Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 134577 November 18, 1998

SEN. MIRIAM DEFENSOR SANTIAGO and SEN. FRANCISCO S. TATAD, petitioners,

vs.
SEN. TEOFISTO T. GUINGONA, JR. and SEN. MARCELO B. FERNAN, respondents.

PANGANIBAN, J.:

The principle of separation of powers ordains that each of the three great branches of government
has exclusive cognizance of and is supreme in matters falling within its own constitutionally allocated
sphere. Constitutional respect and a becoming regard for she sovereign acts, of a coequal branch
prevents this Court from prying into the internal workings of the Senate. Where no provision of the
Constitution or the laws or even the Rules of the Senate is clearly shown to have been violated,
disregarded or overlooked, grave abuse of discretion cannot be imputed to Senate officials for acts
done within their competence and authority. This Court will be neither a tyrant nor a wimp; rather, it
will remain steadfast and judicious in upholding the rule and majesty of the law.

The Case

On July 31, 1998, Senators Miriam Defensor Santiago and Francisco S. Tatad instituted an original
petition for quo warranto under Rule 66, Section 5, Rules of Court, seeking the ouster of Senator
Teofisto T. Guingona, Jr. as minority leader of the Senate and the declaration of Senator Tatad as
the rightful minority leader.

On August 4, 1998, the Court, upon receipt of the Petition, required the respondents and the solicitor
general "to file COMMENT thereon within a non-extendible period of fifteen (15) days from notice."
On August 25, 1998, both respondents and the solicitor general submitted their respective
Comments. In compliance with a Resolution of the Court dated September 1, 1998, petitioners filed
their Consolidated Reply on September 23, 1998. Noting said pleading, this Court gave due course
to the petition and deemed the controversy submitted for decision, without need of memoranda, on
September 29, 1998.

In the regular course, the regional trial courts and this Court have concurrent jurisdiction1 to hear
and decide petitions for quo warranto (as well as certiorari, prohibition and mandamus), and
a basic deference to the hierarchy of courts impels a filing of such petitions in the lower
tribunals. 2 However, for special and important reasons or for exceptional and compelling
circumstances, as in the present case, this Court has allowed exceptions to this doctrine.3 In
fact, original petitions for certiorari, prohibition, mandamus and quo warranto assailing acts
of legislative officers like the Senate President4 and the Speaker of the House 5 have been
recognized as exceptions to this rule.

The Facts

The Senate of the Philippines, with Sen. John Henry R. Osmeña as presiding officer,
convened on July 27, 1998 for the first regular session of the eleventh Congress. At the time,
in terms of party affiliation, the composition of the Senate was as follows: 6

10 members — Laban ng Masang Pilipino (LAMP)

7 members — Lakas-National Union of Christian Democrats-United

Muslim Democrats of the Philippines (Lakas-NUCD-

1
 UMDP)

1 member — Liberal Party (LP)

1 member — Aksyon Demokrasya

1 member — People's Reform Party (PRP)

1 member — Gabay Bayan

2 members — Independent

——

23 — total number of senators 7 (The last six members are all classified by
petitioners as "independent".)

On the agenda for the day was the election of officers. Nominated by Sen. Blas F. Ople to the
position of Senate President was Sen. Marcelo B. Fernan. Sen. Francisco S. Tatad was also
nominated to the same position by Sen. Miriam Defenser Santiago. By a vote of 20 to
2, 8 Senator Fernan was declared the duly elected President of the Senate.

The following were likewise elected: Senator Ople as president pro tempore, and Sen.
Franklin M. Drilon as majority leader.

Senator Tatad thereafter manifested that, with the agreement of Senator Santiago, allegedly
the only other member of the minority, he was assuming the position of minority leader. He
explained that those who had voted for Senator Fernan comprised the "majority," while only
those who had voted for him, the losing nominee, belonged to the "minority."

During the discussion on who should constitute the Senate "minority," Sen. Juan M. Flavier
manifested that the senators belonging to the Lakas-NUCD-UMDP Party — numbering seven
(7) and, thus, also a minority — had chosen Senator Guingona as the minority leader. No
consensus on the matter was arrived at. The following session day, the debate on the
question continued, with Senators Santiago and Tatad delivering privilege speeches. On the
third session day, the Senate met in caucus, but still failed to resolve the issue.

On July 30, 1998, the majority leader informed the body chat he was in receipt of a letter
signed by the seven Lakas-NUCD-UMDP senators,9 stating that they had elected Senator
Guingona as the minority leader. By virtue thereof, the Senate President formally recognized
Senator Guingona as the minority leader of the Senate.

The following day, Senators Santiago and Tatad filed before this Court the subject petition
for quo warranto, alleging in the main that Senator Guingona had been usurping, unlawfully
holding and exercising the position of Senate minority leader, a position that, according to
them, rightfully belonged to Senator Tatad.

Issues

From the parties' pleadings, the Court formulated the following issues for resolution:

1. Does the Court have jurisdiction over the petition?

2. Was there an actual violation of the Constitution?

3. Was Respondent Guingona usurping, unlawfully holding and exercising the

position of Senate minority leader?

4. Did Respondent Fernan act with grave abuse of discretion in recognizing

Respondent Guingona as the minority leader?

The Court's Ruling

2
After a close perusal of the pleadings 10 and a careful deliberation on the
arguments, pro and con, the Court finds that no constitutional or legal infirmity or grave
abuse of discretion attended the recognition of and the assumption into office by
Respondent Guingona as the Senate minority leader.

First Issue:

The Court's Jurisdiction

Petitioners principally invoke Avelino v. Cuenco 11 in arguing that this Court has jurisdiction
to settle the issue of who is the lawful Senate minority leader. They submit that the
definitions of "majority" and "minority" involve an interpretation of the Constitution,
specifically Section 16 (1), Article VI thereof, stating that "[t]he Senate shall elect its President
and the House of Representatives its Speaker, by a majority vote of all its respective
Members."

Respondents and the solicitor general, in their separate Comments, contend in common that
the issue of who is the lawful Senate minority leader is an internal matter pertaining
exclusively to the domain of the legislature, over which the Court cannot exercise jurisdiction
without transgressing the principle of separation of powers. Allegedly, no constitutional
issue is involved, as the fundamental law does not provide for the office of a minority leader
in the Senate. The legislature alone has the full discretion to provide for such office and, in
that event, to determine the procedure of selecting its occupant.

Respondents also maintain that Avelino cannot apply, because there exists no question
involving an interpretation or application of the Constitution, the laws or even the Rules of
the Senate; neither are there "peculiar circumstances" impelling the Court to assume
jurisdiction over the petition. The solicitor general adds that there is not even any legislative
practice to support the petitioners' theory that a senator who votes for the winning Senate
President is precluded from becoming the minority leader.

To resolve the issue of jurisdiction, this Court carefully reviewed and deliberated on the
various important cases involving this very important and basic question, which it has ruled
upon in the past.

The early case Avelino v. Cuenco cautiously tackled the scope of the Court's power of
judicial review; that is, questions involving an interpretation or application of a provision of
the Constitution or the law, including the rules of either house of Congress. Within this scope
falls the jurisdiction of the Court over questions on the validity of legislative or executive acts
that are political in nature, whenever the tribunal "finds constitutionally imposed limits on
powers or functions conferred upon political bodies." 12

In the aforementioned case, the Court initially declined to resolve the question of who was
the rightful Senate President, since it was deemed a political controversy falling exclusively
within the domain of the Senate. Upon a motion for reconsideration, however, the Court
ultimately assumed jurisdiction (1) "in the light of subsequent events which justify its
intervention;" and (2) because the resolution of the issue hinged on the interpretation of the
constitutional provision on the presence of a quorum to hold a session 13 and therein elect a
Senate President.

Justice Feria elucidated in his Concurring Opinion: "[I] concur with the majority that this
Court has jurisdiction over cases like the present . . . so as to establish in this country the
judicial supremacy, with the Supreme Court as the final arbiter, to see that no one branch or
agency of the government transcends the Constitution, not only in justiceable but political
questions as well." 14

Justice Perfecto, also concurring, said in part:

Indeed there is no denying that the situation, as obtaining in the upper

chamber of Congress, is highly explosive. It had echoed in the House of
Representatives. It has already involved the President of the Philippines. The
situation has created a veritable national crisis, and it is apparent that solution

3
 cannot be expected from any quarter other than this Supreme Court, upon
which the hopes of the people for an effective settlement are pinned. 15

. . . This case raises vital constitutional questions which no one can settle or
decide if this Court should refuse to decide them. 16

. . . The constitutional question of quorum should not be left unanswered. 17

In Tañada v. Cueno, 18 this Court endeavored to define political question. And we said that "it
refers to 'those questions which, under the Constitution, are to be decided by the people in
their sovereign capacity, or in regard to which full discretionary authority has been delegated
to the legislative or executive branch of the government.' It is concerned with issues
dependent upon the wisdom, not [the] legality, of a particular measure." 19

The Court ruled that the validity of the selection of members of the Senate Electoral Tribunal
by the senators was not a political question. The choice of these members did not depend on
the Senate's "full discretionary authority," but was subject to mandatory constitutional
limitations. 20 Thus, the Court held that not only was it clearly within its jurisdiction to pass
upon the validity of the selection proceedings, but it was also its duty to consider and
determine the issue.

In another landmark case, Lansang v. Garcia, 21 Chief Justice Roberto Concepcion wrote that
the Court "had authority to and should inquire into the existence of the factual bases
required by the Constitution for the suspension of the privilege of the writ [of habeas
corpus]." This ruling was made in spite of the previous pronouncements in Barcelon v.
Baker 22 and Montenegro v. Castañeda 23 that "the authority to decide whether the exigency
has arisen requiring suspension (of the privilege . . .) belongs to the President and his
'decision is final and conclusive' upon the courts and upon all other persons." But the Chief
Justice cautioned: "the function of the Court is merely to check — not to supplant — the
Executive, or to ascertain merely whether he has gone beyond the constitutional limits of his
jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act."

The eminent Chief Justice aptly explained later in Javellana v. Executive Secretary: 24

The reason why the issue under consideration and other issues of similar
character are justiciable, not political, is plain and simple. One of the principal
bases of the non-justiciability of so-called political questions is the principle of
separation of powers — characteristic of the presidential system of
government — the functions of which are classified or divided, by reason of
their nature, into three (3) categories, namely, 1) those involving the making of
laws, which are allocated to the legislative department; 2) those concerning
mainly with the enforcement of such laws and of judicial decisions applying
and/or interpreting the same, which belong to the executive department; and 3)
those dealing with the settlement of disputes, controversies or conflicts
involving rights, duties or prerogatives that are legally demandable and
enforceable, which are apportioned to courts of justice. Within its own sphere
— but only within such sphere — each department is supreme and
independent of the others, and each is devoid of authority not only to encroach
upon the powers or field of action assigned to any of the other departments,
but also to inquire into or pass upon the advisability or wisdom of the acts
performed, measures taken or decisions made by the other departments —
provided that such acts, measures or decisions are within the area allocated
thereto by the Constitution.

Accordingly, when the grant of power is qualified, conditional or subject to

limitations, the issue of whether or not the prescribed qualifications or
conditions have been met, or the limitations respected is justiciable or non-
political, the crux of the problem being one of legality or validity of the
contested act, not its wisdom. Otherwise, said qualifications, conditions or
limitations — particularly those prescribed by the Constitution — would be set
at naught. What is more, the judicial inquiry into such issue and the settlement
thereof are the main functions of the courts of justice under the presidential
form of government adopted in our 1935 Constitution, and the system of
checks and balances, one of its basic predicates. As a consequence, we have

4
 neither the authority nor the discretion to decline passing upon said issue, but
are under the ineluctable obligation — made particularly more exacting and
peremptory by our oath, as members of the highest Court of the land, to
support and defend the Constitution — to settle it. This explains why, in Miller
v. Johnson [92 Ky. 589, 18 SW 522, 523], it was held that courts have a "duty,
rather than a power," to determine whether another branch of the government
has "kept within constitutional limits."

Unlike our previous constitutions, the 1987 Constitution is explicit in defining the scope of
judicial power. The present Constitution now fortifies the authority of the courts to determine
in an appropriate action the validity of the acts of the political departments. It speaks of
judicial prerogative in terms of duty, viz.:

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. 25

This express definition has resulted in clearer and more resolute pronouncements of the
Court. Daza v. Singson, 26 Coseteng v. Mitra, Jr. 27 and Guingona Jr. v. Gonzales 28 similarly
resolved issues assailing the acts of the leaders of both houses of Congress in apportioning
among political parties the seats to which each chamber was entitled in the Commission on
Appointments. The Court held that the issue was justiciable, "even if the question were
political in nature," since it involved "the legality, not the wisdom, of the manner of filling the
Commission on Appointments as prescribed by [Section 18, Article VI of] the Constitution."

The same question of jurisdiction was raised in Tañada v. Angara, 29 wherein the petitioners
sought to nullify the Senate's concurrence in the ratification of the World Trade Organization
(WTO) Agreement. The Court ruled: "Where an action of the legislative branch is seriously
alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of
the judiciary to settle the dispute." The Court en banc unanimously stressed that in taking
jurisdiction over petitions questioning, an act of the political departments of government, it
will not review the wisdom, merits or propriety of such action, and will strike it down only on
either of two grounds: (1) unconstitutionality or illegality and (2) grave abuse of discretion.

Earlier in Co v. Electoral Tribunal of the House of Representatives 30 (HRET), the Court

refused to reverse a decision of the HRET, in the absence of a showing that said tribunal had
committed grave abuse of discretion amounting to lack of jurisdiction. The Court ruled that
full authority had been conferred upon the electoral tribunals of the House of Representatives
and of the Senate as sole judges of all contests relating to the election, the returns, and the
qualifications of their respective members. Such jurisdiction is original and exclusive. 31 The
Court may inquire into a decision or resolution of said tribunals only if such "decision or
resolution was rendered without or in excess of jurisdiction, or with grave abuse of
discretion" 32

Recently, the Court, in Arroyo v. De Venecia, 33 was asked to reexamine the enrolled bill
doctrine and to look beyond the certification of the Speaker of the House of Representatives
that the bill, which was later enacted as Republic Act 8240, was properly approved by the
legislative body. Petitioners claimed that certain procedural rules of the House had been
breached in the passage of the bill. They averred further that a violation of the
constitutionally mandated House rules was a violation of the Constitution itself.

The Court, however, dismissed the petition, because the matter complained of concerned the
internal procedures of the House, with which the Court had no concern. It enucleated: 34

It would-be an unwarranted invasion of the prerogative of a coequal

department for this Court either to set aside a legislative action as void
because the Court thinks the House has disregarded its own rules of
procedure, or to allow those defeated in the political arena to seek a rematch in
the judicial forum when petitioners can find their remedy in that department
itself. The Court has not been invested with a roving commission to inquire
into complaints, real or imagined, of legislative skullduggery. It would be
acting in excess of its power and would itself be guilty of grave abuse of

5
 discretion were it to do so. . . . In the absence of anything to the contrary, the
Court must assume that Congress or any House thereof acted in the good faith
belief that its conduct was permitted by its rules, and deference rather than
disrespect is due the judgment of that body.

In the instant controversy, the petitioners — one of whom is Senator Santiago, a well-known
constitutionalist — try to hew closely to these jurisprudential parameters. They claim that
Section 16 (1), Article VI of the constitution, has not been observed in the selection of the
Senate minority leader. They also invoke the Court's "expanded" judicial power "to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction" on the part of respondents.

Dissenting in part, Mr. Justice Vicente V. Mendoza submits that the Court has no jurisdiction
over the petition. Well-settled is the doctrine, however, that jurisdiction over the subject
matter of a case is determined by the allegations of the complaint or petition, regardless of
whether the plaintiff or petitioner is entitled to the relief asserted. 35 In light of the aforesaid
allegations of petitioners, it is clear that this Court has jurisdiction over the petition. It is well
within the power and jurisdiction of the Court to inquire whether indeed the Senate or its
officials committed a violation of the Constitution or gravely abused their discretion in the
exercise of their functions and prerogatives.

Second Issue:

Violation of the Constitution

Having assumed jurisdiction over the petition, we now go to the next crucial question: In
recognizing Respondent Guingona as the Senate minority leader, did the Senate or its
officials, particularly Senate President Fernan, violate the Constitution or the laws?

Petitioners answer the above question in the affirmative. They contend that the constitutional
provision requiring the election of the Senate President "by majority vote of all members"
carries with it a judicial duty to determine the concepts of "majority" and "minority," as well
as who may elect a minority leader. They argue that "majority" in the aforequoted
constitutional provision refers to that group of senators who (1) voted for the winning Senate
President and (2) accepted committee chairmanships. Accordingly, those who voted for the
losing nominee and accepted no such chairmanships comprise the minority, to whom the
right to determine the minority leader belongs. As a result, petitioners assert, Respondent
Guingona cannot be the legitimate minority leader, since he voted for Respondent Fernan as
Senate President. Furthermore, the members of the Lakas-NUCD-UMDP cannot choose the
minority leader, because they did not belong to the minority, having voted for Fernan and
accepted committee chairmanships.

We believe, however, that the interpretation proposed by petitioners finds no clear support
from the Constitution, the laws, the Rules of the Senate or even from practices of the Upper
House.

The term "majority" has been judicially defined a number of times. When referring to a certain
number out of a total or aggregate, it simply "means the number greater than half or more
than half of any total."36 The plain and unambiguous words of the subject constitutional
clause simply mean that the Senate President must obtain the votes of more than one half
of all the senators. Not by any construal does it thereby delineate who comprise the
"majority," much less the "minority," in the said body. And there is no showing that the
framers of our Constitution had in mind other than the usual meanings of these terms.

In effect, while the Constitution mandates that the President of the Senate must be elected by
a number constituting more than one half of all the members thereof, it does not provide that
the members who will not vote for him shall ipso facto constitute the "minority," who could
thereby elect the minority leader. Verily, no law or regulation states that the defeated
candidate shall automatically become the minority leader.

The Comment 37 of Respondent Guingona furnishes some relevant precedents, which were
not contested in petitioners' Reply. During the eighth Congress, which was the first to
convene after the ratification of the 1987 Constitution, the nomination of Sen. Jovito R
Salonga as Senate President was seconded by a member of the minority, then Sen. Joseph E.

6
Estrada. 38 During the ninth regular session, when Sen. Edgardo J. Angara assumed the
Senate presidency in 1993, a consensus was reached to assign committee chairmanships to
all senators, including those belonging to the minority. 39 This practice continued during the
tenth Congress, where even the minority leader was allowed to chair a committee. 40 History
would also show that the "majority" in either house of Congress has referred to the political
party to which the most number of lawmakers belonged, while the "minority" normally
referred to a party with a lesser number of members.

Let us go back to the definitions of the terms "majority" and "minority." Majority may also
refer to "the group, party, or faction with the larger number of votes," 41 not necessarily more
than one half. This is sometimes referred to as plurality. In contrast, minority is "a group,
party, or faction with a smaller number of votes or adherents than the
majority." 42 Between two unequal parts or numbers comprising a whole or totality, the greater
number would obviously be the majority while the lesser would be the minority. But where
there are more than two unequal groupings, it is not as easy to say which is the minority
entitled to select the leader representing all the minorities. In a government with a multi-party
system such as in the Philippines (as pointed out by petitioners themselves), there could be
several minority parties, one of which has to be indentified by the Comelec as the "dominant
minority party" for purposes of the general elections. In the prevailing composition of the
present Senate, members either belong to different political parties or are independent. No
constitutional or statutory provision prescribe which of the many minority groups or the
independents or a combination thereof has the right to select the minority leader.

While the Constitution is explicit on the manner of electing a Senate President and a House
Speaker, it is, however, dead silent on the manner of selecting the other officers in both
chambers of Congress. All that the Charter says is that "[e]ach House shall choose such
other officers as it may deem necessary." 43 To our mind, the method of choosing who will be
such other officers is merely a derivative of the exercise of the prerogative conferred by the
aforequoted constitutional provision. Therefore, such method must be prescribed by the
Senate itself, not by this Court.

In this regard, the Constitution vests in each house of Congress the power "to determine the
rules of its proceedings." 44 Pursuant thereto, the Senate formulated and adopted a set of
rules to govern its internal affairs. 45 Pertinent to the instant case are Rules I and II thereof,
which provide:

Rule I

ELECTIVE OFFICERS

Sec 1. The Senate shall elect, in the manner hereinafter provided, a President,
a President Pro Tempore, a Secretary, and a Sergeant-at-Arms.

These officers shall take their oath of office before entering into the discharge
of their duties.

Rule II

ELECTION OF OFFICER

Sec. 2. The officers of the Senate shall be elected by the majority vote of all its
Members. Should there be more than one candidate for the same office, a
nominal vote shall be taken; otherwise, the elections shall be by viva voce or
by resolution.

Notably, the Rules of the Senate do not provide for the positions of majority and minority
leaders. Neither is there an open clause providing specifically for such offices and
prescribing the manner of creating them or of choosing the holders thereof, At any rate, such
offices, by tradition and long practice, are actually extant. But, in the absence of
constitutional or statutory guidelines or specific rules, this Court is devoid of any basis upon
which to determine the legality of the acts of the Senate relative thereto. On grounds of
respect for the basic concept of separation of powers, courts may not intervene in the
internal affairs of the legislature; it is not within the province of courts to direct Congress

7
how to do its work. 46 Paraphrasing the words of Justice Florentino P. Feliciano, this Court is
of the opinion that where no specific, operable norms and standards are shown to exist, then
the legislature must be given a real and effective opportunity to fashion and promulgate as
well as to implement them, before the courts may intervene. 47

Needless to state, legislative rules, unlike statutory laws, do not have the imprints of
permanence and obligatoriness during their effectivity. In fact, they "are subject to
revocation, modification or waiver at the pleasure of the body adopting them." 48 Being merely
matters of procedure, their observance are of no concern to the courts, for said rules may be
waived or disregarded by the legislative body 49 at will, upon the concurrence of a majority.

In view of the foregoing, Congress verily has the power and prerogative to provide for such
officers as it may deem. And it is certainly within its own jurisdiction and discretion to
prescribe the parameters for the exercise of this prerogative. This Court has no authority to
interfere and unilaterally intrude into that exclusive realm, without running afoul of
constitutional principles that it is bound to protect and uphold — the very duty that justifies
the Court's being. Constitutional respect and a becoming regard for the sovereign acts of a
coequal branch prevents this Court from prying into the internal workings of the Senate. To
repeat, this Court will be neither a tyrant nor a wimp; rather, it will remain steadfast and
judicious in upholding the rule and majesty of the law.

To accede, then, to the interpretation of petitioners would practically amount to judicial

legislation, a clear breach of the constitutional doctrine of separation of powers. If for this
argument alone, the petition would easily fail.

While no provision of the Constitution or the laws or the rules and even the practice of the
Senate was violated, and while the judiciary is without power to decide matters over which
full discretionary authority has been lodged in the legislative department, this Court may still
inquire whether an act of Congress or its officials has been made with grave abuse of
discretion. 50 This is the plain implication of Section 1, Article VIII of the Constitution, which
expressly confers upon the judiciary the power and the duty not only "to settle actual
controversies involving rights which are legally demandable and enforceable," but likewise
"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."

Explaining the above-quoted clause, former Chief Justice Concepcion, who was a member of
the 1986 Constitutional Commission, said in part: 51

. . . the powers of government are generally considered divided into three

branches: the Legislative, the Executive and the Judiciary. Each one is
supreme within its own sphere and independent of the others. Because of that
supremacy[, the] power to determine whether a given law is valid or not is
vested in courts of justice.

Briefly stated, courts of justice determine the limits of power of the agencies
and offices of the government as well as those of its officers. In other words,
the judiciary is the final arbiter on the question whether or not a branch of
government or any of its officials has acted without jurisdiction or in excess of
jurisdiction, or so capriciously as to constitute an abuse of discretion
amounting to excess of jurisdiction or lack of jurisdiction. This is not only a
judicial power but a duty to pass judgment on matters of this nature.

This is the background of paragraph 2 of Section 1, which means that the

courts cannot hereafter evade the duty to settle matters of this nature, by
claiming that such matters constitute a political question.

With this paradigm, we now examine the two other issues challenging the actions, first, of
Respondent Guingona and, second, of Respondent Fernan.

Third Issue:

Usurpation of Office

8
Usurpation generally refers to unauthorized arbitrary assumption and exercise of power 52 by
one without color of title or who is not entitled by law thereto. 53 A quo warranto proceeding is
the proper legal remedy to determine the right or title to the contested public office and to
oust the holder from its enjoyment. 54 The action may be brought by the solicitor general or a
public prosecutor 55 or any person claiming to be entitled to the public office or position
usurped or unlawfully held or exercised by another. 56 The action shall be brought against the
person who allegedly usurped, intruded into or is unlawfully holding of exercising such
office. 57

In order for a quo warranto proceeding to be successful, the person suing must show that he
or she has aclear right to the contested office or to use or exercise the functions of the office
allegedly usurped or unlawfully held by the respondent. 58 In this case, petitioners present no
sufficient proof of a clear and indubitable franchise to the office of the Senate minority leader.

As discussed earlier, the specific norms or standards that may be used in determining who
may lawfully occupy the disputed position has not been laid down by the Constitution, the
statutes, or the Senate itself in which the power has been vested. Absent any clear-cut
guideline, in no way can it be said that illegality or irregularity tainted Respondent
Guingona's assumption and exercise of the powers of the office of Senate minority leader.
Furthermore, no grave abuse of discretion has been shown to characterize any of his specific
acts as minority leader.

Fourth Issue:

Fernan's Recognition of Guingona

The all-embracing and plenary power and duty of the Court "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" is restricted only by the definition
and confines of the term "grave abuse of discretion."

By grave abuse of discretion is meant such capricious or whimsical exercise

of judgment as is equivalent to lack of jurisdiction. The abuse of discretion
must be patent and gross as to amount to an evasion of positive duty or a
virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law as where the power is exercised in an arbitrary and
despotic manner by reason of passion and hostility. 59

By the above standard, we hold that Respondent Fernan did not gravely abuse his discretion
as Senate President in recognizing Respondent Guingona as the minority leader. Let us recall
that the latter belongs to one of the minority parties in the Senate, the Lakas-NUCD-UMDP. By
unanimous resolution of the members of this party that he be the minority leader, he was
recognized as such by the Senate President. Such formal recognition by Respondent Fernan
came only after at least two Senate sessions and a caucus, wherein both sides were liberally
allowed to articulate their standpoints.

Under these circumstances, we believe that the Senate President cannot be accused of
"capricious or whimsical exercise of judgment" or of "an arbitrary and despotic manner by
reason of passion or hostility." Where no provision of the Constitution, the laws or even the
rules of the Senate has been clearly shown to have been violated, disregarded or overlooked,
grave abuse of discretion cannot be imputed to Senate officials for acts done within their
competence and authority.

WHEREFORE, for the above reasons, the petition is hereby DISMISSED.

SO ORDERED.

Narvasa, C.J., Davide, Jr., Melo, Puno, Martinez, Quisumbing and Pardo, JJ., concur.

Romero, J., Please see separate opinion.

Bellosillo, J., No part. Did not take part in deliberation.

9
Vitug, J., Pls. see separate opinion.

Kapunan, J., I concur with Justice Mendoza's concurring and dissenting opinion.

Mendoza, J., Please see concurring and dissenting opinion.

Purisima, J., Join concurring and dissenting opinion of Justice Mendoza.

Separate Opinions

MENDOZA, J., concurring in the judgment and dissenting in part;

I concur in the judgment of the Court, but I disagree that "[it] has jurisdiction over the petition
[in this case] to determine whether the Senate or its officials committed a violation of the
Constitution or gravely abused their discretion in the exercise of their functions and
prerogatives."1

The Court has no jurisdiction over this case. The question who constitute the minority in the
Senate entitled to elect the minority leader of that chamber is political. It respects the internal
affairs of a coequal department of the government and is thus addressed solely to that
august body.

Courts have no power to inquire into the internal organization and business of a house of
Congress except as the question affects the rights of third parties or a specific constitutional
limitation is involved.

For this reason this Court has declined to take cognizance of cases involving the discipline
of members2 of the legislature and the application and interpretation of the rules of procedure
of a house.3 For indeed, these matters pertain to the internal government of Congress and are
within its exclusive jurisdiction.

Dean Sinco has pointed out that the Speaker of the House of Representatives and the
President of the Senate are not state officers. They do not attain these positions by popular
vote but only by the vote of their respective chambers. They receive their mandate as such
not from the voters but from their peers in the house. While their offices are a constitutional
creation, nevertheless they are only legislative officers. It is their position as members of
Congress which gives them the status of state officers. As presiding officers of their
respective chambers, their election as well as removal is determined by the vote of the
majority of the members of the house to which they belong.4 Thus, Art VI, §16(1) of the
Constitution provides:

The Senate shall elect its President and the of Representatives its Speaker, by
a majority vote of all its respective Members.

Each House shall choose such other officers as it may deem necessary.

This is likewise true of the "other officers" of each house whose election and removal
rest solely within the prerogative of the members and is no concern of the courts.

Indeed, in those cases in which this Court took cognizance of matters pertaining to the
internal government of each house, infringements of specific constitutional limitations were
alleged.

In Avelino v. Cuenco,5 the question was whether with only 12 senators present there was a
quorum for the election of the Senate President, considering that, of the 24 members, one
was in the hospital while another one was abroad. The case called for an interpretation of Art.
VI, §10(2) of the 1935 Constitution which provided that "A majority of each House shall

10
constitute a quorum to do business. . . ." While initially declining to assume jurisdiction, this
Court finally took cognizance of the matter. As Justice Perfecto, whose separate opinion in
support of the assumption of jurisdiction was one of the reasons which persuaded the Court
to intervene in the Senate imbroglio, stated, "Whether there was a quorum or not in the
meeting of twelve Senators . . . is a question that calls for the interpretation, application and
enforcement of an express and specific provision of the Constitution."6 In his view, "The word
quorum is a mathematical word. It has, as such, a precise and exact mathematical meaning. A
majority means more than one-half (1/2)." 7

In Tañada v. Cuenco,8 the question was whether the majority could fill the seats intended for
the minority party in the Senate Electoral Tribunal when there are not enough minority
members in the Senate. Again, the question was governed by a specific provision (Art. VI,
§11) of the 1935 charter which provided that the Electoral Tribunals of each house should be
composed of "nine Members, three of whom shall be Justices of the Supreme Court . . . I and
the remaining six shall be Members of the Senate or of the House of Representatives, as the
case may be, who shall be chosen by each House, three upon the nomination of the party
having the largest number of votes and three of the party having the second largest number
of votes therein." There was, therefore, a specific constitutional provision to be applied.

The cases9 concerning the composition of the Commission on Appointments likewise

involved the mere application of a constitutional provision, specifically Art. VI, §18 of the
present Constitution which provides that the Commission shall be composed of "twelve
Senators and twelve Members of the House of Representatives, elected by each House on the
basis of proportional representation from the political parties and parties or organizations
registered under the party-list system represented therein." Undoubtedly, the Court had
jurisdiction over the cases.

On the other hand, as long as the proportional representation of political parties and
organizations is observed the Court has held itself to be without jurisdiction over the choice
of nominees. In Cabili v. Francisco, 10 it declined to take cognizance of a quo warranto suit
seeking to annul the recomposition of the Senate representation in the Commission and to
reinstate a particular senator after satisfying itself that such recomposition of the Senate
representation was not a "departure from the constitution mandate requiring proportional
representation of the political organizations in the Commission on Appointments."

It is true that in Cunanan v. Tan 11 this Court took cognizance of the case which involved the
reorganization of the Commission as a result of the realignment of political forces in the
House of Representatives and the formation of a temporary alliance. But the Court's decision
was justified because the case actually involved the right of a third party whose nomination
by the President had been rejected by the reorganized Commission. As held in Pacete v. The
Secretary of the Commission on Appointments. 12 where the construction to be given to a rule
affects persons other than members of the legislative body, the question presented is judicial
in character.

In contrast to the specific constitutional limitations involved in the foregoing cases, beyond
providing that the Senate and the House of Representatives shall elect a President and
Speaker, respectively, and such other officers as each house shall determine "by a majority
vote of all [their] respective Members," the Constitution leaves everything else to each house
of Congress. Such matters are political and are left solely to the judgment of the legislative
department of the government.

This case involves neither an infringement of specific constitutional limitations nor a

violation of the rights of a party not a member of Congress. This Court has jurisdiction over
this case only in the sense that determining whether the question involved is reserved to
Congress is itself an exercise of jurisdiction in the same way that a court which dismisses a
case for lack of jurisdiction must in a narrow sense have jurisdiction since it cannot dismiss
the case if it were otherwise. The determination of whether the question involved is
justiciable or not is in itself a process of constitutional interpretation. This is the great lesson
ofMarbury v. Madison 13 in which the U.S. Supreme Court, while affirming its power of review,
in the end held itself to be without jurisdiction because the Judiciary Act of 1789 granting it
jurisdiction over that case was unconstitutional. In other words, a court doing a Marbury v.
Madison has no jurisdiction except to declare itself without jurisdiction over the case.

I vote to dismiss the petition in this case for lack of jurisdiction.

11
ROMERO, J., separate opinion;

"Loyalty to petrified opinion never yet broke a chain or freed a human soul."

These words vividly inscribed just beneath Mark Twain's bust at the Hall of Fame veritably
speaks about the creativity and dynamism which ought to characterize our perspective of
things. It instructs us to broaden our horizon that we may not be held captive by ignorance.
Free and robust thinking is the imperative.

But there are times when one has to render fealty to certain fundamental precepts and I
believe that this occasion presents an opportunity to do so. Thus, as I join the majority and
cast my vote today for the denial of the instant petition, may I just be allowed to reiterate
jurisprudential postulates which I have long embraced, not for the sake of "loyalty to petrified
opinion" but to stress consistency in doctrine in the hope that all future disputes of this
nature may be similarly resolved in this manner.

This is not actually the first time that the Court has been invited to resolve a matter
originating from the internal processes undertaken by a co-equal branch of government,
more particularly the Senate in this case. Earlier, in the landmark case of Tolentino v.
Secretary of Finance, et al.,1 we were confronted, among other things, by the issue of whether
a significant tax measure namely, Republic Act. No. 7716 (Expanded Value-Added Tax Law),
went through the legislative mill in keeping with the constitutionally-mandated procedure for
the passage of bills. Speaking through Justice Vicente V. Mendoza, the majority upheld the
tax measure's validity, relying on the enrolled bill theory and the view that the Court is not the
appropriate forum to enforce internal legislative rules supposedly violated when the bill was
being passed by Congress. I took a different view, however, from the majority because of
what I felt was a sweeping reliance on said doctrines without giving due regard to the
peculiar facts of the case. I underscored that these principles may not be applied where the
internal legislative rules would breach the Constitution which this Court has a solemn duty to
uphold. It was my position then that the introduction of several provisions in the Bicameral
Committee Report violated the constitutional proscription against any amendment to a bill
upon the last reading thereof and which this Court, in the exercise of its judicial power, can
properly inquire into without running afoul of the principle of separation of powers.

Last year,2 Arroyo, et al. v. de Venecia, et al.3 presented an opportunity for me to clarify my
position further. In that case, Congressman Joker Arroyo filed a petition before the Court
complaining that during a session by the House of Representatives, he was effectively
prevented from raising the question of quorum which to him tainted the validity of Republic
Act No. 8240, or the so-called "sin taxes" law. The Court, speaking again through Justice
Mendoza, dismissed Mr. Arroyo's petition, arguing in the main that courts are denied the
power to inquire into allegations that, in enacting a law, a House of Congress failed to comply
with its own rules, in the absence of showing that there was a violation of a constitutional
provision or the rights of private individuals. Concurring with the majority opinion, I
discerned a need to explain my position then because of possible misinterpretation. I was
very emphatic that I did not abandon my position in Tolentino, the facts as presented
in Arroyo being radically different from the former. In keeping with my view that judicial
review is permissible only to uphold the Constitution, I pointed out that the legislative rules
allegedly violated were purely internal and had no direct or reasonable nexus to the
requirements and proscriptions of the Constitution in the passage of a bill which would
otherwise warrant the Court's intervention.

In the instant case, at the risk of being repetitious, I again take a similar stand as the ones I
made in the two cited cases.

Although this case involves the question of who is the rightful occupant of a Senate "office"
and does not deal with the passage of a bill or the observance of internal rules for the
Senate's conduct of its business, the same ground as I previously invoked may justify the
Court's refusal to pry into the procedures of the Senate. There is to me no constitutional
breach which has been made and, ergo, there is nothing for this Court to uphold. The
interpretation placed by petitioners on Section 16 (1), Article VI of the 1987 Constitution
clearly does not find support in the text thereof. Expressium facit cessare tacitum. What is
expressed puts an end to that which is implied. The majority vote required for the election of

12
a Senate President and a Speaker of the House of Representatives speaks only of such
number or quantity of votes for an aspirant to be lawfully elected as such. There is here no
declaration that by so electing, each of the two Houses of Congress is thereby divided into
camps called the "majority" and the "minority." In fact, the "offices" of Majority Floor Leader
and Minority Floor Leader are not explicitly provided for as constitutional offices. As pointed
out by my esteemed colleague, Justice Artemio V. Panganiban, who penned the herein
majority opinion, even on the theory that under paragraph 2, Section 16 (1) of Article VI of the
Constitution, each House shall choose such other officers as it may deem necessary, still
"the method of choosing who will be such officers is merely a derivative of the exercise of
the prerogative conferred by the aforequoted constitutional provision." With the prerogative
being, therefore, bestowed upon the Senate, whatever differences the parties may have
against each other must be settled in their own turf and the Court, conscious as it is of its
constitutionally-delineated powers, will not take a perilous move to overstep the same.

VITUG, J., separate opinion;

The 1987 Constitution, like the counterpart 1935 and 1973 Constitutions, has continued to be
implicit in its recognition of the time-honored precept of separation of powers which enjoins
upon each of the three co-equal and independent, albeit coordinate, branches of the
government — the Legislative, the Executive and the Judiciary — proper acknowledgment
and respect for each other. The Supreme Court, said to be holding neither the "purse" (held
by Congress) nor the "sword" (held by the Executive) but serving as the balance wheel in the
State governance, functions both as the tribunal of last resort and as the Constitutional Court
of the nation.1 Peculiar, however, to the present Constitution, specifically under Article VII,
Section 1, thereof, is the extended jurisdiction of judicial power that now explicitly allows the
determination of "whether or not there has been grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of the
government."2 This expanded concept of judicial power seems to have been dictated by the
martial law experience and to be an immediate reaction to the abuse in the frequent recourse
to the political question doctrine that in no small measure has emasculated the Court. The
term "political question," in this context, refers to matters which, under the Constitution, are
to be decided by the people in their sovereign capacity or in regard to which discretionary
authority has been delegated to the legislative or executive branch of the government.

The Supreme Court, nevertheless, should not be thought of as having been tasked with the
awesome responsibility of overseeing the entire bureaucracy. I find it here opportune to
reiterate what I have stated inTolentino vs. Secretary of Finance,3 viz:

I cannot yet concede to the novel theory, so challengingly provocative as it

might be, that under the 1987 Constitution the Court may now at good liberty
intrude, in the guise of the people's imprimatur, into every affair of
government. What significance can still then remain, I ask, of the time honored
and widely acclaimed principle of separation of powers if, at every turn, the
Court allows itself to pass upon at will the disposition of a co-equal,
independent and coordinate branch in our system of government. I dread to
think of the so varied uncertainties that such an undue interference can lead
to. The respect for long standing doctrines in our jurisprudence, nourished
through time, is one of maturity, not timidity, of stability rather than
quiescence.

Pervasive and limitless, such as it, may seem to be, judicial power still succumbs to
the paramount doctrine of separation of powers. Congress is the branch of
government, composed of the representatives of the people, that lays down the
policies of government and provides the direction that the nation must take. The
Executive carries out that mandate. Certainly, the Court will not negate that which is
done by these, co-equal and co-ordinate branches merely because of a perceived
case of grave abuse of discretion on their part, clearly too relative a phrase to be its
own sentinel against misuse, even as it will not hesitate to wield the power if that
abuse becomes all too clear. The exercise of judicial statesmanship, not judicial
tyranny, is what has been envisioned by and institutionalized in the 1987 Constitution.

13
There is no harnbook rule by which grave abuse of discretion may be determined. The
provision was evidently couched in general terms to make it malleable to judicial
interpretation in the light of any contemporary or emerging millieu. In its normal concept, the
term has been said to imply capricious and whimsical exercise of judgment, amounting, to
lack or excess of jurisdiction, or at the power is exercised in an arbitrary or despotic manner
such as by reason of passion or personal hostility. When the question, however, pertains to
an affair internal to either of Congress or the Executive, I would subscribe to thedictum,
somewhat made implicit in my understanding of Arroyo vs. De Venecia,4 that unless an
infringement of any specific Constitutional proscription thereby inheres the Court will not
deign substitute its own judgment over that of any of the other two branches of government.
Verily, in this situation, it is an impairment or a clear disregard of a specific constitutional
precept or provision that can unbolt the steel door for judicial intervention.

In the instant settings, I find insufficient indication to have the case hew to the above rule.

Accordingly, I vote for the dismissal of the petition.

Separate Opinions

MENDOZA, J., concurring in the judgment and dissenting in part;

I concur in the judgment of the Court, but I disagree that "[it] has jurisdiction over the petition
[in this case] to determine whether the Senate or its officials committed a violation of the
Constitution or gravely abused their discretion in the exercise of their functions and
prerogatives."1

The Court has no jurisdiction over this case. The question who constitute the minority in the
Senate entitled to elect the minority leader of that chamber is political. It respects the internal
affairs of a coequal department of the government and is thus addressed solely to that
august body.

Courts have no power to inquire into the internal organization and business of a house of
Congress except as the question affects the rights of third parties or a specific constitutional
limitation is involved.

For this reason this Court has declined to take cognizance of cases involving the discipline
of members2 of the legislature and the application and interpretation of the rules of procedure
of a house.3 For indeed, these matters pertain to the internal government of Congress and are
within its exclusive jurisdiction.

Dean Sinco has pointed out that the Speaker of the House of Representatives and the
President of the Senate are not state officers. They do not attain these positions by popular
vote but only by the vote of their respective chambers. They receive their mandate as such
not from the voters but from their peers in the house. While their offices are a constitutional
creation, nevertheless they are only legislative officers. It is their position as members of
Congress which gives them the status of state officers. As presiding officers of their
respective chambers, their election as well as removal is determined by the vote of the
majority of the members of the house to which they belong.4 Thus, Art VI, §16(1) of the
Constitution provides:

The Senate shall elect its President and the of Representatives its Speaker, by
a majority vote of all its respective Members.

Each House shall choose such other officers as it may deem necessary.

This is likewise true of the "other officers" of each house whose election and removal
rest solely within the prerogative of the members and is no concern of the courts.

Indeed, in those cases in which this Court took cognizance of matters pertaining to the
internal government of each house, infringements of specific constitutional limitations were
alleged.

14
In Avelino v. Cuenco,5 the question was whether with only 12 senators present there was a
quorum for the election of the Senate President, considering that, of the 24 members, one
was in the hospital while another one was abroad. The case called for an interpretation of Art.
VI, §10(2) of the 1935 Constitution which provided that "A majority of each House shall
constitute a quorum to do business. . . ." While initially declining to assume jurisdiction, this
Court finally took cognizance of the matter. As Justice Perfecto, whose separate opinion in
support of the assumption of jurisdiction was one of the reasons which persuaded the Court
to intervene in the Senate imbroglio, stated, "Whether there was a quorum or not in the
meeting of twelve Senators . . . is a question that calls for the interpretation, application and
enforcement of an express and specific provision of the Constitution."6 In his view, "The word
quorum is a mathematical word. It has, as such, a precise and exact mathematical meaning. A
majority means more than one-half (1/2)." 7

In Tañada v. Cuenco,8 the question was whether the majority could fill the seats intended for
the minority party in the Senate Electoral Tribunal when there are not enough minority
members in the Senate. Again, the question was governed by a specific provision (Art. VI,
§11) of the 1935 charter which provided that the Electoral Tribunals of each house should be
composed of "nine Members, three of whom shall be Justices of the Supreme Court . . . I and
the remaining six shall be Members of the Senate or of the House of Representatives, as the
case may be, who shall be chosen by each House, three upon the nomination of the party
having the largest number of votes and three of the party having the second largest number
of votes therein." There was, therefore, a specific constitutional provision to be applied.

The cases9 concerning the composition of the Commission on Appointments likewise

involved the mere application of a constitutional provision, specifically Art. VI, §18 of the
present Constitution which provides that the Commission shall be composed of "twelve
Senators and twelve Members of the House of Representatives, elected by each House on the
basis of proportional representation from the political parties and parties or organizations
registered under the party-list system represented therein." Undoubtedly, the Court had
jurisdiction over the cases.

On the other hand, as long as the proportional representation of political parties and
organizations is observed the Court has held itself to be without jurisdiction over the choice
of nominees. In Cabili v. Francisco, 10 it declined to take cognizance of a quo warranto suit
seeking to annul the recomposition of the Senate representation in the Commission and to
reinstate a particular senator after satisfying itself that such recomposition of the Senate
representation was not a "departure from the constitution mandate requiring proportional
representation of the political organizations in the Commission on Appointments."

It is true that in Cunanan v. Tan 11 this Court took cognizance of the case which involved the
reorganization of the Commission as a result of the realignment of political forces in the
House of Representatives and the formation of a temporary alliance. But the Court's decision
was justified because the case actually involved the right of a third party whose nomination
by the President had been rejected by the reorganized Commission. As held in Pacete v. The
Secretary of the Commission on Appointments. 12 where the construction to be given to a rule
affects persons other than members of the legislative body, the question presented is judicial
in character.

In contrast to the specific constitutional limitations involved in the foregoing cases, beyond
providing that the Senate and the House of Representatives shall elect a President and
Speaker, respectively, and such other officers as each house shall determine "by a majority
vote of all [their] respective Members," the Constitution leaves everything else to each house
of Congress. Such matters are political and are left solely to the judgment of the legislative
department of the government.

This case involves neither an infringement of specific constitutional limitations nor a

violation of the rights of a party not a member of Congress. This Court has jurisdiction over
this case only in the sense that determining whether the question involved is reserved to
Congress is itself an exercise of jurisdiction in the same way that a court which dismisses a
case for lack of jurisdiction must in a narrow sense have jurisdiction since it cannot dismiss
the case if it were otherwise. The determination of whether the question involved is
justiciable or not is in itself a process of constitutional interpretation. This is the great lesson
ofMarbury v. Madison 13 in which the U.S. Supreme Court, while affirming its power of review,
in the end held itself to be without jurisdiction because the Judiciary Act of 1789 granting it

15
jurisdiction over that case was unconstitutional. In other words, a court doing a Marbury v.
Madison has no jurisdiction except to declare itself without jurisdiction over the case.

I vote to dismiss the petition in this case for lack of jurisdiction.

ROMERO, J., separate opinion;

"Loyalty to petrified opinion never yet broke a chain or freed a human soul."

These words vividly inscribed just beneath Mark Twain's bust at the Hall of Fame veritably
speaks about the creativity and dynamism which ought to characterize our perspective of
things. It instructs us to broaden our horizon that we may not be held captive by ignorance.
Free and robust thinking is the imperative.

But there are times when one has to render fealty to certain fundamental precepts and I
believe that this occasion presents an opportunity to do so. Thus, as I join the majority and
cast my vote today for the denial of the instant petition, may I just be allowed to reiterate
jurisprudential postulates which I have long embraced, not for the sake of "loyalty to petrified
opinion" but to stress consistency in doctrine in the hope that all future disputes of this
nature may be similarly resolved in this manner.

This is not actually the first time that the Court has been invited to resolve a matter
originating from the internal processes undertaken by a co-equal branch of government,
more particularly the Senate in this case. Earlier, in the landmark case of Tolentino v.
Secretary of Finance, et al.,1 we were confronted, among other things, by the issue of whether
a significant tax measure namely, Republic Act. No. 7716 (Expanded Value-Added Tax Law),
went through the legislative mill in keeping with the constitutionally-mandated procedure for
the passage of bills. Speaking through Justice Vicente V. Mendoza, the majority upheld the
tax measure's validity, relying on the enrolled bill theory and the view that the Court is not the
appropriate forum to enforce internal legislative rules supposedly violated when the bill was
being passed by Congress. I took a different view, however, from the majority because of
what I felt was a sweeping reliance on said doctrines without giving due regard to the
peculiar facts of the case. I underscored that these principles may not be applied where the
internal legislative rules would breach the Constitution which this Court has a solemn duty to
uphold. It was my position then that the introduction of several provisions in the Bicameral
Committee Report violated the constitutional proscription against any amendment to a bill
upon the last reading thereof and which this Court, in the exercise of its judicial power, can
properly inquire into without running afoul of the principle of separation of powers.

Last year,2 Arroyo, et al. v. de Venecia, et al.3 presented an opportunity for me to clarify my
position further. In that case, Congressman Joker Arroyo filed a petition before the Court
complaining that during a session by the House of Representatives, he was effectively
prevented from raising the question of quorum which to him tainted the validity of Republic
Act No. 8240, or the so-called "sin taxes" law. The Court, speaking again through Justice
Mendoza, dismissed Mr. Arroyo's petition, arguing in the main that courts are denied the
power to inquire into allegations that, in enacting a law, a House of Congress failed to comply
with its own rules, in the absence of showing that there was a violation of a constitutional
provision or the rights of private individuals. Concurring with the majority opinion, I
discerned a need to explain my position then because of possible misinterpretation. I was
very emphatic that I did not abandon my position in Tolentino, the facts as presented
in Arroyo being radically different from the former. In keeping with my view that judicial
review is permissible only to uphold the Constitution, I pointed out that the legislative rules
allegedly violated were purely internal and had no direct or reasonable nexus to the
requirements and proscriptions of the Constitution in the passage of a bill which would
otherwise warrant the Court's intervention.

In the instant case, at the risk of being repetitious, I again take a similar stand as the ones I
made in the two cited cases.

Although this case involves the question of who is the rightful occupant of a Senate "office"
and does not deal with the passage of a bill or the observance of internal rules for the
Senate's conduct of its business, the same ground as I previously invoked may justify the

16
Court's refusal to pry into the procedures of the Senate. There is to me no constitutional
breach which has been made and, ergo, there is nothing for this Court to uphold. The
interpretation placed by petitioners on Section 16 (1), Article VI of the 1987 Constitution
clearly does not find support in the text thereof. Expressium facit cessare tacitum. What is
expressed puts an end to that which is implied. The majority vote required for the election of
a Senate President and a Speaker of the House of Representatives speaks only of such
number or quantity of votes for an aspirant to be lawfully elected as such. There is here no
declaration that by so electing, each of the two Houses of Congress is thereby divided into
camps called the "majority" and the "minority." In fact, the "offices" of Majority Floor Leader
and Minority Floor Leader are not explicitly provided for as constitutional offices. As pointed
out by my esteemed colleague, Justice Artemio V. Panganiban, who penned the herein
majority opinion, even on the theory that under paragraph 2, Section 16 (1) of Article VI of the
Constitution, each House shall choose such other officers as it may deem necessary, still
"the method of choosing who will be such officers is merely a derivative of the exercise of
the prerogative conferred by the aforequoted constitutional provision." With the prerogative
being, therefore, bestowed upon the Senate, whatever differences the parties may have
against each other must be settled in their own turf and the Court, conscious as it is of its
constitutionally-delineated powers, will not take a perilous move to overstep the same.

VITUG, J., separate opinion;

The 1987 Constitution, like the counterpart 1935 and 1973 Constitutions, has continued to be
implicit in its recognition of the time-honored precept of separation of powers which enjoins
upon each of the three co-equal and independent, albeit coordinate, branches of the
government — the Legislative, the Executive and the Judiciary — proper acknowledgment
and respect for each other. The Supreme Court, said to be holding neither the "purse" (held
by Congress) nor the "sword" (held by the Executive) but serving as the balance wheel in the
State governance, functions both as the tribunal of last resort and as the Constitutional Court
of the nation.1 Peculiar, however, to the present Constitution, specifically under Article VII,
Section 1, thereof, is the extended jurisdiction of judicial power that now explicitly allows the
determination of "whether or not there has been grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of the
government."2 This expanded concept of judicial power seems to have been dictated by the
martial law experience and to be an immediate reaction to the abuse in the frequent recourse
to the political question doctrine that in no small measure has emasculated the Court. The
term "political question," in this context, refers to matters which, under the Constitution, are
to be decided by the people in their sovereign capacity or in regard to which discretionary
authority has been delegated to the legislative or executive branch of the government.

The Supreme Court, nevertheless, should not be thought of as having been tasked with the
awesome responsibility of overseeing the entire bureaucracy. I find it here opportune to
reiterate what I have stated inTolentino vs. Secretary of Finance,3 viz:

I cannot yet concede to the novel theory, so challengingly provocative as it

might be, that under the 1987 Constitution the Court may now at good liberty
intrude, in the guise of the people's imprimatur, into every affair of
government. What significance can still then remain, I ask, of the time honored
and widely acclaimed principle of separation of powers if, at every turn, the
Court allows itself to pass upon at will the disposition of a co-equal,
independent and coordinate branch in our system of government. I dread to
think of the so varied uncertainties that such an undue interference can lead
to. The respect for long standing doctrines in our jurisprudence, nourished
through time, is one of maturity, not timidity, of stability rather than
quiescence.

Pervasive and limitless, such as it, may seem to be, judicial power still succumbs to
the paramount doctrine of separation of powers. Congress is the branch of
government, composed of the representatives of the people, that lays down the
policies of government and provides the direction that the nation must take. The
Executive carries out that mandate. Certainly, the Court will not negate that which is
done by these, co-equal and co-ordinate branches merely because of a perceived
case of grave abuse of discretion on their part, clearly too relative a phrase to be its

17
 own sentinel against misuse, even as it will not hesitate to wield the power if that
abuse becomes all too clear. The exercise of judicial statesmanship, not judicial
tyranny, is what has been envisioned by and institutionalized in the 1987 Constitution.

There is no harnbook rule by which grave abuse of discretion may be determined. The
provision was evidently couched in general terms to make it malleable to judicial
interpretation in the light of any contemporary or emerging millieu. In its normal concept, the
term has been said to imply capricious and whimsical exercise of judgment, amounting, to
lack or excess of jurisdiction, or at the power is exercised in an arbitrary or despotic manner
such as by reason of passion or personal hostility. When the question, however, pertains to
an affair internal to either of Congress or the Executive, I would subscribe to thedictum,
somewhat made implicit in my understanding of Arroyo vs. De Venecia,4 that unless an
infringement of any specific Constitutional proscription thereby inheres the Court will not
deign substitute its own judgment over that of any of the other two branches of government.
Verily, in this situation, it is an impairment or a clear disregard of a specific constitutional
precept or provision that can unbolt the steel door for judicial intervention.

In the instant settings, I find insufficient indication to have the case hew to the above rule.

Accordingly, I vote for the dismissal of the petition.

FACTS:

On July 27, 1998, the Senate of the Philippines convened for the first regular session of the 11th
Congress. On the agenda for the day was the election of officers. Senator Francisco S. Tatad and
Senator Marcelo B. Fernan were nominated for the position of Senate President. By a vote of 20 to 2,
Senator Fernan was duly elected President of the Senate.

Thereafter, Senator Tatad manifested, with the agreement of Senator Miriam Defensor Santiago, he was
assuming the position of minority leader. He explained that those who had voted for Senator Fernan
comprised the majority while those who voted for him, belonged to the minority. During the discussion,
Senator Juan M. Flavier also manifested that the senators belonging to the LAKAS-NUCD-UMDP --
numbering 7, and, thus, also a minority -- had chosen Senator Teofisto T. Guingona, Jr. as minority
leader. No consensus was arrived at during the following days of session.

On July 30, 1998, the majority leader, informed the body that he received a letter from the 7 members of
the LAKAS-NUCD-UMDP, stating that they had elected Senator Guingona as minority leader. The
Senated President then recognized Senator Guingona as minority leader of the Senate.

The following day, Senators Santiago and Tatad filed before the Supreme Court a petition for quo
warranto alleging that Senator Guingona has been usurping, unlawfully holding and exercising the
position of Senate minorit leader, a position that, according to them, rightfully belongs to Senator Tatad.

ISSUES:
1. Does the Supreme Court have jurisdiction over the petition?
2. Was there an actual violation of the Constitution?
3. Was Respondent Guingona usurping, unlawfully holding and exercising the position of
Senate minority leader?
4. Did Respondent Fernan act with grave abuse of discretion in recognizing Respondent
Guingona as the minority leader?
RULING:

First Issue: Court's Jurisdiction

In the instant controversy, the petitioners claim that Section 16 (1), Article VI of the Constitution has not
been observed in the selection of the Senate minority leader. They also invoke the Court’s judicial power
“to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction” on the part of respondents.

The Court took jurisdiction over the petition stating that It is well within the power and jurisdiction of the
Court to inquire whether indeed the Senate or its officials committed a violation of the Constitution or
gravely abused their discretion in the exercise of their functions and prerogatives.

Second Issue: Violation of the Constitution

18
Petitioners claim that there was a violation of the Constitution when the Senate President recognized
Senator Guingona as minority leader.

The Court, however, did not find any violation since all that the Charter says is that "[e]ach House shall
choose such other officers as it may deem necessary." The court held that, the method of choosing who
will be such other officers is merely a derivative of the exercise of the prerogative conferred by the
aforequoted constitutional provision. Therefore, such method must be prescribed by the Senate itself, not
by this Court.

Notably, Rules I and II of the Rules of the Senate do not provide for the positions of majority and minority
leaders. Neither is there an open clause providing specifically for such offices and prescribing the manner
of creating them or of choosing the holders thereof. However, such offices, by tradition and long practice,
are actually extant. But, in the absence of constitutional or statutory guidelines or specific rules, this
Court is devoid of any basis upon which to determine the legality of the acts of the Senate relative
thereto. On grounds of respect for the basic concept of separation of powers, courts may not intervene in
the internal affairs of the legislature.

Third Issue: Usurpation of Office

For a quo warranto prosper, the person suing must show that he or she has a clear right to the contested
office or to use or exercise the functions of the office allegedly usurped or unlawfully held by the
respondent. In this case, petitioners present no sufficient proof of a clear and indubitable franchise to the
office of the Senate minority leader. The specific norms or standards that may be used in determining
who may lawfully occupy the disputed position has not been laid down by the Constitution, the statutes, or
the Senate itself in which the power has been vested. Without any clear-cut guideline, in no way can it be
said that illegality or irregularity tainted Respondent Guingona’s assumption and exercise of the powers of
the office of Senate minority leader. Furthermore, no grave abuse of discretion has been shown to
characterize any of his specific acts as minority leader.

Fourth Issue: Fernan's Recognition of Guingona

Supreme Court held that Respondent Fernan did not gravely abuse his discretion as Senate President in
recognizing Respondent Guingona as the minority leader. The latter belongs to one of the minority
parties in the Senate, the Lakas-NUCD-UMDP. By unanimous resolution of the members of this party
that he be the minority leader, he was recognized as such by the Senate President. Such formal
recognition by Respondent Fernan came only after at least two Senate sessions and a caucus, wherein
both sides were liberally allowed to articulate their standpoints.

Under these circumstances, the Court believed that the Senate President cannot be accused of
“capricious or whimsical exercise of judgment” or of “an arbitrary and despotic manner by reason of
passion or hostility.” Where no provision of the Constitution, the laws or even the rules of the Senate has
been clearly shown to have been violated, disregarded or overlooked, grave abuse of discretion cannot
be imputed to Senate officials for acts done within their competence and authority.

The Petition is DISMISSED.

Facts: The Senate convening on 27 July 1998, Senator Marcelo Fernan and Francisco Tatad
were nominated for president. Fernan won by a vote of 20 to 2 and declared President of
Senate. Senator Ople was president pro tempore and Senator Drilon as majority leader
were likewise elected. Senator Tatad manifested that he will assume minority leader. This
was contested by Senator Flavier stating that their party being the minority group will
determine the holder of the said post. Thereafter, they voted for Senator Guingona. Hence
the petition for quo warranto by Tatad.
Issue: Whether or not there was an actual violation of the constitution in the election of
Senate officers?
Decision: Petition dismissed. The term “majority” simple means “the number greater than
half or more than half of any total.” The plain and unambiguous words of the subject
constitutional clause mean that the Senate President must obtain the votes of more than
one half of all the Senators.

19
 FACTS:

During the election of officers in the Senate, Sen. Marcelo Fernan and Sen. Tatad were both
nominated to the position of Senate President. By a vote of 20 to 2, Sen. Fernan was declared the
duly elected Senate President. Thereafter, Sen. Tatad manifested that, with the agreement of Sen.
Santiago, allegedly the only other member of the minority, he was assuming position of minority
leader. He explained that those who had voted for Sen. Fernan comprised the “majority,” while
only those who had voted for him, the losing nominee, belonged to the “minority.” However,
senators belonging to the Lakas-NUCD-UMDP Party – number 7 and, thus, also a minority –
had chosen Sen. Guingona as the minority leader. Thus, Petitioners filed this case for quo
warranto.

ISSUE:

o Whether or not there was an actual violation of the Constitution in the selection of
respondent as Senate minority leader
o Whether or not courts have the power to intervene in matters of legislative procedure

RULING:

The petition fails.

The meaning of majority vis-a-vis minority

The term “majority” has been judicially defined a number of times. When referring to a certain
number out of a total or aggregate, it simply “means the number greater than half or more than
half of any total.” The plain and unambiguous words of the subject constitutional clause simply
mean that the Senate President must obtain the votes of more than one half of all the senators.
Not by any construal does it thereby delineate who comprise the “majority,” much less the
“minority,” in the said body. And there is no showing that the framers of our Constitution had in
mind other than the usual meanings of these terms.

In effect, while the Constitution mandates that the President of the Senate must be elected by a
number constituting more than one half of all the members thereof, it does not provide that the
members who will not vote for him shall ipso facto constitute the “minority,” who could thereby
elect the minority leader. Verily, no law or regulation states that the defeated candidate shall
automatically become the minority leader.

xxx

Majority may also refer to “the group, party, or faction with the larger number of votes,” not
necessarily more than one half. This is sometimes referred to as plurality. In contrast, minority is
“a group, party, or faction with a smaller number of votes or adherents than the majority.”
Between two unequal parts or numbers comprising a whole or totality, the greater number would
obviously be the majority, while the lesser would be the minority. But where there are more than
two unequal groupings, it is not as easy to say which is the minority entitled to select the leader
representing all the minorities. In a government with a multi-party system such as in the
Philippines (as pointed out by petitioners themselves), there could be several minority parties,
one of which has to be identified by the Comelec as the “dominant minority party” for purposes
of the general elections. In the prevailing composition of the present Senate, members either
belong to different political parties or are independent. No constitutional or statutory provision
prescribe which of the many minority groups or the independents or a combination thereof has
the right to select the minority leader.

Constitution silent on the manner of selecting officers in Congress other than Senate President
and House Speaker

20
While the Constitution is explicit on the manner of electing a Senate President and a House
Speaker, it is, however, dead silent on the manner of selecting the other officers in both
chambers of Congress. All that the Charter says is that “[e]ach House shall choose such other
officers as it may deem necessary.” To our mind, the method of choosing who will be such other
officers is merely a derivative of the exercise of the prerogative conferred by the aforequoted
constitutional provision. Therefore, such method must be prescribed by the Senate itself, not by
this Court.

In this regard, the Constitution vests in each house of Congress the power “to determine the rules
of its proceedings.” xxx

Separation of powers: Courts may not intervene in the internal affairs of legislature

Notably, the Rules of the Senate do not provide for the positions of majority and minority
leaders. Neither is there an open clause providing specifically for such offices and prescribing
the manner of creating them or of choosing the holders thereof. At any rate, such offices, by
tradition and long practice, are actually extant. But, in the absence of constitutional or statutory
guidelines or specific rules, this Court is devoid of any basis upon which to determine the
legality of the acts of the Senate relative thereto. On grounds of respect for the basic concept of
separation of powers, courts may not intervene in the internal affairs of the legislature; it is not
within the province of courts to direct Congress how to do its work. Paraphrasing the words of
Justice Florentino P. Feliciano, this Court is of the opinion that where no specific, operable
norms and standards are shown to exist, then the legislature must be given a real and effective
opportunity to fashion and promulgate as well as to implement them, before the courts may
intervene.

Legislative rules, unlike statutory laws, are matters of procedure and are subject to revocation,
modification and waiver by the body adopting them

Needless to state, legislative rules, unlike statutory laws, do not have the imprints of permanence
and obligatoriness during their effectivity. In fact, they “are subject to revocation, modification
or waiver at the pleasure of the body adopting them.” Being merely matters of procedure, their
observance are of no concern to the courts, for said rules may be waived or disregarded by the
legislative body at will, upon the concurrence of a majority.

In view of the foregoing, Congress verily has the power and prerogative to provide for such
officers as it may deem. And it is certainly within its own jurisdiction and discretion to prescribe
the parameters for the exercise of this prerogative. This Court has no authority to interfere and
unilaterally intrude into that exclusive realm, without running afoul of constitutional principles
that it is bound to protect and uphold -- the very duty that justifies the Court’s being.
Constitutional respect and a becoming regard for the sovereign acts of a coequal branch prevents
this Court from prying into the internal workings of the Senate. To repeat, this Court will be
neither a tyrant nor a wimp; rather, it will remain steadfast and judicious in upholding the rule
and majesty of the law.

To accede, then, to the interpretation of petitioners would practically amount to judicial

legislation, a clear breach of the constitutional doctrine of separation of powers. If for this
argument alone, the petition would easily fail.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-45081 July 15, 1936

21
JOSE A. ANGARA, petitioner,
vs.
THE ELECTORAL COMMISSION, PEDRO YNSUA, MIGUEL CASTILLO, and DIONISIO C.
MAYOR,respondents.

Godofredo Reyes for petitioner.

Office of the Solicitor General Hilado for respondent Electoral Commission.
Pedro Ynsua in his own behalf.
No appearance for other respondents.

LAUREL, J.:

This is an original action instituted in this court by the petitioner, Jose A. Angara, for the issuance of
a writ of prohibition to restrain and prohibit the Electoral Commission, one of the respondents, from
taking further cognizance of the protest filed by Pedro Ynsua, another respondent, against the
election of said petitioner as member of the National Assembly for the first assembly district of the
Province of Tayabas.

The facts of this case as they appear in the petition and as admitted by the respondents are as
follows:

(1) That in the elections of September 17, 1935, the petitioner, Jose A. Angara, and the
respondents, Pedro Ynsua, Miguel Castillo and Dionisio Mayor, were candidates voted for
the position of member of the National Assembly for the first district of the Province of
Tayabas;

(2) That on October 7, 1935, the provincial board of canvassers, proclaimed the petitioner as
member-elect of the National Assembly for the said district, for having received the most
number of votes;

(3) That on November 15, 1935, the petitioner took his oath of office;

(4) That on December 3, 1935, the National Assembly in session assembled, passed the
following resolution:

[No. 8]

RESOLUCION CONFIRMANDO LAS ACTAS DE AQUELLOS DIPUTADOS

CONTRA QUIENES NO SE HA PRESENTADO PROTESTA.

Se resuelve: Que las actas de eleccion de los Diputados contra quienes no

se hubiere presentado debidamente una protesta antes de la adopcion de la
presente resolucion sean, como por la presente, son aprobadas y
confirmadas.

Adoptada, 3 de diciembre, 1935.

(5) That on December 8, 1935, the herein respondent Pedro Ynsua filed before the Electoral
Commission a "Motion of Protest" against the election of the herein petitioner, Jose A.
Angara, being the only protest filed after the passage of Resolutions No. 8 aforequoted, and
praying, among other-things, that said respondent be declared elected member of the
National Assembly for the first district of Tayabas, or that the election of said position be
nullified;

(6) That on December 9, 1935, the Electoral Commission adopted a resolution, paragraph 6
of which provides:

6. La Comision no considerara ninguna protesta que no se haya presentado en o

antes de este dia.

(7) That on December 20, 1935, the herein petitioner, Jose A. Angara, one of the
respondents in the aforesaid protest, filed before the Electoral Commission a "Motion to
Dismiss the Protest", alleging (a) that Resolution No. 8 of Dismiss the Protest", alleging (a)

22
 that Resolution No. 8 of the National Assembly was adopted in the legitimate exercise of its
constitutional prerogative to prescribe the period during which protests against the election of
its members should be presented; (b) that the aforesaid resolution has for its object, and is
the accepted formula for, the limitation of said period; and (c) that the protest in question was
filed out of the prescribed period;

(8) That on December 27, 1935, the herein respondent, Pedro Ynsua, filed an "Answer to the
Motion of Dismissal" alleging that there is no legal or constitutional provision barring the
presentation of a protest against the election of a member of the National Assembly after
confirmation;

(9) That on December 31, 1935, the herein petitioner, Jose A. Angara, filed a "Reply" to the
aforesaid "Answer to the Motion of Dismissal";

(10) That the case being submitted for decision, the Electoral Commission promulgated a
resolution on January 23, 1936, denying herein petitioner's "Motion to Dismiss the Protest."

The application of the petitioner sets forth the following grounds for the issuance of the writ prayed
for:

(a) That the Constitution confers exclusive jurisdiction upon the electoral Commission solely
as regards the merits of contested elections to the National Assembly;

(b) That the Constitution excludes from said jurisdiction the power to regulate the
proceedings of said election contests, which power has been reserved to the Legislative
Department of the Government or the National Assembly;

(c) That like the Supreme Court and other courts created in pursuance of the Constitution,
whose exclusive jurisdiction relates solely to deciding the merits of controversies submitted
to them for decision and to matters involving their internal organization, the Electoral
Commission can regulate its proceedings only if the National Assembly has not availed of its
primary power to so regulate such proceedings;

(d) That Resolution No. 8 of the National Assembly is, therefore, valid and should be
respected and obeyed;

(e) That under paragraph 13 of section 1 of the ordinance appended to the Constitution and
paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress of the
United States) as well as under section 1 and 3 (should be sections 1 and 2) of article VIII of
the Constitution, this Supreme Court has jurisdiction to pass upon the fundamental question
herein raised because it involves an interpretation of the Constitution of the Philippines.

On February 25, 1936, the Solicitor-General appeared and filed an answer in behalf of the
respondent Electoral Commission interposing the following special defenses:

(a) That the Electoral Commission has been created by the Constitution as an instrumentality
of the Legislative Department invested with the jurisdiction to decide "all contests relating to
the election, returns, and qualifications of the members of the National Assembly"; that in
adopting its resolution of December 9, 1935, fixing this date as the last day for the
presentation of protests against the election of any member of the National Assembly, it
acted within its jurisdiction and in the legitimate exercise of the implied powers granted it by
the Constitution to adopt the rules and regulations essential to carry out the power and
functions conferred upon the same by the fundamental law; that in adopting its resolution of
January 23, 1936, overruling the motion of the petitioner to dismiss the election protest in
question, and declaring itself with jurisdiction to take cognizance of said protest, it acted in
the legitimate exercise of its quasi-judicial functions a an instrumentality of the Legislative
Department of the Commonwealth Government, and hence said act is beyond the judicial
cognizance or control of the Supreme Court;

(b) That the resolution of the National Assembly of December 3, 1935, confirming the
election of the members of the National Assembly against whom no protest had thus far
been filed, could not and did not deprive the electoral Commission of its jurisdiction to take
cognizance of election protests filed within the time that might be set by its own rules:

23
 (c) That the Electoral Commission is a body invested with quasi-judicial functions, created by
the Constitution as an instrumentality of the Legislative Department, and is not an "inferior
tribunal, or corporation, or board, or person" within the purview of section 226 and 516 of the
Code of Civil Procedure, against which prohibition would lie.

The respondent Pedro Ynsua, in his turn, appeared and filed an answer in his own behalf on March
2, 1936, setting forth the following as his special defense:

(a) That at the time of the approval of the rules of the Electoral Commission on December 9,
1935, there was no existing law fixing the period within which protests against the election of
members of the National Assembly should be filed; that in fixing December 9, 1935, as the
last day for the filing of protests against the election of members of the National Assembly,
the Electoral Commission was exercising a power impliedly conferred upon it by the
Constitution, by reason of its quasi-judicial attributes;

(b) That said respondent presented his motion of protest before the Electoral Commission on
December 9, 1935, the last day fixed by paragraph 6 of the rules of the said Electoral
Commission;

(c) That therefore the Electoral Commission acquired jurisdiction over the protest filed by
said respondent and over the parties thereto, and the resolution of the Electoral Commission
of January 23, 1936, denying petitioner's motion to dismiss said protest was an act within the
jurisdiction of the said commission, and is not reviewable by means of a writ of prohibition;

(d) That neither the law nor the Constitution requires confirmation by the National Assembly
of the election of its members, and that such confirmation does not operate to limit the period
within which protests should be filed as to deprive the Electoral Commission of jurisdiction
over protest filed subsequent thereto;

(e) That the Electoral Commission is an independent entity created by the Constitution,
endowed with quasi-judicial functions, whose decision are final and unappealable;

( f ) That the electoral Commission, as a constitutional creation, is not an inferior tribunal,

corporation, board or person, within the terms of sections 226 and 516 of the Code of Civil
Procedure; and that neither under the provisions of sections 1 and 2 of article II (should be
article VIII) of the Constitution and paragraph 13 of section 1 of the Ordinance appended
thereto could it be subject in the exercise of its quasi-judicial functions to a writ of prohibition
from the Supreme Court;

(g) That paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress
of the united States) has no application to the case at bar.

The case was argued before us on March 13, 1936. Before it was submitted for decision, the
petitioner prayed for the issuance of a preliminary writ of injunction against the respondent Electoral
Commission which petition was denied "without passing upon the merits of the case" by resolution of
this court of March 21, 1936.

There was no appearance for the other respondents.

The issues to be decided in the case at bar may be reduced to the following two principal
propositions:

1. Has the Supreme Court jurisdiction over the Electoral Commission and the subject matter
of the controversy upon the foregoing related facts, and in the affirmative,

2. Has the said Electoral Commission acted without or in excess of its jurisdiction in
assuming to the cognizance of the protest filed the election of the herein petitioner
notwithstanding the previous confirmation of such election by resolution of the National
Assembly?

We could perhaps dispose of this case by passing directly upon the merits of the controversy.
However, the question of jurisdiction having been presented, we do not feel justified in evading the
issue. Being a case primæ impressionis, it would hardly be consistent with our sense of duty to

24
overlook the broader aspect of the question and leave it undecided. Neither would we be doing
justice to the industry and vehemence of counsel were we not to pass upon the question of
jurisdiction squarely presented to our consideration.

The separation of powers is a fundamental principle in our system of government. It obtains not
through express provision but by actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own
sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct
that the Constitution intended them to be absolutely unrestrained and independent of each other.
The Constitution has provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government. For example, the Chief
Executive under our Constitution is so far made a check on the legislative power that this assent is
required in the enactment of laws. This, however, is subject to the further check that a bill may
become a law notwithstanding the refusal of the President to approve it, by a vote of two-thirds or
three-fourths, as the case may be, of the National Assembly. The President has also the right to
convene the Assembly in special session whenever he chooses. On the other hand, the National
Assembly operates as a check on the Executive in the sense that its consent through its
Commission on Appointments is necessary in the appointments of certain officers; and the
concurrence of a majority of all its members is essential to the conclusion of treaties. Furthermore, in
its power to determine what courts other than the Supreme Court shall be established, to define their
jurisdiction and to appropriate funds for their support, the National Assembly controls the judicial
department to a certain extent. The Assembly also exercises the judicial power of trying
impeachments. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively
checks the other departments in the exercise of its power to determine the law, and hence to declare
executive and legislative acts void if violative of the Constitution.

But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of
power to the executive, the legislative and the judicial departments of the government. The
overlapping and interlacing of functions and duties between the several departments, however,
sometimes makes it hard to say just where the one leaves off and the other begins. In times of social
disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or
marred, if not entirely obliterated. In cases of conflict, the judicial department is the only
constitutional organ which can be called upon to determine the proper allocation of powers between
the several departments and among the integral or constituent units thereof.

As any human production, our Constitution is of course lacking perfection and perfectibility, but as
much as it was within the power of our people, acting through their delegates to so provide, that
instrument which is the expression of their sovereignty however limited, has established a republican
government intended to operate and function as a harmonious whole, under a system of checks and
balances, and subject to specific limitations and restrictions provided in the said instrument. The
Constitution sets forth in no uncertain language the restrictions and limitations upon governmental
powers and agencies. If these restrictions and limitations are transcended it would be inconceivable
if the Constitution had not provided for a mechanism by which to direct the course of government
along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of
rights mere expressions of sentiment, and the principles of good government mere political
apothegms. Certainly, the limitation and restrictions embodied in our Constitution are real as they
should be in any living constitution. In the United States where no express constitutional grant is
found in their constitution, the possession of this moderating power of the courts, not to speak of its
historical origin and development there, has been set at rest by popular acquiescence for a period of
more than one and a half centuries. In our case, this moderating power is granted, if not expressly,
by clear implication from section 2 of article VIII of our constitution.

The Constitution is a definition of the powers of government. Who is to determine the nature, scope
and extent of such powers? The Constitution itself has provided for the instrumentality of the
judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it
does not assert any superiority over the other departments; it does not in reality nullify or invalidate
an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which that instrument secures and guarantees to them.
This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power
of judicial review under the Constitution. Even then, this power of judicial review is limited to actual
cases and controversies to be exercised after full opportunity of argument by the parties, and limited
further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction
could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to

25
actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of
wisdom, justice or expediency of legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the legislature is presumed to abide by
the Constitution but also because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as expressed through their
representatives in the executive and legislative departments of the governments of the government.

But much as we might postulate on the internal checks of power provided in our Constitution, it
ought not the less to be remembered that, in the language of James Madison, the system itself is not
"the chief palladium of constitutional liberty . . . the people who are authors of this blessing must also
be its guardians . . . their eyes must be ever ready to mark, their voice to pronounce . . . aggression
on the authority of their constitution." In the Last and ultimate analysis, then, must the success of our
government in the unfolding years to come be tested in the crucible of Filipino minds and hearts than
in consultation rooms and court chambers.

In the case at bar, the national Assembly has by resolution (No. 8) of December 3, 1935, confirmed
the election of the herein petitioner to the said body. On the other hand, the Electoral Commission
has by resolution adopted on December 9, 1935, fixed said date as the last day for the filing of
protests against the election, returns and qualifications of members of the National Assembly,
notwithstanding the previous confirmation made by the National Assembly as aforesaid. If, as
contended by the petitioner, the resolution of the National Assembly has the effect of cutting off the
power of the Electoral Commission to entertain protests against the election, returns and
qualifications of members of the National Assembly, submitted after December 3, 1935, then the
resolution of the Electoral Commission of December 9, 1935, is mere surplusage and had no effect.
But, if, as contended by the respondents, the Electoral Commission has the sole power of regulating
its proceedings to the exclusion of the National Assembly, then the resolution of December 9, 1935,
by which the Electoral Commission fixed said date as the last day for filing protests against the
election, returns and qualifications of members of the National Assembly, should be upheld.

Here is then presented an actual controversy involving as it does a conflict of a grave constitutional
nature between the National Assembly on the one hand, and the Electoral Commission on the other.
From the very nature of the republican government established in our country in the light of
American experience and of our own, upon the judicial department is thrown the solemn and
inescapable obligation of interpreting the Constitution and defining constitutional boundaries. The
Electoral Commission, as we shall have occasion to refer hereafter, is a constitutional organ, created
for a specific purpose, namely to determine all contests relating to the election, returns and
qualifications of the members of the National Assembly. Although the Electoral Commission may not
be interfered with, when and while acting within the limits of its authority, it does not follow that it is
beyond the reach of the constitutional mechanism adopted by the people and that it is not subject to
constitutional restrictions. The Electoral Commission is not a separate department of the
government, and even if it were, conflicting claims of authority under the fundamental law between
department powers and agencies of the government are necessarily determined by the judiciary in
justifiable and appropriate cases. Discarding the English type and other European types of
constitutional government, the framers of our constitution adopted the American type where the
written constitution is interpreted and given effect by the judicial department. In some countries
which have declined to follow the American example, provisions have been inserted in their
constitutions prohibiting the courts from exercising the power to interpret the fundamental law. This
is taken as a recognition of what otherwise would be the rule that in the absence of direct prohibition
courts are bound to assume what is logically their function. For instance, the Constitution of Poland
of 1921, expressly provides that courts shall have no power to examine the validity of statutes (art.
81, chap. IV). The former Austrian Constitution contained a similar declaration. In countries whose
constitutions are silent in this respect, courts have assumed this power. This is true in Norway,
Greece, Australia and South Africa. Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary Law to
constitutional Charter of the Czechoslovak Republic, February 29, 1920) and Spain (arts. 121-123,
Title IX, Constitutional of the Republic of 1931) especial constitutional courts are established to pass
upon the validity of ordinary laws. In our case, the nature of the present controversy shows the
necessity of a final constitutional arbiter to determine the conflict of authority between two agencies
created by the Constitution. Were we to decline to take cognizance of the controversy, who will
determine the conflict? And if the conflict were left undecided and undetermined, would not a void be
thus created in our constitutional system which may be in the long run prove destructive of the entire
framework? To ask these questions is to answer them. Natura vacuum abhorret, so must we avoid
exhaustion in our constitutional system. Upon principle, reason and authority, we are clearly of the
opinion that upon the admitted facts of the present case, this court has jurisdiction over the Electoral
Commission and the subject mater of the present controversy for the purpose of determining the
character, scope and extent of the constitutional grant to the Electoral Commission as "the sole

26
judge of all contests relating to the election, returns and qualifications of the members of the National
Assembly."

Having disposed of the question of jurisdiction, we shall now proceed to pass upon the second
proposition and determine whether the Electoral Commission has acted without or in excess of its
jurisdiction in adopting its resolution of December 9, 1935, and in assuming to take cognizance of
the protest filed against the election of the herein petitioner notwithstanding the previous
confirmation thereof by the National Assembly on December 3, 1935. As able counsel for the
petitioner has pointed out, the issue hinges on the interpretation of section 4 of Article VI of the
Constitution which provides:

"SEC. 4. There shall be an Electoral Commission composed of three Justice of the Supreme Court
designated by the Chief Justice, and of six Members chosen by the National Assembly, three of
whom shall be nominated by the party having the largest number of votes, and three by the party
having the second largest number of votes therein. The senior Justice in the Commission shall be its
Chairman. The Electoral Commission shall be the sole judge of all contests relating to the election,
returns and qualifications of the members of the National Assembly." It is imperative, therefore, that
we delve into the origin and history of this constitutional provision and inquire into the intention of its
framers and the people who adopted it so that we may properly appreciate its full meaning, import
and significance.

The original provision regarding this subject in the Act of Congress of July 1, 1902 (sec. 7, par. 5)
laying down the rule that "the assembly shall be the judge of the elections, returns, and qualifications
of its members", was taken from clause 1 of section 5, Article I of the Constitution of the United
States providing that "Each House shall be the Judge of the Elections, Returns, and Qualifications of
its own Members, . . . ." The Act of Congress of August 29, 1916 (sec. 18, par. 1) modified this
provision by the insertion of the word "sole" as follows: "That the Senate and House of
Representatives, respectively, shall be the sole judges of the elections, returns, and qualifications of
their elective members . . ." apparently in order to emphasize the exclusive the Legislative over the
particular case s therein specified. This court has had occasion to characterize this grant of power to
the Philippine Senate and House of Representatives, respectively, as "full, clear and complete"
(Veloso vs. Boards of Canvassers of Leyte and Samar [1919], 39 Phil., 886, 888.)

The first step towards the creation of an independent tribunal for the purpose of deciding contested
elections to the legislature was taken by the sub-committee of five appointed by the Committee on
Constitutional Guarantees of the Constitutional Convention, which sub-committee submitted a report
on August 30, 1934, recommending the creation of a Tribunal of Constitutional Security empowered
to hear legislature but also against the election of executive officers for whose election the vote of
the whole nation is required, as well as to initiate impeachment proceedings against specified
executive and judicial officer. For the purpose of hearing legislative protests, the tribunal was to be
composed of three justices designated by the Supreme Court and six members of the house of the
legislature to which the contest corresponds, three members to be designed by the majority party
and three by the minority, to be presided over by the Senior Justice unless the Chief Justice is also a
member in which case the latter shall preside. The foregoing proposal was submitted by the
Committee on Constitutional Guarantees to the Convention on September 15, 1934, with slight
modifications consisting in the reduction of the legislative representation to four members, that is,
two senators to be designated one each from the two major parties in the Senate and two
representatives to be designated one each from the two major parties in the House of
Representatives, and in awarding representation to the executive department in the persons of two
representatives to be designated by the President.

Meanwhile, the Committee on Legislative Power was also preparing its report. As submitted to the
Convention on September 24, 1934 subsection 5, section 5, of the proposed Article on the
Legislative Department, reads as follows:

The elections, returns and qualifications of the members of either house and all cases
contesting the election of any of their members shall be judged by an Electoral Commission,
constituted, as to each House, by three members elected by the members of the party
having the largest number of votes therein, three elected by the members of the party having
the second largest number of votes, and as to its Chairman, one Justice of the Supreme
Court designated by the Chief Justice.

The idea of creating a Tribunal of Constitutional Security with comprehensive jurisdiction as

proposed by the Committee on Constitutional Guarantees which was probably inspired by the

27
Spanish plan (art. 121, Constitution of the Spanish Republic of 1931), was soon abandoned in favor
of the proposition of the Committee on Legislative Power to create a similar body with reduced
powers and with specific and limited jurisdiction, to be designated as a Electoral Commission. The
Sponsorship Committee modified the proposal of the Committee on Legislative Power with respect
to the composition of the Electoral Commission and made further changes in phraseology to suit the
project of adopting a unicameral instead of a bicameral legislature. The draft as finally submitted to
the Convention on October 26, 1934, reads as follows:

(6) The elections, returns and qualifications of the Members of the National Assembly and all
cases contesting the election of any of its Members shall be judged by an Electoral
Commission, composed of three members elected by the party having the largest number of
votes in the National Assembly, three elected by the members of the party having the second
largest number of votes, and three justices of the Supreme Court designated by the Chief
Justice, the Commission to be presided over by one of said justices.

During the discussion of the amendment introduced by Delegates Labrador, Abordo, and others,
proposing to strike out the whole subsection of the foregoing draft and inserting in lieu thereof the
following: "The National Assembly shall be the soled and exclusive judge of the elections, returns,
and qualifications of the Members", the following illuminating remarks were made on the floor of the
Convention in its session of December 4, 1934, as to the scope of the said draft:

xxx xxx xxx

Mr. VENTURA. Mr. President, we have a doubt here as to the scope of the meaning of the
first four lines, paragraph 6, page 11 of the draft, reading: "The elections, returns and
qualifications of the Members of the National Assembly and all cases contesting the election
of any of its Members shall be judged by an Electoral Commission, . . ." I should like to ask
from the gentleman from Capiz whether the election and qualification of the member whose
elections is not contested shall also be judged by the Electoral Commission.

Mr. ROXAS. If there is no question about the election of the members, there is nothing to be
judged; that is why the word "judge" is used to indicate a controversy. If there is no question
about the election of a member, there is nothing to be submitted to the Electoral Commission
and there is nothing to be determined.

Mr. VENTURA. But does that carry the idea also that the Electoral Commission shall confirm
also the election of those whose election is not contested?

Mr. ROXAS. There is no need of confirmation. As the gentleman knows, the action of the
House of Representatives confirming the election of its members is just a matter of the rules
of the assembly. It is not constitutional. It is not necessary. After a man files his credentials
that he has been elected, that is sufficient, unless his election is contested.

Mr. VENTURA. But I do not believe that that is sufficient, as we have observed that for
purposes of the auditor, in the matter of election of a member to a legislative body, because
he will not authorize his pay.

Mr. ROXAS. Well, what is the case with regards to the municipal president who is elected?
What happens with regards to the councilors of a municipality? Does anybody confirm their
election? The municipal council does this: it makes a canvass and proclaims — in this case
the municipal council proclaims who has been elected, and it ends there, unless there is a
contest. It is the same case; there is no need on the part of the Electoral Commission unless
there is a contest. The first clause refers to the case referred to by the gentleman from
Cavite where one person tries to be elected in place of another who was declared elected.
From example, in a case when the residence of the man who has been elected is in
question, or in case the citizenship of the man who has been elected is in question.

However, if the assembly desires to annul the power of the commission, it may do so by
certain maneuvers upon its first meeting when the returns are submitted to the
assembly. The purpose is to give to the Electoral Commission all the powers exercised by
the assembly referring to the elections, returns and qualifications of the members. When
there is no contest, there is nothing to be judged.

28
 Mr. VENTURA. Then it should be eliminated.

Mr. ROXAS. But that is a different matter, I think Mr. Delegate.

Mr. CINCO. Mr. President, I have a similar question as that propounded by the gentleman
from Ilocos Norte when I arose a while ago. However I want to ask more questions from the
delegate from Capiz. This paragraph 6 on page 11 of the draft cites cases contesting the
election as separate from the first part of the sections which refers to elections, returns and
qualifications.

Mr. ROXAS. That is merely for the sake of clarity. In fact the cases of contested elections are
already included in the phrase "the elections, returns and qualifications." This phrase "and
contested elections" was inserted merely for the sake of clarity.

Mr. CINCO. Under this paragraph, may not the Electoral Commission, at its own instance,
refuse to confirm the elections of the members."

Mr. ROXAS. I do not think so, unless there is a protest.

Mr. LABRADOR. Mr. President, will the gentleman yield?

THE PRESIDENT. The gentleman may yield, if he so desires.

Mr. ROXAS. Willingly.

Mr. LABRADOR. Does not the gentleman from Capiz believe that unless this power is
granted to the assembly, the assembly on its own motion does not have the right to contest
the election and qualification of its members?

Mr. ROXAS. I have no doubt but that the gentleman is right. If this draft is retained as it is,
even if two-thirds of the assembly believe that a member has not the qualifications provided
by law, they cannot remove him for that reason.

Mr. LABRADOR. So that the right to remove shall only be retained by the Electoral
Commission.

Mr. ROXAS. By the assembly for misconduct.

Mr. LABRADOR. I mean with respect to the qualifications of the members.

Mr. ROXAS. Yes, by the Electoral Commission.

Mr. LABRADOR. So that under this draft, no member of the assembly has the right to
question the eligibility of its members?

Mr. ROXAS. Before a member can question the eligibility, he must go to the Electoral
Commission and make the question before the Electoral Commission.

Mr. LABRADOR. So that the Electoral Commission shall decide whether the election is
contested or not contested.

Mr. ROXAS. Yes, sir: that is the purpose.

Mr. PELAYO. Mr. President, I would like to be informed if the Electoral Commission has
power and authority to pass upon the qualifications of the members of the National Assembly
even though that question has not been raised.

Mr. ROXAS. I have just said that they have no power, because they can only judge.

In the same session, the first clause of the aforesaid draft reading "The election, returns and
qualifications of the members of the National Assembly and" was eliminated by the Sponsorship
Committee in response to an amendment introduced by Delegates Francisco, Ventura, Vinzons,

29
Rafols, Lim, Mumar and others. In explaining the difference between the original draft and the draft
as amended, Delegate Roxas speaking for the Sponsorship Committee said:

xxx xxx xxx

Sr. ROXAS. La diferencia, señor Presidente, consiste solamente en obviar la objecion

apuntada por varios Delegados al efecto de que la primera clausula del draft que dice: "The
elections, returns and qualifications of the members of the National Assembly" parece que
da a la Comision Electoral la facultad de determinar tambien la eleccion de los miembros
que no ha sido protestados y para obviar esa dificultad, creemos que la enmienda tien razon
en ese sentido, si enmendamos el draft, de tal modo que se lea como sigue: "All cases
contesting the election", de modo que los jueces de la Comision Electoral se limitaran
solamente a los casos en que haya habido protesta contra las actas." Before the
amendment of Delegate Labrador was voted upon the following interpellation also took
place:

El Sr. CONEJERO. Antes de votarse la enmienda, quisiera

El Sr. PRESIDENTE. ¿Que dice el Comite?

El Sr. ROXAS. Con mucho gusto.

El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la mayoria, y otros tres a
la minoria y tres a la Corte Suprema, ¿no cree Su Señoria que esto equivale practicamente
a dejar el asunto a los miembros del Tribunal Supremo?

El Sr. ROXAS. Si y no. Creemos que si el tribunal o la Commission esta constituido en esa
forma, tanto los miembros de la mayoria como los de la minoria asi como los miembros de la
Corte Suprema consideraran la cuestion sobre la base de sus meritos, sabiendo que el
partidismo no es suficiente para dar el triunfo.

El Sr. CONEJERO. ¿Cree Su Señoria que en un caso como ese, podriamos hacer que tanto
los de la mayoria como los de la minoria prescindieran del partidismo?

El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo.

xxx xxx xxx

The amendment introduced by Delegates Labrador, Abordo and others seeking to restore the power
to decide contests relating to the election, returns and qualifications of members of the National
Assembly to the National Assembly itself, was defeated by a vote of ninety-eight (98) against fifty-six
(56).

In the same session of December 4, 1934, Delegate Cruz (C.) sought to amend the draft by reducing
the representation of the minority party and the Supreme Court in the Electoral Commission to two
members each, so as to accord more representation to the majority party. The Convention rejected
this amendment by a vote of seventy-six (76) against forty-six (46), thus maintaining the non-
partisan character of the commission.

As approved on January 31, 1935, the draft was made to read as follows:

(6) All cases contesting the elections, returns and qualifications of the Members of the
National Assembly shall be judged by an Electoral Commission, composed of three
members elected by the party having the largest number of votes in the National Assembly,
three elected by the members of the party having the second largest number of votes, and
three justices of the Supreme Court designated by the Chief Justice, the Commission to be
presided over by one of said justices.

The Style Committee to which the draft was submitted revised it as follows:

SEC. 4. There shall be an Electoral Commission composed of three Justices of the Supreme
Court designated by the Chief Justice, and of six Members chosen by the National
Assembly, three of whom shall be nominated by the party having the largest number of

30
 votes, and three by the party having the second largest number of votes therein. The senior
Justice in the Commission shall be its chairman. The Electoral Commission shall be the sole
judge of the election, returns, and qualifications of the Members of the National Assembly.

When the foregoing draft was submitted for approval on February 8, 1935, the Style Committee,
through President Recto, to effectuate the original intention of the Convention, agreed to insert the
phrase "All contests relating to" between the phrase "judge of" and the words "the elections", which
was accordingly accepted by the Convention.

The transfer of the power of determining the election, returns and qualifications of the members of
the legislature long lodged in the legislative body, to an independent, impartial and non-partisan
tribunal, is by no means a mere experiment in the science of government.

Cushing, in his Law and Practice of Legislative Assemblies (ninth edition, chapter VI, pages 57, 58),
gives a vivid account of the "scandalously notorious" canvassing of votes by political parties in the
disposition of contests by the House of Commons in the following passages which are partly quoted
by the petitioner in his printed memorandum of March 14, 1936:

153. From the time when the commons established their right to be the exclusive judges of
the elections, returns, and qualifications of their members, until the year 1770, two modes of
proceeding prevailed, in the determination of controverted elections, and rights of
membership. One of the standing committees appointed at the commencement of each
session, was denominated the committee of privileges and elections, whose functions was to
hear and investigate all questions of this description which might be referred to them, and to
report their proceedings, with their opinion thereupon, to the house, from time to time. When
an election petition was referred to this committee they heard the parties and their witnesses
and other evidence, and made a report of all the evidence, together with their opinion
thereupon, in the form of resolutions, which were considered and agreed or disagreed to by
the house. The other mode of proceeding was by a hearing at the bar of the house itself.
When this court was adopted, the case was heard and decided by the house, in substantially
the same manner as by a committee. The committee of privileges and elections although a
select committee. The committee of privileges and elections although a select committee
was usually what is called an open one; that is to say, in order to constitute the committee, a
quorum of the members named was required to be present, but all the members of the
house were at liberty to attend the committee and vote if they pleased.

154. With the growth of political parties in parliament questions relating to the right of
membership gradually assumed a political character; so that for many years previous to the
year 1770, controverted elections had been tried and determined by the house of commons,
as mere party questions, upon which the strength of contending factions might be tested.
Thus, for Example, in 1741, Sir Robert Walpole, after repeated attacks upon his government,
resigned his office in consequence of an adverse vote upon the Chippenham election. Mr.
Hatsell remarks, of the trial of election cases, as conducted under this system, that "Every
principle of decency and justice were notoriously and openly prostituted, from whence the
younger part of the house were insensibly, but too successfully, induced to adopt the same
licentious conduct in more serious matters, and in questions of higher importance to the
public welfare." Mr. George Grenville, a distinguished member of the house of commons,
undertook to propose a remedy for the evil, and, on the 7th of March, 1770, obtained the
unanimous leave of the house to bring in a bill, "to regulate the trial of controverted elections,
or returns of members to serve in parliament." In his speech to explain his plan, on the
motion for leave, Mr. Grenville alluded to the existing practice in the following terms: "Instead
of trusting to the merits of their respective causes, the principal dependence of both parties is
their private interest among us; and it is scandalously notorious that we are as earnestly
canvassed to attend in favor of the opposite sides, as if we were wholly self-elective, and not
bound to act by the principles of justice, but by the discretionary impulse of our own
inclinations; nay, it is well known, that in every contested election, many members of this
house, who are ultimately to judge in a kind of judicial capacity between the competitors,
enlist themselves as parties in the contention, and take upon themselves the partial
management of the very business, upon which they should determine with the strictest
impartiality."

155. It was to put an end to the practices thus described, that Mr. Grenville brought in a bill
which met with the approbation of both houses, and received the royal assent on the 12th of
April, 1770. This was the celebrated law since known by the name of the Grenville Act; of

31
 which Mr. Hatsell declares, that it "was one of the nobles works, for the honor of the house of
commons, and the security of the constitution, that was ever devised by any minister or
statesman." It is probable, that the magnitude of the evil, or the apparent success of the
remedy, may have led many of the contemporaries of the measure to the information of a
judgement, which was not acquiesced in by some of the leading statesmen of the day, and
has not been entirely confirmed by subsequent experience. The bill was objected to by Lord
North, Mr. De Grey, afterwards chief justice of the common pleas, Mr. Ellis, Mr. Dyson, who
had been clerk of the house, and Mr. Charles James Fox, chiefly on the ground, that the
introduction of the new system was an essential alteration of the constitution of parliament,
and a total abrogation of one of the most important rights and jurisdictions of the house of
commons.

As early as 1868, the House of Commons in England solved the problem of insuring the non-
partisan settlement of the controverted elections of its members by abdicating its prerogative to two
judges of the King's Bench of the High Court of Justice selected from a rota in accordance with rules
of court made for the purpose. Having proved successful, the practice has become imbedded in
English jurisprudence (Parliamentary Elections Act, 1868 [31 & 32 Vict. c. 125] as amended by
Parliamentary Elections and Corrupt Practices Act. 1879 [42 & 43 Vict. c. 75], s. 2; Corrupt and
Illegal Practices Preventions Act, 1883 [46 & 47 Vict. c. 51;, s. 70; Expiring Laws Continuance Act,
1911 [1 & 2 Geo. 5, c. 22]; Laws of England, vol. XII, p. 408, vol. XXI, p. 787). In the Dominion of
Canada, election contests which were originally heard by the Committee of the House of Commons,
are since 1922 tried in the courts. Likewise, in the Commonwealth of Australia, election contests
which were originally determined by each house, are since 1922 tried in the High Court. In Hungary,
the organic law provides that all protests against the election of members of the Upper House of the
Diet are to be resolved by the Supreme Administrative Court (Law 22 of 1916, chap. 2, art. 37, par.
6). The Constitution of Poland of March 17, 1921 (art. 19) and the Constitution of the Free City of
Danzig of May 13, 1922 (art. 10) vest the authority to decide contested elections to the Diet or
National Assembly in the Supreme Court. For the purpose of deciding legislative contests, the
Constitution of the German Reich of July 1, 1919 (art. 31), the Constitution of the Czechoslovak
Republic of February 29, 1920 (art. 19) and the Constitution of the Grecian Republic of June 2, 1927
(art. 43), all provide for an Electoral Commission.

The creation of an Electoral Commission whose membership is recruited both from the legislature
and the judiciary is by no means unknown in the United States. In the presidential elections of 1876
there was a dispute as to the number of electoral votes received by each of the two opposing
candidates. As the Constitution made no adequate provision for such a contingency, Congress
passed a law on January 29, 1877 (United States Statutes at Large, vol. 19, chap. 37, pp. 227-229),
creating a special Electoral Commission composed of five members elected by the Senate, five
members elected by the House of Representatives, and five justices of the Supreme Court, the fifth
justice to be selected by the four designated in the Act. The decision of the commission was to be
binding unless rejected by the two houses voting separately. Although there is not much of a moral
lesson to be derived from the experience of America in this regard, judging from the observations of
Justice Field, who was a member of that body on the part of the Supreme Court (Countryman, the
Supreme Court of the United States and its Appellate Power under the Constitution [Albany, 1913]
— Relentless Partisanship of Electoral Commission, p. 25 et seq.), the experiment has at least
abiding historical interest.

The members of the Constitutional Convention who framed our fundamental law were in their
majority men mature in years and experience. To be sure, many of them were familiar with the
history and political development of other countries of the world. When , therefore, they deemed it
wise to create an Electoral Commission as a constitutional organ and invested it with the exclusive
function of passing upon and determining the election, returns and qualifications of the members of
the National Assembly, they must have done so not only in the light of their own experience but also
having in view the experience of other enlightened peoples of the world. The creation of the Electoral
Commission was designed to remedy certain evils of which the framers of our Constitution were
cognizant. Notwithstanding the vigorous opposition of some members of the Convention to its
creation, the plan, as hereinabove stated, was approved by that body by a vote of 98 against 58. All
that can be said now is that, upon the approval of the constitutional the creation of the Electoral
Commission is the expression of the wisdom and "ultimate justice of the people". (Abraham Lincoln,
First Inaugural Address, March 4, 1861.)

From the deliberations of our Constitutional Convention it is evident that the purpose was to transfer
in its totality all the powers previously exercised by the legislature in matters pertaining to contested
elections of its members, to an independent and impartial tribunal. It was not so much the knowledge

32
and appreciation of contemporary constitutional precedents, however, as the long-felt need of
determining legislative contests devoid of partisan considerations which prompted the people, acting
through their delegates to the Convention, to provide for this body known as the Electoral
Commission. With this end in view, a composite body in which both the majority and minority parties
are equally represented to off-set partisan influence in its deliberations was created, and further
endowed with judicial temper by including in its membership three justices of the Supreme Court.

The Electoral Commission is a constitutional creation, invested with the necessary authority in the
performance and execution of the limited and specific function assigned to it by the Constitution.
Although it is not a power in our tripartite scheme of government, it is, to all intents and purposes,
when acting within the limits of its authority, an independent organ. It is, to be sure, closer to the
legislative department than to any other. The location of the provision (section 4) creating the
Electoral Commission under Article VI entitled "Legislative Department" of our Constitution is very
indicative. Its compositions is also significant in that it is constituted by a majority of members of the
legislature. But it is a body separate from and independent of the legislature.

The grant of power to the Electoral Commission to judge all contests relating to the election, returns
and qualifications of members of the National Assembly, is intended to be as complete and
unimpaired as if it had remained originally in the legislature. The express lodging of that power in the
Electoral Commission is an implied denial of the exercise of that power by the National Assembly.
And this is as effective a restriction upon the legislative power as an express prohibition in the
Constitution (Ex parte Lewis, 45 Tex. Crim. Rep., 1; State vs.Whisman, 36 S.D., 260; L.R.A., 1917B,
1). If we concede the power claimed in behalf of the National Assembly that said body may regulate
the proceedings of the Electoral Commission and cut off the power of the commission to lay down
the period within which protests should be filed, the grant of power to the commission would be
ineffective. The Electoral Commission in such case would be invested with the power to determine
contested cases involving the election, returns and qualifications of the members of the National
Assembly but subject at all times to the regulative power of the National Assembly. Not only would
the purpose of the framers of our Constitution of totally transferring this authority from the legislative
body be frustrated, but a dual authority would be created with the resultant inevitable clash of
powers from time to time. A sad spectacle would then be presented of the Electoral Commission
retaining the bare authority of taking cognizance of cases referred to, but in reality without the
necessary means to render that authority effective whenever and whenever the National Assembly
has chosen to act, a situation worse than that intended to be remedied by the framers of our
Constitution. The power to regulate on the part of the National Assembly in procedural matters will
inevitably lead to the ultimate control by the Assembly of the entire proceedings of the Electoral
Commission, and, by indirection, to the entire abrogation of the constitutional grant. It is obvious that
this result should not be permitted.

We are not insensible to the impassioned argument or the learned counsel for the petitioner
regarding the importance and necessity of respecting the dignity and independence of the national
Assembly as a coordinate department of the government and of according validity to its acts, to
avoid what he characterized would be practically an unlimited power of the commission in the
admission of protests against members of the National Assembly. But as we have pointed out
hereinabove, the creation of the Electoral Commission carried with it ex necesitate rei the power
regulative in character to limit the time with which protests intrusted to its cognizance should be filed.
It is a settled rule of construction that where a general power is conferred or duty enjoined, every
particular power necessary for the exercise of the one or the performance of the other is also
conferred (Cooley, Constitutional Limitations, eight ed., vol. I, pp. 138, 139). In the absence of any
further constitutional provision relating to the procedure to be followed in filing protests before the
Electoral Commission, therefore, the incidental power to promulgate such rules necessary for the
proper exercise of its exclusive power to judge all contests relating to the election, returns and
qualifications of members of the National Assembly, must be deemed by necessary implication to
have been lodged also in the Electoral Commission.

It is, indeed, possible that, as suggested by counsel for the petitioner, the Electoral Commission may
abuse its regulative authority by admitting protests beyond any reasonable time, to the disturbance
of the tranquillity and peace of mind of the members of the National Assembly. But the possibility of
abuse is not argument against the concession of the power as there is no power that is not
susceptible of abuse. In the second place, if any mistake has been committed in the creation of an
Electoral Commission and in investing it with exclusive jurisdiction in all cases relating to the
election, returns, and qualifications of members of the National Assembly, the remedy is political, not
judicial, and must be sought through the ordinary processes of democracy. All the possible abuses
of the government are not intended to be corrected by the judiciary. We believe, however, that the

33
people in creating the Electoral Commission reposed as much confidence in this body in the
exclusive determination of the specified cases assigned to it, as they have given to the Supreme
Court in the proper cases entrusted to it for decision. All the agencies of the government were
designed by the Constitution to achieve specific purposes, and each constitutional organ working
within its own particular sphere of discretionary action must be deemed to be animated with the
same zeal and honesty in accomplishing the great ends for which they were created by the
sovereign will. That the actuations of these constitutional agencies might leave much to be desired in
given instances, is inherent in the perfection of human institutions. In the third place, from the fact
that the Electoral Commission may not be interfered with in the exercise of its legitimate power, it
does not follow that its acts, however illegal or unconstitutional, may not be challenge in appropriate
cases over which the courts may exercise jurisdiction.

But independently of the legal and constitutional aspects of the present case, there are
considerations of equitable character that should not be overlooked in the appreciation of the
intrinsic merits of the controversy. The Commonwealth Government was inaugurated on November
15, 1935, on which date the Constitution, except as to the provisions mentioned in section 6 of
Article XV thereof, went into effect. The new National Assembly convened on November 25th of that
year, and the resolution confirming the election of the petitioner, Jose A. Angara was approved by
that body on December 3, 1935. The protest by the herein respondent Pedro Ynsua against the
election of the petitioner was filed on December 9 of the same year. The pleadings do not show
when the Electoral Commission was formally organized but it does appear that on December 9,
1935, the Electoral Commission met for the first time and approved a resolution fixing said date as
the last day for the filing of election protest. When, therefore, the National Assembly passed its
resolution of December 3, 1935, confirming the election of the petitioner to the National Assembly,
the Electoral Commission had not yet met; neither does it appear that said body had actually been
organized. As a mater of fact, according to certified copies of official records on file in the archives
division of the National Assembly attached to the record of this case upon the petition of the
petitioner, the three justices of the Supreme Court the six members of the National Assembly
constituting the Electoral Commission were respectively designated only on December 4 and 6,
1935. If Resolution No. 8 of the National Assembly confirming non-protested elections of members
of the National Assembly had the effect of limiting or tolling the time for the presentation of protests,
the result would be that the National Assembly — on the hypothesis that it still retained the incidental
power of regulation in such cases — had already barred the presentation of protests before the
Electoral Commission had had time to organize itself and deliberate on the mode and method to be
followed in a matter entrusted to its exclusive jurisdiction by the Constitution. This result was not and
could not have been contemplated, and should be avoided.

From another angle, Resolution No. 8 of the National Assembly confirming the election of members
against whom no protests had been filed at the time of its passage on December 3, 1935, can not be
construed as a limitation upon the time for the initiation of election contests. While there might have
been good reason for the legislative practice of confirmation of the election of members of the
legislature at the time when the power to decide election contests was still lodged in the legislature,
confirmation alone by the legislature cannot be construed as depriving the Electoral Commission of
the authority incidental to its constitutional power to be "the sole judge of all contest relating to the
election, returns, and qualifications of the members of the National Assembly", to fix the time for the
filing of said election protests. Confirmation by the National Assembly of the returns of its members
against whose election no protests have been filed is, to all legal purposes, unnecessary. As
contended by the Electoral Commission in its resolution of January 23, 1936, overruling the motion
of the herein petitioner to dismiss the protest filed by the respondent Pedro Ynsua, confirmation of
the election of any member is not required by the Constitution before he can discharge his duties as
such member. As a matter of fact, certification by the proper provincial board of canvassers is
sufficient to entitle a member-elect to a seat in the national Assembly and to render him eligible to
any office in said body (No. 1, par. 1, Rules of the National Assembly, adopted December 6, 1935).

Under the practice prevailing both in the English House of Commons and in the Congress of the
United States, confirmation is neither necessary in order to entitle a member-elect to take his seat.
The return of the proper election officers is sufficient, and the member-elect presenting such return
begins to enjoy the privileges of a member from the time that he takes his oath of office (Laws of
England, vol. 12, pp. 331. 332; vol. 21, pp. 694, 695; U. S. C. A., Title 2, secs. 21, 25, 26).
Confirmation is in order only in cases of contested elections where the decision is adverse to the
claims of the protestant. In England, the judges' decision or report in controverted elections is
certified to the Speaker of the House of Commons, and the House, upon being informed of such
certificate or report by the Speaker, is required to enter the same upon the Journals, and to give
such directions for confirming or altering the return, or for the issue of a writ for a new election, or for
carrying into execution the determination as circumstances may require (31 & 32 Vict., c. 125, sec.

34
13). In the United States, it is believed, the order or decision of the particular house itself is generally
regarded as sufficient, without any actual alternation or amendment of the return (Cushing, Law and
Practice of Legislative Assemblies, 9th ed., sec. 166).

Under the practice prevailing when the Jones Law was still in force, each house of the Philippine
Legislature fixed the time when protests against the election of any of its members should be filed.
This was expressly authorized by section 18 of the Jones Law making each house the sole judge of
the election, return and qualifications of its members, as well as by a law (sec. 478, Act No. 3387)
empowering each house to respectively prescribe by resolution the time and manner of filing contest
in the election of member of said bodies. As a matter of formality, after the time fixed by its rules for
the filing of protests had already expired, each house passed a resolution confirming or approving
the returns of such members against whose election no protests had been filed within the prescribed
time. This was interpreted as cutting off the filing of further protests against the election of those
members not theretofore contested (Amistad vs. Claravall [Isabela], Second Philippine Legislature,
Record — First Period, p. 89; Urguello vs. Rama [Third District, Cebu], Sixth Philippine Legislature;
Fetalvero vs. Festin [Romblon], Sixth Philippine Legislature, Record — First Period, pp. 637-640;
Kintanar vs. Aldanese [Fourth District, Cebu], Sixth Philippine Legislature, Record — First Period,
pp. 1121, 1122; Aguilar vs. Corpus [Masbate], Eighth Philippine Legislature, Record — First Period,
vol. III, No. 56, pp. 892, 893). The Constitution has repealed section 18 of the Jones Law. Act No.
3387, section 478, must be deemed to have been impliedly abrogated also, for the reason that with
the power to determine all contest relating to the election, returns and qualifications of members of
the National Assembly, is inseparably linked the authority to prescribe regulations for the exercise of
that power. There was thus no law nor constitutional provisions which authorized the National
Assembly to fix, as it is alleged to have fixed on December 3, 1935, the time for the filing of contests
against the election of its members. And what the National Assembly could not do directly, it could
not do by indirection through the medium of confirmation.

Summarizing, we conclude:

(a) That the government established by the Constitution follows fundamentally the theory of
separation of power into the legislative, the executive and the judicial.

(b) That the system of checks and balances and the overlapping of functions and duties
often makes difficult the delimitation of the powers granted.

(c) That in cases of conflict between the several departments and among the agencies
thereof, the judiciary, with the Supreme Court as the final arbiter, is the only constitutional
mechanism devised finally to resolve the conflict and allocate constitutional boundaries.

(d) That judicial supremacy is but the power of judicial review in actual and appropriate cases
and controversies, and is the power and duty to see that no one branch or agency of the
government transcends the Constitution, which is the source of all authority.

(e) That the Electoral Commission is an independent constitutional creation with specific
powers and functions to execute and perform, closer for purposes of classification to the
legislative than to any of the other two departments of the governments.

(f ) That the Electoral Commission is the sole judge of all contests relating to the election,
returns and qualifications of members of the National Assembly.

(g) That under the organic law prevailing before the present Constitution went into effect,
each house of the legislature was respectively the sole judge of the elections, returns, and
qualifications of their elective members.

(h) That the present Constitution has transferred all the powers previously exercised by the
legislature with respect to contests relating to the elections, returns and qualifications of its
members, to the Electoral Commission.

(i) That such transfer of power from the legislature to the Electoral Commission was full,
clear and complete, and carried with it ex necesitate rei the implied power inter alia to
prescribe the rules and regulations as to the time and manner of filing protests.

35
 ( j) That the avowed purpose in creating the Electoral Commission was to have an
independent constitutional organ pass upon all contests relating to the election, returns and
qualifications of members of the National Assembly, devoid of partisan influence or
consideration, which object would be frustrated if the National Assembly were to retain the
power to prescribe rules and regulations regarding the manner of conducting said contests.

(k) That section 4 of article VI of the Constitution repealed not only section 18 of the Jones
Law making each house of the Philippine Legislature respectively the sole judge of the
elections, returns and qualifications of its elective members, but also section 478 of Act No.
3387 empowering each house to prescribe by resolution the time and manner of filing
contests against the election of its members, the time and manner of notifying the adverse
party, and bond or bonds, to be required, if any, and to fix the costs and expenses of contest.

(l) That confirmation by the National Assembly of the election is contested or not, is not
essential before such member-elect may discharge the duties and enjoy the privileges of a
member of the National Assembly.

(m) That confirmation by the National Assembly of the election of any member against whom
no protest had been filed prior to said confirmation, does not and cannot deprive the
Electoral Commission of its incidental power to prescribe the time within which protests
against the election of any member of the National Assembly should be filed.

We hold, therefore, that the Electoral Commission was acting within the legitimate exercise of its
constitutional prerogative in assuming to take cognizance of the protest filed by the respondent
Pedro Ynsua against the election of the herein petitioner Jose A. Angara, and that the resolution of
the National Assembly of December 3, 1935 can not in any manner toll the time for filing protests
against the elections, returns and qualifications of members of the National Assembly, nor prevent
the filing of a protest within such time as the rules of the Electoral Commission might prescribe.

In view of the conclusion reached by us relative to the character of the Electoral Commission as a
constitutional creation and as to the scope and extent of its authority under the facts of the present
controversy, we deem it unnecessary to determine whether the Electoral Commission is an inferior
tribunal, corporation, board or person within the purview of sections 226 and 516 of the Code of Civil
Procedure.

The petition for a writ of prohibition against the Electoral Commission is hereby denied, with costs
against the petitioner. So ordered.

Avanceña, C. J., Diaz, Concepcion, and Horrilleno, JJ., concur.

Separate Opinions

ABAD SANTOS, J., concurring:

I concur in the result and in most of the views so ably expressed in the preceding opinion. I am,
however, constrained to withhold my assent to certain conclusions therein advanced.

The power vested in the Electoral Commission by the Constitution of judging of all contests relating
to the election, returns, and qualifications of the members of the National Assembly, is judicial in
nature. (Thomas vs. Loney, 134 U.S., 372; 33 Law. ed., 949, 951.) On the other hand, the power to
regulate the time in which notice of a contested election may be given, is legislative in character.
(M'Elmoyle vs. Cohen, 13 Pet., 312; 10 Law. ed., 177; Missouri vs. Illinois, 200 U. S. 496; 50 Law.
ed., 572.)

It has been correctly stated that the government established by the Constitution follows
fundamentally the theory of the separation of powers into legislative, executive, and judicial.
Legislative power is vested in the National Assembly. (Article VI, sec. 1.) In the absence of any clear
constitutional provision to the contrary, the power to regulate the time in which notice of a contested
election may be given, must be deemed to be included in the grant of legislative power to the
National Assembly.

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The Constitution of the United States contains a provision similar to the that found in Article VI,
section 4, of the Constitution of the Philippines. Article I, section 5, of the Constitution of the United
States provides that each house of the Congress shall be the judge of the elections, returns, and
qualifications of its own members. Notwithstanding this provision, the Congress has assumed the
power to regulate the time in which notice of a contested election may be given. Thus section 201,
Title 2, of the United States Code Annotated prescribes:

Whenever any person intends to contest an election of any Member of the House of
Representatives of the United States, he shall, within thirty days after the result of such
election shall have been determined by the officer or board of canvassers authorized by law
to determine the same, give notice, in writing, to the Member whose seat he designs to
contest, of his intention to contest the same, and, in such notice, shall specify particularly the
grounds upon which he relies in the contest. (R. S., par. 105.)

The Philippine Autonomy Act, otherwise known as the Jones Law, also contained a provision to the
effect that the Senate and House of Representatives, respectively, shall be the sole judges of the
elections, returns, and qualifications of their elective members. Notwithstanding this provision, the
Philippine Legislature passed the Election Law, section 478 of which reads as follows:

The Senate and the House of Representatives shall by resolution respectively prescribe the
time and manner of filing contest in the election of members of said bodies, the time and
manner of notifying the adverse party, and bond or bonds, to be required, if any, and shall fix
the costs and expenses of contest which may be paid from their respective funds.

The purpose sought to be attained by the creation of the Electoral Commission was not to erect a
body that would be above the law, but to raise legislative elections contests from the category of
political to that of justiciable questions. The purpose was not to place the commission beyond the
reach of the law, but to insure the determination of such contests with the due process of law.

Section 478 of the Election Law was in force at the time of the adoption of the Constitution, Article
XV, section 2, of which provides that —

All laws of the Philippine Islands shall continue in force until the inauguration of the
Commonwealth of the Philippines; thereafter, such laws shall remain operative, unless
inconsistent with this Constitution, until amended, altered, modified, or repealed by the
National Assembly, and all references in such laws to the Government or officials of the
Philippine Islands shall be construed, in so far as applicable, to refer to the Government and
corresponding officials under this Constitution.

The manifest purpose of this constitutional provision was to insure the orderly processes of
government, and to prevent any hiatus in its operations after the inauguration of the Commonwealth
of the Philippines. It was thus provided that all laws of the Philippine Islands shall remain operative
even after the inauguration of the Commonwealth of the Philippines, unless inconsistent with the
Constitution, and that all references in such laws to the government or officials of the Philippine
Islands shall be construed, in so far as applicable, to refer to the government and corresponding
officials under the Constitution. It would seem to be consistent not only with the spirit but the letter of
the Constitution to hold that section 478 of the Election Law remains operative and should now be
construed to refer to the Electoral Commission, which, in so far as the power to judge election
contests is concerned, corresponds to either the Senate or the House of Representative under the
former regime. It is important to observe in this connection that said section 478 of the Election Law
vested the power to regulate the time and manner in which notice of a contested election may be
given, not in the Philippine Legislature but in the Senate and House of Representatives singly. In
other words, the authority to prescribe the time and manner of filing contests in the elections of
members of the Philippine Legislature was by statute lodged separately in the bodies clothed with
power to decide such contests. Construing section 478 of the Election Law to refer to the National
Assembly, as required by Article XV, section 2, of the Constitution, it seems reasonable to conclude
that the authority to prescribe the time and manner of filing contests in the election of members of
the National Assembly is vested in the Electoral Commission, which is now the body clothed with
power to decide such contests.

In the light of what has been said, the resolution of the National Assembly of December 3, 1935,
could not have the effect of barring the right of the respondent Pedro Ynsua to contest the election of
the petitioner. By the same token, the Electoral Commission was authorized by law to adopt its

37
resolution of December 9, 1935, which fixed the time with in which written contests must be filed with
the commission.

Having been filed within the time fixed by its resolutions, the Electoral Commission has jurisdiction to
hear and determine the contest filed by the respondent Pedro Ynsua against the petitioner Jose A.
Angara.

THE FACTS

Petitioner Jose Angara was proclaimed winner and took his oath of office as member of the
National Assembly of the Commonwealth Government. On December 3, 1935, the National
Assembly passed a resolution confirming the election of those who have not been subject of an
election protest prior to the adoption of the said resolution.

On December 8, 1935, however, private respondent Pedro Ynsua filed an election protest
against the petitioner before the Electoral Commission of the National Assembly. The following
day, December 9, 1935, the Electoral Commission adopted its own resolution providing that it will
not consider any election protest that was not submitted on or before December 9, 1935.

Citing among others the earlier resolution of the National Assembly, the petitioner sought the
dismissal of respondent’s protest. The Electoral Commission however denied his motion.

II. THE ISSUE

Did the Electoral Commission act without or in excess of its jurisdiction in taking cognizance
of the protest filed against the election of the petitioner notwithstanding the previous confirmation of
such election by resolution of the National Assembly?

III. THE RULING

[The Court DENIED the petition.]

NO, the Electoral Commission did not act without or in excess of its jurisdiction in
taking cognizance of the protest filed against the election of the petitioner notwithstanding
the previous confirmation of such election by resolution of the National Assembly.

The Electoral Commission acted within the legitimate exercise of its constitutional
prerogative in assuming to take cognizance of the protest filed by the respondent Ynsua against the
election of the petitioner Angara, and that the earlier resolution of the National Assembly cannot in
any manner toll the time for filing election protests against members of the National Assembly, nor
prevent the filing of a protest within such time as the rules of the Electoral Commission might
prescribe.

The grant of power to the Electoral Commission to judge all contests relating to the election,
returns and qualifications of members of the National Assembly, is intended to be as complete and
unimpaired as if it had remained originally in the legislature. The express lodging of that power in the
Electoral Commission is an implied denial of the exercise of that power by the National Assembly.
xxx.

[T]he creation of the Electoral Commission carried with it ex necesitate rei the power
regulative in character to limit the time with which protests intrusted to its cognizance should be filed.
[W]here a general power is conferred or duty enjoined, every particular power necessary for the
exercise of the one or the performance of the other is also conferred. In the absence of any further
constitutional provision relating to the procedure to be followed in filing protests before the Electoral
Commission, therefore, the incidental power to promulgate such rules necessary for the proper
exercise of its exclusive power to judge all contests relating to the election, returns and qualifications
of members of the National Assembly, must be deemed by necessary implication to have been
lodged also in the Electoral Commission.

FACTS:
Jose Angara and Pedro Ynsua, Miguel Castillo and Dionisio Mayor were candidates voted for the position
of member of the National Assembly for the 1st district of Tayabas province.
On Oct 17 1935, the provincial board of canvassers proclaimed Angara as member-elect of the Nat'l
Assembly for garnering the most number of votes. He then took his oath of office on Nov 15th. On Dec

38
3rd, Nat'l Assembly passed Res. No 8 which declared with finality the victory of Angara. On Dec 8, Ynsua
filed before the Electoral Commission a motion of protest against the election of Angara, that he be
declared elected member of the Nat'l Assembly. Electoral Commission passed a resolution in Dec 9th as
the last day for the filing of the protests against the election, returns and qualifications of the members of
the National Assembly. On Dec 20, Angara filed before the Elec. Commission a motion to dismiss the
protest that the protest in question was filed out of the prescribed period. The Elec. Commission denied
Angara's petition.
Angara prayed for the issuance of writ of prohibition to restrain and prohibit the Electoral Commission
taking further cognizance of Ynsua's protest. He contended that the Constitution confers exclusive
jurisdiction upon the said Electoral Commissions as regards the merits of contested elections to the Nat'l
Assembly and the Supreme Court therefore has no jurisdiction to hear the case.

ISSUE:
Whether or not the SC has jurisdiction over the Electoral Commission and the subject matter of the
controversy;
Whether or not The Electoral Commission has acted without or in excess of its jurisdiction.

RULING:

In this case, the nature of the present controversy shows the necessity of a final constitutional arbiter to
determine the conflict of authority between two agencies created by the Constitution. The court has
jurisdiction over the Electoral Commission and the subject matter of the present controversy for the
purpose of determining the character, scope and extent of the constitutional grant to the Electoral
Commission as "the sole judge of all contests relating to the election, returns and qualifications of the
members of the National Assembly." (Sec 4 Art. VI 1935 Constitution). It is held, therefore, that the
Electoral Commission was acting within the legitimate exercise of its constitutional prerogative in
assuming to take cognizance of the election protest filed by Ynsua.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 47065 June 26, 1940

PANGASINAN TRANSPORTATION CO., INC., petitioner,

vs.
THE PUBLIC SERVICE COMMISSION, respondent.

C. de G. Alvear for petitioner.

Evaristo R. Sandoval for respondent.

LAUREL, J.:

The petitioner has been engaged for the past twenty years in the business of transporting
passengers in the Province of Pangasinan and Tarlac and, to a certain extent, in the Province of
Nueva Ecija and Zambales, by means of motor vehicles commonly known as TPU buses, in
accordance with the terms and conditions of the certificates of public convenience issued in its favor
by the former Public Utility Commission in cases Nos. 24948, 30973, 36830, 32014 and 53090. On
August 26, 1939, the petitioner filed with the Public Service Commission an application for
authorization to operate ten additional new Brockway trucks (case No. 56641), on the ground that
they were needed to comply with the terms and conditions of its existing certificates and as a result
of the application of the Eight Hour Labor Law. In the decision of September 26, 1939, granting the
petitioner's application for increase of equipment, the Public Service Commission ordered:

Y de acuerdo con que se provee por el articulo 15 de la ley No. 146 del Commonwealth, tal
como ha sido enmendada por el articulo 1 de la Ley No. 454, por la presente se enmienda
las condiciones de los certificados de convenciencia publica expedidos en los expedientes
Nos. 24948, 30973, 36831, 32014 y la authorizacion el el expediente No. 53090, asi que se
consideran incorporadas en los mismos las dos siguientes condiciones:

39
 Que los certificados de conveniencia publica y authorizacion arriba mencionados seran
validos y subsistentes solamente durante de veinticinco (25) anos, contados desde la fecha
de la promulgacion de esta decision.

Que la empresa de la solicitante porda ser adquirida por el Commonwealth de Filipinas o por
alguna dependencia del mismo en cualquier tiempo que lo deseare previo pago del precio d
costo de su equipo util, menos una depreciacion razonable que se ha fijar por la Comision al
tiempo de su adquisicion.

Not being agreeable to the two new conditions thus incorporated in its existing certificates, the
petitioner filed on October 9, 1939 a motion for reconsideration which was denied by the Public
Service Commission on November 14, 1939. Whereupon, on November 20, 1939, the present
petition for a writ of certiorari was instituted in this court praying that an order be issued directing the
secretary of the Public Service Commission to certify forthwith to this court the records of all
proceedings in case No. 56641; that this court, after hearing, render a decision declaring section 1 of
Commonwealth Act No. 454 unconstitutional and void; that, if this court should be of the opinion that
section 1 of Commonwealth Act No. 454 is constitutional, a decision be rendered declaring that the
provisions thereof are not applicable to valid and subsisting certificates issued prior to June 8, 1939.
Stated in the language of the petitioner, it is contended:

1. That the legislative powers granted to the Public Service Commission by section 1 of
Commonwealth Act No. 454, without limitation, guide or rule except the unfettered discretion
and judgment of the Commission, constitute a complete and total abdication by the
Legislature of its functions in the premises, and for that reason, the Act, in so far as those
powers are concerned, is unconstitutional and void.

2. That even if it be assumed that section 1 of Commonwealth Act No. 454, is valid
delegation of legislative powers, the Public Service Commission has exceeded its authority
because: (a) The Act applies only to future certificates and not to valid and subsisting
certificates issued prior to June 8, 1939, when said Act took effect, and (b) the Act, as
applied by the Commission, violates constitutional guarantees.

Section 15 of Commonwealth Act No. 146, as amended by section 1 of Commonwealth Act No. 454,
invoked by the respondent Public Service Commission in the decision complained of in the present
proceedings, reads as follows:

With the exception to those enumerated in the preceding section, no public service shall
operate in the Philippines without possessing a valid and subsisting certificate from the
Public Service Commission, known as "certificate of public convenience," or "certificate of
convenience and public necessity," as the case may be, to the effect that the operation of
said service and the authorization to do business will promote the public interests in a proper
and suitable manner.

The Commission may prescribed as a condition for the issuance of the certificate provided in
the preceding paragraph that the service can be acquired by the Commonwealth of the
Philippines or by any instrumentality thereof upon payment of the cost price of its useful
equipment, less reasonable depreciation; and likewise, that the certificate shall valid only for
a definite period of time; and that the violation of any of these conditions shall produce the
immediate cancellation of the certificate without the necessity of any express action on the
part of the Commission.

In estimating the depreciation, the effect of the use of the equipment, its actual condition, the
age of the model, or other circumstances affecting its value in the market shall be taken into
consideration.

The foregoing is likewise applicable to any extension or amendment of certificates actually

force and to those which may hereafter be issued, to permits to modify itineraries and time
schedules of public services and to authorization to renew and increase equipment and
properties.

Under the first paragraph of the aforequoted section 15 of Act No. 146, as amended, no public
service can operate without a certificate of public convenience or certificate of convenience and
public necessity to the effect that the operation of said service and the authorization to do business
will "public interests in a proper and suitable manner." Under the second paragraph, one of the

40
conditions which the Public Service Commission may prescribed the issuance of the certificate
provided for in the first paragraph is that "the service can be acquired by the Commonwealth of the
Philippines or by any instrumental thereof upon payment of the cost price of its useful equipment,
less reasonable depreciation," a condition which is virtually a restatement of the principle already
embodied in the Constitution, section 6 of Article XII, which provides that "the State may, in the
interest of national welfare and defense, establish and operate industries and means of
transportation and communication, and, upon payment of just compensation, transfer to public
ownership utilities and other private enterprises to be operated by the Government. "Another
condition which the Commission may prescribed, and which is assailed by the petitioner, is that the
certificate "shall be valid only for a definite period of time." As there is a relation between the first and
second paragraphs of said section 15, the two provisions must be read and interpreted together.
That is to say, in issuing a certificate, the Commission must necessarily be satisfied that the
operation of the service under said certificate during a definite period fixed therein "will promote the
public interests in a proper and suitable manner." Under section 16 (a) of Commonwealth Act. No.
146 which is a complement of section 15, the Commission is empowered to issue certificates of
public convenience whenever it "finds that the operation of the public service proposed and the
authorization to do business will promote the public interests in a proper and suitable manner."
Inasmuch as the period to be fixed by the Commission under section 15 is inseparable from the
certificate itself, said period cannot be disregarded by the Commission in determining the question
whether the issuance of the certificate will promote the public interests in a proper and suitable
manner. Conversely, in determining "a definite period of time," the Commission will be guided by
"public interests," the only limitation to its power being that said period shall not exceed fifty years
(sec. 16 (a), Commonwealth Act No. 146; Constitution, Art. XIII, sec. 8.) We have already ruled that
"public interest" furnishes a sufficient standard. (People vs. Fernandez and Trinidad, G. R. No.
45655, promulgated June 15, 1938; People vs. Rosenthal and Osmeña, G. R. Nos. 46076 and
46077, promulgated June 12, 1939, citing New York Central Securities Corporation vs. U.S.A., 287
U.S. 12, 24, 25, 77 Law. ed. 138, 145, 146; Schenchter Poultry Corporation vs. I.S., 295, 540, 79
Law. ed. 1570, 1585; Ferrazzini vs. Gsell, 34 Phil., 697, 711-712.)

Section 8 of Article XIII of the Constitution provides, among other things, that no franchise,
certificate, or any other form of authorization for the operation of a public utility shall be "for a longer
period than fifty years," and when it was ordained, in section 15 of Commonwealth Act No. 146, as
amended by Commonwealth Act No. 454, that the Public Service Commission may prescribed as a
condition for the issuance of a certificate that it "shall be valid only for a definite period of time" and,
in section 16 (a) that "no such certificates shall be issued for a period of more than fifty years," the
National Assembly meant to give effect to the aforesaid constitutional mandate. More than this, it
has thereby also declared its will that the period to be fixed by the Public Service Commission shall
not be longer than fifty years. All that has been delegated to the Commission, therefore, is the
administrative function, involving the use discretion, to carry out the will of the National Assembly
having in view, in addition, the promotion of "public interests in a proper and suitable manner." The
fact that the National Assembly may itself exercise the function and authority thus conferred upon
the Public Service Commission does not make the provision in question constitutionally
objectionable.

The theory of the separation of powers is designed by its originators to secure action and at the
same time to forestall overaction which necessarily results from undue concentration of powers, and
thereby obtain efficiency and prevent deposition. Thereby, the "rule of law" was established which
narrows the range of governmental action and makes it subject to control by certain devices. As a
corollary, we find the rule prohibiting delegation of legislative authority, and from the earliest time
American legal authorities have proceeded on the theory that legislative power must be exercised by
the legislature alone. It is frankness, however, to confess that as one delves into the mass of judicial
pronouncement, he finds a great deal of confusion. One thing, however, is apparent in the
development of the principle of separation of powers and that is that the maxim of delegatus non
potest delegari or delegata potestas non potest delegari, attributed to Bracton (De Legius et
Consuetedinious Angliae, edited by G. E. Woodbine, Yale University Press, 1922, vol. 2, p. 167) but
which is also recognized in principle in the Roman Law (D. 17.18.3), has been made to adapt itself
to the complexities of modern governments, giving rise to the adoption, within certain limits, of the
principle of "subordinate legislation," not only in the United States and England but in practically all
modern governments. (People vs. Rosenthal and Osmeña, G. R. Nos. 46076 and 46077,
promulgated June 12, 1939.) Accordingly, with the growing complexity of modern life, the
multiplication of the subjects of governmental regulation, and the increased difficulty of administering
the laws, there is a constantly growing tendency toward the delegation of greater powers by the
legislature, and toward the approval of the practice by the court. (Dillon Catfish Drainage Dist, v.
Bank of Dillon, 141 S. E. 274, 275, 143 S. Ct. 178; State vs. Knox County, 54 S. W. 2d. 973, 976,
165 Tenn. 319.) In harmony with such growing tendency, this Court, since the decision in the case

41
of Compañia General de Tabacos de Filipinas vs. Board of Public Utility Commissioner (34 Phil.,
136), relied upon by the petitioner, has, in instances, extended its seal of approval to the "delegation
of greater powers by the legislature." (Inchausti Steamship Co. vs. Public Utility Commissioner, 44
Phil., Autobus Co. vs. De Jesus, 56 Phil., 446; People vs. Fernandez & Trinidad, G. R. No. 45655,
promulgated June 15, 1938; People vs. Rosenthal & Osmeña, G. R. Nos. 46076, 46077,
promulgated June 12, 1939; and Robb and Hilscher vs. People, G. R. No. 45866, promulgated June
12, 1939.).

Under the fourth paragraph of section 15 of Commonwealth Act No. 146, as amended by
Commonwealth Act No. 454, the power of the Public Service Commission to prescribed the
conditions "that the service can be acquired by the Commonwealth of the Philippines or by any
instrumentality thereof upon payment of the cost price of its useful equipment, less reasonable," and
"that the certificate shall be valid only for a definite period of time" is expressly made applicable "to
any extension or amendment of certificates actually in force" and "to authorizations to renew and
increase equipment and properties." We have examined the legislative proceedings on the subject
and have found that these conditions were purposely made applicable to existing certificates of
public convenience. The history of Commonwealth Act No. 454 reveals that there was an attempt to
suppress, by way of amendment, the sentence "and likewise, that the certificate shall be valid only
for a definite period of time," but the attempt failed:

xxx xxx xxx

Sr. CUENCO. Señor Presidente, para otra enmienda. En la misma pagina, lineas 23 y 24,
pido que se supriman las palabras 'and likewise, that the certificate shall be valid only for a
definite period time.' Esta disposicion del proyecto autoriza a la Comision de Servicios
Publicos a fijar un plazo de vigencia certificado de conveniencia publica. Todo el mundo
sabe que bo se puede determinar cuando los intereses del servicio publico requiren la
explotacion de un servicio publico y ha de saber la Comision de Servisios, si en un tiempo
determinado, la explotacion de algunos buses en cierta ruta ya no tiene de ser, sobre todo,
si tiene en cuenta; que la explotacion de los servicios publicos depende de condiciones
flutuantes, asi como del volumen como trafico y de otras condiciones. Ademas, el servicio
publico se concede por la Comision de Servicios Publicos el interes publico asi lo exige. El
interes publico no tiene duracion fija, no es permanente; es un proceso mas o menos
indefinido en cuanto al tiempo. Se ha acordado eso en el caucus de anoche.

EL PRESIDENTE PRO TEMPORE. ¿Que dice el Comite?

Sr. ALANO. El Comite siente tener que rechazar esa enmienda, en vista de que esto
certificados de conveniencia publica es igual que la franquicia: sepuede extender. Si los
servicios presentados por la compañia durante el tiempo de su certificado lo require, puede
pedir la extension y se le extendera; pero no creo conveniente el que nosotros demos un
certificado de conveniencia publica de una manera que podria pasar de cincuenta anos,
porque seria anticonstitucional.

xxx xxx xxx

By a majority vote the proposed amendment was defeated. (Sesion de 17 de mayo de 1939,
Asamblea Nacional.)

The petitioner is mistaken in the suggestion that, simply because its existing certificates had been
granted before June 8, 1939, the date when Commonwealth Act No. 454, amendatory of section 15
of Commonwealth Act No. 146, was approved, it must be deemed to have the right of holding them
in perpetuity. Section 74 of the Philippine Bill provided that "no franchise, privilege, or concession
shall be granted to any corporation except under the conditions that it shall be subject to
amendment, alteration, or repeal by the Congress of the United States." The Jones Law,
incorporating a similar mandate, provided, in section 28, that "no franchise or right shall be granted
to any individual, firm, or corporation except under the conditions that it shall be subject to
amendment, alteration, or repeal by the Congress of the United States." Lastly, the Constitution of
the Philippines provided, in section 8 of Article XIII, that "no franchise or right shall be granted to any
individual, firm, or corporation, except under the condition that it shall be subject to amendment,
alteration, or repeal by the National Assembly when the public interest so requires." The National
Assembly, by virtue of the Constitution, logically succeeded to the Congress of the United States in
the power to amend, alter or repeal any franchise or right granted prior to or after the approval of the
Constitution; and when Commonwealth Acts Nos. 146 and 454 were enacted, the National

42
Assembly, to the extent therein provided, has declared its will and purpose to amend or alter existing
certificates of public convenience.

Upon the other hand, statutes enacted for the regulation of public utilities, being a proper exercise by
the state of its police power, are applicable not only to those public utilities coming into existence
after its passage, but likewise to those already established and in operation.

Nor is there any merit in petitioner's contention, that, because of the establishment of
petitioner's operations prior to May 1, 1917, they are not subject to the regulations of the
Commission. Statutes for the regulation of public utilities are a proper exercise by the state of
its police power. As soon as the power is exercised, all phases of operation of established
utilities, become at once subject to the police power thus called into operation. Procedures'
Transportation Co. v. Railroad Commission, 251 U. S. 228, 40 Sup. Ct. 131, 64 Law. ed.
239, Law v. Railroad Commission, 184 Cal. 737, 195 Pac. 423, 14 A. L. R. 249. The statute
is applicable not only to those public utilities coming into existence after its passage, but
likewise to those already established and in operation. The 'Auto Stage and Truck
Transportation Act' (Stats. 1917, c. 213) is a statute passed in pursuance of the police
power. The only distinction recognized in the statute between those established before and
those established after the passage of the act is in the method of the creation of their
operative rights. A certificate of public convenience and necessity it required for any new
operation, but no such certificate is required of any transportation company for the operation
which was actually carried on in good faith on May 1, 1917, This distinction in the creation of
their operative rights in no way affects the power of the Commission to supervise and
regulate them. Obviously the power of the Commission to hear and dispose of complaints is
as effective against companies securing their operative rights prior to May 1, 1917, as
against those subsequently securing such right under a certificate of public convenience and
necessity. (Motor Transit Co. et al. v. Railroad Commission of California et al., 209 Pac.
586.)

Moreover, Commonwealth Acts Nos. 146 and 454 are not only the organic acts of the Public Service
Commission but are "a part of the charter of every utility company operating or seeking to operate a
franchise" in the Philippines. (Streator Aqueduct Co. v. et al., 295 Fed. 385.) The business of a
common carrier holds such a peculiar relation to the public interest that there is superinduced upon it
the right of public regulation. When private property is "affected with a public interest it ceased 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 be controlled by
the public for the common good, to the extent of the interest he has thus created. He may withdraw
his grant by discounting the use, but so long as he maintains the use he must submit to control.
Indeed, this right of regulation is so far beyond question that it is well settled that the power of the
state to exercise legislative control over public utilities may be exercised through boards of
commissioners. (Fisher vs. Yangco Steamship Company, 31 Phil., 1, citing Munn vs. Illinois, 94 U.S.
113; Georgia R. & Bkg. Co. vs. Smith, 128 U.S. 174; Budd vs. New York, 143 U.S. 517; New York
etc. R. Co. vs. Bristol 151 U.S. 556, 571; Connecticut etc. R. Co. vs. Woodruff, 153 U.S. 689;
Louisville etc. Ry Co. vs. Kentucky, 161 U.S. 677, 695.) This right of the state to regulate public
utilities is founded upon the police power, and statutes for the control and regulation of utilities are a
legitimate exercise thereof, for the protection of the public as well as of the utilities themselves. Such
statutes are, therefore, not unconstitutional, either impairing the obligation of contracts, taking
property without due process, or denying the equal protection of the laws, especially inasmuch as
the question whether or not private property shall be devoted to a public and the consequent
burdens assumed is ordinarily for the owner to decide; and if he voluntarily places his property in
public service he cannot complain that it becomes subject to the regulatory powers of the state. (51
C. J., sec. 21, pp. 9-10.) in the light of authorities which hold that a certificate of public convenience
constitutes neither a franchise nor contract, confers no property right, and is mere license or
privilege. (Burgess vs. Mayor & Alderman of Brockton, 235 Mass. 95, 100, 126 N. E. 456;
Roberto vs. Commisioners of Department of Public Utilities, 262 Mass. 583, 160 N. E. 321;
Scheible vs. Hogan, 113 Ohio St. 83, 148 N. E. 581; Martz vs. Curtis [J. L.] Cartage Co. [1937], 132
Ohio St. 271, 7 N. E. [d] 220; Manila Yellow Taxicab Co. vs. Sabellano, 59 Phil., 773.)

Whilst the challenged provisions of Commonwealth Act No. 454 are valid and constitutional, we are,
however, of the opinion that the decision of the Public Service Commission should be reversed and
the case remanded thereto for further proceedings for the reason now to be stated. The Public
Service Commission has power, upon proper notice and hearing, "to amend, modify or revoke at any
time any certificate issued under the provisions of this Act, whenever the facts and circumstances on
the strength of which said certificate was issued have been misrepresented or materially changed."

43
(Section 16, par. [m], Commonwealth Act No. 146.) The petitioner's application here was for an
increase of its equipment to enable it to comply with the conditions of its certificates of public
convenience. On the matter of limitation to twenty five (25) years of the life of its certificates of public
convenience, there had been neither notice nor opportunity given the petitioner to be heard or
present evidence. The Commission appears to have taken advantage of the petitioner to augment
petitioner's equipment in imposing the limitation of twenty-five (25) years which might as well be
twenty or fifteen or any number of years. This is, to say the least, irregular and should not be
sanctioned. There are cardinal primary rights which must be respected even in proceedings of this
character. The first of these rights is the right to a hearing, which includes the right of the party
interested or affected to present his own case and submit evidence in support thereof. In the
language of Chief Justice Hughes, in Morgan v. U.S., (304 U.S. 1, 58 S. Ct. 773, 999, 82 Law. ed.
1129), "the liberty and property of the citizen shall be protected by the rudimentary requirements of
fair play." Not only must the party be given an opportunity to present his case and to adduce
evidence tending to establish the rights which he asserts but the tribunal must consider the evidence
presented. (Chief Justice Hughes in Morgan vs. U.S., 298 U.S. 468, 56 S. Ct. 906, 80 :Law. ed.
1288.) In the language of this Court in Edwards vs. McCoy (22 Phil., 598), "the right to adduce
evidence, without the corresponding duty on the part of the board to consider it, is vain. Such right is
conspicuously futile if the person or persons to whom the evidence is presented can thrust it aside
without or consideration." While the duty to deliberate does not impose the obligation to decide right,
it does imply a necessity which cannot be disregarded, namely, that of having something to support
its decision. A decision with absolutely nothing to support it is a nullity, at least when directly
attacked. (Edwards vs. McCoy, supra.) This principle emanates from the more fundamental principle
that the genius of constitutional government is contrary to the vesting of unlimited power anywhere.
Law is both a grant and a limitation upon power.

The decision appealed from is hereby reversed and the case remanded to the Public Service
Commission for further proceedings in accordance with law and this decision, without any
pronouncement regarding costs. So ordered.

Avanceña, C.J., Imperial, Diaz, Concepcion and Moran, JJ., concur.

FACTS:

This is a case on the certificate of public convenience of petitioner Pangasinan Transportation Co. Inc
(Pantranco). The petitioner has been engaged for the past twenty years in the business of transporting
passengers in the province of Pangasinan and Tarlac, Nueva Ecija and Zambales. On August 26, 1939,
Pantranco filed with the Public Service Commission (PSC) an application to operate 10 additional buses.
PSC granted the application with 2 additional conditions which was made to apply also on their existing
business. Pantranco filed a motion for reconsideration with the Public Service Commission. Since it was
denied, Pantranco then filed a petition/ writ of certiorari.

ISSUES:

Whether the legislative power granted to Public Service Commission:

- is unconstitutional and void because it is without limitation

- constitutes undue delegation of powers

HELD:

44
The challenged provisions of Commonwealth Act No. 454 are valid and constitutional because it is a
proper delegation of legislative power, so called “Subordinate Legislation”. It is a valid delegation
because of the growing complexities of modern government, the complexities or multiplication of the
subjects of governmental regulation and the increased difficulty of administering the laws. All that has
been delegated to the Commission is the administrative function, involving the use of discretion to
carry out the will of the National Assembly having in view, in addition, the promotion of public
interests in a proper and suitable manner.

The Certificate of Public Convenience is neither a franchise nor contract, confers no property rights and
is a mere license or privilege, subject to governmental control for the good of the public. PSC has the
power, upon notice and hearing, “to amend, modify, or revoked at any time any certificate issued,
whenever the facts and circumstances so warranted. The limitation of 25 years was never heard, so the
case was remanded to PSC for further proceedings.

In addition, the Court ruled that, “the liberty and property of the citizens should be protected by the
rudimentary requirements of fair play. Not only must the party be given an opportunity to present his
case and to adduce evidence tending to establish the rights that he asserts but the tribunal must
consider the evidence presented. When private property is affected with a public interest, it ceased to
be juris privati or private use only.

FACTS:

PANTRANCO, a holder of an existing Certificate of Public Convenience is applying to operate

additional buses with the Public Service Commission (PSC) has been engaged in transporting
passengers in certain provinces by means of public transportation utility. Patranc applied for
authorization to operate 10 additional trucks. The PSC granted the application but added several
conditions for PANTRANCO’s compliance. One is that the service can be acquired by
government upon payment of the cost price less depreciation, and that the certificate shall be
valid only for a definite period of time.

ISSUE:

Whether or not PSC can impose said conditions. If so, wouldn’t this power of the PSC constitute
undue delegation of powers?

RULING:

The Supreme Court held that there was valid delegation of powers.

The theory of the separation of powers is designed by its originators to secure action at the same
time forestall overaction which necessarily results from undue concentration of powers and
thereby obtain efficiency and prevent deposition. But due to the growing complexity of modern
life, the multiplication of subjects of governmental regulation and the increased difficulty of
administering laws, there is a constantly growing tendency toward the delegation of greater
powers by the legislature, giving rise to the adoption, within certain limits, of the principle of
“subordinate legislation.”

All that has been delegated to the Commission is the administrative function, involving the use
of discretion to carry out the will of the National Assembly having in view, in addition, the
promotion of public interests in a proper and suitable manner.

45
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 100481 January 22, 1997

PHILIPPINE INTERISLAND SHIPPING ASSOCIATION OF THE PHILIPPINES, CONFERENCE OF

INTERISLAND SHIPOWNERS AND OPERATORS, UNITED PETROLEUM TANKER
OPERATORS ASSOCIATION OF THE PHILIPPINES, LIGHTERAGE ASSOCIATION OF THE
PHILIPPINES and PILOTAGE INTEGRATED SERVICES CORPORATION, petitioners,
vs.
COURT OF APPEALS, UNITED HARBOR PILOTS' ASSOCIATION OF THE PHILIPPINES, INC.
and MANILA PILOTS' ASSOCIATION, respondents.

G.R. No. 103716-17 January 22, 1997

HON. PETE NICOMEDES PRADO, in his capacity as Secretary of Transportation and

Communications and the PHILIPPINE PORTS AUTHORITY, petitioners,
vs.
COURT OF APPEALS, UNITED HARBOR PILOTS' ASSOCIATION OF THE PHILIPPINES, INC.,
respondents

G.R. No. 107720 January 22, 1997

HON. JESUS B. GARCIA, JR., in his capacity as Secretary of Transportation and

Communications and Chairman of the PHILIPPINE PORTS AUTHORITY, COMMODORE
ROGELIO A. DAYAN, in his capacity as General Manager of the Philippine Ports Authority,
and SIMEON T. SILVA, JR., in his capacity as the South Harbor Manager, Philippine Ports
Authority, petitioners,
vs.
HON. NAPOLEON R. FLOJO, in his capacity as the Presiding Judge of Branch 2, Regional
Trial Court — Manila, UNITED HARBOR PILOTS' ASSOCIATION OF THE PHILIPPINES and the
MANILA PILOT'S ASSOCIATION, respondents.

MENDOZA, J.:

Private respondent United Harbor Pilots' Association of the Philippines, Inc. (UHPAP) is the
umbrella organization of various groups rendering pilotage service in different ports of the
Philippines. The service consists of navigating a vessel from a specific point, usually about
two (2) miles off shore, to an assigned area at the pier and vice versa. When a vessel arrives,
a harbor pilot takes over the ship from its captain to maneuver it to a berth in the port, and
when it departs, the harbor pilot also maneuvers it up to a specific point off shore. The setup
is required by the fact that each port has peculiar topography with which a harbor pilot is
presumed to be more familiar than a ship captain.

The Philippine Ports Authority (PPA) is the government agency which regulates pilotage.
Pursuant to Presidential Decree No. 857, it has the power "to supervise, control, regulate . . .
such services as are necessary in the ports vested in, or belonging to the Authority" 1 and to
"control, regulate and supervise pilotage and the conduct of pilots in any Port District." 2 It
also has the power "to impose, fix, prescribe, increase or decrease such rates, charges or
fees. . . for the services rendered by the Authority or by any private organization within a Port
District." 3

These cases arose out of the efforts of harbor pilots to secure enforcement of Executive
Order No. 1088, which fixes the rates of pilotage service, and the equally determined efforts
of the PPA and its officials, the herein petitioners, to block enforcement of the executive

46
order, even as they promulgated their own orders which in the beginning fixed lower rates of
pilotage and later left the matter to self determination by parties to a pilotage contract.

I. THE FACTS

G.R. No. 103716

On February 3, 1986, shortly before the presidential elections, President Ferdinand E. Marcos,
responding to the clamor of harbor pilots for an increase in pilotage rates, issued Executive
Order No. 1088, PROVIDING FOR UNIFORM AND MODIFIED RATES FOR PILOTAGE
SERVICES RENDERED TO FOREIGN AND COASTWISE VESSELS IN ALL PRIVATE AND
PUBLIC PORTS. The executive order increased substantially the rates of the existing pilotage
fees previously fixed by the PPA.

However, the PPA refused to enforce the executive order on the ground that it had been
drawn hastily and without prior consultation: that its enforcement would create disorder in
the ports as the operators and owners of the maritime vessels had expressed opposition to
its implementation; and that the increase in pilotage, as mandated by it, was exorbitant and
detrimental to port operations. 4

The UHPAP then announced its intention to implement E.O. No. 1088 effective November 16, 1986.
This in turn drew a warning from the PPA that disciplinary sanctions would be applied to those who
would charge rates under E.O. No. 1088. The PPA instead issued Memorandum Circular No. 43-86,
fixing pilotage fees at rates lower than those provided in E.O. No. 1088.

Consequently, the UHPAP filed on January 7, 1987 a complaint for injunction with the Regional Trial
Court of Manila, against the then Minister of Transportation and Communications, Hernando Perez,
and PPA General Manager, Primitivo S. Soils, Jr. It sought a writ of preliminary mandatory injunction
for the immediate implementation of E.O. No. 1088, as well as a temporary restraining order to stop
PPA officials from imposing disciplinary sanctions against UHPAP members charging rates in
accordance with E.O. No. 1088.

The case, docketed as Civil Case No. 87-38913, was raffled to Branch 28 of the Regional Trial Court
of Manila which issued a temporary restraining order, enjoining the PPA from threatening the
UHPAP, its officers and its members with suspension and other disciplinary action for collecting
pilotage fees pursuant to E.O. No. 1088.

On March 16, 1987, the Chamber of Maritime Industries of the Philippines, William Lines, Inc.,
Loadstar Shipping Co., Inc. and Delsen Transport Lines, Inc., after obtaining leave, filed a joint
answer in intervention.

On February 26, 1988, while the case was pending, the PPA issued Administrative Order No. 02-88,
entitled IMPLEMENTING GUIDELINES ON OPEN PILOTAGE SERVICE. The PPA announced in its
order that it was leaving to the contracting parties, i.e., the shipping lines and the pilots, the fixing of
mutually acceptable rates for pilotage services, thus abandoning the rates fixed by it (PPA) under
Memorandum Circular No. 43-86, as well as those provided in E.O. No. 1088. The administrative
order provided:

Sec. 3. Terms/Conditions on Pilotage Service. — The shipping line or vessel's

agent/representative and the harbor pilot/firm chosen by the former shall agree
between themselves, among others, on what pilotage service shall be performed, the
use of tugs and their rates, taking into consideration the circumstances stated in
Section 12 of PPA AO No. 03-85, and such other conditions designed to ensure the
safe movement of the vessel in pilotage areas/grounds.

The PPA then moved to dismiss the case, contending that the issuance of its order had rendered the
case moot and academic and that consequently E.O. No. 1088 had ceased to be effective. The
UHPAP opposed the motion. Together with the Manila Pilots' Association (MPA), it filed on May 25,
1988 a petition for certiorari and prohibition in the RTC-Manila, questioning the validity of A.O. No.
02-88. This petition was docketed as Civil Case No. 88-44726 (United Harbor Pilots' Association and
Manila Pilots' Association v. Hon. Rainerio Reyes, as Acting Secretary of the Department of
Transportation and Communications and Chairman of the Philippine Ports Authority (PPA) and
Maximo Dumlao, Jr., as General Manager of the Philippine Ports Authority (PPA), et al.) and raffled

47
to Branch 2 of RTC-Manila. The factual antecedents of this case are discussed in G.R. No. 100481
below.

Meanwhile, in Civil Case 87-38913, the court, without resolving the motion to dismiss filed by the
PPA, rendered a decision 5 holding that A.O. No. 02-88 did not render the case moot and academic
and that the PPA was under obligation to comply with E.O. No. 1088 because the order had the
force of law which the PPA could not repeal.

The then Transportation Minister Hernando Perez and the PPA filed a petition for review. The
petition was filed in this Court which later referred the case to the Court of Appeals where it was
docketed as CA G.R. SP. No. 18072. On the other hand the intervenors appealed to the Court of
Appeals where this case was docketed as CA G.R. No. 21590. The two cases were then
consolidated.

In a decision rendered on October 4, 1991, the Twelfth Division 6 of the Court of Appeals affirmed the
decision of the trial court, by dismissing CA G.R. No. 21590 and denying CA G.R. SP. No. 18072.
Hence, this petition by the Secretary of Transportation and Communications and the PPA. The
intervenor shipping lines did not appeal.

G.R. No. 100481

Meanwhile, in a petition for certiorari filed before RTC-Manila, Branch 2 (Civil Case No. 88-44726),
the UHPAP and the MPA sought the annulment of A.O. No. 02-88. which in pertinent parts provided:

Sec. 1. Statement of Policy. — It is hereby declared that the provision of pilotage in

ports/harbors/areas defined as compulsory in Section 8 of PPA Administrative Order
No. 03-85, entitled, "Rules and Regulations Governing Pilotage Services, the
Conduct of Pilots and Pilotage Fees in Philippine Ports" shall be open to all licensed
harbor pilots/pilotage firms/associations appointed/accredited by this authority to
perform pilotage service.

Sec. 2. Persons Authorized to Render Pilotage. — The following individuals, persons

or groups shall be appointed/accredited by this Authority to provide pilotage service:

a. Harbor Pilots of the present Pilotage Associations of the different pilotage districts
in the Philippines. Their probationary training as required under Section 31 of PPA
AO No. 03-85 shall be undertaken by any member of said Association.

b. Members/employees of any partnership/corporation or association, including

Filipino shipmasters/ captains of vessel (domestic/foreign) of Philippine Registry and
individuals who meet the minimum qualifications and comply with the requirements
prescribed in Sec. 29 of PPA AO No. 03-85, aforestated, and who are appointed by
said firm or association and accredited as harbor pilots by this authority. New Harbor
Pilots who wish to be appointed/accredited by PPA under the open pilotage system
either as an individual pilot or as a member of any Harbor Pilot
partnership/association shall be required to undergo a practical examination, in
addition to the written examination given by the Philippine Coast Guard, prior to their
appointment/accreditation by this Authority.

The UHPAP and MPA, as petitioners below, contended (1) that A.O. No. 02-88 was issued without
the benefit of a public hearing; (2) that E.O. No. 1088 had not been repealed by any other Executive
Order or Presidential Decree and, therefore, should be given effect; and (3) that A.O. No. 02-88
contravened P.D. No. 857.

On August 21, 1989, the Philippine Interisland Shipping Association, Conference of Interisland
Shipowners and Operators, United Petroleum Tanker Operators of the Philippines, Lighterage
Association of the Philippines, and Pilotage Integrated Services Corp., were allowed to intervene.

On September 8, 1989, a writ of preliminary injunction was issued by the court, enjoining the PPA
from implementing A.O. No. 02-88 and, on October 26, 1989, judgment was rendered in favor of the
petitioners therein. The dispositive portion of the court's decision 7 reads:

WHEREFORE, for all of the foregoing, the petition is hereby granted.

48
 1. Respondents are hereby declared to have acted in excess of jurisdiction and with
grave abuse of discretion amounting to lack of jurisdiction in approving Resolution
No. 860 and in enacting Philippine Ports Authority Administrative Order No. 02-88,
the subject of which is "Implementing Guidelines on Open Pilotage Service";

2. Philippine Ports Authority Administrative Order No. 02-88 is declared null and void;

3. The preliminary injunction issued on September 8, 1989 is made permanent; and

4. Without costs.

SO ORDERED.

Respondents and the intervenors below filed a joint petition for certiorari in the Court of Appeals (CA
G.R. SP No. 19570), assailing the decision of the trial court. But their petition was dismissed for lack
of jurisdiction on the ground that the issue raised was purely legal.

The parties separately filed petitions for review before this Court. The first one, by the PPA and its
officers, was docketed as G.R. No. 100109 (Hon. Pete Nicomedes Prado, Philippine Ports Authority
and Commodore Rogelio Dayan v. United Harbor Pilots' Association of the Philippines and Manila
Pilots' Association), while the second one, by the intervenors, was docketed as G.R. No. 100481
(Philippine Interisland Shipping Association of the Philippines, Conference of Interisland Ship
Owners and Operators, United Petroleum Tanker Operators Association of the Philippines, Inc. v.
The Court of Appeals. United Harbor Pilots' Association of the Philippines and Manila Pilots'
Association.)

The petition filed by the government in G.R. No. 100109 was dismissed for failure of petitioners to
show that the Court of Appeals committed a reversible error. 8 On the other hand, the petition of the
intervenors in G.R. No. 100481 was given due course.

G.R. No. 107720

Following the denial of its petition in G.R. No. 100109, the PPA issued on July 31, 1992,
Administrative Order No. 05-92. placing harbor pilots under the control of the PPA with respect to the
scheduling and assignment of service of vessels. The PPA cited as justification "pilotage delays . . .
under the set-up where private respondents (UHPAP & MPA) assign the pilots. Intentionally or
otherwise, several vessels do not receive the pilotage service promptly, causing them operational
disruptions and additional expenses/costs." 9

Private respondents UHPAP and MPA viewed the matter differently. On October 28, 1992, they
asked the RTC-Manila, Branch 2 which heard and decided Civil Case No. 88-44726 to cite PPA
officials in contempt of court. On the same day, the trial court issued an order restraining the herein
petitioners from implementing Administrative Order No. 05-92. However, the PPA proceeded to
implement its order, prompting the UHPAP and MPA to move again to cite petitioners in contempt,
even as they questioned the validity of A.O. No. 05-92. Accordingly the trial court issued another
order on November 4, 1992, reiterating its previous order of October 28, 1992 to petitioners to refrain
from implementing A.O. No. 05-92 pending resolution of the petitions.

Making a special appearance, petitioners questioned the jurisdiction of the court and moved for the
dismissal of the petitions for contempt. Allegedly to prevent the disruption of pilotage services,
petitioners created a special team of reserve pilots to take over the pilotage service in the event
members of UHPAP/MPA refused to render pilotage services.

For the third time respondents moved to cite petitioners in contempt of court. Again petitioners
questioned the court's jurisdiction and manifested that they were adopting their previous motion to
dismiss petitions for contempt filed against them.

On November 17, 1992, the trial court denied the petitioners' motion and set the contempt petitions
for hearing on November 19, 1992. Hence, this petition, which was docketed as G.R. No. 107720
(Hon. Jesus B. Garcia, Jr. in his capacity as Secretary of Transportation and Communications and
Chairman of the Philippine Ports Authority, Commodore Rogelio A. Dayan, in his capacity as
General Manager of the Philippine Ports Authority and Simeon T. Silva, Jr., in his capacity as the

49
South Harbor Manager, Philippine Ports Authority v. Hon. Napoleon Flojo, in his capacity as the
Presiding Judge of Branch 2, RTC, Manila, UHPAP and MPA).

Pending resolution of this case, the Court ordered the parties to maintain the status quo as of
October 31, 1992.

II. THE ISSUES AND THEIR DISPOSITION

The issues raised are:

I. WHETHER OR NOT RESPONDENT COURT OF APPEALS ERRED IN

AFFIRMING THE CHALLENGED DECISION OF RTC-MANILA, BRANCH 41,
WHICH RULED THAT:

(A) CIVIL CASE NO. 87-38913 HAS NOT BECOME

MOOT AND ACADEMIC WITH THE ISSUANCE OF
ADMINISTRATIVE ORDER NO. 02-88; AND

(B) HEREIN PETITIONERS ARE BOUND TO

COMPLY WITH E.O. NO. 1088;

II. WHETHER OR NOT THE COURT OF APPEALS COMMITTED REVERSIBLE

ERROR IN DISMISSING CA G.R. SP. NO. 19570 FOR LACK OF JURISDICTION?

III. WHETHER OR NOT RESPONDENT JUDGE NAPOLEON FLOJO COMMITTED

GRAVE ABUSE OF DISCRETION IN ASSUMING JURISDICTION OVER THE
PETITIONS FOR CONTEMPT FILED BY PRIVATE RESPONDENTS AS A RESULT
OF THE ISSUANCE OF A.O. NO. 05-92?

These issues will be discussed in seriatim.

A. Whether Executive Order No. 1088 is Valid and

Petitioners are Bound to Obey it
(G.R. Nos. 103 716-17)

Executive Order No. 1088 reads:

EXECUTIVE ORDER No. 1088

PROVIDING FOR UNIFORM AND MODIFIED RATES FOR PILOTAGE SERVICES RENDERED
TO FOREIGN AND COASTWISE VESSELS IN ALL PRIVATE OR PUBLIC PHILIPPINE PORTS.

WHEREAS, the United Harbor Pilots' Association of the Philippines has clamored for the
rationalization of pilotage service charges, through the imposition of uniform and adjusted rates for
foreign and coastwise vessels in all Philippine ports, whether public or private;

WHEREAS, the plea of the Association has been echoed by a great number of Members of
Parliament and other persons and groups;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the

powers vested in me by the Constitution and by law, do hereby direct and order:

Sec. 1. The following shall be the rate of pilotage fees or charges based on tonnage for services
rendered to both foreign and coastwise vessels;

For Foreign Vessels Rate in US $ or

its Peso
Equivalent

Less than 500GT $ 30.00

500GT to 2,500GT 43.33
2,500GT to 5,000GT 71.33

50
 5,000GT to 10,000GT 133.67
10,000GT to 15,000GT 181.67
15,000GT to 20,000GT 247.00
20,000GT to 30,000GT 300.00
30,000GT to 40,000GT 416.67
40,000GT to 60,000GT 483.33
60,000GT to 80,000GT 550.00
80,000GT to 100,000GT 616.67
100,000GT to 120,000GT 666.67
120,000GT to 130,000GT 716.67
130,000GT to 140,000GT 766.67

Over 140,000 gross tonnage $0.05 or its peso equivalent every excess tonnage.
Rate for docking and undocking anchorage, conduction and shifting other related
special services is equal to 100%. Pilotage services shall be compulsory in
government and private wharves or piers,

For Coastwise Vessels: Regular

100 and under 500 gross tons P41.70

500 and under 600 gross tons 55.60
600 and under 1,000 gross tons 69.60
1,000 and under 3,000 gross tons 139.20
3,000 and under 5,000 gross tons 300.00
5,000 and over gross tons

Sec. 2. With respect to foreign vessels, payment of pilotage services shall be made
in dollars or in pesos at the prevailing exchange rate.

Sec. 3. All orders, letters of instruction, rules, regulations and other issuances
inconsistent with this Executive Order are hereby repealed or amended accordingly.

Sec. 4. This Executive Order shall take effect immediately.

Done in the City of Manila, this 3rd day of February, in the year of our Lord, nineteen
hundred and eighty-six.

(Sgd.)
FERDI
NAND
E.
MARC
OS
Preside
nt of
the
Philippi
nes

By the President:

(Sgd.) JUAN C. TUVERA

Presidential Executive Assistant

Petitioners contend that E.O. No. 1088 was merely an administrative issuance of then President
Ferdinand E. Marcos and, as such, it could be superseded by an order of the PPA. They argue that
to consider E.O. No. 1088 a statute would be to deprive the PPA of its power under its charter to fix
pilotage rates.

The contention has no merit. The fixing of rates is essentially a legislative power. 10 Indeed, the great
battle over the validity of the exercise of this power by administrative agencies was fought in the
1920s on the issue of undue delegation precisely because the power delegated was legislative. The
growing complexity of modern society, the multiplication of the subjects of governmental regulations

51
and the increased difficulty of administering the laws made the creation
of administrative agencies and the delegation to them of legislative power necessary. 11

There is no basis for petitioners' argument that rate fixing is merely an exercise of administrative
power, that if President Marcos had power to revise the rates previously fixed by the PPA through
the issuance of E.O. No. 1088, the PPA could in turn revise those fixed by the President, as the PPA
actually did in A.O. No. 43-86, which fixed lower rates of pilotage fees, and even entirely left the fees
to be paid for pilotage to the agreement of the parties to a contract. The orders previously issued by
the PPA were in the nature of subordinate legislation, promulgated by it in the exercise of delegated
power. As such these could only be amended or revised by law, as the President did by E.O. No.
1088.

It is not an answer to say that E.O. No. 1088 should not be considered a statute because that would
imply the withdrawal of power from the PPA. What determines whether an act is a law or an
administrative issuance is not its form but its nature. Here, as we have already said, the power to fix
the rates of charges for services, including pilotage service, has always been regarded as legislative
in character.

Nor is there any doubt of the power of the then President to fix rates. On February 3, 1986, when he
issued E.O. No. 1088, President Marcos was authorized under Amendment No. 6 of the 1973
Constitution to exercise legislative power, just as he was under the original 1973 Constitution, when
he issued P.D. No. 857 which created the PPA, endowing it with the power to regulate pilotage
service in Philippine ports. Although the power to fix rates for pilotage had been delegated to the
PPA, it became necessary to rationalize the rates of charges fixed by it through the imposition of
uniform rates. That is what the President did in promulgating E.O. No. 1088. As the President could
delegate the ratemaking power to the PPA, so could he exercise it in specific instances without
thereby withdrawing the power vested by P.D. No. 857, §20(a) in the PPA "to impose, fix, prescribe,
increase or decrease such rates, charges or fees . . . for the services rendered by the Authority or by
any private organization within a Port District."

It is worthy to note that E.O. No. 1088 provides for adjusted pilotage service rates without
withdrawing the power of the PPA to impose, prescribe, increase or decrease rates, charges or fees.
The reason is because E.O. No. 1088 is not meant simply to fix new pilotage rates. Its legislative
purpose is the "rationalization of pilotage service charges, through the imposition of uniform and
adjusted rates for foreign and coastwise vessels in all Philippine ports."

The case presented is similar to the fixing of wages under the Wage Rationalization Act (R.A. No.
6727) whereby minimum wages are determined by Congress and provided by law, subject to
revision by Wage Boards should later conditions warrant their revision. It cannot be denied that
Congress may intervene anytime despite the existence of administrative agencies entrusted with
wage-fixing powers, by virtue of the former's plenary power of legislation. When Congress does so,
the result is not the withdrawal of the powers delegated to the Wage Boards but cooperative
lawmaking in an area where initiative and expertise are required. The Court of Appeals is correct in
holding that —

The power of the PPA to fix pilotage rates and its authority to regulate pilotage still
remain notwithstanding the fact that a schedule for pilotage fees has already been
prescribed by the questioned executive order. PPA is at liberty to fix new rates of
pilotage subject only to the limitation that such new rates should not go below the
rates fixed under E.O. 1088. The rationale behind the limitation is no different from
what has been previously stated. Being a mere administrative agency, PPA cannot
validly issue orders or regulations that would have the effect of rendering nugatory
the provisions of the legislative issuance such as those of the executive order in
question.(emphasis supplied)

Petitioner refused to implement E.O. No. 1088 on the ground that it was issued without notice to the
PPA and that it was nothing but a "political gimmick" resorted to by then President Marcos. This
perception obviously stemmed from the fact that E.O. No. 1088 was issued shortly before the
presidential elections in 1986.

But lack of notice to the PPA is not proof that the necessary factual basis for the order was wanting.
To the contrary, the presumption is that the President had before him pertinent data on which he
based the rates prescribed in his order. Nor is the fact that the order might have been issued to curry
favor with the voters a reason for the PPA to refuse to enforce the order in question. It is not unusual

52
for lawmakers to have in mind partisan political consideration in sponsoring legislation. Yet that is
not a ground for invalidating a statute.

Moreover, an inquiry into legislative motivation is not proper since the only relevant question is
whether in issuing it the President violated constitutional and statutory restrictions on his power. The
PPA did not have any objection to the order based on constitutional ground. In fact the nearest to a
challenge on constitutional grounds was that mounted not by the PPA but by the intervenors below
which claimed that the rates fixed in E.O. No. 1088 were exorbitant and unreasonable. However,
both the trial court and the Court of Appeals overruled the objections and the intervenors apparently
accepted the ruling because they did not appeal further to this Court.

There is therefore, no legal basis for PPA's intransigence, after failing to get the new administration
of President Aquino to revoke the order by issuing its own order in the form of A.O. No. 02-88. It is
noteworthy that if President Marcos had legislative power under Amendment No. 6 of the 1973
Constitution 12 so did President Aquino under the Provisional (Freedom) Constitution 13 who could,
had she thought E.O. No. 1088 to be a mere "political gimmick," have just as easily revoked her
predecessor's order. It is tempting to ask if the administrative agency would have shown the same
act of defiance of the President's order had there been no change of administration. What this Court
said in La Perla Cigar and Cigarette Factory v. Capapas, 14 mutatis mutandis may be applied to the
cases at bar:

Was it within the powers of the then Collector Ang-angco to refuse to collect the
duties that must be paid? That is the crucial point of inquiry. We hold that it was not.

Precisely, he had to give the above legal provisions, quite explicit in character, force
and effect. His obligation was to collect the revenue for the government in
accordance with existing legal provisions, executive agreements and executive
orders certainly not excluded. He would not be living up to his official designation if
he were permitted to act otherwise. He was not named Collector of Customs for
nothing. . . . .

Certainly, if the President himself were called upon to execute the laws faithfully, a
Collector of Customs, himself a subordinate executive official, cannot be considered
as exempt in any wise from such an obligation of fealty. Similarly, if the President
cannot suspend the operation of any law, it would be presumptuous in the extreme
for one in the position of then Collector Ang-angco to consider himself as possessed
of such a prerogative. . . .

We conclude that E.O. No. 1088 is a valid statute and that the PPA is duty bound to comply with its
provisions. The PPA may increase the rates but it may not decrease them below those mandated by
E.O. No. 1088. Finally, the PPA cannot refuse to implement E.O. No. 1088 or alter it as it did in
promulgating Memorandum Circular No. 43-86. Much less could the PPA abrogate the rates fixed
and leave the fixing of rates for pilotage service to the contracting parties as it did through A. O. No.
02-88, §3. Theretofore the policy was one of governmental regulation of the pilotage business. By
leaving the matter to the determination of the parties, the PPA jettisoned this policy and changed it to
laissez-faire, something which only the legislature, or whoever is vested with lawmaking authority,
could do.

B. Whether the Court of Appeals had Jurisdiction over the

Appeal of Intervenors from the Decision of the
Trial Court Invalidating Administrative
Order No. 02-88 of the PPA
(G.R. No. 100481)

The Court of Appeals dismissed the joint appeal of the government and the intervenors from the trial
court's decision in Civil Case No. 88-44726 on the ground that the issues raised were purely legal
questions. 15 The appellate court stated:

After a painstaking review of the records We resolved to dismiss the petition for lack
of jurisdiction.

From the facts, it is clear that the main issue proffered by the appellant is whether or
not the respondent Philippine Ports Authority could validly issue rules and regulations
adopting the "open pilotage policy" pursuant to its charter (P.D. 857).

53
 xxx xxx xxx

It must be noted that while the court a quo had clearly recognized the intricate legal
issue involved, it nevertheless decided it on the merits which apparently resolved
only the procedural aspect that justified it in declaring the questioned order as null
and void. While We recognize the basic requirements of due process, the same
cannot take precedence in the case at bar in lieu of the fact that the resolution of the
present case is purely a legal question.

Moreover, it appears that appellants in the court below had filed a manifestation and
motion waiving their presentation of evidence. Instead, they opted to submit a
comprehensive memorandum of the case on the ground that the pivotal issue raised
in the petition below is purely legal in character. (p. 231, Records)

At this juncture, We are at a loss why appellants had elevated the present action
before Us where at the outset they already noted that the issue is purely legal.

If in the case of Murillo v. Consul (UDK-9748, Resolution en banc, March 1, 1990)

the Supreme Court laid down the rule that "if an appeal by notice of appeal is taken
from the Regional Trial Court to the Court of Appeals, and in the latter Court, the
appellant raised naught but issues of law, the appeal should be dismissed for lack of
jurisdiction (page 5, Resolution in Murillo)," then with more reason where as in the
case at bar public-appellants thru the Office of the Solicitor General in their
memorandum manifested that the controversy has reference to the pure legal
question of the validity of the questioned administrative order. Consequently, We
have no other recourse but to dismiss the petition on the strength of these
pronouncements.

As already stated, from this decision, both the government and the intervenors separately brought
petitions for review to this Court. In G.R. No. 100109, the government's petition was dismissed for
lack of showing that the appellate court committed reversible error. The dismissal of the
government's petition goes far to sustain the dismissal of the intervenors' petition in G.R. No. 100481
for the review of the same decision of the Court of Appeals. After all, the intervenors' petition is
based on substantially the same grounds as those stated in the government's petition. It is now
settled that the dismissal of a petition for review on certiorari is an adjudication on the merits of a
controversy. 16 Such dismissal can only mean that the Supreme Court agrees with the findings and
conclusions of the Court of Appeals or that the decision sought to be reviewed is correct. 17

It is significant to note that the Secretary of Transportation and Communications and the PPA,
petitioners in G.R. No. 100109, have conceded the finality of the dismissal of their appeal.18 Thus, the
administrative policy, the validity of which herein petitioners seek to justify by their appeal, has
already been abandoned by the very administrative agency which adopted it, with the result that the
question of validity of A.O. No. 02-88 is now moot and academic.

C. Whether the Trial Court has Jurisdiction to Hear and

Decide the Contempt Charges
against Petitioners
(G.R. No. 107720)

As already noted, following the dismissal of the government's appeal in G.R. No. 100109, the PPA
abandoned A.O. No. 02-88 which provided for "Open Pilotage System." But it subsequently
promulgated Administrative Order No. 05-92, under which the PPA assumed the power of
scheduling and assigning pilots to service vessels, allegedly regardless of whether the pilots
assigned are or are not members of the UHPAP and the MPA which theretofore had been the
exclusive agencies rendering pilotage service in Philippine ports. The UHPAP and the MPA saw the
adoption of this system as a return to the "Open Pilotage System" and, therefore, a violation of the
trial court's decision invalidating the "Open Pilotage System." They considered this to be a contempt
of the trial court.

Petitioners moved to dismiss the motions for contempt against them. They contend that even if the
motions were filed as incidents of Civil Case No. 88-44726, the RTC-Manila, Branch 2 did not have
jurisdiction to hear them because the main case was no longer before the court and the fact was that
the contempt citation was not an incident of the case, not even of its execution, but a new matter

54
raising a new cause of action which must be litigated in a separate action, even as petitioners denied
they had committed any contumacious act by the issuance of A.O. No. 05-92.

Private respondents maintained that their petitions were mere incidents of Civil Case No. 88-44726
and that the trial court has jurisdiction because in fact this Court had not yet remanded the case to
the court a quo for execution of its decision. Private respondents complain that petitioners are trying
to circumvent the final and executory decision of the court in Civil Case No. 88-44726, through the
issuance of A.O. No. 05-92.

As already noted, however, the decision of the trial court in Civil Case No. 88-44726 enjoined
petitioners from implementing the socalled "Open Pilotage System" embodied in A.O. No. 02-88. If,
as alleged, A.O. No. 05-92 is in substance a reenactment of A.O. No. 02-88, then there is basis for
private respondents' invocation of the trial court's jurisdiction to punish for contempt.

Still it is argued that the trial court lost jurisdiction over Civil Case No. 887426, upon the perfection of
their appeal from its decision. That is indeed true. "The appeal transfers the proceedings to the
appellate court, and this last court becomes thereby charged with the authority to deal with
contempts committed after perfection of the appeal."19The trial court would have jurisdiction only in
the event of an attempt to block execution of its decision and that would be after the remand of the
case to the trial court. 20 Until then the trial court would have no jurisdiction to deal with alleged
contemptuous acts.

The fly in the ointment, however, is that by accepting the dismissal of their petition for review in G.R.
No. 100109, petitioners rendered execution of the decision of the trial court superfluous. Any attempt
by them, therefore, to disobey the court's final injunction as embodied in its decision would be
properly subject to punishment for contempt. Petitioners' contention that private respondents'
complaint must be the subject of a separate action would nullify contempt proceedings as means of
securing obedience to the lawful processes of a court. Petitioners' theory would reward ingenuity and
cunning in devising orders which substantially are the same as the order previously prohibited by the
court.

We hold that the trial court has jurisdiction to hear the motions for contempt filed by private
respondent, subject to any valid defense which petitioners may interpose.

III. JUDGMENT

WHEREFORE, the several petitions in these cases are DISMISSED.

SO ORDERED.

Narvasa, C.J., Padilla, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Francisco,
Hermosisima, Jr., Panganiban and Torres, Jr., JJ., concur.

Regalado, J., took no part.

Facts:
Private respondent United Harbor Pilots' Association of the Philippines, Inc. (UHPAP) is the
umbrella organization of various groups rendering pilotage service in different ports of the
Philippines.
On February 3, 1986, shortly before the presidential elections, President Ferdinand E.
Marcos, responding to the clamor of harbor pilots for an increase in pilotage rates, issued
Executive Order No. 1088, PROVIDING FOR UNIFORM AND MODIFIED RATES FOR
PILOTAGE SERVICES RENDERED TO
FOREIGN AND COASTWISE VESSELS IN ALL PRIVATE AND PUBLIC PORTS. The
executive order increased substantially the rates of the existing pilotage fees previously
fixed by the PPA.
However, the PPA refused to enforce the executive order on the ground that it had been
drawn hastily and without prior consultation; that its enforcement would create disorder in
the ports as the operators and owners of the maritime vessels had expressed opposition to

55
its... implementation; and that the increase in pilotage, as mandated by it, was exorbitant
and detrimental to port operations.
The UHPAP then announced its intention to implement E.O. No. 1088 effective November
16, 1986.
Consequently, the UHPAP filed on January 7, 1987 a complaint for injunction with the
Regional Trial Court of Manila
On February 26, 1988, while the case was pending, the PPA issued Administrative Order
No. 02-88, entitled IMPLEMENTING GUIDELINES ON OPEN PILOTAGE SERVICE. The
PPA announced in its order that it was leaving to the contracting parties, i.e., the shipping
lines and the pilots, the... fixing of mutually acceptable rates for pilotage services, thus
abandoning the rates fixed by it (PPA) under Memorandum Circular No. 43-86, as well as
those provided in E.O. No. 1088.
The PPA then moved to dismiss the case, contending that the issuance of its order had
rendered the case moot and academic and that consequently E.O. No. 1088 had ceased to
be effective.
Meanwhile, in Civil Case 87-38913, the court, without resolving the motion to dismiss filed
by the PPA, rendered a decision[5] holding that A.O. No. 02-88 did not render the case
moot and academic and that the PPA was under obligation to comply with E.O.
No. 1088 because the order had the force of law which the PPA could not repeal.
The then Transportation Minister Hernando Perez and the PPA filed a petition for review.
The petition was filed in this Court which later referred the case to the Court of Appeals
where it was docketed as CA G.R. SP. No. 18072.
In a decision rendered on October 4, 1991, the Twelfth Division[6] of the Court of Appeals
affirmed the decision of the trial court, by dismissing CA G.R. No. 21590 and denying CA
G.R. SP. No. 18072.
Issues:
Issue No. 1

Whether Executive Order No. 1088 is Valid and

Petitioners are Bound to Obey it
Issue No. 2

Whether the Court of Appeals had Jurisdiction over the

Appeal of Intervenors from the Decision of the
Trial Court Invalidating Administrative Order
No. 02-88 of the PPA
Issue no. 3

Whether the Trial Court has Jurisdiction to Hear and

Decide the Contempt Charges... against Petitioners
Ruling:
For issue no. 1

The fixing of rates is essentially a legislative power.

On February 3, 1986, when he issued E.O. No. 1088, President Marcos was authorized
under Amendment No. 6 of the 1973 Constitution to exercise legislative power, just as he
was under the original 1973
Constitution, when he issued P.D. NO. 857 which created the PPA, endowing it with the
power to regulate pilotage service in Philippine ports. Although the power to fix rates for

56
pilotage had been delegated to the PPA, it became necessary to rationalize the rates of
charges fixed... by it through the imposition of uniform rates.
As the President could delegate the ratemaking power to the PPA, so could he exercise it in
specific instances without thereby withdrawing the power vested by P.D. No.
857, Section 20(a) in the PPA "to impose, fix, prescribe, increase or decrease such rates,
charges or fees... for the services rendered by the Authority or by any private organization
within a Port District."
We conclude that E.O. No. 1088 is a valid statute and that the PPA is duty bound to comply
with its provisions. The PPA may increase the rates but it may not decrease them below
those mandated by E.O. No. 1088.
For issue no. 2... both the government and the intervenors separately brought petitions for
review to this Court. In G.R. No. 100109, the government's petition was dismissed for lack
of showing that the appellate court committed reversible error. The... dismissal of the
government's petition goes far to sustain the dismissal of the intervenors' petition in G.R.
No. 100481 for the review of the same decision of the Court of Appeals. After all, the
intervenors' petition is based on substantially the same grounds as those stated... in the
government's petition. It is now settled that the dismissal of a petition for review on certiorari
is an adjudication on the merits of a controversy.[16] Such dismissal can only mean that the
Supreme Court agrees with the findings and conclusions of... the Court of Appeals or that
the decision sought to be reviewed is correct.
For issue no. 3

The trial court would have jurisdiction only in the event of an attempt to block execution of
its decision and that would be after the remand of the case to the trial... court.[20] Until then
the trial court would have no jurisdiction to deal with alleged contemptuous acts.
The fly in the ointment, however, is that by accepting the dismissal of their petition for
review in G.R. No. 100109, petitioners rendered execution of the decision of the trial court
superfluous. Any attempt by them, therefore, to disobey the court's final injunction as...
embodied in its decision would be properly subject to punishment for contempt. Petitioners'
contention that private respondents' complaint must be the subject of a separate action
would nullify contempt proceedings as means of securing obedience to the lawful processes
of a... court. Petitioners' theory would reward ingenuity and cunning in devising orders
which substantially are the same as the order previously prohibited by the court.
We hold that the trial court has jurisdiction to hear the motions for contempt filed by private
respondent, subject to any valid defense which petitioners may interpose.
Principles:
The fixing of rates is essentially a legislative power.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

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 BUS OPERATORS ASSOCIATION OF THE
PHILIPPINES, respondents.

57
Potenciano A. Flores for petitioner.

Robert Anthony C. Sison, Cesar B. Brillantes and Jose Z. Galsim for private respondent.

Jose F. Miravite for movants.

KAPUNAN, J.:

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.

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.

58
 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 propioimplementation 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.

59
 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.

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;

60
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.

61
 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, resplendent 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

62
 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.

63
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. 3836 insofar 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 (Osmeña 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 Amusement and Gaming 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

64
 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

65
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 a 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.10 A further
delegation of such power would indeed constitute a negation of the duty in violation of the trust
reposed in the delegate mandated to discharge it directly.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 centavos)
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

66
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 subjected, 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 authorized Fare Range Fare to be

rate*** collected 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

67
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 in 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.

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.

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.

68
No pronouncement as to costs.

SO ORDERED.

Padilla, Davide, Jr., Bellosillo and Quiason, JJ., concur.

FACTS:
In 1990, DOTC Sec. Oscar Orbos issued Memo Circular to LTFRB Chair
Remedios Fernando to allow provincial bus to change passenger rates w/in a
fare range of 15% above or below the LTFRB official rate for a 1yr. period.
This is in line with the liberalization of regulation in the transport sector which
the government intends to implement and to make progress towards greater
reliance on free market forces.

Fernando respectfully called attention of DOTC Sec. that the Public Service
Act requires publication and notice to concerned parties and public hearing. In
Dec. 1990, Provincial Bus Operators Assoc. of the Phils. (PBOAP) filed an
application for across the board fare rate increase, which was granted by
LTFRB. In 1992, then DOTC Sec. Garcia issued a memo to LTFRB
suggesting a swift action on adoption of procedures to implement the
Department Order & to lay down deregulation policies. Pursuant to LTFRB
Guideline, PBOAP, w/o benefit of public hearing announced a 20% fare rate
increase.

Petitioner Kilusang Mayo Uno (KMU) opposed the move and filed a petition
before LTFRB w/c was denied. Hence the instant petition for certiorari w/
urgent prayer for a TRO, w/c was readily granted by the Supreme Court.

ISSUE:
Whether the authority granted by LTFB to provincial buses to set a fare range
above existing authorized fare range is unconstitutional and invalid.

HELD:
The grant of power by LTFRB of its delegated authority is unconstitutional.
The doctrine of Potestas delegate non delegari (what has been delegated
cannot be delegated) is applicable because a delegated power constitutes not
only a right but a duty to be performed by the delegate thru instrumentality of
his own judgment. To delegate this power is a negation of the duty in violation
of the trust reposed in the delegate mandated to discharge such duty. Also, to
give provincial buses the power to charge their fare rates will result to a
chaotic state of affairs ad this would leave the riding public at the mercy of
transport operators who can increase their rates arbitrarily whenever it
pleases or when they deem it necessary.

FACTS: The instant petition for certiorari assails the constitutionality and validity of certain memoranda,
circulars and/or orders of the Department of Transportation and Communications and the Land
Transportation Franchising and Regulatory Board which, among others, 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.

69
ISSUE: Whether or not the authority given by the LTFRB to provincial bus operators to set a fare range
over and above the existing authorized fare without having to file a petition for the purpose, is
unconstitutional, invalid and illegal as it constitutes an undue delegation of legislative power

RULING: Yes. 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 a 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. A further
delegation of such power would indeed constitute a negation of the duty in violation of the trust
reposed in the delegate mandated to discharge it directly. 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.

RATIO: Basis of Doctrine of Non-Delegation of Powers. - A further delegation of such power would indeed
constitute a negation of the duty in violation of the trust reposed in the delegate mandated to discharge
it directly.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-23825 December 24, 1965

EMMANUEL PELAEZ, petitioner,

vs.
THE AUDITOR GENERAL, respondent.

Zulueta, Gonzales, Paculdo and Associates for petitioner.

Office of the Solicitor General for respondent.

CONCEPCION, J.:

During the period from September 4 to October 29, 1964 the President of the Philippines, purporting
to act pursuant to Section 68 of the Revised Administrative Code, issued Executive Orders Nos. 93
to 121, 124 and 126 to 129; creating thirty-three (33) municipalities enumerated in the margin.1 Soon
after the date last mentioned, or on November 10, 1964 petitioner Emmanuel Pelaez, as Vice
President of the Philippines and as taxpayer, instituted the present special civil action, for a writ of
prohibition with preliminary injunction, against the Auditor General, to restrain him, as well as his
representatives and agents, from passing in audit any expenditure of public funds in implementation
of said executive orders and/or any disbursement by said municipalities.

Petitioner alleges that said executive orders are null and void, upon the ground that said Section 68
has been impliedly repealed by Republic Act No. 2370 and constitutes an undue delegation of
legislative power. Respondent maintains the contrary view and avers that the present action is
premature and that not all proper parties — referring to the officials of the new political subdivisions
in question — have been impleaded. Subsequently, the mayors of several municipalities adversely
affected by the aforementioned executive orders — because the latter have taken away from the
former the barrios composing the new political subdivisions — intervened in the case. Moreover,
Attorneys Enrique M. Fernando and Emma Quisumbing-Fernando were allowed to and did appear
as amici curiae.

The third paragraph of Section 3 of Republic Act No. 2370, reads:

70
 Barrios shall not be created or their boundaries altered nor their names changed except
under the provisions of this Act or by Act of Congress.

Pursuant to the first two (2) paragraphs of the same Section 3:

All barrios existing at the time of the passage of this Act shall come under the provisions
hereof.

Upon petition of a majority of the voters in the areas affected, a new barrio may be created or
the name of an existing one may be changed by the provincial board of the province, upon
recommendation of the council of the municipality or municipalities in which the proposed
barrio is stipulated. The recommendation of the municipal council shall be embodied in a
resolution approved by at least two-thirds of the entire membership of the said council:
Provided, however, That no new barrio may be created if its population is less than five
hundred persons.

Hence, since January 1, 1960, when Republic Act No. 2370 became effective, barrios may "not be
created or their boundaries altered nor their names changed" except by Act of Congress or of the
corresponding provincial board "upon petition of a majority of the voters in the areas affected" and
the "recommendation of the council of the municipality or municipalities in which the proposed barrio
is situated." Petitioner argues, accordingly: "If the President, under this new law, cannot even create
a barrio, can he create a municipality which is composed of several barrios, since barrios are units of
municipalities?"

Respondent answers in the affirmative, upon the theory that a new municipality can be created
without creating new barrios, such as, by placing old barrios under the jurisdiction of the new
municipality. This theory overlooks, however, the main import of the petitioner's argument, which is
that the statutory denial of the presidential authority to create a new barrio implies a negation of the
bigger power to create municipalities, each of which consists of several barrios. The cogency and
force of this argument is too obvious to be denied or even questioned. Founded upon logic and
experience, it cannot be offset except by a clear manifestation of the intent of Congress to the
contrary, and no such manifestation, subsequent to the passage of Republic Act No. 2379, has been
brought to our attention.

Moreover, section 68 of the Revised Administrative Code, upon which the disputed executive orders
are based, provides:

The (Governor-General) President of the Philippines may by executive order define the
boundary, or boundaries, of any province, subprovince, municipality, [township] municipal
district, or other political subdivision, and increase or diminish the territory comprised therein,
may divide any province into one or more subprovinces, separate any political division other
than a province, into such portions as may be required, merge any of such subdivisions or
portions with another, name any new subdivision so created, and may change the seat of
government within any subdivision to such place therein as the public welfare may require:
Provided, That the authorization of the (Philippine Legislature) Congress of the Philippines
shall first be obtained whenever the boundary of any province or subprovince is to be defined
or any province is to be divided into one or more subprovinces. When action by the
(Governor-General) President of the Philippines in accordance herewith makes necessary a
change of the territory under the jurisdiction of any administrative officer or any judicial
officer, the (Governor-General) President of the Philippines, with the recommendation and
advice of the head of the Department having executive control of such officer, shall redistrict
the territory of the several officers affected and assign such officers to the new districts so
formed.

Upon the changing of the limits of political divisions in pursuance of the foregoing authority,
an equitable distribution of the funds and obligations of the divisions thereby affected shall be
made in such manner as may be recommended by the (Insular Auditor) Auditor General and
approved by the (Governor-General) President of the Philippines.

Respondent alleges that the power of the President to create municipalities under this section does
not amount to an undue delegation of legislative power, relying upon Municipality of Cardona vs.
Municipality of Binañgonan (36 Phil. 547), which, he claims, has settled it. Such claim is untenable,
for said case involved, not the creation of a new municipality, but a mere transfer of territory — from
an already existing municipality (Cardona) to another municipality (Binañgonan), likewise, existing at

71
the time of and prior to said transfer (See Gov't of the P.I. ex rel. Municipality of Cardona vs.
Municipality, of Binañgonan [34 Phil. 518, 519-5201) — in consequence of the fixing and definition,
pursuant to Act No. 1748, of the common boundaries of two municipalities.

It is obvious, however, that, whereas the power to fix such common boundary, in order to avoid or
settle conflicts of jurisdiction between adjoining municipalities, may partake of
an administrative nature — involving, as it does, the adoption of means and ways to carry into
effect the law creating said municipalities — the authority to create municipal corporations is
essentially legislative in nature. In the language of other courts, it is "strictly a legislative function"
(State ex rel. Higgins vs. Aicklen, 119 S. 425, January 2, 1959) or "solely and exclusively the
exercise of legislative power" (Udall vs. Severn, May 29, 1938, 79 P. 2d 347-349). As the Supreme
Court of Washington has put it (Territory ex rel. Kelly vs. Stewart, February 13, 1890, 23 Pac. 405,
409), "municipal corporations are purely the creatures of statutes."

Although1a Congress may delegate to another branch of the Government the power to fill in the
details in the execution, enforcement or administration of a law, it is essential, to forestall a violation
of the principle of separation of powers, that said law: (a) be complete in itself — it must set forth
therein the policy to be executed, carried out or implemented by the delegate2 — and (b) fix a
standard — the limits of which are sufficiently determinate or determinable — to which the delegate
must conform in the performance of his functions.2a Indeed, without a statutory declaration of policy,
the delegate would in effect, make or formulate such policy, which is the essence of every law; and,
without the aforementioned standard, there would be no means to determine, with reasonable
certainty, whether the delegate has acted within or beyond the scope of his authority.2b Hence, he
could thereby arrogate upon himself the power, not only to make the law, but, also — and this is
worse — to unmake it, by adopting measures inconsistent with the end sought to be attained by the
Act of Congress, thus nullifying the principle of separation of powers and the system of checks and
balances, and, consequently, undermining the very foundation of our Republican system.

Section 68 of the Revised Administrative Code does not meet these well settled requirements for a
valid delegation of the power to fix the details in the enforcement of a law. It does not enunciate any
policy to be carried out or implemented by the President. Neither does it give a standard sufficiently
precise to avoid the evil effects above referred to. In this connection, we do not overlook the fact
that, under the last clause of the first sentence of Section 68, the President:

... may change the seat of the government within any subdivision to such place therein as
the public welfare may require.

It is apparent, however, from the language of this clause, that the phrase "as the public welfare may
require" qualified, not the clauses preceding the one just quoted, but only the place to which the seat
of the government may be transferred. This fact becomes more apparent when we consider that said
Section 68 was originally Section 1 of Act No. 1748,3 which provided that, "whenever in the judgment
of the Governor-General the public welfare requires, he may, by executive order," effect the changes
enumerated therein (as in said section 68), including the change of the seat of the government "to
such place ... as the public interest requires." The opening statement of said Section 1 of Act No.
1748 — which was not included in Section 68 of the Revised Administrative Code — governed the
time at which, or the conditions under which, the powers therein conferred could be exercised;
whereas the last part of the first sentence of said section referred exclusively to the place to which
the seat of the government was to be transferred.

At any rate, the conclusion would be the same, insofar as the case at bar is concerned, even if we
assumed that the phrase "as the public welfare may require," in said Section 68, qualifies all other
clauses thereof. It is true that in Calalang vs. Williams (70 Phil. 726) and People vs. Rosenthal (68
Phil. 328), this Court had upheld "public welfare" and "public interest," respectively, as sufficient
standards for a valid delegation of the authority to execute the law. But, the doctrine laid down in
these cases — as all judicial pronouncements — must be construed in relation to the specific facts
and issues involved therein, outside of which they do not constitute precedents and have no binding
effect.4 The law construed in the Calalang case conferred upon the Director of Public Works, with the
approval of the Secretary of Public Works and Communications, the power to issue rules and
regulations to promote safe transitupon national roads and streets. Upon the other hand, the
Rosenthal case referred to the authority of the Insular Treasurer, under Act No. 2581, to issue and
cancel certificates or permits for the sale of speculative securities. Both cases involved grants
to administrative officers of powers related to the exercise of their administrative functions, calling for
the determination of questions of fact.

72
Such is not the nature of the powers dealt with in section 68. As above indicated, the creation of
municipalities, is not an administrative function, but one which is essentially and eminently
legislative in character. The question of whether or not "public interest" demands the exercise of
such power is not one of fact. it is "purely a legislativequestion "(Carolina-Virginia Coastal Highway
vs. Coastal Turnpike Authority, 74 S.E. 2d. 310-313, 315-318), or a political question (Udall vs.
Severn, 79 P. 2d. 347-349). As the Supreme Court of Wisconsin has aptly characterized it, "the
question as to whether incorporation is for the best interest of the community in any case is
emphatically a question of public policy and statecraft" (In re Village of North Milwaukee, 67 N.W.
1033, 1035-1037).

For this reason, courts of justice have annulled, as constituting undue delegation of legislative
powers, state laws granting the judicial department, the power to determine whether certain
territories should be annexed to a particular municipality (Udall vs. Severn, supra, 258-359); or
vesting in a Commission the right to determine the plan and frame of government of proposed
villages and what functions shall be exercised by the same, although the powers and functions of the
village are specifically limited by statute (In re Municipal Charters, 86 Atl. 307-308); or conferring
upon courts the authority to declare a given town or village incorporated, and designate its metes
and bounds, upon petition of a majority of the taxable inhabitants thereof, setting forth the area
desired to be included in such village (Territory ex rel Kelly vs. Stewart, 23 Pac. 405-409); or
authorizing the territory of a town, containing a given area and population, to be incorporated as a
town, on certain steps being taken by the inhabitants thereof and on certain determination by a court
and subsequent vote of the inhabitants in favor thereof, insofar as the court is allowed to determine
whether the lands embraced in the petition "ought justly" to be included in the village, and whether
the interest of the inhabitants will be promoted by such incorporation, and to enlarge and diminish
the boundaries of the proposed village "as justice may require" (In re Villages of North Milwaukee, 67
N.W. 1035-1037); or creating a Municipal Board of Control which shall determine whether or not the
laying out, construction or operation of a toll road is in the "public interest" and whether the
requirements of the law had been complied with, in which case the board shall enter an order
creating a municipal corporation and fixing the name of the same (Carolina-Virginia Coastal Highway
vs. Coastal Turnpike Authority, 74 S.E. 2d. 310).

Insofar as the validity of a delegation of power by Congress to the President is concerned, the case
of Schechter Poultry Corporation vs. U.S. (79 L. Ed. 1570) is quite relevant to the one at bar. The
Schechter case involved the constitutionality of Section 3 of the National Industrial Recovery Act
authorizing the President of the United States to approve "codes of fair competition" submitted to him
by one or more trade or industrial associations or corporations which "impose no inequitable
restrictions on admission to membership therein and are truly representative," provided that such
codes are not designed "to promote monopolies or to eliminate or oppress small enterprises and will
not operate to discriminate against them, and will tend to effectuate the policy" of said Act. The
Federal Supreme Court held:

To summarize and conclude upon this point: Sec. 3 of the Recovery Act is without
precedent. It supplies no standards for any trade, industry or activity. It does not undertake to
prescribe rules of conduct to be applied to particular states of fact determined by appropriate
administrative procedure. Instead of prescribing rules of conduct, it authorizes the making of
codes to prescribe them. For that legislative undertaking, Sec. 3 sets up no standards, aside
from the statement of the general aims of rehabilitation, correction and expansion described
in Sec. 1. In view of the scope of that broad declaration, and of the nature of the few
restrictions that are imposed, the discretion of the President in approving or prescribing
codes, and thus enacting laws for the government of trade and industry throughout the
country, is virtually unfettered. We think that the code making authority thus conferred is an
unconstitutional delegation of legislative power.

If the term "unfair competition" is so broad as to vest in the President a discretion that is "virtually
unfettered." and, consequently, tantamount to a delegation of legislative power, it is obvious that
"public welfare," which has even a broader connotation, leads to the same result. In fact, if the
validity of the delegation of powers made in Section 68 were upheld, there would no longer be any
legal impediment to a statutory grant of authority to the President to do anything which, in his
opinion, may be required by public welfare or public interest. Such grant of authority would be a
virtual abdication of the powers of Congress in favor of the Executive, and would bring about a total
collapse of the democratic system established by our Constitution, which it is the special duty and
privilege of this Court to uphold.

73
It may not be amiss to note that the executive orders in question were issued after the legislative
bills for the creation of the municipalities involved in this case had failed to pass Congress. A better
proof of the fact that the issuance of said executive orders entails the exercise of purely legislative
functions can hardly be given.

Again, Section 10 (1) of Article VII of our fundamental law ordains:

The President shall have control of all the executive departments, bureaus, or offices,
exercise general supervision over all local governments as may be provided by law, and take
care that the laws be faithfully executed.

The power of control under this provision implies the right of the President to interfere in the exercise
of such discretion as may be vested by law in the officers of the executive departments, bureaus, or
offices of the national government, as well as to act in lieu of such officers. This power is denied by
the Constitution to the Executive, insofar as local governments are concerned. With respect to the
latter, the fundamental law permits him to wield no more authority than that of checking whether said
local governments or the officers thereof perform their duties as provided by statutory enactments.
Hence, the President cannot interfere with local governments, so long as the same or its officers act
Within the scope of their authority. He may not enact an ordinance which the municipal council has
failed or refused to pass, even if it had thereby violated a duty imposed thereto by law, although he
may see to it that the corresponding provincial officials take appropriate disciplinary action therefor.
Neither may he vote, set aside or annul an ordinance passed by said council within the scope of its
jurisdiction, no matter how patently unwise it may be. He may not even suspend an elective official
of a regular municipality or take any disciplinary action against him, except on appeal from a
decision of the corresponding provincial board.5

Upon the other hand if the President could create a municipality, he could, in effect, remove any of
its officials, by creating a new municipality and including therein the barrio in which the official
concerned resides, for his office would thereby become vacant.6 Thus, by merely brandishing the
power to create a new municipality (if he had it), without actually creating it, he could compel local
officials to submit to his dictation, thereby, in effect, exercising over them the power of control denied
to him by the Constitution.

Then, also, the power of control of the President over executive departments, bureaus or offices
implies no more than the authority to assume directly the functions thereof or to interfere in the
exercise of discretion by its officials. Manifestly, such control does not include the authority either to
abolish an executive department or bureau, or to create a new one. As a consequence, the alleged
power of the President to create municipal corporations would necessarily connote the exercise by
him of an authority even greater than that of control which he has over the executive departments,
bureaus or offices. In other words, Section 68 of the Revised Administrative Code does not merely
fail to comply with the constitutional mandate above quoted. Instead of giving the President less
power over local governments than that vested in him over the executive departments, bureaus or
offices, it reverses the process and does the exact opposite, by conferring upon him more power
over municipal corporations than that which he has over said executive departments, bureaus or
offices.

In short, even if it did entail an undue delegation of legislative powers, as it certainly does, said
Section 68, as part of the Revised Administrative Code, approved on March 10, 1917, must be
deemed repealed by the subsequent adoption of the Constitution, in 1935, which is utterly
incompatible and inconsistent with said statutory enactment.7

There are only two (2) other points left for consideration, namely, respondent's claim (a) that "not all
the proper parties" — referring to the officers of the newly created municipalities — "have been
impleaded in this case," and (b) that "the present petition is premature."

As regards the first point, suffice it to say that the records do not show, and the parties do not claim,
that the officers of any of said municipalities have been appointed or elected and assumed office. At
any rate, the Solicitor General, who has appeared on behalf of respondent Auditor General, is the
officer authorized by law "to act and represent the Government of the Philippines, its offices and
agents, in any official investigation, proceeding or matter requiring the services of a lawyer" (Section
1661, Revised Administrative Code), and, in connection with the creation of the aforementioned
municipalities, which involves a political, not proprietary, function, said local officials, if any, are mere
agents or representatives of the national government. Their interest in the case at bar has,
accordingly, been, in effect, duly represented.8

74
With respect to the second point, respondent alleges that he has not as yet acted on any of the
executive order & in question and has not intimated how he would act in connection therewith. It is,
however, a matter of common, public knowledge, subject to judicial cognizance, that the President
has, for many years, issued executive orders creating municipal corporations and that the same
have been organized and in actual operation, thus indicating, without peradventure of doubt, that the
expenditures incidental thereto have been sanctioned, approved or passed in audit by the General
Auditing Office and its officials. There is no reason to believe, therefore, that respondent would adopt
a different policy as regards the new municipalities involved in this case, in the absence of an
allegation to such effect, and none has been made by him.

WHEREFORE, the Executive Orders in question are hereby declared null and void ab initio and the
respondent permanently restrained from passing in audit any expenditure of public funds in
implementation of said Executive Orders or any disbursement by the municipalities above referred
to. It is so ordered.

Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera and Dizon, JJ., concur.

Zaldivar, J., took no part.

Separate Opinions

BENGZON, J.P., J., concurring and dissenting:

A sign of progress in a developing nation is the rise of new municipalities. Fostering their rapid
growth has long been the aim pursued by all three branches of our Government.

So it was that the Governor-General during the time of the Jones Law was given authority by the
Legislature (Act No. 1748) to act upon certain details with respect to said local governments, such as
fixing of boundaries, subdivisions and mergers. And the Supreme Court, within the framework of the
Jones Law, ruled in 1917 that the execution or implementation of such details, did not entail
abdication of legislative power (Government vs. Municipality of Binañgonan, 34 Phil. 518;
Municipality of Cardona vs. Municipality of Binañgonan, 36 Phil. 547). Subsequently, Act No. 1748's
aforesaid statutory authorization was embodied in Section 68 of the Revised Administrative Code.
And Chief Executives since then up to the present continued to avail of said provision, time and
again invoking it to issue executive orders providing for the creation of municipalities.

From September 4, 1964 to October 29, 1964 the President of the Philippines issued executive
orders to create thirty-three municipalities pursuant to Section 68 of the Revised Administrative
Code. Public funds thereby stood to be disbursed in implementation of said executive orders.

Suing as private citizen and taxpayer, Vice President Emmanuel Pelaez filed in this Court a petition
for prohibition with preliminary injunction against the Auditor General. It seeks to restrain the
respondent or any person acting in his behalf, from passing in audit any expenditure of public funds
in implementation of the executive orders aforementioned.

Petitioner contends that the President has no power to create a municipality by executive order. It is
argued that Section 68 of the Revised Administrative Code of 1917, so far as it purports to grant any
such power, is invalid or, at the least, already repealed, in light of the Philippine Constitution and
Republic Act 2370 (The Barrio Charter).

Section 68 is again reproduced hereunder for convenience:

SEC. 68. General authority of [Governor-General) President of the Philippines to fix

boundaries and make new subdivisions. — The [Governor-General] President of the
Philippines may by executive order define the boundary, or boundaries, of any province,
subprovince, municipality, [township] municipal district, or other political subdivision, and
increase or diminish the territory comprised therein, may divide any province into one or
more subprovinces, separate any political division other than a province, into such portions
as may be required, merge any of such subdivisions or portions with another, name any new
subdivision so created, and may change the seat of government within any subdivision to

75
 such place therein as the public welfare may require: Provided, That the authorization of the
[Philippine Legislature] Congress of the Philippines shall first be obtained whenever the
boundary of any province or subprovince is to be defined or any province is to be divided into
one or more subprovinces. When action by the [Governor-General] President of the
Philippines in accordance herewith makes necessary a change of the territory under the
jurisdiction of any administrative officer or any judicial officer, the [Governor-General]
President of the Philippines, with the recommendation and advice of the head of the
Department having executive control of such officer, shall redistrict the territory of the several
officers to the new districts so formed.

Upon the changing of the limits of political divisions in pursuance of the foregoing authority,
an equitable distribution of the funds and obligations of the divisions thereby affected shall be
made in such manner as may be recommended by the [Insular Auditor] Auditor General and
approved by the [Governor-General] President of the Philippines.

From such working I believe that power to create a municipality is included: to "separate any political
division other than a province, into such portions as may be required, merge any such subdivisions
or portions with another, name any new subdivision so created." The issue, however, is whether the
legislature can validly delegate to the Executive such power.

The power to create a municipality is legislative in character. American authorities have therefore
favored the view that it cannot be delegated; that what is delegable is not the power to create
municipalities but only the power to determine the existence of facts under which creation of a
municipality will result (37 Am. Jur. 628).

The test is said to lie in whether the statute allows any discretion on the delegate as to whether the
municipal corporation should be created. If so, there is an attempted delegation of legislative power
and the statute is invalid (Ibid.). Now Section 68 no doubt gives the President such discretion, since
it says that the President "may by executive order" exercise the powers therein granted.
Furthermore, Section 5 of the same Code states:

SEC. 5. Exercise of administrative discretion — The exercise of the permissive powers of all
executive or administrative officers and bodies is based upon discretion, and when such
officer or body is given authority to do any act but not required to do such act, the doing of
the same shall be dependent on a sound discretion to be exercised for the good of the
service and benefit of the public, whether so expressed in the statute giving the authority or
not.

Under the prevailing rule in the United States — and Section 68 is of American origin — the
provision in question would be an invalid attempt to delegate purely legislative powers, contrary to
the principle of separation of powers.

It is very pertinent that Section 68 should be considered with the stream of history in mind. A proper
knowledge of the past is the only adequate background for the present. Section 68 was adopted half
a century ago. Political change, two world wars, the recognition of our independence and rightful
place in the family of nations, have since taken place. In 1917 the Philippines had for its Organic Act
the Jones Law. And under the setup ordained therein no strict separation of powers was adhered to.
Consequently, Section 68 was not constitutionally objectionable at the time of its enactment.

The advent of the Philippine Constitution in 1935 however altered the situation. For not only was
separation of powers strictly ordained, except only in specific instances therein provided, but the
power of the Chief Executive over local governments suffered an explicit reduction.

Formerly, Section 21 of the Jones Law provided that the Governor-General "shall have general
supervision and control of all the departments and bureaus of the government in the Philippine
Islands." Now Section 10 (1), Article VII of the Philippine Constitution provides: "The President shall
have control of all the executive departments, bureaus, or offices, exercise general supervision over
all local governments as may be provided by law, and take care that the laws be faithfully executed.

In short, the power of control over local governments had now been taken away from the Chief
Executive. Again, to fully understand the significance of this provision, one must trace its
development and growth.

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As early as April 7, 1900 President McKinley of the United States, in his Instructions to the Second
Philippine Commission, laid down the policy that our municipal governments should be "subject to
the least degree of supervision and control" on the part of the national government. Said supervision
and control was to be confined within the "narrowest limits" or so much only as "may be necessary to
secure and enforce faithful and efficient administration by local officers." And the national
government "shall have no direct administration except of matters of purely general concern." (See
Hebron v. Reyes, L-9158, July 28, 1958.)

All this had one aim, to enable the Filipinos to acquire experience in the art of self-government, with
the end in view of later allowing them to assume complete management and control of the
administration of their local affairs. Such aim is the policy now embodied in Section 10 (1), Article VII
of the Constitution (Rodriguez v. Montinola, 50 O.G. 4820).

It is the evident decree of the Constitution, therefore, that the President shall have no power of
control over local governments. Accordingly, Congress cannot by law grant him such power (Hebron
v. Reyes, supra). And any such power formerly granted under the Jones Law thereby became
unavoidably inconsistent with the Philippine Constitution.

It remains to examine the relation of the power to create and the power to control local governments.
Said relationship has already been passed upon by this Court in Hebron v. Reyes, supra. In said
case, it was ruled that the power to control is an incident of the power to create or abolish
municipalities. Respondent's view, therefore, that creating municipalities and controlling their local
governments are "two worlds apart," is untenable. And since as stated, the power to control local
governments can no longer be conferred on or exercised by the President, it follows a fortiori that the
power to create them, all the more cannot be so conferred or exercised.

I am compelled to conclude, therefore, that Section 10 (1), Article VII of the Constitution has
repealed Section 68 of the Revised Administrative Code as far as the latter empowers the President
to create local governments. Repeal by the Constitution of prior statutes inconsistent with it has
already been sustained in De los Santos v. MaIlare, 87 Phil. 289. And it was there held that such
repeal differs from a declaration of unconstitutionality of a posterior legislation, so much so that only
a majority vote of the Court is needed to sustain a finding of repeal.

Since the Constitution repealed Section 68 as far back as 1935, it is academic to ask whether
Republic Act 2370 likewise has provisions in conflict with Section 68 so as to repeal it. Suffice it to
state, at any rate, that statutory prohibition on the President from creating a barrio does not, in my
opinion, warrant the inference of statutory prohibition for creating a municipality. For although
municipalities consist of barrios, there is nothing in the statute that would preclude creation of new
municipalities out of pre-existing barrios.

It is not contrary to the logic of local autonomy to be able to create larger political units and unable to
create smaller ones. For as long ago observed in President McKinley's Instructions to the Second
Philippine Commission, greater autonomy is to be imparted to the smaller of the two political units.
The smaller the unit of local government, the lesser is the need for the national government's
intervention in its political affairs. Furthermore, for practical reasons, local autonomy cannot be given
from the top downwards. The national government, in such a case, could still exercise power over
the supposedly autonomous unit, e.g., municipalities, by exercising it over the smaller units that
comprise them, e.g., the barrios. A realistic program of decentralization therefore calls for autonomy
from the bottom upwards, so that it is not surprising for Congress to deny the national government
some power over barrios without denying it over municipalities. For this reason, I disagree with the
majority view that because the President could not create a barrio under Republic Act 2370,
a fortiori he cannot create a municipality.

It is my view, therefore, that the Constitution, and not Republic Act 2370, repealed Section 68 of the
Revised Administrative Code's provision giving the President authority to create local governments.
And for this reason I agree with the ruling in the majority opinion that the executive orders in
question are null and void.

In thus ruling, the Court is but sustaining the fulfillment of our historic desire to be free and
independent under a republican form of government, and exercising a function derived from the very
sovereignty that it upholds. Executive orders declared null and void.

Makalintal and Regala, JJ., concur.

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Facts:
The President of the Philippines, purporting to act pursuant to Section 68 of the Revised
Administrative Code, issued Executive Orders Nos. 93 to 121, 124 and 126 to 129; creating
thirty-three (33) municipalities enumerated in the margin. Petitioner Emmanuel Pelaez, as Vice
President of the Philippines and as taxpayer, instituted the present special civil action, for a writ
of prohibition with preliminary injunction, against the Auditor General, to restrain him, as well
as his representatives and agents, from passing in audit any expenditure of public funds in
implementation of said executive orders and/or any disbursement by said municipalities.
Petitioner alleges that said executive orders are null and void, upon the ground that said Section
68 has been impliedly repealed by Republic Act No. 2370 effective January 1, 1960 and
constitutes an undue delegation of legislative power. The third paragraph of Section 3 of
Republic Act No. 2370, reads: “Barrios shall not be created or their boundaries altered nor their
names changed except under the provisions of this Act or by Act of Congress.”
Issues:
Whether or not Section 68 of Revised Administrative Code constitutes an undue delegation of
legislative power.

Discussions:
Section 10 (1) of Article VII of our fundamental law ordains:
The President shall have control of all the executive departments, bureaus, or offices, exercise
general supervision over all local governments as may be provided by law, and take care that the
laws be faithfully executed.
The power of control under this provision implies the right of the President to interfere in the
exercise of such discretion as may be vested by law in the officers of the executive departments,
bureaus, or offices of the national government, as well as to act in lieu of such officers. This
power is denied by the Constitution to the Executive, insofar as local governments are
concerned. With respect to the latter, the fundamental law permits him to wield no more
authority than that of checking whether said local governments or the officers thereof perform
their duties as provided by statutory enactments. Hence, the President cannot interfere with local
governments, so long as the same or its officers act within the scope of their authority.

Rulings:
Yes. It did entail an undue delegation of legislative powers. The alleged power of the President
to create municipal corporations would necessarily connote the exercise by him of an authority
even greater than that of control which he has over the executive departments, bureaus or offices.
In other words, Section 68 of the Revised Administrative Code does not merely fail to comply
with the constitutional mandate. Instead of giving the President less power over local
governments than that vested in him over the executive departments, bureaus or offices, it
reverses the process and does the exact opposite, by conferring upon him more power over
municipal corporations than that which he has over said executive departments, bureaus or
offices.

15 SCRA 569 – Political Law – Sufficient Standard Test and Completeness Test

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In 1964, President Ferdinand Marcos issued executive orders creating 33 municipalities –
this was purportedly pursuant to Section 68 of the Revised Administrative Code which
provides in part:
The President may by executive order define the boundary… of any… municipality… and
may change the seat of government within any subdivision to such place therein as the
public welfare may require…
The then Vice President, Emmanuel Pelaez, as a taxpayer, filed a special civil action to
prohibit the auditor general from disbursing funds to be appropriated for the said
municipalities. Pelaez claims that the EOs were unconstitutional. He said that Section 68 of
the RAC had been impliedly repealed by Section 3 of RA 2370 which provides that barrios
may “not be created or their boundaries altered nor their names changed” except by Act of
Congress. Pelaez argues: “If the President, under this new law, cannot even create a barrio,
how can he create a municipality which is composed of several barrios, since barrios are
units of municipalities?”
The Auditor General countered that there was no repeal and that only barrios were barred
from being created by the President. Municipalities are exempt from the bar and that a
municipality can be created without creating barrios. He further maintains that through Sec.
68 of the RAC, Congress has delegated such power to create municipalities to the
President.
ISSUE: Whether or not Congress has delegated the power to create barrios to the
President by virtue of Sec. 68 of the RAC.
HELD: No. There was no delegation here. Although Congress may delegate to another
branch of the government the power to fill in the details in the execution, enforcement or
administration of a law, it is essential, to forestall a violation of the principle of separation of
powers, that said law: (a) be complete in itself — it must set forth therein the policy to be
executed, carried out or implemented by the delegate — and (b) fix a standard — the limits
of which are sufficiently determinate or determinable — to which the delegate must conform
in the performance of his functions. In this case, Sec. 68 lacked any such standard. Indeed,
without a statutory declaration of policy, the delegate would, in effect, make or formulate
such policy, which is the essence of every law; and, without the aforementioned standard,
there would be no means to determine, with reasonable certainty, whether the delegate has
acted within or beyond the scope of his authority.
Further, although Sec. 68 provides the qualifying clause “as the public welfare may require”
– which would mean that the President may exercise such power as the public welfare may
require – is present, still, such will not replace the standard needed for a proper delegation
of power. In the first place, what the phrase “as the public welfare may require” qualifies is
the text which immediately precedes hence, the proper interpretation is “the President may
change the seat of government within any subdivision to such place therein as the public
welfare may require.” Only the seat of government may be changed by the President when
public welfare so requires and NOT the creation of municipality.
The Supreme Court declared that the power to create municipalities is essentially and
eminently legislative in character not administrative (not executive).

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-45685 November 16, 1937

THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI BANKING
CORPORATION,petitioners,
vs.

79
JOSE O. VERA, Judge . of the Court of First Instance of Manila, and MARIANO CU
UNJIENG, respondents.

Office of the Solicitor General Tuason and City Fiscal Diaz for the Government.
De Witt, Perkins and Ponce Enrile for the Hongkong and Shanghai Banking Corporation.
Vicente J. Francisco, Feria and La O, Orense and Belmonte, and Gibbs and McDonough for
respondent Cu Unjieng.
No appearance for respondent Judge.

LAUREL, J.:

This is an original action instituted in this court on August 19, 1937, for the issuance of the writ
of certiorari and of prohibition to the Court of First Instance of Manila so that this court may review
the actuations of the aforesaid Court of First Instance in criminal case No. 42649 entitled "The
People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", more particularly the application of
the defendant Mariano Cu Unjieng therein for probation under the provisions of Act No. 4221, and
thereafter prohibit the said Court of First Instance from taking any further action or entertaining
further the aforementioned application for probation, to the end that the defendant Mariano Cu
Unjieng may be forthwith committed to prison in accordance with the final judgment of conviction
rendered by this court in said case (G. R. No. 41200). 1

Petitioners herein, the People of the Philippine and the Hongkong and Shanghai Banking
Corporation, are respectively the plaintiff and the offended party, and the respondent herein Mariano
Cu Unjieng is one of the defendants, in the criminal case entitled "The People of the Philippine
Islands vs. Mariano Cu Unjieng, et al.", criminal case No. 42649 of the Court of First Instance of
Manila and G.R. No. 41200 of this court. Respondent herein, Hon. Jose O. Vera, is the Judge ad
interim of the seventh branch of the Court of First Instance of Manila, who heard the application of
the defendant Mariano Cu Unjieng for probation in the aforesaid criminal case.

The information in the aforesaid criminal case was filed with the Court of First Instance of Manila on
October 15, 1931, petitioner herein Hongkong and Shanghai Banking Corporation intervening in the
case as private prosecutor. After a protracted trial unparalleled in the annals of Philippine
jurisprudence both in the length of time spent by the court as well as in the volume in the testimony
and the bulk of the exhibits presented, the Court of First Instance of Manila, on January 8, 1934,
rendered a judgment of conviction sentencing the defendant Mariano Cu Unjieng to indeterminate
penalty ranging from four years and two months of prision correccional to eight years of prision
mayor, to pay the costs and with reservation of civil action to the offended party, the Hongkong and
Shanghai Banking Corporation. Upon appeal, the court, on March 26, 1935, modified the sentence
to an indeterminate penalty of from five years and six months of prision correccional to seven years,
six months and twenty-seven days of prision mayor, but affirmed the judgment in all other respects.
Mariano Cu Unjieng filed a motion for reconsideration and four successive motions for new trial
which were denied on December 17, 1935, and final judgment was accordingly entered on
December 18, 1935. The defendant thereupon sought to have the case elevated on certiorari to the
Supreme Court of the United States but the latter denied the petition
for certiorari in November, 1936. This court, on November 24, 1936, denied the
petition subsequently filed by the defendant for leave to file a second alternative motion for
reconsideration or new trial and thereafter remanded the case to the court of origin for execution of
the judgment.

The instant proceedings have to do with the application for probation filed by the herein respondent
Mariano Cu Unjieng on November 27, 1936, before the trial court, under the provisions of Act
No. 4221 of the defunct Philippine Legislature. Herein respondent Mariano Cu Unjieng states in his
petition, inter alia, that he is innocent of the crime of which he was convicted, that he has no criminal
record and that he would observe good conduct in the future. The Court of First Instance of Manila,
Judge Pedro Tuason presiding, referred the application for probation of the Insular Probation Office
which recommended denial of the same June 18, 1937. Thereafter, the Court of First Instance of
Manila, seventh branch, Judge Jose O. Vera presiding, set the petition for hearing on April 5, 1937.

On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of probation to the
herein respondent Mariano Cu Unjieng. The private prosecution also filed an opposition on April 5,
1937, alleging, among other things, that Act No. 4221, assuming that it has not been repealed by

80
section 2 of Article XV of the Constitution, is nevertheless violative of section 1, subsection (1),
Article III of the Constitution guaranteeing equal protection of the laws for the reason that its
applicability is not uniform throughout the Islands and because section 11 of the said Act endows the
provincial boards with the power to make said law effective or otherwise in their respective or
otherwise in their respective provinces. The private prosecution also filed a supplementary
opposition on April 19, 1937, elaborating on the alleged unconstitutionality on Act No. 4221, as an
undue delegation of legislative power to the provincial boards of several provinces (sec. 1, Art. VI,
Constitution). The City Fiscal concurred in the opposition of the private prosecution except with
respect to the questions raised concerning the constitutionality of Act No. 4221.

On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution with a finding
that "las pruebas no han establecido de unamanera concluyente la culpabilidad del peticionario y
que todos los hechos probados no son inconsistentes o incongrentes con su inocencia" and
concludes that the herein respondent Mariano Cu Unjieng "es inocente por duda racional" of the
crime of which he stands convicted by this court in G.R. No. 41200, but denying the latter's petition
for probation for the reason that:

. . . Si este Juzgado concediera la poblacion solicitada por las circunstancias y la historia

social que se han expuesto en el cuerpo de esta resolucion, que hacen al peticionario
acreedor de la misma, una parte de la opinion publica, atizada por los recelos y las
suspicacias, podria levantarse indignada contra un sistema de probacion que permite atisbar
en los procedimientos ordinarios de una causa criminal perturbando la quietud y la eficacia
de las decisiones ya recaidas al traer a la superficie conclusiones enteramente differentes,
en menoscabo del interes publico que demanda el respeto de las leyes y del veredicto
judicial.

On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed an exception to the
resolution denying probation and a notice of intention to file a motion for reconsideration. An
alternative motion for reconsideration or new trial was filed by counsel on July 13, 1937. This was
supplemented by an additional motion for reconsideration submitted on July 14, 1937. The aforesaid
motions were set for hearing on July 31, 1937, but said hearing was postponed at the petition of
counsel for the respondent Mariano Cu Unjieng because a motion for leave to intervene in the case
as amici curiae signed by thirty-three (thirty-four) attorneys had just been filed with the trial court.
Attorney Eulalio Chaves whose signature appears in the aforesaid motion subsequently filed a
petition for leave to withdraw his appearance as amicus curiae on the ground that the motion for
leave to intervene as amici curiae was circulated at a banquet given by counsel for Mariano Cu
Unjieng on the evening of July 30, 1937, and that he signed the same "without mature deliberation
and purely as a matter of courtesy to the person who invited me (him)."

On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial court for the issuance
of an order of execution of the judgment of this court in said case and forthwith to commit the herein
respondent Mariano Cu Unjieng to jail in obedience to said judgment.

On August 7, 1937, the private prosecution filed its opposition to the motion for leave to intervene
as amici curiae aforementioned, asking that a date be set for a hearing of the same and that, at all
events, said motion should be denied with respect to certain attorneys signing the same who were
members of the legal staff of the several counsel for Mariano Cu Unjieng. On August 10, 1937,
herein respondent Judge Jose O. Vera issued an order requiring all parties including the movants for
intervention as amici curiae to appear before the court on August 14, 1937. On the last-mentioned
date, the Fiscal of the City of Manila moved for the hearing of his motion for execution of judgment in
preference to the motion for leave to intervene as amici curiae but, upon objection of counsel for
Mariano Cu Unjieng, he moved for the postponement of the hearing of both motions. The
respondent judge thereupon set the hearing of the motion for execution on August 21, 1937, but
proceeded to consider the motion for leave to intervene as amici curiae as in order. Evidence as to
the circumstances under which said motion for leave to intervene as amici curiae was signed and
submitted to court was to have been heard on August 19, 1937. But at this juncture, herein
petitioners came to this court on extraordinary legal process to put an end to what they alleged was
an interminable proceeding in the Court of First Instance of Manila which fostered "the campaign of
the defendant Mariano Cu Unjieng for delay in the execution of the sentence imposed by this
Honorable Court on him, exposing the courts to criticism and ridicule because of the apparent
inability of the judicial machinery to make effective a final judgment of this court imposed on the
defendant Mariano Cu Unjieng."

81
The scheduled hearing before the trial court was accordingly suspended upon the issuance of a
temporary restraining order by this court on August 21, 1937.

To support their petition for the issuance of the extraordinary writs of certiorari and prohibition, herein
petitioners allege that the respondent judge has acted without jurisdiction or in excess of his
jurisdiction:

I. Because said respondent judge lacks the power to place respondent Mariano Cu Unjieng under
probation for the following reason:

(1) Under section 11 of Act No. 4221, the said of the Philippine Legislature is made
to apply only to the provinces of the Philippines; it nowhere states that it is to be
made applicable to chartered cities like the City of Manila.

(2) While section 37 of the Administrative Code contains a proviso to the effect that in
the absence of a special provision, the term "province" may be construed to include
the City of Manila for the purpose of giving effect to laws of general application, it is
also true that Act No. 4221 is not a law of general application because it is made to
apply only to those provinces in which the respective provincial boards shall have
provided for the salary of a probation officer.

(3) Even if the City of Manila were considered to be a province, still, Act No. 4221
would not be applicable to it because it has provided for the salary of a probation
officer as required by section 11 thereof; it being immaterial that there is an Insular
Probation Officer willing to act for the City of Manila, said Probation Officer provided
for in section 10 of Act No. 4221 being different and distinct from the Probation
Officer provided for in section 11 of the same Act.

II. Because even if the respondent judge originally had jurisdiction to entertain the application for
probation of the respondent Mariano Cu Unjieng, he nevertheless acted without jurisdiction or in
excess thereof in continuing to entertain the motion for reconsideration and by failing to commit
Mariano Cu Unjieng to prison after he had promulgated his resolution of June 28, 1937, denying
Mariano Cu Unjieng's application for probation, for the reason that:

(1) His jurisdiction and power in probation proceedings is limited by Act No. 4221 to
the granting or denying of applications for probation.

(2) After he had issued the order denying Mariano Cu Unjieng's petition for probation
on June 28, 1937, it became final and executory at the moment of its rendition.

(3) No right on appeal exists in such cases.

(4) The respondent judge lacks the power to grant a rehearing of said order or to
modify or change the same.

III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent of the crime
for which he was convicted by final judgment of this court, which finding is not only presumptuous
but without foundation in fact and in law, and is furthermore in contempt of this court and a violation
of the respondent's oath of office as ad interim judge of first instance.

IV. Because the respondent judge has violated and continues to violate his duty, which became
imperative when he issued his order of June 28, 1937, denying the application for probation, to
commit his co-respondent to jail.

Petitioners also avers that they have no other plain, speedy and adequate remedy in the ordinary
course of law.

In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and Shanghai
Banking Corporation further contends that Act No. 4221 of the Philippine Legislature providing for a
system of probation for persons eighteen years of age or over who are convicted of crime, is
unconstitutional because it is violative of section 1, subsection (1), Article III, of the Constitution of
the Philippines guaranteeing equal protection of the laws because it confers upon the provincial
board of its province the absolute discretion to make said law operative or otherwise in their

82
respective provinces, because it constitutes an unlawful and improper delegation to the provincial
boards of the several provinces of the legislative power lodged by the Jones Law (section 8) in the
Philippine Legislature and by the Constitution (section 1, Art. VI) in the National Assembly; and for
the further reason that it gives the provincial boards, in contravention of the Constitution (section 2,
Art. VIII) and the Jones Law (section 28), the authority to enlarge the powers of the Court of First
Instance of different provinces without uniformity. In another supplementary petition dated
September 14, 1937, the Fiscal of the City of Manila, in behalf of one of the petitioners, the People of
the Philippine Islands, concurs for the first time with the issues raised by other petitioner regarding
the constitutionality of Act No. 4221, and on the oral argument held on October 6, 1937, further
elaborated on the theory that probation is a form of reprieve and therefore Act. No. 4221 is an
encroachment on the exclusive power of the Chief Executive to grant pardons and reprieves. On
October 7, 1937, the City Fiscal filed two memorandums in which he contended that Act No. 4221
not only encroaches upon the pardoning power to the executive, but also constitute an unwarranted
delegation of legislative power and a denial of the equal protection of the laws. On October 9, 1937,
two memorandums, signed jointly by the City Fiscal and the Solicitor-General, acting in behalf of the
People of the Philippine Islands, and by counsel for the petitioner, the Hongkong and Shanghai
Banking Corporation, one sustaining the power of the state to impugn the validity of its own laws and
the other contending that Act No. 4221 constitutes an unwarranted delegation of legislative power,
were presented. Another joint memorandum was filed by the same persons on the same day,
October 9, 1937, alleging that Act No. 4221 is unconstitutional because it denies the equal protection
of the laws and constitutes an unlawful delegation of legislative power and, further, that the whole
Act is void: that the Commonwealth is not estopped from questioning the validity of its laws; that the
private prosecution may intervene in probation proceedings and may attack the probation law as
unconstitutional; and that this court may pass upon the constitutional question in prohibition
proceedings.

Respondents in their answer dated August 31, 1937, as well as in their oral argument and
memorandums, challenge each and every one of the foregoing proposition raised by the petitioners.

As special defenses, respondents allege:

(1) That the present petition does not state facts sufficient in law to warrant the
issuance of the writ of certiorari or of prohibition.

(2) That the aforesaid petition is premature because the remedy sought by the
petitioners is the very same remedy prayed for by them before the trial court and was
still pending resolution before the trial court when the present petition was filed with
this court.

(3) That the petitioners having themselves raised the question as to the execution of
judgment before the trial court, said trial court has acquired exclusive jurisdiction to
resolve the same under the theory that its resolution denying probation is
unappealable.

(4) That upon the hypothesis that this court has concurrent jurisdiction with the Court
of First Instance to decide the question as to whether or not the execution will lie, this
court nevertheless cannot exercise said jurisdiction while the Court of First Instance
has assumed jurisdiction over the same upon motion of herein petitioners
themselves.

(5) That upon the procedure followed by the herein petitioners in seeking to deprive
the trial court of its jurisdiction over the case and elevate the proceedings to this
court, should not be tolerated because it impairs the authority and dignity of the trial
court which court while sitting in the probation cases is "a court of limited jurisdiction
but of great dignity."

(6) That under the supposition that this court has jurisdiction to resolve the question
submitted to and pending resolution by the trial court, the present action would not lie
because the resolution of the trial court denying probation is appealable; for although
the Probation Law does not specifically provide that an applicant for probation may
appeal from a resolution of the Court of First Instance denying probation, still it is a
general rule in this jurisdiction that a final order, resolution or decision of an inferior
court is appealable to the superior court.

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 (7) That the resolution of the trial court denying probation of herein respondent
Mariano Cu Unjieng being appealable, the same had not become final and executory
for the reason that the said respondent had filed an alternative motion for
reconsideration and new trial within the requisite period of fifteen days, which motion
the trial court was able to resolve in view of the restraining order improvidently and
erroneously issued by this court. lawphi1.net

(8) That the Fiscal of the City of Manila had by implication admitted that the
resolution of the trial court denying probation is not final and unappealable when he
presented his answer to the motion for reconsideration and agreed to the
postponement of the hearing of the said motion.

(9) That under the supposition that the order of the trial court denying probation is not
appealable, it is incumbent upon the accused to file an action for the issuance of the
writ of certiorari with mandamus, it appearing that the trial court, although it believed
that the accused was entitled to probation, nevertheless denied probation for fear of
criticism because the accused is a rich man; and that, before a petition
for certiorari grounded on an irregular exercise of jurisdiction by the trial court could
lie, it is incumbent upon the petitioner to file a motion for reconsideration specifying
the error committed so that the trial court could have an opportunity to correct or cure
the same.

(10) That on hypothesis that the resolution of this court is not appealable, the trial
court retains its jurisdiction within a reasonable time to correct or modify it in
accordance with law and justice; that this power to alter or modify an order or
resolution is inherent in the courts and may be exercise either motu proprio or upon
petition of the proper party, the petition in the latter case taking the form of a motion
for reconsideration.

(11) That on the hypothesis that the resolution of the trial court is appealable as
respondent allege, said court cannot order execution of the same while it is on
appeal, for then the appeal would not be availing because the doors of probation will
be closed from the moment the accused commences to serve his sentence (Act No.
4221, sec. 1; U.S. vs. Cook, 19 Fed. [2d], 827).

In their memorandums filed on October 23, 1937, counsel for the respondents maintain that Act No.
4221 is constitutional because, contrary to the allegations of the petitioners, it does not constitute an
undue delegation of legislative power, does not infringe the equal protection clause of the
Constitution, and does not encroach upon the pardoning power of the Executive. In an additional
memorandum filed on the same date, counsel for the respondents reiterate the view that section 11
of Act No. 4221 is free from constitutional objections and contend, in addition, that the private
prosecution may not intervene in probation proceedings, much less question the validity of Act No.
4221; that both the City Fiscal and the Solicitor-General are estopped from questioning the validity of
the Act; that the validity of Act cannot be attacked for the first time before this court; that probation in
unavailable; and that, in any event, section 11 of the Act No. 4221 is separable from the rest of the
Act. The last memorandum for the respondent Mariano Cu Unjieng was denied for having been filed
out of time but was admitted by resolution of this court and filed anew on November 5, 1937.
This memorandum elaborates on some of the points raised by the respondents and refutes those
brought up by the petitioners.

In the scrutiny of the pleadings and examination of the various aspects of the present case, we
noted that the court below, in passing upon the merits of the application of the respondent Mariano
Cu Unjieng and in denying said application assumed the task not only of considering the merits of
the application, but of passing upon the culpability of the applicant, notwithstanding the final
pronouncement of guilt by this court. (G.R. No. 41200.) Probation implies guilt be final judgment.
While a probation case may look into the circumstances attending the commission of the offense,
this does not authorize it to reverse the findings and conclusive of this court, either directly or
indirectly, especially wherefrom its own admission reliance was merely had on the printed briefs,
averments, and pleadings of the parties. As already observed by this court in Shioji vs.
Harvey ([1922], 43 Phil., 333, 337), and reiterated in subsequent cases, "if each and every Court of
First Instance could enjoy the privilege of overruling decisions of the Supreme Court, there would be
no end to litigation, and judicial chaos would result." A becoming modesty of inferior courts demands
conscious realization of the position that they occupy in the interrelation and operation of the
intergrated judicial system of the nation.

84
After threshing carefully the multifarious issues raised by both counsel for the petitioners and the
respondents, this court prefers to cut the Gordian knot and take up at once the two fundamental
questions presented, namely, (1) whether or not the constitutionality of Act No. 4221 has been
properly raised in these proceedings; and (2) in the affirmative, whether or not said Act is
constitutional. Considerations of these issues will involve a discussion of certain incidental questions
raised by the parties.

To arrive at a correct conclusion on the first question, resort to certain guiding principles is
necessary. It is a well-settled rule that the constitutionality of an act of the legislature will not be
determined by the courts unless that question is properly raised and presented inappropriate cases
and is necessary to a determination of the case; i.e., the issue of constitutionality must be the very lis
mota presented. (McGirr vs. Hamilton and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12
C. J., pp. 780-782, 783.)

The question of the constitutionality of an act of the legislature is frequently raised in ordinary
actions. Nevertheless, resort may be made to extraordinary legal remedies, particularly where the
remedies in the ordinary course of law even if available, are not plain, speedy and adequate. Thus,
in Cu Unjieng vs. Patstone ([1922]), 42 Phil., 818), this court held that the question of the
constitutionality of a statute may be raised by the petitioner in mandamus proceedings (see, also, 12
C. J., p. 783); and in Government of the Philippine Islands vs. Springer ([1927], 50 Phil., 259
[affirmed in Springer vs. Government of the Philippine Islands (1928), 277 U. S., 189; 72 Law. ed.,
845]), this court declared an act of the legislature unconstitutional in an action of quo
warranto brought in the name of the Government of the Philippines. It has also been held that the
constitutionality of a statute may be questioned in habeas corpus proceedings (12 C. J., p. 783;
Bailey on Habeas Corpus, Vol. I, pp. 97, 117), although there are authorities to the contrary; on an
application for injunction to restrain action under the challenged statute (mandatory, see Cruz vs.
Youngberg [1931], 56 Phil., 234); and even on an application for preliminary injunction where the
determination of the constitutional question is necessary to a decision of the case. (12 C. J., p. 783.)
The same may be said as regards prohibition and certiorari.(Yu Cong Eng vs. Trinidad [1925], 47
Phil., 385; [1926], 271 U. S., 500; 70 Law. ed., 1059; Bell vs. First Judicial District Court [1905], 28
Nev., 280; 81 Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982; 1 L. R. A. [N. S], 843, and cases cited).
The case of Yu Cong Eng vs. Trinidad, supra, decided by this court twelve years ago was, like the
present one, an original action for certiorari and prohibition. The constitutionality of Act No. 2972,
popularly known as the Chinese Bookkeeping Law, was there challenged by the petitioners, and the
constitutional issue was not met squarely by the respondent in a demurrer. A point was raised
"relating to the propriety of the constitutional question being decided in original proceedings in
prohibition." This court decided to take up the constitutional question and, with two justices
dissenting, held that Act No. 2972 was constitutional. The case was elevated on writ of certiorari to
the Supreme Court of the United States which reversed the judgment of this court and held that the
Act was invalid. (271 U. S., 500; 70 Law. ed., 1059.) On the question of jurisdiction, however, the
Federal Supreme Court, though its Chief Justice, said:

By the Code of Civil Procedure of the Philippine Islands, section 516, the Philippine supreme
court is granted concurrent jurisdiction in prohibition with courts of first instance over inferior
tribunals or persons, and original jurisdiction over courts of first instance, when such courts
are exercising functions without or in excess of their jurisdiction. It has been held by that
court that the question of the validity of the criminal statute must usually be raised by a
defendant in the trial court and be carried regularly in review to the Supreme Court.
(Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192). But in this case where a
new act seriously affected numerous persons and extensive property rights, and was likely to
cause a multiplicity of actions, the Supreme Court exercised its discretion to bring the issue
to the act's validity promptly before it and decide in the interest of the orderly administration
of justice. The court relied by analogy upon the cases of Ex parte Young (209 U. S., 123;52
Law ed., 714; 13 L. R. A. [N. S.] 932; 28 Sup. Ct. Rep., 441; 14 Ann. Ca., 764; Traux vs.
Raich, 239 U. S., 33; 60 Law. ed., 131; L. R. A. 1916D, 545; 36 Sup. Ct. Rep., 7; Ann. Cas.,
1917B, 283; and Wilson vs. New, 243 U. S., 332; 61 Law. ed., 755; L. R. A. 1917E, 938; 37
Sup. Ct. Rep., 298; Ann. Cas. 1918A, 1024). Although objection to the jurisdiction was raise
by demurrer to the petition, this is now disclaimed on behalf of the respondents, and both
parties ask a decision on the merits. In view of the broad powers in prohibition granted to that
court under the Island Code, we acquiesce in the desire of the parties.

The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction
and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a
jurisdiction with which it is not legally vested. (High, Extraordinary Legal Remedies, p. 705.) The

85
general rule, although there is a conflict in the cases, is that the merit of prohibition will not lie
whether the inferior court has jurisdiction independent of the statute the constitutionality of which is
questioned, because in such cases the interior court having jurisdiction may itself determine the
constitutionality of the statute, and its decision may be subject to review, and consequently the
complainant in such cases ordinarily has adequate remedy by appeal without resort to the writ of
prohibition. But where the inferior court or tribunal derives its jurisdiction exclusively from an
unconstitutional statute, it may be prevented by the writ of prohibition from enforcing that statute. (50
C. J., 670; Ex parte Round tree [1874, 51 Ala., 42; In re Macfarland, 30 App. [D. C.], 365; Curtis vs.
Cornish [1912], 109 Me., 384; 84 A., 799; Pennington vs. Woolfolk [1880], 79 Ky., 13; State vs.
Godfrey [1903], 54 W. Va., 54; 46 S. E., 185; Arnold vs. Shields [1837], 5 Dana, 19; 30 Am. Dec.,
669.)

Courts of First Instance sitting in probation proceedings derived their jurisdiction solely from Act No.
4221 which prescribes in detailed manner the procedure for granting probation to accused persons
after their conviction has become final and before they have served their sentence. It is true that at
common law the authority of the courts to suspend temporarily the execution of the sentence is
recognized and, according to a number of state courts, including those of Massachusetts, Michigan,
New York, and Ohio, the power is inherent in the courts (Commonwealth vs. Dowdican's Bail [1874],
115 Mass., 133; People vs. Stickel [1909], 156 Mich., 557; 121 N. W., 497; People ex rel. Forsyth vs.
Court of Session [1894], 141 N. Y., 288; Weber vs. State [1898], 58 Ohio St., 616). But, in the
leading case of Ex parte United States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E,
1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the Supreme Court of the United States
expressed the opinion that under the common law the power of the court was limited to temporary
suspension, and brushed aside the contention as to inherent judicial power saying, through Chief
Justice White:

Indisputably under our constitutional system the right to try offenses against the criminal laws
and upon conviction to impose the punishment provided by law is judicial, and it is equally to
be conceded that, in exerting the powers vested in them on such subject, courts inherently
possess ample right to exercise reasonable, that is, judicial, discretion to enable them to
wisely exert their authority. But these concessions afford no ground for the contention as to
power here made, since it must rest upon the proposition that the power to enforce begets
inherently a discretion to permanently refuse to do so. And the effect of the proposition urged
upon the distribution of powers made by the Constitution will become apparent when it is
observed that indisputable also is it that the authority to define and fix the punishment for
crime is legislative and includes the right in advance to bring within judicial discretion, for the
purpose of executing the statute, elements of consideration which would be otherwise
beyond the scope of judicial authority, and that the right to relieve from the punishment, fixed
by law and ascertained according to the methods by it provided belongs to the executive
department.

Justice Carson, in his illuminating concurring opinion in the case of Director of Prisons vs. Judge of
First Instance of Cavite (29 Phil., 265), decided by this court in 1915, also reached the conclusion
that the power to suspend the execution of sentences pronounced in criminal cases is not inherent in
the judicial function. "All are agreed", he said, "that in the absence of statutory authority, it does not
lie within the power of the courts to grant such suspensions." (at p. 278.) Both petitioner and
respondents are correct, therefore, when they argue that a Court of First Instance sitting in probation
proceedings is a court of limited jurisdiction. Its jurisdiction in such proceedings is conferred
exclusively by Act No. 4221 of the Philippine Legislature.

It is, of course, true that the constitutionality of a statute will not be considered on application for
prohibition where the question has not been properly brought to the attention of the court by
objection of some kind (Hill vs. Tarver [1901], 130 Ala., 592; 30 S., 499; State ex rel. Kelly vs. Kirby
[1914], 260 Mo., 120; 168 S. W., 746). In the case at bar, it is unquestionable that the constitutional
issue has been squarely presented not only before this court by the petitioners but also before the
trial court by the private prosecution. The respondent, Hon. Jose O Vera, however, acting as judge
of the court below, declined to pass upon the question on the ground that the private prosecutor, not
being a party whose rights are affected by the statute, may not raise said question. The respondent
judge cited Cooley on Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762),
and McGlue vs. Essex County ([1916], 225 Mass., 59; 113 N. E., 742, 743), as authority for the
proposition that a court will not consider any attack made on the constitutionality of a statute by one
who has no interest in defeating it because his rights are not affected by its operation. The
respondent judge further stated that it may not motu proprio take up the constitutional question and,
agreeing with Cooley that "the power to declare a legislative enactment void is one which the judge,

86
conscious of the fallibility of the human judgment, will shrink from exercising in any case where he
can conscientiously and with due regard to duty and official oath decline the responsibility"
(Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded on the assumption that Act No. 4221 is
constitutional. While therefore, the court a quo admits that the constitutional question was raised
before it, it refused to consider the question solely because it was not raised by a proper party.
Respondents herein reiterates this view. The argument is advanced that the private prosecution has
no personality to appear in the hearing of the application for probation of defendant Mariano Cu
Unjieng in criminal case No. 42648 of the Court of First Instance of Manila, and hence the issue of
constitutionality was not properly raised in the lower court. Although, as a general rule, only those
who are parties to a suit may question the constitutionality of a statute involved in a judicial decision,
it has been held that since the decree pronounced by a court without jurisdiction is void, where the
jurisdiction of the court depends on the validity of the statute in question, the issue of the
constitutionality will be considered on its being brought to the attention of the court by persons
interested in the effect to be given the statute.(12 C. J., sec. 184, p. 766.) And, even if we were to
concede that the issue was not properly raised in the court below by the proper party, it does not
follow that the issue may not be here raised in an original action of certiorari and prohibitions. It is
true that, as a general rule, the question of constitutionality must be raised at the earliest opportunity,
so that if not raised by the pleadings, ordinarily it may not be raised at the trial, and if not raised in
the trial court, it will not considered on appeal. (12 C. J., p. 786. See, also, Cadwallader-Gibson
Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule admits
of exceptions. Courts, in the exercise of sounds discretion, may determine the time when a question
affecting the constitutionality of a statute should be presented. (In re Woolsey [1884], 95 N. Y., 135,
144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is said that the
question may be raised for the first time at any stage of the proceedings, either in the trial court or on
appeal. (12 C. J., p. 786.) Even in civil cases, it has been held that it is the duty of a court to pass on
the constitutional question, though raised for the first time on appeal, if it appears that a
determination of the question is necessary to a decision of the case. (McCabe's Adm'x vs. Maysville
& B. S. R. Co., [1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis Cordage Co. [1908],
214 Mo., 685; 113 S. W. 1108; Carmody vs. St. Louis Transit Co., [1905], 188 Mo., 572; 87 S. W.,
913.) And it has been held that a constitutional question will be considered by an appellate court at
any time, where it involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561;
57 S., 870.) As to the power of this court to consider the constitutional question raised for the first
time before this court in these proceedings, we turn again and point with emphasis to the case of Yu
Cong Eng vs. Trinidad, supra. And on the hypotheses that the Hongkong & Shanghai Banking
Corporation, represented by the private prosecution, is not the proper party to raise the constitutional
question here — a point we do not now have to decide — we are of the opinion that the People of
the Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila, is such a
proper party in the present proceedings. The unchallenged rule is that the person who impugns the
validity of a statute must have a personal and substantial interest in the case such that he has
sustained, or will sustained, direct injury as a result of its enforcement. It goes without saying that if
Act No. 4221 really violates the constitution, the People of the Philippines, in whose name the
present action is brought, has a substantial interest in having it set aside. Of grater import than the
damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the
fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that the state
can challenge the validity of its own laws. In Government of the Philippine Islands vs. Springer
([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the Philippine Islands [1928], 277
U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature unconstitutional in an action
instituted in behalf of the Government of the Philippines. In Attorney General vs. Perkins ([1889], 73
Mich., 303, 311, 312; 41 N. W. 426, 428, 429), the State of Michigan, through its Attorney General,
instituted quo warranto proceedings to test the right of the respondents to renew a mining
corporation, alleging that the statute under which the respondents base their right was
unconstitutional because it impaired the obligation of contracts. The capacity of the chief law officer
of the state to question the constitutionality of the statute was though, as a general rule, only those
who are parties to a suit may question the constitutionality of a statute involved in a judicial decision,
it has been held that since the decree pronounced by a court without jurisdiction in void, where the
jurisdiction of the court depends on the validity of the statute in question, the issue of constitutionality
will be considered on its being brought to the attention of the court by persons interested in the effect
to begin the statute. (12 C.J., sec. 184, p. 766.) And, even if we were to concede that the issue was
not properly raised in the court below by the proper party, it does not follow that the issue may not be
here raised in an original action of certiorari and prohibition. It is true that, as a general rule, the
question of constitutionality must be raised at the earliest opportunity, so that if not raised by the
pleadings, ordinarily it may not be raised a the trial, and if not raised in the trial court, it will not be
considered on appeal. (12 C.J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario,
26 Phil., 192, 193-195.) But we must state that the general rule admits of exceptions. Courts, in the
exercise of sound discretion, may determine the time when a question affecting the constitutionality

87
of a statute should be presented. (In re Woolsey [19884], 95 N.Y., 135, 144.) Thus, in criminal
cases, although there is a very sharp conflict of authorities, it is said that the question may be raised
for the first time at any state of the proceedings, either in the trial court or on appeal. (12 C.J., p.
786.) Even in civil cases, it has been held that it is the duty of a court to pass on the constitutional
question, though raised for first time on appeal, if it appears that a determination of the question is
necessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910], 136 Ky.,
674; 124 S. W., 892; Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo. 685; 113 S. W., 1108;
Carmody vs. St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a
constitutional question will be considered by an appellate court at any time, where it involves the
jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of
this court to consider the constitutional question raised for the first time before this court in these
proceedings, we turn again and point with emphasis to the case of Yu Cong Eng. vs. Trinidad,
supra. And on the hypothesis that the Hongkong & Shanghai Banking Corporation, represented by
the private prosecution, is not the proper party to raise the constitutional question here — a point we
do not now have to decide — we are of the opinion that the People of the Philippines, represented
by the Solicitor-General and the Fiscal of the City of Manila, is such a proper party in the present
proceedings. The unchallenged rule is that the person who impugns the validity of a statute must
have a personal and substantial interest in the case such that he has sustained, or will sustain, direct
injury as a result of its enforcement. It goes without saying that if Act No. 4221 really violates the
Constitution, the People of the Philippines, in whose name the present action is brought, has a
substantial interest in having it set aside. Of greater import than the damage caused by the illegal
expenditure of public funds is the mortal wound inflicted upon the fundamental law by the
enforcement of an invalid statute. Hence, the well-settled rule that the state can challenge the
validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259
(affirmed in Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed.,
845), this court declared an act of the legislature unconstitutional in an action instituted in behalf of
the Government of the Philippines. In Attorney General vs. Perkings([1889], 73 Mich., 303, 311, 312;
41 N.W., 426, 428, 429), the State of Michigan, through its Attorney General, instituted quo warranto
proceedings to test the right of the respondents to renew a mining corporation, alleging that the
statute under which the respondents base their right was unconstitutional because it impaired the
obligation of contracts. The capacity of the chief law officer of the state to question the
constitutionality of the statute was itself questioned. Said the Supreme Court of Michigan, through
Champlin, J.:

. . . The idea seems to be that the people are estopped from questioning the validity of a law
enacted by their representatives; that to an accusation by the people of Michigan of
usurpation their government, a statute enacted by the people of Michigan is an adequate
answer. The last proposition is true, but, if the statute relied on in justification is
unconstitutional, it is statute only in form, and lacks the force of law, and is of no more saving
effect to justify action under it than if it had never been enacted. The constitution is the
supreme law, and to its behests the courts, the legislature, and the people must bow . . . The
legislature and the respondents are not the only parties in interest upon such constitutional
questions. As was remarked by Mr. Justice Story, in speaking of an acquiescence by a party
affected by an unconstitutional act of the legislature: "The people have a deep and vested
interest in maintaining all the constitutional limitations upon the exercise of legislative
powers." (Allen vs. Mckeen, 1 Sum., 314.)

In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action (mandamus) was
brought by the Attorney-General of Kansas to test the constitutionality of a statute of the state. In
disposing of the question whether or not the state may bring the action, the Supreme Court of
Kansas said:

. . . the state is a proper party — indeed, the proper party — to bring this action. The state is
always interested where the integrity of its Constitution or statutes is involved.

"It has an interest in seeing that the will of the Legislature is not disregarded,
and need not, as an individual plaintiff must, show grounds of fearing more
specific injury. (State vs. Kansas City 60 Kan., 518 [57 Pac., 118])." (State vs.
Lawrence, 80 Kan., 707; 103 Pac., 839.)

Where the constitutionality of a statute is in doubt the state's law officer, its Attorney-General,
or county attorney, may exercise his bet judgment as to what sort of action he will bring to
have the matter determined, either by quo warranto to challenge its validity (State vs.
Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662), by mandamus to compel obedience

88
 to its terms (State vs. Dolley, 82 Kan., 533; 108 Pac., 846), or by injunction to restrain
proceedings under its questionable provisions (State ex rel. vs. City of Neodesha, 3 Kan.
App., 319; 45 Pac., 122).

Other courts have reached the same conclusion (See State vs. St. Louis S. W. Ry. Co. [1917], 197
S. W., 1006; State vs. S.H. Kress & Co. [1934], 155 S., 823; State vs. Walmsley [1935], 181 La.,
597; 160 S., 91; State vs. Board of County Comr's [1934], 39 Pac. [2d], 286; First Const. Co. of
Brooklyn vs. State [1917], 211 N.Y., 295; 116 N.E., 1020; Bush vs. State {1918], 187 Ind., 339; 119
N.E., 417; State vs. Watkins [1933], 176 La., 837; 147 S., 8, 10, 11). In the case last cited, the
Supreme Court of Luisiana said:

It is contended by counsel for Herbert Watkins that a district attorney, being charged with the
duty of enforcing the laws, has no right to plead that a law is unconstitutional. In support of
the argument three decisions are cited, viz.: State ex rel. Hall, District Attorney, vs. Judge of
Tenth Judicial District (33 La. Ann., 1222); State ex rel. Nicholls, Governor vs. Shakespeare,
Mayor of New Orleans (41 Ann., 156; 6 So., 592); and State ex rel., Banking Co., etc. vs.
Heard, Auditor (47 La. Ann., 1679; 18 So., 746; 47 L. R. A., 512). These decisions do not
forbid a district attorney to plead that a statute is unconstitutional if he finds if in conflict with
one which it is his duty to enforce. In State ex rel. Hall, District Attorney, vs. Judge, etc., the
ruling was the judge should not, merely because he believed a certain statute to be
unconstitutional forbid the district attorney to file a bill of information charging a person with a
violation of the statute. In other words, a judge should not judicially declare a statute
unconstitutional until the question of constitutionality is tendered for decision, and unless it
must be decided in order to determine the right of a party litigant. State ex rel. Nicholls,
Governor, etc., is authority for the proposition merely that an officer on whom a statute
imposes the duty of enforcing its provisions cannot avoid the duty upon the ground that he
considers the statute unconstitutional, and hence in enforcing the statute he is immune from
responsibility if the statute be unconstitutional. State ex rel. Banking Co., etc., is authority for
the proposition merely that executive officers, e.g., the state auditor and state treasurer,
should not decline to perform ministerial duties imposed upon them by a statute, on the
ground that they believe the statute is unconstitutional.

It is the duty of a district attorney to enforce the criminal laws of the state, and, above all, to
support the Constitution of the state. If, in the performance of his duty he finds two statutes in
conflict with each other, or one which repeals another, and if, in his judgment, one of the two
statutes is unconstitutional, it is his duty to enforce the other; and, in order to do so, he is
compelled to submit to the court, by way of a plea, that one of the statutes is
unconstitutional. If it were not so, the power of the Legislature would be free from
constitutional limitations in the enactment of criminal laws.

The respondents do not seem to doubt seriously the correctness of the general proposition that the
state may impugn the validity of its laws. They have not cited any authority running clearly in the
opposite direction. In fact, they appear to have proceeded on the assumption that the rule as stated
is sound but that it has no application in the present case, nor may it be invoked by the City Fiscal in
behalf of the People of the Philippines, one of the petitioners herein, the principal reasons being that
the validity before this court, that the City Fiscal is estopped from attacking the validity of the Act
and, not authorized challenge the validity of the Act in its application outside said city. (Additional
memorandum of respondents, October 23, 1937, pp. 8,. 10, 17 and 23.)

The mere fact that the Probation Act has been repeatedly relied upon the past and all that time has
not been attacked as unconstitutional by the Fiscal of Manila but, on the contrary, has been impliedly
regarded by him as constitutional, is no reason for considering the People of the Philippines
estopped from nor assailing its validity. For courts will pass upon a constitutional questions only
when presented before it in bona fide cases for determination, and the fact that the question has not
been raised before is not a valid reason for refusing to allow it to be raised later. The fiscal and all
others are justified in relying upon the statute and treating it as valid until it is held void by the courts
in proper cases.

It remains to consider whether the determination of the constitutionality of Act No. 4221 is necessary
to the resolution of the instant case. For, ". . . while the court will meet the question with firmness,
where its decision is indispensable, it is the part of wisdom, and just respect for the legislature,
renders it proper, to waive it, if the case in which it arises, can be decided on other points." (Ex
parte Randolph [1833], 20 F. Cas. No. 11, 558; 2 Brock., 447. Vide, also Hoover vs. wood [1857], 9
Ind., 286, 287.) It has been held that the determination of a constitutional question is necessary

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whenever it is essential to the decision of the case (12 C. J., p. 782, citing Long Sault Dev. Co. vs.
Kennedy [1913], 158 App. Div., 398; 143 N. Y. Supp., 454 [aff. 212 N.Y., 1: 105 N. E., 849; Ann.
Cas. 1915D, 56; and app dism 242 U.S., 272]; Hesse vs. Ledesma, 7 Porto Rico Fed., 520; Cowan
vs. Doddridge, 22 Gratt [63 Va.], 458; Union Line Co., vs. Wisconsin R. Commn., 146 Wis., 523; 129
N. W., 605), as where the right of a party is founded solely on a statute the validity of which is
attacked. (12 C.J., p. 782, citing Central Glass Co. vs. Niagrara F. Ins. Co., 131 La., 513; 59 S., 972;
Cheney vs. Beverly, 188 Mass., 81; 74 N.E., 306). There is no doubt that the respondent Cu Unjieng
draws his privilege to probation solely from Act No. 4221 now being assailed.

Apart from the foregoing considerations, that court will also take cognizance of the fact that the
Probation Act is a new addition to our statute books and its validity has never before been passed
upon by the courts; that may persons accused and convicted of crime in the City of Manila have
applied for probation; that some of them are already on probation; that more people will likely take
advantage of the Probation Act in the future; and that the respondent Mariano Cu Unjieng has been
at large for a period of about four years since his first conviction. All wait the decision of this court on
the constitutional question. Considering, therefore, the importance which the instant case has
assumed and to prevent multiplicity of suits, strong reasons of public policy demand that the
constitutionality of Act No. 4221 be now resolved. (Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385;
[1926], 271 U.S., 500; 70 Law. ed., 1059. See 6 R.C.L., pp. 77, 78; People vs. Kennedy [1913], 207
N.Y., 533; 101 N.E., 442, 444; Ann. Cas. 1914C, 616; Borginis vs. Falk Co. [1911], 147 Wis., 327;
133 N.W., 209, 211; 37 L.R.A. [N.S.] 489; Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil.,
304.) In Yu Cong Eng vs. Trinidad, supra, an analogous situation confronted us. We said: "Inasmuch
as the property and personal rights of nearly twelve thousand merchants are affected by these
proceedings, and inasmuch as Act No. 2972 is a new law not yet interpreted by the courts, in the
interest of the public welfare and for the advancement of public policy, we have determined to
overrule the defense of want of jurisdiction in order that we may decide the main issue. We have
here an extraordinary situation which calls for a relaxation of the general rule." Our ruling on this
point was sustained by the Supreme Court of the United States. A more binding authority in support
of the view we have taken can not be found.

We have reached the conclusion that the question of the constitutionality of Act No. 4221 has been
properly raised. Now for the main inquiry: Is the Act unconstitutional?

Under a doctrine peculiarly American, it is the office and duty of the judiciary to enforce the
Constitution. This court, by clear implication from the provisions of section 2, subsection 1, and
section 10, of Article VIII of the Constitution, may declare an act of the national legislature invalid
because in conflict with the fundamental lay. It will not shirk from its sworn duty to enforce the
Constitution. And, in clear cases, it will not hesitate to give effect to the supreme law by setting aside
a statute in conflict therewith. This is of the essence of judicial duty.

This court is not unmindful of the fundamental criteria in cases of this nature that all reasonable
doubts should be resolved in favor of the constitutionality of a statute. An act of the legislature
approved by the executive, is presumed to be within constitutional limitations. The responsibility of
upholding the Constitution rests not on the courts alone but on the legislature as well. "The question
of the validity of every statute is first determined by the legislative department of the government
itself." (U.S. vs. Ten Yu [1912], 24 Phil., 1, 10; Case vs. Board of Health and Heiser [1913], 24 Phil.,
250, 276; U.S. vs. Joson [1913], 26 Phil., 1.) And a statute finally comes before the courts sustained
by the sanction of the executive. The members of the Legislature and the Chief Executive have
taken an oath to support the Constitution and it must be presumed that they have been true to this
oath and that in enacting and sanctioning a particular law they did not intend to violate the
Constitution. The courts cannot but cautiously exercise its power to overturn the solemn declarations
of two of the three grand departments of the governments. (6 R.C.L., p. 101.) Then, there is that
peculiar political philosophy which bids the judiciary to reflect the wisdom of the people as expressed
through an elective Legislature and an elective Chief Executive. It follows, therefore, that the courts
will not set aside a law as violative of the Constitution except in a clear case. This is a proposition
too plain to require a citation of authorities.

One of the counsel for respondents, in the course of his impassioned argument, called attention to
the fact that the President of the Philippines had already expressed his opinion against the
constitutionality of the Probation Act, adverting that as to the Executive the resolution of this question
was a foregone conclusion. Counsel, however, reiterated his confidence in the integrity and
independence of this court. We take notice of the fact that the President in his message dated
September 1, 1937, recommended to the National Assembly the immediate repeal of the Probation
Act (No. 4221); that this message resulted in the approval of Bill No. 2417 of the Nationality

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Assembly repealing the probation Act, subject to certain conditions therein mentioned; but that said
bill was vetoed by the President on September 13, 1937, much against his wish, "to have stricken
out from the statute books of the Commonwealth a law . . . unfair and very likely unconstitutional." It
is sufficient to observe in this connection that, in vetoing the bill referred to, the President exercised
his constitutional prerogative. He may express the reasons which he may deem proper for taking
such a step, but his reasons are not binding upon us in the determination of actual controversies
submitted for our determination. Whether or not the Executive should express or in any manner
insinuate his opinion on a matter encompassed within his broad constitutional power of veto but
which happens to be at the same time pending determination in this court is a question of propriety
for him exclusively to decide or determine. Whatever opinion is expressed by him under these
circumstances, however, cannot sway our judgment on way or another and prevent us from taking
what in our opinion is the proper course of action to take in a given case. It if is ever necessary for us
to make any vehement affirmance during this formative period of our political history, it is that we are
independent of the Executive no less than of the Legislative department of our government —
independent in the performance of our functions, undeterred by any consideration, free from politics,
indifferent to popularity, and unafraid of criticism in the accomplishment of our sworn duty as we see
it and as we understand it.

The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That said Act
encroaches upon the pardoning power of the Executive; (2) that its constitutes an undue delegation
of legislative power and (3) that it denies the equal protection of the laws.

1. Section 21 of the Act of Congress of August 29, 1916, commonly known as the Jones Law, in
force at the time of the approval of Act No. 4221, otherwise known as the Probation Act, vests in the
Governor-General of the Philippines "the exclusive power to grant pardons and reprieves and remit
fines and forfeitures". This power is now vested in the President of the Philippines. (Art. VII, sec. 11,
subsec. 6.) The provisions of the Jones Law and the Constitution differ in some respects. The
adjective "exclusive" found in the Jones Law has been omitted from the Constitution. Under the
Jones Law, as at common law, pardon could be granted any time after the commission of the
offense, either before or after conviction (Vide Constitution of the United States, Art. II, sec. 2; In
re Lontok [1922], 43 Phil., 293). The Governor-General of the Philippines was thus empowered, like
the President of the United States, to pardon a person before the facts of the case were fully brought
to light. The framers of our Constitution thought this undesirable and, following most of the state
constitutions, provided that the pardoning power can only be exercised "after conviction". So, too,
under the new Constitution, the pardoning power does not extend to "cases of impeachment". This is
also the rule generally followed in the United States (Vide Constitution of the United States, Art. II,
sec. 2). The rule in England is different. There, a royal pardon can not be pleaded in bar of an
impeachment; "but," says Blackstone, "after the impeachment has been solemnly heard and
determined, it is not understood that the king's royal grace is further restrained or abridged." (Vide,
Ex parte Wells [1856], 18 How., 307; 15 Law. ed., 421; Com. vs. Lockwood [1872], 109 Mass., 323;
12 Am. Rep., 699; Sterling vs. Drake [1876], 29 Ohio St., 457; 23 am. Rep., 762.) The reason for the
distinction is obvious. In England, Judgment on impeachment is not confined to mere "removal from
office and disqualification to hold and enjoy any office of honor, trust, or profit under the
Government" (Art. IX, sec. 4, Constitution of the Philippines) but extends to the whole punishment
attached by law to the offense committed. The House of Lords, on a conviction may, by its sentence,
inflict capital punishment, perpetual banishment, perpetual banishment, fine or imprisonment,
depending upon the gravity of the offense committed, together with removal from office and
incapacity to hold office. (Com. vs. Lockwood, supra.) Our Constitution also makes specific mention
of "commutation" and of the power of the executive to impose, in the pardons he may grant, such
conditions, restrictions and limitations as he may deem proper. Amnesty may be granted by the
President under the Constitution but only with the concurrence of the National Assembly. We need
not dwell at length on the significance of these fundamental changes. It is sufficient for our purposes
to state that the pardoning power has remained essentially the same. The question is: Has the
pardoning power of the Chief Executive under the Jones Law been impaired by the Probation Act?

As already stated, the Jones Law vests the pardoning power exclusively in the Chief Executive. The
exercise of the power may not, therefore, be vested in anyone else.
". . . The benign prerogative of mercy reposed in the executive cannot be taken away nor fettered by
any legislative restrictions, nor can like power be given by the legislature to any other officer or
authority. The coordinate departments of government have nothing to do with the pardoning power,
since no person properly belonging to one of the departments can exercise any powers appertaining
to either of the others except in cases expressly provided for by the constitution." (20 R.C.L., pp., ,
and cases cited.) " . . . where the pardoning power is conferred on the executive without express or
implied limitations, the grant is exclusive, and the legislature can neither exercise such power itself
nor delegate it elsewhere, nor interfere with or control the proper exercise thereof, . . ." (12 C.J., pp.

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838, 839, and cases cited.) If Act No. 4221, then, confers any pardoning power upon the courts it is
for that reason unconstitutional and void. But does it?

In the famous Killitts decision involving an embezzlement case, the Supreme Court of the United
States ruled in 1916 that an order indefinitely suspending sentenced was void. (Ex parte United
States [1916], 242 U.S., 27; 61 Law. ed., 129; L.R.A. 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas.
1917B, 355.) Chief Justice White, after an exhaustive review of the authorities, expressed the
opinion of the court that under the common law the power of the court was limited to temporary
suspension and that the right to suspend sentenced absolutely and permanently was vested in the
executive branch of the government and not in the judiciary. But, the right of Congress to establish
probation by statute was conceded. Said the court through its Chief Justice: ". . . and so far as the
future is concerned, that is, the causing of the imposition of penalties as fixed to be subject, by
probation legislation or such other means as the legislative mind may devise, to such judicial
discretion as may be adequate to enable courts to meet by the exercise of an enlarged but wise
discretion the infinite variations which may be presented to them for judgment, recourse must be had
Congress whose legislative power on the subject is in the very nature of things adequately
complete." (Quoted in Riggs vs. United States [1926], 14 F. [2d], 5, 6.) This decision led the National
Probation Association and others to agitate for the enactment by Congress of a federal probation
law. Such action was finally taken on March 4, 1925 (chap. 521, 43 Stat. L. 159, U.S.C. title 18, sec.
724). This was followed by an appropriation to defray the salaries and expenses of a certain number
of probation officers chosen by civil service. (Johnson, Probation for Juveniles and Adults, p. 14.)

In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72 Law. ed., 309), the
Supreme Court of the United States, through Chief Justice Taft, held that when a person sentenced
to imprisonment by a district court has begun to serve his sentence, that court has no power under
the Probation Act of March 4, 1925 to grant him probation even though the term at which sentence
was imposed had not yet expired. In this case of Murray, the constitutionality of the probation Act
was not considered but was assumed. The court traced the history of the Act and quoted from the
report of the Committee on the Judiciary of the United States House of Representatives (Report No.
1377, 68th Congress, 2 Session) the following statement:

Prior to the so-called Killitts case, rendered in December, 1916, the district courts exercised
a form of probation either, by suspending sentence or by placing the defendants under state
probation officers or volunteers. In this case, however (Ex parte United States, 242 U.S., 27;
61 L. Ed., 129; L.R.A., 1917E, 1178; 37 Sup. Ct. Rep., 72 Ann. Cas. 1917B, 355), the
Supreme Court denied the right of the district courts to suspend sentenced. In the same
opinion the court pointed out the necessity for action by Congress if the courts were to
exercise probation powers in the future . . .

Since this decision was rendered, two attempts have been made to enact probation
legislation. In 1917, a bill was favorably reported by the Judiciary Committee and passed the
House. In 1920, the judiciary Committee again favorably reported a probation bill to the
House, but it was never reached for definite action.

If this bill is enacted into law, it will bring the policy of the Federal government with reference
to its treatment of those convicted of violations of its criminal laws in harmony with that of the
states of the Union. At the present time every state has a probation law, and in all but twelve
states the law applies both to adult and juvenile offenders. (see, also, Johnson, Probation for
Juveniles and Adults [1928], Chap. I.)

The constitutionality of the federal probation law has been sustained by inferior federal courts. In
Riggs vs. United States supra, the Circuit Court of Appeals of the Fourth Circuit said:

Since the passage of the Probation Act of March 4, 1925, the questions under consideration
have been reviewed by the Circuit Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and
the constitutionality of the act fully sustained, and the same held in no manner to encroach
upon the pardoning power of the President. This case will be found to contain an able and
comprehensive review of the law applicable here. It arose under the act we have to consider,
and to it and the authorities cited therein special reference is made (Nix vs. James, 7 F. [2d],
590, 594), as is also to a decision of the Circuit Court of Appeals of the Seventh Circuit
(Kriebel vs. U.S., 10 F. [2d], 762), likewise construing the Probation Act.

We have seen that in 1916 the Supreme Court of the United States; in plain and unequivocal
language, pointed to Congress as possessing the requisite power to enact probation laws, that a

92
federal probation law as actually enacted in 1925, and that the constitutionality of the Act has been
assumed by the Supreme Court of the United States in 1928 and consistently sustained by the
inferior federal courts in a number of earlier cases.

We are fully convinced that the Philippine Legislature, like the Congress of the United States, may
legally enact a probation law under its broad power to fix the punishment of any and all penal
offenses. This conclusion is supported by other authorities. In Ex parte Bates ([1915], 20 N. M., 542;
L.R.A. 1916A, 1285; 151 Pac., 698, the court said: "It is clearly within the province of the Legislature
to denominate and define all classes of crime, and to prescribe for each a minimum and maximum
punishment." And in State vs. Abbott ([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann.
Cas. 1912B, 1189), the court said: "The legislative power to set punishment for crime is very broad,
and in the exercise of this power the general assembly may confer on trial judges, if it sees fit, the
largest discretion as to the sentence to be imposed, as to the beginning and end of the punishment
and whether it should be certain or indeterminate or conditional." (Quoted in State vs. Teal [1918],
108 S. C., 455; 95 S. E., 69.) Indeed, the Philippine Legislature has defined all crimes and fixed the
penalties for their violation. Invariably, the legislature has demonstrated the desire to vest in the
courts — particularly the trial courts — large discretion in imposing the penalties which the law
prescribes in particular cases. It is believed that justice can best be served by vesting this power in
the courts, they being in a position to best determine the penalties which an individual convict,
peculiarly circumstanced, should suffer. Thus, while courts are not allowed to refrain from imposing a
sentence merely because, taking into consideration the degree of malice and the injury caused by
the offense, the penalty provided by law is clearly excessive, the courts being allowed in such case
to submit to the Chief Executive, through the Department of Justice, such statement as it may deem
proper (see art. 5, Revised Penal Code), in cases where both mitigating and aggravating
circumstances are attendant in the commission of a crime and the law provides for a penalty
composed of two indivisible penalties, the courts may allow such circumstances to offset one
another in consideration of their number and importance, and to apply the penalty according to the
result of such compensation. (Art. 63, rule 4, Revised Penal Code; U.S. vs. Reguera and Asuategui
[1921], 41 Phil., 506.) Again, article 64, paragraph 7, of the Revised Penal Code empowers the
courts to determine, within the limits of each periods, in case the penalty prescribed by law contains
three periods, the extent of the evil produced by the crime. In the imposition of fines, the courts are
allowed to fix any amount within the limits established by law, considering not only the mitigating and
aggravating circumstances, but more particularly the wealth or means of the culprit. (Art. 66, Revised
Penal Code.) Article 68, paragraph 1, of the same Code provides that "a discretionary penalty shall
be imposed" upon a person under fifteen but over nine years of age, who has not acted without
discernment, but always lower by two degrees at least than that prescribed by law for the crime
which he has committed. Article 69 of the same Code provides that in case of "incomplete self-
defense", i.e., when the crime committed is not wholly excusable by reason of the lack of some of
the conditions required to justify the same or to exempt from criminal liability in the several cases
mentioned in article 11 and 12 of the Code, "the courts shall impose the penalty in the period which
may be deemed proper, in view of the number and nature of the conditions of exemption present or
lacking." And, in case the commission of what are known as "impossible" crimes, "the court, having
in mind the social danger and the degree of criminality shown by the offender," shall impose upon
him either arresto mayor or a fine ranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.)

Under our Revised Penal Code, also, one-half of the period of preventive imprisonment is deducted
form the entire term of imprisonment, except in certain cases expressly mentioned (art. 29); the
death penalty is not imposed when the guilty person is more than seventy years of age, or where
upon appeal or revision of the case by the Supreme Court, all the members thereof are not
unanimous in their voting as to the propriety of the imposition of the death penalty (art. 47, see also,
sec. 133, Revised Administrative Code, as amended by Commonwealth Act No. 3); the death
sentence is not to be inflicted upon a woman within the three years next following the date of the
sentence or while she is pregnant, or upon any person over seventy years of age (art. 83); and when
a convict shall become insane or an imbecile after final sentence has been pronounced, or while he
is serving his sentenced, the execution of said sentence shall be suspended with regard to the
personal penalty during the period of such insanity or imbecility (art. 79).

But the desire of the legislature to relax what might result in the undue harshness of the penal laws
is more clearly demonstrated in various other enactments, including the probation Act. There is the
Indeterminate Sentence Law enacted in 1933 as Act No. 4103 and subsequently amended by Act
No. 4225, establishing a system of parole (secs. 5 to 100 and granting the courts large discretion in
imposing the penalties of the law. Section 1 of the law as amended provides; "hereafter, in imposing
a prison sentence for an offenses punished by the Revised Penal Code, or its amendments, the
court shall sentence the accused to an indeterminate sentence the maximum term of which shall be
that which, in view of the attending circumstances, could be properly imposed under the rules of the

93
said Code, and to a minimum which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense; and if the offense is punished by any other law, the court
shall sentence the accused to an indeterminate sentence, the maximum term of which shall not
exceed the maximum fixed by said law and the minimum shall not be less than the minimum term
prescribed by the same." Certain classes of convicts are, by section 2 of the law, excluded from the
operation thereof. The Legislature has also enacted the Juvenile Delinquency Law (Act No. 3203)
which was subsequently amended by Act No. 3559. Section 7 of the original Act and section 1 of the
amendatory Act have become article 80 of the Revised Penal Code, amended by Act No. 4117 of
the Philippine Legislature and recently reamended by Commonwealth Act No. 99 of the National
Assembly. In this Act is again manifested the intention of the legislature to "humanize" the penal
laws. It allows, in effect, the modification in particular cases of the penalties prescribed by law by
permitting the suspension of the execution of the judgment in the discretion of the trial court, after
due hearing and after investigation of the particular circumstances of the offenses, the criminal
record, if any, of the convict, and his social history. The Legislature has in reality decreed that in
certain cases no punishment at all shall be suffered by the convict as long as the conditions of
probation are faithfully observed. It this be so, then, it cannot be said that the Probation Act comes in
conflict with the power of the Chief Executive to grant pardons and reprieves, because, to use the
language of the Supreme Court of New Mexico, "the element of punishment or the penalty for the
commission of a wrong, while to be declared by the courts as a judicial function under and within the
limits of law as announced by legislative acts, concerns solely the procedure and conduct of criminal
causes, with which the executive can have nothing to do." (Ex parteBates, supra.) In Williams vs.
State ([1926], 162 Ga., 327; 133 S.E., 843), the court upheld the constitutionality of the Georgia
probation statute against the contention that it attempted to delegate to the courts the pardoning
power lodged by the constitution in the governor alone is vested with the power to pardon after final
sentence has been imposed by the courts, the power of the courts to imposed any penalty which
may be from time to time prescribed by law and in such manner as may be defined cannot be
questioned."

We realize, of course, the conflict which the American cases disclose. Some cases hold it unlawful
for the legislature to vest in the courts the power to suspend the operation of a sentenced, by
probation or otherwise, as to do so would encroach upon the pardoning power of the executive. (In
re Webb [1895], 89 Wis., 354; 27 L.R.A., 356; 46 Am. St. Rep., 846; 62 N.W., 177; 9 Am. Crim.,
Rep., 702; State ex rel. Summerfield vs. Moran [1919], 43 Nev., 150; 182 Pac., 927; Ex
parte Clendenning [1908], 22 Okla., 108; 1 Okla. Crim. Rep., 227; 19 L.R.A. [N.S.], 1041; 132 Am.
St. Rep., 628; 97 Pac., 650; People vs. Barrett [1903], 202 Ill, 287; 67 N.E., 23; 63 L.R.A., 82; 95
Am. St. Rep., 230; Snodgrass vs. State [1912], 67 Tex. Crim. Rep., 615; 41 L. R. A. [N. S.], 1144;
150 S. W., 162; Ex parte Shelor [1910], 33 Nev., 361;111 Pac., 291; Neal vs. State [1898], 104 Ga.,
509; 42 L. R. A., 190; 69 Am. St. Rep., 175; 30 S. E. 858; State ex rel. Payne vs. Anderson [1921],
43 S. D., 630; 181 N. W., 839; People vs. Brown, 54 Mich., 15; 19 N. W., 571; States vs. Dalton
[1903], 109 Tenn., 544; 72 S. W., 456.)

Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F. [2d], 590; Archer vs.
Snook [1926; D. C.], 10 F. [2d], 567; Riggs. vs. United States [1926; C. C. A. 4th], 14]) [2d], 5;
Murphy vs. States [1926], 171 Ark., 620; 286 S. W., 871; 48 A. L. R., 1189; Re Giannini [1912], 18
Cal. App., 166; 122 Pac., 831; Re Nachnaber [1928], 89 Cal. App., 530; 265 Pac., 392; Ex parte De
Voe [1931], 114 Cal. App., 730; 300 Pac., 874; People vs. Patrick [1897], 118 Cal., 332; 50 Pac.,
425; Martin vs. People [1917], 69 Colo., 60; 168 Pac., 1171; Belden vs. Hugo [1914], 88 Conn., 50;
91 A., 369, 370, 371; Williams vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs. Heise
[1913], 257 Ill., 443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R.
A., 859; St. Hillarie, Petitioner [1906], 101 Me., 522; 64 Atl., 882; People vs. Stickle [1909], 156
Mich., 557; 121 N. W., 497; State vs. Fjolander [1914], 125 Minn., 529; State ex rel. Bottomnly vs.
District Court [1925], 73 Mont., 541; 237 Pac., 525; State vs. Everitt [1913], 164 N. C., 399; 79 S. E.,
274; 47 L. R. A. [N. S.], 848; State ex rel. Buckley vs. Drew [1909], 75 N. H., 402; 74 Atl., 875; State
vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl. 424; Ex parte Bates [1915], 20 N. M., 542; L. R. A.,
1916 A. 1285; 151 Pac., 698; People vs. ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288;
23 L. R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep., 675; People ex rel. Sullivan vs. Flynn [1907], 55
Misc., 639; 106 N. Y. Supp., 928; People vs. Goodrich [1914], 149 N. Y. Supp., 406; Moore vs.
Thorn [1935], 245 App. Div., 180; 281 N. Y. Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A., 1915C,
1169; 149 N. W., 568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P., 781; State vs. Teal
[1918], 108 S. C., 455; 95 S. E., 69; State vs. Abbot [1910], 87 S. C., 466; 33 L.R.A., [N. S.], 112; 70
S. E., 6; Ann. Cas., 1912B, 1189; Fults vs. States [1854],34 Tenn., 232; Woods vs. State [1814], 130
Tenn., 100; 169 S. W., 558; Baker vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State
[1913],70 Tex., Crim. Rep., 618; 158 S. W., 998; Cook vs. State [1914], 73 Tex. Crim. Rep., 548;
165 S. W., 573; King vs. State [1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State
[1932], 122 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 211;

94
54 S. W. [2d], 127; Re Hall [1927], 100 Vt., 197; 136 A., 24; Richardson vs. Com. [1921], 131 Va.,
802; 109 S.E., 460; State vs. Mallahan [1911], 65 Wash., 287; 118 Pac., 42; State ex rel. Tingstand
vs. Starwich [1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393; 396.) We elect to follow this
long catena of authorities holding that the courts may be legally authorized by the legislature to
suspend sentence by the establishment of a system of probation however characterized. State ex
rel. Tingstand vs. Starwich ([1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved
particular mention. In that case, a statute enacted in 1921 which provided for the suspension of the
execution of a sentence until otherwise ordered by the court, and required that the convicted person
be placed under the charge of a parole or peace officer during the term of such suspension, on such
terms as the court may determine, was held constitutional and as not giving the court a power in
violation of the constitutional provision vesting the pardoning power in the chief executive of the
state. (Vide, also, Re Giannini [1912], 18 Cal App., 166; 122 Pac., 831.)

Probation and pardon are not coterminous; nor are they the same. They are actually district and
different from each other, both in origin and in nature. In People ex rel. Forsyth vs. Court of Sessions
([1894], 141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L. R. A., 856; 15 Am. Crim. Rep., 675), the Court
of Appeals of New York said:

. . . The power to suspend sentence and the power to grant reprieves and pardons, as
understood when the constitution was adopted, are totally distinct and different in their
nature. The former was always a part of the judicial power; the latter was always a part of the
executive power. The suspension of the sentence simply postpones the judgment of the
court temporarily or indefinitely, but the conviction and liability following it, and the civil
disabilities, remain and become operative when judgment is rendered. A pardon reaches
both the punishment prescribed for the offense and the guilt of the offender. It releases the
punishment, and blots out of existence the guilt, so that in the eye of the law, the offender is
as innocent as if he had never committed the offense. It removes the penalties and
disabilities, and restores him to all his civil rights. It makes him, as it were, a new man, and
gives him a new credit and capacity. (Ex parte Garland, 71 U. S., 4 Wall., 333; 18 Law. ed.,
366; U. S. vs. Klein, 80 U. S., 13 Wall., 128; 20 Law. ed., 519; Knote vs. U. S., 95 U. S., 149;
24 Law. ed., 442.)

The framers of the federal and the state constitutions were perfectly familiar with the
principles governing the power to grant pardons, and it was conferred by these instruments
upon the executive with full knowledge of the law upon the subject, and the words of the
constitution were used to express the authority formerly exercised by the English crown, or
by its representatives in the colonies. (Ex parte Wells, 59 U. S., 18 How., 307; 15 Law. ed.,
421.) As this power was understood, it did not comprehend any part of the judicial functions
to suspend sentence, and it was never intended that the authority to grant reprieves and
pardons should abrogate, or in any degree restrict, the exercise of that power in regard to its
own judgments, that criminal courts has so long maintained. The two powers, so distinct and
different in their nature and character, were still left separate and distinct, the one to be
exercised by the executive, and the other by the judicial department. We therefore conclude
that a statute which, in terms, authorizes courts of criminal jurisdiction to suspend sentence
in certain cases after conviction, — a power inherent in such courts at common law, which
was understood when the constitution was adopted to be an ordinary judicial function, and
which, ever since its adoption, has been exercised of legislative power under the
constitution. It does not encroach, in any just sense, upon the powers of the executive, as
they have been understood and practiced from the earliest times. (Quoted with approval in
Directors of Prisons vs. Judge of First Instance of Cavite [1915], 29 Phil., 265, Carson, J.,
concurring, at pp. 294, 295.)

In probation, the probationer is in no true sense, as in pardon, a free man. He is not finally and
completely exonerated. He is not exempt from the entire punishment which the law inflicts. Under
the Probation Act, the probationer's case is not terminated by the mere fact that he is placed on
probation. Section 4 of the Act provides that the probation may be definitely terminated and the
probationer finally discharged from supervision only after the period of probation shall have been
terminated and the probation officer shall have submitted a report, and the court shall have found
that the probationer has complied with the conditions of probation. The probationer, then, during the
period of probation, remains in legal custody — subject to the control of the probation officer and of
the court; and, he may be rearrested upon the non-fulfillment of the conditions of probation and,
when rearrested, may be committed to prison to serve the sentence originally imposed upon him.
(Secs. 2, 3, 5 and 6, Act No. 4221.)

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 The probation described in the act is not pardon. It is not complete liberty, and may be far
from it. It is really a new mode of punishment, to be applied by the judge in a proper case, in
substitution of the imprisonment and find prescribed by the criminal laws. For this reason its
application is as purely a judicial act as any other sentence carrying out the law deemed
applicable to the offense. The executive act of pardon, on the contrary, is against the criminal
law, which binds and directs the judges, or rather is outside of and above it. There is thus no
conflict with the pardoning power, and no possible unconstitutionality of the Probation Act for
this cause. (Archer vs. Snook [1926], 10 F. [2d], 567, 569.)

Probation should also be distinguished from reprieve and from commutation of the sentence.
Snodgrass vs. State ([1912], 67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.], 1144; 150 S. W., 162), is
relied upon most strongly by the petitioners as authority in support of their contention that the power
to grant pardons and reprieves, having been vested exclusively upon the Chief Executive by the
Jones Law, may not be conferred by the legislature upon the courts by means of probation law
authorizing the indefinite judicial suspension of sentence. We have examined that case and found
that although the Court of Criminal Appeals of Texas held that the probation statute of the state in
terms conferred on the district courts the power to grant pardons to persons convicted of crime, it
also distinguished between suspensions sentence on the one hand, and reprieve and commutation
of sentence on the other. Said the court, through Harper, J.:

That the power to suspend the sentence does not conflict with the power of the Governor to
grant reprieves is settled by the decisions of the various courts; it being held that the
distinction between a "reprieve" and a suspension of sentence is that a reprieve postpones
the execution of the sentence to a day certain, whereas a suspension is for an indefinite
time. (Carnal vs. People, 1 Parker, Cr. R., 262; In re Buchanan, 146 N. Y., 264; 40 N. E.,
883), and cases cited in 7 Words & Phrases, pp. 6115, 6116. This law cannot be hold in
conflict with the power confiding in the Governor to grant commutations of punishment, for a
commutations is not but to change the punishment assessed to a less punishment.

In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac., 525), the Supreme
Court of Montana had under consideration the validity of the adult probation law of the state enacted
in 1913, now found in sections 12078-12086, Revised Codes of 1921. The court held the law valid
as not impinging upon the pardoning power of the executive. In a unanimous decision penned by
Justice Holloway, the court said:

. . . . the term "pardon", "commutation", and "respite" each had a well understood meaning at
the time our Constitution was adopted, and no one of them was intended to comprehend the
suspension of the execution of the judgment as that phrase is employed in sections 12078-
12086. A "pardon" is an act of grace, proceeding from the power intrusted with the execution
of the laws which exempts the individual on whom it is bestowed from the punishment the
law inflicts for a crime he has committed (United States vs. Wilson, 7 Pet., 150; 8 Law. ed.,
640); It is a remission of guilt (State vs. Lewis, 111 La., 693; 35 So., 816), a forgiveness of
the offense (Cook vs. Middlesex County, 26 N. J. Law, 326; Ex parte Powell, 73 Ala., 517; 49
Am. Rep., 71). "Commutation" is a remission of a part of the punishment; a substitution of a
less penalty for the one originally imposed (Lee vs. Murphy, 22 Grat. [Va.] 789; 12 Am. Rep.,
563; Rich vs. Chamberlain, 107 Mich., 381; 65 N. W., 235). A "reprieve" or "respite" is the
withholding of the sentence for an interval of time (4 Blackstone's Commentaries, 394), a
postponement of execution (Carnal vs. People, 1 Parker, Cr. R. [N. Y.], 272), a temporary
suspension of execution (Butler vs. State, 97 Ind., 373).

Few adjudicated cases are to be found in which the validity of a statute similar to our section
12078 has been determined; but the same objections have been urged against parole
statutes which vest the power to parole in persons other than those to whom the power of
pardon is granted, and these statutes have been upheld quite uniformly, as a reference to
the numerous cases cited in the notes to Woods vs. State (130 Tenn., 100; 169 S. W.,558,
reported in L. R. A., 1915F, 531), will disclose. (See, also, 20 R. C. L., 524.)

We conclude that the Probation Act does not conflict with the pardoning power of the Executive. The
pardoning power, in respect to those serving their probationary sentences, remains as full and
complete as if the Probation Law had never been enacted. The President may yet pardon the
probationer and thus place it beyond the power of the court to order his rearrest and imprisonment.
(Riggs vs. United States [1926],
14 F. [2d], 5, 7.)

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2. But while the Probation Law does not encroach upon the pardoning power of the executive and is
not for that reason void, does section 11 thereof constitute, as contended, an undue delegation of
legislative power?

Under the constitutional system, the powers of government are distributed among three coordinate
and substantially independent organs: the legislative, the executive and the judicial. Each of these
departments of the government derives its authority from the Constitution which, in turn, is the
highest expression of popular will. Each has exclusive cognizance of the matters within its
jurisdiction, and is supreme within its own sphere.

The power to make laws — the legislative power — is vested in a bicameral Legislature by the
Jones Law (sec. 12) and in a unicamiral National Assembly by the Constitution (Act. VI, sec. 1,
Constitution of the Philippines). The Philippine Legislature or the National Assembly may not escape
its duties and responsibilities by delegating that power to any other body or authority. Any attempt to
abdicate the power is unconstitutional and void, on the principle that potestas delegata non delegare
potest. This principle is said to have originated with the glossators, was introduced into English law
through a misreading of Bracton, there developed as a principle of agency, was established by Lord
Coke in the English public law in decisions forbidding the delegation of judicial power, and found its
way into America as an enlightened principle of free government. It has since become an accepted
corollary of the principle of separation of powers. (5 Encyc. of the Social Sciences, p. 66.) The
classic statement of the rule is that of Locke, namely: "The legislative neither must nor can transfer
the power of making laws to anybody else, or place it anywhere but where the people have." (Locke
on Civil Government, sec. 142.) Judge Cooley enunciates the doctrine in the following oft-quoted
language: "One of the settled maxims in constitutional law is, that the power conferred upon the
legislature to make laws cannot be delegated by that department to any other body or authority.
Where the sovereign power of the state has located the authority, there it must remain; and by the
constitutional agency alone the laws must be made until the Constitution itself is charged. The power
to whose judgment, wisdom, and patriotism this high prerogative has been intrusted cannot relieve
itself of the responsibilities by choosing other agencies upon which the power shall be devolved, nor
can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the
people have seen fit to confide this sovereign trust." (Cooley on Constitutional Limitations, 8th ed.,
Vol. I, p. 224. Quoted with approval in U. S. vs. Barrias [1908], 11 Phil., 327.) This court posits the
doctrine "on the ethical principle that such a delegated power constitutes not only a right but a duty
to be performed by the delegate by the instrumentality of his own judgment acting immediately upon
the matter of legislation and not through the intervening mind of another. (U. S. vs. Barrias, supra, at
p. 330.)

The rule, however, which forbids the delegation of legislative power is not absolute and inflexible. It
admits of exceptions. An exceptions sanctioned by immemorial practice permits the central
legislative body to delegate legislative powers to local authorities. (Rubi vs. Provincial Board of
Mindoro [1919], 39 Phil., 660; U. S. vs. Salaveria [1918], 39 Phil., 102; Stoutenburgh vs. Hennick
[1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256; State vs. Noyes [1855], 30 N. H.,
279.) "It is a cardinal principle of our system of government, that local affairs shall be managed by
local authorities, and general affairs by the central authorities; and hence while the rule is also
fundamental that the power to make laws cannot be delegated, the creation of the municipalities
exercising local self government has never been held to trench upon that rule. Such legislation is not
regarded as a transfer of general legislative power, but rather as the grant of the authority to
prescribed local regulations, according to immemorial practice, subject of course to the interposition
of the superior in cases of necessity." (Stoutenburgh vs. Hennick, supra.) On quite the same
principle, Congress is powered to delegate legislative power to such agencies in the territories of the
United States as it may select. A territory stands in the same relation to Congress as a municipality
or city to the state government. (United States vs. Heinszen [1907], 206 U. S., 370; 27 Sup. Ct.
Rep., 742; 51 L. ed., 1098; 11 Ann. Cas., 688; Dorr vs. United States [1904], 195 U.S., 138; 24 Sup.
Ct. Rep., 808; 49 Law. ed., 128; 1 Ann. Cas., 697.) Courts have also sustained the delegation of
legislative power to the people at large. Some authorities maintain that this may not be done (12 C.
J., pp. 841, 842; 6 R. C. L., p. 164, citing People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442;
Ann. Cas., 1914C, 616). However, the question of whether or not a state has ceased to be
republican in form because of its adoption of the initiative and referendum has been held not to be a
judicial but a political question (Pacific States Tel. & Tel. Co. vs. Oregon [1912], 223 U. S., 118; 56
Law. ed., 377; 32 Sup. Cet. Rep., 224), and as the constitutionality of such laws has been looked
upon with favor by certain progressive courts, the sting of the decisions of the more conservative
courts has been pretty well drawn. (Opinions of the Justices [1894], 160 Mass., 586; 36 N. E., 488;
23 L. R. A., 113; Kiernan vs. Portland [1910], 57 Ore., 454; 111 Pac., 379; 1132 Pac., 402; 37 L. R.
A. [N. S.], 332; Pacific States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also, legislative power
may be delegated by the Constitution itself. Section 14, paragraph 2, of article VI of the Constitution

97
of the Philippines provides that "The National Assembly may by law authorize the President, subject
to such limitations and restrictions as it may impose, to fix within specified limits, tariff rates, import or
export quotas, and tonnage and wharfage dues." And section 16 of the same article of the
Constitution provides that "In times of war or other national emergency, the National Assembly may
by law authorize the President, for a limited period and subject to such restrictions as it may
prescribed, to promulgate rules and regulations to carry out a declared national policy." It is beyond
the scope of this decision to determine whether or not, in the absence of the foregoing constitutional
provisions, the President could be authorized to exercise the powers thereby vested in him. Upon
the other hand, whatever doubt may have existed has been removed by the Constitution itself.

The case before us does not fall under any of the exceptions hereinabove mentioned.

The challenged section of Act No. 4221 in section 11 which reads as follows:

This Act shall apply only in those provinces in which the respective provincial boards have
provided for the salary of a probation officer at rates not lower than those now provided for
provincial fiscals. Said probation officer shall be appointed by the Secretary of Justice and
shall be subject to the direction of the Probation Office. (Emphasis ours.)

In testing whether a statute constitute an undue delegation of legislative power or not, it is usual to
inquire whether the statute was complete in all its terms and provisions when it left the hands of the
legislature so that nothing was left to the judgment of any other appointee or delegate of the
legislature. (6 R. C. L., p. 165.) In the United States vs. Ang Tang Ho ([1922], 43 Phil., 1), this court
adhered to the foregoing rule when it held an act of the legislature void in so far as it undertook to
authorize the Governor-General, in his discretion, to issue a proclamation fixing the price of rice and
to make the sale of it in violation of the proclamation a crime. (See and cf. Compañia General de
Tabacos vs. Board of Public Utility Commissioners [1916], 34 Phil., 136.) The general rule, however,
is limited by another rule that to a certain extent matters of detail may be left to be filled in by rules
and regulations to be adopted or promulgated by executive officers and administrative boards. (6 R.
C. L., pp. 177-179.)

For the purpose of Probation Act, the provincial boards may be regarded as administrative bodies
endowed with power to determine when the Act should take effect in their respective provinces.
They are the agents or delegates of the legislature in this respect. The rules governing delegation of
legislative power to administrative and executive officers are applicable or are at least indicative of
the rule which should be here adopted. An examination of a variety of cases on delegation of power
to administrative bodies will show that the ratio decidendi is at variance but, it can be broadly
asserted that the rationale revolves around the presence or absence of a standard or rule of action
— or the sufficiency thereof — in the statute, to aid the delegate in exercising the granted discretion.
In some cases, it is held that the standard is sufficient; in others that is insufficient; and in still others
that it is entirely lacking. As a rule, an act of the legislature is incomplete and hence invalid if it does
not lay down any rule or definite standard by which the administrative officer or board may be guided
in the exercise of the discretionary powers delegated to it. (See Schecter vs. United States [1925],
295 U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837; 97 A.L.R., 947; People ex rel. Rice vs. Wilson
Oil Co. [1936], 364 Ill., 406; 4 N. E. [2d], 847; 107 A.L.R., 1500 and cases cited. See also R. C. L.,
title "Constitutional Law", sec 174.) In the case at bar, what rules are to guide the provincial boards
in the exercise of their discretionary power to determine whether or not the Probation Act shall apply
in their respective provinces? What standards are fixed by the Act? We do not find any and none
has been pointed to us by the respondents. The probation Act does not, by the force of any of its
provisions, fix and impose upon the provincial boards any standard or guide in the exercise of their
discretionary power. What is granted, if we may use the language of Justice Cardozo in the recent
case of Schecter, supra, is a "roving commission" which enables the provincial boards to exercise
arbitrary discretion. By section 11 if the Act, the legislature does not seemingly on its own authority
extend the benefits of the Probation Act to the provinces but in reality leaves the entire matter for the
various provincial boards to determine. In other words, the provincial boards of the various provinces
are to determine for themselves, whether the Probation Law shall apply to their provinces or not at
all. The applicability and application of the Probation Act are entirely placed in the hands of the
provincial boards. If the provincial board does not wish to have the Act applied in its province, all that
it has to do is to decline to appropriate the needed amount for the salary of a probation officer. The
plain language of the Act is not susceptible of any other interpretation. This, to our minds, is a virtual
surrender of legislative power to the provincial boards.

"The true distinction", says Judge Ranney, "is between the delegation of power to make the law,
which necessarily involves a discretion as to what it shall be, and conferring an authority or

98
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." (Cincinnati, W. & Z. R. Co. vs. Clinton County
Comrs. [1852]; 1 Ohio St., 77, 88. See also, Sutherland on Statutory Construction, sec 68.) To the
same effect are the decision of this court in Municipality of Cardona vs. Municipality of
Binangonan ([1917], 36 Phil., 547); Rubi vs. Provincial Board of Mindoro ([1919],39 Phil., 660)
and Cruz vs. Youngberg ([1931], 56 Phil., 234). In the first of these cases, this court sustained the
validity of the law conferring upon the Governor-General authority to adjust provincial and municipal
boundaries. In the second case, this court held it lawful for the legislature to direct non-Christian
inhabitants to take up their habitation on unoccupied lands to be selected by the provincial governor
and approved by the provincial board. In the third case, it was held proper for the legislature to vest
in the Governor-General authority to suspend or not, at his discretion, the prohibition of the
importation of the foreign cattle, such prohibition to be raised "if the conditions of the country make
this advisable or if deceased among foreign cattle has ceased to be a menace to the agriculture and
livestock of the lands."

It should be observed that in the case at bar we are not concerned with the simple transference of
details of execution or the promulgation by executive or administrative officials of rules and
regulations to carry into effect the provisions of a law. If we were, recurrence to our own decisions
would be sufficient. (U. S. vs. Barrias [1908], 11 Phil., 327; U.S. vs. Molina [1914], 29 Phil., 119;
Alegre vs. Collector of Customs [1929], 53 Phil., 394; Cebu Autobus Co. vs. De Jesus [1931], 56
Phil., 446; U. S. vs. Gomez [1915], 31 Phil., 218; Rubi vs. Provincial Board of Mindoro [1919], 39
Phil., 660.)

It is connected, however, that a legislative act may be made to the effect as law after it leaves the
hands of the legislature. It is true that laws may be made effective on certain contingencies, as by
proclamation of the executive or the adoption by the people of a particular community (6 R. C. L.,
116, 170-172; Cooley, Constitutional Limitations, 8th ed., Vol. I, p. 227). In Wayman vs. Southard
([1825], 10 Wheat. 1; 6 Law. ed., 253), the Supreme Court of the United State ruled that the
legislature may delegate a power not legislative which it may itself rightfully exercise.(Vide, also,
Dowling vs. Lancashire Ins. Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to
ascertain facts is such a power which may be delegated. There is nothing essentially legislative in
ascertaining the existence of facts or conditions as the basis of the taking into effect of a law. That is
a mental process common to all branches of the government. (Dowling vs. Lancashire Ins.
Co., supra; In re Village of North Milwaukee [1896], 93 Wis., 616; 97 N.W., 1033; 33 L.R.A., 938;
Nash vs. Fries [1906], 129 Wis., 120; 108 N.W., 210; Field vs. Clark [1892], 143 U.S., 649; 12 Sup.
Ct., 495; 36 Law. ed., 294.) Notwithstanding the apparent tendency, however, to relax the rule
prohibiting delegation of legislative authority on account of the complexity arising from social and
economic forces at work in this modern industrial age (Pfiffner, Public Administration [1936] ch. XX;
Laski, "The Mother of Parliaments", foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579; Beard,
"Squirt-Gun Politics", in Harper's Monthly Magazine, July, 1930, Vol. CLXI, pp. 147, 152), the
orthodox pronouncement of Judge Cooley in his work on Constitutional Limitations finds restatement
in Prof. Willoughby's treatise on the Constitution of the United States in the following language —
speaking of declaration of legislative power to administrative agencies: "The principle which permits
the legislature to provide that the administrative agent may determine when the circumstances are
such as require the application of a law is defended upon the ground that at the time this authority is
granted, the rule of public policy, which is the essence of the legislative act, is determined by the
legislature. In other words, the legislature, as it its duty to do, determines that, under given
circumstances, certain executive or administrative action is to be taken, and that, under other
circumstances, different of no action at all is to be taken. What is thus left to the administrative
official is not the legislative determination of what public policy demands, but simply the
ascertainment of what the facts of the case require to be done according to the terms of the law by
which he is governed." (Willoughby on the Constitution of the United States, 2nd ed., Vol. II, p.
1637.) In Miller vs. Mayer, etc., of New York [1883], 109 U.S., 3 Sup. Ct. Rep., 228; 27 Law. ed.,
971, 974), it was said: "The efficiency of an Act as a declaration of legislative will must, of course,
come from Congress, but the ascertainment of the contingency upon which the Act shall take effect
may be left to such agencies as it may designate." (See, also, 12 C.J., p. 864; State vs. Parker
[1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343, 258.) The legislature, then may provide
that a contingencies leaving to some other person or body the power to determine when the
specified contingencies has arisen. But, in the case at bar, the legislature has not made the
operation of the Prohibition Act contingent upon specified facts or conditions to be ascertained by
the provincial board. It leaves, as we have already said, the entire operation or non-operation of the
law upon the provincial board. the discretion vested is arbitrary because it is absolute and unlimited.
A provincial board need not investigate conditions or find any fact, or await the happening of any
specified contingency. It is bound by no rule, — limited by no principle of expendiency announced by
the legislature. It may take into consideration certain facts or conditions; and, again, it may not. It

99
may have any purpose or no purpose at all. It need not give any reason whatsoever for refusing or
failing to appropriate any funds for the salary of a probation officer. This is a matter which rest
entirely at its pleasure. The fact that at some future time — we cannot say when — the provincial
boards may appropriate funds for the salaries of probation officers and thus put the law into
operation in the various provinces will not save the statute. The time of its taking into effect, we
reiterate, would yet be based solely upon the will of the provincial boards and not upon the
happening of a certain specified contingency, or upon the ascertainment of certain facts or
conditions by a person or body other than legislature itself.

The various provincial boards are, in practical effect, endowed with the power of suspending the
operation of the Probation Law in their respective provinces. In some jurisdiction, constitutions
provided that laws may be suspended only by the legislature or by its authority. Thus, section 28,
article I of the Constitution of Texas provides that "No power of suspending laws in this state shall be
exercised except by the legislature"; and section 26, article I of the Constitution of Indiana provides
"That the operation of the laws shall never be suspended, except by authority of the General
Assembly." Yet, even provisions of this sort do not confer absolute power of suspension upon the
legislature. While it may be undoubted that the legislature may suspend a law, or the execution or
operation of a law, a law may not be suspended as to certain individuals only, leaving the law to be
enjoyed by others. The suspension must be general, and cannot be made for individual cases or for
particular localities. In Holden vs. James ([1814], 11 Mass., 396; 6 Am. Dec., 174, 177, 178), it was
said:

By the twentieth article of the declaration of rights in the constitution of this commonwealth, it
is declared that the power of suspending the laws, or the execution of the laws, ought never
to be exercised but by the legislature, or by authority derived from it, to be exercised in such
particular cases only as the legislature shall expressly provide for. Many of the articles in that
declaration of rights were adopted from the Magna Charta of England, and from the bill of
rights passed in the reign of William and Mary. The bill of rights contains an enumeration of
the oppressive acts of James II, tending to subvert and extirpate the protestant religion, and
the laws and liberties of the kingdom; and the first of them is the assuming and exercising a
power of dispensing with and suspending the laws, and the execution of the laws without
consent of parliament. The first article in the claim or declaration of rights contained in the
statute is, that the exercise of such power, by legal authority without consent of parliament, is
illegal. In the tenth section of the same statute it is further declared and enacted, that "No
dispensation by non obstante of or to any statute, or part thereof, should be allowed; but the
same should be held void and of no effect, except a dispensation be allowed of in such
statute." There is an implied reservation of authority in the parliament to exercise the power
here mentioned; because, according to the theory of the English Constitution, "that absolute
despotic power, which must in all governments reside somewhere," is intrusted to the
parliament: 1 Bl. Com., 160.

The principles of our government are widely different in this particular. Here the sovereign
and absolute power resides in the people; and the legislature can only exercise what is
delegated to them according to the constitution. It is obvious that the exercise of the power in
question would be equally oppressive to the subject, and subversive of his right to protection,
"according to standing laws," whether exercised by one man or by a number of men. It
cannot be supposed that the people when adopting this general principle from the English bill
of rights and inserting it in our constitution, intended to bestow by implication on the general
court one of the most odious and oppressive prerogatives of the ancient kings of England. It
is manifestly contrary to the first principles of civil liberty and natural justice, and to the spirit
of our constitution and laws, that any one citizen should enjoy privileges and advantages
which are denied to all others under like circumstances; or that ant one should be subject to
losses, damages, suits, or actions from which all others under like circumstances are
exempted.

To illustrate the principle: A section of a statute relative to dogs made the owner of any dog liable to
the owner of domestic animals wounded by it for the damages without proving a knowledge of it
vicious disposition. By a provision of the act, power was given to the board of supervisors to
determine whether or not during the current year their county should be governed by the provisions
of the act of which that section constituted a part. It was held that the legislature could not confer that
power. The court observed that it could no more confer such a power than to authorize the board of
supervisors of a county to abolish in such county the days of grace on commercial paper, or to
suspend the statute of limitations. (Slinger vs. Henneman [1875], 38 Wis., 504.) A similar statute in
Missouri was held void for the same reason in State vs. Field ([1853, 17 Mo., 529;59 Am. Dec., 275.)

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In that case a general statute formulating a road system contained a provision that "if the county
court of any county should be of opinion that the provisions of the act should not be enforced, they
might, in their discretion, suspend the operation of the same for any specified length of time, and
thereupon the act should become inoperative in such county for the period specified in such order;
and thereupon order the roads to be opened and kept in good repair, under the laws theretofore in
force." Said the court: ". . . this act, by its own provisions, repeals the inconsistent provisions of a
former act, and yet it is left to the county court to say which act shall be enforce in their county. The
act does not submit the question to the county court as an original question, to be decided by that
tribunal, whether the act shall commence its operation within the county; but it became by its own
terms a law in every county not excepted by name in the act. It did not, then, require the county court
to do any act in order to give it effect. But being the law in the county, and having by its provisions
superseded and abrogated the inconsistent provisions of previous laws, the county court is . . .
empowered, to suspend this act and revive the repealed provisions of the former act. When the
question is before the county court for that tribunal to determine which law shall be in force, it is urge
before us that the power then to be exercised by the court is strictly legislative power, which under
our constitution, cannot be delegated to that tribunal or to any other body of men in the state. In the
present case, the question is not presented in the abstract; for the county court of Saline county,
after the act had been for several months in force in that county, did by order suspend its operation;
and during that suspension the offense was committed which is the subject of the present indictment
. . . ." (See Mitchell vs. State [1901], 134 Ala., 392; 32 S., 687.)

True, the legislature may enact laws for a particular locality different from those applicable to other
localities and, while recognizing the force of the principle hereinabove expressed, courts in may
jurisdiction have sustained the constitutionality of the submission of option laws to the vote of the
people. (6 R.C.L., p. 171.) But option laws thus sustained treat of subjects purely local in character
which should receive different treatment in different localities placed under different circumstances.
"They relate to subjects which, like the retailing of intoxicating drinks, or the running at large of cattle
in the highways, may be differently regarded in different localities, and they are sustained on what
seems to us the impregnable ground, that the subject, though not embraced within the ordinary
powers of municipalities to make by-laws and ordinances, is nevertheless within the class of public
regulations, in respect to which it is proper that the local judgment should control." (Cooley on
Constitutional Limitations, 5th ed., p. 148.) So that, while we do not deny the right of local self-
government and the propriety of leaving matters of purely local concern in the hands of local
authorities or for the people of small communities to pass upon, we believe that in matters of general
of general legislation like that which treats of criminals in general, and as regards the general subject
of probation, discretion may not be vested in a manner so unqualified and absolute as provided in
Act No. 4221. True, the statute does not expressly state that the provincial boards may suspend the
operation of the Probation Act in particular provinces but, considering that, in being vested with the
authority to appropriate or not the necessary funds for the salaries of probation officers, they thereby
are given absolute discretion to determine whether or not the law should take effect or operate in
their respective provinces, the provincial boards are in reality empowered by the legislature to
suspend the operation of the Probation Act in particular provinces, the Act to be held in abeyance
until the provincial boards should decide otherwise by appropriating the necessary funds. The
validity of a law is not tested by what has been done but by what may be done under its provisions.
(Walter E. Olsen & Co. vs. Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.)

It in conceded that a great deal of latitude should be granted to the legislature not only in the
expression of what may be termed legislative policy but in the elaboration and execution thereof.
"Without this power, legislation would become oppressive and yet imbecile." (People vs. Reynolds, 5
Gilman, 1.) It has been said that popular government lives because of the inexhaustible reservoir of
power behind it. It is unquestionable that the mass of powers of government is vested in the
representatives of the people and that these representatives are no further restrained under our
system than by the express language of the instrument imposing the restraint, or by particular
provisions which by clear intendment, have that effect. (Angara vs. Electoral Commission [1936], 35
Off. Ga., 23; Schneckenburger vs. Moran [1936], 35 Off. Gaz., 1317.) But, it should be borne in mind
that a constitution is both a grant and a limitation of power and one of these time-honored limitations
is that, subject to certain exceptions, legislative power shall not be delegated.

We conclude that section 11 of Act No. 4221 constitutes an improper and unlawful delegation of
legislative authority to the provincial boards and is, for this reason, unconstitutional and void.

3. It is also contended that the Probation Act violates the provisions of our Bill of Rights which
prohibits the denial to any person of the equal protection of the laws (Act. III, sec. 1 subsec. 1.
Constitution of the Philippines.)

101
This basic individual right sheltered by the Constitution is a restraint on all the tree grand
departments of our government and on the subordinate instrumentalities and subdivision thereof,
and on many constitutional power, like the police power, taxation and eminent domain. The equal
protection of laws, sententiously observes the Supreme Court of the United States, "is a pledge of
the protection of equal laws." (Yick Wo vs. Hopkins [1886], 118 U. S., 356; 30 Law. ed., 220; 6 Sup.
Ct. Rep., 10464; Perley vs. North Carolina, 249 U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.)
Of course, what may be regarded as a denial of the equal protection of the laws in a question not
always easily determined. No rule that will cover every case can be formulated. (Connolly vs. Union
Sewer Pipe Co. [1902], 184, U. S., 540; 22 Sup. Ct., Rep., 431; 46 Law. ed., 679.) Class legislation
discriminating against some and favoring others in prohibited. But classification on a reasonable
basis, and nor made arbitrarily or capriciously, is permitted. (Finely vs. California [1911], 222 U. S.,
28; 56 Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C. & S. F. Ry Co. vs. Ellis [1897], 165 U. S., 150; 41
Law. ed., 666; 17 Sup. Ct. Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) The
classification, however, to be reasonable must be based on substantial distinctions which make real
differences; it must be germane to the purposes of the law; it must not be limited to existing
conditions only, and must apply equally to each member of the class. (Borgnis vs. Falk. Co. [1911],
147 Wis., 327, 353; 133 N. W., 209; 3 N. C. C. A., 649; 37 L. R. A. [N. S.], 489; State vs. Cooley, 56
Minn., 540; 530-552; 58 N. W., 150; Lindsley vs. Natural Carbonic Gas Co.[1911], 220 U. S., 61, 79,
55 Law. ed., 369, 377; 31 Sup. Ct. Rep., 337; Ann. Cas., 1912C, 160; Lake Shore & M. S. R. Co. vs.
Clough [1917], 242 U.S., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed., 374; Southern Ry. Co. vs. Greene
[1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287; 54 Law. ed., 536; 17 Ann. Cas., 1247; Truax vs.
Corrigan [1921], 257 U. S., 312; 12 C. J., pp. 1148, 1149.)

In the case at bar, however, the resultant inequality may be said to flow from the unwarranted
delegation of legislative power, although perhaps this is not necessarily the result in every case.
Adopting the example given by one of the counsel for the petitioners in the course of his oral
argument, one province may appropriate the necessary fund to defray the salary of a probation
officer, while another province may refuse or fail to do so. In such a case, the Probation Act would
be in operation in the former province but not in the latter. This means that a person otherwise
coming within the purview of the law would be liable to enjoy the benefits of probation in one
province while another person similarly situated in another province would be denied those same
benefits. This is obnoxious discrimination. Contrariwise, it is also possible for all the provincial
boards to appropriate the necessary funds for the salaries of the probation officers in their respective
provinces, in which case no inequality would result for the obvious reason that probation would be in
operation in each and every province by the affirmative action of appropriation by all the provincial
boards. On that hypothesis, every person coming within the purview of the Probation Act would be
entitled to avail of the benefits of the Act. Neither will there be any resulting inequality if no province,
through its provincial board, should appropriate any amount for the salary of the probation officer —
which is the situation now — and, also, if we accept the contention that, for the purpose of the
Probation Act, the City of Manila should be considered as a province and that the municipal board of
said city has not made any appropriation for the salary of the probation officer. These different
situations suggested show, indeed, that while inequality may result in the application of the law and
in the conferment of the benefits therein provided, inequality is not in all cases the necessary result.
But whatever may be the case, it is clear that in section 11 of the Probation Act creates a situation in
which discrimination and inequality are permitted or allowed. There are, to be sure, abundant
authorities requiring actual denial of the equal protection of the law before court should assume the
task of setting aside a law vulnerable on that score, but premises and circumstances considered, we
are of the opinion that section 11 of Act No. 4221 permits of the denial of the equal protection of the
law and is on that account bad. We see no difference between a law which permits of such denial. A
law may appear to be fair on its face and impartial in appearance, yet, if it permits of unjust and
illegal discrimination, it is within the constitutional prohibitions. (By analogy, Chy Lung vs. Freeman
[1876], 292 U. S., 275; 23 Law. ed., 550; Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law. ed.,
543; Ex parte Virginia [1880], 100 U. S., 339; 25 Law. ed., 676; Neal vs. Delaware [1881], 103 U. S.,
370; 26 Law. ed., 567; Soon Hing vs. Crowley [1885], 113 U. S., 703; 28 Law. ed., 1145, Yick Wo
vs. Hopkins [1886],118 U. S., 356; 30 Law. ed., 220; Williams vs. Mississippi [1897], 170 U. S., 218;
18 Sup. Ct. Rep., 583; 42 Law. ed., 1012; Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct.
Rep. 145; 55 Law. ed., Sunday Lake Iron Co. vs. Wakefield [1918], 247 U. S., 450; 38 Sup. Ct. Rep.,
495; 62 Law. ed., 1154.) In other words, statutes may be adjudged unconstitutional because of their
effect in operation (General Oil Co. vs. Clain [1907], 209 U. S., 211; 28 Sup. Ct. Rep., 475; 52 Law.
ed., 754; State vs. Clement Nat. Bank [1911], 84 Vt., 167; 78 Atl., 944; Ann. Cas., 1912D, 22). If the
law has the effect of denying the equal protection of the law it is unconstitutional. (6 R. C. L. p. 372;
Civil Rights Cases, 109 U. S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs. Hopkins, supra;
State vs. Montgomery, 94 Me., 192; 47 Atl., 165; 80 A. S. R., 386; State vs. Dering, 84 Wis., 585; 54
N. W., 1104; 36 A. S. R., 948; 19 L. R. A., 858.) Under section 11 of the Probation Act, not only may
said Act be in force in one or several provinces and not be in force in other provinces, but one

102
province may appropriate for the salary of the probation officer of a given year — and have probation
during that year — and thereafter decline to make further appropriation, and have no probation is
subsequent years. While this situation goes rather to the abuse of discretion which delegation
implies, it is here indicated to show that the Probation Act sanctions a situation which is intolerable in
a government of laws, and to prove how easy it is, under the Act, to make the guaranty of the
equality clause but "a rope of sand". (Brewer, J. Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S.,
150 154; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255.) lawph!1.net

Great reliance is placed by counsel for the respondents on the case of Ocampo vs. United States
([1914], 234 U. S., 91; 58 Law. ed., 1231). In that case, the Supreme Court of the United States
affirmed the decision of this court (18 Phil., 1) by declining to uphold the contention that there was a
denial of the equal protection of the laws because, as held in Missouri vs. Lewis (Bowman vs. Lewis)
decided in 1880 (101 U. S., 220; 25 Law. ed., 991), the guaranty of the equality clause does not
require territorial uniformity. It should be observed, however, that this case concerns the right to
preliminary investigations in criminal cases originally granted by General Orders No. 58. No question
of legislative authority was involved and the alleged denial of the equal protection of the laws was
the result of the subsequent enactment of Act No. 612, amending the charter of the City of Manila
(Act No. 813) and providing in section 2 thereof that "in cases triable only in the court of first instance
of the City of Manila, the defendant . . . shall not be entitled as of right to a preliminary examination
in any case where the prosecuting attorney, after a due investigation of the facts . . . shall have
presented an information against him in proper form . . . ." Upon the other hand, an analysis of the
arguments and the decision indicates that the investigation by the prosecuting attorney — although
not in the form had in the provinces — was considered a reasonable substitute for the City of Manila,
considering the peculiar conditions of the city as found and taken into account by the legislature
itself.

Reliance is also placed on the case of Missouri vs. Lewis, supra. That case has reference to a
situation where the constitution of Missouri permits appeals to the Supreme Court of the state from
final judgments of any circuit court, except those in certain counties for which counties the
constitution establishes a separate court of appeals called St. Louis Court of Appeals. The provision
complained of, then, is found in the constitution itself and it is the constitution that makes the
apportionment of territorial jurisdiction.

We are of the opinion that section 11 of the Probation Act is unconstitutional and void because it is
also repugnant to equal-protection clause of our Constitution.

Section 11 of the Probation Act being unconstitutional and void for the reasons already stated, the
next inquiry is whether or not the entire Act should be avoided.

In seeking the legislative intent, the presumption is against any mutilation of a statute, and
the courts will resort to elimination only where an unconstitutional provision is interjected into
a statute otherwise valid, and is so independent and separable that its removal will leave the
constitutional features and purposes of the act substantially unaffected by the process.
(Riccio vs. Hoboken, 69 N. J. Law., 649, 662; 63 L. R. A., 485; 55 Atl., 1109, quoted in
Williams vs. Standard Oil Co. [1929], 278 U.S., 235, 240; 73 Law. ed., 287, 309; 49 Sup. Ct.
Rep., 115; 60 A. L. R., 596.) In Barrameda vs. Moir ([1913], 25 Phil., 44, 47), this court stated
the well-established rule concerning partial invalidity of statutes in the following language:

. . . where part of the a statute is void, as repugnant to the Organic Law, while another part is
valid, the valid portion, if separable from the valid, may stand and be enforced. But in order
to do this, the valid portion must be in so far independent of the invalid portion that it is fair to
presume that the Legislative would have enacted it by itself if they had supposed that they
could not constitutionally enact the other. (Mutual Loan Co. vs. Martell, 200 Mass., 482; 86
N. E., 916; 128 A. S. R., 446; Supervisors of Holmes Co. vs. Black Creek Drainage District,
99 Miss., 739; 55 Sou., 963.) Enough must remain to make a complete, intelligible, and valid
statute, which carries out the legislative intent. (Pearson vs. Bass. 132 Ga., 117; 63 S. E.,
798.) The void provisions must be eliminated without causing results affecting the main
purpose of the Act, in a manner contrary to the intention of the Legislature. (State vs. A. C. L.
R., Co., 56 Fla., 617, 642; 47 Sou., 969; Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226; 26
L. R. A., N. S., 794; Connolly vs. Union Sewer Pipe Co., 184 U. S., 540, 565; People vs.
Strassheim, 240 Ill., 279, 300; 88 N. E., 821; 22 L. R. A., N. S., 1135; State vs. Cognevich,
124 La., 414; 50 Sou., 439.) The language used in the invalid part of a statute can have no
legal force or efficacy for any purpose whatever, and what remains must express the
legislative will, independently of the void part, since the court has no power to legislate.

103
 (State vs. Junkin, 85 Neb., 1; 122 N. W., 473; 23 L. R. A., N. S., 839; Vide, also,. U. S., vs.
Rodriguez [1918], 38 Phil., 759; Pollock vs. Farmers' Loan and Trust Co. [1895], 158 U. S.,
601, 635; 39 Law. ed., 1108, 1125; 15 Sup. Ct. Rep., 912; 6 R.C.L., 121.)

It is contended that even if section 11, which makes the Probation Act applicable only in those
provinces in which the respective provincial boards provided for the salaries of probation officers
were inoperative on constitutional grounds, the remainder of the Act would still be valid and may be
enforced. We should be inclined to accept the suggestions but for the fact that said section is, in our
opinion, is inseparably linked with the other portions of the Act that with the elimination of the section
what would be left is the bare idealism of the system, devoid of any practical benefit to a large
number of people who may be deserving of the intended beneficial result of that system. The clear
policy of the law, as may be gleaned from a careful examination of the whole context, is to make the
application of the system dependent entirely upon the affirmative action of the different provincial
boards through appropriation of the salaries for probation officers at rates not lower than those
provided for provincial fiscals. Without such action on the part of the various boards, no probation
officers would be appointed by the Secretary of Justice to act in the provinces. The Philippines is
divided or subdivided into provinces and it needs no argument to show that if not one of the
provinces — and this is the actual situation now — appropriate the necessary fund for the salary of a
probation officer, probation under Act No. 4221 would be illusory. There can be no probation without
a probation officer. Neither can there be a probation officer without the probation system.

Section 2 of the Acts provides that the probation officer shall supervise and visit the probationer.
Every probation officer is given, as to the person placed in probation under his care, the powers of
the police officer. It is the duty of the probation officer to see that the conditions which are imposed
by the court upon the probationer under his care are complied with. Among those conditions, the
following are enumerated in section 3 of the Act:

That the probationer (a) shall indulge in no injurious or vicious habits;

(b) Shall avoid places or persons of disreputable or harmful character;

(c) Shall report to the probation officer as directed by the court or probation officers;

(d) Shall permit the probation officer to visit him at reasonable times at his place of abode or
elsewhere;

(e) Shall truthfully answer any reasonable inquiries on the part of the probation officer
concerning his conduct or condition; "(f) Shall endeavor to be employed regularly; "(g) Shall
remain or reside within a specified place or locality;

(f) Shall make reparation or restitution to the aggrieved parties for actual damages or losses
caused by his offense;

(g) Shall comply with such orders as the court may from time to time make; and

(h) Shall refrain from violating any law, statute, ordinance, or any by-law or regulation,
promulgated in accordance with law.

The court is required to notify the probation officer in writing of the period and terms of probation.
Under section 4, it is only after the period of probation, the submission of a report of the probation
officer and appropriate finding of the court that the probationer has complied with the conditions of
probation that probation may be definitely terminated and the probationer finally discharged from
supervision. Under section 5, if the court finds that there is non-compliance with said conditions, as
reported by the probation officer, it may issue a warrant for the arrest of the probationer and said
probationer may be committed with or without bail. Upon arraignment and after an opportunity to be
heard, the court may revoke, continue or modify the probation, and if revoked, the court shall order
the execution of the sentence originally imposed. Section 6 prescribes the duties of probation
officers: "It shall be the duty of every probation officer to furnish to all persons placed on probation
under his supervision a statement of the period and conditions of their probation, and to instruct
them concerning the same; to keep informed concerning their conduct and condition; to aid and
encourage them by friendly advice and admonition, and by such other measures, not inconsistent
with the conditions imposed by court as may seem most suitable, to bring about improvement in their
conduct and condition; to report in writing to the court having jurisdiction over said probationers at

104
least once every two months concerning their conduct and condition; to keep records of their work;
make such report as are necessary for the information of the Secretary of Justice and as the latter
may require; and to perform such other duties as are consistent with the functions of the probation
officer and as the court or judge may direct. The probation officers provided for in this Act may act as
parole officers for any penal or reformatory institution for adults when so requested by the authorities
thereof, and, when designated by the Secretary of Justice shall act as parole officer of persons
released on parole under Act Number Forty-one Hundred and Three, without additional
compensation."

It is argued, however, that even without section 11 probation officers maybe appointed in the
provinces under section 10 of Act which provides as follows:

There is hereby created in the Department of Justice and subject to its supervision and
control, a Probation Office under the direction of a Chief Probation Officer to be appointed by
the Governor-General with the advise and consent of the Senate who shall receive a salary
of four eight hundred pesos per annum. To carry out this Act there is hereby appropriated out
of any funds in the Insular Treasury not otherwise appropriated, the sum of fifty thousand
pesos to be disbursed by the Secretary of Justice, who is hereby authorized to appoint
probation officers and the administrative personnel of the probation officer under civil service
regulations from among those who possess the qualifications, training and experience
prescribed by the Bureau of Civil Service, and shall fix the compensation of such probation
officers and administrative personnel until such positions shall have been included in the
Appropriation Act.

But the probation officers and the administrative personnel referred to in the foregoing section are
clearly not those probation officers required to be appointed for the provinces under section 11. It
may be said, reddendo singula singulis, that the probation officers referred to in section 10 above-
quoted are to act as such, not in the various provinces, but in the central office known as the
Probation Office established in the Department of Justice, under the supervision of the Chief
Probation Officer. When the law provides that "the probation officer" shall investigate and make
reports to the court (secs. 1 and 4); that "the probation officer" shall supervise and visit the
probationer (sec. 2; sec. 6, par. d); that the probationer shall report to the "probationer officer" (sec.
3, par. c.), shall allow "the probationer officer" to visit him (sec. 3, par. d), shall truthfully answer any
reasonable inquiries on the part of "the probation officer" concerning his conduct or condition (sec. 3,
par. 4); that the court shall notify "the probation officer" in writing of the period and terms of probation
(sec. 3, last par.), it means the probation officer who is in charge of a particular probationer in a
particular province. It never could have been intention of the legislature, for instance, to require the
probationer in Batanes, to report to a probationer officer in the City of Manila, or to require a
probation officer in Manila to visit the probationer in the said province of Batanes, to place him under
his care, to supervise his conduct, to instruct him concerning the conditions of his probation or to
perform such other functions as are assigned to him by law.

That under section 10 the Secretary of Justice may appoint as many probation officers as there are
provinces or groups of provinces is, of course possible. But this would be arguing on what the law
may be or should be and not on what the law is. Between is and ought there is a far cry. The wisdom
and propriety of legislation is not for us to pass upon. We may think a law better otherwise than it is.
But much as has been said regarding progressive interpretation and judicial legislation we decline to
amend the law. We are not permitted to read into the law matters and provisions which are not there.
Not for any purpose — not even to save a statute from the doom of invalidity.

Upon the other hand, the clear intention and policy of the law is not to make the Insular Government
defray the salaries of probation officers in the provinces but to make the provinces defray them
should they desire to have the Probation Act apply thereto. The sum of P50,000, appropriated "to
carry out the purposes of this Act", is to be applied, among other things, for the salaries of probation
officers in the central office at Manila. These probation officers are to receive such compensations
as the Secretary of Justice may fix "until such positions shall have been included in the Appropriation
Act". It was the intention of the legislature to empower the Secretary of Justice to fix the salaries of
the probation officers in the provinces or later on to include said salaries in an appropriation act.
Considering, further, that the sum of P50,000 appropriated in section 10 is to cover, among other
things, the salaries of the administrative personnel of the Probation Office, what would be left of the
amount can hardly be said to be sufficient to pay even nominal salaries to probation officers in the
provinces. We take judicial notice of the fact that there are 48 provinces in the Philippines and we do
not think it is seriously contended that, with the fifty thousand pesos appropriated for the central
office, there can be in each province, as intended, a probation officer with a salary not lower than

105
that of a provincial fiscal. If this a correct, the contention that without section 11 of Act No. 4221 said
act is complete is an impracticable thing under the remainder of the Act, unless it is conceded that in
our case there can be a system of probation in the provinces without probation officers.

Probation as a development of a modern penology is a commendable system. Probation laws have

been enacted, here and in other countries, to permit what modern criminologist call the
"individualization of the punishment", the adjustment of the penalty to the character of the criminal
and the circumstances of his particular case. It provides a period of grace in order to aid in the
rehabilitation of a penitent offender. It is believed that, in any cases, convicts may be reformed and
their development into hardened criminals aborted. It, therefore, takes advantage of an opportunity
for reformation and avoids imprisonment so long as the convicts gives promise of reform. (United
States vs. Murray [1925], 275 U. S., 347 357, 358; 72 Law. ed., 309; 312, 313; 48 Sup. Ct. Rep.,
146; Kaplan vs. Hecht, 24 F. [2d], 664, 665.) The Welfare of society is its chief end and aim. The
benefit to the individual convict is merely incidental. But while we believe that probation is
commendable as a system and its implantation into the Philippines should be welcomed, we are
forced by our inescapable duty to set the law aside because of the repugnancy to our fundamental
law.

In arriving at this conclusion, we have endeavored to consider the different aspects presented by
able counsel for both parties, as well in their memorandums as in their oral argument. We have
examined the cases brought to our attention, and others we have been able to reach in the short
time at our command for the study and deliberation of this case. In the examination of the cases and
in then analysis of the legal principles involved we have inclined to adopt the line of action which in
our opinion, is supported better reasoned authorities and is more conducive to the general welfare.
(Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the conflict of authorities, we have
declined to be bound by certain adjudicated cases brought to our attention, except where the point
or principle is settled directly or by clear implication by the more authoritative pronouncements of the
Supreme Court of the United States. This line of approach is justified because:

(a) The constitutional relations between the Federal and the State governments of the United
States and the dual character of the American Government is a situation which does not
obtain in the Philippines;

(b) The situation of s state of the American Union of the District of Columbia with reference to
the Federal Government of the United States is not the situation of the province with respect
to the Insular Government (Art. I, sec. 8 cl. 17 and 10th Amendment, Constitution of the
United States; Sims vs. Rives, 84 Fed. [2d], 871),

(c) The distinct federal and the state judicial organizations of the United States do not
embrace the integrated judicial system of the Philippines (Schneckenburger vs. Moran
[1936], 35 Off. Gaz., p. 1317);

(d) "General propositions do not decide concrete cases" (Justice Holmes in Lochner vs. New
York [1904], 198 U. S., 45, 76; 49 Law. ed., 937, 949) and, "to keep pace with . . . new
developments of times and circumstances" (Chief Justice Waite in Pensacola Tel. Co. vs.
Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale Law Journal, Vol. XXIX,
No. 2, Dec. 1919, 141, 142), fundamental principles should be interpreted having in view
existing local conditions and environment.

Act No. 4221 is hereby declared unconstitutional and void and the writ of prohibition is, accordingly,
granted. Without any pronouncement regarding costs. So ordered.

Avanceña, C.J., Imperial, Diaz and Concepcion, JJ., concur.

Villa-real and Abad Santos, JJ., concur in the result.

Facts:
Mariano Cu Unjieng was convicted by the trial court in Manila. He filed for reconsideration and four motions
for new trial but all were denied. He then elevated to the Supreme Court and the Supreme Court remanded the
appeal to the lower court for a new trial. While awaiting new trial, he appealed for probation alleging that the
he is innocent of the crime he was convicted of. The Judge of the Manila CFI directed the appeal to the Insular
Probation Office. The IPO denied the application. However, Judge Vera upon another request by petitioner
allowed the petition to be set for hearing. The City Prosecutor countered alleging that Vera has no power to
place Cu Unjieng under probation because it is in violation of Sec. 11 Act No. 4221 which provides that the act

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of Legislature granting provincial boards the power to provide a system of probation to convicted person.
Nowhere in the law is stated that the law is applicable to a city like Manila because it is only indicated therein
that only provinces are covered. And even if Manila is covered by the law it is unconstitutional because Sec 1
Art 3 of the Constitution provides equal protection of laws. The said law provides absolute discretion to
provincial boards and this also constitutes undue delegation of power. Further, the said probation law may be
an encroachment of the power of the executive to provide pardon because providing probation, in effect, is
granting freedom, as in pardon.

Issues:

1. Whether or not Act No. 4221 constituted an undue delegation of legislative power
2. Whether or not the said act denies the equal protection of the laws

Discussions:

1. An act of the legislature is incomplete and hence invalid if it does not lay down any rule or definite
standard by which the administrative officer or board may be guided in the exercise of the discretionary
powers delegated to it. The probation Act does not, by the force of any of its provisions, fix and impose
upon the provincial boards any standard or guide in the exercise of their discretionary power. What is
granted, as mentioned by Justice Cardozo in the recent case of Schecter, supra, is a “roving commission”
which enables the provincial boards to exercise arbitrary discretion. By section 11 if the Act, the
legislature does not seemingly on its own authority extend the benefits of the Probation Act to the
provinces but in reality leaves the entire matter for the various provincial boards to determine.
2. The equal protection of laws is a pledge of the protection of equal laws. The classification of equal
protection, to be reasonable, must be based on substantial distinctions which make real differences; it must
be germane to the purposes of the law; it must not be limited to existing conditions only, and must apply
equally to each member of the class.

Rulings:

1. The Court concludes that section 11 of Act No. 4221 constitutes an improper and unlawful delegation of
legislative authority to the provincial boards and is, for this reason, unconstitutional and void. There is no
set standard provided by Congress on how provincial boards must act in carrying out a system of
probation. The provincial boards are given absolute discretion which is violative of the constitution and
the doctrine of the non delegation of power. Further, it is a violation of equity so protected by the
constitution. The challenged section of Act No. 4221 in section 11 which reads as follows: This Act shall
apply only in those provinces in which the respective provincial boards have provided for the salary of a
probation officer at rates not lower than those now provided for provincial fiscals. Said probation officer
shall be appointed by the Secretary of Justice and shall be subject to the direction of the Probation Office.

The provincial boards of the various provinces are to determine for themselves, whether the Probation Law
shall apply to their provinces or not at all. The applicability and application of the Probation Act are entirely
placed in the hands of the provincial boards. If the provincial board does not wish to have the Act applied in its
province, all that it has to do is to decline to appropriate the needed amount for the salary of a probation
officer.

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2. It is also contended that the Probation Act violates the provisions of our Bill of Rights which prohibits the
denial to any person of the equal protection of the laws. The resultant inequality may be said to flow from
the unwarranted delegation of legislative power, although perhaps this is not necessarily the result in every
case. Adopting the example given by one of the counsel for the petitioners in the course of his oral
argument, one province may appropriate the necessary fund to defray the salary of a probation officer,
while another province may refuse or fail to do so. In such a case, the Probation Act would be in operation
in the former province but not in the latter. This means that a person otherwise coming within the purview
of the law would be liable to enjoy the benefits of probation in one province while another person
similarly situated in another province would be denied those same benefits. This is obnoxious
discrimination. Contrariwise, it is also possible for all the provincial boards to appropriate the necessary
funds for the salaries of the probation officers in their respective provinces, in which case no inequality
would result for the obvious reason that probation would be in operation in each and every province by the
affirmative action of appropriation by all the provincial boards.

FACTS:

Petitioners, People of the Philippines and Hongkong and Shanghai Banking

Corporation (HSBC) are respectively the plaintiff and the offended party, and
Mariano Cu Unjieng is one of the defendants, in the criminal case. Hon. Jose
O. Vera, is the Judge ad interim of the seventh branch of the Court of First
Instance of Manila, who heard the application of Cu Unjieng for probation.
HSBC intervened in the case as private prosecutor. After a protracted trial,
the Court of First Instance rendered a judgment of conviction sentencing Cu
Unjieng to indeterminate penalty ranging from 4 years and 2 months of
prision correccional to 8 years of prision mayor, to pay the costs and with
reservation of civil action to the offended party, HSBC.

Upon appeal, the court, on 26 March 1935, modified the sentence to an

indeterminate penalty of from 5 years and 6 months of prision correccional to
7 years, 6 months and 27 days of prision mayor, but affirmed the judgment in
all other respects. Cu Unjieng filed a motion for reconsideration and four
successive motions for new trial which were denied on 17 December 1935,
and final judgment was accordingly entered on 18 December 1935. Cu
Unjieng thereupon sought to have the case elevated on certiorari to the
Supreme Court of the United States but the latter denied the petition for
certiorari in November, 1936. The Supreme Court, on 24 November 1936,
denied the petition subsequently filed by Cu Unjieng for leave to file a
second alternative motion for reconsideration or new trial and thereafter
remanded the case to the court of origin for execution of the judgment.

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ISSUE:

Whether or not the People of the Philippines is a proper party in this case.

HELD:

YES. The People of the Philippines, represented by the Solicitor General and
the Fiscal of the City of Manila, is a proper party in the present proceedings.
The unchallenged rule is that the person who impugns the validity of a statute
must have a personal and substantial interest in the case such that he has
sustained, or will sustained, direct injury as a result of its enforcement. It
goes without saying that if Act No. 4221 really violates the constitution, the
People of the Philippines, in whose name the present action is brought, has a
substantial interest in having it set aside. Of greater import than the damage
caused by the illegal expenditure of public funds is the mortal wound
inflicted upon the fundamental law by the enforcement of an invalid statute.
Hence, the well-settled rule that the state can challenge the validity of its own
laws.

65 Phil. 56 – Political Law – Constitutional Law – Bill of Rights – Equal Protection –

Probation Law
Separation of Powers – Undue Delegation of Powers – Power to Pardon
Constitutionality of Laws – May the State Question Its Own Laws
In 1934, Mariano Cu Unjieng was convicted in a criminal case filed against him by the
Hongkong and Shanghai Banking Corporation (HSBC). In 1936, he filed for probation. The
matter was referred to the Insular Probation Office which recommended the denial of Cu
Unjieng’s petition for probation. A hearing was set by Judge Jose Vera concerning the
petition for probation. The Prosecution opposed the petition. Eventually, due to delays in the
hearing, the Prosecution filed a petition for certiorari with the Supreme Court alleging that
courts like the Court of First Instance of Manila (which is presided over by Judge Vera) have
no jurisdiction to place accused like Cu Unjieng under probation because under the law (Act
No. 4221 or The Probation Law), probation is only meant to be applied in provinces with
probation officers; that the City of Manila is not a province, and that Manila, even if
construed as a province, has no designated probation officer – hence, a Manila court
cannot grant probation.
Meanwhile, HSBC also filed its own comment on the matter alleging that Act 4221 is
unconstitutional for it violates the constitutional guarantee on equal protection of the laws.
HSBC averred that the said law makes it the prerogative of provinces whether or nor to
apply the probation law – if a province chooses to apply the probation law, then it will
appoint a probation officer, but if it will not, then no probation officer will be appointed –
hence, that makes it violative of the equal protection clause.
Further, HSBC averred that the Probation Law is an undue delegation of power because it
gave the option to the provincial board to whether or not to apply the probation law –
however, the legislature did not provide guidelines to be followed by the provincial board.

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Further still, HSBC averred that the Probation Law is an encroachment of the executive’s
power to grant pardon. They say that the legislature, by providing for a probation law, had in
effect encroached upon the executive’s power to grant pardon. (Ironically, the Prosecution
agreed with the issues raised by HSBC – ironic because their main stance was the non-
applicability of the probation law only in Manila while recognizing its application in
provinces).
For his part, one of the issues raised by Cu Unjieng is that, the Prosecution, representing
the State as well as the People of the Philippines, cannot question the validity of a law, like
Act 4221, which the State itself created. Further, Cu Unjieng also castigated the fiscal of
Manila who himself had used the Probation Law in the past without question but is now
questioning the validity of the said law (estoppel).
ISSUE:
1. May the State question its own laws?
2. Is Act 4221 constitutional?
HELD:
1. Yes. There is no law which prohibits the State, or its duly authorized representative, from
questioning the validity of a law. Estoppel will also not lie against the State even if it had
been using an invalid law.
2. No, Act 4221 or the [old] Probation Law is unconstitutional.
Violation of the Equal Protection Clause
The contention of HSBC and the Prosecution is well taken on this note. There is violation of
the equal protection clause. Under Act 4221, provinces were given the option to apply the
law by simply providing for a probation officer. So if a province decides not to install a
probation officer, then the accused within said province will be unduly deprived of the
provisions of the Probation Law.
Undue Delegation of Legislative Power
There is undue delegation of legislative power. Act 4221 provides that it shall only apply to
provinces where the respective provincial boards have provided for a probation officer. But
nowhere in the law did it state as to what standard (sufficient standard test) should
provincial boards follow in determining whether or not to apply the probation law in their
province. This only creates a roving commission which will act arbitrarily according to its
whims.
Encroachment of Executive Power
Though Act 4221 is unconstitutional, the Supreme Court recognized the power of Congress
to provide for probation. Probation does not encroach upon the President’s power to grant
pardon. Probation is not pardon. Probation is within the power of Congress to fix penalties
while pardon is a power of the president to commute penalties.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 17122 February 27, 1922

THE UNITED STATES, plaintiff-appellee,

vs.
ANG TANG HO, defendant-appellant.

Williams & Ferrier for appellant.

Acting Attorney-General Tuason for appellee.

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JOHNS, J.:

At its special session of 1919, the Philippine Legislature passed Act No. 2868, entitled "An Act
penalizing the monopoly and holding 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 State, 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 State, 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 any 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 or define any basic 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 thousands 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 for which such proclamation was issued, the Governor-
General, with the consent of the Council of State, 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, Ang Tang Ho, charging him with the
sale of rice at an excessive price as follows:

The undersigned accuses Ang 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 of 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 Ang Tang Ho, voluntarily, illegally and criminally sold to Pedro Trinidad, one ganta 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.

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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 the 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 promulgate 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 to specify or define under what conditions or for what 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 not in any manner specified or defined any basis for the order, but has left it to
the sole judgement 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 is a temporary
rule or an emergency measure for the carrying out the purposes 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 powers 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 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. 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 Legislature 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 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 void.

The Supreme Court of the United States in what is known as the Granger Cases (94 U.S., 183-187;
24 L. ed., 94), first laid down the rule:

Railroad companies are engaged in a public employment affecting the public interest and,
under the decision in Munn vs. Ill., ante, 77, are subject to legislative control as to their rates
of fare and freight unless protected by their charters.

112
 The Illinois statute of Mar. 23, 1874, to establish 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
ry. 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 and 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 raised 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 judgement, 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 legislative 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 freights 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 is shall be. The commission is intrusted with no authority or discretion upon
these questions. It can neither make nor unmake 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
Dowling vs. Lancoshire 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."

113
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 maters 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 confirmity 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
judgement of the electors or other appointee or delegate of the legislature, so that, in form and
substance, it is a law in all its details in presenti, but which may be left to take effect in futuro, 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. Grimaud
(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 object of such reservations; 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 a forest reservation for stock grazing, except upon stated terms or
in stated ways, the Secretary of Agriculture merely assert and enforces the proprietary right
of the United States over land which it owns. The regulation 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 person 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 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 could be punished by fine or 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 of 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 subjects as to which the Secretary can regulate are defined. The lands are set apart as a forest
reserve. He is required to make provisions to protect them from depredations and from harmful uses.
He is authorized 'to regulate the occupancy and use and 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 "Granger 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

114
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 decisions hold that the legislative only can enact a law, and that it cannot delegate it
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.

The Village of Little Chute enacted an ordinance which provides:

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 operations upon the ascertainment of a fact or state of facts by an
administrative officer or board. In the present case the ordinance by its terms gives power to
the president to decide arbitrary, 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 be 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 "ganta," 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 to a crime.

The Executive order2 provides:

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 (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 57½ kilos, or 29 centavos per ganta.

Rice at P15 per sack of 57½ kilos, or 63 centavos per ganta.

Corn at P8 per sack of 57½ kilos, or 34 centavos per ganta.

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 treasurers 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 the 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 Philippine 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 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 issuance of the
proclamation by the Governor-General was the exercise of the delegation of a delegated power, and
was even a sub delegation 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 to 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 mater 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 the grade and quality. Act No. 2868 makes no distinction in price for the grade or 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 57½ kilos, or 63 centavos per ganta," 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 single out palay,
rice or corn from the numerous other products of the Islands is not general or uniform, 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 product 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 inform. 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

116
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 ganta of rice
at the price of eighty centavos (P0.80) which is a price greater than that 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 authorized 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 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 an 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
broad statement that no state or nation, living under 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 actual 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 this 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 on 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 states, to fix the price at which a
price 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 the particular portion
of Act No. 2868 here in question. By the terms of the Organic Act, subject only to constitutional
limitations, the power to legislate and enact laws is vested exclusively in the Legislative, which is
elected by a direct vote of the people of the Philippine Islands. 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 power in violation of the organic law.

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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 portions of the Act unconstitutional. It does not decide
or undertake to construe the constitutionality of any of the remaining portions of the Act.

The judgment of the lower court is reversed, and the defendant discharged. So ordered.

Araullo, C.J., Johnson, Street and Ostrand, JJ., concur.

Romualdez, J., concurs in the result.

Separate Opinions

MALCOLM, J., concurring:

I concur in the result for reasons which reach both the facts and the law. In the first place, as to the
facts, — one cannot be convicted ex post facto of a violation of a law and of an executive order
issued pursuant to the law, when the alleged violation thereof occurred on August 6, 1919, while the
Act of the Legislature in question was not published until August 13, 1919, and the order was not
published until August 20, 1919. In the second place, as to the law, — one cannot be convicted of a
violation of a law or of an order issued pursuant to the law when both the law and the order fail to set
up an ascertainable standard of guilt. (U.S. vs. Cohen Grocery Company [1921], 255 U.S., 81,
holding section 4 of the Federal Food Control Act of August 10, 1917, as amended, invalid.)

In order that there may not be any misunderstanding of our position, I would respectfully invite
attention to the decision of the United States Supreme Court in German Alliance Ins. Co. vs. Lewis
([1914, 233 U.S., 389), concerning the legislative regulation of the prices charged by business
affected with a public interest, and to another decision of the United States Supreme Court, that of
Marshall Field & Co. vs. Clark ([1892], 143 U.S., 649), which adopts as its own the principles laid
down in the case of Locke's Appeal ([1873], 72 Pa. St., 491), namely; "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 depend. To deny this
would be to stop the wheels of government. There are many things upon which wise and useful
legislation must depend which cannot be known to the law-making power, and must, therefore, be a
subject of inquiry and determination outside of the halls of legislation."

Avanceña and Villamor, JJ., concur.

Facts:
During a special session, the Philippine Legislature passed and approved Act No. 2868 entitled
An Act Penalizing the Monopoly and Hoarding of Rice, Palay and Corn. The said act under
extraordinary circumstances authorizes the Governor General to issue the necessary Rules and
Regulations in regulating the distribution of such products. Pursuant to this Act, the Governor
General issued Executive Order 53 fixing the price at which rice should be sold.
Ang Tang Ho, a rice dealer, voluntarily, criminally and illegally sold a ganta of rice to Pedro
Trinidad at the price of eighty centavos. The said amount was way higher than that prescribed by
the Executive Order. He was charged in violation of the said Executive Order and was found
guilty as charged and was sentenced to 5 months imprisonment plus a P500.00 fine. He appealed
the sentence countering that there was an undue delegation of power to the Governor General.

Issues:
Whether or not there was an undue delegation of power to the Governor General.

Discussions:

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By the terms of the Organic Act, subject only to constitutional limitations, the power to legislate
and enact laws is vested exclusively in the Legislative, which is elected by a direct vote of the
people of the Philippine Islands. 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 power
in violation of the organic law.
Act No. 2868, as analysed by the Court, 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. The 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
substance, it is a law in all its details in presenti, but which may be left to take effect in
future, if necessary, upon the ascertainment of any prescribed fact or event.

Rulings:
Yes. When Act No. 2868 was 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 ganta of rice at the price of eighty centavos
(P0.80) which is a price greater than that fixed by Executive order No. 53.”

43 Phil. 1 – Political Law – Delegation of Power – Administrative Bodies

In July 1919, the Philippine Legislature (during special session) passed and approved Act
No. 2868 entitled An Act Penalizing the Monopoly and Hoarding of Rice, Palay and Corn.
The said act, under extraordinary circumstances, authorizes the Governor General (GG) to
issue the necessary Rules and Regulations in regulating the distribution of such products.
Pursuant to this Act, in August 1919, the GG issued Executive Order No. 53 which was
published on August 20, 1919. The said EO fixed the price at which rice should be sold. On
the other hand, Ang Tang Ho, a rice dealer, sold a ganta of rice to Pedro Trinidad at the
price of eighty centavos. The said amount was way higher than that prescribed by the EO.
The sale was done on the 6thof August 1919. On August 8, 1919, he was charged
for violation of the said EO. He was found guilty as charged and was sentenced to 5 months
imprisonment plus a P500.00 fine. He appealed the sentence countering that there is an
undue delegation of power to the Governor General.
ISSUE: Whether or not there is undue delegation to the Governor General.
HELD: First of, Ang Tang Ho’s conviction must be reversed because he committed the act
prior to the publication of the EO. Hence, he cannot be ex post facto charged of the crime.
Further, one cannot be convicted of a violation of a law or of an order issued pursuant to the
law when both the law and the order fail to set up an ascertainable standard of guilt.

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Anent the issue of undue delegation, the said 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, and without which the act could not possibly be put in use. The 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 substance, it is a law in all its details in
presenti, but which may be left to take effect in future, if necessary, upon the
ascertainment of any prescribed fact or event.

FACTS: At its special session of 1919, the Philippine Legislature passed Act No. 2868, entitled "An Act
penalizing the monopoly and holding 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 State, 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 State, temporary rules and emergency measures for carrying out the purpose
of this Act.

Section 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 thousands pesos,
or by imprisonment for not more than two years, or both, in the discretion of the court.

Pursuant thereto, on August 1, 1919, the Governor-General issued a proclamation fixing the price at
which rice should be sold and penalizing the violation thereof.

On August 8, 1919, a complaint was filed against the defendant, Ang Tang Ho, charging him with the sale
of rice at an excessive price. 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 defendant questions the validity of the proclamation by the Governor-General pursuant to Act No.
2868, in so far as it authorizes the Governor-General to fix the price at which rice should be sold.

ISSUE: Whether or not the proclamation fixing the price at which rice should be sold confers an
unconstitutional delegation of powers

RULING: Yes. 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 to specify or define under what conditions or for what 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 Legislature does not specify or define what is "an extraordinary rise in the price of palay, rice or
corn." That is also left to the discretion of the Governor-General. 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.

All these are left to the sole judgment and discretion of the Governor-General. The law is thus
incomplete as a legislation.

It is the violation of the proclamation of the Governor-General which constitutes the crime. Before any
rules and regulations were promulgated by the Governor-General, a dealer in rice could sell it at any

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price, even at a peso per "ganta," 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 a crime.

The Governor-General cannot, by proclamation, determine what act shall constitute a crime or not. That
is essentially a legislative task.

RATIO: Allocation of governmental powers. - The doctrine declares that governmental powers are
divided among the three (3) departments of government, the legislative, executive, and judicial, and
broadly operates to confine legislative powers to the legislature, executive powers to the executive
department, and judicial powers to the judiciary, precluding one branch of the government from
exercising or invading the powers of another.

---

Republic of the Philippines

SUPREME COURT

EN BANC

G.R. No. 168056 October 18, 2005

Agenda for Item No. 45

G.R. No. 168056 (ABAKADA Guro Party List Officer Samson S. Alcantara, et al. vs. The Hon.
Executive Secretary Eduardo R. Ermita); G.R. No. 168207 (Aquilino Q. Pimentel, Jr., et
al. vs. Executive Secretary Eduardo R. Ermita, et al.); G.R. No. 168461 (Association of
Pilipinas Shell Dealers, Inc., et al. vs. Cesar V. Purisima, et al.); G.R. No. 168463 (Francis
Joseph G. Escudero vs. Cesar V. Purisima, et al); and G.R. No. 168730 (Bataan Governor
Enrique T. Garcia, Jr. vs. Hon. Eduardo R. Ermita, et al.)

RESOLUTION

For resolution are the following motions for reconsideration of the Court’s Decision dated September
1, 2005 upholding the constitutionality of Republic Act No. 9337 or the VAT Reform Act1:

1) Motion for Reconsideration filed by petitioners in G.R. No. 168463, Escudero, et al., on the
following grounds:

A. THE DELETION OF THE "NO PASS ON PROVISIONS" FOR THE SALE OF PETROLEUM
PRODUCTS AND POWER GENERATION SERVICES CONSTITUTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION ON THE PART OF THE
BICAMERAL CONFERENCE COMMITTEE.

B. REPUBLIC ACT NO. 9337 GROSSLY VIOLATES THE CONSTITUTIONAL IMPERATIVE ON

EXCLUSIVE ORIGINATION OF REVENUE BILLS UNDER §24, ARTICLE VI, 1987 PHILIPPINE
CONSTITUTION.

C. REPUBLIC ACT NO. 9337’S STAND-BY AUTHORITY TO THE EXECUTIVE TO INCREASE

THE VAT RATE, ESPECIALLY ON ACCOUNT OF THE EFFECTIVE RECOMMENDATORY
POWER GRANTED TO THE SECRETARY OF FINANCE, CONSTITUTES UNDUE DELEGATION
OF LEGISLATIVE AUTHORITY.

2) Motion for Reconsideration of petitioner in G.R. No. 168730, Bataan Governor Enrique T. Garcia,
Jr., with the argument that burdening the consumers with significantly higher prices under a VAT
regime vis-à-vis a 3% gross tax renders the law unconstitutional for being arbitrary, oppressive and
inequitable.

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and

3) Motion for Reconsideration by petitioners Association of Pilipinas Shell Dealers, Inc. in G.R. No.
168461, on the grounds that:

I. This Honorable Court erred in upholding the constitutionality of Section 110(A)(2) and Section
110(B) of the NIRC, as amended by the EVAT Law, imposing limitations on the amount of input VAT
that may be claimed as a credit against output VAT, as well as Section 114(C) of the NIRC, as
amended by the EVAT Law, requiring the government or any of its instrumentalities to withhold a 5%
final withholding VAT on their gross payments on purchases of goods and services, and finding that
the questioned provisions:

A. are not arbitrary, oppressive and consfiscatory as to amount to a deprivation of property without
due process of law in violation of Article III, Section 1 of the 1987 Philippine Constitution;

B. do not violate the equal protection clause prescribed under Article III, Section 1 of the 1987
Philippine Constitution; and

C. apply uniformly to all those belonging to the same class and do not violate Article VI, Section
28(1) of the 1987 Philippine Constitution.

II. This Honorable Court erred in upholding the constitutionality of Section 110(B) of the NIRC, as
amended by the EVAT Law, imposing a limitation on the amount of input VAT that may be claimed
as a credit against output VAT notwithstanding the finding that the tax is not progressive as exhorted
by Article VI, Section 28(1) of the 1987 Philippine Constitution.

Respondents filed their Consolidated Comment. Petitioner Garcia filed his Reply.

Petitioners Escudero, et al., insist that the bicameral conference committee should not even have
acted on the no pass-on provisions since there is no disagreement between House Bill Nos. 3705
and 3555 on the one hand, and Senate Bill No. 1950 on the other, with regard to the no pass-
on provision for the sale of service for power generation because both the Senate and the House
were in agreement that the VAT burden for the sale of such service shall not be passed on to the
end-consumer. As to the no pass-on provision for sale of petroleum products, petitioners argue that
the fact that the presence of such a no pass-on provision in the House version and the absence
thereof in the Senate Bill means there is no conflict because "a House provision cannot be in conflict
with something that does not exist."

Such argument is flawed. Note that the rules of both houses of Congress provide that a conference
committee shall settle the "differences" in the respective bills of each house. Verily, the fact that a no
pass-on provision is present in one version but absent in the other, and one version intends two
industries, i.e., power generation companies and petroleum sellers, to bear the burden of the tax,
while the other version intended only the industry of power generation, transmission and distribution
to be saddled with such burden, clearly shows that there are indeed differences between the bills
coming from each house, which differences should be acted upon by the bicameral conference
committee. It is incorrect to conclude that there is no clash between two opposing forces with regard
to the no pass-on provision for VAT on the sale of petroleum products merely because such
provision exists in the House version while it is absent in the Senate version. It is precisely the
absence of such provision in the Senate bill and the presence thereof in the House bills that causes
the conflict. The absence of the provision in the Senate bill shows the Senate’s disagreement to the
intention of the House of Representatives make the sellers of petroleum bear the burden of the VAT.
Thus, there are indeed two opposing forces: on one side, the House of Representatives which wants
petroleum dealers to be saddled with the burden of paying VAT and on the other, the Senate which
does not see it proper to make that particular industry bear said burden. Clearly, such conflicts and
differences between the no pass-on provisions in the Senate and House bills had to be acted upon
by the bicameral conference committee as mandated by the rules of both houses of Congress.

Moreover, the deletion of the no pass-on provision made the present VAT law more in consonance
with the very nature of VAT which, as stated in the Decision promulgated on September 1, 2005, is a
tax on spending or consumption, thus, the burden thereof is ultimately borne by the end-consumer.

Escudero, et al., then claim that there had been changes introduced in the Rules of the House of
Representatives regarding the conduct of the House panel in a bicameral conference committee,

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since the time of Tolentino vs. Secretary of Finance2 to act as safeguards against possible abuse of
authority by the House members of the bicameral conference committee. Even assuming that the
rule requiring the House panel to report back to the House if there are substantial differences in the
House and Senate bills had indeed been introduced after Tolentino, the Court stands by its ruling
that the issue of whether or not the House panel in the bicameral conference committee complied
with said internal rule cannot be inquired into by the Court. To reiterate, "mere failure to conform to
parliamentary usage will not invalidate the action (taken by a deliberative body) when the requisite
number of members have agreed to a particular measure."3

Escudero, et. al., also contend that Republic Act No. 9337 grossly violates the constitutional
imperative on exclusive origination of revenue bills under Section 24 of Article VI of the Constitution
when the Senate introduced amendments not connected with VAT.

The Court is not persuaded.

Article VI, Section 24 of the Constitution provides:

Sec. 24 All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of
local application, and private bills shall originate exclusively in the House of Representatives, but the
Senate may propose or concur with amendments.

Section 24 speaks of origination of certain bills from the House of Representatives which has been
interpreted in the Tolentino case as follows:

… To begin with, it is not the law — but the revenue bill — which is required by the Constitution to
"originate exclusively" in the House of Representatives. It is important to emphasize this, because a
bill originating in the House may undergo such extensive changes in the Senate that the result may
be a rewriting of the whole … At this point, what is important to note is that, as a result of the Senate
action, a distinct bill may be produced. To insist that a revenue statute — and not only the bill which
initiated the legislative process culminating in the enactment of the law — must substantially be the
same as the House bill would be to deny the Senate's power not only to "concur with amendments"
but also to " propose amendments." It would be to violate the coequality of legislative power of the
two houses of Congress and in fact make the House superior to the Senate.

… Given, then, the power of the Senate to propose amendments, the Senate can propose its own
version even with respect to bills which are required by the Constitution to originate in the House.

...

Indeed, what the Constitution simply means is that the initiative for filing revenue, tariff, or tax bills,
bills authorizing an increase of the public debt, private bills and bills of local application must come
from the House of Representatives on the theory that, elected as they are from the districts, the
members of the House can be expected to be more sensitive to the local needs and problems. On
the other hand, the senators, who are elected at large, are expected to approach the same problems
from the national perspective. Both views are thereby made to bear on the enactment of such laws.4

Clearly, after the House bills as approved on third reading are duly transmitted to the Senate, the
Constitution states that the latter can propose or concur with amendments. The Court finds that the
subject provisions found in the Senate bill are within the purview of such constitutional provision as
declared in the Tolentino case.

The intent of the House of Representatives in initiating House Bill Nos. 3555 and 3705 was to solve
the country’s serious financial problems. It was stated in the respective explanatory notes that there
is a need for the government to make significant expenditure savings and a credible package of
revenue measures. These measures include improvement of tax administration and control and
leakages in revenues from income taxes and value added tax. It is also stated that one opportunity
that could be beneficial to the overall status of our economy is to review existing tax rates, evaluating
the relevance given our present conditions. Thus, with these purposes in mind and to accomplish
these purposes for which the house bills were filed, i.e., to raise revenues for the government, the
Senate introduced amendments on income taxes, which as admitted by Senator Ralph Recto, would
yield about ₱10.5 billion a year.

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Moreover, since the objective of these house bills is to raise revenues, the increase in corporate
income taxes would be a great help and would also soften the impact of VAT measure on the
consumers by distributing the burden across all sectors instead of putting it entirely on the shoulders
of the consumers.

As to the other National Internal Revenue Code (NIRC) provisions found in Senate Bill No.
1950, i.e., percentage taxes, franchise taxes, amusement and excise taxes, these provisions are
needed so as to cushion the effects of VAT on consumers. As we said in our decision, certain goods
and services which were subject to percentage tax and excise tax would no longer be VAT exempt,
thus, the consumer would be burdened more as they would be paying the VAT in addition to these
taxes. Thus, there is a need to amend these sections to soften the impact of VAT. The Court finds
no reason to reverse the earlier ruling that the Senate introduced amendments that are germane to
the subject matter and purposes of the house bills.

Petitioners Escudero, et al., also reiterate that R.A. No. 9337’s stand- by authority to the Executive to
increase the VAT rate, especially on account of the recommendatory power granted to the Secretary
of Finance, constitutes undue delegation of legislative power. They submit that the recommendatory
power given to the Secretary of Finance in regard to the occurrence of either of two events using the
Gross Domestic Product (GDP) as a benchmark necessarily and inherently required extended
analysis and evaluation, as well as policy making.

There is no merit in this contention. The Court reiterates that in making his recommendation to the
President on the existence of either of the two conditions, the Secretary of Finance is not acting as
the alter ego of the President or even her subordinate. He is acting as the agent of the legislative
department, to determine and declare the event upon which its expressed will is to take effect. The
Secretary of Finance becomes the means or tool by which legislative policy is determined and
implemented, considering that he possesses all the facilities to gather data and information and has
a much broader perspective to properly evaluate them. His function is to gather and collate statistical
data and other pertinent information and verify if any of the two conditions laid out by Congress is
present. Congress granted the Secretary of Finance the authority to ascertain the existence of a fact,
namely, whether by December 31, 2005, the value-added tax collection as a percentage of GDP of
the previous year exceeds two and four-fifth percent (24/5%) or the national government deficit as a
percentage of GDP of the previous year exceeds one and one-half percent (1½%). If either of these
two instances has occurred, the Secretary of Finance, by legislative mandate, must submit such
information to the President. Then the 12% VAT rate must be imposed by the President effective
January 1, 2006. Congress does not abdicate its functions or unduly delegate power when it
describes what job must be done, who must do it, and what is the scope of his authority; in our
complex economy that is frequently the only way in which the legislative process can go
forward. There is no undue delegation of legislative power but only of the discretion as to the
execution of a law. This is constitutionally permissible. Congress did not delegate the power to tax
but the mere implementation of the law. The intent and will to increase the VAT rate to 12% came
from Congress and the task of the President is to simply execute the legislative policy. That
Congress chose to use the GDP as a benchmark to determine economic growth is not within the
province of the Court to inquire into, its task being to interpret the law.

With regard to petitioner Garcia’s arguments, the Court also finds the same to be without merit. As
stated in the assailed Decision, the Court recognizes the burden that the consumers will be bearing
with the passage of R.A. No. 9337. But as was also stated by the Court, it cannot strike down the
law as unconstitutional simply because of its yokes. The legislature has spoken and the only role
that the Court plays in the picture is to determine whether the law was passed with due regard to the
mandates of the Constitution. Inasmuch as the Court finds that there are no constitutional infirmities
with its passage, the validity of the law must therefore be upheld.

Finally, petitioners Association of Pilipinas Shell Dealers, Inc. reiterated their arguments in the
petition, citing this time, the dissertation of Associate Justice Dante O. Tinga in his Dissenting
Opinion.

The glitch in petitioners’ arguments is that it presents figures based on an event that is yet to
happen. Their illustration of the possible effects of the 70% limitation, while seemingly concrete, still
remains theoretical. Theories have no place in this case as the Court must only deal with an
existing case or controversy that is appropriate or ripe for judicial determination, not one that
is conjectural or merely anticipatory.5 The Court will not intervene absent an actual and
substantial controversy admitting of specific relief through a decree conclusive in nature, as
distinguished from an opinion advising what the law would be upon a hypothetical state of facts.6

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The impact of the 70% limitation on the creditable input tax will ultimately depend on how one
manages and operates its business. Market forces, strategy and acumen will dictate their moves.
With or without these VAT provisions, an entrepreneur who does not have the ken to adapt to
economic variables will surely perish in the competition. The arguments posed are within the realm
of business, and the solution lies also in business.

Petitioners also reiterate their argument that the input tax is a property or a property right. In the
same breath, the Court reiterates its finding that it is not a property or a property right, and a VAT-
registered person’s entitlement to the creditable input tax is a mere statutory privilege.

Petitioners also contend that even if the right to credit the input VAT is merely a statutory privilege, it
has already evolved into a vested right that the State cannot remove.

As the Court stated in its Decision, the right to credit the input tax is a mere creation of law. Prior to
the enactment of multi-stage sales taxation, the sales taxes paid at every level of distribution are not
recoverable from the taxes payable. With the advent of Executive Order No. 273 imposing a 10%
multi-stage tax on all sales, it was only then that the crediting of the input tax paid on purchase or
importation of goods and services by VAT-registered persons against the output tax was
established. This continued with the Expanded VAT Law (R.A. No. 7716), and The Tax Reform Act
of 1997 (R.A. No. 8424). The right to credit input tax as against the output tax is clearly a privilege
created by law, a privilege that also the law can limit. It should be stressed that a person has no
vested right in statutory privileges.7

The concept of "vested right" is a consequence of the constitutional guaranty of due process that
expresses a present fixed interest which in right reason and natural justice is protected against
arbitrary state action; it includes not only legal or equitable title to the enforcement of a demand but
also exemptions from new obligations created after the right has become vested. Rights are
considered vested when the right to enjoyment is a present interest, absolute, unconditional, and
perfect or fixed and irrefutable.8 As adeptly stated by Associate Justice Minita V. Chico-Nazario in
her Concurring Opinion, which the Court adopts, petitioners’ right to the input VAT credits has not
yet vested, thus –

It should be remembered that prior to Rep. Act No. 9337, the petroleum dealers’ input VAT credits
were inexistent – they were unrecognized and disallowed by law. The petroleum dealers had no
such property called input VAT credits. It is only rational, therefore, that they cannot acquire vested
rights to the use of such input VAT credits when they were never entitled to such credits in the first
place, at least, not until Rep. Act No. 9337.

My view, at this point, when Rep. Act No. 9337 has not yet even been implemented, is that
petroleum dealers’ right to use their input VAT as credit against their output VAT unlimitedly has not
vested, being a mere expectancy of a future benefit and being contingent on the continuance of
Section 110 of the National Internal Revenue Code of 1997, prior to its amendment by Rep. Act No.
9337.

The elucidation of Associate Justice Artemio V. Panganiban is likewise worthy of note, to wit:

Moreover, there is no vested right in generally accepted accounting principles. These refer to
accounting concepts, measurement techniques, and standards of presentation in a company’s
financial statements, and are not rooted in laws of nature, as are the laws of physical science, for
these are merely developed and continually modified by local and international regulatory accounting
bodies. To state otherwise and recognize such asset account as a vested right is to limit the taxing
power of the State. Unlimited, plenary, comprehensive and supreme, this power cannot be unduly
restricted by mere creations of the State.

More importantly, the assailed provisions of R.A. No. 9337 already involve legislative policy and
wisdom. So long as there is a public end for which R.A. No. 9337 was passed, the means through
which such end shall be accomplished is for the legislature to choose so long as it is within
constitutional bounds. As stated in Carmichael vs. Southern Coal & Coke Co.:

If the question were ours to decide, we could not say that the legislature, in adopting the present
scheme rather than another, had no basis for its choice, or was arbitrary or unreasonable in its
action. But, as the state is free to distribute the burden of a tax without regard to the particular
purpose for which it is to be used, there is no warrant in the Constitution for setting the tax aside

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because a court thinks that it could have distributed the burden more wisely. Those are functions
reserved for the legislature.9

WHEREFORE, the Motions for Reconsideration are hereby DENIED WITH FINALITY. The
temporary restraining order issued by the Court is LIFTED.

SO ORDERED.

(The Justices who filed their respective concurring and dissenting opinions maintain their respective
positions. Justice Dante O. Tinga filed a dissenting opinion to the present Resolution; while Justice
Consuelo Ynares- Santiago joins him in his dissenting opinion.)

DISSENTING OPINION

Tinga, J.:

Once again, the majority has refused to engage and refute in any meaningful fashion the arguments
raised by the petitioners in G.R. No. 168461. The de minimis appreciation exhibited by the majority
of the issues of 70% cap, the 60-month amortization period, and 5% withholding VAT on
transactions made with the national government is regrettable, with ruinous consequences for the
nation. I see no reason to turn back from any of the views expressed in my Dissenting Opinion, and I
accordingly dissent from the denial of the Motion for Reconsideration filed by the petitioners in G.R.
No. 168461.1

The reasons for my vote have been comprehensively discussed in my previous Dissenting Opinion,
and I do not see the need to replicate them herein. However, I wish to stress a few points.

Tax Statutes May Be Invalidated

If They Pose a Clear and Present Danger

To the Deprivation of Life, Liberty and

Property Without Due Process of Law

The majority again dismisses the arguments of the petitioners as "theoretical", "conjectural" or
merely "anticipatory," notwithstanding that the injury to the taxpayers resulting from Section 8 and 12
of the E-VAT Law is ascertainable with mathematical certainty. In support of this view, the majority
cites the Court’s Resolution dated 15 June 2005 in Information Technology Foundation v.
COMELEC,2 one of the rulings issued in that case subsequent to the main Decision rendered on 13
January 2004. The reference is grievously ironic, considering that in the 13 January 2004 Decision,
the Court, over vigorous dissents, chose anyway to intervene and grant the petition despite the fact
that the petitioners therein did not allege any violation of any constitutional provision or letter of
statute.3 In this case, the petitioners have squarely invoked the violation of the Bill of Rights of the
Constitution, and yet the majority is suddenly timid, unlike in Infotech.

Still, the formulation of the majority unfortunately leaves the impression that any statute, taxing or
otherwise, is beyond judicial attack prior to its implementation. If the tax measure in question
provided that the taxpayer shall remit all income earned to the government beginning 1 January
2008, would this mean that the Court can take cognizance of the legal challenge only starting 2
January 2008?

I do not share the majority’s penchant for awaiting the blood spurts before taking action even when
the knife’s edge already dangles. As I maintained in my Dissenting Opinion, a tax measure may be
validly challenged and stricken down even before its implementation if it poses a clear and present
danger to the deprivation of life, liberty or property of the taxpayer without due process of law. This is
the expectation of every citizen who wishes to maintain trust in all the branches of government. In
the enforcement of the constitutional rights of all persons, the commonsense expectation is that the
Court, as guardian of these rights, is empowered to step in even before the prospective violation
takes place. Hence, the evolution of the "clear and present danger" doctrine and other analogous
principles, without which, the Court would be seen as inutile in the face of constitutional violation.

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Of course, not every anticipatory threat to constitutional liberties can be assailed prior to
implementation, hence the employment of the "clear and present danger" standard to separate the
wheat from the chaff. Still, the Court should not be so readily dismissive of the petitioners’ posture
herein merely because it is anticipatory. There should have been a meaningful engagement by the
majority of the facts and formulae presented by the petitioners before the reasonable conclusion
could have been reached on the maturity of the claim. That the majority has not bothered to do so is
ultimately of tragic consequence.

70% Input VAT Credit

An Impaired Asset

The ponencia, joined by Justices Panganiban and Chico-Nazario, express the belief that no property
rights attach to the input VAT paid by the taxpayer. This is a bizarre view that assumes that all
income earned by private persons preternaturally belongs to the government, and whatever is
retained by the person after taxes is acquired as a matter of privilege. This is the sort of thinking that
has fermented revolutions throughout history, such as the American Revolution of 1776.

I pointed out in my Dissenting Opinion that under current accepted international accounting
standards, the 30% prepaid input VAT would be recorded as a loss in the accounting books, since
the possibility of its recovery is improbable, considering that the E-VAT Law allows its recovery only
after the business has ceased to exist. Even the Bureau of Internal Revenue itself has long
recognized the unutilized input VAT as an asset.

The majority fails to realize that even under the new E-VAT Law, the State recognizes that the
persons who pre-pay that input VAT, usually the dealers or retailers, are not the persons who are
liable to pay for the tax. The VAT system, as implemented through the previous VAT law and the
new E-VAT Law, squarely holds the end consumer as the taxpayer liable to shoulder the input VAT.
Nonetheless, under the mechanism foisted in the new E-VAT Law, the dealer or retailer who pre-
pays the input VAT is virtually precluded from recovering the pre-paid input VAT, since the law only
allows such recovery upon the cessation of the business. Indeed, the only way said class of
taxpayers can recover this pre-paid input VAT was if it were to cease operations at the end of every
quarter.

The illusion that blinds the majority to this state of affairs is the claim that the pre-paid input VAT may
anyway be carried over into the succeeding quarter, a chimera enhanced by the grossly misleading
presentation of the Office of the Solicitor General. What this deception fosters, and what the majority
fails to realize, is that since the taxpayer is perpetually obliged to remit the 30% input VAT every
quarter, there would be a continuous accumulation of excess input VAT. It is not true then that the
input VAT prepaid for the first quarter can be recovered in the second, third or fourth quarter of that
year, or at any time in the next year for that matter since the amount of prepaid input VAT
accumulates with every succeeding prepayment of input VAT. Moreover, the accumulation of the
prepaid input VAT diminishes the actual value of the refundable amounts, considering the
established principle of "time-value of money", as explained in my Dissenting Opinion.

Thus, the pre-paid input VAT, for which the petitioners and other similarly situated taxpayers are not
even ultimately liable in the first place, represents in tangible terms an actual loss. To put it more
succinctly, when the taxpayer prepays the 30% input VAT, there is no chance for its recovery except
until after the taxpayer ceases to be such. This point is crucial, as it goes in the heart of the
constitutional challenge raised by the petitioners. A recognition that the input VAT is a property asset
places it squarely in the ambit of the due process clause.

The majority now stresses that prior to Executive Order No. 273 sales taxes paid by the retailer or
dealers were not recoverable. The nature of a sales tax precisely is that it is shouldered by the
seller, not the consumer. In that case, the clear legislative intent is to encumber the retailer with the
end tax. Under the VAT system, as enshrined under Rep. Act No. 9337, the new E-VAT Law, there
is precisely a legislative recognition that it is the end user, not the seller, who shoulders the E-VAT.
The problem with the new E-VAT law is that it correspondingly imposes a defeatist mechanism that
obviates this entitlement of the seller by forcibly withholding in perpetua this pre-paid input VAT.

The majority cites with approval Justice Chico-Nazario’s argument, as expressed in her concurring
opinion, that prior to the new E-VAT Law, the petroleum dealers in particular had no input VAT
credits to speak of, and therefore, could not assert any property rights to the input VAT credits under
the new law. Of course the petroleum dealers had no input VAT credits prior to the E-VAT Law

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because precisely they were not covered by the VAT system in the first place. What would now be
classified as "input VAT credits" was, in real terms, profit obtainable by the petroleum dealers prior to
the new E-VAT Law. The E-VAT Law stands to diminish such profit, not by outright taking perhaps,
but by ad infinitum confiscation with the illusory promise of eventual return. Obviously, there is a
deprivation of property in such case; yet is it seriously contended that such deprivation is ipso
facto sheltered if it is not classified as a taking, but instead reclassified as a "credit"?

It is highly distressful that the Court, in its haste to decree petitioners as bereft of any vested
property rights, rejects the notion that a person has a vested right to the earnings and profits
incurred in business. Before, no legal basis could be found to prop up such a palpably outlandish
claim; but the Decision, as affirmed by the majority’s Resolution, now enshrines a temerarious
proposition with doctrinal status.

In the Decision, and also in Justice Panganiban’s Separate Opinion therein, the case of United
Paracale Mining Co. v. De la Rosa4 was cited in support of the proposition that there is no vested
right to the input VAT credit. Justice Panganiban went as far as to cite that case to support the
contention that "[t]here is no vested right in a deferred input tax account; it is a mere statutory
privilege." Reliance on the case is quite misplaced. First, as pointed out in my Dissenting Opinion, it
does not even pertain to tax credits involving as it does, questions on the jurisdiction of the Bureau
of Mines.5 Second, the putative vested rights therein pertained to mining claims, yet all mineral
resources indisputably belong to the State. Herein, the rights pertain to profit incurred by private
enterprise, and certainly the majority cannot contend that such profits actually belong to the State.

As stated in my Dissenting Opinion, the Constitution itself recognizes a right to income and profit
when it recognizes "the right of enterprises to reasonable returns on investments, and to expansion
and growth."6 Section 20, Article II of the Constitution further mandates that the State recognize the
indispensable role of the private sector, the encouragement of private enterprise, and the provision
of incentives to needed investments.7 Indeed, there is a fundamental recognition in any form of
democratic government that recognizes a capitalist economy that the enterprise has a right to its
profits. Today, the Court instead affirms that there is no such right. Should capital flight ensue, the
phenomenom should not be blamed on investors in view of our judicial system’s rejection of
capitalism’s fundamental precept.

Mainstream Denunciation of 70% Cap

The fact that petitioners are dealers of petroleum products may have left the impression that the
70% cap singularly affects the petroleum industry; or that other classes of dealers or retailers do not
pose the same objections to these "innovations" in the E-VAT law. This is far from the truth.

In fact, the clamor against the 70% cap has been widespread among the players and components in
the financial mainstream. Denunciations have been registered by the Philippine Chamber of
Commerce and Industry8, the Joint Foreign Chambers of the Philippines (comprising of the American
Chamber of Commerce in the Philippines, the Australian-New Zealand Chamber Commerce of the
Philippines, Inc., the Canadian Chamber of Commerce of the Philippines, Inc., the European
Chamber of Commerce of the Philippines, Inc., the Japanese Chamber of Commerce of the
Philippines, Inc., the Korean Chamber of Commerce and Industry of the Philippines, and the
Philippine Association of Multinational Companies Regional Headquarters, Inc.),9 the Filipino-
Chinese Chamber of Commerce and Industry,10 the Federation of Philippine Industries,11 the
Consumer and Oil Price Watch,12 the Association of Certified Public Accountants in Public
Practice,13 the Philippine Tobacco Institute,14 and the auditing firm of PricewaterhouseCooper.15

Even newly installed Finance Secretary Margarito Teves has expressed concern that the 70% input
VAT "may not work across all industries because of varying profit margins".16 Other experts who
have voiced concerns on the 70% input VAT are former NEDA Directors Cielito Habito17 and Solita
Monsod,18 Peter Wallace of the Wallace Business Forum,19 and Paul R. Cooper, director of
PricewaterhouseCooper.

In fact, Mr. Cooper published in the Philippine Daily Inquirer a lengthy disquisition on the problems
surrounding the 70% cap, portions of which I replicate below:

Policy concerns on the cap

When the idea of putting a cap was originally introduced on the floor of the Senate. The idea was to
address to some extent the under-reporting of output VAT by non-complaint taxpayers. The original

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suggestion was a 90 percent cap, or effectively a 1-percent minimum VAT. At that level, the rule
should not impact adversely on complaint taxpayers, but would result in non-complaint taxpayers
having to account for closer to their true tax liability.

As a general policy consideration, one should question why our legislators are penalizing complaint
taxpayers when the fundamental issue is at the apparent inability of the Bureau of Internal Revenue
(BIR) to implement tax law effectively.

At a 90-percent cap, the measure might still have been defensible as a rough proxy for VAT.
However, somewhere in the bicameral process, the rule has become even more punitive with a 70-
percent cap. As with most amendments introduced at the bicameral stage, there is no public
indication about what lawmakers were thinking when they put the travesty in place.

xxx

One of the arguments in Senate debates for taxing the power and petroleum sectors was that if it
was good enough for mom-and-pop stores to have to account for the VAT, it was good enough for
the biggest companies in the country to do the same. A similar argument here is that if small
businesses have to pay a minimum 3-percent tax, why should larger VAT-registered persons get
away with paying less?

The problem with this thinking is threefold:

· The percentage tax applies to small businesses in the hard-to-tax sector and a few believe the BIR
collects close to what it should from this. Nor should we be overly concerned if this is the case—the
revenues are small, and the BIR’s efforts would be a lot better focused on larger taxpayers where
more significant revenues will be at issue.

· VAT-registered persons incur compliance costs. The 3-percent tax might be better conceived as a
slightly more expensive option to allow taxpayers to opt out of the VAT, rather than a punitive rule for
small businesses. (If the percentage tax is considered unduly punitive, why is it not just repealed?)

· Ironically, one of the new measures in the Senate bill was to allow taxpayers with turnovers below,
the registration threshold to register voluntarily for VAT if they believe the 3-percent tax imposition to
be excessive. Without the minimum VAT, smaller taxpayers might have been encouraged to enter
the more formalized VAT sector.

Potential consequences of the cap

The minimum VAT will distort the way taxpayers conduct business. A 3-percent minimum VAT is
more likely to impact on sellers of goods than on sellers of services, as their proportion of taxable
inputs are lower (there is no VAT paid when using labor, but there is VAT on the purchase of goods).
Consequently, there will be a bias toward consuming services over goods. Businesses may have an
incentive to obtain goods from the informal (and potentially tax-evading) sector as there will be no
input tax paid for the purchase—in other words, the bill may actively encourage less tax complaint
behavior. Business structures may change; expect buy-sell distributors to convent into commission
agents, as this reduces the risk that they will need to pay more than should be paid under a VAT
system to cover the 3-percent minimum VAT.20

These objections are voiced by members of the sensible center, and not those reflexively against
VAT or any tax imposition of the current administration. These objections are raised by the people
who stand to be directly affected on a daily punitive basis by the imposition of the 70% cap, the 60-
month amortization period and the 5% withholding VAT. Indeed, Justice Chico-Nazario has
expressed her disbelief over, or at least has asserted as unproven, the claimed impact of the input
VAT on the petroleum dealers.21 Of course there can be no tangible gauge as of yet on the impact of
these changes in the VAT law, since they have yet to be implemented. However, the prevalent
adverse reaction within the business sector should be sufficiently expressive of the actual fears of
the people who should know better. It is sad that the majority, by maintaining a blithely naïve view of
the input VAT, perpetuates the disconnect between the Court and the business sector,
unnecessarily considering that in this instance, the concerns of the financial community can be
translated into a viable constitutional challenge.

Reliance on Legislative Amendments

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An Abdication of the Court’s Constitutional Duty

Justice Panganiban has already expressed the view that the remedy to the inequities caused by the
new input VAT system would be amending the law, and not an outright declaration of
unconstitutionality. I can only hazard a guess on how many members of the Court or the legal
community are similarly reliant on that remedy as a means of assuaging their fears on the impact of
the input VAT innovations.

As I stated in my Dissenting Opinion, it is this Court, and not the legislature, which has the duty to
strike down unconstitutional laws. Congress may amend unconstitutional laws to remedy such legal
infirmities, but it is under no constitutional or legal obligation to do so. The same does not hold true
with this Court. The essence of judicial review mandates that the Court strike down unconstitutional
laws.

Another corollary prospect has also arisen, that the Executive Department itself will mitigate the
implementation of the 70% cap by not fully implementing the law.

This prospect of course is speculative, the sort of speculation that is wholly dependent on the whim
of the officials of the executive branch and one that cannot be quantified by mathematical formula.
This cannot be the basis for any judicial action or vote. Moreover, such resort may actually be illegal.

For one, Article 239 of the Revised Penal Code imposes the penalty of prision correccional on public
officers "who shall encroach upon the powers of the legislative branch of the Government, either by
making general rules or regulations beyond the scope of his authority, or by attempting to repeal a
law or suspending the execution thereof." Certainly, the remedy to the inequities of the E-VAT Law
cannot be left to administrative pussy-footing, considering that these officials may be jailed for
refusing to implement the law, or obfuscating the legislative will.

Second, it is a cardinal rule that an administrative agency such as the Bureau of Internal Revenue or
even the Department of Finance cannot amend an act of Congress. Whatever administrative
regulations they may adopt under legislative authority must be in harmony with the provisions of the
law they are intended to carry into effect. They cannot widen or diminish its scope.22

Finally, it must be remembered that one of the central doctrines enforced in the disposition of the
joint petitions is that the power to tax belongs solely to the legislative branch of government. If the
legislative will were to be frustrated by haphazard implementation by the executive branch, all our
disquisitions on this matter, as well as the key constitutional principle on the inherent, non-delegable
nature of the legislative power of taxation, will be for naught.

Indeed, I truly fear the scenario when, after the deluge, the executive branch of government
suspends the implementation of the 70% cap, or increases the cap to a higher amount such as 90%.
Any taxpayer will have standing to attack such remedial measure, considering that the net effect
would be to diminish the government’s collection of cash at hand. Following the law, the proper
judicial action would be to uphold the clear legislative intent over the reengineering of the taxing
provisions by the executive branch of government. Yet if the courts instead uphold the power of the
executive branch of government to reinvent the tax statute, then the end concession would be that
the power to enact tax laws ultimately belongs to the executive branch of government.

I hesitate to say this, but there will be confusion, instability, and multiple fatalities within the business
sector with the enforcement of the amendments of Section 8 and 12 of the E-VAT Law. It could have
been stopped through the allowance of the petition in G.R. No. 168461, but regrettably the Court did
not act.

I respectfully dissent.

DANTE O. TINGA

Associate Justice

Facts:

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Petitioners ABAKADA GURO Party List challenged the constitutionality of R.A. No. 9337
particularly Sections 4, 5 and 6, amending Sections 106, 107 and 108, respectively, of the
National Internal Revenue Code (NIRC). These questioned provisions contain a
uniform proviso authorizing the President, upon recommendation of the Secretary of Finance, to
raise the VAT rate to 12%, effective January 1, 2006, after any of the following conditions have
been satisfied, to wit:
. . . That the President, upon the recommendation of the Secretary of Finance, shall, effective
January 1, 2006, raise the rate of value-added tax to twelve percent (12%), after any of the
following conditions has been satisfied:
(i) Value-added tax collection as a percentage of Gross Domestic Product (GDP) of the previous
year exceeds two and four-fifth percent (2 4/5%); or
(ii) National government deficit as a percentage of GDP of the previous year exceeds one and
one-half percent (1 ½%).
Petitioners argue that the law is unconstitutional, as it constitutes abandonment by Congress of
its exclusive authority to fix the rate of taxes under Article VI, Section 28(2) of the 1987
Philippine Constitution. They further argue that VAT is a tax levied on the sale or exchange of
goods and services and cannot be included within the purview of tariffs under the exemption
delegation since this refers to customs duties, tolls or tribute payable upon merchandise to the
government and usually imposed on imported/exported goods. They also said that the President
has powers to cause, influence or create the conditions provided by law to bring about the
conditions precedent. Moreover, they allege that no guiding standards are made by law as to how
the Secretary of Finance will make the recommendation. They claim, nonetheless, that any
recommendation of the Secretary of Finance can easily be brushed aside by the President since
the former is a mere alter ego of the latter, such that, ultimately, it is the President who decides
whether to impose the increased tax rate or not.

Issues:

1. Whether or not R.A. No. 9337 has violated the provisions in Article VI, Section 24, and
Article VI, Section 26 (2) of the Constitution.
2. Whether or not there was an undue delegation of legislative power in violation of Article VI
Sec 28 Par 1 and 2 of the Constitution.
3. Whether or not there was a violation of the due process and equal protection under Article III
Sec. 1 of the Constitution.

Discussions:

1. Basing from the ruling of Tolentino case, it is not the law, but the revenue bill which is
required by the Constitution to “originate exclusively” in the House of Representatives, but
Senate has the power not only to propose amendments, but also to propose its own version
even with respect to bills which are required by the Constitution to originate in the House.
the Constitution simply means is that the initiative for filing revenue, tariff or tax bills, bills
authorizing an increase of the public debt, private bills and bills of local application must
come from the House of Representatives on the theory that, elected as they are from the
districts, the members of the House can be expected to be more sensitive to the local needs
and problems. On the other hand, the senators, who are elected at large, are expected to
approach the same problems from the national perspective. Both views are thereby made to
bear on the enactment of such laws.

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2. In testing whether a statute constitutes an undue delegation of legislative power or not, it is
usual to inquire whether the statute was complete in all its terms and provisions when it left
the hands of the legislature so that nothing was left to the judgment of any other appointee or
delegate of the legislature.
3. The equal protection clause under the Constitution means that “no person or class of persons
shall be deprived of the same protection of laws which is enjoyed by other persons or other
classes in the same place and in like circumstances.”

Rulings:

1. R.A. No. 9337 has not violated the provisions. The revenue bill exclusively originated in the
House of Representatives, the Senate was acting within its constitutional power to introduce
amendments to the House bill when it included provisions in Senate Bill No. 1950 amending
corporate income taxes, percentage, excise and franchise taxes. Verily, Article VI, Section 24
of the Constitution does not contain any prohibition or limitation on the extent of the
amendments that may be introduced by the Senate to the House revenue bill.
2. There is no undue delegation of legislative power but only of the discretion as to the
execution of a law. This is constitutionally permissible. Congress does not abdicate its
functions or unduly delegate power when it describes what job must be done, who must do it,
and what is the scope of his authority; in our complex economy that is frequently the only
way in which the legislative process can go forward.
1.3.Supreme Court held no decision on this matter. The power of the State to make reasonable
and natural classifications for the purposes of taxation has long been established. Whether it
relates to the subject of taxation, the kind of property, the rates to be levied, or the amounts
to be raised, the methods of assessment, valuation and collection, the State’s power is
entitled to presumption of validity. As a rule, the judiciary will not interfere with such power
absent a clear showing of unreasonableness, discrimination, or arbitrariness.

Facts:
On May 24, 2005, the President signed into law Republic Act 9337 or the VAT Reform Act.
Before the law took effect on July 1, 2005, the Court issued a TRO enjoining government from
implementing the law in response to a slew of petitions for certiorari and prohibition questioning
the constitutionality of the new law.

The challenged section of R.A. No. 9337 is the common proviso in Sections 4, 5 and 6: “That the
President, upon the recommendation of the Secretary of Finance, shall, effective January 1, 2006,
raise the rate of value-added tax to 12%, after any of the following conditions has been satisfied:

(i) Value-added tax collection as a percentage of Gross Domestic Product (GDP) of the previous
year exceeds two and four-fifth percent (2 4/5%);

or (ii) National government deficit as a percentage of GDP of the previous year exceeds one and
one-half percent (1½%)”

Petitioners allege that the grant of stand-by authority to the President to increase the VAT rate is
an abdication by Congress of its exclusive power to tax because such delegation is not covered

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by Section 28 (2), Article VI Consti. They argue that VAT is a tax levied on the sale or exchange
of goods and services which can’t be included within the purview of tariffs under the exemption
delegation since this refers to customs duties, tolls or tribute payable upon merchandise to the
government and usually imposed on imported/exported goods.

Petitioners further alleged that delegating to the President the legislative power to tax is contrary
to republicanism. They insist that accountability, responsibility and transparency should dictate
the actions of Congress and they should not pass to the President the decision to impose taxes.
They also argue that the law also effectively nullified the President’s power of control, which
includes the authority to set aside and nullify the acts of her subordinates like the Secretary of
Finance, by mandating the fixing of the tax rate by the President upon the recommendation of the
Secretary of Justice.

Issue:
Whether or not the RA 9337's stand-by authority to the Executive to increase the VAT rate,
especially on account of the recommendatory power granted to the Secretary of Finance,
constitutes undue delegation of legislative power?

Ruling:
The powers which Congress is prohibited from delegating are those which are strictly, or
inherently and exclusively, legislative. Purely legislative power which can never be delegated is
the authority to make a complete law- complete as to the time when it shall take effect and as to
whom it shall be applicable, and to determine the expediency of its enactment. It is the nature of
the power and not the liability of its use or the manner of its exercise which determines the
validity of its delegation.

The exceptions are:

(a) delegation of tariff powers to President under Constitution

(b) delegation of emergency powers to President under Constitution

(c) delegation to the people at large

(d) delegation to local governments

(e) delegation to administrative bodies

For the delegation to be valid, it must be complete and it must fix a standard. A sufficient
standard is one which defines legislative policy, marks its limits, maps out its boundaries and
specifies the public agency to apply it.

In this case, it is not a delegation of legislative power BUT a delegation of ascertainment of facts
upon which enforcement and administration of the increased rate under the law is contingent.
The legislature has made the operation of the 12% rate effective January 1, 2006, contingent
upon a specified fact or condition. It leaves the entire operation or non-operation of the 12% rate
upon factual matters outside of the control of the executive. No discretion would be exercised by
the President. Highlighting the absence of discretion is the fact that the word SHALL is used in
the common proviso. The use of the word SHALL connotes a mandatory order. Its use in a
statute denotes an imperative obligation and is inconsistent with the idea of discretion.

Thus, it is the ministerial duty of the President to immediately impose the 12% rate upon the
existence of any of the conditions specified by Congress. This is a duty, which cannot be evaded
by the President. It is a clear directive to impose the 12% VAT rate when the specified
conditions are present.

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Congress just granted the Secretary of Finance the authority to ascertain the existence of a fact---
whether by December 31, 2005, the VAT collection as a percentage of GDP of the previous year
exceeds 2 4/5 % or the national government deficit as a percentage of GDP of the previous year
exceeds one and 1½%. If either of these two instances has occurred, the Secretary of Finance, by
legislative mandate, must submit such information to the President.

In making his recommendation to the President on the existence of either of the two conditions,
the Secretary of Finance is not acting as the alter ego of the President or even her subordinate.
He is acting as the agent of the legislative department, to determine and declare the event upon
which its expressed will is to take effect. The Secretary of Finance becomes the means or tool by
which legislative policy is determined and implemented, considering that he possesses all the
facilities to gather data and information and has a much broader perspective to properly evaluate
them. His function is to gather and collate statistical data and other pertinent information and
verify if any of the two conditions laid out by Congress is present.

Congress does not abdicate its functions or unduly delegate power when it describes what job
must be done, who must do it, and what is the scope of his authority; in our complex economy
that is frequently the only way in which the legislative process can go forward.

There is no undue delegation of legislative power but only of the discretion as to the execution of
a law. This is constitutionally permissible. Congress did not delegate the power to tax but the
mere implementation of the law.
469 SCRA 1 – Political Law – Constitutional Law – The Legislative Department – How a Bill
Becomes a Law – Enrolled Bill Theory
In this case, the constitutionality of R.A. No. 9337 or the RVAT Law (Revitalized Value
Added Tax Law) was put into issue. It was alleged, among others, that said law was not
duly enacted.
R.A. 9337 originated as House Bill No. 3705. After 3rd reading in the lower house, it was
transmitted to the Senate where it was lodged as Senate Bill No. 1950. In the Senate,
several provisions, which were not found in the H.B. 3705, were inserted.
After 3rd reading in the Senate, the lower house found that the House version and the
Senate version have disagreeing provisions. And pursuant to Congress Rules, both Houses
agreed to form a Bicameral Conference Committee (BCC) where representatives from both
Houses were sent to settle the disagreeing provisions.
Apparently however, the BCC further inserted several provisions to S.B. 1950, i.e., stand by
power was granted to the President to raise the valued-added tax rate. Further still, the “No
pass” provision was deleted – this provision prohibited the passing of value-added tax to
consumers.
Nevertheless, said version was passed into law hence the promulgation of R.A. No. 9337.
In 2005, ABAKADA GURO Party List, headed by its officers Attys. Samson Alcantara and
Ed Vincent Albano, as well as co-petitioner [then] Congressman Francis Escudero,
questioned the constitutionality of R.A. No. 9337
Respondents in this case invoked the ruling in the case of Tolentino vs Secretary of
Finance or the Enrolled Bill Doctrine. Said case relied upon by respondents state that the
signing of a bill by the Speaker of the House and the Senate President and the certification
of the Secretaries of both Houses of Congress that it was passed are conclusive of its due
enactment. As such, R.A. No. 9337 enjoys the conclusive presumption of constitutionality
and that the courts cannot go behind the enrolled bill.
ABAKADA GURO et al insists that the Tolentino ruling should be abandoned.
ISSUE: Whether or not the enrolled bill doctrine applies in this case.
HELD: Yes. There is no reason to abandon the ruling in Tolentino. The Supreme Court
ruled that the Supreme Court is not the proper venue to raise concerns regarding
parliamentary procedures. Parliamentary rules are merely procedural and with their

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observance the courts have no concern. Congress is the best judge of how it should
conduct its own business expeditiously and in the most orderly manner.
If a change is desired in the practice of the Bicameral Conference Committee it must be
sought in Congress since this question is not covered by any constitutional provision but is
only an internal rule of each house. To date, Congress has not seen it fit to make such
changes adverted to by the Court. It seems, therefore, that Congress finds the practices of
the bicameral conference committee to be very useful for purposes of prompt and efficient
legislative action.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 159796 July 17, 2007

ROMEO P. GEROCHI, KATULONG NG BAYAN (KB) and ENVIRONMENTALIST CONSUMERS

NETWORK, INC. (ECN), Petitioners,
vs.
DEPARTMENT OF ENERGY (DOE), ENERGY REGULATORY COMMISSION (ERC), NATIONAL
POWER CORPORATION (NPC), POWER SECTOR ASSETS AND LIABILITIES MANAGEMENT
GROUP (PSALM Corp.), STRATEGIC POWER UTILITIES GROUP (SPUG), and PANAY
ELECTRIC COMPANY INC. (PECO),Respondents.

DECISION

NACHURA, J.:

Petitioners Romeo P. Gerochi, Katulong Ng Bayan (KB), and Environmentalist Consumers Network,
Inc. (ECN) (petitioners), come before this Court in this original action praying that Section 34 of
Republic Act (RA) 9136, otherwise known as the "Electric Power Industry Reform Act of 2001"
(EPIRA), imposing the Universal Charge,1and Rule 18 of the Rules and Regulations (IRR)2 which
seeks to implement the said imposition, be declared unconstitutional. Petitioners also pray that the
Universal Charge imposed upon the consumers be refunded and that a preliminary injunction and/or
temporary restraining order (TRO) be issued directing the respondents to refrain from implementing,
charging, and collecting the said charge.3 The assailed provision of law reads:

SECTION 34. Universal Charge. — Within one (1) year from the effectivity of this Act, a universal
charge to be determined, fixed and approved by the ERC, shall be imposed on all electricity end-
users for the following purposes:

(a) Payment for the stranded debts4 in excess of the amount assumed by the National
Government and stranded contract costs of NPC5 and as well as qualified stranded contract
costs of distribution utilities resulting from the restructuring of the industry;

(b) Missionary electrification;6

(c) The equalization of the taxes and royalties applied to indigenous or renewable sources of
energy vis-à-vis imported energy fuels;

(d) An environmental charge equivalent to one-fourth of one centavo per kilowatt-hour

(₱0.0025/kWh), which shall accrue to an environmental fund to be used solely for watershed
rehabilitation and management. Said fund shall be managed by NPC under existing
arrangements; and

(e) A charge to account for all forms of cross-subsidies for a period not exceeding three (3)
years.

The universal charge shall be a non-bypassable charge which shall be passed on and collected from
all end-users on a monthly basis by the distribution utilities. Collections by the distribution utilities
and the TRANSCO in any given month shall be remitted to the PSALM Corp. on or before the

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fifteenth (15th) of the succeeding month, net of any amount due to the distribution utility. Any end-
user or self-generating entity not connected to a distribution utility shall remit its corresponding
universal charge directly to the TRANSCO. The PSALM Corp., as administrator of the fund, shall
create a Special Trust Fund which shall be disbursed only for the purposes specified herein in an
open and transparent manner. All amount collected for the universal charge shall be distributed to
the respective beneficiaries within a reasonable period to be provided by the ERC.

The Facts

Congress enacted the EPIRA on June 8, 2001; on June 26, 2001, it took effect.7

On April 5, 2002, respondent National Power Corporation-Strategic Power Utilities Group8 (NPC-
SPUG) filed with respondent Energy Regulatory Commission (ERC) a petition for the availment from
the Universal Charge of its share for Missionary Electrification, docketed as ERC Case No. 2002-
165.9

On May 7, 2002, NPC filed another petition with ERC, docketed as ERC Case No. 2002-194,
praying that the proposed share from the Universal Charge for the Environmental charge of ₱0.0025
per kilowatt-hour (/kWh), or a total of ₱119,488,847.59, be approved for withdrawal from the Special
Trust Fund (STF) managed by respondent Power Sector Assets and

Liabilities Management Group (PSALM)10 for the rehabilitation and management of watershed
areas.11

On December 20, 2002, the ERC issued an Order12 in ERC Case No. 2002-165 provisionally
approving the computed amount of ₱0.0168/kWh as the share of the NPC-SPUG from the Universal
Charge for Missionary Electrification and authorizing the National Transmission Corporation
(TRANSCO) and Distribution Utilities to collect the same from its end-users on a monthly basis.

On June 26, 2003, the ERC rendered its Decision13 (for ERC Case No. 2002-165) modifying its
Order of December 20, 2002, thus:

WHEREFORE, the foregoing premises considered, the provisional authority granted to petitioner
National Power Corporation-Strategic Power Utilities Group (NPC-SPUG) in the Order dated
December 20, 2002 is hereby modified to the effect that an additional amount of ₱0.0205 per
kilowatt-hour should be added to the ₱0.0168 per kilowatt-hour provisionally authorized by the
Commission in the said Order. Accordingly, a total amount of ₱0.0373 per kilowatt-hour is hereby
APPROVED for withdrawal from the Special Trust Fund managed by PSALM as its share from the
Universal Charge for Missionary Electrification (UC-ME) effective on the following billing cycles:

(a) June 26-July 25, 2003 for National Transmission Corporation (TRANSCO); and

(b) July 2003 for Distribution Utilities (Dus).

Relative thereto, TRANSCO and Dus are directed to collect the UC-ME in the amount of ₱0.0373
per kilowatt-hour and remit the same to PSALM on or before the 15th day of the succeeding month.

In the meantime, NPC-SPUG is directed to submit, not later than April 30, 2004, a detailed report to
include Audited Financial Statements and physical status (percentage of completion) of the projects
using the prescribed format. 1avv phi 1

Let copies of this Order be furnished petitioner NPC-SPUG and all distribution utilities (Dus).

SO ORDERED.

On August 13, 2003, NPC-SPUG filed a Motion for Reconsideration asking the ERC, among
others,14 to set aside the above-mentioned Decision, which the ERC granted in its Order dated
October 7, 2003, disposing:

WHEREFORE, the foregoing premises considered, the "Motion for Reconsideration" filed by
petitioner National Power Corporation-Small Power Utilities Group (NPC-SPUG) is hereby
GRANTED. Accordingly, the Decision dated June 26, 2003 is hereby modified accordingly.

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Relative thereto, NPC-SPUG is directed to submit a quarterly report on the following:

1. Projects for CY 2002 undertaken;

2. Location

3. Actual amount utilized to complete the project;

4. Period of completion;

5. Start of Operation; and

6. Explanation of the reallocation of UC-ME funds, if any.

SO ORDERED.15

Meanwhile, on April 2, 2003, ERC decided ERC Case No. 2002-194, authorizing the NPC to draw
up to ₱70,000,000.00 from PSALM for its 2003 Watershed Rehabilitation Budget subject to the
availability of funds for the Environmental Fund component of the Universal Charge.16

On the basis of the said ERC decisions, respondent Panay Electric Company, Inc. (PECO) charged
petitioner Romeo P. Gerochi and all other end-users with the Universal Charge as reflected in their
respective electric bills starting from the month of July 2003.17

Hence, this original action.

Petitioners submit that the assailed provision of law and its IRR which sought to implement the same
are unconstitutional on the following grounds:

1) The universal charge provided for under Sec. 34 of the EPIRA and sought to be
implemented under Sec. 2, Rule 18 of the IRR of the said law is a tax which is to be collected
from all electric end-users and self-generating entities. The power to tax is strictly a
legislative function and as such, the delegation of said power to any executive or
administrative agency like the ERC is unconstitutional, giving the same unlimited authority.
The assailed provision clearly provides that the Universal Charge is to be determined, fixed
and approved by the ERC, hence leaving to the latter complete discretionary legislative
authority.

2) The ERC is also empowered to approve and determine where the funds collected should
be used.

3) The imposition of the Universal Charge on all end-users is oppressive and confiscatory
and amounts to taxation without representation as the consumers were not given a chance
to be heard and represented.18

Petitioners contend that the Universal Charge has the characteristics of a tax and is collected to fund
the operations of the NPC. They argue that the cases19 invoked by the respondents clearly show the
regulatory purpose of the charges imposed therein, which is not so in the case at bench. In said
cases, the respective funds20 were created in order to balance and stabilize the prices of oil and
sugar, and to act as buffer to counteract the changes and adjustments in prices, peso devaluation,
and other variables which cannot be adequately and timely monitored by the legislature. Thus, there
was a need to delegate powers to administrative bodies.21 Petitioners posit that the Universal Charge
is imposed not for a similar purpose.

On the other hand, respondent PSALM through the Office of the Government Corporate Counsel
(OGCC) contends that unlike a tax which is imposed to provide income for public purposes, such as
support of the government, administration of the law, or payment of public expenses, the assailed
Universal Charge is levied for a specific regulatory purpose, which is to ensure the viability of the
country's electric power industry. Thus, it is exacted by the State in the exercise of its inherent police
power. On this premise, PSALM submits that there is no undue delegation of legislative power to the
ERC since the latter merely exercises a limited authority or discretion as to the execution and
implementation of the provisions of the EPIRA.22

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Respondents Department of Energy (DOE), ERC, and NPC, through the Office of the Solicitor
General (OSG), share the same view that the Universal Charge is not a tax because it is levied for a
specific regulatory purpose, which is to ensure the viability of the country's electric power industry,
and is, therefore, an exaction in the exercise of the State's police power. Respondents further
contend that said Universal Charge does not possess the essential characteristics of a tax, that its
imposition would redound to the benefit of the electric power industry and not to the public, and that
its rate is uniformly levied on electricity end-users, unlike a tax which is imposed based on the
individual taxpayer's ability to pay. Moreover, respondents deny that there is undue delegation of
legislative power to the ERC since the EPIRA sets forth sufficient determinable standards which
would guide the ERC in the exercise of the powers granted to it. Lastly, respondents argue that the
imposition of the Universal Charge is not oppressive and confiscatory since it is an exercise of the
police power of the State and it complies with the requirements of due process.23

On its part, respondent PECO argues that it is duty-bound to collect and remit the amount pertaining
to the Missionary Electrification and Environmental Fund components of the Universal Charge,
pursuant to Sec. 34 of the EPIRA and the Decisions in ERC Case Nos. 2002-194 and 2002-165.
Otherwise, PECO could be held liable under Sec. 4624 of the EPIRA, which imposes fines and
penalties for any violation of its provisions or its IRR.25

The Issues

The ultimate issues in the case at bar are:

1) Whether or not, the Universal Charge imposed under Sec. 34 of the EPIRA is a tax; and

2) Whether or not there is undue delegation of legislative power to tax on the part of the
ERC.26

Before we discuss the issues, the Court shall first deal with an obvious procedural lapse.

Petitioners filed before us an original action particularly denominated as a Complaint assailing the
constitutionality of Sec. 34 of the EPIRA imposing the Universal Charge and Rule 18 of the EPIRA's
IRR. No doubt, petitioners havelocus standi. They impugn the constitutionality of Sec. 34 of the
EPIRA because they sustained a direct injury as a result of the imposition of the Universal Charge
as reflected in their electric bills.

However, petitioners violated the doctrine of hierarchy of courts when they filed this "Complaint"
directly with us. Furthermore, the Complaint is bereft of any allegation of grave abuse of discretion
on the part of the ERC or any of the public respondents, in order for the Court to consider it as a
petition for certiorari or prohibition.

Article VIII, Section 5(1) and (2) of the 1987 Constitution27 categorically provides that:

SECTION 5. The Supreme Court shall have the following powers:

1. Exercise original jurisdiction over cases affecting ambassadors, other public ministers and
consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas
corpus.

2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the rules of
court may provide, final judgments and orders of lower courts in:

(a) All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question.

But this Court's jurisdiction to issue writs of certiorari, prohibition, mandamus, quo warranto,
and habeas corpus, while concurrent with that of the regional trial courts and the Court of Appeals,
does not give litigants unrestrained freedom of choice of forum from which to seek such relief.28 It
has long been established that this Court will not entertain direct resort to it unless the redress
desired cannot be obtained in the appropriate courts, or where exceptional and compelling
circumstances justify availment of a remedy within and call for the exercise of our primary
jurisdiction.29 This circumstance alone warrants the outright dismissal of the present action.

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This procedural infirmity notwithstanding, we opt to resolve the constitutional issue raised herein. We
are aware that if the constitutionality of Sec. 34 of the EPIRA is not resolved now, the issue will
certainly resurface in the near future, resulting in a repeat of this litigation, and probably involving the
same parties. In the public interest and to avoid unnecessary delay, this Court renders its ruling now.

The instant complaint is bereft of merit.

The First Issue

To resolve the first issue, it is necessary to distinguish the State’s power of taxation from the police
power.

The power to tax is an incident of sovereignty and is unlimited in its range, acknowledging in its very
nature no limits, so that security against its abuse is to be found only in the responsibility of the
legislature which imposes the tax on the constituency that is to pay it.30 It is based on the principle
that taxes are the lifeblood of the government, and their prompt and certain availability is an
imperious need.31 Thus, the theory behind the exercise of the power to tax emanates from necessity;
without taxes, government cannot fulfill its mandate of promoting the general welfare and well-being
of the people.32

On the other hand, police power is the power of the state to promote public welfare by restraining
and regulating the use of liberty and property.33 It is the most pervasive, the least limitable, and the
most demanding of the three fundamental powers of the State. The justification is found in the Latin
maxims salus populi est suprema lex (the welfare of the people is the supreme law) and sic utere tuo
ut alienum non laedas (so use your property as not to injure the property of others). As an inherent
attribute of sovereignty which virtually extends to all public needs, police power grants a wide
panoply of instruments through which the State, as parens patriae, gives effect to a host of its
regulatory powers.34 We have held that 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.35

The conservative and pivotal distinction between these two powers rests in the purpose for which
the charge is made. If generation of revenue is the primary purpose and regulation is merely
incidental, the imposition is a tax; but if regulation is the primary purpose, the fact that revenue is
incidentally raised does not make the imposition a tax.36

In exacting the assailed Universal Charge through Sec. 34 of the EPIRA, the State's police power,
particularly its regulatory dimension, is invoked. Such can be deduced from Sec. 34 which
enumerates the purposes for which the Universal Charge is imposed37 and which can be amply
discerned as regulatory in character. The EPIRA resonates such regulatory purposes, thus:

SECTION 2. Declaration of Policy. — It is hereby declared the policy of the State:

(a) To ensure and accelerate the total electrification of the country;

(b) To ensure the quality, reliability, security and affordability of the supply of electric power;

(c) To ensure transparent and reasonable prices of electricity in a regime of free and fair
competition and full public accountability to achieve greater operational and economic
efficiency and enhance the competitiveness of Philippine products in the global market;

(d) To enhance the inflow of private capital and broaden the ownership base of the power
generation, transmission and distribution sectors;

(e) To ensure fair and non-discriminatory treatment of public and private sector entities in the
process of restructuring the electric power industry;

(f) To protect the public interest as it is affected by the rates and services of electric utilities
and other providers of electric power;

(g) To assure socially and environmentally compatible energy sources and infrastructure;

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 (h) To promote the utilization of indigenous and new and renewable energy resources in
power generation in order to reduce dependence on imported energy;

(i) To provide for an orderly and transparent privatization of the assets and liabilities of the
National Power Corporation (NPC);

(j) To establish a strong and purely independent regulatory body and system to ensure
consumer protection and enhance the competitive operation of the electricity market; and

(k) To encourage the efficient use of energy and other modalities of demand side
management.

From the aforementioned purposes, it can be gleaned that the assailed Universal Charge is not a
tax, but an exaction in the exercise of the State's police power. Public welfare is surely promoted.

Moreover, it is a well-established doctrine that the taxing power may be used as an implement of
police power.38 In Valmonte v. Energy Regulatory Board, et al.39 and in Gaston v. Republic Planters
Bank,40 this Court held that the Oil Price Stabilization Fund (OPSF) and the Sugar Stabilization Fund
(SSF) were exactions made in the exercise of the police power. The doctrine was reiterated
in Osmeña v. Orbos41 with respect to the OPSF. Thus, we disagree with petitioners that the instant
case is different from the aforementioned cases. With the Universal Charge, a Special Trust Fund
(STF) is also created under the administration of PSALM.42 The STF has some notable
characteristics similar to the OPSF and the SSF, viz.:

1) In the implementation of stranded cost recovery, the ERC shall conduct a review to
determine whether there is under-recovery or over recovery and adjust (true-up) the level of
the stranded cost recovery charge. In case of an over-recovery, the ERC shall ensure that
any excess amount shall be remitted to the STF. A separate account shall be created for
these amounts which shall be held in trust for any future claims of distribution utilities for
stranded cost recovery. At the end of the stranded cost recovery period, any remaining
amount in this account shall be used to reduce the electricity rates to the end-users.43

2) With respect to the assailed Universal Charge, if the total amount collected for the same is
greater than the actual availments against it, the PSALM shall retain the balance within the
STF to pay for periods where a shortfall occurs.44

3) Upon expiration of the term of PSALM, the administration of the STF shall be transferred
to the DOF or any of the DOF attached agencies as designated by the DOF Secretary.45

The OSG is in point when it asseverates:

Evidently, the establishment and maintenance of the Special Trust Fund, under the last paragraph of
Section 34, R.A. No. 9136, is well within the pervasive and non-waivable power and responsibility of
the government to secure the physical and economic survival and well-being of the community, that
comprehensive sovereign authority we designate as the police power of the State.46

This feature of the Universal Charge further boosts the position that the same is an exaction
imposed primarily in pursuit of the State's police objectives. The STF reasonably serves and assures
the attainment and perpetuity of the purposes for which the Universal Charge is imposed, i.e., to
ensure the viability of the country's electric power industry.

The Second Issue

The principle of separation of powers ordains that each of the three branches of government has
exclusive cognizance of and is supreme in matters falling within its own constitutionally allocated
sphere. A logical corollary to the doctrine of separation of powers is the principle of non-delegation of
powers, as expressed in the Latin maxim potestas delegata non delegari potest (what has been
delegated cannot be delegated). This is based on the ethical principle that such 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. 47

In the face of the increasing complexity of modern life, delegation of legislative power to various
specialized administrative agencies is allowed as an exception to this principle.48 Given the volume

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and variety of interactions in today's society, it is doubtful if the legislature can promulgate laws that
will deal adequately with and respond promptly to the minutiae of everyday life. Hence, the need to
delegate to administrative bodies - the principal agencies tasked to execute laws in their specialized
fields - the authority to promulgate rules and regulations to implement a given statute and effectuate
its policies. All that is required for the valid exercise of this power of subordinate legislation is that the
regulation be germane to the objects and purposes of the law and that the regulation be not in
contradiction to, but in conformity with, the standards prescribed by the law. These requirements are
denominated as the completeness test and the sufficient standard test.

Under the first test, the law must be complete in all its terms and conditions when it leaves the
legislature such that when it reaches the delegate, the only thing he will have to do is to enforce it.
The second test mandates adequate guidelines or limitations in the law to determine the boundaries
of the delegate's authority and prevent the delegation from running riot.49

The Court finds that the EPIRA, read and appreciated in its entirety, in relation to Sec. 34 thereof, is
complete in all its essential terms and conditions, and that it contains sufficient standards.

Although Sec. 34 of the EPIRA merely provides that "within one (1) year from the effectivity thereof,
a Universal Charge to be determined, fixed and approved by the ERC, shall be imposed on all
electricity end-users," and therefore, does not state the specific amount to be paid as Universal
Charge, the amount nevertheless is made certain by the legislative parameters provided in the law
itself. For one, Sec. 43(b)(ii) of the EPIRA provides:

SECTION 43. Functions of the ERC. — The ERC shall promote competition, encourage market
development, ensure customer choice and penalize abuse of market power in the restructured
electricity industry. In appropriate cases, the ERC is authorized to issue cease and desist order after
due notice and hearing. Towards this end, it shall be responsible for the following key functions in
the restructured industry:

xxxx

(b) Within six (6) months from the effectivity of this Act, promulgate and enforce, in accordance with
law, a National Grid Code and a Distribution Code which shall include, but not limited to the
following:

xxxx

(ii) Financial capability standards for the generating companies, the TRANSCO, distribution utilities
and suppliers: Provided, That in the formulation of the financial capability standards, the nature and
function of the entity shall be considered: Provided, further, That such standards are set to ensure
that the electric power industry participants meet the minimum financial standards to protect the
public interest. Determine, fix, and approve, after due notice and public hearings the universal
charge, to be imposed on all electricity end-users pursuant to Section 34 hereof;

Moreover, contrary to the petitioners’ contention, the ERC does not enjoy a wide latitude of
discretion in the determination of the Universal Charge. Sec. 51(d) and (e) of the EPIRA50 clearly
provides:

SECTION 51. Powers. — The PSALM Corp. shall, in the performance of its functions and for the
attainment of its objective, have the following powers:

xxxx

(d) To calculate the amount of the stranded debts and stranded contract costs of NPC
which shall form the basis for ERC in the determination of the universal charge;

(e) To liquidate the NPC stranded contract costs, utilizing the proceeds from sales and other
property contributed to it, including the proceeds from the universal charge.

Thus, the law is complete and passes the first test for valid delegation of legislative power.

As to the second test, this Court had, in the past, accepted as sufficient standards the following:
"interest of law and order;"51 "adequate and efficient instruction;"52 "public interest;"53 "justice and

141
equity;"54 "public convenience and welfare;"55 "simplicity, economy and efficiency;"56 "standardization
and regulation of medical education;"57 and "fair and equitable employment practices."58 Provisions
of the EPIRA such as, among others, "to ensure the total electrification of the country and the
quality, reliability, security and affordability of the supply of electric power"59 and "watershed
rehabilitation and management"60 meet the requirements for valid delegation, as they provide the
limitations on the ERC’s power to formulate the IRR. These are sufficient standards.

It may be noted that this is not the first time that the ERC's conferred powers were challenged.
In Freedom from Debt Coalition v. Energy Regulatory Commission,61 the Court had occasion to say:

In determining the extent of powers possessed by the ERC, the provisions of the EPIRA must not be
read in separate parts. Rather, the law must be read in its entirety, because a statute is passed as a
whole, and is animated by one general purpose and intent. Its meaning cannot to be extracted from
any single part thereof but from a general consideration of the statute as a whole. Considering the
intent of Congress in enacting the EPIRA and reading the statute in its entirety, it is plain to see that
the law has expanded the jurisdiction of the regulatory body, the ERC in this case, to enable the
latter to implement the reforms sought to be accomplished by the EPIRA. When the legislators
decided to broaden the jurisdiction of the ERC, they did not intend to abolish or reduce the powers
already conferred upon ERC's predecessors. To sustain the view that the ERC possesses only the
powers and functions listed under Section 43 of the EPIRA is to frustrate the objectives of the law.

In his Concurring and Dissenting Opinion62 in the same case, then Associate Justice, now Chief
Justice, Reynato S. Puno described the immensity of police power in relation to the delegation of
powers to the ERC and its regulatory functions over electric power as a vital public utility, to wit:

Over the years, however, the range of police power was no longer limited to the preservation of
public health, safety and morals, which used to be the primary social interests in earlier times. Police
power now requires the State to "assume an affirmative duty to eliminate the excesses and injustices
that are the concomitants of an unrestrained industrial economy." Police power is now exerted "to
further the public welfare — a concept as vast as the good of society itself." Hence, "police power is
but another name for the governmental authority to further the welfare of society that is the basic end
of all government." When police power is delegated to administrative bodies with regulatory
functions, its exercise should be given a wide latitude. Police power takes on an even broader
dimension in developing countries such as ours, where the State must take a more active role in
balancing the many conflicting interests in society. The Questioned Order was issued by the ERC,
acting as an agent of the State in the exercise of police power. We should have exceptionally good
grounds to curtail its exercise. This approach is more compelling in the field of rate-regulation of
electric power rates. Electric power generation and distribution is a traditional instrument of
economic growth that affects not only a few but the entire nation. It is an important factor in
encouraging investment and promoting business. The engines of progress may come to a
screeching halt if the delivery of electric power is impaired. Billions of pesos would be lost as a result
of power outages or unreliable electric power services. The State thru the ERC should be able to
exercise its police power with great flexibility, when the need arises.

This was reiterated in National Association of Electricity Consumers for Reforms v. Energy
Regulatory Commission63 where the Court held that the ERC, as regulator, should have sufficient
power to respond in real time to changes wrought by multifarious factors affecting public utilities.

From the foregoing disquisitions, we therefore hold that there is no undue delegation of legislative
power to the ERC.

Petitioners failed to pursue in their Memorandum the contention in the Complaint that the imposition
of the Universal Charge on all end-users is oppressive and confiscatory, and amounts to taxation
without representation. Hence, such contention is deemed waived or abandoned per Resolution64 of
August 3, 2004.65 Moreover, the determination of whether or not a tax is excessive, oppressive or
confiscatory is an issue which essentially involves questions of fact, and thus, this Court is precluded
from reviewing the same.66

As a penultimate statement, it may be well to recall what this Court said of EPIRA:

One of the landmark pieces of legislation enacted by Congress in recent years is the EPIRA. It
established a new policy, legal structure and regulatory framework for the electric power industry.
The new thrust is to tap private capital for the expansion and improvement of the industry as the
large government debt and the highly capital-intensive character of the industry itself have long been

142
acknowledged as the critical constraints to the program. To attract private investment, largely
foreign, the jaded structure of the industry had to be addressed. While the generation and
transmission sectors were centralized and monopolistic, the distribution side was fragmented with
over 130 utilities, mostly small and uneconomic. The pervasive flaws have caused a low utilization of
existing generation capacity; extremely high and uncompetitive power rates; poor quality of service
to consumers; dismal to forgettable performance of the government power sector; high system
losses; and an inability to develop a clear strategy for overcoming these shortcomings.

Thus, the EPIRA provides a framework for the restructuring of the industry, including the
privatization of the assets of the National Power Corporation (NPC), the transition to a competitive
structure, and the delineation of the roles of various government agencies and the private entities.
The law ordains the division of the industry into four (4) distinct sectors, namely: generation,
transmission, distribution and supply.

Corollarily, the NPC generating plants have to privatized and its transmission business spun off and
privatized thereafter.67

Finally, every law has in its favor the presumption of constitutionality, and to justify its nullification,
there must be a clear and unequivocal breach of the Constitution and not one that is doubtful,
speculative, or argumentative.68Indubitably, petitioners failed to overcome this presumption in favor
of the EPIRA. We find no clear violation of the Constitution which would warrant a pronouncement
that Sec. 34 of the EPIRA and Rule 18 of its IRR are unconstitutional and void.

WHEREFORE, the instant case is hereby DISMISSED for lack of merit.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice

WE CONCUR:

FACTS:
On June 8, 2001 Congress enacted RA 9136 or the Electric Power Industry Act of
2001. Petitioners Romeo P. Gerochi and company assail the validity of Section 34 of
the EPIRA Law for being an undue delegation of the power of taxation. Section 34
provides for the imposition of a “Universal Charge” to all electricity end users after a
period of (1) one year after the effectively of the EPIRA Law. The universal charge to
be collected would serve as payment for government debts, missionary electrification,
equalization of taxes and royalties applied to renewable energy and imported energy,
environmental charge and for a charge to account for all forms of cross subsidies for a
period not exceeding three years. The universal charge shall be collected by the ERC
on a monthly basis from all end users and will then be managed by the PSALM Corp.
through the creation of a special trust fund.

ISSUE:
Whether or not there is an undue delegation of the power to tax on the part of the ERC

HELD:
No, the universal charge as provided for in section 34 is not a tax but an exaction of
the regulatory power (police power) of the state. The universal charge under section
34 is incidental to the regulatory duties of the ERC, hence the provision assailed is not
for generation of revenue and therefore it cannot be considered as tax, but an
execution of the states police power thru regulation.

Moreover, the amount collected is not made certain by the ERC, but by the legislative
parameters provided for in the law (RA 9136) itself, it therefore cannot be understood

143
as a rule solely coming from the ERC. The ERC in this case is only a specialized
administrative agency which is tasked of executing a subordinate legislation issued by
congress; which before execution must pass both the completeness test and the
sufficiency of standard test. The court in appreciating Section 34 of RA 9136 in its
entirety finds the said law and the assailed portions free from any constitutional defect
and thus deemed complete and sufficient in form.

EN BANC

G.R. No. 157013 July 10, 2003

ATTY. ROMULO B. MACALINTAL, petitioner,

vs.
COMMISSION ON ELECTIONS, HON. ALBERTO ROMULO, in his official capacity as Executive
Secretary, and HON. EMILIA T. BONCODIN, Secretary of the Department of Budget and
Management, respondents.

AUSTRIA-MARTINEZ, J.:

Before the Court is a petition for certiorari and prohibition filed by Romulo B. Macalintal, a member of
the Philippine Bar, seeking a declaration that certain provisions of Republic Act No. 9189 (The
Overseas Absentee Voting Act of 2003)1 suffer from constitutional infirmity. Claiming that he has
actual and material legal interest in the subject matter of this case in seeing to it that public funds are
properly and lawfully used and appropriated, petitioner filed the instant petition as a taxpayer and as
a lawyer.

The Court upholds the right of petitioner to file the present petition.

R.A. No. 9189, entitled, "An Act Providing for A System of Overseas Absentee Voting by Qualified
Citizens of the Philippines Abroad, Appropriating Funds Therefor, and for Other Purposes,"
appropriates funds under Section 29 thereof which provides that a supplemental budget on the
General Appropriations Act of the year of its enactment into law shall provide for the necessary
amount to carry out its provisions. Taxpayers, such as herein petitioner, have the right to restrain
officials from wasting public funds through the enforcement of an unconstitutional statute.2 The Court
has held that they may assail the validity of a law appropriating public funds3 because expenditure of
public funds by an officer of the State for the purpose of executing an unconstitutional act constitutes
a misapplication of such funds.4

The challenged provision of law involves a public right that affects a great number of citizens. The
Court has adopted the policy of taking jurisdiction over cases whenever the petitioner has seriously
and convincingly presented an issue of transcendental significance to the Filipino people. This has
been explicitly pronounced in Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs.
Tan,5 where the Court held:

Objections to taxpayers’ suit for lack of sufficient personality standing, or interest are,
however, in the main procedural matters. Considering the importance to the public of the
cases at bar, and in keeping with the Court’s duty, under the 1987 Constitution, to determine
whether or not the other branches of government have kept themselves within the limits of
the Constitution and the laws and that they have not abused the discretion given to them, the
Court has brushed aside technicalities of procedure and has taken cognizance of these
petitions.6

144
Indeed, in this case, the Court may set aside procedural rules as the constitutional right of suffrage
of a considerable number of Filipinos is involved.

The question of propriety of the instant petition which may appear to be visited by the vice of
prematurity as there are no ongoing proceedings in any tribunal, board or before a government
official exercising judicial, quasi-judicial or ministerial functions as required by Rule 65 of the Rules
of Court, dims in light of the importance of the constitutional issues raised by the petitioner. In
Tañada vs. Angara,7 the Court held:

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of the
legislative branch is seriously alleged to have infringed the Constitution, it becomes not only
the right but in fact the duty of the judiciary to settle the dispute. "The question thus posed is
judicial rather than political. The duty (to adjudicate) remains to assure that the supremacy of
the Constitution is upheld." Once a "controversy as to the application or interpretation of
constitutional provision is raised before this Court (as in the instant case), it becomes a legal
issue which the Court is bound by constitutional mandate to decide."

In another case of paramount impact to the Filipino people, it has been expressed that it is illogical to
await the adverse consequences of the law in order to consider the controversy actual and ripe for
judicial resolution.8 In yet another case, the Court said that:

. . . despite the inhibitions pressing upon the Court when confronted with constitutional
issues, it will not hesitate to declare a law or act invalid when it is convinced that this must be
done. In arriving at this conclusion, its only criterion will be the Constitution and God as its
conscience gives it in the light to probe its meaning and discover its purpose. Personal
motives and political considerations are irrelevancies that cannot influence its decisions.
Blandishment is as ineffectual as intimidation, for all the awesome power of the Congress
and Executive, the Court will not hesitate "to make the hammer fall heavily," where the acts
of these departments, or of any official, betray the people’s will as expressed in the
Constitution . . .9

The need to consider the constitutional issues raised before the Court is further buttressed by the
fact that it is now more than fifteen years since the ratification of the 1987 Constitution requiring
Congress to provide a system for absentee voting by qualified Filipinos abroad. Thus, strong
reasons of public policy demand that the Court resolves the instant petition10 and determine whether
Congress has acted within the limits of the Constitution or if it had gravely abused the discretion
entrusted to it.11

The petitioner raises three principal questions:

A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of voters who are
immigrants or permanent residents in other countries by their mere act of executing an
affidavit expressing their intention to return to the Philippines, violate the residency
requirement in Section 1 of Article V of the Constitution?

B. Does Section 18.5 of the same law empowering the COMELEC to proclaim the winning
candidates for national offices and party list representatives including the President and the
Vice-President violate the constitutional mandate under Section 4, Article VII of the
Constitution that the winning candidates for President and the Vice-President shall be
proclaimed as winners by Congress?

C. May Congress, through the Joint Congressional Oversight Committee created in Section
25 of Rep. Act No. 9189, exercise the power to review, revise, amend, and approve the
Implementing Rules and Regulations that the Commission on Elections shall promulgate
without violating the independence of the COMELEC under Section 1, Article IX-A of the
Constitution?

The Court will resolve the questions in seriatim.

A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V of the 1987 Constitution
of the Republic of the Philippines?

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Section 5(d) provides:

Sec. 5. Disqualifications. – The following shall be disqualified from voting under this Act:

.........

d) An immigrant or a permanent resident who is recognized as such in the host country,

unless he/she executes, upon registration, an affidavit prepared for the purpose by the
Commission declaring that he/she shall resume actual physical permanent residence in the
Philippines not later than three (3) years from approval of his/her registration under this Act.
Such affidavit shall also state that he/she has not applied for citizenship in another country.
Failure to return shall be cause for the removal of the name of the immigrant or permanent
resident from the National Registry of Absentee Voters and his/her permanent
disqualification to vote in absentia.

Petitioner posits that Section 5(d) is unconstitutional because it violates Section 1, Article V of the
1987 Constitution which requires that the voter must be a resident in the Philippines for at least one
year and in the place where he proposes to vote for at least six months immediately preceding an
election. Petitioner cites the ruling of the Court in Caasi vs. Court of Appeals12 to support his claim. In
that case, the Court held that a "green card" holder immigrant to the United States is deemed to
have abandoned his domicile and residence in the Philippines.

Petitioner further argues that Section 1, Article V of the Constitution does not allow provisional
registration or a promise by a voter to perform a condition to be qualified to vote in a political
exercise;13 that the legislature should not be allowed to circumvent the requirement of the
Constitution on the right of suffrage by providing a condition thereon which in effect amends or alters
the aforesaid residence requirement to qualify a Filipino abroad to vote.14He claims that the right of
suffrage should not be granted to anyone who, on the date of the election, does not possess the
qualifications provided for by Section 1, Article V of the Constitution.

Respondent COMELEC refrained from commenting on this issue.15

In compliance with the Resolution of the Court, the Solicitor General filed his comment for all public
respondents. He contraposes that the constitutional challenge to Section 5(d) must fail because of
the absence of clear and unmistakable showing that said provision of law is repugnant to the
Constitution. He stresses: All laws are presumed to be constitutional; by the doctrine of separation of
powers, a department of government owes a becoming respect for the acts of the other two
departments; all laws are presumed to have adhered to constitutional limitations; the legislature
intended to enact a valid, sensible, and just law.

In addition, the Solicitor General points out that Section 1, Article V of the Constitution is a verbatim
reproduction of those provided for in the 1935 and the 1973 Constitutions. Thus, he cites Co vs.
Electoral Tribunal of the House of Representatives16 wherein the Court held that the term "residence"
has been understood to be synonymous with "domicile" under both Constitutions. He further argues
that a person can have only one "domicile" but he can have two residences, one permanent (the
domicile) and the other temporary;17 and that the definition and meaning given to the term residence
likewise applies to absentee voters. Invoking Romualdez-Marcos vs. COMELEC18 which reiterates
the Court’s ruling in Faypon vs. Quirino,19 the Solicitor General maintains that Filipinos who are
immigrants or permanent residents abroad may have in fact never abandoned their Philippine
domicile.20

Taking issue with the petitioner’s contention that "green card" holders are considered to have
abandoned their Philippine domicile, the Solicitor General suggests that the Court may have to
discard its ruling in Caasi vs. Court of Appeals21 in so far as it relates to immigrants and permanent
residents in foreign countries who have executed and submitted their affidavits conformably with
Section 5(d) of R.A. No. 9189. He maintains that through the execution of the requisite affidavits, the
Congress of the Philippines with the concurrence of the President of the Republic had in fact given
these immigrants and permanent residents the opportunity, pursuant to Section 2, Article V of the
Constitution, to manifest that they had in fact never abandoned their Philippine domicile; that
indubitably, they would have formally and categorically expressed the requisite intentions, i.e.,
"animus manendi" and "animus revertendi;" that Filipino immigrants and permanent residents abroad
possess the unquestionable right to exercise the right of suffrage under Section 1, Article V of the
Constitution upon approval of their registration, conformably with R.A. No. 9189.22

146
The seed of the present controversy is the interpretation that is given to the phrase, "qualified
citizens of the Philippines abroad" as it appears in R.A. No. 9189, to wit:

SEC. 2. Declaration of Policy. – It is the prime duty of the State to provide a system of honest and
orderly overseas absentee voting that upholds the secrecy and sanctity of the ballot. Towards this
end, the State ensures equal opportunity to all qualified citizens of the Philippines abroad in the
exercise of this fundamental right.

SEC. 3. Definition of Terms. – For purposes of this Act:

a) "Absentee Voting" refers to the process by which qualified citizens of the

Philippines abroad, exercise their right to vote;

. . . (Emphasis supplied)

f) "Overseas Absentee Voter" refers to a citizen of the Philippines who is qualified

to register and vote under this Act, not otherwise disqualified by law, who is abroad
on the day of elections. (Emphasis supplied)

SEC. 4. Coverage. – All citizens of the Philippines abroad, who are not otherwise
disqualified by law, at least eighteen (18) years of age on the day of elections, may vote for
president, vice-president, senators and party-list representatives. (Emphasis supplied)

in relation to Sections 1 and 2, Article V of the Constitution which read:

SEC. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are at least eighteen years of age, and who shall have resided in the
Philippines for at least one year and in the place wherein they propose to vote for at least six
months immediately preceding the election. No literacy, property, or other substantive
requirement shall be imposed on the exercise of suffrage.

SEC. 2. The Congress shall provide a system for securing the secrecy and sanctity of the
ballot as well as a system for absentee voting by qualified Filipinos abroad.

. . . . . . . . . (Emphasis supplied)

Section 1, Article V of the Constitution specifically provides that suffrage may be exercised by (1) all
citizens of the Philippines, (2) not otherwise disqualified by law, (3) at least eighteen years of age,
(4) who are residents in the Philippines for at least one year and in the place where they propose to
vote for at least six months immediately preceding the election. Under Section 5(d) of R.A. No. 9189,
one of those disqualified from voting is an immigrant or permanent resident who is recognized as
such in the host country unless he/she executes an affidavit declaring that he/she shall resume
actual physical permanent residence in the Philippines not later than three years from approval of
his/her registration under said Act.

Petitioner questions the rightness of the mere act of execution of an affidavit to qualify the Filipinos
abroad who are immigrants or permanent residents, to vote. He focuses solely on Section 1, Article
V of the Constitution in ascribing constitutional infirmity to Section 5(d) of R.A. No. 9189, totally
ignoring the provisions of Section 2 empowering Congress to provide a system for absentee voting
by qualified Filipinos abroad.

A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give the impression that it
contravenes Section 1, Article V of the Constitution. Filipino immigrants and permanent residents
overseas are perceived as having left and abandoned the Philippines to live permanently in their
host countries and therefore, a provision in the law enfranchising those who do not possess the
residency requirement of the Constitution by the mere act of executing an affidavit expressing their
intent to return to the Philippines within a given period, risks a declaration of unconstitutionality.
However, the risk is more apparent than real.

The Constitution is the fundamental and paramount law of the nation to which all other laws must
conform and in accordance with which all private rights must be determined and all public authority
administered.23 Laws that do not conform to the Constitution shall be stricken down for being
unconstitutional.

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Generally, however, all laws are presumed to be constitutional. In Peralta vs. COMELEC, the Court
said:

. . . An act of the legislature, approved by the executive, is presumed to be within

constitutional limitations. The responsibility of upholding the Constitution rests not on the
courts alone but on the legislature as well. The question of the validity of every statute is first
determined by the legislative department of the government itself.24

Thus, presumption of constitutionality of a law must be overcome convincingly:

. . . To declare a law unconstitutional, the repugnancy of that law to the Constitution must be
clear and unequivocal, for even if a law is aimed at the attainment of some public good, no
infringement of constitutional rights is allowed. To strike down a law there must be a clear
showing that what the fundamental law condemns or prohibits, the statute allows it to be
done.25

As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it behooves the Court
to take a holistic view of the pertinent provisions of both the Constitution and R.A. No. 9189. It is a
basic rule in constitutional construction that the Constitution should be construed as a whole.
In Chiongbian vs. De Leon,26 the Court held that a constitutional provision should function to the full
extent of its substance and its terms, not by itself alone, but in conjunction with all other provisions of
that great document. Constitutional provisions are mandatory in character unless, either by express
statement or by necessary implication, a different intention is manifest.27 The intent of the
Constitution may be drawn primarily from the language of the document itself. Should it be
ambiguous, the Court may consider the intent of its framers through their debates in the
constitutional convention.28

R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of Section 2, Article V
of the Constitution that Congress shall provide a system for voting by qualified Filipinos abroad. It
must be stressed that Section 2 does not provide for the parameters of the exercise of legislative
authority in enacting said law. Hence, in the absence of restrictions, Congress is presumed to have
duly exercised its function as defined in Article VI (The Legislative Department) of the Constitution.

To put matters in their right perspective, it is necessary to dwell first on the significance of absentee
voting. The concept of absentee voting is relatively new. It is viewed thus:

The method of absentee voting has been said to be completely separable and distinct from
the regular system of voting, and to be a new and different manner of voting from that
previously known, and an exception to the customary and usual manner of voting. The right
of absentee and disabled voters to cast their ballots at an election is purely statutory;
absentee voting was unknown to, and not recognized at, the common law.

Absentee voting is an outgrowth of modern social and economic conditions devised to

accommodate those engaged in military or civil life whose duties make it impracticable for
them to attend their polling places on the day of election, and the privilege of absentee
voting may flow from constitutional provisions or be conferred by statutes, existing in
some jurisdictions, which provide in varying terms for the casting and reception of ballots by
soldiers and sailors or other qualified voters absent on election day from the district or
precinct of their residence.

Such statutes are regarded as conferring a privilege and not a right, or an absolute
right. When the legislature chooses to grant the right by statute, it must operate with
equality among all the class to which it is granted; but statutes of this nature may be
limited in their application to particular types of elections. The statutes should be
construed in the light of any constitutional provisions affecting registration and
elections, and with due regard to their texts prior to amendment and to predecessor statutes
and the decisions thereunder; they should also be construed in the light of the
circumstances under which they were enacted; and so as to carry out the objects thereof,
if this can be done without doing violence to their provisions and mandates. Further, in
passing on statutes regulating absentee voting, the court should look to the whole
and every part of the election laws, the intent of the entire plan, and reasons and spirit
of their adoption, and try to give effect to every portion thereof.29 (Emphasis supplied)

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Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same time, both a
resident and an absentee.30 However, under our election laws and the countless pronouncements of
the Court pertaining to elections, an absentee remains attached to his residence in the Philippines
as residence is considered synonymous with domicile.

In Romualdez-Marcos,31 the Court enunciated:

Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the fulfillment of
civil obligations, the domicile of natural persons is their place of habitual residence." In Ong
vs. Republic, this court took the concept of domicile to mean an individual’s "permanent
home," "a place to which, whenever absent for business or for pleasure, one intends to
return, and depends on facts and circumstances in the sense that they disclose intent."
Based on the foregoing, domicile includes the twin elements of "the fact of residing or
physical presence in a fixed place" and animus manendi, or the intention of returning there
permanently.

Residence, in its ordinary conception, implies the factual relationship of an individual to a

certain place. It is the physical presence of a person in a given area, community or country.
The essential distinction between residence and domicile in law is that residence involves
the intent to leave when the purpose for which the resident has taken up his abode ends.
One may seek a place for purposes such as pleasure, business, or health. If a person’s
intent be to remain, it becomes his domicile; if his intent is to leave as soon as his purpose is
established it is residence. It is thus, quite perfectly normal for an individual to have different
residences in various places. However, a person can only have a single domicile, unless, for
various reasons, he successfully abandons his domicile in favor of another domicile of
choice. In Uytengsu vs. Republic, we laid this distinction quite clearly:

"There is a difference between domicile and residence. ‘Residence’ is used to

indicate a place of abode, whether permanent or temporary; ‘domicile’ denotes a
fixed permanent residence to which, when absent, one has the intention of returning.
A man may have a residence in one place and a domicile in another. Residence is
not domicile, but domicile is residence coupled with the intention to remain for an
unlimited time. A man can have but one domicile for the same purpose at any time,
but he may have numerous places of residence. His place of residence is generally
his place of domicile, but it is not by any means necessarily so since no length of
residence without intention of remaining will constitute domicile."

For political purposes the concepts of residence and domicile are dictated by the peculiar
criteria of political laws. As these concepts have evolved in our election law, what has
clearly and unequivocally emerged is the fact that residence for election purposes is
used synonymously with domicile.32 (Emphasis supplied)

Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this country, the
framers of the Constitution considered the circumstances that impelled them to require Congress to
establish a system for overseas absentee voting, thus:

MR. OPLE. With respect to Section 1, it is not clear whether the right of suffrage, which here
has a residential restriction, is not denied to citizens temporarily residing or working abroad.
Based on the statistics of several government agencies, there ought to be about two million
such Filipinos at this time. Commissioner Bernas had earlier pointed out that these
provisions are really lifted from the two previous Constitutions of 1935 and 1973, with the
exception of the last paragraph. They could not therefore have foreseen at that time the
phenomenon now described as the Filipino labor force explosion overseas.

According to government data, there are now about 600,000 contract workers and
employees, and although the major portions of these expatriate communities of workers are
to be found in the Middle East, they are scattered in 177 countries in the world.

In a previous hearing of the Committee on Constitutional Commissions and Agencies, the

Chairman of the Commission on Elections, Ramon Felipe, said that there was no
insuperable obstacle to making effective the right of suffrage for Filipinos overseas. Those
who have adhered to their Filipino citizenship notwithstanding strong temptations are
exposed to embrace a more convenient foreign citizenship. And those who on their own or
under pressure of economic necessity here, find that they have to detach themselves from

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 their families to work in other countries with definite tenures of employment. Many of them
are on contract employment for one, two, or three years. They have no intention of changing
their residence on a permanent basis, but are technically disqualified from exercising the
right of suffrage in their countries of destination by the residential requirement in Section 1
which says:

Suffrage shall be exercised by all citizens of the Philippines not otherwise disqualified
by law, who are eighteen years of age or over, and who shall have resided in the
Philippines for at least one year and in the place wherein they propose to vote for at
least six months preceding the election.

I, therefore, ask the Committee whether at the proper time they might entertain an
amendment that will make this exercise of the right to vote abroad for Filipino citizens an
effective, rather than merely a nominal right under this proposed Constitution.

FR. BERNAS. Certainly, the Committee will consider that. But more than just saying that, I
would like to make a comment on the meaning of "residence" in the Constitution because I
think it is a concept that has been discussed in various decisions of the Supreme Court,
particularly in the case of Faypon vs. Quirino, a 1954 case which dealt precisely with the
meaning of "residence" in the Election Law. Allow me to quote:

A citizen may leave the place of his birth to look for greener pastures, as the saying
goes, to improve his lot and that, of course, includes study in other places, practice of
his avocation, reengaging in business. When an election is to be held, the citizen
who left his birthplace to improve his lot may decide to return to his native town, to
cast his ballot, but for professional or business reasons, or for any other reason, he
may not absent himself from the place of his professional or business activities.

So, they are here registered as voters as he has the qualifications to be one, and is
not willing to give up or lose the opportunity to choose the officials who are to run the
government especially in national elections. Despite such registration, the animus
revertendi to his home, to his domicile or residence of origin has not forsaken him.

This may be the explanation why the registration of a voter in a place other than his residence of
origin has not been deemed sufficient to consider abandonment or loss of such residence of origin.

In other words, "residence" in this provision refers to two residence qualifications:

"residence" in the Philippines and "residence" in the place where he will vote. As far as
residence in the Philippines is concerned, the word "residence" means domicile, but as far as
residence in the place where he will actually cast his ballot is concerned, the meaning seems
to be different. He could have a domicile somewhere else and yet he is a resident of a place
for six months and he is allowed to vote there. So that there may be serious constitutional
obstacles to absentee voting, unless the vote of the person who is absent is a vote
which will be considered as cast in the place of his domicile.

MR. OPLE. Thank you for citing the jurisprudence.

It gives me scant comfort thinking of about two million Filipinos who should enjoy the right of
suffrage, at least a substantial segment of these overseas Filipino communities. The
Committee, of course, is aware that when this Article of the Constitution explicitly and
unequivocally extends the right of effective suffrage to Filipinos abroad, this will call for a
logistical exercise of global proportions. In effect, this will require budgetary and
administrative commitments on the part of the Philippine government, mainly through the
COMELEC and the Ministry of Foreign Affairs, and perhaps, a more extensive elaboration of
this mechanism that will be put in place to make effective the right to vote.
Therefore, seeking shelter in some wise jurisprudence of the past may not be
sufficient to meet the demands of the right of suffrage for Filipinos abroad that I have
mentioned. But I want to thank the Committee for saying that an amendment to this effect
may be entertained at the proper time. . . . . . . . . . 33 (Emphasis supplied)

Thus, the Constitutional Commission recognized the fact that while millions of Filipinos reside
abroad principally for economic reasons and hence they contribute in no small measure to the
economic uplift of this country, their voices are marginal insofar as the choice of this country’s
leaders is concerned.

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The Constitutional Commission realized that under the laws then existing and considering the
novelty of the system of absentee voting in this jurisdiction, vesting overseas Filipinos with the right
to vote would spawn constitutional problems especially because the Constitution itself provides for
the residency requirement of voters:

MR. REGALADO. Before I act on that, may I inquire from Commissioner Monsod if the term
"absentee voting" also includes transient voting; meaning, those who are, let us say,
studying in Manila need not go back to their places of registration, for instance, in Mindanao,
to cast their votes.

MR. MONSOD. I think our provision is for absentee voting by Filipinos abroad.

MR. REGALADO. How about those people who cannot go back to the places where they are
registered?

MR. MONSOD. Under the present Election Code, there are provisions for allowing students
and military people who are temporarily in another place to register and vote. I believe that
those situations can be covered by the Omnibus Election Code. The reason we want
absentee voting to be in the Constitution as a mandate to the legislature is that there
could be inconsistency on the residence rule if it is just a question of legislation by
Congress. So, by allowing it and saying that this is possible, then legislation can take
care of the rest.34 (Emphasis supplied)

Thus, Section 2, Article V of the Constitution came into being to remove any doubt as to the
inapplicability of the residency requirement in Section 1. It is precisely to avoid any problems that
could impede the implementation of its pursuit to enfranchise the largest number of qualified
Filipinos who are not in the Philippines that the Constitutional Commission explicitly mandated
Congress to provide a system for overseas absentee voting.

The discussion of the Constitutional Commission on the effect of the residency requirement
prescribed by Section 1, Article V of the Constitution on the proposed system of absentee voting for
qualified Filipinos abroad is enlightening:

MR. SUAREZ. May I just be recognized for a clarification. There are certain qualifications for
the exercise of the right of suffrage like having resided in the Philippines for at least one year
and in the place where they propose to vote for at least six months preceding the elections.
What is the effect of these mandatory requirements on the matter of the exercise of the right
of suffrage by the absentee voters like Filipinos abroad?

THE PRESIDENT. Would Commissioner Monsod care to answer?

MR. MONSOD. I believe the answer was already given by Commissioner Bernas, that the
domicile requirements as well as the qualifications and disqualifications would be the same.

THE PRESIDENT. Are we leaving it to the legislature to devise the system?

FR. BERNAS. I think there is a very legitimate problem raised there.

THE PRESIDENT. Yes.

MR. BENGZON. I believe Commissioner Suarez is clarified.

FR. BERNAS. But I think it should be further clarified with regard to the residence
requirement or the place where they vote in practice; the understanding is that it is flexible.
For instance, one might be a resident of Naga or domiciled therein, but he satisfies the
requirement of residence in Manila, so he is able to vote in Manila.

MR. TINGSON. Madam President, may I then suggest to the Committee to change the word
"Filipinos" to QUALIFIED FILIPINO VOTERS. Instead of "VOTING BY FILIPINOS
ABROAD," it should be QUALIFIED FILIPINO VOTERS. If the Committee wants QUALIFIED
VOTERS LIVING ABROAD, would that not satisfy the requirement?

THE PRESIDENT. What does Commissioner Monsod say?

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 MR. MONSOD. Madam President, I think I would accept the phrase "QUALIFIED FILIPINOS
ABROAD" because "QUALIFIED" would assume that he has the qualifications and none of
the disqualifications to vote.

MR. TINGSON. That is right. So does the Committee accept?

FR. BERNAS. "QUALIFIED FILIPINOS ABROAD"?

THE PRESIDENT. Does the Committee accept the amendment?

MR. REGALADO. Madam President.

THE PRESIDENT. Commissioner Regalado is recognized.

MR. REGALADO. When Commissioner Bengzon asked me to read my proposed

amendment, I specifically stated that the National Assembly shall prescribe a system which
will enable qualified citizens, temporarily absent from the Philippines, to vote. According to
Commissioner Monsod, the use of the phrase "absentee voting" already took that into
account as its meaning. That is referring to qualified Filipino citizens temporarily abroad.

MR. MONSOD. Yes, we accepted that. I would like to say that with respect to registration
we will leave it up to the legislative assembly, for example, to require where the
registration is. If it is, say, members of the diplomatic corps who may be continuously
abroad for a long time, perhaps, there can be a system of registration in the
embassies. However, we do not like to preempt the legislative assembly.

THE PRESIDENT. Just to clarify, Commissioner Monsod’s amendment is only to provide a

system.

MR. MONSOD. Yes.

THE PRESIDENT. The Commissioner is not stating here that he wants new qualifications for
these absentee voters.

MR. MONSOD. That is right. They must have the qualifications and none of the
disqualifications.

THE PRESIDENT. It is just to devise a system by which they can vote.

MR. MONSOD. That is right, Madam President.35 (Emphasis supplied)

Clearly therefrom, the intent of the Constitutional Commission is to entrust to Congress the
responsibility of devising a system of absentee voting. The qualifications of voters as stated in
Section 1 shall remain except for the residency requirement. This is in fact the reason why the
Constitutional Commission opted for the term qualified Filipinos abroad with respect to the system of
absentee voting that Congress should draw up. As stressed by Commissioner Monsod, by the use of
the adjective qualified with respect to Filipinos abroad, the assumption is that they have the
"qualifications and none of the disqualifications to vote." In fine-tuning the provision on absentee
voting, the Constitutional Commission discussed how the system should work:

MR. SUAREZ. For clarification purposes, we just want to state for the record that in the case
of qualified Filipino citizens residing abroad and exercising their right of suffrage, they can
cast their votes for the candidates in the place where they were registered to vote in the
Philippines. So as to avoid any complications, for example, if they are registered in Angeles
City, they could not vote for a mayor in Naga City.

In other words, if that qualified voter is registered in Angeles City, then he can vote only for
the local and national candidates in Angeles City. I just want to make that clear for the
record.

MR. REGALADO. Madam President.

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 THE PRESIDENT. What does Commissioner Regalado say?

MR. REGALADO. I just want to make a note on the statement of Commissioner Suarez that
this envisions Filipinos residing abroad. The understanding in the amendment is that the
Filipino is temporarily abroad. He may not be actually residing abroad; he may just be there
on a business trip. It just so happens that the day before the elections he has to fly to the
United States, so he could not cast his vote. He is temporarily abroad, but not residing there.
He stays in a hotel for two days and comes back. This is not limited only to Filipinos
temporarily residing abroad. But as long as he is temporarily abroad on the date of the
elections, then he can fall within the prescription of Congress in that situation.

MR. SUAREZ. I thank the Commissioner for his further clarification. Precisely, we need this
clarification on record.

MR. MONSOD. Madam President, to clarify what we mean by "temporarily abroad," it

need not be on very short trips. One can be abroad on a treaty traders visa. Therefore,
when we talk about registration, it is possible that his residence is in Angeles and he would
be able to vote for the candidates in Angeles, but Congress or the Assembly may provide
the procedure for registration, like listing one’s name, in a registry list in the embassy
abroad. That is still possible under the system.

FR. BERNAS. Madam President, just one clarification if Commissioner Monsod agrees with
this.

Suppose we have a situation of a child of a diplomatic officer who reaches the voting age
while living abroad and he has never registered here. Where will he register? Will he be a
registered voter of a certain locality in the Philippines?

MR. MONSOD. Yes, it is possible that the system will enable that child to comply with the
registration requirements in an embassy in the United States and his name is then entered in
the official registration book in Angeles City, for instance.

FR. BERNAS. In other words, he is not a registered voter of Los Angeles, but a registered
voter of a locality here.

MR. MONSOD. That is right. He does not have to come home to the Philippines to comply
with the registration procedure here.

FR. BERNAS. So, he does not have to come home.

MR. BENGZON. Madam President, the Floor Leader wishes to inquire if there are more
clarifications needed from the body.

Also, the Floor Leader is happy to announce that there are no more registered
Commissioners to propose amendments. So I move that we close the period of
amendments.36 (Emphasis supplied)

It is clear from these discussions of the members of the Constitutional Commission that they
intended to enfranchise as much as possible all Filipino citizens abroad who have not abandoned
their domicile of origin. The Commission even intended to extend to young Filipinos who reach
voting age abroad whose parents’ domicile of origin is in the Philippines, and consider them qualified
as voters for the first time.

It is in pursuance of that intention that the Commission provided for Section 2 immediately after the
residency requirement of Section 1. By the doctrine of necessary implication in statutory
construction, which may be applied in construing constitutional provisions,37 the strategic location of
Section 2 indicates that the Constitutional Commission provided for an exception to the actual
residency requirement of Section 1 with respect to qualified Filipinos abroad. The same Commission
has in effect declared that qualified Filipinos who are not in the Philippines may be allowed to vote
even though they do not satisfy the residency requirement in Section 1, Article V of the Constitution.

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That Section 2 of Article V of the Constitution is an exception to the residency requirement found in
Section 1 of the same Article was in fact the subject of debate when Senate Bill No. 2104, which
became R.A. No. 9189, was deliberated upon on the Senate floor, thus:

Senator Arroyo. Mr. President, this bill should be looked into in relation to the constitutional
provisions. I think the sponsor and I would agree that the Constitution is supreme in any
statute that we may enact.

Let me read Section 1, Article V, of the Constitution entitled, "Suffrage." It says:

Section 1. Suffrage may be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are at least eighteen years of age, and who shall have
resided in the Philippines for at least one year and in the place wherein they propose
to vote for at least six months immediately preceding the election.

Now, Mr. President, the Constitution says, "who shall have resided in the Philippines." They
are permanent immigrants. They have changed residence so they are barred under the
Constitution. This is why I asked whether this committee amendment which in fact does not
alter the original text of the bill will have any effect on this?

Senator Angara. Good question, Mr. President. And this has been asked in various fora.
This is in compliance with the Constitution. One, the interpretation here of "residence" is
synonymous with "domicile."

As the gentleman and I know, Mr. President, "domicile" is the intent to return to one’s
home. And the fact that a Filipino may have been physically absent from the
Philippines and may be physically a resident of the United States, for example, but
has a clear intent to return to the Philippines, will make him qualified as a resident of
the Philippines under this law.

This is consistent, Mr. President, with the constitutional mandate that we – that Congress –
must provide a franchise to overseas Filipinos.

If we read the Constitution and the suffrage principle literally as demanding physical
presence, then there is no way we can provide for offshore voting to our
offshore kababayan, Mr. President.

Senator Arroyo. Mr. President, when the Constitution says, in Section 2 of Article V, it
reads: "The Congress shall provide a system for securing the secrecy and sanctity of the
ballot as well as a system for absentee voting by qualified Filipinos abroad."

The key to this whole exercise, Mr. President, is "qualified." In other words, anything
that we may do or say in granting our compatriots abroad must be anchored on the
proposition that they are qualified. Absent the qualification, they cannot vote. And
"residents" (sic) is a qualification.

I will lose votes here from permanent residents so-called "green-card holders", but the
Constitution is the Constitution. We cannot compromise on this. The Senate cannot be a
party to something that would affect or impair the Constitution.

Look at what the Constitution says – "In the place wherein they propose to vote for at least
six months immediately preceding the election."

Mr. President, all of us here have run (sic) for office.

I live in Makati. My neighbor is Pateros where Senator Cayetano lives. We are separated
only by a creek. But one who votes in Makati cannot vote in Pateros unless he resides in
Pateros for six months. That is how restrictive our Constitution is. I am not talking even about
the Election Code. I am talking about the Constitution.

As I have said, if a voter in Makati would want to vote in Pateros, yes, he may do so. But he
must do so, make the transfer six months before the election, otherwise, he is not qualified to
vote.

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 That is why I am raising this point because I think we have a fundamental difference here.

Senator Angara. It is a good point to raise, Mr. President. But it is a point already well-
debated even in the constitutional commission of 1986. And the reason Section 2 of
Article V was placed immediately after the six-month/one-year residency requirement
is to demonstrate unmistakably that Section 2 which authorizes absentee voting is an
exception to the six-month/one-year residency requirement. That is the first principle,
Mr. President, that one must remember.

The second reason, Mr. President, is that under our jurisprudence – and I think this is so
well-entrenched that one need not argue about it – "residency" has been interpreted as
synonymous with "domicile."

But the third more practical reason, Mr. President, is, if we follow the interpretation of
the gentleman, then it is legally and constitutionally impossible to give a franchise to
vote to overseas Filipinos who do not physically live in the country, which is quite
ridiculous because that is exactly the whole point of this exercise – to enfranchise
them and empower them to vote.38 (Emphasis supplied)

Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the absentee voting process, to
wit:

SEC. 4. Coverage. – All citizens of the Philippines abroad, who are not otherwise disqualified
by law, at least eighteen (18) years of age on the day of elections, may vote for president,
vice-president, senators and party-list representatives.

which does not require physical residency in the Philippines; and Section 5 of the assailed law which
enumerates those who are disqualified, to wit:

SEC. 5. Disqualifications. – The following shall be disqualified from voting under this Act:

a) Those who have lost their Filipino citizenship in accordance with Philippine laws;

b) Those who have expressly renounced their Philippine citizenship and who have pledged
allegiance to a foreign country;

c) Those who have committed and are convicted in a final judgment by a court or tribunal of
an offense punishable by imprisonment of not less than one (1) year, including those who
have committed and been found guilty of Disloyalty as defined under Article 137 of the
Revised Penal Code, such disability not having been removed by plenary pardon or
amnesty: Provided, however, That any person disqualified to vote under this subsection shall
automatically acquire the right to vote upon expiration of five (5) years after service of
sentence; Provided, further, That the Commission may take cognizance of final judgments
issued by foreign courts or tribunals only on the basis of reciprocity and subject to the
formalities and processes prescribed by the Rules of Court on execution of judgments;

d) An immigrant or a permanent resident who is recognized as such in the host country,

unless he/she executes, upon registration, an affidavit prepared for the purpose by the
Commission declaring that he/she shall resume actual physical permanent residence in the
Philippines not later than three (3) years from approval of his/her registration under this Act.
Such affidavit shall also state that he/she has not applied for citizenship in another country.
Failure to return shall be cause for the removal of the name of the immigrant or permanent
resident from the National Registry of Absentee Voters and his/her permanent
disqualification to vote in absentia.

e) Any citizen of the Philippines abroad previously declared insane or incompetent by

competent authority in the Philippines or abroad, as verified by the Philippine embassies,
consulates or foreign service establishments concerned, unless such competent authority
subsequently certifies that such person is no longer insane or incompetent.

As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies an immigrant or
permanent resident who is "recognized as such in the host country" because immigration or
permanent residence in another country implies renunciation of one’s residence in his country of

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origin. However, same Section allows an immigrant and permanent resident abroad to register as
voter for as long as he/she executes an affidavit to show that he/she has not abandoned his domicile
in pursuance of the constitutional intent expressed in Sections 1 and 2 of Article V that "all citizens of
the Philippines not otherwise disqualified by law" must be entitled to exercise the right of suffrage
and, that Congress must establish a system for absentee voting; for otherwise, if actual, physical
residence in the Philippines is required, there is no sense for the framers of the Constitution to
mandate Congress to establish a system for absentee voting.

Contrary to the claim of petitioner, the execution of the affidavit itself is not the enabling or
enfranchising act. The affidavit required in Section 5(d) is not only proof of the intention of the
immigrant or permanent resident to go back and resume residency in the Philippines, but more
significantly, it serves as an explicit expression that he had not in fact abandoned his domicile of
origin. Thus, it is not correct to say that the execution of the affidavit under Section 5(d) violates the
Constitution that proscribes "provisional registration or a promise by a voter to perform a condition to
be qualified to vote in a political exercise."

To repeat, the affidavit is required of immigrants and permanent residents abroad because by their
status in their host countries, they are presumed to have relinquished their intent to return to this
country; thus, without the affidavit, the presumption of abandonment of Philippine domicile shall
remain.

Further perusal of the transcripts of the Senate proceedings discloses another reason why the
Senate required the execution of said affidavit. It wanted the affiant to exercise the option to return or
to express his intention to return to his domicile of origin and not to preempt that choice by
legislation. Thus:

Senator Villar. Yes, we are going back.

It states that: "For Filipino immigrants and those who have acquired permanent resident
status abroad," a requirement for the registration is the submission of "a Sworn Declaration
of Intent to Return duly sworn before any Philippine embassy or consulate official authorized
to administer oath…"

Mr. President, may we know the rationale of this provision? Is the purpose of this Sworn
Declaration to include only those who have the intention of returning to be qualified to
exercise the right of suffrage? What if the Filipino immigrant has no purpose of returning? Is
he automatically disbarred from exercising this right to suffrage?

Senator Angara. The rationale for this, Mr. President, is that we want to be expansive
and all-inclusive in this law. That as long as he is a Filipino, no matter whether he is a
green-card holder in the U.S. or not, he will be authorized to vote. But if he is already a
green-card holder, that means he has acquired permanent residency in the United
States, then he must indicate an intention to return. This is what makes for the
definition of "domicile." And to acquire the vote, we thought that we would require the
immigrants and the green-card holders . . . Mr. President, the three administration senators
are leaving, maybe we may ask for a vote [Laughter].

Senator Villar. For a merienda, Mr. President.

Senator Angara. Mr. President, going back to the business at hand. The rationale for the
requirement that an immigrant or a green-card holder should file an affidavit that he will go
back to the Philippines is that, if he is already an immigrant or a green-card holder, that
means he may not return to the country any more and that contradicts the definition of
"domicile" under the law.

But what we are trying to do here, Mr. President, is really provide the choice to the
voter. The voter, after consulting his lawyer or after deliberation within the family, may
decide "No, I think we are risking our permanent status in the United States if we file an
affidavit that we want to go back." But we want to give him the opportunity to make that
decision. We do not want to make that decision for him. 39 (Emphasis supplied)

The jurisprudential declaration in Caasi vs. Court of Appeals that green card holders are disqualified
to run for any elective office finds no application to the present case because the Caasi case did not,

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for obvious reasons, consider the absentee voting rights of Filipinos who are immigrants and
permanent residents in their host countries.

In the advent of The Overseas Absentee Voting Act of 2003 or R.A. 9189, they may still be
considered as a "qualified citizen of the Philippines abroad" upon fulfillment of the requirements of
registration under the new law for the purpose of exercising their right of suffrage.

It must be emphasized that Section 5(d) does not only require an affidavit or a promise to "resume
actual physical permanent residence in the Philippines not later than three years from approval of
his/her registration," the Filipinos abroad must also declare that they have not applied for citizenship
in another country. Thus, they must return to the Philippines; otherwise, their failure to return "shall
be cause for the removal" of their names "from the National Registry of Absentee Voters and his/her
permanent disqualification to vote in absentia."

Thus, Congress crafted a process of registration by which a Filipino voter permanently residing
abroad who is at least eighteen years old, not otherwise disqualified by law, who has not
relinquished Philippine citizenship and who has not actually abandoned his/her intentions to return to
his/her domicile of origin, the Philippines, is allowed to register and vote in the Philippine embassy,
consulate or other foreign service establishments of the place which has jurisdiction over the country
where he/she has indicated his/her address for purposes of the elections, while providing for
safeguards to a clean election.

Thus, Section 11 of R.A. No. 9189 provides:

SEC. 11. Procedure for Application to Vote in Absentia. –

11.1. Every qualified citizen of the Philippines abroad whose application for registration has
been approved, including those previously registered under Republic Act No. 8189, shall, in
every national election, file with the officer of the embassy, consulate or other foreign service
establishment authorized by the Commission, a sworn written application to vote in a form
prescribed by the Commission. The authorized officer of such embassy, consulate or other
foreign service establishment shall transmit to the Commission the said application to vote
within five (5) days from receipt thereof. The application form shall be accomplished in
triplicate and submitted together with the photocopy of his/her overseas absentee voter
certificate of registration.

11.2. Every application to vote in absentia may be done personally at, or by mail to, the
embassy, consulate or foreign service establishment, which has jurisdiction over the country
where he/she has indicated his/her address for purposes of the elections.

11.3. Consular and diplomatic services rendered in connection with the overseas absentee
voting processes shall be made available at no cost to the overseas absentee voter.

Contrary to petitioner’s claim that Section 5(d) circumvents the Constitution, Congress enacted the
law prescribing a system of overseas absentee voting in compliance with the constitutional mandate.
Such mandate expressly requires that Congress provide a system of absentee voting that
necessarily presupposes that the "qualified citizen of the Philippines abroad" is not physically
present in the country. The provisions of Sections 5(d) and 11 are components of the system of
overseas absentee voting established by R.A. No. 9189. The qualified Filipino abroad who executed
the affidavit is deemed to have retained his domicile in the Philippines. He is presumed not to have
lost his domicile by his physical absence from this country. His having become an immigrant or
permanent resident of his host country does not necessarily imply an abandonment of his intention
to return to his domicile of origin, the Philippines. Therefore, under the law, he must be given the
opportunity to express that he has not actually abandoned his domicile in the Philippines by
executing the affidavit required by Sections 5(d) and 8(c) of the law.

Petitioner’s speculative apprehension that the implementation of Section 5(d) would affect the
credibility of the elections is insignificant as what is important is to ensure that all those who possess
the qualifications to vote on the date of the election are given the opportunity and permitted to freely
do so. The COMELEC and the Department of Foreign Affairs have enough resources and talents to
ensure the integrity and credibility of any election conducted pursuant to R.A. No. 9189.

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As to the eventuality that the Filipino abroad would renege on his undertaking to return to the
Philippines, the penalty of perpetual disenfranchisement provided for by Section 5(d) would suffice to
serve as deterrence to non-compliance with his/her undertaking under the affidavit.

Petitioner argues that should a sizable number of "immigrants" renege on their promise to return, the
result of the elections would be affected and could even be a ground to contest the proclamation of
the winning candidates and cause further confusion and doubt on the integrity of the results of the
election. Indeed, the probability that after an immigrant has exercised the right to vote, he shall opt to
remain in his host country beyond the third year from the execution of the affidavit, is not farfetched.
However, it is not for this Court to determine the wisdom of a legislative exercise. As expressed
in Tañada vs. Tuvera,40 the Court is not called upon to rule on the wisdom of the law or to repeal it or
modify it if we find it impractical.

Congress itself was conscious of said probability and in fact, it has addressed the expected problem.
Section 5(d) itself provides for a deterrence which is that the Filipino who fails to return as promised
stands to lose his right of suffrage. Under Section 9, should a registered overseas absentee voter fail
to vote for two consecutive national elections, his name may be ordered removed from the National
Registry of Overseas Absentee Voters.

Other serious legal questions that may be raised would be: what happens to the votes cast by the
qualified voters abroad who were not able to return within three years as promised? What is the
effect on the votes cast by the non-returnees in favor of the winning candidates? The votes cast by
qualified Filipinos abroad who failed to return within three years shall not be invalidated because
they were qualified to vote on the date of the elections, but their failure to return shall be cause for
the removal of the names of the immigrants or permanent residents from the National Registry of
Absentee Voters and their permanent disqualification to vote in absentia.

In fine, considering the underlying intent of the Constitution, the Court does not find Section 5(d) of
R.A. No. 9189 as constitutionally defective.

B. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same Act in contravention of
Section 4, Article VII of the Constitution?

Section 4 of R.A. No. 9189 provides that the overseas absentee voter may vote for president, vice-
president, senators and party-list representatives.

Section 18.5 of the same Act provides:

SEC. 18. On-Site Counting and Canvassing. –

.........

18. 5 The canvass of votes shall not cause the delay of the proclamation of a winning
candidate if the outcome of the election will not be affected by the results thereof.
Notwithstanding the foregoing, the Commission is empowered to order the proclamation
of winning candidates despite the fact that the scheduled election has not taken place in a
particular country or countries, if the holding of elections therein has been rendered
impossible by events, factors and circumstances peculiar to such country or countries, in
which events, factors and circumstances are beyond the control or influence of the
Commission. (Emphasis supplied)

Petitioner claims that the provision of Section 18.5 of R.A. No. 9189 empowering the COMELEC to
order the proclamation of winning candidates insofar as it affects the canvass of votes and
proclamation of winning candidates for president and vice-president, is unconstitutional because it
violates the following provisions of paragraph 4, Section 4 of Article VII of the Constitution:

SEC. 4 . . .

The returns of every election for President and Vice-President, duly certified by the board of
canvassers of each province or city, shall be transmitted to the Congress, directed to the
President of the Senate. Upon receipt of the certificates of canvass, the President of the
Senate shall, not later than thirty days after the day of the election, open all the certificates in
the presence of the Senate and the House of Representatives in joint public session, and the

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 Congress, upon determination of the authenticity and due execution thereof in the manner
provided by law, canvass the votes.

The person having the highest number of votes shall be proclaimed elected, but in case two
or more shall have an equal and highest number of votes, one of them shall forthwith be
chosen by the vote of a majority of all the Members of both Houses of the Congress, voting
separately.

The Congress shall promulgate its rules for the canvassing of the certificates.

...

which gives to Congress the duty to canvass the votes and proclaim the winning candidates for
president and vice-president.

The Solicitor General asserts that this provision must be harmonized with paragraph 4, Section 4,
Article VII of the Constitution and should be taken to mean that COMELEC can only proclaim the
winning Senators and party-list representatives but not the President and Vice-President.41

Respondent COMELEC has no comment on the matter.

Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of R.A. No. 9189 is far too
sweeping that it necessarily includes the proclamation of the winning candidates for the presidency
and the vice-presidency.

Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Article VII of the Constitution
only insofar as said Section totally disregarded the authority given to Congress by the Constitution to
proclaim the winning candidates for the positions of president and vice-president.

In addition, the Court notes that Section 18.4 of the law, to wit:

18.4. . . . Immediately upon the completion of the canvass, the chairman of the Special
Board of Canvassers shall transmit via facsimile, electronic mail, or any other means of
transmission equally safe and reliable the Certificates of Canvass and the Statements of
Votes to the Commission, . . . [Emphasis supplied]

clashes with paragraph 4, Section 4, Article VII of the Constitution which provides that the returns of
every election for President and Vice-President shall be certified by the board of canvassers to
Congress.

Congress could not have allowed the COMELEC to usurp a power that constitutionally belongs to it
or, as aptly stated by petitioner, to encroach "on the power of Congress to canvass the votes for
president and vice-president and the power to proclaim the winners for the said positions." The
provisions of the Constitution as the fundamental law of the land should be read as part of The
Overseas Absentee Voting Act of 2003 and hence, the canvassing of the votes and the proclamation
of the winning candidates for president and vice-president for the entire nation must remain in the
hands of Congress.

C. Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1, Article IX-A of the
Constitution?

Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate Article IX-A (Common Provisions)
of the Constitution, to wit:

Section 1. The Constitutional Commissions, which shall be independent, are the Civil
Service Commission, the Commission on Elections, and the Commission on Audit.
(Emphasis supplied)

He submits that the creation of the Joint Congressional Oversight Committee with the power to
review, revise, amend and approve the Implementing Rules and Regulations promulgated by the
COMELEC, R.A. No. 9189 intrudes into the independence of the COMELEC which, as a
constitutional body, is not under the control of either the executive or legislative departments of
government; that only the COMELEC itself can promulgate rules and regulations which may be

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changed or revised only by the majority of its members; and that should the rules promulgated by
the COMELEC violate any law, it is the Court that has the power to review the same via the petition
of any interested party, including the legislators.

It is only on this question that respondent COMELEC submitted its Comment. It agrees with the
petitioner that Sections 19 and 25 of R.A. No. 9189 are unconstitutional. Like the petitioner,
respondent COMELEC anchors its claim of unconstitutionality of said Sections upon Section 1,
Article IX-A of the Constitution providing for the independence of the constitutional commissions
such as the COMELEC. It asserts that its power to formulate rules and regulations has been upheld
in Gallardo vs. Tabamo, Jr.42 where this Court held that the power of the COMELEC to formulate
rules and regulations is implicit in its power to implement regulations under Section 2(1) of Article IX-
C43 of the Constitution. COMELEC joins the petitioner in asserting that as an independent
constitutional body, it may not be subject to interference by any government instrumentality and that
only this Court may review COMELEC rules and only in cases of grave abuse of discretion.

The COMELEC adds, however, that another provision, vis-à-vis its rule-making power, to wit:

SEC. 17. Voting by Mail. –

17.1. For the May, 2004 elections, the Commission shall authorize voting by mail in not more
than three (3) countries, subject to the approval of the Congressional Oversight
Committee. Voting by mail may be allowed in countries that satisfy the following conditions:

a) Where the mailing system is fairly well-developed and secure to prevent occasion for
fraud;

b) Where there exists a technically established identification system that would preclude
multiple or proxy voting; and

c) Where the system of reception and custody of mailed ballots in the embassies, consulates
and other foreign service establishments concerned are adequate and well-secured.

Thereafter, voting by mail in any country shall be allowed only upon review and
approval of the Joint Congressional Oversight Committee . . . . . . . . . (Emphasis
supplied)

is likewise unconstitutional as it violates Section 1, Article IX-A mandating the independence of

constitutional commissions.

The Solicitor General takes exception to his prefatory statement that the constitutional challenge
must fail and agrees with the petitioner that Sections 19 and 25 are invalid and unconstitutional on
the ground that there is nothing in Article VI of the Constitution on Legislative Department that would
as much as imply that Congress has concurrent power to enforce and administer election laws with
the COMELEC; and by the principles of exclusio unius est exclusio alterius and expressum facit
cessare tacitum, the constitutionally enumerated powers of Congress circumscribe its authority to
the exclusion of all others.

The parties are unanimous in claiming that Sections 19, 25 and portions of Section 17.1 are
unconstitutional. Thus, there is no actual issue forged on this question raised by petitioner.

However, the Court finds it expedient to expound on the role of Congress through the Joint
Congressional Oversight Committee (JCOC) vis-à-vis the independence of the COMELEC, as a
constitutional body.

R.A. No. 9189 created the JCOC, as follows:

SEC. 25. Joint Congressional Oversight Committee. – A Joint Congressional Oversight

Committee is hereby created, composed of the Chairman of the Senate Committee on
Constitutional Amendments, Revision of Codes and Laws, and seven (7) other Senators
designated by the Senate President, and the Chairman of the House Committee on Suffrage
and Electoral Reforms, and seven (7) other Members of the House of Representatives
designated by the Speaker of the House of Representatives: Provided, That, of the seven (7)

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 members to be designated by each House of Congress, four (4) should come from the
majority and the remaining three (3) from the minority.

The Joint Congressional Oversight Committee shall have the power to monitor and
evaluate the implementation of this Act. It shall review, revise, amend and approve the
Implementing Rules and Regulations promulgated by the Commission. (Emphasis
supplied)

SEC. 19. Authority of the Commission to Promulgate Rules. – The Commission shall issue
the necessary rules and regulations to effectively implement the provisions of this Act within
sixty (60) days from the effectivity of this Act. The Implementing Rules and Regulations
shall be submitted to the Joint Congressional Oversight Committee created by virtue
of this Act for prior approval.

. . . . . . . . . (Emphasis supplied)

Composed of Senators and Members of the House of Representatives, the Joint Congressional
Oversight Committee (JCOC) is a purely legislative body. There is no question that the authority of
Congress to "monitor and evaluate the implementation" of R.A. No. 9189 is geared towards possible
amendments or revision of the law itself and thus, may be performed in aid of its legislation.

However, aside from its monitoring and evaluation functions, R.A. No. 9189 gives to the JCOC the
following functions: (a) to "review, revise, amend and approve the Implementing Rules and
Regulations" (IRR) promulgated by the COMELEC [Sections 25 and 19]; and (b) subject to the
approval of the JCOC [Section 17.1], the voting by mail in not more than three countries for the May
2004 elections and in any country determined by COMELEC.

The ambit of legislative power under Article VI of the Constitution is circumscribed by other
constitutional provisions. One such provision is Section 1 of Article IX-A of the 1987 Constitution
ordaining that constitutional commissions such as the COMELEC shall be "independent."

Interpreting Section 1, Article X of the 1935 Constitution providing that there shall be an independent
COMELEC, the Court has held that "[w]hatever may be the nature of the functions of the
Commission on Elections, the fact is that the framers of the Constitution wanted it to be independent
from the other departments of the Government."44In an earlier case, the Court elucidated:

The Commission on Elections is a constitutional body. It is intended to play a distinct and

important part in our scheme of government. In the discharge of its functions, it should not be
hampered with restrictions that would be fully warranted in the case of a less responsible
organization. The Commission may err, so may this court also. It should be allowed
considerable latitude in devising means and methods that will insure the accomplishment of
the great objective for which it was created – free, orderly and honest elections. We may not
agree fully with its choice of means, but unless these are clearly illegal or constitute gross
abuse of discretion, this court should not interfere. Politics is a practical matter, and political
questions must be dealt with realistically – not from the standpoint of pure theory. The
Commission on Elections, because of its fact-finding facilities, its contacts with political
strategists, and its knowledge derived from actual experience in dealing with political
controversies, is in a peculiarly advantageous position to decide complex political
questions.45 (Emphasis supplied)

The Court has no general powers of supervision over COMELEC which is an independent body
"except those specifically granted by the Constitution," that is, to review its decisions, orders and
rulings.46 In the same vein, it is not correct to hold that because of its recognized extensive legislative
power to enact election laws, Congress may intrude into the independence of the COMELEC by
exercising supervisory powers over its rule-making authority.

By virtue of Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to "issue the
necessary rules and regulations to effectively implement the provisions of this Act within sixty days
from the effectivity of this Act." This provision of law follows the usual procedure in drafting rules and
regulations to implement a law – the legislature grants an administrative agency the authority to craft
the rules and regulations implementing the law it has enacted, in recognition of the administrative
expertise of that agency in its particular field of operation.47 Once a law is enacted and approved, the
legislative function is deemed accomplished and complete. The legislative function may spring back

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to Congress relative to the same law only if that body deems it proper to review, amend and revise
the law, but certainly not to approve, review, revise and amend the IRR of the COMELEC.

By vesting itself with the powers to approve, review, amend, and revise the IRR for The Overseas
Absentee Voting Act of 2003, Congress went beyond the scope of its constitutional authority.
Congress trampled upon the constitutional mandate of independence of the COMELEC. Under such
a situation, the Court is left with no option but to withdraw from its usual reticence in declaring a
provision of law unconstitutional.

The second sentence of the first paragraph of Section 19 stating that "[t]he Implementing Rules and
Regulations shall be submitted to the Joint Congressional Oversight Committee created by virtue of
this Act for prior approval," and the second sentence of the second paragraph of Section 25 stating
that "[i]t shall review, revise, amend and approve the Implementing Rules and Regulations
promulgated by the Commission," whereby Congress, in both provisions, arrogates unto itself a
function not specifically vested by the Constitution, should be stricken out of the subject statute for
constitutional infirmity. Both provisions brazenly violate the mandate on the independence of the
COMELEC.

Similarly, the phrase, "subject to the approval of the Congressional Oversight Committee" in the first
sentence of Section 17.1 which empowers the Commission to authorize voting by mail in not more
than three countries for the May, 2004 elections; and the phrase, "only upon review and approval of
the Joint Congressional Oversight Committee" found in the second paragraph of the same section
are unconstitutional as they require review and approval of voting by mail in any country after the
2004 elections. Congress may not confer upon itself the authority to approve or disapprove the
countries wherein voting by mail shall be allowed, as determined by the COMELEC pursuant to the
conditions provided for in Section 17.1 of R.A. No. 9189.48 Otherwise, Congress would overstep the
bounds of its constitutional mandate and intrude into the independence of the COMELEC.

During the deliberations, all the members of the Court agreed to adopt the separate opinion of
Justice Reynato S. Puno as part of the ponencia on the unconstitutionality of Sections 17.1, 19 and
25 of R.A. No. 9189 insofar as they relate to the creation of and the powers given to the Joint
Congressional Oversight Committee.

WHEREFORE, the petition is partly GRANTED. The following portions of R.A. No. 9189 are
declared VOIDfor being UNCONSTITUTIONAL:

a) The phrase in the first sentence of the first paragraph of Section 17.1, to wit: "subject to
the approval of the Joint Congressional Oversight Committee;"

b) The portion of the last paragraph of Section 17.1, to wit: "only upon review and approval
of the Joint Congressional Oversight Committee;"

c) The second sentence of the first paragraph of Section 19, to wit: "The Implementing
Rules and Regulations shall be submitted to the Joint Congressional Oversight
Committee created by virtue of this Act for prior approval;" and

d) The second sentence in the second paragraph of Section 25, to wit: "It shall review,
revise, amend and approve the Implementing Rules and Regulations promulgated by
the Commission" of the same law;

for being repugnant to Section 1, Article IX-A of the Constitution mandating the independence of
constitutional commission, such as COMELEC.

The constitutionality of Section 18.5 of R.A. No. 9189 is UPHELD with respect only to the authority
given to the COMELEC to proclaim the winning candidates for the Senators and party-list
representatives but not as to the power to canvass the votes and proclaim the winning candidates
for President and Vice-President which is lodged with Congress under Section 4, Article VII of the
Constitution.

The constitutionality of Section 5(d) is UPHELD.

Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said law continues to be in full
force and effect.

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 SO ORDERED.

Davide, Jr., C.J., and Corona, JJ., concur.

Quisumbing, J., on leave.
Tinga, J., no part.
Bellosillo, and Carpio, JJ., see concurring opinion.
Puno, Ynares-Santiago, and Callejo, Sr., JJ., see concurring and dissenting opinion.
Sandoval-Gutierrez, J., see concurring and dissenting opinion. On official leave.
Vitug, and Panganiban, JJ., see separate opinion.
Carpio-Morales, and Azcuna, JJ., see separate (concurring) opinion.

Political Law – Election Laws – Absentee Voters Act – Proclamation of Winners in a

National Elections
Romulo Macalintal, as a lawyer and a taxpayer, questions the validity of the Overseas
Absentee Voting Act of 2003 (R.A. 9189). He questions the validity of the said act on the
following grounds, among others:

1. That the provision that a Filipino already considered an immigrant abroad can be allowed to
participate in absentee voting provided he executes an affidavit stating his intent to return to
the Philippines is void because it dispenses of the requirement that a voter must be a
resident of the Philippines for at least one year and in the place where he intends to vote for
at least 6 months immediately preceding the election;
2. That the provision allowing the Commission on Elections (COMELEC) to proclaim winning
candidates insofar as it affects the canvass of votes and proclamation of winning candidates
for president and vice-president, is unconstitutional because it violates the Constitution for it
is Congress which is empowered to do so.

ISSUE: Whether or not Macalintal’s arguments are correct.

HELD: No.

1. There can be no absentee voting if the absentee voters are required to physically reside in
the Philippines within the period required for non-absentee voters. Further, as understood in
election laws, domicile and resident are interchangeably used. Hence, one is a resident of
his domicile (insofar as election laws is concerned). The domicile is the place where one
has the intention to return to. Thus, an immigrant who executes an affidavit stating his intent
to return to the Philippines is considered a resident of the Philippines for purposes of being
qualified as a voter (absentee voter to be exact). If the immigrant does not execute the
affidavit then he is not qualified as an absentee voter.
2. The said provision should be harmonized. It could not be the intention of Congress to allow
COMELEC to include the proclamation of the winners in the vice-presidential and
presidential race. To interpret it that way would mean that Congress allowed COMELEC to
usurp its power. The canvassing and proclamation of the presidential and vice presidential
elections is still lodged in Congress and was in no way transferred to the COMELEC by
virtue of RA 9189.

FACTS:

This is a petition for certiorari and prohibition filed by Romulo B. Macalintal, a member of the
Philippine Bar, seeking a declaration that certain provisions of Republic Act No. 9189 (The
Overseas Absentee Voting Act of 2003) suffer from constitutional infirmity. Claiming that he
has actual and material legal interest in the subject matter of this case in seeing to it that public
funds are properly and lawfully used and appropriated, petitioner filed the instant petition as a
taxpayer and as a lawyer.

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Petitioner posits that Section 5(d) is unconstitutional because it violates Section 1, Article V of
the 1987 Constitution which requires that the voter must be a resident in the Philippines for at
least one year and in the place where he proposes to vote for at least six months immediately
preceding an election. Petitioner cites the ruling of the Court in Caasi vs. Court of Appeals to
support his claim. In that case, the Court held that a green card holder immigrant to the United
States is deemed to have abandoned his domicile and residence in the Philippines.

Petitioner further argues that Section 1, Article V of the Constitution does not allow provisional
registration or a promise by a voter to perform a condition to be qualified to vote in a political
exercise; that the legislature should not be allowed to circumvent the requirement of the
Constitution on the right of suffrage by providing a condition thereon which in effect amends or
alters the aforesaid residence requirement to qualify a Filipino abroad to vote. He claims that the
right of suffrage should not be granted to anyone who, on the date of the election, does not
possess the qualifications provided for by Section 1, Article V of the Constitution.

ISSUE:

Is RA 9189 [Overseas Absentee Voting Act of 2003], valid & constitutional?

RULING:

Contrary to petitioner’s claim that Section 5(d) circumvents the Constitution, Congress enacted
the law prescribing a system of overseas absentee voting in compliance with the constitutional
mandate. Such mandate expressly requires that Congress provide a system of absentee voting
that necessarily presupposes that the “qualified citizen of the Philippines abroad” is not
physically present in the country.

The petition was partly GRANTED. The following portions of R.A. No. 9189 are declared
VOID for being UNCONSTITUTIONAL:

17. a) The phrase in the first sentence of the first paragraph of Section 17.1, to wit: “subject to
the approval of the Joint Congressional Oversight Committee;”
18. b) The portion of the last paragraph of Section 17.1, to wit: “only upon review and
approval of the Joint Congressional Oversight Committee;”
19. c) The second sentence of the first paragraph of Section 19, to wit: “The Implementing
Rules and Regulations shall be submitted to the Joint Congressional Oversight Committee
created by virtue of this Act for prior approval;” and
20. d) The second sentence in the second paragraph of Section 25, to wit: “It shall review,
revise, amend and approve the Implementing Rules and Regulations promulgated by the
Commission” of the same law;

for being repugnant to Section 1, Article IX-A of the Constitution mandating the independence
of constitutional commission, such as COMELEC.

Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said law continues to be in
full force and effect.

A.M. No. 03-8-22-SC. September 16, 2003

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RE: EM NO. 03-010 - ORDER OF THE FIRST DIVISION OF THE COMMISSION ON
ELECTIONS DATED AUGUST 15, 2003.

EN BANC

Gentlemen:

Quoted hereunder, for your information, is a resolution of the Court En Banc dated 16 SEP 2003

A.M. No. 03-8-22 SC. (Re: EM No. 03-010 Order of the First Division of the Commission on
Elections dated August 15, 2003.)

On 10 September 2003, the First Division bf the Commission Elections (COMELEC)

promulgated a Resolution in EM Nos. 03-010 & 03-011,[1]cralaw which disposed thus:

"WHEREFORE, for the reasons given, this Commission may be

persuaded to pronounce the existence of sufficient grounds to declare
respondents in contempt of this Commission and accordingly impose the proper
penalty. Nevertheless, we are constitutionally enjoined from doing so without
respondents first going through the process of impeachment.
"As prayed for by Petitioner Rodolfo T. AIbano III and Intervenor Rodrigo
B. Gutang, let [a] copy of this resolution be forwarded [to] the House of
Representatives.
"However, in the light of the foregoing discussion, we find the filing of the
present petitions premature because of the authoritative doctrine that
impeachable officers must first be removed from office by impeachment before
any punitive measure may be imposed against them. Consequently, the actions
being untimely filed, as explained by the Supreme Court, the Petitions for
Indirect Contempt deserve nothing less than outright dismissal. Let the above-
captioned cases be, as they are hereby ordered, DISMISSED.
"SO ORDERED."

On 26 August 2003, prior to the promulgation of the above Resolution of the COMELEC's First
Division, this Court en banc issued its own Resolution, quoted in full as follows:

"Acting on the Order of the Commission on Elections dated August 15,

2003 signed by Presiding Commissioner Rufino SB. Javier of the Comelec First
Division addressed to Chief Justice Hilario G. Davide Jr. and Associate Justices
Josue N. Bellosillo, Reynato S. Puno and Artemio V. Panganiban, sending them
copies of Petition's for Indirect Contempt filed against them in the Commission
by the Malay Democrats of the Philippines (signed by Ma. Linda Olaguer
Montayre), Rodolfo T. Albano III and Rodrigo B. Gutang, and advising them that
they may, if they so desire, send to (the) Commission within a reasonable time
their observation or comment on the afore-enumerated pleadings to help the
Commission in intelligently disposing of them, the Court RESOLVED (1) to treat
it as an administrative matter cognizable by the Courts en banc as it affects the
entire Court, and (2.) to inform the Commission that the subject matter of the
Petitions involves a, review of the final decision and/or official actions of this
Court in G.R. Nos. 147589 and 147613, June 26, 2001 (Ang Bagong Bayani-
OFW Labor Party vs. commission on Elections, et al.), a review that is,
unquestionably beyond the jurisdiction of the Commission. Under the
Constitution and pursuant to the principle of separation of powers, decisions,
orders and official actions of the Supreme Court and its Members cannot be
reviewed, passed upon, modified, much less reversed by any department,
agency or branch of government, whether directly or indirectly under any guise
whatsoever. Accordingly, the Petitions for Indirect Contempt deserve nothing
less than outright dismissal.
"SO ORDERED"

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While this Court does not fault the COMELEC's First Division for outrightly DISMISSING the
Petitions for Contempt, it cannot let the "reasons given" therefor pass unchallenged and
uncorrected. These reasons were proffered without jurisdiction or with grave abuse of
discretion, in clear contravention of the Constitution and the above-quoted Resolution.

In its 38-page Resolution, the COMELEC First Division basically insinuates two points as
follows:

(1)������� that it possesses the power to hold in contempt the

Chief Justice and some Associate Justices for their participation
and vote in decisions and orders of this Court, which allegedly
interfered with or impeded the proceedings of the Commission;
and
(2)������� that it had in fact determined the "existence of
sufficient grounds to declare respondents in contempt of [the]
Commission and to 'impose the proper penalty," were it not for the
fact that the Justices were impeachable officers who "must first be
removed from office by impeachment before any punitive
measure may be imposed against them."

These ratiocinations constitute plain and simple legal balderdash.

FIRST, as already stated in our foregoing 26 August 2003 Resolution, the Commission has no.
jurisdiction to hold the Court or any of its Members in contempt for any, decision, order or official
action they issue. Initially, the COMELEC's First Division and its three signatory Commissioners
openly conceded that, indeed, they did not have any power to review, alter or reverse such act.
Yet, it did pass upon them in its Resolution and concluded thereafter that the "June 6, 2001
Decision, Order of October 8, 2002, and Resolution dated February 18, 2003 restrained the
COMELEC from performing its constitutional duties and prerogatives." That restraint allegedly
constituted contempt of the Commission.

There is no need to explain in detail or to defend the aforesaid three issuances of this Court in
G.R. Nos. 147589 and 147613, (Ang Bagong Bayani-OFW Labor Party v. Commission on
Elections), because they speak for themselves. Suffice it to say that they were its official actions
promulgated in appropriate certiorari proceedings, in, which the Commission's previous
Decision on the matter was, REVERSED. That the Supreme Court has the authority to pass
upon, modify or reverse the quasi-judicial actions of the COMELEC is UNQUESTIONED.

Verily, under Article VIII, Section 1 of the Constitution "[j]udicial power includes the duty of the
courts of justice x x x 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." More specifically, Article. IX, Section 7 of the Constitution grants the Supreme
Court the authority to pass upon on certiorari "any decision, order or ruling" of the COMELEC
and other constitutional commissions.

Giving flesh to these constitutional provisions is Rule 64 of the Rules of Court which provides
that" "[a] judgment or final order or resolution of the Commission on Elections x x x may be
brought x x x to .the Supreme Court on certiorari under Rule 65." On the other hand, Rule 65
states: "When any tribunal, board or officer exercising judicial or quasi-judicial functions has
acted Without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting
to lack or excess of jurisdiction, x x x" the Supreme Court may annul or modify the proceedings
of such tribunal, board or officer, and grant such incidental reliefs as law and justice may
require. Finally, Rules 135 and 136 list the inherent powers of courts and judicial officers to
ensure that their decisions or orders are: carried out, including the power of meting out
contempt.

True, the COMELEC -- along with the Commission on Audit, the Commission on Civil Service
and the, Ombudsman -- is a constitutionally created body with constitutionally mandated
functions. However, as already stated, the actions of all such constitutional, bodies are subject
to" certiorari review by the Supreme Court as was done in G.R. Nos. 147589 and 147613. Thus,
the Court may intervene, strike down or modify COMELEC's actions without itself incurring any

166
liability for contempt; whether its Justices happen to be impeachable officers or not if the
Supreme Court (or its Members) can be held liable for contempt for official actions, then it would
cease to be "supreme" in its task of interpreting the law and would become subordinate to
whichever agency claims the power to cite the Court or its Members for contempt.

In short, the fact that Supreme Court Justices are impeachable officers should not be the
ground for the COMELEC's dismissal of the contempt charges. Rather, they cannot be held
liable for contempt, because their herein questioned Decision, Resolution, and Order that have
allegedly interfered with, proceedings of the COMELEC were made pursuant to their
constitutional function. To stop or impede COMELEC's proceedings when these have been
conducted without or in excess of jurisdiction or with grave abuse of discretion is not merely a
judicial prerogative; the Constitution mandates such move as a judicial duty." The performance
of this duty cannot subject the Court or its Members to contempt of the COMELEC; otherwise,
they would not be able to reverse or modify its abusive actions.

"The sound, salutary and self-evident principle, prevailing in this as in

most jurisdictions, is that judgments of the highest tribunal of the land may not be
reviewed by any other agency branch, department, or official of Government.
Once the Supreme Court has spoken, there the matter must rest. Its decision
should not and cannot be appealed to or reviewed by any other entity, much less
reversed or modified on the ground that it is, tainted by error in its findings of fact
or conclusions of law, flawed in its logic or language, or otherwise erroneous in
some other respect. This, on the indisputable and unshakeable foundation of
public policy, and constitutional and traditional principle." (In Re Joaquin T.
Borromeo, 311 Phil. 441, 509, February 21, 1995)

SECOND. The COMELEC's notion that impeachable officers cannot be held in contempt is
palpably incorrect or at least misleading. Maliciously implied in this notion is that the Supreme
Court erred in holding the Chairman and Members of the COMELEC in contempt via its
Resolution dated 18 February 2003 in the same G.R. Nos. 147589 and 147613.

As mentioned earlier, this Court has undisputed certiorari powers over the actions of the
Commission on Elections. As an incident of such prerogative, the Court has the inherent
authority to enforce its orders and to hold the COMELEC's Chairman and Commissioners in
contempt when they impede, obstruct, or degrade its proceedings or orders, or disobey, ignore
or otherwise offend its dignity.

Clearly, the COMELEC has no reciprocal constitutional power to pass upon the actions of this
Court or its Members Hence, the Commission has absolutely no authority to hold them in
contempt as an incident of its inexistent power of review. Even more clearly, it has no right to
recriminate or sulk when its imprudent actions are reversed, or its Members held in contempt for
their rash actions.

By voluntarily paying the fine imposed in our contempt Resolution of 18 February 2003, the
Chairman and all the Commissioners of the COMELEC displayed a becoming regard for the
rule of law in thereby recognizing this Court's authority to hold in contempt impeachable officials
like them. It is a source of wonder why the First Division composed of only three -- a minority --
of the seven COMELEC members are now in a tantrum over a final and executed contempt
Order of this Court.

"x x x [T]he punishment for contempt of court is a remedial, preservative

or coercive act, rather than a vindictive or punitive one, and is imposed for the
benefit of complainant or the other party to the suit who has been injured, and its
object is to compel obedience to, or the performance of, the court's orders or
decrees, which the contemnor refuses to obey although able to do so, and thus,
to secure, preserve, vindicate, enforce, or advance the rights of such private
parties, as well as to vindicate the court's authority." (Facinal vs. Cruz, 213
SCRA 23.8, 244-245, September 2, 1992)

As to the First division's reckless innuendo that. COMELEC Commissioners are exempt' from
criminal prosecution and thus from the criminal aspects of contempt, they should read De.

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Venecia vs. Sandiganbayan (G.R. No. 130240, February 5, 2002), People vs. Jalosjos (381
Phil. 6901, February .3, 2000), Santiago vs. Sandiganbayan; (363 Phil. 605, March 8, 1999),
Paredes, vs. Sandiganbayan (G.R. No. 118354, August 8, 1995), and Martinez vs. Morfe (44
SCRA 22, March 24, 1972). In those Decisions, lawmakers are not totally exempt from criminal
proceedings; how then can the First Division Commissioners pretend to be more special than
they?

THIRD, under the doctrine of separation of powers, the three major branches of government --
the Executive, the Legislative and the Judicial -- are coequal and coordinate with each other.
But none may interfere with, review or pass upon the exclusive powers vested in each of them
by the Constitution. Specifically, not even the other two great branches of government may
reverse or modify decisions and orders of the Supreme Court in given case -- not the President,
not Congress much less the COMELEC.

But, as part of the system of checks and balances, if. Congress does not agree with the Court's
interpretation of a law, it may repeal, modify or amend the statute; but it cannot directly overturn
the decision or hold the magistrates writing or voting thereon liable for contempt or for any
administrative, criminal, civil or any other liability. On the other hand, the President may appoint
justices who may change the interpretation in the future. But no act of Congress or the
President may alter a final and executory decision of this Court.

"Indeed, resolutions of the Supreme Court as a collegiate court, whether

en banc or division, speak for themselves and are entitled to full faith and
credence and are beyond investigation or inquiry under the same principle of
conclusiveness of enrolled bills of the legislature. (U.S. vs. Pons, 34 Phil. 729;
Gardiner, et al. vs. Paredes, et al., 61 Phil. 118; Mabanag vs. Lopez Vito, 78
Phil. 1) The Supreme Court's pronouncement of the doctrine that (l)t is well
settled that the enrolled bill . . . is conclusive upon the courts as regards the
tenor of the measure passed by Congress and approved by the President. If
there has been any mistake in the printing of the bill before it was certified by the
officers of Congress and approved by the Executive [as claimed by petitioner-
importer who unsuccessfully sought refund of margin fees] - on which' we cannot
speculate, without jeopardizing the principle of separation of powers and
undermining one of the cornerstones of our democratic system - the remedy is
by amendment or curative legislation, not by judicial decree is fully and
reciprocally applicable to Supreme Court orders, resolutions and decisions,
mutatis mutandis. (Casco Phil. Chemical Co., Inc. vs. Gimenez, 7 SCRA 347,
350. (Citing Primicias vs. Paredes, 61 'Phil. 118, 120; Mabanag vs. Lopez Vito,
78 Phil. 1; Macias vs. Comelec, 3 SCRA 1)
"The Court has consistently stressed that the doctrine of separation, of
powers calls for the executive, legislative and judicial departments being left
alone to discharge their duties as they see fit (Tan vs. Macapagal, 43 SCRA
677). It has thus maintained in the same way that the judiciary has a right to
expect that neither the President nor Congress would cast doubt on the
mainspring of its orders or decisions, it should refrain from speculating as to
alleged hidden forces at work that could have impelled either coordinate branch
into acting the way it did. The concept of separation of powers presupposes
mutual' respect by and between the three departments of the government
(Tecson vs. Salas, 34 SCRA 275, 286-287)
"To allow litigants to go beyond the Courts resolution and claim that the
members acted 'with deliberate bad faith' and rendered (an) 'unjust resolution' in
disregard or violation of the duty of their high office to act upon their own
independent consideration and judgment of the matter at hand would be to
destroy the authenticity, integrity and conclusiveness of such collegiate acts and
resolutions and to disregard utterly' the presumption of regular performance' of
official duty. To allow such collateral attack would destroy the separation of
powers and undermine the role of the Supreme Court as the final arbiter of all
justiciable disputes." (In Re Wenceslao Laureta, 148 SCRA 382, 419-420, March
12, 1987; italics in original)

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While the COMELEC is given specific powers and functions by the Constitution, the
Commission does not have the same level and standing as the three great branches of
government. Hence, erroneous and whimsical are all pretentions of equality, with those three,
as unabashedly propositioned directly or indirectly -- in the COMELEC Order of 10 September
2003.

FOURTH, citing the Separate Opinions of Justices Jose C. Vitug and, Vicente V. Mendoza in
the same cases (G.R. Nos. 147589 and 147613), the COMELEC's First division peremptorily
and erroneously charges the Chief Justice and the concerned Associate Justices with "judicial
legislation" allegedly constituting contempt. To begin with, the, dissenting Justices, particularly
Justice Vitug who is still a sitting Member, merely said that the ponencia "x x x may unwittingly
be crossing the limits of judicial legislation." The Dissent advisedly used the words "may" and
"unwittingly," but the First Division deviously misinterpreted these terms to mean a positive
charge of judicial lawmaking.

The main objection of the COMELEC's First Division which was earlier espoused by Justices
Vitug and Mendoza during 'the Court's deliberation namely, that the majority ignored the alleged
intent of the framers of the Constitution to open the party-list system to all groups, and not
exclusively to the "marginalized and underrepresented," has already been adequately:
addressed by the Court's 26 June 2001 Decision, from which we quote in part as follows:

"The Separate Opinions of our distinguished colleagues, Justices Jose C.

Vitug and Vicente V. Mendoza, are anchored mainly on the supposed intent of
the framers of the Constitution as culled, from their deliberations.
"The fundamental principle in constitutional construction, however, is that
the primary source from. Which to ascertain constitutional intent or purpose is
the language of the provision itself. The presumption is that the words in which
the constitutional provisions are couched express the' objective sought to be
attained. In other words, verba legis still prevails. Only when the meaning of the
words used .is unclear and equivocal should resort be made to extraneous aids
of construction and interpretation, such as the proceedings of the Constitutional
Commission or Convention, in order to shed light on and ascertain the true intent
or purpose of the provision being construed.
"Indeed, as cited in the Separate Opinion of Justice Mendoza, this Court
stated in Civil Liberties Union v. Executive Secretary that 'the debates and
proceedings of the constitutional convention [may be consulted in order to arrive
at the reason and purpose of the resulting Constitution x x x only when other
guides fail as said proceedings are powerless to vary the terms of the
Constitution when the meaning is clear. Debates in the constitutional convention
'are of value as showing the views of the individual members, and as indicating
the reason for their votes, but they give us no light as to the views of the large
majority who did not talk, much less of the mass of our fellow citizens whose
votes at the polls that instrument the force of fundamental law. We think it safer
to construe the Constitution from what appears upon its face.' The proper
interpretation therefore depends more on how it was understood by the people
adopting it than in the framers' understanding thereof.'
"Section 5, Article VI of the Constitution, relatives to the party-list system,
is couched in clear terms: the mechanics of the system shall be provided by law.
Pursuant thereto, Congress enacted RA 7941. In understanding and
implementing party-list representation, we should therefore look at the law first.
Only when we find its provisions ambiguous should the use of extraneous aids of
construction be resorted to.
"But, as discussed earlier, the intent of the law is obvious and clear from
its plain words. Section 2 thereof unequivocally states that the party-list system
of electing congressional representatives was designed to 'enable
underrepresented sectors, organizations and parties, and who lack well-defined
political' constituencies but who could contribute to the formulation and
enactment of appropriate legislation that will benefit the nation as a whole x x x.'
The criteria for participation is well defined. .Thus, there is no need for recourse
to constitutional deliberations, not even to the proceedings of Congress. In any

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 event, the framers deliberations merely express their individual opinions and are,
at best, only persuasive in construing the meaning and purpose of the
constitution or statute.
"Be it remembered that the constitutionality or validity of Sections 2 and 5
of RA 7941 is hot an issue here. Hence, they remain parts of the law, which must
be applied plainly and simply." (Citations omitted.)

Also, the Opinions of' the two esteemed Justices were merely those of individual Members But
the Court's Decision, Resolution and Order impugned by the COMELEC's First Division
constituted the collective rulings of the Court, not individual opinions of those writing or voting
for them. Unlike the members of the First Division, the dissenting Justices have graciously
accepted without any complaint, rancor or tantrum these collective actions of the Court which, to
quote the First Division itself, "form part of the legal system of the land."

The fact that the dissenters touched on the subject of judicial legislation means that the issue
had been thoroughly discussed by the Justices; but that after meticulous deliberation and
judicious study, the Court by majority vote held that its carefully crafted Decision did not amount
to usurpation of legislative' functions.

Despite the foregoing explanation, the C0MELEC First Division still condemned the Court for
.championing "the cause of the marginalized and underrepresented sectors [and] judicially
[giving] them a better chance to win the elections by prescribing that "nominees x x x must [also]
belong to marginalized and underrepresented sectors." It likewise contended that by
disqualifying parties that received funding, from the government (and not just from foreign
governments), the Court had unconstitutionally expanded the grounds for disqualification of
party-list candidates.

Again, our 26 June 2001 Decision has adequately taken up these concerns quite extensively.
We need not repeat here the lengthy discussions therein, except to say that:

(1) The Court's conclusion that the party-list system was intended for the marginalized and
underrepresented was, painstakingly and carefully culled from the Constitution and the law. It
was made only after, debate, discussion and a long study, as can be gleaned from even a
cursory reading of our Decision. That there were dissents even among the justices themselves
is proof enough of these spirited Deliberations. Finally, in consonance with the social justice
principle espoused by the partly-list law, the Court said:

"In the end, the role of the Comelec is to see to it that only those Filipinos
who are marginalized and underrepresented' become members of
Congress under the party list system, Filipino-style.
"The intent of the Constitution is clear to give genuine power to the
people, not only by giving more law to those who have less in life, but more so
by enabling them to become veritable Lawmakers themselves Consistent with
this intent, the policy of the implementing law, we repeat, is likewise clear 'to
enable Filipino citizens belonging to marginalized and underrepresented sectors,
organizations and parties, x x x, to become members of the House of
Representatives.' Where the language of the law is clear, it must be applied
according to its express terms. (Citation omitted)

Additionally, to stress the social Justice rationale of the law, the Court observed, as follows:

"It is ironic, therefore, that the marginalized and underrepresented in our

midst are the majority who wallow in poverty, destitution and infirmity It was for
them that the party-list system was enacted - to give them not only genuine
hope, but genuine power; to give them the opportunity to be elected and to
represent the specific concerns of their constituencies, and simply to give them a
direct voice in Congress and in the larger affairs of the State In its noblest sense,
the patty-list system truly empowers the masses and ushers a new hope for
genuine change. Verily, it invites those marginalized and under represented in
the past - the farm hands, the fisher folk, the urban poor, even those in the

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 underground movement to come out and participate, as indeed many of them
came out and participated during the last elections. The State cannot now
disappoint and frustrate them by disabling and desecrating this social justice
vehicle."

(2)������ Citing Section 2(4) of Article IX (B) of the Constitution and Article 261(o) of B.P.
Big. 881, the Court held that "the participation of the government or its officials in the affairs of a
party-list candidate is not only illegal and unfair to other parties, but also deleterious to the
objective of the law to enable citizens belonging to marginalized and underrepresented sectors
and organizations to be elected to the House of Representatives." Thus, in formulating one of
the guidelines for determining the qualifications of a party-list candidate, the Court ruled that the
"party or organization must not be an adjunct of, or a project organized or an entity funded or
assisted by, the government"

FIFTH, the COMELEC'S First Division ruled that in the same cases (G.R. Nos. 147589 and 1
4761 3), the Court had allegedly degraded the Commission by making the latter a mere
recommendatory body" and thus deprived it of its constitutional powers to enforce election laws.
Again, this is pure legal heresy.

In our 26 June 2001 Decision in those cases, a fact-finding task was delegated to the
COMELEC: to determine which of the party-list candidates had complied with the eight-point
guideline we had issued. This task had to be delegated because the Court is not a trier of facts,
and' the Corn mission is' precisely the constitutional agency that is supposedly knowledgeable
of election matters and the principal trier thereof.

Clearly delineated in our Decision was the specific work remanded to the COMELEC fact-
findings It did not involve, much less impair, the normal powers and duties of the poll body. To
stress, its task of fact-finding was specific and limited, one that accrued only as a direct result of
the disposition" in the said cases. In other words, its authority in this specific instance was
coextensive only with that which, was delegated to it to implement the Decision.

To its credit, it performed its delegated task without much ado and later submitted its three
Compliance Reports, which were subsequently affirmed by this Court.

Thus, the Court is now bewildered at these new sanctimonious perorations of the First Division,
complaining about the COMELEC being allegedly "scale(d) down to a mere recommendatory
body x x x virtually making it a mere rubber stamp" of the Court. These complaints had never
been aired by the Commission en banc which, as earlier stated, had performed its fact-finding
mission with commendable alacrity. Only when it overstepped as very limited and delegated
fact-finding authority and usurped the Court's work in relation to the aforementioned cases (G.R.
Nos. 147589 and 147613) did its attention have to be called by way of our contempt Resolution
dated 28 February 2003.

Incidentally, in this connection, the First Division is "astonished" at the fact that after penalizing
the COMELEC Commissioners for their improvident issuance of their Resolution proclaiming
certain party-list candidates, this Court did not void the proclamation. Plainly, the
answer is contained in our 25 June 2003 Resolution: The affected parties deserve due process,
and a decision or order affecting them may be issued only after they have completed their
arguments on the legal effects of the wrongful proclamation Indeed, there is a distinction
between holding in contempt the authors of an arbitrary proclamation resolution, on the one
hand, and, on the other, unseating those who have been proclaimed, have taken their seats in
Congress, and have begun performing their lawmaking duties. Has the First Division, wallowing
in its own tantrums, overlooked this significant difference?

SIXTH. The First Division also raised a big fuss about the alleged deprivation of due process
and equal protection. Again, the Honorable Division may have overlooked the fact that the basic
requirement of due process is the opportunity to be heard. The COMELEC has had more than
as just share of that opportunity. Prior to the Court's imposition of a penalty on them,
the COMELEC's Chairman and Members were asked to show cause why they should not be
cited for contempt via our rather lengthy Resolution dated December 17, 2002. And they
responded and tried vainly, it turned out in the end to justify their contumacious actions.

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Too, they were heard via their Motion for Reconsideration which, after due deliberation, was
denied by this Court. As already stated, all seven Members (including the Chairman) of the
Comelec paid the fine. Why are the three Members of, the First Division a minority in the banc
of seven now whining about their liability for contempt?

SEVENTH. That the official actions of this Court may be commented on or even criticized is a
right granted by the Constitution. But criticism that takes the form of malicious insinuation,
brazen ridicule or capricious innuendo has no place in a formal resolution of an agency that
seeks wrongly to hold in contempt this Court's Members for issuing decisions and orders that
have allegedly interfered with its proceedings. This truism remains clear and untrammeled in our
system of government, no matter how extravagantly the Members of the Commission First
Division may regard their own intellectual capacities and how poorly those of others. They must
bear in mind that there is only one Supreme Court to which all judicial and quasi-judicial
agencies must take their bearings. By their oath of office, they are bound to respect and obey its
decisions and orders, even if they may not agree with them. They need only to be reminded of
the following dictum which, though issued by the Court many years ago, still holds sway up to
now:

"We concede that a lawyer may think highly of his intellectual, endowment. That is his privilege.
And, he may suffer frustration at what he feels is others' lack of it. That is his misfortune. x x x
(S)uch frame of mind, however, should not be allowed to harden into a belief that he may attack
a court's decision in words calculated to jettison the time-honored aphorism that courts are the
temples of right." (Rheem of the Philippines vs. Ferrer, 20 SCRA 441, 444, June 26, 1967)

WHEREFORE, the Resolution promulgated by the First Division of the Commission on

Elections in EM-03-010 and EM-03-01 1, is NOTED insofar as it DISMISSED the Petitions for
Contempt; but its "reasons given" therefor are DECLARED UTTERLY BASELESS for having
been 'palpably issued without jurisdiction, being in clear contravention of the Constitution and, of
our Resolution dated 26 August 2003.

Inasmuch as "the COMELEC's First Division forwarded September 2003 Resolution to the
House of Representatives, let a copy of this unanimous en banc' Resolution of the Court be
sent also to the House of Representatives as well as to- the Chairman of the Commission on
Elections.

Very truly yours,

LUZVIMINDA D. PUNO

Clerk of Court

FACTS:

In its 38-page Resolution, the COMELEC First Division dismisses the Petitions for Contempt against the Chief
Justice and some Associate Justices and basically insinuates two points as follows:

(1) that it possesses the power to hold in contempt the Chief Justice and some
Associate Justices for their participation and vote in decisions and orders of
this Court, which allegedly interfered with or impeded the proceedings of
the Commission; and
(2) that it had in fact determined the "existence of sufficient grounds to declare
respondents in contempt of [the] Commission and to 'impose the proper
penalty," were it not for the fact that the Justices were impeachable officers
who "must first be removed from office by impeachment before any
punitive measure may be imposed against them."

ISSUE: Whether the reasons given by the COMELEC in dismissing the Petitions for Contempt are with legal
basis.

HELD: NO. The ratiocinations constitute plain and simple legal balderdash.

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FIRST, the Commission has no jurisdiction to hold the Court or any of its Members in contempt for
any, decision, order or official action they issue.

Verily, under Article VIII, Section 1 of the Constitution "[j]udicial power includes the duty of the
courts of justice x x x 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." More
specifically, Article. IX, Section 7 of the Constitution grants the Supreme Court the authority to pass upon on
certiorari "any decision, order or ruling" of the COMELEC and other constitutional commissions.

True, the COMELEC -- along with the Commission on Audit, the Commission on Civil Service and the,
Ombudsman -- is a constitutionally created body with constitutionally mandated functions. However, the
actions of all such constitutional, bodies are subject to" certiorari review by the Supreme Court. Thus,
the Court may intervene, strike down or modify COMELEC's actions without itself incurring any liability for
contempt; whether its Justices happen to be impeachable officers or not if the Supreme Court (or its
Members) can be held liable for contempt for official actions, then it would cease to be "supreme" in its task of
interpreting the law and would become subordinate to whichever agency claims the power to cite the Court
or its Members for contempt.

In short, the fact that Supreme Court Justices are impeachable officers should not be the ground for the
COMELEC's dismissal of the contempt charges. Rather, they cannot be held liable for contempt,
because their herein questioned Decision, Resolution, and Order that have allegedly interfered with,
proceedings of the COMELEC were made pursuant to their constitutional function. To stop or impede
COMELEC's proceedings when these have been conducted without or in excess of jurisdiction or with grave
abuse of discretion is not merely a judicial prerogative; the Constitution mandates such move as a judicial
duty." The performance of this duty cannot subject the Court or its Members to contempt of the COMELEC;
otherwise, they would not be able to reverse or modify its abusive actions.

SECOND. The COMELEC's notion that impeachable officers cannot be held in contempt is palpably incorrect
or at least misleading. Maliciously implied in this notion is that the Supreme Court erred in holding the
Chairman and Members of the COMELEC in contempt via its Resolution.

As mentioned earlier, this Court has undisputed certiorari powers over the actions of the Commission
on Elections. As an incident of such prerogative, the Court has the inherent authority to enforce its
orders and to hold the COMELEC's Chairman and Commissioners in contempt when they impede,
obstruct, or degrade its proceedings or orders, or disobey, ignore or otherwise offend its dignity.

Clearly, the COMELEC has no reciprocal constitutional power to pass upon the actions of this Court or
its Members Hence, the Commission has absolutely no authority to hold them in contempt as an
incident of its inexistent power of review. Even more clearly, it has no right to recriminate or sulk
when its imprudent actions are reversed, or its Members held in contempt for their rash actions.

THIRD, under the doctrine of separation of powers, the three major branches of government -- the Executive,
the Legislative and the Judicial -- are coequal and coordinate with each other. But none may interfere with,
review or pass upon the exclusive powers vested in each of them by the Constitution. Specifically, not even
the other two great branches of government may reverse or modify decisions and orders of the Supreme
Court in given case -- not the President, not Congress much less the COMELEC.

While the COMELEC is given specific powers and functions by the Constitution, the Commission does
not have the same level and standing as the three great branches of government. Hence, erroneous and
whimsical are all pretentions of equality, with those three, as unabashedly propositioned directly or
indirectly.

WHEREFORE, the Resolution promulgated by the First Division of the Commission on Elections in EM-03-
010 and EM-03-01 1, is NOTED insofar as it DISMISSED the Petitions for Contempt; but its "reasons given"
therefor are DECLARED UTTERLY BASELESS for having been 'palpably issued without jurisdiction, being in
clear contravention of the Constitution and, of our Resolution.

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