[G.R. No. 115381. December 23, 1994.

KILUSANG MAYO UNO LABOR CENTER, petitioner, vs. HON.

JESUS B. GARCIA, JR., the LAND TRANSPORTATION
FRANCHISING AND REGULATORY BOARD, and the
PROVINCIAL BUSES OPERATORS ASSOCIATION OF THE
PHILIPPINES, respondents.

DECISION

KAPUNAN, J : p

Public utilities are privately owned and operated businesses whose

service are essential to the general public. They are enterprises which
specially cater to the needs of the public and conduce to their comfort and
convenience. As such, public utility services are impressed with public interest
and concern. The same is true with respect to the business of common carrier
which holds such a peculiar relation to the public interest that there is
superinduced upon it the right of public regulation when private properties are
affected with public interest, hence, they cease to be juris privati only. When,
therefore, one devotes his property to a use in which the public has an
interest, he, in effect grants to the public an interest in that use, and must
submit to the control by the public for the common good, to the extent of the
interest he has thus created. 1
An abdication of the licensing and regulatory government agencies of
their functions as the instant petition seeks to show, is indeed lamentable. Not
only is it an unsound administrative policy but it is inimical to public trust and
public interest as well.
The instant petition for certiorari assails the constitutionality and validity
of certain memoranda, circulars and/or orders of the Department of
Transportation and Communications (DOTC) and the Land Transportation
Franchising and Regulatory Board LTFRB) 2 which, among others, (a)
authorize provincial bus and jeepney operators to increase or decrease the
prescribed transportation fares without application therefor with the LTFRB
and without hearing and approval thereof by said agency in violation of Sec.
16(c) of Commonwealth Act No. 146, as amended, otherwise known as
the Public Service Act, and in derogation of LTFRB's duty to fix and determine
just and reasonable fares by delegating that function to bus operators, and (b)
establish a presumption of public need in favor of applicants for certificates of
public convenience (CPC) and place on the oppositor the burden of proving
that there is no need for the proposed service, in patent violation not only of
Sec. 16(c) of CA 146, as amended, but also of Sec. 20(a) of the same Act
mandating that fares should be "just and reasonable." It is, likewise, violative
of the Rules of Court which places upon each party the burden to prove his
own affirmative allegations. 3 The offending provisions contained in the
questioned issuances pointed out by petitioner, have resulted in the
introduction into our highways and thoroughfares thousands of old and
smoke-belching buses, many of which are right-hand driven, and have
exposed our consumers to the burden of spiraling costs of public
transportation without hearing and due process. cdrep

The following memoranda, circulars and/or orders are sought to be

nullified by the instant petition, viz: (a) DOTC Memorandum Order 90-395,
dated June 26, 1990 relative to the implementation of a fare range scheme for
provincial bus services in the country; (b) DOTC Department Order No. 92-
587, dated March 30, 1992, defining the policy framework on the regulation of
transport services; (c) DOTC Memorandum dated October 8, 1992, laying
down rules and procedures to implement Department Order No. 92-587; (d)
LTFRB Memorandum Circular No. 92-009, providing implementing guidelines
on the DOTC Department Order No. 92-587; and (e) LTFRB Order dated
March 24, 1994 in Case No. 94-3112.
The relevant antecedents are as follows:
On June 26, 1990, then Secretary of DOTC, Oscar M. Orbos, issued
Memorandum Circular No. 90-395 to then LTFRB Chairman, Remedios A.S.
Fernando allowing provincial bus operators to charge passengers rates within
a range of 15% above and 15% below the LTFRB official rate for a period of
one (1) year. The text of the memorandum order reads in full:
One of the policy reforms and measures that is in line with the thrusts
and the priorities set out in the Medium-Term Philippine Development
Plan (MTPDP) 1987 1992) is the liberalization of regulations in the
transport sector. Along this line, the Government intends to move away
gradually from regulatory policies and make progress towards greater
reliance on free market forces.
Based on several surveys and observations, bus companies are already
charging passenger rates above and below the official fare declared by
LTFRB on many provincial routes. It is in this context that some form of
liberalization on public transport fares is to be tested on a pilot basis.
In view thereof, the LTFRB is hereby directed to immediately publicize a
fare range scheme for all provincial bus routes in country (except those
operating within Metro Manila). Transport operators shall be allowed to
charge passengers within a range of fifteen percent (15%) above and
fifteen percent (15%) below the LTFRB official rate for a period of one
year.
 Guidelines and procedures for the said scheme shall be prepared by
LTFRB in coordination with the DOTC Planning Service.
The implementation of the said fare range scheme shall start on 6
August 1990.
For compliance. (Emphasis ours.)
Finding the implementation of the fare range scheme "not legally
feasible," Remedios A.S. Fernando submitted the following memorandum to
Oscar M. Orbos on July 24, 1990, to wit:
With reference to DOTC Memorandum Order No. 90-395 dated
26 June 1990 which the LTFRB received on 19 July 1990, directing the
Board "to immediately publicize a fare range scheme for all provincial
bus routes in the country (except those operating within Metro Manila)"
that will allow operators "to charge passengers within a range of fifteen
percent (15%) above and fifteen percent (15%) below the LTFRB official
rate for a period of one year" the undersigned is respectfully adverting
the Secretary's attention to the following for his consideration:
1. Section 16 (c) of the Public Service Act prescribes the
following for the fixing and determination of rates -- (a) the rates to
be approved should be proposed by public service operators; (b)
there should be a publication and notice to concerned or affected
parties in the territory affected; (c) a public hearing should be held
for the fixing of the rates; hence, implementation of the proposed
fare range scheme on August 6 without complying with the
requirements of the Public Service Act may not be legally
feasible.
2. To allow bus operators in the country to charge fares
fifteen (15%) above the present LTFRB fares in the wake of the
devastation, death and suffering caused by the July 16
earthquake will not be socially warranted and will be politically
unsound; most likely public criticism against the DOTC and the
LTFRB will be triggered by the untimely motu propio
implementation of the proposal by the mere expedient of
publicizing the fare range scheme without calling a public hearing,
which scheme many as early as during the Secretary's
predecessor know through newspaper reports and columnists'
comments to be Asian Development Bank and World Bank
inspired.
3. More than inducing a reduction in bus fares by fifteen
percent (15%) the implementation of the proposal will instead
trigger an upward adjustment in bus fares by fifteen percent
(15%) at a time when hundreds of thousands of people in Central
and Northern Luzon, particularly in Central Pangasinan, La Union,
Baguio City, Nueva Ecija, and the Cagayan Valley are suffering
from the devastation and havoc caused by the recent earthquake.
 4. In lieu of the said proposal, the DOTC with its agencies
involved in public transportation can consider measures and
reforms in the industry that will be socially uplifting, especially for
the people in the areas devastated by the recent earthquake.
In view of the foregoing considerations, the undersigned
respectfully suggests that the implementation of the proposed fare range
scheme this year be further studied and evaluated.
On December 5, 1990, private respondent Provincial Bus Operators
Association of the Philippines, Inc. (PBOAP) filed an application for fare rate
increase. An across-the-board increase of eight and a half centavos (P0.085)
per kilometer for all types of provincial buses with a minimum-maximum fare
range of fifteen (15%) percent over and below the proposed basic per
kilometer fare rate, with the said minimum-maximum fare range applying only
to ordinary, first class and premium class buses and a fifty-centavo (P0.50)
minimum per kilometer fare for aircon buses, was sought.
On December 6, 1990, private respondent PBOAP reduced its applied
proposed fare to an across-the-board increase of six and a half (P0.065)
centavos per kilometer for ordinary buses. The decrease was due to the drop
in the expected price of diesel. llcd

The application was opposed by the Philippine Consumers Foundation,

Inc. and Perla C. Bautista alleging that the proposed rates were exorbitant
and unreasonable and that the application contained no allegation on the rate
of return of the proposed increase in rates.
On December 14, 1990, public respondent LTFRB rendered a decision
granting the fare rate increase in accordance with the following schedule of
fares on a straight computation method, viz:
AUTHORIZED FARES
LUZON
MIN. OF 5 KMS. SUCCEEDING KM.
REGULAR P1.50 P0.37
STUDENT P1.15 P0.28

VISAYAS/MINDANAO
REGULAR P1.60 P0.375
STUDENT P1.20 P0.285
FIRST CLASS (PER KM.)
LUZON P0.385
VISAYAS/MINDANAO P0.395
PREMIERE CLASS (PER KM.)
 LUZON P0.395
VISAYAS/ MINDANAO P0.405
AIRCON (PER KM.) P0.415.4
On March 30, 1992, then Secretary of the Department of
Transportation and Communications Pete Nicomedes Prado
issued Department Order No. 92-587 defining the policy framework on
the regulation of transport services. The full text of the said order is
reproduced below in view of the importance of the provisions contained
therein:

WHEREAS, Executive Order No. 125 as amended, designates

the Department of Transportation and Communications (DOTC) as
the primary policy, planning, regulating and implementing agency
on transportation;
WHEREAS, to achieve the objective of a viable, efficient, and
dependable transportation system, the transportation regulatory
agencies under or attached to the DOTC have to harmonize their
decisions and adopt a common philosophy and direction;
WHEREAS, the government proposes to build on the
successful liberalization measures pursued over the last five years
and bring the transport sector nearer to a balanced longer term
regulatory framework;
NOW, THEREFORE, pursuant to the powers granted by laws
to the DOTC, the following policies and principles in the economic
regulation of land, air, and water transportation services are hereby
adopted:
1. Entry into and exit out of the industry. Following the
Constitutional dictum against monopoly, no franchise holder shall
be permitted to maintain a monopoly on any route. A minimum of
two franchise holders shall be permitted to operate on any route.
The requirements to grant a certificate to operate, or
certificate of public convenience, shall be: proof of Filipino
citizenship, financial capability, public need, and sufficient
insurance cover to protect the riding public.
In determining public need, the presumption of need for a
service shall be deemed in favor of the applicant. The burden of
proving that there is no need for a proposed service shall be with
the oppositor(s).
In the interest of providing efficient public transport services,
the use of the 'prior operator' and the 'priority of filing' rules shall
be discontinued. The route measured capacity test or other similar
tests of demand for vehicle/vessel fleet on any route shall be used
only as a guide in weighing the merits of each franchise application
and not as a limit to the services offered.
Where there are limitations in facilities, such as congested
road space in urban areas, or at airports and ports, the use of
demand management measures in conformity with market
principles may be considered.
The right of an operator to leave the industry is recognized
as a business decision, subject only to the filing of appropriate
notice and following a phase-out period, to inform the public and to
minimize disruption of services.
2. Rate and Fare Setting. Freight rates shall be freed
gradually from government controls. Passenger fares shall also be
deregulated, except for the lowest class of passenger service
(normally third class passenger transport) for which the
government will fix indicative or reference fares. Operators of
particular services may fix their own fares within a range 15%
above and below the indicative or reference rate.
Where there is lack of effective competition for services, or
on specific routes, or for the transport of particular commodities,
maximum mandatory freight rates or passenger fares shall be set
temporarily by the government pending actions to increase the
level of competition.
For unserved or single operator routes, the government shall
contract such services in the most advantageous terms to the
public and the government, following public bids for the services.
The advisability of bidding out the services or using other kinds of
incentives on such routes shall be studied by the government.
3. Special Incentives and Financing for Fleet Acquisition. As
a matter of policy, the government shall not engage in special
financing and incentive programs, including direct subsidies for
fleet acquisition and expansion. Only when the market situation
warrants government intervention shall programs of this type be
considered. Existing programs shall be phased out gradually.
The Land Transportation Franchising and Regulatory Board,
the Civil Aeronautics Board, the Maritime Industry Authority are
hereby directed to submit to the office of the Secretary, within
forty-five (45) days of this Order, the detailed rules and procedures
for the Implementation of the policies herein set forth. In the
formulation of such rules, the concerned agencies shall be guided
by the most recent studies on the subjects, such as the Provincial
Road Passenger Transport Study, the Civil Aviation Master Plan,
the Presidential Task Force on the Inter-island Shipping Industry,
and the Inter-island Liner Shipping Rate Rationalization Study.
For the compliance of all concerned. (Emphasis ours)
 On October 8, 1992, public respondent Secretary of the
Department of Transportation and Communications Jesus B. Garcia, Jr.
issued a memorandum to the Acting Chairman of the LTFRB suggesting
swift action on the adoption of rules and procedures to implement
above-quoted Department Order No. 92-587 that laid down deregulation
and other liberalization policies for the transport sector. Attached to the
said memorandum was a revised draft of the required rules and
procedures covering (i) Entry Into and Exit Out of the Industry and (ii)
Rate and Fare Setting, with comments and suggestions from the World
Bank incorporated therein. Likewise, resplendant from the said
memorandum is the statement of the DOTC Secretary that the adoption
of the rules and procedures is a pre-requisite to the approval of the
Economic Integration Loan from the World Bank. 5
On February 17, 1993, the LTFRB issued Memorandum Circular
No. 92-009 promulgating the guidelines for the implementation of DOTC
Department Order No. 92-587. The Circular provides, among others, the
following challenged portions:
xxx xxx xxx
IV. Policy Guidelines on the Issuance of Certificate of Public
Convenience:
The issuance of a Certificate of Public Convenience is
determined by public need. The presumption of public need for a
service shall be deemed in favor of the applicant, while burden of
proving that there is no need for the proposed service shall be the
oppositor's.
xxx xxx xxx
V. Rate and Fare Setting
The control in pricing shall be liberalized to introduce price
competition complementary with the quality of service, subject to
prior notice and public hearing. Fares shall not be provisionally
authorized without public hearing.
A. On the General Structure of Rates
1. The existing authorized fare range system of plus or
minus 15 per cent for provincial buses and jeepneys shall be
widened to 20% and -25% limit in 1994 with the authorized
fare to be replaced by an indicative or reference rate as the
basis for the expanded fare range.
2. Fare systems for aircon buses are liberalized to
cover first class and premier services.
xxx xxx xxx
(Emphasis ours).
 Sometime in March, 1994, private respondent PBOAP, availing
itself of the deregulation policy of the DOTC allowing provincial bus
operators to collect plus 20% and minus 25% of the prescribed fare
without first having filed a petition for the purpose and without the
benefit of a public hearing, announced a fare increase of twenty (20%)
percent of the existing fares. Said increased fares were to be made
effective on March 16, 1994.
On March 16, 1994, petitioner KMU filed a petition before the
LTFRB opposing the upward adjustment of bus fares.
On March 24, 1994, the LTFRB issued one of the assailed orders
dismissing the petition for lack of merit. The dispositive portion reads:
PREMISES CONSIDERED, this Board after considering the
arguments of the parties, hereby DISMISSES FOR LACK OF MERIT
the petition filed in the above-entitled case. This petition in this
case was resolved with dispatch at the request of petitioner to
enable it to immediately avail of the legal remedies or options it is
entitled under existing laws.
SO ORDERED.6
Hence, the instant petition for certiorari with an urgent prayer for
issuance of a temporary restraining order.
The Court, on June 20, 1994, issued a temporary restraining order
enjoining, prohibiting and preventing respondents from implementing
the bus fare rate increase as well as the questioned orders and
memorandum circulars. This meant that provincial bus fares were rolled
back to the levels duly authorized by the LTFRB prior to March 16, 1994.
A moratorium was likewise enforced on the issuance of franchises for
the operation of buses, jeepneys, and taxicabs.
Petitioner KMU anchors its claim on two (2) grounds. First, the
authority given by respondent LTFRB to provincial bus operators to set
a fare range of plus or minus fifteen (15) percent, later increased to plus
twenty (20%) and minus twenty-five (-25%) percent, over and above the
existing authorized fare without having to file a petition for the purpose,
is unconstitutional, invalid and illegal. Second, the establishment of a
presumption of public need in favor of an applicant for a proposed
transport service without having to prove public necessity, is illegal for
being violative of the Public Service Act and the Rules of Court.
In its Comment, private respondent PBOAP, while not actually
touching upon the issues raised by the petitioner, questions the wisdom
and the manner by which the instant petition was filed. It asserts that the
petitioner has no legal standing to sue or has no real interest in the case
at bench and in obtaining the reliefs prayed for.
 In their Comment filed by the Office of the Solicitor General, public
respondents DOTC Secretary Jesus B. Garcia, Jr. and the LTFRB
asseverate that the petitioner does not have the standing to maintain the
instant suit. They further claim that it is within DOTC and LTFRB's
authority to set a fare range scheme and establish a presumption of
public need in applications for certificates of public convenience.
We find the instant petition impressed with merit.
At the outset, the threshold issue of locus standi must be struck.
Petitioner KMU has the standing to sue.
The requirement of locus standi inheres from the definition of
judicial power. Section 1 of Article VIII of the Constitution provides:

xxx xxx xxx

Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality
of the Government.
In Lamb v. Phipps,7 we ruled that judicial power is the power to
hear and decide causes pending between parties who have the right to
sue in the courts of law and equity. Corollary to this provision is the
principle of locus standi of a party litigant. One who is directly affected
by and whose interest is immediate and substantial in the controversy
has the standing to sue. The rule therefore requires that a party must
show a personal stake in the outcome of the case or an injury to himself
that can be redressed by a favorable decision so as to warrant an
invocation of the court's jurisdiction and to justify the exercise of the
court's remedial powers in his behalf. 8
In the case at bench, petitioner, whose members had suffered and
continue to suffer grave and irreparable injury and damage from the
implementation of the questioned memoranda, circulars and/or orders,
has shown that it has a clear legal right that was violated and continues
to be violated with the enforcement of the challenged memoranda,
circulars and/or orders. KMU members, who avail of the use of buses,
trains and jeepneys everyday, are directly affected by the burdensome
cost of arbitrary increase in passenger fares. They are part of the
millions of commuters who comprise the riding public. Certainly, their
rights must be protected, not neglected nor ignored. cdll
 Assuming arguendo that petitioner is not possessed of the
standing to sue, this court is ready to brush aside this barren procedural
infirmity and recognize the legal standing of the petitioner in view of the
transcendental importance of the issues raised. And this act of liberality
is not without judicial precedent. As early as the Emergency Powers
Cases, this Court had exercised its discretion and waived the
requirement of proper party. In the recent case of Kilosbayan, Inc., et al.
v. Teofisto Guingona, Jr., et al., 9 we ruled in the same lines and
enumerated some of the cases where the same policy was adopted, viz:
. . . A party's standing before this Court is a procedural
technicality which it may, in the exercise of its discretion, set aside
in view of the importance of the issues raised. In the
landmark Emergency Powers Cases, [G.R. No. L-2044 (Araneta v.
Dinglasan); G.R. No. L-2756 (Araneta v. Angeles); G.R. No. L-3054
(Rodriguez v. Tesorero de Filipinas); G.R. No. L-3055 (Guerrero v.
Commissioner of Customs); and G.R. No. L-3056 (Barredo v.
Commission on Elections), 84 Phil. 368 (1949)], this Court brushed
aside this technicality because '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-2621).' Insofar as
taxpayers' suits are concerned, this Court had declared that it 'is
not devoid of discretion as to whether or not it should be
entertained,' (Tan v. Macapagal, 43 SCRA 677, 680 [1972]) or that it
'enjoys an open discretion to entertain the same or not.' [Sanidad v.
COMELEC, 73 SCRA 333 (1976)].
xxx xxx xxx
In line with the liberal policy of this Court on locus standi,
ordinary taxpayers, members of Congress, and even association of
planters, and non-profit civic organizations were allowed to initiate
and prosecute actions before this court to question the
constitutionality or validity of laws, acts, decisions, rulings, or
orders of various government agencies or instrumentalities.
Among such cases were those assailing the constitutionality of
(a) R.A. No. 3836insofar as it allows retirement gratuity and
commutation of vacation and sick leave to Senators and
Representatives and to elective officials of both Houses of
Congress (Philippine Constitution Association, Inc. v. Gimenez, 15
SCRA 479 [1965]); (b) Executive Order No. 284, issued by President
Corazon C. Aquino on 25 July 1987, which allowed members of the
cabinet, their undersecretaries, and assistant secretaries to hold
other government offices or positions (Civil Liberties Union v.
Executive Secretary, 194 SCRA 317 [1991]); (c) the automatic
appropriation for debt service in the General Appropriations Act
(Guingona v. Carague, 196 SCRA 221 [1991]; (d) R.A. No. 7056 on
the holding of desynchronized elections (Osmea v. Commission
on Elections, 199 SCRA 750 [1991]; (e) P.D. No. 1869 (the charter of
the Philippine Amusement and Gaming Corporation) on the ground
that it is contrary to morals, public policy, and order (Basco v.
Philippine Gaming and Amusement Corp., 197 SCRA 52 [1991]);
and (f) R.A. No. 6975, establishing the Philippine National Police.
(Carpio v. Executive Secretary, 206 SCRA 290 [1992]).
Other cases where we have followed a liberal policy
regarding locus standi include those attacking the validity or
legality of (a) an order allowing the importation of rice in the light of
the prohibition imposed by R.A. No. 3452 (Iloilo Palay and Corn
Planters Association, Inc. v. Feliciano, 13 SCRA 377 [1965]; (b) P.D.
Nos. 991 and 1033 insofar as they proposed amendments to the
Constitution and P.D. No. 1031 insofar as it directed the COMELEC
to supervise, control, hold, and conduct the referendum-plebiscite
on 16 October 1976 (Sanidad v. Commission on Elections, supra);
(c) the bidding for the sale of the 3,179 square meters of land at
Roppongi, Minato-ku, Tokyo, Japan (Laurel v. Garcia, 187 SCRA
797 [1990]); (d) the approval without hearing by the Board of
Investments of the amended application of the Bataan
Petrochemical Corporation to transfer the site of its plant from
Bataan to Batangas and the validity of such transfer and the shift of
feedstock from naphtha only to naphtha and/or liquefied petroleum
gas (Garcia v. Board of Investments, 177 SCRA 374 [1989]; Garcia
v. Board of Investments, 191 SCRA 288 [1990]); (e) the decisions,
orders, rulings, and resolutions of the Executive Secretary,
Secretary of Finance, Commissioner of Internal Revenue,
Commissioner of Customs, and the Fiscal Incentives Review Board
exempting the National Power Corporation from indirect tax and
duties (Maceda v. Macaraig, 197 SCRA 771 [1991]); (f) the orders of
the Energy Regulatory Board of 5 and 6 December 1990 on the
ground that the hearings conducted on the second provisional
increase in oil prices did not allow the petitioner substantial cross-
examination; (Maceda v. Energy Regulatory Board, 199 SCRA 454
[1991]); (g) Executive Order No. 478 which levied a special duty of
P0.95 per liter of imported oil products (Garcia v. Executive
Secretary, 211 SCRA 219 [1992]); (h) resolutions of the Commission
on Elections concerning the apportionment, by district, of the
number of elective members of Sanggunians (De Guia vs.
Commission on Elections, 208 SCRA 420 [1992]); and (i)
memorandum orders issued by a Mayor affecting the Chief of
Police of Pasay City (Pasay Law and Conscience Union, Inc. v.
Cuneta, 101 SCRA 662 [1980]).
In the 1975 case of Aquino v. Commission on Elections (62
SCRA 275 [1975]), this Court, despite its unequivocal ruling that the
petitioners therein had no personality to file the petition, resolved
 nevertheless to pass upon the issues raised because of the far-
reaching implications of the petition. We did no less in De Guia v.
COMELEC (Supra) where, although we declared that De Guia 'does
not appear to have locus standi, a standing in law, a personal or
substantial interest,' we brushed aside the procedural infirmity
'considering the importance of the issue involved, concerning as it
does the political exercise of qualified voters affected by the
apportionment, and petitioner alleging abuse of discretion and
violation of the Constitution by respondent.'
Now on the merits of the case.
On the fare range scheme.
Section 16 (c) of the Public Service Act, as amended, reads:
Sec. 16. Proceedings of the Commission, upon notice and
hearing. The Commission shall have power, upon proper notice
and hearing in accordance with the rules and provisions of this Act,
subject to the limitations and exceptions mentioned and saving
provisions to the contrary:
xxx xxx xxx
(c) To fix and determine individual or joint rates, tolls,
charges, classifications, or schedules thereof, as well as
commutation, mileage kilometrage, and other special rates which
shall be imposed, observed, and followed thereafter by any public
service: Provided, That the Commission may, in its discretion,
approve rates proposed by public services provisionally and
without necessity of any hearing; but it shall call a hearing thereon
within thirty days thereafter, upon publication and notice to the
concerns operating in the territory affected: Provided, further, That
in case the public service equipment of an operator is used
principally or secondarily for the promotion of a private business,
the net profits of said private business shall be considered in
relation with the public service of such operator for the purpose of
fixing the rates. (Emphasis ours).
xxx xxx xxx
Under the foregoing provision, the Legislature delegated to the defunct
Public Service Commission the power of fixing the rates of public
services. Respondent LTFRB, the existing regulatory body today, is
likewise vested with the same under Executive Order No. 202 dated June
19, 1987. Section 5 (c) of the said executive order authorizes LTFRB "to
determine, prescribe, approve and periodically review and adjust,
reasonable fares, rates and other related charges, relative to the
operation of public land transportation services provided by motorized
vehicles."
 Such delegation of legislative power to an administrative agency is
permitted in order to adapt to the increasing complexity of modern life.
As subjects for governmental regulation multiply, so does the difficulty
of administering the laws. Hence, specialization even in legislation has
become necessary. Given the task of determining sensitive and delicate
matters as route-fixing and rate-making for the transport sector, the
responsible regulatory body is entrusted with the power of subordinate
legislation. With this authority, an administrative body and in this case,
the LTFRB, may implement broad policies laid down in a statute by
"filling in" the details which the Legislature may neither have time or
competence to provide. However, nowhere under the aforesaid
provisions of law are the regulatory bodies, the PSC and LTFRB alike,
authorized to delegate that power to a common carrier, a transport
operator, or other public service.
In the case at bench, the authority given by the LTFRB to the
provincial bus operators to set a fare range over and above the
authorized existing fare, is illegal and invalid as it is tantamount to an
undue delegation of legislative authority. Potestas delegata non delegari
potest. What has been delegated cannot be delegated. This doctrine is
based on the ethical principle that such as delegated power constitutes
not only a right but a duty to be performed by the delegate through the
instrumentality of his own judgment and not through the intervening
mind of another. 11 The policy of allowing the provincial bus operators to
change and increase their fares at will would result not only to a chaotic
situation but to an anarchic state of affairs. This would leave the riding
public at the mercy of transport operators who may increase fares every
hour, every day, every month or every year, whenever it pleases them or
whenever they deem it "necessary" to do so. In Panay Autobus Co. v.
Philippine Railway Co., 12 where respondent Philippine Railway Co. was
granted by the Public Service Commission the authority to change its
freight rates at will, this Court categorically declared that:
In our opinion, the Public Service Commission was not
authorized by law to delegate to the Philippine Railway Co. the
power of altering its freight rates whenever it should find it
necessary to do so in order to meet the competition of road trucks
and autobuses, or to change its freight rates at will, or to regard its
present rates as maximum rates, and to fix lower rates whenever in
the opinion of the Philippine Railway Co. it would be to its
advantage to do so.
The mere recital of the language of the application of the
Philippine Railway Co. is enough to show that it is untenable. The
 Legislature has delegated to the Public Service Commission the
power of fixing the rates of public services, but it has not
authorized the Public Service Commission to delegate that power
to a common carrier or other public service. The rates of public
services like the Philippine Railway Co. have been approved or
fixed by the Public Service Commission, and any change in such
rates must be authorized or approved by the Public Service
Commission after they have been shown to be just and reasonable.
The public service may, of course, propose new rates, as the
Philippine Railway Co. did in case No. 31827, but it cannot lawfully
make said new rates effective without the approval of the Public
Service Commission, and the Public Service Commission itself
cannot authorize a public service to enforce new rates without the
prior approval of said rates by the commission. The commission
must approve new rates when they are submitted to it, if the
evidence shows them to be just and reasonable, otherwise it must
disapprove them. Clearly, the commission cannot determine in
advance whether or not the new rates of the Philippine Railway Co.
will be just and reasonable, because it does not know what those
rates will be.
In the present case the Philippine Railway Co. in effect asked
for permission to change its freight rates at will. It may change
them every day or every hour, whenever it deems it necessary to do
so in order to meet competition or whenever in its opinion it would
be to its advantage. Such a procedure would create a most
unsatisfactory state of affairs and largely defeat the purposes of
the public service law. 13 (Emphasis ours).
One veritable consequence of the deregulation of transport fares
is a compounded fare. If transport operators will be authorized to
impose and collect an additional amount equivalent to 20% over and
above the authorized fare over a period of time, this will unduly
prejudice a commuter who will be made to pay a fare that has been
computed in a manner similar to those of compounded bank interest
rates.
Picture this situation. On December 14, 1990, the LTFRB
authorized provincial bus operators to collect a thirty-seven (P0.37)
centavo per kilometer fare for ordinary buses. At the same time, they
were allowed to impose and collect a fare range of plus or minus 15%
over the authorized rate. Thus P0.37 centavo per kilometer authorized
fare plus P0.05 centavos (which is 15% of P0.37 centavo) is equivalent to
P0.42 centavos, the allowed rate in 1990. Supposing the LTFRB grants
another five (P0.05) centavo increase per kilometer in 1994, then, the
base or reference for computation would have to be P0.47 centavos
(which is P0.42 + P0.05 centavos). If bus operators will exercise their
authority to impose an additional 20% over and above the authorized
fare, then the fare to be collected shall amount to P0.56 (that is, P0.47
authorized LTFRB rate plus 20% of P0.47 which is P0.29). In effect,
commuters will be continuously subject, not only to a double fare
adjustment but to a compounding fare as well. On their part, transport
operators shall enjoy a bigger chunk of the pie. Aside from fare increase
applied for, they can still collect an additional amount by virtue of the
authorized fare range. Mathematically, the situation translates into the
following:
Year * LTFRB Fare Range Fare to be
authorized collected
rate**
per kilometer
1990 P0.37 15% (P0.05) P0.42
1994 P0.42 + 0.05 = 0.47 20% (P0.09) P0.56
1998 P0.56 + 0.05 = 0.61 20% (P0.12) P0.73
2002 P0.73 + 0.05 = 0.78 20% (P0.16) P0.94
Moreover, rate making or rate fixing is not an easy task. It is a
delicate and sensitive government function that requires dexterity of
judgment and sound discretion with the settled goal of arriving at a just
and reasonable rate acceptable to both the public utility and the public.
Several factors, in fact, have to be taken into consideration before a
balance could be achieved. A rate should not be confiscatory as would
place an operator in a situation where he will continue to operate at a
loss. Hence, the rate should enable public utilities to generate revenues
sufficient to cover operational costs and provide reasonable return on
the investments. On the other hand, a rate which is too high becomes
discriminatory. It is contrary to public interest. A rate, therefore, must be
reasonable and fair and must be affordable to the end user who will
utilize the services.
Given the complexity of the nature of the function of rate-fixing
and its far-reaching effects on millions of commuters, government must
not relinquish this important function in favor of those who would
benefit and profit from the industry. Neither should the requisite notice
and hearing be done away with. The people, represented by reputable
oppositors, deserve to be given full opportunity to be heard in their
opposition to any fare increase.
The present administrative procedure, 14 to our mind, already
mirrors an orderly and satisfactory arrangement for all parties involved.
To do away with such a procedure and allow just one party, an
interested party at that, to determine what the rate should be will
undermine the right of the other parties to due process. The purpose of
a hearing is precisely to determine what a just and reasonable rate is. 15
Discarding such procedural and constitutional right is certainly inimical
to our fundamental law and to public interest.
On the presumption of public need.
A certificate of public convenience (CPC) is an authorization
granted by the LTFRB for the operation of land transportation services
for public use as required by law. Pursuant to Section 16(a) of the Public
Service Act, as amended, the following requirements must be met
before a CPC may be granted, to wit: (i) the applicant must be a citizen
of the Philippines, or a corporation or co-partnership, association or
joint-stock company constituted and organized under the laws of the
Philippines, at least 60 per centum of its stock or paid-up capital must
belong entirely to citizens of the Philippines; (ii) the applicant must be
financially capable of undertaking the proposed service and meeting the
responsibilities incident to its operation; and (iii) the applicant must
prove that the operation of the public service proposed and the
authorization to do business will promote the public interest in a proper
and suitable manner. It is understood that there must be proper notice
and hearing before the PSC can exercise its power to issue a CPC.
While adopting in toto the foregoing requisites for the issuance of
a CPC, LTFRB Memorandum Circular No. 92-009, Part IV, provides for
yet incongruous and contradictory policy guideline on the issuance of a
CPC. The guidelines states:
The issuance of a Certificate of Public Convenience is
determined by public need. The presumption of public need for a
service shall be deemed in favor of the applicant, while the burden
of proving that there is no need for the proposed service shall be
the oppositor's. (Emphasis ours).
The above-quoted provision is entirely incompatible and
inconsistent with Section 16(c)(iii) of the Public Service Act which
requires that before a CPC will be issued, the applicant must prove by
proper notice and hearing that the operation of the public service
proposed will promote public interest in a proper and suitable manner.
On the contrary, the policy guideline states that the presumption of
public need for a public service shall be deemed in favor of the
applicant. In case of conflict between a statute and an administrative
order, the former must prevail.

By its terms, public convenience or necessity generally means

something fitting or suited to the public need. 16 As one of the basic
requirements for the grant of a CPC, public convenience and necessity
exists when the proposed facility or service meets a reasonable want of
the public and supply a need which the existing facilities do not
adequately supply. The existence or non-existence of public
convenience and necessity is therefore a question of fact that must be
established by evidence, real and/or testimonial; empirical data;
statistics and such other means necessary, in a public hearing
conducted for that purpose. The object and purpose of such procedure,
among other things, is to look out for, and protect, the interests of both
the public and the existing transport operators.
Verily, the power of a regulatory body to issue a CPC is founded
on the condition that after full-dress hearing and investigation, it shall
find, as a fact, that the proposed operation is for the convenience of the
public. 17 Basic convenience is the primary consideration for which a
CPC is issued, and that fact alone must be consistently borne in mind.
Also, existing operators is subject routes must be given an opportunity
to offer proof and oppose the application. Therefore, an applicant must,
at all times, be required to prove his capacity and capability to furnish
the service which he has undertaken to render. 18 And all this will be
possible only if a public hearing were conducted for that purpose. LLjur

Otherwise stated, the establishment of public need in favor of an

applicant reverses well-settled and institutionalized judicial, quasi-
judicial and administrative procedures. It allows the party who initiates
the proceedings to prove, by mere application, his affirmative
allegations. Moreover, the offending provisions of the LTFRB
memorandum circular in question would in effect amend the Rules of
Court by adding another disputable presumption in the enumeration of
37 presumptions under Rule 131, Section 5 of the Rules of Court. Such
usurpation of this Court's authority cannot be countenanced as only this
Court is mandated by law to promulgate rules concerning pleading,
practice and procedure. 19
Deregulation, while it may be ideal in certain situations, may not
be ideal at all in our country given the present circumstances. Advocacy
of liberalized franchising and regulatory process is tantamount to an
abdication by the government of its inherent right to exercise police
power, that is, the right of government to regulate public utilities for
protection of the public and the utilities themselves.
While we recognize the authority of the DOTC and the LTFRB to
issue administrative orders to regulate the transport sector, we find that
they committed grave abuse of discretion in issuing DOTC Department
Order No. 92-587 defining the policy framework on the regulation of
transport services and LTFRB Memorandum Circular No. 92-009
promulgating the implementing guidelines on DOTC Department Order
No. 92-587, the said administrative issuances being amendatory and
 violative of the Public Service Act and the Rules of Court. Consequently,
we rule that the twenty (20%) per centum fare increase imposed by
respondent PBOAP on March 16, 1994 without the benefit of a petition
and a public hearing is null and void and of no force and effect. No
grave abuse of discretion however was committed in the issuance of
DOTC Memorandum Order No. 90-395 and DOTC Memorandum dated
October 8, 1992, the same being merely internal communications
between administrative officers.
WHEREFORE, in view of the foregoing, the instant petition is
hereby GRANTED and the challenged administrative issuances and
orders, namely: DOTC Department Order No. 92-587, LTFRB
Memorandum Circular No. 92-009, and the order dated March 24, 1994
issued by respondent LTFRB are hereby DECLARED contrary to law and
invalid insofar as they affect provisions therein (a) delegating to
provincial bus and jeepney operators the authority to increase or
decrease the duly prescribed transportation fares; and (b) creating a
presumption of public need for a service in favor of the applicant for a
certificate of public convenience and placing the burden of proving that
there is no need for the proposed service to the oppositor. LexLib

The Temporary Restraining Order issued on June 20, 1994 is

hereby MADE PERMANENT insofar as it enjoined the bus fare rate
increase granted under the provisions of the aforementioned
administrative circulars, memoranda and/or orders declared invalid.
[G.R. No. 101279. August 6, 1992.]

PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS,

INC. petitioner, vs. HON. RUBEN D. TORRES, as Secretary of
the Department of Labor & Employment, and JOSE N.
SARMIENTO, as Administrator of the PHILIPPINE OVERSEAS
EMPLOYMENT ADMINISTRATION, respondents.

De Guzman, Meneses & Associates for petitioner.

SYLLABUS

1. ADMINISTRATIVE LAW; ADMINISTRATIVE BODIES; VESTURE OF QUASI

LEGISLATIVE AND QUASI JUDICIAL POWERS. The vesture of quasi-
legislative and quasi-judicial powers in administrative bodies is not
unconstitutional, unreasonable and oppressive. It has been necessitated by "the
growing complexity of the modern society" (Solid Homes, Inc. vs. Payawal, 177
SCRA 72, 79). More and more administrative bodies are necessary to help in the
regulation of society's ramified activities. "Specialized in the particular field
assigned to them, they can deal with the problems thereof with more expertise
and dispatch than can be expected from the legislature or the courts of justice."
2. LABOR LAW; OVERSEAS EMPLOYMENT; DOLE AND POEA CIRCULARS;
POWER TO RESTRICT AND REGULATE INVOLVES A GRANT OF POLICE
POWER. It is noteworthy that the assailed circulars do not prohibit the
petitioner from engaging in the recruitment and deployment of Filipino landbased
workers for overseas employment. A careful reading of the challenged
administrative issuances discloses that the same fall within the "administrative
and policing powers expressly or by necessary implication conferred" upon the
respondents (People vs. Maceren, 79 SCRA 450). The power to "restrict and
regulate conferred by Article 36 of the Labor Code involves a grant of police
power (City of Naga vs. Court of Appeals, 24 SCRA 898). To "restrict" means "to
confine, limit or stop" and whereas the power to "regulate" means "the power to
protect, foster, promote, preserve, and control with due regard for the interests,
first and foremost, of the public, then of the utility and of its patrons" (Philippine
Communications Satellite Corporation vs. Alcuaz, 180 SCRA 218).
3. ID.; ID.; ID.; INVALID FOR LACK OF PROPER PUBLICATION AND FILING
IN THE OFFICE OF NATIONAL ADMINISTRATIVE REGISTER.
Nevertheless, the DOLE and POEA circulars are legally invalid, defective and
unenforceable for lack of proper publication and filing in the Office of the National
Administrative Register as required in Article 2 of the Civil Code, Article 5 of the
Labor Code and Sections 3(1) and 4, Chapter 2, Book VII of the Administrative
Code of 1987.

DECISION

GRIO-AQUINO, J : p

This petition for prohibition with temporary restraining order was filed by the
Philippine Association of Service Exporters (PASEI, for short), to prohibit and
enjoin the Secretary of the Department of Labor and Employment (DOLE) and
the Administrator of the Philippine Overseas Employment Administration (or
POEA) from enforcing and implementing DOLE Department Order No. 16, Series
of 1991 and POEA Memorandum Circular Nos. 30 and 37, Series of 1991,
temporarily suspending the recruitment by private employment agencies of
Filipino domestic helpers for Hong Kong and vesting in the DOLE, through the
facilities of the POEA, the task of processing and deploying such workers.
PASEI is the largest national organization of private employment and recruitment
agencies duly licensed and authorized by the POEA, to engage in the business
of obtaining overseas employment for Filipino landbased workers, including
domestic helpers. LLphil

On June 1, 1991, as a result of published stories regarding the abuses suffered

by Filipino housemaids employed in Hong Kong, DOLE Secretary Ruben D.
Torres issuedDepartment Order No. 16, Series of 1991, temporarily suspending
the recruitment by private employment agencies of "Filipino domestic helpers
going to Hong Kong" (p. 30, Rollo). The DOLE itself, through the POEA took over
the business of deploying such Hong Kong-bound workers.
"In view of the need to establish mechanisms that will enhance the
protection for Filipino domestic helpers going to Hong Kong, the
recruitment of the same by private employment agencies is hereby
temporarily suspended effective 1 July 1991. As such, the DOLE through
the facilities of the Philippine Overseas Employment Administration shall
take over the processing and deployment of household workers bound
for Hong Kong, subject to guidelines to be issued for said purpose.
"In support of this policy, all DOLE Regional Directors and the Bureau of
Local Employment's regional offices are likewise directed to coordinate
with the POEA in maintaining a manpower pool of prospective domestic
helpers to Hong Kong on a regional basis.
"For compliance." (Emphasis ours; p. 30, Rollo.)
Pursuant to the above DOLE circular, the POEA issued Memorandum Circular
No. 30, Series of 1991, dated July 10, 1991, providing GUIDELINES on the
Government processing and deployment of Filipino domestic helpers to Hong
Kong and the accreditation of Hong Kong recruitment agencies intending to hire
Filipino domestic helpers.
"Subject: Guidelines on the Temporary Government Processing and
Deployment of Domestic Helpers to Hong Kong.
"Pursuant to Department Order No. 16, series of 1991 and in order to
operationalize the temporary government processing and deployment of
domestic helpers (DHs) to Hong Kong resulting from the temporary
suspension of recruitment by private employment agencies for said skill
and host market, the following guidelines and mechanisms shall govern
the implementation of said policy:
"I. Creation of a Joint POEA-OWWA Household Workers Placement Unit
(HWPU).
"An ad hoc, one stop Household Workers Placement Unit [or HWPU]
under the supervision of the POEA shall take charge of the various
operations involved in the Hong Kong-DH industry segment:
 "The HWPU shall have the following functions in coordination with
appropriate units and other entities concerned:
"1. Negotiations with and Accreditation of Hong Kong Recruitment
Agencies
"2. Manpower Pooling
"3. Worker Training and Briefing
"4. Processing and Deployment
"5. Welfare Programs.
"II. Documentary Requirements and Other Conditions for Accreditation
of Hong Kong Recruitment Agencies or Principals. LexLib
"Recruitment agencies in Hong Kong intending to hire Filipino DHs for
their employers may negotiate with the HWPU in Manila directly or
through the Philippine Labor Attache's Office in Hong Kong.
"xxx xxx xxx
"X. Interim Arrangement
"All contracts stamped in Hong Kong as of June 30 shall continue to be
processed by POEA until 31 July 1991 under the name of the Philippine
agencies concerned. Thereafter, all contracts shall be processed with
the HWPU.
"Recruitment agencies in Hong Kong shall submit to the Philippine
Consulate General in Hong Kong a list of their accepted applicants in
their pool within the last week of July. The last day of acceptance shall
be July 31 which shall then be the basis of HWPU in accepting contracts
for processing. After the exhaustion of their respective pools the only
source of applicants will be the POEA manpower pool.
"For strict compliance of all concerned." (pp. 31-35, Rollo.)
On August 1, 1991, the POEA Administrator also issued Memorandum Circular
No. 37, Series of 1991, on the processing of employment contracts of domestic
workers for Hong Kong.
"TO: All Philippine and Hong Kong Agencies engaged in the recruitment
of Domestic helpers for Hong Kong.
"Further to Memorandum Circular No. 30, series of 1991 pertaining to
the government processing and deployment of domestic helpers (DHs)
to Hong Kong, processing of employment contracts which have been
attested by the Hong Kong Commissioner of Labor up to 30 June 1991
shall be processed by the POEA Employment Contracts Processing
Branch up to 15 August 1991 only.
 "Effective 16 August 1991, all Hong Kong recruitment agent/s hiring DHs
from the Philippines shall recruit under the new scheme which requires
prior accreditation with the POEA.
"Recruitment agencies in Hong Kong may apply for accreditation at the
Office of the Labor Attache, Philippine Consulate General where a
POEA team is posted until 31 August 1991. Thereafter, those who failed
to have themselves accredited in Hong Kong may proceed to the POEA-
OWWA Household Workers Placement Unit in Manila for accreditation
before their recruitment and processing of DHs shall be allowed.
"Recruitment agencies in Hong Kong who have some accepted
applicants in their pool after the cut-off period shall submit this list of
workers upon accreditation. Only those DHs in said list will be allowed
processing outside of the HWPU manpower pool.
"For strict compliance of all concerned." (Emphasis supplied, p. 36,
Rollo.)
On September 2, 1991, the petitioner, PASEI, filed this petition for prohibition to
annul the aforementioned DOLE and POEA circulars and to prohibit their
implementation for the following reasons:
1. that the respondents acted with grave abuse of discretion and/or in
excess of their rule-making authority in issuing said circulars;
2. that the assailed DOLE and POEA circulars are contrary to the
Constitution, are unreasonable, unfair and oppressive; and
3. that the requirements of publication and filing with the Office of the
National Administrative Register were not complied with.
There is no merit in the first and second grounds of the petition.
Article 36 of the Labor Code grants the Labor Secretary the power to restrict and
regulate recruitment and placement activities. LLpr

"Art. 36. Regulatory Power. The Secretary of Labor shall have the
power to restrict and regulate the recruitment and placement activities of
all agencies within the coverage of this title [Regulation of Recruitment
and Placement Activities] and is hereby authorized to issue orders and
promulgate rules and regulations to carry out the objectives and
implement the provisions of this title." (Italics ours.)
On the other hand, the scope of the regulatory authority of the POEA, which was
created by Executive Order No. 797 on May 1, 1982 to take over the functions of
the Overseas Employment Development Board, the National Seamen Board, and
the overseas employment functions of the Bureau of Employment Services, is
broad and far-ranging for:
 1. Among the functions inherited by the POEA from the defunct Bureau
of Employment Services was the power and duty:
"'2. To establish and maintain a registration and/or
licensing system to private sector participation in the recruitment
and placement of workers, locally and overseas, . . . .' (Art. 15,
Labor Code, italics supplied)." (p. 13, Rollo.)
2. It assumed from the defunct Overseas Employment Development
Board the power and duty:
"'3. To recruit and place workers for overseas employment
of Filipino contract workers, on a government to government
arrangement and in such other sectors as policy may dictate . . . .'
(Art. 17, Labor Code.)" (p. 13, Rollo.)
3. From the National Seamen Board, the POEA took over:
"2. To regulate and supervise the activities of agents or
representatives of shipping companies in the hiring of seamen for
overseas employment; and secure the best possible terms of
employment for contract seamen workers and secure compliance
therewith." (Art. 20, Labor Code.)
The vesture of quasi-legislative and quasi-judicial powers in administrative
bodies is not unconstitutional, unreasonable and oppressive. It has been
necessitated by "the growing complexity of the modern society" (Solid Homes,
Inc. vs. Payawal, 177 SCRA 72, 79). More and more administrative bodies are
necessary to help in the regulation of society's ramified activities. "Specialized in
the particular field assigned to them, they can deal with the problems thereof with
more expertise and dispatch than can be expected from the legislature or the
courts of justice" (Ibid.).
It is noteworthy that the assailed circulars do not prohibit the petitioner from
engaging in the recruitment and deployment of Filipino landbased workers for
overseas employment. A careful reading of the challenged administrative
issuances discloses that the same fall within the "administrative and policing
powers expressly or by necessary implication conferred" upon the respondents
(People vs. Maceren, 79 SCRA 450). The power to "restrict and regulate
conferred by Article 36 of the Labor Code involves a grant of police power (City
of Naga vs. Court of Appeals, 24 SCRA 898). To "restrict" means "to confine,
limit or stop" (p. 62, Rollo) and whereas the power to "regulate" means "the
power to protect, foster, promote, preserve, and control with due regard for the
interests, first and foremost, of the public, then of the utility and of its patrons"
(Philippine Communications Satellite Corporation vs. Alcuaz, 180 SCRA 218).
The Solicitor General, in his Comment, aptly observed:
 " . . . Said Administrative Order [i.e., DOLE Administrative Order No. 16]
merely restricted the scope or area of petitioner's business operations by
excluding therefrom recruitment and deployment of domestic helpers for
Hong Kong till after the establishment of the `mechanisms' that will
enhance the protection of Filipino domestic helpers going to Hong Kong.
In fine, other than the recruitment and deployment of Filipino domestic
helpers for Hongkong, petitioner may still deploy other class of Filipino
workers either for Hongkong and other countries and all other classes of
Filipino workers for other countries.Cdpr

"Said administrative issuances, intended to curtail, if not to end, rampant

violations of the rule against excessive collections of placement and
documentation fees, travel fees and other charges committed by private
employment agencies recruiting and deploying domestic helpers to
Hongkong. [They are] reasonable, valid and justified under the general
welfare clause of the Constitution, since the recruitment and deployment
business, as it is conducted today, is affected with public interest.
"xxx xxx xxx
"The alleged takeover [of the business of recruiting and placing Filipino
domestic helpers in Hongkong] is merely a remedial measure, and
expires after its purpose shall have been attained. This is evident from
the tenor of Administrative Order No. 16 that recruitment of Filipino
domestic helpers going to Hongkong by private employment agencies
are hereby 'temporarily suspended effective July 1. 1991.'
"The alleged takeover is limited in scope, being confined to recruitment
of domestic helpers going to Hongkong only.
"xxx xxx xxx
" . . . the justification for the takeover of the processing and deploying of
domestic helpers for Hongkong resulting from the restriction of the scope
of petitioner's business is confined solely to the unscrupulous practice of
private employment agencies victimizing applicants for employment as
domestic helpers for Hongkong and not the whole recruitment business
in the Philippines." (pp. 62-65. Rollo.)
The questioned circulars are therefore a valid exercise of the police power as
delegated to the executive branch of Government.
Nevertheless, they are legally invalid, defective and unenforceable for lack of
proper publication and filing in the Office of the National Administrative Register
as required in Article 2 of the Civil Code, Article 5 of the Labor Code
and Sections 3(1) and 4, Chapter 2, Book VII of the Administrative Code of 1987
which provide:
 "Art. 2. Laws shall take effect after fifteen (15) days following the
completion of their publication in the Official Gazette, unless it is
otherwise provided. . . . ." (Civil Code.)
"Art. 5. Rules and Regulations. The Department of Labor and other
government agencies charged with the administration and enforcement
of this Code or any of its parts shall promulgate the necessary
implementing rules and regulations. Such rules and regulations shall
become effective fifteen (15) days after announcement of their
adoption in newspapers of general circulation." (Emphasis supplied,
Labor Code, as amended.)
Section 3. Filing. (1) Every agency shall file with the University of the
Philippines Law Center, three (3) certified copies of every rule adopted
by it. Rules in force on the date of effectivity of this Code which are not
filed within three (3) months shall not thereafter be the basis of any
sanction against any party or persons." (Underscoring supplied, Chapter
2, Book VII of the Administrative Code of 1987.)
"Section 4. Effectivity. In addition to other rule-making requirements
provided by law not inconsistent with this Book, each rule shall become
effective fifteen (15) days from the date of filing as above provided
unless a different date is fixed by law, or specified in the rule in cases of
imminent danger to public health, safety and welfare, the existence of
which must be expressed in a statement accompanying the rule. The
agency shall take appropriate measures to make emergency rules
known to persons who may be affected by them." (Emphasis supplied,
Chapter 2, Book VII of the Administrative Code of 1987.)
Once more, we advert to our ruling in Taada vs. Tuvera, 146 SCRA 446 that:
" . . . Administrative rules and regulations must also be published if their
purpose is to enforce or implement existing law pursuant also to a valid
delegation," (p. 447.).LLjur

"Interpretative regulations and those merely internal in nature, that is,

regulating only the personnel of the administrative agency and not the
public, need not be published. Neither is publication required of the so-
called letters of instructions issued by administrative superiors
concerning the rules or guidelines to be followed by their subordinates in
the performance of their duties." (p. 448.)
"We agree that publication must be in full or it is no publication at all
since its purpose is to inform the public of the content of the laws." (p.
448.)
For lack of proper publication, the administrative circulars in question may not be
enforced and implemented.
WHEREFORE, the writ of prohibition is GRANTED. The implementation of DOLE
Department Order No. 16, Series of 1991, and POEA Memorandum Circular
Nos. 30 and 37, Series of 1991, by the public respondents is hereby
SUSPENDED pending compliance with the statutory requirements of publication
and filing under the aforementioned laws of the land. cdl

[G.R. No. 127325. March 19, 1997.]

MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and

MARIA ISABEL ONGPIN, petitioners, vs. COMMISSION ON
ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN
PEDROSA, in their capacities as founding members of the
People's Initiative for Reforms, Modernization and Action
(PIRMA), respondents.

SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL

ANG KONSTITUSYON (DIK), MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD INTEGRITY AND NATIONALISM, INC.
(MABINI), INTEGRATED BAR OF THE PHILIPPINES (IBP), and
LABAN NG DEMOKRATIKONG PILIPINO (LABAN), petitioners-
intervenors.

SYLLABUS

1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; COMELEC'S

FAILURE TO ACT ON MOTION TO DISMISS AND ITS INSISTENCE TO HOLD
ON TO THE PETITION RENDERED RIPE AND VIABLE THE PETITION UNDER
SECTION 2 OF RULE 65 OF THE RULES OF COURT. Except for the
petitioners and intervenor Roco, the parties paid no serious attention to the fifth
issue, i.e., whether it is proper for this Court to take cognizance of this special civil
action when there is a pending case before the COMELEC. . . It must be recalled
that intervenor Roco filed with the COMELEC a motion to dismiss the Delfin
Petition on the ground that the COMELEC has no jurisdiction or authority to
entertain the petition. The COMELEC made no ruling thereon evidently because
after having heard the arguments of Delfin and the oppositors at the hearing on 12
December 1996, it required them to submit within five days their memoranda or
oppositions/memoranda. The COMELEC's failure to act on Roco's motion to
dismiss and its insistence to hold onto the petition rendered ripe and viable the
instant petition under Section 2 of Rule 65 of the Rules of Court.
2. ID.; ID.; THE COURT MAY BRUSH ASIDE TECHNICALITIES OF
PROCEDURE IN CASES OF TRANSCENDENTAL IMPORTANCE. The Court
may brush aside technicalities of procedure in cases of transcendental importance.
As we stated in Kilosbayan, Inc. v. Guingona, Jr.: A Party's standing before this
Court is a procedural technicality which it may, in the exercise of its discretion, set
aside in view of the importance of issues raised. In the landmark Emergency
Powers Cases, this Court brushed aside this technicality because 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.
3. CONSTITUTIONAL LAW; 1987 CONSTITUTION; AMENDMENTS OR
REVISIONS; PROVISION ON THE RIGHT OF THE PEOPLE TO DIRECTLY
PROPOSE AMENDMENTS TOTHE CONSTITUTION, NOT SELF-EXECUTORY.
Section 2 of Article XVII of the Constitution is not self-executory. In his book,
Joaquin Bernas, a member of the 1986 Constitutional Commission, stated: Without
implementing legislation Section 2 cannot operate. Thus, although this mode of
amending the Constitution is a mode of amendment which bypasses
congressional action, in the last analysis it still is dependent on congressional
action. Bluntly stated the right of the people to directly propose amendments to the
Constitution through the system of initiative would remain entombed in the cold
niche of the Constitution until Congress provides for its implementation. Stated
otherwise, while the Constitution has recognized or granted that right, the people
cannot exercise it if Congress, for whatever reason, does not provide for its
implementation.
4. ID.; ID.; ID.; R.A. 6735; INTENDED TO COVER INITIATIVE TO PROPOSE
AMENDMENTS TO THE CONSTITUTION. We agree that R.A. No. 6735 was,
as its history reveals, intended to cover initiative to propose amendments to the
Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill
No. 17. The former was prepared by the committee on Suffrage and Electoral
Reforms of Representatives on the basis of two House Bills referred to it, viz., (a)
House Bill No. 497, which dealt with the initiative and referendum mentioned in
Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No. 988,
which dealt with the subject matter of House Bill No. 497, as well as with initiative
and referendum under Section 3 of Article XVII of the Constitution. Senate Bill No.
17 solely, dealt with initiative and referendum concerning ordinances or resolutions
of local government units. The Bicameral Conference Committee consolidated
Senate Bill No. 17 and House Bill No. 21505 into a draft bill, which was
subsequently approved on 8 June 1989 by the Senate and by the House of
Representatives. This approved bill is now R.A. No. 6735.
5. ID.; ID.; ID.; ID.; CONGRESS, INVESTED WITH THE POWER TO PROVIDE
FOR THE RULES IMPLEMENTING THE EXERCISE OF THE RIGHT. There
is, of course, no other better way for Congress to implement the exercise of the
right than through the passage of a statute or legislative act. This is the essence
or rationale of the last minute amendment by the Constitutional Commission to
substitute the last paragraph of Section 2 of Article XVII then reading: "The
Congress shall by law provide for the implementation of the exercise of this right
with the Congress shall provide for the implementation of the exercise of this right."
This substitute amendment was an investiture on Congress of a power to provide
for the rules implementing the exercise of the right. The "rules" means "the details
on how [the right] is to be carried out."
6. ID.; ID.; ID.; ID.; NOT IN FULL COMPLIANCE WITH THE POWER AND DUTY
OF CONGRESS TO PROVIDE FOR THE IMPLEMENTATION OF THE
EXERCISE OF THE RIGHT. First, Contrary to the assertion of public
respondent COMELEC, Section 2 of the Act does not suggest an initiative on
amendments to the Constitution. The inclusion of the word "Constitution" therein
was a delayed afterthought. That word is neither germane nor relevant to said
section, which exclusively relates to initiative and referendum on national laws and
local laws, ordinances, and resolutions. That section is silent as to amendments
on the Constitution. As pointed out earlier, initiative on the Constitution is confined
only to proposals to AMEND. The people are not accorded the power to "directly
propose, enact, approve, or reject, in whole or in part,the Constitution" through the
system of initiative. They can only do so with respect to "laws, ordinances, or
resolutions."' . . . Second. It is true that Section 3 (Definition of Terms) of the Act
defines initiative on amendments to the Constitution and mentions it as one of the
three systems of initiative, and that Section 5 (Requirements) restates the
constitutional requirements as to the percentage of the registered voters who must
submit the proposal. But unlike in the case of the other systems ofinitiative, the Act
does not provide for the contents of a petition for initiative on the Constitution.
Section 5 paragraph (c) requires, among other things, a statement of the proposed
law sought to be enacted, approve or rejected, amended or repealed, as the case
may be. It does not include, as among the contents of the petition, the provisions
of the Constitution sought to be amended, in the case of initiative on the
Constitution. . . . The use of the clause "proposed laws sought to be enacted,
approved or rejected, amended or repealed" only strengthens the conclusion that
Section 2, quoted earlier, excludes initiative on amendments to the
Constitution.Third. While the Act provides subtitles for National Initiative and
Referendum (Subtitle, II) and for Local Initiative and Referendum (Subtitle III), no
subtitle is provided forinitiative on the Constitution. This conspicuous silence as to
the latter simply means that the main thrust of the Act is initiative and referendum
on national and local laws. If Congress intended R.A. No. 6735 to fully provide for
the implementation of the initiative on amendments to the Constitution, it could
have provided for a subtitle therefor, considering that in the order of things, the
primacy of interest, or hierarchy of values, the right of the people to directly propose
amendments to the Constitution is far more important than the initiative on national
and local laws. . . . The foregoing brings us to the conclusion that R.A. No. 6735 is
incomplete, inadequate, or wanting in essential terms and conditions insofar as
initiative on amendments to the Constitution is concerned. Its lacunae on this
substantive matter are fatal and. cannot be cured by "empowering" the COMELEC
"to promulgate such rules and regulations as may be necessary to carry out the
purposes of [the] Act."
7. ID.; ID.; ID.; ID.; SUBTITLING OF THE ACT, NOT ACCURATE. A further
examination of the Act even reveals that the subtitling is not accurate. Provisions
not germane to the subtitle on National Initiative and Referendum are placed
therein, like (1) paragraphs (b) and (c) of Section 9, (2) that portion of Section 1]
(Indirect Initiative) referring to indirect initiative with the legislative bodies of local
governments, and (3) Section 12 on Appeal, since it applies to decisions of the
COMELEC on the findings of sufficiency or insufficiency of the petition
for initiative or referendum, which could be petitions for both national and local
initiative and referendum.
8. ID.; ID.; ID.; ID.; SECTION 18 ON AUTHORITY OF COURTS UNDER
SUBTITLE ON LOCAL INITIATIVE AND REFERENDUM, MISPLACED.
Section 18 on "Authority of Courts" under subtitle III on Local Initiative and
Referendum is misplaced, since the provision therein applies to both national and
local initiative and referendum.
9. ID.; ID.; ID.; ID.; FAILED TO GIVE SPECIAL ATTENTION ON THE SYSTEM
OF INITIATIVE ON AMENDMENTS TO THE CONSTITUTION WHICH IS MORE
IMPORTANT BEING THE PARAMOUNT SYSTEM OF INITIATIVE. While R.A.
No. 6735 exerted utmost diligence and care in providing for the details in the
implementation of initiative and referendum on national and local legislation
thereby giving them special attention, it failed, rather intentionally, to do so on the
system of initiative on amendments to the Constitution. Upon the other hand, as
to initiative on amendments to the Constitution, R.A. No. 6735, in all of its twenty-
three sections, merely (a) mentions the word "Constitution" in Section 2. (b) defines
"initiative on the Constitution" and includes it in the enumeration of the three
systems of initiative in Section 3; (c) speaks of "plebiscite" as the process by which
the proposition, in an initiative on the Constitution may be approved or rejected by
the people., (d) reiterates the constitutional requirements as to the number of
voters who should sign the petition; and (e) provides for the date of effectivity of
the approved proposition. There was, therefore, an obvious downgrading of the
more important or the paramount system of initiative. R.A. No. 6735 thus delivered
a humiliating blow to the system of initiative on amendments to the Constitution by
merely paying it a reluctant lip service.

10. ID.; ID.; ID.; ID.; ARGUMENT THAT INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION IS SUBSUMED UNDER SUBTITLE ON NATIONAL INITIATIVE
AND REFERENDUM, NOT ACCEPTABLE. We cannot accept the argument
that the initiative on amendments to the Constitution is subsumed under the
subtitle on National Initiative and Referendum because it is national in scope. Our
reading of Subtitle II (National Initiative and Referendum) and Subtitle III (Local
Initiative and Referendum) leaves no room for doubt that the classification is not
based on the scope of the initiative involved, but on its nature and character. It is
national initiative," if what is proposed to be adopted or enacted is a national law,
or a law which only Congress can pass. It is "local initiative" if what is proposed to
be adopted or enacted is a law,ordinance, or resolution which only the legislative
bodies of the governments of the autonomous regions, provinces, cities,
municipalities, and barangays can pass. This classification of initiative
into national and local is actually based on Section 3 of the Act.
11. ID.; ID.; ID.; ID.; COMELEC DOES NOT HAVE THE POWER TO VALIDLY
PROMULGATE RULES AND REGULATIONS TO IMPLEMENT THE EXERCISE
OF THE RIGHT OF THE PEOPLE TO DIRECTLY PROPOSE AMENDMENTS
TO THE CONSTITUTION UNDER R.A. 6735. It logically follows that the
COMELEC cannot validly promulgate rules and regulations to implement the
exercise of the right of the people to directly propose amendments to the
Constitution through the system of initiative. It does not have that power under R.A.
No. 6735. Reliance on the COMELEC's power under Section 2(1) of Article IX-C
of the Constitution is misplaced, for the laws and regulations referred to therein are
those promulgated by the COMELEC under (a) Section 3 of Article IX-C of the
Constitution, or (b) a law where subordinate legislation is authorized and which
satisfies the "completeness" and the "sufficient standard" tests.
12. ID.; ID.; ID.; ID.; DELFIN PETITION, DEFECTIVE BECAUSE IT DOES NOT
CONTAIN THE SIGNATURES OF THE REQUIRED NUMBER OF VOTERS.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No.
6735, a petition for initiative on the Constitution must be signed by at least 12% of
the total number of registered voters of which every legislative district is
represented by at least 3% of the registered voters therein. The Delfin Petition
does not contain signatures of the required number of voters. Delfin himself admits
that he has not yet gathered signatures and that the purpose of his petition is
primarily to obtain assistance in his drive to gather signatures. Without the required
signatures, the petition cannot be deemed validly initiated.
13. ID.; ID.; ID.; ID.; DELFIN PETITION, NOTHING MORE THAN A MERE SCRAP
OF PAPER. The COMELEC acquires jurisdiction over a petition for initiative
only after its filing. The petition then is the initiatory pleading. Nothing before its
filing is cognizable by the COMELEC, sitting en banc. . . . Since the Delfin Petition
is not the initiatory petition under R.A. No. 6735 and COMELEC Resolution No.
2300, it cannot be entertained or given cognizance of by the COMELEC. The
respondent Commission must have known that the petition does not fall under any
of the actions or proceedings under the COMELEC Rules of Procedure or under
Resolution No. 2300, for which reason it did not assign to the petition a docket
number. Hence, the said petition was merely entered as UND, meaning,
undocketed. That petition was nothing more than a mere scrap of paper, which
should not have been dignified by the Order of 6 December 1996, the hearing on
12 December 1996, and the order directing Delfin and the oppositors to file their
memoranda or oppositions. In so dignifying it, the COMELEC acted without
jurisdiction or with grave abuse of discretion and merely wasted its time, energy,
and resources.
14. POLITICAL LAW; LEGISLATIVE DEPARTMENT ; DELEGATION OF
POWER; WHAT HAS BEEN DELEGATED CANNOT BE DELEGATED;
EXCEPTIONS THEREOF. The rule is that what has been delegated, cannot be
delegated or as expressed in a Latin maxim: potestas delegata non delegari
potest. The recognized exceptions to the rule are as follows: (1) Delegation of tariff
powers to the President under Section 28(2) of Article VI of the Constitution; (2)
Delegation of emergency powers to the President under Section 23 (2) of Article
VI of the Constitution; (3) Delegation to the people at large; (4) Delegation to local
governments; and (5) Delegation to administrative bodies.
15. ID.; ID.; ID.; REQUISITES FOR VALID DELEGATION; SUFFICIENT
STANDARD; CONSTRUED; R.A. 6735 MISERABLY FAILED TO SATISFY BOTH
REQUIREMENTS. In every case of permissible delegation, there must be a
showing that the delegation itself is valid. It is valid only if the law (a) is complete
in itself, setting forth therein the policy to be executed, carried out, or implemented
by the delegate; and (b) fixes a standard the limits of which are sufficiently
determinate and determinable to which the delegate must conform in the
performance of his functions. A sufficient standard is one which 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. Insofar as initiative to propose amendments to the Constitution is
concerned, R.A. No. 6735 miserably failed to satisfy both requirements in
subordinate legislation. The delegation of the power to the COMELEC is then
invalid.

DECISION

DAVIDE, JR., J : p

The heart of this controversy brought to us by way of a petition for prohibition under
Rule 65 of the Rules of Court is the right of the people to directly propose
amendments to the Constitution through the system of initiative under Section 2 of
Article XVII of the 1987 Constitution. Undoubtedly, this demands special attention,
as this system of initiative was unknown to the people of this country, except
perhaps to a few scholars before the drafting of the 1987 Constitution. The 1986
Constitutional Commission itself, through the original proponent 1 and the main
sponsor 2 of the proposed Article on Amendments or Revision of the Constitution,
characterized this system as "innovative". 3 Indeed it is, for both under the 1935
and 1973 Constitutions, only two methods of proposing amendments to, or revision
of,the Constitution were recognized, viz., (1) by Congress upon a vote of three-
fourths of all its members and (2) by a constitutional convention. 4 For this and the
other reasons hereafter discussed, we resolved to give due course to this petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with
public respondent Commission on Elections (hereafter, COMELEC) a "Petition
to Amendthe Constitution, to Lift Term Limits of Elective Officials, by People's
Initiative" (hereafter, Delfin Petition) 5 wherein Delfin asked the COMELEC for
an order
1. Fixing the time and dates for signature gathering all over the country;
2. Causing the necessary publications of said Order and the attached
"Petition for Initiative on the 1987 Constitution, in newspapers of
general and local circulation;
3. Instructing Municipal Election Registrars in all Regions of the
Philippines, to assist Petitioners and volunteers, in establishing
signing stations at the time and on the dates designated for the
purpose.
Delfin alleged in his petition that he is a founding member of the Movement for
People's Initiative, 6 a group of citizens desirous to avail of the system intended to
institutionalize people power; that he and the members of the Movement and other
volunteers intend to exercise the power to directly propose amendments to the
Constitution granted under Section 2, Article XVII of the Constitution; that the
exercise of that power shall be conducted in proceedings under the control and
supervision of the COMELEC; that, as required in COMELEC Resolution No. 2300,
signature stations shall be established all over the country, with the assistance of
municipal election registrars, who shall verify the signatures affixed by individual
signatories; that before the Movement and other volunteers can gather signatures,
it is necessary that the time and dates to be designated for the purpose be first
fixed in an order to be issued by the COMELEC; and that to adequately inform the
people of the electoral process involved, it is likewise necessary that the said order,
as well as the Petition on which the signatures shall be affixed, be published in
newspapers of general and local circulation, under the control and supervision of
the COMELEC.
 The Delfin Petition further alleged that the provisions sought to be
amended are Sections 4 and 7 of Article VI, 7 Section 4 of Article VII, 8 and
Section 8 of Article X9 of the Constitution. Attached to the petition is a copy of a
"Petition for Initiative on the 1987 Constitution" 10 embodying the proposed
amendments which consist in the deletion from the aforecited sections of the
provisions concerning term limits, and with the following proposition:
DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE
GOVERNMENT OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4 AND 7
OF ARTICLE VI, SECTION 4 OF ARTICLE VII, AND SECTION 8 OF ARTICLE X OF
THE 1987 PHILIPPINE CONSTITUTION?
According to Delfin, the said Petition for Initiative will first be submitted to the
people, and after it is signed by at least twelve per cent of the total number of
registered voters in the country it will be formally filed with the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith given the
number UND 96-037 (INITIATIVE), the COMELEC, through its Chairman,
issued an Order 11 (a) directing Delfin "to cause the publication of the petition,
together with the attached Petition for Initiative on the 1987
Constitution (including the proposal, proposed constitutional amendment, and
the signature form), and the notice of hearing in three (3) daily newspapers of
general circulation at his own expense" not later than 9 December 1996; and
(b) setting the case for hearing on 12 December 1996 at 10:00 a.m.
At the hearing of the Delfin Petition on 12 December 1996, the following
appeared: Delfin and Atty. Pete Q. Quadra; representatives of the People's
Initiative for Reforms, Modernization and Action (PIRMA); intervenor-oppositor
Senator Raul S. Roco, together with his two other lawyers and representatives
of, or counsel for, the Integrated Bar of the Philippines (IBP), Demokrasya-
Ipagtanggol ang Konstitusyon (DIK), Public Interest Law Center, and Laban ng
Demokratikong Pilipino (LABAN). 12Senator Roco, on that same day, filed a
Motion to Dismiss the Delfin Petition on the ground that it is not the initiatory
petition properly cognizable by the COMELEC.
After hearing their arguments, the COMELEC directed Delfin and the
oppositors to file their "memoranda and/or oppositions/memoranda" within five
days. 13
On 18 December 1996, the petitioners herein Senator Miriam
Defensor Santiago, Alexander Padilla, and Maria Isabel Ongpin filed this
special civil action for prohibition raising the following arguments:
(1) The constitutional provision on people's initiative to amend the
Constitution can only be implemented by law to be passed by Congress.
No such law has been passed; in fact, Senate Bill No. 1290 entitled An
Act Prescribing and Regulating Constitutional Amendments by People's
Initiative, which petitioner Senator Santiago filed on 24 November 1995,
 is still pending before the Senate Committee on Constitutional
Amendments.
(2) It is true that R.A. No. 6735 provides for three systems of initiative,
namely, initiative on the Constitution, on statutes, and on local legislation.
However, it failed to provide any subtitle initiative on the Constitution,
unlike in the other modes of initiative, which are specifically provided for
in Subtitle II and Subtitle III. This deliberate omission indicates that the
matter of people's initiative to amend the Constitution was left to some
future law. Former Senator Arturo Tolentino stressed this deficiency in the
law in his privilege speech delivered before the Senate in 1994: "There is
not a single word in that law which can be considered as implementing
[the provision on constitutional initiative]. Such implementing provisions
have been obviously left to a separate law."
(3) Republic Act No. 6735 provides for the effectivity of the law after
publication in print media. This indicates that the Act covers only laws and
not constitutional amendments because the latter take effect only upon
ratification and not after publication.
(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to
govern "the conduct of initiative on the Constitution and initiative and
referendum on national and local laws, is ultra vires insofar as initiative on
amendments to the Constitution is concerned, since the COMELEC has
no power to provide rules and regulations for the exercise of the right of
initiative to amend the Constitution. Only Congress is authorized by the
Constitution to pass the implementing law.
(5) The people's initiative is limited to amendments to the Constitution, not
to revision thereof. Extending or lifting of term limits constitutes
a revision and is, therefore, outside the power of the people's initiative. cdtai

(6) Finally, Congress has not yet appropriated funds for people's initiative;
neither the COMELEC nor any other government department, agency, or
office has realigned funds for the purpose.
To justify their recourse to us via the special civil action for prohibition, the
petitioners allege that in the event the COMELEC grants the Delfin Petition, the
people's initiative spearheaded by PIRMA would entail expenses to the national
treasury for general re-registration of voters amounting to at least P180 million, not
to mention the millions of additional pesos in expenses which would be incurred in
the conduct of the initiative itself. Hence, the transcendental importance to the
public and the nation of the issues raised demands that this petition for prohibition
be settled promptly and definitely, brushing aside technicalities of procedure and
calling for the admission of a taxpayer's and legislator's suit. 14 Besides, there is
no other plain, speedy, and adequate remedy in the ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to
comment on the petition within a non-extendible period of ten days from notice;
and (b) issued a temporary restraining order, effective immediately and
continuing until further orders, enjoining public respondent COMELEC from
proceeding with the Delfin Petition, and private respondents Alberto and
Carmen Pedrosa from conducting a signature drive for people's initiative to
amend the Constitution.
On 2 January 1997, private respondents, through Atty. Quadra, filed their
Comment 15 on the petition. They argue therein that:
1. IT IS NOT TRUE THAT IT WOULD ENTAIL EXPENSES TO THE
NATIONAL TREASURY FOR GENERAL REGISTRATION OF VOTERS
AMOUNTING TO AT LEAST PESOS: ONE HUNDRED EIGHTY MILLION
(P180,000,000.00)" IF THE COMELEC GRANTS THE PETITION FILED
BY RESPONDENT DELFIN BEFORE THE COMELEC."
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL
GOVERNMENT IF THE COMELEC GRANTS THE PETITION OF
RESPONDENT DELFIN. ALL EXPENSES IN THE SIGNATURE
GATHERING ARE ALL FOR THE ACCOUNT OF RESPONDENT
DELFIN AND HIS VOLUNTEERS PER THEIR PROGRAM OF
ACTIVITIES AND EXPENDITURES SUBMITTED TO THE COMELEC.
THE ESTIMATED COST OF THE DAILY PER DIEM OF THE
SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE
GATHERING TO BE DEPOSITED and TO BE PAID BY DELFIN AND HIS
VOLUNTEERS IS P2,571,200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON
THE SIGNATURE GATHERING WHICH BY LAW COMELEC IS DUTY
BOUND "TO SUPERVISE CLOSELY" PURSUANT TO ITS "INITIATORY
JURISDICTION" UPHELD BY THE HONORABLE COURT IN ITS
RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC
BAY METROPOLITAN AUTHORITY VS . COMELEC, ET . AL. G.R. NO.
125416;
4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE
ENABLING LAW IMPLEMENTING THE POWER OF PEOPLE
INITIATIVE TO PROPOSE AMENDMENTS TOTHE CONSTITUTION.
SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 IS A
DUPLICATION OF WHAT ARE ALREADY PROVIDED FOR IN REP.
ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY
16, 1991 PURSUANT TO REP. ACT 6735 WAS UPHELD BY THE
HONORABLE COURT IN THE RECENT SEPTEMBER 26, 1996
DECISION IN THE CASE OF SUBIC BAY METROPOLITAN
AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE THE
HONORABLE COURT SAID: "THE COMMISSION ON ELECTIONS CAN
DO NO LESS BY SEASONABLY AND JUDICIOUSLY PROMULGATING
 GUIDELINES AND RULES FOR BOTH NATIONAL AND LOCAL USE, IN
IMPLEMENTING OF THESE LAWS."
6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290
CONTAINS A PROVISION DELEGATING TO THE COMELEC THE
POWER TO "PROMULGATE SUCH RULES AND REGULATIONS AS
MAY BE NECESSARY TO CARRY OUT THE PURPOSES OF THIS
ACT." (SEC. 12, S.B. NO. 1290, ENCLOSED AS ANNEX E, PETITION);
7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF
ELECTIVE OFFICIALS PROVIDED UNDER THE 1987
CONSTITUTION IS NOT A "REVISION" OF THE CONSTITUTION. IT IS
ONLY AN AMENDMENT. "AMENDMENT ENVISAGES AN
ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF THE
CONSTITUTION. REVISION CONTEMPLATES A RE-EXAMINATION
OF THE ENTIRE DOCUMENT TO DETERMINE HOW AND TO WHAT
EXTENT IT SHOULD BE ALTERED." (PP. 412-413, 2ND. ED. 1992, 1097
PHIL. CONSTITUTION,BY JOAQUIN G. BERNAS, SJ.).
Also on 2 January 1997, private respondent Delfin filed in his own behalf a
Comment 16 which starts off with an assertion that the instant petition is a "knee-
jerk reaction to a draft 'Petition for Initiative on the 1987 Constitution' . . . which is
not formally filed yet." What he filed on 6 December 1996 was an "Initiatory
Pleading" or "Initiatory Petition," which was legally necessary to start the signature
campaign to amend the Constitution or to put the movement to gather signatures
under COMELEC power and function. On the substantive allegations of the
petitioners, Delfin maintain as follows:
(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735,
which governs the conduct of initiative to amend the Constitution. The
absence therein of a subtitle for such initiative is not fatal, since subtitles
are not requirements for the validity or sufficiency of laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition
in an initiative to amend the Constitution approved by the majority of the
votes cast in the plebiscite shall become effective as of the day of the
plebiscite.

(3) The claim that COMELEC Resolution No. 2300 is ultra vires is
contradicted by (a) Section 2, Article IX-C of the Constitution, which grants
the COMELEC the power to enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite, initiative,
referendum, and recall; and (b) Section 20 of R.A. 6735, which empowers
the COMELEC to promulgate such rules and regulations as may be
necessary to carry out the purposes of the Act.
 (4) The proposed initiative does not involve a revision of, but
mere amendment to, the Constitution because it seeks to alter only a few
specific provisions of the Constitution, or more specifically, only those
which lay term limits. It does not seek to reexamine or overhaul the entire
document.
As to the public expenditures for registration of voters, Delfin considers petitioners'
estimate of P180 million as unreliable, for only the COMELEC can give the exact
figure. Besides, if there will be a plebiscite it will be simultaneous with the 1997
Barangay Elections. In any event, fund requirements for initiative will be a priority
government expense because it will be for the exercise of the sovereign power of
the people.
In the Comment 17 for the public respondent COMELEC, filed also on 2
January 1997, the Office of the Solicitor General contends that:
(1) R.A. No. 6735 deals with, inter alia, people's initiative to amend the
Constitution. Its Section 2 on Statement of Policy explicitly affirms,
recognizes, and guarantees that power; and its Section 3, which
enumerates the three systems of initiative, includes initiative on the
Constitution and defines the same as the power to propose amendments
to the Constitution. Likewise, its Section 5 repeatedly
mentions initiative on the Constitution.
(2) A separate subtitle on initiative on the Constitution is not necessary
in R.A. No. 6735 because, being national in scope, that system
of initiative is deemed included in the subtitle on National Initiative and
Referendum; and Senator Tolentino simply overlooked pertinent
provisions of the law when he claimed that nothing therein was provided
for initiative on the Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a material proof
that R.A. No. 6735 does not deal with initiative on the Constitution.
(4) Extension of term limits of elected officials constitutes a mere
amendment to the Constitution, not a revision thereof.
(5) COMELEC Resolution No. 2300 was validly issued under Section 20
of R.A. No. 6735 and under the Omnibus Election Code. The rule-making
power of the COMELEC to implement the provisions of R.A. No. 6735 was
in fact upheld by this Court in Subic Bay Metropolitan Authority
vs. COMELEC.
On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary
restraining order; (b) noted the aforementioned Comments and the Motion to Lift
Temporary Restraining Order filed by private respondents through Atty. Quadra,
as well as the latter's Manifestation stating that he is the counsel for private
respondents Alberto and Carmen Pedrosa only and the Comment he filed was for
the Pedrosas; and (c) granted the Motion for Intervention filed on 6 January 1997
by Senator Raul Roco and allowed him to file his Petition in Intervention not later
than 20 January 1997; and (d) set the case for hearing on 23 January 1997 at 9:30
a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang
Konstitusyon (DIK) and the Movement of Attorneys for Brotherhood Integrity
and Nationalism, Inc. (MABINI), filed a Motion for Intervention. Attached to the
motion was their Petition in Intervention, which was later replaced by an
Amended Petition in Intervention wherein they contend that:
(1) The Delfin proposal does not involve a mere amendment to, but
a revision of, the Constitution because, in the words of Fr. Joaquin
Bernas, SJ., 18 it would involve a change from a political philosophy that
rejects unlimited tenure to one that accepts unlimited tenure; and although
the change might appear to be an isolated one, it can affect other
provisions, such as, on synchronization of elections and on the State
policy of guaranteeing equal access to opportunities for public service and
prohibiting political dynasties. 19 A revision cannot be done
by initiative which, by express provision of Section 2 of Article XVII of the
Constitution, is limited toamendments.
(2) The prohibition against reelection of the President and the limits
provided for all other national and local elective officials are based on the
philosophy of governance, "to open up the political arena to as many as
there are Filipinos qualified to handle the demands of leadership, to break
the concentration of political and economic powers in the hands of a few,
and to promote effective proper empowerment for participation in policy
and decision-making for the common good"; hence, to remove the term
limits is to negate and nullify the noble vision of the 1987 Constitution.
(3) The Delfin proposal runs counter to the purpose of initiative particularly
in a conflict-of-interest situation. Initiative is intended as a fallback position
that may be availed of by the people only if they are dissatisfied with the
performance of their elective officials, but not as a premium for good
performance. 20
(4) R.A. No 6735 is deficient and inadequate in itself to be called the
enabling law that implements the people's initiative on amendments to the
Constitution. It fails to state (a) the proper parties who may file the petition,
(b) the appropriate agency before whom the petition is to be filed, (c) the
contents of the petition, (d) the publication of the same, (e) the ways and
means of gathering the signatures of the voters nationwide and 3% per
legislative district, (f) the proper parties who may oppose or question the
veracity of the signatures, (g) the role of the COMELEC in the verification
of the signatures and the sufficiency of the petition, (h) the appeal from
any decision of the COMELEC, (i) the holding of a plebiscite, and (g) the
appropriation of funds for such people's initiative. Accordingly, there being
 no enabling law, the COMELEC has no jurisdiction to hear Delfin's
petition.
(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by
COMELEC Resolution No. 2300, since the COMELEC is without authority
to legislate the procedure for a people's initiative under Section 2 of Article
XVII of the Constitution. That function exclusively pertains to Congress.
Section 20 of R.A. No. 6735 does not constitute a legal basis for the
Resolution, as the former does not set a sufficient standard for a valid
delegation of power.
On 20 January 1997, Senator Raul Roco filed his Petition in Intervention. 21 He
avers that R.A. No. 6735 is the enabling law that implements the people's right to
initiate constitutional amendments. This law is a consolidation of Senate Bill No.
17 and House Bill No. 21505; he co-authored the House Bill and even delivered a
sponsorship speech thereon. He likewise submits that the COMELEC was
empowered under Section 20 of that law to promulgate COMELEC Resolution No.
2300. Nevertheless, he contends that the respondent Commission is without
jurisdiction to take cognizance of the Delfin Petition and to order its publication
because the said petition is not the initiatory pleading contemplated under the
Constitution, Republic Act No. 6735, and COMELEC Resolution No. 2300. What
vests jurisdiction upon the COMELEC in an initiative on the Constitution is the filing
of a petition for initiative which is signed by the required number of registered
voters. He also submits that the proponents of a constitutional amendment cannot
avail of the authority and resources of the COMELEC to assist them in securing
the required number of signatures, as the COMELEC's role in an initiative on the
Constitution is limited to the determination of the sufficiency of the initiative petition
and the call and supervision of a plebiscite, if warranted. cdt

On 20 January 1997, LABAN filed a Motion for Leave to Intervene.

The following day, the IBP filed a Motion for Intervention to which it
attached a Petition in Intervention raising the following arguments:
(1) Congress has failed to enact an enabling law mandated under Section
2, Article XVII of the 1987 Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute for the required
implementing law on the initiative to amend the Constitution.
(3) The Petition for Initiative suffers from a fatal defect in that it does not
have the required number of signatures.
(4) The petition seeks, in effect a revision of the Constitution, which can
be proposed only by Congress or a constitutional convention. 22
On 21 January 1997, we promulgated a Resolution (a) granting the Motions for
Intervention filed by the DIK and MABINI and by the IBP, as well as the Motion for
Leave to Intervene filed by LABAN; (b) admitting the Amended Petition in
Intervention of DIK and MABINI, and the Petitions in Intervention of Senator Roco
and of the IBP; (c) requiring the respondents to file within a nonextendible period
of five days their Consolidated Comments on the aforesaid Petitions in
Intervention; and (d) requiring LABAN to file its Petition in Intervention within a
nonextendible period of three days from notice, and the respondents to comment
thereon within a nonextendible period of five days from receipt of the said Petition
in Intervention.
At the hearing of the case on 23 January 1997, the parties argued on the
following pivotal issues, which the Court formulated in light of the allegations
and arguments raised in the pleadings so far filed:
1. Whether R.A. No. 6735, entitled An Act Providing for a System of
Initiative and Referendum and Appropriating Funds Therefor, was
intended to include or coverinitiative on amendments to the Constitution;
and if so, whether the Act, as worded, adequately covers such initiative.
2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules
and Regulations Governing the Conduct of Initiative on the Constitution,
and Initiative and Referendum on National and Local Laws) regarding the
conduct of initiative on amendments to the Constitution is valid,
considering the absence in the law of specific provisions on the conduct
of such initiative.

3. Whether the lifting of term limits of elective national and local officials,
as proposed in the draft "Petition for Initiative on the 1987 Constitution,"
would constitute a revision of, or an amendment to, the Constitution.
4. Whether the COMELEC can take cognizance of, or has jurisdiction
over, a petition solely intended to obtain an order (a) fixing the time and
dates for signature gathering; (b) instructing municipal election officers to
assist Delfin's movement and volunteers in establishing signature
stations; and (c) directing or causing the publication of, inter alia, the
unsigned proposed Petition for Initiative on the 1987 Constitution.
5. Whether it is proper for the Supreme Court to take cognizance of the
petition when there is a pending case before the COMELEC.
After hearing them on the issues, we required the parties to submit simultaneously
their respective memoranda within twenty days and requested intervenor Senator
Roco to submit copies of the deliberations on House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the
allegations and arguments in the main Petition. It further submits that the
COMELEC should have dismissed the Delfin Petition for failure to state a sufficient
cause of action and that the Commission's failure or refusal to do so constituted
grave abuse of discretion amounting to lack of jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both the
Journal and the Record of the House of Representatives relating to the
deliberations of House Bill No. 21505, as well as the transcripts of stenographic
notes on the proceedings of the Bicameral Conference Committee, Committee on
Suffrage and Electoral Reforms, of 6 June 1989 on House Bill No. 21505 and
Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated
Comments on the Petitions in Intervention of Senator Roco, DIK and MABINI, and
IBP. 23 The parties thereafter filed, in due time, their separate memoranda. 24
As we stated in the beginning, we resolved to give due course to this special civil
action.
For a more logical discussion of the formulated issues, we shall first take up the
fifth issue which appears to pose a prejudicial procedural question.
I
THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY
IN THE COMELEC OF THE DELFIN PETITION.
Except for the petitioners and intervenor Roco, the parties paid no serious attention
to the fifth issue, i.e., whether it is proper for this Court to take cognizance of this
special civil action when there is a pending case before the COMELEC. The
petitioners provide an affirmative answer. Thus:
28. The Comelec has no jurisdiction to take cognizance of the petition filed
by private respondent Delfin. This being so, it becomes imperative to stop
the Comelec from proceeding any further, and under the Rules of Court,
Rule 65, Section 2, a petition for prohibition is the proper remedy.
29. The writ of prohibition is an extraordinary judicial writ issuing out of a
court of superior jurisdiction and directed to an inferior court, for the
purpose of preventing the inferior tribunal from usurping a jurisdiction with
which it is not legally vested. (People v. Vera, supra., p. 84). In this case
the writ is an urgent necessity, in view of the highly divisive and adverse
environmental consequences on the body politic of the questioned
Comelec order. The consequent climate of legal confusion and political
instability begs for judicial statesmanship.
30. In the final analysis, when the system of constitutional law is
threatened by the political ambitions of man, only the Supreme Court can
save a nation in peril and uphold the paramount majesty of the
Constitution. 25
It must be recalled that intervenor Roco filed with the COMELEC a motion to
dismiss the Delfin Petition on the ground that the COMELEC has no jurisdiction or
authority to entertain the petition. 26 The COMELEC made no ruling thereon
evidently because after having heard the arguments of Delfin and the oppositors
at the hearing on 12 December 1996, it required them to submit within five days
their memoranda or oppositions/memoranda. 27 Earlier, or specifically on 6
December 1996, it practically gave due course to the Delfin Petition by ordering
Delfin to cause the publication of the petition, together with the attached Petition
for Initiative, the signature form, and the notice of hearing; and by setting the case
for hearing. The COMELEC's failure to act on Roco's motion to dismiss and its
insistence to hold on to the petition rendered ripe and viable the instant petition
under Section 2 of Rule 65 of the Rules of Court, which provides:
SEC. 2. Petition for prohibition. Where the proceedings of any tribunal,
corporation, board, or person, whether exercising functions judicial or
ministerial, are without or in excess of its or his jurisdiction, or with grave
abuse of discretion, and there is no appeal or any other plain, speedy and
adequate remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court alleging the facts
with certainty and praying that judgment be rendered commanding the
defendant to desist from further proceedings in the action or matter
specified therein.
It must also be noted that intervenor Roco claims that the COMELEC has no
jurisdiction over the Delfin Petition because the said petition is not supported by
the required minimum number of signatures of registered voters. LABAN also
asserts that the COMELEC gravely abused its discretion in refusing to dismiss the
Delfin Petition, which does not contain the required number of signatures. In light
of these claims, the instant case may likewise be treated as a special civil action
for certiorariunder Section I of Rule 65 of the Rules of Court.
In any event, as correctly pointed out by intervenor Roco in his
Memorandum, this Court may brush aside technicalities of procedure in cases
of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona,
Jr.; 28
A party's standing before this Court is a procedural technicality which it
may, in the exercise of its discretion, set aside in view of the importance
of issues raised. In the landmark Emergency Powers Cases, this Court
brushed aside this technicality because 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.
II
R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE
ON AMENDMENTS TO THE CONSTITUTION, BUT IS,
UNFORTUNATELY, INADEQUATE TO COVER THAT SYSTEM.
Section 2 of Article XVII of the Constitution provides:
 SEC. 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at least
twelve per centum of the total number of registered voters, of which every
legislative district must be represented by at least three per centum of the
registered voters therein. No amendment under this section shall be
authorized within five years following the ratification of
this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this
right.
This provision is not self-executory. In his book, 29 Joaquin Bernas, a member of
the 1986 Constitutional Commission, stated:
Without implementing legislation Section 2 cannot operate. Thus,
although this mode of amending the Constitution is a mode of amendment
which bypasses congressional action, in the last analysis it still is
dependent on congressional action.
Bluntly stated, the right of the people to directly propose amendments to the
Constitution through the system of initiative would remain entombed in the cold
niche ofthe Constitution until Congress provides for its implementation. Stated
otherwise, while the Constitution has recognized or granted that right, the people
cannot exercise it if Congress, for whatever reason, does not provide for its
implementation.
This system of initiative was originally included in Section 1 of the draft Article on
Amendment or Revision proposed by the Committee on Amendments and
Transitory Provisions of the 1986 Constitutional Commission in its Committee
Report No. 7 (Proposed Resolution No. 332). 30 That section reads as follows:
SEC. 1. Any amendment to, or revision of, this Constitution may be
proposed:
(a) by the National Assembly upon a vote of three-fourths of all its
members; or
(b) by a constitutional convention; or
(c) directly by the people themselves thru initiative as provided for in
Article _____ Section _____ of the Constitution. 31
After several interpellations, but before the period of amendments, the Committee
submitted a new formulation of the concept of initiative which it denominated as
Section 2; thus:
MR. SUAREZ.
Thank you, Madam President. May we respectfully call attention of
the Members of the Commission that pursuant to the mandate
given to us last night, we submitted this afternoon a complete
 Committee Report No. 7 which embodies the proposed provision
governing the matter of initiative. This is now covered by Section 2
of the complete committee report. With the permission of the
Members, may I quote Section 2:
"The people may, after five years from the date of the last plebiscite
held, directly propose amendments to this Constitution thru
initiative upon petition of at least ten percent of the registered
voters."
This completes the blanks appearing in the original Committee
Report No. 7. 32
The interpellations on Section 2 showed that the details for carrying out Section
2 are left to the legislature. Thus:
FR. BERNAS.
Madam President, just two simple, clarificatory questions.
First, on Section 1 on the matter of initiative upon petition of at least
10 percent, there are no details in the provision on how to carry this
out. Do we understand therefore that we are leaving this matter to
the legislature?

MR. SUAREZ.
That is right, Madam President.
FR. BERNAS.
And do we also understand, therefore, that for as long as the
legislature does not pass the necessary implementing law on this,
this will not operate?
MR. SUAREZ.
That matter was also taken up during the committee hearing,
especially with respect to the budget appropriations which would
have to be legislated so that the plebiscite could be called. We
deemed it best that this matter be left to the legislature. The
Gentleman is right. In any event, as envisioned, no amendment
through the power of initiative can be called until after five years
from the date of the ratification of this Constitution. Therefore, the
first amendment that could be proposed through the exercise of
this initiative power would be after five years. It is reasonably
expected that within that five-year period, the National Assembly
can come up with the appropriate rules governing the exercise of
this power.
FR. BERNAS.
 Since the matter is left to the legislature the details on how this
is to be carried out is it possible that, in effect, what will be
presented to the people for ratification is the work of the legislature
rather than of the people? Does this provision exclude that
possibility?
MR. SUAREZ.
No, it does not exclude that possibility because even the legislature
itself as a body could propose that amendment, maybe individually
or collectively, if it fails to muster the three-fourths vote in order to
constitute itself as a constituent assembly and submit that proposal
to the people for ratification through the process of an initiative.
xxx xxx xxx
MS. AQUINO.
Do I understand from the sponsor that the intention in the proposal
is to vest constituent power in the people to amend the
Constitution?
MR. SUAREZ.
That is absolutely correct, Madam President.
MS. AQUINO.
I fully concur with the underlying precept of the proposal in terms
of institutionalizing popular participation in the drafting of the
Constitution or in the amendment thereof, but I would have a lot of
difficulties in terms of accepting the draft of Section 2, as written.
Would the sponsor agree with me that in the hierarchy of legal
mandate, constituent power has primacy over all other legal
mandates?
MR. SUAREZ.
The Commissioner is right, Madam President.
MS. AQUINO.
And would the sponsor agree with me that in the hierarchy of legal
values, the Constitution is source of all legal mandates and that
therefore we require a great deal of circumspection in the drafting
and in the amendments of the Constitution?
MR. SUAREZ.
That proposition is nondebatable.
MS. AQUINO.
 Such that in order to underscore the primacy of constituent power
we have a separate article in the Constitution that would
specifically cover the process and the modes of amending the
Constitution?
MR. SUAREZ.
That is right, Madam President.
MS. AQUINO.
Therefore, is the sponsor inclined, as the provisions are drafted
now, to again concede to the legislature the process or the
requirement of determining the mechanics of amending the
Constitution by people's initiative?
MR. SUAREZ.
The matter of implementing this could very well be placed in the
hands of the National Assembly, not unless we can incorporate into
this provision the mechanics that would adequately cover all the
conceivable situations. 33
It was made clear during the interpellations that the aforementioned Section 2 is
limited to proposals to AMEND not to REVISE the Constitution; thus:
MR. SUAREZ.
. . . This proposal was suggested on the theory that this matter of
initiative, which came about because of the extraordinary
developments this year, has to be separated from the traditional
modes of amending the Constitution as embodied in Section 1. The
committee members felt that this system of initiative should not
extend to the revision of the entire Constitution, so we removed it
from the operation of Section 1 of the proposed Article on
Amendment or Revision. 34
xxx xxx xxx
MS. AQUINO.
In which case, I am seriously bothered by providing this process of
initiative as a separate section in the Article on Amendment. Would
the sponsor be amenable to accepting an amendment in terms of
realigning Section 2 as another subparagraph (c) of Section 1,
instead of setting it up as another separate section as if it were a
self-executing provision?
MR. SUAREZ.
We would be amenable except that, as we clarified a while ago, this
process of initiative is limited to the matter of amendment and
should not expand into a revision which contemplates a total
 overhaul of the Constitution. That was the sense that was
conveyed by the Committee.
MS. AQUINO.
In other words, the Committee was attempting to distinguish the
coverage of modes (a) and (b) in Section 1 to include the process
of revision; whereas theprocess of initiation to amend, which is
given to the public, would only apply to amendments?
MR. SUAREZ.
That is right. Those were the terms envisioned in the Committee. 35

Amendments to the proposed Section 2 were thereafter introduced by then

Commissioner Hilario G. Davide, Jr., which the Committee accepted. Thus:
MR. DAVIDE.
Thank you Madam President. I propose to substitute the entire
Section 2 with the following:
xxx xxx xxx
MR. DAVIDE.
Madam President, I have modified the proposed amendment after
taking into account the modifications submitted by the sponsor
himself and the honorable Commissioners Guingona, Monsod,
Rama, Ople, de los Reyes and Romulo. The modified amendment
in substitution of the proposed Section 2 will now read as follows:
"SEC. 2. AMENDMENTS TO THIS CONSTITUTION MAY
LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE
THROUGH INITIATIVE UPON A PETITION OF AT LEAST
TWELVE PERCENT OF THE TOTAL NUMBER OF REGISTERED
VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE
REPRESENTED BY AT LEAST THREE PERCENT OF THE
REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER
THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS
FOLLOWING THE RATIFICATION OF
THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY
FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR
THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.
MR. SUAREZ.
Madam President, considering that the proposed amendment is
reflective of the sense contained in Section 2 of our completed
Committee Report No. 7, we accept the proposed amendment. 36
The interpellations which ensued on the proposed modified amendment to Section
2 clearly showed that it was a legislative act which must implement the exercise of
the right. Thus:
MR. ROMULO.
Under Commissioner Davide's amendment, is it possible for the
legislature to set forth certain procedures to carry out the initiative
. . .?
MR. DAVIDE.
It can.
xxx xxx xxx
MR. ROMULO.
But the Commissioner's amendment does not prevent the
legislature from asking another body to set the proposition in proper
form.
MR. DAVIDE.
The Commissioner is correct. In other words, the implementation
of this particular right would be subject to legislation, provided the
legislature cannot determine anymore the percentage of the
requirement.
MR. ROMULO.
But the procedures, including the determination of the proper form
for submission to the people, may be subject to legislation.
MR. DAVIDE.
As long as it will not destroy the substantive right to initiate. In other
words, none of the procedures to be proposed by the legislative
body must diminish or impair the right conceded here.
MR. ROMULO.
In that provision of the Constitution can the procedures which I
have discussed be legislated?
MR. DAVIDE.
Yes. 37
Commissioner Davide also reaffirmed that his modified amendment strictly
confines initiative to AMENDMENTS to NOT REVISION of the Constitution.
Thus:
MR. DAVIDE.
 With pleasure, Madam President.
MR. MAAMBONG.
My first question: Commissioner Davide's proposed amendment on
line 1 refers to "amendment." Does it not cover the word "revision"
as defined by Commissioner Padilla when he made the distinction
between the words "amendments" and "revision"?
MR. DAVIDE.
No, it does not, because "amendments" and "revision" should be
covered by Section 1. So insofar as initiative is concerned, it can
only relate to "amendments" not "revision." 38
Commissioner Davide further emphasized that the process of proposing
amendments through initiative must be more rigorous and difficult than the
initiative on legislation. Thus:
MR. DAVIDE.
A distinction has to be made that under this proposal, what is
involved is an amendment to the Constitution. To amend a
Constitution would ordinarily require a proposal by the National
Assembly by a vote of three-fourths; and to call a constitutional
convention would require a higher number. Moreover, just to
submit the issue of calling a constitutional convention, a majority of
the National Assembly is required, the import being that the
process of amendment must be made more rigorous and difficult
than probably initiating an ordinary legislation or putting an end to
a law proposed by the National Assembly by way of a referendum.
I cannot agree to reducing the requirement approved by the
Committee on the Legislative because it would require another
voting by the Committee, and the voting as precisely based on a
requirement of 10 percent. Perhaps, I might present such a
proposal, by way of an amendment, when the Commission shall
take up the Article on the Legislative or on the National Assembly
on plenary sessions. 39
The Davide modified amendments to Section 2 were subjected to amendments,
and the final version, which the Commission approved by a vote of 31 in favor and
3 against, reads as follows:
MR. DAVIDE.
Thank you Madam President. Section 2, as amended, reads as
follows: "AMENDMENT TO THIS CONSTITUTION MAY
LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE
THROUGH INITIATIVE UPON A PETITION OF AT LEAST
TWELVE PERCENT OF THE TOTAL NUMBER OF REGISTERED
VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE
 REPRESENTED BY AT LEAST THREE PERCENT OF THE
REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER
THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS
FOLLOWING THE RATIFICATION OF
THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY
FIVE YEARS THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR

THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT. 40
The entire proposed Article on Amendments or Revisions was approved on second
reading on 9 July 1986. 41 Thereafter, upon his motion for reconsideration,
Commissioner Gascon was allowed to introduce an amendment to Section 2
which, nevertheless, was withdrawn. In view thereof, the Article was again
approved on Second and Third Readings on 1 August 1986. 42
However, the Committee on Style recommended that the approved Section 2 be
amended by changing "percent" to "per centum" and "thereof" to "therein" and
deleting the phrase "by law" in the second paragraph so that said paragraph
reads: The Congress 43 shall provide for the implementation of the exercise of this
right. 44This amendment was approved and is the text of the present second
paragraph of Section 2.
The conclusion then is inevitable that, indeed, the system of initiative
on the Constitution under Section 2 of Article XVII of the Constitution is not self-
executory.
Has Congress "provided" for the implementation of the exercise of this
right? Those who answer the question in the affirmative, like the private
respondents and intervenor Senator Roco, point to us R.A. No. 6735.
There is, of course, no other better way for Congress to implement the
exercise of the right than through the passage of a statute or legislative act.
This is the essence or rationale of the last minute amendment by the
Constitutional Commission to substitute the last paragraph of Section 2 of
Article XVII then reading:
The Congress 45 shall by law provide for the implementation of the
exercise of this right.
with
The Congress shall provide for the implementation of the exercise of this
right.
This substitute amendment was an investiture on Congress of a power to provide
for the rules implementing the exercise of the right. The "rules" means "the details
on how [the right] is to be carried out." 46
We agree that R.A. No. 6735 was, as its history reveals, intended to
cover initiative to propose amendments to the Constitution. The Act is a
consolidation of House Bill No. 21505 and Senate Bill No. 17. The former was
prepared by the Committee on Suffrage and Electoral Reforms of the House of
Representatives on the basis of two House Bills referred to it, viz., (a) House Bill
No. 497, 47 which dealt with the initiative and referendum mentioned in Sections 1
and 32 of Article VI of the Constitution; and (b) House Bill No. 988, 48 which dealt
with the subject matter of House Bill No. 497, as well as with initiative and
referendum under Section 3 of Article X (Local Government) and initiative provided
for in Section 2 of Article XVII of the Constitution. Senate Bill No. 17 49 solely dealt
with initiative and referendum concerning ordinances or resolutions of local
government units. The Bicameral Conference Committee consolidated Senate Bill
No. 17 and House Bill No. 21505 into a draft bill, which was subsequently approved
on 8 June 1989 by the Senate 50 and by the House of Representatives. 51 This
approved bill is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of
Congress to "provide for the implementation of the exercise of the right?"
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC, Section
2 of the Act does not suggest an initiative on amendments to the Constitution.
The said section reads:
SEC. 2. Statement and Policy. The power of the people under a
system of initiative and referendum to directly propose, enact, approve or
reject, in whole or in part, the Constitution, laws, ordinances, or
resolutions passed by any legislative body upon compliance with the
requirements of this Act is hereby affirmed, recognized and guaranteed.
(Emphasis supplied).
The inclusion of the word "Constitution" therein was a delayed
afterthought. That word is neither germane nor relevant to said section, which
exclusively relates to initiative and referendum on national laws and local
laws, ordinances, and resolutions. That section is silent as
to amendments on the Constitution. As pointed out earlier, initiative on the
Constitution is confined only to proposals to AMEND. The people are not
accorded the power to "directly propose, enact, approve, or reject, in whole or
in part, the Constitution" through the system of initiative. They can only do so
with respect to "laws, ordinances, or resolutions."
The foregoing conclusion is further buttressed by the fact that this section was
lifted from Section 1 of Senate Bill No. 17, which solely referred to a statement of
policy on local initiative and referendum and appropriately used the phrases
"propose and enact," "approve or reject" and "in whole or in part." 52
 Second. It is true that Section 3 (Definition of Terms) of the Act
defines initiative on amendments to the Constitution and mentions it as one of
the three systems of initiative, and that Section 5 (Requirements) restates the
constitutional requirements as to the percentage of the registered voters who
must submit the proposal. But unlike in the case of the other systems
of initiative, the Act does not provide for the contents of a petition for initiative
on the Constitution. Section 5, paragraph (c) requires, among other things,
statement of the proposed law sought to be enacted, approved or rejected,
amended or repealed, as the case may be. It does not include, as among the
contents of the petition, the provisions of the Constitution sought to be
amended, in the case of initiative on the Constitution. Said paragraph (c) reads
in full as follows:cda

(c) The petition shall state the following:

c.1 contents or text of the proposed law sought to be enacted,
approved or rejected, amended or repealed, as the case may be;
c.2 the proposition;
c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided therein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition is not more than one
hundred (100) words which shall be legibly written or
printed at the top of every page of the petition.
(Emphasis supplied).
The use of the clause "proposed laws sought to be enacted, approved or rejected,
amended or repealed" only strengthens the conclusion that Section 2, quoted
earlier, excludes initiative on amendments to the Constitution.
Third. While the Act provides subtitles for National Initiative and Referendum
(Subtitle II) and for Local Initiative and Referendum (Subtitle III), no subtitle is
provided forinitiative on the Constitution. This conspicuous silence as to the latter
simply means that the main thrust of the Act is initiative and referendum on national
and local laws. If Congress intended R.A. No. 6735 to fully provide for the
implementation of the initiative on amendments to the Constitution, it could have
provided for a subtitle therefor, considering that in the order of things, the primacy
of interest, or hierarchy of values, the right of the people to directly propose
amendments to the Constitution is far more important than the initiative on national
and local laws.
We cannot accept the argument that the initiative on amendments to the
Constitution is subsumed under the subtitle on National Initiative and
Referendum because it is national in scope. Our reading of Subtitle II (National
 Initiative and Referendum) and Subtitle III (Local Initiative and Referendum)
leaves no room for doubt that the classification is not based on the scope of the
initiative involved, but on its nature and character. It is "national initiative," if
what is proposed to be adopted or enacted is a national law, or a law which
only Congress can pass. It is "local initiative" if what is proposed to be adopted
or enacted is a law, ordinance, or resolution which only the legislative bodies of
the governments of the autonomous regions, provinces, cities, municipalities,
and barangays can pass. This classification of initiative into national and local is
actually based on Section 3 of the Act, which we quote for emphasis and
clearer understanding:
SEC. 3. Definition of Terms
xxx xxx xxx
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a petition
proposing amendments to the Constitution;
a.2 Initiative on Statutes which refers to a petition proposing to
enact a national legislation; and
a.3 Initiative on local legislation which refers to a petition proposing
to enact a regional, provincial, city, municipal, or barangay
law, resolution or ordinance. (Emphasis supplied).
Hence, to complete the classification under subtitles there should have been a
subtitle on initiative on amendments to the Constitution. 53
A further examination of the Act even reveals that the subtitling is not
accurate. Provisions not germane to the subtitle on National Initiative and
Referendum are placed therein, like (1) paragraphs (b) and (c) of Section 9,
which reads:
(b) The proposition in an initiative on the Constitution approved by the
majority of the votes cast in the plebiscite shall become effective
as to the day of the plebiscite.
(c) A national or local initiative proposition approved by majority of the
votes cast in an election called for the purpose shall become
effective fifteen (15) days after certification and proclamation of the
Commission. (Emphasis supplied).
(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative
with the legislative bodies of local governments; thus:
SEC. 11. Indirect Initiative. Any duly accredited people's organization,
as defined by law, may file a petition for indirect initiative with the House
of Representatives, and other legislative bodies. . .
 and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC
on the findings of sufficiency or insufficiency of the petition for initiative or
referendum, which could be petitions for both national and local initiative and
referendum.

Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on Local
Initiative and Referendum is misplaced, 54 since the provision therein applies to
both national and local initiative and referendum. It reads:
SEC. 18. Authority of Courts. Nothing in this Act shall prevent or
preclude the proper courts from declaring null and void any proposition
approved pursuant to this Act for violation of the Constitution or want of
capacity of the local legislative body to enact the said measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing
for the details in the implementation of initiative and referendum on national and
local legislation thereby giving them special attention, it failed, rather intentionally,
to do so on the system of initiative on amendments to the Constitution. Anent the
initiative on national legislation, the Act provides for the following:
(a) The required percentage of registered voters to sign the petition and
the contents of the petition;
(b) The conduct and date of the initiative;
(c) The submission to the electorate of the proposition and the required
number of votes for its approval;
(d) The certification by the COMELEC of the approval of the proposition;
(e) The publication of the approved proposition in the Official Gazette or
in a newspaper of general circulation in the Philippines; and
(f) The effects of the approval or rejection of the proposition. 55
As regards local initiative, the Act provides for the following:
(a) The preliminary requirement as to the number of signatures of
registered voters for the petition;
(b) The submission of the petition to the local legislative body concerned;
(c) The effect of the legislative body's failure to favorably act thereon, and
the invocation of the power of initiative as a consequence thereof;
(d) The formulation of the proposition;
(e) The period within which to gather the signatures;
(f) The persons before whom the petition shall be signed;
 (g) The issuance of a certification by the COMELEC through its official in
the local government unit concerned as to whether the required
number of signatures have been obtained;
(h) The setting of a date by the COMELEC for the submission of the
proposition to the registered voters for their approval, which must
be within the period specified therein;
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition;
(k) The limitations on local initiative; and
(l) The limitations upon local legislative bodies. 56

Upon the other hand, as to initiative on amendments to the Constitution, R.A. No.
6735, in all of its twenty-three sections, merely (a) mentions, the word
"Constitution" in Section 2; (b) defines "initiative on the Constitution" and includes
it in the enumeration of the three systems of initiative in Section 3; (c) speaks of
"plebiscite" as the process by which the proposition in an initiative on the
Constitution may be approved or rejected by the people; (d) reiterates the
constitutional requirements as to the number of voters who should sign the petition;
and (e) provides for the date of effectivity of the approved proposition.
There was, therefore, an obvious downgrading of the more important or the
paramount system of initiative. R.A. No. 6735 thus delivered a humiliating blow to
the system of initiative on amendments to the Constitution by merely paying it a
reluctant lip service. 57
The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete,
inadequate, or wanting in essential terms and conditions insofar as initiative on
amendments to the Constitution is concerned. Its lacunae on this substantive
matter are fatal and cannot be cured by "empowering" the COMELEC "to
promulgate such rules and regulations as may be necessary to carry out the
purposes of [the] Act. 58
The rule is that what has been delegated, cannot be delegated or as expressed in
a Latin maxim:potestas delegata non delegari potest. 59 The recognized
exceptions to the rule are as follows:
(1) Delegation of tariff powers to the President under Section 28(2) of
Article VI of the Constitution;
(2) Delegation of emergency powers to the President under Section 23(2)
of Article VI of the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
 (5) Delegation to administrative bodies. 60
Empowering the COMELEC, an administrative body exercising quasi-judicial
functions, to promulgate rules and regulations is a form of delegation of legislative
authority under no. 5 above. However, in every case of permissible delegation,
there must be a showing that the delegation itself is valid. It is valid only if the law
(a) is complete in itself, setting forth therein the policy to be executed, carried out,
or implemented by the delegate; and (b) fixes a standard the limits of which are
sufficiently determinate and determinable to which the delegate must conform
in the performance of his functions. 61 A sufficient standard is one which 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. 62
Insofar as initiative to propose amendments to the Constitution is concerned, R.A.
No. 6735 miserably failed to satisfy both requirements in subordinate legislation.
The delegation of the power to the COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES
AND REGULATIONS ON THE CONDUCT OF INITIATIVE ON
AMENDMENTS TO THE CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and
regulations to implement the exercise of the right of the people to directly propose
amendments to the Constitution through the system of initiative. It does not have
that power under R.A. No. 6735. Reliance on the COMELEC's power under
Section 2(1) of Article IX-C of the Constitution is misplaced, for the laws and
regulations referred to therein are those promulgated by the COMELEC under (a)
Section 3 of Article IX-C of the Constitution, or (b) a law where subordinate
legislation is authorized and which satisfies the "completeness" and the "sufficient
standard" tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF
DISCRETION IN ENTERTAINING THE DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the
power of Congress to implement the right to initiate constitutional amendments, or
that it has validly vested upon the COMELEC the power of subordinate legislation
and that COMELEC Resolution No. 2300 is valid, the COMELEC acted without
jurisdiction or with grave abuse of discretion in entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b)of R.A. No.
6735, a petition for initiative on the Constitution must be signed by at least 12% of
the total number of registered voters of which every legislative district is
represented by at least 3% of the registered voters therein. The Delfin Petition
does not contain signatures of the required number of voters. Delfin himself admits
that he has not yet gathered signatures and that the purpose of his petition is
primarily to obtain assistance in his drive to gather signatures. Without the required
signatures, the petition cannot be deemed validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after its filing.
The petition then is the initiatory pleading. Nothing before its filing is cognizable by
the COMELEC, sitting en banc. The only participation of the COMELEC or its
personnel before the filing of such petition are (1) to prescribe the form of the
petition; 63 (2) to issue through its Election Records and Statistics Office a
certificate on the total number of registered voters in each legislative district; 64 (3)
to assist, through its election registrars, in the establishment of signature
stations; 65 and (4) to verify, through its election registrars, the signatures on the
basis of the registry list of voters, voters' affidavits, and voters' identification cards
used in the immediately preceding election. 66
Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and
COMELEC Resolution No. 2300, it cannot be entertained or given cognizance of
by the COMELEC. The respondent Commission must have known that the petition
does not fall under any of the actions or proceedings under the COMELEC Rules
of Procedure or under Resolution No. 2300, for which reason it did not assign to
the petition a docket number. Hence, the said petition was merely entered as UND,
meaning, undocketed. That petition was nothing more than a mere scrap of paper,
which should not have been dignified by the Order of 6 December 1996, the
hearing on 12 December 1996, and the order directing Delfin and the oppositors
to file their memoranda or oppositions. In so dignifying it, the COMELEC acted
without jurisdiction or with grave abuse of discretion and merely wasted its time,
energy, and resources.
The foregoing considered, further discussion on the issue of whether the proposal
to lift the term limits of elective national and local officials is an amendment to, and
not a revision of, the Constitution is rendered unnecessary, if not academic.
CONCLUSION
This petition must then be granted, and the COMELEC should be permanently
enjoined from entertaining or taking cognizance of any petition for initiative on
amendments to the Constitution until a sufficient law shall have been validly
enacted to provide for the implementation of the system.
We feel, however, that the system of initiative to propose amendments to the
Constitution should no longer be kept in the cold; it should be given flesh and
blood, energy and strength. Congress should not tarry any longer in complying
with the constitutional mandate to provide for the implementation of the right of the
people under that system. cdll
WHEREFORE, judgment is hereby rendered
a) GRANTING the instant petition;
b) DECLARING R. A. No. 6735 inadequate to cover the system of
initiative on amendments to the Constitution, and to have failed to
provide sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300 of the
Commission on Elections prescribing rules and regulations on the
conduct of initiative or amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the
DELFIN petition (UND-96-037).
The Temporary Restraining Order issued on 18 December 1996 is made
permanent as against the Commission on Elections, but is LIFTED as against
private respondents.
[G.R. No. L-17122. February 27, 1922.]

THE UNITED STATES, plaintiff-appellee, vs. NAG TANG

HO, defendant-appellant.

Williams & Ferrier for appellant.

Acting Attorney-General Tuason for appellee.

SYLLABUS

1. ORGANIC LAW. By the organic law of the Philippine Islands and

the Constitution of the United States, all powers are vested in the Legislature,
Executive, and Judiciary. It is the duty of the Legislature to make the law; of
the Executive; and of the Judiciary to construe the law. The Legislature has
no authority to execute or construe the law; the Executive has no authority to
make or construe the law; and the Judiciary has no power to make or execute
the law.
2. POWER. Subject to the Constitution only, the power of each
branch is supreme within its own jurisdiction, and it is for the judiciary only to
say when any Act of the Legislature is or is not constitutional.
3. THE POWER TO DELEGATE. The Legislature cannot delegate
legislative power to enact any law. If Act No. 2868 is a law unto itself and
within itself, and it does nothing more than to authorize the Governor-General
to make rules and regulations to carry it into effect, then the Legislature
created the law. There is no delegation of power and it is valid. One 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 law or a crime, the doing of
which is vested in the Governor-General, the is a delegation of legislative
power, is unconstitutional and avoid.
4. No CRIME TO SELL. After the passage of Act No. 2868, and
without any rules and regulations of the Governor-General, a dealer in rice
could sell it at any price and he would not commit a crime. There was no
legislative act which made it a crime to sell rice at any price.
5. CRIME BY PROCLAMATION. When Act No. 2868 is analyzed, it
is the violation of the Proclamation of the Governor-General which constitutes
the crime. The alleged sale was made a crime, if at all, because of the
Proclamation by the Governor-General.
6. UNCONSTITUTIONAL. In so far as Act No. 2868 undertakes to
authorize the Governor-General, in his discretion, to issue a proclamation
fixing the price and to make the sale of it in violation of the proclamation a
crime, it is unconstitutional and void.
7. CONSTITUTION. The Constitution is something solid, permanent
and substantial. It stability protects the rights, liberty, and property rights of the
rich and the poor alike, and its construction ought not to change with
emergencies or conditions.
8. PRIVATE RIGHTS. In the instant case, the law was not dealing
with Government property. It was dealing with private property and private
rights which are sacred under the Constitution.
9. PRIVATE PROPERTY. In the instant case, the rice was the
personal, private property of the defendant. The Government had not bought
it, did not claim to own it, or have any interest in it at the time the defendant
sold it to one of his customers.
10. POWER VESTED IN THE LEGISLATURE. By the organic act
and subject only to constitutional limitations, the power to legislate and enact
laws is vested exclusively in the Legislature, which is elected by a direct vote
of the people of the Philippine Islands.
11. OPINION LIMITED. This opinion is confined to the right of the
Governor-General to issue a proclamation fixing the maximum price at which
rice should be sold, and to make it a crime to sell it at a higher price, and to
that extent holds that it is an unconstitutional delegation of legislative power. It
does not decide or undertake to construe the constitutionality of any of the
remaining portions of Act No. 2868.
 DECISION

JOHNS, J :p

At its special session of 1919, the Philippine Legislature passed Act No.
2868, entitled "An Act penalizing the monopoly and hoarding of, and
speculation in palay, rice, and corn under extraordinary circumstances,
regulating the distribution and sale thereof, and authorizing the Governor-
General, with the consent of the Council of States. to issue the necessary
rules and regulations therefor, and making an appropriation for this purpose,"
the material provisions of which are as follows:
"Section 1. The Governor-General is hereby authorized, whenever, for
any cause, conditions arise resulting in an extraordinary rise in the price of
palay, rice or corn, to issue and promulgate, with the consent of the Council of
States, temporary rules and emergency measures for carrying out the
purpose of this Act. to wit:
"(a) To prevent the monopoly and hoarding of, and speculation in,
palay rice or corn.
"(b) To establish and maintain a government control of the distribution
or sale of the commodities referred to or have such distribution or sale made
by the Government itself.
"(c) To fix, from time to time, the quantities of palay, rice, or corn that a
company or individual may acquire, and the maximum sale price that the
industrial or merchant may demand.
"(d) . . .
"SEC. 2. It shall be unlawful to destroy, limit, prevent or in the other
manner obstruct the production or milling of palay, rice or corn for the purpose
of raising the prices thereof; to corner or hoard said products as defined in
section three of this Act; . . ."
Section 3 defines what shall constitute a monopoly or hoarding of palay,
rice or corn within the meaning of this Act, but does not specify the price of
rice of define any basis for fixing the price.
"SEC. 4. The violations of any of the provisions of this Act or of the
regulations, orders and decrees promulgated in accordance therewith shall be
punished by a fine of not more than five thousand pesos, or by imprisonment
for not more than two years, or both, in the discretion of the court: Provided,
That in the case of companies or corporations, the manager or administrator
shall be criminally liable.
"SEC. 7. At any time that the Governor-General, with the consent of
the Council of State, shall consider that the public interest requires the
application of the provisions of this Act, he shall so declare by proclamation,
 and any provisions of other laws inconsistent herewith shall from then on be
temporarily suspended.
"Upon the cessation of the reasons foe which such proclamation was
issued, the Governor-General, with the consent of the Council of States, shall
declare the application of this Act to have likewise terminated, and all laws
temporarily suspended by virtue of the same shall again take effect, but such
termination shall not prevent the prosecution of any proceedings or cause
begun prior to such termination, nor the filing of any proceedings for an
offense committed during the period covered by the Governor-General's
proclamation."
August 1, 1919, the Governor-General issued a proclamation fixing the
price at which rice should be sold.
August 8, 1919, a complaint was filed against the defendant, NAG Tang
Ho, charging him with the sale of rice at an excessive price as follows:
"The undersigned accuses NAG Tang Ho of a violation of Executive
Order No. 53 of the Governor-General of the Philippines, dated the 1st of
August, 1919, in relation with the provisions of sections 1, 2 and 4 Act No.
2868, committed as follows:
"That on or about the 6th day of August, 1919, in the city of Manila,
Philippine Islands, the said NAG Tang Ho. voluntarily, illegally and criminally
sold to Pedro Trinidad, one Janet of rice at the price of eighty centavos
(P.80). which is a price greater than that fixed by Executive Order No. 53 of
the Governor-General of the Philippines, dated the 1st of August, 1919, under
the authority of section 1 of Act No. 2868. Contrary to law."
Upon this charge, he was tried, found guilty and sentenced to five
months' imprisonment and to pay a fine of P500, from which he appealed to
this court, claiming that the lower court erred in finding Executive Order No.
53 of 1919, to be of any force and effect, in finding the accused guilty of the
offense charged, and in imposing the sentence.
The official records show that Act was to take effect on its approval; that
it was approved July 30,1919; that the Governor-General issued his
proclamation on the 1st of August, 1919; and that the law was first published
on the 13th of August, 1919; and that the proclamation itself was first
published on the 20th of August, 1919.
The question here involves an analysis and construction of Act No.
2868, in so far as it authorizes the Governor-General to fix the price at which
rice should be sold. It will be noted that section 1 authorizes the Governor-
General, with the consent of the Council of State, for any cause resulting in an
extraordinary rise in the price of palay, rice or corn, to issue and promulgated
temporary rules and emergency measures for carrying out the purposes of the
Act. By its very terms, the promulgation of temporary rules and emergency
measures is left to the discretion of the Governor-General. The Legislature
does not undertake reasons the Governor-General shall issue the
proclamation, but says that it may be issued " for any cause," and leaves the
question as to what is "any cause" to the discretion of the Governor-General.
The Act also says: "For any cause, conditions arise resulting in an
extraordinary rise in the price of palay, rice or corn." The Legislature does not
specify or define what is "an extraordinary rise." That is also left to the
discretion of the Governor-General. The Act also says that the Governor-
General, "with the consent of the Council of State," is authorized to issue and
promulgate "temporary rules and emergency measures for carrying out the
purposes of this Act." It does not specify or define what is a temporary rule or
an emergency measure, or how long such temporary rules or emergency
measures shall remain in force and effect, or when they shall take effect. That
is to say the Legislature itself has no in any manner specified or defined any
basis for the order, but has left it to the sole judgment and discretion of the
Governor-General to say what is or what is not "a cause," and what is or what
is not "an extraordinary rise in the price of rice," and as to what a temporary
rule or an emergency measure for the carrying out the purpose of the Act
Under this state of facts, if the law is valid and the Governor-General issues a
proclamation fixing the minimum price at which rice should be sold, any dealer
who, with or without notice, sells rice at a higher price, is a criminal. There
may not have been any cause, and the price may not have been
extraordinary, and there may not have been an emergency, but, if the
Governor-General found the existence of such facts and issued a
proclamation, and rice is sold at any higher price, the seller commits a crime.

By the organic law of the Philippine Islands and the Constitution of the
United States all power are vested in the Legislative, Executive and Judiciary.
It is the duty of the Legislature to make the law; of the Executive to execute
the law; and of the Judiciary to construe the law. The Legislature has no
authority to executive or construe the law, the Executive has no authority to
make or construe the law, and the Judiciary has no power to make or
executive the law. Subject to the Constitution only, the power of each branch
is supreme within its own jurisdiction, and it is for the Judiciary only to say
when any Act of the Legislature is or is not constitutional. Assuming, without
deciding, that the Legislature itself has the power to fix the price at which rice
is to be sold, can it delegate that power to another, and, if so, was that power
legally delegated by Act. No. 2868? In other words, does the Act delegate
legislative power to the Governor-General? By the Organic Law, all legislative
power is vested in the Legislature, and the power conferred upon the
Legislature to make laws cannot be delegated to the Governor-General, or
any one else. The Legislative cannot delegate the Legislative power to enact
any law. If Act No. 2868 is a law unto itself and within itself, and it does
nothing more than to authorize the Governor-General to make rules and
regulations to carry the law into effect, then the Legislature itself 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 a law, 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, then the Act is a delegation of legislative
power, is unconstitutional and avoid.
The Supreme Court of the United States in what is known as the
Grainer Cases (94 U. S.. 183-187; 24 L, ed., 94), first laid down the rule:
"Railroad companies are engaged in public employment affecting the
public interest and, under the decision in Mun vs. Ill., ante subject to
Legislative control as to their rates of fare and freight unless protect by their
charters.
"The Illinois statute of Mar. 23, 1874, to established reasonable
maximum rates of charges for the transportation of freights and passengers
on the different railroads of the State is not void as being repugnant to the
Constitution of the United States or to that of the State."
It was there for the first time held in substance that a railroad was a
public utility, and that, being a public utility, the State had power to establish
reasonable maximum freight and passenger rates. This was followed by the
State of Minnesota in enacting a similar law, providing for and empowering, a
railroad commission to hear and determine what was a just and reasonable
rate. The constitutionality of this law was attacked and upheld by the Supreme
Court of Minnesota in a learned and exhaustive opinion by Justice Mitchell, in
the case of State vs. Chicago, Milwaukee & St. Paul Ribs. Co. (38 Minn.,
281), in which the court held:
"Regulations of railway tariffs Conclusiveness of commission's
tariffs. Under Laws 1887, c. 10, sec. 8, the determination of the railroad
and warehouse commission as to what are equal and reasonable fares rates
for the transportation of persons and property by a railway company is
conclusive, and, in proceedings by mandamus to compel compliance with the
tariff of rates recommended and published by them, no issue can be raise or
inquiry had on that question.
"Same Constitution Delegation of power to commission. The
authority thus given to the commission to determine, in the exercise of their
discretion and judgment, what are equal and reasonable rates, is not a
delegation of legislative power."
It will be noted that the law creating the railroad commission expressly
provides
"That all charges by any common carrier for the transportation of
passengers and property shall be equal and reasonable."
 With that as a basis for the law, power is then given to the railroad
commission to investigate all the facts, to hear and determine what is a just
and reasonable rate. Even then that law does not make the violation of the
order of the commission a crime. The only remedy is a civil proceeding. It was
there held
"That the legislature itself has the power to regulate railroad charges is
now too well settled to require either argument or citation of authority.
"The difference between the power to say what the law shall be, and
the power to adopt rules and regulations, or to investigate and determine the
facts, in order to carry into effect a law already passed, is apparent. The true
distinction is between the delegation of power to make the law, which
necessarily involves a discretion as to what it shall be, and the conferring an
authority or discretion to be exercised under and in pursuance of the law.
"The legislature enacts that all freight rates and passenger fares
should be just and reasonable. It had the undoubted power to fix these rates
at whatever it deemed equal and reasonable.
"They have not delegated to the commission any authority or discretion
as to what the law shall be, which would not be allowable, but have
merely conferred upon it an authority and discretion, to be exercised in the
execution of the law, and under and in pursuance of it, which is entirely
permissible. The legislature itself has passed upon the expediency of the law,
and what it shall be. The commission is intrusted with no authority or
discretion upon these questions. It can neither make nor unmade a single
provision of law. It is merely charged with the administration of the law, and
with no other power."
The delegation of legislative power was before the Supreme Court of
Wisconsin in Doling vs Lancaster Ins. Co. (92 Wis., 63). The opinion says:
"The true distinction is between the delegation of power to make the
law, which necessarily involves a discretion as to what it shall be and
conferring authority or discretion as to its execution, to be exercised under
and in pursuance of the law. The first cannot be done; to the latter no valid
objection can be made.'
"The act, in our judgment, wholly fails to provide definitely and clearly
what the standard policy should contain so that it could be put in use as a
uniform policy required to take the place of all others, without the
determination of the insurance commissioner in respect to matters involving
the exercise of a legislative discretion that could not be delegated, and
without which the act could not possibly be put in use as an act in conformity
to which all fire insurance policies were required to be issued.
"The result of all the cases on this subject is that a law must be
complete, in all its terms and provisions, when it leaves the legislative branch
of the government, and nothing must be left to the judgment of the electors or
other appointee or delegate of the legislature, so that, in form and
 substances, it is a law in all its details in presenting, but which may be left to
take effect in future, if necessary, upon the ascertainment of any prescribed
fact or event."
The delegation of legislative power was before the Supreme Court in
United States vs. Grimed (220 U. S., 506; 55 L. ed., 563), where it was held
that the rules and regulations of the Secretary of Agriculture as to a trespass
on government land in a forest reserve were valid constitutional. The Act there
provided that the Secretary of Agriculture " . . . may make such rules and
regulations and establish such service as will insure the objects of such
reservation; namely, to regulate their occupancy and use, and to preserve the
forests thereon from destruction; and any violation of the provisions of this act
or such rules and regulations shall be punished, . . ."
The brief of the United States Solicitor-General says:
"In refusing permits to use s forest reservation for stock grazing, except
upon stated terms or in stated ways, the Secretary of Agriculture merely
asserts and enforces the proprietary right of the United States over land
which it owns. The regulations of the Secretary, therefore, is not an exercise
of legislative, or even of administrative, power; but is an ordinary and
legitimate refusal of the landowner's authorized agent to allow persons having
no right in the land to use it as they will. The right of proprietary control is
altogether different from governmental authority."
The opinion says:
"From the beginning of the government, various acts have been
passed conferring upon executive officers power to make rules and
regulations, not for the government of their departments, but for
administering the laws which did govern. None of these statutes could
confer legislative power. But when Congress had legislated and
indicated its will, it could give to those who were to act under such
general provisions power to fill up the details' by the establishment of
administrative rules and regulations, the violation of which be punished
by fine imprisonment fixed by Congress, or by penalties fixed by
Congress, or measured by the injury done.
"That 'Congress cannot delegate legislative power is a principle
universally recognized as vital to the integrity and maintenance of the
system of government ordained by the Constitution.'
"If, after the passage of the act and the promulgation the rule, the
defendants drove and grazed their sheep upon the reserve, in violation
of the regulations, they were making an unlawful use of the
government's property. In doing so they thereby made themselves liable
to the penalty imposed by Congress."
"The subject as to which the Secretary can regulate are defined.
The lands are set apart as a forest reserve. He is required to make
provision to protect them from depredations and from harmful uses. He
 is authorized 'to regulate the occupancy and use and to use to preserve
the forests from destruction.' A violation of reasonable rules regulating
the use and occupancy of the property is made a crime, not by the
Secretary, but by Congress."

The above are leading cases in the United States on the question of
delegating legislative power. It will be noted that in the "Grainer Cases," it was
held that a railroad company was a public corporation, and that a railroad was
a public utility, and that, for such reasons the Legislature had the power to fix
and determine just and reasonable rates for freight and passengers.
The Minnesota case held that, so long as the rates were just and
reasonable, the legislature could delegate the power to ascertain the facts
and determine from the facts what were just and reasonable rates, and that in
vesting the commission with such power was not a delegation of legislative
power.
The Wisconsin case was a civil action founded upon a "Wisconsin
standard policy of fire insurance," and the court held that "the act, . . . wholly
fails to provide definitely and clearly what the standard policy should contain,
so that it could be put in use as a uniform policy required to take the place of
all others, without the determination of the insurance commissioner in respect
to matters involving the exercise of a legislative discretion that could not be
delegated.''
The case of the United States Supreme Court, supra, dealt with rules
and regulations which were promulgated by the Secretary of Agriculture for
Government land in the forest reserve. These hold that the legislature only
can enact a law, and that it cannot delegate its legislative authority.
The line of cleavage between what is and what is not a delegation of
legislative power is pointed out and clearly defined. As the Supreme Court of
Wisconsin says:
"That no part of the legislative power can be delegated by the
legislature to any other department of the government, executive or
judicial, is a fundamental principle in constitutional law, essential to the
integrity and maintenance of the system of government established by
the constitution.
"Where an act is clothed with all the forms of law, and is complete
in and of itself, it may be provided that it shall become operative only
upon some certain act or event, or, in like manner, that its operation shall
be suspended.
The legislature cannot delegate its power to make a law, but it
can make a law to delegate a power to determine some fact or state of
 things upon which the law makes, or intends to make, its own action to
depend."
"All saloons in said village shall be closed at 11 o'clock P. M. each day
and remain closed until 5 o'clock on the following morning, unless by special
permission of the president."
Construing it in 136 Wis., 526 128 A. S. R., 1100, 1 the Supreme Court
of that State says:
"We regard the ordinance as void for two reasons: First, because
it attempts to confer arbitrary power upon an executive officer, and
allows him, in executing the ordinance, to make unjust and groundless
discriminations among persons similarly situated; second, because the
power to regulate saloons is a law-making power vested in the village
board, which cannot be delegated. A legislative body cannot delegate to
a mere administrative officer power to make a law, but it can make a law
with provisions that it shall go into effect or be suspended in its operation
upon the ascertainment of a fact or state of facts by an administrative of
board. In the present case the ordinance by its terms gives power to the
president to decide arbitrarily, and in the exercise of his own discretion,
when a saloon shall close. This is an attempt to vest legislative
discretion in him, and cannot be sustained."
The legal principle involved there is squarely in point here.
It must conceded that, after the passage of Act No. 2868, and before
any rules and regulations were promulgated by the Governor-General, a
dealer in rice could sell it at any price, even at a peso per "Janet," and that he
would not commit a crime, because there would be no law fixing the price of
rice, and the sale of it at any price would not be a crime. That is to say, in the
absence of a proclamation, it was not a crime to sell rice at any price. Hence,
it must follow that, if the defendant committed a crime, it was because the
Governor-General issued the proclamation. There was no act of the
Legislature making it a crime to sell rice at any price, and without the
proclamation, the sale of it at any price was not crime.
The Executive Order 1 provides"
(5) The maximum selling price of palay, rice or corn is hereby fixed, for
the time being as follows:
"In Manila
"Palay at P6.75 per sack of 1/2 kilos, or 29 centavos per Janet.
"Rice at P15 per sack of 57 1/2 kilos, or 63 centavos per Janet.
"Corn at P8 per sack of 57 1/2 kilos, or 34 centavos per Janet.
"In the provinces producing palay, rice and corn, the maximum
price shall be the Manila price less the cost of transportation from the
 source of supply and necessary handling expenses to the place of sale,
to be determined by the provincial treasures or their deputies.
"In provinces, obtaining their supplies from Manila or other
producing provinces, the maximum price shall be the authorized price at
the place of supply or the Manila price as the case may be, plus the
transportation cost, from the place of supply and the necessary handling
expenses, to the place of sale, to be determined by the provincial
treasurers or their deputies.
"(6) Provincial treasurers and their deputies are hereby directed to
communicate with, and execute all instructions emanating from the
Director of Commerce and Industry, for the most effective and proper
enforcement of the above regulations in their respective localities,"
The law says that the Governor-General may fix "the maximum sale
price that industrial or merchant may demand." The law is a general law and
not a local or special law.
The proclamation undertakes to fix one price for rice in Manila and
other and different prices in other and different provinces in the Philippines
Islands, and delegates the power to determine the other and different prices
to provincial treasurers and their deputies. Here, then, you would have a
delegation of legislative power to the Governor-General, and a delegation by
him of that power to provincial treasurers and their deputies, who "are hereby
directed to communicate with, and executive all instructions emanating from
the Director of Commerce and Industry, for the most effective and proper
enforcement of the above regulations in their respective localities." The
issuance of the proclamation by the Governor-General was the exercise of the
power delegation of a power, and was even a subdelegation of that power.
Assuming that it is valid, Act No. 2868 is a general law and does not
authorize the Governor-General to fix one price of rice in Manila and another
price in Iloilo. It only purports to authorize him fix the price of rice in the
Philippine Islands under a law, which is general and uniform, and not local or
special. Under the terms of the law, the price of rice fixed in the proclamation
must be the same all over the Islands. There cannot be one price at Manila
and another at Iloilo. Again, it is a matter of common knowledge, and of which
this court will take judicial notice, that there are many kinds of rice with
different and corresponding market values, and that there is a wide range in
the price, which varies with grade and quality. Act No. 2868 makes no
distinction in price for the grade quality of the rice, and the proclamation, upon
which the defendant was tried and convicted, fixes the selling price of rice in
Manila "at P15 per sack of 57 1/2 kilos, or 63 centavo per Janet," and is
uniform as to all grades of rice, and says nothing about grade or quality.
Again, it will be noted that the law is confined to palay, rice and corn. They are
products of the Philippine Islands. Hemp, tobacco, coconut, chickens, eggs,
and many other things are also products. Any law which singles out palay,
rice or corn from the numerous, but is a local or special law. If such a law is
valid, then by the same principle, the Governor-General could be authorized
by proclamation to fix the price of meat, eggs chickens, coconut, hemp, and
tobacco, or any other of the Islands. In the very nature of things, all of that
class of laws should be general and uniform. Otherwise, there would be an
unjust discrimination of property rights, which, under the law, must be equal
and uniform. Act No. 2868 is nothing more than a floating law, which, in the
discretion and by a proclamation of the Governor-General, makes it a floating
crime to sell rice at a price in excess of the proclamation, without regard to
grade or quality.
When Act No. 2868 is analyzed, it is the violation of the proclamation of
the Governor-General which constitutes the crime. Without that proclamation,
it was no crime to sell rice at any price. In other words, the Legislature left it to
the sole discretion of the Governor-General to say what was and what was
not "any cause" for enforcing the act, and what was and what was not "an
extraordinary rise in the price of palay, rice or corn," and under certain
undefined conditions to fix the price at which rice should be sold, without
regard to grade or quality, also to say whether a proclamation should be
issued, if so, when, and whether or not the law should be enforced, how long
it should be enforced, and when the law should be suspended. The
Legislature did not specify or define what was "any cause," or what was "an
extraordinary rise in the price of rice, palay or corn." Neither did it specify or
define the conditions upon which the proclamation should be issued. In the
absence of the proclamation no crime was committed. The alleged sale was
made a crime, if at all, because the Governor-General issued the
proclamation. The act or proclamation does not say anything about the
different grades or qualities of rice, and the defendant is charged with the
sale" of one Janet of rice at the price of eighty centavos (P0.80) which is a
price greater than fixed by Executive Order No. 53."

We are clearly of the opinion and hold that Act No. 2868 in so far as it
undertakes to authorize the Governor-General in his discretion to issue a
proclamation, fixing the price of rice, and to make the sale of rice in violation
of the proclamation a crime, is unconstitutional and void.
It may be urged that there was an extraordinary rise in the price of rice
and profiteering, which worked a severe hardship, on the poorer classes, and
that an emergency existed, but the question here presented is the
constitutionality of a particular portion of a statute, and none of such matters is
an argument for, or against, its constitutionality.
 The Constitution is something solid, permanent and substantial. Its
stability protects the life, liberty and property rights of the rich and the poor
alike, and that protection ought not to change with the wind or any emergency
condition. The fundamental question involved in this case is the right of the
people of the Philippine Islands to be and live under a republican form of
government. We make the board statement that no state or nation, living
under a republican form of government, under the terms and conditions
specified in Act No. 2868, has ever enacted a law delegating the power to any
one, to fix the price at which rice should be sold. That power can never be
delegated under a republican form of government.
In the fixing of the price at which the defendant should sell his rice, the
law was not dealing with government property. It was dealing with private
property and private rights, which are sacred under the Constitution. If this law
should be sustained, upon the same principle and for the same reason, the
Legislature could authorize the Governor-General to fix the price of every
product or commodity in the Philippine Islands, and empower him to make it a
crime to sell any product at any other or different price.
It may be said that this was a war measure, and that for such reason
the provision of the Constitution should be suspended. But the stubborn fact
remains that at all times the judicial power was in full force and effect, and that
while that power was in force and effect, such a provision of the Constitution
could not be, and was not, suspended even in times of war. It may be claimed
that during the war, the United States Government undertook to, and did, fix
the price at which wheat and flour should be bought and sold, and that is true.
There, the United States had declared war, and at the time was at war with
other nations, and it was a war measure, but it is also true that in doing so,
and as a part of the same act, the United States commandeered all the wheat
and flour, and took possession of it, either or constructive, and the
government itself became the owner of the wheat and flour, and fixed the
price to be paid for it. That is not case. Here, the rice sold was the personal
and private property of the defendant, who sold it to one of his customers. The
government had not bought and did not claim to own the rice, or have any
interest in it. and at the time of the alleged sale, it was the personal, private
property of the defendant. It may be that the law was passed in the interest of
the public, but the members of this court have taken a solemn oath to uphold
and defend the Constitution, and it ought not to be construed to meet the
changing winds or emergency conditions. Again we say that no state or nation
under a republican form of government ever enacted a law authorizing any
executive, under the conditions stated, to fix the price at which a private
person would sell his own rice, and make the broad statement that no
decision of any court, on principle or by analogy. will ever be found which
sustains the constitutionality of that particular portion of Act No. 2868 here in
 question. By the terms of the Organic Act, subject only to constitutional
limitations, the power Legislature, which is elated by a direct vote of the
people of the Philippine Island. As to the question here involved, the authority
of the Governor-General to fix the maximum price at which palay, rice and
corn may be sold in the manner and under the conditions stated is a
delegation of legislative power in violation of the organic law.
This opinion is confined to the particular question here involved, which
is the right of the Governor-General, upon the terms and conditions stated in
the Act, to fix the price of rice and make it a crime to sell it at a higher price,
and which holds that portion of the Act unconstitutional. It does not decide or
undertake to construe the constitutionality of any of the remaining of the Act.
The judgment of the lower court is reversed, and the defendant
discharged. So ordered.
[G.R. No. 74457. March 20, 1987.]

RESTITUTO YNOT, petitioner, vs. INTERMEDIATE APPELLATE COU

RT, THE STATION COMMANDER, INTEGRATED NATIONAL
POLICE, BAROTAC NUEVO, ILOILO and THE REGIONAL
DIRECTOR, BUREAU OF ANIMAL INDUSTRY, REGION IV, ILOILO
CITY, respondents.

Ramon A. Gonzales for petitioner.

DECISION

CRUZ, J : p

The essence of due process is distilled in the immortal cry of Themistocles to

Alcibiades: "Strike but hear me first!'" It is this cry that the petitioner in effect
repeats here as he challenges the constitutionality of Executive Order No. 626-
A.Cdpr

The said executive order reads in full as follows:

"WHEREAS, the President has given orders prohibiting the
interprovincial movement of carabaos and the slaughtering of carabaos
not complying with the requirements of Executive Order No.
626 particularly with respect to age;
 "WHEREAS, it has been observed that despite such orders the violators
still manage to circumvent the prohibition against interprovincial
movement of carabaos by transporting carabeef instead; and.
"WHEREAS, in order to achieve the purposes and objectives
of Executive Order No. 626 and the prohibition against interprovincial
movement of carabaos, it is necessary to strengthen the said Executive
Order and provide for the disposition of the carabaos and carabeef
subject of the violation;.
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the Constitution, do
hereby promulgate the following:
"SECTION 1. Executive Order No. 626 is hereby amended such that
henceforth, no carabao regardless of age, sex, physical condition or
purpose and no carabeef shall be transported from one province to
another. The carabao or carabeef transported in violation of this
Executive Order as amended shall be subject to confiscation and
forfeiture by the government, to be distributed to charitable institutions
and other similar institutions as the Chairman of the National Meat
Inspection Commission may see fit, in the case of carabeef, and to
deserving farmers through dispersal as the Director of Animal Industry
may see fit, in the case of carabaos.
"SECTION 2. This Executive Order shall take effect immediately.
"Done in the City of Manila, this 25th day of October, in the year of Our
Lord, nineteen hundred and eighty.
(SGD.) FERDINAND E. MARCOS
President
Republic of the Philippines"
The petitioner had transported six carabaos in a pump boat from Masbate to
Iloilo on January 13, 1984, when they were confiscated by the police station
commander of Barotac Nuevo, Iloilo, for violation of the above measure. 1 The
petitioner sued for recovery, and the Regional Trial Court of Iloilo City issued a
writ of replevin upon his filing of a supersedeas bond of P12,000.00. After
considering the merits of the case, the court sustained the confiscation of the
carabaos and, since they could no longer be produced, ordered the confiscation
of the bond. The court also declined to rule on the constitutionality of the
executive order, as raised by the petitioner, for lack of authority and also for its
presumed validity. 2
The petitioner appealed the decision to
the Intermediate Appellate Court, * 3 which upheld the trial court, ** and he has
now come before us in this petition for review on certiorari. prcd
The thrust of his petition is that the executive order is unconstitutional insofar as
it authorizes outright confiscation of the carabao or carabeef being transported
across provincial boundaries. His claim is that the penalty is invalid because it is
imposed without according the owner a right to be heard before a competent and
impartialcourt as guaranteed by due process. He complains that the measure
should not have been presumed, and so sustained, as constitutional. There is
also a challenge to the improper exercise of the legislative power by the former
President under Amendment No. 6 of the 1973 Constitution. 4
While also involving the same executive order, the case of Pesigan v.
Angeles 5 is not applicable here. The question raised there was the necessity of
the previous publication of the measure in the Official Gazette before it could be
considered enforceable. We imposed the requirement then on the basis of due
process of law. In doing so, however, this Court did not, as contended by the
Solicitor General, impliedly affirm the constitutionality of Executive Order No.
626-A. That is an entirely different matter.
This Court has declared that while lower courts should observe a becoming
modesty in examining constitutional questions, they are nonetheless not
prevented from resolving the same whenever warranted, subject only to review
by the highest tribunal. 6 We have jurisdiction under the Constitution to "review,
revise, reverse, modify or affirm on appeal or certiorari, as the law or rules
of court may provide," final judgments and orders of lower courts in, among
others, all cases involving the constitutionality of certain measures. 7 This simply
means that the resolution of such cases may be made in the first instance by
these lower courts.
And while it is true that laws are presumed to be constitutional, that presumption
is not by any means conclusive and in fact may be rebutted. Indeed, if there be a
clear showing of their invalidity, and of the need to declare them so, then "will be
the time to make the hammer fall, and heavily," 8 to recall Justice Laurel's
trenchant warning. Stated otherwise, courts should not follow the path of least
resistance by simply presuming the constitutionality of a law when it is
questioned. On the contrary, they should probe the issue more deeply, to relieve
the abscess, paraphrasing another distinguished jurist, 9 and so heal the wound
or excise the affliction.
Judicial power authorizes this; and when the exercise is demanded, there should
be no shirking of the task for fear of retaliation, or loss of favor, or popular
censure, or any other similar inhibition unworthy of the bench, especially
this Court.LLjur

The challenged measure is denominated an executive order but it is really

presidential decree, promulgating a new rule instead of merely implementing an
existing law. It was issued by President Marcos not for the purpose of taking care
that the laws were faithfully executed but in the exercise of his legislative
authority under Amendment No. 6. It was provided thereunder that whenever in
his judgment there existed a grave emergency or a threat or imminence thereof
or whenever the legislature failed or was unable to act adequately on any matter
that in his judgment required immediate action, he could, in order to meet the
exigency, issue decrees, orders or letters of instruction that were to have the
force and effect of law. As there is no showing of any exigency to justify the
exercise of that extraordinary power then, the petitioner has reason, indeed, to
question the validity of the executive order. Nevertheless, since the determination
of the grounds was supposed to have been made by the President "in his
judgment," a phrase that will lead to protracted discussion not really necessary at
this time, we reserve resolution of this matter until a more appropriate occasion.
For the nonce, we confine ourselves to the more fundamental question of due
process.
It is part of the art of constitution-making that the provisions of the charter be cast
in precise and unmistakable language to avoid controversies that might arise on
their correct interpretation. That is the ideal. In the case of the due process
clause, however, this rule was deliberately not followed and the wording was
purposely kept ambiguous. In fact, a proposal to delineate it more clearly was
submitted in the Constitutional Convention of 1934, but it was rejected by
Delegate Jose P. Laurel, Chairman of the Committee on the Pill of Rights, who
forcefully argued against it. He was sustained by the body. 10
The due process clause was kept intentionally vague so it would remain also
conveniently resilient. This was felt necessary because due process is not, like
some provisions of the fundamental law, an "iron rule" laying down an implacable
and immutable command for all seasons and all persons. Flexibility must be the
best virtue of the guaranty. The very elasticity of the due process clause was
meant to make it adapt easily to every situation, enlarging or constricting its
protection as the changing times and circumstances may require.
Aware of this, the courts have also hesitated to adopt their own specific
description of due process lest they confine themselves in a legal straitjacket that
will deprive them of the elbow room they may need to vary the meaning of the
clause whenever indicated. Instead, they have preferred to leave the import of
the protection open-ended, as it were, to be "gradually ascertained by the
process of inclusion and exclusion in the course of the decision of cases as they
arise." 11 Thus, Justice Felix Frankfurter of the U.S. Supreme Court, for example,
would go no farther than to define due process - and in so doing sums it all up
as nothing more and nothing less than "the embodiment of the sporting idea of
fair play." 12
When the barons of England extracted from their sovereign liege the reluctant
promise that that Crown would thenceforth not proceed against the life, liberty or
property of any of its subjects except by the lawful judgment of his peers or the
law of the land, they thereby won for themselves and their progeny that splendid
guaranty of fairness that is now the hallmark of the free society. The solemn vow
that King John made at Runnymede in 1215 has since then resounded through
the ages, as a ringing reminder to all rulers, benevolent or base, that every
person, when confronted by the stern visage of the law, is entitled to have his say
in a fair and open hearing of his cause. prLL

The closed mind has no place in the open society. It is part of the sporting idea of
fair play to hear "the other side" before an opinion is formed or a decision is
made by those who sit in judgment. Obviously, one side is only one-half of the
question; the other half must also be considered if an impartial verdict is to be
reached based on an informed appreciation of the issues in contention. It is
indispensable that the two sides complement each other, as unto the bow the
arrow, in leading to the correct ruling after examination of the problem not from
one or the other perspective only but in its totality. A judgment based on less that
this full appraisal, on the pretext that a hearing is unnecessary or useless, is
tainted with the vice of bias or intolerance or ignorance, or worst of all, in
repressive regimes, the insolence of power.
The minimum requirements of due process are notice and hearing 13 which,
generally speaking, may not be dispensed with because they are intended as a
safeguard against official arbitrariness. It is a gratifying commentary on our
judicial system that the jurisprudence of this country is rich with applications of
this guaranty as proof of our fealty to the rule of law and the ancient rudiments of
fair play. We have consistently declared that every person, faced by the
awesome power of the State, is entitled to "the law of the land," which Daniel
Webster described almost two hundred years ago in the famous Dartmouth
College Case, 14 as "the law which hears before it condemns, which proceeds
upon inquiry and renders judgment only after trial." It has to be so if the rights of
every person are to be secured beyond the reach of officials who, out of
mistaken zeal or plain arrogance, would degrade the due process clause into a
worn and empty catchword.
This is not to say that notice and hearing are imperative in every case for, to be
sure, there are a number of admitted exceptions. The conclusive presumption,
for example, bars the admission of contrary evidence as long as such
presumption is based on human experience or there is a rational connection
between the fact proved and the fact ultimately presumed therefrom. 15 There are
instances when the need for expeditious action will justify omission of these
requisites, as in the summary abatement of a nuisance per se, like a mad dog on
the loose, which may be killed on sight because of the immediate danger it poses
to the safety and lives of the people. Pornographic materials, contaminated meat
and narcotic drugs are inherently pernicious and may be summarily destroyed.
The passport of a person sought for a criminal offense may be cancelled without
hearing, to compel his return to the country he has fled. 16 Filthy restaurants may
be summarily padlocked in the interest of the public health and bawdy houses to
protect the public morals. 17 In such instances, previous judicial hearing may be
omitted without violation of due process in view of the nature of the property
involved or the urgency of the need to protect the general welfare from a clear
and present danger. cdll

The protection of the general welfare is the particular function of the police power
which both restraints and is restrained by due process. The police power is
simply defined as the power inherent in the State to regulate liberty and property
for the promotion of the general welfare. 18 By reason of its function, it extends to
all the great public needs and is described as the most pervasive, the least
limitable and the most demanding of the three inherent powers of the State, far
outpacing taxation and eminent domain. The individual, as a member of society,
is hemmed in by the police power, which affects him even before he is born and
follows him still after he is dead from the womb to beyond the tomb in
practically everything he does or owns. Its reach is virtually limitless. It is a
ubiquitous and often unwelcome intrusion. Even so, as long as the activity or the
property has some relevance to the public welfare, its regulation under the police
power is not only proper but necessary. And the justification is found in the
venerable Latin maxims, Salus populi est suprema lex and Sic utere tuo ut
alienum non laedas, which call for the subordination of individual interests to the
benefit of the greater number.
It is this power that is now invoked by the government to justify Executive Order
No. 626-A, amending the basic rule in Executive Order No. 626, prohibiting the
slaughter of carabaos except under certain conditions. The original measure was
issued for the reason, as expressed in one of its Whereases, that "present
conditions demand that the carabaos and the buffaloes be conserved for the
benefit of the small farmers who rely on them for energy needs." We affirm at the
outset the need for such a measure. In the face of the worsening energy crisis
and the increased dependence of our farms on these traditional beasts of
burden, the government would have been remiss, indeed, if it had not taken
steps to protect and preserve them.
A similar prohibition was challenged in United States v. Toribio, 19 where a law
regulating the registration, branding and slaughter of large cattle was claimed to
be a deprivation of property without due process of law. The defendant had been
convicted thereunder for having slaughtered his own carabao without the
required permit, and he appealed to the Supreme Court. The conviction was
affirmed. The law was sustained as a valid police measure to prevent the
indiscriminate killing of carabaos, which were then badly needed by farmers. An
epidemic had stricken many of these animals and the reduction of their number
had resulted in an acute decline in agricultural output, which in turn had caused
an incipient famine. Furthermore, because of the scarcity of the animals and the
consequent increase in their price, cattle-rustling had spread alarmingly,
necessitating more effective measures for the registration and branding of these
animals. The Court held that the questioned statute was a valid exercise of the
police power and declared in part as follows:
"To justify the State in thus interposing its authority in behalf of the
public, it must appear, first, that the interests of the public generally, as
distinguished from those of a particular class, require such interference;
and second, that the means are reasonably necessary for the
accomplishment of the purpose, and not unduly oppressive upon
individuals. . . .
"From what has been said, we think it is clear that the enactment of the
provisions of the statute under consideration was required by `the
interests of the public generally, as distinguished from those of a
particular class' and that the prohibition of the slaughter of carabaos for
human consumption, so long as these animals are fit for agricultural
work or draft purposes was a `reasonably necessary' limitation on
private ownership, to protect the community from the loss of the services
of such animals by their slaughter by improvident owners, tempted either
by greed of momentary gain, or by a desire to enjoy the luxury of animal
food, even when by so doing the productive power of the community
may be measurably and dangerously affected."
In the light of the tests mentioned above, we hold with the Toribio Case that the
carabao, as the poor man's tractor, so to speak, has a direct relevance to the
public welfare and so is a lawful subject of Executive Order No. 626. The method
chosen in the basic measure is also reasonably necessary for the purpose
sought to be achieved and not unduly oppressive upon individuals, again
following the above-cited doctrine. There is no doubt that by banning the
slaughter of these animals except where they are at least seven years old if male
and eleven years old if female upon issuance of the necessary permit, the
executive order will be conserving those still fit for farm work or breeding and
preventing their improvident depletion. llcd

But while conceding that the amendatory measure has the same lawful subject
as the original executive order, we cannot say with equal certainty that it
complies with the second requirement, viz., that there be a lawful method. We
note that to strengthen the original measure, Executive Order No. 626-A imposes
an absolute ban not on the slaughter of the carabaos but on their movement,
providing that "no carabao regardless of age, sex, physical condition or purpose
(sic) and no carabeef shall be transported from one province to another." The
object of the prohibition escapes us. The reasonable connection between the
means employed and the purpose sought to be achieved by the questioned
measure is missing.
We do not see how the prohibition of the interprovincial transport of carabaos can
prevent their indiscriminate slaughter, considering that they can be killed
anywhere, with no less difficulty in one province than in another. Obviously,
retaining the carabaos in one province will not prevent their slaughter there, any
more than moving them to another province will make it easier to kill them there.
As for the carabeef, the prohibition is made to apply to it as otherwise, so says
executive order, it could be easily circumvented by simply killing the animal.
Perhaps so. However, if the movement of the live animals for the purpose of
preventing their slaughter cannot be prohibited, it should follow that there is no
reason either to prohibit their transfer as, not to be flippant, dead meat.
Even if a reasonable relation between the means and the end were to be
assumed, we would still have to reckon with the sanction that the measure
applies for violation of the prohibition. The penalty is outright confiscation of the
carabao or carabeef being transported, to be meted out by the executive
authorities, usually the police only. In the Toribio Case, the statute was sustained
because the penalty prescribed was fine and imprisonment, to be imposed by
the court after trial and conviction of the accused. Under the challenged
measure, significantly, no such trial is prescribed, and the property being
transported is immediately impounded by the police and declared, by the
measure itself, as forfeited to the government.

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

The strength of democracy lies not in the rights it guarantees but in the courage
of the people to invoke them whenever they are ignored or violated. Rights are
but weapons on the wall if, like expensive tapestry, all they do is embellish and
impress. Rights, as weapons, must be a promise of protection. They become
truly meaningful, and fulfill the role assigned to them in the free society, if they
are kept bright and sharp with use by those who are not afraid to assert them.
WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional.
Except as affirmed above, the decision of the Court of Appeals is reversed.
Thesupersedeas bond is cancelled and the amount thereof is ordered restored to
the petitioner. No costs.
[G.R. No. 74457. March 20, 1987.]

RESTITUTO YNOT, petitioner, vs. INTERMEDIATE APPELLATE COU

RT, THE STATION COMMANDER, INTEGRATED NATIONAL
POLICE, BAROTAC NUEVO, ILOILO and THE REGIONAL
DIRECTOR, BUREAU OF ANIMAL INDUSTRY, REGION IV, ILOILO
CITY, respondents.

Ramon A. Gonzales for petitioner.

DECISION
CRUZ, J : p

The essence of due process is distilled in the immortal cry of Themistocles to

Alcibiades: "Strike but hear me first!'" It is this cry that the petitioner in effect
repeats here as he challenges the constitutionality of Executive Order No. 626-
A.Cdpr

The said executive order reads in full as follows:

"WHEREAS, the President has given orders prohibiting the
interprovincial movement of carabaos and the slaughtering of carabaos
not complying with the requirements of Executive Order No.
626 particularly with respect to age;
"WHEREAS, it has been observed that despite such orders the violators
still manage to circumvent the prohibition against interprovincial
movement of carabaos by transporting carabeef instead; and.
"WHEREAS, in order to achieve the purposes and objectives
of Executive Order No. 626 and the prohibition against interprovincial
movement of carabaos, it is necessary to strengthen the said Executive
Order and provide for the disposition of the carabaos and carabeef
subject of the violation;.
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the Constitution, do
hereby promulgate the following:
"SECTION 1. Executive Order No. 626 is hereby amended such that
henceforth, no carabao regardless of age, sex, physical condition or
purpose and no carabeef shall be transported from one province to
another. The carabao or carabeef transported in violation of this
Executive Order as amended shall be subject to confiscation and
forfeiture by the government, to be distributed to charitable institutions
and other similar institutions as the Chairman of the National Meat
Inspection Commission may see fit, in the case of carabeef, and to
deserving farmers through dispersal as the Director of Animal Industry
may see fit, in the case of carabaos.
"SECTION 2. This Executive Order shall take effect immediately.
"Done in the City of Manila, this 25th day of October, in the year of Our
Lord, nineteen hundred and eighty.
(SGD.) FERDINAND E. MARCOS
President
Republic of the Philippines"
The petitioner had transported six carabaos in a pump boat from Masbate to
Iloilo on January 13, 1984, when they were confiscated by the police station
commander of Barotac Nuevo, Iloilo, for violation of the above measure. 1 The
petitioner sued for recovery, and the Regional Trial Court of Iloilo City issued a
writ of replevin upon his filing of a supersedeas bond of P12,000.00. After
considering the merits of the case, the court sustained the confiscation of the
carabaos and, since they could no longer be produced, ordered the confiscation
of the bond. The court also declined to rule on the constitutionality of the
executive order, as raised by the petitioner, for lack of authority and also for its
presumed validity. 2
The petitioner appealed the decision to
the Intermediate Appellate Court, * 3 which upheld the trial court, ** and he has
now come before us in this petition for review on certiorari.prcd

The thrust of his petition is that the executive order is unconstitutional insofar as
it authorizes outright confiscation of the carabao or carabeef being transported
across provincial boundaries. His claim is that the penalty is invalid because it is
imposed without according the owner a right to be heard before a competent and
impartialcourt as guaranteed by due process. He complains that the measure
should not have been presumed, and so sustained, as constitutional. There is
also a challenge to the improper exercise of the legislative power by the former
President under Amendment No. 6 of the 1973 Constitution. 4
While also involving the same executive order, the case of Pesigan v.
Angeles 5 is not applicable here. The question raised there was the necessity of
the previous publication of the measure in the Official Gazette before it could be
considered enforceable. We imposed the requirement then on the basis of due
process of law. In doing so, however, this Court did not, as contended by the
Solicitor General, impliedly affirm the constitutionality of Executive Order No.
626-A. That is an entirely different matter.
This Court has declared that while lower courts should observe a becoming
modesty in examining constitutional questions, they are nonetheless not
prevented from resolving the same whenever warranted, subject only to review
by the highest tribunal. 6 We have jurisdiction under the Constitution to "review,
revise, reverse, modify or affirm on appeal or certiorari, as the law or rules
of court may provide," final judgments and orders of lower courts in, among
others, all cases involving the constitutionality of certain measures. 7 This simply
means that the resolution of such cases may be made in the first instance by
these lower courts.
And while it is true that laws are presumed to be constitutional, that presumption
is not by any means conclusive and in fact may be rebutted. Indeed, if there be a
clear showing of their invalidity, and of the need to declare them so, then "will be
the time to make the hammer fall, and heavily," 8 to recall Justice Laurel's
trenchant warning. Stated otherwise, courts should not follow the path of least
resistance by simply presuming the constitutionality of a law when it is
questioned. On the contrary, they should probe the issue more deeply, to relieve
the abscess, paraphrasing another distinguished jurist, 9 and so heal the wound
or excise the affliction.
Judicial power authorizes this; and when the exercise is demanded, there should
be no shirking of the task for fear of retaliation, or loss of favor, or popular
censure, or any other similar inhibition unworthy of the bench, especially
this Court.LLjur

The challenged measure is denominated an executive order but it is really

presidential decree, promulgating a new rule instead of merely implementing an
existing law. It was issued by President Marcos not for the purpose of taking care
that the laws were faithfully executed but in the exercise of his legislative
authority under Amendment No. 6. It was provided thereunder that whenever in
his judgment there existed a grave emergency or a threat or imminence thereof
or whenever the legislature failed or was unable to act adequately on any matter
that in his judgment required immediate action, he could, in order to meet the
exigency, issue decrees, orders or letters of instruction that were to have the
force and effect of law. As there is no showing of any exigency to justify the
exercise of that extraordinary power then, the petitioner has reason, indeed, to
question the validity of the executive order. Nevertheless, since the determination
of the grounds was supposed to have been made by the President "in his
judgment," a phrase that will lead to protracted discussion not really necessary at
this time, we reserve resolution of this matter until a more appropriate occasion.
For the nonce, we confine ourselves to the more fundamental question of due
process.
It is part of the art of constitution-making that the provisions of the charter be cast
in precise and unmistakable language to avoid controversies that might arise on
their correct interpretation. That is the ideal. In the case of the due process
clause, however, this rule was deliberately not followed and the wording was
purposely kept ambiguous. In fact, a proposal to delineate it more clearly was
submitted in the Constitutional Convention of 1934, but it was rejected by
Delegate Jose P. Laurel, Chairman of the Committee on the Pill of Rights, who
forcefully argued against it. He was sustained by the body. 10
The due process clause was kept intentionally vague so it would remain also
conveniently resilient. This was felt necessary because due process is not, like
some provisions of the fundamental law, an "iron rule" laying down an implacable
and immutable command for all seasons and all persons. Flexibility must be the
best virtue of the guaranty. The very elasticity of the due process clause was
meant to make it adapt easily to every situation, enlarging or constricting its
protection as the changing times and circumstances may require.
Aware of this, the courts have also hesitated to adopt their own specific
description of due process lest they confine themselves in a legal straitjacket that
will deprive them of the elbow room they may need to vary the meaning of the
clause whenever indicated. Instead, they have preferred to leave the import of
the protection open-ended, as it were, to be "gradually ascertained by the
process of inclusion and exclusion in the course of the decision of cases as they
arise." 11 Thus, Justice Felix Frankfurter of the U.S. Supreme Court, for example,
would go no farther than to define due process - and in so doing sums it all up
as nothing more and nothing less than "the embodiment of the sporting idea of
fair play." 12
When the barons of England extracted from their sovereign liege the reluctant
promise that that Crown would thenceforth not proceed against the life, liberty or
property of any of its subjects except by the lawful judgment of his peers or the
law of the land, they thereby won for themselves and their progeny that splendid
guaranty of fairness that is now the hallmark of the free society. The solemn vow
that King John made at Runnymede in 1215 has since then resounded through
the ages, as a ringing reminder to all rulers, benevolent or base, that every
person, when confronted by the stern visage of the law, is entitled to have his say
in a fair and open hearing of his cause. prLL

The closed mind has no place in the open society. It is part of the sporting idea of
fair play to hear "the other side" before an opinion is formed or a decision is
made by those who sit in judgment. Obviously, one side is only one-half of the
question; the other half must also be considered if an impartial verdict is to be
reached based on an informed appreciation of the issues in contention. It is
indispensable that the two sides complement each other, as unto the bow the
arrow, in leading to the correct ruling after examination of the problem not from
one or the other perspective only but in its totality. A judgment based on less that
this full appraisal, on the pretext that a hearing is unnecessary or useless, is
tainted with the vice of bias or intolerance or ignorance, or worst of all, in
repressive regimes, the insolence of power.
The minimum requirements of due process are notice and hearing 13 which,
generally speaking, may not be dispensed with because they are intended as a
safeguard against official arbitrariness. It is a gratifying commentary on our
judicial system that the jurisprudence of this country is rich with applications of
this guaranty as proof of our fealty to the rule of law and the ancient rudiments of
fair play. We have consistently declared that every person, faced by the
awesome power of the State, is entitled to "the law of the land," which Daniel
Webster described almost two hundred years ago in the famous Dartmouth
College Case, 14 as "the law which hears before it condemns, which proceeds
upon inquiry and renders judgment only after trial." It has to be so if the rights of
every person are to be secured beyond the reach of officials who, out of
mistaken zeal or plain arrogance, would degrade the due process clause into a
worn and empty catchword.
This is not to say that notice and hearing are imperative in every case for, to be
sure, there are a number of admitted exceptions. The conclusive presumption,
for example, bars the admission of contrary evidence as long as such
presumption is based on human experience or there is a rational connection
between the fact proved and the fact ultimately presumed therefrom. 15 There are
instances when the need for expeditious action will justify omission of these
requisites, as in the summary abatement of a nuisance per se, like a mad dog on
the loose, which may be killed on sight because of the immediate danger it poses
to the safety and lives of the people. Pornographic materials, contaminated meat
and narcotic drugs are inherently pernicious and may be summarily destroyed.
The passport of a person sought for a criminal offense may be cancelled without
hearing, to compel his return to the country he has fled. 16 Filthy restaurants may
be summarily padlocked in the interest of the public health and bawdy houses to
protect the public morals. 17 In such instances, previous judicial hearing may be
omitted without violation of due process in view of the nature of the property
involved or the urgency of the need to protect the general welfare from a clear
and present danger. cdll

The protection of the general welfare is the particular function of the police power
which both restraints and is restrained by due process. The police power is
simply defined as the power inherent in the State to regulate liberty and property
for the promotion of the general welfare. 18 By reason of its function, it extends to
all the great public needs and is described as the most pervasive, the least
limitable and the most demanding of the three inherent powers of the State, far
outpacing taxation and eminent domain. The individual, as a member of society,
is hemmed in by the police power, which affects him even before he is born and
follows him still after he is dead from the womb to beyond the tomb in
practically everything he does or owns. Its reach is virtually limitless. It is a
ubiquitous and often unwelcome intrusion. Even so, as long as the activity or the
property has some relevance to the public welfare, its regulation under the police
power is not only proper but necessary. And the justification is found in the
venerable Latin maxims, Salus populi est suprema lex and Sic utere tuo ut
alienum non laedas, which call for the subordination of individual interests to the
benefit of the greater number.
It is this power that is now invoked by the government to justify Executive Order
No. 626-A, amending the basic rule in Executive Order No. 626, prohibiting the
slaughter of carabaos except under certain conditions. The original measure was
issued for the reason, as expressed in one of its Whereases, that "present
conditions demand that the carabaos and the buffaloes be conserved for the
benefit of the small farmers who rely on them for energy needs." We affirm at the
outset the need for such a measure. In the face of the worsening energy crisis
and the increased dependence of our farms on these traditional beasts of
burden, the government would have been remiss, indeed, if it had not taken
steps to protect and preserve them.
A similar prohibition was challenged in United States v. Toribio, 19 where a law
regulating the registration, branding and slaughter of large cattle was claimed to
be a deprivation of property without due process of law. The defendant had been
convicted thereunder for having slaughtered his own carabao without the
required permit, and he appealed to the Supreme Court. The conviction was
affirmed. The law was sustained as a valid police measure to prevent the
indiscriminate killing of carabaos, which were then badly needed by farmers. An
epidemic had stricken many of these animals and the reduction of their number
had resulted in an acute decline in agricultural output, which in turn had caused
an incipient famine. Furthermore, because of the scarcity of the animals and the
consequent increase in their price, cattle-rustling had spread alarmingly,
necessitating more effective measures for the registration and branding of these
animals. The Court held that the questioned statute was a valid exercise of the
police power and declared in part as follows:
"To justify the State in thus interposing its authority in behalf of the
public, it must appear, first, that the interests of the public generally, as
distinguished from those of a particular class, require such interference;
and second, that the means are reasonably necessary for the
accomplishment of the purpose, and not unduly oppressive upon
individuals. . . .
"From what has been said, we think it is clear that the enactment of the
provisions of the statute under consideration was required by `the
interests of the public generally, as distinguished from those of a
particular class' and that the prohibition of the slaughter of carabaos for
human consumption, so long as these animals are fit for agricultural
work or draft purposes was a `reasonably necessary' limitation on
private ownership, to protect the community from the loss of the services
of such animals by their slaughter by improvident owners, tempted either
by greed of momentary gain, or by a desire to enjoy the luxury of animal
food, even when by so doing the productive power of the community
may be measurably and dangerously affected."
In the light of the tests mentioned above, we hold with the Toribio Case that the
carabao, as the poor man's tractor, so to speak, has a direct relevance to the
public welfare and so is a lawful subject of Executive Order No. 626. The method
chosen in the basic measure is also reasonably necessary for the purpose
sought to be achieved and not unduly oppressive upon individuals, again
following the above-cited doctrine. There is no doubt that by banning the
slaughter of these animals except where they are at least seven years old if male
and eleven years old if female upon issuance of the necessary permit, the
executive order will be conserving those still fit for farm work or breeding and
preventing their improvident depletion. llcd

But while conceding that the amendatory measure has the same lawful subject
as the original executive order, we cannot say with equal certainty that it
complies with the second requirement, viz., that there be a lawful method. We
note that to strengthen the original measure, Executive Order No. 626-A imposes
an absolute ban not on the slaughter of the carabaos but on their movement,
providing that "no carabao regardless of age, sex, physical condition or purpose
(sic) and no carabeef shall be transported from one province to another." The
object of the prohibition escapes us. The reasonable connection between the
means employed and the purpose sought to be achieved by the questioned
measure is missing.
We do not see how the prohibition of the interprovincial transport of carabaos can
prevent their indiscriminate slaughter, considering that they can be killed
anywhere, with no less difficulty in one province than in another. Obviously,
retaining the carabaos in one province will not prevent their slaughter there, any
more than moving them to another province will make it easier to kill them there.
As for the carabeef, the prohibition is made to apply to it as otherwise, so says
executive order, it could be easily circumvented by simply killing the animal.
Perhaps so. However, if the movement of the live animals for the purpose of
preventing their slaughter cannot be prohibited, it should follow that there is no
reason either to prohibit their transfer as, not to be flippant, dead meat.
Even if a reasonable relation between the means and the end were to be
assumed, we would still have to reckon with the sanction that the measure
applies for violation of the prohibition. The penalty is outright confiscation of the
carabao or carabeef being transported, to be meted out by the executive
authorities, usually the police only. In the Toribio Case, the statute was sustained
because the penalty prescribed was fine and imprisonment, to be imposed by
the court after trial and conviction of the accused. Under the challenged
measure, significantly, no such trial is prescribed, and the property being
transported is immediately impounded by the police and declared, by the
measure itself, as forfeited to the government.

In the instant case, the carabaos were arbitrarily confiscated by the police station
commander, were returned to the petitioner only after he had filed a complaint for
recovery and given a supersedeas bond of P12,000.00, which was ordered
confiscated upon his failure to produce the carabaos when ordered by the
trial court. The executive order defined the prohibition, convicted the petitioner
and immediately imposed punishment, which was carried out forthright. The
measure struck at once and pounced upon the petitioner without giving him a
chance to be heard, thus denying him the centuries-old guaranty of elementary
fair play.
It has already been remarked that there are occasions when notice and hearing
may be validly dispensed with notwithstanding the usual requirement for these
minimum guarantees of due process. It is also conceded that summary action
may be validly taken in administrative proceedings as procedural due process is
not necessarily judicial only. 20 In the exceptional cases accepted, however, there
is a justification for the omission of the right to a previous hearing, to wit,
the immediacy of the problem sought to be corrected and the urgency of the
need to correct it.
cdphil

In the case before us, there was no such pressure of time or action calling for the
petitioner's peremptory treatment. The properties involved were not even
inimical per se as to require their instant destruction. There certainly was no
reason why the offense prohibited by the executive order should not have been
proved first in a courtof justice, with the accused being accorded all the rights
safeguarded to him under the Constitution. Considering that, as we held in
Pesigan v. Angeles, 21 Executive Order No. 626-A is penal in nature, the violation
thereof should have been pronounced not by the police only but by a court of
justice, which alone would have had the authority to impose the prescribed
penalty, and only after trial and conviction of the accused.
We also mark, on top of all this, the questionable manner of the disposition of the
confiscated property as prescribed in the questioned executive order. It is there
authorized that the seized property shall "be distributed to charitable institutions
and other similar institutions as the Chairman of the National Meat Inspection
Commission may see fit, in the case of carabeef, and to deserving farmers
through dispersal as the Director of Animal Industry may see fit, in the case of
carabaos." (Emphasis supplied.) The phrase "may see fit" is an extremely
generous and dangerous condition, if condition it is. It is laden with perilous
opportunities for partiality and abuse, and even corruption. One searches in vain
for the usual standard and the reasonable guidelines, or better still, the limitations
that the said officers must observe when they make their distribution. There is
none. Their options are apparently boundless. Who shall be the fortunate
beneficiaries of their generosity and by what criteria shall they be chosen? Only
the officers named can supply the answer, they and they alone may choose the
grantee as they see fit, and in their own exclusive discretion. Definitely, there is
here a "roving commission," a wide and sweeping authority that is not "canalized
within banks that keep it from overflowing," in short, a clearly profligate and
therefore invalid delegation of legislative powers.
To sum up then, we find that the challenged measure is an invalid exercise of the
police power because the method employed to conserve the carabaos is not
reasonably necessary to the purpose of the law and, worse, is unduly
oppressive. Due process is violated because the owner of the property
confiscated is denied the right to be heard in his defense and is immediately
condemned and punished. The conferment on the administrative authorities of
the power to adjudge the guilt of the supposed offender is a clear encroachment
on judicial functions and militates against the doctrine of separation of powers.
There is, finally, also an invalid delegation of legislative powers to the officers
mentioned therein who are granted unlimited discretion in the distribution of the
properties arbitrarily taken. For these reasons, we hereby declare Executive
Order No. 626-A unconstitutional.
We agree with the respondent court, however, that the police station commander
who confiscated the petitioner's carabaos is not liable in damages for enforcing
the executive order in accordance with its mandate. The law was at that time
presumptively valid, and it was his obligation, as a member of the police, to
enforce it. It would have been impertinent of him, being a mere subordinate of the
President, to declare the executive order unconstitutional and, on his own
responsibility alone, refuse to execute it. Even the trial court, in fact, and
the Court of Appeals itself did not feel they had the competence, for all their
superior authority, to question the order we now annul.
The Court notes that if the petitioner had not seen fit to assert and protect his
rights as he saw them, this case would never have reached us and the taking of
his property under the challenged measure would have become a fait
accompli despite its invalidity. We commend him for his spirit. Without the
present challenge, the matter would have ended in that pump boat in Masbate
and another violation of the Constitution, for all its obviousness, would have been
perpetrated, allowed without protest, and soon forgotten in the limbo of
relinquished rights.LLpr

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

SYLLABUS

1. REMEDIAL LAW; PROCEDURAL RULES; MAY BE RELAXED OR

SUSPENDED IN THE INTEREST OF SUBSTANTIAL JUSTICE.
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." 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 v. Dinglasan, 84 Phil. 368, 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."
2. CONSTITUTIONAL LAW; DELEGATION OF LEGISLATIVE POWER; HELD
VALID IN CASE AT BAR. 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 inthe Local Government Code. 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.
3. ID.; ID.; ID.; 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.
4. ID.; ID.; QUESTION POSED IS THE VALIDITY OF THE EXERCISE OF
SUCH DELEGATED POWER; TEST TO DETERMINE VALIDITY OF
MUNICIPAL ORDINANCE. 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.
5. ID.; ID.; ID.; MUNICIPAL ORDINANCE DOES NOT CONFORM TO EXISTING
LAW. 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 provisions of
Secs. 1, 3, 5 and 8 of the decree authorizing the Metropolitan Manila
Commission (and now the Metropolitan Manila Authority) to impose such
sanctions. In fact, the said 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.
6. ID.; ID.; ID.; CASE AT BAR. 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). 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 nothing. 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.
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.
7. ID.; ID.; ID.; PD 1605 APPLIES ONLY TO METROPOLITAN MANILA AREA
AND AN EXCEPTION TO THE GENERAL AUTHORITY CONFERRED
BY REPUBLIC ACT 4136 ON THE COMMISSIONER OF LAND
TRANSPORTATION. 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. 4136 on the Commissioner of Land
Transportation to punish violations of traffic rules elsewhere in the country with
the sanctions 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
sanctions, including the illicit practices described in detail in the Gonong decision.
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.
8. ID.; ID.; IT IS FOR CONGRESS TO EXERCISE ITS DISCRETION TO
DETERMINE WHETHER OR NOT TO IMPOSE THE QUESTIONED
SANCTIONS. 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 to prohibit the confiscation of license plates of motor vehicles (except
under the conditions prescribed in LOI 43) and of driver's licenses as well for
traffic violations in Metropolitan Manila.

DECISION

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 down by LOI
43 in the case of stalled vehicles obstructing the public streets. It was there also
observed that even the confiscation of drivers 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. cdll

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.
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. cdtai

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 of the 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 Operations
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.LLjur

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,
and exercise 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.
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 fee 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. LexLib

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 validity. 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. Cdpr

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 donation 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 of justice. 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) LibLex

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.)
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 Metropolitan 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.
cdtai

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. cdll

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
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 with 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 second 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 imposehigher
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 drivers 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.
cdrep

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. cdll

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. cdtai

In Villacorta vs. Bernardo, 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 imposes 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 passports, 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.LibLex

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. 4136 on the Commissioner of Land Transportation to punish
violations of traffic rules elsewhere in the country with the sanctions 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 sanctions, including the illicit practices described in detail in
the Gonong decision. 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 imposed by the challenged enactments by virtue only of the delegated
legislative powers. LibLex

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 to prohibit the
confiscation of license plates of motor vehicles (except under the conditions
prescribed in LOI 43) and of driver's licenses as well for traffic violations in
Metropolitan Manila.
WHEREFORE, judgment is hereby rendered:
(1) declaring Ordinance No. 11, Series of 1991, of the Metropolitan 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's licenses for traffic violations within the said area.
[G.R. No. 92174. December 10, 1993.]

BOIE-TAKEDA CHEMICALS, INC., petitioner, vs. HON.

DIONISIO C. DE LA SERNA, Acting Secretary of the
Department of Labor and Employment,respondent.

[G.R. No. 102552. December 10, 1993.]

PHILIPPINE FUJI XEROX CORP., petitioner, vs. CRESENCIANO

B. TRAJANO, Undersecretary of the Department of Labor and
Employment, and PHILIPPINE FUJI XEROX EMPLOYEES
UNION, respondents.

Herrera, Laurel, De los Reyes, Roxas & Teehankee for Boie-Takeda Chemicals,
Inc. and Phil. Fuji Xerox Corp.
The Solicitor General for public respondents.

SYLLABUS

1. LABOR LAW AND SOCIAL LEGISLATION; WAGES; BASIC SALARY,

CONSTRUED; CASE AT BAR. Contrary to respondents'
contention, Memorandum Order No. 28did not repeal, supersede or
abrogate P.D. 851. As may be gleaned from the language of Memorandum Order
No. 28, it merely "modified" Section 1 of the decree by removing the P1,000.00
salary ceiling. The concept of 13th Month Pay as envisioned, defined and
implemented under P.D. 851 remained unaltered, and while entitlement to said
benefit was no longer limited to employees receiving a monthly basic salary of
not more than P1,000.00, said benefit was, and still is, to be computed on the
basic salary of the employee-recipient as provided under P.D. 851. Thus, the
interpretation given to the term "basic salary" as defined in P.D. 851 applies
equally to "basic salary" under Memorandum Order No. 28. The term "basic
salary" is to be understood in its common, generally-accepted meaning, i.e., as a
rate of pay for a standard work period exclusive of such additional payments as
bonuses and overtime. This is how the term was also understood in the case
of Pless v. Franks, 308 S.W. 2d. 402, 403, 202 Tenn. 630, which held that in
statutes providing that pension should not be less than 50 percent of "basic
salary" at the time of retirement, the quoted words meant the salary than an
employee (e.g., a policeman) was receiving at the time he retired without taking
into consideration any extra compensation to which he might be entitled for extra
work. In remunerative schemes consisting of a fixed or guaranteed wage plus
commission, the fixed or guaranteed wage is patently the "basic salary" for this is
what the employee receives for a standard work period. Commissions are given
for extra efforts exerted in consummating sales or other related transactions.
They are, as such, additional pay, which this Court has made clear do not form
part of the "basic salary." In including commissions in the computation of the 13th
month pay, the second paragraph of Section 5 (a) of the Revised Guidelines on
the Implementation of the 13th Month Pay Law unduly expanded the concept of
"basic salary" as defined in P.D. 851. It is a fundamental rule that implementing
rules cannot add to or detract from the provisions of the law it is designed to
implement. Administrative regulations adopted under legislative authority by a
particular department must be in harmony with the provisions of the law they are
intended to carry into effect. They cannot widen its scope. An administrative
agency cannot amend an act of Congress. (Cebu Oxygen & Acetylene Co.,
Inc. vs. Drilon, 176 SCRA 24, citing Manuel vs. General Auditing Office, 42
SCRA 660.)

DECISION

NARVASA, C.J. : p

What item or items of employee remuneration should go into the computation of

thirteenth month pay is the basic issue presented in these consolidated petitions.
Otherwise stated, the question is whether or not the respondent labor officials in
computing said benefit, committed "grave abuse of discretion amounting to lack
of jurisdiction," by giving effect to Section 5 of the Revised Guidelines on the
Implementation of the Thirteenth Month Pay (Presidential Decree No. 851)
promulgated by then Secretary of Labor and Employment, Hon. Franklin Drilon,
and overruling petitioners' contention that said provision constituted a usurpation
of legislative power because not justified by or within the authority of the law
sought to be implemented besides violative of the equal protection of the law
clause of the Constitution.
Resolution of the issue entails, first, a review of the pertinent provisions of the
laws and implementing regulations. cdrep

Sections 1 and 2 of Presidential Decree No. 851, the Thirteenth Month Pay Law,
read as follows:
 SEC. 1. All employers are hereby required to pay all their employees
receiving basic salary of not more than P1,000.00 a month, regardless of
the nature of the employment, a 13th month pay not later than
December 24 of every year.
Sec. 2. Employers already paying their employees a 13th month pay or
its equivalent are not covered by this Decree.
The Rules and Regulations Implementing P.D. 851 promulgated by then Labor
Minister Blas Ople on December 22, 1975 contained the following relevant
provisions relative to the concept of "thirteenth month pay" and the employers
exempted from giving it, to wit:.
SEC. 2. Definition of certain terms. . . .
a) "Thirteenth month pay" shall mean one twelfth (1/12) of the basic
salary of an employee within a calendar year;
b) "Basic Salary" shall include all remunerations or earnings paid by an
employer to an employee for services rendered but may not include
cost-of-living allowances granted pursuant to Presidential Decree No.
525 or Letter of Instructions No. 174, profit-sharing payments, and all
allowances and monetary benefits which are not considered or
integrated as part of the regular or basic salary of the employee at the
time of the promulgation of the Decree on December 16, 1975. Cdpr

SEC. 3. Employers covered. . . . (The law applies) to all employers

except to:
xxx xxx xxx
c) Employers already paying their employees a 13-month pay or more in
a calendar year or its equivalent at the time of this issuance;
xxx xxx xxx
e) Employers of those who are paid on purely commission, boundary, or
task basis, and those who are paid a fixed amount for performing a
specific work, irrespective of the time consumed in the performance
thereof, except where the workers are paid on piece-rate basis in which
case the employer shall be covered by this issuance insofar as such
workers are concerned.
xxx xxx xxx
The term "its equivalent" as used in paragraph (c) shall include
Christmas bonus, mid-year bonus, profit-sharing payments and other
cash bonuses amounting to not less than 1/12th of the basic salary but
shall not include cash and stock dividends, cost of living allowances and
all other allowances regularly enjoyed by the employee, as well as non-
monetary benefits. Where an employer pays less than 1/12th of the
employee's basic salary, the employer shall pay the difference.
Supplementary Rules and Regulations Implementing P.D. 851 were
subsequently issued by Minister Ople which inter alia set out items of
compensation not included in the computation of the 13th month pay, viz.:
SEC. 4. Overtime pay, earnings and other remunerations which are not
part of the basic salary shall not be included in the computation of the
13th month pay. LibLex

On August 13, 1986, President Corazon C. Aquino promulgated Memorandum

Order No. 28, which contained a single provision modifying Presidential Decree
No. 851by removing the salary ceiling of P1,000.00 a month set by the latter, as
follows:
Section 1 of Presidential Decree No. 851 is hereby modified to the extent
that all employers are hereby required to pay all their rank-and-file
employees a 13th month pay not later than December 24, of every year.
Slightly more than a year later, on November 16, 1987, Revised Guidelines on
the Implementation of the 13th Month Pay Law were promulgated by then Labor
Secretary Franklin Drilon which, among other things, defined with particularity
what remunerative items were and were not embraced in the concept of 13th
month pay, and specifically dealt with employees who are paid a fixed or
guaranteed wage plus commission. The relevant provisions read:
4. Amount and payment of 13th Month Pay.
xxx xxx xxx
The basic salary of an employee for the purpose of computing the 13th
month pay shall include all remunerations or earnings paid by his
employer for services rendered but does not include allowances and
monetary benefits which are not considered or integrated as part of the
regular or basic salary, such as the cash equivalent of unused vacation
and sick leave credits, overtime, premium, night differential and holiday
pay, and cost-of-living allowances. However, these salary-related
benefits should be included as part of the basic salary in the computation
of the 13th month pay if by individual or collective agreement, company
practice or policy, the same are treated as part of the basic salary of the
employees. llcd

xxx xxx xxx

5. 13th Month Pay for Certain Types of Employees.
(a) Employees Paid by Results. Employees who are paid on piece
work basis are by law entitled to the 13th month pay.
Employees who are paid a fixed or guaranteed wage plus commission
are also entitled to the mandated 13th month pay based on their total
 earnings during the calendar year, i.e., on both their fixed or guaranteed
wage and commission.
This was the state of the law when the controversies at bar arose out of the
following antecedents:
(RE G.R. No. 92174) A routine inspection was conducted on May 2, 1989 in the
premises of petitioner Boie-Takeda Chemicals, Inc. by Labor and Development
Officer Reynaldo B. Ramos under Inspection Authority No. 4-209-89. Finding that
Boie-Takeda had not been including the commissions earned by its medical
representatives in the computation of their 13th month pay, Ramos served a
Notice of Inspection Results 1 on Boie-Takeda through its president, Mr. Benito
Araneta, requiring Boie-Takeda within ten (10) calendar days from notice to
effect restitution or correction of "the underpayment of 13th month pay for the
year(s) 1986, 1987 and 1988 of Med Rep (Revised Guidelines on the
Implementation of 13th month pay # 5) in the total amount of P558,810.89."

Boie-Takeda wrote the Labor Department contesting the Notice of Inspection

Results, and expressing the view "that the commission paid to our medical
representatives are not to be included in the computation of the 13th month pay .
. . (since the) law and its implementing rules speak of REGULAR or BASIC
salary and therefore exclude all other remunerations which are not part of the
REGULAR salary." It pointed out that, "If no sales is (sic) made under the effort
of a particular representative, there is no commission during the period when no
sale was transacted, so that commissions are not and cannot be legally defined
as regular in nature." 2LibLex

Regional Director Luna C. Piezas directed Boie-Takeda to appear before his

Office on June 9 and 16, 1989. On the appointed dates, however, and despite
due notice, no one appeared for Boie-Takeda, and the matter had perforce to be
resolved on the basis of the evidence at hand. On July 24, 1989, Director Piezas
issued an Order 3directing Boie-Takeda:
". . . to pay . . . (its) medical representatives and its managers the total
amount of FIVE HUNDRED SIXTY FIVE THOUSAND SEVEN
HUNDRED FORTY SIX AND FORTY SEVEN CENTAVOS
(P565,746.47) representing underpayment of thirteenth (13th) month pay
for the years 1986, 1987, 1988, inclusive, pursuant to the . . . revised
guidelines within ten (10) days from receipt of this Order."
A motion for reconsideration 4 was seasonably filed by Boie-Takeda under date
of August 3, 1989. Treated as an appeal, it was resolved on January 17, 1990 by
then Acting Labor Secretary Dionisio de la Serna, who affirmed the July 24, 1989
Order with modification that the sales commissions earned by Boie-Takeda's
medical representatives before August 13, 1989, the effectivity date
of Memorandum Order No. 28 and its Implementing Guidelines, shall be
excluded in the computation of their 13th month pay. 5
Hence the petition docketed as G.R. No. 92174.
[RE G.R. No. 102552) A similar Routine Inspection was conducted in the
premises of Philippine Fuji Xerox Corp. on September 7, 1989 pursuant to
Routine Inspection Authority No. NCR-LSED-RI-494-89. In his Notice of
Inspection Results, 6 addressed to the Manager, Mr. Nicolas O. Katigbak, Senior
Labor and Employment Officer Nicanor M. Torres noted the following violation
committed by Philippine Fuji Xerox Corp., to wit: cdrep

"Underpayment of 13th month pay of 62 employees, more or less

pursuant to Revised Guidelines on the Implementation of the 13th month
pay law for the period covering 1986, 1987 and 1988."
Philippine Fuji Xerox was requested to effect rectification and/or restitution of
the noted violation within five (5) working days from notice.
No action having been taken thereon by Philippine Fuji Xerox, Mr. Eduardo G.
Gonzales, President of Philxerox Employees Union, wrote then Labor Secretary
Franklin Drilon requesting a follow-up of the inspection findings. Messrs. Nicolas
and Gonzales were summoned to appear before Labor Employment and
Development Officer Mario F. Santos, NCR Office, Department of Labor for a
conciliation conference. When no amicable settlement was reached, the parties
were required to file their position papers.
Subsequently, Regional Director Luna C. Piezas issued an Order dated August
23, 1990, 7 disposing as follows:
"WHEREFORE, premises considered, Respondent PHILIPPINE FUJI
XEROX is hereby ordered to restitute to its salesmen the portion of the
13th month pay which arose out of the non-implementation of the said
revised guidelines, ten (10) days from receipt hereof, otherwise, Mr.
NICANOR TORRES, the SR. LABOR EMPLOYMENT OFFICER is
hereby Ordered to proceed to the premises of the Respondent for the
purpose of computing the said deficiency (sic) should respondent fail to
heed this Order."
Philippine Fuji Xerox appealed the aforequoted Order to the Office of Secretary
of Labor. In an Order dated October 10, 1991, Undersecretary Cresenciano B.
Trajano denied the appeal for lack of merit. Hence, the petition in G.R. No.
102552, which was ordered consolidated with G.R. No. 92174 as involving the
same issue. cdll

In their almost identically-worded petitions, petitioners, through common counsel,

attribute grave abuse of discretion to respondent labor officials Hon. Dionisio dela
Serna and Undersecretary Cresenciano B. Trajano in issuing the questioned
Orders of January 17, 1990 and October 10, 1991, respectively. They maintain
that under P. D. 851, the 13th month pay is based solely on basic salary. As
defined by the law itself and clarified by the Implementing and Supplementary
Rules as well as by the Supreme Court in a long line of decisions, remunerations
which do not form part of the basic or regular salary of an employee, such as
commissions, should not be considered in the computation of the 13th month
pay. This being the case, the Revised Guidelines on the Implementation of the
13th Month Pay Law issued by then Secretary Drilon providing for the inclusion
of commissions in the 13th month pay, were issued in excess of the statutory
authority conferred by P.D. 851. According to petitioners, this conclusion
becomes even more evident when considered in light of the opinion rendered by
Labor Secretary Drilon himself in "In Re: Labor Dispute at the Philippine Long
Distance Telephone Company" which affirmed the contemporaneous
interpretation by then Secretary Ople that commissions are excluded from basic
salary. Petitioners further contend that assuming that Secretary Drilon did not
exceed the statutory authority conferred by P.D. 851, still the Revised Guidelines
are null and void as they violate the equal protection of the law clause.
LLpr

Respondents through the Office of the Solicitor General question the propriety of
petitioner's attack on the constitutionality of the Revised Guidelines in a petition
forcertiorari, which, they contend, should be confined purely to the correction of
errors and/or defects of jurisdiction, including matters of grave abuse of
discretion amounting to lack or excess of jurisdiction and not extend to a
collateral attack on the validity and/or constitutionality of a law or statute. They
aver that the petitions do not advance any cogent reason or state any valid
ground to sustain the allegation of grave abuse of discretion, and that at any
rate, P.D. No. 851, otherwise known as the 13th Month Pay Law has already
been amended by Memorandum Order No. 28 issued by President Corazon C.
Aquino on August 13, 1986 so that commissions are now imputed into the
computation of the 13th Month Pay. They add that the Revised Guidelines issued
by then Labor Secretary Drilon merely clarified a gray area occasioned by the
silence of the law as to the nature of commissions; and worked no violation of the
equal protection clause of the Constitution, said Guidelines being based on
reasonable classification. Respondents point to the case of Songco vs. National
Labor Relations Commission, 183 SCRA 610, wherein this Court declared that
Article 97(f) of the Labor Code is explicit that commission is included in the
definition of the term "wage".
We rule for the petitioners.
Contrary to respondents' contention, Memorandum Order No. 28 did not repeal,
supersede or abrogate P.D. 851. As may be gleaned from the language
ofMemorandum Order No. 28, it merely "modified" Section 1 of the decree by
removing the P1,000.00 salary ceiling. The concept of 13th Month Pay as
envisioned, defined and implemented under P.D. 851 remained unaltered, and
while entitlement to said benefit was no longer limited to employees receiving a
monthly basic salary of not more than P1,000.00, said benefit was, and still is, to
be computed on the basic salary of the employee-recipient as provided
under P.D. 851. Thus, the interpretation given to the term "basic salary" as
defined in P.D. 851 applies equally to "basic salary" under Memorandum Order
No. 28.
In the case of San Miguel Corp. vs. Inciong, 103 SCRA 139, this Court
delineated the coverage of the term "basic salary" as used in P.D. 851. We said
at some length: llcd

"Under Presidential Decree 851 and its implementing rules, the basic
salary of an employee is used as the basis in the determination of his
13th month pay. Any compensations or remunerations which are
deemed not part of the basic pay is excluded as basis in the computation
of the mandatory bonus.
"Under the Rules and Regulations Implementing Presidential Decree
851, the following compensations are deemed not part of the basic
salary:
a) Cost-of-living allowances granted pursuant
to Presidential Decree 525 and Letter of Instructions No. 174;
b) Profit-sharing payments;
c) All allowances and monetary benefits which are not
considered or integrated as part of the regular basic salary of the
employee at the time of the promulgation of the Decree on
December 16, 1975.
"Under a later set of Supplementary Rules and Regulations
Implementing Presidential Decree 851 issued by then Labor Secretary
Blas Ople, overtime pay, earnings and other remunerations are excluded
as part of the basic salary and in the computation of the 13th month pay.
"The exclusion of cost-of-living allowances under Presidential Decree
525 and Letter of Instructions No. 174, and profit-sharing payments
indicate the intention to strip basic salary of other payments which are
properly considered as 'fringe' benefits. Likewise, the catch-all
exclusionary phrase 'all allowances and monetary benefits which are not
considered or integrated as part of the basic salary' shows also the
intention to strip basic salary of any and additions which may be in the
form of allowances or 'fringe' benefits.
"Moreover, the Supplementary Rules and Regulations
Implementing Presidential Decree 851 is even more emphatic in
declaring that earnings and other remunerations which are not part of
the basic salary shall not be included in the computation of the 13th-
month pay. cdphil

"While doubt may have been created by the prior Rules and Regulations
Implementing Presidential Decree 851 which defines basic salary to
include all remunerations or earnings paid by an employer to an
employee, this cloud is dissipated in the later and more controlling
Supplementary Rules and Regulations which categorically exclude from
the definitions of basic salary earnings and other remunerations paid by
employer to an employee. A cursory perusal of the two sets of Rules
indicates that what has hitherto been the subject of a broad inclusion is
now a subject of broad exclusion. The Supplementary Rules and
Regulations cure the seeming tendency of the former rules to include all
remunerations and earnings within the definition of basic salary.

"The all embracing phrase 'earnings and other remunerations' which are
deemed not part of the basic salary includes within its meaning
payments for sick, vacation, or maternity leaves, premium for works
performed on rest days and special holidays, pays for regular holidays
and night differentials. As such they are deemed not part of the basic
salary and shall not be considered in the computation of the 13th-month
pay. If they were not excluded, it is hard to find any 'earnings and other
remunerations' expressly excluded in the computation of the 13th-month
pay. Then the exclusionary provision would prove to be idle and with no
purpose.
"This conclusion finds strong support under the Labor Code of the
Philippines. To cite a few provisions:
cdphil

'Art. 87. Overtime work. Work may be performed beyond

eight (8) hours a day provided that the employee is paid for the
overtime work, additional compensation equivalent to his regular
wage plus at least twenty-five (25%) percent thereof.'
It is clear that overtime pay is an additional compensation other than and
added to the regular wage or basic salary, for reason of which such is
categorically excluded from the definition of basic salary under the
Supplementary Rules and Regulations Implementing Presidential
Decree 851.
In Article 93 of the same Code, paragraph.
'c) work performed on any special holiday shall be paid an
additional compensation of at least thirty percent (30%) of the
regular wage of the employee.'.
"It is likewise clear that premiums for special holiday which is at least
30% of the regular wage is an additional pay other than and added to the
 regular wage or basic salary. For similar reason, it shall not be
considered in the computation of the 13th-month pay.
Quite obvious from the foregoing is that the term "basic salary" is to be
understood in its common, generally-accepted meaning, i.e., as a rate of pay for
a standard work period exclusive of such additional payments as bonuses and
overtime. 8 This is how the term was also understood in the case of Pless v.
Franks, 308 S.W. 2d. 402, 403, 202 Tenn. 630, which held that in statutes
providing that pension should not be less than 50 percent of "basic salary" at the
time of retirement, the quoted words meant the salary than an employee (e.g., a
policeman) was receiving at the time he retired without taking into consideration
any extra compensation to which he might be entitled for extra work. 9 LibLex

In remunerative schemes consisting of a fixed or guaranteed wage plus

commission, the fixed or guaranteed wage is patently the "basic salary" for this is
what the employee receives for a standard work period. Commissions are given
for extra efforts exerted in consummating sales or other related transactions.
They are, as such, additional pay, which this Court has made clear do not form
part of the "basic salary."
Respondents would do well to distinguish this case from Songco vs. National
Labor Relations Commission, supra, upon which they rely so heavily. What was
involved therein was the term "salary" without the restrictive adjective "basic".
Thus, in said case, we construed the term in its generic sense to refer to all types
of "direct remunerations for services rendered," including commissions. In the
same case, we also took judicial notice of the fact "that some salesmen do not
receive any basic salary but depend on commissions and allowances or
commissions alone, although an employer-employee relationship exists," which
statement is quite significant in that it speaks of a "basic salary" apart and distinct
from "commissions" and "allowances". Instead of supporting respondents' stand,
it would appear that Songco itself recognizes that commissions are not part of
"basic salary."
In including commissions in the computation of the 13th month pay, the second
paragraph of Section 5 (a) of the Revised Guidelines on the Implementation of
the 13th Month Pay Law unduly expanded the concept of "basic salary" as
defined in P.D. 851. It is a fundamental rule that implementing rules cannot add
to or detract from the provisions of the law it is designed to implement.
Administrative regulations adopted under legislative authority by a particular
department must be in harmony with the provisions of the law they are intended
to carry into effect. They cannot widen its scope. An administrative agency
cannot amend an act of Congress. 10 LLpr

Having reached this conclusion, we deem it unnecessary to discuss the other

issues raised in these petitions.
WHEREFORE, the consolidated petitions are hereby GRANTED. The second
paragraph of Section 5 (a) of the Revised Guidelines on the Implementation of
the 13th Month Pay Law issued on November 16, 1987 by then Labor Secretary
Franklin M. Drilon is declared null and void as being violative of the law said
Guidelines were issued to implement, hence issued with grave abuse of
discretion correctible by the writ of prohibition and certiorari. The assailed Orders
of January 17, 1990 and October 10, 1991 based thereon are SET ASIDE.
(Boie-Takeda Chemicals, Inc. v. De La Serna, G.R. No. 92174, 102552,
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[December 10, 1993])