ssEN BANC G.R. No.

L-19272 January 25, 1967

JAIME HERNANDEZ, petitioner-appellant, vs. DELFIN ALBANO, HERMOGENES CONCEPCION, JR., City Fiscal of Manila and CARLOS C. GONZALES, Second Assistant City Fiscal of Mania, respondents-appellees. San Juan, Africa & Benedicto for petitioner-appellant. City Fiscal Hermogenes Concepcion, Jr. and Assistant Fiscal E. S. Arguelles for and in their own behalf. Valera Law Office for respondent-appellee Albano. SANCHEZ, J.: This case has its roots in a complaint lodged with the Office of the City Fiscal of Manila, by respondent Delfin Albano, quondam Congressman for the lone district of Isabela, against petitioner Jaime Hernandez, then the Secretary of Finance and Presiding Officer of the Monetary Board of the Central Bank for violation of Article 216 of the Revised Penal Code, Commonwealth Act 6261 or Republic Act 265.2 The complaint revolves around petitioner's alleged shareholdings in the University of the East, Bicol Electric Co., Rural Bank of Nueva Caceres, DMG inc., and University of Nueva Caceres and the claim that said corporations obtained dollar allocations from the Central Bank, through the Monetary Board, during petitioner's incumbency as presiding officer thereof. The charges involved were docketed in the City Fiscal's Office, as I.S. No. 11379 re petitioner's holdings in Rural Bank of Nueva Caceres; I.S. No. 11380 re petitioner's holdings in the University of Nueva Caceres; I.S. No. 11381 re petitioner's holdings in the Bicol Electric Co.; I.S. No. 11382 re petitioner's holdings in the University of the East; and I.S. No. 11383 re petitioner's holdings in the DMG, Inc.

At the joint investigation of the foregoing charges before respondent Carlos C. Gonzales, the investigating Fiscal, complainant moved to exclude therefrom the alleged violation of Article 216 of the Revised Penal Code because the applicability of this statute was in issue of Solidum, et al. vs. Hernandez, L-16570, at the time pending before this Court, but which had since been resolved by us February 28, 1963 adversely to Hernandez. Fiscal Gonzales granted the motion. Then, petitioner sought the dismissal of the remaining charges upon the averment that (a) violation of Article VII, Section 11, subsection (2) of the Constitution, punishable under Commonwealth Act 626, should be prosecuted at the domicile of the private enterprises affected there by; and that (b) violation of Section 13 of Republic Act 265 is not criminal in nature. Dismissal was denied; reconsideration thereof failed. To restrain the respondent Fiscals from continuing the investigation, petitioner went to the Court of First Instance of Manila on certiorari and prohibition with a prayer for preliminary injunction.3 The decision dated October 13, 1961, reached upon a stipulation of facts, dismissed the petition, with costs. Petitioner appealed. 1. Stripped of inconsequential issues, the forefront question thrust upon us is whether the prosecuting arm of the City of Manila should be restrained from proceeding with the investigation of the charges levelled against petitioner. By statute, the prosecuting officer of the City of Manila and his assistants are empowered to investigate crimes committed within the city's territorial jurisdiction. Not a mere privilege, it is the sworn duty of a Fiscal to conduct an investigation of a criminal charge filed with his office. The power to investigate postulates the other obligation on the part of the Fiscal to investigate promptly and file the case of as speedily. Public interest the protection of society so demands. Agreeably to the foregoing, a rule now of long standing and frequent application was formulated that ordinarily criminal prosecution may not be blocked by court prohibition or injunction.4 Really, if at every turn investigation of a crime will be halted by a court order, the administration of criminal justice will meet with an undue setback.5 Indeed, the investigative power of the Fiscal may suffer such a tremendous shrinkage that it may end up in hollow sound rather than as a part and parcel of the machinery of criminal justice.

We are not to be understood, however, as saying that the heavy hand of a prosecutor may not be shackled under all circumstances. The rule is not an invariable one. Extreme cases may, and actually do, exist where relief in equity may be availed of to stop a purported enforcement of a criminal law where it is necessary (a) for the orderly administration of justice; (b) to prevent the use of the strong arm of the law in an oppressive and vindictive manner; (c) to avoid multiplicity of actions;6 (d) to afford adequate protection to constitutional rights; 7and (e) in proper cases, because the statute relied upon is unconstitutional, or was "held invalid."8 With the foregoing guidelines, we come to grips with the legal problems of whether a. Violation of Art. VII, Section 11, Subsection (2) of the Constitution punishable under C.A. 626, should be prosecuted at the domicile of the private enterprise affected by the violation; and b. Violation of Section 13 of Republic Act 265 is criminal in nature. 2. The constitutional prescription allegedly violated, Article VII, Section 11(2), reads: (2) The heads of departments and chiefs of bureaus or offices and their assistants shall not, during their continuance engage in the practice of any profession, or intervene, directly or indirectly, in the management or control of any private which in any way may be affected by the function of their office; nor shall they directly or indirectly, be financially interested in any contract with the Government, or any subdivision or instrumentality thereof. Commonwealth Act 626 provides the penal sanction for a violation of this constitutional precept, i.e., a fine of not than P5,000 or imprisonment of not more than 2 years, or both. The legal mandate in Section 14, Rule 110 of the Rules of the Court is that "[i]n all criminal prosecutions the action shall be instituted and tried in the court of the municipality or province wherein the offense was committed or any one of the essential ingredients thereof took place."9 This principle is fundamental. 10 Thus, where an offense is wholly committed outside the territorial limits wherein the court operates, said court is powerless to try 1

the case. For, "the rule is that one cannot be held to answer for any crime committed by himexcept in the jurisdiction where it was committed." 11 Similarly, the City Fiscal of Manila and his assistants as such may not investigate a crime committed within the exclusive confines of, say, Camarines Norte. This proposition offers no area for debate. Because, said prosecuting officers would then be overreaching the territorial limits of their jurisdiction, and, in the process, step on the shoes of those who, by statute, are empowered and obligated to perform that task. They cannot unlawfully encroach upon powers and prerogatives of the Fiscals of the province aforesaid. Petitioner seeks to bar respondent Fiscals from investigating the constitutional violation charged. His claim is that except for his holdings in Manila's University of the East the Manila Fiscals are powerless to investigate him. His reason is that the essence of the crime is his possession of prohibited interests in corporations domiciled in Naga City (Rural Bank of Nueva Caceres, University of Nueva Caceres and Bicol Electric Co.,) and in Mandaluyong, Rizal (DMG Inc.); and that the place where the crime is to be prosecuted is "the situs of such shares." In effect, petitioner asks us to carve out an exception to the rule that said Fiscals may not be enjoined from conducting the inquiry aforesaid. We would not hesitate to state that, if it clearly appears that the crime or any essential ingredient thereof was committed outside the boundaries of the City of Manila, petitioner's argument should merit serious consideration. For, orderly administration of justice so demands; multiplicity of criminal actions is to be obviated; the long arm of the law cannot be used in an oppressive or vindictive manner. But let us take a look at the admitted facts of this case. Petitioner himself concedes that he stands "charged with allegedly having shareholdings in the Bicol Electric Co., Rural Bank of Nueva Caceres, University of Nueva Caceres, DMG Inc., and the University of the East, and a that the said corporations purportedly obtained doll or allocations from the Central Bank thru the Monetary Board during the incumbency of respondent as presiding officer thereof." 12 Petitioner relies on Black Eagle Mining Co. vs. Conroy et al., 221 Pac. 425, 426, thus

Shares of stock are a peculiar kind of personal property, and are unlike other classes of personal property in that the property right of shares of stock can only be exercised or enforced where the corporation is organized and has its place of business and can exist only as an incident to and connected with the corporation, and this class of property is inseparable from the domicile of the corporation itself. By no stretch can the cited case be taken as germane to the controversial point here. It speaks of property rightto shares of stock which can only be enforced in the corporation's domicile. In the case at bar, the charges are not directed against the corporations. Not mere ownership of or title to shares is involved. Possession of prohibited interests is but one of the essential components of the offense. As necessary an ingredient thereof is the fact that petitioner was head of a department Secretary of Finance. So also, the fact that while head of department and chairman of the Monetary Board he allegedly was financially interested in the corporations aforesaid which so the dollar allocations, and that he had to act officially, in his dual capacity, not in Camarines Sur, but in Manila where he held his office. Since criminal action must be instituted and tried in the place where the crime or an essential ingredient there of, took place, it stands to reason to say that the Manila under the facts obtained here, have jurisdiction to investigate the violation complained of. 3. The other argument pressed upon us that a violation of Section 13 of Republic Act 265 is not criminal in nature furnishes no better foundation. Section 13 of Republic Act 265, allegedly violated by petitioner, recites: SEC. 13. Withdrawal of persons having a personal interest. Whenever any person attending a meeting of the Monetary Board has a personal interest of any sort in the discussion or resolution of any given matter, or any of his business associates or any of his relatives within the fourth degree of consanguinity or second degree of affinity has such an interest, said person may not participate in the discussion or resolution of the matter and must retire from the meeting during the deliberations thereon. The

minutes of the meeting shall note withdrawals of the member concerned.

the

The gravamen of petitioner's argument is that for a violation of Section 13 of the law aforesaid, Section 15 of the same statute provides "only for a civil sanction." "not a criminal sanction." Said Section 15 reads: SEC. 15. Responsibility. Any member of the Monetary Board or officer or employee of the Central Bank who willfully violates this Act or who is guilty of gross negligence in the performance of his duties shall be held liable for any loss or injury suffered by the Bank as a result of such violation or negligence. ... The nonsequitur is at once apparent. For, Section 34 of the same Republic Act 265, in terms clear and certain and free from the taint of ambiguity, provides the penal sanction.13 thus SEC. 34. Proceedings upon violation of laws and regulations. Whenever any person or entity willfully violates this Act or any order, instruction, rule or regulation legally issued by the Monetary Board, the person or persons responsible for such violation shall be punished by a fine of not more than twenty thousand pesos and by imprisonment of not more than five years. ... But, petitioner draws attention to the fact that Sections 13 and 15 both fall under "Article II The Monetary Board," of Chapter 1. "Establishment and Organization of the Central Bank of the Philippines," whereas Section 34 comes under the heading "B. Department Supervision and Examination" of "Article IV. Departments of the Central Bank." From this, petitioner puts forth the claim that the penal provisions in Section 34 are "to be restricted to the matters encompassed in that topic, that is, the supervision of banking institutions."14 We are unable to join petitioner in this ipse dixit pronouncement. And, for a number of reasons.First, because while Section 15 provides for the civil liability "for any loss or injury suffered by the (Central) Bank as a result of such violation," Section 34 prescribes the penalty for the willful violation of "this Act," irrespective of whether the bank suffered any loss or not. Second, the entire statute is not in piecemeal style but as a whole. Effort be exerted "to make every part effective, harmonious sensible." 15 And so construing we find that the one refers to the civil liability at the same time that the other specifies a separate criminal liability. Indeed, it could well be said that the penal sanction in 2

Section 34 is an "additional incentive toward obedience of the mandates of the law." 16 One does not preclude the other. Third, We observe that the penal provisions of Republic Act 265 were placed in three successive sections thereof, Sections 32, 33 and 34. Section 32 penalizes any owner, agent, manager or other officers in charge of any banking who willfully refuses to file the required reports to have the bank's affairs examined. Section 33 penalizes the making of a false statement to the Monetary Board. Section 34 provides for the penalty to be imposed upon any person who violates, among others, the provisions of said Act. This grouping of penalties obviously was intended to present a clearer picture of the liabilities which the Central Bank Act specifies, and thus avoid confusion. 17 All else failing, petitioner summons to his aid the Congressional Record on the deliberations on House Bill 1704 (which later became Republic Act 265), to wit: Mr. Topacio Nueno. On page 6, Section 13 prohibiting relatives from transacting business. I should like to insert a punishment, a penal clause. On line 11, add the following: "Violation of this section is punishable by dismissal and fine of from five thousand to ten thousand pesos." The Speaker. What does the Committee say? Mr. Roy. We cannot accept the amendment. The Speaker. When we come to the provision with regard to the penalties, the gentleman from Manila may propose that amendment, in order that they may be included in the same section. Mr. Topacio Nueno I reserve that amendment later on. xxx xxx xxx

Mr. Roy. Under Section 32, the offenses intended to be punishable are specified. It is in Section 34 where the law is very broad. It provides: 'Whenever any person or entity willfully violates this Act or any order, instruction, rule or regulation legally issued by the Monetary Board, ....' I think the court will determine the gravity of the offense. Mr. Speaker, because there are many provisions of law; and the rules and regulations of the Monetary Board will vary in their importance and in the seriousness of the consequences of the violation. So we will leave to the Court the determination of the gravity of the offense. That is why the range of penalties provided under Section 34 is not more than ten thousand pesos and by imprisonment of not more than five years. ... Congressional Record, First Congress, Third Session, Vol. 3, pp. 1259, 1281. Petitioner notes the failure of Congressman Topacio Nueno to reiterate his proposed amendment to Section 13 by providing therein a penal clause. Paying full respect to the congressional intent as it may be reflected in the debates, nonetheless it seems to us that nothing in the quoted transcript of the congressional record may be reasonably deemed as foreclosing criminal action. That the announced amendment was not submitted, is perfectly understandable. There was no need therefor. For, as Congressman Roy aptly puts it (in the aforesaid record), "Under Section 32 the offenses intended to be punishable are specified. It is under section 34 where the law is very broad, which simply means that any person and this includes the Chairman of the Monetary Board who "wilfully violates this Act," shall be punished. The respondent Fiscals, indeed justifiably relied or Section 34 in pursuing their investigation for a violation Section 13. For Section 15 is not intended to write off from the said Section 34. To do so is to sanction pointless rigidity in statutory construction. In the light of the considerations, we vote to affirm the judgment under review. Costs against petitioner. So ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, J.P., Zaldivar and Castro, JJ., concur. Footnotes

SECOND DIVISION G.R. No. L-38383 May 27, 1981 WILLELMO C. FORTUN, petitioner, vs. RUFINO O. LABANG, in his capacity as City Fiscal of Pagadian City; Attorney MARTIN VERA CRUZ; and Attorneys ANDRES BERSALES, PABLITO PIELAGO GLICERIO CARPIO, SANTIAGO EISMA, and LEONARDO ZULUETA, as President, Vice-President, Secretary, Treasurer, and Director, respectively, of the Zamboanga del Sur and Pagadian City Chapter of the Integrated Bar of the Philippines, respondents.

FERNANDO, C.J.:1wph1.t The decisive issue in this prohibition and certiorari proceeding, filed on March 20, 1974 by Judge Willelmo C. Fortun, then the incumbent District Judge of the Court of First Instance of Zamboanga del Sur and Pagadian City, Branch III, is the applicability of the basic principle that while this Tribunal in the exercise of its equitable powers will not restrain any action taken in the enforcement of a criminal statute, an exception is made, and prohibition lies, as set forth in the leading case of Dimayuga and Fajardo v. Fernandez, 1 "where it is necessary for the orderly administration of justice, or to prevent the use of the strong arm of the law in an oppressive or vindictive manner, or a multiplicity of actions." 2 As was pointed out in the opinion, this doctrine is traceable to the earlier decision of Kwong Sing v. City of Manila, 3 with Justice Malcolm as ponente , In brief, petitioner Judge was accused by a member of the bar 4 and a former employee 5 in a letter complaint of a possible irregularity in his claim for gasoline allowance, originally considered by them sufficing to hold him liable administratively. Five of the nine members of the Board of Directors of the provincial chapter of the Integrated Bar endorsed such administrative charge to the Board of Governors of the Integrated Bar of the Philippines, retired Justice J. B. L. Reyes being the President at that time. After four months, such letter-complaint with the affidavit was endorsed to the City Fiscal, respondent Rufino O. Labang. 6 Then came these crucial allegations: " 10. On February 16, 1974, respondent City Fiscal, acting with precipitate haste and without exercising the utmost care and prudence which the case required, considering the seriousness of the charge and the sensitive nature of petitioner's office, and without bothering to comply with the mandatory 3

Mr. Laurel. May we be informed which of the three offenses mentioned in Sections 32, 33, and 34 is regarded to be the most serious? I am asking this question because I notice that the penalties imposed are not the same. Which of the three offenses covered by the three sections I have mentioned is the most serious?

provisions of Section 1 (a) of Presidential Decree No. 77, dated December 6, 1972, namely, that the statement of the complainant or his witnesses should be sworn to before him as investigating fiscal, and without taking into account Paragraphs 2 and 6 of Executive Order No. 264, dated October 6, 1970 in conjunction with Rule 140 of the Revised Rules of Court, which require that complaints against CFI Judges should be filed with the Supreme Court, peremptorily gave due course to said complaint and its supporting papers by immediately issuing a subpoena (I.S. Nos. 392-403-74) requiring petitioner to file and serve his answer or counter-affidavits and other supporting papers thereto. 11. On the morning of February 18, 1974, just as petitioner was about to ascend the rostrum to start the first session in his Court, after 6 months absence therefrom due to his detail as CFI Judge of Tarlac, Branch I, said subpoena was served upon him in a jampacked courtroom, filled with practitioners and spectators who were not there for any case but to witness the reaction of petitioner to the service of said subpoena, in further disregard of the spirit behind Section 6 of Rule 140, Revised Rules of Court, on the confidentiality of proceedings against judges." 7 Petitioner Judge contested the legality of the issuance of said subpoena and asked for the dismissal of the complaint, but he was unsuccessful. Hence, this petition before this Tribunal. The petition on its face being indicative of a possible harrassment to which Judge Fortun was subjected by reason of his official action, the letter-complaint coming from a member of the bar who had lost six of the nine cases in petitioner's sala 8 and the supporting affidavit coming from a disgruntled former employee, 9 this Court issued a temporary restraining order, and, in the same resolution of March 25, 1974, require comment from the respondents. Only respondent City Fiscal filed a comment on May 6, 1974. There was no explicit denial of certain allegations indicative of the hostility manifested towards petitioner Judge. Instead, the ten-page comment relied on what was considered to be applicable decisions. There was no effort to refute the allegation that there was a failure to abide by the requirements of Presidential Decree No. 77, but, it was argued that there was substantial compliance. Also, there was a misreading of the opinion of this Court inTecson v. Salas, 10 concerning the broad scope of the power of the President over executive officials. It certainly lacks the necessary persuasiveness to justify the lifting of the restraining order. Petitioner Judge saw the opportunity to file a reply, and on June 27, 1974, did so. After noting that the other private respondents failed to contest the petition, the reply stressed that the pattern of harrassment was quite obvious. Thus "Under date of September 17th, 1973, Atty. Martin Vera Cruz, a disgruntled barrister who lost 6 out of

the 9 cases he filed before petitioner's sala, sent a letter, not to the City Fiscal, but to Atty. Andres Bersales, President of the Zamboanga del Sur Chapter of the Integrated Bar, asking, in effect, that administrative charges be initiated against petitioner for alleged misuse of his travel allowances. What did Atty. Bersales do? He convened the Board of Directors of the local IBP chapter and out of its 9-man membership, 5 attended, as follows: 1) Atty. Andres Bersales, its President and the Provincial Board Secretary, who lost all his cases before petitioner's sala. 2) Atty. Pablito Pielago, who works with Atty. Bersales in the Governor's Office. 3) Atty. Glicerio Carpio, who works also with Atty. Bersales in the Governor's Office. 4) Atty. Santiago Eisma Provincial Treasurer who, in the first place, officially approved in such capacity payment of all the disbursements of petitioner now being questioned. 5) Atty. Leonardo Zulueta, who lost all except one of the cases he handles before petitioner's sala. The five of them, without the concurrence or attendance of the remaining 4 members of the 9-man Board of Directors of the Integrated Bar Chapter of Zamboanga del Sur on so important a subject, peremptorily passed resolution no. 7 resolving to file not only administrative but criminal charges against petitioner. The resolution discloses 2 things: first, it is not reflective of the collective will of the IBP Chapter concerned because it was a divided Board that acted on it and, second, the five members who voted for it without the participation of the 4 others have 'axes to grind' against petitioner. Two of them, Atty. Bersales and Zulueta, invariably lost their cases before petitioner's sala while Atty. Pielago and Carpio are subordinates of Atty. Bersales in the Governor's Office." 11 To indicate that the complaint was filed as a manifestation of vindictiveness and for the humiliation of petitioner judge, the reply characterized the resolution of the Integrated Bar of the Philippines chapter as having been "railroaded," petitioner not having been given a chance to explain his side contrary to procedural due process. He strengthened his petition by quoting the full text of the answer of retired Justice J. B. L. Reyes, then President of the Integrated Bar of the Philippines rejecting the plea of such chapter to support the criminal case filed with the respondent City Fiscal. 12 Such letter of Justice J. B. L. Reyes should be quoted in full: "We have just received copy of Resolution No. 10 of your Chapter, recommending that administrative and criminal charges be filed against Judge Willelmo Fortun of the Court of First Instance of Zamboanga del Sur and Pagadian City and requesting the preventive suspension of said Judge. One thing that immediately attracted our attention is that nowhere in the resolution is there any indication that the respondent Judge was informed of the charges studied by the Grievance Committee, nor does it appear that

said respondent was given an opportunity to present his side before the Grievance Committee or the Board of Officers adopted said Resolution No. 10. It is thus manifest that the action of the Chapter officers violated the cardinal principles of fairness and due process that underlie the Rule of Law. Not only this, but the Chapter's action in this case has disregarded the fact that the integration of the Bar sought to make it possible not only to protect lawyers and litigants and to discipline and/or remove incompetent and unworthy judges, but also to '(4) Shield the judiciary which traditionally cannot defend itself except within its own forum, from the assaults that politics and self-interest may level at it, and assist it to maintain its integrity, impartiality and independence.' ... The unseemly haste with which the Chapter appears to have acted, referring the charges to the City Fiscal's office, without notice to the respondent nor giving him opportunity to present his side before taking action, precludes this national office from supporting the aforesaid Resolution No. 10. Not only this, but in the absence of adequate explanation for such one-sided action on the part of your Chapter, it will become the unavoidable duty of this Office to oppose the suspension asked for. It is unfortunate that lawyers who have taken an oath to support and defend the law and the Constitution should choose to ignore the fundamental principle of due process. It is therefore requested that you remit to this Office a full report of the proceedings of the Grievance Committee and the adoption of its recommendations by the Board of Officers, as soon as possible. Pending receipt thereof, we have asked the Honorable Supreme Court to withhold action on your Chapter's request for preventive suspension. The Board of Governors of the Integrated Bar is due to meet on March 23, 1974. It would be best if your report is received by this Office before said date." 13 No effort was made either by respondent City Fiscal or any of the private respondents to dispel in any way the grave doubts raised as to the bona fides in the filing of this complaint against petitioner. A memorandum was submitted by petitioner. Respondents maintained their silence. The only explanation appears to be their realization that the petition is meritorious. So we find. Prohibition lies. 1. At the outset, reference was made to the invocation by petitioner-judge of the leading Dimayuga decision. Seven years after its promulgation, in 1930 to be precise, it was relied upon in Tong v. Santamaria & Standard Oil Co. 14 Justice Villamor as ponente stressed that "the remedy of prohibition is somewhat sui generis, and is one 4

more or less of legal discretion, and is intended to prevent the oppressive exercise of legal authority."15 Such categorical enunciation of one of the most highly valued principles of equity ought to have cautioned respondent City Fiscal against, in the language of then President of the Integrated Bar of the Philippines, retired Justice J. B. L. Reyes, acting with "unseemly haste." This is one occasion then that calls for the exercise of the equitable powers of this Court to repudiate what was clearly an "oppressive exercise of legal authority." It only remains to be added that Dimayuga has been cited with approval in a number of cases subsequent to Tong v. Santamaria. 16 2. The sad and lamentable spectacle that this case presents, a judge being subjected to harrassment and humiliation, fortunately is not typical. It can diminish public confidence in the courts. At the very least, it minimizes the respect properly owing an occupant of the bench. Whatever be the motive of respondent City Fiscal, the impression yielded is that such excessive zeal was not prompted solely by obedience to his oath of office. The appearance, hopefully not the reality, could only be that of sheer vindictiveness or oppressive exercise of state authority. He was oblivious of the fact that the judiciary and the prosecution service are both essential agencies in the enforcement of penal statutes, not antagonists. At times it has been said, and with reason, that the rights of an accused person could be emasculated even rendered nugatory, if a judge and the prosecuting fiscal are on the most amicable terms. Respondent City Fiscal in this case erred on the other extreme. He was the first to lend himself to a scheme that could have no other purpose than to place petitioner-judge in contempt and disrepute. Such conduct calls for vigorous condemnation. The Constitution cannot be any more explicit: "Public office is a public trust." 17 A public official must keep uppermost in his mind that the sole guide in the performance of his duties is the paramount need of the public service. 3. The petition made reference to an Executive Order outlining the procedure on complaints charging government officials and employees with commission of irregularities. 18 It is therein provided that complaints against presidential appointees, and judges are included among them, "shall be filed with the Office of the President or the Department Head having direct supervision or control over the official involved." 19 At present, the department head is the Supreme Court, the Constitution having expressly vested the power of supervision over all courts to this Tribunal. 20 The removal of such power in the Department of Justice in 1973, now the Ministry of Justice, is a recognition of the need to preserve unimpaired the independence of the judiciary, especially

so at present, where to all intents and purposes, there is a fusion between the executive and the legislative branches. Many are the ways by which such independence could be eroded. While the present instance is a rare aberration, it could happen again. When such a case occurs, this Court must act and promptly to set matters right. This is what the Court did in its resolution immediately issuing a temporary restraining order upon the petition being filed. It cannot be too strongly emphasized that a judge of an inferior court is deserving of the full protection of this 'Tribunal against any form of vexation, inconvenience, or harrassment, the more so when, as is quite evident, haste and recklessness marked the conduct of respondent City Fiscal. Let there be no misunderstanding. Our ruling does not signify that this Tribunal is averse to a judge facing charges against him, if presented in the manner provided for by law and with bona fides. The power of administrative supervision precisely has been granted to this Court to assure that malefactors on the bench suffer for their misdeeds. Conversely, however, when, as did happen here, a complaint was utilized to embarrass and humiliate a member of the judiciary, it is broad enough to include such remedial action in aid of a judge, who, to all the appearances is the victim of a deliberate attempt to impugn his good name and reputation. The judicial power constitutionally granted to this Court, independently of the grant of supervisory authority, justifies the intervention of this Court in a case like to present. 4. The characterization by retired Justice J. B. L. Reyes, then President of the Integrated Bar of the Philippines, of the "unseemly haste" that marked the actuation of respondent members of the Board of Directors of the Integrated Bar Chapter of Zamboanga del Sur, Pagadian City Chapter, appears to be rather mild all things considered. He pointed out that there was a violation of the cardinal principles of fairness and due process that underlie the Rule of Law. Petitioner-Judge was not heard; he was denied the opportunity to defend himself against the accusation. There was, on the part of private respondents then, a failure to abide by a Resolution of the Integrated Bar stressing that precisely integration could shield "the judiciary which traditionally cannot defend itself except within its own forum, from the assaults that politics and self- interest may level at it, and assist it to maintain its integrity impartiality and independence.'" 21 A greater sense of responsibility, not to say a more adequate grasp of the cardinal requirements of due process as well as of the applicable procedural rules, ought to have been displayed by private respondents. Moreover, they did not even make any effort to dispute the accuracy of the imputation of being disgruntled

members of the bar with a record of losing cases. That apparently was the motive for their accusation. They paid no attention to the norm of conduct that lawyers should observe as officers of the Court. The then officers of the Integrated Bar, included as private respondents, have an even greater responsibility. Clearly, they were recreant to the trust reposed on them. The penalty of censure is imposed on each and everyone of the private respondents. WHEREFORE, the writ of prohibition is granted restraining respondent City Fiscal or any one acting in his place from enforcing the subpoena dated February 16, 1974 in I.S. Nos. 392- 403-74 and from proceeding with the preliminary investigation based on the letter-complaint of respondent Martin Vera Cruz to the President of the Integrated Bar of the Philippines of Zamboanga del Sur Chapter and Pagadian City. The writ of certiorari is likewise granted annulling the order of February 22, 1974 issued by respondent City Fiscal denying the motion to dismiss filed by petitioner. The complaint against petitioner is dismissed. The restraining order is hereby made permanent. Let a copy of this decision be spread on the record of private respondents Martin Vera Cruz, Andres Bersales, Pablito Pielago, Glicerio Carpio, Santiago Eisma and Leonardo Zulueta. This decision is without prejudice to a bona fide investigation of the charges against petitioner, Judge Willelmo C. Fortun, who has since then been appointed to the Court of First Instance of Lingayen, Branch I. Let a copy of this decision be furnished the Ministry of Justice and the Tanodbayan Costs against respondents. Barredo, Aquino, Guerrero, Abad Santos and De Castro, JJ., concur.1wph1.t Footnotes

EN BANC GR No. L-47006 June 26, 1940 PEDRO DE vs.. ALEJO MABANAG, Manila appealed. LEON, appellant, Prosecutor of

City

D. Pedro de Leon in his own representation. The prosecutor relied on their own representation. IMPERIAL, J.: The purpose of this resource injunction is to prevent the prosecutor appealed the City of Manila continue practicing the preliminary investigation against the appellant for the crime of falsification of public document and present the same complaint against appellant, the said offense, to the Court of First Instance of that city.The application was originally presented to the Court of Appeals which certify and endorse the case to the Supreme Court reciprocate their knowledge and judgment. In Case No. RG 46153 of this Court, entitled "Pedro de Leon, plaintiff-appellant, vs. Philip Juyco, defendantappellee," the main and decisive controversy was whether it was genuine or fake document marked Exhibit V-1, presented during the trial in the Court of First Instance of Pampanga by the appellant. After this had presented its case, as appellant, defendant-appellee filed a motion in which alleged that the Exhibit V-1 which was attached to the record was false because it was not the same Exhibit V-1 which had been presented at trial and asked to be practiced by the Court an investigation on that document and that in the event that proves false, to order the prosecution to prove people guilty. The court ruled that the motion would be resolved when the matter is decided in the background. The defendant-appellee requested reconsideration of the resolution, but the court denied the motion providing that the parties comply with what has been resolved. Being so open the question, the defendant-appellee directed the City Prosecutor of Manila appealed and filed a complaint against the appellant for having forged the document Exhibit V1. The endorsement used the report to his assistant Francisco B. Albert and the officer started the preliminary investigation, hearing the evidence presented the defendant-appellee. After his presentation, the defendant requested the appellant to present its evidence, so this object and asked to postpone the investigation until this Court resolved the alleged forgery

of the document. The defendant rejected the proposal and postponing the appellant wrote a letter in which he reported that he was convinced the commission of the offense by the evidence presented by defendantappellee, and that if the appellant did not present their evidence would be submitted against the front the Court of First Instance of Manila the complaint for falsification of public document. That was when the appellant went to the Court of Appeals and presented the resource that is being considered. In his reply the Respondent contends that the question of whether Exhibit V-1 is genuine or fake is not harmful, nor the pendency of the case before this Court is an obstacle to the prosecution of the appellant for the crime of forgery of the document. He argues, moreover, that the power law has given to prosecute crimes can not be contralada or suspended by the courts. We declare that the theory underlying the appeal, as the City Prosecutor of Manila, is wrong. According to Article 3. , Chapter II, Title First, Book First, of the Spanish Criminal Enjuiciamente Act, which applies even in this jurisdiction with supplementary character and whose provisions are applied as a principle of law in everything they do not conflict or positive contradict any provision of any law (Almeida Tanco Chan et al. against Abaroa, 8 Phil., 174; Berbari against Concepcion et al., 40 Phil., 881) are referred civil and administrative issues proposals in prosecuted in the criminal case. The Spanish Legal Encyclopedia, Volume X, p. 228, edition of Seix, defines the issue, ruling saying that 'is that which arises in a lawsuit or cause whose resolution is logical history of the subject matter of litigation or cause and whose knowledge is for the court order or other jurisdiction. " The same article provides that, as a rule, the court hearing a criminal case has jurisdiction to decide questions referred to only the effect of repression, when such issues appear so closely linked to the offense which is rationally impossible separation. But Article 4. establishes an exception, and that is when the question is determinative of guilt or innocence, in which case the court hearing the criminal case should stop this and make it fail the question at trial civil or administrative. This is exactly what is happening now. The document forgery V-1, or rather, the facts are to it and its replacement during the ongoing trial directly affect the morals of the appellant as a member of the forum It is the duty of this Court determine whether it is guilty of bad practices, determination that is in this case the question of administrative character that must be solved separately in the administrative record given that in turn determine the guilt or innocence of the appellant in relation to criminal prosecution for the crime of forgery. When a civil case is pending before the

Supreme Court fianl promoted events that may lead to criminal prosecution for the crime of forgery of document while the initiation of administrative proceedings for misfeasance as the alleged offender forum member, bad practices involve administrative preliminary question to be resolved preferably in the administrative record because they determine both the guilt or innocence of the charge. The need to suspend Preliminary research has begun the appeal as well as the initiation of criminal prosecution for the crime of forgery of document V-1 is more apparent when one considers that the falsity of the document and its replacement is still sub-judice and if the Court decides that it is genuine and has not been replaced and therefore the appellant not guilty of bad practices, such failure would be in conflict with the opinion expressed by the appeal. Speaking in general terms, the power of the Prosecutor and his duty to prosecute crimes should not be controlled not constrained by the courts, but there is no doubt that this power can be regulated so as not to abuse it. When a member of the prosecution deviates from the law and impedes the proper administration of justice by prosecuting a person for acts constituting the offense that are sub-judice and which proposes an administrative question, it is the duty of the courts call attention and force him to suspend any criminal action until the administrative question is finally decided. The preliminary investigation is practicing used by one of his assistants is the procedure before the criminal action for the crime of forgery of document V-1, and the complaint with which he has threatened the plaintiff is going to start a criminal action. For this reason the appeal is justified by the appellant and the appeal should refrain from proceed with the preliminary investigation and file charges against the appellant for the crime of forgery of document V-1, until the Court has finally decided the motion for reconsideration of the decision adopted in the civil matter, motion for reconsideration is pending so far. Granted the appeal and the appeal is ordered to refrain from proceed with the preliminary investigation and to present case against the appellant for the crime of forgery of document V-1, until this Court finally resolved the motion for reconsideration that has been presented by the defendant-appellee in Case No. RG 46153, without costs. So ordered. Avancea, CJ, Diaz and Laurel, JJ., Villa-Real and Concepcion, JJ., took no part. Concur.

Separate Opinions MORAN, J., dissenting: The general rule is that when there is a civil matter and a criminal on the same crime or offense, the second should be before the first, for the reason that the forms of a criminal trial are the most apropos for an inquest crime, and not those of a civil suit. This rule has, however, an exception, and is referred to a civil matter referred. A civil matter is a preliminary character and should be resolved before a criminal matter when it concerns a fact distinct and separate crime, but so closely linked that determines guilt or innocence. For example, a civil action for nullity of a second marriage, is for preliminary and must be resolved before the criminal action for bigamy. The same civil action on property title must enjuicarse rather than a criminal action for damages to that property. The reason is that in these cases the forms of civil process, and not a trial or criminal, are the most apropos to prosecute, for example, the question of the validity or invalidity of a marriage.But in all these cases, the civil preliminary question relates to a dispute purely civil character but linked in such a way that relates to the crime on the criminal matter, that is determinative of the guilt or innocence. From which it decude that where, as in this case, the question is about the same civil criminalizes fact referred to the criminal matter, there is no question, and therefore governs the general rule that the criminal matter must be resolved before the civil. This under the assumption that counterfeiting is a matter necessarily involved in the civil case, which is incorrect. That question is foreign to the terms of the dispute which gave scope to civil matter, which can be decided without the need to declare whether or not such falsification. The criminal process, therefore, can be started without having to stop so the failure of civil matter, because both cases concern different issues. I will now proceed to prove the truth of these conclusions. The Spanish Criminal Procedure Act, as well the majority says, applies even in this country, but additionally, that is, in all cases where no legal provision opona any effect here. Article 114 of the Procedure Act is as follows: ART. 114. Promoted inquest criminal trial of a felony or misdemeanor, may not follow suit on the same act; suspending if he had, in the state it is found to be rested until final judgment in the criminal case.

Not necessary for the exercise of criminal action that preceded the civil originated from the same crime or misdemeanor. The provisions of this article is without prejudice to the provisions of ch. 2. No, Title 1. of this book, about the questions. According to this provision, the criminal matter must be resolved before the civil, unless the provisions concerning the questions in Chapter 2. No, Title 1. of that Spanish law. In that chapter title and the provision containing a general definition of what a "preliminary question", is Article 4. , which reads as follows: ART. 4. No. However, if the question was determinative of guilt or innocence, the court shall suspend the proceedings until ciminal resolution of her by whom it may concern, but may set a term not exceeding two months, for parties to come to court in civil or administrative litigation authority. After a period without the person having used prove the criminal court and raise his suspension following the procedure. In these trials will be part of the prosecution. Note that this legal provision is considered a civil matter of character reference and, therefore, must be resolved before the guilt or innocence "of the accused. Spanish Legal Encyclopedia says in part: This rule of procedural law, by virtue of which the criminal matter must be resolved before the civil matter, is an exception for civil matters of validity of a marriage or suppression of civil status (birth assumption, concealment or substitution of a child). These issues should be provided to the judge or court deferidas civil or ecclesiastical need to understand them in one of those orders and to its decision, which will be the basis for the failure of the criminal court, can not this make measure of any kind in inquest crime that may have been committed. . . . (Vol. X, p. 229.) We have said anteriomente, that in a criminal proceeding the Court may call to testify if a

crime has been noted and the person or persons responsible for it repute and impose the appropriate penalty, having to solve logical antecedent of these statements any question of civil or administration: in a criminal proceeding for an offense against property may be that the defendant denies the offense stated that the thing belongs, or that what is said to be received on deposit and affirm the defendant appropriated having been delivered or title loan purchase, or industrial property which fraud is attributed not just to be null and void that justifies the title. ( ID Id., p. 229.) The same Encyclopedia says elsewhere that: The general rule attributing to the criminal justice courts jurisdiction to determine civil or administrative issues that appear so closely linked to the offense that can not be separated from it, has an exception for the case that civil or administrative matter, in addition to be closely linked to the fact pursued, is determining the guilt or innocence of the accused. It may be that a charge of usurpation made the subject of a patent for invention or an industrial design, the person opposing the excecion that the title of patent or registration of title design are void for lack of objects in consisting of the new fact essential to its validity. Here is a question of determining the guilt or innocence, since the usurpation or fraud is based on a title whose validity challenges to the accused and one topic. The criminal procedure would have to consist in this case, rather than finding out the existence of crime and the person of the offender, in the civil matter if it is valid or invalid the title and, consequently, whether legally or not even until today the industrial property assumes disappointed. It quickly check to see that in the case of civil or administrative questions determining the guilt or innocence, the jurisdiction over them must yield in favor of the courts in charge of the civil or administrative litigation, because the forms of procedure to be applied are the most apropos for the prosecution of such matters and allow a range of contradiction and evidence has not established criminal proceedings to an end as concrete as the checking of an offense and the offender's inquest. . . . (Volume X, pages. 230231.)

Of all bounded it follows clearly that a preliminary matter, it is a matter of purely civil distinct and separate from the criminal, but so tied to it, that determines the presence or absence of one or more of the elements of the offense charged, and civil matter that should be resolved with preference in the civil court, because by their very nature, the validity or invalidity of a marriage, are more appropriate forms of civil procedure for trial, not the criminal trial. Another treatise states: If so that there is relationship of intimacy is necessary that the questions appear so attached to the punishable acts rationally their separation is impossible, is instead essential for the establishment of determining the relationship of cause, which are different and are completely separate these from that .So that relations are not conceived of this sort without the question arising from events prior to the offense charged and without the appreciation of these facts depends on circumstances entirely outside and independent to dileto same. Among the many examples we could submit verification of this assertion, we note one more matter to clarify. An individual is charged with violation of a deposit, and for his defense denies the existence of such contract. The civil preliminary question as to whether or not it has verified the deposit is a matter of fact independent of the crime; further relates to acts prior to the offense and is determinative of guilt or innocence, because if it is not proven the existence of deposit There can be no violation of this contract. (Reus, Criminal Procedure Law, Volume I, p. 9.) But when, as in this case, the civil matter is the same criminal matter, because both refer to the falsification of Exhibit V-1, there is no civil matter referred. In fact, no civil matter because even criminalizes the fact alleged in civil litigation does not cease to be criminal matter. It is, therefore, a criminal matter raised in a civil trial, in which case applies the general rule laid down in Article 114 of the Spanish Criminal Procedure Act, by virtue of which "promoted the trial of criminal inquest a crime or offense, shall not seguierse litigation (civil) on the same act , suspending if he had, in the state in which shall be found until a final judgment in the criminal case. " And this rule is supplemented by Article 514 of the Spanish Civil Procedure Act, which reads: "In the event that a party claiming the falsity of a document that may be of influence notary in litigation, criminal action entablare in discovery of the crime and its author, suspend the

litigation (civil) in the state in which it is until final enforceable in the criminal case. " All this is under the assumption that counterfeiting is a matter necessarily involved in the civil matter. But in truth, the alleged forgery is a substance foreign to the dispute giving rise to civil case No. 46153 RG. It is none of the issues raised by the parties in their pleadings, and is not before the lower court for its decision, for the alleged forgery was committed after the judgment already rendered against which to appeal filed before this High . It is therefore interesting to know how to act this Court on the forgery. If you have to act to find out if there really has been counterfeiting and who is to blame, can not do in the exercise of its appellate jurisdiction, since, as I said, this question has not been raised at first instance. Neither can the exercise of its original jurisdiction, it has not considered the matter as civil or criminal. I believe that the power falls to the Court is simply to find out if the document elevated to this superiority is different or not at first instance, to order, in case it is, that this document is authentic, if this is possible, or secondary evidence is supplied of its content, all in order for this Court, in exercising its appellate jurisdiction, which is the only one who has to decide the issue according to evidence presented actually in the lower court. I therefore believe that all Court proceedings in relation to the alleged forgery, should be directed to that single goal, without having to define criminal offenses and the corresponding responsibilities, issues that must be assigned to the appropriate government agency, endowed by the law of all the means and facilities for investigations of this nature. Perhaps the best procedure would return the civil case to lower court to determine whether the document submitted to the is distinct from that has been elevated to this Court, and to take steps to lueglo transmit to this Court authentic document or secondary evidence of its contents. But if the Court wants to do the inquest itself, must do so while avoiding any statement that directly or indirectly, may be a statement about the existence or nonexistence of crime and who is to blame. And if he has no choice but to do so, their conclusions should be considered as limited to the late civil matter and in connection with the repositioning of proof omitted, and should not be taken as conclusive and binding on the criminal court to be understand the criminal process that wants to institute. It is not fair either for public vengeance or for the defendant, who opened a single incident in a collateral civil asuto only for the repositioning of a test distracted, decided in a final and conclusive on the question of innocence or guilt of a defendant. The Legal Encyclopedia quoted above says:

In the matter of the questions is a general principle of procedural law that the civil court is quite incompetent in criminal matters, so that when civil litigation or administrative disputes arising as a logical antecedent of the judgment the question of the existence of a crime, the judge must suspend the proceedings until the courts of criminal jurisdiction has ruled on this issue that is detrimental to the civil litigation or administrative litigation. . . . ( ID Id., p. 228.) But Manresa says that while there is a crime if the civil judgment may be based on other reasons, the judgment may be issued without prejudice to the criminal process: . . . Note that only applies to the case where the judgment of the lawsuit is to be based exclusively on the assumption of the existence of a crime, so that even if it exists and has to be formed because of trade, if the judgment can be based on other reasons, the judgment should not be stopped. . . . (Code of Civil Procedure, Volume 2, p. 121.) It is therefore my conclusion that the alleged falsaficacion is not a matter to be decided in the civil case No. 46153 and preferably at criminal proceedings that the prosecution wish to initiate. And the criminal proceedings shall not take the effect of suspending the decision of the civil case, because the decision of this is not necessary to determine the existence or nonexistence of the offense to which he refers. I did not stop to refute the statement of most of that research for misfeasance against a lawyer is a preliminary question that must precede a criminal proceeding against that same lawyer, for such a statement carries with it its own refutation, except that is in constant conflict with the practice followed by this Court. An administrative investigation of this nature is based on assumptions and have different objectives from those of a criminal prosecution. The other statement that the forgery should be considered preliminary question because this sub-judice , it is wrong for me too. First, this question is not sub-judice , as I demonstrated. And secondly, even if it were not so it is referred. If so, filed a civil action on crime, and not be suspended in any case even if criminal proceedings to be taken, because the crime is already sub-judice . And this is contrary to Article 114 of the Spanish Criminal 8

Procedure Act, which, according to the majority, ruled the Philippines with supplementary character. For these reasons, I am of the opinion that criminal proceedings can be followed without having the effect of suspending the decision of the civil matter. EN BANC G.R. No. L-46440 January 18, 1939

President was the first to play politics, publicly expressing his preference for candidates of his liking; and with the President all other officials of the government also moved, taking part in electoral campaigns. With the government machinery feverishly functioning to flatten the opposition and prevent candidates supported by the people from going to the National Assembly, and with frauds and violations of all rules of the civil service to push the victory the candidates of the Nacionalista Party and the administration, all constructive opposition in the country is useless. In past elections, all the municipal and city mayors have been mobilized to insure the victory of the candidates of the administration, depriving the people of their right to vote for candidates of their own choosing. Even members of the cabinet moved, one of them, the Hon. Eulogio Rodriguez going to the extent of speaking at meetings in the Province of Rizal to counteract the avalanche of votes for the opposition, instead of staying in his office in the government. The opposition is struggling within the law, but the party in power uses means that are not worthy of gentlemen in order that it may predominate in the government forever; never has it triad to fight fairly. It may be used that the President of the United States is also making electoral campaigns, but the situation in the United States is different. There the President is allowed to run for reelection while in the Philippines the Constitution wisely provides against the reelection of the President. It is reasonable to believe that the President is from this moment paying the way for his reelection. It is to be feared that the new National Assembly will change this wise provision of our Constitution to permit the reelection of President Manuel L. Quezon. On November 18, 1938, the day following the publication of the foregoing statement, the petitioner received a letter, Annex A, signed as follows: "By authority of the President: Jorge B. Vargas, Secretary to the President," in which letter the statement is quoted in full and the petitioner is informed thus:

CARMEN PLANAS, petitioner, vs. JOSE GIL, Commissioner of Civil Service, respondent. Juan Sumulong, Vicente Sotto, Godofredo Reyes, Wenceslao Q. Vinzons, Lorenzo Sumulong and Jose de Leon for petitioner. Office of the Solicitor-General Ozaeta for respondent. LAUREL, J.: This is an original action of prohibition instituted in this court by which the petitioner seeks to enjoin the respondents Commissioner of Civil Service from conducting the investigation ordered by authority of the President of the Philippines. The case arose as a result of the publication in one of the local dailies of a statement in which the petitioner, then and now a member of the municipal board of the City of Manila, criticized the acts of certain government officials in connection with the general election for Assemblymen held on November 8, 1938. The statement as published in the issue of La Vanguardia of November 17, 1938, is translated as follows: All opposition efforts in the country are useless just as all movement toward the unification of the opposition as long as in the opposition group there are people who present their candidacies and then speculate on these candidacies, offering them to the highest bidder. In Manila, the opposition should have won the November 8 elections, but lost instead because of a disastrous division due to people who commercialized their candidacies. The Constitution prohibits the reelection of the President precisely so that the President may devote all his time to the administration of public affairs for the welfare of the people, but the

In the above statement, you appear to make the following charges: (1) That the President of the Philippines has violated the Constitution in that he has taken part in politics, expressing his preference for the candidates of the Nacionalista Party; (2) That the whole government machinery has been put in action to prevent the election to the National Assembly of the candidates of the people; (3) That the candidates of the Nacionalista Party and of the administration have won the election through frauds and violations of the civil service rules; (4) That the administration does not permit the people to freely elect the candidates of their choice. You are hereby directed to appear before the Commissioner of Civil Service, either alone or accompanied by counsel, at 9 o'clock a. m., on November the 22nd, to prove the statements made by you. Failure to sustain your charges or to prove that they have been made in good faith will be considered sufficient cause for your suspension or removal from office. At the appointed time, the petitioner, accompanied by her counsel, appeared at the office of the respondent and delivered to him a letter, Annex B, in which she voiced objection to the authority of the respondent to conduct the investigation. The respondent Commissioner did not desist from proceeding with the investigation, but announced before adjourning the hearing of November 22nd that he would decide the question raised as to his jurisdiction on November 26, 1938. It was at this state of the investigation that the petitioner filed in this court her original petition for prohibition of November 25, 1938, in which she at the same time prayed for the issuance of a writ of preliminary injunction enjoining the respondent commissioner from continuing with the investigation. The petition for the issuance of a writ of preliminary injunction was denied by resolution of this court dated November 25, 1938. The next day the petitioner requested the respondent, in writing (Annex D), to refrain from making any ruling on the question of his jurisdiction to investigate the petitioner and to abstain from making any further step in connection with said investigation until the jurisdictional issue could be finally passed upon by this court. On the same day, the request of the petitioner was denied and the respondent ruled that he had jurisdiction to proceed with the investigation (Annex E.) The respondent also notified the petitioner to appear before him on Saturday, December 3, 1938, and to testify in her behalf and produce such other evidence as she might desire to present in support of the charges contained in her 9

statement of November 17, 1938. The original petition of November 25th was amended by another of December 2nd. The amendment was allowed by this court. The Solicitor-General filed his amended answer accordingly. Petitioner contends in her amended petition: (a) That the respondent is absolutely without jurisdiction to investigate petitioner with a view to her suspension or removal in connection with her statement of November 17th; (b) That the said investigation with a view to petitioner's suspension or removal is against Article VII, sec. 11 (1) of the Constitution of the Philippines and is not warranted by any statutory provision; (c) That even under the statutes in force before the approval of the Constitution of the Philippines, petitioner, as Councilor of the City of Manila, cannot be investigated administratively with a view to her suspension or removal except for acts or conduct connected with the discharge of her official functions; (d) That petitioner, as an elective official, is accountable for her political acts to her constituency alone, unless such acts constitute offenses punishable under our penal laws, and not to execute officials belonging to a party opposed to that to which petitioner is affiliated; (e) That petitioner's statement of November 17th made be her as a private citizen and in the exercise of her right to discuss freely political questions cannot properly be the subject of an administrative investigation had with a view to her suspension or removal, and is only cognizable by our courts of justice in case the contents of said statement infringe any provision of our Penal Code; (f ) That if petitioner's statement of November 17th, as asserted in the Vargas letter of November 21st Annex "C", constitute sedition or any other criminal offense in that said statement "tends to create general discontent, and hatred among the people against their government, to make them lose faith in the effectiveness of lawful processes to secure a change in the control of the government, and to the present

the next National Assembly as an illegal body, constituted by men who been elected through wholesale frauds and violations of the civil service rules", then petitioner's responsibility is a matter that should be heard and decided by the competent courts in a trial publicly and impartially conducted, and should not be the subject of an administrative investigation with a view to suspension or removal held behind closed doors, with the power of final decision resting in the hands of the very officials imputing seditious or other criminal utterances to the petitioner; (g) That the authority sought to be conferred on respondent by means of the two letters Annexes A and C both signed `By authority of the President: Jorge B. Vargas, Secretary to the President' is without any force or effect, since the powers and prerogatives vested in the President of the Philippines by our Constitution and by our laws can be exercised by the President alone, and cannot be delegated to Mr. Jorge B. Vargas or to any other person; (h) That the proposed investigation with a view to petitioner's suspension or removal by his Honorable Court, would constitute an exercise of arbitrary, inquisitorial, unlawful, and oppressive powers on the part of respondent, tending to the suppression of the constitutional right of petitioner, as a citizen, to express freely and without fear of political persecution her honest opinions concerning the policies and political conduct of government officials. Petitioner prays: (1) That a writ of preliminary injunction be forthwith issued directing the respondent Commissioner of Civil Service to desist from the investigation sought to be conducted by him of petitioner, with a view to her suspension or removal, in connection with her statement published November 17th, until further orders of this Honorable Court; (2) That upon due hearing the respondent be permanently prohibited from proceeding further in connection with said investigation;

(3) That the orders contained in the two letters of Mr. Jorge B. Vargas (Annex "A" and "C") and the respondent's resolution dated November 26, 1938 (Annex "E"'), under which respondent seeks to undertake the investigation so many times referred to herein, be declared arbitrary and unconstitutional, and therefore without any force or effect; (4) For costs of the petitioner and for such other remedy as to this Honorable Court may seem just and equitable. Upon the other hand, the Solicitor-General contends in his amended answer: (a) That respondent not only has jurisdiction but is in duty bound to investigate the charges contained in the petitioner's statement published on November 17, 1938, by virtue of and pursuant to the order of His Excellency, the President of the Philippines (par. 3); (b) That the power to order an investigation is vested in the President of the Philippines by section 11 (1) of Article VII of the Constitution and section 64 (c) of the Revised Administrative Code (Id.); (c) That the question of whether or not the good of the public service requires the investigation in question is a matter on which the opinion of the Chief Executive is conclusive and not subject to review by the courts (par. 4, [b]); (d) That an administrative investigation of any act or conduct of any person in the government service is independent and exclusive of any judicial action that the interested parties may institute arising from the same act or conduct (par. 4, [c]); (e) That petitioner's theory that an elected provincial or municipal official is accountable to his or her constituency alone and is not subject to any administrative investigation but only to a criminal prosecution in court, has no basis either in law or in precedent (par. 5, [a]); (f ) That such investigation is neither arbitrary nor unlawful nor inquisitorial because sanctioned by 10

the Constitution and statutory provisions (par. 5, [b]); (g) That the petition does not state a cause of action nor does it appear that petitioner has suffered any grievance that calls for the court's intervention, for it is not alleged that petitioner has been removed or suspended from office or that she has in any way been deprived of any civil or political right (par. 7, [a]); (h) That the present action is premature and that there is no jurisdiction for the court to entertain the same (par. 9); and . (i) That this court has no jurisdiction over the case under the doctrine of separation of powers (par. 10). The Solicitor-General, under the last paragraph (par. 10) of his amended answer, raise the question of jurisdiction of this court over the acts of the Chief Executive. He contends that "under the separation of powers marked by the Constitution, the court has no jurisdiction to review the orders of the Chief Executive, evidenced by Annex A and Annex C of the petition, which are of purely administrative character." Reliance is had on the previous decisions of this court: Severino vs. GovernorGeneral ([1910], 16 Phil., 366); Abueva vs. Wood([1924], 45 Phil., 612); and Alejandrino vs. Quezon ([1924], 46 Phil., 83). Although this is the last point raised by the Government in its answer, it should, for reasons that are apparent, be first to be considered. If this court does not have jurisdiction to entertain these proceedings, then, the same should be dismissed as a matter of course; otherwise, the merits of the controversy should be passed upon and determined. It must be conceded that the acts of the Chief Executive performed within the limits of his jurisdiction are his official acts and courts will neither direct nor restrain executive action in such cases. The rule is non-interference. But from this legal premise, it does not necessarily follow that we are precluded from making an inquiry into the validity or constitutionality of his acts when these are properly challenged in an appropriate legal proceeding. The classical separation of governmental powers, whether viewed in the light of the political philosophy of Aristotle, Locke, or Montesquieu, or of the postulations of Mabini, Madison, or Jefferson, is a relative theory of government. There is more truism and actuality in interdependence than in independence and separation of powers, for as observed by Justice Holmes in a case of Philippine origin,

we cannot lay down "with mathematical precision and divide the branches into watertight compartments" not only because "the great ordinances of the Constitution do not establish and divide fields of black and white" but also because "even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other." (Springer vs. Government [1928], 277 U. S., 189; 72 Law. ed., 845, 852.) As far as the judiciary is concerned, while it holds "neither the sword nor the purse" it is by constitutional placement the organ called upon to allocate constitutional boundaries, and to the Supreme Court is entrusted expressly or by necessary implication the obligation of determining in appropriate cases the constitutionality or validity of any treaty, law, ordinance, or executive order or regulation. (Sec. 2 [1], Art. VIII, Constitution of the Philippines.) In this sense and to this extent, the judiciary restrains the other departments of the government and this result is one of the necessary corollaries of the "system of checks and balance" of the government established. In the present case, the President is not a party to the proceeding. He is neither compelled nor restrained to act in a particular way. The Commissioner of Civil Service is the party respondent and the theory is advanced by the Government that because an investigation undertaken by him is directed by authority of the President of the Philippines, this court has no jurisdiction over the present proceedings instituted by the petitioner, Carmen Planas. The argument is farfetched. A mere plea that a subordinate officer of the government is acting under orders from the Chief Executive may be an important averment, but is neither decisive nor conclusive upon this court. Like the dignity of his high office, the relative immunity of the Chief Executive from judicial interference is not in the nature of a sovereign passport for all the subordinate officials and employees of the Executive Department to the extent that at the mere invocation of the authority that it purports the jurisdiction of this court to inquire into the validity or legality of an executive order is necessarily abated or suspended. The facts inSeverino vs. Governor-General, supra, Abueva vs. Wood, supra, and Alejandrino vs. Quezon, supra, are different, and the doctrines laid down therein must be confined to the facts and legal environment involved and whatever general observations might have been made in elaboration of the views therein expressed but which are not essential to the determination of the issues presented are mere obiter dicta. While, generally, prohibition as an extraordinary legal writ will not issue to restrain or control the performance of other than judicial or quasi-judicial functions (50 C. J., 658), its issuance and enforcement are regulated by

statute and in this jurisdiction it may issue to any inferior tribunal, corporation, board, or person, whether exercising functions judicial or ministerial, whose acts are without or in excess of jurisdiction. (Secs. 516 and 226, Code of Civil Procedure.) The terms "judicial" and "ministerial" used with reference to "functions" in the statute are undoubtedly comprehensive and include the challenged investigation by the respondent Commissioner of Civil Service, which investigation if unauthorized and is violated of the Constitution as contended is a fortiori without or in excess of jurisdiction. The statutory rule in this jurisdiction is that the writ of prohibition is not confined exclusively to courts or tribunals to keep them within the limits of their own jurisdiction and to prevent them from encroaching upon the jurisdiction of other tribunals, but will issue, in appropriate cases, to an officer or person whose acts are without or in excess of his authority. Not infrequently, "the writ is granted, where it is necessary for the orderly administration of justice, or to prevent the use of the strong arm of the law in an oppressive or vindictive manner, or a municipality of actions." (Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil., 304, 307; Aglipay vs. Ruiz [1937], 35 Off. Gaz., 2164.) This court, therefore, has jurisdiction over the instant proceedings and will accordingly proceed to determine the merits of the present controversy. As is seen from the foregoing relation of facts various legal questions are propounded. Reducing, however, the issues to what is considered is the fundamental legal proposition presented, we are asked in these proceedings to prohibited the respondent Commissioner of Civil Service from conducting or continuing with the investigation ordered by authority of the President of the Philippines. It is not denied that the President did authorize the issuance of the order, but it is contended "that the said investigation with a view to petitioner's suspension or removal is against Article VII, sec. 11 (1) of the Constitution of the Philippines and is not warranted by any statutory provision." (Par. XV [b], amended petition.) It, therefore, become necessary to inquire into the constitutional and legal authority of the President to order the investigation which has given rise to the present controversy. A perusal of our Constitution will show that extensive authority over the public service is granted the President of the Philippines. Article VII of the Constitution begins in its section 1 with the declaration the "The Executive power shall be vested in a President of the Philippines." All executive authority is thus vested in him, and upon him devolves the constitutional duty of seeing that the laws are "faithfully executed." (Art. VII, sec. 11, subsec. 1, last clause.) In the fulfillment of this duty which he cannot evade, he is granted specific and express powers and 11

functions. (Art. VII, sec. 11.) In addition to these specific and express powers and functions, he may also exercise those necessarily implied and included in them. (Myers vs. United States [1926], 272 U. S., 52; 71 Law. ed., 160; 47 Sup. Ct. Rep., 21; Willoughby, Constitution of the United States, sec. 953, citing Taft's Our Chief Magistrate and His Powers, p. 139.) The National Assembly may not enact laws which either expressly or impliedly diminish the authority conferred upon the President of the Constitution. (Cf. Concepcion vs.Paredes [1921], 42 Phil., 599.) The Constitution provides that the President "shall have control of all the executive departments, bureaus, and offices" (Art. VII, sec. 11 [1], first clause) and shall "exercise general supervision over all location governments as may be provided by law" (Ibid, second clause). This power of control and supervision is an important constitutional grant. The President in the exercise of the executive power under the Constitution may act through the heads of the executive departments. The heads of the executive departments are his authorized assistants and agents in the performance of his executive duties, and their official acts, promulgated in the regular course of business, are presumptively his acts. (Runkle vs.United States [1887], 122 U. S., 543; 30 Law. ed., 1167; 7 Sup. Ct. Rep., 1141. See also U. S. vs. Eliason [1839], 16 Pet., 291; 10 Law. ed., 968; Jones vs. U. S. [1890], 137 U. S., 202; 34 Law. ed., 691; 11 Sup. Ct., Rep., 80; Wolsey vs. Chapman [1880], 101 U. S., 755; 25 Law. ed., 915; Wilcox vs Jackson [1836], 13 Pet., 498; 10 Law. ed., 246.) The power of removal which the President may exercise directly and the practical necessities of efficient government brought about by administrative centralization easily make the President the head of the administration. (Willoughby, Constitution of the United States, Vol. II, 2nd ed., sec. 959.) Independently of any statutory provision authorizing the President to conduct an investigation of the nature involved in this proceeding, and in view of the nature and character of the executive authority with which the President of the Philippines is invested, the constitutional grant to him of power to exercise general supervision over all local governments and to take care that the laws be faithfully executed must be construed to authorized him to order an investigation of the act or conduct of the petitioner herein. Supervision is not a meaningless thing. It is an active power. It is certainly not without limitation, but it at least implies authority to inquire into facts and conditions in order to render the power real and effective. If supervision is to be conscientious and rational, and not automatic and brutal, it must be founded upon a knowledge of actual facts and conditions disclosed after careful study and investigation.

Viewed from the totality of powers conferred upon the Chief Executive by our Constitution, we should be reluctant to yield to the proposition that the President of the Philippines who is endowed with broad and extraordinary powers by our Constitution, and who is expected to govern with a firm and steady hand without vexatious or embarrassing interference and much less dictation from any source, is yet devoid of the power to order the investigation of the petitioner in this case. We should avoid that result. Our attention has been directed to the fact that, with reference to local governments, the Constitution speaks of general supervision which is distinct from the control given to the President over executive departments, bureaus and offices. This is correct. But, aside from the fact that this distinction is not important insofar as the power of the President to order the investigation is concerned, as hereinabove indicated, the deliberations of the Constitutional Convention shows that the grant of the supervisory authority of Chief Executive in this regard was in the nature of a compromise resulting from the conflict of views in that body, mainly between the historical view which recognizes the right of local selfgovernment (People ex rel. Le Roy vs. Hurlbut [1871], 24 Mich., 44) and the legal theory which sanctions the possession by the state of absolute control over local governments (Booten vs. Pinson, L. R. A. [N. S., 1917-A], 1244; 77 W. Va., 412 [1915]. The result was the recognition of the power of supervision and all its implications and the rejection of what otherwise would be animperium in imperio to the detriment of a strong national government. Apart from the constitutional aspect, we find that section 64 of the Administrative Code of 1917 provides as follows: In addition to his general supervisory authority, the Governor-General (President) shall have such specific powers and duties as are expressly conferred or imposed on him by law and also, in particular, the powers and duties set forth in this chapter. Among such special powers and duties shall be: xxx xxx xxx

or person by whom such investigation shall be conducted. This provision of the law, in existence before the taking effect of the Constitution, still subsists. It is not inconsistent with the Constitution and has not been abrogated or repealed by the National Assembly. (Seesec. 2, Art. XV, Constitution.) It is next urged that assuming the power of the President to order the investigation, that investigation should be in accordance with law; that the petitioner as an elective official can be proceed against administratively only on the grounds specifically stated in the law, namely, disloyalty, dishonesty, oppression, misconduct, or maladministration ion office; and that as an elective official she is responsible for her political acts to her constituency alone. At the risk of repetition, it should be observed that in the letter addressed by Secretary Vargas, by authority of the President, to Miss Planas, the latter is informed as follows: "In the above statement, you appear to make the following charges: (1) That the President of the Philippines has violated the Constitution in that he has taken part in politics, expressing his preference for the candidates of the Nacionalista Party; (2) That the whole government machinery has been put in action to prevent the election to the National Assembly of the candidates of the people; (3) That the candidates of the Nacionalista Party and of the administration have won the election through frauds and violations of the civil service rules; (4) That the administration does not permit the people to freely elect the candidates of their choice"; and in the letter she is directed to appear before the Commissioner of the Civil Service to prove the statement made by her. In the letter designating the respondent commissioner as investigator of the petitioner, it is stated: "The charges contained in the foregoing statement tend to create general discontent, and hatred among the people against their government, to make them lose faith in the effectiveness of lawful processes to secure a change in the control of the government, and to present the next National Assembly as an illegal body, constituted by men who have been elected through wholesale frauds and violations of the civil service rules. The interest of the public service requires that these charges be investigated, so that, if found to be true, appropriate action may be taken against the parties alleged to have been guilty of illegal acts, and if found untrue and made without justifiable motives, the party making them may be proceeded against in accordance with section 2440, in connection, with section, 2078, of the Revised Administrative Code." Assuming that this is not one of the grounds provided by law for which the petitioner may be investigated administratively (sec. 2078, Rev. Adm. 12

(c) To order, when in his opinion the good of the public service so requires, an investigation of any action or the conduct of any person in the Government service, and in connection therewith to designate the official, committee,

Code), there is weight in the argument that the investigation would still be in order if for no other purpose than to cause a full and honest disclosure of all the facts so that, if found proper and justified, appropriate action may be taken against the parties alleged to have been guilty of the illegal acts charged. This is essential to render effective the authority vested in the President by the Constitution to "take care that the laws be faithfully executed." (Sec. 11, par. 1, Art. VII.) The enforcement of the law and the maintenance of peace and order are primarily an executive obligation. The declaration that the President should "take care that the laws be faithfully executed" is more an imposition of an obligation than a conferment of power. His oath requires him to "faithfully and conscientiously fulfill" his duties as President, "preserve and defend" the Constitution and "execute" the law. This duty of the Executive to see that the laws be faithfully executed is not limited to the enforcement of legislative acts or the express terms of the Constitution but also includes the due enforcement of rights, duties, obligations, prerogatives and immunities growing out of the Constitution itself and of the protection implied by the nature of the government under the Constitution. (Cunningham vs. Neagle, 135 U. S., 1; 34 Law. ed., 55.) Petitioner contends that she has not abused the right of free speech, and in this connection directs our attention to the provision of section 1 (pars. 1 and 8) of the bill of Rights. She also urges that " in the supposition that the statement in question is libelous . . ., the corresponding criminal or civil action should be brought in the courts of justice at the initiative, not of the government, but of the individuals claiming to have been defamed by the statement." (P. 11, printed memorandum of the petitioner.) We are vigilantly alive to the necessity of maintaining and protecting the constitutional guaranty of freedom of speech and of the press, no less than the right of assembly and petition which, according to Stimson (The American Constitution As It Protects Private Rights, 152), is its origin rather than its derivation. We do not forget that when repression of political and religious discussion became intense when censorship of the press was resorted to most vigorously by the Long Parliament in England John Milton, that great historiographer of Cromwell, in hisAreopagitica, denounced the suppression of truth and appealed for "the liberty to know, to utter, and to argue freely according to conscience, above all liberties" ("Areopagitica", 73, 74, Ambler's Reprint). And this court has had occasion to vindicate this right, and it is now a settled doctrine that the official conduct and the policies of public officials can be criticized (U. S. vs. Bustos, 37 Phil., 731), and that criticism of the constitution and legislation, of government measures or policies cannot be

suppressed or prevented (U. S. vs. Perfecto, 43 Phil., 225), unless the intention be to incite rebellion and civil war (Cooley, Constitutional Limitations, 614). In the present case, however, the petitioner is not denied the right, nor is she being investigated because she had exercised that right. She has a perfect right to criticize the Government, its administration, its policies and officials, but she may not, on the plea ]of freedom of speech and of the press, impute violations of law and the commission of frauds and thereafter fold her arms and decline to face an investigation conducted to elicit the truth or falsity of the charges formulated by her. Otherwise, the guarantee which, in the language of Wendell Phillips, is "at once the instrument, and the guarantee, and the bright consummate flower of all liberty" would degenerate into an unbridled license, and render the Government powerless to act. The petition is hereby dismissed, with costs against the petitioner. So ordered. Avancea, C.J., Villa-Real, Concepcion, JJ., concur. EN BANC G.R. No. L-20479 February 6, 1925 ET Internal AL., petitioners, Revenue, ET Imperial, Diaz, and

The petitioners are Chinese merchants claiming to represent themselves and all other persons similarly situated and affected, particularly twelve thousand Chinese merchants. The respondents, against whom the petition for prohibition and injunction is directed, are the Collector of Internal Revenue, the Fiscal of the City of Manila, and Honorable Pedro Concepcion, Judge of First Instance of Manila. The allegations of the petition center on the unconstitutionality of Act No. 2972 abovementioned. To the petition (later amended), a demurrer was interposed by the respondents which met squarely the main issue of constitutionality, while raising, in addition, the preliminary question of jurisdiction. Following oral argument, the court overruled respondents' demurrer and required them to answer. To respondents' answer to the amended petition, petitioners presented a demurrer. In order that the court might be assisted by having before it all possible facts and circumstances which might aid it in arriving at a correct conclusion, the parties were permitted to offer evidence to substantiate their claims. Nearly one thousand pages of testimony, more or less relevant to the issue, have resulted. While all of this testimony has been gone over with painstaking care, it is not feasible for the court to encumber the decision with rulings on the multitudinous objections which have perfunctorily been raised before the commissioner. Before passing to our principal task, it is necessary to say something about the preliminary point of jurisdiction argued by counsel, relating to the propriety of the constitutional question being decided in original proceedings in prohibition. The Supreme Court is granted both 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. (Code of Civil Procedure, sec. 516.) It is a jurisdiction, however, which must be exercised circumspectly, for otherwise, the court would usurp the powers of judges of First Instance. The law having given to judges of First Instance jurisdiction to try criminal cases, the appellate court should not meddle with the initiation or trial of such cases, except for good reasons, and should not permit the substitution of extraordinary proceedings for appeal. As before held by this court, and by the Federal courts, equity has power, to be exercised in power cases, to 13

YU CONG ENG, vs. W. TRINIDAD, Collector of AL., respondents.

Gabriel La O, Palma and Leuterio and Gibbs and McDonough for petitioners. The City Fiscals Revilla, Guevara and Felix for respondents. MALCOLM, J.: The issue in these proceedings is the validity of Act No. 2972 of the Philippine Legislature, popularly known as the Chinese Bookkeeping Law. It is a question of paramount importance which the record shows, has been laid before this court following the failure of diplomatic negotiations and executive pressure to secure from the local lawmaking body either the repeal of the law or a modification of its provisions. It is, moreover, a question which, extensive argument and original investigation disclose, stands in the shadowland betwixt constitutionality and unconstitutionality, to the solution of which we propose to give careful consideration.

restrain criminal prosecutions under unconstitutional statutes, and to grant preliminary injunctions where the constitutionality of a given penal law is doubtful and fairly debatable, and permanent injunctions where the laws are held invalid. The remedy by injunction to restrain the enforcement of unconstitutional statutes or abuse of authority under a valid statute, seems to be limited to cases where property rights are threatened with irreparable injury or where persons would be subjected to a multiplicity of suits. A more complicated question arises, with reference to what stage of a threatened criminal prosecution, an accused person shall have the right to test the validity of a criminal statute by means of original proceedings presented in the appellate court. We believe the correct principle was announced in Cadwallader-Gibson Lumber Co. vs. Del Rosario ( [1913], 26 Phil., 192). In other words, as a general rule, the question of constitutionality must be raised in the lower court and that court must be given an opportunity to pass upon the question before it may be presented to the appellate court for resolution. Yet occasionally, under a recently enacted statute affecting numerous persons and extensive property rights, liable to give rise to a multiplicity of actions and numerous prosecutions, it is proper, right at the threshold of a prosecution, to have the validity of a given law determined in the interest of the accused and of the public, so as to permit of the orderly administration of justice. (Ex parte Young [1908], 209 U.S., 123; Truax vs. Raich [1915], 239 U. S., 33; Wilsonvs. New and Ferris [1917], 243 U. S., 332; Hammer vs. Dagenhart [1918], 247 U.S., 251; International News Service vs. Associated Press [1918], 248 U.S., 215; C. A. Weed & Co. vs. Lockwood [1920], 255 U.S., 104; Terrace vs. Thompson [1923], 263 U.S., 197; Young vs. Rafferty [1916], 33 Phil., 556; Kwong Sing vs. City of Manila [1920], 41 Phil., 103; Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil., 304; and Fleischmann, Injunctions Restraining Prosecution Under Unconstitutional Statutes, 9 American Bar Associations Journal, March, 1923, p. 169.) 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. We come then to take up the question of the validity of Act No. 2972. Said Act reads as follows:

No. 2972. AN ACT TO PROVIDE IN WHAT LANGUAGE ACCOUNT BOOKS SHALL BE KEPT, AND TO ESTABLISH PENALTIES FOR ITS VIOLATION. Be it enacted by the Senate and Representatives of the Philippines in assembled and by the authority of the same: House of Legislature

SECTION 1. It shall be unlawful for any person, company, partnership or corporation engaged in commerce, industry or any other activity for the purpose of profit in the Philippine Islands, in accordance with existing law, to keep its account books in any language other than English, Spanish or any local dialect. SEC. 2. Any person violating the provisions of this Act shall, upon conviction, be punished by a fine of not more than ten thousand pesos, or by imprisonment for not more than two years or both. SEC. 3. This Act shall take effect on November first, nineteen hundred and twenty-one. Approved, February 21, 1921. Subsequently, pursuant to the provisions of Act No. 2998, Act No. 2972 was made to take effect on January 1, 1923. But due to the unavailing efforts of the Secretary of War, the present Governor-General, and the Chinese Community to have Act No. 2972 repealed, so counsel for the petitioners intimates, its enforcement was suspended until the adjournment of the Legislature in February, 1923. On March 2, 1923, the agents of the Bureau of Internal Revenue, in the exercise of their legitimate functions, inspected the books of account of the Chinese merchant Yu Cong Eng. Upon finding that said books were not kept in accordance with their understanding of the provisions of Act No. 2972, they took possession of the merchant's books and referred the matter to the city fiscal of Manila for appropriate action. The city fiscal, considering that Yu Cong Eng had committed a violation of the law, on March 7, 1923, caused an information to be filed, subscribed, and sworn to before Judge of First Instance Concepcion, thereby giving rise to criminal case No. 25551 of the Court of First Instance of Manila. This information alleged in substance that the accused merchant had kept his books of

account "only in Chinese, instead of keeping or causing them to be kept in English, Spanish, or any local dialect, thus rendering it difficult for the agents and authorized representatives of the Government of the Philippine Islands and of the City of Manila, to examine and inspect the aforementioned books of account, thereby preventing and hindering the investigation and determination of all the amount that said accused was, is, or will be under obligation to pay for licenses, permits, and taxes." A warrant of arrest was issued by the Judge of First Instance before whom the information was filed, and in compliance therewith, the accused merchant, now become the instant petitioner, was arrested. The antecedents of these proceedings, therefore, do not affect directly any other person except the petitioner Yu Cong Eng who says that he neither reads, writes, nor understands the English or Spanish language or any local dialect, although inferentially affecting all other merchants in a like situation. To properly appreciate the situation, we must go back a little further into the history of the case and must have before us the applicable provisions of Philippine law. The sales tax has been in force in the Philippines for a number of years. Our law provides for privilege taxes to be levied on certain businesses and occupations. These percentage taxes on business are payable at the end of each calendar quarter in the amount lawfully due on the business transacted during the past quarter. It is made the duty of every person conducting a business subject to such tax, within the same period as is allowed for the payment of the quarterly installments of the fixed taxes without penalty, to make a true and complete return of the amount of the receipts or earnings of his business during the preceding quarter and pay the tax due thereon. All merchants not specifically exempted must pay a tax of one and one-half per cent on the gross value in money of the commodities, goods, wares, merchandise sold, bartered, exchanged, or consigned abroad by them, such tax to be based on the actual selling price or value of the things in question at the time they are disposed of or consigned. (Administrative Code, secs. 1453 et seq.; Act No. 3065.) The income tax has also been established here for sometime, first pursuant to an Act of Congress and later pursuant to an Act of the Philippine Legislature (Act No. 2833, as amended by Act No. 2926). The customary returns are required from individuals and corporations. The tax is computed and the assessments are made by the Collector of Internal Revenue and his agents. 14

The sales tax and the income tax furnish a substantial part of the revenue. Roughly speaking, about P10,000,000 from the sales tax and about P2,000,000 from the income tax are secured annually. (Exhibit 13.) Any appreciable leaks in these sources of governmental revenue would be highly undesirable. At the time the Internal Revenue Law of the Philippine Islands was originally enacted, the Spanish Code of Commerce was in force, and this Code still remains the centerpiece of our commercial system, although considerably battered by amendatory laws. The Code of Commerce provides that merchants shall keep: (1) A book of inventories and balances; (2) a daybook; (3) a ledger; (4) a copying book for letters and telegrams; and (5) the other books required by special laws. These books are supposed to be presented by merchants to a justice of the peace for authentication. Merchants may furthermore keep other books that they consider advisable, according to the system of bookkeeping adopted. (Code of Commerce, arts. 33 et seq.; Administrative Code, sec. 214; Blanco, Derecho Mercantil, Tomo 1, pp. 561, 562.) The Spanish Code of Commerce, it is thus seen, is silent as are all the codes which follow the French system, regarding the language in which books of account must be kept. Under the provisions of the Code of Commerce and of the Internal Revenue Law, the Collector of Internal Revenue had authority "to require the keeping of a daily record of sales. No one could say with any certainty what the amount of the tax would be without such data." (Young vs. Rafferty, supra.) The collector of Internal Revenue was also granted the power to make regulations prescribing the manner in which the proper books, invoices, and other papers shall be kept, and entries therein made by the persons subject to the merchant's tax. (Act No. 2339, secs. 5, 6 [j]; Administrative Code, sec. 1424 [j].) Taking advantage of his supposed authority, pursuant to the above cited provisions of law, the Collector of Internal Revenue issued a circular letter on October 8, 1914, approved by the Secretary of Finance and Justice, requiring every merchant and the manufacturer with certain specified exceptions, who was subject to the merchant's tax, to keep a record of their daily sales either in the English or the Spanish language. The validity of this regulation was challenged in the case of Young vs. Rafferty, supra. The defense of the Collector of Internal Revenue was that the regulation issued by him had for its

object the protection of the Government and to prevent the non-payment of the merchant's and the percentage taxes. Following trial in the lower court and appeal, the Supreme Court held that sections 5 and 6 of Act No. 2339 did not empower the Collector of Internal Revenue to designate the language in which the entries in such books are made by merchants subject to the percentage tax. Omitting portions of the opinion handed down by Mr. Justice Trent, some of which will be noticed in other connections, it is only necessary for us to quote the portion which deals with the subject at hand, namely: It is also urge that the regulation is designed to protect the Government against evasion of the percentage tax. If it be necessary to impose such a burden upon so large a number of the business community in order that the Government may protect itself from such losses, we apprehend that it was never intended that the initiative should be taken by the Collector of Internal Revenue. The condition complained of by the Collector has confronted the Government ever since the present system of internal revenue taxes was inaugurated in 1904. It is not for the administrative head of a Government bureau to say that such an obstacle to the collection of taxes shall be removed by imposing burdens not specifically authorized in the law itself. In view of the fact that a particular language is not essential to the recording of the information desired by the Collector and the enforcement of the objectionable provisions of his circular would be a very important step in the solution of the language problem in this country, amounting, we believe, to a question of public policy which should not be dictated by any administrative authority, we must conclude that the Collector has exceeded his authority in this particular. In reaching this conclusion, we have carefully avoided using any language which would indicate our views upon the plaintiffs' second proposition to the effect that if the regulation were an Act of the Legislature itself, it would be invalid as being in conflict with the paramount law of the land and the treaties regulating certain relations with foreigners. (Emphasis ours.) Mr. Justice Carson, in a concurring opinion of some importance as will hereafter be emphasize, said:

I concur, on the ground that under the order of the Collector, if strictly enforced, the tens of thousand of merchants, petty storekeepers and others affected by its terms, both native and foreign, who have no adequate knowledge of either English or Spanish, would be required in effect not only to keep a record of the results of their business transactions in English or Spanish, but also to conduct such transactions in one or other of those languages. I do not question the authority of the Collector to prescribe rules for the keeping of such records or transcripts of records of the results of mercantile transactions as may be reasonably necessary in order to eliminate fraud or concealment, and to expedite the labors of those charged with the collection of taxes: but I do not think that he was any authority to require the keeping of the original record of the vast number of these transactions in a tongue unknown to the parties; and I think furthermore that his authority to prescribe regulations intended to expedite the collection of taxes of this nature, is necessarily limited to the promulgation of regulations reasonably necessary to the end. As will at once be noticed, the Supreme Court limited its decision to the annulment of the circular of the Collector of Internal Revenue. It left for the Legislature to determine if a law on the subject should be enacted, without expressing any opinion as to the validity of such a law. Following some agitation on the subject, the then Governor-General, in a message to the Legislature on October 16, 1920, recommended for consideration "Legislation as already approved by the Senate should require that all business houses keep their books in English or Spanish, or in any one of the local Philippine dialects, in order to avoid wholesale frauds upon the Public revenues." The bill was presented in the House of Representatives by Representative Urgello with the following explanatory note: As all of the merchants doing business in the Philippines are not of the same nationality, some of them keep their books of account in their native language. The examination of these books by the agents of the Government for their proper verification, is made with some difficulty, inasmuch as in many cases it requires the help of 15

a translator which constitutes an expense to the public treasury. Uniformity and facility in the examination and investigation of these books require that the same be kept by the merchants, whether individuals or corporations, in English or Spanish. This is the object of the attached bill. After the Philippine Legislature had passed Act No. 2972, the present Governor-General in a message asked for either the repeal or a modification of the law. Hearings before committees of the Legislature were permitted. According to the report prepared and submitted by the Chairman of the Committee on Revision of Laws of the House of Representatives, which we feel at liberty to take into consideration, at the hearing before his committee the representatives of the Chinese community advocated the repeal of Act No. 2972, but this was strongly opposed by the representatives of the Bureau of Audits, and the Bureau of Internal Revenue. The representative of the Bureau of Internal Revenue, Mr. Posadas, "gave repeated assurances before the Committee that due to the unintelligibility of the books of Chinese merchants, because of the language in which the same was written, the public treasury was being defrauded annually in several millions of pesos, and that in order to protect the Government it is necessary to uphold Act No. 2972." (Exhibit 3.) Eventually, the Philippine Legislature, with the exception that it postponed the taking effect of the law, refused otherwise to modify it. There has next followed the instant proceedings, by means of which an expression of opinion is sought to settle the conflict of views as to the constitutionality of Act No. 2972. The law is attacked by the petitioners as in violation of treaty and constitutional rights of Chinese merchants, domiciled in the Philippine Islands. It is contended with marked earnestness, that the law is unreasonable and oppressive in nature, and repugnant to the provisions of the Fourteenth Amendment to the Constitution of the United States and of the corresponding provisions of the Jones Law, the Act of Congress of August 29, 1916, guaranteeing to all persons the equal protection of the laws. The law is defended by the city fiscal of Manila as a proper and reasonable exercise of the police power of the Philippine Government, and of its power of taxation. Four questions suggest themselves for discussion. What would be the probable effect, if Act No. 2972 was put in

operation? What was the purpose of the Legislature in enacting Act No. 2972? What are the respective legal rights of the Chinese and of the Government? What is a logical construction of Act No. 2972? In connection with the first question, it is, of course, undeniable that we cannot declare a legislative Act void because it conflicts with our opinion of what is just or expedient. Nevertheless, the effects and consequences enter with more or less force into consideration, whenever the validity of any law is in issue. (See 2 Lewis' Sutherland Statutory Construction, pp. 908 et seq.) The pleadings, the evidence, and the decision in Young vs. Rafferty, supra, disclose with regard to the mercantile life of the Philippines, the following facts: There are approximately 85,000 merchants of all nationalities in the Philippines, to whom Act No. 2972 applies. Of this number, 71,000 are Filipinos who may use their own dialects, they prefer English or Spanish. Approximately 1,500 are American, British, or Spanish subjects, who are permitted to use their native languages. Possibly 500 are foreign nationalities most of whom know the English or Spanish language. Of the remainder, between 10,000 and 12,000 are Chinese. The aggregate commercial business transacted by the Chinese merchants represents about sixty per cent of the total business done by all the merchants in the Philippine Islands. According to Mr. H.B. Pond, vice-president and general manager of the Pacific Commercial Company, the Chinese "are the principal distributing factors in the Philippine Islands of imported goods, and the principal gatherers of goods for exportation in the more remote places," and if the Chinese were driven out of the business, "there would be no other system of distribution available throughout the Islands." It is further claimed, on the one hand, that not to exceed one per cent of the Chinese merchants in the Philippine Islands understand English, Spanish, or a local dialect sufficiently well to be able to keep or revise their own books of account in any one of these languages, and that not to exceed ten per cent have even a working knowledge of either English, Spanish, or a local dialect, and on the other hand, that at least two-thirds of the Chinese businessmen can easily comply with the law. Counsel for the petitioners is sponsor for the sweeping statement that "the enforcement of Act 2972 would probably cause more damage and less good than any other law which has been enacted in the world." This strong stand is to a certain extent corroborated by resolutions adopted and signed by the principal business house in the City of Manila and by a number of chambers

of commerce (Exhibits C, D, E, F, G, H, I, and J, attached to the petition); by the vigorous protest of the Chinese foreign office (Exhibit K); by the opinions expressed by high officials in the War Department "that the law is fundamentally unwise" (Exhibit L), and "is obstructive of good understanding with our neighbors" (Exhibit M); and by the testimony of a large number of Chinese merchants and of other well qualified persons to the effect that sufficient bookkeepers are not available, that it would not be possible for many Chinese merchants, especially the smaller ones, to comply with the law, and that if the Chinese merchants were compelled to keep their books in any language other than the Chinese language, it would bring serious embarrassment to the great majority and might even drive many of them out of business. Mr. Dee C. Chuan, the President of the China Banking Corporation and of the Chinese Chamber of Commerce, and Honorable Chow Kwo Hsien, Chinese Consul General for the Philippine Islands, testified that they, in collaboration with Chinese merchants, had conducted an investigation from which they made the following estimate of the distribution of sales among the Chinese: Of the wholesale merchants, 50 had average amount of sales of over P1,000,000; 150, over P500,000; 400, over P100,000, and 2,735, over P40,000. Of the 8,445 retail merchants, the average amount of sales was P5,446.40. Basing their calculations on the above, it was found that the annual net income of the 8,445 Chinese retail merchants would not exceed P500 each, and of 2,000 of the 3,335 wholesale merchants, not to exceed P1,000. (Exhibit G.) The same investigation disclosed that not to exceed 12 Chinese firms are actually keeping their books in a language other than Chinese. The Chinese Consul General further testified that from his inquiries, he had found that the great majority of the Chinese merchants are utterly unable to comply with Act No. 2972. Mr. William T. Nolting, President of the Bank of the Philippine Islands and formerly Collector of Internal Revenue, testified to the following salient facts: 1. Not over one per cent of the Chinese merchants are qualified to transact their business in English, Spanish, or a native dialect; 2. It would be impossible to obtain accounts to assist them in keeping their books in English, Spanish, or a local dialect, although this deficiency might be overcome in the future; 3. If the merchant is unable to understand his accounts and cannot impose extreme confidence; in his bookkeeper, he is in a precarious position at all times; 4. An attempt to enforce Act No. 2972 would not facilitate the collection of taxes from the Chinese merchants but on the other hand might prove 16

prejudicial both to the interests of the Government and of the Chinese; 5. When he was in charge of the Bureau of Internal Revenue, he never experienced any difficulty in finding and employing a sufficient number of competent and honest Chinese accountants to make the necessary inspection of the books of Chinese merchants; 6. The honesty of the Chinese merchants in making the declarations of their sales compares favorably with other nationalities in that respect; and 7. To permit the Chinese merchants to keep two sets of books, one in Chinese and the other in English, Spanish, or some local dialect, would be a most dangerous practice because entries might be made in one set that would not be made in the other. The reply of the fiscal is to the effect that the oppressiveness of the law has been considerably exaggerated, that it applies as well to Japanese and other foreign merchants who do not complain, that only a relatively small per cent of the Chinese merchants seek to obstruct the enforcement of the law, that bookkeepers are available if the Chinese wish to employ them, and that the new law will facilitate governmental inspection of merchants' books. Numerous witnesses have been called and numerous documents have been offered to substantiate the stand taken by the Government. We will here notice only an indorsement by Wenceslao Trinidad, former Collector of Internal Revenue, and the testimony of Juan Posadas, the present Collector of Internal Revenue. Former Collector Trinidad, in a communication addressed to the Secretary to the Governor-General on September 22, 1921, said: During the year 1920, internal revenue tax receipts were issued to 95,363 merchants and manufacturers, 183 printers and publishers, 10,424 common carriers, 10,967 contractors and warehousemen, 58,942 peddlers of merchandise and 1,001 brokers. All of the above-mentioned persons are required to pay percentage taxes on their gross sales or receipts. On account of the nature of this tax, these persons are required to keep books of accounts wherein they can enter the amounts of business done by them. This Bureau has no statistics to show the number of Chinese engaged in different businesses subject to percentage taxes but it is safe to say that they represent fully sixty per cent of the numbers stated above. All of these Chinese merchants keep their accounts in Chinese, with the exception of a very few large business

houses which keep two sets of books of accounts, one in Chinese and the other in Spanish. There are also other businessmen who do not keep their books of accounts either in English or Spanish. These are Germans, Japanese, Syrians and Hindus. Their number cannot be ascertained due to the lack of statistics but there are many of them in the Islands, especially the Japanese. The Bureau of Internal Revenue had up to this time employed 17 Chinese accountants, two Hindus and one Japanese. All of these accountants have been separated from the service with the exception of four Chinese accountants who are at present still employed in the Bureau. Out of the seventeen Chinese accountants employed, five were discharge for graft, seven resigned or were forced to resign for their unsatisfactory services rendered or for suspicion of graft, and one deceased. In spite of this number of accountants employed, only very little number of Chinese books have been investigated and audited, and in the majority of them under-declarations of sales or receipts have been found. There are also a number of Chinese who are not subject to percentage taxes, but who have books of accounts that need to be audited for income-tax purposes. It can be seen from the foregoing statements that the law requiring merchants to keep their books in English, Spanish or any of the local dialects, is necessary in order to protect the revenues of the Government. Collector Juan Posadas, in reply to question, and corroborated by other witnesses, made among others the following interesting statements: Mr. FELIX. If the books of account, not only of the Chinese merchants but of the other foreign merchants, were kept in their own languages and not in English, Spanish, or some local dialect, would it be possible to have the books of accounts of these merchants audited by the agents or employees of the Bureau of Internal Revenue? ... Mr. POSADAS. It would be impossible, unless our office had a personnel sufficiently numerous and competent to make

the audits of the books of account in the different languages in which they were kept. Mr. FELIX. Has the Bureau of Internal Revenue that sufficient and competent personnel to audit the books of account of merchants who do not keep their books in Spanish, English, or some local dialect? Mr. POSADAS. No, sir, we have only an insignificant number of Chinese accountants to make examinations of the books of the Chinese merchants. xxx xxx xxx

Mr. FELIX. If the Bureau of Internal Revenue were not able as according to you it is not able to examine properly the books of accounts of merchants who do not keep their books in English, Spanish, or some local dialect, may the case arise wherein those merchants who do not keep their books in the languages permitted by Act No. 2972 would fail to pay the full amount of taxes due to the internal revenue, even though they were acting in good faith? ... Mr. POSADAS. Yes, sir, because judging from the audits even of those books of accounts which are intelligible to the office personnel, the office has found many differences, or items not declared for the purpose of taxation. xxx xxx xxx

Mr. FELIX. Do you know how many returns of merchants were examined in 1922 by the Chinese accountants of the income tax division of your Bureau? ... Mr. POSADAS. During that year, the Chinese accountants in the income tax division inspected 477 returns of Chinese. xxx xxx xxx

Mr. FELIX. Do you know whether there were any undeclarations in those cases, that were inspected that you have referred to? ... Mr. POSADAS. In the comparison of these returns with the books of account of the interested parties, differences were found which amount to more than P600,000 which was not declared. xxx xxx xxx 17

Mr. GIBBS. And, therefore, assuming that it would be possible to employ a sufficient number of competent Chinese inspectors of books of account, there would be no advantage in the enforcement of Act No. 2972 except in so far as it might aid the directors of the Bureau and the chiefs of division in making the inspections incident to deciding disputes between the inspectors and the merchants that you have mentioned? Mr. POSADAS. The advantage of the Accounting Law, which compels merchants to keep their books in English, Spanish, or some local dialect, lies precisely in the fact that it would facilitate the inspection of these books of account by the employees of the Bureau of Internal Revenue, and enable them to check up the taxes which have been paid the merchants and ascertain whether or not they agree with the transactions actually had. This work is at present being done so far as concerns the merchants who keep their books in languages comprehensible to the Bureau, and to a certain extent it means that these merchants are penalized. On the other hand, it has been almost impossible to do this with regard to those merchants who keep their books entirely in languages not comprehensible to the office, and the net result therefore is that while we can collect differences in taxes due from part of the merchants, it is almost impossible to do so with regard to the other part. xxx xxx xxx

known of a Chinese who has qualified himself in the civil service to occupy the position. xxx xxx xxx

Mr. GIBBS. Is it not true, Mr. POSADAS, that the practice of inspecting the books of the account of the Chinese by means of Chinese accountants has been followed by the Bureau of Internal Revenue in the Philippines for the past twenty years or more? Mr. POSADAS. To judge from the results of the inspections made by my Bureau during my incumbency therein, I am led to believe that the inspections which were formerly made were superficial, in view of the fact that the Bureau during these latter years, he discovered large differences which were never declared for the purposes of taxation. xxx xxx xxx

Language is the medium by which thoughts are conveyed from one person to another. The law before us recognizes as permissible mediums for business and taxation purposes, English the language of the people of the British Empire and the Republic of the United States; Spanish the language of the people of Spain; and local dialects the language of the home in the Philippines. Of these native dialects, as disclosed in a statement prepared by Dr. T.H. Pardo de Tavera, Director of the Philippine Library and Museum, there are a grand total of eighty-seven, six with extensive literature, and the others with little or no literature. (Exhibit F.) The law fails to take cognizance of the Chinese language, one of the oldest and one of the most extensively used languages in the world. The Philippine Organic Act of Congress of August 29, 1916, recognizes for electoral purposes, "Spanish, English, or a native language." (Sec. 15.) It enumerates as a qualification for an elective member of the Senate and the House of the Philippine Legislature, ability "to read and write either the English or Spanish language." (Sec. 13, 14.) The Municipal Law requires as a qualification for an elective municipal officer, ability to read and write intelligently either Spanish, English, or the local dialect. (Administrative Code, sec. 2174.) The official language of the courts and their records is at present either English or Spanish, although in practice, Spanish is used more extensively in the lower courts, and English in the appellate court. (Code of Civil Procedure, sec. 12, as amended by Act No. 2830. ) The official language of the legislative branch of the Government is either English or Spanish, although in practice Spanish is more extensively used, while exactly the reverse is true of the executive branch of the Government. In compliance with the President's Instructions to the Commission of April 7, 1900, full opportunity has been given to all the people of the Island to acquire the use of the English language, with the result that English is made the basis of public and private school instruction. (Administrative Code, sec. 922.) In the customs service, the law provides that the cargo manifest and each copy thereof shall be accompanied by a translation into English, if originally written in a language other than English. (Administrative Code, sec. 1226.) The above brief description of the language situation at least discloses some of the difficulties which have beset the attempt to hasten the adoption of a common language in the Philippines. Yet it is evident, that the Filipino people have cheerfully imposed upon themselves the burden of acquiring one more languages other than their native languages and have now, through their elective representatives, sought to require conformity with governmental policy by a large class of foreign residents. 18

Mr. GIBBS. Let's put the question in another form, Mr. Posadas: Is it not a fact that the only possible benefit which the Bureau of Internal Revenue would derive from the enforcement of Act No. 2972 would be in so far as it might assist the Bureau in checking up the information required by its regulations? Mr. POSADAS. Yes, sir, and to determine whether any items subject to taxation had been omitted. Mr. GIBBS. Another question, Mr. Posadas: Don't you think that by means of Chinese accountants, much more satisfactory kept in Chinese than from books kept abominably in English or Spanish? Mr. POSADAS. Even though the books which are kept in a language other than Chinese were abominably kept, as long as they contain the entries of all the transactions are carried out by a merchant or by a person subject to taxation, it would always be better than a book which is incomprehensible to the administrators of the Bureau. Some slight consideration of the language question in general and of the language question in the Philippines in particular, will assist us in determining if the effect of enforcing Act No. 2972 will cause as much hardship and will be so oppressive on one particular nationality as to nullify the law, or whether the judiciary can constitutionally enforce the law.

Mr. GIBBS. But supposing that you had also Chinese accountants competent to act as supervising agents in the provinces, then what advantage would there be in enforcing Act No. 2972? Mr. POSADAS. The advantage would consist precisely in the fact that we would avoid the duplication of personnel, because otherwise we would have to duplicate the personnel in each district by employing Filipinos and Chinese. Mr. GIBBS. Could you not easily put in a Chinese district inspector and a Filipino district inspector, leaving it to the Chinese district inspector to inspect the books of the Chinese and to the Filipino district inspector the books of the Filipinos and others? Mr. POSADAS. It is physically impossible to employ Chinese supervisors, in view of the fact that up to this time I have never

In the United States during the months immediately following the conclusion of the World War, a number of States passed statutes in substantially the same form forbidding the teaching of any modern language except English, to children below the eight grade in any school. The United States Supreme Court held the statutes unconstitutional on account of having no reasonable relation to some purpose within the competency of the State to effect, and on account of violating the constitutional guarantee of liberty in the Federal Constitution. "The protection of the Constitution extends to all," it was said, "to those who speak other languages as well as to those born with English on the tongue." (Meyer vs. Nebraska, Bartels vs. Iowa, Pohl vs. Ohio, Nebraska District of Evangelical Lutheran Synod vs. Mckelvie [1923], 262 U.S., 390, 404; XII Michigan Law Review, Jan., 1924, p. 248.) In other countries, however, notably in the Republics in the Americas, which have had their institutional law greatly influenced by the United States Constitution, laws are on the statute books which permit only Spanish to be used in commercial transactions. This is the system found in Bolivia, Chile, Colombia, Ecuador, Guatemala, Honduras, Mexico, Salvador, Uruguay, and Venezuela. (Commercial Laws of the World, vols. 1, 2 3, 4, 5, 6, 10, and 20; Manzano, Bonilla y Miana, Codigos de Comercio, Tomos II y III; Wheless, Compendium of the Laws of Mexico, vol. I; Exhibit 12.) The purpose of the Legislature in enacting Act No. 2972 is disclosed by the decision of this court in Young vs. Rafferty, supra, by the messages of the GovernorGeneral, by the hearings before the committees of the Philippine Legislature, and by other sources. All these indicate that the Act is a fiscal measure intended to facilitate the work of the government agents and to prevent fraud in the returns of merchants, in conformity with the sales tax and the income tax. For instance, in the decision in Young vs. Rafferty, supra, it was stated: "... It need hardly be said that the record which merchants are required to keep of their daily sales under the provisions of the circular letter of the Collector set out in the complaint is simplicity itself, and that it will, if honestly and faithfully kept, enable the Government to collect the percentage tax exactly due it. ..." Conceded that the Chinese handle sixty per cent of the aggregate business of the Philippines, approximate equality in taxation demands that they pay something like the same proportion in taxes for the support of the State.

In enacting Act No. 2972, the Philippine Legislature did so pursuant to the wide authority which is delegated to it by Organic law. The Organic Act, the Act of Congress of August 29, 1916, provides "That general legislative power, except as otherwise herein provided, is hereby granted the Philippine Legislature, authorized by this Act." (Sec. 8, 12.) The police power exists in the Philippine Islands in about the same form and to the same extent as in a State of the American Union. Under the general police power, persons and property in the Philippines have been subjected to various kinds of restrictions and burdens, in order to secure the general health, comfort, and prosperity of all. As indicated by a quotation of petitioners, the police power is not limited to regulations necessary for the preservation of good order or the public health and safety, but the prevention of fraud, cheating, and imposition is equally within its scope. The rule to follow in the application of the police power is that announced in the leading case of Lawton vs. Steele ( [1894], 152 U.S., 133), oft quoted with approval by our Supreme Court, namely: . . . Large discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests. To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. . . . (See further, U.S. vs. Toribio [1910], 15 Phil., 85; Case vs. Board of Health and Heiser [1913], 24 Phil., 250; U.S. vs. Gomez Jesus [1915], 31 Phil., 218; Churchill and Tait vs. Rafferty [1915], 32 Phil., 580; and Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.) The power of taxation is, likewise, in the Philippines as in the United States, the strongest of all the powers of government, practically absolute and unlimited. The familiar maxim early announced by Mr. Chief Justice Marshall for the United States Supreme Court and since

frequently invoked by the courts is that "the power to tax involves the power to destroy." (M'Culloch vs. Maryland [1819], 4 Wheat., 316.) It is a legislative power. All its incidents are within the control of the legislature. It is the Legislature which must questions of state necessarily involved in ordering a tax, which must make all the necessary rules and regulations which are to be observed in order to produce the desired results, and which must decide upon the agencies by means of which collections shall be made. (1 Cooley on Taxation, pp. 7, 43, 46, 54; Cowles vs. Brittain [1822], 2 Hawks, 204; Genet vs. City of Brooklyn {1885], 99 N.Y., 296; Felsenheld vs. U. S. [1902], 186 U.S., Muoz & Co. vs. Hord [1909], 12 Phil., 624.) It is equally manifest that the power to tax is not judicial power and that a strong case is required for the judiciary to declare a law relating to taxation invalid. If, of course, so great an abuse is manifest as to destroy natural and fundamental rights, it is the duty of the judiciary to hold such an Act unconstitutional. Nevertheless, certain of the limitations are such that they must address themselves exclusively to the legislative department, and be subject only to review by the people who elect the members of this department. To use the language of Judge Cooley: In order to bring taxation imposed by a state, or under its authority, within the scope of the provision of the fourteenth amendment which prohibits the deprivation of property without due process of law, the case should be so clearly and probably an illegal encroachment upon private rights as to leave no doubt that such taxation by its necessary operation is really spoliation under the power to tax. ... The inhibition of the amendment was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation ... In the construction of the revenue laws, special consideration is of course to be had of the purpose for which they are enacted. That purpose is to supply the government with revenue. But in the proceedings to obtain this it is also intended that no unnecessary injury shall be inflicted upon the individual taxed. While this is secondary to the main object the impelling occasion of the law it is none the less a sacred duty. Care is taken in constitutions to insert provisions to secure the citizen against injustice in taxation, and all legislative action is entitled to the presumption that this has been 19

intended. . . . (1 Cooley on Taxation, pp. 55, 56, 75, 452.) The petitioners are Chinese subjects. The treaty rights accorded the Chinese are those of the most favored nation. Their constitutional rights are those accorded all aliens, which means that the life, liberty, or property of these persons cannot be taken without due process of law, and that they are entitled to the equal protection of the laws, without regard to their race. (Yick Wo vs. Hopkins [1885], 118 U.S., 356; Kwong Sing vs. City of Manila, supra.) Our Code of Commerce and our Corporation Law permit foreigners, and companies created in a foreign country, to engage in commerce in the Philippine Islands. (Code of Commerce, art. 15; Act No. 1459, sec. 73.) The rights of these Chinese aliens are not less than the rights of American and Philippine citizens. Nor more. Six decisions bearing particularly on the rights of the Chinese, three coming from the United States Supreme Court, two from the Supreme Court of the Philippine Islands, and one from the Supreme Court of Hawaii have at least persuasive application to the instant proceedings. Two of the decisions of the United States Supreme Court that we have in mind, Barbier vs. Connolly ( [1884], 113 U.S., 27) and Yick Wo vs. Hopkins ( [1885], 118 U.S., 356), are so well known as merely require citation, while a recent series of cases on the language question have already been mentioned. We only stop to quote one significant sentence taken from Mr. Justice Field's opinion, pertaining to the Fourteenth Amendment to the United States Constitution, in the first cited case, namely: . . .Class legislation, discriminating against some and favoring others, is prohibited; but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the Amendment. The case of Young vs. Rafferty, supra, of Philippine origin we have heretofore noticed. But later in point of time, a question was raised in the Philippine courts relative to the power of the Municipal Board of the City of Manila to enact Ordinance No. 532, requiring receipts in duplicate in English and Spanish duly signed, showing the kind and number of articles delivered by laundries and dyeing and cleaning establishments. (Kwong Sing vs. City of Manila, supra.) It was held that as said ordinance was neither oppressive, nor unequal, nor unjust, it was valid. It was said:

The purpose of the municipal authorities in adopting the ordinance is fairly evident. Ordinance No. 532 was enacted, it is said, to avoid disputes between laundrymen and their patrons and to protect customers of laundries who are not able to decipher Chinese characters from being defrauded. The object of the ordinance was, accordingly, the promotion of peace and good order and the prevention of fraud, deceit, cheating, and imposition. The convenience of the public would also presumably be served in a community where there is a Babel of tongues by having receipts made out in the two official languages. Reasonable restraints of a lawful business for such purposes are permissible under the police power. The legislative body is the best judge of whether or not the means adopted are adequate to accomplish the ends in view. xxx xxx xxx

specific power and the all-pervading police power. There, governmental convenience was the aim; here, the public welfare. We are convinced that the same justices who participated in the decision in Young vs. Rafferty (supra) would now agree with the conclusion toward which we are tending. The case most directly in line with the facts before us, is that of the King vs. Lau Kiu ( [1888], 7 Hawaii, 489), decided by the Supreme Court of the Hawaii Islands during the period of the monarchial regime in those Islands. An Act of the Hawaii Legislature prescribed, that no wholesale or retail license should be granted to any person except upon the express condition that the licensee shall at all times keep full, true, and correct books of account of all business transacted by him in connection with such license, in the English, Hawaii, or some European language. It was contended among other things that this was legislation against one certain class of subjects in the Kingdom, to wit, against such subjects (and particularly the Chinese) as do not speak or write the Hawaiian, English, or any European language, and was not applicable to all citizens alike. It was held by the Supreme Court that this Act was contrary to articles 1 and 14 of the Constitution, which secure to all persons the enjoyment of life and liberty and the right of acquiring, possessing, and protecting property according to law. It was held, further, that the Act could not be sustained as an exercise of the police power of the state, as it had no relation to the health, comfort, safety, or welfare of the public. The presumption is always in favor of constitutionality. As the United States Supreme Court in a case of Philippine origin said: "... The function of the legislature is primary, its exercise fortified by presumption of right and legality, and is not to be interfered with lightly, nor by any judicial conception of its wisdom or propriety. ..." (Weems vs. United States [1910], 217 U.S., 349.) This presumption is especially strong in the case of statutes enacted to promote a public purpose, such as statutes relating to taxation. To doubt is to sustain. Only the other day, the United States Supreme Court, speaking through Mr. Justice Sutherland, said: The judicial duty of passing upon the constitutionality of an act of Congress is one of great gravity and delicacy. The statute here in question has successfully borne the scrutiny of the legislative branch of the government, which, by enacting it, has affirmed its validity; and that 20

Our view, after most thoughtful consideration, is, that the ordinance invades no fundamental right, and impairs no personal privilege. Under the guise of police regulation, an attempt is not made to violate personal or property rights. The ordinance is neither discriminatory nor unreasonable in its operation. It applies to all public laundries without distinction, whether they belong to Americans, Filipinos, Chinese, or any other nationality. All, without exception, and each and everyone of them without distinction, must comply with the ordinance. There is no privilege, no discrimination, no distinction. Equally and uniformly the ordinance applies to all engaged in the laundry business, and, as nearly as may be, the same burdens are cast upon them. xxx xxx xxx

There is no analogy between the instant case and the former one of Young vs. Rafferty ( [1916], 33 Phil., 556). The holding there was that the Internal Revenue Law did not empower the Collector of Internal Revenue to designate the language in which the entries in books shall be made by merchants subject to the percentage tax. ... There, the action was taken by means of administrative regulation; here, by legislative enactment. There, authority was rested on specific delegated powers; here, on both

determination must be given great weight. This court, by an unbroken line of decisions from Chief Justice Marshall to the present day, has steadily adhered to the rule that every possible presumption is in favor of the validity of an act of Congress until overcome beyond rational doubt. But if, by clear and indubitable demonstration, a statute be opposed to the Constitution, we have no choice but to say so. . . . (Adkins vs. Children's Hospital of the District of Columbia [1923], 261 U.S., 525; 67 Law. ed., 785.) That the Supreme Court of the Philippine Islands has consistently followed these rules is disclosed by the few laws held invalid. During the twenty-three years of the Supreme Court's existence, it has never held invalid one complete law, while portions of law have been nullified on but few occasions. (Casanovas vs. Hord [1907], 8 Phil., 125; Omo vs. Insular Government [1908], 11 Phil., 67; Weigall vs. Morgan Shuster [1908], 11 Phil., 340; Barrameda vs. Moir [1913], 25 Phil., 44; McGirr vs. Hamilton and Abreu [1915], 30 Phil., 563; Central Capiz vs. Ramirez [1920], 40 Phil., 883; Concepcion vs. Paredes [1921], 42 Phil., 599; McDaniel vs. Apacible and Cuisia [1922], 44 Phil., 248.) It may be said to be an elementary, a fundamental, and a universal rule of construction, applied when considering constitutional questions, that when a law is susceptible of two constructions one of which will maintain and the other destroy it, the courts will always adopt the former. Whenever a law can be so construed as to uphold it, it will be so construed although the construction which is adopted does not appear to be as natural as another construction. But where the meaning of the Act is plain, words cannot be read into it or out of it in order to save the law. (1 Lewis' Sutherland Statutory Construction, pp. 135, 136; Cooley's Constitutional Limitations, 184; 6 R.C.L., 78.) In the early case of United States vs. Coombs ( [1838], 12 Peters, 72), Mr. Justice Story, speaking for the United States Supreme Court, said: Before we proceed to the direct consideration of the true import and interpretation of this section, it seems highly important, if not indispensable, to say a few words as to the constitutional authority of Congress to pass the same. For it, upon a just interpretation of the terms thereof, Congress have exceeded their constitutional authority, it will become our duty to say so, and to certify our opinion on this points

submitted to us in favor of the defendant. On the other hand, if the section admits of two interpretations, each of which is within the constitutional authority of Congress, that ought to be adopted which best conforms to the terms and the objects manifested in the enactment, and the mischiefs which it was intended to remedy. And again, if the section admits of two interpretations, one of which brings it within, and the other presses it beyond the constitutional authority of Congress, it will become our duty to adopt the former construction; because a presumption never ought to be indulged that Congress meant to exercise or usurp any constitutional authority, unless that conclusion is forced upon the court by language altogether unambiguous. . . . In the later case of Board of Supervisors of Grenada County vs. Brown ( [1884], 112 U.S., 261), Mr. Justice Harlan, speaking for the United States Supreme Court, said: It certainly cannot be said that a different construction is required by the obvious import of the words of the statute. But if there were room for two constructions, both equally obvious and reasonable, the court must, in deference to the Legislature of the State, assume that it did not overlook the provisions of the Constitution and designed the Act of 1871 to take effect. Our duty, therefore, is to adopt that construction which, without doing violence to the fair meaning of the words used, brings the statute into harmony with the provisions of the Constitution, Cooley Constitutional Law, 184-5; Newland vs. Marsh, 19 Ill., 384; People vs. Supervisors, 17 N.Y., 241; Colwell vs. Water Power Co., 4 C.E. Green (19 N.J. Eq.), 249. And such is the rule recognized by the Supreme Court of Mississippi in Marshall vs. Grimes, 41 Miss., 31, in which it was said: "General words in the Act should not be so construed as to give an effect to it beyond the legislative power, and thereby render the Act unconstitutional. But, if possible, a construction should be given to it that will render it free from constitutional objection; and the presumption must be that the Legislature intended to grant such rights as are legitimately within its power." Again, in Sykes vs. Mayor, 55 Mississippi, 143: "It ought never to be assumed that the lawmaking department of the government intended to usurp or assume power prohibited to it. And such construction, if the

words will admit of it, ought to be put on its legislation as will make it consistent with the supreme law." Identical canons of statutory construction have often been invoked in the Philippines to enable the courts to avoid declaring a law unconstitutional. For instance, the decision in the well known case of In re Guaria ( [1913], 24 Phil., 37, 46), citing Black on Interpretation of Laws, pp. 87, 93, and 94, is authority for this statement of the rule: "It is the duty of the courts in construing a statute enacted by the Philippine Commission (Legislature), not to give it a construction which would be repugnant to an Act of Congress, if the language of the statute is fairly susceptible of another construction not in conflict with the higher law; and in doing so, contentions touching the apparent intention of the legislator will be disregarded which would lead to the conclusion that the Commission intended to enact a law in violation of an Act of Congress." Not long since, this court, in the case of Fuentes vs. Director of Prisons, No. 22449,1 saved Act No. 3104 relating to the death penalty, from a fate similar to its subject by refusing to give a literal meaning to the phraseology of the law. We have been enveigled into a much more elaborate discussion of this case than is at all essential, for two reasons: Firstly, because of the earnestness of counsel who have impressed on the court with marked ability the merits of their respective cases and the dangers which lurk in a contrary holding; and secondly, because of the effectiveness of the background as indicative of executive purpose and legislative intent. Speaking frankly, however, a majority of the court has all the time had a well defined opinion which we will now state. We come to the last question suggested, a construction of Act No. 2972 which allows the court legally to approve it. A literal application of the law would make it unlawful for any Chinese merchant to keep his account books in any language other than English, Spanish, or a local dialect. The petitioners say the law is susceptible of that interpretation. But such interpretation might, and probably would, cause us to hold the law unconstitutional. A second interpretation is that the Chinese merchant, while permitted to keep his books of account in Chinese, must also keep another set of books in either English, Spanish, or a native dialect. The respondents claim the law is susceptible of such construction. It occurs to us, however, that this construction might prove as unsatisfactory as the first. Fraud is possible in any 21

language. An approximation to governmental convenience and an approximation to equality in taxation is the most which may be expected. A third construction which is permissible in view of the history of the legislation and the wording of the statute, is, that the law only intended to require the keeping of such books as were necessary in order to facilitate governmental inspection for tax purposes. It has not escaped our notice that the law does not specify what books shall be kept. It is stated by competent witnesses that a cash book, a journal, and a ledger are indispensable books of account for an efficient system of accounting, and that, in the smaller shops, even simpler entries showing merely the daily record of sales and record of purchases of merchandise would be sufficient. The keeping of records of sales and possibly further records of purchases, in English Spanish, or native dialect, and the filling out of the necessary forms would serve the purpose of the Government while not being oppressive. Actually, notations in English, Spanish, or a dialect of all sales in sales books, and of data in other specified forms are insisted upon by the Bureau of Internal Revenue, although as appears from Exhibit 2, it is doubtful is all Chinese merchants have complied with these regulations. The faithful observance of such rules by the Chinese is not far removed from the offer of cooperation oft made for them by the petitioners or the "translation of the account books" oft mentioned and explained by the respondents. The law, in speaking of any person, company, partnership, or corporation, makes use of the expression "its account books." Does the phrase "its account books" mean that all the account books of the person, company, partnership, or corporation must be kept exclusively in English, Spanish, or any local dialect? The petitioners argue that the law has this meaning. Or does the phrase "its account books" mean that the persons, company, partnership, or corporation shall keep duplicate sets of account books, one set in Chinese and the other a translation into English, Spanish, or any local dialect? Counsel for the respondents urge this construction of the law upon the court. Or does the phrase "its account books" mean that the person, company, partnership, or corporation must keep such account books as are necessary for taxation purposes? This latter interpretation occurs to us as a reasonable one and as best safeguarding the rights of the accused. And lastly, what effect has Act No. 2972 had upon the provisions of the Code of Commerce on the subject of merchants? Has the Act repealed or modified any article of the Code of Commerce?

The interrogatories above made at least lead to the deduction that the law is more or less ambiguous and that it will bear two or more constructions. Let us repeat: Act No. 2972 is a fiscal measure. It should be so construed if possible as to effectuate legislative intent, as collected from the occasion for the law, the circumstance under which it was enacted, the mischief to be remedied, and the policy which dictated its passage. It should be so construed if possible as to avoid conflict with the constitution, although such construction may not be the most obvious or natural one. Giving, therefore, to the law a meaning which will carry out the main governmental purpose and which will permit us to sanction its constitutionality, it seeks to prohibit not only the Chinese but all merchants of whatever nationality from making entries in the books of account or forms subject to inspection for taxation purposes in any other language than either the English or Spanish language or a local dialect, although permitting all merchants to execute their commercial transactions or operations in any language or dialect they may prefer, and although permitting them to keep such other books of account as their personal convenience may dictate and in a language which will come most easily to them. We would go so far as to hold that circular No. 467 of the Bureau of Internal Revenue which this court once held beyond the power of the Collector of Internal Revenue to promulgate, and any other reasonable regulation of a similar nature, as within the power of the Philippine Legislature to sanction and entirely enforceable. To any possible plaint by the Government, that this is tantamount to "judicial legislation," we would say: It is not "judicial legislation" as this phrase is commonly used in the spirit of antagonistic fault finding. No words are written into the law. No words are taken out of the law. It is merely a practical judicial construction of a law where the validity of this law is in issue, which gives to the law a meaning accomplishing everything needed by the Government for tax purposes, without being unduly oppressive on the individual, and which permits the courts to uphold the law. To the petitioners, who by our decision do not obtain all they may wish, we append this word of advice: Under such a construction as is above indicated, the Chinese will not be singled out as a special subject for discriminating and hostile legislation. There will be no arbitrary deprivation of liberty or arbitrary spoliation of property. There will be no unjust and illegal discrimination between persons in similar circumstances. The law will prove oppressive to the extent that all tax laws are

oppressive, but not oppressive to the extent of confiscation. The means to accomplish a necessary interference with private business are no more oppressive upon individuals than is necessary to maintain the State. The law is not intended for the convenience of the trader or the protection of the creditors, but has relation to the public welfare, to the power of taxation, to the right of the government to exist. The Chinese must bear their just proportion of the tax burden, however unwelcome it may be, without flinching. A faint effort has been made by the petitioners to have the court declare Act No. 2972 void because the subject thereof is not expressed in its title. But legislation should not be embarrassed by such strict construction as is urged by counsel. No distinguishable variance between the title of the law and the body of the law can be discovered after microscopic examination. The law is brief in its terms, and neither the Legislature nor the public need be misled by the title. (Government of the Philippine Islands vs. Municipality of Binalonan and Roman Catholic Bishop of Nueva Segovia [1915], 32 Phil., 634.) We construe Act No. 2972 as meaning that any person, company, partnership, or corporation, engaged in commerce, industry, or any other activity for the purpose of profit in the Philippine Islands, shall keep its account books, consisting of sales books and other records and returns required for taxation purposes by regulations of the Bureau of Internal Revenue, in effect when this action was begun, in English, Spanish, or a local dialect. Agreeable to such construction, we hold Act No. 2972 valid and constitutional. The temporary injunction heretofore issued is dissolved although under the construction given to the law it may well be doubted if the Government will care to proceed with the criminal prosecution. If the Government should not dismiss the information, this question may be raised by demurrer in the lower court. Petition denied without costs. Avancea, Villamor, Ostrand, and Romualdez, concur. Johnson, Acting Chief Justice, took no part. JJ.,

Separate Opinions 22

STREET, J., dissenting: The Act which has been assailed in this case looks innocent enough on its face but when examined in connection with conditions among those for whom it was prescribed, compliance is found to be impossible, or supposing that the Act could be complied with, the loss resulting to thousands of Chinese merchants would be so disproportionate to any possible good to be attained, that the enforcement of the law would amount to a denial of liberty and equal protection of the law to the persons adversely affected. It is unnecessary for me to enlarge upon the destructive effects of the law as a ground for declaring it invalid, for it is admitted in the majority opinion that if Act No. 2972 is taken to mean what it says, it must be considered a dead letter. But after admitting this much, the court, in its extreme reluctance to declare the entire statute void, addresses itself to the problem of limiting its effect by what I consider to be an illegitimate process of judicial amendment under the guise of interpretation. The first section of the Act, as thus amended by the Supreme Court, reads as follows: It shall be unlawful for any person, company, partnership or corporation engaged in commerce, industry or any other activity for the purpose of profit in the Philippine Islands, in accordance with existing law, to keep its account books, (consisting of sales books and other records and returns required for taxation purposes by regulations of the Bureau of Internal Revenue, in effect when this action was begun) in any language other than English, Spanish or any local dialect. The new matter which I have here inserted in parenthesis is taken verbatim from the dispositive part of the decision and defines precisely the extent to which the court has decided to allow the Act to operate. Where are the rules of interpretation by which this matter can be deduced from the language of the Act? The opinion of the court supplies no answer. Of course if the Legislature had confined the Act to giving the Collector of Internal Revenue a power to prescribe forms and require data convenient for the assessment of taxes, the law would not have been subject to criticism; but how can an intention to legislate in this form be deduced from the proposition, so entirely distinct, contained in the Act, that it shall be unlawful for a merchant to keep his account books in other languages than those mentioned? That the court is here exercising the mere role of a legislator is very

obvious, for who can say that the Philippine Legislature, conscious of the ineffectiveness of the law as written, would have willed that the power granted to the Collector should take the precise form and extent now allowed by the court? In assuming the functions of a legislature we are entering upon a sea that has not been charted for the guidance of courts, and if this decision should prove fruitful as a precedent we shall find ourselves free in the future to wander pretty much at will through legislative Acts. The precise rule applicable to this case is stated in Meyer vs. Nebraska (262 U.S., 390; 67 Law. ed., 1042), where the Supreme Court of the United States, speaking through Mr. Justice McReynolds, declared that the liberty secured by the constitutional provision under discussion may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect. The decision of the Supreme Court of Hawaii in King vs. Lau Kiu (7 Hawaiian Rep., 489), declaring invalid a statute almost exactly like that involved in this action is also suggestive, as reflecting judicial sense in a community containing a large element of Chinese population. It is my opinion that Act No. 2972 of the Philippine Legislature is wholly void, and the injunction should have been made perpetual. In addition to smashing the law the court should have removed the debris.

SEC. 2. Any person violating the provisions of this Act shall, upon conviction, be punished by a fine of not more than ten thousand pesos, or by imprisonment for not more than two years or both. It will be noted that section 1 makes it unlawful for any of the persons specified "to keep its account books in any language other than English, Spanish or any local dialect." Section 2 provides that any person violating the provisions of section 1 shall be punished by a fine of not more than P10,000 or by imprisonment for not more than two years or both. In other words, you have a law prohibiting the doing of certain things and providing a punishment for its violation. Hence, the statute in question is a criminal law, and must be construed as such. Sutherland on Statutory Construction is recognized as standard authority all over the world, and portions of it are quoted with approval in the majority opinion. In his second edition, section 531, the author says: What statutes are penal. Among penal laws which must be strictly construed, those most obviously included are all such acts as in terms impose a fine or corporal punishment under sentence in state prosecutions, or forfeitures to the state as a punitory consequence of violating laws made for preservation of the peace and good order of society. The majority opinion frankly says:

JOHNS, J., dissenting: With all due respect to the well written, exhaustive majority opinion, the only question involved is the meaning and construction which should be placed upon Act No. 2972, which is entitled "An Act to provide in what language account books shall be kept, and to establish penalties for its violation." SECTION 1. It shall be unlawful for any person, company, partnership or corporation engaged in commerce, industry or any other activity for the purpose of profit in the Philippine Islands, in accordance with existing law, to keep its account books in any language other than English, Spanish or any local dialect.

A literal application of the law would make it unlawful for any Chinese merchant to keep his account books in any language other than English, Spanish, or local dialect. The petitioners say the law is susceptible of that interpretation. But such interpretation might, and probably would, cause us to hold the law unconstitutional. In section 363, Sutherland on Statutory Construction, it is said. . . . If a statute is plain, certain and unambiguous, so that no doubt arises from its own terms as to its scope and meaning, a bare reading suffices; then interpretation is needless.

23

SEC. 366. ... We are not at liberty to imagine an intent and bind the letter of the act to that intent; much less can we indulge in the license of striking out and inserting, and remodeling, with the view of making the letter express an intent which the statute in its native form does not evidence. Every construction, therefore, is vicious which requires great changes in the letter of the statute, and, of several constructions, that is to be preferred which introduces the most general and uniform remedy. . . . No mere omission, no mere failure to provide for contingencies, which it may seem wise to have specifically provided for, justify any judicial addition to the language of the statute. The legislature must be understood to mean what it has plainly expressed, and this excludes construction. The legislative intent being plainly expressed, so that the act read by itself, or in connection with other statutes pertaining to the same subject, is clear, certain and unambiguous, the courts have only the simple and obvious duty to enforce the law according to its terms. ... If a legislative enactment violates no constitutional provision or principle, it must be deemed its own sufficient and conclusive evidence of the justice, propriety and policy of its passage. Courts have, then, no power to set it aside, or evade its operation by forced and unreasonable construction. If it has been passed improvidently, the responsibility is with the legislature and not with the courts. SEC. 520. Strict construction of penal statutes. The penal law is intended to regulate the conduct of people of all grades of intelligence within the scope of responsibility. It is therefore essential to its justice and humanity that it be expressed in language which they can easily comprehend; that it be hold obligatory only in the sense in which all can and will understand it. And this consideration presses with increasing weight according to the severity of the penalty. Hence every provision affecting any element of a criminal offense involving life or liberty is subject to the strictest interpretation; and every provision intended for the benefit of the accused, for the same humane reason, receives the most favorable construction. The rule that penal laws are to be construed strictly is perhaps

not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislature, not in the judicial department. It is the legislature, not the court, which is to define a crime and ordain its punishment. ... The case must be a very strong one indeed which would justify a court in departing from the plain meaning of the words, especially in a penal act, in search of an intention which the words themselves did not suggest. . . . . . . "The established rule is," says the court in Ex parte Bailey, "that a penal law must be construed strictly, and according to its letter. Nothing is to be regarded as included within them that is not within their letter as well as their spirit; nothing that is not clearly and intelligibly described in the very words of the statute, as well as manifestly intended by the legislature. . . ." SEC. 521. A penal statute cannot be extended by implication or construction. It cannot be made to embrace cases not within the letter, though within the reason and policy, of the law. Applying such rules of construction to Act No. 2972, how, where or in what manner is the language of Act No. 2972 ambiguous, indefinite or uncertain? Every word of it is intelligent English. Where is there any doubt or uncertainty as to the meaning of any word in the act? As the majority opinion states, if the language used in the act means what it says, it must be construed as unconstitutional. For such reason, the majority opinion holds that the act should not be construed to mean what it says, but that it should be construed to mean what it is claimed the legislature intended it should mean. If the language in the act was indefinite, uncertain or ambiguous that position would be tenable. Numerous decisions are cited in the majority opinion, all of which are good law, but only two of them are in point upon the main question here involved, and both of them are squarely against the law as laid down in the majority opinion. In legal effect, that opinion holds that Act No. 2972, in its existing form, and as it was enacted by the Legislature, is unconstitutional and void. It then proceeds to reconstruct, change and modify the law, and then holds that the law, as reconstructed and modified is constitutional. No law is cited which authorizes this or any other court to reconstruct or modify the plain, simple

language of a legislative act, for the simple reason that no such a law will ever be found. But, as Sutherland says, where, as in the instant case, the language is clear and explicit, it must be construed to mean what it says. On legal principle, the case of Meyer vs. Nebraska, decided by the Supreme Court of the United States at the October term, 1922 (67 Law ed., 1042), cited in the majority opinion, is square in point. The Legislature of Nebraska passed a law entitled "An Act Relating to the Teaching of Foreign Languages in the State of Nebraska," section 1 of which is as follows: No person, individually or as a teacher, shall, in any private, denominational, parochial or public school, teach any subject to any person in any language other than the English language. SEC. 2. Languages, other than the English language, may be taught as languages only after a pupil shall have attained and successfully passed the eight grade as evidenced by a certificate of graduation issued by the country superintendent of the country in which the child resides. SEC. 3. Any person who violates any of the provisions of this Act shall be deemed guilty of a misdemeanor and upon conviction, shall be subject to a fine of not less than twenty-five ($25) dollars, nor more than one hundred ($100) dollars or be confined in the county jail for any period not exceeding thirty days for each offense. That court held the act unconstitutional and void under the Fourteenth Amendment. Notice the similarity of the legal questions involved. Also notice that section 2 of that Act provides that English language may be taught after the pupils have passed the eight grade. In the instant law, there is no exception whatever. That law was held void by the highest court of the land whose decisions this court should follow and respect. By comparison of the two laws, it shall be noted that there is much stronger reason for holding the law unconstitutional in the instant case than in the case of Meyer vs. Nebraska. It will also be noted that the Supreme Court of the United States squarely met and decided the constitutionality of the law. The Legislature of the Hawaiian Kingdom enacted a law section 1 of which is as follows: 24

"That from and after the first day of October next, no wholesale or retail license shall be granted to any person except upon the express condition that such licensee shall at all times keep full, true and correct books of account of all business transacted by him in connection with such licensed business, which books of account shall be kept in the English, Hawaiian or some European language." And the Supreme Court of Hawaii, in 7 Hawaiian Reports, 489, held that the law was unconstitutional and void. Compare the language used in the Nebraska Act and the Hawaiian Act with that of Act No. 2972. In each case, it is plain, clear and simple, and there is no doubt as to what the legislature intended. In the Nebraska case, there was no attempt made by the Supreme Court of the United States to reconstruct, change or modify the law as it was enacted by the legislature. The same thing is true in the Hawaiian case. You will look in vain to find a decision of the Supreme Court of the United States where that court has ever reconstructed or modified the plain, clear, simple language of a legislative act, for the purpose of holding it constitutional. We frankly concede that, for taxation purposes, the legislature has the power to enact a law requiring that a record of all sales and purchases should be kept in a given language, and to specify and define how and in what manner such record should be kept, and that such a law would be valid. But we are not dealing with the question of what the legislature can do. The question involved here is what the legislature has done. Both in the title and the body of the act, the legislature has said that it shall be unlawful for any person, firm or corporation engaged in certain lines of business to keep its account books in any language other than English, Spanish or any local dialect, and has expressly imposed a penalty for a violation of the act. There are no exceptions or limitations in the language, and it is not confined or limited to any specific purpose. It is broad and general and applies to any and all account books which may be kept or used in connection with the business. The majority opinion holds that the law should be construed to read that account books, for taxation purposes only, shall be kept in either English, Spanish or any local dialect. With all due respect to the majority opinion, that is the very highest type of judicial legislation. If the act is to be so construed, then the law itself should specify and define what books are required to be kept for taxation purposes, and how they should be kept, or it should delegate that power to the tax officials.

Assuming, as the majority opinion does, that Act No. 2972 should read that account books, for taxation purposes, should be kept in their English, Spanish or any local dialect, the act does not specify or define what books shall be kept or how and in what manner they shall be kept. Neither does it delegate that power to anyone else. In its effort in trying to get out of one hole and make a void law a valid law, the majority opinion runs into another hole, which is equally fatal to law. If, as it holds, Act No. 2972 should be construed to mean that account books, for taxation purposes only, should be kept in their English, Spanish or some local dialect, and the law does not specify what books shall be kept or how and in what manner they shall be kept and that power is not delegated to anyone else, how can the law be enforced? Under such a construction, if a defendant should be charged with a violation of the law, what law has he violated, and upon what legal principle could a conviction be sustained? Upon that point, the law as drafted by the legislature is definite and certain. In legal effect, it provides that all account books for any and all purposes shall be kept in either English, Spanish or some local dialect. The law as reconstructed by the majority opinion would be that such account books are to be confined and limited to account books for taxation purposes. Yet, the law does not specify what books shall be kept for that purpose, or how or in what manner they shall be kept, or what the entries shall contain. Neither is that power delegated. In the absence of such provisions, how could anyone be convicted of a violation of the law? For what crime could he be charged and what would be his offense? Apparently, the majority opinion realizes the legal effect of its reconstruction of the law, for on page 36 (p. 420,supra), the opinion says: . . . it seeks to prohibit not only the Chinese but all merchants of whatever nationality from making entries in the books of account or forms subject to inspection for taxation purposes in any other language than either the English or Spanish language or a local dialect, . . . . And on page 37 (p. 420, supra), it says: . . . We would go so far as to hold that circular No. 467 of the Bureau of Internal Revenue which this court once held beyond the power of the Collector of Internal Revenue to promulgate, and any other reasonable regulation of a similar nature, as within the power of the Philippine Legislature to sanction and entirely enforceable. But it will be noted that Act No. 2972 does not say anything about "entries in the books of account or forms subject to inspection for taxation purposes." Neither does

it say anything about "circular No. 467 or any other reasonable regulation of a similar nature." Neither is there any delegation of power to anyone. Hence, it must follow that until such time as the law is amended by the legislature covering those points, it cannot be enforced. The act in question is in no way connected with, and does not in any manner refer to, the "Code of Commerce." Act No. 2972 is entitled "An Act to provide in what language account books shall be kept, and to establish penalties for its violation," and section 1 provides that it shall be unlawful for certain persons "to keep its account books in any language other than English, Spanish or any local dialect." The act is complete within itself and is separate and distinct from, and makes no reference whatever to, any other act. The Code of Commerce is entitled "Merchants and Commerce in General," and deals with commercial bodies and commercial transactions. If, as the majority opinion holds, Act No. 2972 should read "account books for taxation purposes," then Act No. 2972 should be confined and limited to questions of taxation, which are entirely separate and distinct from "merchants and commerce in general." We have yet to learn that legally speaking, questions of commerce and commercial transactions are synonyms with questions of taxation. It is said that this court has never declared an act of the legislature unconstitutional. Assuming that to be true, it is no argument for or against the constitutionality of any law. On legal principle, Act No. 2972 was declared unconstitutional by the Supreme Court of the United States; an example which it would be well for this court to follow. However grave the responsibility may be, if a given law is unconstitutional, under our oath of office, it is our duty to so declare it. We repeat that no law is cited in the majority opinion and that none will ever be found which holds the law in question to be constitutional. The majority opinion violates every rule above quoted of Sutherland on Statutory Construction. For such reasons, I vigorously dissent. Plaintiffs should have the writ prayed for in their petition. Footnotes 25

EN BANC G.R. No. L-16160 October 31, 1960

MAGDALENA SANGALANG, petitioner, vs. PEOPLE OF THE PHILIPPINES and HON. CARMELINO G. ALVENDIA, Judge of the Court of First Instance of Manila, respondents. Manuel O. Chan No appearance for respondents. GUTIERREZ DAVID, J.: Petition for writ of prohibition to restrain the respondent Judge of the Court of First Instance of Manila from trying herein petitioner Magdalena Sangalang in Criminal Case No. 46860 pending in that court on the ground of double jeopardy. No answer to the petition has been filed in behalf of the respondent Judge or of the people of the Philippines. From the verified petition and the pleadings and documents annexed thereto, it appears that in an information filed with the Court of First Instance of Manila on April 18, 1952, petitioner Magdalena Sangalang was, together with Enriqueta Pascoquin, Nicodemus Domingo and Bayani de la Cruz, charged with qualified theft alleged to have been committed by them on or about January 15, 1952 by taking and carrying away 15,000 empty jute bags belonging to the National Rice and Corn Corporation (NARIC). (Criminal Case No. 18659.) After the prosecution had rested its case, all of the accused filed their respective motions for dismissal based on insufficiency of evidence to establish their guilt. Sustaining the motion filed by the petitioner Magdalena Sangalang and Bayani de la Cruz, the Hon. Francisco E. Jose, Judge of the Court of First Instance of Manila, issued an order dismissing the case as against them with costs de oficio. More than four years later, or on September 3, 1957, the same assistant city fiscal for Manila, who filed the information in Criminal Case No. 18659 for qualified theft, again charged the petitioner and one Leandro Castelo, this time with the crime of estafa alleged to have been committed by them by inducing one Enriqueta Pascoquin to buy certain NARIC invoices for 15,000 empty sacks, which invoices turned out to be fictitious and falsified. (Case No. 41366.) It will be noted that the complainant, for petitioner.

Enriqueta Pascoquin, was one of the accused in Criminal Case No. 18659 of the same court and the crime charged, as in the first information, took place on January 15, 1952. Upon being arraigned, petitioner entered the plea of "not guilty". Thereafter, she asked the permission of the court to withdraw her plea of "not guilty" for the purpose of enabling her to file a motion to quash the information filed against her. The request having been granted, petitioner filed in due from a motion to quash the information on the ground of double jeopardy. Sustaining the motion to quash, the court on March 14, 1958, dismissed the case as against her, with one-half of the costs de oficio. This order was not appealed and has therefore become final and conclusive. On December 29, 1958, a third information against herein petitioner was filed in the Court of First Instance of Manila (Criminal Case No. 46860) for the same and identical offense of estafa charged in Criminal Case No. 41366 in spite of the order of dismissal therein which had long become final and conclusive. Again invoking double jeopardy, the petitioner, thru counsel, filed a motion to quash the information. The respondent Judge, however, in an order dated July 11, 1959, denied the motion and ordered petitioner's arraignment. Motion for reconsideration having been also denied, petitioner brought the case to this Court through the present petition for prohibition. The petition is meritorious. An order sustaining a motion to quash on the ground of double jeopardy constitutes a bar to another prosecution for the same cause. (Sec. 8, Rule 113, Rules of Court.) The record clearly shows that in Criminal Case No. 41366, wherein petitioner was charged with the offense of estafa, the latter's motion to quash on the ground of double jeopardy was sustained and the case dismissed as against her. In not therefore dismissing the information in the proceedings below charging petitioner with the same offense, the respondent Judge committed a grave abuse of his discretion. (People vs. Petilla, 92 Phil., 395; 48 Off. Gaz., 5288.). This Court fails to see any plausible reason for the filing of the information in the present case, considering that the defense of double jeopardy is patently clear from the facts appearing on record. The law makes it a legal duty for prosecuting officers to file the charges against whomsoever the evidence may show to be responsible for an offense, but in the performance of their functions, they are equally duty bound to exercise a high degree of prudence and discrimination to the end that no one shall

be twice put in jeopardy for the same offense. In this way, the danger, annoyance and vexation suffered by the accused after going thru the process being arrested, subjected to a preliminary investigation, arraigned and required to plead and stand trial may be avoided. Wherefore, the writ of prohibition is granted and the preliminary injunction heretofore issued made permanent, with costs de oficio. Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera and Paredes, JJ., concur. EN BANC G.R. No. L-25795 October 29, 1966

ANGELINA MEJIA LOPEZ, AURORA MEJIA VILLASOR, ROY P. VILLASOR, petitioners, vs. THE CITY JUDGE, CESAR L. PARAS, TRINIDAD T. LAZATIN, and TERRA DEVELOPMENT CORPORATION,respondents. San Juan, Africa and Benedicto and Antonio C. Amor and Associates for petitioners. Quasha, Asperilla, Blanco, Zafra and Tayag for respondents. DIZON, J.: In the month of February 1964, petitioners Roy P. Villasor, as administrator of the intestate estate of the spouses Manuel M. Mejia and Gloria Lazatin (Special Proceedings No. 48181 of the Court of First Instance of Manila), together with his co-petitioners Angelina Mejia Lopez and Aurora Mejia Villasor and other heirs of said spouses, entered into a contract with respondent Trinidad T. Lazatin for the development and subdivision of three parcels of land belonging to said intestate estate. Subsequently Lazatin transferred his rights under the contract to the Terra Development Corporation. Months later, petitioners and other co-heirs filed an action in the Court of First Instance of Quezon City (Civil Case No. Q8344) for the rescission of said contract for alleged gross and willful violation of its terms. Thereafter, Lazatin and the Terra Development Corporation, in turn, filed with the Fiscal's Office of the City of Angeles a complaint against petitioners for an alleged violation of the provisions of Article 172 in relation to those of Article 171, paragraph 4, of the Revised Penal Code. After conducting a preliminary examination in connection therewith, the City 26

Fiscal of Angeles filed with the Court of said City an information charging petitioners with the crime of falsification of a private document upon the allegation that they made it appear in the contract mentioned heretofore that Aurora M. Villasor was the "guardian" of the minor George L. Mejia and that Angelina M. Lopez was similarly the "guardian" of the minor Alexander L. Mejia, when in truth and in fact they knew that they were not the guardians of said minors on the date of the execution of the document (Criminal Case No. C-2268). Upon petition of the parties thus charged, the City Fiscal of Angeles reinvestigated the case on March 7, 1965 to give them an opportunity to present exculpatory evidence, and after the conclusion of the reinvestigation the parties charged moved for the dismissal of the case mainly on the ground that the City Court of Angeles had no jurisdiction over the offense because the private document that contained the alleged false statement of fact was signed by them outside the territorial limits of said city. As the resolution of this motion to dismiss was delayed and in the meantime the City Court had set Criminal Case No. C-2268 for arraignment, the defendants secured from said court several postponements of the arraignment. Finally, in view of the City Fiscal's continued failure to act on the motion to dismiss the case, petitioners filed on November 26, 1965 with the City Court a motion to quash upon the ground that said court had no jurisdiction over the offense charged. The complainants in the case with the conformity of the City Fiscal filed an opposition thereto, and on February 3, 1966 the respondent judge denied said motion to quash and reset the arraignment of all the defendants on March 5 of the same year. In view thereof, petitioners filed the present action for certiorari and prohibition. Upon the foregoing facts the only question to be resolved is whether or not the City Court of Angeles City has jurisdiction to try and decide Criminal Case No. C-2268 for alleged falsification of a private document by the parties named in the information. It is clear that petitioners are not charged with having used a falsified document, in violation of the last paragraph of Article 172 of the Revised Penal Code. The charge against them is that of having falsified a private document by knowingly and willfully stating therein that Aurora M. Villasor and Angelina M. Lopez were the "guardians" of their minor brothers George and Alexander, respectively, when in fact they knew that, at the time they made such written statement, it was

Carolina M. de Castro who was the judicial guardian of said minors. It is settled law in criminal actions that the place where the criminal offense was committed not only determines the venue of the action but is an essential element of jurisdiction (U.S. vs. Pagdayuman 5 Phil. 265). Thus, under the provisions of Section 86 of the Judiciary Act of 1948, municipal courts have original jurisdiction only over criminal offenses committed within their respective territorial jurisdiction. In the present case, it is the claim of petitioners a claim supported by the record that Angelina M. Lopez and Aurora M. Villasor signed the private document wherein they are alleged to have made a false statement of fact, the first within the territorial jurisdiction of Makati, and the second within the territorial jurisdiction of Quezon City, both within the province of Rizal. We now come to consider the question of when and where is the offense of falsification of a private document deemed consummated or committed. Upon this point, We have ruled clearly and definitely in U.S. vs. Infante, 36 Phil. 146, that the crime of falsification of a private document defined and penalized by Article 304 of the Penal Code (now paragraph 2, Article 172 of the Revised Penal Code) is consummated when such document is actually falsified with the intent to prejudice a third person, whether such falsified document is or is not thereafter put to the illegal use for which it was intended. Again in U.S. vs. Barretto, 36 Phil. p. 207, We said: . . . The contention of counsel would seem to be that the information was defective, in that it fails to set forth expressly the place where improper and illegal use was made of the falsified document, an allegation which counsel for appellant insists was absolutely essential for the proper determination of the court clothed with jurisdiction over the alleged offense. But under the definition of the crime of falsification of a private document as set forth in Article 304 of the Penal Code, the offense is consummated at the time when and at the place where the document is falsified to the prejudice of or with the intent to prejudice a third person, and this whether the falsified document is or is not put to the improper or illegal use for which it was intended. It is evident, therefore, that the place where the crime is committed is the place

where the document is actually falsified, and that the improper or illegal use of the document thereafter is in no wise a material or essential element of the crime of falsification of a private document; . . . . Applying the above ruling to the facts before Us, it would appear that if the private document subject of the information was falsified by the persons therein charged, the act of falsification the signing of the document and the coetaneous intent to cause damage was committed and consummated outside the territorial jurisdiction of the City of Angeles, and that whether the falsified private document was thereafter put or not put to the illegal use for which it was intended, or was signed by the other contracting party within the territorial jurisdiction of the City of Angeles is in no wise a material or essential element of the crime of falsification of the private document, nor could it in any way change the fact that the act of falsification charged was committed outside the territorial jurisdiction of Angeles City. Thus, that the City Court of Angeles has, no jurisdiction over the offense charged is beyond question. Respondents, however, contend that the motion to quash filed by the defendants necessarily assumes the truth of the allegation of the information to the effect that the offense was committed within the territorial jurisdiction of Angeles City and that they may not be allowed to disprove this at this early stage of the proceedings. This is not exactly the law on the matter at present. It was the law applicable to a demurrer now obsolete to an information. The motion to quash now provided for in Rule 117 of the Rules of Court is manifestly broader in scope than the demurrer, as it is not limited to defects apparent upon the face of the complaint or information but extends to issues arising out of extraneous facts, as shown by the circumstance that, among the grounds for a motion to quash, Section 2 of said Rule provides for former jeopardy or acquittal, extinction of criminal action or liability, insanity of the accused etc., which necessarily involve questions of fact in the determination of which a preliminary trial is required. In the present case, the portion of the record of the reinvestigation which was submitted to the respondent judge for consideration in connection with the resolution of the motion to quash filed by the defendants shows beyond question that the offense charged was committed far beyond the territorial jurisdiction of Angeles City.

27

On the propriety of the writs prayed for, it may be said that, as a general rule, a court of equity will not issue a writ of certiorari to annul an order of a lower court denying a motion to quash, nor issue a writ of prohibition to prevent said court from proceeding with the case after such denial, it being the rule that upon such denial the defendant should enter his plea of not guilty and go to trial and, if convicted, raise on appeal the same legal questions covered by his motion to quash. In this as well as in other jurisdictions however, this is no longer the hard and fast rule. The writs of certiorari and prohibition, as extra-ordinary legal remedies, are, in the ultimate analysis, intended to annul void proceedings; to prevent the unlawful and oppressive exercise of legal authority and to provide for a fair and orderly administration of justice. Thus, in Yu Kong Eng vs. Trinidad, 47 Phil. 385, We took cognizance of a petition for certiorari and prohibition although the accused in the case could have appealed in due time from the order complained of, our action in the premises being based on the public welfare and the advancement of public policy. In Dimayuga vs. Fajardo, 43 Phil. 304, We also admitted a petition to restrain the prosecution of certain chiropractors although, if convicted, they could have appealed. We gave due course to their petition for the orderly administration of justice and to avoid possible oppression by the strong arm of the law. And in Arevalo vs. Nepomuceno, 63 Phil. 627, the petition for certiorari challenging the trial court's action admitting an amended information was sustained despite the availability of appeal at the proper time. More recently, We said the following in Yap vs. the Hon. D. Lutero, etc., G.R. No. L-12669, April 30, 1959: Manifestly, the denial, by respondent herein, of the motion to quash the information in case No. 16443, may not be characterized as "arbitrary" or "despotic", or to be regarded as amounting to "lack of jurisdiction". The proper procedure, in the event of denial of a motion to quash, is for the accused, upon arraignment, to plead not guilty and reiterate his defense of former jeopardy, and, in case of conviction, to appeal therefrom, upon the ground that he has been twice put in jeopardy of punishment, either for the same offense, or for the same act, as the case may be. However, were we to require adherence to this pretense, the case at bar would have to be dismissed and petitioner required to go through the inconvenience, not to say the mental agony and torture, of

submitting himself to trial on the merits in case No. 16443, apart from the expenses incidental thereto, despite the fact that his trial and conviction therein would violate one of his constitutional rights, and that, on appeal to this Court, we would, therefore, have to set aside the judgment of conviction of the lower court. This would, obviously, be most unfair and unjust. Under the circumstances obtaining in the present case, the flaw in the procedure followed by petitioner herein may be overlooked, in the interest of a more enlightened and substantial justice. Indeed, the lack of jurisdiction of the City Court of Angeles over the criminal offense charged being patent, it would be highly unfair to compel the parties charged to undergo trial in said court and suffer all the embarrassment and mental anguish that go with it. WHEREFORE, judgment is hereby rendered declaring that the offense charged in the information filed in Criminal Case No. C-2268 of the City Court of Angeles City is not within the jurisdiction of said court and that, therefore, said court is hereby restrained and prohibited from further proceedings therein. Costs against the private respondents. Concepcion, C.J., Reyes, J.B.L., Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ., concur. SECOND DIVISION G.R. No. L-60033 April 4, 1984 TEOFISTO GUINGONA, JR., ANTONIO I. MARTIN, and TERESITA SANTOS, petitioners, vs. THE CITY FISCAL OF MANILA, HON. JOSE B. FLAMINIANO, ASST. CITY FISCAL FELIZARDO N. LOTA and CLEMENT DAVID, respondents.

On March 31, 1982, by virtue of a court resolution issued by this Court on the same date, a temporary restraining order was duly issued ordering the respondents, their officers, agents, representatives and/or person or persons acting upon their (respondents') orders or in their place or stead to refrain from proceeding with the preliminary investigation in Case No. 8131938 of the Office of the City Fiscal of Manila (pp. 47-48, rec.). On January 24, 1983, private respondent Clement David filed a motion to lift restraining order which was denied in the resolution of this Court dated May 18, 1983. As can be gleaned from the above, the instant petition seeks to prohibit public respondents from proceeding with the preliminary investigation of I.S. No. 81-31938, in which petitioners were charged by private respondent Clement David, with estafa and violation of Central Bank Circular No. 364 and related regulations regarding foreign exchange transactions principally, on the ground of lack of jurisdiction in that the allegations of the charged, as well as the testimony of private respondent's principal witness and the evidence through said witness, showed that petitioners' obligation is civil in nature. For purposes of brevity, We hereby adopt the antecedent facts narrated by the Solicitor General in its Comment dated June 28,1982, as follows:t.hqw On December 23,1981, private respondent David filed I.S. No. 81-31938 in the Office of the City Fiscal of Manila, which case was assigned to respondent Lota for preliminary investigation (Petition, p. 8). In I.S. No. 81-31938, David charged petitioners (together with one Robert Marshall and the following directors of the Nation Savings and Loan Association, Inc., namely Homero Gonzales, Juan Merino, Flavio Macasaet, Victor Gomez, Jr., Perfecto Manalac, Jaime V. Paz, Paulino B. Dionisio, and one John Doe) with estafa and violation of Central Bank Circular No. 364 and related Central Bank regulations on foreign exchange transactions, allegedly committed as follows (Petition, Annex "A"):t.hqw "From March 20, 1979 to March, 1981, David invested with the Nation Savings and Loan Association, (hereinafter called NSLA) the sum of P1,145,546.20 on nine deposits, P13,531.94 on savings account deposits (jointly with his sister, Denise Kuhne), US$10,000.00 on time deposit, US$15,000.00 under a receipt and guarantee of payment and US$50,000.00 under a receipt dated June 8, 1980 (au jointly with 28

MAKASIAR, Actg. C.J.:+.wph!1 This is a petition for prohibition and injunction with a prayer for the immediate issuance of restraining order and/or writ of preliminary injunction filed by petitioners on March 26, 1982.

Denise Kuhne), that David was induced into making the aforestated investments by Robert Marshall an Australian national who was allegedly a close associate of petitioner Guingona Jr., then NSLA President, petitioner Martin, then NSLA Executive Vice-President of NSLA and petitioner Santos, then NSLA General Manager; that on March 21, 1981 N LA was placed under receivership by the Central Bank, so that David filed claims therewith for his investments and those of his sister; that on July 22, 1981 David received a report from the Central Bank that only P305,821.92 of those investments were entered in the records of NSLA; that, therefore, the respondents in I.S. No. 81-31938 misappropriated the balance of the investments, at the same time violating Central Bank Circular No. 364 and related Central Bank regulations on foreign exchange transactions; that after demands, petitioner Guingona Jr. paid only P200,000.00, thereby reducing the amounts misappropriated to P959,078.14 and US$75,000.00." Petitioners, Martin and Santos, filed a joint counteraffidavit (Petition, Annex' B') in which they stated the following.t.hqw "That Martin became President of NSLA in March 1978 (after the resignation of Guingona, Jr.) and served as such until October 30, 1980, while Santos was General Manager up to November 1980; that because NSLA was urgently in need of funds and at David's insistence, his investments were treated as special- accounts with interest above the legal rate, an recorded in separate confidential documents only a portion of which were to be reported because he did not want the Australian government to tax his total earnings (nor) to know his total investments; that all transactions with David were recorded except the sum of US$15,000.00 which was a personal loan of Santos; that David's check for US$50,000.00 was cleared through Guingona, Jr.'s dollar account because NSLA did not have one, that a draft of US$30,000.00 was placed in the name of one Paz Roces because of a pending transaction with her; that the Philippine Deposit Insurance Corporation had already reimbursed David within the legal limits; that majority of the stockholders of NSLA had filed Special Proceedings No. 82-1695 in the Court of First Instance to contest its (NSLA's) closure; that after NSLA was placed under receivership, Martin executed a promissory note in David's favor and caused the transfer to him of a nine and on behalf (9 1/2) carat diamond ring with a

net value of P510,000.00; and, that the liabilities of NSLA to David were civil in nature." Petitioner, Guingona, Jr., in his counter-affidavit (Petition, Annex' C') stated the following:t.hqw "That he had no hand whatsoever in the transactions between David and NSLA since he (Guingona Jr.) had resigned as NSLA president in March 1978, or prior to those transactions; that he assumed a portion o; the liabilities of NSLA to David because of the latter's insistence that he placed his investments with NSLA because of his faith in Guingona, Jr.; that in a Promissory Note dated June 17, 1981 (Petition, Annex "D") he (Guingona, Jr.) bound himself to pay David the sums of P668.307.01 and US$37,500.00 in stated installments; that he (Guingona, Jr.) secured payment of those amounts with second mortgages over two (2) parcels of land under a deed of Second Real Estate Mortgage (Petition, Annex "E") in which it was provided that the mortgage over one (1) parcel shall be cancelled upon payment of one-half of the obligation to David; that he (Guingona, Jr.) paid P200,000.00 and tendered another P300,000.00 which David refused to accept, hence, he (Guingona, Jr.) filed Civil Case No. Q-33865 in the Court of First Instance of Rizal at Quezon City, to effect the release of the mortgage over one (1) of the two parcels of land conveyed to David under second mortgages." At the inception of the preliminary investigation before respondent Lota, petitioners moved to dismiss the charges against them for lack of jurisdiction because David's claims allegedly comprised a purely civil obligation which was itself novated. Fiscal Lota denied the motion to dismiss (Petition, p. 8). But, after the presentation of David's principal witness, petitioners filed the instant petition because: (a) the production of the Promisory Notes, Banker's Acceptance, Certificates of Time Deposits and Savings Account allegedly showed that the transactions between David and NSLA were simple loans, i.e., civil obligations on the part of NSLA which were novated when Guingona, Jr. and Martin assumed them; and (b) David's principal witness allegedly testified that the duplicate originals of the aforesaid instruments of indebtedness were all on file with NSLA, contrary to David's claim that some of his investments were not record (Petition, pp. 8-9).

Petitioners alleged that they did not exhaust available administrative remedies because to do so would be futile (Petition, p. 9) [pp. 153-157, rec.]. As correctly pointed out by the Solicitor General, the sole issue for resolution is whether public respondents acted without jurisdiction when they investigated the charges (estafa and violation of CB Circular No. 364 and related regulations regarding foreign exchange transactions) subject matter of I.S. No. 81-31938. There is merit in the contention of the petitioners that their liability is civil in nature and therefore, public respondents have no jurisdiction over the charge of estafa. A casual perusal of the December 23, 1981 affidavit. complaint filed in the Office of the City Fiscal of Manila by private respondent David against petitioners Teopisto Guingona, Jr., Antonio I. Martin and Teresita G. Santos, together with one Robert Marshall and the other directors of the Nation Savings and Loan Association, will show that from March 20, 1979 to March, 1981, private respondent David, together with his sister, Denise Kuhne, invested with the Nation Savings and Loan Association the sum of P1,145,546.20 on time deposits covered by Bankers Acceptances and Certificates of Time Deposits and the sum of P13,531.94 on savings account deposits covered by passbook nos. 6-632 and 29-742, or a total of P1,159,078.14 (pp. 15-16, roc.). It appears further that private respondent David, together with his sister, made investments in the aforesaid bank in the amount of US$75,000.00 (p. 17, rec.). Moreover, the records reveal that when the aforesaid bank was placed under receivership on March 21, 1981, petitioners Guingona and Martin, upon the request of private respondent David, assumed the obligation of the bank to private respondent David by executing on June 17, 1981 a joint promissory note in favor of private respondent acknowledging an indebtedness of Pl,336,614.02 and US$75,000.00 (p. 80, rec.). This promissory note was based on the statement of account as of June 30, 1981 prepared by the private respondent (p. 81, rec.). The amount of indebtedness assumed appears to be bigger than the original claim because of the added interest and the inclusion of other deposits of private respondent's sister in the amount of P116,613.20. Thereafter, or on July 17, 1981, petitioners Guingona and Martin agreed to divide the said indebtedness, and petitioner Guingona executed another promissory note antedated to June 17, 1981 whereby he personally 29

acknowledged an indebtedness of P668,307.01 (1/2 of P1,336,614.02) and US$37,500.00 (1/2 of US$75,000.00) in favor of private respondent (p. 25, rec.). The aforesaid promissory notes were executed as a result of deposits made by Clement David and Denise Kuhne with the Nation Savings and Loan Association. Furthermore, the various pleadings and documents filed by private respondent David, before this Court indisputably show that he has indeed invested his money on time and savings deposits with the Nation Savings and Loan Association. It must be pointed out that when private respondent David invested his money on nine. and savings deposits with the aforesaid bank, the contract that was perfected was a contract of simple loan or mutuum and not a contract of deposit. Thus, Article 1980 of the New Civil Code provides that:t.hqw Article 1980. Fixed, savings, and current deposits of-money in banks and similar institutions shall be governed by the provisions concerning simple loan. In the case of Central Bank of the Philippines vs. Morfe (63 SCRA 114,119 [1975], We said:t.hqw It should be noted that fixed, savings, and current deposits of money in banks and similar institutions are hat true deposits. are considered simple loans and, as such, are not preferred credits (Art. 1980 Civil Code; In re Liquidation of Mercantile Batik of China Tan Tiong Tick vs. American Apothecaries Co., 66 Phil 414; Pacific Coast Biscuit Co. vs. Chinese Grocers Association 65 Phil. 375; Fletcher American National Bank vs. Ang Chong UM 66 PWL 385; Pacific Commercial Co. vs. American Apothecaries Co., 65 PhiL 429; Gopoco Grocery vs. Pacific Coast Biscuit CO.,65 Phil. 443)." This Court also declared in the recent case of Serrano vs. Central Bank of the Philippines (96 SCRA 102 [1980]) that:t.hqw Bank deposits are in the nature of irregular deposits. They are really 'loans because they earn interest. All kinds of bank deposits, whether fixed, savings, or current are to be treated as loans and are to be covered by the law on loans (Art. 1980 Civil Code Gullas vs. Phil.

National Bank, 62 Phil. 519). Current and saving deposits, are loans to a bank because it can use the same. The petitioner here in making time deposits that earn interests will respondent Overseas Bank of Manila was in reality a creditor of the respondent Bank and not a depositor. The respondent Bank was in turn a debtor of petitioner. Failure of the respondent Bank to honor the time deposit is failure to pay its obligation as a debtor and not a breach of trust arising from a depositary's failure to return the subject matter of the deposit (Emphasis supplied). Hence, the relationship between the private respondent and the Nation Savings and Loan Association is that of creditor and debtor; consequently, the ownership of the amount deposited was transmitted to the Bank upon the perfection of the contract and it can make use of the amount deposited for its banking operations, such as to pay interests on deposits and to pay withdrawals. While the Bank has the obligation to return theamount deposited, it has, however, no obligation to return or deliver the same money that was deposited. And, the failure of the Bank to return the amount deposited will not constitute estafa through misappropriation punishable under Article 315, par. l(b) of the Revised Penal Code, but it will only give rise to civil liability over which the public respondents have no- jurisdiction. WE have already laid down the rule that:t.hqw In order that a person can be convicted under the above-quoted provision, it must be proven that he has the obligation to deliver or return the some money, goods or personal property that he received Petitioners had no such obligation to return the same money, i.e., the bills or coins, which they received from private respondents. This is so because as clearly as stated in criminal complaints, the related civil complaints and the supporting sworn statements, the sums of money that petitioners received were loans. The nature of simple loan is defined in Articles 1933 and 1953 of the Civil Code.t.hqw "Art. 1933. By the contract of loan, one of the parties delivers to another, either something not consumable so that the latter may use the same for a certain time- and return it, in which case the contract is called a commodatum; or

money or other consumable thing, upon the condition that the same amount of the same kind and quality shall he paid in which case the contract is simply called a loan or mutuum. "Commodatum is essentially gratuitous. "Simple loan may be gratuitous or with a stipulation to pay interest. "In commodatum the bailor retains the ownership of the thing loaned while in simple loan, ownership passes to the borrower. "Art. 1953. A person who receives a loan of money or any other fungible thing acquires the ownership thereof, and is bound to pay to the creditor an equal amount of the same kind and quality." It can be readily noted from the above-quoted provisions that in simple loan (mutuum), as contrasted to commodatum the borrower acquires ownership of the money, goods or personal property borrowed Being the owner, the borrower can dispose of the thing borrowed (Article 248, Civil Code) and his act will not be considered misappropriation thereof' (Yam vs. Malik, 94 SCRA 30, 34 [1979]; Emphasis supplied). But even granting that the failure of the bank to pay the time and savings deposits of private respondent David would constitute a violation of paragraph 1(b) of Article 315 of the Revised Penal Code, nevertheless any incipient criminal liability was deemed avoided, because when the aforesaid bank was placed under receivership by the Central Bank, petitioners Guingona and Martin assumed the obligation of the bank to private respondent David, thereby resulting in the novation of the original contractual obligation arising from deposit into a contract of loan and converting the original trust relation between the bank and private respondent David into an ordinary debtor-creditor relation between the petitioners and private respondent. Consequently, the failure of the bank or petitioners Guingona and Martin to pay the deposits of private respondent would not constitute a breach of trust but would merely be a failure to pay the obligation as a debtor. Moreover, while it is true that novation does not extinguish criminal liability, it may however, prevent the rise of criminal liability as long as it occurs prior to the filing of the 30

criminal information in court. Thus, in Gonzales vs. Serrano ( 25 SCRA 64, 69 [1968]) We held that:t.hqw As pointed out in People vs. Nery, novation prior to the filing of the criminal information as in the case at bar may convert the relation between the parties into an ordinary creditordebtor relation, and place the complainant in estoppel to insist on the original transaction or "cast doubt on the true nature" thereof. Again, in the latest case of Ong vs. Court of Appeals (L58476, 124 SCRA 578, 580-581 [1983] ), this Court reiterated the ruling in People vs. Nery ( 10 SCRA 244 [1964] ), declaring that:t.hqw The novation theory may perhaps apply prior to the filling of the criminal information in court by the state prosecutors because up to that time the original trust relation may be converted by the parties into an ordinary creditor-debtor situation, thereby placing the complainant in estoppel to insist on the original trust. But after the justice authorities have taken cognizance of the crime and instituted action in court, the offended party may no longer divest the prosecution of its power to exact the criminal liability, as distinguished from the civil. The crime being an offense against the state, only the latter can renounce it (People vs. Gervacio, 54 Off. Gaz. 2898; People vs. Velasco, 42 Phil. 76; U.S. vs. Montanes, 8 Phil. 620). It may be observed in this regard that novation is not one of the means recognized by the Penal Code whereby criminal liability can be extinguished; hence, the role of novation may only be to either prevent the rise of criminal habihty or to cast doubt on the true nature of the original basic transaction, whether or not it was such that its breach would not give rise to penal responsibility, as when money loaned is made to appear as a deposit, or other similar disguise is resorted to (cf. Abeto vs. People, 90 Phil. 581; U.S. vs. Villareal, 27 Phil. 481). In the case at bar, there is no dispute that petitioners Guingona and Martin executed a promissory note on June 17, 1981 assuming the obligation of the bank to private respondent David; while the criminal complaint for estafa was filed on December 23, 1981 with the Office of the City Fiscal. Hence, it is clear that novation occurred

long before the filing of the criminal complaint with the Office of the City Fiscal. Consequently, as aforestated, any incipient criminal liability would be avoided but there will still be a civil liability on the part of petitioners Guingona and Martin to pay the assumed obligation. Petitioners herein were likewise charged with violation of Section 3 of Central Bank Circular No. 364 and other related regulations regarding foreign exchange transactions by accepting foreign currency deposit in the amount of US$75,000.00 without authority from the Central Bank. They contend however, that the US dollars intended by respondent David for deposit were all converted into Philippine currency before acceptance and deposit into Nation Savings and Loan Association. Petitioners' contention is worthy of behelf for the following reasons: 1. It appears from the records that when respondent David was about to make a deposit of bank draft issued in his name in the amount of US$50,000.00 with the Nation Savings and Loan Association, the same had to be cleared first and converted into Philippine currency. Accordingly, the bank draft was endorsed by respondent David to petitioner Guingona, who in turn deposited it to his dollar account with the Security Bank and Trust Company. Petitioner Guingona merely accommodated the request of the Nation Savings and loan Association in order to clear the bank draft through his dollar account because the bank did not have a dollar account. Immediately after the bank draft was cleared, petitioner Guingona authorized Nation Savings and Loan Association to withdraw the same in order to be utilized by the bank for its operations. 2. It is safe to assume that the U.S. dollars were converted first into Philippine pesos before they were accepted and deposited in Nation Savings and Loan Association, because the bank is presumed to have followed the ordinary course of the business which is to accept deposits in Philippine currency only, and that the transaction was regular and fair, in the absence of a clear and convincing evidence to the contrary (see paragraphs p and q, Sec. 5, Rule 131, Rules of Court). 3. Respondent David has not denied the aforesaid contention of herein petitioners despite the fact that it was raised. in petitioners' reply filed on May 7, 1982 to private respondent's comment and in the July 27, 1982

reply to public respondents' comment and reiterated in petitioners' memorandum filed on October 30, 1982, thereby adding more support to the conclusion that the US$75,000.00 were really converted into Philippine currency before they were accepted and deposited into Nation Savings and Loan Association. Considering that this might adversely affect his case, respondent David should have promptly denied petitioners' allegation. In conclusion, considering that the liability of the petitioners is purely civil in nature and that there is no clear showing that they engaged in foreign exchange transactions, We hold that the public respondents acted without jurisdiction when they investigated the charges against the petitioners. Consequently, public respondents should be restrained from further proceeding with the criminal case for to allow the case to continue, even if the petitioners could have appealed to the Ministry of Justice, would work great injustice to petitioners and would render meaningless the proper administration of justice. While as a rule, the prosecution in a criminal offense cannot be the subject of prohibition and injunction, this court has recognized the resort to the extraordinary writs of prohibition and injunction in extreme cases, thus:t.hqw On the issue of whether a writ of injunction can restrain the proceedings in Criminal Case No. 3140, the general rule is that "ordinarily, criminal prosecution may not be blocked by court prohibition or injunction." Exceptions, however, are allowed in the following instances:t.hqw "1. for the orderly administration of justice; "2. to prevent the use of the strong arm of the law in an oppressive and vindictive manner; "3. to avoid multiplicity of actions; "4. to afford adequate constitutional rights; protection to

"5. in proper cases, because the statute relied upon is unconstitutional or was held invalid" ( Primicias vs. Municipality of Urdaneta, Pangasinan, 93 SCRA 462, 469-470 [1979]; citing Ramos vs. Torres, 25 SCRA 557 [1968]; and Hernandez vs. Albano, 19 SCRA 95, 96 [1967]). 31

Likewise, in Lopez vs. The City Judge, et al. ( 18 SCRA 616, 621-622 [1966]), We held that:t.hqw The writs of certiorari and prohibition, as extraordinary legal remedies, are in the ultimate analysis, intended to annul void proceedings; to prevent the unlawful and oppressive exercise of legal authority and to provide for a fair and orderly administration of justice. Thus, in Yu Kong Eng vs. Trinidad, 47 Phil. 385, We took cognizance of a petition for certiorari and prohibition although the accused in the case could have appealed in due time from the order complained of, our action in the premises being based on the public welfare policy the advancement of public policy. InDimayuga vs. Fajardo, 43 Phil. 304, We also admitted a petition to restrain the prosecution of certain chiropractors although, if convicted, they could have appealed. We gave due course to their petition for the orderly administration of justice and to avoid possible oppression by the strong arm of the law. And in Arevalo vs. Nepomuceno, 63 Phil. 627, the petition for certiorari challenging the trial court's action admitting an amended information was sustained despite the availability of appeal at the proper time. WHEREFORE, THE PETITION IS HEREBY GRANTED; THE TEMPORARY RESTRAINING ORDER PREVIOUSLY ISSUED IS MADE PERMANENT. COSTS AGAINST THE PRIVATE RESPONDENT. SO ORDERED.1wph1.t Concepcion, Jr., Guerrero, De Castro and Escolin, JJ., concur. Abad Santos, J., concur in the result. Aquino, J., took no part. EN BANC G.R. No. L-59524 February 18, 1985

JUDGE RODOLFO ORTIZ, Presiding Judge of the Court of First Instance of Rizal, Branch XXXI (Quezon City) CITY FISCAL SERGIO APOSTOL of Quezon City; COL. BALBINO DIEGO and COL. ROMAN MADELLA, respondents.

GUTIERREZ, JR., J.: The petitioner invokes the constitutionally protected right to life and liberty guaranteed by the due process clause, alleging that no prima facie case has been established to warrant the filing of an information for subversion against him. Petitioner asks this Court to prohibit and prevent the respondents from using the iron arm of the law to harass, oppress, and persecute him, a member of the democratic opposition in the Philippines. The background of this case is a matter of public knowledge. A rash of bombings occurred in the Metro Manila area in the months of August, September and October of 1980. On September 6, 1980, one Victor Burns Lovely, Jr., a Philippine-born American citizen from Los Angeles, California, almost killed himself and injured his younger brother, Romeo, as a result of the explosion of a small bomb inside his room at the YMCA building in Manila. Found in Lovely's possession by police and military authorities were several pictures taken sometime in May, 1980 at the birthday party of former Congressman Raul Daza held at the latter's residence in a Los Angeles suburb. Petitioner Jovito R. Salonga and his wife were among those whose likenesses appeared in the group pictures together with other guests, including Lovely. As a result of the serious injuries he suffered, Lovely was brought by military and police authorities to the AFP Medical Center (V. Luna Hospital) where he was placed in the custody and detention of Col. Roman P. Madella, under the over-all direction of General Fabian Ver, head of the National Intelligence and Security Authority (NISA). Shortly afterwards, Mr. Lovely and his two brothers, Romeo and Baltazar Lovely were charged with subversion, illegal possession of explosives, and damage to property. On September 12, 1980, bombs once again exploded in Metro Manila including one which resulted in the death of an American lady who was shopping at Rustan's Supermarket in Makati and others which caused injuries to a number of persons. On September 20, 1980, the President's anniversary television radio press conference was broadcast. The younger brother of Victor Lovely, Romeo, was presented

during the conference. In his interview, Romeo stated that he had driven his elder brother, Victor, to the petitioner's house in Greenhills on two occasions. The first time was on August 20, 1980. Romeo stated that Victor did not bring any bag with him on that day when he went to the petitioner's residence and did not carry a bag when he left. The second time was in the afternoon of August 31, 1980 when he brought Victor only to the gate of the petitioner's house. Romeo did not enter the petitioner's residence. Neither did he return that day to pick up his brother. The next day, newspapers came out with almost Identical headlines stating in effect that petitioner had been linked to the various bombings in Metro Manila. Meanwhile, on September 25, 1980, Lovely was taken out of the hospital's intensive care unit and transferred to the office of Col. Madella where he was held incommunicado for some time. On the night of October 4, 1980, more bombs were reported to have exploded at three big hotels in Metro Manila, namely: Philippine Plaza, Century Park Sheraton and Manila Peninsula. The bombs injured nine people. A meeting of the General Military Council was called for October 6, 1980. On October 19, 1980, minutes after the President had finished delivering his speech before the International Conference of the American Society of Travel Agents at the Philippine International Convention Center, a small bomb exploded. Within the next twenty-four hours, arrest, search, and seizure orders (ASSOs) were issued against persons who were apparently implicated by Victor Lovely in the series of bombings in Metro Manila. One of them was herein petitioner. Victor Lovely offered himself to be a "state witness" and in his letter to the President, he stated that he will reveal everything he knows about the bombings. On October 21, 1980, elements of the military went to the hospital room of the petitioner at the Manila Medical Center where he was confined due to his recurrent and chronic ailment of bronchial asthma and placed him under arrest. The arresting officer showed the petitioner the ASSO form which however did not specify the charge or charges against him. For some time, the petitioner's lawyers were not permitted to visit him in his hospital room until this Court in the case of Ordoez v. Gen. Fabian Ver, et al., (G.R. No. 55345, October 28, 1980) issued an order directing that the petitioner's right to be visited by counsel be respected.

JOVITO R. SALONGA, petitioner, vs. HON. ERNANI CRUZ PAO, Presiding Judge of the Court of First Instance of Rizal Branch XVIII (Quezon City), HON.

32

On November 2, 1980, the petitioner was transferred against his objections from his hospital arrest to an isolation room without windows in an army prison camp at Fort Bonifacio, Makati. The petitioner states that he was not informed why he was transferred and detained, nor was he ever investigated or questioned by any military or civil authority. Subsequently, on November 27, 1980, the petitioner was released for humanitarian reasons from military custody and placed "under house arrest in the custody of Mrs. Lydia Salonga" still without the benefit of any investigation or charges. On December 10, 1980, the Judge Advocate General sent the petitioner a "Notice of Preliminary Investigation" in People v. Benigno Aquino, Jr., et al. (which included petitioner as a co-accused), stating that "the preliminary investigation of the above-entitled case has been set at 2:30 o'clock p.m. on December 12, 1980" and that petitioner was given ten (10) days from receipt of the charge sheet and the supporting evidence within which to file his counter-evidence. The petitioner states that up to the time martial law was lifted on January 17, 1981, and despite assurance to the contrary, he has not received any copies of the charges against him nor any copies of the so-called supporting evidence. On February 9, 1981, the records of the case were turned over by the Judge Advocate General's Office to the Ministry of Justice. On February 24, 1981, the respondent City Fiscal filed a complaint accusing petitioner, among others of having violated Republic Act No. 1700, as amended by P.D. 885 and Batas Pambansa Blg. 31 in relation to Article 142 of the Revised Penal Code. The inquest court set the preliminary investigation for March 17, 1981. On March 6, 1981, the petitioner was allowed to leave the country to attend a series of church conferences and undergo comprehensive medical examinations of the heart, stomach, liver, eye and ear including a possible removal of his left eye to save his right eye. Petitioner Salonga almost died as one of the principal victims of the dastardly bombing of a Liberal Party rally at Plaza Miranda on August 20, 1971. Since then, he has suffered serious disabilities. The petitioner was riddled with shrapnel and pieces still remain in various parts of his body. He has an AV fistula caused by a piece of shrapnel lodged one millimeter from his aorta. The petitioner has limited use of his one remaining hand and arms, is completely blind and physical in the left eye, and has scar like formations in the remaining right eye. He is totally deaf in the right ear and

partially deaf in the left ear. The petitioner's physical ailments led him to seek treatment abroad. On or around March 26, 1981, the counsel for petitioner was furnished a copy of an amended complaint signed by Gen. Prospero Olivas, dated March 12, 1981, charging the petitioner, along with 39 other accused with the violation of R.A. 1700, as amended by P.D. 885, Batas Pambansa Blg. 31 and P.D. 1736. Hearings for preliminary investigation were conducted. The prosecution presented as its witnesses Ambassador Armando Fernandez, the Consul General of the Philippines in Los Angeles, California, Col. Balbino Diego, PSC/NISA Chief, Investigation and Legal Panel of the Presidential Security Command and Victor Lovely himself. On October 15, 1981, the counsel for petitioner filed a motion to dismiss the charges against petitioner for failure of the prosecution to establish a prima facie case against him. On December 2, 1981, the respondent judge denied the motion. On January 4, 1982, he issued a resolution ordering the filing of an information for violation of the Revised Anti-Subversion Act, as amended, against forty (40) people, including herein petitioner. The resolutions of the respondent judge dated December 2, 1981 and January 4, 1982 are now the subject of the petition. It is the contention of the petitioner that no prima facie case has been established by the prosecution to justify the filing of an information against him. He states that to sanction his further prosecution despite the lack of evidence against him would be to admit that no rule of law exists in the Philippines today. After a painstaking review of the records, this Court finds the evidence offered by the prosecution utterly insufficient to establish a prima facie case against the petitioner. We grant the petition. However, before going into the merits of the case, we shall pass upon a procedural issue raised by the respondents. The respondents call for adherence to the consistent rule that the denial of a motion to quash or to dismiss, being interlocutory in character, cannot be questioned by certiorari; that since the question of dismissal will again be considered by the court when it decides the case, the movant has a plain, speedy and adequate remedy in the ordinary course of law; and that public interest dictates that criminal prosecutions should not be enjoined.

The general rule is correctly stated. However, the respondents fail to appreciate or take into account certain exceptions when a petition for certiorari is clearly warranted. The case at bar is one such exception. In the case of Mead v. Angel (115 SCRA 256) the same contentions were advanced by the respondents to wit: xxx xxx xxx

... Respondents advert to the rule that when a motion to quash filed by an accused in a criminal case shall be denied, the remedy of the accused-movant is not to file a petition for certiorari or mandamus or prohibition, the proper recourse being to go to trial, without prejudice to his right to reiterate the grounds invoked in his motion to quash if an adverse judgment is rendered against him, in the appeal that he may take therefrom in the manner authorized by law. (Mill v. People, et al., 101 Phil. 599; Echarol v. Purisima, et al., 13 SCRA 309.) On this argument, we ruled: There is no disputing the validity and wisdom of the rule invoked by the respondents. However, it is also recognized that, under certain situations, recourse to the extraordinary legal remedies of certiorari, prohibition or mandamus to question the denial of a motion to quash is considered proper in the interest of "more enlightened and substantial justice", as was so declared in "Yap v. Lutero, G.R. No. L-12669, April 30, 1969." Infinitely more important than conventional adherence to general rules of criminal procedure is respect for the citizen's right to be free not only from arbitrary arrest and punishment but also from unwarranted and vexatious prosecution. The integrity of a democratic society is corrupted if a person is carelessly included in the trial of around forty persons when on the very face of the record no evidence linking him to the alleged conspiracy exists. Ex-Senator Jovito Salonga, himself a victim of the still unresolved and heinous Plaza Miranda bombings, was arrested at the Manila Medical Center while hospitalized for bronchial asthma. When arrested, he was not informed of the nature of the charges against him. Neither was counsel allowed to talk to him until this Court intervened through the issuance of an order directing that his lawyers be permitted to visit him (Ordonez v. Gen. Fabian Ver, et al., G.R. No. 55345, October 28, 1980). Only after four months of detention was the petitioner informed for the first time of the nature of the charges against him. After the preliminary investigation, the petitioner moved to dismiss the complaint but the same was denied. Subsequently, the respondent judge issued a resolution ordering the filing of an information after finding that a 33

prima facie case had been established against an of the forty persons accused. In the light of the failure to show prima facie that the petitioner was probably guilty of conspiring to commit the crime, the initial disregard of petitioner's constitutional rights together with the massive and damaging publicity made against him, justifies the favorable consideration of this petition by this Court. With former Senator Benigno Aquino, Jr. now deceased, there are at least 38 other coaccused to be tried with the petitioner. The prosecution must present proof beyond reasonable doubt against each and every one of the 39 accused, most of whom have varying participations in the charge for subversion. The prosecution's star witness Victor Lovely and the only source of information with regard to the alleged link between the petitioner and the series of terrorist bombings is now in the United States. There is reason to believe the petitioner's citation of international news dispatches * that the prosecution may find it difficult if not infeasible to bring him back to the Philippines to testify against the petitioner. If Lovely refused to testify before an American federal grand jury how could he possibly be made to testify when the charges against the respondent come up in the course of the trial against the 39 accused. Considering the foregoing, we find it in the interest of justice to resolve at this stage the issue of whether or not the respondent judge gravely abused his discretion in issuing the questioned resolutions. The respondents contend that the prosecution introduce additional evidence during the trial and if evidence, by then, is not sufficient to prove petitioner's guilt, he would anyway be acquitted. Yes, under the circumstances of this case, at what cost only to the petitioner but to the basic fabric of criminal justice system? will the the but not our

testify on subversive organizations in the United States nowhere mentioned the petitioner as an organizer, officer or member of the Movement for Free Philippines (MFP), or any of the organizations mentioned in the complaint. Col. Diego, on the other hand, when asked what evidence he was able to gather against the petitioner depended only on the statement of Lovely "that it was the residence of ex-Senator Salonga where they met together with Renato Taada, one of the brains of the bombing conspiracy ... and the fact that Sen. Salonga has been meeting with several subversive personnel based in the U.S.A. was also revealed to me by Victor Burns Lovely; 11 and on the group pictures taken at former Congressman Raul Daza's birthday party. In concluding that a conspiracy exists to overthrow by violent means the government of the Philippines in the United States, his only bases were "documentary as well as physical and sworn statements that were referred to me or taken by me personally," which of course negate personal knowledge on his part. When asked by the court how he would categorize petitioner in any of the subversive organizations, whether petitioner was an organizer, officer or a member, the witness replied: A. To categorize former Senator Salonga if he were an organizer, he is an officer or he is a member, your Honor, please, we have to consider the surrounding circumstances and on his involvement: first, Senator Salonga wanted always to travel to the United States at least once a year or more often under the pretext of to undergo some sort of operation and participate in some sort of seminar. (t.s.n., April 21, 1981, pp- 14-15) Such testimony, being based on affidavits of other persons and purely hearsay, can hardly qualify as prima facie evidence of subversion. It should not have been given credence by the court in the first place. Hearsay evidence, whether objected to or not, -has no probative value as the affiant could not have been cross-examined on the facts stated therein. (See People v. Labinia, 115 SCRA 223; People v. Valero, 112 SCRA 661). Moreover, as Victor Lovely, himself, was personally examined by the court, there was no need for the testimony of Col. Diego. Thus, the inquest judge should have confined his investigation to Victor Burns Lovely, the sole witness whose testimony had apparently implicated petitioner in the bombings which eventually led to the filing of the information. Lovely's account of the petitioner's involvement with the former's bombing mission is found in his sworn statement made before Col. Diego and Lt. Col. Madella and taken on October 17, 1980 at the AFP Medical Center. Lovely was not presented as a prosecution or state witness but only as a defense witness for his two younger brothers,

Romeo and Baltazar, who were both included in the complaint but who were later dropped from the information. Victor Lovely was examined by his counsel and cross-examined by the fiscal. In the process, he Identified the statement which he made before Col. Diego and Lt. Col. Madella. After Lovely's testimony, the prosecution made a manifestation before the court that it was adopting Lovely as a prosecution witness. According to Lovely's statement, the following events took place: 36. Q. Did Psinakis tell you where to stay?

A. Yes, at first he told me to check-in at Manila Hotel or the Plaza Hotel where somebody would come to contact me and give the materials needed in the execution of my mission. I thought this was not safe so I disagreed with him. Mr. Psinakis changed the plan and instead told me to visit the residence of Ex-Sen. Jovito Salonga as often as I can and someone will meet me there to give the materials I needed to accomplish my mission 37. Q. Did you comply as instructed?

A. Yes, I arrived in Manila on August 20, 1980 and stayed at the residence of Mr. Johnny Chua, husband of my business partner, then I went to the Hospital where I visited my mother and checked-in at Room 303 of the YMCA at Concepcion Street, Manila. 38. Q. Did you visit the residence of former Senator Jovito Salonga as directed by Psinakis? A. I visited Sen. Salonga's place three (3) times, the first visit was August 20 or 21, and the last was 4:00 P.M. of August 31, 1980. In addition to these visits, I TALKED to him on the phone about three or four times. On my first visit, I told him "I am expecting an attache case from somebody which will be delivered to your house," for which Sen. Salonga replied "Wala namang nagpunta dito at wala namang attache case para sa iyo." However, if your attache case arrives, I'll just call you." I gave him my number. On my second visit, Salonga said, "I'll be very busy so just come back on the 31st of August at 4 P.M." On that date, I was with friends at Batulao Resort and had to hurry back to be at Salonga's place for the appointment. I arrived at Salonga's place at exactly 4 P.M. 39. Q. What happened then?

The term "prima facie evidence" denotes evidence which, if unexplained or uncontradicted, is sufficient to sustain the proposition it supports or to establish the facts, or to counter-balance the presumption of innocence to warrant a conviction. The question raised before us now is: Were the evidences against the petitioner uncontradicted and if they were unexplained or uncontradicted, would they, standing alone, sufficiently overcome the presumption of innocence and warrant his conviction? We do not think so. The records reveal that in finding a case against the petitioner, the respondent judge relied only on the testimonies of Col. Balbino Diego and Victor Lovely. Ambassador Armando Fernandez, when called upon to

A. I was ushered to the sala by Mrs. Salonga and after five minutes, Sen. Salonga joined me in the sala. Sen. 34

Salonga informed me that somebody will be coming to give me the attache case but did not tell me the name. 40. Q. Are there any subject matters you discuss while waiting for that somebody to deliver your materials? A. Yes, Salonga asked if Sen. Aquino and I have met, I explained to him the efforts of Raul Daza in setting up that meeting but I have previous business commitments at Norfolk, Virginia. I told him, however, that through the efforts of Raul Daza, I was able to talk with Ninoy Aquino in the airport telephone booth in San Francisco. He also asked about Raul Daza, Steve Psinakis and the latest opposition group activities but it seems he is well informed. 41. Q. How long did you wait until that somebody arrived? A. 41. Q. About thirty (30) minutes. What happened when the man arrived?

gave a different story which negates the above testimony insofar as the petitioner's participation was concerned: xxx xxx xxx

A.

I am really not quite sure, your Honor.

Q. Alright. You said initially it was social but then it became political. Was there any political action taken as a result of the party? A. Only political discussion, your Honor. (TSN, July 8, 1981, pp. 69-84). Counsel for petitioner also asked Lovely whether in view of the latter's awareness of the physical condition of petitioner, he really implicated petitioner in any of the bombings that occurred in Metro Manila. The fiscal objected without stating any ground. In sustaining the objection, the Court said: Sustained . . . The use of the word 'implicate' might expand the role of Mr. Salonga. In other words, you are widening the avenue of Mr. Salonga's role beyond the participation stated in the testimony of this witness about Mr. Salonga, at least, as far as the evidence is concerned, I supposed, is only being in the house of Mr. Salonga which was used as the contact point. He never mentions Mr. Salonga about the bombings. Now these words had to be put in the mouth of this witness. That would be unfair to Mr. Salonga. (TSN. July 8, 1981, p. 67) Respondent judge further said: COURT: As the Court said earlier, the parts or portions affecting Salonga only refers to the witness coming to Manila already then the matter of . . . I have gone over the statement and there is no mention of Salonga insofar as activities in the United States is concerned. I don't know why it concerns this cross-examination. ATTY. YAP: Because according to him, it was in pursuance of the plan that he came to Manila. COURT: According to him it was Aquino, Daza, and Psinakis who asked him to come here, but Salonga was introduced only when he (Lovely) came here. Now, the tendency of the question is also to connect Salonga to the activities in the United States. It seems to be the thrust of the questions. COURT:

Q. Who were the people that you contacted in Manila and for what purpose? A. Before I left for the Philippines, Mr. Psinakis told me to check in at the Manila Hotel or the Plaza Hotel, and somebody would just deliver the materials I would need. I disapproved of this, and I told him I would prefer a place that is familiar to me or who is close to me. Mr. Psinakis suggested the residence of Sen. Salonga. And so, I arrived in Manila on August 20, 1980, 1 made a call to Sen. Salonga, but he was out. The next day I made a call again. I was able to contact him. I made an appointment t see him. I went to Sen. Salonga's house the following day. I asked Sen. Salonga if someone had given him an attache case for me. He said nobody. Afterwards, I made three calls to Sen. Salonga. Sen. Salonga told me "call me again on the 31st of August. I did not call him, I just went to his house on the 31st of August at 4 P.M. A few minutes after my arrival Atty. Renato Taada arrived. When he had a chance to be near me, he (Atty. Tanada) whispered to me that he had the attache case and the materials I needed in his car. These materials were given to me by Atty. Tanada When I alighted at the Broadway Centrum. (Emphasis supplied) During the cross-examination, counsel for petitioner asked Lovely about the so-called destabilization plan which the latter mentioned in his sworn statement: Q. You mentioned in your statement taken on October 17, 1980, marked Exhibit "G" about the so-called destabilization plan of Aquino. When you attended the birthday party of Raul Daza wherein Jovito Salonga was also present, was this destabilization plan as alleged by you already formulated? WITNESS:

A. This man arrived and I was greatly surprised to see Atty. Renato Taada Jovy Salonga was the one who met him and as I observed parang nasa sariling bahay si Taada nung dumating. They talked for five (5) minutes in very low tones so I did not hear what they talked about. After their whispering conversations, Sen. Salonga left and at this time Atty. "Nits" Taada told me "Nasa akin ang kailangan mo, nasa kotse." 43. Q. Were the materials given to you?

A. When Sen. Salonga came back, we asked to be permitted to leave and I rode in Atty. "Nits" Taadas old Pontiac car colored dirty brown and proceeded to Broadway Centrum where before I alighted, Atty. Taada handed me a "Puma" bag containing all the materials I needed. xxx 45. Q. xxx xxx

What were the contents of the Puma bag?

A.

Not to my knowledge.

A. Ten (10) pieces of Westclox pocket watch with screw and wirings, ten (10) pieces electrical blasting caps 4" length, ten (10) pieces non-electrical blasting caps 1 " length, nine (9) pieces volts dry cell battery, two (2) improvised electrical testers. ten (10) plastic packs of high explosive about 1 pound weight each. However, in his interview with Mr. Ronnie Nathanielz which was aired on Channel 4 on November 8, 1980 and which was also offered as evidence by the accused, Lovely

COURT TO WITNESS: Q. A. Mr. Witness, who invited you to the party? Raul Daza, your Honor.

Q. Were you told that Mr. Salonga would be present in the party.

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In other words, the point of the Court as of the time when you asked him question, the focus on Salonga was only from the time when he met Salonga at Greenhills. It was the first time that the name of Salonga came up. There was no mention of Salonga in the formulation of the destabilization plan as affirmed by him. But you are bringing this up although you are only cross-examining for Salonga as if his (Lovely's) activities in the United States affected Salonga. (TSN. July 8, 1981, pp. 73-74). Apparently, the respondent judge wanted to put things in proper perspective by limiting the petitioner's alleged "participation" in the bombing mission only to the fact that petitioner's house was used as a "contact point" between Lovely and Taada, which was all that Lovely really stated in his testimony. However, in the questioned resolution dated December 2, 1981, the respondent judge suddenly included the "activities" of petitioner in the United States as his basis for denying the motion to dismiss: On the activities of Salonga in the United States, the witness, Lovely, in one of his statements declared: 'To the best of my recollection he mentioned of some kind of violent struggle in the Philippines being most likely should reforms be not instituted by President Marcos immediately. It is therefore clear that the prosecution's evidence has established facts and circumstances sufficient for a finding that excludes a Motion to Dismiss by respondent Salonga. The Movement for Free Philippines is undoubtedly a force born on foreign soil it appears to rely on the resources of foreign entities, and is being (sic) on gaining ascendancy in the Philippines with the use of force and for that purpose it has linked itself with even communist organizations to achieve its end. It appears to rely on aliens for its supporters and financiers. The jump from the "contact point" theory to the conclusion of involvement in subversive activities in the United States is not only inexplicable but without foundation. The respondents admit that no evidence was presented directly linking petitioner Salonga to actual acts of violence or terrorism. There is no proof of his direct participation in any overt acts of subversion. However, he is tagged as a leader of subversive organizations for two reasons(1) and Because his house was used as a "contactpoint";

(2) Because "he mentioned some kind of violent struggle in the Philippines being most likely should reforms be not instituted by President Marcos immediately." The "contact point" theory or what the petitioner calls the guilt by visit or guilt by association" theory is too tenuous a basis to conclude that Senator Salonga was a leader or mastermind of the bombing incidents. To indict a person simply because some plotters, masquerading as visitors, have somehow met in his house or office would be to establish a dangerous precedent. The right of citizens to be secure against abuse of governmental processes in criminal prosecutions would be seriously undermined. The testimony of Victor Lovely against petitioner Salonga is full of inconsistencies. Senator Salonga and Atty. Renato Taada could not have whispered to one another because the petitioner is almost totally deaf. Lovely could not have met Senator Salonga at a Manglapus party in Washington, D.C. in 1977 because the petitioner left for the United States only on November, 1978. Senator Salonga denies having known Mr. Lovely in the United States or in the Philippines. He states that he has hundred of visitors from week to week in his residence but cannot recall any Victor Lovely. The presence of Lovely in a group picture taken at Mr. Raul Daza's birthday party in Los Angeles where Senator Salonga was a guest is not proof of conspiracy. As stated by the petitioner, in his many years in the turbulent world of politics, he has posed with all kinds of people in various groups and various places and could not possibly vouch for their conduct. Commenting on the matter, newspaper columnist Teodoro Valencia stated that Filipinos love to pose with important visitors and the picture proves nothing. It is likewise probable that a national figure and former politician of Senator Salonga's stature can expect guests and visitors of all kinds to be visiting his home or office. If a rebel or subversive happens to pose with the petitioner for a group picture at a birthday party abroad, or even visit him with others in his home, the petitioner does not thereby become a rebel or subversive, much less a leader of a subversive group. More credible and stronger evidence is necessary for an indictment. Nonetheless, even if we discount the flaws in Lovely's testimony and dismiss the refutations and arguments of the petitioner, the prosecution evidence is still inadequate to establish a prima facie finding. The prosecution has not come up with even a single iota of evidence which could positively link the petitioner to any proscribed activities of the Movement for Free Philippines or any subversive organization mentioned in

the complaint. Lovely had already testified that during the party of former Congressman Raul Daza which was alleged to have been attended by a number of members of the MFP, no political action was taken but only political discussion. Furthermore, the alleged opinion of the petitioner about the likelihood of a violent struggle here in the Philippines if reforms are not instituted, assuming that he really stated the same, is nothing but a legitimate exercise of freedom of thought and expression. No man deserves punishment for his thoughts. Cogitationis poenam memo meretur. And as the late Justice Oliver W. Holmes stated in the case of U.S. v. Schwimmer, 279 U.S. 644, " ... if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought not free thought for those who agree with us but freedom for the thought that we hate." We have adopted the concept that freedom of expression is a "preferred" right and, therefore, stands on a higher level than substantive economic or other liberties. The primacy, the high estate accorded freedom of expression is a fundamental postulate of our constitutional system. (Gonzales v. Commission on Elections, 29 SCRA 835). As explained by Justice Cardozo in Palko v. Connecticut (302 U.S. 319) this must be so because the lessons of history, both political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of freedom. Protection is especially mandated for political discussions. This Court is particularly concerned when allegations are made that restraints have been imposed upon mere criticisms of government and public officials. Political discussion is essential to the ascertainment of political truth. It cannot be the basis of criminal indictments. The United States Supreme Court in Noto v. United States (367 U.S. 290) distinguished between the abstract teaching of the moral propriety or even moral necessity for a resort to force and violence and speech which would prepare a group for violent action and steel it to such action. In Watts v. United States (394 U.S. 705), the American court distinguished between criminal threats and constitutionally protected speech. It stated: We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. For we must interpret the language Congress chose against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. New 36

York Times Co. v. Sullivan (376 U.S. 254). The language of the political arena, like the language used in labor disputed is often vituperative abusive, and inexact. We agree with petitioner that his only offense was a kind of very crude offensive method of stating a political opposition to the President. In the case before us, there is no teaching of the moral propriety of a resort to violence, much less an advocacy of force or a conspiracy to organize the use of force against the duly constituted authorities. The alleged remark about the likelihood of violent struggle unless reforms are instituted is not a threat against the government. Nor is it even the uninhibited, robust, caustic, or unpleasantly sharp attack which is protected by the guarantee of free speech. Parenthetically, the American case of Brandenburg v. Ohio (395 U.S. 444) states that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. The words which petitioner allegedly used according to the best recollections of Mr. Lovely are light years away from such type of proscribed advocacy. Political discussion even among those opposed to the present administration is within the protective clause of freedom of speech and expression. The same cannot be construed as subversive activities per se or as evidence of membership in a subversive organization. Under Presidential Decree No. 885, Section 3, paragraph 6, political discussion will only constitute, prima facie evidence of membership in a subversive organization if such discussion amounts to: (6) Conferring with officers or other members of such association or organization in furtherance of any plan or enterprise thereof. As stated earlier, the prosecution has failed to produce evidence that would establish any link between petitioner and any subversive organization. Even if we lend credence to Lovely's testimony that a political discussion took place at Daza's birthday party, no proof whatsoever was adduced that such discussion was in furtherance of any plan to overthrow the government through illegal means. The alleged opinion that violent struggle is likely unless reforms are instituted by no means shows either advocacy of or incitement to violence or furtherance of the objectives of a subversive organization. Lovely also declared that he had nothing to do with the bombing on August 22, 1980, which was the only bombing incident that occurred after his arrival in Manila

on August 20, and before the YMCA explosion on September 6, 1980. (See TSN, pp. 63-63, July 8, 1981). He further testified that: WITNESS: Actually, it was not my intention to do some kind of bombing against the government. My bombing mission was directed against the particular family (referring to the Cabarrus family [TSN, p. 11, July 9, 1981] [Rollo, p. 10]. Such a statement wholly negates any politically motivated or subversive assignment which Lovely was supposed to have been commissioned to perform upon the orders of his co- accused and which was the very reason why they answer charged in the first place. The respondent judge also asked Lovely about the possible relation between Cabarrus and petitioner: COURT: Q. Did you suspect any relation between Cabarrus and Jovito Salonga, why did you implicate Jovito Salonga? A. No, your Honor. I did not try to implicate Salonga. It should be noted that after Lovely's testimony, the prosecution manifested to the court that it was adopting him as a prosecution witness. Therefore, the prosecution became irreversively bound by Lovely's disclaimers on the witness stand, that it was not his intention "to do some kind of bombing against the government" and that he "did not try to implicate Salonga", especially since Lovely is the sole witness adopted by the prosecution who could supposedly establish the link between the petitioner and the bombing incidents. The respondent court should have taken these factors into consideration before concluding that a prima facie case exists against the petitioner. Evidence must not only proceed from the mouth of a credible witness but it must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances. (People v. Dayad, 56 SCRA 439). In the case at bar, the prosecution cannot even present a credible version of the petitioner's role in the bombings even if it ignores the subsequent disclaimers of Lovely and without relying on mere affidavits including those made by Lovely during his detention. The resolution dated January 4, 1982 suffers from the same defect. In this resolution, Lovely's previous declarations about the bombings as part of the alleged

destabilization plan and the people behind the same were accorded such credibility by the respondent judge as if they had already been proved beyond reasonable doubt. The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive trials. (Trocio v. Manta, 118 SCRA 241; citing Hashim v. Boncan, 71 Phil. 216). The right to a preliminary investigation is a statutory grant, and to withhold it would be to transgress constitutional due process. (See People v. Oandasa, 25 SCRA 277) However, in order to satisfy the due process clause it is not enough that the preliminary investigation is conducted in the sense of making sure that a transgressor shall not escape with impunity. A preliminary investigation serves not only the purposes of the State. More important, it is a part of the guarantees of freedom and fair play which are birthrights of all who live in our country. It is, therefore, imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reasons (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizing and not denigrating constitutional rights. So it has been before. It should continue to be so. Mercado v. Court of First Instance of Rizal, 116 SCRA 93). The Court had already deliberated on this case, a consensus on the Court's judgment had been arrived at, and a draft ponencia was circulating for concurrences and separate opinions, if any, when on January 18, 1985, respondent Judge Rodolfo Ortiz granted the motion of respondent City Fiscal Sergio Apostol to drop the subversion case against the petitioner. Pursuant to instructions of the Minister of Justice, the prosecution restudied its evidence and decided to seek the exclusion 37

of petitioner Jovito Salonga as one of the accused in the information filed under the questioned resolution. We were constrained by this action of the prosecution and the respondent Judge to withdraw the draft ponencia from circulating for concurrences and signatures and to place it once again in the Court's crowded agenda for further deliberations. Insofar as the absence of a prima facie case to warrant the filing of subversion charges is concerned, this decision has been rendered moot and academic by the action of the prosecution. Respondent Fiscal Sergio Apostol correctly points out, however, that he is not precluded from filing new charges for the same acts because the petitioner has not been arraigned and double jeopardy does not apply. in that sense, the case is not completely academic. Recent developments in this case serve to focus attention on a not too well known aspect of the Supreme Court's functions. The setting aside or declaring void, in proper cases, of intrusions of State authority into areas reserved by the Bill of Rights for the individual as constitutionally protected spheres where even the awesome powers of Government may not enter at will is not the totality of the Court's functions. The Court also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection given by constitutional guarantees. In dela Camara v. Enage (41 SCRA 1), the petitioner who questioned a P1,195,200.00 bail bond as excessive and, therefore, constitutionally void, escaped from the provincial jail while his petition was pending. The petition became moot because of his escape but we nonetheless rendered a decision and stated: The fact that the case is moot and academic should not preclude this Tribunal from setting forth in language clear and unmistakable, the obligation of fidelity on the part of lower court judges to the unequivocal command of the Constitution that excessive bail shall not be required. In Gonzales v. Marcos (65 SCRA 624) whether or not the Cultural Center of the Philippines could validly be created through an executive order was mooted by Presidential Decree No. 15, the Center's new charter pursuant to the President's legislative powers under martial law. Stan, this

Court discussed the constitutional mandate on the preservation and development of Filipino culture for national Identity. (Article XV, Section 9, Paragraph 2 of the Constitution). In the habeas corpus case of Aquino, Jr., v. Enrile, 59 SCRA 183), during the pendency of the case, 26 petitioners were released from custody and one withdrew his petition. The sole remaining petitioner was facing charges of murder, subversion, and illegal possession of firearms. The fact that the petition was moot and academic did not prevent this Court in the exercise of its symbolic function from promulgating one of the most voluminous decisions ever printed in the Reports. In this case, the respondents agree with our earlier finding that the prosecution evidence miserably fails to establish a prima facie case against the petitioner, either as a coconspirator of a destabilization plan to overthrow the government or as an officer or leader of any subversive organization. They have taken the initiative of dropping the charges against the petitioner. We reiterate the rule, however, that this Court will not validate the filing of an information based on the kind of evidence against the petitioner found in the records. WHEREFORE, the petition is DISMISSED for having become moot and academic. SO ORDERED. Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana, Escolin, Relova and Cuevas, JJ., concur. Aquino, De la Fuente and Alampay, JJ., took no part.

the undersigned disagreed with the majority; we expressed the view that despite the release of the subject, the petition should have been resolved on the merits because it posed important legal questions. Babst et al. vs. National Intelligence Board, Special Committee No. 2, et al., G.R. No. 62992, Sept. 2, 1984, was a petition for prohibition to restrain the respondents from interrogating the petitioners, members of the print media, on various aspects of their works, feelings, sentiments, beliefs, associations and even their private lives. Again the majority of this Court dismissed the petition because the assailed proceedings had come to an end thereby rendering the petition moot and academic. In dismissing the petition a short and mild note of concern was added. And again Justice Teehankee and the undersigned disagreed with the majority. We expressed the view that this Court should rule squarely on the matters raised in the petition rather than dismiss it for having become moot and academic. I am glad that this Court has abandoned its cavalier treatment of petitions by dismissing them on the ground that they have become moot and academic and stopped there. I am glad it has reverted to De la Camara vs. Enage, Gonzales vs. Marcos and Aquino v. Enrile which are mentioned in the ponencia of Justice Gutierrez. I agree with the ponencia of Justice Gutierrez that because the subversion charges against the petitioner had been dropped by the trial court on January 18, 1985, there is no longer any need to prohibit the respondents from prosecuting Criminal Case No. Q-18606 insofar as he is concerned. I am not revealing any confidential matter by saying that the initial action of this Court was to grant the petition, i.e. prohibit the prosecution of the petitioner. This is manifest from the ponencia of Justice Gutierrez. I regret that on this matter the Court has been preempted by a "first strike" which has occurred once too often.

Separate Opinions

ABAD SANTOS, J., concurring Del Castillo vs. Ponce Enrile, G.R. No. 62119, August 27, 1984, 131 SCRA 405, was a petition for the writ of habeas corpus. Before this Court could finally act on the petition, the subject was released and for that reason the majority of this Court resolved to dismiss the petition for having become moot and academic. Justice Teehankee and

Justice Gutierrez states that, "The Court had already deliberated on this case, and a consensus on the Court's judgment had been arrived at." Let me add that the consensus had taken place as early as October 24, 1984, and the decision started to circulate for signature on November 2, 1984. Alas, on January 18, 1985, the decision was still circulating overtaken by events. The decision could have had a greater impact had it been promulgated prior to the executive action.

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Separate Opinions ABAD SANTOS, J., concurring Del Castillo vs. Ponce Enrile, G.R. No. 62119, August 27, 1984, 131 SCRA 405, was a petition for the writ of habeas corpus. Before this Court could finally act on the petition, the subject was released and for that reason the majority of this Court resolved to dismiss the petition for having become moot and academic. Justice Teehankee and the undersigned disagreed with the majority; we expressed the view that despite the release of the subject, the petition should have been resolved on the merits because it posed important legal questions. Babst et al. vs. National Intelligence Board, Special Committee No. 2, et al., G.R. No. 62992, Sept. 2, 1984, was a petition for prohibition to restrain the respondents from interrogating the petitioners, members of the print media, on various aspects of their works, feelings, sentiments, beliefs, associations and even their private lives. Again the majority of this Court dismissed the petition because the assailed proceedings had come to an end thereby rendering the petition moot and academic. In dismissing the petition a short and mild note of concern was added. And again Justice Teehankee and the undersigned disagreed with the majority. We expressed the view that this Court should rule squarely on the matters raised in the petition rather than dismiss it for having become moot and academic. I am glad that this Court has abandoned its cavalier treatment of petitions by dismissing them on the ground that they have become moot and academic and stopped there. I am glad it has reverted to De la Camara vs. Enage, Gonzales vs. Marcos and Aquino v. Enrile which are mentioned in the ponencia of Justice Gutierrez. I agree with the ponencia of Justice Gutierrez that because the subversion charges against the petitioner had been dropped by the trial court on January 18, 1985, there is no longer any need to prohibit the respondents from prosecuting Criminal Case No. Q-18606 insofar as he is concerned. I am not revealing any confidential matter by saying that the initial action of this Court was to grant the petition, i.e. prohibit the prosecution of the petitioner. This is manifest from the ponencia of Justice Gutierrez. I regret that on this matter the Court has been preempted by a "first strike" which has occurred once too often. Justice Gutierrez states that, "The Court had already deliberated on this case, and a consensus on the Court's

judgment had been arrived at." Let me add that the consensus had taken place as early as October 24, 1984, and the decision started to circulate for signature on November 2, 1984. Alas, on January 18, 1985, the decision was still circulating overtaken by events. The decision could have had a greater impact had it been promulgated prior to the executive action. Footnotes * In the Philippines Daily Express, dated December 8, 1981, Lovely was quoted as having said in the United States that "I was not the bomber, I was bombed." Lovely, who was granted immunity in the United States, reportedly would not testify before a San Francisco federal grand jury and instead said, "Your Honor, I came back to tell what happened in the Philippines. I was not the bomber, I was bombed." The United Press International dispatch from San Francisco, U.S., written by Spencer Sherman, gives a fuller account, thus: With the grand jury present in the courtroom Lovely alleged it was Philippine authorities who were responsible for his injuries. It was they, not him, who placed the bomb in his hotel room, he said. I came back to the States to tell what happened in the Philippines. I was not the bomber. I was bombed. There are so many secrets that will come out soon. I cannot (testify) even if I will be jailed for lifetime. I welcome that." UPO press dispatch from San Francisco, November 24, 1981. The Philippine News, a San Francisco-based weekly, in its issue of December 23, 1981, contains the same account, with the following words: "Your Honor . . . I am not going to participate I was almost murdered. I cannot continue. My friends were murdered before I came to the United States . . . I came back to the United States to tell what happened in the Philippines. I was not the bomber, I was bombed. There are many secrets that will come out very soon I cannot. Even if I will be jailed for lifetime. I welcome that."

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