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Marbury v. Madison, 5 U.S. 1 Cranch 137 137 (1803)

Marbury v. Madison
5 U.S. (1 Cranch) 137
Syllabus
The clerks of the Department of State of the United States may be called upon to give evidence of transactions in the
Department which are not of a confidential character.
The Secretary of State cannot be called upon as a witness to state transactions of a confidential nature which may have
occurred in his Department. But he may be called upon to give testimony of circumstances which were not of that
character.
Clerks in the Department of State were directed to be sworn, subject to objections to questions upon confidential matters.
Some point of time must be taken when the power of the Executive over an officer, not removable at his will, must cease.
That point of time must be when the constitutional power of appointment has been exercised. And the power has been
exercised when the last act required from the person possessing the power has been performed. This last act is the
signature of the commission.
If the act of livery be necessary to give validity to the commission of an officer, it has been delivered when executed, and
given to the Secretary of State for the purpose of being sealed, recorded, and transmitted to the party.
In cases of commissions to public officers, the law orders the Secretary of State to record them. When, therefore, they are
signed and sealed, the order for their being recorded is given, and, whether inserted inserted into the book or not, they are
recorded.
When the heads of the departments of the Government are the political or confidential officers of the Executive, merely to
execute the will of the President, or rather to act in cases in which the Executive possesses a constitutional or legal
discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific
duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the
individual who considers himself injured has a right to resort to the laws of his country for a remedy.
The President of the United States, by signing the commission, appointed Mr. Marbury a justice of the peace for the
County of Washington, in the District of Columbia, and the seal of the United States, affixed thereto by the Secretary of
State, is conclusive testimony of the verity of the signature, and of the completion of the appointment; and the
appointment conferred on him a legal right to the office for the space of five years. Having this legal right to the office, he
has a consequent right to the commission, a refusal to deliver which is a plain violation of that right for which the laws of
the country afford him a remedy.
To render a mandamus a proper remedy, the officer to whom it is directed must be one to whom, on legal principles, such
writ must be directed, and the person applying for it must be without any other specific remedy.
Where a commission to a public officer has been made out, signed, and sealed, and is withheld from the person entitled to
it, an action of detinue for the commission against the Secretary of State who refuses to deliver it is not the proper remedy,
as the judgment in detinue is for the thing itself, or its value. The value of a public office, not to be sold, is incapable of
being ascertained. It is a plain case for a mandamus, either to deliver the commission or a copy of it from the record.
To enable the Court to issue a mandamus to compel the delivery of the commission of a public office by the Secretary of
State, it must be shown that it is an exercise of appellate jurisdiction, or that it be necessary to enable them to exercise
appellate jurisdiction.
It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already
instituted, and does not create the cause.
The authority given to the Supreme Court by the act establishing the judicial system of the United States to issue writs of
mandamus to public officers appears not to be warranted by the Constitution.
It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases
must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the
operation of each.
If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the
Constitution, and not such ordinary act, must govern the case to which they both apply.
At the December Term, 1801, William Marbury, Dennis Ramsay, Robert Townsend Hooe, and William Harper, by their
counsel, severally moved the court for a rule to James Madison, Secretary of State of the United States, to show cause
why a mandamus should not issue commanding him to cause to be delivered to them respectively their several
commissions as justices of the peace in the District of Columbia. This motion was supported by affidavits of the following
facts: that notice of this motion had been given to Mr. Madison; that Mr. Adams, the late President of the United States,
nominated the applicants to the Senate for their advice and consent to be appointed justices of the peace of the District of
Columbia; that the Senate advised and consented to the appointments; that commissions in due form were signed by the
said President appointing them justices, &c., and that the seal of the United States was in due form affixed to the said
commissions by the Secretary of State; that the applicants have requested Mr. Madison to deliver them their said
commissions, who has not complied with that request; and that their said commissions are withheld from them; that the
applicants have made application to Mr. Madison as Secretary of State of the United States at his office, for information
whether the commissions were signed and sealed as aforesaid; that explicit and satisfactory information has not been
given in answer to that inquiry, either by the Secretary of State or any officer in the Department of State; that application
has been made to the secretary of the Senate for a certificate of the nomination of the applicants, and of the advice and
consent of the Senate, who has declined giving such a certificate; whereupon a rule was made to show cause on the
fourth day of this term. This rule having been duly served, Mr. Jacob Wagner and Mr. Daniel Brent, who had been

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summoned to attend the court and were required to give evidence, objected to be sworn, alleging that they were clerks in
the Department of State, and not bound to disclose any facts relating to the business or transactions of the office.
The court ordered the witnesses to be sworn, and their answers taken in writing, but informed them that, when the
questions were asked, they might state their objections to answering each particular question, if they had any.
Mr. Lincoln, who had been the acting Secretary of State, when the circumstances stated in the affidavits occurred, was
called upon to give testimony. He objected to answering. The questions were put in writing.
The court said there was nothing confidential required to be disclosed. If there had been, he was not obliged to answer it,
and if he thought anything was communicated to him confidentially, he was not bound to disclose, nor was he obliged to
state anything which would criminate himself.
The questions argued by the counsel for the relators were, 1. Whether the Supreme Court can award the writ of
mandamus in any case. 2. Whether it will lie to a Secretary of State, in any case whatever. 3. Whether, in the present
case, the Court may award a mandamus to James Madison, Secretary of State. Mr. Chief Justice MARSHALL delivered
the opinion of the Court.
At the last term, on the affidavits then read and filed with the clerk, a rule was granted in this case requiring the Secretary
of State to show cause why a mandamus should not issue directing him to deliver to William Marbury his commission as a
justice of the peace for the county of Washington, in the District of Columbia.
No cause has been shown, and the present motion is for a mandamus. The peculiar delicacy of this case, the novelty of
some of its circumstances, and the real difficulty attending the points which occur in it require a complete exposition of the
principles on which the opinion to be given by the Court is founded.
These principles have been, on the side of the applicant, very ably argued at the bar. In rendering the opinion of the Court,
there will be some departure in form, though not in substance, from the points stated in that argument.
In the order in which the Court has viewed this subject, the following questions have been considered and decided.
1. Has the applicant a right to the commission he demands?
2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?
3. If they do afford him a remedy, is it a mandamus issuing from this court?
The first object of inquiry is:
1. Has the applicant a right to the commission he demands?
His right originates in an act of Congress passed in February, 1801, concerning the District of Columbia.
After dividing the district into two counties, the eleventh section of this law enacts,
"that there shall be appointed in and for each of the said counties such number of discreet persons to be justices of the
peace as the President of the United States shall, from time to time, think expedient, to continue in office for five years. " It
appears from the affidavits that, in compliance with this law, a commission for William Marbury as a justice of peace for
the County of Washington was signed by John Adams, then President of the United States, after which the seal of the
United States was affixed to it, but the commission has never reached the person for whom it was made out.
In order to determine whether he is entitled to this commission, it becomes necessary to inquire whether he has been
appointed to the office. For if he has been appointed, the law continues him in office for five years, and he is entitled to the
possession of those evidences of office, which, being completed, became his property.
The second section of the second article of the Constitution declares,
"The President shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassadors, other
public ministers and consuls, and all other officers of the United States, whose appointments are not otherwise provided
for."
The third section declares, that "He shall commission all the officers of the United States."
An act of Congress directs the Secretary of State to keep the seal of the United States,
"to make out and record, and affix the said seal to all civil commissions to officers of the United States to be appointed by
the President, by and with the consent of the Senate, or by the President alone; provided that the said seal shall not be
affixed to any commission before the same shall have been signed by the President of the United States."
These are the clauses of the Constitution and laws of the United States which affect this part of the case. They seem to
contemplate three distinct operations:
1. The nomination. This is the sole act of the President, and is completely voluntary.
2. The appointment. This is also the act of the President, and is also a voluntary act, though it can only be performed by
and with the advice and consent of the Senate.
3. The commission. To grant a commission to a person appointed might perhaps be deemed a duty enjoined by the
Constitution. "He shall," says that instrument, "commission all the officers of the United States."
The acts of appointing to office and commissioning the person appointed can scarcely be considered as one and the
same, since the power to perform them is given in two separate and distinct sections of the Constitution. The distinction
between the appointment and the commission will be rendered more apparent by adverting to that provision in the second
section of the second article of the Constitution which authorises Congress

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"to vest by law the appointment of such inferior officers as they think proper in the President alone, in the Courts of law, or
in the heads of departments;"
thus contemplating cases where the law may direct the President to commission an officer appointed by the Courts or by
the heads of departments. In such a case, to issue a commission would be apparently a duty distinct from the
appointment, the performance of which perhaps could not legally be refused.
Although that clause of the Constitution which requires the President to commission all the officers of the United States
may never have been applied to officers appointed otherwise than by himself, yet it would be difficult to deny the
legislative power to apply it to such cases. Of consequence, the constitutional distinction between the appointment to an
office and the commission of an officer who has been appointed remains the same as if in practice the President had
commissioned officers appointed by an authority other than his own.
It follows too from the existence of this distinction that, if an appointment was to be evidenced by any public act other than
the commission, the performance of such public act would create the officer, and if he was not removable at the will of the
President, would either give him a right to his commission or enable him to perform the duties without it.
These observations are premised solely for the purpose of rendering more intelligible those which apply more directly to
the particular case under consideration. This is an appointment made by the President, by and with the advice and
consent of the Senate, and is evidenced by no act but the commission itself. In such a case, therefore, the commission
and the appointment seem inseparable, it being almost impossible to show an appointment otherwise than by proving the
existence of a commission; still, the commission is not necessarily the appointment; though conclusive evidence of it.
But at what stage does it amount to this conclusive evidence?
The answer to this question seems an obvious one. The appointment, being the sole act of the President, must be
completely evidenced when it is shown that he has done everything to be performed by him.
Should the commission, instead of being evidence of an appointment, even be considered as constituting the appointment
itself, still it would be made when the last act to be done by the President was performed, or, at furthest, when the
commission was complete.
The last act to be done by the President is the signature of the commission. He has then acted on the advice and consent
of the Senate to his own nomination. The time for deliberation has then passed. He has decided. His judgment, on the
advice and consent of the Senate concurring with his nomination, has been made, and the officer is appointed. This
appointment is evidenced by an open, unequivocal act, and, being the last act required from the person making it,
necessarily excludes the idea of its being, so far as it respects the appointment, an inchoate and incomplete transaction.
Some point of time must be taken when the power of the Executive over an officer, not removable at his will, must cease.
That point of time must be when the constitutional power of appointment has been exercised. And this power has been
exercised when the last act required from the person possessing the power has been performed. This last act is the
signature of the commission. This idea seems to have prevailed with the Legislature when the act passed converting the
Department of Foreign Affairs into the Department of State. By that act, it is enacted that the Secretary of State shall keep
the seal of the United States,"and shall make out and record, and shall affix the said seal to all civil commissions to
officers of the United States, to be appointed by the President: . . . provided that the said seal shall not be affixed to any
commission before the same shall have been signed by the President of the United States, nor to any other instrument or
act without the special warrant of the President therefor."
The signature is a warrant for affixing the great seal to the commission, and the great seal is only to be affixed to an
instrument which is complete. It attests, by an act supposed to be of public notoriety, the verity of the Presidential
signature.
It is never to be affixed till the commission is signed, because the signature, which gives force and effect to the
commission, is conclusive evidence that the appointment is made.
The commission being signed, the subsequent duty of the Secretary of State is prescribed by law, and not to be guided by
the will of the President. He is to affix the seal of the United States to the commission, and is to record it.
This is not a proceeding which may be varied if the judgment of the Executive shall suggest one more eligible, but is a
precise course accurately marked out by law, and is to be strictly pursued. It is the duty of the Secretary of State to
conform to the law, and in this he is an officer of the United States, bound to obey the laws. He acts, in this respect, as
has been very properly stated at the bar, under the authority of law, and not by the instructions of the President. It is a
ministerial act which the law enjoins on a particular officer for a particular purpose.
If it should be supposed that the solemnity of affixing the seal is necessary not only to the validity of the commission, but
even to the completion of an appointment, still, when the seal is affixed, the appointment is made, and the commission is
valid. No other solemnity is required by law; no other act is to be performed on the part of government. All that the
Executive can do to invest the person with his office is done, and unless the appointment be then made, the Executive
cannot make one without the cooperation of others.
After searching anxiously for the principles on which a contrary opinion may be supported, none has been found which
appear of sufficient force to maintain the opposite doctrine.
Such as the imagination of the Court could suggest have been very deliberately examined, and after allowing them all the
weight which it appears possible to give them, they do not shake the opinion which has been formed.
In considering this question, it has been conjectured that the commission may have been assimilated to a deed to the
validity of which delivery is essential.

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This idea is founded on the supposition that the commission is not merely evidence of an appointment, but is itself the
actual appointment -- a supposition by no means unquestionable. But, for the purpose of examining this objection fairly, let
it be conceded that the principle claimed for its support is established.
The appointment being, under the Constitution, to be made by the President personally, the delivery of the deed of
appointment, if necessary to its completion, must be made by the President also. It is not necessary that the livery should
be made personally to the grantee of the office; it never is so made. The law would seem to contemplate that it should be
made to the Secretary of State, since it directs the secretary to affix the seal to the commission after it shall have been
signed by the President. If then the act of livery be necessary to give validity to the commission, it has been delivered
when executed and given to the Secretary for the purpose of being sealed, recorded, and transmitted to the party.
But in all cases of letters patent, certain solemnities are required by law, which solemnities are the evidences of the
validity of the instrument. A formal delivery to the person is not among them. In cases of commissions, the sign manual of
the President and the seal of the United States are those solemnities. This objection therefore does not touch the case.
It has also occurred as possible, and barely possible, that the transmission of the commission and the acceptance thereof
might be deemed necessary to complete the right of the plaintiff.
The transmission of the commission is a practice directed by convenience, but not by law. It cannot therefore be
necessary to constitute the appointment, which must precede it and which is the mere act of the President. If the
Executive required that every person appointed to an office should himself take means to procure his commission, the
appointment would not be the less valid on that account. The appointment is the sole act of the President; the
transmission of the commission is the sole act of the officer to whom that duty is assigned, and may be accelerated or
retarded by circumstances which can have no influence on the appointment. A commission is transmitted to a person
already appointed, not to a person to be appointed or not, as the letter enclosing the commission should happen to get
into the post office and reach him in safety, or to miscarry.
It may have some tendency to elucidate this point to inquire whether the possession of the original commission be
indispensably necessary to authorize a person appointed to any office to perform the duties of that office. If it was
necessary, then a loss of the commission would lose the office. Not only negligence, but accident or fraud, fire or theft
might deprive an individual of his office. In such a case, I presume it could not be doubted but that a copy from the record
of the Office of the Secretary of State would be, to every intent and purpose, equal to the original. The act of Congress
has expressly made it so. To give that copy validity, it would not be necessary to prove that the original had been
transmitted and afterwards lost. The copy would be complete evidence that the original had existed, and that the
appointment had been made, but not that the original had been transmitted. If indeed it should appear that the original had
been mislaid in the Office of State, that circumstance would not affect the operation of the copy. When all the requisites
have been performed which authorize a recording officer to record any instrument whatever, and the order for that
purpose has been given, the instrument is in law considered as recorded, although the manual labour of inserting it in a
book kept for that purpose may not have been performed.
In the case of commissions, the law orders the Secretary of State to record them. When, therefore, they are signed and
sealed, the order for their being recorded is given, and, whether inserted in the book or not, they are in law recorded.
A copy of this record is declared equal to the original, and the fees to be paid by a person requiring a copy are ascertained
by law. Can a keeper of a public record erase therefrom a commission which has been recorded? Or can he refuse a copy
thereof to a person demanding it on the terms prescribed by law?
Such a copy would, equally with the original, authorize the justice of peace to proceed in the performance of his duty,
because it would, equally with the original, attest his appointment.
If the transmission of a commission be not considered as necessary to give validity to an appointment, still less is its
acceptance. The appointment is the sole act of the President; the acceptance is the sole act of the officer, and is, in plain
common sense, posterior to the appointment. As he may resign, so may he refuse to accept; but neither the one nor the
other is capable of rendering the appointment a nonentity.
That this is the understanding of the government is apparent from the whole tenor of its conduct.
A commission bears date, and the salary of the officer commences from his appointment, not from the transmission or
acceptance of his commission. When a person appointed to any office refuses to accept that office, the successor is
nominated in the place of the person who has declined to accept, and not in the place of the person who had been
previously in office and had created the original vacancy.
It is therefore decidedly the opinion of the Court that, when a commission has been signed by the President, the
appointment is made, and that the commission is complete when the seal of the United States has been affixed to it by the
Secretary of State.
Where an officer is removable at the will of the Executive, the circumstance which completes his appointment is of no
concern, because the act is at any time revocable, and the commission may be arrested if still in the office. But when the
officer is not removable at the will of the Executive, the appointment is not revocable, and cannot be annulled. It has
conferred legal rights which cannot be resumed.
The discretion of the Executive is to be exercised until the appointment has been made. But having once made the
appointment, his power over the office is terminated in all cases, where by law the officer is not removable by him. The
right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it.
Mr. Marbury, then, since his commission was signed by the President and sealed by the Secretary of State, was
appointed, and as the law creating the office gave the officer a right to hold for five years independent of the Executive,
the appointment was not revocable, but vested in the officer legal rights which are protected by the laws of his country.

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To withhold the commission, therefore, is an act deemed by the Court not warranted by law, but violative of a vested legal
right.
This brings us to the second inquiry, which is:
2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? The very essence of
civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an
injury. One of the first duties of government is to afford that protection. In Great Britain, the King himself is sued in the
respectful form of a petition, and he never fails to comply with the judgment of his court.
In the third volume of his Commentaries, page 23, Blackstone states two cases in which a remedy is afforded by mere
operation of law.
"In all other cases," he says,
"it is a general and indisputable rule that where there is a legal right, there is also a legal remedy by suit or action at law
whenever that right is invaded."
And afterwards, page 109 of the same volume, he says,
"I am next to consider such injuries as are cognizable by the Courts of common law. And herein I shall for the present only
remark that all possible injuries whatsoever that did not fall within the exclusive cognizance of either the ecclesiastical,
military, or maritime tribunals are, for that very reason, within the cognizance of the common law courts of justice, for it is a
settled and invariable principle in the laws of England that every right, when withheld, must have a remedy, and every
injury its proper redress."
The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly
cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.
If this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar character of the case.
It behooves us, then, to inquire whether there be in its composition any ingredient which shall exempt from legal
investigation or exclude the injured party from legal redress. In pursuing this inquiry, the first question which presents itself
is whether this can be arranged with that class of cases which come under the description of damnum absque injuria -- a
loss without an injury.
This description of cases never has been considered, and, it is believed, never can be considered, as comprehending
offices of trust, of honour or of profit. The office of justice of peace in the District of Columbia is such an office; it is
therefore worthy of the attention and guardianship of the laws. It has received that attention and guardianship. It has been
created by special act of Congress, and has been secured, so far as the laws can give security to the person appointed to
fill it, for five years. It is not then on account of the worthlessness of the thing pursued that the injured party can be alleged
to be without remedy.
Is it in the nature of the transaction? Is the act of delivering or withholding a commission to be considered as a mere
political act belonging to the Executive department alone, for the performance of which entire confidence is placed by our
Constitution in the Supreme Executive, and for any misconduct respecting which the injured individual has no remedy?
That there may be such cases is not to be questioned. but that every act of duty to be performed in any of the great
departments of government constitutes such a case is not to be admitted.
By the act concerning invalids, passed in June, 1794, the Secretary at War is ordered to place on the pension list all
persons whose names are contained in a report previously made by him to Congress. If he should refuse to do so, would
the wounded veteran be without remedy? Is it to be contended that where the law, in precise terms, directs the
performance of an act in which an individual is interested, the law is incapable of securing obedience to its mandate? Is it
on account of the character of the person against whom the complaint is made? Is it to be contended that the heads of
departments are not amenable to the laws of their country?
Whatever the practice on particular occasions may be, the theory of this principle will certainly never be maintained. No
act of the Legislature confers so extraordinary a privilege, nor can it derive countenance from the doctrines of the common
law. After stating that personal injury from the King to a subject is presumed to be impossible, Blackstone, Vol. III. p. 255,
says,
"but injuries to the rights of property can scarcely be committed by the Crown without the intervention of its officers, for
whom, the law, in matters of right, entertains no respect or delicacy, but furnishes various methods of detecting the errors
and misconduct of those agents by whom the King has been deceived and induced to do a temporary injustice."
By the act passed in 1796, authorizing the sale of the lands above the mouth of Kentucky river, the purchaser, on paying
his purchase money, becomes completely entitled to the property purchased, and, on producing to the Secretary of State
the receipt of the treasurer upon a certificate required by the law, the President of the United States is authorized to grant
him a patent. It is further enacted that all patents shall be countersigned by the Secretary of State, and recorded in his
office. If the Secretary of State should choose to withhold this patent, or, the patent being lost, should refuse a copy of it,
can it be imagined that the law furnishes to the injured person no remedy?
It is not believed that any person whatever would attempt to maintain such a proposition.
It follows, then, that the question whether the legality of an act of the head of a department be examinable in a court of
justice or not must always depend on the nature of that act.
If some acts be examinable and others not, there must be some rule of law to guide the Court in the exercise of its
jurisdiction.

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In some instances, there may be difficulty in applying the rule to particular cases; but there cannot, it is believed, be much
difficulty in laying down the rule.
By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of
which he is to use his own discretion, and is accountable only to his country in his political character and to his own
conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his
authority and in conformity with his orders.
In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive
discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They
respect the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive.
The application of this remark will be perceived by adverting to the act of Congress for establishing the Department of
Foreign Affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the President.
He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be
examinable by the Courts.
But when the Legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform
certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the
law, is amenable to the laws for his conduct, and cannot at his discretion, sport away the vested rights of others.
The conclusion from this reasoning is that, where the heads of departments are the political or confidential agents of the
Executive, merely to execute the will of the President, or rather to act in cases in which the Executive possesses a
constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable.
But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems
equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.
If this be the rule, let us inquire how it applies to the case under the consideration of the Court. The power of nominating to
the Senate, and the power of appointing the person nominated, are political powers, to be exercised by the President
according to his own discretion. When he has made an appointment, he has exercised his whole power, and his discretion
has been completely applied to the case. If, by law, the officer be removable at the will of the President, then a new
appointment may be immediately made, and the rights of the officer are terminated. But as a fact which has existed
cannot be made never to have existed, the appointment cannot be annihilated, and consequently, if the officer is by law
not removable at the will of the President, the rights he has acquired are protected by the law, and are not resumable by
the President. They cannot be extinguished by Executive authority, and he has the privilege of asserting them in like
manner as if they had been derived from any other source.
The question whether a right has vested or not is, in its nature, judicial, and must be tried by the judicial authority. If, for
example, Mr. Marbury had taken the oaths of a magistrate and proceeded to act as one, in consequence of which a suit
had been instituted against him in which his defence had depended on his being a magistrate; the validity of his
appointment must have been determined by judicial authority.
So, if he conceives that, by virtue of his appointment, he has a legal right either to the commission which has been made
out for him or to a copy of that commission, it is equally a question examinable in a court, and the decision of the Court
upon it must depend on the opinion entertained of his appointment.
That question has been discussed, and the opinion is that the latest point of time which can be taken as that at which the
appointment was complete and evidenced was when, after the signature of the President, the seal of the United States
was affixed to the commission.
It is then the opinion of the Court:
1. That, by signing the commission of Mr. Marbury, the President of the United States appointed him a justice of peace for
the County of Washington in the District of Columbia, and that the seal of the United States, affixed thereto by the
Secretary of State, is conclusive testimony of the verity of the signature, and of the completion of the appointment, and
that the appointment conferred on him a legal right to the office for the space of five years.
2. That, having this legal title to the office, he has a consequent right to the commission, a refusal to deliver which is a
plain violation of that right, for which the laws of his country afford him a remedy.
It remains to be inquired whether,
3. He is entitled to the remedy for which he applies. This depends on:
1. The nature of the writ applied for, and
2. The power of this court.
1. The nature of the writ.
Blackstone, in the third volume of his Commentaries, page 110, defines a mandamus to be
"a command issuing in the King's name from the Court of King's Bench, and directed to any person, corporation, or
inferior court of judicature within the King's dominions requiring them to do some particular thing therein specified which
appertains to their office and duty, and which the Court of King's Bench has previously determined, or at least supposes,
to be consonant to right and justice."
Lord Mansfield, in 3 Burrows, 1266, in the case of The King v. Baker et al., states with much precision and explicitness the
cases in which this writ may be used.
"Whenever," says that very able judge,
"there is a right to execute an office, perform a service, or exercise a franchise (more especially if it be in a matter of
public concern or attended with profit), and a person is kept out of possession, or dispossessed of such right, and has no

7
other specific legal remedy, this court ought to assist by mandamus, upon reasons of justice, as the writ expresses, and
upon reasons of public policy, to preserve peace, order and good government."
In the same case, he says,
"this writ ought to be used upon all occasions where the law has established no specific remedy, and where in justice and
good government there ought to be one."
In addition to the authorities now particularly cited, many others were relied on at the bar which show how far the practice
has conformed to the general doctrines that have been just quoted.
This writ, if awarded, would be directed to an officer of government, and its mandate to him would be, to use the words of
Blackstone,
"to do a particular thing therein specified, which appertains to his office and duty and which the Court has previously
determined or at least supposes to be consonant to right and justice."
Or, in the words of Lord Mansfield, the applicant, in this case, has a right to execute an office of public concern, and is
kept out of possession of that right.
These circumstances certainly concur in this case.
Still, to render the mandamus a proper remedy, the officer to whom it is to be directed must be one to whom, on legal
principles, such writ may be directed, and the person applying for it must be without any other specific and legal remedy.
1. With respect to the officer to whom it would be directed. The intimate political relation, subsisting between the President
of the United States and the heads of departments, necessarily renders any legal investigation of the acts of one of those
high officers peculiarly irksome, as well as delicate, and excites some hesitation with respect to the propriety of entering
into such investigation. Impressions are often received without much reflection or examination, and it is not wonderful that,
in such a case as this, the assertion by an individual of his legal claims in a court of justice, to which claims it is the duty of
that court to attend, should, at first view, be considered by some as an attempt to intrude into the cabinet and to
intermeddle with the prerogatives of the Executive.
It is scarcely necessary for the Court to disclaim all pretensions to such a jurisdiction. An extravagance so absurd and
excessive could not have been entertained for a moment. The province of the Court is solely to decide on the rights of
individuals, not to inquire how the Executive or Executive officers perform duties in which they have a discretion.
Questions, in their nature political or which are, by the Constitution and laws, submitted to the Executive, can never be
made in this court.
But, if this be not such a question; if so far from being an intrusion into the secrets of the cabinet, it respects a paper
which, according to law, is upon record, and to a copy of which the law gives a right, on the payment of ten cents; if it be
no intermeddling with a subject over which the Executive can be considered as having exercised any control; what is
there in the exalted station of the officer which shall bar a citizen from asserting in a court of justice his legal rights, or shall
forbid a court to listen to the claim or to issue a mandamus directing the performance of a duty not depending on
Executive discretion, but on particular acts of Congress and the general principles of law?
If one of the heads of departments commits any illegal act under colour of his office by which an individual sustains an
injury, it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding, and
being compelled to obey the judgment of the law. How then can his office exempt him from this particular mode of
deciding on the legality of his conduct if the case be such a case as would, were any other individual the party complained
of, authorize the process?
It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or
impropriety of issuing a mandamus is to be determined. Where the head of a department acts in a case in which
Executive discretion is to be exercised, in which he is the mere organ of Executive will, it is again repeated, that any
application to a court to control, in any respect, his conduct, would be rejected without hesitation.
But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which
he is not placed under the particular direction of the President, and the performance of which the President cannot lawfully
forbid, and therefore is never presumed to have forbidden -- as for example, to record a commission, or a patent for land,
which has received all the legal solemnities; or to give a copy of such record -- in such cases, it is not perceived on what
ground the Courts of the country are further excused from the duty of giving judgment that right to be done to an injured
individual than if the same services were to be performed by a person not the head of a department.
This opinion seems not now for the first time to be taken up in this country.
It must be well recollected that, in 1792, an act passed, directing the secretary at war to place on the pension list such
disabled officers and soldiers as should be reported to him by the Circuit Courts, which act, so far as the duty was
imposed on the Courts, was deemed unconstitutional; but some of the judges, thinking that the law might be executed by
them in the character of commissioners, proceeded to act and to report in that character.
This law being deemed unconstitutional at the circuits, was repealed, and a different system was established; but the
question whether those persons who had been reported by the judges, as commissioners, were entitled, in consequence
of that report, to be placed on the pension list was a legal question, properly determinable in the Courts, although the act
of placing such persons on the list was to be performed by the head of a department.
That this question might be properly settled, Congress passed an act in February, 1793, making it the duty of the
Secretary of War, in conjunction with the Attorney General, to take such measures as might be necessary to obtain an
adjudication of the Supreme Court of the United States on the validity of any such rights, claimed under the act aforesaid.

8
After the passage of this act, a mandamus was moved for, to be directed to the Secretary of War, commanding him to
place on the pension list a person stating himself to be on the report of the judges.
There is, therefore, much reason to believe that this mode of trying the legal right of the complainant was deemed by the
head of a department, and by the highest law officer of the United States, the most proper which could be selected for the
purpose.
When the subject was brought before the Court, the decision was not that a mandamus would not lie to the head of a
department directing him to perform an act enjoined by law, in the performance of which an individual had a vested
interest, but that a mandamus ought not to issue in that case -- the decision necessarily to be made if the report of the
commissioners did not confer on the applicant a legal right.
The judgment in that case is understood to have decided the merits of all claims of that description, and the persons, on
the report of the commissioners, found it necessary to pursue the mode prescribed by the law subsequent to that which
had been deemed unconstitutional in order to place themselves on the pension list.
The doctrine, therefore, now advanced is by no means a novel one.
It is true that the mandamus now moved for is not for the performance of an act expressly enjoined by statute.
It is to deliver a commission, on which subjects the acts of Congress are silent. This difference is not considered as
affecting the case. It has already been stated that the applicant has, to that commission, a vested legal right of which the
Executive cannot deprive him. He has been appointed to an office from which he is not removable at the will of the
Executive, and, being so appointed, he has a right to the commission which the Secretary has received from the President
for his use. The act of Congress does not, indeed, order the Secretary of State to send it to him, but it is placed in his
hands for the person entitled to it, and cannot be more lawfully withheld by him than by another person.
It was at first doubted whether the action of detinue was not a specific legal remedy for the commission which has been
withheld from Mr. Marbury, in which case a mandamus would be improper. But this doubt has yielded to the consideration
that the judgment in detinue is for the thing itself, or its value. The value of a public office not to be sold is incapable of
being ascertained, and the applicant has a right to the office itself, or to nothing. He will obtain the office by obtaining the
commission or a copy of it from the record.
This, then, is a plain case of a mandamus, either to deliver the commission or a copy of it from the record, and it only
remains to be inquired:
Whether it can issue from this Court.
The act to establish the judicial courts of the United States authorizes the Supreme Court
"to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons
holding office, under the authority of the United States."
The Secretary of State, being a person, holding an office under the authority of the United States, is precisely within the
letter of the description, and if this Court is not authorized to issue a writ of mandamus to such an officer, it must be
because the law is unconstitutional, and therefore absolutely incapable of conferring the authority and assigning the duties
which its words purport to confer and assign.
The Constitution vests the whole judicial power of the United States in one Supreme Court, and such inferior courts as
Congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the
laws of the United States; and consequently, in some form, may be exercised over the present case, because the right
claimed is given by a law of the United States.
In the distribution of this power. it is declared that
"The Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls,
and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction."
It has been insisted at the bar, that, as the original grant of jurisdiction to the Supreme and inferior courts is general, and
the clause assigning original jurisdiction to the Supreme Court contains no negative or restrictive words, the power
remains to the Legislature to assign original jurisdiction to that Court in other cases than those specified in the article
which has been recited, provided those cases belong to the judicial power of the United States.
If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme
and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than
to have defined the judicial power and the tribunals in which it should be vested. The subsequent part of the section is
mere surplusage -- is entirely without meaning -- if such is to be the construction. If Congress remains at liberty to give
this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original
jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the
Constitution, is form without substance.
Affirmative words are often, in their operation, negative of other objects than those affirmed, and, in this case, a negative
or exclusive sense must be given to them or they have no operation at all.
It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction
is inadmissible unless the words require it. If the solicitude of the Convention respecting our peace with foreign powers
induced a provision that the Supreme Court should take original jurisdiction in cases which might be supposed to affect
them, yet the clause would have proceeded no further than to provide for such cases if no further restriction on the powers
of Congress had been intended. That they should have appellate jurisdiction in all other cases, with such exceptions as
Congress might make, is no restriction unless the words be deemed exclusive of original jurisdiction.

9
When an instrument organizing fundamentally a judicial system divides it into one Supreme and so many inferior courts as
the Legislature may ordain and establish, then enumerates its powers, and proceeds so far to distribute them as to define
the jurisdiction of the Supreme Court by declaring the cases in which it shall take original jurisdiction, and that in others it
shall take appellate jurisdiction, the plain import of the words seems to be that, in one class of cases, its jurisdiction is
original, and not appellate; in the other, it is appellate, and not original. ,If any other construction would render the clause
inoperative, that is an additional reason for rejecting such other construction, and for adhering to the obvious meaning.
To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be
necessary to enable them to exercise appellate jurisdiction.
It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that, if it be the will
of the Legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true; yet the
jurisdiction must be appellate, not original.
It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already
instituted, and does not create that case. Although, therefore, a mandamus may be directed to courts, yet to issue such a
writ to an officer for the delivery of a paper is, in effect, the same as to sustain an original action for that paper, and
therefore seems not to belong to appellate, but to original jurisdiction. Neither is it necessary in such a case as this to
enable the Court to exercise its appellate jurisdiction.
The authority, therefore, given to the Supreme Court by the act establishing the judicial courts of the United States to
issue writs of mandamus to public officers appears not to be warranted by the Constitution, and it becomes necessary to
inquire whether a jurisdiction so conferred can be exercised.
The question whether an act repugnant to the Constitution can become the law of the land is a question deeply interesting
to the United States, but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise
certain principles, supposed to have been long and well established, to decide it.
That the people have an original right to establish for their future government such principles as, in their opinion, shall
most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of
this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so
established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act,
they are designed to be permanent.
This original and supreme will organizes the government and assigns to different departments their respective powers. It
may either stop here or establish certain limits not to be transcended by those departments.
The Government of the United States is of the latter description. The powers of the Legislature are defined and limited;
and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and
to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be
restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not
confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a
proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the
Legislature may alter the Constitution by an ordinary act.
Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable
by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature
shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be
true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.
Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount
law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant
to the Constitution is void.
This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of
the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.
If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and
oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a
law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too
gross to be insisted on. It shall, however, receive a more attentive consideration.
It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to
particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must
decide on the operation of each. So, if a law be in opposition to the Constitution, if both the law and the Constitution apply
to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution,
or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs
the case. This is of the very essence of judicial duty.
If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature,
the Constitution, and not such ordinary act, must govern the case to which they both apply.
Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are
reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.
This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to
the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that,
if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality

10
effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to
restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.
That it thus reduces to nothing what we have deemed the greatest improvement on political institutions -- a written
Constitution, would of itself be sufficient, in America where written Constitutions have been viewed with so much
reverence, for rejecting the construction. But the peculiar expressions of the Constitution of the United States furnish
additional arguments in favour of its rejection.
The judicial power of the United States is extended to all cases arising under the Constitution. Could it be the intention of
those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under
the Constitution should be decided without examining the instrument under which it arises?
This is too extravagant to be maintained.
In some cases then, the Constitution must be looked into by the judges. And if they can open it at all, what part of it are
they forbidden to read or to obey?
There are many other parts of the Constitution which serve to illustrate this subject.
It is declared that "no tax or duty shall be laid on articles exported from any State." Suppose a duty on the export of cotton,
of tobacco, or of flour, and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges
to close their eyes on the Constitution, and only see the law?
The Constitution declares that "no bill of attainder or ex post facto law shall be passed."
If, however, such a bill should be passed and a person should be prosecuted under it, must the Court condemn to death
those victims whom the Constitution endeavours to preserve?
"No person,' says the Constitution, 'shall be convicted of treason unless on the testimony of two witnesses to the same
overt act, or on confession in open court."
Here. the language of the Constitution is addressed especially to the Courts. It prescribes, directly for them, a rule of
evidence not to be departed from. If the Legislature should change that rule, and declare one witness, or a confession out
of court, sufficient for conviction, must the constitutional principle yield to the legislative act?
From these and many other selections which might be made, it is apparent that the framers of the Constitution
contemplated that instrument as a rule for the government of courts, as well as of the Legislature.
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to
their conduct in their official character. How immoral to impose it on them if they were to be used as the instruments, and
the knowing instruments, for violating what they swear to support!
The oath of office, too, imposed by the Legislature, is completely demonstrative of the legislative opinion on this subject. It
is in these words:
"I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich;
and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities
and understanding, agreeably to the Constitution and laws of the United States."
Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution
forms no rule for his government? if it is closed upon him and cannot be inspected by him?
If such be the real state of things, this is worse than solemn mockery. To prescribe or to take this oath becomes equally a
crime.
It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution
itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance
of the Constitution, have that rank.
Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed
to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other
departments, are bound by that instrument.
The rule must be discharged.
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11
MIRANDA v. ARIZONA, 384 U.S. 436 (1966)
384 U.S. 436
MIRANDA v. ARIZONA.
CERTIORARI TO THE SUPREME COURT OF ARIZONA.
No. 759.
Argued February 28 - March 1, 1966.
Decided June 13, 1966. *
[ Footnote * ] Together with No. 760, Vignera v. New York, on certiorari to the Court of Appeals of New York and No. 761,
Westover v. United States, on certiorari to the United States Court of Appeals for the Ninth Circuit, both argued February
28 - March 1, 1966; and No. 584, California v. Stewart, on certiorari to the Supreme Court of California, argued February
28 - March 2, 1966.
In each of these cases the defendant while in police custody was questioned by police officers, detectives, or a
prosecuting attorney in a room in which he was cut off from the outside world. None of the defendants was given a full and
effective warning of his rights at the outset of the interrogation process. In all four cases the questioning elicited oral
admissions, and in three of them signed statements as well, which were admitted at their trials. All defendants were
convicted and all convictions, except in No. 584, were affirmed on appeal. Held:
1. The prosecution may not use statements, whether exculpatory or inculpatory, stemming from questioning initiated by
law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any
significant way, unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendment's
privilege against self-incrimination. Pp. 444-491.
(a) The atmosphere and environment of incommunicado interrogation as it exists today is inherently intimidating and
works to undermine the privilege against self-incrimination. Unless adequate preventive measures are taken to dispel the
compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his
free choice. Pp. 445-458.
(b) The privilege against self-incrimination, which has had a long and expansive historical development, is the essential
mainstay of our adversary system and guarantees to the individual the "right to remain silent unless he chooses to speak
in the unfettered exercise of his own will," during a period of custodial interrogation [384 U.S. 436, 437] as well as in the
courts or during the course of other official investigations. Pp. 458-465.
(c) The decision in Escobedo v. Illinois, 378 U.S. 478 , stressed the need for protective devices to make the process of
police interrogation conform to the dictates of the privilege. Pp. 465-466.
(d) In the absence of other effective measures the following procedures to safeguard the Fifth Amendment privilege must
be observed: The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent,
and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult
with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to
represent him. Pp. 467-473.
(e) If the individual indicates, prior to or during questioning, that he wishes to remain silent, the interrogation must cease; if
he states that he wants an attorney, the questioning must cease until an attorney is present. Pp. 473-474.
(f) Where an interrogation is conducted without the presence of an attorney and a statement is taken, a heavy burden
rests on the Government to demonstrate that the defendant knowingly and intelligently waived his right to counsel. P. 475.
(g) Where the individual answers some questions during incustody interrogation he has not waived his privilege and may
invoke his right to remain silent thereafter. Pp. 475-476.
(h) The warnings required and the waiver needed are, in the absence of a fully effective equivalent, prerequisites to the
admissibility of any statement, inculpatory or exculpatory, made by a defendant. Pp. 476-477.
2. The limitations on the interrogation process required for the protection of the individual's constitutional rights should not
cause an undue interference with a proper system of law enforcement, as demonstrated by the procedures of the FBI and
the safeguards afforded in other jurisdictions. Pp. 479-491.
3. In each of these cases the statements were obtained under circumstances that did not meet constitutional standards for
protection of the privilege against self-incrimination.
John J. Flynn argued the cause for petitioner in No. 759. With him on the brief was John P. Frank. Victor M. Earle III
argued the cause and filed a brief for petitioner in No. 760. F. Conger Fawcett argued the cause and filed a brief for
petitioner in No. 761. Gordon Ringer, Deputy Attorney General of California, argued the cause for petitioner in No. 584.
With him on the briefs were Thomas C. Lynch, Attorney General, and William E. James, Assistant Attorney General.
Gary K. Nelson, Assistant Attorney General of Arizona, argued the cause for respondent in No. 759. With him on the brief
was Darrell F. Smith, Attorney General. William I. Siegel argued the cause for respondent in No. 760. With him on the brief
was Aaron E. Koota. Solicitor General Marshall argued the cause for the United States in No. 761. With him on the brief
were Assistant Attorney General Vinson, Ralph S. Spritzer, Nathan Lewin, Beatrice Rosenberg and Ronald L. Gainer.
William A. Norris, by appointment of the Court, 382 U.S. 952 , argued the cause and filed a brief for respondent in No.
584.
Telford Taylor, by special leave of Court, argued the cause for the State of New York, as amicus curiae, in all cases. With
him on the brief were Louis J. Lefkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney

12
General, and Barry Mahoney and George D. Zuckerman, Assistant Attorneys General, joined by the Attorneys General for
their respective States and jurisdictions as follows: Richmond M. Flowers of Alabama, Darrell F. Smith of Arizona, Bruce
Bennett of Arkansas, Duke W. Dunbar of Colorado, David P. Buckson of Delaware, Earl Faircloth of Florida, Arthur K.
Bolton of Georgia, Allan G. Shepard of Idaho, William G. Clark of Illinois, Robert C. Londerholm of Kansas, Robert
Matthews of Kentucky, Jack P. F. [384 U.S. 436, 439] Gremillion of Louisiana, Richard J. Dubord of Maine, Thomas B.
Finan of Maryland, Norman H. Anderson of Missouri, Forrest H. Anderson of Montana, Clarence A. H. Meyer of Nebraska,
T. Wade Bruton of North Carolina, Helgi Johanneson of North Dakota, Robert Y. Thornton of Oregon, Walter E.
Alessandroni of Pennsylvania, J. Joseph Nugent of Rhode Island, Daniel R. McLeod of South Carolina, Waggoner Carr of
Texas, Robert Y. Button of Virginia, John J. O'Connell of Washington, C. Donald Robertson of West Virginia, John F.
Raper of Wyoming, Rafael Hernandez Colon of Puerto Rico and Francisco Corneiro of the Virgin Islands.
Duane R. Nedrud, by special leave of Court, argued the cause for the National District Attorneys Association, as amicus
curiae, urging affirmance in Nos. 759 and 760, and reversal in No. 584. With him on the brief was Marguerite D. Oberto.
Anthony G. Amsterdam, Paul J. Mishkin, Raymond L. Bradley, Peter Hearn and Melvin L. Wulf filed a brief for the
American Civil Liberties Union, as amicus curiae, in all cases.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
The cases before us raise questions which go to the roots of our concepts of American criminal jurisprudence: the
restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime. More
specifically, we deal with the admissibility of statements obtained from an individual who is subjected to custodial police
interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth
Amendment to the Constitution not to be compelled to incriminate himself. [384 U.S. 436, 440]
We dealt with certain phases of this problem recently in Escobedo v. Illinois, 378 U.S. 478 (1964). There, as in the four
cases before us, law enforcement officials took the defendant into custody and interrogated him in a police station for the
purpose of obtaining a confession. The police did not effectively advise him of his right to remain silent or of his right to
consult with his attorney. Rather, they confronted him with an alleged accomplice who accused him of having perpetrated
a murder. When the defendant denied the accusation and said "I didn't shoot Manuel, you did it," they handcuffed him and
took him to an interrogation room. There, while handcuffed and standing, he was questioned for four hours until he
confessed. During this interrogation, the police denied his request to speak to his attorney, and they prevented his
retained attorney, who had come to the police station, from consulting with him. At his trial, the State, over his objection,
introduced the confession against him. We held that the statements thus made were constitutionally inadmissible.
This case has been the subject of judicial interpretation and spirited legal debate since it was decided two years ago. Both
state and federal courts, in assessing its implications, have arrived at varying conclusions. 1 A wealth of scholarly material
has been written tracing its ramifications and underpinnings. 2 Police and prosecutor [384 U.S. 436, 441] have
speculated on its range and desirability. 3 We granted certiorari in these cases, 382 U.S. 924, 925 , 937, in order further to
explore some facets of the problems, thus exposed, of applying the privilege against self-incrimination to in-custody
interrogation, and to give [384 U.S. 436, 442] concrete constitutional guidelines for law enforcement agencies and courts
to follow.
We start here, as we did in Escobedo, with the premise that our holding is not an innovation in our jurisprudence, but is an
application of principles long recognized and applied in other settings. We have undertaken a thorough re-examination of
the Escobedo decision and the principles it announced, and we reaffirm it. That case was but an explication of basic rights
that are enshrined in our Constitution - that "No person . . . shall be compelled in any criminal case to be a witness against
himself," and that "the accused shall . . . have the Assistance of Counsel" - rights which were put in jeopardy in that case
through official overbearing. These precious rights were fixed in our Constitution only after centuries of persecution and
struggle. And in the words of Chief Justice Marshall, they were secured "for ages to come, and . . . designed to approach
immortality as nearly as human institutions can approach it," Cohens v. Virginia, 6 Wheat. 264, 387 (1821).
Over 70 years ago, our predecessors on this Court eloquently stated:
"The maxim nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust
methods of interrogating accused persons, which [have] long obtained in the continental system, and, until the expulsion
of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people
against the exercise of arbitrary power, [were] not uncommon even in England. While the admissions or confessions of
the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an
accused person be asked to explain his apparent connection with a crime under investigation, the ease with which
the [384 U.S. 436, 443] questions put to him may assume an inquisitorial character, the temptation to press the witness
unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions,
which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the
Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English
criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and
silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English,
as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the
minds of the American colonists that the States, with one accord, made a denial of the right to question an accused
person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in
this country with the impregnability of a constitutional enactment." Brown v. Walker, 161 U.S. 591, 596 -597 (1896).
In stating the obligation of the judiciary to apply these constitutional rights, this Court declared in Weems v. United
States, 217 U.S. 349, 373 (1910):
". . . our contemplation cannot be only of what has been but of what may be. Under any other rule a constitution would
indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little
value and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality.

13
And this has been recognized. The [384 U.S. 436, 444] meaning and vitality of the Constitution have developed against
narrow and restrictive construction."
This was the spirit in which we delineated, in meaningful language, the manner in which the constitutional rights of the
individual could be enforced against overzealous police practices. It was necessary in Escobedo, as here, to insure that
what was proclaimed in the Constitution had not become but a "form of words," Silverthorne Lumber Co. v. United
States, 251 U.S. 385, 392 (1920), in the hands of government officials. And it is in this spirit, consistent with our role as
judges, that we adhere to the principles of Escobedo today.
Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution
may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By
custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way. 4 As for the procedural safeguards to be
employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure
a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be
warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and
that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of
these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner
and at any stage of the [384 U.S. 436, 445] process that he wishes to consult with an attorney before speaking there can
be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be
interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered
some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has
consulted with an attorney and thereafter consents to be questioned.
I.
The constitutional issue we decide in each of these cases is the admissibility of statements obtained from a defendant
questioned while in custody or otherwise deprived of his freedom of action in any significant way. In each, the defendant
was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside
world. In none of these cases was the defendant given a full and effective warning of his rights at the outset of the
interrogation process. In all the cases, the questioning elicited oral admissions, and in three of them, signed statements as
well which were admitted at their trials. They all thus share salient features - incommunicado interrogation of individuals in
a police-dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights.
An understanding of the nature and setting of this in-custody interrogation is essential to our decisions today. The difficulty
in depicting what transpires at such interrogations stems from the fact that in this country they have largely taken place
incommunicado. From extensive factual studies undertaken in the early 1930's, including the famous Wickersham Report
to Congress by a Presidential Commission, it is clear that police violence and the "third degree" flourished at that
time. 5 [384 U.S. 436, 446] In a series of cases decided by this Court long after these studies, the police resorted to
physical brutality - beating, hanging, whipping - and to sustained and protracted questioning incommunicado in order to
extort confessions. 6 The Commission on Civil Rights in 1961 found much evidence to indicate that "some policemen still
resort to physical force to obtain confessions," 1961 Comm'n on Civil Rights Rep., Justice, pt. 5, 17. The use of physical
brutality and violence is not, unfortunately, relegated to the past or to any part of the country. Only recently in Kings
County, New York, the police brutally beat, kicked and placed lighted cigarette butts on the back of a potential witness
under interrogation for the purpose of securing a statement incriminating a third party
The examples given above are undoubtedly the exception now, but they are sufficiently widespread to be the object of
concern. Unless a proper limitation upon custodial interrogation is achieved - such as these decisions will advance - there
can be no assurance that practices of this nature will be eradicated in the foreseeable future. The conclusion of the
Wickersham Commission Report, made over 30 years ago, is still pertinent:
"To the contention that the third degree is necessary to get the facts, the reporters aptly reply in the language of the
present Lord Chancellor of England (Lord Sankey): `It is not admissible to do a great right by doing a little wrong. . . . It is
not sufficient to do justice by obtaining a proper result by irregular or improper means.' Not only does the use of the third
degree involve a flagrant violation of law by the officers of the law, but it involves also the dangers of false confessions,
and it tends to make police and prosecutors less zealous in the search for objective evidence. As the New York prosecutor
quoted in the report said, `It is a short cut and makes the police lazy and unenterprising.' Or, as another official quoted
remarked: `If you use your fists, you [384 U.S. 436, 448] are not so likely to use your wits.' We agree with the conclusion
expressed in the report, that `The third degree brutalizes the police, hardens the prisoner against society, and lowers the
esteem in which the administration of justice is held by the public.'"
Again we stress that the modern practice of in-custody interrogation is psychologically rather than physically oriented. As
we have stated before, "Since Chambers v. Florida, 309 U.S. 227 , this Court has recognized that coercion can be mental
as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition." Blackburn
v. Alabama, 361 U.S. 199, 206 (1960). Interrogation still takes place in privacy. Privacy results in secrecy and this in turn
results in a gap in our knowledge as to what in fact goes on in the interrogation rooms. A valuable source of information
about present police practices, however, may be found in various police manuals and texts which document procedures
employed with success in the past, and which recommend various other effective tactics. 8 These [384 U.S. 436,
449] texts are used by law enforcement agencies themselves as guides. 9 It should be noted that these texts professedly
present the most enlightened and effective means presently used to obtain statements through custodial interrogation. By
considering these texts and other data, it is possible to describe procedures observed and noted around the country.
The officers are told by the manuals that the "principal psychological factor contributing to a successful interrogation is
privacy - being alone with the person under interrogation." 10 The efficacy of this tactic has been explained as follows:

14
"If at all practicable, the interrogation should take place in the investigator's office or at least in a room of his own choice.
The subject should be deprived of every psychological advantage. In his own home he may be confident, indignant, or
recalcitrant. He is more keenly aware of his rights and [384 U.S. 436, 450] more reluctant to tell of his indiscretions or
criminal behavior within the walls of his home. Moreover his family and other friends are nearby, their presence lending
moral support. In his own office, the investigator possesses all the advantages. The atmosphere suggests the invincibility
of the forces of the law." 11
To highlight the isolation and unfamiliar surroundings, the manuals instruct the police to display an air of confidence in the
suspect's guilt and from outward appearance to maintain only an interest in confirming certain details. The guilt of the
subject is to be posited as a fact. The interrogator should direct his comments toward the reasons why the subject
committed the act, rather than court failure by asking the subject whether he did it. Like other men, perhaps the subject
has had a bad family life, had an unhappy childhood, had too much to drink, had an unrequited desire for women. The
officers are instructed to minimize the moral seriousness of the offense, 12 to cast blame on the victim or on
society. 13 These tactics are designed to put the subject in a psychological state where his story is but an elaboration of
what the police purport to know already - that he is guilty. Explanations to the contrary are dismissed and discouraged.
The texts thus stress that the major qualities an interrogator should possess are patience and perseverance. [384 U.S.
436, 451] One writer describes the efficacy of these characteristics in this manner:
"In the preceding paragraphs emphasis has been placed on kindness and stratagems. The investigator will, however,
encounter many situations where the sheer weight of his personality will be the deciding factor. Where emotional appeals
and tricks are employed to no avail, he must rely on an oppressive atmosphere of dogged persistence. He must
interrogate steadily and without relent, leaving the subject no prospect of surcease. He must dominate his subject and
overwhelm him with his inexorable will to obtain the truth. He should interrogate for a spell of several hours pausing only
for the subject's necessities in acknowledgment of the need to avoid a charge of duress that can be technically
substantiated. In a serious case, the interrogation may continue for days, with the required intervals for food and sleep,
but with no respite from the atmosphere of domination. It is possible in this way to induce the subject to talk without
resorting to duress or coercion. The method should be used only when the guilt of the subject appears highly
probable." 14
The manuals suggest that the suspect be offered legal excuses for his actions in order to obtain an initial admission of
guilt. Where there is a suspected revenge-killing, for example, the interrogator may say:
"Joe, you probably didn't go out looking for this fellow with the purpose of shooting him. My guess is, however, that you
expected something from him and that's why you carried a gun - for your own protection. You knew him for what he was,
no good. Then when you met him he probably started using foul, abusive language and he gave some indication [384
U.S. 436, 452] that he was about to pull a gun on you, and that's when you had to act to save your own life. That's about
it, isn't it, Joe?" 15
Having then obtained the admission of shooting, the interrogator is advised to refer to circumstantial evidence which
negates the self-defense explanation. This should enable him to secure the entire story. One text notes that "Even if he
fails to do so, the inconsistency between the subject's original denial of the shooting and his present admission of at least
doing the shooting will serve to deprive him of a self-defense `out' at the time of trial." 16
When the techniques described above prove unavailing, the texts recommend they be alternated with a show of some
hostility. One ploy often used has been termed the "friendly-unfriendly" or the "Mutt and Jeff" act:
". . . In this technique, two agents are employed. Mutt, the relentless investigator, who knows the subject is guilty and is
not going to waste any time. He's sent a dozen men away for this crime and he's going to send the subject away for the
full term. Jeff, on the other hand, is obviously a kindhearted man. He has a family himself. He has a brother who was
involved in a little scrape like this. He disapproves of Mutt and his tactics and will arrange to get him off the case if the
subject will cooperate. He can't hold Mutt off for very long. The subject would be wise to make a quick decision. The
technique is applied by having both investigators present while Mutt acts out his role. Jeff may stand by quietly and demur
at some of Mutt's tactics. When Jeff makes his plea for cooperation, Mutt is not present in the room." 17 [384 U.S. 436,
453]
The interrogators sometimes are instructed to induce a confession out of trickery. The technique here is quite effective in
crimes which require identification or which run in series. In the identification situation, the interrogator may take a break in
his questioning to place the subject among a group of men in a line-up. "The witness or complainant (previously coached,
if necessary) studies the line-up and confidently points out the subject as the guilty party." 18 Then the questioning
resumes "as though there were now no doubt about the guilt of the subject." A variation on this technique is called the
"reverse line-up":
"The accused is placed in a line-up, but this time he is identified by several fictitious witnesses or victims who associated
him with different offenses. It is expected that the subject will become desperate and confess to the offense under
investigation in order to escape from the false accusations."19
The manuals also contain instructions for police on how to handle the individual who refuses to discuss the matter entirely,
or who asks for an attorney or relatives. The examiner is to concede him the right to remain silent. "This usually has a very
undermining effect. First of all, he is disappointed in his expectation of an unfavorable reaction on the part of the
interrogator. Secondly, a concession of this right to remain silent impresses [384 U.S. 436, 454] the subject with the
apparent fairness of his interrogator." 20 After this psychological conditioning, however, the officer is told to point out the
incriminating significance of the suspect's refusal to talk:
"Joe, you have a right to remain silent. That's your privilege and I'm the last person in the world who'll try to take it away
from you. If that's the way you want to leave this, O. K. But let me ask you this. Suppose you were in my shoes and I were
in yours and you called me in to ask me about this and I told you, `I don't want to answer any of your questions.' You'd
think I had something to hide, and you'd probably be right in thinking that. That's exactly what I'll have to think about you,
and so will everybody else. So let's sit here and talk this whole thing over." 21

15
Few will persist in their initial refusal to talk, it is said, if this monologue is employed correctly.
In the event that the subject wishes to speak to a relative or an attorney, the following advice is tendered:
"[T]he interrogator should respond by suggesting that the subject first tell the truth to the interrogator himself rather than
get anyone else involved in the matter. If the request is for an attorney, the interrogator may suggest that the subject save
himself or his family the expense of any such professional service, particularly if he is innocent of the offense under
investigation. The interrogator may also add, `Joe, I'm only looking for the truth, and if you're telling the truth, that's it. You
can handle this by yourself.'" 22 [384 U.S. 436, 455]
From these representative samples of interrogation techniques, the setting prescribed by the manuals and observed in
practice becomes clear. In essence, it is this: To be alone with the subject is essential to prevent distraction and to deprive
him of any outside support. The aura of confidence in his guilt undermines his will to resist. He merely confirms the
preconceived story the police seek to have him describe. Patience and persistence, at times relentless questioning, are
employed. To obtain a confession, the interrogator must "patiently maneuver himself or his quarry into a position from
which the desired objective may be attained." 23 When normal procedures fail to produce the needed result, the police
may resort to deceptive stratagems such as giving false legal advice. It is important to keep the subject off balance, for
example, by trading on his insecurity about himself or his surroundings. The police then persuade, trick, or cajole him out
of exercising his constitutional rights.
Even without employing brutality, the "third degree" or the specific stratagems described above, the very fact of custodial
interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals. 24 [384 U.S. 436,
456] This fact may be illustrated simply by referring to three confession cases decided by this Court in the Term
immediately preceding our Escobedo decision. In Townsend v. Sain, 372 U.S. 293 (1963), the defendant was a 19-yearold heroin addict, described as a "near mental defective," id., at 307-310. The defendant in Lynumn v. Illinois, 372 U.S.
528 (1963), was a woman who confessed to the arresting officer after being importuned to "cooperate" in order to prevent
her children from being taken by relief authorities. This Court as in those cases reversed the conviction of a defendant in
Haynes v. Washington, 373 U.S. 503 (1963), whose persistent request during his interrogation was to phone his wife or
attorney. 25 In other settings, these individuals might have exercised their constitutional rights. In the incommunicado
police-dominated atmosphere, they succumbed.
In the cases before us today, given this background, we concern ourselves primarily with this interrogation atmosphere
and the evils it can bring. In No. 759, Miranda v. Arizona, the police arrested the defendant and took him to a special
interrogation room where they secured a confession. In No. 760, Vignera v. New York, the defendant made oral
admissions to the police after interrogation in the afternoon, and then signed an inculpatory statement upon being
questioned by an assistant district attorney later the same evening. In No. 761, Westover v. United States, the defendant
was handed over to the Federal Bureau of Investigation by [384 U.S. 436, 457] local authorities after they had detained
and interrogated him for a lengthy period, both at night and the following morning. After some two hours of questioning,
the federal officers had obtained signed statements from the defendant. Lastly, in No. 584, California v. Stewart, the local
police held the defendant five days in the station and interrogated him on nine separate occasions before they secured his
inculpatory statement.
In these cases, we might not find the defendants' statements to have been involuntary in traditional terms. Our concern for
adequate safeguards to protect precious Fifth Amendment rights is, of course, not lessened in the slightest. In each of the
cases, the defendant was thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures.
The potentiality for compulsion is forcefully apparent, for example, in Miranda, where the indigent Mexican defendant was
a seriously disturbed individual with pronounced sexual fantasies, and in Stewart, in which the defendant was an indigent
Los Angeles Negro who had dropped out of school in the sixth grade. To be sure, the records do not evince overt physical
coercion or patent psychological ploys. The fact remains that in none of these cases did the officers undertake to afford
appropriate safeguards at the outset of the interrogation to insure that the statements were truly the product of free
choice.
It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the
will of his examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but
it is equally destructive of human dignity. 26 The current practice of incommunicado interrogation is at odds with one of
our [384 U.S. 436, 458] Nation's most cherished principles - that the individual may not be compelled to incriminate
himself. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no
statement obtained from the defendant can truly be the product of his free choice.
From the foregoing, we can readily perceive an intimate connection between the privilege against self-incrimination and
police custodial questioning. It is fitting to turn to history and precedent underlying the Self-Incrimination Clause to
determine its applicability in this situation.
II.
We sometimes forget how long it has taken to establish the privilege against self-incrimination, the sources from which it
came and the fervor with which it was defended. Its roots go back into ancient times. 27 Perhaps [384 U.S. 436, 459] the
critical historical event shedding light on its origins and evolution was the trial of one John Lilburn, a vocal anti-Stuart
Leveller, who was made to take the Star Chamber Oath in 1637. The oath would have bound him to answer to all
questions posed to him on any subject. The Trial of John Lilburn and John Wharton, 3 How. St. Tr. 1315 (1637). He
resisted the oath and declaimed the proceedings, stating:
"Another fundamental right I then contended for, was, that no man's conscience ought to be racked by oaths imposed, to
answer to questions concerning himself in matters criminal, or pretended to be so." Haller & Davies, The Leveller Tracts
1647-1653, p. 454 (1944).

16
On account of the Lilburn Trial, Parliament abolished the inquisitorial Court of Star Chamber and went further in giving him
generous reparation. The lofty principles to which Lilburn had appealed during his trial gained popular acceptance in
England. 28 These sentiments worked their way over to the Colonies and were implanted after great struggle into the Bill
of Rights. 29 Those who framed our Constitution and the Bill of Rights were ever aware of subtle encroachments on
individual liberty. They knew that "illegitimate and unconstitutional practices get their first footing . . . by silent approaches
and slight deviations from legal modes of procedure." Boyd v. United States, 116 U.S. 616, 635 (1886). The privilege was
elevated to constitutional status and has always been "as broad as the mischief [384 U.S. 436, 460] against which it
seeks to guard." Counselman v. Hitchcock, 142 U.S. 547, 562 (1892). We cannot depart from this noble heritage.
Thus we may view the historical development of the privilege as one which groped for the proper scope of governmental
power over the citizen. As a "noble principle often transcends its origins," the privilege has come rightfully to be
recognized in part as an individual's substantive right, a "right to a private enclave where he may lead a private life. That
right is the hallmark of our democracy." United States v. Grunewald, 233 F.2d 556, 579, 581-582 (Frank, J., dissenting),
rev'd, 353 U.S. 391 (1957). We have recently noted that the privilege against self-incrimination - the essential mainstay of
our adversary system - is founded on a complex of values, Murphy v. Waterfront Comm'n, 378 U.S. 52, 55 -57, n. 5
(1964); Tehan v. Shott, 382 U.S. 406, 414 -415, n. 12 (1966). All these policies point to one overriding thought: the
constitutional foundation underlying the privilege is the respect a government - state or federal - must accord to the dignity
and integrity of its citizens. To maintain a "fair state-individual balance," to require the government "to shoulder the entire
load," 8 Wigmore, Evidence 317 (McNaughton rev. 1961), to respect the inviolability of the human personality, our
accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence
against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth.
Chambers v. Florida, 309 U.S. 227, 235 -238 (1940). In sum, the privilege is fulfilled only when the person is guaranteed
the right "to remain silent unless he chooses to speak in the unfettered exercise of his own will." Malloy v. Hogan, 378
U.S. 1, 8 (1964).
The question in these cases is whether the privilege is fully applicable during a period of custodial interrogation. [384 U.S.
436, 461] In this Court, the privilege has consistently been accorded a liberal construction. Albertson v. SACB, 382 U.S.
70, 81 (1965); Hoffman v. United States, 341 U.S. 479, 486(1951); Arndstein v. McCarthy, 254 U.S. 71, 72 -73 (1920);
Counselman v. Hitchock, 142 U.S. 547, 562(1892). We are satisfied that all the principles embodied in the privilege apply
to informal compulsion exerted by law-enforcement officers during in-custody questioning. An individual swept from
familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of
persuasion described above cannot be otherwise than under compulsion to speak. As a practical matter, the compulsion
to speak in the isolated setting of the police station may well be greater than in courts or other official investigations,
where there are often impartial observers to guard against intimidation or trickery. 30
This question, in fact, could have been taken as settled in federal courts almost 70 years ago, when, in Bram v. United
States, 168 U.S. 532, 542 (1897), this Court held:
"In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent
because not voluntary, the issue is controlled by that portion of the Fifth Amendment . . . commanding that no person
`shall be compelled in any criminal case to be a witness against himself.'"
In Bram, the Court reviewed the British and American history and case law and set down the Fifth Amendment standard
for compulsion which we implement today:
"Much of the confusion which has resulted from the effort to deduce from the adjudged cases what [384 U.S. 436,
462] would be a sufficient quantum of proof to show that a confession was or was not voluntary, has arisen from a
misconception of the subject to which the proof must address itself. The rule is not that in order to render a statement
admissible the proof must be adequate to establish that the particular communications contained in a statement were
voluntarily made, but it must be sufficient to establish that the making of the statement was voluntary; that is to say, that
from the causes, which the law treats as legally sufficient to engender in the mind of the accused hope or fear in respect
to the crime charged, the accused was not involuntarily impelled to make a statement, when but for the improper
influences he would have remained silent. . . ." 168 U.S., at 549 . And see, id., at 542.
The Court has adhered to this reasoning. In 1924, Mr. Justice Brandeis wrote for a unanimous Court in reversing a
conviction resting on a compelled confession, Wan v. United States, 266 U.S. 1 . He stated:
"In the federal courts, the requisite of voluntariness is not satisfied by establishing merely that the confession was not
induced by a promise or a threat. A confession is voluntary in law if, and only if, it was, in fact, voluntarily made. A
confession may have been given voluntarily, although it was made to police officers, while in custody, and in answer to an
examination conducted by them. But a confession obtained by compulsion must be excluded whatever may have been
the character of the compulsion, and whether the compulsion was applied in a judicial proceeding or otherwise. Bram v.
United States,168 U.S. 532 ." 266 U.S., at 14 -15.
In addition to the expansive historical development of the privilege and the sound policies which have nurtured [384 U.S.
436, 463] its evolution, judicial precedent thus clearly establishes its application to incommunicado interrogation. In fact,
the Government concedes this point as well established in No. 761, Westover v. United States, stating: "We have no
doubt . . . that it is possible for a suspect's Fifth Amendment right to be violated during in-custody questioning by a lawenforcement officer." 31
Because of the adoption by Congress of Rule 5 (a) of the Federal Rules of Criminal Procedure, and this Court's
effectuation of that Rule in McNabb v. United States, 318 U.S. 332 (1943), and Mallory v. United States, 354 U.S.
449 (1957), we have had little occasion in the past quarter century to reach the constitutional issues in dealing with federal
interrogations. These supervisory rules, requiring production of an arrested person before a commissioner "without
unnecessary delay" and excluding evidence obtained in default of that statutory obligation, were nonetheless responsive
to the same considerations of Fifth Amendment policy that unavoidably face us now as to the States. In McNabb,318 U.S.,

17
at 343 -344, and in Mallory, 354 U.S., at 455 -456, we recognized both the dangers of interrogation and the
appropriateness of prophylaxis stemming from the very fact of interrogation itself. 32
Our decision in Malloy v. Hogan, 378 U.S. 1 (1964), necessitates an examination of the scope of the privilege in state
cases as well. In Malloy, we squarely held the [384 U.S. 436, 464] privilege applicable to the States, and held that the
substantive standards underlying the privilege applied with full force to state court proceedings. There, as in Murphy v.
Waterfront Comm'n, 378 U.S. 52 (1964), and Griffin v. California, 380 U.S. 609 (1965), we applied the existing Fifth
Amendment standards to the case before us. Aside from the holding itself, the reasoning in Malloy made clear what had
already become apparent - that the substantive and procedural safeguards surrounding admissibility of confessions in
state cases had become exceedingly exacting, reflecting all the policies embedded in the privilege, 378 U.S., at 7 8. 33 The voluntariness doctrine in the state cases, as Malloy indicates, encompasses all interrogation practices which are
likely to exert such pressure upon an individual as to disable him from [384 U.S. 436, 465] making a free and rational
choice. 34 The implications of this proposition were elaborated in our decision in Escobedo v. Illinois, 378 U.S. 478 ,
decided one week after Malloy applied the privilege to the States.
Our holding there stressed the fact that the police had not advised the defendant of his constitutional privilege to remain
silent at the outset of the interrogation, and we drew attention to that fact at several points in the decision, 378 U.S., at
483 , 485, 491. This was no isolated factor, but an essential ingredient in our decision. The entire thrust of police
interrogation there, as in all the cases today, was to put the defendant in such an emotional state as to impair his capacity
for rational judgment. The abdication of the constitutional privilege - the choice on his part to speak to the police - was not
made knowingly or competently because of the failure to apprise him of his rights; the compelling atmosphere of the incustody interrogation, and not an independent decision on his part, caused the defendant to speak.
A different phase of the Escobedo decision was significant in its attention to the absence of counsel during the
questioning. There, as in the cases today, we sought a protective device to dispel the compelling atmosphere of the
interrogation. In Escobedo, however, the police did not relieve the defendant of the anxieties which they had created in the
interrogation rooms. Rather, they denied his request for the assistance of counsel, made his later statements the
product of this compulsion. Cf. Haynes v. Washington, 373 U.S. 503, 514 (1963). The denial of the defendant's request for
his attorney thus undermined his ability to exercise the privilege - to remain silent if he chose or to speak without any
intimidation, blatant or subtle. The presence of counsel, in all the cases before us today, would be the adequate protective
device necessary to make the process of police interrogation conform to the dictates of the privilege. His presence would
insure that statements made in the government-established atmosphere are not the product of compulsion.
It was in this manner that Escobedo explicated another facet of the pre-trial privilege, noted in many of the Court's prior
decisions: the protection of rights at trial. 36 That counsel is present when statements are taken from an individual during
interrogation obviously enhances the integrity of the fact-finding processes in court. The presence of an attorney, and the
warnings delivered to the individual, enable the defendant under otherwise compelling circumstances to tell his story
without fear, effectively, and in a way that eliminates the evils in the interrogation process. Without the protections flowing
from adequate warnings and the rights of counsel, "all the careful safeguards erected around the giving of testimony,
whether by an accused or any other witness, would become empty formalities in a procedure where the most compelling
possible evidence of guilt, a confession, would have already been obtained at the unsupervised pleasure of the police."
III.
Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings
and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being
compelled to incriminate themselves. We have concluded that without proper safeguards the process of in-custody
interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to
undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely. In order to
combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused
must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.
It is impossible for us to foresee the potential alternatives for protecting the privilege which might be devised by Congress
or the States in the exercise of their creative rule-making capacities. Therefore we cannot say that the Constitution
necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as it is
presently conducted. Our decision in no way creates a constitutional straitjacket which will handicap sound efforts at
reform, nor is it intended to have this effect. We encourage Congress and the States to continue their laudable search for
increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal
laws. However, unless we are shown other procedures which are at least as effective in apprising accused persons of
their right of silence and in assuring a continuous opportunity to exercise it, the following safeguards must be observed.
At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and [384 U.S.
436, 468] unequivocal terms that he has the right to remain silent. For those unaware of the privilege, the warning is
needed simply to make them aware of it - the threshold requirement for an intelligent decision as to its exercise. More
important, such a warning is an absolute prerequisite in overcoming the inherent pressures of the interrogation
atmosphere. It is not just the subnormal or woefully ignorant who succumb to an interrogator's imprecations, whether
implied or expressly stated, that the interrogation will continue until a confession is obtained or that silence in the face of
accusation is itself damning and will bode ill when presented to a jury. 37 Further, the warning will show the individual that
his interrogators are prepared to recognize his privilege should he choose to exercise it.
The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an
adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether
the defendant was aware of his rights without a warning being given. Assessments of the knowledge the defendant
possessed, based on information [384 U.S. 436, 469] as to his age, education, intelligence, or prior contact with
authorities, can never be more than speculation; 38 a warning is a clearcut fact. More important, whatever the background

18
of the person interrogated, a warning at the time of the interrogation is indispensable to overcome its pressures and to
insure that the individual knows he is free to exercise the privilege at that point in time.
The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used
against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the
consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of
real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more
acutely aware that he is faced with a phase of the adversary system - that he is not in the presence of persons acting
solely in his interest.
The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made
aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is
indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to
assure that the individual's right to choose between silence and speech remains unfettered throughout the interrogation
process. A once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice to that end
among those who most require knowledge of their rights. A mere [384 U.S. 436, 470] warning given by the interrogators
is not alone sufficient to accomplish that end. Prosecutors themselves claim that the admonishment of the right to remain
silent without more "will benefit only the recidivist and the professional." Brief for the National District Attorneys Association
as amicus curiae, p. 14. Even preliminary advice given to the accused by his own attorney can be swiftly overcome by the
secret interrogation process. Cf. Escobedo v. Illinois, 378 U.S. 478, 485 , n. 5. Thus, the need for counsel to protect the
Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have
counsel present during any questioning if the defendant so desires.
The presence of counsel at the interrogation may serve several significant subsidiary functions as well. If the accused
decides to talk to his interrogators, the assistance of counsel can mitigate the dangers of untrustworthiness. With a lawyer
present the likelihood that the police will practice coercion is reduced, and if coercion is nevertheless exercised the lawyer
can testify to it in court. The presence of a lawyer can also help to guarantee that the accused gives a fully accurate
statement to the police and that the statement is rightly reported by the prosecution at trial. See Crooker v. California, 357
U.S. 433, 443 -448 (1958) (DOUGLAS, J., dissenting).
An individual need not make a pre-interrogation request for a lawyer. While such request affirmatively secures his right to
have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during
interrogation can be recognized unless specifically made after the warnings we here delineate have been given. The
accused who does not know his rights and therefore does not make a request [384 U.S. 436, 471] may be the person
who most needs counsel. As the California Supreme Court has aptly put it:
"Finally, we must recognize that the imposition of the requirement for the request would discriminate against the defendant
who does not know his rights. The defendant who does not ask for counsel is the very defendant who most needs
counsel. We cannot penalize a defendant who, not understanding his constitutional rights, does not make the formal
request and by such failure demonstrates his helplessness. To require the request would be to favor the defendant whose
sophistication or status had fortuitously prompted him to make it." People v. Dorado, 62 Cal. 2d 338, 351, 398 P.2d 361,
369-370, 42 Cal. Rptr. 169, 177-178 (1965) (Tobriner, J.).
In Carnley v. Cochran, 369 U.S. 506, 513 (1962), we stated: "[I]t is settled that where the assistance of counsel is a
constitutional requisite, the right to be furnished counsel does not depend on a request." This proposition applies with
equal force in the context of providing counsel to protect an accused's Fifth Amendment privilege in the face of
interrogation. 39 Although the role of counsel at trial differs from the role during interrogation, the differences are not
relevant to the question whether a request is a prerequisite.
Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a
lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate
today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this
warning is an absolute prerequisite to interrogation. No amount of [384 U.S. 436, 472] circumstantial evidence that the
person may have been aware of this right will suffice to stand in its stead: Only through such a warning is there
ascertainable assurance that the accused was aware of this right.
If an individual indicates that he wishes the assistance of counsel before any interrogation occurs, the authorities cannot
rationally ignore or deny his request on the basis that the individual does not have or cannot afford a retained attorney.
The financial ability of the individual has no relationship to the scope of the rights involved here. The privilege against selfincrimination secured by the Constitution applies to all individuals. The need for counsel in order to protect the privilege
exists for the indigent as well as the affluent. In fact, were we to limit these constitutional rights to those who can retain an
attorney, our decisions today would be of little significance. The cases before us as well as the vast majority of confession
cases with which we have dealt in the past involve those unable to retain counsel. 40 While authorities are not required to
relieve the accused of his poverty, they have the obligation not to take advantage of indigence in the administration of
justice. 41 Denial [384 U.S. 436, 473] of counsel to the indigent at the time of interrogation while allowing an attorney to
those who can afford one would be no more supportable by reason or logic than the similar situation at trial and on appeal
struck down in Gideon v. Wainwright, 372 U.S. 335 (1963), and Douglas v. California, 372 U.S. 353 (1963).
In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him
not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to
represent him. Without this additional warning, the admonition of the right to consult with counsel would often be
understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of
a right to counsel would be hollow if not couched in terms that would convey to the indigent - the person most often
subjected to interrogation - the knowledge that he too has a right to have counsel present. 42 As with the warnings of the
right to remain silent and of the general right to counsel, only by effective and express explanation to the indigent of this
right can there be assurance that he was truly in a position to exercise it. 43

19
Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, [384 U.S.
436, 474] at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. 44 At
this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person
invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off
questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a
statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation
must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney
and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates
that he wants one before speaking to police, they must respect his decision to remain silent.
This does not mean, as some have suggested, that each police station must have a "station house lawyer" present at all
times to advise prisoners. It does mean, however, that if police propose to interrogate a person they must make known to
him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any
interrogation. If authorities conclude that they will not provide counsel during a reasonable period of time in which
investigation in the field is carried out, they may refrain from doing so without violating the person's Fifth Amendment
privilege so long as they do not question him during that time. [384 U.S. 436, 475]
If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the
government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination
and his right to retained or appointed counsel. Escobedo v. Illinois, 378 U.S. 478, 490 , n. 14. This Court has always set
high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458 (1938), and we re-assert
these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated
circumstances under which the interrogation takes place and has the only means of making available corroborated
evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.
An express statement that the individual is willing to make a statement and does not want an attorney followed closely by
a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after
warnings are given or simply from the fact that a confession was in fact eventually obtained. A statement we made in
Carnley v. Cochran, 369 U.S. 506, 516 (1962), is applicable here:
"Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and
evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer.
Anything less is not waiver."
See also Glasser v. United States, 315 U.S. 60 (1942). Moreover, where in-custody interrogation is involved, there is no
room for the contention that the privilege is waived if the individual answers some questions or gives [384 U.S. 436,
476] some information on his own prior to invoking his right to remain silent when interrogated. 45
Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or
incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his
rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion
that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary
relinquishment of the privilege. Moreover, any evidence that the accused was threatened, tricked, or cajoled into a waiver
will, of course, show that the defendant did not voluntarily waive his privilege. The requirement of warnings and waiver of
rights is a fundamental with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing
methods of interrogation.
The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully
effective equivalent, prerequisites to the admissibility of any statement made by a defendant. No distinction can be drawn
between statements which are direct confessions and statements which amount to "admissions" of part or all of an
offense. The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any
manner; it does not distinguish degrees of incrimination. Similarly, [384 U.S. 436, 477] for precisely the same reason, no
distinction may be drawn between inculpatory statements and statements alleged to be merely "exculpatory." If a
statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements
merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate
untruths in the statement given under interrogation and thus to prove guilt by implication. These statements are
incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver
required for any other statement. In Escobedo itself, the defendant fully intended his accusation of another as the slayer to
be exculpatory as to himself.
The principles announced today deal with the protection which must be given to the privilege against self-incrimination
when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his
freedom of action in any significant way. It is at this point that our adversary system of criminal proceedings commences,
distinguishing itself at the outset from the inquisitorial system recognized in some countries. Under the system of warnings
we delineate today or under any other system which may be devised and found effective, the safeguards to be erected
about the privilege must come into play at this point.
Our decision is not intended to hamper the traditional function of police officers in investigating crime. See Escobedo v.
Illinois, 378 U.S. 478, 492 . When an individual is in custody on probable cause, the police may, of course, seek out
evidence in the field to be used at trial against him. Such investigation may include inquiry of persons not under restraint.
General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the factfinding process is not affected by our holding. It is an act of [384 U.S. 436, 478] responsible citizenship for individuals to
give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere
inherent in the process of in-custody interrogation is not necessarily present. 46
In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible.
Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any

20
compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is
in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he
can be interrogated. There is no requirement that police stop a person who enters a police station and states that he
wishes to confess to a crime, 47 or a person who calls the police to offer a confession or any other statement he desires
to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected
by our holding today.
To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the
authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized.
Procedural safeguards must be employed to [384 U.S. 436, 479] protect the privilege, and unless other fully effective
means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be
scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the
right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence
of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so
desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings
have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and
agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the
prosecution at trial, no evidence obtained as a result of interrogation can be used against him. 48
IV.
A recurrent argument made in these cases is that society's need for interrogation outweighs the privilege. This argument
is not unfamiliar to this Court. See, e. g., Chambers v. Florida, 309 U.S. 227, 240 -241 (1940). The whole thrust of our
foregoing discussion demonstrates that the Constitution has prescribed the rights of the individual when confronted with
the power of government when it provided in the Fifth Amendment that an individual cannot be compelled to be a witness
against himself. That right cannot be abridged. As Mr. Justice Brandeis once observed:
"Decency, security and liberty alike demand that government officials shall be subjected to the same[384 U.S. 436,
480] rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be
imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or
for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it
breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the
administration of the criminal law the end justifies the means . . . would bring terrible retribution. Against that pernicious
doctrine this Court should resolutely set its face." Olmstead v. United States,277 U.S. 438, 485 (1928) (dissenting
opinion). 49
In this connection, one of our country's distinguished jurists has pointed out: "The quality of a nation's civilization can be
largely measured by the methods it uses in the enforcement of its criminal law." 50
If the individual desires to exercise his privilege, he has the right to do so. This is not for the authorities to decide. An
attorney may advise his client not to talk to police until he has had an opportunity to investigate the case, or he may wish
to be present with his client during any police questioning. In doing so an attorney is merely exercising the good
professional judgment he has been taught. This is not cause for considering the attorney a menace to law enforcement.
He is merely carrying out what he is sworn to do under his oath - to protect to the extent of his ability the rights of his [384
U.S. 436, 481] client. In fulfilling this responsibility the attorney plays a vital role in the administration of criminal justice
under our Constitution.
In announcing these principles, we are not unmindful of the burdens which law enforcement officials must bear, often
under trying circumstances. We also fully recognize the obligation of all citizens to aid in enforcing the criminal laws. This
Court, while protecting individual rights, has always given ample latitude to law enforcement agencies in the legitimate
exercise of their duties. The limits we have placed on the interrogation process should not constitute an undue
interference with a proper system of law enforcement. As we have noted, our decision does not in any way preclude
police from carrying out their traditional investigatory functions. Although confessions may play an important role in some
convictions, the cases before us present graphic examples of the overstatement of the "need" for confessions. In each
case authorities conducted interrogations ranging up to five days in duration despite the presence, through standard
investigating practices, of considerable evidence against each defendant. 51 Further examples are chronicled in our prior
cases. See, e. g., Haynes v. Washington,373 U.S. 503, 518 -519 (1963); Rogers v. Richmond, 365 U.S. 534, 541 (1961);
Malinski v. New York,324 U.S. 401, 402 (1945). 52 [384 U.S. 436, 482]
It is also urged that an unfettered right to detention for interrogation should be allowed because it will often redound to the
benefit of the person questioned. When police inquiry determines that there is no reason to believe that the person has
committed any crime, it is said, he will be released without need for further formal procedures. The person who has
committed no offense, however, will be better able to clear himself after warnings with counsel present than without. It can
be assumed that in such circumstances a lawyer would advise his client to talk freely to police in order to clear himself.
Custodial interrogation, by contrast, does not necessarily afford the innocent an opportunity to clear themselves. A serious
consequence of the present practice of the interrogation alleged to be beneficial for the innocent is that many arrests "for
investigation" subject large numbers of innocent persons to detention and interrogation. In one of the cases before us, No.
584, California v. Stewart, police held four persons, who were in the defendant's house at the time of the arrest, in jail for
five days until defendant confessed. At that time they were finally released. Police stated that there was "no evidence to
connect them with any crime." Available statistics on the extent of this practice where it is condoned indicate that these
four are far from alone in being subjected to arrest, prolonged detention, and interrogation without the requisite probable
cause. 53 [384 U.S. 436, 483]
Over the years the Federal Bureau of Investigation has compiled an exemplary record of effective law enforcement while
advising any suspect or arrested person, at the outset of an interview, that he is not required to make a statement, that
any statement may be used against him in court, that the individual may obtain the services of an attorney of his own
choice and, more recently, that he has a right to free counsel if he is unable to pay. 54 A letter received from the Solicitor

21
General in response to a question from the Bench makes it clear that the present pattern of warnings and respect for
the [384 U.S. 436, 484] rights of the individual followed as a practice by the FBI is consistent with the procedure which
we delineate today. It states:
"At the oral argument of the above cause, Mr. Justice Fortas asked whether I could provide certain information as to the
practices followed by the Federal Bureau of Investigation. I have directed these questions to the attention of the Director
of the Federal Bureau of Investigation and am submitting herewith a statement of the questions and of the answers which
we have received.
"`(1) When an individual is interviewed by agents of the Bureau, what warning is given to him?
"`The standard warning long given by Special Agents of the FBI to both suspects and persons under arrest is that the
person has a right to say nothing and a right to counsel, and that any statement he does make may be used against him
in court. Examples of this warning are to be found in the Westover case at 342 F.2d 684 (1965), and Jackson v. U.S., 337
F.2d 136 (1964), cert. den. 380 U.S. 935 .
"`After passage of the Criminal Justice Act of 1964, which provides free counsel for Federal defendants unable to pay, we
added to our instructions to Special Agents the requirement that any person who is under arrest for an offense under FBI
jurisdiction, or whose arrest is contemplated following the interview, must also be advised of his right to free counsel if he
is unable to pay, and the fact that such counsel will be assigned by the Judge. At the same time, we broadened the right to
counsel warning[384 U.S. 436, 485] to read counsel of his own choice, or anyone else with whom he might wish to
speak.
"`(2) When is the warning given?
"`The FBI warning is given to a suspect at the very outset of the interview, as shown in the Westover case, cited above.
The warning may be given to a person arrested as soon as practicable after the arrest, as shown in the Jackson case,
also cited above, and in U.S. v. Konigsberg, 336 F.2d 844 (1964), cert. den. 379 U.S. 933 , but in any event it must
precede the interview with the person for a confession or admission of his own guilt.
"`(3) What is the Bureau's practice in the event that (a) the individual requests counsel and (b) counsel appears?
"`When the person who has been warned of his right to counsel decides that he wishes to consult with counsel before
making a statement, the interview is terminated at that point, Shultz v. U.S., 351 F.2d 287 (1965). It may be continued,
however, as to all matters other than the person's own guilt or innocence. If he is indecisive in his request for counsel,
there may be some question on whether he did or did not waive counsel. Situations of this kind must necessarily be left to
the judgment of the interviewing Agent. For example, in Hiram v. U.S., 354 F.2d 4 (1965), the Agent's conclusion that the
person arrested had waived his right to counsel was upheld by the courts.
"`A person being interviewed and desiring to consult counsel by telephone must be permitted to do so, as shown in
Caldwell v. U.S., 351 F.2d 459 (1965). When counsel appears in person, he is permitted to confer with his client in
private. [384 U.S. 436, 486]
"`(4) What is the Bureau's practice if the individual requests counsel, but cannot afford to retain an attorney?
"`If any person being interviewed after warning of counsel decides that he wishes to consult with counsel before
proceeding further the interview is terminated, as shown above. FBI Agents do not pass judgment on the ability of the
person to pay for counsel. They do, however, advise those who have been arrested for an offense under FBI jurisdiction,
or whose arrest is contemplated following the interview, of a right to free counsel if they are unable to pay, and the
availability of such counsel from the Judge.'" 55
The practice of the FBI can readily be emulated by state and local enforcement agencies. The argument that the FBI
deals with different crimes than are dealt with by state authorities does not mitigate the significance of the FBI
experience. 56
The experience in some other countries also suggests that the danger to law enforcement in curbs on interrogation is
overplayed. The English procedure since 1912 under the Judges' Rules is significant. As recently [384 U.S. 436,
487] strengthened, the Rules require that a cautionary warning be given an accused by a police officer as soon as he
has evidence that affords reasonable grounds for suspicion; they also require that any statement made be given by the
accused without questioning by police. 57 [384 U.S. 436, 488] The right of the individual to consult with an attorney
during this period is expressly recognized. 58
The safeguards present under Scottish law may be even greater than in England. Scottish judicial decisions bar use in
evidence of most confessions obtained through police interrogation. 59 In India, confessions made to police not in the
presence of a magistrate have been excluded [384 U.S. 436, 489] by rule of evidence since 1872, at a time when it
operated under British law. 60 Identical provisions appear in the Evidence Ordinance of Ceylon, enacted in
1895. 61 Similarly, in our country the Uniform Code of Military Justice has long provided that no suspect may be
interrogated without first being warned of his right not to make a statement and that any statement he makes may be used
against him.62 Denial of the right to consult counsel during interrogation has also been proscribed by military
tribunals. 63 There appears to have been no marked detrimental effect on criminal law enforcement in these jurisdictions
as a result of these rules. Conditions of law enforcement in our country are sufficiently similar to permit reference to this
experience as assurance that lawlessness will not result from warning an individual of his rights or allowing him to
exercise them. Moreover, it is consistent with our legal system that we give at least as much protection to these rights as
is given in the jurisdictions described. We deal in our country with rights grounded in a specific requirement of the Fifth
Amendment of the Constitution, [384 U.S. 436, 490] whereas other jurisdictions arrived at their conclusions on the basis
of principles of justice not so specifically defined. 64
It is also urged upon us that we withhold decision on this issue until state legislative bodies and advisory groups have had
an opportunity to deal with these problems by rule making. 65 We have already pointed out that the Constitution does not
require any specific code of procedures for protecting the privilege against self-incrimination during custodial interrogation.
Congress and the States are free to develop their own safeguards for the privilege, so long as they are fully as effective as
those described above in informing accused persons of their right of silence and in affording a continuous opportunity to
exercise it. In any event, however, the issues presented are of constitutional dimensions and must be determined by the
courts. The admissibility of a statement in the face of a claim that it was obtained in violation of the defendant's
constitutional rights is an issue the resolution of which has long since been undertaken by this Court. See Hopt v.

22
Utah, 110 U.S. 574(1884). Judicial solutions to problems of constitutional dimension have evolved decade by decade. As
courts have been presented with the need to enforce constitutional rights, they have found means of doing so. That was
our responsibility when Escobedo was before us and it is our [384 U.S. 436, 491] responsibility today. Where rights
secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.
V.
Because of the nature of the problem and because of its recurrent significance in numerous cases, we have to this point
discussed the relationship of the Fifth Amendment privilege to police interrogation without specific concentration on the
facts of the cases before us. We turn now to these facts to consider the application to these cases of the constitutional
principles discussed above. In each instance, we have concluded that statements were obtained from the defendant
under circumstances that did not meet constitutional standards for protection of the privilege.
No. 759. Miranda v. Arizona.
On March 13, 1963, petitioner, Ernesto Miranda, was arrested at his home and taken in custody to a Phoenix police
station. He was there identified by the complaining witness. The police then took him to "Interrogation Room No. 2" of the
detective bureau. There he was questioned by two police officers. The officers admitted at trial that Miranda was not
advised that he had a right to have an attorney present. 66 Two hours later, the [384 U.S. 436, 492] officers emerged
from the interrogation room with a written confession signed by Miranda. At the top of the statement was a typed
paragraph stating that the confession was made voluntarily, without threats or promises of immunity and "with full
knowledge of my legal rights, understanding any statement I make may be used against me." 67
At his trial before a jury, the written confession was admitted into evidence over the objection of defense counsel, and the
officers testified to the prior oral confession made by Miranda during the interrogation. Miranda was found guilty of
kidnapping and rape. He was sentenced to 20 to 30 years' imprisonment on each count, the sentences to run
concurrently. On appeal, the Supreme Court of Arizona held that Miranda's constitutional rights were not violated in
obtaining the confession and affirmed the conviction. 98 Ariz. 18, 401 P.2d 721. In reaching its decision, the court
emphasized heavily the fact that Miranda did not specifically request counsel.
We reverse. From the testimony of the officers and by the admission of respondent, it is clear that Miranda was not in any
way apprised of his right to consult with an attorney and to have one present during the interrogation, nor was his right not
to be compelled to incriminate himself effectively protected in any other manner. Without these warnings the statements
were inadmissible. The mere fact that he signed a statement which contained a typed-in clause stating that he had "full
knowledge" of his "legal rights" does not approach the knowing and intelligent waiver required to relinquish constitutional
rights. Cf. Haynes v. Washington, 373 U.S. 503 , [384 U.S. 436, 493] 512-513 (1963); Haley v. Ohio, 332 U.S. 596,
601 (1948) (opinion of MR. JUSTICE DOUGLAS).
No. 760. Vignera v. New York.
Petitioner, Michael Vignera, was picked up by New York police on October 14, 1960, in connection with the robbery three
days earlier of a Brooklyn dress shop. They took him to the 17th Detective Squad headquarters in Manhattan. Sometime
thereafter he was taken to the 66th Detective Squad. There a detective questioned Vignera with respect to the robbery.
Vignera orally admitted the robbery to the detective. The detective was asked on cross-examination at trial by defense
counsel whether Vignera was warned of his right to counsel before being interrogated. The prosecution objected to the
question and the trial judge sustained the objection. Thus, the defense was precluded from making any showing that
warnings had not been given. While at the 66th Detective Squad, Vignera was identified by the store owner and a
saleslady as the man who robbed the dress shop. At about 3 p. m. he was formally arrested. The police then transported
him to still another station, the 70th Precinct in Brooklyn, "for detention." At 11 p. m. Vignera was questioned by an
assistant district attorney in the presence of a hearing reporter who transcribed the questions and Vignera's answers. This
verbatim account of these proceedings contains no statement of any warnings given by the assistant district attorney. At
Vignera's trial on a charge of first degree robbery, the detective testified as to the oral confession. The transcription of the
statement taken was also introduced in evidence. At the conclusion of the testimony, the trial judge charged the jury in part
as follows:
"The law doesn't say that the confession is void or invalidated because the police officer didn't advise the defendant as to
his rights. Did you hear what [384 U.S. 436, 494] I said? I am telling you what the law of the State of New York is."
Vignera was found guilty of first degree robbery. He was subsequently adjudged a third-felony offender and sentenced to
30 to 60 years' imprisonment. 68 The conviction was affirmed without opinion by the Appellate Division, Second
Department, 21 App. Div. 2d 752, 252 N. Y. S. 2d 19, and by the Court of Appeals, also without opinion, 15 N. Y. 2d 970,
207 N. E. 2d 527, 259 N. Y. S. 2d 857, remittitur amended, 16 N. Y. 2d 614, 209 N. E. 2d 110, 261 N. Y. S. 2d 65. In
argument to the Court of Appeals, the State contended that Vignera had no constitutional right to be advised of his right to
counsel or his privilege against self-incrimination.
We reverse. The foregoing indicates that Vignera was not warned of any of his rights before the questioning by the
detective and by the assistant district attorney. No other steps were taken to protect these rights. Thus he was not
effectively apprised of his Fifth Amendment privilege or of his right to have counsel present and his statements are
inadmissible.
No. 761. Westover v. United States.
At approximately 9:45 p. m. on March 20, 1963, petitioner, Carl Calvin Westover, was arrested by local police in Kansas
City as a suspect in two Kansas City robberies. A report was also received from the FBI that he was wanted on a felony
charge in California. The local authorities took him to a police station and placed him in a line-up on the local charges, and
at about 11:45 p. m. he was booked. Kansas City police interrogated Westover [384 U.S. 436, 495] on the night of his
arrest. He denied any knowledge of criminal activities. The next day local officers interrogated him again throughout the
morning. Shortly before noon they informed the FBI that they were through interrogating Westover and that the FBI could

23
proceed to interrogate him. There is nothing in the record to indicate that Westover was ever given any warning as to his
rights by local police. At noon, three special agents of the FBI continued the interrogation in a private interview room of the
Kansas City Police Department, this time with respect to the robbery of a savings and loan association and a bank in
Sacramento, California. After two or two and one-half hours, Westover signed separate confessions to each of these two
robberies which had been prepared by one of the agents during the interrogation. At trial one of the agents testified, and a
paragraph on each of the statements states, that the agents advised Westover that he did not have to make a statement,
that any statement he made could be used against him, and that he had the right to see an attorney.
Westover was tried by a jury in federal court and convicted of the California robberies. His statements were introduced at
trial. He was sentenced to 15 years' imprisonment on each count, the sentences to run consecutively. On appeal, the
conviction was affirmed by the Court of Appeals for the Ninth Circuit. 342 F.2d 684.
We reverse. On the facts of this case we cannot find that Westover knowingly and intelligently waived his right to remain
silent and his right to consult with counsel prior to the time he made the statement.69 At the [384 U.S. 436, 496] time the
FBI agents began questioning Westover, he had been in custody for over 14 hours and had been interrogated at length
during that period. The FBI interrogation began immediately upon the conclusion of the interrogation by Kansas City police
and was conducted in local police headquarters. Although the two law enforcement authorities are legally distinct and the
crimes for which they interrogated Westover were different, the impact on him was that of a continuous period of
questioning. There is no evidence of any warning given prior to the FBI interrogation nor is there any evidence of an
articulated waiver of rights after the FBI commenced its interrogation. The record simply shows that the defendant did in
fact confess a short time after being turned over to the FBI following interrogation by local police. Despite the fact that the
FBI agents gave warnings at the outset of their interview, from Westover's point of view the warnings came at the end of
the interrogation process. In these circumstances an intelligent waiver of constitutional rights cannot be assumed.
We do not suggest that law enforcement authorities are precluded from questioning any individual who has been held for
a period of time by other authorities and interrogated by them without appropriate warnings. A different case would be
presented if an accused were taken into custody by the second authority, removed both in time and place from his original
surroundings, and then adequately advised of his rights and given an opportunity to exercise them. But here the FBI
interrogation was conducted immediately following the state interrogation in the same police station - in the same
compelling surroundings. Thus, in obtaining a confession from Westover [384 U.S. 436, 497] the federal authorities were
the beneficiaries of the pressure applied by the local in-custody interrogation. In these circumstances the giving of
warnings alone was not sufficient to protect the privilege.
No. 584. California v. Stewart.
In the course of investigating a series of purse-snatch robberies in which one of the victims had died of injuries inflicted by
her assailant, respondent, Roy Allen Stewart, was pointed out to Los Angeles police as the endorser of dividend checks
taken in one of the robberies. At about 7:15 p. m., January 31, 1963, police officers went to Stewart's house and arrested
him. One of the officers asked Stewart if they could search the house, to which he replied, "Go ahead." The search turned
up various items taken from the five robbery victims. At the time of Stewart's arrest, police also arrested Stewart's wife and
three other persons who were visiting him. These four were jailed along with Stewart and were interrogated. Stewart was
taken to the University Station of the Los Angeles Police Department where he was placed in a cell. During the next five
days, police interrogated Stewart on nine different occasions. Except during the first interrogation session, when he was
confronted with an accusing witness, Stewart was isolated with his interrogators.
During the ninth interrogation session, Stewart admitted that he had robbed the deceased and stated that he had not
meant to hurt her. Police then brought Stewart before a magistrate for the first time. Since there was no evidence to
connect them with any crime, the police then released the other four persons arrested with him.
Nothing in the record specifically indicates whether Stewart was or was not advised of his right to remain silent or his right
to counsel. In a number of instances, [384 U.S. 436, 498] however, the interrogating officers were asked to recount
everything that was said during the interrogations. None indicated that Stewart was ever advised of his rights.
Stewart was charged with kidnapping to commit robbery, rape, and murder. At his trial, transcripts of the first interrogation
and the confession at the last interrogation were introduced in evidence. The jury found Stewart guilty of robbery and first
degree murder and fixed the penalty as death. On appeal, the Supreme Court of California reversed. 62 Cal. 2d 571, 400
P.2d 97, 43 Cal. Rptr. 201. It held that under this Court's decision in Escobedo, Stewart should have been advised of his
right to remain silent and of his right to counsel and that it would not presume in the face of a silent record that the police
advised Stewart of his rights. 70
We affirm. 71 In dealing with custodial interrogation, we will not presume that a defendant has been effectively apprised of
his rights and that his privilege against self-incrimination has been adequately safeguarded on a record that does not
show that any warnings have been given or that any effective alternative has been employed. Nor can a knowing and
intelligent waiver of [384 U.S. 436, 499] these rights be assumed on a silent record. Furthermore, Stewart's steadfast
denial of the alleged offenses through eight of the nine interrogations over a period of five days is subject to no other
construction than that he was compelled by persistent interrogation to forgo his Fifth Amendment privilege.
Therefore, in accordance with the foregoing, the judgments of the Supreme Court of Arizona in No. 759, of the New York
Court of Appeals in No. 760, and of the Court of Appeals for the Ninth Circuit in No. 761 are reversed. The judgment of the
Supreme Court of California in No. 584 is affirmed.
It is so ordered.
Footnotes

24
[ Footnote 1 ] Compare United States v. Childress, 347 F.2d 448 (C. A. 7th Cir. 1965), with Collins v. Beto, 348 F.2d 823
(C. A. 5th Cir. 1965). Compare People v. Dorado, 62 Cal. 2d 338, 398 P.2d 361, 42 Cal. Rptr. 169 (1964) with People v.
Hartgraves, 31 Ill. 2d 375, 202 N. E. 2d 33 (1964).
[ Footnote 2 ] See, e. g., Enker & Elsen, Counsel for the Suspect: Massiah v. United States and Escobedo v. Illinois, 49
Minn. L. Rev. 47 (1964); Herman, The Supreme Court and Restrictions on Police Interrogation, 25 Ohio St. L. J. 449
(1964); Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, in Criminal Justice in
Our Time 1 (1965); Dowling, Escobedo and [384 U.S. 436, 441] Beyond: The Need for a Fourteenth Amendment Code of
Criminal Procedure, 56 J. Crim. L., C. & P. S. 143, 156 (1965).
The complex problems also prompted discussions by jurists. Compare Bazelon, Law, Morality, and Civil Liberties, 12 U. C.
L. A. L. Rev. 13 (1964), with Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif. L. Rev. 929 (1965).
[ Footnote 3 ] For example, the Los Angeles Police Chief stated that "If the police are required . . . to . . . establish that the
defendant was apprised of his constitutional guarantees of silence and legal counsel prior to the uttering of any admission
or confession, and that he intelligently waived these guarantees . . . a whole Pandora's box is opened as to under what
circumstances . . . can a defendant intelligently waive these rights. . . . Allegations that modern criminal investigation can
compensate for the lack of a confession or admission in every criminal case is totally absurd!" Parker, 40 L. A. Bar Bull.
603, 607, 642 (1965). His prosecutorial counterpart, District Attorney Younger, stated that "[I]t begins to appear that many
of these seemingly restrictive decisions are going to contribute directly to a more effective, efficient and professional level
of law enforcement." L. A. Times, Oct. 2, 1965, p. 1. The former Police Commissioner of New York, Michael J. Murphy,
stated of Escobedo: "What the Court is doing is akin to requiring one boxer to fight by Marquis of Queensbury rules while
permitting the other to butt, gouge and bite." N. Y. Times, May 14, 1965, p. 39. The former United States Attorney for the
District of Columbia, David C. Acheson, who is presently Special Assistant to the Secretary of the Treasury (for
Enforcement), and directly in charge of the Secret Service and the Bureau of Narcotics, observed that "Prosecution
procedure has, at most, only the most remote causal connection with crime. Changes in court decisions and prosecution
procedure would have about the same effect on the crime rate as an aspirin would have on a tumor of the brain." Quoted
in Herman, supra, n. 2, at 500, n. 270. Other views on the subject in general are collected in Weisberg, Police
Interrogation of Arrested Persons: A Skeptical View, 52 J. Crim. L., C. & P. S. 21 (1961).
[ Footnote 4 ] This is what we meant in Escobedo when we spoke of an investigation which had focused on an accused.
[ Footnote 5 ] See, for example, IV National Commission on Law Observance and Enforcement, Report on Lawlessness
in Law Enforcement (1931) [384 U.S. 436, 446] [Wickersham Report]; Booth, Confessions, and Methods Employed in
Procuring Them, 4 So. Calif. L. Rev. 83 (1930); Kauper, Judicial Examination of the Accused - A Remedy for the Third
Degree, 30 Mich. L. Rev. 1224 (1932). It is significant that instances of third-degree treatment of prisoners almost
invariably took place during the period between arrest and preliminary examination. Wickersham Report, at 169; Hall, The
Law of Arrest in Relation to Contemporary Social Problems, 3 U. Chi. L. Rev. 345, 357 (1936). See also Foote, Law and
Police Practice: Safeguards in the Law of Arrest, 52 Nw. U. L. Rev. 16 (1957).
[ Footnote 6 ] Brown v. Mississippi, 297 U.S. 278 (1936); Chambers v. Florida, 309 U.S. 227 (1940); Canty v.
Alabama, 309 U.S. 629 (1940); White v. Texas, 310 U.S. 530 (1940); Vernon v. Alabama, 313 U.S. 547 (1941); Ward v.
Texas, 316 U.S. 547 (1942); Ashcraft v. Tennessee, 322 U.S. 143 (1944); Malinski v. New York, 324 U.S. 401 (1945);
Leyra v. Denno, 347 U.S. 556 (1954). See also Williams v. United States, 341 U.S. 97 (1951).
[ Footnote 7 ] In addition, see People v. Wakat, 415 Ill. 610, 114 N. E. 2d 706 (1953); Wakat v. Harlib, 253 F.2d 59 (C. A.
7th Cir. 1958) (defendant suffering from broken bones, multiple bruises and injuries sufficiently serious to require eight
months' medical treatment after being manhandled by five policemen); Kier v. State, 213 Md. 556, 132 A. 2d 494 (1957)
(police doctor told accused, who was[384 U.S. 436, 447] strapped to a chair completely nude, that he proposed to take
hair and skin scrapings from anything that looked like blood or sperm from various parts of his body); Bruner v. People,
113 Colo. 194, 156 P.2d 111 (1945) (defendant held in custody over two months, deprived of food for 15 hours, forced to
submit to a lie detector test when he wanted to go to the toilet); People v. Matlock, 51 Cal. 2d 682, 336 P.2d 505 (1959)
(defendant questioned incessantly over an evening's time, made to lie on cold board and to answer questions whenever it
appeared he was getting sleepy). Other cases are documented in American Civil Liberties Union, Illinois Division, Secret
Detention by the Chicago Police (1959); Potts, The Preliminary Examination and "The Third Degree," 2 Baylor L. Rev. 131
(1950); Sterling, Police Interrogation and the Psychology of Confession, 14 J. Pub. L. 25 (1965).
[ Footnote 8 ] The manuals quoted in the text following are the most recent and representative of the texts currently
available. Material of the same nature appears in Kidd, Police Interrogation (1940); Mulbar, Interrogation (1951);
Dienstein, Technics for the Crime Investigator 97-115 (1952). Studies concerning the observed practices of the police
appear in LaFave, Arrest: The Decision To Take a Suspect Into Custody 244-437, 490-521 (1965); LaFave, Detention for
Investigation by the Police: An Analysis of Current Practices, 1962 Wash. U. L. Q. 331; Barrett, Police Practices and the
Law - From Arrest to Release or Charge, 50 Calif. L. Rev. 11 (1962); Sterling, supra, n. 7, at 47-65.
[ Footnote 9 ] The methods described in Inbau & Reid, Criminal Interrogation and Confessions (1962), are a revision and
enlargement of material presented in three prior editions of a predecessor text, Lie Detection and Criminal Interrogation
(3d ed. 1953). The authors and their associates are officers of the Chicago Police Scientific Crime Detection Laboratory
and have had extensive experience in writing, lecturing and speaking to law enforcement authorities over a 20-year
period. They say that the techniques portrayed in their manuals reflect their experiences and are the most effective
psychological stratagems to employ during interrogations. Similarly, the techniques described in O'Hara, Fundamentals of
Criminal Investigation (1956), were gleaned from long service as observer, lecturer in police science, and work as a
federal criminal investigator. All these texts have had rather extensive use among law enforcement agencies and among
students of police science, with total sales and circulation of over 44,000.
[ Footnote 10 ] Inbau & Reid, Criminal Interrogation and Confessions (1962), at 1.

25
[ Footnote 11 ] O'Hara, supra, at 99.
[ Footnote 12 ] Inbau & Reid, supra, at 34-43, 87. For example, in Leyra v. Denno, 347 U.S. 556 (1954), the interrogatorpsychiatrist told the accused, "We do sometimes things that are not right, but in a fit of temper or anger we sometimes do
things we aren't really responsible for," id., at 562, and again, "We know that morally you were just in anger. Morally, you
are not to be condemned," id., at 582.
[ Footnote 13 ] Inbau & Reid, supra, at 43-55.
[ Footnote 14 ] O'Hara, supra, at 112.
[ Footnote 15 ] Inbau & Reid, supra, at 40.
[ Footnote 16 ] Ibid.
[ Footnote 17 ] O'Hara, supra, at 104, Inbau & Reid, supra, at 58-59. See Spano v. New York, 360 U.S. 315 (1959). A
variant on the technique [384 U.S. 436, 453] of creating hostility is one of engendering fear. This is perhaps best
described by the prosecuting attorney in Malinski v. New York, 324 U.S. 401, 407 (1945): "Why this talk about being
undressed? Of course, they had a right to undress him to look for bullet scars, and keep the clothes off him. That was
quite proper police procedure. That is some more psychology - let him sit around with a blanket on him, humiliate him
there for a while; let him sit in the corner, let him think he is going to get a shellacking."
[ Footnote 18 ] O'Hara, supra, at 105-106.
[ Footnote 19 ] Id., at 106.
[ Footnote 20 ] Inbau & Reid, supra, at 111.
[ Footnote 21 ] Ibid.
[ Footnote 22 ] Inbau & Reid, supra, at 112.
[ Footnote 23 ] Inbau & Reid, Lie Detection and Criminal Interrogation 185 (3d ed. 1953).
[ Footnote 24 ] Interrogation procedures may even give rise to a false confession. The most recent conspicuous example
occurred in New York, in 1964, when a Negro of limited intelligence confessed to two brutal murders and a rape which he
had not committed. When this was discovered, the prosecutor was reported as saying: "Call it what you want - brainwashing, hypnosis, fright. They made him give an untrue confession. The only thing I don't believe is that Whitmore was
beaten." N. Y. Times, Jan. 28, 1965, p. 1, col. 5. In two other instances, similar events had occurred. N. Y. Times, Oct. 20,
1964, p. 22, col. 1; N. Y. Times, Aug. 25, 1965, p. 1, col. 1. In general, see Borchard, Convicting the Innocent (1932);
Frank & Frank, Not Guilty (1957).
[ Footnote 25 ] In the fourth confession case decided by the Court in the 1962 Term, Fay v. Noia, 372 U.S. 391 (1963), our
disposition made it unnecessary to delve at length into the facts. The facts of the defendant's case there, however,
paralleled those of his co-defendants, whose confessions were found to have resulted from continuous and coercive
interrogation for 27 hours, with denial of requests for friends or attorney. See United States v. Murphy, 222 F.2d 698 (C. A.
2d Cir. 1955) (Frank, J.); People v. Bonino, 1 N. Y. 2d 752, 135 N. E. 2d 51 (1956).
[ Footnote 26 ] The absurdity of denying that a confession obtained under these circumstances is compelled is aptly
portrayed by an example in Professor [384 U.S. 436, 458] Sutherland's recent article, Crime and Confession, 79 Harv. L.
Rev. 21, 37 (1965):
"Suppose a well-to-do testatrix says she intends to will her property to Elizabeth. John and James want her to bequeath it
to them instead. They capture the testatrix, put her in a carefully designed room, out of touch with everyone but
themselves and their convenient `witnesses,' keep her secluded there for hours while they make insistent demands,
weary her with contradictions of her assertions that she wants to leave her money to Elizabeth, and finally induce her to
execute the will in their favor. Assume that John and James are deeply and correctly convinced that Elizabeth is unworthy
and will make base use of the property if she gets her hands on it, whereas John and James have the noblest and most
righteous intentions. Would any judge of probate accept the will so procured as the `voluntary' act of the testatrix?"
[ Footnote 27 ] Thirteenth century commentators found an analogue to the privilege grounded in the Bible. "To sum up the
matter, the principle that no man is to be declared guilty on his own admission is a divine decree." Maimonides, Mishneh
Torah (Code of Jewish Law), Book of Judges, Laws of the Sanhedrin, c. 18, 6, III Yale Judaica Series 52-53. See also
Lamm, The Fifth Amendment and Its Equivalent in the Halakhah, 5 Judaism 53 (Winter 1956).
[ Footnote 28 ] See Morgan, The Privilege Against Self-Incrimination, 34 Minn. L. Rev. 1, 9-11 (1949); 8 Wigmore,
Evidence 289-295 (McNaughton rev. 1961). See also Lowell, The Judicial Use of Torture, Parts I and II, 11 Harv. L. Rev.
220, 290 (1897).
[ Footnote 29 ] See Pittman, The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America,
21 Va. L. Rev. 763 (1935); Ullmann v. United States, 350 U.S. 422, 445 -449 (1956) (DOUGLAS, J., dissenting).
[ Footnote 30 ] Compare Brown v. Walker, 161 U.S. 591 (1896); Quinn v. United States, 349 U.S. 155(1955).
[ Footnote 31 ] Brief for the United States, p. 28. To the same effect, see Brief for the United States, pp. 40-49, n. 44,
Anderson v. United States, 318 U.S. 350 (1943); Brief for the United States, pp. 17-18, McNabb v. United States, 318 U.S.
332 (1943).

26
[ Footnote 32 ] Our decision today does not indicate in any manner, of course, that these rules can be disregarded. When
federal officials arrest an individual, they must as always comply with the dictates of the congressional legislation and
cases thereunder. See generally, Hogan & Snee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 Geo. L.
J. 1 (1958).
[ Footnote 33 ] The decisions of this Court have guaranteed the same procedural protection for the defendant whether his
confession was used in a federal or state court. It is now axiomatic that the defendant's constitutional rights have been
violated if his conviction is based, in whole or in part, on an involuntary confession, regardless of its truth or falsity. Rogers
v. Richmond, 365 U.S. 534, 544 (1961); Wan v. United States, 266 U.S. 1 (1924). This is so even if there is ample
evidence aside from the confession to support the conviction, e. g., Malinski v. New York, 324 U.S. 401, 404 (1945); Bram
v. United States, 168 U.S. 532, 540 -542 (1897). Both state and federal courts now adhere to trial procedures which seek
to assure a reliable and clear-cut determination of the voluntariness of the confession offered at trial, Jackson v.
Denno, 378 U.S. 368 (1964); United States v. Carignan, 342 U.S. 36, 38 (1951); see also Wilson v. United States, 162
U.S. 613, 624 (1896). Appellate review is exacting, see Haynes v. Washington, 373 U.S. 503 (1963); Blackburn v.
Alabama, 361 U.S. 199 (1960). Whether his conviction was in a federal or state court, the defendant may secure a postconviction hearing based on the alleged involuntary character of his confession, provided he meets the procedural
requirements, Fay v. Noia, 372 U.S. 391 (1963); Townsend v. Sain, 372 U.S. 293 (1963). In addition, see Murphy v.
Waterfront Comm'n, 378 U.S. 52 (1964).
[ Footnote 34 ] See Lisenba v. California, 314 U.S. 219, 241 (1941); Ashcraft v. Tennessee, 322 U.S. 143(1944); Malinski
v. New York, 324 U.S. 401 (1945); Spano v. New York, 360 U.S. 315 (1959); Lynumn v. Illinois, 372 U.S. 528 (1963);
Haynes v. Washington, 373 U.S. 503 (1963).
[ Footnote 35 ] The police also prevented the attorney from consulting with his client. Independent of any other
constitutional proscription, this action constitutes a violation of the Sixth Amendment right to the assistance of counsel and
excludes any statement obtained in its [384 U.S. 436, 466] wake. See People v. Donovan, 13 N. Y. 2d 148, 193 N. E. 2d
628, 243 N. Y. S. 2d 841 (1963) (Fuld, J.).
[ Footnote 36 ] In re Groban, 352 U.S. 330, 340 -352 (1957) (BLACK, J., dissenting); Note, 73 Yale L. J. 1000, 1048-1051
(1964); Comment, 31 U. Chi. L. Rev. 313, 320 (1964) and authorities cited.
[ Footnote 37 ] See p. 454, supra. Lord Devlin has commented:
"It is probable that even today, when there is much less ignorance about these matters than formerly, there is still a
general belief that you must answer all questions put to you by a policeman, or at least that it will be the worse for you if
you do not." Devlin, The Criminal Prosecution in England 32 (1958).
In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege
when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute
or claimed his privilege in the face of accusation. Cf. Griffin v. California, 380 U.S. 609 (1965); Malloy v. Hogan, 378 U.S.
1, 8 (1964); Comment, 31 U. Chi. L. Rev. 556 (1964); Developments in the Law - Confessions, 79 Harv. L. Rev. 935,
1041-1044 (1966). See also Bram v. United States, 168 U.S. 532, 562 (1897).
[ Footnote 38 ] Cf. Betts v. Brady, 316 U.S. 455 (1942), and the recurrent inquiry into special circumstances it
necessitated. See generally, Kamisar, Betts v. Brady Twenty Years Later: The Right to Counsel and Due Process Values,
61 Mich. L. Rev. 219 (1962).
[ Footnote 39 ] See Herman, The Supreme Court and Restrictions on Police Interrogation, 25 Ohio St. L. J. 449, 480
(1964).
[ Footnote 40 ] Estimates of 50-90% indigency among felony defendants have been reported. Pollock, Equal Justice in
Practice, 45 Minn. L. Rev. 737, 738-739 (1961); Birzon, Kasanof & Forma, The Right to Counsel and the Indigent Accused
in Courts of Criminal Jurisdiction in New York State, 14 Buffalo L. Rev. 428, 433 (1965).
[ Footnote 41 ] See Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, in Criminal
Justice in Our Time 1, 64-81 (1965). As was stated in the Report of the Attorney General's Committee on Poverty and the
Administration of Federal Criminal Justice 9 (1963):
"When government chooses to exert its powers in the criminal area, its obligation is surely no less than that of taking
reasonable measures to eliminate those factors that are irrelevant to just administration of the law but which,
nevertheless, may occasionally affect determinations of the accused's liability or penalty. While government [384 U.S. 436,
473] may not be required to relieve the accused of his poverty, it may properly be required to minimize the influence of
poverty on its administration of justice."
[ Footnote 42 ] Cf. United States ex rel. Brown v. Fay, 242 F. Supp. 273, 277 (D.C. S. D. N. Y. 1965); People v. Witenski,
15 N. Y. 2d 392, 207 N. E. 2d 358, 259 N. Y. S. 2d 413 (1965).
[ Footnote 43 ] While a warning that the indigent may have counsel appointed need not be given to the person who is
known to have an attorney or is known to have ample funds to secure one, the expedient of giving a warning is too simple
and the rights involved too important to engage in ex post facto inquiries into financial ability when there is any doubt at all
on that score.
[ Footnote 44 ] If an individual indicates his desire to remain silent, but has an attorney present, there may be some
circumstances in which further questioning would be permissible. In the absence of evidence of overbearing, statements
then made in the presence of counsel might be free of the compelling influence of the interrogation process and might
fairly be construed as a waiver of the privilege for purposes of these statements.
[ Footnote 45 ] Although this Court held in Rogers v. United States, 340 U.S. 367 (1951), over strong dissent, that a
witness before a grand jury may not in certain circumstances decide to answer some questions and then refuse to answer

27
others, that decision has no application to the interrogation situation we deal with today. No legislative or judicial factfinding authority is involved here, nor is there a possibility that the individual might make self-serving statements of which
he could make use at trial while refusing to answer incriminating statements.
[ Footnote 46 ] The distinction and its significance has been aptly described in the opinion of a Scottish court:
"In former times such questioning, if undertaken, would be conducted by police officers visiting the house or place of
business of the suspect and there questioning him, probably in the presence of a relation or friend. However convenient
the modern practice may be, it must normally create a situation very unfavorable to the suspect." Chalmers v. H. M.
Advocate, 1954. Sess. Cas. 66, 78 (J. C.).
[ Footnote 47 ] See People v. Dorado, 62 Cal. 2d 338, 354, 398 P.2d 361, 371, 42 Cal. Rptr. 169, 179 (1965).
[ Footnote 48 ] In accordance with our holdings today and in Escobedo v. Illinois, 378 U.S. 478, 492 , Crooker v.
California, 357 U.S. 433 (1958) and Cicenia v. Lagay, 357 U.S. 504 (1958) are not to be followed.
[ Footnote 49 ] In quoting the above from the dissenting opinion of Mr. Justice Brandeis we, of course, do not intend to
pass on the constitutional questions involved in the Olmstead case.
[ Footnote 50 ] Schaefer, Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1, 26 (1956).
[ Footnote 51 ] Miranda, Vignera, and Westover were identified by eyewitnesses. Marked bills from the bank robbed were
found in Westover's car. Articles stolen from the victim as well as from several other robbery victims were found in
Stewart's home at the outset of the investigation.
[ Footnote 52 ] Dealing as we do here with constitutional standards in relation to statements made, the existence of
independent corroborating evidence produced at trial is, of course, irrelevant to our decisions. Haynes v. Washington, 373
U.S. 503, 518 -519 (1963); Lynumn v. [384 U.S. 436, 482] Illinois, 372 U.S. 528, 537 -538 (1963); Rogers v.
Richmond, 365 U.S. 534, 541 (1961); Blackburn v. Alabama, 361 U.S. 199, 206 (1960).
[ Footnote 53 ] See, e. g., Report and Recommendations of the [District of Columbia] Commissioners' Committee on
Police Arrests for Investigation (1962); American Civil Liberties Union, Secret Detention by the Chicago Police (1959). An
extreme example of this practice occurred in the District of Columbia in 1958. Seeking three "stocky" young Negroes who
had robbed a restaurant, police rounded up 90 persons of that general description. Sixty-three were held overnight [384
U.S. 436, 483] before being released for lack of evidence. A man not among the 90 arrested was ultimately charged with
the crime. Washington Daily News, January 21, 1958, p. 5, col. 1; Hearings before a Subcommittee of the Senate
Judiciary Committee on H. R. 11477, S. 2970, S. 3325, and S. 3355, 85th Cong., 2d Sess. (July 1958), pp. 40, 78.
[ Footnote 54 ] In 1952, J. Edgar Hoover, Director of the Federal Bureau of Investigation, stated:
"Law enforcement, however, in defeating the criminal, must maintain inviolate the historic liberties of the individual. To turn
back the criminal, yet, by so doing, destroy the dignity of the individual, would be a hollow victory.
.....
"We can have the Constitution, the best laws in the land, and the most honest reviews by courts - but unless the law
enforcement profession is steeped in the democratic tradition, maintains the highest in ethics, and makes its work a
career of honor, civil liberties will continually - and without end - be violated. . . . The best protection of civil liberties is an
alert, intelligent and honest law enforcement agency. There can be no alternative.
.....
". . . Special Agents are taught that any suspect or arrested person, at the outset of an interview, must be advised that he
is not required to make a statement and that any statement given can be used against him in court. Moreover, the
individual must be informed that, if he desires, he may obtain the services of an attorney of his own choice."
Hoover, Civil Liberties and Law Enforcement: The Role of the FBI, 37 Iowa L. Rev. 175, 177-182 (1952).
[ Footnote 55 ] We agree that the interviewing agent must exercise his judgment in determining whether the individual
waives his right to counsel. Because of the constitutional basis of the right, however, the standard for waiver is necessarily
high. And, of course, the ultimate responsibility for resolving this constitutional question lies with the courts.
[ Footnote 56 ] Among the crimes within the enforcement jurisdiction of the FBI are kidnapping, 18 U.S.C. 1201 (1964
ed.), white slavery, 18 U.S.C. 2421-2423 (1964 ed.), bank robbery, 18 U.S.C. 2113 (1964 ed.), interstate transportation
and sale of stolen property, 18 U.S.C. 2311-2317 (1964 ed.), all manner of conspiracies, 18 U.S.C. 371 (1964 ed.), and
violations of civil rights, 18 U.S.C. 241-242 (1964 ed.). See also 18 U.S.C. 1114 (1964 ed.) (murder of officer or employee
of the United States).
[ Footnote 57 ] 1964. Crim. L. Rev., at 166-170. These Rules provide in part:
"II. As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has
committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions, or
further questions, relating to that offence.
"The caution shall be in the following terms:
"`You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in
evidence.'
"When after being cautioned a person is being questioned, or elects to make a statement, a record shall be kept of the
time and place at which any such questioning or statement began and ended and of the persons present.
.....
"III. . . .
.....
"(b) It is only in exceptional cases that questions relating to the offence should be put to the accused person after he has
been charged or informed that he may be prosecuted.

28
.....
"IV. All written statements made after caution shall be taken in the following manner:
"(a) If a person says that he wants to make a statement he shall be told that it is intended to make a written record of what
he says.
"He shall always be asked whether he wishes to write down himself what he wants to say; if he says that he cannot write
or that he would like someone to write it for him, a police officer may offer to write the statement for him. . . .
"(b) Any person writing his own statement shall be allowed to do so without any prompting as distinct from indicating to
him what matters are material.
.....
"(d) Whenever a police officer writes the statement, he shall take down the exact words spoken by the person making the
statement, without putting any questions other than such as may be needed to [384 U.S. 436, 488] make the statement
coherent, intelligible and relevant to the material matters: he shall not prompt him."
The prior Rules appear in Devlin, The Criminal Prosecution in England 137-141 (1958).
Despite suggestions of some laxity in enforcement of the Rules and despite the fact some discretion as to admissibility is
invested in the trial judge, the Rules are a significant influence in the English criminal law enforcement system. See, e. g.,
1964. Crim. L. Rev., at 182; and articles collected in 1960. Crim. L. Rev., at 298-356.
[ Footnote 58 ] The introduction to the Judges' Rules states in part:
"These Rules do not affect the principles
.....
"(c) That every person at any stage of an investigation should be able to communicate and to consult privately with a
solicitor. This is so even if he is in custody provided that in such a case no unreasonable delay or hindrance is caused to
the processes of investigation or the administration of justice by his doing so . . . ." 1964. Crim. L. Rev., at 166-167.
[ Footnote 59 ] As stated by the Lord Justice General in Chalmers v. H. M. Advocate, 1954. Sess. Cas. 66, 78 (J. C.):
"The theory of our law is that at the stage of initial investigation the police may question anyone with a view to acquiring
information which may lead to the detection of the criminal; but that, when the stage has been reached at which suspicion,
or more than suspicion, has in their view centred upon some person as the likely perpetrator of the crime, further
interrogation of that person becomes very dangerous, and, if carried too far, e. g., to the point of extracting a confession
by what amounts to cross-examination, the evidence of that confession will almost certainly be excluded. Once the
accused has been apprehended and charged he has the statutory right to a private interview with a solicitor and to be
brought before a magistrate with all convenient speed so that he may, if so advised, emit a declaration in presence of his
solicitor under conditions which safeguard him against prejudice."
[ Footnote 60 ] "No confession made to a police officer shall be proved as against a person accused of any offence."
Indian Evidence Act 25.
"No confession made by any person whilst he is in the custody of a police officer unless it be made in the immediate
presence of a Magistrate, shall be proved as against such person." Indian Evidence Act 26. See 1 Ramaswami &
Rajagopalan, Law of Evidence in India 553-569 (1962). To avoid any continuing effect of police pressure or inducement,
the Indian Supreme Court has invalidated a confession made shortly after police brought a suspect before a magistrate,
suggesting: "[I]t would, we think, be reasonable to insist upon giving an accused person at least 24 hours to decide
whether or not he should make a confession." Sarwan Singh v. State of Punjab, 44 All India Rep. 1957, Sup. Ct. 637, 644.
[ Footnote 61 ] I Legislative Enactments of Ceylon 211 (1958).
[ Footnote 62 ] 10 U.S.C. 831 (b) (1964 ed.).
[ Footnote 63 ] United States v. Rose, 24 CMR 251 (1957); United States v. Gunnels, 23 CMR 354 (1957).
[ Footnote 64 ] Although no constitution existed at the time confessions were excluded by rule of evidence in 1872, India
now has a written constitution which includes the provision that "No person accused of any offence shall be compelled to
be a witness against himself." Constitution of India, Article 20 (3). See Tope, The Constitution of India 63-67 (1960).
[ Footnote 65 ] Brief for United States in No. 761, Westover v. United States, pp. 44-47; Brief for the State of New York as
amicus curiae, pp. 35-39. See also Brief for the National District Attorneys Association as amicus curiae, pp. 23-26.
[ Footnote 66 ] Miranda was also convicted in a separate trial on an unrelated robbery charge not presented here for
review. A statement introduced at that trial was obtained from Miranda during the same interrogation which resulted in the
confession involved here. At the robbery trial, one officer testified that during the interrogation he did not tell Miranda that
anything he said would be held against him or that he could consult with an attorney. The other officer stated that they had
both told Miranda that anything he said would be used against him and that he was not required by law to tell them
anything.
[ Footnote 67 ] One of the officers testified that he read this paragraph to Miranda. Apparently, however, he did not do so
until after Miranda had confessed orally.
[ Footnote 68 ] Vignera thereafter successfully attacked the validity of one of the prior convictions, Vignera v. Wilkins, Civ.
9901 (D.C. W. D. N. Y. Dec. 31, 1961) (unreported), but was then resentenced as a second-felony offender to the same
term of imprisonment as the original sentence. R. 31-33.
[ Footnote 69 ] The failure of defense counsel to object to the introduction of the confession at trial, noted by the Court of
Appeals and emphasized by the Solicitor General, does not preclude our consideration of the issue. Since the trial was
held prior to our decision in Escobedo and, of course, prior to our decision today making the [384 U.S. 436,
496] objection available, the failure to object at trial does not constitute a waiver of the claim. See, e. g., United States ex

29
rel. Angelet v. Fay, 333 F.2d 12, 16 (C. A. 2d Cir. 1964), aff'd, 381 U.S. 654 (1965). Cf. Ziffrin, Inc. v. United States, 318
U.S. 73, 78(1943).
[ Footnote 70 ] Because of this disposition of the case, the California Supreme Court did not reach the claims that the
confession was coerced by police threats to hold his ailing wife in custody until he confessed, that there was no hearing
as required by Jackson v. Denno, 378 U.S. 368 (1964), and that the trial judge gave an instruction condemned by the
California Supreme Court's decision in People v. Morse, 60 Cal. 2d 631, 388 P.2d 33, 36 Cal. Rptr. 201 (1964).
[ Footnote 71 ] After certiorari was granted in this case, respondent moved to dismiss on the ground that there was no
final judgment from which the State could appeal since the judgment below directed that he be retried. In the event
respondent was successful in obtaining an acquittal on retrial, however, under California law the State would have no
appeal. Satisfied that in these circumstances the decision below constituted a final judgment under 28 U.S.C. 1257 (3)
(1964 ed.), we denied the motion. 383 U.S. 903 .
MR. JUSTICE CLARK, dissenting in Nos. 759, 760, and 761, and concurring in the result in No. 584.
It is with regret that I find it necessary to write in these cases. However, I am unable to join the majority because its
opinion goes too far on too little, while my dissenting brethren do not go quite far enough. Nor can I join in the Court's
criticism of the present practices of police and investigatory agencies as to custodial interrogation. The materials it refers
to as "police manuals" 1 are, as I read them, merely writings in this field by professors and some police officers. Not one is
shown by the record here to be the official manual of any police department, much less in universal use in crime detection.
Moreover, the examples of police brutality mentioned by the Court 2 are rare exceptions to the thousands of cases [384
U.S. 436, 500] that appear every year in the law reports. The police agencies - all the way from municipal and state
forces to the federal bureaus - are responsible for law enforcement and public safety in this country. I am proud of their
efforts, which in my view are not fairly characterized by the Court's opinion.
I.
The ipse dixit of the majority has no support in our cases. Indeed, the Court admits that "we might not find the defendants'
statements [here] to have been involuntary in traditional terms." Ante, p. 457. In short, the Court has added more to the
requirements that the accused is entitled to consult with his lawyer and that he must be given the traditional warning that
he may remain silent and that anything that he says may be used against him. Escobedo v. Illinois, 378 U.S. 478, 490 491 (1964). Now, the Court fashions a constitutional rule that the police may engage in no custodial interrogation without
additionally advising the accused that he has a right under the Fifth Amendment to the presence of counsel during
interrogation and that, if he is without funds, counsel will be furnished him. When at any point during an interrogation the
accused seeks affirmatively or impliedly to invoke his rights to silence or counsel, interrogation must be forgone or
postponed. The Court further holds that failure to follow the new procedures requires inexorably the exclusion of any
statement by the accused, as well as the fruits thereof. Such a strict constitutional specific inserted at the nerve center of
crime detection may well kill the patient. 3 [384 U.S. 436, 501] Since there is at this time a paucity of information and an
almost total lack of empirical knowledge on the practical operation of requirements truly comparable to those announced
by the majority, I would be more restrained lest we go too far too fast.
II.
Custodial interrogation has long been recognized as "undoubtedly an essential tool in effective law enforcement." Haynes
v. Washington, 373 U.S. 503, 515 (1963). Recognition of this fact should put us on guard against the promulgation of
doctrinaire rules. Especially is this true where the Court finds that "the Constitution has prescribed" its holding and where
the light of our past cases, from Hopt v. Utah,110 U.S. 574 , (1884), down to Haynes v. Washington, supra, is to [384 U.S.
436, 502] the contrary. Indeed, even in Escobedo the Court never hinted that an affirmative "waiver" was a prerequisite
to questioning; that the burden of proof as to waiver was on the prosecution; that the presence of counsel - absent a
waiver - during interrogation was required; that a waiver can be withdrawn at the will of the accused; that counsel must be
furnished during an accusatory stage to those unable to pay; nor that admissions and exculpatory statements are
"confessions." To require all those things at one gulp should cause the Court to choke over more cases than Crooker v.
California, 357 U.S. 433 (1958), and Cicenia v. Lagay, 357 U.S. 504 (1958), which it expressly overrules today.
The rule prior to today - as Mr. Justice Goldberg, the author of the Court's opinion in Escobedo, stated it in Haynes v.
Washington - depended upon "a totality of circumstances evidencing an involuntary . . . admission of guilt." 373 U.S., at
514 . And he concluded:
"Of course, detection and solution of crime is, at best, a difficult and arduous task requiring determination and persistence
on the part of all responsible officers charged with the duty of law enforcement. And, certainly, we do not mean to suggest
that all interrogation of witnesses and suspects is impermissible. Such questioning is undoubtedly an essential tool in
effective law enforcement. The line between proper and permissible police conduct and techniques and methods offensive
to due process is, at best, a difficult one to draw, particularly in cases such as this where it is necessary to make fine
judgments as to the effect of psychologically coercive pressures and inducements on the mind and will of an accused. . . .
We are here impelled to the conclusion, from all of the facts presented, that the bounds of due process have been
exceeded." Id., at 514-515. [384 U.S. 436, 503]
III.
I would continue to follow that rule. Under the "totality of circumstances" rule of which my Brother Goldberg spoke in
Haynes, I would consider in each case whether the police officer prior to custodial interrogation added the warning that the
suspect might have counsel present at the interrogation and, further, that a court would appoint one at his request if he
was too poor to employ counsel. In the absence of warnings, the burden would be on the State to prove that counsel was
knowingly and intelligently waived or that in the totality of the circumstances, including the failure to give the necessary
warnings, the confession was clearly voluntary.

30
Rather than employing the arbitrary Fifth Amendment rule 4 which the Court lays down I would follow the more pliable
dictates of the Due Process Clauses of the Fifth and Fourteenth Amendments which we are accustomed to administering
and which we know from our cases are effective instruments in protecting persons in police custody. In this way we would
not be acting in the dark nor in one full sweep changing the traditional rules of custodial interrogation which this Court has
for so long recognized as a justifiable and proper tool in balancing individual rights against the rights of society. It will be
soon enough to go further when we are able to appraise with somewhat better accuracy the effect of such a holding.
I would affirm the convictions in Miranda v. Arizona, No. 759; Vignera v. New York, No. 760; and Westover v. United
States, No. 761. In each of those cases I find from the circumstances no warrant for reversal. In [384 U.S. 436,
504] California v. Stewart, No. 584, I would dismiss the writ of certiorari for want of a final judgment, 28 U.S.C. 1257 (3)
(1964 ed.); but if the merits are to be reached I would affirm on the ground that the State failed to fulfill its burden, in the
absence of a showing that appropriate warnings were given, of proving a waiver or a totality of circumstances showing
voluntariness. Should there be a retrial, I would leave the State free to attempt to prove these elements.
[ Footnote 1 ] E. g., Inbau & Reid, Criminal Interrogation and Confessions (1962); O'Hara, Fundamentals of Criminal
Investigation (1956); Dienstein, Technics for the Crime Investigator (1952); Mulbar, Interrogation (1951); Kidd, Police
Interrogation (1940).
[ Footnote 2 ] As developed by my Brother HARLAN, post, pp. 506-514, such cases, with the exception of the longdiscredited decision in Bram v. United States, 168 U.S. 532 (1897), were adequately treated in terms of due process.
[ Footnote 3 ] The Court points to England, Scotland, Ceylon and India as having equally rigid rules. As my Brother
HARLAN points out, post, pp. 521-523, the Court is mistaken in this regard, for it overlooks counterbalancing prosecutorial
advantages. Moreover, the requirements of the Federal Bureau of Investigation do not appear from the Solicitor General's
letter, ante, pp. 484-486, to be as strict as [384 U.S. 436, 501] those imposed today in at least two respects: (1) The offer
of counsel is articulated only as "a right to counsel"; nothing is said about a right to have counsel present at the custodial
interrogation. (See also the examples cited by the Solicitor General, Westover v. United States, 342 F.2d 684, 685 (1965)
("right to consult counsel"); Jackson v. United States, 337 F.2d 136, 138 (1964) (accused "entitled to an attorney").)
Indeed, the practice is that whenever the suspect "decides that he wishes to consult with counsel before making a
statement, the interview is terminated at that point . . . . When counsel appears in person, he is permitted to confer with
his client in private." This clearly indicates that the FBI does not warn that counsel may be present during custodial
interrogation. (2) The Solicitor General's letter states: "[T]hose who have been arrested for an offense under FBI
jurisdiction, or whose arrest is contemplated following the interview, [are advised] of a right to free counsel if they are
unable to pay, and the availability of such counsel from the Judge." So phrased, this warning does not indicate that the
agent will secure counsel. Rather, the statement may well be interpreted by the suspect to mean that the burden is placed
upon himself and that he may have counsel appointed only when brought before the judge or at trial - but not at custodial
interrogation. As I view the FBI practice, it is not as broad as the one laid down today by the Court.
[ Footnote 4 ] In my view there is "no significant support" in our cases for the holding of the Court today that the Fifth
Amendment privilege, in effect, forbids custodial interrogation. For a discussion of this point see the dissenting opinion of
my Brother WHITE, post, pp. 526-531.
MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART and MR. JUSTICE WHITE join, dissenting.
I believe the decision of the Court represents poor constitutional law and entails harmful consequences for the country at
large. How serious these consequences may prove to be only time can tell. But the basic flaws in the Court's justification
seem to me readily apparent now once all sides of the problem are considered.
I. INTRODUCTION.
At the outset, it is well to note exactly what is required by the Court's new constitutional code of rules for confessions. The
foremost requirement, upon which later admissibility of a confession depends, is that a fourfold warning be given to a
person in custody before he is questioned, namely, that he has a right to remain silent, that anything he says may be used
against him, that he has a right to have present an attorney during the questioning, and that if indigent he has a right to a
lawyer without charge. To forgo these rights, some affirmative statement of rejection is seemingly required, and threats,
tricks, or cajolings to obtain this waiver are forbidden. If before or during questioning the suspect seeks to invoke his right
to remain silent, interrogation must be forgone or cease; a request for counsel [384 U.S. 436, 505] brings about the
same result until a lawyer is procured. Finally, there are a miscellany of minor directives, for example, the burden of proof
of waiver is on the State, admissions and exculpatory statements are treated just like confessions, withdrawal of a waiver
is always permitted, and so forth. 1
While the fine points of this scheme are far less clear than the Court admits, the tenor is quite apparent. The new rules are
not designed to guard against police brutality or other unmistakably banned forms of coercion. Those who use thirddegree tactics and deny them in court are equally able and destined to lie as skillfully about warnings and waivers. Rather,
the thrust of the new rules is to negate all pressures, to reinforce the nervous or ignorant suspect, and ultimately to
discourage any confession at all. The aim in short is toward "voluntariness" in a utopian sense, or to view it from a
different angle, voluntariness with a vengeance.
To incorporate this notion into the Constitution requires a strained reading of history and precedent and a disregard of the
very pragmatic concerns that alone may on occasion justify such strains. I believe that reasoned examination will show
that the Due Process Clauses provide an adequate tool for coping with confessions and that, even if the Fifth Amendment
privilege against self-incrimination be invoked, its precedents taken as a whole do not sustain the present rules. Viewed
as a choice based on pure policy, these new rules prove to be a highly debatable, if not one-sided, appraisal of the
competing interests, imposed over widespread objection, at the very time when judicial restraint is most called for by the
circumstances. [384 U.S. 436, 506]
II. CONSTITUTIONAL PREMISES.

31
It is most fitting to begin an inquiry into the constitutional precedents by surveying the limits on confessions the Court has
evolved under the Due Process Clause of the Fourteenth Amendment. This is so because these cases show that there
exists a workable and effective means of dealing with confessions in a judicial manner; because the cases are the
baseline from which the Court now departs and so serve to measure the actual as opposed to the professed distance it
travels; and because examination of them helps reveal how the Court has coasted into its present position.
The earliest confession cases in this Court emerged from federal prosecutions and were settled on a nonconstitutional
basis, the Court adopting the common-law rule that the absence of inducements, promises, and threats made a
confession voluntary and admissible. Hopt v. Utah, 110 U.S. 574 ; Pierce v. United States, 160 U.S. 355 . While a later
case said the Fifth Amendment privilege controlled admissibility, this proposition was not itself developed in subsequent
decisions. 2 The Court did, however, heighten the test of admissibility in federal trials to one of voluntariness "in fact," Wan
v. [384 U.S. 436, 507] United States, 266 U.S. 1, 14 (quoted, ante, p. 462), and then by and large left federal judges to
apply the same standards the Court began to derive in a string of state court cases.
This new line of decisions, testing admissibility by the Due Process Clause, began in 1936 with Brown v. Mississippi, 297
U.S. 278 , and must now embrace somewhat more than 30 full opinions of the Court. 3While the voluntariness rubric was
repeated in many instances, e. g., Lyons v. Oklahoma, 322 U.S. 596 , the Court never pinned it down to a single meaning
but on the contrary infused it with a number of different values. To travel quickly over the main themes, there was an initial
emphasis on reliability, e. g., Ward v. Texas, 316 U.S. 547 , supplemented by concern over the legality and fairness of the
police practices, e. g., Ashcraft v. Tennessee, 322 U.S. 143 , in an "accusatorial" system of law enforcement, Watts v.
Indiana, 338 U.S. 49, 54 , and eventually by close attention to the individual's state of mind and capacity for effective
choice, e. g., Gallegos v. Colorado, 370 U.S. 49 . The outcome was a continuing re-evaluation on the facts of each case of
how much pressure on the suspect was permissible. 4 [384 U.S. 436, 508]
Among the criteria often taken into account were threats or imminent danger, e. g., Payne v. Arkansas,356 U.S. 560 ,
physical deprivations such as lack of sleep or food, e. g., Reck v. Pate, 367 U.S. 433 , repeated or extended interrogation,
e. g., Chambers v. Florida, 309 U.S. 227 , limits on access to counsel or friends, Crooker v. California, 357 U.S. 433 ;
Cicenia v. Lagay, 357 U.S. 504 , length and illegality of detention under state law, e. g., Haynes v. Washington, 373 U.S.
503 , and individual weakness or incapacities, Lynumn v. Illinois, 372 U.S. 528 . Apart from direct physical coercion,
however, no single default or fixed combination of defaults guaranteed exclusion, and synopses of the cases would serve
little use because the overall gauge has been steadily changing, usually in the direction of restricting admissibility. But to
mark just what point had been reached before the Court jumped the rails in Escobedo v. Illinois, 378 U.S. 478 , it is worth
capsulizing the then-recent case of Haynes v. Washington, 373 U.S. 503 . There, Haynes had been held some 16 or more
hours in violation of state law before signing the disputed confession, had received no warnings of any kind, and despite
requests had been refused access to his wife or to counsel, the police indicating that access would be allowed after a
confession. Emphasizing especially this last inducement and rejecting some contrary indicia of voluntariness, the Court in
a 5-to-4 decision held the confession inadmissible.
There are several relevant lessons to be drawn from this constitutional history. The first is that with over 25 years of
precedent the Court has developed an elaborate, sophisticated, and sensitive approach to admissibility of confessions. It
is "judicial" in its treatment of one case at a time, see Culombe v. Connecticut, 367 U.S. 568, 635 (concurring opinion of
THE CHIEF JUSTICE), flexible in its ability to respond to the endless mutations of fact presented, and ever more familiar
to the lower courts. [384 U.S. 436, 509] Of course, strict certainty is not obtained in this developing process, but this is
often so with constitutional principles, and disagreement is usually confined to that borderland of close cases where it
matters least.
The second point is that in practice and from time to time in principle, the Court has given ample recognition to society's
interest in suspect questioning as an instrument of law enforcement. Cases countenancing quite significant pressures can
be cited without difficulty, 5 and the lower courts may often have been yet more tolerant. Of course the limitations imposed
today were rejected by necessary implication in case after case, the right to warnings having been explicitly rebuffed in
this Court many years ago. Powers v. United States, 223 U.S. 303 ; Wilson v. United States, 162 U.S. 613 . As recently as
Haynes v. Washington, 373 U.S. 503, 515 , the Court openly acknowledged that questioning of witnesses and suspects "is
undoubtedly an essential tool in effective law enforcement." Accord, Crooker v. California, 357 U.S. 433, 441 .
Finally, the cases disclose that the language in many of the opinions overstates the actual course of decision. It has been
said, for example, that an admissible confession must be made by the suspect "in the unfettered exercise of his own will,"
Malloy v. Hogan, 378 U.S. 1, 8 , and that "a prisoner is not `to be made the deluded instrument of his own conviction,'"
Culombe v. Connecticut, 367 U.S. 568, 581(Frankfurter, J., announcing the Court's judgment and an opinion). Though
often repeated, such principles are rarely observed in full measure. Even the word "voluntary" may be deemed
somewhat[384 U.S. 436, 510] misleading, especially when one considers many of the confessions that have been
brought under its umbrella. See, e. g., supra, n. 5. The tendency to overstate may be laid in part to the flagrant facts often
before the Court; but in any event one must recognize how it has tempered attitudes and lent some color of authority to
the approach now taken by the Court.
I turn now to the Court's asserted reliance on the Fifth Amendment, an approach which I frankly regard as a trompe l'oeil.
The Court's opinion in my view reveals no adequate basis for extending the Fifth Amendment's privilege against selfincrimination to the police station. Far more important, it fails to show that the Court's new rules are well supported, let
alone compelled, by Fifth Amendment precedents. Instead, the new rules actually derive from quotation and analogy
drawn from precedents under the Sixth Amendment, which should properly have no bearing on police interrogation.
The Court's opening contention, that the Fifth Amendment governs police station confessions, is perhaps not an
impermissible extension of the law but it has little to commend itself in the present circumstances. Historically, the privilege
against self-incrimination did not bear at all on the use of extra-legal confessions, for which distinct standards evolved;
indeed, "the history of the two principles is wide apart, differing by one hundred years in origin, and derived through
separate lines of precedents . . . ." 8 Wigmore, Evidence 2266, at 401 (McNaughton rev. 1961). Practice under the two
doctrines has also differed in a number of important respects. 6 [384 U.S. 436, 511] Even those who would readily

32
enlarge the privilege must concede some linguistic difficulties since the Fifth Amendment in terms proscribes only
compelling any person "in any criminal case to be a witness against himself." Cf. Kamisar, Equal Justice in the
Gatehouses and Mansions of American Criminal Procedure, in Criminal Justice in Our Time 1, 25-26 (1965).
Though weighty, I do not say these points and similar ones are conclusive, for, as the Court reiterates, the privilege
embodies basic principles always capable of expansion. 7 Certainly the privilege does represent a protective concern for
the accused and an emphasis upon accusatorial rather than inquisitorial values in law enforcement, although this is
similarly true of other limitations such as the grand jury requirement and the reasonable doubt standard. Accusatorial
values, however, have openly been absorbed into the due process standard governing confessions; this indeed is why at
present "the kinship of the two rules [governing confessions and self-incrimination] is too apparent for denial." McCormick,
Evidence 155 (1954). Since extension of the general principle has already occurred, to insist that the privilege applies as
such serves only to carry over inapposite historical details and engaging rhetoric and to obscure the policy choices to be
made in regulating confessions.
Having decided that the Fifth Amendment privilege does apply in the police station, the Court reveals that the privilege
imposes more exacting restrictions than does the Fourteenth Amendment's voluntariness test. 8 [384 U.S. 436, 512] It
then emerges from a discussion of Escobedo that the Fifth Amendment requires for an admissible confession that it be
given by one distinctly aware of his right not to speak and shielded from "the compelling atmosphere" of interrogation. See
ante, pp. 465-466. From these key premises, the Court finally develops the safeguards of warning, counsel, and so forth. I
do not believe these premises are sustained by precedents under the Fifth Amendment. 9
The more important premise is that pressure on the suspect must be eliminated though it be only the subtle influence of
the atmosphere and surroundings. The Fifth Amendment, however, has never been thought to forbid all pressure to
incriminate one's self in the situations covered by it. On the contrary, it has been held that failure to incriminate one's self
can result in denial of removal of one's case from state to federal court, Maryland v. Soper, 270 U.S. 9 ; in refusal of a
military commission, Orloff v. Willoughby, 345 U.S. 83 ; in denial of a discharge in bankruptcy, Kaufman v. Hurwitz, 176
F.2d 210; and in numerous other adverse consequences. See 8 Wigmore, Evidence 2272, at 441-444, n. 18 (McNaughton
rev. 1961); Maguire, Evidence of Guilt 2.062 (1959). This is not to say that short of jail or torture any sanction is
permissible in any case; policy and history alike may impose sharp limits. See, e. g., [384 U.S. 436, 513] Griffin v.
California, 380 U.S. 609 . However, the Court's unspoken assumption that any pressure violates the privilege is not
supported by the precedents and it has failed to show why the Fifth Amendment prohibits that relatively mild pressure the
Due Process Clause permits.
The Court appears similarly wrong in thinking that precise knowledge of one's rights is a settled prerequisite under the
Fifth Amendment to the loss of its protections. A number of lower federal court cases have held that grand jury witnesses
need not always be warned of their privilege, e. g., United States v. Scully, 225 F.2d 113, 116, and Wigmore states this to
be the better rule for trial witnesses. See 8 Wigmore, Evidence 2269 (McNaughton rev. 1961). Cf. Henry v.
Mississippi, 379 U.S. 443, 451 -452 (waiver of constitutional rights by counsel despite defendant's ignorance held
allowable). No Fifth Amendment precedent is cited for the Court's contrary view. There might of course be reasons apart
from Fifth Amendment precedent for requiring warning or any other safeguard on questioning but that is a different matter
entirely. See infra, pp. 516-517.
A closing word must be said about the Assistance of Counsel Clause of the Sixth Amendment, which is never expressly
relied on by the Court but whose judicial precedents turn out to be linchpins of the confession rules announced today. To
support its requirement of a knowing and intelligent waiver, the Court cites Johnson v. Zerbst, 304 U.S. 458 , ante, p. 475;
appointment of counsel for the indigent suspect is tied to Gideon v. Wainwright, 372 U.S. 335 , and Douglas v.
California, 372 U.S. 353 , ante, p. 473; the silent-record doctrine is borrowed from Carnley v. Cochran, 369 U.S. 506 ,
ante, p. 475, as is the right to an express offer of counsel, ante, p. 471. All these cases imparting glosses to the Sixth
Amendment concerned counsel at trial or on appeal. While the Court finds no pertinent difference between judicial
proceedings and police interrogation, I believe [384 U.S. 436, 514] the differences are so vast as to disqualify wholly the
Sixth Amendment precedents as suitable analogies in the present cases. 10
The only attempt in this Court to carry the right to counsel into the station house occurred in Escobedo, the Court
repeating several times that that stage was no less "critical" than trial itself. See 378 U.S., 485-488. This is hardly
persuasive when we consider that a grand jury inquiry, the filing of a certiorari petition, and certainly the purchase of
narcotics by an undercover agent from a prospective defendant may all be equally "critical" yet provision of counsel and
advice on that score have never been thought compelled by the Constitution in such cases. The sound reason why this
right is so freely extended for a criminal trial is the severe injustice risked by confronting an untrained defendant with a
range of technical points of law, evidence, and tactics familiar to the prosecutor but not to himself. This danger shrinks
markedly in the police station where indeed the lawyer in fulfilling his professional responsibilities of necessity may
become an obstacle to truthfinding. See infra, n. 12. The Court's summary citation of the Sixth Amendment cases here
seems to me best described as "the domino method of constitutional adjudication . . . wherein every explanatory
statement in a previous opinion is made the basis for extension to a wholly different situation." Friendly, supra, n. 10, at
950.
III. POLICY CONSIDERATIONS.
Examined as an expression of public policy, the Court's new regime proves so dubious that there can be no due [384 U.S.
436, 515] compensation for its weakness in constitutional law. The foregoing discussion has shown, I think, how
mistaken is the Court in implying that the Constitution has struck the balance in favor of the approach the Court takes.
Ante, p. 479. Rather, precedent reveals that the Fourteenth Amendment in practice has been construed to strike a
different balance, that the Fifth Amendment gives the Court little solid support in this context, and that the Sixth
Amendment should have no bearing at all. Legal history has been stretched before to satisfy deep needs of society. In this
instance, however, the Court has not and cannot make the powerful showing that its new rules are plainly desirable in the
context of our society, something which is surely demanded before those rules are engrafted onto the Constitution and
imposed on every State and county in the land.

33
Without at all subscribing to the generally black picture of police conduct painted by the Court, I think it must be frankly
recognized at the outset that police questioning allowable under due process precedents may inherently entail some
pressure on the suspect and may seek advantage in his ignorance or weaknesses. The atmosphere and questioning
techniques, proper and fair though they be, can in themselves exert a tug on the suspect to confess, and in this light "[t]o
speak of any confessions of crime made after arrest as being `voluntary' or `uncoerced' is somewhat inaccurate, although
traditional. A confession is wholly and incontestably voluntary only if a guilty person gives himself up to the law and
becomes his own accuser." Ashcraft v. Tennessee, 322 U.S. 143, 161 (Jackson, J., dissenting). Until today, the role of the
Constitution has been only to sift out undue pressure, not to assure spontaneous confessions. 11 [384 U.S. 436, 516]
The Court's new rules aim to offset these minor pressures and disadvantages intrinsic to any kind of police interrogation.
The rules do not serve due process interests in preventing blatant coercion since, as I noted earlier, they do nothing to
contain the policeman who is prepared to lie from the start. The rules work for reliability in confessions almost only in the
Pickwickian sense that they can prevent some from being given at all. 12 In short, the benefit of this new regime is simply
to lessen or wipe out the inherent compulsion and inequalities to which the Court devotes some nine pages of description.
Ante, pp. 448-456.
What the Court largely ignores is that its rules impair, if they will not eventually serve wholly to frustrate, an instrument of
law enforcement that has long and quite reasonably been thought worth the price paid for it. 13 There can be little doubt
that the Court's new code would markedly decrease the number of confessions. To warn the suspect that he may remain
silent and remind him that his confession may be used in court are minor obstructions. To require also an express waiver
by the suspect and an end to questioning whenever he demurs [384 U.S. 436, 517] must heavily handicap questioning.
And to suggest or provide counsel for the suspect simply invites the end of the interrogation. See, supra, n. 12.
How much harm this decision will inflict on law enforcement cannot fairly be predicted with accuracy. Evidence on the role
of confessions is notoriously incomplete, see Developments, supra, n. 2, at 941-944, and little is added by the Court's
reference to the FBI experience and the resources believed wasted in interrogation. See infra, n. 19, and text. We do
know that some crimes cannot be solved without confessions, that ample expert testimony attests to their importance in
crime control, 14 and that the Court is taking a real risk with society's welfare in imposing its new regime on the country.
The social costs of crime are too great to call the new rules anything but a hazardous experimentation.
While passing over the costs and risks of its experiment, the Court portrays the evils of normal police questioning in terms
which I think are exaggerated. Albeit stringently confined by the due process standards interrogation is no doubt often
inconvenient and unpleasant for the suspect. However, it is no less so for a man to be arrested and jailed, to have his
house searched, or to stand trial in court, yet all this may properly happen to the most innocent given probable cause, a
warrant, or an indictment. Society has always paid a stiff price for law and order, and peaceful interrogation is not one of
the dark moments of the law.
This brief statement of the competing considerations seems to me ample proof that the Court's preference is highly
debatable at best and therefore not to be read into [384 U.S. 436, 518] the Constitution. However, it may make the
analysis more graphic to consider the actual facts of one of the four cases reversed by the Court. Miranda v. Arizona
serves best, being neither the hardest nor easiest of the four under the Court's standards. 15
On March 3, 1963, an 18-year-old girl was kidnapped and forcibly raped near Phoenix, Arizona. Ten days later, on the
morning of March 13, petitioner Miranda was arrested and taken to the police station. At this time Miranda was 23 years
old, indigent, and educated to the extent of completing half the ninth grade. He had "an emotional illness" of the
schizophrenic type, according to the doctor who eventually examined him; the doctor's report also stated that Miranda was
"alert and oriented as to time, place, and person," intelligent within normal limits, competent to stand trial, and sane within
the legal definition. At the police station, the victim picked Miranda out of a lineup, and two officers then took him into a
separate room to interrogate him, starting about 11:30 a. m. Though at first denying his guilt, within a short time Miranda
gave a detailed oral confession and then wrote out in his own hand and signed a brief statement admitting and describing
the crime. All this was accomplished in two hours or less without any force, threats or promises and - I will assume this
though the record is uncertain, ante, 491-492 and nn. 66-67 - without any effective warnings at all.
Miranda's oral and written confessions are now held inadmissible under the Court's new rules. One is entitled to feel
astonished that the Constitution can be read to produce this result. These confessions were obtained [384 U.S. 436,
519] during brief, daytime questioning conducted by two officers and unmarked by any of the traditional indicia of
coercion. They assured a conviction for a brutal and unsettling crime, for which the police had and quite possibly could
obtain little evidence other than the victim's identifications, evidence which is frequently unreliable. There was, in sum, a
legitimate purpose, no perceptible unfairness, and certainly little risk of injustice in the interrogation. Yet the resulting
confessions, and the responsible course of police practice they represent, are to be sacrificed to the Court's own finespun
conception of fairness which I seriously doubt is shared by many thinking citizens in this country. 16
The tenor of judicial opinion also falls well short of supporting the Court's new approach. Although Escobedo has widely
been interpreted as an open invitation to lower courts to rewrite the law of confessions, a significant heavy majority of the
state and federal decisions in point have sought quite narrow interpretations. 17 Of [384 U.S. 436, 520] the courts that
have accepted the invitation, it is hard to know how many have felt compelled by their best guess as to this Court's likely
construction; but none of the state decisions saw fit to rely on the state privilege against self-incrimination, and no decision
at all has gone as far as this Court goes today. 18
It is also instructive to compare the attitude in this case of those responsible for law enforcement with the official views
that existed when the Court undertook three major revisions of prosecutorial practice prior to this case, Johnson v.
Zerbst, 304 U.S. 458 , Mapp v. Ohio, 367 U.S. 643 , and Gideon v. Wainwright, 372 U.S. 335 . In Johnson, which
established that appointed counsel must be offered the indigent in federal criminal trials, the Federal Government all but
conceded the basic issue, which had in fact been recently fixed as Department of Justice policy. See Beaney, Right to
Counsel 29-30, 36-42 (1955). In Mapp, which imposed the exclusionary rule on the States for Fourth Amendment

34
violations, more than half of the States had themselves already adopted some such rule. See 367 U.S., at 651 . In
Gideon, which extended Johnson v. Zerbst to the States, an amicus brief was filed by 22 States and Commonwealths
urging that course; only two States besides that of the respondent came forward to protest. See 372 U.S., at 345 . By
contrast, in this case new restrictions on police [384 U.S. 436, 521] questioning have been opposed by the United States
and in an amicus brief signed by 27 States and Commonwealths, not including the three other States which are parties.
No State in the country has urged this Court to impose the newly announced rules, nor has any State chosen to go nearly
so far on its own.
The Court in closing its general discussion invokes the practice in federal and foreign jurisdictions as lending weight to its
new curbs on confessions for all the States. A brief resume will suffice to show that none of these jurisdictions has struck
so one-sided a balance as the Court does today. Heaviest reliance is placed on the FBI practice. Differing circumstances
may make this comparison quite untrustworthy,19 but in any event the FBI falls sensibly short of the Court's formalistic
rules. For example, there is no indication that FBI agents must obtain an affirmative "waiver" before they pursue their
questioning. Nor is it clear that one invoking his right to silence may not be prevailed upon to change his mind. And the
warning as to appointed counsel apparently indicates only that one will be assigned by the judge when the suspect
appears before him; the thrust of the Court's rules is to induce the suspect to obtain appointed counsel before continuing
the interview. See ante, pp. 484-486. Apparently American military practice, briefly mentioned by the Court, has these
same limits and is still less favorable to the suspect than the FBI warning, making no mention of appointed counsel.
Developments, supra, n. 2, at 1084-1089.
The law of the foreign countries described by the Court also reflects a more moderate conception of the rights of [384 U.S.
436, 522] the accused as against those of society when other data are considered. Concededly, the English experience
is most relevant. In that country, a caution as to silence but not counsel has long been mandated by the "Judges' Rules,"
which also place other somewhat imprecise limits on police cross-examination of suspects. However, in the court's
discretion confessions can be and apparently quite frequently are admitted in evidence despite disregard of the Judges'
Rules, so long as they are found voluntary under the common-law test. Moreover, the check that exists on the use of
pretrial statements is counterbalanced by the evident admissibility of fruits of an illegal confession and by the judge's
often-used authority to comment adversely on the defendant's failure to testify. 20
India, Ceylon and Scotland are the other examples chosen by the Court. In India and Ceylon the general ban on policeadduced confessions cited by the Court is subject to a major exception: if evidence is uncovered by police questioning, it
is fully admissible at trial along with the confession itself, so far as it relates to the evidence and is not blatantly coerced.
See Developments, supra, n. 2, at 1106-1110; Reg. v. Ramasamy 1965. A. C. 1 (P. C.). Scotland's limits on interrogation
do measure up to the Court's; however, restrained comment at trial on the defendant's failure to take the stand is allowed
the judge, and in many other respects Scotch law redresses the prosecutor's disadvantage in ways not permitted in this
country. 21 The Court ends its survey by imputing [384 U.S. 436, 523] added strength to our privilege against selfincrimination since, by contrast to other countries, it is embodied in a written Constitution. Considering the liberties the
Court has today taken with constitutional history and precedent, few will find this emphasis persuasive.
In closing this necessarily truncated discussion of policy considerations attending the new confession rules, some
reference must be made to their ironic untimeliness. There is now in progress in this country a massive re-examination of
criminal law enforcement procedures on a scale never before witnessed. Participants in this undertaking include a Special
Committee of the American Bar Association, under the chairmanship of Chief Judge Lumbard of the Court of Appeals for
the Second Circuit; a distinguished study group of the American Law Institute, headed by Professors Vorenberg and Bator
of the Harvard Law School; and the President's Commission on Law Enforcement and Administration of Justice, under the
leadership of the Attorney General of the United States. 22 Studies are also being conducted by the District of Columbia
Crime Commission, the Georgetown Law Center, and by others equipped to do practical research. 23 There are also
signs that legislatures in some of the States may be preparing to re-examine the problem before us. 24 [384 U.S. 436,
524]
It is no secret that concern has been expressed lest long-range and lasting reforms be frustrated by this Court's too rapid
departure from existing constitutional standards. Despite the Court's disclaimer, the practical effect of the decision made
today must inevitably be to handicap seriously sound efforts at reform, not least by removing options necessary to a just
compromise of competing interests. Of course legislative reform is rarely speedy or unanimous, though this Court has
been more patient in the past. 25 But the legislative reforms when they come would have the vast advantage of empirical
data and comprehensive study, they would allow experimentation and use of solutions not open to the courts, and they
would restore the initiative in criminal law reform to those forums where it truly belongs.
IV. CONCLUSIONS.
All four of the cases involved here present express claims that confessions were inadmissible, not because of coercion in
the traditional due process sense, but solely because of lack of counsel or lack of warnings concerning counsel and
silence. For the reasons stated in this opinion, I would adhere to the due process test and reject the new requirements
inaugurated by the Court. On this premise my disposition of each of these cases can be stated briefly.
In two of the three cases coming from state courts, Miranda v. Arizona (No. 759) and Vignera v. New York (No. 760), the
confessions were held admissible and no other errors worth comment are alleged by petitioners. [384 U.S. 436, 525] I
would affirm in these two cases. The other state case is California v. Stewart (No. 584), where the state supreme court
held the confession inadmissible and reversed the conviction. In that case I would dismiss the writ of certiorari on the
ground that no final judgment is before us, 28 U.S.C. 1257 (1964 ed.); putting aside the new trial open to the State in any
event, the confession itself has not even been finally excluded since the California Supreme Court left the State free to
show proof of a waiver. If the merits of the decision in Stewart be reached, then I believe it should be reversed and the
case remanded so the state supreme court may pass on the other claims available to respondent.
In the federal case, Westover v. United States (No. 761), a number of issues are raised by petitioner apart from the one
already dealt with in this dissent. None of these other claims appears to me tenable, nor in this context to warrant

35
extended discussion. It is urged that the confession was also inadmissible because not voluntary even measured by due
process standards and because federal-state cooperation brought the McNabb-Mallory rule into play under Anderson v.
United States, 318 U.S. 350 . However, the facts alleged fall well short of coercion in my view, and I believe the
involvement of federal agents in petitioner's arrest and detention by the State too slight to invoke Anderson. I agree with
the Government that the admission of the evidence now protested by petitioner was at most harmless error, and two final
contentions - one involving weight of the evidence and another improper prosecutor comment - seem to me without merit.
I would therefore affirm Westover's conviction.
In conclusion: Nothing in the letter or the spirit of the Constitution or in the precedents squares with the heavy-handed and
one-sided action that is so precipitously [384 U.S. 436, 526] taken by the Court in the name of fulfilling its constitutional
responsibilities. The foray which the Court makes today brings to mind the wise and farsighted words of Mr. Justice
Jackson in Douglas v. Jeannette, 319 U.S. 157, 181 (separate opinion): "This Court is forever adding new stories to the
temples of constitutional law, and the temples have a way of collapsing when one story too many is added."
[ Footnote 1 ] My discussion in this opinion is directed to the main questions decided by the Court and necessary to its
decision; in ignoring some of the collateral points, I do not mean to imply agreement.
[ Footnote 2 ] The case was Bram v. United States, 168 U.S. 532 (quoted, ante, p. 461). Its historical premises were
afterwards disproved by Wigmore, who concluded "that no assertions could be more unfounded." 3 Wigmore, Evidence
823, at 250, n. 5 (3d ed. 1940). The Court in United States v. Carignan, 342 U.S. 36, 41 , declined to choose between
Bram and Wigmore, and Stein v. New York, 346 U.S. 156, 191 , n. 35, cast further doubt on Bram. There are, however,
several Court opinions which assume in dicta the relevance of the Fifth Amendment privilege to confessions. Burdeau v.
McDowell,256 U.S. 465, 475 ; see Shotwell Mfg. Co. v. United States, 371 U.S. 341, 347 . On Bram and the federal
confession cases generally, see Developments in the Law - Confessions, 79 Harv. L. Rev. 935, 959-961 (1966).
[ Footnote 3 ] Comment, 31 U. Chi. L. Rev. 313 & n. 1 (1964), states that by the 1963 Term 33 state coerced-confession
cases had been decided by this Court, apart from per curiams. Spano v. New York,360 U.S. 315, 321 , n. 2, collects 28
cases.
[ Footnote 4 ] Bator & Vorenberg, Arrest, Detention, Interrogation and the Right to Counsel, 66 Col. L. Rev. 62, 73 (1966):
"In fact, the concept of involuntariness seems to be used by the courts as a shorthand to refer to practices which are
repellent to civilized standards of decency or which, under the circumstances, are thought to apply a degree of pressure to
an individual which unfairly impairs his capacity to make a rational choice." See Herman, The Supreme Court and
Restrictions on Police Interrogation, 25 Ohio St. L. J. 449, 452-458 (1964); Developments, supra, n. 2, at 964-984.
[ Footnote 5 ] See the cases synopsized in Herman, supra, n. 4, at 456, nn. 36-39. One not too distant example is Stroble
v. California, 343 U.S. 181 , in which the suspect was kicked and threatened after his arrest, questioned a little later for
two hours, and isolated from a lawyer trying to see him; the resulting confession was held admissible.
[ Footnote 6 ] Among the examples given in 8 Wigmore, Evidence 2266, at 401 (McNaughton rev. 1961), are these: the
privilege applies to any witness, civil or criminal, but the confession rule protects only criminal defendants; the privilege
deals only with compulsion, while the confession rule may exclude statements obtained by trick or promise; and where the
privilege has been nullified - as by the English Bankruptcy Act - the confession rule may still operate.
[ Footnote 7 ] Additionally, there are precedents and even historical arguments that can be arrayed in favor of bringing
extra-legal questioning within the privilege. See generally Maguire, Evidence of Guilt 2.03, at 15-16 (1959).
[ Footnote 8 ] This, of course, is implicit in the Court's introductory announcement that "[o]ur decision in Malloy v.
Hogan, 378 U.S. 1 (1964) [extending the Fifth Amendment privilege to the States] necessitates [384 U.S. 436, 512] an
examination of the scope of the privilege in state cases as well." Ante, p. 463. It is also inconsistent with Malloy itself, in
which extension of the Fifth Amendment to the States rested in part on the view that the Due Process Clause restriction
on state confessions has in recent years been "the same standard" as that imposed in federal prosecutions assertedly by
the Fifth Amendment. 378 U.S., at 7 .
[ Footnote 9 ] I lay aside Escobedo itself; it contains no reasoning or even general conclusions addressed to the Fifth
Amendment and indeed its citation in this regard seems surprising in view of Escobedo's primary reliance on the Sixth
Amendment.
[ Footnote 10 ] Since the Court conspicuously does not assert that the Sixth Amendment itself warrants its new policeinterrogation rules, there is no reason now to draw out the extremely powerful historical and precedential evidence that
the Amendment will bear no such meaning. See generally Friendly, The Bill of Rights as a Code of Criminal Procedure, 53
Calif. L. Rev. 929, 943-948 (1965).
[ Footnote 11 ] See supra, n. 4, and text. Of course, the use of terms like voluntariness involves questions of law and
terminology quite as much as questions of fact. See Collins v. Beto, 348 F.2d 823, 832 (concurring opinion); Bator &
Vorenberg, supra, n. 4, at 72-73.
[ Footnote 12 ] The Court's vision of a lawyer "mitigat[ing] the dangers of untrustworthiness" (ante, p. 470) by witnessing
coercion and assisting accuracy in the confession is largely a fancy; for if counsel arrives, there is rarely going to be a
police station confession. Watts v. Indiana, 338 U.S. 49, 59(separate opinion of Jackson, J.): "[A]ny lawyer worth his salt
will tell the suspect in no uncertain terms to make no statement to police under any circumstances." See Enker & Elsen,
Counsel for the Suspect, 49 Minn. L. Rev. 47, 66-68 (1964).
[ Footnote 13 ] This need is, of course, what makes so misleading the Court's comparison of a probate judge readily
setting aside as involuntary the will of an old lady badgered and beleaguered by the new heirs. Ante, pp. 457-458, n. 26.

36
With wills, there is no public interest save in a totally free choice; with confessions, the solution of crime is a countervailing
gain, however the balance is resolved.
[ Footnote 14 ] See, e. g., the voluminous citations to congressional committee testimony and other sources collected in
Culombe v. Connecticut, 367 U.S. 568, 578 -579 (Frankfurter, J., announcing the Court's judgment and an opinion).
[ Footnote 15 ] In Westover, a seasoned criminal was practically given the Court's full complement of warnings and did not
heed them. The Stewart case, on the other hand, involves long detention and successive questioning. In Vignera, the
facts are complicated and the record somewhat incomplete.
[ Footnote 16 ] "[J]ustice, though due to the accused, is due to the accuser also. The concept of fairness must not be
strained till it is narrowed to a filament. We are to keep the balance true." Snyder v. Massachusetts, 291 U.S. 97,
122 (Cardozo, J.).
[ Footnote 17 ] A narrow reading is given in: United States v. Robinson, 354 F.2d 109 (C. A. 2d Cir.); Davis v. North
Carolina, 339 F.2d 770 (C. A. 4th Cir.); Edwards v. Holman, 342 F.2d 679 (C. A. 5th Cir.); United States ex rel. Townsend v.
Ogilvie, 334 F.2d 837 (C. A. 7th Cir.); People v. Hartgraves, 31 Ill. 2d 375, 202 N. E. 2d 33; State v. Fox, ___ Iowa ___,
131 N. W. 2d 684; Rowe v. Commonwealth, 394 S. W. 2d 751 (Ky.); Parker v. Warden, 236 Md. 236, 203 A. 2d 418; State
v. Howard, 383 S. W. 2d 701 (Mo.); Bean v. State, ___ Nev. ___, 398 P.2d 251; State v. Hodgson, 44 N. J. 151, 207 A. 2d
542; People v. Gunner, 15 N. Y. 2d 226, 205 N. E. 2d 852; Commonwealth ex rel. Linde v. Maroney, 416 Pa. 331, 206 A.
2d 288; Browne v. State, 24 Wis. 2d 491, 131 N. W. 2d 169.
An ample reading is given in: United States ex rel. Russo v. New Jersey, 351 F.2d 429 (C. A. 3d Cir.); Wright v.
Dickson, [384 U.S. 436, 520] 336 F.2d 878 (C. A. 9th Cir.); People v. Dorado, 62 Cal. 2d 338, 398 P.2d 361; State v.
Dufour, ___ R. I. ___, 206 A. 2d 82; State v. Neely, 239 Ore. 487, 395 P.2d 557, modified, 398 P.2d 482.
The cases in both categories are those readily available; there are certainly many others.
[ Footnote 18 ] For instance, compare the requirements of the catalytic case of People v. Dorado, 62 Cal. 2d 338, 398
P.2d 361, with those laid down today. See also Traynor, The Devils of Due Process in Criminal Detection, Detention, and
Trial, 33 U. Chi. L. Rev. 657, 670.
[ Footnote 19 ] The Court's obiter dictum notwithstanding, ante, p. 486, there is some basis for believing that the staple of
FBI criminal work differs importantly from much crime within the ken of local police. The skill and resources of the FBI may
also be unusual.
[ Footnote 20 ] For citations and discussion covering each of these points, see Developments, supra, n. 2, at 1091-1097,
and Enker & Elsen, supra, n. 12, at 80 & n. 94.
[ Footnote 21 ] On comment, see Hardin, Other Answers: Search and Seizure, Coerced Confession, and Criminal Trial in
Scotland, 113 U. Pa. L. Rev. 165, 181 and nn. 96-97 (1964). Other examples are less stringent search and seizure rules
and no automatic exclusion for violation of them, id., at 167-169; guilt based on majority jury verdicts, id., at 185; and pretrial discovery of evidence on both sides, id., at 175.
[ Footnote 22 ] Of particular relevance is the ALI's drafting of a Model Code of Pre-Arraignment Procedure, now in its first
tentative draft. While the ABA and National Commission studies have wider scope, the former is lending its advice to the
ALI project and the executive director of the latter is one of the reporters for the Model Code.
[ Footnote 23 ] See Brief for the United States in Westover, p. 45. The N. Y. Times, June 3, 1966, p. 41 (late city ed.)
reported that the Ford Foundation has awarded $1,100,000 for a five-year study of arrests and confessions in New York.
[ Footnote 24 ] The New York Assembly recently passed a bill to require certain warnings before an admissible confession
is taken, though the rules are less strict than are the Court's. N. Y. Times, May 24, 1966, p. 35 (late city ed.).
[ Footnote 25 ] The Court waited 12 years after Wolf v. Colorado, 338 U.S. 25 , declared privacy against improper state
intrusions to be constitutionally safeguarded before it concluded in Mapp v. Ohio, 367 U.S. 643 , that adequate state
remedies had not been provided to protect this interest so the exclusionary rule was necessary.
MR. JUSTICE WHITE, with whom MR. JUSTICE HARLAN and MR. JUSTICE STEWART join, dissenting.
I.
The proposition that the privilege against self-incrimination forbids in-custody interrogation without the warnings specified
in the majority opinion and without a clear waiver of counsel has no significant support in the history of the privilege or in
the language of the Fifth Amendment. As for the English authorities and the common-law history, the privilege, firmly
established in the second half of the seventeenth century, was never applied except to prohibit compelled judicial
interrogations. The rule excluding coerced confessions matured about 100 years later, "[b]ut there is nothing in the reports
to suggest that the theory has its roots in the privilege against self-incrimination. And so far as the cases reveal, the
privilege, as such, seems to have been given effect only in judicial proceedings, including the preliminary examinations by
authorized magistrates." Morgan, The Privilege Against Self-Incrimination, 34 Minn. L. Rev. 1, 18 (1949).
Our own constitutional provision provides that no person "shall be compelled in any criminal case to be a witness against
himself." These words, when "[c]onsidered in the light to be shed by grammar and the dictionary . . . appear to signify
simply that nobody shall be [384 U.S. 436, 527] compelled to give oral testimony against himself in a criminal proceeding
under way in which he is defendant." Corwin, The Supreme Court's Construction of the Self-Incrimination Clause, 29
Mich. L. Rev. 1, 2. And there is very little in the surrounding circumstances of the adoption of the Fifth Amendment or in
the provisions of the then existing state constitutions or in state practice which would give the constitutional provision any

37
broader meaning. Mayers, The Federal Witness' Privilege Against Self-Incrimination: Constitutional or Common-Law? 4
American Journal of Legal History 107 (1960). Such a construction, however, was considerably narrower than the
privilege at common law, and when eventually faced with the issues, the Court extended the constitutional privilege to the
compulsory production of books and papers, to the ordinary witness before the grand jury and to witnesses generally.
Boyd v. United States, 116 U.S. 616 , and Counselman v. Hitchcock, 142 U.S. 547 . Both rules had solid support in
common-law history, if not in the history of our own constitutional provision.
A few years later the Fifth Amendment privilege was similarly extended to encompass the then well-established rule
against coerced confessions: "In criminal trials, in the courts of the United States, wherever a question arises whether a
confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the
Constitution of the United States, commanding that no person `shall be compelled in any criminal case to be a witness
against himself.'" Bram v. United States, 168 U.S. 532, 542 . Although this view has found approval in other cases,
Burdeau v. McDowell, 256 U.S. 465, 475 ; Powers v. United States, 223 U.S. 303, 313 ; Shotwell v. United States, 371
U.S. 341, 347 , it has also been questioned, see Brown v. Mississippi, 297 U.S. 278, 285 ; United States v. Carignan, [384
U.S. 436, 528] 342 U.S. 36, 41 ; Stein v. New York, 346 U.S. 156, 191 , n. 35, and finds scant support in either the
English or American authorities, see generally Regina v. Scott, Dears. & Bell 47; 3 Wigmore, Evidence 823 (3d ed. 1940),
at 249 ("a confession is not rejected because of any connection with the privilege against self-crimination"), and 250, n. 5
(particularly criticizing Bram); 8 Wigmore, Evidence 2266, at 400-401 (McNaughton rev. 1961). Whatever the source of the
rule excluding coerced confessions, it is clear that prior to the application of the privilege itself to state courts, Malloy v.
Hogan, 378 U.S. 1 , the admissibility of a confession in a state criminal prosecution was tested by the same standards as
were applied in federal prosecutions. Id., at 6-7, 10.
Bram, however, itself rejected the proposition which the Court now espouses. The question in Bram was whether a
confession, obtained during custodial interrogation, had been compelled, and if such interrogation was to be deemed
inherently vulnerable the Court's inquiry could have ended there. After examining the English and American authorities,
however, the Court declared that:
"In this court also it has been settled that the mere fact that the confession is made to a police officer, while the accused
was under arrest in or out of prison, or was drawn out by his questions, does not necessarily render the confession
involuntary, but, as one of the circumstances, such imprisonment or interrogation may be taken into account in
determining whether or not the statements of the prisoner were voluntary." 168 U.S., at 558 .
In this respect the Court was wholly consistent with prior and subsequent pronouncements in this Court.
Thus prior to Bram the Court, in Hopt v. Utah, 110 U.S. 574, 583 -587, had upheld the admissibility of a[384 U.S. 436,
529] confession made to police officers following arrest, the record being silent concerning what conversation had
occurred between the officers and the defendant in the short period preceding the confession. Relying on Hopt, the Court
ruled squarely on the issue in Sparf and Hansen v. United States, 156 U.S. 51, 55 :
"Counsel for the accused insist that there cannot be a voluntary statement, a free open confession, while a defendant is
confined and in irons under an accusation of having committed a capital offence. We have not been referred to any
authority in support of that position. It is true that the fact of a prisoner being in custody at the time he makes a confession
is a circumstance not to be overlooked, because it bears upon the inquiry whether the confession was voluntarily made or
was extorted by threats or violence or made under the influence of fear. But confinement or imprisonment is not in itself
sufficient to justify the exclusion of a confession, if it appears to have been voluntary, and was not obtained by putting the
prisoner in fear or by promises. Wharton's Cr. Ev. 9th ed. 661, 663, and authorities cited."
Accord, Pierce v. United States, 160 U.S. 355, 357 .
And in Wilson v. United States, 162 U.S. 613, 623 , the Court had considered the significance of custodial interrogation
without any antecedent warnings regarding the right to remain silent or the right to counsel. There the defendant had
answered questions posed by a Commissioner, who had failed to advise him of his rights, and his answers were held
admissible over his claim of involuntariness. "The fact that [a defendant] is in custody and manacled does not necessarily
render his statement involuntary, nor is that necessarily the effect of popular excitement shortly preceding. . . . And it is
laid down [384 U.S. 436, 530] that it is not essential to the admissibility of a confession that it should appear that the
person was warned that what he said would be used against him, but on the contrary, if the confession was voluntary, it is
sufficient though it appear that he was not so warned."
Since Bram, the admissibility of statements made during custodial interrogation has been frequently reiterated. Powers v.
United States, 223 U.S. 303 , cited Wilson approvingly and held admissible as voluntary statements the accused's
testimony at a preliminary hearing even though he was not warned that what he said might be used against him. Without
any discussion of the presence or absence of warnings, presumably because such discussion was deemed unnecessary,
numerous other cases have declared that "[t]he mere fact that a confession was made while in the custody of the police
does not render it inadmissible," McNabb v. United States, 318 U.S. 332, 346 ; accord, United States v. Mitchell,322 U.S.
65 , despite its having been elicited by police examination, Wan v. United States, 266 U.S. 1, 14 ; United States v.
Carignan, 342 U.S. 36, 39 . Likewise, in Crooker v. California, 357 U.S. 433, 437 , the Court said that "the bare fact of
police `detention and police examination in private of one in official state custody' does not render involuntary a
confession by the one so detained." And finally, in Cicenia v. Lagay, 357 U.S. 504 , a confession obtained by police
interrogation after arrest was held voluntary even though the authorities refused to permit the defendant to consult with his
attorney. See generally Culombe v. Connecticut, 367 U.S. 568, 587 -602 (opinion of Frankfurter, J.); 3 Wigmore, Evidence
851, at 313 (3d ed. 1940); see also Joy, Admissibility of Confessions 38, 46 (1842).
Only a tiny minority of our judges who have dealt with the question, including today's majority, have considered in-custody
interrogation, without more, to be a violation of the Fifth Amendment. And this Court, as [384 U.S. 436, 531] every
member knows, has left standing literally thousands of criminal convictions that rested at least in part on confessions
taken in the course of interrogation by the police after arrest.
II.

38
That the Court's holding today is neither compelled nor even strongly suggested by the language of the Fifth Amendment,
is at odds with American and English legal history, and involves a departure from a long line of precedent does not prove
either that the Court has exceeded its powers or that the Court is wrong or unwise in its present reinterpretation of the
Fifth Amendment. It does, however, underscore the obvious - that the Court has not discovered or found the law in making
today's decision, nor has it derived it from some irrefutable sources; what it has done is to make new law and new public
policy in much the same way that it has in the course of interpreting other great clauses of the Constitution. 1This is what
the Court historically has done. Indeed, it is what it must do and will continue to do until and unless there is some
fundamental change in the constitutional distribution of governmental powers.
But if the Court is here and now to announce new and fundamental policy to govern certain aspects of our affairs, it is
wholly legitimate to examine the mode of this or any other constitutional decision in this Court and to inquire into the
advisability of its end product in terms of the long-range interest of the country. At the very least the Court's text and
reasoning should withstand analysis and be a fair exposition of the constitutional provision which its opinion interprets.
Decisions [384 U.S. 436, 532] like these cannot rest alone on syllogism, metaphysics or some ill-defined notions of
natural justice, although each will perhaps play its part. In proceeding to such constructions as it now announces, the
Court should also duly consider all the factors and interests bearing upon the cases, at least insofar as the relevant
materials are available; and if the necessary considerations are not treated in the record or obtainable from some other
reliable source, the Court should not proceed to formulate fundamental policies based on speculation alone.
III.
First, we may inquire what are the textual and factual bases of this new fundamental rule. To reach the result announced
on the grounds it does, the Court must stay within the confines of the Fifth Amendment, which forbids self-incrimination
only if compelled. Hence the core of the Court's opinion is that because of the "compulsion inherent in custodial
surroundings, no statement obtained from [a] defendant [in custody] can truly be the product of his free choice," ante, at
458, absent the use of adequate protective devices as described by the Court. However, the Court does not point to any
sudden inrush of new knowledge requiring the rejection of 70 years' experience. Nor does it assert that its novel
conclusion reflects a changing consensus among state courts, see Mapp v. Ohio, 367 U.S. 643 , or that a succession of
cases had steadily eroded the old rule and proved it unworkable, see Gideon v. Wainwright, 372 U.S. 335 . Rather than
asserting new knowledge, the Court concedes that it cannot truly know what occurs during custodial questioning, because
of the innate secrecy of such proceedings. It extrapolates a picture of what it conceives to be the norm from police
investigatorial manuals, published in 1959 and 1962 or earlier, without any attempt to allow for adjustments in police
practices that may [384 U.S. 436, 533] have occurred in the wake of more recent decisions of state appellate tribunals or
this Court. But even if the relentless application of the described procedures could lead to involuntary confessions, it most
assuredly does not follow that each and every case will disclose this kind of interrogation or this kind of
consequence. 2 Insofar as appears from the Court's opinion, it has not examined a single transcript of any police
interrogation, let alone the interrogation that took place in any one of these cases which it decides today. Judged by any of
the standards for empirical investigation utilized in the social sciences the factual basis for the Court's premise is patently
inadequate.
Although in the Court's view in-custody interrogation is inherently coercive, the Court says that the spontaneous product of
the coercion of arrest and detention is still to be deemed voluntary. An accused, arrested on probable cause, may blurt out
a confession which will be admissible despite the fact that he is alone and in custody, without any showing that he had any
notion of his right to remain silent or of the consequences of his admission. Yet, under the Court's rule, if the police ask
him a single question such as "Do you have anything to say?" or "Did you kill your wife?" his response, if there is one, has
somehow been compelled, even if the accused has [384 U.S. 436, 534] been clearly warned of his right to remain silent.
Common sense informs us to the contrary. While one may say that the response was "involuntary" in the sense the
question provoked or was the occasion for the response and thus the defendant was induced to speak out when he might
have remained silent if not arrested and not questioned, it is patently unsound to say the response is compelled.
Today's result would not follow even if it were agreed that to some extent custodial interrogation is inherently coercive.
See Ashcraft v. Tennessee, 322 U.S. 143, 161 (Jackson, J., dissenting). The test has been whether the totality of
circumstances deprived the defendant of a "free choice to admit, to deny, or to refuse to answer," Lisenba v.
California, 314 U.S. 219, 241 , and whether physical or psychological coercion was of such a degree that "the defendant's
will was overborne at the time he confessed," Haynes v. Washington, 373 U.S. 503, 513 ; Lynumn v. Illinois, 372 U.S. 528,
534 . The duration and nature of incommunicado custody, the presence or absence of advice concerning the defendant's
constitutional rights, and the granting or refusal of requests to communicate with lawyers, relatives or friends have all
been rightly regarded as important data bearing on the basic inquiry. See, e. g., Ashcraft v. Tennessee, 322 U.S. 143 ;
Haynes v. Washington, 373 U.S. 503 . 3 [384 U.S. 436, 535] But it has never been suggested, until today, that such
questioning was so coercive and accused persons so lacking in hardihood that the very first response to the very first
question following the commencement of custody must be conclusively presumed to be the product of an overborne will.
If the rule announced today were truly based on a conclusion that all confessions resulting from custodial interrogation are
coerced, then it would simply have no rational foundation. Compare Tot v. United States, 319 U.S. 463, 466 ; United
States v. Romano, 382 U.S. 136 . A fortiori that would be true of the extension of the rule to exculpatory statements, which
the Court effects after a brief discussion of why, in the Court's view, they must be deemed incriminatory but without any
discussion of why they must be deemed coerced. See Wilson v. United States, 162 U.S. 613, 624 . Even if one were to
postulate that the Court's concern is not that all confessions induced by police interrogation are coerced but rather that
some such confessions are coerced and present judicial procedures are believed to be inadequate to identify the
confessions that are coerced and those that are not, it would still not be essential to impose the rule that the Court has
now fashioned. Transcripts or observers could be required, specific time limits, tailored to fit the cause, could be imposed,
or other devices could be utilized to reduce the chances that otherwise indiscernible coercion will produce an inadmissible
confession.
On the other hand, even if one assumed that there was an adequate factual basis for the conclusion that all confessions
obtained during in-custody interrogation are the product of compulsion, the rule propounded by [384 U.S. 436, 536] the

39
Court would still be irrational, for, apparently, it is only if the accused is also warned of his right to counsel and waives both
that right and the right against self-incrimination that the inherent compulsiveness of interrogation disappears. But if the
defendant may not answer without a warning a question such as "Where were you last night?" without having his answer
be a compelled one, how can the Court ever accept his negative answer to the question of whether he wants to consult
his retained counsel or counsel whom the court will appoint? And why if counsel is present and the accused nevertheless
confesses, or counsel tells the accused to tell the truth, and that is what the accused does, is the situation any less
coercive insofar as the accused is concerned? The Court apparently realizes its dilemma of foreclosing questioning
without the necessary warnings but at the same time permitting the accused, sitting in the same chair in front of the same
policemen, to waive his right to consult an attorney. It expects, however, that the accused will not often waive the right;
and if it is claimed that he has, the State faces a severe, if not impossible burden of proof.
All of this makes very little sense in terms of the compulsion which the Fifth Amendment proscribes. That amendment
deals with compelling the accused himself. It is his free will that is involved. Confessions and incriminating admissions, as
such, are not forbidden evidence; only those which are compelled are banned. I doubt that the Court observes these
distinctions today. By considering any answers to any interrogation to be compelled regardless of the content and course
of examination and by escalating the requirements to prove waiver, the Court not only prevents the use of compelled
confessions but for all practical purposes forbids interrogation except in the presence of counsel. That is, instead of
confining itself to protection of the right against compelled [384 U.S. 436, 537] self-incrimination the Court has created a
limited Fifth Amendment right to counsel - or, as the Court expresses it, a "need for counsel to protect the Fifth
Amendment privilege . . . ." Ante, at 470. The focus then is not on the will of the accused but on the will of counsel and
how much influence he can have on the accused. Obviously there is no warrant in the Fifth Amendment for thus installing
counsel as the arbiter of the privilege.
In sum, for all the Court's expounding on the menacing atmosphere of police interrogation procedures, it has failed to
supply any foundation for the conclusions it draws or the measures it adopts.
IV.
Criticism of the Court's opinion, however, cannot stop with a demonstration that the factual and textual bases for the rule it
propounds are, at best, less than compelling. Equally relevant is an assessment of the rule's consequences measured
against community values. The Court's duty to assess the consequences of its action is not satisfied by the utterance of
the truth that a value of our system of criminal justice is "to respect the inviolability of the human personality" and to
require government to produce the evidence against the accused by its own independent labors. Ante, at 460. More than
the human dignity of the accused is involved; the human personality of others in the society must also be preserved. Thus
the values reflected by the privilege are not the sole desideratum; society's interest in the general security is of equal
weight.
The obvious underpinning of the Court's decision is a deep-seated distrust of all confessions. As the Court declares that
the accused may not be interrogated without counsel present, absent a waiver of the right to counsel, and as the Court all
but admonishes the lawyer to [384 U.S. 436, 538] advise the accused to remain silent, the result adds up to a judicial
judgment that evidence from the accused should not be used against him in any way, whether compelled or not. This is
the not so subtle overtone of the opinion - that it is inherently wrong for the police to gather evidence from the accused
himself. And this is precisely the nub of this dissent. I see nothing wrong or immoral, and certainly nothing
unconstitutional, in the police's asking a suspect whom they have reasonable cause to arrest whether or not he killed his
wife or in confronting him with the evidence on which the arrest was based, at least where he has been plainly advised
that he may remain completely silent, see Escobedo v. Illinois, 378 U.S. 478, 499 (dissenting opinion). Until today, "the
admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of
incriminating evidence." Brown v. Walker, 161 U.S. 591, 596 ; see also Hopt v. Utah, 110 U.S. 574, 584 -585. Particularly
when corroborated, as where the police have confirmed the accused's disclosure of the hiding place of implements or
fruits of the crime, such confessions have the highest reliability and significantly contribute to the certitude with which we
may believe the accused is guilty. Moreover, it is by no means certain that the process of confessing is injurious to the
accused. To the contrary it may provide psychological relief and enhance the prospects for rehabilitation.
This is not to say that the value of respect for the inviolability of the accused's individual personality should be accorded
no weight or that all confessions should be indiscriminately admitted. This Court has long read the Constitution to
proscribe compelled confessions, a salutary rule from which there should be no retreat. But I see no sound basis, factual
or otherwise, and the Court gives none, for concluding that the present rule against the receipt of coerced confessions is
inadequate for the [384 U.S. 436, 539] task of sorting out inadmissible evidence and must be replaced by the per se rule
which is now imposed. Even if the new concept can be said to have advantages of some sort over the present law, they
are far outweighed by its likely undesirable impact on other very relevant and important interests.
The most basic function of any government is to provide for the security of the individual and of his property. Lanzetta v.
New Jersey, 306 U.S. 451, 455 . These ends of society are served by the criminal laws which for the most part are aimed
at the prevention of crime. Without the reasonably effective performance of the task of preventing private violence and
retaliation, it is idle to talk about human dignity and civilized values.
The modes by which the criminal laws serve the interest in general security are many. First the murderer who has taken
the life of another is removed from the streets, deprived of his liberty and thereby prevented from repeating his offense. In
view of the statistics on recidivism in this country 4and of the number of instances [384 U.S. 436, 540] in which
apprehension occurs only after repeated offenses, no one can sensibly claim that this aspect of the criminal law does not
prevent crime or contribute significantly to the personal security of the ordinary citizen.
Secondly, the swift and sure apprehension of those who refuse to respect the personal security and dignity of their
neighbor unquestionably has its impact on others who might be similarly tempted. That the criminal law is wholly or partly
ineffective with a segment of the population or with many of those who have been apprehended and convicted is a very
faulty basis for concluding that it is not effective with respect to the great bulk of our citizens or for thinking that without the

40
criminal laws, [384 U.S. 436, 541] or in the absence of their enforcement, there would be no increase in crime.
Arguments of this nature are not borne out by any kind of reliable evidence that I have seen to this date.
Thirdly, the law concerns itself with those whom it has confined. The hope and aim of modern penology, fortunately, is as
soon as possible to return the convict to society a better and more law-abiding man than when he left. Sometimes there is
success, sometimes failure. But at least the effort is made, and it should be made to the very maximum extent of our
present and future capabilities.
The rule announced today will measurably weaken the ability of the criminal law to perform these tasks. It is a deliberate
calculus to prevent interrogations, to reduce the incidence of confessions and pleas of guilty and to increase the number
of trials. 5 Criminal trials, no [384 U.S. 436, 542] matter how efficient the police are, are not sure bets for the prosecution,
nor should they be if the evidence is not forthcoming. Under the present law, the prosecution fails to prove its case in
about 30% of the criminal cases actually tried in the federal courts. See Federal Offenders: 1964, supra, note 4, at 6
(Table 4), 59 (Table 1); Federal Offenders: 1963, supra, note 4, at 5 (Table 3); District of Columbia Offenders: 1963, supra,
note 4, at 2 (Table 1). But it is something else again to remove from the ordinary criminal case all those confessions which
heretofore have been held to be free and voluntary acts of the accused and to thus establish a new constitutional barrier
to the ascertainment of truth by the judicial process. There is, in my view, every reason to believe that a good many
criminal defendants who otherwise would have been convicted on what this Court has previously thought to be the most
satisfactory kind of evidence will now, under this new version of the Fifth Amendment, either not be tried at all or will be
acquitted if the State's evidence, minus the confession, is put to the test of litigation.
I have no desire whatsoever to share the responsibility for any such impact on the present criminal process.
In some unknown number of cases the Court's rule will return a killer, a rapist or other criminal to the streets and to the
environment which produced him, to repeat his crime whenever it pleases him. As a consequence, there will not be a
gain, but a loss, in human dignity. The real concern is not the unfortunate consequences of this new decision on the
criminal law as an abstract, disembodied series of authoritative proscriptions, but the impact on those who rely on the
public authority for protection and who without it can only engage in violent self-help with guns, knives and the help of
their neighbors similarly inclined. There is, of [384 U.S. 436, 543] course, a saving factor: the next victims are uncertain,
unnamed and unrepresented in this case.
Nor can this decision do other than have a corrosive effect on the criminal law as an effective device to prevent crime. A
major component in its effectiveness in this regard is its swift and sure enforcement. The easier it is to get away with rape
and murder, the less the deterrent effect on those who are inclined to attempt it. This is still good common sense. If it were
not, we should posthaste liquidate the whole law enforcement establishment as a useless, misguided effort to control
human conduct.
And what about the accused who has confessed or would confess in response to simple, noncoercive questioning and
whose guilt could not otherwise be proved? Is it so clear that release is the best thing for him in every case? Has it so
unquestionably been resolved that in each and every case it would be better for him not to confess and to return to his
environment with no attempt whatsoever to help him? I think not. It may well be that in many cases it will be no less than a
callous disregard for his own welfare as well as for the interests of his next victim.
There is another aspect to the effect of the Court's rule on the person whom the police have arrested on probable cause.
The fact is that he may not be guilty at all and may be able to extricate himself quickly and simply if he were told the
circumstances of his arrest and were asked to explain. This effort, and his release, must now await the hiring of a lawyer
or his appointment by the court, consultation with counsel and then a session with the police or the prosecutor. Similarly,
where probable cause exists to arrest several suspects, as where the body of the victim is discovered in a house having
several residents, compare Johnson v. State, 238 Md. 140, 207 A. 2d 643 (1965), cert. denied, 382 U.S. 1013 , it will
often [384 U.S. 436, 544] be true that a suspect may be cleared only through the results of interrogation of other
suspects. Here too the release of the innocent may be delayed by the Court's rule.
Much of the trouble with the Court's new rule is that it will operate indiscriminately in all criminal cases, regardless of the
severity of the crime or the circumstances involved. It applies to every defendant, whether the professional criminal or one
committing a crime of momentary passion who is not part and parcel of organized crime. It will slow down the investigation
and the apprehension of confederates in those cases where time is of the essence, such as kidnapping, see Brinegar v.
United States, 338 U.S. 160, 183 (Jackson, J., dissenting); People v. Modesto, 62 Cal. 2d 436, 446, 398 P.2d 753, 759
(1965), those involving the national security, see United States v. Drummond, 354 F.2d 132, 147 (C. A. 2d Cir. 1965) (en
banc) (espionage case), pet. for cert. pending, No. 1203, Misc., O. T. 1965; cf. Gessner v. United States, 354 F.2d 726,
730, n. 10 (C. A. 10th Cir. 1965) (upholding, in espionage case, trial ruling that Government need not submit classified
portions of interrogation transcript), and some of those involving organized crime. In the latter context the lawyer who
arrives may also be the lawyer for the defendant's colleagues and can be relied upon to insure that no breach of the
organization's security takes place even though the accused may feel that the best thing he can do is to cooperate.
At the same time, the Court's per se approach may not be justified on the ground that it provides a "bright line" permitting
the authorities to judge in advance whether interrogation may safely be pursued without jeopardizing the admissibility of
any information obtained as a consequence. Nor can it be claimed that judicial time and effort, assuming that is a relevant
consideration, [384 U.S. 436, 545] will be conserved because of the ease of application of the new rule. Today's decision
leaves open such questions as whether the accused was in custody, whether his statements were spontaneous or the
product of interrogation, whether the accused has effectively waived his rights, and whether nontestimonial evidence
introduced at trial is the fruit of statements made during a prohibited interrogation, all of which are certain to prove
productive of uncertainty during investigation and litigation during prosecution. For all these reasons, if further restrictions
on police interrogation are desirable at this time, a more flexible approach makes much more sense than the Court's
constitutional straitjacket which forecloses more discriminating treatment by legislative or rule-making pronouncements.

41
Applying the traditional standards to the cases before the Court, I would hold these confessions voluntary. I would
therefore affirm in Nos. 759, 760, and 761, and reverse in No. 584.
[ Footnote 1 ] Of course the Court does not deny that it is departing from prior precedent; it expressly overrules Crooker
and Cicenia, ante, at 479, n. 48, and it acknowledges that in the instant "cases we might not find the defendants'
statements to have been involuntary in traditional terms," ante, at 457.
[ Footnote 2 ] In fact, the type of sustained interrogation described by the Court appears to be the exception rather than
the rule. A survey of 399 cases in one city found that in almost half of the cases the interrogation lasted less than 30
minutes. Barrett, Police Practices and the Law - From Arrest to Release or Charge, 50 Calif. L. Rev. 11, 41-45 (1962).
Questioning tends to be confused and sporadic and is usually concentrated on confrontations with witnesses or new items
of evidence, as these are obtained by officers conducting the investigation. See generally LaFave, Arrest: The Decision to
Take a Suspect into Custody 386 (1965); ALI, A Model Code of Pre-Arraignment Procedure, Commentary 5.01, at 170, n.
4 (Tent. Draft No. 1, 1966).
[ Footnote 3 ] By contrast, the Court indicates that in applying this new rule it "will not pause to inquire in individual cases
whether the defendant was aware of his rights without a warning being given." Ante, at 468. The reason given is that
assessment of the knowledge of the defendant based on information as to age, education, intelligence, or prior contact
with authorities can never be more than speculation, while a warning is a clear-cut fact. But the officers' claim that they
gave the requisite warnings may be disputed, and facts respecting the defendant's prior experience may be undisputed
and be of such a nature as to virtually preclude any doubt that the defendant knew of his rights. See United States v.
Bolden, 355 F.2d 453 [384 U.S. 436, 535] (C. A. 7th Cir. 1965), petition for cert. pending No. 1146, O. T. 1965 (Secret
Service agent); People v. Du Bont, 235 Cal. App. 2d 844, 45 Cal. Rptr. 717, pet. for cert. pending No. 1053, Misc., O. T.
1965 (former police officer).
[ Footnote 4 ] Precise statistics on the extent of recidivism are unavailable, in part because not all crimes are solved and
in part because criminal records of convictions in different jurisdictions are not brought together by a central data
collection agency. Beginning in 1963, however, the Federal Bureau of Investigation began collating data on "Careers in
Crime," which it publishes in its Uniform Crime Reports. Of 92,869 offenders processed in 1963 and 1964, 76% had a
prior arrest record on some charge. Over a period of 10 years the group had accumulated 434,000 charges. FBI, Uniform
Crime Reports - 1964, 27-28. In 1963 and 1964 between 23% and 25% of all offenders sentenced in 88 federal district
courts (excluding the District Court for the District of Columbia) whose criminal records were reported had previously been
sentenced to a term of imprisonment of 13 months or more. Approximately an additional 40% had a prior record less than
prison (juvenile record, probation record, etc.). Administrative Office of the United States Courts, Federal Offenders in the
United States District Courts: 1964, x, 36 (hereinafter cited as Federal Offenders: 1964); Administrative [384 U.S. 436,
540] Office of the United States Courts, Federal Offenders in the United States District Courts: 1963, 25-27 (hereinafter
cited as Federal Offenders: 1963). During the same two years in the District Court for the District of Columbia between
28% and 35% of those sentenced had prior prison records and from 37% to 40% had a prior record less than prison.
Federal Offenders: 1964, xii, 64, 66; Administrative Office of the United States Courts, Federal Offenders in the United
States District Court for the District of Columbia: 1963, 8, 10 (hereinafter cited as District of Columbia Offenders: 1963).
A similar picture is obtained if one looks at the subsequent records of those released from confinement. In 1964, 12.3% of
persons on federal probation had their probation revoked because of the commission of major violations (defined as one
in which the probationer has been committed to imprisonment for a period of 90 days or more, been placed on probation
for over one year on a new offense, or has absconded with felony charges outstanding). Twenty-three and two-tenths
percent of parolees and 16.9% of those who had been mandatorily released after service of a portion of their sentence
likewise committed major violations. Reports of the Proceedings of the Judicial Conference of the United States and
Annual Report of the Director of the Administrative Office of the United States Courts: 1965, 138. See also Mandel et al.,
Recidivism Studied and Defined, 56 J. Crim. L., C. & P. S. 59 (1965) (within five years of release 62.33% of sample had
committed offenses placing them in recidivist category).
[ Footnote 5 ] Eighty-eight federal district courts (excluding the District Court for the District of Columbia) disposed of the
cases of 33,381 criminal defendants in 1964. Only 12.5% of those cases were actually tried. Of the remaining cases,
89.9% were terminated by convictions upon pleas of guilty and 10.1% were dismissed. Stated differently, approximately
90% of all convictions resulted from guilty pleas. Federal Offenders: 1964, supra, note 4, 3-6. In the District Court for the
District of Columbia a higher percentage, 27%, went to trial, and the defendant pleaded guilty in approximately 78% of the
cases terminated prior to trial. Id., at 58-59. No reliable statistics are available concerning the percentage of cases in
which guilty pleas are induced because of the existence of a confession or of physical evidence unearthed as a result of a
confession. Undoubtedly the number of such cases is substantial.
Perhaps of equal significance is the number of instances of known crimes which are not solved. In 1964, only 388,946, or
23.9% of 1,626,574 serious known offenses were cleared. The clearance rate ranged from 89.8% for homicides to 18.7%
for larceny. FBI, Uniform Crime Reports - 1964, 20-22, 101. Those who would replace interrogation as an investigatorial
tool by modern scientific investigation techniques significantly overestimate the effectiveness of present procedures, even
when interrogation is included. [384 U.S. 436, 546]

42
ROE v. WADE, 410 U.S. 113 (1973)
410 U.S. 113
ROE ET AL. v. WADE, DISTRICT ATTORNEY OF DALLAS COUNTY
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
TEXAS
No. 70-18.
Argued December 13, 1971 Reargued October 11, 1972
Decided January 22, 1973
A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws,
which proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life.
A licensed physician (Hallford), who had two state abortion prosecutions pending against him, was permitted to intervene.
A childless married couple (the Does), the wife not being pregnant, separately attacked the laws, basing alleged injury on
the future possibilities of contraceptive failure, pregnancy, unpreparedness for parenthood, and impairment of the wife's
health. A three-judge District Court, which consolidated the actions, held that Roe and Hallford, and members of their
classes, had standing to sue and presented justiciable controversies. Ruling that declaratory, though not injunctive, relief
was warranted, the court declared the abortion statutes void as vague and overbroadly infringing those plaintiffs' Ninth
and Fourteenth Amendment rights. The court ruled the Does' complaint not justiciable. Appellants directly appealed to this
Court on the injunctive rulings, and appellee cross-appealed from the District Court's grant of declaratory relief to Roe and
Hallford. Held:
1. While 28 U.S.C. 1253 authorizes no direct appeal to this Court from the grant or denial of declaratory relief alone,
review is not foreclosed when the case is properly before the Court on appeal from specific denial of injunctive
relief and the arguments as to both injunctive and declaratory relief are necessarily identical. P. 123.
2. Roe has standing to sue; the Does and Hallford do not. Pp. 123-129.
(a) Contrary to appellee's contention, the natural termination of Roe's pregnancy did not moot her suit. Litigation involving
pregnancy, which is "capable of repetition, yet evading review," is an exception to the usual federal rule that an actual
controversy [410 U.S. 113, 114] must exist at review stages and not simply when the action is initiated. Pp. 124-125.
(b) The District Court correctly refused injunctive, but erred in granting declaratory, relief to Hallford, who alleged no
federally protected right not assertable as a defense against the good-faith state prosecutions pending against him.
Samuels v. Mackell, 401 U.S. 66 . Pp. 125-127.
(c) The Does' complaint, based as it is on contingencies, any one or more of which may not occur, is too speculative to
present an actual case or controversy. Pp. 127-129.
3. State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the
mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause
of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right
to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the
pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a "compelling"
point at various stages of the woman's approach to term. Pp. 147-164.
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left
to the medical judgment of the pregnant woman's attending physician. Pp. 163, 164.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the
health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal
health. Pp. 163, 164.
(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it
chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the
preservation of the life or health of the mother. Pp. 163-164; 164-165.
4. The State may define the term "physician" to mean only a physician currently licensed by the State, and may proscribe
any abortion by a person who is not a physician as so defined. P. 165.
5. It is unnecessary to decide the injunctive relief issue since the Texas authorities will doubtless fully recognize the
Court's ruling [410 U.S. 113, 115] that the Texas criminal abortion statutes are unconstitutional. P. 166.
314 F. Supp. 1217, affirmed in part and reversed in part.
BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C. J., and DOUGLAS, BRENNAN, STEWART,
MARSHALL, and POWELL, JJ., joined. BURGER, C. J., post, p. 207, DOUGLAS, J., post, p. 209, and STEWART, J.,
post, p. 167, filed concurring opinions. WHITE, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p.
221. REHNQUIST, J., filed a dissenting opinion, post, p. 171.
Sarah Weddington reargued the cause for appellants. With her on the briefs were Roy Lucas, Fred Bruner, Roy L. Merrill,
Jr., and Norman Dorsen.
Robert C. Flowers, Assistant Attorney General of Texas, argued the cause for appellee on the reargument. Jay Floyd,
Assistant Attorney General, argued the cause for appellee on the original argument. With them on the brief were Crawford
C. Martin, Attorney General, Nola White, First Assistant Attorney General, Alfred Walker, Executive Assistant Attorney
General, Henry Wade, and John B. Tolle. * [410 U.S. 113, 116]
[ Footnote * ] Briefs of amici curiae were filed by Gary K. Nelson, Attorney General of Arizona, Robert K. Killian, Attorney
General of Connecticut, Ed W. Hancock, Attorney General of Kentucky, Clarence A. H. Meyer, Attorney General of
Nebraska, and Vernon B. Romney, Attorney General of Utah; by Joseph P. Witherspoon, Jr., for the Association of Texas

43
Diocesan Attorneys; by Charles E. Rice for Americans United for Life; by Eugene J. McMahon for Women for the Unborn
et al.; by Carol Ryan for the American College of Obstetricians and Gynecologists et al.; by Dennis J. Horan, Jerome A.
Frazel, Jr., Thomas M. Crisham, and Dolores V. Horan for Certain Physicians, Professors and Fellows of the American
College of Obstetrics and Gynecology; by Harriet F. Pilpel, Nancy F. Wechsler, and Frederic S. Nathan for Planned
Parenthood Federation of America, Inc., et al.; by Alan F. Charles for the National Legal Program on Health Problems of
the Poor et al.; by Marttie L. Thompson for State Communities Aid Assn.; by [410 U.S. 113, 116] Alfred L. Scanlan, Martin
J. Flynn, and Robert M. Byrn for the National Right to Life Committee; by Helen L. Buttenwieser for the American Ethical
Union et al.; by Norma G. Zarky for the American Association of University Women et al.; by Nancy Stearns for New
Women Lawyers et al.; by the California Committee to Legalize Abortion et al.; and by Robert E. Dunne for Robert L.
Sassone.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This Texas federal appeal and its Georgia companion, Doe v. Bolton, post, p. 179, present constitutional challenges to
state criminal abortion legislation. The Texas statutes under attack here are typical of those that have been in effect in
many States for approximately a century. The Georgia statutes, in contrast, have a modern cast and are a legislative
product that, to an extent at least, obviously reflects the influences of recent attitudinal change, of advancing medical
knowledge and techniques, and of new thinking about an old issue.
We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the
vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject
inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious
training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to
observe, are all likely to influence and to color one's thinking and conclusions about abortion.
In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.
Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek
earnestly to do this, and, because we do, we [410 U.S. 113, 117] have inquired into, and in this opinion place some
emphasis upon, medical and medical-legal history and what that history reveals about man's attitudes toward the abortion
procedure over the centuries. We bear in mind, too, Mr. Justice Holmes' admonition in his now-vindicated dissent in
Lochner v. New York, 198 U.S. 45, 76 (1905):
"[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions
natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes
embodying them conflict with the Constitution of the United States."
I
The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the State's Penal Code. 1 These make it a crime
to "procure an abortion," as therein [410 U.S. 113, 118] defined, or to attempt one, except with respect to "an abortion
procured or attempted by medical advice for the purpose of saving the life of the mother." Similar statutes are in existence
in a majority of the States. 2 [410 U.S. 113, 119]
Texas first enacted a criminal abortion statute in 1854. Texas Laws 1854, c. 49, 1, set forth in 3 H. Gammel, Laws of Texas
1502 (1898). This was soon modified into language that has remained substantially unchanged to the present time. See
Texas Penal Code of 1857, c. 7, Arts. 531-536; G. Paschal, Laws of Texas, Arts. 2192-2197 (1866); Texas Rev. Stat., c. 8,
Arts. 536-541 (1879); Texas Rev. Crim. Stat., Arts. 1071-1076 (1911). The final article in each of these compilations
provided the same exception, as does the present Article 1196, for an abortion by "medical advice for the purpose of
saving the life of the mother." 3 [410 U.S. 113, 120]
II
Jane Roe, 4 a single woman who was residing in Dallas County, Texas, instituted this federal action in March 1970 against
the District Attorney of the county. She sought a declaratory judgment that the Texas criminal abortion statutes were
unconstitutional on their face, and an injunction restraining the defendant from enforcing the statutes.
Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion "performed
by a competent, licensed physician, under safe, clinical conditions"; that she was unable to get a "legal" abortion in Texas
because her life did not appear to be threatened by the continuation of her pregnancy; and that she could not afford to
travel to another jurisdiction in order to secure a legal abortion under safe conditions. She claimed that the Texas statutes
were unconstitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth,
Ninth, and Fourteenth Amendments. By an amendment to her complaint Roe purported to sue "on behalf of herself and all
other women" similarly situated.
James Hubert Hallford, a licensed physician, sought and was granted leave to intervene in Roe's action. In his complaint
he alleged that he had been arrested previously for violations of the Texas abortion statutes and [410 U.S. 113, 121] that
two such prosecutions were pending against him. He described conditions of patients who came to him seeking abortions,
and he claimed that for many cases he, as a physician, was unable to determine whether they fell within or outside the
exception recognized by Article 1196. He alleged that, as a consequence, the statutes were vague and uncertain, in
violation of the Fourteenth Amendment, and that they violated his own and his patients' rights to privacy in the doctorpatient relationship and his own right to practice medicine, rights he claimed were guaranteed by the First, Fourth, Fifth,
Ninth, and Fourteenth Amendments.
John and Mary Doe, 5 a married couple, filed a companion complaint to that of Roe. They also named the District Attorney
as defendant, claimed like constitutional deprivations, and sought declaratory and injunctive relief. The Does alleged that
they were a childless couple; that Mrs. Doe was suffering from a "neural-chemical" disorder; that her physician had

44
"advised her to avoid pregnancy until such time as her condition has materially improved" (although a pregnancy at the
present time would not present "a serious risk" to her life); that, pursuant to medical advice, she had discontinued use of
birth control pills; and that if she should become pregnant, she would want to terminate the pregnancy by an abortion
performed by a competent, licensed physician under safe, clinical conditions. By an amendment to their complaint, the
Does purported to sue "on behalf of themselves and all couples similarly situated."
The two actions were consolidated and heard together by a duly convened three-judge district court. The suits thus
presented the situations of the pregnant single woman, the childless couple, with the wife not pregnant, [410 U.S. 113,
122] and the licensed practicing physician, all joining in the attack on the Texas criminal abortion statutes. Upon the filing
of affidavits, motions were made for dismissal and for summary judgment. The court held that Roe and members of her
class, and Dr. Hallford, had standing to sue and presented justiciable controversies, but that the Does had failed to allege
facts sufficient to state a present controversy and did not have standing. It concluded that, with respect to the requests for
a declaratory judgment, abstention was not warranted. On the merits, the District Court held that the "fundamental right of
single women and married persons to choose whether to have children is protected by the Ninth Amendment, through the
Fourteenth Amendment," and that the Texas criminal abortion statutes were void on their face because they were both
unconstitutionally vague and constituted an overbroad infringement of the plaintiffs' Ninth Amendment rights. The court
then held that abstention was warranted with respect to the requests for an injunction. It therefore dismissed the Does'
complaint, declared the abortion statutes void, and dismissed the application for injunctive relief. 314 F. Supp. 1217, 1225
(ND Tex. 1970).
The plaintiffs Roe and Doe and the intervenor Hallford, pursuant to 28 U.S.C. 1253, have appealed to this Court from that
part of the District Court's judgment denying the injunction. The defendant District Attorney has purported to cross-appeal,
pursuant to the same statute, from the court's grant of declaratory relief to Roe and Hallford. Both sides also have taken
protective appeals to the United States Court of Appeals for the Fifth Circuit. That court ordered the appeals held in
abeyance pending decision here. We postponed decision on jurisdiction to the hearing on the merits. 402 U.S. 941 (1971).
[410 U.S. 113, 123]
III
It might have been preferable if the defendant, pursuant to our Rule 20, had presented to us a petition for certiorari before
judgment in the Court of Appeals with respect to the granting of the plaintiffs' prayer for declaratory relief. Our decisions in
Mitchell v. Donovan, 398 U.S. 427 (1970), and Gunn v. University Committee, 399 U.S. 383 (1970), are to the effect that
1253 does not authorize an appeal to this Court from the grant or denial of declaratory relief alone. We conclude,
nevertheless, that those decisions do not foreclose our review of both the injunctive and the declaratory aspects of a case
of this kind when it is properly here, as this one is, on appeal under 1253 from specific denial of injunctive relief, and the
arguments as to both aspects are necessarily identical. See Carter v. Jury Comm'n, 396 U.S. 320 (1970); Florida Lime
Growers v. Jacobsen, 362 U.S. 73, 80 -81 (1960). It would be destructive of time and energy for all concerned were we to
rule otherwise. Cf. Doe v. Bolton, post, p. 179.
IV
We are next confronted with issues of justiciability, standing, and abstention. Have Roe and the Does established that
"personal stake in the outcome of the controversy," Baker v. Carr, 369 U.S. 186, 204(1962), that insures that "the dispute
sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial
resolution," Flast v. Cohen, 392 U.S. 83, 101 (1968), and Sierra Club v. Morton, 405 U.S. 727, 732 (1972)? And what
effect did the pendency of criminal abortion charges against Dr. Hallford in state court have upon the propriety of the
federal court's granting relief to him as a plaintiff-intervenor? [410 U.S. 113, 124]
A. Jane Roe. Despite the use of the pseudonym, no suggestion is made that Roe is a fictitious person. For purposes of
her case, we accept as true, and as established, her existence; her pregnant state, as of the inception of her suit in March
1970 and as late as May 21 of that year when she filed an alias affidavit with the District Court; and her inability to obtain a
legal abortion in Texas.
Viewing Roe's case as of the time of its filing and thereafter until as late as May, there can be little dispute that it then
presented a case or controversy and that, wholly apart from the class aspects, she, as a pregnant single woman thwarted
by the Texas criminal abortion laws, had standing to challenge those statutes. Abele v. Markle, 452 F.2d 1121, 1125 (CA2
1971); Crossen v. Breckenridge, 446 F.2d 833, 838-839 (CA6 1971); Poe v. Menghini, 339 F. Supp. 986, 990-991 (Kan.
1972). See Truax v. Raich,239 U.S. 33 (1915). Indeed, we do not read the appellee's brief as really asserting anything to
the contrary. The "logical nexus between the status asserted and the claim sought to be adjudicated," Flast v. Cohen, 392
U.S., at 102 , and the necessary degree of contentiousness, Golden v. Zwickler, 394 U.S. 103 (1969), are both present.
The appellee notes, however, that the record does not disclose that Roe was pregnant at the time of the District Court
hearing on May 22, 1970, 6 or on the following June 17 when the court's opinion and judgment were filed. And he
suggests that Roe's case must now be moot because she and all other members of her class are no longer subject to any
1970 pregnancy. [410 U.S. 113, 125]
The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not
simply at the date the action is initiated. United States v. Munsingwear, Inc.,340 U.S. 36 (1950); Golden v. Zwickler, supra;
SEC v. Medical Committee for Human Rights, 404 U.S. 403 (1972).
But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short
that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case
moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied.
Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general
population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of
nonmootness. It truly could be "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U.S.

45
498, 515 (1911). See Moore v. Ogilvie, 394 U.S. 814, 816 (1969); Carroll v. Princess Anne, 393 U.S. 175, 178-179 (1968);
United States v. W. T. Grant Co., 345 U.S. 629, 632 -633 (1953).
We, therefore, agree with the District Court that Jane Roe had standing to undertake this litigation, that she presented a
justiciable controversy, and that the termination of her 1970 pregnancy has not rendered her case moot.
B. Dr. Hallford. The doctor's position is different. He entered Roe's litigation as a plaintiff-intervenor, alleging in his
complaint that he:
"[I]n the past has been arrested for violating the Texas Abortion Laws and at the present time stands charged by
indictment with violating said laws in the Criminal District Court of Dallas County, Texas to-wit: (1) The State of Texas
vs. [410 U.S. 113, 126] James H. Hallford, No. C-69-5307-IH, and (2) The State of Texas vs. James H. Hallford, No. C69-2524-H. In both cases the defendant is charged with abortion . . . ."
In his application for leave to intervene, the doctor made like representations as to the abortion charges pending in the
state court. These representations were also repeated in the affidavit he executed and filed in support of his motion for
summary judgment.
Dr. Hallford is, therefore, in the position of seeking, in a federal court, declaratory and injunctive relief with respect to the
same statutes under which he stands charged in criminal prosecutions simultaneously pending in state court. Although he
stated that he has been arrested in the past for violating the State's abortion laws, he makes no allegation of any
substantial and immediate threat to any federally protected right that cannot be asserted in his defense against the state
prosecutions. Neither is there any allegation of harassment or bad-faith prosecution. In order to escape the rule articulated
in the cases cited in the next paragraph of this opinion that, absent harassment and bad faith, a defendant in a pending
state criminal case cannot affirmatively challenge in federal court the statutes under which the State is prosecuting him,
Dr. Hallford seeks to distinguish his status as a present state defendant from his status as a "potential future defendant"
and to assert only the latter for standing purposes here.
We see no merit in that distinction. Our decision in Samuels v. Mackell, 401 U.S. 66 (1971), compels the conclusion that
the District Court erred when it granted declaratory relief to Dr. Hallford instead of refraining from so doing. The court, of
course, was correct in refusing to grant injunctive relief to the doctor. The reasons supportive of that action, however, are
those expressed in Samuels v. Mackell, supra, and in Younger v. [410 U.S. 113, 127] Harris, 401 U.S. 37 (1971); Boyle v.
Landry, 401 U.S. 77(1971); Perez v. Ledesma, 401 U.S. 82 (1971); and Byrne v. Karalexis, 401 U.S. 216 (1971). See also
Dombrowski v. Pfister, 380 U.S. 479 (1965). We note, in passing, that Younger and its companion cases were decided
after the three-judge District Court decision in this case.
Dr. Hallford's complaint in intervention, therefore, is to be dismissed. 7 He is remitted to his defenses in the state criminal
proceedings against him. We reverse the judgment of the District Court insofar as it granted Dr. Hallford relief and failed to
dismiss his complaint in intervention.
C. The Does. In view of our ruling as to Roe's standing in her case, the issue of the Does' standing in their case has little
significance. The claims they assert are essentially the same as those of Roe, and they attack the same statutes.
Nevertheless, we briefly note the Does' posture.
Their pleadings present them as a childless married couple, the woman not being pregnant, who have no desire to have
children at this time because of their having received medical advice that Mrs. Doe should avoid pregnancy, and for "other
highly personal reasons." But they "fear . . . they may face the prospect of becoming [410 U.S. 113, 128] parents." And if
pregnancy ensues, they "would want to terminate" it by an abortion. They assert an inability to obtain an abortion legally in
Texas and, consequently, the prospect of obtaining an illegal abortion there or of going outside Texas to some place where
the procedure could be obtained legally and competently.
We thus have as plaintiffs a married couple who have, as their asserted immediate and present injury, only an alleged
"detrimental effect upon [their] marital happiness" because they are forced to "the choice of refraining from normal sexual
relations or of endangering Mary Doe's health through a possible pregnancy." Their claim is that sometime in the future
Mrs. Doe might become pregnant because of possible failure of contraceptive measures, and at that time in the future she
might want an abortion that might then be illegal under the Texas statutes.
This very phrasing of the Does' position reveals its speculative character. Their alleged injury rests on possible future
contraceptive failure, possible future pregnancy, possible future unpreparedness for parenthood, and possible future
impairment of health. Any one or more of these several possibilities may not take place and all may not combine. In the
Does' estimation, these possibilities might have some real or imagined impact upon their marital happiness. But we are
not prepared to say that the bare allegation of so indirect an injury is sufficient to present an actual case or controversy.
Younger v. Harris, 401 U.S., at 41 -42; Golden v. Zwickler, 394 U.S., at 109 -110; Abele v. Markle, 452 F.2d, at 1124-1125;
Crossen v. Breckenridge, 446 F.2d, at 839. The Does' claim falls far short of those resolved otherwise in the cases that the
Does urge upon us, namely, Investment Co. Institute v. Camp, 401 U.S. 617 (1971); Data Processing Service v.
Camp, 397 U.S. 150 (1970); [410 U.S. 113, 129] and Epperson v. Arkansas, 393 U.S. 97 (1968). See also Truax v.
Raich, 239 U.S. 33 (1915).
The Does therefore are not appropriate plaintiffs in this litigation. Their complaint was properly dismissed by the District
Court, and we affirm that dismissal.
V
The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed
by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of
personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and
sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut, 381 U.S.
479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); id., at 460 (WHITE, J., concurring in result); or among those rights

46
reserved to the people by the Ninth Amendment, Griswold v. Connecticut, 381 U.S., at 486 (Goldberg, J., concurring).
Before addressing this claim, we feel it desirable briefly to survey, in several aspects, the history of abortion, for such
insight as that history may afford us, and then to examine the state purposes and interests behind the criminal abortion
laws.
VI
It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are
of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except
when necessary to preserve the pregnant woman's life, are not of ancient or even of common-law origin. Instead, they
derive from statutory changes effected, for the most part, in the latter half of the 19th century. [410 U.S. 113, 130]
1. Ancient attitudes. These are not capable of precise determination. We are told that at the time of the Persian Empire
abortifacients were known and that criminal abortions were severely punished. 8 We are also told, however, that abortion
was practiced in Greek times as well as in the Roman Era, 9 and that "it was resorted to without scruple." 10 The
Ephesian, Soranos, often described as the greatest of the ancient gynecologists, appears to have been generally
opposed to Rome's prevailing free-abortion practices. He found it necessary to think first of the life of the mother, and he
resorted to abortion when, upon this standard, he felt the procedure advisable. 11 Greek and Roman law afforded little
protection to the unborn. If abortion was prosecuted in some places, it seems to have been based on a concept of a
violation of the father's right to his offspring. Ancient religion did not bar abortion. 12
2. The Hippocratic Oath. What then of the famous Oath that has stood so long as the ethical guide of the medical
profession and that bears the name of the great Greek (460(?)-377(?) B. C.), who has been described [410 U.S. 113,
131] as the Father of Medicine, the "wisest and the greatest practitioner of his art," and the "most important and most
complete medical personality of antiquity," who dominated the medical schools of his time, and who typified the sum of the
medical knowledge of the past? 13 The Oath varies somewhat according to the particular translation, but in any
translation the content is clear: "I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in
like manner I will not give to a woman a pessary to produce abortion," 14 or "I will neither give a deadly drug to anybody if
asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a woman an abortive remedy." 15
Although the Oath is not mentioned in any of the principal briefs in this case or in Doe v. Bolton, post, p. 179, it represents
the apex of the development of strict ethical concepts in medicine, and its influence endures to this day. Why did not the
authority of Hippocrates dissuade abortion practice in his time and that of Rome? The late Dr. Edelstein provides us with a
theory: 16 The Oath was not uncontested even in Hippocrates' day; only the Pythagorean school of philosophers frowned
upon the related act of suicide. Most Greek thinkers, on the other hand, commended abortion, at least prior to viability.
See Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b 25. For the Pythagoreans, however, it was a matter of dogma.
For them the embryo was animate from the moment of conception, and abortion meant destruction of a living being. The
abortion clause of the Oath, therefore, "echoes Pythagorean doctrines," [410 U.S. 113, 132] and "[i]n no other stratum of
Greek opinion were such views held or proposed in the same spirit of uncompromising austerity." 17
Dr. Edelstein then concludes that the Oath originated in a group representing only a small segment of Greek opinion and
that it certainly was not accepted by all ancient physicians. He points out that medical writings down to Galen (A. D. 130200) "give evidence of the violation of almost every one of its injunctions." 18 But with the end of antiquity a decided
change took place. Resistance against suicide and against abortion became common. The Oath came to be popular. The
emerging teachings of Christianity were in agreement with the Pythagorean ethic. The Oath "became the nucleus of all
medical ethics" and "was applauded as the embodiment of truth." Thus, suggests Dr. Edelstein, it is "a Pythagorean
manifesto and not the expression of an absolute standard of medical conduct." 19
This, it seems to us, is a satisfactory and acceptable explanation of the Hippocratic Oath's apparent rigidity. It enables us
to understand, in historical context, a long-accepted and revered statement of medical ethics.
3. The common law. It is undisputed that at common law, abortion performed before "quickening" - the first recognizable
movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy 20 - was not an indictable
offense. 21 The absence [410 U.S. 113, 133] of a common-law crime for pre-quickening abortion appears to have
developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins.
These disciplines variously approached the question in terms of the point at which the embryo or fetus became "formed"
or recognizably human, or in terms of when a "person" came into being, that is, infused with a "soul" or "animated." A
loose consensus evolved in early English law that these events occurred at some point between conception and live
birth. 22 This was "mediate animation." Although [410 U.S. 113, 134] Christian theology and the canon law came to fix the
point of animation at 40 days for a male and 80 days for a female, a view that persisted until the 19th century, there was
otherwise little agreement about the precise time of formation or animation. There was agreement, however, that prior to
this point the fetus was to be regarded as part of the mother, and its destruction, therefore, was not homicide. Due to
continued uncertainty about the precise time when animation occurred, to the lack of any empirical basis for the 40-80-day
view, and perhaps to Aquinas' definition of movement as one of the two first principles of life, Bracton focused upon
quickening as the critical point. The significance of quickening was echoed by later common-law scholars and found its
way into the received common law in this country.
Whether abortion of a quick fetus was a felony at common law, or even a lesser crime, is still disputed. Bracton, writing
early in the 13th century, thought it homicide. 23 But the later and predominant view, following the great common-law
scholars, has been that it was, at most, a lesser offense. In a frequently cited [410 U.S. 113, 135] passage, Coke took
the position that abortion of a woman "quick with childe" is "a great misprision, and no murder." 24 Blackstone followed,
saying that while abortion after quickening had once been considered manslaughter (though not murder), "modern law"
took a less severe view. 25 A recent review of the common-law precedents argues, however, that those precedents
contradict Coke and that even post-quickening abortion was never established as a common-law crime. 26 This is of
some importance because while most American courts ruled, in holding or dictum, that abortion of an unquickened fetus
was not criminal under their received common law, 27 others followed Coke in stating that abortion [410 U.S. 113, 136] of

47
a quick fetus was a "misprision," a term they translated to mean "misdemeanor." 28 That their reliance on Coke on this
aspect of the law was uncritical and, apparently in all the reported cases, dictum (due probably to the paucity of commonlaw prosecutions for post-quickening abortion), makes it now appear doubtful that abortion was ever firmly established as
a common-law crime even with respect to the destruction of a quick fetus.
4. The English statutory law. England's first criminal abortion statute, Lord Ellenborough's Act, 43 Geo. 3, c. 58, came in
1803. It made abortion of a quick fetus, 1, a capital crime, but in 2 it provided lesser penalties for the felony of abortion
before quickening, and thus preserved the "quickening" distinction. This contrast was continued in the general revision of
1828, 9 Geo. 4, c. 31, 13. It disappeared, however, together with the death penalty, in 1837, 7 Will. 4 & 1 Vict., c. 85. 6,
and did not reappear in the Offenses Against the Person Act of 1861, 24 & 25 Vict., c. 100, 59, that formed the core of
English anti-abortion law until the liberalizing reforms of 1967. In 1929, the Infant Life (Preservation) Act, 19 & 20 Geo. 5,
c. 34, came into being. Its emphasis was upon the destruction of "the life of a child capable of being born alive." It made a
willful act performed with the necessary intent a felony. It contained a proviso that one was not to be [410 U.S. 113,
137] found guilty of the offense "unless it is proved that the act which caused the death of the child was not done in good
faith for the purpose only of preserving the life of the mother."
A seemingly notable development in the English law was the case of Rex v. Bourne, 1939. 1 K. B. 687. This case
apparently answered in the affirmative the question whether an abortion necessary to preserve the life of the pregnant
woman was excepted from the criminal penalties of the 1861 Act. In his instructions to the jury, Judge Macnaghten
referred to the 1929 Act, and observed that that Act related to "the case where a child is killed by a wilful act at the time
when it is being delivered in the ordinary course of nature." Id., at 691. He concluded that the 1861 Act's use of the word
"unlawfully," imported the same meaning expressed by the specific proviso in the 1929 Act, even though there was no
mention of preserving the mother's life in the 1861 Act. He then construed the phrase "preserving the life of the mother"
broadly, that is, "in a reasonable sense," to include a serious and permanent threat to the mother's health, and instructed
the jury to acquit Dr. Bourne if it found he had acted in a good-faith belief that the abortion was necessary for this purpose.
Id., at 693-694. The jury did acquit.
Recently, Parliament enacted a new abortion law. This is the Abortion Act of 1967, 15 & 16 Eliz. 2, c. 87. The Act permits a
licensed physician to perform an abortion where two other licensed physicians agree (a) "that the continuance of the
pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant
woman or any existing children of her family, greater than if the pregnancy were terminated," or (b) "that there is a
substantial risk that if the child were born it would suffer from such physical or mental abnormalities as [410 U.S. 113,
138] to be seriously handicapped." The Act also provides that, in making this determination, "account may be taken of
the pregnant woman's actual or reasonably foreseeable environment." It also permits a physician, without the concurrence
of others, to terminate a pregnancy where he is of the good-faith opinion that the abortion "is immediately necessary to
save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman."
5. The American law. In this country, the law in effect in all but a few States until mid-19th century was the pre-existing
English common law. Connecticut, the first State to enact abortion legislation, adopted in 1821 that part of Lord
Ellenborough's Act that related to a woman "quick with child." 29 The death penalty was not imposed. Abortion before
quickening was made a crime in that State only in 1860. 30In 1828, New York enacted legislation 31 that, in two respects,
was to serve as a model for early anti-abortion statutes. First, while barring destruction of an unquickened fetus as well as
a quick fetus, it made the former only a misdemeanor, but the latter second-degree manslaughter. Second, it incorporated
a concept of therapeutic abortion by providing that an abortion was excused if it "shall have been necessary to preserve
the life of such mother, or shall have been advised by two physicians to be necessary for such purpose." By 1840, when
Texas had received the common law, 32 only eight American States [410 U.S. 113, 139] had statutes dealing with
abortion. 33 It was not until after the War Between the States that legislation began generally to replace the common law.
Most of these initial statutes dealt severely with abortion after quickening but were lenient with it before quickening. Most
punished attempts equally with completed abortions. While many statutes included the exception for an abortion thought
by one or more physicians to be necessary to save the mother's life, that provision soon disappeared and the typical law
required that the procedure actually be necessary for that purpose.
Gradually, in the middle and late 19th century the quickening distinction disappeared from the statutory law of most States
and the degree of the offense and the penalties were increased. By the end of the 1950's, a large majority of the
jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the
mother. 34 The exceptions, Alabama and the District of Columbia, permitted abortion to preserve the mother's
health. 35 Three States permitted abortions that were not "unlawfully" performed or that were not "without lawful
justification," leaving interpretation of those standards to the courts. 36 In [410 U.S. 113, 140] the past several years,
however, a trend toward liberalization of abortion statutes has resulted in adoption, by about one-third of the States, of
less stringent laws, most of them patterned after the ALI Model Penal Code, 230.3, 37 set forth as Appendix B to the
opinion in Doe v. Bolton, post, p. 205.
It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of
the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it
another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today.
At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity [410 U.S.
113, 141] to make this choice was present in this country well into the 19th century. Even later, the law continued for
some time to treat less punitively an abortion procured in early pregnancy.
6. The position of the American Medical Association. The anti-abortion mood prevalent in this country in the late 19th
century was shared by the medical profession. Indeed, the attitude of the profession may have played a significant role in
the enactment of stringent criminal abortion legislation during that period.
An AMA Committee on Criminal Abortion was appointed in May 1857. It presented its report, 12 Trans. of the Am. Med.
Assn. 73-78 (1859), to the Twelfth Annual Meeting. That report observed that the Committee had been appointed to

48
investigate criminal abortion "with a view to its general suppression." It deplored abortion and its frequency and it listed
three causes of "this general demoralization":
"The first of these causes is a wide-spread popular ignorance of the true character of the crime - a belief, even among
mothers themselves, that the foetus is not alive till after the period of quickening.
"The second of the agents alluded to is the fact that the profession themselves are frequently supposed careless of foetal
life . . . .
"The third reason of the frightful extent of this crime is found in the grave defects of our laws, both common and statute, as
regards the independent and actual existence of the child before birth, as a living being. These errors, which are sufficient
in most instances to prevent conviction, are based, and only based, upon mistaken and exploded medical dogmas. With
strange inconsistency, the law fully acknowledges the foetus in utero and its inherent rights, for civil purposes; while
personally and as criminally affected, it fails to recognize it, [410 U.S. 113, 142] and to its life as yet denies all protection."
Id., at 75-76.
The Committee then offered, and the Association adopted, resolutions protesting "against such unwarrantable destruction
of human life," calling upon state legislatures to revise their abortion laws, and requesting the cooperation of state medical
societies "in pressing the subject." Id., at 28, 78.
In 1871 a long and vivid report was submitted by the Committee on Criminal Abortion. It ended with the observation, "We
had to deal with human life. In a matter of less importance we could entertain no compromise. An honest judge on the
bench would call things by their proper names. We could do no less." 22 Trans. of the Am. Med. Assn. 258 (1871). It
proffered resolutions, adopted by the Association, id., at 38-39, recommending, among other things, that it "be unlawful
and unprofessional for any physician to induce abortion or premature labor, without the concurrent opinion of at least one
respectable consulting physician, and then always with a view to the safety of the child - if that be possible," and calling
"the attention of the clergy of all denominations to the perverted views of morality entertained by a large class of females aye, and men also, on this important question."
Except for periodic condemnation of the criminal abortionist, no further formal AMA action took place until 1967. In that
year, the Committee on Human Reproduction urged the adoption of a stated policy of opposition to induced abortion,
except when there is "documented medical evidence" of a threat to the health or life of the mother, or that the child "may
be born with incapacitating physical deformity or mental deficiency," or that a pregnancy "resulting from legally established
statutory or forcible rape or incest may constitute a threat to the mental or physical health of the [410 U.S. 113,
143] patient," two other physicians "chosen because of their recognized professional competence have examined the
patient and have concurred in writing," and the procedure "is performed in a hospital accredited by the Joint Commission
on Accreditation of Hospitals." The providing of medical information by physicians to state legislatures in their
consideration of legislation regarding therapeutic abortion was "to be considered consistent with the principles of ethics of
the American Medical Association." This recommendation was adopted by the House of Delegates. Proceedings of the
AMA House of Delegates 40-51 (June 1967).
In 1970, after the introduction of a variety of proposed resolutions, and of a report from its Board of Trustees, a reference
committee noted "polarization of the medical profession on this controversial issue"; division among those who had
testified; a difference of opinion among AMA councils and committees; "the remarkable shift in testimony" in six months,
felt to be influenced "by the rapid changes in state laws and by the judicial decisions which tend to make abortion more
freely available;" and a feeling "that this trend will continue." On June 25, 1970, the House of Delegates adopted
preambles and most of the resolutions proposed by the reference committee. The preambles emphasized "the best
interests of the patient," "sound clinical judgment," and "informed patient consent," in contrast to "mere acquiescence to
the patient's demand." The resolutions asserted that abortion is a medical procedure that should be performed by a
licensed physician in an accredited hospital only after consultation with two other physicians and in conformity with state
law, and that no party to the procedure should be required to violate personally held moral principles. 38 Proceedings[410
U.S. 113, 144] of the AMA House of Delegates 220 (June 1970). The AMA Judicial Council rendered a complementary
opinion. 39
7. The position of the American Public Health Association. In October 1970, the Executive Board of the APHA adopted
Standards for Abortion Services. These were five in number:
"a. Rapid and simple abortion referral must be readily available through state and local public [410 U.S. 113, 145] health
departments, medical societies, or other nonprofit organizations.
"b. An important function of counselling should be to simplify and expedite the provision of abortion services; it should not
delay the obtaining of these services.
"c. Psychiatric consultation should not be mandatory. As in the case of other specialized medical services, psychiatric
consultation should be sought for definite indications and not on a routine basis.
"d. A wide range of individuals from appropriately trained, sympathetic volunteers to highly skilled physicians may qualify
as abortion counselors.
"e. Contraception and/or sterilization should be discussed with each abortion patient." Recommended Standards for
Abortion Services, 61 Am. J. Pub. Health 396 (1971).
Among factors pertinent to life and health risks associated with abortion were three that "are recognized as important":
"a. the skill of the physician,
"b. the environment in which the abortion is performed, and above all
"c. the duration of pregnancy, as determined by uterine size and confirmed by menstrual history." Id., at 397.
It was said that "a well-equipped hospital" offers more protection "to cope with unforeseen difficulties than an office or
clinic without such resources. . . . The factor of gestational age is of overriding importance." Thus, it was recommended
that abortions in the second trimester and early abortions in the presence of existing medical complications be performed
in hospitals as inpatient procedures. For pregnancies in the first trimester, [410 U.S. 113, 146] abortion in the hospital
with or without overnight stay "is probably the safest practice." An abortion in an extramural facility, however, is an
acceptable alternative "provided arrangements exist in advance to admit patients promptly if unforeseen complications

49
develop." Standards for an abortion facility were listed. It was said that at present abortions should be performed by
physicians or osteopaths who are licensed to practice and who have "adequate training." Id., at 398.
8. The position of the American Bar Association. At its meeting in February 1972 the ABA House of Delegates approved,
with 17 opposing votes, the Uniform Abortion Act that had been drafted and approved the preceding August by the
Conference of Commissioners on Uniform State Laws. 58 A. B. A. J. 380 (1972). We set forth the Act in full in the
margin. 40 The [410 U.S. 113, 147] Conference has appended an enlightening Prefatory Note. 41
VII
Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and
to justify their continued existence. [410 U.S. 113, 148]
It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit sexual
conduct. Texas, however, does not advance this justification in the present case, and it appears that no court or
commentator has taken the argument seriously. 42 The appellants and amici contend, moreover, that this is not a proper
state purpose at all and suggest that, if it were, the Texas statutes are overbroad in protecting it since the law fails to
distinguish between married and unwed mothers.
A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws were first enacted,
the procedure was a hazardous one for the woman. 43 This was particularly true prior to the [410 U.S. 113,
149] development of antisepsis. Antiseptic techniques, of course, were based on discoveries by Lister, Pasteur, and
others first announced in 1867, but were not generally accepted and employed until about the turn of the century. Abortion
mortality was high. Even after 1900, and perhaps until as late as the development of antibiotics in the 1940's, standard
modern techniques such as dilation and curettage were not nearly so safe as they are today. Thus, it has been argued
that a State's real concern in enacting a criminal abortion law was to protect the pregnant woman, that is, to restrain her
from submitting to a procedure that placed her life in serious jeopardy.
Modern medical techniques have altered this situation. Appellants and various amici refer to medical data indicating that
abortion in early pregnancy, that is, prior to the end of the first trimester, although not without its risk, is now relatively safe.
Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than
the rates for normal childbirth. 44Consequently, any interest of the State in protecting the woman from an inherently
hazardous procedure, except when it would be equally dangerous for her to forgo it, has largely disappeared. Of course,
important state interests in the areas of health and medical standards do remain. [410 U.S. 113, 150] The State has a
legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that
insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to
the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that
might arise. The prevalence of high mortality rates at illegal "abortion mills" strengthens, rather than weakens, the State's
interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as
her pregnancy continues. Thus, the State retains a definite interest in protecting the woman's own health and safety when
an abortion is proposed at a late stage of pregnancy.
The third reason is the State's interest - some phrase it in terms of duty - in protecting prenatal life. Some of the argument
for this justification rests on the theory that a new human life is present from the moment of conception. 45 The State's
interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant
mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not
prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that
life begins at conception or at some other point prior to live birth. In assessing the State's interest, recognition may be
given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the
protection of the pregnant woman alone. [410 U.S. 113, 151]
Parties challenging state abortion laws have sharply disputed in some courts the contention that a purpose of these laws,
when enacted, was to protect prenatal life. 46 Pointing to the absence of legislative history to support the contention, they
claim that most state laws were designed solely to protect the woman. Because medical advances have lessened this
concern, at least with respect to abortion in early pregnancy, they argue that with respect to such abortions the laws can
no longer be justified by any state interest. There is some scholarly support for this view of original purpose. 47 The few
state courts called upon to interpret their laws in the late 19th and early 20th centuries did focus on the State's interest in
protecting the woman's health rather than in preserving the embryo and fetus.48 Proponents of this view point out that in
many States, including Texas, 49 by statute or judicial interpretation, the pregnant woman herself could not be prosecuted
for self-abortion or for cooperating in an abortion performed upon her by another. 50 They claim that adoption of the
"quickening" distinction through received common [410 U.S. 113, 152] law and state statutes tacitly recognizes the
greater health hazards inherent in late abortion and impliedly repudiates the theory that life begins at conception.
It is with these interests, and the weight to be attached to them, that this case is concerned.
VIII
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far
as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or
a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or
individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S.
557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8 -9 (1968), Katz v. United States, 389
U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438,
478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484 485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first
section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear
that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v.
Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the

50
right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v.
Oklahoma, 316 U.S. 535, 541 -542 (1942); contraception, Eisenstadt v. Baird,405 U.S., at 453 -454; id., at 460, 463465 [410 U.S. 113, 153] (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158,
166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska,
supra.
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions
upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to
the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment
that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct
harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon
the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by
child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of
bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one,
the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman
and her responsible physician necessarily will consider in consultation.
On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she
is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.
With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion
decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive.
The [410 U.S. 113, 154] Court's decisions recognizing a right of privacy also acknowledge that some state regulation in
areas protected by that right is appropriate. As noted above, a State may properly assert important interests in
safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these
respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.
The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by
some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of
privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in
the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200(1927) (sterilization).
We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not
unqualified and must be considered against important state interests in regulation.
We note that those federal and state courts that have recently considered abortion law challenges have reached the same
conclusion. A majority, in addition to the District Court in the present case, have held state laws unconstitutional, at least in
part, because of vagueness or because of overbreadth and abridgment of rights. Abele v. Markle, 342 F. Supp. 800 (Conn.
1972), appeal docketed, No. 72-56; Abele v. Markle, 351 F. Supp. 224 (Conn. 1972), appeal docketed, No. 72-730; Doe v.
Bolton, 319 F. Supp. 1048 (ND Ga. 1970), appeal decided today, post, p. 179; Doe v. Scott, 321 F. Supp. 1385 (ND Ill.
1971), appeal docketed, No. 70-105; Poe v. Menghini, 339 F. Supp. 986 (Kan. 1972); YWCA v. Kugler, 342 F. Supp. 1048
(NJ 1972); Babbitz v. McCann, [410 U.S. 113, 155] 310 F. Supp. 293 (ED Wis. 1970), appeal dismissed, 400 U.S.
1 (1970); People v. Belous, 71 Cal. 2d 954, 458 P.2d 194 (1969), cert. denied, 397 U.S. 915 (1970); State v. Barquet, 262
So.2d 431 (Fla. 1972).
Others have sustained state statutes. Crossen v. Attorney General, 344 F. Supp. 587 (ED Ky. 1972), appeal docketed, No.
72-256; Rosen v. Louisiana State Board of Medical Examiners, 318 F. Supp. 1217 (ED La. 1970), appeal docketed, No.
70-42; Corkey v. Edwards, 322 F. Supp. 1248 (WDNC 1971), appeal docketed, No. 71-92; Steinberg v. Brown, 321 F.
Supp. 741 (ND Ohio 1970); Doe v. Rampton (Utah 1971), appeal docketed, No. 71-5666; Cheaney v. State, ___ Ind. ___,
285 N. E. 2d 265 (1972); Spears v. State, 257 So.2d 876 (Miss. 1972); State v. Munson, 86 S. D. 663, 201 N. W. 2d 123
(1972), appeal docketed, No. 72-631.
Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad
enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and
that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant.
We agree with this approach.
Where certain "fundamental rights" are involved, the Court has held that regulation limiting these rights may be justified
only by a "compelling state interest," Kramer v. Union Free School District, 395 U.S. 621, 627 (1969); Shapiro v.
Thompson, 394 U.S. 618, 634 (1969), Sherbert v. Verner, 374 U.S. 398, 406 (1963), and that legislative enactments must
be narrowly drawn to express only the legitimate state interests at stake. Griswold v. Connecticut, 381 U.S., at 485 ;
Aptheker v. Secretary of State, 378 U.S. 500, 508 (1964); Cantwell v. Connecticut, 310 U.S. 296, 307 -308 (1940);
see [410 U.S. 113, 156] Eisenstadt v. Baird, 405 U.S., at 460 , 463-464 (WHITE, J., concurring in result).
In the recent abortion cases, cited above, courts have recognized these principles. Those striking down state laws have
generally scrutinized the State's interests in protecting health and potential life, and have concluded that neither interest
justified broad limitations on the reasons for which a physician and his pregnant patient might decide that she should have
an abortion in the early stages of pregnancy. Courts sustaining state laws have held that the State's determinations to
protect health or prenatal life are dominant and constitutionally justifiable.
IX
The District Court held that the appellee failed to meet his burden of demonstrating that the Texas statute's infringement
upon Roe's rights was necessary to support a compelling state interest, and that, although the appellee presented
"several compelling justifications for state presence in the area of abortions," the statutes outstripped these justifications
and swept "far beyond any areas of compelling state interest." 314 F. Supp., at 1222-1223. Appellant and appellee both
contest that holding. Appellant, as has been indicated, claims an absolute right that bars any state imposition of criminal

51
penalties in the area. Appellee argues that the State's determination to recognize and protect prenatal life from and after
conception constitutes a compelling state interest. As noted above, we do not agree fully with either formulation.
A. The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth
Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this
suggestion of personhood is established, the appellant's case, of course, collapses, [410 U.S. 113, 157] for the fetus'
right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on
reargument. 51 On the other hand, the appellee conceded on reargument 52 that no case could be cited that holds that a
fetus is a person within the meaning of the Fourteenth Amendment.
The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three
references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." The
word also appears both in the Due Process Clause and in the Equal Protection Clause. "Person" is used in other places in
the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, 2, cl. 2, and 3, cl. 3; in the
Apportionment Clause, Art. I, 2, cl. 3;53 in the Migration and Importation provision, Art. I, 9, cl. 1; in the Emolument
Clause, Art. I, 9, cl. 8; in the Electors provisions, Art. II, 1, cl. 2, and the superseded cl. 3; in the provision outlining
qualifications for the office of President, Art. II, 1, cl. 5; in the Extradition provisions, Art. IV, 2, cl. 2, and the superseded
Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in 2 and 3 of the
Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only
postnatally. None indicates, with any assurance, that it has any possible pre-natal application. 54 [410 U.S. 113, 158]
All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion
practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth Amendment,
does not include the unborn. 55 This is in accord with the results reached in those few cases where the issue has been
squarely presented. McGarvey v. Magee-Womens Hospital, 340 F. Supp. 751 (WD Pa. 1972); Byrn v. New York City
Health & Hospitals Corp., 31 N. Y. 2d 194, 286 N. E. 2d 887 (1972), appeal docketed, No. 72-434; Abele v. Markle, 351 F.
Supp. 224 (Conn. 1972), appeal docketed, No. 72-730. Cf. Cheaney v. State, ___ Ind., at ___, 285 N. E. 2d, at 270;
Montana v. Rogers, 278 F.2d 68, 72 (CA7 1960), aff'd sub nom. Montana v. Kennedy, 366 U.S. 308 (1961); Keeler v.
Superior Court, 2 Cal. 3d 619, 470 P.2d 617 (1970); State v. Dickinson, 28[410 U.S. 113, 159] Ohio St. 2d 65, 275 N. E.
2d 599 (1971). Indeed, our decision in United States v. Vuitch, 402 U.S. 62 (1971), inferentially is to the same effect, for
we there would not have indulged in statutory interpretation favorable to abortion in specified circumstances if the
necessary consequence was the termination of life entitled to Fourteenth Amendment protection.
This conclusion, however, does not of itself fully answer the contentions raised by Texas, and we pass on to other
considerations.
B. The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the
medical definitions of the developing young in the human uterus. See Dorland's Illustrated Medical Dictionary 478-479,
547 (24th ed. 1965). The situation therefore is inherently different from marital intimacy, or bedroom possession of
obscene material, or marriage, or procreation, or education, with which Eisenstadt and Griswold, Stanley, Loving, Skinner,
and Pierce and Meyer were respectively concerned. As we have intimated above, it is reasonable and appropriate for a
State to decide that at some point in time another interest, that of health of the mother or that of potential human life,
becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be
measured accordingly.
Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy,
and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not
resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy,
and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is
not in a position to speculate as to the answer. [410 U.S. 113, 160]
It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has
always been strong support for the view that life does not begin until live birth. This was the belief of the Stoics. 56 It
appears to be the predominant, though not the unanimous, attitude of the Jewish faith. 57 It may be taken to represent
also the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups
that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of
the individual and her family. 58 As we have noted, the common law found greater significance in quickening. Physicians
and their scientific colleagues have regarded that event with less interest and have tended to focus either upon
conception, upon live birth, or upon the interim point at which the fetus becomes "viable," that is, potentially able to live
outside the mother's womb, albeit with artificial aid. 59 Viability is usually placed at about seven months (28 weeks) but
may occur earlier, even at 24 weeks. 60 The Aristotelian theory of "mediate animation," that held sway throughout the
Middle Ages and the Renaissance in Europe, continued to be official Roman Catholic dogma until the 19th century,
despite opposition to this "ensoulment" theory from those in the Church who would recognize the existence of life
from [410 U.S. 113, 161] the moment of conception. 61 The latter is now, of course, the official belief of the Catholic
Church. As one brief amicus discloses, this is a view strongly held by many non-Catholics as well, and by many
physicians. Substantial problems for precise definition of this view are posed, however, by new embryological data that
purport to indicate that conception is a "process" over time, rather than an event, and by new medical techniques such as
menstrual extraction, the "morning-after" pill, implantation of embryos, artificial insemination, and even artificial
wombs. 62
In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins
before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights
are contingent upon live birth. For example, the traditional rule of tort law denied recovery for prenatal injuries even
though the child was born alive. 63 That rule has been changed in almost every jurisdiction. In most States, recovery is
said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though few [410 U.S.

52
113, 162] courts have squarely so held. 64 In a recent development, generally opposed by the commentators, some
States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries. 65 Such
an action, however, would appear to be one to vindicate the parents' interest and is thus consistent with the view that the
fetus, at most, represents only the potentiality of life. Similarly, unborn children have been recognized as acquiring rights
or interests by way of inheritance or other devolution of property, and have been represented by guardians ad
litem. 66 Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn
have never been recognized in the law as persons in the whole sense.
X
In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant
woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving
and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks
medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the
potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman
approaches [410 U.S. 113, 163] term and, at a point during pregnancy, each becomes "compelling."
With respect to the State's important and legitimate interest in the health of the mother, the "compelling" point, in the light
of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established
medical fact, referred to above at 149, that until the end of the first trimester mortality in abortion may be less than
mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the
extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of
permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the
abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it
must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility;
and the like.
This means, on the other hand, that, for the period of pregnancy prior to this "compelling" point, the attending physician, in
consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the
patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free
of interference by the State.
With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so
because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation
protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting
fetal life after viability, it may go so far as to proscribe abortion [410 U.S. 113, 164] during that period, except when it is
necessary to preserve the life or health of the mother.
Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions to those "procured or
attempted by medical advice for the purpose of saving the life of the mother," sweeps too broadly. The statute makes no
distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason,
"saving" the mother's life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional
attack made upon it here.
This conclusion makes it unnecessary for us to consider the additional challenge to the Texas statute asserted on grounds
of vagueness. See United States v. Vuitch, 402 U.S., at 67 -72.
XI
To summarize and to repeat:
1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on
behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative
of the Due Process Clause of the Fourteenth Amendment.
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left
to the medical judgment of the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the
health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal
health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life [410 U.S. 113,
165] may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical
judgment, for the preservation of the life or health of the mother.
2. The State may define the term "physician," as it has been employed in the preceding paragraphs of this Part XI of this
opinion, to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not
a physician as so defined.
In Doe v. Bolton, post, p. 179, procedural requirements contained in one of the modern abortion statutes are considered.
That opinion and this one, of course, are to be read together. 67
This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and
examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems
of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of
pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates

53
the right of the physician to administer medical treatment according to his professional judgment up to the points where
important[410 U.S. 113, 166] state interests provide compelling justifications for intervention. Up to those points, the
abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest
with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual
remedies, judicial and intra-professional, are available.
XII
Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas abortion statutes, as a unit, must fall.
The exception of Art. 1196 cannot be struck down separately, for then the State would be left with a statute proscribing all
abortion procedures no matter how medically urgent the case.
Although the District Court granted appellant Roe declaratory relief, it stopped short of issuing an injunction against
enforcement of the Texas statutes. The Court has recognized that different considerations enter into a federal court's
decision as to declaratory relief, on the one hand, and injunctive relief, on the other. Zwickler v. Koota, 389 U.S. 241, 252 255 (1967); Dombrowski v. Pfister,380 U.S. 479 (1965). We are not dealing with a statute that, on its face, appears to
abridge free expression, an area of particular concern under Dombrowski and refined in Younger v. Harris, 401 U.S., at
50 .
We find it unnecessary to decide whether the District Court erred in withholding injunctive relief, for we assume the Texas
prosecutorial authorities will give full credence to this decision that the present criminal abortion statutes of that State are
unconstitutional.
The judgment of the District Court as to intervenor Hallford is reversed, and Dr. Hallford's complaint in intervention is
dismissed. In all other respects, the judgment [410 U.S. 113, 167] of the District Court is affirmed. Costs are allowed to
the appellee.
It is so ordered.
[For concurring opinion of MR. CHIEF JUSTICE BURGER, see post, p. 207.]
[For concurring opinion of MR. JUSTICE DOUGLAS, see post, p. 209.]
[For dissenting opinion of MR. JUSTICE WHITE, see post, p. 221.]
Footnotes
[ Footnote 1 ] "Article 1191. Abortion
"If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent
any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and
thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it be
done without her consent, the punishment shall be doubled. By `abortion' is meant that the life of the fetus or embryo shall
be destroyed in the woman's womb or that a premature birth thereof be caused.
"Art. 1192. Furnishing the means
"Whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice.
"Art. 1193. Attempt at abortion
"If the means used shall fail to produce an abortion, the offender is nevertheless guilty of an attempt to produce abortion,
provided [410 U.S. 113, 118] it be shown that such means were calculated to produce that result, and shall be fined not
less than one hundred nor more than one thousand dollars.
"Art. 1194. Murder in producing abortion
"If the death of the mother is occasioned by an abortion so produced or by an attempt to effect the same it is murder."
"Art. 1196. By medical advice
"Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life
of the mother."
The foregoing Articles, together with Art. 1195, compose Chapter 9 of Title 15 of the Penal Code. Article 1195, not
attacked here, reads:
"Art. 1195. Destroying unborn child
"Whoever shall during parturition of the mother destroy the vitality or life in a child in a state of being born and before
actual birth, which child would otherwise have been born alive, shall be confined in the penitentiary for life or for not less
than five years."
[ Footnote 3 ] Long ago, a suggestion was made that the Texas statutes were unconstitutionally vague because of
definitional deficiencies. The Texas Court of Criminal Appeals disposed of that suggestion peremptorily, saying only,
"It is also insisted in the motion in arrest of judgment that the statute is unconstitutional and void in that it does not
sufficiently define or describe the offense of abortion. We do not concur in respect to this question." Jackson v. State, 55
Tex. Cr. R. 79, 89, 115 S. W. 262, 268 (1908).
The same court recently has held again that the State's abortion statutes are not unconstitutionally vague or overbroad.
Thompson v. State (Ct. Crim. App. Tex. 1971), appeal docketed, No. 71-1200. The court held that "the State of Texas has
a compelling interest to protect fetal life"; that Art. 1191 "is designed to protect fetal life"; that the Texas homicide statutes,
particularly Art. 1205 of the Penal Code, are intended to protect a person "in existence by actual birth" and thereby
implicitly recognize other human life that is not "in existence by actual birth"; that the definition of human life is for the
legislature and not the courts; that Art. 1196 "is more definite than the District of Columbia statute upheld in [United States
v.] Vuitch" ( 402 U.S. 62 ); and that the Texas statute "is [410 U.S. 113, 120] not vague and indefinite or overbroad." A
physician's abortion conviction was affirmed.
In Thompson, n. 2, the court observed that any issue as to the burden of proof under the exemption of Art. 1196 "is not
before us." But see Veevers v. State, 172 Tex. Cr. R. 162, 168-169, 354 S. W. 2d 161, 166-167 (1962). Cf. United States v.
Vuitch, 402 U.S. 62, 69 -71 (1971).

54
[ Footnote 4 ] The name is a pseudonym.
[ Footnote 5 ] These names are pseudonyms.
[ Footnote 6 ] The appellee twice states in his brief that the hearing before the District Court was held on July 22, 1970.
Brief for Appellee 13. The docket entries, App. 2, and the transcript, App. 76, reveal this to be an error. The July date
appears to be the time of the reporter's transcription. See App. 77.
[ Footnote 7 ] We need not consider what different result, if any, would follow if Dr. Hallford's intervention were on behalf of
a class. His complaint in intervention does not purport to assert a class suit and makes no reference to any class apart
from an allegation that he "and others similarly situated" must necessarily guess at the meaning of Art. 1196. His
application for leave to intervene goes somewhat further, for it asserts that plaintiff Roe does not adequately protect the
interest of the doctor "and the class of people who are physicians . . . [and] the class of people who are . . . patients . . . ."
The leave application, however, is not the complaint. Despite the District Court's statement to the contrary, 314 F. Supp.,
at 1225, we fail to perceive the essentials of a class suit in the Hallford complaint.
[ Footnote 8 ] A. Castiglioni, A History of Medicine 84 (2d ed. 1947), E. Krumbhaar, translator and editor (hereinafter
Castiglioni).
[ Footnote 9 ] J. Ricci, The Genealogy of Gynaecology 52, 84, 113, 149 (2d ed. 1950) (hereinafter Ricci); L. Lader,
Abortion 75-77 (1966) (hereinafter Lader); K. Niswander, Medical Abortion Practices in the United States, in Abortion and
the Law 37, 38-40 (D. Smith ed. 1967); G. Williams, The Sanctity of Life and the Criminal Law 148 (1957) (hereinafter
Williams); J. Noonan, An Almost Absolute Value in History, in The Morality of Abortion 1, 3-7 (J. Noonan ed. 1970)
(hereinafter Noonan); Quay, Justifiable Abortion - Medical and Legal Foundations (pt. 2), 49 Geo. L. J. 395, 406-422
(1961) (hereinafter Quay).
[ Footnote 20 ] Dorland's Illustrated Medical Dictionary 1261 (24th ed. 1965).
[ Footnote 21 ] E. Coke, Institutes III *50; 1 W. Hawkins, Pleas of the Crown, c. 31, 16 (4th ed. 1762); 1 W. Blackstone,
Commentaries *129-130; M. Hale, Pleas of the Crown 433 (1st Amer. ed. 1847). For discussions of the role of the
quickening concept in English common law, see Lader 78; Noonan 223-226; Means, The Law of New [410 U.S. 113,
133] York Concerning Abortion and the Status of the Foetus, 1664-1968: A Case of Cessation of Constitutionality (pt. 1),
14 N. Y. L. F. 411, 418-428 (1968) (hereinafter Means I); Stern, Abortion: Reform and the Law, 59 J. Crim. L. C. & P. S. 84
(1968) (hereinafter Stern); Quay 430-432; Williams 152.
[ Footnote 22 ] Early philosophers believed that the embryo or fetus did not become formed and begin to live until at least
40 days after conception for a male, and 80 to 90 days for a female. See, for example, Aristotle, Hist. Anim. 7.3.583b;
Gen. Anim. 2.3.736, 2.5.741; Hippocrates, Lib. de Nat. Puer., No. 10. Aristotle's thinking derived from his three-stage
theory of life: vegetable, animal, rational. The vegetable stage was reached at conception, the animal at "animation," and
the rational soon after live birth. This theory, together with the 40/80 day view, came to be accepted by early Christian
thinkers.
The theological debate was reflected in the writings of St. Augustine, who made a distinction between embryo inanimatus,
not yet endowed with a soul, and embryo animatus. He may have drawn upon Exodus 21:22. At one point, however, he
expressed the view that human powers cannot determine the point during fetal development at which the critical change
occurs. See Augustine, De Origine Animae 4.4 (Pub. Law 44.527). See also W. Reany, The Creation of the Human Soul,
c. 2 and 83-86 (1932); Huser, The Crime of Abortion in Canon Law 15 (Catholic Univ. of America, Canon Law Studies No.
162, Washington, D.C., 1942).
Galen, in three treatises related to embryology, accepted the thinking of Aristotle and his followers. Quay 426-427. Later,
Augustine on abortion was incorporated by Gratian into the Decretum, published about 1140. Decretum Magistri Gratiani
2.32.2.7 to 2.32.2.10, [410 U.S. 113, 134] in 1 Corpus Juris Canonici 1122, 1123 (A. Friedburg, 2d ed. 1879). This
Decretal and the Decretals that followed were recognized as the definitive body of canon law until the new Code of 1917.
For discussions of the canon-law treatment, see Means I, pp. 411-412; Noonan 20-26; Quay 426-430; see also J.
Noonan, Contraception: A History of Its Treatment by the Catholic Theologians and Canonists 18-29 (1965).
[ Footnote 23 ] Bracton took the position that abortion by blow or poison was homicide "if the foetus be already formed
and animated, and particularly if it be animated." 2 H. Bracton, De Legibus et Consuetudinibus Angliae 279 (T. Twiss ed.
1879), or, as a later translation puts it, "if the foetus is already formed or quickened, especially if it is quickened," 2 H.
Bracton, On the Laws and Customs of England 341 (S. Thorne ed. 1968). See Quay 431; see also 2 Fleta 60-61 (Book 1,
c. 23) (Selden Society ed. 1955).
[ Footnote 26 ] Means, The Phoenix of Abortional Freedom: Is a Penumbral or Ninth-Amendment Right About to Arise
from the Nineteenth-Century Legislative Ashes of a Fourteenth-Century Common-Law Liberty?, 17 N. Y. L. F. 335 (1971)
(hereinafter Means II). The author examines the two principal precedents cited marginally by Coke, both contrary to his
dictum, and traces the treatment of these and other cases by earlier commentators. He concludes that Coke, who himself
participated as an advocate in an abortion case in 1601, may have intentionally misstated the law. The author even
suggests a reason: Coke's strong feelings against abortion, coupled with his determination to assert common-law
(secular) jurisdiction to assess penalties for an offense that traditionally had been an exclusively ecclesiastical or canonlaw crime. See also Lader 78-79, who notes that some scholars doubt that the common law ever was applied to abortion;
that the English ecclesiastical courts seem to have lost interest in the problem after 1527; and that the preamble to the
English legislation of 1803, 43 Geo. 3, c. 58, 1, referred to in the text, infra, at 136, states that "no adequate means have
been hitherto provided for the prevention and punishment of such offenses."

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[ Footnote 27 ] Commonwealth v. Bangs, 9 Mass. 387, 388 (1812); Commonwealth v. Parker, 50 Mass. (9 Metc.) 263,
265-266 (1845); State v. Cooper, 22 N. J. L. 52, 58 (1849); Abrams v. Foshee, 3 Iowa 274, 278-280 (1856); Smith v.
Gaffard, 31 Ala. 45, 51 (1857); Mitchell v. Commonwealth, 78 Ky. 204, 210 (1879); Eggart v. State, 40 Fla. [410 U.S. 113,
136] 527, 532, 25 So. 144, 145 (1898); State v. Alcorn, 7 Idaho 599, 606, 64 P. 1014, 1016 (1901); Edwards v. State, 79
Neb. 251, 252, 112 N. W. 611, 612 (1907); Gray v. State, 77 Tex. Cr. R. 221, 224, 178 S. W. 337, 338 (1915); Miller v.
Bennett, 190 Va. 162, 169, 56 S. E. 2d 217, 221 (1949). Contra, Mills v. Commonwealth, 13 Pa. 631, 633 (1850); State v.
Slagle, 83 N.C. 630, 632 (1880).
[ Footnote 28 ] See Smith v. State, 33 Me. 48, 55 (1851); Evans v. People, 49 N. Y. 86, 88 (1872); Lamb v. State, 67 Md.
524, 533, 10 A. 208 (1887).
[ Footnote 34 ] Criminal abortion statutes in effect in the States as of 1961, together with historical statutory development
and important judicial interpretations of the state statutes, are cited and quoted in Quay 447-520. See Comment, A Survey
of the Present Statutory and Case Law on Abortion: The Contradictions and the Problems, 1972 U. Ill. L. F. 177, 179,
classifying the abortion statutes and listing 25 States as permitting abortion only if necessary to save or preserve the
mother's life.
[ Footnote 37 ] Fourteen States have adopted some form of the ALI statute. Mr. Justice Clark described some of these
States as having "led the way." Religion, Morality, and Abortion: A Constitutional Appraisal, 2 Loyola U. (L. A.) L. Rev. 1, 11
(1969).
By the end of 1970, four other States had repealed criminal penalties for abortions performed in early pregnancy by a
licensed physician, subject to stated procedural and health requirements. Alaska Stat. 11.15.060 (1970); Haw. Rev. Stat.
453-16 (Supp. 1971); N. Y. Penal Code 125.05, subd. 3 (Supp. 1972-1973); Wash. Rev. Code 9.02.060 to 9.02.080
(Supp. 1972). The precise status of criminal abortion laws in some States is made unclear by recent decisions in state and
federal courts striking down existing state laws, in whole or in part.
[ Footnote 38 ] "Whereas, Abortion, like any other medical procedure, should not be performed when contrary to the best
interests of the patient [410 U.S. 113, 144] since good medical practice requires due consideration for the patient's
welfare and not mere acquiescence to the patient's demand; and
"Whereas, The standards of sound clinical judgment, which, together with informed patient consent should be
determinative according to the merits of each individual case; therefore be it
"RESOLVED, That abortion is a medical procedure and should be performed only by a duly licensed physician and
surgeon in an accredited hospital acting only after consultation with two other physicians chosen because of their
professional competency and in conformance with standards of good medical practice and the Medical Practice Act of his
State; and be it further
"RESOLVED, That no physician or other professional personnel shall be compelled to perform any act which violates his
good medical judgment. Neither physician, hospital, nor hospital personnel shall be required to perform any act violative of
personally-held moral principles. In these circumstances good medical practice requires only that the physician or other
professional personnel withdraw from the case so long as the withdrawal is consistent with good medical practice."
Proceedings of the AMA House of Delegates 220 (June 1970).
[ Footnote 39 ] "The Principles of Medical Ethics of the AMA do not prohibit a physician from performing an abortion that is
performed in accordance with good medical practice and under circumstances that do not violate the laws of the
community in which he practices.
"In the matter of abortions, as of any other medical procedure, the Judicial Council becomes involved whenever there is
alleged violation of the Principles of Medical Ethics as established by the House of Delegates."
[ Footnote 40 ] "UNIFORM ABORTION ACT
"SECTION 1. [Abortion Defined; When Authorized.]
"(a) `Abortion' means the termination of human pregnancy with an intention other than to produce a live birth or to remove
a dead fetus.
"(b) An abortion may be performed in this state only if it is performed:
"(1) by a physician licensed to practice medicine [or osteopathy] in this state or by a physician practicing medicine [or
osteopathy] in the employ of the government of the United States or of this state, [and the abortion is performed [in the
physician's office or in a medical clinic, or] in a hospital approved by the [Department of Health] or operated by the United
States, this state, or any department, agency, or political subdivision of either;] or by a female upon herself upon the
advice of the physician; and
"(2) within 20. weeks after the commencement of the pregnancy [or after 20. weeks only if the physician has reasonable
cause to believe (i) there is a substantial risk that continuance of the pregnancy would endanger the life of the mother or
would gravely impair the physical or mental health of the mother, (ii) that the child would be born with grave physical or
mental defect, or (iii) that [410 U.S. 113, 147] the pregnancy resulted from rape or incest, or illicit intercourse with a girl
under the age of 16 years].
"SECTION 2. [Penalty.] Any person who performs or procures an abortion other than authorized by this Act is guilty of a
[felony] and, upon conviction thereof, may be sentenced to pay a fine not exceeding [$1,000] or to imprisonment [in the
state penitentiary] not exceeding [5 years], or both.
"SECTION 3. [Uniformity of Interpretation.] This Act shall be construed to effectuate its general purpose to make uniform
the law with respect to the subject of this Act among those states which enact it.
"SECTION 4. [Short Title.] This Act may be cited as the Uniform Abortion Act.

56
"SECTION 5. [Severability.] If any provision of this Act or the application thereof to any person or circumstance is held
invalid, the invalidity does not affect other provisions or applications of this Act which can be given effect without the
invalid provision or application, and to this end the provisions of this Act are severable.
"SECTION 6. [Repeal.] The following acts and parts of acts are repealed: "(1) "(2) "(3)
"SECTION 7. [Time of Taking Effect.] This Act shall take effect ________________."
[ Footnote 41 ] "This Act is based largely upon the New York abortion act following a review of the more recent laws on
abortion in several states and upon recognition of a more liberal trend in laws on this subject. Recognition was given also
to the several decisions in state and federal courts which show a further trend toward liberalization of abortion laws,
especially during the first trimester of pregnancy.
"Recognizing that a number of problems appeared in New York, a shorter time period for `unlimited' abortions was
advisable. The [410 U.S. 113, 148] time period was bracketed to permit the various states to insert a figure more in
keeping with the different conditions that might exist among the states. Likewise, the language limiting the place or places
in which abortions may be performed was also bracketed to account for different conditions among the states. In addition,
limitations on abortions after the initial `unlimited' period were placed in brackets so that individual states may adopt all or
any of these reasons, or place further restrictions upon abortions after the initial period.
"This Act does not contain any provision relating to medical review committees or prohibitions against sanctions imposed
upon medical personnel refusing to participate in abortions because of religious or other similar reasons, or the like. Such
provisions, while related, do not directly pertain to when, where, or by whom abortions may be performed; however, the
Act is not drafted to exclude such a provision by a state wishing to enact the same."
[ Footnote 42 ] See, for example, YWCA v. Kugler, 342 F. Supp. 1048, 1074 (N. J. 1972); Abele v. Markle, 342 F. Supp.
800, 805-806 (Conn. 1972) (Newman, J., concurring in result), appeal docketed, No. 72-56; Walsingham v. State, 250
So.2d 857, 863 (Ervin, J., concurring) (Fla. 1971); State v. Gedicke, 43 N. J. L. 86, 90 (1881); Means II 381-382.
[ Footnote 44 ] Potts, Postconceptive Control of Fertility, 8 Int'l J. of G. & O. 957, 967 (1970) (England and Wales);
Abortion Mortality, 20 Morbidity and Mortality 208, 209 (June 12, 1971) (U.S. Dept. of HEW, Public Health Service) (New
York City); Tietze, United States: Therapeutic Abortions, 1963-1968, 59 Studies in Family Planning 5, 7 (1970); Tietze,
Mortality with Contraception and Induced Abortion, 45 Studies in Family Planning 6 (1969) (Japan, Czechoslovakia,
Hungary); Tietze & Lehfeldt, Legal Abortion in Eastern Europe, 175 J. A. M. A. 1149, 1152 (April 1961). Other sources are
discussed in Lader 17-23.
[ Footnote 45 ] See Brief of Amicus National Right to Life Committee; R. Drinan, The Inviolability of the Right to be Born, in
Abortion and the Law 107 (D. Smith ed. 1967); Louisell, Abortion, The Practice of Medicine and the Due Process of Law,
16 U. C. L. A. L. Rev. 233 (1969); Noonan 1.
[ Footnote 49 ] Watson v. State, 9 Tex. App. 237, 244-245 (1880); Moore v. State, 37 Tex. Cr. R. 552, 561, 40 S. W. 287,
290 (1897); Shaw v. State, 73 Tex. Cr. R. 337, 339, 165 S. W. 930, 931 (1914); Fondren v. State, 74 Tex. Cr. R. 552, 557,
169 S. W. 411, 414 (1914); Gray v. State, 77 Tex. Cr. R. 221, 229, 178 S. W. 337, 341 (1915). There is no immunity in
Texas for the father who is not married to the mother. Hammett v. State, 84 Tex. Cr. R. 635, 209 S. W. 661 (1919);
Thompson v. State (Ct. Crim. App. Tex. 1971), appeal docketed, No. 71-1200.
[ Footnote 50 ] See Smith v. State, 33 Me., at 55; In re Vince, 2 N. J. 443, 450, 67 A. 2d 141, 144 (1949). A short
discussion of the modern law on this issue is contained in the Comment to the ALI's Model Penal Code 207.11, at 158 and
nn. 35-37 (Tent. Draft No. 9, 1959).
[ Footnote 53 ] We are not aware that in the taking of any census under this clause, a fetus has ever been counted.
[ Footnote 54 ] When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person, it faces a
dilemma. Neither in Texas nor in any other State are all abortions prohibited. Despite broad proscription, an exception
always exists. The exception contained [410 U.S. 113, 158] in Art. 1196, for an abortion procured or attempted by
medical advice for the purpose of saving the life of the mother, is typical. But if the fetus is a person who is not to be
deprived of life without due process of law, and if the mother's condition is the sole determinant, does not the Texas
exception appear to be out of line with the Amendment's command?
There are other inconsistencies between Fourteenth Amendment status and the typical abortion statute. It has already
been pointed out, n. 49, supra, that in Texas the woman is not a principal or an accomplice with respect to an abortion
upon her. If the fetus is a person, why is the woman not a principal or an accomplice? Further, the penalty for criminal
abortion specified by Art. 1195 is significantly less than the maximum penalty for murder prescribed by Art. 1257 of the
Texas Penal Code. If the fetus is a person, may the penalties be different?
[ Footnote 55 ] Cf. the Wisconsin abortion statute, defining "unborn child" to mean "a human being from the time of
conception until it is born alive," Wis. Stat. 940.04 (6) (1969), and the new Connecticut Statute, Pub. Act No. 1 (May 1972
special session), declaring it to be the public policy of the State and the legislative intent "to protect and preserve human
life from the moment of conception."
[ Footnote 58 ] Amicus Brief for the American Ethical Union et al. For the position of the National Council of Churches and
of other denominations, see Lader 99-101.
[ Footnote 59 ] L. Hellman & J. Pritchard, Williams Obstetrics 493 (14th ed. 1971); Dorland's Illustrated Medical Dictionary
1689 (24th ed. 1965).
[ Footnote 61 ] For discussions of the development of the Roman Catholic position, see D. Callahan, Abortion: Law,
Choice, and Morality 409-447 (1970); Noonan 1.

57
[ Footnote 62 ] See Brodie, The New Biology and the Prenatal Child, 9 J. Family L. 391, 397 (1970); Gorney, The New
Biology and the Future of Man, 15 U. C. L. A. L. Rev. 273 (1968); Note, Criminal Law - Abortion - The "Morning-After Pill"
and Other Pre-Implantation Birth-Control Methods and the Law, 46 Ore. L. Rev. 211 (1967); G. Taylor, The Biological Time
Bomb 32 (1968); A. Rosenfeld, The Second Genesis 138-139 (1969); Smith, Through a Test Tube Darkly: Artificial
Insemination and the Law, 67 Mich. L. Rev. 127 (1968): Note, Artificial Insemination and the Law, 1968 U. Ill. L. F. 203.
[ Footnote 67 ] Neither in this opinion nor in Doe v. Bolton, post, p. 179, do we discuss the father's rights, if any exist in
the constitutional context, in the abortion decision. No paternal right has been asserted in either of the cases, and the
Texas and the Georgia statutes on their face take no cognizance of the father. We are aware that some statutes recognize
the father under certain circumstances. North Carolina, for example, N.C. Gen. Stat. 14-45.1 (Supp. 1971), requires
written permission for the abortion from the husband when the woman is a married minor, that is, when she is less than 18
years of age, 41 N.C. A. G. 489 (1971); if the woman is an unmarried minor, written permission from the parents is
required. We need not now decide whether provisions of this kind are constitutional.
MR. JUSTICE STEWART, concurring.
In 1963, this Court, in Ferguson v. Skrupa, 372 U.S. 726 , purported to sound the death knell for the doctrine of
substantive due process, a doctrine under which many state laws had in the past been held to violate the Fourteenth
Amendment. As Mr. Justice Black's opinion for the Court in Skrupa put it: "We have returned to the original constitutional
proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are
elected to pass laws." Id., at 730. 1
Barely two years later, in Griswold v. Connecticut, 381 U.S. 479 , the Court held a Connecticut birth control law
unconstitutional. In view of what had been so recently said in Skrupa, the Court's opinion in Griswold understandably did
its best to avoid reliance on the Due Process Clause of the Fourteenth Amendment as the ground for decision. Yet, the
Connecticut law did not violate any provision of the Bill of Rights, nor any other specific provision of the Constitution. 2 So
it was clear [410 U.S. 113, 168] to me then, and it is equally clear to me now, that the Griswold decision can be rationally
understood only as a holding that the Connecticut statute substantively invaded the "liberty" that is protected by the Due
Process Clause of the Fourteenth Amendment. 3 As so understood, Griswold stands as one in a long line of pre-Skrupa
cases decided under the doctrine of substantive due process, and I now accept it as such.
"In a Constitution for a free people, there can be no doubt that the meaning of `liberty' must be broad indeed." Board of
Regents v. Roth, 408 U.S. 564, 572 . The Constitution nowhere mentions a specific right of personal choice in matters of
marriage and family life, but the "liberty" protected by the Due Process Clause of the Fourteenth Amendment covers more
than those freedoms explicitly named in the Bill of Rights. See Schware v. Board of Bar Examiners, 353 U.S. 232, 238 239; Pierce v. Society of Sisters, 268 U.S. 510, 534 -535; Meyer v. Nebraska, 262 U.S. 390, 399 -400. Cf. Shapiro v.
Thompson,394 U.S. 618, 629 -630; United States v. Guest, 383 U.S. 745, 757 -758; Carrington v. Rash, 380 U.S. 89, 96 ;
Aptheker v. Secretary of State, 378 U.S. 500, 505 ; Kent v. Dulles, 357 U.S. 116, 127 ; Bolling v. Sharpe, 347 U.S. 497,
499 -500; Truax v. Raich, 239 U.S. 33, 41 . [410 U.S. 113, 169]
As Mr. Justice Harlan once wrote: "[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found
in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a
series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right
to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum
which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and
which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful
scrutiny of the state needs asserted to justify their abridgment." Poe v. Ullman, 367 U.S. 497, 543 (opinion dissenting from
dismissal of appeal) (citations omitted). In the words of Mr. Justice Frankfurter, "Great concepts like . . . `liberty' . . . were
purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and
the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged." National Mutual
Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646 (dissenting opinion).
Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of
the liberties protected by the Due Process Clause of the Fourteenth Amendment. Loving v. Virginia, 388 U.S. 1, 12 ;
Griswold v. Connecticut, supra; Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra. See also Prince v.
Massachusetts, 321 U.S. 158, 166 ; Skinner v. Oklahoma,316 U.S. 535, 541 . As recently as last Term, in Eisenstadt v.
Baird, 405 U.S. 438, 453 , we recognized "the right of the individual, married or single, to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a person [410 U.S. 113, 170] as the decision whether to
bear or beget a child." That right necessarily includes the right of a woman to decide whether or not to terminate her
pregnancy. "Certainly the interests of a woman in giving of her physical and emotional self during pregnancy and the
interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of
significance and personal intimacy than the right to send a child to private school protected in Pierce v. Society of
Sisters, 268 U.S. 510 (1925), or the right to teach a foreign language protected in Meyer v. Nebraska, 262 U.S.
390 (1923)." Abele v. Markle, 351 F. Supp. 224, 227 (Conn. 1972).
Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the
personal liberty protected by the Due Process Clause of the Fourteenth Amendment.
It is evident that the Texas abortion statute infringes that right directly. Indeed, it is difficult to imagine a more complete
abridgment of a constitutional freedom than that worked by the inflexible criminal statute now in force in Texas. The
question then becomes whether the state interests advanced to justify this abridgment can survive the "particularly careful
scrutiny" that the Fourteenth Amendment here requires.
The asserted state interests are protection of the health and safety of the pregnant woman, and protection of the potential
future human life within her. These are legitimate objectives, amply sufficient to permit a State to regulate abortions as it
does other surgical procedures, and perhaps sufficient to permit a State to regulate abortions more stringently or even to

58
prohibit them in the late stages of pregnancy. But such legislation is not before us, and I think the Court today has
thoroughly demonstrated that these state interests cannot constitutionally support the broad abridgment of personal [410
U.S. 113, 171] liberty worked by the existing Texas law. Accordingly, I join the Court's opinion holding that that law is
invalid under the Due Process Clause of the Fourteenth Amendment.
[ Footnote 1 ] Only Mr. Justice Harlan failed to join the Court's opinion, 372 U.S., at 733 .
[ Footnote 2 ] There is no constitutional right of privacy, as such. "[The Fourth] Amendment protects individual privacy
against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at
all. Other provisions of [410 U.S. 113, 168] the Constitution protect personal privacy from other forms of governmental
invasion. But the protection of a person's general right to privacy - his right to be let alone by other people - is, like the
protection of his property and of his very life, left largely to the law of the individual States." Katz v. United States, 389 U.S.
347, 350 -351 (footnotes omitted).
[ Footnote 3 ] This was also clear to Mr. Justice Black, 381 U.S., at 507 (dissenting opinion); to Mr. Justice Harlan, 381
U.S., at 499 (opinion concurring in the judgment); and to MR. JUSTICE WHITE, 381 U.S., at 502 (opinion concurring in
the judgment). See also Mr. Justice Harlan's thorough and thoughtful opinion dissenting from dismissal of the appeal in
Poe v. Ullman, 367 U.S. 497, 522 .
MR. JUSTICE REHNQUIST, dissenting.
The Court's opinion brings to the decision of this troubling question both extensive historical fact and a wealth of legal
scholarship. While the opinion thus commands my respect, I find myself nonetheless in fundamental disagreement with
those parts of it that invalidate the Texas statute in question, and therefore dissent.
I
The Court's opinion decides that a State may impose virtually no restriction on the performance of abortions during the
first trimester of pregnancy. Our previous decisions indicate that a necessary predicate for such an opinion is a plaintiff
who was in her first trimester of pregnancy at some time during the pendency of her law-suit. While a party may vindicate
his own constitutional rights, he may not seek vindication for the rights of others. Moose Lodge v. Irvis, 407 U.S.
163 (1972); Sierra Club v. Morton, 405 U.S. 727 (1972). The Court's statement of facts in this case makes clear, however,
that the record in no way indicates the presence of such a plaintiff. We know only that plaintiff Roe at the time of filing her
complaint was a pregnant woman; for aught that appears in this record, she may have been in her last trimester of
pregnancy as of the date the complaint was filed.
Nothing in the Court's opinion indicates that Texas might not constitutionally apply its proscription of abortion as written to
a woman in that stage of pregnancy. Nonetheless, the Court uses her complaint against the Texas statute as a fulcrum for
deciding that States may [410 U.S. 113, 172] impose virtually no restrictions on medical abortions performed during the
first trimester of pregnancy. In deciding such a hypothetical lawsuit, the Court departs from the longstanding admonition
that it should never "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be
applied." Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration,113 U.S. 33, 39 (1885). See also
Ashwander v. TVA, 297 U.S. 288, 345 (1936) (Brandeis, J., concurring).
II
Even if there were a plaintiff in this case capable of litigating the issue which the Court decides, I would reach a conclusion
opposite to that reached by the Court. I have difficulty in concluding, as the Court does, that the right of "privacy" is
involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed
physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not "private" in the ordinary
usage of that word. Nor is the "privacy" that the Court finds here even a distant relative of the freedom from searches and
seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to
privacy. Katz v. United States, 389 U.S. 347 (1967).
If the Court means by the term "privacy" no more than that the claim of a person to be free from unwanted state regulation
of consensual transactions may be a form of "liberty" protected by the Fourteenth Amendment, there is no doubt that
similar claims have been upheld in our earlier decisions on the basis of that liberty. I agree with the statement of MR.
JUSTICE STEWART in his concurring opinion that the "liberty," against deprivation of which without due process the
Fourteenth [410 U.S. 113, 173] Amendment protects, embraces more than the rights found in the Bill of Rights. But that
liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test
traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a
rational relation to a valid state objective. Williamson v. Lee Optical Co., 348 U.S. 483, 491 (1955). The Due Process
Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact
laws such as this. If the Texas statute were to prohibit an abortion even where the mother's life is in jeopardy, I have little
doubt that such a statute would lack a rational relation to a valid state objective under the test stated in Williamson, supra.
But the Court's sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under
that standard, and the conscious weighing of competing factors that the Court's opinion apparently substitutes for the
established test is far more appropriate to a legislative judgment than to a judicial one.
The Court eschews the history of the Fourteenth Amendment in its reliance on the "compelling state interest" test. See
Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 179 (1972) (dissenting opinion). But the Court adds a new wrinkle to
this test by transposing it from the legal considerations associated with the Equal Protection Clause of the Fourteenth
Amendment to this case arising under the Due Process Clause of the Fourteenth Amendment. Unless I misapprehend the
consequences of this transplanting of the "compelling state interest test," the Court's opinion will accomplish the
seemingly impossible feat of leaving this area of the law more confused than it found it. [410 U.S. 113, 174]

59
While the Court's opinion quotes from the dissent of Mr. Justice Holmes in Lochner v. New York, 198 U.S. 45, 74 (1905),
the result it reaches is more closely attuned to the majority opinion of Mr. Justice Peckham in that case. As in Lochner and
similar cases applying substantive due process standards to economic and social welfare legislation, the adoption of the
compelling state interest standard will inevitably require this Court to examine the legislative policies and pass on the
wisdom of these policies in the very process of deciding whether a particular state interest put forward may or may not be
"compelling." The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the
State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the
intent of the drafters of the Fourteenth Amendment.
The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on
abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not "so rooted
in the traditions and conscience of our people as to be ranked as fundamental," Snyder v. Massachusetts, 291 U.S. 97,
105 (1934). Even today, when society's views on abortion are changing, the very existence of the debate is evidence that
the "right" to an abortion is not so universally accepted as the appellant would have us believe.
To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was
apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with
abortion was enacted by the Connecticut Legislature. Conn. Stat., Tit. 22, 14, 16. By the time of the adoption of the
Fourteenth [410 U.S. 113, 175] Amendment in 1868, there were at least 36 laws enacted by state or territorial
legislatures limiting abortion. 1 While many States have amended or updated [410 U.S. 113, 176] their laws, 21 of the
laws on the books in 1868 remain in effect today. 2 Indeed, the Texas statute struck down today was, as the majority
notes, first enacted in 1857 [410 U.S. 113, 177] and "has remained substantially unchanged to the present time." Ante, at
119.
There apparently was no question concerning the validity of this provision or of any of the other state statutes when the
Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to
have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.
III
Even if one were to agree that the case that the Court decides were here, and that the enunciation of the substantive
constitutional law in the Court's opinion were proper, the actual disposition of the case by the Court is still difficult to justify.
The Texas statute is struck down in toto, even though the Court apparently concedes that at later periods of pregnancy
Texas might impose these selfsame statutory limitations on abortion. My understanding of past practice is that a statute
found [410 U.S. 113, 178] to be invalid as applied to a particular plaintiff, but not unconstitutional as a whole, is not simply
"struck down" but is, instead, declared unconstitutional as applied to the fact situation before the Court. Yick Wo v.
Hopkins, 118 U.S. 356 (1886); Street v. New York, 394 U.S. 576 (1969).
For all of the foregoing reasons, I respectfully dissent.

60
G.R. No. L-19550

June 19, 1967

HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL BECK, petitioners,
vs.
HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE; JOSE LUKBAN, in his capacity as Acting
Director, National Bureau of Investigation; SPECIAL PROSECUTORS PEDRO D. CENZON, EFREN I. PLANA and
MANUEL VILLAREAL, JR. and ASST. FISCAL MANASES G. REYES; JUDGE AMADO ROAN, Municipal Court of
Manila; JUDGE ROMAN CANSINO, Municipal Court of Manila; JUDGE HERMOGENES CALUAG, Court of First
Instance of Rizal-Quezon City Branch, and JUDGE DAMIAN JIMENEZ, Municipal Court of Quezon City, respondents.
Paredes, Poblador, Cruz and Nazareno and Meer, Meer and Meer and Juan T. David for petitioners.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de Castro, Assistant Solicitor General
Frine C. Zaballero, Solicitor Camilo D. Quiason and Solicitor C. Padua for respondents.
CONCEPCION, C.J.:
Upon application of the officers of the government named on the margin 1 hereinafter referred to as RespondentsProsecutors several judges2 hereinafter referred to as Respondents-Judges issued, on different dates, 3 a total of 42
search warrants against petitioners herein4 and/or the corporations of which they were officers,5 directed to the any peace
officer, to search the persons above-named and/or the premises of their offices, warehouses and/or residences, and to seize
and take possession of the following personal property to wit:
Books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals, portfolios, credit
journals, typewriters, and other documents and/or papers showing all business transactions including disbursements
receipts, balance sheets and profit and loss statements and Bobbins (cigarette wrappers).
as "the subject of the offense; stolen or embezzled and proceeds or fruits of the offense," or "used or intended to be used as
the means of committing the offense," which is described in the applications adverted to above as "violation of Central Bank
Laws, Tariff and Customs Laws, Internal Revenue (Code) and the Revised Penal Code."
Alleging that the aforementioned search warrants are null and void, as contravening the Constitution and the Rules of Court
because, inter alia: (1) they do not describe with particularity the documents, books and things to be seized; (2) cash
money, not mentioned in the warrants, were actually seized; (3) the warrants were issued to fish evidence against the
aforementioned petitioners in deportation cases filed against them; (4) the searches and seizures were made in an illegal
manner; and (5) the documents, papers and cash money seized were not delivered to the courts that issued the warrants, to
be disposed of in accordance with law on March 20, 1962, said petitioners filed with the Supreme Court this original action
for certiorari, prohibition, mandamus and injunction, and prayed that, pending final disposition of the present case, a writ of
preliminary injunction be issued restraining Respondents-Prosecutors, their agents and /or representatives from using the
effects seized as aforementioned or any copies thereof, in the deportation cases already adverted to, and that, in due
course, thereafter, decision be rendered quashing the contested search warrants and declaring the same null and void, and
commanding the respondents, their agents or representatives to return to petitioners herein, in accordance with Section 3,
Rule 67, of the Rules of Court, the documents, papers, things and cash moneys seized or confiscated under the search
warrants in question.
In their answer, respondents-prosecutors alleged, 6 (1) that the contested search warrants are valid and have been issued in
accordance with law; (2) that the defects of said warrants, if any, were cured by petitioners' consent; and (3) that, in any
event, the effects seized are admissible in evidence against herein petitioners, regardless of the alleged illegality of the
aforementioned searches and seizures.
On March 22, 1962, this Court issued the writ of preliminary injunction prayed for in the petition. However, by resolution
dated June 29, 1962, the writ was partially lifted or dissolved, insofar as the papers, documents and things seized from the
offices of the corporations above mentioned are concerned; but, the injunction was maintained as regards the papers,
documents and things found and seized in the residences of petitioners herein. 7
Thus, the documents, papers, and things seized under the alleged authority of the warrants in question may be split into two
(2) major groups, namely: (a) those found and seized in the offices of the aforementioned corporations, and (b) those found
and seized in the residences of petitioners herein.
As regards the first group, we hold that petitioners herein have no cause of action to assail the legality of the contested
warrants and of the seizures made in pursuance thereof, for the simple reason that said corporations have their respective
personalities, separate and distinct from the personality of herein petitioners, regardless of the amount of shares of stock or
of the interest of each of them in said corporations, and whatever the offices they hold therein may be. 8 Indeed, it is well
settled that the legality of a seizure can be contested only by the party whose rights have been impaired thereby,9 and that
the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties. 10 Consequently,
petitioners herein may not validly object to the use in evidence against them of the documents, papers and things seized
from the offices and premises of the corporations adverted to above, since the right to object to the admission of said papers
in evidence belongsexclusively to the corporations, to whom the seized effects belong, and may not be invoked by the
corporate officers in proceedings against them in their individual capacity. 11 Indeed, it has been held:
. . . that the Government's action in gaining possession of papers belonging to the corporation did not relate to nor
did it affect the personal defendants. If these papers were unlawfully seized and thereby the constitutional rights of

61
or any one were invaded, they were the rights of the corporation and not the rights of the other defendants. Next, it is
clear that a question of the lawfulness of a seizure can be raised only by one whose rights have been invaded.
Certainly, such a seizure, if unlawful, could not affect the constitutional rights of defendants whose property had not
been seized or the privacy of whose homes had not been disturbed; nor could they claim for themselves the benefits
of the Fourth Amendment, when its violation, if any, was with reference to the rights of another. Remus vs. United
States (C.C.A.)291 F. 501, 511. It follows, therefore, that the question of the admissibility of the evidence based on
an alleged unlawful search and seizure does not extend to the personal defendants but
embraces only the corporation whose property was taken. . . . (A Guckenheimer & Bros. Co. vs. United States,
[1925] 3 F. 2d. 786, 789, Emphasis supplied.)
With respect to the documents, papers and things seized in the residences of petitioners herein, the aforementioned
resolution of June 29, 1962, lifted the writ of preliminary injunction previously issued by this Court, 12 thereby, in
effect, restraining herein Respondents-Prosecutors from using them in evidence against petitioners herein.
In connection with said documents, papers and things, two (2) important questions need be settled, namely: (1) whether the
search warrants in question, and the searches and seizures made under the authority thereof, are valid or not, and (2) if the
answer to the preceding question is in the negative, whether said documents, papers and things may be used in evidence
against petitioners herein.1wph1.t
Petitioners maintain that the aforementioned search warrants are in the nature of general warrants and that accordingly, the
seizures effected upon the authority there of are null and void. In this connection, the Constitution 13 provides:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches
and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined 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.
Two points must be stressed in connection with this constitutional mandate, namely: (1) that no warrant shall issue but upon
probable cause, to be determined by the judge in the manner set forth in said provision; and (2) that the warrant
shall particularly describe the things to be seized.
None of these requirements has been complied with in the contested warrants. Indeed, the same were issued upon
applications stating that the natural and juridical person therein named had committed a "violation of Central Ban Laws, Tariff
and Customs Laws, Internal Revenue (Code) and Revised Penal Code." In other words, nospecific offense had been alleged
in said applications. The averments thereof with respect to the offense committed were abstract. As a consequence, it
was impossible for the judges who issued the warrants to have found the existence of probable cause, for the same
presupposes the introduction of competent proof that the party against whom it is sought has performed particular acts, or
committed specific omissions, violating a given provision of our criminal laws. As a matter of fact, the applications involved in
this case do not allege any specific acts performed by herein petitioners. It would be the legal heresy, of the highest order, to
convict anybody of a "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal
Code," as alleged in the aforementioned applications without reference to any determinate provision of said laws or
To uphold the validity of the warrants in question would be to wipe out completely one of the most fundamental rights
guaranteed in our Constitution, for it would place the sanctity of the domicile and the privacy of communication and
correspondence at the mercy of the whims caprice or passion of peace officers. This is precisely the evil sought to be
remedied by the constitutional provision above quoted to outlaw the so-called general warrants. It is not difficult to imagine
what would happen, in times of keen political strife, when the party in power feels that the minority is likely to wrest it, even
though by legal means.
Such is the seriousness of the irregularities committed in connection with the disputed search warrants, that this Court
deemed it fit to amend Section 3 of Rule 122 of the former Rules of Court 14 by providing in its counterpart, under the
Revised Rules of Court 15 that "a search warrant shall not issue but upon probable cause in connection with one specific
offense." Not satisfied with this qualification, the Court added thereto a paragraph, directing that "no search warrant shall
issue for more than one specific offense."
The grave violation of the Constitution made in the application for the contested search warrants was compounded by the
description therein made of the effects to be searched for and seized, to wit:
Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers, portfolios, credit
journals, typewriters, and other documents and/or papers showing all business transactions including disbursement
receipts, balance sheets and related profit and loss statements.
Thus, the warrants authorized the search for and seizure of records pertaining to all business transactions of petitioners
herein, regardless of whether the transactions were legal or illegal. The warrants sanctioned the seizure of all records of the
petitioners and the aforementioned corporations, whatever their nature, thus openly contravening the explicit command of
our Bill of Rights that the things to be seized be particularly described as well as tending to defeat its major objective:
the elimination of general warrants.
Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-Prosecutors maintain that, even if the searches and
seizures under consideration were unconstitutional, the documents, papers and things thus seized are admissible in
evidence against petitioners herein. Upon mature deliberation, however, we are unanimously of the opinion that the position

62
taken in the Moncado case must be abandoned. Said position was in line with the American common law rule, that the
criminal should not be allowed to go free merely "because the constable has blundered," 16 upon the theory that the
constitutional prohibition against unreasonable searches and seizures is protected by means other than the exclusion of
evidence unlawfully obtained, 17 such as the common-law action for damages against the searching officer, against the party
who procured the issuance of the search warrant and against those assisting in the execution of an illegal search, their
criminal punishment, resistance, without liability to an unlawful seizure, and such other legal remedies as may be provided
by other laws.
However, most common law jurisdictions have already given up this approach and eventually adopted the exclusionary rule,
realizing that this is the only practical means of enforcing the constitutional injunction against unreasonable searches and
seizures. In the language of Judge Learned Hand:
As we understand it, the reason for the exclusion of evidence competent as such, which has been unlawfully
acquired, is that exclusion is the only practical way of enforcing the constitutional privilege. In earlier times the action
of trespass against the offending official may have been protection enough; but that is true no longer. Only in case
the prosecution which itself controls the seizing officials, knows that it cannot profit by their wrong will that wrong be
repressed.18
In fact, over thirty (30) years before, the Federal Supreme Court had already declared:
If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an
offense, the protection of the 4th Amendment, declaring his rights to be secure against such searches and seizures,
is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The
efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided
by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their
embodiment in the fundamental law of the land.19
This view was, not only reiterated, but, also, broadened in subsequent decisions on the same Federal Court. 20After
reviewing previous decisions thereon, said Court held, in Mapp vs. Ohio (supra.):
. . . Today we once again examine the Wolf's constitutional documentation of the right of privacy free from
unreasonable state intrusion, and after its dozen years on our books, are led by it to close the only courtroom door
remaining open to evidence secured by official lawlessness in flagrant abuse of that basic right, reserved to all
persons as a specific guarantee against that very same unlawful conduct. We hold that all evidence obtained by
searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a State.
Since the Fourth Amendment's right of privacy has been declared enforceable against the States through the Due
Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as it used
against the Federal Government. Were it otherwise, then just as without the Weeks rule the assurance against
unreasonable federal searches and seizures would be "a form of words," valueless and underserving of mention in a
perpetual charter of inestimable human liberties, so too, without that rule the freedom from state invasions of privacy
would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means of
coercing evidence as not to permit this Court's high regard as a freedom "implicit in the concept of ordered liberty."
At the time that the Court held in Wolf that the amendment was applicable to the States through the Due Process
Clause, the cases of this Court as we have seen, had steadfastly held that as to federal officers the Fourth
Amendment included the exclusion of the evidence seized in violation of its provisions. Even Wolf "stoutly adhered"
to that proposition. The right to when conceded operatively enforceable against the States, was not susceptible of
destruction by avulsion of the sanction upon which its protection and enjoyment had always been deemed
dependent under the Boyd, Weeks and Silverthorne Cases. Therefore, in extending the substantive protections of
due process to all constitutionally unreasonable searches state or federal it was logically and constitutionally
necessarily that the exclusion doctrine an essential part of the right to privacy be also insisted upon as an
essential ingredient of the right newly recognized by the Wolf Case. In short, the admission of the new constitutional
Right by Wolf could not tolerate denial of its most important constitutional privilege, namely, the exclusion of the
evidence which an accused had been forced to give by reason of the unlawful seizure. To hold otherwise is to grant
the right but in reality to withhold its privilege and enjoyment. Only last year the Court itself recognized that the
purpose of the exclusionary rule to "is to deter to compel respect for the constitutional guaranty in the only
effectively available way by removing the incentive to disregard it" . . . .
The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional restraints
on which the liberties of the people rest. Having once recognized that the right to privacy embodied in the Fourth
Amendment is enforceable against the States, and that the right to be secure against rude invasions of privacy by
state officers is, therefore constitutional in origin, we can no longer permit that right to remain an empty promise.
Because it is enforceable in the same manner and to like effect as other basic rights secured by its Due Process
Clause, we can no longer permit it to be revocable at the whim of any police officer who, in the name of law
enforcement itself, chooses to suspend its enjoyment. Our decision, founded on reason and truth, gives to the
individual no more than that which the Constitution guarantees him to the police officer no less than that to which
honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of
justice. (emphasis ours.)
Indeed, the non-exclusionary rule is contrary, not only to the letter, but also, to the spirit of the constitutional injunction
against unreasonable searches and seizures. To be sure, if the applicant for a search warrant has competent evidence to

63
establish probable cause of the commission of a given crime by the party against whom the warrant is intended, then there is
no reason why the applicant should not comply with the requirements of the fundamental law. Upon the other hand, if he has
no such competent evidence, then it is not possible for the Judge to find that there is probable cause, and, hence, no
justification for the issuance of the warrant. The only possible explanation (not justification) for its issuance is the necessity
of fishing evidence of the commission of a crime. But, then, this fishing expedition is indicative of the absence of evidence to
establish a probable cause.
Moreover, the theory that the criminal prosecution of those who secure an illegal search warrant and/or make unreasonable
searches or seizures would suffice to protect the constitutional guarantee under consideration, overlooks the fact that
violations thereof are, in general, committed By agents of the party in power, for, certainly, those belonging to the minority
could not possibly abuse a power they do not have. Regardless of the handicap under which the minority usually but,
understandably finds itself in prosecuting agents of the majority, one must not lose sight of the fact that the psychological
and moral effect of the possibility 21 of securing their conviction, is watered down by the pardoning power of the party for
whose benefit the illegality had been committed.
In their Motion for Reconsideration and Amendment of the Resolution of this Court dated June 29, 1962, petitioners allege
that Rooms Nos. 81 and 91 of Carmen Apartments, House No. 2008, Dewey Boulevard, House No. 1436, Colorado Street,
and Room No. 304 of the Army-Navy Club, should be included among the premises considered in said Resolution as
residences of herein petitioners, Harry S. Stonehill, Robert P. Brook, John J. Brooks and Karl Beck, respectively, and that,
furthermore, the records, papers and other effects seized in the offices of the corporations above referred to include personal
belongings of said petitioners and other effects under their exclusive possession and control, for the exclusion of which they
have a standing under the latest rulings of the federal courts of federal courts of the United States. 22
We note, however, that petitioners' theory, regarding their alleged possession of and control over the aforementioned
records, papers and effects, and the alleged "personal" nature thereof, has Been Advanced, notin their petition or amended
petition herein, but in the Motion for Reconsideration and Amendment of the Resolution of June 29, 1962. In other words,
said theory would appear to be readjustment of that followed in said petitions, to suit the approach intimated in the
Resolution sought to be reconsidered and amended. Then, too, some of the affidavits or copies of alleged affidavits attached
to said motion for reconsideration, or submitted in support thereof, contain either inconsistent allegations, or allegations
inconsistent with the theory now advanced by petitioners herein.
Upon the other hand, we are not satisfied that the allegations of said petitions said motion for reconsideration, and the
contents of the aforementioned affidavits and other papers submitted in support of said motion, have sufficiently established
the facts or conditions contemplated in the cases relied upon by the petitioners; to warrant application of the views therein
expressed, should we agree thereto. At any rate, we do not deem it necessary to express our opinion thereon, it being best
to leave the matter open for determination in appropriate cases in the future.
We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is hereby, abandoned; that the warrants for
the search of three (3) residences of herein petitioners, as specified in the Resolution of June 29, 1962, are null and void;
that the searches and seizures therein made are illegal; that the writ of preliminary injunction heretofore issued, in
connection with the documents, papers and other effects thus seized in said residences of herein petitioners is hereby made
permanent; that the writs prayed for are granted, insofar as the documents, papers and other effects so seized in the
aforementioned residences are concerned; that the aforementioned motion for Reconsideration and Amendment should be,
as it is hereby, denied; and that the petition herein is dismissed and the writs prayed for denied, as regards the documents,
papers and other effects seized in the twenty-nine (29) places, offices and other premises enumerated in the same
Resolution, without special pronouncement as to costs.
It is so ordered.
Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.
CASTRO, J., concurring and dissenting:
From my analysis of the opinion written by Chief Justice Roberto Concepcion and from the import of the deliberations of the
Court on this case, I gather the following distinct conclusions:
1. All the search warrants served by the National Bureau of Investigation in this case are general warrants and are
therefore proscribed by, and in violation of, paragraph 3 of section 1 of Article III (Bill of Rights) of the Constitution;
2. All the searches and seizures conducted under the authority of the said search warrants were consequently
illegal;
3. The non-exclusionary rule enunciated in Moncado vs. People, 80 Phil. 1, should be, and is declared, abandoned;
4. The search warrants served at the three residences of the petitioners are expressly declared null and void the
searches and seizures therein made are expressly declared illegal; and the writ of preliminary injunction heretofore
issued against the use of the documents, papers and effect seized in the said residences is made permanent; and
5. Reasoning that the petitioners have not in their pleadings satisfactorily demonstrated that they have legal standing
to move for the suppression of the documents, papers and effects seized in the places other than the three

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residences adverted to above, the opinion written by the Chief Justice refrains from expresslydeclaring as null and
void the such warrants served at such other places and as illegal the searches and seizures made therein, and
leaves "the matter open for determination in appropriate cases in the future."
It is precisely the position taken by the Chief Justice summarized in the immediately preceding paragraph (numbered 5) with
which I am not in accord.
I do not share his reluctance or unwillingness to expressly declare, at this time, the nullity of the search warrants served at
places other than the three residences, and the illegibility of the searches and seizures conducted under the authority
thereof. In my view even the exacerbating passions and prejudices inordinately generated by the environmental political and
moral developments of this case should not deter this Court from forthrightly laying down the law not only for this case but as
well for future cases and future generations. All the search warrants, without exception, in this case are admittedly general,
blanket and roving warrants and are therefore admittedly and indisputably outlawed by the Constitution; and the searches
and seizures made were therefore unlawful. That the petitioners, let us assume in gratia argumente, have no legal standing
to ask for the suppression of the papers, things and effects seized from places other than their residences, to my mind,
cannot in any manner affect, alter or otherwise modify the intrinsic nullity of the search warrants and the intrinsic illegality of
the searches and seizures made thereunder. Whether or not the petitioners possess legal standing the said warrants are
void and remain void, and the searches and seizures were illegal and remain illegal. No inference can be drawn from the
words of the Constitution that "legal standing" or the lack of it is a determinant of the nullity or validity of a search warrant or
of the lawfulness or illegality of a search or seizure.
On the question of legal standing, I am of the conviction that, upon the pleadings submitted to this Court the petitioners have
the requisite legal standing to move for the suppression and return of the documents, papers and effects that were seized
from places other than their family residences.
Our constitutional provision on searches and seizures was derived almost verbatim from the Fourth Amendment to the
United States Constitution. In the many years of judicial construction and interpretation of the said constitutional provision,
our courts have invariably regarded as doctrinal the pronouncement made on the Fourth Amendment by federal courts,
especially the Federal Supreme Court and the Federal Circuit Courts of Appeals.
The U.S. doctrines and pertinent cases on standing to move for the suppression or return of documents, papers and effects
which are the fruits of an unlawful search and seizure, may be summarized as follows; (a) ownership of documents, papers
and effects gives "standing;" (b) ownership and/or control or possession actual or constructive of premises searched
gives "standing"; and (c) the "aggrieved person" doctrine where the search warrant and the sworn application for search
warrant are "primarily" directed solely and exclusively against the "aggrieved person," gives "standing."
An examination of the search warrants in this case will readily show that, excepting three, all were directed against the
petitioners personally. In some of them, the petitioners were named personally, followed by the designation, "the President
and/or General Manager" of the particular corporation. The three warrants excepted named three corporate defendants. But
the "office/house/warehouse/premises" mentioned in the said three warrants were also the same
"office/house/warehouse/premises" declared to be owned by or under the control of the petitioners in all the other search
warrants directed against the petitioners and/or "the President and/or General Manager" of the particular corporation. (see
pages 5-24 of Petitioners' Reply of April 2, 1962). The searches and seizures were to be made, and were actually made, in
the "office/house/warehouse/premises" owned by or under the control of the petitioners.
Ownership of matters seized gives "standing."
Ownership of the properties seized alone entitles the petitioners to bring a motion to return and suppress, and gives them
standing as persons aggrieved by an unlawful search and seizure regardless of their location at the time of seizure. Jones
vs. United States, 362 U.S. 257, 261 (1960) (narcotics stored in the apartment of a friend of the defendant); Henzel vs.
United States, 296 F. 2d. 650, 652-53 (5th Cir. 1961), (personal and corporate papers of corporation of which the defendant
was president), United States vs. Jeffers, 342 U.S. 48 (1951) (narcotics seized in an apartment not belonging to the
defendant); Pielow vs. United States, 8 F. 2d 492, 493 (9th Cir. 1925) (books seized from the defendant's sister but
belonging to the defendant); Cf. Villano vs. United States, 310 F. 2d 680, 683 (10th Cir. 1962) (papers seized in desk neither
owned by nor in exclusive possession of the defendant).
In a very recent case (decided by the U.S. Supreme Court on December 12, 1966), it was held that under the constitutional
provision against unlawful searches and seizures, a person places himself or his property within a constitutionally protected
area, be it his home or his office, his hotel room or his automobile:
Where the argument falls is in its misapprehension of the fundamental nature and scope of Fourth Amendment
protection. What the Fourth Amendment protects is the security a man relies upon when heplaces himself or his
property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile. There
he is protected from unwarranted governmental intrusion. And when he puts some thing in his filing cabinet, in his
desk drawer, or in his pocket, he has the right to know it will be secure from an unreasonable search or an
unreasonable seizure. So it was that the Fourth Amendment could not tolerate the warrantless search of the hotel
room in Jeffers, the purloining of the petitioner's private papers in Gouled, or the surreptitious electronic surveilance
in Silverman. Countless other cases which have come to this Court over the years have involved a myriad of
differing factual contexts in which the protections of the Fourth Amendment have been appropriately invoked. No
doubt, the future will bring countless others. By nothing we say here do we either foresee or foreclose factual
situations to which the Fourth Amendment may be applicable. (Hoffa vs. U.S., 87 S. Ct. 408 (December 12, 1966).

65
See also U.S. vs. Jeffers, 342 U.S. 48, 72 S. Ct. 93 (November 13, 1951). (Emphasis supplied).
Control of premises searched gives "standing."
Independent of ownership or other personal interest in the records and documents seized, the petitioners have standing to
move for return and suppression by virtue of their proprietary or leasehold interest in many of the premises searched. These
proprietary and leasehold interests have been sufficiently set forth in their motion for reconsideration and need not be
recounted here, except to emphasize that the petitioners paid rent, directly or indirectly, for practically all the premises
searched (Room 91, 84 Carmen Apts; Room 304, Army & Navy Club; Premises 2008, Dewey Boulevard; 1436 Colorado
Street); maintained personal offices within the corporate offices (IBMC, USTC); had made improvements or furnished such
offices; or had paid for the filing cabinets in which the papers were stored (Room 204, Army & Navy Club); and individually,
or through their respective spouses, owned the controlling stock of the corporations involved. The petitioners' proprietary
interest in most, if not all, of the premises searched therefore independently gives them standing to move for the return and
suppression of the books, papers and affects seized therefrom.
In Jones vs. United States, supra, the U.S. Supreme Court delineated the nature and extent of the interest in the searched
premises necessary to maintain a motion to suppress. After reviewing what it considered to be the unduly technical standard
of the then prevailing circuit court decisions, the Supreme Court said (362 U.S. 266):
We do not lightly depart from this course of decisions by the lower courts. We are persuaded, however, that it is
unnecessarily and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable
searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private
property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is
largely historical. Even in the area from which they derive, due consideration has led to the discarding of those
distinctions in the homeland of the common law. See Occupiers' Liability Act, 1957, 5 and 6 Eliz. 2, c. 31, carrying
out Law Reform Committee, Third Report, Cmd. 9305. Distinctions such as those between "lessee", "licensee,"
"invitee," "guest," often only of gossamer strength, ought not be determinative in fashioning procedures ultimately
referable to constitutional safeguards. See also Chapman vs. United States, 354 U.S. 610, 616-17 (1961).
It has never been held that a person with requisite interest in the premises searched must own the property seized in order
to have standing in a motion to return and suppress. In Alioto vs. United States, 216 F. Supp. 48 (1963), a Bookkeeper for
several corporations from whose apartment the corporate records were seized successfully moved for their return. In United
States vs. Antonelli, Fireworks Co., 53 F. Supp. 870, 873 (W D. N. Y. 1943), the corporation's president successfully moved
for the return and suppression is to him of both personal and corporate documents seized from his home during the course
of an illegal search:
The lawful possession by Antonelli of documents and property, "either his own or the corporation's was entitled to
protection against unreasonable search and seizure. Under the circumstances in the case at bar, the search and
seizure were unreasonable and unlawful. The motion for the return of seized article and the suppression of the
evidence so obtained should be granted. (Emphasis supplied).
Time was when only a person who had property in interest in either the place searched or the articles seize had the
necessary standing to invoke the protection of the exclusionary rule. But in MacDonald vs. Unite States, 335 U.S. 461
(1948), Justice Robert Jackson joined by Justice Felix Frankfurter, advanced the view that "even a guest may expect the
shelter of the rooftree he is under against criminal intrusion." This view finally became the official view of the U.S. Supreme
Court and was articulated in United States vs. Jeffers, 432 U.S 48 (1951). Nine years later, in 1960, in Jones vs. Unite
States, 362 U.S. 257, 267, the U.S. Supreme Court went a step further. Jones was a mere guest in the apartment unlawfully
searched but the Court nonetheless declared that the exclusionary rule protected him as well. The concept of "person
aggrieved by an unlawful search and seizure" was enlarged to include "anyone legitimately on premise where the search
occurs."
Shortly after the U.S. Supreme Court's Jones decision the U.S. Court of Appeals for the Fifth Circuit held that the defendant
organizer, sole stockholder and president of a corporation had standing in a mail fraud prosecution against him to demand
the return and suppression of corporate property. Henzel vs. United States, 296 F 2d 650, 652 (5th Cir. 1961), supra. The
court conclude that the defendant had standing on two independent grounds: First he had a sufficient interest in the
property seized, and second he had an adequate interest in the premises searched (just like in the case at bar). A postal
inspector had unlawfully searched the corporation' premises and had seized most of the corporation's book and records.
Looking to Jones, the court observed:
Jones clearly tells us, therefore, what is not required qualify one as a "person aggrieved by an unlawful
search and seizure." It tells us that appellant should not have been precluded from objecting to the Postal
Inspector's search and seizure of the corporation's books and records merely because the appellant did not
show ownership or possession of the books and records or a substantial possessory interest in the invade
premises . . . (Henzel vs. United States, 296 F. 2d at 651). .
Henzel was soon followed by Villano vs. United States, 310 F. 2d 680, 683, (10th Cir. 1962). In Villano, police officers seized
two notebooks from a desk in the defendant's place of employment; the defendant did not claim ownership of either; he
asserted that several employees (including himself) used the notebooks. The Court held that the employee had a protected
interest and that there also was an invasion of privacy. Both Henzel and Villanoconsidered also the fact that the search and
seizure were "directed at" the moving defendant. Henzel vs. United States, 296 F. 2d at 682; Villano vs. United States, 310 F.

66
2d at 683.
In a case in which an attorney closed his law office, placed his files in storage and went to Puerto Rico, the Court of Appeals
for the Eighth Circuit recognized his standing to move to quash as unreasonable search and seizure under the Fourth
Amendment of the U.S. Constitution a grand jury subpoena duces tecum directed to the custodian of his files. The
Government contended that the petitioner had no standing because the books and papers were physically in the possession
of the custodian, and because the subpoena was directed against the custodian. The court rejected the contention, holding
that
Schwimmer legally had such possession, control and unrelinquished personal rights in the books and papers as not
to enable the question of unreasonable search and seizure to be escaped through the mere procedural device of
compelling a third-party naked possessor to produce and deliver them. Schwimmer vs. United States, 232 F. 2d 855,
861 (8th Cir. 1956).
Aggrieved person doctrine where the search warrant s primarily directed against said person gives "standing."
The latest United States decision squarely in point is United States vs. Birrell, 242 F. Supp. 191 (1965, U.S.D.C. S.D.N.Y.).
The defendant had stored with an attorney certain files and papers, which attorney, by the name of Dunn, was not, at the
time of the seizing of the records, Birrell's attorney. * Dunn, in turn, had stored most of the records at his home in the country
and on a farm which, according to Dunn's affidavit, was under his (Dunn's) "control and management." The papers turned
out to be private, personal and business papers together with corporate books and records of certain unnamed corporations
in which Birrell did not even claim ownership. (All of these type records were seized in the case at bar). Nevertheless, the
search in Birrell was held invalid by the court which held that even though Birrell did not own the premises where the records
were stored, he had "standing" to move for the return of all the papers and properties seized. The court, relying on Jones vs.
U.S., supra; U.S. vs. Antonelli Fireworks Co., 53 F. Supp. 870, Aff'd 155 F. 2d 631: Henzel vs. U.S., supra; and Schwimmer
vs. U.S., supra, pointed out that
It is overwhelmingly established that the searches here in question were directed solely and exclusively against Birrell. The only
person suggested in the papers as having violated the law was Birrell. The first search warrant described the records as having
been used "in committing a violation of Title 18, United States Code, Section 1341, by the use of the mails by one Lowell M.
Birrell, . . ." The second search warrant was captioned: "United States of America vs. Lowell M. Birrell. (p. 198)
Possession (actual or constructive), no less than ownership, gives standing to move to suppress. Such was the rule even before Jones. (p. 199)
If, as thus indicated Birrell had at least constructive possession of the records stored with Dunn, it matters not whether he had any interest in

the premises searched. See also Jeffers v. United States, 88 U.S. Appl. D.C. 58, 187 F. 2d 498 (1950), affirmed 432 U.S. 48, 72

S. Ct. 93, 96 L. Ed. 459 (1951).

The ruling in the Birrell case was reaffirmed on motion for reargument; the United States did not appeal from this decision.
The factual situation in Birrell is strikingly similar to the case of the present petitioners; as in Birrell, many personal and
corporate papers were seized from premises not petitioners' family residences; as in Birrell, the searches were "PRIMARILY
DIRECTED SOLETY AND EXCLUSIVELY" against the petitioners. Still both types of documents were suppressed
in Birrell because of the illegal search. In the case at bar, the petitioners connection with the premises raided is much closer
than in Birrell.
Thus, the petitioners have full standing to move for the quashing of all the warrants regardless whether these were directed
against residences in the narrow sense of the word, as long as the documents were personal papers of the petitioners or (to
the extent that they were corporate papers) were held by them in a personal capacity or under their personal control.
Prescinding a from the foregoing, this Court, at all events, should order the return to the petitioners
all personaland private papers and effects seized, no matter where these were seized, whether from their residences or
corporate offices or any other place or places. The uncontradicted sworn statements of the petitioners in their, various
pleadings submitted to this Court indisputably show that amongst the things seized from the corporate offices and other
places were personal and private papers and effects belonging to the petitioners.
If there should be any categorization of the documents, papers and things which where the objects of the unlawful searches
and seizures, I submit that the grouping should be: (a) personal or private papers of the petitioners were they were unlawfully
seized, be it their family residences offices, warehouses and/or premises owned and/or possessed (actually or
constructively) by them as shown in all the search and in the sworn applications filed in securing the void search warrants
and (b) purely corporate papers belonging to corporations. Under such categorization or grouping, the determination of
which unlawfully seized papers, documents and things arepersonal/private of the petitioners or purely corporate papers will
have to be left to the lower courts which issued the void search warrants in ultimately effecting the suppression and/or return
of the said documents.
And as unequivocally indicated by the authorities above cited, the petitioners likewise have clear legal standing to move for
the suppression of purely corporate papers as "President and/or General Manager" of the corporations involved as
specifically mentioned in the void search warrants.
Finally, I must articulate my persuasion that although the cases cited in my disquisition were criminal prosecutions, the great
clauses of the constitutional proscription on illegal searches and seizures do not withhold the mantle of their protection from

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cases not criminal in origin or nature.

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G.R. No. L-24693

July 31, 1967

ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION, INC., HOTEL DEL MAR INC. and GO
CHIU, petitioners-appellees,
vs.
THE HONORABLE CITY MAYOR OF MANILA, respondent-appellant.
VICTOR ALABANZA, intervenor-appellee.
FERNANDO, J.:
The principal question in this appeal from a judgment of the lower court in an action for prohibition is whether Ordinance No.
4760 of the City of Manila is violative of the due process clause. The lower court held that it is and adjudged it
"unconstitutional, and, therefore, null and void." For reasons to be more specifically set forth, such judgment must be
reversed, there being a failure of the requisite showing to sustain an attack against its validity.
The petition for prohibition against Ordinance No. 4760 was filed on July 5, 1963 by the petitioners, Ermita-Malate Hotel and
Motel Operators Association, one of its members, Hotel del Mar Inc., and a certain Go Chiu, who is "the president and
general manager of the second petitioner" against the respondent Mayor of the City of Manila who was sued in his capacity
as such "charged with the general power and duty to enforce ordinances of the City of Manila and to give the necessary
orders for the faithful execution and enforcement of such ordinances." (par. 1). It was alleged that the petitioner non-stock
corporation is dedicated to the promotion and protection of the interest of its eighteen (18) members "operating hotels and
motels, characterized as legitimate businesses duly licensed by both national and city authorities, regularly paying taxes,
employing and giving livelihood to not less than 2,500 person and representing an investment of more than P3 million." 1 (par.
2). It was then alleged that on June 13, 1963, the Municipal Board of the City of Manila enacted Ordinance No. 4760,
approved on June 14, 1963 by the then Vice-Mayor Herminio Astorga, who was at the time acting as Mayor of the City of
Manila. (par. 3).
After which the alleged grievances against the ordinance were set forth in detail. There was the assertion of its being beyond
the powers of the Municipal Board of the City of Manila to enact insofar as it would regulate motels, on the ground that in the
revised charter of the City of Manila or in any other law, no reference is made to motels; that Section 1 of the challenged
ordinance is unconstitutional and void for being unreasonable and violative of due process insofar as it would impose
P6,000.00 fee per annum for first class motels and P4,500.00 for second class motels; that the provision in the same section
which would require the owner, manager, keeper or duly authorized representative of a hotel, motel, or lodging house to
refrain from entertaining or accepting any guest or customer or letting any room or other quarter to any person or persons
without his filling up the prescribed form in a lobby open to public view at all times and in his presence, wherein the surname,
given name and middle name, the date of birth, the address, the occupation, the sex, the nationality, the length of stay and
the number of companions in the room, if any, with the name, relationship, age and sex would be specified, with data
furnished as to his residence certificate as well as his passport number, if any, coupled with a certification that a person
signing such form has personally filled it up and affixed his signature in the presence of such owner, manager, keeper or duly
authorized representative, with such registration forms and records kept and bound together, it also being provided that the
premises and facilities of such hotels, motels and lodging houses would be open for inspection either by the City Mayor, or
the Chief of Police, or their duly authorized representatives is unconstitutional and void again on due process grounds, not
only for being arbitrary, unreasonable or oppressive but also for being vague, indefinite and uncertain, and likewise for the
alleged invasion of the right to privacy and the guaranty against self-incrimination; that Section 2 of the challenged ordinance
classifying motels into two classes and requiring the maintenance of certain minimum facilities in first class motels such as a
telephone in each room, a dining room or, restaurant and laundry similarly offends against the due process clause for being
arbitrary, unreasonable and oppressive, a conclusion which applies to the portion of the ordinance requiring second class
motels to have a dining room; that the provision of Section 2 of the challenged ordinance prohibiting a person less than 18
years old from being accepted in such hotels, motels, lodging houses, tavern or common inn unless accompanied by parents
or a lawful guardian and making it unlawful for the owner, manager, keeper or duly authorized representative of such
establishments to lease any room or portion thereof more than twice every 24 hours, runs counter to the due process
guaranty for lack of certainty and for its unreasonable, arbitrary and oppressive character; and that insofar as the penalty
provided for in Section 4 of the challenged ordinance for a subsequent conviction would, cause the automatic cancellation of
the license of the offended party, in effect causing the destruction of the business and loss of its investments, there is once
again a transgression of the due process clause.
There was a plea for the issuance of preliminary injunction and for a final judgment declaring the above ordinance null and
void and unenforceable. The lower court on July 6, 1963 issued a writ of preliminary injunction ordering respondent Mayor to
refrain from enforcing said Ordinance No. 4760 from and after July 8, 1963.
In the a answer filed on August 3, 1963, there was an admission of the personal circumstances regarding the respondent
Mayor and of the fact that petitioners are licensed to engage in the hotel or motel business in the City of Manila, of the
provisions of the cited Ordinance but a denial of its alleged nullity, whether on statutory or constitutional grounds. After
setting forth that the petition did fail to state a cause of action and that the challenged ordinance bears a reasonable relation,
to a proper purpose, which is to curb immorality, a valid and proper exercise of the police power and that only the guests or
customers not before the court could complain of the alleged invasion of the right to privacy and the guaranty against self
incrimination, with the assertion that the issuance of the preliminary injunction ex parte was contrary to law, respondent
Mayor prayed for, its dissolution and the dismissal of the petition.
Instead of evidence being offered by both parties, there was submitted a stipulation of facts dated September 28, 1964,

69
which reads:
1. That the petitioners Ermita-Malate Hotel and Motel Operators Association, Inc. and Hotel del Mar Inc. are duly
organized and existing under the laws of the Philippines, both with offices in the City of Manila, while the petitioner
Go Chin is the president and general manager of Hotel del Mar Inc., and the intervenor Victor Alabanza is a resident
of Baguio City, all having the capacity to sue and be sued;
2. That the respondent Mayor is the duly elected and incumbent City Mayor and chief executive of the City of Manila
charged with the general power and duty to enforce ordinances of the City of Manila and to give the necessary
orders for the faithful execution and enforcement of such ordinances;
3. That the petitioners are duly licensed to engage in the business of operating hotels and motels in Malate and
Ermita districts in Manila;
4. That on June 13, 1963, the Municipal Board of the City of Manila enacted Ordinance No. 4760, which was
approved on June 14, 1963, by Vice-Mayor Herminio Astorga, then the acting City Mayor of Manila, in the absence
of the respondent regular City Mayor, amending sections 661, 662, 668-a, 668-b and 669 of the compilation of the
ordinances of the City of Manila besides inserting therein three new sections. This ordinance is similar to the one
vetoed by the respondent Mayor (Annex A) for the reasons stated in its 4th Indorsement dated February 15, 1963
(Annex B);
5. That the explanatory note signed by then Councilor Herminio Astorga was submitted with the proposed ordinance
(now Ordinance 4760) to the Municipal Board, copy of which is attached hereto as Annex C;
6. That the City of Manila derived in 1963 an annual income of P101,904.05 from license fees paid by the 105 hotels
and motels (including herein petitioners) operating in the City of Manila.1wph1.t
Thereafter came a memorandum for respondent on January 22, 1965, wherein stress was laid on the presumption of the
validity of the challenged ordinance, the burden of showing its lack of conformity to the Constitution resting on the party who
assails it, citing not only U.S. v. Salaveria, but likewise applicable American authorities. Such a memorandum likewise
refuted point by point the arguments advanced by petitioners against its validity. Then barely two weeks later, on February 4,
1965, the memorandum for petitioners was filed reiterating in detail what was set forth in the petition, with citations of what
they considered to be applicable American authorities and praying for a judgment declaring the challenged ordinance "null
and void and unenforceable" and making permanent the writ of preliminary injunction issued.
After referring to the motels and hotels, which are members of the petitioners association, and referring to the alleged
constitutional questions raised by the party, the lower court observed: "The only remaining issue here being purely a
question of law, the parties, with the nod of the Court, agreed to file memoranda and thereafter, to submit the case for
decision of the Court." It does appear obvious then that without any evidence submitted by the parties, the decision passed
upon the alleged infirmity on constitutional grounds of the challenged ordinance, dismissing as is undoubtedly right and
proper the untenable objection on the alleged lack of authority of the City of Manila to regulate motels, and came to the
conclusion that "the challenged Ordinance No. 4760 of the City of Manila, would be unconstitutional and, therefore, null and
void." It made permanent the preliminary injunction issued against respondent Mayor and his agents "to restrain him from
enforcing the ordinance in question." Hence this appeal.
As noted at the outset, the judgment must be reversed. A decent regard for constitutional doctrines of a fundamental
character ought to have admonished the lower court against such a sweeping condemnation of the challenged ordinance. Its
decision cannot be allowed to stand, consistently with what has hitherto been the accepted standards of constitutional
adjudication, in both procedural and substantive aspects.
Primarily what calls for a reversal of such a decision is the absence of any evidence to offset the presumption of validity that
attaches to a challenged statute or ordinance. As was expressed categorically by Justice Malcolm: "The presumption is all in
favor of validity x x x . The action of the elected representatives of the people cannot be lightly set aside. The councilors
must, in the very nature of things, be familiar with the necessities of their particular municipality and with all the facts and
circumstances which surround the subject and necessitate action. The local legislative body, by enacting the ordinance, has
in effect given notice that the regulations are essential to the well being of the people x x x . The Judiciary should not lightly
set aside legislative action when there is not a clear invasion of personal or property rights under the guise of police
regulation.2
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. The principle has been nowhere better
expressed than in the leading case of O'Gorman & Young v. Hartford Fire Insurance Co.,3 where the American Supreme
Court through Justice Brandeis tersely and succinctly summed up the matter thus: 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 resumption of constitutionality must prevail in the
absence of some factual foundation of record for overthrowing the statute." No such factual foundation being laid in the
present case, the lower court deciding the matter on the pleadings and the stipulation of facts, the presumption of validity
must prevail and the judgment against the ordinance set aside.
Nor may petitioners assert with plausibility that on its face the ordinance is fatally defective as being repugnant to the due
process clause of the Constitution. The mantle of protection associated with the due process guaranty does not cover
petitioners. This particular manifestation of a police power measure being specifically aimed to safeguard public morals is
immune from such imputation of nullity resting purely on conjecture and unsupported by anything of substance. To hold
otherwise would be to unduly restrict and narrow the scope of police power which has been properly characterized as the
most essential, insistent and the least limitable of powers, 4 extending as it does "to all the great public needs." 5 It would be,
to paraphrase another leading decision, to destroy the very purpose of the state if it could be deprived or allowed itself to be

70
deprived of its competence to promote public health, public morals, public safety and the genera welfare. 6 Negatively put,
police power is "that inherent and plenary power in the State which enables it to prohibit all that is hurt full to the comfort,
safety, and welfare of society.7
There is no question but that the challenged ordinance was precisely enacted to minimize certain practices hurtful to public
morals. The explanatory note of the Councilor Herminio Astorga included as annex to the stipulation of facts, speaks of the
alarming increase in the rate of prostitution, adultery and fornication in Manila traceable in great part to the existence of
motels, which "provide a necessary atmosphere for clandestine entry, presence and exit" and thus become the "ideal haven
for prostitutes and thrill-seekers." The challenged ordinance then proposes to check the clandestine harboring of transients
and guests of these establishments by requiring these transients and guests to fill up a registration form, prepared for the
purpose, in a lobby open to public view at all times, and by introducing several other amendatory provisions calculated to
shatter the privacy that characterizes the registration of transients and guests." Moreover, the increase in the licensed fees
was intended to discourage "establishments of the kind from operating for purpose other than legal" and at the same time, to
increase "the income of the city government." It would appear therefore that the stipulation of facts, far from sustaining any
attack against the validity of the ordinance, argues eloquently for it.
It is a fact worth noting that this Court has invariably stamped with the seal of its approval, ordinances punishing vagrancy
and classifying a pimp or procurer as a vagrant;8 provide a license tax for and regulating the maintenance or operation of
public dance halls;9 prohibiting gambling;10 prohibiting jueteng;11 and monte;12prohibiting playing of panguingui on days other
than Sundays or legal holidays;13 prohibiting the operation of pinball machines;14 and prohibiting any person from keeping,
conducting or maintaining an opium joint or visiting a place where opium is smoked or otherwise used, 15 all of which are
intended to protect public morals.
On the legislative organs of the government, whether national or local, primarily rest the exercise of the police power, which,
it cannot be too often emphasized, is the power to prescribe regulations to promote the health, morals, peace, good order,
safety and general welfare of the people. In view of the requirements of due process, equal protection and other applicable
constitutional guaranties however, the exercise of such police power insofar as it may affect the life, liberty or property of any
person is subject to judicial inquiry. Where such exercise of police power may be considered as either capricious, whimsical,
unjust or unreasonable, a denial of due process or a violation of any other applicable constitutional guaranty may call for
correction by the courts.
We are thus led to considering the insistent, almost shrill tone, in which the objection is raised to the question of due
process.16 There is no controlling and precise definition of due process. It furnishes though a standard to which the
governmental action should conform in order that deprivation of life, liberty or property, in each appropriate case, be valid.
What then is the standard of due process which must exist both as a procedural and a substantive requisite to free the
challenged ordinance, or any governmental action for that matter, from the imputation of legal infirmity sufficient to spell its
doom? It is responsiveness to the supremacy of reason, obedience to the dictates of justice. Negatively put, arbitrariness is
ruled out and unfairness avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must not
outrun the bounds of reason and result in sheer oppression. Due process is thus hostile to any official action marred by lack
of reasonableness. Correctly it has been identified as freedom from arbitrariness. It is the embodiment of the sporting idea of
fair play.17 It exacts fealty "to those strivings for justice" and judges the act of officialdom of whatever branch "in the light of
reason drawn from considerations of fairness that reflect [democratic] traditions of legal and political thought." 18 It is not a
narrow or "technical conception with fixed content unrelated to time, place and circumstances," 19 decisions based on such a
clause requiring a "close and perceptive inquiry into fundamental principles of our society." 20 Questions of due process are
not to be treated narrowly or pedantically in slavery to form or phrases. 21
It would thus be an affront to reason to stigmatize an ordinance enacted precisely to meet what a municipal lawmaking body
considers an evil of rather serious proportion an arbitrary and capricious exercise of authority. It would seem that what
should be deemed unreasonable and what would amount to an abdication of the power to govern is inaction in the face of an
admitted deterioration of the state of public morals. To be more specific, the Municipal Board of the City of Manila felt the
need for a remedial measure. It provided it with the enactment of the challenged ordinance. A strong case must be found in
the records, and, as has been set forth, none is even attempted here to attach to an ordinance of such character the taint of
nullity for an alleged failure to meet the due process requirement. Nor does it lend any semblance even of deceptive
plausibility to petitioners' indictment of Ordinance No. 4760 on due process grounds to single out such features as the
increased fees for motels and hotels, the curtailment of the area of freedom to contract, and, in certain particulars, its alleged
vagueness.
Admittedly there was a decided increase of the annual license fees provided for by the challenged ordinance for hotels and
motels, 150% for the former and over 200% for the latter, first-class motels being required to pay a P6,000 annual fee and
second-class motels, P4,500 yearly. It has been the settled law however, as far back as 1922 that municipal license fees
could be classified into those imposed for regulating occupations or regular enterprises, for the regulation or restriction of
non-useful occupations or enterprises and for revenue purposes only.22 As was explained more in detail in the above Cu
Unjieng case: (2) Licenses for non-useful occupations are also incidental to the police power and the right to exact a fee may
be implied from the power to license and regulate, but in fixing amount of the license fees the municipal corporations are
allowed a much wider discretion in this class of cases than in the former, and aside from applying the well-known legal
principle that municipal ordinances must not be unreasonable, oppressive, or tyrannical, courts have, as a general rule,
declined to interfere with such discretion. The desirability of imposing restraint upon the number of persons who might
otherwise engage in non-useful enterprises is, of course, generally an important factor in the determination of the amount of
this kind of license fee. Hence license fees clearly in the nature of privilege taxes for revenue have frequently been upheld,
especially in of licenses for the sale of liquors. In fact, in the latter cases the fees have rarely been declared unreasonable. 23
Moreover in the equally leading case of Lutz v. Araneta24 this Court affirmed the doctrine earlier announced by the American

71
Supreme Court that taxation may be made to implement the state's police power. Only the other day, this Court had occasion
to affirm that the broad taxing authority conferred by the Local Autonomy Act of 1959 to cities and municipalities is sufficiently
plenary to cover a wide range of subjects with the only limitation that the tax so levied is for public purposes, just and
uniform.25
As a matter of fact, even without reference to the wide latitude enjoyed by the City of Manila in imposing licenses for
revenue, it has been explicitly held in one case that "much discretion is given to municipal corporations in determining the
amount," here the license fee of the operator of a massage clinic, even if it were viewed purely as a police power
measure.26 The discussion of this particular matter may fitly close with this pertinent citation from another decision of
significance: "It is urged on behalf of the plaintiffs-appellees that the enforcement of the ordinance could deprive them of their
lawful occupation and means of livelihood because they can not rent stalls in the public markets. But it appears that plaintiffs
are also dealers in refrigerated or cold storage meat, the sale of which outside the city markets under certain conditions is
permitted x x x . And surely, the mere fact, that some individuals in the community may be deprived of their present business
or a particular mode of earning a living cannot prevent the exercise of the police power. As was said in a case, persons
licensed to pursue occupations which may in the public need and interest be affected by the exercise of the police power
embark in these occupations subject to the disadvantages which may result from the legal exercise of that power."
Nor does the restriction on the freedom to contract, insofar as the challenged ordinance makes it unlawful for the owner,
manager, keeper or duly authorized representative of any hotel, motel, lodging house, tavern, common inn or the like, to
lease or rent room or portion thereof more than twice every 24 hours, with a proviso that in all cases full payment shall be
charged, call for a different conclusion. Again, such a limitation cannot be viewed as a transgression against the command of
due process. It is neither unreasonable nor arbitrary. Precisely it was intended to curb the opportunity for the immoral or
illegitimate use to which such premises could be, and, according to the explanatory note, are being devoted. How could it
then be arbitrary or oppressive when there appears a correspondence between the undeniable existence of an undesirable
situation and the legislative attempt at correction. Moreover, petitioners cannot be unaware that every regulation of conduct
amounts to curtailment of liberty which as pointed out by Justice Malcolm cannot be absolute. Thus: "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 x x x The liberty of the citizen 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." 28
A similar observation was made by Justice Laurel: "Public welfare, then, lies at the bottom of the enactment of said law, and
the state in order to promote the general welfare may interfere with personal liberty, with property, and with business and
occupations. Persons and property may be subjected to all kinds of restraints and burdens, in order to secure the general
comfort, health, and prosperity of the state x x x To this fundamental aim of our Government the rights of the individual are
subordinated. Liberty is a blessing without which life is a misery, but liberty should not be made to prevail over authority
because then society will fall into anarchy. Neither should authority be made to prevail over liberty because then the
individual will fall into slavery. The citizen should achieve the required balance of liberty and authority in his mind through
education and personal discipline, so that there may be established the resultant equilibrium, which means peace and order
and happiness for all.29
It is noteworthy that the only decision of this Court nullifying legislation because of undue deprivation of freedom to
contract, People v. Pomar,30 no longer "retains its virtuality as a living principle. The policy of laissez faire has to some extent
given way to the assumption by the government of the right of intervention even in contractual relations affected with public
interest.31 What may be stressed sufficiently is that if the liberty involved were freedom of the mind or the person, the
standard for the validity of governmental acts is much more rigorous and exacting, but where the liberty curtailed affects at
the most rights of property, the permissible scope of regulatory measure is wider.32 How justify then the allegation of a denial
of due process?
Lastly, there is the attempt to impugn the ordinance on another due process ground by invoking the principles of vagueness
or uncertainty. It would appear from a recital in the petition itself that what seems to be the gravamen of the alleged
grievance is that the provisions are too detailed and specific rather than vague or uncertain. Petitioners, however, point to the
requirement that a guest should give the name, relationship, age and sex of the companion or companions as indefinite and
uncertain in view of the necessity for determining whether the companion or companions referred to are those arriving with
the customer or guest at the time of the registry or entering the room With him at about the same time or coming at any
indefinite time later to join him; a proviso in one of its sections which cast doubt as to whether the maintenance of a
restaurant in a motel is dependent upon the discretion of its owners or operators; another proviso which from their standpoint
would require a guess as to whether the "full rate of payment" to be charged for every such lease thereof means a full day's
or merely a half-day's rate. It may be asked, do these allegations suffice to render the ordinance void on its face for alleged
vagueness or uncertainty? To ask the question is to answer it. From Connally v. General Construction Co.33 toAdderley v.
Florida,34 the principle has been consistently upheld that what makes a statute susceptible to such a charge is an enactment
either forbidding or requiring the doing of an act that men of common intelligence must necessarily guess at its meaning and
differ as to its application. Is this the situation before us? A citation from Justice Holmes would prove illuminating: "We agree
to all the generalities about not supplying criminal laws with what they omit but there is no canon against using common
sense in construing laws as saying what they obviously mean."35
That is all then that this case presents. As it stands, with all due allowance for the arguments pressed with such vigor and
determination, the attack against the validity of the challenged ordinance cannot be considered a success. Far from it.
Respect for constitutional law principles so uniformly held and so uninterruptedly adhered to by this Court compels a reversal

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of the appealed decision.
Wherefore, the judgment of the lower court is reversed and the injunction issued lifted forthwith. With costs.

73
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.
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. 2Impressed 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

74
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 preCommonwealth 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

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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 the respective authority of
each department and confined its jurisdiction to such a sphere. There would then be intrusion not allowable under the
Constitution if on a matter left to the discretion of a coordinate branch, the judiciary would substitute its own. If there be
adherence to the rule of law, as there ought to be, the last offender 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 on the
validity of the challenged provision likewise insofar as there may be objections, even if valid and cogent on is wisdom
cannot be sustained. 33
8. The alleged infringement of the fundamental principle of non-delegation of legislative power is equally without any
support well-settled legal doctrines. Had petitioner taken the trouble to acquaint himself with authoritative pronouncements

76
from this Tribunal, he would not have the temerity to make such an assertion. An exempt from the aforecited decision
of Edu v. Ericta sheds light on the matter: "To avoid the taint of unlawful delegation, there must be a standard, which implies
at the 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 repel A standard thus defines legislative policy, marks its maps out its
boundaries and 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 in pursuance of the above guidelines promulgate supplemental rules and regulations.
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 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 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 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 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 accepted principles of
international law as part of the law of the land * * *." 36 The 1968 Vienna Convention on Road Signs and Signals is
impressed with such a character. It is not for this country to repudiate a commitment to which it had pledged its word. The
concept of Pacta sunt servanda stands in the way of such an attitude, which is, moreover, at war with the principle of
international morality.
10. That is about all that needs be said. The rather court reference to equal protection did not even elicit any attempt on the
Part of Petitioner to substantiate in a manner 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 referred to as "the general rule"
in Santiago v. Far Eastern Broadcasting Co., 37 namely, "that the constitutionality of a law wig not be considered unless the
point is specially pleaded, insisted upon, and adequately argued." 38"Equal protection" is not a talismanic formula at the
mere invocation of which a party to a lawsuit can rightfully expect that success will crown his efforts. The law is anything but
that.
WHEREFORE, this petition is dismissed. The restraining order is lifted. This decision is immediately executory. No costs.
Separate Opinions
TEEHANKEE, J., dissenting:
I dissent from the majority's peremptory dismissal of the petition and lifting of the restraining order issued on October 19, 1978 against the blanket
enforcement of the requirement that all motor vehicles be equipped with the so-called early warning device, without even hearing the parties in oral
argument as generally required by the Court in original cases of far-reaching consequence such as the case at bar.
Lack of time presents my filing an extended dissent. I only wish to state that the petition advances grave and serious grounds of assailing "the rules and
regulations issued by the Land Transportation Commission under Administrative Order No. 1 and Memorandum Circular No. 32 [which] do not reflect the
real intent, noble objectives and spirit of Letter of Instructions No. 229, as amended by Letter of Instructions Nos. 479 and 716, because it is oppressive,
unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to the precepts of our compassionate New Society," because of the following
considerations, inter alia:
1. It is oppressive, arbitrary and discriminatory to require owners of motor vehicles with built-in and more effective and efficient E.W.D.'S such as "a)
blinking lights in the fore and aft of said motor vehicles, 1)) battery-powered blinking lights inside motor vehicles, c) built-in reflectorized tapes on front and
rear bumpers of motor vehicles....... to purchase the E.W.D. specified in the challenged administrative order, whose effectivity and utility have yet to be
demonstrated.
2. The public necessity for the challenged order has yet to be shown. No valid refutation has been made of petitioner's assertion that the "E.W.D.'s are not
too vital to the prevention of nighttime vehicular accidents. Statistics shows that of the 26,000 motor vehicle accidents that occurred in 1976, only 390 or
1.5 per cent involved rear-end collisions," as to require the purchase and installation of the questioned E.W.D. for almost 900,000 vehicles throughout the
country;
3. The big financial burden to be imposed on all motorists is staggering, and petitioner's assertion that "as of 1975, there were at least 865,037 motor
vehicles all over the country requiring E.W.D.'S and at the minimum price of 1156.00 per set, this would mean a consumer outlay of P 48,451,872.00, or
close to P 50 million for the questioned E.W.D.'S "stands unchallenged;
4. No real effort has been made to show that there can be practical and less burdensome alternative road safety devices for stalled vehicles than the
prescribed E.W.D., such as the common petroleum lamps "kinke" which can be placed just as effectively in front of stalled vehicles on the highways; and
5. There is no imperative need for imposing such a bet requirement on all vehicles. The respondents have not shown that they have availed of the powers
and prerogatives vested in their offices such as ridding the country of dilapidated trucks and vehicles which are the main cause of the deplorable -highway
accidents due to stoned vehicles, establishing an honest and foolproof system of examination and licensing of motor vehicle drivers so as to ban the
reckless and irresponsible and a sustained education campaign to instill safe driving habits and attitudes that can be carried out for much less than the P
50 million burden that would be imposed by the challenged order.
I do feel that a greater "degree of receptivity and sympathy" could be extended to the petitioner for his civic mindedness in having filed the present petition
g as capricious and unreasonable the "all pervading police power" of the State instead of throwing the case out of court and leaving the wrong impression
that the exercise of police power insofar as it may affect the life, liberty and property of any person is no longer subject to judicial inquiry.

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G.R. No. L-33169 July 30, 1982
GLICERIO JAVELLANA, petitioner,
vs.
HON. CESAR KINTANAR, Judge of the Court of First Instance of Negros Occidental, CITY OF BAGO, CITY
COUNCIL, CITY MAYOR, and CITY TREASURER, all of the City of Bago, respondents.
G.R. No. L-33212 July 30, 1982
GLICERIO JAVELLANA, petitioner, JUANITO NOVILLAS, ET AL., petitioners-intervenors,
vs.
HON. CESAR KINTANAR, Judge of the Court of First Instance of Negros Occidental, CITY OF BAGO, CITY
COUNCIL, CITY MAYOR, and CITY TREASURER, all of the City of Bago, respondents.
San Juan, Africa, Gonzales & San Agustin Law Offices for petitioner.
Feliciano E. Escaran, Rolando N. Medalla, Fernando C. Divinagracia and Yulo & Associates for respondents.
ABAD SANTOS, J.:
These are appeals from a decision of the Court of First Instance of Negros Occidental dated January 12, 1971, which
dismissed a petition that sought a declaration of nullity of Ordinances Nos. 142, 145 and 150, Series of 1968, of the City of
B ago, and to enjoin their enforcement.
Glicerio Javellana is the owner of a market (building and lot) in Crossing Bago, Bago City, which consists of store spaces
and of permanent and movable stalls all leased to vendors. Serving the general population of the City of Bago and of the
adjoining municipalities, for more than twenty years, said market had been operating under a Mayor's permit of the City of
Bago up to the second quarter of 1968 when the Treasurer of that city refused to accept the payment of Javellana for a
municipal license for the third quarter on the ground that Ordinance No. 150 had been enacted prohibiting the
establishment, maintenance or operation of a public market in the City of Bago by any person, entity, association or
corporation other than the city government of Bago. This prompted Javellana, as owner of said market, to file the petition
aforementioned.
Juanito Novillas and other store owners, stall holders and fish vendors in Javellana's market joined in the petition by means
of a complaint in intervention.
The appeal of Javellana is docketed as G.R. No. L-33169 while that of Novillas, et al. is docketed as G.R. No. L-33212.
The ordinances which are the subject of the petition and the present appeal were enacted by the Municipal Board of Bago
City in 1968 and insofar as relevant are couched in the following language:
Ordinance No. 142.
SECTION 1. Section 1 of Ordinance No. 10, Series of 1954, as amended by Resolution No. 39, Series of 1955,
and adopted by Ordinance No. 4, Series of 1966, is hereby amended to read as follows:
Section 1. No person or persons, except peddlers thereof who have paid the corresponding inspection and other
market fee, shall sell or offer for sale, fish, meat and other foodstuffs which are perishable in nature, outside of the
public markets within the City Proper of the City of Bago and its barrios.
SECTION 2. This ordinance shall take effect upon its approval.
Ordinance No. 145.
SECTION 1. Section 3, Paragraph C of City Ordinance No. 134, Series of 1968, is hereby amended to read as
follows:
Section 3. ...
C Inspection and Inspection Fees:
I All fish, seafoods and other foodstuffs which are perishable in nature to be sold or offered for sale within the
jurisdiction of the City of Bago shag first be submitted for inspection of the City Health Officer of the City and/or his
duly authorized representatives before the same shall be sold or offered for sale to the public; and such inspection
shall be made in the city-owned public market within the City Proper of the City of Bago and the corresponding
inspection fee of PO.20 is hereby imposed on every case of fresh fish thus inspected payable by the fish
wholesalers, dealers or 'commissionists' concerned.

78
SECTION 2. This Ordinance shall take effect upon its approval.
Ordinance No. 150.
Section 1. It shall be unlawful for any person, entity, association or corporation other than the City Government
of Bago to establish, maintain or operate a public market or markets within the city limits or territorial jurisdiction of
the City of Bago.
Section 2. Any person found guilty of violation of the provisions of this ordinance shall be punished by a fine of
not more than Two Hundred Pesos (P200.00) or imprisonment of not more than six (6) months, or both such fine
and imprisonment in the discretion of the Court. In case the offender is a juridical person, the president, manager,
chief or head of the entity, association or corporation shall be liable.
Section 3. This Ordinance shall take effect upon its approval.
The appellants claim that the ordinances are unreasonable and Bago City has no power to enact them.
It is obvious that the key ordinance is No. 150 for if the appellants do not succeed in assailing it, their assault on the other
ordinances becomes moot and academic. Stated differently, the principal concern of the appellants is the continued
operation of Javellana's market and if it is adjudged that the operation be discontinued they should have no further interest
in the other ordinances. However, it would not be amiss for Us to state that We do not hesitate and see no need for an
extended discussion in holding that Ordinances Nos. 142 and 145 are manifestly valid; No. 142 because it is a regulatory
and revenue ordinance; No. 145 because it is promotive of general welfare and both are authorized by Section 15 of R.A.
No. 4382, otherwise known as the Charter of Bago, which spells out in detail the general powers and duties of the
Municipal Board of Bago City. And as the lower court said:
The enactment of these ordinances by the City Council of the City of Bago is clearly authorized under Section 15 of
the said City Charter, as follows:
(a) Paragraph (n) which authorizes said Board 'to regulate and fix the amount of the license fees for peddlers, and the keeping,
preservation and sale of meat, poultry, fish, game, butter, cheese, lard, vegetables, bread, and other provisions;
(b) Paragraph (cc) which authorizes said Board 'to provide for the establishment, maintenance and regulation, and to fix the
fees for the use of public markets;
(c) Paragraph (jj) which authorizes said Board 'to regulate any other business or occupation, not specifically mentioned in the
preceding paragraphs, and to impose a license fee upon all persons engaged in the same or who enjoy privileges in the city;
and
(d) Paragraph (mm) the general welfare clause, which authorizes said Board 'to enact an ordinances it may deem necessary
and proper for the sanitation and safety, the furtherance of the prosperity, and the promotion of the morality, peace, good order,
comfort, convenience, and general welfare of the city, and its inhabitants, and such others as may be necessary to carry into
effect and discharge the powers and duties conferred by this Charter.

Coming now to Ordinance No. 150, there is no question that it was enacted pursuant to Section 15, paragraph (cc) of the
Charter of Bago which empowers the Municipal Board "... to prohibit the establishment or operation within the city limits of
public markets by any person, entity, association, or corporation other than the city."
The appellants claim that Javellana's market is not covered by the charter provision nor by the ordinance because it is not
a public market. They assert that Javellana's market is a private market because Javellana "owns the land and the building
on which the market is being maintained and operated." In other words, to the appellants whether or not a market is
"'public" depends on who owns it. It thus appears that the resolution of the appeals hinges on the meaning of the term
"public market." The appellants claim that a public market is one that is not owned privately; whereas the appellees say that
it is one that serves the general public. Viewed in this light, the validity of Ordinance No. 150, whether on the basis of its
reasonableness or on the power of the City of Bago to enact it, is not in issue; what has to be resolved is only its
application to the appellants.
We agree with trial court that the test of a "public market" is its dedication to the service of the general public and -not its
ownership. Thus this Court has had occasion to state:
Petitioners allege that the Aranque Market Extension is not a public market within the meaning of all laws,
ordinances, orders and regulations governing public markets because said market stands on private property and
its building was erected with private funds. This contention is not well taken. A market is a public market when it is
dedicated to the service of the general public and is operated under government control and supervision as a
public utility, whether it be owned by the government or any instrumentality thereof or by any private individual.
(Vda. de Salgado vs. De la Fuente, 87 Phil. 343, 345 [1950].)
Also, a scrutiny of the charter provision win readily show that by public market is meant one that is intended to serve the
public in general. This is the only conclusion which can be drawn when it used the word "Public" to modify the word 1
"market" for if the meaning sought to be conveyed is the ownership thereof then the phrase "by any, person, entity,
association, or corporation other than the city" win serve no useful purpose.
That Javellana's market is a public market is indubitable. According to the decision of the lower court, "the petitioner himself
so declared when he testified that his market is engaged in servicing the public, not only in Bago City, but also those
coming from other municipalities; that he is renting stalls in his market to the public; that there are around 60 permanent
stalls and 50 movable stalls being leased by him; and that his market services about 3,000 people."
We hold that Javellana's market fans within the scope of Ordinance No. 150 and the trial court committed no error in so

79
holding and in dismissing the petition as well as the complaint in intervention.
WHEREFORE, the appeals are dismissed for lack of merit. No special pronouncement as to costs. SO ORDERED.
G.R. No. 74457 March 20, 1987
RESTITUTO YNOT, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER, INTEGRATED NATIONAL POLICE, BAROTAC
NUEVO, ILOILO and THE REGIONAL DIRECTOR, BUREAU OF ANIMAL INDUSTRY, REGION IV, ILOILO
CITY, respondents.
Ramon A. Gonzales for petitioner.
CRUZ, J.:
The essence of due process is distilled in the immortal cry of Themistocles to Alcibiades "Strike but hear me first!" It is
this cry that the petitioner in effect repeats here as he challenges the constitutionality of Executive Order No. 626-A.
The said executive order reads in full as follows:
WHEREAS, the President has given orders prohibiting the interprovincial movement of carabaos and the slaughtering of
carabaos not complying with the requirements of Executive Order No. 626 particularly with respect to age;
WHEREAS, it has been observed that despite such orders the violators still manage to circumvent the prohibition against interprovincial movement of carabaos by transporting carabeef instead; and
WHEREAS, in order to achieve the purposes and objectives of Executive Order No. 626 and the prohibition against
interprovincial movement of carabaos, it is necessary to strengthen the said Executive Order and provide for the disposition of
the carabaos and carabeef subject of the violation;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the
Constitution, do hereby promulgate the following:
SECTION 1. Executive Order No. 626 is hereby amended such that henceforth, no carabao regardless of age, sex, physical
condition or purpose and no carabeef shall be transported from one province to another. The carabao or carabeef transported in
violation of this Executive Order as amended shall be subject to confiscation and forfeiture by the government, to be distributed
to charitable institutions and other similar institutions as the Chairman of the National Meat Inspection Commission may ay see
fit, in the case of carabeef, and to deserving farmers through dispersal as the Director of Animal Industry may see fit, in the case
of carabaos.
SECTION 2. This Executive Order shall take effect immediately.
Done in the City of Manila, this 25th day of October, in the year of Our Lord, nineteen hundred and eighty.

(SGD.) FERDINAND E. MARCOS

President
Republic of the Philippines

The petitioner had transported six carabaos in a pump boat from Masbate to Iloilo on January 13, 1984, when they were
confiscated by the police station commander of Barotac Nuevo, Iloilo, for violation of the above measure. 1The petitioner
sued for recovery, and the Regional Trial Court of Iloilo City issued a writ of replevin upon his filing of a supersedeas bond
of P12,000.00. After considering the merits of the case, the court sustained the confiscation of the carabaos and, since they
could no longer be produced, ordered the confiscation of the bond. The court also declined to rule on the constitutionality of
the executive order, as raise by the petitioner, for lack of authority and also for its presumed validity. 2
The petitioner appealed the decision to the Intermediate Appellate Court,* 3 which upheld the trial court, ** and he has now
come before us in this petition for review on certiorari.
The thrust of his petition is that the executive order is unconstitutional insofar as it authorizes outright confiscation of the
carabao or carabeef being transported across provincial boundaries. His claim is that the penalty is invalid because it is
imposed without according the owner a right to be heard before a competent and impartial court as guaranteed by due
process. He complains that the measure should not have been presumed, and so sustained, as constitutional. There is
also a challenge to the improper exercise of the legislative power by the former President under Amendment No. 6 of the
1973 Constitution. 4
While also involving the same executive order, the case of Pesigan v. Angeles 5 is not applicable here. The question raised
there was the necessity of the previous publication of the measure in the Official Gazette before it could be considered
enforceable. We imposed the requirement then on the basis of due process of law. In doing so, however, this Court did not,
as contended by the Solicitor General, impliedly affirm the constitutionality of Executive Order No. 626-A. That is an entirely
different matter.
This Court has declared that while lower courts should observe a becoming modesty in examining constitutional questions,

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they are nonetheless not prevented from resolving the same whenever warranted, subject only to review by the highest
tribunal. 6 We have jurisdiction under the Constitution to "review, revise, reverse, modify or affirm on appeal or certiorari, as
the law or rules of court may provide," final judgments and orders of lower courts in, among others, all cases involving the
constitutionality of certain measures. 7 This simply means that the resolution of such cases may be made in the first
instance by these lower courts.
And while it is true that laws are presumed to be constitutional, that presumption is not by any means conclusive and in fact
may be rebutted. Indeed, if there be a clear showing of their invalidity, and of the need to declare them so, then "will be the
time to make the hammer fall, and heavily," 8 to recall Justice Laurel's trenchant warning. Stated otherwise, courts should
not follow the path of least resistance by simply presuming the constitutionality of a law when it is questioned. On the
contrary, they should probe the issue more deeply, to relieve the abscess, paraphrasing another distinguished jurist, 9 and
so heal the wound or excise the affliction.
Judicial power authorizes this; and when the exercise is demanded, there should be no shirking of the task for fear of
retaliation, or loss of favor, or popular censure, or any other similar inhibition unworthy of the bench, especially this Court.
The challenged measure is denominated an executive order but it is really presidential decree, promulgating a new rule
instead of merely implementing an existing law. It was issued by President Marcos not for the purpose of taking care that
the laws were faithfully executed but in the exercise of his legislative authority under Amendment No. 6. It was provided
thereunder that whenever in his judgment there existed a grave emergency or a threat or imminence thereof or whenever
the legislature failed or was unable to act adequately on any matter that in his judgment required immediate action, he
could, in order to meet the exigency, issue decrees, orders or letters of instruction that were to have the force and effect of
law. As there is no showing of any exigency to justify the exercise of that extraordinary power then, the petitioner has
reason, indeed, to question the validity of the executive order. Nevertheless, since the determination of the grounds was
supposed to have been made by the President "in his judgment, " a phrase that will lead to protracted discussion not really
necessary at this time, we reserve resolution of this matter until a more appropriate occasion. For the nonce, we confine
ourselves to the more fundamental question of due process.
It is part of the art of constitution-making that the provisions of the charter be cast in precise and unmistakable language to
avoid controversies that might arise on their correct interpretation. That is the Ideal. In the case of the due process clause,
however, this rule was deliberately not followed and the wording was purposely kept ambiguous. In fact, a proposal to
delineate it more clearly was submitted in the Constitutional Convention of 1934, but it was rejected by Delegate Jose P.
Laurel, Chairman of the Committee on the Bill of Rights, who forcefully argued against it. He was sustained by the body. 10
The due process clause was kept intentionally vague so it would remain also conveniently resilient. This was felt necessary
because due process is not, like some provisions of the fundamental law, an "iron rule" laying down an implacable and
immutable command for all seasons and all persons. Flexibility must be the best virtue of the guaranty. The very elasticity
of the due process clause was meant to make it adapt easily to every situation, enlarging or constricting its protection as
the changing times and circumstances may require.
Aware of this, the courts have also hesitated to adopt their own specific description of due process lest they confine
themselves in a legal straitjacket that will deprive them of the elbow room they may need to vary the meaning of the clause
whenever indicated. Instead, they have preferred to leave the import of the protection open-ended, as it were, to be
"gradually ascertained by the process of inclusion and exclusion in the course of the decision of cases as they
arise." 11 Thus, Justice Felix Frankfurter of the U.S. Supreme Court, for example, would go no farther than to define due
process and in so doing sums it all up as nothing more and nothing less than "the embodiment of the sporting Idea of
fair play." 12
When the barons of England extracted from their sovereign liege the reluctant promise that that Crown would thenceforth
not proceed against the life liberty or property of any of its subjects except by the lawful judgment of his peers or the law of
the land, they thereby won for themselves and their progeny that splendid guaranty of fairness that is now the hallmark of
the free society. The solemn vow that King John made at Runnymede in 1215 has since then resounded through the ages,
as a ringing reminder to all rulers, benevolent or base, that every person, when confronted by the stern visage of the law, is
entitled to have his say in a fair and open hearing of his cause.
The closed mind has no place in the open society. It is part of the sporting Idea of fair play to hear "the other side" before
an opinion is formed or a decision is made by those who sit in judgment. Obviously, one side is only one-half of the
question; the other half must also be considered if an impartial verdict is to be reached based on an informed appreciation
of the issues in contention. It is indispensable that the two sides complement each other, as unto the bow the arrow, in
leading to the correct ruling after examination of the problem not from one or the other perspective only but in its totality. A
judgment based on less that this full appraisal, on the pretext that a hearing is unnecessary or useless, is tainted with the
vice of bias or intolerance or ignorance, or worst of all, in repressive regimes, the insolence of power.
The minimum requirements of due process are notice and hearing 13 which, generally speaking, may not be dispensed
with because they are intended as a safeguard against official arbitrariness. It is a gratifying commentary on our judicial
system that the jurisprudence of this country is rich with applications of this guaranty as proof of our fealty to the rule of law
and the ancient rudiments of fair play. We have consistently declared that every person, faced by the awesome power of
the State, is entitled to "the law of the land," which Daniel Webster described almost two hundred years ago in the famous
Dartmouth College Case, 14 as "the law which hears before it condemns, which proceeds upon inquiry and renders
judgment only after trial." It has to be so if the rights of every person are to be secured beyond the reach of officials who,

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out of mistaken zeal or plain arrogance, would degrade the due process clause into a worn and empty catchword.
This is not to say that notice and hearing are imperative in every case for, to be sure, there are a number of admitted
exceptions. The conclusive presumption, for example, bars the admission of contrary evidence as long as such
presumption is based on human experience or there is a rational connection between the fact proved and the fact
ultimately presumed therefrom. 15 There are instances when the need for expeditions action will justify omission of these
requisites, as in the summary abatement of a nuisance per se, like a mad dog on the loose, which may be killed on sight
because of the immediate danger it poses to the safety and lives of the people. Pornographic materials, contaminated meat
and narcotic drugs are inherently pernicious and may be summarily destroyed. The passport of a person sought for a
criminal offense may be cancelled without hearing, to compel his return to the country he has fled. 16 Filthy restaurants
may be summarily padlocked in the interest of the public health and bawdy houses to protect the public morals. 17 In such
instances, previous judicial hearing may be omitted without violation of due process in view of the nature of the property
involved or the urgency of the need to protect the general welfare from a clear and present danger.
The protection of the general welfare is the particular function of the police power which both restraints and is restrained by
due process. The police power is simply defined as the power inherent in the State to regulate liberty and property for the
promotion of the general welfare. 18 By reason of its function, it extends to all the great public needs and is described as
the most pervasive, the least limitable and the most demanding of the three inherent powers of the State, far outpacing
taxation and eminent domain. The individual, as a member of society, is hemmed in by the police power, which affects him
even before he is born and follows him still after he is dead from the womb to beyond the tomb in practically
everything he does or owns. Its reach is virtually limitless. It is a ubiquitous and often unwelcome intrusion. Even so, as
long as the activity or the property has some relevance to the public welfare, its regulation under the police power is not
only proper but necessary. And the justification is found in the venerable Latin maxims, Salus populi est suprema
lex and Sic utere tuo ut alienum non laedas, which call for the subordination of individual interests to the benefit of the
greater number.
It is this power that is now invoked by the government to justify Executive Order No. 626-A, amending the basic rule in
Executive Order No. 626, prohibiting the slaughter of carabaos except under certain conditions. The original measure was
issued for the reason, as expressed in one of its Whereases, that "present conditions demand that the carabaos and the
buffaloes be conserved for the benefit of the small farmers who rely on them for energy needs." We affirm at the outset the
need for such a measure. In the face of the worsening energy crisis and the increased dependence of our farms on these
traditional beasts of burden, the government would have been remiss, indeed, if it had not taken steps to protect and
preserve them.
A similar prohibition was challenged in United States v. Toribio, 19 where a law regulating the registration, branding and
slaughter of large cattle was claimed to be a deprivation of property without due process of law. The defendant had been
convicted thereunder for having slaughtered his own carabao without the required permit, and he appealed to the Supreme
Court. The conviction was affirmed. The law was sustained as a valid police measure to prevent the indiscriminate killing of
carabaos, which were then badly needed by farmers. An epidemic had stricken many of these animals and the reduction of
their number had resulted in an acute decline in agricultural output, which in turn had caused an incipient famine.
Furthermore, because of the scarcity of the animals and the consequent increase in their price, cattle-rustling had spread
alarmingly, necessitating more effective measures for the registration and branding of these animals. The Court held that
the questioned statute was a valid exercise of the police power and declared in part as follows:
To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of
the public generally, as distinguished from those of a particular class, require such interference; and second, that
the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon
individuals. ...
From what has been said, we think it is clear that the enactment of the provisions of the statute under consideration
was required by "the interests of the public generally, as distinguished from those of a particular class" and that the
prohibition of the slaughter of carabaos for human consumption, so long as these animals are fit for agricultural
work or draft purposes was a "reasonably necessary" limitation on private ownership, to protect the community
from the loss of the services of such animals by their slaughter by improvident owners, tempted either by greed of
momentary gain, or by a desire to enjoy the luxury of animal food, even when by so doing the productive power of
the community may be measurably and dangerously affected.
In the light of the tests mentioned above, we hold with the Toribio Case that the carabao, as the poor man's tractor, so to
speak, has a direct relevance to the public welfare and so is a lawful subject of Executive Order No. 626. The method
chosen in the basic measure is also reasonably necessary for the purpose sought to be achieved and not unduly
oppressive upon individuals, again following the above-cited doctrine. There is no doubt that by banning the slaughter of
these animals except where they are at least seven years old if male and eleven years old if female upon issuance of the
necessary permit, the executive order will be conserving those still fit for farm work or breeding and preventing their
improvident depletion.
But while conceding that the amendatory measure has the same lawful subject as the original executive order, we cannot
say with equal certainty that it complies with the second requirement, viz., that there be a lawful method. We note that to
strengthen the original measure, Executive Order No. 626-A imposes an absolute ban not on theslaughter of the carabaos
but on their movement, providing that "no carabao regardless of age, sex, physical condition or purpose (sic) and no
carabeef shall be transported from one province to another." The object of the prohibition escapes us. The reasonable

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connection between the means employed and the purpose sought to be achieved by the questioned measure is missing
We do not see how the prohibition of the inter-provincial transport of carabaos can prevent their indiscriminate slaughter,
considering that they can be killed anywhere, with no less difficulty in one province than in another. Obviously, retaining the
carabaos in one province will not prevent their slaughter there, any more than moving them to another province will make it
easier to kill them there. As for the carabeef, the prohibition is made to apply to it as otherwise, so says executive order, it
could be easily circumvented by simply killing the animal. Perhaps so. However, if the movement of the live animals for the
purpose of preventing their slaughter cannot be prohibited, it should follow that there is no reason either to prohibit their
transfer as, not to be flippant dead meat.
Even if a reasonable relation between the means and the end were to be assumed, we would still have to reckon with the
sanction that the measure applies for violation of the prohibition. The penalty is outright confiscation of the carabao or
carabeef being transported, to be meted out by the executive authorities, usually the police only. In the Toribio Case, the
statute was sustained because the penalty prescribed was fine and imprisonment, to be imposed by the court after trial and
conviction of the accused. Under the challenged measure, significantly, no such trial is prescribed, and the property being
transported is immediately impounded by the police and declared, by the measure itself, as forfeited to the government.
In the instant case, the carabaos were arbitrarily confiscated by the police station commander, were returned to the
petitioner only after he had filed a complaint for recovery and given a supersedeas bond of P12,000.00, which was ordered
confiscated upon his failure to produce the carabaos when ordered by the trial court. The executive order defined the
prohibition, convicted the petitioner and immediately imposed punishment, which was carried out forthright. The measure
struck at once and pounced upon the petitioner without giving him a chance to be heard, thus denying him the centuries-old
guaranty of elementary fair play.
It has already been remarked that there are occasions when notice and hearing may be validly dispensed with
notwithstanding the usual requirement for these minimum guarantees of due process. It is also conceded that summary
action may be validly taken in administrative proceedings as procedural due process is not necessarily judicial only. 20 In
the exceptional cases accepted, however. there is a justification for the omission of the right to a previous hearing, to wit,
the immediacy of the problem sought to be corrected and the urgency of the need to correct it.
In the case before us, there was no such pressure of time or action calling for the petitioner's peremptory treatment. The
properties involved were not even inimical per se as to require their instant destruction. There certainly was no reason why
the offense prohibited by the executive order should not have been proved first in a court of justice, with the accused being
accorded all the rights safeguarded to him under the Constitution. Considering that, as we held in Pesigan v.
Angeles, 21 Executive Order No. 626-A is penal in nature, the violation thereof should have been pronounced not by the
police only but by a court of justice, which alone would have had the authority to impose the prescribed penalty, and only
after trial and conviction of the accused.
We also mark, on top of all this, the questionable manner of the disposition of the confiscated property as prescribed in the
questioned executive order. It is there authorized that the seized property shall "be distributed to charitable institutions and
other similar institutions as the Chairman of the National Meat Inspection Commissionmay see fit, in the case of carabeef,
and to deserving farmers through dispersal as the Director of Animal Industrymay see fit, in the case of carabaos."
(Emphasis supplied.) The phrase "may see fit" is an extremely generous and dangerous condition, if condition it is. It is
laden with perilous opportunities for partiality and abuse, and even corruption. One searches in vain for the usual standard
and the reasonable guidelines, or better still, the limitations that the said officers must observe when they make their
distribution. There is none. Their options are apparently boundless. Who shall be the fortunate beneficiaries of their
generosity and by what criteria shall they be chosen? Only the officers named can supply the answer, they and they alone
may choose the grantee as they see fit, and in their own exclusive discretion. Definitely, there is here a "roving
commission," a wide and sweeping authority that is not "canalized within banks that keep it from overflowing," in short, a
clearly profligate and therefore invalid delegation of legislative powers.
To sum up then, we find that the challenged measure is an invalid exercise of the police power because the method
employed to conserve the carabaos is not reasonably necessary to the purpose of the law and, worse, is unduly
oppressive. Due process is violated because the owner of the property confiscated is denied the right to be heard in his
defense and is immediately condemned and punished. The conferment on the administrative authorities of the power to
adjudge the guilt of the supposed offender is a clear encroachment on judicial functions and militates against the doctrine
of separation of powers. There is, finally, also an invalid delegation of legislative powers to the officers mentioned therein
who are granted unlimited discretion in the distribution of the properties arbitrarily taken. For these reasons, we hereby
declare Executive Order No. 626-A unconstitutional.
We agree with the respondent court, however, that the police station commander who confiscated the petitioner's carabaos
is not liable in damages for enforcing the executive order in accordance with its mandate. The law was at that time
presumptively valid, and it was his obligation, as a member of the police, to enforce it. It would have been impertinent of
him, being a mere subordinate of the President, to declare the executive order unconstitutional and, on his own
responsibility alone, refuse to execute it. Even the trial court, in fact, and the Court of Appeals itself did not feel they had the
competence, for all their superior authority, to question the order we now annul. The Court notes that if the petitioner had
not seen fit to assert and protect his rights as he saw them, this case would never have reached us and the taking of his
property under the challenged measure would have become afait accompli despite its invalidity. We commend him for his
spirit. Without the present challenge, the matter would have ended in that pump boat in Masbate and another violation of
the Constitution, for all its obviousness, would have been perpetrated, allowed without protest, and soon forgotten in the

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limbo of relinquished rights.
The strength of democracy lies not in the rights it guarantees but in the courage of the people to invoke them whenever
they are ignored or violated. Rights are but weapons on the wall if, like expensive tapestry, all they do is embellish and
impress. Rights, as weapons, must be a promise of protection. They become truly meaningful, and fulfill the role assigned
to them in the free society, if they are kept bright and sharp with use by those who are not afraid to assert them.
WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional. Except as affirmed above, the decision of the Court of
Appeals is reversed. The supersedeas bond is cancelled and the amount thereof is ordered restored to the petitioner. No costs.
SO ORDERED.

G.R. No. 15574

September 17, 1919

SMITH, BELL & COMPANY (LTD.), petitioner,

vs.
JOAQUIN NATIVIDAD, Collector of Customs of the port of Cebu, respondent.
Ross and Lawrence for petitioner.
Attorney-General Paredes for respondent.
MALCOLM, J.:
A writ of mandamus is prayed for by Smith, Bell & Co. (Ltd.), against Joaquin Natividad, Collector of Customs of the port of
Cebu, Philippine Islands, to compel him to issue a certificate of Philippine registry to the petitioner for its motor vessel Bato.
The Attorney-General, acting as counsel for respondent, demurs to the petition on the general ground that it does not state
facts sufficient to constitute a cause of action. While the facts are thus admitted, and while, moreover, the pertinent
provisions of law are clear and understandable, and interpretative American jurisprudence is found in abundance, yet the
issue submitted is not lightly to be resolved. The question, flatly presented, is, whether Act. No. 2761 of the Philippine
Legislature is valid or, more directly stated, whether the Government of the Philippine Islands, through its Legislature,
can deny the registry of vessels in its coastwise trade to corporations having alien stockholders.
FACTS.
Smith, Bell & Co., (Ltd.), is a corporation organized and existing under the laws of the Philippine Islands. A majority of its
stockholders are British subjects. It is the owner of a motor vessel known as the Bato built for it in the Philippine Islands in
1916, of more than fifteen tons gross The Bato was brought to Cebu in the present year for the purpose of transporting
plaintiff's merchandise between ports in the Islands. Application was made at Cebu, the home port of the vessel, to the
Collector of Customs for a certificate of Philippine registry. The Collector refused to issue the certificate, giving as his
reason that all the stockholders of Smith, Bell & Co., Ltd., were not citizens either of the United States or of the Philippine
Islands. The instant action is the result.
LAW.
The Act of Congress of April 29, 1908, repealing the Shipping Act of April 30, 1906 but reenacting a portion of section 3 of
this Law, and still in force, provides in its section 1:
That until Congress shall have authorized the registry as vessels of the United States of vessels owned in the
Philippine Islands, the Government of the Philippine Islands is hereby authorized to adopt, from time to time, and
enforce regulations governing the transportation of merchandise and passengers between ports or places in the
Philippine Archipelago. (35 Stat. at L., 70; Section 3912, U. S. Comp Stat. [1916]; 7 Pub. Laws, 364.)
The Act of Congress of August 29, 1916, commonly known as the Jones Law, still in force, provides in section 3, (first
paragraph, first sentence), 6, 7, 8, 10, and 31, as follows.
SEC. 3. 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. . . .
SEC. 6. That the laws now in force in the Philippines shall continue in force and effect, except as altered, amended, or modified
herein, until altered, amended, or repealed by the legislative authority herein provided or by Act of Congress of the United
States.
SEC. 7. That the legislative authority herein provided shall have power, when not inconsistent with this Act, by due enactment to
amend, alter modify, or repeal any law, civil or criminal, continued in force by this Act as it may from time to time see fit
This power shall specifically extend with the limitation herein provided as to the tariff to all laws relating to revenue provided as
to the tariff to all laws relating to revenue and taxation in effect in the Philippines.
SEC. 8. That general legislative power, except as otherwise herein provided, is hereby granted to the Philippine Legislature,
authorized by this Act.
SEC. 10. That while this Act provides that the Philippine government shall have the authority to enact a tariff law the trade

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relations between the islands and the United States shall continue to be governed exclusively by laws of the Congress of the
United States: Provided, That tariff acts or acts amendatory to the tariff of the Philippine Islands shall not become law until they
shall receive the approval of the President of the United States, nor shall any act of the Philippine Legislature affecting
immigration or the currency or coinage laws of the Philippines become a law until it has been approved by the President of the
United States: Provided further, That the President shall approve or disapprove any act mentioned in the foregoing proviso
within six months from and after its enactment and submission for his approval, and if not disapproved within such time it shall
become a law the same as if it had been specifically approved.
SEC. 31. That all laws or parts of laws applicable to the Philippines not in conflict with any of the provisions of this Act are
hereby continued in force and effect." (39 Stat at L., 546.)

On February 23, 1918, the Philippine Legislature enacted Act No. 2761. The first section of this law amended section 1172
of the Administrative Code to read as follows:
SEC. 1172. Certificate of Philippine register. Upon registration of a vessel of domestic ownership, and of more than fifteen
tons gross, a certificate of Philippine register shall be issued for it. If the vessel is of domestic ownership and of fifteen tons
gross or less, the taking of the certificate of Philippine register shall be optional with the owner.
"Domestic ownership," as used in this section, means ownership vested in some one or more of the following classes of
persons: (a) Citizens or native inhabitants of the Philippine Islands; (b) citizens of the United States residing in the Philippine
Islands; (c) any corporation or company composed wholly of citizens of the Philippine Islands or of the United States or of both,
created under the laws of the United States, or of any State thereof, or of thereof, or the managing agent or master of the vessel
resides in the Philippine Islands
Any vessel of more than fifteen gross tons which on February eighth, nineteen hundred and eighteen, had a certificate of
Philippine register under existing law, shall likewise be deemed a vessel of domestic ownership so long as there shall not be
any change in the ownership thereof nor any transfer of stock of the companies or corporations owning such vessel to person

not included under the last preceding paragraph.

Sections 2 and 3 of Act No. 2761 amended sections 1176 and 1202 of the Administrative Code to read as follows:
SEC. 1176. Investigation into character of vessel. No application for a certificate of Philippine register shall be approved
until the collector of customs is satisfied from an inspection of the vessel that it is engaged or destined to be engaged in
legitimate trade and that it is of domestic ownership as such ownership is defined in section eleven hundred and seventy-two of
this Code.
The collector of customs may at any time inspect a vessel or examine its owner, master, crew, or passengers in order to
ascertain whether the vessel is engaged in legitimate trade and is entitled to have or retain the certificate of Philippine register.
SEC. 1202. Limiting number of foreign officers and engineers on board vessels. No Philippine vessel operating in the
coastwise trade or on the high seas shall be permitted to have on board more than one master or one mate and one engineer
who are not citizens of the United States or of the Philippine Islands, even if they hold licenses under section one thousand one
hundred and ninety-nine hereof. No other person who is not a citizen of the United States or of the Philippine Islands shall be an
officer or a member of the crew of such vessel. Any such vessel which fails to comply with the terms of this section shall be
required to pay an additional tonnage tax of fifty centavos per net ton per month during the continuance of said failure.

ISSUES.
Predicated on these facts and provisions of law, the issues as above stated recur, namely, whether Act No 2761 of the
Philippine Legislature is valid in whole or in part whether the Government of the Philippine Islands, through its
Legislature, can deny the registry of vessel in its coastwise trade to corporations having alien stockholders .
OPINION.
1. Considered from a positive standpoint, there can exist no measure of doubt as to the power of the Philippine Legislature
to enact Act No. 2761. The Act of Congress of April 29, 1908, with its specific delegation of authority to the Government of
the Philippine Islands to regulate the transportation of merchandise and passengers between ports or places therein, the
liberal construction given to the provisions of the Philippine Bill, the Act of Congress of July 1, 1902, by the courts, and the
grant by the Act of Congress of August 29, 1916, of general legislative power to the Philippine Legislature, are certainly
superabundant authority for such a law. While the Act of the local legislature may in a way be inconsistent with the Act of
Congress regulating the coasting trade of the Continental United States, yet the general rule that only such laws of the
United States have force in the Philippines as are expressly extended thereto, and the abnegation of power by Congress in
favor of the Philippine Islands would leave no starting point for convincing argument. As a matter of fact, counsel for
petitioner does not assail legislative action from this direction (See U. S. vs. Bull [1910], 15 Phil., 7; Sinnot vs. Davenport
[1859] 22 How., 227.)
2. It is from the negative, prohibitory standpoint that counsel argues against the constitutionality of Act No. 2761. The first
paragraph of the Philippine Bill of Rights of the Philippine Bill, repeated again in the first paragraph of the Philippine Bill of
Rights as set forth in the Jones Law, provides "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."
Counsel says that Act No. 2761 denies to Smith, Bell & Co., Ltd., the equal protection of the laws because it, in effect,
prohibits the corporation from owning vessels, and because classification of corporations based on the citizenship of one or
more of their stockholders is capricious, and that Act No. 2761 deprives the corporation of its properly without due process

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of law because by the passage of the law company was automatically deprived of every beneficial attribute of ownership in
the Bato and left with the naked title to a boat it could not use .
The guaranties extended by the Congress of the United States to the Philippine Islands have been used in the same sense
as like provisions found in the United States Constitution. While the "due process of law and equal protection of the laws"
clause of the Philippine Bill of Rights is couched in slightly different words than the corresponding clause of the Fourteenth
Amendment to the United States Constitution, the first should be interpreted and given the same force and effect as the
latter. (Kepner vs. U.S. [1904], 195 U. S., 100; Sierra vs. Mortiga [1907], 204 U. S.,.470; U. S. vs. Bull [1910], 15 Phil., 7.)
The meaning of the Fourteenth Amendment has been announced in classic decisions of the United States Supreme Court.
Even at the expense of restating what is so well known, these basic principles must again be set down in order to serve as
the basis of this decision.
The guaranties of the Fourteenth Amendment and so of the first paragraph of the Philippine Bill of Rights, are universal in
their application to all person within the territorial jurisdiction, without regard to any differences of race, color, or nationality.
The word "person" includes aliens. (Yick Wo vs. Hopkins [1886], 118 U. S., 356; Truax vs. Raich [1915], 239 U. S., 33.)
Private corporations, likewise, are "persons" within the scope of the guaranties in so far as their property is concerned.
(Santa Clara County vs. Southern Pac. R. R. Co. [1886], 118.U. S., 394; Pembina Mining Co. vs. Pennsylvania [1888],.125
U. S., 181 Covington & L. Turnpike Road Co. vs. Sandford [1896], 164 U. S., 578.) Classification with the end in view of
providing diversity of treatment may be made among corporations, but must be based upon some reasonable ground and
not be a mere arbitrary selection (Gulf, Colorado & Santa Fe Railway Co. vs. Ellis [1897],.165 U. S., 150.) Examples of
laws held unconstitutional because of unlawful discrimination against aliens could be cited. Generally, these decisions
relate to statutes which had attempted arbitrarily to forbid aliens to engage in ordinary kinds of business to earn their living.
(State vs.Montgomery [1900], 94 Maine, 192, peddling but see. Commonwealth vs. Hana [1907], 195 Mass., 262;
Templar vs. Board of Examiners of Barbers [1902], 131 Mich., 254, barbers; Yick Wo vs. Hopkins [1886], 118 U. S.,.356,
discrimination against Chinese; Truax vs. Raich [1915], 239 U. S., 33; In re Parrott [1880], 1 Fed , 481;
Fraser vs. McConway & Torley Co. [1897], 82 Fed , 257; Juniata Limestone Co. vs. Fagley [1898], 187 Penn., 193, all
relating to the employment of aliens by private corporations.)
A literal application of general principles to the facts before us would, of course, cause the inevitable deduction that Act No.
2761 is unconstitutional by reason of its denial to a corporation, some of whole members are foreigners, of the equal
protection of the laws. Like all beneficient propositions, deeper research discloses provisos. Examples of a denial of rights
to aliens notwithstanding the provisions of the Fourteenth Amendment could be cited. (Tragesser vs. Gray [1890], 73 Md.,
250, licenses to sell spirituous liquors denied to persons not citizens of the United States; Commonwealth vs. Hana [1907],
195 Mass , 262, excluding aliens from the right to peddle; Patsone vs. Commonwealth of Pennsylvania [1914], 232 U. S. ,
138, prohibiting the killing of any wild bird or animal by any unnaturalized foreign-born resident; Ex parte Gilleti [1915], 70
Fla., 442, discriminating in favor of citizens with reference to the taking for private use of the common property in fish and
oysters found in the public waters of the State; Heim vs. McCall [1915], 239 U. S.,.175, and Crane vs. New York [1915],
239 U. S., 195, limiting employment on public works by, or for, the State or a municipality to citizens of the United States.)
One of the exceptions to the general rule, most persistent and far reaching in influence is, that neither the Fourteenth
Amendment to the United States Constitution, broad and comprehensive as it is, nor any other amendment, "was designed
to interfere with the power of the State, sometimes termed its `police power,' to prescribe regulations to promote the health,
peace, morals, education, and good order of the people, and legislate so as to increase the industries of the State, develop
its resources and add to its wealth and prosperity. From the very necessities of society, legislation of a special character,
having these objects in view, must often be had in certain districts." (Barbier vs. Connolly [1884], 113 U.S., 27; New
Orleans Gas Co. vs. Lousiana Light Co. [1885], 115 U.S., 650.) This is the same police power which the United States
Supreme Court say "extends to so dealing with the conditions which exist in the state as to bring out of them the greatest
welfare in of its people." (Bacon vs.Walker [1907], 204 U.S., 311.) For quite similar reasons, none of the provision of the
Philippine Organic Law could could have had the effect of denying to the Government of the Philippine Islands, acting
through its Legislature, the right to exercise that most essential, insistent, and illimitable of powers, the sovereign police
power, in the promotion of the general welfare and the public interest. (U. S. vs. Toribio [1910], 15 Phil., 85; Churchill and
Taitvs. Rafferty [1915], 32 Phil., 580; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.) Another notable exception
permits of the regulation or distribution of the public domain or the common property or resources of the people of the
State, so that use may be limited to its citizens. (Ex parte Gilleti [1915], 70 Fla., 442; McCready vs.Virginia [1876], 94 U. S.,
391; Patsone vs. Commonwealth of Pennsylvania [1914], 232U. S., 138.) Still another exception permits of the limitation of
employment in the construction of public works by, or for, the State or a municipality to citizens of the United States or of
the State. (Atkin vs. Kansas [1903],191 U. S., 207; Heim vs.McCall [1915], 239 U.S., 175; Crane vs. New York [1915], 239
U. S., 195.) Even as to classification, it is admitted that a State may classify with reference to the evil to be prevented; the
question is a practical one, dependent upon experience. (Patsone vs. Commonwealth of Pennsylvania [1914], 232 U. S.,
138.)
To justify that portion of Act no. 2761 which permits corporations or companies to obtain a certificate of Philippine registry
only on condition that they be composed wholly of citizens of the Philippine Islands or of the United States or both, as not
infringing Philippine Organic Law, it must be done under some one of the exceptions here mentioned This must be done,
moreover, having particularly in mind what is so often of controlling effect in this jurisdiction our local experience and our
peculiar local conditions.
To recall a few facts in geography, within the confines of Philippine jurisdictional limits are found more than three thousand
islands. Literally, and absolutely, steamship lines are, for an Insular territory thus situated, the arteries of commerce. If one
be severed, the life-blood of the nation is lost. If on the other hand these arteries are protected, then the security of the
country and the promotion of the general welfare is sustained. Time and again, with such conditions confronting it, has the
executive branch of the Government of the Philippine Islands, always later with the sanction of the judicial branch, taken a

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firm stand with reference to the presence of undesirable foreigners. The Government has thus assumed to act for the allsufficient and primitive reason of the benefit and protection of its own citizens and of the self-preservation and integrity of its
dominion. (In re Patterson [1902], 1 Phil., 93; Forbes vs. Chuoco, Tiaco and Crossfield [1910], 16 Phil., 534;.228 U.S.,
549; In re McCulloch Dick [1918], 38 Phil., 41.) Boats owned by foreigners, particularly by such solid and reputable firms as
the instant claimant, might indeed traverse the waters of the Philippines for ages without doing any particular harm. Again,
some evilminded foreigner might very easily take advantage of such lavish hospitality to chart Philippine waters, to obtain
valuable information for unfriendly foreign powers, to stir up insurrection, or to prejudice Filipino or American commerce.
Moreover, under the Spanish portion of Philippine law, the waters within the domestic jurisdiction are deemed part of the
national domain, open to public use. (Book II, Tit. IV, Ch. I, Civil Code; Spanish Law of Waters of August 3, 1866, arts 1, 2,
3.) Common carriers which in the Philippines as in the United States and other countries are, as Lord Hale said, "affected
with a public interest," can only be permitted to use these public waters as a privilege and under such conditions as to the
representatives of the people may seem wise. (See De Villata vs. Stanley [1915], 32 Phil., 541.)
In Patsone vs. Commonwealth of Pennsylvania ([1913], 232 U.S., 138), a case herein before mentioned, Justice Holmes
delivering the opinion of the United States Supreme Court said:
This statute makes it unlawful for any unnaturalized foreign-born resident to kill any wild bird or animal except in
defense of person or property, and `to that end' makes it unlawful for such foreign-born person to own or be
possessed of a shotgun or rifle; with a penalty of $25 and a forfeiture of the gun or guns. The plaintiff in error was
found guilty and was sentenced to pay the abovementioned fine. The judgment was affirmed on successive
appeals. (231 Pa., 46; 79 Atl., 928.) He brings the case to this court on the ground that the statute is contrary to the
14th Amendment and also is in contravention of the treaty between the United States and Italy, to which latter
country the plaintiff in error belongs .
Under the 14th Amendment the objection is twofold; unjustifiably depriving the alien of property, and discrimination
against such aliens as a class. But the former really depends upon the latter, since it hardly can be disputed that if
the lawful object, the protection of wild life (Geer vs. Connecticut, 161 U.S., 519; 40 L. ed., 793; 16 Sup. Ct. Rep.,
600), warrants the discrimination, the, means adopted for making it effective also might be adopted. . . .
The discrimination undoubtedly presents a more difficult question. But we start with reference to the evil to be
prevented, and that if the class discriminated against is or reasonably might be considered to define those from
whom the evil mainly is to be feared, it properly may be picked out. A lack of abstract symmetry does not matter.
The question is a practical one, dependent upon experience. . . .
The question therefore narrows itself to whether this court can say that the legislature of Pennsylvania was not
warranted in assuming as its premise for the law that resident unnaturalized aliens were the peculiar source of the
evil that it desired to prevent. (Barrett vs. Indiana,. 229 U.S., 26, 29; 57 L. ed., 1050, 1052; 33 Sup. Ct. Rep., 692.)
Obviously the question, so stated, is one of local experience, on which this court ought to be very slow to declare
that the state legislature was wrong in its facts (Adams vs. Milwaukee, 228 U.S., 572, 583; 57 L. ed., 971,.977; 33
Sup. Ct. Rep., 610.) If we might trust popular speech in some states it was right; but it is enough that this court has
no such knowledge of local conditions as to be able to say that it was manifestly wrong. . . .
Judgment affirmed.
We are inclined to the view that while Smith, Bell & Co. Ltd., a corporation having alien stockholders, is entitled to the
protection afforded by the due-process of law and equal protection of the laws clause of the Philippine Bill of Rights,
nevertheless, Act No. 2761 of the Philippine Legislature, in denying to corporations such as Smith, Bell &. Co. Ltd., the right
to register vessels in the Philippines coastwise trade, does not belong to that vicious species of class legislation which must
always be condemned, but does fall within authorized exceptions, notably, within the purview of the police power, and so
does not offend against the constitutional provision.
This opinion might well be brought to a close at this point. It occurs to us, however, that the legislative history of the United
States and the Philippine Islands, and, probably, the legislative history of other countries, if we were to take the time to
search it out, might disclose similar attempts at restriction on the right to enter the coastwise trade, and might thus furnish
valuable aid by which to ascertain and, if possible, effectuate legislative intention.
3. The power to regulate commerce, expressly delegated to the Congress by the Constitution, includes the power
to nationalize ships built and owned in the United States by registries and enrollments, and the recording of the
muniments of title of American vessels. The Congress "may encourage or it may entirely prohibit such commerce,
and it may regulate in any way it may see fit between these two extremes." (U.S. vs.Craig [1886], 28 Fed., 795;
Gibbons vs. Ogden [1824], 9 Wheat., 1; The Passenger Cases [1849], 7 How., 283.)
Acting within the purview of such power, the first Congress of the United States had not been long convened before it
enacted on September 1, 1789, "An Act for Registering and Clearing Vessels, Regulating the Coasting Trade, and for other
purposes." Section 1 of this law provided that for any ship or vessel to obtain the benefits of American registry, it must
belong wholly to a citizen or citizens of the United States "and no other." (1 Stat. at L., 55.) That Act was shortly after
repealed, but the same idea was carried into the Acts of Congress of December 31, 1792 and February 18, 1793. (1 Stat.
at L., 287, 305.).Section 4 of the Act of 1792 provided that in order to obtain the registry of any vessel, an oath shall be
taken and subscribed by the owner, or by one of the owners thereof, before the officer authorized to make such registry,
declaring, "that there is no subject or citizen of any foreign prince or state, directly or indirectly, by way of trust, confidence,

87
or otherwise, interested in such vessel, or in the profits or issues thereof." Section 32 of the Act of 1793 even went so far as
to say "that if any licensed ship or vessel shall be transferred to any person who is not at the time of such transfer a citizen
of and resident within the United States, ... every such vessel with her tackle, apparel, and furniture, and the cargo found
on board her, shall be forefeited." In case of alienation to a foreigner, Chief Justice Marshall said that all the privileges of an
American bottom were ipso facto forfeited. (U.S. vs. Willings and Francis [1807], 4 Cranch, 48.) Even as late as 1873, the
Attorney-General of the United States was of the opinion that under the provisions of the Act of December 31, 1792, no
vessel in which a foreigner is directly or indirectly interested can lawfully be registered as a vessel of the United. States. (14
Op. Atty.-Gen. [U.S.], 340.)
These laws continued in force without contest, although possibly the Act of March 3, 1825, may have affected them, until
amended by the Act of May 28, 1896 (29 Stat. at L., 188) which extended the privileges of registry from vessels wholly
owned by a citizen or citizens of the United States to corporations created under the laws of any of the states thereof. The
law, as amended, made possible the deduction that a vessel belonging to a domestic corporation was entitled to registry or
enrollment even though some stock of the company be owned by aliens. The right of ownership of stock in a corporation
was thereafter distinct from the right to hold the property by the corporation (Humphreys vs. McKissock [1890], 140 U.S.,
304; Queen vs. Arnaud [1846], 9 Q. B., 806; 29 Op. Atty.-Gen. [U.S.],188.)
On American occupation of the Philippines, the new government found a substantive law in operation in the Islands with a
civil law history which it wisely continued in force Article fifteen of the Spanish Code of Commerce permitted any foreigner
to engage in Philippine trade if he had legal capacity to do so under the laws of his nation. When the Philippine
Commission came to enact the Customs Administrative Act (No. 355) in 1902, it returned to the old American policy of
limiting the protection and flag of the United States to vessels owned by citizens of the United States or by native
inhabitants of the Philippine Islands (Sec. 117.) Two years later, the same body reverted to the existing Congressional law
by permitting certification to be issued to a citizen of the United States or to a corporation or company created under the
laws of the United States or of any state thereof or of the Philippine Islands (Act No. 1235, sec. 3.) The two administration
codes repeated the same provisions with the necessary amplification of inclusion of citizens or native inhabitants of the
Philippine Islands (Adm. Code of 1916, sec. 1345; Adm. Code of 1917, sec. 1172). And now Act No. 2761 has returned to
the restrictive idea of the original Customs Administrative Act which in turn was merely a reflection of the statutory language
of the first American Congress.
Provisions such as those in Act No. 2761, which deny to foreigners the right to a certificate of Philippine registry, are thus
found not to be as radical as a first reading would make them appear.
Without any subterfuge, the apparent purpose of the Philippine Legislature is seen to be to enact an anti-alien shipping act.
The ultimate purpose of the Legislature is to encourage Philippine ship-building. This, without doubt, has, likewise, been
the intention of the United States Congress in passing navigation or tariff laws on different occasions. The object of such a
law, the United States Supreme Court once said, was to encourage American trade, navigation, and ship-building by giving
American ship-owners exclusive privileges. (Old Dominion Steamship Co. vs. Virginia [1905], 198 U.S., 299; Kent's
Commentaries, Vol. 3, p. 139.)
In the concurring opinion of Justice Johnson in Gibbons vs. Ogden ([1824], 9 Wheat., 1) is found the following:
Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts licensing gaming
houses, retailers of spirituous liquors, etc. The act, in this instance, is distinctly of that character, and forms part of
an extensive system, the object of which is to encourage American shipping, and place them on an equal footing
with the shipping of other nations. Almost every commercial nation reserves to its own subjects a monopoly of its
coasting trade; and a countervailing privilege in favor of American shipping is contemplated, in the whole legislation
of the United States on this subject. It is not to give the vessel an American character, that the license is granted;
that effect has been correctly attributed to the act of her enrollment. But it is to confer on her American privileges,
as contradistinguished from foreign; and to preserve the. Government from fraud by foreigners, in surreptitiously
intruding themselves into the American commercial marine, as well as frauds upon the revenue in the trade
coastwise, that this whole system is projected.
The United States Congress in assuming its grave responsibility of legislating wisely for a new country did so imbued with a
spirit of Americanism. Domestic navigation and trade, it decreed, could only be carried on by citizens of the United States. If
the representatives of the American people acted in this patriotic manner to advance the national policy, and if their action
was accepted without protest in the courts, who can say that they did not enact such beneficial laws under the all-pervading
police power, with the prime motive of safeguarding the country and of promoting its prosperity? Quite similarly, the
Philippine Legislature made up entirely of Filipinos, representing the mandate of the Filipino people and the guardian of
their rights, acting under practically autonomous powers, and imbued with a strong sense of Philippinism, has desired for
these Islands safety from foreign interlopers, the use of the common property exclusively by its citizens and the citizens of
the United States, and protection for the common good of the people. Who can say, therefore, especially can a court, that
with all the facts and circumstances affecting the Filipino people before it, the Philippine Legislature has erred in the
enactment of Act No. 2761?
Surely, the members of the judiciary are not expected to live apart from active life, in monastic seclusion amidst dusty
tomes and ancient records, but, as keen spectators of passing events and alive to the dictates of the general the
national welfare, can incline the scales of their decisions in favor of that solution which will most effectively promote the
public policy. All the presumption is in favor of the constitutionally of the law and without good and strong reasons, courts
should not attempt to nullify the action of the Legislature. "In construing a statute enacted by the Philippine Commission
(Legislature), we deem it our duty not to give it a construction which would be repugnant to an Act of Congress, if the
language of the statute is fairly susceptible of another construction not in conflict with the higher law." (In re Guaria [1913],

88
24. Phil., 36; U.S. vs. Ten Yu [1912], 24 Phil., 1.) That is the true construction which will best carry legislative intention into
effect.
With full consciousness of the importance of the question, we nevertheless are clearly of the opinion that the limitation of
domestic ownership for purposes of obtaining a certificate of Philippine registry in the coastwise trade to citizens of the
Philippine Islands, and to citizens of the United States, does not violate the provisions of paragraph 1 of section 3 of the Act
of Congress of August 29, 1916 No treaty right relied upon Act No. 2761 of the Philippine Legislature is held valid and
constitutional .
The petition for a writ of mandamus is denied, with costs against the petitioner. So ordered.

89
G.R. No. L-45685

November 16, 1937

THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI BANKING CORPORATION Petitioners,
vs. JOSE O. VERA, Judge . of the Court of First Instance of Manila, and MARIANO CU UNJIENG, Respondents.
LAUREL, J.:
This is an original action instituted in this court on August 19, 1937, for the issuance of the writ of certiorari and of
prohibition to the Court of First Instance of Manila so that this court may review the actuations of the aforesaid Court of
First Instance in criminal case No. 42649 entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et al.",
more particularly the application of the defendant Mariano Cu Unjieng therein for probation under the provisions of Act No.
4221, and thereafter prohibit the said Court of First Instance from taking any further action or entertaining further the
aforementioned application for probation, to the end that the defendant Mariano Cu Unjieng may be forthwith committed
to prison in accordance with the final judgment of conviction rendered by this court in said case (G. R. No. 41200).
Petitioners herein, the People of the Philippine and the Hongkong and Shanghai Banking Corporation, are respectively
the plaintiff and the offended party, and the respondent herein Mariano Cu Unjieng is one of the defendants, in the
criminal case entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", criminal case No. 42649 of the
Court of First Instance of Manila and G.R. No. 41200 of this court. Respondent herein, Hon. Jose O. Vera, is the
Judge ad interim of the seventh branch of the Court of First Instance of Manila, who heard the application of the
defendant Mariano Cu Unjieng for probation in the aforesaid criminal case.
The information in the aforesaid criminal case was filed with the Court of First Instance of Manila on October 15, 1931,
petitioner herein Hongkong and Shanghai Banking Corporation intervening in the case as private prosecutor. After a
protracted trial unparalleled in the annals of Philippine jurisprudence both in the length of time spent by the court as well
as in the volume in the testimony and the bulk of the exhibits presented, the Court of First Instance of Manila, on January
8, 1934, rendered a judgment of conviction sentencing the defendant Mariano Cu Unjieng to indeterminate penalty
ranging from four years and two months of prision correccional to eight years of prision mayor, to pay the costs and with
reservation of civil action to the offended party, the Hongkong and Shanghai Banking Corporation. Upon appeal, the
court, on March 26, 1935, modified the sentence to an indeterminate penalty of from five years and six months of prision
correccional to seven years, six months and twenty-seven days of prision mayor, but affirmed the judgment in all other
respects. Mariano Cu Unjieng filed a motion for reconsideration and four successive motions for new trial which were
denied on December 17, 1935, and final judgment was accordingly entered on December 18, 1935. The defendant
thereupon sought to have the case elevated on certiorari to the Supreme Court of the United States but the latter denied
the petition for certiorari in November, 1936. This court, on November 24, 1936, denied the petition subsequently filed by
the defendant for leave to file a second alternative motion for reconsideration or new trial and thereafter remanded the
case to the court of origin for execution of the judgment.
The instant proceedings have to do with the application for probation filed by the herein respondent Mariano Cu Unjieng
on November 27, 1936, before the trial court, under the provisions of Act No. 4221 of the defunct Philippine Legislature.
Herein respondent Mariano Cu Unjieng states in his petition, inter alia, that he is innocent of the crime of which he was
convicted, that he has no criminal record and that he would observe good conduct in the future. The Court of First
Instance of Manila, Judge Pedro Tuason presiding, referred the application for probation of the Insular Probation Office
which recommended denial of the same June 18, 1937. Thereafter, the Court of First Instance of Manila, seventh branch,
Judge Jose O. Vera presiding, set the petition for hearing on April 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of probation to the herein respondent
Mariano Cu Unjieng. The private prosecution also filed an opposition on April 5, 1937, alleging, among other things, that
Act No. 4221, assuming that it has not been repealed by section 2 of Article XV of the Constitution, is nevertheless
violative of section 1, subsection (1), Article III of the Constitution guaranteeing equal protection of the laws for the reason
that its applicability is not uniform throughout the Islands and because section 11 of the said Act endows the provincial
boards with the power to make said law effective or otherwise in their respective or otherwise in their respective
provinces. The private prosecution also filed a supplementary opposition on April 19, 1937, elaborating on the alleged
unconstitutionality on Act No. 4221, as an undue delegation of legislative power to the provincial boards of several
provinces (sec. 1, Art. VI, Constitution). The City Fiscal concurred in the opposition of the private prosecution except with
respect to the questions raised concerning the constitutionality of Act No. 4221.
On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution with a finding that "las pruebas no
han establecido de unamanera concluyente la culpabilidad del peticionario y que todos los hechos probados no son
inconsistentes o incongrentes con su inocencia" and concludes that the herein respondent Mariano Cu Unjieng "es
inocente por duda racional" of the crime of which he stands convicted by this court in G.R. No. 41200, but denying the
latter's petition for probation for the reason that:
. . . Si este Juzgado concediera la poblacion solicitada por las circunstancias y la historia social que se han expuesto en
el cuerpo de esta resolucion, que hacen al peticionario acreedor de la misma, una parte de la opinion publica, atizada por
los recelos y las suspicacias, podria levantarse indignada contra un sistema de probacion que permite atisbar en los
procedimientos ordinarios de una causa criminal perturbando la quietud y la eficacia de las decisiones ya recaidas al
traer a la superficie conclusiones enteramente differentes, en menoscabo del interes publico que demanda el respeto de
las leyes y del veredicto judicial.
On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed an exception to the resolution denying

90
probation and a notice of intention to file a motion for reconsideration. An alternative motion for reconsideration or new
trial was filed by counsel on July 13, 1937. This was supplemented by an additional motion for reconsideration submitted
on July 14, 1937. The aforesaid motions were set for hearing on July 31, 1937, but said hearing was postponed at the
petition of counsel for the respondent Mariano Cu Unjieng because a motion for leave to intervene in the case as amici
curiae signed by thirty-three (thirty-four) attorneys had just been filed with the trial court. Attorney Eulalio Chaves whose
signature appears in the aforesaid motion subsequently filed a petition for leave to withdraw his appearance as amicus
curiae on the ground that the motion for leave to intervene as amici curiae was circulated at a banquet given by counsel
for Mariano Cu Unjieng on the evening of July 30, 1937, and that he signed the same "without mature deliberation and
purely as a matter of courtesy to the person who invited me (him)."

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On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial court for the issuance of an order of
execution of the judgment of this court in said case and forthwith to commit the herein respondent Mariano Cu Unjieng to
jail in obedience to said judgment.
On August 7, 1937, the private prosecution filed its opposition to the motion for leave to intervene as amici
curiae aforementioned, asking that a date be set for a hearing of the same and that, at all events, said motion should be
denied with respect to certain attorneys signing the same who were members of the legal staff of the several counsel for
Mariano Cu Unjieng. On August 10, 1937, herein respondent Judge Jose O. Vera issued an order requiring all parties
including the movants for intervention as amici curiae to appear before the court on August 14, 1937. On the lastmentioned date, the Fiscal of the City of Manila moved for the hearing of his motion for execution of judgment in
preference to the motion for leave to intervene as amici curiae but, upon objection of counsel for Mariano Cu Unjieng, he
moved for the postponement of the hearing of both motions. The respondent judge thereupon set the hearing of the
motion for execution on August 21, 1937, but proceeded to consider the motion for leave to intervene as amici curiae as
in order. Evidence as to the circumstances under which said motion for leave to intervene as amici curiae was signed and
submitted to court was to have been heard on August 19, 1937. But at this juncture, herein petitioners came to this court
on extraordinary legal process to put an end to what they alleged was an interminable proceeding in the Court of First
Instance of Manila which fostered "the campaign of the defendant Mariano Cu Unjieng for delay in the execution of the
sentence imposed by this Honorable Court on him, exposing the courts to criticism and ridicule because of the apparent
inability of the judicial machinery to make effective a final judgment of this court imposed on the defendant Mariano Cu
Unjieng."
The scheduled hearing before the trial court was accordingly suspended upon the issuance of a temporary restraining
order by this court on August 21, 1937.
To support their petition for the issuance of the extraordinary writs of certiorari and prohibition, herein petitioners allege
that the respondent judge has acted without jurisdiction or in excess of his jurisdiction:
I. Because said respondent judge lacks the power to place respondent Mariano Cu Unjieng under probation for the
following reason:
(1) Under section 11 of Act No. 4221, the said of the Philippine Legislature is made to apply only to the provinces of the
Philippines; it nowhere states that it is to be made applicable to chartered cities like the City of Manila.
(2) While section 37 of the Administrative Code contains a proviso to the effect that in the absence of a special provision,
the term "province" may be construed to include the City of Manila for the purpose of giving effect to laws of general
application, it is also true that Act No. 4221 is not a law of general application because it is made to apply only to those
provinces in which the respective provincial boards shall have provided for the salary of a probation officer.
(3) Even if the City of Manila were considered to be a province, still, Act No. 4221 would not be applicable to it because it
has provided for the salary of a probation officer as required by section 11 thereof; it being immaterial that there is an
Insular Probation Officer willing to act for the City of Manila, said Probation Officer provided for in section 10 of Act No.
4221 being different and distinct from the Probation Officer provided for in section 11 of the same Act.
II. Because even if the respondent judge originally had jurisdiction to entertain the application for probation of the
respondent Mariano Cu Unjieng, he nevertheless acted without jurisdiction or in excess thereof in continuing to entertain
the motion for reconsideration and by failing to commit Mariano Cu Unjieng to prison after he had promulgated his
resolution of June 28, 1937, denying Mariano Cu Unjieng's application for probation, for the reason that:
(1) His jurisdiction and power in probation proceedings is limited by Act No. 4221 to the granting or denying of
applications for probation.
(2) After he had issued the order denying Mariano Cu Unjieng's petition for probation on June 28, 1937, it became final
and executory at the moment of its rendition.
(3) No right on appeal exists in such cases.
(4) The respondent judge lacks the power to grant a rehearing of said order or to modify or change the same.
III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent of the crime for which he was
convicted by final judgment of this court, which finding is not only presumptuous but without foundation in fact and in law,
and is furthermore in contempt of this court and a violation of the respondent's oath of office as ad interim judge of first
instance.
IV. Because the respondent judge has violated and continues to violate his duty, which became imperative when he
issued his order of June 28, 1937, denying the application for probation, to commit his co-respondent to jail.
Petitioners also avers that they have no other plain, speedy and adequate remedy in the ordinary course of law.
In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and Shanghai Banking Corporation
further contends that Act No. 4221 of the Philippine Legislature providing for a system of probation for persons eighteen
years of age or over who are convicted of crime, is unconstitutional because it is violative of section 1, subsection (1),
Article III, of the Constitution of the Philippines guaranteeing equal protection of the laws because it confers upon the
provincial board of its province the absolute discretion to make said law operative or otherwise in their respective

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provinces, because it constitutes an unlawful and improper delegation to the provincial boards of the several provinces of
the legislative power lodged by the Jones Law (section 8) in the Philippine Legislature and by the Constitution (section 1,
Art. VI) in the National Assembly; and for the further reason that it gives the provincial boards, in contravention of the
Constitution (section 2, Art. VIII) and the Jones Law (section 28), the authority to enlarge the powers of the Court of First
Instance of different provinces without uniformity. In another supplementary petition dated September 14, 1937, the Fiscal
of the City of Manila, in behalf of one of the petitioners, the People of the Philippine Islands, concurs for the first time with
the issues raised by other petitioner regarding the constitutionality of Act No. 4221, and on the oral argument held on
October 6, 1937, further elaborated on the theory that probation is a form of reprieve and therefore Act. No. 4221 is an
encroachment on the exclusive power of the Chief Executive to grant pardons and reprieves. On October 7, 1937, the
City Fiscal filed two memorandums in which he contended that Act No. 4221 not only encroaches upon the pardoning
power to the executive, but also constitute an unwarranted delegation of legislative power and a denial of the equal
protection of the laws. On October 9, 1937, two memorandums, signed jointly by the City Fiscal and the Solicitor-General,
acting in behalf of the People of the Philippine Islands, and by counsel for the petitioner, the Hongkong and Shanghai
Banking Corporation, one sustaining the power of the state to impugn the validity of its own laws and the other contending
that Act No. 4221 constitutes an unwarranted delegation of legislative power, were presented. Another joint memorandum
was filed by the same persons on the same day, October 9, 1937, alleging that Act No. 4221 is unconstitutional because it
denies the equal protection of the laws and constitutes an unlawful delegation of legislative power and, further, that the
whole Act is void: that the Commonwealth is not estopped from questioning the validity of its laws; that the private
prosecution may intervene in probation proceedings and may attack the probation law as unconstitutional; and that this
court may pass upon the constitutional question in prohibition proceedings.
Respondents in their answer dated August 31, 1937, as well as in their oral argument and memorandums, challenge each
and every one of the foregoing proposition raised by the petitioners.
As special defenses, respondents allege:
(1) That the present petition does not state facts sufficient in law to warrant the issuance of the writ of certiorarior of
prohibition.
(2) That the aforesaid petition is premature because the remedy sought by the petitioners is the very same remedy
prayed for by them before the trial court and was still pending resolution before the trial court when the present petition
was filed with this court.
(3) That the petitioners having themselves raised the question as to the execution of judgment before the trial court, said
trial court has acquired exclusive jurisdiction to resolve the same under the theory that its resolution denying probation is
unappealable.
(4) That upon the hypothesis that this court has concurrent jurisdiction with the Court of First Instance to decide the
question as to whether or not the execution will lie, this court nevertheless cannot exercise said jurisdiction while the
Court of First Instance has assumed jurisdiction over the same upon motion of herein petitioners themselves.
(5) That upon the procedure followed by the herein petitioners in seeking to deprive the trial court of its jurisdiction over
the case and elevate the proceedings to this court, should not be tolerated because it impairs the authority and dignity of
the trial court which court while sitting in the probation cases is "a court of limited jurisdiction but of great dignity."
(6) That under the supposition that this court has jurisdiction to resolve the question submitted to and pending resolution
by the trial court, the present action would not lie because the resolution of the trial court denying probation is appealable;
for although the Probation Law does not specifically provide that an applicant for probation may appeal from a resolution
of the Court of First Instance denying probation, still it is a general rule in this jurisdiction that a final order, resolution or
decision of an inferior court is appealable to the superior court.
(7) That the resolution of the trial court denying probation of herein respondent Mariano Cu Unjieng being appealable, the
same had not become final and executory for the reason that the said respondent had filed an alternative motion for
reconsideration and new trial within the requisite period of fifteen days, which motion the trial court was able to resolve in
view of the restraining order improvidently and erroneously issued by this court.
(8) That the Fiscal of the City of Manila had by implication admitted that the resolution of the trial court denying probation
is not final and unappealable when he presented his answer to the motion for reconsideration and agreed to the
postponement of the hearing of the said motion.
(9) That under the supposition that the order of the trial court denying probation is not appealable, it is incumbent upon
the accused to file an action for the issuance of the writ of certiorari with mandamus, it appearing that the trial court,
although it believed that the accused was entitled to probation, nevertheless denied probation for fear of criticism because
the accused is a rich man; and that, before a petition for certiorarigrounded on an irregular exercise of jurisdiction by the
trial court could lie, it is incumbent upon the petitioner to file a motion for reconsideration specifying the error committed
so that the trial court could have an opportunity to correct or cure the same.
(10) That on hypothesis that the resolution of this court is not appealable, the trial court retains its jurisdiction within a
reasonable time to correct or modify it in accordance with law and justice; that this power to alter or modify an order or
resolution is inherent in the courts and may be exercise either motu proprio or upon petition of the proper party, the
petition in the latter case taking the form of a motion for reconsideration.

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(11) That on the hypothesis that the resolution of the trial court is appealable as respondent allege, said court cannot
order execution of the same while it is on appeal, for then the appeal would not be availing because the doors of
probation will be closed from the moment the accused commences to serve his sentence (Act No. 4221, sec. 1; U.S. vs.
Cook, 19 Fed. [2d], 827).
In their memorandums filed on October 23, 1937, counsel for the respondents maintain that Act No. 4221 is constitutional
because, contrary to the allegations of the petitioners, it does not constitute an undue delegation of legislative power,
does not infringe the equal protection clause of the Constitution, and does not encroach upon the pardoning power of the
Executive. In an additional memorandum filed on the same date, counsel for the respondents reiterate the view that
section 11 of Act No. 4221 is free from constitutional objections and contend, in addition, that the private prosecution may
not intervene in probation proceedings, much less question the validity of Act No. 4221; that both the City Fiscal and the
Solicitor-General are estopped from questioning the validity of the Act; that the validity of Act cannot be attacked for the
first time before this court; that probation in unavailable; and that, in any event, section 11 of the Act No. 4221 is
separable from the rest of the Act. The last memorandum for the respondent Mariano Cu Unjieng was denied for having
been filed out of time but was admitted by resolution of this court and filed anew on
November 5, 1937. This
memorandum elaborates on some of the points raised by the respondents and refutes those brought up by the
petitioners.
In the scrutiny of the pleadings and examination of the various aspects of the present case, we noted that the court below,
in passing upon the merits of the application of the respondent Mariano Cu Unjieng and in denying said application
assumed the task not only of considering the merits of the application, but of passing upon the culpability of the applicant,
notwithstanding the final pronouncement of guilt by this court. (G.R. No. 41200.) Probation implies guilt be final judgment.
While a probation case may look into the circumstances attending the commission of the offense, this does not authorize
it to reverse the findings and conclusive of this court, either directly or indirectly, especially wherefrom its own admission
reliance was merely had on the printed briefs, averments, and pleadings of the parties. As already observed by this court
in Shioji vs. Harvey ([1922], 43 Phil., 333, 337), and reiterated in subsequent cases, "if each and every Court of First
Instance could enjoy the privilege of overruling decisions of the Supreme Court, there would be no end to litigation, and
judicial chaos would result." A becoming modesty of inferior courts demands conscious realization of the position that they
occupy in the interrelation and operation of the intergrated judicial system of the nation.
After threshing carefully the multifarious issues raised by both counsel for the petitioners and the respondents, this court
prefers to cut the Gordian knot and take up at once the two fundamental questions presented, namely, (1) whether or not
the constitutionality of Act No. 4221 has been properly raised in these proceedings; and (2) in the affirmative, whether or
not said Act is constitutional. Considerations of these issues will involve a discussion of certain incidental questions raised
by the parties.
To arrive at a correct conclusion on the first question, resort to certain guiding principles is necessary. It is a well-settled
rule that the constitutionality of an act of the legislature will not be determined by the courts unless that question is
properly raised and presented inappropriate cases and is necessary to a determination of the case; i.e., the issue of
constitutionality must be the very lis motapresented. (McGirr vs. Hamilton and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L.,
pp. 76, 77; 12 C. J., pp. 780-782, 783.)
The question of the constitutionality of an act of the legislature is frequently raised in ordinary actions. Nevertheless,
resort may be made to extraordinary legal remedies, particularly where the remedies in the ordinary course of law even if
available, are not plain, speedy and adequate. Thus, in Cu Unjieng vs. Patstone ([1922]), 42 Phil., 818), this court held
that the question of the constitutionality of a statute may be raised by the petitioner in mandamus proceedings (see, also,
12 C. J., p. 783); and in Government of the Philippine Islands vs. Springer ([1927], 50 Phil., 259 [affirmed in Springer vs.
Government of the Philippine Islands (1928), 277 U. S., 189; 72 Law. ed., 845]), this court declared an act of the
legislature unconstitutional in an action of quo warranto brought in the name of the Government of the Philippines. It has
also been held that the constitutionality of a statute may be questioned in habeas corpus proceedings (12 C. J., p. 783;
Bailey on Habeas Corpus, Vol. I, pp. 97, 117), although there are authorities to the contrary; on an application for
injunction to restrain action under the challenged statute (mandatory, see Cruz vs. Youngberg [1931], 56 Phil., 234); and
even on an application for preliminary injunction where the determination of the constitutional question is necessary to a
decision of the case. (12 C. J., p. 783.) The same may be said as regards prohibition and certiorari.(Yu Cong Eng vs.
Trinidad [1925], 47 Phil., 385; [1926], 271 U. S., 500; 70 Law. ed., 1059; Bell vs. First Judicial District Court [1905], 28
Nev., 280; 81 Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982; 1 L. R. A. [N. S], 843, and cases cited). The case of Yu Cong
Eng vs. Trinidad, supra, decided by this court twelve years ago was, like the present one, an original action
forcertiorari and prohibition. The constitutionality of Act No. 2972, popularly known as the Chinese Bookkeeping Law, was
there challenged by the petitioners, and the constitutional issue was not met squarely by the respondent in a demurrer. A
point was raised "relating to the propriety of the constitutional question being decided in original proceedings in
prohibition." This court decided to take up the constitutional question and, with two justices dissenting, held that Act No.
2972 was constitutional. The case was elevated on writ ofcertiorari to the Supreme Court of the United States which
reversed the judgment of this court and held that the Act was invalid. (271 U. S., 500; 70 Law. ed., 1059.) On the question
of jurisdiction, however, the Federal Supreme Court, though its Chief Justice, said:
By the Code of Civil Procedure of the Philippine Islands, section 516, the Philippine supreme court is granted concurrent
jurisdiction in prohibition with courts of first instance over inferior tribunals or persons, and original jurisdiction over courts
of first instance, when such courts are exercising functions without or in excess of their jurisdiction. It has been held by
that court that the question of the validity of the criminal statute must usually be raised by a defendant in the trial court
and be carried regularly in review to the Supreme Court. (Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192).
But in this case where a new act seriously affected numerous persons and extensive property rights, and was likely to
cause a multiplicity of actions, the Supreme Court exercised its discretion to bring the issue to the act's validity promptly

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before it and decide in the interest of the orderly administration of justice. The court relied by analogy upon the cases
of Ex parte Young (209 U. S., 123;52 Law ed., 714; 13 L. R. A. [N. S.] 932; 28 Sup. Ct. Rep., 441; 14 Ann. Ca., 764; Traux
vs. Raich, 239 U. S., 33; 60 Law. ed., 131; L. R. A. 1916D, 545; 36 Sup. Ct. Rep., 7; Ann. Cas., 1917B, 283; and Wilson
vs. New, 243 U. S., 332; 61 Law. ed., 755; L. R. A. 1917E, 938; 37 Sup. Ct. Rep., 298; Ann. Cas. 1918A, 1024). Although
objection to the jurisdiction was raise by demurrer to the petition, this is now disclaimed on behalf of the respondents, and
both parties ask a decision on the merits. In view of the broad powers in prohibition granted to that court under the Island
Code, we acquiesce in the desire of the parties.
The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction and directed to an
inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally
vested. (High, Extraordinary Legal Remedies, p. 705.) The general rule, although there is a conflict in the cases, is that
the merit of prohibition will not lie whether the inferior court has jurisdiction independent of the statute the constitutionality
of which is questioned, because in such cases the interior court having jurisdiction may itself determine the
constitutionality of the statute, and its decision may be subject to review, and consequently the complainant in such cases
ordinarily has adequate remedy by appeal without resort to the writ of prohibition. But where the inferior court or tribunal
derives its jurisdiction exclusively from an unconstitutional statute, it may be prevented by the writ of prohibition from
enforcing that statute. (50 C. J., 670; Ex parte Round tree [1874, 51 Ala., 42; In re Macfarland, 30 App. [D. C.], 365; Curtis
vs. Cornish [1912], 109 Me., 384; 84 A., 799; Pennington vs. Woolfolk [1880], 79 Ky., 13; State vs. Godfrey [1903], 54 W.
Va., 54; 46 S. E., 185; Arnold vs. Shields [1837], 5 Dana, 19; 30 Am. Dec., 669.)
Courts of First Instance sitting in probation proceedings derived their jurisdiction solely from Act No. 4221 which
prescribes in detailed manner the procedure for granting probation to accused persons after their conviction has become
final and before they have served their sentence. It is true that at common law the authority of the courts to suspend
temporarily the execution of the sentence is recognized and, according to a number of state courts, including those of
Massachusetts, Michigan, New York, and Ohio, the power is inherent in the courts But, in the leading case of Ex
parte United States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas.
1917B, 355), the Supreme Court of the United States expressed the opinion that under the common law the power of the
court was limited to temporary suspension, and brushed aside the contention as to inherent judicial power saying, through
Chief Justice White:
Indisputably under our constitutional system the right to try offenses against the criminal laws and upon conviction to
impose the punishment provided by law is judicial, and it is equally to be conceded that, in exerting the powers vested in
them on such subject, courts inherently possess ample right to exercise reasonable, that is, judicial, discretion to enable
them to wisely exert their authority. But these concessions afford no ground for the contention as to power here made,
since it must rest upon the proposition that the power to enforce begets inherently a discretion to permanently refuse to
do so. And the effect of the proposition urged upon the distribution of powers made by the Constitution will become
apparent when it is observed that indisputable also is it that the authority to define and fix the punishment for crime is
legislative and includes the right in advance to bring within judicial discretion, for the purpose of executing the statute,
elements of consideration which would be otherwise beyond the scope of judicial authority, and that the right to relieve
from the punishment, fixed by law and ascertained according to the methods by it provided belongs to the executive
department.
Justice Carson, in his illuminating concurring opinion in the case of Director of Prisons vs. Judge of First Instance of
Cavite (29 Phil., 265), decided by this court in 1915, also reached the conclusion that the power to suspend the execution
of sentences pronounced in criminal cases is not inherent in the judicial function. "All are agreed", he said, "that in the
absence of statutory authority, it does not lie within the power of the courts to grant such suspensions." (at p. 278.) Both
petitioner and respondents are correct, therefore, when they argue that a Court of First Instance sitting in probation
proceedings is a court of limited jurisdiction. Its jurisdiction in such proceedings is conferred exclusively by Act No. 4221
of the Philippine Legislature.
It is, of course, true that the constitutionality of a statute will not be considered on application for prohibition where the
question has not been properly brought to the attention of the court by objection of some kind (Hill vs. Tarver [1901], 130
Ala., 592; 30 S., 499; State ex rel. Kelly vs. Kirby [1914], 260 Mo., 120; 168 S. W., 746). In the case at bar, it is
unquestionable that the constitutional issue has been squarely presented not only before this court by the petitioners but
also before the trial court by the private prosecution. The respondent, Hon. Jose O Vera, however, acting as judge of the
court below, declined to pass upon the question on the ground that the private prosecutor, not being a party whose rights
are affected by the statute, may not raise said question. The respondent judge cited Cooley on Constitutional Limitations
(Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762), and McGlue vs. Essex County ([1916], 225 Mass., 59; 113 N. E., 742,
743), as authority for the proposition that a court will not consider any attack made on the constitutionality of a statute by
one who has no interest in defeating it because his rights are not affected by its operation. The respondent judge further
stated that it may not motu proprio take up the constitutional question and, agreeing with Cooley that "the power to
declare a legislative enactment void is one which the judge, conscious of the fallibility of the human judgment, will shrink
from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the
responsibility" (Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded on the assumption that Act No. 4221 is
constitutional. While therefore, the court a quo admits that the constitutional question was raised before it, it refused to
consider the question solely because it was not raised by a proper party. Respondents herein reiterates this view. The
argument is advanced that the private prosecution has no personality to appear in the hearing of the application for
probation of defendant Mariano Cu Unjieng in criminal case No. 42648 of the Court of First Instance of Manila, and hence
the issue of constitutionality was not properly raised in the lower court. Although, as a general rule, only those who are
parties to a suit may question the constitutionality of a statute involved in a judicial decision, it has been held that since
the decree pronounced by a court without jurisdiction is void, where the jurisdiction of the court depends on the validity of
the statute in question, the issue of the constitutionality will be considered on its being brought to the attention of the court

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by persons interested in the effect to be given the statute.(12 C. J., sec. 184, p. 766.) And, even if we were to concede
that the issue was not properly raised in the court below by the proper party, it does not follow that the issue may not be
here raised in an original action of certiorari and prohibitions. It is true that, as a general rule, the question of
constitutionality must be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be
raised at the trial, and if not raised in the trial court, it will not considered on appeal. (12 C. J., p. 786. See,
also,Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule
admits of exceptions. Courts, in the exercise of sounds discretion, may determine the time when a question affecting the
constitutionality of a statute should be presented. (In re Woolsey [1884], 95 N. Y., 135, 144.) Thus, in criminal cases,
although there is a very sharp conflict of authorities, it is said that the question may be raised for the first time at any stage
of the proceedings, either in the trial court or on appeal. (12 C. J., p. 786.) Even in civil cases, it has been held that it is
the duty of a court to pass on the constitutional question, though raised for the first time on appeal, if it appears that a
determination of the question is necessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co.,
[1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis Cordage Co. [1908], 214 Mo., 685; 113 S. W. 1108; Carmody
vs. St. Louis Transit Co., [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a constitutional question will be
considered by an appellate court at any time, where it involves the jurisdiction of the court below (State vs. Burke [1911],
175 Ala., 561; 57 S., 870.) As to the power of this court to consider the constitutional question raised for the first time
before this court in these proceedings, we turn again and point with emphasis to the case of Yu Cong Eng vs. Trinidad,
supra. And on the hypotheses that the Hongkong & Shanghai Banking Corporation, represented by the private
prosecution, is not the proper party to raise the constitutional question here - a point we do not now have to decide - we
are of the opinion that the People of the Philippines, represented by the Solicitor-General and the Fiscal of the City of
Manila, is such a proper party in the present proceedings. The unchallenged rule is that the person who impugns the
validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will
sustained, direct injury as a result of its enforcement. It goes without saying that if Act No. 4221 really violates the
constitution, the People of the Philippines, in whose name the present action is brought, has a substantial interest in
having it set aside. Of grater import than the damage caused by the illegal expenditure of public funds is the mortal wound
inflicted upon the fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that the state can
challenge the validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed
in Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of
the legislature unconstitutional in an action instituted in behalf of the Government of the Philippines. In Attorney General
vs. Perkins ([1889], 73 Mich., 303, 311, 312; 41 N. W. 426, 428, 429), the State of Michigan, through its Attorney General,
instituted quo warranto proceedings to test the right of the respondents to renew a mining corporation, alleging that the
statute under which the respondents base their right was unconstitutional because it impaired the obligation of contracts.
The capacity of the chief law officer of the state to question the constitutionality of the statute was though, as a general
rule, only those who are parties to a suit may question the constitutionality of a statute involved in a judicial decision, it
has been held that since the decree pronounced by a court without jurisdiction in void, where the jurisdiction of the court
depends on the validity of the statute in question, the issue of constitutionality will be considered on its being brought to
the attention of the court by persons interested in the effect to begin the statute. (12 C.J., sec. 184, p. 766.) And, even if
we were to concede that the issue was not properly raised in the court below by the proper party, it does not follow that
the issue may not be here raised in an original action of certiorari and prohibition. It is true that, as a general rule, the
question of constitutionality must be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it
may not be raised a the trial, and if not raised in the trial court, it will not be considered on appeal. (12 C.J., p. 786. See,
also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule
admits of exceptions. Courts, in the exercise of sound discretion, may determine the time when a question affecting the
constitutionality of a statute should be presented. (In re Woolsey [19884], 95 N.Y., 135, 144.) Thus, in criminal cases,
although there is a very sharp conflict of authorities, it is said that the question may be raised for the first time at any state
of the proceedings, either in the trial court or on appeal. (12 C.J., p. 786.) Even in civil cases, it has been held that it is the
duty of a court to pass on the constitutional question, though raised for first time on appeal, if it appears that a
determination of the question is necessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910],
136 Ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo. 685; 113 S. W., 1108; Carmody vs.
St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a constitutional question will be
considered by an appellate court at any time, where it involves the jurisdiction of the court below (State vs. Burke [1911],
175 Ala., 561; 57 S., 870.) As to the power of this court to consider the constitutional question raised for the first time
before this court in these proceedings, we turn again and point with emphasis to the case of Yu Cong Eng. vs. Trinidad,
supra. And on the hypothesis that the Hongkong & Shanghai Banking Corporation, represented by the private
prosecution, is not the proper party to raise the constitutional question here - a point we do not now have to decide - we
are of the opinion that the People of the Philippines, represented by the Solicitor-General and the Fiscal of the City of
Manila, is such a proper party in the present proceedings. The unchallenged rule is that the person who impugns the
validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement. It goes without saying that if Act No. 4221 really violates the Constitution, the
People of the Philippines, in whose name the present action is brought, has a substantial interest in having it set aside. Of
greater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the
fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that the state can challenge the
validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer
vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of the
legislature unconstitutional in an action instituted in behalf of the Government of the Philippines. In Attorney General vs.
Perkings([1889], 73 Mich., 303, 311, 312; 41 N.W., 426, 428, 429), the State of Michigan, through its Attorney General,
instituted quo warranto proceedings to test the right of the respondents to renew a mining corporation, alleging that the
statute under which the respondents base their right was unconstitutional because it impaired the obligation of contracts.
The capacity of the chief law officer of the state to question the constitutionality of the statute was itself questioned. Said
the Supreme Court of Michigan, through Champlin, J.:
. . . The idea seems to be that the people are estopped from questioning the validity of a law enacted by their
representatives; that to an accusation by the people of Michigan of usurpation their government, a statute enacted by the

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people of Michigan is an adequate answer. The last proposition is true, but, if the statute relied on in justification is
unconstitutional, it is statute only in form, and lacks the force of law, and is of no more saving effect to justify action under
it than if it had never been enacted. The constitution is the supreme law, and to its behests the courts, the legislature, and
the people must bow . . . The legislature and the respondents are not the only parties in interest upon such constitutional
questions. As was remarked by Mr. Justice Story, in speaking of an acquiescence by a party affected by an
unconstitutional act of the legislature: "The people have a deep and vested interest in maintaining all the constitutional
limitations upon the exercise of legislative powers." (Allen vs. Mckeen, 1 Sum., 314.)
In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action (mandamus) was brought by the AttorneyGeneral of Kansas to test the constitutionality of a statute of the state. In disposing of the question whether or not the
state may bring the action, the Supreme Court of Kansas said:
. . . the state is a proper party - indeed, the proper party - to bring this action. The state is always interested where the
integrity of its Constitution or statutes is involved.
"It has an interest in seeing that the will of the Legislature is not disregarded, and need not, as an individual plaintiff must,
show grounds of fearing more specific injury. (State vs. Kansas City 60 Kan., 518 [57 Pac., 118])." (State vs. Lawrence,
80 Kan., 707; 103 Pac., 839.)
Where the constitutionality of a statute is in doubt the state's law officer, its Attorney-General, or county attorney, may
exercise his bet judgment as to what sort of action he will bring to have the matter determined, either by quo warranto to
challenge its validity (State vs. Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662), by mandamus to compel
obedience to its terms (State vs. Dolley, 82 Kan., 533; 108 Pac., 846), or by injunction to restrain proceedings under its
questionable provisions (State ex rel. vs. City of Neodesha, 3 Kan. App., 319; 45 Pac., 122).
Other courts have reached the same conclusion In the case last cited, the Supreme Court of Luisiana said:
It is contended by counsel for Herbert Watkins that a district attorney, being charged with the duty of enforcing the laws,
has no right to plead that a law is unconstitutional. In support of the argument three decisions are cited, viz.: State ex rel.
Hall, District Attorney, vs. Judge of Tenth Judicial District (33 La. Ann., 1222); State ex rel. Nicholls, Governor vs.
Shakespeare, Mayor of New Orleans (41 Ann., 156; 6 So., 592); and State ex rel., Banking Co., etc. vs. Heard, Auditor
(47 La. Ann., 1679; 18 So., 746; 47 L. R. A., 512). These decisions do not forbid a district attorney to plead that a statute
is unconstitutional if he finds if in conflict with one which it is his duty to enforce. In State ex rel. Hall, District Attorney, vs.
Judge, etc., the ruling was the judge should not, merely because he believed a certain statute to be unconstitutional forbid
the district attorney to file a bill of information charging a person with a violation of the statute. In other words, a judge
should not judicially declare a statute unconstitutional until the question of constitutionality is tendered for decision, and
unless it must be decided in order to determine the right of a party litigant. State ex rel. Nicholls, Governor, etc., is
authority for the proposition merely that an officer on whom a statute imposes the duty of enforcing its provisions cannot
avoid the duty upon the ground that he considers the statute unconstitutional, and hence in enforcing the statute he is
immune from responsibility if the statute be unconstitutional. State ex rel. Banking Co., etc., is authority for the proposition
merely that executive officers, e.g., the state auditor and state treasurer, should not decline to perform ministerial duties
imposed upon them by a statute, on the ground that they believe the statute is unconstitutional.
It is the duty of a district attorney to enforce the criminal laws of the state, and, above all, to support the Constitution of the
state. If, in the performance of his duty he finds two statutes in conflict with each other, or one which repeals another, and
if, in his judgment, one of the two statutes is unconstitutional, it is his duty to enforce the other; and, in order to do so, he
is compelled to submit to the court, by way of a plea, that one of the statutes is unconstitutional. If it were not so, the
power of the Legislature would be free from constitutional limitations in the enactment of criminal laws.
The respondents do not seem to doubt seriously the correctness of the general proposition that the state may impugn the
validity of its laws. They have not cited any authority running clearly in the opposite direction. In fact, they appear to have
proceeded on the assumption that the rule as stated is sound but that it has no application in the present case, nor may it
be invoked by the City Fiscal in behalf of the People of the Philippines, one of the petitioners herein, the principal reasons
being that the validity before this court, that the City Fiscal is estopped from attacking the validity of the Act and, not
authorized challenge the validity of the Act in its application outside said city. (Additional memorandum of respondents,
October 23, 1937, pp. 8,. 10, 17 and 23.)
The mere fact that the Probation Act has been repeatedly relied upon the past and all that time has not been attacked as
unconstitutional by the Fiscal of Manila but, on the contrary, has been impliedly regarded by him as constitutional, is no
reason for considering the People of the Philippines estopped from nor assailing its validity. For courts will pass upon a
constitutional questions only when presented before it in bona fide cases for determination, and the fact that the question
has not been raised before is not a valid reason for refusing to allow it to be raised later. The fiscal and all others are
justified in relying upon the statute and treating it as valid until it is held void by the courts in proper cases.
It remains to consider whether the determination of the constitutionality of Act No. 4221 is necessary to the resolution of
the instant case. For, ". . . while the court will meet the question with firmness, where its decision is indispensable, it is the
part of wisdom, and just respect for the legislature, renders it proper, to waive it, if the case in which it arises, can be
decided on other points." (Ex parte Randolph [1833], 20 F. Cas. No. 11, 558; 2 Brock., 447. Vide, also Hoover vs. wood
[1857], 9 Ind., 286, 287.) It has been held that the determination of a constitutional question is necessary whenever it is
essential to the decision of the case (as where the right of a party is founded solely on a statute the validity of which is
attacked. (12 C.J., p. 782, citing Central Glass Co. vs. Niagrara F. Ins. Co., 131 La., 513; 59 S., 972; Cheney vs. Beverly,

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188 Mass., 81; 74 N.E., 306). There is no doubt that the respondent Cu Unjieng draws his privilege to probation solely
from Act No. 4221 now being assailed.
Apart from the foregoing considerations, that court will also take cognizance of the fact that the Probation Act is a new
addition to our statute books and its validity has never before been passed upon by the courts; that may persons accused
and convicted of crime in the City of Manila have applied for probation; that some of them are already on probation; that
more people will likely take advantage of the Probation Act in the future; and that the respondent Mariano Cu Unjieng has
been at large for a period of about four years since his first conviction. All wait the decision of this court on the
constitutional question. Considering, therefore, the importance which the instant case has assumed and to prevent
multiplicity of suits, strong reasons of public policy demand that the constitutionality of Act No. 4221 be now resolved.
In Yu Cong Eng vs. Trinidad, supra, an analogous situation confronted us. We said: "Inasmuch as the property and
personal rights of nearly twelve thousand merchants are affected by these proceedings, and inasmuch as Act No. 2972 is
a new law not yet interpreted by the courts, in the interest of the public welfare and for the advancement of public policy,
we have determined to overrule the defense of want of jurisdiction in order that we may decide the main issue. We have
here an extraordinary situation which calls for a relaxation of the general rule." Our ruling on this point was sustained by
the Supreme Court of the United States. A more binding authority in support of the view we have taken can not be found.
We have reached the conclusion that the question of the constitutionality of Act No. 4221 has been properly raised. Now
for the main inquiry: Is the Act unconstitutional?
Under a doctrine peculiarly American, it is the office and duty of the judiciary to enforce the Constitution. This court, by
clear implication from the provisions of section 2, subsection 1, and section 10, of Article VIII of the Constitution, may
declare an act of the national legislature invalid because in conflict with the fundamental lay. It will not shirk from its sworn
duty to enforce the Constitution. And, in clear cases, it will not hesitate to give effect to the supreme law by setting aside a
statute in conflict therewith. This is of the essence of judicial duty.
This court is not unmindful of the fundamental criteria in cases of this nature that all reasonable doubts should be
resolved in favor of the constitutionality of a statute. An act of the legislature approved by the executive, is presumed to be
within constitutional limitations. The responsibility of upholding the Constitution rests not on the courts alone but on the
legislature as well. "The question of the validity of every statute is first determined by the legislative department of the
government itself." (U.S. vs. Ten Yu [1912], 24 Phil., 1, 10; Case vs. Board of Health and Heiser [1913], 24 Phil., 250, 276;
U.S. vs. Joson [1913], 26 Phil., 1.) And a statute finally comes before the courts sustained by the sanction of the
executive. The members of the Legislature and the Chief Executive have taken an oath to support the Constitution and it
must be presumed that they have been true to this oath and that in enacting and sanctioning a particular law they did not
intend to violate the Constitution. The courts cannot but cautiously exercise its power to overturn the solemn declarations
of two of the three grand departments of the governments. (6 R.C.L., p. 101.) Then, there is that peculiar political
philosophy which bids the judiciary to reflect the wisdom of the people as expressed through an elective Legislature and
an elective Chief Executive. It follows, therefore, that the courts will not set aside a law as violative of the Constitution
except in a clear case. This is a proposition too plain to require a citation of authorities.
One of the counsel for respondents, in the course of his impassioned argument, called attention to the fact that the
President of the Philippines had already expressed his opinion against the constitutionality of the Probation Act, adverting
that as to the Executive the resolution of this question was a foregone conclusion. Counsel, however, reiterated his
confidence in the integrity and independence of this court. We take notice of the fact that the President in his message
dated September 1, 1937, recommended to the National Assembly the immediate repeal of the Probation Act (No. 4221);
that this message resulted in the approval of Bill No. 2417 of the Nationality Assembly repealing the probation Act, subject
to certain conditions therein mentioned; but that said bill was vetoed by the President on September 13, 1937, much
against his wish, "to have stricken out from the statute books of the Commonwealth a law . . . unfair and very likely
unconstitutional." It is sufficient to observe in this connection that, in vetoing the bill referred to, the President exercised
his constitutional prerogative. He may express the reasons which he may deem proper for taking such a step, but his
reasons are not binding upon us in the determination of actual controversies submitted for our determination. Whether or
not the Executive should express or in any manner insinuate his opinion on a matter encompassed within his broad
constitutional power of veto but which happens to be at the same time pending determination in this court is a question of
propriety for him exclusively to decide or determine. Whatever opinion is expressed by him under these circumstances,
however, cannot sway our judgment on way or another and prevent us from taking what in our opinion is the proper
course of action to take in a given case. It if is ever necessary for us to make any vehement affirmance during this
formative period of our political history, it is that we are independent of the Executive no less than of the Legislative
department of our government - independent in the performance of our functions, undeterred by any consideration, free
from politics, indifferent to popularity, and unafraid of criticism in the accomplishment of our sworn duty as we see it and
as we understand it.
The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That said Act encroaches upon the
pardoning power of the Executive; (2) that its constitutes an undue delegation of legislative power and (3) that it denies
the equal protection of the laws.
1. Section 21 of the Act of Congress of August 29, 1916, commonly known as the Jones Law, in force at the time of the
approval of Act No. 4221, otherwise known as the Probation Act, vests in the Governor-General of the Philippines "the
exclusive power to grant pardons and reprieves and remit fines and forfeitures". This power is now vested in the President
of the Philippines. (Art. VII, sec. 11, subsec. 6.) The provisions of the Jones Law and the Constitution differ in some
respects. The adjective "exclusive" found in the Jones Law has been omitted from the Constitution. Under the Jones Law,
as at common law, pardon could be granted any time after the commission of the offense, either before or after conviction
(Vide Constitution of the United States, Art. II, sec. 2; In re Lontok [1922], 43 Phil., 293). The Governor-General of the

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Philippines was thus empowered, like the President of the United States, to pardon a person before the facts of the case
were fully brought to light. The framers of our Constitution thought this undesirable and, following most of the state
constitutions, provided that the pardoning power can only be exercised "after conviction". So, too, under the new
Constitution, the pardoning power does not extend to "cases of impeachment". This is also the rule generally followed in
the United States (VideConstitution of the United States, Art. II, sec. 2). The rule in England is different. There, a royal
pardon can not be pleaded in bar of an impeachment; "but," says Blackstone, "after the impeachment has been solemnly
heard and determined, it is not understood that the king's royal grace is further restrained or abridged." The reason for the
distinction is obvious. In England, Judgment on impeachment is not confined to mere "removal from office and
disqualification to hold and enjoy any office of honor, trust, or profit under the Government" (Art. IX, sec. 4, Constitution of
the Philippines) but extends to the whole punishment attached by law to the offense committed. The House of Lords, on a
conviction may, by its sentence, inflict capital punishment, perpetual banishment, perpetual banishment, fine or
imprisonment, depending upon the gravity of the offense committed, together with removal from office and incapacity to
hold office. (Com. vs. Lockwood, supra.) Our Constitution also makes specific mention of "commutation" and of the power
of the executive to impose, in the pardons he may grant, such conditions, restrictions and limitations as he may deem
proper. Amnesty may be granted by the President under the Constitution but only with the concurrence of the National
Assembly. We need not dwell at length on the significance of these fundamental changes. It is sufficient for our purposes
to state that the pardoning power has remained essentially the same. The question is: Has the pardoning power of the
Chief Executive under the Jones Law been impaired by the Probation Act?
As already stated, the Jones Law vests the pardoning power exclusively in the Chief Executive. The exercise of the power
may not, therefore, be vested in anyone else.
". . . The benign prerogative of mercy reposed in the executive cannot be taken away nor fettered by any legislative
restrictions, nor can like power be given by the legislature to any other officer or authority. The coordinate departments of
government have nothing to do with the pardoning power, since no person properly belonging to one of the departments
can exercise any powers appertaining to either of the others except in cases expressly provided for by the constitution."
(20 R.C.L., pp., , and cases cited.) " . . . where the pardoning power is conferred on the executive without express or
implied limitations, the grant is exclusive, and the legislature can neither exercise such power itself nor delegate it
elsewhere, nor interfere with or control the proper exercise thereof, . . ." If Act No. 4221, then, confers any pardoning
power upon the courts it is for that reason unconstitutional and void. But does it?
In the famous Killitts decision involving an embezzlement case, the Supreme Court of the United States ruled in 1916 that
an order indefinitely suspending sentenced was void. Chief Justice White, after an exhaustive review of the authorities,
expressed the opinion of the court that under the common law the power of the court was limited to temporary suspension
and that the right to suspend sentenced absolutely and permanently was vested in the executive branch of the
government and not in the judiciary. But, the right of Congress to establish probation by statute was conceded. Said the
court through its Chief Justice: ". . . and so far as the future is concerned, that is, the causing of the imposition of penalties
as fixed to be subject, by probation legislation or such other means as the legislative mind may devise, to such judicial
discretion as may be adequate to enable courts to meet by the exercise of an enlarged but wise discretion the infinite
variations which may be presented to them for judgment, recourse must be had Congress whose legislative power on the
subject is in the very nature of things adequately complete." (Quoted in Riggs vs. United States [1926], 14 F. [2d], 5, 6.)
This decision led the National Probation Association and others to agitate for the enactment by Congress of a federal
probation law. Such action was finally taken on March 4, 1925 (chap. 521, 43 Stat. L. 159, U.S.C. title 18, sec. 724). This
was followed by an appropriation to defray the salaries and expenses of a certain number of probation officers chosen by
civil service. (Johnson, Probation for Juveniles and Adults, p. 14.)
In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72 Law. ed., 309), the Supreme Court of the
United States, through Chief Justice Taft, held that when a person sentenced to imprisonment by a district court has
begun to serve his sentence, that court has no power under the Probation Act of March 4, 1925 to grant him probation
even though the term at which sentence was imposed had not yet expired. In this case of Murray, the constitutionality of
the probation Act was not considered but was assumed. The court traced the history of the Act and quoted from the report
of the Committee on the Judiciary of the United States House of Representatives (Report No. 1377, 68th Congress, 2
Session) the following statement:
Prior to the so-called Killitts case, rendered in December, 1916, the district courts exercised a form of probation either, by
suspending sentence or by placing the defendants under state probation officers or volunteers. In this case, however (Ex
parte United States, 242 U.S., 27; 61 L. Ed., 129; L.R.A., 1917E, 1178; 37 Sup. Ct. Rep., 72 Ann. Cas. 1917B, 355), the
Supreme Court denied the right of the district courts to suspend sentenced. In the same opinion the court pointed out the
necessity for action by Congress if the courts were to exercise probation powers in the future . . .
Since this decision was rendered, two attempts have been made to enact probation legislation. In 1917, a bill was
favorably reported by the Judiciary Committee and passed the House. In 1920, the judiciary Committee again favorably
reported a probation bill to the House, but it was never reached for definite action.
If this bill is enacted into law, it will bring the policy of the Federal government with reference to its treatment of those
convicted of violations of its criminal laws in harmony with that of the states of the Union. At the present time every state
has a probation law, and in all but twelve states the law applies both to adult and juvenile offenders. (see, also, Johnson,
Probation for Juveniles and Adults [1928], Chap. I.)
The constitutionality of the federal probation law has been sustained by inferior federal courts. In Riggs vs. United
States supra, the Circuit Court of Appeals of the Fourth Circuit said:
Since the passage of the Probation Act of March 4, 1925, the questions under consideration have been reviewed by the

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Circuit Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and the constitutionality of the act fully sustained, and the
same held in no manner to encroach upon the pardoning power of the President. This case will be found to contain an
able and comprehensive review of the law applicable here. It arose under the act we have to consider, and to it and the
authorities cited therein special reference is made (Nix vs. James, 7 F. [2d], 590, 594), as is also to a decision of the
Circuit Court of Appeals of the Seventh Circuit (Kriebel vs. U.S., 10 F. [2d], 762), likewise construing the Probation Act.
We have seen that in 1916 the Supreme Court of the United States; in plain and unequivocal language, pointed to
Congress as possessing the requisite power to enact probation laws, that a federal probation law as actually enacted in
1925, and that the constitutionality of the Act has been assumed by the Supreme Court of the United States in 1928 and
consistently sustained by the inferior federal courts in a number of earlier cases.
We are fully convinced that the Philippine Legislature, like the Congress of the United States, may legally enact a
probation law under its broad power to fix the punishment of any and all penal offenses. This conclusion is supported by
other authorities. In Ex parte Bates ([1915], 20 N. M., 542; L.R.A. 1916A, 1285; 151 Pac., 698, the court said: "It is clearly
within the province of the Legislature to denominate and define all classes of crime, and to prescribe for each a minimum
and maximum punishment." And in State vs. Abbott ([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann. Cas.
1912B, 1189), the court said: "The legislative power to set punishment for crime is very broad, and in the exercise of this
power the general assembly may confer on trial judges, if it sees fit, the largest discretion as to the sentence to be
imposed, as to the beginning and end of the punishment and whether it should be certain or indeterminate or conditional."
(Quoted in State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69.) Indeed, the Philippine Legislature has defined all crimes
and fixed the penalties for their violation.
Invariably, the legislature has demonstrated the desire to vest in the courts - particularly the trial courts - large discretion
in imposing the penalties which the law prescribes in particular cases. It is believed that justice can best be served by
vesting this power in the courts, they being in a position to best determine the penalties which an individual convict,
peculiarly circumstanced, should suffer. Thus, while courts are not allowed to refrain from imposing a sentence merely
because, taking into consideration the degree of malice and the injury caused by the offense, the penalty provided by law
is clearly excessive, the courts being allowed in such case to submit to the Chief Executive, through the Department of
Justice, such statement as it may deem proper (see art. 5, Revised Penal Code), in cases where both mitigating and
aggravating circumstances are attendant in the commission of a crime and the law provides for a penalty composed of
two indivisible penalties, the courts may allow such circumstances to offset one another in consideration of their number
and importance, and to apply the penalty according to the result of such compensation. (Art. 63, rule 4, Revised Penal
Code; U.S. vs. Reguera and Asuategui [1921], 41 Phil., 506.)
Again, article 64, paragraph 7, of the Revised Penal Code empowers the courts to determine, within the limits of each
periods, in case the penalty prescribed by law contains three periods, the extent of the evil produced by the crime. In the
imposition of fines, the courts are allowed to fix any amount within the limits established by law, considering not only the
mitigating and aggravating circumstances, but more particularly the wealth or means of the culprit. (Art. 66, Revised Penal
Code.) Article 68, paragraph 1, of the same Code provides that "a discretionary penalty shall be imposed" upon a person
under fifteen but over nine years of age, who has not acted without discernment, but always lower by two degrees at least
than that prescribed by law for the crime which he has committed. Article 69 of the same Code provides that in case of
"incomplete self-defense", i.e., when the crime committed is not wholly excusable by reason of the lack of some of the
conditions required to justify the same or to exempt from criminal liability in the several cases mentioned in article 11 and
12 of the Code, "the courts shall impose the penalty in the period which may be deemed proper, in view of the number
and nature of the conditions of exemption present or lacking." And, in case the commission of what are known as
"impossible" crimes, "the court, having in mind the social danger and the degree of criminality shown by the offender,"
shall impose upon him either arresto mayor or a fine ranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.)
Under our Revised Penal Code, also, one-half of the period of preventive imprisonment is deducted form the entire term
of imprisonment, except in certain cases expressly mentioned (art. 29); the death penalty is not imposed when the guilty
person is more than seventy years of age, or where upon appeal or revision of the case by the Supreme Court, all the
members thereof are not unanimous in their voting as to the propriety of the imposition of the death penalty (art. 47, see
also, sec. 133, Revised Administrative Code, as amended by Commonwealth Act No. 3); the death sentence is not to be
inflicted upon a woman within the three years next following the date of the sentence or while she is pregnant, or upon
any person over seventy years of age (art. 83); and when a convict shall become insane or an imbecile after final
sentence has been pronounced, or while he is serving his sentenced, the execution of said sentence shall be suspended
with regard to the personal penalty during the period of such insanity or imbecility (art. 79).
But the desire of the legislature to relax what might result in the undue harshness of the penal laws is more clearly
demonstrated in various other enactments, including the probation Act. There is the Indeterminate Sentence Law enacted
in 1933 as Act No. 4103 and subsequently amended by Act No. 4225, establishing a system of parole (secs. 5 to 100 and
granting the courts large discretion in imposing the penalties of the law. Section 1 of the law as amended provides;
"hereafter, in imposing a prison sentence for an offenses punished by the Revised Penal Code, or its amendments, the
court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of
the attending circumstances, could be properly imposed under the rules of the said Code, and to a minimum which shall
be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished
by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall
not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the
same." Certain classes of convicts are, by section 2 of the law, excluded from the operation thereof. The Legislature has
also enacted the Juvenile Delinquency Law (Act No. 3203) which was subsequently amended by Act No. 3559. Section 7
of the original Act and section 1 of the amendatory Act have become article 80 of the Revised Penal Code, amended by
Act No. 4117 of the Philippine Legislature and recently reamended by Commonwealth Act No. 99 of the National

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Assembly. In this Act is again manifested the intention of the legislature to "humanize" the penal laws. It allows, in effect,
the modification in particular cases of the penalties prescribed by law by permitting the suspension of the execution of the
judgment in the discretion of the trial court, after due hearing and after investigation of the particular circumstances of the
offenses, the criminal record, if any, of the convict, and his social history. The Legislature has in reality decreed that in
certain cases no punishment at all shall be suffered by the convict as long as the conditions of probation are faithfully
observed. It this be so, then, it cannot be said that the Probation Act comes in conflict with the power of the Chief
Executive to grant pardons and reprieves, because, to use the language of the Supreme Court of New Mexico, "the
element of punishment or the penalty for the commission of a wrong, while to be declared by the courts as a judicial
function under and within the limits of law as announced by legislative acts, concerns solely the procedure and conduct of
criminal causes, with which the executive can have nothing to do." (Ex parteBates, supra.) In Williams vs. State ([1926],
162 Ga., 327; 133 S.E., 843), the court upheld the constitutionality of the Georgia probation statute against the contention
that it attempted to delegate to the courts the pardoning power lodged by the constitution in the governor alone is vested
with the power to pardon after final sentence has been imposed by the courts, the power of the courts to imposed any
penalty which may be from time to time prescribed by law and in such manner as may be defined cannot be questioned."
We realize, of course, the conflict which the American cases disclose. Some cases hold it unlawful for the legislature to
vest in the courts the power to suspend the operation of a sentenced, by probation or otherwise, as to do so would
encroach upon the pardoning power of the executive.
Other cases, however, hold contra State ex rel. Tingstand vs. Starwich [1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R.,
393; 396.) We elect to follow this long catena of authorities holding that the courts may be legally authorized by the
legislature to suspend sentence by the establishment of a system of probation however characterized. State ex rel.
Tingstand vs. Starwich ([1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved particular mention. In that case,
a statute enacted in 1921 which provided for the suspension of the execution of a sentence until otherwise ordered by the
court, and required that the convicted person be placed under the charge of a parole or peace officer during the term of
such suspension, on such terms as the court may determine, was held constitutional and as not giving the court a power
in violation of the constitutional provision vesting the pardoning power in the chief executive of the state. (Probation and
pardon are not coterminous; nor are they the same. They are actually district and different from each other, both in origin
and in nature. In People ex rel. Forsyth vs. Court of Sessions the Court of Appeals of New York said:
. . . The power to suspend sentence and the power to grant reprieves and pardons, as understood when the constitution
was adopted, are totally distinct and different in their nature. The former was always a part of the judicial power; the latter
was always a part of the executive power. The suspension of the sentence simply postpones the judgment of the court
temporarily or indefinitely, but the conviction and liability following it, and the civil disabilities, remain and become
operative when judgment is rendered. A pardon reaches both the punishment prescribed for the offense and the guilt of
the offender. It releases the punishment, and blots out of existence the guilt, so that in the eye of the law, the offender is
as innocent as if he had never committed the offense. It removes the penalties and disabilities, and restores him to all his
civil rights. It makes him, as it were, a new man, and gives him a new credit and capacity
The framers of the federal and the state constitutions were perfectly familiar with the principles governing the power to
grant pardons, and it was conferred by these instruments upon the executive with full knowledge of the law upon the
subject, and the words of the constitution were used to express the authority formerly exercised by the English crown, or
by its representatives in the colonies. (Ex parte Wells, 59 U. S., 18 How., 307; 15 Law. ed., 421.) As this power was
understood, it did not comprehend any part of the judicial functions to suspend sentence, and it was never intended that
the authority to grant reprieves and pardons should abrogate, or in any degree restrict, the exercise of that power in
regard to its own judgments, that criminal courts has so long maintained. The two powers, so distinct and different in their
nature and character, were still left separate and distinct, the one to be exercised by the executive, and the other by the
judicial department. We therefore conclude that a statute which, in terms, authorizes courts of criminal jurisdiction to
suspend sentence in certain cases after conviction, - a power inherent in such courts at common law, which was
understood when the constitution was adopted to be an ordinary judicial function, and which, ever since its adoption, has
been exercised of legislative power under the constitution. It does not encroach, in any just sense, upon the powers of the
executive, as they have been understood and practiced from the earliest times. (Quoted with approval in Directors of
Prisons vs. Judge of First Instance of Cavite
In probation, the probationer is in no true sense, as in pardon, a free man. He is not finally and completely exonerated. He
is not exempt from the entire punishment which the law inflicts. Under the Probation Act, the probationer's case is not
terminated by the mere fact that he is placed on probation. Section 4 of the Act provides that the probation may be
definitely terminated and the probationer finally discharged from supervision only after the period of probation shall have
been terminated and the probation officer shall have submitted a report, and the court shall have found that the
probationer has complied with the conditions of probation. The probationer, then, during the period of probation, remains
in legal custody - subject to the control of the probation officer and of the court; and, he may be rearrested upon the nonfulfillment of the conditions of probation and, when rearrested, may be committed to prison to serve the sentence
originally imposed upon him. (Secs. 2, 3, 5 and 6, Act No. 4221.)
The probation described in the act is not pardon. It is not complete liberty, and may be far from it. It is really a new mode
of punishment, to be applied by the judge in a proper case, in substitution of the imprisonment and find prescribed by the
criminal laws. For this reason its application is as purely a judicial act as any other sentence carrying out the law deemed
applicable to the offense. The executive act of pardon, on the contrary, is against the criminal law, which binds and directs
the judges, or rather is outside of and above it. There is thus no conflict with the pardoning power, and no possible
unconstitutionality of the Probation Act for this cause. (Archer vs. Snook [1926], 10 F. [2d], 567, 569.)
Probation should also be distinguished from reprieve and from commutation of the sentence. Snodgrass vs. State, is

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relied upon most strongly by the petitioners as authority in support of their contention that the power to grant pardons and
reprieves, having been vested exclusively upon the Chief Executive by the Jones Law, may not be conferred by the
legislature upon the courts by means of probation law authorizing the indefinite judicial suspension of sentence. We have
examined that case and found that although the Court of Criminal Appeals of Texas held that the probation statute of the
state in terms conferred on the district courts the power to grant pardons to persons convicted of crime, it also
distinguished between suspensions sentence on the one hand, and reprieve and commutation of sentence on the other.
Said the court, through Harper, J.:
That the power to suspend the sentence does not conflict with the power of the Governor to grant reprieves is settled by
the decisions of the various courts; it being held that the distinction between a "reprieve" and a suspension of sentence is
that a reprieve postpones the execution of the sentence to a day certain, whereas a suspension is for an indefinite time.
and cases cited in 7 Words & Phrases, pp. 6115, 6116. This law cannot be hold in conflict with the power confiding in the
Governor to grant commutations of punishment, for a commutations is not but to change the punishment assessed to a
less punishment.
In State ex rel. Bottomnly vs. District Court the Supreme Court of Montana had under consideration the validity of the
adult probation law of the state enacted in 1913, now found in sections 12078-12086, Revised Codes of 1921. The court
held the law valid as not impinging upon the pardoning power of the executive. In a unanimous decision penned by
Justice Holloway, the court said:
. . . . the term "pardon", "commutation", and "respite" each had a well understood meaning at the time our Constitution
was adopted, and no one of them was intended to comprehend the suspension of the execution of the judgment as that
phrase is employed in sections 12078-12086. A "pardon" is an act of grace, proceeding from the power intrusted with the
execution of the laws which exempts the individual on whom it is bestowed from the punishment the law inflicts for a
crime he has committed (United States vs. Wilson, 7 Pet., 150; 8 Law. ed., 640); It is a remission of guilt (State vs. Lewis,
111 La., 693; 35 So., 816), a forgiveness of the offense (Cook vs. Middlesex County, 26 N. J. Law, 326; Ex parte Powell,
73 Ala., 517; 49 Am. Rep., 71). "Commutation" is a remission of a part of the punishment; a substitution of a less penalty
for the one originally imposed (. A "reprieve" or "respite" is the withholding of the sentence for an interval of time), a
postponement of execution a temporary suspension of execution (Butler vs. State, 97 Ind., 373).
Few adjudicated cases are to be found in which the validity of a statute similar to our section 12078 has been determined;
but the same objections have been urged against parole statutes which vest the power to parole in persons other than
those to whom the power of pardon is granted, and these statutes have been upheld quite uniformly, as a reference to the
numerous cases cited in the notes to Woods vs. State (130 Tenn., 100; 169 S. W.,558, reported in L. R. A., 1915F, 531),
will disclose. (See, also, 20 R. C. L., 524.)
We conclude that the Probation Act does not conflict with the pardoning power of the Executive. The pardoning power, in
respect to those serving their probationary sentences, remains as full and complete as if the Probation Law had never
been enacted. The President may yet pardon the probationer and thus place it beyond the power of the court to order his
rearrest and imprisonment. (Riggs vs. United States [1926],
14 F. [2d], 5, 7.)
2. But while the Probation Law does not encroach upon the pardoning power of the executive and is not for that reason
void, does section 11 thereof constitute, as contended, an undue delegation of legislative power?
Under the constitutional system, the powers of government are distributed among three coordinate and substantially
independent organs: the legislative, the executive and the judicial. Each of these departments of the government derives
its authority from the Constitution which, in turn, is the highest expression of popular will. Each has exclusive cognizance
of the matters within its jurisdiction, and is supreme within its own sphere.
The power to make laws - the legislative power - is vested in a bicameral Legislature by the Jones Law (sec. 12) and in a
unicamiral National Assembly by the Constitution (Act. VI, sec. 1, Constitution of the Philippines). The Philippine
Legislature or the National Assembly may not escape its duties and responsibilities by delegating that power to any other
body or authority. Any attempt to abdicate the power is unconstitutional and void, on the principle that potestas delegata
non delegare potest. This principle is said to have originated with the glossators, was introduced into English law through
a misreading of Bracton, there developed as a principle of agency, was established by Lord Coke in the English public law
in decisions forbidding the delegation of judicial power, and found its way into America as an enlightened principle of free
government. It has since become an accepted corollary of the principle of separation of powers. (5 Encyc. of the Social
Sciences, p. 66.) The classic statement of the rule is that of Locke, namely: "The legislative neither must nor can transfer
the power of making laws to anybody else, or place it anywhere but where the people have." (Locke on Civil Government,
sec. 142.) Judge Cooley enunciates the doctrine in the following oft-quoted language: "One of the settled maxims in
constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department
to any other body or authority. Where the sovereign power of the state has located the authority, there it must remain; and
by the constitutional agency alone the laws must be made until the Constitution itself is charged. The power to whose
judgment, wisdom, and patriotism this high prerogative has been intrusted cannot relieve itself of the responsibilities by
choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and
patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust." (Cooley on
Constitutional Limitations, 8th ed., Vol. I, p. 224. Quoted with approval in U. S. vs. Barrias [1908], 11 Phil., 327.) This court
posits the doctrine "on the ethical principle that such a delegated power constitutes not only a right but a duty to be
performed by the delegate by the instrumentality of his own judgment acting immediately upon the matter of legislation

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and not through the intervening mind of another. (U. S. vs. Barrias, supra, at p. 330.)
The rule, however, which forbids the delegation of legislative power is not absolute and inflexible. It admits of exceptions.
An exceptions sanctioned by immemorial practice permits the central legislative body to delegate legislative powers to
local authorities. (Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660; U. S. vs. Salaveria [1918], 39 Phil., 102;
Stoutenburgh vs. Hennick [1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256; State vs. Noyes [1855], 30 N.
H., 279.) "It is a cardinal principle of our system of government, that local affairs shall be managed by local authorities,
and general affairs by the central authorities; and hence while the rule is also fundamental that the power to make laws
cannot be delegated, the creation of the municipalities exercising local self government has never been held to trench
upon that rule. Such legislation is not regarded as a transfer of general legislative power, but rather as the grant of the
authority to prescribed local regulations, according to immemorial practice, subject of course to the interposition of the
superior in cases of necessity." (Stoutenburgh vs. Hennick, supra.) On quite the same principle, Congress is powered to
delegate legislative power to such agencies in the territories of the United States as it may select. A territory stands in the
same relation to Congress as a municipality or city to the state government. Courts have also sustained the delegation of
legislative power to the people at large. Some authorities maintain that this may not be done. However, the question of
whether or not a state has ceased to be republican in form because of its adoption of the initiative and referendum has
been held not to be a judicial but a political), and as the constitutionality of such laws has been looked upon with favor by
certain progressive courts, the sting of the decisions of the more conservative courts has been pretty well drawn.)
Doubtless, also, legislative power may be delegated by the Constitution itself. Section 14, paragraph 2, of article VI of the
Constitution of the Philippines provides that "The National Assembly may by law authorize the President, subject to such
limitations and restrictions as it may impose, to fix within specified limits, tariff rates, import or export quotas, and tonnage
and wharfage dues." And section 16 of the same article of the Constitution provides that "In times of war or other national
emergency, the National Assembly may by law authorize the President, for a limited period and subject to such
restrictions as it may prescribed, to promulgate rules and regulations to carry out a declared national policy." It is beyond
the scope of this decision to determine whether or not, in the absence of the foregoing constitutional provisions, the
President could be authorized to exercise the powers thereby vested in him. Upon the other hand, whatever doubt may
have existed has been removed by the Constitution itself.
The case before us does not fall under any of the exceptions hereinabove mentioned.
The challenged section of Act No. 4221 in section 11 which reads as follows:
This Act shall apply only in those provinces in which the respective provincial boards have provided for the salary of a
probation officer at rates not lower than those now provided for provincial fiscals. Said probation officer shall be appointed
by the Secretary of Justice and shall be subject to the direction of the Probation Office. (Emphasis ours.)
In testing whether a statute constitute an undue delegation of legislative power or not, it is usual to inquire whether the
statute was complete in all its terms and provisions when it left the hands of the legislature so that nothing was left to the
judgment of any other appointee or delegate of the legislature. (6 R. C. L., p. 165.) In the United States vs. Ang Tang Ho
([1922], 43 Phil., 1), this court adhered to the foregoing rule when it held an act of the legislature void in so far as it
undertook to authorize the Governor-General, in his discretion, to issue a proclamation fixing the price of rice and to make
the sale of it in violation of the proclamation a crime. (See and cf. Compaia General de Tabacos vs. Board of Public
Utility Commissioners [1916], 34 Phil., 136.) The general rule, however, is limited by another rule that to a certain extent
matters of detail may be left to be filled in by rules and regulations to be adopted or promulgated by executive officers and
administrative boards. (6 R. C. L., pp. 177-179.)
For the purpose of Probation Act, the provincial boards may be regarded as administrative bodies endowed with power to
determine when the Act should take effect in their respective provinces. They are the agents or delegates of the
legislature in this respect. The rules governing delegation of legislative power to administrative and executive officers are
applicable or are at least indicative of the rule which should be here adopted. An examination of a variety of cases on
delegation of power to administrative bodies will show that theratio decidendi is at variance but, it can be broadly asserted
that the rationale revolves around the presence or absence of a standard or rule of action - or the sufficiency thereof - in
the statute, to aid the delegate in exercising the granted discretion. In some cases, it is held that the standard is sufficient;
in others that is insufficient; and in still others that it is entirely lacking. As a rule, an act of the legislature is incomplete and
hence invalid if it does not lay down any rule or definite standard by which the administrative officer or board may be
guided in the exercise of the discretionary powers delegated to it ) In the case at bar, what rules are to guide the
provincial boards in the exercise of their discretionary power to determine whether or not the Probation Act shall apply in
their respective provinces? What standards are fixed by the Act? We do not find any and none has been pointed to us by
the respondents. The probation Act does not, by the force of any of its provisions, fix and impose upon the provincial
boards any standard or guide in the exercise of their discretionary power. What is granted, if we may use the language of
Justice Cardozo in the recent case of Schecter, supra, is a "roving commission" which enables the provincial boards to
exercise arbitrary discretion. By section 11 if the Act, the legislature does not seemingly on its own authority extend the
benefits of the Probation Act to the provinces but in reality leaves the entire matter for the various provincial boards to
determine. In other words, the provincial boards of the various provinces are to determine for themselves, whether the
Probation Law shall apply to their provinces or not at all. The applicability and application of the Probation Act are entirely
placed in the hands of the provincial boards. If the provincial board does not wish to have the Act applied in its province,
all that it has to do is to decline to appropriate the needed amount for the salary of a probation officer. The plain language
of the Act is not susceptible of any other interpretation. This, to our minds, is a virtual surrender of legislative power to the
provincial boards.
"The true distinction", says Judge Ranney, "is between the delegation of power to make the law, which necessarily
involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised

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under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made." (Cincinnati, W.
& Z. R. Co. vs. Clinton County Comrs. [1852]; 1 Ohio St., 77, 88. See also, Sutherland on Statutory Construction, sec 68.)
To the same effect are the decision of this court in Municipality of Cardona vs. Municipality of Binangonan ([1917], 36
Phil., 547); Rubi vs. Provincial Board of Mindoro ([1919],39 Phil., 660) and Cruz vs. Youngberg ([1931], 56 Phil., 234). In
the first of these cases, this court sustained the validity of the law conferring upon the Governor-General authority to
adjust provincial and municipal boundaries. In the second case, this court held it lawful for the legislature to direct nonChristian inhabitants to take up their habitation on unoccupied lands to be selected by the provincial governor and
approved by the provincial board. In the third case, it was held proper for the legislature to vest in the Governor-General
authority to suspend or not, at his discretion, the prohibition of the importation of the foreign cattle, such prohibition to be
raised "if the conditions of the country make this advisable or if deceased among foreign cattle has ceased to be a
menace to the agriculture and livestock of the lands."
It should be observed that in the case at bar we are not concerned with the simple transference of details of execution or
the promulgation by executive or administrative officials of rules and regulations to carry into effect the provisions of a law.
If we were, recurrence to our own decisions would be sufficient. (U. S. vs. Barrias [1908], 11 Phil., 327; U.S. vs. Molina
[1914], 29 Phil., 119; Alegre vs. Collector of Customs [1929], 53 Phil., 394; Cebu Autobus Co. vs. De Jesus [1931], 56
Phil., 446; U. S. vs. Gomez [1915], 31 Phil., 218; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.)
It is connected, however, that a legislative act may be made to the effect as law after it leaves the hands of the legislature.
It is true that laws may be made effective on certain contingencies, as by proclamation of the executive or the adoption by
the people of a particular community, the Supreme Court of the United State ruled that the legislature may delegate a
power not legislative which it may itself rightfully exercise.() The power to ascertain facts is such a power which may be
delegated. There is nothing essentially legislative in ascertaining the existence of facts or conditions as the basis of the
taking into effect of a law. That is a mental process common to all branches of the government. Notwithstanding the
apparent tendency, however, to relax the rule prohibiting delegation of legislative authority on account of the complexity
arising from social and economic forces at work in this modern industrial age Beard, "Squirt-Gun Politics", in Harper's
Monthly Magazine, July, 1930, Vol. CLXI, pp. 147, 152), the orthodox pronouncement of Judge Cooley in his work on
Constitutional Limitations finds restatement in Prof. Willoughby's treatise on the Constitution of the United States in the
following language - speaking of declaration of legislative power to administrative agencies: "The principle which permits
the legislature to provide that the administrative agent may determine when the circumstances are such as require the
application of a law is defended upon the ground that at the time this authority is granted, the rule of public policy, which is
the essence of the legislative act, is determined by the legislature. In other words, the legislature, as it its duty to do,
determines that, under given circumstances, certain executive or administrative action is to be taken, and that, under
other circumstances, different of no action at all is to be taken. What is thus left to the administrative official is not the
legislative determination of what public policy demands, but simply the ascertainment of what the facts of the case require
to be done according to the terms of the law by which he is governed it was said: "The efficiency of an Act as a
declaration of legislative will must, of course, come from Congress, but the ascertainment of the contingency upon which
the Act shall take effect may be left to such agencies as it may designate." (See, also, 12 C.J., p. 864; State vs. Parker
[1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343, 258.) The legislature, then may provide that a contingencies
leaving to some other person or body the power to determine when the specified contingencies has arisen. But, in the
case at bar, the legislature has not made the operation of the Prohibition Act contingent upon specified facts or conditions
to be ascertained by the provincial board. It leaves, as we have already said, the entire operation or non-operation of the
law upon the provincial board. the discretion vested is arbitrary because it is absolute and unlimited. A provincial board
need not investigate conditions or find any fact, or await the happening of any specified contingency. It is bound by no
rule, - limited by no principle of expendiency announced by the legislature. It may take into consideration certain facts or
conditions; and, again, it may not. It may have any purpose or no purpose at all. It need not give any reason whatsoever
for refusing or failing to appropriate any funds for the salary of a probation officer. This is a matter which rest entirely at its
pleasure. The fact that at some future time - we cannot say when - the provincial boards may appropriate funds for the
salaries of probation officers and thus put the law into operation in the various provinces will not save the statute. The
time of its taking into effect, we reiterate, would yet be based solely upon the will of the provincial boards and not upon the
happening of a certain specified contingency, or upon the ascertainment of certain facts or conditions by a person or body
other than legislature itself.
The various provincial boards are, in practical effect, endowed with the power of suspending the operation of the
Probation Law in their respective provinces. In some jurisdiction, constitutions provided that laws may be suspended only
by the legislature or by its authority. Thus, section 28, article I of the Constitution of Texas provides that "No power of
suspending laws in this state shall be exercised except by the legislature"; and section 26, article I of the Constitution of
Indiana provides "That the operation of the laws shall never be suspended, except by authority of the General Assembly."
Yet, even provisions of this sort do not confer absolute power of suspension upon the legislature. While it may be
undoubted that the legislature may suspend a law, or the execution or operation of a law, a law may not be suspended as
to certain individuals only, leaving the law to be enjoyed by others. The suspension must be general, and cannot be made
for individual cases or for particular localities. In Holden vs. James ([1814], 11 Mass., 396; 6 Am. Dec., 174, 177, 178), it
was said:
By the twentieth article of the declaration of rights in the constitution of this commonwealth, it is declared that the power of
suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority
derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for. Many of the
articles in that declaration of rights were adopted from the Magna Charta of England, and from the bill of rights passed in
the reign of William and Mary. The bill of rights contains an enumeration of the oppressive acts of James II, tending to
subvert and extirpate the protestant religion, and the laws and liberties of the kingdom; and the first of them is the
assuming and exercising a power of dispensing with and suspending the laws, and the execution of the laws without
consent of parliament. The first article in the claim or declaration of rights contained in the statute is, that the exercise of

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such power, by legal authority without consent of parliament, is illegal. In the tenth section of the same statute it is further
declared and enacted, that "No dispensation by non obstante of or to any statute, or part thereof, should be allowed; but
the same should be held void and of no effect, except a dispensation be allowed of in such statute." There is an implied
reservation of authority in the parliament to exercise the power here mentioned; because, according to the theory of the
English Constitution, "that absolute despotic power, which must in all governments reside somewhere," is intrusted to the
parliament: 1 Bl. Com., 160.
The principles of our government are widely different in this particular. Here the sovereign and absolute power resides in
the people; and the legislature can only exercise what is delegated to them according to the constitution. It is obvious that
the exercise of the power in question would be equally oppressive to the subject, and subversive of his right to protection,
"according to standing laws," whether exercised by one man or by a number of men. It cannot be supposed that the
people when adopting this general principle from the English bill of rights and inserting it in our constitution, intended to
bestow by implication on the general court one of the most odious and oppressive prerogatives of the ancient kings of
England. It is manifestly contrary to the first principles of civil liberty and natural justice, and to the spirit of our constitution
and laws, that any one citizen should enjoy privileges and advantages which are denied to all others under like
circumstances; or that ant one should be subject to losses, damages, suits, or actions from which all others under like
circumstances are exempted.
To illustrate the principle: A section of a statute relative to dogs made the owner of any dog liable to the owner of domestic
animals wounded by it for the damages without proving a knowledge of it vicious disposition. By a provision of the act,
power was given to the board of supervisors to determine whether or not during the current year their county should be
governed by the provisions of the act of which that section constituted a part. It was held that the legislature could not
confer that power. The court observed that it could no more confer such a power than to authorize the board of
supervisors of a county to abolish in such county the days of grace on commercial paper, or to suspend the statute of
limitations. (Slinger vs. Henneman [1875], 38 Wis., 504.) A similar statute in Missouri was held void for the same reason in
State vs. Field ([1853, 17 Mo., 529;59 Am. Dec., 275.) In that case a general statute formulating a road system contained
a provision that "if the county court of any county should be of opinion that the provisions of the act should not be
enforced, they might, in their discretion, suspend the operation of the same for any specified length of time, and
thereupon the act should become inoperative in such county for the period specified in such order; and thereupon order
the roads to be opened and kept in good repair, under the laws theretofore in force." Said the court: ". . . this act, by its
own provisions, repeals the inconsistent provisions of a former act, and yet it is left to the county court to say which act
shall be enforce in their county. The act does not submit the question to the county court as an original question, to be
decided by that tribunal, whether the act shall commence its operation within the county; but it became by its own terms a
law in every county not excepted by name in the act. It did not, then, require the county court to do any act in order to give
it effect. But being the law in the county, and having by its provisions superseded and abrogated the inconsistent
provisions of previous laws, the county court is . . . empowered, to suspend this act and revive the repealed provisions of
the former act. When the question is before the county court for that tribunal to determine which law shall be in force, it is
urge before us that the power then to be exercised by the court is strictly legislative power, which under our constitution,
cannot be delegated to that tribunal or to any other body of men in the state. In the present case, the question is not
presented in the abstract; for the county court of Saline county, after the act had been for several months in force in that
county, did by order suspend its operation; and during that suspension the offense was committed which is the subject of
the present indictment . . . ."
True, the legislature may enact laws for a particular locality different from those applicable to other localities and, while
recognizing the force of the principle hereinabove expressed, courts in may jurisdiction have sustained the
constitutionality of the submission of option laws to the vote of the people. (6 R.C.L., p. 171.) But option laws thus
sustained treat of subjects purely local in character which should receive different treatment in different localities placed
under different circumstances. "They relate to subjects which, like the retailing of intoxicating drinks, or the running at
large of cattle in the highways, may be differently regarded in different localities, and they are sustained on what seems to
us the impregnable ground, that the subject, though not embraced within the ordinary powers of municipalities to make
by-laws and ordinances, is nevertheless within the class of public regulations, in respect to which it is proper that the local
judgment should control." (Cooley on Constitutional Limitations, 5th ed., p. 148.) So that, while we do not deny the right of
local self-government and the propriety of leaving matters of purely local concern in the hands of local authorities or for
the people of small communities to pass upon, we believe that in matters of general of general legislation like that which
treats of criminals in general, and as regards the general subject of probation, discretion may not be vested in a manner
so unqualified and absolute as provided in Act No. 4221. True, the statute does not expressly state that the provincial
boards may suspend the operation of the Probation Act in particular provinces but, considering that, in being vested with
the authority to appropriate or not the necessary funds for the salaries of probation officers, they thereby are given
absolute discretion to determine whether or not the law should take effect or operate in their respective provinces, the
provincial boards are in reality empowered by the legislature to suspend the operation of the Probation Act in particular
provinces, the Act to be held in abeyance until the provincial boards should decide otherwise by appropriating the
necessary funds. The validity of a law is not tested by what has been done but by what may be done under its provisions.
It in conceded that a great deal of latitude should be granted to the legislature not only in the expression of what may be
termed legislative policy but in the elaboration and execution thereof. "Without this power, legislation would become
oppressive and yet imbecile." (People vs. Reynolds, 5 Gilman, 1.) It has been said that popular government lives because
of the inexhaustible reservoir of power behind it. It is unquestionable that the mass of powers of government is vested in
the representatives of the people and that these representatives are no further restrained under our system than by the
express language of the instrument imposing the restraint, or by particular provisions which by clear intendment, have
that effect. (Angara vs. Electoral Commission [1936], 35 Off. Ga., 23; Schneckenburger vs. Moran [1936], 35 Off. Gaz.,
1317.) But, it should be borne in mind that a constitution is both a grant and a limitation of power and one of these time-

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honored limitations is that, subject to certain exceptions, legislative power shall not be delegated.
We conclude that section 11 of Act No. 4221 constitutes an improper and unlawful delegation of legislative authority to the
provincial boards and is, for this reason, unconstitutional and void.
3. It is also contended that the Probation Act violates the provisions of our Bill of Rights which prohibits the denial to any
person of the equal protection of the laws (Act. III, sec. 1 subsec. 1. Constitution of the Philippines.)
This basic individual right sheltered by the Constitution is a restraint on all the tree grand departments of our government
and on the subordinate instrumentalities and subdivision thereof, and on many constitutional power, like the police power,
taxation and eminent domain. The equal protection of laws, sententiously observes the Supreme Court of the United
States, "is a pledge of the protection of equal laws." (Yick Wo vs. Hopkins [1886], 118 U. S., 356; 30 Law. ed., 220; 6 Sup.
Ct. Rep., 10464; Perley vs. North Carolina, 249 U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course, what may
be regarded as a denial of the equal protection of the laws in a question not always easily determined. No rule that will
cover every case can be formulated. (Connolly vs. Union Sewer Pipe Co. [1902], 184, U. S., 540; 22 Sup. Ct., Rep., 431;
46 Law. ed., 679.) Class legislation discriminating against some and favoring others in prohibited. But classification on a
reasonable basis, and nor made arbitrarily or capriciously, is permitted. The classification, however, to be reasonable
must be based on substantial distinctions which make real differences; it must be germane to the purposes of the law; it
must not be limited to existing conditions only, and must apply equally to each member of the class
In the case at bar, however, the resultant inequality may be said to flow from the unwarranted delegation of legislative
power, although perhaps this is not necessarily the result in every case. Adopting the example given by one of the
counsel for the petitioners in the course of his oral argument, one province may appropriate the necessary fund to defray
the salary of a probation officer, while another province may refuse or fail to do so. In such a case, the Probation Act
would be in operation in the former province but not in the latter. This means that a person otherwise coming within the
purview of the law would be liable to enjoy the benefits of probation in one province while another person similarly
situated in another province would be denied those same benefits. This is obnoxious discrimination. Contrariwise, it is
also possible for all the provincial boards to appropriate the necessary funds for the salaries of the probation officers in
their respective provinces, in which case no inequality would result for the obvious reason that probation would be in
operation in each and every province by the affirmative action of appropriation by all the provincial boards. On that
hypothesis, every person coming within the purview of the Probation Act would be entitled to avail of the benefits of the
Act. Neither will there be any resulting inequality if no province, through its provincial board, should appropriate any
amount for the salary of the probation officer - which is the situation now - and, also, if we accept the contention that, for
the purpose of the Probation Act, the City of Manila should be considered as a province and that the municipal board of
said city has not made any appropriation for the salary of the probation officer. These different situations suggested show,
indeed, that while inequality may result in the application of the law and in the conferment of the benefits therein provided,
inequality is not in all cases the necessary result. But whatever may be the case, it is clear that in section 11 of the
Probation Act creates a situation in which discrimination and inequality are permitted or allowed. There are, to be sure,
abundant authorities requiring actual denial of the equal protection of the law before court should assume the task of
setting aside a law vulnerable on that score, but premises and circumstances considered, we are of the opinion that
section 11 of Act No. 4221 permits of the denial of the equal protection of the law and is on that account bad. We see no
difference between a law which permits of such denial. A law may appear to be fair on its face and impartial in
appearance, yet, if it permits of unjust and illegal discrimination, it is within the constitutional prohibitions.
In other words, statutes may be adjudged unconstitutional because of their effect in operation .Under section 11 of the
Probation Act, not only may said Act be in force in one or several provinces and not be in force in other provinces, but one
province may appropriate for the salary of the probation officer of a given year - and have probation during that year - and
thereafter decline to make further appropriation, and have no probation is subsequent years. While this situation goes
rather to the abuse of discretion which delegation implies, it is here indicated to show that the Probation Act sanctions a
situation which is intolerable in a government of laws, and to prove how easy it is, under the Act, to make the guaranty of
the equality clause but "a rope of sand".
Great reliance is placed by counsel for the respondents on the case of Ocampo vs. United States). In that case, the
Supreme Court of the United States affirmed the decision of this court (18 Phil., 1) by declining to uphold the contention
that there was a denial of the equal protection of the laws because, as held in Missouri vs. Lewis (Bowman vs. Lewis)
decided in 1880 (101 U. S., 220; 25 Law. ed., 991), the guaranty of the equality clause does not require territorial
uniformity. It should be observed, however, that this case concerns the right to preliminary investigations in criminal cases
originally granted by General Orders No. 58. No question of legislative authority was involved and the alleged denial of
the equal protection of the laws was the result of the subsequent enactment of Act No. 612, amending the charter of the
City of Manila (Act No. 813) and providing in section 2 thereof that "in cases triable only in the court of first instance of the
City of Manila, the defendant . . . shall not be entitled as of right to a preliminary examination in any case where the
prosecuting attorney, after a due investigation of the facts . . . shall have presented an information against him in proper
form . . . ." Upon the other hand, an analysis of the arguments and the decision indicates that the investigation by the
prosecuting attorney - although not in the form had in the provinces - was considered a reasonable substitute for the City
of Manila, considering the peculiar conditions of the city as found and taken into account by the legislature itself.
Reliance is also placed on the case of Missouri vs. Lewis, supra. That case has reference to a situation where the
constitution of Missouri permits appeals to the Supreme Court of the state from final judgments of any circuit court, except
those in certain counties for which counties the constitution establishes a separate court of appeals called St. Louis Court
of Appeals. The provision complained of, then, is found in the constitution itself and it is the constitution that makes the
apportionment of territorial jurisdiction.

106
We are of the opinion that section 11 of the Probation Act is unconstitutional and void because it is also repugnant to
equal-protection clause of our Constitution.
Section 11 of the Probation Act being unconstitutional and void for the reasons already stated, the next inquiry is whether
or not the entire Act should be avoided.
In seeking the legislative intent, the presumption is against any mutilation of a statute, and the courts will resort to
elimination only where an unconstitutional provision is interjected into a statute otherwise valid, and is so independent and
separable that its removal will leave the constitutional features and purposes of the act substantially unaffected by the
process. (Riccio vs. Hoboken, 69 N. J. Law., 649, 662; 63 L. R. A., 485; 55 Atl., 1109, quoted in Williams vs. Standard Oil
Co. [1929], 278 U.S., 235, 240; 73 Law. ed., 287, 309; 49 Sup. Ct. Rep., 115; 60 A. L. R., 596.) In Barrameda vs.
Moir ([1913], 25 Phil., 44, 47), this court stated the well-established rule concerning partial invalidity of statutes in the
following language:
. . . where part of the a statute is void, as repugnant to the Organic Law, while another part is valid, the valid portion, if
separable from the valid, may stand and be enforced. But in order to do this, the valid portion must be in so far
independent of the invalid portion that it is fair to presume that the Legislative would have enacted it by itself if they had
supposed that they could not constitutionally enact the other.Enough must remain to make a complete, intelligible, and
valid statute, which carries out the legislative intent. (Pearson vs. Bass. 132 Ga., 117; 63 S. E., 798.) The void provisions
must be eliminated without causing results affecting the main purpose of the Act, in a manner contrary to the intention of
the Legislature
The language used in the invalid part of a statute can have no legal force or efficacy for any purpose whatever, and what
remains must express the legislative will, independently of the void part, since the court has no power to legislate.
It is contended that even if section 11, which makes the Probation Act applicable only in those provinces in which the
respective provincial boards provided for the salaries of probation officers were inoperative on constitutional grounds, the
remainder of the Act would still be valid and may be enforced. We should be inclined to accept the suggestions but for the
fact that said section is, in our opinion, is inseparably linked with the other portions of the Act that with the elimination of
the section what would be left is the bare idealism of the system, devoid of any practical benefit to a large number of
people who may be deserving of the intended beneficial result of that system. The clear policy of the law, as may be
gleaned from a careful examination of the whole context, is to make the application of the system dependent entirely upon
the affirmative action of the different provincial boards through appropriation of the salaries for probation officers at rates
not lower than those provided for provincial fiscals. Without such action on the part of the various boards, no probation
officers would be appointed by the Secretary of Justice to act in the provinces. The Philippines is divided or subdivided
into provinces and it needs no argument to show that if not one of the provinces - and this is the actual situation now appropriate the necessary fund for the salary of a probation officer, probation under Act No. 4221 would be illusory. There
can be no probation without a probation officer. Neither can there be a probation officer without the probation system.
Section 2 of the Acts provides that the probation officer shall supervise and visit the probationer. Every probation officer is
given, as to the person placed in probation under his care, the powers of the police officer. It is the duty of the probation
officer to see that the conditions which are imposed by the court upon the probationer under his care are complied with.
Among those conditions, the following are enumerated in section 3 of the Act:
That the probationer (a) shall indulge in no injurious or vicious habits;
(b) Shall avoid places or persons of disreputable or harmful character;
(c) Shall report to the probation officer as directed by the court or probation officers;
(d) Shall permit the probation officer to visit him at reasonable times at his place of abode or elsewhere;
(e) Shall truthfully answer any reasonable inquiries on the part of the probation officer concerning his conduct or
condition; "(f) Shall endeavor to be employed regularly; "(g) Shall remain or reside within a specified place or locality;
(f) Shall make reparation or restitution to the aggrieved parties for actual damages or losses caused by his offense;
(g) Shall comply with such orders as the court may from time to time make; and
(h) Shall refrain from violating any law, statute, ordinance, or any by-law or regulation, promulgated in accordance with
law.
The court is required to notify the probation officer in writing of the period and terms of probation. Under section 4, it is
only after the period of probation, the submission of a report of the probation officer and appropriate finding of the court
that the probationer has complied with the conditions of probation that probation may be definitely terminated and the
probationer finally discharged from supervision. Under section 5, if the court finds that there is non-compliance with said
conditions, as reported by the probation officer, it may issue a warrant for the arrest of the probationer and said
probationer may be committed with or without bail. Upon arraignment and after an opportunity to be heard, the court may
revoke, continue or modify the probation, and if revoked, the court shall order the execution of the sentence originally
imposed. Section 6 prescribes the duties of probation officers: "It shall be the duty of every probation officer to furnish to
all persons placed on probation under his supervision a statement of the period and conditions of their probation, and to
instruct them concerning the same; to keep informed concerning their conduct and condition; to aid and encourage them
by friendly advice and admonition, and by such other measures, not inconsistent with the conditions imposed by court as
may seem most suitable, to bring about improvement in their conduct and condition; to report in writing to the court having
jurisdiction over said probationers at least once every two months concerning their conduct and condition; to keep records
of their work; make such report as are necessary for the information of the Secretary of Justice and as the latter may
require; and to perform such other duties as are consistent with the functions of the probation officer and as the court or
judge may direct. The probation officers provided for in this Act may act as parole officers for any penal or reformatory
institution for adults when so requested by the authorities thereof, and, when designated by the Secretary of Justice shall

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act as parole officer of persons released on parole under Act Number Forty-one Hundred and Three, without additional
compensation."
It is argued, however, that even without section 11 probation officers maybe appointed in the provinces under section 10
of Act which provides as follows:
There is hereby created in the Department of Justice and subject to its supervision and control, a Probation Office under
the direction of a Chief Probation Officer to be appointed by the Governor-General with the advise and consent of the
Senate who shall receive a salary of four eight hundred pesos per annum. To carry out this Act there is hereby
appropriated out of any funds in the Insular Treasury not otherwise appropriated, the sum of fifty thousand pesos to be
disbursed by the Secretary of Justice, who is hereby authorized to appoint probation officers and the administrative
personnel of the probation officer under civil service regulations from among those who possess the qualifications,
training and experience prescribed by the Bureau of Civil Service, and shall fix the compensation of such probation
officers and administrative personnel until such positions shall have been included in the Appropriation Act.
But the probation officers and the administrative personnel referred to in the foregoing section are clearly not those
probation officers required to be appointed for the provinces under section 11. It may be said, reddendo singula singulis,
that the probation officers referred to in section 10 above-quoted are to act as such, not in the various provinces, but in
the central office known as the Probation Office established in the Department of Justice, under the supervision of the
Chief Probation Officer. When the law provides that "the probation officer" shall investigate and make reports to the court
(secs. 1 and 4); that "the probation officer" shall supervise and visit the probationer (sec. 2; sec. 6, par. d); that the
probationer shall report to the "probationer officer" (sec. 3, par. c.), shall allow "the probationer officer" to visit him (sec. 3,
par. d), shall truthfully answer any reasonable inquiries on the part of "the probation officer" concerning his conduct or
condition (sec. 3, par. 4); that the court shall notify "the probation officer" in writing of the period and terms of probation
(sec. 3, last par.), it means the probation officer who is in charge of a particular probationer in a particular province. It
never could have been intention of the legislature, for instance, to require the probationer in Batanes, to report to a
probationer officer in the City of Manila, or to require a probation officer in Manila to visit the probationer in the said
province of Batanes, to place him under his care, to supervise his conduct, to instruct him concerning the conditions of his
probation or to perform such other functions as are assigned to him by law.
That under section 10 the Secretary of Justice may appoint as many probation officers as there are provinces or groups
of provinces is, of course possible. But this would be arguing on what the law may be or should be and not on what the
law is. Between is and ought there is a far cry. The wisdom and propriety of legislation is not for us to pass upon. We may
think a law better otherwise than it is. But much as has been said regarding progressive interpretation and judicial
legislation we decline to amend the law. We are not permitted to read into the law matters and provisions which are not
there. Not for any purpose - not even to save a statute from the doom of invalidity.
Upon the other hand, the clear intention and policy of the law is not to make the Insular Government defray the salaries of
probation officers in the provinces but to make the provinces defray them should they desire to have the Probation Act
apply thereto. The sum of P50,000, appropriated "to carry out the purposes of this Act", is to be applied, among other
things, for the salaries of probation officers in the central office at Manila. These probation officers are to receive such
compensations as the Secretary of Justice may fix "until such positions shall have been included in the Appropriation Act".
It was the intention of the legislature to empower the Secretary of Justice to fix the salaries of the probation officers in the
provinces or later on to include said salaries in an appropriation act. Considering, further, that the sum of P50,000
appropriated in section 10 is to cover, among other things, the salaries of the administrative personnel of the Probation
Office, what would be left of the amount can hardly be said to be sufficient to pay even nominal salaries to probation
officers in the provinces. We take judicial notice of the fact that there are 48 provinces in the Philippines and we do not
think it is seriously contended that, with the fifty thousand pesos appropriated for the central office, there can be in each
province, as intended, a probation officer with a salary not lower than that of a provincial fiscal. If this a correct, the
contention that without section 11 of Act No. 4221 said act is complete is an impracticable thing under the remainder of
the Act, unless it is conceded that in our case there can be a system of probation in the provinces without probation
officers.
Probation as a development of a modern penology is a commendable system. Probation laws have been enacted, here
and in other countries, to permit what modern criminologist call the "individualization of the punishment", the adjustment
of the penalty to the character of the criminal and the circumstances of his particular case. It provides a period of grace in
order to aid in the rehabilitation of a penitent offender. It is believed that, in any cases, convicts may be reformed and their
development into hardened criminals aborted. It, therefore, takes advantage of an opportunity for reformation and avoids
imprisonment so long as the convicts gives promise of reform. (United States vs. Murray [1925], 275 U. S., 347 357, 358;
72 Law. ed., 309; 312, 313; 48 Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F. [2d], 664, 665.) The Welfare of society is its
chief end and aim. The benefit to the individual convict is merely incidental. But while we believe that probation is
commendable as a system and its implantation into the Philippines should be welcomed, we are forced by our
inescapable duty to set the law aside because of the repugnancy to our fundamental law.
In arriving at this conclusion, we have endeavored to consider the different aspects presented by able counsel for both
parties, as well in their memorandums as in their oral argument. We have examined the cases brought to our attention,
and others we have been able to reach in the short time at our command for the study and deliberation of this case. In the
examination of the cases and in then analysis of the legal principles involved we have inclined to adopt the line of action
which in our opinion, is supported better reasoned authorities and is more conducive to the general welfare. (Smith, Bell &
Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the conflict of authorities, we have declined to be bound by certain
adjudicated cases brought to our attention, except where the point or principle is settled directly or by clear implication by
the more authoritative pronouncements of the Supreme Court of the United States. This line of approach is justified

108
because:
(a) The constitutional relations between the Federal and the State governments of the United States and the dual
character of the American Government is a situation which does not obtain in the Philippines;
(b) The situation of s state of the American Union of the District of Columbia with reference to the Federal Government of
the United States is not the situation of the province with respect to the Insular Government (Art. I, sec. 8 cl. 17 and 10th
Amendment, Constitution of the United States; Sims vs. Rives, 84 Fed. [2d], 871),
(c) The distinct federal and the state judicial organizations of the United States do not embrace the integrated judicial
system of the Philippines (Schneckenburger vs. Moran [1936], 35 Off. Gaz., p. 1317);
(d) "General propositions do not decide concrete cases" (Justice Holmes in Lochner vs. New York [1904], 198 U. S., 45,
76; 49 Law. ed., 937, 949) and, "to keep pace with . . . new developments of times and circumstances" (Chief Justice
Waite in Pensacola Tel. Co. vs. Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale Law Journal, Vol.
XXIX, No. 2, Dec. 1919, 141, 142), fundamental principles should be interpreted having in view existing local conditions
and environment.
Act No. 4221 is hereby declared unconstitutional and void and the writ of prohibition is, accordingly, granted. Without any
pronouncement regarding costs. So ordered.
Avancea, C.J., Imperial, Diaz and Concepcion, JJ., concur.
Villa-real and Abad Santos, JJ., concur in the result.

109

G.R. No. L-23326

December 18, 1965

PHILIPPINE CONSTITUTION ASSOCIATION, INC., JOSE E. ROMERO, SALVADOR ARANETA, GUILLERMO B.

GUEVARA, PIO PEDROSA, CONRADO BENITEZ, JOSE M. ARUEGO, SOTERO H. LAUREL, FELIXBERTO M.
SERRANO, and ROMAN OZAETA, petitioners,
vs.
PEDRO M. GIMENEZ, JOSE VELASCO, ELADIO SALITA and JOSE AVILES, respondents.
REGALA, J.:
We are called upon in this case to decide the grave and fundamental problem of the constitutionality of Republic Act
No. 3836 "insofar as the same allows retirement gratuity and commutation of vacation and sick leave to Senators and
Representatives, and to the elective officials of both houses (of Congress)." The suit was instituted by the Philippine
Constitution Association, Inc. (Philconsa, for short), a non-profit civic organization, duly incorporated under Philippine
laws, by way of a petition for prohibition with preliminary injunction to restrain the Auditor General of the Philippines
and the disbursing officers of both Houses of Congress from "passing in audit the vouchers, and from countersigning
the checks or treasury warrants for the payment to any former Senator or former Member of the House of
Representatives of retirement and vacation gratuities pursuant to Republic Act No. 3836; and likewise restraining the
respondent disbursing officers of the House and Senate, respectively, and their successors in office from paying the
said retirement and vacation gratuities."
It is argued that the above-numbered Republic Act, at least to the end that it provided for the retirement of the
members of Congress in the manner and terms that it did, is unconstitutional and void. The challenge to the
constitutionality of the law is centered on the following propositions:
1. The provision for the retirement of the members and certain officers of Congress is not expressed in the title
of the bill, in violation of section 21 (1) of Article VI of the Constitution.
2. The provision on retirement gratuity is an attempt to circumvent the Constitutional ban on increase of
salaries of the members of Congress during their term of office, contrary to the provisions of Article VI, Section
14 of the Constitution.
3. The same provision constitutes "selfish class legislation" because it allows members and officers of
Congress to retire after twelve (12) years of service and gives them a gratuity equivalent to one year salary for
every four years of service, which is not refundable in case of reinstatement or re-election of the retiree, while
all other officers and employees of the government can retire only after at least twenty (20) years of service
and are given a gratuity which is only equivalent to one month salary for every year of service, which, in any
case, cannot exceed 24 months.
4. The provision on vacation and sick leave, commutable at the highest rate received, insofar as members of
Congress are concerned, is another attempt of the legislators to further increase their compensation in
violation of the Constitution.
The text of Republic Act No. 3836
The text of Republic Act No. 3836 reads:
AN ACT AMENDING SUBSECTION (c), SECTION TWELVE OF COMMONWEALTH ACT NUMBERED ONE
HUNDRED EIGHTY-SIX, AS AMENDED BY REPUBLIC ACT NUMBERED THIRTY HUNDRED NINETY-SIX:
Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:
SECTION 1. Subsection (c), Section twelve of Commonwealth Act Numbered One Hundred eighty-six, as
amended by Republic Act Numbered Thirty hundred ninety-six, is further amended to read as follows:
"(c) Retirement is likewise allowed to a member, regardless of age, who has rendered at least twenty years of
service. The benefit shall, in addition to the return of his personal contributions plus interest and the payment
of the corresponding employer's premiums described in subsection (a) of Section five hereof, without interest,
be only a gratuity equivalent to one month's salary for every year of service, based on the highest rate
received, but not to exceed twenty-four months: Provided, That the retiring officer or employee has been in the
service of the said employer or office for at least four years immediately preceding his retirement.
"Retirement is also allowed to a senator or a member of the House of Representatives and to an elective
officer of either House of the Congress, regardless of age, provided that in the case of a Senator or Member,
he must have served at least twelve years as a Senator and/or as a member of the House of Representatives,
and, in the case of an elective officer of either House, he must have served the government for at least twelve
years, not less than four years of which must have been rendered as such elective officer: Provided, That the
gratuity payable to a retiring senator, member of the House of Representatives, or elective officer, of either
House, shall be equivalent to one year's salary for every four years of service in the government and the same

110
shall be exempt from any tax whatsoever and shall be neither liable to attachment or execution nor refundable
in case of reinstatement or re-election of the retiree.
"This gratuity is payable by the employer or office concerned which is hereby authorized to provide the
necessary appropriation or pay the same from any unexpended items of appropriations or savings in its
appropriations or saving in its appropriations.
"Elective or appointive officials and employees paid gratuity under this subsection shall be entitled to the
commutation of the unused vacation and sick leave, based on the highest rate received, which they may have
to their credit at the time of retirement."
SECTION 2. This Act shall take effect upon its approval.
Approved, June 22, 1963.
The Solicitor General's Office, in representation of the respondent, filed its answer on September 8, 1964, and
contends, by way of special and affirmative defenses that:
1. The grant of retirement or pension benefits under Republic Act No. 3836 to the officers objected to by the
petitioner does not constitute "forbidden compensation" within the meaning of Section 14 of Article VI of the
Philippine Constitution.
2. The title of the law in question sufficiently complies with the provisions of Section 21, Article VI, of the
Constitution that "no bill which may be enacted into law shall embrace more than one subject which shall be
expressed in the title of the bill.
3. The law in question does not constitute legislation.
4. Certain indispensable parties, specifically the elected officers of Congress who are authorized to approve
vouchers for payments for funds under the law in question, and the claimants to the vouchers to be presented
for payment under said items, were not included in the petition.
5. The petitioner has no standing to institute this suit.
6. The payment of commutable vacation and sick leave benefits under the said Act is merely "in the nature of
a basis for computing the gratuity due each retiring member" and, therefore, is not an indirect scheme to
increase their salary.
A brief historical background of Republic Act No. 3836
Republic Act No. 3836 was originally House Bill No. 6051, which was introduced by Congressmen Marcial R. Pimentel
of Camarines Norte and Marcelino R. Veloso of the Third District of Leyte, on May 6, 1963. On the same date, it was
referred to the Committee on Civil Service. which on the following May 8, submitted its REPORT No. 3129,
recommending approval of the bill with amendments, among others, that the word "TWENTY" in the bill as filed
representing the number of years that a senator or member must serve in Congress to entitle him to retirement under
the bill must be reduced to "TWELVE" years, and that the following words were inserted, namely, "AND THE SAME
(referring to gratuity) SHALL BE EXEMPT FROM ANY TAX WHATSOEVER AND SHALL NOT BE LIABLE FROM
ATTACHMENT OR EXECUTION NOR REFUNDABLE IN CASE OF REINSTATEMENT OR REELECTION OF THE
RETIREE." On May 8, 1963, the bill with the proposed amendments was approved on second reading. It was passed
on third reading on May 13, 1963, and on the same day was sent to the Senate, which, in turn, on May 23, 1963,
passed it without amendment. The bill was finally approved on June 22, 1963. As explained in the EXPLANATORY
NOTE attached to the bill, among others
The inclusion of members of Congress in subsection (c), Section 12 of C.A. 186, as amended, will enable
them to retire voluntarily, regardless of age, after serving a minimum of twenty years as a Member of
Congress. This gratuity will insure the security of the family of the retiring member of Congress with the latter
engaging in other activities which may detract from his exalted position and usefulness as lawmaker. It is
expected that with this assurance of security for his loved ones, deserving and well-intentioned but poor men
will be attracted to serve their people in Congress.
As finally approved, the law (Subsection [c], paragraph 2, Section 1, R.A. 3836) allows a Senator or a Member of the
House of Representatives and an elective officer of either House of Congress to retire regardless of age. To be eligible
for retirement, he must have served for at least twelve years as such Senator and/or as member of the House of
Representatives. For an elective officer of either House, he must have served the government for at least twelve
years, of which not less than four years must have been rendered as such elective officer. The gratuity payable by the
employer or office concerned is equivalent to one year's salary for every four years of service in the government. Said
gratuity is exempt from taxation, not liable to attachment or execution, and not refundable in case of reinstatement or
re-election of the retiree.

111
First legal point personality of the Petitioner to bring suit.
The first point to be considered is whether petitioner Philconsa has a standing to institute this action. This Court has
not hesitated to examine past decisions involving this matter. This Court has repeatedly held that when the petitioner,
like in this case, is composed of substantial taxpayers, and the outcome will affect their vital interests, they are allowed
to bring this suit. (Pascual v. Secretary, G.R. No. L-10405, December 29, 1960; and Gonzales v. Hechanova, 60 Off.
Gaz. 802 [1963]).
The petitioner, Philconsa, is precisely a non-profit, civic organization composed of several leaders from all walks of life
whose main objective is to uphold the principles of the Constitution.
In rejecting the motion to dismiss in the case of Pascual v. Secretary, supra, this Court stated, among other things, that
"there are many decisions nullifying, at the instance of the taxpayers, laws providing the disbursement of public funds,
upon the theory that the expenditure of public funds by an officer of the State for the purpose of administering an
unconstitutional act constitutes a misappropriation of such funds, which may be enjoined at the request of the
taxpayers."1 This legislation (Republic Act 3836) involves the disbursement of public funds.
We are not, however, unmindful of the ruling laid down by the Supreme Court of the United States in the case
ofMassachusetts v. Mellon, 262 U.S. 447, holding that:
... the relation of a taxpayer of the United States to the Federal Government is very different. His interest in the
moneys of the Treasury partly realized from taxation and partly from other sources is shared with
millions of others; is comparatively minute and indeterminable; and the effect upon future taxation of any
payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the
preventive powers of equity.
The general view in the United States, which is followed here, is stated in the American Jurisprudence, thus
In the determination of the degree of interest essential to give the requisite standing to attack the
constitutionality of a statute the general rule is that not only persons individually affected, but also taxpayers
have sufficient interest in preventing the illegal expenditure of moneys raised by taxation and may therefore
question the constitutionality of statutes requiring expenditure of public moneys. (11 Am. Jur. 761; emphasis
supplied.)
As far as the first point is concerned, We hold, therefore, that the contention of the Solicitor General is untenable.
Second legal point Whether or not Republic Act No. 3836 falls within the prohibition embodied in Art. VI, section 14
of the Constitution.
The first constitutional question is whether Republic Act 3836 violates Section 14, Article VI, of the Constitution, which
reads as follows:
The senators and the Members of the House of Representatives shall, unless otherwise provided by law,
receive an annual compensation of seven thousand two hundred pesos each, including per diems and other
emoluments or allowances, and exclusive only of travelling expenses to and from their respective districts in
the case of Members of the House of Representative and to and from their places of residence in the case of
Senators, when attending sessions of the Congress. No increase in said compensation shall take effect until
after the expiration of the full term of all the Members of the Senate and of the House of Representatives
approving such increase. Until otherwise provided by law, the President of the Senate and the Speaker of the
House of Representatives shall each receive an annual compensation of sixteen thousand pesos (emphasis
supplied)
Before discussing this point, it is worthy to note that the Constitution embodies some limitations and prohibitions upon
the members of Congress, to wit:
1. They may not hold any other office or employment in the Government without forfeiting their respective
seats;
2. They shall not be appointed, during the time for which they are elected, to any civil office which may have
been created or the emoluments whereof shall have been increased while they were members of Congress;
(Section 16, Article VI, Constitution)
3. They cannot be financially interested in any franchise;
4. They cannot appear in any civil case wherein the Government is an adverse party;
5. They cannot appear as counsel before any Electoral Tribunal; and
6. They cannot appear as counsel in any criminal case where an officer or employee of the Government is
accused. (Section 17, Article VI, Constitution)
In addition to the above prohibitions, the Anti-Graft Law (Republic Act 3019) also prohibits members of Congress to
have any special interest in any specific business which will directly or indirectly be favored by any law or resolution
authored by them during their term of office.

112
It is thus clear that the Constitutional Convention wisely surrounded the Constitution with these limitations and
prohibitions upon Members of Congress. This is a practical demonstration or application of the principle of the and
balances which is one of the peculiar characteristics of our Constitution. In the light of this background, can We
conclude that Congress can validly enact Republic Act 3836, providing retirement benefits to its members, without
violating the provisions in the aforementioned Article VI, Section 14, of the Constitution, regarding increase of the
compensation act including other emoluments?
It is worthy to note that the original salary for the members of the National Assembly (unicameral body) was fixed at
P5,000.00 per annum each. This was raised to P7,200 per annum by the enactment of the 1940 Constitutional
amendment, when the unicameral body, the National Assembly, was changed to Congress, composed of two bodies,
the Senate and the House of Representatives. Again, in 1964, by the enactment of Republic Act 4143, the salary for
the Members of Congress was raised to P32,000.00 per annum for each of them; and for the President of the Senate
and the Speaker of the House of Representatives, to P40,000.00 per annum each.
Likewise, it is significant that, as stated above, when the Constitutional Convention first determined the compensation
for the Members of Congress, the amount fixed by it was only P5,000.00 per annum, but it embodies a special proviso
which reads as follows: "No increase in said compensation shall take effect until after the expiration of the full term of
all the members of the National Assembly elected subsequent to approval of such increase." In other words, under the
original constitutional provision regarding the power of the National Assembly to increase the salaries of its members,
no increase would take effect until after the expiration of the full term of the members of the Assembly elected
subsequent to the approval of such increase. (See Aruego, The Framing of the Constitution, Vol. 1, pp. 296-300;
Sinco, Philippine Government and Political Law, 4th ed., p. 187)
This goes to show how zealous were the members of the Constitutional Convention in guarding against the temptation
for members of Congress to increase their salaries. However, the original strict prohibition was modified by the
subsequent provision when the Constitutional amendments were approved in 1940 2
The Constitutional provision in the aforementioned Section 14, Article VI, includes in the term compensation "other
emoluments." This is the pivotal point on this fundamental question as to whether the retirement benefits as provided
for in Republic Act 3836 fall within the purview of the term "other emoluments."
Most of the authorities and decided cases have regarded "emolument" as "the profit arising from office or employment;
that which is received as compensation for services or which is annexed to the possession of an office, as salary, fees
and perquisites.3
In another set of cases, "emolument" has been defined as "the profit arising from office or employment; that which is
received as compensation for services, or which is annexed to the possession of office, as salary, fees and
perquisites; advantage, gain, public or private." The gain, profit or advantage which is contemplated in the definition or
significance of the word "emolument" as applied to public officers, clearly comprehends, We think, a gain, profit, or
advantage which is pecuniary in character. (citing Taxpayers' League of Cargon County v. McPherson, 54 P. 2d. 897,
90l.: 49 Wy. 26; 106 A.L.R. 767)
In Schieffelin v. Berry, 216 N.Y.S. (citing Wright v. Craig, 202 App. Div. 684, 195 N.Y.S. 391, affirmed 234 N.Y. 548, 138
N.E. 441), it has been established that pensions and retirement allowances are part of compensation of public
officials; otherwise their payment would be unconstitutional.
In another case, State v. Schmahl, 145 N.W. 795, 125 Minn. 104, it is stated that "as used in Article 4, section 9, of the
Constitution of Minnesota, providing that no Senator or Representative shall hold any office, the emoluments of which
have been increased during the session of the Legislature of which he was a member, until after the expiration of his
term of office in the Legislature, the word "emoluments" does not refer to the fixed salary alone, but includes fees and
compensation as the incumbent of the office is by law entitled to receive because he holds such office and performed
some service required of the occupant thereof."
From the decisions of these cases, it is evident that retirement benefit is a form or another species of emolument,
because it is a part of compensation for services of one possessing any office.
Republic Act No. 3836 provides for an increase in the emoluments of Senators and Members of the House of
Representatives, to take effect upon the approval of said Act, which was on June 22, 1963. Retirement benefits were
immediately available thereunder, without awaiting the expiration of the full term of all the Members of the Senate and
the House of Representatives approving such increase. Such provision clearly runs counter to the prohibition in Article
VI, Section 14 of the Constitution.
Third Legal Point Whether or not the law in question violates the equal protection clause of the Constitution.
Another reason in support of the conclusion reached herein is that the features of said Republic Act 3836 are patently
discriminatory, and therefore violate the equal protection clause of the Constitution. (Art. III, Sec. 1, part. 1.)
In the first place, while the said law grants retirement benefits to Senators and Members of the House of
Representatives who are elective officials, it does not include other elective officials such as the governors of
provinces and the members of the provincial boards, and the elective officials of the municipalities and chartered

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cities.
The principle of equal protection of law embodied in our Constitution has been fully explained by Us in the case
ofPeople v. Vera, 65 Phil. 56, 126, where We stated that the classification to be reasonable must be based upon
substantial distinctions which make real differences and must be germane to the purposes of the law.
As well stated by Willoughby on the Constitution of the United States (second edition), p. 1937, the principle of the
requirement of equal protection of law applies to all persons similarly situated. Why limit the application of the benefits
of Republic Act 3836 to the elected members of Congress? We feel that the classification here is not reasonable. (See
also Sinco, Philippine Political Law, 11th ed. [1962]; Selected Essays on Constitutional Law [1938-62], p. 789; The
Equal Protection of the Laws, 37 Cal. Law Rev. 341.)
Secondly, all members of Congress under Republic Act 3836 are given retirement benefits after serving twelve years,
not necessarily continuous, whereas, most government officers and employees are given retirement benefits after
serving for at least twenty years. In fact, the original bill of Act 3836 provided for twenty years of service.
In the third place, all government officers and employees are given only one retirement benefit irrespective of their
length of service in the government, whereas, under Republic Act 3836, because of no age limitation, a Senator or
Member of the House of Representatives upon being elected for 24 years will be entitled to two retirement benefits or
equivalent to six years' salary.
Also, while the payment of retirement benefits (annuity) to an employee who had been retired and reappointed is
suspended during his new employment (under Commonwealth Act 186, as amended), this is not so under Republic
Act 3836.
Lastly, it is peculiar that Republic Act 3836 grants retirement benefits to officials who are not members of the
Government Service Insurance System. Most grantees of retirement benefits under the various retirement laws have
to be members or must at least contribute a portion of their monthly salaries to the System. 4
The arguments advanced against the discriminatory features of Republic Act 3836, as far as Members of Congress
are concerned, apply with equal force to the elected officers of each House, such as the Secretaries and the
Sergeants-at-arms. Under Republic Act 3836, the Secretaries and Sergeants-at-arms of each House are given the
benefits of retirement without having served for twenty years as required with other officers and employees of the
Government.
Fourth Legal Point Whether or not the title of Republic Act No. 3836 is germane to the subject matter expressed in
the act.
Another Constitutional point to determine is whether the title of Republic Act 3836 complies with the requirement of
paragraph 1, section 21, Article VI of the Constitution, which reads as follows:
No bill which may be enacted into law shall embrace more than one subject which shall be expressed in the
title of the bill.
We are not unmindful of the fact that there has been a general disposition in all courts to construe the constitutional
provision with reference to the subject and title of the Act, liberally.
It is the contention of petitioner that the said title of Republic Act 3836 gives no inkling or notice whatsoever to the
public regarding the retirement gratuities and commutable vacation and sick leave privileges to members of Congress.
It is claimed that petitioner learned of this law for the first time only when Jose Velasco, disbursing officer of the House,
testified on January 30, 1964, before Justice Labrador, in connection with the hearing of the case, and he revealed
that in 1963, Congress enacted the retirement law for its members. In fact the Appropriation Act for the fiscal year
1964-65, Republic Act No. 4164, provides:
13. For payment of retirement gratuities of members of the Senate pursuant to the provisions of Republic Act
No. 3836: PROVIDED, That no portion of this Appropriation shall be transferred to any other item until all
approved claims shall have been paid P210,000.00.
In the appropriations for the House of Representatives the following items appear:
7. For government share of premiums on life insurance and retirement of Members and employees of the
House of Representatives, as provided for under Republic Act No. 1616 P300,000.00
8. For payment of the cash commutation of the accumulated vacation and sick leaves as provided for under
Republic Act No. 611, and retirement gratuities of Members and employees of the House of Representatives
under Republic Act No. 1616 P1,300,000.00.
In the Appropriations Act of 1965-1966 (Republic Act No. 4642), the following item appears in the appropriations for
the Senate:

114
13. For payment of retirement gratuities of Senate personnel pursuant to the provisions of Republic Act No.
1616: PROVIDED, That no portion of this appropriation shall be transferred to any other item until all approved
claims shall have been paid P100,000.00.
It is thus clear that in the Appropriations Act for 1965-1966, the item in the Senate for P210,000.00 to implement
Republic Act 3836 was eliminated.
In the appropriations for the House (1965-1966), the following items appear:
7. For government share of premiums on life insurance and retirement of Members and employees of the
House Of Representatives as provided for under Republic Act No. 1616 P1,200,000.00.
8. For payment of the cash commutation of the accumulated vacation and sick leaves as provided for under
Republic Act No. 611, and retirement gratuities of Members and employees of the House of Representatives
under Republic Act No. 1616 P1,700,000.00.
It is to be observed that under Republic Act 3836, amending the first paragraph of section 12, subsection (c) of
Commonwealth Act 186, as amended by Republic Acts Nos. 660 and. 3096, the retirement benefits are granted to
members of the Government Service Insurance System, who have rendered at least twenty years of service
regardless of age. This paragraph is related and germane to the subject of Commonwealth Act No. 186.
On the other hand, the succeeding paragraph of Republic Act 3836 refers to members of Congress and to elective
officers thereof who are not members of the Government Service Insurance System. To provide retirement benefits,
therefore, for these officials, would relate to subject matter which is not germane to Commonwealth Act No. 186. In
other words, this portion of the amendment (re retirement benefits for Members of Congress and elected officers, such
as the Secretary and Sergeants-at-arms for each House) is not related in any manner to the subject of Commonwealth
Act 186 establishing the Government Service Insurance System and which provides for both retirement and insurance
benefits to its members.
Parenthetically, it may be added that the purpose of the requirement that the subject of an Act should be expressed in
its title is fully explained by Cooley, thus: (1) to prevent surprise or fraud upon the Legislature; and (2) to fairly apprise
the people, through such publication of legislation that are being considered, in order that they may have the
opportunity of being heard thereon by petition or otherwise, if they shall so desire (Cooley, Constitutional Limitations,
8th ed., Vol. 1, p. 162; See also Martin, Political Law Reviewer, Book One [1965], p. 119)
With respect to sufficiency of title this Court has ruled in two cases:
The Constitutional requirement with respect to titles of statutes as sufficient to reflect their contents is satisfied
if all parts of a law relate to the subject expressed in its title, and it is not necessary that the title be a complete
index of the content. (People v. Carlos, 78 Phil. 535)
The Constitutional requirement that the subject of an act shall be expressed in its title should be reasonably
construed so as not to interfere unduly with the enactment of necessary legislation. It should be given a
practical, rather than technical, construction. It should be a sufficient compliance with such requirement if the
title expresses the general subject and all the provisions of the statute are germane to that general subject.
(Sumulong v. The Commission on Elections, 73 Phil. 288, 291)
The requirement that the subject of an act shall be expressed in its title is wholly illustrated and explained inCentral
Capiz v. Ramirez, 40 Phil. 883. In this case, the question raised was whether Commonwealth Act 2784, known as the
Public Land Act, was limited in its application to lands of the public domain or whether its provisions also extended to
agricultural lands held in private ownership. The Court held that the act was limited to lands of the public domain as
indicated in its title, and did not include private agricultural lands. The Court further stated that this provision of the
Constitution expressing the subject matter of an Act in its title is not a mere rule of legislative procedure, directory to
Congress, but it is mandatory. It is the duty of the Court to declare void any statute not conforming to this constitutional
provision. (See Walker v. State, 49 Alabama 329; Cooley, Constitutional Limitations, pp. 162-164; 5 See also Agcaoili v.
Suguitan, 48 Phil. 676; Sutherland on Statutory Construction, Sec. 111.)
In the light of the history and analysis of Republic Act 3836, We conclude that the title of said Republic Act 3836 is void
as it is not germane to the subject matter and is a violation of the aforementioned paragraph 1, section 21, Article VI of
the Constitution.
In short, Republic Act 3836 violates three constitutional provisions, namely: first, the prohibition regarding increase in
the salaries of Members of Congress; second, the equal protection clause; and third, the prohibition that the title of a
bill shall not embrace more than one subject.
IN VIEW OF THE FOREGOING CONSIDERATIONS, Republic Act No. 3836 is hereby declared null and void, in so far
as it refers to the retirement of Members of Congress and the elected officials thereof, as being unconstitutional. The
restraining order issued in our resolution on December 6, 1965 is hereby made permanent. No costs.

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March 24, 1972
G.R. No. L-34022
MANUEL MARTINEZ Y FESTIN, petitioner,
vs.
THE HONORABLE JESUS P. MORFE OF THE COURT OF FIRST INSTANCE OF MANILA, and THE CITY WARDEN
OF MANILA, respondents.
G.R. Nos. L-34046-7
FERNANDO BAUTISTA, SR., petitioner,
vs.
HON. FRANCISCO MA. CHANCO, Presiding Judge, Court of First Instance of Baguio and Benguet, Second
Judicial District, Branch III, et al., respondents.
FERNANDO,J.:
The question raised in thesecertiorariproceedings, one to which no authoritative answer has been yielded by past
decisions, is the scope to be accorded the constitutional immunity of senators and representatives from arrest during their
attendance at the sessions of Congress and in going to and returning from the same except in cases of treason, felony
and breach of the peace.Petitioners Manuel Martinez y Festinand Fernando Bautista, Sr.,as delegate of the present
Constitutional Convention would invoke what they consider to be the protection of the above constitutional provision, if
considered in connection with Article 145 of the Revised Penal Code penalizing a public officer or employee who shall,
during the sessions of Congress, arrest or search any member thereof, except in case such member has committed a
crime punishable under [such] Code by a penalty higher thanprision mayor.For under the Constitutional Convention Act,
delegates are entitled to the parliamentary immunities of a senator or a representative.Both petitioners are facing criminal
prosecutions, the information filed against petitioner Manuel Martinez y Festin for falsification of a public document and
two informations against petitioner Fernando Bautista, Sr. for violation of the Revised Election Code. The Solicitor
General, on behalf of the respondent Judges in the above proceedings,would dispute such a contention on the ground
that the constitutional provision does not cover any criminal prosecution being merely an exemption from arrest in civil
cases, the logical inference being that insofar as a provision of the Revised Penal Code would expand such an immunity,
it would be unconstitutional or at the very least inoperative. A careful study of the above constitutional provision, in the
light of the proceedings of the Constitutional Convention, adopting the then well-settled principle under American law and
of the purposes to be served by such an immunity, persuade us that the stand taken by the Solicitor General is correct.
Thesecertiorariproceedings cannot prosper.
The facts in both petitions forcertiorariare not in dispute. Petitioner Martinez y Festinalleged that on June 10, 1971, an
information against him for falsification a public document was filed. Its basis was his stating under oath in his certificate of
candidacy for delegate to that Constitutional Convention that he was born on June 20, 1945, when in truth and in fact he
knew that he was born on June 20, 1946. There was on July 9, 1971, a special appearance on his part questioning the
power of respondent Judge to issue a warrant of arrest and seeking that the information be quashed. On the same day,
there was an order from the lower court suspending the release of the warrant of arrest until it could act on such motion to
quash. Then came on July 22, 1971 an omnibus motion from him, with previous leave of court, to quash the information,
to quash the warrant of arrest, or to hold in abeyance further proceeding in the case. It was not favorably acted on. On
August 21, 1971, respondent Judge rendered an order denying the petitioner omnibus motion to quash. In his belief that
the information and the warrant of arrest in this case are null and void, the petitioner did not post the required bond. He
was arrested by the City Sheriff in the afternoon of September 6, 1971. At the time of the filing of the petition he was
confined at the City Jail in the custody of respondent City Warden of Manila. He was on his way to attend the plenary
session of the Constitutional Convention. Such arrest was against his will and over his protest. He was arraigned on
September 9, 1971. There was at such a time a motion by petitioner to reconsider the courts order of August 21, 1971. It
was denied in open court. On the very same day, he filed the petition forcertiorariandhabeas corpus, but having been
released thereafter on bail on September 11, 1971, the petition is now in the nature solely of acertiorariproceeding.
As for petitioner Fernando Bautista, Sr.,it was alleged that he is a duly elected and proclaimed delegate to the 1971
Constitutional Convention. He took his oath of office and assumed the functions of such office on June 1, 1971. He has
continued since then to perform the duties and discharge the responsibilities of a delegate. Two criminal complaints,
docketed as Criminal Cases Nos. 146(57) and 148(58), were directly filed with the Court of First lnstance of Baguio and
Benguet by a certain Moises Maspil, a defeated delegate-aspirant who placed 15th in the order of votes garnered against
the petitioner, and his co-accused for alleged violation of Section 51 of the Revised Penal Code in that they gave and
distributed free of charge food, drinks and cigarettes at two public meetings, one held in Sablan and the other inTuba, both
towns being in Province of Benguet. Respondent Presiding Judge conducted the preliminary investigation of said criminal
complaints. Thereafter on August 7, 1971, he issued an order for the filing of the corresponding informations. Before a
warrant of arrest in said criminal cases could be issued, petitioner in a motion of August 14, 1971 invoked the privilege of
immunity from arrest and search, pursuant to Section 15 ofRepublic Act No. 6132, otherwise known as the 1971
Constitutional Convention Act, in relation to Sec. 15, Article VI of the Constitution and Article 145 of the Revised Penal
Code. Respondent Judge, on the very same day, issued an order, holding in abeyance the issuance of a warrant of arrest
and setting the hearing of said Motion on August 23, 1971. As scheduled on August 23, 1971, there was a hearing on
such motion. Petitioner however did not prevail notwithstanding his vigorous insistence on his claim for immunity, a
warrant of arrest being ordered on the same day. On September 11, 1971, there was a motion to quash such order of
arrest filed by petitioner. He was unsuccessful, respondent Judge, in an order of said date, ordering his immediate arrest.
His petition forcertiorariand prohibition was filed with this Court on September 15, 1971.
What is thus sought by petitioners Martinez y Festin and Bautista, Sr. is that the respective warrants of arrest issued
against them be quashed on the claim that by virtue of the parliamentary immunity they enjoy as delegates, ultimately
traceable to Section 15 of Article VI of the Constitution as construed together with Article 145 of the Revised Penal Code,
they are immune from arrest. In the case of petitioner Martinez y Festin, he is proceeded against for falsification of a public

116
document punishable byprision mayor.As for petitioner Bautista, Sr., the penalty that could be imposed for each of the Revised
Election Code offense, of which he is charged, is not higher thanprision mayor.
The respondents in the above petitions were required to answer by resolutions of this Court issued on September 10 and
September 20, 1971, respectively. An answer on behalf of respondent Judge Jesus P. Morfe in the case of petitioner Martinez y
Festin was filed on September 20, 1971 with an answer in intervention filed by respondent Executive Sheriff of Manila and the
Chief of Warrant Division likewise filed on the same date. His petition was duly heard on September 14, 1971, Delegate
Estanislao A. Fernandez vehemently pressing his claim to immunity. Thereafter on October 29, 1971, a memorandum,
comprehensive in scope and persuasive in its analysis of the constitutional question presented, was filed on behalf of
respondent Judge Morfe by Solicitor General Felix Q. Antonio, two Assistants Solicitors General Bernardo P. Pardo and Rosalio
A. de Leon as well as Solicitor Vicente V. Mendoza. A memorandum on behalf of President Diosdado Macapagal of the
Constitutional Convention, who was given permission to submit such a pleading, was submitted on March 8, 1972 by the
Committee on Legal Affairs of the Constitutional Convention.
As for the petitions of Bautista, Sr., the answer on behalf of respondent Judge was filed on September 29, 1971. When the
matter was heard on October 14, 1971, he appeared through counsel, Delegate Juanito R. Remulla, while respondent Judge
was represented by Assistant Solicitor General Rosalio A. de Leon and Solicitor Vicente V. Mendoza. With the submission, on
October 30, 1971, of an able memorandum on behalf of respondent judge, again, by the same counsel from the Office of the
Solicitor General as well as a carefully-prepared memorandum of petitioner Bautista, Sr., on December 1, 1971, the matter was
deemed submitted for adjudication.
As noted at the outset,certioraridoes not lie to quash the warrants of arrest issued against petitioner Martinez y Festin as well as
petitioner Bautista, Sr. Their reliance on the constitutional provision which for them should be supplemented by what was
provided for in the Revised Penal Code is futile. There is no justification then for granting their respective pleas.
No other conclusion is allowable consistently with the plain and explicit command of the Constitution. As is made clear in Section
15 of Article VI, the immunity from arrest does not cover any prosecution for treason, felony and breach of the peace. Treason
exists when the accused levies war against the Republic or adheres to its enemies giving them aid and comfort. A felony is act or
omission punishable by law.Breach of the peace covers any offense whether defined by the Revised Penal Code or any special
statute. It is a well-settled principle in public law that the public peace must be maintained and any breach thereof renders one
susceptible to prosecution. Certainly then from the explicit language of the Constitution, even without its controlling interpretation
as shown by the debates of the Constitutional Convention to be hereinafter discussed, petitioners cannot justify their claim to
immunity. Nor does Article 145 of the Revised Penal Code come to their rescue. Such a provision that took effect in 1932 could
not survive after the Constitution became operative on November 15, 1935. As will be shown, the repugnancy between such an
expansion of the congressional immunity and the plain command of the Constitution is too great to be overcome, even on the
assumption that the penalty to which a public officer will be subjected in the event that he did arrest one entitled thereto for an
offense punishable by less thanreclusion temporalsuffices to widen its scope. This is so considering not only the history of such
a Constitutional grant of immunity but also its basic purpose and objective.
1. Even if the provision granting the legislative immunity of freedom from arrest were clothed in language less clear, its history
precludes any other interpretation. As submitted to the Constitutional Convention of 1934, the draft proposal was worded as
follows: The Members of the National Assembly shall in all cases except treason, open disturbance of public order, or other
offense punishable by death or imprisonment of not less than six years, be privileged from arrest during their attendance at the
sessions of the National Assembly, and in going to and returning from the same. On December 4, 1934, upon its being
considered by the Convention, an amendment was proposed by Delegate Aldeguer so that it would read: The Members of the
National Assembly shall in all cases except treason, felony, and breach of the peace, be privileged from arrest during their
attendance at the sessions of the National Assembly, and in going and returning from the same. What was sought by him was
to retain the provision of the Philippine Autonomy Act of 1916, with phraseology identical to that found in the American
Constitution.
He defended his proposal thus: My amendment is not new. It is the same phrase granting parliamentary immunity to the
members of the Parliament of England. It is the same phrase granting parliamentary immunity to members of Congress. It is the
same phrase granting parliamentary immunity to members of the various state legislators of the Union. Now, in reading the draft
proposed by the Sub-Committee of Seven, I found out that it is a broad rule. Mr. President, the question is not whether we
should grant privilege of immunity to the members of the National Assembly 17 He was interrupted by a point of order
raised, but he was allowed to continue. He went on: As I was saying, Mr. President and Gentlemen of the Convention, the draft
gives to the member of the National Assembly more privileges than what the nature of the office demands. My question is that if
the members of the Congress of the United States, if the members of the Parliament, if the members of the various State
Legislatures were able to perform their functions as members of law-making bodies with the privileges and immunities granted
by the phrase breach of peace. I wonder why the members of the future National Assembly cannot perform their duties with the
same limitations and with the same privileges. Mr. President and members the Convention, the history of parliamentary immunity
shows that it was never intended to exempt members of the National Assembly from criminal arrest. When American sovereignty
was implanted into these Islands, a new theory of government was implanted too. This theory of government places every man
equal before the eyes of the law. The grant of certain privileges to any set of persons means the abrogation of this principle of
equality before the eyes of the law. Another reason, Mr. President and Members of the Convention, is this: The State Legislature
is the agent of the State. The power or the right of the Legislature to claim privileges is based on the right of self-preservation.
The right of the State to claim privileges is due to the fact that it has the right to carry its function without obstacle. But we must
also remember that any Legislature is but the agent of the State. The State is the principal. Any crime committed, whether such
crime is committed by a colorum or by a gangster, endangers the State. Giving more privileges to an agent, which is the
Legislature, at the expense of the principal, which is the State, is not a sound policy. So that, Mr. President, and Members of the
Convention, believing that under the phrase breach of peace, our future members of the Assembly can very well perform the
duties incumbent upon them. I submit my amendment for the consideration of this Convention.
Delegate Manuel Roxas on behalf of the sub-committee of seven did not object. As a matter of fact, he was for such
amendment. He considered it well-founded and was for such immunity complying with the wording of the [Philippine Autonomy
Act] in this particular.The Convention readily approved the amendment by acclamation.

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It does not admit of doubt therefore that the immunity from arrest is granted by the Constitution was understood in the same
sense it has in American law, there being a similar provision in the American Constitution.Its authoritative interpretation in the
United States was supplied by the Williamson case, a 1908 decision.
According to the then Justice, later Chief Justice, White who penned the opinion, the term treason, felony and breach of the
peace, as used in the constitutional provision relied upon, excepts from the operation of the privilege all criminal offenses,
He traced its historical background thus: A brief consideration of the subject of parliamentary privilege in England will, we think,
show the source whence the expression treason felony, and breach of the peace was drawn, and leave no doubt that the
words were used in England for the very purpose of excluding all crimes from the operation of the parliamentary privilege, and
therefore to leave that privilege to apply only to prosecutions of a civil nature.Storys treatise on the Constitution was likewise
cited, his view on the matter being quite emphatic: Now, as all crimes are offenses against the peace, the phrase breach of the
peace would seem to extend to all indictable offenses, as well those which are in fact attended with force and violence, as those
which are only constructive breaches of the peace of the government, inasmuch as they violate its good order.
As far as American constitutional law is concerned, both Burdickand Willoughbycould use practically identical appraising such
immunity, the former stating that it is not now of great importance and the latter affirming that it is of little importance as arrest
of the person is now almost never authorized except for crimes which fall within the classes exempt from the priviledge. The
state of the American law on this point is aptly summarized by Cooley: By common parliamentary law, the members of the
legislature are privileged from arrest on civil process during the session of that body, and for a reasonable time before and after,
to enable them to go to and return from the same.A prosecution for a criminal offense, is thus excluded from this grant of
immunity. So it should be Philippine law, if deference were to be paid to what was explicitly agreed upon in the Constitutional
Convention.
2. Would it make a difference however in the availability of the writs ofcertiorarisought by petitioners considering that Article 145
of the Revised Penal Code would impose upon any public officer or employee who shall, while the Congress is in regular or
special session, arrest or charge any member thereof except in case such member has committed a crime punishable by
penalty higher thanprision mayor?The assumption here indulged is that the effect of the above in the Revised Penal Code was
to expand the grant of parliamentary immunity under the Philippine Autonomy Act, although its literal language does not go that
far. It is to be remembered, however, that it took effect on January 1, 1932 before the enforcement of the present Constitution in
1935. Considering that both under the then organic law, the Philippine Autonomy Act and equally so under the present
Constitution, such a more generous treatment accorded legislators exempting them from arrest even if warranted under a penal
law, the question as to whether it did survive becomes unavoidable. It is our opinion that the answer must be in the negative.
The Constitution is equally explicit on the following point: All laws of the Philippine Islands shall continue in force until the
inauguration of the Commonwealth of the Philippines; thereafter, such laws shall remain operative, unless inconsistent with this
Constitution until amended, altered, modified, or repealed by the Congress of the Philippines, and all references in such laws to
the government or officials of the Philippines shall be construed, in so far as applicable, to refer to the Government and
corresponding officials under this Constitution.InPeople v. Linsangandecided in December, 1935, barely a month after the
Constitution took effect, the continued applicability of Section 2718 of the Revised Administrative Code that would allow the
prosecution of a person who remains delinquent in the payment ofcedulatax,this Court, in its opinion thru the pen of the then
Justice, later Chief Justice, Abad Santos, after setting forth that the Constitution prohibits the imprisonment for debt on nonpayment of poll tax,held: It seems too clear to require demonstration that section 2718 of the Revised Administrative Code is
inconsistent with section 1, clause 12, of Article III of the Constitution in that, while the former authorizes imprisonment for nonpayment of the poll orcedulatax, the latter forbids it. It follows that upon the inauguration of the Government of the
Commonwealth, said section 2718 of the Revised Administrative Code became inoperative, and no judgment of conviction can
be based thereon.
So it was inDe los Santos v. MallareAgain under the provision of the Revised Administrative Code the President could remove at
pleasure any of the appointive officials under the Charter of the City of Baguio. Relying on such a provision, the then President
Quirino removed petitioner De los Santos who was appointed City Engineer Baguio of on July 16, 1946, and chose in his place
respondent Gil R. Mallare. The Revised Administrative Code was a legislation that dates back to 1917, eighteen years before the
Constitution prohibited any officer or employee in the civil service being removed or suspended except for cause as provided by
law.Again this Court, in the light of aforecited provision in an opinion of Justice Tuason, held: So, unlike legislation that is
passed in defiance of the Constitution, assertive and menacing, the questioned part of section 2545 of the Revised
Administrative Code does not need a positive declaration of nullity by the court to put it out of the way. To all intents and
purposes, it is non-existent, outlawed and eliminated from the statute book by the Constitution itself by express mandate before
the petitioner was appointed.In the language of the constitutional provision then that portion of Article 145 penalizing a public
official or employee who shall while the Congress is in regular or special session arrest or search any member thereof except in
case he has committed a crime punishable under the Revised Penal Code by a penalty higher thanprision mayoris declared
inoperative.
The above conclusion reached by this Court is bolstered and fortified by policy considerations. There is, to be sure, a full
recognition of the necessity to have members of Congress, and likewise delegates to the Constitutional Convention, entitled to
the utmost freedom to enable them to discharge their vital responsibilities, bowing to no other force except the dictates of their
conscience. Necessarily the utmost latitude in free speech should be accorded them. When it comes to freedom from arrest,
however, it would amount to the creation of a privileged class, without justification in reason, if notwithstanding their liability for a
criminal offense, they would be considered immune during their attendance in Congress and in going to and returning from the
same. There is likely to be no dissent from the proposition that a legislator or a delegate can perform his functions efficiently and
well, without the need for any transgression of the criminal law. Should such an unfortunate event come to pass, he is to be
treated like any other citizen considering that there is a strong public interest in seeing to it that crime should not go unpunished.
To the fear that may be expressed that the prosecuting arm of the government might unjustly go after legislators belonging to the
minority, it suffices to answer that precisely all the safeguards thrown around an accused by the Constitution, solicitous of the
rights of an individual, would constitute an obstacle to such an attempt at abuse of power. The presumption of course is that the
judiciary would main independent. It is trite to say that in each and every manifestation of judicial endeavor, such a virtue is of
the essence.
WHEREFORE, the petition forcertiorariandhabeas corpusby Delegate Manuel Martinez by Festin in L-34022 and the petitions
forcertiorariand prohibition by Delegate Fernando Bautista, Sr. in L-34046 and L-34047 are hereby dismissed. Without
pronouncement as to costs.

118
G.R. No. L-47771 March 11, 1978
PEDRO G. PERALTA, petitioner,
vs.
HON. COMMISSION ON ELECTIONS, HON. NATIONAL TREASURER, and KILUSANG BAGONG
LIPUNAN,respondents.
..et al
ANTONIO, J.:
These six (6) consolidated petitions pose for the determination of this Court the constitutionality of specific provisions of
the 1978 Election Code (Presidential Decree No. 1269).
The first issue posed for resolution is: Whether or not the voting system provided for in Sections 140 and 155,
subparagraphs 26 to 28, of the 1978 Election Code, granting to the voter the option to vote either for individual candidates
by filling in the proper spaces in the ballot the names of candidates he desires to elect, or to vote for all the candidates of
a political party, group or aggrupation by simply waiting in the space provided for in the ballot the name of the political
party, group or aggrupation, violates Section 1 of Article IV and Section 9(1) of article XII-C of the Constitution.
The specific provisions of the 1978 Election Code which are assailed as being in violation of the equal protection clause
are the following:
SEC. 140. Manner of preparing the ballot. The voter upon receiving his folded ballot shall forthwith proceed to
one of the empty voting booths and shall there fill his ballot by writing in the proper space for each office the name
of the candidate for whom he desires to vote: Provided, That in the election of regional representatives to
the interim Batasang Pambansa, the voter may choose to vote for individual candidates by filling in the proper
spaces of the ballot the names of candidates he desires to elect, but if for any reason he chooses to vote for all
the candidates of a political party, group or aggrupation, by writing in the space provided for in the ballot the name
of the political party, group or aggrupation: Provided further, That the ballots for the election of regional
representatives to theinterim Batasang Pambansa shall be prepared by the Commission in such manner that the
voter may vote for the straight ticket of a political party, group or aggrupation or for individual candidates, and for
this purpose, the ticket of a regularly organized political party, group or aggrupation as certified under oath by their
respective directorates or duly authorized representatives as wen as candidates not belonging to any particular
political party, group or aggrupation, shall be printed in the upper portion of said ballots in a manner which does
not give undue advantage to any political party, group or aggrupation or candidate, and there shall also be a
column containing blank spaces for the names of such candidates which spaces are to be filled by the voter who
does not desire to vote for a straight ticket: Provided, finally, That a candidate may be in the ticket of only one
political party, group or aggrupation; if he is included in the ticket of more than one political party, group or
aggrupation presenting different sets of candidates, he shall immediately inform the Commission as to which ticket
he chooses to be included, and if he fails to do so, he shall cease to be considered to belong to any ticket. The
following notice shall be printed on the ballot: "If you want to vote for all the official candidates of a political party,
group or aggrupation to the exclusion of all other candidates, write the name of such political party, group or
aggrupation in the space indicated. It shag then be unnecessary for you to write the names of Candidates you
vote for. On the other hand, if you want to vote for candidates belonging to different parties, groups or
aggrupations and/or for individual candidates, write in the respective blank spaces the names of the candidates
you vote for and the names written by you in the respective blank spaces in the ballot shall then be considered as
validly voted for.
xxx xxx xxx
SEC. 155. Rules for the appreciation of ballots. In the reading and appreciation of ballots, the committee shall
observe the following rules:
xxx xxx xxx
26. If a voter has written in the proper space of the ballot the name of a political party, group or aggrupation which
has nominated official candidates, a vote shall be counted for each of the official candidates of such party, group
or aggrupation.
27. If a voter has written in the proper space of the ballot the name of a political party, group or aggrupation which
has nominated official candidates and the names of individual candidates belonging to the ticket of the same
political party, group or aggrupation in the spaces provided therefor, a vote shall be counted for each of the official
candidates of such party, group or aggrupation and the votes for the individual candidates written on the ballot
shall be considered as stray votes.
28. If a voter has written in the proper space of his ballot the name of a political party, group or aggrupation which
has nominated official candidates and the names of individual candidates not belonging to the ticket of the same
political party, group or aggrupation in the spaces provided therefor, an of the votes indicated in the ballot shall be
considered as stray votes and shall not be counted. Provided, however, That if the number of candidates
nominated by the political party, group or aggrupation written by the voter in the ballot is less than the number of

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seats to be filled in the election and the voter also writes the names of individual candidates in the spaces
provided therefor not belonging to the ticket of the political party, group or aggrupation he has written in the ballot,
the ballot shall be counted as votes in favor of the candidates of the political party, group or aggrupation
concerned and the individual candidates whose names were firstly written by the voter in the spaces provided
therefor, until the authorized number of seats is fined.
The system which allows straight party voting is not unique in the Philippine experience. As early as 1941, the Second
National Assembly of the Philippines enacted Commonwealth Act No. 666, entitled "An Act to Provide for the First Election
for President and Vice-President of the Philippines, Senators, and Members of the House of Representatives, Under the
Constitution and the Amendments Thereof." Said Commonwealth Act enabled the voter to vote for individual candidates or
for a straight party ticket by writing either the names of the candidates of his choice or of the political party he favored on
designated blank spaces on the ballot. 1
While the original Election Code, Commonwealth Act No. 357, dated August 22, 1938, did not carry provisions for optional
straight party voting, 2 the system was, however, substantially reinstituted in Republic Act No. 180, or the Revised Election
Code, enacted on June 21, 1947. 3 The only im portent difference introduced was that in appreciating ballots on which the
voter had written both the name of a political party and the names of candidates not members of said party, Republic Act
No. 180 provided that the individual candidates whose names were written shall be considered voted for, 4 whereas
Commonwealth Act No. 666 provided that the vote shall be counted in favor of the political party. 5
Likewise, it should be noted that in other jurisdictions, ballots providing for optional straight party voting have been
accepted as a standard form, in addition to the "office-block" ballots in which all candidates for each office grouped
together. Among the different states of the United States, for example, the following has been observed:
The party-column ballot, used in about 30 states, is sometimes called the Indiana-type ballot because the Indiana
law of 1889 has served as a model for other states. In most states using the party column ballot, it is possible to
vote for the candidates of a single party for all offices by making a single cross in the circle at the head of the
column containing the party's candidates. In some states, the party emblem is carried at the top of its column, a
feature which, in less literate days, was of some utility in guiding the voter to the right column on the ballot. To vote
a split ticket on a party-column ballot usually requires the recording of a choice for each office, path the voter will
presumably hesitate to follow when he has the alternative of making a single crossmark. Professional party
workers generally favor the use of the party-column ballot because it encourages straight ticket voting. ...
In contrast with the party-column ballot is the office-block ballot, or, as it is sometimes called by virtue of its origin,
the Massachussetts ballot. Names of all candidates, by whatever party nominated, for each office are grouped
together on the office-block ballot, usually with an indication alongside each name of the party affiliation. The
supposition is that the voter will be compelled to consider separately the candidates for each ballot, in contrast
with the encouragement given to straight-ticket voting by the party column ballot. Pennsylvania uses a variation of
the office-block ballot: the candidates are grouped according to office but provision is made for straight-ticket
voting by a single mark. 6
Election laws providing for the Indiana-type ballot, as aforementioned, have been held constitutional as against the
contention that they interfere with the freedom and equality of elections. Thus, in Oughton, et al. v. Black, et al., 7assailed
as unconstitutional was a statutory proviso which required that ballots should be printed with the following instructions: "To
vote a straight party ticket, mark a cross (x) in the square opposite the name of the party of your choice, in the first
column. a crossmark in the square opposite the name of any candidate indicates a vote for that candidate."
It was contended that such provision interferes with the freedom and equality of elections, and authorizes a method of
voting for political parties and not 'or men. It was alleged that the special privilege given to straight ticket voters and denied
to others injured appellants, who, as candidates, were opposed by other candidates who can much more easily be voted
for. In resolving such question and declaring the law valid, the Supreme Court of Pennsylvania held that the "free and
equal exercises of the elective franchise by every elector is not impaired by the statute, but simply regulated. The
regulation is for the convenience of the electors. The constitutionality of the law is not to be tested by the fact that one
voter can cast his ballot by making one mark while another may be required to make two or more to express his will.
When each has been afforded the opportunity and been provided with reasonable facilities to vote, the Constitution, and
lies in the sound discretion of the Legislature." 8
The Pennsylvania Court further emphasized that elections are equal when the vote of every candidate is equal in its
influence on the result, to the vote of every candidate; when each ballot is as effective as every other ballot. 9
To the same effect is the holding in Ritchie v. Richards, which sustained the validity of a statute containing a similar
provisional. 10
At any rate, voting by party has been accepted in various states as a form of democratic electoral process. In Israel, for
example, where the election system is one of proportional representation in which each political party presents a list of
candidates to the citizenry, the voter selects a party, not a candidate, and each party is then represented in the Knesset in
proportion to its strength on the polls. The head of the largest party is asked to form a government. 11 In France, on the
other hand, under the electoral law of October 5, 1946, providing for the selection of National Assembly members, a list
system of proportional representation was set up, whereby each electoral area elected several candidates in proportion to
its voting strength. The voter was required to vote only for one party list; he could not split his vote among several
candidates on different party lists, but could depart from the order of preference set up by the party. Commissioners then

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count the ballots for each party list and distribute the total number of seats among the different successful parties. 12 In
Italy and West Germany, party voting is likewise in practice, and proportional representation seats are distributed on the
basis of the number of votes received by the successful parties.
Petitioners in the cases at bar invoke the constitutional mandate that no person shag be denied the equal protection of the
laws (Article IV, Section 1) and the provision that "bona fide candidates for any public office shall be free from any form of
harassment or discrimination" (Article XII-C, Section 9[l]). The word "discrmination" in the latter provision should be
construed in relation to the equal protection clause and in the manner and degree in which it is taken therein, since said
provision "is in line with the provision of the Bill of Rights that no 'person shall be denied the equal protection of the laws'
". 13
The main objection of petitioners against the optional straight party' voting provided for in the Code is that an independent
candidate would be discriminated against because by merely writing on his ballot the name of a political party, a voter
would have voted for all the candidates of that party, an advantage which the independent candidate does not enjoy. In
effect, it discontended that the candidate who is not a party member is deprived of the equal protection of the laws, as
provided in Section 1 of Article IV, in relation to Section 9 of Article XII, of the Constitution.
The equal protection clause does not forbid all legal classifications. What is proscribes is a classification which is arbitrary
and unreasonable. It is not violated by a reasonable classification based upon substantial distinctions, where the
classification is germane to the purpose of the law and applies equally to all those belonging to the same class. 14 The
equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if
it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who
fall within the class and those who do not. 15 There is, of course, no concise or easy answer as to what an arbitrary
classification is. No definite rule has been or can be laid down on the basis of which such question may be resolved. The
determination must be made in accordance with the facts presented by the particular case. The general rule, which is
well-settled by the authorities, is that a classification, to be valid, must rest upon material differences between the persons,
activities or things included and those excluded.' There must, in other words, be a basis for distinction. Furthermore, such
classification must be germane and pertinent to the purpose of the law. And, finally, the basis of classification must, in
general, be so drawn that those who stand in substantially the same position with respect to the law are treated alike. It is,
however, conceded that it is almost impossible in some matters to foresee and provide for every imaginable and
exceptional case. Exactness in division is impossible and never looked for in applying the legal test. All that is required is
that there must be, in general, some reasonable basis on general lines for the division. 16
Classification which has some reasonable basis does not offend the equal protection clause merely because it is not
made with mathematical nicety. 17
In the cases at bar, the assailed classification springs from the alleged differential treatment afforded to candidates who
are party members as against those who run as independents. It must be emphasized in the election law must carry the
burden of showing that it does not rest upon a reasonable basis, but is essentially arbitrary. 18 The factual foundation to
demonstrate invalidity must be established by the litigant challenging its constitutionality. 19 These principles are
predicated upon the presumption in favor of constitutionality.
This has to be so because of "the fundamental criteria in cases of this nature that all reasonable doubts should be
resolved in favor of the constitutionality of a statute. An act of the legislature, approved by the executive, is presumed to
be within constitutional limitations. The responsibility of upholding the Constitution rests not on the courts alone but on the
legislature as well. The question of the validity of every statute is first determined by the legislative department of the
government itself. 20
Thus, to justify the nullification of a law, there must be "a clear and unequivocal breach of the Constitution, not a doubtful
and argumentative implication." 21 There is practical unanimity among the courts in the pronouncement "that laws shag not
be declared invalid unless the conflict with the Constitution is clear beyond a reasonable doubt. 22
We shall now test the validity of petitioners' arguments on the basis of these principles.
In the challenged provision of the electoral law, unlike the previous block- voting statutes, all the names of the candidates,
whether of parties, groups or independent candidates, are printed on the ballot. Before he prepares his ballot, the voter
will be able to read all the names of the candidates. No candidate will receive more than one vote, whether he is voted
individually or as a candidate of a party group or aggrupation. The voter is free to vote for the individual candidates or to
vote by party, group or aggrupation. The choice is His. No one can compel him to do otherwise. In the case of candidates,
the decision on whether to run as an independent candidate or to join a political party, group or aggrupation is left entirely
to their discretion. Certainly, before filing his certificate of candidacy, a candidate is aware of the advantages under the law
accruing to candidates of a political party or group. If he wishes to avail hihiself of such alleged advantages as an official
candidate of a party, he is free to do so by joining a political party group or aggrupation. In other words, the choice is his.
In making his decision, it must be assumed that the candidate had carefully weighed and considered the relative
advantages and disavantages of either alternative. So long as the application of the rule depends on his voluntary action
or decision, he cannot, after exercising his discretion, claim that he was the victim of discrimination.
In the ordinary course of things, those who join or become members of associations, such as political parties or any other
lawful groups or organizations, necessarily enjoy certain benefits and privileges which are incident to, or are
consequences of such membership. Freedom of association has been enshrined in the Constitution to enable individuals
to join others of like persuasion to pursue common objectives and to engage in lawful activities. Membership in

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associations is considered as an extension of individual freedom. Effective advocacy of both public and private views or
opinions is undeniably enhanced by group association. Freedom to engage in associations for the advancement of beliefs
and Ideas is, therefore, an inseparable aspect of the liberty guaranteed by the fundamental law. Therefore, if, as an
incident of joining a political party, group or aggrupation, the candidate is given certain privileges, this is constitutionally
Permissible. Thus, under the provisions of the previous election laws, only the parties who polled the largest and the next
largest number of votes in the last preceding presidential elections were entitled to representation in the Board of Election
Inspectors. 23 Independent candidates had no representation in the Board; and yet it was never contended that the
independent candidates were denied the equal protection of the laws.
The official candidates of an organized political party may be distinguished from an independent candidate. The former
are bound by the party's rules. They owe loyalty to the party, its tenets, its policies, its platform and programmes of
government. To the electorate, they represent the party, its principles, ideals and objectives. This is not true of an
independent candidate. If the electoral law has bias in favor of political parties, it is because political parties constitute a
basic element of the democractic institutional apparatus. Government derives its strength from the support, activity or
passive, of a coalition of elements of society. In modern nines the political party has become the instrument for the
organization of societies. This is predicated on the doctrine that government exists with the consent of the governed.
Political parties per. form an "essential function in the management of succession to power, as well as in the process of
obtaining popular consent to the course of public policy. They amass sufficient support to buttress the authority of
governments; or, on the contrary, they attract or organize discontent and dissatisfaction sufficient to oust the government.
In either case they perform the function of the articulation of the interests and aspirations of a substantial segment of the
citizenry, usually in ways contended to be promotive of the national weal." 24
The Constitution establishes a parliamentary system of government. Such a system implies the existence of responsible
political parties with distinct programmes of government.
The parliamentary system works best when party distinctions are well defined by differences in principle. As observed by a
noted authority on political law, under a parliamentary system; "the maintenance and development party system becomes
not only necessary but indispensable for the enforcement of the idea and the rule of government responsibility and
accountability to the people in the political management of the country." 25 Indeed, the extent to which political parties can
become effective instruments of self-government depends, in the final analysis, on the degree of the citizens' competence
in politics and their willingness to contribute political resources to the parties.
It is also contended that the system of optional straight party voting is anathema to free, orderly and honest elections or
that it encourages laziness or political irresponsibility. These are objections that go to the wisdom of the statute. It is well to
remember that this Court does not pass upon questions of wisdom or expediency of legislation. We have reiterated in a
previous case that: "It is ... settled ... that only congressional power or competence, not the wisdom of the action taken,
may be the basis for declaring a statute invalid." 26 This notwithstanding, We deem it necessary, for the information of
everyone concerned, to explain why such fears, in a growing climate of political maturity and social responsibility appear
conjectural.
There are no data to show that the system herein assailed was the proximate cause of all the frauds in the 1941, 1947
and 1949 elections. Besides, all procedures or manners of voting are susceptible to fraud. The important thing to consider
is that the 1978 Election Code is replete with new provisions designed to guarantee the sanctity and secrecy of the
people's vote.
As demonstrated in the experience of other democratic states, such a system has its advantages. It may enable deserving
young candidates but without adequate financial resources of their own to win, with party support, in countrywide or
regional elections. Since candidates of a party or group may pool their resources, it will tend to make elections less
expensive. As this system of voting favors the strongly organized parties or groups, it tends to prevent the proliferation of
political parties or groups. It thus results in the formation of stable and responsible political parties. On the part of the
electorate, such a system of voting facilitates the exercise of their right of suffrage. It enables the laborer, the farmer and
the voter of ordinary education to vote with greater facility for all the official candidates of the party of his choice. It thus
broadens the ways and means by which the sovereign will can be expressed.
Nor could it be true, as petitioners contend, that a system which allows straight ticket voting encourages laziness and
political irresponsibility. While there may be those who may be moved to vote straight party by reason of lack of interest,
nevertheless, there are still those sufficiently interested to cast an intelligent vote. It has been observed that in a straight
ticket the motivated voter is more likely to organize his ballot in a highly structure pattern. His motivation may derive from
an interest in parties, candidates, or issues or any combination of those. As observed by a survey research group:
"Motivated straight ticket voting appears to reflect an intention on the part of the voter to accomplish his political purpose
as fully as possible. Such a voter does not scatter his choices casually, he has a political direction in mind and he
implements it through the choice of one party or the other on the ballot. The more highly motivated he is toward this
political objective, the less willing he is to dilute his vote by crossing party lines." 27
II
The second issue before Us is: Whether or not the provisions of Sections 11, 12 and 14 of the 1978 Election Code, which
authorize the elections of the members of the interim Batasang Pambansa by regions, violate Section 2 of Article VIII of
the Constitution which provides that the members of the National Assembly shall be apportioned among the provinces,
representative districts and cities.

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Assailed as unconstitutional are the following provisions of the 1978 Election Code:
SEC. 11. Composition. The interim Batasang Pambansa shall be composed of the incumbent President of the
Philippines, representatives elected from the different regions of the nation, those who shag not be less than
eighteen years of age elected by their respective sectors, and those chosen by the incumbent President from the
members of the Cabinet."
SEC. 12. Apportionment of regional representatives. There shall be 160 regional representatives to the interim
Batasang Pambansa apportioned among the thirteen regions of the nation in accordance with the number of their
respective inhabitants and on the basis of a uniform and progressive ratio ... :
xxx xxx xxx
The foregoing apportionment shall be not considered a precedent in connection with the re-apportionment of
representative districts for the regular National Assembly under Section 2, Article VIII and Section 6, Article XVI I
of the Constitution.
Notwithstanding the foregoing provisions, the number of regional representative for any region shall not be less
than the number of representative districts therein existing at the time of the ratification of the Constitution. There
are also allotted two additional seats for regional representatives to Region IV in view of inhabitants, such as
students, in the region not taken into account in the 1975 census.
SEC. 14. Voting by region. Each region shall be entitled to such number of regional representatives as are
allotted to it in Section 12 of Article II hereof. All candidates for region representatives shall be voted upon at large
by the registered voters of their respective regions. The candidates receiving the highest number of votes from the
entire region shall be declared elected.
The constitutional provision relied upon is Section 2 of Article VIII, which provides:
SEC. 2. The National Assembly shall be composed of as many Members as may be provided by law to be
apportioned among the provinces, representative districts and cities in accordance with the number of their
respective inhabitants and on the basis of a uniform and progressive ratio. Each district shall Comprise, as far as
practicable, contiguous, compact, and adjacent territory. Representative districts or provinces already created or
existing at the time of the ratification of this Constitution shag have at least one Member each.
In resolving the issue, the provisions of Amendment No. 1 to the Constitution, which took effect on October 27, 1976,
should be considered and not, as pointed out by petitioner Juan T. David, those of Section 2 of Article VIII of the
Constitution, which deal with the composition of the regular National Assembly.
It should be recalled that under the term of the Transitory Provisions of the Constitution, 28 the membership of
theinterim National Assembly would consists of the Incumbent President and Vice-President, the Senators and the
Representatives of the old Congress and the Delegates to the Constitutional Convention who have opted to serve therein.
The Filipino people rejected the convening of the interim National Assembly, and for a perfectly justifiable reason.
By September of 1976, the consensus had emerged for a referendum partaking of the character of a plebiscite which
would be held to establish the solid foundation for the next step towards normalizing the political process. By the will of the
people, as expressed overwhelmingly in the plebiscite of October 15 and 16, 1976, Amendments Nos. 1 to 9 were
approved, abolishing the interim National Assembly and creating in its stead an interim Batasang Pambansa. T was
intended as a preparatory and experimental step toward the establishment of full parliamentary government as provided
for in the Constitution.
Amendment No. 1 provides:
1. There shall be, in lieu of the interim National Assembly, an interim Batasang Pambansa, Members of
the interim Batasang Pambansa, which shall not be more than 120, unless otherwise provided by law, shall
include the incumbent President of the Philippines, representatives elected from the different regions of the
nation, those who shall not be less than eighteen years of age elected by their respective sectors, and those
chosen by the incumbent President from the Members of the Cabinet.Regional representatives shall be
apportioned among the regions in accordance with the number of their respective inhabitants and on the basis of
a uniform and progressive ratio, while the sectors shall be determined by law. The number of representatives from
each region or sector and the manner of their election shall be prescribed and regulated by law. (Emphasis
supplied.)
The provisions of the Above Amendment are clear. Instead of providing that representation in the interimBatasang
Pambansa shall be by representative districts, it specifically provides that; (1) the representatives shall be elected from the
different regions of the nation; and (2) the "Regional representatives shall be apportioned among the regions in
accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio while the
sector shall be determined by law. " No mention whatsoever is made of 4 provinces, representative districts and cities".
Where the intent is to relate to the regular National Assembly, the Constitution made it clear and manifest, as indicated in
Amendment No. 2 of the Constitution. 29 It is significant to note that nowhere in the said amendment is it provided that the

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members of the interim Batasang Pambansa shall be apportioned among the representative districts, in the same manner
as the regular National Assembly. The clear import and intent of the Constitutional Amendment is, therefore, the election of
the representatives from the different regions of the nation, and such regional representatives shall be alloted or
distributed among the regions in accordance with the number of their respective inhabitants and on the basis of a uniform
and progressive ratio. Neither does the Amendment provide that the members of the interim Batasang Pambansa "shall
be elected by the qualified electors in their respective district for term of six years ..." as provided in Section 3[l] of Article
VIII of the Constitution. To hold that Section 3[l] of Article VIII is applicable to the interim Batasang Pambansa would lead
to the conclusion that the members of the Batasan shall have a term of six years, which is of course inconsistent with its
transitory character. That the interim Batasang Pambansa is a distinct and special body, which, by reason of its transitory
nature should be governed by specifically formulated rules, is apparent from the constitutional amendment which created
it. Thus, its membership "shall not be more than 120, unless otherwise provided by law." Furthermore, it "shall include the
incumbent President of the Philippines, representatives elected from the different regions of the nation, those who shall
not be less than eighteen years of age elected by their respective sectors, and those chosen by the incumbent President
from the Members of the Cabinet." The regular National Assembly, on the other hand, is limited in its membership to
representatives to be apportioned among the provinces, representative districts and cities. By reason of its provisional
character, the interim Batasang Pambansa has to be more flexible, both in its representation and the manner of election of
its members. There is no denying the fact that as wide a range of representation as possible is required in order to hasten
the nation's return to normalcy. It is for t reason that sectors are given adequate representation 30 and are considered as
"national aggrupations. " Elections of sectoral representatives are specially provided for in the 1978 Election Code. 31 It
should be emphasized that the regular National Assembly is distinct and different in composition, powers and manner of
elections of its members from the interim Batasang Pambansa is to function during the period of transition while the
regular National Assembly is to operate upon the restoration of normalcy.
The composition of the interim Batasang Pambansa is indeed experimental. It is an experiment in size, form and
distribution of constituencies in the hope of securing a legislature most truly representative of the views of the electorate. It
would, therefore, be ludicrous to confine the members of such body within the strictures of the representative districts of
the regular National Assembly. The fear of petitioner Juan T. David that several representative districts will be deprived of
representation misconstrues the concept of regional elections. The representatives are to be elected by the voters of the
entire region. They will represent the whole region and not merely its integral provinces, districts or cities. Moreover,
Section 12 of the Code ensures that there shall be sufficient representatives for each region by providing that "the number
of regional representatives for any region shall not be less than the number of representative districts therein existing at
the time of the ratification of the Constitution."
III
The following two issues raised by petitioners are interrelated and must be jointly discussed herein. They are:
(a) Whether or not the Kilusang Bagong Lipunan (KBL) and the Lakas ng Bayan (LABAN) may be registered and
accredited as political parties under Section 8 of Article XII-C of the Constitution, so that their respective
candidates for membership in the interim Batasang Pambansa may be voted for as a group under the 1978
Election Code; and
(b) Whether or not members of a political party in the l971 elections may run under the ticket sponsored by any
other party, group or aggrupation, considering the provisions of Section 10 of Article XII-C of the Constitution
which prohibition candidates for any elective public office from changing party affiliation within six months s
immediately preceding or following an election
The resolution of the foregoing issues calls for the determination of the constitutionality of Section 199 of the 1978
Election Code, questioned by petitioners. Said section provides:
SEC. 199. Registration of political parties. Pending the promulgation of rules and regulations to govern the
registration and accreditation of political parties by the Commission in accordance with Article XII[C] of the
Constitution, the registration with the Commission previous to 1972 of the Nacionalista Party, Liberal Party,
Citizens' Party, and other national parties shall be deemed to continue and they may, upon notice to the
Commission through their respective presidents or duly authorized representatives, amend or change their
names, constitutions, by-laws, or other organizational papers, platfor, officers and members, and shag be entitled
to nominate and support their respective candidates for representatives in the interim Batasang Pambansa.
Similarly, any other group of persons pursuing the same political Ideals in government may register with the
Commission and be entitled to the same rights and privileges.
Invoked by petitioner are Sections 8 and 10 of Article XII-C of the Constitution, which provide:
SEC. 8. A political party shall be entitled to accreditation by the Commission if, in the immediately preceding
election, such party has obtained at least the third highest number of votes cast in the constituency to which it
seeks accreditation. No religious sect shall be registered as political party, and no political party which seeks to
achieve its goals through violence or subversion shall be entitled to accreditation.
SEC. 10. No elective public officer may change political party affiliation during term of office, and no candidate for
any elective public office may change political party affiliation within six months immediately preceding g or
following an election.

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It should be recalled that the object of the afore-quoted provisions of the Constitution was to develop a third party and
break the heretofore dominant hold on the political system by the two major political parties which have been in existence
since the birth of the republic. These two major parties were considered as "in fact a one party system with two factions
openly disagreeing on fringe issues but tacitly united by one common aim: alternate monopoly of power through a pattern
of patronage politics." 32 The framers of the Constitution examined the weaknesses of the party system and saw the need
"for discarding the old party system as a political farce that has been largely responsible for many of the country's
ills ...". 33 They envisioned, therefore, a new era in Philippine politics, where elections were to be decided on issues rather
than on personalities, and where the electoral process was to be free, less expensive government depends on an
organized and vigorous citizenry. Such can only exist if citizens can increase their effectiveness in politics by modernizing
and using political parties to set the general directions of public policy and to influence the specific decisions of public
institutions that affect their daily lives.
It was intended, however, that some of these provisions would not operate during the interim period. Thus, from the
wording of Section 8, it is obvious that said section is incapable of application during the first election because it states
that no political party shall be entitled to accreditation unless in the immediately preceding election, it obtained at least the
third highest number of votes cast in the constituency to which it seeks accreditation. That there cannot be any
accreditation during the first election under the 1973 Constitution is evident from the sponsorship speech of the proponent
of t constitutional provision. 34
Although their members are united by common policies and principles of government and apparently impelled by the
same political Ideals, neither the Kilusang Bagong Lipunan (KBL) nor the Lakas ng Bayan (LABAN) professes to be a
political party in the sense of a stable organization with a degree of permanence, imposing strict discipline among the
members, and with a party platform drafted and ratified in a party convention. It does not follow, however, that the KBL and
LABAN are not political parties, in a generic sense, since a political party has been generally defined as "an association of
voters believing in certain principles of government, formed to urge the adoption and execution of such principles in
governmental affairs through officers of like belief." 35. Political parties "result from the voluntary association of electors,
and do not exist by operation of law. The element of time is not essential to the formation of a legal party; it may spring
into existence from the exigencies of a particular election, and with no intention of continuing after the exigency has
passed." 36 As a matter of fact, it is only the Kilusang Bagong Lipunan (KBL) and the Lakas ng Bayan (LABAN) that have
polarized the major differences on vital public issues affecting the nation. And, during t first election in t period of transition
when, obviously, no political party can be accredited, does the Constitution, in Article XII-C, Sections 2[5] and 8
limit registration to political parties as strictly understood by withholding it from aggrupations of persons pursuing the same
political Ideals of government as provided in Section 199 of the 1978 Election Code? It clearly does not. The listing of
political parties appears to have a dual aspect registration and accreditation Registration is a means by which the
government is enabled to supervise and regulate the activities of various elements participating in an election.
It would appear from Section 8 of Article XII-C that the only groups which cannot be registered are: (a) religious groups or
sects; and (b) those political parties or groups who seek "to achieve its goals through violence and subversion".
Accreditation is the means by which the registration requirement is made effective by conferring benefits to registered
political parties. The condition for accreditation, aside from those mentioned, is that the political party must have obtained,
in the immediately preceding election, at least "the third highest number of votes cast in the constituency to which it seeks
accreditation. " The Constitution, however, does not state what are the effects of accreditation. There is, therefore,
necessity for legislation. Moreover, to construe the term "political party" restrictively would delimit the supervisory authority
of the Commission on Elections. More specifically, it would exempt aggrupations or other political groups from certain
requirements. Under Section 199, the 1978 Election Code allows the registration of aggrupations or groups of persons
"pursuing the same political Ideals in government"; consequently, they are subjected to the regulation of propaganda
materials (Sec. 41) and the limitation of expenses for candidates (Sec. 52).
From another point of view, a narrow construction may discourage the robust exercise of the right of association
guaranteed by the Bill of Rights, which at t stage of our political tory appears, necessary.
The facts that the coming polls will be the first that we shall hold since the proclamation of martial law on September 21,
1972 makes it an event of no ordinary significance. "The Filipino society has outgrown its age of innocence. Today the
acts of Filipino politicians must be judged by more mature standards and the test of national allegiance has become more
strict and more demanding, even more binding." 37 By t election, we shall inaugurate a new stage in our political life, and
commence our fateful transition from crisis government to a parliamentary system.
But as President Ferdinand E. Marcos has significantly observed:
... this step, I repeat, is no mere restoration of electoral processes and representative government. The coming
elections would be a perilous exercise indeed if they would merely return us to elections and representative
institutions as we had known them in the past, and compromise what had taken us so much time and effort to
construct over the last five years.
What we envision in t initiative is the permanence and continuity of the refor that we have launched under the
aegis of crisis government. We envision in it the full emergence of a new political order that will give life and
sustenance to our national vision of a new society. And it will have permanence and continuity because by the
grace of suffrage and representative government, we shag thereby attain a formal mechanism for the exercise of
participation and involvement by our people in nation-building and national development. 38
It is, therefore, necessary at t stage to encourage the emergence or growth of political parties that will truly reflect the

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opinions and aspirations of our people. The right of individuals to form associations as guaranteed by the fundamental
law, includes the freedom to associate or refrain from association. 39 In accord with t constitutional precept, it is recognized
that no man is compelled by law to become a member of a political party, or, after having become such, to remain a
member. 40
The existence of responsible political parties with distinct programs of government is essential to the effectiveness of a
parliamentary system of government. It is in recognition of t fact that Section 199 of the 1978 Election Code allows or
sanctions the registration of groups of persons "pursuing the same political ideals in government" with the Commission on
Elections. Moreover, to what extent the rights of organized political parties should be regulated by law is a matter of public
policy to be determined by the lawmaker a matter which does not concern the courts. 41
T brings us to the next point raised by petitioners, namely, that under Section 10 of Article XII-C of the Constitution, no
candidate for elective office may change party affiliation within six months immediately preceding or following an election.
In the cases at bar, We understand that no candidate voluntarily changed party affiliation. On the contrary, the claim that
the KBL and the LABAN are not political parties" is based partly on the fact that the candidates running under their
banners have retained their party affiliation. Section 10 is a statement of a basic principle against political opportunism. To
begin with, no legislation has been enacted to implement t constitutional prohibition. Indeed, it is difficult to conceive how
the courts may apply the prohibition, in all the varied facts and circutances under which it may be invoked, without the aid
of supplementary legislation. For instance, the provision in question states that no elective public officer may change
political party affiliation during term of office. Suppose an elected representative in the legislature, belonging to one party,
shall always vote and side with another political party. Will he be considered a "turncoat" even if he does not formally
change party affiliation? Suppose it be decided that he is a "turncoat". What sanctions should be adopted? Should he be
suspended or ousted from the legislature?
When one turns to political candidates, the same questions as to what should be considered "political opportunism" or
"turncoatism" will be encountered. But the problem of procedure for hearing and deciding infringements of the prohibition
or the determination of the appropriate sanction becomes more acute. Is the sanction to be found in the refusal by the
Commission on Elections to register the party or group, or in the denial of certificate of candidacy, or are there other
ways? Should political parties be prevented from "adopting" candidates? Or from forming coalitions?
All of these are questions of policy, in resolving winch many immensurable factors have to be considered. The afore-cited
constitutional provisions are commands to the legislature to enact laws to carry out the constitutional purpose. They are,
therefore, addressed initially to the lawmaking department of the government. It is not part of the judicial department to
deal with such questions without their authoritative solutions by the legislative department. It may be relevant to
emphasize here that the jurisdiction of t Court is "limited to cases and controversies, presented in such form, with adverse
litigants, that the judicial power is capable of acting upon them, and pronouncing and carrying into effect a judgment
between the parties, and does not extend to the determination of abstract questions or issues framed for the purpose of
invoking the advice of the court without real parties or a real case." 42
In any event, We cannot perceive how such constitutional prohibition could be applied in t first election. Precisely, the
overriding constitutional purpose is to remove the dominant hold of the two major political parties and encourage the
formation of new political parties. The intention is not to rebuild old party coalitions but to define new political means and
instruments, within the parties or beyond them, that will allow the Filipino people to express their deeper concerns and
aspirations through popular government.
IV
The fourth issue is: whether or not the forty-five-day period of campaign prescribed in the 1978 Election Code violates the
Constitution because. (a) it was decreed by the President and not by the Commission on Elections as provided by Section
6 of Article XII-C; and (b) the period should cover at least ninety (90) days.
Petitioners question the constitutionality of Section 4 of the 1978 Election Code, which provides:
SEC. 4. Election and campaign periods. The election period shall be fixed by the Commission on Elections in
accordance with Section 6, Article XII-C of the Constitution. The period of campaign shall not be more than fortyfive days immediately preceding the election, excluding the day before and the day of the election: Provided, That
for the election of representatives to the interim Batasang Pambansa, the period of campaign shall commence on
February 17, 1978 except that no election campaign or partisan political activity may be conducted on March 23
and 24, 1978.
In support of the allegation of unconstitutionality, petitioners rely on Section 6 of Article XII-C of the Constitution, thus:
SEC. 6. Unless otherwise fixed by the Commission in special cases, the election period shall commence ninety
days before the day of election and shall end thirty days thereafter.
At the outset, it should be considered that Amendment No. 1 provides that the "number of representatives from each
region and the manner of their election shall be prescribed and regulated by law " (emphasis supplied). Under
Amendment No. 5, "the incumbent President shall continue to exercise legislative powers until martial law shall have been
lifted." The power conferred by these Amendment upon the lawmaker necessarily included the authority to prescribe the
date and procedure for the holding of such elections. It should be borne in mind that the forthcoming election for members
in the interim Batasang Pambansa will be a special election during a regime of martial law. It is, therefore, an election in a

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state of emergency. The exigencies of the situation require that it be governed by special rules. At t point, the objective is
to hasten the normalization of government and, at the same time, to ensure that the nation is not exposed to the same
critical proble that necessitated the declaration of martial law. In conferring upon the incumbent President the authority to
determine the date of the election, those who drafted the Amendments must have realized that it is only the incumbent
President who has the authority and the means of obtaining, through the various facilities in the civil and military agencies
of the government, information on the peace and order condition of the country, and to determine the period within which
an electoral campaign may be adequately conducted in all the regions of the nation. Thus, the 1978 Election Code was
formulated to meet a special need, and t is emphasized by the fact that the Code itself limits its application. 43
Even assuming that it should be the Commission on Elections that should fix the period for campaign, the constitutional
mandate is complied with by the fact that the Commission on Elections has adopted and is enforcing the period fixed in
Section 4, Article I of the 1978 Election Code.
At any rate, insofar as objections to the fixing of the campaign period for elections in general are concerned, it is apparent
that there is a distinction between the ter "election period" and "campaign period". Thus, Section 4, Article I of the 1978
Election Code provides that the "election period shag be fixed by the Commission on Elections in accordance with Section
6, Article XII (C) of the Constitution." The "campaign period", however, has been fixed so that "it shall not be more than
forty-five days immediately preceding the election: Provided, That for the election of representatives to
the interim Batasang Pambansa, the period of campaign shag commence on February 17, 1978 except that no election
campaign or partisan political activity may be conducted on March 23 and 24, 1978." The distinction is further made
apparent by the fact that the "election period" under Section 5 of Article XII-C of the Constitution extends even beyond the
day of the election itself, while the "campaign period", by reason of its nature and purpose, must necessarily be before the
elections are held. There is, therefore, no conflict with the constitutional provision.
At t juncture, it may be relevant to note the efforts of the Commission on Elections to give more substance and meaning to
the intent and spirit of the Constitution and the 1978 Election Code by giving the same practicable opportunities to
candidates, groups or parties involved in the April 7, 1978 interim Batasang Pambansa elections. Thus, in Resolution No.
1289, the COMELEC removed the so-called undue advantage which the Nacionalista Party and the Kilusang Bagong
Lipunan (KBL) had over the Lakas ng Bayan (LABAN) in ter of authorized election expenses, appointment of election
watchers and use of print and broadcast media. T circutance, contrary to the clai of petitioners, shows that the
Commission on Elections, as a constitutional body charged with the enforcement and administration of all laws relative to
the conduct of elections, and with broad powers, functions and duties under the 1973 Constitution, can give candidates,
irrespective of parties, equal opportunities under equal circutances.
WHEREFORE, in view of the foregoing, the instant petitions are hereby DISMISSED, without costs.
Castro, C.J., Makasiar, Aquino, Concepcion, Jr., Santos, Fernandez, and Guerrero, JJ., concur.
Separate Opinions
BARREDO, J., concurring:
I concur in the disposition of all the petitions in these six cases made in the scholarly main opinion of Mr. Justice Antonio. I
just want to articulate a few thoughts I have about the matters therein involved which I deem relevant, appropriate and
timely.
To begin with, I wish to make it clear that the series of interpretations I made during the hearings which might have
created the impression that I am not in agreement with the defenses interposed and ably discussed by the Solicitor
General were really intended to test whether or not what appeared seared to me to be vulnerable points in the position of
the Government had any rational explanation.
-1Actually, I have my misgivings about the propriety of blockvoting, and I wanted to be sure that in formulating my judgment,
I am not influenced more by its allegedly being unfair and laden with potentialities of fraud rather than its demonstrated
inconsistency with any provision of the charter or of any established constitutional principle. I fully realize that as a
member of the Court, my vote here must be based on indubitable unconstitutionality. At the same time, as a Filipino, I
have been entertaining the feeling that perhaps, in t particular stage of our transition from the old political traditions to the
Idealistic concepts of the New Society, there could be enough justification to disregard the strict rule that
unconstitutionality must be based only on manifest and indubitable collision between a questioned legislation or actuation,
on the one hand, and the provisions of the Constitution, on the other. I feel that in these formative period of our new
government, it might not be very helpful to disregard the issue of wisdom or unwisdom in favor of pure legality, such that
any instance where the language of the Charter can somehow-be construed in a manner that would promote more
effectively the objective of establishing a parliamentary system with its inherent concomittants in our country, that
construction should be adopted, even if in doing so, there might a slight departure from the area circucribed within the
literal meaning of the words employed in the statutory provisions under scrutiny. After mature reflection, however, I have
come to the conclusion that even my best efforts along such line of thinking would not suffice to tilt the balance in favor of
petitioners. Perhaps, it may not be in the context of the situations confronting Us in these cases that the approach I
cherish may be applied.
In any event, I am constrained, as a Filipino, to voice my deep regret that blockvoting has been adopted in the impending

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elections of April 7th next, even conceding as I do that it is not unconstitutional. I perceive shades of its incongruity with
what lies at the bottom of Amendment No. 1 of the Constitution, seemingly blurred ironically enough by the plain
connotation of its tenor. Indeed, the very reason advanced by the respondents that blockvoting has been adopted in order
to more or less insure representation for the small provinces and the old congressional districts and thereby remove the
undue advantage that individual voting affords to the more populous provinces or districts does not appeal to me to be
within the original intent and contemplation of the amendment. The Solicitor General hielf has explained during oral
argument against the petition of Atty. Juan David that the fact that the amendment fixes the number of members of or
delegates to compose the interim Batasang Pambansa at 120, when viewed, on the one hand, in the light of the provision
that implicitly includes in that number the sectoral representatives to be separately elected and the members of the
Cabinet to be selected by the President, and, on the other, the number of existing congressional districts, of nearly that
number, eloquently attests for the obvious original intent of the amendment that the district concept of representation
ordained for the members of the regular National Assembly is not yet to be in force.
I have no doubt whatsoever that such pose of the Solicitor General is correct, I would add, importantly however, that it is
quite apparent that the original concept must have been adopted for two fundamental reasons. First, in that manner and in
that manner alone is it possible to reduce the size of the Batasan to the manageable and efficient body it was conceived
to be. After all, it is going to be no more than a temporary transitional body whose legislative power would only be dual
with the President until martial law shall have been lifted, the main purpose of its creation being to preserve the framework
laid down by the Constitution that there be an interim legislature to carry out the provisions of Sections 5 and 6 of Article
XVI and, thus pave the most expedient way to the establishment of the parliamentary system of government envisaged by
the people thru the main body of the Charter. Relatedly, there is the consideration also of economizing as much as
possible with such reduced legislative structure. All these, to be faithful to the clamor of the people thru the referendum of
January 10-15, 1973 for the scuttling of the interim National Assembly which was condemned for being not only somehow
immorally constituted, what with its automatically selected members, but also because of its being disproportionately large
and unwieldy, contrary to the ideals of efficiency, expeditiousness and thrift of the New Society.
Secondly, the concept of regional representation appears to be an innovative feature which could be tried in our search for
an indigenous political set-up less western and more consonant with our political traditions, custo, expertise and
experience. In other words, the regional Idea is a trial or experimental breakway from the district type of representation to
which the people were accustomed in the past and to which could probably be traced the case with which political
bossism and warlordism, so much detested and feared by all sectors of the people became not only possible but
prevalent. I cannot divine any better intendment to attribute to the regional setup provided for in the amendment and I am
not persuaded that circutances have so changed in less than a year and a half since its approval that a return to the old
system is now warranted.
The foregoing are the compelling considerations that make it incomprehensible to me why the proposal of some members
of the Batasang Bayan to adopt blockvoting had to be accepted and made part of the election code. I find it difficult to
avoid saddening disillusion and apprehension that somehow the pervasive influence of the so-called Old Society politics
has not yet been entirely eradicated and that, on the contrary, it may yet, God forbid, resuscitate if it has somehow been
deadened with a vengeance. If in any sense there was, on the part of the authors of the proposal, any design to reap
undue political over-advantage by its adoption, I like to believe that such factor was not considered by the Batasan, for it
would certainly detract from the image of fairness and square dealing portrayed by the New Society. It is of secondary
importance, whether it was because of the monstrous electoral frauds and anomalies it brought in its wake that such
modality of voting was legislated out by the Congress of the Philippines. What cannot be denied is that it was popular
clamor against it that compelled the legislature to abandon it. And what would be a strange phenomenon is that something
that the Old Society discarded as not suited to our principles and ideals about suffrage is apparently deemed as a
blessing and a necessity by the New Society.
In brief, while it may be fun of political wisdom to enlarge the base of suffrage and representation in the manner now
provided for in the Election Code of 1978, and perhaps, this could make the people in the congressional districts happier
than they would otherwise could be, I would not want the high Idealism and innovative spirit so apparent to me in
Amendment No. 1 to pass away without the least semblance of some necrological lamentation. Granting that such evident
underlying motivations as I have mentioned may not be enough to constrain or drownout what the language of the
amendment in question see to allow, I would like to at least go on record that I honestly believe that the adoption of the
district concept of representation that brought for the need, for practical pur poses, to adopt blockvoting does not square
exactly with what I have always cherished to be the idealistic and purifying tenets of the New Society. As a member of the
Court, I cannot condemn it because it has not been shown to be against the fundamental law of the land, but I am truly
saddened by it because, in my considered opinion, the New Society does not stand to gain from it in the plaintiff of the
principles for which it stands. I reiterate that it is not the element of unfairness that others see in blockvoting that makes
me feel as I do about it, since viewed in the light of the considerations so ably discussed in the main opinion, such
unfairness is not legally and factually apparent. Rather, it is the disconcerting thought that because of it, the elaborate
scheme framed by Amendment No. 1, of an interim legislative body exercised of the evils that characterized politics in the
past, to prepare our people for the new type of government intended to be ushered in by the Constitution itself will no
longer ma . What comes as the sole consolation for me is that great and deliberate care has been taken in the selection of
the candidates, who if elected may be able to redeem the situation .
But there is yet another very important consideration that impelled me to write this separate opinion. It relates to the
golden opportunity, in my estimation, that has been allowed to to bring about a more desirable, if not perfect unity, of the
nation.
It has not been without passion that as a member of the Supreme Court I have always defended Our decision in the
Javellana can as the foundation of the intimacy of the existing government. It is a matter of public knowledge more so in

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the ranks of the members of the bar and the that I have always maintained with all vehemence I can master that, viewed
in the correct perspective of political and constitutional law, Proclamation 1102 on the ratification of the 1973 Constitution
cannot be legally faulted, if only because the Amendment Clause of the 1935 Constitution was inapplicable thereto,
considering that it refers to the ratification of amendments only and not of a new constitution, which it is within the
sovereign prerogative of the people to adopt and ratify in any feasible manner under the prevailing circutances, as
attested by no less momentous as precedent than the ratification of the present Constitution of the United States of
America which was not done in accordance with the amendment clause of the Articles of Confederation. Neither
Javellana, which hindsight teaches could have been more felicitously worded, nor any later decision of Ours has in any
degree discouraged, much less quieted, the dissent of a quite respectable sector of our people to the view that the 1973
Constitution is the legitimate supreme law of the land. Much as we want to believe otherwise the transcendental division of
the country on t score has persisted through all the five years since January, 1973. That the size of the opposition
portended no danger to the peace and order of the country simply because it has lingered more as wpering campaign
does not detract from the unwholesome implications of its existence. Without intending to claim any credit for it, if any
could be due, it has been a self-assigned mission on my part to keep abreast of the developments related thereto, and I
have long been hoping and praying that t scismic wound that has been pestering the nation would soon be healed.
I may be naive in this respect, but I sincerely felt that when the leaders of the Liberal Party, former Senators Gerardo
Roxas, Jovito Salonga and Francisco "Soc" Rodrigo, conditioned their participation in the forthcoming suffrage on the
elimination of blockvoting among others, these others have been substantially agreed to by the administration I
thought that without any way with their stand and tactics, this was the chance I had long of. If for any reason, blockvoting
should result in any advantage at all for the administration, it is my very conviction that the unity I have in mind is worth
much more than the complete victory of the administration ticket, which after all, political pundits con. outsider safe to
predict with or without blockvoting, what with the unprecedented record of achievement and unfailing loyalty to the
interests of the country and the people that it can proudly present to the world. All relevant considerations duly taken into
account, I feel grieved by the loss of that chance to make even the dissenters to Javellana to unite in support of the
government under the New Constitution not that those dissenters could be exempt from Owing loyalty to it otherwise,
but it always gives a wonderful feeling to think that more weapons to mute their objectives are available.
Anent the invocation by petitioners of the provisions of Section 9(1) of Article XII C of the Constitution which enjoins that
"Bona fide candidates for any public office shall be free from any form of harassment and discrimination", I cannot share
the holding in the main opinion that what the harassment and discrimination contemplated therein are comprehended
already within the compass of the equal protection clause of the Bill of Rights in Article IV of the Charter, for which reason,
the test applied to the complaint of petitioners against blockvoting as a form of harassment and discrimination is the
rational classification test. Having in mind the peculiar, unique and ingenious for and ways of harassment and
discrimination practiced by our politicians before, which could conceivably defy the equal-protection test of rational
classification or discrimination, I prefer to hold that the provision in question refers to any form or means of harassment or
discrimination, including those that might otherwise be sanctionable under the equal protection clause. The framers of the
Constitution cannot be assumed to have indulged in an extravagant waste of words by phrasing the provision the way it
appears. There was absolutely no need for Section 9(1), if all that the constitution makers had in mind was to guarantee
all candidates equal protection of the laws. The unforgettable experience undergone by even members of the convention
that spelled injustice and oppression during electoral combats should be read into this provision. This is a new provision
and it was adopted because the most expansive construction of the old equal protection clause was found not to be
enough guarantee against injustice and unfairness in the electoral arena.
This is not saying, however, that the system of blockvoting under the Election Code of 1978 being assailed by petitioners
contains the elements of harassment and discrimination under Section 9(1). I see nothing of harassment in optional
blockvoting. Neither is there any degree of discrimination therein that is unduly oppressive. The argument that because
neither the Kilusan ng Bayan nor the Lakas ng Bayan aggrupations are political parties, the candidates in their respective
tickets should be deemed also as independent candidates who must be voted individually by their respective name to
avoid discrimination overlooks the fact that said candidates have formally, if loosely, grouped together in the pursuit, not
only of a common victory but of some common political beliefs, ideals and objectives revolving fundamentally around the
promotion of the ai of the New Society. It is thus neither harassment to their independent opponents nor discrimination
against them to treat the former as aggrupation.
-2Coming now to the plea of petitioner that the provisions on turn-coatism under Section 10 of Article XII C and on
accreditation of political parties in Section 8 of the same article be declared as in force and applicable in these cases, I am
in full accord with the holding in the main opinion that application of the same to the coming election is entirely out of the
question. Of course the said provisions are in force, but how could they be applied?
I simply cannot see how one can talk of the political parties, which the Constitution obviously contemplates, in the context
of our political situation today. Let us not forget that in the scheduled election of April 7, what is involved is not an
institution established by the Constitution itself. The Batasan is not a creation of the Constitution but of Amendment No. 1.
In fact, it is undeniable that the Constitution does not contemplate the election of an interimlegislature.
The interim National Assembly it created was not designed to be an elective body. The Constitution itself designated who
its members were supposed to have been. It is but fitting and proper, therefore, that, since the amendment itself does not
provided for any specific manner of electing the members of the Batasan, such manner should be "prescribed and
regulated by law", meaning necessarily, by a Presidential Decree.
Although Amendment No. 8 does provide that "all provisions of this Constitution not inconsistent with any of these
amendments shall continue in full force and effect," plain common sense dictates that no constitutional provision can be

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applied when and where the situation contemplated for such application does not exist. In my view, the establishment of a
Parliamentary system of government by the Constitution and the proclamation of martial law which brought forth the
constitution of the New Society have together given birth to a new era in the political life of the Philippines that can hardly
justify the recognition of the political parties existing in January, 1973 when the constitution took effect, for purposes of the
accreditation referred to in Section 8 of Article XII C.
Examining t provision closely, it will be noted that the system of accreditation established thereby constituted in itself a
new process, which cannot be altered or modified by the legislature, thru which a more responsible party system could be
developed. While it does not directly prohibit the creation of more than three political parties, it in effect compels all such
Parties to so conduct theelves as to be worthy of the con. confidence of a substantial element of the voting populace,
otherwise, those who cannot obtain the third highest number of votes in the p election would not be able to enjoy in the
next one the rights and privileges usually needed to carry on a significant campaign. in this connection, the question that
represents itself is this: Can the Nacionalista Party and the Liberal Party be accredited for the purposes of the coming
election, taking into account the votes garnered by them in the last election held before the new Constitution came into
being? The ready answer to t question is No, for the simple reason that by the letter of the code, this election is regional
hence the constituency for which accreditation can only be asked is the region where it seeks to have candidates, just as
the criterion for its accreditation has to be the number of votes it obtained in that region. And to be true to the concept of a
constituency implicit in the system, the previous election must have also been regional which everyone knows has not
been I held anywhere in the country. Indeed, there is no way of knowing exactly when the accreditation system envisaged
in the Constitution will start to operate. Consequently, since no existing political party can be legitimately accredited, the
rights and privileges which should accrue to accredited parties should be allowed to be enjoyed by any new group or
aggrupation of candidates who happen to possess the nearest semblance of a political party by, in the words of Section
199 of the Code, "pursuing the same political ideals in government", if only for the purposes of the impending election. All
these in the interest of holding an orderly election and enabling the sovereign people to exercise the right of in the manner
most proximate to that designed in the Constitution.
At the same time, the existence of groups or aggrupations in default of fully and duly organized political parties should
pave the way to the organization of the kind of Political Parties that perhaps is envisioned by the Constitution. If the New
Society is to mean anything at all, and if the vociferous and incessant condemnation of the politics of pre-martial law is to
bear any useful fruit, any idea of applying the provisions of the Constitution on political parties to the existing ones must be
discarded, until they have so reorganized and reformed as to fit within the concepts of the New Society.
In the light of the foregoing considerations, I cannot see my way clear to consideration the inclusion of members of the
Liberal Party in the ticket of the Kilusan ng Bayan as a change of party on their part, within the proscription of Section 10
of Article XII C of the Constitution. The Kilusan is not a party, and whatever it enjoys now that should pertain only to a
party has to be given to it only by force of necessity for the purposes of t election. Section 10 was conceived to eradicate
turncoatism a very laudable objective. But the concept of turncoatism it condemns does not apply to the situation Of
those members of other political parties who have joined the Kilusan and, for that matter, those who joined the Takas ng
Bayan or any other opposition or independent group. The nation is now precisely in that stage of its political life where the
citizens who have the general welfare and the country's freedom, happiness and prosperity in their hearts, are trying to
look for their respective rightful places where they can be of maximum utility in the reform movement that has endulged
everyone and every human activity in t part of the world. To leave any of the old political parties now and join another is
not turncoatism that is to be disdained; it is a patriotic endeavor that is in keeping with the paramount objective of helping
the Philippines to be great again.
FERNANDO, J., concurring and dissenting:
It is a reassuring feature of the martial law regime in the Philippines that t Court had repeatedly entertained suits
challenging the validity of presidential decrees raised in appropriate legal proceedings. 1 It is a role it had never shunned.
There is thus adherence to the path of constitutionalism, both in normal times and under crisis conditions. Even during this
period of emergency, parties had come to this Tribunal whenever, in their opinion, the executive act assailed was tainted
by the vice of nullity. They did complain, and they were heard. In that way, this Court manifested fealty to the basic tenet of
constitutionalism. For there is no issue so basic that it cannot be settled within the constitutional framework. Courts, in the
language of Chief Justice Concepcion, "have, not only jurisdiction to pass upon [such questions] but also the duty to do
so, which cannot be evaded without violating the fundamental law and paving the way to its eventual
destruction." 2 Judicial review is thus the dominant constitutional concept to assure that the Constitution remains supreme.
It is an awesome power, to be sure, but reasons of delicacy as well as the courtesy due a coordinate branch do not suffice
to ward off judicial intervention in proper cases. More specifically, this Tribunal cannot avoid the responsibility thrust upon
it to vindicate the rights safeguarded by the Constitution.
It is undeniable that the function of judicial review exists not because courts can initiate the governmental action to be
taken, but because thereafter the duty to pass upon its validity, whenever raised in an appropriate case, is theirs to
perform. The trust reposed in them is not to formulate policy but to determine its legality as tested by the Constitution. The
function entrusted to them is to decide, assuming that a suit satisfies the requisites for an inquiry into a constitutional
issue, whether there is a failure to abide by the fundamental law. If so, the outcome should not be in doubt. Care is to be
taken though that the transgression alleged did in fact occur. The challenge may be insubstantial and the argument
adduced inconclusive. It may come from parties resolved to transfer the site of conflict from the political arena to the
judicial forum. That is not to be encouraged. Certainly, there must always be an awareness of the scope of the power to
adjudicate. It goes no further than to assure obedience to and respect for the mandates of the Constitution. The limits
imposed on the exercise of executive and legislative power must be observes The function of judicial review is intended to
serve that Purpose It does not extend to an unwarranted intrusion into that broad and legitimate sphere of discretion
enjoyed by the political branches to determine the policies to be pursued. This Court should ever be on the alert lest,

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without design or intent, it oversteps the boundary of judicial competence. Judicial activism may become judicial
exuberance As was so well put by Justice Malcolm. "Just as the Supreme Court, as the guardian of constitutional rights,
should not sanction usurpations by any other department of the government, so should it as strictly confine its own sphere
of influence to the powers expressly or by implication conferred on it by the Organic Act." 3
Justice Laurel in the landmark case of Angara v. Electoral Commission, 4 decided eight months to the day from the
effectivity of the 1935 Constitution, put the matter in language notable for its impact, sweep, and enduring vitality. Thus:
"The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such
powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the
judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments, it
does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned
to it by the Constitution to determine conflicting clai of authority under the Constitution and to establish for the par ties in
an actual controversy the rights which that instrument and guarantees to them. This is in truth all that is involved in what is
termed 'judicial supremacy' which properly is the power of judicial review under the Constitution. Even then, t power of
judicial review is limited to actual cast and controversies to ex after full opportunity of argument by the parties, and limited
further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to
dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in t
manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts
accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to
abide by the Constitution but because the judiciary in the determination of actual cases and controversies must reflect the
wisdom and justice of the people as expressed through their representatives in the executive and legislative departments
of the government." 5 Such a principle was earlier given expression, in words both lucid and emphatic, by Justice Malcolm:
"If there is probable basis for sustaining the conclusion reached, [legislative] findings are not subject to judicial review.
Debatable questions are for the legislature to decide. The courts do not sit to resolve the merits of conflicting theories." 6
In that perspective and with such pronouncements of undoubted clarity, force, and authority coming from eminent
constitutionalists, the conclusion reached by the Court commends itself for approval. Nor is t merely to pay heed to
precepts fundamental in character. The principles set forth above were not only characterized by their responsiveness to
the questions involved in such litigations but were also impressed with a validity which transcended the issues raised on
those occasions. As it was then, so should it be now. While the judicial process does not take place in a social void, there
are doctrines that are of the essence of the function of judicial review. The doubts that come to mind from an objective
appraisal of the challenged provisions of the 1978 Election Code do not suffice then to call for a declaration of nullity.
It is true that as to the optional block voting scheme, it may be said that the strictures of recent tory had been glossed
over. To the extent, however, that it will undoubtedly be of great help to the unlettered and untutored who, as citizens, are
entitled to participate in the democratic process, without impairing the freedom of choice in view of its not being
compulsory, it cannot be said to be infected with the virus of invalidity. This is, of course, on the assumption that electoral
frauds will be avoided. Moreover, insofar as the optional block voting scheme is a valid response to a compelling state
interest, favoring as it does the growth and stability of political parties, petitioners who are independent candidates were
unable to sustain the burden of proving that there is a denial of due process or of equal protection. 7 What added difficulty
to their task was the rather tenuous character of their plea, premised as it is on their mere assertion that the challenged
provision on the block voting scheme is void on its face. Thus they had to overcome the presumption of validity accorded
a legislative or executive act. This they failed to do.
Nor should nagging doubts prevail against the overriding consideration that thereby, the electorate is afforded the
opportunity of choosing their representatives in a legislative body, even of an interim character. That is to pay homage to
the fundamental principle of the Philippines being a republican state, with sovereignty residing in the people. 8 As was so
well emphasized by justice Laurel in Moya v. Del Fierro: 9 "As long as popular government is an end to be achieved and
safeguarded, suffrage, whatever may be the modality and form devised, must continue to be the means by which the
great reservoir of power must be emptied into the receptacular agencies wrought by the people through their Constitution
in the interest of good government and the common weal Republicanism, in so far as it implies the adoption of a
representative type of government, necessarily points to the enfranced citizen as a particle of popular sovereignty and as
the ultimate source of the established authority." 10
There is this added reinforcement to the conclusion reached by the Court. The forthcoming election is a major step toward
the eagerly-awaited restoration of full civilian rule. There is thus a closer approximation to the Willoughby concept 11 that
martial law merely confers on the Executive the competence to call on the armed forces to assist him in the faithful
execution of the laws, primarily the maintenance of peace and order, leaving unimpaired the full exercise of legislative and
judicial powers by the other departments and thus maintaining civilian supremacy. Moreover, the existence of
an interim Batasang Pambansa would be in consonance with the pronouncement of Justice Black in Duncan v.
Kahanamoku 12 that even during such emergency period, legislatures and courts remain indispensable to the existence of
a republican state. 13 I am thus persuaded to yield conformity to the able, exhaustive,. and learned opinion of Justice
Antonio, except for the inclusion of the rule on appreciation of ballots found in paragraph 28 of Section 155 of the 1978
Election Code, which, to my mind, raises a serious constitutional question. For as it stands, there appears to be an undue
intrusion in the freedom of choice implicit in the right of suffrage if an elector's preference for individual candidates would
not be accorded recognition solely due to the fact that at the same time ballot likewise indicates voting for the slate of
another party or aggrupation. In such a ease, it is my view that what should be disregarded is the vote for such other party
or aggrupation and the vote for the individual candidates counted. To that extent, I am unable to yield entire concurrence.
1. Solicitor General Estelito P. Mendoza, 14 in raising the question of standing of petitioners, relied on a well-settled
doctrine concerning the procedural standards that must be met for the function of judicial review to come into play. "The
unchallenged rule," according to Justice Laurel, in the equally leading case of People v. Vera, 15 "is that the person who

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impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or
will sustain, direct injury as a result of its'enforcement." 16 There was a reiteration of t doctrine in Pascual v. Secretary of
Public Works, 17 with t modification in the opinion of Chief Justice Concepcion: "Yet, there are many decisions nullifying, at
the instance of taxpayers, laws providing for the disbursement of public funds, upon the theory that 'the expenditure of
public funds by an office of the State for the purpose of administering an unconstitutional act constitutes
a misapplication of such funds,' which may be enjoined at the request of a taxpayer." 18 Thus was the concept of a
taxpayer's suit given the imprimatur of approval by this Court. It does not mean, however, that in each and every instance
where such an exception is invoked, this Tribunal is left with no alternative except to hear the parties. Tan v.
Macapagal" 19 clarified matters thus: "Moreover, as far as taxpayer's suit is concerned, tills Court is not devoid of discretion
as to whether or not it should be entertained." 20 Solicitor General Mendoza was on solid ground therefore when he raised
as one of defenses that taxpayer's suits as such do not necessarily call for the exercise of the function of judicial review.
Fortunately for petitioner all of them could show an interest Personal and substantial. Two petitions were filed by
registered voter, 21 two others, by registered candidates for the interim Batasang Pambansa; 22 and the last two, one by "a
political and civil aggrupation" and the other by a former delegate to the 1971 Constitutional Convention who was also the
Chairman of the Committee on Political Parties. 23 It only remains to be added that there apparently is a tendency in recent
American decisions to retreat from the liberal rule as to standing announced in the 1968 decision of Flast v.
Cohen. 24 There is no automatic reversion, however, to the rather rigid rule of Mellon v. Frothingham, 25 a 1923 decision.
After a recent careful and analytical study of the trend discernible in cases heard the last two or three years by the
American Supreme Court, 26 Professor Tushnet came to t conclusion: "Decisions on questions of standing are concealed
decisions on the merits of the underlying constitutional claim. The Court finds standing when it wishes to sustain a chum
on the merits and denies standing when the claim would be rejected were the merits reached." 27
2. Certainly, a voter whose right of suffrage 28 is allegedly impaired by the optional block voting scheme is entitled to
judicial redress. The "enfranced citizen," to refer anew to Justice Laurel's opinion in Moya v. Del Fierro, 29 is "a particle of
popular sovereignty and [is] the ultimate source of the established authority." 30 Such a thought was given expression by
Chief Justice Concepcion in Ozamis v. Zosa 31 in words with a similar ring, characterizing the right to vote as "an attribute
of sovereignty." 32 It follows then, to quote from Pungutan v. Abubakar, 33, that it is "a constitutional guarantee of the utmost
significance. It is a right without which the principle of sovereignty residing in the people becomes nugatory." 34 It is thus
evident that petitioners who are registered voters cannot be denied the right to be heard. This Court is committed to such
a principle. 35 So it is under American law where a denial of the right to vote could even be made the basis for a money
claim. That was the ruling in the leading case of Nixon v. Herndon, 36 the opinion being penned by the illustrious Justice
Holmes: "The objection that the subject-matter of the suit is political is little more than a play upon words. Of course, the
petition concerns political action, but it alleges and seeks to recover for private damage. That private damage may be
caused by such political action, and may be recovered for in a suit at law, hardly has been doubted for over two hundred
years, since Ashby v. White, and has been recognized by this court." 37 Chief Justice Warren, in Wesberry v.
Sanders, 38 was quite eloquent when he spoke on the matter: "No right is more precious in a free country than that of
having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even
the most basic, are illusory if the right to vote is undermined." 39 possible objection based on standing can be raised either
when the suit is instituted by a candidate for public office 40 as well as a political party or aggrupation. 41Concerning as
constitutional convention delegate, there had been no previous decisions on the matter. By analogy, however, inasmuch
as members of the legislative body both in the Philippines 42 and in the United States43 could file actions to assail the
validity of a challenged legislation or even a resolution of the Constitutional Convention, a delegate or former delegate is
entitled to the same privilege.
3. It is unthinkable then for this Court not to inquire into any allegation of constitutional infirmity imputed to a provision of
the Election Code that would emasculate the right to vote. Five of the six petitions assailed the options block voting
scheme with unwonted severity, but the denunciation fell far short of overcoming the presumption of validity. To be more
specific, three of the petitioners, Pedro G. Peralta, 44 B. Asuncion Buenafe, 45 and Juan T. David, 46 did manifest grave
concern as to its possible adverse effects on their candidacies, the first two stressing their running as independents. The
censure that came from the Youth Democratic Movement 47 was peripheral to its main submission. That leaves only
petitioner De la Llana, 48 who filed a suit for declaratory relief treated by this Court as an action for prohibition,
distinguished, if that is the appropriate term, by condensing the matter in four pages. Ostensibly, it is an attack on the
optional block voting scheme, yet, instead of stressing the right to vote, it would premise its plea on the ground that no
party could be accredited by the Conunission on Elections and subsequently no party could be voted for in the coming
elections, referring to Article XII C, Section 2, paragraph 5 and Section 8 of the same Article. 49 All that was stated by him
as to the optional block voting is that it "win result to (sic) the commission of gross electoral frauds and malpractices and
the election win only be a farcical political exercise and a death blow to our democratic system." 50 What other conclusion
can there be from such a bare assertion except that it is decidedly unpersuasive? It assumes what must be shown. There
is nothing axiomatic about conclusion. It cannot just be taken for granted. There see to be lack of awareness of the
rudimentary concept in constitutional law that there being a presumption of validity, the necessity for evidence to rebut it is
unavoidable, unless the statute or decree is void on its face. 51 Without developing further how the right to vote of an
elector, who is given the freedom of choice between casting ballot for individual candidates or for the favored party or
aggrupation, had been infringed, it may be a rash assumption to affirm categorically that "the election win only be a
farcical political exercise and a death blow to our democratic system." tory need not repeat itself. Precisely, measures to
avoid abuses in the utilization of a device neutral in character and on its face not infected with the vice of nullity could be
taken. It does not suffice to link past agonies with present hopes. Let me not be misunderstood. The desirability of any
block voting provision, even if optional, is not by any means suggested. An that is set forth here is that respect for the
deeply-rooted principle of according the, presumption of constitutionality to a legislative act or a presidential decree
cautions against sustaining the plea of petitioner De la Llana. There was a dismal failure to sustain the burden incumbent
upon him to demonstrate invalidity. The thirteen-page petition of the Youth Democratic Movement 52 is distinguished by a
more conscientious and diligent appraisal of the constitutional issues. Its major thrust, however, is on the limitation of the
election period, arousing the fear on the part of petitioner that the balloting would not reflect the true popular will. There is,
however, t stray comment bearing on the optional block voting provision: "And t will be worse confounded by the

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introduction of the infamous block voting scheme which millions of our voters do not understand. Even intelligent
professionals are confused. The result will be countless (sic) of stray ballots and a defeat of popular will." 53 Such a rather
curt summary invites a similar appraisal. Clearly, the presumption of validity has not been overcome.
4. Petitioner Peralta was rather vehement in contending that the optional block voting scheme is violative of t provision of
the Constitution: Bona fide candidates for any public office shall be free from any form of harassment and
discrimination." 54 He sought the shelter of its protection for hielf and other independent candidates who, according to him,
would be thus made to suffer if the assailed provision is not nullified. Essentially, in ter of individual rights, he would raise a
due process and equal protection question. 55
5. First, as to the due process aspect. It is undoubted that if the optional block voting scheme, in the language of Cardozo,
would outrun the bounds of reason and result in sheer oppression, it offends against such a guarantee. An executive or
legislative act must satisfy the rational basis test. It is equally undoubted that with such a provision an advantage is
afforded party candidates. Does that stamp it with invalidity? The answer is in the negative. The importance of political
parties or political aggrupations to a republican state, especially so for a parliamentary system, calls for such a response.
On that point, there is t Categorical declaration by Schattschneider: "The rise of political parties is indubitably one of the
principal distinguishing marks of modern government. The parties, in fact, have played a major role as makers of
governments, more especially they have been the makers of democratic government. it should be stated flatly at the
outset that t volume is devoted to the thesis that the political parties created democracy and that modern democracy is
unthinkable save in ter of the parties. As a matter of fact, the condition of the parties is the best possible evidence of the
nature of any regime." 56 It is, to quote him anew, "first of all an organized attempt to get power." 57 As observed by
Truman: "Whatever else it may be or may not be, the political party in the United States most commonly is a device for
mobilizing votes, preferably a majority of votes." 58 As a vote mobilizer he stated further, "a party must be an 'alliance of
interests' to use Herring's phrase." 59 It is through a political party then that the shifting desires and pressure intensities of
the various groups that compose the electorate may be ascertained. This is not to say though that it does not reflect the
deep clash of forces within the community, but the crucial element in their campaign for votes, to repeat, is the drive for
power. "The single purpose," to quote from Friedrich, "[is] victory." 60 Thus it has to be responsive to the needs and outlook
of the elector. At times, it may be unavoidable that; there be compromises with both political principles and doctrinal
symmetry. Nor is that necessarily undesirable for that could minimize the sharpness of conflicts which, with leaders of
undeviating rigidity in their approach to political proble, could have caused an undue strain in the body politic. Through a
political party, the feelings of the electorate about their own tangled proble and institutions may be canalized and thus be
clarified. Likewise, it serves as a source of resiliency and cohesion. The party system, according to Lerner, "has given
American democracy a rough kind of politically functioning unity without the social cast that the unity of a single-party
totalitarian system would have involved." 61 What was said by the eminent British political scientist Laski is equally
relevant. According to subject to a small number of exceptions, members are not elected "to Parliament for exceptional
beauty of character, or distinction of mind; they have been returned there to support a party to which their supporters hope
will win enough seats to be able to form a government under the Premiership of its leader." 62 He elucidated further. "No
doubt the party system s we know it, has a special pathology of its own. It is hostile to the independent member; it makes
the rise of new parties a difficult matter; it a general vote of confidence in men rather than a mandate upon measures; and
once it has brought the new House of Commons into being, the character, of its party pattern gives both the House and
the electorate a government which party discipline will usually maintain in office for a period pretty close to the five years
set as its legal term by the Parliament Act of 1911." 63 It cannot be said, therefore, that the added advantage afforded
parties or aggrupations by the optional block voting device is an infringement of the due process guarantee. Whatever
deficiencies may be attributed to it cannot go so far as to warrant the conclusion that thereby the rational basis test for
governmental action had been disregarded.
6. Now as to the equal protection question. It is undoubted that independent candidates are at a disadvantage under an
optional block voting scheme. Does that in itself justify a finding that it suffers from the corrosion of constitutional infirmity?
The answer, if due regard be had to the authoritative and controlling doctrines, is in the negative. The teaching of our
decisions is plain and unmistakable. It is too clear to be misread. So it has been from People v. Vera, 64 the second
landmark opinion in constitutional law of Justice Laurel to Felwa v. Salas, 65cited in the opinion of Justice Antonio.
The ponencia of Chief Justice Concepcion in Felwa is a succinct but comprehensive statement of the matter. Thus: "It is
well settled that the equal protection clause applies only to persons or things identically situated and does not bar a
reasonable classification of the subjects of legislation, and that a classification is reasonable where: (1) it is based upon
substantial distinctions which make real differences; (2) these are germane to the purpose of the law; (3) the classification
applies, not only to present conditions, but also to future conditions which are substantially identical to those of the
present; and (4) the classification applies equally to all those who belong to the same class." 66 It is of interest to note that
the applicable constitutional law doctrine in Malaysia is not dissimilar. So it is apparent in the masterly opinion of Lord
President Tun Sufian of the Federal Court of Malaysia, promulgated in 1977, in Datuk Haji Harun bin Haji Idris v. Public
Prosecutor. Like our Constitution the federal charter of Malaysia has an equality provision. 67 As was made clear by the
Lord President, it is not absolute but qualified. 68 As in the Philippines, such a guarantee "applies to both substantive and
procedural law" but "envisages that there may be lawful discrimination based on classification." 69 That the formulation of
Justice Laurel in People v. Vera as to when there is a reasonable classification applies as well in Malaysia is evident from t
portion of the opinion citing the Shri Ram Krishma Dalmia decision of the Indian Supreme Court to the effect that a
discriminatory law is good law as long as there is reasonable and possible classification which "is founded on an
intelligible differential which distinguishes persons that are grouped together from others left out of the group; and the
differential a rational relation to the object sought to be achieved by the law in question. The classification may be founded
on different bases such as geographical, or according to objects or occupations and the like. What is necessary is that
there must be a nexus between the basis of classification and the object of the law in question." 70 Succinctly put, to quote
anew fromPeople v. Vera, what is condemned is invidious discrimination.
A recent decision, J. M. Tuason and Co., Inc. v. Land Tenure Administration, 71 has t relevant excerpt: "To assure that the
general welfare be promoted, which is the end of law, a regulatory measure may cut into the rights to liberty and property.

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Those adversely affected may, under such circutances, invoke the equal protection clause only if they can show that the
governmental act assailed, far from being inspired by the attainment of the common weal was prompted by the spirit of
hostility, or at the very least, discrimination that finds no support in reason. It suffices then that the laws operate equally
and uniformly on all persons under similar circutances or that all persons must be treated in the same manner, the
conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference
cannot be snowed. For the principle is that equal protection and security shall be given to every person under circutances
which, if not Identical are analogous. If law be looked upon in ter of burden or charges, those that fall within a class should
be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest." 72
7. Petitioner Peralta's contention that there was an infringement of the equal protection clause is thus devoid of support in
law. The optional block voting scheme, it cannot be too strongly emphasized, is one of the means of strengthening a party
government which is a valid state objective. To the extent, therefore, that independent candidates may be placed in a less
favorable category, it is not a suspect classification to which the rigid scrutiny test applies. 73 This Court is not called upon
then to nullify such a provision. Such a conclusion follows from another avenue of approach. In Aglipay v. Ruiz, 74 a 1937
decision of major importance, Justice Laurel as ponenterejected the contention that the issuance of postage stamps
referring to Manila as the Seat of the XXXIII International Eucharistic Congress was violative of the constitutional provision
against the use of public money or property for the use, benefit, or support of any sect or church or system of religion. 75
He explained why: "What is emphasized is not the Eucharistic Congress itself but Manila, the capital of the Philippines, as
the seat of that congress. It is obvious that while the issuance and sale of the stamps in question may be said to be
inseparably linked with an even of a religious character, the resulting propaganda, if any, received by the Roman Catholic
Church, was not the aim and purpose of the Goverment. We are of the opinion that the government should not be
embarrassed in its activities simply because of incidental results, more or less religious in character, if the purpose had in
view is one which could legitimately be undertaken by appropriate legislation. 76 So in this case, in the emphatic language
of Justice Laurel: "The main purpose should not be frustrated by its subordination to mere incidental results not
contemplated." 77 If the independent candidates are to be prejudiced by the adoption of the optional block voting scheme,
the resulting harm to their candidacy is attributable to their decision to run as such. There is nothing to prevent them from
joining a party or aggrupation and hoping to be nominated as candidates. Any adversity suffered by them comes under the
heading of a self-inflicted wound.
Petitioner Peralta, undeterred, would seek to lend a semblance of deceptive plausibility by the assertion that in the Vera
Opinion of Justice Laurel, a law may be considered bad not only when it actually denies but also when it permits
inequality. There is a grave misapprehension on part. People v. Vera declared unconstitutional the former Probation
Act 78 in view of the fact that its Section 11 would leave its applicability the appropriation by the Provincial Board of the
salary of the probation officers. Since the Act was intended to operate equally in the Philippines, there certainly would be
inequality if certain provinces failed to make the necessary appropriation As the purpose was for an enactment nationwide
in operation, all provinces belong to the same class. To assert in the light of such undoubted statutory objective that a
similar kind of inequality may be attributed to the optional block voting scheme that would thus favor political parties or
aggrupations is to flounder in the mire of elusive analogy. For in the challenged provision, as in the cases of usury laws
making a distinction between debtors and creditors, the Recto Installment Sales Law making a distinction between
vendors and vendees, and in labor legislation making a distinction between management and the workingmen, the statute
treates a separate class in a much more favorable manner without thereby incurring the vice of offending against the
equal protection clause. So it is in the case of the assailed optional block voting scheme. The denunciatory favor in which
the contention was made is thus unpersuasive. It cannot stand the test of scrutiny, not to mention the fact that the element
of hyperbole was clearly apparent. The assertion that there is a denial of equal protection thus falls to the ground.
8. The questions raised in the David, the Youth Democratic Movement, and the Fajardo petitions, all of which bore
evidence of considerable thought and reflection, with one of them characterized by objectivity seeming to melt away under
the fierce fire of intense indignation, were squarely met and, to my mind, satisfactorily resolved, in the opinion of Justice
Antonio. Nothing remains to be added except to point out that in the first two, with petitioner David being hielf a candidate
in the forthcoming elections and petitioner Youth Democratic Movement being a political aggrupation with intent to
present, so its petition stated, a complete ticket for the Metro Manila region, 79 it would appear that the doctrine of
estoppel, which admittedly is not to be applied indiscriminately, enters into the picture and constitutes a bar, although not
insurmountable, to the grant of the relief prayed for. 80 It is perhaps understandable why the Fajardo petition appears to be
less than fully aware of the implications of the doctrine of primary jurisdiction and ripeness of the constitutional question
raised to call for adjudication, since petitioner is not a member of the bar. 81 It may likewise be stated that considering the
tensions of our days and the crisis of our times, it may be a counsel of wisdom not to anticipate the serious constitutional
law proble that would arise under situations where only a tentative judgment is dictated by prudence. This is a decade of
transition and, as pointed out in the opinion of justice Antonio, there is a great deal of allowable latitude for
experimentation. It is only when there is a clear denial of a constitutional right evident on the face of a statute or decree
that even in the absence of any evidentiary proof, it wig be time, to borrow from the language of Justice Laurel, "to make
the hammer of [judicial review] fall, and heavily, but not until then." 82 To my mind, that stage had not been reached in the
last three petitions.
9. It is quite obvious then that t separate opinion is essentially and almost wholly one of concurrence. If there is a dissent,
it is submitted ex abundante cautela. As was made plain at the outset, it is not to an explicit ruling but merely the
reference to Section 155 paragraph 28 of the Election Code that precluded, on my part, an agreement full and entire. The
opinion of the Court set forth as the first issue: "Whether or not the voting system provided for in Sections 140 and 155,
sub-paragraphs 26 to 28 of the 1978 Election Code, granting to the voter the option to vote either for individual candidates
by filling in the proper spaces in the ballot the names of candidates he desires to elect, or to vote for all the candidates of
a political party, group or aggrupation by simply writing in the space provided for in the ballot the name of the political
party, group or aggrupation, violates Section 1 of Article IV and Section 9(1) of Article XII-C of the Constitution." 83 Then

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the aforesaid provision was quoted in full: "Sec. 155, par. 28: If a voter has written in the proper space of ballot the name
of a political party, group or aggrupation which has nominated official candidates and the names of individual candidates
not belonging to the ticket of the same political party, group or aggrupation in the spaces provided therefor, all of the votes
indicated in the ballot shall be considered as stray votes and shall not be counted: ..." 84 Reference was likewise made to
Section 4 of Commonwealth Act No. 666 which provided. "(g) If a voter had voted for the straight ticket of a political party
and at the same time had written on one or more blank spaces of the ballot the names of candidates of other party or
parties or of independent candidates, said names shall be deemed as not written and the vote shall be counted as cast for
each and every one of the official candidates of the party voted for in the ballot." 85 It is that rule in the appreciation of
ballots that to my mind is free from any unconstitutional taint. The will of the voter expressed in a manner free from doubt
was given force and effect. This is not the case with paragraph 28 of Section 155 of the Election Code. After such a
categorical expression of will to vote for specified candidates whose names he had taken the trouble to write, I am unable
to accept any implication in the opinion of the Court that just because he had also made use of the optional block voting
scheme, a statutory provision setting at naught will as to such candidates individually singled out could be viewed as free
from any constitutional deficiency. I would not want then to be placed on record as having failed to express my conviction
on the matter. Hence, this brief dissent.
A few more words. Solicitor General Mendoza in the course of oral argument observed that two of the most eminent
constitutionalists who sat on t bench, Jose P. Laurel and Claro M. Recto, while undoubtedly cognizant of the abuses to
which block voting could give rise and did suffer as a consequence, did not challenge its validity in an appropriate case or
Proceeding. Their failure to do so is, to my mind, impressed with significance considering that in the post World War II
period, until they died, they had participated as counsel de parte or as amici curiae or had been consulted on major
constitutional law cases. 86 They were, to follow Thomas Reed Powell, silently vocal on the matter. It would seem that for
them such a question had more of a policy rather than a legal connotation, thus appropriately belonging to the political
branches. It is to stress anew that it is primarily on that ground, with full reliance on the authoritative pronouncements in
the aforecited cases of Angara, Pasay Transportation, and Lorenzo, the opinions coming from the pens of Justices Laurel
and Malcolm, that I am persuaded to concur in the dismissal of these petitions. So I am led to conclude because, for me,
there was no clear showing of invalidity based on the impairment of the right of suffrage or the denial of due process and
equal pro. protection guarantees. The presumption of validity accorded a legislative act or executive decree was not
therefor overcome. Stress must equally be made on what was said before that the dismissal of these petitions, especially
those impugning the validity of the optional block voting scheme, cannot be construed as an admission of its desirability.
That is a matter the cognizance of which belongs to the other branches. Nor is it to deny that, as unfortunately happened
in the past, it could be perverted from its legitimate use and could be a source of electoral frauds. As early as 1816,
Justice Story, in the oficited case of Martin v. Hunter's Lessee, 87 characterized an argument "from the possibility of an
abuse" as "unsatisfactory." 88 He emphasized: "It is always a doubtful course, to argue against the use or existence of a
power, from the possibility of its abuse." 89 T excerpt from an opinion of Justice Cardozo in Willia v. Baltimore 90 is equally
relevant: "The judicial function is exhausted with the discovery that the relation between means and end is not wholly vain
and fanciful, an illusory pretence. Within the field where men of reason may reasonably differ, the legislature [or the
executive] must have its
way." 91
At any rate, there is solace in the thought that outside of the 1978 Election Code being applicable only for t year's poll
there are built-in provisions therein to guard against the perpetration of electoral misdeeds. Moreover, it is to the interest of
the present Administration that every effort should be made to avoid such evil practices. If it fails, its achievements would
stand discredited and the New Society itself condemned. There must be a true expression of the popular will, which,
thereafter, must be obeyed. So both constitutionalism and democracy mandate.
TEEHANKEE, J., dissenting:
I. I dissent from the majority's dismissal of the petition on the fundamental ground in consonance with my stand in earlier
cases 1 that the so-called October 27, 1976 amendments to the 1973 Constitution which sought to crate the Interim
Batasang Pambansa in lieu of the interim National Assembly provided for in Article XVII of the 1973 Constitution were
constitutionally void and invalid since the constituent power to propose constitutional amendments during the transition
period (between enforcement of the 1973 Constitution and election and assumption of office of the members of the regular
National Assembly) is expressly vested in the interim National Assembly (not in the incumbent President) and the only way
to fulfill the express mandate of the Constitution in proposing and effecting any constitutional amendments is the
convening of the interim National Assembly to exercise the constituent power to propose amendments.
This was not done, although it is universally recognized that the Constitution is a "superior paramount law, unchangeable
by ordinary means" 2 but only by the particular mode and manner therein prescribed for otherwise "there will not be
stability in our constitutional system and necessarily no stability in our government." 3
But with the majority vote in Sanidad, supra the proposed amendments were proclaimed as ratified and in fun force and
effect as of October 27, 1976 under Presidential Proclamtion No. 1595. And elections have been called for April 7, 1978
under Presidential Decree No. 1296 (1978 Election Code) for electing the members of the Interim Batasang Pambansa
with greatly diluted powers and functions compared to those of the interim National Assembly. (Thus, contrary to the very
tenets of the parliamentary system the Interim Batasang Pambansa which is shorn of the interim and regular Assembly's
power to ratify treaties, cannot elect the Prime Minister nor replace the incumbent President as Prime Minister who may
however dissolve the Batasan at any time 4 and who shall continue to exercise legislative powers until martial law shall
have been lifted." 5 The President (Prime Minister) is further empowered to "issue the necessary decrees, orders, or
letters of instructions, which shag form part of the law of the land "whenever the Interim Batasang Pambansa or the
regular National Assembly "fails or is unable to act adequately on any matter for any reason that in judgment requires

135
immediate action." 6
II. We are thus confronted with the reality of the scheduled April 7, 1978 election of Interim Batasang Pambansa members
and the merits of the petitions at bar which in the main assail the validity and constitutionality of the so-called "optional
block voting" system now resurrected in Presidential Decree No. 1296 for the said elections and pray that respondent
Comelec be enjoined from implementing the same citing the Comelec's own position papers in the Batasan Bayan's last
session on January 27, 1978 that "block voting would only make a mockery of the elections, that it is associated with
electoral frauds and malpractices, that adopting it would seemingly insured political advantage to the candidates of the
administration and, therefore, the credibility of the election would be impaired because of it." 7
I vote for the granting of the petitions and for the outlawing of the block voting scheme on the following grounds.
1. The block voting scheme offends the due process and equal protection clauses of the Constitution and is furthermore
proscribed by the express injunction of the new provision in Article XII, section 9 (1) of the 1973 Constitution that "Bona
fide candidates for any public office shall be free from any form of harassment and discrimination."
Petitioner Peralta as an independent La Union candidate complains with reason that he is unfairly discriminated against
and prejudiced by the block voting scheme in that "there are three ways to vote for a KIBALI [Kilusang ng Bagong
Lipunan] candidate: (1) by writing name, (2) by writing KIBALI and (3) by writing NACIONALISTA, on the ballot. On the
other hand, there is but one way to vote for an independent, like petitioner, only by writing name." 8Actually, the arbitrary
and oppressive edge given the KBL candidate against an independent candidate amounts to 6 to 1 for judicial notice may
be taken of the ballot subject of the petition in Case L-47883 entitled "Lakas ng Bayan (Laban) vs. Comelec" complaining
against the double listing of KBL candidates in Metro Manila where the Comelec recognizes three additional ways of
voting for a KBL candidate viz by writing (4) KBL (5) NP (for Nacionalista Party) or (6) just a plain N unless enjoined by the
Court in said pending case. Said petitioner further aptly observes that "under martial law where the freedom, privileges
and immunities of the citizens are curtailed or suspended, the evils of block voting are enhanced to a hundredfold." 9
2. Historically, it may be noted that block voting was repudiated by the people through Congress which abolished block
voting in 1951 and never reinstituted the same. As observed by the former Senator Jovito Salonga, "(B)lock voting was
used after the Second World War in two elections. In the 1947 elections, the administration almost wiped out the
opposition. In the 1949 elections, through the use of block voting, massive frauds were committed and facilitated by the
party in power. The two great oppositionists at the time, Jose P. Laurel and Claro M. Recto who headed the senatorial
slate and the men who ran with them, became easy victi of block voting. So great was the indignation of the people that
Congress had to abolish the optional block voting scheme in March, 1951. ... Block voting makes it easy for fake ballots to
be used with maximum effect. Twenty-one names of candidates in Metro Manila need not be written out, only the name of
the political party or group. Block voting makes it easy to verify whether the voter who has been bribed will vote according
to previous understanding. If he finishes accomplishing ballot in, let us say, five seconds, the one assigned to watch him
can readily conclude that the voter complied with part of the bargain. One who writes out 21 names on ballot cannot finish
the task in five seconds." 10
When taken against the backdrop of 5- years of martial law and its restraints without any political activity so much so
that the main opposition party, the Liberal Party, has been urged in vain to take part in the elections and the government's
ticket of KBL candidates throughout the country are all but unopposed "in an awesome display of power" with only three
reported "quixotic" pockets of opposition in Metro Manila, Region V (Bicolandia) and Region VII (Central Visayas), 11 the
"invidious discrimination" that is inflicted by ,the block voting scheme upon the opposition and independent candidates
calls for judicial protection of their constitutionally protected rights of due process and equal protection. This is all the more
so since the block voting scheme that has been revived is closer to the pre-war scheme (under Commonwealth Act 666)
of practically compulsory straight party balloting whereby the writing of the name of the party
now cancels and invalidates the written names of the candidate(s) not member(s) of said party 12 (whereas in the prewar
scheme, the writing of the party's name prevailed over the individual candidates as distinguished from the postwar
scheme in 1947 and 1949 (under Rep. Act 180) which provided that the in. individual candidates' names as written
prevailed over the party's. 13 It has thus been noted that "since the administration slate has more advantages than the
opposition, it assumes a heavier burden in being fair." 14
3. The majority's thesis that "in other jurisdictions ballots providing for optional straight party voting have been accepted as
a standard form" 15 and that there is reasonable basis for favoring official candidates against independent candidates who
are free to avail of such advantages "by joining a political party, group or aggrupation" 16 with the observation that block
voting "favors the strongly organized parties or groups and tends to prevent the proliferation of political parties or
groups" 17 may hold true for other times, places and climes but y not in the context of the present martial law situation and
the Philippine experience.
It is a matter of daily comment in the press that the government's KBL slate is running practically unopposed and there
certainly is no proliferation of parties or groups to even watch out for. Independent candidates under such circutances will
not find it easy to follow the majority's solution that they become official candidates of non-existent or non- participating
political parties or groups. Most importantly, aside from the people's repudiation of block voting since 1951, and 1973
Constitution has in effect outlawed the inherent discrimination in block voting against independent candidates through its
new provision that bona fide candidates "shall be free from any form of harassment and discrimination."
This new provision which is not found in the Constitution of other states and jurisdictions manifestly constricts the
classifications heretofore permitted in the application of the general equal protection clause by specifically providing that in
elections for any public office, bona fide candidates may not be subjected to any form of discrimination (such as that of

136
block voting) which might otherwise have been permissible against independent candidates.
Petitioner Reynaldo T. Fajardo who was chairman of the Committee on Political Parties in the 1971 Constitutional
Convention submitted committee's printed report which bears out contention that block voting was outlawed by t new
Constitutional provision. The Committee's explanatory note on the draft of said provision (which was adopted practically
verbatim save that protection against harassment was added) further emphasized that t provision is to be understood as
having special reference to unaffiliated or partyless bona fide candidates. Extending to them the equal protection of the
law is but a matter of elementary justice. If the State guarantees equal protection to groups of individuals, such as political
parties, it is but logical that the same protection be made available to individuals, separately, without discrimination in any
form.
4. The basic consideration is the principle of due process and equal protection of the laws as enshrined in the very first
clause of the Bill of Rights which negates state power or that of the party in power to act in an arbitrary or oppressive
manner and stands as the embodiment of the sporting idea of fair play and the guaranty of justice. In all this,U.S. Chief
Justice Erl Warren had well stressed that it is the spirit and not the form of law that makes justice alive.
The late Justice Jose P. Laurel (hielf a victim of block voting in the 1949 elections 18 had earlier enjoined us that
"(R)epublicanism, in so far as it implies the adoption of a representative type of government, necessarily points to the
enfranced citizen as a particle of popular sovereignty and as the ultimate source of the established authority. He has a
voice in Government and whenever possible it is the solemn duty of the judiciary, when caged upon to act in justifiable
cases, to give it efficacy and not to stifle or frustrate it." 19
It was in t same spirit that U.S. Chief Justice Earl Warren in formulating the "one man, one vote" formula as the
constitutional rule to be followed in the reapportionment of representation in State legislatures 20 held in upholding
plaintiffs' contention that they were denied "equal suffrage in free and equal elections ... and the equal protection of the
laws", that "... (E)specially since the right to exercise the france in a free and unimpaired manner is preservative of other
basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously
scrutinized ..." and "a denial of constitutionally protected rights demands judicial protection; our oath and our office require
no less of us. ... To the extent that a citizen's right to vote is debased, he is that much less a citizen. "
5. Finally, petitioner Juan T. David has raised the prejudicial questions that since P.D. 1269, the 1978 Election Code, has
not yet been published in the Official Gazette (as per certification dated February 16, 1978 of the Government Printing
Office 21) the provisions thereof particularly those imposing penal sanctions may not be enforced until after the lapse of 15
days from publications in the Official Gazette and that block voting as therein provided may not be enforced because the
Election Code of 1971 (which does not provide for block voting) should be deemed as still in force and as not having been
legally repealed.
This has sound basis under the pertinent laws, Article 2 of the Civil Code which provides that "Laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided ... "and
Section 11 of the Revised Administrative Code which likewise requires that "(W)hen laws take effect. A statute passed
by the Philippine Legislature (National Assembly) shall, in the absence of special provision, take effect at the beginning of
the fifteenth day after the completion of the publication of the statute in the Official Gazette, the date of issue being
excluded. For the purpose of fixing such date the Gazette is conclusively presumed to be published on the day indicated
therein as the date of issue.
The Court held through then Chief Justice Ricardo Paras in People vs. de Dios 22 that "it is an elementary rule of fair play
and justice that a reasonable opportunity to be informed must be afforded to the people who are commanded to obey
before they can be punished for its violation" citing the general principle enunciated in an earlier case 23 that "before the
public is bound by its contents, especially its penal provisions, a law, regulation or circular must first be published and the
people officially and specially informed of said contents and its penalties."
Such legal requirement of publication in the Official Gazette for the effectivity of laws is vital and indispensable and may
not be waved away with the contention that copies of the election decree have been published and distributed or the
people advised thereof through the newspapers. In a time of proliferating decrees, orders and letters of instructions which
all form part of the law of the land, the requirements of due process and of the Rules of Law demand that the Official
Gazette as the official government reporsitory promulgate and publish the texts of all such decrees, orders and
instructions so that the people may know where to obtain their official and specific contents.
MUOZ PALMA, J., dissenting:
The Constitution shall be the bedrock of our Republic.
(From the Speech of President Ferdinand E. Marcos at the opening of the 1971 Constitution
Convention, June 1, 1971)
La Constitution, ... es la ley de la paternidad y de los afectos del poder creador, que rige la en sus
diversos ordenes. Obra del pueblo, y no de un partido, ha de ser, por tanto, la Constitution para
que el pueblo deba amarla y defenderla y los governantes respetarla y cumplirla. ... *
(From the Speech of President Claro M. Recto at the opening of the 1934 Constitutional

137
Convention, July 30, 1934; emphasis supplied)
The Malolos Constitution "is the most glorious expression of the noble aspirations of the Filipino a mirror of their culture
and a clear proof before the world of their capacity to govern themselves.
(From the Speech of President Emilio Aguinaldo, Proclamation of the Malolos Constitution,
January 21, 1899)
It was in the spirit of the transcendental principles enunciated in the foregoing statements and of similarly inspired
pronouncements, too many to be quoted, of our forbears and leaders of thought and of government of the past, that I
wrote my dissenting Opinion in Sanidad, et al. v. COMELEC, et al., L-44640, October 12, 1976, and the accompanying
cases.
What was challenged in Sanidad was the constitutionality of Presidential Decree Nos. 991 and 1033 which called for a
referendum-plebiscite on October 16, 1976, on certain proposed constitutional amendments, one of which was to
substitute the interim National Assembly with an Interim Batasang Pambansa. I expressed there the opinion that the
incumbent President did not have constituent powers, that is, the power to propose amendments to the 1973
Constitution, and that if there was need of amending the Constitution the amendatory process provided for in Art. XVI,
Section 1 (1) and (2), or Art. XVII, Section 15, of the 1973 Constitution, was to be followed. I said:
xxx xxx xxx
l. That sovereignty resides in the people and all government authority emanates from them is a fundamental,
basic principle of government which cannot be disputed, but when the people have opted to govern theelves
under the mantle of a written Constitution each and every citizen , from the highest to the lowliest, has the sacred
duty to respect and obey the Charter they have so ordained.
xxx xxx xxx
The Filipino people,, wanting to ensure to theelves a democratic republican form of government, have
promulgated a Constitution whereby the power to govern theelves has been entrusted to and distributed among
three branches of government; they have also mandated in clear and unmistakable ter the method by which
provisions in their fundamental Charter may be amended or g done so, the people are bound by these
constitutional limitations. For while there is no surrender or abdication of the people's ultimate authority to amend,
revised, or adopt a new Constitution, sound reasondemands that they keep theelves within the procedural bounds
of the existing fundamental law. (73 SCRA 455, 456)
My view in Sanidad was reiterated by me in Dela Llana v. COMELEC et al., L-47245, and Hidalgo v. COMELEC, et al., L47239, December 9, 1977. The issue was on the validity of another national referendum for December 17, 1977, which
referred to the 1976 amendments Nos. 3 and 7 of the Constitution. In these two cases, I stated that inasmuch as
amendments Nos. 3 and 7 were not validly proposed and ratified, Presidential Decree No. 1229 which implements said
amendments is nun and void.
The cases now before Us raise legal questions which center on the election of representatives to the Interim Batasang
Pambansa. Without necessity of giving my views on the different issues raised in these petitions, I vote to declare as
unconstitutional the challenged portions of "The 1978 Election Code" as they are without constitutional basis, conformably
to my opinion in Sanidad that the Interim Batasang Pambansa is not validly constituted and suffers from a basic
constitutional infirmty.
I strongly reiterate here what I wrote in Sanidad that the only possible measure that can lead our country and people to a
"condition of normalcy" is the lifting and ending of the state of martial rule and the implementation of the Transitory
Provisions of the 1973 Constitution for the convening of the Interim National Assembly in order that the latter may carry
out the objectives for its creation as decreed in the 1973 Constitution. (supra. p. 46.)

138
EN BANC
[G.R. Nos. L-6025-26. July 18, 1956.]
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. AMADO V. HERNANDEZ, ET AL.,DefendantsAppellants.
RESOLUTION
CONCEPCION, J.:
This refers to the petition for bail filed by Defendant Appellant Amado Hernandez on June 26, 1954, and renewed on
December 22, 1955. A similar petition, filed on December 28, 1953, had been denied by a resolution of this court dated
February 2, 1954. Although not stated in said resolution, the same was due mainly to these
circumstances:chanroblesvirtuallawlibrary The prosecution maintains that Hernandez is charged with, and has been
convicted of, rebellion complexed with murders, arsons and robberies, for which the capital punishment, it is claimed, may
be imposed, although the lower court sentenced him merely to life imprisonment. Upon the other hand, the defense
contends, among other things, that rebellion cannot be complexed with murder, arson, or robbery. Inasmuch as the issue
thus raised had not been previously settled squarely, and this court was then unable, as yet, to reach a definite conclusion
thereon, it was deemed best not to disturb, for the time being, the course of action taken by the lower court, which denied
bail to the movant. After mature deliberation, our considered opinion on said issue is as follows:chanroblesvirtuallawlibrary
The first two paragraphs of the amended information in this case read:chanroblesvirtuallawlibrary
The undersigned accuses (1) Amado V. Hernandez alias Victor alias Soliman alias Amado alias AVH alias Victor Soliman,
(2) Guillermo Capadocia alias Huan Bantiling alias Cap alias G. Capadocia, (3) Mariano P. Balgos alias Bakal alias Tony
Collantes alias Bonifacio, (4) Alfredo Saulo alias Elias alias Fred alias A.B.S. alias A.B., (5) Andres Baisa, Jr. alias Ben
alias Andy (6) Genaro de la Cruz alias Gonzalo alias Gorio alias Arong, (7) Aquilino Bunsol alias Anong, (8) Adriano
Samson alias Danoy, (9) Juan J. Cruz alias Johnny 2, alias Jessie Wilson alias William, (10) Jacobo Espino, (11) Amado
Racanday, (12) Fermin Rodillas, and (13) Julian Lumanog alias Manue, of the crime of rebellion with multiple murder,
arsons and robberies committed as follows:chanroblesvirtuallawlibrary
That on or about March 15, 1945, and for some time before the said date and continuously thereafter until the present
time, in the City of Manila, Philippines, and the place which they had chosen as the nerve center of all their rebellious
activities in the different parts of the Philippines, the said accused, conspiring, confederating, and cooperating with each
other, as well as with the thirty-one (31) Defendants charged in criminal cases Nos. 14071, 14082, 14270, 14315, and
14344 of the Court of First Instance of Manila (decided May 11, 1951) and also with others whose whereabouts and
identities are still unknown, the said accused and their co-conspirators, being then officers and/or members of, or
otherwise associated with the Congress of Labor Organizations (CLO) formerly known as the Committee on Labor
Organization (CLO), an active agency, organ, and instrumentality of the Communist Party of the Philippines (P.K.P.), with
central offices in Manila and chapters and affiliated or associated labor unions and other mass organizations in different
places in the Philippines, and as such agency, organ, and instrumentality, fully cooperates in, and synchronizes its
activities with the rebellious activities of the Hukbong Magpalayang Bayan, (H.M.B.) and other organs, agencies, and
instrumentalities of the Communist Party of the Philippines (P.K.P.) to thereby assure, facilitate, and effect the complete
and permanent success of the armed rebellion against the Republic of the Philippines, as the herein Defendants and their
co-conspirators have in fact synchronized the activities of the CLO with the rebellious activities of the HMB and other
agencies, organs and instrumentalities of the Communist Party of the Philippines and have otherwise master- minded or
promoted the cooperative efforts between the CLO and HMB and other agencies, organs, and instrumentalities of the
P.K.P. in the prosecution of the rebellion against the Republic of the Philippines, and being then also high ranking officers
and/or members of, or otherwise affiliated with, the Communist Party of the Philippines (P.K.P.), which is now actively
engaged in an armed rebellion against the Government of the Philippines through acts therefor committed and planned to
be further committed in Manila and other places in the Philippines, and of which party the Hukbong Mapagpalaya ng
Bayan (HMB), otherwise or formerly known as the Hukbalahaps (Huks), is the armed force, did then and there willfully,
unlawfully and feloniously help, support, promote, maintain, cause, direct and/or command the Hukbong Mapagpalaya ng
Bayan (HMB) or the Hukbalahaps (Huks) to rise publicly and take arms against the Republic of the Philippines, or
otherwise participate in such armed public uprising, for the purpose of removing the territory of the Philippines from the
allegiance to the government and laws thereof as in fact the said Hukbong Mapagpalaya ng Bayan or Hukbalahaps
have risen publicly and taken arms to attain the said purpose by then and there making armed raids, sorties and
ambushes, attacks against police, constabulary and army detachments as well as innocent civilians, and as a necessary
means to commit the crime of rebellion, in connection therewith and in furtherance thereof, have then and there
committed acts of murder, pillage, looting, plunder, arson, and planned destruction of private and public property to create
and spread chaos, disorder, terror, and fear so as to facilitate the accomplishment of the aforesaid purpose, as follows, to
wit:chanroblesvirtuallawlibrary
Then follows a description of the murders, arsons and robberies allegedly perpetrated by the accused as a necessary
means to commit the crime of rebellion, in connection therewith and in furtherance thereof.
Article 48 of the Revised Penal Code provides that:chanroblesvirtuallawlibrary
When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for
committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum
period.
It is obvious, from the language of this article, that the same presupposes the commission of two (2) or more crimes, and,
hence, does not apply when the culprit is guilty of only one crime.
Article 134 of said code reads:chanroblesvirtuallawlibrary

139
The crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the
purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part
thereof, of any body of land, naval or other armed forces, or of depriving the Chief Executive or the Legislature, wholly or
partially, of any of their powers or prerogatives.
Pursuant to Article 135 of the same code any person, merely participating or executing the commands of others in a
rebellion shall suffer the penalty of prision mayor in its minimum period.
The penalty is increased to prision mayor and a fine not to exceed P20,000 for any person who promotes, maintains or
heads a rebellion or insurrection or who, while holding any public office or employment, takes part
therein:chanroblesvirtuallawlibrary
1.
2.
3.
4.
5.

engaging in war against the forces of the government,

destroying property, or
committing serious violence,
exacting contributions or
diverting public funds from the lawful purpose for which they have been appropriated.

Whether performed singly or collectively, these five (5) classes of acts constitute only one offense, and no more, and are,
altogether, subject to only one penalty prision mayor and a fine not to exceed P20,000. Thus for instance, a public
officer who assists the rebels by turning over to them, for use in financing the uprising, the public funds entrusted to his
custody, could neither be prosecuted for malversation of such funds, apart from rebellion, nor accused and convicted of
the complex crime of rebellion with malversation of public funds. The reason is that such malversation is inherent in the
crime of rebellion committed by him. In fact, he would not be guilty of rebellion had he not so misappropriated said funds.
In the imposition, upon said public officer, of the penalty for rebellion it would even be improper to consider the
aggravating circumstance of advantage taken by the offender of his public position, this being an essential element of the
crime he had perpetrated. Now, then, if the office held by said offender and the nature of the funds malversed by him
cannot aggravate the penalty for his offense, it is clear that neither may it worsen the very crime committed by the culprit
by giving rise, either to an independent crime, or to a complex crime. Needless to say, a mere participant in the rebellion,
who is not a public officer, should not be placed at a more disadvantageous position than the promoters, maintainers or
leaders of the movement, or the public officers who join the same, insofar as the application of Article 48 is concerned.
One of the means by which rebellion may be committed, in the words of said Article 135, is by engaging in war against
the forces of the government and committing serious violence in the prosecution of said war. These expressions imply
everything that war connotes, namely; chan roblesvirtualawlibraryresort to arms, requisition of property and services,
collection of taxes and contributions, restraint of liberty, damage to property, physical injuries and loss of life, and the
hunger, illness and unhappiness that war leaves in its wake except that, very often, it is worse than war in the
international sense, for it involves internal struggle, a fight between brothers, with a bitterness and passion or ruthlessness
seldom found in a contest between strangers. Being within the purview of engaging in war and committing serious
violence, said resort to arms, with the resulting impairment or destruction of life and property, constitutes not two or more
offense, but only one crime that of rebellion plain and simple. Thus, for instance, it has been held that the crime of
treason may be committed by executing either a single or similar intentional overt acts, different or similar but distinct, and
for that reason, it may be considered one single continuous offense. (Guinto vs. Veluz, 77 Phil., 801, 44 Off. Gaz., 909.)
(People vs. Pacheco, 93 Phil., 521.)
Inasmuch as the acts specified in said Article 135 constitute, we repeat, one single crime, it follows necessarily that said
acts offer no occasion for the application of Article 48, which requires therefor the commission of, at least, two crimes.
Hence, this court has never in the past, convicted any person of the complex crime of rebellion with murder. What is
more, it appears that in every one of the cases of rebellion published in the Philippine Reports, theDefendants were
convicted of simple rebellion, although they had killed several persons, sometimes peace officers (U. S. vs. Lagnason, 3
Phil., 472; chan roblesvirtualawlibraryU. S. vs. Baldello, 3 Phil., 509, U. S. vs. Ayala, 6 Phil., 151; chan
roblesvirtualawlibraryLeague vs. People, 73 Phil., 155).
Following a parallel line are our decisions in the more recent cases of treason, resulting from collaboration with the
Japanese during the war in the Pacific. In fact, said cases went further than the aforementioned cases of rebellion, in that
the theory of the prosecution to the effect that the accused in said treason cases were guilty of the complex crime of
treason with murder and other crimes was expressly and repeatedly rejected therein. Thus, commenting on the decision
of the Peoples Court finding the accused in People vs. Prieto (80 Phil., 138, 45 Off. Gaz., 3329) guilty of cralaw the
crime of treason complexed by murder and physical injuries and sentencing him to death, and on the contention of the
Solicitor General that Prieto had committed the complex crime of treason with homicide, this court, speaking through Mr.
Justice Tuason, said:chanroblesvirtuallawlibrary
The execution of some of the guerrilla suspects mentioned in these counts and the infliction of physical injuries on others
are not offenses separate from treason. Under the Philippine treason law and under the United States constitution defining
treason, after which the former was patterned, there must concur both adherence to the enemy and giving him aid and
comfort. One without the other does not make treason.
In the nature of things, the giving of aid and comfort can only be accomplished by some kind of action. Its very nature
partakes, of a deed or physical activity as opposed to a mental operation. (Cramer vs. U.S., ante.) This deed or physical
activity may be, and often is, in itself a criminal offense under another penal statute or provision. Even so, when the deed
is charged as an element of treason it becomes identified with the latter crime and cannot be the subject of a separate
punishment, or used in combination with treason to increase the penalty as Article 48 of the Revised Penal Code
provides. Just as one cannot be punished for possessing opium in a prosecution for smoking the identical drug, and a
robber cannot be held guilty of coercion or trespass to a dwelling in a prosecution for robbery, because possession of
opium and force and trespass are inherent in smoking and in robbery respectively, so may not a Defendant be made liable
for murder as a separate crime or in conjunction with another offense where, as in this case, it is averred as a constitutive
ingredient of treason cralaw . Where murder or physical injuries are charged as overt acts of treason cralaw they cannot
be regarded separately under their general denomination. (Italics supplied.)

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Accordingly, we convicted the accused of simple treason and sentenced him to life imprisonment.
In People vs. Labra, 81 Phil., 377, 46 Off. Gaz., Supp. No. 1, p. 159, we used the following language:
The lower court found Appellant guilty not only of treason, but of murder, for the killing of Tomas Abella, and, following the
provisions of Article 48 of the Revised Penal Code sentenced him to death, the maximum penalty provided by article 114.
The lower court erred in finding Appellant guilty of the murder of Tomas Abella. The arrest and killing of Tomas Abella for
being a guerilla, is alleged in count 3 of the information, as one of the elements of the crime of treason for
which Appellant is prosecuted. Such element constitute a part of the legal basis upon which Appellant stands convicted of
the crime of treason. The killing of Tomas Abella cannot be considered as legal ground for convicting Appellant of any
crime other than treason. The essential elements of a given crime cannot be disintegrated in different parts, each one
stand as a separate ground to convict the accused of a different crime or criminal offense. The elements constituting a
given crime are integral and inseparable parts of a whole. In the contemplation of the law, they cannot be used for double
or multiple purposes. They can only be used for the sole purpose of showing the commission of the crime of which they
form part. The factual complexity of the crime of treason does not endow it with the functional ability of worm multiplication
or amoeba reproduction. Otherwise, the accused will have to face as many prosecutions and convictions as there are
elements in the crime of treason, in open violation of the constitutional prohibition against double jeopardy. (Italics
supplied.)
The same conclusion was reached in People vs. Alibotod 82 Phil., 164, 46 Off. Gaz., 1005, despite the direct participation
of the Defendant therein in the maltreatment and killing of several persons.
In People vs. Vilo 82 Phil., 524, 46 Off. Gaz., 2517, we held:
The Peoples Court, however, erred in classifying the crime as treason with murder. The killing of Amado Satorre and one
Segundo is charged as an element of treason, and it therefore becomes identified with the latter crime, and cannot be the
subject of a separate punishment or used in combination with treason to increase the penalty as Article 48 of the Revised
Penal Code provides. (People vs. Prieto, L-399, 45 Off. Gaz. 3329. See, also People vs. Labra, L-886, 46 Off. Gaz.,
[Supp. to No. 1], 159.) (Italics supplied.)
To the same effect was our decision in People vs. Roble 83 Phil., 1, 46 Off. Gaz., 4207. We stated therein:
The court held that the facts alleged in the information is a complex crime of treason with murders, with the result that the
penalty provided for the most serious offense was to be imposed on its maximum degree. Viewing the case from the
standpoint of modifying circumstances, the court believed that the same result obtained. It opined that the killings were
murders qualified by treachery and aggravated by the circumstances of evident premeditation, superior strength, cruelty,
and an armed band.
We think this is error. The tortures and murders set forth in the information are merged in and formed part of the treason.
They were in this case the overt acts which, besides traitorous intention supplied a vital ingredient in the crime. (Italics
supplied.)
The accused in People vs. Delgado 83 Phil., 9, 46 Off. Gaz., 4213, had been convicted by the Peoples Court of the
crime of treason complexed with the crime of murder and sentenced to the extreme penalty. In our decision, penned by
Mr. Justice Montemayor, we expressed ourselves as follows:
The Appellant herein was and is a Filipino citizen. His adherence to the Japanese forces of occupation and giving them
aid and comfort by acting as their spy, undercover man, investigator, and even killer when necessary to cow and compel
the inhabitants to surrender their firearms and disclose information about the guerrillas has been fully established. His
manner of investigation and maltreatment of some of his victims like Tereso Sanchez and Patricio Suico, was so cruel,
brutal and inhuman that it is almost unbelievable that a Filipino can commit and practice such atrocities especially on his
own countrymen. But, evidently, war, confusion and opportunism can and do produce characters and monster unknown
during peace and normal times.
The Peoples Court found the Appellant guilty of treason complexed with murder. The Solicitor General, however,
maintains that the offense committed is simple treason, citing the doctrine laid down by this court in the case of People vs.
Prieto, (L-399, 45 Off. Gaz., 3329) but accompanied by the aggravating circumstance under Article 14, paragraph 21, of
the Revised Penal Code, and not compensated by any mitigating circumstance, and he recommends the imposition of the
penalty of death. We agree with the Solicitor General that on the basis of the ruling of this court in the case of People vs.
Prieto, supra, the Appellantmay be convicted only a treason, and that the killing and infliction of physical injuries
committed by him may not be separated from the crime of treason but should be regarded as acts performed in the
commission of treason, although, as stated in said case, the brutality with which the killing or physical injuries were carried
out may be taken as an aggravating circumstance. (Italics supplied.)
and reduced the penalty from death to life imprisonment and a fine of P20,000.
Identical were the pertinent features of the case of People vs. Adlawan, 83 Phil., 194, 46 Off. Gaz., 4299, in which,
through Mr. Justice Reyes (A), we declared:
cralaw we find merit in the contention that Appellant should have not been convicted of the so called Complex crime of
treason with murder, robbery, and rape. The killings, robbery, and raping mentioned in the information are therein alleged
not as specific offenses but as mere elements of the crime of treason for which the accused is being prosecuted. Being
merged in and identified with the general charged they cannot be used in combination with the treason to increase the
penalty under Article 48 of the Revised Penal Code. (People vs. Prieto, L-399, January 29, 1948, 45 Off. Gaz.,
3329.) Appellant should, therefore, be held guilty of treason only. (Italics supplied.)
In People vs. Suralta, 85 Phil., 714, 47 Off. Gaz., 4595, the language used was:
cralaw But the Peoples Court erred in finding the Appellant guilty of the complex crime of treason with murder, because
murder was an ingredient of the crime of treason, as we have heretofore held in several cases. (Italics supplied.)
This was reiterated in People vs. Navea, 87 Phil., 1, 47 Off. Gaz., Supp. No. 12, p. 252:

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The Solicitor General recommends that the Appellant be sentenced for the complex crime of treason with murder. We
have already ruled, however, that where, as in the present case, the killing is charged as an element of treason, it
becomes identified with the latter crime and cannot be the subject of a separate punishment, or used in combination with
treason to increase the penalty as Article 48 of the Revised Penal Code provides. (Italics supplied.)
The question at bar was, also, taken up in the case of Crisologo vs. People and Villalobos (94 Phil., 477), decided on
February 26, 1954. The facts and the rule therein laid down are set forth in our unanimous decision in said case, from
which we quote:
The Petitioner Juan D. Crisologo, a captain in the USAFFE during the last world war and at the time of the filing of the
present petition a lieutenant colonel in the Armed Forces of the Philippines, was on March 12, 1946, accused of treason
under Article 114 of the Revised Penal Code in an information filed in the Peoples Court. But before the accused could be
brought under the jurisdiction of the court, he was on January 13, 1947, indicted for violations of Commonwealth Act No.
408, otherwise known as the Articles of War, before a military court created by authority of the Army Chief of Staff, the
indictment containing three charges, two of which, the first and third, were those of treason consisting in giving information
and aid to the enemy leaving to the capture of USAFFE officers and men and other persons with anti-Japanese reputation
and in urging members of the USAFFE to surrender and cooperate with the enemy, while the second was that of having
certain civilians filled in time of war. Found innocent of the first and third charges but guilty of the second, he was on May,
8, 1947, sentenced by the military court to life imprisonment.
With the approval on June 17, 1948, of Republic Act No. 311 abolishing the Peoples Court, the criminal case in that court
against the Petitioner was, pursuant to the provisions of said Act, transferred to the Court of First Instance of Zamboanga
and there the charges of treason were amplified. Arraigned in that court upon the amended
information, Petitioner presented a motion to quash, challenging the jurisdiction of the court and pleading double jeopardy
because of his previous sentence in the military court. But the court denied the motion and, after Petitioner had pleaded
not guilty, proceeded to trial, whereupon, the present petition for certiorari and prohibition was filed in this court to have the
trial judge desist from proceeding with the trial and dismiss the case.
It is, however, claimed that the offense charged in the military court different from that charged in the civil court and that
even granting that the offense was identical the military court had no jurisdiction to take cognizance of the same because
the Peoples Court had previously acquired jurisdiction over the case with the result that the conviction in the court martial
was void. In support of the first point, it is urged that the amended information filed in the Court of First Instance of
Zamboanga contains overt acts distinct from those charged in the military court. But we note that while certain overt acts
specified in the amended information in the Zamboanga court were not specified in the indictment in the court martial,
they all are embraced in the general charge of treason, which is a continuous offense and one who commits it is not
criminally liable for as many crimes as there are overt acts, because all overt act he has done or might have done for that
purpose constitute but a single offense. (Guinto vs. Veluz, 44. Off. Gaz., 909; chan roblesvirtualawlibraryPeople vs.
Pacheco, L-4750, promulgated July 31, 1953.) In other words, since the offense charged in the amended information in
the Court of First Instance of Zamboanga is treason, the fact that the said information contains an enumeration of
additional ovart acts not specifically mentioned in the indictment before the military court is immaterial since the new
alleged overt acts do not in themselves constitute a new and distinct offense from that of treason, and this court has
repeatedly held that a person cannot be found guilty of treason and at the same time also guilty of overt acts specified in
the information for treason even if those overt acts, considered separately, are punishable by law, for the simple reason
that those overt acts are not separate offenses distinct from that of treason but constitute ingredients thereof. (Italics
supplied.)
Thus, insofar as treason is concerned, the opinion of this court, on the question whether said crime may be complexed
with murder, when the former was committed through the latter, and it is so alleged in the information, had positively and
clearly crystalized itself in the negative as early as January 29, 1948.
We have not overlooked the decision in People vs. Labra (L-1240, decided on May 12, 1949), the dispositive part of which
partly reads:
Wherefore, the verdict of guilty must be affirmed. Articles 48, 114 and 248 of the Revised Penal Code are applicable to
the offense of treason with murder. However for lack of sufficient votes to impose the extreme penalty, the Appellant will
be sentenced to life imprisonment cralaw ..
Although it mentions Articles 48 and 248 of the Revised Penal Code and the offense of treason with murder, it should be
noted that we affirmed therein the action of the Peoples Court, which, according to the opening statement of our decision,
convicted Labra of treason aggravated with murder. Besides, the applicability of said articles was not discussed in said
decision. It is obvious, from a mere perusal thereof, that this court had no intention of passing upon such question.
Otherwise, it would have explained why it did not follow the rule laid down in the previous cases of Prieto, Labra (August
10, 1948), Alibotod, Vilo, Roble, Delgado and Adlawan (supra), in which the issue was explicitly examined and decided in
the negative. Our continued adherence to this view in the subsequent cases of Suralta, Navea, Pacheco and Crisologo,
without even a passing reference to the second Labra case, shows that we did not consider the same as reflecting the
opinion of the court on said question. At any rate, insofar as it suggests otherwise, the position taken in the second Labra
case must be deemed reversed by our decisions in said cases of Suralta, Navea, Pacheco and Crisologo.
It is true that treason and rebellion are distinct and different from each other. This does not detract, however, from the rule
that the ingredients of a crime form part and parcel thereof, and, hence, are absorbed by the same and cannot be
punished either separately therefrom or by the application of Article 48 of the Revised Penal Code. Besides there is more
reason to apply said rule in the crime of rebellion than in that of treason, for the law punishing rebellion (Article 135,
Revised Penal Code) specifically mentions the act of engaging in war and committing serious violence among its essential
elements thus clearly indicating that everything done in the prosecution of said war, as a means necessary therefor, is
embraced therein unlike the provision on treason (Article 114, Revised Penal Code) which is less explicit thereon.
It is urged that, if the crime of assault upon a person in authority or an agent of a person in authority may be committed
with physical injuries (U. S. vs. Montiel, 9 Phil., 162), homicide (People vs. Lojo, 52 Phil., 390) and murder (U. S. vs.
Ginosolongo, 23 Phil., 171; chan roblesvirtualawlibraryU. S. vs. Baluyot, 40 Phil., 385), and rape may be perpetrated with

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physical injuries (U. S. vs. Andaya, 34 Phil., 690), then rebellion may, similarly, be complexed with murder, arson, or
robbery. The conclusion does not follow, for engaging in war, serious violence, physical injuries and destruction of life and
property are inherent in rebellion, but not in assault upon persons in authority or agents of persons in authority or in rape.
The word rebellion evokes, not merely a challenge to the constituted authorities, but, also, civil war, on a bigger or lesser
scale, with all the evils that go with it, whereas, neither rape nor assault upon persons in authority connotes necessarily, or
even generally, either physical injuries, or murder. 1
In support of the theory that a rebel who kills in furtherance of the insurrection is guilty of the complex crime of rebellion
with murder, our attention has been called to Article 244 of the old Penal Code of the Philippines, reading:
Los delitos particulares cometidos en una rebelion o sedicion, o con motivo de ellas, seran castigados respectivamente
segun las disposiciones de este Codigo.
Cuando no puedan descubrirse sus autores seran penados como tales los jefes principales de la rebelion o sedicion.
and to the following observations of Cuello Calon (Derecho Penal, Vol. II, p. 110), in relation thereto:
Se establece aqui que el en una rebelion o sedicion, o con motivo de ellas, comete otros delitos (v.g., roba, mata o
lesiona), sera responsable de estos ademas de los delitos de rebelion o sedicion. La dificultad consiste en estos casos en
separar los accidentes de la rebelion o sedicion de los delitos independientes de estas, y como las leyes no contienen en
este punto precepto alguno aplicable, su solucion ha quedado encomendada a los tribunales. La jurisprudencia que estos
han sentado considera como accidentes de la rebelion o sedicion cuya criminalidad queda embedida en la de estos
delitos, y, por tanto, no son punibles especialmente los hechos de escasa gravedad (v.g., atentados, desacatos,
lesiones menos graves); chan roblesvirtualawlibrarypor el contrario, las infracciones graves, como el asesinato o las
lesiones graves, se consideran como delitos independientes de la rebelion o de la sedicion.
It should be noted, however, that said Article 244 of the old Penal Code of the Philippines has not been included in our
Revised Penal Code. If the applicability of Article 48 to rebellion was determined by the existence of said Article 244, then
the elimination of the latter would be indicative of the contrary.
Besides, the crime of rebellion, referred to by Cuello Calon, was that punished in the Spanish Penal Code, Article 243 of
which provides: (Spanish)
Thus, the Spanish Penal Code did not specifically declare that rebellion includes the act of engaging in war against the
forces of the Government and of using serious violence for the purposes stated in Article 134 of the Revised Penal Code.
In view of this express statutory inclusion of the acts of war and serious violence among the ingredients of rebellion in the
Philippines, it is clear that the distinction made by Cuello Calon between grave and less grave offenses committed in the
course of an insurrection cannot be accepted in this jurisdiction. Again, if both classes of offenses are part and parcel of a
rebellion, or means necessary therefor, neither law nor logic justifies the exclusion of the one and the inclusion of the
other. In fact, Cuello Calon admits that the difficulty lies in separating the accidents of rebellion or sedition from the
offenses independent therefrom. Ergo, offenses that are not independent therefrom, but constituting an integral part
thereof committed, precisely, to carry out the uprising to its successful conclusion are beyond the purview of Article
244. Indeed, the above quoted statement of Cuello Calon to the effect that grave felonies committed in the course of an
insurrection are independent therefrom was based upon a decision of the Supreme Court of Spain of February 5, 1872,
which we find reported in the Codigo Penal de Filipinas, by Jose Perez Rubio, as follows:
Spanish language - deleted
It is apparent that said case is not in point. There was no issue therein on whether murder may be complexed with
rebellion or sedition. The question for determination was whether the killers of the victim were guilty of the common crime
of murder, or should have been convicted only of rebellion or sedition. The court adopted the first alternative, not because
of the gravity of the acts performed by the accused, but because they had no political motivation. Moreover,
the Endnote: to said quotation from Cuello Calon readsLos atentados desacatos y lesiones a la autoridad u otros delitos
contra el orden publico cometidos en la sedicion o con motivo de ella, no son delitos distintos de la sedicion, 3 octubre
1903, 19 noviembre 1906; resistencia o acometimiento a la fuerza publica por los sediciosos es accidente de la rebelion,
23 mayo 1890.
Thus in a decision, dated May 2, 1934, the Supreme Court of Spain held:
To the same effect are, likewise, the following:
(Spanish)
These cases are in accord with the text of said Article 244, which refers, not to all offenses committed in the course of a
rebellion or on the occasion thereof, but only to delitos particulares or common crimes. Now, what are delitos
particulares as the phrase is used in said article 244? We quote from Viada:
In short, political crimes are those directly aimed against the political order, as well as such common crimes as may be
committed to achieve a political purpose. The decisive factor is the intent or motive. If a crime usually regarded as
common like homicide, is perpetrated for the purpose of removing from the allegiance to the Government the territory of
the Philippines Islands or any part thereof, then said offense becomes stripped of its common complexion, inasmuch as,
being part and parcel of the crime of rebellion, the former acquires the political character of the latter.
Conformably with the foregoing, the case of murder against the Defendant in U. S. vs. Lardizabal (1 Phil., 729) an
insurgent who killed a prisoner of war because he was too weak to march with the retreating rebel forces, and could not
be left behind without endangering the safety of the latter was dismissed upon the ground that the execution of said
prisoner of war formed part of, and was included in, the crime of sedition, which, in turn, was covered by an amnesty, to
the benefits of which said Defendant was entitled.
True, in U. S. vs. Alfont (1 Phil., 115), the commander of an unorganized group of insurgents was, pursuant to Article 244
of our old Penal Code, convicted of homicide for having shot and killed a woman who was driving a vehicle. But the
complex crime of rebellion with homicide was not considered in that case. Apart from this, the accused failed to
established the relation between her death and the insurrection. What is more, it was neither proved nor alleged that he

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had been prompted by political reasons. In other words, his offense was independent from the rebellion. The latter was
merely the occasion for the commission of the former.
It is noteworthy that the aforementioned decisions of this court and the Supreme Court of Spain in cases of treason,
rebellion and sedition, are in line with the trend in other countries, as well as in the field of international relations. Referring
to the question as to what offenses are political in nature, it was said in In re Ezeta (62 Fed. Rep., 972):
What constitutes an offense of a political character has not yet been determined by judicial authority. Sir James
Stephens, in his work, History of the Criminal Law of England (Volume 2, p. 71), thinks that it should be interpreted to
mean that fugitive criminals are not to be surrendered for extradition crimes if those crimes were incidental to and formed
a part of political disturbances. Mr. John Stuart Mill, in the house of commons, in 1866, while discussing an amendment to
the act of extradition, on which the treaty between England and France was founded, gave this definition: Any offense
committed in the course of or furthering of civil war, insurrection, or political commotion. Hansards Debates Vol. 184, p.
2115. In the Castioni Case, supra, decided in 1891, the question was discussed by the most eminent counsel at the
English bar, and considered by distinguished judges, without a definition being framed that would draw a fixed and certain
line between a municipal or common crime and one of political character. I do not think, said Denman, J., it is necessary
or desirable that we should attempt to put into language, in the shape of an exhaustive definition, exactly the whole state
of things, or every state of things, which might bring a particular case within the description of an offense of a political
character. In that case, Castioni was charged with the murder of one Rossi, by shooting him with a revolver, in the town of
Bellinzona, in the canton of Ticino, in Switzerland. The deceased, Rossi, was a member of the state council of the canton
of Ticino. Castioni was a citizen of the same canton. For some time previous to the murder, much dissatisfaction had been
felt and expressed by a large number of inhabitants of Ticino at the mode in which the political party then in power were
conducting the government of the canton. A request was presented to the government for a revision of the constitution of
the canton and, the government having declined to take a popular vote on that question, a number of the citizens of
Bellinzona, among whom was Castioni, seized the arsenal of the town, from which they took rifles and ammunition,
disarmed the gendarmes, arrested and bound or handcuffed several persons connected with the government, and forced
them to march in front of the armed crowd to the municipal palace. Admission to the palace was demanded in the name of
the people, and was refused by Rossi and another member of the government, who were in the palace. The crowd then
broke open the outer gate of the palace, and rushed in, pushing before them the government officials whom they had
arrested and bound. Castioni, who was armed with a revolver, was among the first to enter. A second door, which was
locked, was broken open, and at this time, or immediately after, Rossi, who was in the passage, was shot through the
body with a revolver, and died, very soon afterwards. Some other shots were fired, but no one else was injured. Castioni
fled to England. His extradition was requested by the federal council of Switzerland. He was arrested and taken before a
police magistrate, as provided by the statute, who held him for extradition. Application was made by the accused to the
high court of justice of England for a writ of habeas corpus. He was represented by Sir Charles Russell, now lord chief
justice. The attorney general, Sir Richard Webster, appeared for the crown, and the solicitor general, Sir Edward Clarke,
and Robert Woodfal, for the federal council of Switzerland. This array of distinguished counsel, and the high character of
the court, commends the case as one of the highest authority. It appeared from an admission by one of the parties
engaged in the disturbances that the death of Rossi was a misfortune, and not necessary for the rising. The opinions of
the judges as to the political character of the crime charged against Castioni, upon the facts stated, is exceedingly
interesting, but I need only refer to the following passages. Judge Denman says:
The question really is whether, upon the facts, it is clear that the man was acting as one of a number of persons engaged
in acts of violence of a political character with a political object, and as part of the political movement and rising in which
he was taking part.
Judge Hawkins, in commenting upon the character of political offenses, said:
I cannot help thinking that everybody knows there are many acts of a political character done without reason, done
against all reason; chan roblesvirtualawlibrarybut at the same time one cannot look too hardly, and weigh in golden scales
the acts of men hot in their political excitement. We know that in heat, and in heated blood, men often do things which are
against and contrary to reason; chan roblesvirtualawlibrarybut none the less an act of this description may be done for the
purpose of furthering and in furtherance of a political rising, even though it is an act which may be deplored and lamented,
as even cruel and against all reason, by those who can calmly reflect upon it after the battle is over.
Sir James Stephens, whose definition as an author has already been cited, was one of the judges, and joined in the
views taken as to the political character of the crime charged against Castioni. The prisoner was discharged. Applying, by
analogy, the action of the English court in that case to the four cases now before me, under consideration, the conclusion
follows that the crimes charged here, associated as they are with the actual conflict of armed forces, are of a political
character.
The draft of a treaty on International Penal Law, adopted by the congress of Montevideo in 1888, and recommended by
the International American Conference to the governments of the Latin-American nations in 1890, contains the following
provisions (Article 23):
Political offenses, offenses subversive of the internal and external safety of a state or common offenses connected with
these, shall not warrant extradition. The determination of the character of the offense is incumbent upon the nations upon
which the demand for extradition is made; chan roblesvirtualawlibraryand its decision shall be made under and according
to the provisions of the law which shall prove to be most favorable to the accused:
I am not aware that any part of this Code has been made the basis of treaty stipulations between any of the American
nations, but the article cited may be at least accepted as expressing the wisdom of leading jurists and diplomats. The
article is important with respect to two of its features: (1) provides that a fugitive shall not be extradited for an offense
connected with a political offense, or with an offense subversive of the internal or external safety of the state; chan
roblesvirtualawlibraryand (2) the decision as to the character of the offense shall be made under and according to the
provisions of the law which shall prove most favorable to the accused. The first provision is sanctioned by Calvo, who,
speaking of the exemption from extradition of persons charged with political offenses, says:

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The exemption even extends to acts connected with political crimes or offenses, and it is enough, as says Mr. Fuastin
Helio; chan roblesvirtualawlibrarythat a common crime be connected with a political act, that it be the outcome of or be in
the outcome of or be in the execution of such, to be covered by the privilege which protects the latter Calvo, Droit Int.
(3me ed.) p. 413, section 1262.
The second provision of the article is founded on the broad principles of humanity found everywhere in the criminal law,
distinguishing its administration with respect to even the worst features of our civilization from the cruelties of barbarism.
When this article was under discussion in the international American conference in Washington, Mr. Silva, of Colombia,
submitted some observations upon the difficulty of drawing a line between an offense of a political character and a
common crime, and incidentally referred to the crime of robbery, in terms worthy of some consideration here. He said:
In the revolutions, as we conduct them in our countries, the common offenses are necessarily mixed up with the political
in many cases. A colleague General Caamao (of Ecuador) knows how we carry on wars. A revolutionist needs horses for
moving, beef to feed his troops, etc.; chan roblesvirtualawlibraryand since he does not go into the public markets to
purchase these horses and that beef, nor the arms and saddles to mount and equip his forces, he takes them from the
first pasture or shop he find at hand. This is called robbery everywhere, and is a common offense in time of peace, but in
time of war it is a circumstance closely allied to the manner of waging it. International American Conference, Vol. 2, p.
615. (Italics supplied.)
We quote the following from Endnote: (23) on pages 249-250, Vol. I, of Cuello Calons aforesaid work on Derecho
Penal.
(Italics supplied.)
Thus, national, as well as international, laws and jurisprudence overwhelmingly favor the proposition that common crimes,
perpetrated in furtherance of a political offense, are divested of their character as common offenses and assume the
political complexion of the main crime of which they are mere ingredients, and, consequently, cannot be punished
separately from the principal offense, or complexed with the same, to justify the imposition of a graver penalty.
There is one other reason and a fundamental one at that why Article 48 of our Penal Code cannot be applied in the
case at bar. If murder were not complexed with rebellion, and the two crimes were punished separately (assuming that
this could be done), the following penalties would be imposable upon the movant, namely: (1) for the crime of rebellion, a
fine not exceeding P20,000 and prision mayor, in the corresponding period, depending upon the modifying circumstances
present, but never exceeding 12 years of prision mayor; chan roblesvirtualawlibraryand (2) for the crime of murder,
reclusion temporal in its maximum period to death, depending upon the modifying circumstances present. In other words,
in the absence of aggravating circumstances, the extreme penalty could not be imposed upon him. However, under Article
48, said penalty would have to be meted out to him, even in the absence of a single aggravating circumstance. Thus, said
provision, if construed in conformity with the theory of the prosecution, would be unfavorable to the movant.
Upon the other hand, said Article 48 was enacted for the purpose of favoring the culprit, not of sentencing him to a penalty
more severe than that which would be proper if the several acts performed by him were punished separately. In the word
of Rodriguez Navarro:
We are aware of the fact that this observation refers to Article 71 (later 75) of the Spanish Penal Code (the counterpart of
our Article 48), as amended in 1908 and then in 1932, reading:
and that our Article 48 does not contain the qualification inserted in said amendment, restricting the imposition of the
penalty for the graver offense in its maximum period to the case when it does not exceed the sum total of the penalties
imposable if the acts charged were dealt with separately. The absence of said limitation in our Penal Code does not, to
our mind, affect substantially the spirit of said Article 48. Indeed, if one act constitutes two or more offenses, there can be
no reason to inflict a punishment graver than that prescribed for each one of said offenses put together. In directing that
the penalty for the graver offense be, in such case, imposed in its maximum period, Article 48 could have had no other
purpose than to prescribe a penalty lower than the aggregate of the penalties for each offense, if imposed separately. The
reason for this benevolent spirit of Article 48 is readily discernible. When two or more crimes are the result of a single act,
the offender is deemed less perverse than when he commits said crimes thru separate and distinct acts. Instead of
sentencing him for each crime independently from the other, he must suffer the maximum of the penalty for the more
serious one, on the assumption that it is less grave than the sum total of the separate penalties for each offense.
Did the framers of Article 48 have a different purpose in dealing therein with an offense which is a means necessary for
the commission of another? To begin with, the culprit cannot, then, be considered as displaying a greater degree of malice
than when the two offenses are independent of each other. On the contrary, since one offense is a necessary means for
the commission of the other, the evil intent is one, which, at least, quantitatively, is lesser than when the two offenses are
unrelated to each other, because, in such event, he is twice guilty of having harbored criminal designs and of carrying the
same into execution. Furthermore, it must be presumed that the object of Article 48, in its entirety, is only one. We cannot
assume that the purpose of the lawmaker, at the beginning of the single sentence of which said article consists, was to
favor the accused, and that, before the sentence ended, the former had a change of heart and turned about face against
the latter. If the second part of Article 48 had been meant to be unfavorable to the accused and, hence, the exact
opposite of the first part each would have been placed in, separate provisions, instead of in one single article. If the first
part sought to impose, upon the culprit, a penalty less grave than that which he would deserve if the two or more offenses
resulting from his single act were punished separately, then this, also, must be the purpose of the second part, in dealing
with an offense which is a necessary means for the commission of another.
The accuracy of this conclusion is borne out by the fact that, since 1850, when the counterpart of our Article 48 was
inserted in the Penal Code of Spain, or for over a century, it does not appear to have been applied by the Supreme Court
thereof to crimes of murder committed in furtherance of an insurrection.
Incidentally, we cannot accept the explanation that crimes committed as a means necessary for the success of a rebellion
had to be prosecuted separately under the provisions of Article 259 of the Penal Code of Spain, which is the counterpart
of Article 244 of our old Penal Code. To begin with, these articles are part of a substantive law. They do not govern the
manner or method of prosecution of the culprits. Then again, said precepts ordain that common crimes committed during

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a rebellion or sedition, or on the occasion thereof, shall be respectively punished according to the provisions of this
Code. Among such provisions was Article 90 (later Article 71, then Article 75) of the Spanish Penal Code, and Article 89
of our old Penal Code, of which Article 48 of the Revised Penal Code of the Philippines is a substantial reproduction.
Hence, had the Supreme Court of Spain or the Philippines believed that murders committed as a means necessary to
attain the aims of an uprising were common crimes, the same would have been complexed with the rebellion or sedition,
as the case may be.
The cases of People vs. Cabrera (43 Phil., 64) and People vs. Cabrera (43 Phil., 82) have not escaped our attention.
Those cases involved members of the constabulary who rose publicly, for the purpose of performing acts of hate and
vengeance upon the police force of Manila, and in an encounter with the latter, killed some members thereof. Charged
with and convicted of sedition in the first case, they were accused of murder in the second case. They pleaded double
jeopardy in the second case, upon the ground that the facts alleged in the information were those set forth in the charge in
the first case, in which they had been convicted. This plea was rejected upon the ground that the organic law prohibited
double jeopardy for the same offense, and that the offense of sedition is distinct and different from that of murder,
although both were the result of the same act.
The question whether one offense was inherent in, or identified with, the other was not discussed or even considered in
said cases. Besides, the lower court applied, in the murder case Article 89 of the old Penal Code which is the
counterpart of Article 48 of the Revised Penal Code but this Court refused to do so. Again, simply because one act may
constitute two or more offenses, it does not follow necessarily that a person may be prosecuted for one after conviction for
the other, without violating the injunction against double jeopardy. For instance, if a man fires a shotgun at another, who
suffers thereby several injuries, one of which produced his death, may he, after conviction for murder or homicide, based
upon said fatal injury, be accused or convicted, in a separate case, for the non-fatal injuries sustained by the victim? Or
may the former be convicted of the complex crime of murder or homicide with serious and/or less serious physical
injuries? The mere formulation of these questions suffices to show that the limitation of the rule on double jeopardy to a
subsequent prosecution for the same offense does not constitute a license for the separate prosecution of two offenses
resulting from the same act, if one offense is an essential element of the other. At any rate, as regards this phase of the
issue, which was not touched in the Cabrera cases, the rule therein laid down must necessarily be considered modified by
our decision in the cases of People vs. Labra (46 Off. Gaz., Supp. No. 1, p. 159) and Crisologo vs. People and Villalobos
(supra), insofar as inconsistent therewith.
The main argument in support of the theory seeking to complex rebellion with murder and other offenses is that war
within the purview of the laws on rebellion and sedition may be waged or levied without killing. This premise does
not warrant, however, the conclusion drawn therefrom that any killing done in furtherance of a rebellion or sedition is
independent therefrom, and may be complexed therewith, upon the ground that destruction of human life is not
indispensable to the waging or levying of war. A person may kill another without inflicting physical injuries upon the latter,
such, for instance, as by poisoning, drowning, suffocation or shock. Yet it is admitted that he who fatally stabs another
cannot be convicted of homicide with physical injuries. So too, it is undeniable that treason may be committed without
torturing or murdering anybody. Yet, it is well-settled that a citizen who gives aid and comfort to the enemy by taking direct
part in the maltreatment and assassination of his (citizens) countrymen, in furtherance of the wishes of said enemy, is
guilty of plain treason, not complexed with murder or physical injuries, the later being as charged and proven mere
ingredients of the former. Now then, if homicide may be an ingredient of treason, why can it not be an ingredient of
rebellion? The proponents of the idea of rebellion complexed with homicide,. etc., have not even tried to answer this
question. Neither have they assailed the wisdom of our aforementioned decisions in treason cases.
The Court is conscious of the keen interest displayed, and the considerable efforts exerted, by the Executive Department
in the apprehension and prosecution of those believed to be guilty of crimes against public order, of the lives lost, and the
time and money spent in connection therewith, as well as of the possible implications or repercussions in the security of
the State. The careful consideration given to said policy of a coordinate and co-equal branch of the Government is
reflected in the time consumed, the extensive and intensive research work undertaken, and the many meetings held by
the members of the court for the purpose of elucidating on the question under discussion and of settling the same.
The role of the judicial department under the Constitution is, however, clear to settle justiceable controversies by the
application of the law. And the latter must be enforced as it is with all its flaws and defects, not affecting its validity
not as the judges would have it. In other words, the courts must apply the policy of the State as set forth in its laws,
regardless of the wisdom thereof.
It is evident to us that the policy of our statutes on rebellion is to consider all acts committed in furtherance thereof as
specified in Articles 134 and 135 of the Revised: Penal Code as constituting only one crime, punishable with one single
penalty namely, that prescribed in said Article 135. It is interesting to note, in this connection, that the penalties
provided in our old Penal Code (Articles 230 to 232) were much stiffer, namely:
1. Life imprisonment to death for the promoters, maintainers and leaders of the rebellion, and, also, for subordinate
officers who held positions of authority, either civil or ecclesiastical, if the purpose of the movement was to proclaim the
independence of any portion of the Philippine territory;
2. Reclusion temporal in its maximum period for said promoters, maintainers and leaders of the insurrection, and for its
subordinate officers, if the purpose of the rebellion was any of those enumerated in Article 229, except that mentioned in
the preceding paragraph;
3. Reclusion temporal: (a) for subordinate officers other than those already adverted to; chan roblesvirtualawlibraryand
(b) for mere participants in the rebellion falling under the first paragraph of No. 2 of Article 174; chan
roblesvirtualawlibraryand
4. Prision mayor in its medium period to reclusion temporal in its minimum period for participants not falling under No.
3.
After the cession of the Philippines to the United States, the rigors of the old Penal Code were tempered. Its
aforementioned provisions were superseded by section 3 of Act No. 292, which reduced the penalty to imprisonment for
not more than ten (10) years and a fine not exceeding $10,000, or P20,000, for every person who incites, sets on foot,

146
assists or engages in any rebellion or insurrection cralaw or who gives aid and comfort to any one so engaging in such
rebellion or insurrection. Such liberal attitude was adhered to by the authors of the Revised Penal Code. The penalties
therein are substantially identical to those prescribed in Act 292. Although the Revised Penal Code increased slightly the
penalty of imprisonment for the promoters, maintainers and leaders of the uprising, as well as for public officers joining the
same, to a maximum not exceeding twelve (12) years of prision mayor, it reduced the penalty of imprisonment for mere
participants to not more than eight (8) years of prision mayor, and eliminated the fine.
This benign mood of the Revised Penal Code becomes more significant when we bear in mind it was approved on
December 8, 1930 and became effective on January 1, 1932. At that time the communists in the Philippines had already
given ample proof of their widespread activities and of their designs and potentialities. Prior thereto, they had been under
surveillance by the agents of the law, who gathered evidence of their subversive movements, culminating in the
prosecution of Evangelista, Manahan (57 Phil., 354; chan roblesvirtualawlibrary57 Phil., 372), Capadocia (57 Phil., 364),
Feleo (57 Phil., 451), Nabong (57 Phil., 455), and others. In fact, the first information against the first two alleged that they
committed the crime of inciting to sedition on and during the month of November, 1930, and for sometime prior and
subsequent thereto.
As if this were not enough, the very Constitution adopted in 1935, incorporated a formal and solemn declaration (Article II,
section 5) committing the Commonwealth, and, then the Republic of the Philippines, to the promotion of social justice.
Soon later, Commonwealth Act No. 103, creating the Court of Industrial Relations, was passed. Then followed a number
of other statutes implementing said constitutional mandate. It is not necessary to go into the details of said legislative
enactments. Suffice it to say that the same are predicated upon a recognition of the fact that a good many of the problems
confronting the State are due to social and economic evils, and that, unless the latter are removed or, least minimized, the
former will keep on harassing the community and affecting the well-being of its members.
Thus, the settled policy of our laws on rebellion, since the beginning of the century, has been one of decided leniency, in
comparison with the laws enforce during the Spanish regime. Such policy has not suffered the slightest alteration.
Although the Government has, for the past five or six years, adopted a more vigorous course of action in the
apprehension of violators of said law and in their prosecution the established policy of the State, as regards the
punishment of the culprits has remained unchanged since 1932. It is not for us to consider the merits and demerits of
such policy. This falls within the province of the policy-making branch of the government the Congress of the Philippines.
However, the following quotation from Cuello Calon indicates the schools of thought on this subject and the reason that
may have influenced our lawmakers in making their choice:
(Spanish)
Such evils as may result from the failure of the policy of the law punishing the offense to dovetail with the policy of the law
enforcing agencies in the apprehension and prosecution of the offenders are matters which may be brought to the
attention of the departments concerned. The judicial branch cannot amend the former in order to suit the latter. The Court
cannot indulge in judicial legislation without violating the principle of separation of powers, and, hence, undermining the
foundation of our republican system. In, short, we cannot accept the theory of the prosecution without causing much
bigger harm than that which would allegedly result from the adoption of the opposite view.
In conclusion, we hold that, under the allegations of the amended information againstDefendant-Appellant Amado V.
Hernandez, the murders, arsons and robberies described therein are mere ingredients of the crime of rebellion allegedly
committed by saidDefendants, as means necessary 4 for the perpetration of said offense of rebellion; chan
roblesvirtualawlibrarythat the crime charged in the aforementioned amended information is, therefore, simple rebellion, not
the complex crime of rebellion with multiple murder, arsons and robberies; chan roblesvirtualawlibrarythat the maximum
penalty imposable under such charge cannot exceed twelve (12) years of prision mayor and a fine of P20,000; chan
roblesvirtualawlibraryand that, in conformity with the policy of this court in dealing with accused persons amenable to a
similar punishment, said Defendant may be allowed bail.
It is urged that, in the exercise of its discretion, the Court should deny the motion under consideration, because the
security of the State so requires, and because the judgment of conviction appealed from indicates that the evidence of
guilt of Amado V. Hernandez is strong. However, as held in a resolution of this court, dated January 29, 1953, in the case
of Montano vs. Ocampo (G.R. L-6352):
cralaw to deny bail it is not enough that the evidence of guilt is strong; chan roblesvirtualawlibraryit must also appear that
in case of conviction the Defendants criminal liability would probably call for a capital punishment. No clear or conclusive
showing before this Court has been made.
In fact, in the case at bar, Defendant Amado V. Hernandez was sentenced by the lower court, not to the extreme penalty,
but to life imprisonment. Furthermore, individual freedom is too basic, too transcendental and vital in a republican state,
like ours, to be denied upon mere general principles and abstract consideration of public safety. Indeed, the preservation
of liberty is such a major preoccupation of our political system that, not satisfied with guaranteeing its enjoyment in the
very first paragraph of section (1) of the Bill of Rights, the framers of our Constitution devoted paragraphs (3), (4), (5), (6),
(7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and (21) of said section (1) to the protection of several aspects of
freedom. Thus, in line with the letter and spirit of the fundamental law, we said in the aforementioned case of Montano vs.
Ocampo:
Exclusion from bail in capital offenses being an exception to the otherwise absolute right guaranteed by the constitution,
the natural tendency of the courts has been toward a fair and liberal appreciation, rather than otherwise, of the evidence in
the determination of the degree of proof and presumption of guilt necessary to warrant a deprivation of that right.
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In the evaluation of the evidence the probability of flight is one other important factor to be taken into account. The sole
purpose of confining accused in jail before conviction, it has been observed, is to secure his presence at the trial. In other
words, if denial of bail is authorized in capital cases, it is only on the theory that the proof being strong,
the Defendantwould flee, if he has the opportunity, rather than face the verdict of the jury. Hence, the exception to the
fundamental right to be bailed should be applied in direct ratio to the extent of the probability of evasion of prosecution.

147
The possibility of escape in this case, bearing in mind the Defendants official and social standing and his other personal
circumstances, seem remote if not nil.
This view applies fully to Amado V. Hernandez, with the particularity that there is an additional circumstance in his favor
he has been detained since January 1951, or for more than five (5) years, and it may still take some time to dispose of the
case, for the same has not been, and is not in a position to be, included, as yet, in our calendar, inasmuch as the briefs for
some Appellants other than Hernandez as well as the brief for the Government, are pending submission. It should
be noted, also, that the decision appealed from the opposition to the motion in question do not reveal satisfactorily and
concrete, positive act of the accused showing, sufficiently, that his provincial release, during the pendency of the appeal,
would jeopardize the security of the State.
Wherefore, the aforementioned motion for bail of Defendant- Appellant Amado V. Hernandez is hereby granted and, upon
the filing of a bond, with sufficient sureties, in the sum of P30,000, and its approval by the court, let said DefendantAppellant be provisionally released. It is SO ORDERED.
Paras, C.J., Reyes, A., Bautista Angelo and Reyes. J.B.L., JJ., concur.
Bengzon, J., concurs in the result.

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Separate Opinions
PADILLA, J., dissenting:
Amado V. Hernandez and others were charged in the Court of First Instance of Manila with the crime of rebellion with
multiple murder, arsons and robberies. The body of the information charged that he and his co-Defendants conspired and
that as a necessary means to commit the crime of rebellion, in connection therewith and in furtherance thereof, have
then and there committed acts of murder, pillage, looting, plunder, arson, and planned destruction of private and public
property to create and spread chaos, disorder, terror, and fear so as to facilitate the accomplishment of the aforesaid
purpose, and recited the different crimes committed by the Defendants. After trial Amado V. Hernandez was found guilty
and sentenced to suffer life imprisonment from which judgment and sentence he appealed. The appeal is pending in this
Court.
Upon the ground that there is no complex crime of rebellion with murder, the penalty provided for to be imposed upon
persons found guilty of rebellion being prision mayor and a fine not to exceed P20,000 only, 1 the majority grants the
petition for bail filed by theAppellant.
Section 1, paragraph 16, Article III, of the Constitution provides:
All persons shall before conviction be bailable by sufficient sureties, except those charged with capital offenses when
evidence of guilt is strong. Excessive bail shall not be required. (Italics supplied.)
The pertinent sections of Rule 110 provide:
SEC. 3. Offenses less than capital before conviction by the Court of First Instance. After judgment by a justice of the
peace and before conviction by the Court of First Instance, theDefendant shall be admitted to bail as of right.
SEC. 4. Noncapital offenses after conviction by the Court of First Instance. After conviction by the Court of First
Instance Defendant may, upon application, be bailed at the discretion of the court.
SEC. 5. Capital offenses defined. A capital offense, as the term is used in this rule, is an offense which, under the law
existing at the time of its commission, and at the time of the application to be admitted to bail, may be punished by death.
SEC. 6. Capital offenses not bailable. No person in custody for the commission of a capital offense shall be admitted
to bail if the evidence of his guilt is strong.
SEC. 7. Capital offenses - burden of proof. On the hearing of an application for admission to bail made by any person
who is in custody for the commission of a capital offense, the burden of showing that evidence of guilt is strong is on the
prosecution.
SEC. 13. Bail on appeal. Bail upon appeal must conform in all respects as provided for in other cases of bail.
According to this Rule, a Defendant in a criminal case after a judgment of conviction by the Justice of the Peace Court
and before conviction by the Court of First Instance is entitled to bail. After conviction by the Court of First Instance he,
upon application, may still be bailed in non-capital offenses but at the discretion of the court. When the information
charges a capital offense the Defendant is not entitled to bail if the evidence of his guilt is strong. Of course this means
before conviction. After conviction for a capital offense, the Defendant has absolutely no right to bail, because even before
conviction a Defendant charged with capital offense is not entitled to bail if the evidence of guilt is strong. So that should
a Defendantcharged with a capital offense apply for bail before conviction, the prosecution must establish and show that
the evidence of the Defendants guilt is strong if the application for bail be objected to. After conviction of
a Defendant charged with a capital offense there is no stronger evidence of his guilt than the judgment rendered by the
trial court. The judgment is entitled to full faith and credit. Until after the evidence shall have been reviewed and the
reviewing court shall have found that the trial court committed error in convicting theDefendant of the crime charged, the
judgment and sentence of the trial court in such criminal case must be taken at its face value and be given full faith and
credit by this Court.
Without a review of the evidence presented in the case, the majority has taken up and discussed the question whether,
under and pursuant to the provisions of article 135 of the Revised Penal Code, the complex crime of rebellion with murder
may arise or exist or be committed and has reached the conclusion that murder as an incident to rebellion, is integrated,
imbibed, incorporated, or absorbed in, or part and parcel of, the last mentioned crime. For that reason it is of the opinion
that, as the information filed against Amado V. Hernandez does not charge a capital offense, he may be admitted to bail at
the discretion of the Court.
Even if the majority opinion that the crime charged in the information is rebellion only a non-capital offense be
correct, still the granting of bail after conviction is discretionary, and I see no plausible reason for the reversal of this
Courts previous stand, because the security of the State is at stake.
For these reasons I dissent.
MONTEMAYOR, J., dissenting:
Unable to agree to the resolution of the majority, I am constrained to dissent therefrom, not so much from the part thereof
granting the motion for bail, as where it holds not only that there can be no complex crime of rebellion with multiple
murder, robbery, arson, etc., but that these crimes when committed during and on the occasion of a rebellion, are
absorbed by the latter. The new doctrine now being laid down besides being, to my mind, quite radical and in open and
clear contravention of public policy, is fundamental and of far-reaching consequences, and I feel it my duty not only to
voice my dissent but also to state the reasons in support thereof.
The resolution cites and quotes Article 135 of the Revised Penal Code to support its theory that the five acts enumerated
therein particularly those of engaging in war against the forces of the government, destroying property and committing
serious violence, cover all the murders, robberies, arsons, etc., committed on the occasion of or during a rebellion; chan
roblesvirtualawlibraryand it proceeds to assert that the expressions used in said article, such as engaging in war against
the forces of the government and committing serious violence imply everything that war connotes such as physical injuries

149
and loss of life. In this connection, it is of profit and even necessary to refer to Article 134 of the Revised Penal Code
defining and describing how the crime of rebellion is committed.
Art. 134. Rebellion or insurrection How committed. The crime of rebellion or insurrection is committed by rising
publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or
its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed forces, or of
depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.
According to the above article, rebellion is committed by rising publicly and taking arms against the government for the
purpose or purposes enumerated in said article. In other words, the commission of rebellion is complete and
consummated if a group of persons for the purposes enumerated in the article, rise publicly, take up arms and assemble.
It is not necessary for its consummation that anybody be injured or killed, be it a government soldier or civilian, or that
innocent persons be forcibly deprived of their properties by means of robbery or that their stores and houses be looted
and then burned to the ground. Stated differently, murders, robberies, arsons, etc., are not necessary or indispensable in
the commission of rebellion and, consequently, are not ingredients or elements of the latter.
Article 48 of the Revised Penal Code providing for Penalty for complex crimes reads thus:
ART. 48. Penalty for complex crimes. When a single act constitutes two or more grave or less grave felonies, or when
an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the
same to be applied in its maximum period. (As amended by Act No. 4000.)
For better understanding, I deem it advisable to ascertain and explain the meaning of the phrase necessary means used
in Article 48. Necessary means as interpreted by criminologists, jurists and legal commentators, does not mean
indispensable means, because if it did, then the offense as a necessary means to commit another would be an
indispensable element of the latter and would be an ingredient thereof. That would be true in the offense of trespass to
dwelling to commit robbery in an inhabited house, or the infliction of physical injuries to commit homicide or murder. The
phrase necessary means used in Article 48, merely signifies that for instance, a crime such as simple estafa can be and
ordinarily is committed in the manner defined and described in the Penal Code; chan roblesvirtualawlibrarybut, if the
estafador resorts to or employs falsification, merely to facilitate and insure his committing the estafa, then he is guilty of
the complex crime of estafa thru falsification. So, if one desiring to rape a certain woman, instead of waiting for an
opportunity where she could be alone or helpless, in the fields or some isolated place, abducts her by force and takes her
to a forest to ravish her; chan roblesvirtualawlibraryor he enters her home through a window at night and rapes her in her
room, then he is guilty of the complex crime of abduction with rape or rape with trespass to dwelling. The reason is that
the commission of abduction of trespass to dwelling are not indispensable means or ingredients of the crime of rape. They
are but means selected by the culprit to facilitate and carry out perhaps more quickly his evil designs on his victim. Says
the eminent Spanish commentator, Groizard, on this point:
Una cosa analoga acontece respecto de los delitos conexionados con una relacion de medio a fin. Tambien en ellos la
unidad de acto moral, que da vida al delito, hace logica la imposicion de una sola pena. Preciso es, sin embargo,
distinguir el caso en que el delito medio sea medio necesario de realizar el delito fin, del caso en que sea puramente
medio, pero no medio indispensable. En aquel, el delito medio no es, en realidad, sino una condicion precisa, una
circumstancia sine qua non, un elemento integral de la accion punible concebida como fin. Sin pasar por uno, seria
imposible llegar al otro. La voluntad, libre e inteligente, tiene entonces por unico objeto llegar al delito fin. Si al recorrer su
camino ha de pasar, indispensablemante, por la comision de otro hecho punible, no dos, sino un delito habra que
castigar, toda ves que uno fue el mal libremente querido, no siendolo el otro por si, sino en tanto que era necesario para
obtener, la realizacion del mal proposito concebido.
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Asi, hay que reconocer que es plausible que, cuando un delito es medio de realizar otro, se imponga al culpable la pena
correspondiente al mayor en su grado maximo; chan roblesvirtualawlibrarypero que no los es si resulta que ha sido medio
necesario. Por lo contrario, para que sea justo el aumento de pena, con arreglo a la doctrina general acerca del delito y
las circunstancia agravantes, es preciso que existan y no se aprovechen otros procedimientos, otros recursos, mas o
menos faciles para consumar el delito. Entonces la responsibilidad se hace mayor eligiendo un medio que sea un delito
en si. El que puede, haciendo uso de su libertad y de su inteligencia, escoger entre varios procedimientos para llegar a
un fin, y se decide por uno que por si solo constituye delito, de este delito no necessario para la realizacion del
proyectado como fin, debe responder tambien.
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Ejemplo: el allanamiento de domicilio como medio de llegar al delito de violacion. No es condicion necesaria, para que la
violacion pueda realizarse, el entrar en la morada ajena contra la voluntad de su dueo. Sin esa circunstancia, el delito
puede existir. Ahora bien; chan roblesvirtualawlibrarysi el criminal acepta como medio de llegar a la violacion el
allanamiento de domicilio, este delito y el de violacion deben ser castigados observandose en la aplicacion del castigo
una unidad de penalidad que guarde cierta analogia con la unidad de pensamiento que llevo en culpable a la ralizacion
de ambos delitos. Para estos y analogos casos, la razon aprueba la imposicion de la mas grave de las penas en su grado
maximo. (Groizard, El Codigo Penal de 1870, Tomo II, pp. 495-496.)
Applying the above observations to the crime of rebellion as defined in Article 134, the same may be committed by merely
rising publicly and taking arms against the government, such as was done on several occasions as alleged in the
information for rebellion in the present case where a group of Hukbalahaps, entered towns, overpowered the guards at
the Presidencia confiscated firearms and the contents of the municipal treasurers safe, exacted contributions in the form
of money, food-stuffs and clothing from the residents and maintained virtual control of the town for a few hours. That is
simple but consummated rebellion. Murder, robbery, arson, etc., are not necessary or indispensable to consummate the
crime of rebellion.
But in other cases, this group or other groups of dissidents in order to facilitate achieving their objective to overthrow the
government, according to the findings of the trial courts in several cases of rebellion, resorted to looting and robberies to
raise funds to finance their movement, sometimes killing civilians who refused to contribute or to be recruited to augment

150
the forces of the rebels or who were suspected of giving information to the government forces of the movements of the
dissidents. Sometimes, homes of town and barrio residents are set on fire and burned to the ground in reprisal or in order
to strike terror into the hearts of the inhabitants, so that they would be more amenable to the rule and the demands of the
rebels. At other times, civilians were kidnapped for purposes of ransom, and some hostages killed when the ransom was
not paid or was not forthcoming. In the raid on Camp Macabulos in Tarlac, besides shooting down soldiers and officers,
buildings were set on fire, inducing the hospital, as a result of which, patients including a Red Cross nurse were killed. In
another case, a passenger bus containing about forty civilian passengers in Sta. Cruz, Zambales, was held up by these
armed dissidents; chan roblesvirtualawlibrarythe passengers were robbed of their money and jewelry and fourteen of
them were shot to death. The party of Mrs. Aurora Quezon while on its way to the town of Baler, was ambushed in
Bongabong, Nueva Ecija by the dissidents and several members of the party, including herself, her daughter, her son-inlaw, Mayor Bernardo of Quezon City, and others were killed, and their persons despoiled of jewelries and belongings. It is
clear that all these acts of murder, vandalism, banditry and pillage cannot be regarded as ingredients and indispensable
elements of the crime of rebellion. The aforecited acts and cases, the enumeration of which is far from complete, are not
based on mere suspicion or hearsay. They are alleged as facts in the numerous counts contained in complaints or
informations for rebellion with multiple murder, robbery, arson, kidnapping, etc. in several separate cases in the Courts of
First Instance, some still pending trial-but quite a number already decided and now pending appeal before us. There must
be much truth to these charges and counts because in the case against Huk Supremo Luis Taruc, William Pomeroy et al.,
(criminal case No. 19166 C.F.I., Manila) Pomeroy pleaded guilty to all the thirty counts against him; chan
roblesvirtualawlibraryso did Taruc after seven counts had been eliminated from the thirty contained in the information.
Among the twenty three counts remaining to which Taruc pleaded guilty were the holding up of forty civilians in a
passenger bus in Sta. Cruz, Zambales, and the night raid on Camp Macabulos where hospital patients and a Red Cross
nurse were killed.
Since the above mentioned crimes of multiple murder, robbery, kidnapping, etc., are not ingredients of rebellion nor
indispensable to its commission but only means selected and employed by the offenders to commit rebellion and achieve
their goal, a complex crime is committed under Article 48 of the Revised Penal Code.
Going back to the theory of the majority in the resolution that the phrase engaging in war and committing serious violence
used in Article 134, covers the crimes of murder, robbery, arson, etc., committed during a rebellion, I emphatically
disagree. Engaging in war and levying war, against the government, are general terms employed in the United States
statutes to define rebellion and treason. They are used interchangeably and have the same meaning in our law on
rebellion and treason, (Articles 114, 134, 135, Revised Penal Code) which are based on Act 292 of American origin. They
do not necessarily mean actual killing of government troops, much less of innocent civilians.
Levying War. The assembling of a body of men for the purpose of effecting by force a treasonable object; chan
roblesvirtualawlibraryand all who perform any part, however, minute, or however remote from the scene of action, and
who are leagued in the general conspiracy, are considered as engaged in levying war, within the meaning of the
constitution. (Bouviers Law Dictionary, Vol. 2, p. 1938.)
This Tribunal defines levying war in the case of U.S. vs. Lagnason, 3 Phil., 478-9, thus:
Whatever differences there may have been among the early judges as to whether an armed resistance to the
enforcement of a public law (see Act No. 292, section 5, 1) constituted a levying of war or not, and war or was not treason,
yet they were all unanimous in holding that acts of violence committed by an armed body of men with the purpose of
overthrowing the Government was levying war against the United States, and was therefore treason, whether it was
done by ten men or ten thousand. (See United States vs. Hanway, 2 Wall., jr., 139; chan roblesvirtualawlibrary26 Fed.
Cases, 105.)
xxx

xxx

xxx

As the act of engaging in a rebellion is levying war, and therefore treason, the same act seems to be punished by both
sections and in different ways. (U. S. vs. Lagnason, 3 Phil., 48-9.)
Just as a citizen can commit treason by adhering to the enemy and committing treasonable overt acts such as pointing
out and helping arrest guerrillas, accompanying enemy soldiers on patrol and giving valuable information to the enemy,
without himself killing anyone of his countrymen, this although Article 114 uses the phrase levying war to define-treason,
so, although Article 135 uses the phrase engaging in war, a group of individuals may also commit rebellion by merely
rising publicly and taking arms against the government without firing a single shot or inflicting a single wound.
But the majority says that serious violence mentioned in Article 134 may include murder. To me, this view is untenable.
From serious violence to the capital offense of murder, certainly, is a far cry. Besides, serious violence can also be on
things. In my opinion, the different acts mentioned in Article 135, among them, destroying property, committing serious
violence, exacting contributions or diverting public funds, instead of giving license and unlimited leave to rebels and
dissidents to engage in mass murder, looting and wholesale destruction of property, on the contrary, serve to limit and
restrict the violations of law that may be included in and absorbed by rebellion. Article 135 mentions those acts which
generally accompany a public armed uprising. When rebels raid a town or barrio, manhandling of civilians who obstruct
their movements or fail to carry out their orders such as to lend their carabaos and carts for transportation purposes, or to
contribute food, clothes, medicines, money etc., may be expected. The rebels may employ force to disarm the policeman
guarding the Presidencia and if he offers resistance beat him up or, once inside, break down the door of the treasurers
office, blow up his safe and carry away the money contents thereof. All these acts involve violence, even serious violence
on persons and things, including diversion of public funds. But knowing that these law violations, relatively not serious, are
generally unavoidable in public armed uprisings involving hastily assembled persons and groups with little discipline the
law tolerates them, considering them as part of the rebellion. But when rebels rob innocent civilians, kidnap them for
purposes of ransom, even kill them merely because they fail to pay the ransom, and civilian houses are put to the torch,
endangering the lives of the inmates; chan roblesvirtualawlibrarywhen civilians are killed for refusing to contribute, or on
mere suspicion of their giving information to the government, I cannot believe that these brutal act are condoned by the
law and are to be included in the crime of rebellion.

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The majority leans heavily on our decisions in several treason cases wherein we refused or failed to convict of the
complex crime of treason with multiple murder. To me, those cases are neither controlling nor applicable for several
reasons. Almost invariably, indictment in those treason cases alleged the killings committed by the indictees as ingredients
and elements of treason. They are mentioned as the overt acts to establish and prove treason. Naturally, the court held
that being ingredients of the crime of treason they cannot be considered as distinct and separate offenses for the purpose
of applying Article 48 of the Revised Penal Code. Another reason is that, treason being a capital offense, this court did not
see any immediate necessity for considering and applying the theory of complex crime because the result would in many
cases be practically the same. In other words, treason might yet be said to absorb the crime of homicide, even of murder,
because as regards the penalty, they are of the same category. Still another reason, not an unimportant one is that at that
time, opinion among the members of this Tribunal on the question of complex crime of treason with homicide, sedition with
murder and rebellion with murder, arson, robbery, etc., had not yet crystalized, one way or the other. So, we preferred to
avoid ruling on the issue, specially since by considering the commission of murder, robbery, etc., in treason as
aggravating the crime, we would achieve the same result as regards the penalty to be imposed.
But in the case of People vs. Perfecto Labra, G.R. No. 1240, May 12, 1949, this court through Mr. Justice Bengzon,
accepted the view of the Solicitor General that under Article 48 of the Revised Penal Code, Labra was guilty of the
complex crime of treason with murder, as shown by the dispositive part of our decision in that case, which is quoted
below:
Wherefore, the verdict of guilt must be affirmed. Article 48, 114 and 248 of the Revised Penal Code are applicable to the
offense of treason with murder. However, for lack of sufficient votes to impose the extreme penalty, the Appellant will be
sentenced to life imprisonment.
The only reason why the death penalty was not imposed in said case was because of lack of sufficient votes but evidently,
the Justices were agreed as to the application of Article 48 of the Penal Code regarding complex crimes.
Then in the treason case of People vs. Barrameda, 85 Phil., 789, 47 Off. Gaz., 5082, on the strength of our decision in the
case of Labra, the Solicitor General recommended that Barrameda be also convicted of the complex crime of treason with
multiple murder and sentenced to death. This Tribunal accepted the Solicitor Generals recommendation and imposed the
death penalty in the following language:
We entertain not the least doubt as to the guilt of the Appellant. His very counsel de oficio who made an analysis of the
testimonies of the witnesses for the prosecution and painstakingly stated them in detail in his brief, agrees that his client is
guilty although he prays that the sentence of life imprisonment be affirmed. The Solicitor General, however, recommends
that the penalty of death be imposed upon the Appellant. Considering that the treason committed by the Appellant was
accompanied not only by the apprehension of Americans (U. S. citizens) and their delivery to the Japanese forces which
evidently later executed them, but also by killing with his own hands not only one but several Filipinos, his own
countrymen, and that in addition to this, he took part in the mass killing and slaughter of many other Filipinos, we are
constrained to agree to said recommendation. However, unpleasant, even painful is the compliance with our duty, we
hereby impose upon theAppellant Teodoro Barrameda the penalty of death which will be carried out on a day to be fixed
by the trial court within thirty (30) days after the return of the record of the case to said court.
With the two aforecited cases, it may not be said that the Supreme Court has always held that there can be no complex
crime of treason with murder.
The theory of the majority is that the crime of rebellion with the maximum penalty of twelve years and fine, absorbs the
other crimes of murder, robbery, arson, kidnapping, etc., as long as the latter are committed in the course and in
furtherance of the former. The idea of one crime absorbing a more serious one with a more severe penalty does not
readily appeal to the reasonable and logical mind which can only comprehend a thing absorbing another smaller or less
than itself in volume, in importance, in value or in category. That is why Judge Montesa in the three cases, People vs.
Hernandez, People vs. Espiritu, and People vs. Medina, criminal cases Nos. 15481, 15479 and 1411 respectively, of the
Court of First Instance, Manila, in his decision convicting the accused therein, in disposing of the theory of absorption,
urged upon him by counsel for the defense to the effect that the crime of rebellion absorbs the crime of murder, robbery,
arson, etc., made the following observations:
The theory of absorption tenaciously adhered to by the defense to the effect that rebellion absorbs all these more serious
offenses is preposterous to say the least, considering that it is both physically and metaphysically imposible for a smaller
unit or entity to absorb a bigger one. (Montesa, J., People vs. Hernandez G.R. No. 15481, P. 78.)
We need not go into an academic discussion of this question because as a matter of law, my opinion, criminal
jurisprudence, expounding the criminal law namely the Penal Code and the Penal Code of Spain, on which it is based,
expressly and clearly declare that the common crimes of murder, robbery, arson, etc., committed in the course or by
reason of rebellion, are separate crimes, not to be merged in or absorbed by rebellion and should be prosecuted
separately. Article 259 of the Penal Code of Spain, of 1870 on which our Penal Code promulgated in 1887, was based,
provides as follow:
In commenting on Article 259 of the Spanish Penal Code, Viada says:
Pea, another commentator, referring to Article 259 of the Spanish Penal Gode, has the following to say:
Another commentator, A. Quintano Ripolles, says of Article 259 of the Spanish Penal Code, counterpart of Article 244 of
our old Penal Code:
Another distinguished legal commentator gives his view on the same Article 259:
It will be seen that Spanish jurists and legal commentators are, with reference to Article 259 of the Spanish Penal Code of
1870, unanimous in the opinion that this provision of the Criminal Law is just and fair because one should not take
advantage of his committing the crime of rebellion by committing other more serious crime such as murder, robbery,
arson, etc., with impunity. The above much commented Article 259 of the Spanish Penal Code has its counterpart in
Article 244 of our old Penal Code in practically the same wording and phraseology:

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ART. 24. All other crimes committed in the course of a rebellion of seditious movement, or on occasion thereof, shall be
punished in accordance with the rules of this Code.
If the perpetrators of such crimes cannot be discovered, the principal leaders of the rebellion or sedition shall be
punished therefore as principals.
In this jurisdiction, we have faithfully observed and applied this penal provision. In the cases of U. S. vs. Cabrera, et al., 43
Phil., page 64 and page 82 for sedition and multiple murder respectively, wherein members of the Philippine constabulary
attacked and killed several policemen in the City of Manila, this Court convicted said soldiers, first, of sedition and later, of
multiple murder, clear proof that the murders committed in the course of and by reason of the sedition were not included in
and absorbed by sedition, this despite the fact that our law on sedition then, section 5 of Act No. 292, uses the words
rise publicly and tumultuously, in order to attain by force or outside of legal methods any of the following objects are guilty
of sedition. In the multiple murder case, the sergeants and corporals of the constabulary, who took part in the killing of the
city policemen, were sentenced to death. This court in that case said:
It is merely stating the obvious to say that sedition is not the same offense as murder. Sedition is a crime against public
order; chan roblesvirtualawlibrarymurder is a crime against persons. Sedition is a crime directed against the existence of
the State, the authority of the government, and the general public tranquility; chan roblesvirtualawlibrarymurder is a crime
directed against the lives of individuals. (U. S. vs. Abad (1902) 1 Phil. 437.) Sedition in its more general sense is the
raising of commotions or disturbances in the state; chan roblesvirtualawlibrarymurder at common law is where a person of
sound mind and discretion unlawfully kills any human being, in the peace of the sovereign, with malice aforethought,
express or implied.
The offenses charged in the two informations for sedition and murder are perfectly distinct in point of law, however, nearly
they may be connected in point of fact. Not alone are the offenses eo nomine different, but the allegations in the body of
the informations are different. The gist of the information for sedition is the public and tumultuous uprising of the
constabulary in order to attain by force and outside of legal methods the object of indicting an act of hate and revenge
upon the persons of the police force of the city of Manila by firing at them in several places in the city of Manila; chan
roblesvirtualawlibrarythe gist of the information in the murder case is that the constabulary, conspiring together, illegally
and criminally killed eight persons and gravely wounded three others. The crimes of murder and serious physical injuries
were not necessarily included in the information for sedition; chan roblesvirtualawlibraryand the Defendants could not
have been convicted of these crimes under the first information. (Phil. Vol. 43, pages 99-100.)
There is an insinuation made in the majority resolution, that the American Law on sedition and rebellion, the origin of our
present law on the subject, is more benign and liberal than its counterpart in the Spanish Penal Code, defining and
penalizing sedition and rebellion, and that under American jurisprudence, rebellion and sedition include crimes like
murder, robbery, arson, etc., committed in the course thereof. But it will be noticed that of the nine Justices who signed the
decision in the case of People vs. Cabrera for multiple murder, five, including Mr. Justice Malcolm, who penned the
decision, were Americans, supposed to be steeped in American Law and the common law, and yet they all held that
sedition where force is expected to be used, did not, include murder. It is evident that the insinuation made in the majority
resolution is not exactly borne out by the Cabrera case.
The majority asks why in the past, especially up to 1932, when our Revised Penal Code was promulgated no one had
ever been prosecuted, much less convicted of rebellion or sedition complexed with murder, robbery, etc., if it is true that
there is such a complex crime of rebellion with murder. For that matter, one may even ask why the constabulary soldiers
in the Cabrera case were not charged with the complex crime of sedition with murder. The reason and the answer are
obvious. Until 1932, the year of the promulgation of our Revised Penal Code, our old Penal Code included Article 244, the
counter-part of Article 259 of the Spanish Penal Code, to the effect that common crimes like murder, robbery, arson,
committed on the occasion or by reason of a rebellion or sedition, are to be prosecuted separately. That was why
insurgents who committed rebellion or insurrection with homicide or murder during the first days of the American regime in
the Philippines, could not be charged with the complex crime of rebellion with murder; chan roblesvirtualawlibraryand that
explains why Cabrera and his co-accused could not be charged with the complex crime of sedition with multiple murder,
but were prosecuted separately for multiple murder.
The majority also asks why the insurgents in the year 1901 and 1902 were charged only with rebellion but never with
murder despite the fact that there was proof that they also had committed murder in the course of the rebellion or
insurrection. The reason to my mind was that, shortly thereafter, came the proclamation of amnesty issued by President
McKinley of the United States, which amnesty covered not only the crime of rebellion but also other violations of the law
committed in the course of the rebellion.
Then came our Revised Penal Code promulgated in 1932. It is a revision of our old Penal Code of 1887. One of the
purposes of the revision was simplification, and elimination of unnecessary provisions. In proof of this, while our Penal
Code of 1887 contained 611 articles, our Revised Penal Code contains only 367 articles. Among the articles of the old
Penal Code not included in the Revised Penal Code, is Article 244. Does the omission or elimination of Article 244 mean
that now, common crimes like murder, robbery, arson, etc., committed in the course of a rebellion or sedition are absorbed
by rebellion or sedition? Hardly. It cannot be that the committee on revision and our legislators abandoned the idea and
the theory contained in said Article 244, because as I have already explained, all the Spanish commentators and jurists
commenting on this particular provision of the Spanish Penal Code are agreed that it is a just and reasonable provision,
so that sedition and rebellion may not be utilized as a cloak of immunity in the commission of other serious crimes. To me,
the reason for the omission is that it was really unnecessary. As Groizard said in his commentary already reproduced,
even if that provision were not embodied in the penal code, the court would still apply said provision:
The members of the committee on revision of our old Penal Code who must have been familiar with the opinion and
comments of eminent Spanish jurists, particularly the above comment of Groizard undoubtedly, deemed the provision of
Article 244 superfluous and unnecessary, and so omitted it in the revision. However, this omission of Article 244 of our
Penal Code in the new, has an important effect. No longer shall we be obliged to prosecute murder, robbery, arson,
kidnapping, etc., committed in the course of and by reason of a sedition or a rebellion, separately. The prosecution is now
free to combine these common crimes with the crimes of sedition or rebellion and charge a complex crime. And that is
what has been done in the prosecution of the numerous cases of rebellion.

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This idea, this theory of complex crime of rebellion with multiple murder, etc., is not such a strange, extravagant or
fantastic proposition or idea. We are not the only ones holding this view. Out of seven separate cases, all involving the
complex crime of rebellion with multiple murder and etc., decided in the Court of First Instance, not long ago, cases No.
14070 People vs. Lava; chan roblesvirtualawlibraryNo. 15841 People vs. Hernandez; chan roblesvirtualawlibraryNo.
2878 People vs. Capadocia; chan roblesvirtualawlibraryNo. 10400 People vs. Salvador No. 2704 People vs.
Nava; chan roblesvirtualawlibraryNo. 19166 People vs. Pomeroy and the same case 19166 People vs. Taruc, only
one judge, Hon. Gregorio Narvasa, of the Court of First Instance of Manila, held that there is no complex crime of rebellion
with murder, and his holding was based mainly if not entirely on the decisions of this Tribunal in the treason cases which
as I have already explained, are not controlling or applicable. In the other cases, five judges of Courts of First Instance,
Judges Ocampo, Castelo, Barcelona, Gatmaitan, and Montesa, held that there is such a complex crime of rebellion with
murder and actually convicted the accused of said complex crime. Again, in the case of People vs. Umali, et al., criminal
case No. 11037 of the Court of First Instance of Quezon Province, Judge Gustavo Victoriano, convicted the accused of
the complex crime of rebellion with multiple murder, etc. Recently, in several criminal cases pending in Pangasinan,
involving the complex crimes of rebellion with multiple murder, etc., Judge Morfe of the Court of First Instance of that
province acting upon motions to quash the informations on the ground that there was no such complex crime of rebellion
with murder and consequently, the informations were not in accordance with law, for charging more than one offense, in a
well reasoned and considered order, denied the same and held that there is a complex crime of rebellion with murder. Of
course, these opinions of judges of the lower courts are not binding on this tribunal but surely, they are persuasive and
cannot be ignored. At least, they show that there are others, learned in the law, who subscribe to the theory of complex
crime of rebellion with murder, arson, etc.
Our decision in the case of People vs. Umali, (96 Phil., 185), promulgated on November 29, 1954, is another proof that
murders committed in the course of sedition or rebellion are not absorbed by the latter. In said case, this court in a
unanimous decision found the Defendantstherein guilty of sedition, multiple murder, arson, frustrated murder and physical
injuries and sentenced them accordingly. The question may again be asked, if there is such a complex crime of sedition
with murder, arson, etc., why were Umali and his co-accused not convicted of this complex crime? The answer is found in
a portion of our decision in that case which we quote:chanroblesvirtuallawlibrary
The last point to be determined is the nature of the offense or offenses committed.Appellants were charged with and
convicted of the complex crime of rebellion with multiple murder, frustrated murder, arson and robbery. Is there such a
complex crime of rebellion with multiple murder, etc.? While the Solicitor General in his brief claims that Appellants are
guilty of said complex crime and in support of his stand asks for leave to incorporate by reference his previous arguments
in opposing Umalis petition for bail, counsel forAppellants considered it unnecessary to discuss the existence or nonexistence of such complex crime, saying that the nature of the crime committed is of no moment to
hereinAppellants because they had absolutely no part in it whatsoever. For the present, and with respect to this particular
case, we deem it unnecessary to decide this important and controversial question, deferring its consideration and
determination to another case or occasion more opportune, when it is more directly and squarely raised and both parties
given an opportunity to discuss and argue the question more adequately and exhaustively. Considering that, assuming for
the moment that there is no such complex crime of rebellion with murder; chan roblesvirtualawlibraryetc., and that
consequently Appellants could not have been legally charged with it, much less convicted of said complex crime, and the
information should therefore, be regarded as having charged more than one offense, contrary to Rule 106, section 12 and
Rule 113, section 2(e), of the Rules of Court, but that Appellants having interposed no objection thereto, they were
properly tried for and lawfully convicted if guilty of the several and separate crimes charged therein, we have decided and
we rule that the Appellants may properly be convicted of said several and separate crimes, as hereinafter specified. We
feel particularly supported and justified in this stand that we take, by the result of the case, namely, that the prison
sentence we impose does not exceed, except perhaps in actual duration, that meted out by the court below, which is life
imprisonment.
The majority resolution invokes and applies the principle of the so called pro reo in connection with Article 48 of our
Revised Penal Code on complex crimes, to the effect that said article should not be applied when the resulting penalty
exceeds the sum total of the several crimes committed constituting the complex crime. According to the majority, the
theory of pro reo is that the principle of complex crime was adopted for the benefit of the accused and not to his
prejudice; chan roblesvirtualawlibraryso, it is to be applied when the maximum of the penalty for the more serious crime is
less in severity or duration of imprisonment than the sum total of the several crimes committed, but not otherwise. This is
a novel theory in this jurisdiction. To my knowledge it has never been advanced before. All along and during all these
years, the courts of this country not excluding this august tribunal had been applying the provisions of Article 48 of the
Revised Penal Code, and its source, Article 89 of our Penal Code of 1887, regardless of whether or not the resulting
penalty was prejudicial to the accused. As a matter of fact, in most cases the resulting penalty imposed by this tribunal in
complex crimes was much more severe and of longer duration (imprisonment) than the sum total of the two or more
crimes committed. In the numerous cases decided by this court involving the complex crime of estafa through falsification,
the maximum of the penalty for the more serious crime of falsification was imposed although it exceeded the total of the
penalties for estafa and for falsification. In cases of rape with physical injuries the maximum of the penalty for the crime of
rape was imposed although it exceeded in duration and severity the total of the penalty for rape and that for the relatively
light penalty for physical injuries. In the case of People vs. Parulan (88 Phil., 615), involving the complex crime of
kidnapping with murder, this tribunal applied the provision of Article 48 of the Revised Penal Code and would have
sentenced the accused to death, were it not for one dissenting vote based not on the applicability of Article 48, but on the
question of jurisdiction. Said this court:
Then in the case of People vs. Guillen * 47 Off. Gaz., 3433, involving the complex crime of murder and multiple attempted
murder committed by the accused with a single act of hurling a hand grenade at President Roxas, this tribunal in a per
curiam decision, ignoring the aggravating circumstances that attended the commission of the crime, applied the maximum
of the penalty for the more serious crime of murder in accordance with Article 48 of the Revised Penal Code and
sentenced the accused to death. Other instances and cases may be cited ad libitum to show that in this jurisdiction and in
this tribunal, the principle of pro reo was never entertained, much less accepted.
Origin of pro reo principle
Up to the year 1908, the Spanish Penal Code had the following provisions for complex crimes:

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The above provisions were copied in our Penal Code of 1887 under Article 89 which reads thus:
The provisions of the next preceding article are not applicable to cases in which a single act constitutes two or more
crimes, or when one offense is a necessary means for committing the other.
In these cases, only the penalty of the more serious crime shall be imposed, the same to be applied in its maximum
degree.
On January 3, 1908, the Spanish Penal Code was amended, particularly paragraph 2 of Article 90 thereof so as to add to
said paragraph the following clause: inserted by the amending Spanish Law of January 3, 1908 to the second paragraph
of Article 90 of the Spanish Penal Code. Furthermore, when we drafted and promulgated our Revised Penal Code in 1932
(Article No. 3815) we ignored and did not accept the amendment to the Spanish Penal Code that favored one accused of
a complex crime as regards the penalty, so that now our law on the subject is contained in Article 48 of the Revised Penal
Code which as amended by Act No. 4000, reads as follows:
ART. 48. Penalty for complex crimes. When a single act constitutes two or more grave or less felonies, or when an
offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same
to be applied in its maximum period. (As amended by Act No. 4000.)
The majority resolution makes a more or less extensive dissertation and citation of authorities on the law of extradition,
intended to show that common crimes such as murder, etc., committed on the occasion of or in the course of the
commission of political crimes like sedition and rebellion, are not subject to extradition. We believe that these citations and
these arguments are neither relevant nor applicable. All we can say is that a murder committed in the course of a rebellion
or sedition may be considered a political crime in contemplation of the extradition law and that a person accused of said
murder is not subject to extradition. But a crime may be considered political from the standpoint of the extradition law and
yet may be regarded by the country where committed as a common crime separate and distinct from the rebellion or
sedition in the course of which it was committed, and, consequently, subject to prosecution. Moreover, the fact that a
murder committed in the course of a sedition or rebellion is excluded from the scope of the extradition agreement between
nations, is proof and argument that were it not for its exclusion, the member nations of the extradition agreement, where
murders are committed in the course of a rebellion or sedition may and would extradite the offenders, on the theory that
said murders are separate from and are not absorbed by the rebellion or sedition; chan roblesvirtualawlibraryotherwise,
there would be no need for excluding such crimes of murder, arson, etc., committed during a rebellion or sedition, from the
scope of the extradition law. And among such nations which consider these common crimes of murder, etc., as separate
from rebellion or sedition during which they were committed, are Spain, as shown by Article 259 of its Penal Code, and
the Philippines as illustrated in the cases of U.S. vs. Cabrera and People vs. Umali, supra. Groizard lists down several
countries that consider common crimes committed during a rebellion or sedition as subject to prosecution:
In justice to the Defendants-Appellants in the present case, I wish to explain and make clear that in mentioning and
describing the serious crimes of murder, robbery, arson, kidnapping, etc., alleged to have been committed in the course of
the rebellion or by reason thereof, I am not referring particularly to the charge or charges and counts alleged against
them. Their case is now pending appeal in this tribunal and their guilt or innocence of said charges or counts will be
decided in due time. And so, I am not imputing or attributing to them the serious violations of law I have mentioned in this
opinion. Rather, I am making general reference to the informations filed in other cases, especially in the informations
against Luis Taruc and William Pomeroy which case is not only decided but also is closed.
In conclusion, I hold that under the law and under general principles rebellion punished with a maximum penalty of twelve
(12) years and fine cannot possibly absorb a much more serious crimes like murder or kidnapping which are capital
offenses and carry the maximum penalty of death. It is hard for the mind to grasp the idea that a person committing one
lone murder may be headed for the electric chair; chan roblesvirtualawlibrarybut if perpetrates several murders,
kidnappings, arsons, and robberies and during their perpetration, was still committing another crime, that of trying to
overthrow his own government by force, then all he gets is twelve years and fine. Since, the serious crimes like multiple
murder, robbery, arson, kidnapping, etc., committed during the rebellion are not ingredients of, nor are they indispensable
to the commission of rebellion, and were but means freely selected by the rebels to facilitate their commission of rebellion
or to achieve and speed up their realization of their object, which was to overthrow the government and implant their own
system said to be of communistic ideology, then under Article 48 of the Revised Penal Code, the complex crime of
rebellion with murder, etc., was committed.
Judging by the numerous acts of atrocity contained in the several informations filed against the rebels in different cases,
not only government soldiers and officers, but innocent civilians by the hundreds were murdered. Stores and homes were
looted; chan roblesvirtualawlibrarynot only public buildings, like presidencias and government hospitals, but also private
buildings and homes were burned to the ground. And as a result of these acts of terrorism, entire barrios were abandoned
and landowners, especially owners of landed estates, evacuated to the provincial capitals or to the cities for personal
security. And it seems that these acts of banditry and pillage still continue though on a smaller scale.
Settled public policy or the policy of the Government as regards rebellion and the crimes against persons and property
committed by the rebels is clear. With their taxes, the citizens are maintaining a large army to put down the rebellion.
Substantial rewards ranging from P500 to P100,000 are offered for the apprehension of the rebels, specially the leaders.
A rebel leader with a P100,000 price on his head, after a campaign of several years by the army, and after the loss of lives
of many soldiers and civilian guides, is finally captured. The government pays down the P100,000 to those responsible for
the capture and charges him with the complex crime of rebellion with multiple murder, kidnapping, etc., a capital
offense. Pending trial, he asks to be released on bail and under the doctrine being laid down by us, he is set at liberty, free
to go back to the hills to resume his dissident activities where he left off, by merely posting a bond corresponding to a
maximum imprisonment of twelve years (P12,000) and a fine the amount of which is left to the discretion of the trial court.
If he jumps his bail and assuming that the full amount of the bond is confiscated, still, the Government which paid
P100,000 for his capture is the loser. It will have to wage another campaign to recapture him and perhaps offer another
reward for his apprehension. This would illustrate the wide divergence between the policy of the Government and the
present ruling of the Court. That is not as it should be. The three departments of the Government, the Executive, the

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Legislative and the Judicial Department, though independent of each other, should function as a team, harmoniously, and
in cooperation, all for the public welfare. They cannot work at cross purposes. All three should be guided by the settled
public policy of the state and this applies to the courts. In the case of Rubi vs. provincial board of Mindoro, 39 Phil., pp.
718-19, this court speaking about the relation between interpretation of the law by the courts and public policy,
said:chanroblesvirtuallawlibrary
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, is 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, Gamble vs. Vanderbilt University (200 Southwestern Reporter 510) the
Chief of Justice of the Supreme Court of Tennessee writes:
We can see no 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 the 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 cases. 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.
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 court 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 courts 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.
Now, by the majority resolution, this Court would spread the mantle of immunity over all these serious crimes against
persons and property on the theory that they are all covered by, included in, and absorbed by the crime of rebellion. Under
this protective mantle extended by us, instead of curbing and discouraging the commission of these common serious
crimes in accordance with public policy, the commission of said crimes would be encouraged. No longer would evilminded men, outlaws, bandits, hesitate to kill and rob and kidnap, because by pretending to be rebels or to be engaged in
rebellion, their acts of atrocity would be covered by rebellion, for which they would get, at most, twelve (12) years and fine.
No longer would the spectre of the death penalty and the electric chair hang sword of Damocles-like over the heads of
would be kidnappers, murderers and arsonists because by merely claiming to have committed another additional crime,
rebellion, under the doctrine laid down by the majority resolution, capital punishment for all capital crimes they have
committed or may commit, is automatically reduced to twelve (12) years and fine. It is evident that the effect of the
interpretation by this Court of the law on complex crimes, in relation to rebellion and the common serious crimes
committed during and in the course thereof, runs counter to the settled public policy on the subject.
Sad, indeed, is the role being played by this Tribunal in laying down a doctrine of such far reaching consequences and in
my opinion of such baneful not to say disastrous effects on peace and order and personal security, diametrically and
utterly opposed to settled public policy, when after all, we have now the opportunity and the choice of accepting and
adopting another view, another interpretation of the law on complex crimes, to be more reasonable, more logical and
certainly, more in accordance with public policy, and more in keeping with peace and order, personal security and the
public welfare.
For the foregoing reasons, I dissent.
Endencia, JJ., concurs.
LABRADOR, J., dissenting:
I fully agree with the dissenting opinion of Mr. Justice Montemayor in so far as he holds that the complex crime of rebellion
with murder exists under our law. I also concur with the opinion of Mr. Justice Padilla in so far as he holds that the petition
for bail should be denied because of the danger that the release of the Petitioner-Appellant may cause to the security of
the State. As the Appellant has been convicted by the Court of First Instance, he may be admitted to bail in the sound
discretion of the court. In the interest of security the discretion should not be exercised in favor of the granting of bail.

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G.R. No. L-54558 May 22, 1987
EDUARDO B. OLAGUER, OTHONIEL V. JIMENEZ, ESTER MISA-JIMENEZ, CARLOS LAZARO, REYNALDO
MACLANG, MAGDALENA DE LOS SANTOS-MACLANG, TEODORICO N. DIESMOS, RENE J. MARCIANO,
DANILO R. DE OCAMPO, VICTORIANO C. AMADO and MAC ACERON, petitioners,
vs.
MILITARY COMMISSION NO. 34, THE TRIAL COUNSEL OF MILITARY COMMISSION NO. 34, and THE MINISTER
OF NATIONAL DEFENSE, respondents.
GANCAYCO, J.:
Filed with this Court are two Petitions wherein the fundamental question is whether or not a military tribunal has the
jurisdiction to try civilians while the civil courts are open and functioning. The two Petitions have been consolidated
inasmuch as the issues raised therein are interrelated.
On December 24, 1979, the herein petitioners Eduardo B. Olaguer, Othoniel V. Jimenez, Ester Misa-Jimenez, Carlos
Lazaro, Reynaldo Maclang, Magdalena De Los Santos Maclang, Teodorico N. Diesmos, Rene J. Marciano, Danilo R.
De Ocampo and Victoriano C. Amado were arrested by the military authorities. They were all initially detained at Camp
Crame in Quezon City. They were subsequently transferred to the detention center at Camp Bagong Diwa in Bicutan
except for petitioner Olaguer who remained in detention at Camp Crame. Petitioner Mac Aceron voluntarily
surrendered to the authorities sometime in June, 1980 and was, thereafter, also incarcerated at Camp Bagong Diwa.
All of the petitioners are civilians.
On May 30, 1980, the petitioners were charged for subversion 1 upon the recommendation of the respondent Judge
Advocate General and the approval of the respondent Minister of National Defense. 2 The case was designated as
Criminal Case No. MC-34-1.
On June 13. 1980, the respondent Chief of Staff of the Armed Forces of the Philippines 3 created the respondent
Military Commission No 34 to try tile criminal case filed against the petitioners. 4 On July 30, 1980, an amended
charge sheet was filed for seven (7) offenses, namely: (1) unlawful possession of explosives and incendiary devices;
(2) conspiracy to assassinate President, and Mrs. Marcos; (3) conspiracy to assassinate cabinet members Juan
Ponce Enrile, Francisco Tatad and Vicente Paterno; (4) conspiracy to assassinate Messrs. Arturo Tangco, Jose Roo
and Onofre Corpus; (5) arson of nine buildings; (6) attempted murder of Messrs. Leonardo Perez, Teodoro Valencia
and Generals Romeo Espino and Fabian Ver; and (7) conspiracy and proposal to commit rebellion, and inciting to
rebellion. 5 Sometime thereafter, trial ensued.
In the course of the proceedings, particularly on August 19, 1980, the petitioners went to this Court and filed the
instant Petition for prohibition and habeas corpus." 6 They sought to enjoin the respondent Military Commission No. 34
from proceeding with the trial of their case. They likewise sought their release from detention by way of a writ
of habeas corpus. The thrust of their arguments is that military commissions have no jurisdiction to try civilians for
offenses alleged to have been committed during the period of martial law. They also maintain that the proceedings
before the respondent Military Commission No. 34 are in gross violation of their constitutional right to due process of
law.
On September 23, 1980, the respondents filed their Answer to the Petition. 7 On November 20, 1980, the petitioners
submmitted their reply to the Answer. 8 In a Motion filed with this Court on July 25, 1981, petitioner Olaguer requested
that the Petition be considered withdrawn as far as he is concerned. 9 In the Resolution of this Court dated July 30,
1981, the said prayer was granted." 10 On August 31, 1984, the respondents filed a Rejoinder to the Reply submitted
by the petitioners. 11
On December 4, 1984, pending the resolution of the Petition, the respondent Military Commission No. 34 passed
sentence convicting the petitioners and imposed upon them the penalty of death by electrocution. Thus, on February
14, 1985, petitioners Olaguer, Maclang and Othoniel and Ester Jimenez went to this Court and filed the other instant
Petition, this time for habeas corpus, certiorari, prohibition and mandamus. They also sought the issuance of a writ of
preliminary injunction. 12 The respondents named in the Petition are the Chief of Staff of the Armed Forces of the
Philippines, Military Commission No. 34, the Judge Advocate General, the Minister of National Defense and the
Director of the Bureau of Prisons.
In sum, the second Petition seeks to enjoin the said respondents from taking any further action on the case against
the petitioners, and from implementing the judgment of conviction rendered by the respondent Military Commission
No. 34 for the reason that the same is null and void. The petitioners also seek the return of all property taken from
them by the respondents concerned. Their other arguments in the earlier Petition are stressed anew.
On August 9, 1985, the respondents filed their Answer to the Petition. 13 On September 12, 1985, this Court issued a
temporary restraining order enjoining the respondents from executing the Decision of the respondent Military
Commission No. 34 14 On February 18, 1986, the petitioners submitted an extensive Brief. 15 Thereafter, and in due
time, the cases were submitted for decision.
In resolving these two Petitions, We have taken into account several supervening events which have occurred
hitherto, to wit

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(1) On January 17, 1981, President Ferdinand E. Marcos issued Proclamation No. 2045 officially lifting martial
law in the Philippines. The same Proclamation revoked General Order No. 8 (creating military tribunals) and
directed that "the military tribunals created pursuant thereto are hereby dissolved upon final determination of
case's pending therein which may not be transferred to the civil courts without irreparable prejudice to the
state in view of the rules on double jeopardy, or other circumstances which render prosecution of the cases
difficult, if not impossible."; and
(2) Petitioner Ester Misa-Jimenez was granted provisional liberty in January, 1981. On the other hand,
petitioners Eduardo Olaguer and Othoniel Jimenez obtained provisional liberty on January 23, 1986. 16 The
rest of the petitioners have been released sometime before or after President Corazon C. Aquino assumed
office in February, 1986.
The sole issue in habeas corpus proceedings is detention. 17 When the release of the persons in whose behalf the
application for a writ of habeas corpus was filed is effected, the Petition for the issuance of the writ becomes moot and
academic. 18 Inasmuch as the herein petitioners have been released from their confinement in military detention
centers, the instant Petitions for the issuance of a writ of habeas corpus should be dismissed for having become moot
and academic.
We come now to the other matters raised in the two Petitions. The main issue raised by the petitioners is whether or
not military commissions or tribunals have the jurisdiction to try civilians for offenses allegedly committed during
martial law when civil courts are open and functioning.
The petitioners maintain that military commissions or tribunals do not have such jurisdiction and that the proceedings
before the respondent Military Commission No. 34 are in gross violation of their constitutional right to due process of
law. The respondents, however, contend otherwise.
The issue on the jurisdiction of military commissions or tribunals to try civilians for offenses allegedly committed
before, and more particularly during a period of martial law, as well as the other issues raised by the petitioners, have
been ruled upon by a divided Supreme Court in Aquino, Jr. v. Military Commission No. 2. 19 The pertinent portions of
the main opinion of the Court are as follows
We hold that the respondent Military Commission No. 2 has been lawfully constituted and validly vested with
jurisdiction to hear the cases against civilians, including the petitioner.
l. The Court has previously declared that the proclamation of Martial Law ... on September 21, 1972, ... is valid
and constitutional and that its continuance is justified by the danger posed to the public safety. 20
2. To preserve the safety of the nation in times of national peril, the President of the Philippines necessarily
possesses broad authority compatible with the imperative requirements of the emergency. On the basis of
this, he has authorized in General Order No. 8 . . . the Chief of Staff, Armed Forces of the Philippines, to
create military tribunals to try and decide cases "of military personnel and such other cases as may be
referred to them." In General Order No. 12 ... , the military tribunals were vested with jurisdiction "exclusive of
the civil courts," among others, over crimes against public order, violations of the Anti-Subversion Act,
violations of the laws on firearms, and other crimes which, in the face of the emergency, are directly related to
the quelling of the rebellion and preservation of the safety and security of the Republic. ... These measures he
had the authority to promulgate, since this Court recognized that the incumbent President (President Marcos),
under paragraphs 1 and 2 of Section 3 of Article XVII of the new (1973) Constitution, had the authority to
"promulgate proclamations, orders and decrees during the period of martial law essential to the security and
preservation of the Republic, to the defense of the political and social liberties of the people and to the
institution of reforms to prevent the resurgence of the rebellion or insurrection or secession or the threat
thereof ... " 21
3. Petitioner nevertheless insists that he being a civilian, his trial by military commission deprives him of his
right to due process, since in his view the due process guaranteed by the Constitution to persons accused of
"ordinary" crimes means judicial process. This argument ignores the reality of the rebellion and the existence
of martial law. It is, of course, essential that in a martial law situation, the martial law administrator must have
ample and sufficient means to quell the rebellion and restore civil order. Prompt and effective trial and
punishment of offenders have been considered as necessary in a state of martial law, as a mere power of
detention may be wholly inadequate for the exigency. 22 " ... martial law ... creates an exception to the general
rule of exclusive subjection to the civil jurisdiction, and renders offenses against the law of war, as well as
those of a civil character, triable, ... by military tribunals. 23 "Public danger warrants the substitution of
executive process for judicial process." 24 . ... "The immunity of civilians from military jurisdiction must,
however, give way in areas governed by martial law. When it is absolutely imperative for public safety, legal
processes can be superseded and military tribunals authorized to exercise the jurisdiction normally vested in
courts. 25 . ..."
xxx xxx xxx
5. ... The guarantee of due process is not a guarantee of any particular form of tribunal in criminal cases. A
military tribunal of competent jurisdiction, accusation in due form, notice and opportunity to defend and trial
before an impartial tribunal, adequately meet the due process requirement. Due process of law does not

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necessarily mean a judicial proceeding in the regular courts.

26

...

This ruling has been affirmed, although not unanimously, in at least six other cases, to wit: Gumaua
v.Espino, 27Buscayno v. Enrile, 28 Sison v. Enrile, 29 Luneta v. Special Military Commission No. 1, 30 Ocampo v. Military
Commission No. 25, 31 and Buscayno v. Military Commission Nos. 1, 2, 6 and 25. 32
These rulings notwithstanding, the petitioners anchor their argument on their prayer that the ruling in Aquino, Jr. be
appraised anew and abandoned or modified accordingly. After a thorough deliberation on the matter, We find cogent
basis for re-examining the same.
Some recent pronouncements of this Court could be considered as attempts to either abandon or modify the ruling in
Aquino, Jr.
In De Guzman v. Hon. Leopando, et al., 33 an officer of the Armed Forces of the Philippines and several other persons
were charged with Serious Illegal Detention before the Court of First Instance of Maguindanao sometime in October,
1982. The military officer sought to effect the transfer of the case against him to the General Court Martial for trial
pursuant to the provisions of Presidential Decree No. 1850. The trial court disallowed such transfer for the reason that
the said Decree is unconstitutional inasmuch as it violates the due process and equal protection clauses of the
Constitution, as well as the constitutional provisions on social justice, the speedy disposition of cases, the republican
form of government, the integrity and independence of the judiciary, and the supremacy of civilian authority over the
military,
When the matter was elevated to this Court by way of a Petition for certiorari, prohibition and mandamus, the Court
decided that a ruling on the constitutional issues raised was not necessary. With the view that practical and procedural
difficulties will result from the transfer sought, this Court resolved to dismiss the Petition for lack of merit.
In Animas v. The Minister of National Defense, 34 a military officer and several civilians were charged with murder
alleged to have been committed sometime in November, 1971. All of the said accused were recommended for
prosecution before a military tribunal. in the course of the proceedings, the said accused went to this Court on a
Petition for certiorari and challenged the jurisdiction of the military tribunal over their case. The petitioners contended
that General Order No. 59 upon which the jurisdiction of the military tribunal is anchored refers only to the crime of
illegal possession of firearms and explosives in relation to other crimes committed with a political complexion. They
stressed that the alleged murder was devoid of any political complexion.
This Court, speaking through Mr. Justice Hugo E. Gutierrez, Jr., ordered the transfer of the criminal proceedings to the
civil courts after noting that with martial law having been lifted in the country in 1981, all cases pending before the
military tribunals should, as a general rule, be transferred to the civil courts. The Court was also of the view that the
crime alleged to have been committed did not have any political complexion. We quote the pertinent portions of the
Decision of the Court, to wit
Inspite or because of the ambiguous nature of ... civilian takeover of jurisdiction was concerned and
notwithstanding the shilly-shallying and vacillation characteristic of its implementation, this Court relied on the
enunciated policy of normalization in upholding the primacy of civil courts. This policy meant that as many
cases as possible involving civilians being tried by military tribunals as could be transferred to civil courts
should be turned over immediately. In case of doubt, the presumption was in favor of civil courts always trying
civilian accused.
xxx xxx xxx
The crime for which the petitioners were charged was committed ... long before the proclamation of martial
law. ... Now that it is already late 1986, and martial law is a thing of the past, hopefully never more to return,
there is no more reason why a murder committed in 1971 should still be retained, at this time, by a military
tribunal.
We agree with the dissenting views of then Justice, now Chief Justice Claudio Teehankee 35 and Madame Justice
Cecilia Munoz Palma 36 in Aquino, Jr. in so far as they hold that military commissions or tribunals have no jurisdiction
to try civilians for alleged offenses when the civil courts are open and functioning.
Due process of law demands that in all criminal prosecutions (where the accused stands to lose either his life or his
liberty), the accused shall be entitled to, among others, a trial. 37 The trial contemplated by the due process clause of
the Constitution, in relation to the Charter as a whole, is a trial by judicial process, not by executive or military process.
Military commissions or tribunals, by whatever name they are called, are not courts within the Philippine judicial
system. As explained by Justice Teehankee in his separate dissenting opinion... Civilians like (the) petitioner placed on trial for civil offenses under general law are entitled to trial by judicial
process, not by executive or military process.
Judicial power is vested by the Constitution exclusively in the Supreme Court and in such inferior courts as
are duly established by law. Judicial power exists only in the courts, which have "exclusive power to hear and

159
determine those matters which affect the life or liberty or property of a citizen.

38

Since we are not enemy-occupied territory nor are we under a military government and even on the premise
that martial law continues in force, the military tribunals cannot try and exercise jurisdiction over civilians for
civil offenses committed by them which are properly cognizable by the civil courts that have remained open
and have been regularly functioning. 39 ...
And in Toth v. Quarles, 40 the U.S. Supreme Court furtherstressed that the assertion of military authority over
civilians cannot rest on the President's power as Commander-in-Chief or on any theory of martial law.
xxx xxx xxx
The U.S. Supreme Court aptly pointed out ... , in ruling that discharged army veterans (estimated to number
more than 22.5 million) could not be rendered "helpless before some latter-day revival of old military charges"
and subjected to military trials for offenses committed while they were in the military service prior to their
discharge, that "the presiding officer at a court martial is not a judge whose objectivity and independence are
protected by tenure and undiminished salary and nurtured by the judicial tradition, but is a military law officer.
Substantially different rules of evidence and procedure apply in military trials. Apart from these differences, the
suggestion of the possibility of influence on the actions of the court martial by the officer who convenes it,
selects its members and the counsel on both sides, and who usually has direct command authority over its
members is a pervasive one in military law, despite strenuous efforts to eliminate the danger."
The late Justice Black ... added that (A) Court-Martial is not yet an independent instrument of justice but
remains to a significant degree a specialized part of the over-all mechanism by which military discipline is
preserved," and that ex-servicemen should be given "the benefits of a civilian court trial when they are actually
civilians ... Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction
deemed absolutely essential to maintaining discipline among troops in active service.
Moreover, military tribunals pertain to the Executive Department of the Government and are simply instrumentalities of
the executive power, provided by the legislature for the President as Commander-in-Chief to aid him in properly
commanding the army and navy and enforcing discipline therein, and utilized under his orders or those of his
authorized military representatives. 41 Following the principle of separation of powers underlying the existing
constitutional organization of the Government of the Philippines, the power and the duty of interpreting the laws as
when an individual should be considered to have violated the law) is primarily a function of the judiciary. 42 It is not, and
it cannot be the function of the Executive Department, through the military authorities. And as long as the civil courts in
the land remain open and are regularly functioning, as they do so today and as they did during the period of martial
law in the country, military tribunals cannot try and exercise jurisdiction over civilians for offenses committed by them
and which are properly cognizable by the civil courts. 43 To have it otherwise would be a violation of the constitutional
right to due process of the civilian concerned.
In addition to this pronouncement, We take note of the observation made by the Solicitor General to the effect that the
death penalty imposed upon the petitioners by the respondent Military Commission No. 34 appears to have been
rendered too hastily to the prejudice to the petitioners, and in complete disregard of their constitutional right to adduce
evidence on their behalf. We quote the pertinent portions of the Manifestation submitted by the Solicitor General, to wit

Prior to the session of December 4, 1984, when the respondent Commission rendered its sentence,
petitioners have requested the prosecution to provide them with copies of the complete record of trial,
including the evidences presented against them, but the prosecution dillydallied and failed to provide them
with the document requested. According to petitioners, they needed the documents to adequately prepare for
their defense.
But a few days before December 4, 1984 the prosecution suddenly furnished them with certain transcripts of
the proceedings which were not complete. Petitioner Othoniel Jimenez was scheduled to start with the
presentation of his evidence on said date and he requested that his first witness be served with subpoena.
The other petitioners, as agreed upon, were to present their evidence after the first one, Othoniel Jimenez,
has finished presenting his evidence. But on that fateful day, December 4, 1984, the witness requested to be
served with subpoena was not around, because as shown by the records, he was not even served with the
requested subpoena. But in spite of that, respondent Military Commission proceeded to ask each one of the
petitioners if they are ready to present their evidence.
Despite their explanation that Othoniel Jimenez cannot proceed because the prosecution, which performs the
duties and functions of clerk of court, failed to subpoena his witness, and that the other petitioners were not
ready because it was not yet their turn to do so, the Commission abruptly decided that petitioners are deemed
to have waived the presentation of evidence in their behalf, and considered the case submitted for resolution.
After a recess of only twenty-five (25) minutes, the session was resumed and the Commission rendered its
sentence finding petitioners guilty of all the charges against them and imposing upon them the penalty of
death by electrocution. 44
Thus, even assuming arguendo that the respondent Military Commission No. 34 does have the jurisdiction to try the

160
petitioners, the Commission should be deemed ousted of its jurisdiction when, as observed by the Solicitor General,
the said tribunal acted in disregard of the constitutional rights of the accused. Indeed, it is well-settled that once a
deprivation of a constitutional right is shown to exist, the tribunal that rendered the judgment in question is deemed
ousted of jurisdiction. 45
Moreover, We find that Proclamation No. 2045 (dated January 17, 1981) officially lifting martial law in the Philippines
and abolishing all military tribunals created pursuant to the national emergency effectively divests the respondent
Military Commission No. 34 (and all military tribunals for that matter) of its supposed authority to try civilians, including
the herein petitioners.
The main opinion in Aquino, Jr. is premised on the theory that military tribunals have the jurisdiction to try civilians as
long as the period of national emergency (brought about by public disorder and similar causes) lasts. Undoubtedly,
Proclamation No. 2045 is an acknowledgment on the part of the Executive Department of the Government that the
national emergency no longer exists. Thereafter, following the theory relied upon in the main opinion, all military
tribunals should henceforth be considered functus officio in their relationship with civilians.
By virtue of the proclamation itself, all cases against civilians pending therein should eventually be transferred to the
civil courts for proper disposition. The principle of double jeopardy would not be an obstacle to such transfer because
an indispensable element of double jeopardy is that the first tribunal which tried the case must be of competent
jurisdiction. 46 As discussed earlier, the military tribunals are devoid of the required jurisdiction.
We take this opportunity to reiterate that as long as the civil courts in the land are open and functioning, military
tribunals cannot try and exercise jurisdiction over civilians for offenses committed by them. Whether or not martial law
has been proclaimed throughout the country or over a part thereof is of no moment. The imprimatur for this
observation is found in Section 18, Article VII of the 1987 Constitution, to wit
A state of martial law, does not suspend the operation of the Constitution, nor supplant the functioning of the
civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and
agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the
writ. (Emphasis supplied.)
This provision in the fundamental law is just one of the many steps taken by the Filipino people towards the restoration
of the vital role of the judiciary in a free country-that of the guardian of the Constitution and the dispenser of justice
without fear or favor.
No longer should military tribunals or commissions exercise jurisdiction over civilians for offenses allegedly committed
by them when the civil courts are open and functioning. No longer may the exclusive judicial power of the civil courts,
beginning with the Supreme Court down to the lower courts 47 be appropriate by any military body or tribunal, or even
diluted under the guise of a state of martial law, national security and other similar labels.
At this juncture, We find it appropriate to quote a few paragraphs from the ponencia of Mr. Justice Gutierrez inAnimas
v. The Minister of National Defense , 48 viz
The jurisdiction given to military tribunals over common crimes and civilian(s) accused at a time when all civil
courts were fully operational and freely functioning constitutes one of the saddest chapters in the history of the
Philippine judiciary.
The downgrading of judicial prestige caused by the glorification of military tribunals, the instability and
insecurity felt by many members of the judiciary due to various causes both real and imagined, and the many
judicial problems spawned by extended authoritarian rule which effectively eroded judicial independence and
self-respect will require plenty of time and determined efforts to cure.
The immediate return to civil courts of all cases which properly belong to them is only a beginning.
And in his separate concurring opinion in Animas, Mr. Chief Justice Teehankee had this to say
I only wish to add that the great significance of our judgment in this case is that we reestablish and reinstate
the fundamental principle based on civilian supremacy over the military as urged in vain in my dissent in the
case of Benigno S. Aquino, Jr. vs. Military Commission No. 2, et al. that "Civilians placed on trial for offenses
under general law are entitled to trial by judicial process, not by executive or military process. Judicial power is
vested by the Constitution exclusively in the Supreme Court and in such inferior courts as are duly established
by law. Military commissions, or tribunals, are not courts and do not form part of the judicial system. Since we
are not enemy-occupied territory nor are we under a military government and even on the premise that martial
law continues in force, the military tribunals cannot try and exercise jurisdiction over civilians for civil offenses
committed by them which are properly cognizable by the civil courts that have remained open and have been
regularly functioning.
xxx xxx xxx
The terrible consequences of subjecting civilians to trial by military process is best exemplified in the sham

161
military trial of the martyred former Senator Benigno S. Aquino, Jr., whereby he was deprived (1) by the
summary ex parte investigation by the Chief prosecution staff of the JAGO of his right to be informed of the
charges against him and of his right to counsel as expressly recognized by Section 20 of the Bill of Rights of
the 1973 Constitution; (2) of his vested statutory right to a preliminary investigation of the subversion charges
against him before the proper court of first instance as required under Section 5 of the Anti-Subversion Act,
R.A. 1700 and of the other charges against him before the proper civilian officials and to confront and crossexamine the witnesses against him under R.A. 5180; (3) of the right to be tried by judicial process, by the
regular independent courts of justice, with all the specific constitutional, statutory and procedural safeguards
embodied in the judicial process and presided over not by military officers; and (4) of the right to appeal to the
regular appellate courts and to judicial review by this Court in the event of conviction and imposition of a
sentence of death or life imprisonment which the charges carry and wherein a qualified majority of ten (10)
votes for affirmance of the death penalty is required. In fine, he was denied due process of law as guaranteed
under the Bill of Rights which further ordains that "No person shall be held to answer for a criminal offense
without due process of law."Worse, his trial by a military tribunal created by the then President and composed
of the said President's own military subordinates without tenure and of non-lawyers (except the law member)
and of whose decision the President is the final reviewing authority as Commander-in-Chief of the Armed
Forces deprived him of a basic constitutional right to be heard by a fair and impartial tribunal, considering that
the said President had publicly declared the evidence against petitioner "not only strong (but) overwhelming"
and thereby prejudged and predetermined his guilt, and none of his military subordinates could be expected to
go against their Commander-in-Chief's declaration.
Hopefully, an these aberrations now belong to the dead and nightmarish past, when time-tested doctrines, to
borrow a phrase from the then Chief Justice, "shrivelled in the effulgence of the overpowering rays of martial
rule. 49
As stated earlier, We have been asked to re-examine a previous ruling of the Court with a view towards abandoning or
modifying the same. We do so now but not without careful reflection and deliberation on Our part. Certainly, the rule of
stare decisis is entitled to respect because stability in jurisprudence is desirable. Nonetheless, reverence for
precedent, simply as precedent, cannot prevail when constitutionalism and the public interest demand otherwise.
Thus, a doctrine which should be abandoned or modified should be abandoned or modified accordingly. After all, more
important than anything else is that this Court should be right. 50
Accordingly, it is Our considered opinion, and We so hold, that a military commission or tribunal cannot try and
exercise jurisdiction, even during the period of martial law, over civilians for offenses allegedly committed by them as
long as the civil courts are open and functioning, and that any judgment rendered by such body relating to a civilian is
null and void for lack of jurisdiction on the part of the military tribunal concerned. 51 For the same reasons, Our
pronouncement in Aquino, Jr. v. Military Commission No. 2 52 and all decided cases affirming the same, in so far as
they are inconsistent with this pronouncement, should be deemed abandoned.
WHEREFORE, in view of the foregoing, the Petitions for habeas corpus are DISMISSED for having become moot and
academic. The Petitions for certiorari and prohibition are hereby GRANTED. The creation of the respondent Military
Commission No. 34 to try civilians like the petitioners is hereby declared unconstitutional and all its proceedings are
deemed null and void. The temporary restraining order issued against the respondents enjoining them from executing
the Decision of the respondent Military Commission No. 34 is hereby made permanent and the said respondents are
permanently prohibited from further pursuing Criminal Case No. MC-34-1 against the petitioners. The sentence
rendered by the respondent Military Commission No. 34 imposing the death penalty on the petitioners is hereby
vacated for being null and void, and all the items or properties taken from the petitioners in relation to the said criminal
case should be returned to them immediately. No pronouncement as to costs.
SO ORDERED.
Yap, Fernando, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Bidin, Sarmiento and Cortes, JJ.,
concur.
Padilla, J., took no part.
Separate Opinions
TEEHANKEE, C. J., concurring:
I hail the Court's unanimous judgment 1 vacating and setting aside the penalty of death by electrocution summarily
imposed by respondent military commission on December 4, 1984 upon the principal petitioners Eduardo Olaguer,
Othoniel Jimenez, Reynaldo Maclang and Ester Misa Jimenez for lack of jurisdiction of military commissions over
civilians, and expressly overturning and rejecting the contrary 1975 ruling in Benigno S. Aquino, Jr. vs. Military
Commission No. 2 2 and subsequent cases, issued during the darkest chapter of our history when time-tested
doctrines guaranteeing a person's right to due process in preservation of his life and liberty, shrivelled in the effulgence
of the overpowering rays of martial rule." We uphold once again the supremacy of the Constitution and of the Rule of
Law and of civilian authority over the military.
1. As petitioners submitted in apparent futility at the time in view of the Aquino ruling, they were denied from the very
beginning elementary due process which guarantees their constitutional right to an impartial trial because, prescinding

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from civilians' right to trial by judicial, not military, process, the President (Commander-in-Chief) and the Defense
Minister who were the supposed targets of petitioners' conspiracy, were also the very authorities who personally
approved the filing of the charges against them and referred them to the respondent commission for trial, and as
reviewing authorities, had the power to reverse or modify every judgment of respondent commission, even a judgment
of acquittal; furthermore, the President and the Defense Minister had the power directly or indirectly to substitute at
pleasure the members of respondent commission, assign them as subordinates to more hazardous or difficult duties
and to promote or prevent their promotion to higher rank. They could hardly be expected to go against their superiors'
declaration of the "overwhelming" evidence against the accused. As stressed in my dissent in Aquino:
Petitioner's plea that his trial by a military tribunal created by the President and composed of the President's
own military subordinates without tenure and of non-lawyers (except the law member) and of whose decision
the President is the final reviewing authority as Commander-in-Chief of the Armed Forces deprives him of a
basic constitutional right to be heard by a fair and impartial tribunal considering that the President has publicly
declared the evidence against petitioner "not only strong (but) overwhelming" and in petitioner's view thereby
prejudged and predetermined his guilt merits consideration.
In Petitioner's view, he has been publicly indicted and his guilt prejudged by the President when in a
nationwide press conference on August 24, 1971 following the Plaza Miranda bombing three days earlier of
the Liberal Party proclamation meeting, the President charged him and disclosed evidence in the possession
of the government linking petitioner to some illegal and subversive activities, in 1965-1971, which are virtually
the same charges now filed against him before respondent military commission, and declared the evidence
against petitioner "not only strong (but) over- whelming The President explained on the same occasion that in
not acting against petitioner, he had erred on the side of generosity as wen as of liberality hoping that good
sense may someday catch up with him" since petitioner was "the only opposition senator left in the Senate"
after the [Plaza Miranda] bombing, but that he did not know "what will happen later on, because, of course, the
military insist that we must not make any exceptions to the general rule.
While one may agree that the President as Commander-in-Chief would discharge his duty as the final
reviewing authority with fealty to his oath "to do justice to every man," particularly because of his renowned
legal sagacity and experience, still under the enviromental facts where the military appears to have been
impressed by the President's appraisal of the evidence and without casting any reflection on the integrity of
the members of respondent military commission which petitioner himself acknowledges, the doctrine
consistently held by the Court that "elementary due process requires a hearing before an impartial and
disinterested tribunal" and that "An suitors ... are entitled to nothing short of the cold neutrality of an
independent, wholly free, disinterested and impartial tribunal" cans for application in the present case. 3
The then President had himself acknowledged the indispensability of the judicial process, stating in the same
nationwide press conference of August 24, 1971 that:
I am a lawyer, my training is oriented towards the protection of the Bin of Rights, because if you will
remember, I have repeatedly said, that if it were not for the Bill of Rights I would not be here now. If it were not
for the judicial process, I would not be President of the Republic of the Philippines. . . . 4
Yet, he denied to Aquino the very self-same right to due process and judicial process.
2. The total unacceptability of military trials for civilians may be appreciated from the fate and ordeal of petitioners.
Since their arrest on December 24, 1979, they had been continuously confined for over five years (without physical
access to lawyers, witnesses and court records in the case of Eduardo Olaguer 5 ) and spent seven Christmases in
confinement, before their provisional release on January 23, 1986 (save petitioner Ester Misa Jimenez whose
provisional release was earlier granted in January, 1981). The extreme difficulties encountered by civilian counsels in
defending them before respondent military commission can best be seen from their written motions/manifestations of
withdrawal as such counsel. Former Senator Lorenzo M. Tanada and Atty. Wigberto Tanada had previously withdrawn
as civilian counsel for petitioner Eduardo Olaguer.
Civilian counsel Sabino Padilla, Jr. for petitioner Othoniel Jimenez was likewise constrained to file on January 10,
1983 his Motion to Withdraw Appearance, stating the following:
1. In the hearing of March 2, 1982, the prosecution moved for the discharge of the accused Carlos Lazaro and
Teodorico Diesmos The prosecution alleged that the requirements of Sec. 9, Rule 119 of the Rules of Court
had been complied with. Considering that trial had commenced one year and a half before the prosecution
made this move, the defense vehemently objected. This Military Commission ruled:
LAW MEMBER:
Please, just listen. We are of the view that this Commission has no authority to discharge the accused
Carlos Lazaro and accused Teodorico Diesmos from the Charge Sheet to be utilized as state
witnesses. In the same manner that the herein accused have been included in the Charge Sheet upon
the approval of the appointing authority, the exclusion or discharge of any of them should likewise
carry the approval of the appointing authority. Therefore, the matter of the discharge of the said two
(2) accused should be addressed to the appointing authority for his consideration. (Tsn, March 2,

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1982, pp. 42-43)
xxx xxx xxx
3. At the start of the hearing last December 13, 1982, the prosecution informed this Military Commission and
the defense that on December 11, 1982 (a Saturday), the Minister of National Defense had ordered the
discharge of the accused Lazaro and Diesmos and that the prosecution would be presenting these accused in
that hearing.
In view of the vital implications of such a discharge on the conduct of the defense of the other accused, all
three counsel of choice immediately moved that the hearing be postponed or that witnesses other than Lazaro
and Diesmos be presented in that hearing, to allow counsel to take to the Supreme Court the ruling of the
Minister of National Defense as well as this Military Commission's abdication of a trial court's jurisdiction to
grant or deny a prosecution motion to discharge an accused.
To the complete surprise and dismay of defense counsel of choice, the prosecution insisted on presenting
Lazaro and Diesmos before the other accused could take to the Supreme Court the legality and propriety of
their discharge as accused to be state witnesses. Counsel of choice had no alternative but to withdraw from
the proceedings that day.
Subsequent events disclosed why Lazaro and Diesmos had to be presented as witnesses on that day,
December 13, 1982. They were to recite, as indeed they recited, a newly fabricated and fantastic story linking
(three years after the fact) the present accused with the accused in the We Forum case, who were being
arraigned that afternoon in the Court of First Instance of Quezon City. Pursuant to this scenario, all the
newspapers the following day carried the same release that the accused herein and those in the We Forum
were members of one conspiracy.
It has thus become abundantly clear to the undersigned counsel that under the present circumstances any
further participation on his part in the proceedings before this Military Commission would not only be futile but
also bring disgrace and dishonor to himself and to the legal profession . 6
Civilian counsel Joaquin L. Misa for his close kin, Ester Misa Jimenez, after prefatory remarks that he "had never
appeared before in a military court land] entertained a degree of confidence in the quality of military justice land] was
reared with a healthy regard for military officers" stated in his written manifestation dated January 10, 1983 that:
... many events in the course of these proceedings have eroded the confidence of the undersigned in
ultimately obtaining justice from this Honorable Commission.
The last straws so to speak, were the events of December 13, 1982. Three hearings of this case prior to the
December 13 hearing were cancelled or postponed upon motion of the Prosecution on the shallow and never
explained excuse that their next supposed witness, Col. Beroya, was not available.On December 13, the
Prosecution read into the record an alleged resolution on the state witness question by the Minister of National
Defense (Note that up to this writing the undersigned has not been served with a copy of that alleged
resolution perhaps because it was written on stationery marked CONFIDENTIAL). After the supposed
resolution by the Minister of National Defense was read into the record, the undersigned moved for a
postponement of even one week to afford the undersigned the opportunity to either ask for a reconsideration
by the Minister or raise the matter to the Supreme Court on Certiorari. The Prosecution's objection was so
vehement that it was incomprehensible to the undersigned why a simple motion could evoke such a violent
reaction from the Prosecution (Cols. Ridao and Disierto seemed to be outdoing each other in the decibels of
their objections). This was especially baffling to the undersigned because theretofore in several instances
when the undersigned inquired if there had been a ruling by "the higher authorities" on the question of the
state witnesses, The Prosecution always assured the undersigned and the other civilian defense counsel that
if a ruling is made, and it is adverse to the defense we will be given enough time to deal with the problem.
As the Commission well knows the defense motion for postponement was denied and two (2) accused who
were released from the case testified in the absence of all the civilian defense counsel. Only upon reading the
newspaper the next day was the indecent haste of the Prosecution to present the two (2) witnesses explained.
The Prosecution, and the Commission by going along with the Prosecution, apparently wanted to time the
newly fabricated testimony of Diesmos and Lazaro linking this case with the We Forum case the arraignment
of which was held on December 13, in the afternoon.
The orchestration and synchronization of such testimony in this case (at the expense of denying the accused
recourse against the resolution of the Minister) with the arraignment in the We Forum case taken together with
the Identically worded newspaper stories appearing in all the dailies now in publication has made it clear to
the undersigned that this case will not be decided on its merits but on the convenience that it affords to the
pursuit of the government's objectives. 7
Respondent military commission furthermore on December 4, 1984 summarily called all proceedings to a halt, denied
any continuation of the case and abruptly declared the case submitted without any evidence for the defense,
notwithstanding that it had not subpoenaed the first defense witness for petitioner Othoniel Jimenez as duly requested,
while the other petitioners were not expected to be ready with their witnesses until later hearings; and after a mere 25-

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minute recess, rendered its "judgment" imposing the death penalty by electrocution on all the above-named
petitioners. No objection to this bizzarre procedure came from military counsels who were assigned to represent
petitioners after their civilian counsels' withdrawal, for as the Solicitor General now manifested, "the records show,
they more often than not practically acted for the prosecution rather than as defense counsels. " 7a
3. I hail the Court's reinstatement of the settled ruling in this jurisdiction that deprivation and disregard of the
constitutional rights of an accused ousts the court or tribunal of jurisdiction, which had been greatly eroded. This
reenforces the 1987 Constitution's reaffirmation of the role of the Supreme Court as the guarantor of the constitutional
and human rights of all persons within its jurisdiction with the function of seeing to it that these rights are respected
and enforced. As the Court stressed in Gumabon vs. Director of Bureau of Prisons 8 "Once a deprivation of a
constitutional right is shown to exist, the court that rendered the judgment is deemed ousted of jurisdiction and habeas
corpus is the appropriate remedy to assail the legality of the detention. 9 So accused persons who are deprived of their
constitutional right of a speedy trial should be set at liberty. 10 Likewise persons detained indefinitely without charges
so much so that the detention becomes punitive and not merely preventive in character are entitled to regain their
freedom, for the spirit and the letter of our Constitution negates as contrary to the precepts of human rights and
freedom that a person be detained indefinitely without any charges.
4. Indeed, Art. VII, section 18 of the 1987 Constitution, drawing upon the sad lessons of the excessive concentration of
powers in the Chief Executive in the previous Constitutions which enabled him to exercise absolute power to the point
of taking over the entire government, has provided for measures to curtail such abuse of executive power. The late
former Chief Justice Roberto Concepcion, pillar and champion of the Rule of Law, chairman of the 1986 Constitutional
Commission's Judiciary Committee and Chief Justice of the Supreme Court at the time of the imposition of martial law
in 1972, summarized these salutary changes, in his last public address, as follows:
1. Under the New Constitution, martial law does not suspend the operation of the New Constitution or
supplant the functioning of the civil courts or legislative assemblies. Neither does it authorize the conferment
of jurisdiction on military courts and agencies over civilians when civil courts are able to function.
2. Martial law does not supplant the civil courts when the same are able to function.
3. Martial law does not automatically suspend the privilege of the writ of habeas corpus.
4. Martial law may not be declared upon the ground of imminent danger of invasion or rebellion. in the event of
such danger, the President may call the armed forces to prevent or suppress the danger, without declaring
martial law or suspending the privilege of the will it.
5. Within forty-eight (48) hours after the proclamation of martial law, the President shall report the same to
Congress in person or in writing.
6. Congress may, by a majority vote of all its members, revoke the proclamation of martial law or the
suspension of the privilege of the writ, which action of Congress may not be set aside by the President.
7. The proclamation of martial law or suspension or the privilege of the writ by the President, may not exceed
sixty (60) days without the concurrence of Congress.
8. The Supreme Court has been expressly authorized to "review in an appropriate proceeding filed by any
citizen the sufficiency of the factual basis of the proclamation of martial law or of the suspension of the
privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty (30) days
from its filing."
9. Under the "1973 Constitution," as amended, at least ten (10) votes of the members of the Supreme Court
were necessary to invalidate or declare a law unconstitutional, regardless of the number of vacancies in the
Supreme Court or the number of its members who participated in the deliberations on the issues involved in
the case, and voted thereon. Under the New Constitution a simple majority of the members who took part in
such deliberation and cast their votes thereon is sufficient.
10. In the case of suspension of the privilege of the writ, the same does not apply to persons who have not
been placed under the custody of a court of justice.
11. In case of suspension of the privilege of the writ, the person detained must be released unless judicially
charged within three (3) days. 11
These substantial checks by the legislature as well as by the judiciary on the Chief Executive's power to proclaim
martial law or to suspend the privilege of the writ of habeas corpus were meant to forestall a recurrence of the long
and horrible nightmare of the past regime when one single clause, the Commander-in-Chief clause of the Constitution
then in force that authorized the President to declare martial law was held to have nullified the entire Constitution and
the Bill of Rights and justified the then President's taking over "absolute command" of the nation and that the people
could "only trust and pray that, giving him their own loyalty with utmost patriotism, (he) will not fail them." Thus,
persons held under Presidential Commitment or Detention Orders were detained indefinitely without charges, yet had
no recourse to the courts. Even if they were acquitted in court, the military would not release them until and unless the
then President lifted the preventive detention order. 12 It was a long and horrible nightmare when our people's rights,
freedoms and liberties were sacrificed at the altar of "national security" even though it involved nothing more than the
President-dictator's perpetuation in office and the security of his relatives and some officials in high positions and their
protection from public accountability of their acts of venality and deception in government, many of which were of
public knowledge.
Draconian decrees were issued whereby many were locked up indefinitely for "rumor-mongering," "unlawful use of
means of publication and unlawful utterances, and alarms and scandals." While the people for the most part suffered
in silence and waited, others never gave up the struggle for truth, freedom, justice and democracy, a common
commitment which is what makes a people a nation instead of a gathering of self-seeking individuals. The national will
was systematically undermined to the point, of national mockery, that the day of imposition of martial law was
proclaimed as "National Thanksgiving Day." As the Court observed through Mr. Justice Gutierrez in Animas vs.
Minister of National Defense, 13 the era of martial law when military tribunals, against all tenets of due process, were

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conferred jurisdiction over common crimes and civilians, their glorification with the downgrading of judicial prestige and
"the many judicial problems spawned by extended authoritarian rule which effectively eroded judicial independence
and self-respect will require plenty of time and determined efforts to cure."
5. The treacherous assassination on August 21, 1983 of the martyred Benigno S. Aquino, Jr., within minutes of his
arrival at the Manila International Airport, although ringed with 2,000 soldiers, shocked and outraged the conscience of
the nation. After three years of exile following almost eight years of detention since martial law, Aquino, although facing
the military commission's predetermined death sentence, supra, yet refused proper travel documents, was returning
home "to strive for genuine national reconciliation founded on justice." The late Senator Jose W. Diokno who passed
away this year was among the first victims of the martial law coup d'etat to be locked up with Senator Aquino. In
March, 1973, all of their personal effects, including their eyeglasses were ominously returned to their homes. Their
wives' visitation privileges were suspended and they lost all contact for over a month. It turned out that Aquino had
smuggled out of his cell a written statement critical of the martial law regime. In swift retribution, both of them were
flown out blindfolded to the army camp at Fort Laur in Nueva Ecija and kept in solitary confinement in dark boarded
cells with hardly any ventilation. When their persons were produced before the Court on habeas corpus proceedings,
they were a pitiable sight having lost about 30 to 40 lbs. in weight. Senator Diokno was to be released in September,
1974 after almost two years of detention. No charges of any kind were ever filed against him. His only fault was that
he was a possible rival for the presidency.
Horacio Morales, Jr., 1977 TOYM awardee for government service and then executive vice-president of the
Development Academy of the Philippines, was among the hard-working government functionaries who had been
radicalized and gave up their government positions. Morales went underground on the night he was supposed to
receive his TOYM award, declaring that "(F)or almost ten years, I have been an official in the reactionary government,
serviced the Marcos dictatorship and all that it stands for, serving a ruling system that has brought so much suffering
and misery to the broad masses of the Filipino people. (1) refuse to take any more part of this. I have had enough of
this regime's tyranny and treachery, greed and brutality, exploitation and oppression of the people," and "(I)n rejecting
my position and part in the reactionary government, I am glad to be finally free of being a servant of foreign and local
vested interest. I am happy to be fighting side by side with the people." He was apprehended in 1982 and was
charged with the capital crime of subversion, until he was freed in March, 1986 after President Corazon C. Aquino's
assumption of office, together with other political prisoners and detainees and prisoners of conscience in fulfillment of
her campaign pledge.
Countless others forfeited their lives and stand as witnesses to the tyranny and repression of the past regime. Driven
by their dreams to free our motherland from poverty, oppression, iniquity and injustice, many of our youthful leaders
were to make the supreme sacrifice. To mention a few: U.P. Collegian editor Abraham Sarmiento, Jr., worthy son of an
illustrious member of the Court pricked the conscience of many as he asked on the front page of the college
paper: Sino ang kikibo kung hindi tayo kikibo? Sino ang kikilos kung hindi tayo kikilos? Kung hindi ngayon, kailan
pa? 13a He was locked up in the military camp and released only when he was near death from a severe attack of
asthma, to which he succumbed. Another TOYM awardee, Edgar Jopson, an outstanding honor student at the Ateneo
University, instinctively pinpointed the gut issue in 1971-he pressed for a "non-partisan Constitutional Convention;"
and demanded that the then president-soon-to-turn dictator "put down in writing" that he was not going to manipulate
the Constitution to remove his disqualification to run for a third term or perpetuate himself in office and was called
down as "son of a grocer." When as he feared, martial law was declared, Jopson went underground to continue the
struggle and was to be waylaid and killed at the age of 34 by 21 military troops as the reported head of the rebel
movement in Mindanao. 14 Another activist honor student leader, Emmanuel Yap, son of another eminent member of
the Court, was to disappear on Valentine's Day in 1976 at the young age of 24, reportedly picked up by military agents
in front of Channel 7 in Quezon City, and never to be seen again.
One of our most promising young leaders, Evelio B. Javier, 43, unarmed, governor of the province of Antique at 28, a
Harvard-trained lawyer, was mercilessly gunned down with impunity in broad daylight at 10 a.m. in front of the
provincial capitol building by six mad-dog killers who riddled his body with 24 bullets fired from M-16 armalite rifles (the
standard heavy automatic weapon of our military). He was just taking a breather and stretching his legs from the
tedious but tense proceedings of the canvassing of the returns of the presidential snap election in the capitol building.
This was to be the last straw and the bloodless EDSA revolt was soon to unfold. The Court inJavier vs.
Comelec, 15 through Mr. Justice Cruz, "said these meager words in tribute to a fallen hero who was struck down in the
vigor of his youth because he dared to speak against tyranny. Where many kept a meekly silence for fear of
retaliation, and still others feigned and fawned in hopes of safety and even reward, he chose to fight. He was not
afraid. Money did not tempt him. Threats did not daunt him. Power did not awe him. His was a singular and allexacting obsession: the return of freedom to his country. And though he fought not in the barricades of war amid the
sound and smoke of shot and shell, he was a soldier nonetheless, fighting valiantly for the liberties of his people
against the enemies of his race, unfortunately of his race too, who would impose upon the land a perpetual night of
dark enslavement. He did not see the breaking of the dawn, sad to say, but in a very real sense Evelio B. Javier made
that dawn draw nearer because he was, like Saul and Jonathan, "swifter than eagles and stronger than lions." "
6. The greatest threat to freedom is the shortness of human memory. We must note here the unforgettable and noble
sacrifices of the countless brave and patriotic men and women who feel as martyrs and victims during the long dark
years of the deposed regime. In vacating the death sentence imposed on the petitioners who survived the holocaust,,
we render them simple justice and we redeem and honor the memory of those who selflessly offered their lives for the
restoration of truth, decency, justice and freedom in our beloved land. Due recognition must be given also that 85% of
the Armed Forces of the Philippines readily joined the EDSA revolt and redeemed the honor of the military by
recognizing civilian supremacy and the supreme mandate given by the people to the true winners of the elections.
Witness the testimony of Gen. Fidel V. Ramos now chief of the new Armed Forces of the Philippines, as he recounted

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early last year his breakaway from the past regime:
The Armed Forces of the Philippines had ceased to be the real armed forces supposed to be the defender of
the people. There had developed an elite group within the AFP ... and the AFP no longer represented its rank
and file and officers corps.
Mr. Marcos was no longer the same President that we used to know, to whom we pledged our loyalty and
dedicated our services. He was no longer the able and capable commander-in-chief whom we used to count
on. He had already put his personal interest, his family interest, above the interest of the people.
The small people in the AFP and the Integrated National Police were now being pushed around by powerful
military officers motivated by very selfish desires and intentions. Many of those officers were now practically
the servants of powerful politicians. 16
The present PC/INP Chief, Major General Renato de Vina, on the 85th anniversary of the Philippine Constabulary last
August 8th publicly stated that "for the perfidy of a few, we owe the whole nation a sincere apology and a commitment
to intensively pursue our new program of reforms, to weed out the misfits who bring discredit to our organization," and
solemnly pledged that "now and forever, your PC/INP stands ready and committed to fight lawlessness, injustice and
oppression, as well as the sinister forces that continue to threaten our stability and progress as a free country. We
make this solemn pledge here and now, before our entire nation, before our Commander-in-Chief who is the
personification of our national honor and unity, before God who has always blessed our people ... to consecrate our
lives to the protection and preservation of our national Ideals-of unity, peace, justice and democracy."
7. The people by their overwhelming ratification of the 1987 Constitution at the plebiscite held last February 2nd
unequivocally reaffirmed their collective act of installing our new government following the bloodless EDSA revolt.
They re fused to be deterred by the last-ditch efforts of the forces of the Right and of the Left to derail our return to fun
normalcy and the restoration of our democratic institutions. They proclaimed a renewed and vigorous faith in the
democratic process. Among the great changes introduced in the 1987 Constitution to harness the Presidential power
to impose martial law and strengthen the system of checks and balances in our government were those made by the
venerable late Chief Justice Roberto Concepcion and his fellow members of the 1986 Constitutional Commission,
hereinabove enumerated. 17 With their work completed, and the 1987 Constitution decisively approved and ratified by
the people, Chief Justice Concepcion could then claim his eternal rest on last May 3rd and leave us this legacy and
caueat: "One thing," he said, "I have learned during the martial law regime, and that is-that a Constitution is as good
only as it is enforced. ... the Primacy of the Law depends ultimately upon the people; upon their awareness of this fact
and their willingness and readiness to assume the corresponding responsibility, in short, upon their political
maturity." 18