1

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 108310 September 1, 1994 RUFINO O. ESLAO, in his capacity as President of Pangasinan State University, petitioner, vs. COMMISSION ON AUDIT, respondent. Mehol K. Sadain for petitioner.

FELICIANO, J.:

In this Petition for Certiorari, Rufino O. Eslao in his capacity as President of the Pangasinan State University ("PSU") asks us to set aside Commission on Audit ("COA") Decisions Nos. 1547 (1990) and 2571 (1992) which denied honoraria andper diems claimed under National Compensation Circular No. 53 by certain PSU personnel including petitioner.
On 9 December 1988, PSU entered into a Memorandum of Agreement ("MOA") 1 with the Department of Environment and Natural Resources ("DENR") for the evaluation of eleven (11) government reforestation operations in Pangasinan. 2 The evaluation project was part of the commitment of the Asian Development Bank ("ADB") under the ADB/OECF Forestry Sector Program Loan to the Republic of the Philippines and was one among identical project agreements entered into by the DENR with sixteen (16) other state universities. On 9 December 1988, a notice to proceed 3 with the review and evaluation of the eleven (11) reforestation operations was issued by the DENR to PSU. The latter complied with this notice and did proceed. On 16 January 1989, per advice of the PSU Auditor-in-Charge with respect to the payment of honoraria and per diems of PSU personnel engaged in the review and evaluation project, PSU Vice President for Research and Extension and Assistant Project Director Victorino P. Espero requested the Office of the President, PSU, to have the University's Board of Regents ("BOR") confirm the appointments or designations of involved PSU personnel including the rates of honoraria andper diems corresponding to their specific roles and functions. 4 The BOR approved the MOA on 30 January 1989 5 and on 1 February 1989, PSU issued Voucher No. 8902007 6representing the amount of P70,375.00 for payment of honoraria to PSU personnel engaged in the project. Later, however, the approved honoraria rates were found to be somewhat higher than the rates provided for in the guidelines of National Compensation Circular ("NCC") No. 53. Accordingly, the amounts were adjusted downwards to conform to NCC No. 53. Adjustments were made by deducting amounts from subsequent disbursements of honoraria. By June 1989, NCC No. 53 was being complied with. 7 On 6 July 1989, Bonifacio Icu, COA resident auditor at PSU, alleging that there were excess payments of honoraria, issued a "Notice of Disallowance" 8 disallowing P64,925.00 from the amount of P70,375.00 stated in Voucher No. 8902007, mentioned earlier. The resident auditor based his action on the premise that Compensation Policy Guidelines ("CPG") No. 80-4, dated 7 August 1980, issued by the Department of Budget and Management which provided for lower rates than NCC No. 53 dated 21 June 1988, also issued by the Department of Budget and Management, was the schedule for honoraria and per diems applicable to work done under the MOA of 9 December 1988 between the PSU and the DENR.

2
On 18 October 1989, a letter 9 was sent by PSU Vice President and Assistant Project Director Espero to the Chairman of the COA requesting reconsideration of the action of its resident auditor. In the meantime, the Department of Budget and Management ("DBM"), upon request by PSU, issued a letter 10 clarifying that the basis for the project's honoraria shouldnot be CPG No. 80-4 which pertains to locally funded projects but rather NCC No. 53 which pertains to foreign-assisted projects. A copy of this clarification was sent to the COA upon request by PSU. On 18 September 1990, COA Decision No. 1547 11 was issued denying reconsideration of the decision of its resident auditor. The COA ruled that CPG. No. 80-4 is the applicable guideline in respect of the honoraria as CPG No. 80-4 does not distinguish between projects locally funded and projects funded or assisted with monies of foreign-origin. PSU President Eslao sent a letter 12 dated 20 March 1991 requesting reconsideration of COA Decision No. 1547 (1990) alleging that (a) COA had erred in applying CPG No. 80-4 and not NCC No. 53 as the project was foreign-assisted and (b) the decision was discriminatory honoraria based on NCC No. 53 having been approved and granted by COA resident auditors in two (2) other state universities engaged in the same reforestation project. PSU then submitted to the COA (a) a certification 13 from the DENR to the effect that the DENR evaluation project was foreign- assisted and (b) the letter of the DBM quoted in the margin supra. On 16 November 1992, COA Decision No. 2571 (1992)
14

was issued denying reconsideration.

In the meantime, in December 1990, the DENR informed petitioner of its acceptance of the PSU final reports on the review and evaluation of the government reforestation projects. 15 Subsequently, honoraria for the period from January 1989 to January 1990 were disbursed in accordance with NCC No. 53. A Certificate of Settlement and Balances (CSB No. 92-0005-184 [DENR]) 16 was then issued by the COA resident auditor of PSU showing disallowance of alleged excess payment of honoraria which petitioner was being required to return.

The instant Petition prays that (a) COA Decision Nos. 1547 (1990) and 2571 (1992) be set aside; (b) the COA be ordered to pass in audit the grant of honoraria for the entire duration of the project based on the provisions and rates contained in NCC No. 53; and (c) the COA be held liable for actual damages as well as petitioner's legal expenses and attorney's fees. The resolution of the dispute lies in the determination of the circular or set of provisions applicable in respect of thehonoraria to be paid to PSU personnel who took part in the evaluation project, i.e., NCC No. 53 or CPG No. 80-4. In asserting that NCC No. 53 supplies the applicable guideline and that the COA erred in applying CPG No. 80-4 as the pertinent standard, petitioner contends that: (a) CPG No. 80-4 applies to "special projects" the definition and scope of which do not embrace the evaluation project undertaken by petitioner for the DENR; (b) NCC No. 53 applies to foreign-assisted projects ("FAPs") while CPG No. 80-4 applies to locally-funded projects as no reference to any foreign component characterizing the projects under its coverage is made; (c) the DENR evaluation project is a foreign-assisted project per certification and clarification of the DENR and DBM respectively as well as the implied admission of the COA in its Comment; and (d) the DBM's position on the matter should be respected since the DBM is vested with authority to (i) classify positions and determine appropriate salaries for specific position classes, (ii) review the compensation benefits programs of agencies and (iii) design job evaluation programs.
The Office of the Solicitor General, in lieu of a Comment on the Petition, filed a Manifestation 17 stating that (a) since, per certification of the DENR and Letter/Opinion of the DBM that the project undertaken by PSU is foreign-assisted, NCC No. 53 should apply; and (b) respondent COA's contention that CPG No. 80-4 does not distinguish between projects which are foreignfunded from locally-funded projects deserves no merit, since NCC No. 53, a special guideline, must be construed as an exception to CPG No. 80-4, a general guideline. The Solicitor General, in other words, agreed with the position of petitioner.

Upon the other hand, respondent COA filed its own comment, asserting that:

3
(a) while the DBM is vested with the authority to issue rules and regulations pertaining to compensation, this authority is regulated by Sec. 2 (2) of Art. IX-D of the 1987 Constitution which vests respondent COA with the power to "promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant or unconscionable expenditures, or uses of government funds and properties; (b) the Organizational Arrangement and Obligations of the Parties sections of the MOA clearly show that the evaluation project is an "inter-agency activity" between the DENR and PSU and therefore a "special project"; (c) the issue as to whether the evaluation project is in fact a "special project" has become moot in view of the DBM's clarification/ruling that the evaluation project is foreign-assisted and therefore NCC No. 53, not CPG No. 80-4 which applies only to locally-funded projects, should apply; (d) the DBM issuance notwithstanding, respondent COA applied CPG No. 80-4 to effectively rationalize the rates of additional compensation assigned to or detailed in "special projects" as its application is without distinction as to the source of funding and any payment therefore in excess of that provided by CPG No. 80-4 is unnecessary, excessive and disadvantageous to the government; (e) respondent COA's previous allowance of payment of honoraria based on NCC No. 53 or the fact that a full five years had already elapsed since NCC No. 53's issuance does not preclude COA from assailing the circular's validity as "it is the responsibility of any public official to rectify every error he encounters in the performance of his function" and "he is not duty- bound to pursue the same mistake for the simple reason that such mistake had been continuously committed in the past"; (f) the DBM ruling classifying the evaluation project as foreign-assisted does not rest on solid ground since loan proceeds, regardless of source, eventually become public funds for which the government is accountable, hence, any project under the loan agreement is to be considered locally-funded; (g) the DBM ruling constitutes an unreasonable classification, highly discriminatory and violative of the equal protection clause of the Constitution; and (h) granting arguendo NCC No. 53 is the applicable criterion, petitioner received honoraria in excess of what was provided in the MOA. We consider the Petition meritorious. Sec. 2.1 of CPG No. 80-4 defines "special project" as an inter-agency or inter-committee activity or an undertaking by a composite group of officials/employees from various agencies which [activity or undertaking] is not among the regular and primary functions of the agencies involved. (Emphasis and brackets supplied) Respondent COA maintains that the sections of the MOA detailing the "Organizational Arrangement and Obligations of the Parties" clearly show that the evaluation project is an "inter-agency activity." The pertinent sections of the MOA are as follows: ORGANIZATIONAL ARRANGEMENTS A Coordinating Committee shall be created which shall be responsible for the overall administration and coordination of the evaluation, to be chaired by a senior officer of the DENR. The Committee shall [be] composed [of] the following: Chairman : Undersecretary for Planning, Policy and Project Management [DENR]

4
Co-Chairman : Vice-President for Research and Development [PSU] Members : Director of FMB Dean, PSU Infanta Campus Associate Dean, PSU Infanta Campus Chief, Reforestation Division Project Director of the ADB Program Loan for Forestry Sector OBLIGATIONS OF THE PARTIES Obligations of DENR: The DENR shall have the following obligations: 1. Provide the funds necessary for the review and reevaluation of eleven (11) reforestation projects. xxx xxx xxx 2. Undertake the monitoring of the study to ascertain its progress and the proper utilization of funds in conformity with the agreed work and financial plan. 3. Reserve the right to accept or reject the final report and in the latter case, DENR may request PSU to make some revisions/modifications on the same. Obligations of the PSU: The PSU shall have the following obligations: 1. Undertake the review and evaluation of the eleven (11) DENR-funded reforestation projects in accordance with the attached TOR; 2. Submit regularly to DENR financial status reports apart from the progress report required to effect the second release of funds; 3. Submit the final report to DENR fifteen (15) days after the completion of the work. The report should at least contain the information which appears in Annex D; 4. Return to DENR whatever balance is left of the funds after the completion of work. Simply stated, respondent COA argues that since the Coordinating Committee is composed of personnel from the DENR and PSU, the evaluation project is an "inter-agency activity" within the purview of the definition of a "special project". We are unable to agree with respondent COA.
Examination of the definition in CPG No. 80-4 of a "special project" reveals that definition has two (2) components: firstly, there should be an inter-agency or inter-committee activity or undertaking by a group of officials or employees who are drawn from various agencies; and secondly, the activity or undertaking involved is not part of the "regular or primary" functions of the participating agencies. Examination of the MOA and its annexes reveals that two (2) groups were actually created. The first

5
group consisted of the coordinating committee, the membership of which was drawn from officials of the DENR and of the PSU; and the second, the evaluation project team itself which was, in contrast, composed exclusively of PSU personnel. 18 We believe that the first component of the CPU No. 80-4's definition of "special project" is applicable in respect of the group which is charged with the actual carrying out of the project itself, rather than to the body or group which coordinates the task of the operating or implementing group. To construe the administrative definition of "special project" otherwise would create a situation, which we deem to be impractical and possibly even absurd, under which any undertaking entered into between the senior officials of government agencies would have to be considered an "inter-agency or inter-committee activity," even though the actual undertaking or operation would be carried out not by the coordinating body but rather by an separate group which might not (as in the present case) be drawn from the agencies represented in the coordinating group. In other words, an "interagency or inter-committee activity or . . . undertaking" must be one which is actually carried out by a composite group of officials and employees from the two (2) or more participating agencies.

As already noted, in the case at hand, the project team actually tasked with carrying out the evaluation of the DENR reforestation activity is composed exclusively of personnel from PSU; the project team's responsibility and undertaking are quite distinct from the responsibilities of the coordinating [DENR and PSU] committee. Thus, the project team is not a "composite group" as required by the definition of CPG No. 80-4 of "special projects." It follows that the evaluation projects here involved do not fall within the ambit of a "special project" as defined and regulated by CPG No. 80-4. We do not consider it necessary to rule on whether the project at hand involved an undertaking "which is not among the regular and primary functions of the agencies involved" since the reforestation activity evaluation group is not, as pointed out above, a "special project" within the meaning of CPG No. 80-4. In any case, this particular issue was not raised by any of the parties here involved. It is true, as respondent COA points out, that the provisions of CPG No. 80-4 do not distinguish between "a special project" which is funded by monies of local or Philippine origin and "a special project" which is funded or assisted by monies originating from international or foreign agencies. As earlier noted, CPG No. 80-4 was issued by the Department of Budget and Management back in 7 August 1980. Upon the other hand, NCC No. 53 was issued also by the Department of Budget and Management more than eight (8) years later, i.e., 9 December 1988. Examination of the provisions of NCC No. 53 makes it crystal clear that the circular is applicable to foreign-assisted projects only. The explicit text of NCC No. 53 states that it was issued to
prescribe/authorize the classification and compensation rates of positions in foreign-assisted projects (FAPs) including honoraria rates for personnel detailed to FAPs and guidelines in the implementation thereof pursuant to Memorandum No. 173 dated 16 May 1988 19 (Emphasis supplied)

and which apply to all positions in foreign-assisted projects only. Clearly, NCC No. 53 amended the earlier CPG No. 80-4 by carving out from the subject matter originally covered by CPG No. 80-4 all "foreign-assisted [special] projects." CPG No. 80-4 was, accordingly, modified so far as "foreign-assisted [special] projects (FAPs)" are concerned. It is this fact or consequence of NCC No. 53 that respondent COA apparently failed to grasp. Thus, CPG No. 80-4 does not control, nor even relate to, the DENR evaluation project for at least two (2) reasons: firstly, the evaluation project was not a "special project" within the meaning of CPG No. 80-4; secondly, that same evaluation project was a Foreign-Assisted Project to which NCC No. 53 is specifically applicable. That the instant evaluation project is a Foreign-Assisted Project is borne out by the records: (a) the MOA states that the project is "part of the commitment with the Asian Development Bank (ADB) under the Forestry Sector Program Loan"; (b) the certification issued by the DENR certifies that . . . the review and evaluation of DENR reforestation projects undertaken by State Universities and Colleges, one of which is Pangasinan State University, is one of the components of the ADB/OECF Forestry Sector Program Loan which is funded by the loan. It is therefore a foreign-assisted project (Underscoring supplied); and (c) the clarification issued by the DBM stating that

6
The honoraria rates of the detailed personnel should not be based on Compensation Policy Guidelines No. 80-4, which pertains to locally funded projects. Since the funding source for this activity come from loan proceeds, National Compensation Circular No. 53 should apply. Even in its Comment respondent COA submits that
. . . the issue as to whether or not the project was special already became moot in the face of the opinion/ruling of the DBM that since it (the project) is "foreign-assisted" NCC 53 should apply, for CPG No. 80-4 applies only to "locally-funded projects. 20 Under the Administration Code of 1987, the Compensation and Position Classification Bureau of the DBM "shall classify positions and determine appropriate salaries for specific position classes and review appropriate salaries for specific position classes and review the compensation benefits programs of agencies and shall design job evaluation programs." 21 In Warren Manufacturing Workers Union (WMWU) v. Bureau of Labor Relations , 22 the Court held that "administrative regulations and policies enacted by administrative bodies to interpret the law have the force of law and are entitled to great respect." It is difficult for the Court to understand why, despite these certifications, respondent COA took such a rigid and uncompromising posture that CPG No. 80-4 was the applicable criterion for honoraria to be given members of the reforestation evaluation project team of the PSU. Respondent COA's contention that the DBM clarification is unconstitutional as that ruling does not fulfill the requisites of a valid classification 23 is, in the Court's perception, imaginative but nonetheless an after-thought and a futile attempt to justify its action. As correctly pointed out by petitioner, the constitutional arguments raised by respondent COA here were never even mentioned, much less discussed, in COA Decisions Nos. 1547 (1990) and 2571 (1992) or in any of the proceedings conducted before it.

Petitioner also argues that the project's duration stipulated in the MOA was implicitly extended by the parties. The DENR's acceptance, without any comment or objection, of PSU's (a) letter explaining the delay in its submission of the final project report and (b) the final project report itself brought about, according to petitioner, an implied agreement between the parties to extend the project duration. It is also contended that by the very nature of an evaluation project, the project's duration is difficult to fix and as in the case at bar, the period fixed in the MOA is merely an initial estimate subject to extension. Lastly, petitioner argues that whether the project was impliedly extended is an inconsequential consideration; the material consideration being that the project stayed within its budget. The project having been extended, petitioner concludes that the evaluation team should be paid honoraria from the time it proceeded with the project and up to the time the DENR accepted its final report. Mindful of the detailed provisions of the MOA and Project Proposal governing project duration and project financing as regulated by NCC No. 53, the Court is not persuaded that petitioner can so casually assume implicit consent on the part of the DENR to an extension of the evaluation project's duration. The "Duration of Work" clause of the MOA provides that PSU shall commence the work 10 days from receipt of the Notice to Proceed and shall be completed five months thereafter. (Emphasis supplied) On 9 December 1988, the DENR advised PSU President Rufino Eslao that PSU "may now proceed with the review and reevaluation as stipulated" in the MOA. The Notice to Proceed further stated that Your institution is required to complete the work within five months starting ten (10) days upon receipt of this notice. (Emphasis supplied) In respect of the financial aspects of the project, the MOA provides that The DENR shall have the following obligations: 1. Provide the funds necessary for the review and reevaluation of the eleven (11) reforestation projects . . . in the amount not more than FIVE HUNDRED SIX THOUSAND TWO HUNDRED TWENTY FOUR PESOS (P506,224.00) which shall

7
be spent in accordance with the work and financial plan which attached as Annex C. Fund remittances shall be made on a staggered basis with the following schedule: a. FIRST RELEASE Twenty percent (20%) of the total cost to be remitted within fifteen (15) working days upon submission of work plan; b. SECOND RELEASE Forty percent of the total cost upon submission of a progress report of the activities that were so far undertaken; c. THIRD RELEASE Thirty percent (30%) of the total amount upon submission of the draft final report; d. FOURTH RELEASE Ten percent of the total amount [upon submission] of the final report. (Underscoring supplied) Annex "C" referred to in the MOA is the Project Proposal. Per the Proposal's "Budget Estimate," P175,000.00 and P92,500.00 were allotted for "Expert Services" and "Support Services" respectively itemized as follows: PERSONAL SERVICES EXPERT SERVICES Duration Expert of Service Rate/ Total (mo.) mo. 1. Ecologist 4 P5,000 P20,000 2. Silviculturist 3 -do- 15,000 3. Forestry Economist 4 -do- 20,000 4. Soils Expert 2 -do- 10,000 5. Social Forestry Expert 4 -do- 20,000 6. Management Expert 2 -do- 10,000 7. Horticulturist 2 -do- 10,000 8. Agricultural Engineer 2 -do- 10,000 9. Systems Analysts/Programer 2 -do- 10,000 10. Statistician 2 -do- 10,000 11. Shoreline Resources Expert 2 -do- 10,000

8
12. Animal Science Specialist 2 -do- 10,000 13. Policy/Administrative 4 -do- 20,000 Expert T O T A L P175,000

Support Services Research Associates (2) P8,000 Honorarium P1,000/mo. for 4 months Special Disbursing Officer (1) 4,000 Honorarium P1,000/mo. for 4 months Enumerators/Data Gatheres 36,000 360 mandays at P100/manday including COLA Coders/Encoders 30,000 300 mandays at P100/manday including COLA Cartographer/Illustrator 5,000 50 mandays at P100/manday including COLA Documentalist 4,500 45 mandays at P100/manday including COLA Typist 5,000 50 mandays at P100/manday including COLA T O T A L P92,500 In addition, the Proposal already provided a list of identified experts: EXPERTS
1. Dr. Victorino P. Espero Enviromental Science 2. Dean Antonio Q. Repollo Silviculture 3. Prof. Artemio M. Rebugio Forestry Economics 4. Ms. Naomenida Olermo Soils 5. Dr. Elvira R. Castillo Social Forestry 6. Dr. Alfredo F. Aquino Management 7. Dr. Lydio Calonge Horticulture 8. Engr. Manolito Bernabe Engineering 9. Dr. Elmer C. Vingua Animal Science 10. Prof. Rolando J. Andico Systems Analysts Programming 11. Dr. Eusebio Miclat, Jr. Statistics/ Instrumentation 12. Dr. Porferio Basilio Shoreline Resources 13. Dr. Rufino O. Eslao Policy Administration

9
who, together with six (6) staff members namely Henedina M. Tantoco, Alicia Angelo Yolanda Z. Sotelo, Gregoria Q. Calela, Nora A. Caburnay and Marlene S. Bernebe composed the evaluation project team. At this point, it should be pointed out that the " Budget Estimate even provides a duration for the participation of each and every person whether rendering expert or support services.

On the other hand, NCC No. 53 provides: 3.3.1 The approved 0rganization and staffing shall be valid up to project completion except for modifications deemed necessary by the Project Manager. The Project Manager shall be given the flexibility to determine the timing of hiring personnel provided the approved man-years for a given position for the duration of the project is not exceeded. xxx xxx xxx 3.6 A regular employee who may detailed to any FAPs on a part-time basis shall be entitled to receivehonoraria in accordance with the schedule shown in Attachment II hereof. xxx xxx xxx 3.7 Payment of honoraria shall be made out of project funds and in no case shall payment thereof be made out of regular agency fund. xxx xxx xxx 3.10 The total amount of compensation to be paid shall not exceed the original amount allocated for personal services of the individual foreign-assisted projects. Any disbursement in excess of the original amount allotted for personal services of the individual projects shall be the personal liability and responsibility of the officials and employees authorizing or making such payment. (Underscoring supplied) Attachment II of NCC No. 53 prescribes the monthly rates allowed for officials/employees on assignment to foreignassisted special projects: A. Position Level Project Manager/Project Director Responsibility . . . Parttime P2,000.00 B. Position Level Assistant Project Director Responsibility . . . Parttime P1,500.00 C. Position Level Project Consultant Responsibility . . . Parttime P1,000.00

10
D. Position Level Supervisor/Senior Staff Member Responsibility . . . Parttime P1,000.00 E. Position Level Staff Member Responsibility . . . Parttime P700.00 Administrative and Clerical Support A. Position Level Administrative Assistant Responsibility . . . Parttime P500.00 B. Position Level Administrative Support Staff Responsibility . . . Parttime P400.00
From the clear and detailed provisions of the MOA and Project Proposal in relation to NCC No. 53, consent to any extension of the evaluation project, in this instance, must be more concrete than the alleged silence or lack of protest on the part of the DENR. Although tacit acceptance is recognized in our jurisdiction, 24 as a rule, silence is not equivalent to consent since its ambiguity lends itself to error. And although under the Civil Code there are instances when silence amounts to consent, 25 these circumstances are wanting in the case at bar. Furthermore, as correctly pointed out by the respondent COA, the date when the DENR accepted the final project report is by no means conclusive as to the terminal date of the evaluation project. Examination of the MOA (quoted earlier on pages 19-20) reveals that the submission of reports merely served to trigger the phased releases of funds. There being no explicit agreement between PSU and the DENR to extend the duration of the evaluation project, the MOA's "Budget Estimate" which, among others, provides in detail the duration of service for each member of the evaluation project as amended by the rates provided by NCC No. 53 must be the basis of the honoraria due to the evaluation team.

The other arguments of respondent COA appear to us to be insubstantial and as, essentially, afterthoughts. The COA apparently does not agree with the policy basis of NCC No. 53 in relation to CPG No. 80-4 since COA argues that loan proceeds regardless of source eventually become public funds for which the government is accountable. The result would be that any provisions under any [foreign] loan agreement should be considered locally-funded. We do not consider that the COA is, under its constitutional mandate, authorized to substitute its own judgment for any applicable law or administrative regulation with the wisdom or propriety of which, however, it does not agree, at least not before such law or regulation is set aside by the authorized agency of government i.e., the courts as unconstitutional or illegal and void. The COA, like all other government agencies, must respect the presumption of legality and constitutionality to which statutes and administrative regulations are entitled 26 until such statute or regulation is repealed or amended, or until set aside in an appropriate case by a competent court (and ultimately this Court). Finally, we turn to petitioner's claim for moral damages and reimbursement of legal expenses. We consider that this claim cannot be granted as petitioner has failed to present evidence of bad faith or tortious intent warranting an award thereof. The presumption of regularity in the performance of duty must be accorded to respondent COA; its action should be seen

11
as its effort to exercise (albeit erroneously, in the case at bar) its constitutional power and duty in respect of uses of government funds and properties. WHEREFORE, for all the foregoing, the Petition for Certiorari is hereby GRANTED. COA Decisions Nos. 1547 and 2571, respectively dated 18 September 1990 and 16 November 1992, are hereby SET ASIDE. The instant evaluation project being a Foreign-Assisted Project, the following PSU personnel involved in the project shall be paid according to the Budget Estimate schedule of the MOA as aligned with NCC No. 53: A. A. For Experts Duration Rate/ Expert of month Total Service (NCC (mo.) No. 53) 1. Dr. Rufino O. Eslao Policy/Admi- 4 P2,000 P8,000 nistrative expert*2. Dr. Victorino P. Espero Ecologist** 4 1,500 6,000 3. Dean Antonio Q. Repollo Silvicul- 3 1,000 3,000 turist*** 4. Prof. Artemio M. Rebugio Forestry 4 1,000 4,000 Economist 5. Ms. Naomenida Olermo Soils Expert 2 1,000 2,000 6. Dr. Elvira R. Castillo Social 4 1,000 4,000 Forestry Expert 7. Dr. Alfredo F. Aquino Management 2 1,000 2,000 Expert 8. Dr. Lydio Calonge Horticul 2 1,000 2,000 turist 9. Engr. Manolito Bernabe Agricultural 2 1,000 2,000 Engineer 10. Prof. Rolando J. Andico Systems 2 1,000 2,000 Analysts/ Programmer 11. Dr. Eusebio Miclat, Jr. Statistician 2 1,000 2,000 12. Dr. Porferio Basilio Shoreline 2 1,000 2,000 Resources Expert 13. Dr. Elmer C. Vingua Animal 2 1,000 2,000 Science Specialist 41,000 * Project Manager/ Project Director ** Assistant Project Director *** Project Consultants B. For Support Staff Duration Rate/ Expert of month Total

12
Service (NCC (mo.) No. 53) 1 Henedina M. Tantoco Research 4 700 2,800 Associate** 2 Alicia Angelo Research 4 700 2,800 3 Yolanda Z. Sotelo Documentalist 2.04 700 1,428 4 Gregoria Q. Calela Special 4 700 2,800 Disbursing Officer 5 Nora A. Caburnay Typist 2.27 500 1,135 6 Marlene S. Bernebe Cashier 2.27 500 1,135 12,098 * Per Attachment to DBM Clarification dated 10 November 1989, Rollo, p. 59. ** Staff Member *** Administrative Assistants. No pronouncement as to costs. SO ORDERED. Narvasa, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur. Cruz, Bidin, on leave.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. L-8895 and L-9191 April 30, 1957

SALVADOR A. ARANETA, ETC., ET AL., petitioners, vs. THE HON. MAGNO S. GATMAITAN, ETC., ET AL., respondents. EXEQUIEL SORIANO, ET AL., petitioners-appellees, vs. SALVADOR ARANETA, ETC., ET AL., respondents-appellants. Office of the Solicitor General Ambrosio Padilla, Assistant Solicitor General Jose G. Bautista and Solicitor Troadio T. Quiazon for petitioners. San Juan, Africa and Benedicto for respondents.

13
FELIX, J.: 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, trawl1 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 Mayor, 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 presentations 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 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 plaintiff (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 license to operate fishing boats for the year 1954 (Annex B, petition L-8895); that the executive orders in question were issued 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 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 judgement 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

14
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 judgement 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, 1965, 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 respondents-appellants 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

15
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 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 voted 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 the 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.

16
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 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 judgement 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

17
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 enactment's 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. 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 that 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 Phi., 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., 167, 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 andcertiorari proceedings in G.R. No. L-8895, were enforced, if at all,2 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 No. 22, 26 and 80, especially the first and the last "absolutely prohibiting fishing by means trawls in all the waters comprised within the San Miguel Bay", ruled in favor of 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 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 enactment's 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

18
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 REFUGEES 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 forest 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 forest, 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 stated that:

The trawls ram and destroy the fish corrals. The heavy trawl nets dig deep into the ocean bed. They destroy the fish foods 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 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)

19
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, 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 therefore, amounting to P387,000 (Record on Appeal, p. 16-17). In virtue of the aforementioned provisions of law and the manifestation 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 the 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, obnoxious for it carries away fish eggs and fry's 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 district, 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

Regarding department organization Section 74 of the Revised Administrative Code also provides that:

All executive functions of the government of the Republic of the Philippines shall be directly under the Executive Departments 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 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

20
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 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 and 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 law consists in that the former necessary involves a discretion as to what the law shall be, wile 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 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 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 (See. 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). 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 judgement, 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 the respondent Judge of the Court of First Instance of Manila Branch XIV, from enforcing his order of March 3, 1955; and

21
(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.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. L-40245 April 30, 1975 CIVIL AERONAUTICS BOARD, appellee, vs. PHILIPPINE AIR LINES, INC., appellant. Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Hector C. Fule and Solicitor Patricio M. Patajo for appellee. Siguion Reyna, Montecillo, Belo & Ongsiako and Felipe L. Goson & C.S. Cervantes, Jr. for appellant.

ESGUERRA, J.:

+.wph! 1

This appeal from Resolutions Nos. 109 (70) and 132 (70) of the Civil Aeronautics Board (CAB), imposing a fine of P2,500 upon appellant Philippine Air Lines Inc. (PAL) for making a flagstop at Baguio City on May 12, 1970, in its Flight 213, was originally taken to the Court of Appeals (CA-G.R. No. 45738-R). It was forwarded to this Court by resolution dated February 11, 1975, of the Court of Appeals (First Division) on the ground that only a question of law is involved, the facts being undisputed. Appellant PAL in its manifestation dated February 17, 1975, interposed no objection thereto, stating that notwithstanding that said appeal was properly taken to the Court of Appeals, pursuant to Section 1 of Republic Act 5434 which allows appeal from the Civil Aeronautics Board on pure question of law, "the question of whether or not the Civil Aeronautics Board has authority under the Civil Aeronautics Act to impose penalties" ... "has not yet been decided by the Supreme Court." The, undisputed facts are: .
t.hqw

The Philippine Airlines Inc. is a grantee of a legislative franchise, Public Act No. 4271, as amended by Republic Acts Nos. 2360 and 2667, where under the said airline provides both domestic and international air service. In its domestic service PAL provides, among others, services between Tuguegarao and Manila (designated as Flight 213) and between Baguio and Manila (designated as Flight 205).

22
On May 12, 1970, PAL had an excess of twenty (20) passengers from Baguio to Manila who cannot be accommodated in its regular flight. To accommodate these twenty passengers, PAL required the aircraft operating Flight 213 (Tuguegarao to Manila) to pass Baguio City on its way to Manila and pick up these passengers. Flight 213 at that time was carrying only five (5) passengers. The following are the additional facts established before, and not disputed by, the Civil Aeronautics Board: (a) At the time of the above incident, no other airline served Manila and Baguio. No other airline, therefore, was affected by the aforesaid flagstop. (b) The expenses incurred by the PAL in operating the flagstop at Baguio City far exceeded the revenue that it derived from the twenty passengers that it fetched at Baguio City. The flagstop, therefore, was motivated not by profit but solely by PAL's desire to meet a public need for additional service between Baguio and Manila on that date.. (c) No one, except perhaps the Chairman of the CAB, filed any formal complaint with the C.A.B. Claiming that PAL should have first obtained the permission of the CAB before operating the flagstop and that such failure is a violation of Republic Act No. 776, the CAB imposed a fine of P5,000.00 upon PAL in a resolution, copy of which is attached hereto as Annex "A". Upon motion for reconsideration filed by PAL, the CAB reduced the fine to P2,500.00 (See copy of resolution attached hereto as Annex "B"). The appellee adopted the statement of facts appearing on pages 1 to 3 of appellant's brief as substantially correct and in addition stated "that Public Act No. 4271, as amended, requires the grantee, Philippine Air Lines Inc. to comply with the provisions of Republic Act No. 776 and the regulations promulgated thereunder from time to time". The first questioned resolution (No. 109(70)) reads:
t.hqw

Considering that operation of flag-stops are not authorized and must be operated only with prior approval by the Board and considering further that Philippine Air Line, Inc. has conducted such flagstop for its Flight 212/213 on May 12, 1970 and on previous occasions prior thereto, the board, after conducting hearings thereon and after due deliberations on the explanations of PAL's counsel, resolves, as it is hereby resolved to impose a fine of P5,000.00 against PAL to be paid within ten (10) days from receipt hereof, pursuant to the provisions of Section 42(k) of Republic Act 776." (Emphasis supplied). The Board further resolves to warn PAL that a repetition of the same will be dealt with more severely. Considering, however, that flagstops may have to be undertaken with as short notice as possible, the carriers may notify the technical staff thru the Executive Director of the CAB of their desire to operate such flagstops citing the reasons therefor and the Executive Director may give initial approval thereto, but the same has to be confirmed immediately by the Board at its next regular meeting. The appellant PAL in its motion for reconsideration of the above CAB Resolution No. 109(70), contended that "there is simply nothing in Republic Act No. 776 in general, nor in Section 42(k) thereof in particular, which expressly empowers this Honorable Board (CAB) to impose a fine and order its payment in the manner pursued in this case and under CAB Resolution No. 109(70)". It is argued that "the power and authority to impose fines and penalties is a judicial function exercised through the regular courts of justice, and that such power and authority cannot be delegated to the Civil Aeronautics Board by mere implication or interpretation". In the regular meeting held on July 6, 1970, the CAB adopted resolution No. 132(70), to wit:
t.hqw

After considering the motion of Philippine Air Lines Inc. for the reconsideration of CAB Resolution No. 109(70) the Board resolved to reduce, as it hereby reduces the amount of fine imposed to P2,500 to be paid fifteen (15) days after receipt hereof. The imposition of the fine is not so much on exacting penalty for the violation committed as the need to stress upon air carriers to desist from wanton disregard of existing rules, regulations or requirements of the government regulating agency, if not the additional risk forced upon the passengers who boarded the aircraft without notice to them of

23
such flagstops or the delays encountered as a result thereof. The same will serve also as a warning to all air carriers from operating flagstops without prior authority.(Emphasis supplied) To determine whether the appellee CAB possesses the necessary legal authority to impose a fine as it did in Resolutions Nos. 109(70) and 132(70), the provisions of Republic Act 776 have to be minutely scrutinized. Said law created the Civil Aeronautics Board (CAB) and the Civil Aeronautics Administration so that in the exercise and performance of their powers and duties, they shall consider among other things, "as being in the public interest, and in accordance with the public convenience and necessity" certain declared policies which include
t.hqw

(c) The regulation of air transportation in such manner as to recognize and preserve the inherent advantage of, assure the highest degree of safety in, and foster sound economic condition in, such transportation and to improve the relation between, and coordinate transportation by, air carriers; .... ; (Emphasis supplied) (f) To promote safety of flight in air commerce in the Philippines; ... "(Sec. 4, Republic Act 776). The Civil Aeronautics Board "shall have the general supervision and regulation of, and jurisdiction and control over, air carriers as well as their property, property rights, equipment, facilities, and franchise, in so far as may be necessary for the purpose of carrying out the provisions of this Act." (Sec. 10 Republic Act 776). It has the power "to issue, deny, amend, revise, alter, modify, cancel, suspend or revoke, in whole or in part, upon petition or complaint, or upon its own initiative any temporary operating permit or Certificate of Public Convenience and Necessity" (Sec. 10(c) (1) Republic Act 776). (Emphasis supplied) The CAB has the power to "investigate, upon complaint or upon its own initiative, whether any individual or air carrier, domestic or foreign, is violating any provision of this act, or the rules and regulations issued thereunder, and shall take such action, consistent with the provisions of this Act, as may be necessary to prevent further violation of such provisions, or rules and regulations so issued (Section 10(D) Republic Act 776). (Emphasis supplied) Likewise, the CAB has the power to "review, revise, reverse, modify or affirm on appeal any administrative decision or order" of the Civil Aeronautics Administrator on matters pertaining to "imposition of civil penalty or fine in connection withthe violation of any provision of this Act or rules and regulations issued thereunder." It has the power also "either on its own initiative or upon review on appeal from an order or decision of the Civil Aeronautics Administrator, to determine whether to impose, remit, mitigate, increase, or compromise, such fine and civil penalties, as the case may be." (Sec. 10(F) (G) Republic Act 776). (Emphasis for emphasis). The power to impose fines and/or civil penalties and make compromise in respect thereto is expressly given to the Civil Aeronautics Administrator (Sec. 32(17) Republic Act 776). There is no doubt that the fine imposed on appellant PAL in CAB resolution 109(70) and 132(70) is that fine or civil penalty contemplated and mentioned in the foregoing provisions of Republic Act 776 and not a fine in the nature of criminal penalty as contemplated in the Revised Penal Code, because the "fine" in this case was imposed by the C.A.B. because of appellant PAL's violation of C.A.B. rules on flagstops without previous authority on "May 12, 1970 and on previous occasions", said C.A.B. explaining clearly in its resolution No. 132(70) that the "imposition of the fine is not so much on exacting penalty for the violation committed as the need to stress upon the air carriers to desist from wanton disregard of existing rules, regulations or requirements of the government regulating agency ... " In other words, it is an administrative penalty which administrative officers are empowered to impose without criminal prosecution. Similar power has been granted to the Commissioners of Immigration and Customs for violation of the Immigration law and Tariff and Customs Code, respectively. (Sec. 44 of Commonwealth Act 613, Immigration Act of 1940, as amended by R.A. 118, 135, 144, 503, 749, 827 and 1901; Sec. 2307 of R.A. 1937, Tariff and Customs Code) The same power has been given to the Public Service Commission in its exercise of an effective administrative regulatory supervision and control over public service enterprises. (Section 21, Chapter IV, Commonwealth Act No. 146, as amended) . We have no quarrel with appellant PAL's contention that the C.A.B. has no power to impose fines in the nature of criminal penalty and that only courts of justice can do so. It could easily be discerned from a scrutiny of the provision on Chapter VII of Republic Act 776, on "Violation and penalties" that whenever the law provides a penalty for a violation involving fine and/or imprisonment (criminal in nature), the words "in the discretion of the court" always appear (Sec. 42 (E) (F) (G) (N) Republic Act 776) for the very simple reason that the C.A.B. is not authorized to impose a criminal penalty, but in those cases where the violation is punishable by a fine or civil penalty, the law does not include the words "in the discretion of

24
the court". There exists but an insignificant doubt in Our mind that the C.A.B. is fully authorized by law (Republic Act 776) to impose fines in the nature of civil penalty for violations of its rules and regulations. To deprive the C.A.B. of that power would amount to an absurd interpretation of the pertinent legal provision because the CAB is given full power on its own initiative to determine whether to "impose, remit, mitigate, increase or compromise" "fines and civil penalties", a power which is expressly given to the Civil Aeronautics Administrator whose orders or decision may be reviewed, revised, reversed, modified or affirmed by the C.A.B.. Besides, to deprive the C.A.B. of its power to impose civil penalties would negate its effective general supervision and control over air carriers if they can just disregard with impunity the rules and regulations designed to insure public safety and convenience in air transportation. If everytime the C.A.B. would like to impose a civil penalty on an erring airline for violation of its rules and regulations it would have to resort to courts of justice in protracted litigations then it could not serve its purpose of exercising a competent, efficient and effective supervision and control over air carriers in their vital role of rendering public service by affording safe and convenient air transit. It is appellant's view that the fine imposed by the CAB was not commensurate with the nature and extent of violation done, since according to its argument the Tuguegarao-Manila flight F213 actually served a public need when it made a flagstop at Baguio on May 12, 1970 to pick up 20 passengers who could not be accommodated in the Baguio-Manila flight. Appellant's argument overlooks the fact that when it violated the rule on unauthorized flagstop, it might have done some public service to the 20 Baguio passengers but to the prejudice and inconvenience of the five Tuguegarao-Manila passengers. The appellant was under obligation to bring the five Tuguegarao-Manila passengers directly to Manila and not to make a flagstop in Baguio City to pick up additional passengers, which is not scheduled in that flight. There is no question that for that plane to descend and ascend at the airport in Baguio City resulted in additional risk to its five Tuguegarao- Manila passengers and also to their inconvenience. Besides, it is an established fact that the C.A.B. imposed the civil penalty not only for appellant's violation of May 12, 1970, but also for violation "on previous occasions" and the "need to stress upon the air carriers to desist from wanton disregard of existing rules, regulation or requirements of the government regulating agency". To Our Mind, the rules regulating flight of air carriers must be strictly complied with because they are designed for the passenger's safety and convenience and violations thereof should not be slightly treated since said violations might result in irremediable disaster. The C.A.B. did not commit any mistake in imposing a civil penalty on appellant for its violation of the rule prohibiting unauthorized flagstop to serve "as a warning to all air carriers from operating flag-stops without prior authority". It appears, however, that the PAL committed the violation of the C.A.B. regulation against flagstops without malice and with no deliberate intent to flout the same. For this reason, the penalty imposed by the C.A.B. may be mitigated and reduced to a nominal sum. WHEREFORE, the resolution appealed from is modified by reducing the administrative fine imposed on the appellant PAL to ONE HUNDRED PESOS (P100.00). SO ORDERED. Castro (Chairman), Makasiar, Muoz Palma and Martin, JJ., concur. Teehankee. J., concurs in the result.
1wph1.t

25
Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 84592 October 27, 1988 ESTHER E. CUERDO, petitioner, vs. COMMISSION ON AUDIT, respondent. Esther Cuerdo for and in her own behalf. The Solicitor General for respondent.

SARMIENTO, J.:
Assailed in this petition is a decision 1 of the Commission on Audit (COA for short), dated March 30, 1988, which reads in full:

COA DECISION NO. 444 March 30, 1988 Mrs. Esther E. Cuerdo Market Collector I Office of the City Treasurer Gingoog City Madam: This pertains to your request for reconsideration of the decision of this Commission embodied in an 8th Indorsement, dated December 17, 1986, affirming the adverse action taken by the Director, COA Regional Office No. X, Cagayan de Oro City, denying your request for relief from money accountability for the loss of cash in the amount of P13,888.65 and cash tickets amounting to P2,958.00. A review of the records of this case shows that the grounds on which you predicate your aforesaid request had been considered and passed upon by this Commission when it rendered the subject decision. Accordingly, and there being no new and material evidence which would warrant a reversal or modification of the denying sought to be reconsidered, it is regretted that your instant request has to be, as it is hereby, denied. Very truly yours, EUFEMIO C. DOMINGO Chairman BARTOLOME C. FERNANDEZ, JR. Commissioner On official trip abroad ALBERTO P. CRUZ Commissioner

26
The facts as culled from the record are as follows: Petitioner is the Market Supervisor I of the Market Administration Office, Office of the City Treasurer, Gingoog City.
At precisely 12:45 in the afternoon of August 1, 1986, the Market Administration Office or ticket booth, where the petitioner holds office, together with neighboring market stalls, including the nearby A and E Bakery, were destroyed by fire. Burned in the conflagration were the petitioner's cash collection in the amount of Pl 3,888.65 and the cash tickets amounting to P2,958 .00 2 The petitioner filed a written request for relief from money accountability for the loss of her cash collection amounting to P13,888.65 and the cash tickets amounting to P2,958.00 with the Regional Office, Commission on Audit, Regional Office No. X, Cagayan de Oro City. 3 Acting on her request, the said office conducted an investigation and its finding as embodied in its 7th Indorsement, dated November 5, 1 986, is "to the effect that there is positive showing of negligence on the part of the applicant in not taking necessary precaution or zeal in returning the money in the safe iii order to safeguard it not only from fire but also from theft or robbery ... 4 Upon indorsement to the COA Central Office, its Chairman, the Honorable Teofisto T. Guingona, Jr., affirmed the stand of the COA, Regional Office, which decision was embodied in its 8th indorsement dated December 17, 1986. 5 The petitioner sought a reconsideration of the decision of the COA Central Office 6 which was denied in the assailed letter decision of March 30, 1988. 7

The sole issue to be resolved in this case is whether or not the petitioner should be held liable for the loss of the amounts of P13,888.65 and P2,958.00 representing the petitioner's cash collection and cash tickets, respectively, when the proximate cause of the loss was the burning of her office, which is a fortuitous event.
In disclaiming liability for negligence and in seeking relief from responsibility therefor, the petitioner maintains that the money was not placed in the safe due to the disappearance of the key to the safe. Moreover, she contends that the money was due for remittance at 1:00 o'clock in the afternoon of that fateful day, August 1, 1986. She claims that because the fire broke out at precisely 12:45 that afternoon, she did not have the time to retrieve the money from the drawer of her table which was inside the Market Administration Office. 8 She deposits that the loss was not due to a wilful negligence on her part because the immediate and direct cause of the loss was the unexpected and calamitous event of a sudden fire that consumed the public market. 9 She argues that the alleged disappearance of the key to the safe was not looked into as no hearing was conducted in disregard of the doctrine of due process. 10 In the instant case the sole issue raised being factual, the same is not reviewable by this Court on certiorari. 11 Moreover, it is the general policy of this Court to sustain the decisions of administrative authorities "not only on the basis of the doctrine of separation of powers but also for their presumed knowledgeability and even expertise in the laws they are entrusted to enforce. 12 In Beautifont Inc. and Aura Laboratories, Inc. vs. C.A., et al. 13 we articulated:

xxx xxx xxx ... The legal presumption is that official duty has been duly performed; and it is 'particularly strong as regards administrative agencies ... vested with powers said to be quasi-judicial in nature, in connection with the enforcement of laws affecting particular fields of activity, the proper regulations and/or promotion of which requires a technical or special training, aside from a good knowledge and grasp of the overall conditions, relevant to said field, obtaining in the nation (Pangasinan Transportation vs. Public Utility Commission, 70 Phil. 221). The consequent policy and practice underlying our Administrative Law is that courts of justice should respect the findings of fact of said administrative agencies, unless there is absolutely no evidence in support thereof or such evidence is clearly, manifestly and patently insubstantial (Heacock vs. NLU 95 Phil. 553).'Hence, '(c)ourts of justice will not generally interfere with purely administrative matters which are addressed to the sound discretion of government agencies unless there is a clear showing that the latter acted arbitrarily or with grave abuse of discretion or when they have acted in a capricious and whimsical manner such that their action may amount to an excess or lack of jurisdiction.
And in still another case, we reaffirmed the oft-repeated rule that findings of administrative agencies are generally accorded not only respect but also finality when the decision and order ... are not tainted with unfairness or arbitrariness that would amount to abuse of discretion or lack of jurisdiction. 14 The findings of facts must be respected, so long as they are supported by substantial evidence even if not overwhelming or preponderant. 15

27
On the alleged disregard of the doctrine of due process, suffice it to state that "where a party was given a chance to be heard with respect to his motion for reconsideration there is sufficient compliance with the requirements of due process. 16 And in Benito Resales et al. vs. Court of Appeals, et al., 17 we held that a motion for reconsideration or appeal is curative in character on the issue of alleged denial of due process. Moreover, considering that the petitioner did not raise the issue of the alleged denial of due process before the COA, she should not be allowed to raise such issue before this court, In Aguinaldo Industries Corporation vs. Commissioner of Internal Revenue, 18 we stated:

To allow a litigant to assume a different posture when he comes before the court and challenges the position he had accepted at the administrative level, would be to sanction a procedure whereby the courtwhich is supposed to review administrative determinationswould not review, but determine and decide for the first time, a question not raised at the administrative forum. This cannot be permitted, for the same reason that underlies the requirement of prior exhaustion of administrative remedies to give administrative authorities the prior opportunity to decide controversies within its competence, and in much the same way that, on the judicial level, issues not raised in the lower court cannot be raised for the first time on appeal.
There being no showing that the COA acted whimsically and capriciously and in fact the petitioner in her appeal for reconsideration 19 stated that "I cannot fault you, if, in the exercise of your sworn duty, you should apply the full force of the law on me we find no cogent reason to disturb the findings of that constitutional body.

WHEREFORE, the decision of the Commission on Audit is hereby AFFIRMED and the Petition is hereby DISMISSED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur. Feliciano, J., concurs in the result.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 108310 September 1, 1994 RUFINO O. ESLAO, in his capacity as President of Pangasinan State University, petitioner, vs. COMMISSION ON AUDIT, respondent. Mehol K. Sadain for petitioner.

FELICIANO, J.:

In this Petition for Certiorari, Rufino O. Eslao in his capacity as President of the Pangasinan State University ("PSU") asks us to set aside Commission on Audit ("COA") Decisions Nos. 1547 (1990) and 2571 (1992) which

28
denied honoraria andper diems claimed under National Compensation Circular No. 53 by certain PSU personnel including petitioner.
On 9 December 1988, PSU entered into a Memorandum of Agreement ("MOA") 1 with the Department of Environment and Natural Resources ("DENR") for the evaluation of eleven (11) government reforestation operations in Pangasinan. 2 The evaluation project was part of the commitment of the Asian Development Bank ("ADB") under the ADB/OECF Forestry Sector Program Loan to the Republic of the Philippines and was one among identical project agreements entered into by the DENR with sixteen (16) other state universities. On 9 December 1988, a notice to proceed 3 with the review and evaluation of the eleven (11) reforestation operations was issued by the DENR to PSU. The latter complied with this notice and did proceed. On 16 January 1989, per advice of the PSU Auditor-in-Charge with respect to the payment of honoraria and per diems of PSU personnel engaged in the review and evaluation project, PSU Vice President for Research and Extension and Assistant Project Director Victorino P. Espero requested the Office of the President, PSU, to have the University's Board of Regents ("BOR") confirm the appointments or designations of involved PSU personnel including the rates of honoraria andper diems corresponding to their specific roles and functions. 4 The BOR approved the MOA on 30 January 1989 5 and on 1 February 1989, PSU issued Voucher No. 8902007 6representing the amount of P70,375.00 for payment of honoraria to PSU personnel engaged in the project. Later, however, the approved honoraria rates were found to be somewhat higher than the rates provided for in the guidelines of National Compensation Circular ("NCC") No. 53. Accordingly, the amounts were adjusted downwards to conform to NCC No. 53. Adjustments were made by deducting amounts from subsequent disbursements of honoraria. By June 1989, NCC No. 53 was being complied with. 7 On 6 July 1989, Bonifacio Icu, COA resident auditor at PSU, alleging that there were excess payments of honoraria, issued a "Notice of Disallowance" 8 disallowing P64,925.00 from the amount of P70,375.00 stated in Voucher No. 8902007, mentioned earlier. The resident auditor based his action on the premise that Compensation Policy Guidelines ("CPG") No. 80-4, dated 7 August 1980, issued by the Department of Budget and Management which provided for lower rates than NCC No. 53 dated 21 June 1988, also issued by the Department of Budget and Management, was the schedule for honoraria and per diems applicable to work done under the MOA of 9 December 1988 between the PSU and the DENR. On 18 October 1989, a letter 9 was sent by PSU Vice President and Assistant Project Director Espero to the Chairman of the COA requesting reconsideration of the action of its resident auditor. In the meantime, the Department of Budget and Management ("DBM"), upon request by PSU, issued a letter 10 clarifying that the basis for the project's honoraria shouldnot be CPG No. 80-4 which pertains to locally funded projects but rather NCC No. 53 which pertains to foreign-assisted projects. A copy of this clarification was sent to the COA upon request by PSU. On 18 September 1990, COA Decision No. 1547 11 was issued denying reconsideration of the decision of its resident auditor. The COA ruled that CPG. No. 80-4 is the applicable guideline in respect of the honoraria as CPG No. 80-4 does not distinguish between projects locally funded and projects funded or assisted with monies of foreign-origin. PSU President Eslao sent a letter 12 dated 20 March 1991 requesting reconsideration of COA Decision No. 1547 (1990) alleging that (a) COA had erred in applying CPG No. 80-4 and not NCC No. 53 as the project was foreign-assisted and (b) the decision was discriminatory honoraria based on NCC No. 53 having been approved and granted by COA resident auditors in two (2) other state universities engaged in the same reforestation project. PSU then submitted to the COA (a) a certification 13 from the DENR to the effect that the DENR evaluation project was foreign- assisted and (b) the letter of the DBM quoted in the margin supra. On 16 November 1992, COA Decision No. 2571 (1992)
14

was issued denying reconsideration.

In the meantime, in December 1990, the DENR informed petitioner of its acceptance of the PSU final reports on the review and evaluation of the government reforestation projects. 15 Subsequently, honoraria for the period from January 1989 to January 1990 were disbursed in accordance with NCC No. 53. A Certificate of Settlement and Balances (CSB No. 92-0005-184 [DENR]) 16 was then issued by the COA resident auditor of PSU showing disallowance of alleged excess payment of honoraria which petitioner was being required to return.

29
The instant Petition prays that (a) COA Decision Nos. 1547 (1990) and 2571 (1992) be set aside; (b) the COA be ordered to pass in audit the grant of honoraria for the entire duration of the project based on the provisions and rates contained in NCC No. 53; and (c) the COA be held liable for actual damages as well as petitioner's legal expenses and attorney's fees. The resolution of the dispute lies in the determination of the circular or set of provisions applicable in respect of thehonoraria to be paid to PSU personnel who took part in the evaluation project, i.e., NCC No. 53 or CPG No. 80-4. In asserting that NCC No. 53 supplies the applicable guideline and that the COA erred in applying CPG No. 80-4 as the pertinent standard, petitioner contends that: (a) CPG No. 80-4 applies to "special projects" the definition and scope of which do not embrace the evaluation project undertaken by petitioner for the DENR; (b) NCC No. 53 applies to foreign-assisted projects ("FAPs") while CPG No. 80-4 applies to locally-funded projects as no reference to any foreign component characterizing the projects under its coverage is made; (c) the DENR evaluation project is a foreign-assisted project per certification and clarification of the DENR and DBM respectively as well as the implied admission of the COA in its Comment; and (d) the DBM's position on the matter should be respected since the DBM is vested with authority to (i) classify positions and determine appropriate salaries for specific position classes, (ii) review the compensation benefits programs of agencies and (iii) design job evaluation programs.
The Office of the Solicitor General, in lieu of a Comment on the Petition, filed a Manifestation 17 stating that (a) since, per certification of the DENR and Letter/Opinion of the DBM that the project undertaken by PSU is foreign-assisted, NCC No. 53 should apply; and (b) respondent COA's contention that CPG No. 80-4 does not distinguish between projects which are foreignfunded from locally-funded projects deserves no merit, since NCC No. 53, a special guideline, must be construed as an exception to CPG No. 80-4, a general guideline. The Solicitor General, in other words, agreed with the position of petitioner.

Upon the other hand, respondent COA filed its own comment, asserting that: (a) while the DBM is vested with the authority to issue rules and regulations pertaining to compensation, this authority is regulated by Sec. 2 (2) of Art. IX-D of the 1987 Constitution which vests respondent COA with the power to "promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant or unconscionable expenditures, or uses of government funds and properties; (b) the Organizational Arrangement and Obligations of the Parties sections of the MOA clearly show that the evaluation project is an "inter-agency activity" between the DENR and PSU and therefore a "special project"; (c) the issue as to whether the evaluation project is in fact a "special project" has become moot in view of the DBM's clarification/ruling that the evaluation project is foreign-assisted and therefore NCC No. 53, not CPG No. 80-4 which applies only to locally-funded projects, should apply; (d) the DBM issuance notwithstanding, respondent COA applied CPG No. 80-4 to effectively rationalize the rates of additional compensation assigned to or detailed in "special projects" as its application is without distinction as to the source of funding and any payment therefore in excess of that provided by CPG No. 80-4 is unnecessary, excessive and disadvantageous to the government; (e) respondent COA's previous allowance of payment of honoraria based on NCC No. 53 or the fact that a full five years had already elapsed since NCC No. 53's issuance does not preclude COA from assailing the circular's validity as "it is the responsibility of any public official to rectify every error he encounters in the performance of his function" and "he is not duty- bound to pursue the same mistake for the simple reason that such mistake had been continuously committed in the past";

30
(f) the DBM ruling classifying the evaluation project as foreign-assisted does not rest on solid ground since loan proceeds, regardless of source, eventually become public funds for which the government is accountable, hence, any project under the loan agreement is to be considered locally-funded; (g) the DBM ruling constitutes an unreasonable classification, highly discriminatory and violative of the equal protection clause of the Constitution; and (h) granting arguendo NCC No. 53 is the applicable criterion, petitioner received honoraria in excess of what was provided in the MOA. We consider the Petition meritorious. Sec. 2.1 of CPG No. 80-4 defines "special project" as an inter-agency or inter-committee activity or an undertaking by a composite group of officials/employees from various agencies which [activity or undertaking] is not among the regular and primary functions of the agencies involved. (Emphasis and brackets supplied) Respondent COA maintains that the sections of the MOA detailing the "Organizational Arrangement and Obligations of the Parties" clearly show that the evaluation project is an "inter-agency activity." The pertinent sections of the MOA are as follows: ORGANIZATIONAL ARRANGEMENTS A Coordinating Committee shall be created which shall be responsible for the overall administration and coordination of the evaluation, to be chaired by a senior officer of the DENR. The Committee shall [be] composed [of] the following: Chairman : Undersecretary for Planning, Policy and Project Management [DENR] Co-Chairman : Vice-President for Research and Development [PSU] Members : Director of FMB Dean, PSU Infanta Campus Associate Dean, PSU Infanta Campus Chief, Reforestation Division Project Director of the ADB Program Loan for Forestry Sector OBLIGATIONS OF THE PARTIES Obligations of DENR: The DENR shall have the following obligations: 1. Provide the funds necessary for the review and reevaluation of eleven (11) reforestation projects. xxx xxx xxx

31
2. Undertake the monitoring of the study to ascertain its progress and the proper utilization of funds in conformity with the agreed work and financial plan. 3. Reserve the right to accept or reject the final report and in the latter case, DENR may request PSU to make some revisions/modifications on the same. Obligations of the PSU: The PSU shall have the following obligations: 1. Undertake the review and evaluation of the eleven (11) DENR-funded reforestation projects in accordance with the attached TOR; 2. Submit regularly to DENR financial status reports apart from the progress report required to effect the second release of funds; 3. Submit the final report to DENR fifteen (15) days after the completion of the work. The report should at least contain the information which appears in Annex D; 4. Return to DENR whatever balance is left of the funds after the completion of work. Simply stated, respondent COA argues that since the Coordinating Committee is composed of personnel from the DENR and PSU, the evaluation project is an "inter-agency activity" within the purview of the definition of a "special project". We are unable to agree with respondent COA.
Examination of the definition in CPG No. 80-4 of a "special project" reveals that definition has two (2) components: firstly, there should be an inter-agency or inter-committee activity or undertaking by a group of officials or employees who are drawn from various agencies; and secondly, the activity or undertaking involved is not part of the "regular or primary" functions of the participating agencies. Examination of the MOA and its annexes reveals that two (2) groups were actually created. The first group consisted of the coordinating committee, the membership of which was drawn from officials of the DENR and of the PSU; and the second, the evaluation project team itself which was, in contrast, composed exclusively of PSU personnel. 18 We believe that the first component of the CPU No. 80-4's definition of "special project" is applicable in respect of the group which is charged with the actual carrying out of the project itself, rather than to the body or group which coordinates the task of the operating or implementing group. To construe the administrative definition of "special project" otherwise would create a situation, which we deem to be impractical and possibly even absurd, under which any undertaking entered into between the senior officials of government agencies would have to be considered an "inter-agency or inter-committee activity," even though the actual undertaking or operation would be carried out not by the coordinating body but rather by an separate group which might not (as in the present case) be drawn from the agencies represented in the coordinating group. In other words, an "interagency or inter-committee activity or . . . undertaking" must be one which is actually carried out by a composite group of officials and employees from the two (2) or more participating agencies.

As already noted, in the case at hand, the project team actually tasked with carrying out the evaluation of the DENR reforestation activity is composed exclusively of personnel from PSU; the project team's responsibility and undertaking are quite distinct from the responsibilities of the coordinating [DENR and PSU] committee. Thus, the project team is not a "composite group" as required by the definition of CPG No. 80-4 of "special projects." It follows that the evaluation projects here involved do not fall within the ambit of a "special project" as defined and regulated by CPG No. 80-4. We do not consider it necessary to rule on whether the project at hand involved an undertaking "which is not among the regular and primary functions of the agencies involved" since the reforestation activity evaluation group is not, as pointed out above, a "special project" within the meaning of CPG No. 80-4. In any case, this particular issue was not raised by any of the parties here involved.

32
It is true, as respondent COA points out, that the provisions of CPG No. 80-4 do not distinguish between "a special project" which is funded by monies of local or Philippine origin and "a special project" which is funded or assisted by monies originating from international or foreign agencies. As earlier noted, CPG No. 80-4 was issued by the Department of Budget and Management back in 7 August 1980. Upon the other hand, NCC No. 53 was issued also by the Department of Budget and Management more than eight (8) years later, i.e., 9 December 1988. Examination of the provisions of NCC No. 53 makes it crystal clear that the circular is applicable to foreign-assisted projects only. The explicit text of NCC No. 53 states that it was issued to
prescribe/authorize the classification and compensation rates of positions in foreign-assisted projects (FAPs) including honoraria rates for personnel detailed to FAPs and guidelines in the implementation thereof pursuant to Memorandum No. 173 dated 16 May 1988 19 (Emphasis supplied)

and which apply to all positions in foreign-assisted projects only. Clearly, NCC No. 53 amended the earlier CPG No. 80-4 by carving out from the subject matter originally covered by CPG No. 80-4 all "foreign-assisted [special] projects." CPG No. 80-4 was, accordingly, modified so far as "foreign-assisted [special] projects (FAPs)" are concerned. It is this fact or consequence of NCC No. 53 that respondent COA apparently failed to grasp. Thus, CPG No. 80-4 does not control, nor even relate to, the DENR evaluation project for at least two (2) reasons: firstly, the evaluation project was not a "special project" within the meaning of CPG No. 80-4; secondly, that same evaluation project was a Foreign-Assisted Project to which NCC No. 53 is specifically applicable. That the instant evaluation project is a Foreign-Assisted Project is borne out by the records: (a) the MOA states that the project is "part of the commitment with the Asian Development Bank (ADB) under the Forestry Sector Program Loan"; (b) the certification issued by the DENR certifies that . . . the review and evaluation of DENR reforestation projects undertaken by State Universities and Colleges, one of which is Pangasinan State University, is one of the components of the ADB/OECF Forestry Sector Program Loan which is funded by the loan. It is therefore a foreign-assisted project (Underscoring supplied); and (c) the clarification issued by the DBM stating that The honoraria rates of the detailed personnel should not be based on Compensation Policy Guidelines No. 80-4, which pertains to locally funded projects. Since the funding source for this activity come from loan proceeds, National Compensation Circular No. 53 should apply. Even in its Comment respondent COA submits that
. . . the issue as to whether or not the project was special already became moot in the face of the opinion/ruling of the DBM that since it (the project) is "foreign-assisted" NCC 53 should apply, for CPG No. 80-4 applies only to "locally-funded projects. 20 Under the Administration Code of 1987, the Compensation and Position Classification Bureau of the DBM "shall classify positions and determine appropriate salaries for specific position classes and review appropriate salaries for specific position classes and review the compensation benefits programs of agencies and shall design job evaluation programs." 21 In Warren Manufacturing Workers Union (WMWU) v. Bureau of Labor Relations , 22 the Court held that "administrative regulations and policies enacted by administrative bodies to interpret the law have the force of law and are entitled to great respect." It is difficult for the Court to understand why, despite these certifications, respondent COA took such a rigid and uncompromising posture that CPG No. 80-4 was the applicable criterion for honoraria to be given members of the reforestation evaluation project team of the PSU. Respondent COA's contention that the DBM clarification is unconstitutional as that ruling does not fulfill the requisites of a valid classification 23 is, in the Court's perception, imaginative but nonetheless an after-thought and a futile attempt to justify its action. As correctly pointed out by petitioner, the constitutional arguments raised by respondent COA here were never even mentioned, much less discussed, in COA Decisions Nos. 1547 (1990) and 2571 (1992) or in any of the proceedings conducted before it.

33
Petitioner also argues that the project's duration stipulated in the MOA was implicitly extended by the parties. The DENR's acceptance, without any comment or objection, of PSU's (a) letter explaining the delay in its submission of the final project report and (b) the final project report itself brought about, according to petitioner, an implied agreement between the parties to extend the project duration. It is also contended that by the very nature of an evaluation project, the project's duration is difficult to fix and as in the case at bar, the period fixed in the MOA is merely an initial estimate subject to extension. Lastly, petitioner argues that whether the project was impliedly extended is an inconsequential consideration; the material consideration being that the project stayed within its budget. The project having been extended, petitioner concludes that the evaluation team should be paid honoraria from the time it proceeded with the project and up to the time the DENR accepted its final report. Mindful of the detailed provisions of the MOA and Project Proposal governing project duration and project financing as regulated by NCC No. 53, the Court is not persuaded that petitioner can so casually assume implicit consent on the part of the DENR to an extension of the evaluation project's duration. The "Duration of Work" clause of the MOA provides that PSU shall commence the work 10 days from receipt of the Notice to Proceed and shall be completed five months thereafter. (Emphasis supplied) On 9 December 1988, the DENR advised PSU President Rufino Eslao that PSU "may now proceed with the review and reevaluation as stipulated" in the MOA. The Notice to Proceed further stated that Your institution is required to complete the work within five months starting ten (10) days upon receipt of this notice. (Emphasis supplied) In respect of the financial aspects of the project, the MOA provides that The DENR shall have the following obligations: 1. Provide the funds necessary for the review and reevaluation of the eleven (11) reforestation projects . . . in the amount not more than FIVE HUNDRED SIX THOUSAND TWO HUNDRED TWENTY FOUR PESOS (P506,224.00) which shall be spent in accordance with the work and financial plan which attached as Annex C. Fund remittances shall be made on a staggered basis with the following schedule: a. FIRST RELEASE Twenty percent (20%) of the total cost to be remitted within fifteen (15) working days upon submission of work plan; b. SECOND RELEASE Forty percent of the total cost upon submission of a progress report of the activities that were so far undertaken; c. THIRD RELEASE Thirty percent (30%) of the total amount upon submission of the draft final report; d. FOURTH RELEASE Ten percent of the total amount [upon submission] of the final report. (Underscoring supplied) Annex "C" referred to in the MOA is the Project Proposal. Per the Proposal's "Budget Estimate," P175,000.00 and P92,500.00 were allotted for "Expert Services" and "Support Services" respectively itemized as follows:

34
PERSONAL SERVICES EXPERT SERVICES Duration Expert of Service Rate/ Total (mo.) mo. 1. Ecologist 4 P5,000 P20,000 2. Silviculturist 3 -do- 15,000 3. Forestry Economist 4 -do- 20,000 4. Soils Expert 2 -do- 10,000 5. Social Forestry Expert 4 -do- 20,000 6. Management Expert 2 -do- 10,000 7. Horticulturist 2 -do- 10,000 8. Agricultural Engineer 2 -do- 10,000 9. Systems Analysts/Programer 2 -do- 10,000 10. Statistician 2 -do- 10,000 11. Shoreline Resources Expert 2 -do- 10,000 12. Animal Science Specialist 2 -do- 10,000 13. Policy/Administrative 4 -do- 20,000 Expert T O T A L P175,000

Support Services Research Associates (2) P8,000 Honorarium P1,000/mo. for 4 months Special Disbursing Officer (1) 4,000 Honorarium P1,000/mo. for 4 months Enumerators/Data Gatheres 36,000 360 mandays at P100/manday including COLA Coders/Encoders 30,000 300 mandays at P100/manday

35
including COLA Cartographer/Illustrator 5,000 50 mandays at P100/manday including COLA Documentalist 4,500 45 mandays at P100/manday including COLA Typist 5,000 50 mandays at P100/manday including COLA T O T A L P92,500 In addition, the Proposal already provided a list of identified experts: EXPERTS
1. Dr. Victorino P. Espero Enviromental Science 2. Dean Antonio Q. Repollo Silviculture 3. Prof. Artemio M. Rebugio Forestry Economics 4. Ms. Naomenida Olermo Soils 5. Dr. Elvira R. Castillo Social Forestry 6. Dr. Alfredo F. Aquino Management 7. Dr. Lydio Calonge Horticulture 8. Engr. Manolito Bernabe Engineering 9. Dr. Elmer C. Vingua Animal Science 10. Prof. Rolando J. Andico Systems Analysts Programming 11. Dr. Eusebio Miclat, Jr. Statistics/ Instrumentation 12. Dr. Porferio Basilio Shoreline Resources 13. Dr. Rufino O. Eslao Policy Administration

who, together with six (6) staff members namely Henedina M. Tantoco, Alicia Angelo Yolanda Z. Sotelo, Gregoria Q. Calela, Nora A. Caburnay and Marlene S. Bernebe composed the evaluation project team. At this point, it should be pointed out that the " Budget Estimate even provides a duration for the participation of each and every person whether rendering expert or support services.

On the other hand, NCC No. 53 provides: 3.3.1 The approved 0rganization and staffing shall be valid up to project completion except for modifications deemed necessary by the Project Manager. The Project Manager shall be given the flexibility to determine the timing of hiring personnel provided the approved man-years for a given position for the duration of the project is not exceeded. xxx xxx xxx 3.6 A regular employee who may detailed to any FAPs on a part-time basis shall be entitled to receivehonoraria in accordance with the schedule shown in Attachment II hereof. xxx xxx xxx

36
3.7 Payment of honoraria shall be made out of project funds and in no case shall payment thereof be made out of regular agency fund. xxx xxx xxx 3.10 The total amount of compensation to be paid shall not exceed the original amount allocated for personal services of the individual foreign-assisted projects. Any disbursement in excess of the original amount allotted for personal services of the individual projects shall be the personal liability and responsibility of the officials and employees authorizing or making such payment. (Underscoring supplied) Attachment II of NCC No. 53 prescribes the monthly rates allowed for officials/employees on assignment to foreignassisted special projects: A. Position Level Project Manager/Project Director Responsibility . . . Parttime P2,000.00 B. Position Level Assistant Project Director Responsibility . . . Parttime P1,500.00 C. Position Level Project Consultant Responsibility . . . Parttime P1,000.00 D. Position Level Supervisor/Senior Staff Member Responsibility . . . Parttime P1,000.00 E. Position Level Staff Member Responsibility . . . Parttime P700.00 Administrative and Clerical Support A. Position Level Administrative Assistant Responsibility . . .

37
Parttime P500.00 B. Position Level Administrative Support Staff Responsibility . . . Parttime P400.00
From the clear and detailed provisions of the MOA and Project Proposal in relation to NCC No. 53, consent to any extension of the evaluation project, in this instance, must be more concrete than the alleged silence or lack of protest on the part of the DENR. Although tacit acceptance is recognized in our jurisdiction, 24 as a rule, silence is not equivalent to consent since its ambiguity lends itself to error. And although under the Civil Code there are instances when silence amounts to consent, 25 these circumstances are wanting in the case at bar. Furthermore, as correctly pointed out by the respondent COA, the date when the DENR accepted the final project report is by no means conclusive as to the terminal date of the evaluation project. Examination of the MOA (quoted earlier on pages 19-20) reveals that the submission of reports merely served to trigger the phased releases of funds. There being no explicit agreement between PSU and the DENR to extend the duration of the evaluation project, the MOA's "Budget Estimate" which, among others, provides in detail the duration of service for each member of the evaluation project as amended by the rates provided by NCC No. 53 must be the basis of the honoraria due to the evaluation team.

The other arguments of respondent COA appear to us to be insubstantial and as, essentially, afterthoughts. The COA apparently does not agree with the policy basis of NCC No. 53 in relation to CPG No. 80-4 since COA argues that loan proceeds regardless of source eventually become public funds for which the government is accountable. The result would be that any provisions under any [foreign] loan agreement should be considered locally-funded. We do not consider that the COA is, under its constitutional mandate, authorized to substitute its own judgment for any applicable law or administrative regulation with the wisdom or propriety of which, however, it does not agree, at least not before such law or regulation is set aside by the authorized agency of government i.e., the courts as unconstitutional or illegal and void. The COA, like all other government agencies, must respect the presumption of legality and constitutionality to which statutes and administrative regulations are entitled 26 until such statute or regulation is repealed or amended, or until set aside in an appropriate case by a competent court (and ultimately this Court). Finally, we turn to petitioner's claim for moral damages and reimbursement of legal expenses. We consider that this claim cannot be granted as petitioner has failed to present evidence of bad faith or tortious intent warranting an award thereof. The presumption of regularity in the performance of duty must be accorded to respondent COA; its action should be seen as its effort to exercise (albeit erroneously, in the case at bar) its constitutional power and duty in respect of uses of government funds and properties. WHEREFORE, for all the foregoing, the Petition for Certiorari is hereby GRANTED. COA Decisions Nos. 1547 and 2571, respectively dated 18 September 1990 and 16 November 1992, are hereby SET ASIDE. The instant evaluation project being a Foreign-Assisted Project, the following PSU personnel involved in the project shall be paid according to the Budget Estimate schedule of the MOA as aligned with NCC No. 53: A. A. For Experts Duration Rate/ Expert of month Total Service (NCC (mo.) No. 53) 1. Dr. Rufino O. Eslao Policy/Admi- 4 P2,000 P8,000 nistrative expert*2. Dr. Victorino P. Espero Ecologist** 4 1,500 6,000 3. Dean Antonio Q. Repollo Silvicul- 3 1,000 3,000 turist*** 4. Prof. Artemio M. Rebugio Forestry 4 1,000 4,000

38
Economist 5. Ms. Naomenida Olermo Soils Expert 2 1,000 2,000 6. Dr. Elvira R. Castillo Social 4 1,000 4,000 Forestry Expert 7. Dr. Alfredo F. Aquino Management 2 1,000 2,000 Expert 8. Dr. Lydio Calonge Horticul 2 1,000 2,000 turist 9. Engr. Manolito Bernabe Agricultural 2 1,000 2,000 Engineer 10. Prof. Rolando J. Andico Systems 2 1,000 2,000 Analysts/ Programmer 11. Dr. Eusebio Miclat, Jr. Statistician 2 1,000 2,000 12. Dr. Porferio Basilio Shoreline 2 1,000 2,000 Resources Expert 13. Dr. Elmer C. Vingua Animal 2 1,000 2,000 Science Specialist 41,000 * Project Manager/ Project Director ** Assistant Project Director *** Project Consultants B. For Support Staff Duration Rate/ Expert of month Total Service (NCC (mo.) No. 53) 1 Henedina M. Tantoco Research 4 700 2,800 Associate** 2 Alicia Angelo Research 4 700 2,800 3 Yolanda Z. Sotelo Documentalist 2.04 700 1,428 4 Gregoria Q. Calela Special 4 700 2,800 Disbursing Officer 5 Nora A. Caburnay Typist 2.27 500 1,135 6 Marlene S. Bernebe Cashier 2.27 500 1,135 12,098 * Per Attachment to DBM Clarification dated 10 November 1989, Rollo, p. 59. ** Staff Member *** Administrative Assistants. No pronouncement as to costs.

39
SO ORDERED. Narvasa, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur. Cruz, Bidin, on leave.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. L-57883 March 12, 1982 GUALBERTO J. DE LA LLANA Presiding Judge, Branch II of the City Court of Olongapo, ESTANISLAO L. CESA, JR., FIDELA Y. VARGAS, BENJAMIN C. ESCOLANGO, JUANITO C. ATIENZA, MANUEL REYES ROSAPAPAN, JR., VIRGILIO E. ACIERTO, and PORFIRIO AGUILLON AGUILA, petitioners, vs.

40
MANUEL ALBA, Minister of Budget, FRANCISCO TANTUICO, Chairman, Commission on Audit, and RICARDO PUNO, Minister of Justice, Respondents.

FERNANDO, C.J.: This Court, pursuant to its grave responsibility of passing upon the validity of any executive or legislative act in an appropriate cases, has to resolve the crucial issue of the constitutionality of Batas Pambansa Blg. 129, entitled "An act reorganizing the Judiciary, Appropriating Funds Therefor and for Other Purposes." The task of judicial review, aptly characterized as exacting and delicate, is never more so than when a conceded legislative power, that of judicial reorganization, 1 may possibly collide with the time-honored principle of the independence of the judiciary 2 as protected and safeguarded by this constitutional provision: "The Members of the Supreme Court and judges of inferior courts shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. The Supreme Court shall have the power to discipline judges of inferior courts and, by a vote of at least eight Members, order their dismissal." 3 For the assailed legislation mandates that Justices and judges of inferior courts from the Court of Appeals to municipal circuit courts, except the occupants of the Sandiganbayan and the Court of Tax Appeals, unless appointed to the inferior courts established by such Act, would be considered separated from the judiciary. It is the termination of their incumbency that for petitioners justifies a suit of this character, it being alleged that thereby the security of tenure provision of the Constitution has been ignored and disregarded, That is the fundamental issue raised in this proceeding, erroneously entitled Petition for Declaratory Relief and/or for Prohibition 4 considered by this Court as an action for prohibited petition, seeking to enjoin respondent Minister of the Budget, respondent Chairman of the Commission on Audit, and respondent Minister of Justice from taking any action implementing Batas Pambansa Blg. 129. Petitioners 5 sought to bolster their claim by imputing lack of good faith in its enactment and characterizing as an undue delegation of legislative power to the President his authority to fix the compensation and allowances of the Justices and judges thereafter appointed and the determination of the date when the reorganization shall be deemed completed. In the very comprehensive and scholarly Answer of Solicitor General Estelito P. Mendoza, 6 it was pointed out that there is no valid justification for the attack on the constitutionality of this statute, it being a legitimate exercise of the power vested in the Batasang Pambansa to reorganize the judiciary, the allegations of absence of good faith as well as the attack on the independence of the judiciary being unwarranted and devoid of any support in law. A Supplemental Answer was likewise filed on October 8, 1981, followed by a Reply of petitioners on October 13. After the hearing in the morning and afternoon of October 15, in which not only petitioners and respondents were heard through counsel but also the amici curiae, 7 and thereafter submission of the minutes of the proceeding on the debate on Batas Pambansa Blg. 129, this petition was deemed submitted for decision.

The importance of the crucial question raised called for intensive and rigorous study of all the legal aspects of the case. After such exhaustive deliberation in several sessions, the exchange of views being supplemented by memoranda from the members of the Court, it is our opinion and so hold that Batas Pambansa Blg. 129 is not unconstitutional.
1. The argument as to the lack of standing of petitioners is easily resolved. As far as Judge de la Llana is concerned, he certainly falls within the principle set forth in Justice Laurel's opinion in People v. Vera. 8 Thus: "The unchallenged rule is that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement." 9 The other petitioners as members of the bar and officers of the court cannot be considered as devoid of "any personal and substantial interest" on the matter. There is relevance to this excerpt from a separate opinion in Aquino, Jr. v. Commission on Elections: 10 "Then there is the attack on the standing of petitioners, as vindicating at most what they consider a public right and not protecting their rights as individuals. This is to conjure the specter of the public right dogma as an inhibition to parties intent on keeping public officials staying on the path of constitutionalism. As was so well put by Jaffe: 'The protection of private rights is an essential constituent of public interest and, conversely, without a well-ordered state there could be no enforcement of private rights. Private and public interests are, both in substantive and procedural sense, aspects of the totality of the legal order.' Moreover, petitioners have convincingly shown that in their capacity as taxpayers, their standing to sue has been amply demonstrated. There would be a retreat from the liberal approach followed in Pascual v. Secretary of Public Works,foreshadowed by the very decision of People v. Vera where the doctrine was first fully discussed, if we act differently now. I do not think we are prepared to take that step. Respondents, however, would hark back to the American Supreme Court doctrine in Mellon v. Frothingham with their claim that what petitioners possess 'is an interest which is shared in common by other people and is comparatively so minute and indeterminate as to afford any basis and assurance that the judicial process can act on it.' That is to speak in the language of a bygone era

41
even in the United States. For as Chief Justice Warren clearly pointed out in the later case of Flast v. Cohen, the barrier thus set up if not breached has definitely been lowered." 11 2. The imputation of arbitrariness to the legislative body in the enactment of Batas Pambansa Blg. 129 to demonstrate lack of good faith does manifest violence to the facts. Petitioners should have exercised greater care in informing themselves as to its antecedents. They had laid themselves open to the accusation of reckless disregard for the truth, On August 7, 1980, a Presidential Committee on Judicial Reorganization was organized. 12 This Executive Order was later amended by Executive Order No. 619-A., dated September 5 of that year. It clearly specified the task assigned to it: "1. The Committee shall formulate plans on the reorganization of the Judiciary which shall be submitted within seventy (70) days from August 7, 1980 to provide the President sufficient options for the reorganization of the entire Judiciary which shall embrace all lower courts, including the Court of Appeals, the Courts of First Instance, the City and Municipal Courts, and all Special Courts, but excluding the Sandigan Bayan." 13 On October 17, 1980, a Report was submitted by such Committee on Judicial Reorganization. It began with this paragraph: "The Committee on Judicial Reorganization has the honor to submit the following Report. It expresses at the outset its appreciation for the opportunity accorded it to study ways and means for what today is a basic and urgent need, nothing less than the restructuring of the judicial system. There are problems, both grave and pressing, that call for remedial measures. The felt necessities of the time, to borrow a phrase from Holmes, admit of no delay, for if no step be taken and at the earliest opportunity, it is not too much to say that the people's faith in the administration of justice could be shaken. It is imperative that there be a greater efficiency in the disposition of cases and that litigants, especially those of modest means much more so, the poorest and the humblest can vindicate their rights in an expeditious and inexpensive manner. The rectitude and the fairness in the way the courts operate must be manifest to all members of the community and particularly to those whose interests are affected by the exercise of their functions. It is to that task that the Committee addresses itself and hopes that the plans submitted could be a starting point for an institutional reform in the Philippine judiciary. The experience of the Supreme Court, which since 1973 has been empowered to supervise inferior courts, from the Court of Appeals to the municipal courts, has proven that reliance on improved court management as well as training of judges for more efficient administration does not suffice. I hence, to repeat, there is need for a major reform in the judicial so stem it is worth noting that it will be the first of its kind since the Judiciary Act became effective on June 16, 1901." 14 I t went to say: "I t does not admit of doubt that the last two decades of this century are likely to be attended with problems of even greater complexity and delicacy. New social interests are pressing for recognition in the courts. Groups long inarticulate, primarily those economically underprivileged, have found legal spokesmen and are asserting grievances previously ignored. Fortunately, the judicially has not proved inattentive. Its task has thus become even more formidable. For so much grist is added to the mills of justice. Moreover, they are likewise to be quite novel. The need for an innovative approach is thus apparent. The national leadership, as is well-known, has been constantly on the search for solutions that will prove to be both acceptable and satisfactory. Only thus may there be continued national progress." 15 After which comes: "To be less abstract, the thrust is on development. That has been repeatedly stressed and rightly so. All efforts are geared to its realization. Nor, unlike in the past, was it to b "considered as simply the movement towards economic progress and growth measured in terms of sustained increases in per capita income and Gross National Product (GNP). 16 For the New Society, its implication goes further than economic advance, extending to "the sharing, or more appropriately, the democratization of social and economic opportunities, the substantiation of the true meaning of social justice." 17 This process of modernization and change compels the government to extend its field of activity and its scope of operations. The efforts towards reducing the gap between the wealthy and the poor elements in the nation call for more regulatory legislation. That way the social justice and protection to labor mandates of the Constitution could be effectively implemented." 18 There is likelihood then "that some measures deemed inimical by interests adversely affected would be challenged in court on grounds of validity. Even if the question does not go that far, suits may be filed concerning their interpretation and application. ... There could be pleas for injunction or restraining orders. Lack of success of such moves would not, even so, result in their prompt final disposition. Thus delay in the execution of the policies embodied in law could thus be reasonably expected. That is not conducive to progress in development." 19 For, as mentioned in such Report, equally of vital concern is the problem of clogged dockets, which "as is well known, is one of the utmost gravity. Notwithstanding the most determined efforts exerted by the Supreme Court, through the leadership of both retired Chief Justice Querube Makalintal and the late Chief Justice Fred Ruiz Castro, from the time supervision of the courts was vested in it under the 1973 Constitution, the trend towards more and more cases has continued." 20 It is understandable why. With the accelerated economic development, the growth of population, the increasing urbanization, and other similar factors, the judiciary is called upon much oftener to resolve controversies. Thus confronted with what appears to be a crisis situation that calls for a remedy, the Batasang Pambansa had no choice. It had to act, before the ailment became even worse. Time was of the essence, and yet it did not hesitate to be duly mindful, as it ought to be, of the extent of its coverage before enacting Batas Pambansa Blg. 129. 3. There is no denying, therefore, the need for "institutional reforms," characterized in the Report as "both pressing and urgent." 21 It is worth noting, likewise, as therein pointed out, that a major reorganization of such scope, if it were to take place, would be the most thorough after four generations. 22 The reference was to the basic Judiciary Act generations . enacted in June of 1901, 23 amended in a significant way, only twice previous to the Commonwealth. There was, of course, the creation of the

42
Court of Appeals in 1935, originally composed "of a Presiding Judge and ten appellate Judges, who shall be appointed by the President of the Philippines, with the consent of the Commission on Appointments of the National Assembly, 24 It could "sit en banc, but it may sit in two divisions, one of six and another of five Judges, to transact business, and the two divisions may sit at the same time." 25 Two years after the establishment of independence of the Republic of the Philippines, the Judiciary Act of 1948 26 was passed. It continued the existing system of regular inferior courts, namely, the Court of Appeals, Courts of First Instance, 27 the Municipal Courts, at present the City Courts, and the Justice of the Peace Courts, now the Municipal Circuit Courts and Municipal Courts. The membership of the Court of Appeals has been continuously increased. 28 Under a 1978 Presidential Decree, there would be forty-five members, a Presiding Justice and forty-four Associate Justices, with fifteen divisions. 29 Special courts were likewise created. The first was the Court of Tax Appeals in 1954, 30 next came the Court of Agrarian Relations in 1955, 31 and then in the same year a Court of the Juvenile and Domestic Relations for Manila in 1955, 32 subsequently followed by the creation of two other such courts for Iloilo and Quezon City in 1966. 33 In 1967, Circuit Criminal Courts were established, with the Judges having the same qualifications, rank, compensation, and privileges as judges of Courts of First Instance. 34 4. After the submission of such Report, Cabinet Bill No. 42, which later became the basis of Batas Pambansa Blg. 129, was introduced. After setting forth the background as above narrated, its Explanatory Note continues: "Pursuant to the President's instructions, this proposed legislation has been drafted in accordance with the guidelines of that report with particular attention to certain objectives of the reorganization, to wit, the attainment of more efficiency in disposal of cases, a reallocation of jurisdiction, and a revision of procedures which do not tend to the proper meeting out of justice. In consultation with, and upon a consensus of, the governmental and parliamentary leadership, however, it was felt that some options set forth in the Report be not availed of. Instead of the proposal to confine the jurisdiction of the intermediate appellate court merely to appellate adjudication, the preference has been opted to increase rather than diminish its jurisdiction in order to enable it to effectively assist the Supreme Court. This preference has been translated into one of the innovations in the proposed Bill." 35 In accordance with the parliamentary procedure, the Bill was sponsored by the Chairman of the Committee on Justice, Human Rights and Good Government to which it was referred. Thereafter, Committee Report No. 225 was submitted by such Committee to the Batasang Pambansa recommending the approval with some amendments. In the sponsorship speech of Minister Ricardo C. Puno, there was reference to the Presidential Committee on Judicial Reorganization. Thus: "On October 17, 1980, the Presidential Committee on Judicial Reorganization submitted its report to the President which contained the 'Proposed Guidelines for Judicial Reorganization.' Cabinet Bill No. 42 was drafted substantially in accordance with the options presented by these guidelines. Some options set forth in the aforesaid report were not availed of upon consultation with and upon consensus of the government and parliamentary leadership. Moreover, some amendments to the bill were adopted by the Committee on Justice, Human Rights and Good Government, to which The bill was referred, following the public hearings on the bill held in December of 1980. The hearings consisted of dialogues with the distinguished members of the bench and the bar who had submitted written proposals, suggestions, and position papers on the bill upon the invitation of the Committee on Justice, Human Rights and Good Government." 36 Stress was laid by the sponsor that the enactment of such Cabinet Bill would, firstly, result in the attainment of more efficiency in the disposal of cases. Secondly, the improvement in the quality of justice dispensed by the courts is expected as a necessary consequence of the easing of the court's dockets. Thirdly, the structural changes introduced in the bill, together with the reallocation of jurisdiction and the revision of the rules of procedure, are designated to suit the court system to the exigencies of the present day Philippine society, and hopefully, of the foreseeable future." 37 it may be observed that the volume containing the minutes of the proceedings of the Batasang Pambansa show that 590 pages were devoted to its discussion. It is quite obvious that it took considerable time and effort as well as exhaustive study before the act was signed by the President on August 14, 1981. With such a background, it becomes quite manifest how lacking in factual basis is the allegation that its enactment is tainted by the vice of arbitrariness. What appears undoubted and undeniable is the good faith that characterized its enactment from its inception to the affixing of the Presidential signature. 5. Nothing is better settled in our law than that the abolition of an office within the competence of a legitimate body if done in good faith suffers from no infirmity. The ponencia of Justice J.B.L. Reyes in Cruz v. Primicias, Jr. 38 reiterated such a doctrine: "We find this point urged by respondents, to be without merit. No removal or separation of petitioners from the service is here involved, but the validity of the abolition of their offices. This is a legal issue that is for the Courts to decide. It is well-known rule also that valid abolition of offices is neither removal nor separation of the incumbents. ... And, of course, if the abolition is void, the incumbent is deemed never to have ceased to hold office. The preliminary question laid at rest, we pass to the merits of the case. As well-settled as the rule that the abolition of an office does not amount to an illegal removal of its incumbent is the principle that, in order to be valid, the abolition must be made in good faith." 39 The above excerpt was quoted with approval in Bendanillo, Sr. v. Provincial Governor, 40 two earlier cases enunciating a similar doctrine having preceded it. 41 As with the offices in the other branches of the government, so it is with the judiciary. The test remains whether the abolition is in good faith. As that element is conspicuously present in the enactment of Batas Pambansa Blg. 129, then the lack of merit of this petition becomes even more apparent. The concurring opinion of Justice Laurel in Zandueta v. De la Costa 42 cannot be any clearer. This is a quo warranto proceeding filed by petitioner, claiming that he, and not respondent, was entitled to he office of judge of

43
the Fifth Branch of the Court of First Instance of Manila. There was a Judicial Reorganization Act in 1936, 43 a year after the inauguration of the Commonwealth, amending the Administrative Code to organize courts of original jurisdiction known as the Courts of First Instance Prior to such statute, petitioner was the incumbent of such branch. Thereafter, he received an ad interim appointment, this time to the Fourth Judicial District, under the new legislation. Unfortunately for him, the Commission on Appointments of then National Assembly disapproved the same, with respondent being appointed in his place. He contested the validity of the Act insofar as it resulted in his being forced to vacate his position This Court did not rule squarely on the matter. His petition was dismissed on the ground of estoppel. Nonetheless, the separate concurrence of Justice Laurel in the result reached, to repeat, reaffirms in no uncertain terms the standard of good faith to preclude any doubt as to the abolition of an inferior court, with due recognition of the security of tenure guarantee. Thus: " I am of the opinion that Commonwealth Act No. 145 in so far as it reorganizes, among other judicial districts, the Ninth Judicial District, and establishes an entirely new district comprising Manila and the provinces of Rizal and Palawan, is valid and constitutional. This conclusion flows from the fundamental proposition that the legislature may abolish courts inferior to the Supreme Court and therefore may reorganize them territorially or otherwise thereby necessitating new appointments and commissions. Section 2, Article VIII of the Constitution vests in the National Assembly the power to define, prescribe and apportion the jurisdiction of the various courts, subject to certain limitations in the case of the Supreme Court. It is admitted that section 9 of the same article of the Constitution provides for the security of tenure of all the judges. The principles embodied in these two sections of the same article of the Constitution must be coordinated and harmonized. A mere enunciation of a principle will not decide actual cases and controversies of every sort. (Justice Holmes in Lochner vs. New York, 198 U.S., 45; 49 Law. ed; 937)" 44justice Laurel continued: "I am not insensible to the argument that the National Assembly may abuse its power and move deliberately to defeat the constitutional provision guaranteeing security of tenure to all judges, But, is this the case? One need not share the view of Story, Miller and Tucker on the one hand, or the opinion of Cooley, Watson and Baldwin on the other, to realize that the application of a legal or constitutional principle is necessarily factual and circumstantial and that fixity of principle is the rigidity of the dead and the unprogressive. I do say, and emphatically, however, that cases may arise where the violation of the constitutional provision regarding security of tenure is palpable and plain, and that legislative power of reorganization may be sought to cloak an unconstitutional and evil purpose. When a case of that kind arises, it will be the time to make the hammer fall and heavily. But not until then. I am satisfied that, as to the particular point here discussed, the purpose was the fulfillment of what was considered a great public need by the legislative department and that Commonwealth Act No. 145 was not enacted purposely to affect adversely the tenure of judges or of any particular judge. Under these circumstances, I am for sustaining the power of the legislative department under the Constitution. To be sure, there was greater necessity for reorganization consequent upon the establishment of the new government than at the time Acts Nos. 2347 and 4007 were approved by the defunct Philippine Legislature, and although in the case of these two Acts there was an express provision providing for the vacation by the judges of their offices whereas in the case of Commonwealth Act No. 145 doubt is engendered by its silence, this doubt should be resolved in favor of the valid exercise of the legislative power." 45 6. A few more words on the question of abolition. In the above-cited opinion of Justice Laurel in Zandueta, reference was made to Act No. 2347 46 on the reorganization of the Courts of First Instance and to Act No. 4007 47 on the reorganization of all branches of the government, including the courts of first instance. In both of them, the then Courts of First Instance were replaced by new courts with the same appellation. As Justice Laurel pointed out, there was no question as to the fact of abolition. He was equally categorical as to Commonwealth Act No. 145, where also the system of the courts of first instance was provided for expressly. It was pointed out by Justice Laurel that the mere creation of an entirely new district of the same court is valid and constitutional. such conclusion flowing "from the fundamental proposition that the legislature may abolish courts inferior to the Supreme Court and therefore may reorganize them territorially or otherwise thereby necessitating new appointments and commissions." 48 The challenged statute creates an intermediate appellate court, 49regional trial courts, 50 metropolitan trial courts of the national capital region, 51 and other metropolitan trial courts, 52municipal trial courts in cities, 53 as well as in municipalities, 54 and municipal circuit trial courts. 55 There is even less reason then to doubt the fact that existing inferior courts were abolished. For the Batasang Pambansa, the establishment of such new inferior courts was the appropriate response to the grave and urgent problems that pressed for solution. Certainly, there could be differences of opinion as to the appropriate remedy. The choice, however, was for the Batasan to make, not for this Court, which deals only with the question of power. It bears mentioning that in Brillo v. Eage 56 this Court, in an unanimous opinion penned by the late Justice Diokno, citing Zandueta v. De la Costa, ruled: "La segunda question que el recurrrido plantea es que la Carta de Tacloban ha abolido el puesto. Si efectivamente ha sido abolido el cargo, entonces ha quedado extinguido el derecho de recurente a ocuparlo y a cobrar el salario correspodiente. Mc Culley vs. State, 46 LRA, 567. El derecho de un juez de desempenarlo hasta los 70 aos de edad o se incapacite no priva al Congreso de su facultad de abolir, fusionar o reorganizar juzgados no constitucionales." 57 Nonetheless, such well-established principle was not held applicable to the situation there obtaining, the Charter of Tacloban City creating a city court in place of the former justice of the peace court. Thus: "Pero en el caso de autos el Juzgado de Tacloban no ha sido abolido. Solo se le ha cambiado el nombre con el cambio de forma del gobierno local." 58 The present case is anything but that. Petitioners did not and could not prove that the challenged statute was not within the bounds of legislative authority.

44
7. This opinion then could very well stop at this point. The implementation of Batas Pambansa Blg. 129, concededly a task incumbent on the Executive, may give rise, however, to questions affecting a judiciary that should be kept independent. The allembracing scope of the assailed legislation as far as all inferior courts from the Courts of Appeals to municipal courts are concerned, with the exception solely of the Sandiganbayan and the Court of Tax Appeals 59 gave rise, and understandably so, to misgivings as to its effect on such cherished Ideal. The first paragraph of the section on the transitory provision reads: "The provisions of this Act shall be immediately carried out in accordance with an Executive Order to be issued by the President. The Court of Appeals, the Courts of First Instance, the Circuit Criminal Courts, the Juvenile and Domestic Relations Courts, the Courts of Agrarian Relations, the City Courts, the Municipal Courts, and the Municipal Circuit Courts shall continue to function as presently constituted and organized, until the completion of the reorganization provided in this Act as declared by the President. Upon such declaration, the said courts shall be deemed automatically abolished and the incumbents thereof shall cease to hold the office." 60 There is all the more reason then why this Court has no choice but to inquire further into the allegation by petitioners that the security of tenure provision, an assurance of a judiciary free from extraneous influences, is thereby reduced to a barren form of words. The amended Constitution adheres even more clearly to the long-established tradition of a strong executive that antedated the 1935 Charter. As noted in the work of former Vice-Governor Hayden, a noted political scientist, President Claro M. Recto of the 1934 Convention, in his closing address, in stressing such a concept, categorically spoke of providing "an executive power which, subject to the fiscalization of the Assembly, and of public opinion, will not only know how to govern, but will actually govern, with a firm and steady hand, unembarrassed by vexatious interferences by other departments, or by unholy alliances with this and that social group." 61 The above excerpt was cited with approval by Justice Laurel in Planas v. Gil.62 Moreover, under the 1981 Amendments, it may be affirmed that once again the principle of separation of powers, to quote from the same jurist as ponente in Angara v. Electoral Commission, 63 "obtains not through express provision but by actual division." 64 The president, under Article VII, shall be the head of state and chief executive of the Republic of the Philippines." 65 Moreover, it is equally therein expressly provided that all the powers he possessed under the 1935 Constitution are once again vested in him unless the Batasang Pambansa provides otherwise." 66 Article VII of the 1935 Constitution speaks categorically: "The Executive power shall be vested in a President of the Philippines." 67 As originally framed, the 1973 Constitution created the position of President as the "symbolic head of state." 68 In addition, there was a provision for a Prime Minister as the head of government exercising the executive power with the assistance of the Cabinet69 Clearly, a modified parliamentary system was established. In the light of the 1981 amendments though, this Court inFree Telephone Workers Union v. Minister of Labor 70 could state: "The adoption of certain aspects of a parliamentary system in the amended Constitution does not alter its essentially presidential character." 71 The retention, however, of the position of the Prime Minister with the Cabinet, a majority of the members of which shall come from the regional representatives of the Batasang Pambansa and the creation of an Executive Committee composed of the Prime Minister as Chairman and not more than fourteen other members at least half of whom shall be members of the Batasang Pambansa, clearly indicate the evolving nature of the system of government that is now operative. 72 What is equally apparent is that the strongest ties bind the executive and legislative departments. It is likewise undeniable that the Batasang Pambansa retains its full authority to enact whatever legislation may be necessary to carry out national policy as usually formulated in a caucus of the majority party. It is understandable then why in Fortun v. Labang 73 it was stressed that with the provision transferring to the Supreme Court administrative supervision over the Judiciary, there is a greater need "to preserve unimpaired the independence of the judiciary, especially so at present, where to all intents and purposes, there is a fusion between the executive and the legislative branches." 74 8. To be more specific, petitioners contend that the abolition of the existing inferior courts collides with the security of tenure enjoyed by incumbent Justices and judges under Article X, Section 7 of the Constitution. There was a similar provision in the 1935 Constitution. It did not, however, go as far as conferring on this Tribunal the power to supervise administratively inferior courts. 75 Moreover, this Court is em powered "to discipline judges of inferior courts and, by a vote of at least eight members, order their dismissal." 76 Thus it possesses the competence to remove judges. Under the Judiciary Act, it was the President who was vested with such power. 77 Removal is, of course, to be distinguished from termination by virtue of the abolition of the office. There can be no tenure to a non-existent office. After the abolition, there is in law no occupant. In case of removal, there is an office with an occupant who would thereby lose his position. It is in that sense that from the standpoint of strict law, the question of any impairment of security of tenure does not arise. Nonetheless, for the incumbents of inferior courts abolished, the effect is one of separation. As to its effect, no distinction exists between removal and the abolition of the office. Realistically, it is devoid of significance. He ceases to be a member of the judiciary. In the implementation of the assailed legislation, therefore, it would be in accordance with accepted principles of constitutional construction that as far as incumbent justices and judges are concerned, this Court be consulted and that its view be accorded the fullest consideration. No fear need be entertained that there is a failure to accord respect to the basic principle that this Court does not render advisory opinions. No question of law is involved. If such were the case, certainly this Court could not have its say prior to the action taken by either of the two departments. Even then, it could do so but only by way of deciding a case where the matter has been put in issue. Neither is there any intrusion into who shall be appointed to the vacant positions created by the reorganization. That remains in the hands of the Executive to whom it properly belongs. There is no departure therefore from the tried and tested ways of judicial power,

45
Rather what is sought to be achieved by this liberal interpretation is to preclude any plausibility to the charge that in the exercise of the conceded power of reorganizing tulle inferior courts, the power of removal of the present incumbents vested in this Tribunal is ignored or disregarded. The challenged Act would thus be free from any unconstitutional taint, even one not readily discernidble except to those predisposed to view it with distrust. Moreover, such a construction would be in accordance with the basic principle that in the choice of alternatives between one which would save and another which would invalidate a statute, the former is to be preferred. 78 There is an obvious way to do so. The principle that the Constitution enters into and forms part of every act to avoid any constitutional taint must be applied Nuez v. Sandiganbayan, 79 promulgated last January, has this relevant excerpt: "It is true that other Sections of the Decree could have been so worded as to avoid any constitutional objection. As of now, however, no ruling is called for. The view is given expression in the concurring and dissenting opinion of Justice Makasiar that in such a case to save the Decree from the direct fate of invalidity, they must be construed in such a way as to preclude any possible erosion on the powers vested in this Court by the Constitution. That is a proposition too plain to be committed. It commends itself for approval." 80 Nor would such a step be unprecedented. The Presidential Decree constituting Municipal Courts into Municipal Circuit Courts, specifically provides: "The Supreme Court shall carry out the provisions of this Decree through implementing orders, on a province-to-province basis." 81 It is true there is no such provision in this Act, but the spirit that informs it should not be ignored in the Executive Order contemplated under its Section 44. 82 Thus Batas Pambansa Blg. 129 could stand the most rigorous test of constitutionality. 83 9. Nor is there anything novel in the concept that this Court is called upon to reconcile or harmonize constitutional provisions. To be specific, the Batasang Pambansa is expressly vested with the authority to reorganize inferior courts and in the process to abolish existing ones. As noted in the preceding paragraph, the termination of office of their occupants, as a necessary consequence of such abolition, is hardly distinguishable from the practical standpoint from removal, a power that is now vested in this Tribunal. It is of the essence of constitutionalism to assure that neither agency is precluded from acting within the boundaries of its conceded competence. That is why it has long been well-settled under the constitutional system we have adopted that this Court cannot, whenever appropriate, avoid the task of reconciliation. As Justice Laurel put it so well in the previously cited Angara decision, while in the main, "the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government, the overlapping and interlacing of functions and duties between the several departments, however, sometimes makes it hard to say just where the one leaves off and the other begins." 84 It is well to recall another classic utterance from the same jurist, even more emphatic in its affirmation of such a view, moreover buttressed by one of those insights for which Holmes was so famous "The classical separation of government powers, whether viewed in the light of the political philosophy of Aristotle, Locke, or Motesquieu or of the postulations of Mabini, Madison, or Jefferson, is a relative theory of government. There is more truism and actuality in interdependence than in independence and separation of powers, for as observed by Justice Holmes in a case of Philippine origin, we cannot lay down 'with mathematical precision and divide the branches into water-tight compartments' not only because 'the great ordinances of the Constitution do not establish and divide fields of black and white but also because 'even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other.'" 85 This too from Justice Tuazon, likewise expressing with force and clarity why the need for reconciliation or balancing is well-nigh unavodiable under the fundamental principle of separation of powers: "The constitutional structure is a complicated system, and overlappings of governmental functions are recognized, unavoidable, and inherent necessities of governmental coordination." 86 In the same way that the academe has noted the existence in constitutional litigation of right versus right, there are instances, and this is one of them, where, without this attempt at harmonizing the provisions in question, there could be a case of power against power. That we should avoid. 10. There are other objections raised but they pose no difficulty. Petitioners would characterize as an undue delegation of legislative power to the President the grant of authority to fix the compensation and the allowances of the Justices and judges thereafter appointed. A more careful reading of the challenged Batas Pambansa Blg. 129 ought to have cautioned them against raising such an issue. The language of the statute is quite clear. The questioned provisions reads as follows: "Intermediate Appellate Justices, Regional Trial Judges, Metropolitan Trial Judges, municipal Trial Judges, and Municipal Circuit Trial Judges shall receive such receive such compensation and allowances as may be authorized by the President along the guidelines set forth in Letter of Implementation No. 93 pursuant to Presidential Decree No. 985, as amended by Presidential Decree No. 1597." 87 The existence of a standard is thus clear. The basic postulate that underlies the doctrine of non-delegation is that it is the legislative body which is entrusted with the competence to make laws and to alter and repeal them, the test being the completeness of the statue in all its terms and provisions when enacted. As pointed out inEdu v. Ericta: 88 "To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that the legislature itself determines matters of principle and lays down fundamental policy. Otherwise, the charge of complete abdication may be hard to repel. A standard thus defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. It is the criterion by which legislative purpose may be carried out. Thereafter, the executive or administrative office designated may in pursuance of the above guidelines promulgate supplemental rules and regulations. The standard may be either express or implied. If the former, the non-delegation objection

46
is easily met. The standard though does not have to be spelled out specifically. It could be implied from the policy and purpose of the act considered as a whole." 89 The undeniably strong links that bind the executive and legislative departments under the amended Constitution assure that the framing of policies as well as their implementation can be accomplished with unity, promptitude, and efficiency. There is accuracy, therefore, to this observation in the Free Telephone Workers Union decision: "There is accordingly more receptivity to laws leaving to administrative and executive agencies the adoption of such means as may be necessary to effectuate a valid legislative purpose. It is worth noting that a highly-respected legal scholar, Professor Jaffe, as early as 1947, could speak of delegation as the 'dynamo of modern government.'" 90 He warned against a "restrictive approach" which could be "a deterrent factor to much-needed legislation." 91 Further on this point from the same opinion" "The spectre of the non-delegation concept need not haunt, therefore, party caucuses, cabinet sessions or legislative chambers." 92 Another objection based on the absence in the statue of what petitioners refer to as a "definite time frame limitation" is equally bereft of merit. They ignore the categorical language of this provision: "The Supreme Court shall submit to the President, within thirty (30) days from the date of the effectivity of this act, a staffing pattern for all courts constituted pursuant to this Act which shall be the basis of the implementing order to be issued by the President in accordance with the immediately succeeding section." 93 The first sentence of the next section is even more categorical: "The provisions of this Act shall be immediately carried out in accordance with an Executive Order to be issued by the President." 94 Certainly petitioners cannot be heard to argue that the President is insensible to his constitutional duty to take care that the laws be faithfully executed. 95 In the meanwhile, the existing inferior courts affected continue functioning as before, "until the completion of the reorganization provided in this Act as declared by the President. Upon such declaration, the said courts shall be deemed automatically abolished and the incumbents thereof shall cease to hold office." 96 There is no ambiguity. The incumbents of the courts thus automatically abolished "shall cease to hold office." No fear need be entertained by incumbents whose length of service, quality of performance, and clean record justify their being named anew, 97 in legal contemplation without any interruption in the continuity of their service. 98 It is equally reasonable to assume that from the ranks of lawyers, either in the government service, private practice, or law professors will come the new appointees. In the event that in certain cases a little more time is necessary in the appraisal of whether or not certain incumbents deserve reappointment, it is not from their standpoint undesirable. Rather, it would be a reaffirmation of the good faith that will characterize its implementation by the Executive. There is pertinence to this observation of Justice Holmes that even acceptance of the generalization that courts ordinarily should not supply omissions in a law, a generalization qualified as earlier shown by the principle that to save a statute that could be done, "there is no canon against using common sense in construing laws as saying what they obviously mean." 99 Where then is the unconstitutional flaw 11. On the morning of the hearing of this petition on September 8, 1981, petitioners sought to have the writer of this opinion and Justices Ramon C. Aquino and Ameurfina Melencio-Herrera disqualified because the first-named was the chairman and the other two, members of the Committee on Judicial Reorganization. At the hearing, the motion was denied. It was made clear then and there that not one of the three members of the Court had any hand in the framing or in the discussion of Batas Pambansa Blg. 129. They were not consulted. They did not testify. The challenged legislation is entirely the product of the efforts of the legislative body. 100 Their work was limited, as set forth in the Executive Order, to submitting alternative plan for reorganization. That is more in the nature of scholarly studies. That the undertook. There could be no possible objection to such activity. Ever since 1973, this Tribunal has had administrative supervision over interior courts. It has had the opportunity to inform itself as to the way judicial business is conducted and how it may be improved. Even prior to the 1973 Constitution, it is the recollection of the writer of this opinion that either the then Chairman or members of the Committee on Justice of the then Senate of the Philippines 101 consulted members of the Court in drafting proposed legislation affecting the judiciary. It is not inappropriate to cite this excerpt from an article in the 1975 Supreme Court Review: "In the twentieth century the Chief Justice of the United States has played a leading part in judicial reform. A variety of conditions have been responsible for the development of this role, and foremost among them has been the creation of explicit institutional structures designed to facilitate reform." 102 Also: "Thus the Chief Justice cannot avoid exposure to and direct involvement in judicial reform at the federal level and, to the extent issues of judicial federalism arise, at the state level as well." 103 12. It is a cardinal article of faith of our constitutional regime that it is the people who are endowed with rights, to secure which a government is instituted. Acting as it does through public officials, it has to grant them either expressly or impliedly certain powers. Those they exercise not for their own benefit but for the body politic. The Constitution does not speak in the language of ambiguity: "A public office is a public trust." 104 That is more than a moral adjuration It is a legal imperative. The law may vest in a public official certain rights. It does so to enable them to perform his functions and fulfill his responsibilities more efficiently. It is from that standpoint that the security of tenure provision to assure judicial independence is to be viewed. It is an added guarantee that justices and judges can administer justice undeterred by any fear of reprisal or untoward consequence. Their judgments then are even more likely to be inspired solely by their knowledge of the law and the dictates of their conscience, free from the corrupting influence of base or unworthy motives. The independence of which they are assured is impressed with a significance transcending that of a purely personal right. As thus viewed, it is not solely for their welfare. The challenged legislation Thus subject d to the most rigorous scrutiny by this Tribunal, lest by lack of due care and circumspection, it allow the

47
erosion of that Ideal so firmly embedded in the national consciousness There is this farther thought to consider. independence in thought and action necessarily is rooted in one's mind and heart. As emphasized by former Chief Justice Paras in Ocampo v. Secretary of Justice, 105 there is no surer guarantee of judicial independence than the God-given character and fitness of those appointed to the Bench. The judges may be guaranteed a fixed tenure of office during good behavior, but if they are of such stuff as allows them to be subservient to one administration after another, or to cater to the wishes of one litigant after another, the independence of the judiciary will be nothing more than a myth or an empty Ideal. Our judges, we are confident, can be of the type of Lord Coke, regardless or in spite of the power of Congress we do not say unlimited but as herein exercised to reorganize inferior courts." 106 That is to recall one of the greatest Common Law jurists, who at the cost of his office made clear that he would not just blindly obey the King's order but "will do what becomes [him] as a judge." So it was pointed out in the first leading case stressing the independence of the judiciary, Borromeo v. Mariano, 107 The ponencia of Justice Malcolm Identified good judges with "men who have a mastery of the principles of law, who discharge their duties in accordance with law, who are permitted to perform the duties of the office undeterred by outside influence, and who are independent and self-respecting human units in a judicial system equal and coordinate to the other two departments of government." 108 There is no reason to assume that the failure of this suit to annul Batas Pambansa Blg. 129 would be attended with deleterious consequences to the administration of justice. It does not follow that the abolition in good faith of the existing inferior courts except the Sandiganbayan and the Court of Tax Appeals and the creation of new ones will result in a judiciary unable or unwilling to discharge with independence its solemn duty or one recreant to the trust reposed in it. Nor should there be any fear that less than good faith will attend the exercise be of the appointing power vested in the Executive. It cannot be denied that an independent and efficient judiciary is something to the credit of any administration. Well and truly has it been said that the fundamental principle of separation of powers assumes, and justifiably so, that the three departments are as one in their determination to pursue the Ideals and aspirations and to fulfilling the hopes of the sovereign people as expressed in the Constitution. There is wisdom as well as validity to this pronouncement of Justice Malcolm in Manila Electric Co. v. Pasay Transportation Company, 109 a decision promulgated almost half a century ago: "Just as the Supreme Court, as the guardian of constitutional rights, should not sanction usurpations by any other department or the government, so should it as strictly confine its own sphere of influence to the powers expressly or by implication conferred on it by the Organic Act." 110 To that basic postulate underlying our constitutional system, this Court remains committed.

WHEREFORE, the unconstitutionality of Batas Pambansa Blg. 129 not having been shown, this petition is dismissed. No costs. Makasiar and Escolin, JJ., concur. Concepcion, Jr., concur in the result.

Separate Opinions

BARREDO, J., concurring: I join the majority of my brethren in voting that the Judiciary Reorganization Act of 1980, Batas Pambansa Blg. 129, is not unconstitutional as a whole nor in any of its parts. The issue of unconstitutionality raised by petitioners relates particularly to Section 44 of the Act which reads as follows: SEC. 44. Transitory provisions. The provisions of this Act shall be immediately carried out in accordance with an Executive Order to be issued by the President. The Court of Appeals, the Courts of First Instance, the Circuit Criminal Courts, the Juvenile and Domestic Relations Courts, the Courts of Agrarian Relations, the City Courts, the Municipal Courts, and the Municipal Circuit Courts shall continue to function as presently constituted and organized, until the completion of the reorganization provided in this Act as declared by the President. Upon such declaration, the said courts shall be deemed automatically abolished and the incumbents thereof shall cease to hold office. The cases pending in the

48
old Courts shall e transferred to the appropriate Courts constituted pursuant to this Act, together with the pertinent functions, records, equipment,. property and the necessary personnel. The applicable appropriations shall likewise be transferred to the appropriate courts constituted pursuant to this Act, to be augmented as may be necessary from the funds for organizational changes as provided in Batas Pambansa Blg. 80. Said funding shall thereafter be included in the annual General Appropriations Act. It is contended by petitioners that the provision in the above section which mandates that "upon the declaration upon the President that the reorganization contemplated in the Act has been completed), the said courts (meaning the Court of Appeals and all other lower courts, except the Sandiganbayan and the Court of Tax Appeals) shall be deemed abolished and the incumbents thereof shall cease to hold office" trenches on all the constitutional safeguards and guarantees of the independence of the judiciary, such as the security of tenure of its members (Section 7, Article X of the Philippine Constitution of 1973), the prerogatives of the Supreme Court to administratively supervise all courts and the personnel thereof (Section 6, Id.) and principally, the power of the Supreme Court "to discipline judges of inferior courts and, by a vote of at least eight Members, order their dismissal. " (Section 7, Id.) On the other hand, respondents maintain that thru the above-quoted Section 44. the Batasan did nothing more than to exercise the authority conferred upon it be Section I of the same Article of the Constitution which provides that The Judicial power shall be rested in one Supreme Court and in such inferior courts as may be established by law." In other words, since all inferior courts are, constitutionally speaking, mere creatures of the law (of the legislature it follows that it is within the legislature's power to abolish or reorganize them even if in so doing, it might result in the cessation from office of the incumbents thereof before the expiration of their respective constitutionally fixed tenures. Respondents emphasize that the legislative power in this respect is broad and indeed plenary. Viewing the problem before Us from the above perspectives, it would appear that our task is either (1) to reconcile, on the one hand, the parliament's power of abolition and reorganization with, on the other, the security of tenure of members of the judiciary and the Supreme Court's authority to discipline and remove judges or (2) to declare that either the power of the Supreme Court or of the Batasan is more paramount than that of the other. I believe. however, that such a manner of looking at the issue that confronts Us only confuses and compounds the task We are called upon to perform. For how can there be a satisfactory and rational reconciliation of the pretended right of a judge to continue as such, when the position occupied by him no longer exists? To suggest, as some do, that the solution is for the court he is sitting in not to be deemed abolished or that he should in some way be allowed to continue to function as judge until his constitutional tenure expires is obviously impractical, if only because we would then have the absurd spectacle of a judiciary with old and new courts functioning under distinct set-ups, such as a district court continuing as such in a region where the other judges are regional judges or of judges exercising powers not purely judicial which is offensive to the Constitution. The other suggestion that the incumbent of the abolished court should be deemed appointed to the corresponding new court is even worse, since it would deprive the appointing authority, the president, of the power to make his own choices and would, furthermore, amount to an appointment by legislation which is a Constitutional anachronism. more on this point later . Inasmuch as pursuant to the analysis of the majority of the Members of this Court, in fact and in law, the structure of judicial system created by Batas Pambansa 129 is substantially different from that under the Judiciary Act of 1948, as amended, hence the courts now existing are actually being abolished, why do We have to indulge in any reconciliation or feel bound to determine whose power, that of the Batasang Pambansa or that of this Court, should be considered more imperious? It being conceded that the power to create or establish carries with it the power to abolish, and it is a legal axiom, or at least a pragmatic reality that the tenure of the holder of an office must of necessity end when his office no longer exists, as I see it, be have no alternative than to hold that petitioners' invocation of the independence of the judiciary principle of the Constitution is unavailing ill the cases at bar. It is as simple as that. I might hasten to add, in this connection, that to insist that what Batas Pambansa 129 is doing is just a renaming and not a substantial and actual modification or alteration of the present judicial structure or system assuming a close scrutiny might somehow support such a conclusion, is pure wishful thinking, it being explicitly and unequivocally provided in the section in question that said courts are deemed abolished" and further, as if to make it most unmistakably emphatic, that "the incumbents thereat shall cease to hold office." Dura les, sed les. As a matter of fact, I cannot conceive of a more emphatic way of manifesting and conveying the determined legislative intent about it.

49
Now, why am I yielding to the above reasoning and conclusion? Why don't I insist on championing the cause of the independence of the judiciary by maintaining that the constitutional safeguards thereof I have already enumerated earlier must be respected in any reorganization ordained by the parliament My answer is simple. Practically all the Members of the Court concede that what is contemplated is not only general reorganization but abolition in other words, not only a rearrangement or remodelling of the old structure but a total demolition thereof to be followed by the building of a new and different one. I am practically alone in contemplating a different view. True, even if I should appear as shouting in the wilderness, I would still make myself a hero in the eyes of man justices and judges, members of the bar and concerned discerning citizens, all lovers of the judicial independence, but understandably, I should not be, as I am not, disposed to play such a role virtually at the expense not only of my distinguished colleagues but of the Batasang Pambansa that framed the law and, most of all, the President who signed and, therefore, sanctioned the Act as it is, unless I am absolutely sure that my position is formidable, unassailable and beyond all possible contrary ratiocination, which I am not certain of, as I shall demonstrate anon.
To start with, the jurisprudence, here and abroad, touching on the question now before Us cannot be said to be clear and consistent, much less unshakeable and indubitably definite either way. None of the local cases 1 relied upon and discussed by the parties and by the Members of the Court during the deliberations, such as Borromeo, 2 Ocampo, 3Zandueta, 4 Brillo, 5 etc. can, to my mind, really serve as reliable pole stars that could lead me to certainty of correctness.

Of course, my instinct and passion for an independent judiciary are uncompromising and beyond diminution. Indeed, my initial reactions, publicly known, about Batas Pambansa 129 explaining academically its apparent tendency to invade the areas of authority of the Supreme Court, not to speak of its dangerously impairing the independence of the judiciary, must have, I imagine, created the impression that I would vote to declare the law unconstitutional. But, during the deliberations of the Court, the combined wisdom of my learned colleagues was something I could not discount or just brush aside. Pondering and thinking deeper about all relevant factors, I have come to the conviction that at least on this day and hour there are justifiable grounds to uphold the Act, if only to try how it will operate so that thereby the people may see that We are one with the President and the Batasan in taking what appear to be immediate steps needed to relieve the people from a fast spreading cancer in the judiciary of our country. Besides, the Philippines has somehow not yet returned to complete normalcy The improved national discipline so evident during the earlier days of martial law, has declined at a quite discernible degree. Different sectors of society are demanding urgent reforms in their respective field And about the most vehement and persistent, loud and clear, among their gripes, which as a matter of fact is common to all of them is that about the deterioration in the quality of performance of the judges manning our courts and the slow and dragging pace of pending judicial proceedings. Strictly speaking, this is, to be sure, something that may not necessarily be related to lack of independence of the judiciary. It has more to do with the ineptness and/or corruption among and corruptibility of the men sitting in the courts in some parts of the country And what is worse, while in the communities concerned the malady is known to factually exist and is actually graver and widespread, very few, if any individuals or even associations and organized groups, truly incensed and anxious to be of help, have the courage and possess the requisite legal evidence to come out and file the corresponding charges with the Supreme Court, And I am not vet referring to similar situations that are not quite openly known but nevertheless just as deleterious. On the other hand, if all these intolerable instances should actually be formally brought to the Supreme Court, it would be humanly impossible for the Court to dispose of them with desirable dispatch, what with the thousands of other cases it has to attend to and the rather cumbersome strict requirements of procedural due process it has to observe in each and every such administrative case all of which are time consulting. Verily, under the foregoing circumstances, it may be said that there is justification for the patience of the people about the possibility of early eradication of this disease or evil in our judiciary pictured above to be nearing the breaking point. Withal, we must bear in mind that judicial reorganization becomes urgent and inevitable not alone because of structural inadequacies of the system or of the cumbersomeness and technicality-peppered and dragging procedural rules in force, but also when it becomes evident that a good number of those occupying positions in the judiciary, make a mockery of justice and take advantage of their office for selfish personal ends and yet, as already explained, those in authority cannot expeditiously cope with the situation under existing laws and rules. It is my personal assessment of the present situation in our judiciary that its reorganization has to be of necessity two-pronged, as I have just indicated, for the most Ideal judicial system with the most perfect procedural rules cannot satisfy the people and the interests of justice unless the men who hold positions therein possess the character, competence and sense of loyalty that can guarantee their devotion to duty and absolute impartiality, nay, impregnability to an temptations of graft and corruption, including the usual

50
importunings and the fearsome albeit improper pressures of the powers that be. I am certain that the Filipino people feel happy that Batas Pambansa 129 encompasses both of these objectives, which indeed are aligned with the foundation of the principle of independence of the judiciary. The above premises considered, I have decided to tackle our problem from the viewpoint of the unusual situation in which our judiciary is presently perilously situated. Needless to say, to all of us, the Members of the Court, the constitutional guarantees of security of tenure and removal only by the Supreme Court, among others, against impairment of the independence of the judiciary, which is one of the bedrock's and, therefore, of the essence in any "democracy under a regime of justice, peace, liberty and equality (Preamble of the 1973 Constitution), are priceless and should be defended, most of all by the Supreme Court, with all the wisdom and courage God has individually endowed to each of Us. Withal, we are all conscious of the fact that those safeguards have never been intended to place the person of the judge in a singular position of privilege and untouchability, but rather, that they are essentially part and parcel of what is required of an independent judiciary where judges can decide cases and do justice to everyone before them ruat caelum. However, We find Ourselves face to face with a situation, in our judiciary which is of emergency proportions and to insist on rationalizing how those guarantees should be enforced under such a circumstance seem to be difficult, aside from being controversial. And so, in a real sense, We have to make a choice between adhering to the strictly legalistic reasoning pursued by petitioners, on the one hand, and the broader and more practical approach, which as I have said is within the spirit at least of the Constitution. My concept of the Constitution is that it is not just a cluster of high sounding verbiages spelling purely Idealism and nobility in the recognition of human dignity, protection of individual liberties and providing security and promotion of the general welfare under a government of laws. With all emphasis and vehemence, I say that the fundamental law of the land is a living instrument which translates and adapts itself to the demands of obtaining circumstances. It is written for all seasons, except for very unusual instances that human ratiocination cannot justify to be contemplated by its language even if read in its broadest sense and in the most liberal way. Verily, it is paramount and supreme in peace and in war, but even in peace grave critical situations arise demanding recourse to extraordinary solutions. Paraphrasing the Spanish adage, "Grandes males, grandes remedios ", such in ordinary problems justify exceptional remedies. And so, history records that in the face of grave crises and emergencies, the most constitutionally Idealistic countries have, at one time or another, under the pressure of pragmatic considerations, adopted corresponding realistic measures, which perilously tether along the periphery of their Charters, to the extent of creating impressions, of course erroneous, that the same had been transgressed, although in truth their integrity and imperiousness remained undiminished and unimpaired. The Philippines has but recently had its own experience of such constitutional approach. When martial law was proclaimed here in 1972, there were those who vociferously shouted not only that the President had acted arbitrarily and without the - required factual bases contemplated in the Commander-in-Chief clause of the 1935 Constitution, but more, that he had gone beyond the traditional and universally recognized intent of said clause by utilizing his martial law powers not only to maintain peace and tranquility and preserve and defend the integrity and security of the state but to establish a New Society The critics contended that martial law is only for national security, not for the imposition of national discipline under a New Society. Due to its relevancy to Our present discussion, it is well for everyone to bear in mind that in this jurisdiction, this concept of martial law has already been upheld several times by this Court. 1, for one, accepted such a construction because I firmly believe that to impose martial law for the sole end of suppressing an insurrection or rebellion without coincidentally taking corresponding measures to eradicate the root causes of the uprising is utter folly, for the country would still continue to lay open to its recurrence. I have made the foregoing discourse, for it is fundamentally in the fight of this Court's doctrines about the imposition of martial law as I have stated that I prefer to base this concurrence. To put it differently, if indeed there could be some doubt as to the correctness of this Court's judgment that Batas Pambansa 129 is not unconstitutional, particularly its Section 44, I am convinced that the critical situation of our judiciary today calls for solutions that may not in the eyes of some conform strictly with the letter of the Constitution but indubitably justified by its spirit and intent. As 1 have earlier indicated, the Charter is not just a construction of words to whose literal iron-clad meanings we must feel hidebound without regard to every Constitution's desirable inherent nature of adjustability and adaptability to prevailing situations so that the spirit and fundamental intent and objectives of the framers may remain alive. Batas Pambansa 129 is one such adaptation that comes handy for the attainment of the transcendental objectives it seeks to pursue While, to be sure, it has the effect of

51
factually easing out some justices and judges before the end of their respective constitutional tenure sans the usual administrative investigation, the desirable end is achieved thru means that, in the light of the prevailing conditions, is constitutionally permissible. Before closing, it may not be amiss for me to point out that Batas Pambansa Blg. 129, aside from what has been discussed about its effect on the guarantees of judicial independence, also preempts, in some of its provisions, the primary rule-making power of the Supreme Court in respect to procedure, practice and evidence. With the pardon of my colleagues, I would just like to say that the Court should not decry this development too much. After all, the legislature is expressly empowered by the Charter to do so, (Section 5(5), Article X of the Constitution of 1973) so much so, that I doubt if the Court has any authority to alter or modify any rule the Batasang Pambansa enunciates. Truth to tell, as Chairman of the Committee on the Revision of the Rules of Court, for one reason or another, principally the lack of a clear consensus as to what some of my colleagues consider very radical proposals voiced by me or my committee, We have regrettably procrastinated long enough in making our procedural rules more practical and more conducive to speedier disposal and termination of controversies by dealing more with substantial justice. So also have We, it must be confessed, failed to come up to expectations of the framers of the Constitution in our ways of disposing of administrative complaints against erring and misconducting judges. Of course, We can excuse Ourselves with the explanation that not only are We overloaded with work beyond human capability of its being performed expeditiously, but that the strict requisites of due process which are time consuming have precluded Us from being more expeditious and speedy. I feel I must say all of these, because if the above-discussed circumstances have not combined to create a very critical situation in our judiciary that is making the people lose its faith and confidence in the administration of justice by the existing courts, perhaps the Court could look with more sympathy at the stand of petitioners. I want all the sundry to know, however, that notwithstanding this decision, the independence of the judiciary in the Philippines is far from being insubstantial, much less meaningless and dead. Batas Pambansa 129 has precisely opened our eyes to how, despite doubts and misgivings, the Constitution can be so construed as to make it possible for those in authority to answer the clamor of the people for an upright judiciary and overcome constitutional roadblocks more apparent than real. To those justices, judges, members of the bar and concerned citizens whose eyes may be dimming with tears of disappointment and disenchantment because of the stand I have chosen to adopt in these cases, may I try to assuage them by joining their fervent prayers that some other day, hopefully in the near future, Divine Providence may dictate to another constitutional convention to write the guarantees of judicial independence with ink of deeper hue and words that are definite, clear, unambiguous and unequivocal, in drawing the line of demarcation between the Parliament and the Judiciary in the manner that in His Infinite wisdom would most promote genuine and impartial justice for our people, free, not only from graft, corruption, ineptness and incompetence but even from the tentacles of interference and insiduous influence of the political powers that be. Presently, I am constrained from going along with any other view than that the Constitution allows abolition of existing courts even if the effect has to be the elimination of any incumbent judge and the consequent cutting of his constitutional tenure of office. I cannot close this concurrence without referring to the apprehensions in some quarters about the choice that will ultimately be made of those who will be eased out of the judiciary in the course of the implementation of Batas Pambansa 129. By this decision, the Court has in factual effect albeit not in constitutional conception yielded generally to the Batasang Pambansa, and more specifically to the President, its own constitutionally conferred power of removal of judges. Section 44 of the Batasan's Act declares that all of them shall be deemed to have ceased to hold office, leaving it to the President to appoint those whom he may see fit to occupy the new courts. Thus, those who will not be appointed can be considered as "ceasing to hold their respective offices", or, as others would say they would be in fact removed. How the President will make his choices is beyond Our power to control. But even if some may be eased out even without being duly informed of the reason therefor, much less being given the opportunity to be heard the past actuations of the President on all matters of deep public interest shouted serve as sufficient assurance that when lie ultimately acts, he will faithfully adhere to his solemn oath "to do justice to every man hence, lie will equip himself first with the fullest reliable information before acts. This is not only my individual faith founded on my personal acquaintance with the character and sterling qualities of President Ferdinand E. Marcos. I dare say this is the faith of the nation in a man who has led it successfully through crises and emergencies, with justice to all, with malice towards none. I am certain, the President will

52
deal with each and every individual to be affected by this reorganization with the best light that God will give him every moment he acts in each individual case as it comes for his decision

AQUINO, J., concurring: I concur in the result. The petitioners filed this petition for declaratory relief and prohibition "to declare the Judiciary Reorganization Act of 1980 (Batas Pambansa Blg. 129) unconstitutional". The petition should have been dismissed outright because this Court has no jurisdiction to grant declaratory relief and prohibition is not the proper remedy to test the constitutionality of the law. the petition is premature. No jurisdictional question is involved. There is no justiciable controversy wherein the constitutionality of the said law is in issue. It is presumed to be constitutional. The lawmaking body before enacting it looked into the constitutional angle. Seven of the eight petitioners are practising lawyers. They have no personality to assail the constitutionality of the said law even as taxpayers. The eighth petitioner, Gualberto J. de la Llana, a city judge (who in 1977 filed a petition for declaratory relief assailing Presidential Decree No. 1229, which called for a referendum. De la Llana his Comelec, 80 SCRA 525), has no cause of action for prohibition. He is not being removed from his position. The Judiciary Reorganization Law was enacted in utmost good faith and not "to cloak an unconstitutional and evil purpose As ably expounded by the Chief Justice, in enacting the said law, the lawmaking body acted within the scope of its constitutional powers and prerogatives.

GUERRERO, J., concurring: I concur with my distinguished and learned colleagues in upholding the constitutionality of the Judiciary Reorganization Act of 1980. For the record, however, I would like to state my personal convictions and observations on this case, a veritable landmark case, for whatever they may be worth.
The legal basis of the Court's opinion rendered by our esteemed Chief Justice having been exhaustively discussed and decisively justified by him, a highly-respected expert and authority on constitutional law, it would be an exercise in duplication to reiterate the same cases and precedents. I am then constrained to approach the problem quite differently, not through the classic methods of philosophy, history and tradition, but following what the well-known jurist, Dean Pound, said that "the most significant advance in the modern science of law is the change from the analytical to the functional attitude." 1 And in pursuing this direct ion, I must also reckon with and rely on the ruling that "another guide to the meaning of a statute is found in the evil which it is designed to remedy, and for this the court properly looks at contemporaneous events, the situation as it existed, and as it was pressed upon the attention of the legislative body." 2 I have no doubt in my mind that the institutional reforms and changes envisioned by the law are clearly conducive to the promotion of national interests. The objectives of the legislation namely: (a) An institutional restructuring by the creation of an Intermediate Appellate Court, thirteen (I 3) Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts: (b) A reappointment of jurisdiction geared towards greater efficiency: (c) A simplification of procedures and (d) The abolition of the inferior courts created by the Judiciary Act of 1948 and other statutes, as approved by the Congress of the Philippines 3 are undoubtedly intended to improve the regime of justice and thereby enhance public good and order. Indeed, the purpose of the Act as further stated in the Explanatory Note, which is "to embody reforms in the structure, organization and

53
composition of the Judiciary, with the aim of improving the administration of justice, of decongesting judicial dockets, and coping with the more complex problems on the present and forseeable future cannot but "promote the welfare of society, since that is the final cause of law. 4 Hence, from the standpoint of The general utility and functional value of the Judiciary Reorganization Act, there should be no difficulty, doubt or disbelief in its legality and constitutionality. That there are ills and evils plaguing the judicial system is undeniable. The notorious and scandalous congestion of court dockets as too well-known to be ignored as are the causes which create and produce such anomaly. Evident is the need to look for devices and measures that are more practical, workable and economical. 5 From the figures alone (301,497 pending cases in 1976; 351, 943 in 1977; 404, 686 in 1978; 426, 911 in 1979; 441, 332 in 1980; and 450, 063 as of February 3, 1982) 6 the congested character of court dockets rising year after year is staggering and enormous, looming like a legal monster.

But greater than the need to dispense justice speedily and promptly is the necessity to have Justices and Judges who are fair and impartial, honest and incorruptible, competent and efficient. The general clamor that the prestige of the Judiciary today has deteriorated and degenerated to the lowest ebb in public estimation is not without factual basis. Records in the Supreme Court attest to the unfitness and incompetence, corruption and immorality of many dispensers of justice. According to the compiled data, the total number of Justices and Judges against whom administrative charges have been filed for various offenses, misconduct, venalities and other irregularities reaches 322. Of this total, 8 are Justices of the Court of Appeals, 119 CFI Judges, 2 Criminal Circuit Judges, 8 CAR Judges, 1 Juvenile & Domestic Relations Court Judge, 38 City Judges, and 146 Municipal Judges. The Supreme Court has found 102 of them guilty and punished them with either suspension, admonition, reprimand or fine. The number includes 1 CA Justice, 35 CFI Judges, 1 CCC Judge, 3 CAR Judges, 1 JDRC Judge, 9 City Judges and53 Municipal Judges. Seventeen (17) Judges have been ordered dismissed and separated from the service. And these are 3 CFI, 1 CAR, 1 City Judge and 12 Municipal Judges. Going over these administrative proceedings, it took an average of two-year period from the filing of the charge to the dismissal of the respondent. In one case, the proceedings were terminated after seven years. How long the pending administrative cases will be disposed of, only time will tell as an increasing number of administrative cases are being filed by victims of judicial misconduct, abuse and arbitrariness.
Excepting those who have been punished and dismissed from the service, there are many who have been castigated and censured in final judgments of the Supreme Court upon appeal or review of the decisions, orders and other acts of the respondent courts, Justices and Judges. To cite a few cases, Our decisions have categorically pronounced respondents' actuations, thus: "deplorable, giving no credit to the Judiciary" 7; applicable rules. The whole proceedings looked no more than a pre-arranged compromise between the accused and the Judge to flaunt the law and every norm of propriety and procedure" 8; "there was a deliberate failure of respondent Judge to respect what is so clearly provided in the Rules of Court" 9; "It is unfortunate that respondent Judge failed to acquaint himself with, 01' misinterpreted, those controlling provisions and doctrines" 10; "The failure of the respondent Municipal Judge to yield obedience to authoritative decisions of the Supreme Court and of respondent Court of First Instance Judge and his deplorable insistence on procedural technicalities was called down in L49828, July 25, 1981. For peremptorily dismissing the third party complaint on the ground that the motion to dismiss was 'welltaken' and respondent Judge did not elaborate, the Court remarked: "May his tribe vanish." 11 In one case, We noted "There is here so something unusual, but far from palliating the gravity of the error incurred, it merely exacerbated it. ... it did render the due process requirement nugatory, for instead of a fair and impartial trial, there was an Idle form, a useless ceremony." 12

It is dishonorable enough to be publicly and officially rebuked but to allow these Judges and their ilk to remain and continue to preside in their courtrooms is a disgrace to the Judiciary. It is to be deplored that the Supreme Court has not found time to exercise its power and authority in the premises, for no charges or proceedings have been instituted against them. We have a list of these crooked Judges whose actuations have been found to be patiently wrong and manifestly indefeasible. There ought to be no objection or compunction in weeding them out from the service. If they are not booted out now, it will take from here to eternity to clean this Augean stable.

54
Candidly, one reason for writing this concurring opinion is to call attention to these evils, abuses and wrongs which are surreptitiously but surely destroying the trust and faith of the people in the integrity of the entire Judiciary. Some members of the Court felt that these revelations would be like washing dirty linen in public. But these facts are of public and official record nay court cases, and sooner or later, Truth will come out.
In the light of these known evils and infirmities of the judiciary system, it would be absurd and unreasonable to claim that the legislators did not act upon them in good faith and honesty of purpose and with legitimate ends. It is presumed that official duty has been regularly performed. 13 The presumption of regularity is not confined to the acts of the individual officers but also applies to the acts of boards, such as administrative board or bodies, and to acts of legislative bodies. 14Good faith is always to be presumed in the absence of proof to the contrary, of which there is none in the case at bar. It could not be otherwise if We are to accord as We must, full faith and credit to the lawmakers' deep sense of public service and the judicious exercise of their high office as the duly-elected representatives of the people. It is conceded that the abolition of an office is legal if attendant with good faith. 15 The question of good faith then is the crux of the conflict at bar. Good faith in the enactment of the law does not refer to the wisdom of the measure, the propriety of the Act, or to its expediency. The questions raised by petitioners and amicus curiae for their cause, viz: Why abolish all the courts Why legislate out the judges Why not amend the Rules of Court only Is abolition of all courts the proper remedy to weed out corrupt and misfits in our Judiciary? may not be inquired into by Us. "It is not the province of the courts to supervise legislation and keep it within the bounds of propriety and common sense. That is primarily and exclusively a legislative concern." 16 The Courts "are not supposed to override legitimate policy and ... never inquire into the wisdom of the law." 17 Chief Justice Fernando who penned the Morfe decision, writes that while "(i)t is thus settled, to paraphrase Chief Justice Concepcion in Gonzales v. Commission on Elections, that only congressional power or competence, not the wisdom of the action taken, may be the basis for declaring a statute invalid," 18 he adds that it is "useful to recall what was so clearly stated by Laurel that 'the Judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government.'" 19 In any case, petitioners have not shown an iota of proof of bad faith. There is no factual foundation of bad faith on record. And I do not consider the statement in the sponsorship speech for Cabinet Bill No. 42 of Minister of Justice Ricardo J. Puno that the Bill would be a more efficient vehicle of "eliminating incompetent and unfit Judges as indicative of impermissible legislative motive. 20

It may be true that while the remedy or solution formulated by the legislation will eradicate hopefully or at least minimize the evils and ills that infect and pester the judicial body, it will result in the actual removal of the Justices of the Court of Appeals and Judges of the lower courts. It is also true that whether it is termed abolition of office or removal from office, the end-result is the same termination of the services of these incumbents. Indeed, the law may be harsh, but that is the law.Dura lex sed lex.
The Justices and Judges directly affected by the law, being lawyers, should know or are expected to know the nature and concept of a public office. It is created for the purpose of effecting the ends for which government has been instituted, which are for the common good, and not the profit, honor or private interest of any one man, family or class of men. In our form of government, it is fundamental that public offices are public trust, and that the person to be appointed should be selected solely with a view to the public welfare. 21 In the last analysis, a public office is a privilege in the gift of the State. 22 There is no such thing as a vested interest or an estate in an office, or even an absolute right to hold office. Excepting constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office or its salary. When an office is created by the Constitution, it cannot be abolished by the legislature, but when created by the State under the authority of the Constitution, it may be abolished by statute and the incumbent deprived of his office. 23 Acceptance of a judicial appointment must be deemed as adherence to the rule that "when the court is abolished, any unexpired term is abolished also. The Judge of such a court takes office with that encumbrance and knowledge." 24 "The Judge's right to his full term and his full salary are not dependent alone upon his good conduct, but also upon the contingency that the legislature may for the public good, in ordaining and establishing the courts, from time to time consider his office unnecessary and abolish it." 25 The removal from office of the incumbent then is merely incidental to the valid act of abolition of the office as demanded by the superior and paramount interest of the people. The bad and the crooked Judges must be removed. The good and the straight, sober Judges should be reappointed but that is the sole power and prerogative of the President who, I am certain, will act according to the best interest of the nation and in accordance with his solemn oath of office "to preserve and defend its Constitution, execute its laws, do justice to everyone ... " There and then the proper balance between the desire to preserve private interest and the desideratum of promoting the public good shall have been struck. 26

55
The Supreme Court has been called the conscience of the Constitution. It may be the last bulwark of constitutional government. 27 It Must, however, be remembered "that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as courts." 28 The responsibility of upholding the Constitution rests not on the courts alone but on the legislatures as well. It adheres, therefore, to the well-settled principle that "all reasonable doubts should be resolved in favor of the constitutionality of a statute" for which reason it will not set aside a law as violative of the Constitution "except in a clear case." 29

Finally, I view the controversy presented to Us as a conflict of opinions on judicial independence, whether impaired or strengthened by the law; on reorganization of the courts, whether abolition of office or removal therefrom, and on delegation of legislative power, whether authorized or unauthorized. Without detracting from the merits, the force and brilliance of their advocacies based on logic, history and precedents, I choose to stand on the social justification and the functional utility of the law to uphold its constitutionality. In the light of contemporaneous events from which the New Republic emerged and evolved new Ideals of national growth and development, particularly in law and government, a kind or form of judicial activism, perhaps similar to it, is necessary to justify as the ratio decidendi of Our judgment. This is the time and the moment to perform a constitutional duty to affix my imprimatur and affirmance to the law, hopefully an act of proper judicial statesmanship.

ABAD SANTOS, J., concurring: I agree with the learned Chief Justice of the Philippines that Batas Pambansa Blg. 129 is not unconstitutional. Unlike Oscar Wilde, I choose not to yield to temptation by embellishing my concurrence lest I be accrued of bringing coal to Newcastle. Accordingly, I will simply vote to dismiss the petition However, I cannot agree with the Chief Justice when he says: ... In the implementation of the assailed legislation, therefore it should be in accordance with accepted principles of constitutional construction that as far as incumbent justices and judges are concerned, this Court be consulted and that its view be accorded the fullest consideration. There would be no plausibility then to the allegation that there is an unconstitutional taint to the challenged Act. Moreover, such a construction would be in accordance with the basic principle that in the choice of alternatives between one which would save and another which would invalidate a statute, the former is to be preferred. It has already been ruled that the statute does not suffer from any constitutional infirmity because the abolition of certain judicial offices was done in good faith. This being the case, I believe that the Executive is entitled to exercise its constitutional power to fill the newly created judicial positions without any obligation to consult with this Court and to accord its views the fullest consideration. To require consultation will constitute an invasion of executive territory which can be resented and even repelled. The implicit suggestion that there could be an unconstitutional implementation of the questioned legislation is not congruent with the basic conclusion that it is not unconstitutional.

DE CASTRO, J., concurring: I concur in the declaration that the law is not unconstitutional. May I, however, submit this separate opinion more to avoid being misunderstood by my brethren in the judiciary as not feeling for them as much concern as I should for their security of tenure which is raised as the main argument against the constitutionality of the law, than by way of giving added force or support to the main opinion so well-written by Our learned Chief Justice in his usual scholarly fashion. I, therefore, limit myself to a discussion that the assailed statue is not unconstitutional without having to suggest how it may be implemented in order that it could stand the most rigid test of constitutionality, for in that area, what is involved is purely an executive act of the President in whose wisdom, patriotism

56
and sense of justice We should trust in how he would fulfill his sworn duties to see that the laws are faithfully executed and to do justice to every man. Moreover, while I also concur in the dismissal of the petition, I do so on the additional ground that petitioners have not fulfilled all the requisites for the exercise by this Court of its power of judicial inquiry the power to declare a law unconstitutional. I
The creation and organization of courts inferior to the Supreme Court is a constitutional prerogative of the legislature. This prerogative is plenary and necessarily implies the power to reorganize said courts, and in the process, abolish them to give way to new or substantially different ones. To contend otherwise would be to forget a basic doctrine of constitutional law that no irrepealable laws shall be passed. 1

The power to create courts and organize them is necessarily the primary authority from which would thereafter arise the security of tenure of those appointed to perform the functions of said courts. in the natural order of things, therefore, since the occasion to speak of security of tenure of judges arises only after the courts have first been brought into being, the right to security of tenure takes a secondary position to the basic and primary power of creating the courts to provide for a fair and strong judicial system. If the legislature, in the exercise of its authority, deems it wise and urgent to provide for a new set of courts, and in doing so, it feels the abolition of the old courts would conduce more to its objective of improving the judiciary and raising its standard, the matter involved is one of policy and wisdom into which the courts, not even the Supreme Court, cannot inquire, much less interfere with. By this secondary position it has to the primary power of the legislature to create courts, the security of tenure given to the incumbents should not be a legal impediment to the exercise of that basic power of creating the statutory courts which, by necessary implication, includes the power to abolish them in order to create new ones. This primary legislative power is a continuing one, and the resultant right of security of tenure of those appointed to said courts could not bring about the exhaustion of that power. Unquestionably, the legislature can repeal its own laws, and that power can never be exhausted without, as a consequence, violating a fundamental precept of constitutional and representative government that no irrepealable laws shall be passed. If the creation of courts is a legislative prerogative their abolition is, therefore, a matter of legislative intent. it involves the exercise of legislative power, an act of legislation which generally concerns policy in the formation of which the courts have no say Initially, when the legislature creates the courts, it suffers from no limitation arising from the necessity or respecting the security of tenure of judges who are not yea there. This inherent character of fullness and plenitude of the power to create and abolish courts does not change when that same power is once more exercised thereafter, as the need therefor is felt. Which only goes to show that when done in good faith and motivated solely by the good and the wellbeing of the people, the exercise of the power is not meant to be restricted, curtailed, much less exhausted by the socalled judicial security of tenure. The passage of the Judiciary Reorganization Act of 1980 is no more than the exercise of the power vested by the Constitution on the legislative body of the Republic as described above. That power carries with it the duty and responsibility of providing the people with the most effective and efficient system of administration of justice. This is by far of more imperative and transcedental importance than the security of tenure of judges which, admittedly, is one of the factors that would conduce to independence of the judiciary but first of all, a good, efficient and effective judiciary. A judiciary wanting in these basic qualities does not deserve the independence that is meant only for a judiciary that can serve best the interest and welfare of the people which is the most primordial and paramount consideration, not a judiciary in which the people's faith has been eroded, a condition which the security of tenure, in some instances, may even be contributory. In enacting the Judiciary Reorganization Act of 1980, the legislature is presumed to have been motivated by no other objective than to provide the people the kind of judicial machinery that would best serve their interest and welfare, in its belief that the present machinery is falling short of that measure of public service. It should, likewise, be presumed that it has been led to this low estimate of the utility and effectiveness of the present set-up of the judiciary after informing itself, with the facilities at its command, such as the power of legislative investigation, of the actual condition of the courts, particularly as to whether they continue to enjoy the trust, faith and confidence of the public, and what the cause or causes are of their erosion, if not loss, as is the keenly perceptible feeling of the people in general. Responsibility for this

57
more or less extensive slowdown of the delivery of judicial service can be laid on no other than either of the two components of a court the procedural laws or rules that govern the workings of the courts, or the persons executing or applying them or both. When two interests conflict as what had given rise to the present controversy the duty of the legislature to provide society with a fair, efficient and effective judicial system, on one hand, and the right of judges to security of tenure, on the other, the latter must of necessity yield to the former. One involves public welfare and interest more directly and on a greater magnitude than the right of security of tenure of the judges which is, as is easily discernible, more of a personal benefit to just a few, as indeed only the judge affected could seek judicial redress of what he conceives to be its violation. Herein lies the propriety of the exercise of "police power" of the State, if this concept which underlies even the Constitution, has to be invoked as a constitutional justification of the passage of the Act in question. That is, if a conflict between the primary power of the legislature to create courts, and mere consequential benefit accorded to judges and justices after the creation of the courts is indeed perceivable, which the writer fails to see, or, at least, would disappear upon a reconciliation of the two apparently conflicting interests which, from the above disquisition is not hard to find. It is, without doubt, in the essence of the exercise of police power that a right assertable by individuals may be infringed in the greater interest of the public good and general welfare. This is demonstrated in how the rights and freedoms enumerated in the Bill of Rights enjoyable by The entire people, not just by a handful in comparison, are made subject to the lawful exercise of the police power of the State. Viewed, therefore, from the above-mentioned perspective, the general revamp of the judiciary involving both its components the court as an office or institution, and the judges and justices that man them should not find any legal obstacle in the security of tenure of judges. This security, after all, is no more than as provided for all other officials and employees in the civil service of the government in Section 3, Article XII-B of the Constitution which provides: No officer or employees in the civil service shall be suspended or dismissed except for cause as provided by law.
The provision of Article XVII, Section 10 of the Constitution gives to judicial officials no more than a guarantee that their retirement age as fixed in the Constitution shall not be alterable at mere legislative pleasure. The equivalent provision in the 1935 Constitution was inserted for the first time because the retirement age before then was provided merely by statute not by the Constitution. If it comes to their removal or suspension, what gives them constitutional protection is the aforequoted provision which does not contemplate abolition of office when done in good faith, for removal implies the existence of the office, not when it is abolished. Admittedly, as has been held, abolition of office for no reason related to public welfare or for the good of the service, let alone when done in bad faith, amounts to an unlawful removal. 2 The abolition of the courts as declared in the Act as a result of a reorganization of the judiciary, as the Title of the law curtly but announces, can by no means, from any viewpoint, be so branded. And whether by said reorganization, the present would be deemed abolished, as the law expresses such an unmistakable intent, the matter is one for the sole and exclusive determination of the legislature. It rests entirely on its discretion whether by the nature and extent of the changes it has introduced, it has done enough to consider them abolished. To give the Supreme Court the power to determine the extent or nature of the changes as to their structure, distribution and jurisdiction, before the clear intent to abolish them, or to declare them so abolished, is given effect, would be to allow undue interference in the function of legislation. This would be contrary to the primary duty of courts precisely to give effect to the legislative intent as expressed in the law or as my be discovered therefrom.

From the above observation, it would be futile to insist that the present courts would not effectively be abolished by the Act in question. it might be to arrogate power for Us to say that the changes the law brings to the present judicial system, do not suffice for this Court to give effect to the clear intent of the legislative body. Where would the agrarian courts, the circuit criminal courts, the JDRC's be in the judicial structure as envisioned by the law? Are they not abolished by merger with the regional trial courts, which by such merger, and by the other changes introduced by the law, would make said courts different from the present Courts of First Instance which, as a consequence, may then be considered abolished Integrated as the present courts are supposed to be, changes somewhere in the judicial machinery would necessarily affect the entire system. The fact that the Supreme Court may specially assign courts to function as the special courts just mentioned, does not mean that the changes wrought are only superficial or "cosmetic" as this term has been used so often in the oral argument. Without the new law, these courts will remain fixed and permanent where they are at present. Yet in the course

58
of time, the need for their independent existence may disappear, or that by changed conditions, where they are needed at present at a certain place, the need for them may be somewhere else in later years, if maximum benefit at the least expense is to be achieved, as always should be a most desirable goal and objective of government. Demonstrably then, the abolition of the courts is a matter of legislative intent into which no judicial inquiry is proper, except perhaps if they intent is so palpably tainted with constitutional repugnancy, which is not so in the instant case. We have, therefore, no occasion, as earlier intimated, to speak of removal of judges when the reorganization of the judiciary would result in the abolition of the courts other than the Supreme Court and the Court of Tax Appeals. Hence, the provision of the Constitution giving to the Supreme Court power to dismiss a judge by a vote of eight justices does not come into the vortex of the instant controversy. Its possible violation by the assailed statute cannot happen, and may, therefore, not constitute an argument against the constitutionality of the law.
Former Justice Barrera, in a speech before the Philippine Bar Association, 3 impliedly indorsed the judicial revamp when he enumerated the qualities of a good judge that the appointing power should consider in making new appointments to the judiciary upon its reorganization pursuant to the questioned Act. The words of the eminent jurist may well reflect the favorable reaction of the public in general to what the Act aim to achieve in the name of good and clean government. The present judicial incumbents, who have not in any way, by their acts and behavior while in office, tarnished the good image that the judiciary should have, therefore, have no cause for apprehension that what they are entitled to under the Constitution by way of security of tenure wig be denied them, considering the publicly known aim and purpose of the massive judicial revamp, specially as cherished with deep concern by the President who initiated the move when he created the Judiciary Reorganization Committee to recommend needed and appropriate judicial reforms.

If the only obstacle to a verdict in favor of constitutionality of the law is its possible effect of impairing the security of tenure of the incumbents, We may have the following facts to consider: 1. Under the 1973 Constitution all incumbent judges and justices may continue in office until replaced or reappointed by the President. As to those judicial officials, no security of tenure, in the traditional concept, attaches to their incumbency which is, in a real sense, only a holdover tenure. How the President has exercised this immense power with admirable restraint should serve as the strongest guarantee of how justice and fairness will be his sole guide in implementing the law. 2. As to the rest of the incumbents, they are all appointees of Our present President, and he should feel concerned more than anyone else to protect whatever rights they may rightfully claim to maintain their official standing and integrity. They need have no fear of being ignored for no reason at all, much less for mere spirit of vindictiveness or lack of nobility of heart. From the foregoing, it would become apparent that only in the implementation of the law may there possibly be a taint of constitutional repugnancy as when a judge of acknowledged honesty, industry and competence is separated, because an act of arbitrariness would thereby be committed, but the abolition of the courts as decreed by the law is not by itself or per se unconstitutional. Consequently, the law, the result of serious and concerned study by a highly competent committee, deserves to be given a chance to prove its worth in the way of improving the judiciary. If in its implementation, any one, if at all, feels aggrieved, he can always seek judicial redress, if he can make out a case of violation of his right of security of tenure with uncontrovertible clarity, as when the separation is very arbitrary in the peculiar circumstances of his case, for an act of arbitrariness, under any constitution, is unpardonable. This petition should also be dismissed for being premature, as is the stand of Justice Aquino. The petition asks this Court to exercise its power of judicial inquiry, the power to declare a law unconstitutional when it conflicts with the fundamental law (People vs. Vera, 65 Phil. 56). This power has well-defined limits, for it can be exercised only when the following requisites are present, to wit: (1) There must be an actual case or controversy; (2) The question of constitutionality must be raised by the proper party; (3) He should do so at the earliest opportunity, and (4) The determination of the constitutionality of the statute must be necessary to a final determination of the case. I am of the opinion that the petition does not present an actual controversy nor was it filed by the proper parties.

59
The main ground for which the constitutionality of the Judiciary Reorganization Act of 1980 is assailed is that it is violative of the security of tenure of justices and judges. The only persons who could raise the question of constitutionality of the law are, therefore, the actual incumbents of the courts who would be separated from the service upon the abolition of the courts affected by the law, on the theory as advanced by petitioners that their judicial security of tenure would be violated. Olongapo City Judge de la Llana, the only judge among the petitioners, has not been separated from the service. Nor is his separation already a certainty, for he may be appointed to the court equivalent to his present court, or even promoted to a higher court. Only when it has become certain that his tenure has been terminated will an actual controversy arise on his allegation of a fact that has become actual, not merely probable or hypothetical. The present petition may neither be allowed as a taxpayer suit. A taxpayer may bring an action to raise the question of constitutionality of a statute only when no one else can more appropriately bring the suit to defend a right exclusively belonging to him, and. therefore, would localize the actual injury to his person, and to no other. For a "proper party" to invoke the power of judicial inquiry, as one of the requisites in the exercise of such power, does not mean one having no better right, one more personalized, than what he has as a member of the public in general. With the incumbent judges undoubtedly being the ones under petitioners' theory, who would suffer direct and actual injury, they should exclude mere taxpayers who cannot be said to suffer as "direct" and "actual" an injury as the judges and justices by the enforcement of the assailed statute, from the right to bring the suit. The validity of the foregoing observation becomes more evident when We consider that only after the fate of the present incumbents is known, whether they have been actually separated or not, would the present courts be declared abolished. For the law clearly continues their existence until all the new courts have been filled up with new appointments, or at least such number as would be equal to the number of actual incumbents, and they are the very courts to which they may lay claim to the right to continue therein, so that the status of each and everyone of them has thereby been made certain. Only then, upon the actual abolition of the courts, may there possibly be a violation of the security of tenure, as contented, that would give rise to an "actual controversy" in which the 6 improper party" can be no other than the judges who feel aggrieved by their non- appointment to the new courts. It would, therefore, not be proper to declare the law void at this stage, before it has even been given a chance to prove its worth, as the legislature itself and an those who helped by their exhaustive and scholarly study, felt it to be an urgent necessity, and before any of the proper parties who could assail its constitutionality would know for a fact, certain and actual, not merely probable or hypothetical, that they have a right violated by what they could possibly contend to be an unconstitutional enforcement of the law, not by a law that is unconstitutional unto itself. I am, therefore, for giving the law a chance to be put into application so as not to douse great popular expectations for the courts to regain their highest level of efficiency had reputation for probity. Inevitably, this is to be so since only when the law is fully implemented will all the courts affected be declared abolished, undoubtedly to avoid an interregnum when the country is without any court, except the Supreme Court, the Court of Tax Appeals and the Sandigan. Only then will it be known whether an actual controversy would arise because any of the incumbents have been left out in the restructured judiciary. There would then be also a proper party to assail the constitutionality of the law, conformably to the conditions requisite for the exercise of the power of judicial inquiry which by their stringent character, together with the constitutional prescription of a comparatively higher vote to declare a law unconstitutional, reveal a salutary principle of government that a law should, by all reasonable intendment and feasible means, be saved from the doom of unconstitutionality, the rule corollary thereto being that if a law is susceptible to two interpretations, one of which would make it constitutional, that interpretation should be adopted that will not kill the law.
It is to adhere to the above principles that the submission is made herein, that while in the implementation of the law, constitutional repugnancy may not entirely be ruled out, a categorical ruling hereon not being necessary or desirable at the moment, the law itself is definitely not unconstitutional. 4 Any of the incumbent judges who feel injured after the law shall have been implemented has adequate remedy in law, with full relief as would be proper. But surely, the benefits envisioned by the law in the discharge of one of the basic duties of government to the people the administration of justice should not be sacrificed, as it would be, if the law is, as sought in the present petition, declared void right now, on the claim of a few of being allegedly denied a right, at best of doubtful character, for the claim would seem to rest on an unsupportable theory that they have a vested right to a public office.

60
Just one more point. The law in question is not self-executing in the sense that upon its effectivity, certain judges and justices cease to be so by direct action of the law. This is what distinguishes the Act in question from R.A. No. 1186 involved in the Ocampo case, 5 which by its direct action, no act of implementation being necessary, all the judges whose positions were abolished, automatically ceased as such. The Act in question, therefore, is not as exposed to the same vulnerability to constitutional attack as R.A. No. 1186 was. Yet by the operation of the Constitution with its wise provision on how a law may be declared unconstitutional, R.A. No. 1186 stood the test for it to be enforced to the fullness of its intent, which was, as in the law under consideration, Identified with public interest and general welfare, through a more efficient and effective judicial system as the Judiciary Reorganization Act of 1980 seeks to establish.

Hence, the constitutionality of the law should not be assailed, and the law itself, striken down, on the ground that some judges or justices may be removed or separated in violation of their security of tenure. The law does not directly operate with Chat effect. It is in how the law would be implemented that this feared eventuality may or may not occur. We would then be killing the law on a mere speculation if We do so at this stage. This would be an injudicious act done in reckless disregard of the safeguards built around a law to defend it when its constitutionality is attacked; first the presumption that a law is constitutional; second when a law is susceptible to two interpretations one that would make it constitutional, the other, unconstitutional, the former should be adopted; and third, the Constitution itself which ordains that a law may not be declared unconstitutional except on the vote of at least ten (10) members of the Supreme Court, more than what is required for an ordinary decision of the Court en banc. This is not to mention the stringent requisites for the exercise of the power of judicial inquiry as already adverted to, all designed to save the law from the dire fate of unconstitutionality. To the writer, the question before this Court is a simple matter of choosing between protecting some judges from possible separation, as the implementation of the law to achieve its primary purpose of improving the judiciary may have to result in, or serving the interest of the entire society through an honest, efficient and effective judiciary. For, it is unthinkable that what is for the good of the people as a whole could have been meant by the Constitution to be sacrificed for the sake of only the few. The greatest good for the greatest number is an unwritten rule, more firm and enduring than any of the postulates spread in our written Constitution. This, I might say, is the main theme of this separate opinion, otherwise expressed in the well-known and time-honored maxim "Salus populi establish suprema lex."

MELENCIO-HERRERA, J., concurring: There is unqualified adherence on my part to the dismissal of the Petition filed in this case. If I am writing this separate concurrence, it is merely to state certain views I entertain in regards to the constitutionality of Batas Pambansa Blg. 129. The controversy in this case involves two constitutional provisions. Article X, Section 1, of the Organic law provides that the legislative has the power to establish inferior Courts by law. Section 7 of the same Article reads: SEC, 7. The Members of the Supreme Court and judges of inferior courts shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. The Supreme Court shall have the power to discipline judges of inferior courts and, by a vote of at least eight Members order their dismissal. There should be no conflict Between the two provisions. Both should be harmonized. 1. a) It is a fundamental proposition that the legislative power to create Courts ordinarily includes the power to organize and to reorganize them, and that the power to abolish Courts is generally coextensive with the power to create them. The power to abolish was not intended to be qualified by the permanence of tenure (Opinion of Chief Justice Ricardo Paras in Ocampo vs. Secretary of Justice, 51 O.G. 147 [1955], citing McCulley vs. State, 53 SW 134; Halsey vs. Gaines 2 Lea 316). The right of Judges to hold office during good behavior until they reach the age of 70 years, or become incapacitated to discharge the duties of their office, does not deprive Congress of its power to abolish, organize or reorganize inferior Courts (Brillo vs. Enage, 94 Phil. 732, 735, citing Zandueta vs. de la Costa, 66 Phil. 615; 42 Am. Jur., Pub. Officer, 904-5). Judges of those Courts take office with that encumbrance and knowledge.

61
The legislative power to create a court carries with it the power to abolish it. When the court is abolished any unexpired term is abolished also. The judge of such court takes office with that encumbrance and knowledge. Perkins v. Corbin, 45 Ala 103, 6 Am. Rep. 698; State, ex rel. Thomas v. Gunter, 170 Ala. 165, 54 So 283, et al." The importance and the imperative of maintaining the independence of the Judiciary is undisputed. At the same time, the power of Congress under the Constitution cannot be abridged. For, in the last analysis, it is not the security of tenure per se that is the only safeguard to the independence of the Judiciary. It is the character and the mettle of the Judges who sit on the Bench. Has not the impression been created in the public and that there are those who have abused the prerogatives of their judicial position knowing that they are untouchables by virtue of the permanence of their tenure b) A distinction should be made between tenure of Judges and tenure of Courts. Section 1 heretofore mentioned refers to the "Judiciary" as a fundamental department of Government. Section 7 quoted above refers to the tenure of office of "individual" Judges (inclusive of Justices of inferior Courts that is to say, tenure of office is a matter concerning the individual Judge. This "individuality" character of Section 7 is supported by the clause that the Supreme Court has the power to discipline individual judges of inferior Courts. A legislature is not bound to give security of tenure to Courts. Courts can be abolished. In fact, the entire judicial system can be changed. If that system can no longer admit of change, woe to the wheels of progress and the imperatives of growth in the development of the Judiciary. To hold that tenure of Judges is superior to the legislative power to reorganize is to render impotent the exercise of that power. It may even be stated that, under Section 7, supra, Judges are entailed to their Courts, from which they cannot be separated before retirement age except as a disciplinary action for bad behavior. Under Section 1, Courts are not entailed to their Judges, because the power of the legislative to establish inferior Courts presupposes the power to abolish those Courts. If an inferior Court is abolished, the Judge presiding that Court will necessarily have to lose his position because the abolished Court is not entailed to him. c) The constitutional guarantee of tenure of Judges applies only as their Courts exist. As long as those Courts exist, the Judges cannot be ousted without just cause; that is the extent of the constitutional provision relative to security of tenure of Judges. Upon declaration of the completion of the reorganization as provided for in the Reorganization Act, the affected Courts "shall be deemed automatically abolished There being no Courts, there are no offices for which tenure of Judges may be claimed. By the abolition of those offices, the rights to them are necessarily extinguished (Manalang vs. Quitoriano, 94 Phil. 903 [1954]). 2. I am satisfied that the challenged law was enacted by the Batasang Pambansa in response to an urgent and pressing public need and not for the purpose of affecting adversely the security of tenure of all Judges or legislating them out to the detriment of judicial independence. It should riot be said of the Batasang Pambansa that its power of abolition of Courts has been used to disguise an unconstitutional and evil purpose to defeat the security of tenure of Judges. The Judiciary Reorganization Act of 1981 sufficiently complies with the bona fide rule in the abolition of public office, as clearly explained in the main opinion. Besides, every presumption of good faith in its actuations must be accorded a coordinate and coequal branch of government, supreme within the limits of its own sphere, until that presumption is clearly overcome. There is no showing that the Reorganization Act was motivated for personal or political reasons as to justify the interference by the Court (Garvey vs. Lowell, 199 Mass, 47, 85 N.E. 182, 127 A.S.R. 468; State vs. Eduards, 40 Mont. 287; 106 Pac. 695, 19 R.C.L. 236; Llanto vs. Dimaporo, 16 SCRA 599 [1966]). Public interest and public good, as the legislative body views it, must be balanced with tenure of Judges, which is an individual right. Reverting to Section 1 and Section 7, supra, the former is the weightier, because the "Judiciary" is of more importance to the welfare of the country than the tenure of office of an individual Judge. If a Judge is removed without cause there can be damage to the public welfare to some extent, but maintenance of a Court that does not meet the requirements of progressive Government, can cause incalculable prejudice to the people. 3. Nor does a conflict exist with the power of discipline vested in the Supreme Court by the present Constitution reading: the Supreme Court shall have the power "to discipline Judges of inferior Courts, and, by a vote of at least 8 members, order their dismissal Absent the Court, it would be futile to speak of the Supreme Court's power to discipline. Thus, where the legislature has willed that the Courts be abolished, the power to discipline cannot pose an obstacle to the abolition. The power to discipline can come into play only when there is removal from an existing judicial office but not when that it

62
office is abolished. The reorganization of the judicial system with the abolition of certain Courts is not an exercise of the power to discipline the Judges of the abolished Courts. It is of significance to note that the power to dismissal vested in the Supreme Court by the 1973 Constitution is delimited by its power to discipline. Absent any need for discipline and the power to dismiss does not exist. Being circumscribed in scope, it may well be asked: does the grant of the power of discipline and dismissal in the Supreme Court deprive the executive of the power of removal? Is it not more in keeping with the allocation of powers in our government to state that the Supreme Court shares its power to dismiss with the executive power of removal? For is not the power of removal basically executive in nature, as an incident to the power of appointment, which is the prerogative of the Chief Executive alone As in the case of appointments, Section 5 (6), Article X of the Constitution provides that the Supreme Court shall appoint its officials and employees. However, is not this power shared with the power of appointment of the executive who appoints some of the Court officials These questions could lend themselves to an in-depth study in the proper case. 4. The abolition would be no deprivation either of due process of law. A public office cannot be regarded as the "property " of the incumbent. A public office is not a contract (Segovia vs. Noel, 47 Phil. 543 [1925]). A public office is a public trust (Section 1, Article XIII. 1973 Constitution). It is a privilege in the gift of the State (Brown vs. Russell, 166 Mass. 14, 43 NE 1005, 32 LRA, 253 cited also in Taada & Carreon, Political Law of the Philippines, Vol. 2, p. 537). The officers are the servants of the people and not their rulers (22 R.C.L. 378-379, cited in Martin, Administrative Law, Law on Public Officers and Election Law, p. 112, 1970 ed.). Besides, it bears stressing that there is no removal from office but abolition of the office itself. 5. The questioned statute is in keeping with major reforms in other departments of government. "The thrust is on development." It is "the first major reorganization after four generations." It does not provide for a piecemeal change, which could be ineffective. It goes to the roots and does not just scratch the surface of our judicial system. Its main objectives are an improved administration of justice, the "attainment of more efficiency in the disposal of cases, a reallocation of jurisdiction, and a revision of procedures which do not tend to the proper meting out of justice." These aims are policy matters of necessity in the pursuit of developmental goals within the Judiciary. 6. The Reorganization Act reorganizing the entire judicial system excluding the Supreme Court, which is the only constitutional Court, and the Sandiganbayan. It envisages institutional reforms in the Philippine judiciary. It does not simply change the names of the Courts. The facts herein are dissimilar from those in Brillo vs. Enage (94 Phil. 732 [1954]) where the position of Justice of the Peace, although ostensibly abolished, was merely changed to Municipal Judge after the municipality of Tacloban was converted into a city with its own charter. Significant among the institutional changes and procedural reforms are: The Intermediate Appellate Court This Court is now constituted into ten (10) divisions instead of fifteen (15), five members composing each division, and a majority vote of three members being needed for a decision. This obviates the cumbersome procedure, in case of dissent, of assigning two other members to compose a "division of five". It also allows flexibility in that any three members of a division, arriving at unanimity, can promulgate a decision. Now provided for is specialization into four (4) Civil Cases Divisions, two (2) Criminal Cases Divisions and four (4) Special Cases Divisions. The specialization is expected to contribute to the expeditious disposal of cases. The Court has been given original jurisdiction to issue Writs of mandamus, prohibition, certiorari, habeas corpus, quo warranto and auxiliary writs or processes whether or not in aid of its appellate jurisdiction. This would undoubtedly ease the burden of the Supreme Court where numerous such cases are filed daily. It has exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards of quasi-judicial agencies, instrumentalities, boards or commissions, except those falling within the exclusive appellate jurisdiction of the Supreme Court in accordance with the Constitution. The Intermediate Appellate Court would now have the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues raised in cases falling within its original and appellate

63
jurisdiction, including the power to grant and conduct new trials or further proceedings (Sec. 9). This does away with the delays attendant to the remand of cases to the lower trial Courts. Regional Trial Courts There are now thirteen (13) Judicial Regions, the same as the present administrative and Batasang Pambansa Regions, instead of sixteen (16) Judicial Districts. A Judge is appointed to a region, which is his official station. This ensures mobility since a Judge may be assigned anywhere within the Region without applying the constitutional limitation of six months. Additionally, -it can remedy temporary inequalities of caseloads in trial Courts. Specialized Courts are integrated into the Regional Trial Courts. Thus, Regional Trial Courts would try all cases within its jurisdiction unless special cases are assigned to them, in which case, they remain as Branches of Regional Trial Courts. Special procedures and technical rules governing special Courts will continue to remain applicable in Branches assigned those special cases. Metropolitan Trial Courts There is one Metropolitan Trial Court with several Branches for large urban areas. The appointment of Judges would be to a Metropolitan Trial Court although a Judge may be assigned by the Supreme Court to any Branch of the Metropolitan Trial Court as demanded by the exigencies of the service. The Supreme Court may designate certain Branches of said Courts to exercise special jurisdiction over certain cases, unlike the present set-up where special jurisdiction applies only to cases of traffic violations. Municipal Trial Courts/Municipal Circuit Trial Courts Municipal Trial Courts may now be designated by the Supreme Court to exercise special jurisdiction over certain cases, thereby resulting in overall flexibility. They can also be circuitized with those in cities not forming part of metropolitan areas. One notable change between the old and the new set up is that Judges of these Courts will now be Presidential appointees unlike presently where the incumbent Judges are merely designated by the Supreme Court in an Administrative Order to sit in existing Municipal Courts and Municipal Circuit Courts. 7. There are innovative features in the Act that commend themselves: a) The confusing and illogical areas of concurrent jurisdiction between trial Courts have been entirely eliminated. b) Under Section 39, there is a uniform period for appeal of fifteen (15) days counted from the notice of the final order, resolution, award, judgment, or decision appealed from. A record on appeal is no longer required to take an appeal. The entire original record is now to be transmitted. c) Under Section 40, in deciding appealed cases, adoption by reference of findings of fact and conclusions of law as set forth in the decision, order, or resolution appealed from, is also provided for. This will expedite the rendition of decisions in appealed cases. d) Section 42 provides for "a monthly longevity pay equivalent to 5% of the monthly basic pay for Justices and Judges of the courts herein created for each five years of continuous, efficient, and meritorious service rendered in the Judiciary, Provided that, in no case shall the total salary of each Justice or Judge concerned, after this longevity pay is

64
added, exceed the salary of the Justice or Judge next in rank." Thus, Justices and Judges who may not reach the top, where unfortunately there is not enough room for all, may have the satisfaction of at least approximating the salary scale of those above him depending on his length of service, 8. But while the law itself as written is constitutional, the manner in which it will be administered should not be tainted with unconstitutionality (Myles Salt Co. vs. Board of Commrs., 239 US 478, 60 L. Ed. 392, 36 Sct 204). To obviate the possibility of an unconstitutional exercise of power the following safeguards are recommended and/or expected to be undertaken: a) The President can be expected to indicate a reasonable time frame for the completion of the reorganization provided for in the Act and the issuance of the corresponding implementing Order. b) Appointments and their effectivity should be simultaneous with, or as close as possible, to the declaration by the President of the completion of the reorganization under Section 44 to avoid any detriment to the smooth and continuous functioning of the judicial machinery. c) The services of those not separated should be deemed uninterrupted, as recommended by the Committee on Judicial Reorganization (Article XI of its Report). 9. For the speedy implementation of the law, the Supreme Court can be expected to submit to the President within thirty (30) days from the date of finality of its Decision the staffing pattern for all Courts required by Section 43. I am constrained to disagree with the suggestion of one of the amici curiae that the staffing pattern be made to include the names of Judges. The staffing pattern for Judges is already clearly and explicitly provided in the law itself which enumerates the various Judges and Justices in their hierarchical order. Furthermore, to include the superior positions of Judges would depart from the traditional concept of a staffing pattern, which refers more to personnel organization and corresponding salaries of inferior employees. It is also constitutionally objectionable in that it would interfere with the prerogative of appointment intrinsically executive in nature (Guevara vs. Inocentes, 16 SCRA 379 [1966]; Government of the Philippines vs. Springer, 50 Phil. 259 [1927]). The President may not be deprived of, nor be limited in, the full use of his discretion in the appointment of persons to any public office. Nothing should so trench upon executive choice as to be, in effect, judicial designation. 10. A word of explanation. If I had resolved not to inhibit myself in this case upon motion filed by petitioners, it was because the Committee on Judicial Reorganization, of which I was privileged to be a member, confined its work to the recommendation of options and guidelines in the task of reorganization. The Committee had no part whatsoever in the drafting of the bill nor in the public hearings conducted. In fact, some of its recommendations like the circuitization or regionalization of the Intermediate Appellate Court, the appellation of members of the Judiciary, the confinement of the jurisdiction of the Intermediate Appellate Court merely to appellate jurisdiction, the adoption of the system found in the United Kingdom and in Commonwealth countries of having a Court of general jurisdiction with trial and appellate divisions, were not availed of in the final Act. 11. Lastly, but by no means the least, I entertain no doubt that reliance can be placed on the good faith of the President that all the deserving, upon considerations of "efficiency, integrity, length of service and other relevant factors shall be appointed to a strengthened and revitalized judicial system in the interest of public service; that appointments will not be unduly delayed; and that appointees will be evaluated thoroughly to ensure quality and impartiality in the men and women who will keep vigil over our judicial ramparts.

ERICTA, J., concurring: I concur in the view that the Judiciary reorganization law is not unconstitutional. It does not violate the principle of security of tenure of judges.

65
The Constitution grants to the Batasang Pambansa the power to create courts inferior to the Supreme Court (Article X, Section 1). All existing inferior courts were created by law. No law is irrepealable. The power to create an office includes the power to abolish the same. (Urgelio vs. Osmea 9 SCRA 317; Maza vs. Ochave, 20 SCRA 142) Security of tenure cannot be invoked when there is no removal of a public officer or employee but an abolition of his office. (Manalang vs. Quitoriano, 94 Phil. 903; Cruz vs. Primicias, 23 SCRA 998; Baldoz vs. Office of the President, 78 SCRA 354, 362) A distinction should be made between removal from office and abolition of an office. Removal implies that the office subsists after ouster, while, in abolition, the office no longer exists thereby terminating the right of the incumbent to exercise the rights and duties of the office. (Canonigo vs. Ramiro, 31 SCRA 278) The power of the legislative branch of the government to abolish courts inferior to the Supreme Court has long been established. (Ocampo vs. Secretary of Justice, 51 O.G. 147). What is only needed is that the abolition passes the test of good faith. it need only be shown that said abolition of the courts is merely incidental to a bona fide reorganization. (Urgelio vs. Osmea supra.) It is unthinkable to impute bad faith to the Presidential Committee on Judicial Reorganization composed of four (4) distinguished members of the Supreme Court, the Minister of Justice and the Deputy Minister of Justice, and to the members of the Batasang Pambansa whose combined efforts after a careful study and deliberation resulted to the enactment of a bill now signed into law as Batasang Pambansa Blg. 129. In his sponsorship speech, Justice Ricardo C. Puno declared the objectives of the Judiciary Reorganization Law to be the following: (1) the attainment of more efficiency in the disposal of cases; (2) the improvement in the quality of decisions by the courts that will result from the easing of court dockets; and (3) structural changes to meet the exigencies of present day Philippine Society and of the foreseeable future. Admittedly, in the implementation of the law, some Judges and Justices may be adversely affected. But in a conflict between public interest and the individual interest of some Judges and Justices, the public weal must prevail. The welfare of the people is the supreme law. The implementation of the law will entail appointments to the new courts. The power of appointment is the exclusive prerogative of the President. The implementation of the law should be left exclusively to the wisdom, patriotism and statesmanship of the President.

PLANA, J., concurring: As the lawmaking body has the power to create inferior courts and define, prescribe and apportion their jurisdiction, so it has the power to abolish or replace them with other courts as long as the act is done in good faith and not for the purpose of attaining an unconstitutional end. Good faith has thus become the crucial issue in the case at bar. Upon an examination of the legislative history of Batas Pambansa 129, as has been done in the main opinion, it is manifest that actual, not merely presumed good faith attended its enactment. On this basis, I concur in the opinion penned by the learned Chief Justice, qualified only by the following observations: 1. Executive consultation with the Supreme Court. I believe the President is under no obligation to consult with the Supreme Court; and the Supreme Court as such is not called upon to give legal advice to the President. Indeed, as the Supreme Court itself has said, it cannot give advisory opinions (Bacolod Murcia Planters' Asso., Inc. vs. Bacolod Murcia milling Co., 30 SCRA 67; NWSA vs. Court of Industrial Relations, 90 SCRA 629) even to the President. In the drafting of the present Constitution, there was an attempt to vest the Supreme Court with the function of giving advisory opinions. The framers of the Constitution, however, did not see fit to adopt the proposal. If the President should consult the Supreme Court on the implementation of Batas Pambansa 129 and the Supreme Court should give its advice (leaving aside the question of procedure), I believe the President would be free to follow or

66
disregard the advice; but, in either case, there would be no guarantee that the implementing action would be upheld in one case or stricken down in the other. 2. Undue delegation of legislative powers. The petitioners have also assailed the constitutionality of Batas Pambansa 129 on the ground that a provision thereof (regarding fixing of compensation and allowances for members of the Judiciary) constitutes an undue delegation unto the President of legislative power. As pointed out in the main opinion, the legislature has provided ample standards or guidelines for the implementation of the delegated power, which makes the delegation inoffensive. I would like to add however some observations on the doctrine of undue delegation of legislative power. Under the old Constitution, when the abiding rule was separation of legislative and executive powers, there was good reason to maintain the doctrine of non-delegation of legislative power. Otherwise, the principle of separation of governmental powers could be negated via unbridled delegation of legislative power. The 1973 Constitution has however radically changed the constitutional set-up. There is now a commingling or fusion of executive and legislative powers in the hands of the same group of officials. Cabinet members play a leading role in the legislative process, and members of the Batasan actively discharge executive functions. The Prime Minister indeed must come from its ranks. Under the circumstances, there is really not much sense in rigidly upholding the principle of non-delegation of legislative power, at least vis-a-vis the Executive Department. In a very real sense, the present Constitution has significantly eroded the hoary doctrine of non-delegation of legislative power, although it has retained some provisions of the old Constitution which were predicated on the principle of non-delegation, this time perhaps not so much to authorize shifting of power and thereby correspondingly reduce the incidence of "undue" delegation of legislative power, as to avert the abdication thereof. In times of war or other national emergency, the Batasang Pambansa may by law authorize the President for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Batasang Pambansa, such powers shall cease upon its next adjournment. (Art. VIII, Sec. 15.) The Batasang Pambansa may by law authorize the President to fix within specified this and subject to such stations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts. [Ibid, Sec. 17(2).]

TEEHANKEE, J., dissenting:

Undoubtedly, no more crucial and transcendental issue of such magnitude has confronted the Philippine judiciary than in the present case. The challenged Act, Batas Pambansa Blg. 129 by its title would reorganize all existing courts (except the ninemember Sandiganbayan 1 and the three- member Court of Tax Appeals) and upon declaration by the President of the completion of the reorganization would unprecedentedly deem all the said courts "automatically abolished en masse and "the incumbents thereof shall cease to hold office." 2 The total abolition involves a total of 1,663 judicial positions with 1,180 incumbent judges and 483 vacancies) as of January 26, 1982 and the Act would effect an increase of 230 judicial positions raising the total of judicial positions to be filled by new appointments to 1,893. Notwithstanding the great deference due to enactments of the Batasan, I regretably find myself unable to join the ranks of my esteemed colleagues in the majority who uphold the constitutionality of the Act and have voted to dismiss the petition, for the following main considerations and reasons: 1. I go by the ruling of the numerical majority of seven Justices (namely, Pablo, Cesar Bengzon, Montemayor, Jugo, Bautista, Roberto Concepcion and J.B.L. Reyes, JJ.) in the leading 1955 case of Ocampo 3 who fell short by one vote to reach the constitutionally required 2/3 majority (at the time 8 out of an 11-member Supreme Court) to declare unconstitutional and invalid section 3 of Republic Act 1186 abolishing the positions of 18 judges-at-large and 15 cadastral judges and removing or legislating out the incumbent judges from office as against the contrary vote of a minority of 4 Justices (namely, then Chief Justice Paras and Padilla, Alex Reyes and Labrador, JJ.) with the paradoxical situation that the last three named Justices voted

67
for the validity of the Act as a remedial measure that abolished said positions without permanent station which subjected them to a rigodon de jueces without the consent of the Supreme Court, which they considered as "repulsive to an independent judiciary" and violative of an express prohibitory provision of the 1935 Constitution while Justice Alex Reyes conceded that otherwise he would go with the majority that "Congress may not, as a general rule, abolish a judicial post without allowing the incumbent to finish his term of office."

2. As then Associate, later Chief Justice Cesar Bengzon remarked in his separate opinion "(T)he [adverse] outcome of this litigation [sanctioning the ouster from office of the ten petitioners who were presiding different Courts of First Instance, some as judges-at-large, others as cadastral judges, upon the enactment on June 19, 1954 of R.A. 1186 abolishing the positions of judges-at large and cadastral judges] is apt to revive the speculation whether wittingly or unwittingly the Constitution has further weakened the usually weak judicial department because of its 'innovative' requirement of a 2/3 majority vote of the Supreme Court to declare a statute unconstitutional, and 'never in our history has such a number of judges of first instance [totalling 33 positions] been ousted through judicial reorganization.
His rationale that the express constitutional guaranty of security of tenure of judges "during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office" 4 must prevail over the implied constitutional authority to abolish courts and to oust the judges despite their constitutionally-secured tenure bears repeating thus:

A careful analysis will perceive that whereas petitioners invoke an express guaranty or positive definition of their term of office, the respondents rely on implied authority to abolish courts and the positions of the respective judges. Accurately stated, respondents' defense rests on a second inference deduced from suchimplied power, because they reason out thusly: Congress has express power to establish courts; therefore it has implicit power to abolish courts and the positions of judges of such abolished courts (first inference); and therefore (second inference) Congress likewise has power to eject the judges holding such positions. Resulting juridical situation. The implied authority invoked by respondents collides with the express guaranty of tenure protecting the petitioners. Which shall prevail Obviously the express guaranty must override the implied authority. "Implications can never be permitted to contradict the expressed intent or to defeat its purpose." xxx xxx xxx
But the collision may he should be avoided, and both sections given validity, if one be considered a proviso or exception to the other. In other words, under the Constitution the Congress may abolish existing courts, provided it does not thereby remove the incumbent judges; such abolition to take effect upon termination of their incumbent The fundamental provisions on the matter are thereby coordinated and harmonized' as Justice Laurel suggested in his concurring opinion in Zandueta v. De la Costa. To bring about reconciliations is the great work of jurists. (Cardozo, Paradoxes of Legal Science, p. 6) 5 3. This reasoning that the express guaranty of tenure protecting incumbent judges during good behavior unless removed from office after hearing and due process or upon reaching the compulsory retirement age of seventy years must override the implied authority of removing by legislation the judges has been further strengthened and placed beyond doubt by the new provisions of the 1973 Constitution that transferred the administrative supervision over all courts and their personnel from the Chief Executive through the then Secretary of Justice to the Supreme Court 6 and vested in the Supreme Court exclusively "the power to discipline judges of inferior courts and, by a vote of at least eight members, order their dismissal," 7 Which power was formerly lodged by the Judiciary Act in the Chief Executive. As former Chief Justice Bengzon stressed in his opinion in Ocampo, the 1934 Constitutional Convention "frowned on removal of judges of first instance through abolition of their offices or reorganization," citing Professor Jose Aruego's observation that the security of judges' tenure provision was intended to "help secure the independence of the judiciary" in that "during good behavior, they may not be legislated out of office by the law-making body nor removed by the Chief Executive for any reason and under the guise of any pretense whatsoever; they may stay in office until they reach the age of seventy years, or become incapacitated to discharge the duties of their office. (Aruego, The Framing of the Philippine Constitution, Vol. 11, pp. 718-719)" He further cited Aruego's report that a proposed amendment to the effect that the prohibition against transfers of judges to another district without the approval of the Supreme Court 8 "should not be applicable to a reorganization of tribunals of justice or of districts, but the amendment was defeated easily without debate"9 and logically concluded that "(N)ow, there . before,

68
having vetoed the transfer of judges thru a re-organization, the Convention evidently could not have permitted the removal of judges thru re-organization.

Now, if the framers of the 1973 Constitution wished to dispel the strong doubts, to say the least in the light of the 7 to 4 vote in the Ocampo case against removal of incumbent judges through legislative action by abolition of their courts, then they would have so clearly provided for such form of removal in the 1973 Constitution, but on the contrary as already stated they ruled out such removal or ouster of judges by legislative action by vesting exclusively in the Supreme Court the power of discipline and removal of judges of all inferior courts. 4. This being so, the fundamental point emphasized by former Chief Justice Bengzon that abolition of the 33 judicial positions in the Ocampo case was "merely an indirect manner of removing the petitioners-judges" while the "positions [that] were eliminated . . . were in fact substituted or replaced by other positions of judges" applies with greater force in the case at bar which involves an unprecedented total "abolition," thus: "(C)all it reorganization, or legislation or removal or abolition, this law disregards the constitutional assurance that these judges, once appointed, shall hold office during good behavior ... [unless incapacitated and until retirement]. The abolition of their offices was merely an indirect manner of removing these petitioners. Remember that on June 19, 1954, there were 107 judges of first instance, district judges, judges at-large and cadastral judges (Rep. Act 296). After the passage of Republic Act No. 1186 there were 114 positions of judges of first instance. There was no reduction there was increase in the number of judges, nor in the number of courts. The positions of Judges-at-Large and Cadastral Judges were eliminated; but they were in fact substituted or replaced by other positions of judges; or if you please, there was a mere change of designation from 'Cadastral Judge or Judge at large to district judge Hence it should be ruled that as their positions had not been 'abolished' de facto, but actually retained with another name, these petitioners are entitled to remain in the service. (Brillo v. Enage, G.R. No. L-7115, March 30, 1954.) For it is not permissible to effect the removal of one judge thru the expediency of abolishing his office even as the office with same power is created with another name. (Brillo v. Enage, Malone v. Williams, 118 tenn. 391, Gibbe's Case 4 A.L.R. p. 211). In this view of the picture, we believe, Congress could have, and should haveas suggested by Secretary Tuazon during the hearings in Congress directed in said Republic Act No. 1186 that 'the present judges-at-large and cadastral judges shall become district judges presiding such districts as may be fixed by the President with the consent of the Commission on Appointments or by the Secretary of Justice, as originally proposed by Senator Laurel in connection with the same bill. Something similar was done before, and it would not be objectionable as an encroachment on the President's prerogative of appointment, because such judges had already been appointed to the judiciary before the passage of the act, and the provision may be construed in the light of mere change of official designation plus increase in salary."
5. Concededly, the questioned Act effects certain changes and procedural reforms with more specific delineation of jurisdiction as mentioned particularly in the majority opinion, but they do not change the basic structure of the existing courts. The present Municipal Courts, Municipal Circuit Courts and City Courts are restructured and redesignated as Municipal Trial Courts and Municipal Circuit Trial Courts and Metropolitan Trial Courts in the challenged Act. The Courts of First Instance, Circuit Criminal Courts, Juvenile & Domestic Relations Courts and Courts of Agrarian Relations are all restructured and redesignated to be known by the common name of Regional Trial Courts with provision for certain branches thereof "to handle exclusively criminal cases, juvenile and domestic relations cases, agrarian cases, urban land reform cases . . . . and/or such other special cases as the Supreme Court may determine in the interest of a speedy and efficient administration of justice" 10 and the Court of Appeals is restructured and redesignated as the Intermediate Appellate Court with an increase in the number of Appellate Justices from the present 45 to 50 but with a reduction of the number of divisions from 15 (composed of 3 Justices each) to 10 (composed of 5 members each) such that it is feared that there is created a bottleneck at the appellate level in the important task discharged by such appellate courts as reviewers of facts. In my view, the "candid admission" by the Chief Justice in his opinion for the Court "that he entertained doubts as to whether the intermediate court of appeals provided for is a new tribunal" 10a is equally applicable to all the other above mentioned courts provided for in the challenged Act as "new courts". And the best proof of this is the plain and simple transitory provision in section 44 thereof that upon the President's declaration of completion of the reorganization (whereby the "old courts" shall "be deemed automatically abolished and the incumbents thereof shall cease to hold office "(T)he cases pending in the old Courts shall be transferred to the appropriate Courts constituted pursuant to this Act, together with the pertinent functions, records, equipment, property and the necessary personnel together with the "applicable appropriations." This could not have been possible without a specification and enumeration of what specific cases of the "old courts" would be transferred to the particular "new courts," had these "new courts" not been manifestly and substantially the "old courts" with a change of name or as

69
described by Justice Barredo to have been his first view, now discarded, in his separate opinion: "just a renaming, and not a substantial and actual modification or alteration of the present judicial structure or system" or "a rearrangement or remodeling of the old structure." 11 6. I do not subscribe to the test of good faith or bad faith in the abolition of the courts and consequent ouster of the incumbent judges from office as expounded by the late eminent Justice Jose P. Laurel in his separate concurring opinion in the pre-war case of Zandueta 12 wherein the Court dismissed the petition for quo warranto on the ground of petitioner Zandueta's estoppel and abandonment of office. 13 Realistically viewed from the basis of the established legal presumptions of validity and constitutionality of statutes (unless set aside by a 2/3 majority of 10 members of the Supreme Court) and of good faith in their enactment, one is hard put to conjure a case where the Court could speculate on the good or bad motives behind the enactment of the Act without appearing to be imprudent and improper and declare that "the legislative power of reorganization (is) sought to cloak an unconstitutional and evil purpose." The good faith in the enactment of the challenged Act must needs be granted. What must be reconciled is the legislative power to abolish courts as implied from the power to establish them with the express constitutional guaranty of tenure of the judges which is essential for a free and independent judiciary. Adherents of the Rule of Law are agreed that indispensable for the maintenance of the Rule of Law is a free and independent judiciary, sworn to protect and enforce. it without fear or favor "free, not only from graft, corruption, ineptness and incompetence but even from the tentacles of interference and insiduous influence of the political powers that be to quote again from Justice Barredo's separate concurring opinion. 14Hence, my adherence to the 7-member majority opinion of former Chief Justice Bengzon in the Ocampo case, supra, as restated by the Philippine Association of Law Professors headed by former Chief Justice Roberto Concepcion that "any reorganization should at least snow the incumbents of the existing courts to remain in office [the appropriate counterpart 'new courts'] unless they are removed for cause." 7. The "judges' broader and stronger guarantees of tenure than ordinary civil servants" as stressed by former Chief Justice Bengzon in Ms majority opinion in Ocampo is based on the judiciary's status as a coequal and coordinate branch of government, whereas the long line of Philippine cases upholding the legislative power to abolish offices refers to officers or employees in the executive branch of government and "the underlying consideration must be borne in mind that Manalang [the aggrieved petitioner] belonged to the Executive Department and because the President approved the law no question or encroachment by one branch on the other could be apprehended or alleged. 15 This is not a matter of personal privilege for the incumbent judges but as aptly stated by former U.P. Law Dean Irene Cortez in her memorandum as amicus curiae, "for the judiciary whose independence is not only eroded but is in grave danger of being completely destroyed." Dean Cortez aptly stressed that "judicial independence is not a guarantee intended for the Supreme Court alone, it extends to the entire court system and is even more vital to the courts at the lowest levels because there are more of them and they operate closest to the people," and "(P)articularly under the present form of modified parliamentary government with legislative and executive functions overlapping and in certain areas merging, the judiciary is left to perform the checking function in the performance of which its independence assumes an even more vital importance. "

The extensive memoranda filed by Dean Cortez and other amici curiae such as former Senator Jose W. Diokno who strongly urges the Court to strike down the Act "to prevent further destruction of judicial independence," former Senator Lorenzo Sumulong, president of the Philippine Constitution Association who advocates for the Court's adoption of the B Bengzon majority opinion in the Ocampo case so as to abide by "the elementary rule in the interpretation of constitutions that effect should be given to all parts of the Constitution" and that the judges' security of tenure guaranty should not be rendered meaningless and inoperative" former Solicitor General Arturo A. Alafriz, president of the Philippine Lawyers' Association who submits that the total abolition of all courts below the Supreme Court (except the Sandiganbayan and the Court of Tax Appeals) and the removal of the incumbent Justices and Judges "violates the independence of the judiciary, their security of tenure and right to due process guaranteed them by the Constitution" and Atty. Raul M. Gonzales, president of the National Bar Association of the Philippines who invokes the Declaration of Delhi at the ICJ Conference in 1959, that "The principles of unremovability of the Judiciary and their Security of Tenure until death or until a retiring age fixed by statute is reached, is an important safeguard of the Rule of Law" have greatly helped in fortifying my views. 8. I had submitted in my memo of September 4, 1980 to the Presidential Committee on Judicial Reorganization that "(W)hatever reorganization plans the committee may recommend to meet the worldwide problem of congested court dockets, and to improve judicial services in the public interest, it should be borne in mind that the members of the judiciary as the weakest branch of government, yet called upon to safeguard the people's rights and protect them oppression, official and otherwise, are entitled to security of tenure as guaranteed by the Constitution. Even though the lower courts may be reshuffled or abolished in the process, the mandate and spirit of the Constitution guaranteeing their security of tenure and maintaining the independence of the judiciary should be respected, and they should be retained in the new courts."

70
In the same vein, Dean Cortez warned of the dire consequences of giving the questioned provisions of the Act the "absolutist sense which they appear to have at first blush" thus: "(T)o accept legislative power to abolish courts asserted under Batas Pambansa Blg. 129 which sweeps through practically the entire judiciary would be to open the door to future court abolitions in the guise of reorganization. At this stage of our political development, the process of embarking upon a modified parliamentary system may well usher in a situation where despite guarantees of judicial tenure, each ruling party in the legislature or any alliance that can command a majority vote may periodically undertake complete reorganization and remove judges, thus making of the judiciary a veritable straw in the political wind and "(F)urthermore, what can result in the modified parliamentary system from the close working relationship between executive and legislature is made manifest in Batas Pambansa Blg. 129. If the sweeping revamp provided were to be carried out the President would appoint all of the justices and judges of the courts affected and the whole membership in the judiciary from the highest to the lowest courts would be his appointees. It is relevant to point out that it is precisely a situation like this that the Constitution seeks to avoid when it provides staggered terms for the chairman and members of the constitutional commissions which like the judiciary are guaranteed independence."
9. The judges' security of tenure was rendered nugatory by the Transitory Provisions of the 1973 Constitution which granted the incumbent President the unlimited power to remove and replace all judges and officials 16 (as against the limited one-year period for the exercise of such power granted President Quezon in the 1935 Constitution upon establishment of the Philippine Commonwealth Upon the declaration of martial law in September, 1972, justices and judges of all courts, except the Supreme Court, had been required to hand in their resignations. There is listed a total of 53 judges who were replaced or whose resignations were accepted by the President during the period from September, 1972 to April, 1976. The power to replace even the judges appointed after the effectivity on January 17, 1973 of the 1973 Constitution is yet invoked on behalf of the President in the pending case of Tapucar vs. Famador 17 notwithstanding the generally held view that such post-1973 Constitution appointed judges are not subject to the Replacement Clause of the cited Transitory Provision. (In this case, petitioner judge appointed on January 30, 1976 as judge of the Court of First Instance of Agusan del Norte and Butuan City, Branch 1, invoked his constitutional security of tenure and questioned the appointment extended on February 26, 1980 to respondent to replace him, although he had not been removed or otherwise dismissed from his position nor had be resigned therefrom. The Court per its March 27, 1980 resolution ordered both to refrain from discharging the functions of the questioned office And now comes this total abolition of 1,663 judicial positions (and thousands of personnel positions) unprecedented in its sweep and scope. The urgent need is to strengthen the judiciary with the restoration of the security of tenure of judges, which is essential for a free and independent judiciary as mandated by the Constitution, not to make more enfeebled an already feeble judiciary, possessed neither of the power of the sword nor the purse, as decried by former Chief Justice Bengzon in his Ocampo majority opinion:

Shall we have judges of the type of Lord Coke Or judges, who, in his place, would have answered 'I'll do what his majesty pleases,' judges who, afraid of ouster thru a judiciary reshuffle, would rather serve the interests of the party in power or of the political boss, than the interests of justice? As it is, the Judicial Department is feeble enough. Shall we render it feebler with judges precariously occupying their official seats Judges performing their duties under the sword of Damocles of future judicial reorganizations
10. The Chief Justice, in his opinion for the Court, equally stressed that "what is equally apparent is that the strongest ties bind the executive and legislative departments. It is likewise undeniable that the Batasang Pambansa retains its full authority to enact whatever legislation may be necessary to carry out national policy as usually formulated in a caucus of the majority party. It is understandable then why in Fortun vs. Labang 18 it as stressed that with the provision transferring to the Supreme Court administrative supervision over the Judiciary, there is a greater need 'to preserve unimpaired the independence of the judiciary, especially so at present, where to all intends and purposes, there is a fusion between the executive and the legislative branches,'" 19 with the further observation that "many are the ways by which such independence could be eroded." In the cited case of Judge Fortun (likewise penned by the Chief Justice for the Court), the Court issued a writ of prohibition and certiorari ordering the dismissal of the criminal complaint filed with respondent fiscal Labang by "disgruntled members of the bar with a record of losing cases" in the judge's court and imposed the penalty of censure on each and everyone of the private respondents-lawyers for the "unseemly haste" with which they filed the criminal complaint, abetted by "the appearance of sheer vindictiveness or oppressive exercise of state authority." The Court marked the "violation of the cardinal principles of fairness and due process that underlie the Rule of Law. Petitioner-Judge was not heard; he was denied the opportunity to defend himself against the accusation. There was, on the part of private respondents then, a failure to abide by a Resolution of the Integrated Bar stressing that precisely integration could shield 'the judiciary which traditionally cannot defend itself except within its own forum, from the assaults that politics and self-interest may level at it, and assist it to maintain its integrity, impartiality and independence,' " and that such subjection of a judge to public "harassment and humiliation . . . can diminish public confidence in the courts."

71
11. This brings us to the allegedly underlying need for B.P. Blg. 129 discussed in the course of committee hearings of Cabinet Bill No. 42 and the deliberation on second reading in the Batasang Pambansa to rid the judiciary of incompetent and corrupt judges and to restore confidence in the integrity of the courts. The purge has been the constant subject of headlines and editorials, with the Ministry of Justice's Integrity Council reportedly screening and conducting "integrity tests as to new applicants and the incumbent judges 20 and seeking "confidential information on corrupt and incompetent judges to help the government purge the judiciary." 21 Prime Minister Cesar Virata was quoted as saying that "there will be a purge of the corrupt and the misfits' when the Judiciary Reorganization Act is signed into law by President Marcos and implemented in coordination with the Supreme Court." 22 The public respondents' answer sidesteps the issue of such purge contravening the rudiments of a fair hearing and due process and submits that "no term of office is sacrosanct when demanded before the altar of the public good." The metropolitan papers reported the "anxiety gripping the judiciary as the Ministry of Justice has reportedly been asked to collate information 'on the performance of the judges and on the qualifications of those slated to take over the positions of the incompetent, the inefficient or those involved in irregularities. As stated in an editorial, 'Somehow, the uncertainty that now hovers over the judiciary has unduly subjected the judges to mental torture since they do not know when or whether the axe will fall on them. Worse, the sword of Damocles hanging over their heads could provoke them into seeking the help of people claiming to have influence with the powers that be." 23

But Dean Cortez in her memorandum states that "However, nowhere on public record is there hard evidence on this. The only figures given in the course of the committee hearings were to the effect that out of some 1,700 members of the judiciary, between 10 to 15 were of the undesirable category, i.e. misfit, incompetent or corrupts. (Barredo, J., before the Committee on Justice, human Rights and Good Government, December 4, 1980)," and that "(I)f this be the case, the unprecedented, sweeping and wholesale abolition of judicial offices becomes an arbitrary act, the effect of which is to assert the power to remove all the incumbents guilty or innocent without due process of law." Now would it be of any avail to beg the question and assert that due process is not available in mass abolitions of courts.
Justice Barredo, however, without citing any hard evidence, refers in his separate concurrence to twin objectives of getting rid of " structural inadequacies of the system or of the cumbersomeness and technicality-peppered and dragging procedural rules in force and of "a good number of those occupying positions in the judiciary (who') make a mockery of justice and take advantage of their office for personal ends He adds that "it is my personal assessment of the present situation in our judiciary that its reorganization has to be of necessity two-pronged, as I have just indicated, for the most Ideal judicial system with the most perfect procedural rules cannot satisfy the people and the interests of justice unless the men who hold positions therein possess the character, competence and sense of loyalty that can guarantee their devotion to duty and absolute impartiality, nay, impregnability to all temptations of graft and corruption, including the usual importunings and the fearsome albeit improper pressures of the powers that be," 24 and invokes the adage of "grandes males, grandes remedios" to now uphold the validity of the Act.

Former Senator Diokno in his memorandum anticipates the argument that "great ills demand drastic cures" thus: "Drastic, yes but not unfair nor unconstitutional. One does not improve courts by abolishing them, any more than a doctor cures a patient by killing him. The ills the judiciary suffers from were caused by impairing its independence; they will not be cured by totally destroying that independence. To adopt such a course would only breed more perversity in the administration of justice, just as the abuses of martial rule have bred more subversion." 12. Finally, as stated by the 19-i 5 integrated Bar of the Philippines 2nd House of Delegates, "It would, indeed, be most ironical if Judges who are called upon to give due process cannot count it on themselves. Observance of procedural due process in the separation of misfits from (he Judiciary is the right way to attain a laudable objective. ' As stressed by the Chief Justice in the Fortun case, judges are entitled to the cardinal principles of fairness and due process and the opportunity to be heard and defend themselves against the accusations made against their and not to be subjected to harassment and humiliation, and the Court will repudiate the "oppressive exercise of legal authority." More so, are judges entitled to such due process when what is at stake is their constitutionally guaranteed security of tenure and non-impairment of the independence of the judiciary and the proper exercise of the constitutional power exclusively vested in the Supreme Court to discipline and remove judges after fair hearing. In sum, I see no reason to change the stand submitted by me to the Presidential Committee on Judicial Reorganization that

72
Judges of inferior courts should not be summarily removed and branded for life in such reorganization on the basis of confidential adverse reports as to their performance, competence or integrity, save those who may voluntarily resign from office upon being confronted with such reports against them. The trouble with such ex-parte reports, without due process or hearing, has been proven from our past experience where a number of honest and competent judges were summarily removed while others who were generally believed to be basket cases have remained in the service; and The power of discipline and dismissal of judges of all inferior courts, from the Court of Appeals down, has been vested by the 1973 Constitution in the Supreme Court, and if the judiciary is to be strengthened, it should be left to clean its own house upon complaint and with the cooperation of the as grieved parties and after due process and hearing. The constitutional confrontation and conflict may wen be avoided by holding that since the changes and provisions of the challenged Act do not substantially change the nature and functions of the "new courts" therein provided as compared to the "abolished old courts" but provide for procedural changes, fixed delineation of jurisdiction and increases in the number of courts for a more effective and efficient disposition of court cases, -the incumbent judges guaranteed security of tenure require that they be retained in the corresponding "new courts." Fernandez, J., concur.

Separate Opinions

BARREDO, J., concurring: I join the majority of my brethren in voting that the Judiciary Reorganization Act of 1980, Batas Pambansa Blg. 129, is not unconstitutional as a whole nor in any of its parts. The issue of unconstitutionality raised by petitioners relates particularly to Section 44 of the Act which reads as follows: SEC. 44. Transitory provisions. The provisions of this Act shall be immediately carried out in accordance with an Executive Order to be issued by the President. The Court of Appeals, the Courts of First Instance, the Circuit Criminal Courts, the Juvenile and Domestic Relations Courts, the Courts of Agrarian Relations, the City Courts, the Municipal Courts, and the Municipal Circuit Courts shall continue to function as presently constituted and organized, until the completion of the reorganization provided in this Act as declared by the President. Upon such declaration, the said courts shall be deemed automatically abolished and the incumbents thereof shall cease to hold office. The cases pending in the old Courts shall e transferred to the appropriate Courts constituted pursuant to this Act, together with the pertinent functions, records, equipment,. property and the necessary personnel. The applicable appropriations shall likewise be transferred to the appropriate courts constituted pursuant to this Act, to be augmented as may be necessary from the funds for organizational changes as provided in Batas Pambansa Blg. 80. Said funding shall thereafter be included in the annual General Appropriations Act. It is contended by petitioners that the provision in the above section which mandates that "upon the declaration upon the President that the reorganization contemplated in the Act has been completed), the said courts (meaning the Court of Appeals and all other lower courts, except the Sandiganbayan and the Court of Tax Appeals) shall be deemed abolished and the incumbents thereof shall cease to hold office" trenches on all the constitutional safeguards and guarantees of the independence of the judiciary, such as the security of tenure of its members (Section 7, Article X of the Philippine Constitution of 1973), the prerogatives of the Supreme Court to administratively supervise all courts and the personnel thereof (Section 6, Id.) and principally, the power of the Supreme Court "to discipline judges of inferior courts and, by a vote of at least eight Members, order their dismissal. " (Section 7, Id.)

73
On the other hand, respondents maintain that thru the above-quoted Section 44. the Batasan did nothing more than to exercise the authority conferred upon it be Section I of the same Article of the Constitution which provides that The Judicial power shall be rested in one Supreme Court and in such inferior courts as may be established by law." In other words, since all inferior courts are, constitutionally speaking, mere creatures of the law (of the legislature it follows that it is within the legislature's power to abolish or reorganize them even if in so doing, it might result in the cessation from office of the incumbents thereof before the expiration of their respective constitutionally fixed tenures. Respondents emphasize that the legislative power in this respect is broad and indeed plenary. Viewing the problem before Us from the above perspectives, it would appear that our task is either (1) to reconcile, on the one hand, the parliament's power of abolition and reorganization with, on the other, the security of tenure of members of the judiciary and the Supreme Court's authority to discipline and remove judges or (2) to declare that either the power of the Supreme Court or of the Batasan is more paramount than that of the other. I believe. however, that such a manner of looking at the issue that confronts Us only confuses and compounds the task We are called upon to perform. For how can there be a satisfactory and rational reconciliation of the pretended right of a judge to continue as such, when the position occupied by him no longer exists? To suggest, as some do, that the solution is for the court he is sitting in not to be deemed abolished or that he should in some way be allowed to continue to function as judge until his constitutional tenure expires is obviously impractical, if only because we would then have the absurd spectacle of a judiciary with old and new courts functioning under distinct set-ups, such as a district court continuing as such in a region where the other judges are regional judges or of judges exercising powers not purely judicial which is offensive to the Constitution. The other suggestion that the incumbent of the abolished court should be deemed appointed to the corresponding new court is even worse, since it would deprive the appointing authority, the president, of the power to make his own choices and would, furthermore, amount to an appointment by legislation which is a Constitutional anachronism. more on this point later . Inasmuch as pursuant to the analysis of the majority of the Members of this Court, in fact and in law, the structure of judicial system created by Batas Pambansa 129 is substantially different from that under the Judiciary Act of 1948, as amended, hence the courts now existing are actually being abolished, why do We have to indulge in any reconciliation or feel bound to determine whose power, that of the Batasang Pambansa or that of this Court, should be considered more imperious? It being conceded that the power to create or establish carries with it the power to abolish, and it is a legal axiom, or at least a pragmatic reality that the tenure of the holder of an office must of necessity end when his office no longer exists, as I see it, be have no alternative than to hold that petitioners' invocation of the independence of the judiciary principle of the Constitution is unavailing ill the cases at bar. It is as simple as that. I might hasten to add, in this connection, that to insist that what Batas Pambansa 129 is doing is just a renaming and not a substantial and actual modification or alteration of the present judicial structure or system assuming a close scrutiny might somehow support such a conclusion, is pure wishful thinking, it being explicitly and unequivocally provided in the section in question that said courts are deemed abolished" and further, as if to make it most unmistakably emphatic, that "the incumbents thereat shall cease to hold office." Dura les, sed les. As a matter of fact, I cannot conceive of a more emphatic way of manifesting and conveying the determined legislative intent about it. Now, why am I yielding to the above reasoning and conclusion? Why don't I insist on championing the cause of the independence of the judiciary by maintaining that the constitutional safeguards thereof I have already enumerated earlier must be respected in any reorganization ordained by the parliament My answer is simple. Practically all the Members of the Court concede that what is contemplated is not only general reorganization but abolition in other words, not only a rearrangement or remodelling of the old structure but a total demolition thereof to be followed by the building of a new and different one. I am practically alone in contemplating a different view. True, even if I should appear as shouting in the wilderness, I would still make myself a hero in the eyes of man justices and judges, members of the bar and concerned discerning citizens, all lovers of the judicial independence, but understandably, I should not be, as I am not, disposed to play such a role virtually at the expense not only of my distinguished colleagues but of the Batasang Pambansa that framed the law and, most of all, the President who signed and, therefore, sanctioned the Act as it is, unless I am absolutely sure that my position is formidable, unassailable and beyond all possible contrary ratiocination, which I am not certain of, as I shall demonstrate anon.
To start with, the jurisprudence, here and abroad, touching on the question now before Us cannot be said to be clear and consistent, much less unshakeable and indubitably definite either way. None of the local cases 1 relied upon and discussed by the parties and by the Members of the Court during the deliberations, such as Borromeo, 2 Ocampo, 3Zandueta, 4 Brillo, 5 etc. can, to my mind, really serve as reliable pole stars that could lead me to certainty of correctness.

74
Of course, my instinct and passion for an independent judiciary are uncompromising and beyond diminution. Indeed, my initial reactions, publicly known, about Batas Pambansa 129 explaining academically its apparent tendency to invade the areas of authority of the Supreme Court, not to speak of its dangerously impairing the independence of the judiciary, must have, I imagine, created the impression that I would vote to declare the law unconstitutional. But, during the deliberations of the Court, the combined wisdom of my learned colleagues was something I could not discount or just brush aside. Pondering and thinking deeper about all relevant factors, I have come to the conviction that at least on this day and hour there are justifiable grounds to uphold the Act, if only to try how it will operate so that thereby the people may see that We are one with the President and the Batasan in taking what appear to be immediate steps needed to relieve the people from a fast spreading cancer in the judiciary of our country. Besides, the Philippines has somehow not yet returned to complete normalcy The improved national discipline so evident during the earlier days of martial law, has declined at a quite discernible degree. Different sectors of society are demanding urgent reforms in their respective field And about the most vehement and persistent, loud and clear, among their gripes, which as a matter of fact is common to all of them is that about the deterioration in the quality of performance of the judges manning our courts and the slow and dragging pace of pending judicial proceedings. Strictly speaking, this is, to be sure, something that may not necessarily be related to lack of independence of the judiciary. It has more to do with the ineptness and/or corruption among and corruptibility of the men sitting in the courts in some parts of the country And what is worse, while in the communities concerned the malady is known to factually exist and is actually graver and widespread, very few, if any individuals or even associations and organized groups, truly incensed and anxious to be of help, have the courage and possess the requisite legal evidence to come out and file the corresponding charges with the Supreme Court, And I am not vet referring to similar situations that are not quite openly known but nevertheless just as deleterious. On the other hand, if all these intolerable instances should actually be formally brought to the Supreme Court, it would be humanly impossible for the Court to dispose of them with desirable dispatch, what with the thousands of other cases it has to attend to and the rather cumbersome strict requirements of procedural due process it has to observe in each and every such administrative case all of which are time consulting. Verily, under the foregoing circumstances, it may be said that there is justification for the patience of the people about the possibility of early eradication of this disease or evil in our judiciary pictured above to be nearing the breaking point. Withal, we must bear in mind that judicial reorganization becomes urgent and inevitable not alone because of structural inadequacies of the system or of the cumbersomeness and technicality-peppered and dragging procedural rules in force, but also when it becomes evident that a good number of those occupying positions in the judiciary, make a mockery of justice and take advantage of their office for selfish personal ends and yet, as already explained, those in authority cannot expeditiously cope with the situation under existing laws and rules. It is my personal assessment of the present situation in our judiciary that its reorganization has to be of necessity two-pronged, as I have just indicated, for the most Ideal judicial system with the most perfect procedural rules cannot satisfy the people and the interests of justice unless the men who hold positions therein possess the character, competence and sense of loyalty that can guarantee their devotion to duty and absolute impartiality, nay, impregnability to an temptations of graft and corruption, including the usual importunings and the fearsome albeit improper pressures of the powers that be. I am certain that the Filipino people feel happy that Batas Pambansa 129 encompasses both of these objectives, which indeed are aligned with the foundation of the principle of independence of the judiciary. The above premises considered, I have decided to tackle our problem from the viewpoint of the unusual situation in which our judiciary is presently perilously situated. Needless to say, to all of us, the Members of the Court, the constitutional guarantees of security of tenure and removal only by the Supreme Court, among others, against impairment of the independence of the judiciary, which is one of the bedrock's and, therefore, of the essence in any "democracy under a regime of justice, peace, liberty and equality (Preamble of the 1973 Constitution), are priceless and should be defended, most of all by the Supreme Court, with all the wisdom and courage God has individually endowed to each of Us. Withal, we are all conscious of the fact that those safeguards have never been intended to place the person of the judge in a singular position of privilege and untouchability, but rather, that they are essentially part and parcel of what is required of an independent judiciary where judges can decide cases and do justice to everyone before them ruat caelum. However, We find Ourselves face to face with a situation, in our judiciary which is of emergency proportions and to insist on rationalizing how those guarantees should be enforced under such a circumstance seem to be difficult, aside from being controversial. And so, in a real sense, We have to make a choice between adhering to the strictly legalistic reasoning pursued by petitioners, on the one hand, and the broader and more practical approach, which as I have said is within the spirit at least of the Constitution.

75
My concept of the Constitution is that it is not just a cluster of high sounding verbiages spelling purely Idealism and nobility in the recognition of human dignity, protection of individual liberties and providing security and promotion of the general welfare under a government of laws. With all emphasis and vehemence, I say that the fundamental law of the land is a living instrument which translates and adapts itself to the demands of obtaining circumstances. It is written for all seasons, except for very unusual instances that human ratiocination cannot justify to be contemplated by its language even if read in its broadest sense and in the most liberal way. Verily, it is paramount and supreme in peace and in war, but even in peace grave critical situations arise demanding recourse to extraordinary solutions. Paraphrasing the Spanish adage, "Grandes males, grandes remedios ", such in ordinary problems justify exceptional remedies. And so, history records that in the face of grave crises and emergencies, the most constitutionally Idealistic countries have, at one time or another, under the pressure of pragmatic considerations, adopted corresponding realistic measures, which perilously tether along the periphery of their Charters, to the extent of creating impressions, of course erroneous, that the same had been transgressed, although in truth their integrity and imperiousness remained undiminished and unimpaired. The Philippines has but recently had its own experience of such constitutional approach. When martial law was proclaimed here in 1972, there were those who vociferously shouted not only that the President had acted arbitrarily and without the - required factual bases contemplated in the Commander-in-Chief clause of the 1935 Constitution, but more, that he had gone beyond the traditional and universally recognized intent of said clause by utilizing his martial law powers not only to maintain peace and tranquility and preserve and defend the integrity and security of the state but to establish a New Society The critics contended that martial law is only for national security, not for the imposition of national discipline under a New Society. Due to its relevancy to Our present discussion, it is well for everyone to bear in mind that in this jurisdiction, this concept of martial law has already been upheld several times by this Court. 1, for one, accepted such a construction because I firmly believe that to impose martial law for the sole end of suppressing an insurrection or rebellion without coincidentally taking corresponding measures to eradicate the root causes of the uprising is utter folly, for the country would still continue to lay open to its recurrence. I have made the foregoing discourse, for it is fundamentally in the fight of this Court's doctrines about the imposition of martial law as I have stated that I prefer to base this concurrence. To put it differently, if indeed there could be some doubt as to the correctness of this Court's judgment that Batas Pambansa 129 is not unconstitutional, particularly its Section 44, I am convinced that the critical situation of our judiciary today calls for solutions that may not in the eyes of some conform strictly with the letter of the Constitution but indubitably justified by its spirit and intent. As 1 have earlier indicated, the Charter is not just a construction of words to whose literal iron-clad meanings we must feel hidebound without regard to every Constitution's desirable inherent nature of adjustability and adaptability to prevailing situations so that the spirit and fundamental intent and objectives of the framers may remain alive. Batas Pambansa 129 is one such adaptation that comes handy for the attainment of the transcendental objectives it seeks to pursue While, to be sure, it has the effect of factually easing out some justices and judges before the end of their respective constitutional tenure sans the usual administrative investigation, the desirable end is achieved thru means that, in the light of the prevailing conditions, is constitutionally permissible. Before closing, it may not be amiss for me to point out that Batas Pambansa Blg. 129, aside from what has been discussed about its effect on the guarantees of judicial independence, also preempts, in some of its provisions, the primary rule-making power of the Supreme Court in respect to procedure, practice and evidence. With the pardon of my colleagues, I would just like to say that the Court should not decry this development too much. After all, the legislature is expressly empowered by the Charter to do so, (Section 5(5), Article X of the Constitution of 1973) so much so, that I doubt if the Court has any authority to alter or modify any rule the Batasang Pambansa enunciates. Truth to tell, as Chairman of the Committee on the Revision of the Rules of Court, for one reason or another, principally the lack of a clear consensus as to what some of my colleagues consider very radical proposals voiced by me or my committee, We have regrettably procrastinated long enough in making our procedural rules more practical and more conducive to speedier disposal and termination of controversies by dealing more with substantial justice. So also have We, it must be confessed, failed to come up to expectations of the framers of the Constitution in our ways of disposing of administrative complaints against erring and misconducting judges. Of course, We can excuse Ourselves with the explanation that not only are We overloaded with work beyond human capability of its being performed

76
expeditiously, but that the strict requisites of due process which are time consuming have precluded Us from being more expeditious and speedy. I feel I must say all of these, because if the above-discussed circumstances have not combined to create a very critical situation in our judiciary that is making the people lose its faith and confidence in the administration of justice by the existing courts, perhaps the Court could look with more sympathy at the stand of petitioners. I want all the sundry to know, however, that notwithstanding this decision, the independence of the judiciary in the Philippines is far from being insubstantial, much less meaningless and dead. Batas Pambansa 129 has precisely opened our eyes to how, despite doubts and misgivings, the Constitution can be so construed as to make it possible for those in authority to answer the clamor of the people for an upright judiciary and overcome constitutional roadblocks more apparent than real. To those justices, judges, members of the bar and concerned citizens whose eyes may be dimming with tears of disappointment and disenchantment because of the stand I have chosen to adopt in these cases, may I try to assuage them by joining their fervent prayers that some other day, hopefully in the near future, Divine Providence may dictate to another constitutional convention to write the guarantees of judicial independence with ink of deeper hue and words that are definite, clear, unambiguous and unequivocal, in drawing the line of demarcation between the Parliament and the Judiciary in the manner that in His Infinite wisdom would most promote genuine and impartial justice for our people, free, not only from graft, corruption, ineptness and incompetence but even from the tentacles of interference and insiduous influence of the political powers that be. Presently, I am constrained from going along with any other view than that the Constitution allows abolition of existing courts even if the effect has to be the elimination of any incumbent judge and the consequent cutting of his constitutional tenure of office. I cannot close this concurrence without referring to the apprehensions in some quarters about the choice that will ultimately be made of those who will be eased out of the judiciary in the course of the implementation of Batas Pambansa 129. By this decision, the Court has in factual effect albeit not in constitutional conception yielded generally to the Batasang Pambansa, and more specifically to the President, its own constitutionally conferred power of removal of judges. Section 44 of the Batasan's Act declares that all of them shall be deemed to have ceased to hold office, leaving it to the President to appoint those whom he may see fit to occupy the new courts. Thus, those who will not be appointed can be considered as "ceasing to hold their respective offices", or, as others would say they would be in fact removed. How the President will make his choices is beyond Our power to control. But even if some may be eased out even without being duly informed of the reason therefor, much less being given the opportunity to be heard the past actuations of the President on all matters of deep public interest shouted serve as sufficient assurance that when lie ultimately acts, he will faithfully adhere to his solemn oath "to do justice to every man hence, lie will equip himself first with the fullest reliable information before acts. This is not only my individual faith founded on my personal acquaintance with the character and sterling qualities of President Ferdinand E. Marcos. I dare say this is the faith of the nation in a man who has led it successfully through crises and emergencies, with justice to all, with malice towards none. I am certain, the President will deal with each and every individual to be affected by this reorganization with the best light that God will give him every moment he acts in each individual case as it comes for his decision

AQUINO, J., concurring: I concur in the result. The petitioners filed this petition for declaratory relief and prohibition "to declare the Judiciary Reorganization Act of 1980 (Batas Pambansa Blg. 129) unconstitutional". The petition should have been dismissed outright because this Court has no jurisdiction to grant declaratory relief and prohibition is not the proper remedy to test the constitutionality of the law. the petition is premature. No jurisdictional question is involved. There is no justiciable controversy wherein the constitutionality of the said law is in issue. It is presumed to be constitutional. The lawmaking body before enacting it looked into the constitutional angle.

77
Seven of the eight petitioners are practising lawyers. They have no personality to assail the constitutionality of the said law even as taxpayers. The eighth petitioner, Gualberto J. de la Llana, a city judge (who in 1977 filed a petition for declaratory relief assailing Presidential Decree No. 1229, which called for a referendum. De la Llana his Comelec, 80 SCRA 525), has no cause of action for prohibition. He is not being removed from his position. The Judiciary Reorganization Law was enacted in utmost good faith and not "to cloak an unconstitutional and evil purpose As ably expounded by the Chief Justice, in enacting the said law, the lawmaking body acted within the scope of its constitutional powers and prerogatives.

GUERRERO, J., concurring: I concur with my distinguished and learned colleagues in upholding the constitutionality of the Judiciary Reorganization Act of 1980. For the record, however, I would like to state my personal convictions and observations on this case, a veritable landmark case, for whatever they may be worth.
The legal basis of the Court's opinion rendered by our esteemed Chief Justice having been exhaustively discussed and decisively justified by him, a highly-respected expert and authority on constitutional law, it would be an exercise in duplication to reiterate the same cases and precedents. I am then constrained to approach the problem quite differently, not through the classic methods of philosophy, history and tradition, but following what the well-known jurist, Dean Pound, said that "the most significant advance in the modern science of law is the change from the analytical to the functional attitude." 1 And in pursuing this direct ion, I must also reckon with and rely on the ruling that "another guide to the meaning of a statute is found in the evil which it is designed to remedy, and for this the court properly looks at contemporaneous events, the situation as it existed, and as it was pressed upon the attention of the legislative body." 2 I have no doubt in my mind that the institutional reforms and changes envisioned by the law are clearly conducive to the promotion of national interests. The objectives of the legislation namely: (a) An institutional restructuring by the creation of an Intermediate Appellate Court, thirteen (I 3) Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts: (b) A reappointment of jurisdiction geared towards greater efficiency: (c) A simplification of procedures and (d) The abolition of the inferior courts created by the Judiciary Act of 1948 and other statutes, as approved by the Congress of the Philippines 3 are undoubtedly intended to improve the regime of justice and thereby enhance public good and order. Indeed, the purpose of the Act as further stated in the Explanatory Note, which is "to embody reforms in the structure, organization and composition of the Judiciary, with the aim of improving the administration of justice, of decongesting judicial dockets, and coping with the more complex problems on the present and forseeable future cannot but "promote the welfare of society, since that is the final cause of law. 4 Hence, from the standpoint of The general utility and functional value of the Judiciary Reorganization Act, there should be no difficulty, doubt or disbelief in its legality and constitutionality. That there are ills and evils plaguing the judicial system is undeniable. The notorious and scandalous congestion of court dockets as too well-known to be ignored as are the causes which create and produce such anomaly. Evident is the need to look for devices and measures that are more practical, workable and economical. 5 From the figures alone (301,497 pending cases in 1976; 351, 943 in 1977; 404, 686 in 1978; 426, 911 in 1979; 441, 332 in 1980; and 450, 063 as of February 3, 1982) 6 the congested character of court dockets rising year after year is staggering and enormous, looming like a legal monster.

But greater than the need to dispense justice speedily and promptly is the necessity to have Justices and Judges who are fair and impartial, honest and incorruptible, competent and efficient. The general clamor that the prestige of the Judiciary today has deteriorated and degenerated to the lowest ebb in public estimation is not without factual basis. Records in the Supreme Court attest to the unfitness and incompetence, corruption and immorality of many dispensers of justice.

78
According to the compiled data, the total number of Justices and Judges against whom administrative charges have been filed for various offenses, misconduct, venalities and other irregularities reaches 322. Of this total, 8 are Justices of the Court of Appeals, 119 CFI Judges, 2 Criminal Circuit Judges, 8 CAR Judges, 1 Juvenile & Domestic Relations Court Judge, 38 City Judges, and 146 Municipal Judges. The Supreme Court has found 102 of them guilty and punished them with either suspension, admonition, reprimand or fine. The number includes 1 CA Justice, 35 CFI Judges, 1 CCC Judge, 3 CAR Judges, 1 JDRC Judge, 9 City Judges and53 Municipal Judges. Seventeen (17) Judges have been ordered dismissed and separated from the service. And these are 3 CFI, 1 CAR, 1 City Judge and 12 Municipal Judges. Going over these administrative proceedings, it took an average of two-year period from the filing of the charge to the dismissal of the respondent. In one case, the proceedings were terminated after seven years. How long the pending administrative cases will be disposed of, only time will tell as an increasing number of administrative cases are being filed by victims of judicial misconduct, abuse and arbitrariness.
Excepting those who have been punished and dismissed from the service, there are many who have been castigated and censured in final judgments of the Supreme Court upon appeal or review of the decisions, orders and other acts of the respondent courts, Justices and Judges. To cite a few cases, Our decisions have categorically pronounced respondents' actuations, thus: "deplorable, giving no credit to the Judiciary" 7; applicable rules. The whole proceedings looked no more than a pre-arranged compromise between the accused and the Judge to flaunt the law and every norm of propriety and procedure" 8; "there was a deliberate failure of respondent Judge to respect what is so clearly provided in the Rules of Court" 9; "It is unfortunate that respondent Judge failed to acquaint himself with, 01' misinterpreted, those controlling provisions and doctrines" 10; "The failure of the respondent Municipal Judge to yield obedience to authoritative decisions of the Supreme Court and of respondent Court of First Instance Judge and his deplorable insistence on procedural technicalities was called down in L49828, July 25, 1981. For peremptorily dismissing the third party complaint on the ground that the motion to dismiss was 'welltaken' and respondent Judge did not elaborate, the Court remarked: "May his tribe vanish." 11 In one case, We noted "There is here so something unusual, but far from palliating the gravity of the error incurred, it merely exacerbated it. ... it did render the due process requirement nugatory, for instead of a fair and impartial trial, there was an Idle form, a useless ceremony." 12

It is dishonorable enough to be publicly and officially rebuked but to allow these Judges and their ilk to remain and continue to preside in their courtrooms is a disgrace to the Judiciary. It is to be deplored that the Supreme Court has not found time to exercise its power and authority in the premises, for no charges or proceedings have been instituted against them. We have a list of these crooked Judges whose actuations have been found to be patiently wrong and manifestly indefeasible. There ought to be no objection or compunction in weeding them out from the service. If they are not booted out now, it will take from here to eternity to clean this Augean stable. Candidly, one reason for writing this concurring opinion is to call attention to these evils, abuses and wrongs which are surreptitiously but surely destroying the trust and faith of the people in the integrity of the entire Judiciary. Some members of the Court felt that these revelations would be like washing dirty linen in public. But these facts are of public and official record nay court cases, and sooner or later, Truth will come out.
In the light of these known evils and infirmities of the judiciary system, it would be absurd and unreasonable to claim that the legislators did not act upon them in good faith and honesty of purpose and with legitimate ends. It is presumed that official duty has been regularly performed. 13 The presumption of regularity is not confined to the acts of the individual officers but also applies to the acts of boards, such as administrative board or bodies, and to acts of legislative bodies. 14Good faith is always to be presumed in the absence of proof to the contrary, of which there is none in the case at bar. It could not be otherwise if We are to accord as We must, full faith and credit to the lawmakers' deep sense of public service and the judicious exercise of their high office as the duly-elected representatives of the people. It is conceded that the abolition of an office is legal if attendant with good faith. 15 The question of good faith then is the crux of the conflict at bar. Good faith in the enactment of the law does not refer to the wisdom of the measure, the propriety of the Act, or to its expediency. The questions raised by petitioners and amicus curiae for their cause, viz: Why abolish all the courts Why legislate out the judges Why not amend the Rules of Court only Is abolition of all courts the proper remedy to weed out corrupt and misfits in our Judiciary? may not be inquired into by Us. "It is not the province of the courts to supervise legislation and

79
keep it within the bounds of propriety and common sense. That is primarily and exclusively a legislative concern." 16 The Courts "are not supposed to override legitimate policy and ... never inquire into the wisdom of the law." 17 Chief Justice Fernando who penned the Morfe decision, writes that while "(i)t is thus settled, to paraphrase Chief Justice Concepcion in Gonzales v. Commission on Elections, that only congressional power or competence, not the wisdom of the action taken, may be the basis for declaring a statute invalid," 18 he adds that it is "useful to recall what was so clearly stated by Laurel that 'the Judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government.'" 19 In any case, petitioners have not shown an iota of proof of bad faith. There is no factual foundation of bad faith on record. And I do not consider the statement in the sponsorship speech for Cabinet Bill No. 42 of Minister of Justice Ricardo J. Puno that the Bill would be a more efficient vehicle of "eliminating incompetent and unfit Judges as indicative of impermissible legislative motive. 20

It may be true that while the remedy or solution formulated by the legislation will eradicate hopefully or at least minimize the evils and ills that infect and pester the judicial body, it will result in the actual removal of the Justices of the Court of Appeals and Judges of the lower courts. It is also true that whether it is termed abolition of office or removal from office, the end-result is the same termination of the services of these incumbents. Indeed, the law may be harsh, but that is the law.Dura lex sed lex.
The Justices and Judges directly affected by the law, being lawyers, should know or are expected to know the nature and concept of a public office. It is created for the purpose of effecting the ends for which government has been instituted, which are for the common good, and not the profit, honor or private interest of any one man, family or class of men. In our form of government, it is fundamental that public offices are public trust, and that the person to be appointed should be selected solely with a view to the public welfare. 21 In the last analysis, a public office is a privilege in the gift of the State. 22 There is no such thing as a vested interest or an estate in an office, or even an absolute right to hold office. Excepting constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office or its salary. When an office is created by the Constitution, it cannot be abolished by the legislature, but when created by the State under the authority of the Constitution, it may be abolished by statute and the incumbent deprived of his office. 23 Acceptance of a judicial appointment must be deemed as adherence to the rule that "when the court is abolished, any unexpired term is abolished also. The Judge of such a court takes office with that encumbrance and knowledge." 24 "The Judge's right to his full term and his full salary are not dependent alone upon his good conduct, but also upon the contingency that the legislature may for the public good, in ordaining and establishing the courts, from time to time consider his office unnecessary and abolish it." 25 The removal from office of the incumbent then is merely incidental to the valid act of abolition of the office as demanded by the superior and paramount interest of the people. The bad and the crooked Judges must be removed. The good and the straight, sober Judges should be reappointed but that is the sole power and prerogative of the President who, I am certain, will act according to the best interest of the nation and in accordance with his solemn oath of office "to preserve and defend its Constitution, execute its laws, do justice to everyone ... " There and then the proper balance between the desire to preserve private interest and the desideratum of promoting the public good shall have been struck. 26 The Supreme Court has been called the conscience of the Constitution. It may be the last bulwark of constitutional government. 27 It Must, however, be remembered "that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as courts." 28 The responsibility of upholding the Constitution rests not on the courts alone but on the legislatures as well. It adheres, therefore, to the well-settled principle that "all reasonable doubts should be resolved in favor of the constitutionality of a statute" for which reason it will not set aside a law as violative of the Constitution "except in a clear case." 29

Finally, I view the controversy presented to Us as a conflict of opinions on judicial independence, whether impaired or strengthened by the law; on reorganization of the courts, whether abolition of office or removal therefrom, and on delegation of legislative power, whether authorized or unauthorized. Without detracting from the merits, the force and brilliance of their advocacies based on logic, history and precedents, I choose to stand on the social justification and the functional utility of the law to uphold its constitutionality. In the light of contemporaneous events from which the New Republic emerged and evolved new Ideals of national growth and development, particularly in law and government, a kind or form of judicial activism, perhaps similar to it, is necessary to justify as the ratio decidendi of Our judgment.

80
This is the time and the moment to perform a constitutional duty to affix my imprimatur and affirmance to the law, hopefully an act of proper judicial statesmanship.

ABAD SANTOS, J., concurring: I agree with the learned Chief Justice of the Philippines that Batas Pambansa Blg. 129 is not unconstitutional. Unlike Oscar Wilde, I choose not to yield to temptation by embellishing my concurrence lest I be accrued of bringing coal to Newcastle. Accordingly, I will simply vote to dismiss the petition However, I cannot agree with the Chief Justice when he says: ... In the implementation of the assailed legislation, therefore it should be in accordance with accepted principles of constitutional construction that as far as incumbent justices and judges are concerned, this Court be consulted and that its view be accorded the fullest consideration. There would be no plausibility then to the allegation that there is an unconstitutional taint to the challenged Act. Moreover, such a construction would be in accordance with the basic principle that in the choice of alternatives between one which would save and another which would invalidate a statute, the former is to be preferred. It has already been ruled that the statute does not suffer from any constitutional infirmity because the abolition of certain judicial offices was done in good faith. This being the case, I believe that the Executive is entitled to exercise its constitutional power to fill the newly created judicial positions without any obligation to consult with this Court and to accord its views the fullest consideration. To require consultation will constitute an invasion of executive territory which can be resented and even repelled. The implicit suggestion that there could be an unconstitutional implementation of the questioned legislation is not congruent with the basic conclusion that it is not unconstitutional.

DE CASTRO, J., concurring: I concur in the declaration that the law is not unconstitutional. May I, however, submit this separate opinion more to avoid being misunderstood by my brethren in the judiciary as not feeling for them as much concern as I should for their security of tenure which is raised as the main argument against the constitutionality of the law, than by way of giving added force or support to the main opinion so well-written by Our learned Chief Justice in his usual scholarly fashion. I, therefore, limit myself to a discussion that the assailed statue is not unconstitutional without having to suggest how it may be implemented in order that it could stand the most rigid test of constitutionality, for in that area, what is involved is purely an executive act of the President in whose wisdom, patriotism and sense of justice We should trust in how he would fulfill his sworn duties to see that the laws are faithfully executed and to do justice to every man. Moreover, while I also concur in the dismissal of the petition, I do so on the additional ground that petitioners have not fulfilled all the requisites for the exercise by this Court of its power of judicial inquiry the power to declare a law unconstitutional. I
The creation and organization of courts inferior to the Supreme Court is a constitutional prerogative of the legislature. This prerogative is plenary and necessarily implies the power to reorganize said courts, and in the process, abolish them to give way to new or substantially different ones. To contend otherwise would be to forget a basic doctrine of constitutional law that no irrepealable laws shall be passed. 1

81
The power to create courts and organize them is necessarily the primary authority from which would thereafter arise the security of tenure of those appointed to perform the functions of said courts. in the natural order of things, therefore, since the occasion to speak of security of tenure of judges arises only after the courts have first been brought into being, the right to security of tenure takes a secondary position to the basic and primary power of creating the courts to provide for a fair and strong judicial system. If the legislature, in the exercise of its authority, deems it wise and urgent to provide for a new set of courts, and in doing so, it feels the abolition of the old courts would conduce more to its objective of improving the judiciary and raising its standard, the matter involved is one of policy and wisdom into which the courts, not even the Supreme Court, cannot inquire, much less interfere with. By this secondary position it has to the primary power of the legislature to create courts, the security of tenure given to the incumbents should not be a legal impediment to the exercise of that basic power of creating the statutory courts which, by necessary implication, includes the power to abolish them in order to create new ones. This primary legislative power is a continuing one, and the resultant right of security of tenure of those appointed to said courts could not bring about the exhaustion of that power. Unquestionably, the legislature can repeal its own laws, and that power can never be exhausted without, as a consequence, violating a fundamental precept of constitutional and representative government that no irrepealable laws shall be passed. If the creation of courts is a legislative prerogative their abolition is, therefore, a matter of legislative intent. it involves the exercise of legislative power, an act of legislation which generally concerns policy in the formation of which the courts have no say Initially, when the legislature creates the courts, it suffers from no limitation arising from the necessity or respecting the security of tenure of judges who are not yea there. This inherent character of fullness and plenitude of the power to create and abolish courts does not change when that same power is once more exercised thereafter, as the need therefor is felt. Which only goes to show that when done in good faith and motivated solely by the good and the wellbeing of the people, the exercise of the power is not meant to be restricted, curtailed, much less exhausted by the socalled judicial security of tenure. The passage of the Judiciary Reorganization Act of 1980 is no more than the exercise of the power vested by the Constitution on the legislative body of the Republic as described above. That power carries with it the duty and responsibility of providing the people with the most effective and efficient system of administration of justice. This is by far of more imperative and transcedental importance than the security of tenure of judges which, admittedly, is one of the factors that would conduce to independence of the judiciary but first of all, a good, efficient and effective judiciary. A judiciary wanting in these basic qualities does not deserve the independence that is meant only for a judiciary that can serve best the interest and welfare of the people which is the most primordial and paramount consideration, not a judiciary in which the people's faith has been eroded, a condition which the security of tenure, in some instances, may even be contributory. In enacting the Judiciary Reorganization Act of 1980, the legislature is presumed to have been motivated by no other objective than to provide the people the kind of judicial machinery that would best serve their interest and welfare, in its belief that the present machinery is falling short of that measure of public service. It should, likewise, be presumed that it has been led to this low estimate of the utility and effectiveness of the present set-up of the judiciary after informing itself, with the facilities at its command, such as the power of legislative investigation, of the actual condition of the courts, particularly as to whether they continue to enjoy the trust, faith and confidence of the public, and what the cause or causes are of their erosion, if not loss, as is the keenly perceptible feeling of the people in general. Responsibility for this more or less extensive slowdown of the delivery of judicial service can be laid on no other than either of the two components of a court the procedural laws or rules that govern the workings of the courts, or the persons executing or applying them or both. When two interests conflict as what had given rise to the present controversy the duty of the legislature to provide society with a fair, efficient and effective judicial system, on one hand, and the right of judges to security of tenure, on the other, the latter must of necessity yield to the former. One involves public welfare and interest more directly and on a greater magnitude than the right of security of tenure of the judges which is, as is easily discernible, more of a personal benefit to just a few, as indeed only the judge affected could seek judicial redress of what he conceives to be its violation. Herein lies the propriety of the exercise of "police power" of the State, if this concept which underlies even the Constitution, has to be invoked as a constitutional justification of the passage of the Act in question. That is, if a conflict between the primary power of the legislature to create courts, and mere consequential benefit accorded to judges and justices after the creation of the courts is indeed perceivable, which the writer fails to see, or, at least, would disappear

82
upon a reconciliation of the two apparently conflicting interests which, from the above disquisition is not hard to find. It is, without doubt, in the essence of the exercise of police power that a right assertable by individuals may be infringed in the greater interest of the public good and general welfare. This is demonstrated in how the rights and freedoms enumerated in the Bill of Rights enjoyable by The entire people, not just by a handful in comparison, are made subject to the lawful exercise of the police power of the State. Viewed, therefore, from the above-mentioned perspective, the general revamp of the judiciary involving both its components the court as an office or institution, and the judges and justices that man them should not find any legal obstacle in the security of tenure of judges. This security, after all, is no more than as provided for all other officials and employees in the civil service of the government in Section 3, Article XII-B of the Constitution which provides: No officer or employees in the civil service shall be suspended or dismissed except for cause as provided by law.
The provision of Article XVII, Section 10 of the Constitution gives to judicial officials no more than a guarantee that their retirement age as fixed in the Constitution shall not be alterable at mere legislative pleasure. The equivalent provision in the 1935 Constitution was inserted for the first time because the retirement age before then was provided merely by statute not by the Constitution. If it comes to their removal or suspension, what gives them constitutional protection is the aforequoted provision which does not contemplate abolition of office when done in good faith, for removal implies the existence of the office, not when it is abolished. Admittedly, as has been held, abolition of office for no reason related to public welfare or for the good of the service, let alone when done in bad faith, amounts to an unlawful removal. 2 The abolition of the courts as declared in the Act as a result of a reorganization of the judiciary, as the Title of the law curtly but announces, can by no means, from any viewpoint, be so branded. And whether by said reorganization, the present would be deemed abolished, as the law expresses such an unmistakable intent, the matter is one for the sole and exclusive determination of the legislature. It rests entirely on its discretion whether by the nature and extent of the changes it has introduced, it has done enough to consider them abolished. To give the Supreme Court the power to determine the extent or nature of the changes as to their structure, distribution and jurisdiction, before the clear intent to abolish them, or to declare them so abolished, is given effect, would be to allow undue interference in the function of legislation. This would be contrary to the primary duty of courts precisely to give effect to the legislative intent as expressed in the law or as my be discovered therefrom.

From the above observation, it would be futile to insist that the present courts would not effectively be abolished by the Act in question. it might be to arrogate power for Us to say that the changes the law brings to the present judicial system, do not suffice for this Court to give effect to the clear intent of the legislative body. Where would the agrarian courts, the circuit criminal courts, the JDRC's be in the judicial structure as envisioned by the law? Are they not abolished by merger with the regional trial courts, which by such merger, and by the other changes introduced by the law, would make said courts different from the present Courts of First Instance which, as a consequence, may then be considered abolished Integrated as the present courts are supposed to be, changes somewhere in the judicial machinery would necessarily affect the entire system. The fact that the Supreme Court may specially assign courts to function as the special courts just mentioned, does not mean that the changes wrought are only superficial or "cosmetic" as this term has been used so often in the oral argument. Without the new law, these courts will remain fixed and permanent where they are at present. Yet in the course of time, the need for their independent existence may disappear, or that by changed conditions, where they are needed at present at a certain place, the need for them may be somewhere else in later years, if maximum benefit at the least expense is to be achieved, as always should be a most desirable goal and objective of government. Demonstrably then, the abolition of the courts is a matter of legislative intent into which no judicial inquiry is proper, except perhaps if they intent is so palpably tainted with constitutional repugnancy, which is not so in the instant case. We have, therefore, no occasion, as earlier intimated, to speak of removal of judges when the reorganization of the judiciary would result in the abolition of the courts other than the Supreme Court and the Court of Tax Appeals. Hence, the provision of the Constitution giving to the Supreme Court power to dismiss a judge by a vote of eight justices does not come into the vortex of the instant controversy. Its possible violation by the assailed statute cannot happen, and may, therefore, not constitute an argument against the constitutionality of the law.
Former Justice Barrera, in a speech before the Philippine Bar Association, 3 impliedly indorsed the judicial revamp when he enumerated the qualities of a good judge that the appointing power should consider in making new appointments to the judiciary upon its reorganization pursuant to the questioned Act. The words of the eminent jurist may well reflect the favorable reaction of

83
the public in general to what the Act aim to achieve in the name of good and clean government. The present judicial incumbents, who have not in any way, by their acts and behavior while in office, tarnished the good image that the judiciary should have, therefore, have no cause for apprehension that what they are entitled to under the Constitution by way of security of tenure wig be denied them, considering the publicly known aim and purpose of the massive judicial revamp, specially as cherished with deep concern by the President who initiated the move when he created the Judiciary Reorganization Committee to recommend needed and appropriate judicial reforms.

If the only obstacle to a verdict in favor of constitutionality of the law is its possible effect of impairing the security of tenure of the incumbents, We may have the following facts to consider: 1. Under the 1973 Constitution all incumbent judges and justices may continue in office until replaced or reappointed by the President. As to those judicial officials, no security of tenure, in the traditional concept, attaches to their incumbency which is, in a real sense, only a holdover tenure. How the President has exercised this immense power with admirable restraint should serve as the strongest guarantee of how justice and fairness will be his sole guide in implementing the law. 2. As to the rest of the incumbents, they are all appointees of Our present President, and he should feel concerned more than anyone else to protect whatever rights they may rightfully claim to maintain their official standing and integrity. They need have no fear of being ignored for no reason at all, much less for mere spirit of vindictiveness or lack of nobility of heart. From the foregoing, it would become apparent that only in the implementation of the law may there possibly be a taint of constitutional repugnancy as when a judge of acknowledged honesty, industry and competence is separated, because an act of arbitrariness would thereby be committed, but the abolition of the courts as decreed by the law is not by itself or per se unconstitutional. Consequently, the law, the result of serious and concerned study by a highly competent committee, deserves to be given a chance to prove its worth in the way of improving the judiciary. If in its implementation, any one, if at all, feels aggrieved, he can always seek judicial redress, if he can make out a case of violation of his right of security of tenure with uncontrovertible clarity, as when the separation is very arbitrary in the peculiar circumstances of his case, for an act of arbitrariness, under any constitution, is unpardonable. This petition should also be dismissed for being premature, as is the stand of Justice Aquino. The petition asks this Court to exercise its power of judicial inquiry, the power to declare a law unconstitutional when it conflicts with the fundamental law (People vs. Vera, 65 Phil. 56). This power has well-defined limits, for it can be exercised only when the following requisites are present, to wit: (1) There must be an actual case or controversy; (2) The question of constitutionality must be raised by the proper party; (3) He should do so at the earliest opportunity, and (4) The determination of the constitutionality of the statute must be necessary to a final determination of the case. I am of the opinion that the petition does not present an actual controversy nor was it filed by the proper parties. The main ground for which the constitutionality of the Judiciary Reorganization Act of 1980 is assailed is that it is violative of the security of tenure of justices and judges. The only persons who could raise the question of constitutionality of the law are, therefore, the actual incumbents of the courts who would be separated from the service upon the abolition of the courts affected by the law, on the theory as advanced by petitioners that their judicial security of tenure would be violated. Olongapo City Judge de la Llana, the only judge among the petitioners, has not been separated from the service. Nor is his separation already a certainty, for he may be appointed to the court equivalent to his present court, or even promoted to a higher court. Only when it has become certain that his tenure has been terminated will an actual controversy arise on his allegation of a fact that has become actual, not merely probable or hypothetical. The present petition may neither be allowed as a taxpayer suit. A taxpayer may bring an action to raise the question of constitutionality of a statute only when no one else can more appropriately bring the suit to defend a right exclusively belonging to him, and. therefore, would localize the actual injury to his person, and to no other. For a "proper party" to invoke the power of judicial inquiry, as one of the requisites in the exercise of such power, does not mean one having no better right, one more personalized, than what he has as a member of the public in general. With the incumbent judges

84
undoubtedly being the ones under petitioners' theory, who would suffer direct and actual injury, they should exclude mere taxpayers who cannot be said to suffer as "direct" and "actual" an injury as the judges and justices by the enforcement of the assailed statute, from the right to bring the suit. The validity of the foregoing observation becomes more evident when We consider that only after the fate of the present incumbents is known, whether they have been actually separated or not, would the present courts be declared abolished. For the law clearly continues their existence until all the new courts have been filled up with new appointments, or at least such number as would be equal to the number of actual incumbents, and they are the very courts to which they may lay claim to the right to continue therein, so that the status of each and everyone of them has thereby been made certain. Only then, upon the actual abolition of the courts, may there possibly be a violation of the security of tenure, as contented, that would give rise to an "actual controversy" in which the 6 improper party" can be no other than the judges who feel aggrieved by their non- appointment to the new courts. It would, therefore, not be proper to declare the law void at this stage, before it has even been given a chance to prove its worth, as the legislature itself and an those who helped by their exhaustive and scholarly study, felt it to be an urgent necessity, and before any of the proper parties who could assail its constitutionality would know for a fact, certain and actual, not merely probable or hypothetical, that they have a right violated by what they could possibly contend to be an unconstitutional enforcement of the law, not by a law that is unconstitutional unto itself. I am, therefore, for giving the law a chance to be put into application so as not to douse great popular expectations for the courts to regain their highest level of efficiency had reputation for probity. Inevitably, this is to be so since only when the law is fully implemented will all the courts affected be declared abolished, undoubtedly to avoid an interregnum when the country is without any court, except the Supreme Court, the Court of Tax Appeals and the Sandigan. Only then will it be known whether an actual controversy would arise because any of the incumbents have been left out in the restructured judiciary. There would then be also a proper party to assail the constitutionality of the law, conformably to the conditions requisite for the exercise of the power of judicial inquiry which by their stringent character, together with the constitutional prescription of a comparatively higher vote to declare a law unconstitutional, reveal a salutary principle of government that a law should, by all reasonable intendment and feasible means, be saved from the doom of unconstitutionality, the rule corollary thereto being that if a law is susceptible to two interpretations, one of which would make it constitutional, that interpretation should be adopted that will not kill the law.
It is to adhere to the above principles that the submission is made herein, that while in the implementation of the law, constitutional repugnancy may not entirely be ruled out, a categorical ruling hereon not being necessary or desirable at the moment, the law itself is definitely not unconstitutional. 4 Any of the incumbent judges who feel injured after the law shall have been implemented has adequate remedy in law, with full relief as would be proper. But surely, the benefits envisioned by the law in the discharge of one of the basic duties of government to the people the administration of justice should not be sacrificed, as it would be, if the law is, as sought in the present petition, declared void right now, on the claim of a few of being allegedly denied a right, at best of doubtful character, for the claim would seem to rest on an unsupportable theory that they have a vested right to a public office. Just one more point. The law in question is not self-executing in the sense that upon its effectivity, certain judges and justices cease to be so by direct action of the law. This is what distinguishes the Act in question from R.A. No. 1186 involved in the Ocampo case, 5 which by its direct action, no act of implementation being necessary, all the judges whose positions were abolished, automatically ceased as such. The Act in question, therefore, is not as exposed to the same vulnerability to constitutional attack as R.A. No. 1186 was. Yet by the operation of the Constitution with its wise provision on how a law may be declared unconstitutional, R.A. No. 1186 stood the test for it to be enforced to the fullness of its intent, which was, as in the law under consideration, Identified with public interest and general welfare, through a more efficient and effective judicial system as the Judiciary Reorganization Act of 1980 seeks to establish.

Hence, the constitutionality of the law should not be assailed, and the law itself, striken down, on the ground that some judges or justices may be removed or separated in violation of their security of tenure. The law does not directly operate with Chat effect. It is in how the law would be implemented that this feared eventuality may or may not occur. We would then be killing the law on a mere speculation if We do so at this stage. This would be an injudicious act done in reckless

85
disregard of the safeguards built around a law to defend it when its constitutionality is attacked; first the presumption that a law is constitutional; second when a law is susceptible to two interpretations one that would make it constitutional, the other, unconstitutional, the former should be adopted; and third, the Constitution itself which ordains that a law may not be declared unconstitutional except on the vote of at least ten (10) members of the Supreme Court, more than what is required for an ordinary decision of the Court en banc. This is not to mention the stringent requisites for the exercise of the power of judicial inquiry as already adverted to, all designed to save the law from the dire fate of unconstitutionality. To the writer, the question before this Court is a simple matter of choosing between protecting some judges from possible separation, as the implementation of the law to achieve its primary purpose of improving the judiciary may have to result in, or serving the interest of the entire society through an honest, efficient and effective judiciary. For, it is unthinkable that what is for the good of the people as a whole could have been meant by the Constitution to be sacrificed for the sake of only the few. The greatest good for the greatest number is an unwritten rule, more firm and enduring than any of the postulates spread in our written Constitution. This, I might say, is the main theme of this separate opinion, otherwise expressed in the well-known and time-honored maxim "Salus populi establish suprema lex."

MELENCIO-HERRERA, J., concurring: There is unqualified adherence on my part to the dismissal of the Petition filed in this case. If I am writing this separate concurrence, it is merely to state certain views I entertain in regards to the constitutionality of Batas Pambansa Blg. 129. The controversy in this case involves two constitutional provisions. Article X, Section 1, of the Organic law provides that the legislative has the power to establish inferior Courts by law. Section 7 of the same Article reads: SEC, 7. The Members of the Supreme Court and judges of inferior courts shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. The Supreme Court shall have the power to discipline judges of inferior courts and, by a vote of at least eight Members order their dismissal. There should be no conflict Between the two provisions. Both should be harmonized. 1. a) It is a fundamental proposition that the legislative power to create Courts ordinarily includes the power to organize and to reorganize them, and that the power to abolish Courts is generally coextensive with the power to create them. The power to abolish was not intended to be qualified by the permanence of tenure (Opinion of Chief Justice Ricardo Paras in Ocampo vs. Secretary of Justice, 51 O.G. 147 [1955], citing McCulley vs. State, 53 SW 134; Halsey vs. Gaines 2 Lea 316). The right of Judges to hold office during good behavior until they reach the age of 70 years, or become incapacitated to discharge the duties of their office, does not deprive Congress of its power to abolish, organize or reorganize inferior Courts (Brillo vs. Enage, 94 Phil. 732, 735, citing Zandueta vs. de la Costa, 66 Phil. 615; 42 Am. Jur., Pub. Officer, 904-5). Judges of those Courts take office with that encumbrance and knowledge. The legislative power to create a court carries with it the power to abolish it. When the court is abolished any unexpired term is abolished also. The judge of such court takes office with that encumbrance and knowledge. Perkins v. Corbin, 45 Ala 103, 6 Am. Rep. 698; State, ex rel. Thomas v. Gunter, 170 Ala. 165, 54 So 283, et al." The importance and the imperative of maintaining the independence of the Judiciary is undisputed. At the same time, the power of Congress under the Constitution cannot be abridged. For, in the last analysis, it is not the security of tenure per se that is the only safeguard to the independence of the Judiciary. It is the character and the mettle of the Judges who sit on the Bench. Has not the impression been created in the public and that there are those who have abused the prerogatives of their judicial position knowing that they are untouchables by virtue of the permanence of their tenure b) A distinction should be made between tenure of Judges and tenure of Courts. Section 1 heretofore mentioned refers to the "Judiciary" as a fundamental department of Government. Section 7 quoted above refers to the tenure of office of "individual" Judges (inclusive of Justices of inferior Courts that is to say, tenure of office is a matter concerning the

86
individual Judge. This "individuality" character of Section 7 is supported by the clause that the Supreme Court has the power to discipline individual judges of inferior Courts. A legislature is not bound to give security of tenure to Courts. Courts can be abolished. In fact, the entire judicial system can be changed. If that system can no longer admit of change, woe to the wheels of progress and the imperatives of growth in the development of the Judiciary. To hold that tenure of Judges is superior to the legislative power to reorganize is to render impotent the exercise of that power. It may even be stated that, under Section 7, supra, Judges are entailed to their Courts, from which they cannot be separated before retirement age except as a disciplinary action for bad behavior. Under Section 1, Courts are not entailed to their Judges, because the power of the legislative to establish inferior Courts presupposes the power to abolish those Courts. If an inferior Court is abolished, the Judge presiding that Court will necessarily have to lose his position because the abolished Court is not entailed to him. c) The constitutional guarantee of tenure of Judges applies only as their Courts exist. As long as those Courts exist, the Judges cannot be ousted without just cause; that is the extent of the constitutional provision relative to security of tenure of Judges. Upon declaration of the completion of the reorganization as provided for in the Reorganization Act, the affected Courts "shall be deemed automatically abolished There being no Courts, there are no offices for which tenure of Judges may be claimed. By the abolition of those offices, the rights to them are necessarily extinguished (Manalang vs. Quitoriano, 94 Phil. 903 [1954]). 2. I am satisfied that the challenged law was enacted by the Batasang Pambansa in response to an urgent and pressing public need and not for the purpose of affecting adversely the security of tenure of all Judges or legislating them out to the detriment of judicial independence. It should riot be said of the Batasang Pambansa that its power of abolition of Courts has been used to disguise an unconstitutional and evil purpose to defeat the security of tenure of Judges. The Judiciary Reorganization Act of 1981 sufficiently complies with the bona fide rule in the abolition of public office, as clearly explained in the main opinion. Besides, every presumption of good faith in its actuations must be accorded a coordinate and coequal branch of government, supreme within the limits of its own sphere, until that presumption is clearly overcome. There is no showing that the Reorganization Act was motivated for personal or political reasons as to justify the interference by the Court (Garvey vs. Lowell, 199 Mass, 47, 85 N.E. 182, 127 A.S.R. 468; State vs. Eduards, 40 Mont. 287; 106 Pac. 695, 19 R.C.L. 236; Llanto vs. Dimaporo, 16 SCRA 599 [1966]). Public interest and public good, as the legislative body views it, must be balanced with tenure of Judges, which is an individual right. Reverting to Section 1 and Section 7, supra, the former is the weightier, because the "Judiciary" is of more importance to the welfare of the country than the tenure of office of an individual Judge. If a Judge is removed without cause there can be damage to the public welfare to some extent, but maintenance of a Court that does not meet the requirements of progressive Government, can cause incalculable prejudice to the people. 3. Nor does a conflict exist with the power of discipline vested in the Supreme Court by the present Constitution reading: the Supreme Court shall have the power "to discipline Judges of inferior Courts, and, by a vote of at least 8 members, order their dismissal Absent the Court, it would be futile to speak of the Supreme Court's power to discipline. Thus, where the legislature has willed that the Courts be abolished, the power to discipline cannot pose an obstacle to the abolition. The power to discipline can come into play only when there is removal from an existing judicial office but not when that it office is abolished. The reorganization of the judicial system with the abolition of certain Courts is not an exercise of the power to discipline the Judges of the abolished Courts. It is of significance to note that the power to dismissal vested in the Supreme Court by the 1973 Constitution is delimited by its power to discipline. Absent any need for discipline and the power to dismiss does not exist. Being circumscribed in scope, it may well be asked: does the grant of the power of discipline and dismissal in the Supreme Court deprive the executive of the power of removal? Is it not more in keeping with the allocation of powers in our government to state that the Supreme Court shares its power to dismiss with the executive power of removal? For is not the power of removal basically executive in nature, as an incident to the power of appointment, which is the prerogative of the Chief Executive alone As in the case of appointments, Section 5 (6), Article X of the Constitution provides that the Supreme Court shall appoint its officials and employees. However, is not this power shared with the power of appointment of the executive who appoints some of the Court officials These questions could lend themselves to an in-depth study in the proper case.

87
4. The abolition would be no deprivation either of due process of law. A public office cannot be regarded as the "property " of the incumbent. A public office is not a contract (Segovia vs. Noel, 47 Phil. 543 [1925]). A public office is a public trust (Section 1, Article XIII. 1973 Constitution). It is a privilege in the gift of the State (Brown vs. Russell, 166 Mass. 14, 43 NE 1005, 32 LRA, 253 cited also in Taada & Carreon, Political Law of the Philippines, Vol. 2, p. 537). The officers are the servants of the people and not their rulers (22 R.C.L. 378-379, cited in Martin, Administrative Law, Law on Public Officers and Election Law, p. 112, 1970 ed.). Besides, it bears stressing that there is no removal from office but abolition of the office itself. 5. The questioned statute is in keeping with major reforms in other departments of government. "The thrust is on development." It is "the first major reorganization after four generations." It does not provide for a piecemeal change, which could be ineffective. It goes to the roots and does not just scratch the surface of our judicial system. Its main objectives are an improved administration of justice, the "attainment of more efficiency in the disposal of cases, a reallocation of jurisdiction, and a revision of procedures which do not tend to the proper meting out of justice." These aims are policy matters of necessity in the pursuit of developmental goals within the Judiciary. 6. The Reorganization Act reorganizing the entire judicial system excluding the Supreme Court, which is the only constitutional Court, and the Sandiganbayan. It envisages institutional reforms in the Philippine judiciary. It does not simply change the names of the Courts. The facts herein are dissimilar from those in Brillo vs. Enage (94 Phil. 732 [1954]) where the position of Justice of the Peace, although ostensibly abolished, was merely changed to Municipal Judge after the municipality of Tacloban was converted into a city with its own charter. Significant among the institutional changes and procedural reforms are: The Intermediate Appellate Court This Court is now constituted into ten (10) divisions instead of fifteen (15), five members composing each division, and a majority vote of three members being needed for a decision. This obviates the cumbersome procedure, in case of dissent, of assigning two other members to compose a "division of five". It also allows flexibility in that any three members of a division, arriving at unanimity, can promulgate a decision. Now provided for is specialization into four (4) Civil Cases Divisions, two (2) Criminal Cases Divisions and four (4) Special Cases Divisions. The specialization is expected to contribute to the expeditious disposal of cases. The Court has been given original jurisdiction to issue Writs of mandamus, prohibition, certiorari, habeas corpus, quo warranto and auxiliary writs or processes whether or not in aid of its appellate jurisdiction. This would undoubtedly ease the burden of the Supreme Court where numerous such cases are filed daily. It has exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards of quasi-judicial agencies, instrumentalities, boards or commissions, except those falling within the exclusive appellate jurisdiction of the Supreme Court in accordance with the Constitution. The Intermediate Appellate Court would now have the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues raised in cases falling within its original and appellate jurisdiction, including the power to grant and conduct new trials or further proceedings (Sec. 9). This does away with the delays attendant to the remand of cases to the lower trial Courts. Regional Trial Courts There are now thirteen (13) Judicial Regions, the same as the present administrative and Batasang Pambansa Regions, instead of sixteen (16) Judicial Districts. A Judge is appointed to a region, which is his official station. This ensures mobility since a Judge may be assigned anywhere within the Region without applying the constitutional limitation of six months. Additionally, -it can remedy temporary inequalities of caseloads in trial Courts. Specialized Courts are integrated into the Regional Trial Courts. Thus, Regional Trial Courts would try all cases within its jurisdiction unless special cases are assigned to them, in which case, they remain as Branches of Regional Trial Courts.

88
Special procedures and technical rules governing special Courts will continue to remain applicable in Branches assigned those special cases. Metropolitan Trial Courts There is one Metropolitan Trial Court with several Branches for large urban areas. The appointment of Judges would be to a Metropolitan Trial Court although a Judge may be assigned by the Supreme Court to any Branch of the Metropolitan Trial Court as demanded by the exigencies of the service. The Supreme Court may designate certain Branches of said Courts to exercise special jurisdiction over certain cases, unlike the present set-up where special jurisdiction applies only to cases of traffic violations. Municipal Trial Courts/Municipal Circuit Trial Courts Municipal Trial Courts may now be designated by the Supreme Court to exercise special jurisdiction over certain cases, thereby resulting in overall flexibility. They can also be circuitized with those in cities not forming part of metropolitan areas. One notable change between the old and the new set up is that Judges of these Courts will now be Presidential appointees unlike presently where the incumbent Judges are merely designated by the Supreme Court in an Administrative Order to sit in existing Municipal Courts and Municipal Circuit Courts. 7. There are innovative features in the Act that commend themselves: a) The confusing and illogical areas of concurrent jurisdiction between trial Courts have been entirely eliminated. b) Under Section 39, there is a uniform period for appeal of fifteen (15) days counted from the notice of the final order, resolution, award, judgment, or decision appealed from. A record on appeal is no longer required to take an appeal. The entire original record is now to be transmitted. c) Under Section 40, in deciding appealed cases, adoption by reference of findings of fact and conclusions of law as set forth in the decision, order, or resolution appealed from, is also provided for. This will expedite the rendition of decisions in appealed cases. d) Section 42 provides for "a monthly longevity pay equivalent to 5% of the monthly basic pay for Justices and Judges of the courts herein created for each five years of continuous, efficient, and meritorious service rendered in the Judiciary, Provided that, in no case shall the total salary of each Justice or Judge concerned, after this longevity pay is added, exceed the salary of the Justice or Judge next in rank." Thus, Justices and Judges who may not reach the top, where unfortunately there is not enough room for all, may have the satisfaction of at least approximating the salary scale of those above him depending on his length of service, 8. But while the law itself as written is constitutional, the manner in which it will be administered should not be tainted with unconstitutionality (Myles Salt Co. vs. Board of Commrs., 239 US 478, 60 L. Ed. 392, 36 Sct 204). To obviate the possibility of an unconstitutional exercise of power the following safeguards are recommended and/or expected to be undertaken: a) The President can be expected to indicate a reasonable time frame for the completion of the reorganization provided for in the Act and the issuance of the corresponding implementing Order.

89
b) Appointments and their effectivity should be simultaneous with, or as close as possible, to the declaration by the President of the completion of the reorganization under Section 44 to avoid any detriment to the smooth and continuous functioning of the judicial machinery. c) The services of those not separated should be deemed uninterrupted, as recommended by the Committee on Judicial Reorganization (Article XI of its Report). 9. For the speedy implementation of the law, the Supreme Court can be expected to submit to the President within thirty (30) days from the date of finality of its Decision the staffing pattern for all Courts required by Section 43. I am constrained to disagree with the suggestion of one of the amici curiae that the staffing pattern be made to include the names of Judges. The staffing pattern for Judges is already clearly and explicitly provided in the law itself which enumerates the various Judges and Justices in their hierarchical order. Furthermore, to include the superior positions of Judges would depart from the traditional concept of a staffing pattern, which refers more to personnel organization and corresponding salaries of inferior employees. It is also constitutionally objectionable in that it would interfere with the prerogative of appointment intrinsically executive in nature (Guevara vs. Inocentes, 16 SCRA 379 [1966]; Government of the Philippines vs. Springer, 50 Phil. 259 [1927]). The President may not be deprived of, nor be limited in, the full use of his discretion in the appointment of persons to any public office. Nothing should so trench upon executive choice as to be, in effect, judicial designation. 10. A word of explanation. If I had resolved not to inhibit myself in this case upon motion filed by petitioners, it was because the Committee on Judicial Reorganization, of which I was privileged to be a member, confined its work to the recommendation of options and guidelines in the task of reorganization. The Committee had no part whatsoever in the drafting of the bill nor in the public hearings conducted. In fact, some of its recommendations like the circuitization or regionalization of the Intermediate Appellate Court, the appellation of members of the Judiciary, the confinement of the jurisdiction of the Intermediate Appellate Court merely to appellate jurisdiction, the adoption of the system found in the United Kingdom and in Commonwealth countries of having a Court of general jurisdiction with trial and appellate divisions, were not availed of in the final Act. 11. Lastly, but by no means the least, I entertain no doubt that reliance can be placed on the good faith of the President that all the deserving, upon considerations of "efficiency, integrity, length of service and other relevant factors shall be appointed to a strengthened and revitalized judicial system in the interest of public service; that appointments will not be unduly delayed; and that appointees will be evaluated thoroughly to ensure quality and impartiality in the men and women who will keep vigil over our judicial ramparts.

ERICTA, J., concurring: I concur in the view that the Judiciary reorganization law is not unconstitutional. It does not violate the principle of security of tenure of judges. The Constitution grants to the Batasang Pambansa the power to create courts inferior to the Supreme Court (Article X, Section 1). All existing inferior courts were created by law. No law is irrepealable. The power to create an office includes the power to abolish the same. (Urgelio vs. Osmea 9 SCRA 317; Maza vs. Ochave, 20 SCRA 142) Security of tenure cannot be invoked when there is no removal of a public officer or employee but an abolition of his office. (Manalang vs. Quitoriano, 94 Phil. 903; Cruz vs. Primicias, 23 SCRA 998; Baldoz vs. Office of the President, 78 SCRA 354, 362) A distinction should be made between removal from office and abolition of an office. Removal implies that the office subsists after ouster, while, in abolition, the office no longer exists thereby terminating the right of the incumbent to exercise the rights and duties of the office. (Canonigo vs. Ramiro, 31 SCRA 278) The power of the legislative branch of the government to abolish courts inferior to the Supreme Court has long been established. (Ocampo vs. Secretary of Justice, 51 O.G. 147). What is only needed is that the abolition passes the test of

90
good faith. it need only be shown that said abolition of the courts is merely incidental to a bona fide reorganization. (Urgelio vs. Osmea supra.) It is unthinkable to impute bad faith to the Presidential Committee on Judicial Reorganization composed of four (4) distinguished members of the Supreme Court, the Minister of Justice and the Deputy Minister of Justice, and to the members of the Batasang Pambansa whose combined efforts after a careful study and deliberation resulted to the enactment of a bill now signed into law as Batasang Pambansa Blg. 129. In his sponsorship speech, Justice Ricardo C. Puno declared the objectives of the Judiciary Reorganization Law to be the following: (1) the attainment of more efficiency in the disposal of cases; (2) the improvement in the quality of decisions by the courts that will result from the easing of court dockets; and (3) structural changes to meet the exigencies of present day Philippine Society and of the foreseeable future. Admittedly, in the implementation of the law, some Judges and Justices may be adversely affected. But in a conflict between public interest and the individual interest of some Judges and Justices, the public weal must prevail. The welfare of the people is the supreme law. The implementation of the law will entail appointments to the new courts. The power of appointment is the exclusive prerogative of the President. The implementation of the law should be left exclusively to the wisdom, patriotism and statesmanship of the President.

PLANA, J., concurring: As the lawmaking body has the power to create inferior courts and define, prescribe and apportion their jurisdiction, so it has the power to abolish or replace them with other courts as long as the act is done in good faith and not for the purpose of attaining an unconstitutional end. Good faith has thus become the crucial issue in the case at bar. Upon an examination of the legislative history of Batas Pambansa 129, as has been done in the main opinion, it is manifest that actual, not merely presumed good faith attended its enactment. On this basis, I concur in the opinion penned by the learned Chief Justice, qualified only by the following observations: 1. Executive consultation with the Supreme Court. I believe the President is under no obligation to consult with the Supreme Court; and the Supreme Court as such is not called upon to give legal advice to the President. Indeed, as the Supreme Court itself has said, it cannot give advisory opinions (Bacolod Murcia Planters' Asso., Inc. vs. Bacolod Murcia milling Co., 30 SCRA 67; NWSA vs. Court of Industrial Relations, 90 SCRA 629) even to the President. In the drafting of the present Constitution, there was an attempt to vest the Supreme Court with the function of giving advisory opinions. The framers of the Constitution, however, did not see fit to adopt the proposal. If the President should consult the Supreme Court on the implementation of Batas Pambansa 129 and the Supreme Court should give its advice (leaving aside the question of procedure), I believe the President would be free to follow or disregard the advice; but, in either case, there would be no guarantee that the implementing action would be upheld in one case or stricken down in the other. 2. Undue delegation of legislative powers. The petitioners have also assailed the constitutionality of Batas Pambansa 129 on the ground that a provision thereof (regarding fixing of compensation and allowances for members of the Judiciary) constitutes an undue delegation unto the President of legislative power. As pointed out in the main opinion, the legislature has provided ample standards or guidelines for the implementation of the delegated power, which makes the delegation inoffensive. I would like to add however some observations on the doctrine of undue delegation of legislative power.

91
Under the old Constitution, when the abiding rule was separation of legislative and executive powers, there was good reason to maintain the doctrine of non-delegation of legislative power. Otherwise, the principle of separation of governmental powers could be negated via unbridled delegation of legislative power. The 1973 Constitution has however radically changed the constitutional set-up. There is now a commingling or fusion of executive and legislative powers in the hands of the same group of officials. Cabinet members play a leading role in the legislative process, and members of the Batasan actively discharge executive functions. The Prime Minister indeed must come from its ranks. Under the circumstances, there is really not much sense in rigidly upholding the principle of non-delegation of legislative power, at least vis-a-vis the Executive Department. In a very real sense, the present Constitution has significantly eroded the hoary doctrine of non-delegation of legislative power, although it has retained some provisions of the old Constitution which were predicated on the principle of non-delegation, this time perhaps not so much to authorize shifting of power and thereby correspondingly reduce the incidence of "undue" delegation of legislative power, as to avert the abdication thereof. In times of war or other national emergency, the Batasang Pambansa may by law authorize the President for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Batasang Pambansa, such powers shall cease upon its next adjournment. (Art. VIII, Sec. 15.) The Batasang Pambansa may by law authorize the President to fix within specified this and subject to such stations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts. [Ibid, Sec. 17(2).]

TEEHANKEE, J., dissenting:

Undoubtedly, no more crucial and transcendental issue of such magnitude has confronted the Philippine judiciary than in the present case. The challenged Act, Batas Pambansa Blg. 129 by its title would reorganize all existing courts (except the ninemember Sandiganbayan 1 and the three- member Court of Tax Appeals) and upon declaration by the President of the completion of the reorganization would unprecedentedly deem all the said courts "automatically abolished en masse and "the incumbents thereof shall cease to hold office." 2 The total abolition involves a total of 1,663 judicial positions with 1,180 incumbent judges and 483 vacancies) as of January 26, 1982 and the Act would effect an increase of 230 judicial positions raising the total of judicial positions to be filled by new appointments to 1,893. Notwithstanding the great deference due to enactments of the Batasan, I regretably find myself unable to join the ranks of my esteemed colleagues in the majority who uphold the constitutionality of the Act and have voted to dismiss the petition, for the following main considerations and reasons: 1. I go by the ruling of the numerical majority of seven Justices (namely, Pablo, Cesar Bengzon, Montemayor, Jugo, Bautista, Roberto Concepcion and J.B.L. Reyes, JJ.) in the leading 1955 case of Ocampo 3 who fell short by one vote to reach the constitutionally required 2/3 majority (at the time 8 out of an 11-member Supreme Court) to declare unconstitutional and invalid section 3 of Republic Act 1186 abolishing the positions of 18 judges-at-large and 15 cadastral judges and removing or legislating out the incumbent judges from office as against the contrary vote of a minority of 4 Justices (namely, then Chief Justice Paras and Padilla, Alex Reyes and Labrador, JJ.) with the paradoxical situation that the last three named Justices voted for the validity of the Act as a remedial measure that abolished said positions without permanent station which subjected them to a rigodon de jueces without the consent of the Supreme Court, which they considered as "repulsive to an independent judiciary" and violative of an express prohibitory provision of the 1935 Constitution while Justice Alex Reyes conceded that otherwise he would go with the majority that "Congress may not, as a general rule, abolish a judicial post without allowing the incumbent to finish his term of office."

2. As then Associate, later Chief Justice Cesar Bengzon remarked in his separate opinion "(T)he [adverse] outcome of this litigation [sanctioning the ouster from office of the ten petitioners who were presiding different Courts of First Instance, some as judges-at-large, others as cadastral judges, upon the enactment on June 19, 1954 of R.A. 1186 abolishing the positions of judges-at large and cadastral judges] is apt to revive the speculation whether wittingly or unwittingly the Constitution has further weakened the usually weak judicial department because of its 'innovative' requirement of a 2/3 majority vote of the Supreme Court to declare a statute unconstitutional, and 'never in our history has such a number of judges of first instance [totalling 33 positions] been ousted through judicial reorganization.

92
His rationale that the express constitutional guaranty of security of tenure of judges "during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office" 4 must prevail over the implied constitutional authority to abolish courts and to oust the judges despite their constitutionally-secured tenure bears repeating thus:

A careful analysis will perceive that whereas petitioners invoke an express guaranty or positive definition of their term of office, the respondents rely on implied authority to abolish courts and the positions of the respective judges. Accurately stated, respondents' defense rests on a second inference deduced from suchimplied power, because they reason out thusly: Congress has express power to establish courts; therefore it has implicit power to abolish courts and the positions of judges of such abolished courts (first inference); and therefore (second inference) Congress likewise has power to eject the judges holding such positions. Resulting juridical situation. The implied authority invoked by respondents collides with the express guaranty of tenure protecting the petitioners. Which shall prevail Obviously the express guaranty must override the implied authority. "Implications can never be permitted to contradict the expressed intent or to defeat its purpose." xxx xxx xxx
But the collision may he should be avoided, and both sections given validity, if one be considered a proviso or exception to the other. In other words, under the Constitution the Congress may abolish existing courts, provided it does not thereby remove the incumbent judges; such abolition to take effect upon termination of their incumbent The fundamental provisions on the matter are thereby coordinated and harmonized' as Justice Laurel suggested in his concurring opinion in Zandueta v. De la Costa. To bring about reconciliations is the great work of jurists. (Cardozo, Paradoxes of Legal Science, p. 6) 5 3. This reasoning that the express guaranty of tenure protecting incumbent judges during good behavior unless removed from office after hearing and due process or upon reaching the compulsory retirement age of seventy years must override the implied authority of removing by legislation the judges has been further strengthened and placed beyond doubt by the new provisions of the 1973 Constitution that transferred the administrative supervision over all courts and their personnel from the Chief Executive through the then Secretary of Justice to the Supreme Court 6 and vested in the Supreme Court exclusively "the power to discipline judges of inferior courts and, by a vote of at least eight members, order their dismissal," 7 Which power was formerly lodged by the Judiciary Act in the Chief Executive. As former Chief Justice Bengzon stressed in his opinion in Ocampo, the 1934 Constitutional Convention "frowned on removal of judges of first instance through abolition of their offices or reorganization," citing Professor Jose Aruego's observation that the security of judges' tenure provision was intended to "help secure the independence of the judiciary" in that "during good behavior, they may not be legislated out of office by the law-making body nor removed by the Chief Executive for any reason and under the guise of any pretense whatsoever; they may stay in office until they reach the age of seventy years, or become incapacitated to discharge the duties of their office. (Aruego, The Framing of the Philippine Constitution, Vol. 11, pp. 718-719)" He further cited Aruego's report that a proposed amendment to the effect that the prohibition against transfers of judges to another district without the approval of the Supreme Court 8 "should not be applicable to a reorganization of tribunals of justice or of districts, but the amendment was defeated easily without debate"9 and logically concluded that "(N)ow, there . before, having vetoed the transfer of judges thru a re-organization, the Convention evidently could not have permitted the removal of judges thru re-organization.

Now, if the framers of the 1973 Constitution wished to dispel the strong doubts, to say the least in the light of the 7 to 4 vote in the Ocampo case against removal of incumbent judges through legislative action by abolition of their courts, then they would have so clearly provided for such form of removal in the 1973 Constitution, but on the contrary as already stated they ruled out such removal or ouster of judges by legislative action by vesting exclusively in the Supreme Court the power of discipline and removal of judges of all inferior courts. 4. This being so, the fundamental point emphasized by former Chief Justice Bengzon that abolition of the 33 judicial positions in the Ocampo case was "merely an indirect manner of removing the petitioners-judges" while the "positions [that] were eliminated . . . were in fact substituted or replaced by other positions of judges" applies with greater force in the case at bar which involves an unprecedented total "abolition," thus: "(C)all it reorganization, or legislation or removal or abolition, this law disregards the constitutional assurance that these judges, once appointed, shall hold office during good behavior ... [unless incapacitated and until retirement].

93
The abolition of their offices was merely an indirect manner of removing these petitioners. Remember that on June 19, 1954, there were 107 judges of first instance, district judges, judges at-large and cadastral judges (Rep. Act 296). After the passage of Republic Act No. 1186 there were 114 positions of judges of first instance. There was no reduction there was increase in the number of judges, nor in the number of courts. The positions of Judges-at-Large and Cadastral Judges were eliminated; but they were in fact substituted or replaced by other positions of judges; or if you please, there was a mere change of designation from 'Cadastral Judge or Judge at large to district judge Hence it should be ruled that as their positions had not been 'abolished' de facto, but actually retained with another name, these petitioners are entitled to remain in the service. (Brillo v. Enage, G.R. No. L-7115, March 30, 1954.) For it is not permissible to effect the removal of one judge thru the expediency of abolishing his office even as the office with same power is created with another name. (Brillo v. Enage, Malone v. Williams, 118 tenn. 391, Gibbe's Case 4 A.L.R. p. 211). In this view of the picture, we believe, Congress could have, and should haveas suggested by Secretary Tuazon during the hearings in Congress directed in said Republic Act No. 1186 that 'the present judges-at-large and cadastral judges shall become district judges presiding such districts as may be fixed by the President with the consent of the Commission on Appointments or by the Secretary of Justice, as originally proposed by Senator Laurel in connection with the same bill. Something similar was done before, and it would not be objectionable as an encroachment on the President's prerogative of appointment, because such judges had already been appointed to the judiciary before the passage of the act, and the provision may be construed in the light of mere change of official designation plus increase in salary."
5. Concededly, the questioned Act effects certain changes and procedural reforms with more specific delineation of jurisdiction as mentioned particularly in the majority opinion, but they do not change the basic structure of the existing courts. The present Municipal Courts, Municipal Circuit Courts and City Courts are restructured and redesignated as Municipal Trial Courts and Municipal Circuit Trial Courts and Metropolitan Trial Courts in the challenged Act. The Courts of First Instance, Circuit Criminal Courts, Juvenile & Domestic Relations Courts and Courts of Agrarian Relations are all restructured and redesignated to be known by the common name of Regional Trial Courts with provision for certain branches thereof "to handle exclusively criminal cases, juvenile and domestic relations cases, agrarian cases, urban land reform cases . . . . and/or such other special cases as the Supreme Court may determine in the interest of a speedy and efficient administration of justice" 10 and the Court of Appeals is restructured and redesignated as the Intermediate Appellate Court with an increase in the number of Appellate Justices from the present 45 to 50 but with a reduction of the number of divisions from 15 (composed of 3 Justices each) to 10 (composed of 5 members each) such that it is feared that there is created a bottleneck at the appellate level in the important task discharged by such appellate courts as reviewers of facts. In my view, the "candid admission" by the Chief Justice in his opinion for the Court "that he entertained doubts as to whether the intermediate court of appeals provided for is a new tribunal" 10a is equally applicable to all the other above mentioned courts provided for in the challenged Act as "new courts". And the best proof of this is the plain and simple transitory provision in section 44 thereof that upon the President's declaration of completion of the reorganization (whereby the "old courts" shall "be deemed automatically abolished and the incumbents thereof shall cease to hold office "(T)he cases pending in the old Courts shall be transferred to the appropriate Courts constituted pursuant to this Act, together with the pertinent functions, records, equipment, property and the necessary personnel together with the "applicable appropriations." This could not have been possible without a specification and enumeration of what specific cases of the "old courts" would be transferred to the particular "new courts," had these "new courts" not been manifestly and substantially the "old courts" with a change of name or as described by Justice Barredo to have been his first view, now discarded, in his separate opinion: "just a renaming, and not a substantial and actual modification or alteration of the present judicial structure or system" or "a rearrangement or remodeling of the old structure." 11 6. I do not subscribe to the test of good faith or bad faith in the abolition of the courts and consequent ouster of the incumbent judges from office as expounded by the late eminent Justice Jose P. Laurel in his separate concurring opinion in the pre-war case of Zandueta 12 wherein the Court dismissed the petition for quo warranto on the ground of petitioner Zandueta's estoppel and abandonment of office. 13 Realistically viewed from the basis of the established legal presumptions of validity and constitutionality of statutes (unless set aside by a 2/3 majority of 10 members of the Supreme Court) and of good faith in their enactment, one is hard put to conjure a case where the Court could speculate on the good or bad motives behind the enactment of the Act without appearing to be imprudent and improper and declare that "the legislative power of reorganization (is) sought to cloak an unconstitutional and evil purpose." The good faith in the enactment of the challenged Act must needs be granted. What must be reconciled is the legislative power to abolish courts as implied from the power to establish them with the express constitutional guaranty of tenure of the judges which is essential for a free and independent judiciary. Adherents of the Rule of Law are agreed that indispensable for the maintenance of the Rule of Law is a free and independent judiciary, sworn to protect and enforce. it without fear or favor "free, not only from graft, corruption, ineptness and incompetence but even from the tentacles of interference and insiduous influence of the political powers that be to quote again from Justice Barredo's separate

94
concurring opinion. 14Hence, my adherence to the 7-member majority opinion of former Chief Justice Bengzon in the Ocampo case, supra, as restated by the Philippine Association of Law Professors headed by former Chief Justice Roberto Concepcion that "any reorganization should at least snow the incumbents of the existing courts to remain in office [the appropriate counterpart 'new courts'] unless they are removed for cause." 7. The "judges' broader and stronger guarantees of tenure than ordinary civil servants" as stressed by former Chief Justice Bengzon in Ms majority opinion in Ocampo is based on the judiciary's status as a coequal and coordinate branch of government, whereas the long line of Philippine cases upholding the legislative power to abolish offices refers to officers or employees in the executive branch of government and "the underlying consideration must be borne in mind that Manalang [the aggrieved petitioner] belonged to the Executive Department and because the President approved the law no question or encroachment by one branch on the other could be apprehended or alleged. 15 This is not a matter of personal privilege for the incumbent judges but as aptly stated by former U.P. Law Dean Irene Cortez in her memorandum as amicus curiae, "for the judiciary whose independence is not only eroded but is in grave danger of being completely destroyed." Dean Cortez aptly stressed that "judicial independence is not a guarantee intended for the Supreme Court alone, it extends to the entire court system and is even more vital to the courts at the lowest levels because there are more of them and they operate closest to the people," and "(P)articularly under the present form of modified parliamentary government with legislative and executive functions overlapping and in certain areas merging, the judiciary is left to perform the checking function in the performance of which its independence assumes an even more vital importance. "

The extensive memoranda filed by Dean Cortez and other amici curiae such as former Senator Jose W. Diokno who strongly urges the Court to strike down the Act "to prevent further destruction of judicial independence," former Senator Lorenzo Sumulong, president of the Philippine Constitution Association who advocates for the Court's adoption of the B Bengzon majority opinion in the Ocampo case so as to abide by "the elementary rule in the interpretation of constitutions that effect should be given to all parts of the Constitution" and that the judges' security of tenure guaranty should not be rendered meaningless and inoperative" former Solicitor General Arturo A. Alafriz, president of the Philippine Lawyers' Association who submits that the total abolition of all courts below the Supreme Court (except the Sandiganbayan and the Court of Tax Appeals) and the removal of the incumbent Justices and Judges "violates the independence of the judiciary, their security of tenure and right to due process guaranteed them by the Constitution" and Atty. Raul M. Gonzales, president of the National Bar Association of the Philippines who invokes the Declaration of Delhi at the ICJ Conference in 1959, that "The principles of unremovability of the Judiciary and their Security of Tenure until death or until a retiring age fixed by statute is reached, is an important safeguard of the Rule of Law" have greatly helped in fortifying my views. 8. I had submitted in my memo of September 4, 1980 to the Presidential Committee on Judicial Reorganization that "(W)hatever reorganization plans the committee may recommend to meet the worldwide problem of congested court dockets, and to improve judicial services in the public interest, it should be borne in mind that the members of the judiciary as the weakest branch of government, yet called upon to safeguard the people's rights and protect them oppression, official and otherwise, are entitled to security of tenure as guaranteed by the Constitution. Even though the lower courts may be reshuffled or abolished in the process, the mandate and spirit of the Constitution guaranteeing their security of tenure and maintaining the independence of the judiciary should be respected, and they should be retained in the new courts." In the same vein, Dean Cortez warned of the dire consequences of giving the questioned provisions of the Act the "absolutist sense which they appear to have at first blush" thus: "(T)o accept legislative power to abolish courts asserted under Batas Pambansa Blg. 129 which sweeps through practically the entire judiciary would be to open the door to future court abolitions in the guise of reorganization. At this stage of our political development, the process of embarking upon a modified parliamentary system may well usher in a situation where despite guarantees of judicial tenure, each ruling party in the legislature or any alliance that can command a majority vote may periodically undertake complete reorganization and remove judges, thus making of the judiciary a veritable straw in the political wind and "(F)urthermore, what can result in the modified parliamentary system from the close working relationship between executive and legislature is made manifest in Batas Pambansa Blg. 129. If the sweeping revamp provided were to be carried out the President would appoint all of the justices and judges of the courts affected and the whole membership in the judiciary from the highest to the lowest courts would be his appointees. It is relevant to point out that it is precisely a situation like this that the Constitution seeks to avoid when it provides staggered terms for the chairman and members of the constitutional commissions which like the judiciary are guaranteed independence."

95
9. The judges' security of tenure was rendered nugatory by the Transitory Provisions of the 1973 Constitution which granted the incumbent President the unlimited power to remove and replace all judges and officials 16 (as against the limited one-year period for the exercise of such power granted President Quezon in the 1935 Constitution upon establishment of the Philippine Commonwealth Upon the declaration of martial law in September, 1972, justices and judges of all courts, except the Supreme Court, had been required to hand in their resignations. There is listed a total of 53 judges who were replaced or whose resignations were accepted by the President during the period from September, 1972 to April, 1976. The power to replace even the judges appointed after the effectivity on January 17, 1973 of the 1973 Constitution is yet invoked on behalf of the President in the pending case of Tapucar vs. Famador 17 notwithstanding the generally held view that such post-1973 Constitution appointed judges are not subject to the Replacement Clause of the cited Transitory Provision. (In this case, petitioner judge appointed on January 30, 1976 as judge of the Court of First Instance of Agusan del Norte and Butuan City, Branch 1, invoked his constitutional security of tenure and questioned the appointment extended on February 26, 1980 to respondent to replace him, although he had not been removed or otherwise dismissed from his position nor had be resigned therefrom. The Court per its March 27, 1980 resolution ordered both to refrain from discharging the functions of the questioned office And now comes this total abolition of 1,663 judicial positions (and thousands of personnel positions) unprecedented in its sweep and scope. The urgent need is to strengthen the judiciary with the restoration of the security of tenure of judges, which is essential for a free and independent judiciary as mandated by the Constitution, not to make more enfeebled an already feeble judiciary, possessed neither of the power of the sword nor the purse, as decried by former Chief Justice Bengzon in his Ocampo majority opinion:

Shall we have judges of the type of Lord Coke Or judges, who, in his place, would have answered 'I'll do what his majesty pleases,' judges who, afraid of ouster thru a judiciary reshuffle, would rather serve the interests of the party in power or of the political boss, than the interests of justice? As it is, the Judicial Department is feeble enough. Shall we render it feebler with judges precariously occupying their official seats Judges performing their duties under the sword of Damocles of future judicial reorganizations
10. The Chief Justice, in his opinion for the Court, equally stressed that "what is equally apparent is that the strongest ties bind the executive and legislative departments. It is likewise undeniable that the Batasang Pambansa retains its full authority to enact whatever legislation may be necessary to carry out national policy as usually formulated in a caucus of the majority party. It is understandable then why in Fortun vs. Labang 18 it as stressed that with the provision transferring to the Supreme Court administrative supervision over the Judiciary, there is a greater need 'to preserve unimpaired the independence of the judiciary, especially so at present, where to all intends and purposes, there is a fusion between the executive and the legislative branches,'" 19 with the further observation that "many are the ways by which such independence could be eroded." In the cited case of Judge Fortun (likewise penned by the Chief Justice for the Court), the Court issued a writ of prohibition and certiorari ordering the dismissal of the criminal complaint filed with respondent fiscal Labang by "disgruntled members of the bar with a record of losing cases" in the judge's court and imposed the penalty of censure on each and everyone of the private respondents-lawyers for the "unseemly haste" with which they filed the criminal complaint, abetted by "the appearance of sheer vindictiveness or oppressive exercise of state authority." The Court marked the "violation of the cardinal principles of fairness and due process that underlie the Rule of Law. Petitioner-Judge was not heard; he was denied the opportunity to defend himself against the accusation. There was, on the part of private respondents then, a failure to abide by a Resolution of the Integrated Bar stressing that precisely integration could shield 'the judiciary which traditionally cannot defend itself except within its own forum, from the assaults that politics and self-interest may level at it, and assist it to maintain its integrity, impartiality and independence,' " and that such subjection of a judge to public "harassment and humiliation . . . can diminish public confidence in the courts." 11. This brings us to the allegedly underlying need for B.P. Blg. 129 discussed in the course of committee hearings of Cabinet Bill No. 42 and the deliberation on second reading in the Batasang Pambansa to rid the judiciary of incompetent and corrupt judges and to restore confidence in the integrity of the courts. The purge has been the constant subject of headlines and editorials, with the Ministry of Justice's Integrity Council reportedly screening and conducting "integrity tests as to new applicants and the incumbent judges 20 and seeking "confidential information on corrupt and incompetent judges to help the government purge the judiciary." 21 Prime Minister Cesar Virata was quoted as saying that "there will be a purge of the corrupt and the misfits' when the Judiciary Reorganization Act is signed into law by President Marcos and implemented in coordination with the Supreme Court." 22 The public respondents' answer sidesteps the issue of such purge contravening the rudiments of a fair hearing and due process and submits that "no term of office is sacrosanct when demanded before the altar of the public good." The metropolitan papers reported the "anxiety gripping the judiciary as the Ministry of Justice has reportedly been asked to collate information 'on the performance of the judges and on the qualifications of those slated to take over the positions of the incompetent, the inefficient or those involved in irregularities. As stated in an editorial, 'Somehow, the uncertainty that now hovers over the judiciary has unduly subjected the judges to mental torture since they do not know when or whether the axe will

96
fall on them. Worse, the sword of Damocles hanging over their heads could provoke them into seeking the help of people claiming to have influence with the powers that be." 23

But Dean Cortez in her memorandum states that "However, nowhere on public record is there hard evidence on this. The only figures given in the course of the committee hearings were to the effect that out of some 1,700 members of the judiciary, between 10 to 15 were of the undesirable category, i.e. misfit, incompetent or corrupts. (Barredo, J., before the Committee on Justice, human Rights and Good Government, December 4, 1980)," and that "(I)f this be the case, the unprecedented, sweeping and wholesale abolition of judicial offices becomes an arbitrary act, the effect of which is to assert the power to remove all the incumbents guilty or innocent without due process of law." Now would it be of any avail to beg the question and assert that due process is not available in mass abolitions of courts.
Justice Barredo, however, without citing any hard evidence, refers in his separate concurrence to twin objectives of getting rid of " structural inadequacies of the system or of the cumbersomeness and technicality-peppered and dragging procedural rules in force and of "a good number of those occupying positions in the judiciary (who') make a mockery of justice and take advantage of their office for personal ends He adds that "it is my personal assessment of the present situation in our judiciary that its reorganization has to be of necessity two-pronged, as I have just indicated, for the most Ideal judicial system with the most perfect procedural rules cannot satisfy the people and the interests of justice unless the men who hold positions therein possess the character, competence and sense of loyalty that can guarantee their devotion to duty and absolute impartiality, nay, impregnability to all temptations of graft and corruption, including the usual importunings and the fearsome albeit improper pressures of the powers that be," 24 and invokes the adage of "grandes males, grandes remedios" to now uphold the validity of the Act.

Former Senator Diokno in his memorandum anticipates the argument that "great ills demand drastic cures" thus: "Drastic, yes but not unfair nor unconstitutional. One does not improve courts by abolishing them, any more than a doctor cures a patient by killing him. The ills the judiciary suffers from were caused by impairing its independence; they will not be cured by totally destroying that independence. To adopt such a course would only breed more perversity in the administration of justice, just as the abuses of martial rule have bred more subversion." 12. Finally, as stated by the 19-i 5 integrated Bar of the Philippines 2nd House of Delegates, "It would, indeed, be most ironical if Judges who are called upon to give due process cannot count it on themselves. Observance of procedural due process in the separation of misfits from (he Judiciary is the right way to attain a laudable objective. ' As stressed by the Chief Justice in the Fortun case, judges are entitled to the cardinal principles of fairness and due process and the opportunity to be heard and defend themselves against the accusations made against their and not to be subjected to harassment and humiliation, and the Court will repudiate the "oppressive exercise of legal authority." More so, are judges entitled to such due process when what is at stake is their constitutionally guaranteed security of tenure and non-impairment of the independence of the judiciary and the proper exercise of the constitutional power exclusively vested in the Supreme Court to discipline and remove judges after fair hearing. In sum, I see no reason to change the stand submitted by me to the Presidential Committee on Judicial Reorganization that Judges of inferior courts should not be summarily removed and branded for life in such reorganization on the basis of confidential adverse reports as to their performance, competence or integrity, save those who may voluntarily resign from office upon being confronted with such reports against them. The trouble with such ex-parte reports, without due process or hearing, has been proven from our past experience where a number of honest and competent judges were summarily removed while others who were generally believed to be basket cases have remained in the service; and The power of discipline and dismissal of judges of all inferior courts, from the Court of Appeals down, has been vested by the 1973 Constitution in the Supreme Court, and if the judiciary is to be strengthened, it should be left to clean its own house upon complaint and with the cooperation of the as grieved parties and after due process and hearing. The constitutional confrontation and conflict may wen be avoided by holding that since the changes and provisions of the challenged Act do not substantially change the nature and functions of the "new courts" therein provided as compared to the "abolished old courts" but provide for procedural changes, fixed delineation of jurisdiction and increases in the number

97
of courts for a more effective and efficient disposition of court cases, the incumbent judges guaranteed security of tenure require that they be retained in the corresponding "new courts." Fernandez, J., concur.

Republic of the Philippines SUPREME COURT Manila

98
EN BANC

A.M. No. 88-7-1861-RTC October 5, 1988 IN RE: DESIGNATION OF JUDGE RODOLFO U. MANZANO AS MEMBER OF THE ILOCOS NORTE PROVINCIAL COMMITTEE ON JUSTICE.

PADILLA, J.: On 4 July 1988, Judge Rodolfo U. Manzano, Executive Judge, RTC, Bangui, Ilocos Norte, Branch 19, sent this Court a letter which reads: Hon. Marcelo Fernan Chief Justice of the Supreme Court of the Philippines Manila Thru channels: Hon. Leo Medialdea Court Administrator Supreme Court of the Philippines Sir: By Executive Order RF6-04 issued on June 21, 1988 by the Honorable Provincial Governor of Ilocos Norte, Hon. Rodolfo C. Farinas, I was designated as a member of the Ilocos Norte Provincial Committee on Justice created pursuant to Presidential Executive Order No. 856 of 12 December 1986, as amended by Executive Order No. 326 of June 1, 1988. In consonance with Executive Order RF6-04, the Honorable Provincial Governor of Ilocos Norte issued my appointment as a member of the Committee. For your ready reference, I am enclosing herewith machine copies of Executive Order RF6-04 and the appointment. Before I may accept the appointment and enter in the discharge of the powers and duties of the position as member of the Ilocos (Norte) Provincial Committee on Justice, may I have the honor to request for the issuance by the Honorable Supreme Court of a Resolution, as follows: (1) Authorizing me to accept the appointment and to as assume and discharge the powers and duties attached to the said position; (2) Considering my membership in the Committee as neither violative of the Independence of the Judiciary nor a violation of Section 12, Article VIII, or of the second paragraph of Section .7, Article IX (B), both of the Constitution, and will not in any way amount to an abandonment of my present position as Executive Judge of Branch XIX, Regional Trial Court, First Judicial Region, and as a member of the Judiciary; and (3) Consider my membership in the said Committee as part of the primary functions of an Executive Judge. May I please be favored soon by your action on this request. Very respectfully yours, (Sgd) RODOLFO U. MANZANO Judge

99
An examination of Executive Order No. 856, as amended, reveals that Provincial/City Committees on Justice are created to insure the speedy disposition of cases of detainees, particularly those involving the poor and indigent ones, thus alleviating jail congestion and improving local jail conditions. Among the functions of the Committee are 3.3 Receive complaints against any apprehending officer, jail warden, final or judge who may be found to have committed abuses in the discharge of his duties and refer the same to proper authority for appropriate action; 3.5 Recommend revision of any law or regulation which is believed prejudicial to the proper administration of criminal justice. It is evident that such Provincial/City Committees on Justice perform administrative functions. Administrative functions are those which involve the regulation and control over the conduct and affairs of individuals for; their own welfare and the promulgation of rules and regulations to better carry out the policy of the legislature or such as are devolved upon the administrative agency by the organic law of its existence (Nasipit Integrated Arrastre and Stevedoring Services Inc., vs. Tapucar, SP-07599-R, 29 September 1978, Blacks Law Dictionary). Furthermore, under Executive Order No. 326 amending Executive Order No. 856, it is provided that Section 6. Supervision.The Provincial/City Committees on Justice shall be under the supervision of the Secretary of justice Quarterly accomplishment reports shall be submitted to the Office of the Secretary of Justice. Under the Constitution, the members of the Supreme Court and other courts established by law shag not be designated to any agency performing quasi- judicial or administrative functions (Section 12, Art. VIII, Constitution). Considering that membership of Judge Manzano in the Ilocos Norte Provincial Committee on Justice, which discharges a administrative functions, will be in violation of the Constitution, the Court is constrained to deny his request. Former Chief Justice Enrique M. Fernando in his concurring opinion in the case of Garcia vs. Macaraig (39 SCRA 106) ably sets forth: 2. While the doctrine of separation of powers is a relative theory not to be enforced with pedantic rigor, the practical demands of government precluding its doctrinaire application, it cannot justify a member of the judiciary being required to assume a position or perform a duty non-judicial in character. That is implicit in the principle. Otherwise there is a plain departure from its command. The essence of the trust reposed in him is to decide. Only a higher court, as was emphasized by Justice Barredo, can pass on his actuation. He is not a subordinate of an executive or legislative official, however eminent. It is indispensable that there be no exception to the rigidity of such a norm if he is, as expected, to be confined to the task of adjudication. Fidelity to his sworn responsibility no less than the maintenance of respect for the judiciary can be satisfied with nothing less. This declaration does not mean that RTC Judges should adopt an attitude of monastic insensibility or unbecoming indifference to Province/City Committee on Justice. As incumbent RTC Judges, they form part of the structure of government. Their integrity and performance in the adjudication of cases contribute to the solidity of such structure. As public officials, they are trustees of an orderly society. Even as non-members of Provincial/City Committees on Justice, RTC judges should render assistance to said Committees to help promote the laudable purposes for which they exist, but only when such assistance may be reasonably incidental to the fulfillment of their judicial duties. ACCORDINGLY, the aforesaid request of Judge Rodolfo U. Manzano is DENIED. SO ORDERED. Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes, Medialdea and Regalado, JJ., concur.

100

Separate Opinions

GUTIERREZ, JR., J., dissenting: The Constitution prohibits the designation of members of the judiciary to any agency performing quasi-judicial or administrative functions (Section 12, Article VIII, Constitution.). Insofar as the term "quasi-judicial" is concerned, it has a fairly clear meaning and Judges can confidently refrain from participating in the work of any administrative agency which adjudicates disputes and controversies involving the rights of parties within its jurisdiction. The issue involved in this case is where to draw the line insofar as administrative functions are concerned. "Administrative functions" as used in Section 12 refers to the executive machinery of government and the performance by that machinery of governmental acts. It refers to the management actions, determinations, and orders of executive officials as they administer the laws and try to make government effective. There is an element of positive action, of supervision or control. Applying the definition given in the opinion of the majority which reads: Administrative functions are those which involve the regulation and control over the conduct and affairs of individuals for their own welfare and the promulgation of rules and regulations to better carry out the policy of the legislature or such as are devolved upon the administrative agency by the organic law of its existence (Nasipit Integrated Arrastre and Stevedoring Services Inc. v. Tapucar, S.P-07599-R, 29 September 1978, Black's Law Dictionary. ) we can readily see that membership in the Provincial or City Committee on Justice would not involve any regulation or control over the conduct and affairs of individuals. Neither will the Committee on Justice promulgate rules and regulations nor exercise any quasi-legislative functions. Its work is purely advisory. I do not see anything wrong in a member of the judiciary joining any study group which concentrates on the administration of justice as long as the group merely deliberates on problems involving the speedy disposition of cases particularly those involving the poor and needy litigants or detainees, pools the expertise and experiences of the members, and limits itself to recommendations which may be adopted or rejected by those who have the power to legislate or administer the particular function involved in their implementation. We who are Judges cannot operate in a vacuum or in a tight little world of our own. The administration of justice cannot be pigeonholed into neat compartments with Judges, Fiscals, Police, Wardens, and various other officials concerned erecting water-tight barriers against one another and limiting our interaction to timidly peeping over these unnecessary and impractical barriers into one another's work, all the while blaming the Constitution for such a quixotic and unreal interpretation. As intimated in the majority opinion, we should not be monastically insensible or indifferent to projects or movements cogitating on possible solutions to our common problems of justice and afterwards forwarding their findings to the people, public or private, where these findings would do the most good. The majority opinion suggests the giving of assistance by Judges to the work of the Committees on Justice. Assistance is a vague term. Can Judges be designated as observers? Advisers? Consultants? Is it the act of being "designated" which is proscribed by the Constitution or is it participation in the prohibited functions? If judges cannot become members, why should they be allowed or even encouraged to assist these Committees The line drawn by the majority is vague and unrealistic. The constitutional provision is intended to shield Judges from participating in activities which may compromise their independence or hamper their work. Studying problems involving the administration of justice and arriving at purely recommendatory solutions do not in any way involve the encroachment of. the judiciary into executive or legislative

101
functions or into matters which are none of its concerns. Much less is it an encroachment of the other departments into judicial affairs. As the visible representation of the law and of justice in his community, the Judge should not shy away from public activities which do not interfere with the prompt and proper performance of his office, but which, in fact, enhance his effectiveness as a Judge. He cannot stop mingling in civic intercourse or shut himself into solitary seclusion. The Committees on Justice will also be immensely benefited by the presence of Judges in the study groups. The work of the Committees is quite important. Let it not be said that the Judges the officials most concerned with justice have hesitated to join in such a worthy undertaking because of a strained interpretation of their functions. It is well for this Court to be generally cautious, conservative or restrictive when it interprets provisions of the Constitution or statutes vesting us with powers or delimit the exercise of our jurisdiction and functions. However, we should not overdo it. The basic principles of constitutional interpretation apply as well to the provisions which define or circumscribe our powers and functions as they do to the provisions governing the other dependents of government. The Court should not adopt a strained construction which impairs its own efficiency to meet the responsibilities brought about by the changing times and conditions of society. The familiar quotation is apt in this caseconstitutional provisions are interpreted by the spirit which vivifies and not by the letter which killeth. I, therefore, dissent from the majority opinion and vote to allow Judge Rodolfo U. Fernan C.J., Narvasa and Grio-Aquino, JJ., join in Gutierrez dissent. MELENCIO-HERRERA, J., dissenting: I hesitate to give such a restrictive and impractical interpretation to Section 12, Article VIII of the 1987 Constitution, and thus join the dissent of Justice Gutierrez, Jr. What I believe is contemplated by the Constitutional prohibition is designation, for example, to such quasi-judicial bodies as the SEC, or administrative agencies like the BIR. Those are full-time positions involving running the affairs of government, which will interfere with the discharge of judicial functions or totally remove a Judge/Justice from the performance of his regular functions. The Committee on Justice cannot be likened to such an administrative agency of government. It is a study group with recommendatory functions. In fact, membership by members of the Bench in said committee is called for by reason of the primary functions of their position. The matter of supervision by the Secretary of Justice provided for under E.O. No. 326 amending E.O. No. 856, need not be a cause for concern. That supervision is confined to Committee work and will by no means extend to the performance of judicial functions per se. Manzano to become a member of the Ilocos Norte Provincial Committee on Justice.

Separate Opinions

GUTIERREZ, JR., J., dissenting: The Constitution prohibits the designation of members of the judiciary to any agency performing quasi-judicial or administrative functions (Section 12, Article VIII, Constitution.). Insofar as the term "quasi-judicial" is concerned, it has a fairly clear meaning and Judges can confidently refrain from participating in the work of any administrative agency which adjudicates disputes and controversies involving the rights of

102
parties within its jurisdiction. The issue involved in this case is where to draw the line insofar as administrative functions are concerned. "Administrative functions" as used in Section 12 refers to the executive machinery of government and the performance by that machinery of governmental acts. It refers to the management actions, determinations, and orders of executive officials as they administer the laws and try to make government effective. There is an element of positive action, of supervision or control. Applying the definition given in the opinion of the majority which reads: Administrative functions are those which involve the regulation and control over the conduct and affairs of individuals for their own welfare and the promulgation of rules and regulations to better carry out the policy of the legislature or such as are devolved upon the administrative agency by the organic law of its existence (Nasipit Integrated Arrastre and Stevedoring Services Inc. v. Tapucar, S.P-07599-R, 29 September 1978, Black's Law Dictionary. ) we can readily see that membership in the Provincial or City Committee on Justice would not involve any regulation or control over the conduct and affairs of individuals. Neither will the Committee on Justice promulgate rules and regulations nor exercise any quasi-legislative functions. Its work is purely advisory. I do not see anything wrong in a member of the judiciary joining any study group which concentrates on the administration of justice as long as the group merely deliberates on problems involving the speedy disposition of cases particularly those involving the poor and needy litigants or detainees, pools the expertise and experiences of the members, and limits itself to recommendations which may be adopted or rejected by those who have the power to legislate or administer the particular function involved in their implementation. We who are Judges cannot operate in a vacuum or in a tight little world of our own. The administration of justice cannot be pigeonholed into neat compartments with Judges, Fiscals, Police, Wardens, and various other officials concerned erecting water-tight barriers against one another and limiting our interaction to timidly peeping over these unnecessary and impractical barriers into one another's work, all the while blaming the Constitution for such a quixotic and unreal interpretation. As intimated in the majority opinion, we should not be monastically insensible or indifferent to projects or movements cogitating on possible solutions to our common problems of justice and afterwards forwarding their findings to the people, public or private, where these findings would do the most good. The majority opinion suggests the giving of assistance by Judges to the work of the Committees on Justice. Assistance is a vague term. Can Judges be designated as observers? Advisers? Consultants? Is it the act of being "designated" which is proscribed by the Constitution or is it participation in the prohibited functions? If judges cannot become members, why should they be allowed or even encouraged to assist these Committees The line drawn by the majority is vague and unrealistic. The constitutional provision is intended to shield Judges from participating in activities which may compromise their independence or hamper their work. Studying problems involving the administration of justice and arriving at purely recommendatory solutions do not in any way involve the encroachment of. the judiciary into executive or legislative functions or into matters which are none of its concerns. Much less is it an encroachment of the other departments into judicial affairs. As the visible representation of the law and of justice in his community, the Judge should not shy away from public activities which do not interfere with the prompt and proper performance of his office, but which, in fact, enhance his effectiveness as a Judge. He cannot stop mingling in civic intercourse or shut himself into solitary seclusion. The Committees on Justice will also be immensely benefited by the presence of Judges in the study groups. The work of the Committees is quite important. Let it not be said that the Judges the officials most concerned with justice have hesitated to join in such a worthy undertaking because of a strained interpretation of their functions. It is well for this Court to be generally cautious, conservative or restrictive when it interprets provisions of the Constitution or statutes vesting us with powers or delimit the exercise of our jurisdiction and functions. However, we should not overdo it. The basic principles of constitutional interpretation apply as well to the provisions which define or circumscribe our

103
powers and functions as they do to the provisions governing the other dependents of government. The Court should not adopt a strained construction which impairs its own efficiency to meet the responsibilities brought about by the changing times and conditions of society. The familiar quotation is apt in this caseconstitutional provisions are interpreted by the spirit which vivifies and not by the letter which killeth. I, therefore, dissent from the majority opinion and vote to allow Judge Rodolfo U. Manzano to become a member of the Ilocos Norte Provincial Committee on Justice. Fernan C.J., Narvasa and Grio-Aquino, JJ., join in Gutierrez dissent. MELENCIO-HERRERA, J., dissenting: I hesitate to give such a restrictive and impractical interpretation to Section 12, Article VIII of the 1987 Constitution, and thus join the dissent of Justice Gutierrez, Jr. What I believe is contemplated by the Constitutional prohibition is designation, for example, to such quasi-judicial bodies as the SEC, or administrative agencies like the BIR. Those are full-time positions involving running the affairs of government, which will interfere with the discharge of judicial functions or totally remove a Judge/Justice from the performance of his regular functions. The Committee on Justice cannot be likened to such an administrative agency of government. It is a study group with recommendatory functions. In fact, membership by members of the Bench in said committee is called for by reason of the primary functions of their position. The matter of supervision by the Secretary of Justice provided for under E.O. No. 326 amending E.O. No. 856, need not be a cause for concern. That supervision is confined to Committee work and will by no means extend to the performance of judicial functions per se.

104
Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 81798 December 29, 1989 LAO GI alias FILOMENO CHIA, SR., his wife, ONG UE, and his children FILOMENO, JR., MANUEL, ROSITA VICENTA and DOMINGA, all surnamed CHIA, petitioners vs. HONORABLE COURT OF APPEALS AND COMMISSION ON IMMIGRATION AND DEPORTATION, respondents. Dakila F. Castro & Associates for petitioners.

GANCAYCO, J.: On September 3, 1958 the Secretary of Justice rendered Opinion No. 191, series of 1958 finding Filomeno Chia, Jr., alias Sia Pieng Hui to be a Filipino citizen as it appears that his father Filomeno Chia, Sr. is a Filipino citizen born on November 28, 1899 being the legitimate son of Inocencio Chia and Maria Layug of Guagua, Pampanga. However on October 3, 1980 the Minister of Justice rendered Opinion No. 147, series of 1980 cancelling Opinion No. 191, series of 1958 and setting aside the citizenship of Filomeno Chia, Sr. on the ground that it was founded on fraud and misrepresentation. A motion for reconsideration of said Opinion was denied by the Minister of Justice on February 13, 1981. On March 9, 1981 a charge for deportation was filed with the Commission on Immigration and Deportation (CID) against Lao Gi alias Filomeno Chia, Sr., his wife and children. An amended charge was filed with the CID on March 19,1981 alleging that said respondents refused to register as aliens having been required to do so and continued to refuse to register as such. On August 31, 1981 another amended charge was filed alleging that Manuel Chia committed acts of undesirability. On September 4, 1981 said respondents filed a motion to dismiss the amended charges on the ground that the CID has no authority to reopen a matter long settled under Opinion No. 191, series of 1958. The motion to dismiss was opposed by the private prosecutor. The CID special prosecutor also filed an opposition on the ground that the citizenship may be threshed out as the occasion may demand and that due process was accorded to respondents. The respondents filed a reply thereto. The motion to dismiss was denied by the CID and a motion for reconsideration of said denial was also denied in a resolution dated December 10, 1981. Said respondents then filed with this Court on February 11, 1982 a petition for certiorari and prohibition with a prayer for the issuance of a writ of preliminary injunction and restraining order docketed as G.R. No. 59619. After requiring a comment thereon, on April 28, 1982 this court en banc resolved to dismiss the petition for lack of merit. Earlier, Manuel Chia was charged with falsification of public documents in the Court of First Instance (CFI) of Manila in Criminal Case No. 60172 for alleging that he was a Filipino citizen in the execution of a Deed of Absolute Sale of certain real property. He was acquitted by the trial court in an order dated May 5, 1982 on the ground that Opinion No. 191, series of 1958 of the Secretary of Justice may be equated as res judicata and that revocation thereof by Opinion No. 147, series of 1980 cannot be considered just, fair and reasonable. On June 1, 1982 respondents filed a motion for reconsideration of the aforesaid resolution of this Court dismissing the petition but this was denied by another resolution of this Court dated August 17, 1982. A second motion for reconsideration thereof was also denied by this Court on September 16, 1982.

105
On September 23, 1982 the CID set the deportation case against respondents for hearing and Acting Commissioner Victor G. Nituda gave respondents three (3) days to move for reconsideration of the order directing them to register as aliens and to oppose the motion for their arrest. On September 27, 1982 respondents filed said motion for reconsideration and opposition but this was denied by Acting Commissioner Nituda on September 28, 1982. The latter directed respondents to register as aliens within two (2) days from notice thereof. The deportation case was set for hearing on October 5, 1 982 but on the same day respondents filed the petition for certiorari and prohibition with a prayer for injunctive relief in the Court of First Instance of Manila docketed as Civil Case No. 82- 12935 whereby a writ of preliminary injunction was issued. On April 17,1985 a decision was rendered by the trial court dismissing the petition for lack of legal basis and for want of supervisory jurisdiction on the part of the trial court on the particular subject involved. The writ of preliminary injunction previously issued was dissolved. An appeal therefrom was interposed to the Court of Appeals. In due course a decision was rendered on August 19, 1987 dismissing the appeal with costs against petitioners. A motion for reconsideration of the decision filed by petitioners was also denied in a resolution dated January 7, 1988. Hence, the herein petition for certiorari filed by petitioners wherein they seek to set aside the decision of the Court of Appeals and ask that a new one be rendered setting aside the order of the CID dated September 28, 1982 and directing it to proceed with the reception of the evidence in support of the charges against the petitioners. The issues raised in the petition are as follows: 1. The issues raised in G.R. No. 59619 before the Honorable Supreme Court were different from the issues raised in Civil Case No. 82-12935-CV. 2. The minute resolution of the Honorable Supreme Court in G.R. No. 59619 did not make a categorical ruling that petitioner entered and remained in the Philippines by false pretenses. 3. The issue of whether or not petitioners' citizenship was secured by fraud is precisely the subject matter of the proceedings before the Commission on Immigration and Deportation, in which no evidence had been presented yet in support of the charge of fraud in the acquisition of petitioners' citizenship. 4. Petitioners are not subject to immediate deportation. 5. The order for the arrest of petitioners in case of failure to register as aliens was premature since there was no competent determination yet that their citizenship was indeed procured by fraud. 6. The Honorable Court of Appeals overstepped its appellate jurisdiction, when it ruled on matters not covered by the Decision of the lower court. There can be no question that the CID has the authority and jurisdiction to hear and determine the deportation case against petitioners and in the process determine also the question of citizenship raised by the petitioners. Section 37(a) (1) of the Immigration Act provides as follows: SEC. 37. (a) The following aliens shall be arrested upon the warrant of the Commissioner of Immigration or of any other officer designated by him for the purpose and deported upon the warrant of the Commissioner of Immigration after a determination by the Board of Commissioners of the existence of the ground for deportation as charged against the alien: (1) Any alien who enters the Philippines after the effective date of this Act by means of false and misleading statements or without inspection and admission by the immigration authorities at a designated port of entry or at any place other than at a designated port of entry. (As amended by Sec. 13, Rep. Act No. 503.) ... From the foregoing provision it is clear that before any alien may be deported upon a warrant of the Commissioner of Immigration, there should be a prior determination by the Board of Commissioners of the existence of the ground as charged against the alien.

106
In this case it appears that petitioners are charged with having entered the Philippines by means of false and misleading statements or without inspection or admission by the immigration authorities at a designated port of entry. After appropriate charges are filed in the CID the specific grounds of which he should be duly informed of, a hearing should be conducted, and it is only after such a hearing by the CID that the alien may be ordered deported. In such a hearing, Opinion No. 191, Series of 1958 of the Secretary of Justice and Opinion No. 147, Series of 1980 of the Minister of Justice will bear much weight in the determination by the CID of the citizenship of said petitioners. The petitioners question the Order of Acting Commissioner Nituda that they register as aliens as required by the Immigration Act. While it is not disputed that it is also within the power and authority of the Commissioner to require an alien to so register, such a requirement must be predicated on a positive finding that the person who is so required is an alien. In this case where the very citizenship of the petitioners is in issue there should be a previous determination by the CID that they are aliens before the petitioners may be directed and required to register as aliens.
The power to deport an alien is an act of the State. It is an act by or under the authority of the sovereign power. 1 It is a police measure against undesirable aliens whose presence in the country is found to be injurious to the public good and domestic tranquility of the people. 2

Although a deportation proceeding does not partake of the nature of a criminal action, however, considering that it is a harsh and extraordinary administrative proceeding affecting the freedom and liberty of a person, the constitutional right of such person to due process should not be denied. Thus, the provisions of the Rules of Court of the Philippines particularly on criminal procedure are applicable to deportation proceedings. Under Section 37(c) of the Philippine Immigration Act of 1940 as amended, it is provided: c No alien shall be deported without being informed of the specific grounds for deportation nor without being given a hearing under rules of procedure to be prescribed by the Commissioner of Immigration.
Hence, the charge against an alien must specify the acts or omissions complained of which must be stated in ordinary and concise language to enable a person of common understanding to know on what ground he is intended to be deported and enable the CID to pronounce a proper judgment. 3 Before any charge should be filed in the CID a preliminary investigation must be conducted to determine if there is a sufficient cause to charge the respondent for deportation. 4 The issuance of warrants of arrest, arrests without warrant and service of warrants should be in accordance likewise with Rule 113 of the 1985 Rules of Criminal Procedure; 5 search warrants issued by the CID shall be governed by Rule 126 of the 1985 Rules of Criminal Procedure; 6 and so the matter of bail, motion to quash, and trial, 7 among others. Fealty to the prescribed rules of procedure in deportation cases shall insure a speedy, fair and just dispensation of justice.

The Court takes note of the fact that a private prosecutor is assisting in the prosecution of the case by the special prosecutor of the CID. The Court sees no reason why a private prosecutor should be allowed to participate in a deportation case. Under the 1985 Rules on Criminal Procedure, particularly Section 16, Rule 110 thereof, an offended party may intervene in a criminal prosecution when there is civil liability arising from the criminal action claimed by said party. In such case he may intervene by counsel. In deportation cases, the Court cannot conceive of any justification for a private party to have any right to intervene. Even if such party can establish any damages due him arising from the deportation charge against the alien, such relief cannot be afforded him in the deportation proceeding. His recourse if at all is in the ordinary courts. Thus the Court rules that the intervention of a private prosecutor should not be allowed in deportation cases. The possibility of oppression, harrassment and persecution cannot be discounted. The deportation of an alien is the sole concern of the State. This is the reason why there are special prosecutors and fiscals tasked to prosecute such cases. WHEREFORE, the petition is hereby GRANTED and the questioned order of the respondent Commission on Immigration and Deportation dated September 28, 1982 is hereby set aside. The respondent Commission on Immigration and Deportation is hereby directed to continue hearing the deportation case against petitioners and thereafter, based on the

107
evidence before it, to resolve the issue of citizenship of petitioners, and if found to be aliens, to determine whether or not the petitioners should be deported and/or otherwise ordered to register as aliens. No costs. SO ORDERED. Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.
Footnotes

1 In re R. McCulloch Dick, 38 Phil. 41, 211, 224 (1918). 2 Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil. 534 (1910). 3 Section 9, Rule 110, 1985 Rules of Criminal Procedure. 4 Section 15, Preliminary Investigation, Deportation Rules of Procedure; Rule 112, Rules of Criminal Procedure. 5 Sections 5 and 6 of the Deportation Rules of Procedure. 6 Section 7, supra. 7 Sections 16, 17 and 21, supra; Rules 114, 117 and 119, 1985 Rules of Criminal Procedure.

108

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

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 CARLO DEL ROSARIO, accused-appellees. Office of the Solicitor General for appellant. Rustics F. de los Reyes, Jr. for appellees.

AQUINO, J.:

t .hqw

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. 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. 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 sensored 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 cuffed 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.

109
The lower court held that electro fishing cannot be penalize because electric current is not an obnoxious or poisonous substance as contemplated in section I I 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 more 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:
+. wph!1

SUBJECT: PROHIBITING ELECTRO FISHING IN ALL WATERS OF THE PHILIPPINES.

+.w ph!1

Pursuant to Section 4 of Act No. 4003, as amended, and Section 4 of R.A. No. 3512, the following rules and regulations regarding the prohibition of electro fishing in all waters of the Philippines are promulgated for the information and guidance of all concerned.
+.w ph!1

SECTION 1. Definition. Words and terms used in this Order 11 construed as follows: (a) Philippine waters or territorial waters of the Philippines' includes all waters of the Philippine Archipelago, as defined in the t 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 and 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 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 extending 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 six (60) days after its publication in the Office Gazette.

110
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 in t for not more than six months, or both, in the discretion of the court." That assumption is incorrect because 3 of the aforequoted Administrative Order No. 84 imposes a fm of not exceeding P500 on a person engaged in electro fishing, which amount the 83. It seems that the Department of Fisheries prescribed their own penalty for swift fishing which penalty is less than the severe penalty imposed in section 76 and which is not Identified to the at penalty imposed in section 83. Had Administrative Order No. 84 adopted the fighter penalty prescribed in on 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, We have discussed this pre point, not raised in the briefs, because it is obvious that the crime of electro fishing which is punishable with a sum 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 d 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 motion. This appeal shall be treated as a direct appeal from the municipal court to this Court. (See People vs. Del Rosario, 97 Phil. 67). 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 rulemaking 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.

111
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 molusca, (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 fails 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 an 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. 11 25, citing 11 Am. Jur. 965 on p. 11 32). 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 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 revolution 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:
+.wph!1

SEC. 33. Illegal fishing, dealing in illegally caught fish or fishery/aquatic products. It shall he 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 Act No. 4003, as amended, Republic Acts Nos. 428, 3048, 3512 and 3586, Presidential Decrees Nos. 43, 534 and 553, and all , 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 the old Fisheries Law, is now found in section 3(d) of the decree. Note further that the decree penalty electro fishing by "imprisonment from two (2) to four (4) years", a punishment which is more severe than the

112
penalty of a time of not excluding 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 ex his authority in penalizing electro fishing by means of an administrative order. Administrative agent 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 defects 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. Mu;oz, L24796, 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 nondeleption of legislative, powers. Administrative regulations or "subordinate legislation calculated to promote the public interest are necessary because of "the growing complexity of modem life, the multiplication of the subjects of governmental regulations, and the increased difficulty of administering the law" Calalang vs. Williams, 70 Phil. 726; People vs. Rosenthal and Osme;a, 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 d 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 his 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 A 93 Phil. 376, 382, citing 12 C.J. 845-46. As to invalid regulations, see of Internal Revenue vs. Villaflor 69 Phil. 319, Wise & Co. vs. Meer, 78 Phil. 655, 676; Del March vs. Phil. Veterans Administrative, 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 and proper to carry into effect the provisions thereof." That power is now vested in the Secretary of Natural Resources by on 7 of the Revised Fisheries law, Presidential December No. 704. Section 4(h) of Republic Act No. 3512 empower the Co 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, regulates, orders, memorandums, and other instructions, not contrary to law, 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."

113
Administrative regulations issued by a Department Head in conformity with law have the force of law (Valerie vs. Secretary of culture and Natural Resources, 117 Phil. 729, 733; Antique Sawmills, Inc. vs. Zayco, L- 20051, 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 bound 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 office must be 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). "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 Victories 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

114
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. 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 dismiss. A penal statute is strictly construed. While an administrative agency has the right to make ranks 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 Second 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 precise of the rule-making power but constitute an attempt by an administrative body to legislate (State vs. Miles, 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-down cash prize to the person displaying the largest deer in his store during the open 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. 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.

115
Barredo, Concepcion, Jr., Santos and Guerrero, JJ., concur. Fernando and Antonio, JJ., took no part. Guerrero, J., was designated to sit in the Second Division.
1wph1.t

The Lawphil Project - Arellano Law Foundation Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 90482 August 5, 1991 REPUBLIC OF THE PHILIPPINES, acting through the SUGAR REGULATORY ADMINISTRATION, and REPUBLIC PLANTERS BANK, petitioners, vs. THE HONORABLE COURT OF APPEALS, 15th Division, THE HONORABLE CORONA IBAY-SOMERA, in her official capacity as Presiding Judge of the Regional Trial Court, National Capital Region, Branch 26, Manila, JORGE C. VICTORINO and JAIME K. DEL ROSARIO, in their official capacities as RTC Deputy Sheriffs of Manila, ROGER Z. REYES, ERNESTO L. TREYES, JR., and EUTIQUIO M. FUDOLIN, respondents. Enrique V. Olmedo for Independent Sugar Farmers, Inc. Reyes, Treyes & Fudolin Law Firm for respondents.

DAVIDE, JR., J.:p This is an appeal by certiorari under Rule 45 of the Revised Rules of Court, with prayer for a temporary restraining order or writ of preliminary injunction, filed on 25 October 1989 by the Office of the Government Corporate Counsel (OGCC) in behalf of the Republic of the Philippines "acting through the Sugar Regulatory Administration" (SRA) and the Republic Planters Bank (RPB) seeking the review of the 13 October 1989 Decision of the Court of Appeals (15th Division) in CAGR No. 17188.
The assailed decision 1 dismissed the petition for certiorari filed by Petitioners against herein public respondents Judge and deputy sheriffs and private respondents for the nullification of the Orders of respondent Judge of 13 March 1989, 21 March 1989 and 27 March 1989 in Civil Case No. 86-35880 of Branch 26 of the Regional Trial Court of Manila on the following grounds: (a) the funds upon which the attorney's fees are sought to be executed now belong to the Republic of the Philippines due to legal subrogation, (b) execution is not proper against the Republic which is not a party to the case, (c) the issuance of a writ of execution would violate the Constitution since according to it no money shall be paid out of the treasury except in pursuance to an appropriations made by law, and (d) execution for attomey's fees is unwarranted.

Respondent Court of Appeals dismissed the petition for lack of merit principally because (a) Under the compromise agreement petitioner (RPB) accepted the designation/appointment as Trustee whose obligation is to pay; it received benefits by way of trustee's fees; it may not question the right of private respondents to attorney's fees;

116
(b) Petitioner (SRA) may not lawfully bring an action on behalf of the Republic of the Philippines since under Section 13 of Executive Order No. 18 dated 28 May 1986, which created it, it simply was to take over the functions of the defunct PHILSUCOM; however, the latter was to remain a judicial entity for three more years for the purpose of prosecuting and defending suits against it; hence it is PHILSUCOM, being a party to the compromise agreement, which may properly contest the right of private respondents to attomey's fees; (c) The petition should have been filed through the Office of the Solicitor General OSG and not through the (OGCC); neither the latter nor the (SRA) may lawfully represent the Government of the Philippines in any suit or proceeding such as the present petition for administrative agencies may only perform such powers and functions as may be authorized by the laws which created or gave them existence; and (d) The respondent judge did not commit any error of jurisdiction in issuing the questioned orders; hence, the remedy should be appeal. The facts which gave rise to said petition are summarized by the Court of Appeals as follows: On May 16,1986, Republic Planters Bank (hereafter referred to as RPB), Zosimo Maravilla, Rosendo de la Rama, Bibiano Sabino, Roberto Mascufiana and Ernesto Kramer "for themselves and in representation of other sugar producers" filed a Complaint with the respondent court, RTC Branch 26, docketed as C.C. 86-35880 "For Sum of Money and/or Delivery of Personal Property with Restraining Order and/or Preliminary Injunction" against the Philippine Sugar Commission (PHILSUCOM) and the National Sugar Trading Corporation (NASUTRA) with the prayer: WHEREFORE PREMISES CONSIDERED, it is respectfully prayed of this Honorable Court that, after due hearing and trial, judgment be rendered in favor of Plaintiffs and against Defendants ordering them to do the following: 1. To render a correct and faithful account of whatever amount of United States dollar accounts/deposits in different banks, domestic and foreign, being held in agents and/or representatives. 2. To render a correct and faithful inventory of all the physical sugar stocks for crop year 1984-85 presently remaining in the warehouses of the different sugar mills all over the country. 3. To deliver or remit to the Plaintiffs any and all United States dollar accounts/deposits in various banks, domestic or foreign, held in the name of Defendants, their subsidiaries, conducts (sic), agents and/or representatives. 4. To deliver the entire remaining physical sugar stocks corresponding to crop year 1984-85 presently remaining in the warehouses of the different sugar mills all over the country in favor of Plaintiffs who were unlawfully deprived of their possession and control by Defendants, to be applied and deducted from Defendant's liability to Plaintiffs for the unaccounted sugar for crop year 1984-85. 5. To jointly and severally pay Plaintiffs-Producers all interests and penalties imposed by Assignee-banks/creditors for accounts covered by unpaid sugar quedans for crop year 1984-85. 6. To jointly and severally pay Plaintiffs claims for moral, compensatory and exemplary damages in such accounts to be determined in the course of the trial. 7. To jointly and severally pay for the attorney's fees of twenty percent (20%) based on the total amount that may be recovered. 8. To jointly and severally pay for the costs and litigation expenses incurred by the Plaintiffs. Plaintiffs likewise pray that, in order to prevent grave and irreparable injury, this Honorable Court shall issue a writ of preliminary injunction enjoining and/or prohibiting the Defendants, their officers and/or agents from transferring, releasing or in any manner disposing of all U.S. dollar deposits/accounts held in the name of Defendants, its subsidiaries, conduits agents and/or representatives in the different banks, domestic and foreign, including the physical sugar corresponding to

117
crop year 1984-85 presently remaining in the warehouses of the different sugar mills all over the country after requiring the Plaintiffs to post a bond that may be determined by the Honorable Court to answer for the damages in the event judgment will be rendered in Defendant's favor. Furthermore, Plaintiffs pray that a Restraining Order be immediately issued for the purpose of enjoining the Defendants from committing and/or proceeding with the foregoing acts, pending hearing of the application for a writ of preliminary injunction. Plaintiffs further pray for such other reliefs and remedies, just and equitable under the premises. Before PHILSUCOM and NASUTRA could answer, a Compromise Agreement dated May 23, 1986 was submitted by the parties which the lower court approved and based on it, the Judgment dated June 2,1986 (Annex "B", Petition, Id., pp. 2236) was issued. A motion for the issuance of writ of execution was filed (Annex "C", Petition, Id., pp, 37-50). PHILSUCOM and NASUTRA filed their "Comment and Opposition (To Motion for Issuance of Writ of Execution)" (Annex D Petition, Id., pp. 51- 62). A Reply was filed by the plaintiffs (Annex "E", Id., pp. 63- 72) and a Rejoinder was also filed by the defendants (Annex "E", Petition, Id., pp. 73-78). The lower court issued the Order dated March 13, 1989 which dismissed the separate petitions for relief from judgment filed by Franklin Fuentebella, George Lacson, Fernando Ballesteros, and Antonio Lopez in one petition; Romeo Guanzon as sugar producer and president of National Federation of Sugar Cane Planters; PASSI (Iloilo) Sugar Central, Inc., represented by Romeo Villavicencio; the Independent Sugar Planters represented by Corazon Sagimalet (In a Motion for Intervention which substituted as a Petition for Relief from Judgment); and Zosimo Maravilla, Rosendo dela Rama and Bibiano Sabino (Annex "G", Petition, Id., pp. 79-98). This Order dated March 13, 1989 (which as aforesaid, dismissed the petitions for relief from judgment) is the first of the orders now being assailed. On March 21, 1989, the lower court issued the second of the assailed orders which granted a second motion to resolve a pending motion for issuance of a writ of execution and allowed the issuance of an alias writ of execution in words, thus: Let an alias writ of execution be issued for the final implementation of the Judgment on Compromise Agreement, dated June 2, 1986, the only remaining provision of said judgment is the 10% attorney's fees of counsels for the plaintiffs (Paragraph 12 sub-section Annex "H", Petition, Id., pp. 99-100). Correspondingly, on that same date March 21, 1989, RTC Mala Deputy Sheriff Jaime K. del Rosario issued a "Notice of Delivery of Money" asking the RPB to "pay in cash the 10% of P45,293,552.60 to Attys. Roger Reyes, Ernesto Treyes, Jr. and Eutiquio Fudolin, Jr. ... immediately upon receipt of this notice" (Annex "I", Petition, Id., p. 101). And on March 27, 1989, the third of the questioned orders was issued by the lower court, in response to the "Ex-Parte Motion to Require Officers of Trustee Republic Planters Bank to Deliver Amount Subject of Alias Writ of Execution", requiring the officers of the RPB named therein to "appear before the Court on March 29,1989 at 10:30 in the morning to explain why they should not be cited for contempt of court for defying ... the alias writ of execution." (Annex "J", Petition, Id. pp. 102-103). The instant petition was filed in this court on March 29, 1989, ...
Parenthetically, it may also be added that, as stated in paragraph 15 of the instant petition, the producers and producer organizations who filed various petitions for relief from the judgment based on the compromise agreement have appealed to the Court of Appeals the Order of 13 March 1989 denying their petitions. 2 In the instant petition petitioners limit their grounds to only two errors allegedly committed by respondent Court of Appeals, namely: (a) it erred in holding that neither the OGCC nor the SRA can represent the Government of the Philippines in the action before it and (b) it deviated from the decision of the Ninth Division of said court in CAGR SP No. 11046 (Kramer, et al. vs. Hon. Doroteo, Caeba, et al. promulgated on 16 March 1987), which declared that there was no valid class suit and the controversial compromise agreement did not extend to the 40,000 unnamed sugar producers. 3 In the resolution of 26 October 1989 We required respondents to comment on the petition and issued a temporary restraining order directing respondent Judge to desist and refrain from further proceeding in Civil Case No. 86-35880, entitled Republic Planters Bank, et al. vs. Philippine Sugar Commission, et al. 4

118
On 23 November 1989 petitioners filed a manifestation informing this Court that at 9:30 a.m. on 26 October 1989, private respondents, accompanied by respondents sheriff and a squad of police Special Action Force, swooped upon RPB's Bacolod Branch and divested a teller of money from her booth allegedly because the branch manager had instructed the bank personnel to close the bank vault while the enforcement of the court order was being verified - with the head office in Manila; the amount taken was P179,955.31; these acts were allegedly done by virtue of, among others, the orders dated October 24 and 25, 1989 of respondent judge ordering the implementation of an alias Writ of Execution dated 21 March 1989 and the Writ of Execution dated 21 March 1986; and claiming that what was enforced was an expired writ. 5 In Our resolution of 5 December 1989 respondents were required to comment on this manifestation.
6

After motions for extension of time to file their Comments on the petition, separately filed by the private respondents and the Solicitor General for the public respondents, were granted, the former ultimately filed their Comment on 20 December 1989. 7 The Solicitor General filed his Comment on 4 January 1990. 8

In his Comment the Solicitor General maintains that the SRA has no legal personality to file the instant petition in the name of the Republic of the Philippines for under its charter, Executive Order No. 18, the SRA is not vested with legal capacity to sue. He further argues that the SRA was not a party to the court-approved compromise agreement in Civil Case No. 8635880 which provided for the questioned 10% attorney's fees; PHILSUCOM and NASUTRA, which were parties thereto, did not file any action to annul the compromise agreement; that while Executive Order No. 18 abolished the PHILSUCOM, the latter's juridical personality was to continue for three (3) years, during which period it may prosecute and defend suits against it; and that, finally, even if SRA has the capacity to sue, it cannot still bring any action on behalf of the Republic of the Philippines as this can be done only by the Office of the Solicitor General per Section 1 of P.D. No. 478. The Solicitor General likewise stresses that the interest of the national government in this case is confined only to the amount remaining in RPB subject to legal subrogation; the judgment on the compromise agreement had long become final and executory; and that no reversible error was committed by respondent judge and respondent Court of Appeals. Private respondents assert that the SRA and RPB do not have the legal authority to sue for and in behalf of the Republic of the Philippines. In respect to the former, their conclusion is supported by almost the same arguments as that asserted by the Solicitor General. As regards the RPB, they maintain that it "is a government-controlled corporation engaged in the banking business with corporate powers vested in a Board of Directors," hence, it is "legally untenable for such a banking institution, even assuming that it is government-controlled, to initiate suits for and in behalf of the Republic of the Philippines." p.171, Rollo). They further argued that petitioners have no legal personality to initiate the instant petition for (a) SRA is not a party in the case before the trial court; the only reason why it became involved was because of the contempt proceedings initiated by private respondents against SRA's Arsenio Yulo, Carlos Ledesma and Bibiano Sabino for issuing Sugar Orders No. 9 and 14; and that neither can it be presumed that SRA had substituted defendants PHILSUCOM and the NASUTRA in the case as both continue to legally exist for the purpose of prosecuting and defending suits in liquidation of its affairs; both did not file any petition for relief from judgment questioning the validity of the judgment of the trial court approving the compromise agreement; and that, moreover, RPB was a signatory to the Compromise Agreement as a Trustee and, as such, it regarded itself as only a nominal party and in a series of pleadings it recognized the final and executory nature of the decision approving the compromise agreement. As to the second assigned error, private respondents pointed out that the Ninth Division of the Court of Appeals did not rule in C.A.-G.R. No. 11046 that Civil Case No. 86-35880 before the trial court was not a class suit, and whether or not it was a class suit was not an issue therein.
On 15 January 1990 petitioners filed a motion for leave to file consolidated reply, which We granted in the resolution of 18 January 1990. 9 On 18 January 1990 petitioners filed a Manifestation and Motion 10 "wherein they informed the Court that despite the temporary restraining order issued on 26 October 1989, respondent Judge, to whom the Order was addressed, continued to hear the case, particularly on the whereabouts of 177,087.14 piculs of sugar for the crop year 1984-1985 allegedly stored in the different warehouses throughout the country".

119
In the resolution of 30 January 1990 11 We required respondent judge to show cause why no disciplinary action should be taken against her for failure to comply with the resolution of 26 October 1989 ordering her to refrain from further proceeding with Civil Case No. 86-35880 and to answer why she should not be cited for contempt of court for such failure, within ten (10) days from notice. On 8 March 1990 petitioners filed their Consolidated Reply to the Comment with Motion to Dismiss filed by private respondents and the Comment of the Solicitor General. 12 On 5 April 1990 private respondents filed a Rejoinder to the Consolidated Reply. 13 On 16 April 1990 respondent judge, through the OSG, filed her Compliance as required by the Resolution of 30 January 1990. 14 She claims that she did not defy the temporary restraining order issued by this Court on 26 October 1989 because the petitioners sought for the issuance of the temporary restraining order to stop the enforcement of the decision of the respondent Court of Appeals in CA GR No. 17188 dated October 13, 1989; hence, the temporary restraining order that this Court issued "actually orders herein respondent judge to desist from enforcing the Decision of the respondent Court of Appeals in CAGR No. 17188 which is the subject of the instant petition for review". Consequently, she stresses, her 15 December 1989 order was not issued in defiance of the restraining resolution; said order pertains exclusively to the whereabouts of the 177,087.14 piculs of physical sugar for the crop year 1984-1985 and did not in any way attempt to enforce the questioned decisions of the court a quo and the Court of Appeals to the prejudice of petitioner's right to appeal. In Our resolution of 15 May 1990 15 We resolved to consider the comments of respondents as Answers to the petition, give due course to the petition, require the parties to submit their respective memoranda within thirty days from notice, and to note the compliance of respondent judge. Petitioners filed their memorandum on 28 June 1990. 16 Private respondents sent theirs by registered mail on 22 August 1990 which this Court actually received on 8 September 1990. 17 We shall now take up the assigned errors.

I. The Court of Appeals correctly ruled that petitioner Sugar Regulatory Administration may not lawfully bring an action on behalf of the Republic of the Philippines and that the Office of the Government Corporate Counsel does not have the authority to represent said petitioner in this case. Executive Order No. 18, enacted on 28 May 1986 and which took effect immediately, abolished the Philippine Sugar Commission (PHILSUCOM) and created the Sugar Regulatory Administration (SRA) which shall be under the Office of the President. However, under the third paragraph of Section 13 thereof, the PHILSUCOM was allowed to continue as a juridical entity for three (3) years for the purpose of prosecuting and defending suits by or against it and enabling it to settle and close its affairs, to dispose of and convey its property and to distribute its assets, but not for the purpose of continuing the functions for which it was established, under the supervision of the SRA.
Section 3 of said Executive Order enumerates the powers and functions of the SRA; but it does not specifically include the power to represent the Republic of the Philippines in suits filed by or against it, nor the power to sue and be sued although it has the power to "enter, make and execute routinary contracts as may be necessary for or incidental to the attainment of its purposes between any persons, firms, public or private, and the Government of the Philippines" and "[t]o do all such other things, transact such other businesses and perform such functions directly or indirectly incidental or conducive to the attainment of the purposes of the Sugar Regulatory Administration." 18 Section 4 thereof provides for the governing board of the Administration, known as the Sugar Board, which shall exercise "[a]ll the corporate powers" of the SRA. Its specific functions are enumerated in Section 6; however, the enumeration does not include the power to represent the Republic of the Philippines, although among such functions is "[t]o enter into contracts, transactions, or undertakings of whatever nature which are necessary or incidental to its functions and objectives with any natural or juridical persons and with any foreign government institutions, private corporations, partnership or private individuals. 19

It is apparent that its charter does not grant the SRA the power to represent the Republic of the Philippines in suits filed by or against the latter.

120
It is a fundamental rule that an administrative agency has only such powers as are expressly granted to it by law and those that are necessarily implied in the exercise thereof. (Guerzon vs Court of Appeals, et al., 77707, August 8, 1988, 164 SCRA 182,189, citing Makati Stock Exchange, Inc. vs. SEC, 14 SCRA 620, and Sy vs. Central Bank, 70 SCRA 570.) 20 The SRA no doubt, is an administrative agency or body. An administrative agency is defined as "[a] government body charged with administering and implementing particular legislation. Examples are workers' compensation commissions ... and the like. ... The term 'agency' includes any department, independent establishment, commission, administration, authority board or bureau ... 21

The power to represent the Republic of the Philippines in any suit by or against it having been withheld from SRA, it following that the latter cannot institute the instant petition and the petition in C.A.-G.R. No. 17188 on behalf of the Republic of the Philippines. This conclusion does not, however, mean that the SRA cannot sued and be sued. This power can be implied from its powers to make and execute routinary contracts as may be necessary for or incidental to the attainment of its purposes between any persons, firms public or private, and the Government of the Philippines and to do all such other things, transact such other businesses and perform such other functions directly or indirectly incidental or conducive to the attainment of the purposes of the SRA and the powers of its governing board to enter into contracts, transactions, or undertaking of whatever nature which are necessary or incidental to its functions and objectives with any natural or juridical persons and with any foreign government institutions, private corporations, partnership or private individuals. The Court of Appeals also correctly ruled that the OGCC can represent neither the SRA nor the Republic of the Philippines. We do not, however, share the view that only the Office of the Solicitor General can represent the SRA.
The entry of appearance by the OGCC for the SRA was precipitated by the sudden turn-about of the Office of the Solicitor General. Records show that the OSG eventually represented the PHILSUCOM, NASUTRA and SRA in the trial court. However, on 29 January 1988 it filed a Manifestation dated January 27, 1988 informing the court that its appearance in the case "is limited to the issues relating only to the contempt proceedings against the public respondents and is not concerned with the other issues raised by various parties in their petitions for relief". 22 By reason thereof, the Chairman/Administrator of SRA, Mr. Arsenio Yulo, Jr., sent a letter 23 dated 6 April 1988 to the Solicitor General, informing him that since the appearance of the OSG is limited and that it has taken a different position, SRA's only alternative is to seek another representative and that much to its regret, it is constrained to terminate OSG's services. He further informed the Solicitor General that the case is being indorsed to the Office of the Government Corporate Counsel for appropriate legal action pursuant to P.D. No. 478. There is, however, no showing that the OSG withdrew its appearance for PHILSUCOM, NASUTRA or the SRA in the trial court. On the contrary, per its Manifestation dated 8 February 1990, and filed with this Court on 12 February 1990, 24 it "has retained its appearance" "on behalf of the Republic of the Philippines to recover whatever amount may be owing to the National Treasury by virtue of legal subrogation." Also on April 6,1988, SRA sent a letter 25 to OGCC to engage its legal services to represent SRA as successor agency of the PHILSUCOM in the case pending before the trial court. The OGCC, availing of P.D. No. 1415, the law creating it, particularly Section 1 which, as quoted by it on page 16 of the Petition, 26 reads:

SECTION 1. The Office of the Government Corporate Counsel shall be the principal law office of all government-owned and controlled corporations, including their subsidiaries except as may otherwise be provided by their respective charters or authorized by the President (Emphasis supplied).
sent a letter to the Office of the President, "in essence, requesting for authority for OGCC to represent SRA in the case before the trial court," This was favorably acted by Executive Secretary Catalino Macaraig, Jr. 27

Indeed, under Section 35, Chapter 12, Title III of Book IV of the Administrative Code of 1987 (Executive Order No. 292) the Solicitor General is the lawyer of the government, its agencies and instrumentalities, and its officials or agents. Said Section reads as follows:

121
SECTION 35. Functions and Organization. The Office of the Solicitor General shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of lawyers. When authorized by the President or head of the office concerned, it shall also represent government-owned and controlled corporations. The Office of the Solicitor General shall constitute the law office of the Government and, as such, shall discharge duties requiring the services of lawyers. ... . This is similar to subsection (1) of Section 1 of P.D. No. 478. In Republic, et al. vs. Partisala et al. (G.R. No. 61997, 15 November 1982, 118 SCRA 370, 373), We ruled that only the Solicitor General can bring or defend actions on behalf of the Republic of the Philippines and that, henceforth, actions filed in the name of the Republic if not initiated by the Solicitor General will be summarily dismissed.
However, in Secretary Oscar Orbos vs. Civil Service Commission, et al., G.R. No. 92561, 12 September 1990, 28 We stated:

In the discharge of this task, the Solicitor General must see to it that the best interest of the government is upheld within the limits set by law. When confronted with a situation where one government office takes an adverse position against another government agency, as in this case, the Solicitor General should not refrain from performing his duty as the lawyer of the government. It is incumbent upon him to present to the court what he considers should legally uphold the best interest of the government although it may run counter to a client's position. In such an instance the government office adversely affected by the position taken by the Solicitor General, if it still believes in the merit of its case, may appear in its own behalf through its legal personnel or representative. Consequently, the SRA need not be represented by the Office of the Solicitor General. It may appear in its own behalf through its legal personnel or representative. The question that logically crops up then is: May it be represented by the OGCC? Respondents hold the negative view. Petitioners maintain otherwise, for the reason that pursuant to Section 1 of the charter of the OGCC (P.D. No. 1415), as they quoted, the Office of the President, through the Executive Secretary, has authorized it to represent the SRA. The specific basis for such authority is the alleged portion of the exceptionary clause therein, reading "... or authorized by the President." The words or authorized by the President are not found in the law. We are not aware of any law, decree or executive order which amended Section 1 of P.D. No. 1415 by inserting therein said words. Besides, even granting for the sake of argument that such words are written into the law, such exception cannot confer upon the OGCC authority to represent the SRA. The exception simply means that although the OGCC is the principal law office of all government-owned and controlled corporations including their subsidiaries, the President may not allow it to act as lawyer for a specified government-owned or controlled corporation or a subsidiary thereof. It will be noted that under Section 1 of P.D. No. 478 the President may authorize the OSG to represent government-owned or controlled corporations. In short, the exception limits, rather than expands, the authority of the OGCC. Thus, the so-called approval by the Executive Secretary of the request of OGCC to represent the SRA is based on an erroneous interpretation of the law. In any case, even if we grant that there was such an exception, as well construed in the manner urged by petitioners, it must be deemed, nevertheless, to have been repealed by the Administrative Code of 1987. Section 10, Chapter 3, Title III, Book IV thereof on the Office of the Government Corporate counsel does not contain the purported exception. It reads: SECTION 10. Office of the Government Corporate Counsel. The Office of the Government Corporate Counsel (OGCC) shall act as the principal law office of all government-owned or controlled corporations, their subsidiaries, other corporate offsprings and government acquired asset corporations and shall exercise control and supervision over all legal departments or divisions maintained separately and such powers and functions as are now or may hereafter be provided by law. In the exercise of such control or suspension, the Government Corporate Counsel shall promulgate rules and regulations to effectively implement the objectives of the Office. ...
Since the SRA is neither a government-owned or controlled corporation nor a subsidiary thereof, OGCC does not have the authority to represent it. As to who may represent it, the Orbos case 29 provides the answer.

122
The case of the RPB is, however, different. It is admitted to be a government-owned corporation. The OGCC can, therefore, legally represent RPB in actions filed by or against it. Unfortunately, this issue was not categorically and expressly addressed by the Court of Appeals and has not been raised in the petition. Anyway, even if We have to rule that OGCC's appearance for the RPB in the petition before the Court of Appeals in CAGR No. 17188 was proper, the result would be the same dismissal of the petition. As also correctly pointed out by the Court of Appeals, having received benefits by way of trustee's fees, the RPB may not question the right of private respondents to attorney's fees; its only obligation under the judgment based on compromise was to pay the attorney's fees from out of the funds it held in trust. II.
The second assigned error is without merit. Petitioners have misread the decision of the Court of Appeals in CAGR SP No. 11046 (Ernesto Kramer, et al. vs. Hon. Doroteo Caneba et al. promulgated on 16 March 1987). 30 The case was a petition for certiorari and mandamus with a prayer for preliminary injunction wherein petitioners principally prayed the Court to declare null and void the order of respondent judge of 16 December 1986 and to order him to issue the writ of execution of the judgment of 2 June 1986, require respondent NASUTRA to account and turn over to petitioners any and all sales proceeds of 1984-1985 sugar from 2 June 1986 up to the present in favor of respondent Trustee Bank RPB for proper distribution to petitioners, issue an order requiring respondent Trustee Bank to distribute without delay all the sales proceeds of the 1984-1985 sugar in its possession in accordance with the judgment of respondent court, and issue a restraining order/preliminary injunction enjoining the SRA, its agents/representatives from implementing Sugar Order No. 9 dated 25 September 1986. Although in the body of the opinion a discussion was made on the matter of the sufficiency of representation to make Civil Case No. 86-35880 a class suit, the resolution of the petition was not in any way based thereon or influenced by it. As a matter of fact, the Court categorically stated that it was premature to rule on that issue because of the pendency of the petition for relief from judgment and interventions. The full disquisition of the Court of Appeals on this point reads:

xxx xxx xxx At the outset, let it be stated that the incidents which arose from the class suit before the respondent court are predominantly related to the ten percent (10%) attorney's fees stipulated in the compromise agreement approved by the respondent court in its June 2, 1986 judgment in favor of petitioner's counsels Atty. Roger Z. Reyes, Ernesto L. Treyes, Jr. and Eutiquio M. Fudolin, Jr. In the said class suit, only the five original plaintiffs and producers Zosimo Maravilla, for himself and in representation of Rosendo dela Rama, Roberto Mascurafia and Bibiano Sabino per Special Power of Attorney, and Ernesto Kramer represented by Atty. Roger Z. Reyes per Special Power of Attorney, have authorized said Attys. Reyes, Treyes, Jr. and Fudolin, Jr. to represent them as counsel. On page 18 of the instant petition, petitioners allege that there is no necessity to secure Special Powers of Attorney from the unnamed parties in a class suit, and the failure of petitioners' counsel to do so does not constitute fraud, the named parties having contest over the class suit.' By such statement, petitioners and their counsels admit their lack of authority from the rest of the alleged 40,000 sugar producers to file the class suit and enter into the compromise agreement. Section 12, Rule 3, Revised Rules of Court provides that in order that one or more may sue for the benefit of others as a class suit, it is necessary that 'the court shall make sure that the parties actually before it aresufficiently numerous and representative so that all interests are fully protected. (Dimayuga, et al. vs. CIR, et al., G.R. No. L-1 0213, May 27, 1957). For that matter, in the case below, therein plaintiffs Zosimo Maravilla, Rosendo dela Rama and Bibiano Sabino filed with the respondent court a motion to partially annul decision and/or petition for relief against the said ten (10%) percent attorney's fees on the allegation that they were deceived into signing the compromise agreement believing, as was agreed upon during the negotiations, that the ten (10%) percent of whatever would be collected would go to a trust fund for the benefit of the sugar farmers and producers and not as attorney's fees. Also, petition, for relief was filed by thirteen other alleged sugar producers principally on the ground that the compromise agreement entered into was without their express authority by way of Special Power of Attorney and that the class suit was unnecessary. Some of these sugar producers are the Association de Agricultores de la Region Oesta de Batangas, Inc. (AAROB) with 742 members; the Samahang Mag-aasukal sa Kanluran Batangas (SABA) with 4,000 members and Independent Sugar Farmers, Inc. with 200 members.

123
Here is a situation, as pointed out by respondent NASUTRA and SRA, where petitioners in filing the class suit claim to represent 40,000 sugar producers all over the country and yet when some of these producers filed petition for relief and interventions, petitioners 'disowned' them, stating that the other sugar producers have no personality to intervene, not having been named parties to the class suit. It should not be overlooked that the said sugar producers, although not named parties in the class suit, are the very alleged persons represented in the class suit. They certainly have interests in the subject matter of the controversy; in the contents of the compromise agreement. The filing of petitions for relief from judgment has not been prohibited by B.P. 129. The remedy of petitions for relief from judgment is still available when a judgment is rendered by an inferior court in a case, and a party thereto, by fraud, accident, mistake or excusable negligence, has been unjustly deprived of a hearing therein, or has been prevented from taking an appeal. Section 9, paragraph 2 of BP 129 placing the original exclusive jurisdiction on the Court of Appeals to annul judgments of Regional Trial Courts has no relation to (sic) all to the petition for relief provided for in Rule 38 because these two are completely different remedies. The petitions for relief from judgment and interventions are still pending action by respondent court. In view thereof, it would be premature for this Court to resolve the issue of estoppel on the part of the said sugar producers to question the pertinent portion of the judgment of compromise, and fraud on the part of the counsels for petitioners therein. (Emphasis supplied). IV. Having disposed of the main issues, We shall now consider the motion of petitioners of 16 January 1990 to hold in contempt respondent Judge Corona Ibay-Somera for violating/defying the Temporary Restraining Order issued by Us on 26 October 1989. They allegedly "continued to hear the case particularly on the whereabouts of 177,087.14 piculs of sugar for the crop year 1984-1985 allegedly stored in different warehouses throughout the country," and that she even further reset the hearing of the case on January 19, 1990 notwithstanding the cautionary manifestation filed by petitioners during the 15 December 1989 hearing that said continued hearing would be a violation of the TRO. In the resolution of 26 October 1989, this Court specifically ordered respondent Judge to desist and refrain from further proceeding in Civil Case No. 86-35880, entitled Republic Planters Bank, et al. vs. Philippine Sugar Commission, et al. In her Compliance, respondent judge explained that the TRO in question actually ordered her to desist from enforcing the Decision of the respondent Court of Appeals in CAGR No. 17188, which is the subject of the instant petition, and that her "only honest motivation "in making the inquiry is to see to it that while the instant petition is pending ... , whatever funds may be owing to the Republic of the Philippines is duly preserved and protected." We find the explanation to be satisfactory. No malice attended the commission of the challenged act. We accord to respondent judge good faith in her claimed desire to preserve and protect public funds. Moreover, petitioners failed to show that the act in question caused any injury or damage to their rights or interest. IN VIEW OF ALL THE FOREGOING, the Petition is DENIED for lack of merit. Costs against petitioners. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, GrioAquino, Medialdea and Regalado, JJ., concur. Paras, J., took no part.

124

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 73974 May 31, 1995 REPUBLIC OF THE PHILIPPINES (Represented by the Director of Lands), petitioner, vs. THE REGISTER OF DEEDS OF QUEZON, MANUEL G. ATIENZA, DEVELOPMENT BANK OF THE PHILIPPINES (Lucena Branch) and INTERMEDIATE APPELLATE COURT, respondents.

ROMERO, J.: This petition for review on certiorari seeks to nullify and set aside the decision 1 of the then Intermediate Appellate Court reversing the decision of the former Court of First Instance of Quezon, Branch II at Lucena City 2 which annulled Original Certificate of Title (OCT) No. P-13840 and Free Patent (FP) No. 324198 issued to Manuel Atienza for a 17-hectare piece of land which turned out to be within the forest zone in Pagbilao, Quezon.

125
On April 18, 1967, Atienza was awarded FP No. 324198 over a parcel of land located in Ila, Malicboy, Pagbilao, Quezon, with an area of 172,028 square meters. By virtue of such award, he was issued on May 5, 1967, OCT No. P-13840. Sometime in 1968, an investigation was conducted by the Bureau of Lands in connection with alleged land grabbing activities in Pagbilao. It appeared that some of the free patents, including that of Atienza's, were fraudulently acquired. Thus, on March 19, 1970, a criminal complaint for falsification of public documents was filed in the then Court of First Instance of Quezon, Branch II, against Atienza and four other persons for allegedly falsifying their applications for free patent, the survey plans, and other documents pertinent to said applications. In its decision dated October 4, 1972, the court acquitted the accused of the crime charged but, finding that the land covered by the application for free patent of private respondent was within the forest zone, declared as null and void OCT No. P-13840 in Atienza's name and ordered the Register of Deeds of Quezon to cancel the same. Meanwhile, before the promulgation of said decision, or on May 10, 1972, then Acting Solicitor General Conrado T. Limcaoco filed for the petitioner a complaint against Atienza, the Register of Deeds of Quezon, and the Rural Bank of Sariaya, which was later dropped as defendant and, in an amended complaint, substituted by the Development Bank of the Philippines as actual mortgagee of the subject parcel of land. Docketed as Civil Case No. 7555, the complaint prayed for the declaration of nullity of FP No. 324198 and OCT No. P-13840. In his answer, Atienza claimed that the land in question was no longer within the unclassified public forest land because by the approval of his application for free patent by the Bureau of Lands, the land "was already alienable and disposable public agricultural land." Since the subject land was a very small portion of Lot 5139 of the Pagbilao Cadastre, an area which had been declared disposable public land by the cadastral court on March 9, 1932 in Cadastral Case No. 76 entitled "El Govierno Filipino de las Islas Filipinas contra Jose Abastillas, et al., G.L.R.O. cadastral Record No. 1124," he also averred that the Director of Lands had given due course to free and homestead patent applications of claimants to Lot 5139. He further alleged that through a certain Sergio Castillo, he had been in possession of the land since the Japanese occupation, cultivating it and introducing improvements thereon. The DBP, after due and proper investigation and inspection of his title, even granted him a loan with the subject property as collateral. Finally, he stated that his acquittal in the criminal case proved that he committed no fraud in his application for free patent. On July 27, 1981, the lower court rendered a decision with the categorical finding based on "solid evidence" that "the land in question was found definitely within the forest zone denominated as Project 21-A." The dispositive portion thereof reads as follows: WHEREFORE, in view of the foregoing, (J)udgment is hereby rendered: (a) Declaring as null and void Original Certificate of Title No. P-13840 in the name of defendant Manuel G. Atienza, as well as Free Patent No. V-324198; (b) Ordering defendant Manuel G. Atienza to pay the Development Bank of the Philippines, Lucena City Branch, the sum of P15,053.97, and all interests due thereon; and (c) Ordering defendant Manuel G. Atienza to pay the costs of this suit. SO ORDERED. On appeal, Atienza maintained that the land in question was not within the unclassified public forest land and therefore alienable land of the public domain. The then Intermediate Appellate Court relied only on the arguments he raised since petitioner had not filed any brief, and arrived at the conclusion that "(t)he litigated land is part of public land alienable and disposable for homestead and [F]ree Patent." On December 27, 1985, the appellate court set aside the lower court's decision, declared as valid and subsisting Atienza's OCT, and dismissed the cross-claim of the DBP.

126
After receiving a copy of said decision, Assistant Solicitor General Oswaldo D. Agcaoili informed the Director of Lands of the adverse decision of the appellate court, which noted that no appellee's brief had been filed in said court. Agcaoili also stated that the Office of the Solicitor General (OSG) had not been furnished with the appellant's brief; that the Bureau of Lands received notice of hearing of the record on appeal filed by the appellant but the OSG had not been informed of the "action taken thereon;" that since the Bureau of Lands had been furnished directly with relevant pleadings and orders, the same office should "take immediate appropriate action on the decision;" and that it may file a motion for reconsideration within fifteen (15) days from January 6, 1986, the date of receipt by the OSG of the copy of the decision sought to be appealed. On January 28, 1986, petitioner filed a motion for extension of time to file motion for reconsideration which was denied in a resolution dated February 12, 1986. Petitioner's motion for reconsideration of said resolution was likewise denied. The instant petition for review on certiorari raises the following arguments: (a) petitioner was denied due process and fair play when Atienza did not furnish it with a copy of his appellant's brief before the then Intermediate Appellate Court thereby depriving it of the opportunity to rebut his assertions which later became the sole basis of the assailed decision of December 27, 1985; (b) the appellate court erred in holding that the land in question is part of the alienable and disposable public land in complete disregard of the trial court's finding that it forms part of the unclassified public forest zone; and (c) the appellate court erred in declaring that the land in question could be alienated and disposed of in favor of Atienza. We find for the petitioner.
Appeal is an essential part of our judicial system. As such, courts should proceed with caution so as not to deprive a party of the right to appeal, particularly if the appeal is meritorious. 3 Respect for the appellant's right, however, carries with it the corresponding respect for the appellee's similar rights to fair play and justice. Thus, appeal being a purely statutory right, an appealing party must strictly comply with the requisites laid down in the Rules of Court. 4 Of paramount importance is the duty of an appellant to serve a copy of his brief upon the appellee with proof of service thereof. 5 This procedural requirement is consonant with Section 2 of Rule 13, which mandates that all pleadings and papers "shall be filed with the court, and served upon the parties affected thereby." The importance of serving copies of the brief upon the adverse party is underscored in Mozar v. Court of Appeals, 6 where the Court held that the appellees "should have been given an opportunity to file their appellee's brief in the Court of Appeals if only to emphasize the necessity of due process."

In this case, however, the Court of Appeals, oblivious of the fact that this case involves public lands requiring as it does the exercise of extraordinary caution lest said lands be dissipated and erroneously alienated to undeserving or unqualified private individuals, decided the appeal without hearing the government's side. Atienza avers that he furnished Atty. Francisco Torres, a lawyer in the Bureau of Lands and designated special attorney for the Office of the Solicitor General, with two copies of the appellant's brief, thereby implying that it was not his fault that petitioner failed to file its appellee's brief.
Such an assertion betrays a lack of comprehension of the role of the Solicitor General as government counsel or of the OSG as the government's "law office." 7 Only the Solicitor General, as the lawyer of the government, can bring or defend actions on behalf of the Republic of the Philippines and, therefore, actions filed in the name of the Republic, if not initiated by the Solicitor General, will be summarily dismissed. 8 Specifically, he is empowered to represent the Government in all land registration and related proceedings, 9 such as, an action for cancellation of title and for reversion of a homestead to the government. 10 Hence, he is entitled to be furnished with copies of all court orders, notices and decisions. Consequently, service of decisions on the Solicitor General is the proper basis for computing the reglementary period for filing appeals and for finality of decisions. His representative, who may be a lawyer from the Bureau of Lands, has no legal authority to decide whether or not an appeal should be made. 11

Service of the appellant's brief on Atty. Torres was no service at all upon the Solicitor General. It may be argued that Atty. Torres could have transmitted one of the two copies of appellant's brief upon the Solicitor General, but such omission does not excuse Atienza's failure to serve a copy of his brief directly on the Solicitor General.

127
On the part of the appellate court, its decision based solely on, and even quoting verbatim from, the appellant's brief was certainly arrived at in grave abuse of discretion. It denied appellee (petitioner herein) of the opportunity to be heard and to rebut Atienza's allegations, in rank disregard of its right to due process. Such violation of due process could have been rectified with the granting of petitioner's motion for reconsideration by the appellate court, 12 but even the door to this recourse was slammed by the appellate court with the denial of petitioner's motion for extension of time to file motion for reconsideration in a resolution dated February 12, 1986, which ruling erroneously applied the Habaluyas doctrine. 13 Such denial notwithstanding, petitioner filed its motion for reconsideration. Considering the clear allegations thereunder, the appellate court would have done well, in the interest of justice, not to blindly adhere to technical rules of procedure by dismissing outright said motion. As we declared in Villareal v. Court of Appeals: 14

. . . The requirements of due process are satisfied when the parties are afforded a fair and reasonable opportunity to explain and air their side. The essence of due process is simply the opportunity to be heard or as applied to administrative proceedings, an opportunity to explain one's side or an opportunity to seek a reconsideration of the action or ruling taken. (Emphasis supplied)
In view of the foregoing and the long-standing procedural rule that this Court may review the findings of facts of the Court of Appeals in the event that they may be contrary to those of the trial court, 15 in order to attain substantial justice, the Court now reviews the facts of the case. Under the Regalian Doctrine, all lands not otherwise clearly appearing to be privately-owned are presumed to belong to the State. Forest lands, like mineral or timber lands which are public lands, are not subject to private ownership unless they under the Constitution, become private properties. In the absence of such classification, the land remains unclassified public land until released therefrom and rendered open to disposition. 16 In our jurisdiction, the task of administering and disposing lands of the public domain belongs to the Director of Lands, and ultimately, the Secretary of Agriculture and Natural Resources 17 (now the Secretary of Environment and Natural Resources). 18 Classification of public lands is, thus, an exclusive prerogative of the Executive Department through the Office of the President. 19 Courts have no authority to do so. 20 Thus, in controversies involving the disposition of public agricultural lands, the burden of overcoming the presumption of state ownership of lands of the public domain lies upon the private claimant 21 who, in this case, is Atienza. The records show, however, that he failed to present clear, positive and absolute evidence 22 to overcome said presumption and to support his claim.

Atienza's claim is rooted in the March 9, 1932 decision of the then Court of First Instance of Tayabas in Cadastral Case No. 76, which was not given much weight by the court a quo, and for good reasons. Apart from his assertions before this Court, Atienza failed to present proof that he or his predecessor-in-interest was one of the claimants who answered the petition filed by the then Attorney-General in the said cadastral proceedings. The document reflecting said cadastral decision, a xerox copy, indicated the claimants simply as "Jose Abastillas et al." In support of that decision, Atienza presented a certification purportedly issued by someone from the Technical Reference Section of the Surveys Division, apparently of the Bureau of Lands, stating that "Lot 5886 is a portion of Lot 5139 Pagbilao Cadastre," which evidence is, however, directly controverted by the sketch plan showing that the land in controversy is actually outside the alienable and disposable public lands, although part of Lot 5139.
The fact that Atienza acquired a title to the land is of no moment, notwithstanding the indefeasibility of titles issued under the Torrens system. In Bornales v. Intermediate Appellate Court, 23 we ruled that the indefeasibility of a certificate of title cannot be invoked by one who procured the same by means of fraud. The "fraud" contemplated by the law (Sec. 32, P.D. 1529) is actual and extrinsic, that is, "an intentional omission of fact required by law," 24 which in the case at bench consisted in the failure of Atienza to state that the land sought to be registered still formed part of the unclassified forest lands.

WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE and the decision of the court a quodated July 27, 1981, is REINSTATED.

128
SO ORDERED. Feliciano, Melo, Vitug and Francisco, JJ., concur.

Footnotes

1 Penned by Associate Justice Mariano A. Zosa and concurred in by Associate Justices Jorge R. Coquia, Floreliana Castro-Bartolome and Bienvenido C. Ejercito. 2 Presided by Judge Benigno M. Puno. 3 Goulds Pumps (Phils.), Inc. v. Court of Appeals, G.R. No. 102748, June 30, 1993, 224 SCRA 127. 4 U-Sing Button and Buckle Industry v. NLRC, G.R. No. 94754, May 11, 1993, 221 SCRA 680, citing Ozaeta v. Court of Appeals, G.R. No. 83281, December 4, 1989, 179 SCRA 800. 5 Section 10, Rule 96, Rules of Court. 6 G.R. No. 79403, November 13, 1989, 179 SCRA 353. 7 Section 35, Title III, Chapter 12, Revised Administrative Code of 1987. 8 Republic v. Court of Appeals, G.R. No. 90482, August 5, 1991, 200 SCRA 226, citing Republic v. Partisala, G.R. No. 61997, November 15, 1982, 118 SCRA 370. 9 Sec. 35[5], Title III, Chapter 12, Revised Administrative Code of 1987. 10 Causapin v. Court of Appeals, G.R. No. 107432, July 4, 1994, 233 SCRA 615. 11 Republic v. Court of Appeals, L-48327, August 21, 1991, 201 SCRA 1; Republic v. Andaya, G.R. No. 55854, February 23, 1990,182 SCRA 524. 12 German Management & Services, Inc. v. Court of Appeals, G.R. No. 76216, September 14, 1989, 177 SCRA 495. 13 The ruling in Habaluyas Enterprises, Inc. v. Habaluyas (G.R. No. 70895, August 5, 1985, 138 SCRA 46) that the fifteen-day period within which a party may file a motion for reconsideration of a final order or ruling of the Regional Trial Court may not be extended has been reconsidered in the resolution of May 30, 1986 (142 SCRA 208), where the Court, after categorically stating that "the law and the Rules of Court do not expressly prohibit the filing of a motion for extension of time to file a motion for reconsideration of a final order or judgment," held that the rule that "no motion for extension of time to file a motion for new trial or reconsideration may be filed with the . . . Intermediate Appellate Court" shall be strictly enforced "beginning one month after the promulgation of this Resolution" (or more than four months after the resolution of February 12, 1986 was issued). The Court later clarified the modes and periods of appeal in Lacsamana v. Second Special Cases Division of the Intermediate Appellate Court (G.R. No. 73146-53, August 26, 1986, 143 SCRA 643). It was only on April 7, 1988, however, that the Court resolved to formally adopt "as a general policy" the rule that reconsideration shall be granted after the Court (or the Court of Appeals) has rendered its judgment." 14 G.R. No. 97505, March 1, 1993, 219 SCRA 293. 15 Gaw v. Intermediate Appellate Court, G.R. No. 70451, March 24, 1993, 220 SCRA 405; Massive Construction, Inc. v. Intermediate Appellate Court, G.R. Nos. 70310-11, June 1, 1993, 223 SCRA 1; Crisostomo v. Court of Appeals, G.R. Nos. 91383-84, May 31, 1991, 197 SCRA 833.

129
16 Director of Lands v. Intermediate Appellate Court, G.R. No. 73246, March 2, 1993, 219 SCRA 339. 17 Busante v. Court of Appeals, G.R. No. 97389, October 20, 1992, 214 SCRA 774. 18 Under Section 15, Title XIV of the Revised Administrative Code of 1987, the Lands Management Bureau "shall absorb the functions and powers of the Bureau of Lands abolished by Executive Order No. 131," including the "management and disposition of alienable and disposable lands of the public domain." 19 Director of Lands v. Aquino, G.R. No. 31688, December 17, 1990, 192 SCRA 296. 20 Director of Lands v. Intermediate Appellate Court, supra. 21 Ibid. 22 National Power Corporation v. Court of Appeals, G.R. No. 45664, January 29, 1993, 218 SCRA 31. 23 G.R. No. L-75336, October 18, 1988, 166 SCRA 519. 24 Pea, Registration of Land Titles and Deeds, 1982, p. 113.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 109703 July 5, 1994 REALTY EXCHANGE VENTURE CORPORATION AND/OR MAGDIWANG, REALTY CORPORATION, petitioner, vs. LUCINA S. SENDINO and the OFFICE OF THE EXECUTIVE SECRETARY, Office of the President, Malacaang, Manila, respondents. Siruelo, Muyco & Associates Law Office for petitioner. Sisenando Villaluz, Jr. for private respondent.

KAPUNAN, J.:

130
Private respondent Lucina C. Sendino entered into a reservation agreement with Realty Exchange Venture, Inc. (REVI) for a 120-square meter lot in Raymondville Subdivision in Sucat, Paranaque for P307,800.00 as its purchase price. 1 She paid P1,000.00 as partial reservation fee on January 15, 1989 and completed payment of this fee on January 20, 1989 by paying P4,000.00. 2 On July 18, 1989, private respondent paid REVI P16,600.00 as full downpayment on the purchase price. 3 However, she was advised by REVI to change her co-maker, which she agreed, asking for an extension of one month to do so. For alleged non-compliance with the requirement of submission of the appropriate documents under the terms of the original agreement, 4 REVI, through its Vice-President for Marketing, informed respondent of the cancellation of the contract on the 31st of July 1989. 5

On April 20, 1990, private respondent filed a complaint for Specific Performance against REVI with the office of Appeals, Adjudication and Legal Affairs (OAALA) of the Housing and Land Use Regulatory Board (HLURB) asking that respondent be ordered: 1. To comply and continue with the sale of the house and lot, Block 4, Lot 17 at the Raymondville Subdivision, Sucat Road, Paranaque, Metro Manila; 2. To pay complainant actual, nominal and moral damages, the amount of which will be proved in the hearing; 3. To pay complainant attorney's fee in the sum of P10,000.00;
4. To pay complainant exemplary damages in the sum of P10,000.00 to set an example and to avoid a repetition of such illegal and unsound business practices of the respondent. 6

This petition was amended on August 17, 1990 by impleading petitioners Magdiwang Realty Corporation (MRC) which appeared to be the registered owner of the subject lot as per TCT No. 76023.
On April 3, 1991 the HLURB, whose authority to hear and decide the complaint was challenged by REVI in its answer, 7rendered its judgment in favor of private respondent and ordered petitioners to continue with the sale of the house and lot and to pay private respondent P5,000 as moral damages, P5,000 as exemplary damages and P6,000 as attorney's fees and costs of the suit. 8 An appeal from this decision was taken to the HLURB OAALA Arbiter, which affirmed the Board's decision. The decision of the OAALA Arbiter was appealed to the Office of the President, herein public respondent.

On January 7, 1993, the public respondent rendered its decision dismissing the petitioners' appeal. Motion for reconsideration of the decision was denied by the public respondent on January 26, 1993. Consequently petitioners come before this Court, in this petition, which the Court resolves to treat as a petition for certiorari, raising the following issues: I PUBLIC RESPONDENT COMMITTED SERIOUS ERROR IN DECLARING THAT THE HOUSING AND LAND USE REGULATORY BOARD HAS QUASI-JUDICIAL FUNCTIONS, NOTWITHSTANDING ABSENCE OF EXPRESS GRANT BY EXECUTIVE ORDER NO. 90 OF DECEMBER 17, 1986 WHICH CREATED IT. AND EVEN IF THE HLURB HAS QUASI-JUDICIAL FUNCTIONS, PUBLIC RESPONDENT LIKEWISE SERIOUSLY ERRED IN DECLARING THAT THE BOARD OF COMMISSIONERS IS ALLOWED TO SIT IN A DECISION TO RENDER JUDGMENT AND TO DELEGATE ITS QUASI-JUDICIAL AUTHORITY TO A SUBORDINATE OFFICE. II PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN DECLARING THAT THE LOT SUBJECT OF THE CONTRACT SOUGHT TO BE ENFORCED IS PARAPHERNAL DESPITE ADMISSION OF ITS CONJUGAL NATURE. III

131
PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN DECLARING THAT ONLY NOTARIAL NOTICE OF RESCISSION MAY VALIDLY CANCEL A RESERVATION AGREEMENT PURSUANT TO REPUBLIC ACT NO. 6552. As the first and third issues raised by the petitioners strike at the core of the case at bench, this Court deems it appropriate to initially dispose of the issue of private respondent's capacity to bring her complaint before the HLURBOAALA.
It is settled that rules of procedure are as a matter of course construed liberally in proceedings before administrative bodies. 9 In the instant case, the original suit for specific performance and damages was filed by the private respondent with the HLURBOAALA, an administrative body not hamstrung by the strict procedural technicalities of the Rules of Court. Under the circumstances, it was certainly appropriate for the HLURB-OAALA to have acted on the substantive questions relating to the validity of petitioners' unilateral rescission of the contract without unduly concerning itself with a mere procedural slip, the nonjoinder of private petitioner's husband in the original complaint before the HLURB. Moreover, since petitioners participated in the administrative proceedings without objecting to or raising the procedural infirmity, they were certainly estopped from raising it on appeal before the Office of the President and before this Court.

Proceeding to the principal issues raised by the petitioner, while E.O. 85 dated 12 December 1986 abolished the Ministry of Human Settlements (MHS), it is patently clear from a reading of its provisions that the said executive order did not abolish the Human Settlements Regulatory Commission (HSRC) which continued to exercise its powers and functions even after the Ministry of Human Settlements ceased to exist. In spite of the Aquino Government's stated intention of eradicating what it considered the vestiges of the previous regime, it was not its intention to create a vacuum by abolishing those juridical entities, agencies, corporations, etc., attached to or supervised by the MHS, which performed vital administrative functions. Pertinently, Section 3 of E.O. 85 mandates that: . . . The final disposition and final organizational alignment or attachment of the juridical entities, agencies, corporations and councils attached to, or under the administrative supervision of the MHS including their respective existing projects, appropriations and other assets shall be subject to subsequent enactments by the President.
Pursuant to this provision therefore, the President subsequently issued Executive Order No. 90, series of 1986, recognizing the Human Settlements Regulatory Commission (renamed the HLURB) as one of the principal housing agencies of the government. Prior to this, Executive Order No. 648 in 1981 transferred all the functions of the National Housing Authority (pursuant to Presidential Decrees Nos. 957, 1216 and 1344) to the Human Settlements Regulatory Commission (HSRC) consolidating all regulatory functions relating to land use and housing development in a single entity. 10 Being the sole regulatory body for housing and land development, the renamed body, the HLURB, 11 would have been reduced to a functionally sterile entity if, as the petitioner contends, it lacked the powers exercised by its predecessor which included the power to settle disputes concerning land use and housing development and acquisition. Moreover, this Court has had the occasion to definitively rule on the question as to whether or not the Housing and Land Use Regulatory Board could exercise the same quantum of judicial or quasi-judicial powers possessed by the HSRC under the Ministry of Human Settlements in the exercise of its regulatory functions when it held, in United Housing Corporation vs. Hon. Dayrit12 that:

As explicitly provided by law, jurisdiction over actions for specific performance of contractual and statutory obligations filed by buyers of subdivision lot or condominium unit against the owner or developer, is vested exclusively in the HSRC, Section 1 of PD 1344, in no uncertain terms, provides: Sec. 1. In the exercise of its functions to regulate real estate trade and business and in addition to its powers provided for in Presidential Decree No. 957, the National Housing Authority shall have exclusive jurisdiction to hear and decide cases of the following nature: A. Unsound real estate business practices; B. Claims involving refund and any other claims filed by subdivision lot or condominium unit buyer against the project owner, developer, dealer, broker or salesman; and C. Cases involving specific performance of contractual and statutory obligations filed by buyers of subdivision lot or condominium unit against the owner, developer, dealer, broker or salesman. (Emphasis Ours)

132
This is reinforced by section 8 of EO 648 (otherwise known as the Charter of the Human Settlements Regulatory Commission) which took effect on February 7, 1981, thus: Sec. 8. Transfer of Functions. The Regulatory functions of the National Housing Authority pursuant to Presidential Decree Nos. 957, 1216, 1344 and other related laws are hereby transferred to the Human Settlements Regulatory Commission. . . . Among the regulatory functions are . . . (11) Hear and decide cases of unsound real estate business practices, claims involving refund filed against project owners, developers, dealers, brokers, or salesmen and cases of specific performance (Emphasis Ours). Private respondents reliance, therefore, on sections 1 and 8 of the Judiciary Reorganization Act of 1980 is untenable. Thus, as correctly pointed out by petitioner, section 19, paragraph 6 of said law is material to the issue of where jurisdiction lies, and We quote: Sec. 19. . . . (6) In all other cases not within the exclusive jurisdiction of any court, tribunal, persons or bodyexercising judicial or quasijudicial functions. xxx xxx xxx Neither can We accede to private respondents' claim that resort to the courts is justified under section 41 of PD 957 specifically under the phrase "legal remedies that may be available to aggrieved subdivision lot buyers."
There is no question that a statute may vest exclusive original jurisdiction in an administrative agency over certain disputes and controversies falling within the agency's special expertise. The constitutionality of such grant of exclusive jurisdiction to the National Housing Authority (now Housing and Land Use Regulatory Board) over cases involving the sale of lots in commercial subdivisions was upheld in Tropical Homes Inc. v. National Housing Authority (152 SCRA 540 [1987]) and again sustained in a later decision in Antipolo Realty Corporation v. National Housing Authority (153 SCRA 399 [1987]) where We restated that the National Housing Authority (now HLURB) shall have exclusive jurisdiction to regulate the real estate trade and business in accordance with the terms of PD No. 957 which defines the quantum of judicial or quasi-judicial powers of said agency. 13 Clearly, therefore, the HLURB properly exercised its jurisdiction over the case filed by the petitioners with its adjudicative body, the OAALA, in ordering petitioners to comply with their obligations arising from the Reservation Agreement. In general, the quantum of judicial or quasi-judicial powers which an administrative agency may exercise is defined in the agency's enabling act. In view of the Court's pronouncement in United Housing Corporation vs. Hon. Dayrit, supra , recognizing the HLURB as the successor agency of the HSRC's powers and functions, it therefore follows that the transfer of such functions from the NHA to the HRSC effected by Section 8 of E.O. 648, series of 1981, thereby resulted in the acquisition by the HLURB of adjudicatory powers which included the power to "(h)ear and decide cases of unsound real estate business practices . . . and cases of specific performance." 14 Obviously, in the exercise of its powers and functions, the HLURB must interpret and apply contracts, determine the rights of the parties under these contracts, and award damages whenever appropriate. 15 We fail to see how the HSRC which possessed jurisdiction over the actions for specific performance for contractual and statutory obligations filed by buyers of subdivision lots against developers had suddenly lots its adjudicatory powers by the mere fiat of a change in name through E.O. 90. One thrust of the multiplication of administrative agencies is that the interpretation of such contracts and agreements and the determination of private rights under these agreements is no longer a uniquely judicial function. 16 The absence of any provision, express or implied, in E.O. 90, repealing those quasi-judicial powers inherited by the HSRC from the National Housing Authority, furthermore militates against petitioners' position on the question. Going to petitioners' contention that the decision of the OAALA should have been rendered by the Board of Commissioners sitting en banc, we find ample authority both in the statutes and in jurisprudence-justifying the Board's act of dividing itself into divisions of three. Under Section 5 of E.O. 648 which defines the powers and duties of the Commission, the Board is specifically mandated to "(a)dopt rules of procedure for the conduct of its business" and perform such functions necessary for the effective accomplishment of (its) above mentioned functions." Since nothing in the provisions of either E.O. 90 or E.O. 648 denies or withholds the power or authority to delegate adjudicatory functions to a division, we cannot see how the Board, for the purpose of effectively carrying out its administrative responsibilities and quasi-judicial powers as a regulatory body should be denied the power, as a matter of practical administrative procedure, to constitute its adjudicatory boards into various divisions. After all, the power conferred upon an administrative agency to issue rules and regulations necessary to carry out its functions

133
has been held "to be an adequate source of authority to delegate a particular function, unless by express provision of the Act or by implication it has been withheld." 17 The practical necessity of establishing a procedure whereby cases are decided by three (3) Commissioners furthermore assumes greater significance when one notes that the HLURB, as constituted, only has four (4) full time commissioners and five (5) part time commissioners to deal with all the functions, administrative, adjudicatory, or otherwise, entrusted to it. 18 As the Office of the President noted in its February 26, 1993 Resolution denying petitioners' Motion for Reconsideration, "it is impossible and very impractical to gather the four (4) full time and five (5) part time commissioners (together) just to decide a case." Considering that its part time commissioners act merely in an ex-officio capacity, requiring a majority of the Board to sit en banc on each and every case brought before it would result in an administrative nightmare. 19

Finally, petitioners' assertion that RA 6552 is inapplicable in the instant case because the said law does not apply to cases of reservation agreements finds no merit in the case at bench in view of Section 24 of P.D. 957 which provides: Sec. 24. Failure to Pay Installments The rights of the buyer in the event of his failure to pay the installments due for reasons other than the failure of the owner or developer to develop the project shall be governed by Republic Act No. 6552.
As the Solicitor General correctly pointed out, RA 6552 makes no distinction between "option" and "sale" 20 which, under P.D. 957 also includes "an exchange or attempt to sell, an option of sale or purchase, a solicitation of a sale or an offer to sell directly." 21 This all-embracing definition virtually includes all transactions concerning land and housing acquisition, including reservation agreements. Since R.A. 6552 mandates cancellation by notarial act among other requirements before any cancellation of a contract may be effected, petitioners' precipitate cancellation of its contract with private respondent without observing the conditions imposed by the said law was invalid and improper.

In fine, the HLURB-OAALA acted within the scope of its authority in ordering petitioners to comply and continue with the sale of the house and lot subject of the contract between the original parties. It cannot be gainsaid that the quasi-judicial functions exercised by the body are necessary incidents to the proper exercise of its powers and functions under E.O. 90 and the laws enacted delineating the scope of authority of its Board of Commissioners. Denying the body those functions so necessary in carrying out its power to regulate housing and land use results in its effective emasculation as an important regulatory body in an area vital to the national economy. The acute housing shortage problem has prompted thousands of middle and lower class buyers of houses and lots and condominium units to enter into all sorts of agreements with private housing developers involving all manner of installment schemes under contracts drawn exclusively by these developers. Many of these virtual contracts of adhesion entrap innocent buyers by requiring cash deposits under reservation agreements which include, sometimes in the fine print, default clauses guaranteeing huge monetary windfalls for the developers in the event that their buyers (oftentimes for the flimsiest of reasons) default by failing to come up with certain requirements. While the Court can take judicial notice of this pernicious practice, it can only hope that future legislation would address the need to protect the innocent middle or lower class home purchaser. In the case of the individual victim, this Court can only go to the extent of awarding such damages as may be proper under the peculiar circumstances of the cases brought before it. WHEREFORE, premises considered, the petition is hereby DISMISSED for lack of merit. Costs against petitioners. SO ORDERED. Cruz, Davide, Jr., Bellosillo and Quiason, JJ., concur.

#Footnotes

1 Rollo, p. 29. 2. Id., Annexes "A," "B" and "C."

134
3 Id., at p. 31, Annex "D". 4 Supra, Note 1. The provision on cancellation in the original agreement between the parties states: "IV. Cancellation A. Failure to remit the full downpayment or to submit the required documents on the date stipulated in items I and II shall result in automatic cancellation without the need for prior notice to the buyer." 5 Id., at p. 33, Annex "E". 6 Id., at p. 27, Annex "A." 7 Id., at p. 26. 8 Id., at p. 36. 9 Police Commission v. Lood, 127 SCRA 757, 761 (1984). 10 Exec. Order No. 648, sec. 8 (1981). 11 Exec. Order No. 90 (1986). 12 181 SCRA 295 (1990). 13 Id., at 291-293 (1990). 14 P.D. 957, sec. 1. 15 C.T. Torres Enterprises, Inc. v. Hibionada, 191 SCRA 268, 272 (1990). While the award for damages is an essentially judicial function normally exercised only by courts of justice, this departure from the usual allocation of governmental powers was justified by expediency or the need of the government to respond swiftly and competently to the pressing problems of the modern world. Id., at 273. This Court traced the source of the Board's competence to award damages in Solid Homes, Inc. v. Payawal, 177 SCRA 72 (1989) thus: (W)e find that this was part of the exclusive power conferred upon at by P.D. No. 1344 to hear and decide claims involving refund and any other claims filed by subdivision lot or condominium unit buyers against the project owners, developers . . ." Id., at 78. 16 Antipolo Realty Corp. v. National Housing Authority, 153 SCRA 399 (1987). 17 Fleming v. Mohawk Wrecking and Lumber Co., 331 U.S. 111-124, cited in American Tobacco Co. v. Director of Patents, 67 SCRA 287, 292 (1975). 18 Rollo, pp. 100-101, Annex "J". 19 Under Section 5(J), Article IV of E.O. 648, Series of 1981 as amended by E.O. 90, Series of 1986, the recent rules of procedure promulgated by the Board in Resolution No. R-538, Series of 1994 enumerate the composition of the HLURB Board of Commissioners as follows: "Sec. 1. Membership

135
"The Board of Commissioners shall be composed of the following: "1. The Chairman, Housing and Urban Development Coordinating Council (HUDCC), as Ex-OfficioChairman; "2. The Four Full-Time Commissioners; "3. The Ex-Officio Commissioners referred to in Executive Order 648, representing . . . : 'a. The Department of Justice 'b. The Department of the National Economic and Development Authority; 'c. The Department of Local Government; and 'd. The Department of Public Works and Highways, (1a)'" (Emphasis supplied). 20 R.A. 6552, sec. 3(b). 21 P.D. 957, sec. 2, provides: "(b) Sale or sell. 'Sale' or 'sell' shall include every disposition, or attempt to dispose for a valuable consideration, of a subdivision lot and other improvements thereon, if any, in a subdivision project or a condominium unit in a condominium project. 'Sale' and 'sell' shall also include a contract of purchase and sale, an exchange or attempt to sell, a solicitation of a sale, or an offer to sell directly or by an agent or by a circular, letter, advertisement or otherwise."

136

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 102782 December 11, 1991 THE SOLICITOR GENERAL, RODOLFO A. MALAPIRA, STEPHEN A. MONSANTO, DAN R. CALDERON, and GRANDY N. TRIESTE, petitioners vs. THE METROPOLITAN MANILA AUTHORITY and the MUNICIPALITY OF MANDALUYONG, respondents.

CRUZ, J.:p
In Metropolitan Traffic Command, West Traffic District vs. Hon. Arsenio M. Gonong, G.R. No. 91023, promulgated on July 13, 1990, 1 the Court held that the confiscation of the license plates of motor vehicles for traffic violations was not among the sanctions that could be imposed by the Metro Manila Commission under PD 1605 and was permitted only under the conditions laid dowm by LOI 43 in the case of stalled vehicles obstructing the public streets. It was there also observed that even the confiscation of driver's licenses for traffic violations was not directly prescribed by the decree nor was it allowed by the decree to be imposed by the Commission. No motion for reconsideration of that decision was submitted. The judgment became final and executory on August 6, 1990, and it was duly entered in the Book of Entries of Judgments on July 13, 1990.

Subsequently, the following developments transpired: In a letter dated October 17, 1990, Rodolfo A. Malapira complained to the Court that when he was stopped for an alleged traffic violation, his driver's license was confiscated by Traffic Enforcer Angel de los Reyes in Quezon City. On December 18,1990, the Caloocan-Manila Drivers and Operators Association sent a letter to the Court asking who should enforce the decision in the above-mentioned case, whether they could seek damages for confiscation of their driver's licenses, and where they should file their complaints. Another letter was received by the Court on February 14, 1991, from Stephen L. Monsanto, complaining against the confiscation of his driver's license by Traffic Enforcer A.D. Martinez for an alleged traffic violation in Mandaluyong. This was followed by a letter-complaint filed on March 7, 1991, from Dan R. Calderon, a lawyer, also for confiscation of his driver's license by Pat. R.J. Tano-an of the Makati Police Force. Still another complaint was received by the Court dated April 29, 1991, this time from Grandy N. Trieste, another lawyer, who also protested the removal of his front license plate by E. Ramos of the Metropolitan Manila Authority-Traffic Operations Center and the confiscation of his driver's license by Pat. A.V. Emmanuel of the Metropolitan Police Command-Western Police District.

137
Required to submit a Comment on the complaint against him, Allan D. Martinez invoked Ordinance No. 7, Series of 1988, of Mandaluyong, authorizing the confiscation of driver's licenses and the removal of license plates of motor vehicles for traffic violations. For his part, A.V. Emmanuel said he confiscated Trieste's driver's license pursuant to a memorandum dated February 27, 1991, from the District Commander of the Western Traffic District of the Philippine National Police, authorizing such sanction under certain conditions. Director General Cesar P. Nazareno of the Philippine National Police assured the Court in his own Comment that his office had never authorized the removal of the license plates of illegally parked vehicles and that he had in fact directed full compliance with the above-mentioned decision in a memorandum, copy of which he attached, entitled Removal of Motor Vehicle License Plates and dated February 28, 1991. Pat. R.J. Tano-an, on the other hand, argued that the Gonong decision prohibited only the removal of license plates and not the confiscation of driver's licenses. On May 24, 1990, the Metropolitan Manila Authority issued Ordinance No. 11, Series of 1991, authorizing itself "to detach the license plate/tow and impound attended/ unattended/ abandoned motor vehicles illegally parked or obstructing the flow of traffic in Metro Manila." On July 2, 1991, the Court issued the following resolution: The attention ofthe Court has been called to the enactment by the Metropolitan Manila Authority of Ordinance No. 11, Series of 1991, providing inter alia that: Section 2. Authority to Detach Plate/Tow and Impound. The Metropolitan Manila Authority, thru the Traffic Operatiom Center, is authorized to detach the license plate/tow and impound attended/unattended/abandoned motor vehicles illegally parked or obstructing the flow of traffic in Metro Manila. The provision appears to be in conflict with the decision of the Court in the case at bar (as reported in 187 SCRA 432), where it was held that the license plates of motor vehicles may not be detached except only under the conditions prescribed in LOI 43. Additionally, the Court has received several complaints against the confiscation by police authorities of driver's licenses for alleged traffic violations, which sanction is, according to the said decision, not among those that may be imposed under PD 1605. To clarify these matters for the proper guidance of law-enforcement officers and motorists, the Court resolved to require the Metropolitan Manila Authority and the Solicitor General to submit, within ten (10) days from notice hereof, separate COMMENTS on such sanctions in light of the said decision. In its Comment, the Metropolitan Manila Authority defended the said ordinance on the ground that it was adopted pursuant to the powers conferred upon it by EO 392. It particularly cited Section 2 thereof vesting in the Council (its governing body) the responsibility among others of: 1. Formulation of policies on the delivery of basic services requiring coordination or consolidation for the Authority; and 2. Promulgation of resolutions and other issuances of metropolitan wide application, approval of a code of basic services requiring coordination, andexercise of its rule-making powers. (Emphasis supplied) The Authority argued that there was no conflict between the decision and the ordinance because the latter was meant to supplement and not supplant the latter. It stressed that the decision itself said that the confiscation of license plates was invalid in the absence of a valid law or ordinance, which was why Ordinance No. 11 was enacted. The Authority also pointed out that the ordinance could not be attacked collaterally but only in a direct action challenging its validity.

138
For his part, the Solicitor General expressed the view that the ordinance was null and void because it represented an invalid exercise of a delegated legislative power. The flaw in the measure was that it violated existing law, specifically PD 1605, which does not permit, and so impliedly prohibits, the removal of license plates and the confiscation of driver's licenses for traffic violations in Metropolitan Manila. He made no mention, however, of the alleged impropriety of examining the said ordinance in the absence of a formal challenge to its validity. On October 24, 1991, the Office of the Solicitor General submitted a motion for the early resolution of the questioned sanctions, to remove once and for all the uncertainty of their vahdity. A similar motion was filed by the Metropolitan Manila Authority, which reiterated its contention that the incidents in question should be dismissed because there was no actual case or controversy before the Court. The Metropolitan Manila Authority is correct in invoking the doctrine that the validity of a law or act can be challenged only in a direct action and not collaterally. That is indeed the settled principle. However, that rule is not inflexible and may be relaxed by the Court under exceptional circumstances, such as those in the present controversy. The Solicitor General notes that the practices complained of have created a great deal of confusion among motorists about the state of the law on the questioned sanctions. More importantly, he maintains that these sanctions are illegal, being violative of law and the Gonong decision, and should therefore be stopped. We also note the disturbing report that one policeman who confiscated a driver's license dismissed the Gonong decision as "wrong" and said the police would not stop their "habit" unless they received orders "from the top." Regrettably, not one of the complainants has filed a formal challenge to the ordinances, including Monsanto and Trieste, who are lawyers and could have been more assertive of their rights. Given these considerations, the Court feels it must address the problem squarely presented to it and decide it as categorically rather than dismiss the complaints on the basis of the technical objection raised and thus, through its inaction, allow them to fester.
The step we now take is not without legal authority or judicial precedent. Unquestionably, the Court has the power to suspend procedural rules in the exercise of its inherent power, as expressly recognized in the Constitution, to promulgate rules concerning "pleading, practice and procedure in all courts." 2 In proper cases, procedural rules may be relaxed or suspended in the interest of substantial justice, which otherwise may be miscarried because of a rigid and formalistic adherence to such rules. The Court has taken this step in a number of such cases, notably Araneta vs. Dinglasan, 3 where Justice Tuason justified the deviation on the ground that "the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure."

We have made similar rulings in other cases, thus: Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment ofjustice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be avoided. (Aznar III vs. Bernad, G.R. No. 81190, May 9, 1988, 161 SCRA 276.) Time and again, this Court has suspended its own rules and excepted a particular case from their operation whenever the higher interests of justice so require. In the instant petition, we forego a lengthy disquisition of the proper procedure that should have been taken by the parties involved and proceed directly to the merits of the case. (Piczon vs. Court of Appeals, 190 SCRA 31). Three of the cases were consolidated for argument and the other two were argued separately on other dates. Inasmuch as all of them present the same fundamental question which, in our view, is decisive, they will be disposed of jointly. For the same reason we will pass up the objection to the personality or sufficiency of interest of the petitioners in case G.R. No. L-3054 and case G.R. No. L-3056 and the question whether prohibition lies in cases G.R. Nos. L-2044 and L2756. No practical benefit can be gained from a discussion of these procedural matters, since the decision in the cases wherein the petitioners'cause of action or the propriety of the procedure followed is not in dispute, will be controlling authority on the others. Above all, the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure. (Avelino vs. Cuenco, G.R. No. L-2821 cited in Araneta vs. Dinglasan, 84 Phil. 368.)

139
Accordingly, the Court will consider the motion to resolve filed by the Solicitor General a petition for prohibition against the enforcement of Ordinance No. 11, Series of 1991, of the Metropohtan Manila Authority, and Ordinance No. 7, Series of 1988, of the Municipality of Mandaluyong. Stephen A. Monsanto, Rodolfo A. Malapira, Dan R. Calderon, and Grandy N. Trieste are considered co-petitioners and the Metropolitan Manila Authority and the Municipality of Mandaluyong are hereby impleaded as respondents. This petition is docketed as G.R. No. 102782. The comments already submitted are duly noted and shall be taken into account by the Court in the resolution of the substantive issues raised. It is stressed that this action is not intended to disparage procedural rules, which the Court has recognized often enough as necessary to the orderly administration of justice. If we are relaxing them in this particular case, it is because of the failure of the proper parties to file the appropriate proceeding against the acts complained of, and the necessity of resolving, in the interest of the public, the important substantive issues raised. Now to the merits.
The Metro Manila Authority sustains Ordinance No. 11, Series of 1991, under the specific authority conferred upon it by EO 392, while Ordinance No. 7, Series of 1988, is justified on the basis of the General Welfare Clause embodied in the Local Government Code. 4 It is not disputed that both measures were enacted to promote the comfort and convenience of the public and to alleviate the worsening traffic problems in Metropolitan Manila due in large part to violations of traffic rules. The Court holds that there is a valid delegation of legislative power to promulgate such measures, it appearing that the requisites of such delegation are present. These requisites are. 1) the completeness of the statute making the delegation; and 2) the presence of a sufficient standard. 5

Under the first requirement, the statute must leave the legislature complete in all its terms and provisions such that all the delegate will have to do when the statute reaches it is to implement it. What only can be delegated is not the discretion to determine what the law shall be but the discretion to determine how the law shall be enforced. This has been done in the case at bar.
As a second requirement, the enforcement may be effected only in accordance with a sufficient standard, the function of which is to map out the boundaries of the delegate's authority and thus "prevent the delegation from running riot." This requirement has also been met. It is settled that the "convenience and welfare" of the public, particularly the motorists and passengers in the case at bar, is an acceptable sufficient standard to delimit the delegate's authority. 6

But the problem before us is not the validity of the delegation of legislative power. The question we must resolve is the validity of the exercise of such delegated power. The measures in question are enactments of local governments acting only as agents of the national legislature. Necessarily, the acts of these agents must reflect and conform to the will of their principal. To test the validity of such acts in the specific case now before us, we apply the particular requisites of a valid ordinance as laid down by the accepted principles governing municipal corporations.
According to Elliot, a municipal ordinance, to be valid: 1) must not contravene the Constitution or any statute; 2) must not be unfair or oppressive; 3) must not be partial or discriminatory; 4) must not prohibit but may regulate trade; 5) must not be unreasonable; and 6) must be general and consistent with public policy. 7

A careful study of the Gonong decision will show that the measures under consideration do not pass the first criterion because they do not conform to existing law. The pertinent law is PD 1605. PD 1605 does not allow either the removal of license plates or the confiscation of driver's licenses for traffic violations committed in Metropolitan Manila. There is nothing in the following provisions of the decree authorizing the Metropolitan Manila Commission (and now the Metropolitan Manila Authority) to impose such sanctions: Section 1. The Metropolitan Manila Commission shall have the power to impose fines and otherwise discipline drivers and operators of motor vehicles for violations of traffic laws, ordinances, rules and regulations in Metropolitan Manila in such amounts and under such penalties as are herein prescribed. For this purpose, the powers of the Land Transportation Commission and the Board of Transportation under existing laws over such violations and punishment thereof are hereby

140
transferred to the Metropolitan Manila Commission. When the proper penalty to be imposed is suspension or revocation of driver's license or certificate of public convenience, the Metropolitan Manila Commission or its representatives shall suspend or revoke such license or certificate. The suspended or revoked driver's license or the report of suspension or revocation of the certificate of public convenience shall be sent to the Land Transportation Commission or the Board of Transportation, as the case may be, for their records update. xxx xxx xxx Section 3.` Violations of traffic laws, ordinances, rules and regulations, committed within a twelve-month period, reckoned from the date of birth of the licensee, shall subject the violator to graduated fines as follows: P10.00 for the first offense, P20.00 for the and offense, P50.00 for the third offense, a one-year suspension of driver's license for the fourth offense, and a revocation of the driver's license for the fifth offense: Provided, That the Metropolitan Manila Commission may impose higher penalties as it may deem proper for violations of its ordinances prohibiting or regulating the use of certain public roads, streets and thoroughfares in Metropolitan Manila. xxx xxx xxx Section 5. In case of traffic violations, the driver's license shall not be confiscated but the erring driver shall be immediately issued a traffic citation ticket prescribed by the Metropolitan Manila Commission which shall state the violation committed, the amount of fine imposed for the violation and an advice that he can make payment to the city or municipal treasurer where the violation was committed or to the Philippine National Bank or Philippine Veterans Bank or their branches within seven days from the date of issuance of the citation ticket. If the offender fails to pay the fine imposed within the period herein prescribed, the Metropolitan Manila Commission or the law-enforcement agency concerned shall endorse the case to the proper fiscal for appropriate proceedings preparatory to the filing of the case with the competent traffic court, city or municipal court. If at the time a driver renews his driver's license and records show that he has an unpaid fine, his driver's license shall not be renewed until he has paid the fine and corresponding surcharges. xxx xxx xxx Section 8. Insofar as the Metropolitan Manila area is concerned, all laws, decrees, orders, ordinances, rules and regulations, or parts thereof inconsistent herewith are hereby repealed or modified accordingly. (Emphasis supplied). In fact, the above provisions prohibit the imposition of such sanctions in Metropolitan Manila. The Commission was allowed to "impose fines and otherwise discipline" traffic violators only "in such amounts and under such penalties as are herein prescribed," that is, by the decree itself. Nowhere is the removal of license plates directly imposed by the decree or at least allowed by it to be imposed by the Commission. Notably, Section 5 thereof expressly provides that "in case of traffic violations, the driver's license shall not be confiscated." These restrictions are applicable to the Metropolitan Manila Authority and all other local political subdivisions comprising Metropolitan Manila, including the Municipality of Mandaluyong.
The requirement that the municipal enactment must not violate existing law explains itself. Local political subdivisions are able to legislate only by virtue of a valid delegation of legislative power from the national legislature (except only that the power to create their own sources of revenue and to levy taxes is conferred by the Constitution itself). 8 They are mere agents vested with what is called the power of subordinate legislation. As delegates of the Congress, the local government unit cannot contravene but must obey at all times the will of their principal. In the case before us, the enactments in question, which are merely local in origin, cannot prevail against the decree, which has the force and effect of a statute.

The self-serving language of Section 2 of the challenged ordinance is worth noting. Curiously, it is the measure itself, which was enacted by the Metropolitan Manila Authority, that authorizes the Metropolitan Manila Authority to impose the questioned sanction.

141
In Villacorta vs, Bemardo, 9 the Court nullified an ordinance enacted by the Municipal Board of Dagupan City for being violative of the Land Registration Act. The decision held in part:

In declaring the said ordinance null and void, the court a quo declared: From the above-recited requirements, there is no showing that would justify the enactment of the questioned ordinance. Section 1 of said ordinance clearly conflicts with Section 44 of Act 496, because the latter law does not require subdivision plans to be submitted to the City Engineer before the same is submitted for approval to and verification by the General Land Registration Office or by the Director of Lands as provided for in Section 58 of said Act. Section 2 of the same ordinance also contravenes the provisions of Section 44 of Act 496, the latter being silent on a service fee of P0.03 per square meter of every lot subject of such subdivision application; Section 3 of the ordinance in question also conflicts with Section 44 of Act 496, because the latter law does not mention of a certification to be made by the City Engineer before the Register of Deeds allows registration of the subdivision plan; and the last section of said ordinance impose a penalty for its violation, which Section 44 of Act 496 does not impose. In other words, Ordinance 22 of the City of Dagupan imposes upon a subdivision owner additional conditions. xxx xxx xxx The Court takes note of the laudable purpose of the ordinance in bringing to a halt the surreptitious registration of lands belonging to the government. But as already intimated above, the powers of the board in enacting such a laudable ordinance cannot be held valid when it shall impede the exercise of rights granted in a general law and/or make a general law subordinated to a local ordinance. We affirm. To sustain the ordinance would be to open the floodgates to other ordinances amending and so violating national laws in the guise of implementing them. Thus, ordinances could be passed imposing additional requirements for the issuance of marriage licenses, to prevent bigamy; the registration of vehicles, to minimize carnapping; the execution of contracts, to forestall fraud; the validation of parts, to deter imposture; the exercise of freedom of speech, to reduce disorder; and so on. The list is endless, but the means, even if the end be valid, would be ultra vires. The measures in question do not merely add to the requirement of PD 1605 but, worse, impose sanctions the decree does not allow and in fact actually prohibits. In so doing, the ordinances disregard and violate and in effect partially repeal the law. We here emphasize the ruling in the Gonong case that PD 1605 applies only to the Metropolitan Manila area. It is an exception to the general authority conferred by R.A. No. 413 on the Commissioner of Land Transportation to punish violations of traffic rules elsewhere in the country with the sanction therein prescribed, including those here questioned. The Court agrees that the challenged ordinances were enacted with the best of motives and shares the concern of the rest of the public for the effective reduction of traffic problems in Metropolitan Manila through the imposition and enforcement of more deterrent penalties upon traffic violators. At the same time, it must also reiterate the public misgivings over the abuses that may attend the enforcement of such sanction in eluding the illicit practices described in detail in the Gonongdecision. At any rate, the fact is that there is no statutory authority for and indeed there is a statutory prohibition against the imposition of such penalties in the Metropolitan Manila area. Hence, regardless of their merits, they cannot be impose by the challenged enactments by virtue only of the delegated legislative powers. It is for Congress to determine, in the exercise of its own discretion, whether or not to impose such sanctions, either directly through a statute or by simply delegating authority to this effect to the local governments in Metropolitan Manila. Without such action, PD 1605 remains effective and continues prohibit the confiscation of license plates of motor vehicles (except under the conditions prescribed in LOI 43) and of driver licenses as well for traffic violations in Metropolitan Manila. WHEREFORE, judgment is hereby rendered:

142
(1) declaring Ordinance No.11, Seriesof l991,of theMetropolitan Manila Authority and Ordinance No. 7, Series of 1988 of the Municipality of Mandaluyong, NULL and VOID; and (2) enjoining all law enforcement authorities in Metropolitan Manila from removing the license plates of motor vehicles (except when authorized under LOI 43) and confiscating driver licenses for traffic violations within the said area. SO ORDERED. Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr. and Romero, JJ., concur. Nocon, J., took no part.

143

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 79622 September 29, 1989 ATTY. ENRIQUETO F. TEJADA, petitioner, vs. HOMESTEAD PROPERTY CORPORATION and TACLIN V. BAEZ, respondents. Renato G. De la Cruz for petitioner. Roberto Rafael V. Lucila for respondents.

GANCAYCO, J.: Presented to us for determination in this case is the issue of the proper forum over an action for the refund of reservation fee for the purchase of real property and damages. The facts are not disputed. Private respondent Taclin V. Baez offered to sell to petitioner Enriqueto F. Tejada a 200 square meter lot owned by respondent corporation. Private respondent suggested that petitioner pay a reservation fee of P 20,000.00, which would form part of the consideration in case they reach a final agreement of sale and which amount was to be returned to the petitioner should the parties fail to reach an agreement. Petitioner paid the reservation fee of P 20,000.00 on March 25, 1986 with the tentative agreement that the said lot would cost P 1,150.00 per square meter, or a total price of P 230,000.00. A 24% downpayment in the amount of P 55,200.00 was to be paid by petitioner. The balance of P 174,800.00 will be payable monthly within 1 or 2 years, depending upon the terms of the agreement. However, when the terms were unilaterally altered by respondent corporation by increasing the proposed amortization payments, petitioner refused to go through with the proposed purchase and he asked the private respondents to return the P20,000.00 reservation payment. Respondents refused to return the amount. On September 26, 1986 petitioner filed a complaint for the collection of a sum of money with damages against respondents with Branch 165 of the Regional Trial Court of Pasig, docketed therein as Civil Case No. 53886. Petitioner

144
alleged that defendants refused to return the P20,000.00 for no justifiable reason despite verbal and written demands. Petitioner further contended that such refusal to refund the amount constitutes malicious and wanton breach of legal duty that makes them liable to pay moral damages.
Respondents filed a motion to dismiss on December 9, 1986 disputing the jurisdiction of the Regional Trial Court and claiming that jurisdiction lies with the Human Settlements Regulatory Commission (HSRC). The trial court denied the motion in its Order dated January 7, 1987. 1 Respondents' motion for reconsideration was denied by the trial court. 2 Not contended therewith, private respondents brought the case to the Court of Appeals on a petition for certiorari claiming that the trial court committed a grave abuse of discretion in denying the motion to dismiss. In a Decision dated August 10, 1987, the appellate court ruled that the jurisdiction over the controverted case is with the Human Settlements Regulatory Commission (HSRC) (now the Housing and Land Use Regulatory Board [HLRB]). 3

Hence, the instant petition wherein petitioner argues that inasmuch as there is no perfected contract of sale between the parties, the claim for recovery of the reservation fee properly falls within the jurisdiction of the regular courts and not that of the HSRC. Section 1 of the Presidential Decree No. 1344 dated April 2, 1978 provides as follows: SECTION 1. In the exercise of its functions to regulate the real estate trade and business and in addition to its powers provided for in Presidential Decree No. 957, the National Housing Authority shall have exclusive jurisdiction to hear and decide cases of the following nature A. Unsound real estate business practices; B. Claims involving refund and any other claims filed by subdivision lot or condominium unit buyers against the project owner, developer, dealer, broker or salesman; and C. Cases involving specific performance of contractual and statutory obligations filed by buyers of subdivision lot or condominium unit against the owner, developer, broker or salesman. (emphasis supplied.) On February 7, 1981, by virtue of Executive Order No. 648, the regulatory functions of the National Housing Authority (NHA) were transferred to the HSRC. Section 8 thereof, among others, provides as follows: SECTION 8. Transfer of Functions.-The regulatory functions of the National Housing Authority pursuant to Presidential Decree Nos. 957, 1216, 1344 and other related laws are hereby transferred to the Commission (Human Settlements Regulatory Commission). x x x. Among these regulatory functions are xxx xxx xxx 11. Hear and decide cases of unsound real estate business practices; claims involving refund filed against project owners, developers, dealers, brokers, or salesmen; and cases of specific performance. Pursuant to Executive Order No. 90 dated December 17, 1986, the functions of the HSRC were transferred to the Housing and Land Use Regulatory Board (HLRB).
There can be no doubt that under Presidential Decree No. 1344, the NHA has exclusive jurisdiction to hear and decide claims involving refund and other claims filed by a subdivision lot or condominium unit buyer against the project owner, etc. There is no such qualification in said provision of law that makes a distinction between a perfected sale and one that has yet to be perfected. The word "buyer" in the law should be understood to be anyone who purchases anything for money. 4Under the circumstances of this case, one who offers to buy is as much a buyer as one who buys by virtue of a perfected contract of sale.

Moreover, upon the promulgation of Executive Order No. 90, if, is therein provided that the HLRB has exclusive jurisdiction over claims involving refund filed against project owners, developers, and dealers, among others. The former provision that the claim be made by a buyer has been eliminated. Thus, any previous doubt as to who may file the claim

145
has been eliminated. Now, any claim for refund whether by a buyer or other in any other capacity is definitely within the exclusive jurisdiction of the HLRB. The Court agrees with the observation of the respondent appellate court that when an administrative agency or body is conferred quasi-judicial functions, all controversies relating to the subject matter pertaining to its specialization are deemed to be included within the jurisdiction of said administrative agency or body. Split jurisdiction is not favored. Since in this case the action for refund of reservation fee arose from a proposed purchase of a subdivision lot obviously the HLRB has exclusive jurisdiction over the case. WHEREFORE, the petition is DISMISSED for lack of merit, without costs. SO ORDERED. Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC

146

G.R. No. 99302 November 27, 1992 GERMAN P. ZAGADA, petitioner, vs. THE CIVIL SERVICE COMMISSION and VEDASTO R. ORETA, respondents.

CAMPOS, JR., J.: This is a petition for certiorari filed pursuant to the provision of Article IX-A, Section 7 of the 1987 Constitution seeking to review and thereafter reverse the Resolution * of the respondent Civil Service Commission (Commission, for brevity) which affirmed, with modification, the Decision ** of the Merit Systems Protection Board and Resolution No. 91-263 dated February 25, 1991 of the respondent Commission which denied the petitioner's motion for reconsideration. The case arose in September, 1984 when a letter-complaint was filed by private respondent Vedasto R. Oreta with the Regional Director, Civil Service Commission, Region V, Legaspi City, against petitioner German P. Zagada (Zagada, for brevity) and Nestor Valdez (Valdez, for brevity) for acts prejudicial to public interest consisting in falsification of entry in the district plantilla of personnel for calendar year 1981. In the "Affidavit" of key witness Cesario Guinoo (Guinoo, for brevity) who was the clerk responsible for the preparation of the plantilla of personnel in the district, it was alleged that he was the one who prepared the plantilla in question. This plantilla, was prepared under the supervision of then Officer-in-Charge Eleanor Osea (Osea, for brevity), and was duly certified correct by her. Before this could be submitted to the Division Office of the then Ministry of Education Culture and Sports, petitioner Zagada took over as the new District Supervisor. While Guinoo was yet in the process of finalizing the draft of the plantilla of personnel for the year 1981, Zagada, together with Valdez, who was then District clerk and Property Custodian for the District, came and asked him (Guinoo) to make adjustments in said plantilla so that Valdez would be listed down as EGT 1 -5, instead of EGT-3. They did this without presenting any proof that said Valdez was qualified for the position of EGT-5.

Valdez admitted that he was not qualified to the position of EGT-5 and that although he appeared to have such position in the plantilla of personnel, he was actually receiving only the salary of his real position, EGT-3, plus a two-step merit increase, the total of which incidentally added up to, and corresponded with, the salary of EGT-5. He expressed no objection to correcting the entry in the plantilla to reflect his correct designation. Zagada, on the other hand, denied any participation in the anomaly, claiming that at the time he assumed the position of District Supervisor, the plantilla in question had already been certified correct and submitted by his predecessor, Osea. He categorically denied having had anything to do with the alleged change in the entry. Zagada was adjudged guilty of misconduct and was made to pay a fine in an amount equivalent to one month and one day of his salary. As for Valdez, the case was considered terminated as of the date of his retirement which intervened during the pendency of the case. Upon elevation to the Merit Systems Protection Board, this decision was affirmed but the Board imposed upon him the "penalty of six (6) months fine without pay". The Commission, in its Resolution No. 90-1070, made the following findings:
Undoubtedly, Zagada committed acts of misconduct in requesting for the inclusion of Valdez in the list of teachers who are EGT5 knowing fully well that at that time, Valdez did not meet the requirements for classification to EGT-5. He even assured the submission of the requirements for classification. By this conduct, he has set a bad example which is truly demoralizing to others. Zagada's attitude and character should not be tolerated much less encouraged. 2

and modified the Board's decision thus:

147
WHEREFORE, foregoing premises considered, the Commission resolved to find German Zagada guilty of grave misconduct and imposes upon him a penalty of one (1) year suspension without pay. 3

Hence this petition. The petitioner makes the following Assignment of Errors: I THE RESPONDENT CIVIL SERVICE COMMISSION GRAVELY ERRED IN FINDING THAT THE PETITIONER IS GUILTY OF GRAVE MISCONDUCT. II THE RESPONDENT CIVIL SERVICE COMMISSION GRAVELY ERRED IN GIVING CREDENCE TO THE TESTIMONY OF CESARIO GUINOO, THE WITNESS FOR THE COMPLAINT, HOWEVER, EVEN IF IT DID NOT SO ERR, THE TESTIMONY OF THE SAID CESARIO GUINOO SHOULD HAVE EXONERATED THE PETITIONER. III THE RESPONDENT CIVIL SERVICE COMMISSION ERRED IN IMPUTING TO THE PETITIONER THE SUPERIMPOSITION OR INSERTION IN THE DISTRICT PLANTILLA AND, ON THE BASIS THEREOF, IN FINDING HIM GUILTY OF GRAVE MISCONDUCT. IV THE RESPONDENT CIVIL SERVICE COMMISSION ERRED IN IMPOSING A PENALTY MUCH TOO HARSH AND IMPROPER UPON THE PETITIONER. We find the petition meritorious.
At the outset, it was mentioned that the instant petition was brought to his Court pursuant to Article IX-A, Section 7 of the 1987 Constitution, and this is in the nature of a petition for certiorari under Rule 65 of the Rules of Court. 4 Under Rule 65 of the Rules of Court, the writ of certiorari is available where any tribunal, board or officer exercising judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law. A person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings, as the law requires, of such tribunal, board or officer. 5 In certiorari proceedings under Rule 65 of the Rules of Court, questions of fact are not generally permitted, the inquiry being limited essentially to whether or not the respondent tribunal had acted without or in excess of its jurisdiction or with grave abuse of discretion. 6 However, in order for this Court to sustain the findings of an administrative body exercising quasi-judicial functions, such body must abide by the elementary rules of due process. 7

When there is denial of due process, there is grave abuse of discretion and the writ of certiorari is in order.
In the landmark case of Ang Tibay, et al. vs. Court of Industrial Relations, et al., 8 this Court has laid down the seven Cardinal rights which constitute the administrative due process, the fourth of which reads:

(4) Not only must there be some evidence to support a finding or conclusion . . ., but the evidence must be "substantial." . . . "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." . . . 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

148
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. . . . But this assurance of desirable flexibility in administrative procedure does not go so far as to justify orders without a basis in evidence having rational probative force. ... We find a mere affidavit of the clerk in charge of the preparation of the plantilla of personnel for calendar year 1981 insufficient to constitute substantial evidence to sustain the finding of grave misconduct. We arrived at this conclusion after pondering upon the following: 1. The affidavit of Guinoo which was the sole basis of the respondent Commission in its ruling that the petitioner committed grave misconduct, is self-serving. Guinoo, the clerk, admitted responsibility for altering the plantilla by inserting the name of Valdez with the corresponding item of EGT-5. Should he not point to someone else as the culprit, the fault would necessarily fall heavily on him.
2. The plantilla in question had allegedly been signed and certified as correct by Osea, the Officer-in-Charge as of the time the said plantilla was prepared, and the same submitted to the Division Officer prior to the assumption of office of the petitioner. 9 With the presumption of regularity in the performance of official duties, We believe that Osea affixed her signature certifying as to its correctness with the knowledge that she was signing the final and official form for submission to the Division Officer. If We would further presume that the clerk, Guinoo, was regular in the performance of his duties, under no circumstances will he allow any changes thereon after it had been certified correct. It is hard to believe his allegation that he altered it upon a simple request and assurance from the petitioner.

3. It is surprising why the complainant and the affiant had not presented the very plantilla in question as evidence. Had there really been an alteration, it would have been so easy to determine this therefrom. 4. It appears that the petitioner's participation in the execution and preparation of the plantilla in question is not reflected thereon. Guinoo alleged that the plantilla was certified by Osea, as Officer-in-Charge, and not by the petitioner. Had there really been the alleged falsification or alteration, the most logical procedure would be for Guinoo to have insisted that it be counter-signed by the present District Supervisor, who is the petitioner herein. We have the impression that the petitioner's signature or initials never appeared in said document. Thus, We have no basis for the falsification. The respondent Commission erred in finding the petitioner guilty of grave misconduct on the basis of the evidence presented, the same not being substantial evidence. This constitutes a denial of administrative due process, amounting to grave abuse of discretion. WHEREFORE, premises considered, the petition is hereby GRANTED. The petitioner is exonerated of the charges against him and the assailed Resolutions of the respondent Commission are annulled and set aside. No costs. SO ORDERED. Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, and Melo JJ., concur.