no undue delegation
of legislative power to the ERC.
Petitioners failed to pursue in their Memorandum the contention in the Complaint that
the imposition of the Universal Charge on all end-users is oppressive and
confiscatory, and amounts to taxation without representation. Hence, such contention
is deemed waived or abandoned per Resolution64 of August 3, 2004.65 Moreover, the
determination of whether or not a tax is excessive, oppressive or confiscatory is an
issue which essentially involves questions of fact, and thus, this Court is precluded
from reviewing the same.66
As a penultimate statement, it may be well to recall what this Court said of EPIRA:
One of the landmark pieces of legislation enacted by Congress in recent years is the
EPIRA. It established a new policy, legal structure and regulatory framework for the
electric power industry. The new thrust is to tap private capital for the expansion and
improvement of the industry as the large government debt and the highly capital-
intensive character of the industry itself have long been acknowledged as the critical
constraints to the program. To attract private investment, largely foreign, the jaded
structure of the industry had to be addressed. While the generation and transmission
sectors were centralized and monopolistic, the distribution side was fragmented with
over 130 utilities, mostly small and uneconomic. The pervasive flaws have caused a
low utilization of existing generation capacity; extremely high and uncompetitive
power rates; poor quality of service to consumers; dismal to forgettable performance
of the government power sector; high system losses; and an inability to develop a
clear strategy for overcoming these shortcomings.
Thus, the EPIRA provides a framework for the restructuring of the industry, including
the privatization of the assets of the National Power Corporation (NPC), the transition
to a competitive structure, and the delineation of the roles of various government
agencies and the private entities. The law ordains the division of the industry into four
(4) distinct sectors, namely: generation, transmission, distribution and supply.
Corollarily, the NPC generating plants have to privatized and its transmission CERTIFICATION
business spun off and privatized thereafter.67
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in
Finally, every law has in its favor the presumption of constitutionality, and to justify its the above Decision had been reached in consultation before the case was assigned
nullification, there must be a clear and unequivocal breach of the Constitution and not to the writer of the opinion of the Court.
one that is doubtful, speculative, or argumentative.68Indubitably, petitioners failed to
overcome this presumption in favor of the EPIRA. We find no clear violation of the REYNATO S. PUNO
Constitution which would warrant a pronouncement that Sec. 34 of the EPIRA and Chief Justice
Rule 18 of its IRR are unconstitutional and void.

WHEREFORE, the instant case is hereby DISMISSED for lack of merit.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

ANGELINA SANDOVAL-
ANTONIO T. CARPIO
GUTIERREZ
Associate Justice
Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES ADOLFO S. AZCUNA

Associate Justice Associate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

CANCIO C. GARCIA PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

SECOND DIVISION
G.R. No. 146062 June 28, 2001
SANTIAGO ESLABAN, JR., in his capacity as Project Manager of the National
Irrigation Administration, petitioner,
vs.
CLARITA VDA. DE ONORIO, respondent.
MENDOZA, J.:
This is a petition for review of the decision1 of the Court of Appeals which affirmed the
decision of the Regional Trial Court, Branch 26, Surallah, South Cotabato, ordering
the National Irrigation Administration (NIA for brevity) to pay respondent the amount
of P107,517.60 as just compensation for the taking of the latter’s property.
The facts are as follows:
Respondent Clarita Vda. de Enorio is the owner of a lot in Barangay M. Roxas, Sto.
Niño, South Cotabato with an area of 39,512 square meters. The lot, known as Lot
1210-A-Pad-11-000586, is covered by TCT No. T-22121 of the Registry of Deeds,
South Cotabato. On October 6, 1981, Santiago Eslaban, Jr., Project Manager of the
NIA, approved the construction of the main irrigation canal of the NIA on the said lot,
affecting a 24,660 square meter portion thereof. Respondent’s husband agreed to the
construction of the NIA canal provided that they be paid by the government for the
area taken after the processing of documents by the Commission on Audit.
Sometime in 1983, a Right-of-Way agreement was executed between respondent
and the NIA (Exh. 1). The NIA then paid respondent the amount of P4,180.00 as
Right-of-Way damages. Respondent subsequently executed an Affidavit of Waiver of
Rights and Fees whereby she waived any compensation for damages to crops and
improvements which she suffered as a result of the construction of a right-of-way on
her property (Exh. 2). The same year, petitioner offered respondent the sum
of P35,000.00 by way of amicable settlement pursuant to Executive Order No. 1035,
§18, which provides in part that ―
Financial assistance may also be given to owners of lands acquired under
C.A. 141, as amended, for the area or portion subject to the reservation
under Section 12 thereof in such amounts as may be determined by the
implementing agency/instrumentality concerned in consultation with the
Commission on Audit and the assessor’s office concerned.
Respondent demanded payment for the taking of her property, but petitioner refused
to pay. Accordingly, respondent filed on December 10, 1990 a complaint against
petitioner before the Regional Trial Court, praying that petitioner be ordered to pay
the sum of P111,299.55 as compensation for the portion of her property used in the
construction of the canal constructed by the NIA, litigation expenses, and the costs.
Petitioner, through the Office of the Solicitor-General, filed an Answer, in which he
admitted that NIA constructed an irrigation canal over the property of the plaintiff and
that NIA paid a certain landowner whose property had been taken for irrigation
purposes, but petitioner interposed the defense that: (1) the government had not
consented to be sued; (2) the total area used by the NIA for its irrigation canal was
only 2.27 hectares, not 24,600 square meters; and (3) respondent was not entitled to
compensation for the taking of her property considering that she secured title over the
property by virtue of a homestead patent under C.A. No. 141.
At the pre-trial conference, the following facts were stipulated upon: (1) that the area
taken was 24,660 square meters; (2) that it was a portion of the land covered by TCT
No. T-22121 in the name of respondent and her late husband (Exh. A); and (3) that
this area had been taken by the NIA for the construction of an irrigation canal. 2
On October 18, 1993, the trial court rendered a decision, the dispositive portion of
which reads:
In view of the foregoing, decision is hereby rendered in favor of plaintiff and
against the defendant ordering the defendant, National Irrigation
Administration, to pay to plaintiff the sum of One Hundred Seven Thousand
Five Hundred Seventeen Pesos and Sixty Centavos (P107,517.60) as just
compensation for the questioned area of 24,660 square meters of land
owned by plaintiff and taken by said defendant NIA which used it for its main
canal plus costs.3
On November 15, 1993, petitioner appealed to the Court of Appeals which, on
October 31, 2000, affirmed the decision of the Regional Trial Court. Hence this
petition.
The issues in this case are:
1. WHETHER OR NOT THE PETITION IS DISMISSIBLE FOR FAILURE TO
COMPLY WITH THE PROVISIONS OF SECTION 5, RULE 7 OF THE
REVISED RULES OF CIVIL PROCEDURE.
 2. WHETHER OR NOT LAND GRANTED BY VIRTUE OF A HOMESTEAD
PATENT AND SUBSEQUENTLY REGISTERED UNDER PRESIDENTIAL
DECREE 1529 CEASES TO BE PART OF THE PUBLIC DOMAIN.
3. WHETHER OR NOT THE VALUE OF JUST COMPENSATION SHALL
BE DETERMINED FROM THE TIME OF THE TAKING OR FROM THE
TIME OF THE FINALITY OF THE DECISION.
4. WHETHER THE AFFIDAVIT OF WAIVER OF RIGHTS AND FEES
EXECUTED BY RESPONDENT EXEMPTS PETITIONER FROM MAKING
PAYMENT TO THE FORMER.
We shall deal with these issues in the order they are stated.
First. Rule 7, §5 of the 1997 Revised Rules on Civil Procedure provides ―
Certification against forum shopping. ― The plaintiff or principal party shall
certify under oath in the complaint or other initiatory pleading asserting a
claim for relief, or in a sworn certification annexed thereto and
simultaneously filed therewith: (a) that he has not theretofore commenced
any action or filed any claim involving the same issues in any court, tribunal
or quasi-judicial agency and, to the best of his knowledge, no such other
action or claim is pending therein; (b) if there is such other pending action or
claim, a complete statement of the present status thereof; and (c) if he
should thereafter learn that the same or similar action or claim has been filed
or is pending, he shall report the fact within five (5) days therefrom to the
court wherein his aforesaid complaint or initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall not be curable by
mere amendment of the complaint or other initiatory pleading but shall be
cause for the dismissal of the case without prejudice, unless otherwise
provided, upon motion and after hearing . . . .
By reason of Rule 45, §4 of the 1997 Revised Rules on Civil Procedure, in relation to
Rule 42, §2 thereof, the requirement of a certificate of non-forum shopping applies to
the filing of petitions for review on certiorari of the decisions of the Court of Appeals,
such as the one filed by petitioner.
As provided in Rule 45, §5, "The failure of the petitioner to comply with any of the
foregoing requirements regarding . . . the contents of the document which should
accompany the petition shall be sufficient ground for the dismissal thereof."
The requirement in Rule 7, §5 that the certification should be executed by the plaintiff
or the principal means that counsel cannot sign the certificate against forum-
shopping. The reason for this is that the plaintiff or principal knows better than anyone
else whether a petition has previously been filed involving the same case or
substantially the same issues. Hence, a certification signed by counsel alone is
defective and constitutes a valid cause for dismissal of the petition. 4
In this case, the petition for review was filed by Santiago Eslaban, Jr., in his capacity
as Project Manager of the NIA. However, the verification and certification against
forum-shopping were signed by Cesar E. Gonzales, the administrator of the agency.
The real party-in-interest is the NIA, which is a body corporate. Without being duly
authorized by resolution of the board of the corporation, neither Santiago Eslaban, Jr.
nor Cesar E. Gonzales could sign the certificate against forum-shopping
accompanying the petition for review. Hence, on this ground alone, the petition should
be dismissed.
Second. Coming to the merits of the case, the land under litigation, as already stated,
is covered by a transfer certificate of title registered in the Registry Office of
Koronadal, South Cotabato on May 13, 1976. This land was originally covered by
Original Certificate of Title No. (P-25592) P-9800 which was issued pursuant to a
homestead patent granted on February 18, 1960. We have held:
Whenever public lands are alienated, granted or conveyed to applicants
thereof, and the deed grant or instrument of conveyance [sales patent]
registered with the Register of Deeds and the corresponding certificate and
owner’s duplicate of title issued, such lands are deemed registered lands
under the Torrens System and the certificate of title thus issued is as
conclusive and indefeasible as any other certificate of title issued to private
lands in ordinary or cadastral registration proceedings. 5
The Solicitor-General contends, however, that an encumbrance is imposed on the
land in question in view of §39 of the Land Registration Act (now P.D. No. 1529, §44)
which provides:
Every person receiving a certificate of title in pursuance of a decree of
registration, and every subsequent purchaser of registered land who takes a
certificate of title for value in good faith shall hold the same free from all
encumbrances except those noted on said certificate, and any of the
following encumbrances which may be subsisting, namely:
....
Third. Any public highway, way, private way established by law, or any
government irrigation canal or lateral thereof, where the certificate of title
does not state that the boundaries of such highway, way, irrigation canal or
lateral thereof, have been determined.
As this provision says, however, the only servitude which a private property owner is
required to recognize in favor of the government is the easement of a "public
highway, way, private way established by law, or any government canal or lateral
thereof where the certificate of title does not state that the boundaries thereof have
been pre-determined." This implies that the same should have been pre-existing at
the time of the registration of the land in order that the registered owner may be
compelled to respect it. Conversely, where the easement is not pre-existingand is
sought to be imposed only after the land has been registered under the Land
Registration Act, proper expropriation proceedings should be had, and just
compensation paid to the registered owner thereof.6
In this case, the irrigation canal constructed by the NIA on the contested property was
built only on October 6, 1981, several years after the property had been registered on
May 13, 1976. Accordingly, prior expropriation proceedings should have been filed
and just compensation paid to the owner thereof before it could be taken for public
use.
Indeed, the rule is that where private property is needed for conversion to some
public use, the first thing obviously that the government should do is to offer to buy
it.7 If the owner is willing to sell and the parties can agree on the price and the other
conditions of the sale, a voluntary transaction can then be concluded and the transfer
effected without the necessity of a judicial action. Otherwise, the government will use
its power of eminent domain, subject to the payment of just compensation, to acquire
private property in order to devote it to public use.
Third. With respect to the compensation which the owner of the condemned property
is entitled to receive, it is likewise settled that it is the market value which should be
paid or "that sum of money which a person, desirous but not compelled to buy, and
an owner, willing but not compelled to sell, would agree on as a price to be given and
received therefor."8 Further, just compensation means not only the correct amount to
be paid to the owner of the land but also the payment of the land within a reasonable
time from its taking. Without prompt payment, compensation cannot be considered
"just" for then the property owner is made to suffer the consequence of being
immediately deprived of his land while being made to wait for a decade or more
before actually receiving the amount necessary to cope with his loss. 9 Nevertheless,
as noted in Ansaldo v. Tantuico, Jr.,10 there are instances where the expropriating
agency takes over the property prior to the expropriation suit, in which case just
compensation shall be determined as of the time of taking, not as of the time of filing
of the action of eminent domain.
Before its amendment in 1997, Rule 67, §4 provided:
Order of condemnation. When such a motion is overruled or when any party
fails to defend as required by this rule, the court may enter an order of
condemnation declaring that the plaintiff has a lawful right to take the
property sought to be condemned, for the public use or purpose described in
the complaint upon the payment of just compensation to be determined as of
the date of the filing of the complaint. . . .
It is now provided that ―
SEC. 4. Order of expropriation. ― If the objections to and the defense
against the right of the plaintiff to expropriate the property are overruled, or
when no party appears to defend as required by this Rule, the court may
issue an order of expropriation declaring that the plaintiff has a lawful right to
take the property sought to be expropriated, for the public use or purpose
described in the complaint, upon the payment of just compensation to be
determined as of the date of the taking of the property or the filing of the
complaint, whichever came first.
A final order sustaining the right to expropriate the property may be
appealed by any party aggrieved thereby. Such appeal, however, shall not
prevent the court from determining the just compensation to be paid.
After the rendition of such an order, the plaintiff shall not be permitted to
dismiss or discontinue the proceeding except on such terms as the court
deems just and equitable. (Emphasis added)
Thus, the value of the property must be determined either as of the date of the taking
of the property or the filing of the complaint, "whichever came first." Even before the
new rule, however, it was already held in Commissioner of Public Highways v.
Burgos11 that the price of the land at the time of taking, not its value after the passage
of time, represents the true value to be paid as just compensation. It was, therefore,
error for the Court of Appeals to rule that the just compensation to be paid to
respondent should be determined as of the filing of the complaint in 1990, and not the
time of its taking by the NIA in 1981, because petitioner was allegedly remiss in its
obligation to pay respondent, and it was respondent who filed the complaint. In the
case of Burgos,12 it was also the property owner who brought the action for
compensation against the government after 25 years since the taking of his property
for the construction of a road.
Indeed, the value of the land may be affected by many factors. It may be enhanced
on account of its taking for public use, just as it may depreciate. As observed
in Republic v. Lara:13
[W]here property is taken ahead of the filing of the condemnation
proceedings, the value thereof may be enhanced by the public purpose for
which it is taken; the entry by the plaintiff upon the property may have
depreciated its value thereby; or there may have been a natural increase in
the value of the property from the time it is taken to the time the complaint is
filed, due to general economic conditions. The owner of private property
should be compensated only for what he actually loses; it is not intended
that his compensation shall extend beyond his loss or injury. And what he
loses is only the actual value of his property at the time it is taken. This is the
only way that compensation to be paid can be truly just, i.e., "just" not only to
the individual whose property is taken, "but to the public, which is to pay for
it" . . . .
In this case, the proper valuation for the property in question is P16,047.61 per
hectare, the price level for 1982, based on the appraisal report submitted by the
commission (composed of the provincial treasurer, assessor, and auditor of South
Cotabato) constituted by the trial court to make an assessment of the expropriated
land and fix the price thereof on a per hectare basis.14
Fourth. Petitioner finally contends that it is exempt from paying any amount to
respondent because the latter executed an Affidavit of Waiver of Rights and Fees of
any compensation due in favor of the Municipal Treasurer of Barangay Sto. Niño,
South Cotabato. However, as the Court of Appeals correctly held:

[I]f NIA intended to bind the appellee to said affidavit, it would not even have
bothered to give her any amount for damages caused on the
improvements/crops within the appellee’s property. This, apparently was not
the case, as can be gleaned from the disbursement voucher in the amount
of P4,180.00 (page 10 of the Folder of Exhibits in Civil Case 396) issued on
September 17, 1983 in favor of the appellee, and the letter from the Office of
the Solicitor General recommending the giving of "financial assistance in the
amount of P35,000.00" to the appellee.

Thus, We are inclined to give more credence to the appellee’s explanation

that the waiver of rights and fees "pertains only to improvements and crops
and not to the value of the land utilized by NIA for its main canal." 15

WHEREFORE, premises considered, the assailed decision of the Court of Appeals is

hereby AFFIRMED with MODIFICATION to the extent that the just compensation for
the contested property be paid to respondent in the amount of P16,047.61 per
hectare, with interest at the legal rate of six percent (6%) per annum from the time of
taking until full payment is made. Costs against petitioner.1âwphi1.nêt

SO ORDERED.

Bellosillo, Quisumbing, Buena, De Leon, Jr., JJ., concur.

 Republic of the Philippines
SUPREME COURT
Baguio City
EN BANC
G.R. No. 132922 April 21, 1998
TELECOMMUNICATIONS AND BROADCAST ATTORNEYS OF THE
PHILIPPINES, INC. and GMA NETWORK, INC., petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.
MENDOZA, J.:
In Osmeña v. COMELEC, G.R. No. 132231, decided March 31, 1998,1 we upheld the
validity of § 11(b) of R.A. No. 6646 which prohibits the sale or donation of print space
or air time for political ads, except to the Commission on Elections under §90, of B.P.
No. 881, the Omnibus Election Code, with respect to print media, and §92, with
respect to broadcast media. In the present case, we consider the validity of §92 of
B.P. Blg. No. 881 against claims that the requirement that radio and television time be
given free takes property without due process of law; that it violates the eminent
domain clause of the Constitution which provides for the payment of just
compensation; that it denies broadcast media the equal protection of the laws; and
that, in any event, it violates the terms of the franchise of petitioner GMA Network,
Inc.
Petitioner Telecommunications and Broadcast Attorneys of the Philippines, Inc. is an
organization of lawyers of radio and television broadcasting companies. They are
suing as citizens, taxpayers, and registered voters. The other petitioner, GMA
Network, Inc., operates radio and television broadcasting stations throughout the
Philippines under a franchise granted by Congress.
Petitioners challenge the validity of §92 on the ground (1) that it takes property
without due process of law and without just compensation; (2) that it denies radio and
television broadcast companies the equal protection of the laws; and (3) that it is in
excess of the power given to the COMELEC to supervise or regulate the operation of
media of communication or information during the period of election.
The Question of Standing
At the threshold of this suit is the question of standing of petitioner
Telecommunications and Broadcast Attorneys of the Philippines, Inc. (TELEBAP). As
already noted, its members assert an interest as lawyers of radio and television
broadcasting companies and as citizens, taxpayers, and registered voters.
In those cases2 in which citizens were authorized to sue, this Court upheld their
standing in view of the "transcendental importance" of the constitutional question
raised which justified the granting of relief. In contrast, in the case at bar, as will
presently be shown, petitioner's substantive claim is without merit. To the extent,
therefore, that a party's standing is determined by the substantive merit of his case or
preliminary estimate thereof, petitioner TELEBAP must be held to be without
standing. Indeed, a citizen will be allowed to raise a constitutional question only when
he can show that he has personally suffered some actual or threatened injury as a
result of the allegedly illegal conduct of the government; the injury fairly is fairly
traceable to the challenged action; and the injury is likely to be redressed by a
favorable action.3 Members of petitioner have not shown that they have suffered harm
as a result of the operation of §92 of B.P. Blg. 881.
Nor do members of petitioner TELEBAP have an interest as registered voters since
this case does not concern their right of suffrage. Their interest in §92 of B.P. Blg. 881
should be precisely in upholding its validity.
Much less do they have an interest as taxpayers since this case does not involve the
exercise by Congress of its taxing or spending power. 4 A party suing as a taxpayer
must specifically show that he has a sufficient interest in preventing the illegal
expenditure of money raised by taxation and that he will sustain a direct injury as a
result of the enforcement of the questioned statute.
Nor indeed as a corporate entity does TELEBAP have standing to assert the rights of
radio and television broadcasting companies. Standing jus tertii will be recognized
only if it can be shown that the party suing has some substantial relation to the third
party, or that the third party cannot assert his constitutional right, or that the eight of
the third party will be diluted unless the party in court is allowed to espouse the third
party's constitutional claim. None of these circumstances is here present. The mere
fact that TELEBAP is composed of lawyers in the broadcast industry does not entitle
them to bring this suit in their name as representatives of the affected companies.
Nevertheless, we have decided to take this case since the other petitioner, GMA
Network, Inc., appears to have the requisite standing to bring this constitutional
challenge. Petitioner operates radio and television broadcast stations in the
Philippines affected by the enforcement of §92 of B.P. Blg. 881 requiring radio and
television broadcast companies to provide free air time to the COMELEC for the use
of candidates for campaign and other political purposes.
Petitioner claims that it suffered losses running to several million pesos in providing
COMELEC Time in connection with the 1992 presidential election and the 1995
senatorial election and that it stands to suffer even more should it be required to do
so again this year. Petitioner's allegation that it will suffer losses again because it is
required to provide free air time is sufficient to give it standing to question the validity
of §92.5
Airing of COMELEC Time, a
Reasonable Condition for
Grant of Petitioner's
Franchise
As pointed out in our decision in Osmeña v. COMELEC, §11(b) of R.A. No. 6646 and
§90 and §92 of the B.P. Blg. 881 are part and parcel of a regulatory scheme designed
to equalize the opportunity of candidates in an election in regard to the use of mass
media for political campaigns. These statutory provisions state in relevant parts:
R.A. No. 6646
Sec. 11. Prohibited Forms of Election Propaganda. — In addition to the
forms of election propaganda prohibited under Section 85 of Batas
Pambansa Blg. 881, it shall be unlawful:
xxx xxx xxx
(b) for any newspapers, radio broadcasting or television station, or other
mass media, or any person making use of the mass media to sell or to give
free of charge print space or air time for campaign or other political purposes
except to the Commission as provided under Section 90 and 92 of Batas
Pambansa Blg. 881. Any mass media columnist, commentator, announcer
or personality who is a candidate for any elective public office shall take a
leave of absence from his work as such during the campaign period.
B.P. Blg. 881, (Omnibus Election Code)
Sec. 90. Comelec space. — The Commission shall procure space in at least
one newspaper of general circulation in every province or city; Provided,
however, That in the absence of said newspaper, publication shall be done
in any other magazine or periodical in said province or city, which shall be
known as "Comelec Space" wherein candidates can announce their
candidacy. Said space shall be allocated, free of charge, equally and
impartially by the Commission among all candidates within the area in which
the newspaper is circulated. (Sec. 45, 1978 EC).
Sec. 92. Comelec time. — The commission shall procure radio and
television time to be known as "Comelec Time" which shall be allocated
equally and impartially among the candidates within the area of coverage of
all radio and television stations. For this purpose, the franchise of all radio
broadcasting and television stations are hereby amended so as to provide
radio or television time, free of charge, during the period of the campaign.
(Sec. 46, 1978 EC)
Thus, the law prohibits mass media from selling or donating print space and air time
to the candidates and requires the COMELEC instead to procure print space and air
time for allocation to the candidates. It will be noted that while §90 of B.P. Blg. 881
requires the COMELEC to procure print space which, as we have held, should be
paid for, §92 states that air time shall be procured by the COMELEC free of charge.
Petitioners contend that §92 of BP Blg. 881 violates the due process clause 6 and the
eminent domain provision7 of the Constitution by taking air time from radio and
television broadcasting stations without payment of just compensation. Petitioners
claim that the primary source of revenue of the radio and television stations is the
sale of air time to advertisers and that to require these stations to provide free air time
is to authorize a taking which is not "a de minimis temporary limitation or restraint
upon the use of private property." According to petitioners, in 1992, the GMA
Network, Inc. lost P22,498,560.00 in providing free air time of one (1) hour every
morning from Mondays to Fridays and one (1) hour on Tuesdays and Thursday from
7:00 to 8:00 p.m. (prime time) and, in this year's elections, it stands to lose
P58,980,850.00 in view of COMELEC'S requirement that radio and television stations
provide at least 30 minutes of prime time daily for the COMELEC Time. 8
Petitioners' argument is without merit, All broadcasting, whether by radio or by
television stations, is licensed by the government. Airwave frequencies have to be
allocated as there are more individuals who want to broadcast than there are
frequencies to assign.9 A franchise is thus a privilege subject, among other things, to
amended by Congress in accordance with the constitutional provision that "any such
franchise or right granted . . . shall be subject to amendment, alteration or repeal by
the Congress when the common good so requires."10
The idea that broadcast stations may be required to provide COMELEC Time free of
charge is not new. It goes back to the Election Code of 1971 (R.A. No. 6388), which
provided:
Sec. 49. Regulation of election propaganda through mass media. — (a) The
franchise of all radio broadcasting and television stations are hereby
amended so as to require each such station to furnish free of charge, upon
request of the Commission [on Elections], during the period of sixty days
before the election not more than fifteen minutes of prime time once a week
which shall be known as "Comelec Time" and which shall be used
exclusively by the Commission to disseminate vital election information. Said
"Comelec Time" shall be considered as part of the public service time said
stations are required to furnish the Government for the dissemination of
public information and education under their respective franchises or
permits.
The provision was carried over with slight modification by the 1978 Election Code
(P.D. No. 1296), which provided:
Sec. 46. COMELEC Time. — The Commission [on Elections] shall procure
radio and television time to be known as "COMELEC Time" which shall be
allocated equally and impartially among the candidates within the area of
coverage of said radio and television stations. For this purpose, the
 franchises of all radio broadcasting and television stations are hereby
amended so as to require such stations to furnish the Commission radio or
television time, free of charge, during the period of the campaign, at least
once but not oftener than every other day.
Substantially the same provision is now embodied in §92 of B.P. Blg. 881.
Indeed, provisions for COMELEC Tima have been made by amendment of the
franchises of radio and television broadcast stations and, until the present case was
brought, such provisions had not been thought of as taking property without just
compensation. Art. XII, §11 of the Constitution authorizes the amendment of
franchises for "the common good." What better measure can be conceived for the
common good than one for free air time for the benefit not only of candidates but
even more of the public, particularly the voters, so that they will be fully informed of
the issues in an election? "[I]t is the right of the viewers and listeners, not the right of
the broadcasters, which is paramount."11
Nor indeed can there be any constitutional objection to the requirement that
broadcast stations give free air time. Even in the United States, there are responsible
scholars who believe that government controls on broadcast media can
constitutionally be instituted to ensure diversity of views and attention to public affairs
to further the system of free expression. For this purpose, broadcast stations may be
required to give free air time to candidates in an election. 12 Thus, Professor Cass R.
Sunstein of the University of Chicago Law School, in urging reforms in regulations
affecting the broadcast industry, writes:
Elections. We could do a lot to improve coverage of electoral campaigns.
Most important, government should ensure free media time for candidates.
Almost all European nations make such provisions; the United States does
not. Perhaps government should pay for such time on its own. Perhaps
broadcasters should have to offer it as a condition for receiving a
license. Perhaps a commitment to provide free time would count in favor of
the grant of a license in the first instance. Steps of this sort would
simultaneously promote attention to public affairs and greater diversity of
view. They would also help overcome the distorting effects of "soundbites"
and the corrosive financial pressures faced by candidates in seeking time on
the media. 13
In truth, radio and television broadcasting companies, which are given franchises, do
not own the airwaves and frequencies through which they transmit broadcast signals
and images. They are merely given the temporary privilege of using them. Since a
franchise is a mere privilege, the exercise of the privilege may reasonably be
burdened with the performance by the grantee of some form of public service. Thus,
in De Villata v. Stanley,14 a regulation requiring interisland vessels licensed to engage
in the interisland trade to carry mail and, for this purpose, to give advance notice to
postal authorities of date and hour of sailings of vessels and of changes of sailing
hours to enable them to tender mail for transportation at the last practicable hour prior
to the vessel's departure, was held to be a reasonable condition for the state grant of
license. Although the question of compensation for the carriage of mail was not in
issue, the Court strongly implied that such service could be without compensation, as
in fact under Spanish sovereignty the mail was carried free. 15
In Philippine Long Distance Telephone Company v. NTC,16 the Court ordered the
PLDT to allow the interconnection of its domestic telephone system with the
international gateway facility of Eastern Telecom. The Court cited (1) the provisions of
the legislative franchise allowing such interconnection; (2) the absence of any
physical, technical, or economic basis for restricting the linking up of two separate
telephone systems; and (3) the possibility of increase in the volume of international
traffic and more efficient service, at more moderate cost, as a result of
interconnection.
Similarly, in the earlier case of PLDT v. NTC,17 it was held:
Such regulation of the use and ownership of telecommunications systems is
in the exercise of the plenary police power of the State for the promotion of
the general welfare. The 1987 Constitution recognizes the existence of that
power when it provides:
Sec. 6. The use of property bears a social function, and all
economic agents shall contribute to the common good.
Individuals and private groups, including corporations,
cooperatives, and similar collective organizations, shall
have the right to own, establish, and operate economic
enterprises, subject to the duty of the State to promote
distributive justice and to intervene when the common
good so demands (Article XII).
The interconnection which has been required of PLDT is a form of
"intervention" with property rights dictated by "the objective of government to
promote the rapid expansion of telecommunications services in all areas of
the Philippines, . . . to maximize the use of telecommunications facilities
available, . . . in recognition of the vital role of communications in nation
building . . . and to ensure that all users of the public telecommunications
service have access to all other users of the service wherever they may be
within the Philippines at an acceptable standard of service and at reasonable
cost" (DOTC Circular No. 90-248). Undoubtedly, the encompassing objective
is the common good. The NTC, as the regulatory agency of the State,
merely exercised its delegated authority to regulate the use of
telecommunications networks when it decreed interconnection.
In the granting of the privilege to operate broadcast stations and thereafter
supervising radio and television stations, the state spends considerable public funds
in licensing and supervising such stations. 18 It would be strange if it cannot even
require the licensees to render public service by giving free air time.
Considerable effort is made in the dissent of Mr. Justice Panganiban to show that the
production of television programs involves large expenditure and requires the use of
equipment for which huge investments have to be made. The dissent cites the claim
of GMA Network that the grant of free air time to the COMELEC for the duration of the
1998 campaign period would cost the company P52,380,000, representing revenue it
would otherwise earn if the air time were sold to advertisers, and the amount of
P6,600,850, representing the cost of producing a program for the COMELEC Time, or
the total amount of P58,980,850.
The claim that petitioner would be losing P52,380,000 in unrealized revenue from
advertising is based on the assumption that air time is "finished product" which, it is
said, become the property of the company, like oil produced from refining or similar
natural resources after undergoing a process for their production. But air time is not
owned by broadcast companies. As held in Red Lion Broadcasting
Co. v. F.C.C.,19 which upheld the right of a party personally attacked to reply,
"licenses to broadcast do not confer ownership of designated frequencies, but only
the temporary privilege of using them." Consequently, "a license permits
broadcasting, but the license has no constitutional right to be the one who holds the
license or to monopolize a radio frequency to the exclusion of his fellow citizens.
There is nothing in the First Amendment which prevents the Government from
requiring a licensee to share his frequency with others and to conduct himself as a
proxy or fiduciary with obligations to present those views and voices which are
representative of his community and which would otherwise, by necessity, be barred
from the airwaves." 20 As radio and television broadcast stations do not own the
airwaves, no private property is taken by the requirement that they provide air time to
the COMELEC.
Justice Panganiban's dissent quotes from Tolentino on the Civil Code which says that
"the air lanes themselves 'are not property because they cannot be appropriated for
the benefit of any individual.'" (p. 5) That means neither the State nor the stations own
the air lanes. Yet the dissent also says that "The franchise holders can recover their
huge investments only by selling air time to advertisers." (p. 13) If air lanes cannot be
appropriated, how can they be used to produce air time which the franchise holders
can sell to recover their investment? There is a contradiction here.
As to the additional amount of P6,600,850, it is claimed that this is the cost of
producing a program and it is for such items as "sets and props," "video tapes,"
"miscellaneous (other rental, supplies, transportation, etc.)," and "technical facilities
(technical crew such as director and cameraman as well as 'on air plugs')." There is
no basis for this claim. Expenses for these items will be for the account of the
candidates. COMELEC Resolution No. 2983, §6(d) specifically provides in this
connection:
(d) Additional services such as tape-recording or video-taping of programs,
the preparation of visual aids, terms and condition thereof, and consideration
to be paid therefor may be arranged by the candidates with the
radio/television station concerned. However, no radio/television station shall
make any discrimination among candidates relative to charges, terms,
practices or facilities for in connection with the services rendered.
It is unfortunate that in the effort to show that there is taking of private property worth
millions of pesos, the unsubstantiated charge is made that by its decision the Court
permits the "grand larceny of precious time," and allows itself to become "the people's
unwitting oppressor." The charge is really unfortunate. In Jackson
v. Rosenbaun,21 Justice Holmes was so incensed by the resistance of property
owners to the erection of party walls that he was led to say in his original draft, "a
statute, which embodies the community's understanding of the reciprocal rights and
duties of neighboring landowners, does not need to invoke the penalty larceny of the
police power in its justification." Holmes's brethren corrected his taste, and Holmes
had to amend the passage so that in the end it spoke only of invoking "the police
power."22 Justice Holmes spoke of the "petty larceny" of the police power. Now we
are being told of the "grand larceny [by means of the police power] of precious air
time."
Giving Free Air Time a Duty
Assumed by Petitioner
Petitioners claim that §92 is an invalid amendment of R.A. No. 7252 which granted
GMA Network, Inc. a franchise for the operation of radio and television broadcasting
stations. They argue that although §5 of R.A. No. 7252 gives the government the
power to temporarily use and operate the stations of petitioner GMA Network or to
authorize such use and operation, the exercise of this right must be compensated.
The cited provision of. R.A. No. 7252 states:
Sec. 5. Right of Government. — A special right is hereby reserved to the
President of the Philippines, in times of rebellion, public peril, calamity,
emergency, disaster or disturbance of peace and order, to temporarily take
over and operate the stations of the grantee, to temporarily suspend the
operation of any station in the interest of public safety, security and public
welfare, or to authorize the temporary use and operation thereof by any
agency of the Government, upon due compensation to the grantee, for the
use of said stations during the period when they shall be so operated.
The basic flaw in petitioner's argument is that it assumes that the provision for
COMELEC Time constitutes the use and operation of the stations of the GMA
Network, Inc., This is not so. Under §92 of B.P. Blg. 881, the COMELEC does not
take over the operation of radio and television stations but only the allocation of air
time to the candidates for the purpose of ensuring, among other things, equal
opportunity, time, and the right to reply as mandated by the Constitution.23
Indeed, it is wrong to claim an amendment of petitioner's franchise for the reason that
B.P. Blg. 881, which is said to have amended R.A. No. 7252, actually antedated
it.24 The provision of §92 of B.P. Blg. 881 must be deemed instead to be incorporated
in R.A. No. 7252. And, indeed, §4 of the latter statute does.
For the fact is that the duty imposed on the GMA Network, Inc. by its franchise to
render "adequate public service time" implements §92 of B.P. Blg. 881. Undoubtedly,
its purpose is to enable the government to communicate with the people on matters of
public interest. Thus, R.A. No. 7252 provides:
 Sec. 4. Responsibility to the Public. — The grantee shall provide adequate
public service time to enable the Government, through the said broadcasting
stations, to reach the population on important public issues; provide at all
times sound and balanced programming; promote public participation such
as in community programming; assist in the functions of public information
and education; conform to the ethics of honest enterprise; and not use its
station for the broadcasting of obscene and indecent language, speech, act
or scene, or for the dissemination of deliberately false information or willful
misrepresentation, or to the detriment of the public interest, or to incite,
encourage, or assist in subversive or treasonable acts. (Emphasis added).
It is noteworthy that §40 of R.A. No. 6388, from which §92 of B.P. Blg. 881 was taken,
expressly provided that the COMELEC Time should "be considered as part of the
public service time said stations are required to furnish the Government for the
dissemination of public information and education under their respective franchises or
permits." There is no reason to suppose that §92 of B.P. Blg. 881 considers the
COMELEC Time therein provided to be otherwise than as a public service which
petitioner is required to render under §4 of its charter (R.A. No. 7252). In sum, B.P.
Blg. 881, §92 is not an invalid amendment of petitioner's franchise but the
enforcement of a duty voluntarily assumed by petitioner in accepting a public grant of
privilege.
Thus far, we have confined the discussion to the provision of §92 of B.P. Blg. 881 for
free air time without taking into account COMELEC Resolution No. 2983-A, §2 of
which states:
Sec. 2. Grant of "Comelec Time." — Every radio broadcasting and television
station operating under franchise shall grant the Commission, upon payment
of just compensation, at least thirty (30) minutes of prime time daily, to be
known as "Comelec Time", effective February 10, 1998 for candidates for
President, Vice-President and Senators, and effective March 27, 1998, for
candidates for local elective offices, until May 9, 1998. (Emphasis added).
This is because the amendment providing for the payment of "just compensation" is
invalid, being in contravention of §92 of B.P. Blg. 881 that radio and television time
given during the period of the campaign shall be "free of charge." Indeed, Resolution
No. 2983 originally provided that the time allocated shall be "free of charge," just as
§92 requires such time to be given "free of charge." The amendment appears to be a
reaction to petitioner's claim in this case that the original provision was
unconstitutional because it allegedly authorized the taking of property without just
compensation.
The Solicitor General, relying on the amendment, claims that there should be no more
dispute because the payment of compensation is now provided for. It is basic,
however, that an administrative agency cannot, in the exercise of lawmaking, amend
a statute of Congress. Since §2 of Resolution No. 2983-A is invalid, it cannot be
invoked by the parties.
Law Allows Flextime for Programming
by Stations, Not Confiscation of
Air Time by COMELEC
It is claimed that there is no standard in the law to guide the COMELEC in procuring
free air time and that "theoretically the COMELEC can demand all of the air time of
such stations."25 Petitioners do not claim that COMELEC Resolution No. 2983-A
arbitrarily sequesters radio and television time. What they claim is that because of the
breadth of the statutory language, the provision in question is susceptible of
"unbridled, arbitrary and oppressive exercise." 26
The contention has no basis. For one, the COMELEC is required to procure free air
time for candidates "within the area of coverage" of a particular radio or television
broadcaster so that it cannot, for example, procure such time for candidates outside
that area. At what time of the day and how much time the COMELEC may procure
will have to be determined by it in relation to the overall objective of informing the
public about the candidates, their qualifications and their programs of government. As
stated in Osmeña v. COMELEC, the COMELEC Time provided for in §92, as well as
the COMELEC Space provided for in §90, is in lieu of paid ads which candidates are
prohibited to have under §11(b) of R.A. No. 6646. Accordingly, this objective must be
kept in mind in determining the details of the COMELEC Time as well as those of the
COMELEC Space.
There would indeed be objection to the grant of power to the COMELEC if §92 were
so detailed as to leave no room for accommodation of the demands of radio and
television programming. For were that the case, there could be an intrusion into the
editorial prerogatives of radio and television stations.
Differential Treatment of
Broadcast Media Justified
Petitioners complain that B.P. Blg. 881, §92 singles out radio and television stations
to provide free air time. They contend that newspapers and magazines are not
similarly required as, in fact, in Philippine Press Institute v.COMELEC,27 we upheld
their right to the payment of just compensation for the print space they may provide
under §90.
The argument will not bear analysis. It rests on the fallacy that broadcast media are
entitled to the same treatment under the free speech guarantee of the Constitution as
the print media. There are important differences in the characteristics of the two
media, however, which justify their differential treatment for free speech purposes.
Because of the physical limitations of the broadcast spectrum, the government must,
of necessity, allocate broadcast frequencies to those wishing to use them. There is no
similar justification for government allocation and regulation of the print media. 28
In the allocation of limited resources, relevant conditions may validly be imposed on
the grantees or licensees. The reason for this is that, as already noted, the
government spends public funds for the allocation and regulation of the broadcast
industry, which it does not do in the case of the print media. To require the radio and
television broadcast industry to provide free air time for the COMELEC Time is a fair
exchange for what the industry gets.
From another point of view, this Court has also held that because of the unique and
pervasive influence of the broadcast media, "[n]ecessarily . . . the freedom of
television and radio broadcasting is somewhat lesser in scope than the freedom
accorded to newspaper and print media." 29
The broadcast media have also established a uniquely pervasive presence in the
lives of all Filipinos. Newspapers and current books are found only in metropolitan
areas and in the poblaciones of municipalities accessible to fast and regular
transportation. Even here, there are low income masses who find the cost of books,
newspapers, and magazines beyond their humble means. Basic needs like food and
shelter perforce enjoy high priorities.
On the other hand, the transistor radio is found everywhere. The television
set is also becoming universal. Their message may be simultaneously
received by a national or regional audience of listeners including the
indifferent or unwilling who happen to be within reach of a blaring radio or
television set. The materials broadcast over the airwaves reach every
person of every age, persons of varying susceptibilities to persuasion,
persons of different I.Q.s and mental capabilities, persons whose reactions
to inflammatory or offensive speech would he difficult to monitor or predict.
The impact of the vibrant speech is forceful and immediate. Unlike readers
of the printed work, the radio audience has lesser opportunity to cogitate,
analyze, and reject the utterance. 30
Petitioners' assertion therefore that §92 of B.P. Blg. 881 denies them the equal
protection of the law has no basis. In addition, their plea that §92 (free air time) and
§11(b) of R.A. No. 6646 (ban on paid political ads) should be invalidated would pave
the way for a return to the old regime where moneyed candidates could monopolize
media advertising to the disadvantage of candidates with less resources. That is what
Congress tried to reform in 1987 with the enactment of R.A. No. 6646. We are not
free to set aside the judgment of Congress, especially in light of the recent failure of
interested parties to have the law repealed or at least modified.
Requirement of COMELEC Time, a
Reasonable Exercise of the
State's Power to Regulate
Use of Franchises
Finally, it is argued that the power to supervise or regulate given to the COMELEC
under Art. IX-C, §4 of the Constitution does not include the power to prohibit. In the
first place, what the COMELEC is authorized to supervise or regulate by Art. IX-C, §4
of the Constitution,31 among other things, is the use by media of information of their
franchises or permits, while what Congress (not the COMELEC) prohibits is the sale
or donation of print space or air time for political ads. In other words, the object of
supervision or regulation is different from the object of the prohibition. It is another
fallacy for petitioners to contend that the power to regulate does not include the power
to prohibit. This may have force if the object of the power were the same.
In the second place, the prohibition in §11(b) of R.A. No. 6646 is only half of the
regulatory provision in the statute. The other half is the mandate to the COMELEC to
procure print space and air time for allocation to candidates. As we said in Osmeña
v. COMELEC:
The term political "ad ban" when used to describe §11(b) of R.A. No. 6646,
is misleading, for even as §11(b) prohibits the sale or donation of print space
and air time to political candidates, it mandates the COMELEC to procure
and itself allocate to the candidates space and time in the media. There is no
suppression of political ads but only a regulation of the time and manner of
advertising.
xxx xxx xxx
. . . What is involved here is simply regulation of this nature. Instead of
leaving candidates to advertise freely in the mass media, the law provides
for allocation, by the COMELEC of print space and air time to give all
candidates equal time and space for the purpose of ensuring "free, orderly,
honest, peaceful, and credible elections."
With the prohibition on media advertising by candidates themselves, the COMELEC
Time and COMELEC Space are about the only means through which candidates can
advertise their qualifications and programs of government. More than merely
depriving their qualifications and programs of government. More than merely
depriving candidates of time for their ads, the failure of broadcast stations to provide
air time unless paid by the government would clearly deprive the people of their right
to know. Art III, §7 of the Constitution provides that "the right of the people to
information on matters of public concern shall be recognized," while Art. XII, §6 states
that "the use of property bears a social function [and] the right to own, establish, and
operate economic enterprises [is] subject to the duty of the State to promote
distributive justice and to intervene when the common good so demands."
To affirm the validity of §92 of B.P. Blg. 881 is to hold public broadcasters to their
obligation to see to it that the variety and vigor of public debate on issues in an
election is maintained. For while broadcast media are not mere common carriers but
entities with free speech rights, they are also public trustees charged with the duty of
ensuring that the people have access to the diversity of views on political issues. This
right of the people is paramount to the autonomy of broadcast media. To affirm the
validity of §92, therefore, is likewise to uphold the people's right to information on
matters of public concern. The use of property bears a social function and is subject
to the state's duty to intervene for the common good. Broadcast media can find their
just and highest reward in the fact that whatever altruistic service they may render in
connection with the holding of elections is for that common good.
For the foregoing reasons, the petition is dismissed.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Bellosillo, Melo, Puno, Kapunan, Martinez and
Quisumbing, JJ., concur.
Separate Opinions
VITUG, J., separate opinion;
I assent in most part to the well-considered opinion written by Mr. Justice Vicente V.
Mendoza in his ponencia, particularly, in holding that petitioner TELEBAP lacks locus
standi in filing the instant petition and in declaring that Section 92 of Batas Pambansa
Blg. 881 is a legitimate exercise of police power of the State.
The grant of franchise to broadcast media is a privilege burdened with
responsibilities. While it is, primordially, a business enterprise, it nevertheless, also
addresses in many ways certain imperatives of public service. In Stone
vs.Mississippi (101, U.S. 814, cited in Cruz, Constitutional Law, 1995 ed., p. 40.), a
case involving a franchise to sell lotteries which petitioner claims to be a contract
which may not be impaired, the United States Supreme Court opined:
. . . (T)he Legislature cannot bargain away the police power of a State.
Irrevocable grants of property and franchises may be made if they do not
impair the supreme authority to make laws for the right government of the
State; but no Legislature can curtail the power of its successors to make
such laws as they may deem proper in matters of police. . .
In this case, the assailed law, in my view, has not failed in meeting the standards set
forth for its lawful exercise, i.e., (a) that its utilization is demanded by the interests of
the public, and (b) that the means employed are reasonably necessary, and not
unduly oppressive, for the accomplishment of the purposes and objectives of the law.
I cannot consider COMELEC Resolution No. 2983-A, particularly Section 2 thereof,
as being in contravention of B.P. No. 881. There is nothing in the law that prohibits
the COMELEC from itself procuring airtime, perhaps longer than that which can
reasonably be allocated, if it believes that in so opting, it does so for the public good.
I vote to DISMISS the petition.
ROMERO, J., dissenting;
Section 92 of BP 881 constitutes taking of private property without just compensation.
The power of eminent domain is a power inherent in sovereignty and requires no
constitutional provision to give it force. It is the rightful authority which exists in every
sovereignty, to control and regulate those rights of a public nature which pertain to its
citizens in common, and to appropriate and control individual property for the public
benefit as the public safety, necessity, convenience or welfare demand.1 The right to
appropriate private property to public use, however, lies dormant in the state until
legislative action is had, pointing out the occasions, the modes, the conditions and
agencies for its appropriation.2
Section 92 of BP 881 states
Sec. 92. — Comelec Time — The Comelec shall procure radio and
television time to be known as "Comelec Time" which shall be allocated
equally and impartially among the candidates within the area of coverage of
all radio and television stations. For this purpose, the franchise of all radio
and television stations are hereby attended so as to provide radio and
television time free of charge during the period of election campaign.
Pursuant to Section 92 of BP 881, respondent COMELEC on March 3, 1998 passed
Resolution 2983-A, the pertinent provision of which reads as follows:
Sec. 2. Grant of "Comelec Time." — Every radio broadcasting and television
station operating under franchise shall grant the Commission, upon payment
of just compensation, at least thirty (30) minutes of prime time daily, to be
known as "Comelec Time," effective February 10, 1998 for candidates for
President, Vice-President and Senators, and effective March 27, 1998, for
candidates for local elective offices, until May 9, 1998.
Section 92 of BP 881, insofar as it requires radio and television stations to provide
Comelec with radio and television time free of charge is a flagrant violation of the
constitutional mandate that private property shall not be taken for public use without
just compensation. While it is inherent in the State, the sovereign right to appropriate
property has never been understood to include taking property for public purposes
without the duty and responsibility of ordering compensation to the individual whose
property has been sacrificed for the good of the community. Hence, Section 9 Article
III of the 1987 Constitution which reads "No private property shall be taken for public
use without just compensation," gives us two limitations on the power of eminent
domain: (1) the purpose of taking must be for public use and (2) just compensation
must be given to the owner of the private property.
There is, of course, no question that the taking of the property in the case at bar is for
public use, i.e. to ensure that air time is allocated equally among the candidates,
however, there is no justification for the taking without payment of just compensation.
While Resolution No. 2983-A has provided that just compensation shall be paid for
the 30 minutes of prime time granted by the television stations to respondent
Comelec, we note that the resolution was passed pursuant to Section 92 of BP 881
which mandates that radio and television time be provided to respondent
Comelec free of charge. Since the legislative intent is the controlling element in
determining the administrative powers, rights, privileges and immunities
granted,3 respondent Comelec may, at any time, despite the resolution passed,
compel television and radio stations to provide it with airtime free of charge.
Apparently, Sec. 92 of BP 881 justices such taking under the guise of police power
regulation which cannot be validly done. Police power must be distinguished from the
power of eminent domain. In the exercise of police power, there is a restriction of
property interest to promote public welfare or interest which involves no compensable
taking. When the power of eminent domain, however, is exercised, property interest is
appropriated and applied to some public purpose, necessitating compensation
therefor. Traditional distinctions between police power and the power of eminent
domain precluded application of both powers at the same time in the same
subject.4 Hence, in the case of City of Baguio v. NAWASA,5 the Court held that a law
requiring the transfer of all municipal waterworks systems to NAWASA in exchange
for its assets of equivalent value involved the exercise of eminent domain because
the property involved was wholesome and intended for public use. Property
condemned under the exercise of police power, on the other hand, is noxious or
intended for noxious purpose and, consequently, is not compensable. Police power
proceeds from the principle that every holder of property, however absolute and
unqualified may be his title, holds it under the implied liability that his use of it shall
not be injurious to the equal enjoyment of others having an equal right to the
enjoyment of their property, nor injurious to the rights of the community. Rights of
property, like all other social and conventional rights, are subject to reasonable
limitations in their enjoyment as shall prevent them from being injurious, and to such
reasonable restraits and regulations established by law as the legislature, under the
governing and controlling power vested in them by the constitution, may think
necessary and expedient.6
In the case of Small Landowners of the Philippines Inc. v. Secretary of Agrarian
Reform, we found occasion to note that recent trends show a mingling of the police
power and the power of eminent domain, with the latter being used as an implement
of the former like the power of taxation. Citing the cases of Berman
v. Parker7 and Penn Central Transportation Co. v. New York City8 where owners of
the Grand Central Terminal who were not allowed to construct a multi-story building
to preserve a historic landmark were allowed certain compensatory rights to mitigate
the loss caused by the regulation, this Court is Small Landowners of the
Philippines, Inc. case held that measures prescribing retention limits for landowners
under the Agrarian Reform Law involved the exercise of police power for the
regulation of private property in accordance with the constitution. And, where to carry
out the regulation, it became necessary to deprive owners of whatever lands they
may own in excess of the maximum area allowed, the Court held that there was
definitely a taking under the power of eminent domain for which payment of just
compensation was imperative.
The petition before us is no different from the above-cited case. Insofar as See 92 of
BP 881 read in conjunction with Sec 11(b) of RA 6646 restricts the sale or donation of
airtime by radio and television stations during the campaign period to respondent
Comelec, there is an exercise of police power for the regulation of property in
accordance with the Constitution. To the extent however that Sec 92 of BP 881
mandates that airtime be provided free of charge to respondent Comelec to be
allocated equally among all candidates, the regulation exceeds the limits of police
power and should be recognized as a taking. In the case of Pennsylvania Coal
v. Mahon,9 Justice Holmes laid down the limits of police power in this wise," The
general rule is that while property may be regulated to a certain extent, if the
regulation goes too far, it will be recognized as a taking."
While the power of eminent domain often results in the appropriation of title to or
possession of property, it need not always be the case. It is a settled rule that neither
acquisition of title nor total destruction of value is essential to taking and it is usually in
cases where title remains with the private owner that inquiry should be made to
determine whether the impairment of a property is merely regulated or amounts to a
compensable taking. A regulation which deprives any person of the profitable use of
his property constitutes a taking and entitles him to compensation unless the invasion
of rights is so slight as to permit the regulation to be justified under the police power.
Similarly, a police regulation which unreasonably restricts the right to use business
property for business purposes, amounts to taking of private property and the owner
may recover therefor.10 It is also settled jurisprudence that acquisition of right of way
easement falls within the purview of eminent domain.11
While there is no taking or appropriation of title to, and possession of the expropriated
property in the case at bar, there is compensable taking inasmuch as them is a loss
of the earnings for the airtime which the petitioner-intervenors are compelled to
donate. It is a loss which, to paraphrase Philippine Press Institute v. Comelec,12 could
hardly be considered "de minimis" if we are to take into account the monetary value of
the compulsory donation measured by the current advertising rates of the radio and
television stations.
In the case of Philippine Press Institute v. Comelec,13 we had occasion to state that
newspapers and other print media are not compelled to donate free space to
respondent Comelec inasmuch as this would be in violation of the constitutional
provision that no private property shall be taken for public use without just
compensation. We find no cogent reason why radio and television stations should be
treated considering that their operating expenses as compared to those of the
newspaper and other print media publishers involve considerably greater amount of
financial resources.
The fact that one needs a franchise from government to establish a radio and
television station while no license is needed to start a newspaper should not be made
a basis for treating broadcast media any differently from the print media in compelling
the former to "donate" airtime to respondent Comelec. While no franchises and rights
are granted except under the condition that it shall be subject to amendment,
alteration, or repeal by the Congress when the common good so requires,14 this
provides no license for government to disregard the cardinal rule that corporations
with franchises are as much entitled to due process and equal protection of laws
guaranteed under the Constitution.
ACCORDINGLY, I vote to declare Section 92 of BP 881 insofar as it mandates that
radio and television time be provided to respondent Comelec free of charge
UNCONSTITUTIONAL.
PANGANIBAN, J., dissenting;
At issue in this case is the constitutionality of Section 92 of the Omnibus Election
Code1 which compels all broadcast stations in the country "to provide radio and
television time, free of charge, during the period of the [election] campaigns," which
the Commission on Elections shall allocate "equally and impartially among the
candidates . . ." Petitioners contend, and I agree, that this legal provision is
unconstitutional because it confiscates private property without due process of law
and without payment of just compensation, and denies broadcast media equal
protection of the law.
In Philippine Press Institute, Inc. (PPI) vs. Commission on Elections,2 this Court ruled
that print media companies cannot be required to donate advertising space, free of
charge, to the Comelec for equal allocation among candidates, on the ground that
such compulsory seizure of print space is equivalent to a proscribed taking of private
property for public use without payment of just compensation.3
The Court's majority in the present case, speaking through the distinguished Mr.
Justice Vicente V. Mendoza, holds, however, that the foregoing PPI doctrine applies
only to print media, not to broadcast (radio and TV) networks, arguing that "radio and
television broadcasting companies, which are given franchises, do not own the
airwaves and frequencies through which they transmit broadcast signals and images.
They are merely given the temporary privilege of using them. Since a franchise is a
mere privilege, the exercise of the privilege may reasonably be burdened with the
performance by the grantee of some form of public service." In other words, the
majority theorizes that the forced donation of air time to the Comelec is a means by
which the State gets compensation for the grant of the franchise and/or the use of the
air lanes.
With all due respect, I disagree. The majority is relying on a theoretical distinction that
does not make any real difference. Theory must yield to reality. I respectfully submit
the following arguments to support my dissent:
1. The State does not own the airwaves and broadcast frequencies. It merely
allocates, supervises and regulates their proper use. Thus, other than collecting
supervision or regulatory fees which it already does, it cannot exact any onerous and
unreasonable post facto burdens from the franchise holders, without due process and
just compensation. Moreover, the invocation of the "common good" does not excuse
the unbridled and clearly excessive taking of a franchisee's property.
2. Assuming arguendo that the State owns the air lanes, the broadcasting companies
already pay rental fees to the government for their use. Hence, the seizure of air time
cannot be justified by the theory of compensation.
3. Airwaves and frequencies alone, without the radio and television owner's
humongous investments amounting to billions of pesos, cannot be utilized for
broadcasting purposes. Hence, a forced donation of broadcast time is in actual fact a
taking of such investments without due process and without payment of just
compensation.
Let me explain further each of these arguments.
I. The State Does Not Own Air Lanes:
It Merely Regulates Their Proper Use;
"Common Good" Does Not Excuse Unbridled Taking.
Significantly, the majority does not claim that the State owns the air lanes. It merely
contends that "broadcasting, whether by radio or by television stations, is licensed by
the government. Airwave frequencies have to be allocated as there are more
individuals who want to broadcast than there are frequencies to assign. A franchise is
thus a privilege subject among other thing . . . to amendment, alteration or repeal by
the Congress when the common good so requires."4 True enough, a "franchise
started out as a 'royal privilege or [a] branch of the King's prerogative, subsisting in
the hands of a subject.'"5
Indeed, while the Constitution expressly provides that "[a]ll lands of the public domain,
waters, mineral, coal, petroleum, and other mineral oils, all forces, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other
natural resources are owned by the State," it is silent as to the ownership of the
airwaves and frequencies. It is then reasonable to say that no one owns them. Like
the air we breathe and the sunshine that sustains life, the air lanes themselves "are
not property because they cannot be appropriated for the benefit of any
individual,"6 but are to be used to the best advantage of all.
Because, as mentioned earlier, there are more prospective users than frequencies,
the State — in the exercise of its police power — allocates, supervises and regulates
their use, so as to derive maximum benefit for the general public. The franchise
granted by the legislature to broadcasting companies is essentially for the purpose of
putting order in the use of the airwaves by assigning to such companies their
respective frequencies. The purpose is not to grant them the privilege of using public
property. For, as earlier stated, airwaves are not owned by the government.
Accordingly, the National Telecommunications Commission (NTC) was tasked by law
to institutionalize this regulation of the air lanes. To cover the administrative cost of
supervision and regulation, the NTC levies charges, which have been revised
upwards in NTC Memorandum Circular No. 14-8-94 dated August 26, 1994. In
accordance with this Circular, Petitioner GMA Network, Inc., for the year 1996, paid
the NTC P2,880,591 of which P2,501,776.30 was NTC "supervision and regulation
fee," as borne out by its Audited Consolidated Financial Statements for said year, on
file with the Securities and Exchange Commission. In short, for its work of allocation,
supervision and regulation, the government is adequately compensated by the
broadcast media through the payment of fees unilaterally set by the former.
Franchisee's Property Cannot
Be Taken Without Just Compensation
In stamping unbridled donations with its imprimatur, the majority overlooks the twofold
nature and purpose of a franchise: other than serving the public benefit which is
subject to government regulation, it must also be to the franchise holder's advantage.
Once granted, a franchise (not the air lanes) together with concomitant private rights,
becomes property of the grantee.7 It is regarded by law precisely as other property
and, as any other property, it is safeguarded by the Constitution from arbitrary
revocation or impairment.8 The rights under a franchise can be neither taken nor
curtailed for public use or purpose, even by the government as the grantor, without
payment of just compensation9 as guaranteed under our fundamental law.10 The fact
that the franchise relates to public use or purpose does not entitle the state to
abrogate or impair its use without just compensation. 11
The majority further claims that, constitutionally,12 franchises are always subject to
alteration by Congress, "when the common good so requires." The question then
boils down to this: Does Section 92 of the Omnibus Election Code constitute a
franchise modification for the "common good," or an "unlawful taking of private
property"? To answer this question, I go back to Philippine Press Institute,
Inc. vs. Commission on Elections, where a unanimous Supreme Court held:13
To compel print media companies to donate "Comelec space" of the
dimensions specified in Section 2 of Resolution No. 2772 (not less than one-
half page), amounts to "taking" of private personal property for public use or
purposes. Section 2 failed to specify the intended frequency of such
compulsory "donation:" only onceduring the period from 6 March 1995 (or 21
March 1995) until 12 May 1995? or everyday or once a week? or as often as
Comelec may direct during the same period? The extent of the taking or
deprivation is not insubstantial; this is not a case of a de minimis temporary
limitation or restraint upon the use of private property. The monetary value of
the compulsory "donation," measured by the advertising rates ordinarily
charged by newspaper publishers whether in cities or in non-urban areas,
may be very substantial indeed. (Emphasis in original)
"Common Good" Does Not Justify Unbridled
Taking of Franchisee's Broadcast Time
Like the questioned resolution in PPI, Section 92 contains no limit as to the amount
and recurrence of the "donation" of air time that Comelec can demand from radio and
TV stations. There are no guidelines or standards provided as to the choice of
stations, time and frequency of airing, and programs to be aired. Theoretically,
Comelec can compel the use of all the air time of a station. The fact that Comelec has
not exercised its granted power arbitrarily is immaterial because the law, as worded,
admits of unbridled exercise.
A statute is considered void for overbreadth when "it offends the
constitutional principle 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." (Zwickler v. Koota, 19 L ed 2d 444 [1967]). In a series
of decisions this Court has held that, even though the governmental purpose
be legitimate and substantial, that purpose cannot be pursued by means that
broadly stifle fundamental personal liberties when the end can be more
narrowly achieved. The breadth of legislative abridgment must be viewed in
the light of less drastic means for achieving the same basic purpose. 14
In a 1968 opinion, the American Supreme Court made clear that the
absence of such reasonable and definite standards in a legislation of its
character is fatal. Where, as in the case of the above paragraphs, the
majority of the Court could discern "an overbreadth that makes possible
oppressive or capricious application" of the statutory provisions, the line
dividing the valid from the constitutionally infirm has been crossed. Such
provisions offend the constitutional principle that "a governmental purpose to
control or prevent activities constitutionally subject to state regulation may
not be achieved by means which sweep unnecessarily broadly and thereby
invade the area of protected freedoms."
It is undeniable, therefore, that even though the governmental purpose be
legitimate and substantial, they cannot be pursued by means that broadly
stifle fundamental personal liberties when the end can be more narrowly
achieved. For precision of regulation is the touchstone in an area so closely
related to our most precious freedoms. 15
As a rule, a statute may be said to be vague and invalid if "it leaves law enforces (in
the case, the Comelec) unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the government muscle."16
Moreover, the extent of the actual taking of air time is enormous, exorbitant and
unreasonable. In their Memorandum,17 petitioners allege (and this has not been
rebutted at all) that during the 1992 election period, GMA Network has been
compelled to donate P22,498.560 worth of advertising revenues; and for the current
election period, GMA stands to lose a staggering P58,980,850. Now, clearly and most
obviously, these amounts are not inconsequential or de minimis. They constitute
arbitrary taking on a grand scale!
American jurisprudence is replete with citations showing that "[l]egislative regulation
of public utilities must not have the effect of depriving an owner of his property without
due process of law, nor of confiscating or appropriating private property without due
process of law, nor of confiscating or appropriating private property without just
compensation, nor of limiting or prescribing irrevocably vested rights or privileges
lawfully acquired under a charter or franchise." The power to regulate is subject to
these constitutional limits.18 Consequently, "rights under a franchise cannot be taken
or damaged for a public use without the making of just compensation therefor." 19 To
do so is clearly beyond the power of the legislature to regulate.
II. Assuming That the State Owns Air Lanes,
Broadcast Companies Already Pay Rental Therefor.
Let me grant for the moment and for the sake of argument that the State owns the air
lanes and that, by its grant of a franchise, it should thus receive compensation for the
use of said frequencies. I say, however, that by remitting unreasonably high "annual
fees and charges," which as earlier stated amounts to millions of pesos yearly,
television stations are in effect paying rental fees for the use (not just the regulation)
of said frequencies. Except for the annual inspection conducted by the NTC, no other
significant service is performed by the government in exchange for the enormous fees
charged the stations. Evidently, the sums collected by the NTC exceed the cost of
services performed by it, and are therefore more properly understood as rental fees
for the use of the frequencies granted them.20
Since the use of the air frequencies is already paid for annually by the broadcast
entities, there is no basis for the government, through the Comelec, to compel
unbridled donation of the air time of said companies without due process and without
payment of just compensation.
In fact, even in the case of state-owned resources referred to earlier — like oil,
minerals and coal — once the license to exploit and develop them is granted to a
private corporation, the government can no longer arbitrarilyconfiscate or appropriate
them gratis under the guise of serving the common good. Crude oil, for instance,
once explored, drilled, and refined is thereafter considered the property of the
authorized explorer (or refiner) which can sell it to the public and even to the
government itself. The State simply cannot demand free gasoline for the operation of
public facilities even if they benefit the people in general. It still has to pay
compensation therefor.
III. Airwaves Useless Without Huge
Investment of Broadcast Companies
Setting up and operating a credible broadcasting network requires billions of pesos in
investments. It is precisely the broadcast licensee's use of a state-granted franchise
or privilege which occasions its acquisition of private property in the form of broadcast
facilities and its production of air time. These properties are distinct from its
franchise. 21The 1996 Audited Consolidated Balance Sheet of Petitioner GMA, on file
with the SEC, shows that its "property and equipment," which it uses in its broadcast
function, amount to over one billion pesos or, to be exact, P1,245,741,487. 22 This
does not include the cost of producing the programs to be broadcast, talent fees and
other aspects of broadcasting. In their Memorandum,23 petitioners explain that the
total cost for GMA to stay on the air (for television) at present is approximately
P136,100 per hour, which includes electricity, depreciation, repairs and maintenance,
technical facilities, salaries, and so on. The point is: The franchise holders can
recover their huge investments only by selling air time to advertisers. This is their
"product," their valuable property which Section 92 forcibly takes from them in
massive amounts without payment of just compensation.
It is too simplistic to say that because the Constitution allows Congress to alter
franchises, ergo, an unbridled taking of private property may be allowed. If such
appropriation were only, to use the words of PPI vs. Comelec, de minimis or
insignificant — say, one hour once or twice a month — perhaps, it can be justified by
the promotion of the "common good." But a taking in the gargantuan amount of over
P58 million from Petitioner GMA for the 1998 election season alone is an actual
seizure of its private investment, and not at all a reasonable "compensation" or
"alteration" for the "common good." Certainly, this partakes of CONFISCATION of
private property.
What makes the taking of air time even more odious is its ex post facto nature. When
the broadcast companies acquired their franchises and set up their expensive
facilities, they were not informed of the immensity of the donations they are now
compelled to give.
Note should be made, too, of the fact that what Section 92 takes away is air time. Air
time is the "finished product" after a station uses its own broadcast facilities. The
frequency is lust the specific "route" or "channel" by which this medium reaches the
TV sets of the general public. Technically, therefore, the wholesale alteration by
Section 92 of all broadcast franchise would appear unrelated to the compelled
donations. While the express modification is in the franchise, what Section 92 really
does is that it takes away the end product of the facilities which were set up through
the use of the entrepreneurs' investments and the broadcasters' work.
EPILOGUE
By way of epilogue, I must point out that even Respondent Comelec expressly
recognizes the need for just compensation. Thus, Section 2 of its Resolution No.
2983-A states that "[e]very radio broadcasting and television station operating under
franchise shall grant the Commission, upon payment of just compensation, at least
thirty (30) minutes of prime time daily to be known as 'Comelec Time' . . ." And yet,
even with such a judicious legal position taken by the very agency tasked by the
Constitution to administer elections, the majority still insists on an arbitrary seizure of
precious property produced and owned by private enterprise.
That Petitioner GMA is a viable, even profitable, enterprise24 is no argument for
seizing its profits. The State cannot rob the rich to feed the poor in the guise of
promoting the "common good." Truly, the end never justifies the means.
It cannot be denied that the amount and the extent of the air time demanded from
GMA is huge and exorbitant, amounting, I repeat, to over P58 million for the 1998
election season alone. If the air time required from "every radio and television station"
in the country in the magnitude stated in the aforesaid Comelec Resolution 2983-A is
added up and costed, the total would indeed be staggering — in several hundred
million pesos.
Smacking of undisguised discrimination is the fact that in PPI vs. Comelec, this Court
has required payment of print media ads but, in this case, compels broadcast stations
to donate their end product on a massive scale. The simplistic distinction given — that
radio and TV stations are mere grantees of government franchises while newspaper
companies are not — does not justify the grand larceny of precious air time. This is a
violation not only of private property, but also of the constitutional right to equal
protection itself. The proffered distinction between print and broadcast media is too
insignificant and too flimsy to be a valid justification for the discrimination. The print
and broadcast media are equal in the sense that both derive their revenues principally
from paid ads. They should thus be treated equally by the law in respect of such ads.
To sum up, the Bill of Rights of our Constitution expressly guarantees the following
rights:
1. No person, whether rich or poor, shall be deprived of property without due
process.25
2. Such property shall not be taken by the government, even for the use of the
general public, without first paying just compensation to the owner. 26
3. No one, regardless of social or financial status, shall be denied equal protection of
the law.27
The majority, however, peremptorily brushes aside all these sacred guarantees and
prefers to rely on the nebulous legal theory that broadcast stations are mere
recipients of state-granted franchises which can be altered or withdrawn anytime or
otherwise burdened with post facto elephantine yokes. By this short-circuited
rationalization, the majority blithely ignores the private entrepreneurs' billion-peso
investments and the broadcast professionals' grit and toil in transforming these
invisible franchises into merchandisable property; and conveniently forgets the grim
reality that the taking of honestly earned media assets is unbridled, exorbitant and
arbitrary. Worse, the government,28 against which these constitutional rights to
property were in the first place written, prudently agrees to respect them and to pay
adequate compensation for their taking. But ironically, the majority rejects the
exemplary observance by the government of the people's rights and insists on the
confiscation of their private property.
I have always believed that the Supreme Court is the ever vigilant guardian of the
constitutional rights of the citizens and their ultimate protector against the tyrannies of
their own government. I am afraid that by this unfortunate Decision, the majority, in
this instance, has instead converted this honorable and majestic Court into the
people's unwitting oppressor.
WHEREFORE, I vote to GRANT the petition and to declare Section 92 of the
Omnibus Election Code UNCONSTITUTIONAL and VOID.
Purisima, J., dissents.
Separate Opinions
VITUG, J., separate opinion;
I assent in most part to the well-considered opinion written by Mr. Justice Vicente V.
Mendoza in his ponencia, particularly, in holding that petitioner TELEBAP lacks locus
standi in filing the instant petition and in declaring that Section 92 of Batas Pambansa
Blg. 881 is a legitimate exercise of police power of the State.
The grant of franchise to broadcast media is a privilege burdened with
responsibilities. While it is, primordially, a business enterprise, it nevertheless, also
addresses in many ways certain imperatives of public service. In Stone
vs.Mississippi (101, U.S. 814, cited in Cruz, Constitutional Law, 1995 ed., p. 40.), a
case involving a franchise to sell lotteries which petitioner claims to be a contract
which may not be impaired, the United States Supreme Court opined:
. . . (T)he Legislature cannot bargain away the police power of a State.
Irrevocable grants of property and franchises may be made if they do not
impair the supreme authority to make laws for the right government of the
State; but no Legislature can curtail the power of its successors to make
such laws as they may deem proper in matters of police. . .
In this case, the assailed law, in my view, has not failed in meeting the standards set
forth for its lawful exercise, i.e., (a) that its utilization is demanded by the interests of
the public, and (b) that the means employed are reasonably necessary, and not
unduly oppressive, for the accomplishment of the purposes and objectives of the law.
I cannot consider COMELEC Resolution No. 2983-A, particularly Section 2 thereof,
as being in contravention of B.P. No. 881. There is nothing in the law that prohibits
the COMELEC from itself procuring airtime, perhaps longer than that which can
reasonably be allocated, if it believes that in so opting, it does so for the public good.
I vote to DISMISS the petition.
ROMERO, J., dissenting;
Section 92 of BP 881 constitutes taking of private property without just compensation.
The power of eminent domain is a power inherent in sovereignty and requires no
constitutional provision to give it force. It is the rightful authority which exists in every
sovereignty, to control and regulate those rights of a public nature which pertain to its
citizens in common, and to appropriate and control individual property for the public
benefit as the public safety, necessity, convenience or welfare demand. 1 The right to
appropriate private property to public use, however, lies dormant in the state until
legislative action is had, pointing out the occasions, the modes, the conditions and
agencies for its appropriation.2
Section 92 of BP 881 states
Sec. 92. — Comelec Time — The Comelec shall procure radio and
television time to be known as "Comelec Time" which shall be allocated
equally and impartially among the candidates within the area of coverage of
all radio and television stations. For this purpose, the franchise of all radio
 and television stations are hereby attended so as to provide radio and
television time free of charge during the period of election campaign.
Pursuant to Section 92 of BP 881, respondent COMELEC on March 3, 1998 passed
Resolution 2983-A, the pertinent provision of which reads as follows:
Sec. 2. Grant of "Comelec Time." — Every radio broadcasting and television
station operating under franchise shall grant the Commission, upon payment
of just compensation, at least thirty (30) minutes of prime time daily, to be
known as "Comelec Time," effective February 10, 1998 for candidates for
President, Vice-President and Senators, and effective March 27, 1998, for
candidates for local elective offices, until May 9, 1998.
Section 92 of BP 881, insofar as it requires radio and television stations to provide
Comelec with radio and television time free of charge is a flagrant violation of the
constitutional mandate that private property shall not be taken for public use without
just compensation. While it is inherent in the State, the sovereign right to appropriate
property has never been understood to include taking property for public purposes
without the duty and responsibility of ordering compensation to the individual whose
property has been sacrificed for the good of the community. Hence, Section 9 Article
III of the 1987 Constitution which reads "No private property shall be taken for public
use without just compensation," gives us two limitations on the power of eminent
domain: (1) the purpose of taking must be for public use and (2) just compensation
must be given to the owner of the private property.
There is, of course, no question that the taking of the property in the case at bar is for
public use, i.e. to ensure that air time is allocated equally among the candidates,
however, there is no justification for the taking without payment of just compensation.
While Resolution No. 2983-A has provided that just compensation shall be paid for
the 30 minutes of prime time granted by the television stations to respondent
Comelec, we note that the resolution was passed pursuant to Section 92 of BP 881
which mandates that radio and television time be provided to respondent
Comelec free of charge. Since the legislative intent is the controlling element in
determining the administrative powers, rights, privileges and immunities
granted,3 respondent Comelec may, at any time, despite the resolution passed,
compel television and radio stations to provide it with airtime free of charge.
Apparently, Sec. 92 of BP 881 justices such taking under the guise of police power
regulation which cannot be validly done. Police power must be distinguished from the
power of eminent domain. In the exercise of police power, there is a restriction of
property interest to promote public welfare or interest which involves no compensable
taking. When the power of eminent domain, however, is exercised, property interest is
appropriated and applied to some public purpose, necessitating compensation
therefor. Traditional distinctions between police power and the power of eminent
domain precluded application of both powers at the same time in the same
subject.4 Hence, in the case of City of Baguio v. NAWASA,5 the Court held that a law
requiring the transfer of all municipal waterworks systems to NAWASA in exchange
for its assets of equivalent value involved the exercise of eminent domain because
the property involved was wholesome and intended for public use. Property
condemned under the exercise of police power, on the other hand, is noxious or
intended for noxious purpose and, consequently, is not compensable. Police power
proceeds from the principle that every holder of property, however absolute and
unqualified may be his title, holds it under the implied liability that his use of it shall
not be injurious to the equal enjoyment of others having an equal right to the
enjoyment of their property, nor injurious to the rights of the community. Rights of
property, like all other social and conventional rights, are subject to reasonable
limitations in their enjoyment as shall prevent them from being injurious, and to such
reasonable restraits and regulations established by law as the legislature, under the
governing and controlling power vested in them by the constitution, may think
necessary and expedient.6
In the case of Small Landowners of the Philippines Inc. v. Secretary of Agrarian
Reform, we found occasion to note that recent trends show a mingling of the police
power and the power of eminent domain, with the latter being used as an implement
of the former like the power of taxation. Citing the cases of Berman
v. Parker7 and Penn Central Transportation Co. v. New York City8 where owners of
the Grand Central Terminal who were not allowed to construct a multi-story building
to preserve a historic landmark were allowed certain compensatory rights to mitigate
the loss caused by the regulation, this Court is Small Landowners of the
Philippines, Inc. case held that measures prescribing retention limits for landowners
under the Agrarian Reform Law involved the exercise of police power for the
regulation of private property in accordance with the constitution. And, where to carry
out the regulation, it became necessary to deprive owners of whatever lands they
may own in excess of the maximum area allowed, the Court held that there was
definitely a taking under the power of eminent domain for which payment of just
compensation was imperative.
The petition before us is no different from the above-cited case. Insofar as See 92 of
BP 881 read in conjunction with Sec 11(b) of RA 6646 restricts the sale or donation of
airtime by radio and television stations during the campaign period to respondent
Comelec, there is an exercise of police power for the regulation of property in
accordance with the Constitution. To the extent however that Sec 92 of BP 881
mandates that airtime be provided free of charge to respondent Comelec to be
allocated equally among all candidates, the regulation exceeds the limits of police
power and should be recognized as a taking. In the case of Pennsylvania Coal
v. Mahon,9 Justice Holmes laid down the limits of police power in this wise," The
general rule is that while property may be regulated to a certain extent, if the
regulation goes too far, it will be recognized as a taking."
While the power of eminent domain often results in the appropriation of title to or
possession of property, it need not always be the case. It is a settled rule that neither
acquisition of title nor total destruction of value is essential to taking and it is usually in
cases where title remains with the private owner that inquiry should be made to
determine whether the impairment of a property is merely regulated or amounts to a
compensable taking. A regulation which deprives any person of the profitable use of
his property constitutes a taking and entitles him to compensation unless the invasion
of rights is so slight as to permit the regulation to be justified under the police power.
Similarly, a police regulation which unreasonably restricts the right to use business
property for business purposes, amounts to taking of private property and the owner
may recover therefor.10 It is also settled jurisprudence that acquisition of right of way
easement falls within the purview of eminent domain.11
While there is no taking or appropriation of title to, and possession of the expropriated
property in the case at bar, there is compensable taking inasmuch as them is a loss
of the earnings for the airtime which the petitioner-intervenors are compelled to
donate. It is a loss which, to paraphrase Philippine Press Institute v. Comelec,12 could
hardly be considered "de minimis" if we are to take into account the monetary value of
the compulsory donation measured by the current advertising rates of the radio and
television stations.
In the case of Philippine Press Institute v. Comelec,13 we had occasion to state that
newspapers and other print media are not compelled to donate free space to
respondent Comelec inasmuch as this would be in violation of the constitutional
provision that no private property shall be taken for public use without just
compensation. We find no cogent reason why radio and television stations should be
treated considering that their operating expenses as compared to those of the
newspaper and other print media publishers involve considerably greater amount of
financial resources.
The fact that one needs a franchise from government to establish a radio and
television station while no license is needed to start a newspaper should not be made
a basis for treating broadcast media any differently from the print media in compelling
the former to "donate" airtime to respondent Comelec. While no franchises and rights
are granted except under the condition that it shall be subject to amendment,
alteration, or repeal by the Congress when the common good so requires, 14 this
provides no license for government to disregard the cardinal rule that corporations
with franchises are as much entitled to due process and equal protection of laws
guaranteed under the Constitution.
ACCORDINGLY, I vote to declare Section 92 of BP 881 insofar as it mandates that
radio and television time be provided to respondent Comelec free of charge
UNCONSTITUTIONAL.
PANGANIBAN, J., dissenting;
At issue in this case is the constitutionality of Section 92 of the Omnibus Election
Code1 which compels all broadcast stations in the country "to provide radio and
television time, free of charge, during the period of the [election] campaigns," which
the Commission on Elections shall allocate "equally and impartially among the
candidates . . ." Petitioners contend, and I agree, that this legal provision is
unconstitutional because it confiscates private property without due process of law
and without payment of just compensation, and denies broadcast media equal
protection of the law.
In Philippine Press Institute, Inc. (PPI) vs. Commission on Elections,2 this Court ruled
that print media companies cannot be required to donate advertising space, free of
charge, to the Comelec for equal allocation among candidates, on the ground that
such compulsory seizure of print space is equivalent to a proscribed taking of private
property for public use without payment of just compensation.3
The Court's majority in the present case, speaking through the distinguished Mr.
Justice Vicente V. Mendoza, holds, however, that the foregoing PPI doctrine applies
only to print media, not to broadcast (radio and TV) networks, arguing that "radio and
television broadcasting companies, which are given franchises, do not own the
airwaves and frequencies through which they transmit broadcast signals and images.
They are merely given the temporary privilege of using them. Since a franchise is a
mere privilege, the exercise of the privilege may reasonably be burdened with the
performance by the grantee of some form of public service." In other words, the
majority theorizes that the forced donation of air time to the Comelec is a means by
which the State gets compensation for the grant of the franchise and/or the use of the
air lanes.
With all due respect, I disagree. The majority is relying on a theoretical distinction that
does not make any real difference. Theory must yield to reality. I respectfully submit
the following arguments to support my dissent:
1. The State does not own the airwaves and broadcast frequencies. It merely
allocates, supervises and regulates their proper use. Thus, other than collecting
supervision or regulatory fees which it already does, it cannot exact any onerous and
unreasonable post facto burdens from the franchise holders, without due process and
just compensation. Moreover, the invocation of the "common good" does not excuse
the unbridled and clearly excessive taking of a franchisee's property.
2. Assuming arguendo that the State owns the air lanes, the broadcasting companies
already pay rental fees to the government for their use. Hence, the seizure of air time
cannot be justified by the theory of compensation.
3. Airwaves and frequencies alone, without the radio and television owner's
humongous investments amounting to billions of pesos, cannot be utilized for
broadcasting purposes. Hence, a forced donation of broadcast time is in actual fact a
taking of such investments without due process and without payment of just
compensation.
Let me explain further each of these arguments.
I. The State Does Not Own Air Lanes:
It Merely Regulates Their Proper Use;
"Common Good" Does Not Excuse Unbridled Taking.
Significantly, the majority does not claim that the State owns the air lanes. It merely
contends that "broadcasting, whether by radio or by television stations, is licensed by
the government. Airwave frequencies have to be allocated as there are more
individuals who want to broadcast than there are frequencies to assign. A franchise is
thus a privilege subject among other thing . . . to amendment, alteration or repeal by
the Congress when the common good so requires."4 True enough, a "franchise
started out as a 'royal privilege or [a] branch of the King's prerogative, subsisting in
the hands of a subject.'"5
Indeed, while the Constitution expressly provides that "[a]ll lands of the public domain,
waters, mineral, coal, petroleum, and other mineral oils, all forces, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other
natural resources are owned by the State," it is silent as to the ownership of the
airwaves and frequencies. It is then reasonable to say that no one owns them. Like
the air we breathe and the sunshine that sustains life, the air lanes themselves "are
not property because they cannot be appropriated for the benefit of any
individual,"6 but are to be used to the best advantage of all.
Because, as mentioned earlier, there are more prospective users than frequencies,
the State — in the exercise of its police power — allocates, supervises and regulates
their use, so as to derive maximum benefit for the general public. The franchise
granted by the legislature to broadcasting companies is essentially for the purpose of
putting order in the use of the airwaves by assigning to such companies their
respective frequencies. The purpose is not to grant them the privilege of using public
property. For, as earlier stated, airwaves are not owned by the government.
Accordingly, the National Telecommunications Commission (NTC) was tasked by law
to institutionalize this regulation of the air lanes. To cover the administrative cost of
supervision and regulation, the NTC levies charges, which have been revised
upwards in NTC Memorandum Circular No. 14-8-94 dated August 26, 1994. In
accordance with this Circular, Petitioner GMA Network, Inc., for the year 1996, paid
the NTC P2,880,591 of which P2,501,776.30 was NTC "supervision and regulation
fee," as borne out by its Audited Consolidated Financial Statements for said year, on
file with the Securities and Exchange Commission. In short, for its work of allocation,
supervision and regulation, the government is adequately compensated by the
broadcast media through the payment of fees unilaterally set by the former.
Franchisee's Property Cannot
Be Taken Without Just Compensation
In stamping unbridled donations with its imprimatur, the majority overlooks the twofold
nature and purpose of a franchise: other than serving the public benefit which is
subject to government regulation, it must also be to the franchise holder's advantage.
Once granted, a franchise (not the air lanes) together with concomitant private rights,
becomes property of the grantee.7 It is regarded by law precisely as other property
and, as any other property, it is safeguarded by the Constitution from arbitrary
revocation or impairment.8 The rights under a franchise can be neither taken nor
curtailed for public use or purpose, even by the government as the grantor, without
payment of just compensation9 as guaranteed under our fundamental law.10 The fact
that the franchise relates to public use or purpose does not entitle the state to
abrogate or impair its use without just compensation. 11
The majority further claims that, constitutionally,12 franchises are always subject to
alteration by Congress, "when the common good so requires." The question then
boils down to this: Does Section 92 of the Omnibus Election Code constitute a
franchise modification for the "common good," or an "unlawful taking of private
property"? To answer this question, I go back to Philippine Press Institute,
Inc. vs. Commission on Elections, where a unanimous Supreme Court held:13
To compel print media companies to donate "Comelec space" of the
dimensions specified in Section 2 of Resolution No. 2772 (not less than one-
half page), amounts to "taking" of private personal property for public use or
purposes. Section 2 failed to specify the intended frequency of such
compulsory "donation:" only onceduring the period from 6 March 1995 (or 21
March 1995) until 12 May 1995? or everyday or once a week? or as often as
Comelec may direct during the same period? The extent of the taking or
deprivation is not insubstantial; this is not a case of a de minimis temporary
limitation or restraint upon the use of private property. The monetary value of
the compulsory "donation," measured by the advertising rates ordinarily
charged by newspaper publishers whether in cities or in non-urban areas,
may be very substantial indeed. (Emphasis in original)
"Common Good" Does Not Justify Unbridled
Taking of Franchisee's Broadcast Time
Like the questioned resolution in PPI, Section 92 contains no limit as to the amount
and recurrence of the "donation" of air time that Comelec can demand from radio and
TV stations. There are no guidelines or standards provided as to the choice of
stations, time and frequency of airing, and programs to be aired. Theoretically,
Comelec can compel the use of all the air time of a station. The fact that Comelec has
not exercised its granted power arbitrarily is immaterial because the law, as worded,
admits of unbridled exercise.
A statute is considered void for overbreadth when "it offends the
constitutional principle 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." (Zwickler v. Koota, 19 L ed 2d 444 [1967]). In a series
of decisions this Court has held that, even though the governmental purpose
be legitimate and substantial, that purpose cannot be pursued by means that
broadly stifle fundamental personal liberties when the end can be more
narrowly achieved. The breadth of legislative abridgment must be viewed in
the light of less drastic means for achieving the same basic purpose. 14
In a 1968 opinion, the American Supreme Court made clear that the
absence of such reasonable and definite standards in a legislation of its
character is fatal. Where, as in the case of the above paragraphs, the
majority of the Court could discern "an overbreadth that makes possible
oppressive or capricious application" of the statutory provisions, the line
dividing the valid from the constitutionally infirm has been crossed. Such
provisions offend the constitutional principle that "a governmental purpose to
control or prevent activities constitutionally subject to state regulation may
not be achieved by means which sweep unnecessarily broadly and thereby
invade the area of protected freedoms."
It is undeniable, therefore, that even though the governmental purpose be
legitimate and substantial, they cannot be pursued by means that broadly
stifle fundamental personal liberties when the end can be more narrowly
 achieved. For precision of regulation is the touchstone in an area so closely
related to our most precious freedoms. 15
As a rule, a statute may be said to be vague and invalid if "it leaves law enforces (in
the case, the Comelec) unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the government muscle." 16
Moreover, the extent of the actual taking of air time is enormous, exorbitant and
unreasonable. In their Memorandum,17 petitioners allege (and this has not been
rebutted at all) that during the 1992 election period, GMA Network has been
compelled to donate P22,498.560 worth of advertising revenues; and for the current
election period, GMA stands to lose a staggering P58,980,850. Now, clearly and most
obviously, these amounts are not inconsequential or de minimis. They constitute
arbitrary taking on a grand scale!
American jurisprudence is replete with citations showing that "[l]egislative regulation
of public utilities must not have the effect of depriving an owner of his property without
due process of law, nor of confiscating or appropriating private property without due
process of law, nor of confiscating or appropriating private property without just
compensation, nor of limiting or prescribing irrevocably vested rights or privileges
lawfully acquired under a charter or franchise." The power to regulate is subject to
these constitutional limits.18 Consequently, "rights under a franchise cannot be taken
or damaged for a public use without the making of just compensation therefor."19 To
do so is clearly beyond the power of the legislature to regulate.
II. Assuming That the State Owns Air Lanes,
Broadcast Companies Already Pay Rental Therefor.
Let me grant for the moment and for the sake of argument that the State owns the air
lanes and that, by its grant of a franchise, it should thus receive compensation for the
use of said frequencies. I say, however, that by remitting unreasonably high "annual
fees and charges," which as earlier stated amounts to millions of pesos yearly,
television stations are in effect paying rental fees for the use (not just the regulation)
of said frequencies. Except for the annual inspection conducted by the NTC, no other
significant service is performed by the government in exchange for the enormous fees
charged the stations. Evidently, the sums collected by the NTC exceed the cost of
services performed by it, and are therefore more properly understood as rental fees
for the use of the frequencies granted them.20
Since the use of the air frequencies is already paid for annually by the broadcast
entities, there is no basis for the government, through the Comelec, to compel
unbridled donation of the air time of said companies without due process and without
payment of just compensation.
In fact, even in the case of state-owned resources referred to earlier — like oil,
minerals and coal — once the license to exploit and develop them is granted to a
private corporation, the government can no longer arbitrarilyconfiscate or appropriate
them gratis under the guise of serving the common good. Crude oil, for instance,
once explored, drilled, and refined is thereafter considered the property of the
authorized explorer (or refiner) which can sell it to the public and even to the
government itself. The State simply cannot demand free gasoline for the operation of
public facilities even if they benefit the people in general. It still has to pay
compensation therefor.
III. Airwaves Useless Without Huge
Investment of Broadcast Companies
Setting up and operating a credible broadcasting network requires billions of pesos in
investments. It is precisely the broadcast licensee's use of a state-granted franchise
or privilege which occasions its acquisition of private property in the form of broadcast
facilities and its production of air time. These properties are distinct from its
franchise. 21The 1996 Audited Consolidated Balance Sheet of Petitioner GMA, on file
with the SEC, shows that its "property and equipment," which it uses in its broadcast
function, amount to over one billion pesos or, to be exact, P1,245,741,487. 22 This
does not include the cost of producing the programs to be broadcast, talent fees and
other aspects of broadcasting. In their Memorandum,23 petitioners explain that the
total cost for GMA to stay on the air (for television) at present is approximately
P136,100 per hour, which includes electricity, depreciation, repairs and maintenance,
technical facilities, salaries, and so on. The point is: The franchise holders can
recover their huge investments only by selling air time to advertisers. This is their
"product," their valuable property which Section 92 forcibly takes from them in
massive amounts without payment of just compensation.
It is too simplistic to say that because the Constitution allows Congress to alter
franchises, ergo, an unbridled taking of private property may be allowed. If such
appropriation were only, to use the words of PPI vs. Comelec, de minimis or
insignificant — say, one hour once or twice a month — perhaps, it can be justified by
the promotion of the "common good." But a taking in the gargantuan amount of over
P58 million from Petitioner GMA for the 1998 election season alone is an actual
seizure of its private investment, and not at all a reasonable "compensation" or
"alteration" for the "common good." Certainly, this partakes of CONFISCATION of
private property.
What makes the taking of air time even more odious is its ex post facto nature. When
the broadcast companies acquired their franchises and set up their expensive
facilities, they were not informed of the immensity of the donations they are now
compelled to give.
Note should be made, too, of the fact that what Section 92 takes away is air time. Air
time is the "finished product" after a station uses its own broadcast facilities. The
frequency is lust the specific "route" or "channel" by which this medium reaches the
TV sets of the general public. Technically, therefore, the wholesale alteration by
Section 92 of all broadcast franchise would appear unrelated to the compelled
donations. While the express modification is in the franchise, what Section 92 really
does is that it takes away the end product of the facilities which were set up through
the use of the entrepreneurs' investments and the broadcasters' work.
 EPILOGUE
By way of epilogue, I must point out that even Respondent Comelec expressly
recognizes the need for just compensation. Thus, Section 2 of its Resolution No.
2983-A states that "[e]very radio broadcasting and television station operating under
franchise shall grant the Commission, upon payment of just compensation, at least
thirty (30) minutes of prime time daily to be known as 'Comelec Time' . . ." And yet,
even with such a judicious legal position taken by the very agency tasked by the
Constitution to administer elections, the majority still insists on an arbitrary seizure of
precious property produced and owned by private enterprise.
That Petitioner GMA is a viable, even profitable, enterprise24is no argument for
seizing its profits. The State cannot rob the rich to feed the poor in the guise of
promoting the "common good." Truly, the end never justifies the means.
It cannot be denied that the amount and the extent of the air time demanded from
GMA is huge and exorbitant, amounting, I repeat, to over P58 million for the 1998
election season alone. If the air time required from "every radio and television station"
in the country in the magnitude stated in the aforesaid Comelec Resolution 2983-A is
added up and costed, the total would indeed be staggering — in several hundred
million pesos.
rationalization, the majority blithely ignores the private entrepreneurs' billion-peso
investments and the broadcast professionals' grit and toil in transforming these
invisible franchises into merchandisable property; and conveniently forgets the grim
reality that the taking of honestly earned media assets is unbridled, exorbitant and
arbitrary. Worse, the government,28 against which these constitutional rights to
property were in the first place written, prudently agrees to respect them and to pay
adequate compensation for their taking. But ironically, the majority rejects the
exemplary observance by the government of the people's rights and insists on the
confiscation of their private property.
I have always believed that the Supreme Court is the ever vigilant guardian of the
constitutional rights of the citizens and their ultimate protector against the tyrannies of
their own government. I am afraid that by this unfortunate Decision, the majority, in
this instance, has instead converted this honorable and majestic Court into the
people's unwitting oppressor.
WHEREFORE, I vote to GRANT the petition and to declare Section 92 of the
Omnibus Election Code UNCONSTITUTIONAL and VOID.
Purisima, J., dissents.

Smacking of undisguised discrimination is the fact that in PPI vs. Comelec, this Court
has required payment of print media ads but, in this case, compels broadcast stations
to donate their end product on a massive scale. The simplistic distinction given — that
radio and TV stations are mere grantees of government franchises while newspaper
companies are not — does not justify the grand larceny of precious air time. This is a
violation not only of private property, but also of the constitutional right to equal
protection itself. The proffered distinction between print and broadcast media is too
insignificant and too flimsy to be a valid justification for the discrimination. The print
and broadcast media are equal in the sense that both derive their revenues principally
from paid ads. They should thus be treated equally by the law in respect of such ads.

To sum up, the Bill of Rights of our Constitution expressly guarantees the following
rights:

1. No person, whether rich or poor, shall be deprived of property without due

process.25

2. Such property shall not be taken by the government, even for the use of the
general public, without first paying just compensation to the owner. 26

3. No one, regardless of social or financial status, shall be denied equal protection of

the law.27

The majority, however, peremptorily brushes aside all these sacred guarantees and
prefers to rely on the nebulous legal theory that broadcast stations are mere
recipients of state-granted franchises which can be altered or withdrawn anytime or
otherwise burdened with post facto elephantine yokes. By this short-circuited