Dir. of Prisons vs. Ang Chiong Kho

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SUPREMECOURTREPORTSANNOTATEDVOLUME033
494
SUPREME COURT REPORTS ANNOTATED

Director of Prisons vs. Ang Cho Kio
No. L30001. June 23, 1970.

THE DIRECTOR OF PRISONS and THE EXECUTIVE
SECRETARY, petitioners, vs. ANG CHO Kio @ ANG
MING HUY and THE COURT OF APPEALS, respondents.
Courts Recommendatory powers to the President Recom
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VOL. 33, JUNE 23, 1970
495
mendatory powers of courts under Section 5 of the Revised Penal

Code do not include matters purely political in nature. The
recommendatory powers of the courts in this jurisdiction are
limited to those expressly provided in the law and such law is the
provision of Section 5 of the Revised Penal Code. Said provision
does not empower the court to suggest to the President or to
express an opinion that would reflect on the wisdom or propriety
of the action of the Chief Executive on matters purely political in
nature. It would be to violate the principle of separation of powers
for the judiciary to interfere or attempt to influence the exercise
by the Chief Executive of the political powers of his office.
Same Same Same Deportation of aliens is political question.
The matter of whether an alien who violated the laws in this
country may remain or be deported is a political question that
should be left entirely to the Chief Executive to decide. For the
court to suggest to the Chief Executive to modify his decision to
recommit an undesirable alien to prison by allowing him to leave
the country instead is indeed to interfere with the functions of the
Chief Executive.
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Civil actions Judgments Opinions of judges should be

relevant to the question presented for decision.While judges
should be left free to express even their private opinions in
judicial decisions, the better practice should be that the decision
of a court should contain only opinion that is relevant to the
question that is before the court for decision. After all, courts are
not concerned with the wisdom or morality of laws, but only in the
interpretation and application of the law. Judges should refrain
from expressing irrelevant opinions in their decisions which may
only reflect unfavorably upon their competence and the propriety
of their judicial actuations.
Fernando, J., concurring:

Constitutional law Separation of powers Judiciary should
not play role of adviser to President.It is not for any occupant of
any court to play the role of adviser to the Executive. I would on
my part view it further as an unwarranted assumption by the
judiciary of a role which under the Constitution is denied it The
basic premise, of course, is the decisive weight to be accorded the
fundamental postulate of separation of powers.
Same Same Same Effect on respectability of courts. For
the court to assume the alien role of a presidential adviser, is to
lay open the courts to the charge of presumptuousness. It is
infinitely worse if the advice thus gratuitously offered is ignored
or disregarded. The loss of judicial prestige may be incalculable.
Thereafter, there may be less than full respect or court decisions.
It would impair the conf idence in its ability ty to live up to its
trust not only on the part of immediate parties to the litigation
but of the general public as well.
496
496

Makalintal, J., dissenting:

Civil actions Judgments Opinions not prejudicial in nature
and not part of the judgment of court should be allowed. A
recommendation made by the court in its decision to the Chief
Executive which is admittedly not a part of the judgment of the
court, not within the issue presented for its resolution, and one
that is nonprejudicial in nature, should not be deleted from the
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judgment. What is involved is, to me, no more than a question of

taste, or punctilious observance of certain proprieties concerning
which wellmeaning men may honestly differ.
APPEAL by certiorari from a decision of the Court of

Appeals.
The facts are stated in the opinion of the Court.
Solicitor General Felix V. Makasiar and Solicitor
Bernardo P. Pardo for petitioners,
Norberto J. Quisumbing for respondents.
ZALDIVAR, J.:
An appeal by certiorari, by the Solicitor General in behalf
of the Director of Prisons and the Appeals in CAG.R. No.
39018R of said Court, entitled "Ang Cho Kio (Ang Ming
Huy) PetitionerAppellee versus The Director of Prisons
1
and the Executive Secretary, RespondentsAppellees." In
his petition the Solicitor General prays this Court "to
render judgment ordering the striking out from said
decision of the portions recommending to the Executive
Secretary 'to allow the (petitioner) (respondent Ang Cho
Kio @ Ang Ming Huy) to leave this country in the first
available transportation abroad' but otherwise affirming
the dismissal of the petition for habeas corpus. with costs in
all instances against respondent Ang Cho Kio @ Ang Ming
Huy."
The pertinent facts for the purposes of this decision, as
shown in the record, are as follows:
_______________
1
Decision of a Special Division of five Justices of the Court of Appeals
Villamor, Pres. J., Rodriguez and Caizares, JJ. concurring Nolasco and
Mojica, JJ. concurring and dissenting.
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VOL. 33, JUNE 23, 1970
497
Respondent Ang Cho Kio @ Ang Ming Huy had been

charged, tried and convicted of various offenses committed
in the Philippines and was sentenced to suffer penalties, to
wit: a total of fortyfive (45) years, ten (10) months and
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twenty one (21) days of imprisonment, P6,000 indemnity,

and P5,000 moral2 damages, plus life imprisonment and
P6,000 indemnity. After serving six and onehalf (61./2)
years of his sentence said respondent was granted
conditional pardon on July 4, 1959 by the President of the
Philippines. The conditional pardon partly reads as follows:
"By virtue of the authority conferred upon me by the Constitution,
and upon the recommendation of the Board of Pardons and
Parole, the unexecuted portions of the prison terms of prisoner
ANG CHO KIO @ KIWA @ PHILIPP ANG @ ANG TIU CHIO @
KE WA @ LUCIO LEE @ GO ONG @ MR. ANG @ GO ANG @ MR.
ONG is hereby remitted on condition that he will voluntarily leave
the Philippines upon his release and never to return to this
country. Should the abovenamed prisoner refuse to accept said
condition, he shall continue serving his sentence and upon the
expiration thereof, he shall be deported from the Philippines for
being an undesirable alien."
Ang Cho Kio duly accepted the conditions of his pardon and
actually left the' Philippines for Taipeh, Nationalist China,
on July 28, 1959.
In the evening of June 26, 1966 Ang Cho Kio arrived at
the Manila International Airport on a Philippine Air Lines
plane from Taipeh, travelling under the name "Ang Ming
Huy." He held a roundtrip ticket from Taipeh to Honolulu,
to San Francisco, to Los Angeles, to Chicago, to
Washington D.C. to New York, to Vancouver, to Tokyo, to
Seoul, to Osaka, to Taipeh to Bangkok, to Saigon, to
Hongkong and back to Taipeh, He was booked on
Philippine Air Lines earliest connecting flight to Honolulu
on June 29, 1966 at 6:30 p.m., or with a stopover of about
_______________
2
He had been prosecuted for murder, frustrated murder, frustrated
homicide, grave coercion with murder, illegal possession of explosives and

ammunitions, grave coercion and illegal possession of firearm. (Brief,
Solicitor General in the Court of Appeals, pp. 1 and 10). (page 22 of the
rollo)
498
498

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72 hours in Manila. He surrendered his passport to the

immigration authorities at the Manila International
Airport, and was issued a note that his departure was
scheduled for June 29, 1966 at 6:30 p.m. He left his luggage
at the airport and was issued claim tags. He registered for
a threeday stay at the El Presidente Hotel at Paraaque.
Rizal. He contacted his two friends in Manila, Lim Pin and
Go Bon Kim. These two friends invited him to stay longer
in the Philippines. On June 28, 1966 he and his two friends
went to the Bureau of Immigration, where his friend Lim
Pin signed a letter addressed to the Commissioner of
Immigration requesting for a fourteenday extension of
stay in the Philippines for him. Ang Cho Kio was identified
by inspector Mariano Cristi of the Immigration Bureau as
the Ang Cho Kio who was deported to Taipeh on July 18,
1959. His identity having been established, Ang Cho Kio
was arrested, and the immigration authorities conducted
an investigation regarding his presence in the Philippines.
The immigration authorities did not allow him to proceed
with his trip to Honolulu. On July 5, 1966 the Executive
Secretary, by authority of the President, ordered him
recommitted to prison to serve the unexpired portion of the
sentence that were imposed on him, for having violated the
condition of his pardon, The supplemental order of
recommitment reads as follows:
"TO THE DIRECTOR OF PRISONS
MUNTINLUPA, RIZAL
"WHEREAS, ANG CHO KIO @ KIWA & PHILIPP ANG @
ANG TIU CHIO @ KI WA @ LUCIO DEE @ GO ONG @ MR. ANG
@ GO ANG @ MR, ONG was granted conditional pardon by the
President of the Philippines on July 4, 1959, upon the condition
that he will voluntarily leave the Philippines upon his release and
never to return to this country and
"WHEREAS, said ANG CHO KIO has violated the condition of
his pardon in that on June 26, 1966, he returned to this country
from Taipei and gained entry under an assumed
_______________
3
Appellant's Brief in the Court of Appeals, pp. 34 (page 21 of the rollo).
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499

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name, ANG MING HUY, failed to leave on the first available

connecting: flight to Honolulu, his alleged destination instead
requested a fourteenday extension of his 72hour transient stop
over and had in December 1965 applied for a temporary visitor's
visa to Manila also under his assumed name, ANG MING HUY
"NOW, THEREFORE, by virtue of the authority conferred
upon the President of the Philippines by Section 64 (i) of the
Revised Administrative Code, you are hereby ordered to recommit
to prison said ANG CHO KIO @ KIWA @ PHILIPP ANG @ ANG
TIU CHIO @ KI WA @ LUCIO DEE @ GO ONG @ MR. ANG @
GO ANG @ MR. ONG @ ANG MING HUY to serve the unexpired
portion of the sentences for which he was originally committed to
prison, and upon expiration thereof, to deliver said person to the
custody of the Commissioner of Immigration for immediate
deportation for being an undesirable alien.
"Manila, July 5, 1966.
By Authority of the President:
(Sgd.) RAFAEL M. SALAS
Executive Secretary
RS/ara"
Ang Cho Kio filed with the Executive Secretary a motion,

dated August 29, 1966, for the reconsideration of the
supplemental order of recommitment. The Executive
Secretary failed to act on the motion for reconsideration,
and so on October 5, 1966 Ang Cho Kio filed a petition for a
writ of habeas corpus with the Court of First Instance of
Rizal (Pasay Branch), making as respondents in said
petition the Director of Prisons and the Executive
secretary. Under date of October 10, 1966, the officerin
charge of the Bureau of Prisons filed his return, Under date
of October 17, 1966, the Solicitor General filed a return for
the Director of Prisons and the Executive Secretary.
After due hearing the Court of First Instance of Rizal, on
January 31, 1967, rendered a decision dismissing the
petition for habeas corpus. The Court of First Instance of
Rizal held that Ang Cho Kio @ Ang Ming Huy was validly
recommitted to prison by the President of the Philippines
in the exercise of his prerogatives pursuant to the
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provisions of Section 64(i) of the Revised Administrative

Code.
Ang Cho Kio appealed to the Court of Appeals from the
decision of the Court of First Instance of Rizal. In the
decision of a special division of five justices, with three
justices concurring, and two justices concurring and
dissenting, the Court of Appeals rendered a decision which
in effect affirmed the decision of the Court of First Instance
of Rizal dismissing Ang Cho Kio's petition for habeas
corpus.
We read the following in the majority opinion:
"It having been settled that Section 64(i) of the Revised
Administrative Code is still in force, and that the respondent
Executive Secretary, in the name and by authority of the
President, exercised the power of recommitment herein under the
provisions of said Code, and not under Art. 159 of the Revised
Penal Code, it becomes apparent that any discussion regarding
failure to file the corresponding indictment and the presence or
absence of criminal intent, will be offtangent On the contrary, the
issue, in this connection, is whether the courts of justice may
interfere in the exercise by the President, thru his Executive
Secretary, of his administrative power of recommitment, Again, it
is settled jurisprudence that the Chief Executive may determine,
alone and by himself, whether the condition attached to a pardon
given by him has been violated and in the exercise of this
prerogative, the courts may not interfere, however erroneous the
findings may be (Espuelas v. The Provincial Warden, supra
Tesoro v. Director of Prisons, 68 Phil. 154),"
The aforequoted portion of the majority opinion affirms the

reasons of the Court of First Instance of Rizal in dismissing
the petition for habeas corpus. However, the majority
opinion contains the recommendation that Ang Cho Kio
". ..be sent out at once from this country and that he be allowed to
leave Muntinlupa Prisons under guard only when he has been
booked for outward flight at the Manila International Airport so
as to avoid the possibility of any further violation of his
conditional pardon. At any rate it would be to the best interest of
the security and peace of this country to have the petitioner
expatriated from the Philippines, Instead of being recommitted
for a long duration of time to prison
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501
VOL. 33, JUNE 23, 1970
501
where his presence may constitute a constant menace to our

country's welfare and bring about some sinister influence among
the people with whom he will associate or come in contact."
Then the dispositive portion of the majority opinion reads

as follows:
"FOR ALL OF THE FOREGOING REASONS, the petition herein
filed is hereby dismissed, with costs against the petitioner, and
with a reiteration of the recommendation to allow the petitioner
to leave this country in the first available transportation abroad
made in the course of this decision. Let a copy of this decision be
furnished the Executive Secretary."
The concurring: and dissenting opinion of the two justices

opens with the following statement:
"We concur with the majority opinion insofar as the dismissal of
the petition for writ of habeas corpus of petitionerappellant Ang
Cho Kio is concerned, for such dismissal, in effect, is equivalent to
an affirmance of the appealed decision. However, we beg to
dissent from that portion of the majority opinion recommending
that said petitionerappellant be allowed to leave this country by
the first available transportation."
In due time the Solicitor General filed. with the Court of

Appeals a motion for reconsideration, praying for the
deletion from the majority opinion of the recommendation
to allow Ang Cho Kio to leave the country on the first
available transportation abroad. The Court of Appeals, by a
vote of three to two in the special division which decided
the case, denied the motion. Hence this appeal by certiorari
by the Solicitor General to this Court.
It is now contended by the Solicitor General that the
majority of the special division of five justices of the Court
of Appeals erred in making a recommendation to allow
respondent Ang Cho Kio to have this country on the first
available transportation abroad. The Solicitor General
maintains that the recommendation is not a part of the
decision binding upon the parties, and is uncalled for that
it gives the decision a political complexion, because courts
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are not empowered to make such a recommendation, nor is

it inherent or incidental in the exercise of judicial powers
that there is no law which gives the court
502
502

the authority to recommend to the President the voluntary

departure of an undesirable alien who is lawfully
committed to jail that the deportation of aliens sentenced
by the courts for violation of the laws of the land, and even
the act of merely allowing such convicted aliens to
voluntarily leave the country, is an act of state exercised
solely in the discretion of the Chief Executive. It is urged
by the Solicitor General that the act of sending an
undesirable alien out of the country is political in
character, and the courts should not interfere with, nor
attempt to influence, the political acts of the Chief
Executive.
In a motion dated April 7, 1969, Ang Cho Kio manifested
that he waived his right4 to file an answer to any brief filed
by the Solicitor General.
We agree with the Solicitor General. The case before the
Court of Appeals was for habeas corpus. The only question
to be resolved by the Court of Appeals was whether, or not,
the Court of First Instance of Rizal, had rightly dismissed
the petition of Ang Cho Kio for habeas cor pus. The Court of
Appeals was not called upon to review any sentence
imposed upon Ang Cho Kio. The sentence against him had
long become final, and, in fact, he has served part of the
sentence when he was extended pardon on July 4, 1959,
upon the condition that he should leave the country, never
to return. The opinion of the three justices of the special
division of the Court of Appeals, to which the two other
justices have concurred, found that the recommitment to
prison of Ang Cho Kio was done in the exercise by the
President of the Philippines of his power pursuant to the
provision of Section 64 (i) of the Revised Administrative
Code, and the courts should not interfere with the exercise
of that power. The majority opinion should have been
limited to the affirmance of the decision of the lower court,
and no more.
The recommendatory power of the courts in this
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jurisdiction are limited to those expressly provided in the

_______________
4
Page 57 of the rollo.

503
VOL. 33, JUNE 23, 1970
503
lawand such law is the provision of Section 5 of the

Revised Penal Code, as follows:
"Whenever a court has knowledge of any act which it may deem
proper to repress and which is not punishable by law, it shall
render the proper decision, and shall report to the Chief
Executive, through the Department of Justice, the reasons which
induce the court to believe that said act should be made the
subject of penal legislation.
"In the same way the court shall submit to the Chief Executive,
through the Department of Justice such statement as may be
deemed proper, without suspending the execution of the sentence,
when a strict enforcement of the provisions of this Code would
result in the imposition of a clearly excessive penalty, taking into
consideration the degree of malice and the injury caused by the
offense."
Certainly, the recommendation in the majority opinion of

the special division of the Court of Appeals, now in
question, is not authorized under the aforequoted provision
of Article 5 of the Revised Penal Code. The Court of
Appeals was not called upon to review any sentence that
was imposed on Ang Cho Kio. It was simply called upon to
determine whether Ang Cho Kio was illegally confined, or
not, in the insular penitentiary under the Director of
Prisons. We do not consider it proper that the majority of
the justices in the special division make a recommendation
that would suggest a modification or a correction of the act
of the Chief Executive, after the same justices have said in
their opinion "that the Chief Executive may determine,
alone and by himself, whether the condition attached to a
pardon given by him had been violated and in the exercise
of this prerogative, the courts may not interf ere, however
erroneous the f indings may be." When the Chief Executive,
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exercising his powers pursuant to Section 64 (4) of the

Revised Administrative Code, ordered Ang Cho Kio
recommitted to prison, it is assumed that the Chief
Executive had decided that Ang Cho Kio should be dealt
with that way under the circumtances, For the court to
suggest to the Chief Executive to modify his decision 'to
recommit Ang Cho Kio to prison by allowing him to leave
the country instead is indeed to interfere with the functions
of the Chief Executive. It
504
504

would be, as urged by the Solicitor General, an interference

on, or an attempt to influence, the exercise by the Chief
Executive of the political powers of his office. The matter of
whether an alien who violated the laws in this country may
remain or be deported is a political question that should be
left entirely to the Chief Executive to decide. Under the
principle of separation of powers, it is not within the
province of the judiciary to express an opinion, or express a
suggestion, that would reflect on the wisdom or propriety of
the action of the Chief Executive on matters purely
political in nature.
It may be said that the recommendation embodied in the
majority opinion of the special division of the Court of
Appeals simply represents the private opinion of the three
justices, and judges should be left free to express even their
private opinions in judicial decisions. We believe, however,
that the better practice should be that the decision of a
court should contain only opinion that is relevant to the
question that is before the court for deci sion. After all,
courts are not concerned with the wisdom or morality of
laws, but only in the interpretation and application of the
law. We believe that judges should refrain from expressing
irrelevant opinions in their decisions which may only
reflect unfavorably upon their competence and the
propriety of their judicial actuations.
However, of the ten members of the Court, as presently'
constituted, only five are of the opinion that the
recommendation embodied in the decision of the majority of
the special division of the Court of Appeals, now
in
5
question, should be deleted from the decision. Two
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6
members of the Court are of a different opinion, and three

others did not take part in the decision because of their
official actuations relative to the case
of respondent Ang
7
Cho Kio before it reached this Court. There is, there
_______________
5
Chief Justice Concepcion and Justices Reyes, Dizon, Zaldivar and
Fernando.
6
7
Justices Makalintal and Castro.

Justice Teehankee, as Secretary of Justice, recommended to the
President the recommitment to prison of Ang Cho Kio

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505
fore, one vote less than the majority of the Court that is
necessary to grant the certiorari prayed for.
WHEREFORE, the petition for writ of certiorari is
denied, and the decision of the special division of the Court
of Appeals stands. No costs.
Concepcion, C.J., Reyes, J.B.L. and Dizon, JJ.,
concur.
Fernando, J., concurs fully and in addition submits
a brief concurring opinion.
Makalintal and Castro, JJ., concur and dissent in a
separate opinion.
Teehankee, Barredo and Villamor, JJ., did not take
part.
Petition denied.
FERNANDO, ., concurring:
The opinion of the Court penned by Justice Zaldivar, both
thorough and meticulous, is, to my mind, equally
noteworthy for expressing: with clarity and precision the
governing principle that should govern the discharge of
judicial functions. It has my full concurrence therefore. I
would like, however, to add a few words to the subject in
view of the significance attached to a matter so
fundamental In character.
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The basic premise, of course, is the decisive weight to be

accorded the fundamental postulate of separation of
powers. While the failure of the majority opinion of the
respondent Court of Appeals to yield full obeisance to its
implications insofar as the executive is concerned is
brought to light in the opinion of Justice Zaldivar, I would
on my part view it further as an unwarranted assumption
_______________
Justice Barredo, as Solicitor General, appeared for the Executive
Secretary and the Director of Prisons in the Court of Appeals and Justice
Villamor was one of the three justices that rendered the majority opinion
of the special division of the Court of Appeals.
506
506

by the judiciary of a role which under the Constitution is

denied it. To be more precise, it is not for any occupant of
any court to play the role of adviser to the Executive.
I entertain serious fears that if the rule were otherwise
not only would there be an infringement of the separation
of powers concept but the delicate and grave duty of the
courts to assure compliance with constitutional mandates
and maintain its supremacy as called for by the rule of law
would be gravely endangered, Such a point of view I once
had occasion to manifest in a concurring opinion. Thus:
"For to go back to the concept of the rule of law, in the same
way that the legislative and the executive branches are
required to act strictly within the bounds of their
competence, the judiciary, including this Court, is likewise
restricted to its proper domain. The fact that on questions
of law it has the final say makes it all the more imperative
that in passing upon the question of whether or not it is
called upon to act, it takes the utmost care that in assuring
compliance with constitutional limitations, it does not,
at
1
the same time, ignore the limits of its own authority."
What was said by Justice Malcolm, speaking
for this
2
Court in a 1932 opinion, comes to mind. Time has not
Impaired its validity it has but served to confirm it. Thus:
"The Supreme Court of the Philippine Islands represents
one of the three divisions of power in our government. It is
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judicial power and judicial power only which is exercised by

the Supreme Court. Just as the Supreme Court, as the
guardian of constitutional rights, should not sanction
usurpations by any other department of the government, so
should it as strictly confine its own sphere of influence to
the powers expressly or by implication conferred on it by
the Organic Act. The Su
_______________
1
Arula v. Espino, L28949, June 23, 1969, 28 SCRA 540, 575.
Manila Electric Co. v. Pasay Transportation Co., 57 Phil. 600, (1932).

507
VOL. 33, JUNE 23, 1970
507
preme Court and its members should not and cannot be

required to exercise any power or to perform any trust or to
assume any duty not pertaining to3 or connected with the
administering of judicial functions."
In support of the above view, Justice Malcolm made
reference to the last opinion of Chief Justice Taney of the
United States Supreme Court. This is the excerpt referred
to: "lts jurisdiction and powers and duties being def ined in
the organic law of the government, and being all strictly
judicial, Congress cannot require or authorize the court to
exercise any other jurisdiction or power, or perform any
other duty. * * * And while it executes firmly all the
judicial powers entrusted to it, the court will carefully
abstain from exercising any power that is not strictly
judicial in its character, and4 which is not clearly confided to
it by the Constitution, * * *"
There is likewise the epochal opinion of Justice Cardozo,
5
as Chief Judge of the New York Court of Appeals, when
that Court nullified a section of a New York statute that
would vest in a justice of Its Supreme Court the power to
investigate at the instance of its governor. His opinion
explained why: "He is made the delegate of the Governor in
aid of an executive act, the removal of a public officer. * * *
At the word of command he is to give over the work of
judging, and set himself to other work, the work of probing
and advising. His findings when made will have none of the
authority of a judgment. To borrow Bacon's phrase, they
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will not 'give the rule or sentence/ They will not be

preliminary or ancillary to any rule or sentence to be
pronounced by the judiciary in any of its branches. They
will be mere advice to the Governor, who may adopt them,
or modify them, or reject them altogether. From the
beginnings of our history, the principle has been enforced
that there is no inherent
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3
Ibid, p. 605.
Ibid, p. 606 citing Gordon v. United States, 2 Wall. 561 (1864).
In re Richardson, 160 NE 655 (1928),

508
508

power in Executive or Legislature to charge the judiciary

with administrative functions except when reasonably
incidental to the fulfillment of judicial duties. * * * The
exigencies of government have made it necessary to relax a
merely doctrinaire adherence to a principle so flexible and
practical, so largely a matter of sensible approximation, as
that of the separation of powers. Elasticity has not meant
that what is of the essence of the judicial function may be
destroyed by turning the power to decide into a pallid
opportunity to consult and recommend * * *."
Such a principle in American6 law, Justice Cardozo could
trace back to Hayburn's Case, a 1792 decision, He made
mention of another authoritative precedent, this too coming
from the pen of Chief
Justice Taney in 1851, in United
7
States v. Ferreira. A provision of the Treaty of 1819 by
virtue of which Florida was ceded by Spain to the United
States was to the effect that it was incumbent on the latter
to satisfy claims for injury by Spaniards whether in the
armed forces or civilians due to the operations of the
American army in Florida. In 1823 Congress passed an act
to carry into execution this article of the Treaty. It was
therein authorized for the judges of the superior courts
established at St. Augustine and Pensacola, Florida,
respectively, to receive and adjust all claims arising within
their respective jurisdictions, agreeably to the above article
of the Treaty. Decisions favorable to claimants were to be
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reported by such judges to the Secretary of the Treasury,

"who, on being satisfied that the same is just and equitable,
within the provisions of the Treaty, shall pay the amount
thereof to the person or persons in whose favor the said is
adjudged."
According to Chief Justice Taney: "lt is too evident for
_______________
6
2 Dall. 409.
13 How. 40. Cf. Gordon v. United States, 117 US 697 (1865) Matter of
Sanborn, 148 US 222 (1893) Interstate Commerce Commission v.

Brimson, 154 US 447 (1894) Muskrat v. United States, 219 US 346
(1911) Tutun v. United States, 270 US 738 (1926) Liberty Warehouse Co.
v. Grannis, 273 US 70 (1927).
509
VOL. 33, JUNE 23, 1970
509
argument on the subject that such a tribunal is not a

judicial one, and that the Act of Congress did not intend to
make it one. The authority conferred on the respective
judges was nothing more than that of a commissioner to
adjust certain claims against the United States and the
office of judges, and their respective jurisdiction, are
referred to in the law, merely as a designation of the
persons to whom the authority is confided, and the
territorial limits to which it extends. The decision is not the
judgment of a court of justice. It is the award of a
commissioner. The Act of 1834 calls it an award, And an
appeal to this court from such a decision, by such an
authority from the judgment of a court of record, would be
an anomaly in the history of jurisprudence."
Nor was this the first time in the New York bench that
Justice Cardozo,
speaking for the Court, made such a
8
pronouncement. In holding not legally allowable the
reference to the New York Court of Appeals by the
Industrial Commission of New York, the question of
whether or not it was authorized to require payment into
the state fund of certain unpaid death benefits, the
distinguished jurist declared: "In that situation our duty is
not doubtful. The function of the courts is to determine
controversies between litigants. * * * They do not give
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advisory opinions. The giving of such opinions is not the

exercise of the judicial function. * * * It is true that in
England the custom of the Constitution makes the judges
of the high court the assistants of the Lords, and requires
them, upon the demand of the Lords, to give 'consultative'
opinions. But that custom is a survival of the days when
the judges were members of the great council of the realm.
In the United States no such duty attaches to the judicial
office in the absence of express provision of the
Constitution."
There could be no disputing the accuracy of the
observation made by Justice Cardozo in the Richardson
opinion as to the fatal infirmity that would infect the role of
a
_______________
8
In re Workmen's Compensation Fund, 119 NE 1027 (1918).

510
510

judge as a counselor of the Executive in these words:

"Centuries .of common law tradition warn us with echoing
impressiveness that this is not a judge's work." In that
sense we are as one with the commonlaw although we
cannot trace it that far back, Failure to adhere to it gives
rise to a grave concern.
Moreover, I would assume that those of us entrusted
with judicial responsibility could not be unaware that we
may be laying ourselves open to the charge of
presumptuousness, Considering that the exercise of judicial
authority does not embrace the alien role of a presidential
adviser, an indictment of officiousness may be hard to
repel. It is indefinitely worse if the advice thus gratuitously
offered is ignored or disregarded. The loss of judicial
prestige may be incalculable. Thereafter, there may be less
than full respect for court decisions, It would impair the
confidence in its ability to live up to its trust not only on
the part of immediate parties to the litigation but of the
general public as well. Even if the teaching of decided cases
both here and in the Philippines is not as clear therefore,
there should be, to say the least, the utmost reluctance on
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the part of any court to arrogate for itself such a

prerogative, the exercise of which is fraught with
possibilities of such undesirable character.
When it is borne in mind that no undue attention need
be paid to such advice, which may prove to be ineffectual,
even futile, with consequences farfromflattering to the
judiciary, the language of the then Professor Frankfurter
used with reference to advisory opinions, although set in a
different context, 9would not be inappropriate. They are
"ghosts that slay." There is no place for them in the law,
not if respect be paid to a coordinate branch, the Executive,
and if, to my mind a more important consideration, there
be no deviation from what thus far has rightly been
conceived to be the fitting and proper role of the judiciary.
_______________
9
A Note or Advisory Opinions 37 Hary Law Review 1002, 1008 (1924).

511
VOL. 33, JUNE 26, 1970
511
MAKALINTAL, /.: disserting:

I dissent from the opinion of my brethren insofar as it
orders the deletion of the recommendation of three of the
five Justices who constituted the special division of the
Court of Appeals which decided this case that the
petitioner Ang Cho Kio be allowed "to leave this country by
the first available transportation." This recommendation is
admittedly not a part of the judgment of the said Court it
was not within the issue presented for its resolution and
the fact that it was made at all is a nonprejudicial matter
which does not rise to the category of reversible error. I
would not begrudge the three Justices who made it the
liberty to do so, nor consider their act as an undue trespass
upon presidential prerogative. What is involved is, to me,
no more than a question of taste, or punctilious observance
of certain proprieties concerning which wellmeaning men
may honestly differ and I am not prepared to say that
there has been such a blatant disregard of either as to call
for the interposition of this Court's power of review merely
for the purpose of ordering the deletion of the matter
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objected to.
ANNOTATION
SEPARATION OF POWERS
(The Judiciary as Adviser to the Executive)
The ruling in Director of Prisons and Executive Secretary
vs. Ang Cho Kio and Court of Appeals, L30001 June 23,
1970 reiterates the principle that Court should abstain
from exercising any power that is not strictly judicial in
character and which is not clearly confided to it by the
Constitution.
Nature of the Judicial Power
The judicial power is not defined in the Constitution.
Section 1, Article VIII of the Constitution provides: "The
512
512

Director of Prisons vs: Ang Cho Kio
judicial power shall be vested in one Supreme Court and in

such inferior courts as may be established by law." Judicial
power is the power to adjudicate, that is, the power to hear,
consider and determine rights of parties and render a
judgment or some sort of a lawfully enforceable decision
thereon (People ex, rel. Riordan vs. Hersey, 69 Colo. 492, 14
A.L.R. 631, 196 Pac. Rep. 180 Black, Constitutional Law,
2d. ed., p. 82).
The essence of judicial power is the possession of power
and authority to adjudicate upon the rights and obligations
of the parties who are before the court or tribunal (Ruperto
vs. Torres, G.R. L8785, (Feb. 25, 1957). Judicial power is
meant the power constitutionally put in possession of our
courts and judges to hold and use in hearing and
determining controversies as to law or fact between the
various government agencies and instrumentalities, or
between individual parties. It has been defined as the
"power of a court to decide and pronounce a judgment and
carry it into effect between persons and parties who bring a
case before it for decision. "Muskrat vs. United States, 219
U.S. 346 (1911), Prentice vs. Atlantic Coast Line, 211 U.S.
226 (1908). It is the authority with which judges are
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interested to try Civil and Criminal cases and to decide

them or render judgment in accordance 'with law
(Conchada, vs. Director of Prisons, 31 Phil. 94 [1915]),
Distinguished from other Powers
The legislative or executive branches of government may
not constitutionally assign to the judiciary any duty but
such are properly judicial, and to be performed in a judicial
manner (Mitskrat vs. United States, supra In the Matter of
the Petition for Admission to the Bar of Unsuccessful
Candidates of 1946 to 1950, March 18, 1954).
The power conferred in this Court is exclusively judicial,
and it cannot be required or authorized to exercise any
other. While it executes firmly all the judicial powers
entrusted to it, the court will carefully abstain from
exercising any power that is not strictly judicial in its
513
VOL. 33, JUNE 23, 1970
513
character, and which is not clearly confided to it by the

Constitution (Gordon vs. United States, 117 U.S. 697
[1864]).
Only the executive and possibly 'the legislative
departments of government have the right and power to
declare that the lands so gained by the action of the sea is
not necessary for public utility or for the cause of
establishment of special industries or for coast guard
services (Natividad vs. Director of Lands, 37 O.G. 2905).
See also Monteverde vs. Director of Lands, G.R. L4628,
May 25, (1953).
As an incident only of the adjudication of the rights of
the parties to the controversy, the court may pass upon and
make pronouncement relative to their status. Otherwise
such pronouncement is beyond judicial power (Channie
Tan vs. Republic, G.R. L14159, April 18, 1960). When
political questions arise in the course of the litigation, the
courts will refuse to take jurisdiction of the action
(Mabanag vs. Lopez Vito, 78 Phil. 1) Foster vs. Neilson, 2
Pet. 253 (1829) State of Georgia vs. Stanton, 6 Wall. 50
(1867) Massachusetts vs. Mellon, 262 U.S. 447 (1923).
The legislative and executive branches of government
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are required to act strictly within the bounds of their

competence. The judiciary, including this court, is likewise
restricted to its proper domain. The fact that on question of
law it has the final say makes it all the more inoperative
than in passing upon the question of whether or not it is
called upon to act. It takes the utmost care that in assuring
compliance with constitutional limitations, it does not, at
the same time, Ignore the limits of its own authority (Arula
vs. Espino, G.R. L28949, June 23, 1969, 23 SCRA 540).
Courts are not justified in measuring their opinion with
the opinions of other branches of government upon
questions of wisdom, justice and advisability of an act
Abueva vs. Wood, 45 Phil 612 [1924]).
The judicial power may not be used to determine the vis
514
514

dom or desirability of a legislative act or policy (U.S. vs.

Ten Yu, 24 Phil. 1 [1912]).
Courts may not admit evidence tending to prove the use
of bribery or fraud in securing the passage of a law. A court
is not supposed to act as the guardian of the morals of
legislation (Commissioners of Yancey County vs. Road
Commissioners, 81 S.E. 1001). It is not within the province
of the courts to pass judgment upon the policy of legislative
or executive action (Cabili vs. Francisco, G.R. L4638, May
8, 1951).
Courts may not be Deprived of their Jurisdiction
The law calls for arbitration which represents a method of
the parties own choice. The parties to an arbitration
agreement may not oust the courts of jurisdiction of the
matter submitted to an arbitration. But agreement to
matters in dispute between the parties shall be referred to
arbitrators alone, is contrary to pubic policy and cannot
oust the courts of jurisdiction (Manila Electric Co. vs,
Pasay Transportation, 57 Phil. 600 [1932], citing Wahl and
Wahl vs. Donaldson, 2 Phil. 301 [1903]), Puentebella vs.
Negros Coal Co., 51 Phil. 908 (1924) District of Columbia
vs. Bailey, 171 U.S. 161 (1897).
The grant of power and duty to the Lands Department
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to dispose of public lands does not divest the courts of their

power' to take cognizance of actions by settlers or
applicants against others to protect their possessions
(Pitargue vs. Sorilla, G.R. L4302, Sept. 17, 1952).
The Supreme Court as a court is asked to determine if
the members of the court may be constituted as a board of
arbitrators Which is not a court at all. Just as the Supreme
Court, as the guardian of constitutional rights, should not
sanction usurpations by any other department of the
government, so should it as strictly, confine its own sphere
of influence to the powers expressly or by implication
conferred 011 it by the Organic Act. The Supreme Court
and its members should not and cannot be required to
exercise any power or to perform any trust or to assume
any duty
515
VOL. 33, JUNE 23, 1970
515
not pertaining to or connected with the administration of

judicial functions (Manila Electric Co. vs. Pasay Transp.
Co,. supra.)
The Judiciary as Adviser
Unless the Constitution so provides, it is not within the
lawful power of the other departments of the government
thus to propound questions to the courts and require
answers to them. A statute authorizing either house of the
legislature to do this is unconstitutional, for the reason
that it imposes upon the courts duties which are not
judicial in nature (Black, Constitutional Law, 26th ed., p.
103.)
Strictly speaking, the rendering of advisory opinion is
not a judicial function at all. It is the function of the
attorney general or law officer. Advisory opinion may be
vested in some jurisdictions to the courts if the constitution
does not prohibit it. But the opinion binds no one, not even
the judges, for it is not rendered between the parties. It is
given to the official requesting it and is often rendered
without hearing an argument. In this respect, it differs
from a declaratory judgment (Borchard, Declaratory
Judgments, p. 52).
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A declaratory judgment is statutory remedy whereby a

person interested under a deed, will, contract or other
written instrument, or whose rights are affected by a
statute or ordinance, may bring an action to determine any
question of construction or validity arising under the
instrument or statute and a declaration of the rights and
duties thereunder (Rule 66, Section 1, Revised Rules of
Court).
The issue involved must be ripe for judicial
determination. Before a court can intervene in a petition
for declaratory relief, it must be satisfied that an actual
controversy or the ripening seeds of one exists between the
parties all of whom are sui juris and before the court and
that the declaration sought will be a practical help in
ending the controversy. By ripening seeds "means a state of
516
516

facts indicating threatened litigations in the immediate

future, which seems unavoidable concessing the respective
legal rights of the parties (Tolentino vs. Board of
Accountancy, 90 Phil. 83 16 Am. Jur. 295).
A request by the President of the United States
soliciting the views of members of the Supreme Court as to
whether their advice to the executive would be available in
the solution of some important issues was declined by the
justices on the ground of the principle of separation of
powers (Correspondence and Public Papers of John Jay,
Vol, 3, p. 486 Charles Warren The Supreme Court in the
United States History [1937], p. 108, cited in Rivera, Law of
Public Administration, p. 412).
The Supreme National Judiciary should not be
associated with the Executive in the revisionary power.
The Judges ought never to give their opinion on a law, till
it comes from them (Creation of the Federal Judiciary,
Senate Document No. 91, 75th Congress, cited in Rivera,
op. cit., p, 412).
In pointing to the evils of advisory opinions, Justice
Frankfurter of the U.S. Supreme Court said that it
deprives constitutional interpretation of the judgment of
the legislature upon facts. It renders legislation sterile, and
deprives the legislature of its creative function and wrests
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from the legislature its responsibility to the people for Its

acts transferring it to the courts (Frankfurter, "A Note on
Advisory Opinions/' 37 Harvard Law Rev. 1002)
That neither the legislative nor the executive branches
can constitutionally assign to the judicial branch any
duties but such as are properly judicial, and to be
performed in a judicial manner (Hayburn's Case 2 Dall.
409, 1 L. Ed. 436). See also United States vs. Ferreira, 13
How. 40, 14 L. Ed. 42.
The power conferred on this Court is exclusively judicial
and it cannot be required or authorized to exercise any
other (Chief Justice Taney in Gordon vs. United States, 117
U.S. 697).
517
VOL. 33, JUNE 23, 1970
517
See, however, opinion, contra, favoring judges as advisers

to the Executive in. the revision of laws. It would be useful
to the Judiciary Department by giving it an additional
opportunity of defending itself against legislative
encroachments. lt would be useful to the executive by
inspiring additional confidence and firmness exerting the
revisionary power. It would be useful to the Legislature, by
the valuable assistance it would give in preserving a
consistency, conciseness, perspicuity, and technical
propriety in the laws, qualities peculiarly necessary, and
yet shamefully wanting in our Republican codes. It would
be useful to the community at large, as an additional check
against a pursuit of those unwise and unjust measures,
The aid of the judges will give more wisdom and firmness
to the Executive as they possess a systematic habit and
practice of considering laws in their true principles and in
all their consequences which the Executive cannot be
expected always to possess. (Creation of the Federal
Judiciary, supra)
The Massachussetts Constitution allows 'each branch of
the Legislature, as well as the Governor and Council to
require the opinion of the Justices of the Supreme Judicial
Court upon important questions of law upon solemn
occasions.
The Supreme Court of said State, however, limited the
extent of said authority. Such opinions can be required only
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"upon important questions of law and upon solemn

occasion, the Constitution means some serious and unusual
exigency. It has been held to be such an exigency when the
Governor or either branch of the legislature, with some
action in view, has serious doubts, as to their power and
authority to take such action under the Constitution, or
under existing statutes. The Supreme Court denied the
request f or an opinion upon the meaning of certain words
in a certain statute. (Answers of the Justices, 148 Mass.
623, cited in Rivera, op. cit., p. 416),
Advisory opinions at the request of the Governor or
legislature are also authorized in Colorado, Maine, New
518
518

Hampshire, Rhode Island, Florida, and South Dakota. Such

opinion have been given by courts in some other states, but
are ordinarily declined (Self Insurer's Association vs. State
Industrial Commission, 224 N.Y, 13, 119 N.E. 1027 (1918).
See also Opinion of the Justices, 209 Ala. 593, 96 So. 487
(1923), cited in Dodd, Cases an Constitutional Law, p. 109.
On the subject of advisory opinions, see Ellingwood,
Departmental Cooperation in State Government.
Courts also give advisory opinions in Canada (Attorney
General for Ontario vs. Attorney General for Dominion of
Canada (1912) A.C. 571. The High Court of Australia
declines to give advisory opinion. See In re the Judiciary
Act, 29 C.L.R. 257 (1921).
In the United States vs. Evans, 213 U.S. 297, 29 S. Ct.
507, 53 L. Ed. 803 (1909), the court held that it could not
grant a writ of error to review the judgment of a lower
court in a criminal case where there had been a verdict of
not guilty, and there was no power to set aside the verdict,
the purpose of the review being "to obtain an opinion upon
exceptions taken at the trial that may serve as a rule of
observance in cases that may hereafter arise."
Philippine Supreme Court not empowered to give Advisory
Opinion to the Executive or Congress
During the 1934 constitutional convention, a proposal was
made to give power to the Supreme Court to hand out
advisory opinions, with the purpose that through such
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procedure, the legislature can be apprised beforehand of

the unconstitutionality of .a bill in question or to advise the
President to veto it, if already enacted by Congress. In
disapproving said proposal, it was agreed that the Court
would be converted into a consultative body of the
President or Congress and could be violative of the
separation of powers. It would also diminish the dignity of
the Court. Both the Legislature and the Executive should
work independently of the Judicial Branch and each of
them should be responsible for each own acts. If such power
519
VOL. 33, JUNE 23, 1970
519
is given to the Court, it might occur that in a case in which

the constitutionality of the law is put in issue before it, the
court would be tied by its opinion (V Lawyers Journal 775).
Courts are careful not to declare legislative acts
unconstitutional upon agreed and general statements. It
never was. the thought that, by means of a friendly suit, a
party beaten in the legislature could transfer to the courts
and inquire as to the constitutionality of the legislative act
(Chicago and Grand Trunk Railway Co. vs. Wellman, 143
U.S. 339 [1892]).
A New York Court declared a law invalid which
authorized the justice of the Supreme Court upon direction
of the Governor to hear evidence of charges against an
erring officer for purposes of securing his removal.
Speaking for the U.S. Supreme Court, Justice Cardozo
said: "At the word of command he is to give over the work
of judging, and set himself to other work, the work of
probing and advising. His finding when made will have
none of the authority of a judgment. To borrow Bacon's
phrase, they will not give the rule or sentence. They will
not be preliminary or ancillary to any rule or sentence to be
pronounced by the judiciary in any of its branches. They
will be mere advice to the Governor, who may adopt them
or modify them, or reject them altogether. From the
beginning of our history, the principle has been enforced
that there is no inherent power in Executive or Legislature
to charge the judiciary with administrative functions
except when reasonably incidental to the fulfillment of
judicial duties"' (Connolly vs. Scudder, 247 N.Y. 401, 160
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N.E. 655).
In Bacolod Murcia Planters Association vs, Bacolod
Murcia Milling Co,, L23580, October 31, 1969, 20 SCRA
67, the Philippine Supreme Court ruled that it is not the
court's function to render advisory opinions.
JUDGE JORGE COQUIA.
____________
520
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SUPREME COURT REPORTS ANNOTATED

No. L30001. June 23, 1970.

VOL. 33, JUNE 23, 1970

Director of Prisons vs. Ang Cho Kio

mendatory powers of courts under Section 5 of the Revised Penal

Civil actions Judgments Opinions of judges should be

Fernando, J., concurring:

SUPREME COURT REPORTS ANNOTATED

Makalintal, J., dissenting:

judgment. What is involved is, to me, no more than a question of

APPEAL by certiorari from a decision of the Court of

Decision of a Special Division of five Justices of the Court of Appeals

VOL. 33, JUNE 23, 1970

Director of Prisons vs. Ang Cho Kio

Respondent Ang Cho Kio @ Ang Ming Huy had been

twenty one (21) days of imprisonment, P6,000 indemnity,

He had been prosecuted for murder, frustrated murder, frustrated

homicide, grave coercion with murder, illegal possession of explosives and

SUPREME COURT REPORTS ANNOTATED

72 hours in Manila. He surrendered his passport to the

Appellant's Brief in the Court of Appeals, pp. 34 (page 21 of the rollo).

VOL. 33, JUNE 23, 1970

Director of Prisons vs. Ang Cho Kio

name, ANG MING HUY, failed to leave on the first available

Ang Cho Kio filed with the Executive Secretary a motion,

SUPREME COURT REPORTS ANNOTATED

Director of Prisons vs. Ang Cho Kio

provisions of Section 64(i) of the Revised Administrative

The aforequoted portion of the majority opinion affirms the

VOL. 33, JUNE 23, 1970

Director of Prisons vs. Ang Cho Kio

where his presence may constitute a constant menace to our

Then the dispositive portion of the majority opinion reads

The concurring: and dissenting opinion of the two justices

In due time the Solicitor General filed. with the Court of

are not empowered to make such a recommendation, nor is

SUPREME COURT REPORTS ANNOTATED

the authority to recommend to the President the voluntary

jurisdiction are limited to those expressly provided in the

Page 57 of the rollo.

VOL. 33, JUNE 23, 1970

Director of Prisons vs. Ang Cho Kio

lawand such law is the provision of Section 5 of the

Certainly, the recommendation in the majority opinion of

exercising his powers pursuant to Section 64 (4) of the

SUPREME COURT REPORTS ANNOTATED

would be, as urged by the Solicitor General, an interference

members of the Court are of a different opinion, and three

Chief Justice Concepcion and Justices Reyes, Dizon, Zaldivar and

Justices Makalintal and Castro.

President the recommitment to prison of Ang Cho Kio

VOL. 33, JUNE 23, 1970

Director of Prisons vs. Ang Cho Kio

The basic premise, of course, is the decisive weight to be

SUPREME COURT REPORTS ANNOTATED

by the judiciary of a role which under the Constitution is

judicial power and judicial power only which is exercised by

Arula v. Espino, L28949, June 23, 1969, 28 SCRA 540, 575.

Manila Electric Co. v. Pasay Transportation Co., 57 Phil. 600, (1932).

VOL. 33, JUNE 23, 1970

Director of Prisons vs. Ang Cho Kio

preme Court and its members should not and cannot be

will not 'give the rule or sentence/ They will not be