[G.R. No. 34674. October 26, 1931.] MAURICIO CRUZ, petitioner-appellant, vs.

STANTON YOUNGBERG, Director of the Bureau of Animal Industry, respondent-appellee.

Jose Yulo, for appellant. Solicitor-General Reyes, for appellee.

SYLLABUS 1.STATUTES; CONSTITUTIONALITY OF. Act No. 3155 is entirely valid. The Legislature passed this Act to protect the cattle industry of the country and to prevent the introduction of cattle diseases through the importation of foreign cattle. It is now generally recognized that the promotion of industries affecting the public welfare and the development of the resources of the country are objects within the scope of the police power (12 C. J., 927; 6 R. C. L., 203-206, and decision cited therein; Reid vs. Colorado, 187 U.S., 137, 147, 152; Yeazel vs. Alexander, 58 Ill., 254.) It has been shown that at the time Act No. 3155 was promulgated there was reasonable necessity therefor and it cannot be said that the Legislature exceeded its power in passing the Act. That being so, it is not for this court to avoid or vacate the Act upon constitutional grounds nor will it assume to determine whether the measures are wise or the best that might have been adopted. (6 R. C. L., 243 and decisions cited therein.) 2.ID.; DELEGATION OF POWER. The power given by Act No. 3155 to the Governor-General to suspend or not, at his discretion, the prohibition provided in the Act does not constitute an unlawful delegation of the legislative powers, but confers an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made. 3.ID.; TARIFF LAW, ACT NO. 3155 AMENDMENT OF. Act No. 3155 is not an absolute prohibition of the importation of cattle and it does not add any provision to section 3 of the Tariff Law. It is not an amendment of the Tariff Law.

DECISION

OSTRAND, J :
p

This is a petition brought originally before the Court of First Instance of Manila for the issuance of a writ of mandatory injunction against the respondent, Stanton Youngberg, as Director of the Bureau of Animal Industry, requiring him to issue a permit for the landing of ten large cattle imported by the petitioner and for the slaughter thereof. The petitioner attacked the constitutionality of Act No. 3155, which at present prohibits the importation of cattle from foreign countries into the Philippine Islands. Among other things in the allegations of the petition, it is asserted that "Act No. 3155 of the Philippine Legislature was enacted for the sole purpose of preventing the introduction of cattle diseases into the Philippine Islands from foreign countries, as shown by an explanatory note and text of Senate Bill No. 328 as introduced in the Philippine Legislature, . . ." The Act in question reads as follows:
"SECTION 1.After March thirty-first, nineteen hundred and twenty-five existing contracts for the importation of cattle into this country to the contrary notwithstanding, it shall be strictly prohibited to

import, bring or introduce into the Philippine Islands any cattle from foreign countries: Provided, however, That at any time after said date, the Governor-General, with the concurrence of the presiding officers of both Houses, may raise such prohibition entirely or in part if the conditions of the contrary make this advisable or if disease among foreign cattle has ceased to be a menace to the agriculture and live stock of the lands. "SEC. 2.All acts or parts of acts inconsistent with this Act are hereby repealed. "SEC. 3.This Act shall take effect on its approval. "Approved, March 8, 1924."

The respondent demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was based on two reasons, namely, (1) that if Act No. 3155 were declared unconstitutional and void, the petitioner would not be entitled to the relief demanded because Act No. 3052 would automatically become effective and would prohibit the respondent from giving the permit prayed for; and (2) that Act No. 3155 was constitutional and, therefore, valid. The court sustained the demurrer and the complaint was dismissed by reason of the failure of the petitioner to file another complaint. From that order of dismissal, the petitioner appealed to this court. The appellee contends that even if Act No. 3155 be declared unconstitutional by the fact alleged by the petitioner in his complaint, still the petitioner can not be allowed to import cattle from Australia for the reason that, while Act No. 3155 were declared unconstitutional, Act No. 3052 would automatically become effective. Act No. 3052 reads as follows:
"SECTION 1.Section seventeen hundred and sixty-two of Act Numbered Twenty-seven hundred and eleven, known as the Administrative Code, is hereby amended to read as follows: " 'SEC. 1762.Bringing of animals imported from foreign countries into the Philippine Islands . It shall be unlawful for any person or corporation to import, bring or introduce live cattle into the Philippine Islands from any foreign country. The Director of Agriculture may, with the approval of the head of the department first had, authorize the importation, bringing or introduction of various classes of thoroughbred cattle from foreign countries for breeding the same to the native cattle of these Islands, and such as may be necessary for the improvement of the breed, not to exceed five hundred head per annum:Provided, however, That the Director of Agriculture shall in all cases permit the importation, bringing or introduction of draft cattle and bovine cattle for the manufacture of serum: Provided, further, That all live cattle from foreign countries the importation, bringing or introduction of which into the Islands is authorized by this Act, shall be submitted to regulations issued by the Director of Agriculture, with the approval of the head of the department, prior to authorizing its transfer to other provinces. " 'At the time of the approval of this Act, the Governor-General shall issue regulations and orders to provide against a raising of the price of both fresh and refrigerated meat. The GovernorGeneral also may, by executive order, suspend, this prohibition for a fixed period in case local conditions require it.' "SEC. 2.This Act shall take effect six months after approval. "Approved, March 14, 1922."

The petitioner does not present any allegation in regard to Act No. 3052 to show its nullity or unconstitutionality though it appears clearly that in the absence of Act No. 3155 the former act would make it impossible for the Director of the Bureau of Animal Industry to grant the petitioner a permit for the importation of the cattle without the approval of the head of the corresponding department.
"An unconstitutional statute can have no effect to repeal former laws or parts of laws by implication, since, being void, it is not inconsistent with such former laws." (I Lewis' Sutherland, Statutory Construction 2d ed., p. 458, citing McAllister vs. Hamlin, 83 Cal., 361; 23 Pac., 357; Orange County vs. Harris, 97 Cal., 600; 32 Pac., 594; Carr vs. State, 127 Ind., 204; 11 L. R. A., 370, etc.)

This court has several times declared that it will not pass upon the constitutionality of statutes unless it is necessary to do so (McGirr vs. Aldanese and Trinidad, 43 Phil., 259) but in this case it is not 2

necessary to pass upon the validity of the statute attacked by the petitioner because even if it were declared unconstitutional, the petitioner would not be entitled to relief inasmuch as Act No. 3052 is not in issue. But aside from the provisions of Act No. 3052, we are of the opinion that Act No. 3155 is entirely valid. As shown in paragraph 8 of the amended petition, the Legislature passed Act No. 3155 to protect the cattle industry of the country and to prevent the introduction of cattle diseases through the importation of foreign cattle. It is now generally recognized that the promotion of industries affecting the public welfare and the development of the resources of the country are objects within the scope of the police power (12 C.J., 927; 6 R. C. L., 203-206 and decisions cited therein; Reid vs. Colorado, 187 U. S., 137, 147, 152; Yeazel vs.Alexander, 58 Ill., 254). In this connection it is said in the case of Punzalan vs. Ferriols and Provincial Board of Batangas (19 Phil., 214), that the provisions of the Act of Congress of July 1, 1902, did not have the effect of denying to the Government of the Philippine Islands the right to the exercise of the sovereign police power in the promotion of the general welfare and the public interest. The facts recited in paragraph 8 of the amended petition shows that at the time the Act No. 3155 was promulgated there was reasonable necessity therefor and it cannot be said that the Legislature exceeded its power in passing the Act. That being so, it is not for this court to avoid or vacate the Act upon constitutional grounds nor will it assume to determine whether the measures are wise or the best that might have been adopted. (6 R. C. L., 243 and decisions cited therein.) In his third assignment of error the petitioner claims that "The lower court erred in not holding that the power given by Act No. 3155 to the Governor-General to suspend or not, at his discretion, the prohibition provided in the act constitutes an unlawful delegation of the legislative powers." We do not think that such is the case; as Judge Ranney of the Ohio Supreme Court in Cincinnati, Wilmington and Zanesville Railroad Co. vs. Commissioners of Clinton County (1 Ohio St., 77, 88) said in such case:
"The true distinction, therefore, is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made."

Under his fourth assignment of error the appellant argues that Act No. 3155 amends section 3 of the Tariff Law, but it will be noted that Act No. 3155 is not an absolute prohibition of the importation of cattle and it does not add any provision to section 3 of the Tariff Law. As stated in the brief of the Attorney-General: "It is a complete statute in itself. It does not make any reference to the Tariff Law. It does not permit the importation of articles, whose importation is prohibited by the Tariff Law. It is not a tariff measure but a quarantine measure, a statute adopted under the police power of the Philippine Government. It is at most a 'supplement' or an 'addition' to the Tariff Law. (See MacLeary vs. Babcock, 82 N. E., 453, 455; 169 Ind., 228 for distinction between 'supplemental' and 'amendatory' and O'Pry vs. U. S., 249 U. S., 323; 63 Law. ed., 626, for distinction between 'addition' and 'amendment.')" The decision appealed from is affirmed with the costs against the appellant. So ordered.

Avancea, C.J., Johnson, Street, Malcolm, Villamor, Romualdez, Villa-Real and Imperial, JJ., concur.
[G.R. Nos. L-8895 & L-9191. April 30, 1957.] SALVADOR ARANETA, ETC., ET AL., petitioners, vs. THE HON. MAGNO S. GATMAITAN, ETC., ET AL., respondents. EXEQUIEL SORIANO, ET AL., petitionersappellees, vs. SALVADOR ARANETA, ETC., ET AL., respondents-appellants.

Solicitor General Ambrosio Padilla, Assistant Solicitor General Jose G. Bautista and Solicitor Troadio T. Quiazon for petitioners. San Juan, Africa & Benedicto for respondents.
SYLLABUS 1.PLEADING AND PRACTICE; ACTIONS; DECLARATORY RELIEF; CONSTITUTIONALITY OF EXECUTIVE ORDER PROPER SUBJECT OF ACTION. The constitutionality of an executive order can be ventilated in a declaratory relief proceeding. (Hilado vs. De la Costa, 83 Phil., 471). 2.ID.; APPEALS; EFFECT ON EXECUTION OF JUDGMENT; EXCEPTION. It is an elementary rule of procedure that an appeal stays the execution of a judgment. However in injunction, receivership and patent accounting cases, a judgment shall not be stayed after its rendition and before an appeal is taken or during the pendency of an appeal unless otherwise ordered by the court. (Sec. 4, Rule 39, Rules of Court). 3.ID.; ID.; ID.; INJUNCTION; ISSUANCE RESTS IN SOUND DISCRETION OF COURT; CASE AT BAR. The State's counsel contends that while judgment could be stayed in injunction, receivership and patent accounting cases, the present complaint, although styled "Injunction and/or Declaratory Relief with Preliminary Injunction," is one for declaratory relief, there being no allegation sufficient to convince the Court that the plaintiffs intended it to be one for injunction. But aside from the title of the complaint, plaintiffs pray for the declaration of the nullity of Executive Orders Nos. 22, 66 and 80; the issuance of a writ of preliminary injunction, and for such other relief as may be deemed just and equitable. This Court has already held that there are only two requisites to be satisfied if an injunction is to issue, namely, the existence of the right sought to be protected, and that the acts against which the injunction is to be directed are violative of said right (North Negros Sugar Co., Inc. vs. Serafin Hidalgo, 63 Phil., 664). There is no question that in the case at bar, at least 11 of the complaining trawl operators were duly licensed to operate in any of the national waters of the Philippines, and it is undeniable that the executive enactments sought to be annulled are detrimental to their interests. And considering further that the granting or refusal of an injunction, whether temporary or permanent, rests in the sound discretion of the Court, taking into account the circumstances and the facts of the particular case (Rodulfa vs. Alfonso, 42 Off. Gaz., 2439), the trial Court committed no abuse of discretion when it treated the complaint as one for injunction and declaratory relief and executed the judgment pursuant to the provisions of section 4 of Rule 39 of the Rules of Court. 4.ID.; ID.; ACTION AGAINST GOVERNMENT OFFICIALS IS ONE AGAINST GOVERNMENT; BOND REQUIREMENT. An Action against Government officials sued in their official capacity, is essentially one against the Government, and to require these officials to file a bond would be indirectly a requirement against the Government, for as regards bonds or damages that may be proved, if any, the real party in interest would be the Republic of the Philippines (L. S. Moom and Co. vs. Harrison, 43 Phil., 39; Salgado vs. Ramos, 64 Phil., 724-727, and others). The reason for this pronouncement is understandable; the State undoubtedly is always solvent (Tolentino vs. Carlos, 66 Phil., 140; Government of the P. I. vs. Judge of First Instance of Iloilo, 34 Phil., 157, cited in Joaquin Gutierrez et al. vs. Camus et al., 96 Phil., 114). 5.FISHERIES LAW; TRAWL FISHING; WHO MAY BAN OR RESTRICT TRAWL FISHING; POWER OF PRESIDENT THROUGH EXECUTIVE ORDERS, TO BAN TRAWL FISHING. Under sections 75 and 83 of the Fisheries Law, the restriction and banning of trawl fishing from all Philippine waters come within the powers of the Secretary of Agriculture and Natural Resources, who, in compliance with his duties may even cause the criminal prosecution of those who in violation of his instructions, regulations or orders are caught fishing with trawls in Philippine waters. However, as the Secretary of Agriculture and Natural Resources exercises its functions subject to the general supervision and control of the President of the 4

Philippines (Section 75, Revised Administrative Code), the President can exercise the same power and authority through executive orders, regulations, decrees and proclamations upon recommendation of the Secretary concerned (Section 79-A, Revised Administrative Code). Hence, Executive Orders Nos. 22, 66 and 80, series of 1954, restricting and banning of trawl fishing from San Miguel Bay (Camarines) are valid and issued by authority of law. 6.ID.; ID.; ID.; ID.; EXERCISE OF AUTHORITY BY THE PRESIDENT DOES NOT CONSTITUTE UNDUE DELEGATION OF LEGISLATIVE POWERS. For the protection of fry or fish eggs and small and immature fishes, Congress intended with the promulgation of Act No. 4003, to prohibit the use of any fish net or fishing device like trawl nets that could endanger and deplete the supply of sea food, and to that end authorized the Secretary of Agriculture and Natural Resources to provide by regulations such restrictions as he deemed necessary in order to preserve the aquatic resources of the land. In so far as the protection of fish fry or fish eggs is concerned the Fisheries Act is complete in itself leaving only to the Secretary of Agriculture & Natural Resources the promulgation of rules and regulations to carry into effect the legislative intent. Consequently, when the President, in response to the clamor of the people and authorities of Camarines Sur issued Executive Order No. 80 absolutely prohibiting fishing by means of trawls in all waters comprised within the San Miguel Bay, he did nothing but show an anxious regard for the welfare of the inhabitants of said coastal province and dispose of issues of general concern (Section 63, Revised Administrative Code) which were in consonance and strict conformity with the law. The exercise of such authority did not, therefore, constitute an undue delegation of the powers of Congress.

DECISION

FELIX, J :
p

San Miguel Bay, located between the provinces of Camarines Norte and Camarines Sur, a part of the National waters of the Philippines with an extension of about 250 square miles and an average depth of approximately 6 fathoms (Otter trawl explorations in Philippine waters p. 21, Exh. B), is considered as the most important fishing area in the Pacific side of the Bicol region. Sometime in 1950, trawl 1 operators from Malabon, Navotas and other places migrated to this region most of them settling at Sabang, Calabanga, Camarines Sur, for the purpose of using this particular method of fishing in said bay. On account of the belief of sustenance fishermen that the operation of this kind of gear caused the depletion of the marine resources of that area, there arose a general clamor among the majority of the inhabitants of coastal towns to prohibit the operation of trawls in San Miguel Bay. This move was manifested in the resolution of December 18, 1953 (Exh. F), passed by the Municipal Mayors' League condemning the operation of trawls as the cause of the wanton destruction of the shrimp specie and resolving to petition the President of the Philippines to regulate fishing in San Miguel Bay by declaring it closed for trawl fishing at a certain period of the year. In another resolution dated March 27, 1954, the same League of Municipal Mayors prayed the President to protect them and the fish resources of San Miguel Bay by banning the operation of trawls therein (Exh. 4). The Provincial Governor also made proper representations to this effect and petitions in behalf of the non-trawl fishermen were likewise presented to the President by social and civic organizations as the NAMFREL (National Movement for Free Elections) and the COMPADRE (Committee for Philippine Action in Development, Reconstruction and Education), recommending the cancellation of the licenses of trawl operators after investigation, if such inquiry would substantiate the charges that the operation of said fishing method was detrimental to the welfare of the majority of the inhabitants (Exh. 2). In response to these pleas, the President issued on April 5, 1954, Executive Order No. 22 (50 Off. Gaz., 1421) prohibiting the use of trawls in San Miguel Bay, but said executive order was amended by 5

Executive Order No. 66, issued on September 23, 1954 (50 Off. Gaz., 4037), apparently in answer to a resolution of the Provincial Board of Camarines Sur recommending the allowance of trawl fishing during the typhoon season only. On November 2, 1954, however, Executive Order No. 80 (50 Off. Gaz., 5198) was issued reviving Executive Order No. 22, to take effect after December 31, 1954. A group of Otter trawl operators took the matter to the court by filing a complaint for injunction and/or declaratory relief with preliminary injunction with the Court of First Instance of Manila, docketed as Civil Case No. 24867, praying that a writ of preliminary injunction be issued to restrain the Secretary of Agriculture and Natural Resources and the Director of Fisheries from enforcing said executive order; to declare the same null and void, and for such other relief as may be just and equitable in the premises. The Secretary of Agriculture and Natural Resources and the Director of Fisheries, represented by the Legal Adviser of said Department and a Special Attorney of the Office of the Solicitor General, answered the complaint alleging, among other things, that of the 18 plaintiffs (Exequiel Soriano, Teodora Donato, Felipe Concepcion, Venancio Correa, Santo Gaviana, Alfredo General, Constancio Gutierrez, Arsenio de Guzman, Pedro Lazaro, Porfirio Lazaro, Deljie de Leon, Jose Nepomuceno, Bayani Pingol, Claudio Salgado, Porfirio San Juan, Luis Sioco, Casimiro Villar and Enrique Voluntad), only 11 were issued licenses to operate fishing boats for the year 1954 (Annex B, petition L-8895); that the executive orders in question were issued in accordance with law; that the encouragement by the Bureau of Fisheries of the use of Otter trawls should not be construed to mean that the general welfare of the public could be disregarded, and set up the affirmative defenses that since plaintiffs question the validity of the executive orders issued by the President, then the Secretary of Agriculture and Natural Resources and the Director of Fisheries were not the real parties in interest; that said executive orders do not constitute a deprivation of property without due process of law, and therefore prayed that the complaint be dismissed (Exh. B, petition, L-8895). During the trial of the case, the Governor of Camarines Sur appearing for the municipalities of Siruma, Tinambac, Calabanga, Cabusao and Sipocot, in said province, called the attention of the Court that the Solicitor General had not been notified of the proceeding. To this manifestation, the Court ruled that in view of the circumstances of the case, and as the Solicitor General would only be interested in maintaining the legality of the executive orders sought to be impugned, Section 4 of Rule 66 could be interpreted to mean that the trial could go on and the Solicitor General could be notified before judgment is entered. After the evidence for both parties was submitted and the Solicitor General was allowed to file his memorandum, the Court rendered decision on February 2, 1955, the last part of which reads as follows:
"The power to close any definite area of the Philippine waters, from the fact that Congress has seen fit to define under what conditions it may be done by the enactment of the sections cited, in the mind of Congress must be of transcendental significance. It is primarily within the fields of legislation not of execution; for it goes far and says who can and who can not fish in definite territorial waters. The court can not accept that Congress had intended to abdicate its inherent right to legislate on this matter of national importance. To accept respondents' view would be to sanction the exercise of legislative power by executive decrees. If it is San Miguel Bay now, it may be Davao Gulf tomorrow, and so on. That may be done only by Congress. This being the conclusion, there is hardly need to go any further. Until the trawler is outlawed by legislative enactment, it cannot be banned from San Miguel Bay by executive proclamation. The remedy for respondents and population of the coastal towns of Camarines Sur is to go to the Legislature. The result will be to issue the writ prayed for, even though this be to strike at public clamor and to annul the orders of the President issued in response therefor. This is a task unwelcome and unpleasant; unfortunately, courts of justice use only one measure for both the rich and poor, and are not bound by the more popular cause when they give judgments. "IN VIEW WHEREOF, granted; Executive Order Nos. 22, 66 and 80 are declared invalid; the injunction prayed for is ordered to issue; no pronouncement as to costs".

Petitioners immediately filed an ex-parte motion for the issuance of a writ of injunction which was opposed by the Solicitor General and after the parties had filed their respective memoranda, the Court issued an order dated February 19, 1955, denying respondents' motion to set aside judgment and ordering them to file a bond in the sum of P30,000 on or before March 1, 1955, as a condition for the non- issuance of the injunction prayed for by petitioners pending appeal. The Solicitor General filed a motion for reconsideration which was denied for lack of merit, and the Court, acting upon the motion for new trial filed by respondents, issued another order on March 3, 1955, denying said motion and granting the injunction prayed for by petitioners upon the latter's filing a bond for P30,000 unless respondents could secure a writ of preliminary injunction from the Supreme Court on or before March 15, 1955. Respondents, therefore, brought the matter to this Court in a petition for prohibition and certiorari with preliminary injunction, docketed as G. R. No. L-8895, and on the same day filed a notice to appeal from the order of the lower court dated February 2, 1955, which appeal was docketed in this Court as G. R. No. L-9191. In the petition for prohibition and certiorari, petitioners (respondents therein) contended among other things, that the order of the respondent Judge requiring petitioners Secretary of Agriculture and Natural Resources and the Director of Fisheries to post a bond in the sum of P30,000 on or before March 1, 1955, had been issued without jurisdiction or in excess thereof, or at the very least with grave abuse of discretion, because by requiring the bond, the Republic of the Philippines was in effect made a party defendant and therefore transformed the suit into one against the Government which is beyond the jurisdiction of the respondent Judge to entertain; that the failure to give the Solicitor General the opportunity to defend the validity of the challenged executive orders resulted in the receipt of objectionable matters at the hearing; that Rule 66 of the Rules of Court does not empower a court of law to pass upon the validity of an executive order in a declaratory relief proceeding; that the respondent Judge did not have the power to grant the injunction as Section 4 of Rule 39 does not apply to declaratory relief proceedings but only to injunction, receivership and patent accounting proceedings; and prayed that a writ of preliminary injunction be issued to enjoin the respondent Judge from enforcing its order of March 3, 1955, and for such other relief as may be deem just and equitable in the premises. This petition was given due course and the hearing on the merits was set by this Court for April 12, 1955, but no writ of preliminary injunction was issued. Meanwhile, the appeal (G. R. No. L-9191) was heard on October 3, 1956, wherein respondentsappellants ascribed to the lower court the commission of the following errors:
1.In ruling that the President has no authority to issue Executive Orders Nos. 22, 66 and 80 banning the operation of trawls in San Miguel Bay; 2.In holding that the power to declare a closed area for fishing purposes has not been delegated to the President of the Philippines under the Fisheries Act; 3.In not considering Executive Orders Nos. 22, 66 and 80 as declaring a closed season pursuant to Section 7, Act 4003, as amended, otherwise known as the Fisheries Act; 4.In holding that to uphold the validity of Executive Orders Nos. 22 and 80 would be to sanction the exercise of legislative power by executive decrees; 5.In its suggestion that the only remedy for respondents and the people of the coastal towns of Camarines Sur and Camarines Norte is to go to the Legislature; and 6.In declaring Executive Orders Nos. 22, 66 and 80 invalid and in ordering the injunction prayed for to issue.

As Our decision in the prohibition and certiorari case (G. R. No. L-8895) would depend, in the last analysis, on Our ruling in the appeal of the respondents in case G. R. No. L-9191, We shall first proceed to dispose of the latter case. It is indisputable that the President issued Executive Orders Nos. 22, 66 and 80 in response to the clamor of the inhabitants of the municipalities along the coastline of San Miguel Bay. They read as follows:
EXECUTIVE ORDER NO. 22

"PROHIBITING THE USE OF TRAWLS IN SAN MIGUEL BAY" "In order to effectively protect the municipal fisheries of San Miguel Bay, Camarines Norte and Camarines Sur, and to conserve fish and other aquatic resources of the area, I, RAMON MAGSAYSAY, President of the Philippines, by virtue of the powers vested in me by law, do hereby order that: "1.Fishing by means of trawls (utase, otter and/or perenzella) of any kind, in the waters comprised within San Miguel Bay, is hereby prohibited. "2.Trawl shall mean, for the purpose of this Order, a fishing net made in the form of a bag with the mouth kept open by a device, the whole affair being towed, dragged, trailed or trawled on the bottom of the sea to capture demersal, ground or bottom species. "3.Violation of the provisions of this Order shall subject the offender to the penalty provided under Section 83 of Act 4993, or a fine of not more than two hundred pesos, or imprisonment for not more than six months, or both, in the discretion of the Court. "Done in the City of Manila, this 5th day of April, nineteen hundred and fifty-four and of the Independence of the Philippines, the eighth." (50 Off. Gaz. 1421). "EXECUTIVE ORDER NO. 66 "AMENDING EXECUTIVE ORDER NO. 22, DATED APRIL 5, 1954, ENTITLED 'PROHIBITING THE USE OF TRAWLS IN SAN MIGUEL BAY' "By virtue of the powers vested in me by law, I, RAMON MAGSAYSAY, President of the Philippines, do hereby amend Executive Order No. 22, dated April 5, 1954, so as to allow fishing by means of trawls, as defined in said Executive Order, within that portion of San Miguel Bay north of a straight line drawn from Tacubtacuban Hill in the Municipality of Tinambac, Province of Camarines Sur. Fishing by means of trawls south of said line shall still be absolutely prohibited. "Done in the City of Manila, this 23rd day of September, in the year of our Lord, nineteen hundred and fifty-four, and of the Independence of the Philippines, the ninth." (50 Off. Gaz. 4037). "EXECUTIVE ORDER NO. 80 "FURTHER AMENDING EXECUTIVE ORDER NO. 22, DATED APRIL 5, 1954, AS AMENDED BY EXECUTIVE ORDER NO. 66, DATED SEPTEMBER 23, 1954 "By virtue of the powers vested in me by law, I, RAMON MAGSAYSAY, President of the Philippines, do hereby amend Executive Order No. 66, dated September 23, 1954, so as to allow fishing by means of trawls, as defined in Executive Order No. 22, dated April 5, 1954, within that portion of San Miguel Bay north of a straight line drawn from Tacubtacuban Hill in the Municipality of Mercedes, Province of Camarines Norte to Balocbaloc Point in the Municipality of Tinambac, Province of Camarines Sur, until December 31, 1954, only. Thereafter, the provisions of said Executive Order No. 22 absolutely prohibiting fishing by means of trawls in all the waters comprised within the San Miguel Bay shall be revived and given full force and effect as originally provided therein. "Done in the City of Manila, this 2nd day of November, in the year of Our Lord, nineteen hundred and fifty-four and of the Independence of the Philippines, the ninth." (50 Off. Gaz. 5198)

It is likewise admitted that petitioners assailed the validity of said executive orders in their petition for a writ of injunction and/or declaratory relief filed with the Court of First Instance of Manila, and that the lower court, upon declaring Executive Orders Nos. 22, 66 and 80 invalid, issued an order requiring the Secretary of Agriculture and Natural Resources and the Director of Fisheries to post a bond for P30,000 if the writ of injunction restraining them from enforcing the executive orders in question must be stayed. The Solicitor General avers that the constitutionality of an executive order cannot be ventilated in a declaratory relief proceeding. We find this untenable, for this Court taking cognizance of an appeal from 8

the decision of the lower court in the case of Hilado vs. De la Costa et al., 83 Phil., 471, which involves the constitutionality of another executive order presented in an action for declaratory relief, in effect accepted the propriety of such action. This question being eliminated, the main issues left for Our determination with respect to defendants' appeal (G. R. No. L-9191), are: (1)Whether the Secretary of an Executive Department and the Director of a Bureau, acting in their capacities as such Government officials, could lawfully be required to post a bond in an action against them; (2)Whether the President of the Philippines has authority to issue Executive Orders Nos. 22, 66 and 80, banning the operation of trawls in San Miguel Bay, or, said in other words, whether said Executive Orders Nos. 22, 66 and 80 were issued in accordance with law; and (3)Whether Executive Orders Nos. 22, 66 and 80 were valid, for the issuance thereof was not in the exercise of legislative powers unduly delegated to the President. Counsel for both parties presented commendable exhaustive defenses in support of their respective stands. Certainly, these cases deserve such efforts, not only because the constitutionality of an act of a coordinate branch in our tripartite system of Government is in issue, but also because of the number of inhabitants, admittedly classified as "subsistence fishermen", that may be affected by any ruling that We may promulgate herein. I.As to the first proposition, it is an elementary rule of procedure that an appeal stays the execution of a judgment. An exception is offered by section 4 of Rule 39 of the Rules of Court, which provides that:
"SEC. 4.INJUNCTION, RECEIVERSHIP AND PATENT ACCOUNTING, NOT STAYED. Unless otherwise ordered by the court, a judgment in an action for injunction or in a receivership action, or a judgment or order directing an accounting in an action for infringement of letter patent, shall not be stayed after its rendition and before an appeal is taken or during the pendency of an appeal. The trial court, however, in its discretion, when an appeal is taken from a judgment granting, dissolving or denying an injunction, may make an order suspending, modifying, restoring, or granting such injunction during the pendency of an appeal, upon such terms as to bond or otherwise as it may consider proper for the security of the rights of the adverse party."

This provision was the basis of the order of the lower court dated February 19, 1955, requiring the filing by the respondents of a bond for P30,000 as a condition for the non-issuance of the injunction prayed for by plaintiffs therein, and which the Solicitor General charged to have been issued in excess of jurisdiction. The State's counsel, however, alleges that while judgment could be stayed in injunction, receivership and patent accounting cases and although the complaint was styled "Injunction and/or Declaratory Relief with Preliminary Injunction", the case is necessarily one for declaratory relief, there being no allegation sufficient to convince the Court that the plaintiffs intended it to be one for injunction. But aside from the title of the complaint, We find that plaintiffs pray for the declaration of the nullity of Executive Order Nos. 22, 66 and 80; the issuance of a writ of preliminary injunction, and for such other relief as may be deemed just and equitable. This Court has already held that there are only two requisites to be satisfied if an injunction is to issue, namely, the existence of the right sought to be protected, and that the acts against which the injunction is to be directed are violative of said right (North Negros Sugar Co., Inc. vs. Serafin Hidalgo, 63 Phil., 664). There is no question that at least 11 of the complaining trawl operators were duly licensed to operate in any of the national waters of the Philippines, and it is undeniable that the executive enactments sought to be annulled are detrimental to their interests. And considering further that the granting or refusal of an injunction, whether temporary or permanent, rests in the sound discretion of the Court, taking into account the circumstances and the facts of the particular case (Rodulfa vs. Alfonso, 76 Phil., 225, 42 Off. Gaz., 2439), We find no abuse of discretion when the trial Court treated the complaint as one for injunction and declaratory relief and executed the judgment pursuant to the provisions of section 4 of Rule 39 of the Rules of Court. 9

On the other hand, it shall be remembered that the party defendants in Civil Case No. 24867 of the Court of First Instance of Manila are Salvador Araneta, as Secretary of Agriculture and Natural Resources, and Deogracias Villadolid, as Director of Fisheries, and were sued in such capacities because they were the officers charged with duty of carrying out the statutes, orders and regulations on fishing and fisheries. In its order of February 19, 1955, the trial court denied defendants' motion to set aside judgment and they were required to file a bond for P30,000 to answer for damages that plaintiffs were allegedly suffering at the time, as otherwise the injunction prayed for by the latter would be issued. Because of these facts, We agree with the Solicitor General when he says that the action, being one against herein petitioners as such Government officials, is essentially one against the Government, and to require these officials to file a bond would be indirectly a requirement against the Government, for as regards bonds or damages that may be proved, if any, the real party in interest would be the Republic of the Philippines (L. S. Moon and Co. vs. Harrison, 43 Phil., 39; Salgado vs. Ramos, 64 Phil., 724-727, and others). The reason for this pronouncement is understandable; the State undoubtedly is always solvent (Tolentino vs.Carlos, 66 Phil., 140; Government of the P. I. vs. Judge of the Court of First Instance of Iloilo, 34 Phil., 157, cited in Joaquin Gutierrez et al. vs. Camus et al. * G. R. No. L-6725, promulgated October 30, 1954). However, as the records show that herein petitioners failed to put up the bond required by the lower court, allegedly due to difficulties encountered with the Auditor General's Office (giving the impression that they were willing to put up said bond but failed to do so for reasons beyond their control), and that the orders subjects of the prohibition and certiorari proceedings in G. R. No. L-8895, were enforced, if at all, 1 in accordance with section 4 of Rule 39, which We hold to be applicable to the case at bar, the issue as to the regularity or adequacy of requiring herein petitioners to post a bond, becomes moot and academic. II.Passing upon the question involved in the second proposition, the trial judge extending the controversy to the determination of which between the Legislative and Executive Departments of the Government had "the power to close any definite area of the Philippine waters" instead of limiting the same to the real issue raised by the enactment of Executive Orders Nos. 22, 66 and 80, specially the first and the last "absolutely prohibiting fishing by means of trawls in all the waters comprised within the San Miguel Bay", ruled in favor of Congress, and as the closing of any definite area of the Philippine waters is, according to His Honor, primarily within the fields of legislation and Congress had not intended to abdicate its power to legislate on the matter, he maintained, as stated before, that "until the trawler is outlawed by legislative enactment, it cannot be banned from San Miguel Bay by executive proclamation", and that "the remedy for respondents and population of the coastal towns of Camarines Sur is to go to the Legislature," and thus declared said Executive Orders Nos. 22, 66 and 80 invalid". The Solicitor General, on the contrary, asserts that the President is empowered by law to issue the executive enactments in question. Sections 6, 13 and 75 of Act No. 4003, known as the Fisheries Law, the latter two sections as amended by section 1 of Commonwealth Act No. 471, read as follows:
"SEC. 6.WORDS AND PHRASES DEFINED. Words and terms used in this Act shall be construed as follows: xxx xxx xxx TAKE or TAKING, includes pursuing, shooting, killing, capturing, trapping, snaring, and netting fish and other aquatic animals, and all lesser acts, such as disturbing, wounding, stupefying, or placing, setting, drawing, or using any net or other device commonly used to take or collect fish and other aquatic animals, whether they result in taking or not, and includes every attempt to take and every act of assistance to every other person in taking or attempting to take or collect fish and other aquatic animals: PROVIDED, That whenever taking is allowed by law, reference is had to taking by lawful means and in lawful manner. xxx xxx xxx

10

"SEC. 13.PROTECTION OF FRY OR FISH EGGS. Except for scientific or educational purpose or for propagation, it shall be unlawful to take or catch fry or fish eggs and the small fish, not more than three (3) centimeters long, known as siliniasi, in the territorial waters of the Philippines. Towards

this end, the Secretary of Agriculture and Commerce shall be authorized to provide by regulations such restrictions as may be deemed necessary to be imposed on THE USE OF ANY FISHING NET OR FISHING DEVICE FOR THE PROTECTION OF FRY OR FISH EGGS; Provided, however, That the
Secretary of Agriculture and Commerce shall permit the taking of young of certain species of fish known as hipon under such restrictions as may be deemed necessary.

"SEC. 75.FISH REFUGES AND SANCTUARIES. Upon the recommendation of the officer or chief of the bureau, office or service concerned, the Secretary of Agriculture and Commerce may set aside and establish fishery reservation or fish refuges and sanctuaries to be administered in the manner to be prescribed by him. All streams, ponds, and waters within the game refuge, birds sanctuaries, national parks, botanical gardens, communal forests and communal pastures are hereby declared fishing refuges and sanctuaries. It shall be unlawful for any person, to take, destroy or kill in any of the

places aforementioned, or in any manner disturb or drive away or take therefrom, any fish fry or fish eggs."

Act No. 4003 further provides as follows:

"SEC. 83.OTHER VIOLATIONS. Any other violation of the provisions of this Act or any rules and regulations promulgated thereunder shall subject the offender to a fine of not more than two hundred pesos, or imprisonment for not more than six months, or both, in the discretion of the Court."

As may be seen from the just quoted provisions, the law declares unlawful and fixes the penalty for the taking (except for scientific or educational purposes or for propagation), destroying or killing of any fish fry or fish eggs, and the Secretary of Agriculture and Commerce (now the Secretary of Agriculture and Natural Resources) is authorized to promulgate regulations restricting the use of any fish net or fishing device (which includes the net used by trawl fishermen) for the protection of fry or fish eggs, as well as to set aside and establish fishery reservations or fish refuges and sanctuaries to be administered in the manner prescribed by him, from which no person could lawfully take, destroy or kill in any of the places aforementioned, or in any manner disturb or drive away or take therefrom any small or immature fish, fry or fish eggs. It is true that said section 75 mentions certain streams, ponds and waters within the game refuges, . . . communal forests, etc., which the law itself declares fish refuges and sanctuaries, but this enumeration of places does not curtail the general and unlimited power of the Secretary of Agriculture and Natural Resources in the first part of section 75, to set aside and establish fishery reservations or fish refuges and sanctuaries, which naturally include seas or bays, like the San Miguel Bay in Camarines. From the resolution passed at the Conference of Municipal Mayors held at Tinambac, Camarines Sur, on December 18, 1953 (Exh. F), the following manifestation is made:
"WHEREAS, the continuous operation of said trawls even during the close season as specified in said Executive Order No. 20 caused the wanton destruction of the mother shrimps laying their eggs and the millions of eggs laid and the inevitable extermination of the shrimps specie; in order to save the shrimps specie from eventual extermination and in order to conserve the shrimps specie for posterity;"

In the brief submitted by the NAMFREL and addressed to the President of the Philippines (Exh. 2), in support of the petition of San Miguel Bay fishermen (allegedly 6,175 in number), praying that trawlers be banned from operating in San Miguel Bay, it is also stated that:
"The trawls ram and destroy the fish corrals. The heavy trawl nets dig deep into the ocean bed. They destroy the fish food which lies below the ocean floor. Their daytime catches net millions of shrimps scooped up from the mud. In their nets they bring up the life of the sea: algea, shell fish and star fish . . . "The absence of some species or the apparent decline in the catch of some fishermen operating in the bay may be due to several factors, namely: the indiscriminate catching of fry and

11

immature sizes of fishes, the wide spread use of explosives inside as well as at the mouth and approaches of the bay, and the extensive operation of the trawls." (p. 9, Report of Santos B. Rasalan,
Exh. A).

Extensive Operation of Trawls: The strenuous effect of the operations of the 17 TRAWLS of the demersal fisheries of San Miguel Bay is better appreciated when we consider the fact that out of its

about 850 square kilometers area, only about 350 square kilometers of 5 fathoms up could be trawled. With their continuous operation, coupled with those of the numerous fishing methods, the fisheries is greatly strained. This is shown by the fact that in view of the non- observance of the close season from May to October, each year, majority of their catch are immature. If their operation would continue unrestricted, the supply would be greatly depleted." (p. 11, Report of Santos B. Rasalan, Exh. A). San Miguel Bay can sustain 3 to 4 small trawlers (Otter Trawl Explorations in Philippine Waters, Research Report 25 of the Fish and Wildlife Service, United States Department of the Interior, p. 9, Exhibit B).

According to Annex A of the complaint filed in the lower court in Civil Case No. 24867 G. R. No. L 9191 (Exh. D, p. 53 of the folder of Exhibits), the 18 plaintiffs-appellees operate 29 trawling boats, and their operation must be in a big scale considering the investments plaintiffs have made therefor, amounting to P387,000 (Record on Appeal, p. 16-17). In virtue of the aforementioned provisions of law and the manifestations just copied, We are of the opinion that with or without said Executive Orders, the restriction and banning of trawl fishing from all Philippine waters come, under the law, within the powers of the Secretary of Agriculture and Natural Resources, who in compliance with his duties may even cause the criminal prosecution of those who in violation of his instructions, regulations or orders are caught fishing with trawls in Philippine waters. Now, if under the law the Secretary of Agriculture and Natural Resources has authority to regulate or ban the fishing by trawl which, it is claimed, is obnoxious for it carries away fish eggs and frys which should be preserved, can the President of the Philippines exercise that same power and authority? Section 10(1), Article VII of the Constitution of the Philippines prescribes:
"SEC. 10(1).The President shall have control of all the executive departments, bureaus or offices, exercises general supervision over all local governments as may be provided by law, and take care that the laws be faithfully executed."

Section 63 of the Revised Administrative Code reads as follows:

"SEC. 63.EXECUTIVE ORDERS AND EXECUTIVE PROCLAMATION. Administrative acts and commands of the President of the Philippines touching the organization or mode of operation of the Government or rearranging or readjusting any of the districts, divisions, parts or ports of the Philippines, and all acts and commands governing the general performance of duties by public employees or disposing of issues of general concern shall be made in executive orders." xxx xxx xxx

that:

Regarding department organization Section 74 of the Revised Administrative Code also provides
"All executive functions of the Government of the Republic of the Philippines shall be directly under the Executive Department subject to the supervision and control of the President of the

Philippines in matters of general policy. The Departments are established for the proper distribution of the work of the Executive, for the performance of the functions expressly assigned to them by law, and in order that each branch of the administration may have a chief responsible for its direction and policy. Each Department Secretary shall assume the burden of, and responsibility for, all activities of the Government under his control and supervision. For administrative purposes the President of the Philippines shall be considered the Department Head of the Executive Office.". . . .

One of the executive departments is that of Agriculture and Natural Resources which by law is placed under the direction and control of the Secretary, who exercises its functions subject to the general 12

supervision and control of the President of the Philippines (Sec. 75, R. A. C.). Moreover, "executive orders, regulations, decrees and proclamations relative to matters under the supervision or jurisdiction of a Department, the promulgation whereof is expressly assigned by law to the President of the Philippines, shall as a general rule, be issued upon proposition and recommendation of the respective Department" (Sec. 79-A, R.A.C.), and there can be no doubt that the promulgation of the questioned Executive Orders was upon the proposition and recommendation of the Secretary of Agriculture and Natural Resources and that is why said Secretary, who was and is called upon to enforce said executive Orders, was made a party defendant in one of the cases at bar (G. R. No. L-9191). For the foregoing reasons We do not hesitate to declare that Executive Orders Nos. 22, 66 and 80, series of 1954, of the President, are valid and issued by authority of law. III.But does the exercise of such authority by the President constitute an undue delegation of the powers of Congress? As already held by this Court, the true distinction between delegation of the power to legislate and the conferring of authority or discretion as to the execution of the law consists in that the former necessarily involves a discretion as to what the law shall be, while in the latter the authority or discretion as to its execution has to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made (Cruz vs. Youngberg, 56 Phil., 234, 239. See also Rubi, et al. vs. The Provincial Board of Mindoro, 39 Phil., 660). In the case of U. S. vs. Ang Tang Ho., 43 Phil. 1, We also held:
"THE POWER TO DELEGATE. The Legislature cannot delegate legislative power to enact any law. If Act No. 2868 is a law unto itself, and within itself, and it does nothing more than to authorize the Governor-General to make rules and regulations to carry it into effect, then the Legislature created the law. There is no delegation of power and it is valid. On the other hand, if the act within itself does not define a crime and is not complete, and some legislative act remains to be done to make it a law or a crime, the doing of which is vested in the Governor-General, the act is a delegation of legislative power, is unconstitutional and void."

From the provisions of Act No. 4003 of the Legislature, as amended by Commonwealth Act No. 471, which have been aforequoted, We find that Congress (a) declared it unlawful "to take or catch fry or fish eggs in the territorial waters of the Philippines; (b) towards this end, it authorized the Secretary of Agriculture and Natural Resources to provide by the regulations such restrictions as may be deemed necessary to be imposed on the use of any fishing net or fishing device for the protection of fish fry or fish eggs (Sec. 13); (c) it authorized the Secretary of, Agriculture and Natural Resources to set aside and establish fishery reservations or fish refuges and sanctuaries to be administered in the manner to be prescribed by him and declared it unlawful for any person to take, destroy or kill in any of said places, or in any manner disturb or drive away or take therefrom, any fish fry or fish eggs (Sec. 75); and (d) it penalizes the execution of such acts declared unlawful and in violation of this Act (No. 4003) or of any rules and regulations promulgated thereunder, making the offender subject to a fine of not more than P200, or imprisonment for not more than 6 months, or both, in the discretion of the court (Sec. 83). From the foregoing it may be seen that in so far as the protection of fish fry or fish egg is concerned, the Fisheries Act is complete in itself, leaving to the Secretary of Agriculture and Natural Resources the promulgation of rules and regulations to carry into effect the legislative intent. It also appears from the exhibits on record in these cases that fishing with trawls causes "a wanton destruction of the mother shrimps laying their eggs and the millions of eggs laid and the inevitable extermination of the shrimps specie" (Exh. F), and that "the trawls ram and destroy the fish corrals. The heavy trawl nets dig deep into the ocean bed. They destroy the fish food which lies below the ocean floor. Their daytime catches net millions of shrimps scooped up from the mud. In their nets they bring up the life of the sea" (Exh. 2). 13

In the light of these facts it is clear to Our mind that for the protection of fry or fish eggs and small and immature fishes, Congress intended with the promulgation of Act No. 4003, to prohibit the use of any fish net or fishing device like trawl nets that could endanger and deplete our supply of sea food, and to that end authorized the Secretary of Agriculture and Natural Resources to provide by regulations such restrictions as he deemed necessary in order to preserve the aquatic resources of the land. Consequently, when the President, in response to the clamor of the people and authorities of Camarines Sur issued Executive Order No. 80 absolutely prohibiting fishing by means of trawls in all waters comprised within the San Miguel Bay, he did nothing but show an anxious regard for the welfare of the inhabitants of said coastal province and dispose of issues of general concern (Sec. 63, R.A.C.) which were in consonance and strict conformity with the law. Wherefore, and on the strength of the foregoing considerations We render judgment, as follows: (a)Declaring that the issues involved in case G. R. No. L-8895 have become moot, as no writ of preliminary injunction has been issued by this Court enjoining the respondent Judge of the Court of First Instance of Manila, Branch XIV, from enforcing his order of March 3, 1955; and (b)Reversing the decision appealed from in case G. R. No. L- 9191; dissolving the writ of injunction prayed for in the lower court by plaintiffs, if any has been actually issued by the court a quo; and declaring Executive Orders Nos. 22, 66 and 80, series of 1954, valid for having been issued by authority of the Constitution, the Revised Administrative Code and the Fisheries Act. Without pronouncement as to costs. It is so ordered.

Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L. and Endencia, JJ., concur.

[G.R. No. L-32166. October 18, 1977.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. HON. MAXIMO A. MACEREN, CFI, Sta. Cruz, Laguna, JOSE BUENAVENTURA, GODOFREDO REYES, BENJAMIN REYES, NAZARIO AQUINO and CARLITO DEL ROSARIO, accusedappellees.

Office of the Solicitor General for appellant. Rustico F . de los Reyes, Jr. for appellees.

DECISION

AQUINO, J :
p

This is a case involving the validity of a 1967 regulation, penalizing electro fishing in fresh water fisheries, promulgated by the Secretary of Agriculture and Natural Resources and the Commissioner of Fisheries under the old Fisheries Law and the law creating the Fisheries Commission.
cdtai

On March 7, 1969 Jose Buenaventura, Godofredo Reyes, Benjamin Reyes, Nazario Aquino and Carlito del Rosario were charged by a Constabulary investigator in the municipal court of Sta. Cruz, Laguna with having violated Fisheries Administrative Order No. 84-1. 14

It was alleged in the complaint that the five accused in the morning of March 1, 1969 resorted to electro fishing in the waters of Barrio San Pablo Norte, Sta. Cruz by "using their own motor banca, equipped with motor; with a generator colored green with attached dynamo colored gray or somewhat white; and electrocuting device locally known as 'senso' with a somewhat webbed copper wire on the tip or other end of a bamboo pole with electric wire attachment which was attached to the dynamo direct and with the use of these devices or equipments catches fish thru electric current, which destroy any aquatic animals within its currect reach, to the detriment and prejudice of the populace" (Criminal Case No. 5429). Upon motion of the accused, the municipal court quashed the complaint. The prosecution appealed. The Court of First Instance of Laguna affirmed the order of dismissal (Civil Case No. SC-36). The case is now before this Court on appeal by the prosecution under Republic Act No. 5440. The lower court held that electro fishing cannot be penalized because electric current is not an obnoxious or poisonous substance as contemplated in section 11 of the Fisheries Law and that it is not a substance at all but a form of energy conducted or transmitted by substances. The lower court further held that, since the law does not clearly prohibit electro fishing, the executive and judicial departments cannot consider it unlawful. As legal background, it should be stated that section 11 of the Fisheries Law prohibits "the use of any obnoxious or poisonous substance" in fishing. Section 76 of the same law punishes any person who uses an obnoxious or poisonous substance in fishing with a fine of not less than five hundred pesos nor more than five thousand, and by imprisonment for not less than six months nor more than five years. It is noteworthy that the Fisheries Law does not expressly punish "electro fishing." Notwithstanding the silence of the law, the Secretary of Agriculture and Natural Resources, upon the recommendation of the Commissioner of Fisheries, promulgated Fisheries Administrative Order No. 84 (62 O.G. 1224), prohibiting electro fishing in all Philippine waters. The order is quoted below:
"SUBJECT. PROHIBITING ELECTRO FISHING IN ALL WATERS OF THE PHILIPPINES. "Pursuant to Section 4 of Act No. 4003, as amended, and Section 4(h) of R.A. No. 3512, the following rules and regulations regarding the prohibition of electro fishing in all waters of the Philippines are hereby promulgated for the information and guidance of all concerned. "SECTION 1.Definition. Words and terms used in this Order shall be construed as follows: "(a)'Philippine waters or territorial waters of the Philippines' includes all waters of the Philippine Archipelago, as defined in the treaties between the United States and Spain, dated respectively the tenth of December, eighteen hundred ninety eight and the seventh of November, nineteen hundred. For the purpose of this order, rivers, lakes and other bodies of fresh waters are included. "(b)Electro fishing. Electro Fishing is the catching of fish with the use of electric current. The equipment used are of many electrical devices which may be battery or generator-operated and from any available source of electric current. "(c)'Persons' includes firm, corporation, association, agent or employee. "(d)'Fish' includes other aquatic products. "SEC. 2.Prohibition. It shall be unlawful for any person to engage in electro fishing or to catch fish by the use of electric current in any portion of the Philippine waters except for research, educational and

15

scientific purposes which must be covered by a permit issued by the Secretary of Agriculture and Natural Resources which shall be carried at all times. "SEC. 3.Penalty. Any violation of the provisions of this Administrative Order shall subject the offender to a fine of not exceeding five hundred pesos (P500.00) or imprisonment of not exceeding six (6) months or both at the discretion of the Court. "SEC. 4.Repealing Provisions. All administrative orders or parts thereof inconsistent with the provisions of this Administrative Order are hereby revoked. "SEC. 5.Effectivity. This Administrative Order shall take effect sixty (60) days after its publication in the Official Gazette."

On June 28, 1967 the Secretary of Agriculture and Natural Resources, upon the recommendation of the Fisheries Commission, issued Fisheries Administrative Order No. 84-1, amending section 2 of Administrative Order No. 84, by restricting the ban against electro fishing to fresh water fisheries (63 O.G. 9963). Thus, the phrase "in any portion of the Philippine waters", found in Section 2, was changed by the amendatory order to read as follows: "in fresh water fisheries in the Philippines, such as rivers, lakes, swamps, dams, irrigation canals and other bodies of fresh water." The Court of First Instance and the prosecution (p. 11 of brief) assumed that electro fishing is punishable under Section 83 of the Fisheries Law (not under Section 76 thereof), which provides that any other violation of that law "or of any rules and regulations promulgated thereunder shall subject the offender to a fine of not more than two hundred pesos (P200), or imprisonment for not more than six months, or both, in the discretion of the court." That assumption is incorrect because Section 3 of the aforequoted Administrative Order No. 84 imposes a fine of not exceeding P500 on a person engaged in electro fishing, which amount exceeds the maximum fine of P200 fixed in Section 83. It seems that the Department Secretary and the Commissioner of Fisheries prescribed their own penalty for electro fishing, which penalty is less than the severe penalty imposed in Section 76 and which is not identical to the light penalty imposed in Section 83. Had Administrative Order No. 84 adopted the lighter penalty prescribed in Section 83, then the crime of electro fishing would be within the exclusive original jurisdiction of the inferior court (Sec. 44[f], Judiciary Law; People vs. Ragasi, L-28663, September 22, 1976, 73 SCRA 23). We have discussed this preliminary point, not raised in the briefs, because it is obvious that the crime of electro fishing, which is punishable with a fine up to P500, falls within the concurrent original jurisdiction of the inferior courts and the Court of First Instance (People vs. Nazareno, L-40037, April 30, 1976, 70 SCRA 531 and the cases cited therein). And since the instant case was filed in the municipal court of Sta. Cruz, Laguna, a provincial capital, the order of dismissal rendered by that municipal court was directly appealable to the Court, not to the Court of First Instance of Laguna (Sec. 45 and last par. of Section 87 of the Judiciary Law; Esperat vs. Avila, L-25992, June 30, 1967, 20 SCRA 596). It results that the Court of First Instance of Laguna had no appellate jurisdiction over the case. Its order affirming the municipal court's order of dismissal is void for lack of jurisdiction. This appeal shall be treated as a direct appeal from the municipal court to this Court. (See People vs. Del Rosario, 97 Phil. 67). 16

In this appeal, the prosecution argues that Administrative Orders Nos. 84 and 84-1 were not issued under section 11 of the Fisheries Law which, as indicated above, punishes fishing by means of an obnoxious or poisonous substance. This contention is not well-taken because, as already stated, the penal provision of Administrative Order No. 84 implies that electro fishing is penalized as a form of fishing by means of an obnoxious or poisonous substance under section 11. The prosecution cites as the legal sanctions for the prohibition against electro fishing in fresh water fisheries (1) the rule-making power of the Department Secretary under section 4 of the Fisheries Law; (2) the function of the Commissioner of Fisheries to enforce the provisions of the Fisheries Law and the regulations promulgated thereunder and to execute the rules and regulations consistent with the purpose for the creation of the Fisheries Commission and for the development of fisheries (Sec. 4[c] and [h], Republic Act No. 3512; (3) the declared national policy to encourage, promote and conserve our fishing resources (Sec. 1, Republic Act No. 3512), and (4) section 83 of the Fisheries Law which provides that "any other violation of" the Fisheries Law or of any rules and regulations promulgated thereunder "shall subject the offender to a fine of not more than two hundred pesos, or imprisonment for not more than six months, or both, in the discretion of the court." As already pointed out above, the prosecution's reference to section 83 is out of place because the penalty for electro fishing under Administrative Order No. 84 is not the same as the penalty fixed in Section 83.
cdasia

We are of the opinion that the Secretary of Agriculture and Natural Resources and the Commissioner of Fisheries exceeded their authority in issuing Fisheries Administrative Orders Nos. 84 and 84-1 and that those orders are not warranted under the Fisheries Commission, Republic Act No. 3512.

The reason is that the Fisheries Law does not expressly prohibit electro fishing. As electro fishing is not banned under that law, the Secretary of Agriculture and Natural Resources and the Commissioner of Fisheries are powerless to penalize it. In other words, Administrative Orders Nos. 84 and 84-1, in penalizing electro fishing, are devoid of any legal basis. Had the lawmaking body intended to punish electro fishing, a penal provision to that effect could have been easily embodied in the old Fisheries Law. That law punishes (1) the use of obnoxious or poisonous substance, or explosive in fishing; (2) unlawful fishing in deepsea fisheries; (3) unlawful taking of marine mollusca, (4) illegal taking of sponges; (5) failure of licensed fishermen to report the kind and quantity of fish caught, and (6) other violations. Nowhere in that law is electro fishing specifically punished. Administrative Order No. 84, in punishing electro fishing, does not contemplate that such an offense falls within the category of "other violations" because, as already shown, the penalty for electro fishing is the penalty next lower to the penalty for fishing with the use of obnoxious or poisonous substances, fixed in Section 76, and is not the same as the penalty for "other violations" of the law and regulations fixed in Section 83 of the Fisheries Law. The lawmaking body cannot delegate to an executive official the power to declare what acts should constitute a criminal offense. It can authorize the issuance of regulations and the imposition of the penalty provided for in the law itself. (People vs. Exconde, 101 Phil. 1125, citing 11 Am. Jur. 965 on p. 1132). Originally, Administrative Order No. 84 punished electro fishing in all waters. Later, the ban against electro fishing was confined to fresh water fisheries. The amendment created the impression that electro fishing is not 17

condemnable per se. It could be tolerated in marine waters. That circumstances strengthens the view that the old law does not eschew all forms of electro fishing. However, at present, there is no more doubt that electro fishing is punishable under the Fisheries Law and that it cannot be penalized merely by executive regulation because Presidential Decree No. 704, which is a revision and consolidation of all laws and decrees affecting fishing and fisheries and which was promulgated on May 16, 1975 (71 O.G. 4269), expressly punishes electro fishing in fresh water and salt water areas. That decree provides:
"SEC. 33.Illegal fishing, dealing in illegally caught fish or fishery/aquatic products . It shall be unlawful for any person to catch, take or gather or cause to be caught, taken or gathered fish or fishery/aquatic products in Philippine waters with the use of explosives, obnoxious or poisonous substance, or by the use of electricity as defined in paragraphs (1), (m) and (d), respectively, of Section 3 hereof: . . ."

The decree repealed Act No. 4003, as amended, Republic Acts Nos. 428, 3048, 3512 and 3586, Presidential Decrees Nos. 43, 534 and 553, and all Decrees, Acts, Executive Orders, rules and regulations or parts thereof inconsistent with it (Sec. 49, P. D. No. 704). The inclusion in that decree of provisions defining and penalizing electro fishing is a clear recognition of the deficiency or silence on that point of the old Fisheries Law. It is an admission that a mere executive regulation is not legally adequate to penalize electro fishing. Note that the definition of electro fishing, which is found in section 1(c) of Fisheries Administrative Order No. 84 and which is not provided for in the old Fisheries Law, is now found in section 3(d) of the decree. Note further that the decree penalizes electro fishing by "imprisonment from two (2) to four (4) years", a punishment which is more severe than the penalty of a fine of not exceeding P500 or imprisonment of not more than six months or both fixed in section 3 of Fisheries Administrative Order No. 84. An examination of the rule-making power of executive officials and administrative agencies and, in particular, of the Secretary of Agriculture and Natural Resources (now Secretary of Natural Resources) under the Fisheries Law sustains the view that he exceeded his authority in penalizing electro fishing by means of an administrative order. Administrative agencies are clothed with rule-making powers because the lawmaking body finds it impracticable, if not impossible, to anticipate and provide for the multifarious and complex situations that may be encountered in enforcing the law. All that is required is that the regulation should be germane to the objects and purposes of the law and that it should conform to the standards that the law prescribes (People vs. Exconde, 101 Phil. 1125; Director of Forestry vs. Muoz, L-24796, June 28, 1968, 23 SCRA 1183, 1198; Geukeko vs. Araneta, 102 Phil. 706, 712). The lawmaking body cannot possibly provide for all the details in the enforcement of a particular statute (U.S. vs. Tupasi Molina, 29 Phil. 119, 125, citing U.S. vs. Grimaud, 220 U.S. 506; Interprovincial Autobus Co., Inc. vs. Coll. of Internal Revenue, 98 Phil. 290, 295-6). The grant of the rule-making power to administrative agencies is a relaxation of the principle of separation of powers and is an exception to the nondelegation of legislative powers. Administrative regulations or "subordinate legislation" calculated to promote the public interest are necessary because of "the growing complexity of modern life, the multiplication of the subjects of governmental regulations, and the increased 18

difficulty of administering the law" (Calalang vs. Williams, 70 Phil. 726; People vs. Rosenthal and Osmea, 68 Phil. 328). Administrative regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law, and should be for the sole purpose of carrying into effect its general provisions. By such regulations, of course, the law itself cannot be extended. (U.S. vs. Tupasi Molina, supra). An administrative agency cannot amend an act of Congress (Santos vs. Estenzo, 109 Phil. 419, 422; Teoxon vs. Members of the Board of Administrators, L-25619, June 30, 1970, 33 SCRA 585; Manuel vs. General Auditing Office, L-28952, December 29, 1971, 42 SCRA 660; Deluao vs. Casteel, L-21906, August 29, 1969, 29 SCRA 350). The rule-making power must be confined to details for regulating the mode or proceeding to carry into effect the law as it has been enacted. The power cannot be extended to amending or expanding the statutory requirements or to embrace matters not covered by the statute. Rules that subvert the statute cannot be sanctioned. (University of Santo Tomas vs. Board of Tax Appeals, 93 Phil. 376, 382, citing 12 C.J. 845-46. As to invalid regulations, see Collector of Internal Revenue vs. Villaflor, 69 Phil. 319; Wise & Co. vs. Meer, 78 Phil. 655, 676; Del Mar vs. Phil. Veterans Administration, L-27299, June 27, 1973, 51 SCRA 340, 349). There is no question that the Secretary of Agriculture and Natural Resources has rule-making powers. Section 4 of the Fisheries Law provides that the Secretary "shall from time to time issue instructions, orders, and regulations consistent" with that law, "as may be necessary and proper to carry into effect the provisions thereof. That power is now vested in the Secretary of Natural Resources by section 7 of the Revised Fisheries Law, Presidential Decree No. 704. Section 4(h) of Republic Act No. 3512 empower the Commissioner of Fisheries "to prepare and execute upon the approval of the Secretary of Agriculture and Natural Resources, forms, instructions, rules and regulations consistent with the purpose" of that enactment "and for the development of fisheries." Section 79(B) of the Revised Administrative Code provides that "the Department Head shall have the power to promulgate, whenever he may see fit do so, all rules, regulations, orders, circulars, memorandums, and other instructions, not contrary to law, necessary to regulate the proper working and harmonious and efficient administration of each and all of the offices and dependencies of his Department, and for the strict enforcement and proper execution of the laws relative to matters under the jurisdiction of said Department; but none of said rules or orders shall prescribe penalties for the violation thereof, except as expressly authorized by law." Administrative regulations issued by a Department Head in conformity with law have the force of law (Valerio vs. Secretary of Agriculture and Natural Resources, 117 Phil. 729, 733; Antique Sawmills, Inc. vs. Zayco, L20051, May 30, 1966, 17 SCRA 316). As he exercises the rule-making power by delegation of the lawmaking body, it is a requisite that he should not transcend the bounds demarcated by the statute for the exercise of that power; otherwise, he would be improperly exercising legislative power in his own right and not as a surrogate of the lawmaking body. Article 7 of the Civil Code embodies the basic principle that "administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution." As noted by Justice Fernando, "except for constitutional officials who can trace their competence to act to the fundamental law itself, a public official must locate in the statute relied upon a grant of power before he can exercise it." "Department zeal may not be permitted to outrun the authority conferred by statute." (Radio Communications of the Philippines, Inc. vs. Santiago, L-29236, August 21, 1974, 58 SCRA 493, 496-8). 19

"Rules and regulations when promulgated in pursuance of the procedure or authority conferred upon the administrative agency by law, partake of the nature of a statute, and compliance therewith may be enforced by a penal sanction provided in the law. This is so because statutes are usually couched in general terms, after expressing the policy, purposes, objectives, remedies and sanctions intended by the legislature. The details and the manner of carrying out the law are oftentimes left to the administrative agency entrusted with its enforcement. In this sense, it has been said that rules and regulations are the product of a delegated power to create new or additional legal provisions that have the effect of law." The rule or regulation should be within the scope of the statutory authority granted by the legislature to the administrative agency. (Davis, Administrative Law, p. 194, 197, cited in Victorias Milling Co., Inc. vs. Social Security Commission, 114 Phil. 555, 558).

In case of discrepancy between the basic law and a rule or regulation issued to implement said law, the basic law prevails because said rule or regulation cannot go beyond the terms and provisions of the basic law (People vs. Lim, 108 Phil. 1091). This Court in its decision in the Lim case, supra, promulgated on July 26, 1960, called the attention of technical men in the executive departments, who draft rules and regulations, to the importance and necessity of closely following the legal provisions which they intend to implement so as to avoid any possible misunderstanding or confusion. The rule is that the violation of a regulation prescribed by an executive officer of the government in conformity with and based upon a statute authorizing such regulation constitutes an offense and renders the offender liable to punishment in accordance with the provisions of the law (U.S. vs. Tupasi Molina, 29 Phil. 119, 124). In other words, a violation or infringement of a rule or regulation validly issued can constitute a crime punishable as provided in the authorizing statute and by virtue of the latter (People vs. Exconde, 101 Phil. 1125, 1132). It has been held that "to declare what shall constitute a crime and how it shall be punished is a power vested exclusively in the legislature, and it may not be delegated to any other body or agency" (1 Am. Jur. 2nd, sec. 127, p. 938; Texas Co. vs. Montgomery, 73 F. Supp. 527). In the instant case the regulation penalizing electro fishing is not strictly in accordance with the Fisheries Law, under which the regulation was issued, because the law itself does not expressly punish electro fishing. The instant case is similar to People vs. Santos, 63 Phil. 300. The Santos case involves Section 28 of Fish and Game Administrative Order No. 2 issued by the Secretary of Agriculture and Natural Resources pursuant to the aforementioned Section 4 of the Fisheries Law. Section 28 contains the proviso that a fishing boat not licensed under the Fisheries Law and under the said administrative order may fish within three kilometers of the shoreline of islands and reservations over which jurisdiction is exercised by naval and military reservations authorities of the United States only upon receiving written permission therefor, which permission may be granted by the Secretary upon recommendation of the military or naval authorities concerned. A violation of the proviso may be proceeded against under Section 45 of the Federal Penal Code.

20

Augusto A. Santos was prosecuted under that provision in the Court of First Instance of Cavite for having caused his two fishing boats to fish, loiter and anchor without permission from the Secretary within three kilometers from the shoreline of Corrigidor Island. This Court held that the Fisheries Law does not prohibit boats not subject to license from fishing within three kilometers of the shoreline of islands and reservations over which jurisdiction is exercised by naval and military authorities of the United States, without permission from the Secretary of Agriculture and Natural Resources upon recommendation of the military and naval authorities concerned. As the said law does not penalize the act mentioned in section 28 of the administrative order, the promulgation of that provision by the Secretary "is equivalent to legislating on the matter, a power which has not been and cannot be delegated to him, it being expressly reserved" to the lawmaking body. "Such an act constitutes not only an excess of the regulatory power conferred upon the Secretary but also an exercise of a legislative power which he does not have, and therefore" the said provision "is null and void and without effect". Hence, the charge against Santos was dismissed. A penal statute is strictly construed. While an administrative agency has the right to make rules and regulations to carry into effect a law already enacted, that power should not be confused with the power to enact a criminal statute. An administrative agency can have only the administrative or policing powers expressly or by necessary implication conferred upon it. (Glustrom vs. State, 206 Ga. 734, 58 SE 2d 534; See 2 Am. Jr. 2nd 129-130). Where the legislature has delegated to executive or administrative officers and boards authority to promulgate rules to carry out an express legislative purpose, the rules of administrative officers and boards, which have the effect of extending, or which conflict with the authority-granting statute, do not represent a valid exercise of the rule-making power but constitute an attempt by an administrative body to legislate (State vs. Miles, 5 Wash. 2nd 322; 105 Pac. 2nd 51). In a prosecution for a violation of an administrative order, it must clearly appear that the order is one which falls within the scope of the authority conferred upon the administrative body, and the order will be scrutinized with special care. (State vs. Miles, supra). The Miles case involved a statute which authorized the State Game Commission "to adopt, promulgate, amend and/or repeal, and enforce reasonable rules and regulations governing and/or prohibiting the taking of the various classes of game." Under that statute, the Game Commission promulgated a rule that "it shall be unlawful to offer, pay or receive any reward, prize or compensation for the hunting, pursuing, taking, killing or displaying of any game animal, game bird or game fish or any part thereof." Beryl S. Miles, the owner of a sporting goods store, regularly offered a ten-dollar cash prize to the person displaying the largest deer in his store during the open season for hunting such game animals. For that act, he was charged with a violation of the rule promulgated by the State Game Commission. It was held that there was no statute penalizing the display of game. What the statute penalized was the taking of game. If the lawmaking body desired to prohibit the display of game, it could have readily said so. It was not lawful for the administrative board to extend or modify the statute. Hence, the indictment against Miles was quashed. The Miles case is similar to this case.
aisa dc

21

WHEREFORE, the lower court's decision of June 9, 1970 is set aside for lack of appellate jurisdiction and the order of dismissal rendered by the municipal court of Sta. Cruz, Laguna in Criminal Case No. 5429 is affirmed. Costs de oficio. SO ORDERED.

Barredo (Actg. Chairman), Concepcion Jr., Santos and Guerrero, JJ ., concur. Fernando and Antonio, JJ ., took no part. Guerrero, J ., was designated to sit in the Second Division.

[G.R. No. L-50908. January 31, 1984.] MARY CONCEPCION BAUTISTA and ENRIQUE D. BAUTISTA, petitioners, vs. ALFREDO L. JUINIO, ROMEO F. EDU and FIDEL V. RAMOS,respondents.

Mary Concepcion Bautista for and in his own behalf. The Solicitor General for respondents.
SYLLABUS 1.CONSTITUTIONAL LAW; STATUTES; LETTER OF INSTRUCTION NO. 869; OBJECTION THERETO MAY BE RAISED BY PETITIONERS WHO STAND TO BE DEPRIVED OF A VALID EXERCISE OF A PROPERTY RIGHT. It does not admit of doubt that the ban applies to petitioners who are "the registered owners of an eight cylinder 1969 Buick, and the vendees of a six cylinder Willy's kaiser jeep, which are both classified as heavy or H." To that extent, therefore, the enforcement of the assailed Letter of Instruction will amount to a deprivation of what otherwise would be a valid exercise of a property right. Thus they fall squarely within "the unchallenged rule" as to who may raise a constitutional question, namely, to quote the language of Justice Laurel in the leading case of People v. Vera, "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." Moreover, that rule has been considerably relaxed. The question then is neither abstract nor academic as contended by respondents. 2.ID.; ID.; ID.; A REGULATORY POLICE MEASURE PRESUMED CONSTITUTIONAL. For this Court to hold that a Letter of Instruction, a regulatory measure precisely enacted to cope with the serious and grave problem of energy conservation, is void on its face. Such a task is rendered unusually difficult by what has been referred to by Justice Laurel in the leading case of Angara v. Electoral Commission as the "presumption of constitutionality" and by the same jurist in the case of People v. Vera in slightly different words "a presumption that such an act falls within constitutional limitations." There is need then for a factual foundation of invalidity. In the language of Ermita-Malate Hotel & Motel Operations Association, Inc. v. City Mayor or Manila: "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.

22

3.ID.; ID.; ID.; AN APPROPRIATE RESPONSE TO THE PROBLEM OF ENERGY CONSERVATION NOT OFFENSIVE TO THE DUE PROCESS CLAUSE. There may be instances where a police power measure may, because of its arbitrary, oppressive or unjust character, be held offensive to the due process clause and, therefore, may, when challenged in an appropriate legal proceeding, be declared void on its face. This is not one of them. A recital of the whereas clauses of the Letter of Instruction makes it clear. What is undeniable is that the action taken is an appropriate response to a problem that presses urgently for solution. It may not be the only alternative, but its reasonableness is immediately apparent. Thus, to repeat, substantive due process, which is the epitome of reasonableness and fair play, is not ignored, much less infringed. 4.ID.; ID.; ID.; ID.; SETTLED LAW. In the interplay between such a fundamental right and police power, especially so where the assailed governmental action deals with the use of one's property, the latter is accorded much leeway. That is settled law. What is more, it is good law. Due process, therefore, cannot be validly invoked. As stressed in the cited Ermita-Malate Hotel decision: "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, extending as it does 'to all the great public needs.' 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 deprived of its competence to promote public health, public morals, public safety and the general welfare. Negatively put, police power is 'that inherent and plenary power in the State which enables it to prohibit all that is hurtful to the comfort, safety, and welfare of society.'" (127 Phil. 309, 316). 5.ID.; ID.; ID.; ID.; A REGULATORY MEASURE THAT SATISFIES APPLICABLE STANDARD. A governmental act may be offensive to the due process clause, but may run counter to the guarantee of equal protection. such is the case when there is no rational basis for the classification followed. That is the point raised by petitioners. for them, there is no rational justification for the ban being imposed on vehicles classified as heavy (H) and extra-heavy (EH), for precisely those owned by them fall within such category. Tested by the applicable standard that must be satisfied to avoid the charge of a denial of equal protection, the objection of petitioners is shown to be lacking in merit. Such a classification on its face cannot be characterized as an affront to reason. 6.ID.; ID.; ID.; ID.; THE EQUAL PROTECTION CLAUSE MAY BE INVOKED ONLY WHERE CLASSIFICATION FINDS NO SUPPORT IN REASON. 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. Those adversely affected may under such circumstances 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 circumstances 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 allowed. For the principle is that equal protection and security shall be given to every person under circumstances, which if not identical are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest. 7.ID.; ID.; ID.; CONSTITUTIONALITY THEREOF UPHELD. The question before the Court however is limited to whether or not Letter of Instruction 869 as implemented by Memorandum Circular No. 39 is violative of certain constitutional rights. It goes no further than that. The determination of the mode and manner through which the objective of minimizing the consumption of oil products may be attained is left to the discretion of the political branches. Absent therefore the alleged infringement of constitutional rights, more precisely the due process and equal protection guarantees, this Court cannot adjudge Letter of Instruction No. 869 as tainted by unconstitutionality.

23

8.ID.; ID.; ID.; MEMORANDUM CIRCULAR NO. 39, IMPOUNDING OF VEHICLES PROVIDED THEREUNDER ULTRA VIRES. Letter of Instruction 869 and Memorandum Circular No. 39 were adopted pursuant to the Land Transportation and Traffic Code. It contains a specific provision as to penalties. Thus: "For violation of any provisions of this Act or regulations promulgated pursuant hereto, not hereinbefore specifically punished, a fine of not less than ten nor more than fifty pesos shall be imposed." Memorandum Circular No. 39 cannot be held to be ultra vires as long as the fine imposed is not less than ten nor more than fifty pesos. As to suspension of registration, the Code, insofar as applicable, provides: "Whenever it shall appear from the records of the Commission that during any twelve-month period more than three warnings for violations of this Act have been given to the owner of a motor vehicle, or that the said owner has been convicted by a competent court more than once for violation of such laws, the Commissioner may, in his discretion, suspend the certificate of registration for a period not exceeding ninety days and, thereupon, shall require the immediate surrender of the number plate . . . ." It follows that while the imposition of a fine or the suspension of registration under the conditions therein set forth is valid under the Land Transportation and Traffic Code, the impounding of a vehicle finds no statutory justification. To apply that portion of Memorandum Circular No. 39 would be ultra vires. It must likewise be made clear that a penalty even if warranted can only be imposed in accordance with the procedure required by law. ABAD SANTOS, J., dissenting: 1.CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS AND EQUAL PROTECTION GUARANTEES OF CONSTITUTION; LETTER OF INSTRUCTION NO. 869 NOT VIOLATIVE THEREOF. The power of the State to restrict the use of certain motor vehicles during stated days and hours as a fuel-saving measure is to me indubitable. It is anchored on the police power of the State. For this reason LOI No. 869 cannot be assailed successfully as violative of due process and equal protection guarantees of the Constitution. 2.ID.; LEGISLATIVE DEPARTMENT; ONLY THE LEGISLATIVE CAN PRESCRIBE PENALTIES; INSTANCE WHEN EXECUTIVE OFFICIALS CAN PRESCRIBE PENALTIES. I refer to paragraph 4 of the circular which provides, inter alia, for penalties consisting of fine and suspension or cancellation of the certificate of registration for owners of motor vehicles violating the LOI. This portion of the circular is clearly illegal for the LOI is absolutely and completely devoid of legal sanctions and consequently the implementing circular cannot prescribe them. It is elementary that only the legislature (or the President in the exercise of his legislative power) can prescribe penalties. Executive officials whose task is to enforce the law can prescribe penalties only if they are authorized to do so within specified limits by the legislature.

DECISION

FERNANDO, J :
p

The validity of an energy conservation measure, Letter of Instruction No. 869, issued on May 31, 1979 the response to the protracted oil crisis that dates back to 1974 is put in issue in this prohibition proceeding filed by petitioners, spouses Mary Concepcion Bautista and Enrique D. Bautista, for being allegedly violative of the due process and equal protection guarantees 1 of the Constitution. The use of private motor vehicles with H and EH plates on week-ends and holidays was banned from "[12:00] a.m. Saturday morning to 5:00 a.m. Monday morning, or 1:00 a.m. of the holiday to 5:00 a.m. of the day after the holiday." 2 Motor vehicles of the following classifications are exempted: (a) S (Service); (b) T (Truck); (c) DPL (Diplomatic); (d) CC (Consular Corps); (e) TC (Tourist Cars)." 3 Pursuant thereto, respondent Alfredo L. Juinio, then Minister of Public Works, Transportation and Communications and respondent Romeo P. Edu, then Commissioner of Land Transportation Commission issued on June 11, 1979, Memorandum Circular No. 39, which imposed "the 24

penalties of fine, confiscation of vehicle and cancellation of registration on owners of the above-specified vehicles" found violating such Letter of Instruction. 4 It was then alleged by petitioners that "while the purpose for the issuance of the LOI 869 is laudable, to wit, energy conservation, the provision banning the use of H and EH [vehicles] is unfair, discriminatory, [amounting to an] arbitrary classification" and thus in contravention of the equal protection clause. 5 Moreover, for them, such Letter of Instruction is a denial of due process, more specifically, "of their right to use and enjoy their private property and of their freedom to travel and hold family gatherings, reunions and outings on week-ends and holidays," inviting attention to the fact that others not included in the ban enjoying "unrestricted freedom." 6 It would follow, so they contend that Memorandum Circular No. 39 imposing penalties of fine, confiscation of the vehicle and cancellation of license is likewise unconstitutional, for being violative of the doctrine of "undue delegation of legislative power." 7 It is to be noted that such Memorandum Circular does not impose the penalty of confiscation but merely that of impounding, fine, and for the third offense that of cancellation of certificate of registration and for the rest of the year or for ninety days whichever is longer.
prcd

This Court gave due course to the petition requiring respondent to answer. There was admission of the facts as substantially alleged except, as previously noted, that the ban starts at 12:00 a.m. rather than 1:00 a.m. of a Saturday or of a holiday and as to the mention of a Willy's Kaiser jeep being registered in the name of a certain Teresita Urbina, about which respondents had no knowledge. There was a denial of the allegations that the classification of vehicles into heavy (H) and extra heavy (EH) on the other hand and light and bantam on the other hand was violative of equal protection and the regulation as to the use of the former cars on the dates specified a transgression of due process. The answer likewise denied that there was an undue delegation of legislative power, reference being made to the Land Transportation and Traffic Code. 8 There was also a procedural objection raised, namely, that what is sought amounts at most to an advisory opinion rather than an adjudication of a case or controversy.
LLpr

Petitioners filed a motion to be allowed to reply to the answer. It was granted. The reply, considering its exhaustive character serving as its memorandum, stressed anew what it emphasized as the arbitrary, unreasonable, and oppressive aspects of the challenged Letter of Instruction and Memorandum Circular No. 39. It disputed what it characterized as an "erroneous and arbitrary presumption that heavy car owners unnecessarily use and therefore waste gasoline whenever they drive their cars on week-ends and holidays;" 9 it stigmatized the ban as defeating its "avowed purpose in the case of the affluent who own not only heavy limousines but also many small cars [as] they may be compelled to use at least two small cars;" 10 referred to the high cost of taxis or other public transports for those "not able to afford expensive small cars [possibly] only one heavy and possible old model;" 11 cited the case of "many eight cylinder vehicles which because of their weight have been registered as light but in fact consume more or as much gasoline as the banned vehicles." 12 Their conclusion is that "the ban imposed, in result and effect is class legislation." 13 The parties were required to submit memoranda. Respondents did so but not petitioners. They relied on their reply to the answer as noted, a rather comprehensive pleading. For reasons to be set forth, this Court holds that the petition cannot prosper. 1.First as to the procedural objection. In the memorandum for respondents, one of the issues raised was whether "the power of judicial review may be invoked considering the inadequacy of the record and the highly abstract and academic questions raised by the petitioners." 14 It is inaccurate to say that the record is inadequate. It does not admit of doubt that the ban applies to petitioners who are "the registered owners of an eight cylinder 1969 Buick, and the vendees of a six cylinder Willy's kaiser jeep, which are both classified as heavy or H." 15 To that extent, therefore, the enforcement of the assailed Letter of Instruction will amount to a deprivation of what otherwise would be a valid exercise of a property right. Thus they fall squarely within "the unchallenged rule" as to who may raise a constitutional question, namely, to quote the language of Justice Laurel in the leading case of People v. Vera,16 "that the person who impugns the validity of a statute must 25

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." 17 Moreover, that rule has been considerably relaxed. 18 The question then is neither abstract nor academic as contended by respondents. 2.There is, however, this formidable obstacle that confronts petitioners. What they seek is for this Court to hold that a Letter of Instruction, a regulatory measure precisely enacted to cope with the serious and grave problem of energy conservation, is void on its face. Such a task is rendered unusually difficult by what has been referred to by Justice Laurel in the leading case of Angara v. Electoral Commission 19 as the "presumption of constitutionality" and by the same jurist in the case of People v. Vera 20 in slightly different words "a presumption that such an act falls within constitutional limitations." There is need then for a factual foundation of invalidity. In the language of Ermita-Malate Hotel & Motel Operations Association, Inc. v. City Mayor or Manila: "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., where the American Supreme Court through Justice Brande is 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 presumption of constitutionality must prevail in the absence of some factual foundation of record for overthrowing the statute.'" 21 3.It is true, of course, that there may be instances where a police power measure may, because of its arbitrary, oppressive or unjust character, be held offensive to the due process clause and, therefore, may, when challenged in an appropriate legal proceeding, be declared void on its face. This is not one of them. A recital of the whereas clauses of the Letter of Instruction makes it clear. Thus: "[Whereas], developments in the international petroleum supply situation continue to follow a trend of limited production and spiralling prices thereby precluding the possibility of immediate relief in supplies within the foreseeable future; [Whereas], the uncertainty of fuel supply availability underscores a compelling need for the adoption of positive measures designed to insure the viability of the country's economy and sustain its developmental growth; [Whereas], to cushion the effect of increasing oil prices and avoid fuel supply disruptions, it is imperative to adopt a program directed towards the judicious use of our energy resources complemented with intensified conservation efforts and efficient utilization thereof; . . .." 22 What is undeniable is that the action taken is an appropriate response to a problem that presses urgently for solution. It may not be the only alternative, but its reasonableness is immediately apparent. Thus, to repeat, substantive due process, which is the epitome of reasonableness and fair play, is not ignored, much less infringed. 4.In the interplay between such a fundamental right and police power, especially so where the assailed governmental action deals with the use of one's property, the latter is accorded much leeway. That is settled law. What is more, it is good law. Due process, therefore, cannot be validly invoked. As stressed in the cited Ermita-Malate Hotel decision: "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, extending as it does 'to all the great public needs.' 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 deprived of its competence to promote public health, public morals, public safety and the general welfare. Negatively put, police power is 'that inherent and plenary power in the State which enables it to prohibit all that is hurtful to the comfort, safety, and welfare of society.'" 23 5.The due process question having been disposed of, there is still the objection based on the equal protection clause to be considered. A governmental act may not be offensive to the due process clause, but may run counter to such a guarantee. Such is the case when there is no rational basis for the classification followed. 26

That is the point raised by petitioners. For them, there is no rational justification for the ban being imposed on vehicles classified as heavy (H) and extra-heavy (EH), for precisely those owned by them fall within such category. Tested by the applicable standard that must be satisfied to avoid the charge of a denial of equal protection, the objection of petitioners is shown to be lacking in merit. Such a classification on its face cannot be characterized as an affront to reason. A legal norm, according to J.M. Tuason & Co., Inc. vs. Land Tenure Administration, 24 "whether embodied in a rule, principle, or standard, constitutes a defense against anarchy at one extreme and tyranny at the other. Thereby, people living together in a community with its myriad and complex problems can minimize the friction and reduce the conflicts, to assure, at the very least, a peaceful ordering of existence. The ideal situation is for the law's benefits to be available to all, that none be placed outside the sphere of its coverage. Only thus could chance and favor be excluded and the affairs of men governed by that serene and impartial uniformity, which is of the very essence of the idea of law. The actual, given things as they are and likely to continue to be, cannot approximate the ideal. Nor is the law susceptible to the reproach that it does not take into account the realities of the situation. . . . 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. Those adversely affected may under such circumstances 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 circumstances 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 allowed. For the principle is that equal protection and security shall be given to every person under circumstances, which if not identical are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest." 25

6.Nor does it militate against the validity of the Letter of Instruction just because the ban imposed does not go as far as it could have and therefore could be less efficacious in character. That was the solution which, for the President expressing a power validly lodged in him, recommended itself. There was a situation that called for a corrective measure. He decided that what was issued by him would do just that or, at the very least, help in easing the situation. That it did not cover other matters which could very well have been regulated does not call for a declaration of nullity. The President, to paraphrase Lutz v. Araneta, 26 "is not required by the Constitution to adhere to the policy of all or none." 27 It is quite obvious then that no equal protection question arises. 7.It may not be amiss to refer to a 1981 American Supreme Court decision, Minnesota v. Clover Leaf Creamery Company. 28 Respondent along with several other business corporations adversely affected involved in the manufacture and utilization of plastic milk containers filed suit in a Minnesota district court seeking to enjoin enforcement of a Minnesota statute banning the retail sale of milk in plastic nonreturnable, nonrefillable containers, but permitting such sale in other nonreturnable, nonrefillable containers, such as paperboard, milk cartons. After conducting extensive evidentiary hearings, the Minnesota court enjoined enforcement of the statute, finding that it violated among others the equal protection clause of the Fourteenth Amendment to the Federal Constitution. The Minnesota Supreme Court affirmed. On certiorari, the United States Supreme Court reversed, with only Justice Stevens dissenting. The opinion by Justice Brennan noted that "proponents of the legislation argued that it would promote resource conservation, ease solid waste disposal problems, and conserve energy." 29 That sufficed for the Court to conclude "that the ban on plastic nonreturnable milk containers bears a rational relation to the State's objectives, and must be sustained under the Equal Protection Clause."30 It does show that notwithstanding the "new equal protection approach" with its emphasis on "suspect classification" and "fundamental rights and interests standard," a concept so ably expounded by professor Gunther, the "rational relation test" 31 still retains its validity. Not that there could be any objection to the classification here followed as being in any way susceptible to such a pejorative expression as "suspect" 27

or that the assailed Letter of Instruction does not qualify under "the fundamental rights and interests" standard.
prcd

8.There was set forth in the petition what were referred to as "other reasonable measures which the authorities concerned with energy conservation can take immediately, which are in fact acceptable and obviously called for and should have been done long ago, to wit: 1. require and establish taxi stands equipped with efficient telephone and communication systems; 2. strict implementation and observance of cargo truck hours on main arteries; 3. strict observance of traffic rules; 4. effective solution of traffic problems and decongestion of traffic through rerouting and quick repair of roads and efficient operation of double decker buses; 5. rationing of gasoline to avoid panic buying and give the private car owner the option and responsibility of deciding on the use of his allocation; 6. allow neon and electrically devised advertising signs only from five o'clock p.m. to nine o'clock p.m.; 7. prohibit immediately the importation of heavy and luxury cars and seriously re-examine the car manufacturing program." 32 Admittedly, such measures are conducive to energy conservation. The question before us however is limited to whether or not Letter of Instruction 869 as implemented by Memorandum Circular No. 39 is violative of certain constitutional rights. It goes no further than that. The determination of the mode and manner through which the objective of minimizing the consumption of oil products may be attained is left to the discretion of the political branches.33 Absent therefore the alleged infringement of constitutional rights, more precisely the due process and equal protection guarantees, this Court cannot adjudge Letter of Instruction No. 869 as tainted by unconstitutionality.
cdphil

9.It was likewise contended that Memorandum Circular No. 39, issued by the then respondent Minister of Public Works, Transportation and Communications, and then respondent Land Transportation Commissioner, imposing the penalties "of fine, confiscation of vehicle and cancellation of license is likewise unconstitutional," petitioners invoking the principle of non-delegation of legislative power. 34 To that extent that a Letter of Instruction may be viewed as an exercise of the decree-making power of the President, then such an argument is futile. If, however, viewed as a compliance with the duty to take care that the laws be faithfully executed, as a consequence of which subordinate executive officials may in turn issue implementing rules and regulations, then the objection would properly be considered as an ultra vires allegation. There is this relevant excerpt from Teoxon v. Member of the Board of Administrators: 35 "1. The recognition of the power of administrative officials to promulgate rules in the implementation of the statute, necessarily limited to what is provided for in the legislative enactment, may be found in the early case of United States v. Barrias decided in 1908. Then came, in a 1914 decision, United States v. Tupasi Molina, a delineation of the scope of such competence. Thus: 'Of course the regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law, and for the sole purpose of carrying into effect its general provisions. By such regulations, of course, the law itself can not be extended. So long, however, as the regulations relate solely to carrying into effect the provisions of the law, they are valid.' In 1936, in People v. Santos, this Court expressed its disapproval of an administrative order that would amount to an excess of the regulatory power vested in an administrative official. We reaffirmed such a doctrine in a 1951 decision, where we again made clear that where an administrative order betrays inconsistency or repugnancy to the provisions of the Act, 'the mandate of the Act must prevail and must be followed.' Justice Barrera, speaking for the Court in Victorias Milling Company, Inc. v. Social Security Commission, citing Parker as well as Davis did tersely sum up the matter thus: 'A rule is binding on the courts so long as the procedure fixed for its promulgation is followed and its scope is within the statutory granted by the legislature, even if the courts are not in agreement with the policy stated therein or its innate wisdom . . .. On the other hand, administrative interpretation of the law is at best merely advisory, for it is the courts that finally determine what the law means.' It cannot be otherwise as the Constitution limits the authority of the President, in whom all executive power resides, to take care that the laws be faithfully executed. No lesser administrative executive office or agency then can, contrary to the express language of the Constitution, assert for itself a more extensive prerogative." 36 It was alleged in the Answer of Solicitor General Estelito P. Mendoza that Letter of Instruction 869 and Memorandum Circular No. 39 were adopted pursuant to the Land Transportation and Traffic Code. 37 It contains a specific provision as to penalties. 38 Thus: "For violation of any provisions of this Act or 28

regulations promulgated pursuant hereto, not hereinbefore specifically punished, a fine of not less than ten nor more than fifty pesos shall be imposed." 39 Memorandum Circular No. 39 cannot be held to be ultra vires as long as the fine imposed is not less than ten nor more than fifty pesos. As to suspension of registration, 40 the Code, insofar as applicable, provides: "Whenever it shall appear from the records of the Commission that during any twelve-month period more than three warnings for violations of this Act have been given to the owner of a motor vehicle, or that the said owner has been convicted by a competent court more than once for violation of such laws, the Commissioner may, in his discretion, suspend the certificate of registration for a period not exceeding ninety days and, thereupon, shall require the immediate surrender of the number plates . . .." 41 It follows that while the imposition of a fine or the suspension of registration under the conditions therein set forth is valid under the Land Transportation and Traffic Code, the impounding of a vehicle finds no statutory justification. To apply that portion of Memorandum Circular No. 39 would be ultra vires. It must likewise be made clear that a penalty even if warranted can only be imposed in accordance with the procedure required by law. 42 WHEREFORE, the petition is dismissed. Aquino, Guerrero, De Castro, Melencio-Herrera, Escolin, Relova and Gutierrez, Jr., JJ., concur. Makasiar and Concepcion, JJ., took no part. Separate Opinions ABAD SANTOS, J., dissenting: The power of the State to restrict the use of certain motor vehicles during stated days and hours as a fuelsaving measure is to me indubitable. It is anchored on the police power of the State. For this reason LOI No. 869 cannot be assailed successfully as violative of due process and equal protection guarantees of the Constitution.
cdphil

There is also no question as to the power of the Commissioner of Land Transportation and the Minister of Public Works, Transportation and Communication to issue Memorandum Circular No. 39 on June 11, 1979. The circular was necessary to implement the LOI. But it does not follow that the circular is completely immune from the taint of infirmity.

I refer to paragraph 4 of the circular which provides, inter alia, for penalties consisting of fine and suspension or cancellation of the certificate of registration for owners of motor vehicles violating the LOI. This portion of the circular is clearly illegal for the LOI is absolutely and completely devoid of legal sanctions and consequently the implementing circular cannot prescribe them. It is elementary that only the legislature (or the President in the exercise of his legislative power) can prescribe penalties. Executive officials whose task is to enforce the law can prescribe penalties only if they are authorized to do so within specified limits by the legislature. It is contended by the respondents that the LOI and the implementing circular were adopted pursuant to the Land Transportation and Traffic Code Republic Act No. 4136. This contention is utterly baseless. LOI No. 869 can be compared to a multiple independently targeted ballistic missile. It tasks various agencies of the government as follows:

29

"1.The Ministry of Energy shall, during the period of tight supply, limit, as necessary, sales of fuel products by oil companies and other outlets to all consumers including the government and the Armed Forces of the Philippines. Initially sales shall be limited to 1978 levels. This may be adjusted upward or downward as required to balance supply with demand and to equitably distribute available supplies. Moreover, the Ministry of Energy is hereby authorized to set supply priorities and to establish supply allocations accordingly. 2.The Ministry of Local Government and Community Development in cooperation with the Ministry of Energy shall formulate energy conservation plans and implement the same through the Barangay brigades; moreover, it shall assist in the implementation of other conservation measures to be instituted by other government agencies. 3.The Metro Manila Commission, in coordination with the appropriate government agencies, shall develop, implement and supervise a program for the implementation of the Executive Order on the staggering of office hours of both government and private sectors to achieve optimum use of transportation facilities, as well as to improve traffic flow. 4.All Ministries, agencies and corporations of the government shall discontinue the use of airconditioning facilities in offices where adequate ventilation is available. Any use of airconditioning facilities by government offices shall be only with prior approval of the respective ministers and, where allowed, temperature shall be kept at a minimum of 78 F. 5.The Ministry of Public Works, Transportation and Communications shall prohibit the use of private motor vehicles under the "H" and "EH" classifications of the LTC on weekends and holidays starting 0001 hours, Saturday morning, (or the day of the holiday) until 0500 hours, Monday morning (or the day after the holiday). Exempted from this prohibition are motor vehicles of the following classifications: (a)S (Service) (b)T (Truck) (c)DPL (Diplomatic) (d)CC (Consular Corps) (e)TC (Tourist Cars) 6.The Metro Manila Traffic Management Authority shall, in coordination with the appropriate ministries, institute traffic flow improvement measures to ensure better traffic flow. These agencies, moreover, shall review the traffic citation system in order to simplify the application of sanctions for traffic violations. 7.The Ministry of Public Works, Transportation and Communication shall review the registration requirements of vehicles with a view to weeding out inefficient motor vehicles. 8.The Ministry of National Defense shall prohibit sports activities involving mainly the use of motor vehicles, watercraft and aircraft, including but not limited to car and motorcycle rallies, racing and similar events. 9.All government Ministries, agencies and corporations shall limit the use of government vehicles to essential activities and shall review travel program and schedules to minimize unnecessary trips.

30

10.The Metro Manila Commission, in coordination with the appropriate agencies, shall study the feasibility of designating pedestrian malls and bicycle lanes. 11.The Ministry of National Defense shall intensify the drive against hoarding or black marketing of fuel, especially of kerosene and diesel and other petroleum products which from time to time may be short of supply. 12.The Ministry of Energy shall monitor and report on the implementation of the foregoing measures."

How can it be claimed with a straight face that the LOI was adopted pursuant to R.A. No. 4136 when nowhere in the LOI Is the law mentioned aside from the fact that the Ministry of Public Works, Transportation and Communication which is entrusted with the enforcement of R.A. No. 4136 is only one of the many agencies involved in conserving energy resources? It is obvious for any one willing to see that R.A. No. 4136 has no relevance to the LOI. Such being the case, the circular which is merely an accessory to the LOI cannot also be related to R.A. No. 4136.
cdphil

LOI No. 869 is constitutional but its application pursuant to Memorandum Circular No. 39 is not. For this reason, I vote to grant the petition. I close this dissent with the following observation: the prohibition against the use of certain vehicles during certain times has not been uniformly and consistently enforced. We are a nation surrounded by rules but many of which are not enforced or enforced indifferently. This situation breeds contempt instead of respect for the law. A few rules that are consistently enforced are better than many which are violated with impunity.
Cdpr

Teehankee and Plana, JJ., concur.

[G.R. Nos. 95203-05. December 18, 1990.] SENATOR ERNESTO MACEDA, petitioner, vs. ENERGY REGULATORY BOARD (ERB); MARCELO N. FERNANDO, ALEJANDRO B. AFURONG; REX V. TANTIONGCO; and OSCAR E. ALA, in their collective official capacities as Chairman and Members of the Board (ERB), respectively; CATALINO MACARAIG, in his quadruple official capacities as Executive Secretary, Chairman of Philippine National Oil Company; Office of the Energy Affairs, and with MANUEL ESTRELLA, in their respective official capacities as Chairman and President of the Petron Corporation; PILIPINAS SHELL PETROLEUM CORPORATION; with CESAR BUENAVENTURA and REY GAMBOA as chairman and President, respectively; CALTEX PHILIPPINES with FRANCIS ABLAN, President and Chief Executive Officer; and the Presidents of Philippine Petroleum Dealer's Association, Caltex Dealer's Co., Petron Dealer's Asso., Shell Dealer's Asso. of the Phil., Liquefied Petroleum Gas Institute of the Phils., any and all concerned gasoline and petrol dealers or stations; and such other persons, officials, and parties, acting for and on their behalf; or in representation of and/or under their authority,respondents. [G.R. Nos. 95119-21. December 18, 1990.]

31

OLIVER O. LOZANO, petitioner, vs. ENERGY REGULATORY BOARD (ERB), PILIPINAS SHELL PETROLEUM CORPORATION, CALTEX (PHIL.), INC., and PETRON CORPORATION, respondents.

Padilla, Jimenez, Kintanar and Asuncion Law Firm for petitioner. Diosdado L. Mendiola and Armando Batara for Pilipinas Shell. Alikpala, De Guzman, Gamboa for Petron Corporation. Joselia Poblador for Caltex, Philippines.

DECISION

SARMIENTO, J :
p

The petitioners pray for injunctive relief, to stop the Energy Regulatory Board (Board hereinafter) from implementing its Order, dated September 21, 1990, mandating a provisional increase in the prices of petroleum and petroleum products, as follows:
PRODUCTS IN PESOS PER LITER OPSF Premium Gasoline1.7700 Regular Gasoline1.7700 Avturbo1.8664 Kerosene1.2400 Diesel Oil1.2400 Fuel Oil1.4900 Feedstock1.4900 LPG0.8487 Asphalts2.7160 Thinners1.7121
1

It appears that on September 10, 1990, Caltex (Philippines), Inc., Pilipinas Shell Petroleum Corporation, and Petron Corporation proferred separate applications with the Board for permission to increase the wholesale posted prices of petroleum products, as follows:
CaltexP3.2697 per liter

32

Shell2.0338 per liter Petron2.00 per liter

2

and meanwhile, for provisional authority to increase temporarily such wholesale posted prices pending further proceedings.
Cdpr

On September 21, 1990, the Board, in a joint (on three applications) Order granted provisional relief as follows:
WHEREFORE, considering the foregoing, and pursuant to Section 8 of Executive Order No. 172, this Board hereby grants herein applicants' prayer for provisional relief and, accordingly, authorizes said applicants a weighted average provisional increase of ONE PESO AND FORTY-TWO CENTAVOS (P1.42) per liter in the wholesale posted prices of their various petroleum products enumerated below, refined and/or marketed by them locally. 3

The petitioners submit that the above Order had been issued with grave abuse of discretion, tantamount to lack of jurisdiction, and correctible by certiorari. The petitioner, Senator Ernesto Maceda, 4 also submits that the same was issued without proper notice and hearing in violation of Section 3, paragraph (e), of Executive Order No. 172; that the Board, in decreeing an increase, had created a new source for the Oil Price Stabilization Fund (OPSF), or otherwise that it had levied a tax, a power vested in the legislature, and/or that it had "re-collected", by an act of taxation, ad valorem taxes on oil which Republic Act No. 6965 had abolished. The petitioner, Atty. Oliver Lozano, 5 likewise argues that the Board's Order was issued without notice and hearing, and hence, without due process of law. The intervenor, the Trade Union of the Philippines and Allied Services (TUPAS/FSM)-W.F.T.U., 6 argues on the other hand, that the increase can not be allowed since the respondents oil companies had not exhausted their existing oil stock which they had bought at old prices and that they can not be allowed to charge new rates for stock purchased at such lower rates. The Court set the cases (in G.R. Nos. 95203-05) for hearing on October 25, 1990, in which Senator Maceda and his counsel, Atty. Alexander Padilla, argued. The Solicitor General, on behalf of the Board, also presented his arguments, together with Board Commissioner Rex Tantiangco. Attys. Federico Alikpala, Jr. and Joselia Poblador represented the oil firms (Petron and Caltex, respectively). The parties were thereafter required to submit their memorandums after which, the Court considered the cases submitted for resolution. On November 20, 1990, the Court ordered these cases consolidated. On November 27, 1990, we gave due course to both petitions. The Court finds no merit in these petitions. Senator Maceda and Atty. Lozano, in questioning the lack of a hearing, have overlooked the provisions of Section 8 of Executive Order No. 172, which we quote:
"SECTION 8.Authority to Grant Provisional Relief . The Board may, upon the filing of an application, petition or complaint or at any stage thereafter and without prior hearing, on the basis of supporting

33

papers duly verified or authenticated, grant provisional relief on motion of a party in the case or on its own initiative, without prejudice to a final decision after hearing, should the Board find that the pleadings, together with such affidavits, documents and other evidence which may be submitted in support of the motion, substantially support the provisional order: Provided, That the Board shall immediately schedule and conduct a hearing thereon within thirty (30) days thereafter, upon publication and notice to all affected parties.
LLphil

As the Order itself indicates, the authority for provisional increase falls within the above provision. There is no merit in the Senator's contention that the "applicable" provision is Section 3, paragraph (e) of the Executive Order, which we quote:
(e)Whenever the Board has determined that there is a shortage of any petroleum product, or when public interest so requires, it may take such steps as it may consider necessary, including the temporary adjustment of the levels of prices of petroleum products and the payment to the Oil Price Stabilization Fund created under Presidential Decree No. 1956 by persons or entities engaged in the petroleum industry of such amounts as may be determined by the Board, which will enable the importer to recover its cost of importation.

What must be stressed is that while under Executive Order No. 172, a hearing is indispensable, it does not preclude the Board from ordering, ex parte, a provisional increase, as it did here, subject to its final disposition of whether or not: (1) to make it permanent; (2) to reduce or increase it further; or (3) to deny the application. Section 37 paragraph (e) is akin to a temporary restraining order or a writ of preliminary attachment issued by the courts, which are given ex parte, and which are subject to the resolution of the main case. Section 3, paragraph (e) and Section 8 do not negate each other, or otherwise, operate exclusively of the other, in that the Board may resort to one but not to both at the same time. Section 3(e) outlines the jurisdiction of the Board and the grounds for which it may decree a price adjustment, subject to the requirements of notice and hearing. Pending that, however, it may order, under Section 8, an authority to increase provisionally, without need of a hearing, subject to the final outcome of the proceeding. The Board, of course, is not prevented from conducting a hearing on the grant of provisional authority which is of course, the better procedure however, it can not be stigmatized later if it failed to conduct one. As we held in Citizens' Alliance for Consumer Protection v. Energy Regulatory Board. 7
In the light of Section 8 quoted above, public respondent Board need not even have conducted formal hearings in these cases prior to issuance of its Order of 14 August 1987 granting a provisional increase of prices. The Board, upon its own discretion and on the basis of documents and evidence submitted by private respondents, could have issued an order granting provisional relief immediately upon filing by private respondents of their respective applications. In this respect, the Court considers the evidence presented by private respondents in support of their applications i.e., evidence showing that importation costs of petroleum products had gone up; that the peso had depreciated in value; and that the Oil Price Stabilization Fund (OPSF) had by then been depleted as substantial and hence constitutive of at least prima facie basis for issuance by the Board of a provisional relief order granting an increase in the prices of petroleum products. 8

We do not therefore find the challenged action of the Board to have been done in violation of the due process clause. The petitioners may contest however, the applications at the hearings proper. Senator Maceda's attack on the Order in question on premises that it constitutes an act of taxation or that it negates the effects of Republic Act No. 6965, can not prosper. Republic Act No. 6965 operated to lower taxes on petroleum and petroleum products by imposing specific taxes rather than ad valorem taxes thereon; it is, not, however, an insurance against an "oil hike", whenever warranted, or is it a price control mechanism on 34

petroleum and petroleum products. The statute had possibly forestalled a larger hike, but it operated no more.
LLjur

The Board Order authorizing the proceeds generated by the increase to be deposited to the OPSF is not an act of taxation. It is authorized by Presidential Decree No. 1956, as amended by Executive Order No. 137, as follows:

SECTION 8. There is hereby created a Trust Account in the books of accounts of the Ministry of Energy to be designated as Oil Price Stabilization Fund (OPSF) for the purpose of minimizing frequent price changes brought about by exchange rate adjustments and/or changes in world market prices of crude oil and imported petroleum products. The Oil Price Stabilization Fund (OPSF) may be sourced from any of the following: a)Any increase in the tax collection from ad valorem tax or customs duty imposed on petroleum products subject to tax under this Decree arising from exchange rate adjustment, as may be determined by the Minister of Finance in consultation with the Board of Energy; b)Any increase in the tax collection as a result of the lifting of tax exemptions of government corporations, as may be determined by the Minister of Finance in consultation with the Board of Energy; c)Any additional amount to be imposed on petroleum products to augment the resources of the Fund through an appropriate Order that may be issued by the Board of Energy requiring payment by persons or companies engaged in the business of importing, manufacturing and/or marketing petroleum products; d)Any resulting peso cost differentials in case the actual peso costs paid by oil companies in the importation of crude oil and petroleum products is less than the peso costs computed using the reference foreign exchange rates as fixed by the Board of Energy.

Anent claims that oil companies can not charge new prices for oil purchased at old rates, suffice it to say that the increase in question was not prompted alone by the increase in world oil prices arising from tension in the Persian Gulf. What the Court gathers from the pleadings as well as events of which it takes judicial notice, is that: (1) as of June 30, 1990, the OPSF has incurred a deficit of P6.1 Billion; (2) the exchange rate has fallen to P28.00 to $1.00; (3) the country's balance of payments is expected to reach $1 Billion; (4) our trade deficit is at $2.855 Billion as of the first nine months of the year. Evidently, authorities have been unable to collect enough taxes necessary to replenish the OPSF as provided by Presidential Decree No. 1956, and hence, there was no available alternative but to hike existing prices. The OPSF, as the Court held in the aforecited CACP cases, must not be understood to be a funding designed to guarantee oil firms' profits although as a subsidy, or a trust account, the Court has no doubt that oil firms make money from it. As we held there, however, the OPSF was established precisely to protect the consuming public from the erratic movement of oil prices and to preclude oil companies from taking advantage of fluctuations occurring every so often. As a buffer mechanism, it stabilizes domestic prices by bringing about a uniform rate rather than leaving pricing to the caprices of the market. In all likelihood, therefore, an oil hike would have probably been imminent, with or without trouble in the Gulf, although trouble would have probably aggravated it.
LLphil

35

The Court is not to be understood as having prejudged the justness of an oil price increase amid the above premises. What the Court is saying is that it thinks that based thereon, the Government has made out a prima facie case to justify the provisional increase in question. Let the Court therefore make clear that these findings are not final; the burden, however, is on the petitioners' shoulders to demonstrate the fact that the present economic picture does not warrant a permanent increase. There is no doubt that the increase in oil prices in question (not to mention another one impending, which the Court understands has been under consideration by policy-makers) spells hard(er) times for the Filipino people. The Court can not, however, debate the wisdom of policy or the logic behind it (unless it is otherwise arbitrary), not because the Court agrees with policy, but because the Court is not the suitable forum for debate. It is a question best judged by the political leadership which after all, determines policy, and ultimately, by the electorate, that stands to be better for it or worse off, either in the short or long run. At this point, the Court shares the indignation of the people over the conspiracy of events and regrets its own powerlessness, if by this Decision it has been powerless. The constitutional scheme of things has simply left it with no choice. In fine, we find no grave abuse of discretion committed by the respondent Board in issuing its questioned Order. WHEREFORE, these petitions are DISMISSED. No costs. SO ORDERED.

Narvasa, Gutierrez, Jr ., Cruz, Gancayco, Bidin, Grio Aquino, Medialdea and Regalado, JJ., concur. Fernan, C.J., Melencio-Herrera and Padilla, JJ., took no part. Feliciano, J., is on leave.
Separate Opinions PARAS, J ., dissenting: I dissent. In fixing the oil prices complained of, the Energy Regulatory Board (ERB) gravely abused its discretion (1)in approving the prices without due process of law, and (2)in exercising the taxing power in gross violation of the 1987 Constitution which vests such power only in Congress.
LLphil

With respect to due process, it will be noted that it is Sec. 3(e) (and not Sec. 8) of Ex. Order No. 172 which should apply to the instant case (and therefore a hearing is essential) 1 for it is Sec. 3(e) that refers to "the temporary adjustment of the levels of prices of petroleum products" or instances "when public interest so requires." Sec. 8, which is relied upon by the majority opinion, does NOT speak of price increases. Additionally it is clear that in the instant case, "public interest" [also mentioned in Sec. 3 (e)] necessitated a prior hearing.

36

Anent the unconstitutional use of the taxing power, the decision of the majority says that "the Board Order authorizing the proceeds generated by the increases" is "authorized by Presidential Decree No. 1456, as amended by Executive Order No. 137" (See Decision, pp. 7-8). Assuming that such is authorized by law, still a law, no matter how imperative, cannot prevail over the Constitution which grants only to Congress the power to tax. And indeed, there can be no denying the fact that when revenue is earned by the government from the consuming public (except when only licenses are concerned) there is an exercise of the taxing power. I am of course aware of the dangerous economic quagmire to which our country has been plunged by the sadism precipitating the Middle East crisis, but certainly one error cannot be corrected by another error. Besides there are more significant and clear-cut reasons for our economic crisis: namely, the intentional depreciation (actually, a devaluation) of our already demeaned currency, our unfortunate liberalization of imports, and our slavish subservience to the dictates of the IMF.
Cdpr

[G.R. No. 78385. August 31, 1987.] PHILIPPINE CONSUMERS FOUNDATION, INC., petitioner, vs. THE SECRETARY OF EDUCATION, CULTURE AND SPORTS, respondent. SYLLABUS 1.ADMINISTRATIVE LAW; EDUCATION ACT OF 1982; DEPARTMENT OF EDUCATION, CULTURE AND SPORTS; POWER TO REGULATE THE EDUCATIONAL SYSTEM INCLUDES THE POWER TO PRESCRIBE SCHOOL FEES. We are not convinced by the argument that the power to regulate school fees "does not always include the power to increase" such fees. Section 57 (3) of Batas Pambansa Blg. 232, otherwise known as The Education Act of 1982, vests the DECS with the power to regulate the educational system in the country. Section 70 of the same Act grants the DECS the power to issue rules which are likewise necessary to discharge its functions and duties under the law. In the absence of a statute stating otherwise, this power includes the power to prescribe school fees. No other government agency has been vested with the authority to fix school fees and as such, the power should be considered lodged with the DECS if it is to properly and effectively discharge its functions and duties under the law. 2.CONSTITUTIONAL LAW; DUE PROCESS CLAUSE; RATES PRESCRIBED BY THE DEPARTMENT OF EDUCATION, CULTURE AND SPORTS, REQUIRES NO PRIOR NOTICE AND HEARING; REASON. The function of prescribing rates by an administrative agency may be either a legislative or an adjudicative function. If it were a legislative function, the grant of prior notice and hearing to the affected parties is not a requirement of due process. As regards rates prescribed by an administrative agency in the exercise of its quasi-judicial function, prior notice and hearing are essential to the validity of such rates. When the rules and/or rates laid down by an administrative agency are meant to apply to all enterprises of a given kind throughout the country, they may partake of a legislative character. Where the rules and the rates imposed apply exclusively to a particular party, based upon a finding of fact, then its function is quasi-judicial in character. Is Department Order No. 37 issued by the DECS in the exercise of its legislative function? We believe so. The assailed Department Order prescribes the maximum school fees that may be charged by all private schools in the country for schoolyear 1987 to 1988. This being so, prior notice and hearing are not essential to the validity of its issuance. 3.REMEDIAL LAW; EVIDENCE; BURDEN OF PROOF AND PRESUMPTIONS; PRESUMPTION THAT OFFICIAL DUTY HAS BEEN REGULARLY PERFORMED, APPLIED IN CASE AT BAR. This observation notwithstanding, 37

there is a failure on the part of the petitioner to show clear and convincing evidence of such arbitrariness. As the record of the case discloses, the DECS is not without any justification for the issuance of the questioned Department Order. It would be reasonable to assume that the report of the Task Force created by the DECS, on which it based its decision to allow an increase in school fees, was made judiciously. Moreover, upon the instance of the petitioner, as it so admits in its Petition, the DECS had actually reduced the original rates of 15% to 20% down to 10% to 15%, accordingly. Under the circumstances peculiar to this case, We cannot consider the assailed Department Order arbitrary. Under the Rules of Court, it is presumed that official duty has been regularly performed. In the absence of proof to the contrary, that presumption prevails. This being so, the burden of proof is on the party assailing the regularity of official proceedings. In the case at bar, the petitioner has not successfully disputed the presumption.

DECISION

GANCAYCO, J :
p

This is an original Petition for prohibition with a prayer for the issuance of a writ of preliminary injunction. The record of the case discloses that the herein petitioner Philippine Consumers Foundation, Inc. is a nonstock, nonprofit corporate entity duly organized and existing under the laws of the Philippines. The herein respondent Secretary of Education, Culture and Sports is a ranking cabinet member who heads the Department of Education, Culture and Sports of the Office of the President of the Philippines. On February 21, 1987, the Task Force on Private Higher Education created by the Department of Education, Culture and Sports (hereinafter referred to as the DECS) submitted a report entitled "Report and Recommendations on a Policy for Tuition and Other School Fees." The report favorably recommended to the DECS the following courses of action with respect to the Government's policy on increases in school fees for the schoolyear 1987 to 1988
(1)Private schools may be allowed to increase its total school fees by not more than 15 per cent to 20 per cent, without the need for the prior approval of the DECS. Schools that wish to increase school fees beyond the ceiling would be subject to the discretion of the DECS; (2)Any private school may increase its total school fees in excess of the ceiling, provided that the total school fees will not exceed P1,000.00 for the schoolyear in the elementary and secondary levels, and P50.00 per academic unit on a semestral basis for the collegiate level. 1

The DECS took note of the report of the Task Force and on the basis of the same, the DECS, through the respondent Secretary of Education, Culture and Sports (hereinafter referred to as the respondent Secretary), issued an Order authorizing, inter alia, the 15% to 20% increase in school fees as recommended by the Task Force. The petitioner sought a reconsideration of the said Order, apparently on the ground that the increases were too high. 2 Thereafter, the DECS issued Department Order No. 37 dated April 10, 1987 modifying its previous Order and reducing the increases to a lower ceiling of 10% to 15%, accordingly. 3 Despite this reduction, the petitioner still opposed the increases. On April 23, 1987, the petitioner, through counsel, sent a telegram to the President of the Philippines urging the suspension of the implementation of Department Order No. 37. 4 No response appears to have been obtained from the Office of the President.
LLjur

Thus, on May 20, 1987, the petitioner, allegedly on the basis of the public interest, went to this Court and filed the instant Petition for prohibition, seeking that judgment be rendered declaring the questioned Department 38

Order unconstitutional. The thrust of the Petition is that the said Department Order was issued without any legal basis. The petitioner also maintains that the questioned Department Order was issued in violation of the due process clause of the Constitution inasmuch as the petitioner was not given due notice and hearing before the said Department Order was issued. In support of the first argument, the petitioner argues that while the DECS is authorized by law to regulate school fees in educational institutions. the power to regulate does not always include the power to increase school fees. 5 Regarding the second argument, the petitioner maintains that students and parents are interested parties that should be afforded an opportunity for a hearing before school fees are increased. In sum, the petitioner stresses that the questioned Order constitutes a denial of substantive and procedural due process of law. Complying with the instructions of this Court, 6 the respondent Secretary submitted a Comment on the Petition. 8 Thereafter, We considered the case submitted for resolution. After a careful examination of the entire record of the case, We find the instant Petition devoid of merit. We are not convinced by the argument that the power to regulate school fees "does not always include the power to increase" such fees. Section 57 (3) of Batas Pambansa Blg. 232, otherwise known as The Education Act of 1982, vests the DECS with the power to regulate the educational system in the country, to wit:
'SEC. 57.Educations and powers of the Ministry. The Ministry shall: "xxx xxx xxx. "(3)Promulgate rules and regulations necessary for the administration, supervision and regulation of the educational system in accordance with declared policy. "xxxxxxxxx.
9

Section 70 of the same Act grants the DECS the power to issue rules which are likewise necessary to discharge its functions and duties under the law, to wit:
LexLib

SEC. 70.Rule-making Authority. The Minister of Education and Culture, charged with the administration and enforcement of this Act, shall promulgate the necessary implementing rules and regulations."

In the absence of a statute stating otherwise, this power includes the power to prescribe school fees. No other government agency has been vested with the authority to fix school fees and as such, the power should be considered lodged with the DECS if it is to properly and effectively discharge its functions and duties under the law. We find the remaining argument of the petitioner untenable. The petitioner invokes the due process clause of the Constitution against the alleged arbitrariness of the assailed Department Order. The petitioner maintains that the due process clause requires that prior notice and hearing are indispensable for the Department Order to be validly issued. We disagree.

39

The function of prescribing rates by an administrative agency may be either a legislative or an adjudicative function. If it were a legislative function, the grant of prior notice and hearing to the affected parties is not a requirement of due process. As regards rates prescribed by an administrative agency in the exercise of its quasi-judicial function, prior notice and hearing are essential to the validity of such rates. When the rules and/or rates laid down by an administrative agency are meant to apply to all enterprises of a given kind throughout the country, they may partake of a legislative character. Where the rules and the rates imposed apply exclusively to a particular party, based upon a finding of fact, then its function is quasi-judicial in character. 9

Is Department Order No. 37 issued by the DECS in the exercise of its legislative function? We believe so. The assailed Department Order prescribes the maximum school fees that may be charged by all private schools in the country for schoolyear 1987 to 1988. This being so, prior notice and hearing are not essential to the validity of its issuance. This observation notwithstanding, there is a failure on the part of the petitioner to show clear and convincing evidence of such arbitrariness. As the record of the case discloses, the DECS is not without any justification for the issuance of the questioned Department Order. It would be reasonable to assume that the report of the Task Force created by the DECS, on which it based its decision to allow an increase in school fees, was made judiciously. Moreover, upon the instance of the petitioner, as it so admits in its Petition, the DECS had actually reduced the original rates of 15% to 20% down to 10% to 15%, accordingly. Under the circumstances peculiar to this case, We cannot consider the assailed Department Order arbitrary. Under the Rules of Court, it is presumed that official duty has been regularly performed. 10 In the absence of proof to the contrary, that presumption prevails. This being so, the burden of proof is on the party assailing the regularity of official proceedings. In the case at bar, the petitioner has not successfully disputed the presumption. We commend the petitioner for taking the cudgels for the public, especially the parents and the students of the country. Its zeal in advocating the protection of the consumers in its activities should be landed rather than discouraged. But a more convincing case should be made out by it if it is to seek relief from the courts some time in the future. Petitioner must establish that respondent acted without or in excess of her jurisdiction; or with grave abuse of discretion, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law before the extraordinary writ of prohibition may issue. 11 This Court, however, does not go to the extent of saying that it gives its judicial imprimatur to future increases in school fees. The increases must not be unreasonable and arbitrary so as to amount to an outrageous exercise of government authority and power. In such an eventuality, this Court will not hesitate to exercise the power of judicial review in its capacity as the ultimate guardian of the Constitution.
cdrep

WHEREFORE, in view of the foregoing, the instant Petition for prohibition is hereby DISMISSED for lack of merit. We make no pronouncement as to costs. SO ORDERED. Teehankee (C.J.), Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.

40

[G.R. No. 119761. August 29, 1996.] COMMISSIONER OF INTERNAL REVENUE, petitioner, vs. HON. COURT OF APPEALS, HON. COURT OF TAX APPEALS and FORTUNE TOBACCO CORPORATION, respondents.

Estelito P. Mendoza, Pio de Roda & Associates and Sycip, Salazar, Hernandez & Gatmaitan for private
respondent

SYLLABUS 1.POLITICAL LAW; ADMINISTRATIVE LAW; ADMINISTRATIVE AGENCIES; RULE MAKING POWERS; LEGISLATIVE RULE AND INTERPRETATIVE RULE; DISTINGUISHED. Let us distinguish between two kinds of administrative issuances a legislative rule and an interpretative rule. In Misamis Oriental Association of Coco Traders, Inc., vs. Department of Finance Secretary, (238 SCRA 63) the Court expressed: ". . . a legislative rule is in the nature of subordinate legislation, designed to implement a primary legislation by providing the details

thereof. In the same way that laws must have the benefit of public hearing, it is generally required that before a legislative rule is adopted there must be hearing. In this connection, the Administrative Code of 1987

provides: "Public Participation. If not otherwise required by law, an agency shall, as far as practicable, publish or circulate notices of proposed rules and afford interested parties the opportunity to submit their views prior to the adoption of any rule. "(2) In the fixing of rates, no rule or final order shall be valid unless the proposed rates shall have been published in a newspaper of general circulation at least two (2) weeks before the first hearing thereon. "(3) In case of opposition, the rules on contested cases shall be observed. "In addition such rule must be published. On the other hand, interpretative rules are designed to provide guidelines to the law which the administrative agency is in charge of enforcing." It should be understandable that when an administrative rule is merely interpretative in nature, its applicability needs nothing further than its bare issuance for it gives no real consequence more than what the law itself has already prescribed. When, upon the other hand, the administrative rule goes beyond merely providing for the means that can facilitate or render least cumbersome the implementation of the law but substantially adds to or increase the burden of those governed, it behooves the agency to accord at least to those directly affected a chance to be heard, and thereafter to be duly informed, before that new issuance is given the force and effect of law. 2.ID.; ID.; ID.; ID.; ID.; REVENUE MEMORANDUM CIRCULAR NO. 37-93; A LEGISLATIVE RULING; DUE OBSERVANCE OF THE REQUIREMENTS OF NOTICE, OF HEARING AND OF PUBLICATION FOR ITS VALIDITY SHOULD NOT HAVE BEEN IGNORED. A reading of RMC 37-93, particularly considering the circumstances under which it has been issued, convinces us that the circular cannot be viewed simply as a corrective measure(revoking in the process the previous holdings of past Commissioners) or merely as construing Section 142(c)(1) of the NIRC, as amended, but has, in fact and most importantly, been made in order to place "Hope Luxury," "Premium More" and "Champion" within the classification of locally manufactured cigarettes bearing foreign brands and to thereby have them covered by RA 7654. Specifically, the new law would have its amendatory provisions applied to locally manufactured cigarettes which at the time of its effectivity were not so classified as bearing foreign brands. Prior to the issuance of the questioned circular, "Hope Luxury," "Premium More," and "Champion" cigarettes were in the category of locally manufactured cigarettes not bearing foreign brand subject to 45% ad valorem tax. Hence, without RMC 37-93, the enactment, of RA 7654, would have had no new tax rate consequence on private respondent's products. Evidently, in order to place "Hope Luxury," "Premium More," and "Champion" cigarettes within the scope of the amendatory law and subject them to an increased tax rate, the now disputed RMC 37-93 had to be issued. In so doing, the BIR not simply interpreted the law; verily, it legislated under its quasi-legislative authority. The due observance of the requirements of notice, of hearing, and of publication should not have been then ignored. 41

3.POLITICAL LAW; LEGISLATIVE DEPARTMENT; UNIFORMITY OF TAXATION RULE; VIOLATED IN CASE AT BAR. Article VI, Section 28, paragraph 1, of the 1987 Constitution mandates taxation to be uniform and equitable. Uniformity requires that all subjects or objects of taxation, similarly situated, are to be treated alike or put on equal footing both in privileges and liabilities. Thus, all taxable articles or kinds of property of the same class must be taxed at the same rate and the tax must operate with the same force and effect in every place where the subject may be found. Apparently, RMC 37-93 would only apply to "Hope Luxury," "Premium More" and "Champion" cigarettes and, unless petitioner would be willing to concede to the submission of private respondent that the circular should, as in fact my esteemed colleague Mr. Justice Bellosillo so expresses in his separate opinion, be considered adjudicatory in nature and thus violative of due process following theAng Tibay doctrine, the measure suffers from lack of uniformity of taxation. BELLOSILLO, J.: separate opinion 1.POLITICAL LAW; ADMINISTRATIVE LAW; ADMINISTRATIVE AGENCIES; POWERS AND FUNCTIONS. Administrative agencies posses quasi-legislative or rule making powers and quasi-judicial or administrative adjudicatory powers. Quasi-legislative or rule making power is the power to make rules and regulations which results in delegated legislation that is within the confines of the granting statute and the doctrine of nondelegability and separability of powers. 2.ID.; ID.; ID.; ID.; RULE MAKING POWERS; INTERPRETATIVE RULE; CONSTRUED. Interpretative rule, one of the three (3) types of quasi-legislative or rule making powers of an administrative agency (the other two being supplementary or detailed legislation, and contingent legislation), is promulgated by the administrative agency to interpret, clarify or explain statutory regulations under which the administrative body operates. The purpose or objective of an interpretative rule is merely to construe the statute being administered. It purports to do no more than interpret the statute. Simply, the rule tries to say what the statute means. Generally, it refers to no single person or party in particular but concerns all those belonging to the same class which may be covered by the said interpretative rule. It need not be published and neither is a hearing required since it is issued by the administrative body as an incident of its power to enforce the law and is intended merely to clarify statutory provisions for proper observance by the people. In Tanada vs. Tuvera, (No. L-63915, 29 December 1986, 146 SCRA 446) this Court expressly said that "[i]nterprative regulations . . . need not be published." 3.ID.; ID.; ID.; ID.; QUASI-JUDICIAL POWERS; CONSTRUED. Quasi-judicial or administrative adjudicatory power on the other hand is the power of the administrative agency to adjudicate the rights of persons before it. It is the power to hear and determine questions of fact to which the legislative policy is to apply and to decide in accordance with the standards laid down by the law itself in enforcing and administering the same law. The administrative body exercises its quasi-judicial power when it performs in a judicial manner an act which is essentially of an executive or administrative nature, where the power to act in such manner is incidental to or reasonably necessary for the performance of the executive or administrative duty entrusted to it. In carrying out their quasi-judicial functions the administrative officers or bodies are required to investigate facts or ascertain the existence of facts, hold hearings, weigh evidence, and draw conclusions from them as basis for their official action and exercise of discretion in a judicial nature. Since rights of specific persons are affected it is elementary that in the proper exercise of quasi-judicial power due process must be observed in the conduct of the proceedings. 4.ID.; ID.; ID.; ID.; ID.; WHEN AN ADMINISTRATIVE PROCEEDING IS QUASI-JUDICIAL IN CHARACTER, NOTICE AND FAIR OPEN HEARING ARE ESSENTIAL TO THE VALIDITY OF THE PROCEEDING. The importance of due process cannot be underestimated. Too basic is the rule that no person shall be deprived of life, liberty or property without due process of law. Thus when an administrative proceeding is quasi-judicial in character, notice and fair open hearing are essential to the validity of the proceeding. The right to reasonable prior notice and hearing embraces not only the right to present evidence but also the opportunity to know the 42

claims of the opposing party and to meet them. The right to submit arguments implies that opportunity otherwise the right may as well be considered impotent. And those who are brought into contest with government in a quasi-judicial proceeding aimed at the control of their activities are entitled to be fairly advised of what the government proposes and to be heard upon its proposal before it issues its final command. 5.ID.; ID.; ID.; ID.; ID.; CARDINAL PRIMARY RIGHTS WHICH MUST BE RESPECTED IN ADMINISTRATIVE PROCEEDINGS. There are cardinal primary rights which must be respected in administrative proceedings. The landmark case of Ang Tibay vs. The Court of Industrial Relations (69 Phil. 635 [1940]) enumerated these rights. (1) the right to a hearing, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof; (2) the tribunal must consider the evidence presented; (3) the decision must have something to support itself; (4) the evidence must be substantial; (5) the decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected; (6) the tribunal or any of its judges must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision; and (7) the tribunal should in all controversial questions render its decision in such manner that the parties to the proceeding may know the various issues involved and the reasons for the decision rendered.

6.ID.; ID.; ID.; ID.; ID.; REVENUE MEMORANDUM CIRCULAR 37-93; AN ADJUDICATORY RULE; PRIOR NOTICE AND HEARING ARE REQUIRED FOR ITS VALIDITY. It is evident that in issuing RMC 37-93 petitioner Commissioner of Internal Revenue was exercising her quasi-judicial or administrative adjudicatory power. She cited and interpreted the law, made a factual finding, applied the law to her given set of facts, arrived at a conclusion, and issued a ruling aimed at a specific individual. Consequently prior notice and hearing are required. It must be emphasized that even the text alone of RMC 37-93 implies that reception of evidence during a hearing is appropriate if not necessary since it invokes BIR Ruling No. 410-88, dated August 24, 1988, which provides that "in cases where it cannot be established or there is dearth of evidence as to whether a brand is foreign or not . . ." Indeed, it is difficult to determine whether a brand is foreign or not if it is not established by, or there is dearth of, evidence because no hearing has been called and conducted for the reception of such evidence. In fine, by no stretch of the imagination can RMC 37-93 be considered purely as an interpretative rule requiring no previous notice and hearing and simply interpreting, construing, clarifying or explaining statutory regulations being administered by or under which the Bureau of Internal Revenue operates. 7.ID.; ID.; ID.; ID.; ID.; IN PROPERLY DETERMINING WHETHER A MEMORANDUM CIRCULAR IS MERELY AN INTERPRETIVE RULE OR AN ADJUDICATORY RULE, ITS VERY TENOR AND TEXT, AND THE CIRCUMSTANCES SURROUNDING ITS ISSUANCE WILL HAVE TO BE CONSIDERED. It is true that both RMC 47-91 in Misamis Oriental Association of Coco Traders v. Department of Finance Secretary, and RMC 37-93 in the instant case reclassify certain products for purposes of taxation. But the similarity between the two revenue memorandum circulars ends there. For in properly determining whether a revenue memorandum circular is merely an interpretative rule or an adjudicatory rule, its very tenor and text, and the circumstances surrounding its issuance will have to be considered. HERMOSISIMA, J., dissenting opinion: 1.POLITICAL LAW; ADMINISTRATIVE LAW; ADMINISTRATIVE AGENCIES; POWERS AND FUNCTIONS; THE COMMISSIONER OF INTERNAL REVENUE IS DULY AUTHORIZED BY LAW TO ISSUE REVENUE MEMORANDUM CIRCULAR 37-93. Section 245 of the National Internal Revenue Code, as amended, provides: "Sec. 245. Authority of Secretary of Finance to promulgate rules and regulations. The Secretary of Finance, upon recommendation of the Commissioner, shall promulgate all needful rules and regulations for the effective 43

enforcement of the provisions of this Code . . . without prejudice to the power of the Commissioner of Internal Revenue to make rulings or opinions in connection with the implementation of the provisions of internal revenue laws, including rules on the classification of articles for sales tax and similar purposes." The subject of

the questioned Circular is the reclassification of cigarettes subject to excise taxes. It was issued in connection with Section 142 (c) (1) of the National Internal Revenue Code, as amended, which imposes ad valorem excise taxes on locally manufactured cigarettes bearing a foreign brand. The same provision prescribes the ultimate criterion that determines which cigarettes are to be considered "locally manufactured cigarettes bearing a foreign brand." It provides: ". . . Whenever it has to be determined whether or not a cigarette bears a foreign brand, the listing of brands manufactured in foreign countries appearing in the current World Tobacco Directory shall govern." There is only one World Tobacco Directory for a given current year, and the same is mandated by law to be the BIR Commissioner's controlling basis for determining whether or not a particular locally manufactured cigarette is one bearing a foreign brand. In so making a determination, petitioner should inquire into the entries in the World Tobacco Directory for the given current year and shall be held bound by such entries therein. She is not required to subject the results of her inquiries to feedback from the concerned cigarette manufacturers, and it is doubtlessly not desirable nor managerially sound to court dispute thereon when the law does not, in the first place, require debate or hearing thereon. Petitioner may make such a determination because she is the Chief Executive Officer of the administrative agency that is the Bureau of Internal Revenue in which are vested quasi-legislative powers entrusted to it by the legislature in recognition of its more encompassing and unequalled expertise in the field of taxation. "The vesture of quasi-legislative and quasi-judicial powers in administrative bodies is not unconstitutional, unreasonable and oppressive. It has been necessitated by 'the growing complexity of the modern society' (Solid Homes,Inc. vs. Payawal, 177 SCRA 72, 79). More and more administrative bodies are necessary to help in the regulation of society's ramified activities. 'Specialized in the particular field assigned to them, they can deal with the problems thereof with more expertise and dispatch than can be expected from the legislature or the courts of justice' . . ." Statutorily empowered to issue rulings or opinions embodying the proper determination in respect to classifying articles, including cigarettes, for purposes of tax assessment and collection, petitioner was acting well within her prerogatives when she issued the questioned Circular. And in the exercise of such prerogatives under the law, she has in her favor the presumption of regular performance of official duty which must be overcome by clearly persuasive evidence of stark error and grave abuse of discretion in order to be overturned and disregarded. 2.ID.; ID.; ID.; ID.; QUASI-LEGISLATIVE POWERS; REVENUE MEMORANDUM CIRCULAR 37-93; HAVE NOT BEEN PROVEN TO BE ERRONEOUS OR ILLEGAL AS TO RENDER ITS ISSUANCE AN ACT OF GRAVE ABUSE OF DISCRETION. The petitioner was well within her prerogatives, in the exercise of her rule-making power, to classify articles for taxation purposes, to interpret the laws which she is mandated to administer. In interpreting the same, petitioner must, in general, be guided by the principles underlying taxation, i.e., taxes are the lifeblood of Government, and revenue laws ought to be interpreted in favor of the Government, for Government can not survive without the funds to underwrite its varied operational expenses in pursuit of the welfare of the society which it serves and protects. Private respondent claims that its business will be destroyed by the imposition of additional ad valorem taxes as a result of the effectivity of the questioned Circular. It claims that under the vested rights theory, it cannot now be made to pay higher taxes after having been assessed for less in the past. Of course private respondent will trumpet its losses, its interests, after all, being its sole concern. What private respondent fails to see is the loss of revenue by the Government which, because of erroneous determinations made by its past revenue commissioners, collected lesser taxes than what it was entitled to in the first place. It is every citizen's duty to pay the correct amount of taxes. Private respondent will not be shielded by any vested rights, for there are no vested rights to speak of respecting a wrong construction of the law by administrative officials, and such wrong interpretation does not place the Government in estoppel to correct or overrule the same. 3.ID.; ID.; ID.; ID.; ID.; MERELY AN INTERPRETATIVE RULING. Petitioner made a determination as to the classification of cigarettes as mandated by the aforecited provisions in the National Internal Revenue Code, as 44

amended. Such determination was an interpretation by petitioner of the said legal provisions. If in the course of making that interpretation and embodying the same in the questioned circular which the petitioner subsequently issued after making such a determination, private respondent's cigarette products, by their very nature of being foreign brands as evidenced by their enlistment in the World Tobacco Directory, which is the controlling basis for the proper classification of cigarettes as stipulated by the law itself, have come to be classified as locally manufactured cigarettes bearing foreign brands and as such subject to a tax rate higher than what was previously imposed thereupon based on past rulings of other revenue commissioners, such a situation is simply a consequence of the performance by petitioner of her duties under the law. No adjudication took place, much less was there any controversy ripe for adjudication. The natural consequences of making a classification in accordance with law may not be used by private respondent in arguing that the questioned circular is in fact adjudicatory in nature. Such an exercise in driving home a point is illogical as it is fallacious and misplaced. 4.ID.; ID.; ID.; ID.; ID.; NOT VIOLATIVE OF THE EQUAL PROTECTION CLAUSE OF THE CONSTITUTION. Private respondent anchors its claim of violation of its equal protection rights upon the too obvious fact that only its cigarette brands, i.e., "Hope," "More" and "Champion," are mentioned in the questioned circular. Because only the cigarettes that they manufacturer are enumerated in the questioned circular, private respondent proceeded to attack the same as being discriminatory against it. On the surface, private respondent seems to have a point there. A scrutiny of the questioned Circular, however, will show that it is undisputedly one of general application for all cigarettes that are similarly situated as private respondent's brands. The new interpretation of Section 142 (1) (c)has been well illustrated in its application upon private respondent's brands, which illustration is properly a subject of the questioned Circular. Significantly, indicated as the subject of the questioned circular is the "reclassification of cigarettes subject to excise taxes." The reclassification resulted in the foregrounding of private respondent's cigarette brands, which incidentally is largely due to the controversy spawned no less by private respondent's own action of conveniently changing its brand names to avoid falling under a reclassification that would subject it to higher ad valorem tax rates. This caused then Commissioner Bienvenido Tan to depart from his initial determination that private respondent's cigarette brands are foreign brands. The consequent specific mention of such brands in the questioned Circular, does not change the fact that the questioned Circular has always been intended for and did cover, all cigarettes similarly situated as "Hope," "More" and "Champion." Petitioner is thus correct in stating that: ". . . RMC 37-93 is not discriminatory. It lays down the test in determining whether or not a locally manufactured cigarette bears a foreign brand using the cigarette brands 'Hope,' 'More' and 'Champion' as specific examples. Such test applies to all locally manufactured cigarette brands similarly situated as the cigarette brands aforementioned. While it is the true that only 'Hope,' 'More' and 'Champion' cigarettes are actually determined as locally manufactured cigarettes bearing a foreign brand, RMC 37-93 does not state that ONLY cigarettes fall under such classification to the exclusion of other cigarettes similarly situated. Otherwise stated, RMC 37-93 does not exclude the coverage of other cigarettes similarly situated. Otherwise stated,RMC 37-93 does not exclude the coverage of other cigarettes similarly situated as locally manufactured cigarettes bearing a foreign brand. Hence, in itself, RMC 37-93 is not discriminatory." Both the respondent Court of Appeals and the Court of Tax Appeals held that the questioned Circular reclassifying "Hope," "More" and "Champion" cigarettes, is defective, invalid and unenforceable and has rendered the assessment against private respondent of deficiency ad valorem excise taxes to be without legal basis. The majority agrees with private respondent and respondent Courts. As the foregoing opinion chronicles the fatal flaws in private respondent's arguments, it becomes more apparent that the questioned Circular is in fact a valid and substituting interpretative ruling that the petitioner had power to promulgate and enforce.

DECISION 45

VITUG, J :
p

The Commissioner of Internal Revenue ("CIR") disputes the decision, dated 31 March 1995, of respondent Court of Appeals 1 affirming the 10th August 1994 decision and the 11th October 1994 resolution of the Court of Tax Appeals 2 ("CTA") in C.T.A. Case No. 5015, entitled "Fortune Tobacco Corporation vs. Liwayway Vinzons-Chato in her capacity as Commissioner of Internal Revenue." The facts, by and large, are not in dispute. Fortune Tobacco Corporation ("Fortune Tobacco") is engaged in the manufacture of different brands of cigarettes. On various dates, the Philippine Patent Office issued to the corporation separate certificates of trademark registration over "Champion," "Hope," and "More" cigarettes. In a letter, dated 06 January 1987, of then Commissioner of Internal Revenue Bienvenido A. Tan, Jr., to Deputy Minister Ramon Diaz of the Presidential Commission on Good Government, "the initial position of the Commission was to classify 'Champion,' 'Hope,' and 'More' as foreign brands since they were listed in the World Tobacco Directory as belonging to foreign companies. However, Fortune Tobacco changed the names of 'Hope' to 'Luxury' and 'More' to 'Premium More', thereby removing the said brands from the foreign brand category. Proof was also submitted to the Bureau (of Internal Revenue ['BIR']) that 'Champion' was an original Fortune Tobacco Corporation register and therefore a local brand." 3 Ad Valorem taxes were imposed on these brands, 4 at the following rates:

"BRANDAD VALOREM TAX RATE E.O. 22andE.O. 273RA 6956 06-23-8607-25-8706-18-90 07-01-8601-01-8807-05-90 Hope Luxury M. 100's Sec. 142, (c), (2)40%45% Hope Luxury M. King Sec. 142, (c), (2)40%45% More Premium M. 100's Sec. 142, (c) (2)40%45% More Premium International Sec. 142, (c), (2)40%45% Champion Int'l. M. 100's Sec. 142, (c), (2)40%45% Champion M. 100's

46

Sec. 142, (c), (2)40%45% Champion M. King Sec. 142, (c), last par.15%20% Champion Lights Sec. 142, (c), last par.15%20%"
5

A bill, which later became Republic Act ("RA") No. 7654, 6 was enacted, on 10 June 1993, by the legislature and signed into law, on 14 June 1993, by the President of the Philippines. The new law became effective on 03 July 1993. It amended Section 142(c)(1) of the National Internal Revenue Code ("NIRC") to read; as follows:
"SEC. 142.Cigars and Cigarettes. "xxx xxx xxx "(c).Cigarettes packed by machine. There shall be levied, assessed and collected on cigarettes packed by machine a tax at the rates prescribed below based on the constructive manufacturer's wholesale price or the actual manufacturer's wholesale price, whichever is higher: "(1)On locally manufactured cigarettes which are currently classified and taxed at fifty-five percent (55%) or the exportation of which is not authorized by contract or otherwise, fifty-five (55%) provided that the minimum tax shall not be less than Five Pesos (P5.00) per pack. "(2).On other locally manufactured cigarettes, forty-five percent (45%) provided that the minimum tax shall not be less than Three Pesos (P3.00) per pack. xxx xxx xxx "When the registered manufacturer's wholesale price or the actual manufacturer's wholesale price whichever is higher of existing brands of cigarettes, including the amounts intended to cover the taxes, of cigarettes packed in twenties does not exceed Four Pesos and eighty centavos (P4.80) per pack, the rate shall be twenty percent (20%)." 7 (Emphasis supplied.)

About a month after the enactment and two (2) days before the effectivity of RA 7654, Revenue Memorandum Circular No. 37-93 ("RMC 37-93"), was issued by the BIR the full text of which expressed:

"REPUBLIKA NG PILIPINAS KAGAWARAN NG PANANALAPI KAWANIHAN NG RENTAS INTERNAS July 1, 1993 REVENUE MEMORANDUM CIRCULAR NO. 37-93 SUBJECT:Reclassification of Cigarettes Subject to Excise Tax

47

TO:All Internal Revenue Officers and Others Concerned. In view of the issues raised on whether 'HOPE,' 'MORE' and 'CHAMPION' cigarettes which are locally manufactured are appropriately considered as locally manufactured cigarettes bearing a foreign brand, this Office is compelled to review the previous rulings on the matter. "Section 142(c)(1) National Internal Revenue Code, as amended by R.A. No. 6956, provides: "'On locally manufactured cigarettes bearing a foreign brand, fifty-five percent (55%) Provided, That this rate shall apply regardless of whether or not the right to use or title to the foreign brand was sold or transferred by its owner to the local manufacturer. Whenever it has to be determined whether or not a cigarette bears a foreign brand, the listing of brands manufactured in foreign countries appearing in the current World Tobacco Directory shall govern.' "Under the foregoing, the test for imposition of the 55% ad valorem tax on cigarettes is that the locally manufactured cigarettes bear a foreign brand regardless of whether or not the right to use or title to the foreign brand was sold or transferred by its owner to the local manufacturer. The brand must be originally owned by a foreign manufacturer or producer. If ownership of the cigarette brand is, however, not definitely determinable, '. . . the listing of brands manufactured in foreign countries appearing in the current World Tobacco Directory shall govern. . . . ' "'HOPE' is listed in the World Tobacco Directory as being manufactured by (a) Japan Tobacco, Japan and (b) Fortune Tobacco, Philippines. 'MORE' is listed in the said directory as being manufactured by: (a) Fills de Julia Reig, Andorra; (b) Rothmans, Australia; (c) RJR-Macdonald, Canada; (d) RettigStrenberg, Finland; (e) Karellas, Greece; (f) R.J. Reynolds, Malaysia; (g) Rothmans, New Zealand; (h) Fortune Tobacco, Philippines;(i) R.J. Reynolds, Puerto Rico; (j) R.J. Reynolds, Spain; (k) Tabacalera, Spain; (l) R.J. Reynolds, Switzerland; and (m) R.J. Reynolds, USA. 'Champion' is registered in the said directory as being manufactured by (a) Commonwealth Bangladesh; (b) Sudan, Brazil; (c) Japan Tobacco, Japan; (d) Fortune Tobacco, Philippines; (e) Haggar, Sudan; and (f) Tabac Reunies, Switzerland. "Since there is no showing who among the above-listed manufacturers of the cigarettes bearing the said brands are the real owner/s thereof, then it follows that the same shall be considered foreign brand for purposes of determining the ad valorem tax pursuant to Section 142 of the National Internal Revenue Code. As held in BIR Ruling No. 410-88, dated August 24, 1988, 'in cases where it cannot be established or there is death of evidence as to whether a brand is foreign or not, resort to the World Tobacco Directory should be made.' "In view of the foregoing, the aforesaid brands of cigarettes, viz: 'HOPE,' 'MORE', and 'CHAMPION' being manufactured by Fortune Tobacco Corporation are hereby considered locally manufactured cigarettes bearing a foreign brand subject to the 55% ad valorem tax on cigarettes. "Any ruling inconsistent herewith is revoked or modified accordingly. (SGD) LIWAYWAY VINZONS-CHATO Commissioner"

On 02 July 1993, at about 17:50 hours, BIR Deputy Commissioner Victor A. Deoferio, Jr., sent via telefax a copy of RMC 37-93 to Fortune Tobacco but it was addressed to no one in particular. On 15 July 1993, Fortune Tobacco received, by ordinary mail, a certified xerox copy of RMC 37-93.

48

In a letter, dated 19 July 1993, addressed to the appellate division of the BIR, Fortune Tobacco, requested for a review, reconsideration and recall of RMC 37-93. The request was denied on 29 July 1993. The following day, or on 30 July 1993, the CIR assessed Fortune Tobacco for ad valorem tax deficiency amounting to P9,598,334.00. On 03 August 1993, Fortune Tobacco filed a petition for review with the CTA.
8

On 10 August 1994, the CTA upheld the position of Fortune Tobacco and adjudged:
"WHEREFORE, Revenue Memorandum Circular No. 37-93 reclassifying the brands of cigarettes, viz: 'HOPE,' 'MORE,' and 'CHAMPION' being manufactured by Fortune Tobacco Corporation as locally manufactured cigarettes bearing a foreign brand subject to the 55% ad valorem tax on cigarettes is found to be defective, invalid and unenforceable, such that when R.A. No. 7654 took effect on July 3, 1993, the brands in question were not CURRENTLY CLASSIFIED AND TAXED at 55% pursuant to Section 1142(c)(1) of the Tax Code, as amended by R.A. No. 7654 and were therefore still classified as other locally manufactured cigarettes and taxed at 45% or 20% as the case may be. "Accordingly, the deficiency ad valorem tax assessment issued on petitioner Fortune Tobacco Corporation in the amount of P9,598,334.00, exclusive of surcharge and interest, is hereby canceled for lack of legal basis. "Respondent Commissioner of Internal Revenue is hereby enjoined from collecting the deficiency tax assessment made and issued on petitioner in relation to the implementation of RMC No. 37-93. "SO ORDERED."
9

In this resolution, dated 11 October 1994, the CTA dismissed for lack of merit the motion for reconsideration.

dctai

The CIR forthwith filed a petition for review with the Court of Appeals, questioning the CTA's 10th August 1994 decision and 11th October 1994 resolution. On 31 March 1993, the appellate court's Special Thirteenth Division affirmed in all respects the assailed decision and resolution. In the instant petition, the Solicitor General argues: That
"I.RMC 37-93 IS A RULING OR OPINION OF THE COMMISSIONER OF INTERNAL REVENUE INTERPRETING THE PROVISIONS OF THE TAX CODE. "II.BEING AN INTERPRETATIVE RULING OR OPINION, THE PUBLICATION OF RMC 37-93, FILING OF COPIES THEREOF WITH THE UP LAW CENTER AND PRIOR HEARING ARE NOT NECESSARY TO ITS VALIDITY, EFFECTIVITY AND ENFORCEABILITY. "III.PRIVATE RESPONDENT IS DEEMED TO HAVE BEEN NOTIFIED OR RMC 37-93 ON JULY 2, 1993. "IV.RMC 37-93 IS NOT DISCRIMINATORY SINCE IT APPLIES TO ALL LOCALLY MANUFACTURED CIGARETTES SIMILARLY SITUATED AS 'HOPE,' 'MORE,' AND 'CHAMPION' CIGARETTES.

"V.PETITIONER WAS NOT LEGALLY PROSCRIBED FROM RECLASSIFYING 'HOPE,' 'MORE', AND 'CHAMPION' CIGARETTES BEFORE THE EFFECTIVITY OF R.A. NO. 7654.

49

"VI.SINCE RMC 37-93 IS AN INTERPRETATIVE RULE, THE INQUIRY IS NOT INTO ITS VALIDITY, EFFECTIVITY OR ENFORCEABILITY BUT INTO ITS CORRECTNESS OR PROPRIETY; RMC 37-93 IS CORRECT." 10

In fine, petitioner opines that RMC 37-93 is merely an interpretative ruling of the BIR which can thus become effective without any prior need for notice and hearing, nor publication, and that its issuance is not discriminatory since it would apply under similar circumstances to all locally manufactured cigarettes. The Court must sustain both the appellate court and the tax court. Petitioner stresses on the wide and ample authority of the BIR in the issuance of rulings for the effective implementation of the provisions of the National Internal Revenue Code. Let it be made clear that such authority of the Commissioner is not here doubted. Like any other government agency, however, the CIR may not disregard legal requirements or applicable principles in the exercise of its quasi-legislative powers. Let us first distinguish between two kinds of administrative issuances a legislative rule and an interpretative rule. In Misamis Oriental Association of Coco Traders, Inc., vs. Department of Finance Secretary, Court expressed:
". . . a legislative rule is in the nature of subordinate legislation, designed to implement a primary connection, the Administrative Code of 1987 provides:
11

the

legislation by providing the details thereof. In the same way that laws must have the benefit of public hearing, it is generally required that before a legislative rule is adopted there must be hearing. In this
"Public Participation. If not otherwise required by law, an agency shall, as far as practicable, publish or circulate notices of proposed rules and afford interested parties the opportunity to submit their views prior to the adoption of any rule. "(2)In the fixing of rates, no rule or final order shall be valid unless the proposed rates shall have been published in a newspaper of general circulation at least two (2) weeks before the first hearing thereon. "(3)In case of opposition, the rules on contested cases shall be observed. "In addition such rule must be published. On the other hand, interpretative rules are designed to provide guidelines to the law which the administrative agency is in charge of enforcing." 12

It should be understandable that when an administrative rule is merely interpretative in nature, its applicability needs nothing further than its bare issuance for it gives no real consequence more than what the law itself has already prescribed. When, upon the other hand, the administrative rule goes beyond merely providing for the means that can facilitate or render least cumbersome the implementation of the law but substantially adds to or increases the burden of those governed, it behooves the agency to accord at least to those directly affected a chance to be heard, and thereafter to be duly informed, before that new issuance is given the force and effect of law. A reading of RMC 37-93, particularly considering the circumstances under which it has been issued, convinces us that the circular cannot be viewed simply as a corrective measure (revoking in the process the previous holdings of past Commissioners) or merely as construing Section 142(c)(1) of the NIRC, as amended, but has, in fact and most importantly, been made in order to place "Hope Luxury," "Premium More" and "Champion" within the classification of locally manufactured cigarettes bearing foreign brands and to thereby have them covered by RA 7654. Specifically, the new law would have its amendatory provisions applied to locally 50

manufactured cigarettes which at the time of its effectivity were not so classified as bearing foreign brands. Prior to the issuance of the questioned circular, "Hope Luxury," "Premium More," and "Champion" cigarettes were in the category of locally manufactured cigarettes not bearing foreign brand subject to 45% ad valoremtax. Hence, without RMC 37-93, the enactment of RA 7654, would have had no new tax rate consequence on private respondent's products. Evidently, in order to place "Hope Luxury," "Premium More," and "Champion" cigarettes within the scope of the amendatory law and subject them to an increased tax rate, the now disputed RMC 37-93 had to be issued. In so doing, the BIR not simply interpreted the law; verily, it legislated under it quasi-legislative authority. The due observance of the requirements of notice, of hearing, and of publication should not have been then ignored. Indeed, the BIR itself, in its RMC 10-86, has observed and provided:
"RMC NO. 10-86 Effectivity of Internal Revenue Rules and Regulations "It has been observed that one of the problem areas bearing on compliance with Internal Revenue Tax rules and regulations is lack or insufficiency of due notice to the tax paying public. Unless there is due notice, due compliance therewith may not be reasonably expected. And most importantly, their strict enforcement could possibly suffer from legal infirmity in the light of the constitutional provision on due process of law' and the essence of the Civil Code provision concerning effectivity of laws, whereby due notice is a basic requirement (Sec. 1, Art. IV, Constitution; Art. 2, New Civil Code). "In order that there shall be a just enforcement of rules and regulations, in conformity with the basic element of due process, the following procedures are hereby prescribed for the drafting, issuance and implementation of the said Revenue Tax Issuances: "(1).Tax Circular shall apply only to (a) Revenue Regulations; (b) Revenue Audit Memorandum Orders; and (c) Revenue Memorandum Circularsand Revenue Memorandum Orders bearing on internal revenue tax rules and regulations. "(2).Except when the law otherwise expressly provides, the aforesaid internal revenue tax issuances shall not begin to be operative until after due notice thereof may be fairly presumed. "Due notice of the said issuances may be fairly presumed only after the following procedures have been taken: xxx xxx xxx "(5).Strict compliance with the foregoing procedures is enjoined."
13

Nothing on record could tell us that it was either impossible or impracticable for the BIR to observe and comply with the above requirements before giving effect to its questioned circular. Not insignificantly, RMC 37-93 might have likewise infringed on uniformity of taxation. Article VI, Section 28, paragraph 1, of the 1987 Constitution mandates taxation to be uniform and equitable. Uniformity requires that all subjects or objects of taxation, similarly situated, are to be treated alike or put on equal footing both in privileges and liabilities. 14 Thus, all taxable articles or kinds of property of the same class must be taxed at the same rate 15 and the tax must operate with the same force and effect in every place where the subject may be found.

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Apparently, RMC 37-93 would only apply to "Hope Luxury," Premium More" and "Champion" cigarettes and, unless petitioner would be willing to concede to the submission of private respondent that the circular should, as in fact my esteemed colleague Mr. Justice Bellosillo so expresses in his separate opinion, be consideredadjudicatory in nature and thus violative of due process following the Ang Tibay 16 doctrine, the measure suffers from lack of uniformity of taxation. In its decision, the CTA has keenly noted that other cigarettes bearing foreign brands have not been similarly included within the scope of the circular, such as :
"1.Locally manufactured by ALHAMBRA INDUSTRIES, INC. (a)'PALM TREE' is listed as manufactured by office of Monopoly, Korea (Exhibit 'R') "2.Locally manufactured by LA SUERTE CIGAR and CIGARETTE COMPANY (a)'GOLDEN KEY' is listed being manufactured by United Tobacco, Pakistan (Exhibit 'S') (b)'CANNON' is listed as being manufactured by Alpha Tobacco, Bangladesh (Exhibit 'T') "3.Locally manufactured by LA PERLA INDUSTRIES, INC. (a)'WHITE HORSE' is listed as being manufactured by Rothmans, Malaysia (Exhibit 'U') (b)'RIGHT' is listed as being manufactured by SVENSKA, Tobaks, Sweden (Exhibit 'V-1') "4.Locally manufactured by MIGHTY CORPORATION (a)'WHITE HORSE' is listed as being manufactured by Rothman's, Malaysia (Exhibit 'U-1') "5.Locally manufactured by STERLING TOBACCO CORPORATION (a)'UNION' is listed as being manufactured by Sumatra Tobacco, Indonesia and Brown and Williamson, USA (Exhibit 'U-3') (b)'WINNER' is listed as being manufactured by Alpha Tobacco, Bangladesh; Nanyang, Hongkong; Joo Lan, Malaysia; Pakistan Tobacco Co., Pakistan; Premier Tobacco, Pakistan and Haggar, Sudan (Exhibit '(U-4')." 17

The court quoted at length from the transcript of the hearing conducted on 10 August 1993 by the Committee on Ways and Means of the House of Representatives;viz:
"THE CHAIRMAN. So you have specific information on Fortune Tobacco alone. You don't have specific information on other tobacco manufacturers. Now, there are other brands which are similarly situated. They are locally manufactured bearing foreign brands. And may I enumerate to you all these brands, which are also listed in the World Tobacco Directory . . . . Why were these brands not reclassified at 55 if your want to give a level playing field to foreign manufacturers? "MS. CHATO. Mr. Chairman, in fact, we have already prepared a Revenue Memorandum Circular that

was supposed to come after RMC No. 37-93 which have really named specifically the list of locally manufactured cigarettes bearing a foreign brand for excise tax purposes and includes all these brands that you mentioned at 55 percent except that at that time, when we had to come up with this, we were
forced to study the brands of Hope, More and Champion because we were given documents that would indicate the that these brands were actually being claimed or patented in other countries because we went by Revenue Memorandum Circular 1488 and we wanted to give some rationality to how it came about but we couldn't find the rationale there. And we really found based on our own interpretation

52

that the only test that is given by that existing law would be registration in the World Tobacco Directory. So we came out with this proposed revenue memorandum circular which we forwarded to the Secretary of Finance except that at that point in time, we went by the Republic Act 7654 in Section 1 which amended Section 142, C-1, it said, that on locally manufactured cigarettes which are currently classified and taxed at 55 percent. So we were saying that when this law took effect in July 3 and if we

are going to come up with this revenue circular thereafter, then I think our action would really be subject to question but we feel that . . . Memorandum Circular Number 37-93 would really cover even similarly situated brands. And in fact, it was really because of the study, the short time that we were given to study the matter that we could not include all the rest of the other brands that would have been really classified as foreign brand if we went by the law itself. I am sure that by the reading of the
law, you would without that ruling by Commissioner Tan they would really have been included in the definition or in the classification of foregoing brands. These brands that you referred to or just read to us and in fact just for your information, we really came out with a proposed revenue memorandum circular for those brands. (Emphasis supplied)

"Exhibit 'FF-2-C,' pp. V-5 TO V-6, VI-1 to VI-3). "xxx xxx xxx "MS. CHATO, . . . But I do agree with you now that it cannot and in fact that is why I felt that we . . . I

wanted to come up with a more extensive coverage and precisely why I asked that revenue memorandum circular that would cover all those similarly situated would be prepared but because of the lack of time and I came out with a study of RA 7654, it would not have been possible to really come up with the reclassification or the proper classification of all brands that are listed there . . . .'
(emphasis supplied) (Exhibit 'FF-2d', page IX-1) "xxx xxx xxx "HON. DIAZ. But did you not consider that there are similarly situated?

"MS. CHATO. That is precisely why, Sir, after we have come up with this Revenue Memorandum Circular No. 37-93, the other brands came about the would have also clarified RMC 37-93 by I was saying really because of the fact that I was just recently appointed and the lack of time, the period that was allotted to us to come up with the right actions on the matter, we were really caught by the July 3 deadline. But in fact, We have already prepared a revenue memorandum circular clarifying with the

other. . . does not yet, would have been a list of locally manufactured cigarettes bearing a foreign brand for excise tax purposes which would included all the other brands that were mentioned by the Honorable Chairman. (Emphasis supplied) (Exhibit 'FF-2-d,' par. IX-4)." 18

All taken, the Court is convinced that the hastily promulgated RMC 37-93 has fallen short of a valid and effective administrative issuance. WHEREFORE, the decision of the Court of Appeals, sustaining that of the Court of Tax Appeals, is AFFIRMED. No costs. SO ORDERED.

Bellosillo and Kapunan, JJ ., concur.

53

[G.R. No. L-59234. September 30, 1982.] TAXICAB OPERATORS OF METRO MANILA, INC., FELICISIMO CABIGAO and ACE TRANSPORTATION CORPORATION, petitioners, vs.THE BOARD OF TRANSPORTATION and THE DIRECTOR OF THE BUREAU OF LAND TRANSPORTATION, respondents.

Mariano P. Brion, Jr. for petitioners. The Solicitor General for respondents.
SYNOPSIS Petitioners who are taxicab operators assail the constitutionality of Memorandum Circular No. 77-42 issued by the Board of Transportation (BOT) providing for the phasing out and replacement of old and dilapidated taxicabs; as well as Implementing Circular No. 52 issued pursuant thereto by the Bureau of Land Transportation (BLT) instructing personnel of the BLT within the National Capital Region to implement the said BOT Circular, and formulating a schedule of phase-out of vehicles to be allowed and accepted for registration as public conveyances. Petitioners allege that the questioned Circulars did not afford them procedural and substantive due process, equal protection of the law, and protection against arbitrary and unreasonable classification and standard. Among others, they question the issuance of the Circulars without first calling them to a conference or requiring them to submit position papers or other documents enforceability thereof only in Metro Manila; and their being applicable only to taxicabs and not to other transportation services. The Supreme Court held that there was no denial of due process since calling the taxicab operators or persons who may be affected by the questioned Circulars to a conference or requiring them to submit position papers or other documents is only one of the options open to the BOT which is given wide discretionary authority under P.D. No. 101; and fixing a six- year ceiling for a car to be operated as taxicab is a reasonable standard adopted to apply to all vehicles affected uniformly, fairly, and justly. The Court also ruled that neither has the equal protection clause been violated by initially enforcing the Circulars only in Metro Manila since it is of common knowledge that taxicabs in this city, compared to those of other places, are subjected to heavier traffic pressure and more constant use, thus making for a substantial distinction; nor by non-application of the Circulars to other transportation services because the said Circulars satisfy the criteria required under the equal protection clause, which is the uniform operation by legal means so that all persons under identical or similar circumstances would be accorded the same treatment both in privilege conferred and the liabilities imposed. SYLLABUS 1.CONSTITUTIONAL LAW; CONSTITUTIONALITY OF LAWS; MEMORANDUM CIRCULAR PROVIDING FOR PHASING-OUT AND REPLACEMENT OF OLD AND DILAPIDATED TAXICABS; ISSUANCE NOT VIOLATIVE OF DUE PROCESS; CALLING TAXICAB OPERATORS TO CONFERENCE OR REQUIRING SUBMISSION OF POSITION PAPERS OR DOCUMENTS, ONLY ONE OF OPTIONS GIVEN TO BOARD OF TRANSPORTATION IN FORMULATING POLICIES. It is clear from the provision of Section 2 of P.D. 101 aforequoted, that the leeway accorded the Board gives it a wide range of choice in gathering necessary information or data in the formulation of any policy, plan or program. It is not mandatory that it should first call a conference or require the submission of position papers or other documents from operators or persons who maybe affected, this being only one of the options open to the Board, which is given wide discretionary authority. Petitioners 54

cannot justifiably claim, therefore, that they were deprived of procedural due process. Neither can they state with certainty that public respondents had not availed of other sources of inquiry prior to issuing the challenged Circulars. Operators of public conveyances are not the only primary sources of the data and information that may be desired by the BOT. 2.ID.; ID.; ID.; ID.; PUBLIC HEARING, NOT A DUE PROCESS REQUIREMENT. Dispensing with a public hearing prior to the issuance of the Circulars is neither violative of procedural due process. As held in Central Bank vs. Hon. Cloribel and Banco Filipino, 44 SCRA 307(1972); "Previous notice and hearing as elements of due process, are constitutionally required for the protection of life or vested property rights, as well as of liberty, when its limitations or loss takes place in consequence of a judicial or quasi-judicial proceedings, generally dependent upon a past act or even which has to be established or ascertained. It is nor essential to the validity of general rules or regulations promulgated to govern future conduct of a class or persons or enterprises, unless the law provides otherwise.'' 3.ID.; ID.; ID.; ID.; SIX-YEAR CEILING FOR CARS TO OPERATE AS TAXICAB, MEETS DUE PROCESS REQUIREMENT FOR SUPPLYING REASONABLE STANDARD. Petitioners farther take the position that fixing the ceiling at six (6) years is arbitrary and oppressive because of roadworthiness of taxicabs depends upon their kind of maintenance and the use to which they are subjected, and, therefore, their actual physical condition should be taken into consideration at the time of registration. As public respondents contend, however, it is impractical to subject every taxicab to constant and recurring evaluation, not to speak of the fact that it can open the door to the adoption of multiple standards, possible collusion, and evens graft and corruption. A reasonable standard must be adopted to apply to all vehicles affected uniformly, fairly , and justly, The span of six years supplies that reasonable standard. The product of experience shows that by that time taxis have fully depreciated, their cost recovered, and a fair return on investment obtained. 4.ID.; ID.; ID.; ISSUANCE NOT VIOLATIVE OF EQUAL PROTECTION CLAUSE; ENFORCING CIRCULAR INITIALLY IN METRO MANILA ONLY. At the outset it should be pointed out that implementation outside Metro Manila is also envisioned in Memorandum Circular No. 77-42. The Board's reason for enforcing the Circular initially in Metro Manila is that taxicabs in this city, compared to those of other places, are subjected to heavier traffic pressure and more constant use. This is of common knowledge. Considering that traffic conditions are not the same in every city, a substantial distinction exist so that infringement of the equal protection clause can hardly be successfully claimed. 5.ID.; ID.; ID.; ID.; ID.; A VALID EXERCISE OF POLICE POWER. As enunciated in the preambular clauses of the challenged BOT Circular, the overriding consideration is the safety and comfort of the riding public from the dangers posed by old and dilapidated taxis. The State, in the exercise of its police power, can prescribe regulations to promote the health, morals, peace, good order, safety and general welfare of the people. It can prohibit all things hurtful to comfort, safety and welfare of society. (Edu vs. Ericta, 35 SCRA 48 [1970]. It may also regulate property rights. (Samson vs. Mayor of Bacolod City, 60 SCRA 267 [1974]. In the language of Chief Justice Enrique M. Fernando "the necessities imposed by public welfare may justify the exercise of governmental authority to regulate even if thereby certain groups may plausibly assert that their interests are disregarded". (The Constitution of the Philippines, Second Edition, p. 548.) 6.ID.; ID.; ID.; ID.; NONE APPLICATION TO OTHER TRANSPORTATION SERVICES. In so far as the nonapplication of the assailed Circulars to other transportation services is concerned, it need only be recalled that the equal protection clause does not imply that the same treatment be accorded all and sundry. It applies to things or persons identically or similarly situated. It permits of classification of the object or subject of the law provided classification is reasonable or based on substantial distinction, which make for real differences, and that it must apply equally to each member of the class. (People vs. Vera, 65 Phil. 56; People vs. Cayat, 68 Phil. 12; Central Bank vs. Cloribel, 44 SCRA 307 [1972]; Anucension vs. National Labor Union, 80 SCRA 350 [1977] citing Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54 [1974] & Basa vs. Federacion Obrera de la 55

Industria Tabaquera y Otros Trabajadores de Filipinas, 61 SCRA 93 [1974]). What is required under the equal protection clause is the uniform operation by legal means so that all persons under identical or similar circumstance would be accorded the same treatment both in privilege conferred and the liabilities imposed. (Gumabon vs. Director of Prisons, 37 SCRA 420 [1971]). The challenged Circulars satisfy the foregoing criteria. 7.ID., ID., DECLARATION OF UNCONSTITUTIONALITY REQUIRES CLEAR AND CATEGORICAL INFRINGEMENT OF RIGHT. Evident then is the conclusion that the questioned Circulars do not suffer from any constitutional infirmity. To declare a law unconstitutional, the infringement of constitutional right must be clear, categorical and undeniable.

DECISION

MELENCIO-HERRERA, J :
p

This Petition for "Certiorari, Prohibition and Mandamus with Preliminary Injunction and Temporary Restraining Order" filed by the Taxicab Operators of Metro Manila, Inc., Felicisimo Cabigao and Ace Transportation, seeks to declare the nullity of Memorandum Circular No. 77-42, dated October 10, 1977, of the Board of Transportation, and Memorandum Circular No. 52, dated August 16, 1980, of the Bureau of Land Transportation. Petitioner Taxicab Operators of Metro Manila, Inc. (TOMMI) is a domestic corporation composed of taxicab operators, who are grantees of Certificates of Public Convenience to operate taxicabs within the City of Manila and to any other place in Luzon accessible to vehicular traffic. Petitioners Ace Transportation Corporation and Felicisimo Cabigao are two of the members of TOMMI, each being an operator and grantee of such certificate of public convenience. On October 10, 1977, respondent Board of Transportation (BOT) issued Memorandum Circular No. 77-42 which reads:

SUBJECT: Phasing out and Replacement of Old and Dilapidated Taxis "WHEREAS, it is the policy of the government to insure that only safe and comfortable units are used as public conveyances; WHEREAS, the riding public, particularly in Metro-Manila, has, time and again, complained against, and condemned, the continued operation of old and dilapidated taxis; WHEREAS, in order that the commuting public may be assured of comfort, convenience, and safety, a program of phasing out of old and dilapidated taxis should be adopted; WHEREAS, after studies and inquiries made by the Board of Transportation, the latter believes that in six years of operation, a taxi operator has not only covered the cost of his taxis, but has made reasonable profit for his investments;

56

NOW, THEREFORE, pursuant to this policy, the Board hereby declares that no car beyond six years shall be operated as taxi, and in implementation of the same hereby promulgates the following rules and regulations: 1.As of December 31, 1977, all taxis of Model 1971 and earlier are ordered withdrawn from public service and thereafter may no longer be registered and operated as taxis. In the registration of cards for 1978, only taxis of Model 1972 and later shall be accepted for registration and allowed for operation; 2.As of December 31, 1978, all taxis of Model 1972 are ordered withdrawn from public service and thereafter may no longer be registered and operated as taxis. In the registration of cars for 1979, only taxis of Model 1973 and later shall be accepted for registration and allowed for operation; and every year thereafter, there shall be a six-year lifetime of taxi, to wit: 1980 Model 1974 1981 Model 1975, etc. All taxis of earlier models than those provided above are hereby ordered withdrawn from public service as of the last day of registration of each particular year and their respective plates shall be surrendered directly to the Board of Transportation for subsequent turnover to the Land Transportation Commission. For an orderly implementation of this Memorandum Circular, the rules herein shall immediately be effective in Metro-Manila. Its implementation outside Metro Manila shall be carried out only after the project has been implemented in Metro Manila and only after the date has been determined by the Board." 1

Pursuant to the above BOT circular, respondent Director of the Bureau of Land Transportation (BLT) issued Implementing Circular No. 52, dated August 15, 1980, instructing the Regional Director, the MV Registrars and other personnel of BLT, all within the National Capitol Region, to implement said Circular, and formulating a schedule of phase-out of vehicles to be allowed and accepted for registration as public conveyances. To quote said Circular:
"Pursuant to BOT Memo Circular No. 77-42, taxi units with year models over six (6) years old are now banned from operating as public utilities in Metro Manila. As such the units involved should be considered as automatically dropped as public utilities and, therefore, do not require any further dropping order from the BOT. "Henceforth, taxi units within the National Capitol Region having year models over 6 years old shall be refused registration. The following schedule of phase-out is herewith prescribed for the guidance of all concerned: "Year ModelAutomatic Phase-Out Year 1980 19741981 19751982 19761983 1977 etc.etc. Strict compliance here is desired."
2

In accordance therewith, cabs of model 1971 were phase-out in registration year 1978; those of model 1972, in 1979; those of model 1973, in 1980; and those of model 1974, in 1981. 57

On January 27, 1981, petitioners filed a Petition with the BOT, docketed as Case No. 80-7553, seeking to nullify MC No. 77-42 or to stop its implementation; to allow the registration and operation in 1981 and subsequent years of taxicabs of model 1974, as well as those of earlier models which were phased-out, provided that, at the time of registration, they are roadworthy and fit for operation. On February 16, 1981, petitioners filed before the BOT a "Manifestation and Urgent Motion", praying for an early hearing of their petition. The case was heard on February 20, 1981. Petitioners presented testimonial and documentary evidence, offered the same, and manifested that they would submit additional documentary proofs. Said proofs were submitted on March 27, 1981 attached to petitioners' pleading entitled, "Manifestation, Presentation of Additional Evidence and Submission of the Case for Resolution." 3 On November 28, 1981, petitioners filed before the same Board a "Manifestation and Urgent Motion to Resolve or Decide Main Petition" praying that the case be resolved or decided not later than December 10, 1981 to enable them, in case of denial, to avail of whatever remedy they may have under the law for the protection of their interests before their 1975 model cabs are phased-out on January 1, 1982. Petitioners, through its President, allegedly made personal follow-ups of the case, but was later informed that the records of the case could not be located. On December 29, 1981, the present Petition was instituted wherein the following queries were posed for consideration by this Court:
"A.Did BOT and BLT promulgate the questioned memorandum circulars in accord with the manner required by Presidential Decree No. 101, thereby safeguarding the petitioners' constitutional right to procedural due process? B.Granting arguendo, that respondents did comply with the procedural requirements imposed by Presidential Decree No. 101, would the implementation and enforcement of the assailed memorandum circulars violate the petitioners' constitutional rights to. (1)Equal protection of the law; (2)Substantive due process; and (3)Protection against arbitrary and unreasonable classification and standard?

On Procedural and Substantive Due Process:

Presidential Decree No. 101 grants to the Board of Transportation the power
"4.To fix just and reasonable standards, classification, regulations, practices, measurements, or service to be furnished, imposed, observed, and followed by operators of public utility motor vehicles."

Section 2 of said Decree provides procedural guidelines for said agency to follow in the exercise of its powers:
"Sec. 2.Exercise of powers. In the exercise of the powers granted in the preceding section, the Board shall proceed promptly along the method of legislative inquiry. Apart from its own investigation and studies, the Board, in its discretion, may require the cooperation and assistance of the Bureau of Transportation, the Philippine Constabulary, particularly the Highway Patrol Group, the support agencies within the Department of Public Works, Transportation and Communications, or any other government office or agency that may be able to furnish useful

58

information or data in the formulation of the Board of any policy, plan or program in the implementation of this Decree. The Board may also call conferences, require the submission of position papers or other documents, information, or data by operators or other persons that may be affected by the implementation of this Decree, or employ any other suitable means of inquiry. "

In support of their submission that they were denied procedural due process, petitioners contend that they were not called upon to submit their position papers, nor were they ever summoned to attend any conference prior to the issuance of the questioned BOT Circular. It is clear from the provision aforequoted, however, that the leeway accorded the Board gives it a wide range of choice in gathering necessary information or data in the formulation of any policy, plan or program. It is not mandatory that it should first call a conference or require the submission of position papers or other documents from operators or persons who may be affected, this being only one of the options open to the Board, which is given wide discretionary authority. Petitioners cannot justifiably claim, therefore, that they were deprived of procedural due process. Neither can they state with certainty that public respondents had not availed of other sources of inquiry prior to issuing the challenged Circulars Operators of public conveyances are not the only primary sources of the data and information that may be desired by the BOT. Dispensing with a public hearing prior to the issuance of the Circulars is neither violative of procedural due process. As held in Central Bank vs. Hon. Cloribel and Banco Filipino, 44 SCRA 307 (1972):
"Previous notice and hearing as elements of due process, are constitutionally required for the protection of life or vested property rights, as well as of liberty, when its limitation or loss takes place in consequence of a judicial or quasi-judicial proceeding, generally dependent upon a past act or event which has to be established or ascertained. It is not essential to the validity of general rules or regulations promulgated to govern future conduct of a class or persons or enterprises, unless the law provides otherwise." (Emphasis supplied)

Petitioners further take the position that fixing the ceiling at six (6) years is arbitrary and oppressive because the road-worthiness of taxicabs depends upon their kind of maintenance and the use to which they are subjected, and, therefore, their actual physical condition should be taken into consideration at the time of registration. As public respondents contend, however, it is impractical to subject every taxicab to constant and recurring evaluation, not to speak of the fact that it can open the door to the adoption of multiple standards, possible collusion, and even graft and corruption. A reasonable standard must be adopted to apply to all vehicles affected uniformly, fairly, and justly. The span of six years supplies that reasonable standard. The product of experience shows that by that time taxis have fully depreciated, their cost recovered, and a fair return on investment obtained. They are also generally dilapidated and no longer fit for safe and comfortable service to the public specially considering that they are in continuous operation practically 24 hours everyday in three shifts of eight hours per shift. With that standard of reasonableness and absence of arbitrariness, the requirement of due process has been met.

On Equal Protection of the Law:

Petitioners alleged that the Circular in question violates their right to equal protection of the law because the same is being enforced in Metro Manila only and is directed solely towards the taxi industry. At the outset it should be pointed out that implementation outside Metro Manila is also envisioned in Memorandum Circular No. 77-42. To repeat the pertinent portion: 59

"For an orderly implementation of this Memorandum Circular, the rules herein shall immediately be effective in Metro Manila. Its implementation outside Metro Manila shall be carried out only after the project has been implemented in Metro Manila and only after the date has been determined by the Board." 4

In fact, it is the understanding of the Court that implementation of the Circulars in Cebu City is already being effected, with the BOT in the process of conducting studies regarding the operation of taxicabs in other cities. The Board's reason for enforcing the Circular initially in Metro Manila is that taxicabs in this city, compared to those of other places, are subjected to heavier traffic pressure and more constant use. Thus is of common knowledge. Considering that traffic conditions are not the same in every city, a substantial distinction exists so that infringement of the equal protection clause can hardly be successfully claimed. As enunciated in the preambular clauses of the challenged BOT Circular, the overriding consideration is the safety and comfort of the riding public from the dangers posed by old and dilapidated taxis. The State, in the exercise of its police power, can prescribe regulations to promote the health, morals, peace, good order, safety and general welfare of the people. It can prohibit all things hurtful to comfort, safety and welfare of society. 5 It may also regulate property rights. 6 In the language of Chief Justice Enrique M. Fernando "the necessities imposed by public welfare may justify the exercise of governmental authority to regulate even if thereby certain groups may plausibly assert that their interests are disregarded". 7 In so far as the non-application of the assailed Circulars to other transportation services is concerned, it need only be recalled that the equal protection clause does not imply that the same treatment be accorded all and sundry. It applies to things or persons identically or similarly situated. It permits of classification of the object or subject of the law provided classification is reasonable or based on substantial distinction, which make for real differences, and that it must apply equally to each member of the class. 8 What is required under the equal protection clause is the uniform operation by legal means so that all persons under identical or similar circumstance would be accorded the same treatment both in privilege conferred and the liabilities imposed. 9 The challenged Circulars satisfy the foregoing criteria. Evident then is the conclusion that the questioned Circulars do not suffer from any constitutional infirmity. To declare a law unconstitutional, the infringement of constitutional right must be clear, categorical and undeniable. 10 WHEREFORE, the Writs prayed for are denied and this Petition is hereby dismissed. No costs. SO ORDERED.

Fernando, C.J., Barredo, Makasiar, Concepcion Jr., Guerrero, Abad Santos, De Castro, Plana, Escolin, Vasquez, Relova and Gutierrez, Jr., JJ., concur. Teehankee and Aquino, JJ., in the result.

[G.R. No. 9876. December 8, 1914.] THE UNITED STATES, plaintiff-appellee, vs. ADRIANO PANLILIO, defendant-appellant.

Pedro Abad Santos, for appellant.

60

Solicitor-General Corpus, for appellee.

SYLLABUS 1.ANIMALS; REMOVAL OF CARABAOS FROM QUARANTINE. Act No. 1760, entitled "An act to prevent the introduction into the Philippine Islands of dangerous communicable animal diseases, to prevent the spread of such diseases within the Islands, and for other purposes," does not punish the removal of carabaos, which had been exposed to a dangerous communicable disease, from a quarantine established on a portion of the premises of the accused, said carabaos having been simply removed from the corral in which they were quarantined and worked upon the adjoining lands of the accused, and they, at the time, not suffering from a dangerous communicable disease, or being recently imported, and the Secretary of the Interior not having made the declaration provided for in section 5 of that Act, and the said animals not having been driven or taken by the accused upon the highway, or from one island, province, municipality, township or settlement to another. 2.ID.; QUARANTINE REGULATIONS OF BUREAU OF AGRICULTURE. While Act No. 1760, entitled as aforesaid, authorizes the Director of Agriculture, among other things, "to require that animals which are suffering from dangerous communicable diseases or have been exposed thereto be placed in quarantine at such place and for such time as may be deemed by him necessary to prevent the spread of the disease," a violation of the orders of the Bureau of Agriculture made in pursuance of such authority will not be held to be criminal unless the statute expressly makes it so and provides a punishment. 3.ID.; ID.; VIOLATION OF. Said Act, although it authorizes the Director of Agriculture to do certain things, as aforesaid, nowhere makes a violation of the orders of the Bureau of Agriculture unlawful or criminal, nor does it provide a punishment for such violation. 4.ID.; ID.; ID. Although the Act provides that "any person violating any of the provisions of this Act shall, upon conviction, be punished by a fine of not more than one thousand pesos, or by imprisonment for not more than six months, or by both such fine and imprisonment, in the discretion of the court, for each offense," such provision is not broad enough to cover a violation of an order of the Bureau of Agriculture lawfully made and promulgated under the authority conferred upon said bureau by said Act, the violation of such an order not being a violation "of the provisions of this Act." 5.ID.; ID.; ID. Orders of the Bureau of Agriculture issued in pursuance of the authority conferred by Act No. 1760, while they have, in a sense, the force of law, are not penal statutes, and a violation of such orders is not a penal offense under said Act, the statute itself not expressly making it so. 6.CRIMINAL LAW; COMPLAINT; CONVICTION OF OFFENSE INCLUDED IN CHARGE. While the acts charged .in the information do not constitute a violation of any of the provisions of Act No. 1760, they do constitute a violation of article 581, paragraph 2, of the Penal Code, and, while the information charges that the acts set forth therein constitute a violation of Act No. 1760, the accused may be convicted of a violation of the Penal Code.

DECISION

MORELAND, J :
p

This is an appeal from a judgment of the Court of First Instance of the Province of Pampanga convicting the accused of a violation of the law relating to the quarantining of animals suffering from 61

dangerous communicable or contagious diseases and sentencing him to pay a fine of p40, with subsidiary imprisonment in case of insolvency, and to pay the costs of the trial. The information charges: "That on or about the 22d day of February, 1913, all of the carabaos belonging to the above-named accused having been exposed to the dangerous and contagious disease known as rinderpest, were, in accordance with an order of a duly-authorized agent of the Director of Agriculture, duly quarantined in a corral in the barrio of Masamat, municipality of Mexico, Province of Pampanga, P. I.; that, on said date and at said place, the said accused, Adriano Panlilio, illegally and voluntarily and without being authorized so to do, and while the quarantine against said carabaos was still in force, permitted and ordered said carabaos to be taken from the corral in which they were then quarantined and conducted from one place to another; that by virtue of said orders of the accused, his servants and agents took the said carabaos from the said corral and drove them from one place to another for the purpose of working them." The defendant demurred to this information on the ground that the acts complained of did not constitute a crime. The demurrer was overruled and the defendant duly excepted and pleaded not guilty. From the evidence introduced by the prosecution on the trial of the cause it appears that the defendant was notified in writing on February 22, 1913, by a duly authorized agent of the Director of Agriculture, that all of his carabaos in the barrio of Masamat, municipality of Mexico, Pampanga Province, had been exposed to the disease commonly known as rinderpest, and that said carabaos were accordingly declared under quarantine, and were ordered kept in a corral designated by an agent of the Bureau of Agriculture and were to remain there until released by further order of the Director of Agriculture. It further appears from the testimony of the witnesses. for the prosecution that the defendant fully understood that, according to the orders of the Bureau of Agriculture, he was not to remove the animals, or to permit anyone else to remove them, from the quarantine in which they had been placed. In spite, however, of all this, the carabaos were taken from the corral by the commands of the accused and driven from place to place on his hacienda, and were used as work animals thereon in the same manner as if they had not been quarantined. The contention of the accused is that the facts alleged in the information and proved on the trial do not constitute a violation of Act No. 1760 or any portion thereof. We are forced to agree with this contention. The original information against the accused charged a violation of section 6 of Act No. 1760 committed by the accused in that he ordered and permitted his carabaos, which, at the time, were in quarantine, to be taken from quarantine and moved from one place to another on his hacienda. An amended information was filed. It failed, however, to specify the section of Act No. 1760 alleged to have been violated, evidently leaving that to be ascertained by the court on the trial. The only sections of Act No. 1760 which prohibit acts and pronounce them unlawful are 3, 4 and 5. This case does not fall within any of them. Section 3 provides, in effect, that it shall be unlawful for any person, firm, or corporation knowingly to ship or otherwise bring into the Philippine Islands any animal suffering from, infected with, or dead of any dangerous communicable disease, or any of the effects pertaining to such animal which are liable to introduce such disease into the Philippine Islands. Section 4 declares, substantially, that it shall be unlawful for any person, firm, or corporation knowingly to ship, drive or otherwise take or transport from one island, province, municipality, township, or settlement to another any domestic animal suffering from any dangerous communicable disease or to expose such animal either alive or dead on any public road or highway where it may come in contact with other domestic animals. Section 5 provides that whenever the Secretary of the Interior shall declare that a dangerous communicable animal disease prevails in any island, province, municipality, township, or settlement and that there is danger of spreading such disease by shipping, driving or otherwise transporting or taking out of such island, province, municipality, township, or settlement any class of domestic animal, it shall be unlawful for any person, firm or corporation to ship, drive or otherwise remove the kind of animals so 62

specified from such locality except when accompanied by a certificate issued by authority of the Director of Agriculture stating the number and the kind of animals to be shipped, driven, taken or transported, their destination, manner in which they are authorized to be shipped, driven, taken, or transported, and their brands and distinguishing marks. A simple reading of these sections demonstrates clearly that the case at bar does not fall within any of them. There is no question here of importation and there is no charge or proof that the animals in question were suffering from a dangerous communicable disease or that the Secretary of the Interior had made the declaration provided for in section 5 or that the accused had driven or taken said animals from one island, province, municipality, township or settlement to another. It was alleged in the information and proved on the trial that the animals had been exposed to a dangerous communicable disease and that they had been placed in a corral in quarantine on the premises of the accused and that he, in violation of the quarantine, had taken them from the corral and worked them upon the lands adjoining. They had not been in the highway nor moved from one municipality or settlement to another. They were left upon defendant's hacienda, where they were quarantined, and there worked by the servants of the accused. The Solicitor-General in his brief in this court admits that the sections referred to are not applicable to the case at bar and also admits that section 7 of said Act is not applicable. This section provides: "Whenever the Director of Agriculture shall order any animal placed in quarantine in accordance with the provisions of this Act, the owner of such animal, or his agent, shall deliver it at the place designated for the quarantine and shall provide it with proper food, water, and attendance. Should the owner or his agent fail to comply with this requirement the Director of Agriculture may furnish supplies and attendance needed, and the reasonable cost of such supplies and attendance shall be collectible from the owner or his agent." We are in accord with the opinion expressed by the Solicitor-General with respect to this section, as we are with his opinion as to sections 3, 4, and 6. The law nowhere makes it a penal offense to refuse to comply with the provisions of section 7, nor is the section itself so phrased as to warrant the conclusion that it was intended to be a penal section. The section provides the means by which the refusal of the owner to comply therewith shall be overcome and the punishment, if we may call it punishment, which he shall receive by reason of that refusal. It has none of the aspects of a penal provision or the form or substance of such a provision. It does not prohibit any act. It does not compel an act nor does it make the refusal to comply unlawful, nor does it really punish or impose a criminal penalty. The other sections of the law under which punishments may be inflicted are so phrased as to make the prohibited act unlawful, and section 8 provides the punishment for any act declared unlawful by the law. The Solicitor-General suggests, but does not argue, that section 6 is applicable to the case at bar. Section 6 simply authorizes the Director of Agriculture to do certain things, among them, paragraph (c) "to require that animals which art suffering from dangerous communicable diseases or have been exposed thereto be placed in quarantine at such place and for such time as may be deemed by him necessary to prevent the spread of the disease." Nowhere in the law, however, is the violation of the orders of the Bureau of Agriculture prohibited or made unlawful, nor is there provided any punishment for a violation of such orders. Section 8 provides that "any person violating any of the provisions of this Act shall, upon conviction, be punished by a fine of not more than one thousand pesos, or by imprisonment for not more than six months, or by both such fine and imprisonment, in the discretion of the court, for each offense." 'A violation of the orders of the Bureau of Agriculture, as authorized by paragraph (c), is not a violation of the provisions of the Act. The orders of the Bureau of Agriculture, while they may possibly be said to have the force of law, are not statutes and particularly not penal statutes, and a violation of such orders is not a penal offense unless the statute itself somewhere makes a violation thereof unlawful and penalizes it. Nowhere in Act No. 1760 is a violation of the orders of the Bureau of Agriculture made a penal offense, nor is such violation punished in any way therein.

63

Finally, it is contended by the Government that if the offense stated in the information and proved upon the trial does not constitute a violation of any of the provisions of Act No. 1760, it does constitute a violation of article 581, paragraph 2, of the Penal Code. It provides:
"A fine of not less than fifteen and not more than seventy pesetas and censure shall be imposed upon: . . . "2.Any person who shall violate the regulations, ordinances, or proclamations issued with reference to any epidemic disease among animals, the extermination of locusts, or any other similar plague."

It is alleged in the information and was proved on the trial that the Bureau of Agriculture had ordered a quarantine of the carabaos at the time and place mentioned; that the quarantine had been executed and completed and the animals actually segregated and confined; that the accused, in violation of such quarantine and of the orders of the Bureau of Agriculture, duly promulgated, broke the quarantine, removed the animals and used them in the ordinary work of his plantation. We consider these acts a plain violation of the article of the Penal Code above quoted. The fact that the information in its preamble charged a violation of Act No. 1760 does not prevent us from finding the accused guilty of a violation of an article of the Penal Code. The complaint opens as follows: "The undersigned accuses Adriano Panlilio of a violation of Act No. 1760, committed as follows:" Then follows the body of the information already quoted in this opinion. We would not permit an accused to be convicted under one Act when he is charged with the violation of another, if the change from one statute to another involved a change of the theory of the trial or required of the defendant a different defense or surprised him in any other way. The allegations required under Act No. 1760 include those required under article 581. The accused could have defended himself in no different manner if he had been expressly charged with a violation of article 581. In the case of United States vs. Paua (6 Phil. Rep., 740), the information stating the facts upon which the charge was founded terminated with this expression: "In violation of section 315 of Act No. 355 of the Philippine Commission. in effect on the 6th of February, 1902." In the resolution of this case the Supreme Court found that the facts set forth in the information and proved on the trial did not constitute a violation of section 315 of Act No. 355 as alleged in the information, but did constitute a violation of article 387 in connection with article 383 of the Penal Code, and accordingly convicted the accused under those articles and sentenced him to the corresponding penalty. In that case the court said: "The foregoing facts, duly established as they were by the testimony of credible witnesses who heard and saw everything that occurred, show beyond peradventure of doubt that the crime of attempted bribery, as defined in article 387, in connection with article 383 of the Penal Code, has been committed, it being immaterial whether it is alleged in the complaint that section 315 of Act No. 355 of the Philippine Commission was violated by the defendant, as the same recites facts and circumstances sufficient to constitute the crime of bribery as defined and punished in the aforesaid articles of the Penal Code." (U. S. vs. Lim San, 17 Phil. Rep., 273; U. S. vs. Jeffrey, 15 Phil. Rep., 391; U. S. vs. Guzman, 26 Phil. Rep., 22.) The accused is accordingly convicted of a violation of article 581, paragraph 2, of the Penal Code, and is sentenced to pay a fine of seventy pesetas (P14) and censure, with subsidiary imprisonment in case of insolvency, and the costs of this appeal. So ordered.

Arellano, C.J., Torres, Carson and Araullo, JJ., concur. Johnson, J., dissents.

[G.R. No. 163980. August 3, 2006.]

64

HOLY SPIRIT HOMEOWNERS ASSOCIATION, INC. and NESTORIO F. APOLINARIO, in his personal capacity and as President of Holy Spirit Homeowners Association, Inc., petitioners, vs. SECRETARY MICHAEL DEFENSOR, in his capacity as Chairman of the Housing and Urban Development Coordinating Council (HUDCC), ATTY. EDGARDO PAMINTUAN, in his capacity as General Manager of the National Housing Authority (NHA), MR. PERCIVAL CHAVEZ, in his capacity as Chairman of the Presidential Commission for the Urban Poor (PCUP), MAYOR FELICIANO BELMONTE, in his capacity as Mayor of Quezon City, SECRETARY ELISEA GOZUN, in her capacity as Secretary of the Department of Environment and Natural Resources (DENR) and SECRETARY FLORENTE SORIQUEZ, in his capacity as Secretary of the Department of Public Works and Highways (DPWH) as ex-officio members of the NATIONAL GOVERNMENT CENTER ADMINISTRATION COMMITTEE, respondents.

DECISION

TINGA, J :
p

The instant petition for prohibition under Rule 65 of the 1997 Rules of Civil Procedure, with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction, seeks to prevent respondents from enforcing the implementing rules and regulations (IRR) of Republic Act No. 9207, otherwise known as the "National Government Center (NGC) Housing and Land Utilization Act of 2003." Petitioner Holy Spirit Homeowners Association, Inc. (Association) is a homeowners association from the West Side of the NGC. It is represented by its president, Nestorio F. Apolinario, Jr., who is a co-petitioner in his own personal capacity and on behalf of the association. Named respondents are the ex-officio members of the National Government Center Administration Committee (Committee). At the filing of the instant petition, the Committee was composed of Secretary Michael Defensor, Chairman of the Housing and Urban Development Coordinating Council (HUDCC), Atty. Edgardo Pamintuan, General Manager of the National Housing Authority (NHA), Mr. Percival Chavez, Chairman of the Presidential Commission for Urban Poor (PCUP), Mayor Feliciano Belmonte of Quezon City, Secretary Elisea Gozun of the Department of Environment and Natural Resources (DENR), and Secretary Florante Soriquez of the Department of Public Works and Highways (DPWH). Prior to the passage of R.A. No. 9207, a number of presidential issuances authorized the creation and development of what is now known as the National Government Center (NGC).
AIcECS

On March 5, 1972, former President Ferdinand Marcos issued Proclamation No. 1826, reserving a parcel of land in Constitution Hills, Quezon City, covering a little over 440 hectares as a national government site to be known as the NGC. 1 On August 11, 1987, then President Corazon Aquino issued Proclamation No. 137, excluding 150 of the 440 hectares of the reserved site from the coverage of Proclamation No. 1826 and authorizing instead the disposition of the excluded portion by direct sale to the bona fide residents therein. 2 In view of the rapid increase in population density in the portion excluded by Proclamation No. 137 from the coverage of Proclamation No. 1826, former President Fidel Ramos issued Proclamation No. 248 on September 65

7, 1993, authorizing the vertical development of the excluded portion to maximize the number of families who can effectively become beneficiaries of the government's socialized housing program. 3 On May 14, 2003, President Gloria Macapagal-Arroyo signed into law R.A. No. 9207. Among the salient provisions of the law are the following:
Sec. 2.Declaration of Policy. It is hereby declared the policy of the State to secure the land tenure of the urban poor. Toward this end, lands located in the NGC, Quezon City shall be utilized for housing, socioeconomic, civic, educational, religious and other purposes. Sec. 3.Disposition of Certain Portions of the National Government Center Site to Bona Fide Residents . Proclamation No. 1826, Series of 1979, is hereby amended by excluding from the coverage thereof, 184 hectares on the west side and 238 hectares on the east side of Commonwealth Avenue, and declaring the same open for disposition to bona fide residents therein: Provided, That the determination of the bona fide residents on the west side shall be based on the census survey conducted in 1994 and the determination of the bona fide residents on the east side shall be based on the census survey conducted in 1994 and occupancy verification survey conducted in 2000: Provided, further, That all existing legal agreements, programs and plans signed, drawn up or implemented and actions taken, consistent with the provisions of this Act are hereby adopted. Sec. 4.Disposition of Certain Portions of the National Government Center Site for Local Government or Community Facilities, Socioeconomic, Charitable, Educational and Religious Purposes. Certain portions of land within the aforesaid area for local government or community facilities, socioeconomic, charitable, educational and religious institutions are hereby reserved for disposition for such purposes: Provided, That only those institutions already operating and with existing facilities or structures, or those occupying the land may avail of the disposition program established under the provisions this Act;Provided, further, That in ascertaining the specific areas that may be disposed of in favor of these institutions, the existing site allocation shall be used as basis therefore: Provided, finally. That in determining the reasonable lot allocation of such institutions without specific lot allocations, the land area that may be allocated to them shall be based on the area actually used by said institutions at the time of effectivity of this Act. (Emphasis supplied.)
cAISTC

In accordance with Section 5 of R.A. No. 9207, 4 the Committee formulated the Implementing Rules and Regulations (IRR) of R.A. No. 9207 on June 29, 2004. Petitioners subsequently filed the instant petition, raising the following issues:
WHETHER OR NOT SECTION 3.1 (A.4), 3.1 (B.2), 3.2 (A.1) AND 3.2 (C.1) OF THE RULES AND REGULATIONS OF REPUBLIC ACT NO. 9207, OTHERWISE KNOWN AS "NATIONAL GOVERNMENT CENTER (NGC) HOUSING AND LAND UTILIZATION ACT OF 2003" SHOULD BE DECLARED NULL AND VOID FOR BEING INCONSISTENT WITH THE LAW IT SEEKS TO IMPLEMENT. WHETHER OR NOT SECTION 3.1 (A.4), 3.1 (B.2), 3.2 (A.1) AND 3.2 (C.1) OF THE RULES AND REGULATIONS OF REPUBLIC ACT NO. 9207, OTHERWISE KNOWN AS "NATIONAL GOVERNMENT CENTER (NGC) HOUSING AND LAND UTILIZATION ACT OF 2003" SHOULD BE DECLARED NULL AND VOID FOR BEING ARBITRARY, CAPRICIOUS AND WHIMSICAL. 5

First, the procedural matters. The Office of the Solicitor General (OSG) argues that petitioner Association cannot question the implementation of Section 3.1 (b.2) and Section 3.2 (c.1) since it does not claim any right over the NGC East Side. Section 3.1 (b.2) provides for the maximum lot area that may be awarded to a resident-beneficiary of the NGC East Side, while Section 3.2 (c.1) imposes a lot price escalation penalty to a qualified beneficiary who fails to execute a contract to sell within the prescribed period. 6Also, the OSG contends that since petitioner 66

association is not the duly recognized people's organization in the NGC and since petitioners not qualify as beneficiaries, they cannot question the manner of disposition of lots in the NGC. 7 "Legal standing" or locus standi has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged . . . The gist of the question of standing is whether a party alleges "such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions." 8 Petitioner association has the legal standing to institute the instant petition, whether or not it is the duly recognized association of homeowners in the NGC. There is no dispute that the individual members of petitioner association are residents of the NGC. As such they are covered and stand to be either benefited or injured by the enforcement of the IRR, particularly as regards the selection process of beneficiaries and lot allocation to qualified beneficiaries. Thus, petitioner association may assail those provisions in the IRR which it believes to be unfavorable to the rights of its members. Contrary to the OSG's allegation that the failure of petitioner association and its members to qualify as beneficiaries effectively bars them from questioning the provisions of the IRR, such circumstance precisely operates to confer on them the legal personality to assail the IRR. Certainly, petitioner and its members have sustained direct injury arising from the enforcement of the IRR in that they have been disqualified and eliminated from the selection process. While it is true that petitioners claim rights over the NGC West Side only and thus cannot be affected by the implementation of Section 3.1 (b.2), which refers to the NGC East Side, the rest of the assailed provisions of the IRR, namely, Sections 3.1 (a.4), 3.2 (a.1) and 3.2 (c.1), govern the disposition of lots in the West Side itself or all the lots in the NGC.
HDAaIS

We cannot, therefore, agree with the OSG on the issue of locus standi. The petition does not merit dismissal on that ground. There are, however, other procedural impediments to the granting of the instant petition. The OSG claims that the instant petition for prohibition is an improper remedy because the writ of prohibition does not lie against the exercise of a quasi-legislative function. 9 Since in issuing the questioned IRR of R.A. No. 9207, the Committee was not exercising judicial, quasi-judicial or ministerial function, which is the scope of a petition for prohibition under Section 2, Rule 65 of the 1997 Rules of Civil Procedure, the instant prohibition should be dismissed outright, the OSG contends. For their part, respondent Mayor of Quezon City 10 and respondent NHA 11contend that petitioners violated the doctrine of hierarchy of courts in filing the instant petition with this Court and not with the Court of Appeals, which has concurrent jurisdiction over a petition for prohibition.

The cited breaches are mortal. The petition deserves to be spurned as a consequence. Administrative agencies possess quasi-legislative or rule-making powers and quasi-judicial or administrative adjudicatory powers. Quasi-legislative or rule-making power is the power to make rules and regulations which results in delegated legislation that is within the confines of the granting statute and the doctrine of nondelegability and separability of powers. 12 In questioning the validity or constitutionality of a rule or regulation issued by an administrative agency, a party need not exhaust administrative remedies before going to court. This principle, however, applies only where the act of the administrative agency concerned was performed pursuant to its quasi-judicial function, and not when the assailed act pertained to its rule-making or quasi-legislative power. 13

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The assailed IRR was issued pursuant to the quasi-legislative power of the Committee expressly authorized by R.A. No. 9207. The petition rests mainly on the theory that the assailed IRR issued by the Committee is invalid on the ground that it is not germane to the object and purpose of the statute it seeks to implement. Where what is assailed is the validity or constitutionality of a rule or regulation issued by the administrative agency in the performance of its quasi-legislative function, the regular courts have jurisdiction to pass upon the same. 14 Since the regular courts have jurisdiction to pass upon the validity of the assailed IRR issued by the Committee in the exercise of its quasi-legislative power, the judicial course to assail its validity must follow the doctrine of hierarchy of courts. Although the Supreme Court, Court of Appeals and the Regional Trial Courts have concurrent jurisdiction to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction, such concurrence does not give the petitioner unrestricted freedom of choice of court forum. 15 True, this Court has the full discretionary power to take cognizance of the petition filed directly with it if compelling reasons, or the nature and importance of the issues raised, so warrant. 16 A direct invocation of the Court's original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. 17 In Heirs of Bertuldo Hinog v. Melicor, 18 the Court said that it will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts, and exceptional and compelling circumstances, such as cases of national interest and of serious implications, justify the availment of the extraordinary remedy of writ of certiorari, calling for the exercise of its primary jurisdiction. 19 A perusal, however, of the petition for prohibition shows no compelling, special or important reasons to warrant the Court's taking cognizance of the petition in the first instance. Petitioner also failed to state any reason that precludes the lower courts from passing upon the validity of the questioned IRR. Moreover, as provided in Section 5, Article VIII of the Constitution, 20 the Court's power to evaluate the validity of an implementing rule or regulation is generally appellate in nature. Thus, following the doctrine of hierarchy of courts, the instant petition should have been initially filed with the Regional Trial Court.
aSECAD

A petition for prohibition is also not the proper remedy to assail an IRR issued in the exercise of a quasilegislative function. Prohibition is an extraordinary writ directed against any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions, ordering said entity or person to desist from further proceedings when said proceedings are without or in excess of said entity's or person's jurisdiction, or are accompanied with grave abuse of discretion, and there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law. 21 Prohibition lies against judicial or ministerial functions, but not against legislative or quasi-legislative functions. Generally, the purpose of a writ of prohibition is to keep a lower court within the limits of its jurisdiction in order to maintain the administration of justice in orderly channels. 22 Prohibition is the proper remedy to afford relief against usurpation of jurisdiction or power by an inferior court, or when, in the exercise of jurisdiction in handling matters clearly within its cognizance the inferior court transgresses the bounds prescribed to it by the law, or where there is no adequate remedy available in the ordinary course of law by which such relief can be obtained. 23 Where the principal relief sought is to invalidate an IRR, petitioners' remedy is an ordinary action for its nullification, an action which properly falls under the jurisdiction of the Regional Trial Court. In any case, petitioners' allegation that "respondents are performing or threatening to perform functions without or in excess of their jurisdiction" may appropriately be enjoined by the trial court through a writ of injunction or a temporary restraining order. In a number of petitions, 24 the Court adequately resolved them on other grounds without adjudicating on the constitutionality issue when there were no compelling reasons to pass upon the same. In like manner, the instant petition may be dismissed based on the foregoing procedural grounds. Yet, the Court will not shirk from its duty to rule on the merits of this petition to facilitate the speedy resolution of this case. In proper cases, procedural rules may be relaxed or suspended in the interest of substantial justice. And the power of 68

the Court to except a particular case from its rules whenever the purposes of justice require it cannot be questioned.25 Now, we turn to the substantive aspects of the petition. The outcome, however, is just as dismal for petitioners. Petitioners assail the following provisions of the IRR:
Section 3.Disposition of Certain portions of the NGC Site to the bonafide residents
3.1.Period for Qualification of Beneficiaries xxx xxx xxx (a.4)Processing and evaluation of qualifications shall be based on the Code of Policies and subject to the condition that a beneficiary is qualified to acquire only one (1) lot with a minimum of 36 sq. m. and maximum of 54 sq. m. and subject further to the availability of lots. xxx xxx xxx (b.2) Applications for qualification as beneficiary shall be processed and evaluated based on the Code of Policies including the minimum and maximum lot allocation of 35 sq. m. and 60 sq. m. xxx xxx xxx 3.2.Execution of the Contract to Sell (a)Westside (a.1) All qualified beneficiaries shall execute Contract to Sell (CTS) within sixty (60) days from the effectivity of the IRR in order to avail of the lot at P700.00 per sq. m. xxx xxx xxx (c)for both eastside and westside (c.1) Qualified beneficiaries who failed to execute CTS on the deadline set in item a.1 above in case of westside and in case of eastside six (6) months after approval of the subdivision plan shall be subjected to lot price escalation.
CTEacH

The rate shall be based on the formula to be set by the National Housing Authority factoring therein the affordability criteria. The new rate shall be approved by the NGC-Administration Committee (NGC-AC).

Petitioners contend that the aforequoted provisions of the IRR are constitutionally infirm as they are not germane to and/or are in conflict with the object and purpose of the law sought to be implemented.

First. According to petitioners, the limitation on the areas to be awarded to qualified beneficiaries under Sec. 3.1 (a.4) and (b.2) of the IRR is not in harmony with the provisions of R.A. No. 9207, which mandates that the lot allocation to qualified beneficiaries shall be based on the area actually used or occupied by bona fide residents without limitation to area. The argument is utterly baseless.
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The beneficiaries of lot allocations in the NGC may be classified into two groups, namely, the urban poor or the bona fide residents within the NGC site and certain government institutions including the local government. Section 3, R.A. No. 9207 mandates the allocation of additional property within the NGC for disposition to itsbona fide residents and the manner by which this area may be distributed to qualified beneficiaries. Section 4, R.A. No. 9207, on the other hand, governs the lot disposition to government institutions. While it is true that Section 4 of R.A. No. 9207 has a proviso mandating that the lot allocation shall be based on the land area actually used or occupied at the time of the law's effectivity, this proviso applies only to institutional beneficiaries consisting of the local government, socioeconomic, charitable, educational and religious institutions which do not have specific lot allocations, and not to the bona fide residents of NGC. There is no proviso which even hints that a bona fide resident of the NGC is likewise entitled to the lot area actually occupied by him. Petitioners' interpretation is also not supported by the policy of R.A. No. 9207 and the prior proclamations establishing the NGC. The government's policy to set aside public property aims to benefit not only the urban poor but also the local government and various government institutions devoted to socioeconomic, charitable, educational and religious purposes. 26 Thus, although Proclamation No. 137 authorized the sale of lots to bona fide residents in the NGC, only a third of the entire area of the NGC was declared open for disposition subject to the condition that those portions being used or earmarked for public or quasi-public purposes would be excluded from the housing program for NGC residents. The same policy of rational and optimal land use can be read in Proclamation No. 248 issued by then President Ramos. Although the proclamation recognized the rapid increase in the population density in the NGC, it did not allocate additional property within the NGC for urban poor housing but instead authorized the vertical development of the same 150 hectares identified previously by Proclamation No. 137 since the distribution of individual lots would not adequately provide for the housing needs of all the bona fide residents in the NGC.
CaEIST

In addition, as provided in Section 4 of R.A. No. 9207, the institutional beneficiaries shall be allocated the areas actually occupied by them; hence, the portions intended for the institutional beneficiaries is fixed and cannot be allocated for other non-institutional beneficiaries. Thus, the areas not intended for institutional beneficiaries would have to be equitably distributed among the bona fide residents of the NGC. In order to accommodate all qualified residents, a limitation on the area to be awarded to each beneficiary must be fixed as a necessary consequence.

Second. Petitioners note that while Sec. 3.2 (a.1) of the IRR fixes the selling rate of a lot at P700.00 per sq.

m., R.A. No. 9207 does not provide for the price. They add Sec. 3.2 (c.1) penalizes a beneficiary who fails to execute a contract to sell within six (6) months from the approval of the subdivision plan by imposing a price escalation, while there is no such penalty imposed by R.A. No. 9207. Thus, they conclude that the assailed provisions conflict with R.A. No. 9207 and should be nullified. The argument deserves scant consideration. Where a rule or regulation has a provision not expressly stated or contained in the statute being implemented, that provision does not necessarily contradict the statute. A legislative rule is in the nature of subordinate legislation, designed to implement a primary legislation by providing the details thereof. 27 All that is required is that the regulation should be germane to the objects and purposes of the law; that the regulation be not in contradiction to but in conformity with the standards prescribed by the law. 28 In Section 5 of R.A. No. 9207, the Committee is granted the power to administer, formulate guidelines and policies, and implement the disposition of the areas covered by the law. Implicit in this authority and the statute's objective of urban poor housing is the power of the Committee to formulate the manner by which the reserved property may be allocated to the beneficiaries. Under this broad power, the Committee is mandated to fill in the details such as the qualifications of beneficiaries, the selling price of the lots, the terms and conditions governing the sale and other key particulars necessary to implement the objective of the law. These 70

details are purposely omitted from the statute and their determination is left to the discretion of the Committee because the latter possesses special knowledge and technical expertise over these matters.

IaHCAD

The Committee's authority to fix the selling price of the lots may be likened to the rate-fixing power of administrative agencies. In case of a delegation of rate-fixing power, the only standard which the legislature is required to prescribe for the guidance of the administrative authority is that the rate be reasonable and just. However, it has been held that even in the absence of an express requirement as to reasonableness, this standard may be implied. 29 In this regard, petitioners do not even claim that the selling price of the lots is unreasonable. The provision on the price escalation clause as a penalty imposed to a beneficiary who fails to execute a contract to sell within the prescribed period is also within the Committee's authority to formulate guidelines and policies to implement R.A. No. 9207. The Committee has the power to lay down the terms and conditions governing the disposition of said lots, provided that these are reasonable and just. There is nothing objectionable about prescribing a period within which the parties must execute the contract to sell. This condition can ordinarily be found in a contract to sell and is not contrary to law, morals, good customs, public order, or public policy.

Third. Petitioners also suggest that the adoption of the assailed IRR suffers from a procedural flaw. According

to them the IRR was adopted and concurred in by several representatives of people's organizations contrary to the express mandate of R.A. No. 9207 that only two representatives from duly recognized peoples' organizations must compose the NGCAC which promulgated the assailed IRR. It is worth noting that petitioner association is not a duly recognized people's organization. In subordinate legislation, as long as the passage of the rule or regulation had the benefit of a hearing, the procedural due process requirement is deemed complied with. That there is observance of more than the minimum requirements of due process in the adoption of the questioned IRR is not a ground to invalidate the same.
aDSIHc

In sum, the petition lacks merit and suffers from procedural deficiencies. WHEREFORE, the instant petition for prohibition is DISMISSED. Costs against petitioners. SO ORDERED.

Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio Morales, Callejo, Sr., Azcuna, Chico-Nazario, Garcia and Velasco Jr., JJ., concur. Panganiban, C.J., in the result.

[G.R. No. 127685. July 23, 1998.] BLAS F. OPLE, petitioner, vs. RUBEN D. TORRES, ALEXANDER AGUIRRE, HECTOR VILLANUEVA, CIELITO HABITO, ROBERT BARBERS, CARMENCITA REODICA, CESAR SARINO, RENATO VALENCIA, TOMAS P. AFRICA, HEAD OF THE NATIONAL COMPUTER CENTER and CHAIRMAN OF THE COMMISSION ON AUDIT, respondents.

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SYNOPSIS Administrative Order No. 308, entitled "Adoption of a National Computerized Identification Reference System," was issued by the President on December 12, 1996. Petitioner challenges the constitutionality of said Administrative Order on two (2) grounds, namely: (1) it is a usurpation of the power of Congress to legislate; and (2) its impermissibility intrudes on our citizenry's protected zone of privacy. Petitioner contends that the Administrative Order is not a mere administrative order but a law and, hence, beyond the power of the President to issue. He further alleges that said Administrative Order establishes a system of identification that is all-encompassing in scope, affects the life and liberty of every Filipino citizen and foreign resident, and more particularly, violates their right to privacy. In declaring the Administrative Order null and void for being unconstitutional, the Supreme Court held that the Administrative Order involves a subject that is not appropriate to be covered by said administrative order. An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of government. It must be in harmony with the law and should be for the sole purpose of implementing the law and carrying out the legislative policy. The essence of privacy is the right to be let alone. The right to privacy is recognized and enshrined in several provisions of the Constitution. Zones of privacy are likewise recognized and protected in our laws. Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental right guaranteed by the Constitution, hence, it is the burden of government to show that A. O. No. 308 is justified by some compelling state interest and that it is narrowly drawn. What is not arguable is the broadness, the vagueness, the overbreath of A. O. No. 308 which if implemented will put our people's right to privacy in clear and present danger.
CaDSHE

A. O. No. 308 falls short of assuring that personal information which will be gathered about our people will only be processed for unequivocally specified purposes. Even while we strike down A. O. No. 308, we spell out that the Court is not per se against the use of computers to accumulate, store, process, retrieve and transmit data to improve our bureaucracy. Given the record-keeping power of the computer, only the indifferent will fail to perceive the danger that A. O. No. 308 gives the government the power to compile a devastating dossier against unsuspecting citizens. SYLLABUS 1.POLITICAL LAW; LEGISLATIVE DEPARTMENT; LEGISLATIVE POWER; CONSTRUED. Legislative power is "the authority, under the Constitution, to make laws, and to alter and repeal them." The Constitution, as the will of the people in their original, sovereign and unlimited capacity, has vested this power in the Congress of the Philippines. The grant of legislative power to Congress is broad, general and comprehensive. The legislative body possesses plenary power for all purposes of civil government. Any power, deemed to be legislative by usage and tradition, is necessarily possessed by Congress, unless the Constitution has lodged it elsewhere. In fine, except as limited by the Constitution, either expressly or impliedly, legislative power embraces all subject and extends to matters of general concern or common interest. 2.ID.; EXECUTIVE DEPARTMENT; EXECUTIVE POWER IS VESTED IN THE PRESIDENT. While Congress is vested with the power to enact laws, the President executes the laws. The executive power is vested in the President. It is generally defined as the power to enforce and administer the laws. It is the power of carrying the laws into practical operation and enforcing their due observance. As head of the Executive Department, the President is the Chief Executive. He represents the government as a whole and sees to it that all laws are enforced by the officials and employees of this department. He has control over the executive department, 72

bureaus and offices. This means that he has the authority to assume directly the functions of the executive department, bureau and office, or interfere with the discretion of its officials. Corollary to the power of control, the President also has the duty of supervising the enforcement of laws for the maintenance of general peace and public order. Thus, he is granted administrative power over bureaus and offices under his control to enable him to discharge his duties effectively.Administrative power is concerned with the work of applying

policies and enforcing orders as determined by proper governmental organs. It enables the President to fix a uniform standard of administrative efficiency and check the official conduct of his agents. To this end, he can issue administrative orders, rules and regulations.
3.ID.; NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM (A. O. No. 308); DOES NOT IMPLEMENT THE LEGISLATIVE POLICY OF THE ADMINISTRATIVE CODE OF 1987; REASONS THEREFOR. Prescinding from these precepts, we hold that A.O. No. 308 involves a subject that is not appropriate to be covered by an administrative order. An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of government. It must be in harmony with the law

and should be for the sole purpose of implementing the law and carrying out the legislative policy. We reject the argument that A.O. No. 308 implements the legislative policy of the Administrative Code of 1987. The

Code is a general law and "incorporates in a unified document the major structural, functional and procedural principles of governance" and "embodies changes in administrative structures and procedures designed to serve the people." The Code is divided into seven (7) Books: Book I deals with Sovereignty and General Administration, Book II with the Distribution of Powers of the three branches of Government, Book III on the Office of the President, Book IV on the Executive Branch, Book V on the Constitutional Commissions, Book VI on National Government Budgeting, and Book VII on Administrative Procedure. These Books contain provisions on the organization, powers and general administration of the executive, legislative and judicial branches of government, the organization and administration of departments, bureaus and offices under the executive branch, the organization and functions of the Constitutional Commissions and other constitutional bodies, the rules on the national government budget, as well as guidelines for the exercise by administrative agencies of quasi-legislative and quasi-judicial powers. The Code covers both the internal administration of government, i.e, internal organization, personnel and recruitment, supervision and discipline, and the effects of the functions performed by administrative officials on private individuals or parties outside government. It cannot be simplistically argued that A.O. No. 308 merely implements the Administrative Code of 1987. It establishes for the first time a National Computerized Identification Reference System. Such a System requires a delicate adjustment of various contending state policies the primacy of national security, the extent of privacy interest against dossier-gathering by government, the choice of policies, etc. Indeed, the dissent of Mr. Justice Mendoza states that the A.O. No. 308 involves the all important freedom of thought. As said administrative order redefines the parameters of some basic rights of our citizenry vis-a-vis the State as well as the line that separates the administrative power of the President to make rules and the legislative power of Congress, it ought to be evident that it deals with a subject that should be covered by law. 4.ID.; ID.; CANNOT PASS CONSTITUTIONAL MUSTER AS AN ADMINISTRATIVE LEGISLATION BECAUSE FACIALLY IT VIOLATES THE RIGHT TO PRIVACY. Assuming, arguendo, that A.O. No. 308 need not be the

subject of a law, still it cannot pass constitutional muster as an administrative legislation because facially it violates the right to privacy. The essence of privacy is the "right to be let alone.

5.ID.; ID.; ID.; REASON THEREFOR. The potential for misuse of the data to be gathered under A.O. No. 308 cannot be underplayed as the dissenters do. Pursuant to said administrative order, an individual must present his PRN everytime he deals with a government agency to avail of basic services and security. His transactions with the government agency will necessarily be recorded whether it be in the computer or in the documentary file of the agency. The individual's file may include his transactions for loan availments, income tax returns, statement of assets and liabilities, reimbursements for medication, hospitalization, etc. The

more frequent the use of the PRN, the better the chance of building a huge and formidable information base through the electronic linkage of the files. The data may be gathered for gainful and useful government

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purposes; but the existence of this vast reservoir of personal information constitutes a covert invitation to misuse, a temptation that may be too great for some of our authorities to resist. We can even grant,
arguendo, that the computer data file will be limited to the name, address and other basic personal information about the individual. Even that hospitable assumption will not save. A.O. No. 308 from constitutional infirmity for again said order does not tell us in clear and categorical terms how these

information gathered shall be handled. It does not provide who shall control and access the data, under what circumstances and for what purpose. These factors are essential to safeguard the privacy and guaranty the

integrity of the information. Well to note, the computer linkage gives other government agencies access to the information. Yet, there are no controls to guard against leakage of information. When the access code of the control programs of the particular computer system is broken, an intruder, without fear of sanction or penalty, can make use of the data for whatever purpose, or worse, manipulate the data stored within the system. It is plain and we hold that A.O. No. 308 falls short of assuring that personal information which will be gathered about our people will only be processed for unequivocally specified purposes. The lack of proper safeguards in this regard of A.O. No. 308 may interfere with the individual's liberty of abode and travel by enabling authorities to track down his movement; it may also enable unscrupulous persons to access confidential information and circumvent the right against self-incrimination; it may pave the way for "fishing expeditions" by government authorities and evade the right against unreasonable searches and seizures. The possibilities of

abuse and misuse of the PRN, biometrics and computer technology are accentuated when we consider that the individual lacks control over what can be read or placed on his ID, much less verify the correctness of the data encoded. They threaten the very abuses that the Bill of Rights seeks to prevent.
cSTHaE

6.ID.; ID.; ID.; THE USE OF BIOMETRICS AND COMPUTER TECHNOLOGY DOES NOT ASSURE THE INDIVIDUAL OF A REASONABLE EXPECTATION OF PRIVACY. We reject the argument of the Solicitor General that an individual has a reasonable expectation of privacy with regard to the National ID and the use of biometrics technology as it stands on quicksand. The reasonableness of a person's expectation of privacy depends on a two-part test: (1) whether by his conduct, the individual has exhibited an expectation of privacy; and (2) whether this expectation is one that society recognizes an reasonable. The factual circumstances of the case determines the reasonableness of the expectation. However, other factors, such as customs, physical surroundings and practices of a particular activity, may serve to create or diminish this expectation. The use of biometrics and computer technology in A.O. No. 308 does not assure the individual of a reasonable expectation of privacy. As technology advances, the level of reasonably expected privacy decreases. The measure of protection granted by the reasonable expectation diminishes as relevant technology becomes more widely accepted. The security of the computer data file depends not only on the physical inaccessibility of the file but also on the advances in hardware and software computer technology. A.O. No. 308 is so widely drawn that a minimum standard for a reasonable expectation of privacy, regardless of technology used, cannot be inferred from its provisions. ROMERO, J., separate opinion: POLITICAL LAW; NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM, VIOLATES A PERSON'S RIGHT TO PRIVACY. Whether viewed as a personal or a property right, if found its way in Philippine Constitutions and statutes; this, in spite of the fact that Philippine culture can hardly be said to provide a fertile field for the burgeoning of said right. In fact, our lexicographers have yet to coin a word for it in the Filipino language. Customs and practices, being what they have always been, Filipinos think it perfectly natural and in good taste to inquire into each other's intimate affairs. One has only to sit through a televised talk show to be convinced that what passes for wholesome entertainment is actually an invasion into one's private life, leaving the interviewee embarrassed and outrage by turns. With the overarching influence of common law and the recent advent of the Information Age with its high-tech devices, the right to privacy has expanded to embrace its public law aspect. The Bill of Rights of our evolving Charters, a direct transplant form that of the United States, contains in essence facets of the right to privacy which constitutes limitations on the far-reaching 74

powers government. So terrifying are the possibilities of a law such as Administrative Order No. 308 in making inroads into the private lives of the citizens, a virtual Big Brother looking over our shoulders, that it must without delay, be "slain upon sight" before our society turns totalitarian with each of us, a mindless robot. VITUG, J., separate opinion: POLITICAL LAW; NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM, AN UNDUE AND IMPERMISSIBLE EXERCISE OF LEGISLATIVE POWER BY THE EXECUTIVE. Administrative Order No. 308 appears to be so extensively drawn that could, indeed, allow unbridled options to become available to its implementors beyond the reasonable comfort of the citizens and of residents alike. Prescinding from the foregoing and most importantly to this instance, the subject covered by the questioned administrative order can have far-reaching consequences that can tell on all individuals, their liberty and privacy, that, to my mind, should make it indispensable and appropriate to have the matter specifically addressed by the Congress of the Philippines, the policy-making body of our government, to which the task should initially belong and to which the authority to formulate and promulgate that policy is constitutionally lodged. Wherefore, I vote for the nullification of Administrative Order No. 308 for being an undue and impermissible exercise of legislative power by the Executive. PANGANIBAN, J., separate opinion: POLITICAL LAW; NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM (AO 308), SUBJECT MATTER THEREOF IS BEYOND THE POWERS OF THE PRESIDENT TO REGULATE WITHOUT A LEGISLATIVE ENACTMENT. I concur only in the result and only on the ground that an executive issuance is not legally sufficient to establish an all encompassing computerized system of identification in the country. The subject matter contained in AO 308 is beyond the powers of the President to regulate without a legislative enactment. KAPUNAN, J., dissenting opinion: 1. POLITICAL LAW; NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM; PURPOSE. The National Computerized Identification Reference System, to which the NSO, GSIS and SSS are linked as lead members of the IACC is intended to establish uniform standards for ID cards issued by key government agencies (like the SSS) for the "efficient identification of persons." Under the new system, only on retaliate and tamper-proof I.D. need be presented by the cardholder instead of several identification papers such as passports and driver's license, to able to transact with government agencies. The improved ID can be used to facilitate public transactions such as: 1. Payment of SSS and GSIS benefits 2. Applications for driver's license, BIR TIN, passport, marriage license, death certificate, NBI and police clearance and business permits. 3. Availment of Medicare services in hospitals 4. Availment of welfare services 5. Application for work/ employment 6. Pre-requisite for voter's ID. The card may also be used for private transactions such as: 1. Opening of bank accounts 2. Encashment of checks 3. Applications for loans, credit cards, water, power, telephones, pagers, etc. 4. Purchase of stocks 5. Application for work/employment 6. Insurance claims 7. Receipt of payments, checks, letters, valuables, etc. The new identification system would tremendously improve and uplift public service in our country to the benefit of Filipino citizens and resident aliens. It would promote, facilitate and speed up legitimate transactions with government offices as well as with private and business entities. Experience tells us of the constant delays and inconveniences the public has to suffer in availing of basic public services and social security benefits because of inefficient and not too reliable means of identification of the beneficiaries. 2.ID.; ID.; SALIENT FEATURES. Thus, in the "Primer on the Social Security Card and Administrative Order No. 308" issued by the SSS, a lead agency in the implementation of the said order, the following salient features are mentioned: 1. A.O. 308 merely establishes the standards for I.D. cards issued by key government agencies such as SSS and GSIS. 2. It does not establish a national I.D. system; neither does it require a 75

national I.D. card for every person. 3. The use of the I.D. is voluntary. 4. The I.D. is not required for delivery of any government service. Everyone has the right to basic government services as long as he is qualified under existing laws. 5. The I.D. cannot and will not in any way be used to prevent one to travel. 6. There will be no discrimination. Non-holders of the improved I.D. are still entitled to the same services but will be subjected to the usual rigid identification and verification beforehand. 3.ID.; ID.; EXERCISE OF PRESIDENT'S QUASI-LEGISLATIVE POWER VESTED TO HIM UNDER ADMINISTRATIVE CODE OF 1987. The Administrative Code of 1987 has unequivocally vested the President with quasi-legislative powers in the form of executive orders, administrative orders, proclamations, memorandum orders and circulars and general or special orders. An administrative order, like the one under which the new identification system is embodied, has its peculiar meaning under the 1987 Administrative Code. The National Computerized Identification Reference system was established pursuant to the aforequoted provision precisely because its principal purpose, as expressly stated in the order, is to provide the people with "the facility to conveniently transact business" with the various government agencies providing basic services. Being the "administrative head," it is unquestionably the responsibility of the President to find ways and means to improve the government bureaucracy, and make it more professional, efficient and reliable, specially those government agencies and instrumentalities which provide basic services and which the citizenry constantly transact with, like the Government Service Insurance System (GSIS), Social Security System (SSS) and National Statistic Office (NSO). The National computerized ID system is one such advancement. To emphasize, the new identification reference system is created to streamline the bureaucracy, cut the red tape and ultimately achieve administrative efficiency. The project, therefore, relates to, is an appropriate subject and falls squarely within the ambit of the Chief Executive's administrative power under which, in order to successfully carry out his administrative duties, he has been granted by law quasi-legislative powers, quoted above. A.O. No. 308 was promulgated by the President pursuant to the quasi-legislative powers expressly granted to him by law and in accordance with his duty as administrative head. Hence, the contention that the President usurped the legislative prerogatives of Congress has no firm basis. 4.ID.; ID.; PREMATURE FOR JUDICIAL INQUIRY. Having resolved that the President has the authority and prerogative to issue A.O. No. 308, I submit that it is premature for the Court to determine the constitutionality or unconstitutionality of the National Computerized Identification Reference System. Basic in constitutional law is the rule that before the court assumes jurisdiction over and decide constitutional issues, the following requisites must first be satisfied: 1) there must be an actual case or controversy involving a conflict of rights susceptible of judicial determination; 2) the constitutional question must be raised by a proper party; 3) the constitutional question must be raised at the earliest opportunity; and 4) the resolution of the constitutional question must be necessary to the resolution of the case. In this case, it is evident that the first element is missing. Judicial intervention calls for an actual case or controversy which is defined as "an existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory." Justice Isagani A. Cruz further expounds that "(a) justifiable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character or from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of special relief through a decree that is conclusive in character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. . . ." A.O. No. 308 does not create any concrete or substantial controversy. It provides the general framework of the National Computerized Identification Reference System and lays down the basic standards (efficiency, convenience and prevention of fraudulent transactions) for its creation. But as manifestly indicated in the subject order, it is the Inter-Agency Coordinating Committee (IACC) which is tasked to research, study and formulate the guidelines and parameters for the use of Biometrics Technology and in computer application designs that will define and give substance to the new system. This petition is, thus, premature considering that the IACC is still in the process of doing the leg work and has yet to codify and formalize the details of the new system.

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5.ID.; ID.; DOES NOT VIOLATE THE CONSTITUTIONAL RIGHT TO PRIVACY. There is nothing in A.O. No. 308, as it is worded, to suggest that the advanced methods of the Biometrics Technology. Consequently, the choice of the particular form and extent of Biometrics Technology that may pose danger to the right of privacy will be adopted. The standards set in A.O. No. 308 for the adoption of the new system are clear-cut and unequivocably spelled out in the "WHEREASES" and body of the order, namely, the need to provide citizens and foreign residents with the facility to conveniently transact business with basic service and social securityproviders and other government instrumentalities; the computerized system is intended to properly and efficiently identify persons seeking basic services or social security and reduce, if not totally eradicate fraudulent transactions and misrepresentation; the national identification reference system is established among the key basic services and social security providers; and finally, the IACC Secretariat shall coordinate with different Social Security and Services Agencies to establish thestandards in the use of Biometrics Technology. Consequently, the choice of the particular form and extent of Biometrics Technology that will be applied and the parameters for its use (as will be defined in the guidelines) will necessarily and logically be guided, limited and circumscribed by the afore-stated standards. The fear entertained by the majority on the potential dangers of this new technology is thus securedly allayed by the specific limitations set by the above-mentioned standards. More than this, the right to privacy is well-ensconced in and directly protected by various provisions of the Bill of Rights, the Civil Code, the Revised Penal Code, and certain special laws, all so painstakingly and resourcefully catalogued in the majority opinion. Many of these laws provide penalties for their violation in the form of imprisonment, fines, or damages. These laws will serve as powerful deterrents not only in the establishment of any administrative rule that will violate the constitutionally protected right to privacy, but also to would-be transgressors of such right. 6.ID.; ID.; DOES NOT REQUIRE THE TRANSFER OF APPROPRIATION BUT A POOLING OF FUNDS AND RESOURCES BY THE VARIOUS GOVERNMENT AGENCIES INVOLVED IN THE PROJECT. On the issue of funding, the majority submits that Section 6 of A.O. No. 308, which allows the government agencies included in the new system to obtain funding from their respective budgets, is unconstitutional for being an illegal transfer of appropriations. It is not so. The budget for the national identification system cannot be deemed a transfer of funds since the same is composed of and will be implemented by the member government agencies. Moreover, these agencies particularly the GSIS and SSS have been issuing some form of identification or membership card. The improved ID cards that will be issued under this new system would just take place of the old identification cards and budget-wise, the funds that were being used to manufactured the old ID cards, which are usually accounted for under the "Supplies and Materials" item of the Government Accounting and Auditing Manual, could now be utilized to fund the new cards. Hence, what is envisioned is not a transfer of appropriations but a pooling of funds and resources by the various government agencies involved in the project. MENDOZA, J., dissenting opinion: 1.POLITICAL LAW; NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM (A. O. NO. 308); BASED ON DATA WHICH THE GOVERNMENT AGENCIES INVOLVED HAVE ALREADY BEEN REQUIRING INDIVIDUALS MAKING USE OF THEIR SERVICES TO GIVE. J. Mendoza does not see how from the bare provisions of the Order, the full text of which is set forth in the majority opinion, petitioner and the majority can conclude that the Identification Reference System establishes such comprehensive personal information dossiers that can destroy individual privacy. So far as the Order provides, all that is contemplated is an identification system based on data which the government agencies involved have already been requiring individuals making use of their services to give. 2.ID.; ID.; SIMPLY ORGANIZES SERVICE AGENCIES OF THE GOVERNMENT TO FACILITATE THE IDENTIFICATION OF PERSONS SEEKING BASIC SERVICES AND SOCIAL SECURITY. More specifically, the question is whether the establishment of the Identification Reference System will not result in the compilation of massive dossiers on individuals which, beyond their use for identification, can become instruments of 77

thought control. So far, the text of A.O. No. 308 affords no basis for believing that the data gathered can be used for such sinister purpose. As already stated, nothing that is not already being required by the concerned agencies of those making use of their services is required by the Order in question. The Order simply organizes service agencies of the government into a System for the purpose of facilitating the identification of persons seeking basic services and social security. Thus, the whereas clauses of A.O. No. 308 state: . . . . . . . . . The application of biometric technology and the standardization of computer designs can provide service agencies with precise identification of individuals, but what is wrong with that? 3.ID.; ID.; NO MORE THAN A DIRECTIVE TO GOVERNMENT AGENCIES WHICH THE PRESIDENT HAS ISSUED IN HIS CAPACITY AS ADMINISTRATIVE HEAD. A.O. No. 308 is no more than a directive to government agencies which the President of the Philippines has issued in his capacity as administrative head. It is not a statute. It confers no right; it imposes no duty; it affords no protection; it creates no office. It is, as its name indicates, a mere administrative order, the precise nature of which is given in the following excerpt from the decision in the early case of Olsen & Co. v. Herstein: [It] is nothing more or less than a command from a superior to an inferior. It creates no relation except between the official who issues it and the official who receives it. Such orders, whether executive or departmental, have for their object simply the efficient and economical administration of the affairs of the department to which or in which they are issued in accordance with the law governing the subject-matter. They are administrative in their nature and do not pass beyond the limits of the department to which they are directed or in which they are published, and, therefore, create no rights in third persons. They are based on, and are the product of, a relationship in which power is their source and obedience their object. Disobedience to or deviation from such an order can be punished only by the power which issued it; and, if that power fails to administer the corrective, then the disobedience goes unpunished. In that relationship no third person or official may intervene,. not even the courts. Such orders may be very temporary, they being subject to instant revocation or modification by the power which published them. Their very nature, as determined by the relationship which produced them, demonstrates clearly, the impossibility of any other person enforcing them except the one who created them. An attempt on the part of the courts to enforce such orders would result not only in confusion but, substantially, in departmental anarchy also. 4.CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO PRIVACY; DOES NOT BAR ALL INCURSIONS INTO INDIVIDUAL PRIVACY. Indeed, the majority concedes that "the right of privacy does not bar all incursions into individual privacy. . . [only that such] incursions into the right must be accompanied by proper safeguards and well-defined standards to prevent unconstitutional invasions." In the case of the Identification Reference System, the purpose is to facilitate the transaction of business with service agencies of the government and to prevent fraud and misrepresentation. The personal identification of an individual can facilitate his treatment in any government hospital in case of emergency. On the other hand, the delivery of material assistance, such as free medicines, can be protected from fraud or misrepresentation as the absence of a data base makes it possible for unscrupulous individuals to obtain assistance from more than one government agency.
caIDSH

DECISION

PUNO, J :
p

The petition at bar is a commendable effort on the part of Senator Blas F. Ople to prevent the shrinking of the right to privacy, which the revered Mr. Justice Brandeis considered as "the most comprehensive of rights and the right most valued by civilized men.'' 1 Petitioner Ople prays that we invalidate Administrative Order No. 308 entitled "Adoption of a National Computerized Identification Reference System" on two important constitutional grounds, viz: one, it is a usurpation of the power of Congress to legislate, and two, it impermissibly intrudes 78

on our citizenry's protected zone of privacy. We grant the petition for the rights sought to be vindicated by the petitioner need stronger barriers against further erosion.
cdphil

A.O. No. 308 was issued by President Fidel V. Ramos on December 12, 1996 and reads as follows:
"ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM WHEREAS, there is a need to provide Filipino citizens and foreign residents with the facility to conveniently transact business with basic service and social security providers and other government instrumentalities; WHEREAS, this will require a computerized system to properly and efficiently identify persons seeking basic services on social security and reduce, if not totally eradicate, fraudulent transactions and misrepresentations; WHEREAS, a concerted and collaborative effort among the various basic services and social security providing agencies and other government instrumentalities is required to achieve such a system; NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of the powers vested in me by law, do hereby direct the following:

SEC. 1.Establishment of a National Computerized Identification Reference System . A decentralized Identification Reference System among the key basic services and social security providers is hereby established. SEC. 2.Inter-Agency Coordinating Committee. An Inter-Agency Coordinating Committee (IACC) to draw-up the implementing guidelines and oversee the implementation of the System is hereby created, chaired by the Executive Secretary, with the following as members: Head, Presidential Management Staff Secretary, National Economic Development Authority Secretary, Department of the Interior and Local Government Secretary, Department of Health Administrator, Government Service Insurance System, Administrator, Social Security System, Administrator, National Statistics Office Managing Director, National Computer Center. SEC. 3.Secretariat. The National Computer Center (NCC) is hereby designated as secretariat to the IACC and as such shall provide administrative and technical support to the IACC. SEC. 4.Linkage Among Agencies. The Population Reference Number (PRN) generated by the NSO shall serve as the common reference number to establish a linkage among concerned agencies. The IACC Secretariat shall coordinate with the different Social Security and Services Agencies to establish

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the standards in the use of Biometrics Technology and in computer application designs of their respective systems. SEC. 5.Conduct of Information Dissemination Campaign. The Office of the Press Secretary, in coordination with the National Statistics Office, the GSIS and SSS as lead agencies and other concerned agencies shall undertake a massive tri-media information dissemination campaign to educate and raise public awareness on the importance and use of the PRN and the Social Security Identification Reference. SEC. 6.Funding. The funds necessary for the implementation of the system shall be sourced from the respective budgets of the concerned agencies. SEC. 7.Submission of Regular Reports. The NSO, GSIS and SSS shall submit regular reports to the Office of the President, through the IACC, on the status of implementation of this undertaking. SEC. 8.Effectivity. This Administrative Order shall take effect immediately. DONE in the City of Manila, this 12th day of December in the year of Our Lord, Nineteen Hundred and Ninety-Six. (SGD.) FIDEL V. RAMOS"

A.O. No. 308 was published in four newspapers of general circulation on January 22, 1997 and January 23, 1997. On January 24, 1997, petitioner filed the instant petition against respondents, then Executive Secretary Ruben Torres and the heads of the government agencies, who as members of the Inter-Agency Coordinating Committee, are charged with the implementation of A.O. No. 308. On April 8, 1997, we issued a temporary restraining order enjoining its implementation.
Petitioner contends:
"A.THE ESTABLISHMENT OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUANCE OF A.O. NO. 308 BY THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE POWERS OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES. B.THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL USURPATION OF THE EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS FOR EXPENDITURE. C.THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS ENSHRINED IN THE CONSTITUTION." 2

Respondents counter-argue:
A.THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD WARRANT A JUDICIAL REVIEW; B.A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND ADMINISTRATIVE POWERS OF THE PRESIDENT WITHOUT ENCROACHING ON THE LEGISLATIVE POWERS OF CONGRESS; C.THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE IDENTIFICATION REFERENCE SYSTEM MAY BE SOURCED FROM THE BUDGETS OF THE CONCERNED AGENCIES; D.A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN PRIVACY.
3

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We now resolve. I As is usual in constitutional litigation, respondents raise the threshold issues relating to the standing to sue of the petitioner and the justiciability of the case at bar. More specifically, respondents aver that petitioner has no legal interest to uphold and that the implementing rules of A.O. No. 308 have yet to be promulgated. These submissions do not deserve our sympathetic ear. Petitioner Ople is a distinguished member of our Senate. As a Senator, petitioner is possessed of the requisite standing to bring suit raising the issue that the issuance of A.O. No. 308 is a usurpation of legislative power. 4 As taxpayer and member of the Government Service Insurance System (GSIS), petitioner can also impugn the legality of the misalignment of public funds and the misuse of GSIS funds to implement A.O. No. 308.5 The ripeness for adjudication of the petition at bar is not affected by the fact that the implementing rules of A.O. No. 308 have yet to be promulgated. Petitioner Ople assails A.O. No. 308 as invalid per se and as infirmed on its face. His action is not premature for the rules yet to be promulgated cannot cure its fatal defects. Moreover, the respondents themselves have started the implementation of A.O. No. 308 without waiting for the rules. As early as January 19, 1997, respondent Social Security System (SSS) caused the publication of a notice to bid for the manufacture of the National Identification (ID) card. 6 Respondent Executive Secretary Torres has publicly announced that representatives from the GSIS and the SSS have completed the guidelines for the national identification system. 7 All signals from the respondents show their unswerving will to implement A.O. No. 308 and we need not wait for the formality of the rules to pass judgment on its constitutionality. In this light, the dissenters insistence that we tighten the rule on standing is not a commendable stance as its result would be to throttle an important constitutional principle and a fundamental right. II

We now come to the core issues. Petitioner claims that A.O. No. 308 is not a mere administrative order but a law and hence, beyond the power of the President to issue. He alleges that A.O. No. 308 establishes a system
of identification that is all-encompassing in scope, affects the life and liberty of every Filipino citizen and foreign resident, and more particularly, violates their right to privacy.

Petitioner's sedulous concern for the Executive not to trespass on the lawmaking domain of Congress is understandable. The blurring of the demarcation line between the power of the Legislature to make laws and the power of the Executive to execute laws will disturb their delicate balance of power and cannot be allowed. Hence, the exercise by one branch of government of power belonging to another will be given a stricter scrutiny by this Court. The line that delineates Legislative and Executive power is not indistinct. Legislative power is "the authority, under the Constitution, to make laws, and to alter and repeal them." 8 The Constitution, as the will of the people in their original, sovereign and unlimited capacity, has vested this power in the Congress of the Philippines.9 The grant of legislative power to Congress is broad, general and comprehensive. 10 The legislative body possesses plenary power for all purposes of civil government. 11 Any power, deemed to be legislative by usage and tradition, is necessarily possessed by Congress, unless the Constitution has lodged it elsewhere. 12In fine, except as limited by the Constitution, either expressly or impliedly, legislative power embraces all subjects and extends to matters of general concern or common interest. 13

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While Congress is vested with the power to enact laws, the President executes the laws. 14 The executive power is vested in the President. 15 It is generally defined as the power to enforce and administer the laws. 16 It is the power of carrying the laws into practical operation and enforcing their due observance. 17 As head of the Executive Department, the President is the Chief Executive. He represents the government as a whole and sees to it that all laws are enforced by the officials and employees of his department. 18 He has control over the executive department, bureaus and offices. This means that he has the authority to assume directly the functions of the executive department, bureau and office, or interfere with the discretion of its officials. 19 Corollary to the power of control, the President also has the duty of supervising the enforcement of laws for the maintenance of general peace and public order. Thus, he is granted administrative power over bureaus and offices under his control to enable him to discharge his duties effectively. 20

Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs. 21 It enables the President to fix a uniform standard of administrative efficiency and check the official conduct of his agents. 22 To this end, he can issue administrative orders, rules and regulations. Prescinding from these precepts, we hold that A.O. No. 308 involves a subject that is not appropriate to be covered by an administrative order. An administrative order is:
"Sec. 3.Administrative Orders. Acts of the President which relate to particular aspects of governmental operation in pursuance of his duties as administrative head shall be promulgated in administrative orders." 23

An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of government. It must be in harmony with the law and should be for the sole purpose of implementing the law and carrying out the legislative policy. 24 We reject the argument that A.O. No.308 implements the legislative policy of the Administrative Code of 1987. The Code is a general law and "incorporates in a unified document the major structural, functional and procedural principles of governance" 25 and "embodies changes in administrative structures and procedures designed to serve the people." 26 The Code is divided into seven (7) Books: Book I deals with Sovereignty and General Administration, Book II with the Distribution of Powers of the three branches of Government, Book III on the Office of the President, Book IV on the Executive Branch, Book V on the Constitutional Commissions, Book VI on National Government Budgeting, and Book VII on Administrative Procedure. These Books contain provisions on the organization, powers and general administration of the executive, legislative and judicial branches of government, the organization and administration of departments, bureaus and offices under the executive branch, the organization and functions of the Constitutional Commissions and other constitutional bodies, the rules on the national government budget, as well as guidelines for the exercise by administrative agencies of quasi-legislative and quasi-judicial powers. The Code covers both the internal administration of government, i.e, internal organization, personnel and recruitment, supervision and discipline, and the effects of the functions performed by administrative officials on private individuals or parties outside government. 27

It cannot be simplistically argued that A.O. No. 308 merely implements the Administrative Code of 1987. It establishes for the first time a National Computerized Identification Reference System. Such a System requires a delicate adjustment of various contending state policies the primacy of national security, the extent of privacy interest against dossier-gathering by government, the choice of policies, etc. Indeed, the dissent of Mr. Justice Mendoza states that the A.O. No. 308 involves the all-important freedom of thought. As said administrative order redefines the parameters of some basic rights of our citizenry vis-a-vis the State as well 82

as the line that separates the administrative power of the President to make rules and the legislative power of Congress, it ought to be evident that it deals with a subject that should be covered by law. Nor is it correct to argue as the dissenters do that A.O. No. 308 is not a law because it confers no right, imposes no duty, affords no protection, and creates no office. Under A.O. No. 308, a citizen cannot transact business with government agencies delivering basic services to the people without the contemplated identification card. No citizen will refuse to get this identification card for no one can avoid dealing with government. It is thus clear as daylight that without the ID, a citizen will have difficulty exercising his rights and enjoying his privileges. Given this reality, the contention that A.O. No. 308 gives no right and imposes no duty cannot stand. Again, with due respect, the dissenting opinions unduly expand the limits of administrative legislation and consequently erodes the plenary power of Congress to make laws. This is contrary to the established approach defining the traditional limits of administrative legislation. As well stated by Fisher: ". . . Many regulations however, bear directly on the public. It is here that administrative legislation must be restricted in its scope and application. Regulations are not supposed to be a substitute for the general policy-making that Congress enacts in the form of a public law. Although administrative regulations are entitled to respect, the authority to prescribe rules and regulations is not an independent source of power to make laws." 28 III

Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still it cannot pass constitutional muster as an administrative legislation because facially it violates the right to privacy. The essence of privacy is the "right to be let alone." 29 In the 1965 case of Griswold v. Connecticut, 30 the United States Supreme Court
gave more substance to the right of privacy when it ruled that the right has a constitutional foundation. It held that there is a right of privacy which can be found within the penumbras of the First, Third, Fourth, Fifth and Ninth Amendments, 31 viz:
"Specific guarantees in the Bill of Rights have penumbras formed by emanations from these guarantees that help give them life and substance . . . Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'"

In the 1968 case of Morfe v. Mutuc, 32 we adopted the Griswold ruling that there is a constitutional right to privacy. Speaking thru Mr. Justice, later Chief Justice, Enrique Fernando, we held:
"xxx xxx xxx The Griswold case invalidated a Connecticut statute which made the use of contraceptives a criminal offense on the ground of its amounting to an unconstitutional invasion of the right of privacy of married persons; rightfully it stressed "a relationship lying within the zone of privacy created by several fundamental constitutional guarantees." It has wider implications though. The constitutional right to privacy has come into its own. So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection. The language of

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Prof. Emerson is particularly apt: 'The concept of limited government has always included the idea that governmental powers stop short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute state. In contrast, a system of limited government safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this private sector protection, in other words, of the dignity and integrity of the individual has become increasingly important as modern society has developed. All the forces of a technological age industrialization, urbanization, and organization operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society.'"

Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined in several provisions of our Constitution. 33 It is expressly recognized in Section 3(1) of the Bill of
Rights:
"Sec. 3.(1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law."

Other facets of the right to privacy are protected in various provisions of the Bill of Rights, viz:

34

"Sec. 1.No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. Sec. 2.The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. xxx xxx xxx Sec. 6.The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. xxx xxx xxx. Sec. 8.The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. Sec. 17.No person shall be compelled to be a witness against himself."

Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides that "[e]very

person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons" and punishes as actionable torts several acts by a person of meddling and prying into the privacy of another. 35 It also holds a public officer or employee or any private individual liable for damages for any violation of the rights and liberties of another person, 36 and recognizes the privacy of letters and other private communications. 37 The Revised Penal Code makes a crime the violation of secrets by an officer, 38 the revelation of trade and industrial secrets, 39 and trespass to dwelling. 40 Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, 41 the Secrecy of Bank Deposits Act42 and the Intellectual Property Code. 43 The Rules of Court on privileged communication likewise recognize the privacy of certain information. 44 84

Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental right guaranteed by the Constitution, hence, it is the burden of government to show that A.O. No. 308 is justified by some compelling state interest and that it is narrowly drawn. A.O. No. 308 is predicated on two considerations: (1)
the need to provide our citizens and foreigners with the facility to conveniently transact business with basic service and social security providers and other government instrumentalities and (2) the need to reduce, if not totally eradicate, fraudulent transactions and misrepresentations by persons seeking basic services. It is debatable whether these interests are compelling enough to warrant the issuance of A.O. No. 308. But what is not arguable is the broadness, the vagueness, the overbreadth of A.O. No. 308 which if implemented will put our people's right to privacy in clear and present danger. The heart of A.O. No. 308 lies in its Section 4 which provides for a Population Reference Number (PRN) as a "common reference number to establish a linkage among concerned agencies" through the use of "Biometrics Technology" and "computer application designs."

Biometry or biometrics is "the science of the application of statistical methods to biological facts; a mathematical analysis of biological data." 45 The term "biometrics" has now evolved into a broad category of technologies which provide precise confirmation of an individual's identity through the use of the individual's own physiological and behavioral characteristics. 46 A physiological characteristic is a relatively stable physical characteristic such as a fingerprint, retinal scan, hand geometry or facial features. A behavioral characteristic is
influenced by the individual's personality and includes voice print, signature and keystroke. 47 Most biometric identification systems use a card or personal identification number (PIN) for initial identification. The biometric measurement is used to verify that the individual holding the card or entering the PIN is the legitimate owner of the card or PIN. 48

A most common form of biological encoding is finger-scanning where technology scans a fingertip and turns the unique pattern therein into an individual number which is called a biocrypt. The biocrypt is stored in computer data banks 49 and becomes a means of identifying an individual using a service. This technology requires one's fingertip to be scanned every time service or access is provided. 50 Another method is the retinal scan. Retinal scan technology employs optical technology to map the capillary pattern of the retina of the eye. This technology produces a unique print similar to a finger print. 51 Another biometric method is known as the "artificial nose." This device chemically analyzes the unique combination of substances excreted from the skin of people. 52 The latest on the list of biometric achievements is the thermogram. Scientists have found that by taking pictures of a face using infrared cameras, a unique heat distribution pattern is seen. The different densities of bone, skin, fat and blood vessels all contribute to the individual's personal "heat signature." 53 In the last few decades, technology has progressed at a galloping rate. Some science fictions are now science facts. Today, biometrics is no longer limited to the use of fingerprint to identify an individual. It is a new science that uses various technologies in encoding any and all biological characteristics of an individual for identification. It is noteworthy that A.O. No. 308 does not state what specific biological characteristics and what particular biometrics technology shall be used to identify people who will seek its coverage. Considering the banquet of options available to the implementors of A.O. No. 308, the fear that it threatens the right to privacy of our people is not groundless.

A.O. No. 308 should also raise our antennas for a further look will show that it does not state whether encoding of data is limited to biological information alone for identification purposes. In fact, the Solicitor

General claims that the adoption of the Identification Reference System will contribute to the "generation of population data for development planning." 54 This is an admission that the PRN will not be used solely for identification but for the generation of other data with remote relation to the avowed purposes of A.O. No. 85

308. Clearly, the indefiniteness of A.O. No. 308 can give the government the roving authority to store and retrieve information for a purpose other than the identification of the individual through his PRN .

The potential for misuse of the data to be gathered under A.O. No. 308 cannot be underplayed as the dissenters do. Pursuant to said administrative order, an individual must present his PRN everytime he deals

with a government agency to avail of basic services and security. His transactions with the government agency will necessarily be recorded whether it be in the computer or in the documentary file of the agency. The individual's file may include his transactions for loan availments, income tax returns, statement of assets and liabilities, reimbursements for medication, hospitalization, etc. The more frequent the use of the PRN, the

better the chance of building a huge and formidable information base through the electronic linkage of the files. 55 The data may be gathered for gainful and useful government purposes; but the existence of this vast reservoir of personal information constitutes a covert invitation to misuse, a temptation that may be too great for some of our authorities to resist. 56

We can even grant, arguendo, that the computer data file will be limited to the name, address and other basic personal information about the individual. 57 Even that hospitable assumption will not save A.O. No. 308 from constitutional infirmity for again said order does not tell us in clear and categorical terms how these information gathered shall be handled. It does not provide who shall control and access the data, under what circumstances and for what purpose. These factors are essential to safeguard the privacy and guaranty the integrity of the information. 58 Well to note, the computer linkage gives other government agencies access to the information. Yet, there are no controls to guard against leakage of information. When the access code of the control programs of the particular computer system is broken, an intruder, without fear of sanction or penalty, can make use of the data for whatever purpose, or worse, manipulate the data stored within the system. 59 It is plain and we hold that A.O. No. 308 falls short of assuring that personal information which will be gathered about our people will only be processed forunequivocally specified purposes. 60 The lack of proper safeguards in this regard of A.O. No. 308 may interfere with the individual's liberty of abode and travel by enabling authorities to track down his movement; it may also enable unscrupulous persons to access confidential information and circumvent the right against self-incrimination; it may pave the way for "fishing expeditions" by government authorities and evade the right against unreasonable searches and seizures. 61 The possibilities of abuse and misuse of the PRN, biometrics and computer technology are

accentuated when we consider that the individual lacks control over what can be read or placed on his ID, much less verify the correctness of the data encoded. 62 They threaten the very abuses that the Bill of Rights seeks to prevent. 63
The ability of a sophisticated data center to generate a comprehensive cradle-to-grave dossier on an individual and transmit it over a national network is one of the most graphic threats of the computer revolution. 64 The computer is capable of producing a comprehensive dossier on individuals out of information given at different times and for varied purposes. 65 It can continue adding to the stored data and keeping the information up to date. Retrieval of stored data is simple. When information of a privileged character finds its way into the computer, it can be extracted together with other data on the subject. 66 Once extracted, the information is putty in the hands of any person. The end of privacy begins.
cdphil

Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting opinions would dismiss its danger to the right to privacy as speculative and hypothetical. Again, we cannot countenance such a laidback posture. The Court will not be true to its role as the ultimate guardian of the people's liberty if it would not immediately smother the sparks that endanger their rights but would rather wait for the fire that could consume them.

We reject the argument of the Solicitor General that an individual has a reasonable expectation of privacy with regard to the National ID and the use of biometrics technology as it stands on quicksand. The reasonableness
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of a person's expectation of privacy depends on a two-part test: (1) whether by his conduct, the individual has exhibited an expectation of privacy; and (2) whether this expectation is one that society recognizes as reasonable. 67 The factual circumstances of the case determines the reasonableness of the expectation. 68 However, other factors, such as customs, physical surroundings and practices of a particular activity, may serve to create or diminish this expectation. 69 The use of biometrics and computer technology in A.O. No. 308 does not assure the individual of a reasonable expectation of privacy. 70 As technology advances, the level of reasonably expected privacy decreases. 71 The measure of protection granted by the reasonable expectation diminishes as relevant technology becomes more widely accepted. 72 The security of the computer data file depends not only on the physical inaccessibility of the file but also on the advances in hardware and software computer technology. A.O. No. 308 is so widely drawn that a minimum standard for a reasonable expectation of privacy, regardless of technology used, cannot be inferred from its provisions.

The rules and regulations to be drawn by the IACC cannot remedy this fatal defect. Rules and regulations

merely implement the policy of the law or order. On its face, A.O. No. 308 gives the IACC virtually unfettered discretion to determine the metes and bounds of the ID System.

Nor do our present laws provide adequate safeguards for a reasonable expectation of privacy. Commonwealth
Act No. 591 penalizes the disclosure by any person of data furnished by the individual to the NSO with imprisonment and fine. 73 Republic Act No. 1161 prohibits public disclosure of SSS employment records and reports.74 These laws, however, apply to records and data with the NSO and the SSS. It is not clear whether they may be applied to data with the other government agencies forming part of the National ID System. The need to clarify the penal aspect of A.O. No. 308 is another reason why its enactment should be given to Congress.

Next, the Solicitor General urges us to validate A.O. No. 308's abridgment of the right of privacy by using the rational relationship test. 75 He stressed that the purposes of A.O. No. 308 are: (1) to streamline and speed up the implementation of basic government services, (2) eradicate fraud by avoiding duplication of services, and (3) generate population data for development planning. He concludes that these purposes justify the incursions into the right to privacy for the means are rationally related to the end. 76 We are not impressed by the argument. In Morfe v. Mutuc, 77 we upheld the constitutionality of R.A. 3019, the Anti-Graft and Corrupt Practices Act, as a valid police power measure. We declared that the law, in compelling a public officer to make an annual report disclosing his assets and liabilities, his sources of income and expenses, did not infringe on the individual's right to privacy. The law was enacted to promote morality in public administration by curtailing and minimizing the opportunities for official corruption and maintaining a standard of honesty in the public service. 78

The same circumstances do not obtain in the case at bar. For one, R.A. 3019 is a statute, not an administrative order. Secondly, R.A. 3019 itself is sufficiently detailed. The law is clear on what practices were prohibited and penalized, and it was narrowly drawn to avoid abuses. In the case at bar, A.O. No. 308 may have been impelled by a worthy purpose, but, it cannot pass constitutional scrutiny for it is not narrowly drawn. And we now hold that when the integrity of a fundamental right is at stake, this court will give the challenged law, administrative order, rule or regulation a stricter scrutiny. It will not do for the authorities to invoke the presumption of regularity in the performance of official duties. Nor is it enough for the authorities

to prove that their act is not irrational for a basic right can be diminished, if not defeated, even when the government does not act irrationally. They must satisfactorily show the presence of compelling state interests and that the law, rule, or regulation is narrowly drawn to preclude abuses. This approach is demanded by the

1987 Constitution whose entire matrix is designed to protect human rights and to prevent authoritarianism. In 87

case of doubt, the least we can do is to lean towards the stance that will not put in danger the rights protected by the Constitution. The case of Whalen v. Roe 79 cited by the Solicitor General is also off-line. In Whalen, the United States Supreme Court was presented with the question of whether the State of New York could keep a centralized computer record of the names and addresses of all persons who obtained certain drugs pursuant to a doctor's prescription. The New York State Controlled Substances Act of 1972 required physicians to identify patients obtaining prescription drugs enumerated in the statute, i.e., drugs with a recognized medical use but with a potential for abuse, so that the names and addresses of the patients can be recorded in a centralized computer file of the State Department of Health. The plaintiffs, who were patients and doctors, claimed that some people might decline necessary medication because of their fear that the computerized data may be readily available and open to public disclosure; and that once disclosed, it may stigmatize them as drug addicts. 80 The plaintiffs alleged that the statute invaded a constitutionally protected zone of privacy, i.e, the individual interest in avoiding disclosure of personal matters, and the interest in independence in making certain kinds of important decisions. The U.S. Supreme Court held that while an individual's interest in avoiding disclosure of personal matters is an aspect of the right to privacy, the statute did not pose a grievous threat to establish a constitutional violation. The Court found that the statute was necessary to aid in the enforcement of laws designed to minimize the misuse of dangerous drugs. The patient-identification

requirement was a product of an orderly and rational legislative decision made upon recommendation by a specially appointed commission which held extensive hearings on the matter. Moreover, the statute was narrowly drawn and contained numerous safeguards against indiscriminate disclosure. The statute laid down

the procedure and requirements for the gathering, storage and retrieval of the information. It enumerated who were authorized to access the data. It also prohibited public disclosure of the data by imposing penalties for its violation. In view of these safeguards, the infringement of the patients' right to privacy was justified by a valid exercise of police power. As we discussed above, A.O. No. 308 lacks these vital safeguards.

Even while we strike down A.O. No. 308, we spell out in neon that the Court is not per se against the use of computers to accumulate, store, process, retrieve and transmit data to improve our bureaucracy. Computers

work wonders to achieve the efficiency which both government and private industry seek. Many information systems in different countries make use of the computer to facilitate important social objectives, such as better law enforcement, faster delivery of public services, more efficient management of credit and insurance programs, improvement of telecommunications and streamlining of financial activities. 81 Used wisely, data stored in the computer could help good administration by making accurate and comprehensive information for those who have to frame policy and make key decisions. 82The benefits of the computer has revolutionized information technology. It developed the internet, 83 introduced the concept of cyberspace 84 and the information superhighway where the individual, armed only with his personal computer, may surf and search all kinds and classes of information from libraries and databases connected to the net.

In no uncertain terms, we also underscore that the right to privacy does not bar all incursions into individual privacy. The right is not intended to stifle scientific and technological advancements that enhance public service and the common good. It merely requires that the law be narrowly focused 85 and a compelling interest
justify such intrusions. 86 Intrusions into the right must be accompanied by proper safeguards and well-defined standards to prevent unconstitutional invasions. We reiterate that any law or order that invades individual privacy will be subjected by this Court to strict scrutiny. The reason for this stance was laid down in Morfe v.Mutuc, to wit:
"The concept of limited government has always included the idea that governmental powers stop short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute state. In contrast, a system of limited government safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public

88

sector, which the state can control. Protection of this private sector protection, in other words, of the dignity and integrity of the individual has become increasingly important as modern society has developed. All the forces of a technological age industrialization, urbanization, and organization operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society." 87

IV

The right to privacy is one of the most threatened rights of man living in a mass society. The threats emanate

from various sources governments, journalists, employers, social scientists, etc. 88 In the case at bar, the threat comes from the executive branch of government which by issuing A.O. No. 308 pressures the people to surrender their privacy by giving information about themselves on the pretext that it will facilitate delivery of basic services. Given the record-keeping power of the computer, only the indifferent will fail to perceive the danger that A.O. No. 308 gives the government the power to compile a devastating dossier against unsuspecting citizens. It is timely to take note of the well-worded warning of Kalvin, Jr., "the disturbing result could be that everyone will live burdened by an unerasable record of his past and his limitations. In a way, the threat is that because of its record-keeping, the society will have lost its benign capacity to forget." 89Oblivious to this counsel, the dissents still say we should not be too quick in labelling the right to privacy as a fundamental right. We close with the statement that the right to privacy was not engraved in our Constitution for flattery. IN VIEW WHEREOF, the petition is granted and Administrative Order No. 308 entitled "Adoption of a National Computerized Identification Reference System" declared null and void for being unconstitutional. SO ORDERED.

Bellosillo and Martinez, JJ ., concur. Regalado, J ., in the result.

[G.R. No. 157286. June 16, 2006.] THE PUBLIC SCHOOLS DISTRICT SUPERVISORS ASSOCIATION (PSDSA), its officers, to wit: DR. ANILLA A. CALAMBA, President; DR. CARMELITA L. PALABAY, Gen. Vice-President; MS. ESTELITA R. REYES, Board Secretary; DR. THELMA A. GALANG, Asst. Board Secretary; MR. FERNANDO LAVITA, Treasurer; MS. LITA DIONISIO, Asst. Treasurer; MS. ROSELILY PADRE, Auditor; MR. ROMAN CALICDAN, Asst. Auditor; MR. TOMO-AY, MR. OSCAR PEAFLORIDA, Bus. Managers; DR. ANTONETTE ANG, DR. MAGNITA LABRADOR, P.R.O.'S; MR. BONIFACIO MIGUEL (Region I), MR. JOSE CALAGUI (Region II), DR. REYNALDO SAGUM (Region III), MR. RUBEN PANAHON (Region IV), MR. OSCAR BARBA (Region V), MS. IRMA GANELA (Region VI), DR. ERLINDA NAPULI (Region VII), DR. PONCIANO GABIETA (Region VIII), MR. FEDERICO FIDEL (Region IX), MR. EMILIANO V. RODRIGUEZ (Region X), MS. EDWINA ALAG (Region XI), MR. DOMINADOR ATAM (Region XII), MS. CONSUELO VELASCO (NCR), MR. VICTORINO AGMATA (CAR), MS. NATIVIDAD SALASAB (ARMM-CARAGA), All PSDSA Vice-Presidents for their respective Regions: DR. LOLITA CABANAYAN, MR. CICERO AKLANG, DR. RUSTICO OCAMPO, MR. ROMEO SANTOS, MR. EMMANUEL 89

CAMA, MR. ROMEO TUMAOB, MR. JOVENCIO MENDOZA, MR. ALEJANDRO BARING, JR., MS. BERNARDITA APOSTOL, MS. LORETA MACALUDAS, DR. MYRNA LYN MARACON, MS. ELIZABETH SAN DIEGO, SITH HINDRON DAMMANG, MS. IMMACULADA BRINGAS, and MS. GLORIA DERECHO, all members of the PSDSA Board of Directors, in their own behalf as current District Supervisors and IN REPRESENTATION OF ALL DISTRICT SUPERVISORS OF THE DEPARTMENT OF EDUCATION, petitioners, vs. HON. EDILBERTO C. DE JESUS, Department Secretary, THE DEPARTMENT OF EDUCATION, and THE DEPARTMENT OF BUDGET AND MANAGEMENT, respondents.

DECISION

CALLEJO, SR., J :
p

This is a Petition for Prohibition with prayer for temporary restraining order and/or preliminary injunction filed by the Public Schools District Supervisor Association (PSDSA) seeking to declare as unconstitutional Rule IV, Section 4.3; Rule V, Sections 5.1 and the second paragraph of Section 5.2; and Rule VI, Section 6.2, paragraph 11 of Department of Education Order No. 1, Series of 2003. The petition likewise seeks to compel, by way of a writ of mandamus, the Department of Education, Culture, and Sports (DECS) and the Department of Budget and Management (DBM) to upgrade the salary grade level of the district supervisors from Salary Grade (SG) 19 to SG 24. The Antecedents Ever since the Department of Education (DepEd) 1 was founded decades ago, its management had been so centralized in the Manila office. Schools in the national, regional, and division levels merely followed and implemented the orders and memoranda issued by the Education Secretary. Due to the evolution of the learning process and the onset of information technology, there was a need for a radical change in the governance of the DepEd. Thus, a study on how to improve the management of the Department was conducted, and one of the proposals was the abolition of the office of the district supervisor. Then Senator Tessie Aquino-Oreta, the Chairman of the Committee on Education, authored Senate Bill No. 2191, the thrust of which was to change the existing management style and focus on the schools where the teaching-learning process occurs. The bill was intended to highlight shared governance in the different levels in the DECS hierarchy and establish authority, accountability, and responsibility for achieving higher learning outcomes. While the governance of basic education would begin at the national level, the field offices (regions, divisions, schools, and learning centers) would translate the policy into programs, projects, and services to fit local needs. 2 The national level was likewise to be tasked to define the roles and responsibilities of, and provide resources to the field offices which would implement educational programs, projects, and services in communities they serve. 3 At the forefront would be the DepEd Secretary, vested with the overall authority and supervision over the operations of the department on the national, regional, division, and schools district level. 4 Republic Act No. 9155, otherwise known as the "Governance of Basic Education Act 2001," became a law on August 11, 2001, in accordance with Section 27(1), Article VI of the Constitution. Under the law, each regional office shall have a director, an assistant director, and an office staff for program promotion and support, planning, administrative and fiscal services. 5 The regional director was given the authority to hire, place and evaluate all employees in the regional office except for the position of assistant director, 6 as well as the 90

authority, accountability, and responsibility to determine the organization component of the divisions and districts, and approve the staffing pattern of all employees therein; 7 evaluate all division superintendents and assistant division superintendents in the region; 8 and other functions as may be assigned by the proper authorities. 9 A division, on the other hand, is headed by a schools division superintendent with the following responsibilities, among others: to supervise the operations of all public and private elementary, secondary, and integrated schools, and learning centers; 10 to hire, place and evaluate all division supervisors and schools district supervisors as well as all employees in the divisions, both teaching and non-teaching personnel, including school heads, except for the assistant division superintendent; 11 and perform other functions as may be assigned by proper authorities. 12 The office of the schools district supervisor has been retained under the law. Each district is headed by a school district supervisor and an office staff for program promotion. However, the responsibilities of the schools district supervisor are limited to the following: (1) providing professional and instructional advice and support to the school heads and teachers/facilitators of schools and learning centers in the district or cluster thereof; (2) curricula supervision; and (3) performing such other functions as may be assigned by proper authorities. The schools district supervisors have no administrative, management, control or supervisory functions over the schools and learning centers within their respective districts. 13 On the school level, an Elementary School Principal (ESP) was designated as school head for all public elementary schools; and a Secondary School Principal (SSP) for high schools or a cluster thereof. 14 The ESP and the SSP serve as both instructional leaders and administrative managers with the following authority, accountability and responsibility:
(7)Administering and managing all personnel, physical, and fiscal resources of the school; (8)Recommending the staffing complement of the school based on its needs; (9)Encouraging staff development; xxx xxx xxx (11)Accepting donations, gifts, bequests, and grants for the purpose of upgrading teachers'/learning facilitators' competencies, improving and expanding school facilities, and providing instructional materials and equipment. Such donations or grants must be reported to the appropriate district supervisors and division superintendents; and
HICcSA

(12)Performing such other functions as may be assigned by proper authorities.

15

Under Section 14 of the law, the DepEd Secretary is mandated to "promulgate the implementing rules and regulations within ninety (90) days after the approval of the Act, provided that the principle of shared governance shall be fully implemented within two (2) years" after such approval. Before the DepEd could issue the appropriate implementing rules and regulations, petitioner sought the legal assistance of the Integrated Bar of the Philippines (IBP) National Committee on Legal Aid to make representations for the resolution of the following administrative issues:
1.Restoration of the functions, duties, responsibilities, benefits, prerogatives, and position level of Public Schools District Supervisors.

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2.Upgrading of Salary Grade level of Public Schools District Supervisors from Salary Grade Level 19 to Salary Grade Level 24 under DBM Circular No. 36, otherwise known as the Compensation and Position Classification Rules and Regulation. 16

In a Letter dated March 1, 2002 addressed to then DepEd Secretary Raul Roco, the IBP stated that, per its review of the documents submitted by the PSDSA, it found the latter's position valid and legal, to wit:
First: The basis for the abolition of the position of District Supervisors under the Attrition Law and DECS Department Order No. 110, Series of 1991 is no longer valid and rendered moot and academic due to issuance of DECS Department Order No. 22, Series of 1996 and the passage by Congress of the Philippines of Republic Act No. 9155, otherwise known as the Basic Education Governance Act of 2000. Under R.A. 9155, school districts are mandated to be maintained and responsibilities of Public School's Districts Supervisors have been clearly defined. Second: There is a clear case of discrimination of grant of salaries and benefits to District Supervisors compared to salaries and benefits received by the School Principals which position is lower in the hierarchy of positions as prepared by the Department of Education and the Department of Budget and Management. School Principals and District Supervisors enjoy the same level of Salary Grade even if the latter position is considered as a promotion and enjoys a higher level of position than that of the position of School Principals. 17

The PSDSA thus requested the DepEd Secretary to call an immediate consultation with the district supervisors nationwide through a convention, and their valid inputs be considered in formulating the rules and regulations to be urged by the DepEd. However, the Secretary failed to reply. Thus, the IBP reiterated the concerns raised by the PSDSA in a Letter 18 to the DepEd dated April 15, 2002.

On January 6, 2003, DepEd Secretary Edilberto C. De Jesus issued DECS Office Order No. 1, which constitutes the Implementing Rules and Regulations (IRR) of R.A. No. 9155. Sections 4.1 to 4.3, Rule IV of the IRR provide:
SECTION 4.1.The Schools Division Superintendent. A division shall consist of a province or city which shall have a schools division superintendent. There shall be at least one assistant schools division superintendent and office staff for programs promotion, planning, administrative, fiscal, legal, ancillary, and other support services. SECTION 4.2.Authority, Accountability, and Responsibility of the Schools Division Superintendent. Consistent with the national educational policies, plans, and standards, the schools division superintendents shall have authority, accountability, and responsibility for the following: 1)Developing and implementing division education development plans; 2)Planning and managing the effective and efficient performance of all personnel, physical, and fiscal resources of the division, including professional staff development; 3)Hiring, placing, and evaluating all division supervisors and schools district supervisors as well as all employees in the division, both teaching and non-teaching personnel, including school heads, except for the assistant division superintendents; 4)Monitoring the utilization of funds provided by the national government and the local government units to the schools and learning centers;

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5)Ensuring compliance of quality standards for basic education programs and for this purpose strengthening the role of division supervisors as subject area specialists; 6)Promoting awareness of, and adherence by, all schools and learning centers to accreditation standards prescribed by the Secretary of Education; 7)Supervising the operations of all public and private elementary, secondary, and integrated schools, and learning centers; and 8)Performing such other functions as may be assigned by the Secretary and/or Regional Director. SECTION 4.3.Appointing and Disciplinary Authority of the Schools Division Superintendent. The schools district superintendent shall appoint the division supervisors and school district supervisors as well as all employees in the division, both teaching and non-teaching personnel, including school heads, except for the assistant schools division superintendent, subject to the civil service laws, rules and regulations, and the policies and guidelines to be issued by the Secretary of Education for the purpose. The schools division superintendent shall have disciplinary authority only over the non-teaching personnel under his jurisdiction. Such exercise of disciplinary authority by the schools division superintendent over the non-teaching personnel shall be subject to the civil service laws, rules and regulations, and procedures and guidelines to be issued by the Secretary of Education relative to this matter. The Regional Director shall continue exercising disciplinary authority over the teaching personnel insofar as the latter are covered by specific and exclusive disciplinary provisions under the Magna Carta for Public School Teachers (R.A. No. 4670). 19

Sections 5.1 and 5.2, Rule V of the IRR, in turn, provide:

SECTION 5.1.The Schools District Supervisor. A school district shall have a school district supervisor and office staff for program promotion. The schools district supervisor shall primarily perform staff functions and shall not exercise administrative supervision over school principals, unless specifically authorized by the proper authorities. The main focus of his/her functions shall be instructional and curricula supervision aimed at raising academic standards at the school level. The schools district supervisor shall be specifically responsible for: 1)Providing professional and instructional advice and support to the school heads and teachers/facilitators of schools and learning centers in the district or cluster thereof; 2)Curricula supervision; and 3)Performing such other functions as may be assigned by the Secretary, Regional Directors, and Schools Division Superintendents where they belong. The schools district supervisor being mentioned in this section shall refer to a public schools district supervisor.

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SECTION 5.2.The School District. A school district already existing at the time of the passage of this Act shall be maintained. However, an additional school district may be established by the regional director based on criteria set by the Secretary and on the recommendation of the schools division superintendent. For this purpose, the Secretary of Education shall set standards and formulate criteria as basis of the Regional Directors of the establishment of an additional school district. 20

On March 13, 2003, the PSDSA, the national organization of about 1,800 public school district supervisors of the DepEd, in behalf of its officers and members, filed the instant petition for prohibition and mandamus, alleging that:
I.THE ACT OF THE DEPARTMENT OF EDUCATION IN REMOVING PETITIONERS' ADMINISTRATIVE SUPERVISION OVER ELEMENTARY SCHOOLS AND ITS PRINCIPALS (SCHOOL HEADS) WITHIN HIS/HER DISTRICT AND CONVERTING HIS/HER ADMINISTRATIVE FUNCTION TO THAT OF PERFORMING STAFF FUNCTION FOR THE DIVISION OFFICE PER SECTION 5.1 RULE V OF THE IMPLEMENTING RULES AND REGULATIONS OF REPUBLIC ACT 9155 (DEPED ORDER NO. 1, SERIES OF 2003) IS A GROSS VIOLATION OF REPUBLIC ACT 9155 THE GOVERNANCE OF BASIC EDUCATION ACT OF 2001.
DAaEIc

II.THE IMPLEMENTING RULES AND REGULATION OF REPUBLIC ACT 9155 AS PROMULGATED UNDER DEPED ORDER NO. 1, SERIES OF 2003 EXPANDED THE LAW AND INCLUDED PROVISIONS WHICH ARE DIAMETRICALLY OPPOSED TO THE LETTER AND SPIRIT OF THE SUBJECT LAW. III.THE DOWNGRADING OF SALARY GRADE LEVEL OF THE PUBLIC SCHOOLS DISTRICT SUPERVISOR OR THE NEGLECT OR REFUSAL OF THE DEPARTMENT OF EDUCATION AND THE DEPARTMENT OF BUDGET AND MANAGEMENT TO UPGRADE THE SALARY GRADE LEVEL OF PUBLIC SCHOOLS DISTRICT TO A RESPECTABLE LEVEL OF SALARY GRADE HIGHER THAN THAT OF THE PRINCIPALS DESPITE CLEAR INTENTION OF R.A. 9155 TO RETAIN THE POSITION OF PSDS IN THE HIERARCHY OF ADMINISTRATIVE MANAGERS AND OFFICERS OF THE DEPARTMENT OF EDUCATION IS UNCONSTITUTIONAL AND ILLEGAL. 21

Petitioners maintain that the questioned provisions of the IRR are invalid because they "extended or expanded and modified" the provisions of R.A. No. 9155. They argue that the said law should be read in harmony with other "existing educational laws" which it did not specifically repeal, such as Batas Pambansa Blg. 232, otherwise known as "The Education Act of 1982," as amended by R.A. No. 7798; R.A. No. 4670, otherwise known as the "Magna Charta for Public School Teachers"; and R.A. No. 7784 captioned "An Act to Strengthen Teacher Education in the Philippines by Establishing Centers of Excellence, Creating a Teacher Education Council for the Purpose, Appropriating Funds Therefore, and for Other Purposes." Petitioners assert that under Section 7(D) of R.A. No. 9155, the district offices of the DepEd are intended as field offices where the district supervisors can assist the ESPs and teachers/learning facilitators within their district as experienced educational managers. Thus, the district supervisors were not divested of the inherent administrative functions to manage and oversee the schools within their respective districts, including their subordinates. They emphasize that the law provides an "office staff for program promotion" in the school districts, which would be of no use if the office has no administrative supervision over schools within its respective districts. Petitioners assert that under the IRR, the schools district supervisors primarily perform staff functions and shall

not exercise administrative supervision over school principals, unless specifically authorized by the proper authorities. Thus, under the IRR, the exercise of administrative supervision over school principals was made
discretionary and subject to the whims and caprices of "the proper authorities." The logical inference of this provision, petitioners aver, is that the administrative supervisory powers can be withdrawn from a district supervisor without any reason at all, a provision which has no basis in the enabling law.

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Petitioners further contend that the DepEd has no authority to incorporate its plan of downgrading the position of district supervisor, that is, from being an administrator of a particular district office to a position performing a staff function, to exercise administrative supervision over the school principals only when specifically authorized by proper authorities. Petitioners insist that respondent Education Secretary was focused on removing the level of management in the district office, such that the IRR empower school heads (principals) to have administrative and instructional supervision of school or cluster of schools, while supervision of all public and private elementary, secondary, and integrated schools and learning centers was given to the division office. Petitioners further insist that respondent Education Secretary failed to consider the fact that R.A. No. 9155 strengthened the district office as a mid-level administrative field office of the DepEd. The law even mandates to allow the district supervisor to have an office staff for program promotion in the district office. Apart from the current administrative functions inherent in the district office, DECS Service Manual 2000 vested additional specific functions to the district offices, to provide professional and instructional advice and support to the school heads and teachers/facilitators of schools and learning centers in the district, as well as curricula supervision. Petitioners posit that R.A. No. 9155 did not, in anyway, allow or authorize the reorganization of the entire DepEd; it never reduced the position, rank, classification, and salary grade level of district supervisors, nor abolished the district offices which are responsible for the administration and management of elementary schools within its jurisdiction. It did not remove from the district supervisors the function of administrative supervision over schools within their respective areas. In fact, petitioners insist, what the law did was to give the district supervisor additional responsibility of providing professional and instructional advice and support to the school heads and teachers/facilitators of schools and learning centers in the district or cluster thereof.

Petitioners point out that under Section 4.3, paragraph (b), Rule IV of the IRR, the schools division superintendent was given the power to appoint the division supervisors and schools district supervisor and other employees subject to civil service laws, rules, and regulations, and the policies and guidelines to be issued by the Secretary of Education for the purpose. On the other hand, the school division superintendent shall have disciplinary authority only over the non-teaching personnel under his jurisdiction. Such exercise of disciplinary authority by the schools division superintendent over the non-teaching personnel shall be subject to civil service laws, rules, and regulations, and procedures and guidelines to be issued by the Secretary of Education relative to this matter. The regional director shall continue exercising disciplinary authority over the teaching personnel in so far as the latter are covered by specific and exclusive disciplinary provisions under the Magna Carta for Public School Teachers (R.A. 4670). Petitioners posit that this grant of disciplining authority to the regional director for teaching personnel who commit violations of laws, rules, and regulations is definitely not provided for in R.A. No. 9155. The division superintendent was given the power not only to hire and appoint the division supervisors, district supervisors, school heads, or principals as well as employees in the division, both teaching and non-teaching positions. However, when it comes to disciplining officers and teaching personnel who commit infractions or violations of law, rules, and regulations of the DepEd, the exercise of such disciplining authority is lodged in the hands of the regional director. Petitioners point out that the power to hire teachers is in the hands of the division superintendent; principles of administrative rules and procedure provide that the authority to hire and appoint carries with it the authority to discipline and fire the hired and appointed personnel particularly if the law is silent thereon. Since the division superintendent has the authority to hire teaching personnel within its division, he/she should also take the responsibility of disciplining erring teachers and employees. If the set-up of placing the power of hiring and power to discipline or fire an errant personnel is separated or divided between two offices of the DepEd, the proliferation of "palakasan" or "bata-bata" system will flourish, to the detriment of the public education system and public service. 95

Petitioners also point out that under Section 7(E)(11) of R.A. No. 9155, school heads are authorized to accept gifts, donations, bequests, and grants for the purpose of upgrading teacher's/learning facilitator's competencies, improving and expanding school facilities and providing instructional materials and equipment, which, in turn, shall be reported to the appropriate district supervisors and division superintendents. However, under Section 6.2(11), Rule VI of the IRR, on the authority, accountability, and responsibility of school heads, district supervisors were deleted as one of the administrative officers to whom such reporting is to be made. Petitioners conclude that to the extent that the division superintendents are not mandated to report donations and grants to district supervisors, the IRR is void. On their plea for mandamus, petitioners pray that the Court compel the DepEd and the DBM to upgrade their present salary grade. They claim that the position of an ESP is already classified as SG 21, which is higher by two grades than that of district supervisors, SG 19. Considering their higher position in the department's pecking order, vis--vis that of the ESPs, petitioners opine that to rectify the present grade-level distortion, their salary grade should be upgraded to SG 24. 22 For its part, the Office of the Solicitor General (OSG) avers that a perusal of Section 7(D) of R.A. No. 9155 shows that the district supervisor has limited responsibilities, and that the power to exercise administrative supervision over the ESPs is not covered by any of those responsibilities. The Education Secretary is the disciplining authority in the DepEd, with the regional directors acting as the disciplining authority in their respective regions. As to petitioners' gripe that the IRR deleted district supervisors from among those school heads who should report when "[a]ccepting donations, gifts, bequests, and grants for the purpose of upgrading teachers'/learning facilitators' competencies, improving and expanding school facilities, and providing instructional materials and equipment," the OSG avers that this reportorial function is "directory" and merely for "convenience." Anent petitioners' grievance on their alleged stagnant salary grade level, the OSG points out that the same is "already provided for under FY 2003 GAA, [thus], petitioners' complaint against the non-increase of their SG level is already moot and academic." The OSG also emphasizes that the upgrading of the ESP's salary grade over the petitioners is not violative of petitioners' right to equal protection of the law, since "district supervisors and ESPs are not similarly situated." In reply, petitioners contend that the upgrading of the salary grade level of district supervisors to SG 21 is an admission by the DepEd and by the DBM of the validity of their demand to increase their salary grade to a respectable SG 24.
IcAaEH

The petition is partially granted. It must be stressed that the power of administrative officials to promulgate rules in the implementation of a statute is necessarily limited to what is provided for in the legislative enactment. 23 The implementing rules and regulations of a law cannot extend the law or expand its coverage, as the power to amend or repeal a statute is vested in the legislature. 24 It bears stressing, however, that administrative bodies are allowed under their power of subordinate legislation to implement the broad policies laid down in a statute by "filling in" the details. All that is required is that the regulation be germane to the objectives and purposes of the law; that the regulation does not contradict but conforms with the standards prescribed by law. 25 Moreover, as a matter of policy, this Court accords great respect to the decisions and/or actions of administrative authorities not only because of the doctrine of separation of powers but also for their presumed knowledgeability and expertise in the enforcement of laws and regulations entrusted to their jurisdiction. 26 The rationale for this rule relates not only to the emergence of the multifarious needs of a modern or modernizing society and the establishment of diverse administrative agencies for addressing and satisfying those needs; it also relates to the accumulation 96

of experience and growth of specialized capabilities by the administrative agency charged with implementing a particular statute. 27 We have reviewed the IRR and find that Section 4.3 of Rule IV, and Sections 5.1 and 5.2 of Rule V are valid. The provisions merely reiterate and implement the related provisions of R.A. No. 9155. Under the law, a division superintendent has the authority and responsibility to hire, place, and evaluate all division supervisors and district supervisors as well as all employees in the division, both teaching and non-teaching personnel, including school heads. 28 A school head is a person responsible for the administrative and instructional supervision of the schools or cluster of schools. 29 The division superintendent, on the other hand, supervises the operation of all public and private elementary, secondary, and integrated schools and learning centers. 30 Administrative supervision means "overseeing or the power or authority of an officer to see that their subordinate officers perform their duties. If the latter fails or neglects to fulfill them, the former may take such action or steps as prescribed by law to make them perform their duties." 31 A plain reading of the law will show that the schools district supervisors have no administrative supervision over the school heads; their responsibility is limited to those enumerated in Section 7(D) of R.A. No. 9155, to wit:
(1)Providing professional and instructional advice and support to the school heads and teachers/facilitators of schools and learning centers in the district or cluster thereof; (2)Curricula supervision; and (3)Performing such other functions as may be assigned by proper authorities.

As gleaned from the Senate deliberations on Senate Bill No. 2191, the district supervisors were divested of any administrative supervision over elementary and public high schools. The Senate resolved to vest the same in the division superintendents, and the Lower House concurred. Senator Rene Cayetano proposed that the traditional function of the school supervisors of exercising administrative supervision over the elementary and public high schools be maintained. However, Senator Tessie Aquino-Oreta, the Chairperson of the Senate Committee on Education and the Sponsor of the Bill, objected to such proposal:
The President: Why do we not say AND SHALL NOT BE INCLUDED? Senator Cayetano: Yes, better yet, Mr. President. I thank the Chair for that amendment. The President: All right. Can we approve that? The sponsor accepts the amendment, I assume. Senator Aquino-Oreta: Yes, Mr. President. The President:

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Is there any objection from the floor? (Silence) There being none, the amendment is approved. Senator Cayetano: Thank you, Mr. President. In line 17, it ends with the conjunction "and." I would like to propose an amendment by inserting a new paragraph (b). This is, of course, the duties and responsibilities of schools district supervisors. It is to SUPERVISE SCHOOL PRINCIPALS IN THE DISTRICT, because right now, this is exactly their job. Again, the reality is, there are efforts to minimize, if not remove, the principal function of school supervisors, which is to supervise school principals in the district. I just want it to be there to ensure that their primary functions remain as such.

Therefore, what appears as paragraph (b) in line 18 will now be subparagraph (c). The President: What does the sponsor say? Senator Aquino-Oreta: Mr. President, may I just explain. There are two school supervisors. One is for the academic function and the other is for the administrative function. As such, if these two supervisors will dictate to the principals, then our thrust in reducing the level of bureaucracy might not be met. Also, the thrust of this governance bill really is to flesh out the importance of the school as the heart of education here. In that heart, we have the teacher, the student, and the school head. What we are trying to do here is to bring to the forefront the school itself. In fact, right now, there is a move in the DECS to do away with the school supervisor in charge of administrative and leave that function to the principal. If the principal, the school head will be dictated upon by these two school supervisors, we might not be able to achieve what we want to do here putting to the forefront the school itself. Meaning, putting to the forefront the school head, the teacher, and the student. Senator Cayetano: Mr. President, I would like to thank the sponsor for that enlightenment. That is precisely my point. Not too long ago, I was a speaker before the school supervisors all over the land. One of the points that they complained about was, in most cases, their job to supervise school principals is now being removed or have been removed simply because and I may be inaccurate here the Japanese government I know it is a foreign government that funded a study of the organizational setup of the DECS has recommended the abolition of school supervisors. This is the reason this representation would like to ensure that the traditional function of the school supervisors, among which is to supervise school principals, remain as such. What is good for the Japanese education is not necessarily good for the Philippines. This representation knows that this is precisely one of the complaints of the school supervisors.

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The lady sponsor admitted that, indeed, there is an effort to phase out the school supervisors. That is precisely my point, Mr. President. I do not want the school supervisors to be phased out simply because a foreign government which funded the study of our education has suggested it. The President: What does the sponsor say? Senator Aquino-Oreta: Mr. President, actually, it is not Japanese. It is an ADB proposal to the DECS. The DECS had a study made on how to improve the management order of the DECS. That was one of the proposals. They gave three proposals. One of them was to take out the school supervisors. But precisely, Mr. President, we are not doing that, we are not taking them out. What we are saying is for the school supervisor to focus on the curriculum because in the administration of the affairs of the school, we are saying that the principal knows best how to administer or how to run the school better. And so, we are saying here that school supervisors will be there contrary to the view of that ADB study. We will maintain them, but the focus of the school supervisors will be on the curriculum of the schools.
AIaHES

Senator Cayetano: Mr. President, again I thank the lady senator. But again let us look at who supervisors of schools are. Supervisors of schools once upon a time were all school principals. They rose from the ranks, that is why they are fully aware of the administrative as well as the instructional capability of the principals now who are under them. To remove their right to supervise, now it is the ADB, I am correct, the lady senator is correct because as I said I was not sure to remove this traditional function would really render the supervisors practically without anything to do. That is why they are now being justified that henceforth there will be no principals that will be promoted as school supervisors because when the school supervisors reach the age of retirement and retire, no principals shall be promoted to that level. But these school supervisors now, Mr. President, were once upon a time in their professional lives principals, and they know best how the schools should be run administratively and instructionally. That is the reason for that, Mr. President. The President: What does the sponsor say? Senator Cayetano: So, may I ask the sponsor to accept this, Mr. President. Senator Aquino-Oreta: Mr. President, what was the amendment? Senator Cayetano: To insert a new paragraph, paragraph (b) in line 18, which states: SUPERVISE SCHOOL PRINCIPALS IN THE DISTRICT.

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The President: May I suggest, THE SUPERVISION OF SCHOOL PRINCIPALS IN THE DISTRICT, because Senator Cayetano: Yes, Mr. President. The President: the antecedent for that is, "The schools district supervisor shall be responsible for." Senator Cayetano: That is right, Mr. President. Supervision, yes. The President: What does the sponsor say? Senator Aquino-Oreta: Mr. President, may I have one minute? SUSPENSION OF SESSION Senator Tatad: Mr. President, I move that we suspend the session for one minute. The President: Is there any objection? (Silence) There being none, the session is suspended for one minute. It was 5:33 p.m. RESUMPTION OF SESSION At 5:43 p.m., the session was resumed. The President: The session is resumed. SUSPENSION OF CONSIDERATION OF S. NO. 2191 Senator Tatad: Mr. President, we are still trying to find a way out of these conflicting points of view on the role of the supervisor. To allow the parties to have a little more time to work on this, I move that we suspend consideration of Senate Bill No. 2191. (Underscoring supplied) 32

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When the session resumed, Senator Cayetano no longer pursued his proposed amendment, and moved instead that the same be amended to read "Curricula Supervision." The Senate approved the proposal of the Senator:
The President: The session is resumed. Senator Cayetano is recognized. CAYETANO AMENDMENT Senator Cayetano: Thank you, Mr. President. With the permission of the lady senator, after consulting her and the Majority Leader, I would like to propose an amendment by rewording the original amendment I was proposing last night. The reworded proposed amendment would be like this: CURRICULA SUPERVISION. The President: That would be on what page? Senator Cayetano: That would be on page 10, line 17, as a new paragraph (b). The President: And how will it read? Senator Cayetano: CURRICULA SUPERVISION. The President: Just that? Senator Cayetano: Just that, Mr. President. Senator Tatad: Put a semicolon (;). Senator Cayetano: And because of that, line 18 which is paragraph (b), should now be paragraph (c). The President:

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What does the sponsor say? Senator Aquino-Oreta: The amendment is accepted, Mr. President. (Underscoring supplied)
33

Thus, under R.A. No. 9155, administrative supervision over school heads is not one of those responsibilities conferred on district supervisors. It is a settled rule of statutory construction that the express mention of one person, thing, act, or consequence excludes all others. This rule is expressed in the familiar maxim expressio unius est exclusio alterius. Where a statute, by its terms, is expressly limited to certain matters, it may not, by interpretation or construction, be extended to others. The rule proceeds from the premise that the legislature would not have made specified enumerations in a statute had the intention been not to restrict its meaning and to confine its terms to those expressly mentioned. 34 It is not surprising that Senator Aquino-Oreta maintained her position that district supervisors should not have administrative control or even supervision over ESPs and SSPs. As early as 1990, the DECS had adopted the policy that, effective January 1, 1991, the positions of district supervisors and division supervisors would be gradually phased out by not filling-up these positions as they become vacant. 35 On September 17, 1991, then DECS Secretary Isidro Cario issued DECS Order No. 110, Series of 1991, declaring that, to foster better considerations and articulation of progress in the elementary level, all elementary school principals shall report directly to the school division superintendents. In his Order dated June 22, 1994, then DECS Secretary Armand V. Fabella declared that DECS Order No. 110 shall remain in effect, with the recommendation that, in order to facilitate the phase-out of district supervisor positions, incumbent district supervisors were encouraged to transfer to vacant division supervisor positions, provided they meet the qualification standards for such positions. 36 For his part, in his DECS Order No. 22, Series of 1996, DECS Secretary Ricardo T. Gloria restored the district supervisor positions but only on a selective basis and subject to the following guidelines:
a)Schools superintendents, with the concurrence/approval of their regional directors, may have the option to restore the position in selected districts after a careful evaluation of need. For this purpose, the number of schools and their geographical location and distance for effective monitoring, the availability of regular transportation, urban-rural setting, etc., should be considered in the decision.
ITAaHc

b)The role of the district supervisor as an instructional leader and resource for teachers, rather than merely as an administrative supervisor, should be emphasized in their functions and duties. c)In the event of restoration and appointment of the position in a particular district, the school superintendent shall ensure that the system of field supervision previous to the issuance of DECS Orders No. 110, s. 1991 and No. 41, s. 1994 shall, likewise, be restored. Correspondingly, the designation of coordinating principals in affected districts shall be withdrawn. d)Should a division office opt not to restore some or all district supervisor positions, the funds for such positions may be used to create new positions or upgrade existing positions, subject to the approval of the Department of Budget and Management.

e)Considering that a number of vacated district supervisor positions in some divisions may have been converted to other positions and/or otherwise phased out since 1991, appointments of district

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supervisors shall be issued by regional directors only upon verification from the Department of Budget and Management that the said position may be filled. It is enjoined that regional directors and schools superintendents shall exert special effort to ensure that the implementation of this Order shall be harmonious and conducive to field supervision. 37

Under DECS Order No. 36, Series of 1998 issued by DECS Secretary Erlinda C. Pefianco, the positions of district supervisors were restored to their original status as a supervisory level in the DECS administrative hierarchy subject to the following guidelines:
1.1The positions of Education and District Supervisors are hereby restored to their original status as a supervisory level in the DECS administrative hierarchy, subject to the following guidelines: 1.1.1The functions of a district supervisor as an instructional leader and resource person for teachers should be emphasized. In the event of restoration and appointment of public schools district supervisor, the designation of the coordinating principal shall be withdrawn. Appointment of district supervisors shall be issued by regional directors only upon verification from the Department of Budget and Management that the positions still exist since a number of vacated district supervisor positions in some divisions may have been converted to other positions and/or otherwise phased out since 1991. 38

However, as already stated, the Senate resolved to maintain the positions of district supervisors but limited their responsibilities only to those enumerated in Section 7(D) of R.A. No. 9155 to conform to the basic thrust and objectives of the law. Far from strengthening the office of the district supervisors as a mid-head field office of the DepEd, the law limited the authority and responsibility attached to such position. While it is true that the district supervisor is given a support staff for program promotion, it cannot thereby be implied that he/she likewise has administrative supervision over ESPs and SSPs. Such a construction has no basis in law and in fact. Indeed, such a construction of the statute defeats the very purpose of the law. It is a basic precept that the intent of the legislature is the controlling factor in the interpretation of the statute. The particular words, clauses, and phrases should not be studied as detached and isolated expression, but the whole and every part of the statute must be considered in fixing the meaning of any of its parts and in order to produce a harmonious whole. 39 Besides, Congress enumerated the duties and responsibilities of a district supervisor. Congress would not have made specific enumerations in a statute if it had the intention not to restrict or limit its meaning and confine its terms only to those expressly enumerated. Courts may not, in the guise of interpretation, enlarge the scope of a statute and include situations not provided nor intended by Congress. 40 The submission of the OSG, that the schools district supervisors have the administrative supervision over school heads, is more in accord with the law, to wit:
Section 7 of RA 9155, on School District Level, pertinently provides that "a school district shall have a school district supervisor and an office staff for program promotion," and that the schools district supervisor shall be responsible for: (1) "(p)roviding professional and instructional advice and support to

the school heads and teachers/facilitators of schools and learning centers in the district [or] cluster thereof;" (2) "(c)urricula supervision;" and, (3) "(p)erforming such other functions as may be assigned by the proper authorities."

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A perusal of Section 7 shows that the District Supervisor has limited responsibilities, and that the power to exercise administrative supervision over the ESPs is not covered by responsibility nos. 1 and 2. Neither is that power covered by the directive that the District Supervisor shall have an office staff for program promotion. The only logical conclusion, therefore, that can be derived from the aforesaid enumeration of responsibilities is that the District Supervisor may only exercise administrative supervision over ESPs when such function is assigned by proper authorities. And, since the DepEd Secretary specifically declared through the IRR of RA 9155, that the District Supervisor shall not exercise administrative supervision over the ESPs, unless otherwise authorized, petitioners cannot complain against the said declaration. On this score, it is settled that the intent of the statute is the law (Philippine National Bank v. Office of the President, 252 SCRA 5 [1996]). In the absence of legislative intent to the contrary, words and phrases used in a statute should be given their plain, ordinary and common usage meaning (Mustang Lumber, Inc. v. Court of Appeals, 257 SCRA 430 [1996]). Needless to say, Section 7, on Division Level, further provides that the School Division Superintendent shall have authority, accountability and responsibility for, among others, "(s)upervising the operation of all public and private elementary, secondary and integrated schools, and learning centers ." To claim, therefore, that the District Supervisor has administrative supervision over the ESPs would also violate the above-quoted provision. 41

The Court likewise declares that the last paragraph of Section 4.3 of the IRR, stating that the regional director shall continue exercising disciplinary authority over the teaching personnel insofar as the latter are covered by specific and exclusive disciplinary provisions under R.A. No. 4670 ("Magna Carta for Public School Teachers") does not contravene R.A. No. 9155. Indeed, the IRR merely reiterates the DECS Rules of Procedure, DECS Order No. 33, issued on March 30, 1999 by the DepEd Secretary, and R.A. No. 4670 which was approved on June 18, 1966, and pursuant to Section 7, Chapter II, Book IV of the 1987 Administrative Code, which provides that the DepEd Secretary is empowered to
a.Promulgate rules and regulations necessary to carry out department objectives, policies, functions, plans, programs, and projects; and b.Promulgate administrative issuances necessary for the efficient administration of the offices under the Secretary and for execution of the laws relative thereto.

Additionally, the IRR was issued by the DepEd Secretary pursuant to Section 7(A)(1) of R.A. No. 9155, which mandates that the Secretary formulate national educational policies and enhance the employment status, professional competence, welfare, and working conditions of all the DepEd personnel. 42 We agree that R.A. No. 9155 does not provide who has disciplinary authority over the teaching personnel of the DepEd. However, under Section 3, Chapter III of DECS Order No. 33, Series of 1999, otherwise known as the 1999 DECS Rules of Procedure, the disciplining authority in the DECS is the DepEd Secretary, with the regional directors acting as such in their respective regions except those appointed by the President. 43 The officers and employees referred to in the Rules of Procedure include teachers who, under R.A. No. 4670, shall mean:
. . . all persons engaged in classroom teaching, in any level of instruction, on full-time basis, including guidance counselors, school librarians, industrial arts, or vocational instructors, and all other persons performing supervisory and/or administrative functions in all schools, colleges and universities operated by the Government or its political subdivisions; but shall not include school nurses, school physicians, school dentists, and other school employees.

A division superintendent of schools is not a disciplining authority over teachers, whether under R.A. No. 4670 or under the DECS Rules of Procedure. In fact, under Section 2, Chapter VII of such Rules of Procedure, a 104

division superintendent is a chairperson of the investigating committee over formal complaints filed against such teachers:
a)When the respondent is an elementary or secondary school teacher, head teacher, principal, district supervisor/chair/coordinator or Education Supervisor I (1)The schools division superintendent or his or her duly authorized representative, as chairperson; (2)The duly authorized representative of the school, district, or division teacher's organization, as member; and (3)The division supervisor for elementary or secondary education where the respondent belongs, as member.

The foregoing rule is based on Section 9 of R.A. No. 4670 which reads:
Sec. 9.Administrative Charges. Administrative charges against a teacher shall be heard initially by a committee composed of the corresponding School Superintendent of the Division or a duly authorized representative who should, at least, have the rank of a division supervisor, where the teacher belongs, as chairman, a representative of the local or, in its absence, any existing provincial or national teacher's organization and a supervisor of the Division, the last two to be designated by the Director of Public Schools. The committee shall submit its findings and recommendations to the Director of Public Schools within thirty days from the termination of the hearings: Provided, however, That where the school superintendent is the complainant or an interested party, all the members of the committee shall be appointed by the Secretary of Education.
HScaCT

Anent the issue on reporting of acceptance of donations, Section 7(E)(11) of R.A. No. 9155 provides:
(11)Accepting donations, gifts, bequests, and grants for the purpose of upgrading teachers'/learning facilitators' competencies, improving and expanding school facilities, and providing instructional materials and equipment. Such donations or grants must be reported to the appropriate district supervisors and division superintendents. (emphasis supplied)

However, Section 6.2(11), Rule VI of the IRR provides that:

(11)Accepting donations, gifts, bequests, and grants in accordance with existing laws and policy of the Department for the purpose of upgrading teachers'/learning facilitators' competencies, improving and expanding school facilities, and providing instructional materials and equipment. Such donations or grants must be reported to the division superintendents. (emphasis supplied)

We agree with petitioners' contention that, under the law, donations and grants must be reported to the appropriate district supervisors and not only to the division superintendents. The use in the law of the word "must" is an expression of the mandatory nature of the reporting of donations and grants to district supervisors. The reason for the provision is that such grants and donations which are intended to upgrade teachings/learning facilitators' competencies, improve and expand school facilities, and provide instructional materials and equipment will assist the school district supervisors in the performance of their duties and responsibilities under Section 7(D) of R.A. No. 9155, and submit appropriate recommendations to the proper administrative officers.

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On petitioner's plaint of the failure of respondents to upgrade their salary grade level to at most SG 21, and for the issuance of the writ of mandamus mandating respondents to increase their salary grade from SG 19 to 24, the same is premature. There is no showing in the petition that, before filing their petition, petitioners sought an adjustment of level of their salary grade from SG 19 to SG 21 before respondents or the Civil Service Commission. Section 17 of Presidential Decree No. 985, as amended by Section 14 of R.A. No. 6758, otherwise known as the Salary Standardization Law, provides:
Sec. 17.Powers and Functions. The Budget Commission (now Department of Budget and Management), principally through the OCPC (now CPCB, Compensation and Position Classification Board) shall, in addition to those provided under other Sections of this Decree, have the following powers and functions: a.Administer the compensation and position classification system established herein and revise it as necessary; xxx xxx xxx f.Certify classification actions and changes in class or grade of positions whenever the facts warrant, such certification to be binding on administrative, certifying, payroll, disbursing, accounting and auditing officers of the national government and government-owned or controlled corporations and financial institutions.

Sections 10 and 11 of R.A. No. 9155 provide:

SEC. 10.The Secretary of Education and the Secretary of Budget and Management shall, within ninety (90) days from the approval of this Act, jointly promulgate the guidelines on the allocation, distribution, and utilization of resources provided by the national government for the field offices, taking into consideration the uniqueness of the working conditions of the teaching service. The Secretary of the Department of Education shall ensure that resources appropriated for the field offices are adequate and that resources for school personnel, school desks, and textbooks and other instructional materials intended are allocated directly and released immediately by the Department of Budget and Management to said offices. SEC. 11.The Secretary of the Department of Education, subject to civil service laws and

regulations, shall issue appropriate personnel policy rules and regulations that will best meet the requirements of the teaching profession taking into consideration the uniqueness of the working conditions of the teaching service.

And insofar as the salary system for teaching positions is concerned, Section 14 provides:
SEC. 14.The Salary System for Teaching Position. The salary grade of a teacher shall be determined in accordance with the following: a.The Teachers' Preparation Pay Schedule shall be prepared by the Commission in consultation with the Department of Education and Culture. Under this system, the teacher's academic or educational preparation, teaching experience in both private and public schools, and extra-curricular activities for professional growth, shall be considered in pursuance of the principle of 'equal pay for equal training and experience.' xxx xxx xxx

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d.The Budget Commission, in coordination and consultation with the Department of Education and Culture and the Civil Service Commission may, when future needs require, modify, change or otherwise improve on the salary system herein established for the teaching and closely related occupations, any change that may be made as provided herein shall become part of the implementing rules of this Decree to be issued by the Budget Commission upon prior approval by the President.

Moreover, the issue of whether or not respondents should be compelled to adjust upwards the salary grade of petitioners to SG 21 has become moot and academic, because, on November 3, 2003, the DepEd and the DBM issued Joint Circular No. 1, Series of 2003 containing the guidelines in the implementation of the Salary Upgrading for District and Education Supervisors, to wit:
4.0GUIDELINES 4.1To maintain the previous salary grade relationships under RA No. 6758 among the PSDS and ES I, on the one hand, and Elementary School Principal (ESP) IV and Secondary School Principal (SSP) II, on the other hand, and to preserve the consistency in the salary grade relationships of said positions, the following are hereby authorized: 4.1.1Upgrading of the PSDS and ES I positions from SG-19 to SG-20 in July 2003 and to SG-21 in July 2004; 4.1.2Upgrading of the ES II positions by two (2) salary grades from SG-20 to SG-21 in July 2003 and to SG-22 in July 2004; 4.1.3A one-step salary adjustment to incumbents of ES III positions starting July 2003 and another one-step salary adjustment starting July 2004; 4.1.4A one-step salary adjustment to incumbents of CES positions starting July 2003 and another one-step salary adjustment starting July 2004. 4.2Attached herewith is Annex A containing the summary of the guidelines for the salary upgrading of positions authorized herein. 5.0SALARY RULES 5.1For purposes of the salary upgrading herein authorized, the basic salary of the employee concerned shall be adjusted as follows: 5.1.1Effective July 1, 2003 at the same salary step of his assigned salary grade as of June 30, 2003 (Illustrative Example A) adopting the Salary Schedule prescribed under National Budget Circular (NBC) No. 474 (Annex B); 5.1.2Effective July 1, 2004 at the same salary step of his assigned salary grade as of June 30, 2004 (Illustrative Example A) adopting the Salary Schedule prescribed under National Budget Circular (NBC) No. 474 (Annex B). 5.2The transition allowance as defined in 3.2 being received by the PSDS and ES, if any, shall be considered as advance entitlement of the salary increase herein authorized. (Illustrative Examples B and C) 5.3No step adjustment shall be granted to incumbents of positions whose salary already falls at or exceeds the maximum step (eighth step) of the salary grade allocation of their positions. (Illustrative Example D)

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5.4The herein salary increases shall be effected through the issuance of a Notice of Salary Adjustment (NOSA) by the duly authorized official. (Annex C) 6.0FUNDING SOURCE The amounts necessary to implement the salary adjustments authorized herein shall be charged against the Nationwide lump sum appropriation for the purpose amounting to fifty million pesos (P50,000,000) in the DepEd's budget in RA 9206, the CY 2003 General Appropriations Act. For CY 2004, the same shall be charged against the lump sum appropriation for the purpose that may be included in the 2004 budget. 7.0POST-AUDIT Any salary adjustment paid under this Circular shall be subject to post-audit by the DBM ROs concerned. Any payments thereof which are not in accordance herewith shall be adjusted accordingly. 8.0CONTRIBUTIONS The salary adjustments authorized herein are subject to the mandatory requirements for life and retirement premiums, and health insurance premiums.
DIECTc

9.0SAVING CLAUSE Conflicts arising from the implementation of the provisions of this Circular shall be resolved by the Department of Education, upon prior consultation with the Department of Budget and Management. 10.0EFFECTIVITY This Circular Letter shall take effect on July 1, 2003.

IN VIEW OF ALL THE FOREGOING, the petition for prohibition is PARTIALLY GRANTED. Joint Circular No. 1, Series of 2003 is declared valid, except Section 6.2(11), Rule VI thereof which provides that "donations or grants shall be reported only to the division superintendents." Such donations or grants must also be reported to the appropriate school district supervisors, as mandated by Republic Act No. 9155. Petitioners' prayer for the issuance of a writ of mandamus is DENIED for lack of merit. No costs. SO ORDERED.

Panganiban, C.J., Puno, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, Tinga, Chico-Nazario, Garcia and Velasco, Jr., JJ.,concur. Ynares-Santiago, J., is on leave.

[G.R. Nos. L-42783-85. November 29, 1976.] CARIDAD CRUZ DE SYQUIA, petitioner, vs. BOARD OF POWER AND WATER WORKS (formerly Public Service Commission), RAFAEL J. RUIZ, PETER ENRIQUEZ and CYRIL D. MOSES, respondents. 108

Enrique O. Chan for petitioner. Zosimo Rivas for private respondents.

DECISION

TEEHANKEE, J :
p

The Court sets aside respondent board's orders ruling upon the complaints of the three private respondentstenants of petitioner's apartment building that petitioner may not charge them pro rata the extra cost of electricity consumed for the building's common areas and facilities such as the elevator and servants' quarters. The question of the proportionate amount that each tenant should bear for the additional electricity cost for common facilities of the apartment building used by the tenants in common is purely civil in character, (involving the conditions of lease between landlord and tenant), to be adjudged under the applicable civil laws exclusively by the regular courts of general jurisdiction and is beyond the jurisdiction of respondent board. In December, 1974, private respondents filed three separate complaints with respondent Board of Power and Waterworks charging petitioner as administrator of the South Syquia Apartments at Malate, Manila with the offense of selling electricity without permit or franchise issued by respondent board, in that petitioner billed respondents-complainants various specified amounts for their electricity consumption at their respective apartments for the months of May to September, 1974 in excess of the Meralco rates authorized by respondent board.
LexLib

Petitioner's motion to dismiss the complaints asserting that they involved contractual obligations of respondents as apartment tenants and were beyond respondent board's jurisdiction was denied by the latter. Petitioner thereupon filed her answer, wherein she again questioned the complaints as beyond the jurisdiction of respondent as a regulatory board, since she is not engaged in the sale of electric power but merely passes to the apartment tenants as the end-users their legitimate electric current bills in accordance with their lease contracts, and their relationship is contractual in nature. Petitioner added that the tenants including respondents had no complaint under the contractual set-up of billings for water and electric service consumption, whereby while individual electric meters are installed in each apartment, Meralco billings include all consumption in the entire compound, including the common areas, servants' quarters and elevators, the payment for which was advanced by petitioner and later collected by way of reimbursement from the tenants pro rata; but that respondents alone complained later when on account of the energy crisis, additional fuel adjustment costs were added by Meralco to their billings which were likewise passed on by petitioner to all the tenants pro rata. As stated in respondent board's questioned order of August 28, 1975, petitioner further manifested her willingness to abide by such computations as respondent board may determine to be the correct electric billing that should be charged against complainants-respondents for their respective electric consumption and submitted pertinent records of the electrical consumption and Meralco billings. Respondent board in said order however came up with its computation which would allow petitioner to charge respondents only the cost of electricity registered in their individual apartment meters and disallow the actual cost of additional electricity charged them pro rata by petitioner for the cost of electricity consumed by all tenants in the common areas.

109

When petitioner pointed out in her motion for reconsideration that respondent board's computation would not reimburse petitioner for the cost of the electric consumption in the common areas and elevators with a resultant loss to her at the least of P1,250.00 a month or P15,000.00 a year and reiterated that this was a contractual obligation of the tenants over which respondent regulatory board had no jurisdiction, the board, acting through its Acting Chairman alone, Cesar S. de Guzman, (as seems to be the case with all the board actions herein involved) denied reconsideration and ruled that
"It is the considered opinion of this Board, that since the tenants complainants) are already paying rentals for the use of their rooms and for the cost of their electricity within their rooms, they should no longer be required to pay for the extra cost of electricity in common areas such as the elevator and the servants' quarters, for it is only fair and equitable that the cost of electricity for common areas such as the elevator and servants' quarters be shouldered alone by the owner of the building as part of the cost for the rentals being paid by the tenants (complainants). . . ."

Hence, the petition at bar, wherein petitioner raises the basic question of the board's lack of jurisdiction, aside from the error of its action based on the admitted facts.
LLpr

The Court required comment and private respondents as well as respondent board's counsel filed their comments simply assuming the board's jurisdiction and supported its questioned orders. Also required to comment, Acting Solicitor General Hugo E. Gutierrez, Jr. concurred with petitioner and submitted that respondent regulatory board acted without jurisdiction over the subject-matter of the complaints, succinctly stating the State's position as follows:
"Since the petitioner does not operate, manage or control the power plant and furthermore, since electricity is directly and uninterruptedly supplied to the end-user, it cannot be correctly claimed that the petitioner is selling electricity nor can she be considered a middleman in the electric power business. "The dispute between the petitioner landlord and her tenants as to how much each tenant should be correspondingly billed, for the actual electricity consumed and as to the proportionate amount each tenant should bear for the common facilities used in the apartments, if such amounts should be borne by the tenants at all, is an issue affecting mathematical computations and conditions of lease between landlord and tenant."

The Court resolved to treat the petition as a special civil action and to grant the petition. Under the reorganization plan effected by Presidential Decree No. 1 as amended by Presidential Decree No. 458 issued on May 16, 1974, jurisdiction, supervision and control over public service related to electric light, power and waterworks utilities formerly vested in the Public Service Act 1 were transferred to respondent board. Respondent board as a regulatory board manifestly exceeded its jurisdiction in taking cognizance of and adjudicating the complaints filed by respondents against petitioner. Respondent board acquired no jurisdiction over petitioner's contractual relations with respondentscomplainants as her tenants, since petitioner is not engaged in a public service nor in the sale of electricity without permit or franchise. Respondents' complaints against being charged the additional cost of electricity for common facilities used by the tenants (in addition to those registered in their respective apartment meters) give rise to a question that is purely civil in character that is to be adjudged under the applicable provisions of the Civil Code (not the Public Service Act) and not by the respondent regulatory board which has no jurisdiction but by the regular courts of general jurisdiction. 110

Respondent board in resolving the complaints against petitioner and requiring her to absorb the additional rising costs of electricity consumed for the common areas and elevator service even at a resultant loss of P15,000.00 a year arrogated the judicial function. Its orders were beyond its jurisdiction and must be set aside as null and void.
prLL

ACCORDINGLY, the questioned orders of respondent board are annulled and the complaints of private respondents are ordered dismissed, With costs against private respondents. SO ORDERED. Makasiar, Muoz Palma, Concepcion, Jr. and Martin, JJ., concur.

[G.R. No. L-27520. January 21, 1987.] GLOBE WIRELESS LTD., petitioner, vs. PUBLIC SERVICE COMMISSION and ANTONIO B. ARNAIZ, respondents.

RESOLUTION

G.R. No. 27520 [Globe Wireless Ltd., vs. Public Service Commission and Antonio B. Arnaiz]. Challenged in this petition for certiorari is the jurisdiction of the defunct Public Service Commission [PSC] under Section 21 of Commonwealth Act No. 146, as amended, to discipline and impose a fine upon petitioner, Globe Wireless, Ltd., a duly-organized Philippine corporation engaged in international telecommunication business under a franchise granted by Public Acts Nos. 3495, 3692 and 4150, as amended by Republic Act No. 4630. A message addressed to Maria Diaz, Monte Esquina 30, Madrid, Spain, filed by private respondent Antonio B. Arnaiz with the telegraph office of the Bureau of Telecommunications in Dumaguete City was transmitted to the Bureau of Telecommunications in Manila. It was forwarded to petitioner Globe Wireless Ltd. for transmission to Madrid. Petitioner sent the message to the American Cable and Radio Corporation in New York, which, in turn, transmitted the same to the Empresa Nacional de Telecommunicaciones in Madrid. The latter, however, mislaid said message, resulting in its non-delivery to the addressee. After being informed of said fact, private respondent Arnaiz sent to then Public Service Commissioner Enrique Medina an unverified letter-complaint relating the incident. The complaint was docketed as PSC Case No. 6539-OC and petitioner was required to answer the same, Petitioner, in its answer, questioned PSC's jurisdiction over the subject matter of the letter-complaint, even as it denied liability for the non-delivery of the message to the addressee.
prcd

Hearing ensued, after which the PSC issued an order finding petitioner "responsible for the inadequate and unsatisfactory service complained of, in violation of the Public Service Act" and ordering it "to pay a fine of TWO HUNDRED [P200.00] PESOS under Sec. 21 of Com. Act 146, as amended." Petitioner was likewise required to refund the sum of P19.14 to the remitter of the undelivered message. [Annex "C", Petition, p, 23, Rollo] Its motion for reconsideration having been denied, petitioner instituted the instant petition. 111

We find for petitioner. Verily, Section 13 of Commonwealth Act No. 146, as amended, otherwise known as the Public Service Act, vested in the Public Service Commission jurisdiction, supervision and control over all public services and their franchises, equipment and other properties. However, Section 5 of Republic Act No. 4630, the legislative franchise under which petitioner was operating, limited respondent Commission's jurisdiction over petitioner only to the rate which petitioner may charge the public. Thus,
"Sec. 5.The Public Service Commission is hereby given jurisdiction over the grantee only with respect to the rates which the grantee may charge the public subject to international commitments made or adhered to by the Republic of the Philippines." (Emphasis supplied.)

The act complained of consisted in petitioner having allegedly failed to deliver the telegraphic message of private respondent to the addressee in Madrid, Spain. Obviously, such imputed negligence had nothing whatsoever to do with the subject matter of the very limited jurisdiction of the Commission over petitioner. Moreover, under Section 21 of C.A. No. 146, as amended, the Commission was empowered to impose an administrative fine in cases of violation of or failure by a public service to comply with the terms and conditions of any certificate or any orders, decisions or regulations of the Commission. Petitioner operated under a legislative franchise, so there were no terms nor conditions of any certificate issued by the Commission to violate. Neither was there any order, decision or regulation from the Commission applicable to petitioner that the latter had allegedly violated, disobeyed, defied or disregarded.
llcd

Too basic in administrative law to need citation of jurisprudence is the rule that the jurisdiction and powers of administrative agencies, like respondent Commission, are limited to those expressly granted or necessarily implied from those granted in the legislation creating such body; and any order without or beyond such jurisdiction is void and ineffective. The order under consideration belonged to this category. ACCORDINGLY, the instant petition is hereby granted and the order of respondent Public Service Commission in PSC Case No. 65-39-OC is set aside for being null and void.

[G.R. No. L-12426. February 16, 1959.] PHILIPPINE LAWYER'S ASSOCIATION, petitioner, vs. CELEDONIO AGRAVA, in his capacity as Director of the Philippines Patent Office, respondent.

Arturo A. Alafriz for petitioner. Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent.
SYLLABUS 1.ATTORNEYS AT LAW; PRACTICE OF LAW; BEFORE PATENT OFFICE. Practice of law in the Philippines includes such appearance before the Patent Office, the representation of applicants, oppositors, and other persons, and the prosecution of their applications for patent, their oppositions thereto or the enforcement of their rights in patent cases. 112

2.ID.; ID.; ID.; WITHOUT FURTHER EXAMINATION. A member of the bar, because of his legal knowledge and training should be allowed to practice before the Patent Office, without further examination or other qualification. 3.ID.; ID.; ID.; REASON. Under the present law, members of the Philippine Bar authorized by the Supreme Court to practice law, and in good standing, may practice their profession before the Patent Office, for the reason that much of the business in said office involves the interpretation and determination of the scope and application of the patent law and other laws applicable as well as the presentation of evidence to establish facts involved. That part of the functions of the Patent Director are judicial or quasijudicial, so much so that appeals from his orders and decision are under the law taken to the Supreme Court.

DECISION

MONTEMAYOR, J :
p

This is a petition filed by the Philippine Lawyer's Association for prohibition and injunction against Celedonio Agrava, in his capacity as Director of the Philippines Patent Office. On May 27, 1957, respondent Director issued a circular announcing that he had scheduled for June 27, 1957 an examination for the purpose of determining who are qualified to practice as patent attorneys before the Philippines Patent Office, the said examination to cover patent law and jurisprudence and the rules of practice before said office. According to the circular, members of the Philippine Bar, engineers and other persons with sufficient scientific and technical training are qualified to take the said examination. It would appear that heretofore, respondent Director has been holding similar examinations. It is the contention of the petitioner Philippine Lawyer's Association that one of the petitioner Philippine Lawyer's Association that one who has passed the bar examinations and is licensed by the Supreme Court to practice law in the Philippines and who is in good standing, is duly qualified to practice before the Philippines Patent Office, and that consequently, the act of the respondent Director requiring members of the Philippine Bar in good standing to take and pass an examination given by the Patent Office as a condition precedent to their being allowed to practice before said office, such as representing applicants in the preparation and prosecution of applications for patent, is in excess of his jurisdiction and is in violation of the law. In his answer, respondent Director, through the Solicitor General, maintains that the prosecution of patent cases "does not involve entirely or purely the practice of law but includes the application of scientific and technical knowledge and training, so much so that, as a matter of actual practice, the prosecution of patent cases may be handled not only by lawyers, but also by engineers and other persons with sufficient scientific and technical training who pass the prescribed examinations as given by the Patent Office; . . . that the Rules of Court do not prohibit the Patent Office, or any other quasi-judicial body from requiring further condition or qualification from those who would wish to handle cases before such bodies, as in the prosecution of patent cases before the Patent Office which, as stated in the preceding paragraph, requires more of an application of scientific and technical knowledge than the mere application of provisions of law; . . . that the action taken by the respondent is in accordance with Republic Act No. 165, otherwise known as the Patent Law of the Philippines, which is similar to the United States Patent Law, in accordance with which the United States Patent Office has also prescribed a similar examination as what prescribed by respondent. . . . ." Respondent further contends that just as the Patent Law of the United States of America authorizes the Commissioner of Patents to prescribe examinations to determine as to who may practice before the 113

United States Patent Office, the respondent, is similarly authorized to do so by our Patent Law, Republic Act No. 165. Although as already stated, the Director of Patents, in the past, would appear to have been holding tests or examinations the passing of which was imposed as a required qualification to practice before the Patent Office, to our knowledge, this is the first time that the right of the Director of Patents to do so, specially as regards members of the bar, has been questioned formally, or otherwise put in issue. And we have given it careful thought and consideration. The Supreme Court has the exclusive and constitutional power with respect to admission to the practice of law in the Philippines 1 and any member of the Philippine Bar in good standing may practice law anywhere and before any entity, whether judicial or quasi-judicial or administrative, in the Philippines. Naturally, the question arises as to whether or not appearance before the Patent Office and the preparation and prosecution of patent applications, etc., constitutes or is included in the practice of law.
"The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings and other papers incident to actions and special proceedings, the management of such actions and proceedings on behalf of clients before judges and courts, and in addition, conveying. In general, all advice to clients, and all action taken for them in matters connected with the law incorporation services, assessment and condemnation services contemplating an appearance before a judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy and insolvency proceedings, and conducting proceedings in attachment, and in matters of estate and guardianship have been held to constitute law practice, as do the preparation and drafting of legal instruments, where the work done involves the determination by the trained legal mind of the legal effect of facts and conditions." (5 Am. Jur. p. 262, 263). (Italics supplied) "Practice of law under modern conditions consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety of subjects, and the preparation and execution of legal instruments covering an extensive field of business and trust relations and other affairs. Although these

transactions may have no direct connection with court proceedings, they are always subject to become involved in litigation. They require in many aspects a high degree of legal skill, a wide experience with

men and affairs, and great capacity for adaptation to difficult and complex situations. These customary functions of an attorney or counselor at law bear an intimate relation to the administration of justice by the courts. No valid distinction, so far as concerns the question set forth in the order, can be drawn between that part of the work of the lawyer which involves appearance in court and that part which involves advice and drafting of instruments in his office. It is of importance to the welfare of the public that these manifold customary functions be performed by persons possessed of adequate learning and skill, of sound moral character, and acting at all times under the heavy trust obligations to clients which rests upon all attorneys." (Moran, Comments on the Rules of Court, Vol. 3 (1953 ed.), p. 665-666, citing In re Opinion of the Justices (Mass.), 194 N. E. 313, quoted in Rhode Is. Bar Assoc. vs. Automobile Service Assoc. (R. I.) 179 A. 139, 144). (Emphasis supplied)

In our opinion, the practice of law includes such appearance before the Patent Office, the representation of applicants, oppositors, and other persons, and the prosecution of their applications for patent, their oppositions thereto, or the enforcement of their rights in patent cases. In the first place, although the transaction of business in the Patent Office involves the use and application of technical and scientific knowledge and training, still, all such business has to be conducted and all orders and decisions of the Director of Patents have to be rendered in accordance with the Patent Law, as well as other laws, including the Rules and Regulations promulgated by the Patent Office in accordance with law. Not only this, but practice before the Patent Office involves the interpretation and application of other laws and legal principles, as well as the existence of facts to be established in accordance with the law of evidence and procedure. For instance: Section 8 of our Patent Law provides that an invention shall not be patentable if it is contrary to public order or morals, or to public health or welfare. Section 9 says that an invention shall not be considered new or patentable if it was known or used by others in the Philippines before the invention thereof by the inventor named in the application for patent, or if it was patented or described in any printed publication in the Philippines or any foreign country more than one year before the application 114

for a patent therefor, or if it had been in public use or on sale in the Philippines for more than one year before the application for the patent therefor. Section 10 provides that the right to the patent belongs to the true and actual inventor, his heirs, legal representatives or assigns, and Section 12 says that an application for a patent may be filed only by the inventor, his heirs, legal representatives or assigns. Section 25 and 26 refer to correction of any mistake in a patent. Section 28 enumerates the grounds for cancellation of a patent; that although any person may apply for such cancellation, under Section 29, the Solicitor General is authorized to petition for the cancellation of a patent. Section 30 mentions the requirements of a petition for cancellation. Sections 31 and 32 provide for a notice of hearing of the petition for cancellation of the patent by the Director of Patents in case the said cancellation is warranted. Under Section 34, at any time after the expiration of three years from the day the patent was granted, any person may apply for the grant of a license under a particular patent on several grounds, such as, if the patented invention is not being worked in the Philippines on a commercial scale, or if the demand for the patented article in the Philippines is not being met to an adequate extent and reasonable terms, or if by reason of the patentee's refusal to grant a license on reasonable terms or by reason of the conditions attached by him to the license, purchase, lease or use of the patented article or working of the patented process or machine of production, the establishment of a new trade or industry in the Philippines is prevented; or if the patent or invention relates to food or medicine or is necessary to public health or public safety. All these things involve the application of laws, legal principles, practice and procedure. They call for legal knowledge, training and experience for which a member of the bar has been prepared. In support of the proposition that much of the business and many of the acts, orders and decisions of the Patent Director involve questions of law or a reasonable and correct evaluation of facts, the very Patent Law, Republic Act No. 165, Section 61, provides that:
". . . . The applicant for a patent or for the registration of a design, any party to a proceeding to cancel a patent or to obtain a compulsory license, and any party to any other proceeding in the Office may appeal to the Supreme Court from any final order or decision of the Director."

In other words, the appeal is taken to this Tribunal. If the transaction of business in the Patent Office and the acts, orders and decisions of the Patent Director involved exclusively or mostly technical and scientific knowledge and training, then logically, the appeal should be taken not to a court or judicial body, but rather to a board of scientists, engineers or technical men, which is not the case. Another aspect of the question involves the consideration of the nature of the functions and acts of the Head of the Patent Office.
". . . . The Commissioner, in issuing or withholding patents, in reissues, interferences, and extensions, exercises quasi-judicial functions. Patents are public records, and it is the duty of the Commissioner to give authenticated copies to any person, on payment of the legal fees." (40 Am. Jur. 537). (Emphasis supplied). ". . . . The Commissioner has the only original initiatory jurisdiction that exists up to the granting and delivering of a patent, and it is his duty to decide whether the patent is new and whether it is the proper subject of a patent; and his action in awarding or refusing a patent is a judicial function. In passing on an application the commissioner should decide not only questions of law, but also questions of fact, as whether there has been a prior public use or sale of the article invented. . . . ." (60 C. J. S. 460). (Emphasis supplied).

The Director of Patents, exercising as he does judicial or quasi-judicial functions, it is reasonable to hold that a member of the bar, because of his legal knowledge and training, should be allowed to practice before the Patent Office, without further examination or other qualification. Of course, the Director of Patents, if he deems it advisable or necessary, may require that members of the bar practising before him enlist the assistance of technical men and scientists in the preparation of papers and documents, such as, the drawing or technical description of an invention or machine sought to be patented, in the same way that a lawyer filing an application for the registration of a parcel of land on behalf of his client, is required to submit a plan and technical description of said land, prepared by a licensed surveyor. 115

But respondent Director claims that he is expressly authorized by the law to require persons desiring to practice or to do business before him to submit to an examination, even if they are already members of the bar. He contends that our Patent Law, Republic Act No. 165, is patterned after the United States Patent Law; and that the U. S. Patent Office in its Rules of Practice of the United States Patent Office in Patent Cases prescribes an examination similar to that which he (respondent) has prescribed and scheduled. He invites our attention to the following provisions of said Rules of Practice:
"Registration of attorneys and agents. A register of attorneys and a register of agents are kept in the Patent Office on which are entered the names of all persons recognized as entitled to represent applicants before the Patent Office in the preparation and prosecution of applications for patent. Registration in the Patent Office under the provisions of these rules shall only entitle the person registered to practice before the Patent Office. "(a)Attorneys at law. Any attorney at law in good standing admitted to practice before any United States Court or the highest court of any State or Territory of the United States who fulfills the requirements and complied with the provisions of these rules may be admitted to practice before the Patent Office and have his name entered on the register of attorneys. xxx xxx xxx "(c)Requirement for registration. No person will be admitted to practice and register unless he shall apply to the Commissioner of Patents in writing on a prescribed form supplied by the Commissioner and furnish all requested information and material; and shall establish to the satisfaction of the Commissioner that he is of good moral character and of good repute and possessed of the legal and scientific and technical qualifications necessary to enable him to render applicants for patent valuable service, and is otherwise competent to advise and assist him in the presentation and prosecution of their application before the Patent Office. In order that the Commissioner may determine whether a person seeking to have his name placed either of the registers has the qualifications specified, satisfactory proof of good moral character and repute, and of sufficient basic training in scientific and technical matters must be submitted and an examination which is held from time to time must be taken and passed. The taking of an examination may be waived in the case of any person who has served for three years in the examining corps of the Patent Office."

Respondent states that the promulgation of the Rules of Practice of the United States Patent Office in Patent Cases is authorized by the United States Patent Law itself, which reads as follows:
"The Commissioner of Patents, subject to the approval of the Secretary of Commerce may prescribe rules and regulations governing the recognition of agents, attorneys, or other persons representing applicants or other parties before his office, and may require of such persons, agents, or attorneys, before being recognized as representatives of applicants or other persons, that they shall show they are of good moral character and in good repute, are possessed of the necessary applications or other business before the Office. The Commissioner of Patents may, after notice and opportunity for a hearing, suspend or exclude, either generally or in any particular case, from further practice before his office any person, agent, or attorney shown to be incompetent or disreputable, or guilty of gross misconduct, or who refuses to comply with the said rules and regulations, or who shall, with intent to defraud in any manner, deceive, mislead, or threaten any applicant or prospective applicant, or other person having immediate or prospective business before the office, by word, circular, letter, or by advertising. The reasons for any such suspension or exclusion shall be duly recorded. The action of the Commissioner may be reviewed upon the petition of the person so refused recognition or so suspended or excluded by the district court of the United States for the District of Columbia under such conditions and upon such proceedings as the said court may by its rules determine." (Emphasis supplied).

qualifications to enable them to render to applicants or other persons valuable service, and are likewise competent to advise and assist applicants or other persons in the presentation or prosecution of their

Respondent Director concludes that Section 78 of Republic Act No. 165 being similar to the provisions of law just reproduced, then he is authorized to prescribe the rules and regulations requiring that persons desiring to practice before him should submit to and pass an examination. We reproduce said Section 78, Republic Act No. 165, for purposes of comparison: 116

"SEC. 78.Rules and regulations. The Director subject to the approval of the Secretary of Justice, shall promulgate the necessary rules and regulations, not inconsistent with law, for the conduct of all business in the Patent Office."

The above provisions of Section 78 certainly and by far, are different from the provisions of the United States Patent Law as regards authority to hold examinations to determine the qualifications of those allowed to practice before the Patent Office. While the U. S. Patent Law authorizes the Commissioner of Patents to require attorneys to show that they possess the necessary qualifications and competence to render valuable service to and advise and assist their clients in patent cases, which showing may take the form of a test or examination to be held by the Commissioner, our Patent Law, Section 78, is silent on this important point. Our attention has not been called to any express provision of our Patent Law, giving such authority to determine the qualifications of persons allowed to practice before the Patent Office. Section 551 of the Revised Administrative Code authorizes every chief of bureau to prescribe forms and make regulations or general orders not inconsistent with law, to secure the harmonious and efficient administration of his branch of the service and to carry into full effect the laws relating to matters within the jurisdiction of his bureau. Section 608 of Republic Act 1937, known as the Tariff and Customs Code of the Philippines, provides that the Commissioner of Customs shall, subject to the approval of the Department Head, make all rules and regulations necessary to enforce the provisions of said code. Section 338 of the National Internal Revenue Code, Commonwealth Act No. 466 as amended, states that the Secretary of Finance, upon recommendation of the Collector of Internal Revenue, shall promulgate all needful rules and regulations for the effective enforcement of the provisions of the code. We understand that rules and regulations have been promulgated not only for the Bureaus of Customs and Internal Revenue, but also for other bureaus of the Government, to govern the transaction of business in and to enforce the law for said bureaus. Were we to allow the Patent Office, in the absence of an express and clear provision of law giving the necessary sanction, to require lawyers to submit to and pass on examination prescribed by it before they are allowed to practice before said Patent Office, then there would be no reason why other bureaus specially the Bureaus of Internal Revenue and Customs, where the business in the same area are more or less complicated, such as the presentation of books of accounts, balance sheets, etc., assessments exemptions, depreciation, these as regards the Bureau of Internal Revenue, and the classification of goods, imposition of customs duties, seizures, confiscation, etc., as regards the Bureau of Customs, may not also require that any lawyer practising before them or otherwise transacting business with them on behalf of clients, shall first pass an examination to qualify. In conclusion, we hold that under the present law, members of the Philippine Bar authorized by this Tribunal to practice law, and in good standing, may practice their profession before the Patent Office, for the reason that much of the business in said office involves the interpretation and determination of the scope and application of the Patent Law and other laws applicable, as well as the presentation of evidence to establish facts involved; that part of the functions of the Patent Director are judicial or quasi-judicial, so much so that appeals from his orders and decisions are, under the law, taken to the Supreme Court. For the foregoing reasons, the petition for prohibition is granted and the respondent Director is hereby prohibited from requiring members of the Philippine Bar to submit to an examination or tests and pass the same before being permitted to appear and practice before the Patent Office. No costs.

Paras, C.J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L. and Endencia, JJ., concur.
[G.R. No. L-12596. July 31, 1958.]

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JOSE L. GUEVARA, petitioner, vs. THE COMMISSION ON ELECTIONS, respondent.

Enrique M. Fernando for petitioner.

Dominador D. Dayot for respondent. SYLLABUS 1.COMMISSION ON ELECTIONS; JURISDICTION AND POWER TO PUNISH FOR CONTEMPT. Under section 2, Article X of the Constitution and section 5 of the Revised Election Code, the Commission on Elections not only has the duty to enforce and administer all laws relative to the conduct of elections but the power to try, hear and decide any controversy that may be submitted to it in connection with the elections. And as an incident of this power, it may also punish for contempt in those cases provided for in Rule 64 of the Rules of Court under the same procedure and with the same penalties provided therein. In this sense, the Commission, although it cannot be classified as a court of justice within the meaning of the Constitution (section 13, Art. VIII) for it is merely an independent administrative body (The Nacionalista Party vs. Vera, 85 Phil., 126), may however exercise quasi-judicial functions in so far as controversies that by express provision of the law come under its jurisdiction. As to what questions may come within this category, neither the Constitution nor the Revised Election Code specifies. The former merely provides that it shall come under its jurisdiction, saving those involving the right to vote, all administrative questions

affecting elections, including the determination of the number and location of polling places, and the appointment of election inspectors and other election officials, while the latter is silent as to what questions
may be brought before it for determination. But it is clear that, to come under its jurisdiction, the questions should be controversial in nature and must refer to the enforcement and administration of all laws relative to the conduct of elections. 2.ID.; ID.; ON MINISTERIAL ACT; NEWSPAPER COMMENTS ON REQUISITION FOR BALLOT BOXES. The requisitioning and preparation of the necessary ballot boxes to be used in the elections is an imperative ministerial duty of the Commission on Elections performed in its administrative capacity in relation to the conduct of election ordained by our Constitution. In proceeding on this matter, it only dicharges a ministerial duty; it does not exercise any judicial functions. Such being the case, it can not exercise the power to punish for contempt as postulated in the law, for such power is inherently Judicial in nature. 3.ID.; ID.; POWER TO PUNISH FOR CONTEMPT IS INHERENTLY JUDICIAL; EXEMPTION. "The power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of judgments, orders and mandates of Courts, and, consequently, in the administration of justice" (Slade Perkins vs. Director of Prisons, 58 Phil., 271; U. S. vs. Loo Koe, 36 Phil., 867; In re Sotto 46 Off. Gaz., 2570; In re Kelly, 35 Phil, 944). The exercise of this power has always been regarded as a necessary incident and attribute of courts (Slade Perkins vs. Director of Prisons, Ibid.) Its exercise by administrative bodies has been invariably limited to making effective the power to elicit testimony (People vs. Swena, 296 p. 271), and the exercise of that power by an administrative body in furtherance of its administrative function has been held invalid (Langenberg vs. Decker, 31 N. E. 190; In re Sims, 37 Phil., 135; Roberts vs. Hacney, 58 S.W. 180).

DECISION

BAUTISTA ANGELO, J :
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Petitioner was ordered by the Commissioner on Elections to show cause why he should not be punished for contempt for having published in the Sunday Times issue of June 2, 1957 an article entitled "Ballot Boxes Contract Hit", which tended to interfere with and influence the Commission on Elections and its members in the adjudication of a controversy then pending investigation and determination before said body "arising from the third petition for reconsideration of May 20, 1957 and the supplementary petition thereof of June 1, 1957 filed by Acme Steel Mfg. Co., Inc., praying for reconsideration of the resolutions of the Commission of May 4 and 13, 1957, awarding the contracts for the manufacture and supply of 34,000 ballot boxes to the National Shipyards & Steel Corporation and the Asiatic Steel Mfg. Co., Inc. and the respective answers of the latter two corporations to said petitions; and which article likewise tended to degrade, bring into disrepute, and undermine the exclusive constitutional function of this Commission and its Chairman Domingo Imperial and Member Sixto Brillantes in the administration of all the laws relative to the conduct of elections." Petitioner, answering the summons issued to him by the Commission, appeared and filed a motion to quash on the following grounds:
"a)The Commission has no jurisdiction to punish as contempt the publication of the alleged contemptuous article, as neither in the Constitution nor in statutes is the Commission granted a power to so punish the same, for should Section 5 of Republic Act No. 180, vesting the Commission with 'power to punish contempts provided for in Rule 64 of the Rules of Court under the same procedure and with the same penalties provided therein,' be applied to the case at hand, said provision would be unconstitutional. "b)Assuming that the Commission's power to punish contempt exists, the same cannot be applied to the instant case, where the Commission is exercising a purely administrative function of purchasing ballot boxes. "c)Assuming that the Commission's power to punish contempt exists, said power cannot apply to the present case because the matter of purchasing the ballot boxes was already a closed case when the article in question was published. "d)Assuming that controversy contemplated by the law was still pending, the article in question was a fair report because it could be assumed that the news report of the respondent was based on the motion for reconsideration filed by the Acme Steel where there was an allegation of fraud, etc."

The Commission, after hearing, denied the motion to quash but granted petitioner a period of fifteen (15) days within which to elevate the matter to the Supreme Court in view of the issue raised which assails the jurisdiction of the Commission to investigate and punish petitioner for contempt in connection with the alleged publication. Hence the present petition for prohibition with preliminary injunction. The facts which gave rise to the present contemptuous incident are: The Commission on Elections, on May 4, 1957, after proper negotiations, awarded to the National Shipyards & Steel Corporation (NASSCO), the Acme Steel Mfg. Co., Inc. (ACME), and the Asiatic Steel Mfg. Co., Inc. (ASIATIC), the contracts to manufacture and supply the Commission 12,000, 11,000 and 11,000 ballot boxes at P17.64, P14.00 and P17.00 each, respectively. On May 8, 1957, both the NASSCO and the ASIATIC signed with the Commission on Elections the corresponding contracts thereon. On May 13, 1957, the Commission cancelled the award to the ACME for failure of the latter to sign the contract within the designated time and awarded to the NASSCO and the ASIATIC, one-half each, the 11,000 ballot boxes originally alloted to the ACME. The corresponding contracts thereon were signed on May 16, 1957. Then followed a series of petitions filed by the ACME for the reconsideration of the resolution of the Commission of May 13, 1957. The first of these petitions was filed on May 14, 1957 which, after hearing, was denied by the Commission in its resolution of May 16, 1957. The second petition was filed on May 16, 1957 and was denied on May 17, 1957. The third petition was filed on May 20, 1957, and because of the seriousness of the grounds alleged therein for the annulment of its previous resolutions, the Commission resolved to conduct a formal investigation on the matter ordering the NASSCO and the ASIATIC to file their respective answers. Thereafter, after these corporations had filed their answers, the Commission held a 119

formal hearing thereon on May 24, 1957. On May 28, 1957, the ACME filed a memorandum on the points adduced during the hearing, and on June 4, 1957, the Commission issued its resolution denying the third motion for reconsideration. The article signed by petitioner was published in the June 2, 1957 issue of the Sunday Times, a newspaper of nationwide circulation. The question to be determined is whether the Commission on Elections has the power and jurisdiction to conduct contempt proceedings against petitioner with a view to imposing upon him the necessary disciplinary penalty in connection with the publication of an article in the Sunday Times issue of June 2, 1957 which, according to the charge, tended to interfere with and influence said Commission in the adjudication of a controversy then pending determination and to degrade and undermine the function of the Commission and its members in the administration of all laws relative to the conduct of elections. The Commission on Elections is an independent administrative body which was established by our Constitution to take charge of the enforcement of all laws relative to the conduct of elections and devise means and methods that will insure the accomplishment of free, orderly, and honest elections (Sumulong vs.Commission on Elections, 73 Phil., 288; Nacionalista Party vs. The Solicitor General, 85 Phil., 101; 47 Off. Gaz. 2356). Its powers are defined in the Constitution. It provides that it "shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections and shall exercise all other functions which may be conferred upon it by law. It shall decide, save those involving the right to vote, all administrative questions, affecting elections, including the determination of the number and location of polling places, and the appointment of election inspectors and of other election officials" (Section 2, Article X). The Revised Election Code supplements what other powers may be exercised by said Commission. Among these powers are those embodied in Section 5 thereof which, for ready reference, we quote:
"SEC. 5.Powers of Commission. The Commission on Elections or any of the members thereof shall have the power to summon the parties to a controversy pending before it, issue subpoenas and subpoenas duces tecum and otherwise take testimony in any investigation or hearing pending before it, and delegate such power to any officer. Any controversy submitted to the Commission on Elections shall be tried, heard and decided by it within fifteen days counted from the time the corresponding petition giving rise to said controversy is filed. The Commission or any of the members thereof shall have the power to punish contempts provided for in rule sixty-four of the Rules of Court, under the same procedure and with the same penalties provided therein. "Any violation of any final and executory decision, order or ruling of the Commission shall constitute contempt of the Commission. "Any decision, order or ruling of the Commission on Elections may be reviewed by the Supreme Court by writ of certiorari in accordance with the Rules of Court or with such rules as may be promulgated by the Supreme Court."

It would therefore appear that the Commission on Elections not only has the duty to enforce and administer all laws relative to the conduct of elections but the power to try, hear and decide any controversy that may be submitted to it in connection with the elections. And as an incident of this power, it may also punish for contempt in those cases provided for in Rule 64 of the Rules of Court under the same procedure and with the same penalties provided therein. In this sense, the Commission, although it cannot be classified as a court of justice within the meaning of the Constitution (Section 13, Article VIII), for it is merely an independent administrative body (The Nacionalista Party vs. Vera, 85 Phil., 126; 47 Off. Gaz. 2375), may however exercise quasi-judicial functions in so far as controversies that by express provision of the law come under its jurisdiction. As to what questions may come within this category, neither the Constitution nor the Revised Election Code specifies. The former merely provides that it shall come under its jurisdiction, saving those involving the right to vote, all administrative questions affecting

elections, including the determination of the number and location of polling places, and the appointment of election inspectors and other election officials, while the latter is silent as to what questions may be

brought before it for determination. But it is clear that, to come under its jurisdiction, the questions should 120

be controversial in nature and must refer to the enforcement and administration of all laws relative to the conduct of election. The difficulty lies in drawing the demarcation line between a duty which inherently is administrative in character and a function which is justiciable and which would therefore call for judicial action by the Commission. But this much depends upon the factors that may intervene when a controversy should arise. Thus, it has been held that the Commission has no power to annul an election which might not have been free, orderly and honest for such matter devolves upon other agencies of the Government (Nacionalista Party vs. Commission on Elections, 85 Phil., 148; 47 Off. Gaz. 2851); neither does it have the power to decide the validity or invalidity of votes cast in an election for such devolves upon the courts or the electoral tribunals (Ibid.); it does not also have the power to order a recounting of the votes before the proclamation of election even if there are discrepancies in the election returns for it is a function of our courts of justice (Ramos vs. Commission on Elections, 80 Phil., 722); nor does it have the power to order the correction of a certificate of canvass after a candidate had been proclaimed and assumed office (De Leon vs. Imperial, 94 Phil., 680); and only very recently this Court has held that the Commission has no power to reject a certificate of candidacy except only when its purpose is to create confusion in the minds of the electors (Abcede vs. Imperial, 103 Phil., 136). On the other hand, it has been held that the Commission has the power to annul an illegal registry list of voters (Feliciano, et al. vs. Lugay, et al., 93 Phil., 744; 49 Off. Gaz. 3863); to annul an election canvass made by a municipal board of canvassers (Mintu vs. Enage, et al., G. R. No. L-1834); and to investigate and act on the illegality of a canvass of election made by a municipal board of canvassers (Ramos vs. Commission on Elections, 80 Phil., 722). And as to what are the ministerial duties which the Commission on Elections must perform in connection with the conduct of elections, the following resume made by the Commission itself in a controversy which was submitted to it for determination is very enlightening:
"In the enforcement and administration of all laws relative to the conduct of elections, the first duty of the Commission is to set in motion all the multifarious preparatory processes ranging from the purchase of election supplies, printing of election forms and ballots, appointments of members of the boards of inspectors, establishment of precincts and designation of polling places to the preparation of the registry lists of voters, so as to put in readiness on election day the election machinery in order that the people who are legally qualified to exercise the right of suffrage may be able to cast their votes to express their sovereign will. It is incumbent upon the Commission to see that all these preparatory acts will insure free, orderly and honest elections. All provisions of the Revised Election Code contain regulations relative to these processes preparatory for election day. It is incumbent upon the Commission on Elections to see that all these preparatory acts are carried out freely, honestly and in an orderly manner. It is essential that the Commission or its authorized representatives, in establishing precincts or designating polling places, must act freely, honestly and in an orderly manner. It is also essential that the printing of election forms and the purchase of election supplies and their distribution are done freely, honestly and in an orderly manner. It is further essential that the political parties or their duly authorized representatives who are entitled to be represented in the boards of inspectors must have the freedom to choose the person who will represent them in each precinct throughout the country. It is further essential that once organized, the boards of inspectors shall be given all the opportunity to be able to perform their duties in accordance with law freely, honestly and in an orderly manner, individually and as a whole. In other words, it is the duty of the Commission to see that the boards of inspectors, in all their sessions, are placed in an atmosphere whereby they can fulfill their duties without any pressure, influence and interference from any private person or public official. All these preparatory steps are administrative in nature and all questions arising therefrom are within the exclusive powers of the Commission to resolve. All irregularities, anomalies and misconduct committed by any election official in these preparatory steps are within the exclusive power of the Commission to correct. Any erring official must respond to the Commission for investigation. Of these preparatory acts, the preparation of the permanent list of voters is the matter involved in this case, which to our mind is completely an administrative matter." (Decision of the Commission on Elections, October 28, 1951, In Re Petition of Angel Genuino vs. Prudente, et al., Case No. 196) 1

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Considering that the paramount administrative duty of the Commission is to set in motion all the multifarious preparatory processes ranging from the purchase of election supplies, printing of election forms and ballots, appointments of members of the board of inspectors, establishment of precincts and designation of polling places to the preparation of registry lists of voters, so as to put in readiness on election day the election machinery, it may also be reasonably said that the requisitioning and preparation of the necessary ballot boxes to be used in the elections is by the same token an imperative ministerial duty which the Commission is bound to perform if the elections are to be held. Such is the incident which gave rise to the contempt case before us. It stems from the ministerial act of the Commission in requisitioning for the necessary ballot boxes in connection with the last elections and in so proceeding it provoked a dispute between several dealers who offered to do the job. Although the negotiation conducted by the Commission has resulted in controversy between several dealers, that however merely refers to a ministerial duty which the Commission has performed in its administrative capacity in relation to the conduct of elections ordained by our Constitution. In proceeding on this matter, it only discharged a ministerial duty; it did not exercise any judicial function. Such being the case, it could not exercise the power to punish for contempt as postulated in the law, for such power is inherently judicial in nature. As this Court has aptly said: "The power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of judgments, orders and mandates of courts, and, consequently, in the administration of justice" (Slade Perkins vs. Director of Prisons, 58 Phil., 271; U. S. vs. Loo Hoe, 36 Phil., 867; In Re Sotto, 46 Off. Gaz. 2570; In Re Kelly, 35 Phil., 944). The exercise of this power has always been regarded as a necessary incident and attribute of courts (Slade Perkins vs. Director of Prisons, Ibid.). Its exercise by administrative bodies has been invariably limited to making effective the power to elicit testimony (People vs. Swena, 296 P., 271). And the exercise of that power by an administrative body in furtherance of its administrative function has been held invalid (Langenberg vs. Decker, 31 N.E. 190; In Re Sims 37 P., 135; Roberts vs. Hacney, 58 S.W., 810). We are therefore persuaded to conclude that the Commission on Elections has no power nor authority to submit petitioner to contempt proceedings if its purpose is to discipline him because of the publication of the article mentioned in the charge under consideration. Wherefore, petition is granted. Respondent Commission is hereby enjoined from proceeding with the contempt case set forth in its resolution of June 20, 1957, without pronouncement as to costs. The preliminary injunction issued by this Court is made permanent.

Paras, C.J., Padilla, Montemayor, Reyes, A., Reyes, J.B.L., Endencia and Felix, JJ., concur.

[G.R. No. 46496. February 27, 1940.] ANG TIBAY, represented by TORIBIO TEODORO, manager and proprietor, and NATIONAL WORKERS' BROTHERHOOD, petitioners, vs. THE COURT OF INDUSTRIAL RELATIONS and NATIONAL LABOR UNION, INC., respondents.

Solicitor-General Ozaeta and Assistant Attorney Barcelona for the Court of Industrial Relations. Antonio D. Paguia; for National Labor Union. Claro M. Recto; for petitioner "Ang Tibay". Jose M. Casal; for National Workers' Brotherhood.
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SYLLABUS 1.COURT OF INDUSTRIAL RELATIONS; POWER. The nature of the Court of Industrial Relations and of its power is extensively discussed in the decision. 2.ID.; ID.; TECHNICAL RULES OF PROCEDURE; DUE PROCESS OF LAW. The Court of Industrial Relations is not narrowly constrained by technical rules of procedure, and Commonwealth Act No. 103 requires it to act according to justice and equity and substantial merits of the case, without regard to technicalities or legal evidence but may inform its mind in such manner as it may deem just and equitable (Goseco vs. Court of Industrial Relations et al., G. R. No. 46673). The fact, however, that the Court of Industrial Relations may be said to be free from the rigidity of certain procedural requirements does not mean that it can, in justiciable cases coming before it, entirely ignore or disregard the fundamental and essential requirements of due process in trials and investigations of an administrative character. 3.ID.; ID.; ID.; ID.; CARDINAL PRIMARY RIGHTS. There are cardinal primary rights which must be respected even in proceedings of this character. The first of these rights is the right to a hearing, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. Not only must the party be given an opportunity to present his case and to adduce evidence tending to establish the rights which he asserts but the tribunal must consider the evidence presented. While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be disregarded, namely, that of having something to support its decision. Not only must there be some evidence to support a finding or conclusion, but the evidence must be substantial. The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision. The Court of Industrial Relations should, in all controvercial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reasons for the decisions rendered. The performance of this duty is inseparable from the authority conferred upon it. 4.ID.; ID. ; ID. ; ID. ; ID.; CASE AT BAR ; NEW TRIAL GRANTED. In the light of the foregoing fundamental principles, it is sufficient to observe here that, except as to the alleged agreement between the Ang Tibay and the National Workers' Brotherhood (appendix A), the record is barren and does not satisfy the thirst for a factual basis upon which to predicate, in a rational way, a conclusion of law. This result, however, does not now preclude the concession of a new trial prayed for by the respondent National Labor Union, Inc. The interest of justice would be better served if the movant is given opportunity to present at the hearing the documents referred to in his motion and such other evidence as may be relevant to the main issue involved. The legislation which created the Court of Industrial Relations and under which it acts is new. The failure to grasp the fundamental issue involved is not entirely attributable to the parties adversely affected by the result. Accordingly, the motion for a new trial should be, and the same is hereby, granted, and the entire record of this' case shall be remanded to the Court of Industrial Relations, with instruction that it re-open the case, receive all such evidence as may be relevant, and otherwise proceed in accordance with the requirements set forth in the decision.

DECISION

LAUREL, J :
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The Solicitor-General in behalf of the respondent Court of Industrial Relations in the above-entitled case has filed a motion for reconsideration and moves that, for the reasons stated in his motion, we reconsider the following legal conclusions of the majority opinion of this Court:
"1.Que un contrato de trabajo, asi individual como colectivo, sin termino fijo de duracion o que no sea para una determinada, termina o bien por voluntad de cualquiera de las partes o cada vez que llega el plazo fijado para el pago de los salarios segun costumbre en la localidad o cuando se termine la obra; "2.Que los obreros de una empresa fabril, que han celebrado contrato, ya individual ya colectivamente, con ella, sin tiempo fijo, y que se han visto obligados a cesar en sus trabajos por haberse declarado paro forzoso en la fabrica en la cual trabajan, dejan de ser empleados u obreros de la misma; "3.Que un patrono o sociedad que ha celebrado un contrato colectivo de trabajo con sus obreros sin tiempo fijo de duracion y sin ser para una obra determinada y que se niega a readmitir a dichos obreros que cesaron como consecuencia de un paro forzoso, no es culpable de practica injusta ni incurre en la sancion penal del articulo 5 de la Ley No. 213 del Commonwealth, aunque su negativa a readmitir se deba a que dichos obreros pertenecen a un determinado organismo obrero, puesto que tales ya han dejado de ser empleados suyos por terminacion del contrato en virtud del paro."

The respondent National Labor Union, Inc., on the other hand, prays for the vacation of the judgment rendered by the majority of this Court and the remanding of the case to the Court of Industrial Relations for a new trial, and avers:
"1.That Toribio Teodoro's claim that on September 26,1938, there was shortage of leather soles in ANG TIBAY making it necessary for him to temporarily lay off the members of the National Labor Union Inc., is entirely false and unsupported by the records of the Bureau of Customs and the Books of Accounts of native dealers in leather. "2.That the supposed lack of leather materials claimed by Toribio Teodoro was but a scheme adopted to systematically discharge all the members of the National Labor Union, Inc., from work. "3.That Toribio Teodoro's letter to the Philippine Army dated September 29, 1938, (re supposed delay of leather soles from the States) was but a scheme to systematically prevent the forfeiture of this bond despite the breach of his CONTRACT with the Philippine Army. "4.That the National Workers' Brotherhood of ANG TIBAY is a company or employer union dominated by Toribio Teodoro, the existence and functions of which are illegal. (281 U. S., 548, petitioner's printed memorandum, p. 25.) "5.That in the exercise by the laborers of their rights to collective bargaining, majority rule and elective representation are highly essential and indispensable. ( Sections 2 and 5, Commonwealth Act No. 213.) "6.That the century provisions of the Civil Code which had been (the) principal source of dissensions and continuous civil war in Spain cannot and should not be made applicable in interpreting and applying the salutary provisions of a modern labor legislation of American origin where industrial peace has always been the rule. "7.That the employer Toribio Teodoro was guilty of unfair labor practice for discriminating against the National Labor Union, Inc., and unjustly favoring the National Workers' Brotherhood. "8.That the exhibits hereto attached are so inaccessible to the respondents that even with the exercise of due diligence they could not be expected to have obtained them and offered as evidence in the Court of Industrial Relations. "9.That the attached documents and exhibits are of such far-reaching importance and effect that their admission would necessarily mean the modification and reversal of the judgment rendered herein."

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The petitioner, Ang Tibay, has filed an opposition both to the motion for reconsideration of the respondent Court of Industrial Relations and to the motion for new trial of the respondent National Labor Union, Inc. In view of the conclusion reached by us and to be herein- after stated with reference to the motion for a new trial of the respondent National Labor Union, Inc., we are of the opinion that it is not necessary to pass upon the motion for reconsideration of the Solicitor-General. We shall proceed to dispose of the motion for new trial of the respondent labor union. Before doing this, however, we deem it necessary, in the interest of orderly procedure in cases of this nature, to make several observations regarding the nature of the powers of the Court of Industrial Relations and emphasize certain guiding principles which should be observed in the trial of cases brought before it. We have re-examined the entire record of the proceedings had before the Court of Industrial Relations in this case, and we have found no substantial evidence to indicate that the exclusion of the 89 laborers here was due to their union affiliation or activity. The whole transcript taken contains what transpired during the hearing and is more of a record of contradictory and conflicting statements of opposing counsel, with sporadic conclusion drawn to suit their own views. It is evident that these statements and expressions of views of counsel have no evidentiary value. The Court of Industrial Relations is a special court whose functions are specifically stated in the law of its creation (Commonwealth Act No. 103). It is more an administrative board than a part of the integrated judicial system of the nation. It is not intended to be a mere receptive organ of the Government. Unlike a court of justice which is essentially passive, acting only when its jurisdiction is invoked and deciding only cases that are presented to it by the parties litigant, the function of the Court of Industrial Relations, as will appear from perusal of its organic law, is more active, affirmative and dynamic. It not only exercises judicial or quasijudicial functions in the determination of disputes between employers and employees but its functions are far more comprehensive and extensive. It has jurisdiction over the entire Philippines, to consider, investigate, decide, and settle any question, matter controversy or dispute arising between, and/or affecting, employers and employees or laborers, and landlords and tenants or farm-laborers, and regulate the relations between them, subject to, and in accordance with, the provisions of Commonwealth Act No. 103 (section 1). It shall take cognizance for purposes of prevention, arbitration, decision and settlement, of any industrial or agricultural dispute causing or likely to cause a strike or lockout, arising from differences as regards wageshares or compensation, hours of labor or conditions of tenancy or employment, between employers and employees or laborers and between landlords and tenants or farm-laborers, provided that the number of employees, laborers or tenants or farm-laborers involved exceeds thirty, and such industrial or agricultural dispute is submitted to the Court by the Secretary of Labor or by any or both of the parties to the controversy and certified by the Secretary of Labor as existing and proper to be death with by the Court for the sake of public interest. (Section A, ibid.) It shall, before hearing the dispute and in the course of such hearing, endeavor to reconcile the parties and induce them to settle the dispute by amicable agreement. (Paragraph 2, section 4, ibid.) When directed by the President of the Philippines, it shall investigate and study all pertinent facts related to the industry concerned or to the industries established in a designated locality, with a view to determining the necessity and fairness of fixing and adopting for such industry or locality a minimum wage or share of laborers or tenants, or a maximum "canon" or rental to be paid by the "inquilinos" or tenants or lessees to landowners. (Section 5, ibid.) In fine, it may appeal to voluntary arbitration in the settlement of industrial disputes; may employ mediation or conciliation for that purpose, or recur to the more effective system of official investigation and compulsory arbitration in order to determine specific controversies between labor and capital in industry and in agriculture. There is in reality here a mingling of executive and judicial functions, which is a departure from the rigid doctrine of the separation of governmental powers. In the case of Goseco vs. Court of Industrial Relations et al., G. R. No. 46673, promulgated September 13, 1939, we had occasion to point out that the Court of Industrial Relations is not narrowly constrained by technical rules of procedure, and the Act requires it to "act according to justice and equity and substantial merits of the case, without regard to technicalities or legal forms and shall not be bound by 125

any technical rules of legal evidence but may inform its mind in such manner as it may deem just and equitable." (Section 20, Commonwealth Act No. 103.) It shall not be restricted to the specific relief claimed or demands made by the parties to the industrial or agricultural dispute, but may include in the award, order or decision any matter or determination which may be deemed necessary or expedient for the purpose of settling the dispute or of preventing further industrial or agricultural disputes. (Section 13, ibid.) And in the light of this legislative policy, appeals to this Court have been especially regulated by the rules recently promulgated by this Court to carry into effect the avowed legislative purpose. The fact, however, that the Court of Industrial Relations may be said to be free from the rigidity of certain procedural requirements does not mean that it can, in justiciable cases coming before it, entirely ignore or disregard the fundamental and essential requirements of due Process in trials and investigations of an administrative character. There are cardinal primary rights which must be respected even in proceedings of this character: (1)The first of these rights is the right to a hearing which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. In the language of Chief Justice Hughes, in Morgan v. U. S., 304 U. S. 1, 58 S. Ct. 773, 999, 82 Law. ed 1129, "the liberty and property of the citizen shall be protected by the rudimentary requirements of fair play." (2)Not only must the party be given an opportunity to present his case and to adduce evidence tending to establish the rights which he asserts but the tribunal must consider the evidence presented. (Chief Justice Hughes in Morgan v. U. S. 298 U. S. 468, 56 S. Ct. 906, 80 Law. ed. 1288.) In the language of this Court in Edwards vs. McCoy, 22 Phil., 598, "the right to adduce evidence, without the corresponding duty on the part of the board to consider it, is vain. Such right is conspicuously futile if the person or persons to whom the evidence is presented can thrust it aside without notice or consideration." (3)"While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be disregarded, namely, that of having something to support its decision. A decision with absolutely nothing to support it is a nullity, a place when directly attached." (Edwards vs. McCoy, supra.) This principle emanates from the more fundamental principle that the genius of constitutional government is contrary to the vesting of unlimited power anywhere. Law is both a grant and a limitation upon power. (4)Not only must there be some evidence to support a finding or conclusion (City of Manila vs. Agustin, G. R. No. 45844, promulgated November 29, 1937, XXXVI O. G. 1335), but the evidence must be "substantial." (Washington, Virginia & Maryland Coach Co. v. National Labor Relations Board, 301 U. S. 142, 147, 57 S. Ct. 648, 650, 81 Law ed 965.) Substantial evidence is more than a mere scintilla It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." (Appalachian Electric Power v. National Labor Relations Board, 4 Cir., 93 F. 2d 985, 989; National Labor Relations Board v. Thompson Products, 6 Cir., 97 F. 2d 13, 15; Ballston-stillwater Knitting Co. v. National Labor Relations Board, 2 Cir., 98 F. 2d 758, 760.) . . . The statute provides that 'the rules of evidence prevailing in courts of law and equity shall not be controlling.' The obvious purpose of this and similar provisions is to free administrative boards from the compulsion of technical rules so that the mere admission of matter which would be deemed incompetent in judicial proceedings would not invalidate the administrative order. (Interstate Commerce Commission v. Baird, 194 U. S. 25, 44, 24 S. Ct. 563, 568, 48 Law. ed. 860; Interstate Commerce Commission v. Louisville & Nashville R. Co., 227 U. S. 88, 93, 33 S. Ct. 185, 187, 57 Law. ed. 431; United States v. Abilene & Southern Ry. Co., 265 U. S. 274, 288, 44 S. Ct. 565, 569, 68 Law. ed. lola; Tagg Bros. & Moorhead v. United States, 280 U. S. 420, 442, 50 S. Ct. 220, 225, 74 Law. ed. 624.) But this assurance of a desirable flexibility in administrative procedure does not go so far as to justify orders without a basis in evidence having rational probative force. Mere uncorroborated hearsay or rumor does not constitute substantial evidence. (Consolidated Edison Co. v. National Labor Relations Board, 59 S. Ct. 206, 83 Law. ed. No. 4, Adv. Op., p. 131.)" (5)The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. (Interstate Commence Commission vs. L. & N. R. Co., 126

227 U. S. 88, 33 S. Ct. 185, 57 Law. ed. 431.)Only by confining the administrative tribunal to the evidence disclosed to the parties, can the latter be protected in their right to know and meet the case against them. It should not, however, detract from their duty actively to see that the law is enforced, and for that purpose, to use the authorized legal methods of securing evidence and informing itself of facts material and relevant to the controversy. Boards of inquiry may be appointed for the purpose of investigating and determining the facts in any given case, but their report and decision are only advisory. (Section 9, Commonwealth Act No. 103.) The Court of Industrial Relations may refer any industrial or agricultural dispute of any matter under its consideration or advisement to a local board of inquiry, a provincial fiscal, a justice of the peace or any public official in any part of the Philippines for investigation, report and recommendation, and may delegate to such board or public official such powers and functions as the said Court of Industrial Relations may deem necessary, but such delegation shall not affect the exercise of the Court itself of any of its powers (Section 10, ibid.) (6)The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision. It may be that the volume of work is such that it is literally impossible for the titular heads of the Court of Industrial Relations personally to decide all controversies coming before them. In the United States the difficulty is solved with the enactment of statutory authority authorizing examiners or other subordinates to render final decision, with right to appeal to board or commission, but in our case there is no such statutory authority. (7)The Court of Industrial Relations should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the vario issues involved, and the reasons for the decisions rendered. The performance of this duty is inseparable from the authority conferred upon it. In the light of the foregoing fundamental principles, it is sufficient to observe here that, except as to the alleged agreement between the Ang Tibay and the National Workers' Brotherhood (appendix A), the record is barren and does not satisfy the thirst for a factual basis upon which to predicate, in a rational way, a conclusion of law. This result, however, does not now preclude the concession of a new trial prayed for by the respondent National Labor Union, Inc. In the portion of the petition hereinabove quoted of the National Labor Union, Inc., it is alleged that "the supposed lack of leather material claimed by Toribio Teodoro was but a scheme adopted to systematically discharge all the members of the National Labor Union, Inc., from work" and this averment is desired to be proved by the petitioner with the "records of the Bureau of Customs and the Books of Accounts of native dealers in leather"; that "the National Workers' Brotherhood Union of Ang Tibay is a company or employer union dominated by Toribio Teodoro, the existence and functions of which are illegal." Petitioner further alleges under oath that the exhibits attached to the petition to prove his substantial averments "are so inaccessible to the respondents that even with the exercise of due diligence they could not be expected to have obtained them and offered as evidence in the Court of Industrial Relations", and that the documents attached to the petition "are of such far reaching importance and effect that their admission would necessarily mean the modification and reversal of the judgment rendered therein." We have considered the reply of Ang Tibay and its arguments against the petition. By and large, after considerable discussion, we have come to the conclusion that the interest of justice would be better served if the movant is given opportunity to present at the hearing the documents referred to in his motion and such other evidence as may be relevant to the main issue involved. The legislation which created the Court of Industrial Relations and under which it acts is new. The failure to grasp the fundamental issue involved is not entirely attributable to the parties adversely affected by the result. Accordingly, the motion for a new trial should be, and the same is hereby granted, and the entire record of this case shall be remanded to the Court of Industrial Relations, with instruction that it reopen the case, receive all such evidence as may be relevant, and otherwise proceed in accordance with the requirements set forth hereinabove. So ordered.

127

Avancea, C.J., Villa-Real, Imperial, Diaz, Concepcion and Moran, JJ., concur.

[G.R. No. 139465. January 18, 2000.] SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK B. JIMENEZ, respondents.

Estelito P. Mendoza for private respondent.

SYNOPSIS The United States Government, on June 17, 1999, through Department of Foreign Affairs U. S. Note Verbale No. 0522, requested the Philippine Government for the extradition of Mark Jimenez, herein private respondent, to the United States. The request was forwarded the following day by the Secretary of Foreign Affairs to the Department of Justice (DOJ). Pending evaluation of the extradition documents by the DOJ, private respondent requested for copies of the official extradition request and all pertinent documents and the holding in abeyance of the proceedings. When his request was denied for being premature, private respondent resorted to an action for mandamus, certiorari and prohibition. The trial court issued an order maintaining and enjoining the DOJ from conducting further proceedings, hence, the instant petition.
ECTSDa

Although the Extradition Law does not specifically indicate whether the extradition proceeding is criminal, civil, or a special proceeding, it nevertheless provides the applicability of the Rules of Court in the hearing of the petition insofar as practicable and not inconsistent with the summary nature of the proceedings. The prospective extraditee under Section 2[c] of Presidential Decree No. 1069 faces the threat of arrest, not only after the extradition petition is filed in court, but even during the evaluation proceeding itself by virtue of the provisional arrest allowed under the treaty and the implementing law. Thus, the evaluation process, in essence, partakes of the nature of a criminal investigation making available certain constitutional rights to the prospective extraditee. The Court noted that there is a void in the provisions of the RP-US Extradition Treaty regarding the basic due process rights available to a prospective extraditee at the evaluation stage of the proceedings. The Court was constrained to apply the rules of fair play, the due process rights of notice and hearing. Hence, petitioner was ordered to furnish private respondent copies of the extradition request and its supporting papers and to grant the latter a reasonable time within which to file his comment with supporting evidence. SYLLABUS 1.CONSTITUTIONAL LAW; EXTRADITION TREATY; EVALUATION PROCESS, AN INVESTIGATIVE OR INQUISITORIAL PROCESS. The evaluation process, just like the extradition proceedings proper, belongs to a class by itself. It is sui generis. It is not a criminal investigation, but it is also erroneous to say that it is purely an exercise of ministerial functions. At such stage, the executive authority has the power: (a) to make a technical assessment of the completeness and sufficiency of the extradition papers; (b) to outrightly deny the request if on its face and on the face of the supporting documents the crimes indicated are not extraditable; and (c) to make a determination whether or not the request is politically motivated, or that the offense is a military one which is not punishable under non-military penal legislation (tsn, August 31, 1999, pp. 28-29; Article 2 and Paragraph [3], Article 3, RP-US Extradition Treaty). Hence, said process may be characterized as 128

an investigative or inquisitorial process in contrast to a proceeding conducted in the exercise of an administrative body's quasi-judicial power. 2.ADMINISTRATIVE LAW; QUASI-JUDICIAL PROCEEDINGS; PHASES. In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence; (b) determining facts based upon the evidence presented; and (c) rendering an order or decision supported by the facts proved (De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198, citing Morgan vs. United States, 304 U.S. 1). 3.ID.; ID:; TEST OF DETERMINING WHETHER ADMINISTRATIVE BODY EXERCISES JUDICIAL FUNCTIONS OR MERELY INVESTIGATORY FUNCTIONS. InRuperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on the functions of an investigatory body with the sole power of investigation. It does not exercise judicial functions and its power is limited to investigating the facts and making findings in respect thereto. The Court laid down the test of determining whether an administrative body is exercising judicial functions or merely investigatory functions: Adjudication signifies the exercise of power and authority to adjudicate upon the rights and obligations of the parties before it. Hence, if the only purpose for investigation is to evaluate evidence submitted before it based on the facts and circumstances presented to it, and if the agency is not authorized to make a final pronouncement affecting the parties, then there is an absence of judicial discretion and judgment. 4.CONSTITUTIONAL LAW; EXTRADITION TREATY; ADMINISTRATIVE BODY AUTHORIZED TO EVALUATE EXTRADITION DOCUMENTS MERELY EXERCISES INVESTIGATORY FUNCTIONS. The above description in Ruperto applies to an administrative body authorized to evaluate extradition documents. The body has no power to adjudicate in regard to the rights and obligations of both the Requesting State and the prospective extraditee. Its only power is to determine whether the papers comply with the requirements of the law and the treaty and, therefore, sufficient to be the basis of an extradition petition. Such finding is thus merely initial and not final. The body has no power to determine whether or not the extradition should be effected. That is the role of the court. The body's power is limited to an initial finding of whether or not the extradition petition can be filed in court. 5.ID.; ID.; EVALUATION PROCESS, PARTAKES OF NATURE OF CRIMINAL INVESTIGATION. In contrast to ordinary investigations, the evaluation procedure is characterized by certain peculiarities. Primarily, it sets into motion the wheels of the extradition process. Ultimately, it may result in the deprivation of liberty of the prospective extraditee. This deprivation can be effected at two stages: First, the provisional arrest of the prospective extraditee pending the submission of the request. Second, the temporary arrest of the prospective extraditee during the pendency of the extradition petition in court (Section 6, Presidential Decree No. 1069). Clearly, there is an impending threat to a prospective extraditee's liberty as early as during the evaluation stage. It is not only an imagined threat to his liberty, but a very imminent one. Because of these possible consequences, we conclude that the evaluation process is akin to an administrative agency conducting an investigative proceeding, the consequences of which are essentially criminal since such technical assessment sets off or commences the procedure for, and ultimately, the deprivation of liberty of a prospective extraditee. As described by petitioner himself, this is a "tool" for criminal law enforcement. In essence, therefore, the evaluation process partakes of the nature of a criminal investigation. 6.ID.; BILL OF RIGHTS; RIGHTS AGAINST SELF-INCRIMINATION; EXTENDS TO ADMINISTRATIVE PROCEEDINGS WHICH POSSESS A CRIMINAL OR PENAL ASPECT. In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against self-incrimination under Section 17, Article III of the 1987 Constitution which is ordinarily available only in criminal prosecutions, extends to administrative proceedings which possess a criminal or penal aspect. 7.ID.; ID.; DUE PROCESS; COMPONENTS. Due process is comprised of two components substantive due process which requires the intrinsic validity of the law in interfering with the rights of the person to his life, 129

liberty, or property, and procedural due process which consists of the two basic rights of notice and hearing, as well as the guarantee of being heard by an impartial and competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106). 8.ID.; ID.; ID.; PERVADES NOT ONLY IN CRIMINAL AND CIVIL PROCEEDINGS BUT IN ADMINISTRATIVE PROCEEDINGS AS WELL. The basic rights of notice and hearing pervade not only in criminal and civil proceedings, but in administrative proceedings as well. Non-observance of these rights will invalidate the proceedings. Individuals are entitled to be notified of any pending case affecting their interests, and upon notice, they may claim the right to appear therein and present their side and to refute the position of the opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p, 64). In a preliminary investigation which is an administrative investigatory proceeding, Section 3, Rule 112 of the Rules of Court guarantees the respondent's basic due process rights, granting him the right to be furnished a copy of the complaint, the affidavits, and other supporting documents, and the right to submit counter-affidavits and other supporting documents within ten days from receipt thereof. Moreover, the respondent shall have the right to examine all other evidence submitted by the complainant. 9.ID.; ID.; ID.; CANNOT BE DISPENSED WITH AND SHELVED ASIDE IN EXTRADITION CASES. Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. Is private respondent precluded from enjoying the right to notice and hearing at a later time without prejudice to him? Here lies the peculiarity and deviant characteristic of the evaluation procedure. On one hand, there is yet no extraditee, but ironically on the other, it results in an administrative determination which, if adverse to the person involved, may cause his immediate incarceration. The grant of the request shall lead to the filing of the extradition petition in court. The "accused" (as Section 2[c] of Presidential Decree No. 1069 calls him), faces the threat of arrest, not only after the extradition petition is filed in court, but even during the evaluation proceeding itself by virtue of the provisional arrest allowed under the treaty and the implementing law. The prejudice to the "accused" is thus blatant and manifest. Plainly, the notice and hearing requirements of administrative due process cannot be dispensed with and shelved aside.

10.ID.; ID.; POLITICAL RIGHTS AVAILABLE TO FILIPINO CITIZENS. Section 7 of Article III of the Constitution guarantees political rights which are available to citizens of the Philippines, namely: (1) the right to information on matters of public concern, and (2) the corollary right of access to official records and documents. The general right guaranteed by said provision is the right to information on matters of public concern. In its implementation, the right of access to official records is likewise conferred. These cognate or related rights are "subject to limitations as may be provided by law" (Bernas, The 1987 Phil. Constitution A Reviewer-Primer, 1997 ed., p. 104) and rely on the premise that ultimately it is an informed and critical public opinion which alone can protect the values of democratic government (Ibid.). 11.ID.; ID.; ID.; RIGHT TO INFORMATION ON MATTERS OF PUBLIC CONCERN, CONSTRUED. The concept of matters of public concern escapes exact definition. Strictly speaking, every act of a public officer in the conduct of the governmental process is a matter of public concern (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 336). This concept embraces a broad spectrum of subjects which the public may want to know, either because these directly affect their lives or simply because matters arouse the interest of an ordinary citizen (Legaspi v. Civil Service Commission, 150 SCRA [1987]). Hence the real party in interest is the people and any citizen has "standing." 12.ID.; ID.; RIGHT TO INFORMATION; IMPLEMENTED BY ACCESS TO INFORMATION WITHIN GOVERNMENT'S CONTROL. The right to information is implemented by the right of access to information within the control of the government (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 130

ed., p. 337). Such information may be contained in official records, and in documents and papers pertaining to official acts, transactions, or decisions. 13.ID.; ID.; ID.; ID.; NOT AVAILABLE DURING EVALUATION STAGE OF EXTRADITION WHERE NO OFFICIAL PHILIPPINE ACTION HAS YET BEEN DONE. In the case at bar, the papers requested by private respondent pertain to official government action from the U.S. Government. No official action from our country has yet been taken. Moreover, the papers have some relation to matters of foreign relations with the U.S. Government. Consequently, if a third party invokes this constitutional provision, stating that the extradition papers are matters of public concern since they may result in the extradition of a Filipino, we are afraid that the balance must be tilted, at such particular time, in favor of the interests necessary for the proper functioning of the government. During the evaluation procedure, no official governmental action of our own government has as yet been done; hence the invocation of the right is premature. Later, and in contrast, records of the extradition hearing would already fall under matters of public concern, because our government by then shall have already made an official decision to grant the extradition request. The extradition of a fellow Filipino would be forthcoming. 14.ID.; INTERNATIONAL LAW; RULE OF PACTA SUNT SERVANDA; CONSTRUED. The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international law, requires the parties to a treaty to keep their agreement therein in good faith. The observance of our country's legal duties under a treaty is also compelled by Section 2, Article II of the Constitution which provides that "[t]he Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations." 15.ID.; ID.; DOCTRINE OF INCORPORATION; WHEN APPLIED; CASE AT BAR. Under the doctrine of incorporation, rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere (Salonga & Yap, Public International Law, 1992 ed., p. 12). The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the constitution or statute of the local state. Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal law was enacted with proper regard for the generally accepted principles of international law in observance of the Incorporation Clause in the above-cited constitutional provision (Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts (Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984 [1961]) for the reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances (Salonga & Yap, op. cit., p. 13). 16.ID.; ID.; ID.; NO PRIMACY OF INTERNATIONAL LAW OVER NATIONAL OR MUNICIPAL LAW. The fact that international law has been made part of the law of the land does not pertain to or imply the primacy of international law over national or municipal law in the municipal sphere. The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. Accordingly, the principle lex posterior derogat priori takes effect a treaty may repeal a statute and a statute may repeal a treaty. In states where the constitution is the highest law of the land, such as the Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict with the constitution (Ibid.). 17.ID.; EXTRADITION TREATY; DOES NOT PRECLUDE APPLICATION OF DUE PROCESS. In the absence of a law or principle of law, we must apply the rules of fair play. An application of the basic twin due process rights of notice and hearing will not go against the treaty or the implementing law. Neither the Treaty nor the 131

Extradition Law precludes these rights from a prospective extradites. Similarly, American jurisprudence and procedures on extradition pose no proscription. In fact, in interstate extradition proceedings as explained above, the prospective extraditee may even request for copies of the extradition documents from the governor of the asylum state, and if he does, his right to be supplied the same becomes a demandable right (35 C.J.S. 410). 18.ADMINISTRATIVE LAW; ESSENCE OF DUE PROCESS IN ADMINISTRATIVE PROCEEDINGS. The basic principles of administrative law instruct us that "the essence of due process in administrative proceedings is an opportunity to explain one's side or an opportunity to seek reconsideration of the actions or ruling complained of (Mirano vs. NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs. NLRC, 276 SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 SCRA 602 [1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]). In essence, procedural due process refers to the method or manner by which the law is enforced (Corona vs. United Harbor Pilots Association of the Phils., 283 SCRA 31 [1997]). This Court will not tolerate the least disregard of constitutional guarantees in the enforcement of a law or treaty. Petitioner's fears that the Requesting State may have valid objections to the Requested State's non-performance of its commitments under the Extradition Treaty are insubstantial and should not be given paramount consideration. 19.REMEDIAL LAW; SUPREME COURT; EQUITY JURISDICTION; AVAILED OF ONLY IN ABSENCE OF, AND NEVER AGAINST, STATUTORY LAW OR JUDICIAL PRONOUNCEMENTS. We have ruled time and again that this Court's equity jurisdiction, which is aptly described as "justice outside legality," may be availed of only in the absence of, and never against, statutory law or judicial pronouncements (Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530 [1997]; David-Chan vs. Court of Appeals, 268 SCRA 677 [1997]). The constitutional issue in the case at bar does not even call for "justice outside legality," since private respondent's due process rights, although not guaranteed by statute or by treaty, are protected by constitutional guarantees. We would not be true to the organic law of the land if we choose strict construction over guarantees against the deprivation of liberty. That would not be in keeping with the principles of democracy on which our Constitution is premised. KAPUNAN, J., separate concurring opinion: 1.REMEDIAL LAW; SUPREME COURT; DOES NOT EXERCISE JURISDICTION OVER CASES WHICH ARE MOOT AND ACADEMIC. Since, as alleged in the petition, a copy of the TRO was served on respondents below on August 10, 1999, the TRO ceased to be effective on August 30, 1999; consequently, the instant petition has become moot and academic. This Court does not exercise jurisdiction over cases which are moot and academic or those not ripe for judicial consideration. 2.CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; PERSON SUBJECT OF EXTRADITION PROCEEDINGS ENTITLED TO HAVE ACCESS AND CONTROVERT EVIDENCE AGAINST HIM. While the evaluation process conducted by the Department of Justice is not exactly a preliminary investigation of criminal cases, it is akin to a preliminary investigation because it involves the basic constitutional rights of the person sought to be extradited. A person ordered extradited is arrested, forcibly taken from his house, separated from his family and delivered to a foreign state. His rights of abode, to privacy, liberty and pursuit of happiness are taken away from him a fate as harsh and cruel as a conviction of a criminal offense. For this reason, he is entitled to have access to the evidence against him and the right to controvert them. With respect to petitioner's claim that private respondent has no right to demand access to the documents relating to the request for extradition, suffice it to say, that any document used in a proceeding that would jeopardize a person's constitutional rights is matter of public concern. As Martin Luther King said, "injustice anywhere is a threat to justice everywhere," so any violation of one's rights guaranteed by the Bill of Rights is everybody's concern because they, one way or another, directly or indirectly, affect the rights of life and liberty of all the citizens as a whole. 132

3.ID.; ID.; ID.; RIGHT THERETO, UNIVERSAL BASIC RIGHT. While the extradition treaty and P.D. 1069 do not provide for a preliminary investigation, neither does either prohibit it. The right to due process is a universal basic right which is deemed written into our laws and treaties with foreign countries. 4.ID.; ID.; ID.; APPLICABLE TO EXTRADITION PROCEEDINGS. Due process rights in a preliminary investigation is now an established principle. The respondent has a right of access to all of the evidence. He has the right to submit controverting evidence. The prosecuting official who conducts the preliminary investigation is required to be neutral, objective, and impartial in resolving the issue of probable cause. I see no reason why the same rights may not be accorded a person sought to be extradited at the stage where the Department of Justice evaluates whether a petition for extradition would be filed before a regional trial court. If denied such rights, not only denial of due process rights but of equal protection may be raised. 5.ID.; ID.; ID.; NOTICE AND HEARING; MUST BE GRANTED AT TIME DEPRIVATION CAN STILL BE PREVENTED. But why must he wait until the petition for extradition is filed? As succinctly expressed, if the right to notice and hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented. Like the filing of an information in a criminal case, the mere filing of a petition for extradition causes immediate impairment of the liberty of the person sought to be extradited and a substantial curtailment of other rights. His arrest may be immediately ordered by the regional trial court. He would be compelled to face an open and public trial. He will be constrained to seek the assistance of counsel and incur other expenses of litigation. The public eye would be directed at him with all the concomitant intrusions to his right to privacy. Where the liberty of a person is at risk, and extradition strikes at the very core of liberty, invocation of due process rights can never be too early. QUISUMBING, J., concurring opinion: 1.CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS OF ACCUSED; TAKES PRECEDENCE OVER TREATY RIGHTS CLAIMED BY CONTRACTING STATE. The human rights of a person, whether citizen or alien, and the rights of the accused guaranteed in our Constitution should take precedence over treaty rights claimed by a contracting state. Stated otherwise, the constitutionally mandated duties of our government to the individual deserve preferential consideration when they collide with its treaty obligations to the government of another state. This is so although we recognize treaties as a source of binding obligations under generally accepted principles of international law incorporated in our Constitution as part of the law of the land. 2.ID.; EXTRADITION TREATY; CANNOT BE UTILIZED FOR POLITICAL OFFENSES OR POLITICALLY MOTIVATED CHARGES. That private respondent is a Filipino citizen is not decisive of the issue here, although it is obviously pertinent. Even if he were a resident alien (other than American perhaps), he is, in my view, entitled to our full protection against the hazards of extradition (or deportation, similarly) from the very start. More so because, looking at the facts adduced at the hearing and on the record of this case, the charges against him involve or are co-mingled with, if not rooted in, certain offenses of a political nature or motivation such as the ones involving alleged financial contributions to a major American political party. If so, long established is the principle that extradition could not be utilized for political offenses or politically motivated charges. YNARES-SANTIAGO, J., concurring opinion: 1.CONSTITUTIONAL LAW; EXTRADITION TREATY; PERSON PRESUMED INNOCENT AND NOT COVERED BY SANCTIONS UNTIL PROVED TO BE SUBJECT OF EXTRADITION. Until proved to be a valid subject for extradition, a person is presumed innocent or not covered by the sanctions of either criminal law or international treaty. At any stage where a still prospective extraditee only seeks to know so that he can 133

prepare and prove that he should not be extradited, there should be no conflict over the extension to him of constitutional protections guaranteed to aliens and citizens alike. 2.ID.; ID.; SILENCE IN TREATY OVER CITIZEN'S RIGHT DURING EVALUATION STAGE DOES NOT NECESSARILY EXCLUDE RIGHT TO PRELIMINARY EXAMINATION OR INVESTIGATION. Petitioner cites as a reason for the denial of respondent's requests, Article 7 of the Treaty. Article 7 enumerates the required documents and establishes the procedures under which the documents shall be submitted and admitted as evidence. There is no specific provision on how the Secretary of Foreign Affairs should conduct his evaluation. The Secretary of Justice is not even in the picture at this stage. Under petitioner's theory, silence in the treaty over a citizen's rights during the evaluation stage is interpreted as deliberate exclusion by the contracting states of the right to know. Silence is interpreted as the exclusion of the right to a preliminary examination or preliminary investigation provided by the laws of either one of the two states. The right to be informed of charges which may lead to court proceedings and result in a deprivation of liberty is ordinarily routine. It is readily available to one against whom the state's coercive power has already been focused. I fail to see how silence can be interpreted as exclusion. The treaty is silent because at this stage, the preliminary procedure is still an internal matter. And when a law or treaty is silent, it means a right or privilege may be granted. It is not the other way around. 3.ID.; ID.; PRELIMINARY EXAMINATION, PURPOSE. Paraphrasing Hashim vs. Boncan, 71 Phil. 216; Trocio vs. Manta, 118 SCRA 241 (1941); and Salonga vs. Hon. Pao, 134 SCRA 438 (1985), the purpose of a preliminary evaluation is to secure an innocent person against hasty, faulty and, therefore, oppressive proceedings; to protect him from an open and extensively publicized accusation of crimes; to spare him the trouble, expense, and anxiety of a public trial; and also to protect the state from useless and expensive trials. Even if the purpose is only to determine whether or not the respondent is a proper subject for extradition, he is nonetheless entitled to the guarantees of fairness and freedom accorded to those charged with ordinary crimes in the Philippines. 4.ID.; BILL OF RIGHTS; RIGHT TO BE INFORMED; CONSTRUED. The right to be informed is related to the constitutional right to a speedy trial. The constitutional guarantee extends to the speedy disposition of cases before all quasi-judicial and administrative bodies (Constitution, Art. III, Sec. 16). Speedy disposition, however, does not mean the deliberate exclusion of the defendant or respondent from the proceedings. As this Court ruled in Acebedo vs. Sarmiento, 36 SCRA 247 (1970), "the right to a speedy trial, means one free from vexatious, capricious and oppressive delays, its salutary objective being to assure that an innocent person may be free from the anxiety and expense of a court litigation or, if otherwise, of having his guilt (in this case, his being extradited) determined within the shortest possible time compatible with the presentation and consideration of whatsoever legitimate defense he may interpose." VITUG, J., separate opinion: 1.CONSTITUTIONAL LAW; EXTRADITION TREATY; EXTRADITEE ENTITLED TO COPIES OF PERTINENT DOCUMENTS WHILE APPLICATION FOR EXTRADITION IS BEING EVALUATED. The only real issue before the Court is whether or not private respondent can validly ask for copies of pertinent documents while the application for extradition against him is still undergoing process by the Executive Department. There is, I agree with the majority, a right of access to such extradition documents conformably with the provisions of Article III, Section 7, of the Philippine Constitution. The constitutional right to free access to information of public concern is circumscribed only by the fact that the desired information is not among the species exempted by law from the operation of the constitutional guaranty and that the exercise of the right conforms with such reasonable conditions as may be prescribed by law. 2.ID.; BILL OF RIGHTS; RIGHT TO FREE ACCESS TO INFORMATION ON MATTERS OF PUBLIC CONCERN; "PUBLIC CONCERN," CONSTRUED. There is no hornbook rule to determine whether or not an information is 134

of public concern. The term "public concern" eludes exactitude, and it can easily embrace a broad spectrum of matters which the public may want to know either because the subject thereof can affect their lives or simply because it arouses concern. 3.ID.; ID.; DUE PROCESS; CONSTRUED. The constitutional right to due process secures to everyone an opportunity to be heard, presupposing foreknowledge of what he may be up against, and to submit any evidence that he may wish to proffer in an effort to clear himself. Like "public concern," the term due process does not admit of any restrictive definition. Justice Frankfurter has viewed this flexible concept, as being "a compounded by history, reason, the past course of decisions, and stout confidence in the democratic faith." The framers of our own Constitution, it would seem, have deliberately intended to make it malleable to the ever-changing milieu of society. Hitherto, it is dynamic and resilient adaptable to every situation calling for its applications that makes it appropriate to accept an enlarged concept of the term as and when there is a possibility that the right of an individual to life, liberty and property might be diffused. Verily, whenever there is an imminent threat to the life, liberty or property of any person in any proceeding conducted by or under the auspices of the State, his right to due process of law, when demanded, must not be ignored.

4.ID.; ID.; ID.; CLASSIFICATIONS. This right is two-pronged substantive and procedural due process founded, in the first instance, on Constitutional or statutory provisions, and in the second instance, on accepted rules of procedures. Substantive due process looks into the extrinsic and intrinsic validity of the law that figures to interfere with the right of a person to his life, liberty and property. Procedural due process the more litigated of the two focuses on the rules that are established in order to ensure meaningful adjudication in the enforcement and implementation of the law. PUNO, J., dissenting opinion: 1.CONSTITUTIONAL LAW; EXTRADITION TREATY; EXTRADITION, CONCEPT. Extradition is well-defined concept and is more a problem in international law. It is the "process by which persons charged with or convicted of crime against the law of a State and found in a foreign State are returned by the latter to the former for trial or punishment. It applies to those who are merely charged with an offense but have not been brought to trial; to those who have been tried and convicted and have subsequently escaped from custody; and those who have been convicted in absentia. It does not apply to persons merely suspected of having committed an offense but against whom no charges has been laid or to a person whose presence is desired as a witness or for obtaining or enforcing a civil judgment." 2.ID.; ID.; TREATY-MAKING POWER BELONGS TO EXECUTIVE AND LEGISLATIVE DEPARTMENTS. In our constitutional scheme, the making of a treaty belongs to the executive and legislative departments of our government. Between these two departments, the executive has a greater say in the making of a treaty. Under Section 21, Article VII of our Constitution, the President has the sole power to negotiate treaties and international agreements although to be effective, they must be concurred in by at least two thirds of all the members of the Senate. 3.ID.; PRESIDENT; TRADITIONALLY ACCORDED WIDER DEGREE OF DISCRETION IN CONDUCT OF FOREIGN AFFAIRS. The presidential role in a foreign affairs is dominant and the President is traditionally accorded a wider degree of discretion in the conduct of foreign affairs. The regularity, nay, validity of his actions are adjudged under less stringent standards, lest their judicial repudiation lead to breach of an international obligation, rupture of state relations, forfeiture of confidence, national embarrassment and a plethora of other problems with equally undesirable consequences.

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4.ID.; EXTRADITION TREATY; EXTRADITION PROCEEDINGS, NOT CRIMINAL; CONSTITUTIONAL RIGHTS OF ACCUSED CANNOT BE INVOKED BY EXTRADITEE. An extradition proceeding is sui generis. It is, thus, futile to determine what it is. What is certain is that it is not a criminal proceeding where there is an accused who can claim the entire array of rights guaranteed by the Bill of Rights. Let it be stressed that in an extradition the guilt or innocence of an accused cannot be invoked by an extraditee.

proceeding, there is no accused and the guilt or innocence of the extraditee will not be passed upon by our executive officials nor by the extradition judge. Hence, constitutional rights that are only relevant to determine
5.ID.; ID.; EXTRADITION PROCEEDINGS DIFFERENT FROM CRIMINAL PROCEEDINGS. Indeed, an extradition proceeding is summary in nature which is untrue of criminal proceedings. Even the rules of evidence are different in an extradition proceeding. Admission of evidence is less stringent, again because the guilt of the extraditee is not under litigation. It is not only the quality but even the quantum of evidence in extradition proceeding is different. In a criminal case, an accused can only be convicted by proof beyond reasonable doubt. In an extradition proceeding, an extraditee can be ordered extradited "upon showing of the existence of a prima facie case." 6.ID.; ID.; EXTRADITION DECISION DIFFERENT FROM JUDICIAL DECISION. The nature of an extradition decision is different from a judicial decision whose finality cannot be changed by executive fiat. Our courts may hold an individual extraditable but the ultimate decision to extradite the individual lies in the hands of the Executive. Section 3, Article 3 of the RP-US Extradition Treaty specifically provides that "extradition shall not be granted if the executive authority of the Requested State determines that the request was politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation." In the United States, the Secretary of State exercises this ultimate power and is conceded considerable discretion. He balances the equities of the case and the demands of the nation's foreign relations. In sum, he is not straitjacketed by strict legal considerations like an ordinary court. 7.ID.; ID.; ISSUE ON PROVISIONAL ARREST RENDERED MOOT BY FILING OF REQUEST FOR EXTRADITION. The issue of whether respondent Jimenez will be provisionally arrested is now moot. Under Section 1 of Article 9 of the RP-US Extradition Treaty, in relation to Section 20(a) of PD No. 1069, the general principle is enunciated that a request for provisional arrest must be made pending receipt of the request for extradition. By filing the request for extradition, the US authorities have implicitly decided not to move for respondent's provisional arrest. But more important, a request for respondent's arrest does not mean he will be the victim

of an arbitrary arrest. He will be given due process before he can be arrested.

8.ID.; ID.; REQUEST FOR PROVISIONAL ARREST; GRANT THEREOF, NOT MINISTERIAL. The due process

protection of the private respondent against arbitrary arrest is written in cyrillic letters in Article 9 of the treaty and Section 20 of P.D. No. 1069. It is self-evident under these provisions that a request for provisional arrest does not mean it will be granted ipso facto. The request must comply with certain requirements. It must be

based on an "urgent" factor. This is subject to verification and evaluation by our executive authorities. The request can be denied if not based on a real exigency or if the supporting documents are insufficient. The protection of the respondent against arbitrary provisional arrest does not stop on the administrative level. For even if the Director of the National Bureau of Investigation agrees with the request for the provisional arrest of the respondent, still he has to apply for a judicial warrant from the "presiding judge of the Court of First Instance (now RTC) of the province or city having jurisdiction of the place. . . . ." It is a judge who will issue a warrant for the provisional arrest of the respondent. The judge has to comply with Section 2, Article III of the Constitution which provides that "no . . . warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the . . . persons or things to be seized." The message that leaps to the eye is that compliance with this requirement precludes any arbitrary arrest.

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9.ID.; ID.; DENIAL OF REQUEST TO BE FURNISHED DOCUMENTS DURING EVALUATION STAGE, NOT A DENIAL OF DUE PROCESS. Denying respondent's constitutional claim to be furnished all documents relating to the request for his extradition by the US authorities during their evaluation stage will not subvert his right to fundamental fairness. It should be stressed that this is not a case where the respondent will not be given an opportunity to know the basis of the request for his extradition. In truth, and contrary to the impression of the majority, P.D. No. 1069 fixes the specific time when he will be given the papers constituting the basis for his extradition. The time is when he is summoned by the extradition court and required to answer the petition for extradition. Upon receipt of the summons and the petition, respondent is free to foist all defenses available to him. Such an opportunity does not deny him fairness which is the essence of due process of law. PANGANIBAN, J., dissenting opinion: 1.CONSTITUTIONAL LAW; EXTRADITION TREATY; STAGES IN EXTRADITION PROCEEDINGS. There are essentially two stages in extradition proceedings: (1) the preliminary evaluation stage, whereby the executive authority of the requested state ascertains whether the extradition request is supported by the documents and information required under the Extradition Treaty; and (2) the extradition hearing, whereby the petition for extradition is heard before a court of justice, which determines whether the accused should be extradited. 2.ID.; ID.; PERSON SUBJECT OF EXTRADITION, DURING EVALUATION STAGE, NOT ENTITLED TO COPIES OF PERTINENT DOCUMENTS. The instant petition refers only to the first stage. Private respondent claims that he has a right to be notified and to be heard at this early stage. However, even the ponencia admits that neither the RP-US Extradition Treaty nor PD 1069 (the Philippine Extradition Law) expressly requires the Philippine government, upon receipt of the request for extradition, to give copies thereof and its supporting documents to the prospective extraditee, much less to give him an opportunity to be heard prior to the filing of the petition in court. 3.ID.; ID.; RP-US TREATY; OCCASIONS WHERE PROSPECTIVE EXTRADITEE MAY BE DEPRIVED OF LIBERTY. There are two occasions wherein the prospective extraditee may be deprived of liberty: (1) in case of a provisional arrest pending the submission of the extradition request and (2) his temporary arrest during the pendency of the extradition petition in court. 4.ID.; ID.; ID.; PROVISIONAL ARREST; REQUISITES. Article 9 on provisional arrest is not automatically operative at all times, and its enforcement does not depend solely on the discretion of the requested state. From the wordings of the provision itself, there are at least three requisites: (1) there must be an urgency, and (2) there is a corresponding request (3) which must be made prior to the presentation of the request for extradition.

5.ID.; ID.; ID.; ID.; ID.; ABSENCE OF REQUEST IN CASE AT BAR. In the instant case, there appears to be no urgency characterizing the nature of the extradition of private respondent. Petitioner does not claim any such urgency. There is no request from the United States for the provisional arrest of Mark Jimenez either. And the secretary of justice stated during the Oral Argument that he had no intention of applying for the provisional arrest of private respondent. Finally, the formal request for extradition has already been made; therefore, provisional arrest is not likely, as it should really come before the extradition request. Under the outlined facts of this case, there is no open door for the application of Article 9, contrary to the apprehension of private respondent. In other words, there is no actual danger that Jimenez will be provisionally arrested or deprived of his liberty. There is as yet no threat that his rights would be trampled upon, pending the filing in court of the petition for his extradition. Hence, there is no substantial gain to be achieved in requiring the foreign affairs (or justice) secretary to notify and hear him during the preliminary stage, which basically 137

involves only the exercise of the ministerial power of checking the sufficiency of the documents attached to the extradition request. 6.ID.; ID.; ID.; EXECUTIVE AUTHORITY, WITHOUT POWER TO DETERMINE SUFFICIENCY OF EVIDENCE TO ESTABLISH PROBABLE CAUSE. It must be borne in mind that during the preliminary stage, the foreign affairs secretary's determination of whether the offense charged is extraditable or politically motivated is merelypreliminary. The same issue will be resolved by the trial court. Moreover, it is also the power and the duty of the court, not the executive authority, to determine whether there is sufficient evidence to establish probable cause that the extraditee committed the crimes charged. The sufficiency of the evidence of criminality is to be determined based on the laws of the requested state. Private Respondent Jimenez will, therefore, definitely have his full opportunity before the court, in case an extradition petition will indeed be filed, to be heard on all issues including the sufficiency of the documents supporting the extradition request. 7.REMEDIAL LAW; SUPREME COURT; DOES NOT DECLARE JUDGMENTS OR GRANT RELIEFS BASED ON SPECULATIONS. Private respondent insists that the United States may still request his provisional arrest at any time. That is purely speculative. It is elementary that this Court does not declare judgments or grant reliefs based on speculations, surmises or conjectures. 8.CONSTITUTIONAL LAW; TREATIES; CONTRACTING PARTIES PRESUMED TO PERFORM OBLIGATIONS WITH UBERRIMAE FIDEI. The right of one state to demand from another the return of an alleged fugitive from justice and the correlative duty to surrender the fugitive to the demanding country exist only when created by a treaty between the two countries. International law does not require the voluntary surrender of a fugitive to a foreign government, absent any treaty stipulation requiring it. When such a treaty does exist, as between the Philippines and the United States, it must be presumed that the contracting states perform their obligations under it with uberrimae fedei, treaty obligations being essentially characterized internationally by comity and mutual respect.

DECISION

MELO, J :
p

The individual citizen is but a speck of particle or molecule vis-a-vis the vast and overwhelming powers of government. His only guarantee against oppression and tyranny are his fundamental liberties under the Bill of Rights which shield him in times of need. The Court is now called to decide whether to uphold a citizen's basic due process rights, or the government's ironclad duties under a treaty. The bugle sounds and this Court must once again act as the faithful guardian of the fundamental writ. The petition at our doorstep is cast against the following factual backdrop: On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1069 "Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes in a Foreign Country." The Decree is founded on: the doctrine of incorporation under the Constitution; the mutual concern for the suppression of crime both in the state where it was committed and the state where the criminal may have escaped; the extradition treaty with the Republic of Indonesia and the intention of the Philippines to enter into similar treaties with other interested countries; and the need for rules to guide the executive department and the courts in the proper implementation of said treaties.
cdrep

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On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the Government of the Republic of the Philippines, signed in Manila the "Extradition Treaty Between the Government of the Republic of the Philippines and the Government of the United States of America" (hereinafter referred to as the RP-US Extradition Treaty). The Senate, by way of Resolution No. 11, expressed its concurrence in the ratification of said treaty. It also expressed its concurrence in the Diplomatic Notes correcting Paragraph (5)(a), Article 7 thereof (on the admissibility of the documents accompanying an extradition request upon certification by the principal diplomatic or consular officer of the requested state resident in the Requesting State). On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.S. Note Verbale No. 0522 containing a request for the extradition of private respondent Mark Jimenez to the United States. Attached to the Note Verbale were the Grand Jury Indictment, the warrant of arrest issued by the U.S. District Court, Southern District of Florida, and other supporting documents for said extradition. Based on the papers submitted, private respondent appears to be charged in the United States with violation of the following provisions of the United States Code (USC):
A)18 USC 371 (Conspiracy to commit offense or to defraud the United States; two [2] counts; Maximum Penalty 5 years on each count); B)26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum Penalty 5 years on each count); C)18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum Penalty 5 years on each count); D)18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty 5 years on each count);
LLjur

E)2 USC 441f (Election contributions in name of another; thirty-three [33] counts; Maximum Penalty less than one year). (p. 14, Rollo.)

On the same day, petitioner issued Department Order No. 249 designating and authorizing a panel of attorneys to take charge of and to handle the case pursuant toSection 5(1) of Presidential Decree No. 1069. Accordingly, the panel began with the "technical evaluation and assessment" of the extradition request and the documents in support thereof. The panel found that the "official English translation of some documents in Spanish were not attached to the request and that there are some other matters that needed to be addressed" (p. 15, Rollo). Pending evaluation of the aforestated extradition documents, private respondent, through counsel, wrote a letter dated July 1, 1999 addressed to petitioner requesting copies of the official extradition request from the U.S. Government, as well as all documents and papers submitted therewith; and that he be given ample time to comment on the request after he shall have received copies of the requested papers. Private respondent also requested that the proceedings on the matter be held in abeyance in the meantime. Later, private respondent requested that preliminarily, he be given at least a copy of, or access to, the request of the United States Government, and after receiving a copy of the Diplomatic Note, a period of time to amplify on his request.

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In response to private respondent's July 1, 1999 letter, petitioner, in a reply-letter dated July 13, 1999 (but received by private respondent only on August 4, 1999), denied the foregoing requests for the following reasons:
1.We find it premature to furnish you with copies of the extradition request and supporting documents from the United States Government, pending evaluation by this Department of the sufficiency of the extradition documents submitted in accordance with the provisions of the extradition treaty and our extradition law. Article 7 of the Extradition Treaty between the Philippines and the United States enumerates the documentary requirements and establishes the procedures under which the documents submitted shall be received and admitted as evidence. Evidentiary requirements under our domestic law are also set forth in Section 4 of P.D. No. 1069. Evaluation by this Department of the aforementioned documents is not a preliminary investigation nor akin to preliminary investigation of criminal cases. We merely determine whether the procedures and requirements under the relevant law and treaty have been complied with by the Requesting Government. The constitutionally guaranteed rights of the accused in all criminal prosecutions are therefore not available. It is only after the filing of the petition for extradition when the person sought to be extradited will be furnished by the court with copies of the petition, request and extradition documents and this Department will not pose any objection to a request for ample time to evaluate said documents. 2.The formal request for extradition of the United States contains grand jury information and documents obtained through grand jury process covered by strict secrecy rules under United States law. The United States had to secure orders from the concerned District Courts authorizing the United States to disclose certain grand jury information to Philippine government and law enforcement personnel for the purpose of extradition of Mr. Jimenez. Any further disclosure of the said information is not authorized by the United States District Courts. In this particular extradition request the United States Government requested the Philippine Government to prevent unauthorized disclosure of the subject information. This Department's denial of your request is consistent with Article 7 of the RP-US Extradition Treaty which provides that the Philippine Government must represent the interests of the United States in any proceedings arising out of a request for extradition. The Department of Justice under P.D. No. 1069 is the counsel of the foreign governments in all extradition requests.

3.This Department is not in a position to hold in abeyance proceedings in connection with an extradition request. Article 26 of the Vienna Convention on the Law of Treaties, to which we are a party provides that "[E]very treaty in force is binding upon the parties to it and must be performed by them in good faith." Extradition is a tool of criminal law enforcement and to be effective, requests for extradition or surrender of accused or convicted persons must be processed expeditiously. (pp. 77-78, Rollo.)

Such was the state of affairs when, on August 6, 1999, private respondent filed with the Regional Trial Court of the National Capital Judicial Region a petition against the Secretary of Justice, the Secretary of Foreign Affairs, and the Director of the National Bureau of Investigation, for mandamus (to compel herein petitioner to furnish private respondent the extradition documents, to give him access thereto, and to afford him an opportunity to comment on, or oppose, the extradition request, and thereafter to evaluate the request impartially, fairly and objectively); certiorari (to set aside herein petitioner's letter dated July 13, 1999); and prohibition (to restrain petitioner from considering the extradition request and from filing an extradition petition in court; and to enjoin the Secretary of Foreign Affairs and the Director of the NBI from performing any act directed to the extradition of private respondent to the United States), with an application for the issuance of a temporary restraining order and a writ of preliminary injunction (pp. 104-105, Rollo). 140
prcd

The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled to Branch 25 of said regional trial court stationed in Manila which is presided over by the Honorable Ralph C. Lantion. After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who appeared in his own behalf, moved that he be given ample time to file a memorandum, but the same was denied. On August 10, 1999, respondent judge issued an order dated the previous day, disposing:
WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of Justice, the Secretary of Foreign Affairs and the Director of the National Bureau of Investigation, their agents and/or representatives to maintain the status quo by refraining from committing the acts complained of; from conducting further proceedings in connection with the request of the United States Government for the extradition of the petitioner; from filing the corresponding Petition with a Regional Trial court; and from performing any act directed to the extradition of the petitioner to the United States, for a period of twenty (20) days from service on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court. The hearing as to whether or not this Court shall issue the preliminary injunction, as agreed upon by the counsels for the parties herein, is set on August 17, 1999 at 9:00 o'clock in the morning. The respondents are, likewise, ordered to file their written comment and/or opposition to the issuance of a Preliminary Injunction on or before said date. SO ORDERED. (pp. 110-111, Rollo.)

Forthwith, petitioner initiated the instant proceedings, arguing that:

PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE TEMPORARY RESTRAINING ORDER BECAUSE: I. BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS COMPLAINED OF, I. E., TO DESIST FROM REFUSING PRIVATE RESPONDENT ACCESS TO THE OFFICIAL EXTRADITION REQUEST AND DOCUMENTS AND FROM DENYING PRIVATE RESPONDENT AN OPPORTUNITY TO FILE A COMMENT ON, OR OPPOSITION TO, THE REQUEST, THE MAIN PRAYER FOR A WRIT OF MANDAMUS IN THE PETITION FOR MANDAMUS,CERTIORARI AND PROHIBITION WAS, IN EFFECT, GRANTED SO AS TO CONSTITUTE AN ADJUDICATION ON THE MERITS OF THE MANDAMUS ISSUES; II. PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL DUTIES UNDER THE EXTRADITION TREATY AND THE PHILIPPINE EXTRADITION LAW; III. THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON ITS FACE, FORMALLY AND SUBSTANTIALLY DEFICIENT; AND IV.

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PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS PROTECTION AND ENFORCEMENT, AND WILL NOT SUFFER ANY IRREPARABLE INJURY. (pp. 19-20, Rollo.)

On August 17, 1999, the Court required private respondent to file his comment. Also issued, as prayed for, was a temporary restraining order (TRO) providing:
NOW, THEREFORE, effective immediately and continuing until further orders from this Court, You, Respondent Judge Ralph C. Lantion, your agents, representatives or any person or persons acting in your place or stead are hereby ORDERED to CEASE and DESIST from enforcing the assailed order dated August 9, 1999 issued by public respondent in Civil Case No. 99-94684.

GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court of the Philippines, this 17th day of August 1999.
(pp. 120-121, Rollo.)

The case was heard on oral argument on August 31, 1999, after which the parties, as directed, filed their respective memoranda. From the pleadings of the opposing parties, both procedural and substantive issues are patent. However, a review of these issues as well as the extensive arguments of both parties, compel us to delineate the focal point raised by the pleadings: During the evaluation stage of the extradition proceedings, is private respondent entitled to the two basic due process rights of notice and hearing? An affirmative answer would necessarily render the proceedings at the trial court, moot and academic (the issues of which are substantially the same as those before us now), while a negative resolution would call for the immediate lifting of the TRO issued by this Court dated August 24, 1999, thus allowing petitioner to fast-track the process leading to the filing of the extradition petition with the proper regional trial court. Corollarily, in the event that private respondent is adjudged entitled to basic due process rights at the evaluation stage of the extradition proceedings, would this entitlement constitute a breach of the legal commitments and obligations of the Philippine Government under the RP-US Extradition Treaty? And assuming that the result would indeed be a breach, is there any conflict between private respondent's basic due process rights and the provisions of the RP-US Extradition Treaty? The issues having transcendental importance, the Court has elected to go directly into the substantive merits of the case, brushing aside peripheral procedural matters which concern the proceedings in Civil Case No. 9994684, particularly the propriety of the filing of the petition therein, and of the issuance of the TRO of August 17, 1999 by the trial court. To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition Treaty which was executed only on November 13, 1994, ushered into force the implementing provisions of Presidential Decree No. 1069, also called as the Philippine Extradition Law. Section 2(a) thereof defines extradition as "the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government." The portions of the Decree relevant to the instant case which involves a charged and not convicted individual, are abstracted as follows:

The Extradition Request

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The request is made by the Foreign Diplomat of the Requesting State, addressed to the Secretary of Foreign Affairs, and shall be accompanied by:
1.The original or an authentic copy of the criminal charge and the warrant of arrest issued by the authority of the Requesting State having jurisdiction over the matter, or some other instruments having equivalent legal force; 2.A recital of the acts for which extradition is requested, with the fullest particulars as to the name and identity of the accused, his whereabouts in the Philippines, if known, the acts or omissions complained of, and the time and place of the commission of these acts; 3.The text of the applicable law or a statement of the contents of said law, and the designation or description of the offense by the law, sufficient for evaluation of the request; and 4.Such other documents or information in support of the request. (Section 4, Presidential Decree No. 1069.)

Section 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign Affairs, pertinently provides:
. . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet the requirements of this law and the relevant treaty or convention, he shall forward the request together with the related documents to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to take charge of the case.

The above provision shows only too clearly that the executive authority given the task of evaluating the sufficiency of the request and the supporting documents is the Secretary of Foreign Affairs. What then is the coverage of this task? In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the executive authority must ascertain whether or not the request is supported by:
1.Documents, statements, or other types of information which describe the identity and probable location of the person sought; 2.A statement of the facts of the offense and the procedural history of the case; 3.A statement of the provisions of the law describing the essential elements of the offense for which extradition is requested; 4.A statement of the provisions of law describing the punishment for the offense; 5.A statement of the provisions of the law describing any time limit on the prosecution or the execution of punishment for the offense;

6.Documents, statements, or other types of information specified in paragraph 3 or paragraph 4 of said Article, as applicable. (Paragraph 2, Article 7, Presidential Decree No. 1069.)

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7.Such evidence as, according to the law of the Requested State, would provide probable cause for his arrest and committal for trial if the offense had been committed there; 8.A copy of the warrant or order of arrest issued by a judge or other competent authority; and 9.A copy of the charging document. (Paragraph 3, ibid.)

The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying documents received in support of the request had been certified by the principal diplomatic or consular officer of the Requested State resident in the Requesting State (Embassy Note No. 052 from U.S. Embassy; Embassy Note No. 951309 from the Department of Foreign Affairs). In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be granted if the executive authority of the Requested State determines that the request is politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation."
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The Extradition Petition

Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its supporting documents are sufficient and complete in form and substance, he shall deliver the same to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to take charge of the case (Paragraph [1], Section 5, P.D. No. 1069). The lawyer designated shall then file a written petition with the proper regional trial court of the province or city, with a prayer that the court take the extradition request under consideration (Paragraph [2], ibid.). The presiding judge of the regional trial court, upon receipt of the petition for extradition, shall, as soon as practicable, issue an order summoning the prospective extraditee to appear and to answer the petition on the day and hour fixed in the order. The judge may issue a warrant of arrest if it appears that the immediate arrest and temporary detention of the accused will best serve the ends of justice (Paragraph [1], Section 6, ibid.), particularly to prevent the flight of the prospective extraditee.

The Extradition Hearing

The Extradition Law does not specifically indicate whether the extradition proceeding is criminal, civil, or a special proceeding. Nevertheless, Paragraph [1], Section 9 thereof provides that in the hearing of the extradition petition, the provisions of the Rules of Court, insofar as practicable and not inconsistent with the summary nature of the proceedings, shall apply. During the hearing, Section 8 of the Decree provides that the attorney having charge of the case may, upon application by the Requesting State, represent the latter throughout the proceedings. Upon conclusion of the hearing, the court shall render a decision granting the extradition and giving the reasons therefor upon a showing of the existence of a prima facie case, or dismiss the petition (Section 10, ibid.). Said decision is appealable to the Court of Appeals, whose decision shall be final and immediately executory (Section 12, ibid.). The provisions of the Rules of Court governing appeal in criminal cases in the Court of Appeals shall apply in the aforementioned appeal, except for the required 15-day period to file brief (Section 13, ibid.). The trial court determines whether or not the offense mentioned in the petition is extraditable based on the application of the dual criminality rule and other conditions mentioned in Article 2 of the RP-US Extradition 144

Treaty. The trial court also determines whether or not the offense for which extradition is requested is a political one (Paragraph [1], Article 3, RP-US Extradition Treaty). With the foregoing abstract of the extradition proceedings as backdrop, the following query presents itself: What is the nature of the role of the Department of Justice at the evaluation stage of the extradition proceedings? A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice is to file the extradition petition after the request and all the supporting papers are forwarded to him by the Secretary of Foreign Affairs. It is the latter official who is authorized to evaluate the extradition papers, to assure their sufficiency, and under Paragraph [3], Article 3 of the Treaty, to determine whether or not the request is politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation. Ipso facto, as expressly provided in Paragraph [1], Section 5 of the Extradition Law, the Secretary of Justice has the ministerial duty of filing the extradition papers. However, looking at the factual milieu of the case before us, it would appear that there was failure to abide by the provisions of Presidential Decree No. 1069. For while it is true that the extradition request was delivered to the Department of Foreign Affairs on June 17, 1999, the following day or less than 24 hours later, the Department of Justice received the request, apparently without the Department of Foreign Affairs discharging its duty of thoroughly evaluating the same and its accompanying documents. The statement of an assistant secretary at the Department of Foreign Affairs that his Department, in this regard, is merely acting as a post office, for which reason he simply forwarded the request to the Department of Justice, indicates the magnitude of the error of the Department of Foreign Affairs in taking lightly its responsibilities. Thereafter, the Department of Justice took it upon itself to determine the completeness of the documents and to evaluate the same to find out whether they comply with the requirements laid down in the Extradition Law and the RP-US Extradition Treaty. Petitioner ratiocinates in this connection that although the Department of Justice had no obligation to evaluate the extradition documents, the Department also had to go over them so as to be able to prepare an extradition petition (tsn, August 31, 1999, pp. 24-25). Notably, it was also at this stage where private respondent insisted on the following: (1) the right to be furnished the request and the supporting papers; (2) the right to be heard which consists in having a reasonable period of time to oppose the request, and to present evidence in support of the opposition; and (3) that the evaluation proceedings be held in abeyance pending the filing of private respondent's opposition to the request. The two Departments seem to have misread the scope of their duties and authority, one abdicating its powers and the other enlarging its commission. The Department of Foreign Affairs, moreover, has, through the Solicitor General, filed a manifestation that it is adopting the instant petition as its own, indirectly conveying the message that if it were to evaluate the extradition request, it would not allow private respondent to participate in the process of evaluation. Plainly then, the record cannot support the presumption of regularity that the Department of Foreign Affairs thoroughly reviewed the extradition request and supporting documents and that it arrived at a well-founded judgment that the request and its annexed documents satisfy the requirements of law. The Secretary of Justice, eminent as he is in the field of law, could not privately review the papers all by himself. He had to officially constitute a panel of attorneys. How then could the DFA Secretary or his undersecretary, in less than one day, make the more authoritative determination? The evaluation process, just like the extradition proceedings proper, belongs to a class by itself. It is sui generis. It is not a criminal investigation, but it is also erroneous to say that it is purely an exercise of ministerial functions. At such stage, the executive authority has the power: (a) to make a technical assessment of the completeness and sufficiency of the extradition papers; (b) to outrightly deny the request if on its face and on the face of the supporting documents the crimes indicated are not extraditable; and (c) to make a 145

determination whether or not the request is politically motivated, or that the offense is a military one which is not punishable under non-military penal legislation (tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph [3], Article 3, RP-US Extradition Treaty). Hence, said process may be characterized as an investigative or inquisitorial process in contrast to a proceeding conducted in the exercise of an administrative body's quasi-judicial power. In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence; (b) determining facts based upon the evidence presented; and (c) rendering an order or decision supported by the facts proved (De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198, citing Morgan vs. United States, 304 U.S. 1). Inquisitorial power, which is also known as examining or investigatory power, is one of the determinative powers of an administrative body which better enables it to exercise its quasi-judicial authority (Cruz, Phil. Administrative Law, 1996 ed., p. 26). This power allows the administrative body to inspect the records and premises, and investigate the activities, of persons or entities coming under its jurisdiction (Ibid., p. 27), or to require disclosure of information by means of accounts, records, reports, testimony of witnesses, production of documents, or otherwise (De Leon, op. cit., p. 64). The power of investigation consists in gathering, organizing, and analyzing evidence, which is a useful aid or tool in an administrative agency's performance of its rule-making or quasi-judicial functions. Notably, investigation is indispensable to prosecution. In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on the functions of an investigatory body with the sole power of investigation. It does not exercise judicial functions and its power is limited to investigating the facts and making findings in respect thereto. The Court laid down the test of determining whether an administrative body is exercising judicial functions or merely investigatory functions: Adjudication signifies the exercise of power and authority to adjudicate upon the rights and obligations of the parties before it. Hence, if the only purpose for investigation is to evaluate evidence submitted before it based on the facts and circumstances presented to it, and if the agency is not authorized to make a final pronouncement affecting the parties, then there is an absence of judicial discretion and judgment.
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The above description in Ruperto applies to an administrative body authorized to evaluate extradition documents. The body has no power to adjudicate in regard to the rights and obligations of both the Requesting State and the prospective extraditee. Its only power is to determine whether the papers comply with the requirements of the law and the treaty and, therefore, sufficient to be the basis of an extradition petition. Such finding is thus merely initial and not final. The body has no power to determine whether or not the extradition should be effected. That is the role of the court. The body's power is limited to an initial finding of whether or not the extradition petition can be filed in court. It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is characterized by certain peculiarities. Primarily, it sets into motion the wheels of the extradition process. Ultimately, it may result in the deprivation of liberty of the prospective extraditee. This deprivation can be effected at two stages: First, the provisional arrest of the prospective extraditee pending the submission of the request. This is so because the Treaty provides that in case of urgency, a contracting party may request the provisional arrest of the person sought pending presentation of the request (Paragraph [1], Article 9, RP-US Extradition Treaty), but he shall be automatically discharged after 60 days if no request is submitted (Paragraph 4). Presidential Decree No. 1069 provides for a shorter period of 20 days after which the arrested person could be discharged (Section 20[d]). Logically, although the Extradition Law is silent on this respect, the provisions only mean that once a request is forwarded to the Requested State, the prospective extraditee may be continuously detained, or if not, subsequently rearrested (Paragraph [5], Article 9, RP-US Extradition Treaty), for he will only be discharged if no request is submitted. Practically, the purpose of this detention is to prevent his possible flight 146

from the Requested State. Second, the temporary arrest of the prospective extraditee during the pendency of the extradition petition in court (Section 6, Presidential Decree No. 1069). Clearly, there is an impending threat to a prospective extraditee's liberty as early as during the evaluation stage. It is not only an imagined threat to his liberty, but a very imminent one. Because of these possible consequences, we conclude that the evaluation process is akin to an administrative agency conducting an investigative proceeding, the consequences of which are essentially criminal since such technical assessment sets off or commences the procedure for, and ultimately, the deprivation of liberty of a prospective extraditee. As described by petitioner himself, this is a "tool" for criminal law enforcement (p. 78, Rollo). In essence, therefore, the evaluation process partakes of the nature of a criminal investigation. In a number of cases, we had occasion to make available to a respondent in an administrative case or investigation certain constitutional rights that are ordinarily available only in criminal prosecutions. Further, as pointed out by Mr. Justice Mendoza during the oral arguments, there are rights formerly available only at the trial stage that had been advanced to an earlier stage in the proceedings, such as the right to counsel and the right against self-incrimination (tsn, August 31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S. 478; Gideon vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436). In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against selfincrimination under Section 17, Article III of the 1987 Constitution which is ordinarily available only in criminal prosecutions, extends to administrative proceedings which possess a criminal or penal aspect, such as an administrative investigation of a licensed physician who is charged with immorality, which could result in his loss of the privilege to practice medicine if found guilty. The Court, citing the earlier case of Cabal vs. Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of one's license as a medical practitioner, is an even greater deprivation than forfeiture of property.

Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a respondent

which was filed under Republic Act No. 1379, or the Anti-Graft Law. Again, we therein ruled that since the investigation may result in forfeiture of property, the administrative proceedings are deemed criminal or penal, and such forfeiture partakes the nature of a penalty. There is also the earlier case of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where the Court, citing American jurisprudence, laid down the test to determine whether a proceeding is civil or criminal: If the proceeding is under a statute such that if an indictment is presented the forfeiture can be included in the criminal case, such proceeding is criminal in nature, although it may be civil in form; and where it must be gathered from the statute that the action is meant to be criminal in its nature, it cannot be considered as civil. If, however, the proceeding does not involve the conviction of the wrongdoer for the offense charged, the proceeding is civil in nature. The cases mentioned above refer to an impending threat of deprivation of one's property or property right. No less is this true, but even more so in the case before us, involving as it does the possible deprivation of liberty, which, based on the hierarchy of constitutionally protected rights, is placed second only to life itself and enjoys precedence over property, for while forfeited property can be returned or replaced, the time spent in incarceration is irretrievable and beyond recompense. By comparison, a favorable action in an extradition request exposes a person to eventual extradition to a foreign country, thus saliently exhibiting the criminal or penal aspect of the process. In this sense, the evaluation procedure is akin to a preliminary investigation since both procedures may have the same result the arrest and imprisonment of the respondent or the person charged. Similar to the evaluation stage of extradition proceedings, a preliminary investigation, which may result in the filing of an information against the respondent, can possibly lead to his arrest, and to the deprivation of his liberty.

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Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, Petitioner's Memorandum) that the extradition treaty is neither a piece of criminal legislation nor a criminal procedural statute is not welltaken. Wright is not authority for petitioner's conclusion that his preliminary processing is not akin to a preliminary investigation. The characterization of a treaty in Wright was in reference to the applicability of the prohibition against an ex post facto law. It had nothing to do with the denial of the right to notice, information, and hearing. As early as 1884, the United States Supreme Court ruled that "any legal proceeding enforced by public authority, whether sanctioned by age or custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law" (Hurtado vs. California, 110 U.S. 516). Compliance with due process requirements cannot be deemed non-compliance with treaty commitments. The United States and the Philippines share a mutual concern about the suppression and punishment of crime in their respective jurisdictions. At the same time, both States accord common due process protection to their respective citizens. The due process clauses in the American and Philippine Constitutions are not only worded in exactly identical language and terminology, but more importantly, they are alike in what their respective Supreme Courts have expounded as the spirit with which the provisions are informed and impressed, the elasticity in their interpretation, their dynamic and resilient character which make them capable of meeting every modern problem, and their having been designed from earliest time to the present to meet the exigencies of an undefined and expanding future. The requirements of due process are interpreted in both the United States and the Philippines as not denying to the law the capacity for progress and improvement. Toward this effect and in order to avoid the confines of a legal straitjacket, the courts instead prefer to have the meaning of the due process clause "gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78). Capsulized, it refers to "the embodiment of the sporting idea of fair play" (Ermita-Malate Hotel and Motel Owner's Association vs. City Mayor of Manila, 20 SCRA 849 [1967]). It relates to certain immutable principles of justice which inhere in the very idea of free government (Holden vs. Hardy, 169 U.S. 366). Due process is comprised of two components substantive due process which requires the intrinsic validity of the law in interfering with the rights of the person to his life, liberty, or property, and procedural due process which consists of the two basic rights of notice and hearing, as well as the guarantee of being heard by an impartial and competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106). True to the mandate of the due process clause, the basic rights of notice and hearing pervade not only in criminal and civil proceedings, but in administrative proceedings as well. Non-observance of these rights will invalidate the proceedings. Individuals are entitled to be notified of any pending case affecting their interests, and upon notice, they may claim the right to appear therein and present their side and to refute the position of the opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p. 64).

In a preliminary investigation which is an administrative investigatory proceeding, Section 3, Rule 112 of the Rules of Court guarantees the respondent's basic due process rights, granting him the right to be furnished a copy of the complaint, the affidavits, and other supporting documents, and the right to submit counteraffidavits and other supporting documents within ten days from receipt thereof. Moreover, the respondent shall have the right to examine all other evidence submitted by the complainant. These twin rights may, however, be considered dispensable in certain instances, such as: 148

1.In proceedings where there is an urgent need for immediate action, like the summary abatement of a nuisance per se (Article 704, Civil Code), the preventive suspension of a public servant facing administrative charges (Section 63, Local Government Code, B.P. Blg. 337), the padlocking of filthy restaurants or theaters showing obscene movies or like establishments which are immediate threats to public health and decency, and the cancellation of a passport of a person sought for criminal prosecution;
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2.Where there is tentativeness of administrative action, that is, where the respondent is not precluded from enjoying the right to notice and hearing at a later time without prejudice to the person affected, such as the summary distraint and levy of the property of a delinquent taxpayer, and the replacement of a temporary appointee; and 3.Where the twin rights have previously been offered but the right to exercise them had not been claimed. Applying the above principles to the case at bar, the query may be asked: Does the evaluation stage of the extradition proceedings fall under any of the described situations mentioned above? Let us take a brief look at the nature of American extradition proceedings which are quite noteworthy considering that the subject treaty involves the U.S. Government. American jurisprudence distinguishes between interstate rendition or extradition which is based on the Extradition Clause in the U.S. Constitution (Art. IV, 2 cl 2), and international extradition proceedings. In interstate rendition or extradition, the governor of the asylum state has the duty to deliver the fugitive to the demanding state. The Extradition Clause and the implementing statute are given a liberal construction to carry out their manifest purpose, which is to effect the return as swiftly as possible of persons for trial to the state in which they have been charged with crime (31A Am Jur 2d 754-755). In order to achieve extradition of an alleged fugitive, the requisition papers or the demand must be in proper form, and all the elements or jurisdictional facts essential to the extradition must appear on the face of the papers, such as the allegation that the person demanded was in the demanding state at the time the offense charged was committed, and that the person demanded is charged with the commission of the crime or that prosecution has been begun in the demanding state before some court or magistrate (35 C.J.S. 406-407). The extradition documents are then filed with the governor of the asylum state, and must contain such papers and documents prescribed by statute, which essentially include a copy of the instrument charging the person demanded with a crime, such as an indictment or an affidavit made before a magistrate. Statutory requirements with respect to said charging instrument or papers are mandatory since said papers are necessary in order to confer jurisdiction on the governor of the asylum state to effect the extradition (35 C.J.S. 408-410). A statutory provision requiring

duplicate copies of the indictment, information, affidavit, or judgment of conviction or sentence and other instruments accompanying the demand or requisitions be furnished and delivered to the fugitive or his attorney is directory. However, the right being such a basic one has been held to be a right mandatory on demand (Ibid., p. 410, citing Ex parte Moore, 256 S.W. 2d 103, 158 Tex. Cr. 407 and Ex parte Tucker, Cr.,
324, S.W. 2d 853).

In international proceedings, extradition treaties generally provide for the presentation to the executive authority of the Requested State of a requisition or demand for the return of the alleged offender, and the designation of the particular officer having authority to act in behalf of the demanding nation (31A Am Jur 2d 815). In petitioner's memorandum filed on September 15, 1999, he attached thereto a letter dated September 13, 1999 from the Criminal Division of the U.S. Department of Justice, summarizing the U.S. extradition procedures and principles, which are basically governed by a combination of treaties (with special reference to the RP-US Extradition Treaty), federal statutes, and judicial decisions, to wit: 149

1.All requests for extradition are transmitted through the diplomatic channel. In urgent cases, requests for provisional arrest of an individual may be made directly by the Philippine Department of Justice to the U.S. Department of Justice, and vice-versa. In the event of a provisional arrest, a formal request for extradition is transmitted subsequently through the diplomatic channel. 2.The Department of State forwards the incoming Philippine extradition request to the Department of Justice. Before doing so, the Department of State prepares a declaration confirming that a formal request has been made, that the treaty is in full force and effect, that under Article 17 thereof the parties provide reciprocal legal representation in extradition proceedings, that the offenses are covered as extraditable offenses under Article 2 thereof, and that the documents have been authenticated in accordance with the federal statute that ensures admissibility at any subsequent extradition hearing. 3.A judge or magistrate judge is authorized to issue a warrant for the arrest of the prospective extraditee (18 U.S.C. 3184). Said judge or magistrate is authorized to hold a hearing to consider the evidence offered in support of the extradition request (Ibid.) 4.At the hearing, the court must determine whether the person arrested is extraditable to the foreign country. The court must also determine that (a) it has jurisdiction over the defendant and jurisdiction to conduct the hearing; (b) the defendant is being sought for offenses for which the applicable treaty permits extradition; and (c) there is probable cause to believe that the defendant is the person sought and that he committed the offenses charged (Ibid.) 5.The judge or magistrate judge is vested with jurisdiction to certify extraditability after having received a "complaint made under oath, charging any person found within his jurisdiction" with having committed any of the crimes provided for by the governing treaty in the country requesting extradition (Ibid.) [In this regard, it is noted that a long line of American decisions pronounce that international extradition proceedings partake of the character of a preliminary examination before a committing magistrate, rather than a trial of the guilt or innocence of the alleged fugitive (31A Am Jur 2d 826).] 6.If the court decides that the elements necessary for extradition are present, it incorporates its determinations in factual findings and conclusions of law and certifies the person's extraditability. The court then forwards this certification of extraditability to the Department of State for disposition by the Secretary of State. The ultimate decision whether to surrender an individual rests with the Secretary of State (18 U.S.C. 3186). 7.The subject of an extradition request may not litigate questions concerning the motives of the requesting government in seeking his extradition. However, a person facing extradition may present whatever information he deems relevant to the Secretary of State, who makes the final determination whether to surrender an individual to the foreign government concerned.

From the foregoing, it may be observed that in the United States, extradition begins and ends with one entity the Department of State which has the power to evaluate the request and the extradition documents in the beginning, and, in the person of the Secretary of State, the power to act or not to act on the court's determination of extraditability. In the Philippine setting, it is the Department of Foreign Affairs which should make the initial evaluation of the request, and having satisfied itself on the points earlier mentioned (see pp. 10-12), then forwards the request to the Department of Justice for the preparation and filing of the petition for extradition. Sadly, however, the Department of Foreign Affairs, in the instant case, perfunctorily turned over the request to the Department of Justice which has taken over the task of evaluating the request as well as thereafter, if so warranted, preparing, filing, and prosecuting the petition for extradition. Private respondent asks what prejudice will be caused to the U.S. Government should the person sought to be extradited be given due process rights by the Philippines in the evaluation stage. He emphasizes that petitioner's primary concern is the possible delay in the evaluation process. 150

We agree with private respondent's citation of an American Supreme Court ruling:

The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause, in particular, that they were designed to protect the fragile values of a vulnerable

citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.
(Stanley vs. Illinois, 404 U.S. 645, 656)

The United States, no doubt, shares the same interest as the Philippine Government that no right that of liberty secured not only by the Bills of Rights of the Philippines Constitution but of the United States as well, is sacrificed at the altar of expediency.

(pp. 40-41, Private Respondent's Memorandum.)

In the Philippine context, this Court's ruling is invoked:

One of the basic principles of the democratic system is that where the rights of the individual are concerned, the end does not justify the means. It is not enough that there be a valid objective; it is also necessary that the means employed to pursue it be in keeping with the Constitution. Mere expediency will not excuse constitutional shortcuts. There is no question that not even the strongest moral conviction or the most urgent public need, subject only to a few notable exceptions, will excuse the bypassing of an individual's rights. It is no exaggeration to say that a person invoking a right guaranteed under Article III of the Constitution is a majority of one even as against the rest of the nation who would deny him that right (Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343, 375-376 [1989]).

There can be no dispute over petitioner's argument that extradition is a tool of criminal law enforcement. To be effective, requests for extradition or the surrender of accused or convicted persons must be processed expeditiously. Nevertheless, accelerated or fast-tracked proceedings and adherence to fair procedures are, however, not always incompatible. They do not always clash in discord. Summary does not mean precipitous haste. It does not carry a disregard of the basic principles inherent in "ordered liberty." Is there really an urgent need for immediate action at the evaluation stage? At that point, there is no extraditee yet in the strict sense of the word. Extradition may or may not occur. In interstate extradition, the governor of the asylum state may not, in the absence of mandatory statute, be compelled to act favorably (37 C.J.S. 387) since after a close evaluation of the extradition papers, he may hold that federal and statutory requirements, which are significantly jurisdictional, have not been met (31 Am Jur 2d 819). Similarly, under an extradition treaty, the executive authority of the requested state has the power to deny the behest from the requesting state. Accordingly, if after a careful examination of the extradition documents the Secretary of Foreign Affairs finds that the request fails to meet the requirements of the law and the treaty, he shall not forward the request to the Department of Justice for the filing of the extradition petition since non-compliance with the aforesaid requirements will not vest our government with jurisdiction to effect the extradition.
cdll

In this light, it should be observed that the Department of Justice exerted notable efforts in assuring compliance with the requirements of the law and the treaty since it even informed the U.S. Government of certain problems in the extradition papers (such as those that are in Spanish and without the official English translation, and those that are not properly authenticated). In fact, petitioner even admits that consultation 151

meetings are still supposed to take place between the lawyers in his Department and those from the U.S. Justice Department. With the meticulous nature of the evaluation, which cannot just be completed in an abbreviated period of time due to its intricacies, how then can we say that it is a proceeding that urgently necessitates immediate and prompt action where notice and hearing can be dispensed with? Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. Is private respondent precluded from enjoying the right to notice and hearing at a later time without prejudice to him? Here lies the peculiarity and deviant characteristic of the evaluation procedure. On one hand, there is yet no extraditee, but ironically on the other, it results in an administrative determination which, if adverse to the person involved, may cause his immediate incarceration. The grant of the request shall lead to the filing of the extradition petition in court. The "accused" (as Section 2[c] of Presidential Decree No. 1069 calls him), faces the threat of arrest, not only after the extradition petition is filed in court, but even during the evaluation proceeding itself by virtue of the provisional arrest allowed under the treaty and the implementing law. The prejudice to the "accused" is thus blatant and manifest. Plainly, the notice and hearing requirements of administrative due process cannot be dispensed with and shelved aside. Apart from the due process clause of the Constitution, private respondent likewise invokes Section 7 of Article III which reads:
SECTION 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

The above provision guarantees political rights which are available to citizens of the Philippines, namely: (1) the right to information on matters of public concern, and (2) the corollary right of access to official records and documents. The general right guaranteed by said provision is the right to information on matters of public concern. In its implementation, the right of access to official records is likewise conferred. These cognate or related rights are "subject to limitations as may be provided by law" (Bernas, The 1987 Phil. Constitution A Reviewer-Primer, 1997 ed., p. 104) and rely on the premise that ultimately it is an informed and critical public opinion which alone can protect the values of democratic government (Ibid.). Petitioner argues that the matters covered by private respondent's letter-request dated July 1, 1999 do not fall under the guarantee of the foregoing provision since the matters contained in the documents requested are not of public concern. On the other hand, private respondent argues that the distinction between matters vested with public interest and matters which are of purely private interest only becomes material when a third person, who is not directly affected by the matters requested, invokes the right to information. However, if the person invoking the right is the one directly affected thereby, his right to information becomes absolute. The concept of matters of public concern escapes exact definition. Strictly speaking, every act of a public officer in the conduct of the governmental process is a matter of public concern (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 336). This concept embraces a broad spectrum of subjects which the public may want to know, either because these directly affect their lives or simply because such matters arouse the interest of an ordinary citizen (Legaspi v. Civil Service Commission, 150 SCRA 530 [1987]). Hence, the real party in interest is the people and any citizen has "standing." When the individual himself is involved in official government action because said action has a direct bearing on his life, and may either cause him some kind of deprivation or injury, he actually invokes the basic right to be notified under Section 1 of the Bill of Rights and not exactly the right to information on matters of public 152

concern. As to an accused in a criminal proceeding, he invokes Section 14, particularly the right to be informed of the nature and cause of the accusation against him. The right to information is implemented by the right of access to information within the control of the government (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 337). Such information may be contained in official records, and in documents and papers pertaining to official acts, transactions, or decisions. In the case at bar, the papers requested by private respondent pertain to official government action from the U.S. Government. No official action from our country has yet been taken. Moreover, the papers have some relation to matters of foreign relations with the U.S. Government. Consequently, if a third party invokes this constitutional provision, stating that the extradition papers are matters of public concern since they may result in the extradition of a Filipino, we are afraid that the balance must be tilted, at such particular time, in favor of the interests necessary for the proper functioning of the government. During the evaluation procedure, no official governmental action of our own government has as yet been done; hence the invocation of the right is premature. Later, and in contrast, records of the extradition hearing would already fall under matters of public concern, because our government by then shall have already made an official decision to grant the extradition request. The extradition of a fellow Filipino would be forthcoming. We now pass upon the final issue pertinent to the subject matter of the instant controversy: Would private respondent's entitlement to notice and hearing during the evaluation stage of the proceedings constitute a breach of the legal duties of the Philippine Government under the RP-Extradition Treaty? Assuming the answer is in the affirmative, is there really a conflict between the treaty and the due process clause in the Constitution?
prcd

First and foremost, let us categorically say that this is not the proper time to pass upon the constitutionality of the provisions of the RP-US Extradition Treaty nor the Extradition Law implementing the same. We limit ourselves only to the effect of the grant of the basic rights of notice and hearing to private respondent on foreign relations. The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international law, requires the parties to a treaty to keep their agreement therein in good faith. The observance of our country's legal duties under a treaty is also compelled by Section 2, Article II of the Constitution which provides that "[t]he Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations." Under the doctrine of incorporation, rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere (Salonga & Yap, Public International Law, 1992 ed., p. 12).

The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the constitution or statute of the local state. Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal law was enacted with proper regard for the generally accepted principles of international law in observance of the Incorporation Clause in the above-cited constitutional provision (Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts (Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984 [1961]) for the reason that such courts are organs of municipal law and are accordingly bound by it in all 153

circumstances (Salonga & Yap, op. cit., p. 13). The fact that international law has been made part of the law of the land does not pertain to or imply the primacy of international law over national or municipal law in the municipal sphere. The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. Accordingly, the principle lex posterior derogat priori takes effect a treaty may repeal a statute and a statute may repeal a treaty. In states where the constitution is the highest law of the land, such as the Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict with the constitution (Ibid.). In the case at bar, is there really a conflict between international law and municipal or national law? En contrario, these two components of the law of the land are not pitted against each other. There is no occasion to choose which of the two should be upheld. Instead, we see a void in the provisions of the RP-US Extradition Treaty, as implemented by Presidential Decree No. 1069, as regards the basic due process rights of a prospective extraditee at the evaluation stage of extradition proceedings. From the procedures earlier abstracted, after the filing of the extradition petition and during the judicial determination of the propriety of extradition, the rights of notice and hearing are clearly granted to the prospective extraditee. However, prior thereto, the law is silent as to these rights. Reference to the U.S. extradition procedures also manifests this silence. Petitioner interprets this silence as unavailability of these rights. Consequently, he describes the evaluation procedure as an "ex parte technical assessment" of the sufficiency of the extradition request and the supporting documents. We disagree. In the absence of a law or principle of law, we must apply the rules of fair play. An application of the basic twin due process rights of notice and hearing will not go against the treaty or the implementing law. Neither the Treaty nor the Extradition Law precludes these rights from a prospective extraditee. Similarly, American jurisprudence and procedures on extradition pose no proscription. In fact, in interstate extradition proceedings as explained above, the prospective extraditee may even request for copies of the extradition documents from the governor of the asylum state, and if he does, his right to be supplied the same becomes a demandable right (35 C.J.S. 410). Petitioner contends that the United States requested the Philippine Government to prevent unauthorized disclosure of confidential information. Hence, the secrecy surrounding the action of the Department of Justice Panel of Attorneys. The confidentiality argument is, however, overturned by petitioner's revelation that everything it refuses to make available at this stage would be obtainable during trial. The Department of Justice states that the U.S. District Court concerned has authorized the disclosure of certain grand jury information. If the information is truly confidential, the veil of secrecy cannot be lifted at any stage of the extradition proceedings. Not even during trial. A libertarian approach is thus called for under the premises. One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as American jurisprudence and procedures on extradition, for any prohibition against the conferment of the two basic due process rights of notice and hearing during the evaluation stage of the extradition proceedings. We have to consider similar situations in jurisprudence for an application by analogy. Earlier, we stated that there are similarities between the evaluation process and a preliminary investigation since both procedures may result in the arrest of the respondent or the prospective extraditee. In the evaluation process, a provisional arrest is even allowed by the Treaty and the Extradition Law (Article 9, RP-US 154

Extradition Treaty; Sec. 20, Presidential Decree No. 1069). Following petitioner's theory, because there is no provision of its availability, does this imply that for a period of time, the privilege of the writ of habeas corpus is suspended, despite Section 15, Article III of the Constitution which states that "[t]he privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it"? Petitioner's theory would also infer that bail is not available during the arrest of the prospective extraditee when the extradition petition has already been filed in court since Presidential Decree No. 1069 does not provide therefor, notwithstanding Section 13, Article III of the Constitution which provides that "[a]ll persons, except those charged with offenses punishable byreclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended . . ." Can petitioner validly argue that since these contraventions are by virtue of a treaty and hence affecting foreign relations, the aforestated guarantees in the Bill of Rights could thus be subservient thereto? The basic principles of administrative law instruct us that "the essence of due process in administrative proceedings is an opportunity to explain one's side or an opportunity to seek reconsideration of the actions or ruling complained of (Mirano vs. NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs. NLRC, 276 SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 SCRA 602 [1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]). In essence, procedural due process refers to the method or manner by which the law is enforced (Corona vs. United Harbor Pilots Association of the Phils.,283 SCRA 31 [1997]). This Court will not tolerate the least disregard of constitutional guarantees in the enforcement of a law or treaty. Petitioner's fears that the Requesting State may have valid objections to the Requested State's non-performance of its commitments under the Extradition Treaty are insubstantial and should not be given paramount consideration.
cdll

How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four corners of Presidential Decree No. 1069? Of analogous application are the rulings in Government Service Insurance System vs. Court of Appeals (201 SCRA 661 [1991]) and Go vs. National Police Commission(271 SCRA 447 [1997]) where we ruled that in summary proceedings under Presidential Decree No. 807 (Providing for the Organization of the Civil Service Commission in Accordance with Provisions of the Constitution, Prescribing its Powers and Functions and for Other Purposes), and Presidential Decree No. 971 (Providing Legal Assistance for Members of the Integrated National Police who may be charged for Service-Connected Offenses and Improving the Disciplinary System in the Integrated National Police, Appropriating Funds Therefor and for other purposes), as amended by Presidential Decree No. 1707, although summary dismissals may be effected without the necessity of a formal investigation, the minimum requirements of due process still operate. As held in GSIS vs. Court of Appeals:
. . . [I]t is clear to us that what the opening sentence of Section 40 is saying is that an employee may be removed or dismissed even without formal investigation, in certain instances. It is equally clear to us that an employee must be informed of the charges preferred against him, and that the normal way by which the employee is so informed is by furnishing him with a copy of the charges against him. This is a basic procedural requirement that a statute cannot dispense with and still remain consistent with the constitutional provision on due process. The second minimum requirement is that the employee charged with some misfeasance or malfeasance must have a reasonable opportunity to present his side of the matter, that is to say, his defenses against the charges levelled against him and to present evidence in support of his defenses. . . . (at p. 971)

Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due process rights of the respondent. 155

In the case at bar, private respondent does not only face a clear and present danger of loss of property or employment, but of liberty itself, which may eventually lead to his forcible banishment to a foreign land. The convergence of petitioner's favorable action on the extradition request and the deprivation of private respondent's liberty is easily comprehensible. We have ruled time and again that this Court's equity jurisdiction, which is aptly described as "justice outside legality," may be availed of only in the absence of, and never against, statutory law or judicial pronouncements (Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530 [1997]; David-Chan vs. Court of Appeals, 268 SCRA 677 [1997]). The constitutional issue in the case at bar does not even call for "justice outside legality," since private respondent's due process rights, although not guaranteed by statute or by treaty, are protected by constitutional guarantees. We would not be true to the organic law of the land if we choose strict construction over guarantees against the deprivation of liberty. That would not be in keeping with the principles of democracy on which our Constitution is premised.

Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty and government authority, he must ever hold the oar of freedom in the stronger arm, lest an errant and wayward course be laid.
dctai

WHEREFORE, in view of the foregoing premises, the instant petition is hereby DISMISSED for lack of merit. Petitioner is ordered to furnish private respondent copies of the extradition request and its supporting papers, and to grant him a reasonable period within which to file his comment with supporting evidence. The incidents in Civil Case No. 99-94684 having been rendered moot and academic by this decision, the same is hereby ordered dismissed. SO ORDERED.

Davide, Jr., C.J., joins Mr. Justice Puno in his dissent. Bellosillo, Purisima, Buena and De Leon, Jr., JJ., concur. Puno, J., please see dissent. Vitug, J., see separate opinion. Kapunan and Ynares-Santiago, JJ., see separate concurring opinion. Mendoza, Pardo and Gonzaga-Reyes, JJ., join dissenting opinion of J. Puno and J. Panganiban. Panganiban, J., please see dissenting opinion. Quisumbing, J., with concurring opinion.

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