Marbury v. Madison 5 U.S.

137 (1803)
[Marbury was appointed a justice of the peace, a minor judicial officer, in the District of Columbia, by President Adams
a few days before President Jefferson took office after defeating Adams in the election of 1800. Marburys position was
one of 42 positions created by the lame duck Congress (dominated by Adams Federalist party). Ironically, his
appointment was signed by Adams Secretary of State, John Marshall, who also was appointed and sworn-in as the Chief
Justice of the Supreme Court only days before Jefferson took office. Oddly, neither Adams nor Marshall delivered the
commission to Marbury before they left office, creating the basic circumstances from which this dispute arose.]
Marshall, Chief Justice. * * * At the last term on the affidavits then read and filed with the clerk, a rule was granted in
this case, requiring the secretary of state to show cause why a mandamus should not issue, directing him to deliver to
William Marbury his own commission as a justice of the peace for the county of Washington, in the District of Columbia.
No cause has been shown, and the present motion is for a mandamus. The peculiar delicacy of this case, the novelty of
some of its circumstances, and the real difficulty attending the points which occur in it, require a complete exposition of
the principles on which the opinion to be given by the court is founded. . . . .
In the order in which the court has viewed this subject, the following questions have been considered and decided. 1st.
Has the applicant a right to the commission he demands? 2d. If he has a right, and that right has been violated, do the
laws of his country afford him a remedy? 3d. If they do afford him a remedy, is it a mandamus issuing from this court?
The first object of inquiry is . . . [h]as the applicant a right to the commission he demands? His right originates in an act
of Congress passed in February 1801, concerning the District of Columbia. After dividing the district into two counties,
the 11th section of this law enacts, that there shall be appointed in and for each of the said counties, such number of
discreet persons to be justices of the peace as the president of the United States shall, from time to time, think
expedient, to continue in office for five years.[] It appears from the affidavits, that in compliance with this law, a
commission for William Marbury as a justice of peace for the county of Washington, was signed by John Adams, then
president of the United States; after which the seal of the United States was affixed to it; but the commission has never
reached the person for whom it was made out. In order to determine whether he is entitled to this commission, it
becomes necessary to inquire whether he has been appointed to the office. For if he has been appointed, the law
continues him in office for five years, and he is entitled to the possession of those evidences of office, which, being
completed, became his property.
The 2d section of the 2d article of the constitution declares, that the president shall nominate, and, by and with the
advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, and all other officers of
the United States, whose appointments are not otherwise provided for. The 3d section declares, that he shall
commission all the officers of the United States. An act of congress directs the secretary of state to keep the seal of the
United States, to make out and record, and affix the said seal to all civil commissions to officers of the United States to
be appointed by the president, by and with the consent of the senate, or by the president alone; provided that the said
seal shall not be affixed to any commission before the same shall have been signed by the president of the United
States. These are the clauses of the constitution and laws of the United States, which affect this part of the case. . . .
[The Court then examined whether the technical requirements for appointment of Mr. Marbury had been completed in
compliance with the requirements of the federal statute and the Constitution.] Mr. Marbury, then, since his commission
was signed by the president and sealed by the secretary of state, was appointed; and as the law creating the office gave
the officer a right to hold for five years independent of the executive, the appointment was not revocable, but vested in
the officer legal rights which are protected by the laws of his country. To withhold the commission, therefore, is an act
deemed by the court not warranted by law, but violative of a vested legal right. This brings us to the second inquiry;
which is . . . if he has a right, and that right has been violated, do the laws of his country afford him a remedy? The very
essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he
receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is
sued in the respectful form of a petition, and he never fails to comply with the judgment of his court. . . . . . . .
The government of the United States has been emphatically termed a government of laws, and not of men. It will
certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. If
this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar character of the case. It
behooves us then to inquire whether there be in its composition any ingredient which shall exempt from legal
investigation, or exclude the injured party from legal redress. In pursuing this inquiry the first question which presents
itself is, whether this can be arranged with that class of cases which come under the description of damnum absque
injuria; a loss without an injury. The description of cases never has been considered, and it is believed never can be
considered as comprehending offices of trust, of honour or of profit. The office of justice of peace in the District of

Columbia is such an office; it is therefore worthy of the attention and guardianship of the laws. It has received that
attention and guardianship. It has been created by special act of congress, and has been secured, so far as the laws can
give security to the person appointed to fill it, for five years. It is not, then, on account of the worthlessness of the thing
pursued, that the injured party can be alleged to be without remedy. Is it in the nature of the transaction? Is the act of
delivering or withholding a commission to be considered as a mere political act belonging to the executive department
alone, for the performance of which entire confidence is placed by our constitution in the supreme executive; and for
any misconduct respecting which, the injured individual has no remedy. That there may be such cases is not to be
questioned; but that every act of duty, to be performed in any of the great departments of government, constitutes
such a case, is not to be admitted. . . . . If some acts be examinable, and others not, there must be some rule of law to
guide the court in the exercise of its jurisdiction. In some instances there may be difficulty in applying the rule to
particular cases; but there cannot, it is believed, be much difficulty in laying down the rule.
By the constitution of the United States, the president is invested with certain important political powers, in the exercise
of which he is to use his own discretion, and is accountable only to his country in his political character and to his own
conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his
authority, and in conformity with his orders. In such cases, their acts are his acts; and whatever opinion may be
entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to
control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to
the executive, the decision of the executive is conclusive. . . . [The Court then reasoned that once the appointment was
complete, the delivery of the appointment was not a political act.] But when the legislature proceeds to impose on that
officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are
dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct;
and cannot at his discretion sport away the vested rights of others. The conclusion from this reasoning is, that where the
heads of departments are the political or confidential agents of the executive, merely to execute the will of the
President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be
more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and
individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers
himself injured, has a right to resort to the laws of his country for a remedy. If this be the rule, let us inquire how it
applies to the case under the consideration of the court. . . . . That, having this legal title to the office, he has a
consequent right to the commission; a refusal to deliver which is a plain violation of that right, for which the laws of his
country afford him a remedy. It remains to be inquired whether . . . [h]e is entitled to the remedy for which he applies.
This depends on,
1st. The nature of the writ applied for; and, 2d. The power of this court. 3d. The nature of the writ. . . . . [The Court then
considered whether this was an appropriate case for a writ of mandamus.] This, then, is a plain case of a mandamus,
either to deliver the commission, or a copy of it from the record; and it only remains to be inquired, [w]hether it can
issue from this court. The act to establish the judicial courts of the United States authorizes the supreme court to issue
writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed, or persons holding
office, under the authority of the United States. The secretary of state, being a person holding an office under the
authority of the United States, is precisely within the letter of the description, and if this court is not authorized to issue
a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely
incapable of conferring the authority, and assigning the duties which its words purport to confer and assign. The
constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as
congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the
laws of the United States; and consequently, in some form, may be exercised over the present case; because the right
claimed is given by a law of the United States. In the distribution of this power, it is declared that the Supreme Court
shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which
a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction. It has been insisted at the
bar, that as the original grant of jurisdiction, to the Supreme and inferior courts, is general, and the clause, assigning
original jurisdiction to the Supreme Court, contains no negative or restrictive words; the power remains to the
legislature to assign original jurisdiction to that court in other cases than those specified in the article which has been
recited; provided those cases belong to the judicial power of the United States. If it had been intended to leave it in the
discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the
will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial
power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely
without meaning, if such is to be the construction. If congress remains at liberty to give this court appellate jurisdiction

where the constitution has declared it shall be appellate; the distribution of jurisdiction, made in the constitution, is
form without substance. Affirmative words are often, in their operation, negative of other objects than those affirmed;
and in this case, a negative or exclusive sense must be given to them, or they have no operation at all. It cannot be
presumed that any clause in the constitution is intended to be without effect; and, therefore, such construction is
inadmissible, unless the words require it. If the solicitude of the convention, respecting our peace with foreign powers,
induced a provision that the Supreme Court should take original jurisdiction in cases which might be supposed to affect
them; yet the clause would have proceeded no further than to provide for such cases, if no further restriction on the
powers of congress had been intended. That they should have appellate jurisdiction in all other cases, with such
exceptions as congress might make, is no restriction; unless the words be deemed exclusive of original jurisdiction.
When an instrument organizing fundamentally a judicial system, divides it into one supreme, and so many inferior courts
as the legislature may ordain and establish; then enumerates its powers, and proceeds so far to distribute them, as to
define the jurisdiction; of the Supreme Court by declaring the cases in which it shall take original jurisdiction, and that in
others it shall take appellate jurisdiction, the plain import of the words seems to be, that in one class of cases its
jurisdiction is original, and not appellate; in the other it is appellate, and not original. If any other construction would
render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to the
obvious meaning. To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate
jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. It has been stated at the bar that the
appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus
should be used for that purpose, that will must be obeyed. This is true, yet the jurisdiction must be appellate, not
original. It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause
already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to
issue such a writ to an officer for the delivery of a paper, and, therefore, seems not to belong to appellate, but to
original jurisdiction. . . . The authority, therefore, given to the Supreme Court, by the act establishing the judicial courts
of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution; and
it becomes necessary to inquire whether a jurisdiction so conferred can be exercised. The question, whether an act,
repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but,
happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed
to have been long and well established, to decide it. That the people have an original right to establish, for their future
government, such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the
whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it
to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from
which they proceed is supreme, and can seldom act, they are designed to be permanent. This original and supreme will
organizes the government, and assigns to different departments their respective powers. It may either stop here, or
establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The powers of the legislature are defined and limited;
and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited,
and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those
intended to be restrained? . . . Between these alternatives there is no middle ground. The constitution is either a
superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other
acts, is alterable when the legislature shall please to alter it. . . . . Certainly all those who have framed written
constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the
theory of every such government must be, that an act of the legislature repugnant to the constitution, is void. This
theory is essentially attached to a written constitution, and is consequently to be considered by this court as one of the
fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject. . .
. . It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to
particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must
decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution
apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the
constitution; or conformably to the constitution, disregarding the law; the court must determine which of these
conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the
constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such
ordinary act, must govern the case to which they may both apply.

G.R. No. 134577 November 18, 1998

SEN. MIRIAM DEFENSOR SANTIAGO and SEN. FRANCISCO S. TATAD, petitioners,
vs.
SEN. TEOFISTO T. GUINGONA, JR. and SEN. MARCELO B. FERNAN, respondents.
PANGANIBAN, J.:
The principle of separation of powers ordains that each of the three great branches of government has exclusive
cognizance of and is supreme in matters falling within its own constitutionally allocated sphere. Constitutional respect and
a becoming regard for she sovereign acts, of a coequal branch prevents this Court from prying into the internal workings
of the Senate. Where no provision of the Constitution or the laws or even the Rules of the Senate is clearly shown to have
been violated, disregarded or overlooked, grave abuse of discretion cannot be imputed to Senate officials for acts done
within their competence and authority. This Court will be neither a tyrant nor a wimp; rather, it will remain steadfast and
judicious in upholding the rule and majesty of the law.
The Case
On July 31, 1998, Senators Miriam Defensor Santiago and Francisco S. Tatad instituted an original petition forquo
warranto under Rule 66, Section 5, Rules of Court, seeking the ouster of Senator Teofisto T. Guingona, Jr. as minority
leader of the Senate and the declaration of Senator Tatad as the rightful minority leader.
On August 4, 1998, the Court, upon receipt of the Petition, required the respondents and the solicitor general "to file
COMMENT thereon within a non-extendible period of fifteen (15) days from notice." On August 25, 1998, both
respondents and the solicitor general submitted their respective Comments. In compliance with a Resolution of the Court
dated September 1, 1998, petitioners filed their Consolidated Reply on September 23, 1998. Noting said pleading, this
Court gave due course to the petition and deemed the controversy submitted for decision, without need of memoranda, on
September 29, 1998.
In the regular course, the regional trial courts and this Court have concurrent jurisdiction 1 to hear and decide petitions
for quo warranto (as well as certiorari, prohibition and mandamus), and a basic deference to the hierarchy of courts impels
a filing of such petitions in the lower tribunals. 2 However, for special and important reasons or for exceptional and
compelling circumstances, as in the present case, this Court has allowed exceptions to this doctrine. 3 In fact, original
petitions for certiorari, prohibition, mandamus and quo warranto assailing acts of legislative officers like the Senate
President 4 and the Speaker of the House 5 have been recognized as exceptions to this rule.
The Facts
The Senate of the Philippines, with Sen. John Henry R. Osmea as presiding officer, convened on July 27, 1998 for the
first regular session of the eleventh Congress. At the time, in terms of party affiliation, the composition of the Senate was
as follows: 6
10 members Laban ng Masang Pilipino (LAMP)
7 members Lakas-National Union of Christian Democrats-United
Muslim Democrats of the Philippines (Lakas-NUCDUMDP)
1 member Liberal Party (LP)
1 member Aksyon Demokrasya
1 member People's Reform Party (PRP)
1 member Gabay Bayan
2 members Independent
23 total number of senators 7 (The last six members are all classified by petitioners as "independent".)
On the agenda for the day was the election of officers. Nominated by Sen. Blas F. Ople to the position of Senate
President was Sen. Marcelo B. Fernan. Sen. Francisco S. Tatad was also nominated to the same position by Sen. Miriam
Defenser Santiago. By a vote of 20 to 2, 8 Senator Fernan was declared the duly elected President of the Senate.
The following were likewise elected: Senator Ople as president pro tempore, and Sen. Franklin M. Drilon as majority
leader.
Senator Tatad thereafter manifested that, with the agreement of Senator Santiago, allegedly the only other member of the
minority, he was assuming the position of minority leader. He explained that those who had voted for Senator Fernan
comprised the "majority," while only those who had voted for him, the losing nominee, belonged to the "minority."
During the discussion on who should constitute the Senate "minority," Sen. Juan M. Flavier manifested that the senators
belonging to the Lakas-NUCD-UMDP Party numbering seven (7) and, thus, also a minority had chosen Senator
Guingona as the minority leader. No consensus on the matter was arrived at. The following session day, the debate on
the question continued, with Senators Santiago and Tatad delivering privilege speeches. On the third session day, the
Senate met in caucus, but still failed to resolve the issue.
On July 30, 1998, the majority leader informed the body chat he was in receipt of a letter signed by the seven LakasNUCD-UMDP senators, 9 stating that they had elected Senator Guingona as the minority leader. By virtue thereof, the
Senate President formally recognized Senator Guingona as the minority leader of the Senate.
The following day, Senators Santiago and Tatad filed before this Court the subject petition for quo warranto, alleging in
the main that Senator Guingona had been usurping, unlawfully holding and exercising the position of Senate minority
leader, a position that, according to them, rightfully belonged to Senator Tatad.
Issues
From the parties' pleadings, the Court formulated the following issues for resolution:
1. Does the Court have jurisdiction over the petition?
2. Was there an actual violation of the Constitution?
3. Was Respondent Guingona usurping, unlawfully holding and exercising the position of Senate minority
leader?
4. Did Respondent Fernan act with grave abuse of discretion in recognizing Respondent Guingona as the
minority leader?
The Court's Ruling
After a close perusal of the pleadings 10 and a careful deliberation on the arguments, pro and con, the Court finds that no
constitutional or legal infirmity or grave abuse of discretion attended the recognition of and the assumption into office by
Respondent Guingona as the Senate minority leader.
First Issue:

The Court's Jurisdiction

Petitioners principally invoke Avelino v. Cuenco 11 in arguing that this Court has jurisdiction to settle the issue of who is
the lawful Senate minority leader. They submit that the definitions of "majority" and "minority" involve an interpretation of
the Constitution, specifically Section 16 (1), Article VI thereof, stating that "[t]he Senate shall elect its President and the
House of Representatives its Speaker, by a majority vote of all its respective Members."
Respondents and the solicitor general, in their separate Comments, contend in common that the issue of who is the lawful
Senate minority leader is an internal matter pertaining exclusively to the domain of the legislature, over which the Court
cannot exercise jurisdiction without transgressing the principle of separation of powers. Allegedly, no constitutional issue
is involved, as the fundamental law does not provide for the office of a minority leader in the Senate. The legislature alone
has the full discretion to provide for such office and, in that event, to determine the procedure of selecting its occupant.
Respondents also maintain that Avelino cannot apply, because there exists no question involving an interpretation or
application of the Constitution, the laws or even the Rules of the Senate; neither are there "peculiar circumstances"
impelling the Court to assume jurisdiction over the petition. The solicitor general adds that there is not even any legislative
practice to support the petitioners' theory that a senator who votes for the winning Senate President is precluded from
becoming the minority leader.
To resolve the issue of jurisdiction, this Court carefully reviewed and deliberated on the various important cases involving
this very important and basic question, which it has ruled upon in the past.
The early case Avelino v. Cuenco cautiously tackled the scope of the Court's power of judicial review; that is, questions
involving an interpretation or application of a provision of the Constitution or the law, including the rules of either house of
Congress. Within this scope falls the jurisdiction of the Court over questions on the validity of legislative or executive acts
that are political in nature, whenever the tribunal "finds constitutionally imposed limits on powers or functions conferred
upon political bodies." 12
In the aforementioned case, the Court initially declined to resolve the question of who was the rightful Senate President,
since it was deemed a political controversy falling exclusively within the domain of the Senate. Upon a motion for
reconsideration, however, the Court ultimately assumed jurisdiction (1) "in the light of subsequent events which justify its
intervention;" and (2) because the resolution of the issue hinged on the interpretation of the constitutional provision on the
presence of a quorum to hold a session 13 and therein elect a Senate President.
Justice Feria elucidated in his Concurring Opinion: "[I] concur with the majority that this Court has jurisdiction over cases
like the present . . . so as to establish in this country the judicial supremacy, with the Supreme Court as the final arbiter, to
see that no one branch or agency of the government transcends the Constitution, not only in justiceable but political
questions as well." 14
Justice Perfecto, also concurring, said in part:
Indeed there is no denying that the situation, as obtaining in the upper chamber of Congress, is highly
explosive. It had echoed in the House of Representatives. It has already involved the President of the
Philippines. The situation has created a veritable national crisis, and it is apparent that solution cannot be
expected from any quarter other than this Supreme Court, upon which the hopes of the people for an
effective settlement are pinned. 15
. . . This case raises vital constitutional questions which no one can settle or decide if this Court should
refuse to decide them. 16
. . . The constitutional question of quorum should not be left unanswered. 17
In Taada v. Cueno, 18 this Court endeavored to define political question. And we said that "it refers to 'those questions
which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive branch of the government.' It is concerned with
issues dependent upon the wisdom, not [the] legality, of a particular measure." 19
The Court ruled that the validity of the selection of members of the Senate Electoral Tribunal by the senators was not a
political question. The choice of these members did not depend on the Senate's "full discretionary authority," but was
subject to mandatory constitutional limitations. 20 Thus, the Court held that not only was it clearly within its jurisdiction to
pass upon the validity of the selection proceedings, but it was also its duty to consider and determine the issue.
In another landmark case, Lansang v. Garcia, 21 Chief Justice Roberto Concepcion wrote that the Court "had authority to
and should inquire into the existence of the factual bases required by the Constitution for the suspension of the privilege
of the writ [of habeas corpus]." This ruling was made in spite of the previous pronouncements in Barcelon v.
Baker 22 andMontenegro v. Castaeda 23 that "the authority to decide whether the exigency has arisen requiring
suspension (of the privilege . . .) belongs to the President and his 'decision is final and conclusive' upon the courts and
upon all other persons." But the Chief Justice cautioned: "the function of the Court is merely to check not to supplant
the Executive, or to ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction, not to
exercise the power vested in him or to determine the wisdom of his act."
The eminent Chief Justice aptly explained later in Javellana v. Executive Secretary: 24
The reason why the issue under consideration and other issues of similar character are justiciable, not
political, is plain and simple. One of the principal bases of the non-justiciability of so-called political
questions is the principle of separation of powers characteristic of the presidential system of
government the functions of which are classified or divided, by reason of their nature, into three (3)
categories, namely, 1) those involving the making of laws, which are allocated to the legislative
department; 2) those concerning mainly with the enforcement of such laws and of judicial decisions
applying and/or interpreting the same, which belong to the executive department; and 3) those dealing
with the settlement of disputes, controversies or conflicts involving rights, duties or prerogatives that are
legally demandable and enforceable, which are apportioned to courts of justice. Within its own sphere
but only within such sphere each department is supreme and independent of the others, and each is
devoid of authority not only to encroach upon the powers or field of action assigned to any of the other
departments, but also to inquire into or pass upon the advisability or wisdom of the acts performed,
measures taken or decisions made by the other departments provided that such acts, measures or
decisions are within the area allocated thereto by the Constitution.
Accordingly, when the grant of power is qualified, conditional or subject to limitations, the issue of whether
or not the prescribed qualifications or conditions have been met, or the limitations respected is justiciable
or non-political, the crux of the problem being one of legality or validity of the contested act, not its
wisdom. Otherwise, said qualifications, conditions or limitations particularly those prescribed by the

Constitution would be set at naught. What is more, the judicial inquiry into such issue and the
settlement thereof are the main functions of the courts of justice under the presidential form of
government adopted in our 1935 Constitution, and the system of checks and balances, one of its basic
predicates. As a consequence, we have neither the authority nor the discretion to decline passing upon
said issue, but are under the ineluctable obligation made particularly more exacting and peremptory by
our oath, as members of the highest Court of the land, to support and defend the Constitution to settle
it. This explains why, in Miller v. Johnson [92 Ky. 589, 18 SW 522, 523], it was held that courts have a
"duty, rather than a power," to determine whether another branch of the government has "kept within
constitutional limits."
Unlike our previous constitutions, the 1987 Constitution is explicit in defining the scope of judicial power. The present
Constitution now fortifies the authority of the courts to determine in an appropriate action the validity of the acts of the
political departments. It speaks of judicial prerogative in terms of duty, viz.:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of the Government. 25
This express definition has resulted in clearer and more resolute pronouncements of the Court. Daza v.
Singson,26 Coseteng v. Mitra, Jr. 27 and Guingona Jr. v. Gonzales 28 similarly resolved issues assailing the acts of the
leaders of both houses of Congress in apportioning among political parties the seats to which each chamber was entitled
in the Commission on Appointments. The Court held that the issue was justiciable, "even if the question were political in
nature," since it involved "the legality, not the wisdom, of the manner of filling the Commission on Appointments as
prescribed by [Section 18, Article VI of] the Constitution."
The same question of jurisdiction was raised in Taada v. Angara, 29 wherein the petitioners sought to nullify the Senate's
concurrence in the ratification of the World Trade Organization (WTO) Agreement. The Court ruled: "Where an action of
the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the
duty of the judiciary to settle the dispute." The Court en banc unanimously stressed that in taking jurisdiction over petitions
questioning, an act of the political departments of government, it will not review the wisdom, merits or propriety of such
action, and will strike it down only on either of two grounds: (1) unconstitutionality or illegality and (2) grave abuse of
discretion.
Earlier in Co v. Electoral Tribunal of the House of Representatives 30 (HRET), the Court refused to reverse a decision of
the HRET, in the absence of a showing that said tribunal had committed grave abuse of discretion amounting to lack of
jurisdiction. The Court ruled that full authority had been conferred upon the electoral tribunals of the House of
Representatives and of the Senate as sole judges of all contests relating to the election, the returns, and the qualifications
of their respective members. Such jurisdiction is original and exclusive. 31 The Court may inquire into a decision or
resolution of said tribunals only if such "decision or resolution was rendered without or in excess of jurisdiction, or with
grave abuse of discretion" 32
Recently, the Court, in Arroyo v. De Venecia, 33 was asked to reexamine the enrolled bill doctrine and to look beyond the
certification of the Speaker of the House of Representatives that the bill, which was later enacted as Republic Act 8240,
was properly approved by the legislative body. Petitioners claimed that certain procedural rules of the House had been
breached in the passage of the bill. They averred further that a violation of the constitutionally mandated House rules was
a violation of the Constitution itself.
The Court, however, dismissed the petition, because the matter complained of concerned the internal procedures of the
House, with which the Court had no concern. It enucleated: 34
It would-be an unwarranted invasion of the prerogative of a coequal department for this Court either to set
aside a legislative action as void because the Court thinks the House has disregarded its own rules of
procedure, or to allow those defeated in the political arena to seek a rematch in the judicial forum when
petitioners can find their remedy in that department itself. The Court has not been invested with a roving
commission to inquire into complaints, real or imagined, of legislative skullduggery. It would be acting in
excess of its power and would itself be guilty of grave abuse of discretion were it to do so. . . . In the
absence of anything to the contrary, the Court must assume that Congress or any House thereof acted in
the good faith belief that its conduct was permitted by its rules, and deference rather than disrespect is
due the judgment of that body.
In the instant controversy, the petitioners one of whom is Senator Santiago, a well-known constitutionalist try to hew
closely to these jurisprudential parameters. They claim that Section 16 (1), Article VI of the constitution, has not been
observed in the selection of the Senate minority leader. They also invoke the Court's "expanded" judicial power "to
determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction" on the
part of respondents.
Dissenting in part, Mr. Justice Vicente V. Mendoza submits that the Court has no jurisdiction over the petition. Well-settled
is the doctrine, however, that jurisdiction over the subject matter of a case is determined by the allegations of the
complaint or petition, regardless of whether the plaintiff or petitioner is entitled to the relief asserted. 35 In light of the
aforesaid allegations of petitioners, it is clear that this Court has jurisdiction over the petition. It is well within the power
and jurisdiction of the Court to inquire whether indeed the Senate or its officials committed a violation of the Constitution
or gravely abused their discretion in the exercise of their functions and prerogatives.
Second Issue:
Violation of the Constitution
Having assumed jurisdiction over the petition, we now go to the next crucial question: In recognizing Respondent
Guingona as the Senate minority leader, did the Senate or its officials, particularly Senate President Fernan, violate the
Constitution or the laws?
Petitioners answer the above question in the affirmative. They contend that the constitutional provision requiring the
election of the Senate President "by majority vote of all members" carries with it a judicial duty to determine the concepts
of "majority" and "minority," as well as who may elect a minority leader. They argue that "majority" in the aforequoted
constitutional provision refers to that group of senators who (1) voted for the winning Senate President and (2) accepted
committee chairmanships. Accordingly, those who voted for the losing nominee and accepted no such chairmanships
comprise the minority, to whom the right to determine the minority leader belongs. As a result, petitioners assert,
Respondent Guingona cannot be the legitimate minority leader, since he voted for Respondent Fernan as Senate

President. Furthermore, the members of the Lakas-NUCD-UMDP cannot choose the minority leader, because they did not
belong to the minority, having voted for Fernan and accepted committee chairmanships.
We believe, however, that the interpretation proposed by petitioners finds no clear support from the Constitution, the laws,
the Rules of the Senate or even from practices of the Upper House.
The term "majority" has been judicially defined a number of times. When referring to a certain number out of a total or
aggregate, it simply "means the number greater than half or more than half of any total." 36 The plain and unambiguous
words of the subject constitutional clause simply mean that the Senate President must obtain the votes of more than one
half of all the senators. Not by any construal does it thereby delineate who comprise the "majority," much less the
"minority," in the said body. And there is no showing that the framers of our Constitution had in mind other than the usual
meanings of these terms.
In effect, while the Constitution mandates that the President of the Senate must be elected by a number constituting more
than one half of all the members thereof, it does not provide that the members who will not vote for him shall ipso
facto constitute the "minority," who could thereby elect the minority leader. Verily, no law or regulation states that the
defeated candidate shall automatically become the minority leader.
The Comment 37 of Respondent Guingona furnishes some relevant precedents, which were not contested in petitioners'
Reply. During the eighth Congress, which was the first to convene after the ratification of the 1987 Constitution, the
nomination of Sen. Jovito R Salonga as Senate President was seconded by a member of the minority, then Sen. Joseph
E. Estrada. 38 During the ninth regular session, when Sen. Edgardo J. Angara assumed the Senate presidency in 1993, a
consensus was reached to assign committee chairmanships to all senators, including those belonging to the
minority. 39This practice continued during the tenth Congress, where even the minority leader was allowed to chair a
committee. 40History would also show that the "majority" in either house of Congress has referred to the political party to
which the most number of lawmakers belonged, while the "minority" normally referred to a party with a lesser number of
members.
Let us go back to the definitions of the terms "majority" and "minority." Majority may also refer to "the group, party, or
faction with the larger number of votes," 41 not necessarily more than one half. This is sometimes referred to as plurality.
In contrast, minority is "a group, party, or faction with a smaller number of votes or adherents than the
majority." 42Between two unequal parts or numbers comprising a whole or totality, the greater number would obviously be
the majority while the lesser would be the minority. But where there are more than two unequal groupings, it is not as easy
to say which is the minority entitled to select the leader representing all the minorities. In a government with a multi-party
system such as in the Philippines (as pointed out by petitioners themselves), there could be several minority parties, one
of which has to be indentified by the Comelec as the "dominant minority party" for purposes of the general elections. In
the prevailing composition of the present Senate, members either belong to different political parties or are independent.
No constitutional or statutory provision prescribe which of the many minority groups or the independents or a combination
thereof has the right to select the minority leader.
While the Constitution is explicit on the manner of electing a Senate President and a House Speaker, it is, however, dead
silent on the manner of selecting the other officers in both chambers of Congress. All that the Charter says is that "[e]ach
House shall choose such other officers as it may deem necessary." 43 To our mind, themethod of choosing who will be
such other officers is merely a derivative of the exercise of the prerogative conferred by the aforequoted constitutional
provision. Therefore, such method must be prescribed by the Senate itself, not by this Court.
In this regard, the Constitution vests in each house of Congress the power "to determine the rules of its
proceedings." 44 Pursuant thereto, the Senate formulated and adopted a set of rules to govern its internal
affairs. 45Pertinent to the instant case are Rules I and II thereof, which provide:
Rule I
ELECTIVE OFFICERS
Sec 1. The Senate shall elect, in the manner hereinafter provided, a President, a President Pro Tempore,
a Secretary, and a Sergeant-at-Arms.
These officers shall take their oath of office before entering into the discharge of their duties.
Rule II
ELECTION OF OFFICER
Sec. 2. The officers of the Senate shall be elected by the majority vote of all its Members. Should there be
more than one candidate for the same office, a nominal vote shall be taken; otherwise, the elections shall
be by viva voce or by resolution.
Notably, the Rules of the Senate do not provide for the positions of majority and minority leaders. Neither is there an open
clause providing specifically for such offices and prescribing the manner of creating them or of choosing the holders
thereof, At any rate, such offices, by tradition and long practice, are actually extant. But, in the absence of constitutional or
statutory guidelines or specific rules, this Court is devoid of any basis upon which to determine the legality of the acts of
the Senate relative thereto. On grounds of respect for the basic concept of separation of powers, courts may not intervene
in the internal affairs of the legislature; it is not within the province of courts to direct Congress how to do its
work. 46 Paraphrasing the words of Justice Florentino P. Feliciano, this Court is of the opinion that where no specific,
operable norms and standards are shown to exist, then the legislature must be given a real and effective opportunity to
fashion and promulgate as well as to implement them, before the courts may intervene.47
Needless to state, legislative rules, unlike statutory laws, do not have the imprints of permanence and obligatoriness
during their effectivity. In fact, they "are subject to revocation, modification or waiver at the pleasure of the body adopting
them." 48 Being merely matters of procedure, their observance are of no concern to the courts, for said rules may be
waived or disregarded by the legislative body 49 at will, upon the concurrence of a majority.
In view of the foregoing, Congress verily has the power and prerogative to provide for such officers as it may deem. And it
is certainly within its own jurisdiction and discretion to prescribe the parameters for the exercise of this prerogative. This
Court has no authority to interfere and unilaterally intrude into that exclusive realm, without running afoul of constitutional
principles that it is bound to protect and uphold the very duty that justifies the Court's being. Constitutional respect and
a becoming regard for the sovereign acts of a coequal branch prevents this Court from prying into the internal workings of
the Senate. To repeat, this Court will be neither a tyrant nor a wimp; rather, it will remain steadfast and judicious in
upholding the rule and majesty of the law.
To accede, then, to the interpretation of petitioners would practically amount to judicial legislation, a clear breach of the
constitutional doctrine of separation of powers. If for this argument alone, the petition would easily fail.

While no provision of the Constitution or the laws or the rules and even the practice of the Senate was violated, and while
the judiciary is without power to decide matters over which full discretionary authority has been lodged in the legislative
department, this Court may still inquire whether an act of Congress or its officials has been made with grave abuse of
discretion. 50 This is the plain implication of Section 1, Article VIII of the Constitution, which expressly confers upon the
judiciary the power and the duty not only "to settle actual controversies involving rights which are legally demandable and
enforceable," but likewise "to determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government."
Explaining the above-quoted clause, former Chief Justice Concepcion, who was a member of the 1986 Constitutional
Commission, said in part: 51
. . . the powers of government are generally considered divided into three branches: the Legislative, the
Executive and the Judiciary. Each one is supreme within its own sphere and independent of the others.
Because of that supremacy[, the] power to determine whether a given law is valid or not is vested in
courts of justice.
Briefly stated, courts of justice determine the limits of power of the agencies and offices of the
government as well as those of its officers. In other words, the judiciary is the final arbiter on the question
whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of
jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction
or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this
nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade
the duty to settle matters of this nature, by claiming that such matters constitute a political question.
With this paradigm, we now examine the two other issues challenging the actions, first, of Respondent Guingona and,
second, of Respondent Fernan.
Third Issue:
Usurpation of Office
Usurpation generally refers to unauthorized arbitrary assumption and exercise of power 52 by one without color of title or
who is not entitled by law thereto. 53 A quo warranto proceeding is the proper legal remedy to determine the right or title to
the contested public office and to oust the holder from its enjoyment. 54 The action may be brought by the solicitor general
or a public prosecutor 55 or any person claiming to be entitled to the public office or position usurped or unlawfully held or
exercised by another. 56 The action shall be brought against the person who allegedly usurped, intruded into or is
unlawfully holding of exercising such office. 57
In order for a quo warranto proceeding to be successful, the person suing must show that he or she has a clearright to the
contested office or to use or exercise the functions of the office allegedly usurped or unlawfully held by the
respondent. 58 In this case, petitioners present no sufficient proof of a clear and indubitable franchise to the office of the
Senate minority leader.
As discussed earlier, the specific norms or standards that may be used in determining who may lawfully occupy the
disputed position has not been laid down by the Constitution, the statutes, or the Senate itself in which the power has
been vested. Absent any clear-cut guideline, in no way can it be said that illegality or irregularity tainted Respondent
Guingona's assumption and exercise of the powers of the office of Senate minority leader. Furthermore, no grave abuse
of discretion has been shown to characterize any of his specific acts as minority leader.
Fourth Issue:
Fernan's Recognition of Guingona
The all-embracing and plenary power and duty of the Court "to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government" is
restricted only by the definition and confines of the term "grave abuse of discretion."
By grave abuse of discretion is meant such capricious or whimsical exercise of judgment as is equivalent
to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of
positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law
as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility. 59
By the above standard, we hold that Respondent Fernan did not gravely abuse his discretion as Senate President in
recognizing Respondent Guingona as the minority leader. Let us recall that the latter belongs to one of the minority parties
in the Senate, the Lakas-NUCD-UMDP. By unanimous resolution of the members of this party that he be the minority
leader, he was recognized as such by the Senate President. Such formal recognition by Respondent Fernan came only
after at least two Senate sessions and a caucus, wherein both sides were liberally allowed to articulate their standpoints.
Under these circumstances, we believe that the Senate President cannot be accused of "capricious or whimsical exercise
of judgment" or of "an arbitrary and despotic manner by reason of passion or hostility." Where no provision of the
Constitution, the laws or even the rules of the Senate has been clearly shown to have been violated, disregarded or
overlooked, grave abuse of discretion cannot be imputed to Senate officials for acts done within their competence and
authority.
WHEREFORE, for the above reasons, the petition is hereby DISMISSED.
SO ORDERED.

G.R. No. 146710-15

March 2, 2001
JOSEPH E. ESTRADA, petitioner,
vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST CRIME
AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE VERA, DENNIS FUNA,
ROMEO CAPULONG and ERNESTO B. FRANCISCO, JR., respondent.
---------------------------------------G.R. No. 146738
March 2, 2001
JOSEPH E. ESTRADA, petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, respondent.
PUNO, J.:
On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada alleges that he is the
President on leave while respondent Gloria Macapagal-Arroyo claims she is the President. The warring personalities
are important enough but more transcendental are the constitutional issues embedded on the parties' dispute. While
the significant issues are many, the jugular issue involves the relationship between the ruler and the ruled in a
democracy, Philippine style.
First, we take a view of the panorama of events that precipitated the crisis in the office of the President.
In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while respondent Gloria
Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos voted for the petitioner believing he
would rescue them from life's adversity. Both petitioner and the respondent were to serve a six-year term
commencing on June 30, 1998.
From the beginning of his term, however, petitioner was plagued by a plethora of problems that slowly but surely
eroded his popularity. His sharp descent from power started on October 4, 2000. Ilocos Sur Governor, Luis "Chavit"
Singson, a longtime friend of the petitioner, went on air and accused the petitioner, his family and friends of
receiving millions of pesos from jueteng lords.1
The expos immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto Guingona, Jr.,
then the Senate Minority Leader, took the floor and delivered a fiery privilege speech entitled "I Accuse." He
accused the petitioner of receiving some P220 million in jueteng money from Governor Singson from November
1998 to August 2000. He also charged that the petitioner took from Governor Singson P70 million on excise tax on
cigarettes intended for Ilocos Sur. The privilege speech was referred by then Senate President Franklin Drilon, to
the Blue Ribbon Committee (then headed by Senator Aquilino Pimentel) and the Committee on Justice (then
headed by Senator Renato Cayetano) for joint investigation.2
The House of Representatives did no less. The House Committee on Public Order and Security, then headed by
Representative Roilo Golez, decided to investigate the expos of Governor Singson. On the other hand,
Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor spearheaded the move to impeach the
petitioner.
Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin issued a
pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking petitioner to step down
from the presidency as he had lost the moral authority to govern.3 Two days later or on October 13, the Catholic
Bishops Conference of the Philippines joined the cry for the resignation of the petitioner. 4 Four days later, or on
October 17, former President Corazon C. Aquino also demanded that the petitioner take the "supreme self-sacrifice"
of resignation.5 Former President Fidel Ramos also joined the chorus. Early on, or on October 12, respondent
Arroyo resigned as Secretary of the Department of Social Welfare and Services 6 and later asked for petitioner's
resignation.7 However, petitioner strenuously held on to his office and refused to resign.
The heat was on. On November 1, four (4) senior economic advisers, members of the Council of Senior Economic
Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime Minister Cesar Virata, former Senator
Vicente Paterno and Washington Sycip.8 On November 2, Secretary Mar Roxas II also resigned from the
Department of Trade and Industry.9 On November 3, Senate President Franklin Drilon, and House Speaker Manuel
Villar, together with some 47 representatives defected from the ruling coalition, Lapian ng Masang Pilipino.10
The month of November ended with a big bang. In a tumultuous session on November 13, House Speaker Villar
transmitted the Articles of Impeachment11 signed by 115 representatives, or more than 1/3 of all the members of the
House of Representatives to the Senate. This caused political convulsions in both houses of Congress. Senator
Drilon was replaced by Senator Pimentel as Senate President. Speaker Villar was unseated by Representative
Fuentebella.12 On November 20, the Senate formally opened the impeachment trial of the petitioner. Twenty-one
(21) senators took their oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.13
The political temperature rose despite the cold December. On December 7, the impeachment trial started. 14 The
battle royale was fought by some of the marquee names in the legal profession. Standing as prosecutors were then
House Minority Floor Leader Feliciano Belmonte and Representatives Joker Arroyo, Wigberto Taada, Sergio
Apostol, Raul Gonzales, Oscar Moreno, Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and
Antonio Nachura. They were assisted by a battery of private prosecutors led by now Secretary of Justice Hernando
Perez and now Solicitor General Simeon Marcelo. Serving as defense counsel were former Chief Justice Andres
Narvasa, former Solicitor General and Secretary of Justice Estelito P. Mendoza, former City Fiscal of Manila Jose
Flaminiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried Fortun and his brother, Atty. Raymund
Fortun. The day to day trial was covered by live TV and during its course enjoyed the highest viewing rating. Its high
and low points were the constant conversational piece of the chattering classes. The dramatic point of the
December hearings was the testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank. She
testified that she was one foot away from petitioner Estrada when he affixed the signature "Jose Velarde" on
documents involving a P500 million investment agreement with their bank on February 4, 2000.15
After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas. When it resumed on
January 2, 2001, more bombshells were exploded by the prosecution. On January 11, Atty. Edgardo Espiritu who

served as petitioner's Secretary of Finance took the witness stand. He alleged that the petitioner jointly owned BW
Resources Corporation with Mr. Dante Tan who was facing charges of insider trading.16 Then came the fateful day
of January 16, when by a vote of 11-1017 the senator-judges ruled against the opening of the second envelope which
allegedly contained evidence showing that petitioner held P3.3 billion in a secret bank account under the name
"Jose Velarde." The public and private prosecutors walked out in protest of the ruling. In disgust, Senator Pimentel
resigned as Senate President.18 The ruling made at 10:00 p.m. was met by a spontaneous outburst of anger that hit
the streets of the metropolis. By midnight, thousands had assembled at the EDSA Shrine and speeches full of
sulphur were delivered against the petitioner and the eleven (11) senators.
On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their collective
resignation. They also filed their Manifestation of Withdrawal of Appearance with the impeachment
tribunal.19Senator Raul Roco quickly moved for the indefinite postponement of the impeachment proceedings until
the House of Representatives shall have resolved the issue of resignation of the public prosecutors. Chief Justice
Davide granted the motion.20
January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer line of people
holding lighted candles formed a human chain from the Ninoy Aquino Monument on Ayala Avenue in Makati City to
the EDSA Shrine to symbolize the people's solidarity in demanding petitioner's resignation. Students and teachers
walked out of their classes in Metro Manila to show their concordance. Speakers in the continuing rallies at the
EDSA Shrine, all masters of the physics of persuasion, attracted more and more people.21
On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner informed
Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the Armed Forces of the
Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a snap election for President where he
would not be a candidate. It did not diffuse the growing crisis. At 3:00 p.m., Secretary of National Defense Orlando
Mercado and General Reyes, together with the chiefs of all the armed services went to the EDSA Shrine. 22 In the
presence of former Presidents Aquino and Ramos and hundreds of thousands of cheering demonstrators, General
Reyes declared that "on behalf of Your Armed Forces, the 130,000 strong members of the Armed Forces, we wish
to announce that we are withdrawing our support to this government."23 A little later, PNP Chief, Director General
Panfilo Lacson and the major service commanders gave a similar stunning announcement.24Some Cabinet
secretaries, undersecretaries, assistant secretaries, and bureau chiefs quickly resigned from their posts.25 Rallies for
the resignation of the petitioner exploded in various parts of the country. To stem the tide of rage, petitioner
announced he was ordering his lawyers to agree to the opening of the highly controversial second envelope.26 There
was no turning back the tide. The tide had become a tsunami.
January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the peaceful and
orderly transfer of power started at Malacaang'' Mabini Hall, Office of the Executive Secretary. Secretary Edgardo
Angara, Senior Deputy Executive Secretary Ramon Bagatsing, Political Adviser Angelito Banayo, Asst. Secretary
Boying Remulla, and Atty. Macel Fernandez, head of the Presidential Management Staff, negotiated for the
petitioner. Respondent Arroyo was represented by now Executive Secretary Renato de Villa, now Secretary of
Finance Alberto Romulo and now Secretary of Justice Hernando Perez.27 Outside the palace, there was a brief
encounter at Mendiola between pro and anti-Estrada protesters which resulted in stone-throwing and caused minor
injuries. The negotiations consumed all morning until the news broke out that Chief Justice Davide would administer
the oath to respondent Arroyo at high noon at the EDSA Shrine.
At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President of the
Philippines.28 At 2:30 p.m., petitioner and his family hurriedly left Malacaang Palace.29 He issued the following
press statement:30
"20 January 2001
STATEMENT FROM
PRESIDENT JOSEPH EJERCITO ESTRADA
At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the
Republic of the Philippines. While along with many other legal minds of our country, I have strong and
serious doubts about the legality and constitutionality of her proclamation as President, I do not wish to be a
factor that will prevent the restoration of unity and order in our civil society.
It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this country, for the
sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people with
gratitude for the opportunities given to me for service to our people. I will not shirk from any future
challenges that may come ahead in the same service of our country.
I call on all my supporters and followers to join me in to promotion of a constructive national spirit of
reconciliation and solidarity.
May the Almighty bless our country and beloved people.
MABUHAY!
(Sgd.) JOSEPH EJERCITO ESTRADA"
It also appears that on the same day, January 20, 2001, he signed the following letter:31
"Sir:
By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers and duties of my office. By operation of law and the
Constitution, the Vice-President shall be the Acting President.
(Sgd.) JOSEPH EJERCITO ESTRADA"
A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20. 23 Another copy was
transmitted to Senate President Pimentel on the same day although it was received only at 9:00 p.m.33
On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the powers the duties
of the Presidency. On the same day, this Court issued the following Resolution in Administrative Matter No. 01-1-05SC, to wit:

"A.M. No. 01-1-05-SC In re: Request of Vice President Gloria Macapagal-Arroyo to Take her Oath of
Office as President of the Republic of the Philippines before the Chief Justice Acting on the urgent
request of Vice President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the
Philippines, addressed to the Chief Justice and confirmed by a letter to the Court, dated January 20, 2001,
which request was treated as an administrative matter, the court Resolve unanimously to confirm the
authority given by the twelve (12) members of the Court then present to the Chief Justice on January 20,
2001 to administer the oath of office of Vice President Gloria Macapagal-Arroyo as President of the
Philippines, at noon of January 20, 2001.
This resolution is without prejudice to the disposition of any justiciable case that may be filed by a proper
party."
Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special envoys.34Recognition of
respondent Arroyo's government by foreign governments swiftly followed. On January 23, in a reception or vin d'
honneur at Malacaang, led by the Dean of the Diplomatic Corps, Papal Nuncio Antonio Franco, more than a
hundred foreign diplomats recognized the government of respondent Arroyo.35 US President George W. Bush gave
the respondent a telephone call from the White House conveying US recognition of her government.36
On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of
Representatives.37The House then passed Resolution No. 175 "expressing the full support of the House of
Representatives to the administration of Her Excellency, Gloria Macapagal-Arroyo, President of the Philippines."38 It
also approved Resolution No. 176 "expressing the support of the House of Representatives to the assumption into
office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, extending its
congratulations and expressing its support for her administration as a partner in the attainment of the nation's goals
under the Constitution."39
On January 26, the respondent signed into law the Solid Waste Management Act.40 A few days later, she also
signed into law the Political Advertising ban and Fair Election Practices Act.41
On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice President.42 The next day,
February 7, the Senate adopted Resolution No. 82 confirming the nomination of Senator Guingona, Jr. 43Senators
Miriam Defensor-Santiago, Juan Ponce Enrile, and John Osmena voted "yes" with reservations, citing as reason
therefor the pending challenge on the legitimacy of respondent Arroyo's presidency before the Supreme Court.
Senators Teresa Aquino-Oreta and Robert Barbers were absent.44 The House of Representatives also approved
Senator Guingona's nomination in Resolution No. 178.45 Senator Guingona, Jr. took his oath as Vice President two
(2) days later.46
On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court is functus officio and
has been terminated.47 Senator Miriam Defensor-Santiago stated "for the record" that she voted against the closure
of the impeachment court on the grounds that the Senate had failed to decide on the impeachment case and that
the resolution left open the question of whether Estrada was still qualified to run for another elective post.48
Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked up from 16%
on January 20, 2001 to 38% on January 26, 2001.49 In another survey conducted by the ABS-CBN/SWS from
February 2-7, 2001, results showed that 61% of the Filipinos nationwide accepted President Arroyo as replacement
of petitioner Estrada. The survey also revealed that President Arroyo is accepted by 60% in Metro Manila, by also
60% in the balance of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating increased to 52%. Her
presidency is accepted by majorities in all social classes: 58% in the ABC or middle-to-upper classes, 64% in the D
or mass class, and 54% among the E's or very poor class.50
After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several cases
previously filed against him in the Office of the Ombudsman were set in motion. These are: (1) OMB Case No. 0-001629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft and corruption; (2) OMB Case No. 000-1754 filed by the Volunteers Against Crime and Corruption on November 17, 2000 for plunder, forfeiture, graft
and corruption, bribery, perjury, serious misconduct, violation of the Code of Conduct for Government Employees,
etc; (3) OMB Case No. 0-00-1755 filed by the Graft Free Philippines Foundation, Inc. on November 24, 2000 for
plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756 filed by
Romeo Capulong, et al., on November 28, 2000 for malversation of public funds, illegal use of public funds and
property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera, et al., on November 28, 2000 for
bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD 46, and RA 7080; and (6) OMB Case No. 0-001758 filed by Ernesto B. Francisco, Jr. on December 4, 2000 for plunder, graft and corruption.
A special panel of investigators was forthwith created by the respondent Ombudsman to investigate the charges
against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P. Gervasio with the following as
members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel
Laureso. On January 22, the panel issued an Order directing the petitioner to file his counter-affidavit and the
affidavits of his witnesses as well as other supporting documents in answer to the aforementioned complaints
against him.
Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No. 146710-15, a
petition for prohibition with a prayer for a writ of preliminary injunction. It sought to enjoin the respondent
Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and
1758 or in any other criminal complaint that may be filed in his office, until after the term of petitioner as President is
over and only if legally warranted." Thru another counsel, petitioner, on February 6, filed GR No. 146738 for Quo
Warranto. He prayed for judgment "confirming petitioner to be the lawful and incumbent President of the Republic of
the Philippines temporarily unable to discharge the duties of his office, and declaring respondent to have taken her
oath as and to be holding the Office of the President, only in an acting capacity pursuant to the provisions of the
Constitution." Acting on GR Nos. 146710-15, the Court, on the same day, February 6, required the respondents "to
comment thereon within a non-extendible period expiring on 12 February 2001." On February 13, the Court ordered
the consolidation of GR Nos. 146710-15 and GR No. 146738 and the filing of the respondents' comments "on or
before 8:00 a.m. of February 15."

On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the hearing, Chief Justice
Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused themselves on motion of petitioner's counsel,
former Senator Rene A. Saguisag. They debunked the charge of counsel Saguisag that they have "compromised
themselves by indicating that they have thrown their weight on one side" but nonetheless inhibited themselves.
Thereafter, the parties were given the short period of five (5) days to file their memoranda and two (2) days to
submit their simultaneous replies.
In a resolution dated February 20, acting on the urgent motion for copies of resolution and press statement for "Gag
Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No. 146738, the Court resolved:
"(1) to inform the parties that the Court did not issue a resolution on January 20, 2001 declaring the office of
the President vacant and that neither did the Chief Justice issue a press statement justifying the alleged
resolution;
(2) to order the parties and especially their counsel who are officers of the Court under pain of being cited for
contempt to refrain from making any comment or discussing in public the merits of the cases at bar while
they are still pending decision by the Court, and
(3) to issue a 30-day status quo order effective immediately enjoining the respondent Ombudsman from
resolving or deciding the criminal cases pending investigation in his office against petitioner, Joseph E.
Estrada and subject of the cases at bar, it appearing from news reports that the respondent Ombudsman
may immediately resolve the cases against petitioner Joseph E. Estrada seven (7) days after the hearing
held on February 15, 2001, which action will make the cases at bar moot and academic."53
The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted for decision.
The bedrock issues for resolution of this Court are:
I
Whether the petitions present a justiciable controversy.
II
Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a President on
leave while respondent Arroyo is an Acting President.
III
Whether conviction in the impeachment proceedings is a condition precedent for the criminal prosecution of
petitioner Estrada. In the negative and on the assumption that petitioner is still President, whether he is
immune from criminal prosecution.
IV
Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial publicity.
We shall discuss the issues in seriatim.
I
Whether or not the cases
At bar involve a political question
Private respondents54 raise the threshold issue that the cases at bar pose a political question, and hence, are
beyond the jurisdiction of this Court to decide. They contend that shorn of its embroideries, the cases at bar assail
the "legitimacy of the Arroyo administration." They stress that respondent Arroyo ascended the presidency through
people power; that she has already taken her oath as the 14th President of the Republic; that she has exercised the
powers of the presidency and that she has been recognized by foreign governments. They submit that these
realities on ground constitute the political thicket, which the Court cannot enter.
We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift the shroud on
political question but its exact latitude still splits the best of legal minds. Developed by the courts in the 20th century,
the political question doctrine which rests on the principle of separation of powers and on prudential considerations,
continue to be refined in the mills of constitutional law.55 In the United States, the most authoritative guidelines to
determine whether a question is political were spelled out by Mr. Justice Brennan in the 1962 case or Baker v.
Carr,56 viz:
"x x x Prominent on the surface of any case held to involve a political question is found a textually
demonstrable constitutional commitment of the issue to a coordinate political department or a lack of
judicially discoverable and manageable standards for resolving it, or the impossibility of deciding without an
initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a political decision already made; or the
potentiality of embarrassment from multifarious pronouncements by various departments on question.
Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non
justiciability on the ground of a political question's presence. The doctrine of which we treat is one of 'political
questions', not of 'political cases'."
In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer delineation of
the inner and outer perimeters of a political question.57 Our leading case is Tanada v. Cuenco,58 where this Court,
through former Chief Justice Roberto Concepcion, held that political questions refer "to those questions which,
under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to whichfull
discretionary authority has been delegated to the legislative or executive branch of the government. It is
concerned with issues dependent upon the wisdom, not legality of a particular measure." To a great degree, the
1987 Constitution has narrowed the reach of the political question doctrine when it expanded the power of judicial
review of this court not only to settle actual controversies involving rights which are legally demandable and
enforceable but also to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of government. 59 Heretofore, the
judiciary has focused on the "thou shalt not's" of the Constitution directed against the exercise of its
jurisdiction.60 With the new provision, however, courts are given a greater prerogative to determine what it can do to
prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or

instrumentality of government. Clearly, the new provision did not just grant the Court power of doing nothing.
In sync and symmetry with this intent are other provisions of the 1987 Constitution trimming the so called political
thicket. Prominent of these provisions is section 18 of Article VII which empowers this Court in limpid language to "x
x x review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation
of martial law or the suspension of the privilege of the writ (of habeas corpus) or the extension thereof x x x."
Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A. Lozano v. President
Corazon C. Aquino, et al.61 and related cases62 to support their thesis that since the cases at bar involve
the legitimacy of the government of respondent Arroyo, ergo, they present a political question. A more cerebral
reading of the cited cases will show that they are inapplicable. In the cited cases, we held that the government of
former President Aquino was the result of a successful revolution by the sovereign people, albeit a peaceful one.
No less than the Freedom Constitution63 declared that the Aquino government was installed through a direct
exercise of the power of the Filipino people "in defiance of the provisions of the 1973 Constitution, as
amended." In is familiar learning that the legitimacy of a government sired by a successful revolution by people
power is beyond judicial scrutiny for that government automatically orbits out of the constitutional loop. In checkered
contrast, the government of respondent Arroyo is not revolutionary in character. The oath that she took at the
EDSA Shrine is the oath under the 1987 Constitution.64 In her oath, she categorically swore to preserve and
defend the 1987 Constitution. Indeed, she has stressed that she is discharging the powers of the presidency
under the authority of the 1987 Constitution.
In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA I involves the
exercise of the people power of revolution which overthrew the whole government. EDSA II is an exercise
ofpeople power of freedom of speech and freedom of assembly to petition the government for redress of
grievances which only affected the office of the President. EDSA I is extra constitutional and the legitimacy of
the new government that resulted from it cannot be the subject of judicial review, but EDSA II is intra
constitutional and the resignation of the sitting President that it caused and the succession of the Vice President as
President are subject to judicial review. EDSA I presented a political question; EDSA II involves legal
questions. A brief discourse on freedom of speech and of the freedom of assembly to petition the government for
redress of grievance which are the cutting edge of EDSA People Power II is not inappropriate.
Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was one of the
reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the clarion call for the
recognition of freedom of the press of the Filipinos and included it as among "the reforms sine quibus
non."65 TheMalolos Constitution, which is the work of the revolutionary Congress in 1898, provided in its Bill of
Rights that Filipinos shall not be deprived (1) of the right to freely express his ideas or opinions, orally or in writing,
through the use of the press or other similar means; (2) of the right of association for purposes of human life and
which are not contrary to public means; and (3) of the right to send petitions to the authorities, individually or
collectively." These fundamental rights were preserved when the United States acquired jurisdiction over the
Philippines. In the Instruction to the Second Philippine Commission of April 7, 1900 issued by President McKinley,
it is specifically provided "that no law shall be passed abridging the freedom of speech or of the press or of the rights
of the people to peaceably assemble and petition the Government for redress of grievances." The guaranty was
carried over in the Philippine Bill, the Act of Congress of July 1, 1902 and the Jones Law, the Act of Congress of
August 29, 1966.66
Thence on, the guaranty was set in stone in our 1935 Constitution,67 and the 197368 Constitution. These rights are
now safely ensconced in section 4, Article III of the 1987 Constitution, viz:
"Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right
of the people peaceably to assemble and petition the government for redress of grievances."
The indispensability of the people's freedom of speech and of assembly to democracy is now self-evident. The
reasons are well put by Emerson: first, freedom of expression is essential as a means of assuring individual
fulfillment; second, it is an essential process for advancing knowledge and discovering truth; third, it is essential to
provide for participation in decision-making by all members of society; and fourth, it is a method of achieving a more
adaptable and hence, a more stable community of maintaining the precarious balance between healthy cleavage
and necessary consensus."69 In this sense, freedom of speech and of assembly provides a framework in
which the "conflict necessary to the progress of a society can take place without destroying the
society."70 In Hague v. Committee for Industrial Organization,71 this function of free speech and assembly was
echoed in the amicus curiae filed by the Bill of Rights Committee of the American Bar Association which
emphasized that "the basis of the right of assembly is the substitution of the expression of opinion and belief by talk
rather than force; and this means talk for all and by all."72 In the relatively recent case of Subayco v.
Sandiganbayan,73 this Court similar stressed that " it should be clear even to those with intellectual deficits that
when the sovereign people assemble to petition for redress of grievances, all should listen.For in a democracy, it
is the people who count; those who are deaf to their grievances are ciphers."
Needless to state, the cases at bar pose legal and not political questions. The principal issues for resolution require
the proper interpretation of certain provisions in the 1987 Constitution, notably section 1 of Article II, 74 and section
875 of Article VII, and the allocation of governmental powers under section 1176 of Article VII. The issues likewise call
for a ruling on the scope of presidential immunity from suit. They also involve the correct calibration of the right of
petitioner against prejudicial publicity. As early as the 1803 case of Marbury v. Madison,77 the doctrine has been
laid down that "it is emphatically the province and duty of the judicial department to say what the law is . . ."
Thus, respondent's in vocation of the doctrine of political question is but a foray in the dark.
II
Whether
or
not
the
petitioner
Resigned as President
We now slide to the second issue. None of the parties considered this issue as posing a political question. Indeed, it
involves a legal question whose factual ingredient is determinable from the records of the case and by resort to
1wphi1.nt

judicial notice. Petitioner denies he resigned as President or that he suffers from a permanent disability. Hence, he
submits that the office of the President was not vacant when respondent Arroyo took her oath as President.
The issue brings under the microscope the meaning of section 8, Article VII of the Constitution which provides:
"Sec. 8. In case of death, permanent disability, removal from office or resignation of the President, the Vice
President shall become the President to serve the unexpired term. In case of death, permanent disability,
removal from office, or resignation of both the President and Vice President, the President of the Senate or,
in case of his inability, the Speaker of the House of Representatives, shall then act as President until the
President or Vice President shall have been elected and qualified.
x x x."
The issue then is whether the petitioner resigned as President or should be considered resigned as of January 20,
2001 when respondent took her oath as the 14th President of the Public. Resignation is not a high level legal
abstraction. It is a factual question and its elements are beyond quibble: there must be an intent to resign and
the intent must be coupled by acts of relinquishment.78 The validity of a resignation is not government by any
formal requirement as to form. It can be oral. It can be written. It can be express. It can be implied. As long as the
resignation is clear, it must be given legal effect.
In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before he evacuated
Malacaang Palace in the afternoon of January 20, 2001 after the oath-taking of respondent Arroyo. Consequently,
whether or not petitioner resigned has to be determined from his act and omissions before, during and after January
20, 2001 or by the totality of prior, contemporaneous and posterior facts and circumstantial evidence
bearing a material relevance on the issue.
Using this totality test, we hold that petitioner resigned as President.
To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow the succession
of events after the expos of Governor Singson. The Senate Blue Ribbon Committee investigated. The more
detailed revelations of petitioner's alleged misgovernance in the Blue Ribbon investigation spiked the hate against
him. The Articles of Impeachment filed in the House of Representatives which initially was given a near cipher
chance of succeeding snowballed. In express speed, it gained the signatures of 115 representatives or more than
1/3 of the House of Representatives. Soon, petitioner's powerful political allies began deserting him. Respondent
Arroyo quit as Secretary of Social Welfare. Senate President Drilon and former Speaker Villar defected with 47
representatives in tow. Then, his respected senior economic advisers resigned together with his Secretary of Trade
and Industry.
As the political isolation of the petitioner worsened, the people's call for his resignation intensified. The call reached
a new crescendo when the eleven (11) members of the impeachment tribunal refused to open the second envelope.
It sent the people to paroxysms of outrage. Before the night of January 16 was over, the EDSA Shrine was
swarming with people crying for redress of their grievance. Their number grew exponentially. Rallies and
demonstration quickly spread to the countryside like a brush fire.
As events approached January 20, we can have an authoritative window on the state of mind of the petitioner. The
window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of Executive Secretary Angara
serialized in the Philippine Daily Inquirer.79 The Angara Diary reveals that in the morning of January 19,
petitioner's loyal advisers were worried about the swelling of the crowd at EDSA, hence, they decided to create an
ad hoc committee to handle it. Their worry would worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his
small office at the presidential residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this
is serious. Angelo has defected.)"80 An hour later or at 2:30 p.m., the petitioner decided to call for a snap presidential
election and stressed he would not be a candidate. The proposal for a snap election for president in May
where he would not be a candidate is an indicium that petitioner had intended to give up the presidency
even at that time. At 3:00 p.m., General Reyes joined the sea of EDSA demonstrators demanding the resignation
of the petitioner and dramatically announced the AFP's withdrawal of support from the petitioner and their pledge of
support to respondent Arroyo. The seismic shift of support left petitioner weak as a president. According to
Secretary Angara, he asked Senator Pimentel to advise petitioner to consider the option of "dignified exit or
resignation."81 Petitioner did not disagree but listened intently.82 The sky was falling fast on the petitioner. At
9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a graceful and dignified exit. He gave
the proposal a sweetener by saying that petitioner would be allowed to go abroad with enough funds to support him
and his family.83 Significantly, the petitioner expressed no objection to the suggestion for a graceful and
dignified exit but said he would never leave the country.84 At 10:00 p.m., petitioner revealed to Secretary
Angara, "Ed, Angie (Reyes) guaranteed that I would have five days to a week in the palace."85 This is proof that
petitioner had reconciled himself to the reality that he had to resign. His mind was already concerned with the
five-day grace period he could stay in the palace. It was a matter of time.

The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary Angara and
requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure a) peaceful and orderly
transfer of power."86 There was no defiance to the request. Secretary Angara readily agreed. Again, we note that at
this stage, the problem was already about a peaceful and orderly transfer of power. The resignation of the
petitioner was implied.
The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m. of January 20,
that fateful Saturday. The negotiation was limited to three (3) points: (1) the transition period of five days after the
petitioner's resignation; (2) the guarantee of the safety of the petitioner and his family, and (3) the agreement to
open the second envelope to vindicate the name of the petitioner.87 Again, we note that the resignation of
petitioner was not a disputed point. The petitioner cannot feign ignorance of this fact.According to Secretary
Angara, at 2:30 a.m., he briefed the petitioner on the three points and the following entry in the Angara Diary
shows the reaction of the petitioner, viz:
"x x x

I explain what happened during the first round of negotiations. The President immediately stresses that he
just wants the five-day period promised by Reyes, as well as to open the second envelope to clear his
name.
If the envelope is opened, on Monday, he says, he will leave by Monday.
The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod na ako sa red
tape, bureaucracy, intriga. (I am very tired. I don't want any more of this it's too painful. I'm tired of
the red tape, the bureaucracy, the intrigue.)
I just want to clear my name, then I will go."88
Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear when he said "x
x x Ayoko na masyado nang masakit." "Ayoko na" are words of resignation.
The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the following happened:
"Opposition's deal
7:30 a.m. Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene Corona. For this
round, I am accompanied by Dondon Bagatsing and Macel.
Rene pulls out a document titled "Negotiating Points." It reads:
'1. The President shall sign a resignation document within the day, 20 January 2001, that will be effective on
Wednesday, 24 January 2001, on which day the Vice President will assume the Presidency of the Republic
of the Philippines.
2. Beginning to day, 20 January 2001, the transition process for the assumption of the new administration
shall commence, and persons designated by the Vice President to various positions and offices of the
government shall start their orientation activities in coordination with the incumbent officials concerned.
3. The Armed Forces of the Philippines and the Philippine National Police shall function under the Vice
President as national military and police authority effective immediately.
4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the security of the
President and his family as approved by the national military and police authority (Vice President).
5. It is to be noted that the Senate will open the second envelope in connection with the alleged savings
account of the President in the Equitable PCI Bank in accordance with the rules of the Senate, pursuant to
the request to the Senate President.
Our deal
We bring out, too, our discussion draft which reads:
The undersigned parties, for and in behalf of their respective principals, agree and undertake as follows:
'1. A transition will occur and take place on Wednesday, 24 January 2001, at which time President Joseph
Ejercito Estrada will turn over the presidency to Vice President Gloria Macapagal-Arroyo.
'2. In return, President Estrada and his families are guaranteed security and safety of their person and
property throughout their natural lifetimes. Likewise, President Estrada and his families are guarantee
freedom from persecution or retaliation from government and the private sector throughout their natural
lifetimes.
This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through the Chief of
Staff, as approved by the national military and police authorities Vice President (Macapagal).
'3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment court will authorize the
opening of the second envelope in the impeachment trial as proof that the subject savings account does not
belong to President Estrada.
'4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the 'Transition
Period"), the incoming Cabinet members shall receive an appropriate briefing from the outgoing Cabinet
officials as part of the orientation program.
During the Transition Period, the AFP and the Philippine National Police (PNP) shall function Vice President
(Macapagal) as national military and police authorities.
Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all the necessary
signatures as affixed to this agreement and insure faithful implementation and observance thereof.
Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor provided for in
"Annex A" heretofore attached to this agreement."89
The second round of negotiation cements the reading that the petitioner has resigned. It will be noted that during
this second round of negotiation, the resignation of the petitioner was again treated as a given fact. The only
unsettled points at that time were the measures to be undertaken by the parties during and after the transition
period.
According to Secretary Angara, the draft agreement, which was premised on the resignation of the petitioner was
further refined. It was then, signed by their side and he was ready to fax it to General Reyes and Senator Pimentel
to await the signature of the United Opposition. However, the signing by the party of the respondent Arroyo was
aborted by her oath-taking. The Angara diary narrates the fateful events, viz;90
"xxx
11:00 a.m. Between General Reyes and myself, there is a firm agreement on the five points to effect a
peaceful transition. I can hear the general clearing all these points with a group he is with. I hear voices in
the background.
Agreement.
The agreement starts: 1. The President shall resign today, 20 January 2001, which resignation shall be
effective on 24 January 2001, on which day the Vice President will assume the presidency of the Republic of
the Philippines.
xxx
The rest of the agreement follows:

2. The transition process for the assumption of the new administration shall commence on 20 January 2001,
wherein persons designated by the Vice President to various government positions shall start orientation
activities with incumbent officials.
'3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety and security of
the President and his families throughout their natural lifetimes as approved by the national military and
police authority Vice President.
'4. The AFP and the Philippine National Police (PNP) shall function under the Vice President as national
military and police authorities.
'5. Both parties request the impeachment court to open the second envelope in the impeachment trial, the
contents of which shall be offered as proof that the subject savings account does not belong to the
President.
The Vice President shall issue a public statement in the form and tenor provided for in Annex "B" heretofore
attached to this agreement.
11:20 a.m. I am all set to fax General Reyes and Nene Pimentel our agreement, signed by our side and
awaiting the signature of the United opposition.
And then it happens. General Reyes calls me to say that the Supreme Court has decided that Gloria
Macapagal-Arroyo is President and will be sworn in at 12 noon.
'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What about the
agreement)?' I asked.
Reyes answered: 'Wala na, sir (it's over, sir).'
I ask him: Di yung transition period, moot and academic na?'
And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).'
Contrary to subsequent reports, I do not react and say that there was a double cross.
But I immediately instruct Macel to delete the first provision on resignation since this matter is already moot
and academic. Within moments, Macel erases the first provision and faxes the documents, which have been
signed by myself, Dondon and Macel, to Nene Pimentel and General Reyes.
I direct Demaree Ravel to rush the original document to General Reyes for the signatures of the other side,
as it is important that the provisions on security, at least, should be respected.
I then advise the President that the Supreme Court has ruled that Chief Justice Davide will administer the
oath to Gloria at 12 noon.
The President is too stunned for words:
Final meal
12 noon Gloria takes her oath as president of the Republic of the Philippines.
12:20 p.m. The PSG distributes firearms to some people inside the compound.
The president is having his final meal at the presidential Residence with the few friends and Cabinet
members who have gathered.
By this time, demonstrators have already broken down the first line of defense at Mendiola. Only the PSG is
there to protect the Palace, since the police and military have already withdrawn their support for the
President.
1 p.m. The President's personal staff is rushing to pack as many of the Estrada family's personal
possessions as they can.
During lunch, Ronnie Puno mentions that the president needs to release a final statement before leaving
Malacaang.
The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath
as President of the Republic of the Philippines. While along with many other legal minds of our country, I
have strong and serious doubts about the legality and constitutionality of her proclamation as President, I do
not wish to be a factor that will prevent the restoration of unity and order in our civil society.
It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this country, for the
sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people with
gratitude for the opportunities given to me for service to our people. I will not shirk from any future
challenges that may come ahead in the same service of our country.
I call on all my supporters and followers to join me in the promotion of a constructive national spirit of
reconciliation and solidarity.
May the Almighty bless our country and our beloved people.
MABUHAY!"'
It was curtain time for the petitioner.
In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his leaving
Malacaang. In the press release containing his final statement, (1) he acknowledged the oath-taking of the
respondent as President of the Republic albeit with reservation about its legality; (2) he emphasized he was leaving
the Palace, the seat of the presidency, for the sake of peace and in order to begin the healing process of our nation.
He did not say he was leaving the Palace due to any kind inability and that he was going to re-assume the
presidency as soon as the disability disappears: (3) he expressed his gratitude to the people for the opportunity to
serve them. Without doubt, he was referring to the past opportunity given him to serve the people as President (4)
he assured that he will not shirk from any future challenge that may come ahead in the same service of our country.
Petitioner's reference is to a future challenge after occupying the office of the president which he has given up; and
(5) he called on his supporters to join him in the promotion of a constructive national spirit of reconciliation and
solidarity. Certainly, the national spirit of reconciliation and solidarity could not be attained if he did not give up the
presidency. The press release was petitioner's valedictory, his final act of farewell. His presidency is now in the part
tense.
It is, however, urged that the petitioner did not resign but only took a temporary leave dated January 20, 2001 of the
petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited. Again, we refer to the said letter, viz:

"Sir.
By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers and duties of my office. By operation of law and the
Constitution, the Vice President shall be the Acting president.
(Sgd.) Joseph Ejercito Estrada"
To say the least, the above letter is wrapped in mystery.91 The pleadings filed by the petitioner in the cases at bar
did not discuss, may even intimate, the circumstances that led to its preparation. Neither did the counsel of the
petitioner reveal to the Court these circumstances during the oral argument. It strikes the Court as strange that the
letter, despite its legal value, was never referred to by the petitioner during the week-long crisis. To be sure, there
was not the slightest hint of its existence when he issued his final press release. It was all too easy for him to tell the
Filipino people in his press release that he was temporarily unable to govern and that he was leaving the reins of
government to respondent Arroyo for the time bearing. Under any circumstance, however, the mysterious letter
cannot negate the resignation of the petitioner. If it was prepared before the press release of the petitioner clearly as
a later act. If, however, it was prepared after the press released, still, it commands scant legal significance.
Petitioner's resignation from the presidency cannot be the subject of a changing caprice nor of a whimsical will
especially if the resignation is the result of his reputation by the people. There is another reason why this Court
cannot given any legal significance to petitioner's letter and this shall be discussed in issue number III of this
Decision.
After petitioner contended that as a matter of fact he did not resign, he also argues that he could not resign as a
matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-graft and Corrupt Practices Act,
which allegedly prohibits his resignation, viz:
"Sec. 12. No public officer shall be allowed to resign or retire pending an investigation, criminals or
administrative, or pending a prosecution against him, for any offense under this Act or under the provisions
of the Revised Penal Code on bribery."
A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner. RA No. 3019
originated form Senate Bill No. 293. The original draft of the bill, when it was submitted to the Senate, did not
contain a provision similar to section 12 of the law as it now stands. However, in his sponsorship speech, Senator
Arturo Tolentino, the author of the bill, "reserved to propose during the period of amendments the inclusion of a
provision to the effect that no public official who is under prosecution for any act of graft or corruption, or is under
administrative investigation, shall be allowed to voluntarily resign or retire."92 During the period of amendments, the
following provision was inserted as section 15:
"Sec. 15. Termination of office No public official shall be allowed to resign or retire pending an
investigation, criminal or administrative, or pending a prosecution against him, for any offense under the Act
or under the provisions of the Revised Penal Code on bribery.
The separation or cessation of a public official form office shall not be a bar to his prosecution under this Act
for an offense committed during his incumbency."93
The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second paragraph of the
provision and insisted that the President's immunity should extend after his tenure.
Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter passed. Section 15 above
became section 13 under the new bill, but the deliberations on this particular provision mainly focused on the
immunity of the President, which was one of the reasons for the veto of the original bill. There was hardly any
debate on the prohibition against the resignation or retirement of a public official with pending criminal and
administrative cases against him. Be that as it may, the intent of the law ought to be obvious. It is to prevent the act
of resignation or retirement from being used by a public official as a protective shield to stop the investigation of a
pending criminal or administrative case against him and to prevent his prosecution under the Anti-Graft Law or
prosecution for bribery under the Revised Penal Code. To be sure, no person can be compelled to render service
for that would be a violation of his constitutional right.94 A public official has the right not to serve if he really wants to
retire or resign. Nevertheless, if at the time he resigns or retires, a public official is facing administrative or criminal
investigation or prosecution, such resignation or retirement will not cause the dismissal of the criminal or
administrative proceedings against him. He cannot use his resignation or retirement to avoid prosecution.
There is another reason why petitioner's contention should be rejected. In the cases at bar, the records show that
when petitioner resigned on January 20, 2001, the cases filed against him before the Ombudsman were OMB Case
Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-1758. While these cases have been filed, the
respondent Ombudsman refrained from conducting the preliminary investigation of the petitioner for the reason that
as the sitting President then, petitioner was immune from suit. Technically, the said cases cannot be considered as
pending for the Ombudsman lacked jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be
invoked by the petitioner for it contemplates of cases whose investigation or prosecution do not suffer from any
insuperable legal obstacle like the immunity from suit of a sitting President.
Petitioner contends that the impeachment proceeding is an administrative investigation that, under section 12 of RA
3019, bars him from resigning. We hold otherwise. The exact nature of an impeachment proceeding is debatable.
But even assuming arguendo that it is an administrative proceeding, it can not be considered pending at the time
petitioner resigned because the process already broke down when a majority of the senator-judges voted against
the opening of the second envelope, the public and private prosecutors walked out, the public prosecutors filed their
Manifestation of Withdrawal of Appearance, and the proceedings were postponed indefinitely. There was, in effect,
no impeachment case pending against petitioner when he resigned.
III
Whether or not the petitioner Is only temporarily unable to Act as President.
We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform the powers and
duties of the presidency, and hence is a President on leave. As aforestated, the inability claim is contained in the
January 20, 2001 letter of petitioner sent on the same day to Senate President Pimentel and Speaker Fuentebella.

Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability of the petitioner
to discharge the powers and duties of the presidency. His significant submittal is that "Congress has the ultimate
authority under the Constitution to determine whether the President is incapable of performing his functions in the
manner provided for in section 11 of article VII."95 This contention is the centerpiece of petitioner's stance that he
is a President on leave and respondent Arroyo is only an Acting President.
An examination of section 11, Article VII is in order. It provides:
"SEC. 11. Whenever the President transmits to the President of the Senate and the Speaker of the House of
Representatives his written declaration that he is unable to discharge the powers and duties of his office,
and until he transmits to them a written declaration to the contrary, such powers and duties shall be
discharged by the Vice-President as Acting President.
Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to the
Speaker of the House of Representatives their written declaration that the President is unable to discharge
the powers and duties of his office, the Vice-President shall immediately assume the powers and duties of
the office as Acting President.
Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of
Representatives his written declaration that no inability exists, he shall reassume the powers and duties of
his office. Meanwhile, should a majority of all the Members of the Cabinet transmit within five days to the
President of the Senate and to the Speaker of the House of Representatives their written declaration that the
President is unable to discharge the powers and duties of his office, the Congress shall decide the issue.
For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours, in accordance
with its rules and without need of call.
If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within twelve
days after it is required to assemble, determines by a two-thirds vote of both Houses, voting separately, that
the President is unable to discharge the powers and duties of his office, the Vice-President shall act as
President; otherwise, the President shall continue exercising the powers and duties of his office."
That is the law. Now, the operative facts:
1. Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate President and
Speaker of the House;
2. Unaware of the letter, respondent Arroyo took her oath of office as President on January 20, 2001 at
about 12:30 p.m.;
3. Despite receipt of the letter, the House of Representatives passed on January 24, 2001 House
Resolution No. 175;96
On the same date, the House of the Representatives passed House Resolution No. 17697 which states:
"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES TO THE
ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS CONGRATULATIONS AND EXPRESSING ITS
SUPPORT FOR HER ADMINISTRATION AS A PARTNER IN THE ATTAINMENT OF THE NATION'S
GOALS UNDER THE CONSTITUTION
WHEREAS, as a consequence of the people's loss of confidence on the ability of former President Joseph
Ejercito Estrada to effectively govern, the Armed Forces of the Philippines, the Philippine National Police
and majority of his cabinet had withdrawn support from him;
WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President Gloria
Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001 before Chief Justice
Hilario G. Davide, Jr.;
WHEREAS, immediately thereafter, members of the international community had extended their recognition
to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of the Philippines;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of national healing
and reconciliation with justice for the purpose of national unity and development;
WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is divided, thus by
reason of the constitutional duty of the House of Representatives as an institution and that of the individual
members thereof of fealty to the supreme will of the people, the House of Representatives must ensure to
the people a stable, continuing government and therefore must remove all obstacles to the attainment
thereof;
WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to unify the nation, to
eliminate fractious tension, to heal social and political wounds, and to be an instrument of national
reconciliation and solidarity as it is a direct representative of the various segments of the whole nation;
WHEREAS, without surrending its independence, it is vital for the attainment of all the foregoing, for the
House of Representatives to extend its support and collaboration to the administration of Her Excellency,
President Gloria Macapagal-Arroyo, and to be a constructive partner in nation-building, the national interest
demanding no less: Now, therefore, be it
Resolved by the House of Representatives, To express its support to the assumption into office by Vice
President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, to extend its
congratulations and to express its support for her administration as a partner in the attainment of the
Nation's goals under the Constitution.
Adopted,
(Sgd.)
FELICIANO
BELMONTE
JR.
Speaker
This Resolution was adopted by the House of Representatives on January 24, 2001.
(Sgd.)
ROBERTO
P.
NAZARENO
Secretary General"
On February 7, 2001, the House of the Representatives passed House Resolution No. 17898 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S NOMINATION OF

SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES
WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to the Presidency
of Vice President Gloria Macapagal-Arroyo;
WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event of such vacancy
shall nominate a Vice President from among the members of the Senate and the House of Representatives
who shall assume office upon confirmation by a majority vote of all members of both Houses voting
separately;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader
Teofisto T. Guingona Jr., to the position of Vice President of the Republic of the Philippines;
WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity, competence and
courage; who has served the Filipino people with dedicated responsibility and patriotism;
WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship, having
served the government in various capacities, among others, as Delegate to the Constitutional Convention,
Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice, Senator of the Philippines
qualities which merit his nomination to the position of Vice President of the Republic: Now, therefore, be it
Resolved as it is hereby resolved by the House of Representatives, That the House of Representatives
confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice President of the Republic of the
Philippines.
Adopted,
(Sgd.)
FELICIANO
BELMONTE
JR.
Speaker
This Resolution was adopted by the House of Representatives on February 7, 2001.
(Sgd.)
ROBERTO
P.
NAZARENO
Secretary General"
(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of the Senate
signed the following:
"RESOLUTION
WHEREAS, the recent transition in government offers the nation an opportunity for meaningful change and
challenge;
WHEREAS, to attain desired changes and overcome awesome challenges the nation needs unity of
purpose and resolve cohesive resolute (sic) will;
WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in unity despite
diversities in perspectives;
WHEREFORE, we recognize and express support to the new government of President Gloria MacapagalArroyo and resolve to discharge and overcome the nation's challenges." 99
On February 7, the Senate also passed Senate Resolution No. 82100 which states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S NOMINATION OF SEM.
TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES
WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the Presidency of
Vice President Gloria Macapagal-Arroyo;
WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of such vacancy
shall nominate a Vice President from among the members of the Senate and the House of Representatives
who shall assume office upon confirmation by a majority vote of all members of both Houses voting
separately;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader
Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of the Philippines;
WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity, competence and
courage; who has served the Filipino people with dedicated responsibility and patriotism;
WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship, having served
the government in various capacities, among others, as Delegate to the Constitutional Convention,
Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice, Senator of the land which qualities merit his nomination to the position of Vice President of the Republic: Now, therefore, be it
Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto T. Guingona, Jr.
as Vice President of the Republic of the Philippines.
Adopted,
(Sgd.)
AQUILINO
Q.
PIMENTEL
JR.
President of the Senate
This Resolution was adopted by the Senate on February 7, 2001.
(Sgd.)
LUTGARDO
B.
BARBO
Secretary of the Senate"
On the same date, February 7, the Senate likewise passed Senate Resolution No. 83101 which states:
"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS OFFICIO
Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court is functus
officioand has been terminated.
Resolved, further, That the Journals of the Impeachment Court on Monday, January 15, Tuesday, January
16 and Wednesday, January 17, 2001 be considered approved.
Resolved, further, That the records of the Impeachment Court including the "second envelope" be
transferred to the Archives of the Senate for proper safekeeping and preservation in accordance with the

Rules of the Senate. Disposition and retrieval thereof shall be made only upon written approval of the
Senate president.
Resolved, finally. That all parties concerned be furnished copies of this Resolution.
Adopted,
(Sgd.)
AQUILINO
Q.
PIMENTEL,
JR.
President of the Senate
This Resolution was adopted by the Senate on February 7, 2001.
(Sgd.)
LUTGARDO
B.
BARBO
Secretary of the Senate"
(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of vacancy in the Senate
and calling on the COMELEC to fill up such vacancy through election to be held simultaneously with the regular
election on May 14, 2001 and the Senatorial candidate garnering the thirteenth (13th) highest number of votes shall
serve only for the unexpired term of Senator Teofisto T. Guingona, Jr.'
(6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo as President.
(7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from any sector of
government, and without any support from the Armed Forces of the Philippines and the Philippine National Police,
the petitioner continues to claim that his inability to govern is only momentary.
What leaps to the eye from these irrefutable facts is that both houses of Congress have recognized
respondent Arroyo as the President. Implicitly clear in that recognition is the premise that the inability of
petitioner Estrada. Is no longer temporary. Congress has clearly rejected petitioner's claim of inability.
The question is whether this Court has jurisdiction to review the claim of temporary inability of petitioner
Estrada and thereafter revise the decision of both Houses of Congress recognizing respondent Arroyo as
president of the Philippines. Following Taada v. Cuenco,102 we hold that this Court cannot exercise its judicial
power or this is an issue "in regard to which full discretionary authority has been delegated to the Legislative xxx
branch of the government." Or to use the language in Baker vs. Carr,103 there is a "textually demonstrable or a lack
of judicially discoverable and manageable standards for resolving it." Clearly, the Court cannot pass upon
petitioner's claim of inability to discharge the power and duties of the presidency. The question is political in
nature and addressed solely to Congress by constitutional fiat. It is a political issue, which cannot be decided
by this Court without transgressing the principle of separation of powers.
In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully claim that he is a
President on leave on the ground that he is merely unable to govern temporarily. That claim has been laid to
rest by Congress and the decision that respondent Arroyo is the de jure, president made by a co-equal
branch of government cannot be reviewed by this Court.
IV
Whether or not the petitioner enjoys immunity from suit.
Assuming he enjoys immunity, the extent of the immunity
Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent Ombudsman
should be prohibited because he has not been convicted in the impeachment proceedings against him; andsecond,
he enjoys immunity from all kinds of suit, whether criminal or civil.
Before resolving petitioner's contentions, a revisit of our legal history executive immunity will be most enlightening.
The doctrine of executive immunity in this jurisdiction emerged as a case law. In the 1910 case of Forbes, etc. vs.
Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a Chinese citizen, sued petitioner W. Cameron Forbes,
Governor-General of the Philippine Islands. J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the
Secret Service of the City of Manila, respectively, for damages for allegedly conspiring to deport him to China. In
granting a writ of prohibition, this Court, speaking thru Mr. Justice Johnson, held:
" The principle of nonliability, as herein enunciated, does not mean that the judiciary has no authority to
touch the acts of the Governor-General; that he may, under cover of his office, do what he will, unimpeded
and unrestrained. Such a construction would mean that tyranny, under the guise of the execution of the law,
could walk defiantly abroad, destroying rights of person and of property, wholly free from interference of
courts or legislatures. This does not mean, either that a person injured by the executive authority by an act
unjustifiable under the law has n remedy, but must submit in silence. On the contrary, it means, simply, that
the governors-general, like the judges if the courts and the members of the Legislature, may not be
personally mulcted in civil damages for the consequences of an act executed in the performance of his
official duties. The judiciary has full power to, and will, when the mater is properly presented to it and the
occasion justly warrants it, declare an act of the Governor-General illegal and void and place as nearly as
possible in status quo any person who has been deprived his liberty or his property by such act. This
remedy is assured to every person, however humble or of whatever country, when his personal or property
rights have been invaded, even by the highest authority of the state. The thing which the judiciary can not do
is mulct the Governor-General personally in damages which result from the performance of his official duty,
any more than it can a member of the Philippine Commission of the Philippine Assembly. Public policy
forbids it.
Neither does this principle of nonliability mean that the chief executive may not be personally sued at all in
relation to acts which he claims to perform as such official. On the contrary, it clearly appears from the
discussion heretofore had, particularly that portion which touched the liability of judges and drew an analogy
between such liability and that of the Governor-General, that the latter is liable when he acts in a case so
plainly outside of his power and authority that he can not be said to have exercised discretion in determining
whether or not he had the right to act. What is held here is that he will be protected from personal liability for
damages not only when he acts within his authority, but also when he is without authority, provided he
actually used discretion and judgement, that is, the judicial faculty, in determining whether he had authority
to act or not. In other words, in determining the question of his authority. If he decide wrongly, he is still
protected provided the question of his authority was one over which two men, reasonably qualified for that

position, might honestly differ; but he s not protected if the lack of authority to act is so plain that two such
men could not honestly differ over its determination. In such case, be acts, not as Governor-General but as
a private individual, and as such must answer for the consequences of his act."
Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity from
suit, viz"xxx. Action upon important matters of state delayed; the time and substance of the chief executive spent in
wrangling litigation; disrespect engendered for the person of one of the highest officials of the state and for the office
he occupies; a tendency to unrest and disorder resulting in a way, in distrust as to the integrity of government
itself."105
Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity. Then came the
tumult of the martial law years under the late President Ferdinand E. Marcos and the 1973 Constitution was born. In
1981, it was amended and one of the amendments involved executive immunity. Section 17, Article VII stated:
"The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for
official acts done by him or by others pursuant to his specific orders during his tenure.
The immunities herein provided shall apply to the incumbent President referred to in Article XVII of this
Constitution.
In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and All The King's Men:
The Law of Privilege As a Defense To Actions For Damages,"106 petitioner's learned counsel, former Dean of the UP
College of Law, Atty. Pacificao Agabin, brightened the modifications effected by this constitutional amendment on
the existing law on executive privilege. To quote his disquisition:
"In the Philippines, though, we sought to do the Americans one better by enlarging and fortifying the
absolute immunity concept. First, we extended it to shield the President not only form civil claims but also
from criminal cases and other claims. Second, we enlarged its scope so that it would cover even acts of the
President outside the scope of official duties. And third, we broadened its coverage so as to include not only
the President but also other persons, be they government officials or private individuals, who acted upon
orders of the President. It can be said that at that point most of us were suffering from AIDS (or absolute
immunity defense syndrome)."
The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of executive immunity in
the 1973 Constitution. The move was led by them Member of Parliament, now Secretary of Finance, Alberto
Romulo, who argued that the after incumbency immunity granted to President Marcos violated the principle that a
public office is a public trust. He denounced the immunity as a return to the anachronism "the king can do no
wrong."107 The effort failed.
The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People Power
revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the executive immunity
provision of the 1973 Constitution. The following explanation was given by delegate J. Bernas vis:108
"Mr. Suarez. Thank you.
The last question is with reference to the Committee's omitting in the draft proposal the immunity provision
for the President. I agree with Commissioner Nolledo that the Committee did very well in striking out second
sentence, at the very least, of the original provision on immunity from suit under the 1973 Constitution. But
would the Committee members not agree to a restoration of at least the first sentence that the President
shall be immune from suit during his tenure, considering that if we do not provide him that kind of an
immunity, he might be spending all his time facing litigation's, as the President-in-exile in Hawaii is now
facing litigation's almost daily?
Fr. Bernas. The reason for the omission is that we consider it understood in present jurisprudence that
during his tenure he is immune from suit.
Mr. Suarez. So there is no need to express it here.
Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973 Constitution
was to make that explicit and to add other things.
Mr. Suarez. On that understanding, I will not press for any more query, Madam President.
I think the Commissioner for the clarifications."
We shall now rule on the contentions of petitioner in the light of this history. We reject his argument that he cannot
be prosecuted for the reason that he must first be convicted in the impeachment proceedings. The impeachment
trial of petitioner Estrada was aborted by the walkout of the prosecutors and by the events that led to his loss of the
presidency. Indeed, on February 7, 2001, the Senate passed Senate Resolution No. 83 "Recognizing that the
Impeachment Court is Functus Officio."109 Since, the Impeachment Court is now functus officio, it is untenable for
petitioner to demand that he should first be impeached and then convicted before he can be prosecuted. The plea if
granted, would put a perpetual bar against his prosecution. Such a submission has nothing to commend itself for it
will place him in a better situation than a non-sitting President who has not been subjected to impeachment
proceedings and yet can be the object of a criminal prosecution. To be sure, the debates in the Constitutional
Commission make it clear that when impeachment proceedings have become moot due to the resignation of the
President, the proper criminal and civil cases may already be filed against him, viz:110
"xxx
Mr. Aquino. On another point, if an impeachment proceeding has been filed against the President, for
example, and the President resigns before judgement of conviction has been rendered by the impeachment
court or by the body, how does it affect the impeachment proceeding? Will it be necessarily dropped?
Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his resignation would
render the case moot and academic. However, as the provision says, the criminal and civil aspects of it may
continue in the ordinary courts."
This is in accord with our ruling In Re: Saturnino Bermudez111 that 'incumbent Presidents are immune from suit or
from being brought to court during the period of their incumbency and tenure" but not beyond. Considering the
peculiar circumstance that the impeachment process against the petitioner has been aborted and thereafter he lost
the presidency, petitioner Estrada cannot demand as a condition sine qua non to his criminal prosecution before the

Ombudsman that he be convicted in the impeachment proceedings. His reliance on the case of Lecaroz vs.
Sandiganbayan112 and related cases113 are inapropos for they have a different factual milieu.
We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The cases filed
against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and corruption. By no
stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the
alleged mantle of immunity of a non-sitting president. Petitioner cannot cite any decision of this Court licensing the
President to commit criminal acts and wrapping him with post-tenure immunity from liability. It will be anomalous to
hold that immunity is an inoculation from liability for unlawful acts and conditions. The rule is that unlawful acts of
public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same
footing as any trespasser.114
Indeed, critical reading of current literature on executive immunity will reveal a judicial disinclination to expand the
privilege especially when it impedes the search for truth or impairs the vindication of a right. In the 1974 case of US
v. Nixon,115 US President Richard Nixon, a sitting President, was subpoenaed to produce certain recordings and
documents relating to his conversations with aids and advisers. Seven advisers of President Nixon's associates
were facing charges of conspiracy to obstruct Justice and other offenses, which were committed in a burglary of the
Democratic National Headquarters in Washington's Watergate Hotel during the 972 presidential campaign.
President Nixon himself was named an unindicted co-conspirator. President Nixon moved to quash the subpoena
on the ground, among others, that the President was not subject to judicial process and that he should first be
impeached and removed from office before he could be made amenable to judicial proceedings. The claim was
rejected by the US Supreme Court. It concluded that "when the ground for asserting privilege as to subpoenaed
materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail
over the fundamental demands of due process of law in the fair administration of criminal justice." In the 1982 case
of Nixon v. Fitzgerald,116 the US Supreme Court further held that the immunity of the president from civil damages
covers only "official acts." Recently, the US Supreme Court had the occasion to reiterate this doctrine in the case of
Clinton v. Jones117 where it held that the US President's immunity from suits for money damages arising out of their
official acts is inapplicable to unofficial conduct.
There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in our
jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public trust. 118 It declared as
a state policy that "the State shall maintain honesty and integrity in the public service and take positive and effective
measures against graft and corruptio."119 it ordained that "public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency act with patriotism
and justice, and lead modest lives."120 It set the rule that 'the right of the State to recover properties unlawfully
acquired by public officials or employees, from them or from their nominees or transferees, shall not be barred by
prescription, latches or estoppel."121 It maintained the Sandiganbayan as an anti-graft court.122 It created the office of
the Ombudsman and endowed it with enormous powers, among which is to "investigate on its own, or on complaint
by any person, any act or omission of any public official, employee, office or agency, when such act or omission
appears to be illegal, unjust improper or inefficient."123 The Office of the Ombudsman was also given fiscal
autonomy.124 These constitutional policies will be devalued if we sustain petitioner's claim that a non-sitting president
enjoys immunity from suit for criminal acts committed during his incumbency.
V
Whether or not the prosecution of petitioner
Estrada should be enjoined due to prejudicial publicity
Petitioner also contends that the respondent Ombudsman should be stopped from conducting the investigation of
the cases filed against him due to the barrage of prejudicial publicity on his guilt. He submits that the respondent
Ombudsman has developed bias and is all set file the criminal cases violation of his right to due process.
There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of unrestrained
publicity during the investigation and trial of high profile cases.125 The British approach the problem with the
presumption that publicity will prejudice a jury. Thus, English courts readily stay and stop criminal trials when the
right of an accused to fair trial suffers a threat.126 The American approach is different. US courts assume a skeptical
approach about the potential effect of pervasive publicity on the right of an accused to a fair trial. They have
developed different strains of tests to resolve this issue, i.e., substantial; probability of irreparable harm, strong
likelihood, clear and present danger, etc.
This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or annul
convictions in high profile criminal cases.127 In People vs. Teehankee, Jr.,128 later reiterated in the case of Larranaga
vs. court of Appeals, et al.,129 we laid down the doctrine that:
"We cannot sustain appellant's claim that he was denied the right to impartial trial due to prejudicial publicity.
It is true that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile
and high stake criminal trials. Then and now, we rule that the right of an accused to a fair trial is not
incompatible to a free press. To be sure, responsible reporting enhances accused's right to a fair trial for, as
well pointed out, a responsible press has always been regarded as the criminal field xxx. The press does not
simply publish information about trials but guards against the miscarriage of justice by subjecting the police,
prosecutors, and judicial processes to extensive public scrutiny and criticism.
Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial
of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so
permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to seal the minds
of members of the bench from pre-trial and other off-court publicity of sensational criminal cases. The state
of the art of our communication system brings news as they happen straight to our breakfast tables and right
to our bedrooms. These news form part of our everyday menu of the facts and fictions of life. For another,
our idea of a fair and impartial judge is not that of a hermit who is out of touch with the world. We have not
installed the jury system whose members are overly protected from publicity lest they lose there impartially.
xxx xxx xxx. Our judges are learned in the law and trained to disregard off-court evidence and on-camera

performances of parties to litigation. Their mere exposure to publications and publicity stunts does not per se
fatally infect their impartiality.
At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage of
publicity that characterized the investigation and trial of the case. In Martelino, et al. v. Alejandro, et al., we
rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we ruled that to
warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been unduly
influenced, not simply that they might be, by the barrage of publicity. In the case at a bar, the records do not
show that the trial judge developed actual bias against appellants as a consequence of the extensive media
coverage of the pre-trial and trial of his case. The totality of circumstances of the case does not prove that
the trial judge acquired a fixed opinion as a result of prejudicial publicity, which is incapable of change even
by evidence presented during the trial. Appellant has the burden to prove this actual bias and he has not
discharged the burden.'
We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon, etc. 130 and its
companion cases, viz:
"Again petitioners raise the effect of prejudicial publicity on their right to due process while undergoing
preliminary investigation. We find no procedural impediment to its early invocation considering the
substantial risk to their liberty while undergoing a preliminary investigation.
xxx
The democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its
excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure,
few cases can match the high volume and high velocity of publicity that attended the preliminary
investigation of the case at bar. Our daily diet of facts and fiction about the case continues unabated even
today. Commentators still bombard the public with views not too many of which are sober and sublime.
Indeed, even the principal actors in the case the NBI, the respondents, their lawyers and their
sympathizers have participated in this media blitz. The possibility of media abuses and their threat to a fair
trial notwithstanding, criminal trials cannot be completely closed to the press and public. In the seminal case
of Richmond Newspapers, Inc. v. Virginia, it was
xxx
a. The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates
conclusively that at the time this Nation's organic laws were adopted, criminal trials both here and in
England had long been presumptively open, thus giving assurance that the proceedings were
conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or
decisions based on secret bias or partiality. In addition, the significant community therapeutic value
of public trials was recognized when a shocking crime occurs a community reaction of outrage and
public protest often follows, and thereafter the open processes of justice serve an important
prophylactic purpose, providing an outlet for community concern, hostility and emotion. To work
effectively, it is important that society's criminal process satisfy the appearance of justice,' Offutt v.
United States, 348 US 11, 14, 99 L ED 11, 75 S Ct 11, which can best be provided by allowing
people to observe such process. From this unbroken, uncontradicted history, supported by reasons
as valid today as in centuries past, it must be concluded that a presumption of openness inheres in
the very nature of a criminal trial under this Nation's system of justice, Cf., e,g., Levine v. United
States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
b. The freedoms of speech. Press and assembly, expressly guaranteed by the First Amendment, share
a common core purpose of assuring freedom of communication on matters relating to the functioning
of government. In guaranteeing freedom such as those of speech and press, the First Amendment
can be read as protecting the right of everyone to attend trials so as give meaning to those explicit
guarantees; the First Amendment right to receive information and ideas means, in the context of
trials, that the guarantees of speech and press, standing alone, prohibit government from summarily
closing courtroom doors which had long been open to the public at the time the First Amendment
was adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an
independent right but also as a catalyst to augment the free exercise of the other First Amendment
rights with which the draftsmen deliberately linked it. A trial courtroom is a public place where the
people generally and representatives of the media have a right to be present, and where their
presence historically has been thought to enhance the integrity and quality of what takes place.
c. Even though the Constitution contains no provision which be its terms guarantees to the public the
right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been
recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal trial
is implicit in the guarantees of the First Amendment: without the freedom to attend such trials, which
people have exercised for centuries, important aspects of freedom of speech and of the press be
eviscerated.
Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can
deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., we held
that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have
been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find
nothing in the records that will prove that the tone and content of the publicity that attended the investigation
of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on
the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically
unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State
Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to
consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-

record evidence except evidence properly adduced by the parties. The length of time the investigation was
conducted despite its summary nature and the generosity with which they accommodated the discovery
motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the
disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of
prejudicial publicity." (emphasis supplied)
Applying the above ruling, we hold that there is not enough evidence to warrant this Court to enjoin the
preliminary investigation of the petitioner by the respondent Ombudsman. Petitioner needs to offer more than
hostile headlines to discharge his burden of proof.131 He needs to show more weighty social science evidence to
successfully prove the impaired capacity of a judge to render a bias-free decision. Well to note, the cases against
the petitioner are still undergoing preliminary investigation by a special panel of prosecutors in the office of the
respondent Ombudsman. No allegation whatsoever has been made by the petitioner that the minds of the members
of this special panel have already been infected by bias because of the pervasive prejudicial publicity against him.
Indeed, the special panel has yet to come out with its findings and the Court cannot second guess whether its
recommendation will be unfavorable to the petitioner.
The records show that petitioner has instead charged respondent Ombudsman himself with bias. To quote
petitioner's submission, the respondent Ombudsman "has been influenced by the barrage of slanted news reports,
and he has buckled to the threats and pressures directed at him by the mobs."132 News reports have also been
quoted to establish that the respondent Ombudsman has already prejudged the cases of the petitioner133 and it is
postulated that the prosecutors investigating the petitioner will be influenced by this bias of their superior.
Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the news reports
referred to by the petitioner cannot be the subject of judicial notice by this Court especially in light of the denials of
the respondent Ombudsman as to his alleged prejudice and the presumption of good faith and regularity in the
performance of official duty to which he is entitled. Nor can we adopt the theory of derivative prejudice of
petitioner, i.e., that the prejudice of respondent Ombudsman flows to his subordinates. In truth, our Revised
Rules of Criminal Procedure, give investigation prosecutors the independence to make their own findings and
recommendations albeit they are reviewable by their superiors.134 They can be reversed but they can not be
compelled cases which they believe deserve dismissal. In other words, investigating prosecutors should not be
treated like unthinking slot machines. Moreover, if the respondent Ombudsman resolves to file the cases against the
petitioner and the latter believes that the findings of probable cause against him is the result of bias, he still has the
remedy of assailing it before the proper court.
VI.
Epilogue
A word of caution to the "hooting throng." The cases against the petitioner will now acquire a different dimension
and then move to a new stage - - - the Office of the Ombudsman. Predictably, the call from the majority for instant
justice will hit a higher decibel while the gnashing of teeth of the minority will be more threatening. It is the sacred
duty of the respondent Ombudsman to balance the right of the State to prosecute the guilty and the right of an
accused to a fair investigation and trial which has been categorized as the "most fundamental of all freedoms."135To
be sure, the duty of a prosecutor is more to do justice and less to prosecute. His is the obligation to insure that the
preliminary investigation of the petitioner shall have a circus-free atmosphere. He has to provide the restraint
against what Lord Bryce calls "the impatient vehemence of the majority." Rights in a democracy are not decided by
the mob whose judgment is dictated by rage and not by reason. Nor are rights necessarily resolved by the power of
number for in a democracy, the dogmatism of the majority is not and should never be the definition of the rule of law.
If democracy has proved to be the best form of government, it is because it has respected the right of the minority to
convince the majority that it is wrong. Tolerance of multiformity of thoughts, however offensive they may be, is the
key to man's progress from the cave to civilization. Let us not throw away that key just to pander to some people's
prejudice.
IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria Macapagal-Arroyo
as the de jure 14th President of the Republic are DISMISSED.
SO ORDERED.

G.R. No. 115044 January 27, 1995

HON. ALFREDO S. LIM, in his capacity as Mayor of Manila, and the City of Manila, petitioners,
vs.
HON. FELIPE G. PACQUING, as Judge, branch 40, Regional Trial Court of Manila and ASSOCIATED
CORPORATION, respondents.
G.R. No. 117263 January 27, 1995
TEOFISTO GUINGONA, JR. and DOMINADOR R. CEPEDA, petitioners,
vs.
HON. VETINO REYES and ASSOCIATED DEVELOPMENT CORPORATION, respondents.
PADILLA, J.:
These two (2) cases which are inter-related actually involve simple issues. if these issues have apparently become
complicated, it is not by reason of their nature because of the events and dramatis personae involved.
The petition in G.R. No. 115044 was dismissed by the First Division of this Court on 01 September 1994 based on a
finding that there was "no abuse of discretion, much less lack of or excess of jurisdiction, on the part of respondent
judge [Pacquing]", in issuing the questioned orders. Judge Pacquing had earlier issued in Civil Case No. 88-45660,
RTC of Manila, Branch 40, the following orders which were assailed by the Mayor of the City of Manila, Hon. Alfredo
S. Lim, in said G.R. No. 115044:
a. order dated 28 March 1994 directing Manila mayor Alfredo S. Lim to issue the permit/license to
operate the jai-alai in favor of Associated Development Corporation (ADC).
b. order dated 11 April 1994 directing mayor Lim to explain why he should not be cited for contempt
for non-compliance with the order dated 28 March 1994.
c. order dated 20 April 1994 reiterating the previous order directing Mayor Lim to immediately issue
the permit/license to Associated Development Corporation (ADC).
The order dated 28 march 1994 was in turn issued upon motion by ADC for execution of a final judgment rendered
on 9 September 1988 which ordered the Manila Mayor to immediately issue to ADC the permit/licenseto operate the
jai-alai in Manila, under Manila Ordinance No. 7065.
On 13 September 1994, petitioner Guingona (as executive secretary) issued a directive to then chairman of the
Games and Amusements Board (GAB) Francisco R. Sumulong, jr. to hold in abeyance the grant of authority, or if
any had been issued, to withdraw such grant of authority, to Associated Development Corporation to operate the jaialai in the City of Manila, until the following legal questions are properly resolved:
1. Whether P.D. 771 which revoked all existing Jai-Alai franchisers issued by local governments as
of 20 August 1975 is unconstitutional.
2. Assuming that the City of Manila had the power on 7 September 1971 to issue a Jai-Alai franchise
to Associated Development Corporation, whether the franchise granted is valied considering that the
franchise has no duration, and appears to be granted in perpetuity.
3. Whether the City of Manila had the power to issue a Jai-Alai franchise to Associated Development
Corporation on 7 September 1971 in view of executive Order No. 392 dated 1 January 1951 which
transferred from local governments to the Games and Amusements Board the power to regulate JaiAlai. 1
On 15 September 1994, respondent Associated Development Corporation (ADC) filed a petition for
prohibition,mandamus, injunction and damages with prayer for temporary restraining order and/or writ of preliminary
injunction in the Regional Trial Court of Manila against petitioner Guingona and then GAB chairman Sumulong,
docketed as Civil Case No. 94-71656, seeking to prevent GAB from withdrawing the provisional authority that had
earlier been granted to ADC. On the same day, the RTC of Manila, Branch 4, through presiding Judge Vetino
Reyes, issued a temporary restraining order enjoining the GAB from withdrawing ADC's provisional authority. This
temporary restraining order was converted into a writ of preliminary injunction upon ADC's posting of a bond in the
amount of P2,000,000.00. 2
Subsequently, also in G.R. No. 115044, the Republic of the Philippines, through the Games and Amusements
Board, filed a "Motion for Intervention; for Leave to File a Motion for reconsideration in Intervention; and to Refer the
case to the Court En Banc" and later a "Motion for Leave to File Supplemental Motion for Reconsideration-inIntervention and to Admit Attached Supplemental Motion for Reconsideration-in-Intervention".
In an En Banc Resolution dated 20 September 1994, this Court referred G.R. No. 115044 to the Court En Bancand
required the respondents therein to comment on the aforementioned motions.
Meanwhile, Judge Reyes on 19 October 1994 issued another order, this time, granting ADC a writ of
preliminarymandatory injunction against Guingona and GAB to compel them to issue in favor of ADC the authority to
operate jai-alai.
Guingona, as executive secretary, and Dominador Cepeda, Jr. as the new GAB chairman, then filed the petition in
G.R. No. 117263 assailing the abovementioned orders of respondent Judge Vetino Reyes.
On 25 October 1994, in G.R. No. 117263, this Court granted petitioner's motion for leave to file supplemental
petition and to admit attached supplemental petition with urgent prayer for restraining order. The Court further
required respondents to file their comment on the petition and supplemental petition with urgent prayer for
restraining order. The Court likewise set the case and all incidents thereof for hearing on 10 November 1994.
At the hearing on 10 November 1994, the issues to be resolved were formulated by the Court as follows:
1. whether or not intervention by the Republic of the Philippines at this stage of the proceedings is
proper;
2. assuming such intervention is proper, whether or not the Associated Development Corporation
has a valid and subsisting franchise to maintain and operate the jai-alai;
3. whether or not there was grave abuse of discretion committed by respondent Judge Reyes in
issuing the aforementioned temporary restraining order (later writ of preliminary injunction); and

4. whether or not there was grave abuse of discretion committed by respondent Judge Reyes in
issuing the aforementioned writ of preliminary mandatory injunction.
On the issue of the propriety of the intervention by the Republic of the Philippines, a question was raised during the
hearing on 10 November 1994 as to whether intervention in G.R. No. 115044 was the proper remedy for the
national government to take in questioning the existence of a valid ADC franchise to operate the jai-alai or whether a
separate action for quo warranto under Section 2, Rule 66 of the Rules of Court was the proper remedy.
We need not belabor this issue since counsel for respondent ADC agreed to the suggestion that this Court once and
for all settle all substantive issues raised by the parties in these cases. Moreover, this Court can consider the
petition filed in G.R. No. 117263 as one for quo warranto which is within the original jurisdiction of the Court under
section 5(1), Article VIII of the Constitution. 3
On the propriety of intervention by the Republic, however, it will be recalled that this Court in Director of Lands v.
Court of Appeals (93 SCRA 238) allowed intervention even beyond the period prescribed in Section 2 Rule 12 of the
Rules of Court. The Court ruled in said case that a denial of the motions for intervention would "lead the Court to
commit an act of injustice to the movants, to their successor-in-interest and to all purchasers for value and in good
faith and thereby open the door to fraud, falsehood and misrepresentation, should intervenors' claim be proven to be
true."
In the present case, the resulting injustice and injury, should the national government's allegations be proven
correct, are manifest, since the latter has squarely questioned the very existence of a valid franchise to maintain and
operate the jai-alai (which is a gambling operation) in favor of ADC. As will be more extensively discussed later, the
national government contends that Manila Ordinance No. 7065 which purported to grant to ADC a franchise to
conduct jai-alai operations is void and ultra vires since Republic Act No. 954, approved on 20 June 1953, or very
much earlier than said Ordinance No. 7065, the latter approved 7 September 1971, in Section 4 thereof, requires
a legislative franchise, not a municipal franchise, for the operation of jai-alai. Additionally, the national government
argues that even assuming, arguendo, that the abovementioned ordinance is valid, ADC's franchise was
nonetheless effectively revoked by Presidential decree No. 771, issued on 20 August 1975, Sec. 3 of which
expressly revoked all existing franchises and permits to operate all forms of gambling facilities (including the jai-alai)
issued by local governments.
On the other hand, ADC's position is that Ordinance No. 7065 was validly enacted by the City of Manila pursuant to
its delegated powers under it charter, Republic Act No. 409. ADC also squarely assails the constitutionality of PD
No. 771 as violative of the equal protection and non-impairment clauses of the Constitution. In this connection,
counsel for ADC contends that this Court should really rule on the validity of PD No. 771 to be able to determine
whether ADC continues to possess a valid franchise.
It will undoubtedly be a grave injustice to both parties in this case if this Court were to shirk from ruling on the issue
of constitutionality of PD No. 771. Such issue has, in our view, become the very lis mota in resolving the present
controversy, in view of ADC's insistence that it was granted a valid and legal franchise by Ordinance No. 7065 to
operate the jai-alai.
The time-honored doctrine is that all laws (PD No. 771 included) are presumed valid and constitutional until or
unless otherwise ruled by this Court. Not only this; Article XVIII Section 3 of the Constitution states:
Sec. 3. All existing laws, decrees, executive orders, proclamations, letters of instructions and other
executive issuances not inconsistent with this Constitution shall remain operative until amended,
repealed or revoked.
There is nothing on record to show or even suggest that PD No. 771 has been repealed, altered or amended by any
subsequent law or presidential issuance (when the executive still exercised legislative powers).
Neither can it be tenably stated that the issue of the continued existence of ADC's franchise by reason of the
unconstitutionality of PD No. 771 was settled in G.R. No. 115044, for the decision of the Court's First Division in said
case, aside from not being final, cannot have the effect of nullifying PD No. 771 as unconstitutional, since only the
Court En Banc has that power under Article VIII, Section 4(2) of the Constitution. 4
And on the question of whether or not the government is estopped from contesting ADC's possession of a valid
franchise, the well-settled rule is that the State cannot be put in estoppel by the mistakes or errors, if any, of its
officials or agents (Republic v. Intermediate Appellate Court, 209 SCRA 90)
Consequently, in the light of the foregoing expostulation, we conclude that the republic (in contra distinction to the
City of Manila) may be allowed to intervene in G.R. No. 115044. The Republic is intervening in G.R. No. 115044 in
the exercise, not of its business or proprietary functions, but in the exercise of its governmental functions to protect
public morals and promote the general welfare.
II
Anent the question of whether ADC has a valid franchise to operate the Jai-Alai de Manila, a statement of the
pertinent laws is in order.
1. The Charter of the City of Manila was enacted by Congress on 18 June 1949. Section 18 thereof provides:
Sec. 18. Legislative Powers. The Municipal Board shall have the following legislative powers:
xxx xxx xxx
(jj) To tax, license, permit and regulate wagers or betting by the public on boxing, sipa, bowling,
billiards, pools, horse and dog races, cockpits, jai-alai, roller or ice-skating on any sporting or athletic
contests, as well as grant exclusive rights to establishments for this purpose, notwithstanding any
existing law to the contrary.
2. On 1 January 1951, Executive Order No. 392 was issued transferring the authority to regulate jai-alais from local
government to the Games and Amusements Board (GAB).
3. On 20 June 1953, Congress enacted Republic Act No. 954, entitled "An Act to Prohibit With Horse Races and
Basque Pelota Games (Jai-Alai), And To Prescribe Penalties For Its Violation". The provisions of Republic Act No.
954 relating to jai-alai are as follows:
Sec. 4. No person, or group of persons other than the operator or maintainer of a fronton with
legislative franchise to conduct basque pelota games (Jai-alai), shall offer, to take or arrange bets on

any basque pelota game or event, or maintain or use a totalizator or other device, method or system
to bet or gamble on any basque pelota game or event. (emphasis supplied).
Sec. 5. No person, operator or maintainer of a fronton with legislative franchise to conduct basque
pelota games shall offer, take, or arrange bets on any basque pelota game or event, or maintain or
use a totalizator or other device, method or system to bet or gamble on any basque pelota game or
event outside the place, enclosure, or fronton where the basque pelota game is held. (emphasis
supplied).
4. On 07 September 1971, however, the Municipal Board of Manila nonetheless passed Ordinance No. 7065
entitled "An Ordinance Authorizing the Mayor To Allow And Permit The Associated Development Corporation To
Establish, Maintain And Operate A Jai-Alai In The City Of Manila, Under Certain Terms And Conditions And For
Other Purposes."
5. On 20 August 1975, Presidential Decree No. 771 was issued by then President Marcos. The decree, entitled
"Revoking All Powers and Authority of Local Government(s) To Grant Franchise, License or Permit And Regulate
Wagers Or Betting By The Public On Horse And Dog Races, Jai-Alai Or Basque Pelota, And Other Forms Of
Gambling", in Section 3 thereof, expressly revoked all existing franchises and permits issued by local governments.
6. On 16 October 1975, Presidential Decree No. 810, entitled "An Act granting The Philippine Jai-Alai And
Amusement Corporation A Franchise To Operate, Construct And Maintain A Fronton For Basque Pelota And Similar
Games of Skill In THE Greater Manila Area," was promulgated.
7 On 08 May 1987, then President Aquino, by virtue of Article XVIII, Section 6, of the Constitution, which allowed the
incumbent legislative powers until the first Congress was convened, issued Executive Order No. 169 expressly
repealing PD 810 and revoking and cancelling the franchise granted to the Philippine Jai-Alai and Amusement
Corporation.
Petitioners in G.R. No. 117263 argue that Republic Act No. 954 effectively removed the power of the Municipal
Board of Manila to grant franchises for gambling operations. It is argued that the term "legislative franchise" in Rep.
Act No. 954 is used to refer to franchises issued by Congress.
On the other hand, ADC contends that Republic Act N. 409 (Manila Chapter) gives legislative powers to the
Municipal Board to grant franchises, and since Republic Act No. 954 does not specifically qualify the word
"legislative" as referring exclusively to Congress, then Rep. Act No. 954 did not remove the power of the Municipal
Board under Section 18(jj) of Republic Act No. 409 and consequently it was within the power of the City of Manila to
allow ADC to operate the jai-alai in the City of Manila.
On this point, the government counter-argues that the term "legislative powers" is used in Rep. Act No. 409 merely
to distinguish the powers under Section 18 of the law from the other powers of the Municipal Board, but that the
term "legislative franchise" in Rep. Act No. 954 refers to a franchise granted solely by Congress.
Further, the government argues that Executive Order No. 392 dated 01 January 1951 transferred even the power to
regulate Jai-Alai from the local governments to the Games and Amusements Board (GAB), a national government
agency.
It is worthy of note that neither of the authorities relied upon by ADC to support its alleged possession of a valid
franchise, namely the Charter of the City of Manila (Rep. Act No. 409) and Manila Ordinance No. 7065 uses the
word "franchise". Rep. Act No. 409 empowers the Municipal Board of Manila to "tax, license,
permit and regulatewagers or betting" and to "grant exclusive rights to establishments", while Ordinance No. 7065
authorized the Manila City Mayor to "allow and permit" ADC to operate jai-alai facilities in the City of Manila.
It is clear from the foregoing that Congress did not delegate to the City of Manila the power "to franchise" wagers or
betting, including the jai-alai, but retained for itself such power "to franchise". What Congress delegated to the City
of Manila in Rep. Act No. 409, with respect to wagers or betting, was the power to "license, permit, or regulate"
which therefore means that a license or permit issued by the City of Manila to operate a wager or betting activity,
such as the jai-alai where bets are accepted, would not amount to something meaningful UNLESS the holder of the
permit or license was also FRANCHISED by the national government to so operate. Moreover, even this power to
license, permit, or regulate wagers or betting on jai-alai was removed from local governments, including the City of
Manila, and transferred to the GAB on 1 January 1951 by Executive Order No. 392. The net result is that the
authority to grant franchises for the operation of jai-alai frontons is in Congress, while the regulatory function is
vested in the GAB.
In relation, therefore, to the facts of this case, since ADC has no franchise from Congress to operate the jai-alai, it
may not so operate even if its has a license or permit from the City Mayor to operate the jai-alai in the City of Manila.
It cannot be overlooked, in this connection, that the Revised Penal Code punishes gambling and betting under
Articles 195 to 199 thereof. Gambling is thus generally prohibited by law, unless another law is enacted byCongress
expressly exempting or excluding certain forms of gambling from the reach of criminal law. Among these form the
reach of criminal law. Among these forms of gambling allowed by special law are the horse races authorized by
Republic Acts Nos. 309 and 983 and gambling casinos authorized under Presidential Decree No. 1869.
While jai-alai as a sport is not illegal per se, the accepting of bets or wagers on the results of jai-alai games is
undoubtedly gambling and, therefore, a criminal offense punishable under Articles 195-199 of the Revised Penal
Code, unless it is shown that a later or special law had been passed allowing it. ADC has not shown any such
special law.
Republic Act No. 409 (the Revised Charter of the City of Manila) which was enacted by Congress on 18 June 1949
gave the Municipal Board certain delegated legislative powers under Section 18. A perusal of the powers
enumerated under Section 18 shows that these powers are basically regulatory in nature. 5 The regulatory nature of
these powers finds support not only in the plain words of the enumerations under Section 28 but also in this Court's
ruling inPeople v. Vera (65 Phil. 56).
In Vera, this Court declared that a law which gives the Provincial Board the discretion to determine whether or not a
law of general application (such as, the Probation law-Act No. 4221) would or would not be operative within the
province, is unconstitutional for being an undue delegation of legislative power.

From the ruling in Vera, it would be logical to conclude that, if ADC's arguments were to prevail, this Court would
likewise declare Section 18(jj) of the Revised Charter of Manila unconstitutional for the power it would delegate to
the Municipal Board of Manila would give the latter the absolute and unlimited discretion to render the penal code
provisions on gambling inapplicable or inoperative to persons or entities issued permits to operate gambling
establishments in the City of Manila.
We need not go to this extent, however, since the rule is that laws must be presumed valid, constitutional and in
harmony with other laws. Thus, the relevant provisions of Rep. Acts Nos. 409 and 954 and Ordinance No. 7065
should be taken together and it should then be clear that the legislative powers of the Municipal Board should be
understood to be regulatory in nature and that Republic Act No. 954 should be understood to refer tocongressional
franchises, as a necessity for the operation of jai-alai.
We need not, however, again belabor this issue further since the task at hand which will ultimately, and with finality,
decide the issues in this case is to determine whether PD No. 771 validly revoked ADC's franchise to operate the
jai-alai, assuming (without conceding) that it indeed possessed such franchise under Ordinance No. 7065.
ADC argues that PD No. 771 is unconstitutional for being violative of the equal protection and non-impairment
provisions of the Constitution. On the other hand, the government contends that PD No. 771 is a valid exercise of
the inherent police power of the State.
The police power has been described as the least limitable of the inherent powers of the State. It is based on the
ancient doctrine salus populi est suprema lex (the welfare of the people is the supreme law.) In the early case
of Rubi v. Provincial Board of Mindoro (39 Phil. 660), this Court through Mr. Justice George A. Malcolm stated thus:
The police power of the State . . . is a power co-extensive with self-protection, and is not inaptly
termed the "law of overruling necessity." It may be said to be that inherent and plenary power in the
State which enables it to prohibit all things hurtful to the comfort, safety and welfare of society.
Carried onward by the current of legislation, the judiciary rarely attempts to dam the onrushing power
of legislative discretion, provided the purposes of the law do not go beyond the great principles that
mean security for the public welfare or do not arbitrarily interfere with the right of the individual.
In the matter of PD No. 771, the purpose of the law is clearly stated in the "whereas clause" as follows:
WHEREAS, it has been reported that in spite of the current drive of our law enforcement agencies
against vices and illegal gambling, these social ills are still prevalent in many areas of the country;
WHEREAS, there is need to consolidate all the efforts of the government to eradicate and minimize
vices and other forms of social ills in pursuance of the social and economic development program
under the new society;
WHEREAS, in order to effectively control and regulate wagers or betting by the public on horse and
dog races, jai-alai and other forms of gambling there is a necessity to transfer the issuance of permit
and/or franchise from local government to the National Government.
It cannot be argued that the control and regulation of gambling do not promote public morals and welfare. Gambling
is essentially antagonistic and self-reliance. It breeds indolence and erodes the value of good, honest and hard
work. It is, as very aptly stated by PD No. 771, a vice and a social ill which government must minimize (if not
eradicate) in pursuit of social and economic development.
In Magtajas v. Pryce Properties Corporation (20 July 1994, G.R. No. 111097), this Court stated thru Mr. Justice
Isagani A. Cruz:
In the exercise of its own discretion, the legislative power may prohibit gambling altogether or allow it
without limitation or it may prohibit some forms of gambling and allow others for whatever reasons it
may consider sufficient. Thus, it has prohibited jueteng and monte but permits lotteries, cockfighting
and horse-racing. In making such choices, Congress has consulted its own wisdom, which this Court
has no authority to review, much less reverse. Well has it been said that courts do not sit to resolve
the merits of conflicting theories. That is the prerogative of the political departments. It is settled that
questions regarding wisdom, morality and practicability of statutes are not addressed to the judiciary
but may be resolved only by the executive and legislative departments, to which the function belongs
in our scheme of government. (Emphasis supplied)
Talks regarding the supposed vanishing line between right and privilege in American constitutional law has no
relevance in the context of these cases since the reference there is to economic regulations. On the other hand, jaialai is not a mere economic activity which the law seeks to regulate. It is essentially gambling and whether it should
be permitted and, if so, under what conditions are questions primarily for the lawmaking authority to determine,
talking into account national and local interests. Here, it is the police power of the State that is paramount.
ADC questions the motive for the issuance of PD Nos. 771. Clearly, however, this Court cannot look into allegations
that PD No. 771 was enacted to benefit a select group which was later given authority to operate the jai-alai under
PD No. 810. The examination of legislative motivation is generally prohibited. (Palmer v. Thompson, 403 U.S. 217,
29 L. Ed. 2d 438 [1971] per Black, J.) There is, the first place, absolute lack of evidence to support ADC's allegation
of improper motivation in the issuance of PD No. 771. In the second place, as already averred, this Court cannot go
behind the expressed and proclaimed purposes of PD No. 771, which are reasonable and even laudable.
It should also be remembered that PD No. 771 provides that the national government can subsequently grant
franchises "upon proper application and verification of the qualifications of the applicant." ADC has not alleged that it
filed an application for a franchise with the national government subsequent to the enactment of PD No. 771; thus,
the allegations abovementioned (of preference to a select group) are based on conjectures, speculations and
imagined biases which do not warrant the consideration of this Court.
On the other hand, it is noteworthy that while then president Aquino issued Executive Order No. 169 revoking PD
No. 810 (which granted a franchise to a Marcos-crony to operate the jai-alai), she did not scrap or repeal PD No.
771 which had revoked all franchises to operate jai-alais issued by local governments, thereby re-affirming the
government policy that franchises to operate jai-alais are for the national government (not local governments) to
consider and approve.

On the alleged violation of the non-impairment and equal protection clauses of the Constitution, it should be
remembered that a franchise is not in the strict sense a simple contract but rather it is more importantly, a mere
privilege specially in matters which are within the government's power to regulate and even prohibit through the
exercise of the police power. Thus, a gambling franchise is always subject to the exercise of police power for the
public welfare.
In RCPI v. NTC (150 SCRA 450), we held that:
A franchise started out as a "royal privilege or (a) branch of the King's prerogative, subsisting in the
hands of a subject." This definition was given by Finch, adopted by Blackstone, and accepted by
every authority since . . . Today, a franchise being merely a privilege emanating from the sovereign
power of the state and owing its existence to a grant, is subject to regulation by the state itself by
virtue of its police power through its administrative agencies.
There is a stronger reason for holding ADC's permit to be a mere privilege because jai-alai, when played for bets, is
pure and simple gambling. To analogize a gambling franchise for the operation of a public utility, such as public
transportation company, is to trivialize the great historic origin of this branch of royal privilege.
As earlier noted, ADC has not alleged ever applying for a franchise under the provisions of PD No. 771. and yet, the
purpose of PD No. 771 is quite clear from its provisions, i.e., to give to the national government the exclusive power
to grant gambling franchises. Thus, all franchises then existing were revoked but were made subject to reissuance
by the national government upon compliance by the applicant with government-set qualifications and requirements.
There was no violation by PD No. 771 of the equal protection clause since the decree revoked all franchises issued
by local governments without qualification or exception. ADC cannot allege violation of the equal protection clause
simply because it was the only one affected by the decree, for as correctly pointed out by the government, ADC was
not singled out when all jai-alai franchises were revoked. Besides, it is too late in the day for ADC to seek redress
for alleged violation of its constitutional rights for it could have raised these issues as early as 1975, almost twenty
920) years ago.
Finally, we do not agree that Section 3 of PD No. 771 and the requirement of a legislative franchise in Republic Act
No. 954 are "riders" to the two 92) laws and are violative of the rule that laws should embrace one subject which
shall be expressed in the title, as argued by ADC. In Cordero v. Cabatuando (6 SCRA 418), this Court ruled that the
requirement under the constitution that all laws should embrace only one subject which shall be expressed in the
title is sufficiently met if the title is comprehensive enough reasonably to include the general object which the statute
seeks to effect, without expressing each and every end and means necessary or convenient for the accomplishing
of the objective.
III
On the issue of whether or not there was grave abuse of discretion committed by respondent Judge Reyes in
issuing the temporary restraining order (later converted to a writ of preliminary injunction) and the writ of
preliminary mandatory injunction, we hold and rule there was.
Section 3, Rule 58 of the rules of Court provides for the grounds for the issuance of a preliminary injunction. While
ADC could allege these grounds, respondent judge should have taken judicial notice of Republic Act No. 954 and
PD 771, under Section 1 rule 129 of the Rules of court. These laws negate the existence of any legal right on the
part of ADC to the reliefs it sought so as to justify the issuance of a writ of preliminary injunction. since PD No. 771
and Republic Act No. 954 are presumed valid and constitutional until ruled otherwise by the Supreme Court after
due hearing, ADC was not entitled to the writs issued and consequently there was grave abuse of discretion in
issuing them.
WHEREFORE, for the foregoing reasons, judgment is hereby rendered:
1. allowing the Republic of the Philippines to intervene in G.R. No. 115044.
2. declaring Presidential Decree No. 771 valid and constitutional.
3. declaring that respondent Associated Development corporation (ADC) does not possess the
required congressional franchise to operate and conduct the jai-alai under Republic Act No. 954 and
Presidential Decree No. 771.
4. setting aside the writs of preliminary injunction and preliminary mandatory injunction issued by
respondent Judge Vetino Reyes in civil Case No. 94-71656.
SO ORDERED.

G.R. No. 127882

January 27, 2004
LA BUGAL-B'LAAN TRIBAL ASSOCIATION, INC., represented by its Chairman F'LONG MIGUEL M.
LUMAYONG, WIGBERTO E. TAADA, PONCIANO BENNAGEN, JAIME TADEO, RENATO R. CONSTANTINO,
JR., F'LONG AGUSTIN M. DABIE, ROBERTO P. AMLOY, RAQIM L. DABIE, SIMEON H. DOLOJO, IMELDA M.
GANDON, LENY B. GUSANAN, MARCELO L. GUSANAN, QUINTOL A. LABUAYAN, LOMINGGES D. LAWAY,
BENITA P. TACUAYAN, minors JOLY L. BUGOY, represented by his father UNDERO D. BUGOY, ROGER M.
DADING, represented by his father ANTONIO L. DADING, ROMY M. LAGARO, represented by his father
TOTING A. LAGARO, MIKENY JONG B. LUMAYONG, represented by his father MIGUEL M. LUMAYONG,
RENE T. MIGUEL, represented by his mother EDITHA T. MIGUEL, ALDEMAR L. SAL, represented by his
father DANNY M. SAL, DAISY RECARSE, represented by her mother LYDIA S. SANTOS, EDWARD M. EMUY,
ALAN P. MAMPARAIR, MARIO L. MANGCAL, ALDEN S. TUSAN, AMPARO S. YAP, VIRGILIO CULAR,
MARVIC M.V.F. LEONEN, JULIA REGINA CULAR, GIAN CARLO CULAR, VIRGILIO CULAR, JR., represented
by their father VIRGILIO CULAR, PAUL ANTONIO P. VILLAMOR, represented by his parents JOSE
VILLAMOR and ELIZABETH PUA-VILLAMOR, ANA GININA R. TALJA, represented by her father MARIO
JOSE B. TALJA, SHARMAINE R. CUNANAN, represented by her father ALFREDO M. CUNANAN, ANTONIO
JOSE A. VITUG III, represented by his mother ANNALIZA A. VITUG, LEAN D. NARVADEZ, represented by his
father MANUEL E. NARVADEZ, JR., ROSERIO MARALAG LINGATING, represented by her father RIO
OLIMPIO A. LINGATING, MARIO JOSE B. TALJA, DAVID E. DE VERA, MARIA MILAGROS L. SAN JOSE, SR.,
SUSAN O. BOLANIO, OND, LOLITA G. DEMONTEVERDE, BENJIE L. NEQUINTO,1 ROSE LILIA S. ROMANO,
ROBERTO S. VERZOLA, EDUARDO AURELIO C. REYES, LEAN LOUEL A. PERIA, represented by his father
ELPIDIO V. PERIA,2 GREEN FORUM PHILIPPINES, GREEN FORUM WESTERN VISAYAS, (GF-WV),
ENVIRONMETAL LEGAL ASSISTANCE CENTER (ELAC), PHILIPPINE KAISAHAN TUNGO SA KAUNLARAN
NG KANAYUNAN AT REPORMANG PANSAKAHAN (KAISAHAN),3 KAISAHAN TUNGO SA KAUNLARAN NG
KANAYUNAN AT REPORMANG PANSAKAHAN (KAISAHAN), PARTNERSHIP FOR AGRARIAN REFORM and
RURAL DEVELOPMENT SERVICES, INC. (PARRDS), PHILIPPINE PART`NERSHIP FOR THE DEVELOPMENT
OF HUMAN RESOURCES IN THE RURAL AREAS, INC. (PHILDHRRA), WOMEN'S LEGAL BUREAU (WLB),
CENTER FOR ALTERNATIVE DEVELOPMENT INITIATIVES, INC. (CADI), UPLAND DEVELOPMENT
INSTITUTE (UDI), KINAIYAHAN FOUNDATION, INC., SENTRO NG ALTERNATIBONG LINGAP PANLIGAL
(SALIGAN), LEGAL RIGHTS AND NATURAL RESOURCES CENTER, INC. (LRC), petitioners,
vs.
VICTOR O. RAMOS, SECRETARY, DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES (DENR),
HORACIO RAMOS, DIRECTOR, MINES AND GEOSCIENCES BUREAU (MGB-DENR), RUBEN TORRES,
EXECUTIVE SECRETARY, and WMC (PHILIPPINES), INC.4 respondents.
DECISION
CARPIO-MORALES, J.:
The present petition for mandamus and prohibition assails the constitutionality of Republic Act No. 7942, 5otherwise
known as the PHILIPPINE MINING ACT OF 1995, along with the Implementing Rules and Regulations issued
pursuant thereto, Department of Environment and Natural Resources (DENR) Administrative Order 96-40, and of
the Financial and Technical Assistance Agreement (FTAA) entered into on March 30, 1995 by the Republic of the
Philippines and WMC (Philippines), Inc. (WMCP), a corporation organized under Philippine laws.
On July 25, 1987, then President Corazon C. Aquino issued Executive Order (E.O.) No. 2796 authorizing the DENR
Secretary to accept, consider and evaluate proposals from foreign-owned corporations or foreign investors for
contracts or agreements involving either technical or financial assistance for large-scale exploration, development,
and utilization of minerals, which, upon appropriate recommendation of the Secretary, the President may execute
with the foreign proponent. In entering into such proposals, the President shall consider the real contributions to the
economic growth and general welfare of the country that will be realized, as well as the development and use of
local scientific and technical resources that will be promoted by the proposed contract or agreement. Until Congress
shall determine otherwise, large-scale mining, for purpose of this Section, shall mean those proposals for contracts
or agreements for mineral resources exploration, development, and utilization involving a committed capital
investment in a single mining unit project of at least Fifty Million Dollars in United States Currency (US
$50,000,000.00).7
On March 3, 1995, then President Fidel V. Ramos approved R.A. No. 7942 to "govern the exploration, development,
utilization and processing of all mineral resources."8 R.A. No. 7942 defines the modes of mineral agreements for
mining operations,9 outlines the procedure for their filing and approval,10 assignment/transfer11and withdrawal,12 and
fixes their terms.13 Similar provisions govern financial or technical assistance agreements.14
The law prescribes the qualifications of contractors15 and grants them certain rights, including timber,16 water17and
easement18 rights, and the right to possess explosives.19 Surface owners, occupants, or concessionaires are
forbidden from preventing holders of mining rights from entering private lands and concession areas.20 A procedure
for the settlement of conflicts is likewise provided for.21
The Act restricts the conditions for exploration,22 quarry23 and other24 permits. It regulates the transport, sale and
processing of minerals,25 and promotes the development of mining communities, science and mining
technology,26 and safety and environmental protection.27
The government's share in the agreements is spelled out and allocated,28 taxes and fees are imposed,29incentives
granted.30 Aside from penalizing certain acts,31 the law likewise specifies grounds for the cancellation, revocation
and termination of agreements and permits.32
On April 9, 1995, 30 days following its publication on March 10, 1995 in Malaya and Manila Times, two newspapers
of general circulation, R.A. No. 7942 took effect.33 Shortly before the effectivity of R.A. No. 7942, however, or on
March 30, 1995, the President entered into an FTAA with WMCP covering 99,387 hectares of land in South
Cotabato, Sultan Kudarat, Davao del Sur and North Cotabato.34

On August 15, 1995, then DENR Secretary Victor O. Ramos issued DENR Administrative Order (DAO) No. 95-23,
s. 1995, otherwise known as the Implementing Rules and Regulations of R.A. No. 7942. This was later repealed by
DAO No. 96-40, s. 1996 which was adopted on December 20, 1996.
On January 10, 1997, counsels for petitioners sent a letter to the DENR Secretary demanding that the DENR stop
the implementation of R.A. No. 7942 and DAO No. 96-40,35 giving the DENR fifteen days from receipt36 to act
thereon. The DENR, however, has yet to respond or act on petitioners' letter.37
Petitioners thus filed the present petition for prohibition and mandamus, with a prayer for a temporary restraining
order. They allege that at the time of the filing of the petition, 100 FTAA applications had already been filed, covering
an area of 8.4 million hectares,38 64 of which applications are by fully foreign-owned corporations covering a total of
5.8 million hectares, and at least one by a fully foreign-owned mining company over offshore areas.39
Petitioners claim that the DENR Secretary acted without or in excess of jurisdiction:
I
x x x in signing and promulgating DENR Administrative Order No. 96-40 implementing Republic Act No. 7942, the
latter being unconstitutional in that it allows fully foreign owned corporations to explore, develop, utilize and exploit
mineral resources in a manner contrary to Section 2, paragraph 4, Article XII of the Constitution;
II
x x x in signing and promulgating DENR Administrative Order No. 96-40 implementing Republic Act No. 7942, the
latter being unconstitutional in that it allows the taking of private property without the determination of public use and
for just compensation;
III
x x x in signing and promulgating DENR Administrative Order No. 96-40 implementing Republic Act No. 7942, the
latter being unconstitutional in that it violates Sec. 1, Art. III of the Constitution;
IV
x x x in signing and promulgating DENR Administrative Order No. 96-40 implementing Republic Act No. 7942, the
latter being unconstitutional in that it allows enjoyment by foreign citizens as well as fully foreign owned corporations
of the nation's marine wealth contrary to Section 2, paragraph 2 of Article XII of the Constitution;
V
x x x in signing and promulgating DENR Administrative Order No. 96-40 implementing Republic Act No. 7942, the
latter being unconstitutional in that it allows priority to foreign and fully foreign owned corporations in the exploration,
development and utilization of mineral resources contrary to Article XII of the Constitution;
VI
x x x in signing and promulgating DENR Administrative Order No. 96-40 implementing Republic Act No. 7942, the
latter being unconstitutional in that it allows the inequitable sharing of wealth contrary to Sections [sic] 1, paragraph
1, and Section 2, paragraph 4[,] [Article XII] of the Constitution;
VII
x x x in recommending approval of and implementing the Financial and Technical Assistance Agreement between
the President of the Republic of the Philippines and Western Mining Corporation Philippines Inc. because the same
is illegal and unconstitutional.40
They pray that the Court issue an order:
(a) Permanently enjoining respondents from acting on any application for Financial or Technical Assistance
Agreements;
(b) Declaring the Philippine Mining Act of 1995 or Republic Act No. 7942 as unconstitutional and null and
void;
(c) Declaring the Implementing Rules and Regulations of the Philippine Mining Act contained in DENR
Administrative Order No. 96-40 and all other similar administrative issuances as unconstitutional and null
and void; and
(d) Cancelling the Financial and Technical Assistance Agreement issued to Western Mining Philippines, Inc.
as unconstitutional, illegal and null and void.41
Impleaded as public respondents are Ruben Torres, the then Executive Secretary, Victor O. Ramos, the then DENR
Secretary, and Horacio Ramos, Director of the Mines and Geosciences Bureau of the DENR. Also impleaded is
private respondent WMCP, which entered into the assailed FTAA with the Philippine Government. WMCP is owned
by WMC Resources International Pty., Ltd. (WMC), "a wholly owned subsidiary of Western Mining Corporation
Holdings Limited, a publicly listed major Australian mining and exploration company."42 By WMCP's information, "it is
a 100% owned subsidiary of WMC LIMITED."43
Respondents, aside from meeting petitioners' contentions, argue that the requisites for judicial inquiry have not been
met and that the petition does not comply with the criteria for prohibition and mandamus. Additionally, respondent
WMCP argues that there has been a violation of the rule on hierarchy of courts.
After petitioners filed their reply, this Court granted due course to the petition. The parties have since filed their
respective memoranda.
WMCP subsequently filed a Manifestation dated September 25, 2002 alleging that on January 23, 2001, WMC sold
all its shares in WMCP to Sagittarius Mines, Inc. (Sagittarius), a corporation organized under Philippine
laws.44 WMCP was subsequently renamed "Tampakan Mineral Resources Corporation."45 WMCP claims that at
least 60% of the equity of Sagittarius is owned by Filipinos and/or Filipino-owned corporations while about 40% is
owned by Indophil Resources NL, an Australian company.46 It further claims that by such sale and transfer of
shares, "WMCP has ceased to be connected in any way with WMC."47
By virtue of such sale and transfer, the DENR Secretary, by Order of December 18, 2001, 48 approved the transfer
and registration of the subject FTAA from WMCP to Sagittarius. Said Order, however, was appealed by Lepanto
Consolidated Mining Co. (Lepanto) to the Office of the President which upheld it by Decision of July 23, 2002. 49Its
motion for reconsideration having been denied by the Office of the President by Resolution of November 12,
2002,50 Lepanto filed a petition for review51 before the Court of Appeals. Incidentally, two other petitions for review

related to the approval of the transfer and registration of the FTAA to Sagittarius were recently resolved by this
Court.52
It bears stressing that this case has not been rendered moot either by the transfer and registration of the FTAA to a
Filipino-owned corporation or by the non-issuance of a temporary restraining order or a preliminary injunction to stay
the above-said July 23, 2002 decision of the Office of the President.53 The validity of the transfer remains in dispute
and awaits final judicial determination. This assumes, of course, that such transfer cures the FTAA's alleged
unconstitutionality, on which question judgment is reserved.
WMCP also points out that the original claimowners of the major mineralized areas included in the WMCP FTAA,
namely, Sagittarius, Tampakan Mining Corporation, and Southcot Mining Corporation, are all Filipino-owned
corporations,54 each of which was a holder of an approved Mineral Production Sharing Agreement awarded in 1994,
albeit their respective mineral claims were subsumed in the WMCP FTAA;55 and that these three companies are the
same companies that consolidated their interests in Sagittarius to whom WMC sold its 100% equity in
WMCP.56 WMCP concludes that in the event that the FTAA is invalidated, the MPSAs of the three corporations
would be revived and the mineral claims would revert to their original claimants.57
These circumstances, while informative, are hardly significant in the resolution of this case, it involving the validity of
the FTAA, not the possible consequences of its invalidation.
Of the above-enumerated seven grounds cited by petitioners, as will be shown later, only the first and the last need
be delved into; in the latter, the discussion shall dwell only insofar as it questions the effectivity of E. O. No. 279 by
virtue of which order the questioned FTAA was forged.
I
Before going into the substantive issues, the procedural questions posed by respondents shall first be tackled.
REQUISITES FOR JUDICIAL REVIEW
When an issue of constitutionality is raised, this Court can exercise its power of judicial review only if the following
requisites are present:
(1) The existence of an actual and appropriate case;
(2) A personal and substantial interest of the party raising the constitutional question;
(3) The exercise of judicial review is pleaded at the earliest opportunity; and
(4) The constitutional question is the lis mota of the case. 58
Respondents claim that the first three requisites are not present.
Section 1, Article VIII of the Constitution states that "(j)udicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally demandable and enforceable." The power of judicial
review, therefore, is limited to the determination of actual cases and controversies.59
An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination,
not conjectural or anticipatory,60 lest the decision of the court would amount to an advisory opinion.61 The power
does not extend to hypothetical questions62 since any attempt at abstraction could only lead to dialectics and barren
legal questions and to sterile conclusions unrelated to actualities.63
"Legal standing" or locus standi has been defined as a personal and substantial interest in the case such that the
party has sustained or will sustain direct injury as a result of the governmental act that is being challenged,64alleging
more than a generalized grievance.65 The gist of the question of standing is whether a party alleges "such personal
stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court depends for illumination of difficult constitutional questions." 66Unless a person is
injuriously affected in any of his constitutional rights by the operation of statute or ordinance, he has no standing.67
Petitioners traverse a wide range of sectors. Among them are La Bugal B'laan Tribal Association, Inc., a farmers
and indigenous people's cooperative organized under Philippine laws representing a community actually affected by
the mining activities of WMCP, members of said cooperative,68 as well as other residents of areas also affected by
the mining activities of WMCP.69 These petitioners have standing to raise the constitutionality of the questioned
FTAA as they allege a personal and substantial injury. They claim that they would suffer "irremediable
displacement"70 as a result of the implementation of the FTAA allowing WMCP to conduct mining activities in their
area of residence. They thus meet the appropriate case requirement as they assert an interest adverse to that of
respondents who, on the other hand, insist on the FTAA's validity.
In view of the alleged impending injury, petitioners also have standing to assail the validity of E.O. No. 279, by
authority of which the FTAA was executed.
Public respondents maintain that petitioners, being strangers to the FTAA, cannot sue either or both contracting
parties to annul it.71 In other words, they contend that petitioners are not real parties in interest in an action for the
annulment of contract.
Public respondents' contention fails. The present action is not merely one for annulment of contract but for
prohibition and mandamus. Petitioners allege that public respondents acted without or in excess of jurisdiction in
implementing the FTAA, which they submit is unconstitutional. As the case involves constitutional questions, this
Court is not concerned with whether petitioners are real parties in interest, but with whether they have legal
standing. As held in Kilosbayan v. Morato:72
x x x. "It is important to note . . . that standing because of its constitutional and public policy underpinnings, is very
different from questions relating to whether a particular plaintiff is the real party in interest or has capacity to sue.
Although all three requirements are directed towards ensuring that only certain parties can maintain an action,
standing restrictions require a partial consideration of the merits, as well as broader policy concerns relating to the
proper role of the judiciary in certain areas.["] (FRIEDENTHAL, KANE AND MILLER, CIVIL PROCEDURE 328
[1985])
Standing is a special concern in constitutional law because in some cases suits are brought not by parties who have
been personally injured by the operation of a law or by official action taken, but by concerned citizens, taxpayers or
voters who actually sue in the public interest. Hence, the question in standing is whether such parties have "alleged
such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the

presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions."
(Baker v. Carr, 369 U.S. 186, 7 L.Ed.2d 633 [1962].)
As earlier stated, petitioners meet this requirement.
The challenge against the constitutionality of R.A. No. 7942 and DAO No. 96-40 likewise fulfills the requisites of
justiciability. Although these laws were not in force when the subject FTAA was entered into, the question as to their
validity is ripe for adjudication.
The WMCP FTAA provides:
14.3 Future Legislation
Any term and condition more favourable to Financial &Technical Assistance Agreement contractors resulting from
repeal or amendment of any existing law or regulation or from the enactment of a law, regulation or administrative
order shall be considered a part of this Agreement.
It is undisputed that R.A. No. 7942 and DAO No. 96-40 contain provisions that are more favorable to WMCP, hence,
these laws, to the extent that they are favorable to WMCP, govern the FTAA.
In addition, R.A. No. 7942 explicitly makes certain provisions apply to pre-existing agreements.
SEC. 112. Non-impairment of Existing Mining/Quarrying Rights. x x x That the provisions of Chapter XIV on
government share in mineral production-sharing agreement and of Chapter XVI on incentives of this Act shall
immediately govern and apply to a mining lessee or contractor unless the mining lessee or contractor indicates his
intention to the secretary, in writing, not to avail of said provisions x x x Provided, finally, That such leases,
production-sharing agreements, financial or technical assistance agreements shall comply with the applicable
provisions of this Act and its implementing rules and regulations.
As there is no suggestion that WMCP has indicated its intention not to avail of the provisions of Chapter XVI of R.A.
No. 7942, it can safely be presumed that they apply to the WMCP FTAA.
Misconstruing the application of the third requisite for judicial review that the exercise of the review is pleaded at
the earliest opportunity WMCP points out that the petition was filed only almost two years after the execution of
the FTAA, hence, not raised at the earliest opportunity.
The third requisite should not be taken to mean that the question of constitutionality must be raised immediately
after the execution of the state action complained of. That the question of constitutionality has not been raised
before is not a valid reason for refusing to allow it to be raised later.73 A contrary rule would mean that a law,
otherwise unconstitutional, would lapse into constitutionality by the mere failure of the proper party to promptly file a
case to challenge the same.
PROPRIETY OF PROHIBITION AND MANDAMUS
Before the effectivity in July 1997 of the Revised Rules of Civil Procedure, Section 2 of Rule 65 read:
SEC. 2. Petition for prohibition. When the proceedings of any tribunal, corporation, board, or person, whether
exercising functions judicial or ministerial, are without or in excess of its or his jurisdiction, or with grave abuse of
discretion, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying
that judgment be rendered commanding the defendant to desist from further proceeding in the action or matter
specified therein.
Prohibition is a preventive remedy.74 It seeks a judgment ordering the defendant to desist from continuing with the
commission of an act perceived to be illegal.75
The petition for prohibition at bar is thus an appropriate remedy. While the execution of the contract itself may be fait
accompli, its implementation is not. Public respondents, in behalf of the Government, have obligations to fulfill under
said contract. Petitioners seek to prevent them from fulfilling such obligations on the theory that the contract is
unconstitutional and, therefore, void.
The propriety of a petition for prohibition being upheld, discussion of the propriety of the mandamus aspect of the
petition is rendered unnecessary.
HIERARCHY OF COURTS
The contention that the filing of this petition violated the rule on hierarchy of courts does not likewise lie. The rule
has been explained thus:
Between two courts of concurrent original jurisdiction, it is the lower court that should initially pass upon the issues
of a case. That way, as a particular case goes through the hierarchy of courts, it is shorn of all but the important
legal issues or those of first impression, which are the proper subject of attention of the appellate court. This is a
procedural rule borne of experience and adopted to improve the administration of justice.
This Court has consistently enjoined litigants to respect the hierarchy of courts. Although this Court has concurrent
jurisdiction with the Regional Trial Courts and the Court of Appeals to issue writs of certiorari, prohibition,
mandamus, quo warranto, habeas corpus and injunction, such concurrence does not give a party unrestricted
freedom of choice of court forum. The resort to this Court's primary jurisdiction to issue said writs shall be allowed
only where the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling
circumstances justify such invocation. We held in People v. Cuaresma that:
A becoming regard for judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs
against first level ("inferior") courts should be filed with the Regional Trial Court, and those against the latter, with the
Court of Appeals. A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be
allowed only where there are special and important reasons therefor, clearly and specifically set out in the petition.
This is established policy. It is a policy necessary to prevent inordinate demands upon the Court's time and attention
which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the
Court's docket x x x.76 [Emphasis supplied.]
The repercussions of the issues in this case on the Philippine mining industry, if not the national economy, as well
as the novelty thereof, constitute exceptional and compelling circumstances to justify resort to this Court in the first
instance.

In all events, this Court has the discretion to take cognizance of a suit which does not satisfy the requirements of an
actual case or legal standing when paramount public interest is involved.77 When the issues raised are of paramount
importance to the public, this Court may brush aside technicalities of procedure.78
II
Petitioners contend that E.O. No. 279 did not take effect because its supposed date of effectivity came after
President Aquino had already lost her legislative powers under the Provisional Constitution.
And they likewise claim that the WMC FTAA, which was entered into pursuant to E.O. No. 279, violates Section 2,
Article XII of the Constitution because, among other reasons:
(1) It allows foreign-owned companies to extend more than mere financial or technical assistance to the
State in the exploitation, development, and utilization of minerals, petroleum, and other mineral oils, and
even permits foreign owned companies to "operate and manage mining activities."
(2) It allows foreign-owned companies to extend both technical and financial assistance, instead of "either
technical or financial assistance."
To appreciate the import of these issues, a visit to the history of the pertinent constitutional provision, the concepts
contained therein, and the laws enacted pursuant thereto, is in order.
Section 2, Article XII reads in full:
Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the
State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration,
development, and utilization of natural resources shall be under the full control and supervision of the State. The
State may directly undertake such activities or it may enter into co-production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned
by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more
than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for
irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may
be the measure and limit of the grant.
The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic
zone, and reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as
cooperative fish farming, with priority to subsistence fishermen and fish-workers in rivers, lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned corporations involving either technical or financial
assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils
according to the general terms and conditions provided by law, based on real contributions to the economic growth
and general welfare of the country. In such agreements, the State shall promote the development and use of local
scientific and technical resources.
The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty
days from its execution.
THE SPANISH REGIME AND THE REGALIAN DOCTRINE
The first sentence of Section 2 embodies the Regalian doctrine or jura regalia. Introduced by Spain into these
Islands, this feudal concept is based on the State's power of dominium, which is the capacity of the State to own or
acquire property.79
In its broad sense, the term "jura regalia" refers to royal rights, or those rights which the King has by virtue of his
prerogatives. In Spanish law, it refers to a right which the sovereign has over anything in which a subject has a right
of property or propriedad. These were rights enjoyed during feudal times by the king as the sovereign.
The theory of the feudal system was that title to all lands was originally held by the King, and while the use of lands
was granted out to others who were permitted to hold them under certain conditions, the King theoretically retained
the title. By fiction of law, the King was regarded as the original proprietor of all lands, and the true and only source
of title, and from him all lands were held. The theory of jura regalia was therefore nothing more than a natural fruit of
conquest.80
The Philippines having passed to Spain by virtue of discovery and conquest,81 earlier Spanish decrees declared that
"all lands were held from the Crown."82
The Regalian doctrine extends not only to land but also to "all natural wealth that may be found in the bowels of the
earth."83 Spain, in particular, recognized the unique value of natural resources, viewing them, especially minerals, as
an abundant source of revenue to finance its wars against other nations.84 Mining laws during the Spanish regime
reflected this perspective.85
THE AMERICAN OCCUPATION AND THE CONCESSION REGIME
By the Treaty of Paris of December 10, 1898, Spain ceded "the archipelago known as the Philippine Islands" to the
United States. The Philippines was hence governed by means of organic acts that were in the nature of charters
serving as a Constitution of the occupied territory from 1900 to 1935.86 Among the principal organic acts of the
Philippines was the Act of Congress of July 1, 1902, more commonly known as the Philippine Bill of 1902, through
which the United States Congress assumed the administration of the Philippine Islands.87 Section 20 of said Bill
reserved the disposition of mineral lands of the public domain from sale. Section 21 thereof allowed the free and
open exploration, occupation and purchase of mineral deposits not only to citizens of the Philippine Islands but to
those of the United States as well:
Sec. 21. That all valuable mineral deposits in public lands in the Philippine Islands, both surveyed and unsurveyed,
are hereby declared to be free and open to exploration, occupation and purchase, and the land in which they are
found, to occupation and purchase, by citizens of the United States or of said Islands: Provided, That when on any
lands in said Islands entered and occupied as agricultural lands under the provisions of this Act, but not patented,
mineral deposits have been found, the working of such mineral deposits is forbidden until the person, association, or
corporation who or which has entered and is occupying such lands shall have paid to the Government of said

Islands such additional sum or sums as will make the total amount paid for the mineral claim or claims in which said
deposits are located equal to the amount charged by the Government for the same as mineral claims.
Unlike Spain, the United States considered natural resources as a source of wealth for its nationals and saw fit to
allow both Filipino and American citizens to explore and exploit minerals in public lands, and to grant patents to
private mineral lands.88 A person who acquired ownership over a parcel of private mineral land pursuant to the laws
then prevailing could exclude other persons, even the State, from exploiting minerals within his property.89Thus,
earlier jurisprudence90 held that:
A valid and subsisting location of mineral land, made and kept up in accordance with the provisions of the statutes
of the United States, has the effect of a grant by the United States of the present and exclusive possession of the
lands located, and this exclusive right of possession and enjoyment continues during the entire life of the location. x
x x.
x x x.
The discovery of minerals in the ground by one who has a valid mineral location perfects his claim and his location
not only against third persons, but also against the Government. x x x. [Italics in the original.]
The Regalian doctrine and the American system, therefore, differ in one essential respect. Under the Regalian
theory, mineral rights are not included in a grant of land by the state; under the American doctrine, mineral rights are
included in a grant of land by the government.91
Section 21 also made possible the concession (frequently styled "permit", license" or "lease") 92 system.93 This was
the traditional regime imposed by the colonial administrators for the exploitation of natural resources in the
extractive sector (petroleum, hard minerals, timber, etc.).94
Under the concession system, the concessionaire makes a direct equity investment for the purpose of exploiting a
particular natural resource within a given area.95 Thus, the concession amounts to complete control by the
concessionaire over the country's natural resource, for it is given exclusive and plenary rights to exploit a particular
resource at the point of extraction.96 In consideration for the right to exploit a natural resource, the concessionaire
either pays rent or royalty, which is a fixed percentage of the gross proceeds.97
Later statutory enactments by the legislative bodies set up in the Philippines adopted the contractual framework of
the concession.98 For instance, Act No. 2932,99 approved on August 31, 1920, which provided for the exploration,
location, and lease of lands containing petroleum and other mineral oils and gas in the Philippines, and Act No.
2719,100 approved on May 14, 1917, which provided for the leasing and development of coal lands in the Philippines,
both utilized the concession system.101
THE 1935 CONSTITUTION AND THE NATIONALIZATION OF NATURAL RESOURCES
By the Act of United States Congress of March 24, 1934, popularly known as the Tydings-McDuffie Law, the People
of the Philippine Islands were authorized to adopt a constitution.102 On July 30, 1934, the Constitutional Convention
met for the purpose of drafting a constitution, and the Constitution subsequently drafted was approved by the
Convention on February 8, 1935.103 The Constitution was submitted to the President of the United States on March
18, 1935.104 On March 23, 1935, the President of the United States certified that the Constitution conformed
substantially with the provisions of the Act of Congress approved on March 24, 1934.105On May 14, 1935, the
Constitution was ratified by the Filipino people.106
The 1935 Constitution adopted the Regalian doctrine, declaring all natural resources of the Philippines, including
mineral lands and minerals, to be property belonging to the State.107 As adopted in a republican system, the
medieval concept of jura regalia is stripped of royal overtones and ownership of the land is vested in the State.108
Section 1, Article XIII, on Conservation and Utilization of Natural Resources, of the 1935 Constitution provided:
SECTION 1. All agricultural, timber, and mineral lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, and other natural resources of the
Philippines belong to the State, and their disposition, exploitation, development, or utilization shall be limited
to citizens of the Philippines, or to corporations or associations at least sixty per centum of the capital of
which is owned by such citizens, subject to any existing right, grant, lease, or concession at the time of the
inauguration of the Government established under this Constitution. Natural resources, with the exception of
public agricultural land, shall not be alienated, and no license, concession, or lease for the exploitation,
development, or utilization of any of the natural resources shall be granted for a period exceeding twentyfive years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, in which cases beneficial use may be the measure and the limit of the grant.
The nationalization and conservation of the natural resources of the country was one of the fixed and dominating
objectives of the 1935 Constitutional Convention.109 One delegate relates:
There was an overwhelming sentiment in the Convention in favor of the principle of state ownership of natural
resources and the adoption of the Regalian doctrine. State ownership of natural resources was seen as a necessary
starting point to secure recognition of the state's power to control their disposition, exploitation, development, or
utilization. The delegates of the Constitutional Convention very well knew that the concept of State ownership of
land and natural resources was introduced by the Spaniards, however, they were not certain whether it was
continued and applied by the Americans. To remove all doubts, the Convention approved the provision in the
Constitution affirming the Regalian doctrine.
The adoption of the principle of state ownership of the natural resources and of the Regalian doctrine was
considered to be a necessary starting point for the plan of nationalizing and conserving the natural resources of the
country. For with the establishment of the principle of state ownership of the natural resources, it would not be hard
to secure the recognition of the power of the State to control their disposition, exploitation, development or
utilization.110
The nationalization of the natural resources was intended (1) to insure their conservation for Filipino posterity; (2) to
serve as an instrument of national defense, helping prevent the extension to the country of foreign control through
peaceful economic penetration; and (3) to avoid making the Philippines a source of international conflicts with the
consequent danger to its internal security and independence.111

The same Section 1, Article XIII also adopted the concession system, expressly permitting the State to grant
licenses, concessions, or leases for the exploitation, development, or utilization of any of the natural resources.
Grants, however, were limited to Filipinos or entities at least 60% of the capital of which is owned by Filipinos.
The swell of nationalism that suffused the 1935 Constitution was radically diluted when on November 1946, the
Parity Amendment, which came in the form of an "Ordinance Appended to the Constitution," was ratified in a
plebiscite.112 The Amendment extended, from July 4, 1946 to July 3, 1974, the right to utilize and exploit our natural
resources to citizens of the United States and business enterprises owned or controlled, directly or indirectly, by
citizens of the United States:113
Notwithstanding the provision of section one, Article Thirteen, and section eight, Article Fourteen, of the foregoing
Constitution, during the effectivity of the Executive Agreement entered into by the President of the Philippines with
the President of the United States on the fourth of July, nineteen hundred and forty-six, pursuant to the provisions of
Commonwealth Act Numbered Seven hundred and thirty-three, but in no case to extend beyond the third of July,
nineteen hundred and seventy-four, the disposition, exploitation, development, and utilization of all agricultural,
timber, and mineral lands of the public domain, waters, minerals, coals, petroleum, and other mineral oils, all forces
and sources of potential energy, and other natural resources of the Philippines, and the operation of public utilities,
shall, if open to any person, be open to citizens of the United States and to all forms of business enterprise owned
or controlled, directly or indirectly, by citizens of the United States in the same manner as to, and under the same
conditions imposed upon, citizens of the Philippines or corporations or associations owned or controlled by citizens
of the Philippines.
The Parity Amendment was subsequently modified by the 1954 Revised Trade Agreement, also known as the
Laurel-Langley Agreement, embodied in Republic Act No. 1355.114
THE PETROLEUM ACT OF 1949 AND THE CONCESSION SYSTEM
In the meantime, Republic Act No. 387,115 also known as the Petroleum Act of 1949, was approved on June 18,
1949.
The Petroleum Act of 1949 employed the concession system for the exploitation of the nation's petroleum
resources. Among the kinds of concessions it sanctioned were exploration and exploitation concessions, which
respectively granted to the concessionaire the exclusive right to explore for116 or develop117 petroleum within
specified areas.
Concessions may be granted only to duly qualified persons118 who have sufficient finances, organization, resources,
technical competence, and skills necessary to conduct the operations to be undertaken.119
Nevertheless, the Government reserved the right to undertake such work itself.120 This proceeded from the theory
that all natural deposits or occurrences of petroleum or natural gas in public and/or private lands in the Philippines
belong to the State.121 Exploration and exploitation concessions did not confer upon the concessionaire ownership
over the petroleum lands and petroleum deposits.122 However, they did grant concessionaires the right to explore,
develop, exploit, and utilize them for the period and under the conditions determined by the law.123
Concessions were granted at the complete risk of the concessionaire; the Government did not guarantee the
existence of petroleum or undertake, in any case, title warranty.124
Concessionaires were required to submit information as maybe required by the Secretary of Agriculture and Natural
Resources, including reports of geological and geophysical examinations, as well as production
reports.125 Exploration126 and exploitation127 concessionaires were also required to submit work programs.
Exploitation concessionaires, in particular, were obliged to pay an annual exploitation tax, 128 the object of which is to
induce the concessionaire to actually produce petroleum, and not simply to sit on the concession without developing
or exploiting it.129 These concessionaires were also bound to pay the Government royalty, which was not less than
12% of the petroleum produced and saved, less that consumed in the operations of the concessionaire. 130 Under
Article 66, R.A. No. 387, the exploitation tax may be credited against the royalties so that if the concessionaire shall
be actually producing enough oil, it would not actually be paying the exploitation tax.131
Failure to pay the annual exploitation tax for two consecutive years,132 or the royalty due to the Government within
one year from the date it becomes due,133 constituted grounds for the cancellation of the concession. In case of
delay in the payment of the taxes or royalty imposed by the law or by the concession, a surcharge of 1% per month
is exacted until the same are paid.134
As a rule, title rights to all equipment and structures that the concessionaire placed on the land belong to the
exploration or exploitation concessionaire.135 Upon termination of such concession, the concessionaire had a right to
remove the same.136
The Secretary of Agriculture and Natural Resources was tasked with carrying out the provisions of the law, through
the Director of Mines, who acted under the Secretary's immediate supervision and control.137 The Act granted the
Secretary the authority to inspect any operation of the concessionaire and to examine all the books and accounts
pertaining to operations or conditions related to payment of taxes and royalties.138
The same law authorized the Secretary to create an Administration Unit and a Technical Board.139 The
Administration Unit was charged, inter alia, with the enforcement of the provisions of the law.140 The Technical Board
had, among other functions, the duty to check on the performance of concessionaires and to determine whether the
obligations imposed by the Act and its implementing regulations were being complied with.141
Victorio Mario A. Dimagiba, Chief Legal Officer of the Bureau of Energy Development, analyzed the benefits and
drawbacks of the concession system insofar as it applied to the petroleum industry:
Advantages of Concession. Whether it emphasizes income tax or royalty, the most positive aspect of the
concession system is that the State's financial involvement is virtually risk free and administration is simple and
comparatively low in cost. Furthermore, if there is a competitive allocation of the resource leading to substantial
bonuses and/or greater royalty coupled with a relatively high level of taxation, revenue accruing to the State under
the concession system may compare favorably with other financial arrangements.
Disadvantages of Concession. There are, however, major negative aspects to this system. Because the
Government's role in the traditional concession is passive, it is at a distinct disadvantage in managing and
developing policy for the nation's petroleum resource. This is true for several reasons. First, even though most
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concession agreements contain covenants requiring diligence in operations and production, this establishes only an
indirect and passive control of the host country in resource development. Second, and more importantly, the fact
that the host country does not directly participate in resource management decisions inhibits its ability to train and
employ its nationals in petroleum development. This factor could delay or prevent the country from effectively
engaging in the development of its resources. Lastly, a direct role in management is usually necessary in order to
obtain a knowledge of the international petroleum industry which is important to an appreciation of the host country's
resources in relation to those of other countries.142
Other liabilities of the system have also been noted:
x x x there are functional implications which give the concessionaire great economic power arising from its exclusive
equity holding. This includes, first, appropriation of the returns of the undertaking, subject to a modest royalty;
second, exclusive management of the project; third, control of production of the natural resource, such as volume of
production, expansion, research and development; and fourth, exclusive responsibility for downstream operations,
like processing, marketing, and distribution. In short, even if nominally, the state is the sovereign and owner of the
natural resource being exploited, it has been shorn of all elements of control over such natural resource because of
the exclusive nature of the contractual regime of the concession. The concession system, investing as it does
ownership of natural resources, constitutes a consistent inconsistency with the principle embodied in our
Constitution that natural resources belong to the state and shall not be alienated, not to mention the fact that the
concession was the bedrock of the colonial system in the exploitation of natural resources.143
Eventually, the concession system failed for reasons explained by Dimagiba:
Notwithstanding the good intentions of the Petroleum Act of 1949, the concession system could not have properly
spurred sustained oil exploration activities in the country, since it assumed that such a capital-intensive, high risk
venture could be successfully undertaken by a single individual or a small company. In effect, concessionaires'
funds were easily exhausted. Moreover, since the concession system practically closed its doors to interested
foreign investors, local capital was stretched to the limits. The old system also failed to consider the highly
sophisticated technology and expertise required, which would be available only to multinational companies.144
A shift to a new regime for the development of natural resources thus seemed imminent.
PRESIDENTIAL DECREE NO. 87, THE 1973 CONSTITUTION AND THE SERVICE CONTRACT SYSTEM
The promulgation on December 31, 1972 of Presidential Decree No. 87,145 otherwise known as The Oil Exploration
and Development Act of 1972 signaled such a transformation. P.D. No. 87 permitted the government to explore for
and produce indigenous petroleum through "service contracts."146
"Service contracts" is a term that assumes varying meanings to different people, and it has carried many names in
different countries, like "work contracts" in Indonesia, "concession agreements" in Africa, "production-sharing
agreements" in the Middle East, and "participation agreements" in Latin America.147 A functional definition of "service
contracts" in the Philippines is provided as follows:
A service contract is a contractual arrangement for engaging in the exploitation and development of petroleum,
mineral, energy, land and other natural resources by which a government or its agency, or a private person granted
a right or privilege by the government authorizes the other party (service contractor) to engage or participate in the
exercise of such right or the enjoyment of the privilege, in that the latter provides financial or technical resources,
undertakes the exploitation or production of a given resource, or directly manages the productive enterprise,
operations of the exploration and exploitation of the resources or the disposition of marketing or resources.148
In a service contract under P.D. No. 87, service and technology are furnished by the service contractor for which it
shall be entitled to the stipulated service fee.149 The contractor must be technically competent and financially
capable to undertake the operations required in the contract.150
Financing is supposed to be provided by the Government to which all petroleum produced belongs. 151 In case the
Government is unable to finance petroleum exploration operations, the contractor may furnish services, technology
and financing, and the proceeds of sale of the petroleum produced under the contract shall be the source of funds
for payment of the service fee and the operating expenses due the contractor.152 The contractor shall undertake,
manage and execute petroleum operations, subject to the government overseeing the management of the
operations.153 The contractor provides all necessary services and technology and the requisite financing, performs
the exploration work obligations, and assumes all exploration risks such that if no petroleum is produced, it will not
be entitled to reimbursement.154 Once petroleum in commercial quantity is discovered, the contractor shall operate
the field on behalf of the government.155
P.D. No. 87 prescribed minimum terms and conditions for every service contract.156 It also granted the contractor
certain privileges, including exemption from taxes and payment of tariff duties, 157 and permitted the repatriation of
capital and retention of profits abroad.158
Ostensibly, the service contract system had certain advantages over the concession regime.159 It has been opined,
though, that, in the Philippines, our concept of a service contract, at least in the petroleum industry, was basically a
concession regime with a production-sharing element.160
On January 17, 1973, then President Ferdinand E. Marcos proclaimed the ratification of a new Constitution. 161Article
XIV on the National Economy and Patrimony contained provisions similar to the 1935 Constitution with regard to
Filipino participation in the nation's natural resources. Section 8, Article XIV thereof provides:
Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential
energy, fisheries, wildlife, and other natural resources of the Philippines belong to the State. With the exception of
agricultural, industrial or commercial, residential and resettlement lands of the public domain, natural resources shall
not be alienated, and no license, concession, or lease for the exploration, development, exploitation, or utilization of
any of the natural resources shall be granted for a period exceeding twenty-five years, renewable for not more than
twenty-five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, in which cases beneficial use may be the measure and the limit of the grant.
While Section 9 of the same Article maintained the Filipino-only policy in the enjoyment of natural resources, it also
allowed Filipinos, upon authority of the Batasang Pambansa, to enter into service contracts with any person or entity
for the exploration or utilization of natural resources.

Sec. 9. The disposition, exploration, development, exploitation, or utilization of any of the natural resources of the
Philippines shall be limited to citizens, or to corporations or associations at least sixty per centum of which is owned
by such citizens. The Batasang Pambansa, in the national interest, may allow such citizens, corporations or
associations to enter into service contracts for financial, technical, management, or other forms of assistance with
any person or entity for the exploration, or utilization of any of the natural resources. Existing valid and binding
service contracts for financial, technical, management, or other forms of assistance are hereby recognized as such.
[Emphasis supplied.]
The concept of service contracts, according to one delegate, was borrowed from the methods followed by India,
Pakistan and especially Indonesia in the exploration of petroleum and mineral oils.162 The provision allowing such
contracts, according to another, was intended to "enhance the proper development of our natural resources since
Filipino citizens lack the needed capital and technical know-how which are essential in the proper exploration,
development and exploitation of the natural resources of the country."163
The original idea was to authorize the government, not private entities, to enter into service contracts with foreign
entities.164 As finally approved, however, a citizen or private entity could be allowed by the National Assembly to
enter into such service contract.165 The prior approval of the National Assembly was deemed sufficient to protect the
national interest.166 Notably, none of the laws allowing service contracts were passed by the Batasang Pambansa.
Indeed, all of them were enacted by presidential decree.
On March 13, 1973, shortly after the ratification of the new Constitution, the President promulgated Presidential
Decree No. 151.167 The law allowed Filipino citizens or entities which have acquired lands of the public domain or
which own, hold or control such lands to enter into service contracts for financial, technical, management or other
forms of assistance with any foreign persons or entity for the exploration, development, exploitation or utilization of
said lands.168
Presidential Decree No. 463,169 also known as The Mineral Resources Development Decree of 1974, was enacted
on May 17, 1974. Section 44 of the decree, as amended, provided that a lessee of a mining claim may enter into a
service contract with a qualified domestic or foreign contractor for the exploration, development and exploitation of
his claims and the processing and marketing of the product thereof.
Presidential Decree No. 704170 (The Fisheries Decree of 1975), approved on May 16, 1975, allowed Filipinos
engaged in commercial fishing to enter into contracts for financial, technical or other forms of assistance with any
foreign person, corporation or entity for the production, storage, marketing and processing of fish and fishery/aquatic
products.171
Presidential Decree No. 705172 (The Revised Forestry Code of the Philippines), approved on May 19, 1975, allowed
"forest products licensees, lessees, or permitees to enter into service contracts for financial, technical, management,
or other forms of assistance . . . with any foreign person or entity for the exploration, development, exploitation or
utilization of the forest resources."173
Yet another law allowing service contracts, this time for geothermal resources, was Presidential Decree No.
1442,174 which was signed into law on June 11, 1978. Section 1 thereof authorized the Government to enter into
service contracts for the exploration, exploitation and development of geothermal resources with a foreign contractor
who must be technically and financially capable of undertaking the operations required in the service contract.
Thus, virtually the entire range of the country's natural resources from petroleum and minerals to geothermal
energy, from public lands and forest resources to fishery products was well covered by apparent legal authority to
engage in the direct participation or involvement of foreign persons or corporations (otherwise disqualified) in the
exploration and utilization of natural resources through service contracts.175
THE 1987 CONSTITUTION AND TECHNICAL OR FINANCIAL ASSISTANCE AGREEMENTS
After the February 1986 Edsa Revolution, Corazon C. Aquino took the reins of power under a revolutionary
government. On March 25, 1986, President Aquino issued Proclamation No. 3,176 promulgating the Provisional
Constitution, more popularly referred to as the Freedom Constitution. By authority of the same Proclamation, the
President created a Constitutional Commission (CONCOM) to draft a new constitution, which took effect on the date
of its ratification on February 2, 1987.177
The 1987 Constitution retained the Regalian doctrine. The first sentence of Section 2, Article XII states: "All lands of
the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries,
forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State."
Like the 1935 and 1973 Constitutions before it, the 1987 Constitution, in the second sentence of the same provision,
prohibits the alienation of natural resources, except agricultural lands.
The third sentence of the same paragraph is new: "The exploration, development and utilization of natural resources
shall be under the full control and supervision of the State." The constitutional policy of the State's "full control and
supervision" over natural resources proceeds from the concept of jura regalia, as well as the recognition of the
importance of the country's natural resources, not only for national economic development, but also for its security
and national defense.178 Under this provision, the State assumes "a more dynamic role" in the exploration,
development and utilization of natural resources.179
Conspicuously absent in Section 2 is the provision in the 1935 and 1973 Constitutions authorizing the State to grant
licenses, concessions, or leases for the exploration, exploitation, development, or utilization of natural resources. By
such omission, the utilization of inalienable lands of public domain through "license, concession or lease" is no
longer allowed under the 1987 Constitution.180
Having omitted the provision on the concession system, Section 2 proceeded to introduce "unfamiliar language":181
The State may directly undertake such activities or it may enter into co-production, joint venture, or productionsharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital
is owned by such citizens.
Consonant with the State's "full supervision and control" over natural resources, Section 2 offers the State two
"options."182 One, the State may directly undertake these activities itself; or two, it may enter into co-production, joint
venture, or production-sharing agreements with Filipino citizens, or entities at least 60% of whose capital is owned
by such citizens.

A third option is found in the third paragraph of the same section:

The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as
cooperative fish farming, with priority to subsistence fishermen and fish-workers in rivers, lakes, bays, and lagoons.
While the second and third options are limited only to Filipino citizens or, in the case of the former, to corporations or
associations at least 60% of the capital of which is owned by Filipinos, a fourth allows the participation of foreignowned corporations. The fourth and fifth paragraphs of Section 2 provide:
The President may enter into agreements with foreign-owned corporations involving either technical or financial
assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils
according to the general terms and conditions provided by law, based on real contributions to the economic growth
and general welfare of the country. In such agreements, the State shall promote the development and use of local
scientific and technical resources.
The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty
days from its execution.
Although Section 2 sanctions the participation of foreign-owned corporations in the exploration, development, and
utilization of natural resources, it imposes certain limitations or conditions to agreements with such corporations.
First, the parties to FTAAs. Only the President, in behalf of the State, may enter into these agreements, and
only with corporations. By contrast, under the 1973 Constitution, a Filipino citizen, corporation or association
may enter into a service contract with a "foreign person or entity."
Second, the size of the activities: only large-scale exploration, development, and utilization is allowed. The
term "large-scale usually refers to very capital-intensive activities."183
Third, the natural resources subject of the activities is restricted to minerals, petroleum and other mineral
oils, the intent being to limit service contracts to those areas where Filipino capital may not be sufficient.184
Fourth, consistency with the provisions of statute. The agreements must be in accordance with the terms
and conditions provided by law.
Fifth, Section 2 prescribes certain standards for entering into such agreements. The agreements must be
based on real contributions to economic growth and general welfare of the country.
Sixth, the agreements must contain rudimentary stipulations for the promotion of the development and use
of local scientific and technical resources.
Seventh, the notification requirement. The President shall notify Congress of every financial or technical
assistance agreement entered into within thirty days from its execution.
Finally, the scope of the agreements. While the 1973 Constitution referred to "service contracts for financial,
technical, management, or other forms of assistance" the 1987 Constitution provides for "agreements. . .
involving either financial or technical assistance." It bears noting that the phrases "service contracts" and
"management or other forms of assistance" in the earlier constitution have been omitted.
By virtue of her legislative powers under the Provisional Constitution,185 President Aquino, on July 10, 1987, signed
into law E.O. No. 211 prescribing the interim procedures in the processing and approval of applications for the
exploration, development and utilization of minerals. The omission in the 1987 Constitution of the term "service
contracts" notwithstanding, the said E.O. still referred to them in Section 2 thereof:
Sec. 2. Applications for the exploration, development and utilization of mineral resources, including renewal
applications and applications for approval of operating agreements and mining service contracts, shall be accepted
and processed and may be approved x x x. [Emphasis supplied.]
The same law provided in its Section 3 that the "processing, evaluation and approval of all mining applications . . .
operating agreements and service contracts . . . shall be governed by Presidential Decree No. 463, as amended,
other existing mining laws, and their implementing rules and regulations. . . ."
As earlier stated, on the 25th also of July 1987, the President issued E.O. No. 279 by authority of which the subject
WMCP FTAA was executed on March 30, 1995.
On March 3, 1995, President Ramos signed into law R.A. No. 7942. Section 15 thereof declares that the Act "shall
govern the exploration, development, utilization, and processing of all mineral resources." Such declaration
notwithstanding, R.A. No. 7942 does not actually cover all the modes through which the State may undertake the
exploration, development, and utilization of natural resources.
The State, being the owner of the natural resources, is accorded the primary power and responsibility in the
exploration, development and utilization thereof. As such, it may undertake these activities through four modes:
The State may directly undertake such activities.
(2) The State may enter into co-production, joint venture or production-sharing agreements with Filipino
citizens or qualified corporations.
(3) Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens.
(4) For the large-scale exploration, development and utilization of minerals, petroleum and other mineral oils,
the President may enter into agreements with foreign-owned corporations involving technical or financial
assistance.186
Except to charge the Mines and Geosciences Bureau of the DENR with performing researches and surveys,187and a
passing mention of government-owned or controlled corporations,188 R.A. No. 7942 does not specify how the State
should go about the first mode. The third mode, on the other hand, is governed by Republic Act No. 7076 189 (the
People's Small-Scale Mining Act of 1991) and other pertinent laws.190 R.A. No. 7942 primarily concerns itself with
the second and fourth modes.
Mineral production sharing, co-production and joint venture agreements are collectively classified by R.A. No. 7942
as "mineral agreements."191 The Government participates the least in a mineral production sharing agreement
(MPSA). In an MPSA, the Government grants the contractor192 the exclusive right to conduct mining operations
within a contract area193 and shares in the gross output.194 The MPSA contractor provides the financing, technology,
management and personnel necessary for the agreement's implementation.195 The total government share in an
MPSA is the excise tax on mineral products under Republic Act No. 7729,196 amending Section 151(a) of the
National Internal Revenue Code, as amended.197

In a co-production agreement (CA),198 the Government provides inputs to the mining operations other than the
mineral resource,199 while in a joint venture agreement (JVA), where the Government enjoys the greatest
participation, the Government and the JVA contractor organize a company with both parties having equity
shares.200 Aside from earnings in equity, the Government in a JVA is also entitled to a share in the gross
output.201 The Government may enter into a CA202 or JVA203 with one or more contractors. The Government's share
in a CA or JVA is set out in Section 81 of the law:
The share of the Government in co-production and joint venture agreements shall be negotiated by the Government
and the contractor taking into consideration the: (a) capital investment of the project, (b) the risks involved, (c)
contribution of the project to the economy, and (d) other factors that will provide for a fair and equitable sharing
between the Government and the contractor. The Government shall also be entitled to compensations for its other
contributions which shall be agreed upon by the parties, and shall consist, among other things, the contractor's
income tax, excise tax, special allowance, withholding tax due from the contractor's foreign stockholders arising
from dividend or interest payments to the said foreign stockholders, in case of a foreign national and all such other
taxes, duties and fees as provided for under existing laws.
All mineral agreements grant the respective contractors the exclusive right to conduct mining operations and to
extract all mineral resources found in the contract area.204 A "qualified person" may enter into any of the mineral
agreements with the Government.205 A "qualified person" is
any citizen of the Philippines with capacity to contract, or a corporation, partnership, association, or cooperative
organized or authorized for the purpose of engaging in mining, with technical and financial capability to undertake
mineral resources development and duly registered in accordance with law at least sixty per centum (60%) of the
capital of which is owned by citizens of the Philippines x x x.206
The fourth mode involves "financial or technical assistance agreements." An FTAA is defined as "a contract
involving financial or technical assistance for large-scale exploration, development, and utilization of natural
resources."207 Any qualified person with technical and financial capability to undertake large-scale exploration,
development, and utilization of natural resources in the Philippines may enter into such agreement directly with the
Government through the DENR.208 For the purpose of granting an FTAA, a legally organized foreign-owned
corporation (any corporation, partnership, association, or cooperative duly registered in accordance with law in
which less than 50% of the capital is owned by Filipino citizens)209 is deemed a "qualified person."210
Other than the difference in contractors' qualifications, the principal distinction between mineral agreements and
FTAAs is the maximum contract area to which a qualified person may hold or be granted.211 "Large-scale" under
R.A. No. 7942 is determined by the size of the contract area, as opposed to the amount invested (US
$50,000,000.00), which was the standard under E.O. 279.
Like a CA or a JVA, an FTAA is subject to negotiation.212 The Government's contributions, in the form of taxes, in an
FTAA is identical to its contributions in the two mineral agreements, save that in an FTAA:
The collection of Government share in financial or technical assistance agreement shall commence after the
financial or technical assistance agreement contractor has fully recovered its pre-operating expenses, exploration,
and development expenditures, inclusive.213
III
Having examined the history of the constitutional provision and statutes enacted pursuant thereto, a consideration of
the substantive issues presented by the petition is now in order.
THE EFFECTIVITY OF EXECUTIVE ORDER NO. 279
Petitioners argue that E.O. No. 279, the law in force when the WMC FTAA was executed, did not come into effect.
E.O. No. 279 was signed into law by then President Aquino on July 25, 1987, two days before the opening of
Congress on July 27, 1987.214 Section 8 of the E.O. states that the same "shall take effect immediately." This
provision, according to petitioners, runs counter to Section 1 of E.O. No. 200,215 which provides:
SECTION 1. Laws shall take effect after fifteen days following the completion of their publication either in the Official
Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided.216[Emphasis
supplied.]
On that premise, petitioners contend that E.O. No. 279 could have only taken effect fifteen days after its publication
at which time Congress had already convened and the President's power to legislate had ceased.
Respondents, on the other hand, counter that the validity of E.O. No. 279 was settled in Miners Association of the
Philippines v. Factoran, supra. This is of course incorrect for the issue in Miners Association was not the validity of
E.O. No. 279 but that of DAO Nos. 57 and 82 which were issued pursuant thereto.
Nevertheless, petitioners' contentions have no merit.
It bears noting that there is nothing in E.O. No. 200 that prevents a law from taking effect on a date other than
even before the 15-day period after its publication. Where a law provides for its own date of effectivity, such date
prevails over that prescribed by E.O. No. 200. Indeed, this is the very essence of the phrase "unless it is otherwise
provided" in Section 1 thereof. Section 1, E.O. No. 200, therefore, applies only when a statute does not provide for
its own date of effectivity.
What is mandatory under E.O. No. 200, and what due process requires, as this Court held in Taada v. Tuvera,217 is
the publication of the law for without such notice and publication, there would be no basis for the application of the
maxim "ignorantia legis n[eminem] excusat." It would be the height of injustice to punish or otherwise burden a
citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one.
While the effectivity clause of E.O. No. 279 does not require its publication, it is not a ground for its invalidation since
the Constitution, being "the fundamental, paramount and supreme law of the nation," is deemed written in the
law.218 Hence, the due process clause,219 which, so Taada held, mandates the publication of statutes, is read into
Section 8 of E.O. No. 279. Additionally, Section 1 of E.O. No. 200 which provides for publication "either in the
Official Gazette or in a newspaper of general circulation in the Philippines," finds suppletory application. It is
significant to note that E.O. No. 279 was actually published in the Official Gazette220 on August 3, 1987.
From a reading then of Section 8 of E.O. No. 279, Section 1 of E.O. No. 200, and Taada v. Tuvera, this Court
holds that E.O. No. 279 became effective immediately upon its publication in the Official Gazette on August 3, 1987.

That such effectivity took place after the convening of the first Congress is irrelevant. At the time President Aquino
issued E.O. No. 279 on July 25, 1987, she was still validly exercising legislative powers under the Provisional
Constitution.221 Article XVIII (Transitory Provisions) of the 1987 Constitution explicitly states:
Sec. 6. The incumbent President shall continue to exercise legislative powers until the first Congress is convened.
The convening of the first Congress merely precluded the exercise of legislative powers by President Aquino; it did
not prevent the effectivity of laws she had previously enacted.
There can be no question, therefore, that E.O. No. 279 is an effective, and a validly enacted, statute.
THE CONSTITUTIONALITY OF THE WMCP FTAA
Petitioners submit that, in accordance with the text of Section 2, Article XII of the Constitution, FTAAs should be
limited to "technical or financial assistance" only. They observe, however, that, contrary to the language of the
Constitution, the WMCP FTAA allows WMCP, a fully foreign-owned mining corporation, to extend more than mere
financial or technical assistance to the State, for it permits WMCP to manage and operate every aspect of the
mining activity. 222
Petitioners' submission is well-taken. It is a cardinal rule in the interpretation of constitutions that the instrument
must be so construed as to give effect to the intention of the people who adopted it.223 This intention is to be sought
in the constitution itself, and the apparent meaning of the words is to be taken as expressing it, except in cases
where that assumption would lead to absurdity, ambiguity, or contradiction.224 What the Constitution says according
to the text of the provision, therefore, compels acceptance and negates the power of the courts to alter it, based on
the postulate that the framers and the people mean what they say.225 Accordingly, following the literal text of the
Constitution, assistance accorded by foreign-owned corporations in the large-scale exploration, development, and
utilization of petroleum, minerals and mineral oils should be limited to "technical" or "financial" assistance only.
WMCP nevertheless submits that the word "technical" in the fourth paragraph of Section 2 of E.O. No. 279
encompasses a "broad number of possible services," perhaps, "scientific and/or technological in basis." 226 It thus
posits that it may also well include "the area of management or operations . . . so long as such assistance requires
specialized knowledge or skills, and are related to the exploration, development and utilization of mineral
resources."227
This Court is not persuaded. As priorly pointed out, the phrase "management or other forms of assistance" in the
1973 Constitution was deleted in the 1987 Constitution, which allows only "technical or financial assistance." Casus
omisus pro omisso habendus est. A person, object or thing omitted from an enumeration must be held to have been
omitted intentionally.228 As will be shown later, the management or operation of mining activities by foreign
contractors, which is the primary feature of service contracts, was precisely the evil that the drafters of the 1987
Constitution sought to eradicate.
Respondents insist that "agreements involving technical or financial assistance" is just another term for service
contracts. They contend that the proceedings of the CONCOM indicate "that although the terminology 'service
contract' was avoided [by the Constitution], the concept it represented was not." They add that "[t]he concept is
embodied in the phrase 'agreements involving financial or technical assistance.'"229 And point out how members of
the CONCOM referred to these agreements as "service contracts." For instance:
SR. TAN. Am I correct in thinking that the only difference between these future service contracts and the
past service contracts under Mr. Marcos is the general law to be enacted by the legislature and the
notification of Congress by the President? That is the only difference, is it not?
MR. VILLEGAS. That is right.
SR. TAN. So those are the safeguards[?]
MR. VILLEGAS. Yes. There was no law at all governing service contracts before.
SR. TAN. Thank you, Madam President.230 [Emphasis supplied.]
WMCP also cites the following statements of Commissioners Gascon, Garcia, Nolledo and Tadeo who
alluded to service contracts as they explained their respective votes in the approval of the draft Article:
MR. GASCON. Mr. Presiding Officer, I vote no primarily because of two reasons: One, the provision on
service contracts. I felt that if we would constitutionalize any provision on service contracts, this should
always be with the concurrence of Congress and not guided only by a general law to be promulgated by
Congress. x x x.231 [Emphasis supplied.]
x x x.
MR. GARCIA. Thank you.
I vote no. x x x.
Service contracts are given constitutional legitimization in Section 3, even when they have been proven to
be inimical to the interests of the nation, providing as they do the legal loophole for the exploitation of our
natural resources for the benefit of foreign interests. They constitute a serious negation of Filipino control on
the use and disposition of the nation's natural resources, especially with regard to those which are
nonrenewable.232 [Emphasis supplied.]
xxx
MR. NOLLEDO. While there are objectionable provisions in the Article on National Economy and Patrimony,
going over said provisions meticulously, setting aside prejudice and personalities will reveal that the article
contains a balanced set of provisions. I hope the forthcoming Congress will implement such provisions
taking into account that Filipinos should have real control over our economy and patrimony, and if foreign
equity is permitted, the same must be subordinated to the imperative demands of the national interest.
x x x.
It is also my understanding that service contracts involving foreign corporations or entities are resorted to
only when no Filipino enterprise or Filipino-controlled enterprise could possibly undertake the exploration or
exploitation of our natural resources and that compensation under such contracts cannot and should not
equal what should pertain to ownership of capital. In other words, the service contract should not be an
instrument to circumvent the basic provision, that the exploration and exploitation of natural resources
should be truly for the benefit of Filipinos.

Thank you, and I vote yes.233 [Emphasis supplied.]

x x x.
MR. TADEO. Nais ko lamang ipaliwanag ang aking boto.
Matapos suriin ang kalagayan ng Pilipinas, ang saligang suliranin, pangunahin ang salitang "imperyalismo."
Ang ibig sabihin nito ay ang sistema ng lipunang pinaghaharian ng iilang monopolyong kapitalista at ang
salitang "imperyalismo" ay buhay na buhay sa National Economy and Patrimony na nating ginawa. Sa
pamamagitan ng salitang "based on," naroroon na ang free trade sapagkat tayo ay mananatiling
tagapagluwas ng hilaw na sangkap at tagaangkat ng yaring produkto. Pangalawa, naroroon pa rin ang parity
rights, ang service contract, ang 60-40 equity sa natural resources. Habang naghihirap ang sambayanang
Pilipino, ginagalugad naman ng mga dayuhan ang ating likas na yaman. Kailan man ang Article on National
Economy and Patrimony ay hindi nagpaalis sa pagkaalipin ng ating ekonomiya sa kamay ng mga dayuhan.
Ang solusyon sa suliranin ng bansa ay dalawa lamang: ang pagpapatupad ng tunay na reporma sa lupa at
ang national industrialization. Ito ang tinatawag naming pagsikat ng araw sa Silangan. Ngunit ang mga
landlords and big businessmen at ang mga komprador ay nagsasabi na ang free trade na ito, ang
kahulugan para sa amin, ay ipinipilit sa ating sambayanan na ang araw ay sisikat sa Kanluran. Kailan man
hindi puwedeng sumikat ang araw sa Kanluran. I vote no.234 [Emphasis supplied.]
This Court is likewise not persuaded.
As earlier noted, the phrase "service contracts" has been deleted in the 1987 Constitution's Article on National
Economy and Patrimony. If the CONCOM intended to retain the concept of service contracts under the 1973
Constitution, it could have simply adopted the old terminology ("service contracts") instead of employing new and
unfamiliar terms ("agreements . . . involving either technical or financial assistance"). Such a difference between the
language of a provision in a revised constitution and that of a similar provision in the preceding constitution is
viewed as indicative of a difference in purpose.235 If, as respondents suggest, the concept of "technical or financial
assistance" agreements is identical to that of "service contracts," the CONCOM would not have bothered to fit the
same dog with a new collar. To uphold respondents' theory would reduce the first to a mere euphemism for the
second and render the change in phraseology meaningless.
An examination of the reason behind the change confirms that technical or financial assistance agreements are not
synonymous to service contracts.
[T]he Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption,
and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in light of the history
of the times, and the condition and circumstances under which the Constitution was framed. The object is to
ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose
sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason
and calculated to effect that purpose.236
As the following question of Commissioner Quesada and Commissioner Villegas' answer shows the drafters
intended to do away with service contracts which were used to circumvent the capitalization (60%-40%)
requirement:
MS. QUESADA. The 1973 Constitution used the words "service contracts." In this particular Section 3, is
there a safeguard against the possible control of foreign interests if the Filipinos go into coproduction with
them?
MR. VILLEGAS. Yes. In fact, the deletion of the phrase "service contracts" was our first attempt to avoid
some of the abuses in the past regime in the use of service contracts to go around the 60-40 arrangement.
The safeguard that has been introduced and this, of course can be refined is found in Section 3, lines 25
to 30, where Congress will have to concur with the President on any agreement entered into between a
foreign-owned corporation and the government involving technical or financial assistance for large-scale
exploration, development and utilization of natural resources.237 [Emphasis supplied.]
In a subsequent discussion, Commissioner Villegas allayed the fears of Commissioner Quesada regarding
the participation of foreign interests in Philippine natural resources, which was supposed to be restricted to
Filipinos.
MS. QUESADA. Another point of clarification is the phrase "and utilization of natural resources shall be
under the full control and supervision of the State." In the 1973 Constitution, this was limited to citizens of
the Philippines; but it was removed and substituted by "shall be under the full control and supervision of the
State." Was the concept changed so that these particular resources would be limited to citizens of the
Philippines? Or would these resources only be under the full control and supervision of the State; meaning,
noncitizens would have access to these natural resources? Is that the understanding?
MR. VILLEGAS. No, Mr. Vice-President, if the Commissioner reads the next sentence, it states:
Such activities may be directly undertaken by the State, or it may enter into co-production, joint venture, productionsharing agreements with Filipino citizens.
So we are still limiting it only to Filipino citizens.
x x x.
MS. QUESADA. Going back to Section 3, the section suggests that:
The exploration, development, and utilization of natural resources may be directly undertaken by the State, or it
may enter into co-production, joint venture or production-sharing agreement with . . . corporations or associations at
least sixty per cent of whose voting stock or controlling interest is owned by such citizens.
Lines 25 to 30, on the other hand, suggest that in the large-scale exploration, development and utilization of natural
resources, the President with the concurrence of Congress may enter into agreements with foreign-owned
corporations even for technical or financial assistance.
I wonder if this part of Section 3 contradicts the second part. I am raising this point for fear that foreign investors will
use their enormous capital resources to facilitate the actual exploitation or exploration, development and effective
disposition of our natural resources to the detriment of Filipino investors. I am not saying that we should not consider
borrowing money from foreign sources. What I refer to is that foreign interest should be allowed to participate only to

the extent that they lend us money and give us technical assistance with the appropriate government permit. In this
way, we can insure the enjoyment of our natural resources by our own people.
MR. VILLEGAS. Actually, the second provision about the President does not permit foreign investors to participate.
It is only technical or financial assistance they do not own anything but on conditions that have to be determined
by law with the concurrence of Congress. So, it is very restrictive.
If the Commissioner will remember, this removes the possibility for service contracts which we said yesterday were
avenues used in the previous regime to go around the 60-40 requirement.238 [Emphasis supplied.]
The present Chief Justice, then a member of the CONCOM, also referred to this limitation in scope in proposing an
amendment to the 60-40 requirement:
MR. DAVIDE. May I be allowed to explain the proposal?
MR. MAAMBONG. Subject to the three-minute rule, Madam President.
MR. DAVIDE. It will not take three minutes.
The Commission had just approved the Preamble. In the Preamble we clearly stated that the Filipino people are
sovereign and that one of the objectives for the creation or establishment of a government is to conserve and
develop the national patrimony. The implication is that the national patrimony or our natural resources are
exclusively reserved for the Filipino people. No alien must be allowed to enjoy, exploit and develop our natural
resources. As a matter of fact, that principle proceeds from the fact that our natural resources are gifts from God to
the Filipino people and it would be a breach of that special blessing from God if we will allow aliens to exploit our
natural resources.
I voted in favor of the Jamir proposal because it is not really exploitation that we granted to the alien corporations
but only for them to render financial or technical assistance. It is not for them to enjoy our natural resources. Madam
President, our natural resources are depleting; our population is increasing by leaps and bounds. Fifty years from
now, if we will allow these aliens to exploit our natural resources, there will be no more natural resources for the next
generations of Filipinos. It may last long if we will begin now. Since 1935 the aliens have been allowed to enjoy to a
certain extent the exploitation of our natural resources, and we became victims of foreign dominance and control.
The aliens are interested in coming to the Philippines because they would like to enjoy the bounty of nature
exclusively intended for Filipinos by God.
And so I appeal to all, for the sake of the future generations, that if we have to pray in the Preamble "to preserve
and develop the national patrimony for the sovereign Filipino people and for the generations to come," we must at
this time decide once and for all that our natural resources must be reserved only to Filipino citizens.
Thank you.239 [Emphasis supplied.]
The opinion of another member of the CONCOM is persuasive240 and leaves no doubt as to the intention of the
framers to eliminate service contracts altogether. He writes:
Paragraph 4 of Section 2 specifies large-scale, capital-intensive, highly technological undertakings for which the
President may enter into contracts with foreign-owned corporations, and enunciates strict conditions that should
govern such contracts. x x x.
This provision balances the need for foreign capital and technology with the need to maintain the national
sovereignty. It recognizes the fact that as long as Filipinos can formulate their own terms in their own territory, there
is no danger of relinquishing sovereignty to foreign interests.
Are service contracts allowed under the new Constitution? No. Under the new Constitution, foreign investors (fully
alien-owned) can NOT participate in Filipino enterprises except to provide: (1) Technical Assistance for highly
technical enterprises; and (2) Financial Assistance for large-scale enterprises.
The intent of this provision, as well as other provisions on foreign investments, is to prevent the practice (prevalent
in the Marcos government) of skirting the 60/40 equation using the cover of service contracts.241[Emphasis supplied.]
Furthermore, it appears that Proposed Resolution No. 496,242 which was the draft Article on National Economy and
Patrimony, adopted the concept of "agreements . . . involving either technical or financial assistance" contained in
the "Draft of the 1986 U.P. Law Constitution Project" (U.P. Law draft) which was taken into consideration during the
deliberation of the CONCOM.243 The former, as well as Article XII, as adopted, employed the same terminology, as
the comparative table below shows:
DRAFT OF THE UP LAW
CONSTITUTION PROJECT

PROPOSED RESOLUTION NO.

496 OF THE CONSTITUTIONAL
COMMISSION

ARTICLE XII OF
CONSTITUTION

THE

1987

Sec. 1. All lands of the public

domain, waters, minerals, coal,
petroleum and other mineral oils,
all forces of potential energy,
fisheries, flora and fauna and
other natural resources of the
Philippines are owned by the
State. With the exception of
agricultural lands, all other natural
resources shall not be alienated.
The exploration, development and
utilization of natural resources
shall be under the full control and
supervision of the State. Such

Sec. 3. All lands of the public

domain, waters, minerals, coal,
petroleum and other mineral oils,
all forces of potential energy,
fisheries, forests, flora and fauna,
and other natural resources are
owned by the State. With the
exception of agricultural lands, all
other natural resources shall not
be alienated. The exploration,
development, and utilization of
natural resources shall be under
the full control and supervision of
the State. Such activities may be

Sec. 2. All lands of the public

domain, waters, minerals, coal,
petroleum, and other mineral oils,
all forces of potential energy,
fisheries, forests or timber,
wildlife, flora and fauna, and other
natural resources are owned by
the State. With the exception of
agricultural lands, all other natural
resources shall not be alienated.
The exploration, development,
and utilization of natural resources
shall be under the full control and
supervision of the State. The

activities
may
be
directly
undertaken by the state, or it may
enter into co-production, joint
venture,
production
sharing
agreements with Filipino citizens
or corporations or associations
sixty per cent of whose voting
stock or controlling interest is
owned by such citizens for a
period of not more than twentyfive years, renewable for not more
than twenty-five years and under
such terms and conditions as may
be provided by law. In case as to
water rights for irrigation, water
supply, fisheries, or industrial
uses other than the development
of water power, beneficial use
may be the measure and limit of
the grant.
The National Assembly may by
law allow small scale utilization of
natural resources by Filipino
citizens.
The National Assembly, may, by
two-thirds vote of all its members
by special law provide the terms
and conditions under which a
foreign-owned corporation may
enter into agreements with the
government
involving either
technical
or
financial
assistance for
large-scale
exploration,
development,
or
utilization of natural resources.
[Emphasis supplied.]

directly undertaken by the State,

or it may enter into co-production,
joint venture, production-sharing
agreements with Filipino citizens
or corporations or associations at
least sixty per cent of whose
voting stock or controlling interest
is owned by such citizens. Such
agreements shall be for a period
of twenty-five years, renewable for
not more than twenty-five years,
and under such term and
conditions as may be provided by
law. In cases of water rights for
irrigation, water supply, fisheries
or industrial uses other than the
development for water power,
beneficial use may be the
measure and limit of the grant.
The Congress may by law allow
small-scale utilization of natural
resources by Filipino citizens, as
well as cooperative fish farming in
rivers, lakes, bays, and lagoons.
The
President
with
the
concurrence of Congress, by
special law, shall provide the
terms and conditions under which
a foreign-owned corporation may
enter into agreements with the
government
involving either
technical
or
financial
assistance for
large-scale
exploration, development, and
utilization of natural resources.
[Emphasis supplied.]

State may directly undertake such

activities or it may enter into coproduction, joint venture, or
production-sharing
agreements
with
Filipino
citizens,
or
corporations or associations at
least sixty per centum of whose
capital is owned by such citizens.
Such agreements may be for a
period not exceeding twenty-five
years, renewable for not more
than twenty-five years, and under
such terms and conditions as may
be provided by law. In case of
water rights for irrigation, water
supply, fisheries, or industrial
uses other than the development
of water power, beneficial use
may be the measure and limit of
the grant.
The State shall protect the
nation's marine wealth in its
archipelagic waters, territorial sea,
and exclusive economic zone,
and reserve its use and
enjoyment exclusively to Filipino
citizens.
The Congress may, by law, allow
small-scale utilization of natural
resources by Filipino citizens, as
well as cooperative fish farming,
with priority to subsistence
fishermen and fish-workers in
rivers, lakes, bays, and lagoons.
The President may enter into
agreements with foreign-owned
corporations
involving either
technical
or
financial
assistance for
large-scale
exploration, development, and
utilization of minerals, petroleum,
and other mineral oils according
to the general terms and
conditions provided by law, based
on real contributions to the
economic growth and general
welfare of the country. In such
agreements, the State shall
promote the development and use
of local scientific and technical
resources. [Emphasis supplied.]
The President shall notify the
Congress of every contract
entered into in accordance with
this provision, within thirty days
from its execution.

The insights of the proponents of the U.P. Law draft are, therefore, instructive in interpreting the phrase "technical or
financial assistance."
In his position paper entitled Service Contracts: Old Wine in New Bottles?, Professor Pacifico A. Agabin, who was a
member of the working group that prepared the U.P. Law draft, criticized service contracts for they "lodge exclusive
management and control of the enterprise to the service contractor, which is reminiscent of the old concession
regime. Thus, notwithstanding the provision of the Constitution that natural resources belong to the State, and that
these shall not be alienated, the service contract system renders nugatory the constitutional provisions cited." 244 He
elaborates:
Looking at the Philippine model, we can discern the following vestiges of the concession regime, thus:
1. Bidding of a selected area, or leasing the choice of the area to the interested party and then negotiating
the terms and conditions of the contract; (Sec. 5, P.D. 87)
2. Management of the enterprise vested on the contractor, including operation of the field if petroleum is
discovered; (Sec. 8, P.D. 87)

3. Control of production and other matters such as expansion and development; (Sec. 8)
4. Responsibility for downstream operations marketing, distribution, and processing may be with the
contractor (Sec. 8);
5. Ownership of equipment, machinery, fixed assets, and other properties remain with contractor (Sec. 12,
P.D. 87);
6. Repatriation of capital and retention of profits abroad guaranteed to the contractor (Sec. 13, P.D. 87); and
7. While title to the petroleum discovered may nominally be in the name of the government, the contractor
has almost unfettered control over its disposition and sale, and even the domestic requirements of the
country is relegated to a pro rata basis (Sec. 8).
In short, our version of the service contract is just a rehash of the old concession regime x x x. Some people have
pulled an old rabbit out of a magician's hat, and foisted it upon us as a new and different animal.
The service contract as we know it here is antithetical to the principle of sovereignty over our natural resources
restated in the same article of the [1973] Constitution containing the provision for service contracts. If the service
contractor happens to be a foreign corporation, the contract would also run counter to the constitutional provision on
nationalization or Filipinization, of the exploitation of our natural resources.245 [Emphasis supplied. Underscoring in
the original.]
Professor Merlin M. Magallona, also a member of the working group, was harsher in his reproach of the system:
x x x the nationalistic phraseology of the 1935 [Constitution] was retained by the [1973] Charter, but the essence of
nationalism was reduced to hollow rhetoric. The 1973 Charter still provided that the exploitation or development of
the country's natural resources be limited to Filipino citizens or corporations owned or controlled by them. However,
the martial-law Constitution allowed them, once these resources are in their name, to enter into service contracts
with foreign investors for financial, technical, management, or other forms of assistance. Since foreign investors
have the capital resources, the actual exploitation and development, as well as the effective disposition, of the
country's natural resources, would be under their direction, and control, relegating the Filipino investors to the role of
second-rate partners in joint ventures.
Through the instrumentality of the service contract, the 1973 Constitution had legitimized at the highest level of state
policy that which was prohibited under the 1973 Constitution, namely: the exploitation of the country's natural
resources by foreign nationals. The drastic impact of [this] constitutional change becomes more pronounced when it
is considered that the active party to any service contract may be a corporation wholly owned by foreign interests. In
such a case, the citizenship requirement is completely set aside, permitting foreign corporations to obtain actual
possession, control, and [enjoyment] of the country's natural resources.246[Emphasis supplied.]
Accordingly, Professor Agabin recommends that:
Recognizing the service contract for what it is, we have to expunge it from the Constitution and reaffirm ownership
over our natural resources. That is the only way we can exercise effective control over our natural resources.
This should not mean complete isolation of the country's natural resources from foreign investment. Other contract
forms which are less derogatory to our sovereignty and control over natural resources like technical assistance
agreements, financial assistance [agreements], co-production agreements, joint ventures, production-sharing
could still be utilized and adopted without violating constitutional provisions. In other words, we can adopt contract
forms which recognize and assert our sovereignty and ownership over natural resources, and where the foreign
entity is just a pure contractor instead of the beneficial owner of our economic resources.247[Emphasis supplied.]
Still another member of the working group, Professor Eduardo Labitag, proposed that:
2. Service contracts as practiced under the 1973 Constitution should be discouraged, instead the government may
be allowed, subject to authorization by special law passed by an extraordinary majority to enter into either technical
or financial assistance. This is justified by the fact that as presently worded in the 1973 Constitution, a service
contract gives full control over the contract area to the service contractor, for him to work, manage and dispose of
the proceeds or production. It was a subterfuge to get around the nationality requirement of the
constitution.248 [Emphasis supplied.]
In the annotations on the proposed Article on National Economy and Patrimony, the U.P. Law draft summarized the
rationale therefor, thus:
5. The last paragraph is a modification of the service contract provision found in Section 9, Article XIV of the 1973
Constitution as amended. This 1973 provision shattered the framework of nationalism in our fundamental law (see
Magallona, "Nationalism and its Subversion in the Constitution"). Through the service contract, the 1973
Constitution had legitimized that which was prohibited under the 1935 constitutionthe exploitation of the country's
natural resources by foreign nationals. Through the service contract, acts prohibited by the Anti-Dummy Law were
recognized as legitimate arrangements. Service contracts lodge exclusive management and control of the enterprise
to the service contractor, not unlike the old concession regime where the concessionaire had complete control over
the country's natural resources, having been given exclusive and plenary rights to exploit a particular resource and,
in effect, having been assured of ownership of that resource at the point of extraction (see Agabin, "Service
Contracts: Old Wine in New Bottles"). Service contracts, hence, are antithetical to the principle of sovereignty over
our natural resources, as well as the constitutional provision on nationalization or Filipinization of the exploitation of
our natural resources.
Under the proposed provision, only technical assistance or financial assistance agreements may be entered into,
and only for large-scale activities. These are contract forms which recognize and assert our sovereignty and
ownership over natural resources since the foreign entity is just a pure contractor and not a beneficial owner of our
economic resources. The proposal recognizes the need for capital and technology to develop our natural resources
without sacrificing our sovereignty and control over such resources by the safeguard of a special law which requires
two-thirds vote of all the members of the Legislature. This will ensure that such agreements will be debated upon
exhaustively and thoroughly in the National Assembly to avert prejudice to the nation.249[Emphasis supplied.]
The U.P. Law draft proponents viewed service contracts under the 1973 Constitution as grants of beneficial
ownership of the country's natural resources to foreign owned corporations. While, in theory, the State owns these
natural resources and Filipino citizens, their beneficiaries service contracts actually vested foreigners with the

right to dispose, explore for, develop, exploit, and utilize the same. Foreigners, not Filipinos, became the
beneficiaries of Philippine natural resources. This arrangement is clearly incompatible with the constitutional ideal of
nationalization of natural resources, with the Regalian doctrine, and on a broader perspective, with Philippine
sovereignty.
The proponents nevertheless acknowledged the need for capital and technical know-how in the large-scale
exploitation, development and utilization of natural resources the second paragraph of the proposed draft itself
being an admission of such scarcity. Hence, they recommended a compromise to reconcile the nationalistic
provisions dating back to the 1935 Constitution, which reserved all natural resources exclusively to Filipinos, and the
more liberal 1973 Constitution, which allowed foreigners to participate in these resources through service contracts.
Such a compromise called for the adoption of a new system in the exploration, development, and utilization of
natural resources in the form of technical agreements or financial agreements which, necessarily, are distinct
concepts from service contracts.
The replacement of "service contracts" with "agreements involving either technical or financial assistance," as well
as the deletion of the phrase "management or other forms of assistance," assumes greater significance when note
is taken that the U.P. Law draft proposed other equally crucial changes that were obviously heeded by the
CONCOM. These include the abrogation of the concession system and the adoption of new "options" for the State
in the exploration, development, and utilization of natural resources. The proponents deemed these changes to be
more consistent with the State's ownership of, and its "full control and supervision" (a phrase also employed by the
framers) over, such resources. The Project explained:
3. In line with the State ownership of natural resources, the State should take a more active role in the exploration,
development, and utilization of natural resources, than the present practice of granting licenses, concessions, or
leases hence the provision that said activities shall be under the full control and supervision of the State. There
are three major schemes by which the State could undertake these activities: first, directly by itself; second, by virtue
of co-production, joint venture, production sharing agreements with Filipino citizens or corporations or associations
sixty per cent (60%) of the voting stock or controlling interests of which are owned by such citizens; or third, with a
foreign-owned corporation, in cases of large-scale exploration, development, or utilization of natural resources
through agreements involving either technical or financial assistance only. x x x.
At present, under the licensing concession or lease schemes, the government benefits from such benefits only
through fees, charges, ad valorem taxes and income taxes of the exploiters of our natural resources. Such benefits
are very minimal compared with the enormous profits reaped by theses licensees, grantees, concessionaires.
Moreover, some of them disregard the conservation of natural resources and do not protect the environment from
degradation. The proposed role of the State will enable it to a greater share in the profits it can also actively
husband its natural resources and engage in developmental programs that will be beneficial to them.
4. Aside from the three major schemes for the exploration, development, and utilization of our natural resources, the
State may, by law, allow Filipino citizens to explore, develop, utilize natural resources in small-scale. This is in
recognition of the plight of marginal fishermen, forest dwellers, gold panners, and others similarly situated who
exploit our natural resources for their daily sustenance and survival.250
Professor Agabin, in particular, after taking pains to illustrate the similarities between the two systems, concluded
that the service contract regime was but a "rehash" of the concession system. "Old wine in new bottles," as he put it.
The rejection of the service contract regime, therefore, is in consonance with the abolition of the concession system.
In light of the deliberations of the CONCOM, the text of the Constitution, and the adoption of other proposed
changes, there is no doubt that the framers considered and shared the intent of the U.P. Law proponents in
employing the phrase "agreements . . . involving either technical or financial assistance."
While certain commissioners may have mentioned the term "service contracts" during the CONCOM deliberations,
they may not have been necessarily referring to the concept of service contracts under the 1973 Constitution. As
noted earlier, "service contracts" is a term that assumes different meanings to different people. 251 The
commissioners may have been using the term loosely, and not in its technical and legal sense, to refer, in general,
to agreements concerning natural resources entered into by the Government with foreign corporations. These loose
statements do not necessarily translate to the adoption of the 1973 Constitution provision allowing service contracts.
It is true that, as shown in the earlier quoted portions of the proceedings in CONCOM, in response to Sr. Tan's
question, Commissioner Villegas commented that, other than congressional notification, the only difference between
"future" and "past" "service contracts" is the requirement of a general law as there were no laws previously
authorizing the same.252 However, such remark is far outweighed by his more categorical statement in his exchange
with Commissioner Quesada that the draft article "does not permit foreign investors to participate" in the nation's
natural resources which was exactly what service contracts did except to provide "technical or financial
assistance."253
In the case of the other commissioners, Commissioner Nolledo himself clarified in his work that the present charter
prohibits service contracts.254 Commissioner Gascon was not totally averse to foreign participation, but favored
stricter restrictions in the form of majority congressional concurrence.255 On the other hand, Commissioners Garcia
and Tadeo may have veered to the extreme side of the spectrum and their objections may be interpreted as votes
against any foreign participation in our natural resources whatsoever.
WMCP cites Opinion No. 75, s. 1987,256 and Opinion No. 175, s. 1990257 of the Secretary of Justice, expressing the
view that a financial or technical assistance agreement "is no different in concept" from the service contract allowed
under the 1973 Constitution. This Court is not, however, bound by this interpretation. When an administrative or
executive agency renders an opinion or issues a statement of policy, it merely interprets a pre-existing law; and the
administrative interpretation of the law is at best advisory, for it is the courts that finally determine what the law
means.258
In any case, the constitutional provision allowing the President to enter into FTAAs with foreign-owned corporations
is an exception to the rule that participation in the nation's natural resources is reserved exclusively to Filipinos.
Accordingly, such provision must be construed strictly against their enjoyment by non-Filipinos. As Commissioner
Villegas emphasized, the provision is "very restrictive."259 Commissioner Nolledo also remarked that "entering into

service contracts is an exception to the rule on protection of natural resources for the interest of the nation and,
therefore, being an exception, it should be subject, whenever possible, to stringent rules."260Indeed, exceptions
should be strictly but reasonably construed; they extend only so far as their language fairly warrants and all doubts
should be resolved in favor of the general provision rather than the exception.261
With the foregoing discussion in mind, this Court finds that R.A. No. 7942 is invalid insofar as said Act authorizes
service contracts. Although the statute employs the phrase "financial and technical agreements" in accordance with
the 1987 Constitution, it actually treats these agreements as service contracts that grant beneficial ownership to
foreign contractors contrary to the fundamental law.
Section 33, which is found under Chapter VI (Financial or Technical Assistance Agreement) of R.A. No. 7942 states:
SEC. 33. Eligibility.Any qualified person with technical and financial capability to undertake large-scale
exploration, development, and utilization of mineral resources in the Philippines may enter into a financial or
technical assistance agreement directly with the Government through the Department. [Emphasis supplied.]
"Exploration," as defined by R.A. No. 7942,
means the searching or prospecting for mineral resources by geological, geochemical or geophysical surveys,
remote sensing, test pitting, trending, drilling, shaft sinking, tunneling or any other means for the purpose of
determining the existence, extent, quantity and quality thereof and the feasibility of mining them for profit.262
A legally organized foreign-owned corporation may be granted an exploration permit,263 which vests it with the right
to conduct exploration for all minerals in specified areas,264 i.e., to enter, occupy and explore the same.265Eventually,
the foreign-owned corporation, as such permittee, may apply for a financial and technical assistance agreement.266
"Development" is the work undertaken to explore and prepare an ore body or a mineral deposit for mining, including
the construction of necessary infrastructure and related facilities.267
"Utilization" "means the extraction or disposition of minerals."268 A stipulation that the proponent shall dispose of the
minerals and byproducts produced at the highest price and more advantageous terms and conditions as provided
for under the implementing rules and regulations is required to be incorporated in every FTAA.269
A foreign-owned/-controlled corporation may likewise be granted a mineral processing permit.270 "Mineral
processing" is the milling, beneficiation or upgrading of ores or minerals and rocks or by similar means to convert
the same into marketable products.271
An FTAA contractor makes a warranty that the mining operations shall be conducted in accordance with the
provisions of R.A. No. 7942 and its implementing rules272 and for work programs and minimum expenditures and
commitments.273 And it obliges itself to furnish the Government records of geologic, accounting, and other relevant
data for its mining operation.274
"Mining operation," as the law defines it, means mining activities involving exploration, feasibility, development,
utilization, and processing.275
The underlying assumption in all these provisions is that the foreign contractor manages the mineral resources, just
like the foreign contractor in a service contract.
Furthermore, Chapter XII of the Act grants foreign contractors in FTAAs the same auxiliary mining rights that it
grants contractors in mineral agreements (MPSA, CA and JV).276 Parenthetically, Sections 72 to 75 use the term
"contractor," without distinguishing between FTAA and mineral agreement contractors. And so does "holders of
mining rights" in Section 76. A foreign contractor may even convert its FTAA into a mineral agreement if the
economic viability of the contract area is found to be inadequate to justify large-scale mining operations,277provided
that it reduces its equity in the corporation, partnership, association or cooperative to forty percent (40%).278
Finally, under the Act, an FTAA contractor warrants that it "has or has access to all the financing, managerial, and
technical expertise. . . ."279 This suggests that an FTAA contractor is bound to provide some management
assistance a form of assistance that has been eliminated and, therefore, proscribed by the present Charter.
By allowing foreign contractors to manage or operate all the aspects of the mining operation, the above-cited
provisions of R.A. No. 7942 have in effect conveyed beneficial ownership over the nation's mineral resources to
these contractors, leaving the State with nothing but bare title thereto.
Moreover, the same provisions, whether by design or inadvertence, permit a circumvention of the constitutionally
ordained 60%-40% capitalization requirement for corporations or associations engaged in the exploitation,
development and utilization of Philippine natural resources.
In sum, the Court finds the following provisions of R.A. No. 7942 to be violative of Section 2, Article XII of the
Constitution:
(1) The proviso in Section 3 (aq), which defines "qualified person," to wit:
Provided, That a legally organized foreign-owned corporation shall be deemed a qualified person for
purposes of granting an exploration permit, financial or technical assistance agreement or mineral
processing permit.
(2) Section 23,280 which specifies the rights and obligations of an exploration permittee, insofar as said
section applies to a financial or technical assistance agreement,
(3) Section 33, which prescribes the eligibility of a contractor in a financial or technical assistance
agreement;
(4) Section 35,281 which enumerates the terms and conditions for every financial or technical assistance
agreement;
(5) Section 39,282 which allows the contractor in a financial and technical assistance agreement to convert
the same into a mineral production-sharing agreement;
(6) Section 56,283 which authorizes the issuance of a mineral processing permit to a contractor in a financial
and technical assistance agreement;
The following provisions of the same Act are likewise void as they are dependent on the foregoing provisions and
cannot stand on their own:
(1) Section 3 (g),284 which defines the term "contractor," insofar as it applies to a financial or technical
assistance agreement.

Section 34,285 which prescribes the maximum contract area in a financial or technical assistance
agreements;
Section 36,286 which allows negotiations for financial or technical assistance agreements;
Section 37,287 which prescribes the procedure for filing and evaluation of financial or technical assistance
agreement proposals;
Section 38,288 which limits the term of financial or technical assistance agreements;
Section 40,289 which allows the assignment or transfer of financial or technical assistance agreements;
Section 41,290 which allows the withdrawal of the contractor in an FTAA;
The second and third paragraphs of Section 81,291 which provide for the Government's share in a financial
and technical assistance agreement; and
Section 90,292 which provides for incentives to contractors in FTAAs insofar as it applies to said contractors;
When the parts of the statute are so mutually dependent and connected as conditions, considerations, inducements,
or compensations for each other, as to warrant a belief that the legislature intended them as a whole, and that if all
could not be carried into effect, the legislature would not pass the residue independently, then, if some parts are
unconstitutional, all the provisions which are thus dependent, conditional, or connected, must fall with them.293
There can be little doubt that the WMCP FTAA itself is a service contract.
Section 1.3 of the WMCP FTAA grants WMCP "the exclusive right to explore, exploit, utilise[,] process and dispose
of all Minerals products and by-products thereof that may be produced from the Contract Area."294 The FTAA also
imbues WMCP with the following rights:
(b) to extract and carry away any Mineral samples from the Contract area for the purpose of conducting
tests and studies in respect thereof;
(c) to determine the mining and treatment processes to be utilised during the Development/Operating Period
and the project facilities to be constructed during the Development and Construction Period;
(d) have the right of possession of the Contract Area, with full right of ingress and egress and the right to
occupy the same, subject to the provisions of Presidential Decree No. 512 (if applicable) and not be
prevented from entry into private ands by surface owners and/or occupants thereof when prospecting,
exploring and exploiting for minerals therein;
xxx
(f) to construct roadways, mining, drainage, power generation and transmission facilities and all other types
of works on the Contract Area;
(g) to erect, install or place any type of improvements, supplies, machinery and other equipment relating to
the Mining Operations and to use, sell or otherwise dispose of, modify, remove or diminish any and all parts
thereof;
(h) enjoy, subject to pertinent laws, rules and regulations and the rights of third Parties, easement rights and
the use of timber, sand, clay, stone, water and other natural resources in the Contract Area without cost for
the purposes of the Mining Operations;
xxx
(i) have the right to mortgage, charge or encumber all or part of its interest and obligations under this
Agreement, the plant, equipment and infrastructure and the Minerals produced from the Mining Operations;
x x x. 295
All materials, equipment, plant and other installations erected or placed on the Contract Area remain the property of
WMCP, which has the right to deal with and remove such items within twelve months from the termination of the
FTAA.296
Pursuant to Section 1.2 of the FTAA, WMCP shall provide "[all] financing, technology, management and personnel
necessary for the Mining Operations." The mining company binds itself to "perform all Mining Operations . . .
providing all necessary services, technology and financing in connection therewith,"297 and to "furnish all materials,
labour, equipment and other installations that may be required for carrying on all Mining Operations." 298> WMCP
may make expansions, improvements and replacements of the mining facilities and may add such new facilities as it
considers necessary for the mining operations.299
These contractual stipulations, taken together, grant WMCP beneficial ownership over natural resources that
properly belong to the State and are intended for the benefit of its citizens. These stipulations are abhorrent to the
1987 Constitution. They are precisely the vices that the fundamental law seeks to avoid, the evils that it aims to
suppress. Consequently, the contract from which they spring must be struck down.
In arguing against the annulment of the FTAA, WMCP invokes the Agreement on the Promotion and Protection of
Investments between the Philippine and Australian Governments, which was signed in Manila on January 25, 1995
and which entered into force on December 8, 1995.
x x x. Article 2 (1) of said treaty states that it applies to investments whenever made and thus the fact that [WMCP's]
FTAA was entered into prior to the entry into force of the treaty does not preclude the Philippine Government from
protecting [WMCP's] investment in [that] FTAA. Likewise, Article 3 (1) of the treaty provides that "Each Party shall
encourage and promote investments in its area by investors of the other Party and shall [admit] such investments in
accordance with its Constitution, Laws, regulations and investment policies" and in Article 3 (2), it states that "Each
Party shall ensure that investments are accorded fair and equitable treatment." The latter stipulation indicates that it
was intended to impose an obligation upon a Party to afford fair and equitable treatment to the investments of the
other Party and that a failure to provide such treatment by or under the laws of the Party may constitute a breach of
the treaty. Simply stated, the Philippines could not, under said treaty, rely upon the inadequacies of its own laws to
deprive an Australian investor (like [WMCP]) of fair and equitable treatment by invalidating [WMCP's] FTAA without
likewise nullifying the service contracts entered into before the enactment of RA 7942 such as those mentioned in
PD 87 or EO 279.
This becomes more significant in the light of the fact that [WMCP's] FTAA was executed not by a mere Filipino
citizen, but by the Philippine Government itself, through its President no less, which, in entering into said treaty is
assumed to be aware of the existing Philippine laws on service contracts over the exploration, development and

utilization of natural resources. The execution of the FTAA by the Philippine Government assures the Australian
Government that the FTAA is in accordance with existing Philippine laws.300 [Emphasis and italics by private
respondents.]
The invalidation of the subject FTAA, it is argued, would constitute a breach of said treaty which, in turn, would
amount to a violation of Section 3, Article II of the Constitution adopting the generally accepted principles of
international law as part of the law of the land. One of these generally accepted principles is pacta sunt servanda,
which requires the performance in good faith of treaty obligations.
Even assuming arguendo that WMCP is correct in its interpretation of the treaty and its assertion that "the
Philippines could not . . . deprive an Australian investor (like [WMCP]) of fair and equitable treatment by invalidating
[WMCP's] FTAA without likewise nullifying the service contracts entered into before the enactment of RA 7942 . . .,"
the annulment of the FTAA would not constitute a breach of the treaty invoked. For this decision herein invalidating
the subject FTAA forms part of the legal system of the Philippines.301 The equal protection clause302 guarantees that
such decision shall apply to all contracts belonging to the same class, hence, upholding rather than violating, the
"fair and equitable treatment" stipulation in said treaty.
One other matter requires clarification. Petitioners contend that, consistent with the provisions of Section 2, Article
XII of the Constitution, the President may enter into agreements involving "either technical or financial assistance"
only. The agreement in question, however, is a technical and financial assistance agreement.
Petitioners' contention does not lie. To adhere to the literal language of the Constitution would lead to absurd
consequences.303 As WMCP correctly put it:
x x x such a theory of petitioners would compel the government (through the President) to enter into contract with
two (2) foreign-owned corporations, one for financial assistance agreement and with the other, for technical
assistance over one and the same mining area or land; or to execute two (2) contracts with only one foreign-owned
corporation which has the capability to provide both financial and technical assistance, one for financial assistance
and another for technical assistance, over the same mining area. Such an absurd result is definitely not sanctioned
under the canons of constitutional construction.304 [Underscoring in the original.]
Surely, the framers of the 1987 Charter did not contemplate such an absurd result from their use of "either/or." A
constitution is not to be interpreted as demanding the impossible or the impracticable; and unreasonable or absurd
consequences, if possible, should be avoided.305 Courts are not to give words a meaning that would lead to absurd
or unreasonable consequences and a literal interpretation is to be rejected if it would be unjust or lead to absurd
results.306 That is a strong argument against its adoption.307 Accordingly, petitioners' interpretation must be rejected.
The foregoing discussion has rendered unnecessary the resolution of the other issues raised by the petition.
WHEREFORE, the petition is GRANTED. The Court hereby declares unconstitutional and void:
(1) The following provisions of Republic Act No. 7942:
(a) The proviso in Section 3 (aq),
(b) Section 23,
(c) Section 33 to 41,
(d) Section 56,
(e) The second and third paragraphs of Section 81, and
(f) Section 90.
(2) All provisions of Department of Environment and Natural Resources Administrative Order 96-40, s. 1996
which are not in conformity with this Decision, and
(3) The Financial and Technical Assistance Agreement between the Government of the Republic of the
Philippines and WMC Philippines, Inc.
SO ORDERED.

G.R. No. 101083 July 30, 1993

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and represented by their
parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by her parents CALVIN
and ROBERTA SADIUA, CARLO, AMANDA SALUD and PATRISHA, all surnamed FLORES, minors and
represented by their parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor, represented by her
parents SIGRID and DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA, minors and
represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN, minor, represented by his
parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO, minor, represented by her parents JOSE and
MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor, represented by her parents FREDENIL and
JANE
CASTRO,
JOHANNA
DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T. NARVASA, minor,
represented by his parents GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA, JESUS IGNACIO,
MA. ANGELA and MARIE GABRIELLE, all surnamed SAENZ, minors, represented by their parents ROBERTO and
AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING, minors,
represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA, all
surnamed ENDRIGA, minors, represented by their parents BALTAZAR and TERESITA ENDRIGA, JOSE MA. and
REGINA MA., all surnamed ABAYA, minors, represented by their parents ANTONIO and MARICA ABAYA,
MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA, minors, represented by their parents MARIO and
LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors and represented
by their parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all
surnamed QUIPIT, minors, represented by their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO,
CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed BIBAL, minors, represented by their parents
FRANCISCO, JR. and MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the Department of
Environment and Natural Resources, and THE HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of the
RTC, Makati, Branch 66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.
DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology which the petitioners
dramatically associate with the twin concepts of "inter-generational responsibility" and "inter-generational justice."
Specifically, it touches on the issue of whether the said petitioners have a cause of action to "prevent the misappropriation
or impairment" of Philippine rainforests and "arrest the unabated hemorrhage of the country's vital life support systems
and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati, Metro Manila) of the
Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein, now the principal petitioners,
are all minors duly represented and joined by their respective parents. Impleaded as an additional plaintiff is the Philippine
Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation organized for the purpose of, inter alia,
engaging in concerted action geared for the protection of our environment and natural resources. The original defendant
was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and Natural Resources
(DENR). His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala, was subsequently ordered
upon proper motion by the petitioners. 1 The complaint 2 was instituted as a taxpayers' class suit 3 and alleges that the
plaintiffs "are all citizens of the Republic of the Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of
the natural resource treasure that is the country's virgin tropical forests." The same was filed for themselves and others
who are equally concerned about the preservation of said resource but are "so numerous that it is impracticable to bring
them all before the Court." The minors further asseverate that they "represent their generation as well as generations yet
unborn." 4 Consequently, it is prayed for that judgment be rendered:
. . . ordering defendant, his agents, representatives and other persons acting in his behalf to
(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing, renewing or approving new timber license
agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5
The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a land area of
thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in which varied, rare and unique
species of flora and fauna may be found; these rainforests contain a genetic, biological and chemical pool which is
irreplaceable; they are also the habitat of indigenous Philippine cultures which have existed, endured and flourished since
time immemorial; scientific evidence reveals that in order to maintain a balanced and healthful ecology, the country's land
area should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for
agricultural, residential, industrial, commercial and other uses; the distortion and disturbance of this balance as a
consequence of deforestation have resulted in a host of environmental tragedies, such as (a) water shortages resulting
from drying up of the water table, otherwise known as the "aquifer," as well as of rivers, brooks and streams, (b)
salinization of the water table as a result of the intrusion therein of salt water, incontrovertible examples of which may be
found in the island of Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and the consequential loss of soil
fertility and agricultural productivity, with the volume of soil eroded estimated at one billion (1,000,000,000) cubic meters
per annum approximately the size of the entire island of Catanduanes, (d) the endangering and extinction of the
country's unique, rare and varied flora and fauna, (e) the disturbance and dislocation of cultural communities, including the
disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and consequential destruction of
corals and other aquatic life leading to a critical reduction in marine resource productivity, (g) recurrent spells of drought
as is presently experienced by the entire country, (h) increasing velocity of typhoon winds which result from the absence
of windbreakers, (i) the floodings of lowlands and agricultural plains arising from the absence of the absorbent mechanism
of forests, (j) the siltation and shortening of the lifespan of multi-billion peso dams constructed and operated for the
purpose of supplying water for domestic uses, irrigation and the generation of electric power, and (k) the reduction of the

earth's capacity to process carbon dioxide gases which has led to perplexing and catastrophic climatic changes such as
the phenomenon of global warming, otherwise known as the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation are so capable of
unquestionable demonstration that the same may be submitted as a matter of judicial notice. This notwithstanding, they
expressed their intention to present expert witnesses as well as documentary, photographic and film evidence in the
course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of rainforests
constituting roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million hectares of said
rainforests or four per cent (4.0%) of the country's land area.
10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth rainforests are left,
barely 2.8% of the entire land mass of the Philippine archipelago and about 3.0 million hectares of
immature and uneconomical secondary growth forests.
11. Public records reveal that the defendant's, predecessors have granted timber license agreements
('TLA's') to various corporations to cut the aggregate area of 3.89 million hectares for commercial logging
purposes.
A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex "A".
12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25 hectares per hour
nighttime, Saturdays, Sundays and holidays included the Philippines will be bereft of forest resources
after the end of this ensuing decade, if not earlier.
13. The adverse effects, disastrous consequences, serious injury and irreparable damage of this
continued trend of deforestation to the plaintiff minor's generation and to generations yet unborn are
evident and incontrovertible. As a matter of fact, the environmental damages enumerated in paragraph 6
hereof are already being felt, experienced and suffered by the generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to cut and deforest the remaining forest stands
will work great damage and irreparable injury to plaintiffs especially plaintiff minors and their
successors who may never see, use, benefit from and enjoy this rare and unique natural resource
treasure.
This act of defendant constitutes a misappropriation and/or impairment of the natural resource property
he holds in trust for the benefit of plaintiff minors and succeeding generations.
15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are entitled to
protection by the State in its capacity as the parens patriae.
16. Plaintiff have exhausted all administrative remedies with the defendant's office. On March 2, 1990,
plaintiffs served upon defendant a final demand to cancel all logging permits in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".
17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing serious damage
and extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel the TLA's is an act violative of the rights of
plaintiffs, especially plaintiff minors who may be left with a country that is desertified (sic), bare, barren
and devoid of the wonderful flora, fauna and indigenous cultures which the Philippines had been
abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the public policy
enunciated in the Philippine Environmental Policy which, in pertinent part, states that it is the policy of the
State
(a) to create, develop, maintain and improve conditions under which man and nature can thrive in
productive and enjoyable harmony with each other;
(b) to fulfill the social, economic and other requirements of present and future generations of Filipinos
and;
(c) to ensure the attainment of an environmental quality that is conductive to a life of dignity and wellbeing. (P.D. 1151, 6 June 1977)
20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is contradictory to the
Constitutional policy of the State to
a. effect "a more equitable distribution of opportunities, income and wealth" and "make full and efficient
use of natural resources (sic)." (Section 1, Article XII of the Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14, Article XIV,id.);
d. "protect and advance the right of the people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature." (Section 16, Article II, id.)
21. Finally, defendant's act is contrary to the highest law of humankind the natural law and violative
of plaintiffs' right to self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in law other than the instant action to arrest the
unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint based on two (2)
grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue raised by the plaintiffs is a
political question which properly pertains to the legislative or executive branches of Government. In their 12 July 1990
Opposition to the Motion, the petitioners maintain that (1) the complaint shows a clear and unmistakable cause of action,
(2) the motion is dilatory and (3) the action presents a justiciable question as it involves the defendant's abuse of
discretion.
On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss. 7 In the said order,
not only was the defendant's claim that the complaint states no cause of action against him and that it raises a political
question sustained, the respondent Judge further ruled that the granting of the relief prayed for would result in the
impairment of contracts which is prohibited by the fundamental law of the land.

Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court and ask this
Court to rescind and set aside the dismissal order on the ground that the respondent Judge gravely abused his discretion
in dismissing the action. Again, the parents of the plaintiffs-minors not only represent their children, but have also joined
the latter in this case. 8
On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their respective
Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the respondents and the
petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains sufficient
allegations concerning their right to a sound environment based on Articles 19, 20 and 21 of the Civil Code (Human
Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of Presidential Decree (P.D.) No.
1151 (Philippine Environmental Policy), Section 16, Article II of the 1987 Constitution recognizing the right of the people to
a balanced and healthful ecology, the concept of generational genocide in Criminal Law and the concept of man's
inalienable right to self-preservation and self-perpetuation embodied in natural law. Petitioners likewise rely on the
respondent's correlative obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a healthful
environment.
It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in granting Timber
License Agreements (TLAs) to cover more areas for logging than what is available involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petitioners maintain that the
same does not apply in this case because TLAs are not contracts. They likewise submit that even if TLAs may be
considered protected by the said clause, it is well settled that they may still be revoked by the State when the public
interest so requires.
On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific legal right violated
by the respondent Secretary for which any relief is provided by law. They see nothing in the complaint but vague and
nebulous allegations concerning an "environmental right" which supposedly entitles the petitioners to the "protection by
the state in its capacity as parens patriae." Such allegations, according to them, do not reveal a valid cause of action.
They then reiterate the theory that the question of whether logging should be permitted in the country is a political
question which should be properly addressed to the executive or legislative branches of Government. They therefore
assert that the petitioners' resources is not to file an action to court, but to lobby before Congress for the passage of a bill
that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the State without
due process of law. Once issued, a TLA remains effective for a certain period of time usually for twenty-five (25) years.
During its effectivity, the same can neither be revised nor cancelled unless the holder has been found, after due notice
and hearing, to have violated the terms of the agreement or other forestry laws and regulations. Petitioners' proposition to
have all the TLAs indiscriminately cancelled without the requisite hearing would be violative of the requirements of due
process.
Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil Case No. 90-777 as
a class suit. The original defendant and the present respondents did not take issue with this matter. Nevertheless, We
hereby rule that the said civil case is indeed a class suit. The subject matter of the complaint is of common and general
interest not just to several, but to all citizens of the Philippines. Consequently, since the parties are so numerous, it,
becomes impracticable, if not totally impossible, to bring all of them before the court. We likewise declare that the plaintiffs
therein are numerous and representative enough to ensure the full protection of all concerned interests. Hence, all the
requisites for the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court are present both in the
said civil case and in the instant petition, the latter being but an incident to the former.
This case, however, has a special and novel element. Petitioners minors assert that they represent their generation as
well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation
and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can
only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is
concerned.
Such
a
right,
as
hereinafter
expounded,
considers
the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such rhythm and harmony
indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the
country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their
exploration, development and utilization be equitably accessible to the present as well as future generations. 10 Needless
to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a
balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment
constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations
to come.
The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of the petition.
After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the issues raised and
arguments adduced by the parties, We do not hesitate to find for the petitioners and rule against the respondent Judge's
challenged order for having been issued with grave abuse of discretion amounting to lack of jurisdiction. The pertinent
portions of the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the Complaint, the Court cannot help but agree with the
defendant. For although we believe that plaintiffs have but the noblest of all intentions, it (sic) fell short of
alleging, with sufficient definiteness, a specific legal right they are seeking to enforce and protect, or a
specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the
Court notes that the Complaint is replete with vague assumptions and vague conclusions based on
unverified data. In fine, plaintiffs fail to state a cause of action in its Complaint against the herein
defendant.
Furthermore, the Court firmly believes that the matter before it, being impressed with political color and
involving a matter of public policy, may not be taken cognizance of by this Court without doing violence to
the sacred principle of "Separation of Powers" of the three (3) co-equal branches of the Government.
The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the
reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and
to cease and desist from receiving, accepting, processing, renewing or approving new timber license

agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the
fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient definiteness a specif ic
legal right involved or a specific legal wrong committed, and that the complaint is replete with vague assumptions and
conclusions based on unverified data. A reading of the complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal right the right to a balanced and healthful ecology which, for
the first time in our nation's constitutional history, is solemnly incorporated in the fundamental law. Section 16, Article II of
the 1987 Constitution explicitly provides:
Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology
in accord with the rhythm and harmony of nature.
This right unites with the right to health which is provided for in the preceding section of the same article:
Sec. 15. The State shall protect and promote the right to health of the people and instill health
consciousness among them.
While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies
and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights
enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than
self-preservation and self-perpetuation aptly and fittingly stressed by the petitioners the advancement of which may
even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written
in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in
the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and
healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their
continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the
second, the day would not be too far when all else would be lost not only for the present generation, but also for those to
come generations which stand to inherit nothing but parched earth incapable of sustaining life.
The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment.
During the debates on this right in one of the plenary sessions of the 1986 Constitutional Commission, the following
exchange transpired between Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who sponsored the
section in question:
MR. VILLACORTA:
Does this section mandate the State to provide sanctions against all forms of pollution
air, water and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic) environment necessarily carries with it
the correlative duty of not impairing the same and, therefore, sanctions may be provided
for impairment of environmental balance. 12
The said right implies, among many other things, the judicious management and conservation of the country's forests.
Without such forests, the ecological or environmental balance would be irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as well as the other
related provisions of the Constitution concerning the conservation, development and utilization of the country's natural
resources, 13 then President Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of which
expressly mandates that the Department of Environment and Natural Resources "shall be the primary government agency
responsible for the conservation, management, development and proper use of the country's environment and natural
resources, specifically forest and grazing lands, mineral, resources, including those in reservation and watershed areas,
and lands of the public domain, as well as the licensing and regulation of all natural resources as may be provided for by
law in order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present and future
generations of Filipinos." Section 3 thereof makes the following statement of policy:
Sec. 3. Declaration of Policy. It is hereby declared the policy of the State to ensure the sustainable
use, development, management, renewal, and conservation of the country's forest, mineral, land, offshore areas and other natural resources, including the protection and enhancement of the quality of the
environment, and equitable access of the different segments of the population to the development and
the use of the country's natural resources, not only for the present generation but for future generations
as well. It is also the policy of the state to recognize and apply a true value system including social and
environmental cost implications relative to their utilization, development and conservation of our natural
resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of 1987, 15specifically in
Section 1 thereof which reads:
Sec. 1. Declaration of Policy. (1) The State shall ensure, for the benefit of the Filipino people, the full
exploration and development as well as the judicious disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other
natural resources, consistent with the necessity of maintaining a sound ecological balance and protecting
and enhancing the quality of the environment and the objective of making the exploration, development
and utilization of such natural resources equitably accessible to the different segments of the present as
well as future generations.
(2) The State shall likewise recognize and apply a true value system that takes into account social and
environmental cost implications relative to the utilization, development and conservation of our natural
resources.
The above provision stresses "the necessity of maintaining a sound ecological balance and protecting and enhancing the
quality of the environment." Section 2 of the same Title, on the other hand, specifically speaks of the mandate of the
DENR; however, it makes particular reference to the fact of the agency's being subject to law and higher authority. Said
section provides:
Sec. 2. Mandate. (1) The Department of Environment and Natural Resources shall be primarily
responsible for the implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of carrying out the State's constitutional
mandate to control and supervise the exploration, development, utilization, and conservation of the
country's natural resources.

Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the bases for policy
formulation, and have defined the powers and functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes already paid
special attention to the "environmental right" of the present and future generations. On 6 June 1977, P.D. No. 1151
(Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment Code) were issued. The former "declared a
continuing policy of the State (a) to create, develop, maintain and improve conditions under which man and nature can
thrive in productive and enjoyable harmony with each other, (b) to fulfill the social, economic and other requirements of
present and future generations of Filipinos, and (c) to insure the attainment of an environmental quality that is conducive
to a life of dignity and well-being." 16 As its goal, it speaks of the "responsibilities of each generation as trustee and
guardian of the environment for succeeding generations." 17 The latter statute, on the other hand, gave flesh to the said
policy.
Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as clear as the
DENR's duty under its mandate and by virtue of its powers and functions under E.O. No. 192 and the Administrative
Code of 1987 to protect and advance the said right.
A denial or violation of that right by the other who has the corelative duty or obligation to respect or protect the same gives
rise to a cause of action. Petitioners maintain that the granting of the TLAs, which they claim was done with grave abuse
of discretion, violated their right to a balanced and healthful ecology; hence, the full protection thereof requires that no
further TLAs should be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal right or rights of the other; and its essential
elements are legal right of the plaintiff, correlative obligation of the defendant, and act or omission of the
defendant in violation of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to state a cause of
action, 19 the question submitted to the court for resolution involves the sufficiency of the facts alleged in the complaint
itself. No other matter should be considered; furthermore, the truth of falsity of the said allegations is beside the point for
the truth thereof is deemed hypothetically admitted. The only issue to be resolved in such a case is: admitting such
alleged facts to be true, may the court render a valid judgment in accordance with the prayer in the
complaint? 20 InMilitante vs. Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise the utmost care
and circumspection in passing upon a motion to dismiss on the ground of the absence thereof [cause of action] lest, by its
failure to manifest a correct appreciation of the facts alleged and deemed hypothetically admitted, what the law grants or
recognizes is effectively nullified. If that happens, there is a blot on the legal order. The law itself stands in disrepute."
After careful examination of the petitioners' complaint, We find the statements under the introductory affirmative
allegations, as well as the specific averments under the sub-heading CAUSE OF ACTION, to be adequate enough to
show, prima facie, the claimed violation of their rights. On the basis thereof, they may thus be granted, wholly or partly,
the reliefs prayed for. It bears stressing, however, that insofar as the cancellation of the TLAs is concerned, there is the
need to implead, as party defendants, the grantees thereof for they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation or determination
by the executive or legislative branches of Government is not squarely put in issue. What is principally involved is the
enforcement of a right vis-a-vis policies already formulated and expressed in legislation. It must, nonetheless, be
emphasized that the political question doctrine is no longer, the insurmountable obstacle to the exercise of judicial power
or the impenetrable shield that protects executive and legislative actions from judicial inquiry or review. The second
paragraph of section 1, Article VIII of the Constitution states that:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of the Government.
Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a distinguished member
of this Court, says:
The first part of the authority represents the traditional concept of judicial power, involving the settlement
of conflicting rights as conferred as law. The second part of the authority represents a broadening of
judicial power to enable the courts of justice to review what was before forbidden territory, to wit, the
discretion of the political departments of the government.
As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to rule
upon even the wisdom of the decisions of the executive and the legislature and to declare their acts
invalid for lack or excess of jurisdiction because tainted with grave abuse of discretion. The catch, of
course, is the meaning of "grave abuse of discretion," which is a very elastic phrase that can expand or
contract according to the disposition of the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The
reason is that, even if we were to assume that the issue presented before us was political in nature, we
would still not be precluded from revolving it under the expanded jurisdiction conferred upon us that now
covers, in proper cases, even the political question. Article VII, Section 1, of the Constitution clearly
provides: . . .
The last ground invoked by the trial court in dismissing the complaint is the non-impairment of contracts clause found in
the Constitution. The court a quo declared that:
The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the
reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and
to cease and desist from receiving, accepting, processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the
fundamental law. 24
We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping pronouncement. In the
first place, the respondent Secretary did not, for obvious reasons, even invoke in his motion to dismiss the nonimpairment clause. If he had done so, he would have acted with utmost infidelity to the Government by providing undue
and unwarranted benefits and advantages to the timber license holders because he would have forever bound the
Government to strictly respect the said licenses according to their terms and conditions regardless of changes in policy

and the demands of public interest and welfare. He was aware that as correctly pointed out by the petitioners, into every
timber license must be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:
. . . Provided, That when the national interest so requires, the President may amend, modify, replace or
rescind any contract, concession, permit, licenses or any other form of privilege granted herein . . .
Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract, property
or a property right protested by the due process clause of the Constitution. In Tan vs. Director of Forestry, 25 this
Court held:
. . . A timber license is an instrument by which the State regulates the utilization and disposition of forest
resources to the end that public welfare is promoted. A timber license is not a contract within the purview
of the due process clause; it is only a license or privilege, which can be validly withdrawn whenever
dictated by public interest or public welfare as in this case.
A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract
between the authority, federal, state, or municipal, granting it and the person to whom it is granted;
neither is it property or a property right, nor does it create a vested right; nor is it taxation (37 C.J. 168).
Thus, this Court held that the granting of license does not create irrevocable rights, neither is it property
or property rights (People vs. Ong Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26
. . . Timber licenses, permits and license agreements are the principal instruments by which the State
regulates the utilization and disposition of forest resources to the end that public welfare is promoted. And
it can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified entities,
and do not vest in the latter a permanent or irrevocable right to the particular concession area and the
forest products therein. They may be validly amended, modified, replaced or rescinded by the Chief
Executive when national interests so require. Thus, they are not deemed contracts within the purview of
the due process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also,
Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].
Since timber licenses are not contracts, the non-impairment clause, which reads:
Sec. 10. No law impairing, the obligation of contracts shall be passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the same are contracts, the instant case does not involve a law or
even an executive issuance declaring the cancellation or modification of existing timber licenses. Hence, the nonimpairment clause cannot as yet be invoked. Nevertheless, granting further that a law has actually been passed
mandating cancellations or modifications, the same cannot still be stigmatized as a violation of the non-impairment clause.
This is because by its very nature and purpose, such as law could have only been passed in the exercise of the police
power of the state for the purpose of advancing the right of the people to a balanced and healthful ecology, promoting
their
health
and
enhancing
the
general
welfare.
In Abe
vs.
Foster
Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government, is not meant to be absolute. The same is
understood to be subject to reasonable legislative regulation aimed at the promotion of public health,
moral, safety and welfare. In other words, the constitutional guaranty of non-impairment of obligations of
contract is limited by the exercise of the police power of the State, in the interest of public health, safety,
moral and general welfare.
The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American Life Insurance Co. vs.
Auditor General, 30 to wit:
Under our form of government the use of property and the making of contracts are normally matters of
private and not of public concern. The general rule is that both shall be free of governmental interference.
But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may
at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them
harm. Equally fundamental with the private right is that of the public to regulate it in the common interest.
In short, the non-impairment clause must yield to the police power of the state. 31
Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with respect to the prayer
to enjoin the respondent Secretary from receiving, accepting, processing, renewing or approving new timber licenses for,
save in cases of renewal, no contract would have as of yet existed in the other instances. Moreover, with respect to
renewal, the holder is not entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged Order of
respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may therefore
amend their complaint to implead as defendants the holders or grantees of the questioned timber license agreements.
No pronouncement as to costs.
SO ORDERED.

G.R. No. L-45685

November 16, 1937
THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI BANKING CORPORATION,petitioners,
vs.
JOSE O. VERA, Judge . of the Court of First Instance of Manila, and MARIANO CU UNJIENG, respondents.
Office of the Solicitor General Tuason and City Fiscal Diaz for the Government.
De Witt, Perkins and Ponce Enrile for the Hongkong and Shanghai Banking Corporation.
Vicente J. Francisco, Feria and La O, Orense and Belmonte, and Gibbs and McDonough for respondent Cu Unjieng.
No appearance for respondent Judge.
LAUREL, J.:
This is an original action instituted in this court on August 19, 1937, for the issuance of the writ of certiorari and of
prohibition to the Court of First Instance of Manila so that this court may review the actuations of the aforesaid Court of
First Instance in criminal case No. 42649 entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et al.",
more particularly the application of the defendant Mariano Cu Unjieng therein for probation under the provisions of Act No.
4221, and thereafter prohibit the said Court of First Instance from taking any further action or entertaining further the
aforementioned application for probation, to the end that the defendant Mariano Cu Unjieng may be forthwith committed to
prison in accordance with the final judgment of conviction rendered by this court in said case (G. R. No. 41200). 1
Petitioners herein, the People of the Philippine and the Hongkong and Shanghai Banking Corporation, are respectively
the plaintiff and the offended party, and the respondent herein Mariano Cu Unjieng is one of the defendants, in the
criminal case entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", criminal case No. 42649 of the
Court of First Instance of Manila and G.R. No. 41200 of this court. Respondent herein, Hon. Jose O. Vera, is the Judge ad
interim of the seventh branch of the Court of First Instance of Manila, who heard the application of the defendant Mariano
Cu Unjieng for probation in the aforesaid criminal case.
The information in the aforesaid criminal case was filed with the Court of First Instance of Manila on October 15, 1931,
petitioner herein Hongkong and Shanghai Banking Corporation intervening in the case as private prosecutor. After a
protracted trial unparalleled in the annals of Philippine jurisprudence both in the length of time spent by the court as well
as in the volume in the testimony and the bulk of the exhibits presented, the Court of First Instance of Manila, on January
8, 1934, rendered a judgment of conviction sentencing the defendant Mariano Cu Unjieng to indeterminate penalty
ranging from four years and two months of prision correccional to eight years of prision mayor, to pay the costs and with
reservation of civil action to the offended party, the Hongkong and Shanghai Banking Corporation. Upon appeal, the court,
on March 26, 1935, modified the sentence to an indeterminate penalty of from five years and six months of prision
correccional to seven years, six months and twenty-seven days of prision mayor, but affirmed the judgment in all other
respects. Mariano Cu Unjieng filed a motion for reconsideration and four successive motions for new trial which were
denied on December 17, 1935, and final judgment was accordingly entered on December 18, 1935. The defendant
thereupon sought to have the case elevated on certiorari to the Supreme Court of the United States but the latter denied
the petition forcertiorari in
November, 1936. This court, on
November 24, 1936, denied the petition
subsequently filed by the defendant for leave to file a second alternative motion for reconsideration or new trial and
thereafter remanded the case to the court of origin for execution of the judgment.
The instant proceedings have to do with the application for probation filed by the herein respondent Mariano Cu Unjieng
on
November 27, 1936, before the trial court, under the provisions of Act No. 4221 of the defunct Philippine
Legislature. Herein respondent Mariano Cu Unjieng states in his petition, inter alia, that he is innocent of the crime of
which he was convicted, that he has no criminal record and that he would observe good conduct in the future. The Court
of First Instance of Manila, Judge Pedro Tuason presiding, referred the application for probation of the Insular Probation
Office which recommended denial of the same June 18, 1937. Thereafter, the Court of First Instance of Manila, seventh
branch, Judge Jose O. Vera presiding, set the petition for hearing on April 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of probation to the herein respondent
Mariano Cu Unjieng. The private prosecution also filed an opposition on April 5, 1937, alleging, among other things, that
Act No. 4221, assuming that it has not been repealed by section 2 of Article XV of the Constitution, is nevertheless
violative of section 1, subsection (1), Article III of the Constitution guaranteeing equal protection of the laws for the reason
that its applicability is not uniform throughout the Islands and because section 11 of the said Act endows the provincial
boards with the power to make said law effective or otherwise in their respective or otherwise in their respective
provinces. The private prosecution also filed a supplementary opposition on April 19, 1937, elaborating on the alleged
unconstitutionality on Act No. 4221, as an undue delegation of legislative power to the provincial boards of several
provinces (sec. 1, Art. VI, Constitution). The City Fiscal concurred in the opposition of the private prosecution except with
respect to the questions raised concerning the constitutionality of Act No. 4221.
On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution with a finding that "las pruebas no
han establecido de unamanera concluyente la culpabilidad del peticionario y que todos los hechos probados no son
inconsistentes o incongrentes con su inocencia" and concludes that the herein respondent Mariano Cu Unjieng "es
inocente por duda racional" of the crime of which he stands convicted by this court in G.R. No. 41200, but denying the
latter's petition for probation for the reason that:
. . . Si este Juzgado concediera la poblacion solicitada por las circunstancias y la historia social que se han
expuesto en el cuerpo de esta resolucion, que hacen al peticionario acreedor de la misma, una parte de la
opinion publica, atizada por los recelos y las suspicacias, podria levantarse indignada contra un sistema de
probacion que permite atisbar en los procedimientos ordinarios de una causa criminal perturbando la quietud y la
eficacia de las decisiones ya recaidas al traer a la superficie conclusiones enteramente differentes, en
menoscabo del interes publico que demanda el respeto de las leyes y del veredicto judicial.
On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed an exception to the resolution denying
probation and a notice of intention to file a motion for reconsideration. An alternative motion for reconsideration or new
trial was filed by counsel on July 13, 1937. This was supplemented by an additional motion for reconsideration submitted
on July 14, 1937. The aforesaid motions were set for hearing on July 31, 1937, but said hearing was postponed at the
petition of counsel for the respondent Mariano Cu Unjieng because a motion for leave to intervene in the case as amici
curiae signed by thirty-three (thirty-four) attorneys had just been filed with the trial court. Attorney Eulalio Chaves whose
signature appears in the aforesaid motion subsequently filed a petition for leave to withdraw his appearance as amicus
curiae on the ground that the motion for leave to intervene as amici curiae was circulated at a banquet given by counsel

for Mariano Cu Unjieng on the evening of July 30, 1937, and that he signed the same "without mature deliberation and
purely as a matter of courtesy to the person who invited me (him)."
On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial court for the issuance of an order of
execution of the judgment of this court in said case and forthwith to commit the herein respondent Mariano Cu Unjieng to
jail in obedience to said judgment.
On August 7, 1937, the private prosecution filed its opposition to the motion for leave to intervene as amici
curiaeaforementioned, asking that a date be set for a hearing of the same and that, at all events, said motion should be
denied with respect to certain attorneys signing the same who were members of the legal staff of the several counsel for
Mariano Cu Unjieng. On August 10, 1937, herein respondent Judge Jose O. Vera issued an order requiring all parties
including the movants for intervention as amici curiae to appear before the court on August 14, 1937. On the lastmentioned date, the Fiscal of the City of Manila moved for the hearing of his motion for execution of judgment in
preference to the motion for leave to intervene as amici curiae but, upon objection of counsel for Mariano Cu Unjieng, he
moved for the postponement of the hearing of both motions. The respondent judge thereupon set the hearing of the
motion for execution on August 21, 1937, but proceeded to consider the motion for leave to intervene as amici curiae as in
order. Evidence as to the circumstances under which said motion for leave to intervene as amici curiae was signed and
submitted to court was to have been heard on August 19, 1937. But at this juncture, herein petitioners came to this court
on extraordinary legal process to put an end to what they alleged was an interminable proceeding in the Court of First
Instance of Manila which fostered "the campaign of the defendant Mariano Cu Unjieng for delay in the execution of the
sentence imposed by this Honorable Court on him, exposing the courts to criticism and ridicule because of the apparent
inability of the judicial machinery to make effective a final judgment of this court imposed on the defendant Mariano Cu
Unjieng."
The scheduled hearing before the trial court was accordingly suspended upon the issuance of a temporary restraining
order by this court on August 21, 1937.
To support their petition for the issuance of the extraordinary writs of certiorari and prohibition, herein petitioners allege
that the respondent judge has acted without jurisdiction or in excess of his jurisdiction:
I. Because said respondent judge lacks the power to place respondent Mariano Cu Unjieng under probation for the
following reason:
(1) Under section 11 of Act No. 4221, the said of the Philippine Legislature is made to apply only to the provinces
of the Philippines; it nowhere states that it is to be made applicable to chartered cities like the City of Manila.
(2) While section 37 of the Administrative Code contains a proviso to the effect that in the absence of a special
provision, the term "province" may be construed to include the City of Manila for the purpose of giving effect to
laws of general application, it is also true that Act No. 4221 is not a law of general application because it is made
to apply only to those provinces in which the respective provincial boards shall have provided for the salary of a
probation officer.
(3) Even if the City of Manila were considered to be a province, still, Act No. 4221 would not be applicable to it
because it has provided for the salary of a probation officer as required by section 11 thereof; it being immaterial
that there is an Insular Probation Officer willing to act for the City of Manila, said Probation Officer provided for in
section 10 of Act No. 4221 being different and distinct from the Probation Officer provided for in section 11 of the
same Act.
II. Because even if the respondent judge originally had jurisdiction to entertain the application for probation of the
respondent Mariano Cu Unjieng, he nevertheless acted without jurisdiction or in excess thereof in continuing to entertain
the motion for reconsideration and by failing to commit Mariano Cu Unjieng to prison after he had promulgated his
resolution of June 28, 1937, denying Mariano Cu Unjieng's application for probation, for the reason that:
(1) His jurisdiction and power in probation proceedings is limited by Act No. 4221 to the granting or denying of
applications for probation.
(2) After he had issued the order denying Mariano Cu Unjieng's petition for probation on June 28, 1937, it became
final and executory at the moment of its rendition.
(3) No right on appeal exists in such cases.
(4) The respondent judge lacks the power to grant a rehearing of said order or to modify or change the same.
III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent of the crime for which he was
convicted by final judgment of this court, which finding is not only presumptuous but without foundation in fact and in law,
and is furthermore in contempt of this court and a violation of the respondent's oath of office as ad interim judge of first
instance.
IV. Because the respondent judge has violated and continues to violate his duty, which became imperative when he
issued his order of June 28, 1937, denying the application for probation, to commit his co-respondent to jail.
Petitioners also avers that they have no other plain, speedy and adequate remedy in the ordinary course of law.
In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and Shanghai Banking Corporation
further contends that Act No. 4221 of the Philippine Legislature providing for a system of probation for persons eighteen
years of age or over who are convicted of crime, is unconstitutional because it is violative of section 1, subsection (1),
Article III, of the Constitution of the Philippines guaranteeing equal protection of the laws because it confers upon the
provincial board of its province the absolute discretion to make said law operative or otherwise in their respective
provinces, because it constitutes an unlawful and improper delegation to the provincial boards of the several provinces of
the legislative power lodged by the Jones Law (section 8) in the Philippine Legislature and by the Constitution (section 1,
Art. VI) in the National Assembly; and for the further reason that it gives the provincial boards, in contravention of the
Constitution (section 2, Art. VIII) and the Jones Law (section 28), the authority to enlarge the powers of the Court of First
Instance of different provinces without uniformity. In another supplementary petition dated September 14, 1937, the Fiscal
of the City of Manila, in behalf of one of the petitioners, the People of the Philippine Islands, concurs for the first time with
the issues raised by other petitioner regarding the constitutionality of Act No. 4221, and on the oral argument held on
October 6, 1937, further elaborated on the theory that probation is a form of reprieve and therefore Act. No. 4221 is an
encroachment on the exclusive power of the Chief Executive to grant pardons and reprieves. On October 7, 1937, the City
Fiscal filed two memorandums in which he contended that Act No. 4221 not only encroaches upon the pardoning power to
the executive, but also constitute an unwarranted delegation of legislative power and a denial of the equal protection of
the laws. On October 9, 1937, two memorandums, signed jointly by the City Fiscal and the Solicitor-General, acting in
behalf of the People of the Philippine Islands, and by counsel for the petitioner, the Hongkong and Shanghai Banking
Corporation, one sustaining the power of the state to impugn the validity of its own laws and the other contending that Act

No. 4221 constitutes an unwarranted delegation of legislative power, were presented. Another joint memorandum was
filed by the same persons on the same day, October 9, 1937, alleging that Act No. 4221 is unconstitutional because it
denies the equal protection of the laws and constitutes an unlawful delegation of legislative power and, further, that the
whole Act is void: that the Commonwealth is not estopped from questioning the validity of its laws; that the private
prosecution may intervene in probation proceedings and may attack the probation law as unconstitutional; and that this
court may pass upon the constitutional question in prohibition proceedings.
Respondents in their answer dated August 31, 1937, as well as in their oral argument and memorandums, challenge each
and every one of the foregoing proposition raised by the petitioners.
As special defenses, respondents allege:
(1) That the present petition does not state facts sufficient in law to warrant the issuance of the writ of certiorari or
of prohibition.
(2) That the aforesaid petition is premature because the remedy sought by the petitioners is the very same
remedy prayed for by them before the trial court and was still pending resolution before the trial court when the
present petition was filed with this court.
(3) That the petitioners having themselves raised the question as to the execution of judgment before the trial
court, said trial court has acquired exclusive jurisdiction to resolve the same under the theory that its resolution
denying probation is unappealable.
(4) That upon the hypothesis that this court has concurrent jurisdiction with the Court of First Instance to decide
the question as to whether or not the execution will lie, this court nevertheless cannot exercise said jurisdiction
while the Court of First Instance has assumed jurisdiction over the same upon motion of herein petitioners
themselves.
(5) That upon the procedure followed by the herein petitioners in seeking to deprive the trial court of its jurisdiction
over the case and elevate the proceedings to this court, should not be tolerated because it impairs the authority
and dignity of the trial court which court while sitting in the probation cases is "a court of limited jurisdiction but of
great dignity."
(6) That under the supposition that this court has jurisdiction to resolve the question submitted to and pending
resolution by the trial court, the present action would not lie because the resolution of the trial court denying
probation is appealable; for although the Probation Law does not specifically provide that an applicant for
probation may appeal from a resolution of the Court of First Instance denying probation, still it is a general rule in
this jurisdiction that a final order, resolution or decision of an inferior court is appealable to the superior court.
(7) That the resolution of the trial court denying probation of herein respondent Mariano Cu Unjieng being
appealable, the same had not become final and executory for the reason that the said respondent had filed an
alternative motion for reconsideration and new trial within the requisite period of fifteen days, which motion the
trial court was able to resolve in view of the restraining order improvidently and erroneously issued by this
court.lawphi1.net
(8) That the Fiscal of the City of Manila had by implication admitted that the resolution of the trial court denying
probation is not final and unappealable when he presented his answer to the motion for reconsideration and
agreed to the postponement of the hearing of the said motion.
(9) That under the supposition that the order of the trial court denying probation is not appealable, it is incumbent
upon the accused to file an action for the issuance of the writ ofcertiorari with mandamus, it appearing that the
trial court, although it believed that the accused was entitled to probation, nevertheless denied probation for fear
of criticism because the accused is a rich man; and that, before a petition for certiorari grounded on an irregular
exercise of jurisdiction by the trial court could lie, it is incumbent upon the petitioner to file a motion for
reconsideration specifying the error committed so that the trial court could have an opportunity to correct or cure
the same.
(10) That on hypothesis that the resolution of this court is not appealable, the trial court retains its jurisdiction
within a reasonable time to correct or modify it in accordance with law and justice; that this power to alter or
modify an order or resolution is inherent in the courts and may be exercise either motu proprio or upon petition of
the proper party, the petition in the latter case taking the form of a motion for reconsideration.
(11) That on the hypothesis that the resolution of the trial court is appealable as respondent allege, said court
cannot order execution of the same while it is on appeal, for then the appeal would not be availing because the
doors of probation will be closed from the moment the accused commences to serve his sentence (Act No. 4221,
sec. 1; U.S. vs. Cook, 19 Fed. [2d], 827).
In their memorandums filed on October 23, 1937, counsel for the respondents maintain that Act No. 4221 is constitutional
because, contrary to the allegations of the petitioners, it does not constitute an undue delegation of legislative power,
does not infringe the equal protection clause of the Constitution, and does not encroach upon the pardoning power of the
Executive. In an additional memorandum filed on the same date, counsel for the respondents reiterate the view that
section 11 of Act No. 4221 is free from constitutional objections and contend, in addition, that the private prosecution may
not intervene in probation proceedings, much less question the validity of Act No. 4221; that both the City Fiscal and the
Solicitor-General are estopped from questioning the validity of the Act; that the validity of Act cannot be attacked for the
first time before this court; that probation in unavailable; and that, in any event, section 11 of the Act No. 4221 is
separable from the rest of the Act. The last memorandum for the respondent Mariano Cu Unjieng was denied for having
been filed out of time but was admitted by resolution of this court and filed anew on
November 5, 1937. This
memorandum elaborates on some of the points raised by the respondents and refutes those brought up by the petitioners.
In the scrutiny of the pleadings and examination of the various aspects of the present case, we noted that the court below,
in passing upon the merits of the application of the respondent Mariano Cu Unjieng and in denying said application
assumed the task not only of considering the merits of the application, but of passing upon the culpability of the applicant,
notwithstanding the final pronouncement of guilt by this court. (G.R. No. 41200.) Probation implies guilt be final judgment.
While a probation case may look into the circumstances attending the commission of the offense, this does not authorize
it to reverse the findings and conclusive of this court, either directly or indirectly, especially wherefrom its own admission
reliance was merely had on the printed briefs, averments, and pleadings of the parties. As already observed by this court
in Shioji vs. Harvey ([1922], 43 Phil., 333, 337), and reiterated in subsequent cases, "if each and every Court of First
Instance could enjoy the privilege of overruling decisions of the Supreme Court, there would be no end to litigation, and
judicial chaos would result." A becoming modesty of inferior courts demands conscious realization of the position that they
occupy in the interrelation and operation of the intergrated judicial system of the nation.

After threshing carefully the multifarious issues raised by both counsel for the petitioners and the respondents, this court
prefers to cut the Gordian knot and take up at once the two fundamental questions presented, namely, (1) whether or not
the constitutionality of Act No. 4221 has been properly raised in these proceedings; and (2) in the affirmative, whether or
not said Act is constitutional. Considerations of these issues will involve a discussion of certain incidental questions raised
by the parties.
To arrive at a correct conclusion on the first question, resort to certain guiding principles is necessary. It is a well-settled
rule that the constitutionality of an act of the legislature will not be determined by the courts unless that question is
properly raised and presented inappropriate cases and is necessary to a determination of the case; i.e., the issue of
constitutionality must be the very lis mota presented. (McGirr vs. Hamilton and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L.,
pp. 76, 77; 12 C. J., pp. 780-782, 783.)
The question of the constitutionality of an act of the legislature is frequently raised in ordinary actions. Nevertheless, resort
may be made to extraordinary legal remedies, particularly where the remedies in the ordinary course of law even if
available, are not plain, speedy and adequate. Thus, in Cu Unjieng vs. Patstone([1922]), 42 Phil., 818), this court held that
the question of the constitutionality of a statute may be raised by the petitioner in mandamus proceedings (see, also, 12
C. J., p. 783); and in Government of the Philippine Islands vs. Springer ([1927], 50 Phil., 259 [affirmed in Springer vs.
Government of the Philippine Islands (1928), 277 U. S., 189; 72 Law. ed., 845]), this court declared an act of the
legislature unconstitutional in an action of quo warrantobrought in the name of the Government of the Philippines. It has
also been held that the constitutionality of a statute may be questioned in habeas corpus proceedings (12 C. J., p. 783;
Bailey on Habeas Corpus, Vol. I, pp. 97, 117), although there are authorities to the contrary; on an application for
injunction to restrain action under the challenged statute (mandatory, see Cruz vs. Youngberg [1931], 56 Phil., 234); and
even on an application for preliminary injunction where the determination of the constitutional question is necessary to a
decision of the case. (12 C. J., p. 783.) The same may be said as regards prohibition and certiorari.(Yu Cong Eng vs.
Trinidad [1925], 47 Phil., 385; [1926], 271 U. S., 500; 70 Law. ed., 1059; Bell vs. First Judicial District Court [1905], 28
Nev., 280; 81 Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982; 1 L. R. A. [N. S], 843, and cases cited). The case ofYu Cong
Eng vs. Trinidad, supra, decided by this court twelve years ago was, like the present one, an original action
for certiorari and prohibition. The constitutionality of Act No. 2972, popularly known as the Chinese Bookkeeping Law, was
there challenged by the petitioners, and the constitutional issue was not met squarely by the respondent in a demurrer. A
point was raised "relating to the propriety of the constitutional question being decided in original proceedings in
prohibition." This court decided to take up the constitutional question and, with two justices dissenting, held that Act No.
2972 was constitutional. The case was elevated on writ of certiorari to the Supreme Court of the United States which
reversed the judgment of this court and held that the Act was invalid. (271 U. S., 500; 70 Law. ed., 1059.) On the question
of jurisdiction, however, the Federal Supreme Court, though its Chief Justice, said:
By the Code of Civil Procedure of the Philippine Islands, section 516, the Philippine supreme court is granted
concurrent jurisdiction in prohibition with courts of first instance over inferior tribunals or persons, and original
jurisdiction over courts of first instance, when such courts are exercising functions without or in excess of their
jurisdiction. It has been held by that court that the question of the validity of the criminal statute must usually be
raised by a defendant in the trial court and be carried regularly in review to the Supreme Court. (CadwalladerGibson Lumber Co. vs. Del Rosario, 26 Phil., 192). But in this case where a new act seriously affected numerous
persons and extensive property rights, and was likely to cause a multiplicity of actions, the Supreme Court
exercised its discretion to bring the issue to the act's validity promptly before it and decide in the interest of the
orderly administration of justice. The court relied by analogy upon the cases of Ex parte Young (209 U. S., 123;52
Law ed., 714; 13 L. R. A. [N. S.] 932; 28 Sup. Ct. Rep., 441; 14 Ann. Ca., 764; Traux vs. Raich, 239 U. S., 33; 60
Law. ed., 131; L. R. A. 1916D, 545; 36 Sup. Ct. Rep., 7; Ann. Cas., 1917B, 283; and Wilson vs. New, 243 U. S.,
332; 61 Law. ed., 755; L. R. A. 1917E, 938; 37 Sup. Ct. Rep., 298; Ann. Cas. 1918A, 1024). Although objection to
the jurisdiction was raise by demurrer to the petition, this is now disclaimed on behalf of the respondents, and
both parties ask a decision on the merits. In view of the broad powers in prohibition granted to that court under the
Island Code, we acquiesce in the desire of the parties.
The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction and directed to an
inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally
vested. (High, Extraordinary Legal Remedies, p. 705.) The general rule, although there is a conflict in the cases, is that
the merit of prohibition will not lie whether the inferior court has jurisdiction independent of the statute the constitutionality
of which is questioned, because in such cases the interior court having jurisdiction may itself determine the
constitutionality of the statute, and its decision may be subject to review, and consequently the complainant in such cases
ordinarily has adequate remedy by appeal without resort to the writ of prohibition. But where the inferior court or tribunal
derives its jurisdiction exclusively from an unconstitutional statute, it may be prevented by the writ of prohibition from
enforcing that statute. (50 C. J., 670; Ex parte Round tree [1874, 51 Ala., 42; In re Macfarland, 30 App. [D. C.], 365; Curtis
vs. Cornish [1912], 109 Me., 384; 84 A., 799; Pennington vs. Woolfolk [1880], 79 Ky., 13; State vs. Godfrey [1903], 54 W.
Va., 54; 46 S. E., 185; Arnold vs. Shields [1837], 5 Dana, 19; 30 Am. Dec., 669.)
Courts of First Instance sitting in probation proceedings derived their jurisdiction solely from Act No. 4221 which
prescribes in detailed manner the procedure for granting probation to accused persons after their conviction has become
final and before they have served their sentence. It is true that at common law the authority of the courts to suspend
temporarily the execution of the sentence is recognized and, according to a number of state courts, including those of
Massachusetts, Michigan, New York, and Ohio, the power is inherent in the courts (Commonwealth vs. Dowdican's Bail
[1874], 115 Mass., 133; People vs. Stickel [1909], 156 Mich., 557; 121 N. W., 497; People ex rel. Forsyth vs. Court of
Session [1894], 141 N. Y., 288; Weber vs. State [1898], 58 Ohio St., 616). But, in the leading case of Ex parte United
States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the
Supreme Court of the United States expressed the opinion that under the common law the power of the court was limited
to temporary suspension, and brushed aside the contention as to inherent judicial power saying, through Chief Justice
White:
Indisputably under our constitutional system the right to try offenses against the criminal laws and upon conviction
to impose the punishment provided by law is judicial, and it is equally to be conceded that, in exerting the powers
vested in them on such subject, courts inherently possess ample right to exercise reasonable, that is, judicial,
discretion to enable them to wisely exert their authority. But these concessions afford no ground for the contention
as to power here made, since it must rest upon the proposition that the power to enforce begets inherently a
discretion to permanently refuse to do so. And the effect of the proposition urged upon the distribution of powers

made by the Constitution will become apparent when it is observed that indisputable also is it that the authority to
define and fix the punishment for crime is legislative and includes the right in advance to bring within judicial
discretion, for the purpose of executing the statute, elements of consideration which would be otherwise beyond
the scope of judicial authority, and that the right to relieve from the punishment, fixed by law and ascertained
according to the methods by it provided belongs to the executive department.
Justice Carson, in his illuminating concurring opinion in the case of Director of Prisons vs. Judge of First Instance of
Cavite (29 Phil., 265), decided by this court in 1915, also reached the conclusion that the power to suspend the execution
of sentences pronounced in criminal cases is not inherent in the judicial function. "All are agreed", he said, "that in the
absence of statutory authority, it does not lie within the power of the courts to grant such suspensions." (at p. 278.) Both
petitioner and respondents are correct, therefore, when they argue that a Court of First Instance sitting in probation
proceedings is a court of limited jurisdiction. Its jurisdiction in such proceedings is conferred exclusively by Act No. 4221 of
the Philippine Legislature.
It is, of course, true that the constitutionality of a statute will not be considered on application for prohibition where the
question has not been properly brought to the attention of the court by objection of some kind (Hill vs. Tarver [1901], 130
Ala., 592; 30 S., 499; State ex rel. Kelly vs. Kirby [1914], 260 Mo., 120; 168 S. W., 746). In the case at bar, it is
unquestionable that the constitutional issue has been squarely presented not only before this court by the petitioners but
also before the trial court by the private prosecution. The respondent, Hon. Jose O Vera, however, acting as judge of the
court below, declined to pass upon the question on the ground that the private prosecutor, not being a party whose rights
are affected by the statute, may not raise said question. The respondent judge cited Cooley on Constitutional Limitations
(Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762), and McGlue vs. Essex County ([1916], 225 Mass., 59; 113 N. E., 742,
743), as authority for the proposition that a court will not consider any attack made on the constitutionality of a statute by
one who has no interest in defeating it because his rights are not affected by its operation. The respondent judge further
stated that it may not motu proprio take up the constitutional question and, agreeing with Cooley that "the power to
declare a legislative enactment void is one which the judge, conscious of the fallibility of the human judgment, will shrink
from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the
responsibility" (Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded on the assumption that Act No. 4221 is
constitutional. While therefore, the court a quo admits that the constitutional question was raised before it, it refused to
consider the question solely because it was not raised by a proper party. Respondents herein reiterates this view. The
argument is advanced that the private prosecution has no personality to appear in the hearing of the application for
probation of defendant Mariano Cu Unjieng in criminal case No. 42648 of the Court of First Instance of Manila, and hence
the issue of constitutionality was not properly raised in the lower court. Although, as a general rule, only those who are
parties to a suit may question the constitutionality of a statute involved in a judicial decision, it has been held that since the
decree pronounced by a court without jurisdiction is void, where the jurisdiction of the court depends on the validity of the
statute in question, the issue of the constitutionality will be considered on its being brought to the attention of the court by
persons interested in the effect to be given the statute.(12 C. J., sec. 184, p. 766.) And, even if we were to concede that
the issue was not properly raised in the court below by the proper party, it does not follow that the issue may not be here
raised in an original action of certiorari and prohibitions. It is true that, as a general rule, the question of constitutionality
must be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be raised at the trial,
and if not raised in the trial court, it will not considered on appeal. (12 C. J., p. 786. See, also,Cadwallader-Gibson Lumber
Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule admits of exceptions. Courts, in the
exercise of sounds discretion, may determine the time when a question affecting the constitutionality of a statute should
be presented. (In re Woolsey [1884], 95 N. Y., 135, 144.) Thus, in criminal cases, although there is a very sharp conflict of
authorities, it is said that the question may be raised for the first time at any stage of the proceedings, either in the trial
court or on appeal. (12 C. J., p. 786.) Even in civil cases, it has been held that it is the duty of a court to pass on the
constitutional question, though raised for the first time on appeal, if it appears that a determination of the question is
necessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co., [1910], 136 ky., 674; 124 S. W., 892;
Lohmeyer vs. St. Louis Cordage Co. [1908], 214 Mo., 685; 113 S. W. 1108; Carmody vs. St. Louis Transit Co., [1905],
188 Mo., 572; 87 S. W., 913.) And it has been held that a constitutional question will be considered by an appellate court
at any time, where it involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to
the power of this court to consider the constitutional question raised for the first time before this court in these
proceedings, we turn again and point with emphasis to the case of Yu Cong Eng vs. Trinidad, supra. And on the
hypotheses that the Hongkong & Shanghai Banking Corporation, represented by the private prosecution, is not the proper
party to raise the constitutional question here a point we do not now have to decide we are of the opinion that the
People of the Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila, is such a proper party
in the present proceedings. The unchallenged rule is that the person who impugns the validity of a statute must have a
personal and substantial interest in the case such that he has sustained, or will sustained, direct injury as a result of its
enforcement. It goes without saying that if Act No. 4221 really violates the constitution, the People of the Philippines, in
whose name the present action is brought, has a substantial interest in having it set aside. Of grater import than the
damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the
enforcement of an invalid statute. Hence, the well-settled rule that the state can challenge the validity of its own laws. In
Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the
Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature unconstitutional in
an action instituted in behalf of the Government of the Philippines. In Attorney General vs. Perkins ([1889], 73 Mich., 303,
311, 312; 41 N. W. 426, 428, 429), the State of Michigan, through its Attorney General, instituted quo warranto
proceedings to test the right of the respondents to renew a mining corporation, alleging that the statute under which the
respondents base their right was unconstitutional because it impaired the obligation of contracts. The capacity of the chief
law officer of the state to question the constitutionality of the statute was though, as a general rule, only those who are
parties to a suit may question the constitutionality of a statute involved in a judicial decision, it has been held that since the
decree pronounced by a court without jurisdiction in void, where the jurisdiction of the court depends on the validity of the
statute in question, the issue of constitutionality will be considered on its being brought to the attention of the court by
persons interested in the effect to begin the statute. (12 C.J., sec. 184, p. 766.) And, even if we were to concede that the
issue was not properly raised in the court below by the proper party, it does not follow that the issue may not be here
raised in an original action of certiorari and prohibition. It is true that, as a general rule, the question of constitutionality
must be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be raised a the trial,
and if not raised in the trial court, it will not be considered on appeal. (12 C.J., p. 786. See, also, Cadwallader-Gibson

Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule admits of exceptions. Courts,
in the exercise of sound discretion, may determine the time when a question affecting the constitutionality of a statute
should be presented. (In re Woolsey [19884], 95 N.Y., 135, 144.) Thus, in criminal cases, although there is a very sharp
conflict of authorities, it is said that the question may be raised for the first time at any state of the proceedings, either in
the trial court or on appeal. (12 C.J., p. 786.) Even in civil cases, it has been held that it is the duty of a court to pass on
the constitutional question, though raised for first time on appeal, if it appears that a determination of the question is
necessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910], 136 Ky., 674; 124 S. W., 892;
Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo. 685; 113 S. W., 1108; Carmody vs. St. Louis Transit Co. [1905],
188 Mo., 572; 87 S. W., 913.) And it has been held that a constitutional question will be considered by an appellate court
at any time, where it involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to
the power of this court to consider the constitutional question raised for the first time before this court in these
proceedings, we turn again and point with emphasis to the case of Yu Cong Eng. vs. Trinidad, supra. And on the
hypothesis that the Hongkong & Shanghai Banking Corporation, represented by the private prosecution, is not the proper
party to raise the constitutional question here a point we do not now have to decide we are of the opinion that the
People of the Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila, is such a proper party
in the present proceedings. The unchallenged rule is that the person who impugns the validity of a statute must have a
personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its
enforcement. It goes without saying that if Act No. 4221 really violates the Constitution, the People of the Philippines, in
whose name the present action is brought, has a substantial interest in having it set aside. Of greater import than the
damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the
enforcement of an invalid statute. Hence, the well-settled rule that the state can challenge the validity of its own laws. In
Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the
Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature unconstitutional in
an action instituted in behalf of the Government of the Philippines. In Attorney General vs. Perkings([1889], 73 Mich., 303,
311, 312; 41 N.W., 426, 428, 429), the State of Michigan, through its Attorney General, instituted quo warranto
proceedings to test the right of the respondents to renew a mining corporation, alleging that the statute under which the
respondents base their right was unconstitutional because it impaired the obligation of contracts. The capacity of the chief
law officer of the state to question the constitutionality of the statute was itself questioned. Said the Supreme Court of
Michigan, through Champlin, J.:
. . . The idea seems to be that the people are estopped from questioning the validity of a law enacted by their
representatives; that to an accusation by the people of Michigan of usurpation their government, a statute enacted
by the people of Michigan is an adequate answer. The last proposition is true, but, if the statute relied on in
justification is unconstitutional, it is statute only in form, and lacks the force of law, and is of no more saving effect
to justify action under it than if it had never been enacted. The constitution is the supreme law, and to its behests
the courts, the legislature, and the people must bow . . . The legislature and the respondents are not the only
parties in interest upon such constitutional questions. As was remarked by Mr. Justice Story, in speaking of an
acquiescence by a party affected by an unconstitutional act of the legislature: "The people have a deep and
vested interest in maintaining all the constitutional limitations upon the exercise of legislative powers." (Allen vs.
Mckeen, 1 Sum., 314.)
In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action (mandamus) was brought by the AttorneyGeneral of Kansas to test the constitutionality of a statute of the state. In disposing of the question whether or not the
state may bring the action, the Supreme Court of Kansas said:
. . . the state is a proper party indeed, the proper party to bring this action. The state is always interested
where the integrity of its Constitution or statutes is involved.
"It has an interest in seeing that the will of the Legislature is not disregarded, and need not, as an
individual plaintiff must, show grounds of fearing more specific injury. (State vs. Kansas City 60
Kan., 518 [57 Pac., 118])." (State vs. Lawrence, 80 Kan., 707; 103 Pac., 839.)
Where the constitutionality of a statute is in doubt the state's law officer, its Attorney-General, or county attorney,
may exercise his bet judgment as to what sort of action he will bring to have the matter determined, either by quo
warranto to challenge its validity (State vs. Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662), by mandamus
to compel obedience to its terms (State vs. Dolley, 82 Kan., 533; 108 Pac., 846), or by injunction to restrain
proceedings under its questionable provisions (State ex rel. vs. City of Neodesha, 3 Kan. App., 319; 45 Pac.,
122).
Other courts have reached the same conclusion (See State vs. St. Louis S. W. Ry. Co. [1917], 197 S. W., 1006; State vs.
S.H. Kress & Co. [1934], 155 S., 823; State vs. Walmsley [1935], 181 La., 597; 160 S., 91; State vs. Board of County
Comr's [1934], 39 Pac. [2d], 286; First Const. Co. of Brooklyn vs. State [1917], 211 N.Y., 295; 116 N.E., 1020; Bush vs.
State {1918], 187 Ind., 339; 119 N.E., 417; State vs. Watkins [1933], 176 La., 837; 147 S., 8, 10, 11). In the case last
cited, the Supreme Court of Luisiana said:
It is contended by counsel for Herbert Watkins that a district attorney, being charged with the duty of enforcing the
laws, has no right to plead that a law is unconstitutional. In support of the argument three decisions are cited, viz.:
State ex rel. Hall, District Attorney, vs. Judge of Tenth Judicial District (33 La. Ann., 1222); State ex rel. Nicholls,
Governor vs. Shakespeare, Mayor of New Orleans (41 Ann., 156; 6 So., 592); and State ex rel., Banking Co., etc.
vs. Heard, Auditor (47 La. Ann., 1679; 18 So., 746; 47 L. R. A., 512). These decisions do not forbid a district
attorney to plead that a statute is unconstitutional if he finds if in conflict with one which it is his duty to enforce. In
State ex rel. Hall, District Attorney, vs. Judge, etc., the ruling was the judge should not, merely because he
believed a certain statute to be unconstitutional forbid the district attorney to file a bill of information charging a
person with a violation of the statute. In other words, a judge should not judicially declare a statute
unconstitutional until the question of constitutionality is tendered for decision, and unless it must be decided in
order to determine the right of a party litigant. Stateex rel. Nicholls, Governor, etc., is authority for the proposition
merely that an officer on whom a statute imposes the duty of enforcing its provisions cannot avoid the duty upon
the ground that he considers the statute unconstitutional, and hence in enforcing the statute he is immune from
responsibility if the statute be unconstitutional. State ex rel. Banking Co., etc., is authority for the proposition
merely that executive officers, e.g., the state auditor and state treasurer, should not decline to perform ministerial
duties imposed upon them by a statute, on the ground that they believe the statute is unconstitutional.

It is the duty of a district attorney to enforce the criminal laws of the state, and, above all, to support the
Constitution of the state. If, in the performance of his duty he finds two statutes in conflict with each other, or one
which repeals another, and if, in his judgment, one of the two statutes is unconstitutional, it is his duty to enforce
the other; and, in order to do so, he is compelled to submit to the court, by way of a plea, that one of the statutes
is unconstitutional. If it were not so, the power of the Legislature would be free from constitutional limitations in the
enactment of criminal laws.
The respondents do not seem to doubt seriously the correctness of the general proposition that the state may impugn the
validity of its laws. They have not cited any authority running clearly in the opposite direction. In fact, they appear to have
proceeded on the assumption that the rule as stated is sound but that it has no application in the present case, nor may it
be invoked by the City Fiscal in behalf of the People of the Philippines, one of the petitioners herein, the principal reasons
being that the validity before this court, that the City Fiscal is estopped from attacking the validity of the Act and, not
authorized challenge the validity of the Act in its application outside said city. (Additional memorandum of respondents,
October 23, 1937, pp. 8,. 10, 17 and 23.)
The mere fact that the Probation Act has been repeatedly relied upon the past and all that time has not been attacked as
unconstitutional by the Fiscal of Manila but, on the contrary, has been impliedly regarded by him as constitutional, is no
reason for considering the People of the Philippines estopped from nor assailing its validity. For courts will pass upon a
constitutional questions only when presented before it in bona fide cases for determination, and the fact that the question
has not been raised before is not a valid reason for refusing to allow it to be raised later. The fiscal and all others are
justified in relying upon the statute and treating it as valid until it is held void by the courts in proper cases.
It remains to consider whether the determination of the constitutionality of Act No. 4221 is necessary to the resolution of
the instant case. For, ". . . while the court will meet the question with firmness, where its decision is indispensable, it is the
part of wisdom, and just respect for the legislature, renders it proper, to waive it, if the case in which it arises, can be
decided on other points." (Ex parte Randolph [1833], 20 F. Cas. No. 11, 558; 2 Brock., 447. Vide, also Hoover vs. wood
[1857], 9 Ind., 286, 287.) It has been held that the determination of a constitutional question is necessary whenever it is
essential to the decision of the case (12 C. J., p. 782, citing Long Sault Dev. Co. vs. Kennedy [1913], 158 App. Div., 398;
143 N. Y. Supp., 454 [aff. 212 N.Y., 1: 105 N. E., 849; Ann. Cas. 1915D, 56; and app dism 242 U.S., 272]; Hesse vs.
Ledesma, 7 Porto Rico Fed., 520; Cowan vs. Doddridge, 22 Gratt [63 Va.], 458; Union Line Co., vs. Wisconsin R.
Commn., 146 Wis., 523; 129 N. W., 605), as where the right of a party is founded solely on a statute the validity of which
is attacked. (12 C.J., p. 782, citing Central Glass Co. vs. Niagrara F. Ins. Co., 131 La., 513; 59 S., 972; Cheney vs.
Beverly, 188 Mass., 81; 74 N.E., 306). There is no doubt that the respondent Cu Unjieng draws his privilege to probation
solely from Act No. 4221 now being assailed.
Apart from the foregoing considerations, that court will also take cognizance of the fact that the Probation Act is a new
addition to our statute books and its validity has never before been passed upon by the courts; that may persons accused
and convicted of crime in the City of Manila have applied for probation; that some of them are already on probation; that
more people will likely take advantage of the Probation Act in the future; and that the respondent Mariano Cu Unjieng has
been at large for a period of about four years since his first conviction. All wait the decision of this court on the
constitutional question. Considering, therefore, the importance which the instant case has assumed and to prevent
multiplicity of suits, strong reasons of public policy demand that the constitutionality of Act No. 4221 be now resolved. (Yu
Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U.S., 500; 70 Law. ed., 1059. See 6 R.C.L., pp. 77, 78; People
vs. Kennedy [1913], 207 N.Y., 533; 101 N.E., 442, 444; Ann. Cas. 1914C, 616; Borginis vs. Falk Co. [1911], 147 Wis.,
327; 133 N.W., 209, 211; 37 L.R.A. [N.S.] 489; Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu Cong
Eng vs. Trinidad, supra, an analogous situation confronted us. We said: "Inasmuch as the property and personal rights of
nearly twelve thousand merchants are affected by these proceedings, and inasmuch as Act No. 2972 is a new law not yet
interpreted by the courts, in the interest of the public welfare and for the advancement of public policy, we have
determined to overrule the defense of want of jurisdiction in order that we may decide the main issue. We have here an
extraordinary situation which calls for a relaxation of the general rule." Our ruling on this point was sustained by the
Supreme Court of the United States. A more binding authority in support of the view we have taken can not be found.
We have reached the conclusion that the question of the constitutionality of Act No. 4221 has been properly raised. Now
for the main inquiry: Is the Act unconstitutional?
Under a doctrine peculiarly American, it is the office and duty of the judiciary to enforce the Constitution. This court, by
clear implication from the provisions of section 2, subsection 1, and section 10, of Article VIII of the Constitution, may
declare an act of the national legislature invalid because in conflict with the fundamental lay. It will not shirk from its sworn
duty to enforce the Constitution. And, in clear cases, it will not hesitate to give effect to the supreme law by setting aside a
statute in conflict therewith. This is of the essence of judicial duty.
This court is not unmindful of the fundamental criteria in cases of this nature that all reasonable doubts should be resolved
in favor of the constitutionality of a statute. An act of the legislature approved by the executive, is presumed to be within
constitutional limitations. The responsibility of upholding the Constitution rests not on the courts alone but on the
legislature as well. "The question of the validity of every statute is first determined by the legislative department of the
government itself." (U.S. vs. Ten Yu [1912], 24 Phil., 1, 10; Case vs. Board of Health and Heiser [1913], 24 Phil., 250,
276; U.S. vs. Joson [1913], 26 Phil., 1.) And a statute finally comes before the courts sustained by the sanction of the
executive. The members of the Legislature and the Chief Executive have taken an oath to support the Constitution and it
must be presumed that they have been true to this oath and that in enacting and sanctioning a particular law they did not
intend to violate the Constitution. The courts cannot but cautiously exercise its power to overturn the solemn declarations
of two of the three grand departments of the governments. (6 R.C.L., p. 101.) Then, there is that peculiar political
philosophy which bids the judiciary to reflect the wisdom of the people as expressed through an elective Legislature and
an elective Chief Executive. It follows, therefore, that the courts will not set aside a law as violative of the Constitution
except in a clear case. This is a proposition too plain to require a citation of authorities.
One of the counsel for respondents, in the course of his impassioned argument, called attention to the fact that the
President of the Philippines had already expressed his opinion against the constitutionality of the Probation Act, adverting
that as to the Executive the resolution of this question was a foregone conclusion. Counsel, however, reiterated his
confidence in the integrity and independence of this court. We take notice of the fact that the President in his message
dated September 1, 1937, recommended to the National Assembly the immediate repeal of the Probation Act (No. 4221);
that this message resulted in the approval of Bill No. 2417 of the Nationality Assembly repealing the probation Act, subject
to certain conditions therein mentioned; but that said bill was vetoed by the President on September 13, 1937, much
against his wish, "to have stricken out from the statute books of the Commonwealth a law . . . unfair and very likely

unconstitutional." It is sufficient to observe in this connection that, in vetoing the bill referred to, the President exercised his
constitutional prerogative. He may express the reasons which he may deem proper for taking such a step, but his reasons
are not binding upon us in the determination of actual controversies submitted for our determination. Whether or not the
Executive should express or in any manner insinuate his opinion on a matter encompassed within his broad constitutional
power of veto but which happens to be at the same time pending determination in this court is a question of propriety for
him exclusively to decide or determine. Whatever opinion is expressed by him under these circumstances, however,
cannot sway our judgment on way or another and prevent us from taking what in our opinion is the proper course of action
to take in a given case. It if is ever necessary for us to make any vehement affirmance during this formative period of our
political history, it is that we are independent of the Executive no less than of the Legislative department of our
government independent in the performance of our functions, undeterred by any consideration, free from politics,
indifferent to popularity, and unafraid of criticism in the accomplishment of our sworn duty as we see it and as we
understand it.
The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That said Act encroaches upon the
pardoning power of the Executive; (2) that its constitutes an undue delegation of legislative power and (3) that it denies
the equal protection of the laws.
1. Section 21 of the Act of Congress of August 29, 1916, commonly known as the Jones Law, in force at the time of the
approval of Act No. 4221, otherwise known as the Probation Act, vests in the Governor-General of the Philippines "the
exclusive power to grant pardons and reprieves and remit fines and forfeitures". This power is now vested in the President
of the Philippines. (Art. VII, sec. 11, subsec. 6.) The provisions of the Jones Law and the Constitution differ in some
respects. The adjective "exclusive" found in the Jones Law has been omitted from the Constitution. Under the Jones Law,
as at common law, pardon could be granted any time after the commission of the offense, either before or after conviction
(Vide Constitution of the United States, Art. II, sec. 2;In re Lontok [1922], 43 Phil., 293). The Governor-General of the
Philippines was thus empowered, like the President of the United States, to pardon a person before the facts of the case
were fully brought to light. The framers of our Constitution thought this undesirable and, following most of the state
constitutions, provided that the pardoning power can only be exercised "after conviction". So, too, under the new
Constitution, the pardoning power does not extend to "cases of impeachment". This is also the rule generally followed in
the United States (Vide Constitution of the United States, Art. II, sec. 2). The rule in England is different. There, a royal
pardon can not be pleaded in bar of an impeachment; "but," says Blackstone, "after the impeachment has been solemnly
heard and determined, it is not understood that the king's royal grace is further restrained or abridged." (Vide, Ex
parte Wells [1856], 18 How., 307; 15 Law. ed., 421; Com. vs. Lockwood [1872], 109 Mass., 323; 12 Am. Rep., 699;
Sterling vs. Drake [1876], 29 Ohio St., 457; 23 am. Rep., 762.) The reason for the distinction is obvious. In England,
Judgment on impeachment is not confined to mere "removal from office and disqualification to hold and enjoy any office of
honor, trust, or profit under the Government" (Art. IX, sec. 4, Constitution of the Philippines) but extends to the whole
punishment attached by law to the offense committed. The House of Lords, on a conviction may, by its sentence, inflict
capital punishment, perpetual banishment, perpetual banishment, fine or imprisonment, depending upon the gravity of the
offense committed, together with removal from office and incapacity to hold office. (Com. vs. Lockwood, supra.) Our
Constitution also makes specific mention of "commutation" and of the power of the executive to impose, in the pardons he
may grant, such conditions, restrictions and limitations as he may deem proper. Amnesty may be granted by the President
under the Constitution but only with the concurrence of the National Assembly. We need not dwell at length on the
significance of these fundamental changes. It is sufficient for our purposes to state that the pardoning power has
remained essentially the same. The question is: Has the pardoning power of the Chief Executive under the Jones Law
been impaired by the Probation Act?
As already stated, the Jones Law vests the pardoning power exclusively in the Chief Executive. The exercise of the power
may
not,
therefore,
be
vested
in
anyone
else.
". . . The benign prerogative of mercy reposed in the executive cannot be taken away nor fettered by any legislative
restrictions, nor can like power be given by the legislature to any other officer or authority. The coordinate departments of
government have nothing to do with the pardoning power, since no person properly belonging to one of the departments
can exercise any powers appertaining to either of the others except in cases expressly provided for by the constitution."
(20 R.C.L., pp., , and cases cited.) " . . . where the pardoning power is conferred on the executive without express or
implied limitations, the grant is exclusive, and the legislature can neither exercise such power itself nor delegate it
elsewhere, nor interfere with or control the proper exercise thereof, . . ." (12 C.J., pp. 838, 839, and cases cited.) If Act No.
4221, then, confers any pardoning power upon the courts it is for that reason unconstitutional and void. But does it?
In the famous Killitts decision involving an embezzlement case, the Supreme Court of the United States ruled in 1916 that
an order indefinitely suspending sentenced was void. (Ex parte United States [1916], 242 U.S., 27; 61 Law. ed., 129;
L.R.A. 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.) Chief Justice White, after an exhaustive review of the
authorities, expressed the opinion of the court that under the common law the power of the court was limited to temporary
suspension and that the right to suspend sentenced absolutely and permanently was vested in the executive branch of
the government and not in the judiciary. But, the right of Congress to establish probation by statute was conceded. Said
the court through its Chief Justice: ". . . and so far as the future is concerned, that is, the causing of the imposition of
penalties as fixed to be subject, by probation legislation or such other means as the legislative mind may devise, to such
judicial discretion as may be adequate to enable courts to meet by the exercise of an enlarged but wise discretion the
infinite variations which may be presented to them for judgment, recourse must be had Congress whose legislative power
on the subject is in the very nature of things adequately complete." (Quoted in Riggs vs. United States [1926], 14 F. [2d],
5, 6.) This decision led the National Probation Association and others to agitate for the enactment by Congress of a
federal probation law. Such action was finally taken on March 4, 1925 (chap. 521, 43 Stat. L. 159, U.S.C. title 18, sec.
724). This was followed by an appropriation to defray the salaries and expenses of a certain number of probation officers
chosen by civil service. (Johnson, Probation for Juveniles and Adults, p. 14.)
In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72 Law. ed., 309), the Supreme Court of the
United States, through Chief Justice Taft, held that when a person sentenced to imprisonment by a district court has
begun to serve his sentence, that court has no power under the Probation Act of March 4, 1925 to grant him probation
even though the term at which sentence was imposed had not yet expired. In this case of Murray, the constitutionality of
the probation Act was not considered but was assumed. The court traced the history of the Act and quoted from the report
of the Committee on the Judiciary of the United States House of Representatives (Report No. 1377, 68th Congress, 2
Session) the following statement:

Prior to the so-called Killitts case, rendered in December, 1916, the district courts exercised a form of probation
either, by suspending sentence or by placing the defendants under state probation officers or volunteers. In this
case, however (Ex parte United States, 242 U.S., 27; 61 L. Ed., 129; L.R.A., 1917E, 1178; 37 Sup. Ct. Rep., 72
Ann. Cas. 1917B, 355), the Supreme Court denied the right of the district courts to suspend sentenced. In the
same opinion the court pointed out the necessity for action by Congress if the courts were to exercise probation
powers in the future . . .
Since this decision was rendered, two attempts have been made to enact probation legislation. In 1917, a bill was
favorably reported by the Judiciary Committee and passed the House. In 1920, the judiciary Committee again
favorably reported a probation bill to the House, but it was never reached for definite action.
If this bill is enacted into law, it will bring the policy of the Federal government with reference to its treatment of
those convicted of violations of its criminal laws in harmony with that of the states of the Union. At the present
time every state has a probation law, and in all but twelve states the law applies both to adult and juvenile
offenders. (see, also, Johnson, Probation for Juveniles and Adults [1928], Chap. I.)
The constitutionality of the federal probation law has been sustained by inferior federal courts. In Riggs vs. United
States supra, the Circuit Court of Appeals of the Fourth Circuit said:
Since the passage of the Probation Act of March 4, 1925, the questions under consideration have been reviewed
by the Circuit Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and the constitutionality of the act fully
sustained, and the same held in no manner to encroach upon the pardoning power of the President. This case will
be found to contain an able and comprehensive review of the law applicable here. It arose under the act we have
to consider, and to it and the authorities cited therein special reference is made (Nix vs. James, 7 F. [2d], 590,
594), as is also to a decision of the Circuit Court of Appeals of the Seventh Circuit (Kriebel vs. U.S., 10 F. [2d],
762), likewise construing the Probation Act.
We have seen that in 1916 the Supreme Court of the United States; in plain and unequivocal language, pointed to
Congress as possessing the requisite power to enact probation laws, that a federal probation law as actually enacted in
1925, and that the constitutionality of the Act has been assumed by the Supreme Court of the United States in 1928 and
consistently sustained by the inferior federal courts in a number of earlier cases.
We are fully convinced that the Philippine Legislature, like the Congress of the United States, may legally enact a
probation law under its broad power to fix the punishment of any and all penal offenses. This conclusion is supported b y
other authorities. In Ex parte Bates ([1915], 20 N. M., 542; L.R.A. 1916A, 1285; 151 Pac., 698, the court said: "It is clearly
within the province of the Legislature to denominate and define all classes of crime, and to prescribe for each a minimum
and maximum punishment." And in State vs. Abbott ([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann. Cas.
1912B, 1189), the court said: "The legislative power to set punishment for crime is very broad, and in the exercise of this
power the general assembly may confer on trial judges, if it sees fit, the largest discretion as to the sentence to be
imposed, as to the beginning and end of the punishment and whether it should be certain or indeterminate or conditional."
(Quoted in State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69.) Indeed, the Philippine Legislature has defined all crimes
and fixed the penalties for their violation. Invariably, the legislature has demonstrated the desire to vest in the courts
particularly the trial courts large discretion in imposing the penalties which the law prescribes in particular cases. It is
believed that justice can best be served by vesting this power in the courts, they being in a position to best determine the
penalties which an individual convict, peculiarly circumstanced, should suffer. Thus, while courts are not allowed to refrain
from imposing a sentence merely because, taking into consideration the degree of malice and the injury caused by the
offense, the penalty provided by law is clearly excessive, the courts being allowed in such case to submit to the Chief
Executive, through the Department of Justice, such statement as it may deem proper (see art. 5, Revised Penal Code), in
cases where both mitigating and aggravating circumstances are attendant in the commission of a crime and the law
provides for a penalty composed of two indivisible penalties, the courts may allow such circumstances to offset one
another in consideration of their number and importance, and to apply the penalty according to the result of such
compensation. (Art. 63, rule 4, Revised Penal Code; U.S. vs. Reguera and Asuategui [1921], 41 Phil., 506.) Again, article
64, paragraph 7, of the Revised Penal Code empowers the courts to determine, within the limits of each periods, in case
the penalty prescribed by law contains three periods, the extent of the evil produced by the crime. In the imposition of
fines, the courts are allowed to fix any amount within the limits established by law, considering not only the mitigating and
aggravating circumstances, but more particularly the wealth or means of the culprit. (Art. 66, Revised Penal Code.) Article
68, paragraph 1, of the same Code provides that "a discretionary penalty shall be imposed" upon a person under fifteen
but over nine years of age, who has not acted without discernment, but always lower by two degrees at least than that
prescribed by law for the crime which he has committed. Article 69 of the same Code provides that in case of "incomplete
self-defense", i.e., when the crime committed is not wholly excusable by reason of the lack of some of the conditions
required to justify the same or to exempt from criminal liability in the several cases mentioned in article 11 and 12 of the
Code, "the courts shall impose the penalty in the period which may be deemed proper, in view of the number and nature
of the conditions of exemption present or lacking." And, in case the commission of what are known as "impossible"
crimes, "the court, having in mind the social danger and the degree of criminality shown by the offender," shall impose
upon him either arresto mayor or a fine ranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.)
Under our Revised Penal Code, also, one-half of the period of preventive imprisonment is deducted form the entire term
of imprisonment, except in certain cases expressly mentioned (art. 29); the death penalty is not imposed when the guilty
person is more than seventy years of age, or where upon appeal or revision of the case by the Supreme Court, all the
members thereof are not unanimous in their voting as to the propriety of the imposition of the death penalty (art. 47, see
also, sec. 133, Revised Administrative Code, as amended by Commonwealth Act No. 3); the death sentence is not to be
inflicted upon a woman within the three years next following the date of the sentence or while she is pregnant, or upon
any person over seventy years of age (art. 83); and when a convict shall become insane or an imbecile after final
sentence has been pronounced, or while he is serving his sentenced, the execution of said sentence shall be suspended
with regard to the personal penalty during the period of such insanity or imbecility (art. 79).
But the desire of the legislature to relax what might result in the undue harshness of the penal laws is more clearly
demonstrated in various other enactments, including the probation Act. There is the Indeterminate Sentence Law enacted
in 1933 as Act No. 4103 and subsequently amended by Act No. 4225, establishing a system of parole (secs. 5 to 100 and
granting the courts large discretion in imposing the penalties of the law. Section 1 of the law as amended provides;
"hereafter, in imposing a prison sentence for an offenses punished by the Revised Penal Code, or its amendments, the
court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of
the attending circumstances, could be properly imposed under the rules of the said Code, and to a minimum which shall

be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished
by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall
not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the
same." Certain classes of convicts are, by section 2 of the law, excluded from the operation thereof. The Legislature has
also enacted the Juvenile Delinquency Law (Act No. 3203) which was subsequently amended by Act No. 3559. Section 7
of the original Act and section 1 of the amendatory Act have become article 80 of the Revised Penal Code, amended by
Act No. 4117 of the Philippine Legislature and recently reamended by Commonwealth Act No. 99 of the National
Assembly. In this Act is again manifested the intention of the legislature to "humanize" the penal laws. It allows, in effect,
the modification in particular cases of the penalties prescribed by law by permitting the suspension of the execution of the
judgment in the discretion of the trial court, after due hearing and after investigation of the particular circumstances of the
offenses, the criminal record, if any, of the convict, and his social history. The Legislature has in reality decreed that in
certain cases no punishment at all shall be suffered by the convict as long as the conditions of probation are faithfully
observed. It this be so, then, it cannot be said that the Probation Act comes in conflict with the power of the Chief
Executive to grant pardons and reprieves, because, to use the language of the Supreme Court of New Mexico, "the
element of punishment or the penalty for the commission of a wrong, while to be declared by the courts as a judicial
function under and within the limits of law as announced by legislative acts, concerns solely the procedure and conduct of
criminal causes, with which the executive can have nothing to do." (Ex parte Bates, supra.) In Williams vs. State ([1926],
162 Ga., 327; 133 S.E., 843), the court upheld the constitutionality of the Georgia probation statute against the contention
that it attempted to delegate to the courts the pardoning power lodged by the constitution in the governor alone is vested
with the power to pardon after final sentence has been imposed by the courts, the power of the courts to imposed any
penalty which may be from time to time prescribed by law and in such manner as may be defined cannot be questioned."
We realize, of course, the conflict which the American cases disclose. Some cases hold it unlawful for the legislature to
vest in the courts the power to suspend the operation of a sentenced, by probation or otherwise, as to do so would
encroach upon the pardoning power of the executive. (In re Webb [1895], 89 Wis., 354; 27 L.R.A., 356; 46 Am. St. Rep.,
846; 62 N.W., 177; 9 Am. Crim., Rep., 702; State ex rel. Summerfield vs. Moran [1919], 43 Nev., 150; 182 Pac., 927; Ex
parte Clendenning [1908], 22 Okla., 108; 1 Okla. Crim. Rep., 227; 19 L.R.A. [N.S.], 1041; 132 Am. St. Rep., 628; 97 Pac.,
650; People vs. Barrett [1903], 202 Ill, 287; 67 N.E., 23; 63 L.R.A., 82; 95 Am. St. Rep., 230; Snodgrass vs. State [1912],
67 Tex. Crim. Rep., 615; 41 L. R. A. [N. S.], 1144; 150 S. W., 162;Ex parte Shelor [1910], 33 Nev., 361;111 Pac., 291;
Neal vs. State [1898], 104 Ga., 509; 42 L. R. A., 190; 69 Am. St. Rep., 175; 30 S. E. 858; State ex rel. Payne vs.
Anderson [1921], 43 S. D., 630; 181 N. W., 839; People vs. Brown, 54 Mich., 15; 19 N. W., 571; States vs. Dalton [1903],
109 Tenn., 544; 72 S. W., 456.)
Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F. [2d], 590; Archer vs. Snook [1926; D. C.], 10
F. [2d], 567; Riggs. vs. United States [1926; C. C. A. 4th], 14]) [2d], 5; Murphy vs. States [1926], 171 Ark., 620; 286 S. W.,
871; 48 A. L. R., 1189; Re Giannini [1912], 18 Cal. App., 166; 122 Pac., 831; Re Nachnaber [1928], 89 Cal. App., 530;
265 Pac., 392; Ex parte De Voe [1931], 114 Cal. App., 730; 300 Pac., 874; People vs. Patrick [1897], 118 Cal., 332; 50
Pac., 425; Martin vs. People [1917], 69 Colo., 60; 168 Pac., 1171; Belden vs. Hugo [1914], 88 Conn., 50; 91 A., 369, 370,
371; Williams vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs. Heise [1913], 257 Ill., 443; 100 N. E., 1000;
Parker vs. State [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R. A., 859; St. Hillarie, Petitioner [1906], 101 Me., 522; 64 Atl.,
882; People vs. Stickle [1909], 156 Mich., 557; 121 N. W., 497; State vs. Fjolander [1914], 125 Minn., 529; State ex rel.
Bottomnly vs. District Court [1925], 73 Mont., 541; 237 Pac., 525; State vs. Everitt [1913], 164 N. C., 399; 79 S. E., 274;
47 L. R. A. [N. S.], 848; State ex rel. Buckley vs. Drew [1909], 75 N. H., 402; 74 Atl., 875; State vs. Osborne [1911], 79 N.
J. Eq., 430; 82 Atl. 424; Ex parteBates [1915], 20 N. M., 542; L. R. A., 1916 A. 1285; 151 Pac., 698; People vs. ex rel.
Forsyth vs. Court of Session [1894], 141 N. Y., 288; 23 L. R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep., 675; People ex
rel. Sullivan vs. Flynn [1907], 55 Misc., 639; 106 N. Y. Supp., 928; People vs. Goodrich [1914], 149 N. Y. Supp., 406;
Moore vs. Thorn [1935], 245 App. Div., 180; 281 N. Y. Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A., 1915C, 1169; 149
N. W., 568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P., 781; State vs. Teal [1918], 108 S. C., 455; 95 S. E.,
69; State vs. Abbot [1910], 87 S. C., 466; 33 L.R.A., [N. S.], 112; 70 S. E., 6; Ann. Cas., 1912B, 1189; Fults vs. States
[1854],34 Tenn., 232; Woods vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State [1814], 130 Tenn., 100;
169 S. W., 558; Baker vs. State [1913],70 Tex., Crim. Rep., 618; 158 S. W., 998; Cook vs. State [1914], 73 Tex. Crim.
Rep., 548; 165 S. W., 573; King vs. State [1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122
Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 211; 54 S. W. [2d], 127; Re Hall
[1927], 100 Vt., 197; 136 A., 24; Richardson vs. Com. [1921], 131 Va., 802; 109 S.E., 460; State vs. Mallahan [1911], 65
Wash., 287; 118 Pac., 42; State ex rel. Tingstand vs. Starwich [1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393;
396.) We elect to follow this long catena of authorities holding that the courts may be legally authorized by the legislature
to suspend sentence by the establishment of a system of probation however characterized. State ex rel. Tingstand vs.
Starwich ([1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved particular mention. In that case, a statute
enacted in 1921 which provided for the suspension of the execution of a sentence until otherwise ordered by the court,
and required that the convicted person be placed under the charge of a parole or peace officer during the term of such
suspension, on such terms as the court may determine, was held constitutional and as not giving the court a power in
violation of the constitutional provision vesting the pardoning power in the chief executive of the state. (Vide,
also, Re Giannini [1912], 18 Cal App., 166; 122 Pac., 831.)
Probation and pardon are not coterminous; nor are they the same. They are actually district and different from each other,
both in origin and in nature. In People ex rel. Forsyth vs. Court of Sessions ([1894], 141 N. Y., 288, 294; 36 N. E., 386,
388; 23 L. R. A., 856; 15 Am. Crim. Rep., 675), the Court of Appeals of New York said:
. . . The power to suspend sentence and the power to grant reprieves and pardons, as understood when the
constitution was adopted, are totally distinct and different in their nature. The former was always a part of the
judicial power; the latter was always a part of the executive power. The suspension of the sentence simply
postpones the judgment of the court temporarily or indefinitely, but the conviction and liability following it, and the
civil disabilities, remain and become operative when judgment is rendered. A pardon reaches both the
punishment prescribed for the offense and the guilt of the offender. It releases the punishment, and blots out of
existence the guilt, so that in the eye of the law, the offender is as innocent as if he had never committed the
offense. It removes the penalties and disabilities, and restores him to all his civil rights. It makes him, as it were, a
new man, and gives him a new credit and capacity. (Ex parteGarland, 71 U. S., 4 Wall., 333; 18 Law. ed., 366; U.
S. vs. Klein, 80 U. S., 13 Wall., 128; 20 Law. ed., 519; Knote vs. U. S., 95 U. S., 149; 24 Law. ed., 442.)

The framers of the federal and the state constitutions were perfectly familiar with the principles governing the
power to grant pardons, and it was conferred by these instruments upon the executive with full knowledge of the
law upon the subject, and the words of the constitution were used to express the authority formerly exercised by
the English crown, or by its representatives in the colonies. (Ex parte Wells, 59 U. S., 18 How., 307; 15 Law. ed.,
421.) As this power was understood, it did not comprehend any part of the judicial functions to suspend sentence,
and it was never intended that the authority to grant reprieves and pardons should abrogate, or in any degree
restrict, the exercise of that power in regard to its own judgments, that criminal courts has so long maintained.
The two powers, so distinct and different in their nature and character, were still left separate and distinct, the one
to be exercised by the executive, and the other by the judicial department. We therefore conclude that a statute
which, in terms, authorizes courts of criminal jurisdiction to suspend sentence in certain cases after conviction,
a power inherent in such courts at common law, which was understood when the constitution was adopted to be
an ordinary judicial function, and which, ever since its adoption, has been exercised of legislative power under the
constitution. It does not encroach, in any just sense, upon the powers of the executive, as they have been
understood and practiced from the earliest times. (Quoted with approval in Directors of Prisons vs. Judge of First
Instance of Cavite [1915], 29 Phil., 265, Carson, J., concurring, at pp. 294, 295.)
In probation, the probationer is in no true sense, as in pardon, a free man. He is not finally and completely exonerated. He
is not exempt from the entire punishment which the law inflicts. Under the Probation Act, the probationer's case is not
terminated by the mere fact that he is placed on probation. Section 4 of the Act provides that the probation may be
definitely terminated and the probationer finally discharged from supervision only after the period of probation shall have
been terminated and the probation officer shall have submitted a report, and the court shall have found that the
probationer has complied with the conditions of probation. The probationer, then, during the period of probation, remains
in legal custody subject to the control of the probation officer and of the court; and, he may be rearrested upon the nonfulfillment of the conditions of probation and, when rearrested, may be committed to prison to serve the sentence originally
imposed upon him. (Secs. 2, 3, 5 and 6, Act No. 4221.)
The probation described in the act is not pardon. It is not complete liberty, and may be far from it. It is really a new
mode of punishment, to be applied by the judge in a proper case, in substitution of the imprisonment and find
prescribed by the criminal laws. For this reason its application is as purely a judicial act as any other sentence
carrying out the law deemed applicable to the offense. The executive act of pardon, on the contrary, is against the
criminal law, which binds and directs the judges, or rather is outside of and above it. There is thus no conflict with
the pardoning power, and no possible unconstitutionality of the Probation Act for this cause. (Archer vs. Snook
[1926], 10 F. [2d], 567, 569.)
Probation should also be distinguished from reprieve and from commutation of the sentence. Snodgrass vs. State ([1912],
67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.], 1144; 150 S. W., 162), is relied upon most strongly by the petitioners as
authority in support of their contention that the power to grant pardons and reprieves, having been vested exclusively
upon the Chief Executive by the Jones Law, may not be conferred by the legislature upon the courts by means of
probation law authorizing the indefinite judicial suspension of sentence. We have examined that case and found that
although the Court of Criminal Appeals of Texas held that the probation statute of the state in terms conferred on the
district courts the power to grant pardons to persons convicted of crime, it also distinguished between suspensions
sentence on the one hand, and reprieve and commutation of sentence on the other. Said the court, through Harper, J.:
That the power to suspend the sentence does not conflict with the power of the Governor to grant reprieves is
settled by the decisions of the various courts; it being held that the distinction between a "reprieve" and a
suspension of sentence is that a reprieve postpones the execution of the sentence to a day certain, whereas a
suspension is for an indefinite time. (Carnal vs. People, 1 Parker, Cr. R., 262; In re Buchanan, 146 N. Y., 264; 40
N. E., 883), and cases cited in 7 Words & Phrases, pp. 6115, 6116. This law cannot be hold in conflict with the
power confiding in the Governor to grant commutations of punishment, for a commutations is not but to change
the punishment assessed to a less punishment.
In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac., 525), the Supreme Court of Montana had
under consideration the validity of the adult probation law of the state enacted in 1913, now found in sections 1207812086, Revised Codes of 1921. The court held the law valid as not impinging upon the pardoning power of the executive.
In a unanimous decision penned by Justice Holloway, the court said:
. . . . the term "pardon", "commutation", and "respite" each had a well understood meaning at the time our
Constitution was adopted, and no one of them was intended to comprehend the suspension of the execution of
the judgment as that phrase is employed in sections 12078-12086. A "pardon" is an act of grace, proceeding from
the power intrusted with the execution of the laws which exempts the individual on whom it is bestowed from the
punishment the law inflicts for a crime he has committed (United States vs. Wilson, 7 Pet., 150; 8 Law. ed., 640);
It is a remission of guilt (State vs. Lewis, 111 La., 693; 35 So., 816), a forgiveness of the offense (Cook vs.
Middlesex County, 26 N. J. Law, 326; Ex parte Powell, 73 Ala., 517; 49 Am. Rep., 71). "Commutation" is a
remission of a part of the punishment; a substitution of a less penalty for the one originally imposed (Lee vs.
Murphy, 22 Grat. [Va.] 789; 12 Am. Rep., 563; Rich vs. Chamberlain, 107 Mich., 381; 65 N. W., 235). A "reprieve"
or "respite" is the withholding of the sentence for an interval of time (4 Blackstone's Commentaries, 394), a
postponement of execution (Carnal vs. People, 1 Parker, Cr. R. [N. Y.], 272), a temporary suspension of
execution (Butler vs. State, 97 Ind., 373).
Few adjudicated cases are to be found in which the validity of a statute similar to our section 12078 has been
determined; but the same objections have been urged against parole statutes which vest the power to parole in
persons other than those to whom the power of pardon is granted, and these statutes have been upheld quite
uniformly, as a reference to the numerous cases cited in the notes to Woods vs. State (130 Tenn., 100; 169 S.
W.,558, reported in L. R. A., 1915F, 531), will disclose. (See, also, 20 R. C. L., 524.)
We conclude that the Probation Act does not conflict with the pardoning power of the Executive. The pardoning power, in
respect to those serving their probationary sentences, remains as full and complete as if the Probation Law had never
been enacted. The President may yet pardon the probationer and thus place it beyond the power of the court to order his
rearrest
and
imprisonment.
(Riggs
vs.
United
States
[1926],
14 F. [2d], 5, 7.)
2. But while the Probation Law does not encroach upon the pardoning power of the executive and is not for that reason
void, does section 11 thereof constitute, as contended, an undue delegation of legislative power?

Under the constitutional system, the powers of government are distributed among three coordinate and substantially
independent organs: the legislative, the executive and the judicial. Each of these departments of the government derives
its authority from the Constitution which, in turn, is the highest expression of popular will. Each has exclusive cognizance
of the matters within its jurisdiction, and is supreme within its own sphere.
The power to make laws the legislative power is vested in a bicameral Legislature by the Jones Law (sec. 12) and in
a unicamiral National Assembly by the Constitution (Act. VI, sec. 1, Constitution of the Philippines). The Philippine
Legislature or the National Assembly may not escape its duties and responsibilities by delegating that power to any other
body or authority. Any attempt to abdicate the power is unconstitutional and void, on the principle that potestas delegata
non delegare potest. This principle is said to have originated with the glossators, was introduced into English law through
a misreading of Bracton, there developed as a principle of agency, was established by Lord Coke in the English public law
in decisions forbidding the delegation of judicial power, and found its way into America as an enlightened principle of free
government. It has since become an accepted corollary of the principle of separation of powers. (5 Encyc. of the Social
Sciences, p. 66.) The classic statement of the rule is that of Locke, namely: "The legislative neither must nor can transfer
the power of making laws to anybody else, or place it anywhere but where the people have." (Locke on Civil Government,
sec. 142.) Judge Cooley enunciates the doctrine in the following oft-quoted language: "One of the settled maxims in
constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department
to any other body or authority. Where the sovereign power of the state has located the authority, there it must remain; and
by the constitutional agency alone the laws must be made until the Constitution itself is charged. The power to whose
judgment, wisdom, and patriotism this high prerogative has been intrusted cannot relieve itself of the responsibilities by
choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and
patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust." (Cooley on
Constitutional Limitations, 8th ed., Vol. I, p. 224. Quoted with approval in U. S. vs. Barrias [1908], 11 Phil., 327.) This court
posits the doctrine "on the ethical principle that such a delegated power constitutes not only a right but a duty to be
performed by the delegate by the instrumentality of his own judgment acting immediately upon the matter of legislation
and not through the intervening mind of another. (U. S. vs. Barrias, supra, at p. 330.)
The rule, however, which forbids the delegation of legislative power is not absolute and inflexible. It admits of exceptions.
An exceptions sanctioned by immemorial practice permits the central legislative body to delegate legislative powers to
local authorities. (Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660; U. S. vs. Salaveria [1918], 39 Phil., 102;
Stoutenburgh vs. Hennick [1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256; State vs. Noyes [1855], 30 N.
H., 279.) "It is a cardinal principle of our system of government, that local affairs shall be managed by local authorities,
and general affairs by the central authorities; and hence while the rule is also fundamental that the power to make laws
cannot be delegated, the creation of the municipalities exercising local self government has never been held to trench
upon that rule. Such legislation is not regarded as a transfer of general legislative power, but rather as the grant of the
authority to prescribed local regulations, according to immemorial practice, subject of course to the interposition of the
superior in cases of necessity." (Stoutenburgh vs. Hennick, supra.) On quite the same principle, Congress is powered to
delegate legislative power to such agencies in the territories of the United States as it may select. A territory stands in the
same relation to Congress as a municipality or city to the state government. (United States vs. Heinszen [1907], 206 U.
S., 370; 27 Sup. Ct. Rep., 742; 51 L. ed., 1098; 11 Ann. Cas., 688; Dorr vs. United States [1904], 195 U.S., 138; 24 Sup.
Ct. Rep., 808; 49 Law. ed., 128; 1 Ann. Cas., 697.) Courts have also sustained the delegation of legislative power to the
people at large. Some authorities maintain that this may not be done (12 C. J., pp. 841, 842; 6 R. C. L., p. 164, citing
People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442; Ann. Cas., 1914C, 616). However, the question of whether or
not a state has ceased to be republican in form because of its adoption of the initiative and referendum has been held not
to be a judicial but a political question (Pacific States Tel. & Tel. Co. vs. Oregon [1912], 223 U. S., 118; 56 Law. ed., 377;
32 Sup. Cet. Rep., 224), and as the constitutionality of such laws has been looked upon with favor by certain progressive
courts, the sting of the decisions of the more conservative courts has been pretty well drawn. (Opinions of the Justices
[1894], 160 Mass., 586; 36 N. E., 488; 23 L. R. A., 113; Kiernan vs. Portland [1910], 57 Ore., 454; 111 Pac., 379; 1132
Pac., 402; 37 L. R. A. [N. S.], 332; Pacific States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also, legislative power
may be delegated by the Constitution itself. Section 14, paragraph 2, of article VI of the Constitution of the Philippines
provides that "The National Assembly may by law authorize the President, subject to such limitations and restrictions as it
may impose, to fix within specified limits, tariff rates, import or export quotas, and tonnage and wharfage dues." And
section 16 of the same article of the Constitution provides that "In times of war or other national emergency, the National
Assembly may by law authorize the President, for a limited period and subject to such restrictions as it may prescribed, to
promulgate rules and regulations to carry out a declared national policy." It is beyond the scope of this decision to
determine whether or not, in the absence of the foregoing constitutional provisions, the President could be authorized to
exercise the powers thereby vested in him. Upon the other hand, whatever doubt may have existed has been removed by
the Constitution itself.
The case before us does not fall under any of the exceptions hereinabove mentioned.
The challenged section of Act No. 4221 in section 11 which reads as follows:
This Act shall apply only in those provinces in which the respective provincial boards have provided for the salary
of a probation officer at rates not lower than those now provided for provincial fiscals. Said probation officer shall
be appointed by the Secretary of Justice and shall be subject to the direction of the Probation Office. (Emphasis
ours.)
In testing whether a statute constitute an undue delegation of legislative power or not, it is usual to inquire whether the
statute was complete in all its terms and provisions when it left the hands of the legislature so that nothing was left to the
judgment of any other appointee or delegate of the legislature. (6 R. C. L., p. 165.) In the United States vs. Ang Tang Ho
([1922], 43 Phil., 1), this court adhered to the foregoing rule when it held an act of the legislature void in so far as it
undertook to authorize the Governor-General, in his discretion, to issue a proclamation fixing the price of rice and to make
the sale of it in violation of the proclamation a crime. (See and cf. Compaia General de Tabacos vs. Board of Public
Utility Commissioners [1916], 34 Phil., 136.) The general rule, however, is limited by another rule that to a certain extent
matters of detail may be left to be filled in by rules and regulations to be adopted or promulgated by executive officers and
administrative boards. (6 R. C. L., pp. 177-179.)
For the purpose of Probation Act, the provincial boards may be regarded as administrative bodies endowed with power to
determine when the Act should take effect in their respective provinces. They are the agents or delegates of the
legislature in this respect. The rules governing delegation of legislative power to administrative and executive officers are
applicable or are at least indicative of the rule which should be here adopted. An examination of a variety of cases on

delegation of power to administrative bodies will show that the ratio decidendiis at variance but, it can be broadly asserted
that the rationale revolves around the presence or absence of a standard or rule of action or the sufficiency thereof
in the statute, to aid the delegate in exercising the granted discretion. In some cases, it is held that the standard is
sufficient; in others that is insufficient; and in still others that it is entirely lacking. As a rule, an act of the legislature is
incomplete and hence invalid if it does not lay down any rule or definite standard by which the administrative officer or
board may be guided in the exercise of the discretionary powers delegated to it. (See Schecter vs. United States [1925],
295 U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837; 97 A.L.R., 947; People ex rel. Rice vs. Wilson Oil Co. [1936], 364
Ill., 406; 4 N. E. [2d], 847; 107 A.L.R., 1500 and cases cited. See also R. C. L., title "Constitutional Law", sec 174.) In the
case at bar, what rules are to guide the provincial boards in the exercise of their discretionary power to determine whether
or not the Probation Act shall apply in their respective provinces? What standards are fixed by the Act? We do not find
any and none has been pointed to us by the respondents. The probation Act does not, by the force of any of its
provisions, fix and impose upon the provincial boards any standard or guide in the exercise of their discretionary power.
What is granted, if we may use the language of Justice Cardozo in the recent case of Schecter, supra, is a "roving
commission" which enables the provincial boards to exercise arbitrary discretion. By section 11 if the Act, the legislature
does not seemingly on its own authority extend the benefits of the Probation Act to the provinces but in reality leaves the
entire matter for the various provincial boards to determine. In other words, the provincial boards of the various provinces
are to determine for themselves, whether the Probation Law shall apply to their provinces or not at all. The applicability
and application of the Probation Act are entirely placed in the hands of the provincial boards. If the provincial board does
not wish to have the Act applied in its province, all that it has to do is to decline to appropriate the needed amount for the
salary of a probation officer. The plain language of the Act is not susceptible of any other interpretation. This, to our
minds, is a virtual surrender of legislative power to the provincial boards.
"The true distinction", says Judge Ranney, "is between the delegation of power to make the law, which necessarily
involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised
under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made." (Cincinnati, W.
& Z. R. Co. vs. Clinton County Comrs. [1852]; 1 Ohio St., 77, 88. See also, Sutherland on Statutory Construction, sec 68.)
To the same effect are the decision of this court in Municipality of Cardona vs. Municipality of Binangonan ([1917], 36
Phil., 547); Rubi vs. Provincial Board of Mindoro ([1919],39 Phil., 660) andCruz vs. Youngberg ([1931], 56 Phil., 234). In
the first of these cases, this court sustained the validity of the law conferring upon the Governor-General authority to
adjust provincial and municipal boundaries. In the second case, this court held it lawful for the legislature to direct nonChristian inhabitants to take up their habitation on unoccupied lands to be selected by the provincial governor and
approved by the provincial board. In the third case, it was held proper for the legislature to vest in the Governor-General
authority to suspend or not, at his discretion, the prohibition of the importation of the foreign cattle, such prohibition to be
raised "if the conditions of the country make this advisable or if deceased among foreign cattle has ceased to be a
menace to the agriculture and livestock of the lands."
It should be observed that in the case at bar we are not concerned with the simple transference of details of execution or
the promulgation by executive or administrative officials of rules and regulations to carry into effect the provisions of a law.
If we were, recurrence to our own decisions would be sufficient. (U. S. vs. Barrias [1908], 11 Phil., 327; U.S. vs. Molina
[1914], 29 Phil., 119; Alegre vs. Collector of Customs [1929], 53 Phil., 394; Cebu Autobus Co. vs. De Jesus [1931], 56
Phil., 446; U. S. vs. Gomez [1915], 31 Phil., 218; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.)
It is connected, however, that a legislative act may be made to the effect as law after it leaves the hands of the legislature.
It is true that laws may be made effective on certain contingencies, as by proclamation of the executive or the adoption by
the people of a particular community (6 R. C. L., 116, 170-172; Cooley, Constitutional Limitations, 8th ed., Vol. I, p. 227).
In Wayman vs. Southard ([1825], 10 Wheat. 1; 6 Law. ed., 253), the Supreme Court of the United State ruled that the
legislature may delegate a power not legislative which it may itself rightfully exercise.(Vide, also, Dowling vs. Lancashire
Ins. Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to ascertain facts is such a power which may be
delegated. There is nothing essentially legislative in ascertaining the existence of facts or conditions as the basis of the
taking into effect of a law. That is a mental process common to all branches of the government. (Dowling vs. Lancashire
Ins. Co., supra; In re Village of North Milwaukee [1896], 93 Wis., 616; 97 N.W., 1033; 33 L.R.A., 938; Nash vs. Fries
[1906], 129 Wis., 120; 108 N.W., 210; Field vs. Clark [1892], 143 U.S., 649; 12 Sup. Ct., 495; 36 Law. ed., 294.)
Notwithstanding the apparent tendency, however, to relax the rule prohibiting delegation of legislative authority on account
of the complexity arising from social and economic forces at work in this modern industrial age (Pfiffner, Public
Administration [1936] ch. XX; Laski, "The Mother of Parliaments", foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579;
Beard, "Squirt-Gun Politics", in Harper's Monthly Magazine, July, 1930, Vol. CLXI, pp. 147, 152), the orthodox
pronouncement of Judge Cooley in his work on Constitutional Limitations finds restatement in Prof. Willoughby's treatise
on the Constitution of the United States in the following language speaking of declaration of legislative power to
administrative agencies: "The principle which permits the legislature to provide that the administrative agent may
determine when the circumstances are such as require the application of a law is defended upon the ground that at the
time this authority is granted, the rule of public policy, which is the essence of the legislative act, is determined by the
legislature. In other words, the legislature, as it its duty to do, determines that, under given circumstances, certain
executive or administrative action is to be taken, and that, under other circumstances, different of no action at all is to be
taken. What is thus left to the administrative official is not the legislative determination of what public policy demands, but
simply the ascertainment of what the facts of the case require to be done according to the terms of the law by which he is
governed." (Willoughby on the Constitution of the United States, 2nd ed., Vol. II, p. 1637.) In Miller vs. Mayer, etc., of New
York [1883], 109 U.S., 3 Sup. Ct. Rep., 228; 27 Law. ed., 971, 974), it was said: "The efficiency of an Act as a declaration
of legislative will must, of course, come from Congress, but the ascertainment of the contingency upon which the Act shall
take effect may be left to such agencies as it may designate." (See, also, 12 C.J., p. 864; State vs. Parker [1854], 26 Vt.,
357; Blanding vs. Burr [1859], 13 Cal., 343, 258.) The legislature, then may provide that a contingencies leaving to some
other person or body the power to determine when the specified contingencies has arisen. But, in the case at bar, the
legislature has not made the operation of the Prohibition Act contingent upon specified facts or conditions to be
ascertained by the provincial board. It leaves, as we have already said, the entire operation or non-operation of the law
upon the provincial board. the discretion vested is arbitrary because it is absolute and unlimited. A provincial board need
not investigate conditions or find any fact, or await the happening of any specified contingency. It is bound by no rule,
limited by no principle of expendiency announced by the legislature. It may take into consideration certain facts or
conditions; and, again, it may not. It may have any purpose or no purpose at all. It need not give any reason whatsoever
for refusing or failing to appropriate any funds for the salary of a probation officer. This is a matter which rest entirely at its

pleasure. The fact that at some future time we cannot say when the provincial boards may appropriate funds for the
salaries of probation officers and thus put the law into operation in the various provinces will not save the statute. The time
of its taking into effect, we reiterate, would yet be based solely upon the will of the provincial boards and not upon the
happening of a certain specified contingency, or upon the ascertainment of certain facts or conditions by a person or body
other than legislature itself.
The various provincial boards are, in practical effect, endowed with the power of suspending the operation of the
Probation Law in their respective provinces. In some jurisdiction, constitutions provided that laws may be suspended only
by the legislature or by its authority. Thus, section 28, article I of the Constitution of Texas provides that "No power of
suspending laws in this state shall be exercised except by the legislature"; and section 26, article I of the Constitution of
Indiana provides "That the operation of the laws shall never be suspended, except by authority of the General Assembly."
Yet, even provisions of this sort do not confer absolute power of suspension upon the legislature. While it may be
undoubted that the legislature may suspend a law, or the execution or operation of a law, a law may not be suspended as
to certain individuals only, leaving the law to be enjoyed by others. The suspension must be general, and cannot be made
for individual cases or for particular localities. In Holden vs. James ([1814], 11 Mass., 396; 6 Am. Dec., 174, 177, 178), it
was said:
By the twentieth article of the declaration of rights in the constitution of this commonwealth, it is declared that the
power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or
by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide
for. Many of the articles in that declaration of rights were adopted from the Magna Charta of England, and from
the bill of rights passed in the reign of William and Mary. The bill of rights contains an enumeration of the
oppressive acts of James II, tending to subvert and extirpate the protestant religion, and the laws and liberties of
the kingdom; and the first of them is the assuming and exercising a power of dispensing with and suspending the
laws, and the execution of the laws without consent of parliament. The first article in the claim or declaration of
rights contained in the statute is, that the exercise of such power, by legal authority without consent of parliament,
is illegal. In the tenth section of the same statute it is further declared and enacted, that "No dispensation by non
obstante of or to any statute, or part thereof, should be allowed; but the same should be held void and of no
effect, except a dispensation be allowed of in such statute." There is an implied reservation of authority in the
parliament to exercise the power here mentioned; because, according to the theory of the English Constitution,
"that absolute despotic power, which must in all governments reside somewhere," is intrusted to the parliament: 1
Bl. Com., 160.
The principles of our government are widely different in this particular. Here the sovereign and absolute power
resides in the people; and the legislature can only exercise what is delegated to them according to the
constitution. It is obvious that the exercise of the power in question would be equally oppressive to the subject,
and subversive of his right to protection, "according to standing laws," whether exercised by one man or by a
number of men. It cannot be supposed that the people when adopting this general principle from the English bill of
rights and inserting it in our constitution, intended to bestow by implication on the general court one of the most
odious and oppressive prerogatives of the ancient kings of England. It is manifestly contrary to the first principles
of civil liberty and natural justice, and to the spirit of our constitution and laws, that any one citizen should enjoy
privileges and advantages which are denied to all others under like circumstances; or that ant one should be
subject to losses, damages, suits, or actions from which all others under like circumstances are exempted.
To illustrate the principle: A section of a statute relative to dogs made the owner of any dog liable to the owner of domestic
animals wounded by it for the damages without proving a knowledge of it vicious disposition. By a provision of the act,
power was given to the board of supervisors to determine whether or not during the current year their county should be
governed by the provisions of the act of which that section constituted a part. It was held that the legislature could not
confer that power. The court observed that it could no more confer such a power than to authorize the board of
supervisors of a county to abolish in such county the days of grace on commercial paper, or to suspend the statute of
limitations. (Slinger vs. Henneman [1875], 38 Wis., 504.) A similar statute in Missouri was held void for the same reason in
State vs. Field ([1853, 17 Mo., 529;59 Am. Dec., 275.) In that case a general statute formulating a road system contained
a provision that "if the county court of any county should be of opinion that the provisions of the act should not be
enforced, they might, in their discretion, suspend the operation of the same for any specified length of time, and thereupon
the act should become inoperative in such county for the period specified in such order; and thereupon order the roads to
be opened and kept in good repair, under the laws theretofore in force." Said the court: ". . . this act, by its own provisions,
repeals the inconsistent provisions of a former act, and yet it is left to the county court to say which act shall be enforce in
their county. The act does not submit the question to the county court as an original question, to be decided by that
tribunal, whether the act shall commence its operation within the county; but it became by its own terms a law in every
county not excepted by name in the act. It did not, then, require the county court to do any act in order to give it effect. But
being the law in the county, and having by its provisions superseded and abrogated the inconsistent provisions of
previous laws, the county court is . . . empowered, to suspend this act and revive the repealed provisions of the former
act. When the question is before the county court for that tribunal to determine which law shall be in force, it is urge before
us that the power then to be exercised by the court is strictly legislative power, which under our constitution, cannot be
delegated to that tribunal or to any other body of men in the state. In the present case, the question is not presented in the
abstract; for the county court of Saline county, after the act had been for several months in force in that county, did by
order suspend its operation; and during that suspension the offense was committed which is the subject of the present
indictment . . . ." (See Mitchell vs. State [1901], 134 Ala., 392; 32 S., 687.)
True, the legislature may enact laws for a particular locality different from those applicable to other localities and, while
recognizing the force of the principle hereinabove expressed, courts in may jurisdiction have sustained the
constitutionality of the submission of option laws to the vote of the people. (6 R.C.L., p. 171.) But option laws thus
sustained treat of subjects purely local in character which should receive different treatment in different localities placed
under different circumstances. "They relate to subjects which, like the retailing of intoxicating drinks, or the running at
large of cattle in the highways, may be differently regarded in different localities, and they are sustained on what seems to
us the impregnable ground, that the subject, though not embraced within the ordinary powers of municipalities to make
by-laws and ordinances, is nevertheless within the class of public regulations, in respect to which it is proper that the local
judgment should control." (Cooley on Constitutional Limitations, 5th ed., p. 148.) So that, while we do not deny the right of
local self-government and the propriety of leaving matters of purely local concern in the hands of local authorities or for
the people of small communities to pass upon, we believe that in matters of general of general legislation like that which

treats of criminals in general, and as regards the general subject of probation, discretion may not be vested in a manner
so unqualified and absolute as provided in Act No. 4221. True, the statute does not expressly state that the provincial
boards may suspend the operation of the Probation Act in particular provinces but, considering that, in being vested with
the authority to appropriate or not the necessary funds for the salaries of probation officers, they thereby are given
absolute discretion to determine whether or not the law should take effect or operate in their respective provinces, the
provincial boards are in reality empowered by the legislature to suspend the operation of the Probation Act in particular
provinces, the Act to be held in abeyance until the provincial boards should decide otherwise by appropriating the
necessary funds. The validity of a law is not tested by what has been done but by what may be done under its provisions.
(Walter E. Olsen & Co. vs. Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.)
It in conceded that a great deal of latitude should be granted to the legislature not only in the expression of what may be
termed legislative policy but in the elaboration and execution thereof. "Without this power, legislation would become
oppressive and yet imbecile." (People vs. Reynolds, 5 Gilman, 1.) It has been said that popular government lives because
of the inexhaustible reservoir of power behind it. It is unquestionable that the mass of powers of government is vested in
the representatives of the people and that these representatives are no further restrained under our system than by the
express language of the instrument imposing the restraint, or by particular provisions which by clear intendment, have that
effect. (Angara vs. Electoral Commission [1936], 35 Off. Ga., 23; Schneckenburger vs. Moran [1936], 35 Off. Gaz., 1317.)
But, it should be borne in mind that a constitution is both a grant and a limitation of power and one of these time-honored
limitations is that, subject to certain exceptions, legislative power shall not be delegated.
We conclude that section 11 of Act No. 4221 constitutes an improper and unlawful delegation of legislative authority to the
provincial boards and is, for this reason, unconstitutional and void.
3. It is also contended that the Probation Act violates the provisions of our Bill of Rights which prohibits the denial to any
person of the equal protection of the laws (Act. III, sec. 1 subsec. 1. Constitution of the Philippines.)
This basic individual right sheltered by the Constitution is a restraint on all the tree grand departments of our government
and on the subordinate instrumentalities and subdivision thereof, and on many constitutional power, like the police power,
taxation and eminent domain. The equal protection of laws, sententiously observes the Supreme Court of the United
States, "is a pledge of the protection of equal laws." (Yick Wo vs. Hopkins [1886], 118 U. S., 356; 30 Law. ed., 220; 6 Sup.
Ct. Rep., 10464; Perley vs. North Carolina, 249 U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course, what may
be regarded as a denial of the equal protection of the laws in a question not always easily determined. No rule that will
cover every case can be formulated. (Connolly vs. Union Sewer Pipe Co. [1902], 184, U. S., 540; 22 Sup. Ct., Rep., 431;
46 Law. ed., 679.) Class legislation discriminating against some and favoring others in prohibited. But classification on a
reasonable basis, and nor made arbitrarily or capriciously, is permitted. (Finely vs. California [1911], 222 U. S., 28; 56
Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C. & S. F. Ry Co. vs. Ellis [1897], 165 U. S., 150; 41 Law. ed., 666; 17 Sup. Ct.
Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) The classification, however, to be reasonable must be
based on substantial distinctions which make real differences; it must be germane to the purposes of the law; it must not
be limited to existing conditions only, and must apply equally to each member of the class. (Borgnis vs. Falk. Co. [1911],
147 Wis., 327, 353; 133 N. W., 209; 3 N. C. C. A., 649; 37 L. R. A. [N. S.], 489; State vs. Cooley, 56 Minn., 540; 530-552;
58 N. W., 150; Lindsley vs. Natural Carbonic Gas Co.[1911], 220 U. S., 61, 79, 55 Law. ed., 369, 377; 31 Sup. Ct. Rep.,
337; Ann. Cas., 1912C, 160; Lake Shore & M. S. R. Co. vs. Clough [1917], 242 U.S., 375; 37 Sup. Ct. Rep., 144; 61 Law.
ed., 374; Southern Ry. Co. vs. Greene [1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287; 54 Law. ed., 536; 17 Ann. Cas.,
1247; Truax vs. Corrigan [1921], 257 U. S., 312; 12 C. J., pp. 1148, 1149.)
In the case at bar, however, the resultant inequality may be said to flow from the unwarranted delegation of legislative
power, although perhaps this is not necessarily the result in every case. Adopting the example given by one of the
counsel for the petitioners in the course of his oral argument, one province may appropriate the necessary fund to defray
the salary of a probation officer, while another province may refuse or fail to do so. In such a case, the Probation Act
would be in operation in the former province but not in the latter. This means that a person otherwise coming within the
purview of the law would be liable to enjoy the benefits of probation in one province while another person similarly situated
in another province would be denied those same benefits. This is obnoxious discrimination. Contrariwise, it is also
possible for all the provincial boards to appropriate the necessary funds for the salaries of the probation officers in their
respective provinces, in which case no inequality would result for the obvious reason that probation would be in operation
in each and every province by the affirmative action of appropriation by all the provincial boards. On that hypothesis,
every person coming within the purview of the Probation Act would be entitled to avail of the benefits of the Act. Neither
will there be any resulting inequality if no province, through its provincial board, should appropriate any amount for the
salary of the probation officer which is the situation now and, also, if we accept the contention that, for the purpose
of the Probation Act, the City of Manila should be considered as a province and that the municipal board of said city has
not made any appropriation for the salary of the probation officer. These different situations suggested show, indeed, that
while inequality may result in the application of the law and in the conferment of the benefits therein provided, inequality is
not in all cases the necessary result. But whatever may be the case, it is clear that in section 11 of the Probation Act
creates a situation in which discrimination and inequality are permitted or allowed. There are, to be sure, abundant
authorities requiring actual denial of the equal protection of the law before court should assume the task of setting aside a
law vulnerable on that score, but premises and circumstances considered, we are of the opinion that section 11 of Act No.
4221 permits of the denial of the equal protection of the law and is on that account bad. We see no difference between a
law which permits of such denial. A law may appear to be fair on its face and impartial in appearance, yet, if it permits of
unjust and illegal discrimination, it is within the constitutional prohibitions. (By analogy, Chy Lung vs. Freeman [1876], 292
U. S., 275; 23 Law. ed., 550; Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law. ed., 543; Ex parte Virginia [1880], 100
U. S., 339; 25 Law. ed., 676; Neal vs. Delaware [1881], 103 U. S., 370; 26 Law. ed., 567; Soon Hing vs. Crowley [1885],
113 U. S., 703; 28 Law. ed., 1145, Yick Wo vs. Hopkins [1886],118 U. S., 356; 30 Law. ed., 220; Williams vs. Mississippi
[1897], 170 U. S., 218; 18 Sup. Ct. Rep., 583; 42 Law. ed., 1012; Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct.
Rep. 145; 55 Law. ed., Sunday Lake Iron Co. vs. Wakefield [1918], 247 U. S., 450; 38 Sup. Ct. Rep., 495; 62 Law. ed.,
1154.) In other words, statutes may be adjudged unconstitutional because of their effect in operation (General Oil Co. vs.
Clain [1907], 209 U. S., 211; 28 Sup. Ct. Rep., 475; 52 Law. ed., 754; State vs. Clement Nat. Bank [1911], 84 Vt., 167; 78
Atl., 944; Ann. Cas., 1912D, 22). If the law has the effect of denying the equal protection of the law it is unconstitutional. (6
R. C. L. p. 372; Civil Rights Cases, 109 U. S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs. Hopkins, supra; State
vs. Montgomery, 94 Me., 192; 47 Atl., 165; 80 A. S. R., 386; State vs. Dering, 84 Wis., 585; 54 N. W., 1104; 36 A. S. R.,
948; 19 L. R. A., 858.) Under section 11 of the Probation Act, not only may said Act be in force in one or several provinces
and not be in force in other provinces, but one province may appropriate for the salary of the probation officer of a given

year and have probation during that year and thereafter decline to make further appropriation, and have no
probation is subsequent years. While this situation goes rather to the abuse of discretion which delegation implies, it is
here indicated to show that the Probation Act sanctions a situation which is intolerable in a government of laws, and to
prove how easy it is, under the Act, to make the guaranty of the equality clause but "a rope of sand". (Brewer, J. Gulf C. &
S. F. Ry. Co. vs. Ellis [1897], 165 U. S., 150 154; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255.)lawph!1.net
Great reliance is placed by counsel for the respondents on the case of Ocampo vs. United States ([1914], 234 U. S., 91;
58 Law. ed., 1231). In that case, the Supreme Court of the United States affirmed the decision of this court (18 Phil., 1) by
declining to uphold the contention that there was a denial of the equal protection of the laws because, as held in Missouri
vs. Lewis (Bowman vs. Lewis) decided in 1880 (101 U. S., 220; 25 Law. ed., 991), the guaranty of the equality clause
does not require territorial uniformity. It should be observed, however, that this case concerns the right to preliminary
investigations in criminal cases originally granted by General Orders No. 58. No question of legislative authority was
involved and the alleged denial of the equal protection of the laws was the result of the subsequent enactment of Act No.
612, amending the charter of the City of Manila (Act No. 813) and providing in section 2 thereof that "in cases triable only
in the court of first instance of the City of Manila, the defendant . . . shall not be entitled as of right to a preliminary
examination in any case where the prosecuting attorney, after a due investigation of the facts . . . shall have presented an
information against him in proper form . . . ." Upon the other hand, an analysis of the arguments and the decision indicates
that the investigation by the prosecuting attorney although not in the form had in the provinces was considered a
reasonable substitute for the City of Manila, considering the peculiar conditions of the city as found and taken into account
by the legislature itself.
Reliance is also placed on the case of Missouri vs. Lewis, supra. That case has reference to a situation where the
constitution of Missouri permits appeals to the Supreme Court of the state from final judgments of any circuit court, except
those in certain counties for which counties the constitution establishes a separate court of appeals called St. Louis Court
of Appeals. The provision complained of, then, is found in the constitution itself and it is the constitution that makes the
apportionment of territorial jurisdiction.
We are of the opinion that section 11 of the Probation Act is unconstitutional and void because it is also repugnant to
equal-protection clause of our Constitution.
Section 11 of the Probation Act being unconstitutional and void for the reasons already stated, the next inquiry is whether
or not the entire Act should be avoided.
In seeking the legislative intent, the presumption is against any mutilation of a statute, and the courts will resort to
elimination only where an unconstitutional provision is interjected into a statute otherwise valid, and is so
independent and separable that its removal will leave the constitutional features and purposes of the act
substantially unaffected by the process. (Riccio vs. Hoboken, 69 N. J. Law., 649, 662; 63 L. R. A., 485; 55 Atl.,
1109, quoted in Williams vs. Standard Oil Co. [1929], 278 U.S., 235, 240; 73 Law. ed., 287, 309; 49 Sup. Ct.
Rep., 115; 60 A. L. R., 596.) In Barrameda vs. Moir ([1913], 25 Phil., 44, 47), this court stated the well-established
rule concerning partial invalidity of statutes in the following language:
. . . where part of the a statute is void, as repugnant to the Organic Law, while another part is valid, the valid
portion, if separable from the valid, may stand and be enforced. But in order to do this, the valid portion must be in
so far independent of the invalid portion that it is fair to presume that the Legislative would have enacted it by
itself if they had supposed that they could not constitutionally enact the other. (Mutual Loan Co. vs. Martell, 200
Mass., 482; 86 N. E., 916; 128 A. S. R., 446; Supervisors of Holmes Co. vs. Black Creek Drainage District, 99
Miss., 739; 55 Sou., 963.) Enough must remain to make a complete, intelligible, and valid statute, which carries
out the legislative intent. (Pearson vs. Bass. 132 Ga., 117; 63 S. E., 798.) The void provisions must be eliminated
without causing results affecting the main purpose of the Act, in a manner contrary to the intention of the
Legislature. (State vs. A. C. L. R., Co., 56 Fla., 617, 642; 47 Sou., 969; Harper vs. Galloway, 58 Fla., 255; 51
Sou., 226; 26 L. R. A., N. S., 794; Connolly vs. Union Sewer Pipe Co., 184 U. S., 540, 565; People vs.
Strassheim, 240 Ill., 279, 300; 88 N. E., 821; 22 L. R. A., N. S., 1135; State vs. Cognevich, 124 La., 414; 50 Sou.,
439.) The language used in the invalid part of a statute can have no legal force or efficacy for any purpose
whatever, and what remains must express the legislative will, independently of the void part, since the court has
no power to legislate. (State vs. Junkin, 85 Neb., 1; 122 N. W., 473; 23 L. R. A., N. S., 839; Vide, also,. U. S., vs.
Rodriguez [1918], 38 Phil., 759; Pollock vs. Farmers' Loan and Trust Co. [1895], 158 U. S., 601, 635; 39 Law. ed.,
1108, 1125; 15 Sup. Ct. Rep., 912; 6 R.C.L., 121.)
It is contended that even if section 11, which makes the Probation Act applicable only in those provinces in which the
respective provincial boards provided for the salaries of probation officers were inoperative on constitutional grounds, the
remainder of the Act would still be valid and may be enforced. We should be inclined to accept the suggestions but for the
fact that said section is, in our opinion, is inseparably linked with the other portions of the Act that with the elimination of
the section what would be left is the bare idealism of the system, devoid of any practical benefit to a large number of
people who may be deserving of the intended beneficial result of that system. The clear policy of the law, as may be
gleaned from a careful examination of the whole context, is to make the application of the system dependent entirely upon
the affirmative action of the different provincial boards through appropriation of the salaries for probation officers at rates
not lower than those provided for provincial fiscals. Without such action on the part of the various boards, no probation
officers would be appointed by the Secretary of Justice to act in the provinces. The Philippines is divided or subdivided
into provinces and it needs no argument to show that if not one of the provinces and this is the actual situation now
appropriate the necessary fund for the salary of a probation officer, probation under Act No. 4221 would be illusory. There
can be no probation without a probation officer. Neither can there be a probation officer without the probation system.
Section 2 of the Acts provides that the probation officer shall supervise and visit the probationer. Every probation officer is
given, as to the person placed in probation under his care, the powers of the police officer. It is the duty of the probation
officer to see that the conditions which are imposed by the court upon the probationer under his care are complied with.
Among those conditions, the following are enumerated in section 3 of the Act:
That the probationer (a) shall indulge in no injurious or vicious habits;
(b) Shall avoid places or persons of disreputable or harmful character;
(c) Shall report to the probation officer as directed by the court or probation officers;
(d) Shall permit the probation officer to visit him at reasonable times at his place of abode or elsewhere;
(e) Shall truthfully answer any reasonable inquiries on the part of the probation officer concerning his conduct or
condition; "(f) Shall endeavor to be employed regularly; "(g) Shall remain or reside within a specified place or
locality;

(f) Shall make reparation or restitution to the aggrieved parties for actual damages or losses caused by his
offense;
(g) Shall comply with such orders as the court may from time to time make; and
(h) Shall refrain from violating any law, statute, ordinance, or any by-law or regulation, promulgated in accordance
with law.
The court is required to notify the probation officer in writing of the period and terms of probation. Under section 4, it is
only after the period of probation, the submission of a report of the probation officer and appropriate finding of the court
that the probationer has complied with the conditions of probation that probation may be definitely terminated and the
probationer finally discharged from supervision. Under section 5, if the court finds that there is non-compliance with said
conditions, as reported by the probation officer, it may issue a warrant for the arrest of the probationer and said
probationer may be committed with or without bail. Upon arraignment and after an opportunity to be heard, the court may
revoke, continue or modify the probation, and if revoked, the court shall order the execution of the sentence originally
imposed. Section 6 prescribes the duties of probation officers: "It shall be the duty of every probation officer to furnish to
all persons placed on probation under his supervision a statement of the period and conditions of their probation, and to
instruct them concerning the same; to keep informed concerning their conduct and condition; to aid and encourage them
by friendly advice and admonition, and by such other measures, not inconsistent with the conditions imposed by court as
may seem most suitable, to bring about improvement in their conduct and condition; to report in writing to the court having
jurisdiction over said probationers at least once every two months concerning their conduct and condition; to keep records
of their work; make such report as are necessary for the information of the Secretary of Justice and as the latter may
require; and to perform such other duties as are consistent with the functions of the probation officer and as the court or
judge may direct. The probation officers provided for in this Act may act as parole officers for any penal or reform atory
institution for adults when so requested by the authorities thereof, and, when designated by the Secretary of Justice shall
act as parole officer of persons released on parole under Act Number Forty-one Hundred and Three, without additional
compensation."
It is argued, however, that even without section 11 probation officers maybe appointed in the provinces under section 10
of Act which provides as follows:
There is hereby created in the Department of Justice and subject to its supervision and control, a Probation Office
under the direction of a Chief Probation Officer to be appointed by the Governor-General with the advise and
consent of the Senate who shall receive a salary of four eight hundred pesos per annum. To carry out this Act
there is hereby appropriated out of any funds in the Insular Treasury not otherwise appropriated, the sum of fifty
thousand pesos to be disbursed by the Secretary of Justice, who is hereby authorized to appoint probation
officers and the administrative personnel of the probation officer under civil service regulations from among those
who possess the qualifications, training and experience prescribed by the Bureau of Civil Service, and shall fix the
compensation of such probation officers and administrative personnel until such positions shall have been
included in the Appropriation Act.
But the probation officers and the administrative personnel referred to in the foregoing section are clearly not those
probation officers required to be appointed for the provinces under section 11. It may be said, reddendo singula singulis,
that the probation officers referred to in section 10 above-quoted are to act as such, not in the various provinces, but in
the central office known as the Probation Office established in the Department of Justice, under the supervision of the
Chief Probation Officer. When the law provides that "the probation officer" shall investigate and make reports to the court
(secs. 1 and 4); that "the probation officer" shall supervise and visit the probationer (sec. 2; sec. 6, par. d); that the
probationer shall report to the "probationer officer" (sec. 3, par. c.), shall allow "the probationer officer" to visit him (sec. 3,
par. d), shall truthfully answer any reasonable inquiries on the part of "the probation officer" concerning his conduct or
condition (sec. 3, par. 4); that the court shall notify "the probation officer" in writing of the period and terms of probation
(sec. 3, last par.), it means the probation officer who is in charge of a particular probationer in a particular province. It
never could have been intention of the legislature, for instance, to require the probationer in Batanes, to report to a
probationer officer in the City of Manila, or to require a probation officer in Manila to visit the probationer in the said
province of Batanes, to place him under his care, to supervise his conduct, to instruct him concerning the conditions of his
probation or to perform such other functions as are assigned to him by law.
That under section 10 the Secretary of Justice may appoint as many probation officers as there are provinces or groups of
provinces is, of course possible. But this would be arguing on what the law may be or should be and not on what the law
is. Between is and ought there is a far cry. The wisdom and propriety of legislation is not for us to pass upon. We may
think a law better otherwise than it is. But much as has been said regarding progressive interpretation and judicial
legislation we decline to amend the law. We are not permitted to read into the law matters and provisions which are not
there. Not for any purpose not even to save a statute from the doom of invalidity.
Upon the other hand, the clear intention and policy of the law is not to make the Insular Government defray the salaries of
probation officers in the provinces but to make the provinces defray them should they desire to have the Probation Act
apply thereto. The sum of P50,000, appropriated "to carry out the purposes of this Act", is to be applied, among other
things, for the salaries of probation officers in the central office at Manila. These probation officers are to receive such
compensations as the Secretary of Justice may fix "until such positions shall have been included in the Appropriation Act".
It was the intention of the legislature to empower the Secretary of Justice to fix the salaries of the probation officers in the
provinces or later on to include said salaries in an appropriation act. Considering, further, that the sum of P50,000
appropriated in section 10 is to cover, among other things, the salaries of the administrative personnel of the Probation
Office, what would be left of the amount can hardly be said to be sufficient to pay even nominal salaries to probation
officers in the provinces. We take judicial notice of the fact that there are 48 provinces in the Philippines and we do not
think it is seriously contended that, with the fifty thousand pesos appropriated for the central office, there can be in each
province, as intended, a probation officer with a salary not lower than that of a provincial fiscal. If this a correct, the
contention that without section 11 of Act No. 4221 said act is complete is an impracticable thing under the remainder of
the Act, unless it is conceded that in our case there can be a system of probation in the provinces without probation
officers.
Probation as a development of a modern penology is a commendable system. Probation laws have been enacted, here
and in other countries, to permit what modern criminologist call the "individualization of the punishment", the adjustment of
the penalty to the character of the criminal and the circumstances of his particular case. It provides a period of grace in
order to aid in the rehabilitation of a penitent offender. It is believed that, in any cases, convicts may be reformed and their
development into hardened criminals aborted. It, therefore, takes advantage of an opportunity for reformation and avoids

imprisonment so long as the convicts gives promise of reform. (United States vs. Murray [1925], 275 U. S., 347 357, 358;
72 Law. ed., 309; 312, 313; 48 Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F. [2d], 664, 665.) The Welfare of society is its
chief end and aim. The benefit to the individual convict is merely incidental. But while we believe that probation is
commendable as a system and its implantation into the Philippines should be welcomed, we are forced by our
inescapable duty to set the law aside because of the repugnancy to our fundamental law.
In arriving at this conclusion, we have endeavored to consider the different aspects presented by able counsel for both
parties, as well in their memorandums as in their oral argument. We have examined the cases brought to our attention,
and others we have been able to reach in the short time at our command for the study and deliberation of this case. In the
examination of the cases and in then analysis of the legal principles involved we have inclined to adopt the line of action
which in our opinion, is supported better reasoned authorities and is more conducive to the general welfare. (Smith, Bell &
Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the conflict of authorities, we have declined to be bound by certain
adjudicated cases brought to our attention, except where the point or principle is settled directly or by clear implication by
the more authoritative pronouncements of the Supreme Court of the United States. This line of approach is justified
because:
(a) The constitutional relations between the Federal and the State governments of the United States and the dual
character of the American Government is a situation which does not obtain in the Philippines;
(b) The situation of s state of the American Union of the District of Columbia with reference to the Federal
Government of the United States is not the situation of the province with respect to the Insular Government (Art. I,
sec. 8 cl. 17 and 10th Amendment, Constitution of the United States; Sims vs. Rives, 84 Fed. [2d], 871),
(c) The distinct federal and the state judicial organizations of the United States do not embrace the integrated
judicial system of the Philippines (Schneckenburger vs. Moran [1936], 35 Off. Gaz., p. 1317);
(d) "General propositions do not decide concrete cases" (Justice Holmes in Lochner vs. New York [1904], 198 U.
S., 45, 76; 49 Law. ed., 937, 949) and, "to keep pace with . . . new developments of times and circumstances"
(Chief Justice Waite in Pensacola Tel. Co. vs. Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708;
Yale Law Journal, Vol. XXIX, No. 2, Dec. 1919, 141, 142), fundamental principles should be interpreted having in
view existing local conditions and environment.
Act No. 4221 is hereby declared unconstitutional and void and the writ of prohibition is, accordingly, granted. Without any
pronouncement regarding costs. So ordered.

G.R. No. 92013 July 25, 1990

SALVADOR H. LAUREL, petitioner,
vs.
RAMON GARCIA, as head of the Asset Privatization Trust, RAUL MANGLAPUS, as Secretary of Foreign
Affairs, and CATALINO MACARAIG, as Executive Secretary, respondents.
G.R. No. 92047 July 25, 1990
DIONISIO S. OJEDA, petitioner,
vs.
EXECUTIVE SECRETARY MACARAIG, JR., ASSETS PRIVATIZATION TRUST CHAIRMAN RAMON T.
GARCIA, AMBASSADOR RAMON DEL ROSARIO, et al., as members of the PRINCIPAL AND BIDDING
COMMITTEES ON THE UTILIZATION/DISPOSITION PETITION OF PHILIPPINE GOVERNMENT PROPERTIES
IN JAPAN,respondents.
Arturo M. Tolentino for petitioner in 92013.
GUTIERREZ, JR., J.:
These are two petitions for prohibition seeking to enjoin respondents, their representatives and agents from
proceeding with the bidding for the sale of the 3,179 square meters of land at 306 Roppongi, 5-Chome
Minato-ku Tokyo, Japan scheduled on February 21, 1990. We granted the prayer for a temporary restraining
order effective February 20, 1990. One of the petitioners (in G.R. No. 92047) likewise prayes for a writ of
mandamus to compel the respondents to fully disclose to the public the basis of their decision to push
through with the sale of the Roppongi property inspire of strong public opposition and to explain the
proceedings which effectively prevent the participation of Filipino citizens and entities in the bidding
process.
The oral arguments in G.R. No. 92013, Laurel v. Garcia, et al. were heard by the Court on March 13, 1990.
After G.R. No. 92047, Ojeda v. Secretary Macaraig, et al. was filed, the respondents were required to file a
comment by the Court's resolution dated February 22, 1990. The two petitions were consolidated on March
27, 1990 when the memoranda of the parties in the Laurel case were deliberated upon.
The Court could not act on these cases immediately because the respondents filed a motion for an
extension of thirty (30) days to file comment in G.R. No. 92047, followed by a second motion for an
extension of another thirty (30) days which we granted on May 8, 1990, a third motion for extension of time
granted on May 24, 1990 and a fourth motion for extension of time which we granted on June 5, 1990 but
calling the attention of the respondents to the length of time the petitions have been pending. After the
comment was filed, the petitioner in G.R. No. 92047 asked for thirty (30) days to file a reply. We noted his
motion and resolved to decide the two (2) cases.
I
The subject property in this case is one of the four (4) properties in Japan acquired by the Philippine
government under the Reparations Agreement entered into with Japan on May 9, 1956, the other lots being:
(1) The Nampeidai Property at 11-24 Nampeidai-machi, Shibuya-ku, Tokyo which has an area of
approximately 2,489.96 square meters, and is at present the site of the Philippine Embassy Chancery;
(2) The Kobe Commercial Property at 63 Naniwa-cho, Kobe, with an area of around 764.72 square meters
and categorized as a commercial lot now being used as a warehouse and parking lot for the consulate staff;
and
(3) The Kobe Residential Property at 1-980-2 Obanoyama-cho, Shinohara, Nada-ku, Kobe, a residential lot
which is now vacant.
The properties and the capital goods and services procured from the Japanese government for national
development projects are part of the indemnification to the Filipino people for their losses in life and
property and their suffering during World War II.
The Reparations Agreement provides that reparations valued at $550 million would be payable in twenty
(20) years in accordance with annual schedules of procurements to be fixed by the Philippine and Japanese
governments (Article 2, Reparations Agreement). Rep. Act No. 1789, the Reparations Law, prescribes the
national policy on procurement and utilization of reparations and development loans. The procurements are
divided into those for use by the government sector and those for private parties in projects as the then
National Economic Council shall determine. Those intended for the private sector shall be made available
by sale to Filipino citizens or to one hundred (100%) percent Filipino-owned entities in national
development projects.
The Roppongi property was acquired from the Japanese government under the Second Year Schedule and
listed under the heading "Government Sector", through Reparations Contract No. 300 dated June 27, 1958.
The Roppongi property consists of the land and building "for the Chancery of the Philippine Embassy"
(Annex M-D to Memorandum for Petitioner, p. 503). As intended, it became the site of the Philippine
Embassy until the latter was transferred to Nampeidai on July 22, 1976 when the Roppongi building needed
major repairs. Due to the failure of our government to provide necessary funds, the Roppongi property has
remained undeveloped since that time.
A proposal was presented to President Corazon C. Aquino by former Philippine Ambassador to Japan,
Carlos J. Valdez, to make the property the subject of a lease agreement with a Japanese firm - Kajima
Corporation which shall construct two (2) buildings in Roppongi and one (1) building in Nampeidai and
renovate the present Philippine Chancery in Nampeidai. The consideration of the construction would be the
lease to the foreign corporation of one (1) of the buildings to be constructed in Roppongi and the two (2)
buildings in Nampeidai. The other building in Roppongi shall then be used as the Philippine Embassy
Chancery. At the end of the lease period, all the three leased buildings shall be occupied and used by the
Philippine government. No change of ownership or title shall occur. (See Annex "B" to Reply to Comment)
The Philippine government retains the title all throughout the lease period and thereafter. However, the

government has not acted favorably on this proposal which is pending approval and ratification between
the parties. Instead, on August 11, 1986, President Aquino created a committee to study the
disposition/utilization of Philippine government properties in Tokyo and Kobe, Japan through
Administrative Order No. 3, followed by Administrative Orders Numbered 3-A, B, C and D.
On July 25, 1987, the President issued Executive Order No. 296 entitling non-Filipino citizens or entities to
avail of separations' capital goods and services in the event of sale, lease or disposition. The four
properties in Japan including the Roppongi were specifically mentioned in the first "Whereas" clause.
Amidst opposition by various sectors, the Executive branch of the government has been pushing, with
great vigor, its decision to sell the reparations properties starting with the Roppongi lot. The property has
twice been set for bidding at a minimum floor price of $225 million. The first bidding was a failure since only
one bidder qualified. The second one, after postponements, has not yet materialized. The last scheduled
bidding on February 21, 1990 was restrained by his Court. Later, the rules on bidding were changed such
that the $225 million floor price became merely a suggested floor price.
The Court finds that each of the herein petitions raises distinct issues. The petitioner in G.R. No. 92013
objects to the alienation of the Roppongi property to anyone while the petitioner in G.R. No. 92047 adds as a
principal objection the alleged unjustified bias of the Philippine government in favor of selling the property
to non-Filipino citizens and entities. These petitions have been consolidated and are resolved at the same
time for the objective is the same - to stop the sale of the Roppongi property.
The petitioner in G.R. No. 92013 raises the following issues:
(1) Can the Roppongi property and others of its kind be alienated by the Philippine Government?; and
(2) Does the Chief Executive, her officers and agents, have the authority and jurisdiction, to sell the
Roppongi property?
Petitioner Dionisio Ojeda in G.R. No. 92047, apart from questioning the authority of the government to
alienate the Roppongi property assails the constitutionality of Executive Order No. 296 in making the
property available for sale to non-Filipino citizens and entities. He also questions the bidding procedures of
the Committee on the Utilization or Disposition of Philippine Government Properties in Japan for being
discriminatory against Filipino citizens and Filipino-owned entities by denying them the right to be informed
about the bidding requirements.
II
In G.R. No. 92013, petitioner Laurel asserts that the Roppongi property and the related lots were acquired as
part of the reparations from the Japanese government for diplomatic and consular use by the Philippine
government. Vice-President Laurel states that the Roppongi property is classified as one of public
dominion, and not of private ownership under Article 420 of the Civil Code (See infra).
The petitioner submits that the Roppongi property comes under "property intended for public service" in
paragraph 2 of the above provision. He states that being one of public dominion, no ownership by any one
can attach to it, not even by the State. The Roppongi and related properties were acquired for "sites for
chancery, diplomatic, and consular quarters, buildings and other improvements" (Second Year Reparations
Schedule). The petitioner states that they continue to be intended for a necessary service. They are held by
the State in anticipation of an opportune use. (Citing 3 Manresa 65-66). Hence, it cannot be appropriated, is
outside the commerce of man, or to put it in more simple terms, it cannot be alienated nor be the subject
matter of contracts (Citing Municipality of Cavite v. Rojas, 30 Phil. 20 [1915]). Noting the non-use of the
Roppongi property at the moment, the petitioner avers that the same remains property of public dominion
so long as the government has not used it for other purposes nor adopted any measure constituting a
removal of its original purpose or use.
The respondents, for their part, refute the petitioner's contention by saying that the subject property is not
governed by our Civil Code but by the laws of Japan where the property is located. They rely upon the rule
of lex situs which is used in determining the applicable law regarding the acquisition, transfer and
devolution of the title to a property. They also invoke Opinion No. 21, Series of 1988, dated January 27, 1988
of the Secretary of Justice which used the lex situs in explaining the inapplicability of Philippine law
regarding a property situated in Japan.
The respondents add that even assuming for the sake of argument that the Civil Code is applicable, the
Roppongi property has ceased to become property of public dominion. It has become patrimonial property
because it has not been used for public service or for diplomatic purposes for over thirteen (13) years now
(Citing Article 422, Civil Code) and because the intention by the Executive Department and the Congress to
convert it to private use has been manifested by overt acts, such as, among others: (1) the transfer of the
Philippine Embassy to Nampeidai (2) the issuance of administrative orders for the possibility of alienating
the four government properties in Japan; (3) the issuance of Executive Order No. 296; (4) the enactment by
the Congress of Rep. Act No. 6657 [the Comprehensive Agrarian Reform Law] on June 10, 1988 which
contains a provision stating that funds may be taken from the sale of Philippine properties in foreign
countries; (5) the holding of the public bidding of the Roppongi property but which failed; (6) the deferment
by the Senate in Resolution No. 55 of the bidding to a future date; thus an acknowledgment by the Senate of
the government's intention to remove the Roppongi property from the public service purpose; and (7) the
resolution of this Court dismissing the petition in Ojeda v. Bidding Committee, et al., G.R. No. 87478 which
sought to enjoin the second bidding of the Roppongi property scheduled on March 30, 1989.
III
In G.R. No. 94047, petitioner Ojeda once more asks this Court to rule on the constitutionality of Executive
Order No. 296. He had earlier filed a petition in G.R. No. 87478 which the Court dismissed on August 1, 1989.
He now avers that the executive order contravenes the constitutional mandate to conserve and develop the
national patrimony stated in the Preamble of the 1987 Constitution. It also allegedly violates:
(1) The reservation of the ownership and acquisition of alienable lands of the public domain to Filipino
citizens. (Sections 2 and 3, Article XII, Constitution; Sections 22 and 23 of Commonwealth Act 141).
itc-asl

(2) The preference for Filipino citizens in the grant of rights, privileges and concessions covering the
national economy and patrimony (Section 10, Article VI, Constitution);
(3) The protection given to Filipino enterprises against unfair competition and trade practices;
(4) The guarantee of the right of the people to information on all matters of public concern (Section 7,
Article III, Constitution);
(5) The prohibition against the sale to non-Filipino citizens or entities not wholly owned by Filipino citizens
of capital goods received by the Philippines under the Reparations Act (Sections 2 and 12 of Rep. Act No.
1789); and
(6) The declaration of the state policy of full public disclosure of all transactions involving public interest
(Section 28, Article III, Constitution).
Petitioner Ojeda warns that the use of public funds in the execution of an unconstitutional executive order
is a misapplication of public funds He states that since the details of the bidding for the Roppongi property
were never publicly disclosed until February 15, 1990 (or a few days before the scheduled bidding), the
bidding guidelines are available only in Tokyo, and the accomplishment of requirements and the selection
of qualified bidders should be done in Tokyo, interested Filipino citizens or entities owned by them did not
have the chance to comply with Purchase Offer Requirements on the Roppongi. Worse, the Roppongi shall
be sold for a minimum price of $225 million from which price capital gains tax under Japanese law of about
50 to 70% of the floor price would still be deducted.
IV
The petitioners and respondents in both cases do not dispute the fact that the Roppongi site and the three
related properties were through reparations agreements, that these were assigned to the government sector
and that the Roppongi property itself was specifically designated under the Reparations Agreement to
house the Philippine Embassy.
The nature of the Roppongi lot as property for public service is expressly spelled out. It is dictated by the
terms of the Reparations Agreement and the corresponding contract of procurement which bind both the
Philippine government and the Japanese government.
There can be no doubt that it is of public dominion unless it is convincingly shown that the property has
become patrimonial. This, the respondents have failed to do.
As property of public dominion, the Roppongi lot is outside the commerce of man. It cannot be alienated. Its
ownership is a special collective ownership for general use and enjoyment, an application to the
satisfaction of collective needs, and resides in the social group. The purpose is not to serve the State as a
juridical person, but the citizens; it is intended for the common and public welfare and cannot be the object
of appropration. (Taken from 3 Manresa, 66-69; cited in Tolentino, Commentaries on the Civil Code of the
Philippines, 1963 Edition, Vol. II, p. 26).
The applicable provisions of the Civil Code are:
ART. 419. Property is either of public dominion or of private ownership.
ART. 420. The following things are property of public dominion
(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and bridges
constructed by the State, banks shores roadsteads, and others of similar character;
(2) Those which belong to the State, without being for public use, and are intended for some
public service or for the development of the national wealth.
ART. 421. All other property of the State, which is not of the character stated in the preceding
article, is patrimonial property.
The Roppongi property is correctly classified under paragraph 2 of Article 420 of the Civil Code as property
belonging to the State and intended for some public service.
Has the intention of the government regarding the use of the property been changed because the lot has
been Idle for some years? Has it become patrimonial?
The fact that the Roppongi site has not been used for a long time for actual Embassy service does not
automatically convert it to patrimonial property. Any such conversion happens only if the property is
withdrawn from public use (Cebu Oxygen and Acetylene Co. v. Bercilles, 66 SCRA 481 [1975]). A property
continues to be part of the public domain, not available for private appropriation or ownership until there is
a formal declaration on the part of the government to withdraw it from being such (Ignacio v. Director of
Lands, 108 Phil. 335 [1960]).
The respondents enumerate various pronouncements by concerned public officials insinuating a change of
intention. We emphasize, however, that an abandonment of the intention to use the Roppongi property for
public service and to make it patrimonial property under Article 422 of the Civil Code must be
definite Abandonment cannot be inferred from the non-use alone specially if the non-use was attributable
not to the government's own deliberate and indubitable will but to a lack of financial support to repair and
improve the property (See Heirs of Felino Santiago v. Lazaro, 166 SCRA 368 [1988]). Abandonment must be
a certain and positive act based on correct legal premises.
A mere transfer of the Philippine Embassy to Nampeidai in 1976 is not relinquishment of the Roppongi
property's original purpose. Even the failure by the government to repair the building in Roppongi is not
abandonment since as earlier stated, there simply was a shortage of government funds. The recent
Administrative Orders authorizing a study of the status and conditions of government properties in Japan
were merely directives for investigation but did not in any way signify a clear intention to dispose of the
properties.
Executive Order No. 296, though its title declares an "authority to sell", does not have a provision in its text
expressly authorizing the sale of the four properties procured from Japan for the government sector. The
executive order does not declare that the properties lost their public character. It merely intends to make
the properties available to foreigners and not to Filipinos alone in case of a sale, lease or other disposition.
It merely eliminates the restriction under Rep. Act No. 1789 that reparations goods may be sold only to

Filipino citizens and one hundred (100%) percent Filipino-owned entities. The text of Executive Order No.
296 provides:
Section 1. The provisions of Republic Act No. 1789, as amended, and of other laws to the
contrary notwithstanding, the above-mentioned properties can be made available for sale,
lease or any other manner of disposition to non-Filipino citizens or to entities owned by nonFilipino citizens.
Executive Order No. 296 is based on the wrong premise or assumption that the Roppongi and the three
other properties were earlier converted into alienable real properties. As earlier stated, Rep. Act No. 1789
differentiates the procurements for the government sector and the private sector (Sections 2 and 12, Rep.
Act No. 1789). Only the private sector properties can be sold to end-users who must be Filipinos or entities
owned by Filipinos. It is this nationality provision which was amended by Executive Order No. 296.
Section 63 (c) of Rep. Act No. 6657 (the CARP Law) which provides as one of the sources of funds for its
implementation, the proceeds of the disposition of the properties of the Government in foreign countries,
did not withdraw the Roppongi property from being classified as one of public dominion when it mentions
Philippine properties abroad. Section 63 (c) refers to properties which are alienable and not to those
reserved for public use or service. Rep Act No. 6657, therefore, does not authorize the Executive
Department to sell the Roppongi property. It merely enumerates possible sources of future funding to
augment (as and when needed) the Agrarian Reform Fund created under Executive Order No. 299.
Obviously any property outside of the commerce of man cannot be tapped as a source of funds.
The respondents try to get around the public dominion character of the Roppongi property by insisting that
Japanese law and not our Civil Code should apply.
It is exceedingly strange why our top government officials, of all people, should be the ones to insist that in
the sale of extremely valuable government property, Japanese law and not Philippine law should prevail.
The Japanese law - its coverage and effects, when enacted, and exceptions to its provision is not
presented to the Court It is simply asserted that the lex loci rei sitae or Japanese law should apply without
stating what that law provides. It is a ed on faith that Japanese law would allow the sale.
We see no reason why a conflict of law rule should apply when no conflict of law situation exists. A conflict
of law situation arises only when: (1) There is a dispute over the title or ownership of an immovable, such
that the capacity to take and transfer immovables, the formalities of conveyance, the essential validity and
effect of the transfer, or the interpretation and effect of a conveyance, are to be determined (See
Salonga, Private International Law, 1981 ed., pp. 377-383); and (2) A foreign law on land ownership and its
conveyance is asserted to conflict with a domestic law on the same matters. Hence, the need to determine
which law should apply.
In the instant case, none of the above elements exists.
The issues are not concerned with validity of ownership or title. There is no question that the property
belongs to the Philippines. The issue is the authority of the respondent officials to validly dispose of
property belonging to the State. And the validity of the procedures adopted to effect its sale. This is
governed by Philippine Law. The rule of lex situs does not apply.
The assertion that the opinion of the Secretary of Justice sheds light on the relevance of the lex situsrule is
misplaced. The opinion does not tackle the alienability of the real properties procured through reparations
nor the existence in what body of the authority to sell them. In discussing who are capableof acquiring the
lots, the Secretary merely explains that it is the foreign law which should determine who can acquire the
properties so that the constitutional limitation on acquisition of lands of the public domain to Filipino
citizens and entities wholly owned by Filipinos is inapplicable. We see no point in belaboring whether or not
this opinion is correct. Why should we discuss who can acquire the Roppongi lot when there is no showing
that it can be sold?
The subsequent approval on October 4, 1988 by President Aquino of the recommendation by the
investigating committee to sell the Roppongi property was premature or, at the very least, conditioned on a
valid change in the public character of the Roppongi property. Moreover, the approval does not have the
force and effect of law since the President already lost her legislative powers. The Congress had already
convened for more than a year.
Assuming for the sake of argument, however, that the Roppongi property is no longer of public dominion,
there is another obstacle to its sale by the respondents.
There is no law authorizing its conveyance.
Section 79 (f) of the Revised Administrative Code of 1917 provides
Section 79 (f ) Conveyances and contracts to which the Government is a party. In cases in
which the Government of the Republic of the Philippines is a party to any deed or other
instrument conveying the title to real estate or to any other property the value of which is in
excess of one hundred thousand pesos, the respective Department Secretary shall prepare
the necessary papers which, together with the proper recommendations, shall be submitted
to the Congress of the Philippines for approval by the same. Such deed, instrument, or
contract shall be executed and signed by the President of the Philippines on behalf of the
Government of the Philippines unless the Government of the Philippines unless the authority
therefor be expressly vested by law in another officer. (Emphasis supplied)
The requirement has been retained in Section 48, Book I of the Administrative Code of 1987 (Executive
Order No. 292).
SEC. 48. Official Authorized to Convey Real Property. Whenever real property of the
Government is authorized by law to be conveyed, the deed of conveyance shall be executed
in behalf of the government by the following:
(1) For property belonging to and titled in the name of the Republic of the Philippines, by the
President, unless the authority therefor is expressly vested by law in another officer.

(2) For property belonging to the Republic of the Philippines but titled in the name of any
political subdivision or of any corporate agency or instrumentality, by the executive head of
the agency or instrumentality. (Emphasis supplied)
It is not for the President to convey valuable real property of the government on his or her own sole will.
Any such conveyance must be authorized and approved by a law enacted by the Congress. It requires
executive and legislative concurrence.
Resolution No. 55 of the Senate dated June 8, 1989, asking for the deferment of the sale of the Roppongi
property does not withdraw the property from public domain much less authorize its sale. It is a mere
resolution; it is not a formal declaration abandoning the public character of the Roppongi property. In fact,
the Senate Committee on Foreign Relations is conducting hearings on Senate Resolution No. 734 which
raises serious policy considerations and calls for a fact-finding investigation of the circumstances behind
the decision to sell the Philippine government properties in Japan.
The resolution of this Court in Ojeda v. Bidding Committee, et al., supra, did not pass upon the
constitutionality of Executive Order No. 296. Contrary to respondents' assertion, we did not uphold the
authority of the President to sell the Roppongi property. The Court stated that the constitutionality of the
executive order was not the real issue and that resolving the constitutional question was "neither
necessary nor finally determinative of the case." The Court noted that "[W]hat petitioner ultimately
questions is the use of the proceeds of the disposition of the Roppongi property." In emphasizing that "the
decision of the Executive to dispose of the Roppongi property to finance the CARP ... cannot be
questioned" in view of Section 63 (c) of Rep. Act No. 6657, the Court did not acknowledge the fact that the
property became alienable nor did it indicate that the President was authorized to dispose of the Roppongi
property. The resolution should be read to mean that in case the Roppongi property is re-classified to be
patrimonial and alienable by authority of law, the proceeds of a sale may be used for national economic
development projects including the CARP.
Moreover, the sale in 1989 did not materialize. The petitions before us question the proposed 1990 sale of
the Roppongi property. We are resolving the issues raised in these petitions, not the issues raised in 1989.
Having declared a need for a law or formal declaration to withdraw the Roppongi property from public
domain to make it alienable and a need for legislative authority to allow the sale of the property, we see no
compelling reason to tackle the constitutional issues raised by petitioner Ojeda.
The Court does not ordinarily pass upon constitutional questions unless these questions are properly
raised in appropriate cases and their resolution is necessary for the determination of the case (People v.
Vera, 65 Phil. 56 [1937]). The Court will not pass upon a constitutional question although properly presented
by the record if the case can be disposed of on some other ground such as the application of a statute or
general law (Siler v. Louisville and Nashville R. Co., 213 U.S. 175, [1909], Railroad Commission v. Pullman
Co., 312 U.S. 496 [1941]).
The petitioner in G.R. No. 92013 states why the Roppongi property should not be sold:
The Roppongi property is not just like any piece of property. It was given to the Filipino
people in reparation for the lives and blood of Filipinos who died and suffered during the
Japanese military occupation, for the suffering of widows and orphans who lost their loved
ones and kindred, for the homes and other properties lost by countless Filipinos during the
war. The Tokyo properties are a monument to the bravery and sacrifice of the Filipino people
in the face of an invader; like the monuments of Rizal, Quezon, and other Filipino heroes, we
do not expect economic or financial benefits from them. But who would think of selling these
monuments? Filipino honor and national dignity dictate that we keep our properties in Japan
as memorials to the countless Filipinos who died and suffered. Even if we should become
paupers we should not think of selling them. For it would be as if we sold the lives and blood
and tears of our countrymen. (Rollo- G.R. No. 92013, p.147)
The petitioner in G.R. No. 92047 also states:
Roppongi is no ordinary property. It is one ceded by the Japanese government in atonement
for its past belligerence for the valiant sacrifice of life and limb and for deaths, physical
dislocation and economic devastation the whole Filipino people endured in World War II.
It is for what it stands for, and for what it could never bring back to life, that its significance
today remains undimmed, inspire of the lapse of 45 years since the war ended, inspire of the
passage of 32 years since the property passed on to the Philippine government.
Roppongi is a reminder that cannot should not be dissipated ... (Rollo-92047, p. 9)
It is indeed true that the Roppongi property is valuable not so much because of the inflated prices fetched
by real property in Tokyo but more so because of its symbolic value to all Filipinos veterans and civilians
alike. Whether or not the Roppongi and related properties will eventually be sold is a policy determination
where both the President and Congress must concur. Considering the properties' importance and value, the
laws on conversion and disposition of property of public dominion must be faithfully followed.
WHEREFORE, IN VIEW OF THE FOREGOING, the petitions are GRANTED. A writ of prohibition is issued
enjoining the respondents from proceeding with the sale of the Roppongi property in Tokyo, Japan. The
February 20, 1990 Temporary Restraining Order is made PERMANENT.
SO ORDERED.

G.R. No. 140835

August 14, 2000

RAMON A. GONZALES, petitioner,

vs.
HON. ANDRES R. NARVASA, as Chairman, PREPARATORY COMMISSION ON CONSTITUTIONAL
REFORMS; HON. RONALDO B. ZAMORA, as Executive Secretary; COMMISSION ON AUDIT; ROBERTO
AVENTAJADO, as Presidential Consultant on Council of Economic Advisers/Economic Affairs; ANGELITO
C. BANAYO, as Presidential Adviser for/on Political Affairs; VERONICA IGNACIO-JONES, as Presidential
Assistant/ Appointment Secretary (In charge of appointments), respondents.
DECISION
GONZAGA-REYES, J.:
In this petition for prohibition and mandamus filed on December 9, 1999, petitioner Ramon A. Gonzales, in his
capacity as a citizen and taxpayer, assails the constitutionality of the creation of the Preparatory Commission on
Constitutional Reform (PCCR) and of the positions of presidential consultants, advisers and assistants. Petitioner
asks this Court to enjoin the PCCR and the presidential consultants, advisers and assistants from acting as such,
and to enjoin Executive Secretary Ronaldo B. Zamora from enforcing their advice and recommendations. In
addition, petitioner seeks to enjoin the Commission on Audit from passing in audit expenditures for the PCCR and
the presidential consultants, advisers and assistants. Finally, petitioner prays for an order compelling respondent
Zamora to furnish petitioner with information on certain matters.
On January 28, 2000, respondent Hon. Andres R. Narvasa, impleaded in his capacity as Chairman of the PCCR,
filed his Comment to the Petition. The rest of the respondents, who are being represented in this case by the
Solicitor General, filed their Comment with this Court on March 7, 2000. Petitioner then filed a Consolidated Reply
on April 24, 2000, whereupon this case was considered submitted for decision.
I. Preparatory Commission on Constitutional Reform
The Preparatory Commission on Constitutional Reform (PCCR) was created by President Estrada on November 26,
1998 by virtue of Executive Order No. 43 (E.O. No. 43) in order "to study and recommend proposed amendments
and/or revisions to the 1987 Constitution, and the manner of implementing the same."1 Petitioner disputes the
constitutionality of the PCCR on two grounds. First, he contends that it is a public office which only the legislature
can create by way of a law.2 Secondly, petitioner asserts that by creating such a body the President is intervening in
a process from which he is totally excluded by the Constitution the amendment of the fundamental charter.3
It is alleged by respondents that, with respect to the PCCR, this case has become moot and academic. We agree.
An action is considered "moot" when it no longer presents a justiciable controversy because the issues involved
have become academic or dead.4 Under E.O. No. 43, the PCCR was instructed to complete its task on or before
June 30, 1999.5 However, on February 19, 1999, the President issued Executive Order No. 70 (E.O. No. 70), which
extended the time frame for the completion of the commissions work, viz
SECTION 6. Section 8 is hereby amended to read as follows:
Time Frame. The Commission shall commence its work on 01 January 1999 and complete the same on or before
31 December 1999. The Commission shall submit its report and recommendations to the President within fifteen
(15) working days from 31 December 1999.
The PCCR submitted its recommendations to the President on December 20, 1999 and was dissolved by the
President on the same day. It had likewise spent the funds allotted to it.6 Thus, the PCCR has ceased to exist,
having lost its raison detre. Subsequent events have overtaken the petition and the Court has nothing left to
resolve.
The staleness of the issue before us is made more manifest by the impossibility of granting the relief prayed for by
petitioner. Basically, petitioner asks this Court to enjoin the PCCR from acting as such.7 Clearly, prohibition is an
inappropriate remedy since the body sought to be enjoined no longer exists. It is well established that prohibition is a
preventive remedy and does not lie to restrain an act that is already fait accompli.8 At this point, any ruling regarding
the PCCR would simply be in the nature of an advisory opinion, which is definitely beyond the permissible scope of
judicial power.
In addition to the mootness of the issue, petitioners lack of standing constitutes another obstacle to the successful
invocation of judicial power insofar as the PCCR is concerned.
The question in standing is whether a party has "alleged such a personal stake in the outcome of the controversy as
to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions."9 In assailing the constitutionality of E.O. Nos. 43 and
70, petitioner asserts his interest as a citizen and taxpayer.10 A citizen acquires standing only if he can establish that

he has suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government; the
injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable
action.11 In Kilosbayan, Incorporated v. Morato,12 we denied standing to petitioners who were assailing a lease
agreement between the Philippine Charity Sweepstakes Office and the Philippine Gaming Management
Corporation, stating that,
in Valmonte v. Philippine Charity Sweepstakes Office, G.R. No. 78716, Sept. 22, 1987, standing was denied to a
petitioner who sought to declare a form of lottery known as Instant Sweepstakes invalid because, as the Court held,
Valmonte brings the suit as a citizen, lawyer, taxpayer and father of three (3) minor children. But nowhere in his
petition does petitioner claim that his rights and privileges as a lawyer or citizen have been directly and personally
injured by the operation of the Instant Sweepstakes. The interest of the person assailing the constitutionality of a
statute must be direct and personal. He must be able to show, not only that the law is invalid, but also that he has
sustained or in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that
he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be
denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or
penalties by reason of the statute complained of.
We apprehend no difference between the petitioner in Valmonte and the present petitioners. Petitioners do not in
fact show what particularized interest they have for bringing this suit. It does not detract from the high regard for
petitioners as civic leaders to say that their interest falls short of that required to maintain an action under Rule 3, d
2.
Coming now to the instant case, petitioner has not shown that he has sustained or is in danger of sustaining any
personal injury attributable to the creation of the PCCR. If at all, it is only Congress, not petitioner, which can claim
any "injury" in this case since, according to petitioner, the President has encroached upon the legislatures powers
to create a public office and to propose amendments to the Charter by forming the PCCR. Petitioner has sustained
no direct, or even any indirect, injury. Neither does he claim that his rights or privileges have been or are in danger
of being violated, nor that he shall be subjected to any penalties or burdens as a result of the PCCRs activities.
Clearly, petitioner has failed to establish his locus standi so as to enable him to seek judicial redress as a citizen.
A taxpayer is deemed to have the standing to raise a constitutional issue when it is established that public funds
have been disbursed in alleged contravention of the law or the Constitution.13 , Thus payers action is properly
brought only when there is an exercise by Congress of its taxing or spending power.14 This was our ruling in a recent
case wherein petitioners Telecommunications and Broadcast Attorneys of the Philippines (TELEBAP) and GMA
Network, Inc. questioned the validity of section 92 of B.P. No. 881 (otherwise knows as the "Omnibus Election
Code") requiring radio and television stations to give free air time to the Commission on Elections during the
campaign period.15 The Court held that petitioner TELEBAP did not have any interest as a taxpayer since the
assailed law did not involve the taxing or spending power of Congress.16
Many other rulings have premised the grant or denial of standing to taxpayers upon whether or not the case
involved a disbursement of public funds by the legislature. In Sanidad v. Commission on Elections,17 the petitioners
therein were allowed to bring a taxpayers suit to question several presidential decrees promulgated by then
President Marcos in his legislative capacity calling for a national referendum, with the Court explaining that
...[i]t is now an ancient rule that the valid source of a statute Presidential Decrees are of such nature may be
contested by one who will sustain a direct injury as a result of its enforcement. At the instance of taxpayers, laws
providing for the disbursement of public funds may be enjoined, upon the theory that the expenditure of public funds
by an officer of the State for the purpose of executing an unconstitutional act constitutes a misapplication of such
funds. The breadth of Presidential Decree No. 991 carries an appropriation of Five Million Pesos for the effective
implementation of its purposes. Presidential Decree No. 1031 appropriates the sum of Eight Million Pesos to carry
out its provisions. The interest of the aforenamed petitioners as taxpayers in the lawful expenditure of these
amounts of public money sufficiently clothes them with that personality to litigate the validity of the Decrees
appropriating said funds.
In still another case, the Court held that petitioners the Philippine Constitution Association, Inc., a non-profit civic
organization - had standing as taxpayers to question the constitutionality of Republic Act No. 3836 insofar as it
provides for retirement gratuity and commutation of vacation and sick leaves to Senators and Representatives and
to the elective officials of both houses of Congress.18 And in Pascual v. Secretary of Public Works,19 the Court
allowed petitioner to maintain a taxpayers suit assailing the constitutional soundness of Republic Act No. 920
appropriating P85,000 for the construction, repair and improvement of feeder roads within private property. All these
cases involved the disbursement of public funds by means of a law.
Meanwhile, in Bugnay Construction and Development Corporation v. Laron,20 the Court declared that the trial court
was wrong in allowing respondent Ravanzo to bring an action for injunction in his capacity as a taxpayer in order to
question the legality of the contract of lease covering the public market entered into between the City of Dagupan
and petitioner. The Court declared that Ravanzo did not possess the requisite standing to bring such taxpayers suit
since "[o]n its face, and there is no evidence to the contrary, the lease contract entered into between petitioner and
the City shows that no public funds have been or will be used in the construction of the market building."

Coming now to the instant case, it is readily apparent that there is no exercise by Congress of its taxing or spending
power. The PCCR was created by the President by virtue of E.O. No. 43, as amended by E.O. No. 70. Under
section 7 of E.O. No. 43, the amount of P3 million is "appropriated" for its operational expenses "to be sourced from
the funds of the Office of the President." The relevant provision states Appropriations. The initial amount of Three Million Pesos (P3,000,000.00) is hereby appropriated for the operational
expenses of the Commission to be sourced from funds of the Office of the President, subject to the usual accounting
and auditing rules and regulations. Additional amounts shall be released to the Commission upon submission of
requirements for expenditures.
The appropriations for the PCCR were authorized by the President, not by Congress. In fact, there was no an
appropriation at all. "In a strict sense, appropriation has been defined as nothing more than the legislative
authorization prescribed by the Constitution that money may be paid out of the Treasury, while appropriation made
by law refers to the act of the legislature setting apart or assigning to a particular use a certain sum to be used in
the payment of debt or dues from the State to its creditors. "21 The funds used for the PCCR were taken from funds
intended for the Office of the President, in the exercise of the Chief Executives power to transfer funds pursuant to
section 25 (5) of article VI of the Constitution.
In the final analysis, it must be stressed that the Court retains the power to decide whether or not it will entertain a
taxpayers suit.22 In the case at bar, there being no exercise by Congress of its taxing or spending power, petitioner
cannot be allowed to question the creation of the PCCR in his capacity as a taxpayer, but rather, he must establish
that he has a "personal and substantial interest in the case and that he has sustained or will sustain direct injury as
a result of its enforcement."23 In other words, petitioner must show that he is a real party in interest - that he will
stand to be benefited or injured by the judgment or that he will be entitled to the avails of the suit. 24 Nowhere in his
pleadings does petitioner presume to make such a representation.
II. Presidential Consultants, Advisers, Assistants
The second issue raised by petitioner concerns the presidential consultants. Petitioner alleges that in 1995 and
1996, the President created seventy (70) positions in the Office of the President and appointed to said positions
twenty (20) presidential consultants, twenty-two (22) presidential advisers, and twenty-eight (28) presidential
assistants.25 Petitioner asserts that, as in the case of the PCCR, the President does not have the power to create
these positions.26
Consistent with the abovementioned discussion on standing, petitioner does not have the personality to raise this
issue before the Court. First of all, he has not proven that he has sustained or is in danger of sustaining any injury
as a result of the appointment of such presidential advisers. Secondly, petitioner has not alleged the necessary facts
so as to enable the Court to determine if he possesses a taxpayers interest in this particular issue. Unlike the PCCR
which was created by virtue of an executive order, petitioner does not allege by what official act, whether it be by
means of an executive order, administrative order, memorandum order, or otherwise, the President attempted to
"create" the positions of presidential advisers, consultants and assistants. Thus, it is unclear what act of the
President petitioner is assailing. In support of his allegation, petitioner merely annexed a copy of the Philippine
Government Directory (Annex "C") listing the names and positions of such presidential consultants, advisers and
assistants to his petition. However, appointment is obviously not synonymous with creation. It would be improvident
for this Court to entertain this issue given the insufficient nature of the allegations in the Petition.
III. Right to Information
Finally, petitioner asks us to issue a writ of mandamus ordering Executive Secretary Ronaldo B. Zamora to answer
his letter (Annex "D") dated October 4, 1999 requesting for the names of executive officials holding multiple
positions in government, copies of their appointments, and a list of the recipients of luxury vehicles seized by the
Bureau of Customs and turned over to Malacanang.27
The right to information is enshrined in Section 7 of the Bill of Rights which provides that
The right of the people to information on matters of public concern shall be recognized. Access to official records,
and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government
research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may
be provided by law.
Under both the 197328 and 1987 Constitution, this is a self-executory provision which can be invoked by any citizen
before the courts. This was our ruling in Legaspi v. Civil Service Commission,29 wherein the Court classified the right
to information as a public right and "when a [m]andamus proceeding involves the assertion of a public right, the
requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen, and therefore, part of the
general public which possesses the right." However, Congress may provide for reasonable conditions upon the
access to information. Such limitations were embodied in Republic Act No. 6713, otherwise knows as the "Code of
Conduct and Ethical Standards for Public Officials and Employees," which took effect on March 25, 1989. This law
provides that, in the performance of their duties, all public officials and employees are obliged to respond to letters
sent by the public within fifteen (15) working days from receipt thereof and to ensure the accessibility of all public

documents for inspection by the public within reasonable working hours, subject to the reasonable claims of
confidentiality.30
Elaborating on the significance of the right to information, the Court said in Baldoza v. Dimaano31 that "[t]he
incorporation of this right in the Constitution is a recognition of the fundamental role of free exchange of information
in a democracy. There can be no realistic perception by the public of the nations problems, nor a meaningful
democratic decisionmaking if they are denied access to information of general interest. Information is needed to
enable the members of society to cope with the exigencies of the times." The information to which the public is
entitled to are those concerning "matters of public concern", a term which "embrace[s] a broad spectrum of subjects
which the public may want to know, either because these directly affect their lives, or simply because such matters
naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine in a case by
case basis whether the matter at issue is of interest or importance, as it relates to or affects the public."32
1w phi 1

Thus, we agree with petitioner that respondent Zamora, in his official capacity as Executive Secretary, has a
constitutional and statutory duty to answer petitioners letter dealing with matters which are unquestionably of public
concern that is, appointments made to public offices and the utilization of public property. With regard to
petitioners request for copies of the appointment papers of certain officials, respondent Zamora is obliged to allow
the inspection and copying of the same subject to the reasonable limitations required for the orderly conduct of
official business.33
WHEREFORE, the petition is dismissed, with the exception that respondent Zamora is ordered to furnish petitioner
with the information requested.
SO ORDERED.

G.R. No. L-5279

October 31, 1955

PHILIPPINE ASSOCIATION OF COLLEGES AND UNIVERSITIES, ETC., petitioner,

vs.
SECRETARY OF EDUCATION and the BOARD OF TEXTBOOKS, respondents.
Manuel C. Briones, Vicente G. Sinco, Manuel V. Gallego and Enrique M. Fernando for petitioner.
Office of the Solicitor General Pompeyo Diaz and Assistant Solicitor General Francisco Carreon for respondents.
BENGZON, J.:
The petitioning colleges and universities request that Act No. 2706 as amended by Act No. 3075 and
Commonwealth Act No. 180 be declared unconstitutional, because: A. They deprive owners of schools and colleges
as well as teachers and parents of liberty and property without due process of law; B. They deprive parents of their
natural rights and duty to rear their children for civic efficiency; and C. Their provisions conferring on the Secretary
of Education unlimited power and discretion to prescribe rules and standards constitute an unlawful delegation of
legislative power.
A printed memorandum explaining their position in extenso is attached to the record.
The Government's legal representative submitted a mimeographed memorandum contending that, (1) the matter
constitutes no justiciable controversy exhibiting unavoidable necessity of deciding the constitutional questions; (2)
petitioners are in estoppel to challenge the validity of the said acts; and (3) the Acts are constitutionally valid.
Petitioners submitted a lengthy reply to the above arguments.
Act No. 2706 approved in 1917 is entitled, "An Act making the inspection and recognition of private schools and
colleges obligatory for the Secretary of Public Instruction." Under its provisions, the Department of Education has,
for the past 37 years, supervised and regulated all private schools in this country apparently without audible protest,
nay, with the general acquiescence of the general public and the parties concerned.
It should be understandable, then, that this Court should be doubly reluctant to consider petitioner's demand for
avoidance of the law aforesaid, specially where, as respondents assert, petitioners suffered no wrongnor allege
anyfrom the enforcement of the criticized statute.
It must be evident to any one that the power to declare a legislative enactment void is one which the judge,
conscious of the fallability of the human judgment, will shrink from exercising in any case where he can
conscientiously and with due regard to duty and official oath decline the responsibility. (Cooley Constitutional
Limitations, 8th Ed., Vol. I, p. 332.)
When a law has been long treated as constitutional and important rights have become dependent thereon,
the Court may refuse to consider an attack on its validity. (C. J. S. 16, p. 204.)
As a general rule, the constitutionality of a statute will be passed on only if, and to the extent that, it is
directly and necessarily involved in a justiciable controversy and is essential to the protection of the rights of
the parties concerned. (16 C. J. S., p. 207.)
In support of their first proposition petitioners contend that the right of a citizen to own and operate a school is
guaranteed by the Constitution, and any law requiring previous governmental approval or permit before such person
could exercise said right, amounts to censorship of previous restraint, a practice abhorent to our system of law and
government. Petitioners obviously refer to section 3 of Act No. 2706 as amended which provides that before a
private school may be opened to the public it must first obtain a permit from the Secretary of Education. The
Solicitor General on the other hand points out that none of the petitioners has cause to present this issue, because
all of them have permits to operate and are actually operating by virtue of their permits.1 And they do not assert that
the respondent Secretary of Education has threatened to revoke their permits. They have suffered no wrong under
the terms of lawand, naturally need no relief in the form they now seek to obtain.
It is an established principle that to entitle a private individual immediately in danger of sustaining a direct
injury as the result of that action and it is not sufficient that he has merely a general to invoke the judicial
power to determine the validity of executive or legislative action he must show that he has sustained or is
interest common to all members of the public. (Ex parte Levitt, 302 U. S. 633 82 L. Ed. 493.)
Courts will not pass upon the constitutionality of a law upon the complaint of one who fails to show that he is
injured by its operation. (Tyler vs. Judges, 179 U. S. 405; Hendrick vs. Maryland, 235 U. S. 610;
Coffmanvs. Breeze Corp., 323 U. S. 316-325.)
The power of courts to declare a law unconstitutional arises only when the interests of litigant require the
use of that judicial authority for their protection against actual interference, a hypothetical threat being
insufficient. (United Public Works vs. Mitchell, 330 U .S. 75; 91 L. Ed. 754.)

Bona fide suit.Judicial power is limited to the decision of actual cases and controversies. The authority to
pass on the validity of statutes is incidental to the decision of such cases where conflicting claims under the
Constitution and under a legislative act assailed as contrary to the Constitution are raised. It is legitimate
only in the last resort, and as necessity in the determination of real, earnest, and vital controversy between
litigants. (Taada and Fernando, Constitution of the Philippines, p. 1138.)
Mere apprehension that the Secretary of Education might under the law withdraw the permit of one of petitioners
does not constitute a justiciable controversy. (Cf. Com. ex rel Watkins vs. Winchester Waterworks (Ky.) 197 S. W.
2d. 771.)
And action, like this, is brought for a positive purpose, nay, to obtain actual and positive relief. (Salonga vs.Warner
Barnes, L-2245, January, 1951.) Courts do not sit to adjudicate mere academic questions to satisfy scholarly
interest therein, however intellectually solid the problem may be. This is specially true where the issues "reach
constitutional dimensions, for then there comes into play regard for the court's duty to avoid decision of
constitutional issues unless avoidance becomes evasion." (Rice vs. Sioux City, U. S. Sup. Ct. Adv. Rep., May 23,
1995, Law Ed., Vol. 99, p. 511.)
The above notwithstanding, in view of the several decisions of the United States Supreme Court quoted by
petitioners, apparently outlawing censorship of the kind objected to by them, we have decided to look into the
matter, lest they may allege we refuse to act even in the face of clear violation of fundamental personal rights of
liberty and property.
Petitioners complain that before opening a school the owner must secure a permit from the Secretary of Education.
Such requirement was not originally included in Act No. 2706. It was introduced by Commonwealth Act No. 180
approved in 1936. Why?
In March 1924 the Philippine Legislature approved Act No. 3162 creating a Board of Educational Survey to make a
study and survey of education in the Philippines and of all educational institutions, facilities and agencies thereof. A
Board chairmaned by Dr. Paul Munroe, Columbia University, assisted by a staff of carefully selected technical
members performed the task, made a five-month thorough and impartial examination of the local educational
system, and submitted a report with recommendations, printed as a book of 671 pages. The following paragraphs
are taken from such report:
PRIVATE-ADVENTURE SCHOOLS
There is no law or regulation in the Philippine Islands today to prevent a person, however disqualified by
ignorance, greed, or even immoral character, from opening a school to teach the young. It it true that in
order to post over the door "Recognized by the Government," a private adventure school must first be
inspected by the proper Government official, but a refusal to grant such recognition does not by any means
result in such a school ceasing to exist. As a matter of fact, there are more such unrecognized private
schools than of the recognized variety. How many, no one knows, as the Division of Private Schools keeps
records only of the recognized type.
Conclusion.An unprejudiced consideration of the fact presented under the caption Private Adventure
Schools leads but to one conclusion, viz.: the great majority of them from primary grade to university are
money-making devices for the profit of those who organize and administer them. The people whose children
and youth attend them are not getting what they pay for. It is obvious that the system constitutes a great evil.
That it should be permitted to exist with almost no supervision is indefensible. The suggestion has been
made with the reference to the private institutions of university grade that some board of control be
organized under legislative control to supervise their administration. The Commission believes that the
recommendations it offers at the end of this chapter are more likely to bring about the needed reforms.
Recommendations.The Commission recommends that legislation be enacted to prohibit the opening of
any school by an individual or organization without the permission of the Secretary of Public Instruction. That
before granting such permission the Secretary assure himself that such school measures up to proper
standards in the following respects, and that the continued existence of the school be dependent upon its
continuing to conform to these conditions:
(1) The location and construction of the buildings, the lighting and ventilation of the rooms, the nature of the
lavatories, closets, water supply, school furniture and apparatus, and methods of cleaning shall be such as
to insure hygienic conditions for both pupils and teachers.
(2) The library and laboratory facilities shall be adequate to the needs of instruction in the subjects taught.
(3) The classes shall not show an excessive number of pupils per teacher. The Commission recommends
40 as a maximum.
(4) The teachers shall meet qualifications equal to those of teachers in the public schools of the same grade.

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In view of these findings and recommendations, can there be any doubt that the Government in the exercise of its
police power to correct "a great evil" could validly establish the "previous permit" system objected to by petitioners?
This is what differentiates our law from the other statutes declared invalid in other jurisdictions. And if any doubt still
exists, recourse may now be had to the provision of our Constitution that "All educational institutions shall be under
the supervision and subject to regulation by the State." (Art. XIV, sec. 5.) The power to regulate establishments or
business occupations implies the power to require a permit or license. (53 C. J. S. 4.)
What goes for the "previous permit" naturally goes for the power to revoke such permit on account of violation of
rules or regulations of the Department.
II. This brings us to the petitioners' third proposition that the questioned statutes "conferring on the Secretary of
Education unlimited power and discretion to prescribe rules and standards constitute an unlawful delegation of
legislative power."
This attack is specifically aimed at section 1 of Act No. 2706 which, as amended, provides:
It shall be the duty of the Secretary of Public Instruction to maintain a general standard of efficiency in all
private schools and colleges of the Philippines so that the same shall furnish adequate instruction to the
public, in accordance with the class and grade of instruction given in them, and for this purpose said
Secretary or his duly authorized representative shall have authority to advise, inspect, and regulate said
schools and colleges in order to determine the efficiency of instruction given in the same,
"Nowhere in this Act" petitioners argue "can one find any description, either general or specific, of what constitutes a
'general standard of efficiency.' Nowhere in this Act is there any indication of any basis or condition to ascertain
what is 'adequate instruction to the public.' Nowhere in this Act is there any statement of conditions, acts, or factors,
which the Secretary of Education must take into account to determine the 'efficiency of instruction.'"
The attack on this score is also extended to section 6 which provides:
The Department of Education shall from time to time prepare and publish in pamphlet form the minimum
standards required of primary, intermediate, and high schools, and colleges granting the degrees of
Bachelor of Arts, Bachelor of Science, or any other academic degree. It shall also from time to time prepare
and publish in pamphlet form the minimum standards required of law, medical, dental, pharmaceutical,
engineering, agricultural and other medical or vocational schools or colleges giving instruction of a technical,
vocational or professional character.
Petitioners reason out, "this section leaves everything to the uncontrolled discretion of the Secretary of Education or
his department. The Secretary of Education is given the power to fix the standard. In plain language, the statute
turns over to the Secretary of Education the exclusive authority of the legislature to formulate standard. . . .."
It is quite clear the two sections empower and require the Secretary of Education to prescribe rules fixing minimum
standards of adequate and efficient instruction to be observed by all such private schools and colleges as may be
permitted to operate. The petitioners contend that as the legislature has not fixed the standards, "the provision is
extremely vague, indefinite and uncertain"and for that reason constitutionality objectionable. The best answer is
that despite such alleged vagueness the Secretary of Education has fixed standards to ensure adequate and
efficient instruction, as shown by the memoranda fixing or revising curricula, the school calendars, entrance and
final examinations, admission and accreditation of students etc.; and the system of private education has, in
general, been satisfactorily in operation for 37 years. Which only shows that the Legislature did and could, validly
rely upon the educational experience and training of those in charge of the Department of Education to ascertain
and formulate minimum requirements of adequate instruction as the basis of government recognition of any private
school.
At any rate, petitioners do not show how these standards have injured any of them or interfered with their operation.
Wherefore, no reason exists for them to assail the validity of the power nor the exercise of the power by the
Secretary of Education.
True, the petitioners assert that, the Secretary has issued rules and regulations "whimsical and capricious" and that
such discretionary power has produced arrogant inspectors who "bully heads and teachers of private schools."
Nevertheless, their remedy is to challenge those regulations specifically, and/or to ring those inspectors to book, in
proper administrative or judicial proceedingsnot to invalidate the law. For it needs no argument, to show that
abuse by the officials entrusted with the execution of a statute does not per se demonstrate the unconstitutionality of
such statute.
Anyway, we find the defendants' position to be sufficiently sustained by the decision in Alegra vs. Collector of
Customs, 53 Phil., 394 upon holding the statute that authorized the Director of Agriculture to "designate standards
for the commercial grades of abaca, maguey and sisal" against vigorous attacks on the ground of invalid delegation
of legislative power.

Indeed "adequate and efficient instruction" should be considered sufficient, in the same way as "public welfare"
"necessary in the interest of law and order" "public interest" and "justice and equity and substantial merits of the
case" have been held sufficient as legislative standards justifying delegation of authority to regulate. (See Taada
and Fernando, Constitution of the Philippines, p. 793, citing Philippine cases.)
On this phase of the litigation we conclude that there has been no undue delegation of legislative power.
In this connection, and to support their position that the law and the Secretary of Education have transcended the
governmental power of supervision and regulation, the petitioners appended a list of circulars and memoranda
issued by the said Department. However they failed to indicate which of such official documents was constitutionally
objectionable for being "capricious," or pain "nuisance"; and it is one of our decisional practices that unless a
constitutional point is specifically raised, insisted upon and adequately argued, the court will not consider it.
(Santiago vs. Far Eastern, 73 Phil., 408.)
We are told that such list will give an idea of how the statute has placed in the hands of the Secretary of Education
complete control of the various activities of private schools, and why the statute should be struck down as
unconstitutional. It is clear in our opinion that the statute does not in express terms give the
Secretary completecontrol. It gives him powers to inspect private schools, to regulate their activities, to give them
official permits to operate under certain conditions, and to revoke such permits for cause. This does not amount
to completecontrol. If any of such Department circulars or memoranda issued by the Secretary go beyond the
bounds of regulation and seeks to establish complete control, it would surely be invalid. Conceivably some of them
are of this nature, but besides not having before us the text of such circulars, the petitioners have omitted to specify.
In any event with the recent approval of Republic Act No. 1124 creating the National Board of Education, opportunity
for administrative correction of the supposed anomalies or encroachments is amply afforded herein petitioners. A
more expeditious and perhaps more technically competent forum exists, wherein to discuss the necessity,
convenience or relevancy of the measures criticized by them. (See also Republic Act No. 176.)
If however the statutes in question actually give the Secretary control over private schools, the question arises
whether the power of supervision and regulation granted to the State by section 5 Article XIV was meant to include
control of private educational institutions. It is enough to point out that local educators and writers think the
Constitution provides for control of Education by the State. (See Tolentino, Government of the Philippine
Constitution, Vol. II, p. 615; Benitez, Philippine Social Life and Progress, p. 335.)
The Constitution (it) "provides for state control of all educational institutions" even as it enumerates certain
fundamental objectives of all education to wit, the development of moral character, personal discipline, civic
conscience and vocational efficiency, and instruction in the duties of citizenship. (Malcolm & Laurel, Philippine
Constitutional Law, 1936.)
The Solicitor General cities many authorities to show that the power to regulate means power to control, and quotes
from the proceedings of the Constitutional Convention to prove that State control of private education was intended
by the organic law. It is significant to note that the Constitution grants power to supervise and to regulate. Which
may mean greater power than mere regulation.
III. Another grievance of petitionersprobably the most significantis the assessment of 1 per cent levied on gross
receipts of all private schools for additional Government expenses in connection with their supervision and
regulation. The statute is section 11-A of Act No. 2706 as amended by Republic Act No. 74 which reads as follows:
SEC. 11-A. The total annual expense of the Office of Private Education shall be met by the regular amount
appropriated in the annual Appropriation Act: Provided, however, That for additional expenses in the
supervision and regulation of private schools, colleges and universities and in the purchase of textbook to be
sold to student of said schools, colleges and universities and President of the Philippines may authorize the
Secretary of Instruction to levy an equitable assessment from each private educational institution equivalent
to one percent of the total amount accruing from tuition and other fees: . . . and non-payment of the
assessment herein provided by any private school, college or university shall be sufficient cause for the
cancellation by the Secretary of Instruction of the permit for recognition granted to it.
Petitioners maintain that this is a tax on the exercise of a constitutional rightthe right to open a school, the liberty
to teach etc. They claim this is unconstitutional, in the same way that taxes on the privilege of selling religious
literature or of publishing a newspaperboth constitutional privilegeshave been held, in the United States, to be
invalid as taxes on the exercise of a constitutional right.
The Solicitor General on the other hand argues that insofar as petitioners' action attempts to restrain the further
collection of the assessment, courts have no jurisdiction to restrain the collection of taxes by injunction, and in so far
as they seek to recover fees already paid the suit, it is one against the State without its consent. Anyway he
concludes, the action involving "the legality of any tax impost or assessment" falls within the original jurisdiction of
Courts of First Instance.
There are good grounds in support of Government's position. If this levy of 1 per cent is truly a mere feeand not a
taxto finance the cost of the Department's duty and power to regulate and supervise private schools, the exaction

may be upheld; but such point involves investigation and examination of relevant data, which should best be carried
out in the lower courts. If on the other hand it is a tax, petitioners' issue would still be within the original jurisdiction of
the Courts of First Instance.
The last grievance of petitioners relates to the validity of Republic Act No. 139 which in its section 1 provides:
The textbooks to be used in the private schools recognized or authorized by the government shall be
submitted to the Board (Board of Textbooks) which shall have the power to prohibit the use of any of said
textbooks which it may find to be against the law or to offend the dignity and honor of the government and
people of the Philippines, or which it may find to be against the general policies of the government, or which
it may deem pedagogically unsuitable.
This power of the Board, petitioners aver, is censorship in "its baldest form". They cite two U. S. cases (Miss. and
Minnesota) outlawing statutes that impose previous restraints upon publication of newspapers, or curtail the right of
individuals to disseminate teachings critical of government institutions or policies.
Herein lies another important issue submitted in the cause. The question is really whether the law may be enacted
in the exercise of the State's constitutional power (Art. XIV, sec. 5) to supervise and regulate private schools. If that
power amounts to control of private schools, as some think it is, maybe the law is valid. In this connection we do not
share the belief that section 5 has added new power to what the State inherently possesses by virtue of the police
power. An express power is necessarily more extensive than a mere implied power. For instance, if there is conflict
between an express individual right and the express power to control private education it cannot off-hand be said
that the latter must yield to the formerconflict of two express powers. But if the power to control education
is merely implied from the police power, it is feasible to uphold the express individual right, as was probably the
situation in the two decisions brought to our attention, of Mississippi and Minnesota, states where constitutional
control of private schools is not expressly produced.
However, as herein previously noted, no justiciable controversy has been presented to us. We are not informed that
the Board on Textbooks has prohibited this or that text, or that the petitioners refused or intend to refuse to submit
some textbooks, and are in danger of losing substantial privileges or rights for so refusing.
The average lawyer who reads the above quoted section of Republic Act 139 will fail to perceive anything
objectionable. Why should not the State prohibit the use of textbooks that are illegal, or offensive to the Filipinos or
adverse to governmental policies or educationally improper? What's the power of regulation and supervision for?
But those trained to the investigation of constitutional issues are likely to apprehend the danger to civil liberties, of
possible educational dictatorship or thought control, as petitioners' counsel foresee with obvious alarm. Much
depends, however, upon the execution and implementation of the statute. Not that constitutionality depends
necessarily upon the law's effects. But if the Board on Textbooks in its actuations strictly adheres to the letter of the
section and wisely steers a middle course between the Scylla of "dictatorship" and the Charybdis of "thought
control", no cause for complaint will arise and no occasion for judicial review will develop. Anyway, and again,
petitioners now have a more expeditious remedy thru an administrative appeal to the National Board of Education
created by Republic Act 1124.
Of course it is necessary to assure herein petitioners, that when and if, the dangers they apprehend materialize and
judicial intervention is suitably invoked, after all administrative remedies are exhausted, the courts will not shrink
from their duty to delimit constitutional boundaries and protect individual liberties.
IV. For all the foregoing considerations, reserving to the petitioners the right to institute in the proper court, and at
the proper time, such actions as may call for decision of the issue herein presented by them, this petition for
prohibition will be denied. So ordered.