Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-25716 July 28, 1966

FERNANDO LOPEZ, petitioner,

vs.
GERARDO ROXAS and PRESIDENTIAL ELECTORAL TRIBUNAL, respondents.

Vicente Francisco for petitioner.

Sycip and Salazar for respondents.

CONCEPCION, C.J.:

Petitioner Fernando Lopez and respondent Gerardo Roxas were the main contenders for the Office
of Vice-President of the Philippines in the general elections held on November 9, 1965. By
Resolution No. 2, approved on December 17, 1965, the two Houses of Congress, in joint session
assembled as the board charged with the duty to canvass the votes then cast for President and Vice
President of the Philippines, proclaimed petitioner Fernando Lopez elected to the latter office with
3,531,550 votes, or a plurality of 26,724 votes over his closest opponent, respondent Gerardo M.
Roxas, in whose favor 3,504,826 votes had been tallied, according to said resolution. On January 5,
1966, respondent filed, with the Presidential Electoral Tribunal, Election Protest No. 2, contesting the
election of petitioner herein as Vice-President of the Philippines, upon the ground that it was not he,
but said respondent, who had obtained the largest number of votes for said office.

On February 22, 1966, petitioner Lopez instituted in the Supreme Court the present original action,
for prohibition with preliminary injunction, against respondent Roxas, to prevent the Presidential
Electoral Tribunal from hearing and deciding the aforementioned election contest, upon the ground
that Republic Act No. 1793, creating said Tribunal, is "unconstitutional," and that, "all proceedings
taken by it are a nullity."

Petitioner's contention is predicated upon the ground, that Congress may not, by law, authorize an
election contest for President and Vice-President, the Constitution being silent thereon; that such
contest tends to nullify the constitutional authority of Congress to proclaim the candidates elected for
President and Vice-President; that the recount of votes by the Presidential Electoral Tribunal, as an
incident of an election contest, is inconsistent with the exclusive power of Congress to canvass the
election returns for the President and the Vice-President; that no amendment to the Constitution
providing for an election protest involving the office of President and Vice-President has been
adopted, despite the constitutional amendment governing election contests for Members of
Congress; that the tenure of the President and the Vice-President is fixed by the Constitution and
cannot be abridged by an Act of Congress, like Republic Act No. 1793; that said Act has the effect of
amending the Constitution, in that it permits the Presidential Electoral Tribunal to review the
congressional proclamation of the president-elect and the vice-president-elect; that the constitutional
convention had rejected the original plan to include in the Constitution a provision authorizing
election contest affecting the president-elect and the vice-president-elect before an electoral
commission; that the people understood the Constitution to authorize election contests only for
Members of Congress, not for President and Vice-President, and, in interpreting the Constitution, the
people's intent is paramount; that it is illegal for Justices of the Supreme Court to sit as members of
the Presidential Electoral Tribunal, since the decisions thereof are appealable to the Supreme Court
on questions of law; that the Presidential Electoral Tribunal is a court inferior to the Supreme Court;
and that Congress cannot by legislation appoint in effect the members of the Presidential Electoral
Tribunal.

Pursuant to the Constitution, "the Judicial power shall be vested in one Supreme Court and in such
inferior courts as may be established by law.1

This provision vests in the judicial branch of the government, not merely some specified
or limited judicial power, but "the" judicial power under our political system, and, accordingly, the
entirety or "all" of said power, except, only, so much as the Constitution confers upon some other
agency, such as the power to "judge all contests relating to the election, returns and qualifications" of
members of the Senate and those of the House of Representatives which is vested by the
fundamental law solely in the Senate Electoral Tribunal and the House Electoral Tribunal,
respectively.2

Judicial power is the authority to settle justiciable controversies or disputes involving rights that are
enforceable and demandable before the courts of justice or the redress of wrongs for violations of
such rights.3 The proper exercise of said authority requires legislative action: (1) defining such
enforceable and demandable rights and/or prescribing remedies for violations thereof; and (2)
determining the court with jurisdiction to hear and decide said controversies or disputes, in the first
instance and/or on appeal. For this reason, the Constitution ordains that "Congress shall have the
power to define, prescribe, and apportion the jurisdiction of the various courts," subject to the
limitations set forth in the fundamental law.4

Prior to the approval of Republic Act No. 1793, a defeated candidate for president or vice-president,
who believe that he was the candidate who obtained the largest number of votes for either office,
despite the proclamation by Congress of another candidate as the president-elect or vice-president-
elect, had no legal right to demand by election protest a recount of the votes cast for the office
concerned, to establish his right thereto. As a consequence, controversies or disputes on this matter
were not justiciable.5

Section 1 of Republic Act No. 1793, which provides that:

There shall be an independent Presidential Electoral Tribunal ... which shall be the sole
judge of all contests relating to the election, returns, and qualifications of the president-elect
and the vice-president-elect of the Philippines.

has the effect of giving said defeated candidate the legal right to contest judicially the election of the
President-elect or Vice-President-elect and to demand a recount of the votes cast for the office
involved in the litigation as well as to secure a judgment declaring that he6 is the one elected
president or vice-president, as the case may be,7 and that, as such, he is entitled to assume the
duties attached to said office. And by providing, further, that the Presidential Electoral Tribunal "shall
be composed of the Chief Justice and the other ten Members of the Supreme Court," said legislation
has conferred upon such Court an additional original jurisdiction of an exclusive character.8

Republic Act No. 1793 has not created a new or separate court. It has merely conferred upon the
Supreme Court the functions of a Presidential Electoral Tribunal. The result of the enactment may be
likened to the fact that courts of first instance perform the functions of such ordinary courts of first
instance,9 those of court of land registration, 10those of probate courts, 11 and those of courts of
juvenile and domestic relations. 12 It is, also, comparable to the situation obtaining when the
municipal court of a provincial capital exercises its authority, pursuant to law, over a limited number
of cases which were previously within the exclusive jurisdiction of courts of first instance. 13
In all of these instances, the court (court of first instance or municipal court) is only one, although
the functions may be distinct and, even, separate. Thus the powers of a court of first instance, in the
exercise of its jurisdiction over ordinary civil cases, are broader than, as well as distinct and separate
from, those of the same court acting as a court of land registration or a probate court, or as a court of
juvenile and domestic relations. So too, the authority of the municipal court of a provincial capital,
when acting as such municipal court, is, territorially more limited than that of the same court when
hearing the aforementioned cases which are primary within the jurisdiction of courts of first instance.
In other words, there is only one court, although it may perform the functions pertaining to several
types of courts, each having some characteristics different from those of the others.

Indeed, the Supreme Court, 14 the Court of Appeals 15 and courts of first instance, 16 are vested with
original jurisdiction, as well as with appellate jurisdiction, in consequence of which they are booth
trial courts and appellate courts, without detracting from the fact that there is only one Supreme
Court, one Court of Appeals, and one court of first instance, clothed with authority to discharged said
dual functions. A court of first instance, when performing the functions of a probate court or a court
of land registration, or a court of juvenile and domestic relations, although with powers less broad
than those of a court of first instance, hearing ordinary actions, is not inferior to the latter, for one
cannot be inferior to itself. So too, the Presidential Electoral Tribunal is not inferior to the Supreme
Court, since it is the same Court although the functions peculiar to said Tribunal are more limited in
scope than those of the Supreme Court in the exercise of its ordinary functions. Hence, the
enactment of Republic Act No. 1793, does not entail an assumption by Congress of the power of
appointment vested by the Constitution in the President. It merely connotes the imposition of
additional duties upon the Members of the Supreme Court. 17

Moreover, the power to be the "judge ... of ... contests relating to the election, returns, and
qualifications" of any public officer is essentially judicial. As such under the very principle of
separation of powers invoked by petitioner herein it belongs exclusively to the judicial department,
except only insofar as the Constitution provides otherwise. This is precisely the reason why said
organic law ordains that "the Senate and the House of Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all contests relating to the election, returns, and
qualifications of their respective Members" (Article VI, Section 11, of the Constitution). In other
words, the purpose of this provision was to exclude the power to decide such contests relating to
Members of Congress which by nature is judicial 18 from the operation of the general grant of
judicial power 19 to "the Supreme Court and such inferior courts as may be established by law.

Instead of indicating that Congress may not enact Republic Act No. 1793, the aforementioned
provision of the Constitution, establishing said Electoral Tribunals for Members of Congress only,
proves the exact opposite, namely: that the Constitution intended to vest Congress with
discretion 20 to determine by law whether or not the election of a president-elect or that of a vice-
president-elect may be contested and, if Congress should decide in the affirmative, which court of
justice shall have jurisdiction to hear the contest. It is, even, debatable whether such jurisdiction may
be conferred, by statute, to a board, commission or tribunal composed partly of Members of
Congress and Members of the Supreme Court because of its possible inconsistency with the
constitutional grant of the judicial power to "the Supreme Court and ... such inferior courts as may be
established by law," for said board, commission or tribunal would be neither "the Supreme
Court, 21 nor, certainly, "such inferior courts as, may be established by law."

It follows, therefore, not only that Republic Act No. 1793 is not inconsistent with the Constitution or
with the principle of separation of powers underlying the same, but, also, that it is in harmony with
the aforementioned grant of "the judicial power" to said courts. Indeed, when Claro M. Recto,
Chairman of the Constitutional Convention, proposed that the original move therein to include in the
fundamental law a provision creating an Electoral Commission 22 to hear election contests against
the President-elect and the Vice-President-elect, be given up, he expressed the view that the
elimination of said provision would have the effect of leaving in the hands of the legislative
department the power to decide what entity or body would "look into the protests for the positions of
President and Vice-President." 23 Twenty-two (22) years later, or on May 3, 1957 then Senator Recto
reiterated this view, when, in the course of the debates on the Bill which later became Republic Act
No. 1793, he stated:

... Mr. President, as far as I can remember, the intention of the constitutional convention was
to leave this matter to ordinary legislation.

Such was, also, the impression of Dr. Jose M. Aruego, another prominent Member of the
Convention, who says 24that

Election protests for the Presidency and the Vice-Presidendency were left to be judged in a
manner and by a body decided by the National Assembly. (Emphasis ours.)

No less than one of the main counsel for petitioner herein, himself, another delegate to the
Constitutional Convention, evidently shared this view as late as September 30, 1965, for the
introduction to his 1965 edition of "the Revised Election Code" states that "he will always be
remembered for ... his famous bill creating the Presidential Electoral Tribunal ...". Indeed as a
member of the Senate, on January 3, 1950, he Introduced Senate Bill No. 1 seeking to create a
Presidential Electoral Tribunal "to try, hear and decide protests contesting the election of the
President and the Vice-President of the Philippines", which shall be composed of three Justices of
the Supreme Court, including the Chief Justice, and four Senators and four Members of the House
of Representatives.

Then, again, the records of the Convention show, that in voting eventually to eliminate, from the draft
of the Constitution, the provision establishing a Presidential Electoral Commission, the delegates
were influenced by the fact that there was no similar provision in the Federal Constitution of the
United States. Having followed the pattern thereof, it must be assumed, therefore, in the absence of
any indicium to the contrary,25 that the Convention had adhered, also, to the interpretation given to
this feature of said Federal Constitution, as may be deduced from the fact that, by an act of
Congress of the United States, approved on January 29, 1877, an Electoral Commission was
created to hear and decide certain issues concerning the election of the President of said nation held
in 1876. It is, also worthy of notice that pursuant to said Act, nothing therein "shall be held to impair
or affect any right now existing under the Constitution and laws to question, by proceedings in the
judicial courts of the United States, the right or title of the person who shall be declared elected, or
who shall claim to be President or Vice-President of the United States, if any such right
exists". 26 Thus the absence of a provision in said Federal Constitution governing protests against
the election of the President and the Vice-President had been construed to be without prejudice to
the right of the defeated candidate to file a protest before the courts of justice of the United States, if
the laws thereof permitted it. In other words, the Federal Congress was deemed clothed with
authority to determine, by ordinary legislation, whether or not protests against the election of said
officers may properly be entertained by the judicial department.

Needless to say, the power of congress to declare who, among the candidates for President and/or
Vice-President, has obtained the largest number of votes, is entirely different in nature from and not
inconsistent with the jurisdiction vested in the Presidential Electoral Tribunal by Republic Act No.
1793. Congress merely acts as a national board of canvassers, charged with
the ministerial and executive duty 27 to make said declaration, on the basis of the election returns
duly certified by provincial and city boards of canvassers. 28 Upon the other hand, the Presidential
Electoral Tribunal has the judicial power to determine whether or not said duly certified election
returns have been irregularly made or tampered with, or reflect the true result of the elections in the
areas covered by each, and, if not, to recount the ballots cast, and, incidentally thereto, pass upon
the validity of each ballot or determine whether the same shall be counted, and, in the affirmative, in
whose favor, which Congress has power to do.

It is, likewise, patent that the aforementioned authority of the Presidential Electoral Tribunal to
determine whether or not the protestant has a better right than the President and/or the Vice-
President declared elected by Congress would not abridge the constitutional tenure. If the evidence
introduced in the election protest shows that the person really elected president or vice-president is
the protestant, not the person declared elected by Congress, then the latter had
legally no constitutional tenure whatsoever, and, hence, he can claim no abridgement thereof. 1wph1.t

It is similarly obvious that, in imposing upon the Supreme Court the additional duty of performing the
functions of a Presidential Electoral Tribunal, Congress has not, through Republic Act No. 1793,
encroached upon the appointing power of the Executive. The imposition of new duties constitutes,
neither the creation of an office, nor the appointment of an officer. 29

In view of a resolution of this Court dated July 8, 1966, upholding the validity of Republic Act No.
1793, upon the ground that it merely vests additional jurisdiction in the Supreme Court, petitioner
has filed a motion dated July 13, 1966, praying this Court "to clarify whether or not" this "election
contest should as a consequence ... be docketed with, and the records thereof transferred, to this
Supreme Court, and all pleadings, papers and processes relative thereto should thence forth be filed
with it". The motion is, evidently, based upon the premise that the Supreme Court is different and
distinct from the Presidential Electoral Tribunal, which is erroneous, as well as contrary to the ruling
made in said resolution.

Wherefore, the petition herein is hereby dismissed and the writs therein prayed for denied
accordingly. The aforesaid motion is, moreover, denied. With costs against the petitioner. It is so
ordered.

Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, J.P. Bengzon, Zaldivar, Sanchez and Castro, JJ.,
concur.

Footnotes

1 Article VIII, Section 1, of the Constitution.

2 Article VI, Section 11, of the Constitution.

3Black, Constitutional Law, 2nd ed. p. 82; Ruperto vs. Torres, G.R. No. L-3785, February 27,
1957, citing 34 C.J. 1183-1184; Wheeling & Elm Grove Railroad Co., Appt. vs. Town of
Philadelphia, et al., 4 LRA (NS) pp. 321, 328-329.

4 Article VIII, Section 2.

5Thus in Channie Tan vs. Republic, G.R. No. L-14159, April 18, 1960, in which this Court
ruled that an action for judicial declaration of citizenship was held not to be a justiciable
controversy, because there is nolegislation authorizing the institution of such proceeding.
Tan Yu Chin vs. Republic, G.R. No. L-15775, April 29, 1961; Tan vs. Republic, G.R. No. L-
16108, October 31, 1961; Santiago vs. Commissioner, G.R. No. L-14653, January 31, 1963;
Reyes vs. Republic, G.R. No. L-17642, November 27, 1964; Dy Poco vs. Commissioner of
Immigration, et al., 13, March 31, 1966. See, also, Mabanag vs. Vito, 78 Phil. 1, in which it
was held that "political questions are not within the province of the judiciary, except to the
extent that power to deal with such questions has been conferred upon the courts
by express constitutional or statutory provision."

6 Not the candidate proclaimed elected by Congress.

7 If the evidence so establishes it.

8See, for instance, Sec. 2. Act 496 (Land Registration Act), Sec. 14, Act 1956 (Insolvency
jaw), and Sec. 8, CA 473 (Revised Naturalization Law), which confer upon courts of first
instance additional original jurisdiction.

9The Courts Of First Instance function not only as Courts of General Jurisdiction, i.e.,
competent to decide all cases, civil and criminal, within their own jurisdiction (12 CJS 20-21, I
Moran xxxiii; Rep. Act 296. Secs. 39, 44) but also as Courts of Special Jurisdiction,
empowered to decide certain specified matters, such as probate, admiralty, naturalization,
bankruptcy, cadastral and land registration cases.

10The powers and functions of the Court of Land Registration, established by virtue of Act
496, Sec. 2, were subsequently conferred "upon the Courts of First Instance and judges
thereof," by authority of Sec. 10, Act 2347.

11Aside from performing the functions of a probate court (Sec. 44, par. [e], Republic Act 296,
as amended), courts of first instance also act as admiralty courts (Sec. 44[d], Republic Act
296), bankruptcy courts (Act 1956), and as courts of juvenile and domestic
relations (Republic Act No. 1401, Sec. 1).

12 Except in Manila. Republic Act No. 409, Sec. 38-A, as amended by Republic Act No. 1401.

13See Sec. 88, Republic Act 296, as amended, pursuant to which "municipal judges may,
with the approval of the Secretary of Justice, be assigned by the respective district judge in
each case to hear and determine cadastral or land registration cases covering lots where
there is no controversy or opposition, or contested lots the value of which does not exceed
ten thousand pesos, x x x ." Also, said municipal and city judges, "in the absence of the
District Judge from the province, may exercise within the province like interlocutory
jurisdiction as the Court of First Instance, which shall be held to include the hearing of all
motions for the appointment of a receiver, for temporary injunctions, and for all other orders
of the court which are not final in their character and do not involve a decision of the case on
its merits, and the hearing of petitions for a writ of habeas corpus." Sec. 87, Republic Act
296 confers upon municipal judges in the capitals of provinces and sub-provinces and judges
of city courts like jurisdiction as the Court of First Instance to try parties charged with an
offense committed within their respective jurisdictions, in which the penalty provided by law
does not exceed prision correccional or imprisonment for not more than six years or fine not
exceeding six thousand pesos or both, and in the absence of the district judge, like
jurisdiction within the province as the Court of First Instance to hear application for bail.

In addition to the original and the appellate jurisdictions conferred upon the Supreme Court
14

by the Constitution (Art. VIII, Sec. 2), Republic Act 296, Sec. 17 vests it
with concurrent jurisdiction with courts of first instance.

15 Sections 29 and 30, Republic Act 296, as amended.

16 Sections 44 and 45, Republic Act 296, as amended.

17The imposition by the legislature to a constitutional body of additional duties not

inconsistent with those already prescribed by the Constitution is a practice recognized in
many jurisdiction. See, 42 Am. Jur. Public Officers, Secs. 31, 9, pp. 902, 1949; State vs.
Caldwell, 23 So. 2d 855, Terrell, J., Supreme Court of Florida; Rouse vs. Johnson, 28 S.W.
(2d) 745, 70 A.L.R. 1077, CA Kentucky (1930). Even this Court has recognized the authority
of the Legislature to add to, but not to diminish, the jurisdiction of the Supreme Court. In re
Guaria, 24 Phil. 37; United States vs. Limsiongco, 41 Phil. 94, 2 PAL. 309.

"The Constitution makes each house of Congress the judge as to the elections and returns
18

of its members. This would appear on its face to be essentially judicial function. In fact, in
England and in some of the British dominions, it is assigned to the courts. This was not the
case, however, at the time of the adoption of our Constitution and we followed the plan then
existing in that country whereby the House of Commons passed on election contests."
American Constitutional System Mathews p. 98.

"There are certain matters which each house determines for itself, and in respect to
which its decision is conclusive. x x x it decides upon the election and qualifications
of its own members. x x x In determining questions concerning contested seat the
house will exercise judicial power, but generally in accordance with a course of
practice which has sprung from precedents in similar cases, and no other authority is
at liberty to interfere." Cooley, Thomas M., A Treatise on the Constitutional
Limitations, Vol. 1, pp. 270-271, 1927 ed.

"Determining of existing facts and resultant and controverted rights and duties, is
a judicial function." 23 W & P 147 (1965 Pocket Part)

"After primary election has been held and results have been ascertained, question
regarding qualifications of candidates becomes one which relates to his eligibility to
hold office to which he aspires and one which requires the exercise of "judicial
functions" to decide x x x ". State ex rel. Tanner vs. Duncan, 10 So. 2d 507, 511, 23
W & P. 148 (1965 Pocket Part)

19 Made in Section 1 of Art. VIII of the Constitution.

Which is denied thereto in connection with election contests affecting its own members.
20

21In which Members of Congress may not under the principle of separation of powers
sit.

22 Consisting of members of the legislative department and members of the Supreme Court.

23The journal of the Convention shows that the following statements were made on the floor
thereof:

"The Acting President. Is there any objection to this proposition? (Silence). The
Chair does not hear any. Approved.
 "Delegate Saguin. For an information. It seems that this Constitution does not
contain any provision with respect to the entity or body which will look into the
protests for the positions of President and Vice-President.

"President Recto. Neither does the American constitution contain a provision over
the subject.

"Delegate Saguin. But, then, who will decide these protests ?

"President Recto. I suppose that the National Assembly will decide that."
(Emphasis ours.)

24 In his work on "The Framing of the Philippine Constitution" Vol. I, p. 410, printed in 1937.

25 And none has been brought to our attention.

26 Emphasis ours.

27 Just like that of any municipal, city or provincial board of canvassers.

28 Article VII, Section 2, Constitution of the Philippines.

29"Imposition of new duties upon an officer already elected or appointed does not constitute
the creation of an office or the appointment of an officer. When new duties are thus attached
to an office, a reappointment of the officer need not be made." (42 Am. Jur., Public Officers,
Sec. 90, p. 949).

"In the United States, except for such offices as are created by Constitution, the
creation of public offices is primarily a legislative function. In so far as the legislative
power in this respect is not restricted by constitutional provisions, it is supreme, and
the legislature may decide for itself what offices are suitable, necessary, or
convenient. When in the exigencies of government it is necessary to create and
define new duties, the legislative department has the discretion to determine whether
additional offices shall be created or these duties shall be attached to and become ex
officio duties of existing offices." (42 Am. Jur., Public Officers, Sec. 31, p. 902; 40
ALR 1052, 1057.)

x x x the legislature may impose additional powers and duties on

both constitutional and statutory officers so long as such duties are not inconsistent
with their duties imposed by the constitution. x x x the legislature may make an
existing officer the member of another and different board by enlarging his duties."
(State vs. Caldwell, 23 So. 2d 855, Terrell, Supreme Court of Florida.)

"That the Legislature may annex additional duties to a constitutional office, or confer
powers upon a constitutional officer other than those expressly prescribed by the
Constitution, unless inhibited from so doing by that instrument, is everywhere
recognized and practiced in this and other jurisdictions, x x x ." (Rouse vs. Johnson,
28 S.W. [2d] 745, 70 ALR. 1077, C.A. Kentucky [1930].)

x x x Congress may create an office, it cannot appoint the officer x x x . It cannot be

doubted, x x x that Congress may increase the power and duties of an existing office
 without thereby rendering it necessary that the incumbent should be again nominated
and appointed. (Shoemaker vs. United States, 37 Law ed. 170, 185.)

Fernando Lopez vs Gerardo Roxas

October 30, 2011
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17 SCRA 756 Political Law Constitutional Law Judicial Power Defined

Fernando Lopez and Gerardo Roxas were the candidates for Vice President in the 1965
elections. Lopez won the election. Roxas appealed his loss before the Presidential Electoral
Tribunal (PET). The PET was created by RA 1793. It is provided in the law that:
There shall be an independent Presidential Electoral Tribunal . . . which shall be the sole
judge of all contests relating to the election, returns, and qualifications of the president-elect
and the Vice-president elect of the Philippines.
In effect, a losing candidate would have the right to appeal his loss. Lopez assailed the law
and he sought to enjoin Roxas and the PET from proceeding with the case. Lopez averred
that the PET is unconstitutional for it was not provided for in the constitution. Also, since the
PET is composed of the Chief Justice and the other ten members of the SC any decision of
the PET cannot be validly appealed before the SC or that there may be conflict that may arise
once a PET decision is appealed before the SC.
ISSUE: Whether or not the PET is a valid body.
HELD: Yes. In coming up with the PET, the Congress merely conferred a new function to the
Supreme Court. Such is within its power, the Constitution allowed Congress to determine
which body should decide controversies relating to the election of the President or the Vice
President. RA 1793 did not create another court within the SC for pursuant to the Constitution,
the Judicial power shall be vested in one SC and in such inferior courts as may be
established by law
The Supreme Court went on to emphasize that the fundamental law vests in the judicial
branch of the government, not merely some specified or limited judicial power, but the
judicial power under our political system, and, accordingly, the entirety or all of said power,
except, only, so much as the Constitution confers upon some other agency, such as the
power to judge all contests relating to the election, returns and qualifications of members of
the Senate and those of the House of Representatives, which is vested by the fundamental
law solely in the Senate Electoral Tribunal and the House Electoral Tribunal, respectively.
Judicial power is the authority to settle justiciable controversies or disputes involving rights
that are enforceable and demandable before the courts of justice or the redress of wrongs for
violations of such rights. The proper exercise of said authority requires legislative action: (1)
defining such enforceable and demandable rights and/or prescribing remedies for violations
thereof; and (2) determining the court with jurisdiction to hear and decide said controversies
or disputes, in the first instance and/or on appeal. For this reason, the Constitution ordains
that Congress shall have the power to define, prescribe, and apportion the jurisdiction of the
various courts, subject to the limitations set forth in the fundamental law.
The SC ruled that the PET is not in conflict with the constitution. RA 1793 merely added the
courts jurisdiction and such can be validly legislated by Congress. It merely conferred upon
the SC additional functions i.e., the functions of the PET. This is valid because the
determining of election contests is essentially judicial.

THIRD DIVISION

SPOUSES BERNYL G. R. No. 174350

BALANGAUAN &
KATHERENE BALANGAUAN,
Petitioners, Present:

- versus - YNARES-SANTIAGO, J.,

Chairperson,
THE HONORABLE COURT OF
AUSTRIA-MARTINEZ,
APPEALS, SPECIAL NINETEENTH
(19TH) DIVISION, CEBU CITY & THE TINGA,*
HONGKONG AND SHANGHAI CHICO-NAZARIO, and
BANKING CORPORATION, LTD.,
REYES, JJ.
Respondents.
 Promulgated:

August 13, 2008

x--------------------------------------------------x

DECISION

CHICO-NAZARIO, J.:

Before Us is a Petition for Certiorari under Rule 65 of the Revised Rules of

Court assailing the 28 April 2006 Decision[1] and 29 June 2006 Resolution[2] of the
Court of Appeals in CA-G.R. CEB-SP No. 00068, which annulled and set aside the 6
April 2004[3] and 30 August 2004[4] Resolutions of the Department of Justice (DOJ)
in I.S. No. 02-9230-I, entitled The Hongkong and Shanghai Banking Corporation v.
Katherine Balangauan, et al. The twin resolutions of the DOJ affirmed, in essence,
the Resolution of the Office of the City Prosecutor,[5] Cebu City, which dismissed for
lack of probable cause the criminal complaint for Estafa and/or Qualified Estafa,
filed against petitioner-Spouses Bernyl Balangauan (Bernyl) and Katherene
Balangauan (Katherene) by respondent Hong Kong and Shanghai Banking
Corporation, Ltd. (HSBC).

In this Petition for Certiorari, petitioners Bernyl and Katherene urge this
Court to reverse and set aside the Decision of the Court of Appeals, Special
nineteenth (sic) [19th] division (sic), Cebu City (sic) and accordingly, dismiss the
complaint against the [petitioners Bernyl and Katherene] in view of the absence of
probable cause to warrant the filing of an information before the Court and for
utter lack of merit.[6]

As culled from the records, the antecedents of the present case are as
follows:

Petitioner Katherene was a Premier Customer Services Representative (PCSR)

of respondent bank, HSBC. As a PCSR, she managed the accounts of HSBC
depositors with Premier Status. One such client and/or depositor handled by her
was Roger Dwayne York (York).

York maintained several accounts with respondent HSBC. Sometime in April

2002, he went to respondent HSBCs Cebu Branch to transact with petitioner
Katherene respecting his Dollar and Peso Accounts. Petitioner Katherene being on
vacation at the time, York was attended to by another PCSR. While at the
bank, York inquired about the status of his time deposit in the amount
of P2,500,000.00. The PCSR representative who attended to him, however, could
not find any record of said placement in the banks data base.

York adamantly insisted, though, that through petitioner Katherene, he

made a placement of the aforementioned amount in a higher-earning time
deposit. York further elaborated that petitioner Katherene explained to him that
the alleged higher-earning time deposit scheme was supposedly being offered to
Premier clients only. Upon further scrutiny and examination, respondent HSBCs
bank personnel discovered that: (1) on 18 January 2002, York pre-terminated
a P1,000,000.00 time deposit; (2) there were cash movement tickets and
withdrawal slips all signed by York for the amount of P1,000,000.00; and (3) there
were regular movements in Yorks accounts, i.e., beginning in the month of January
2002, monthly deposits in the amount of P12,500.00 and P8,333.33 were made,
which York denied ever making, but surmised were the regular interest earnings
from the placement of the P2,500,000.00.
 It was likewise discovered that the above-mentioned deposits were
transacted using petitioner Katherenes computer and work station using the code
or personal password CEO8. The significance of code CEO8, according to the bank
personnel of respondent HSBC, is that, [i]t is only Ms. Balangauan who can transact
from [the] computer in the work station CEO-8, as she is provided with a swipe card
which she keeps sole custody of and only she can use, and which she utilizes for
purposes of performing bank transactions from that computer.[7]

Bank personnel of respondent HSBC likewise recounted in their affidavits

that prior to the filing of the complaint for estafa and/or qualified estafa, they were
in contact with petitioners Bernyl and Katherene. Petitioner Bernyl supposedly met
with them on two occasions. At first he disavowed any knowledge regarding the
whereabouts of Yorks money but later on admitted that he knew that his wife
invested the funds with Shell Company. He likewise admitted that he made the
phone banking deposit to credit Yorks account with the P12,500.00 and
the P8,333.33 using their landline telephone. With respect to petitioner Katherene,
she allegedly spoke to the bank personnel and York on several occasions and
admitted that the funds were indeed invested with Shell Company but
that York knew about this.

So as not to ruin its name and goodwill among its clients, respondent HSBC
reimbursed York the P2,500,000.00.

Based on the foregoing factual circumstances, respondent HSBC, through its

personnel, filed a criminal complaint for Estafa and/or Qualified Estafa before the
Office of the City Prosecutor, Cebu City.

Petitioners Bernyl and Katherene submitted their joint counter-affidavit

basically denying the allegations contained in the affidavits of the aforenamed
employees of respondent HSBC as well as that made by York. They argued that the
allegations in the Complaint-Affidavits were pure fabrications. Specifically,
petitioner Katherene denied 1) having spoken on the telephone with Dy and York;
and 2) having admitted to the personnel of respondent HSBC and York that she
took the P2,500,000.00 of York and invested the same with Shell Corporation.
Petitioner Bernyl similarly denied 1) having met with Dy, Iigo, Cortes and Arcuri;
and 2) having admitted to them that York knew about petitioner Katherenes move
of investing the formers money with Shell Corporation.

Respecting the P12,500.00 and P8,333.33 regular monthly deposits to Yorks

account made using the code CEO8, petitioners Bernyl and Katherene, in their
defense, argued that since it was a deposit, it was her duty to accept the funds for
deposit. As regards Yorks time deposit with respondent HSBC, petitioners Bernyl
and Katherene insisted that the funds therein were never entrusted to Katherene
in the latters capacity as PCSR Employee of the former because monies deposited
at any bank would not and will not be entrusted to specific bank employee but to
the bank as a whole.

Following the requisite preliminary investigation, Assistant City Prosecutor

(ACP) Victor C. Laborte, Prosecutor II of the OCP, Cebu City, in
a Resolution[8] dated 21 February 2003, found no probable cause to hold
petitioners Bernyl and Katherene liable to stand trial for the criminal complaint of
estafa and/or qualified estafa, particularly Article 315 of the Revised Penal
Code. Accordingly, the ACP recommended the dismissal of respondent HSBCs
complaint.

The ACP explained his finding, viz:

As in any other cases, we may never know the ultimate truth of this controversy.
But on balance, the evidence on record tend to be supportive of respondents contention
rather than that of complaint.

xxxx
 First of all, it is well to dwell on what Mr. York said in his affidavit. Thus:

`18. For purposes of opening these two time deposits (sic)

accounts, Ms. Balangauan asked me to sign several Bank documents on
several occasions, the nature of which I was unfamiliar with.

`20. I discovered later that these were withdrawal slips and cash
movement tickets, with which documents Ms. Balangauan apparently
was able to withdraw the amount from my accounts, and take the same
from the premises of the Bank.

In determining the credibility of an evidence, it is well to consider the probability

or improbability of ones statements for it has been said that there is no test of the truth
of human testimony except its conformity to our knowledge, observation and experience.

Mr. York could not have been that unwary and unknowingly innocent to claim
unfamiliarity with withdrawal slips and cash movement tickets which Ms. Balangauan
made him to sign on several occasions. He is a premier client of HSBC maintaining an
account in millions of pesos. A withdrawal slip and cash movement tickets could not have
had such intricate wordings or terminology so as to render them non-understandable
even to an ordinary account holder. Mr. York admittedly is a long-standing client of the
bank. Within the period of long-standing he certainly must have effected some
withdrawals. It goes without saying therefore that the occasions that Ms. Balangauan
caused him to sign withdrawal slips are not his first encounter with such kinds of
documents.

The one ineluctable conclusion therefore that can be drawn from the premises is
that Mr. York freely and knowingly knew what was going on with his money, who has in
possession of them and where it was invested. These take out the elements of deceit,
fraud, abuse of confidence and without the owners consent in the crimes charged.

The other leg on which complainants cause of action stands rest on its claim for
sum of money against respondents allegedly after it reimbursed Mr. York for his missing
account supposedly taken/withdrawn by Ms. Balangauan. The banks action against
respondents would be a civil suit against them which apparently it already did after the
bank steps into the shoes of Mr. York and becomes the creditor of Ms. Balangauan.[9]
 The ACP then concluded that:

By and large, the evidence on record do (sic) not engender enough bases to
establish a probable cause against respondents.[10]

On 1 July 2003, respondent HSBC appealed the above-quoted resolution and

foregoing comment to the Secretary of the DOJ by means of a Petition for Review.

In a Resolution dated 6 April 2004, the Chief State Prosecutor, Jovencito R.

Zuo, for the Secretary of the DOJ, dismissed the petition. In denying respondent
HSBCs recourse, the Chief State Prosecutor held that:

Sec. 12 (c) of Department Circular No. 70 dated July 2, 2000 provides that the
Secretary of Justice may, motu proprio, dismiss outright the petition if there is no showing
of any reversible error in the questioned resolution.

We carefully examined the petition and its attachments and found no reversible
error that would justify a reversal of the assailed resolution which is in accord with the
law and evidence on the matter.

Respondent HSBCs Motion for Reconsideration was likewise denied with

finality by the DOJ in a lengthier Resolution dated 30 August 2004.

The DOJ justified its ruling in this wise:

 A perusal of the motion reveals no new matter or argument which was not taken
into consideration in our review of the case. Hence, we find no cogent reason to
reconsider our resolution. Appellant failed to present any iota of evidence directly
showing that respondent Katherene Balangauan took the money and invested it
somewhere else. All it tried to establish was that Katherene unlawfully took the money
and fraudulently invested it somewhere else x x x, because after the withdrawals were
made, the money never reached Roger York as appellant adopted hook, line and sinker
the latters declaration, despite Yorks signatures on the withdrawal slips covering the total
amount of P2,500,000.00 x x x. While appellant has every reason to suspect Katherene
for the loss of the P2,500,000.00 as per Yorks bank statements, the cash deposits were
identified by the numerals CEO8 and it was only Katherene who could transact from the
computer in the work station CEO-8, plus alleged photographs showing Katherene leaving
her office at 5:28 p.m. with a bulky plastic bag presumably containing cash since
a portion of the funds was withdrawn, we do not, however, dwell on possibilities,
suspicion and speculation. We rule based on hard facts and solid evidence.

Moreover, an examination of the petition for review reveals that appellant failed
to append thereto all annexes to respondents urgent manifestations x x x together
with supplemental affidavits of Melanie de Ocampo and Rex B. Balucan x x x, which are
pertinent documents required under Section 5 of Department Circular No. 70 dated July
3, 2000.[11]

Respondent HSBC then went to the Court of Appeals by means of a Petition

for Certiorari under Rule 65 of the Revised Rules of Court.

On 28 April 2006, the Court of Appeals promulgated its Decision granting

respondent HSBCs petition, thereby annulling and setting aside the twin
resolutions of the DOJ.

The fallo of the assailed decision reads:

WHEREFORE, in view of the foregoing premises, judgment is hereby

rendered by us GRANTING the petition filed in this case. The assailed Resolutions
dated April 6, 2004 and August 30, 2004 are ANNULLED and SET ASIDE.
 The City Prosecutor of Cebu City is hereby ORDERED to file the
appropriate Information against the private respondents.[12]

Petitioners Bernyl and Katherenes motion for reconsideration proved futile,

as it was denied by the appellate court in a Resolution dated 29 June 2006.

Hence, this petition for certiorari filed under Rule 65 of the Revised Rules of
Court.

Petitioners Bernyl and Katherene filed the present petition on the argument
that the Court of Appeals committed grave abuse of discretion in reversing and
setting aside the resolutions of the DOJ when: (1) [i]t reversed the resolution of the
Secretary of Justice, Manila dated August 30, 2004 and correspondingly, gave due
course to the Petition for Certiorari filed by HSBC on April 28, 2006 despite want of
probable cause to warrant the filing of an information against the herein
petitioners[13]; (2) [i]t appreciated the dubious evidence adduced by HSBC albeit the
absence of legal standing or personality of the latter[14]; (3) [i]t denied the motions
for reconsideration on June 29, 2006 notwithstanding the glaring evidence proving
the innocence of the petitioners[15]; (4) [i]t rebuffed the evidence of the herein
petitioners in spite of the fact that, examining such evidence alone would establish
that the money in question was already withdrawn by Mr. Roger Dwayne York[16];
and (5) [i]t failed to dismiss outright the petition by HSBC considering that the
required affidavit of service was not made part or attached in the said petition
pursuant to Section 13, Rule 13 in relation to Section 3, Rule 46, and Section 2, Rule
56 of the Rules of Court.[17]

Required to comment on the petition, respondent HSBC remarked that the

filing of the present petition is improper and should be dismissed. It argued that
the correct remedy is an appeal by certiorari under Rule 45 of the Revised Rules of
Court.

Petitioners Bernyl and Katherene, on the other hand, asserted in

their Reply[18] that the petition filed under Rule 65 was rightfully filed considering
that not only questions of law were raised but questions of fact and error of
jurisdiction as well. They insist that the Court of Appeals clearly usurped into the
jurisdiction and authority of the Public Prosecutor/Secretary of justice (sic) x x x.[19]

Given the foregoing arguments, there is need to address, first, the issue of
the mode of appeal resorted to by petitioners Bernyl and Katherene. The present
petition is one for certiorari under Rule 65 of the Revised Rules of Court. Notice
that what is being assailed in this recourse is the decision and resolution of the
Court of Appeals dated 28 April 2006 and 29 June 2006, respectively. The Revised
Rules of Court, particularly Rule 45 thereof, specifically provides that an appeal
by certiorari from the judgments or final orders or resolutions of the appellate
court is by verified petition for review on certiorari.[20]

In the present case, there is no question that the 28 April 2006 Decision and
29 June 2006 Resolution of the Court of Appeals granting the respondent HSBCs
petition in CA-G.R. CEB. SP No. 00068 is already a disposition on the
merits. Therefore, both decision and resolution, issued by the Court of Appeals, are
in the nature of a final disposition of the case set before it, and which, under Rule
45, are appealable to this Court via a Petition for Review on Certiorari, viz:

SECTION 1. Filing of petition with Supreme Court. A party desiring to appeal

by certiorari from a judgment or final order or resolution of the Court of Appeals, the
Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may
file with the Supreme Court a verified petition for review on certiorari. The petition shall
raise only questions of law which must be distinctly set forth. (Emphasis supplied.)

It is elementary in remedial law that a writ of certiorari will not issue where
the remedy of appeal is available to an aggrieved party. A remedy is considered
"plain, speedy and adequate" if it will promptly relieve the petitioners from the
injurious effects of the judgment and the acts of the lower court or agency. [21] In
this case, appeal was not only available but also a speedy and adequate
remedy.[22] And while it is true that in accordance with the liberal spirit pervading
the Rules of Court and in the interest of substantial justice,[23] this Court has,
before,[24] treated a petition for certiorari as a petition for review on certiorari,
particularly if the petition for certiorari was filed within the reglementary period
within which to file a petition for review on certiorari;[25] this exception is not
applicable to the present factual milieu.

Pursuant to Sec. 2, Rule 45 of the Revised Rules of Court:

SEC. 2. Time for filing; extension. The petition shall be filed within fifteen (15) days
from notice of the judgment or final order or resolution appealed from, or of the denial
of the petitioners motion for new trial or reconsideration filed in due time after notice of
the judgment. x x x.

a party litigant wishing to file a petition for review on certiorari must do so within
15 days from receipt of the judgment, final order or resolution sought to be
appealed. In this case, petitioners Bernyl and Katherenes motion for
reconsideration of the appellate courts Resolution was denied by the Court of
Appeals in its Resolution dated 29 June 2006, a copy of which was received by
petitioners on 4 July 2006. The present petition was filed on 1 September 2006;
thus, at the time of the filing of said petition, 59 days had elapsed, way beyond the
15-day period within which to file a petition for review under Rule 45, and even
beyond an extended period of 30 days, the maximum period for extension allowed
by the rules had petitioners sought to move for such extra time. As the facts stand,
petitioners Bernyl and Katherene had lost the right to appeal via Rule 45.

Be that as it may, alternatively, if the decision of the appellate court is

attended by grave abuse of discretion amounting to lack or excess of jurisdiction,
then such ruling is fatally defective on jurisdictional ground and may be questioned
even after the lapse of the period of appeal under Rule 45[26] but still within the
period for filing a petition for certiorari under Rule 65.
 We have previously ruled that grave abuse of discretion may arise when a
lower court or tribunal violates and contravenes the Constitution, the law or
existing jurisprudence. By grave abuse of discretion is meant such capricious and
whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of
discretion must be grave, as where the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility and must be so patent
and gross as to amount to an evasion of positive duty or to a virtual refusal to
perform the duty enjoined by or to act at all in contemplation of law. [27] The word
capricious, usually used in tandem with the term arbitrary, conveys the notion of
willful and unreasoning action. Thus, when seeking the corrective hand
of certiorari, a clear showing of caprice and arbitrariness in the exercise of
discretion is imperative.[28]

In reversing and setting aside the resolutions of the DOJ, petitioners Bernyl
and Katherene contend that the Court of Appeals acted with grave abuse of
discretion amounting to lack or excess of jurisdiction.

The Court of Appeals, when it resolved to grant the petition in CA-G.R. CEB.
SP No. 00068, did so on two grounds, i.e., 1) that the public respondent (DOJ)
gravely abused his discretion in finding that there was no reversible error on the
part of the Cebu City Prosecutor dismissing the case against the private respondent
without stating the facts and the law upon which this conclusion was made[29]; and
2) that the public respondent (DOJ) made reference to the facts and circumstances
of the case leading to his finding that no probable cause exists, x x x (the) very facts
and circumstances (which) show that there exists a probable cause to believe that
indeed the private respondents committed the crimes x x x charged against
them.[30]

It explained that:

In refusing to file the appropriate information against the private respondents

because he does not dwell on possibilities, suspicion and speculation and that he rules
based on hard facts and solid evidence, (sic) the public respondent exceeded his authority
 and gravely abused his discretion. It must be remembered that a finding of probable cause
does not require an inquiry into whether there is sufficient evidence to procure a
conviction. It is enough that it is believed that the act or omission complained of
constitutes the offense charged. The term does not mean actual or positive cause; (sic)
nor does it import absolute certainty. It is merely based on opinion and reasonable belief.
[Citation omitted.] A trial is there precisely for the reception of evidence of the
prosecution in support of the charge.

In this case, the petitioner had amply established that it has a prima facie case
against the private respondents. As observed by the public respondent in his second
assailed resolution, petitioner was able to present photographs of private respondent Ms.
Balangauan leaving her office carrying a bulky plastic bag. There was also the fact that the
transactions in Mr. Yorks account used the code CEO8 which presumably point to the
private respondent Ms. Balangauan as the author thereof for she is the one assigned to
such work station.

Furthermore, petitioner was able to establish that it was Ms. Balangauan who
handled Mr. Yorks account and she was the one authorized to make the placement of the
sum of P2,500,000.00. Since said sum is nowhere to be found in the records of the bank,
then, apparently, Ms. Balangauan must be made to account for the same.[31]

The appellate court then concluded that:

These facts engender a well-founded belief that that (sic) a crime has been
committed and that the private respondents are probably guilty thereof. In refusing to
file the corresponding information against the private respondents despite the presence
of the circumstances making out a prima facie case against them, the public respondent
gravely abused his discretion amounting to an evasion of a positive duty or to a virtual
refusal either to perform the duty enjoined or to act at all in contemplation of law.[32]

The Court of Appeals found fault in the DOJs failure to identify and discuss
the issues raised by the respondent HSBC in its Petition for Review filed therewith.
And, in support thereof, respondent HSBC maintains that it is incorrect to argue
that it was not necessary for the Secretary of Justice to have his resolution recite
the facts and the law on which it was based, because courts and quasi-judicial
bodies should faithfully comply with Section 14, Article VIII of the Constitution
requiring that decisions rendered by them should state clearly and distinctly the
facts of the case and the law on which the decision is based.[33]

Petitioners Bernyl and Katherene, joined by the Office of the Solicitor

General, on the other hand, defends the DOJ and assert that the questioned
resolution was complete in that it stated the legal basis for denying respondent
HSBCs petition for review that (after) an examination (of) the petition and its
attachment [it] found no reversible error that would justify a reversal of the
assailed resolution which is in accord with the law and evidence on the matter.

It must be remembered that a preliminary investigation is not a quasi-judicial

proceeding, and that the DOJ is not a quasi-judicial agency exercising a quasi-
judicial function when it reviews the findings of a public prosecutor regarding the
presence of probable cause. In Bautista v. Court of Appeals,[34] this Court held that
a preliminary investigation is not a quasi-judicial proceeding, thus:

[T]he prosecutor in a preliminary investigation does not determine the guilt or innocence
of the accused. He does not exercise adjudication nor rule-making functions. Preliminary
investigation is merely inquisitorial, and is often the only means of discovering the
persons who may be reasonably charged with a crime and to enable the fiscal to prepare
his complaint or information. It is not a trial of the case on the merits and has no purpose
except that of determining whether a crime has been committed and whether there is
probable cause to believe that the accused is guilty thereof. While the fiscal makes that
determination, he cannot be said to be acting as a quasi-court, for it is the courts,
ultimately, that pass judgment on the accused, not the fiscal.

Though some cases[35] describe the public prosecutors power to conduct a

preliminary investigation as quasi-judicial in nature, this is true only to the extent
that, like quasi-judicial bodies, the prosecutor is an officer of the executive
department exercising powers akin to those of a court, and the similarity ends at
this point.[36] A quasi-judicial body is an organ of government other than a court
and other than a legislature which affects the rights of private parties through
either adjudication or rule-making.[37] A quasi-judicial agency performs
adjudicatory functions such that its awards, determine the rights of parties, and
their decisions have the same effect as judgments of a court. Such is not the case
when a public prosecutor conducts a preliminary investigation to determine
probable cause to file an Information against a person charged with a criminal
offense, or when the Secretary of Justice is reviewing the formers order or
resolutions. In this case, since the DOJ is not a quasi-judicial body, Section 14,
Article VIII of the Constitution finds no application. Be that as it may, the DOJ
rectified the shortness of its first resolution by issuing a lengthier one when it
resolved respondent HSBCs motion for reconsideration.

Anent the substantial merit of the case, whether or not the Court of Appeals
decision and resolution are tainted with grave abuse of discretion in finding
probable cause, this Court finds the petition dismissible.

The Court of Appeals cannot be said to have acted with grave abuse of
discretion amounting to lack or excess of jurisdiction in reversing and setting aside
the resolutions of the DOJ. In the resolutions of the DOJ, it affirmed the
recommendation of ACP Laborte that no probable cause existed to warrant the
filing in court of an Information for estafa and/or qualified estafa against
petitioners Bernyl and Katherene. It was the reasoning of the DOJ that [w]hile
appellant has every reason to suspect Katherene for the loss of the P2,500,000.00
as per Yorks bank statements, the cash deposits were identified by the numerals
CEO8 and it was only Katherene who could transact from the computer in the work
station CEO-8, plus alleged photographs showing Katherene leaving her office at
5:28 p.m. with a bulky plastic bag presumably containing cash since a portion of the
funds was withdrawn, we do not, however, dwell on possibilities, suspicion and
speculation. We rule based on hard facts and solid evidence.[38]

We do not agree.
 Probable cause has been defined as the existence of such facts and
circumstances as would excite belief in a reasonable mind, acting on the facts
within the knowledge of the prosecutor, that the person charged was guilty of the
crime for which he was prosecuted.[39] A finding of probable cause merely binds
over the suspect to stand trial. It is not a pronouncement of guilt.[40]

The executive department of the government is accountable for the

prosecution of crimes, its principal obligation being the faithful execution of the
laws of the land. A necessary component of the power to execute the laws is the
right to prosecute their violators,[41] the responsibility for which is thrust upon the
DOJ. Hence, the determination of whether or not probable cause exists to warrant
the prosecution in court of an accused is consigned and entrusted to the DOJ. And
by the nature of his office, a public prosecutor is under no compulsion to file a
particular criminal information where he is not convinced that he has evidence to
prop up the averments thereof, or that the evidence at hand points to a different
conclusion.

But this is not to discount the possibility of the commission of abuses on the
part of the prosecutor. It is entirely possible that the investigating prosecutor has
erroneously exercised the discretion lodged in him by law. This, however, does not
render his act amenable to correction and annulment by the extraordinary remedy
of certiorari, absent any showing of grave abuse of discretion amounting to excess
of jurisdiction.[42]

And while it is this Courts general policy not to interfere in the conduct of
preliminary investigations, leaving the investigating officers sufficient discretion to
determine probable cause,[43] we have nonetheless made some exceptions to the
general rule, such as when the acts of the officer are without or in excess of
authority,[44] resulting from a grave abuse of discretion. Although there is no
general formula or fixed rule for the determination of probable cause, since the
same must be decided in the light of the conditions obtaining in given situations
and its existence depends to a large degree upon the finding or opinion of the judge
conducting the examination, such a finding should not disregard the facts before
the judge (public prosecutor) or run counter to the clear dictates of reason.[45]

Applying the foregoing disquisition to the present petition, the reasons of

DOJ for affirming the dismissal of the criminal complaints for estafa and/or
qualified estafa are determinative of whether or not it committed grave abuse of
discretion amounting to lack or excess of jurisdiction. In requiring hard facts and
solid evidence as the basis for a finding of probable cause to hold petitioners Bernyl
and Katherene liable to stand trial for the crime complained of, the DOJ disregards
the definition of probable cause that it is a reasonable ground of presumption that
a matter is, or may be, well-founded, such a state of facts in the mind of the
prosecutor as would lead a person of ordinary caution and prudence to believe, or
entertain an honest or strong suspicion, that a thing is so.[46] The term does not
mean actual and positive cause nor does it import absolute certainty.[47] It is merely
based on opinion and reasonable belief;[48] that is, the belief that the act or
omission complained of constitutes the offense charged. While probable cause
demands more than bare suspicion, it requires less than evidence which would
justify conviction. Herein, the DOJ reasoned as if no evidence was actually
presented by respondent HSBC when in fact the records of the case were teeming;
or it discounted the value of such substantiation when in fact the evidence
presented was adequate to excite in a reasonable mind the probability that
petitioners Bernyl and Katherene committed the crime/s complained of. In so
doing, the DOJ whimsically and capriciously exercised its discretion, amounting to
grave abuse of discretion, which rendered its resolutions amenable to correction
and annulment by the extraordinary remedy of certiorari.

From the records of the case, it is clear that a prima facie case for
estafa/qualified estafa exists against petitioners Bernyl and Katherene. A perusal
of the records, i.e., the affidavits of respondent HSBCs witnesses, the documentary
evidence presented, as well as the analysis of the factual milieu of the case, leads
this Court to agree with the Court of Appeals that, taken together, they are enough
to excite the belief, in a reasonable mind, that the Spouses Bernyl Balangauan and
Katherene Balangauan are guilty of the crime complained of. Whether or not they
will be convicted by a trial court based on the same evidence is not a
consideration. It is enough that acts or omissions complained of by respondent
HSBC constitute the crime of estafa and/or qualified estafa.

Collectively, the photographs of petitioner Katherene leaving the premises

of respondent HSBC carrying a bulky plastic bag and the affidavits of respondent
HSBCs witnesses sufficiently establish acts adequate to constitute the crime of
estafa and/or qualified estafa. What the affidavits bear out are the following:
that York was a Premier Client of respondent HSBC; that petitioner Katherene
handled all the accounts of York; that not one of Yorks accounts reflect
the P2,500,000.00 allegedly deposited in a higher yielding account; that prior to the
discovery of her alleged acts and omissions, petitioner Katherene supposedly
persuaded York to invest in a new product of respondent HSBC, i.e., a higher
interest yielding time deposit; that York made a total of P2,500,000.00 investment
in the new product by authorizing petitioner Balangauan to transfer said funds to
it; that petitioner Katherene supposedly asked York to sign several transaction
documents in order to transfer the funds to the new product; that said documents
turned out to be withdrawal slips and cash movement tickets; that at no time did
York receive the cash as a result of signing the documents that turned out to be
withdrawal slips/cash movement tickets; that Yorks account was regularly credited
loose change in the amounts of P12,500.00 and P8,333.33 beginning in the month
after the alleged transfer of Yorks funds to the new product; that the regular
deposits of loose change were transacted with the use of petitioner Katherenes
work terminal accessed by her password CEO8; that the CEO8 password was keyed
in with the use of a swipe card always in the possession of petitioner Katherene;
that one of the loose-change deposits was transacted via the phone banking
feature of respondent HSBC and that when traced, the phone number used was
the landline number of the house of petitioners Bernyl and Katherene; that
respondent HSBCs bank personnel, as well as York, supposedly a) talked with
petitioner Katherene on the phone, and that she allegedly admitted that the
missing funds were invested with Shell Company, of which York approved, and that
it was only for one year; and b) met with petitioner Bernyl, and that the latter at
first denied having knowledge of his wifes complicity, but later on admitted that he
knew of the investment with Shell Company, and that he supposedly made the
loose-change deposit via phone banking; that after 23 April 2002, York was told
that respondent HSBC had no new product or that it was promoting investment
with Shell Company; that York denied having any knowledge that his money was
invested outside of respondent HSBC; and that petitioner Katherene would not
have been able to facilitate the alleged acts or omissions without taking advantage
of her position or office, as a consequence of which, HSBC had to reimburse York
the missing P2,500,000.00.

From the above, the alleged circumstances of the case at bar make up the
elements of abuse of confidence, deceit or fraudulent means, and damage under
Art. 315 of the Revised Penal Code on estafa and/or qualified estafa. They give rise
to the presumption or reasonable belief that the offense of estafa has been
committed; and, thus, the filing of an Information against petitioners Bernyl and
Katherene is warranted. That respondent HSBC is supposed to have no personality
to file any criminal complaint against petitioners Bernyl and Katherene does
not ipso facto clear them of prima facie guilt. The same goes for their basic denial
of the acts or omissions complained of; or their attempt at shifting the doubt to the
person of York; and their claim that witnesses of respondent HSBC are guilty of
fabricating the whole scenario. These are matters of defense; their validity needs
to be tested in the crucible of a full-blown trial. Lest it be forgotten, the presence
or absence of the elements of the crime is evidentiary in nature and is a matter of
defense, the truth of which can best be passed upon after a full-blown trial on the
merits. Litigation will prove petitioners Bernyl and Katherenes innocence if their
defense be true.

In fine, the relaxation of procedural rules may be allowed only when there
are exceptional circumstances to justify the same. Try as we might, this Court
cannot find grave abuse of discretion on the part of the Court of Appeals, when it
reversed and set aside the resolutions of the DOJ. There is no showing that the
appellate court acted in an arbitrary and despotic manner, so patent or gross as to
amount to an evasion or unilateral refusal to perform its legally mandated duty. On
the contrary, we find the assailed decision and resolution of the Court of Appeals
to be more in accordance with the evidence on record and relevant laws and
jurisprudence than the resolutions of the DOJ.
 Considering the allegations, issues and arguments adduced and our
disquisition above, we hereby dismiss the instant petition for being the wrong
remedy under the Revised Rules of Court, as well as for petitioner Bernyl and
Katherenes failure to sufficiently show that the
challenged Decision and Resolution of the Court of Appeals were rendered in grave
abuse of discretion amounting to lack or excess of jurisdiction.

WHEREFORE, premises considered, the instant Petition

for Certiorari is DISMISSED for lack of merit. The 28 April 2006 Decision and the 29
June 2006 Resolution of the Court of Appeals in CA-G.R. CEB- SP No. 00068, are
hereby AFFIRMED. With costs against petitioners -- Spouses Bernyl Balangauan
and Katherene Balangauan.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
 Chairperson

MA. ALICIA AUSTRIA-MARTINEZ DANTE O. TINGA

Associate Justice Associate Justice

RUBEN T. REYES
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
 CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons attestation, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was assigned to the writer
of the opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice
G.R. Nos. 195011-19

DEL CASTILLO, J.:

The grant or denial of a Demurrer to Evidence is left to the sound discretion
of the court, and its ruling on the matter shall not be disturbed in the
absence of a grave abuse of such discretion.

This Petition for Certiorari Ad Cautelam[1] seeks to set aside the August 5,
2010 Resolution[2] of the Sandiganbayan in Criminal Case Nos. 26297-
26305, denying petitioner Gregorio Singian, Jr.'s Demurrer to
Evidence[3] and the November 18,2010 Resolution[4] denying
reconsideration thereof.

Antecedents

The criminal cases involved in the present Petition have been the subject of
a previous disposition of the Court, specifically Singian, Jr.
v.Sandiganbayan.[5] In said case, the Court made the following recital of
facts:

Atty. Orlando L. Salvador was Presidential Commission On Good

Government Consultant on detail with the Presidential Ad HocCommittee
on Behest Loans (Committee). He was also the coordinator of the Technical
Working Group composed of officers and employees of government
financing institutions to examine and study the reports and
recommendations of the Asset Privatization Trust relating to loan accounts
in all government financing institutions. Among the accounts acted upon by
the Committee were the loans granted to Integrated Shoe, Inc. (ISI) by the
Philippine National Bank (PNB).

It would appear that on 18 January 1972, ISI applied for a five-year

confirmed irrevocable deferred letter of credit amounting to
US$2,500,000.00 (P16,287,500.00) to finance its purchase of a complete
line of machinery and equipment. The letter of credit was recommended to
the PNB Board of Directors by then Senior Vice[-]President, Mr.
Constantino Bautista.

On 27 January 1972, the PNB approved the loan, subject to certain

stipulations. The said letter of credit was to be secured by the following
collaterals: a) a second mortgage on [a] 10,367-square meter lot under
Transfer Certificate of Title No. 218999 with improvements, machinery and
equipment; b) machinery and equipment to be imported under the subject
letter of credit; and c) assignment of US$0.50 per pair of shoes of ISI's
export sales. It was further subjected to the following pertinent conditions:
a) that the letter of credit be subject to joint and several signatures of Mr.
Francisco J. Teodoro, Mrs. Leticia T. Teodoro, Marfina T. Singian, Tomas
Teodoro, and Gregorio Singian, Jr.; b) that ISI, which has a paid-up capital
amounting to P1,098,750.00 as of January 1972, shall increase its
authorized capital to P5,000,000.00, and in the event that cash receipts do
not come up to the projections, or as may be required by the bank, ISI will
further increase its capitalization and the present stockholders will
subscribe to their present holdings; and c) that ISI shall submit other
collaterals in case the appraised value of the new machinery and equipment
be insufficient.

ISI was further extended the following subsequent loan accommodations:

1. P1,500,000.00 on 10 February 1972 for the purchase of raw materials;

2. P1,000,000.00 on 18 January 1973 as export advance;

3. P1,500,000.00 on 21 March 1973 as export advance;

4. P600,000.00 on 06 March 1974 as credit line;

5. P2,500,000.00 renewed on 15 December 1976;

6. P5,000,000.00 on 19 November 1978 as export advance;

7. P1,500,000.00 on 04 August 1980 as export advance; and

8. P7,000,000.00 on 15 December 1980 also as an export advance.

The Committee found that the loans extended to ISI bore characteristics of
behest loans specifically for not having been secured with sufficient
collaterals and obtained with undue haste.

As a result, Atty. Orlando Salvador filed with the Office of the Ombudsman
a sworn complaint dated 20 March 1996, for violation of Section 3,
paragraphs (e) and (g), of Republic Act No. 3019, as amended, against the
following: Panfilo Domingo, former PNB President, Constantino Bautista,
former PNB Senior Vice[-]President, Domingo Ingco, former member of
the PNB Board of Directors, John Does, former members of the PNB Board
of Directors, Francisco Teodoro, President of ISI, Leticia Teodoro, Vice[-
]President of ISI, Marfina Singian, Incorporator of ISI, Tomas Teodoro,
General Manager of ISI, and Gregorio Singian, Jr., Executive Vice[-
]President of ISI. The complaint, docketed as OMB-0-96-0967, was
assigned to Graft Investigation Officer I Atty. Edgar R. Navales
(Investigator Navales) of the Evaluation and Preliminary Investigation
Bureau (EPIB) for investigation.

xxxx

Hence, the corresponding eighteen (18) Informations against petitioner and

his co-accused for violation of Section 3(e) and (g) of Rep. Act No. 3019,
docketed as Criminal Cases No. 26297 to No. 26314, were filed before
the Sandiganbayan and were raffled to the Third Division thereof. The
eighteen (18) Informations correspond to the nine (9) loan
accommodations granted to ISI, each loan being the subject of two
informations alleging violations of both paragraphs of Section 3 of Rep. Act
No. 3019.[6]
Thus, herein petitioner was charged with nine counts of violation of Section
3(e),[7] and another nine counts of violation of Section 3(g),[8] of Republic
Act No. 3019 (RA 3019), or the Anti-Graft and Corrupt Practices Act.
Docketed as Criminal Case Nos. 26297-26314, the cases involved the
purported granting of behest loans by the government's Philippine National
Bank (PNB) to Integrated Shoes, Inc. (ISI), in various amounts and on
different dates as above-enumerated.

The Informations[9] covering Section 3(e) charged that Panfilo Domingo

(Domingo), then PNB Director/President/Vice-President (Europe);
Domingo C. Ingco (Ingco), then PNB Director; and Constantino Bautista
(Bautista), then PNB Senior Executive Vice-President, while in the
performance of their official functions and taking advantage of their official
positions, conspired with private individuals, specifically officers of ISI,
including petitioner, who was ISI's Executive Vice-President, in willfully,
unlawfully and criminally causing undue injury to the government and
giving unwarranted benefits, advantage and preference to ISI by
accommodating and granting several loans and advances to the latter,
despite knowing that it lacked sufficient capitalization, or failed to give
adequate collateral or raise its working capital to secure the government's
interest in case it failed to pay said loans, as in fact it failed to pay these
loans.

On the other hand, the Informations[10] covering Section 3(g) charged the
above individuals, including petitioner, with conspiring, confederating, and
willfully, unlawfully and criminally entering into the above-mentioned loan
transactions which are grossly and manifestly disadvantageous to the
government, for lack of sufficient capitalization or adequate collateral, and
for failure of ISI to raise its working capital to secure the government's
interest in case it failed to pay said loans, which indeed ISI failed to pay.

On January 27, 2004, petitioner entered a plea of not guilty on all counts.
All the other accused were arraigned as well, except for Bautista, who
passed away prior to his scheduled arraignment.

On April 29, 2005, the Sandiganbayan dismissed Criminal Case Nos.

26306-26314.[11] On October 6, 2007, the accused Ingco passed away; as a
result, the cases against him were dismissed as well. Accused Domingo
likewise passed away on June 26, 2008 resulting in an October 29, 2008
Resolution wherein the Sandiganbayan dropped the cases against him.

Trial with respect to the remaining cases ensued. For its testimonial
evidence, the prosecution called to the stand nine witnesses:

1. Director Danilo R.V. Daniel, then Coordinator of the Technical Working

Group on Behest Loans (TWG) and Director of the Research Division of the
Presidential Commission on Good Government (PCGG), who testified on
the investigation conducted by the TWG of the ISI account and on various
documents relative thereto, including the Fourteenth (14th) Report of
Presidential Ad Hoc Fact-Finding Committee on Behest Loans[12] (Ad
Hoc Committee) dated July 15, 1993 which he drafted, and which
characterized the ISI account as a behest loan;[13]

2. Atty. Reginald Bacolor from the Legal Department, Privatization

Management Office of the Asset Privatization Trust (APT), who testified on
the deeds, documents and titles covering the foreclosed properties offered
as collaterals in the ISI account and thereafter sold by the government
through the APT;[14]
3. Atty. Edwin Flor V. Barroga, then Deputy Registrar of Deeds of
Binangonan, Rizal, who testified on the property offered as collateral by ISI,
which was the subject of a prior encumbrance to the Government Service
Insurance System (GSIS);[15]

4. Atty. Cinderella Benitez, Securities Counsel II of the Securities and

Exchange Commission (SEC), who testified on ISI's SEC documents,
specifically its capitalization and financial status. She identified certified
copies of ISI's Articles of Incorporation, By-Laws, Amended Articles of
Incorporation, Certificates of Increase of Capital Stock, etc.;[16]

5. Atty. Mary Ann B. Morales, SEC Securities Counsel III from its
Registration and Monitoring Department, who likewise testified on ISI's
SEC documents. She identified ISI's General Information Sheets, Schedule
of Stockholders, Subscribed and Paid-Up Capital, Certificate of Corporate
Filing/ Information, etc. She testified, among others, that as of 1973, ISI's
subscribed capital stock was only P1.6 million, while its paid-up capital was
merely P1,298,750.00;[17]

6. Cesar Luis Pargas, of the Privatization Management Office, APT,

custodian of ISI's loan documents, who testified on and brought with him
the loan documents, deeds, titles, notes, etc. covering the ISI account;[18]

7. Claro Bernardino, Senior Manager of PNB's Human Resource Group,

who brought the personnel records/certificates of employment of the
accused Domingo and Ingco;[19]

8. Ramonchito Bustamante, Manager of the Loans and Implementing

Services Division of PNB, expert witness on banking policy and PNB's loan
policies, as well as ISI's loan data; and[20]

9. Stephen Tanchuling, Chief Administrative Officer of the Records Division

of the Research Department of the PCGG, custodian of documents turned
over to PCGG by the Ad Hoc Committee. He testified that his function was
to authenticate documents in his custody, which consisted of records
transmitted to the Ad Hoc Committee by different government agencies. He
identified as well the Executive Summary[21] of the ISI account; the
Fourteenth (14th) Report of Presidential Ad Hoc Fact-Finding Committee
on Behest Loans dated July 15, 1993; the Executive Summary of the Ad
Hoc Committee Findings; and other relevant documents.[22]

For its documentary evidence, the prosecution presented the following,

among others:

1) Photocopy of the Fourteenth (14th) Report of Presidential Ad Hoc Fact-

Finding Committee on Behest Loans[23] which listed ISI as among the
corporations with loans obtained from the government or government
banks (in this case, PNB) which were found to possess the characteristics of
a behest loan;

2) Photocopy of an Executive Summary of Findings of the Ad

Hoc Committee,[24] detailing the particulars of the ISI account;

3) Photocopy of the certified true copy of the January 10, 1972

Memorandum[25] from Bautista to the PNB Board of Directors, detailing
Bautista's findings and recommendations regarding ISI's application for a
$2.5 million (P16,287,500.00) letter of credit for the purpose of purchasing
machinery and equipment for a new shoe factory then being built in
Bataan.

4) Certified photocopy of a Deed of Undertaking and Conformity to Bank

Conditions[26] (Deed of Undertaking) dated March 24, 1972 executed by ISI
in favor of PNB;

5) Certified photocopy of a Deed of Assignment[27] dated March 24, 1972,

assigning $0.50 per pair of shoes of all export sales of ISI in favor of PNB;

6) Certified photocopy of Chattel Mortgage with Power of

Attorney[28] executed by ISI in favor of PNB;

7) Certified true copy of Certificate of Filing of Certificate of Increase of

Capital Stock[29] issued by the SEC dated February 6, 1974, showing that ISI
increased its authorized capital stock from P3 million to P7 million; and

8) Certified true copy of the By-Laws of Integrated Pacific, Inc. (ISI's

predecessor corporation).[30]

After the presentation of its testimonial and documentary evidence, the

prosecution rested its case and filed its Formal Offer of Exhibits.[31] The
respondent court admitted in toto the State's documentary exhibits.

Petitioner's Demurrer to Evidence

On February 17, 2010, petitioner, with prior leave, filed a Demurrer to

Evidence[32] anchored on the following grounds: (1) lack of proof of
conspiracy with any PNB official; (2) the contracts with PNB contained
provisions that are beneficial, and not manifestly and grossly
disadvantageous, to the government; (3) the loans could not be
characterized as behest loans because they were secured by sufficient
collaterals and ISI increased its capitalization; and (4) assuming the loans
are behest loans, petitioner could not be held liable for lack of any
participation.[33]

In particular, petitioner claimed that the prosecution failed to adduce

evidence of conspiracy to defraud the government because his co-accused
from PNB had no power to approve the alleged behest loans; that if a theory
of conspiracy were to be pursued, then all the members of the PNB's Board
of Directors at the time the loans and credit accommodations to ISI were
approved, and not only Domingo and Ingco, should have been impleaded as
they were the ones who directed PNB's affairs; that the prosecution failed to
show that he exercised any kind of influence over PNB's Board of Directors
in order to ensure the grant of the loans and accommodations applied for;
and for failure to present evidence that the accused colluded with each
other in entering into the loan agreements and accommodations.

Petitioner contended further that the contracts and agreements entered

into by and between PNB and ISI were standard contracts used by PNB in
its dealings with its clients; that the terms thereof were couched in words
and fashioned in a manner that favored the bank; that the agreements
guaranteed repayment of the loan and the putting up of sufficient collateral,
and provided for interest and penalties in the event of breach, and thus
were not grossly and manifestly disadvantageous to the government.

Next, petitioner argued that the subject loans were not undercollateralized;
that ISI was not undercapitalized as the corresponding increase in its
authorized capital stock and paid-up capital was timely made; and that the
loans could not have been characterized as behest loans considering the
following stipulations: a) the assets intended for acquisition through the
letter of credit would serve as the collateral therefor; b) the officers and
majority stockholders of ISI were made jointly and severally liable for its
obligations; c) ISI may not declare dividends while the loans are subsisting;
d) PNB is given the right to designate its Comptroller in ISI; and e) even if it
is assumed for the sake of argument that the subject loans were
undercollateralized, this fact standing alone does not make for a behest
loan, as the presence of at least two (2) criteria out of the eight enumerated
in Presidential Memorandum Order No. 61 dated November 9, 1992 is
required to characterize the loans as behest loans.

Assuming that the loan agreements are behest loans, petitioner claimed
that he may not be held liable because his indictment was based solely on
the Deed of Undertaking which was altered such that his name was stricken
out and instead the name "Gregorio T. Teodoro" was inserted; that the
accountee-mortgagor-assignor under said deed was ISI; that the obligations
were assumed by ISI; that ISI had already fully complied with all its
obligations under the deed; and that he was not a member of ISI's Board of
Directors, which alone was tasked as ISI's governing body with the
observance of the obligations set forth under the deed; nor may he seek to
compel action thereon at a stockholders' meeting, as he is not a shareholder
of ISI either.

Finally, petitioner claimed that the Ad Hoc Committee documents

specifically the Executive Summary and Fourteenth (14th) Report of
Presidential Ad Hoc Fact-Finding Committee on Behest Loans are
inadmissible for not being photocopies of the originals, but mere copies of
photocopies in the custody of the PCGG; and that they were prepared and
issued by individuals who have no personal knowledge of the facts and
circumstances which transpired during the proceedings adverted to.

Petitioner thus prayed that as against him, Criminal Case Nos. 26297-
26305 be dismissed for insufficiency of evidence.

Prosecution's Opposition

In its Opposition,[34] the prosecution insisted that conspiracy may be

inferred from the following pattern of events:
 a. The frequency of the loans or closeness of the dates at which they
were granted;

b. The quantity of the loans granted;

c. The failure of [PNB] to verify and to take any action on [ISI's failure]
to put up additional capitalization and additional collaterals; and

d. The eventual absence of any action by [PNB] to collect full payment

from ISI.[35]

The prosecution noted that without ISI putting up additional capitalization

or collateral, PNB kept granting loans to it, such that in 1973, its
indebtedness already rose to P16,360,000.00 while its capital stock stood
at only P7 million; that petitioner is intimately connected with the
incorporators and officers of ISI Leticia Teodoro is his mother-in-law, while
Francisco Teodoro is his father-in-law; and Marfina Teodoro-Singian is his
wife; that as of 1983, ISI's debt to PNB amounted to P71,847,217.00, as a
result of the undercapitalized and undercollateralized loans extended to it;
and that as signatory to the Deed of Undertaking, petitioner assumed the
obligations of a surety.

Finally, the prosecution noted that petitioner's arguments in his Demurrer

to Evidence constitute matters of defense which should be passed upon
only after trial on the merits.

Ruling of the Sandiganbayan

On August 5, 2010, the Sandiganbayan issued the first assailed Resolution,

which decreed as follows:

WHEREFORE, considering all the foregoing, this Court DENIES the

Demurrer to Evidence filed by accused Gregorio Singian, Jr. as the evidence
for the prosecution sufficiently established the essential elements of the
offense charged and overcame the presumption of innocence in favor of
said accused.

SO ORDERED.[36]
Petitioner's Motion for Reconsideration[37] having been denied on
November 18, 2010 by the respondent court, he filed the present Petition
for Certiorari.

Issues

Petitioner raises the following issues:

THE RESPONDENT SANDIGANBAYAN ACTED WITH GRAVE ABUSE

OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT ISSUED THE ASSAILED [RESOLUTIONS] X X
X CONSIDERING THAT:

I.

THE FIRST ELEMENT OF SECTION 3(G) OF R.A. 3019 IS NOT PRESENT

BECAUSE THE EXISTENCE OF CONSPIRACY IS NEGATED BY THE
FACT THAT THE PUBLIC OFFICERS WHO WERE RESPONSIBLE FOR
GRANTING THE LOANS IN QUESTION WERE NEVER CHARGED,
ACCUSED OR INCLUDED IN THE INFORMATIONS SUBJECT OF
THESE CASES.

II.

EVEN IF IT IS PRESUMED, PURELY IN GRATIA ARGUMENTIS, THAT A

CONSPIRACY ATTENDED THE GRANT OF THE QUESTIONED LOANS
TO ISI, THERE IS, NEVERTHELESS, NO OVERT ACT ATTRIBUTABLE
TO THE PETITIONER THAT EVEN REMOTELY JUSTIFIES HIS
INCLUSION IN THE PROSECUTION'S CONSPIRACY DRAGNET.

III.

THE PROSECUTION'S EXHIBITS "C" (ALSO MARKED AS EXHIBIT

"RR") AND "QQ" WHICH THE PROSECUTION FOISTED TO MAKE IT
APPEAR THAT THE CREDIT ACCOMMODATIONS SUBJECT OF THE
CRIMINAL CASES BELOW ARE BEHEST LOANS, DO NOT HAVE ANY
PROBATIVE VALUE AND ARE COMPLETELY INADMISSIBLE BECAUSE
THEY ARE UNDISPUTABLY AND BLATANTLY HEARSAY.[38]
Petitioner's Arguments

Essentially, petitioner reiterates all his arguments in his Demurrer to

Evidence and Motion for Reconsideration of the respondent court's denial
thereof. He emphasizes, however, that he had nothing to do with the
application and grant of the questioned loans, since he was never a member
of ISI's Board of Directors which, under the law and ISI by-laws, had the
sole power and authority to approve and obtain loans and give collaterals to
secure the same; nor is he a stockholder of ISI. Nor has it been shown from
the testimonial and documentary evidence that as Executive Vice-
President, he participated in ISI's loan and credit transactions, or that he
actively participated in the commission of the crimes of which he is
charged. Without such proof, petitioner believes that he may not be charged
with conspiracy.

Petitioner adds that no evidence was presented as well to show that he had
any participation in PNB's failure to verify and take action against ISI to
compel it to put up additional capital and collaterals, or that he was
responsible for PNB's failure to collect or secure full payment of the ISI
credit.

Finally, petitioner justifies his resort to certiorari on the argument that the
collective acts of the prosecution and the respondent court constitute a
denial of his constitutional right to due process, which gives ground for the
availment of the extraordinary remedy.[39]

Respondents' Arguments

In its Comment,[40] the prosecution asserts that the respondent court did
not commit grave abuse of discretion in denying the Demurrer to Evidence
arguing that in petitioner's case, all the elements under Section 3(g) exist to
hold petitioner liable. It adds that petitioner was part of the conspiracy to
defraud the government, as evidenced by his participation and signature in
the Deed of Undertaking, the terms of which ISI violated and PNB failed to
enforce.

On the other hand, the PCGG in its Comment[41] adopts the arguments of
the prosecution and asserts that the respondent court arrived at its
conclusion after careful examination of the record and the evidence, which
justify a finding sustaining petitioner's indictment. It adds that all the
elements of the crime under Section 3(g) have been proved, which thus
justifies a denial of petitioner's Demurrer to Evidence.

Our Ruling

The Court dismisses the Petition.

Demurrer to evidence

"A demurrer to the evidence is an objection by one of the parties in an

action, to the effect that the evidence which his adversary produced is
insufficient in point of law, whether true or not, to make out a case or
sustain the issue. The party demurring challenges the sufficiency of the
whole evidence to sustain a verdict. The court, in passing upon the
sufficiency of the evidence raised in a demurrer, is merely required to
ascertain whether there is competent or sufficient evidence to sustain the
indictment or to support a verdict of guilt."[42]

"Sufficient evidence for purposes of frustrating a demurrer thereto is such

evidence in character, weight or amount as will legally justify the judicial or
official action demanded according to the circumstances. To be considered
sufficient therefore, the evidence must prove: (a) the commission of the
crime, and (b) the precise degree of participation therein by the
accused."[43]

Elements of Section 3(g), RA 3019

For one to be successfully prosecuted under Section 3(g) of RA 3019, the

following elements must be proven: "1) the accused is a public officer; 2)
the public officer entered into a contract or transaction on behalf of the
government; and 3) the contract or transaction was grossly and manifestly
disadvantageous to the government."[44] However, private persons may
likewise be charged with violation of Section 3(g) of RA 3019 if they
conspired with the public officer. Thus, "if there is an allegation of
conspiracy, a private person may be held liable together with the public
officer, in consonance with the avowed policy of the Anti-Graft and Corrupt
Practices Act which is 'to repress certain acts of public officers and private
persons alike which may constitute graft or corrupt practices or which may
lead thereto.'"[45]
The Sandiganbayan found competent or sufficient evidence to sustain
the indictment or to support a verdict of guilt for violation of Section 3(g),
RA 3019

The Sandiganbayan found that the prosecution presented sufficient or

competent evidence to establish the three material elements of Section 3(g)
of RA 3019. First, although petitioner is a private person, he was shown to
have connived with his co-accused. Second, ISI and PNB entered into
several loan transactions and credit accommodations. Finally, the loan
transactions proved disadvantageous to the government.

There is no grave abuse of discretion on the part of

the Sandiganbayan in denying petitioner's Demurrer to Evidence

At the outset, we emphasize that "[t]he resolution of a demurrer to evidence

should be left to the exercise of sound judicial discretion. A lower court's
order of denial shall not be disturbed, that is, the appellate courts will not
review the prosecution's evidence and precipitately decide whether such
evidence has established the guilt of the accused beyond a reasonable
doubt, unless accused has established that such judicial discretion has been
gravely abused, thereby amounting to a lack or excess of jurisdiction. Mere
allegations of such abuse will not suffice."[46]

"Grave abuse of discretion is the capricious and whimsical exercise of

judgment on the part of the public officer concerned which is equivalent to
an excess or lack of jurisdiction. The abuse of discretion must be so patent
and gross as to amount to an evasion of a 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 or hostility."[47]

In this case, petitioner miserably failed to present an iota of evidence to

show that the Sandiganbayan abused, much more, gravely abused, its
discretion in denying petitioner's Demurrer to Evidence. We agree with the
PCGG's observation that the Sandiganbayanarrived at its conclusion after
a careful and deliberate examination and assessment of all the evidence
submitted. A closer scrutiny of the assailed Resolutions would indeed show
that the Sandiganbayan meticulously discussed both testimonial and
documentary evidence presented by the prosecution.[48] It was only after a
careful analysis of the facts and evidence presented did the respondent
court lay down its findings and conclusions.[49]

Based on the evidence presented, the Sandiganbayan was convinced that

all three elements of Section 3(g), RA 3019 were satisfactorily established.
It found that PNB and ISI entered into several contracts or loan
transactions. The Sandiganbayan also assessed that petitioner conspired
with his co-accused in defrauding the government considering "(1) the
frequency of the loans or closeness of the dates at which they were granted;
(2) the quantity of the loans granted; (3) the failure of the bank to verify
and to take any action on the failure of ISI to put up additional
capitalization and additional collaterals; and (4) the eventual absence of
any action by the Bank to collect full payment from
ISI."[50] The Sandiganbayan ratiocinated that

x x x the loans subject of this case refer to not just one but several loans.
The first two loans were granted in a span of two months x x x The first loan
was in the amount of P16,287,500.00 when the capital stock of ISI
amounted to only P1,000,000.00. This was followed by two additional
loans [in] January and March 1973 x x x then another loan x x x in the
following year x x x. Two years later x x x ISI obtained another loan x x x
which was succeeded by an additional loan x x x. Still, ISI was granted two
more loans x x x.

xxxx

However, all loans subject of this case were granted despite failure of ISI to
raise its working capital, and to put up additional collateral. The Certificate
of Filing of Amended Articles of Incorporation and the Amended Articles of
Incorporation likewise show that ISI last increased its authorized capital
stock to P7,000,000.00 on April 27, 1973, when the indebtedness of the
corporation was already P16,360,000.00. Indeed, it would appear that
inaction on the part of the PNB to notify ISI to further increase its capital
and the corresponding inaction on the part of ISI to comply with its
undertaking indicate conspiracy between the accused.

Accused-movant further negates his liability by asserting that his name

does not appear in the Deed of Undertaking, and neither has he signed the
same. A cursory examination of the Deed, however, reveals otherwise. It
also bears stressing at this point that as he has never denied his position as
Executive Vice[-] President of ISI, he would undeniably have participation
in its transactions, especially where loan accommodations of the
corporation are concerned.[51]
The Sandiganbayan also found that the loan transactions were grossly and
manifestly disadvantageous to the government. Based on the documentary
evidence presented by the prosecution, it noted that ISI was
undercapitalized while the loans were undercollateralized. It also noted that
the government was only able to foreclose properties amounting to P3
million whereas ISI's indebtedness stood at more than P71 million.

Based on the foregoing, we find no showing that "the conclusions made by

the [Sandiganbayan] on the sufficiency of the evidence of the prosecution
at the time the prosecution rested its case, [were] manifestly
mistaken."[52] The Sandiganbayan did not exercise its judgment in a
whimsical or capricious manner. As we aptly held:

Given the sufficiency of the testimonial and documentary evidence against

petitioner, it would, therefore, be premature at this stage of the proceedings
to conclude that the prosecution's evidence failed to establish petitioner's
participation in the alleged conspiracy to commit the crime. Likewise, the
Court cannot, at this point, make a categorical pronouncement that the
guilt of the petitioner has not been proven beyond reasonable doubt. As
there is competent and sufficient evidence to sustain the indictment for the
crime charged, it behooves petitioner to adduce evidence on his behalf to
controvert the asseverations of the prosecution. Withal, respondent court
did not gravely abuse its discretion when it found that there was a prima
facie case against petitioner warranting his having to go forward with his
defensive evidence.

The determination of the sufficiency or insufficiency of the evidence

presented by the prosecution as to establish a prima facie case against an
accused is left to the exercise of sound judicial discretion. Unless there is a
clear showing of a grave abuse of discretion amounting to lack or excess of
jurisdiction, the trial court's denial of a motion to dismiss or a demurrer to
evidence may not be disturbed.[53]
Similarly, we have also ruled that:

When there is no showing of such grave abuse, certiorari is not the proper
remedy. Rather, the appropriate recourse from an order denying a
demurrer to evidence is for the court to proceed with the trial, after which
the accused may file an appeal from the judgment of the lower court
rendered after such trial. In the present case, we are not prepared to rule
that the Sandiganbayan has gravely abused its discretion when it denied
petitioner's demurrer to evidence. Public respondent found that the
prosecution's evidence satisfactorily established the elements of the crime
charged. Correspondingly, there is nothing in the records of this case nor in
the pleadings of petitioner that would show otherwise.[54]
At this juncture, it is worth mentioning that the issues raised herein are
almost the same as those raised by petitioner before the Court when he
questioned the Sandiganbayan's denial of his Motion for Re-determination
of Existence of Probable Cause.[55] In resolving petitioner's contention that
he should not be made liable for ISI's failure to put up additional
capitalization and collaterals because he is not a member of the Board of
Directors, the Court declared that:

True, the power to increase capitalization and to offer or give collateral to

secure indebtedness are lodged with the corporation's [B]oard of
[D]irectors. However, this does not mean that the officers of the
corporation other than the [B]oard of [D]irectors cannot be made
criminally liable for their criminal acts if it can be proven that they
participated therein. In the instant case, there is evidence that petitioners
participated in the loan transactions when he signed the undertaking. x x
x[56]
Anent the issue regarding the sufficiency of ISI's collateral, we also declared
the same to be "a matter of defense which should be best ventilated in a
full-blown trial."[57] Moreover, we declared that

Fifth. It is petitioner's view that the prosecution failed to adduce evidence

that he took part in any conspiracy relative to the grant of the loan
transactions. Suffice it to state that the alleged absence of any conspiracy
among the accused is evidentiary in nature and is a matter of defense, the
.truth of which can be best passed upon after a full-blown trial on the
merits.[58]
In fine, we hold that "the presence or absence of the elements of the crime
is evidentiary in nature and is a matter of defense that may be passed upon
after a full-blown trial on the merits," and "the validity and merits of a
party's defense or accusation, as well as admissibility of testimonies and
evidence, are better ventilated during trial proper."[59] Petitioner's claims
and defenses in his Demurrer to Evidence can best be tackled during trial.
In the presentation of his defense, he shall have the opportunity to explain
or show why he should not be made liable. For example, if there is any truth
to the allegation in his Demurrer of Evidence that the Deed of Undertaking
was altered, or that the signature therein affixed is not his own, such that
there arise serious doubts as to his participation in the execution of said
document, this can be resolved only upon proof presented during triaL
Petitioner must present evidence regarding such claim, the truth of which
he can demonstrate during trial. Since this Court is not a trier of facts, there
is no way that this issue can be resolved by this Court at this stage of the
proceedings.

In light of the foregoing, the Court finds that the respondent court did not
commit grave abuse of discretion in denying petitioner's Demurrer to
Evidence; it was done in the proper exercise of its jurisdiction.

WHEREFORE, the Petition is DISMISSED.

SO ORDERED.

Brion, (Acting Chairperson), Abad,* Perez, and Perlas-Bernabe, JJ.,

concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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

THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI BANKING
CORPORATION,petitioners,
vs.
JOSE O. VERA, Judge . of the Court of First Instance of Manila, and MARIANO CU
UNJIENG, respondents.

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

LAUREL, J.:

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

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

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

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

On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of probation to the
herein respondent Mariano Cu Unjieng. The private prosecution also filed an opposition on April 5,
1937, alleging, among other things, that Act No. 4221, assuming that it has not been repealed by
section 2 of Article XV of the Constitution, is nevertheless violative of section 1, subsection (1),
Article III of the Constitution guaranteeing equal protection of the laws for the reason that its
applicability is not uniform throughout the Islands and because section 11 of the said Act endows the
provincial boards with the power to make said law effective or otherwise in their respective or
otherwise in their respective provinces. The private prosecution also filed a supplementary
opposition on April 19, 1937, elaborating on the alleged unconstitutionality on Act No. 4221, as an
undue delegation of legislative power to the provincial boards of several provinces (sec. 1, Art. VI,
Constitution). The City Fiscal concurred in the opposition of the private prosecution except with
respect to the questions raised concerning the constitutionality of Act No. 4221.

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

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

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

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

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

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

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 of certiorari with mandamus, it appearing that the trial court, although it believed
that the accused was entitled to probation, nevertheless denied probation for fear of
criticism because the accused is a rich man; and that, before a petition
for certiorari grounded on an irregular exercise of jurisdiction by the trial court could
lie, it is incumbent upon the petitioner to file a motion for reconsideration specifying
the error committed so that the trial court could have an opportunity to correct or cure
the same.

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

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

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

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

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

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

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

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

The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction
and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a
jurisdiction with which it is not legally vested. (High, Extraordinary Legal Remedies, p. 705.) The
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 Attorney-General of Kansas to test the constitutionality of a statute of the state. In
disposing of the question whether or not the state may bring the action, the Supreme Court of
Kansas said:
 . . . the state is a proper party indeed, the proper party to bring this action. The state is
always interested where the integrity of its Constitution or statutes is involved.

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

Where the constitutionality of a statute is in doubt the state's law officer, its Attorney-General,
or county attorney, may exercise his bet judgment as to what sort of action he will bring to
have the matter determined, either by quo warranto to challenge its validity (State vs.
Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662), by mandamus to compel obedience
to its terms (State vs. Dolley, 82 Kan., 533; 108 Pac., 846), or by injunction to restrain
proceedings under its questionable provisions (State ex rel. vs. City of Neodesha, 3 Kan.
App., 319; 45 Pac., 122).

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

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

It is the duty of a district attorney to enforce the criminal laws of the state, and, above all, to
support the Constitution of the state. If, in the performance of his duty he finds two statutes in
conflict with each other, or one which repeals another, and if, in his judgment, one of the two
statutes is unconstitutional, it is his duty to enforce the other; and, in order to do so, he is
compelled to submit to the court, by way of a plea, that one of the statutes is
unconstitutional. If it were not so, the power of the Legislature would be free from
constitutional limitations in the enactment of criminal laws.
The respondents do not seem to doubt seriously the correctness of the general proposition that the
state may impugn the validity of its laws. They have not cited any authority running clearly in the
opposite direction. In fact, they appear to have proceeded on the assumption that the rule as stated
is sound but that it has no application in the present case, nor may it be invoked by the City Fiscal in
behalf of the People of the Philippines, one of the petitioners herein, the principal reasons being that
the validity before this court, that the City Fiscal is estopped from attacking the validity of the Act
and, not authorized challenge the validity of the Act in its application outside said city. (Additional
memorandum of respondents, October 23, 1937, pp. 8,. 10, 17 and 23.)

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

It remains to consider whether the determination of the constitutionality of Act No. 4221 is necessary
to the resolution of the instant case. For, ". . . while the court will meet the question with firmness,
where its decision is indispensable, it is the part of wisdom, and just respect for the legislature,
renders it proper, to waive it, if the case in which it arises, can be decided on other points." (Ex
parte Randolph [1833], 20 F. Cas. No. 11, 558; 2 Brock., 447. Vide, also Hoover vs. wood [1857], 9
Ind., 286, 287.) It has been held that the determination of a constitutional question is necessary
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 by other authorities. In Ex parte Bates ([1915], 20 N. M., 542;
L.R.A. 1916A, 1285; 151 Pac., 698, the court said: "It is clearly within the province of the Legislature
to denominate and define all classes of crime, and to prescribe for each a minimum and maximum
punishment." And in State vs. Abbott ([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann.
Cas. 1912B, 1189), the court said: "The legislative power to set punishment for crime is very broad,
and in the exercise of this power the general assembly may confer on trial judges, if it sees fit, the
largest discretion as to the sentence to be imposed, as to the beginning and end of the punishment
and whether it should be certain or indeterminate or conditional." (Quoted in State vs. Teal [1918],
108 S. C., 455; 95 S. E., 69.) Indeed, the Philippine Legislature has defined all crimes and fixed the
penalties for their violation. Invariably, the legislature has demonstrated the desire to vest in the
courts particularly the trial courts large discretion in imposing the penalties which the law
prescribes in particular cases. It is believed that justice can best be served by vesting this power in
the courts, they being in a position to best determine the penalties which an individual convict,
peculiarly circumstanced, should suffer. Thus, while courts are not allowed to refrain from imposing a
sentence merely because, taking into consideration the degree of malice and the injury caused by
the offense, the penalty provided by law is clearly excessive, the courts being allowed in such case
to submit to the Chief Executive, through the Department of Justice, such statement as it may deem
proper (see art. 5, Revised Penal Code), in cases where both mitigating and aggravating
circumstances are attendant in the commission of a crime and the law provides for a penalty
composed of two indivisible penalties, the courts may allow such circumstances to offset one
another in consideration of their number and importance, and to apply the penalty according to the
result of such compensation. (Art. 63, rule 4, Revised Penal Code; U.S. vs. Reguera and Asuategui
[1921], 41 Phil., 506.) Again, article 64, paragraph 7, of the Revised Penal Code empowers the
courts to determine, within the limits of each periods, in case the penalty prescribed by law contains
three periods, the extent of the evil produced by the crime. In the imposition of fines, the courts are
allowed to fix any amount within the limits established by law, considering not only the mitigating and
aggravating circumstances, but more particularly the wealth or means of the culprit. (Art. 66, Revised
Penal Code.) Article 68, paragraph 1, of the same Code provides that "a discretionary penalty shall
be imposed" upon a person under fifteen but over nine years of age, who has not acted without
discernment, but always lower by two degrees at least than that prescribed by law for the crime
which he has committed. Article 69 of the same Code provides that in case of "incomplete self-
defense", i.e., when the crime committed is not wholly excusable by reason of the lack of some of
the conditions required to justify the same or to exempt from criminal liability in the several cases
mentioned in article 11 and 12 of the Code, "the courts shall impose the penalty in the period which
may be deemed proper, in view of the number and nature of the conditions of exemption present or
lacking." And, in case the commission of what are known as "impossible" crimes, "the court, having
in mind the social danger and the degree of criminality shown by the offender," shall impose upon
him either arresto mayor or a fine ranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.)

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

But the desire of the legislature to relax what might result in the undue harshness of the penal laws
is more clearly demonstrated in various other enactments, including the probation Act. There is the
Indeterminate Sentence Law enacted in 1933 as Act No. 4103 and subsequently amended by Act
No. 4225, establishing a system of parole (secs. 5 to 100 and granting the courts large discretion in
imposing the penalties of the law. Section 1 of the law as amended provides; "hereafter, in imposing
a prison sentence for an offenses punished by the Revised Penal Code, or its amendments, the
court shall sentence the accused to an indeterminate sentence the maximum term of which shall be
that which, in view of the attending circumstances, could be properly imposed under the rules of the
said Code, and to a minimum which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense; and if the offense is punished by any other law, the court
shall sentence the accused to an indeterminate sentence, the maximum term of which shall not
exceed the maximum fixed by said law and the minimum shall not be less than the minimum term
prescribed by the same." Certain classes of convicts are, by section 2 of the law, excluded from the
operation thereof. The Legislature has also enacted the Juvenile Delinquency Law (Act No. 3203)
which was subsequently amended by Act No. 3559. Section 7 of the original Act and section 1 of the
amendatory Act have become article 80 of the Revised Penal Code, amended by Act No. 4117 of
the Philippine Legislature and recently reamended by Commonwealth Act No. 99 of the National
Assembly. In this Act is again manifested the intention of the legislature to "humanize" the penal
laws. It allows, in effect, the modification in particular cases of the penalties prescribed by law by
permitting the suspension of the execution of the judgment in the discretion of the trial court, after
due hearing and after investigation of the particular circumstances of the offenses, the criminal
record, if any, of the convict, and his social history. The Legislature has in reality decreed that in
certain cases no punishment at all shall be suffered by the convict as long as the conditions of
probation are faithfully observed. It this be so, then, it cannot be said that the Probation Act comes in
conflict with the power of the Chief Executive to grant pardons and reprieves, because, to use the
language of the Supreme Court of New Mexico, "the element of punishment or the penalty for the
commission of a wrong, while to be declared by the courts as a judicial function under and within the
limits of law as announced by legislative acts, concerns solely the procedure and conduct of criminal
causes, with which the executive can have nothing to do." (Ex parteBates, supra.) In Williams vs.
State ([1926], 162 Ga., 327; 133 S.E., 843), the court upheld the constitutionality of the Georgia
probation statute against the contention that it attempted to delegate to the courts the pardoning
power lodged by the constitution in the governor alone is vested with the power to pardon after final
sentence has been imposed by the courts, the power of the courts to imposed any penalty which
may be from time to time prescribed by law and in such manner as may be defined cannot be
questioned."

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

Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F. [2d], 590; Archer vs.
Snook [1926; D. C.], 10 F. [2d], 567; Riggs. vs. United States [1926; C. C. A. 4th], 14]) [2d], 5;
Murphy vs. States [1926], 171 Ark., 620; 286 S. W., 871; 48 A. L. R., 1189; Re Giannini [1912], 18
Cal. App., 166; 122 Pac., 831; Re Nachnaber [1928], 89 Cal. App., 530; 265 Pac., 392; Ex parte De
Voe [1931], 114 Cal. App., 730; 300 Pac., 874; People vs. Patrick [1897], 118 Cal., 332; 50 Pac.,
425; Martin vs. People [1917], 69 Colo., 60; 168 Pac., 1171; Belden vs. Hugo [1914], 88 Conn., 50;
91 A., 369, 370, 371; Williams vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs. Heise
[1913], 257 Ill., 443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R.
A., 859; St. Hillarie, Petitioner [1906], 101 Me., 522; 64 Atl., 882; People vs. Stickle [1909], 156
Mich., 557; 121 N. W., 497; State vs. Fjolander [1914], 125 Minn., 529; State ex rel. Bottomnly vs.
District Court [1925], 73 Mont., 541; 237 Pac., 525; State vs. Everitt [1913], 164 N. C., 399; 79 S. E.,
274; 47 L. R. A. [N. S.], 848; State ex rel. Buckley vs. Drew [1909], 75 N. H., 402; 74 Atl., 875; State
vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl. 424; Ex parte Bates [1915], 20 N. M., 542; L. R. A.,
1916 A. 1285; 151 Pac., 698; People vs. ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288;
23 L. R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep., 675; People ex rel. Sullivan vs. Flynn [1907], 55
Misc., 639; 106 N. Y. Supp., 928; People vs. Goodrich [1914], 149 N. Y. Supp., 406; Moore vs.
Thorn [1935], 245 App. Div., 180; 281 N. Y. Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A., 1915C,
1169; 149 N. W., 568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P., 781; State vs. Teal
[1918], 108 S. C., 455; 95 S. E., 69; State vs. Abbot [1910], 87 S. C., 466; 33 L.R.A., [N. S.], 112; 70
S. E., 6; Ann. Cas., 1912B, 1189; Fults vs. States [1854],34 Tenn., 232; Woods vs. State [1814], 130
Tenn., 100; 169 S. W., 558; Baker vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State
[1913],70 Tex., Crim. Rep., 618; 158 S. W., 998; Cook vs. State [1914], 73 Tex. Crim. Rep., 548;
165 S. W., 573; King vs. State [1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State
[1932], 122 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 211;
54 S. W. [2d], 127; Re Hall [1927], 100 Vt., 197; 136 A., 24; Richardson vs. Com. [1921], 131 Va.,
802; 109 S.E., 460; State vs. Mallahan [1911], 65 Wash., 287; 118 Pac., 42; State ex rel. Tingstand
vs. Starwich [1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393; 396.) We elect to follow this
long catena of authorities holding that the courts may be legally authorized by the legislature to
suspend sentence by the establishment of a system of probation however characterized. State ex
rel. Tingstand vs. Starwich ([1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved
particular mention. In that case, a statute enacted in 1921 which provided for the suspension of the
execution of a sentence until otherwise ordered by the court, and required that the convicted person
be placed under the charge of a parole or peace officer during the term of such suspension, on such
terms as the court may determine, was held constitutional and as not giving the court a power in
violation of the constitutional provision vesting the pardoning power in the chief executive of the
state. (Vide, also, Re Giannini [1912], 18 Cal App., 166; 122 Pac., 831.)

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

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

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

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

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

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

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

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

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

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

We conclude that the Probation Act does not conflict with the pardoning power of the Executive. The
pardoning power, in respect to those serving their probationary sentences, remains as full and
complete as if the Probation Law had never been enacted. The President may yet pardon the
probationer and thus place it beyond the power of the court to order his rearrest and imprisonment.
(Riggs vs. United States [1926],
14 F. [2d], 5, 7.)
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 decidendi is at variance but, it can be broadly
asserted that the rationale revolves around the presence or absence of a standard or rule of action
or the sufficiency thereof in the statute, to aid the delegate in exercising the granted discretion.
In some cases, it is held that the standard is sufficient; in others that is insufficient; and in still others
that it is entirely lacking. As a rule, an act of the legislature is incomplete and hence invalid if it does
not lay down any rule or definite standard by which the administrative officer or board may be guided
in the exercise of the discretionary powers delegated to it. (See Schecter vs. United States [1925],
295 U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837; 97 A.L.R., 947; People ex rel. Rice vs. Wilson
Oil Co. [1936], 364 Ill., 406; 4 N. E. [2d], 847; 107 A.L.R., 1500 and cases cited. See also R. C. L.,
title "Constitutional Law", sec 174.) In the case at bar, what rules are to guide the provincial boards
in the exercise of their discretionary power to determine whether or not the Probation Act shall apply
in their respective provinces? What standards are fixed by the Act? We do not find any and none
has been pointed to us by the respondents. The probation Act does not, by the force of any of its
provisions, fix and impose upon the provincial boards any standard or guide in the exercise of their
discretionary power. What is granted, if we may use the language of Justice Cardozo in the recent
case of Schecter, supra, is a "roving commission" which enables the provincial boards to exercise
arbitrary discretion. By section 11 if the Act, the legislature does not seemingly on its own authority
extend the benefits of the Probation Act to the provinces but in reality leaves the entire matter for the
various provincial boards to determine. In other words, the provincial boards of the various provinces
are to determine for themselves, whether the Probation Law shall apply to their provinces or not at
all. The applicability and application of the Probation Act are entirely placed in the hands of the
provincial boards. If the provincial board does not wish to have the Act applied in its province, all that
it has to do is to decline to appropriate the needed amount for the salary of a probation officer. The
plain language of the Act is not susceptible of any other interpretation. This, to our minds, is a virtual
surrender of legislative power to the provincial boards.

"The true distinction", says Judge Ranney, "is between the delegation of power to make the law,
which necessarily involves a discretion as to what it shall be, and conferring an authority or
discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be
done; to the latter no valid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Clinton County
Comrs. [1852]; 1 Ohio St., 77, 88. See also, Sutherland on Statutory Construction, sec 68.) To the
same effect are the decision of this court in Municipality of Cardona vs. Municipality of
Binangonan ([1917], 36 Phil., 547); Rubi vs. Provincial Board of Mindoro ([1919],39 Phil., 660)
and Cruz vs. Youngberg ([1931], 56 Phil., 234). In the first of these cases, this court sustained the
validity of the law conferring upon the Governor-General authority to adjust provincial and municipal
boundaries. In the second case, this court held it lawful for the legislature to direct non-Christian
inhabitants to take up their habitation on unoccupied lands to be selected by the provincial governor
and approved by the provincial board. In the third case, it was held proper for the legislature to vest
in the Governor-General authority to suspend or not, at his discretion, the prohibition of the
importation of the foreign cattle, such prohibition to be raised "if the conditions of the country make
this advisable or if deceased among foreign cattle has ceased to be a menace to the agriculture and
livestock of the lands."

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

It is connected, however, that a legislative act may be made to the effect as law after it leaves the
hands of the legislature. It is true that laws may be made effective on certain contingencies, as by
proclamation of the executive or the adoption by the people of a particular community (6 R. C. L.,
116, 170-172; Cooley, Constitutional Limitations, 8th ed., Vol. I, p. 227). In Wayman vs. Southard
([1825], 10 Wheat. 1; 6 Law. ed., 253), the Supreme Court of the United State ruled that the
legislature may delegate a power not legislative which it may itself rightfully exercise.(Vide, also,
Dowling vs. Lancashire Ins. Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to
ascertain facts is such a power which may be delegated. There is nothing essentially legislative in
ascertaining the existence of facts or conditions as the basis of the taking into effect of a law. That is
a mental process common to all branches of the government. (Dowling vs. Lancashire Ins.
Co., supra; In re Village of North Milwaukee [1896], 93 Wis., 616; 97 N.W., 1033; 33 L.R.A., 938;
Nash vs. Fries [1906], 129 Wis., 120; 108 N.W., 210; Field vs. Clark [1892], 143 U.S., 649; 12 Sup.
Ct., 495; 36 Law. ed., 294.) Notwithstanding the apparent tendency, however, to relax the rule
prohibiting delegation of legislative authority on account of the complexity arising from social and
economic forces at work in this modern industrial age (Pfiffner, Public Administration [1936] ch. XX;
Laski, "The Mother of Parliaments", foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579; Beard,
"Squirt-Gun Politics", in Harper's Monthly Magazine, July, 1930, Vol. CLXI, pp. 147, 152), the
orthodox pronouncement of Judge Cooley in his work on Constitutional Limitations finds restatement
in Prof. Willoughby's treatise on the Constitution of the United States in the following language
speaking of declaration of legislative power to administrative agencies: "The principle which permits
the legislature to provide that the administrative agent may determine when the circumstances are
such as require the application of a law is defended upon the ground that at the time this authority is
granted, the rule of public policy, which is the essence of the legislative act, is determined by the
legislature. In other words, the legislature, as it its duty to do, determines that, under given
circumstances, certain executive or administrative action is to be taken, and that, under other
circumstances, different of no action at all is to be taken. What is thus left to the administrative
official is not the legislative determination of what public policy demands, but simply the
ascertainment of what the facts of the case require to be done according to the terms of the law by
which he is governed." (Willoughby on the Constitution of the United States, 2nd ed., Vol. II, p.
1637.) In Miller vs. Mayer, etc., of New York [1883], 109 U.S., 3 Sup. Ct. Rep., 228; 27 Law. ed.,
971, 974), it was said: "The efficiency of an Act as a declaration of legislative will must, of course,
come from Congress, but the ascertainment of the contingency upon which the Act shall take effect
may be left to such agencies as it may designate." (See, also, 12 C.J., p. 864; State vs. Parker
[1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343, 258.) The legislature, then may provide
that a contingencies leaving to some other person or body the power to determine when the
specified contingencies has arisen. But, in the case at bar, the legislature has not made the
operation of the Prohibition Act contingent upon specified facts or conditions to be ascertained by
the provincial board. It leaves, as we have already said, the entire operation or non-operation of the
law upon the provincial board. the discretion vested is arbitrary because it is absolute and unlimited.
A provincial board need not investigate conditions or find any fact, or await the happening of any
specified contingency. It is bound by no rule, limited by no principle of expendiency announced by
the legislature. It may take into consideration certain facts or conditions; and, again, it may not. It
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 reformatory institution for adults when so requested by the authorities
thereof, and, when designated by the Secretary of Justice shall act as parole officer of persons
released on parole under Act Number Forty-one Hundred and Three, without additional
compensation."
It is argued, however, that even without section 11 probation officers maybe appointed in the
provinces under section 10 of Act which provides as follows:

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

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

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

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

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

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

People of the Philippines vs Jose

Vera

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

Probation Law
Separation of Powers Undue Delegation of Powers Power to Pardon
Constitutionality of Laws May the State Question Its Own Laws
In 1934, Mariano Cu Unjieng was convicted in a criminal case filed against him by the
Hongkong and Shanghai Banking Corporation (HSBC). In 1936, he filed for probation. The
matter was referred to the Insular Probation Office which recommended the denial of Cu
Unjiengs petition for probation. A hearing was set by Judge Jose Vera concerning the petition
for probation. The Prosecution opposed the petition. Eventually, due to delays in the hearing,
the Prosecution filed a petition for certiorari with the Supreme Court alleging that courts like
the Court of First Instance of Manila (which is presided over by Judge Vera) have no
jurisdiction to place accused like Cu Unjieng under probation because under the law (Act No.
4221 or The Probation Law), probation is only meant to be applied in provinces with probation
officers; that the City of Manila is not a province, and that Manila, even if construed as a
province, has no designated probation officer hence, a Manila court cannot grant probation.
Meanwhile, HSBC also filed its own comment on the matter alleging that Act 4221 is
unconstitutional for it violates the constitutional guarantee on equal protection of the laws.
HSBC averred that the said law makes it the prerogative of provinces whether or nor to apply
the probation law if a province chooses to apply the probation law, then it will appoint a
probation officer, but if it will not, then no probation officer will be appointed hence, that
makes it violative of the equal protection clause.
Further, HSBC averred that the Probation Law is an undue delegation of power because it
gave the option to the provincial board to whether or not to apply the probation law however,
the legislature did not provide guidelines to be followed by the provincial board.
Further still, HSBC averred that the Probation Law is an encroachment of the executives
power to grant pardon. They say that the legislature, by providing for a probation law, had in
effect encroached upon the executives power to grant pardon. (Ironically, the Prosecution
agreed with the issues raised by HSBC ironic because their main stance was the non-
applicability of the probation law only in Manila while recognizing its application in provinces).
For his part, one of the issues raised by Cu Unjieng is that, the Prosecution, representing the
State as well as the People of the Philippines, cannot question the validity of a law, like Act
4221, which the State itself created. Further, Cu Unjieng also castigated the fiscal of Manila
who himself had used the Probation Law in the past without question but is now questioning
the validity of the said law (estoppel).
ISSUE:
1. May the State question its own laws?
2. Is Act 4221 constitutional?
HELD:
1. Yes. There is no law which prohibits the State, or its duly authorized representative, from
questioning the validity of a law. Estoppel will also not lie against the State even if it had been
using an invalid law.
2. No, Act 4221 or the [old] Probation Law is unconstitutional.
Violation of the Equal Protection Clause
The contention of HSBC and the Prosecution is well taken on this note. There is violation of
the equal protection clause. Under Act 4221, provinces were given the option to apply the law
by simply providing for a probation officer. So if a province decides not to install a probation
officer, then the accused within said province will be unduly deprived of the provisions of the
Probation Law.
Undue Delegation of Legislative Power
There is undue delegation of legislative power. Act 4221 provides that it shall only apply to
provinces where the respective provincial boards have provided for a probation officer. But
nowhere in the law did it state as to what standard (sufficient standard test) should provincial
boards follow in determining whether or not to apply the probation law in their province. This
only creates a roving commission which will act arbitrarily according to its whims.
Encroachment of Executive Power
Though Act 4221 is unconstitutional, the Supreme Court recognized the power of Congress
to provide for probation. Probation does not encroach upon the Presidents power to grant
pardon. Probation is not pardon. Probation is within the power of Congress to fix penalties
while pardon is a power of the president to commute penalties.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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

JOSE A. ANGARA, petitioner,

vs.
THE ELECTORAL COMMISSION, PEDRO YNSUA, MIGUEL CASTILLO, and DIONISIO C.
MAYOR,respondents.

Godofredo Reyes for petitioner.

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

LAUREL, J.:

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

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

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

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

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

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

[No. 8]

RESOLUCION CONFIRMANDO LAS ACTAS DE AQUELLOS DIPUTADOS

CONTRA QUIENES NO SE HA PRESENTADO PROTESTA.

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

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

Adoptada, 3 de diciembre, 1935.

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

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

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

antes de este dia.

(7) That on December 20, 1935, the herein petitioner, Jose A. Angara, one of the
respondents in the aforesaid protest, filed before the Electoral Commission a "Motion to
Dismiss the Protest", alleging (a) that Resolution No. 8 of Dismiss the Protest", alleging (a)
that Resolution No. 8 of the National Assembly was adopted in the legitimate exercise of its
constitutional prerogative to prescribe the period during which protests against the election of
its members should be presented; (b) that the aforesaid resolution has for its object, and is
the accepted formula for, the limitation of said period; and (c) that the protest in question was
filed out of the prescribed period;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) That said respondent presented his motion of protest before the Electoral Commission on
December 9, 1935, the last day fixed by paragraph 6 of the rules of the said Electoral
Commission;
 (c) That therefore the Electoral Commission acquired jurisdiction over the protest filed by
said respondent and over the parties thereto, and the resolution of the Electoral Commission
of January 23, 1936, denying petitioner's motion to dismiss said protest was an act within the
jurisdiction of the said commission, and is not reviewable by means of a writ of prohibition;

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

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

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

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

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

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

There was no appearance for the other respondents.

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

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

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

We could perhaps dispose of this case by passing directly upon the merits of the controversy.
However, the question of jurisdiction having been presented, we do not feel justified in evading the
issue. Being a case prim impressionis, it would hardly be consistent with our sense of duty to
overlook the broader aspect of the question and leave it undecided. Neither would we be doing
justice to the industry and vehemence of counsel were we not to pass upon the question of
jurisdiction squarely presented to our consideration.

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

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

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

The Constitution is a definition of the powers of government. Who is to determine the nature, scope
and extent of such powers? The Constitution itself has provided for the instrumentality of the
judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it
does not assert any superiority over the other departments; it does not in reality nullify or invalidate
an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which that instrument secures and guarantees to them.
This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power
of judicial review under the Constitution. Even then, this power of judicial review is limited to actual
cases and controversies to be exercised after full opportunity of argument by the parties, and limited
further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction
could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to
actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of
wisdom, justice or expediency of legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the legislature is presumed to abide by
the Constitution but also because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as expressed through their
representatives in the executive and legislative departments of the governments of the government.

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

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

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

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

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

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

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

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

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

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

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

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

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

xxx xxx xxx

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

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

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

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

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

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

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

Mr. VENTURA. Then it should be eliminated.

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

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

Mr. ROXAS. That is merely for the sake of clarity. In fact the cases of contested elections are
already included in the phrase "the elections, returns and qualifications." This phrase "and
contested elections" was inserted merely for the sake of clarity.
 Mr. CINCO. Under this paragraph, may not the Electoral Commission, at its own instance,
refuse to confirm the elections of the members."

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

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

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

Mr. ROXAS. Willingly.

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

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

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

Mr. ROXAS. By the assembly for misconduct.

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

Mr. ROXAS. Yes, by the Electoral Commission.

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

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

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

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

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

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

In the same session, the first clause of the aforesaid draft reading "The election, returns and
qualifications of the members of the National Assembly and" was eliminated by the Sponsorship
Committee in response to an amendment introduced by Delegates Francisco, Ventura, Vinzons,
Rafols, Lim, Mumar and others. In explaining the difference between the original draft and the draft
as amended, Delegate Roxas speaking for the Sponsorship Committee said:
 xxx xxx xxx

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

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

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

El Sr. PRESIDENTE. Que dice el Comite?

El Sr. ROXAS. Con mucho gusto.

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

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

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

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

xxx xxx xxx

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

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

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

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

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

SEC. 4. There shall be an Electoral Commission composed of three Justices of the Supreme
Court designated by the Chief Justice, and of six Members chosen by the National
Assembly, three of whom shall be nominated by the party having the largest number of
votes, and three by the party having the second largest number of votes therein. The senior
Justice in the Commission shall be its chairman. The Electoral Commission shall be the sole
judge of the election, returns, and qualifications of the Members of the National Assembly.

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

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

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

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

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

155. It was to put an end to the practices thus described, that Mr. Grenville brought in a bill
which met with the approbation of both houses, and received the royal assent on the 12th of
April, 1770. This was the celebrated law since known by the name of the Grenville Act; of
which Mr. Hatsell declares, that it "was one of the nobles works, for the honor of the house of
commons, and the security of the constitution, that was ever devised by any minister or
statesman." It is probable, that the magnitude of the evil, or the apparent success of the
remedy, may have led many of the contemporaries of the measure to the information of a
judgement, which was not acquiesced in by some of the leading statesmen of the day, and
has not been entirely confirmed by subsequent experience. The bill was objected to by Lord
North, Mr. De Grey, afterwards chief justice of the common pleas, Mr. Ellis, Mr. Dyson, who
had been clerk of the house, and Mr. Charles James Fox, chiefly on the ground, that the
introduction of the new system was an essential alteration of the constitution of parliament,
and a total abrogation of one of the most important rights and jurisdictions of the house of
commons.

As early as 1868, the House of Commons in England solved the problem of insuring the non-
partisan settlement of the controverted elections of its members by abdicating its prerogative to two
judges of the King's Bench of the High Court of Justice selected from a rota in accordance with rules
of court made for the purpose. Having proved successful, the practice has become imbedded in
English jurisprudence (Parliamentary Elections Act, 1868 [31 & 32 Vict. c. 125] as amended by
Parliamentary Elections and Corrupt Practices Act. 1879 [42 & 43 Vict. c. 75], s. 2; Corrupt and
Illegal Practices Preventions Act, 1883 [46 & 47 Vict. c. 51;, s. 70; Expiring Laws Continuance Act,
1911 [1 & 2 Geo. 5, c. 22]; Laws of England, vol. XII, p. 408, vol. XXI, p. 787). In the Dominion of
Canada, election contests which were originally heard by the Committee of the House of Commons,
are since 1922 tried in the courts. Likewise, in the Commonwealth of Australia, election contests
which were originally determined by each house, are since 1922 tried in the High Court. In Hungary,
the organic law provides that all protests against the election of members of the Upper House of the
Diet are to be resolved by the Supreme Administrative Court (Law 22 of 1916, chap. 2, art. 37, par.
6). The Constitution of Poland of March 17, 1921 (art. 19) and the Constitution of the Free City of
Danzig of May 13, 1922 (art. 10) vest the authority to decide contested elections to the Diet or
National Assembly in the Supreme Court. For the purpose of deciding legislative contests, the
Constitution of the German Reich of July 1, 1919 (art. 31), the Constitution of the Czechoslovak
Republic of February 29, 1920 (art. 19) and the Constitution of the Grecian Republic of June 2, 1927
(art. 43), all provide for an Electoral Commission.
The creation of an Electoral Commission whose membership is recruited both from the legislature
and the judiciary is by no means unknown in the United States. In the presidential elections of 1876
there was a dispute as to the number of electoral votes received by each of the two opposing
candidates. As the Constitution made no adequate provision for such a contingency, Congress
passed a law on January 29, 1877 (United States Statutes at Large, vol. 19, chap. 37, pp. 227-229),
creating a special Electoral Commission composed of five members elected by the Senate, five
members elected by the House of Representatives, and five justices of the Supreme Court, the fifth
justice to be selected by the four designated in the Act. The decision of the commission was to be
binding unless rejected by the two houses voting separately. Although there is not much of a moral
lesson to be derived from the experience of America in this regard, judging from the observations of
Justice Field, who was a member of that body on the part of the Supreme Court (Countryman, the
Supreme Court of the United States and its Appellate Power under the Constitution [Albany, 1913]
Relentless Partisanship of Electoral Commission, p. 25 et seq.), the experiment has at least
abiding historical interest.

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

From the deliberations of our Constitutional Convention it is evident that the purpose was to transfer
in its totality all the powers previously exercised by the legislature in matters pertaining to contested
elections of its members, to an independent and impartial tribunal. It was not so much the knowledge
and appreciation of contemporary constitutional precedents, however, as the long-felt need of
determining legislative contests devoid of partisan considerations which prompted the people, acting
through their delegates to the Convention, to provide for this body known as the Electoral
Commission. With this end in view, a composite body in which both the majority and minority parties
are equally represented to off-set partisan influence in its deliberations was created, and further
endowed with judicial temper by including in its membership three justices of the Supreme Court.

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

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

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

It is, indeed, possible that, as suggested by counsel for the petitioner, the Electoral Commission may
abuse its regulative authority by admitting protests beyond any reasonable time, to the disturbance
of the tranquillity and peace of mind of the members of the National Assembly. But the possibility of
abuse is not argument against the concession of the power as there is no power that is not
susceptible of abuse. In the second place, if any mistake has been committed in the creation of an
Electoral Commission and in investing it with exclusive jurisdiction in all cases relating to the
election, returns, and qualifications of members of the National Assembly, the remedy is political, not
judicial, and must be sought through the ordinary processes of democracy. All the possible abuses
of the government are not intended to be corrected by the judiciary. We believe, however, that the
people in creating the Electoral Commission reposed as much confidence in this body in the
exclusive determination of the specified cases assigned to it, as they have given to the Supreme
Court in the proper cases entrusted to it for decision. All the agencies of the government were
designed by the Constitution to achieve specific purposes, and each constitutional organ working
within its own particular sphere of discretionary action must be deemed to be animated with the
same zeal and honesty in accomplishing the great ends for which they were created by the
sovereign will. That the actuations of these constitutional agencies might leave much to be desired in
given instances, is inherent in the perfection of human institutions. In the third place, from the fact
that the Electoral Commission may not be interfered with in the exercise of its legitimate power, it
does not follow that its acts, however illegal or unconstitutional, may not be challenge in appropriate
cases over which the courts may exercise jurisdiction.

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

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

Under the practice prevailing both in the English House of Commons and in the Congress of the
United States, confirmation is neither necessary in order to entitle a member-elect to take his seat.
The return of the proper election officers is sufficient, and the member-elect presenting such return
begins to enjoy the privileges of a member from the time that he takes his oath of office (Laws of
England, vol. 12, pp. 331. 332; vol. 21, pp. 694, 695; U. S. C. A., Title 2, secs. 21, 25, 26).
Confirmation is in order only in cases of contested elections where the decision is adverse to the
claims of the protestant. In England, the judges' decision or report in controverted elections is
certified to the Speaker of the House of Commons, and the House, upon being informed of such
certificate or report by the Speaker, is required to enter the same upon the Journals, and to give
such directions for confirming or altering the return, or for the issue of a writ for a new election, or for
carrying into execution the determination as circumstances may require (31 & 32 Vict., c. 125, sec.
13). In the United States, it is believed, the order or decision of the particular house itself is generally
regarded as sufficient, without any actual alternation or amendment of the return (Cushing, Law and
Practice of Legislative Assemblies, 9th ed., sec. 166).

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

Summarizing, we conclude:

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

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

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

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

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

(f ) That the Electoral Commission is the sole judge of all contests relating to the election,
returns and qualifications of members of the National Assembly.
 (g) That under the organic law prevailing before the present Constitution went into effect,
each house of the legislature was respectively the sole judge of the elections, returns, and
qualifications of their elective members.

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

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

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

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

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

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

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

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

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

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

Separate Opinions

ABAD SANTOS, J., concurring:

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

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

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

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

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

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

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

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

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

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

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

In the light of what has been said, the resolution of the National Assembly of December 3, 1935,
could not have the effect of barring the right of the respondent Pedro Ynsua to contest the election of
the petitioner. By the same token, the Electoral Commission was authorized by law to adopt its
resolution of December 9, 1935, which fixed the time with in which written contests must be filed with
the commission.

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

ANGARA VS ELECTORAL COMMISSION

Posted by kaye lee on 3:28 PM
G.R. No. L-45081 July 15 1936

FACTS:

Jose Angara and Pedro Ynsua, Miguel Castillo and Dionisio Mayor were candidates voted for the position of
member of the National Assembly for the 1st district of Tayabas province.

On Oct 17 1935, the provincial board of canvassers proclaimed Angara as member-elect of the Nat'l Assembly for
garnering the most number of votes. He then took his oath of office on Nov 15th. On Dec 3rd, Nat'l Assembly
passed Res. No 8 which declared with finality the victory of Angara. On Dec 8, Ynsua filed before the Electoral
Commission a motion of protest against the election of Angara, that he be declared elected member of the Nat'l
Assembly. Electoral Commission passed a resolution in Dec 9th as the last day for the filing of the protests against
the election, returns and qualifications of the members of the National Assembly. On Dec 20, Angara filed before
the Elec. Commission a motion to dismiss the protest that the protest in question was filed out of the prescribed
period. The Elec. Commission denied Angara's petition.

Angara prayed for the issuance of writ of prohibition to restrain and prohibit the Electoral Commission taking
further cognizance of Ynsua's protest. He contended that the Constitution confers exclusive jurisdiction upon the
said Electoral Commissions as regards the merits of contested elections to the Nat'l Assembly and the Supreme
Court therefore has no jurisdiction to hear the case.

ISSUE:

Whether or not the SC has jurisdiction over the Electoral Commission and the subject matter of the controversy;

Whether or not The Electoral Commission has acted without or in excess of its jurisdiction.

RULING:

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

EN BANC

G.R. No. 204819 April 8, 2014

JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and in behalf of their minor
children, LUCIA CARLOS IMBONG and BERNADETTE CARLOS IMBONG and MAGNIFICAT
CHILD DEVELOPMENT CENTER, INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports
and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

x---------------------------------x

G.R. No. 204934

ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC. [ALFI], represented by its
President, Maria Concepcion S. Noche, Spouses Reynaldo S. Luistro & Rosie B . Luistro,
Jose S. Sandejas & Elenita S.A. Sandejas, Arturo M. Gorrez & Marietta C. Gorrez, Salvador S.
Mante, Jr. & Hazeleen L. Mante, Rolando M. Bautista & Maria Felisa S. Bautista, Desiderio
Racho & Traquilina Racho, F emand Antonio A. Tansingco & Carol Anne C. Tansingco for
themselves and on behalf of their minor children, Therese Antonette C. Tansingco, Lorenzo
Jose C. Tansingco, Miguel F emando C. Tangsingco, Carlo Josemaria C. Tansingco & Juan
Paolo C. Tansingco, Spouses Mariano V. Araneta & Eileen Z. Araneta for themselves and on
behalf of their minor children, Ramon Carlos Z. Araneta & Maya Angelica Z. Araneta, Spouses
Renato C. Castor & Mildred C. Castor for themselves and on behalf of their minor children,
Renz Jeffrey C. Castor, Joseph Ramil C. Castor, John Paul C. Castor & Raphael C. Castor,
Spouses Alexander R. Racho & Zara Z. Racho for themselves and on behalf of their minor
children Margarita Racho, Mikaela Racho, Martin Racho, Mari Racho & Manolo Racho,
Spouses Alfred R. Racho & Francine V. Racho for themselves and on behalf of their minor
children Michael Racho, Mariana Racho, Rafael Racho, Maxi Racho, Chessie Racho & Laura
Racho, Spouses David R. Racho & Armilyn A. Racho for themselves and on behalf of their
minor child Gabriel Racho, Mindy M. Juatas and on behalf of her minor children Elijah Gerald
Juatas and Elian Gabriel Juatas, Salvacion M. Monteiro, Emily R. Laws, Joseph R . Laws &
Katrina R. Laws, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary,
Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture
and Sports, HON. CORAZON SOLIMAN, Secretary, Department of Social Welfare and
Development, HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management,
HON. ARSENIO M. BALISACAN, Socio-Economic Planning Secretary and NEDA Director-
General, THE PHILIPPINE COMMISSION ON WOMEN, represented by its Chairperson,
Remedios lgnacio-Rikken, THE PHILIPPINE HEALTH INSURANCE CORPORATION,
represented by its President Eduardo Banzon, THE LEAGUE OF PROVINCES OF THE
PHILIPPINES, represented by its President Alfonso Umali, THE LEAGUE OF CITIES OF THE
PHILIPPINES, represented by its President Oscar Rodriguez, and THE LEAGUE OF
MUNICIPALITIES OF THE PHILIPPINES, represented by its President Donato
Marcos,Respondents.

x---------------------------------x

G.R. No. 204957

TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and VALERIANO S. AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management; HON. ENRIQUE T. ONA, Secretary, Department of
Education; and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

x---------------------------------x

G.R. No. 204988

SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr. Nestor B. Lumicao, M.D., as
President and in his personal capacity, ROSEVALE FOUNDATION INC., represented by Dr.
Rodrigo M. Alenton, M.D., as member of the school board and in his personal capacity,
ROSEMARIE R. ALENTON, IMELDA G. IBARRA, CPA, LOVENIAP. NACES, Phd., ANTHONY G.
NAGAC, EARL ANTHONY C. GAMBE and MARLON I. YAP,Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF
REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO
B. ABAD, Secretary, Department of Budget and Management; HON. ENRIQUE T. ONA,
Secretary, Department of Health; HON. ARMIN A. LUISTRO, Secretary, Department of
Education and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

x---------------------------------x

G.R. No. 205003

EXPEDITO A. BUGARIN, JR., Petitioner,

vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, HON. SENATE
PRESIDENT, HON. SPEAKER OF THE HOUSE OF REPRESENTATIVES and HON. SOLICITOR
GENERAL, Respondents.

x---------------------------------x

G.R. No. 205043

EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE APOSTOLATE OF THE

PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE H. LAZO, DBM SECRETARY
FLORENCIO B. ABAD, DILG SECRETARY MANUELA. ROXAS II, DECS SECRETARY ARMIN A.
LUISTRO, Respondents.

x---------------------------------x

G.R. No. 205138

PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein represented by its National

President, Atty. Ricardo M . Ribo, and in his own behalf, Atty. Lino E.A. Dumas, Romeo B.
Almonte, Osmundo C. Orlanes, Arsenio Z. Menor, Samuel J. Yap, Jaime F. Mateo, Rolly
Siguan, Dante E. Magdangal, Michael Eugenio O. Plana, Bienvenido C. Miguel, Jr., Landrito M.
Diokno and Baldomero Falcone, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, HON. MANUELA.
ROXAS II, Secretary, Department of Interior and Local Government, HON. CORAZON J.
SOLIMAN, Secretary, Department of Social Welfare and Development, HON. ARSENIO
BALISACAN, Director-General, National Economic and Development Authority, HON.
SUZETTE H. LAZO, Director-General, Food and Drugs Administration, THE BOARD OF
DIRECTORS, Philippine Health Insurance Corporation, and THE BOARD OF
COMMISSIONERS, Philippine Commission on Women, Respondents.

x---------------------------------x

G.R. No. 205478

REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D., CYNTHIA T. DOMINGO, M.D.,

AND JOSEPHINE MILLADO-LUMITAO, M.D., collectively known as Doctors For Life, and
ANTHONY PEREZ, MICHAEL ANTHONY G. MAPA, CARLOS ANTONIO PALAD, WILFREDO
JOSE, CLAIRE NAVARRO, ANNA COSIO, and GABRIEL DY LIACCO collectively known as
Filipinos For Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary
of the Department of Budget and Management; HON. ENRIQUE T. ONA, Secretary of the
Department of Health; HON. ARMIN A. LUISTRO, Secretary of the Department of Education;
and HON. MANUELA. ROXAS II, Secretary of the Department of Interior and Local
Government, Respondents.

x---------------------------------x

G.R. No. 205491

SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD & ALA F. PAGUIA, for
themselves, their Posterity, and the rest of Filipino posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of the Philippines, Respondent.

x---------------------------------x

G.R. No. 205720

PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by Loma Melegrito, as Executive
Director, and in her personal capacity, JOSELYN B. BASILIO, ROBERT Z. CORTES, ARIEL A.
CRISOSTOMO, JEREMY I. GATDULA, CRISTINA A. MONTES, RAUL ANTONIO A. NIDOY,
WINSTON CONRAD B. PADOJINOG, RUFINO L. POLICARPIO III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF
REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO
B. ABAD, Secretary, Department of Budget and Management, HON. ENRIQUE T. ONA,
Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of
Education and HON. MANUEL A. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

x---------------------------------x

G.R. No. 206355

MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON PEDROSA, ATTY. CITA BORROMEO-
GARCIA, STELLAACEDERA, ATTY. BERTENI CATALUNA CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE SECRETARY, DEPARTMENT OF
HEALTH, DEPARTMENT OF EDUCATION, Respondents.

x---------------------------------x

G.R. No. 207111

JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY VICTORIO B. LUMICAO, JOSEPH

MARTIN Q. VERDEJO, ANTONIA EMMA R. ROXAS and LOTA LAT-GUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports
and HON. MANUEL A. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

x---------------------------------x

G.R. No. 207172

COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN CARLOS ARTADI SARMIENTO
AND FRANCESCA ISABELLE BESINGA-SARMIENTO, AND SPOUSES LUIS FRANCIS A.
RODRIGO, JR. and DEBORAH MARIE VERONICA N. RODRIGO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports
and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

x---------------------------------x
G.R. No. 207563

ALMARIM CENTI TILLAH and ABDULHUSSEIN M. KASHIM, Petitioners,

vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary of the
Department of Health, and HON. ARMIN A. LUISTRO,Secretary of the Department of Budget
and Management,Respondents.

DECISION

MENDOZA, J.:

Freedom of religion was accorded preferred status by the framers of our fundamental law. And this
Court has consistently affirmed this preferred status, well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs , and to live as he believes he ought to live, consistent with the liberty of others
and with the common good."1

To this day, poverty is still a major stumbling block to the nation's emergence as a developed
country, leaving our people beleaguered in a state of hunger, illiteracy and unemployment. While
governmental policies have been geared towards the revitalization of the economy, the bludgeoning
dearth in social services remains to be a problem that concerns not only the poor, but every member
of society. The government continues to tread on a trying path to the realization of its very purpose,
that is, the general welfare of the Filipino people and the development of the country as a whole. The
legislative branch, as the main facet of a representative government, endeavors to enact laws and
policies that aim to remedy looming societal woes, while the executive is closed set to fully
implement these measures and bring concrete and substantial solutions within the reach of Juan
dela Cruz. Seemingly distant is the judicial branch, oftentimes regarded as an inert governmental
body that merely casts its watchful eyes on clashing stakeholders until it is called upon to adjudicate.
Passive, yet reflexive when called into action, the Judiciary then willingly embarks on its solemn duty
to interpret legislation vis-a-vis the most vital and enduring principle that holds Philippine society
together - the supremacy of the Philippine Constitution.

Nothing has polarized the nation more in recent years than the issues of population growth control,
abortion and contraception. As in every democratic society, diametrically opposed views on the
subjects and their perceived consequences freely circulate in various media. From television
debates2 to sticker campaigns,3 from rallies by socio-political activists to mass gatherings organized
by members of the clergy4 - the clash between the seemingly antithetical ideologies of the religious
conservatives and progressive liberals has caused a deep division in every level of the society.
Despite calls to withhold support thereto, however, Republic Act (R.A.) No. 10354, otherwise known
as the Responsible Parenthood and Reproductive Health Act of 2012 (RH Law), was enacted by
Congress on December 21, 2012.

Shortly after the President placed his imprimatur on the said law, challengers from various sectors of
society came knocking on the doors of the Court, beckoning it to wield the sword that strikes down
constitutional disobedience. Aware of the profound and lasting impact that its decision may produce,
the Court now faces the iuris controversy, as presented in fourteen (14) petitions and two (2)
petitions- in-intervention, to wit:

(1) Petition for Certiorari and Prohibition,5 filed by spouses Attys. James M. Imbong and
Lovely Ann C. Imbong, in their personal capacities as citizens, lawyers and taxpayers and on
behalf of their minor children; and the Magnificat Child Leaming Center, Inc., a domestic,
privately-owned educational institution (Jmbong);

(2) Petition for Prohibition,6 filed by the Alliance for the Family Foundation Philippines, Inc.,
through its president, Atty. Maria Concepcion S. Noche7 and several others8 in their personal
capacities as citizens and on behalf of the generations unborn (ALFI);

(3) Petition for Certiorari,9 filed by the Task Force for Family and Life Visayas, Inc., and
Valeriano S. Avila, in their capacities as citizens and taxpayers (Task Force Family);

(4) Petition for Certiorari and Prohibition,10 filed by Serve Life Cagayan De Oro City,
Inc.,11 Rosevale Foundation, Inc.,12 a domestic, privately-owned educational institution, and
several others,13 in their capacities as citizens (Serve Life);

(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity as a citizen (Bugarin);

(6) Petition for Certiorari and Prohibition,15 filed by Eduardo Olaguer and the Catholic
Xybrspace Apostolate of the Philippines,16 in their capacities as a citizens and taxpayers
(Olaguer);

(7) Petition for Certiorari and Prohibition,17 filed by the Philippine Alliance of Xseminarians
Inc.,18 and several others19 in their capacities as citizens and taxpayers (PAX);

(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several others,21 in their capacities as
citizens and taxpayers (Echavez);

(9) Petition for Certiorari and Prohibition,22 filed by spouses Francisco and Maria Fenny C.
Tatad and Atty. Alan F. Paguia, in their capacities as citizens, taxpayers and on behalf of
those yet unborn. Atty. Alan F. Paguia is also proceeding in his capacity as a member of the
Bar (Tatad);

(10) Petition for Certiorari and Prohibition,23 filed by Pro-Life Philippines Foundation Inc.24 and
several others,25 in their capacities as citizens and taxpayers and on behalf of its associates
who are members of the Bar (Pro-Life);

(11) Petition for Prohibition,26 filed by Millennium Saint Foundation, Inc.,27 Attys. Ramon
Pedrosa, Cita Borromeo-Garcia, Stella Acedera, and Berteni Catalufia Causing, in their
capacities as citizens, taxpayers and members of the Bar (MSF);

(12) Petition for Certiorari and Prohibition,28 filed by John Walter B. Juat and several
others,29 in their capacities as citizens (Juat) ;

(13) Petition for Certiorari and Prohibition,30 filed by Couples for Christ Foundation, Inc. and
several others,31in their capacities as citizens (CFC);

(14) Petition for Prohibition32 filed by Almarim Centi Tillah and Abdulhussein M. Kashim in
their capacities as citizens and taxpayers (Tillah); and

(15) Petition-In-Intervention,33 filed by Atty. Samson S. Alcantara in his capacity as a citizen

and a taxpayer (Alcantara); and
 (16) Petition-In-Intervention,34 filed by Buhay Hayaang Yumabong (B UHAY) , an accredited
political party.

A perusal of the foregoing petitions shows that the petitioners are assailing the constitutionality of
RH Law on the following GROUNDS:

The RH Law violates the right to life of the unborn. According to the petitioners,
notwithstanding its declared policy against abortion, the implementation of the RH Law would
authorize the purchase of hormonal contraceptives, intra-uterine devices and injectables
which are abortives, in violation of Section 12, Article II of the Constitution which guarantees
protection of both the life of the mother and the life of the unborn from conception.35

The RH Law violates the right to health and the right to protection against hazardous
products. The petitioners posit that the RH Law provides universal access to contraceptives
which are hazardous to one's health, as it causes cancer and other health problems.36

The RH Law violates the right to religious freedom. The petitioners contend that the RH
Law violates the constitutional guarantee respecting religion as it authorizes the use of public
funds for the procurement of contraceptives. For the petitioners, the use of public funds for
purposes that are believed to be contrary to their beliefs is included in the constitutional
mandate ensuring religious freedom.37

It is also contended that the RH Law threatens conscientious objectors of criminal prosecution,
imprisonment and other forms of punishment, as it compels medical practitioners 1] to refer patients
who seek advice on reproductive health programs to other doctors; and 2] to provide full and correct
information on reproductive health programs and service, although it is against their religious beliefs
and convictions.38

In this connection, Section 5 .23 of the Implementing Rules and Regulations of the RH Law (RH-
IRR),39 provides that skilled health professionals who are public officers such as, but not limited to,
Provincial, City, or Municipal Health Officers, medical officers, medical specialists, rural health
physicians, hospital staff nurses, public health nurses, or rural health midwives, who are specifically
charged with the duty to implement these Rules, cannot be considered as conscientious objectors.40

It is also argued that the RH Law providing for the formulation of mandatory sex education in schools
should not be allowed as it is an affront to their religious beliefs.41

While the petit10ners recognize that the guarantee of religious freedom is not absolute, they argue
that the RH Law fails to satisfy the "clear and present danger test" and the "compelling state interest
test" to justify the regulation of the right to free exercise of religion and the right to free speech.42

The RH Law violates the constitutional provision on involuntary servitude. According to the
petitioners, the RH Law subjects medical practitioners to involuntary servitude because, to
be accredited under the PhilHealth program, they are compelled to provide forty-eight (48)
hours of pro bona services for indigent women, under threat of criminal prosecution,
imprisonment and other forms of punishment.43

The petitioners explain that since a majority of patients are covered by PhilHealth, a medical
practitioner would effectively be forced to render reproductive health services since the lack of
PhilHealth accreditation would mean that the majority of the public would no longer be able to avail
of the practitioners services.44
 The RH Law violates the right to equal protection of the law. It is claimed that the RH Law
discriminates against the poor as it makes them the primary target of the government
program that promotes contraceptive use. The petitioners argue that, rather than promoting
reproductive health among the poor, the RH Law seeks to introduce contraceptives that
would effectively reduce the number of the poor.45

The RH Law is "void-for-vagueness" in violation of the due process clause of the

Constitution. In imposing the penalty of imprisonment and/or fine for "any violation," it is
vague because it does not define the type of conduct to be treated as "violation" of the RH
Law.46

In this connection, it is claimed that "Section 7 of the RH Law violates the right to due process by
removing from them (the people) the right to manage their own affairs and to decide what kind of
health facility they shall be and what kind of services they shall offer."47 It ignores the management
prerogative inherent in corporations for employers to conduct their affairs in accordance with their
own discretion and judgment.

The RH Law violates the right to free speech. To compel a person to explain a full range of
family planning methods is plainly to curtail his right to expound only his own preferred way
of family planning. The petitioners note that although exemption is granted to institutions
owned and operated by religious groups, they are still forced to refer their patients to another
healthcare facility willing to perform the service or procedure.48

The RH Law intrudes into the zone of privacy of one's family protected by the Constitution.
It is contended that the RH Law providing for mandatory reproductive health education
intrudes upon their constitutional right to raise their children in accordance with their beliefs.49

It is claimed that, by giving absolute authority to the person who will undergo reproductive health
procedure, the RH Law forsakes any real dialogue between the spouses and impedes the right of
spouses to mutually decide on matters pertaining to the overall well-being of their family. In the same
breath, it is also claimed that the parents of a child who has suffered a miscarriage are deprived of
parental authority to determine whether their child should use contraceptives.50

The RH Law violates the constitutional principle of non-delegation of legislative authority.

The petitioners question the delegation by Congress to the FDA of the power to determine
whether a product is non-abortifacient and to be included in the Emergency Drugs List
(EDL).51

The RH Law violates the one subject/one bill rule provision under Section 26( 1 ), Article VI
of the Constitution.52

The RH Law violates Natural Law.53

The RH Law violates the principle of Autonomy of Local Government Units (LGUs) and the
Autonomous Region of Muslim Mindanao {ARMM). It is contended that the RH Law,
providing for reproductive health measures at the local government level and the ARMM,
infringes upon the powers devolved to LGUs and the ARMM under the Local Government
Code and R.A . No. 9054.54

Various parties also sought and were granted leave to file their respective comments-in-intervention
in defense of the constitutionality of the RH Law. Aside from the Office of the Solicitor General
(OSG) which commented on the petitions in behalf of the respondents,55 Congressman Edcel C.
Lagman,56 former officials of the Department of Health Dr. Esperanza I. Cabral, Jamie Galvez-Tan,
and Dr. Alberto G. Romualdez,57 the Filipino Catholic Voices for Reproductive Health (C4RH),58 Ana
Theresa "Risa" Hontiveros,59 and Atty. Joan De Venecia60 also filed their respective Comments-in-
Intervention in conjunction with several others. On June 4, 2013, Senator Pia Juliana S. Cayetano
was also granted leave to intervene.61

The respondents, aside from traversing the substantive arguments of the petitioners, pray for the
dismissal of the petitions for the principal reasons that 1] there is no actual case or controversy and,
therefore, the issues are not yet ripe for judicial determination.; 2] some petitioners lack standing to
question the RH Law; and 3] the petitions are essentially petitions for declaratory relief over which
the Court has no original jurisdiction.

Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the assailed legislation took
effect.

On March 19, 2013, after considering the issues and arguments raised, the Court issued the Status
Quo Ante Order (SQAO), enjoining the effects and implementation of the assailed legislation for a
period of one hundred and twenty (120) days, or until July 17, 2013.62

On May 30, 2013, the Court held a preliminary conference with the counsels of the parties to
determine and/or identify the pertinent issues raised by the parties and the sequence by which these
issues were to be discussed in the oral arguments. On July 9 and 23, 2013, and on August 6, 13,
and 27, 2013, the cases were heard on oral argument. On July 16, 2013, the SQAO was ordered
extended until further orders of the Court.63

Thereafter, the Court directed the parties to submit their respective memoranda within sixty (60)
days and, at the same time posed several questions for their clarification on some contentions of the
parties.64

The Status Quo Ante

(Population, Contraceptive and Reproductive Health Laws

Prior to the RH Law

Long before the incipience of the RH Law, the country has allowed the sale, dispensation and
distribution of contraceptive drugs and devices. As far back as June 18, 1966, the country enacted
R.A. No. 4729 entitled "An Act to Regu,late the Sale, Dispensation, and/or Distribution of
Contraceptive Drugs and Devices." Although contraceptive drugs and devices were allowed, they
could not be sold, dispensed or distributed "unless such sale, dispensation and distribution is by a
duly licensed drug store or pharmaceutical company and with the prescription of a qualified medical
practitioner."65

In addition, R.A. No. 5921,66 approved on June 21, 1969, contained provisions relative to "dispensing
of abortifacients or anti-conceptional substances and devices." Under Section 37 thereof, it was
provided that "no drug or chemical product or device capable of provoking abortion or preventing
conception as classified by the Food and Drug Administration shall be delivered or sold to any
person without a proper prescription by a duly licensed physician."

On December 11, 1967, the Philippines, adhering to the UN Declaration on Population, which
recognized that the population problem should be considered as the principal element for long-term
economic development, enacted measures that promoted male vasectomy and tubal ligation to
mitigate population growth.67 Among these measures included R.A. No. 6365, approved on August
16, 1971, entitled "An Act Establishing a National Policy on Population, Creating the Commission on
Population and for Other Purposes. " The law envisioned that "family planning will be made part of a
broad educational program; safe and effective means will be provided to couples desiring to space
or limit family size; mortality and morbidity rates will be further reduced."

To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos issued Presidential
Decree. (P.D.) No. 79,68 dated December 8, 1972, which, among others, made "family planning a
part of a broad educational program," provided "family planning services as a part of over-all health
care," and made "available all acceptable methods of contraception, except abortion, to all Filipino
citizens desirous of spacing, limiting or preventing pregnancies."

Through the years, however, the use of contraceptives and family planning methods evolved from
being a component of demographic management, to one centered on the promotion of public health,
particularly, reproductive health.69 Under that policy, the country gave priority to one's right to freely
choose the method of family planning to be adopted, in conformity with its adherence to the
commitments made in the International Conference on Population and Development.70 Thus, on
August 14, 2009, the country enacted R.A. No. 9710 or "The Magna Carta for Women, " which,
among others, mandated the State to provide for comprehensive health services and programs for
women, including family planning and sex education.71

The RH Law

Despite the foregoing legislative measures, the population of the country kept on galloping at an
uncontrollable pace. From a paltry number of just over 27 million Filipinos in 1960, the population of
the country reached over 76 million in the year 2000 and over 92 million in 2010.72 The executive and
the legislative, thus, felt that the measures were still not adequate. To rein in the problem, the RH
Law was enacted to provide Filipinos, especially the poor and the marginalized, access and
information to the full range of modem family planning methods, and to ensure that its objective to
provide for the peoples' right to reproductive health be achieved. To make it more effective, the RH
Law made it mandatory for health providers to provide information on the full range of modem family
planning methods, supplies and services, and for schools to provide reproductive health education.
To put teeth to it, the RH Law criminalizes certain acts of refusals to carry out its mandates.

Stated differently, the RH Law is an enhancement measure to fortify and make effective the current
laws on contraception, women's health and population control.

Prayer of the Petitioners - Maintain the Status Quo

The petitioners are one in praying that the entire RH Law be declared unconstitutional. Petitioner
ALFI, in particular, argues that the government sponsored contraception program, the very essence
of the RH Law, violates the right to health of women and the sanctity of life, which the State is
mandated to protect and promote. Thus, ALFI prays that "the status quo ante - the situation prior to
the passage of the RH Law - must be maintained."73 It explains:

x x x. The instant Petition does not question contraception and contraceptives per se. As provided
under Republic Act No. 5921 and Republic Act No. 4729, the sale and distribution of contraceptives
are prohibited unless dispensed by a prescription duly licensed by a physician. What the Petitioners
find deplorable and repugnant under the RH Law is the role that the State and its agencies - the
entire bureaucracy, from the cabinet secretaries down to the barangay officials in the remotest areas
of the country - is made to play in the implementation of the contraception program to the fullest
extent possible using taxpayers' money. The State then will be the funder and provider of all forms of
family planning methods and the implementer of the program by ensuring the widespread
dissemination of, and universal access to, a full range of family planning methods, devices and
supplies.74

ISSUES

After a scrutiny of the various arguments and contentions of the parties, the Court has synthesized
and refined them to the following principal issues:

I. PROCEDURAL: Whether the Court may exercise its power of judicial review over the controversy.

1] Power of Judicial Review

2] Actual Case or Controversy

3] Facial Challenge

4] Locus Standi

5] Declaratory Relief

6] One Subject/One Title Rule

II. SUBSTANTIVE: Whether the RH law is unconstitutional:

1] Right to Life

2] Right to Health

3] Freedom of Religion and the Right to Free Speech

4] The Family

5] Freedom of Expression and Academic Freedom

6] Due Process

7] Equal Protection

8] Involuntary Servitude

9] Delegation of Authority to the FDA

10] Autonomy of Local Govemments/ARMM

DISCUSSION

Before delving into the constitutionality of the RH Law and its implementing rules, it behooves the
Court to resolve some procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can exercise its power of judicial review over the
controversy.

The Power of Judicial Review

In its attempt to persuade the Court to stay its judicial hand, the OSG asserts that it should submit to
the legislative and political wisdom of Congress and respect the compromises made in the crafting of
the RH Law, it being "a product of a majoritarian democratic process"75 and "characterized by an
inordinate amount of transparency."76 The OSG posits that the authority of the Court to review social
legislation like the RH Law by certiorari is "weak," since the Constitution vests the discretion to
implement the constitutional policies and positive norms with the political departments, in particular,
with Congress.77 It further asserts that in view of the Court's ruling in Southern Hemisphere v. Anti-
Terrorism Council,78 the remedies of certiorari and prohibition utilized by the petitioners are improper
to assail the validity of the acts of the legislature.79

Moreover, the OSG submits that as an "as applied challenge," it cannot prosper considering that the
assailed law has yet to be enforced and applied to the petitioners, and that the government has yet
to distribute reproductive health devices that are abortive. It claims that the RH Law cannot be
challenged "on its face" as it is not a speech-regulating measure.80

In many cases involving the determination of the constitutionality of the actions of the Executive and
the Legislature, it is often sought that the Court temper its exercise of judicial power and accord due
respect to the wisdom of its co-equal branch on the basis of the principle of separation of powers. To
be clear, the separation of powers is a fundamental principle in our system of government, which
obtains not through express provision but by actual division in our Constitution. Each department of
the government has exclusive cognizance of matters within its jurisdiction and is supreme within its
own sphere.81

Thus, the 1987 Constitution provides that: (a) the legislative power shall be vested in the Congress
of the Philippines;82 (b) the executive power shall be vested in the President of the Philippines;83 and
(c) the judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.84 The Constitution has truly blocked out with deft strokes and in bold lines, the
allotment of powers among the three branches of government.85

In its relationship with its co-equals, the Judiciary recognizes the doctrine of separation of powers
which imposes upon the courts proper restraint, born of the nature of their functions and of their
respect for the other branches of government, in striking down the acts of the Executive or the
Legislature as unconstitutional. Verily, the policy is a harmonious blend of courtesy and caution.86

It has also long been observed, however, that in times of social disquietude or political instability, the
great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated.87 In
order to address this, the Constitution impresses upon the Court to respect the acts performed by a
co-equal branch done within its sphere of competence and authority, but at the same time, allows it
to cross the line of separation - but only at a very limited and specific point - to determine whether
the acts of the executive and the legislative branches are null because they were undertaken with
grave abuse of discretion.88 Thus, while the Court may not pass upon questions of wisdom, justice or
expediency of the RH Law, it may do so where an attendant unconstitutionality or grave abuse of
discretion results.89 The Court must demonstrate its unflinching commitment to protect those
cherished rights and principles embodied in the Constitution.

In this connection, it bears adding that while the scope of judicial power of review may be limited, the
Constitution makes no distinction as to the kind of legislation that may be subject to judicial scrutiny,
be it in the form of social legislation or otherwise. The reason is simple and goes back to the earlier
point. The Court may pass upon the constitutionality of acts of the legislative and the executive
branches, since its duty is not to review their collective wisdom but, rather, to make sure that they
have acted in consonance with their respective authorities and rights as mandated of them by the
Constitution. If after said review, the Court finds no constitutional violations of any sort, then, it has
no more authority of proscribing the actions under review.90 This is in line with Article VIII, Section 1
of the Constitution which expressly provides:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law.

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. [Emphases supplied]

As far back as Tanada v. Angara,91 the Court has unequivocally declared that certiorari, prohibition
and mandamus are appropriate remedies to raise constitutional issues and to review and/or
prohibit/nullify, when proper, acts of legislative and executive officials, as there is no other plain,
speedy or adequate remedy in the ordinary course of law. This ruling was later on applied in
Macalintal v. COMELEC,92 Aldaba v. COMELEC,93 Magallona v. Ermita,94 and countless others. In
Tanada, the Court wrote:

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of the legislative
branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact
the duty of the judiciary to settle the dispute. "The question thus posed is judicial rather than political.
The duty (to adjudicate) remains to assure that the supremacy of the Constitution is upheld. " Once a
"controversy as to the application or interpretation of constitutional provision is raised before this
Court (as in the instant case), it becomes a legal issue which the Court is bound by constitutional
mandate to decide. [Emphasis supplied]

In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "judicial review is
essential for the maintenance and enforcement of the separation of powers and the balancing of
powers among the three great departments of government through the definition and maintenance of
the boundaries of authority and control between them. To him, judicial review is the chief, indeed the
only, medium of participation - or instrument of intervention - of the judiciary in that balancing
operation.95

Lest it be misunderstood, it bears emphasizing that the Court does not have the unbridled authority
to rule on just any and every claim of constitutional violation. Jurisprudence is replete with the rule
that the power of judicial review is limited by four exacting requisites, viz : (a) there must be an
actual case or controversy; (b) the petitioners must possess locus standi; (c) the question of
constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must
be the lis mota of the case.96

Actual Case or Controversy

Proponents of the RH Law submit that the subj ect petitions do not present any actual case or
controversy because the RH Law has yet to be implemented.97 They claim that the questions raised
by the petitions are not yet concrete and ripe for adjudication since no one has been charged with
violating any of its provisions and that there is no showing that any of the petitioners' rights has been
adversely affected by its operation.98 In short, it is contended that judicial review of the RH Law is
premature.

An actual case or controversy means an existing case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory, lest the decision of the court would amount to an
advisory opinion.99 The rule is that courts do not sit to adjudicate mere academic questions to satisfy
scholarly interest, however intellectually challenging. The controversy must be justiciable-definite
and concrete, touching on the legal relations of parties having adverse legal interests. In other
words, the pleadings must show an active antagonistic assertion of a legal right, on the one hand,
and a denial thereof, on the other; that is, it must concern a real, tangible and not merely a
theoretical question or issue. There ought to be an actual and substantial controversy admitting of
specific relief through a decree conclusive in nature, as distinguished from an opinion advising what
the law would be upon a hypothetical state of facts.100

Corollary to the requirement of an actual case or controversy is the requirement of ripeness.101 A

question is ripe for adjudication when the act being challenged has had a direct adverse effect on
the individual challenging it. For a case to be considered ripe for adjudication, it is a prerequisite that
something has then been accomplished or performed by either branch before a court may come into
the picture, and the petitioner must allege the existence of an immediate or threatened injury to
himself as a result of the challenged action. He must show that he has sustained or is immediately in
danger of sustaining some direct injury as a result of the act complained of102

In The Province of North Cotabato v. The Government of the Republic of the Philippines,103 where the
constitutionality of an unimplemented Memorandum of Agreement on the Ancestral Domain (MOA-
AD) was put in question, it was argued that the Court has no authority to pass upon the issues
raised as there was yet no concrete act performed that could possibly violate the petitioners' and the
intervenors' rights. Citing precedents, the Court ruled that the fact of the law or act in question being
not yet effective does not negate ripeness. Concrete acts under a law are not necessary to render
the controversy ripe. Even a singular violation of the Constitution and/or the law is enough to awaken
judicial duty.

In this case, the Court is of the view that an actual case or controversy exists and that the same is
ripe for judicial determination. Considering that the RH Law and its implementing rules have already
taken effect and that budgetary measures to carry out the law have already been passed, it is
evident that the subject petitions present a justiciable controversy. As stated earlier, when an action
of the legislative branch is seriously alleged to have infringed the Constitution, it not only becomes a
right, but also a duty of the Judiciary to settle the dispute.104

Moreover, the petitioners have shown that the case is so because medical practitioners or medical
providers are in danger of being criminally prosecuted under the RH Law for vague violations
thereof, particularly public health officers who are threatened to be dismissed from the service with
forfeiture of retirement and other benefits. They must, at least, be heard on the matter NOW.

Facial Challenge

The OSG also assails the propriety of the facial challenge lodged by the subject petitions,
contending that the RH Law cannot be challenged "on its face" as it is not a speech regulating
measure.105

The Court is not persuaded.

In United States (US) constitutional law, a facial challenge, also known as a First Amendment
Challenge, is one that is launched to assail the validity of statutes concerning not only protected
speech, but also all other rights in the First Amendment.106 These include religious freedom, freedom
of the press, and the right of the people to peaceably assemble, and to petition the Government for a
redress of grievances.107 After all, the fundamental right to religious freedom, freedom of the press
and peaceful assembly are but component rights of the right to one's freedom of expression, as they
are modes which one's thoughts are externalized.

In this jurisdiction, the application of doctrines originating from the U.S. has been generally
maintained, albeit with some modifications. While this Court has withheld the application of facial
challenges to strictly penal statues,108 it has expanded its scope to cover statutes not only regulating
free speech, but also those involving religious freedom, and other fundamental rights.109 The
underlying reason for this modification is simple. For unlike its counterpart in the U.S., this Court,
under its expanded jurisdiction, is mandated by the Fundamental Law 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 the Government.110 Verily, the framers of Our
Constitution envisioned a proactive Judiciary, ever vigilant with its duty to maintain the supremacy of
the Constitution.

Consequently, considering that the foregoing petitions have seriously alleged that the constitutional
human rights to life, speech and religion and other fundamental rights mentioned above have been
violated by the assailed legislation, the Court has authority to take cognizance of these kindred
petitions and to determine if the RH Law can indeed pass constitutional scrutiny. To dismiss these
petitions on the simple expedient that there exist no actual case or controversy, would diminish this
Court as a reactive branch of government, acting only when the Fundamental Law has been
transgressed, to the detriment of the Filipino people.

Locus Standi

The OSG also attacks the legal personality of the petitioners to file their respective petitions. It
contends that the "as applied challenge" lodged by the petitioners cannot prosper as the assailed
law has yet to be enforced and applied against them,111 and the government has yet to distribute
reproductive health devices that are abortive.112

The petitioners, for their part, invariably invoke the "transcendental importance" doctrine and their
status as citizens and taxpayers in establishing the requisite locus standi.

Locus standi or legal standing is defined as a personal and substantial interest in a case such that
the party has sustained or will sustain direct injury as a result of the challenged governmental
act.113 It requires a personal stake in the outcome of the controversy as to assure the concrete
adverseness which sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions.114

In relation to locus standi, the "as applied challenge" embodies the rule that one can challenge the
constitutionality of a statute only if he asserts a violation of his own rights. The rule prohibits one
from challenging the constitutionality of the statute grounded on a violation of the rights of third
persons not before the court. This rule is also known as the prohibition against third-party standing.115

Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of procedure,
hence, can be relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers, and legislators
when the public interest so requires, such as when the matter is of transcendental importance, of
overreaching significance to society, or of paramount public interest."116

In Coconut Oil Refiners Association, Inc. v. Torres,117 the Court held that in cases of paramount
importance where serious constitutional questions are involved, the standing requirement may be
relaxed and a suit may be allowed to prosper even where there is no direct injury to the party
claiming the right of judicial review. In the first Emergency Powers Cases,118 ordinary citizens and
taxpayers were allowed to question the constitutionality of several executive orders although they
had only an indirect and general interest shared in common with the public.

With these said, even if the constitutionality of the RH Law may not be assailed through an "as-
applied challenge, still, the Court has time and again acted liberally on the locus s tandi requirement.
It has accorded certain individuals standing to sue, not otherwise directly injured or with material
interest affected by a Government act, provided a constitutional issue of transcendental importance
is invoked. The rule on locus standi is, after all, a procedural technicality which the Court has, on
more than one occasion, waived or relaxed, thus allowing non-traditional plaintiffs, such as
concerned citizens, taxpayers, voters or legislators, to sue in the public interest, albeit they may not
have been directly injured by the operation of a law or any other government act. As held in Jaworski
v. PAGCOR:119

Granting arguendo that the present action cannot be properly treated as a petition for prohibition, the
transcendental importance of the issues involved in this case warrants that we set aside the
technical defects and take primary jurisdiction over the petition at bar. One cannot deny that the
issues raised herein have potentially pervasive influence on the social and moral well being of this
nation, specially the youth; hence, their proper and just determination is an imperative need. This is
in accordance with the well-entrenched principle that rules of procedure are not inflexible tools
designed to hinder or delay, but to facilitate and promote the administration of justice. Their strict and
rigid application, which would result in technicalities that tend to frustrate, rather than promote
substantial justice, must always be eschewed. (Emphasis supplied)

In view of the seriousness, novelty and weight as precedents, not only to the public, but also to the
bench and bar, the issues raised must be resolved for the guidance of all. After all, the RH Law
drastically affects the constitutional provisions on the right to life and health, the freedom of religion
and expression and other constitutional rights. Mindful of all these and the fact that the issues of
contraception and reproductive health have already caused deep division among a broad spectrum
of society, the Court entertains no doubt that the petitions raise issues of transcendental importance
warranting immediate court adjudication. More importantly, considering that it is the right to life of the
mother and the unborn which is primarily at issue, the Court need not wait for a life to be taken away
before taking action.

The Court cannot, and should not, exercise judicial restraint at this time when rights enshrined in the
Constitution are being imperilled to be violated. To do so, when the life of either the mother or her
child is at stake, would lead to irreparable consequences.

Declaratory Relief

The respondents also assail the petitions because they are essentially petitions for declaratory relief
over which the Court has no original jurisdiction.120 Suffice it to state that most of the petitions are
praying for injunctive reliefs and so the Court would just consider them as petitions for prohibition
under Rule 65, over which it has original jurisdiction. Where the case has far-reaching implications
and prays for injunctive reliefs, the Court may consider them as petitions for prohibition under Rule
65.121

One Subject-One Title

The petitioners also question the constitutionality of the RH Law, claiming that it violates Section
26(1 ), Article VI of the Constitution,122 prescribing the one subject-one title rule. According to them,
being one for reproductive health with responsible parenthood, the assailed legislation violates the
constitutional standards of due process by concealing its true intent - to act as a population control
measure.123

To belittle the challenge, the respondents insist that the RH Law is not a birth or population control
measure,124 and that the concepts of "responsible parenthood" and "reproductive health" are both
interrelated as they are inseparable.125

Despite efforts to push the RH Law as a reproductive health law, the Court sees it as principally a
population control measure. The corpus of the RH Law is geared towards the reduction of the
country's population. While it claims to save lives and keep our women and children healthy, it also
promotes pregnancy-preventing products. As stated earlier, the RH Law emphasizes the need to
provide Filipinos, especially the poor and the marginalized, with access to information on the full
range of modem family planning products and methods. These family planning methods, natural or
modem, however, are clearly geared towards the prevention of pregnancy.

For said reason, the manifest underlying objective of the RH Law is to reduce the number of births in
the country.

It cannot be denied that the measure also seeks to provide pre-natal and post-natal care as well. A
large portion of the law, however, covers the dissemination of information and provisions on access
to medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive health care
services, methods, devices, and supplies, which are all intended to prevent pregnancy.

The Court, thus, agrees with the petitioners' contention that the whole idea of contraception
pervades the entire RH Law. It is, in fact, the central idea of the RH Law.126 Indeed, remove the
provisions that refer to contraception or are related to it and the RH Law loses its very
foundation.127 As earlier explained, "the other positive provisions such as skilled birth attendance,
maternal care including pre-and post-natal services, prevention and management of reproductive
tract infections including HIV/AIDS are already provided for in the Magna Carta for Women."128

Be that as it may, the RH Law does not violate the one subject/one bill rule. In Benjamin E.
Cawaling, Jr. v. The Commission on Elections and Rep. Francis Joseph G Escudero, it was written:

It is well-settled that the "one title-one subject" rule does not require the Congress to employ in the
title of the enactment language of such precision as to mirror, fully index or catalogue all the
contents and the minute details therein. The rule is sufficiently complied with if the title is
comprehensive enough as to include the general object which the statute seeks to effect, and where,
as here, the persons interested are informed of the nature, scope and consequences of the
proposed law and its operation. Moreover, this Court has invariably adopted a liberal rather than
technical construction of the rule "so as not to cripple or impede legislation." [Emphases supplied]

In this case, a textual analysis of the various provisions of the law shows that both "reproductive
health" and "responsible parenthood" are interrelated and germane to the overriding objective to
control the population growth. As expressed in the first paragraph of Section 2 of the RH Law:
SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human rights of all
persons including their right to equality and nondiscrimination of these rights, the right to sustainable
human development, the right to health which includes reproductive health, the right to education
and information, and the right to choose and make decisions for themselves in accordance with their
religious convictions, ethics, cultural beliefs, and the demands of responsible parenthood.

The one subject/one title rule expresses the principle that the title of a law must not be "so uncertain
that the average person reading it would not be informed of the purpose of the enactment or put on
inquiry as to its contents, or which is misleading, either in referring to or indicating one subject where
another or different one is really embraced in the act, or in omitting any expression or indication of
the real subject or scope of the act."129

Considering the close intimacy between "reproductive health" and "responsible parenthood" which
bears to the attainment of the goal of achieving "sustainable human development" as stated under
its terms, the Court finds no reason to believe that Congress intentionally sought to deceive the
public as to the contents of the assailed legislation.

II - SUBSTANTIVE ISSUES:

1-The Right to Life

Position of the Petitioners

The petitioners assail the RH Law because it violates the right to life and health of the unborn child
under Section 12, Article II of the Constitution. The assailed legislation allowing access to
abortifacients/abortives effectively sanctions abortion.130

According to the petitioners, despite its express terms prohibiting abortion, Section 4(a) of the RH
Law considers contraceptives that prevent the fertilized ovum to reach and be implanted in the
mother's womb as an abortifacient; thus, sanctioning contraceptives that take effect after fertilization
and prior to implantation, contrary to the intent of the Framers of the Constitution to afford protection
to the fertilized ovum which already has life.

They argue that even if Section 9 of the RH Law allows only "non-abortifacient" hormonal
contraceptives, intrauterine devices, injectables and other safe, legal, non-abortifacient and effective
family planning products and supplies, medical research shows that contraceptives use results in
abortion as they operate to kill the fertilized ovum which already has life.131

As it opposes the initiation of life, which is a fundamental human good, the petitioners assert that the
State sanction of contraceptive use contravenes natural law and is an affront to the dignity of man.132

Finally, it is contended that since Section 9 of the RH Law requires the Food and Drug
Administration (FDA) to certify that the product or supply is not to be used as an abortifacient, the
assailed legislation effectively confirms that abortifacients are not prohibited. Also considering that
the FDA is not the agency that will actually supervise or administer the use of these products and
supplies to prospective patients, there is no way it can truthfully make a certification that it shall not
be used for abortifacient purposes.133

Position of the Respondents

For their part, the defenders of the RH Law point out that the intent of the Framers of the
Constitution was simply the prohibition of abortion. They contend that the RH Law does not violate
the Constitution since the said law emphasizes that only "non-abortifacient" reproductive health care
services, methods, devices products and supplies shall be made accessible to the public.134

According to the OSG, Congress has made a legislative determination that contraceptives are not
abortifacients by enacting the RH Law. As the RH Law was enacted with due consideration to
various studies and consultations with the World Health Organization (WHO) and other experts in
the medical field, it is asserted that the Court afford deference and respect to such a determination
and pass judgment only when a particular drug or device is later on determined as an abortive.135

For his part, respondent Lagman argues that the constitutional protection of one's right to life is not
violated considering that various studies of the WHO show that life begins from the implantation of
the fertilized ovum. Consequently, he argues that the RH Law is constitutional since the law
specifically provides that only contraceptives that do not prevent the implantation of the fertilized
ovum are allowed.136

The Court's Position

It is a universally accepted principle that every human being enjoys the right to life.137

Even if not formally established, the right to life, being grounded on natural law, is inherent and,
therefore, not a creation of, or dependent upon a particular law, custom, or belief. It precedes and
transcends any authority or the laws of men.

In this jurisdiction, the right to life is given more than ample protection. Section 1, Article III of the
Constitution provides:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor
shall any person be denied the equal protection of the laws.

As expounded earlier, the use of contraceptives and family planning methods in the Philippines is
not of recent vintage. From the enactment of R.A. No. 4729, entitled "An Act To Regulate The Sale,
Dispensation, and/or Distribution of Contraceptive Drugs and Devices "on June 18, 1966, prescribing
rules on contraceptive drugs and devices which prevent fertilization,138 to the promotion of male
vasectomy and tubal ligation,139 and the ratification of numerous international agreements, the
country has long recognized the need to promote population control through the use of
contraceptives in order to achieve long-term economic development. Through the years, however,
the use of contraceptives and other family planning methods evolved from being a component of
demographic management, to one centered on the promotion of public health, particularly,
reproductive health.140

This has resulted in the enactment of various measures promoting women's rights and health and
the overall promotion of the family's well-being. Thus, aside from R.A. No. 4729, R.A. No. 6365 or
"The Population Act of the Philippines" and R.A. No. 9710, otherwise known as the "The Magna
Carta of Women" were legislated. Notwithstanding this paradigm shift, the Philippine national
population program has always been grounded two cornerstone principles: "principle of no-abortion"
and the "principle of non-coercion."141 As will be discussed later, these principles are not merely
grounded on administrative policy, but rather, originates from the constitutional protection expressly
provided to afford protection to life and guarantee religious freedom.

When Life Begins*

Majority of the Members of the Court are of the position that the question of when life begins is a
scientific and medical issue that should not be decided, at this stage, without proper hearing and
evidence. During the deliberation, however, it was agreed upon that the individual members of the
Court could express their own views on this matter.

In this regard, the ponente, is of the strong view that life begins at fertilization.

In answering the question of when life begins, focus should be made on the particular phrase of
Section 12 which reads:

Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the
family as a basic autonomous social institution. It shall equally protect the life of the mother and the
life of the unborn from conception. The natural and primary right and duty of parents in the rearing of
the youth for civic efficiency and the development of moral character shall receive the support of the
Government.

Textually, the Constitution affords protection to the unborn from conception. This is undisputable
because before conception, there is no unborn to speak of. For said reason, it is no surprise that the
Constitution is mute as to any proscription prior to conception or when life begins. The problem has
arisen because, amazingly, there are quarters who have conveniently disregarded the scientific fact
that conception is reckoned from fertilization. They are waving the view that life begins at
implantation. Hence, the issue of when life begins.

In a nutshell, those opposing the RH Law contend that conception is synonymous with "fertilization"
of the female ovum by the male sperm.142 On the other side of the spectrum are those who assert
that conception refers to the "implantation" of the fertilized ovum in the uterus.143

Plain and Legal Meaning

It is a canon in statutory construction that the words of the Constitution should be interpreted in their
plain and ordinary meaning. As held in the recent case of Chavez v. Judicial Bar Council:144

One of the primary and basic rules in statutory construction is that where the words of a statute are
clear, plain, and free from ambiguity, it must be given its literal meaning and applied without
attempted interpretation. It is a well-settled principle of constitutional construction that the language
employed in the Constitution must be given their ordinary meaning except where technical terms are
employed. As much as possible, the words of the Constitution should be understood in the sense
they have in common use. What it says according to the text of the provision to be construed
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. Verba legis non est recedendum - from the words of a
statute there should be no departure.

The raison d' etre for the rule is essentially two-fold: First, because it is assumed that the words in
which constitutional provisions are couched express the objective sought to be attained; and second,
because the Constitution is not primarily a lawyer's document but essentially that of the people, in
whose consciousness it should ever be present as an important condition for the rule of law to
prevail.

In conformity with the above principle, the traditional meaning of the word "conception" which, as
described and defined by all reliable and reputable sources, means that life begins at fertilization.
Webster's Third New International Dictionary describes it as the act of becoming pregnant, formation
of a viable zygote; the fertilization that results in a new entity capable of developing into a being like
its parents.145

Black's Law Dictionary gives legal meaning to the term "conception" as the fecundation of the female
ovum by the male spermatozoon resulting in human life capable of survival and maturation under
normal conditions.146

Even in jurisprudence, an unborn child has already a legal personality. In Continental Steel
Manufacturing Corporation v. Hon. Accredited Voluntary Arbitrator Allan S. Montano,147 it was written:

Life is not synonymous with civil personality. One need not acquire civil personality first before
he/she could die. Even a child inside the womb already has life. No less than the Constitution
recognizes the life of the unborn from conception, that the State must protect equally with the life of
the mother. If the unborn already has life, then the cessation thereof even prior to the child being
delivered, qualifies as death. [Emphases in the original]

In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US Supreme Court, said that the
State "has respect for human life at all stages in the pregnancy" and "a legitimate and substantial
interest in preserving and promoting fetal life." Invariably, in the decision, the fetus was referred to,
or cited, as a baby or a child.149

Intent of the Framers

Records of the Constitutional Convention also shed light on the intention of the Framers regarding
the term "conception" used in Section 12, Article II of the Constitution. From their deliberations, it
clearly refers to the moment of "fertilization." The records reflect the following:

Rev. Rigos: In Section 9, page 3, there is a sentence which reads:

"The State shall equally protect the life of the mother and the life of the unborn from the moment of
conception."

When is the moment of conception?

xxx

Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is fertilized by the sperm
that there is human life. x x x.150

xxx

As to why conception is reckoned from fertilization and, as such, the beginning of human life, it was
explained:

Mr. Villegas: I propose to review this issue in a biological manner. The first question that needs to be
answered is: Is the fertilized ovum alive? Biologically categorically says yes, the fertilized ovum is
alive. First of all, like all living organisms, it takes in nutrients which it processes by itself. It begins
doing this upon fertilization. Secondly, as it takes in these nutrients, it grows from within. Thirdly, it
multiplies itself at a geometric rate in the continuous process of cell division. All these processes are
vital signs of life. Therefore, there is no question that biologically the fertilized ovum has life.
The second question: Is it human? Genetics gives an equally categorical "yes." At the moment of
conception, the nuclei of the ovum and the sperm rupture. As this happens 23 chromosomes from
the ovum combine with 23 chromosomes of the sperm to form a total of 46 chromosomes. A
chromosome count of 46 is found only - and I repeat, only in human cells. Therefore, the fertilized
ovum is human.

Since these questions have been answered affirmatively, we must conclude that if the fertilized
ovum is both alive and human, then, as night follows day, it must be human life. Its nature is
human.151

Why the Constitution used the phrase "from the moment of conception" and not "from the moment of
fertilization" was not because of doubt when human life begins, but rather, because:

Mr. Tingson: x x x x the phrase from the moment of conception" was described by us here before
with the scientific phrase "fertilized ovum" may be beyond the comprehension of some people; we
want to use the simpler phrase "from the moment of conception."152

Thus, in order to ensure that the fertilized ovum is given ample protection under the Constitution, it
was discussed:

Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose of writing a
Constitution, without specifying "from the moment of conception."

Mr. Davide: I would not subscribe to that particular view because according to the Commissioner's
own admission, he would leave it to Congress to define when life begins. So, Congress can define
life to begin from six months after fertilization; and that would really be very, very, dangerous. It is
now determined by science that life begins from the moment of conception. There can be no doubt
about it. So we should not give any doubt to Congress, too.153

Upon further inquiry, it was asked:

Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point. Actually, that is one of
the questions I was going to raise during the period of interpellations but it has been expressed
already. The provision, as proposed right now states:

The State shall equally protect the life of the mother and the life of the unborn from the moment of
conception.

When it speaks of "from the moment of conception," does this mean when the egg meets the
sperm?

Mr. Villegas: Yes, the ovum is fertilized by the sperm.

Mr. Gascon: Therefore that does not leave to Congress the right to determine whether certain
contraceptives that we know today are abortifacient or not because it is a fact that some of the so-
called contraceptives deter the rooting of the ovum in the uterus. If fertilization has already occurred,
the next process is for the fertilized ovum to travel towards the uterus and to take root. What
happens with some contraceptives is that they stop the opportunity for the fertilized ovum to reach
the uterus. Therefore, if we take the provision as it is proposed, these so called contraceptives
should be banned.
Mr. Villegas: Yes, if that physical fact is established, then that is what is called abortifacient and,
therefore, would be unconstitutional and should be banned under this provision.

Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state whether or not these
certain contraceptives are abortifacient. Scientifically and based on the provision as it is now
proposed, they are already considered abortifacient.154

From the deliberations above-quoted, it is apparent that the Framers of the Constitution emphasized
that the State shall provide equal protection to both the mother and the unborn child from the earliest
opportunity of life, that is, upon fertilization or upon the union of the male sperm and the female
ovum. It is also apparent is that the Framers of the Constitution intended that to prohibit Congress
from enacting measures that would allow it determine when life begins.

Equally apparent, however, is that the Framers of the Constitution did not intend to ban all
contraceptives for being unconstitutional. In fact, Commissioner Bernardo Villegas, spearheading the
need to have a constitutional provision on the right to life, recognized that the determination of
whether a contraceptive device is an abortifacient is a question of fact which should be left to the
courts to decide on based on established evidence.155

From the discussions above, contraceptives that kill or destroy the fertilized ovum should be deemed
an abortive and thus prohibited. Conversely, contraceptives that actually prevent the union of the
male sperm and the female ovum, and those that similarly take action prior to fertilization should be
deemed non-abortive, and thus, constitutionally permissible.

As emphasized by the Framers of the Constitution:

xxx xxx xxx

Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am pro-life, to the point that I
would like not only to protect the life of the unborn, but also the lives of the millions of people in the
world by fighting for a nuclear-free world. I would just like to be assured of the legal and pragmatic
implications of the term "protection of the life of the unborn from the moment of conception." I raised
some of these implications this afternoon when I interjected in the interpellation of Commissioner
Regalado. I would like to ask that question again for a categorical answer.

I mentioned that if we institutionalize the term "the life of the unborn from the moment of conception"
we are also actually saying "no," not "maybe," to certain contraceptives which are already being
encouraged at this point in time. Is that the sense of the committee or does it disagree with me?

Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be preventive. There is no
unborn yet. That is yet unshaped.

Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some contraceptives, such
as the intra-uterine device which actually stops the egg which has already been fertilized from taking
route to the uterus. So if we say "from the moment of conception," what really occurs is that some of
these contraceptives will have to be unconstitutionalized.

Mr. Azcuna: Yes, to the extent that it is after the fertilization.

Mr. Gascon: Thank you, Mr. Presiding Officer.156

The fact that not all contraceptives are prohibited by the 1987 Constitution is even admitted by
petitioners during the oral arguments. There it was conceded that tubal ligation, vasectomy, even
condoms are not classified as abortifacients.157

Atty. Noche:

Before the union of the eggs, egg and the sperm, there is no life yet.

Justice Bersamin:

There is no life.

Atty. Noche:

So, there is no life to be protected.

Justice Bersamin:

To be protected.

Atty. Noche:

Under Section 12, yes.

Justice Bersamin:

So you have no objection to condoms?

Atty. Noche:

Not under Section 12, Article II.

Justice Bersamin:

Even if there is already information that condoms sometimes have porosity?

Atty. Noche:

Well, yes, Your Honor, there are scientific findings to that effect, Your Honor, but I am discussing
here Section 12, Article II, Your Honor, yes.

Justice Bersamin:

Alright.

Atty. Noche:

And it's not, I have to admit it's not an abortifacient, Your Honor.158

Medical Meaning
That conception begins at fertilization is not bereft of medical foundation. Mosby s Medical, Nursing,
and Allied Health Dictionary defines conception as "the beginning of pregnancy usually taken to be
the instant a spermatozoon enters an ovum and forms a viable zygote."159

It describes fertilization as "the union of male and female gametes to form a zygote from which the
embryo develops."160

The Textbook of Obstetrics (Physiological & Pathological Obstetrics),161 used by medical schools in
the Philippines, also concludes that human life (human person) begins at the moment of fertilization
with the union of the egg and the sperm resulting in the formation of a new individual, with a unique
genetic composition that dictates all developmental stages that ensue.

Similarly, recent medical research on the matter also reveals that: "Human development begins after
the union of male and female gametes or germ cells during a process known as fertilization
(conception). Fertilization is a sequence of events that begins with the contact of a sperm
(spermatozoon) with a secondary oocyte (ovum) and ends with the fusion of their pronuclei (the
haploid nuclei of the sperm and ovum) and the mingling of their chromosomes to form a new cell.
This fertilized ovum, known as a zygote, is a large diploid cell that is the beginning, or primordium, of
a human being."162

The authors of Human Embryology & Teratology163 mirror the same position. They wrote: "Although
life is a continuous process, fertilization is a critical landmark because, under ordinary
circumstances, a new, genetically distinct human organism is thereby formed.... The combination of
23 chromosomes present in each pronucleus results in 46 chromosomes in the zygote. Thus the
diploid number is restored and the embryonic genome is formed. The embryo now exists as a
genetic unity."

In support of the RH Bill, The Philippine Medical Association came out with a "Paper on the
Reproductive Health Bill (Responsible Parenthood Bill)" and therein concluded that:

CONCLUSION

The PMA throws its full weight in supporting the RH Bill at the same time that PMA maintains its
strong position that fertilization is sacred because it is at this stage that conception, and thus human
life, begins. Human lives are sacred from the moment of conception, and that destroying those new
lives is never licit, no matter what the purported good outcome would be. In terms of biology and
human embryology, a human being begins immediately at fertilization and after that, there is no point
along the continuous line of human embryogenesis where only a "potential" human being can be
posited. Any philosophical, legal, or political conclusion cannot escape this objective scientific fact.

The scientific evidence supports the conclusion that a zygote is a human organism and that the life
of a new human being commences at a scientifically well defined "moment of conception." This
conclusion is objective, consistent with the factual evidence, and independent of any specific ethical,
moral, political, or religious view of human life or of human embryos.164

Conclusion: The Moment of Conception is Reckoned from

Fertilization

In all, whether it be taken from a plain meaning, or understood under medical parlance, and more
importantly, following the intention of the Framers of the Constitution, the undeniable conclusion is
that a zygote is a human organism and that the life of a new human being commences at a
scientifically well-defined moment of conception, that is, upon fertilization.
For the above reasons, the Court cannot subscribe to the theory advocated by Hon. Lagman that life
begins at implantation.165 According to him, "fertilization and conception are two distinct and
successive stages in the reproductive process. They are not identical and synonymous."166 Citing a
letter of the WHO, he wrote that "medical authorities confirm that the implantation of the fertilized
ovum is the commencement of conception and it is only after implantation that pregnancy can be
medically detected."167

This theory of implantation as the beginning of life is devoid of any legal or scientific mooring. It does
not pertain to the beginning of life but to the viability of the fetus. The fertilized ovum/zygote is not an
inanimate object - it is a living human being complete with DNA and 46 chromosomes.168 Implantation
has been conceptualized only for convenience by those who had population control in mind. To
adopt it would constitute textual infidelity not only to the RH Law but also to the Constitution.

Not surprisingly, even the OSG does not support this position.

If such theory would be accepted, it would unnervingly legitimize the utilization of any drug or device
that would prevent the implantation of the fetus at the uterine wall. It would be provocative and
further aggravate religious-based divisiveness.

It would legally permit what the Constitution proscribes - abortion and abortifacients.

The RH Law and Abortion

The clear and unequivocal intent of the Framers of the 1987 Constitution in protecting the life of the
unborn from conception was to prevent the Legislature from enacting a measure legalizing abortion.
It was so clear that even the Court cannot interpret it otherwise. This intent of the Framers was
captured in the record of the proceedings of the 1986 Constitutional Commission. Commissioner
Bernardo Villegas, the principal proponent of the protection of the unborn from conception,
explained:

The intention .. .is to make sure that there would be no pro-abortion laws ever passed by Congress
or any pro-abortion decision passed by the Supreme Court.169

A reading of the RH Law would show that it is in line with this intent and actually proscribes abortion.
While the Court has opted not to make any determination, at this stage, when life begins, it finds that
the RH Law itself clearly mandates that protection be afforded from the moment of fertilization. As
pointed out by Justice Carpio, the RH Law is replete with provisions that embody the policy of the
law to protect to the fertilized ovum and that it should be afforded safe travel to the uterus for
implantation.170

Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the Revised Penal
Code, which penalizes the destruction or expulsion of the fertilized ovum. Thus:

1] xx x.

Section 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as
follows:

xxx.
(q) Reproductive health care refers to the access to a full range of methods, facilities, services and
supplies that contribute to reproductive health and well-being by addressing reproductive health-
related problems. It also includes sexual health, the purpose of which is the enhancement of life and
personal relations. The elements of reproductive health care include the following:

xxx.

(3) Proscription of abortion and management of abortion complications;

xxx.

2] xx x.

Section 4. x x x.

(s) Reproductive health rights refers to the rights of individuals and couples, to decide freely and
responsibly whether or not to have children; the number, spacing and timing of their children; to
make other decisions concerning reproduction, free of discrimination, coercion and violence; to have
the information and means to do so; and to attain the highest standard of sexual health and
reproductive health: Provided, however, That reproductive health rights do not include abortion, and
access to abortifacients.

3] xx x.

SEC. 29. Repealing Clause. - Except for prevailing laws against abortion, any law, presidential
decree or issuance, executive order, letter of instruction, administrative order, rule or regulation
contrary to or is inconsistent with the provisions of this Act including Republic Act No. 7392,
otherwise known as the Midwifery Act, is hereby repealed, modified or amended accordingly.

The RH Law and Abortifacients

In carrying out its declared policy, the RH Law is consistent in prohibiting abortifacients. To be clear,
Section 4(a) of the RH Law defines an abortifacient as:

Section 4. Definition of Terms - x x x x

(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside
the mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's
womb upon determination of the FDA.

As stated above, the RH Law mandates that protection must be afforded from the moment of
fertilization. By using the word " or," the RH Law prohibits not only drugs or devices that prevent
implantation, but also those that induce abortion and those that induce the destruction of a fetus
inside the mother's womb. Thus, an abortifacient is any drug or device that either:

(a) Induces abortion; or

(b) Induces the destruction of a fetus inside the mother's womb; or

(c) Prevents the fertilized ovum to reach and be implanted in the mother's womb, upon
determination of the FDA.
Contrary to the assertions made by the petitioners, the Court finds that the RH Law, consistent with
the Constitution, recognizes that the fertilized ovum already has life and that the State has a
bounden duty to protect it. The conclusion becomes clear because the RH Law, first, prohibits any
drug or device that induces abortion (first kind), which, as discussed exhaustively above, refers to
that which induces the killing or the destruction of the fertilized ovum, and, second, prohibits any
drug or device the fertilized ovum to reach and be implanted in the mother's womb (third kind).

By expressly declaring that any drug or device that prevents the fertilized ovum to reach and be
implanted in the mother's womb is an abortifacient (third kind), the RH Law does not intend to mean
at all that life only begins only at implantation, as Hon. Lagman suggests. It also does not declare
either that protection will only be given upon implantation, as the petitioners likewise suggest.
Rather, it recognizes that: one, there is a need to protect the fertilized ovum which already has life,
and two, the fertilized ovum must be protected the moment it becomes existent - all the way until it
reaches and implants in the mother's womb. After all, if life is only recognized and afforded
protection from the moment the fertilized ovum implants - there is nothing to prevent any drug or
device from killing or destroying the fertilized ovum prior to implantation.

From the foregoing, the Court finds that inasmuch as it affords protection to the fertilized ovum, the
RH Law does not sanction abortion. To repeat, it is the Court's position that life begins at fertilization,
not at implantation. When a fertilized ovum is implanted in the uterine wall , its viability is sustained
but that instance of implantation is not the point of beginning of life. It started earlier. And as defined
by the RH Law, any drug or device that induces abortion, that is, which kills or destroys the fertilized
ovum or prevents the fertilized ovum to reach and be implanted in the mother's womb, is an
abortifacient.

Proviso Under Section 9 of the RH Law

This notwithstanding, the Court finds that the proviso under Section 9 of the law that "any product or
supply included or to be included in the EDL must have a certification from the FDA that said product
and supply is made available on the condition that it is not to be used as an abortifacient" as empty
as it is absurd. The FDA, with all its expertise, cannot fully attest that a drug or device will not all be
used as an abortifacient, since the agency cannot be present in every instance when the
contraceptive product or supply will be used.171

Pursuant to its declared policy of providing access only to safe, legal and non-abortifacient
contraceptives, however, the Court finds that the proviso of Section 9, as worded, should bend to the
legislative intent and mean that "any product or supply included or to be included in the EDL must
have a certification from the FDA that said product and supply is made available on the condition
that it cannot be used as abortifacient." Such a construction is consistent with the proviso under the
second paragraph of the same section that provides:

Provided, further, That the foregoing offices shall not purchase or acquire by any means emergency
contraceptive pills, postcoital pills, abortifacients that will be used for such purpose and their other
forms or equivalent.

Abortifacients under the RH-IRR

At this juncture, the Court agrees with ALFI that the authors of the RH-IRR gravely abused their
office when they redefined the meaning of abortifacient. The RH Law defines "abortifacient" as
follows:
SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as
follows:

(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside
the mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's
womb upon determination of the FDA.

Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:

Section 3.01 For purposes of these Rules, the terms shall be defined as follows:

a) Abortifacient refers to any drug or device that primarily induces abortion or the destruction of a
fetus inside the mother's womb or the prevention of the fertilized ovum to reach and be implanted in
the mother's womb upon determination of the Food and Drug Administration (FDA). [Emphasis
supplied]

Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:

j) Contraceptive refers to any safe, legal, effective and scientifically proven modern family planning
method, device, or health product, whether natural or artificial, that prevents pregnancy but does not
primarily destroy a fertilized ovum or prevent a fertilized ovum from being implanted in the mother's
womb in doses of its approved indication as determined by the Food and Drug Administration (FDA).

The above-mentioned section of the RH-IRR allows "contraceptives" and recognizes as

"abortifacient" only those that primarily induce abortion or the destruction of a fetus inside the
mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's
womb.172

This cannot be done.

In this regard, the observations of Justice Brion and Justice Del Castillo are well taken. As they
pointed out, with the insertion of the word "primarily," Section 3.0l(a) and G) of the RH-IRR173 must be
struck down for being ultra vires.

Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G) of the RH-IRR is indeed
ultra vires. It contravenes Section 4(a) of the RH Law and should, therefore, be declared invalid.
There is danger that the insertion of the qualifier "primarily" will pave the way for the approval of
contraceptives which may harm or destroy the life of the unborn from conception/fertilization in
violation of Article II, Section 12 of the Constitution. With such qualification in the RH-IRR, it appears
to insinuate that a contraceptive will only be considered as an "abortifacient" if its sole known effect
is abortion or, as pertinent here, the prevention of the implantation of the fertilized ovum.

For the same reason, this definition of "contraceptive" would permit the approval of contraceptives
which are actually abortifacients because of their fail-safe mechanism.174

Also, as discussed earlier, Section 9 calls for the certification by the FDA that these contraceptives
cannot act as abortive. With this, together with the definition of an abortifacient under Section 4 (a) of
the RH Law and its declared policy against abortion, the undeniable conclusion is that
contraceptives to be included in the PNDFS and the EDL will not only be those contraceptives that
do not have the primary action of causing abortion or the destruction of a fetus inside the mother's
womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb, but
also those that do not have the secondary action of acting the same way.

Indeed, consistent with the constitutional policy prohibiting abortion, and in line with the principle that
laws should be construed in a manner that its constitutionality is sustained, the RH Law and its
implementing rules must be consistent with each other in prohibiting abortion. Thus, the word "
primarily" in Section 3.0l(a) and G) of the RH-IRR should be declared void. To uphold the validity of
Section 3.0l(a) and G) of the RH-IRR and prohibit only those contraceptives that have the primary
effect of being an abortive would effectively "open the floodgates to the approval of contraceptives
which may harm or destroy the life of the unborn from conception/fertilization in violation of Article II,
Section 12 of the Constitution."175

To repeat and emphasize, in all cases, the "principle of no abortion" embodied in the constitutional
protection of life must be upheld.

2-The Right to Health

The petitioners claim that the RH Law violates the right to health because it requires the inclusion of
hormonal contraceptives, intrauterine devices, injectables and family products and supplies in the
National Drug Formulary and the inclusion of the same in the regular purchase of essential
medicines and supplies of all national hospitals.176Citing various studies on the matter, the petitioners
posit that the risk of developing breast and cervical cancer is greatly increased in women who use
oral contraceptives as compared to women who never use them. They point out that the risk is
decreased when the use of contraceptives is discontinued. Further, it is contended that the use of
combined oral contraceptive pills is associated with a threefold increased risk of venous
thromboembolism, a twofold increased risk of ischematic stroke, and an indeterminate effect on risk
of myocardial infarction.177 Given the definition of "reproductive health" and "sexual health" under
Sections 4(p)178 and (w)179 of the RH Law, the petitioners assert that the assailed legislation only
seeks to ensure that women have pleasurable and satisfying sex lives.180

The OSG, however, points out that Section 15, Article II of the Constitution is not self-executory, it
being a mere statement of the administration's principle and policy. Even if it were self-executory, the
OSG posits that medical authorities refute the claim that contraceptive pose a danger to the health of
women.181

The Court's Position

A component to the right to life is the constitutional right to health. In this regard, the Constitution is
replete with provisions protecting and promoting the right to health. Section 15, Article II of the
Constitution provides:

Section 15. The State shall protect and promote the right to health of the people and instill health
consciousness among them.

A portion of Article XIII also specifically provides for the States' duty to provide for the health of the
people, viz:

HEALTH

Section 11. The State shall adopt an integrated and comprehensive approach to health development
which shall endeavor to make essential goods, health and other social services available to all the
people at affordable cost. There shall be priority for the needs of the underprivileged, sick, elderly,
disabled, women, and children. The State shall endeavor to provide free medical care to paupers.

Section 12. The State shall establish and maintain an effective food and drug regulatory system and
undertake appropriate health, manpower development, and research, responsive to the country's
health needs and problems.

Section 13. The State shall establish a special agency for disabled person for their rehabilitation,
self-development, and self-reliance, and their integration into the mainstream of society.

Finally, Section 9, Article XVI provides:

Section 9. The State shall protect consumers from trade malpractices and from substandard or
hazardous products.

Contrary to the respondent's notion, however, these provisions are self-executing. Unless the
provisions clearly express the contrary, the provisions of the Constitution should be considered self-
executory. There is no need for legislation to implement these self-executing provisions.182 In Manila
Prince Hotel v. GSIS,183 it was stated:

x x x Hence, unless it is expressly provided that a legislative act is necessary to enforce a

constitutional mandate, the presumption now is that all provisions of the constitution are self-
executing. If the constitutional provisions are treated as requiring legislation instead of self-
executing, the legislature would have the power to ignore and practically nullify the mandate of the
fundamental law. This can be cataclysmic. That is why the prevailing view is, as it has always been,
that

... in case of doubt, the Constitution should be considered self-executing rather than non-self-
executing. . . . Unless the contrary is clearly intended, the provisions of the Constitution should be
considered self-executing, as a contrary rule would give the legislature discretion to determine when,
or whether, they shall be effective. These provisions would be subordinated to the will of the
lawmaking body, which could make them entirely meaningless by simply refusing to pass the
needed implementing statute. (Emphases supplied)

This notwithstanding, it bears mentioning that the petitioners, particularly ALFI, do not question
contraception and contraceptives per se.184 In fact, ALFI prays that the status quo - under R.A. No.
5921 and R.A. No. 4729, the sale and distribution of contraceptives are not prohibited when they are
dispensed by a prescription of a duly licensed by a physician - be maintained.185

The legislative intent in the enactment of the RH Law in this regard is to leave intact the provisions of
R.A. No. 4729. There is no intention at all to do away with it. It is still a good law and its requirements
are still in to be complied with. Thus, the Court agrees with the observation of respondent Lagman
that the effectivity of the RH Law will not lead to the unmitigated proliferation of contraceptives since
the sale, distribution and dispensation of contraceptive drugs and devices will still require the
prescription of a licensed physician. With R.A. No. 4729 in place, there exists adequate safeguards
to ensure the public that only contraceptives that are safe are made available to the public. As aptly
explained by respondent Lagman:

D. Contraceptives cannot be
dispensed and used without
prescription
108. As an added protection to voluntary users of contraceptives, the same cannot be dispensed
and used without prescription.

109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation, and/ or Distribution of
Contraceptive Drugs and Devices" and Republic Act No. 5921 or "An Act Regulating the Practice of
Pharmacy and Setting Standards of Pharmaceutical Education in the Philippines and for Other
Purposes" are not repealed by the RH Law and the provisions of said Acts are not inconsistent with
the RH Law.

110. Consequently, the sale, distribution and dispensation of contraceptive drugs and devices are
particularly governed by RA No. 4729 which provides in full:

"Section 1. It shall be unlawful for any person, partnership, or corporation, to sell, dispense or
otherwise distribute whether for or without consideration, any contraceptive drug or device, unless
such sale, dispensation or distribution is by a duly licensed drug store or pharmaceutical company
and with the prescription of a qualified medical practitioner.

"Sec. 2 . For the purpose of this Act:

"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion which is used
exclusively for the purpose of preventing fertilization of the female ovum: and

"(b) "Contraceptive device" is any instrument, device, material, or agent introduced into the
female reproductive system for the primary purpose of preventing conception.

"Sec. 3 Any person, partnership, or corporation, violating the provisions of this Act shall be punished
with a fine of not more than five hundred pesos or an imprisonment of not less than six months or
more than one year or both in the discretion of the Court.

"This Act shall take effect upon its approval.

"Approved: June 18, 1966"

111. Of the same import, but in a general manner, Section 25 of RA No. 5921 provides:

"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No medicine, pharmaceutical, or
drug of whatever nature and kind or device shall be compounded, dispensed, sold or resold, or
otherwise be made available to the consuming public except through a prescription drugstore or
hospital pharmacy, duly established in accordance with the provisions of this Act.

112. With all of the foregoing safeguards, as provided for in the RH Law and other relevant statutes,
the pretension of the petitioners that the RH Law will lead to the unmitigated proliferation of
contraceptives, whether harmful or not, is completely unwarranted and baseless.186 [Emphases in the
Original. Underlining supplied.]

In Re: Section 10 of the RH Law:

The foregoing safeguards should be read in connection with Section 10 of the RH Law which
provides:
SEC. 10. Procurement and Distribution of Family Planning Supplies. - The DOH shall procure,
distribute to LGUs and monitor the usage of family planning supplies for the whole country. The
DOH shall coordinate with all appropriate local government bodies to plan and implement this
procurement and distribution program. The supply and budget allotments shall be based on, among
others, the current levels and projections of the following:

(a) Number of women of reproductive age and couples who want to space or limit their
children;

(b) Contraceptive prevalence rate, by type of method used; and

(c) Cost of family planning supplies.

Provided, That LGUs may implement its own procurement, distribution and monitoring program
consistent with the overall provisions of this Act and the guidelines of the DOH.

Thus, in the distribution by the DOH of contraceptive drugs and devices, it must consider the
provisions of R.A. No. 4729, which is still in effect, and ensure that the contraceptives that it will
procure shall be from a duly licensed drug store or pharmaceutical company and that the actual
dispensation of these contraceptive drugs and devices will done following a prescription of a
qualified medical practitioner. The distribution of contraceptive drugs and devices must not be
indiscriminately done. The public health must be protected by all possible means. As pointed out by
Justice De Castro, a heavy responsibility and burden are assumed by the government in supplying
contraceptive drugs and devices, for it may be held accountable for any injury, illness or loss of life
resulting from or incidental to their use.187

At any rate, it bears pointing out that not a single contraceptive has yet been submitted to the FDA
pursuant to the RH Law. It behooves the Court to await its determination which drugs or devices are
declared by the FDA as safe, it being the agency tasked to ensure that food and medicines available
to the public are safe for public consumption. Consequently, the Court finds that, at this point, the
attack on the RH Law on this ground is premature. Indeed, the various kinds of contraceptives must
first be measured up to the constitutional yardstick as expounded herein, to be determined as the
case presents itself.

At this point, the Court is of the strong view that Congress cannot legislate that hormonal
contraceptives and intra-uterine devices are safe and non-abortifacient. The first sentence of Section
9 that ordains their inclusion by the National Drug Formulary in the EDL by using the mandatory
"shall" is to be construed as operative only after they have been tested, evaluated, and approved by
the FDA. The FDA, not Congress, has the expertise to determine whether a particular hormonal
contraceptive or intrauterine device is safe and non-abortifacient. The provision of the third sentence
concerning the requirements for the inclusion or removal of a particular family planning supply from
the EDL supports this construction.

Stated differently, the provision in Section 9 covering the inclusion of hormonal contraceptives, intra-
uterine devices, injectables, and other safe, legal, non-abortifacient and effective family planning
products and supplies by the National Drug Formulary in the EDL is not mandatory. There must first
be a determination by the FDA that they are in fact safe, legal, non-abortifacient and effective family
planning products and supplies. There can be no predetermination by Congress that the gamut of
contraceptives are "safe, legal, non-abortifacient and effective" without the proper scientific
examination.
3 -Freedom of Religion
and the Right to Free Speech

Position of the Petitioners:

1. On Contraception

While contraceptives and procedures like vasectomy and tubal ligation are not covered by the
constitutional proscription, there are those who, because of their religious education and
background, sincerely believe that contraceptives, whether abortifacient or not, are evil. Some of
these are medical practitioners who essentially claim that their beliefs prohibit not only the use of
contraceptives but also the willing participation and cooperation in all things dealing with
contraceptive use. Petitioner PAX explained that "contraception is gravely opposed to marital
chastity, it is contrary to the good of the transmission of life, and to the reciprocal self-giving of the
spouses; it harms true love and denies the sovereign rule of God in the transmission of Human
life."188

The petitioners question the State-sponsored procurement of contraceptives, arguing that the
expenditure of their taxes on contraceptives violates the guarantee of religious freedom since
contraceptives contravene their religious beliefs.189

2. On Religious Accommodation and

The Duty to Refer

Petitioners Imbong and Luat note that while the RH Law attempts to address religious sentiments by
making provisions for a conscientious objector, the constitutional guarantee is nonetheless violated
because the law also imposes upon the conscientious objector the duty to refer the patient seeking
reproductive health services to another medical practitioner who would be able to provide for the
patient's needs. For the petitioners, this amounts to requiring the conscientious objector to cooperate
with the very thing he refuses to do without violating his/her religious beliefs.190

They further argue that even if the conscientious objector's duty to refer is recognized, the
recognition is unduly limited, because although it allows a conscientious objector in Section 23 (a)(3)
the option to refer a patient seeking reproductive health services and information - no escape is
afforded the conscientious objector in Section 23 (a)(l) and (2), i.e. against a patient seeking
reproductive health procedures. They claim that the right of other individuals to conscientiously
object, such as: a) those working in public health facilities referred to in Section 7; b) public officers
involved in the implementation of the law referred to in Section 23(b ); and c) teachers in public
schools referred to in Section 14 of the RH Law, are also not recognize.191

Petitioner Echavez and the other medical practitioners meanwhile, contend that the requirement to
refer the matter to another health care service provider is still considered a compulsion on those
objecting healthcare service providers. They add that compelling them to do the act against their will
violates the Doctrine of Benevolent Neutrality. Sections 9, 14 and 1 7 of the law are too secular that
they tend to disregard the religion of Filipinos. Authorizing the use of contraceptives with abortive
effects, mandatory sex education, mandatory pro-bono reproductive health services to indigents
encroach upon the religious freedom of those upon whom they are required.192

Petitioner CFC also argues that the requirement for a conscientious objector to refer the person
seeking reproductive health care services to another provider infringes on one's freedom of religion
as it forces the objector to become an unwilling participant in the commission of a serious sin under
Catholic teachings. While the right to act on one's belief may be regulated by the State, the acts
prohibited by the RH Law are passive acts which produce neither harm nor injury to the public.193

Petitioner CFC adds that the RH Law does not show compelling state interest to justify regulation of
religious freedom because it mentions no emergency, risk or threat that endangers state interests. It
does not explain how the rights of the people (to equality, non-discrimination of rights, sustainable
human development, health, education, information, choice and to make decisions according to
religious convictions, ethics, cultural beliefs and the demands of responsible parenthood) are being
threatened or are not being met as to justify the impairment of religious freedom.194

Finally, the petitioners also question Section 15 of the RH Law requiring would-be couples to attend
family planning and responsible parenthood seminars and to obtain a certificate of compliance. They
claim that the provision forces individuals to participate in the implementation of the RH Law even if
it contravenes their religious beliefs.195 As the assailed law dangles the threat of penalty of fine and/or
imprisonment in case of non-compliance with its provisions, the petitioners claim that the RH Law
forcing them to provide, support and facilitate access and information to contraception against their
beliefs must be struck down as it runs afoul to the constitutional guarantee of religious freedom.

The Respondents' Positions

The respondents, on the other hand, contend that the RH Law does not provide that a specific mode
or type of contraceptives be used, be it natural or artificial. It neither imposes nor sanctions any
religion or belief.196 They point out that the RH Law only seeks to serve the public interest by
providing accessible, effective and quality reproductive health services to ensure maternal and child
health, in line with the State's duty to bring to reality the social justice health guarantees of the
Constitution,197 and that what the law only prohibits are those acts or practices, which deprive others
of their right to reproductive health.198 They assert that the assailed law only seeks to guarantee
informed choice, which is an assurance that no one will be compelled to violate his religion against
his free will.199

The respondents add that by asserting that only natural family planning should be allowed, the
petitioners are effectively going against the constitutional right to religious freedom, the same right
they invoked to assail the constitutionality of the RH Law.200 In other words, by seeking the
declaration that the RH Law is unconstitutional, the petitioners are asking that the Court recognize
only the Catholic Church's sanctioned natural family planning methods and impose this on the entire
citizenry.201

With respect to the duty to refer, the respondents insist that the same does not violate the
constitutional guarantee of religious freedom, it being a carefully balanced compromise between the
interests of the religious objector, on one hand, who is allowed to keep silent but is required to refer -
and that of the citizen who needs access to information and who has the right to expect that the
health care professional in front of her will act professionally. For the respondents, the concession
given by the State under Section 7 and 23(a)(3) is sufficient accommodation to the right to freely
exercise one's religion without unnecessarily infringing on the rights of others.202

Whatever burden is placed on the petitioner's religious freedom is minimal as the duty to refer is
limited in duration, location and impact.203

Regarding mandatory family planning seminars under Section 15 , the respondents claim that it is a
reasonable regulation providing an opportunity for would-be couples to have access to information
regarding parenthood, family planning, breastfeeding and infant nutrition. It is argued that those who
object to any information received on account of their attendance in the required seminars are not
compelled to accept information given to them. They are completely free to reject any information
they do not agree with and retain the freedom to decide on matters of family life without intervention
of the State.204

For their part, respondents De Venecia et al., dispute the notion that natural family planning is the
only method acceptable to Catholics and the Catholic hierarchy. Citing various studies and surveys
on the matter, they highlight the changing stand of the Catholic Church on contraception throughout
the years and note the general acceptance of the benefits of contraceptives by its followers in
planning their families.

The Church and The State

At the outset, it cannot be denied that we all live in a heterogeneous society. It is made up of people
of diverse ethnic, cultural and religious beliefs and backgrounds. History has shown us that our
government, in law and in practice, has allowed these various religious, cultural, social and racial
groups to thrive in a single society together. It has embraced minority groups and is tolerant towards
all - the religious people of different sects and the non-believers. The undisputed fact is that our
people generally believe in a deity, whatever they conceived Him to be, and to whom they call for
guidance and enlightenment in crafting our fundamental law. Thus, the preamble of the present
Constitution reads:

We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and
humane society, and establish a Government that shall embody our ideals and aspirations, promote
the common good, conserve and develop our patrimony, and secure to ourselves and our posterity,
the blessings of independence and democracy under the rule of law and a regime of truth, justice,
freedom, love, equality, and peace, do ordain and promulgate this Constitution.

The Filipino people in "imploring the aid of Almighty God " manifested their spirituality innate in our
nature and consciousness as a people, shaped by tradition and historical experience. As this is
embodied in the preamble, it means that the State recognizes with respect the influence of religion in
so far as it instills into the mind the purest principles of morality.205 Moreover, in recognition of the
contributions of religion to society, the 1935, 1973 and 1987 constitutions contain benevolent and
accommodating provisions towards religions such as tax exemption of church property, salary of
religious officers in government institutions, and optional religious instructions in public schools.

The Framers, however, felt the need to put up a strong barrier so that the State would not encroach
into the affairs of the church, and vice-versa. The principle of separation of Church and State was,
thus, enshrined in Article II, Section 6 of the 1987 Constitution, viz:

Section 6. The separation of Church and State shall be inviolable.

Verily, the principle of separation of Church and State is based on mutual respect. Generally, the
1w phi1

State cannot meddle in the internal affairs of the church, much less question its faith and dogmas or
dictate upon it. It cannot favor one religion and discriminate against another. On the other hand, the
church cannot impose its beliefs and convictions on the State and the rest of the citizenry. It cannot
demand that the nation follow its beliefs, even if it sincerely believes that they are good for the
country.

Consistent with the principle that not any one religion should ever be preferred over another, the
Constitution in the above-cited provision utilizes the term "church" in its generic sense, which refers
to a temple, a mosque, an iglesia, or any other house of God which metaphorically symbolizes a
religious organization. Thus, the "Church" means the religious congregations collectively.
Balancing the benefits that religion affords and the need to provide an ample barrier to protect the
State from the pursuit of its secular objectives, the Constitution lays down the following mandate in
Article III, Section 5 and Article VI, Section 29 (2), of the 1987 Constitution:

Section. 5. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No religious test shall be required for the
exercise of civil or political rights.

Section 29.

xxx.

No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly,
for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of
religion, or of any priest, preacher, minister, other religious teacher, or dignitary as such, except
when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal
institution, or government orphanage or leprosarium.

In short, the constitutional assurance of religious freedom provides two guarantees: the
Establishment Clause and the Free Exercise Clause.

The establishment clause "principally prohibits the State from sponsoring any religion or favoring any
religion as against other religions. It mandates a strict neutrality in affairs among religious
groups."206 Essentially, it prohibits the establishment of a state religion and the use of public
resources for the support or prohibition of a religion.

On the other hand, the basis of the free exercise clause is the respect for the inviolability of the
human conscience.207 Under this part of religious freedom guarantee, the State is prohibited from
unduly interfering with the outside manifestations of one's belief and faith.208 Explaining the concept
of religious freedom, the Court, in Victoriano v. Elizalde Rope Workers Union209 wrote:

The constitutional provisions not only prohibits legislation for the support of any religious tenets or
the modes of worship of any sect, thus forestalling compulsion by law of the acceptance of any
creed or the practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but
also assures the free exercise of one's chosen form of religion within limits of utmost amplitude. It
has been said that the religion clauses of the Constitution are all designed to protect the broadest
possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his
beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the
common good. Any legislation whose effect or purpose is to impede the observance of one or all
religions, or to discriminate invidiously between the religions, is invalid, even though the burden may
be characterized as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct.
1970) But if the state regulates conduct by enacting, within its power, a general law which has for its
purpose and effect to advance the state's secular goals, the statute is valid despite its indirect
burden on religious observance, unless the state can accomplish its purpose without imposing such
burden. (Braunfeld v. Brown, 366 U.S. 599, 6 Led. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland,
366 U.S. 420, 444-5 and 449).

As expounded in Escritor,

The establishment and free exercise clauses were not designed to serve contradictory purposes.
They have a single goal-to promote freedom of individual religious beliefs and practices. In simplest
terms, the free exercise clause prohibits government from inhibiting religious beliefs with penalties
for religious beliefs and practice, while the establishment clause prohibits government from inhibiting
religious belief with rewards for religious beliefs and practices. In other words, the two religion
clauses were intended to deny government the power to use either the carrot or the stick to influence
individual religious beliefs and practices.210

Corollary to the guarantee of free exercise of one's religion is the principle that the guarantee of
religious freedom is comprised of two parts: the freedom to believe, and the freedom to act on one's
belief. The first part is absolute. As explained in Gerona v. Secretary of Education:211

The realm of belief and creed is infinite and limitless bounded only by one's imagination and thought.
So is the freedom of belief, including religious belief, limitless and without bounds. One may believe
in most anything, however strange, bizarre and unreasonable the same may appear to others, even
heretical when weighed in the scales of orthodoxy or doctrinal standards. But between the freedom
of belief and the exercise of said belief, there is quite a stretch of road to travel.212

The second part however, is limited and subject to the awesome power of the State and can be
enjoyed only with proper regard to the rights of others. It is "subject to regulation where the belief is
translated into external acts that affect the public welfare."213

Legislative Acts and the

Free Exercise Clause

Thus, in case of conflict between the free exercise clause and the State, the Court adheres to the
doctrine of benevolent neutrality. This has been clearly decided by the Court in Estrada v. Escritor,
(Escritor)214 where it was stated "that benevolent neutrality-accommodation, whether mandatory or
permissive, is the spirit, intent and framework underlying the Philippine Constitution."215 In the same
case, it was further explained that"

The benevolent neutrality theory believes that with respect to these governmental actions,
accommodation of religion may be allowed, not to promote the government's favored form of
religion, but to allow individuals and groups to exercise their religion without hindrance. "The purpose
of accommodation is to remove a burden on, or facilitate the exercise of, a person's or institution's
religion."216 "What is sought under the theory of accommodation is not a declaration of
unconstitutionality of a facially neutral law, but an exemption from its application or its 'burdensome
effect,' whether by the legislature or the courts."217

In ascertaining the limits of the exercise of religious freedom, the compelling state interest test is
proper.218Underlying the compelling state interest test is the notion that free exercise is a fundamental
right and that laws burdening it should be subject to strict scrutiny.219 In Escritor, it was written:

Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first
case on the Free Exercise Clause, American Bible Society, the Court mentioned the "clear and
present danger" test but did not employ it. Nevertheless, this test continued to be cited in
subsequent cases on religious liberty. The Gerona case then pronounced that the test of
permissibility of religious freedom is whether it violates the established institutions of society and
law. The Victoriano case mentioned the "immediate and grave danger" test as well as the doctrine
that a law of general applicability may burden religious exercise provided the law is the least
restrictive means to accomplish the goal of the law. The case also used, albeit inappropriately, the
"compelling state interest" test. After Victoriano , German went back to the Gerona rule. Ebralinag
then employed the "grave and immediate danger" test and overruled the Gerona test. The fairly
recent case of Iglesia ni Cristo went back to the " clear and present danger" test in the maiden case
of A merican Bible Society. Not surprisingly, all the cases which employed the "clear and present
danger" or "grave and immediate danger" test involved, in one form or another, religious speech as
this test is often used in cases on freedom of expression. On the other hand, the Gerona and
German cases set the rule that religious freedom will not prevail over established institutions of
society and law. Gerona, however, which was the authority cited by German has been overruled by
Ebralinag which employed the "grave and immediate danger" test . Victoriano was the only case that
employed the "compelling state interest" test, but as explained previously, the use of the test was
inappropriate to the facts of the case.

The case at bar does not involve speech as in A merican Bible Society, Ebralinag and Iglesia ni
Cristo where the "clear and present danger" and "grave and immediate danger" tests were
appropriate as speech has easily discernible or immediate effects. The Gerona and German
doctrine, aside from having been overruled, is not congruent with the benevolent neutrality
approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the present case involves
purely conduct arising from religious belief. The "compelling state interest" test is proper where
conduct is involved for the whole gamut of human conduct has different effects on the state's
interests: some effects may be immediate and short-term while others delayed and far-reaching. A
test that would protect the interests of the state in preventing a substantive evil, whether immediate
or delayed, is therefore necessary. However, not any interest of the state would suffice to prevail
over the right to religious freedom as this is a fundamental right that enjoys a preferred position in
the hierarchy of rights - "the most inalienable and sacred of all human rights", in the words of
Jefferson. This right is sacred for an invocation of the Free Exercise Clause is an appeal to a higher
sovereignty. The entire constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos implore the "aid of Almighty God in
order to build a just and humane society and establish a government." As held in Sherbert, only the
gravest abuses, endangering paramount interests can limit this fundamental right. A mere balancing
of interests which balances a right with just a colorable state interest is therefore not appropriate.
Instead, only a compelling interest of the state can prevail over the fundamental right to religious
liberty. The test requires the state to carry a heavy burden, a compelling one, for to do otherwise
would allow the state to batter religion, especially the less powerful ones until they are destroyed. In
determining which shall prevail between the state's interest and religious liberty, reasonableness
shall be the guide. The "compelling state interest" serves the purpose of revering religious liberty
while at the same time affording protection to the paramount interests of the state. This was the test
used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end, the
"compelling state interest" test, by upholding the paramount interests of the state, seeks to protect
the very state, without which, religious liberty will not be preserved. [Emphases in the original.
Underlining supplied.]

The Court's Position

In the case at bench, it is not within the province of the Court to determine whether the use of
contraceptives or one's participation in the support of modem reproductive health measures is moral
from a religious standpoint or whether the same is right or wrong according to one's dogma or belief.
For the Court has declared that matters dealing with "faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a church ... are unquestionably ecclesiastical matters which
are outside the province of the civil courts."220 The jurisdiction of the Court extends only to public and
secular morality. Whatever pronouncement the Court makes in the case at bench should be
understood only in this realm where it has authority. Stated otherwise, while the Court stands without
authority to rule on ecclesiastical matters, as vanguard of the Constitution, it does have authority to
determine whether the RH Law contravenes the guarantee of religious freedom.
At first blush, it appears that the RH Law recognizes and respects religion and religious beliefs and
convictions. It is replete with assurances the no one can be compelled to violate the tenets of his
religion or defy his religious convictions against his free will. Provisions in the RH Law respecting
religious freedom are the following:

1. The State recognizes and guarantees the human rights of all persons including their right to
equality and nondiscrimination of these rights, the right to sustainable human development, the right
to health which includes reproductive health, the right to education and information, and the right to
choose and make decisions for themselves in accordance with their religious convictions, ethics,
cultural beliefs, and the demands of responsible parenthood. [Section 2, Declaration of Policy]

2 . The State recognizes marriage as an inviolable social institution and the foundation of the family
which in turn is the foundation of the nation. Pursuant thereto, the State shall defend:

(a) The right of spouses to found a family in accordance with their religious convictions and the
demands of responsible parenthood." [Section 2, Declaration of Policy]

3. The State shall promote and provide information and access, without bias, to all methods of family
planning, including effective natural and modern methods which have been proven medically safe,
legal, non-abortifacient, and effective in accordance with scientific and evidence-based medical
research standards such as those registered and approved by the FDA for the poor and
marginalized as identified through the NHTS-PR and other government measures of identifying
marginalization: Provided, That the State shall also provide funding support to promote modern
natural methods of family planning, especially the Billings Ovulation Method, consistent with the
needs of acceptors and their religious convictions. [Section 3(e), Declaration of Policy]

4. The State shall promote programs that: (1) enable individuals and couples to have the number of
children they desire with due consideration to the health, particularly of women, and the resources
available and affordable to them and in accordance with existing laws, public morals and their
religious convictions. [Section 3CDJ

5. The State shall respect individuals' preferences and choice of family planning methods that are in
accordance with their religious convictions and cultural beliefs, taking into consideration the State's
obligations under various human rights instruments. [Section 3(h)]

6. Active participation by nongovernment organizations (NGOs) , women's and people's

organizations, civil society, faith-based organizations, the religious sector and communities is crucial
to ensure that reproductive health and population and development policies, plans, and programs
will address the priority needs of women, the poor, and the marginalized. [Section 3(i)]

7. Responsible parenthood refers to the will and ability of a parent to respond to the needs and
aspirations of the family and children. It is likewise a shared responsibility between parents to
determine and achieve the desired number of children, spacing and timing of their children according
to their own family life aspirations, taking into account psychological preparedness, health status,
sociocultural and economic concerns consistent with their religious convictions. [Section 4(v)]
(Emphases supplied)

While the Constitution prohibits abortion, laws were enacted allowing the use of contraceptives. To
some medical practitioners, however, the whole idea of using contraceptives is an anathema.
Consistent with the principle of benevolent neutrality, their beliefs should be respected.

The Establishment Clause

and Contraceptives

In the same breath that the establishment clause restricts what the government can do with religion,
it also limits what religious sects can or cannot do with the government. They can neither cause the
government to adopt their particular doctrines as policy for everyone, nor can they not cause the
government to restrict other groups. To do so, in simple terms, would cause the State to adhere to a
particular religion and, thus, establishing a state religion.

Consequently, the petitioners are misguided in their supposition that the State cannot enhance its
population control program through the RH Law simply because the promotion of contraceptive use
is contrary to their religious beliefs. Indeed, the State is not precluded to pursue its legitimate secular
objectives without being dictated upon by the policies of any one religion. One cannot refuse to pay
his taxes simply because it will cloud his conscience. The demarcation line between Church and
State demands that one render unto Caesar the things that are Caesar's and unto God the things
that are God's.221

The Free Exercise Clause and the Duty to Refer

While the RH Law, in espousing state policy to promote reproductive health manifestly respects
diverse religious beliefs in line with the Non-Establishment Clause, the same conclusion cannot be
reached with respect to Sections 7, 23 and 24 thereof. The said provisions commonly mandate that
a hospital or a medical practitioner to immediately refer a person seeking health care and services
under the law to another accessible healthcare provider despite their conscientious objections based
on religious or ethical beliefs.

In a situation where the free exercise of religion is allegedly burdened by government legislation or
practice, the compelling state interest test in line with the Court's espousal of the Doctrine of
Benevolent Neutrality in Escritor, finds application. In this case, the conscientious objector's claim to
religious freedom would warrant an exemption from obligations under the RH Law, unless the
government succeeds in demonstrating a more compelling state interest in the accomplishment of
an important secular objective. Necessarily so, the plea of conscientious objectors for exemption
from the RH Law deserves no less than strict scrutiny.

In applying the test, the first inquiry is whether a conscientious objector's right to religious freedom
has been burdened. As in Escritor, there is no doubt that an intense tug-of-war plagues a
conscientious objector. One side coaxes him into obedience to the law and the abandonment of his
religious beliefs, while the other entices him to a clean conscience yet under the pain of penalty. The
scenario is an illustration of the predicament of medical practitioners whose religious beliefs are
incongruent with what the RH Law promotes.

The Court is of the view that the obligation to refer imposed by the RH Law violates the religious
belief and conviction of a conscientious objector. Once the medical practitioner, against his will,
refers a patient seeking information on modem reproductive health products, services, procedures
and methods, his conscience is immediately burdened as he has been compelled to perform an act
against his beliefs. As Commissioner Joaquin A. Bernas (Commissioner Bernas) has written, "at the
basis of the free exercise clause is the respect for the inviolability of the human conscience.222

Though it has been said that the act of referral is an opt-out clause, it is, however, a false
compromise because it makes pro-life health providers complicit in the performance of an act that
they find morally repugnant or offensive. They cannot, in conscience, do indirectly what they cannot
do directly. One may not be the principal, but he is equally guilty if he abets the offensive act by
indirect participation.
Moreover, the guarantee of religious freedom is necessarily intertwined with the right to free speech,
it being an externalization of one's thought and conscience. This in turn includes the right to be
silent. With the constitutional guarantee of religious freedom follows the protection that should be
afforded to individuals in communicating their beliefs to others as well as the protection for simply
being silent. The Bill of Rights guarantees the liberty of the individual to utter what is in his mind and
the liberty not to utter what is not in his mind.223 While the RH Law seeks to provide freedom of choice
through informed consent, freedom of choice guarantees the liberty of the religious conscience and
prohibits any degree of compulsion or burden, whether direct or indirect, in the practice of one's
religion.224

In case of conflict between the religious beliefs and moral convictions of individuals, on one hand,
and the interest of the State, on the other, to provide access and information on reproductive health
products, services, procedures and methods to enable the people to determine the timing, number
and spacing of the birth of their children, the Court is of the strong view that the religious freedom of
health providers, whether public or private, should be accorded primacy. Accordingly, a
conscientious objector should be exempt from compliance with the mandates of the RH Law. If he
would be compelled to act contrary to his religious belief and conviction, it would be violative of "the
principle of non-coercion" enshrined in the constitutional right to free exercise of religion.

Interestingly, on April 24, 2013, Scotland's Inner House of the Court of Session, found in the case of
Doogan and Wood v. NHS Greater Glasgow and Clyde Health Board,225 that the midwives claiming to
be conscientious objectors under the provisions of Scotland's Abortion Act of 1967, could not be
required to delegate, supervise or support staff on their labor ward who were involved in
abortions.226 The Inner House stated "that if 'participation' were defined according to whether the
person was taking part 'directly' or ' indirectly' this would actually mean more complexity and
uncertainty."227

While the said case did not cover the act of referral, the applicable principle was the same - they
could not be forced to assist abortions if it would be against their conscience or will.

Institutional Health Providers

The same holds true with respect to non-maternity specialty hospitals and hospitals owned and
operated by a religious group and health care service providers. Considering that Section 24 of the
RH Law penalizes such institutions should they fail or refuse to comply with their duty to refer under
Section 7 and Section 23(a)(3), the Court deems that it must be struck down for being violative of the
freedom of religion. The same applies to Section 23(a)(l) and (a)(2) in relation to Section 24,
considering that in the dissemination of information regarding programs and services and in the
performance of reproductive health procedures, the religious freedom of health care service
providers should be respected.

In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the Executive Secretary228 it
was stressed:

Freedom of religion was accorded preferred status by the framers of our fundamental law. And this
Court has consistently affirmed this preferred status, well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others
and with the common good."10

The Court is not oblivious to the view that penalties provided by law endeavour to ensure
compliance. Without set consequences for either an active violation or mere inaction, a law tends to
be toothless and ineffectual. Nonetheless, when what is bartered for an effective implementation of a
law is a constitutionally-protected right the Court firmly chooses to stamp its disapproval. The
punishment of a healthcare service provider, who fails and/or refuses to refer a patient to another, or
who declines to perform reproductive health procedure on a patient because incompatible religious
beliefs, is a clear inhibition of a constitutional guarantee which the Court cannot allow.

The Implementing Rules and Regulation (RH-IRR)

The last paragraph of Section 5.24 of the RH-IRR reads:

Provided, That skilled health professional such as provincial, city or municipal health officers, chiefs
of hospital, head nurses, supervising midwives, among others, who by virtue of their office are
specifically charged with the duty to implement the provisions of the RPRH Act and these Rules,
cannot be considered as conscientious objectors.

This is discriminatory and violative of the equal protection clause. The conscientious objection
clause should be equally protective of the religious belief of public health officers. There is no
perceptible distinction why they should not be considered exempt from the mandates of the law. The
protection accorded to other conscientious objectors should equally apply to all medical practitioners
without distinction whether they belong to the public or private sector. After all, the freedom to
believe is intrinsic in every individual and the protective robe that guarantees its free exercise is not
taken off even if one acquires employment in the government.

It should be stressed that intellectual liberty occupies a place inferior to none in the hierarchy of
human values. The mind must be free to think what it wills, whether in the secular or religious
sphere, to give expression to its beliefs by oral discourse or through the media and, thus, seek other
candid views in occasions or gatherings or in more permanent aggrupation. Embraced in such
concept then are freedom of religion, freedom of speech, of the press, assembly and petition, and
freedom of association.229

The discriminatory provision is void not only because no such exception is stated in the RH Law
itself but also because it is violative of the equal protection clause in the Constitution. Quoting
respondent Lagman, if there is any conflict between the RH-IRR and the RH Law, the law must
prevail.

Justice Mendoza:

I'll go to another point. The RH law .. .in your Comment- in-Intervention on page 52, you mentioned
RH Law is replete with provisions in upholding the freedom of religion and respecting religious
convictions. Earlier, you affirmed this with qualifications. Now, you have read, I presumed you have
read the IRR-Implementing Rules and Regulations of the RH Bill?

Congressman Lagman:

Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have not thoroughly dissected
the nuances of the provisions.

Justice Mendoza:

I will read to you one provision. It's Section 5.24. This I cannot find in the RH Law. But in the IRR it
says: " .... skilled health professionals such as provincial, city or municipal health officers, chief of
hospitals, head nurses, supervising midwives, among others, who by virtue of their office are
specifically charged with the duty to implement the provisions of the RPRH Act and these Rules,
cannot be considered as conscientious objectors." Do you agree with this?

Congressman Lagman:

I will have to go over again the provisions, Your Honor.

Justice Mendoza:

In other words, public health officers in contrast to the private practitioners who can be conscientious
objectors, skilled health professionals cannot be considered conscientious objectors. Do you agree
with this? Is this not against the constitutional right to the religious belief?

Congressman Lagman:

Your Honor, if there is any conflict between the IRR and the law, the law must prevail.230

Compelling State Interest

The foregoing discussion then begets the question on whether the respondents, in defense of the
subject provisions, were able to: 1] demonstrate a more compelling state interest to restrain
conscientious objectors in their choice of services to render; and 2] discharge the burden of proof
that the obligatory character of the law is the least intrusive means to achieve the objectives of the
law.

Unfortunately, a deep scrutiny of the respondents' submissions proved to be in vain. The OSG was
curiously silent in the establishment of a more compelling state interest that would rationalize the
curbing of a conscientious objector's right not to adhere to an action contrary to his religious
convictions. During the oral arguments, the OSG maintained the same silence and evasion. The
Transcripts of the Stenographic Notes disclose the following:

Justice De Castro:

Let's go back to the duty of the conscientious objector to refer. ..

Senior State Solicitor Hilbay:

Yes, Justice.

Justice De Castro:

... which you are discussing awhile ago with Justice Abad. What is the compelling State interest in
imposing this duty to refer to a conscientious objector which refuses to do so because of his religious
belief?

Senior State Solicitor Hilbay:

Ahh, Your Honor, ..

Justice De Castro:

What is the compelling State interest to impose this burden?

Senior State Solicitor Hilbay:

In the first place, Your Honor, I don't believe that the standard is a compelling State interest, this is
an ordinary health legislation involving professionals. This is not a free speech matter or a pure free
exercise matter. This is a regulation by the State of the relationship between medical doctors and
their patients.231

Resultantly, the Court finds no compelling state interest which would limit the free exercise clause of
the conscientious objectors, however few in number. Only the prevention of an immediate and grave
danger to the security and welfare of the community can justify the infringement of religious freedom.
If the government fails to show the seriousness and immediacy of the threat, State intrusion is
constitutionally unacceptable.232

Freedom of religion means more than just the freedom to believe. It also means the freedom to act
or not to act according to what one believes. And this freedom is violated when one is compelled to
act against one's belief or is prevented from acting according to one's belief.233

Apparently, in these cases, there is no immediate danger to the life or health of an individual in the
perceived scenario of the subject provisions. After all, a couple who plans the timing, number and
spacing of the birth of their children refers to a future event that is contingent on whether or not the
mother decides to adopt or use the information, product, method or supply given to her or whether
she even decides to become pregnant at all. On the other hand, the burden placed upon those who
object to contraceptive use is immediate and occurs the moment a patient seeks consultation on
reproductive health matters.

Moreover, granting that a compelling interest exists to justify the infringement of the conscientious
objector's religious freedom, the respondents have failed to demonstrate "the gravest abuses,
endangering paramount interests" which could limit or override a person's fundamental right to
religious freedom. Also, the respondents have not presented any government effort exerted to show
that the means it takes to achieve its legitimate state objective is the least intrusive means.234 Other
than the assertion that the act of referring would only be momentary, considering that the act of
referral by a conscientious objector is the very action being contested as violative of religious
freedom, it behooves the respondents to demonstrate that no other means can be undertaken by the
State to achieve its objective without violating the rights of the conscientious objector. The health
concerns of women may still be addressed by other practitioners who may perform reproductive
health-related procedures with open willingness and motivation. Suffice it to say, a person who is
forced to perform an act in utter reluctance deserves the protection of the Court as the last vanguard
of constitutional freedoms.

At any rate, there are other secular steps already taken by the Legislature to ensure that the right to
health is protected. Considering other legislations as they stand now, R.A . No. 4 729 or the
Contraceptive Act, R.A. No. 6365 or "The Population Act of the Philippines" and R.A. No. 9710,
otherwise known as "The Magna Carta of Women," amply cater to the needs of women in relation to
health services and programs. The pertinent provision of Magna Carta on comprehensive health
services and programs for women, in fact, reads:

Section 17. Women's Right to Health. - (a) Comprehensive Health Services. - The State shall, at all
times, provide for a comprehensive, culture-sensitive, and gender-responsive health services and
programs covering all stages of a woman's life cycle and which addresses the major causes of
women's mortality and morbidity: Provided, That in the provision for comprehensive health services,
due respect shall be accorded to women's religious convictions, the rights of the spouses to found a
family in accordance with their religious convictions, and the demands of responsible parenthood,
and the right of women to protection from hazardous drugs, devices, interventions, and substances.

Access to the following services shall be ensured:

(1) Maternal care to include pre- and post-natal services to address pregnancy and
infant health and nutrition;

(2) Promotion of breastfeeding;

(3) Responsible, ethical, legal, safe, and effective methods of family planning;

(4) Family and State collaboration in youth sexuality education and health services
without prejudice to the primary right and duty of parents to educate their children;

(5) Prevention and management of reproductive tract infections, including sexually

transmitted diseases, HIV, and AIDS;

(6) Prevention and management of reproductive tract cancers like breast and cervical
cancers, and other gynecological conditions and disorders;

(7) Prevention of abortion and management of pregnancy-related complications;

(8) In cases of violence against women and children, women and children victims
and survivors shall be provided with comprehensive health services that include
psychosocial, therapeutic, medical, and legal interventions and assistance towards
healing, recovery, and empowerment;

(9) Prevention and management of infertility and sexual dysfunction pursuant to

ethical norms and medical standards;

(10) Care of the elderly women beyond their child-bearing years; and

(11) Management, treatment, and intervention of mental health problems of women

and girls. In addition, healthy lifestyle activities are encouraged and promoted
through programs and projects as strategies in the prevention of diseases.

(b) Comprehensive Health Information and Education. - The State shall provide women in all sectors
with appropriate, timely, complete, and accurate information and education on all the above-stated
aspects of women's health in government education and training programs, with due regard to the
following:

(1) The natural and primary right and duty of parents in the rearing of the youth and
the development of moral character and the right of children to be brought up in an
atmosphere of morality and rectitude for the enrichment and strengthening of
character;

(2) The formation of a person's sexuality that affirms human dignity; and
 (3) Ethical, legal, safe, and effective family planning methods including fertility
awareness.

As an afterthought, Asst. Solicitor General Hilbay eventually replied that the compelling state interest
was "Fifteen maternal deaths per day, hundreds of thousands of unintended pregnancies, lives
changed, x x x."235 He, however, failed to substantiate this point by concrete facts and figures from
reputable sources.

The undisputed fact, however, is that the World Health Organization reported that the Filipino
maternal mortality rate dropped to 48 percent from 1990 to 2008, 236 although there was still no RH
Law at that time. Despite such revelation, the proponents still insist that such number of maternal
deaths constitute a compelling state interest.

Granting that there are still deficiencies and flaws in the delivery of social healthcare programs for
Filipino women, they could not be solved by a measure that puts an unwarrantable stranglehold on
religious beliefs in exchange for blind conformity.

Exception: Life Threatening Cases

All this notwithstanding, the Court properly recognizes a valid exception set forth in the law. While
generally healthcare service providers cannot be forced to render reproductive health care
procedures if doing it would contravene their religious beliefs, an exception must be made in life-
threatening cases that require the performance of emergency procedures. In these situations, the
right to life of the mother should be given preference, considering that a referral by a medical
practitioner would amount to a denial of service, resulting to unnecessarily placing the life of a
mother in grave danger. Thus, during the oral arguments, Atty. Liban, representing CFC, manifested:
"the forced referral clause that we are objecting on grounds of violation of freedom of religion does
not contemplate an emergency."237

In a conflict situation between the life of the mother and the life of a child, the doctor is morally
obliged always to try to save both lives. If, however, it is impossible, the resulting death to one
should not be deliberate. Atty. Noche explained:

Principle of Double-Effect. - May we please remind the principal author of the RH Bill in the House of
Representatives of the principle of double-effect wherein intentional harm on the life of either the
mother of the child is never justified to bring about a "good" effect. In a conflict situation between the
life of the child and the life of the mother, the doctor is morally obliged always to try to save both
lives. However, he can act in favor of one (not necessarily the mother) when it is medically
impossible to save both, provided that no direct harm is intended to the other. If the above principles
are observed, the loss of the child's life or the mother's life is not intentional and, therefore,
unavoidable. Hence, the doctor would not be guilty of abortion or murder. The mother is never pitted
against the child because both their lives are equally valuable.238

Accordingly, if it is necessary to save the life of a mother, procedures endangering the life of the
child may be resorted to even if is against the religious sentiments of the medical practitioner. As
quoted above, whatever burden imposed upon a medical practitioner in this case would have been
more than justified considering the life he would be able to save.

Family Planning Seminars

Anent the requirement imposed under Section 15239 as a condition for the issuance of a marriage
license, the Court finds the same to be a reasonable exercise of police power by the government. A
cursory reading of the assailed provision bares that the religious freedom of the petitioners is not at
all violated. All the law requires is for would-be spouses to attend a seminar on parenthood, family
planning breastfeeding and infant nutrition. It does not even mandate the type of family planning
methods to be included in the seminar, whether they be natural or artificial. As correctly noted by the
OSG, those who receive any information during their attendance in the required seminars are not
compelled to accept the information given to them, are completely free to reject the information they
find unacceptable, and retain the freedom to decide on matters of family life without the intervention
of the State.

4-The Family and the Right to Privacy

Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof violates the provisions of
the Constitution by intruding into marital privacy and autonomy. It argues that it cultivates disunity
and fosters animosity in the family rather than promote its solidarity and total development.240

The Court cannot but agree.

The 1987 Constitution is replete with provisions strengthening the family as it is the basic social
institution. In fact, one article, Article XV, is devoted entirely to the family.

ARTICLE XV
THE FAMILY

Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it
shall strengthen its solidarity and actively promote its total development.

Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be
protected by the State.

Section 3. The State shall defend:

The right of spouses to found a family in accordance with their religious convictions and the
demands of responsible parenthood;

The right of children to assistance, including proper care and nutrition, and special protection from all
forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development;

The right of the family to a family living wage and income; and

The right of families or family assoc1at1ons to participate in the planning and implementation of
policies and programs that affect them.

In this case, the RH Law, in its not-so-hidden desire to control population growth, contains provisions
which tend to wreck the family as a solid social institution. It bars the husband and/or the father from
participating in the decision making process regarding their common future progeny. It likewise
deprives the parents of their authority over their minor daughter simply because she is already a
parent or had suffered a miscarriage.

The Family and Spousal Consent

Section 23(a) (2) (i) of the RH Law states:

The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall: ...

(2) refuse to perform legal and medically-safe reproductive health procedures on any person of legal
age on the ground of lack of consent or authorization of the following persons in the following
instances:

(i) Spousal consent in case of married persons: provided, That in case of disagreement, the decision
of the one undergoing the procedures shall prevail. [Emphasis supplied]

The above provision refers to reproductive health procedures like tubal litigation and vasectomy
which, by their very nature, should require mutual consent and decision between the husband and
the wife as they affect issues intimately related to the founding of a family. Section 3, Art. XV of the
Constitution espouses that the State shall defend the "right of the spouses to found a family." One
person cannot found a family. The right, therefore, is shared by both spouses. In the same Section
3, their right "to participate in the planning and implementation of policies and programs that affect
them " is equally recognized.

The RH Law cannot be allowed to infringe upon this mutual decision-making. By giving absolute
authority to the spouse who would undergo a procedure, and barring the other spouse from
participating in the decision would drive a wedge between the husband and wife, possibly result in
bitter animosity, and endanger the marriage and the family, all for the sake of reducing the
population. This would be a marked departure from the policy of the State to protect marriage as an
inviolable social institution.241

Decision-making involving a reproductive health procedure is a private matter which belongs to the
couple, not just one of them. Any decision they would reach would affect their future as a family
because the size of the family or the number of their children significantly matters. The decision
whether or not to undergo the procedure belongs exclusively to, and shared by, both spouses as
one cohesive unit as they chart their own destiny. It is a constitutionally guaranteed private right.
Unless it prejudices the State, which has not shown any compelling interest, the State should see to
it that they chart their destiny together as one family.

As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No. 9710, otherwise known as
the "Magna Carta for Women," provides that women shall have equal rights in all matters relating to
marriage and family relations, including the joint decision on the number and spacing of their
children. Indeed, responsible parenthood, as Section 3(v) of the RH Law states, is a shared
responsibility between parents. Section 23(a)(2)(i) of the RH Law should not be allowed to betray the
constitutional mandate to protect and strengthen the family by giving to only one spouse the
absolute authority to decide whether to undergo reproductive health procedure.242

The right to chart their own destiny together falls within the protected zone of marital privacy and
such state intervention would encroach into the zones of spousal privacy guaranteed by the
Constitution. In our jurisdiction, the right to privacy was first recognized in Marje v. Mutuc,243 where
the Court, speaking through Chief Justice Fernando, held that "the right to privacy as such is
accorded recognition independently of its identification with liberty; in itself, it is fully deserving of
constitutional protection."244 Marje adopted the ruling of the US Supreme Court in Griswold v.
Connecticut,245 where Justice William O. Douglas wrote:

We deal with a right of privacy older than the Bill of Rights -older than our political parties, older than
our school system. Marriage is a coming together for better or for worse, hopefully enduring, and
intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a
harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an
association for as noble a purpose as any involved in our prior decisions.

Ironically, Griswold invalidated a Connecticut statute which made the use of contraceptives a
criminal offense on the ground of its amounting to an unconstitutional invasion of the right to privacy
of married persons. Nevertheless, it recognized the zone of privacy rightfully enjoyed by couples.
Justice Douglas in Grisworld wrote that "specific guarantees in the Bill of Rights have penumbras,
formed by emanations from those guarantees that help give them life and substance. Various
guarantees create zones of privacy."246

At any rate, in case of conflict between the couple, the courts will decide.

The Family and Parental Consent

Equally deplorable is the debarment of parental consent in cases where the minor, who will be
undergoing a procedure, is already a parent or has had a miscarriage. Section 7 of the RH law
provides:

SEC. 7. Access to Family Planning. x x x.

No person shall be denied information and access to family planning services, whether natural or
artificial: Provided, That minors will not be allowed access to modern methods of family planning
without written consent from their parents or guardian/s except when the minor is already a parent or
has had a miscarriage.

There can be no other interpretation of this provision except that when a minor is already a parent or
has had a miscarriage, the parents are excluded from the decision making process of the minor with
regard to family planning. Even if she is not yet emancipated, the parental authority is already cut off
just because there is a need to tame population growth.

It is precisely in such situations when a minor parent needs the comfort, care, advice, and guidance
of her own parents. The State cannot replace her natural mother and father when it comes to
providing her needs and comfort. To say that their consent is no longer relevant is clearly anti-family.
It does not promote unity in the family. It is an affront to the constitutional mandate to protect and
strengthen the family as an inviolable social institution.

More alarmingly, it disregards and disobeys the constitutional mandate that "the natural and primary
right and duty of parents in the rearing of the youth for civic efficiency and the development of moral
character shall receive the support of the Government."247 In this regard, Commissioner Bernas
wrote:

The 1987 provision has added the adjective "primary" to modify the right of parents. It imports the
assertion that the right of parents is superior to that of the State.248 [Emphases supplied]

To insist on a rule that interferes with the right of parents to exercise parental control over their
minor-child or the right of the spouses to mutually decide on matters which very well affect the very
purpose of marriage, that is, the establishment of conjugal and family life, would result in the
violation of one's privacy with respect to his family. It would be dismissive of the unique and strongly-
held Filipino tradition of maintaining close family ties and violative of the recognition that the State
affords couples entering into the special contract of marriage to as one unit in forming the foundation
of the family and society.

The State cannot, without a compelling state interest, take over the role of parents in the care and
custody of a minor child, whether or not the latter is already a parent or has had a miscarriage. Only
a compelling state interest can justify a state substitution of their parental authority.

First Exception: Access to Information

Whether with respect to the minor referred to under the exception provided in the second paragraph
of Section 7 or with respect to the consenting spouse under Section 23(a)(2)(i), a distinction must be
made. There must be a differentiation between access to information about family planning services,
on one hand, and access to the reproductive health procedures and modern family planning
methods themselves, on the other. Insofar as access to information is concerned, the Court finds no
constitutional objection to the acquisition of information by the minor referred to under the exception
in the second paragraph of Section 7 that would enable her to take proper care of her own body and
that of her unborn child. After all, Section 12, Article II of the Constitution mandates the State to
protect both the life of the mother as that of the unborn child. Considering that information to enable
a person to make informed decisions is essential in the protection and maintenance of ones' health,
access to such information with respect to reproductive health must be allowed. In this situation, the
fear that parents might be deprived of their parental control is unfounded because they are not
prohibited to exercise parental guidance and control over their minor child and assist her in deciding
whether to accept or reject the information received.

Second Exception: Life Threatening Cases

As in the case of the conscientious objector, an exception must be made in life-threatening cases
that require the performance of emergency procedures. In such cases, the life of the minor who has
already suffered a miscarriage and that of the spouse should not be put at grave risk simply for lack
of consent. It should be emphasized that no person should be denied the appropriate medical care
urgently needed to preserve the primordial right, that is, the right to life.

In this connection, the second sentence of Section 23(a)(2)(ii)249 should be struck down. By
effectively limiting the requirement of parental consent to "only in elective surgical procedures," it
denies the parents their right of parental authority in cases where what is involved are "non-surgical
procedures." Save for the two exceptions discussed above, and in the case of an abused child as
provided in the first sentence of Section 23(a)(2)(ii), the parents should not be deprived of their
constitutional right of parental authority. To deny them of this right would be an affront to the
constitutional mandate to protect and strengthen the family.

5 - Academic Freedom

It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof, mandating the
teaching of Age-and Development-Appropriate Reproductive Health Education under threat of fine
and/or imprisonment violates the principle of academic freedom . According to the petitioners, these
provisions effectively force educational institutions to teach reproductive health education even if
they believe that the same is not suitable to be taught to their students.250 Citing various studies
conducted in the United States and statistical data gathered in the country, the petitioners aver that
the prevalence of contraceptives has led to an increase of out-of-wedlock births; divorce and
breakdown of families; the acceptance of abortion and euthanasia; the "feminization of poverty"; the
aging of society; and promotion of promiscuity among the youth.251
At this point, suffice it to state that any attack on the validity of Section 14 of the RH Law is
premature because the Department of Education, Culture and Sports has yet to formulate a
curriculum on age-appropriate reproductive health education. One can only speculate on the
content, manner and medium of instruction that will be used to educate the adolescents and whether
they will contradict the religious beliefs of the petitioners and validate their apprehensions. Thus,
considering the premature nature of this particular issue, the Court declines to rule on its
constitutionality or validity.

At any rate, Section 12, Article II of the 1987 Constitution provides that the natural and primary right
and duty of parents in the rearing of the youth for civic efficiency and development of moral
character shall receive the support of the Government. Like the 1973 Constitution and the 1935
Constitution, the 1987 Constitution affirms the State recognition of the invaluable role of parents in
preparing the youth to become productive members of society. Notably, it places more importance
on the role of parents in the development of their children by recognizing that said role shall be
"primary," that is, that the right of parents in upbringing the youth is superior to that of the State.252

It is also the inherent right of the State to act as parens patriae to aid parents in the moral
development of the youth. Indeed, the Constitution makes mention of the importance of developing
the youth and their important role in nation building.253 Considering that Section 14 provides not only
for the age-appropriate-reproductive health education, but also for values formation; the
development of knowledge and skills in self-protection against discrimination; sexual abuse and
violence against women and children and other forms of gender based violence and teen pregnancy;
physical, social and emotional changes in adolescents; women's rights and children's rights;
responsible teenage behavior; gender and development; and responsible parenthood, and that Rule
10, Section 11.01 of the RH-IRR and Section 4(t) of the RH Law itself provides for the teaching of
responsible teenage behavior, gender sensitivity and physical and emotional changes among
adolescents - the Court finds that the legal mandate provided under the assailed provision
supplements, rather than supplants, the rights and duties of the parents in the moral development of
their children.

Furthermore, as Section 14 also mandates that the mandatory reproductive health education
program shall be developed in conjunction with parent-teacher-community associations, school
officials and other interest groups, it could very well be said that it will be in line with the religious
beliefs of the petitioners. By imposing such a condition, it becomes apparent that the petitioners'
contention that Section 14 violates Article XV, Section 3(1) of the Constitution is without merit.254

While the Court notes the possibility that educators might raise their objection to their participation in
the reproductive health education program provided under Section 14 of the RH Law on the ground
that the same violates their religious beliefs, the Court reserves its judgment should an actual case
be filed before it.

6 - Due Process

The petitioners contend that the RH Law suffers from vagueness and, thus violates the due process
clause of the Constitution. According to them, Section 23 (a)(l) mentions a "private health service
provider" among those who may be held punishable but does not define who is a "private health care
service provider." They argue that confusion further results since Section 7 only makes reference to
a "private health care institution."

The petitioners also point out that Section 7 of the assailed legislation exempts hospitals operated by
religious groups from rendering reproductive health service and modern family planning methods. It
is unclear, however, if these institutions are also exempt from giving reproductive health information
under Section 23(a)(l), or from rendering reproductive health procedures under Section 23(a)(2).

Finally, it is averred that the RH Law punishes the withholding, restricting and providing of incorrect
information, but at the same time fails to define "incorrect information."

The arguments fail to persuade.

A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that
men of common intelligence must necessarily guess its meaning and differ as to its application. It is
repugnant to the Constitution in two respects: (1) it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law
enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the
Government muscle.255 Moreover, in determining whether the words used in a statute are vague,
words must not only be taken in accordance with their plain meaning alone, but also in relation to
other parts of the statute. It is a rule that every part of the statute must be interpreted with reference
to the context, that is, every part of it must be construed together with the other parts and kept
subservient to the general intent of the whole enactment.256

As correctly noted by the OSG, in determining the definition of "private health care service provider,"
reference must be made to Section 4(n) of the RH Law which defines a "public health service
provider," viz:

(n) Public health care service provider refers to: (1) public health care institution, which is duly
licensed and accredited and devoted primarily to the maintenance and operation of facilities for
health promotion, disease prevention, diagnosis, treatment and care of individuals suffering from
illness, disease, injury, disability or deformity, or in need of obstetrical or other medical and nursing
care; (2) public health care professional, who is a doctor of medicine, a nurse or a midvvife; (3)
public health worker engaged in the delivery of health care services; or (4) barangay health worker
who has undergone training programs under any accredited government and NGO and who
voluntarily renders primarily health care services in the community after having been accredited to
function as such by the local health board in accordance with the guidelines promulgated by the
Department of Health (DOH) .

Further, the use of the term "private health care institution" in Section 7 of the law, instead of "private
health care service provider," should not be a cause of confusion for the obvious reason that they
are used synonymously.

The Court need not belabor the issue of whether the right to be exempt from being obligated to
render reproductive health service and modem family planning methods, includes exemption from
being obligated to give reproductive health information and to render reproductive health
procedures. Clearly, subject to the qualifications and exemptions earlier discussed, the right to be
exempt from being obligated to render reproductive health service and modem family planning
methods, necessarily includes exemption from being obligated to give reproductive health
information and to render reproductive health procedures. The terms "service" and "methods" are
broad enough to include the providing of information and the rendering of medical procedures.

The same can be said with respect to the contention that the RH Law punishes health care service
providers who intentionally withhold, restrict and provide incorrect information regarding reproductive
health programs and services. For ready reference, the assailed provision is hereby quoted as
follows:
SEC. 23. Prohibited Acts. - The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

(1) Knowingly withhold information or restrict the dissemination thereof, and/ or intentionally provide
incorrect information regarding programs and services on reproductive health including the right to
informed choice and access to a full range of legal, medically-safe, non-abortifacient and effective
family planning methods;

From its plain meaning, the word "incorrect" here denotes failing to agree with a copy or model or
with established rules; inaccurate, faulty; failing to agree with the requirements of duty, morality or
propriety; and failing to coincide with the truth. 257 On the other hand, the word "knowingly" means
with awareness or deliberateness that is intentional.258 Used together in relation to Section 23(a)(l),
they connote a sense of malice and ill motive to mislead or misrepresent the public as to the nature
and effect of programs and services on reproductive health. Public health and safety demand that
health care service providers give their honest and correct medical information in accordance with
what is acceptable in medical practice. While health care service providers are not barred from
expressing their own personal opinions regarding the programs and services on reproductive health,
their right must be tempered with the need to provide public health and safety. The public deserves
no less.

7-Egual Protection

The petitioners also claim that the RH Law violates the equal protection clause under the
Constitution as it discriminates against the poor because it makes them the primary target of the
government program that promotes contraceptive use . They argue that, rather than promoting
reproductive health among the poor, the RH Law introduces contraceptives that would effectively
reduce the number of the poor. Their bases are the various provisions in the RH Law dealing with
the poor, especially those mentioned in the guiding principles259 and definition of terms260 of the law.

They add that the exclusion of private educational institutions from the mandatory reproductive
health education program imposed by the RH Law renders it unconstitutional.

In Biraogo v. Philippine Truth Commission,261 the Court had the occasion to expound on the concept
of equal protection. Thus:

One of the basic principles on which this government was founded is that of the equality of right
which is embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the laws
is embraced in the concept of due process, as every unfair discrimination offends the requirements
of justice and fair play. It has been embodied in a separate clause, however, to provide for a more
specific guaranty against any form of undue favoritism or hostility from the government. Arbitrariness
in general may be challenged on the basis of the due process clause. But if the particular act
assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the
equal protection clause.

"According to a long line of decisions, equal protection simply requires that all persons or things
similarly situated should be treated alike, both as to rights conferred and responsibilities imposed." It
"requires public bodies and inst itutions to treat similarly situated individuals in a similar manner."
"The purpose of the equal protection clause is to secure every person within a state's jurisdiction
against intentional and arbitrary discrimination, whether occasioned by the express terms of a statue
or by its improper execution through the state's duly constituted authorities." "In other words, the
concept of equal justice under the law requires the state to govern impartially, and it may not draw
distinctions between individuals solely on differences that are irrelevant to a legitimate governmental
objective."

The equal protection clause is aimed at all official state actions, not just those of the legislature. Its
inhibitions cover all the departments of the government including the political and executive
departments, and extend to all actions of a state denying equal protection of the laws, through
whatever agency or whatever guise is taken.

It, however, does not require the universal application of the laws to all persons or things without
distinction. What it simply requires is equality among equals as determined according to a valid
classification. Indeed, the equal protection clause permits classification. Such classification,
however, to be valid must pass the test of reasonableness. The test has four requisites: (1) The
classification rests on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not
limited to existing conditions only; and (4) It applies equally to all members of the same class.
"Superficial differences do not make for a valid classification."

For a classification to meet the requirements of constitutionality, it must include or embrace all
persons who naturally belong to the class. "The classification will be regarded as invalid if all the
members of the class are not similarly treated, both as to rights conferred and obligations imposed. It
is not necessary that the classification be made with absolute symmetry, in the sense that the
members of the class should possess the same characteristics in equal degree. Substantial
similarity will suffice; and as long as this is achieved, all those covered by the classification are to be
treated equally. The mere fact that an individual belonging to a class differs from the other members,
as long as that class is substantially distinguishable from all others, does not justify the non-
application of the law to him."

The classification must not be based on existing circumstances only, or so constituted as to preclude
addition to the number included in the class. It must be of such a nature as to embrace all those who
may thereafter be in similar circumstances and conditions. It must not leave out or "underinclude"
those that should otherwise fall into a certain classification. [Emphases supplied; citations excluded]

To provide that the poor are to be given priority in the government's reproductive health care
program is not a violation of the equal protection clause. In fact, it is pursuant to Section 11, Article
XIII of the Constitution which recognizes the distinct necessity to address the needs of the
underprivileged by providing that they be given priority in addressing the health development of the
people. Thus:

Section 11. The State shall adopt an integrated and comprehensive approach to health development
which shall endeavor to make essential goods, health and other social services available to all the
people at affordable cost. There shall be priority for the needs of the underprivileged, sick, elderly,
disabled, women, and children. The State shall endeavor to provide free medical care to paupers.

It should be noted that Section 7 of the RH Law prioritizes poor and marginalized couples who are
suffering from fertility issues and desire to have children. There is, therefore, no merit to the
contention that the RH Law only seeks to target the poor to reduce their number. While the RH Law
admits the use of contraceptives, it does not, as elucidated above, sanction abortion. As Section 3(1)
explains, the "promotion and/or stabilization of the population growth rate is incidental to the
advancement of reproductive health."

Moreover, the RH Law does not prescribe the number of children a couple may have and does not
impose conditions upon couples who intend to have children. While the petitioners surmise that the
assailed law seeks to charge couples with the duty to have children only if they would raise them in a
truly humane way, a deeper look into its provisions shows that what the law seeks to do is to simply
provide priority to the poor in the implementation of government programs to promote basic
reproductive health care.

With respect to the exclusion of private educational institutions from the mandatory reproductive
health education program under Section 14, suffice it to state that the mere fact that the children of
those who are less fortunate attend public educational institutions does not amount to substantial
distinction sufficient to annul the assailed provision. On the other hand, substantial distinction rests
between public educational institutions and private educational institutions, particularly because
there is a need to recognize the academic freedom of private educational institutions especially with
respect to religious instruction and to consider their sensitivity towards the teaching of reproductive
health education.

8-Involuntary Servitude

The petitioners also aver that the RH Law is constitutionally infirm as it violates the constitutional
prohibition against involuntary servitude. They posit that Section 17 of the assailed legislation
requiring private and non-government health care service providers to render forty-eight (48) hours
of pro bono reproductive health services, actually amounts to involuntary servitude because it
requires medical practitioners to perform acts against their will.262

The OSG counters that the rendition of pro bono services envisioned in Section 17 can hardly be
considered as forced labor analogous to slavery, as reproductive health care service providers have
the discretion as to the manner and time of giving pro bono services. Moreover, the OSG points out
that the imposition is within the powers of the government, the accreditation of medical practitioners
with PhilHealth being a privilege and not a right.

The point of the OSG is well-taken.

It should first be mentioned that the practice of medicine is undeniably imbued with public interest
that it is both a power and a duty of the State to control and regulate it in order to protect and
promote the public welfare. Like the legal profession, the practice of medicine is not a right but a
privileged burdened with conditions as it directly involves the very lives of the people. A fortiori, this
power includes the power of Congress263 to prescribe the qualifications for the practice of professions
or trades which affect the public welfare, the public health, the public morals, and the public safety;
and to regulate or control such professions or trades, even to the point of revoking such right
altogether.264

Moreover, as some petitioners put it, the notion of involuntary servitude connotes the presence of
force, threats, intimidation or other similar means of coercion and compulsion.265 A reading of the
assailed provision, however, reveals that it only encourages private and non- government
reproductive healthcare service providers to render pro bono service. Other than non-accreditation
with PhilHealth, no penalty is imposed should they choose to do otherwise. Private and non-
government reproductive healthcare service providers also enjoy the liberty to choose which kind of
health service they wish to provide, when, where and how to provide it or whether to provide it all.
Clearly, therefore, no compulsion, force or threat is made upon them to render pro bono service
against their will. While the rendering of such service was made a prerequisite to accreditation with
PhilHealth, the Court does not consider the same to be an unreasonable burden, but rather, a
necessary incentive imposed by Congress in the furtherance of a perceived legitimate state interest.
Consistent with what the Court had earlier discussed, however, it should be emphasized that
conscientious objectors are exempt from this provision as long as their religious beliefs and
convictions do not allow them to render reproductive health service, pro bona or otherwise.

9-Delegation of Authority to the FDA

The petitioners likewise question the delegation by Congress to the FDA of the power to determine
whether or not a supply or product is to be included in the Essential Drugs List (EDL).266

The Court finds nothing wrong with the delegation. The FDA does not only have the power but also
the competency to evaluate, register and cover health services and methods. It is the only
government entity empowered to render such services and highly proficient to do so. It should be
understood that health services and methods fall under the gamut of terms that are associated with
what is ordinarily understood as "health products."

In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No. 9711 reads:

SEC. 4. To carry out the provisions of this Act, there is hereby created an office to be called the
Food and Drug Administration (FDA) in the Department of Health (DOH). Said Administration shall
be under the Office of the Secretary and shall have the following functions, powers and duties:

"(a) To administer the effective implementation of this Act and of the rules and regulations
issued pursuant to the same;

"(b) To assume primary jurisdiction in the collection of samples of health products;

"(c) To analyze and inspect health products in connection with the implementation of this Act;

"(d) To establish analytical data to serve as basis for the preparation of health products
standards, and to recommend standards of identity, purity, safety, efficacy, quality and fill of
container;

"(e) To issue certificates of compliance with technical requirements to serve as basis for the
issuance of appropriate authorization and spot-check for compliance with regulations
regarding operation of manufacturers, importers, exporters, distributors, wholesalers, drug
outlets, and other establishments and facilities of health products, as determined by the FDA;

"x x x

"(h) To conduct appropriate tests on all applicable health products prior to the issuance of
appropriate authorizations to ensure safety, efficacy, purity, and quality;

"(i) To require all manufacturers, traders, distributors, importers, exporters, wholesalers,

retailers, consumers, and non-consumer users of health products to report to the FDA any
incident that reasonably indicates that said product has caused or contributed to the death,
serious illness or serious injury to a consumer, a patient, or any person;

"(j) To issue cease and desist orders motu propio or upon verified complaint for health
products, whether or not registered with the FDA Provided, That for registered health
products, the cease and desist order is valid for thirty (30) days and may be extended for
sixty ( 60) days only after due process has been observed;
 "(k) After due process, to order the ban, recall, and/or withdrawal of any health product found
to have caused death, serious illness or serious injury to a consumer or patient, or is found to
be imminently injurious, unsafe, dangerous, or grossly deceptive, and to require all
concerned to implement the risk management plan which is a requirement for the issuance
of the appropriate authorization;

x x x.

As can be gleaned from the above, the functions, powers and duties of the FDA are specific to
enable the agency to carry out the mandates of the law. Being the country's premiere and sole
agency that ensures the safety of food and medicines available to the public, the FDA was equipped
with the necessary powers and functions to make it effective. Pursuant to the principle of necessary
implication, the mandate by Congress to the FDA to ensure public health and safety by permitting
only food and medicines that are safe includes "service" and "methods." From the declared policy of
the RH Law, it is clear that Congress intended that the public be given only those medicines that are
proven medically safe, legal, non-abortifacient, and effective in accordance with scientific and
evidence-based medical research standards. The philosophy behind the permitted delegation was
explained in Echagaray v. Secretary of Justice,267 as follows:

The reason is the increasing complexity of the task of the government and the growing inability of
the legislature to cope directly with the many problems demanding its attention. The growth of
society has ramified its activities and created peculiar and sophisticated problems that the legislature
cannot be expected reasonably to comprehend. Specialization even in legislation has become
necessary. To many of the problems attendant upon present day undertakings, the legislature may
not have the competence, let alone the interest and the time, to provide the required direct and
efficacious, not to say specific solutions.

10- Autonomy of Local Governments and the Autonomous Region

of Muslim Mindanao (ARMM)

As for the autonomy of local governments, the petitioners claim that the RH Law infringes upon the
powers devolved to local government units (LGUs) under Section 17 of the Local Government Code.
Said Section 17 vested upon the LGUs the duties and functions pertaining to the delivery of basic
services and facilities, as follows:

SECTION 17. Basic Services and Facilities.

(a) Local government units shall endeavor to be self-reliant and shall continue exercising the
powers and discharging the duties and functions currently vested upon them. They shall also
discharge the functions and responsibilities of national agencies and offices devolved to
them pursuant to this Code. Local government units shall likewise exercise such other
powers and discharge such other functions and responsibilities as are necessary,
appropriate, or incidental to efficient and effective provision of the basic services and
facilities enumerated herein.

(b) Such basic services and facilities include, but are not limited to, x x x.

While the aforementioned provision charges the LGUs to take on the functions and
responsibilities that have already been devolved upon them from the national agencies on
the aspect of providing for basic services and facilities in their respective jurisdictions,
 paragraph (c) of the same provision provides a categorical exception of cases involving
nationally-funded projects, facilities, programs and services.268 Thus:

(c) Notwithstanding the provisions of subsection (b) hereof, public works and infrastructure
projects and other facilities, programs and services funded by the National Government
under the annual General Appropriations Act, other special laws, pertinent executive orders,
and those wholly or partially funded from foreign sources, are not covered under this Section,
except in those cases where the local government unit concerned is duly designated as the
implementing agency for such projects, facilities, programs and services. [Emphases
supplied]

The essence of this express reservation of power by the national government is that, unless an LGU
is particularly designated as the implementing agency, it has no power over a program for which
funding has been provided by the national government under the annual general appropriations act,
even if the program involves the delivery of basic services within the jurisdiction of the LGU.269 A
complete relinquishment of central government powers on the matter of providing basic facilities and
services cannot be implied as the Local Government Code itself weighs against it.270

In this case, a reading of the RH Law clearly shows that whether it pertains to the establishment of
health care facilities,271 the hiring of skilled health professionals,272 or the training of barangay health
workers,273 it will be the national government that will provide for the funding of its implementation.
Local autonomy is not absolute. The national government still has the say when it comes to national
priority programs which the local government is called upon to implement like the RH Law.

Moreover, from the use of the word "endeavor," the LG Us are merely encouraged to provide these
services. There is nothing in the wording of the law which can be construed as making the
availability of these services mandatory for the LGUs. For said reason, it cannot be said that the RH
Law amounts to an undue encroachment by the national government upon the autonomy enjoyed by
the local governments.

The ARMM

The fact that the RH Law does not intrude in the autonomy of local governments can be equally
applied to the ARMM. The RH Law does not infringe upon its autonomy. Moreover, Article III,
Sections 6, 10 and 11 of R.A. No. 9054, or the organic act of the ARMM, alluded to by petitioner
Tillah to justify the exemption of the operation of the RH Law in the autonomous region, refer to the
policy statements for the guidance of the regional government. These provisions relied upon by the
petitioners simply delineate the powers that may be exercised by the regional government, which
can, in no manner, be characterized as an abdication by the State of its power to enact legislation
that would benefit the general welfare. After all, despite the veritable autonomy granted the ARMM,
the Constitution and the supporting jurisprudence, as they now stand, reject the notion of imperium
et imperio in the relationship between the national and the regional governments.274 Except for the
express and implied limitations imposed on it by the Constitution, Congress cannot be restricted to
exercise its inherent and plenary power to legislate on all subjects which extends to all matters of
general concern or common interest.275

11 - Natural Law

With respect to the argument that the RH Law violates natural law,276 suffice it to say that the Court
does not duly recognize it as a legal basis for upholding or invalidating a law. Our only guidepost is
the Constitution. While every law enacted by man emanated from what is perceived as natural law,
the Court is not obliged to see if a statute, executive issuance or ordinance is in conformity to it. To
begin with, it is not enacted by an acceptable legitimate body. Moreover, natural laws are mere
thoughts and notions on inherent rights espoused by theorists, philosophers and theologists. The
jurists of the philosophical school are interested in the law as an abstraction, rather than in the actual
law of the past or present.277 Unless, a natural right has been transformed into a written law, it cannot
serve as a basis to strike down a law. In Republic v. Sandiganbayan,278 the very case cited by the
petitioners, it was explained that the Court is not duty-bound to examine every law or action and
whether it conforms with both the Constitution and natural law. Rather, natural law is to be used
sparingly only in the most peculiar of circumstances involving rights inherent to man where no law is
applicable.279

At any rate, as earlier expounded, the RH Law does not sanction the taking away of life. It does not
allow abortion in any shape or form. It only seeks to enhance the population control program of the
government by providing information and making non-abortifacient contraceptives more readily
available to the public, especially to the poor.

Facts and Fallacies

and the Wisdom of the Law

In general, the Court does not find the RH Law as unconstitutional insofar as it seeks to provide
access to medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive
healthcare services, methods, devices, and supplies. As earlier pointed out, however, the religious
freedom of some sectors of society cannot be trampled upon in pursuit of what the law hopes to
achieve. After all, the Constitutional safeguard to religious freedom is a recognition that man stands
accountable to an authority higher than the State.

In conformity with the principle of separation of Church and State, one religious group cannot be
allowed to impose its beliefs on the rest of the society. Philippine modem society leaves enough
room for diversity and pluralism. As such, everyone should be tolerant and open-minded so that
peace and harmony may continue to reign as we exist alongside each other.

As healthful as the intention of the RH Law may be, the idea does not escape the Court that what it
seeks to address is the problem of rising poverty and unemployment in the country. Let it be said
that the cause of these perennial issues is not the large population but the unequal distribution of
wealth. Even if population growth is controlled, poverty will remain as long as the country's wealth
remains in the hands of the very few.

At any rate, population control may not be beneficial for the country in the long run. The European
and Asian countries, which embarked on such a program generations ago , are now burdened with
ageing populations. The number of their young workers is dwindling with adverse effects on their
economy. These young workers represent a significant human capital which could have helped them
invigorate, innovate and fuel their economy. These countries are now trying to reverse their
programs, but they are still struggling. For one, Singapore, even with incentives, is failing.

And in this country, the economy is being propped up by remittances from our Overseas Filipino
Workers. This is because we have an ample supply of young able-bodied workers. What would
happen if the country would be weighed down by an ageing population and the fewer younger
generation would not be able to support them? This would be the situation when our total fertility rate
would go down below the replacement level of two (2) children per woman.280
Indeed, at the present, the country has a population problem, but the State should not use coercive
measures (like the penal provisions of the RH Law against conscientious objectors) to solve it.
Nonetheless, the policy of the Court is non-interference in the wisdom of a law.

x x x. But this Court cannot go beyond what the legislature has laid down. Its duty is to say what the
law is as enacted by the lawmaking body. That is not the same as saying what the law should be or
what is the correct rule in a given set of circumstances. It is not the province of the judiciary to look
into the wisdom of the law nor to question the policies adopted by the legislative branch. Nor is it the
business of this Tribunal to remedy every unjust situation that may arise from the application of a
particular law. It is for the legislature to enact remedial legislation if that would be necessary in the
premises. But as always, with apt judicial caution and cold neutrality, the Court must carry out the
delicate function of interpreting the law, guided by the Constitution and existing legislation and
mindful of settled jurisprudence. The Court's function is therefore limited, and accordingly, must
confine itself to the judicial task of saying what the law is, as enacted by the lawmaking body.281

Be that as it may, it bears reiterating that the RH Law is a mere compilation and enhancement of the
prior existing contraceptive and reproductive health laws, but with coercive measures. Even if the
Court decrees the RH Law as entirely unconstitutional, there will still be the Population Act (R.A. No.
6365), the Contraceptive Act (R.A. No. 4729) and the reproductive health for women or The Magna
Carta of Women (R.A. No. 9710), sans the coercive provisions of the assailed legislation. All the
same, the principle of "no-abortion" and "non-coercion" in the adoption of any family planning
method should be maintained.

WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the Court declares R.A. No.
10354 as NOT UNCONSTITUTIONAL except with respect to the following provisions which are
declared UNCONSTITUTIONAL:

1) Section 7 and the corresponding provision in the RH-IRR insofar as they: a) require
private health facilities and non-maternity specialty hospitals and hospitals owned and
operated by a religious group to refer patients, not in an emergency or life-threatening case,
as defined under Republic Act No. 8344, to another health facility which is conveniently
accessible; and b) allow minor-parents or minors who have suffered a miscarriage access to
modem methods of family planning without written consent from their parents or guardian/s;

2) Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly Section 5 .24
thereof, insofar as they punish any healthcare service provider who fails and or refuses to
disseminate information regarding programs and services on reproductive health regardless
of his or her religious beliefs.

3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they allow a
married individual, not in an emergency or life-threatening case, as defined under Republic
Act No. 8344, to undergo reproductive health procedures without the consent of the spouse;

4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they limit the
requirement of parental consent only to elective surgical procedures.

5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly Section 5.24
thereof, insofar as they punish any healthcare service provider who fails and/or refuses to
refer a patient not in an emergency or life-threatening case, as defined under Republic Act
No. 8344, to another health care service provider within the same facility or one which is
conveniently accessible regardless of his or her religious beliefs;
 6) Section 23(b) and the corresponding provision in the RH-IRR, particularly Section 5 .24
thereof, insofar as they punish any public officer who refuses to support reproductive health
programs or shall do any act that hinders the full implementation of a reproductive health
program, regardless of his or her religious beliefs;

7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the rendering of pro
bona reproductive health service in so far as they affect the conscientious objector in
securing PhilHealth accreditation; and

8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier "primarily" in
defining abortifacients and contraceptives, as they are ultra vires and, therefore, null and
void for contravening Section 4(a) of the RH Law and violating Section 12, Article II of the
Constitution.

The Status Quo Ante Order issued by the Court on March 19, 2013 as extended by its Order, dated
July 16, 2013 , is hereby LIFTED, insofar as the provisions of R.A. No. 10354 which have been
herein declared as constitutional.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

WE CONCUR:

Tingnan ang aking opinyong

Sumasang-ayon at Sumasalungat
MARIA LOURDES P. A. SERENO
Chief Justice

See Concurring Opinion

PRESBITERO J. VELASCO, JR.
ANTONIO T. CARPIO
Associate Justice
Associate Justice

With Separate concurring opinion See: Separate Concurring Opinion

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION
Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

See Concurring and dissenting See Concurring Opinion

MARIANO C. DEL CASTILLO ROBERTO A. ABAD
Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

Associate Justice Associate Justice
 See concurring and dissenting See Concurring and Dissenting Opinion
BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE
Associate Justice Associate Justice

See Separate dissent

MARVIC MARIO VICTOR F. LEONEN
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I hereby certify that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court.

MARIA LOURDES P. A. SERENO

Chief Justice

Imbong vs Ochoa
Substantial: Right to Life; Health; Religion; Free Speech;
Privacy; Due Process Clause; Equal Protection Clause
Procedural: Actual Case; Facial Challenge; Locus Standi;
Declaratory Relief; One Subject One Title Rule

IMBONG VS OCHOA
G.R. No. 204819 April 8, 2014
JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and in behalf of their minor children,
LUCIA CARLOS IMBONG and BERNADETTE CARLOS IMBONG and MAGNIFICAT CHILD
DEVELOPMENT CENTER, INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON.
ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports and HON. MANUELA.
ROXAS II, Secretary, Department of Interior and Local Government, Respondents.

Facts:
Republic Act (R.A.) No. 10354, otherwise known as the Responsible Parenthood and Reproductive Health Act
of 2012 (RH Law), was enacted by Congress on December 21, 2012.
Challengers from various sectors of society are questioning the constitutionality of the said Act. The
petitioners are assailing the constitutionality of RH Law on the following grounds:
SUBSTANTIAL ISSUES:

1. The RH Law violates the right to life of the unborn.

2. The RH Law violates the right to health and the right to protection against hazardous products.
3. The RH Law violates the right to religious freedom.
4. The RH Law violates the constitutional provision on involuntary servitude.
5. The RH Law violates the right to equal protection of the law.
6. The RH Law violates the right to free speech.
7. The RH Law is void-for-vagueness in violation of the due process clause of the Constitution.
8. The RH Law intrudes into the zone of privacy of ones family protected by the Constitution

PROCEDURAL: Whether the Court may exercise its power of judicial review over the controversy.

1. Power of Judicial Review

2. Actual Case or Controversy
3. Facial Challenge
4. Locus Standi
5. Declaratory Relief
6. One Subject/One Title Rule

Issue/s:
SUBSTANTIAL ISSUES:
Whether or not (WON) RA 10354/Reproductive Health (RH) Law is unconstitutional for violating the:

1. Right to life
2. Right to health
3. Freedom of religion and right to free speech
4. Right to privacy (marital privacy and autonomy)
5. Freedom of expression and academic freedom
6. Due process clause
7. Equal protection clause
8. Prohibition against involuntary servitude
PROCEDURAL:
Whether the Court can exercise its power of judicial review over the controversy.

1. Actual Case or Controversy

2. Facial Challenge
3. Locus Standi
4. Declaratory Relief
5. One Subject/One Title Rule

Discussions:
PROCEDURAL
Judicial Review Jurisprudence is replete with the rule that the power of judicial review is limited by four
exacting requisites: (a) there must be an actual case or controversy; (b) the petitioners must possess locus
standi; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the issue of
constitutionality must be the lis mota of the case.
Actual Controversy: An actual case or controversy means an existing case or controversy that is appropriate
or ripe for determination, not conjectural or anticipatory, lest the decision of the court would amount to an
advisory opinion. It must concern a real, tangible and not merely a theoretical question or issue. There ought to
be an actual and substantial controversy admitting of specific relief through a decree conclusive in nature, as
distinguished from an opinion advising what the law would be upon a hypothetical state of facts. Corollary to
the requirement of an actual case or controversy is the requirement of ripeness. A question is ripe for
adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. For
a case to be considered ripe for adjudication, it is a prerequisite that something has then been accomplished or
performed by either branch before a court may come into the picture, and the petitioner must allege the
existence of an immediate or threatened injury to himself as a result of the challenged action. He must show
that he has sustained or is immediately in danger of sustaining some direct injury as a result of the act
complained of
Facial Challenge: A facial challenge, also known as a First Amendment Challenge, is one that is launched to
assail the validity of statutes concerning not only protected speech, but also all other rights in the First
Amendment. These include religious freedom, freedom of the press, and the right of the people to peaceably
assemble, and to petition the Government for a redress of grievances. After all, the fundamental right to
religious freedom, freedom of the press and peaceful assembly are but component rights of the right to ones
freedom of expression, as they are modes which ones thoughts are externalized.
Locus Standi: Locus standi or legal standing is defined as a personal and substantial interest in a case such
that the party has sustained or will sustain direct injury as a result of the challenged governmental act. It
requires a personal stake in the outcome of the controversy as to assure the concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions.
Transcendental Importance: the Court leans on the doctrine that the rule on standing is a matter of
procedure, hence, can be relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers, and legislators
when the public interest so requires, such as when the matter is of transcendental importance, of overreaching
significance to society, or of paramount public interest.
One Subject-One Title: The one title-one subject rule does not require the Congress to employ in the title
of the enactment language of such precision as to mirror, fully index or catalogue all the contents and the
minute details therein. The rule is sufficiently complied with if the title is comprehensive enough as to include
the general object which the statute seeks to effect, and where, as here, the persons interested are informed of
the nature, scope and consequences of the proposed law and its operation. Moreover, this Court has invariably
adopted a liberal rather than technical construction of the rule so as not to cripple or impede legislation. The
one subject/one title rule expresses the principle that the title of a law must not be so uncertain that the
average person reading it would not be informed of the purpose of the enactment or put on inquiry as to its
contents, or which is misleading, either in referring to or indicating one subject where another or different one
is really embraced in the act, or in omitting any expression or indication of the real subject or scope of the
act.
Declaration of Unconstitutionality: Orthodox view: An unconstitutional act is not a law; it confers no
rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as
inoperative as though it had never been passed. Modern view: Under this view, the court in passing upon the
question of constitutionality does not annul or repeal the statute if it finds it in conflict with the Constitution. It
simply refuses to recognize it and determines the rights of the parties just as if such statute had no existence.
But certain legal effects of the statute prior to its declaration of unconstitutionality may be recognized.
Requisites for partial unconstitutionality: (1) The Legislature must be willing to retain the valid portion(s),
usually shown by the presence of a separability clause in the law; and (2) The valid portion can stand
independently as law.

Ruling/s:
SUBSTANTIAL

1. Majority of the Members of the Court believe that the question of when life begins is a scientific and
medical issue that should not be decided, at this stage, without proper hearing and evidence. However,
they agreed that individual Members could express their own views on this matter.

Article II, Section 12 of the Constitution states: The State recognizes the sanctity of family life and shall
protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the
mother and the life of the unborn from conception.
In its plain and ordinary meaning (a canon in statutory construction), the traditional meaning of conception
according to reputable dictionaries cited by the ponente is that life begins at fertilization. Medical sources also
support the view that conception begins at fertilization.
The framers of the Constitution also intended for (a) conception to refer to the moment of fertilization and
(b) the protection of the unborn child upon fertilization. In addition, they did not intend to ban all
contraceptives for being unconstitutional; only those that kill or destroy the fertilized ovum would be
prohibited. Contraceptives that actually prevent the union of the male sperm and female ovum, and those that
similarly take action before fertilization should be deemed non-abortive, and thus constitutionally permissible.
The intent of the framers of the Constitution for protecting the life of the unborn child was to prevent the
Legislature from passing a measure prevent abortion. The Court cannot interpret this otherwise. The RH Law
is in line with this intent and actually prohibits abortion. By using the word or in defining
abortifacient (Section 4(a)), the RH Law prohibits not only drugs or devices that prevent implantation but also
those that induce abortion and induce the destruction of a fetus inside the mothers womb. The RH Law
recognizes that the fertilized ovum already has life and that the State has a bounded duty to protect it.
However, the authors of the IRR gravely abused their office when they redefined the meaning of abortifacient
by using the term primarily. Recognizing as abortifacients only those that primarily induce abortion or the
destruction of a fetus inside the mothers womb or the prevention of the fertilized ovum to reach and be
implanted in the mothers womb (Sec. 3.01(a) of the IRR) would pave the way for the approval of
contraceptives that may harm or destroy the life of the unborn from conception/fertilization. This violates
Section 12, Article II of the Constitution. For the same reason, the definition of contraceptives under the IRR
(Sec 3.01(j)), which also uses the term primarily, must be struck down.

2. The RH Law does not intend to do away with RA 4729 (1966). With RA 4729 in place, the Court believes
adequate safeguards exist to ensure that only safe contraceptives are made available to the public. In
fulfilling its mandate under Sec. 10 of the RH Law, the DOH must keep in mind the provisions of RA
4729: the contraceptives it will procure shall be from a duly licensed drug store or pharmaceutical
company and that the actual distribution of these contraceptive drugs and devices will be done following a
prescription of a qualified medical practitioner.

Meanwhile, the requirement of Section 9 of the RH Law is to be considered mandatory only after these
devices and materials have been tested, evaluated and approved by the FDA. Congress cannot determine that
contraceptives are safe, legal, non-abortificient and effective.

3. The Court cannot determine whether or not the use of contraceptives or participation in support of modern
RH measures (a) is moral from a religious standpoint; or, (b) right or wrong according to ones dogma or
belief. However, the Court has the authority to determine whether or not the RH Law contravenes the
Constitutional guarantee of religious freedom.

The State may pursue its legitimate secular objectives without being dictated upon the policies of any one
religion. To allow religious sects to dictate policy or restrict other groups would violate Article III, Section 5 of
the Constitution or the Establishment Clause. This would cause the State to adhere to a particular religion, and
thus, establishes a state religion. Thus, the State can enhance its population control program through the RH
Law even if the promotion of contraceptive use is contrary to the religious beliefs of e.g. the petitioners.

4. Section 23A (2)(i) of the RH Law, which permits RH procedures even with only the consent of the spouse
undergoing the provision (disregarding spousal content), intrudes into martial privacy and autonomy and
goes against the constitutional safeguards for the family as the basic social institution. Particularly, Section
3, Article XV of the Constitution mandates the State to defend: (a) the right of spouses to found a family
in accordance with their religious convictions and the demands of responsible parenthood and (b) the right
of families or family associations to participate in the planning and implementation of policies and
programs that affect them. The RH Law cannot infringe upon this mutual decision-making, and endanger
the institutions of marriage and the family.

The exclusion of parental consent in cases where a minor undergoing a procedure is already a parent or has had
a miscarriage (Section 7 of the RH Law) is also anti-family and violates Article II, Section 12 of the
Constitution, which states: The natural and primary right and duty of parents in the rearing of the youth for
civic efficiency and the development of moral character shall receive the support of the Government. In
addition, the portion of Section 23(a)(ii) which reads in the case of minors, the written consent of parents or
legal guardian or, in their absence, persons exercising parental authority or next-of-kin shall be required only
in elective surgical procedures is invalid as it denies the right of parental authority in cases where what is
involved is non-surgical procedures.
However, a minor may receive information (as opposed to procedures) about family planning services. Parents
are not deprived of parental guidance and control over their minor child in this situation and may assist her in
deciding whether to accept or reject the information received. In addition, an exception may be made in life-
threatening procedures.

5. The Court declined to rule on the constitutionality of Section 14 of the RH Law, which mandates the State
to provide Age-and Development-Appropriate Reproductive Health Education. Although educators might
raise their objection to their participation in the RH education program, the Court reserves its judgment
should an actual case be filed before it.

Any attack on its constitutionality is premature because the Department of Education has not yet formulated a
curriculum on age-appropriate reproductive health education.
Section 12, Article II of the Constitution places more importance on the role of parents in the development of
their children with the use of the term primary. The right of parents in upbringing their youth is superior to
that of the State.
The provisions of Section 14 of the RH Law and corresponding provisions of the IRR supplement (rather than
supplant) the right and duties of the parents in the moral development of their children.
By incorporating parent-teacher-community associations, school officials, and other interest groups in
developing the mandatory RH program, it could very well be said that the program will be in line with the
religious beliefs of the petitioners.

6. The RH Law does not violate the due process clause of the Constitution as the definitions of several terms
as observed by the petitioners are not vague.

The definition of private health care service provider must be seen in relation to Section 4(n) of the RH Law
which defines a public health service provider. The private health care institution cited under Section 7
should be seen as synonymous to private health care service provider.
The terms service and methods are also broad enough to include providing of information and rendering of
medical procedures. Thus, hospitals operated by religious groups are exempted from rendering RH service and
modern family planning methods (as provided for by Section 7 of the RH Law) as well as from giving RH
information and procedures.
The RH Law also defines incorrect information. Used together in relation to Section 23 (a)(1), the terms
incorrect and knowingly connote a sense of malice and ill motive to mislead or misrepresent the public as
to the nature and effect of programs and services on reproductive health.

7. To provide that the poor are to be given priority in the governments RH program is not a violation of the
equal protection clause. In fact, it is pursuant to Section 11, Article XIII of the Constitution, which states
that the State shall prioritize the needs of the underprivileged, sick elderly, disabled, women, and children
and that it shall endeavor to provide medical care to paupers.

The RH Law does not only seek to target the poor to reduce their number, since Section 7 of the RH Law
prioritizes poor and marginalized couples who are suffering from fertility issues and desire to have children. In
addition, the RH Law does not prescribe the number of children a couple may have and does not impose
conditions upon couples who intend to have children. The RH Law only seeks to provide priority to the poor.
The exclusion of private educational institutions from the mandatory RH education program under Section 14
is valid. There is a need to recognize the academic freedom of private educational institutions especially with
respect to religious instruction and to consider their sensitivity towards the teaching of reproductive health
education

8. The requirement under Sec. 17 of the RH Law for private and non-government health care service
providers to render 48 hours of pro bonoRH services does not amount to involuntary servitude, for two
reasons. First, the practice of medicine is undeniably imbued with public interest that it is both the power
and a duty of the State to control and regulate it in order to protect and promote the public welfare.
Second, Section 17 only encourages private and non-government RH service providers to render pro
bono Besides the PhilHealth accreditation, no penalty is imposed should they do otherwise.

However, conscientious objectors are exempt from Sec. 17 as long as their religious beliefs do not allow them
to render RH service, pro bono or otherwise

PROCEDURAL

1. In this case, the Court is of the view that an actual case or controversy exists and that the same is ripe for
judicial determination. Considering that the RH Law and its implementing rules have already taken effect
and that budgetary measures to carry out the law have already been passed, it is evident that the subject
petitions present a justiciable controversy. As stated earlier, when an action of the legislative branch is
seriously alleged to have infringed the Constitution, it not only becomes a right, but also a duty of the
Judiciary to settle the dispute.

Moreover, the petitioners have shown that the case is so because medical practitioners or medical providers are
in danger of being criminally prosecuted under the RH Law for vague violations thereof, particularly public
health officers who are threatened to be dismissed from the service with forfeiture of retirement and other
benefits. They must, at least, be heard on the matter now.

2. In this jurisdiction, the application of doctrines originating from the U.S. has been generally maintained,
albeit with some modifications. While the Court has withheld the application of facial challenges to
strictly penal statues, it has expanded its scope to cover statutes not only regulating free speech, but also
those involving religious freedom, and other fundamental rights. The underlying reason for this
modification is simple. For unlike its counterpart in the U.S., this Court, under its expanded jurisdiction, is
mandated by the Fundamental Law 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 the
 Government. Verily, the framers of Our Constitution envisioned a proactive Judiciary, ever vigilant with
its duty to maintain the supremacy of the Constitution.

Consequently, considering that the foregoing petitions have seriously alleged that the constitutional human
rights to life, speech and religion and other fundamental rights mentioned above have been violated by the
assailed legislation, the Court has authority to take cognizance of these kindred petitions and to determine if
the RH Law can indeed pass constitutional scrutiny. To dismiss these petitions on the simple expedient that
there exist no actual case or controversy, would diminish this Court as a reactive branch of government, acting
only when the Fundamental Law has been transgressed, to the detriment of the Filipino people.

3. Even if the constitutionality of the RH Law may not be assailed through an as-applied challenge, still, the
Court has time and again acted liberally on the locus standi requirement. It has accorded certain
individuals standing to sue, not otherwise directly injured or with material interest affected by a
Government act, provided a constitutional issue of transcendental importance is invoked. The rule on
locus standi is, after all, a procedural technicality which the Court has, on more than one occasion, waived
or relaxed, thus allowing non-traditional plaintiffs, such as concerned citizens, taxpayers, voters or
legislators, to sue in the public interest, albeit they may not have been directly injured by the operation of
a law or any other government act.

The present action cannot be properly treated as a petition for prohibition, the transcendental importance of the
issues involved in this case warrants that the Court set aside the technical defects and take primary jurisdiction
over the petition at bar. One cannot deny that the issues raised herein have potentially pervasive influence on
the social and moral well being of this nation, specially the youth; hence, their proper and just determination is
an imperative need. This is in accordance with the well-entrenched principle that rules of procedure are not
inflexible tools designed to hinder or delay, but to facilitate and promote the administration of justice. Their
strict and rigid application, which would result in technicalities that tend to frustrate, rather than promote
substantial justice, must always be eschewed.

4. Most of the petitions are praying for injunctive reliefs and so the Court would just consider them as
petitions for prohibition under Rule 65, over which it has original jurisdiction. Where the case has far-
reaching implications and prays for injunctive reliefs, the Court may consider them as petitions for
prohibition under Rule 65.
5. The RH Law does not violate the one subject/one bill rule. In this case, a textual analysis of the various
provisions of the law shows that both reproductive health and responsible parenthood are interrelated
and germane to the overriding objective to control the population growth. As expressed in the first
paragraph of Section 2 of the RH Law:

SEC. 2. Declaration of Policy. The State recognizes and guarantees the human rights of all persons including
their right to equality and nondiscrimination of these rights, the right to sustainable human development, the
right to health which includes reproductive health, the right to education and information, and the right to
choose and make decisions for themselves in accordance with their religious convictions, ethics, cultural
beliefs, and the demands of responsible parenthood.
Considering the close intimacy between reproductive health and responsible parenthood which bears to the
attainment of the goal of achieving sustainable human development as stated under its terms, the Court finds
no reason to believe that Congress intentionally sought to deceive the public as to the contents of the assailed
legislation.
Accordingly, the Court declares R.A. No. 10354 as NOT UNCONSTITUTIONAL except with respect to the
following provisions which are declared UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision in the RH-IRR insofar as they: a) require private health facilities
and non-maternity specialty hospitals and hospitals owned and operated by a religious group to refer patients,
not in an emergency or life-threatening case, as defined under Republic Act No. 8344, to another health facility
which is conveniently accessible; and b) allow minor-parents or minors who have suffered a miscarriage
access to modem methods of family planning without written consent from their parents or guardian/s;
2) Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly Section 5 .24 thereof, insofar
as they punish any healthcare service provider who fails and or refuses to disseminate information regarding
programs and services on reproductive health regardless of his or her religious beliefs.
3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they allow a married
individual, not in an emergency or life-threatening case, as defined under Republic Act No. 8344, to undergo
reproductive health procedures without the consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they limit the requirement of
parental consent only to elective surgical procedures.
5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly Section 5.24 thereof, insofar
as they punish any healthcare service provider who fails and/or refuses to refer a patient not in an emergency
or life-threatening case, as defined under Republic Act No. 8344, to another health care service provider within
the same facility or one which is conveniently accessible regardless of his or her religious beliefs;
6) Section 23(b) and the corresponding provision in the RH-IRR, particularly Section 5 .24 thereof, insofar as
they punish any public officer who refuses to support reproductive health programs or shall do any act that
hinders the full implementation of a reproductive health program, regardless of his or her religious beliefs;
7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the rendering of pro bona
reproductive health service in so far as they affect the conscientious objector in securing PhilHealth
accreditation; and
8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier primarily in defining
abortifacients and contraceptives, as they are ultra vires and, therefore, null and void for contravening Section
4(a) of the RH Law and violating Section 12, Article II of the Constitution.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 166715 August 14, 2008

ABAKADA GURO PARTY LIST (formerly AASJS)1 OFFICERS/MEMBERS
SAMSON S. ALCANTARA, ED VINCENT S. ALBANO, ROMEO R.
ROBISO, RENE B. GOROSPE and EDWIN R. SANDOVAL, petitioners,
vs.
HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance,
HON. GUILLERMO L. PARAYNO, JR., in his capacity as Commissioner of
the Bureau of Internal Revenue, and HON. ALBERTO D. LINA, in his
Capacity as Commissioner of Bureau of Customs, respondents.

DECISION

CORONA, J.:

This petition for prohibition1 seeks to prevent respondents from implementing

and enforcing Republic Act (RA) 93352 (Attrition Act of 2005).

RA 9335 was enacted to optimize the revenue-generation capability and

collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs
(BOC). The law intends to encourage BIR and BOC officials and employees to
exceed their revenue targets by providing a system of rewards and sanctions
through the creation of a Rewards and Incentives Fund (Fund) and a Revenue
Performance Evaluation Board (Board).3 It covers all officials and employees
of the BIR and the BOC with at least six months of service, regardless of
employment status.4

The Fund is sourced from the collection of the BIR and the BOC in excess of
their revenue targets for the year, as determined by the Development Budget
and Coordinating Committee (DBCC). Any incentive or reward is taken from
the fund and allocated to the BIR and the BOC in proportion to their
contribution in the excess collection of the targeted amount of tax revenue.5

The Boards in the BIR and the BOC are composed of the Secretary of the
Department of Finance (DOF) or his/her Undersecretary, the Secretary of the
Department of Budget and Management (DBM) or his/her Undersecretary, the
Director General of the National Economic Development Authority (NEDA) or
his/her Deputy Director General, the Commissioners of the BIR and the BOC
or their Deputy Commissioners, two representatives from the rank-and-file
employees and a representative from the officials nominated by their
recognized organization.6

Each Board has the duty to (1) prescribe the rules and guidelines for the
allocation, distribution and release of the Fund; (2) set criteria and procedures
for removing from the service officials and employees whose revenue
collection falls short of the target; (3) terminate personnel in accordance with
the criteria adopted by the Board; (4) prescribe a system for performance
evaluation; (5) perform other functions, including the issuance of rules and
regulations and (6) submit an annual report to Congress.7

The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC)
were tasked to promulgate and issue the implementing rules and regulations
of RA 9335,8 to be approved by a Joint Congressional Oversight Committee
created for such purpose.9

Petitioners, invoking their right as taxpayers filed this petition challenging the
constitutionality of RA 9335, a tax reform legislation. They contend that, by
establishing a system of rewards and incentives, the law "transform[s] the
officials and employees of the BIR and the BOC into mercenaries and bounty
hunters" as they will do their best only in consideration of such rewards. Thus,
the system of rewards and incentives invites corruption and undermines the
constitutionally mandated duty of these officials and employees to serve the
people with utmost responsibility, integrity, loyalty and efficiency.

Petitioners also claim that limiting the scope of the system of rewards and
incentives only to officials and employees of the BIR and the BOC violates the
constitutional guarantee of equal protection. There is no valid basis for
classification or distinction as to why such a system should not apply to
officials and employees of all other government agencies.

In addition, petitioners assert that the law unduly delegates the power to fix
revenue targets to the President as it lacks a sufficient standard on that
matter. While Section 7(b) and (c) of RA 9335 provides that BIR and BOC
officials may be dismissed from the service if their revenue collections fall
short of the target by at least 7.5%, the law does not, however, fix the revenue
targets to be achieved. Instead, the fixing of revenue targets has been
delegated to the President without sufficient standards. It will therefore be
easy for the President to fix an unrealistic and unattainable target in order to
dismiss BIR or BOC personnel.

Finally, petitioners assail the creation of a congressional oversight committee

on the ground that it violates the doctrine of separation of powers. While the
legislative function is deemed accomplished and completed upon the
enactment and approval of the law, the creation of the congressional oversight
committee permits legislative participation in the implementation and
enforcement of the law.
In their comment, respondents, through the Office of the Solicitor General,
question the petition for being premature as there is no actual case or
controversy yet. Petitioners have not asserted any right or claim that will
necessitate the exercise of this Courts jurisdiction. Nevertheless, respondents
acknowledge that public policy requires the resolution of the constitutional
issues involved in this case. They assert that the allegation that the reward
system will breed mercenaries is mere speculation and does not suffice to
invalidate the law. Seen in conjunction with the declared objective of RA 9335,
the law validly classifies the BIR and the BOC because the functions they
perform are distinct from those of the other government agencies and
instrumentalities. Moreover, the law provides a sufficient standard that will
guide the executive in the implementation of its provisions. Lastly, the creation
of the congressional oversight committee under the law enhances, rather than
violates, separation of powers. It ensures the fulfillment of the legislative policy
and serves as a check to any over-accumulation of power on the part of the
executive and the implementing agencies.

After a careful consideration of the conflicting contentions of the parties, the

Court finds that petitioners have failed to overcome the presumption of
constitutionality in favor of RA 9335, except as shall hereafter be discussed.

Actual Case And Ripeness

An actual case or controversy involves a conflict of legal rights, an assertion of

opposite legal claims susceptible of judicial adjudication.10 A closely related
requirement is ripeness, that is, the question must be ripe for adjudication.
And a constitutional question is ripe for adjudication when the governmental
act being challenged has a direct adverse effect on the individual challenging
it.11Thus, to be ripe for judicial adjudication, the petitioner must show a
personal stake in the outcome of the case or an injury to himself that can be
redressed by a favorable decision of the Court.12

In this case, aside from the general claim that the dispute has ripened into a
judicial controversy by the mere enactment of the law even without any further
overt act,13 petitioners fail either to assert any specific and concrete legal
claim or to demonstrate any direct adverse effect of the law on them. They are
unable to show a personal stake in the outcome of this case or an injury to
themselves. On this account, their petition is procedurally infirm.

This notwithstanding, public interest requires the resolution of the

constitutional issues raised by petitioners. The grave nature of their
allegations tends to cast a cloud on the presumption of constitutionality in
favor of the law. And where an action of the legislative branch is alleged to
have infringed the Constitution, it becomes not only the right but in fact the
duty of the judiciary to settle the dispute.14

Accountability of
Public Officers

Section 1, Article 11 of the Constitution states:

Sec. 1. Public office is a public trust. 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.

Public office is a public trust. It must be discharged by its holder not for his
own personal gain but for the benefit of the public for whom he holds it in trust.
By demanding accountability and service with responsibility, integrity, loyalty,
efficiency, patriotism and justice, all government officials and employees have
the duty to be responsive to the needs of the people they are called upon to
serve.

Public officers enjoy the presumption of regularity in the performance of their

duties. This presumption necessarily obtains in favor of BIR and BOC officials
and employees. RA 9335 operates on the basis thereof and reinforces it by
providing a system of rewards and sanctions for the purpose of encouraging
the officials and employees of the BIR and the BOC to exceed their revenue
targets and optimize their revenue-generation capability and collection.15

The presumption is disputable but proof to the contrary is required to rebut it.
It cannot be overturned by mere conjecture or denied in advance (as
petitioners would have the Court do) specially in this case where it is an
underlying principle to advance a declared public policy.

Petitioners claim that the implementation of RA 9335 will turn BIR and BOC
officials and employees into "bounty hunters and mercenaries" is not only
without any factual and legal basis; it is also purely speculative.

A law enacted by Congress enjoys the strong presumption of constitutionality.

To justify its nullification, there must be a clear and unequivocal breach of the
Constitution, not a doubtful and equivocal one.16 To invalidate RA 9335 based
on petitioners baseless supposition is an affront to the wisdom not only of the
legislature that passed it but also of the executive which approved it.
Public service is its own reward. Nevertheless, public officers may by law be
rewarded for exemplary and exceptional performance. A system of incentives
for exceeding the set expectations of a public office is not anathema to the
concept of public accountability. In fact, it recognizes and reinforces
dedication to duty, industry, efficiency and loyalty to public service of
deserving government personnel.

In United States v. Matthews,17 the U.S. Supreme Court validated a law which
awards to officers of the customs as well as other parties an amount not
exceeding one-half of the net proceeds of forfeitures in violation of the laws
against smuggling. Citing Dorsheimer v. United States,18 the U.S. Supreme
Court said:

The offer of a portion of such penalties to the collectors is to stimulate

and reward their zeal and industry in detecting fraudulent attempts to
evade payment of duties and taxes.

In the same vein, employees of the BIR and the BOC may by law be entitled
to a reward when, as a consequence of their zeal in the enforcement of tax
and customs laws, they exceed their revenue targets. In addition, RA 9335
establishes safeguards to ensure that the reward will not be claimed if it will
be either the fruit of "bounty hunting or mercenary activity" or the product of
the irregular performance of official duties. One of these precautionary
measures is embodied in Section 8 of the law:

SEC. 8. Liability of Officials, Examiners and Employees of the BIR and

the BOC. The officials, examiners, and employees of the [BIR] and the
[BOC] who violate this Act or who are guilty of negligence, abuses or
acts of malfeasance or misfeasance or fail to exercise extraordinary
diligence in the performance of their duties shall be held liable for any
loss or injury suffered by any business establishment or taxpayer as a
result of such violation, negligence, abuse, malfeasance, misfeasance
or failure to exercise extraordinary diligence.

Equal Protection

Equality guaranteed under the equal protection clause is equality under the
same conditions and among persons similarly situated; it is equality among
equals, not similarity of treatment of persons who are classified based on
substantial differences in relation to the object to be accomplished.19When
things or persons are different in fact or circumstance, they may be treated in
law differently. In Victoriano v. Elizalde Rope Workers Union,20 this Court
declared:

The guaranty of equal protection of the laws is not a guaranty of equality

in the application of the laws upon all citizens of the [S]tate. It is not,
therefore, a requirement, in order to avoid the constitutional prohibition
against inequality, that every man, woman and child should be affected
alike by a statute. Equality of operation of statutes does not mean
indiscriminate operation on persons merely as such, but on persons
according to the circumstances surrounding them. It guarantees
equality, not identity of rights. The Constitution does not require that
things which are different in fact be treated in law as though they
were the same. The equal protection clause does not forbid
discrimination as to things that are different. It does not prohibit
legislation which is limited either in the object to which it is
directed or by the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows

classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain particulars. A
law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying that the
mere fact of inequality in no manner determines the matter of
constitutionality. All that is required of a valid classification is that it
be reasonable, which means that the classification should be
based on substantial distinctions which make for real differences,
that it must be germane to the purpose of the law; that it must not
be limited to existing conditions only; and that it must apply
equally to each member of the class. This Court has held that the
standard is satisfied if the classification or distinction is based on
a reasonable foundation or rational basis and is not palpably
arbitrary.

In the exercise of its power to make classifications for the purpose of

enacting laws over matters within its jurisdiction, the state is recognized
as enjoying a wide range of discretion. It is not necessary that the
classification be based on scientific or marked differences of things or in
their relation. Neither is it necessary that the classification be made with
mathematical nicety. Hence, legislative classification may in many
cases properly rest on narrow distinctions, for the equal protection
guaranty does not preclude the legislature from recognizing degrees of
 evil or harm, and legislation is addressed to evils as they may
appear.21 (emphasis supplied)

The equal protection clause recognizes a valid classification, that is, a

classification that has a reasonable foundation or rational basis and not
arbitrary.22 With respect to RA 9335, its expressed public policy is the
optimization of the revenue-generation capability and collection of the BIR and
the BOC.23 Since the subject of the law is the revenue- generation capability
and collection of the BIR and the BOC, the incentives and/or sanctions
provided in the law should logically pertain to the said agencies. Moreover, the
law concerns only the BIR and the BOC because they have the common
distinct primary function of generating revenues for the national government
through the collection of taxes, customs duties, fees and charges.

The BIR performs the following functions:

Sec. 18. The Bureau of Internal Revenue. The Bureau of Internal

Revenue, which shall be headed by and subject to the supervision and
control of the Commissioner of Internal Revenue, who shall be
appointed by the President upon the recommendation of the Secretary
[of the DOF], shall have the following functions:

(1) Assess and collect all taxes, fees and charges and account for
all revenues collected;

(2) Exercise duly delegated police powers for the proper performance of
its functions and duties;

(3) Prevent and prosecute tax evasions and all other illegal economic
activities;

(4) Exercise supervision and control over its constituent and subordinate
units; and

(5) Perform such other functions as may be provided by law.24

xxx xxx xxx (emphasis supplied)

On the other hand, the BOC has the following functions:

Sec. 23. The Bureau of Customs. The Bureau of Customs which shall
be headed and subject to the management and control of the
 Commissioner of Customs, who shall be appointed by the President
upon the recommendation of the Secretary[of the DOF] and hereinafter
referred to as Commissioner, shall have the following functions:

(1) Collect custom duties, taxes and the corresponding fees,

charges and penalties;

(2) Account for all customs revenues collected;

(3) Exercise police authority for the enforcement of tariff and customs
laws;

(4) Prevent and suppress smuggling, pilferage and all other economic
frauds within all ports of entry;

(5) Supervise and control exports, imports, foreign mails and the
clearance of vessels and aircrafts in all ports of entry;

(6) Administer all legal requirements that are appropriate;

(7) Prevent and prosecute smuggling and other illegal activities in all
ports under its jurisdiction;

(8) Exercise supervision and control over its constituent units;

(9) Perform such other functions as may be provided by law.25

xxx xxx xxx (emphasis supplied)

Both the BIR and the BOC are bureaus under the DOF. They principally
perform the special function of being the instrumentalities through which the
State exercises one of its great inherent functions taxation. Indubitably, such
substantial distinction is germane and intimately related to the purpose of the
law. Hence, the classification and treatment accorded to the BIR and the BOC
under RA 9335 fully satisfy the demands of equal protection.

Undue Delegation

Two tests determine the validity of delegation of legislative power: (1) the
completeness test and (2) the sufficient standard test. A law is complete when
it sets forth therein the policy to be executed, carried out or implemented by
the delegate.26 It lays down a sufficient standard when it provides adequate
guidelines or limitations in the law to map out the boundaries of the delegates
authority and prevent the delegation from running riot.27 To be sufficient, the
standard must specify the limits of the delegates authority, announce the
legislative policy and identify the conditions under which it is to be
implemented.28

RA 9335 adequately states the policy and standards to guide the President in
fixing revenue targets and the implementing agencies in carrying out the
provisions of the law. Section 2 spells out the policy of the law:

SEC. 2. Declaration of Policy. It is the policy of the State to optimize

the revenue-generation capability and collection of the Bureau of
Internal Revenue (BIR) and the Bureau of Customs (BOC) by providing
for a system of rewards and sanctions through the creation of a
Rewards and Incentives Fund and a Revenue Performance Evaluation
Board in the above agencies for the purpose of encouraging their
officials and employees to exceed their revenue targets.

Section 4 "canalized within banks that keep it from overflowing"29 the

delegated power to the President to fix revenue targets:

SEC. 4. Rewards and Incentives Fund. A Rewards and Incentives

Fund, hereinafter referred to as the Fund, is hereby created, to be
sourced from the collection of the BIR and the BOC in excess of their
respective revenue targets of the year, as determined by the
Development Budget and Coordinating Committee (DBCC), in the
following percentages:

Excess of Collection of the Percent (%) of the Excess Collection to

Excess the Revenue Targets Accrue to the Fund
30% or below 15%
More than 30% 15% of the first 30% plus 20% of the
remaining excess

The Fund shall be deemed automatically appropriated the year

immediately following the year when the revenue collection target was
exceeded and shall be released on the same fiscal year.

Revenue targets shall refer to the original estimated revenue

collection expected of the BIR and the BOC for a given fiscal year
as stated in the Budget of Expenditures and Sources of Financing
(BESF) submitted by the President to Congress. The BIR and the
BOC shall submit to the DBCC the distribution of the agencies revenue
 targets as allocated among its revenue districts in the case of the BIR,
and the collection districts in the case of the BOC.

xxx xxx xxx (emphasis supplied)

Revenue targets are based on the original estimated revenue collection

expected respectively of the BIR and the BOC for a given fiscal year as
approved by the DBCC and stated in the BESF submitted by the President to
Congress.30 Thus, the determination of revenue targets does not rest solely
on the President as it also undergoes the scrutiny of the DBCC.

On the other hand, Section 7 specifies the limits of the Boards authority and
identifies the conditions under which officials and employees whose revenue
collection falls short of the target by at least 7.5% may be removed from the
service:

SEC. 7. Powers and Functions of the Board. The Board in the agency
shall have the following powers and functions:

xxx xxx xxx

(b) To set the criteria and procedures for removing from service
officials and employees whose revenue collection falls short of the
target by at least seven and a half percent (7.5%), with due
consideration of all relevant factors affecting the level of
collection as provided in the rules and regulations promulgated under
this Act, subject to civil service laws, rules and regulations and
compliance with substantive and procedural due process:
Provided, That the following exemptions shall apply:

1. Where the district or area of responsibility is newly-created, not

exceeding two years in operation, as has no historical record of
collection performance that can be used as basis for evaluation;
and

2. Where the revenue or customs official or employee is a recent

transferee in the middle of the period under consideration unless
the transfer was due to nonperformance of revenue targets or
potential nonperformance of revenue targets: Provided, however,
That when the district or area of responsibility covered by revenue
or customs officials or employees has suffered from economic
difficulties brought about by natural calamities or force majeure or
 economic causes as may be determined by the Board,
termination shall be considered only after careful and proper
review by the Board.

(c) To terminate personnel in accordance with the criteria adopted in the

preceding paragraph: Provided, That such decision shall be immediately
executory: Provided, further, That the application of the criteria for
the separation of an official or employee from service under this
Act shall be without prejudice to the application of other relevant
laws on accountability of public officers and employees, such as
the Code of Conduct and Ethical Standards of Public Officers and
Employees and the Anti-Graft and Corrupt Practices Act;

xxx xxx xxx (emphasis supplied)

Clearly, RA 9335 in no way violates the security of tenure of officials and

employees of the BIR and the BOC. The guarantee of security of tenure only
means that an employee cannot be dismissed from the service for causes
other than those provided by law and only after due process is accorded the
employee.31 In the case of RA 9335, it lays down a reasonable yardstick for
removal (when the revenue collection falls short of the target by at least 7.5%)
with due consideration of all relevant factors affecting the level of collection.
This standard is analogous to inefficiency and incompetence in the
performance of official duties, a ground for disciplinary action under civil
service laws.32 The action for removal is also subject to civil service laws,
rules and regulations and compliance with substantive and procedural due
process.

At any rate, this Court has recognized the following as sufficient standards:
"public interest," "justice and equity," "public convenience and welfare" and
"simplicity, economy and welfare."33 In this case, the declared policy of
optimization of the revenue-generation capability and collection of the BIR and
the BOC is infused with public interest.

Separation Of Powers

Section 12 of RA 9335 provides:

SEC. 12. Joint Congressional Oversight Committee. There is hereby

created a Joint Congressional Oversight Committee composed of seven
Members from the Senate and seven Members from the House of
Representatives. The Members from the Senate shall be appointed by
 the Senate President, with at least two senators representing the
minority. The Members from the House of Representatives shall be
appointed by the Speaker with at least two members representing the
minority. After the Oversight Committee will have approved the
implementing rules and regulations (IRR) it shall thereafter
become functus officio and therefore cease to exist.

The Joint Congressional Oversight Committee in RA 9335 was created for the
purpose of approving the implementing rules and regulations (IRR) formulated
by the DOF, DBM, NEDA, BIR, BOC and CSC. On May 22, 2006, it approved
the said IRR. From then on, it became functus officio and ceased to exist.
Hence, the issue of its alleged encroachment on the executive function of
implementing and enforcing the law may be considered moot and academic.

This notwithstanding, this might be as good a time as any for the Court to
confront the issue of the constitutionality of the Joint Congressional Oversight
Committee created under RA 9335 (or other similar laws for that matter).

The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the
concept of congressional oversight in Macalintal v. Commission on
Elections34 is illuminating:

Concept and bases of congressional oversight

Broadly defined, the power of oversight embraces all activities

undertaken by Congress to enhance its understanding of and
influence over the implementation of legislation it has enacted.
Clearly, oversight concerns post-enactment measures undertaken
by Congress: (a) to monitor bureaucratic compliance with program
objectives, (b) to determine whether agencies are properly
administered, (c) to eliminate executive waste and dishonesty, (d)
to prevent executive usurpation of legislative authority, and (d) to
assess executive conformity with the congressional perception of
public interest.

The power of oversight has been held to be intrinsic in the grant of

legislative power itself and integral to the checks and balances inherent
in a democratic system of government. x x x x x x x x x

Over the years, Congress has invoked its oversight power with
increased frequency to check the perceived "exponential accumulation
of power" by the executive branch. By the beginning of the 20th century,
Congress has delegated an enormous amount of legislative authority to
the executive branch and the administrative agencies. Congress, thus,
uses its oversight power to make sure that the administrative agencies
perform their functions within the authority delegated to them. x x x x x x
xxx

Categories of congressional oversight functions

The acts done by Congress purportedly in the exercise of its oversight

powers may be divided into three categories,
namely: scrutiny, investigation and supervision.

a. Scrutiny

Congressional scrutiny implies a lesser intensity and continuity of

attention to administrative operations. Its primary purpose is to
determine economy and efficiency of the operation of government
activities. In the exercise of legislative scrutiny, Congress may
request information and report from the other branches of
government. It can give recommendations or pass resolutions for
consideration of the agency involved.

xxx xxx xxx

b. Congressional investigation

While congressional scrutiny is regarded as a passive process of

looking at the facts that are readily available, congressional
investigation involves a more intense digging of facts. The power
of Congress to conduct investigation is recognized by the 1987
Constitution under section 21, Article VI, xxx xxx xxx

c. Legislative supervision

The third and most encompassing form by which Congress exercises its
oversight power is thru legislative supervision. "Supervision" connotes a
continuing and informed awareness on the part of a congressional
committee regarding executive operations in a given administrative
area. While both congressional scrutiny and investigation involve inquiry
into past executive branch actions in order to influence future executive
branch performance, congressional supervision allows Congress to
scrutinize the exercise of delegated law-making authority, and permits
Congress to retain part of that delegated authority.

Congress exercises supervision over the executive agencies through its

veto power. It typically utilizes veto provisions when granting the
President or an executive agency the power to promulgate regulations
with the force of law. These provisions require the President or an
agency to present the proposed regulations to Congress, which retains
a "right" to approve or disapprove any regulation before it takes
effect. Such legislative veto provisions usually provide that a proposed
regulation will become a law after the expiration of a certain period of
time, only if Congress does not affirmatively disapprove of the regulation
in the meantime. Less frequently, the statute provides that a proposed
regulation will become law if Congress affirmatively approves it.

Supporters of legislative veto stress that it is necessary to maintain the

balance of power between the legislative and the executive branches of
government as it offers lawmakers a way to delegate vast power to the
executive branch or to independent agencies while retaining the option
to cancel particular exercise of such power without having to pass new
legislation or to repeal existing law. They contend that this arrangement
promotes democratic accountability as it provides legislative check on
the activities of unelected administrative agencies. One proponent thus
explains:

It is too late to debate the merits of this delegation policy: the

policy is too deeply embedded in our law and practice. It suffices
to say that the complexities of modern government have often led
Congress-whether by actual or perceived necessity- to legislate
by declaring broad policy goals and general statutory standards,
leaving the choice of policy options to the discretion of an
executive officer. Congress articulates legislative aims, but leaves
their implementation to the judgment of parties who may or may
not have participated in or agreed with the development of those
aims. Consequently, absent safeguards, in many instances the
reverse of our constitutional scheme could be effected: Congress
proposes, the Executive disposes. One safeguard, of course, is
the legislative power to enact new legislation or to change existing
law. But without some means of overseeing post enactment
activities of the executive branch, Congress would be unable to
determine whether its policies have been implemented in
 accordance with legislative intent and thus whether legislative
intervention is appropriate.

Its opponents, however, criticize the legislative veto as undue

encroachment upon the executive prerogatives. They urge that any
post-enactment measures undertaken by the legislative branch
should be limited to scrutiny and investigation; any measure
beyond that would undermine the separation of powers
guaranteed by the Constitution. They contend that legislative veto
constitutes an impermissible evasion of the Presidents veto authority
and intrusion into the powers vested in the executive or judicial
branches of government. Proponents counter that legislative veto
enhances separation of powers as it prevents the executive branch and
independent agencies from accumulating too much power. They submit
that reporting requirements and congressional committee investigations
allow Congress to scrutinize only the exercise of delegated law-making
authority. They do not allow Congress to review executive proposals
before they take effect and they do not afford the opportunity for
ongoing and binding expressions of congressional intent. In contrast,
legislative veto permits Congress to participate prospectively in the
approval or disapproval of "subordinate law" or those enacted by the
executive branch pursuant to a delegation of authority by Congress.
They further argue that legislative veto "is a necessary response by
Congress to the accretion of policy control by forces outside its
chambers." In an era of delegated authority, they point out that
legislative veto "is the most efficient means Congress has yet devised to
retain control over the evolution and implementation of its policy as
declared by statute."

In Immigration and Naturalization Service v. Chadha, the U.S. Supreme

Court resolved the validity of legislative veto provisions. The case
arose from the order of the immigration judge suspending the
deportation of Chadha pursuant to 244(c)(1) of the Immigration and
Nationality Act. The United States House of Representatives passed a
resolution vetoing the suspension pursuant to 244(c)(2) authorizing
either House of Congress, by resolution, to invalidate the decision of the
executive branch to allow a particular deportable alien to remain in the
United States. The immigration judge reopened the deportation
proceedings to implement the House order and the alien was ordered
deported. The Board of Immigration Appeals dismissed the aliens
appeal, holding that it had no power to declare unconstitutional an act of
 Congress. The United States Court of Appeals for Ninth Circuit held that
the House was without constitutional authority to order the aliens
deportation and that 244(c)(2) violated the constitutional doctrine on
separation of powers.

On appeal, the U.S. Supreme Court declared 244(c)(2)

unconstitutional. But the Court shied away from the issue of
separation of powers and instead held that the provision violates the
presentment clause and bicameralism. It held that the one-house veto
was essentially legislative in purpose and effect. As such, it is subject to
the procedures set out in Article I of the Constitution requiring the
passage by a majority of both Houses and presentment to the
President. x x x x x x x x x

Two weeks after the Chadha decision, the Court upheld, in

memorandum decision, two lower court decisions invalidating the
legislative veto provisions in the Natural Gas Policy Act of 1978 and the
Federal Trade Commission Improvement Act of 1980. Following this
precedence, lower courts invalidated statutes containing legislative veto
provisions although some of these provisions required the approval of
both Houses of Congress and thus met the bicameralism requirement of
Article I. Indeed, some of these veto provisions were not even
exercised.35(emphasis supplied)

In Macalintal, given the concept and configuration of the power of

congressional oversight and considering the nature and powers of a
constitutional body like the Commission on Elections, the Court struck down
the provision in RA 9189 (The Overseas Absentee Voting Act of 2003)
creating a Joint Congressional Committee. The committee was tasked not
only to monitor and evaluate the implementation of the said law but also to
review, revise, amend and approve the IRR promulgated by the Commission
on Elections. The Court held that these functions infringed on the
constitutional independence of the Commission on Elections.36

With this backdrop, it is clear that congressional oversight is not

unconstitutional per se, meaning, it neither necessarily constitutes an
encroachment on the executive power to implement laws nor undermines the
constitutional separation of powers. Rather, it is integral to the checks and
balances inherent in a democratic system of government. It may in fact even
enhance the separation of powers as it prevents the over-accumulation of
power in the executive branch.
However, to forestall the danger of congressional encroachment "beyond the
legislative sphere," the Constitution imposes two basic and related constraints
on Congress.37 It may not vest itself, any of its committees or its members
with either executive or judicial power.38 And, when it exercises its legislative
power, it must follow the "single, finely wrought and exhaustively considered,
procedures" specified under the Constitution,39 including the procedure for
enactment of laws and presentment.

Thus, any post-enactment congressional measure such as this should be

limited to scrutiny and investigation. In particular, congressional oversight
must be confined to the following:

(1) scrutiny based primarily on Congress power of appropriation and

the budget hearings conducted in connection with it, its power to ask
heads of departments to appear before and be heard by either of its
Houses on any matter pertaining to their departments and its power of
confirmation40 and

(2) investigation and monitoring41 of the implementation of laws

pursuant to the power of Congress to conduct inquiries in aid of
legislation.42

Any action or step beyond that will undermine the separation of powers
guaranteed by the Constitution. Legislative vetoes fall in this class.

Legislative veto is a statutory provision requiring the President or an

administrative agency to present the proposed implementing rules and
regulations of a law to Congress which, by itself or through a committee
formed by it, retains a "right" or "power" to approve or disapprove such
regulations before they take effect. As such, a legislative veto in the form of a
congressional oversight committee is in the form of an inward-turning
delegation designed to attach a congressional leash (other than through
scrutiny and investigation) to an agency to which Congress has by law initially
delegated broad powers.43 It radically changes the design or structure of the
Constitutions diagram of power as it entrusts to Congress a direct role in
enforcing, applying or implementing its own laws.44

Congress has two options when enacting legislation to define national policy
within the broad horizons of its legislative competence.45 It can itself formulate
the details or it can assign to the executive branch the responsibility for
making necessary managerial decisions in conformity with those
standards.46 In the latter case, the law must be complete in all its essential
terms and conditions when it leaves the hands of the legislature.47 Thus, what
is left for the executive branch or the concerned administrative agency when it
formulates rules and regulations implementing the law is to fill up details
(supplementary rule-making) or ascertain facts necessary to bring the law into
actual operation (contingent rule-making).48

Administrative regulations enacted by administrative agencies to implement

and interpret the law which they are entrusted to enforce have the force of law
and are entitled to respect.49 Such rules and regulations partake of the nature
of a statute50 and are just as binding as if they have been written in the statute
itself. As such, they have the force and effect of law and enjoy the
presumption of constitutionality and legality until they are set aside with finality
in an appropriate case by a competent court.51 Congress, in the guise of
assuming the role of an overseer, may not pass upon their legality by
subjecting them to its stamp of approval without disturbing the calculated
balance of powers established by the Constitution. In exercising discretion to
approve or disapprove the IRR based on a determination of whether or not
they conformed with the provisions of RA 9335, Congress arrogated judicial
power unto itself, a power exclusively vested in this Court by the Constitution.

Considered Opinion of
Mr. Justice Dante O. Tinga

Moreover, the requirement that the implementing rules of a law be subjected

to approval by Congress as a condition for their effectivity violates the cardinal
constitutional principles of bicameralism and the rule on presentment.52

Section 1, Article VI of the Constitution states:

Section 1. The legislative power shall be vested in the Congress of

the Philippines which shall consist of a Senate and a House of
Representatives, except to the extent reserved to the people by the
provision on initiative and referendum. (emphasis supplied)

Legislative power (or the power to propose, enact, amend and repeal
laws)53 is vested in Congress which consists of two chambers, the Senate and
the House of Representatives. A valid exercise of legislative power requires
the act of both chambers. Corrollarily, it can be exercised neither solely by
one of the two chambers nor by a committee of either or both chambers.
Thus, assuming the validity of a legislative veto, both a single-chamber
legislative veto and a congressional committee legislative veto are invalid.
Additionally, Section 27(1), Article VI of the Constitution provides:

Section 27. (1) Every bill passed by the Congress shall, before it
becomes a law, be presented to the President. If he approves the
same, he shall sign it, otherwise, he shall veto it and return the same
with his objections to the House where it originated, which shall enter
the objections at large in its Journal and proceed to reconsider it. If,
after such reconsideration, two-thirds of all the Members of such House
shall agree to pass the bill, it shall be sent, together with the objections,
to the other House by which it shall likewise be reconsidered, and if
approved by two-thirds of all the Members of that House, it shall
become a law. In all such cases, the votes of each House shall be
determined by yeas or nays, and the names of the members voting for
or against shall be entered in its Journal. The President shall
communicate his veto of any bill to the House where it originated within
thirty days after the date of receipt thereof; otherwise, it shall become a
law as if he had signed it. (emphasis supplied)

Every bill passed by Congress must be presented to the President for

approval or veto. In the absence of presentment to the President, no bill
passed by Congress can become a law. In this sense, law-making under the
Constitution is a joint act of the Legislature and of the Executive. Assuming
that legislative veto is a valid legislative act with the force of law, it cannot take
effect without such presentment even if approved by both chambers of
Congress.

In sum, two steps are required before a bill becomes a law. First, it must be
approved by both Houses of Congress.54 Second, it must be presented to and
approved by the President.55 As summarized by Justice Isagani Cruz56 and Fr.
Joaquin G. Bernas, S.J.57, the following is the procedure for the approval of
bills:

A bill is introduced by any member of the House of Representatives or

the Senate except for some measures that must originate only in the
former chamber.

The first reading involves only a reading of the number and title of the
measure and its referral by the Senate President or the Speaker to the
proper committee for study.

The bill may be "killed" in the committee or it may be recommended for

approval, with or without amendments, sometimes after public hearings
 are first held thereon. If there are other bills of the same nature or
purpose, they may all be consolidated into one bill under common
authorship or as a committee bill.

Once reported out, the bill shall be calendared for second reading. It is
at this stage that the bill is read in its entirety, scrutinized, debated upon
and amended when desired. The second reading is the most important
stage in the passage of a bill.

The bill as approved on second reading is printed in its final form and
copies thereof are distributed at least three days before the third
reading. On the third reading, the members merely register their votes
and explain them if they are allowed by the rules. No further debate is
allowed.

Once the bill passes third reading, it is sent to the other chamber, where
it will also undergo the three readings. If there are differences between
the versions approved by the two chambers, a conference
committee58 representing both Houses will draft a compromise measure
that if ratified by the Senate and the House of Representatives will then
be submitted to the President for his consideration.

The bill is enrolled when printed as finally approved by the Congress,

thereafter authenticated with the signatures of the Senate President, the
Speaker, and the Secretaries of their respective chambers59

The Presidents role in law-making.

The final step is submission to the President for approval. Once

approved, it takes effect as law after the required publication.60

Where Congress delegates the formulation of rules to implement the law it

has enacted pursuant to sufficient standards established in the said law, the
law must be complete in all its essential terms and conditions when it leaves
the hands of the legislature. And it may be deemed to have left the hands of
the legislature when it becomes effective because it is only upon effectivity of
the statute that legal rights and obligations become available to those entitled
by the language of the statute. Subject to the indispensable requisite of
publication under the due process clause,61 the determination as to when a
law takes effect is wholly the prerogative of Congress.62 As such, it is only
upon its effectivity that a law may be executed and the executive branch
acquires the duties and powers to execute the said law. Before that point, the
role of the executive branch, particularly of the President, is limited to
approving or vetoing the law.63

From the moment the law becomes effective, any provision of law that
empowers Congress or any of its members to play any role in the
implementation or enforcement of the law violates the principle of separation
of powers and is thus unconstitutional. Under this principle, a provision that
requires Congress or its members to approve the implementing rules of a law
after it has already taken effect shall be unconstitutional, as is a provision that
allows Congress or its members to overturn any directive or ruling made by
the members of the executive branch charged with the implementation of the
law.

Following this rationale, Section 12 of RA 9335 should be struck down as

unconstitutional. While there may be similar provisions of other laws that may
be invalidated for failure to pass this standard, the Court refrains from
invalidating them wholesale but will do so at the proper time when an
appropriate case assailing those provisions is brought before us.64

The next question to be resolved is: what is the effect of the unconstitutionality
of Section 12 of RA 9335 on the other provisions of the law? Will it render the
entire law unconstitutional? No.

Section 13 of RA 9335 provides:

SEC. 13. Separability Clause. If any provision of this Act is declared

invalid by a competent court, the remainder of this Act or any provision
not affected by such declaration of invalidity shall remain in force and
effect.

In Tatad v. Secretary of the Department of Energy,65 the Court laid down the
following rules:

The general rule is that where part of a statute is void as repugnant to

the Constitution, while another part is valid, the valid portion, if
separable from the invalid, may stand and be enforced. The presence of
a separability clause in a statute creates the presumption that the
legislature intended separability, rather than complete nullity of the
statute. To justify this result, the valid portion must be so far
independent of the invalid portion that it is fair to presume that the
legislature would have enacted it by itself if it had supposed that it could
not constitutionally enact the other. Enough must remain to make a
 complete, intelligible and valid statute, which carries out the legislative
intent. x x x

The exception to the general rule is that when the parts of a 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, the nullity of one part will
vitiate the rest. In making the parts of the statute dependent, conditional,
or connected with one another, the legislature intended the statute to be
carried out as a whole and would not have enacted it if one part is void,
in which case if some parts are unconstitutional, all the other provisions
thus dependent, conditional, or connected must fall with them.

The separability clause of RA 9335 reveals the intention of the legislature to

isolate and detach any invalid provision from the other provisions so that the
latter may continue in force and effect. The valid portions can stand
independently of the invalid section. Without Section 12, the remaining
provisions still constitute a complete, intelligible and valid law which carries
out the legislative intent to optimize the revenue-generation capability and
collection of the BIR and the BOC by providing for a system of rewards and
sanctions through the Rewards and Incentives Fund and a Revenue
Performance Evaluation Board.

To be effective, administrative rules and regulations must be published in full if

their purpose is to enforce or implement existing law pursuant to a valid
delegation. The IRR of RA 9335 were published on May 30, 2006 in two
newspapers of general circulation66 and became effective 15 days
thereafter.67 Until and unless the contrary is shown, the IRR are presumed
valid and effective even without the approval of the Joint Congressional
Oversight Committee.

WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of

RA 9335 creating a Joint Congressional Oversight Committee to approve the
implementing rules and regulations of the law is
declared UNCONSTITUTIONAL and therefore NULL and VOID. The
constitutionality of the remaining provisions of RA 9335 is UPHELD. Pursuant
to Section 13 of RA 9335, the rest of the provisions remain in force and effect.

SO ORDERED.
Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona,
Carpio-Morales, Azcuna, Tinga, Chico-Nazario, Velasco, Jr., Nachura, Reyes,
Leonardo-de-Castro, Brion, JJ., concur.

ABAKADA Guro Party List vs Purisima

undue delegation of power; separation of power

ABAKADA GURO PARTY LIST VS PURISIMA

G.R. No. 166715 August 14, 2008
ABAKADA GURO PARTY LIST (formerly AASJS)1 OFFICERS/MEMBERS SAMSON S. ALCANTARA,
ED VINCENT S. ALBANO, ROMEO R. ROBISO, RENE B. GOROSPE and EDWIN R. SANDOVAL,
petitioners,
vs.
HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance, HON. GUILLERMO L. PARAYNO,
JR., in his capacity as Commissioner of the Bureau of Internal Revenue, and HON. ALBERTO D. LINA, in
his Capacity as Commissioner of Bureau of Customs, respondents.

Facts:
Petitioners seeks to prevent respondents from implementing and enforcing Republic Act (RA) 9335. R.A. 9335
was enacted to optimize the revenue-generation capability and collection of the Bureau of Internal Revenue
(BIR) and the Bureau of Customs (BOC). The law intends to encourage BIR and BOC officials and employees
to exceed their revenue targets by providing a system of rewards and sanctions through the creation of a
Rewards and Incentives Fund (Fund) and a Revenue Performance Evaluation Board (Board). It covers all
officials and employees of the BIR and the BOC with at least six months of service, regardless of employment
status.
Petitioners, invoking their right as taxpayers filed this petition challenging the constitutionality of RA 9335, a
tax reform legislation. They contend that, by establishing a system of rewards and incentives, the law
transforms the officials and employees of the BIR and the BOC into mercenaries and bounty hunters as they
will do their best only in consideration of such rewards. Thus, the system of rewards and incentives invites
corruption and undermines the constitutionally mandated duty of these officials and employees to serve the
people with utmost responsibility, integrity, loyalty and efficiency.
Petitioners also claim that limiting the scope of the system of rewards and incentives only to officials and
employees of the BIR and the BOC violates the constitutional guarantee of equal protection. There is no valid
basis for classification or distinction as to why such a system should not apply to officials and employees of all
other government agencies.
In addition, petitioners assert that the law unduly delegates the power to fix revenue targets to the President as
it lacks a sufficient standard on that matter. While Section 7(b) and (c) of RA 9335 provides that BIR and BOC
officials may be dismissed from the service if their revenue collections fall short of the target by at least 7.5%,
the law does not, however, fix the revenue targets to be achieved. Instead, the fixing of revenue targets has
been delegated to the President without sufficient standards. It will therefore be easy for the President to fix an
unrealistic and unattainable target in order to dismiss BIR or BOC personnel.
Finally, petitioners assail the creation of a congressional oversight committee on the ground that it violates the
doctrine of separation of powers. While the legislative function is deemed accomplished and completed upon
the enactment and approval of the law, the creation of the congressional oversight committee permits
legislative participation in the implementation and enforcement of the law.

Issues:

1. Whether or not the scope of the system of rewards and incentives limitation to officials and employees of
the BIR and the BOC violates the constitutional guarantee of equal protection.
2. Whether or not there was an unduly delegation of power to fix revenue targets to the President.
3. Whether or not the doctrine of separation of powers has been violated in the creation of a congressional
oversight committee.

Discussions:

1. The Court referred to the ruling of Victoriano v. Elizalde Rope Workers Union, which states that the
guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all
citizens of the State.

The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the
other departments of knowledge or practice, is the grouping of things in speculation or practice because they
agree with one another in certain particulars. A law is not invalid because of simple inequality. The very idea
of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no
manner determines the matter of constitutionality.
The Court has held that the standard is satisfied if the classification or distinction is based on a reasonable
foundation or rational basis and is not palpably arbitrary.

2. To determine the validity of delegation of legislative power, it needs the following: (1) the completeness
test and (2) the sufficient standard test. A law is complete when it sets forth therein the policy to be
executed, carried out or implemented by the delegate. It lays down a sufficient standard when it provides
adequate guidelines or limitations in the law to map out the boundaries of the delegates authority and
prevent the delegation from running riot. To be sufficient, the standard must specify the limits of the
 delegates authority, announce the legislative policy and identify the conditions under which it is to be
implemented.
3. Based from the ruling under Macalintal v. Commission on Elections, it is clear that congressional
oversight is not unconstitutional per se, meaning, it neither necessarily constitutes an encroachment on the
executive power to implement laws nor undermines the constitutional separation of powers. Rather, it is
integral to the checks and balances inherent in a democratic system of government. It may in fact even
enhance the separation of powers as it prevents the over-accumulation of power in the executive branch.

Rulings:

1. The equal protection clause recognizes a valid classification, that is, a classification that has a reasonable
foundation or rational basis and not arbitrary.22 With respect to RA 9335, its expressed public policy is the
optimization of the revenue-generation capability and collection of the BIR and the BOC.23 Since the
subject of the law is the revenue- generation capability and collection of the BIR and the BOC, the
incentives and/or sanctions provided in the law should logically pertain to the said agencies. Moreover, the
law concerns only the BIR and the BOC because they have the common distinct primary function of
generating revenues for the national government through the collection of taxes, customs duties, fees and
charges.

Both the BIR and the BOC principally perform the special function of being the instrumentalities through
which the State exercises one of its great inherent functions taxation. Indubitably, such substantial distinction
is germane and intimately related to the purpose of the law. Hence, the classification and treatment accorded to
the BIR and the BOC under R.A. 9335 fully satisfy the demands of equal protection.

2. R.A. 9335 adequately states the policy and standards to guide the President in fixing revenue targets and
the implementing agencies in carrying out the provisions of the law under Sec 2 and 4 of the said Act.
Moreover, the Court has recognized the following as sufficient standards: public interest, justice and
equity, public convenience and welfare and simplicity, economy and welfare.33 In this case, the
declared policy of optimization of the revenue-generation capability and collection of the BIR and the
BOC is infused with public interest.
3. The court declined jurisdiction on this case. The Joint Congressional Oversight Committee in RA 9335
was created for the purpose of approving the implementing rules and regulations (IRR) formulated by the
DOF, DBM, NEDA, BIR, BOC and CSC. On May 22, 2006, it approved the said IRR. From then on, it
became functus officio and ceased to exist. Hence, the issue of its alleged encroachment on the executive
function of implementing and enforcing the law may be considered moot and academic.
 Republic of the Philippines
SUPREME COURT
Baguio City

EN BANC

G.R. No. 132922 April 21, 1998

TELECOMMUNICATIONS AND BROADCAST ATTORNEYS OF THE PHILIPPINES, INC. and

GMA NETWORK, INC., petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.

MENDOZA, J.:

In Osmea v. COMELEC, G.R. No. 132231, decided March 31, 1998, 1 we upheld the validity of 11(b) of R.A.
No. 6646 which prohibits the sale or donation of print space or air time for political ads, except to the Commission on Elections under 90, of
B.P. No. 881, the Omnibus Election Code, with respect to print media, and 92, with respect to broadcast media. In the present case, we
consider the validity of 92 of B.P. Blg. No. 881 against claims that the requirement that radio and television time be given free takes
property without due process of law; that it violates the eminent domain clause of the Constitution which provides for the payment of just
compensation; that it denies broadcast media the equal protection of the laws; and that, in any event, it violates the terms of the franchise of
petitioner GMA Network, Inc.

Petitioner Telecommunications and Broadcast Attorneys of the Philippines, Inc. is an organization of

lawyers of radio and television broadcasting companies. They are suing as citizens, taxpayers, and
registered voters. The other petitioner, GMA Network, Inc., operates radio and television
broadcasting stations throughout the Philippines under a franchise granted by Congress.

Petitioners challenge the validity of 92 on the ground (1) that it takes property without due process
of law and without just compensation; (2) that it denies radio and television broadcast companies the
equal protection of the laws; and (3) that it is in excess of the power given to the COMELEC to
supervise or regulate the operation of media of communication or information during the period of
election.

The Question of Standing

At the threshold of this suit is the question of standing of petitioner Telecommunications and
Broadcast Attorneys of the Philippines, Inc. (TELEBAP). As already noted, its members assert an
interest as lawyers of radio and television broadcasting companies and as citizens, taxpayers, and
registered voters.

In those cases 2 in which citizens were authorized to sue, this Court upheld their standing in view of the "transcendental importance" of
the constitutional question raised which justified the granting of relief. In contrast, in the case at bar, as will presently be shown, petitioner's
substantive claim is without merit. To the extent, therefore, that a party's standing is determined by the substantive merit of his case or
preliminary estimate thereof, petitioner TELEBAP must be held to be without standing. Indeed, a citizen will be allowed to raise a
constitutional question only when he can show that he has personally suffered some actual or threatened injury as a result of the allegedly
illegal conduct of the government; the injury fairly is fairly traceable to the challenged action; and the injury is likely to be redressed by a
favorable action. 3 Members of petitioner have not shown that they have suffered harm as a result of the operation of 92 of B.P. Blg. 881.
Nor do members of petitioner TELEBAP have an interest as registered voters since this case does
not concern their right of suffrage. Their interest in 92 of B.P. Blg. 881 should be precisely in
upholding its validity.

Much less do they have an interest as taxpayers since this case does not involve the exercise by
Congress of its taxing or spending power. 4 A party suing as a taxpayer must specifically show that he has a sufficient
interest in preventing the illegal expenditure of money raised by taxation and that he will sustain a direct injury as a result of the enforcement
of the questioned statute.

Nor indeed as a corporate entity does TELEBAP have standing to assert the rights of radio and
television broadcasting companies. Standing jus tertii will be recognized only if it can be shown that
the party suing has some substantial relation to the third party, or that the third party cannot assert
his constitutional right, or that the eight of the third party will be diluted unless the party in court is
allowed to espouse the third party's constitutional claim. None of these circumstances is here
present. The mere fact that TELEBAP is composed of lawyers in the broadcast industry does not
entitle them to bring this suit in their name as representatives of the affected companies.

Nevertheless, we have decided to take this case since the other petitioner, GMA Network, Inc.,
appears to have the requisite standing to bring this constitutional challenge. Petitioner operates radio
and television broadcast stations in the Philippines affected by the enforcement of 92 of B.P. Blg.
881 requiring radio and television broadcast companies to provide free air time to the COMELEC for
the use of candidates for campaign and other political purposes.

Petitioner claims that it suffered losses running to several million pesos in providing COMELEC Time
in connection with the 1992 presidential election and the 1995 senatorial election and that it stands
to suffer even more should it be required to do so again this year. Petitioner's allegation that it will
suffer losses again because it is required to provide free air time is sufficient to give it standing to
question the validity of 92. 5

Airing of COMELEC Time, a

Reasonable Condition for

Grant of Petitioner's

Franchise

As pointed out in our decision in Osmea v. COMELEC, 11(b) of R.A. No. 6646 and 90 and 92 of the B.P. Blg. 881 are part and parcel of
a regulatory scheme designed to equalize the opportunity of candidates in an election in regard to the use of mass media for political
campaigns. These statutory provisions state in relevant parts:

R.A. No. 6646

Sec. 11. Prohibited Forms of Election Propaganda. In addition to the forms of election
propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:

xxx xxx xxx

(b) for any newspapers, radio broadcasting or television station, or other mass media, or any
person making use of the mass media to sell or to give free of charge print space or air time
for campaign or other political purposes except to the Commission as provided under
Section 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, commentator,
 announcer or personality who is a candidate for any elective public office shall take a leave
of absence from his work as such during the campaign period.

B.P. Blg. 881, (Omnibus Election Code)

Sec. 90. Comelec space. The Commission shall procure space in at least one newspaper
of general circulation in every province or city; Provided, however, That in the absence of
said newspaper, publication shall be done in any other magazine or periodical in said
province or city, which shall be known as "Comelec Space" wherein candidates can
announce their candidacy. Said space shall be allocated, free of charge, equally and
impartially by the Commission among all candidates within the area in which the newspaper
is circulated. (Sec. 45, 1978 EC).

Sec. 92. Comelec time. The commission shall procure radio and television time to be
known as "Comelec Time" which shall be allocated equally and impartially among the
candidates within the area of coverage of all radio and television stations. For this purpose,
the franchise of all radio broadcasting and television stations are hereby amended so as to
provide radio or television time, free of charge, during the period of the campaign. (Sec. 46,
1978 EC)

Thus, the law prohibits mass media from selling or donating print space and air time to the
candidates and requires the COMELEC instead to procure print space and air time for allocation to
the candidates. It will be noted that while 90 of B.P. Blg. 881 requires the COMELEC to procure
print space which, as we have held, should be paid for, 92 states that air time shall be procured by
the COMELEC free of charge.

Petitioners contend that 92 of BP Blg. 881 violates the due process clause 6 and the eminent domain
provision 7 of the Constitution by taking air time from radio and television broadcasting stations without payment of just compensation.
Petitioners claim that the primary source of revenue of the radio and television stations is the sale of air time to advertisers and that to require
these stations to provide free air time is to authorize a taking which is not "a de minimis temporary limitation or restraint upon the use of
private property." According to petitioners, in 1992, the GMA Network, Inc. lost P22,498,560.00 in providing free air time of one (1) hour
every morning from Mondays to Fridays and one (1) hour on Tuesdays and Thursday from 7:00 to 8:00 p.m. (prime time) and, in this year's
elections, it stands to lose P58,980,850.00 in view of COMELEC'S requirement that radio and television stations provide at least 30 minutes
of prime time daily for the COMELEC Time. 8

Petitioners' argument is without merit, All broadcasting, whether by radio or by television stations, is
licensed by the government. Airwave frequencies have to be allocated as there are more individuals
who want to broadcast than there are frequencies to assign. 9 A franchise is thus a privilege subject, among other
things, to amended by Congress in accordance with the constitutional provision that "any such franchise or right granted . . . shall be subject
to amendment, alteration or repeal by the Congress when the common good so requires." 10

The idea that broadcast stations may be required to provide COMELEC Time free of charge is not
new. It goes back to the Election Code of 1971 (R.A. No. 6388), which provided:

Sec. 49. Regulation of election propaganda through mass media. (a) The franchise of all
radio broadcasting and television stations are hereby amended so as to require each such
station to furnish free of charge, upon request of the Commission [on Elections], during the
period of sixty days before the election not more than fifteen minutes of prime time once a
week which shall be known as "Comelec Time" and which shall be used exclusively by the
Commission to disseminate vital election information. Said "Comelec Time" shall be
considered as part of the public service time said stations are required to furnish the
Government for the dissemination of public information and education under their respective
franchises or permits.
The provision was carried over with slight modification by the 1978 Election Code (P.D. No. 1296),
which provided:

Sec. 46. COMELEC Time. The Commission [on Elections] shall procure radio and
television time to be known as "COMELEC Time" which shall be allocated equally and
impartially among the candidates within the area of coverage of said radio and television
stations. For this purpose, the franchises of all radio broadcasting and television stations are
hereby amended so as to require such stations to furnish the Commission radio or television
time, free of charge, during the period of the campaign, at least once but not oftener than
every other day.

Substantially the same provision is now embodied in 92 of B.P. Blg. 881.

Indeed, provisions for COMELEC Tima have been made by amendment of the franchises of radio
and television broadcast stations and, until the present case was brought, such provisions had not
been thought of as taking property without just compensation. Art. XII, 11 of the Constitution
authorizes the amendment of franchises for "the common good." What better measure can be
conceived for the common good than one for free air time for the benefit not only of candidates but
even more of the public, particularly the voters, so that they will be fully informed of the issues in an
election? "[I]t is the right of the viewers and listeners, not the right of the broadcasters, which is
paramount." 11

Nor indeed can there be any constitutional objection to the requirement that broadcast stations give
free air time. Even in the United States, there are responsible scholars who believe that government
controls on broadcast media can constitutionally be instituted to ensure diversity of views and
attention to public affairs to further the system of free expression. For this purpose, broadcast
stations may be required to give free air time to candidates in an election. 12 Thus, Professor Cass R. Sunstein
of the University of Chicago Law School, in urging reforms in regulations affecting the broadcast industry, writes:

Elections. We could do a lot to improve coverage of electoral campaigns. Most important,

government should ensure free media time for candidates. Almost all European nations
make such provisions; the United States does not. Perhaps government should pay for such
time on its own. Perhaps broadcasters should have to offer it as a condition for receiving a
license. Perhaps a commitment to provide free time would count in favor of the grant of a
license in the first instance. Steps of this sort would simultaneously promote attention to
public affairs and greater diversity of view. They would also help overcome the distorting
effects of "soundbites" and the corrosive financial pressures faced by candidates in seeking
time on the media. 13

In truth, radio and television broadcasting companies, which are given franchises, do not own the
airwaves and frequencies through which they transmit broadcast signals and images. They are
merely given the temporary privilege of using them. Since a franchise is a mere privilege, the
exercise of the privilege may reasonably be burdened with the performance by the grantee of some
form of public service. Thus, in De Villata v. Stanley, 14 a regulation requiring interisland vessels licensed to engage in
the interisland trade to carry mail and, for this purpose, to give advance notice to postal authorities of date and hour of sailings of vessels and
of changes of sailing hours to enable them to tender mail for transportation at the last practicable hour prior to the vessel's departure, was
held to be a reasonable condition for the state grant of license. Although the question of compensation for the carriage of mail was not in
issue, the Court strongly implied that such service could be without compensation, as in fact under Spanish sovereignty the mail was carried
free. 15

In Philippine Long Distance Telephone Company v. NTC, 16 the Court ordered the PLDT to allow the interconnection
of its domestic telephone system with the international gateway facility of Eastern Telecom. The Court cited (1) the provisions of the
legislative franchise allowing such interconnection; (2) the absence of any physical, technical, or economic basis for restricting the linking up
of two separate telephone systems; and (3) the possibility of increase in the volume of international traffic and more efficient service, at more
moderate cost, as a result of interconnection.
Similarly, in the earlier case of PLDT v. NTC, 17 it was held:

Such regulation of the use and ownership of telecommunications systems is in the exercise
of the plenary police power of the State for the promotion of the general welfare. The 1987
Constitution recognizes the existence of that power when it provides:

Sec. 6. The use of property bears a social function, and all economic agents
shall contribute to the common good. Individuals and private groups,
including corporations, cooperatives, and similar collective organizations,
shall have the right to own, establish, and operate economic enterprises,
subject to the duty of the State to promote distributive justice and to intervene
when the common good so demands (Article XII).

The interconnection which has been required of PLDT is a form of "intervention" with
property rights dictated by "the objective of government to promote the rapid expansion of
telecommunications services in all areas of the Philippines, . . . to maximize the use of
telecommunications facilities available, . . . in recognition of the vital role of communications
in nation building . . . and to ensure that all users of the public telecommunications service
have access to all other users of the service wherever they may be within the Philippines at
an acceptable standard of service and at reasonable cost" (DOTC Circular No. 90-248).
Undoubtedly, the encompassing objective is the common good. The NTC, as the regulatory
agency of the State, merely exercised its delegated authority to regulate the use of
telecommunications networks when it decreed interconnection.

In the granting of the privilege to operate broadcast stations and thereafter supervising radio and
television stations, the state spends considerable public funds in licensing and supervising such
stations. 18 It would be strange if it cannot even require the licensees to render public service by giving free air time.

Considerable effort is made in the dissent of Mr. Justice Panganiban to show that the production of
television programs involves large expenditure and requires the use of equipment for which huge
investments have to be made. The dissent cites the claim of GMA Network that the grant of free air
time to the COMELEC for the duration of the 1998 campaign period would cost the company
P52,380,000, representing revenue it would otherwise earn if the air time were sold to advertisers,
and the amount of P6,600,850, representing the cost of producing a program for the COMELEC
Time, or the total amount of P58,980,850.

The claim that petitioner would be losing P52,380,000 in unrealized revenue from advertising is
based on the assumption that air time is "finished product" which, it is said, become the property of
the company, like oil produced from refining or similar natural resources after undergoing a process
for their production. But air time is not owned by broadcast companies. As held in Red Lion
Broadcasting Co. v. F.C.C., 19 which upheld the right of a party personally attacked to reply, "licenses to broadcast do not confer
ownership of designated frequencies, but only the temporary privilege of using them." Consequently, "a license permits broadcasting, but the
license has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow
citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with
others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his
community and which would otherwise, by necessity, be barred from the airwaves." 20 As radio and television broadcast stations do not own
the airwaves, no private property is taken by the requirement that they provide air time to the COMELEC.

Justice Panganiban's dissent quotes from Tolentino on the Civil Code which says that "the air lanes
themselves 'are not property because they cannot be appropriated for the benefit of any individual.'"
(p. 5) That means neither the State nor the stations own the air lanes. Yet the dissent also says that
"The franchise holders can recover their huge investments only by selling air time to advertisers." (p.
13) If air lanes cannot be appropriated, how can they be used to produce air time which the
franchise holders can sell to recover their investment? There is a contradiction here.
As to the additional amount of P6,600,850, it is claimed that this is the cost of producing a program
and it is for such items as "sets and props," "video tapes," "miscellaneous (other rental, supplies,
transportation, etc.)," and "technical facilities (technical crew such as director and cameraman as
well as 'on air plugs')." There is no basis for this claim. Expenses for these items will be for the
account of the candidates. COMELEC Resolution No. 2983, 6(d) specifically provides in this
connection:

(d) Additional services such as tape-recording or video-taping of programs, the preparation

of visual aids, terms and condition thereof, and consideration to be paid therefor may be
arranged by the candidates with the radio/television station concerned. However, no
radio/television station shall make any discrimination among candidates relative to charges,
terms, practices or facilities for in connection with the services rendered.

It is unfortunate that in the effort to show that there is taking of private property worth millions of
pesos, the unsubstantiated charge is made that by its decision the Court permits the "grand larceny
of precious time," and allows itself to become "the people's unwitting oppressor." The charge is really
unfortunate. In Jackson v. Rosenbaun, 21 Justice Holmes was so incensed by the resistance of property owners to the
erection of party walls that he was led to say in his original draft, "a statute, which embodies the community's understanding of the reciprocal
rights and duties of neighboring landowners, does not need to invoke the penalty larceny of the police power in its justification." Holmes's
brethren corrected his taste, and Holmes had to amend the passage so that in the end it spoke only of invoking "the police power." 22 Justice
Holmes spoke of the "petty larceny" of the police power. Now we are being told of the "grand larceny [by means of the police power] of
precious air time."

Giving Free Air Time a Duty

Assumed by Petitioner

Petitioners claim that 92 is an invalid amendment of R.A. No. 7252 which granted GMA Network,
Inc. a franchise for the operation of radio and television broadcasting stations. They argue that
although 5 of R.A. No. 7252 gives the government the power to temporarily use and operate the
stations of petitioner GMA Network or to authorize such use and operation, the exercise of this right
must be compensated.

The cited provision of. R.A. No. 7252 states:

Sec. 5. Right of Government. A special right is hereby reserved to the President of the
Philippines, in times of rebellion, public peril, calamity, emergency, disaster or disturbance of
peace and order, to temporarily take over and operate the stations of the grantee, to
temporarily suspend the operation of any station in the interest of public safety, security and
public welfare, or to authorize the temporary use and operation thereof by any agency of the
Government, upon due compensation to the grantee, for the use of said stations during the
period when they shall be so operated.

The basic flaw in petitioner's argument is that it assumes that the provision for COMELEC Time
constitutes the use and operation of the stations of the GMA Network, Inc., This is not so. Under 92
of B.P. Blg. 881, the COMELEC does not take over the operation of radio and television stations but
only the allocation of air time to the candidates for the purpose of ensuring, among other things,
equal opportunity, time, and the right to reply as mandated by the Constitution. 23

Indeed, it is wrong to claim an amendment of petitioner's franchise for the reason that B.P. Blg. 881,
which is said to have amended R.A. No. 7252, actually antedated it. 24 The provision of 92 of B.P. Blg. 881 must
be deemed instead to be incorporated in R.A. No. 7252. And, indeed, 4 of the latter statute does.
For the fact is that the duty imposed on the GMA Network, Inc. by its franchise to render "adequate
public service time" implements 92 of B.P. Blg. 881. Undoubtedly, its purpose is to enable the
government to communicate with the people on matters of public interest. Thus, R.A. No. 7252
provides:

Sec. 4. Responsibility to the Public. The grantee shall provide adequate public service
time to enable the Government, through the said broadcasting stations, to reach the
population on important public issues; provide at all times sound and balanced programming;
promote public participation such as in community programming; assist in the functions of
public information and education; conform to the ethics of honest enterprise; and not use its
station for the broadcasting of obscene and indecent language, speech, act or scene, or for
the dissemination of deliberately false information or willful misrepresentation, or to the
detriment of the public interest, or to incite, encourage, or assist in subversive or treasonable
acts. (Emphasis added).

It is noteworthy that 40 of R.A. No. 6388, from which 92 of B.P. Blg. 881 was taken, expressly
provided that the COMELEC Time should "be considered as part of the public service time said
stations are required to furnish the Government for the dissemination of public information and
education under their respective franchises or permits." There is no reason to suppose that 92 of
B.P. Blg. 881 considers the COMELEC Time therein provided to be otherwise than as a public
service which petitioner is required to render under 4 of its charter (R.A. No. 7252). In sum, B.P.
Blg. 881, 92 is not an invalid amendment of petitioner's franchise but the enforcement of a duty
voluntarily assumed by petitioner in accepting a public grant of privilege.

Thus far, we have confined the discussion to the provision of 92 of B.P. Blg. 881 for free air time
without taking into account COMELEC Resolution No. 2983-A, 2 of which states:

Sec. 2. Grant of "Comelec Time." Every radio broadcasting and television station
operating under franchise shall grant the Commission, upon payment of just compensation,
at least thirty (30) minutes of prime time daily, to be known as "Comelec Time", effective
February 10, 1998 for candidates for President, Vice-President and Senators, and effective
March 27, 1998, for candidates for local elective offices, until May 9, 1998. (Emphasis
added).

This is because the amendment providing for the payment of "just compensation" is invalid, being in
contravention of 92 of B.P. Blg. 881 that radio and television time given during the period of the
campaign shall be "free of charge." Indeed, Resolution No. 2983 originally provided that the time
allocated shall be "free of charge," just as 92 requires such time to be given "free of charge." The
amendment appears to be a reaction to petitioner's claim in this case that the original provision was
unconstitutional because it allegedly authorized the taking of property without just compensation.

The Solicitor General, relying on the amendment, claims that there should be no more dispute
because the payment of compensation is now provided for. It is basic, however, that an
administrative agency cannot, in the exercise of lawmaking, amend a statute of Congress. Since 2
of Resolution No. 2983-A is invalid, it cannot be invoked by the parties.

Law Allows Flextime for Programming

by Stations, Not Confiscation of

Air Time by COMELEC

It is claimed that there is no standard in the law to guide the COMELEC in procuring free air time
and that "theoretically the COMELEC can demand all of the air time of such stations." 25 Petitioners do not
claim that COMELEC Resolution No. 2983-A arbitrarily sequesters radio and television time. What they claim is that because of the breadth
of the statutory language, the provision in question is susceptible of "unbridled, arbitrary and oppressive exercise." 26

The contention has no basis. For one, the COMELEC is required to procure free air time for
candidates "within the area of coverage" of a particular radio or television broadcaster so that it
cannot, for example, procure such time for candidates outside that area. At what time of the day and
how much time the COMELEC may procure will have to be determined by it in relation to the overall
objective of informing the public about the candidates, their qualifications and their programs of
government. As stated in Osmea v. COMELEC, the COMELEC Time provided for in 92, as well
as the COMELEC Space provided for in 90, is in lieu of paid ads which candidates are prohibited to
have under 11(b) of R.A. No. 6646. Accordingly, this objective must be kept in mind in determining
the details of the COMELEC Time as well as those of the COMELEC Space.

There would indeed be objection to the grant of power to the COMELEC if 92 were so detailed as
to leave no room for accommodation of the demands of radio and television programming. For were
that the case, there could be an intrusion into the editorial prerogatives of radio and television
stations.

Differential Treatment of

Broadcast Media Justified

Petitioners complain that B.P. Blg. 881, 92 singles out radio and television stations to provide free
air time. They contend that newspapers and magazines are not similarly required as, in fact,
in Philippine Press Institute v.COMELEC, 27 we upheld their right to the payment of just compensation for the print space
they may provide under 90.

The argument will not bear analysis. It rests on the fallacy that broadcast media are entitled to the
same treatment under the free speech guarantee of the Constitution as the print media. There are
important differences in the characteristics of the two media, however, which justify their differential
treatment for free speech purposes. Because of the physical limitations of the broadcast spectrum,
the government must, of necessity, allocate broadcast frequencies to those wishing to use them.
There is no similar justification for government allocation and regulation of the print media. 28

In the allocation of limited resources, relevant conditions may validly be imposed on the grantees or
licensees. The reason for this is that, as already noted, the government spends public funds for the
allocation and regulation of the broadcast industry, which it does not do in the case of the print
media. To require the radio and television broadcast industry to provide free air time for the
COMELEC Time is a fair exchange for what the industry gets.

From another point of view, this Court has also held that because of the unique and pervasive
influence of the broadcast media, "[n]ecessarily . . . the freedom of television and radio broadcasting
is somewhat lesser in scope than the freedom accorded to newspaper and print media." 29

The broadcast media have also established a uniquely pervasive presence in the lives of all
Filipinos. Newspapers and current books are found only in metropolitan areas and in the
poblaciones of municipalities accessible to fast and regular transportation. Even here, there are low
income masses who find the cost of books, newspapers, and magazines beyond their humble
means. Basic needs like food and shelter perforce enjoy high priorities.
 On the other hand, the transistor radio is found everywhere. The television set is also
becoming universal. Their message may be simultaneously received by a national or
regional audience of listeners including the indifferent or unwilling who happen to be within
reach of a blaring radio or television set. The materials broadcast over the airwaves reach
every person of every age, persons of varying susceptibilities to persuasion, persons of
different I.Q.s and mental capabilities, persons whose reactions to inflammatory or offensive
speech would he difficult to monitor or predict. The impact of the vibrant speech is forceful
and immediate. Unlike readers of the printed work, the radio audience has lesser opportunity
to cogitate, analyze, and reject the utterance. 30

Petitioners' assertion therefore that 92 of B.P. Blg. 881 denies them the equal protection of the law
has no basis. In addition, their plea that 92 (free air time) and 11(b) of R.A. No. 6646 (ban on paid
political ads) should be invalidated would pave the way for a return to the old regime where
moneyed candidates could monopolize media advertising to the disadvantage of candidates with
less resources. That is what Congress tried to reform in 1987 with the enactment of R.A. No. 6646.
We are not free to set aside the judgment of Congress, especially in light of the recent failure of
interested parties to have the law repealed or at least modified.

Requirement of COMELEC Time, a

Reasonable Exercise of the

State's Power to Regulate

Use of Franchises

Finally, it is argued that the power to supervise or regulate given to the COMELEC under Art. IX-C,
4 of the Constitution does not include the power to prohibit. In the first place, what the COMELEC is
authorized to supervise or regulate by Art. IX-C, 4 of the Constitution, 31 among other things, is the use by
media of information of their franchises or permits, while what Congress (not the COMELEC) prohibits is the sale or donation of print space
or air time for political ads. In other words, the object of supervision or regulation is different from the object of the prohibition. It is another
fallacy for petitioners to contend that the power to regulate does not include the power to prohibit. This may have force if the object of the
power were the same.

In the second place, the prohibition in 11(b) of R.A. No. 6646 is only half of the regulatory provision
in the statute. The other half is the mandate to the COMELEC to procure print space and air time for
allocation to candidates. As we said in Osmea v. COMELEC:

The term political "ad ban" when used to describe 11(b) of R.A. No. 6646, is misleading, for
even as 11(b) prohibits the sale or donation of print space and air time to political
candidates, it mandates the COMELEC to procure and itself allocate to the candidates space
and time in the media. There is no suppression of political ads but only a regulation of the
time and manner of advertising.

xxx xxx xxx

. . . What is involved here is simply regulation of this nature. Instead of leaving candidates to
advertise freely in the mass media, the law provides for allocation, by the COMELEC of print
space and air time to give all candidates equal time and space for the purpose of ensuring
"free, orderly, honest, peaceful, and credible elections."

With the prohibition on media advertising by candidates themselves, the COMELEC Time and
COMELEC Space are about the only means through which candidates can advertise their
qualifications and programs of government. More than merely depriving their qualifications and
programs of government. More than merely depriving candidates of time for their ads, the failure of
broadcast stations to provide air time unless paid by the government would clearly deprive the
people of their right to know. Art III, 7 of the Constitution provides that "the right of the people to
information on matters of public concern shall be recognized," while Art. XII, 6 states that "the use
of property bears a social function [and] the right to own, establish, and operate economic
enterprises [is] subject to the duty of the State to promote distributive justice and to intervene when
the common good so demands."

To affirm the validity of 92 of B.P. Blg. 881 is to hold public broadcasters to their obligation to see to
it that the variety and vigor of public debate on issues in an election is maintained. For while
broadcast media are not mere common carriers but entities with free speech rights, they are also
public trustees charged with the duty of ensuring that the people have access to the diversity of
views on political issues. This right of the people is paramount to the autonomy of broadcast media.
To affirm the validity of 92, therefore, is likewise to uphold the people's right to information on
matters of public concern. The use of property bears a social function and is subject to the state's
duty to intervene for the common good. Broadcast media can find their just and highest reward in the
fact that whatever altruistic service they may render in connection with the holding of elections is for
that common good.

For the foregoing reasons, the petition is dismissed.

SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Bellosillo, Melo, Puno, Kapunan, Martinez and Quisumbing,
JJ., concur.

Separate Opinions

VITUG, J., separate opinion;

I assent in most part to the well-considered opinion written by Mr. Justice Vicente V. Mendoza in
his ponencia, particularly, in holding that petitioner TELEBAP lacks locus standi in filing the instant
petition and in declaring that Section 92 of Batas Pambansa Blg. 881 is a legitimate exercise of
police power of the State.

The grant of franchise to broadcast media is a privilege burdened with responsibilities. While it is,
primordially, a business enterprise, it nevertheless, also addresses in many ways certain imperatives
of public service. In Stone vs.Mississippi (101, U.S. 814, cited in Cruz, Constitutional Law, 1995 ed.,
p. 40.), a case involving a franchise to sell lotteries which petitioner claims to be a contract which
may not be impaired, the United States Supreme Court opined:

. . . (T)he Legislature cannot bargain away the police power of a State. Irrevocable grants of
property and franchises may be made if they do not impair the supreme authority to make
laws for the right government of the State; but no Legislature can curtail the power of its
successors to make such laws as they may deem proper in matters of police. . .
In this case, the assailed law, in my view, has not failed in meeting the standards set forth for its
lawful exercise, i.e., (a) that its utilization is demanded by the interests of the public, and (b) that the
means employed are reasonably necessary, and not unduly oppressive, for the accomplishment of
the purposes and objectives of the law.

I cannot consider COMELEC Resolution No. 2983-A, particularly Section 2 thereof, as being in
contravention of B.P. No. 881. There is nothing in the law that prohibits the COMELEC from itself
procuring airtime, perhaps longer than that which can reasonably be allocated, if it believes that in so
opting, it does so for the public good.

I vote to DISMISS the petition.

ROMERO, J., dissenting;

Section 92 of BP 881 constitutes taking of private property without just compensation. The power of
eminent domain is a power inherent in sovereignty and requires no constitutional provision to give it
force. It is the rightful authority which exists in every sovereignty, to control and regulate those rights
of a public nature which pertain to its citizens in common, and to appropriate and control individual
property for the public benefit as the public safety, necessity, convenience or welfare demand. 1 The
right to appropriate private property to public use, however, lies dormant in the state until legislative action is had, pointing out the occasions,
the modes, the conditions and agencies for its appropriation. 2

Section 92 of BP 881 states

Sec. 92. Comelec Time The Comelec shall procure radio and television time to be
known as "Comelec Time" which shall be allocated equally and impartially among the
candidates within the area of coverage of all radio and television stations. For this purpose,
the franchise of all radio and television stations are hereby attended so as to provide radio
and television time free of charge during the period of election campaign.

Pursuant to Section 92 of BP 881, respondent COMELEC on March 3, 1998 passed Resolution

2983-A, the pertinent provision of which reads as follows:

Sec. 2. Grant of "Comelec Time." Every radio broadcasting and television station
operating under franchise shall grant the Commission, upon payment of just compensation,
at least thirty (30) minutes of prime time daily, to be known as "Comelec Time," effective
February 10, 1998 for candidates for President, Vice-President and Senators, and effective
March 27, 1998, for candidates for local elective offices, until May 9, 1998.

Section 92 of BP 881, insofar as it requires radio and television stations to provide Comelec with
radio and television time free of charge is a flagrant violation of the constitutional mandate that
private property shall not be taken for public use without just compensation. While it is inherent in the
State, the sovereign right to appropriate property has never been understood to include taking
property for public purposes without the duty and responsibility of ordering compensation to the
individual whose property has been sacrificed for the good of the community. Hence, Section 9
Article III of the 1987 Constitution which reads "No private property shall be taken for public use
without just compensation," gives us two limitations on the power of eminent domain: (1) the purpose
of taking must be for public use and (2) just compensation must be given to the owner of the private
property.

There is, of course, no question that the taking of the property in the case at bar is for public use, i.e.
to ensure that air time is allocated equally among the candidates, however, there is no justification
for the taking without payment of just compensation. While Resolution No. 2983-A has provided that
just compensation shall be paid for the 30 minutes of prime time granted by the television stations to
respondent Comelec, we note that the resolution was passed pursuant to Section 92 of BP 881
which mandates that radio and television time be provided to respondent Comelec free of charge.
Since the legislative intent is the controlling element in determining the administrative powers, rights,
privileges and immunities granted, 3 respondent Comelec may, at any time, despite the resolution passed, compel television
and radio stations to provide it with airtime free of charge.

Apparently, Sec. 92 of BP 881 justices such taking under the guise of police power regulation which
cannot be validly done. Police power must be distinguished from the power of eminent domain. In
the exercise of police power, there is a restriction of property interest to promote public welfare or
interest which involves no compensable taking. When the power of eminent domain, however, is
exercised, property interest is appropriated and applied to some public purpose, necessitating
compensation therefor. Traditional distinctions between police power and the power of eminent
domain precluded application of both powers at the same time in the same subject. 4 Hence, in the case
of City of Baguio v. NAWASA, 5 the Court held that a law requiring the transfer of all municipal waterworks systems to NAWASA in exchange
for its assets of equivalent value involved the exercise of eminent domain because the property involved was wholesome and intended for
public use. Property condemned under the exercise of police power, on the other hand, is noxious or intended for noxious purpose and,
consequently, is not compensable. Police power proceeds from the principle that every holder of property, however absolute and unqualified
may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal
right to the enjoyment of their property, nor injurious to the rights of the community. Rights of property, like all other social and conventional
rights, are subject to reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraits
and regulations established by law as the legislature, under the governing and controlling power vested in them by the constitution, may think
necessary and expedient. 6

In the case of Small Landowners of the Philippines Inc. v. Secretary of Agrarian Reform, we found
occasion to note that recent trends show a mingling of the police power and the power of eminent
domain, with the latter being used as an implement of the former like the power of taxation. Citing
the cases of Berman v. Parker 7 and Penn Central Transportation Co. v. New York City 8 where owners of the Grand Central
Terminal who were not allowed to construct a multi-story building to preserve a historic landmark were allowed certain compensatory rights
to mitigate the loss caused by the regulation, this Court is Small Landowners of the Philippines, Inc. case held that measures prescribing
retention limits for landowners under the Agrarian Reform Law involved the exercise of police power for the regulation of private property in
accordance with the constitution. And, where to carry out the regulation, it became necessary to deprive owners of whatever lands they may
own in excess of the maximum area allowed, the Court held that there was definitely a taking under the power of eminent domain for which
payment of just compensation was imperative.

The petition before us is no different from the above-cited case. Insofar as See 92 of BP 881 read in
conjunction with Sec 11(b) of RA 6646 restricts the sale or donation of airtime by radio and television
stations during the campaign period to respondent Comelec, there is an exercise of police power for
the regulation of property in accordance with the Constitution. To the extent however that Sec 92 of
BP 881 mandates that airtime be provided free of charge to respondent Comelec to be allocated
equally among all candidates, the regulation exceeds the limits of police power and should be
recognized as a taking. In the case of Pennsylvania Coal v. Mahon, 9 Justice Holmes laid down the limits of police
power in this wise," The general rule is that while property may be regulated to a certain extent, if the regulation goes too far, it will be
recognized as a taking."

While the power of eminent domain often results in the appropriation of title to or possession of
property, it need not always be the case. It is a settled rule that neither acquisition of title nor total
destruction of value is essential to taking and it is usually in cases where title remains with the
private owner that inquiry should be made to determine whether the impairment of a property is
merely regulated or amounts to a compensable taking. A regulation which deprives any person of
the profitable use of his property constitutes a taking and entitles him to compensation unless the
invasion of rights is so slight as to permit the regulation to be justified under the police power.
Similarly, a police regulation which unreasonably restricts the right to use business property for
business purposes, amounts to taking of private property and the owner may recover therefor. 10 It is
also settled jurisprudence that acquisition of right of way easement falls within the purview of eminent domain. 11
While there is no taking or appropriation of title to, and possession of the expropriated property in the
case at bar, there is compensable taking inasmuch as them is a loss of the earnings for the airtime
which the petitioner-intervenors are compelled to donate. It is a loss which, to paraphrase Philippine
Press Institute v. Comelec, 12 could hardly be considered "de minimis" if we are to take into account the monetary value of the
compulsory donation measured by the current advertising rates of the radio and television stations.

In the case of Philippine Press Institute v. Comelec, 13 we had occasion to state that newspapers and other print media
are not compelled to donate free space to respondent Comelec inasmuch as this would be in violation of the constitutional provision that no
private property shall be taken for public use without just compensation. We find no cogent reason why radio and television stations should
be treated considering that their operating expenses as compared to those of the newspaper and other print media publishers involve
considerably greater amount of financial resources.

The fact that one needs a franchise from government to establish a radio and television station while
no license is needed to start a newspaper should not be made a basis for treating broadcast media
any differently from the print media in compelling the former to "donate" airtime to respondent
Comelec. While no franchises and rights are granted except under the condition that it shall be
subject to amendment, alteration, or repeal by the Congress when the common good so
requires, 14 this provides no license for government to disregard the cardinal rule that corporations with franchises are as much entitled to
due process and equal protection of laws guaranteed under the Constitution.

ACCORDINGLY, I vote to declare Section 92 of BP 881 insofar as it mandates that radio and
television time be provided to respondent Comelec free of charge UNCONSTITUTIONAL.

PANGANIBAN, J., dissenting;

At issue in this case is the constitutionality of Section 92 of the Omnibus Election Code 1 which compels all
broadcast stations in the country "to provide radio and television time, free of charge, during the period of the [election] campaigns," which
the Commission on Elections shall allocate "equally and impartially among the candidates . . ." Petitioners contend, and I agree, that this
legal provision is unconstitutional because it confiscates private property without due process of law and without payment of just
compensation, and denies broadcast media equal protection of the law.

In Philippine Press Institute, Inc. (PPI) vs. Commission on Elections, 2 this Court ruled that print media companies
cannot be required to donate advertising space, free of charge, to the Comelec for equal allocation among candidates, on the ground that
such compulsory seizure of print space is equivalent to a proscribed taking of private property for public use without payment of just
compensation. 3

The Court's majority in the present case, speaking through the distinguished Mr. Justice Vicente V.
Mendoza, holds, however, that the foregoing PPI doctrine applies only to print media, not to
broadcast (radio and TV) networks, arguing that "radio and television broadcasting companies,
which are given franchises, do not own the airwaves and frequencies through which they transmit
broadcast signals and images. They are merely given the temporary privilege of using them. Since a
franchise is a mere privilege, the exercise of the privilege may reasonably be burdened with the
performance by the grantee of some form of public service." In other words, the majority theorizes
that the forced donation of air time to the Comelec is a means by which the State gets compensation
for the grant of the franchise and/or the use of the air lanes.

With all due respect, I disagree. The majority is relying on a theoretical distinction that does not
make any real difference. Theory must yield to reality. I respectfully submit the following arguments
to support my dissent:

1. The State does not own the airwaves and broadcast frequencies. It merely allocates, supervises
and regulates their proper use. Thus, other than collecting supervision or regulatory fees which it
already does, it cannot exact any onerous and unreasonable post facto burdens from the franchise
holders, without due process and just compensation. Moreover, the invocation of the "common
good" does not excuse the unbridled and clearly excessive taking of a franchisee's property.
2. Assuming arguendo that the State owns the air lanes, the broadcasting companies already pay
rental fees to the government for their use. Hence, the seizure of air time cannot be justified by the
theory of compensation.

3. Airwaves and frequencies alone, without the radio and television owner's humongous investments
amounting to billions of pesos, cannot be utilized for broadcasting purposes. Hence, a forced
donation of broadcast time is in actual fact a taking of such investments without due process and
without payment of just compensation.

Let me explain further each of these arguments.

I. The State Does Not Own Air Lanes:

It Merely Regulates Their Proper Use;

"Common Good" Does Not Excuse Unbridled Taking.

Significantly, the majority does not claim that the State owns the air lanes. It merely contends that
"broadcasting, whether by radio or by television stations, is licensed by the government. Airwave
frequencies have to be allocated as there are more individuals who want to broadcast than there are
frequencies to assign. A franchise is thus a privilege subject among other thing . . . to amendment,
alteration or repeal by the Congress when the common good so requires." 4 True enough, a "franchise started
out as a 'royal privilege or [a] branch of the King's prerogative, subsisting in the hands of a subject.'" 5

Indeed, while the Constitution expressly provides that "[a]ll lands of the public domain, waters,
mineral, coal, petroleum, and other mineral oils, all forces, all forces of potential energy, fisheries,
forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State," it is
silent as to the ownership of the airwaves and frequencies. It is then reasonable to say that no one
owns them. Like the air we breathe and the sunshine that sustains life, the air lanes themselves "are
not property because they cannot be appropriated for the benefit of any individual," 6 but are to be used to
the best advantage of all.

Because, as mentioned earlier, there are more prospective users than frequencies, the State in
the exercise of its police power allocates, supervises and regulates their use, so as to derive
maximum benefit for the general public. The franchise granted by the legislature to broadcasting
companies is essentially for the purpose of putting order in the use of the airwaves by assigning to
such companies their respective frequencies. The purpose is not to grant them the privilege of using
public property. For, as earlier stated, airwaves are not owned by the government.

Accordingly, the National Telecommunications Commission (NTC) was tasked by law to

institutionalize this regulation of the air lanes. To cover the administrative cost of supervision and
regulation, the NTC levies charges, which have been revised upwards in NTC Memorandum Circular
No. 14-8-94 dated August 26, 1994. In accordance with this Circular, Petitioner GMA Network, Inc.,
for the year 1996, paid the NTC P2,880,591 of which P2,501,776.30 was NTC "supervision and
regulation fee," as borne out by its Audited Consolidated Financial Statements for said year, on file
with the Securities and Exchange Commission. In short, for its work of allocation, supervision and
regulation, the government is adequately compensated by the broadcast media through the payment
of fees unilaterally set by the former.

Franchisee's Property Cannot

Be Taken Without Just Compensation

In stamping unbridled donations with its imprimatur, the majority overlooks the twofold nature and
purpose of a franchise: other than serving the public benefit which is subject to government
regulation, it must also be to the franchise holder's advantage. Once granted, a franchise (not the air
lanes) together with concomitant private rights, becomes property of the grantee. 7 It is regarded by law
precisely as other property and, as any other property, it is safeguarded by the Constitution from arbitrary revocation or impairment. 8 The
rights under a franchise can be neither taken nor curtailed for public use or purpose, even by the government as the grantor, without
payment of just compensation 9 as guaranteed under our fundamental law. 10 The fact that the franchise relates to public use or purpose
does not entitle the state to abrogate or impair its use without just compensation. 11

The majority further claims that, constitutionally, 12 franchises are always subject to alteration by Congress, "when the
common good so requires." The question then boils down to this: Does Section 92 of the Omnibus Election Code constitute a franchise
modification for the "common good," or an "unlawful taking of private property"? To answer this question, I go back to Philippine Press
Institute, Inc. vs. Commission on Elections, where a unanimous Supreme Court held: 13

To compel print media companies to donate "Comelec space" of the dimensions specified in
Section 2 of Resolution No. 2772 (not less than one-half page), amounts to "taking" of private
personal property for public use or purposes. Section 2 failed to specify the intended frequency of
such compulsory "donation:" only once during the period from 6 March 1995 (or 21 March 1995)
until 12 May 1995? or everyday or once a week? or as often as Comelec may direct during the
same period? The extent of the taking or deprivation is not insubstantial; this is not a case of a de
minimis temporary limitation or restraint upon the use of private property. The monetary value of
the compulsory "donation," measured by the advertising rates ordinarily charged by newspaper
publishers whether in cities or in non-urban areas, may be very substantial indeed. (Emphasis in
original)

"Common Good" Does Not Justify Unbridled

Taking of Franchisee's Broadcast Time

Like the questioned resolution in PPI, Section 92 contains no limit as to the amount and recurrence of the "donation" of air time that Comelec
can demand from radio and TV stations. There are no guidelines or standards provided as to the choice of stations, time and frequency of
airing, and programs to be aired. Theoretically, Comelec can compel the use of all the air time of a station. The fact that Comelec has not
exercised its granted power arbitrarily is immaterial because the law, as worded, admits of unbridled exercise.

A statute is considered void for overbreadth when "it offends the constitutional principle that
a governmental purpose to control or prevent activities constitutionally subject to state
regulations may not be achieved by means which sweep unnecessarily broadly and thereby
invade the area of protected freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]). In a
series of decisions this Court has held that, even though the governmental purpose be
legitimate and substantial, that purpose cannot be pursued by means that broadly stifle
fundamental personal liberties when the end can be more narrowly achieved. The breadth of
legislative abridgment must be viewed in the light of less drastic means for achieving the
same basic purpose. 14

In a 1968 opinion, the American Supreme Court made clear that the absence of such
reasonable and definite standards in a legislation of its character is fatal. Where, as in the
case of the above paragraphs, the majority of the Court could discern "an overbreadth that
makes possible oppressive or capricious application" of the statutory provisions, the line
dividing the valid from the constitutionally infirm has been crossed. Such provisions offend
the constitutional principle that "a governmental purpose to control or prevent activities
constitutionally subject to state regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms."

It is undeniable, therefore, that even though the governmental purpose be legitimate and
substantial, they cannot be pursued by means that broadly stifle fundamental personal
 liberties when the end can be more narrowly achieved. For precision of regulation is the
touchstone in an area so closely related to our most precious freedoms. 15

As a rule, a statute may be said to be vague and invalid if "it leaves law enforces (in the case, the
Comelec) unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the
government muscle." 16

Moreover, the extent of the actual taking of air time is enormous, exorbitant and unreasonable. In
their Memorandum, 17 petitioners allege (and this has not been rebutted at all) that during the 1992 election period, GMA Network
has been compelled to donate P22,498.560 worth of advertising revenues; and for the current election period, GMA stands to lose a
staggering P58,980,850. Now, clearly and most obviously, these amounts are not inconsequential or de minimis. They constitute arbitrary
taking on a grand scale!

American jurisprudence is replete with citations showing that "[l]egislative regulation of public utilities
must not have the effect of depriving an owner of his property without due process of law, nor of
confiscating or appropriating private property without due process of law, nor of confiscating or
appropriating private property without just compensation, nor of limiting or prescribing irrevocably
vested rights or privileges lawfully acquired under a charter or franchise." The power to regulate is
subject to these constitutional limits. 18 Consequently, "rights under a franchise cannot be taken or damaged for a public use
without the making of just compensation therefor." 19 To do so is clearly beyond the power of the legislature to regulate.

II. Assuming That the State Owns Air Lanes,

Broadcast Companies Already Pay Rental Therefor.

Let me grant for the moment and for the sake of argument that the State owns the air lanes and that,
by its grant of a franchise, it should thus receive compensation for the use of said frequencies. I say,
however, that by remitting unreasonably high "annual fees and charges," which as earlier stated
amounts to millions of pesos yearly, television stations are in effect paying rental fees for the use
(not just the regulation) of said frequencies. Except for the annual inspection conducted by the NTC,
no other significant service is performed by the government in exchange for the enormous fees
charged the stations. Evidently, the sums collected by the NTC exceed the cost of services
performed by it, and are therefore more properly understood as rental fees for the use of the
frequencies granted them. 20

Since the use of the air frequencies is already paid for annually by the broadcast entities, there is no
basis for the government, through the Comelec, to compel unbridled donation of the air time of said
companies without due process and without payment of just compensation.

In fact, even in the case of state-owned resources referred to earlier like oil, minerals and coal
once the license to exploit and develop them is granted to a private corporation, the government can
no longer arbitrarilyconfiscate or appropriate them gratis under the guise of serving the common
good. Crude oil, for instance, once explored, drilled, and refined is thereafter considered the property
of the authorized explorer (or refiner) which can sell it to the public and even to the government
itself. The State simply cannot demand free gasoline for the operation of public facilities even if they
benefit the people in general. It still has to pay compensation therefor.

III. Airwaves Useless Without Huge

Investment of Broadcast Companies

Setting up and operating a credible broadcasting network requires billions of pesos in investments. It
is precisely the broadcast licensee's use of a state-granted franchise or privilege which occasions its
acquisition of private property in the form of broadcast facilities and its production of air time. These
properties are distinct from its franchise. 21 The 1996 Audited Consolidated Balance Sheet of Petitioner GMA, on file with the
SEC, shows that its "property and equipment," which it uses in its broadcast function, amount to over one billion pesos or, to be exact,
P1,245,741,487. 22 This does not include the cost of producing the programs to be broadcast, talent fees and other aspects of broadcasting.
In their Memorandum, 23 petitioners explain that the total cost for GMA to stay on the air (for television) at present is approximately P136,100
per hour, which includes electricity, depreciation, repairs and maintenance, technical facilities, salaries, and so on. The point is: The
franchise holders can recover their huge investments only by selling air time to advertisers. This is their "product," their valuable property
which Section 92 forcibly takes from them in massive amounts without payment of just compensation.

It is too simplistic to say that because the Constitution allows Congress to alter franchises, ergo, an
unbridled taking of private property may be allowed. If such appropriation were only, to use the
words of PPI vs. Comelec, de minimis or insignificant say, one hour once or twice a month
perhaps, it can be justified by the promotion of the "common good." But a taking in the gargantuan
amount of over P58 million from Petitioner GMA for the 1998 election season alone is an actual
seizure of its private investment, and not at all a reasonable "compensation" or "alteration" for the
"common good." Certainly, this partakes of CONFISCATION of private property.

What makes the taking of air time even more odious is its ex post facto nature. When the broadcast
companies acquired their franchises and set up their expensive facilities, they were not informed of
the immensity of the donations they are now compelled to give.

Note should be made, too, of the fact that what Section 92 takes away is air time. Air time is the
"finished product" after a station uses its own broadcast facilities. The frequency is lust the specific
"route" or "channel" by which this medium reaches the TV sets of the general public. Technically,
therefore, the wholesale alteration by Section 92 of all broadcast franchise would appear unrelated
to the compelled donations. While the express modification is in the franchise, what Section 92 really
does is that it takes away the end product of the facilities which were set up through the use of the
entrepreneurs' investments and the broadcasters' work.

EPILOGUE

By way of epilogue, I must point out that even Respondent Comelec expressly recognizes the need
for just compensation. Thus, Section 2 of its Resolution No. 2983-A states that "[e]very radio
broadcasting and television station operating under franchise shall grant the Commission, upon
payment of just compensation, at least thirty (30) minutes of prime time daily to be known as
'Comelec Time' . . ." And yet, even with such a judicious legal position taken by the very agency
tasked by the Constitution to administer elections, the majority still insists on an arbitrary seizure of
precious property produced and owned by private enterprise.

That Petitioner GMA is a viable, even profitable, enterprise 24 is no argument for seizing its profits. The State cannot
rob the rich to feed the poor in the guise of promoting the "common good." Truly, the end never justifies the means.

It cannot be denied that the amount and the extent of the air time demanded from GMA is huge and
exorbitant, amounting, I repeat, to over P58 million for the 1998 election season alone. If the air time
required from "every radio and television station" in the country in the magnitude stated in the
aforesaid Comelec Resolution 2983-A is added up and costed, the total would indeed be staggering
in several hundred million pesos.

Smacking of undisguised discrimination is the fact that in PPI vs. Comelec, this Court has required
payment of print media ads but, in this case, compels broadcast stations to donate their end product
on a massive scale. The simplistic distinction given that radio and TV stations are mere grantees
of government franchises while newspaper companies are not does not justify the grand larceny
of precious air time. This is a violation not only of private property, but also of the constitutional right
to equal protection itself. The proffered distinction between print and broadcast media is too
insignificant and too flimsy to be a valid justification for the discrimination. The print and broadcast
media are equal in the sense that both derive their revenues principally from paid ads. They should
thus be treated equally by the law in respect of such ads.

To sum up, the Bill of Rights of our Constitution expressly guarantees the following rights:

1. No person, whether rich or poor, shall be deprived of property without due process. 25

2. Such property shall not be taken by the government, even for the use of the general public,
without first paying just compensation to the owner. 26

3. No one, regardless of social or financial status, shall be denied equal protection of the law. 27

The majority, however, peremptorily brushes aside all these sacred guarantees and prefers to rely
on the nebulous legal theory that broadcast stations are mere recipients of state-granted franchises
which can be altered or withdrawn anytime or otherwise burdened with post facto elephantine yokes.
By this short-circuited rationalization, the majority blithely ignores the private entrepreneurs' billion-
peso investments and the broadcast professionals' grit and toil in transforming these invisible
franchises into merchandisable property; and conveniently forgets the grim reality that the taking of
honestly earned media assets is unbridled, exorbitant and arbitrary. Worse, the government,28 against
which these constitutional rights to property were in the first place written, prudently agrees to respect them and to pay adequate
compensation for their taking. But ironically, the majority rejects the exemplary observance by the government of the people's rights and
insists on the confiscation of their private property.

I have always believed that the Supreme Court is the ever vigilant guardian of the constitutional
rights of the citizens and their ultimate protector against the tyrannies of their own government. I am
afraid that by this unfortunate Decision, the majority, in this instance, has instead converted this
honorable and majestic Court into the people's unwitting oppressor.

WHEREFORE, I vote to GRANT the petition and to declare Section 92 of the Omnibus Election
Code UNCONSTITUTIONAL and VOID.

Purisima, J., dissents.

Separate Opinions

VITUG, J., separate opinion;

I assent in most part to the well-considered opinion written by Mr. Justice Vicente V. Mendoza in
his ponencia, particularly, in holding that petitioner TELEBAP lacks locus standi in filing the instant
petition and in declaring that Section 92 of Batas Pambansa Blg. 881 is a legitimate exercise of
police power of the State.

The grant of franchise to broadcast media is a privilege burdened with responsibilities. While it is,
primordially, a business enterprise, it nevertheless, also addresses in many ways certain imperatives
of public service. In Stone vs.Mississippi (101, U.S. 814, cited in Cruz, Constitutional Law, 1995 ed.,
p. 40.), a case involving a franchise to sell lotteries which petitioner claims to be a contract which
may not be impaired, the United States Supreme Court opined:
 . . . (T)he Legislature cannot bargain away the police power of a State. Irrevocable grants of
property and franchises may be made if they do not impair the supreme authority to make
laws for the right government of the State; but no Legislature can curtail the power of its
successors to make such laws as they may deem proper in matters of police. . .

In this case, the assailed law, in my view, has not failed in meeting the standards set forth for its
lawful exercise, i.e., (a) that its utilization is demanded by the interests of the public, and (b) that the
means employed are reasonably necessary, and not unduly oppressive, for the accomplishment of
the purposes and objectives of the law.

I cannot consider COMELEC Resolution No. 2983-A, particularly Section 2 thereof, as being in
contravention of B.P. No. 881. There is nothing in the law that prohibits the COMELEC from itself
procuring airtime, perhaps longer than that which can reasonably be allocated, if it believes that in so
opting, it does so for the public good.

I vote to DISMISS the petition.

ROMERO, J., dissenting;

Section 92 of BP 881 constitutes taking of private property without just compensation. The power of
eminent domain is a power inherent in sovereignty and requires no constitutional provision to give it
force. It is the rightful authority which exists in every sovereignty, to control and regulate those rights
of a public nature which pertain to its citizens in common, and to appropriate and control individual
property for the public benefit as the public safety, necessity, convenience or welfare demand. 1 The
right to appropriate private property to public use, however, lies dormant in the state until legislative action is had, pointing out the occasions,
the modes, the conditions and agencies for its appropriation. 2

Section 92 of BP 881 states

Sec. 92. Comelec Time The Comelec shall procure radio and television time to be
known as "Comelec Time" which shall be allocated equally and impartially among the
candidates within the area of coverage of all radio and television stations. For this purpose,
the franchise of all radio and television stations are hereby attended so as to provide radio
and television time free of charge during the period of election campaign.

Pursuant to Section 92 of BP 881, respondent COMELEC on March 3, 1998 passed Resolution

2983-A, the pertinent provision of which reads as follows:

Sec. 2. Grant of "Comelec Time." Every radio broadcasting and television station
operating under franchise shall grant the Commission, upon payment of just compensation,
at least thirty (30) minutes of prime time daily, to be known as "Comelec Time," effective
February 10, 1998 for candidates for President, Vice-President and Senators, and effective
March 27, 1998, for candidates for local elective offices, until May 9, 1998.

Section 92 of BP 881, insofar as it requires radio and television stations to provide Comelec with
radio and television time free of charge is a flagrant violation of the constitutional mandate that
private property shall not be taken for public use without just compensation. While it is inherent in the
State, the sovereign right to appropriate property has never been understood to include taking
property for public purposes without the duty and responsibility of ordering compensation to the
individual whose property has been sacrificed for the good of the community. Hence, Section 9
Article III of the 1987 Constitution which reads "No private property shall be taken for public use
without just compensation," gives us two limitations on the power of eminent domain: (1) the purpose
of taking must be for public use and (2) just compensation must be given to the owner of the private
property.

There is, of course, no question that the taking of the property in the case at bar is for public use, i.e.
to ensure that air time is allocated equally among the candidates, however, there is no justification
for the taking without payment of just compensation. While Resolution No. 2983-A has provided that
just compensation shall be paid for the 30 minutes of prime time granted by the television stations to
respondent Comelec, we note that the resolution was passed pursuant to Section 92 of BP 881
which mandates that radio and television time be provided to respondent Comelec free of charge.
Since the legislative intent is the controlling element in determining the administrative powers, rights,
privileges and immunities granted, 3 respondent Comelec may, at any time, despite the resolution passed, compel television
and radio stations to provide it with airtime free of charge.

Apparently, Sec. 92 of BP 881 justices such taking under the guise of police power regulation which
cannot be validly done. Police power must be distinguished from the power of eminent domain. In
the exercise of police power, there is a restriction of property interest to promote public welfare or
interest which involves no compensable taking. When the power of eminent domain, however, is
exercised, property interest is appropriated and applied to some public purpose, necessitating
compensation therefor. Traditional distinctions between police power and the power of eminent
domain precluded application of both powers at the same time in the same subject. 4 Hence, in the case
of City of Baguio v. NAWASA, 5 the Court held that a law requiring the transfer of all municipal waterworks systems to NAWASA in exchange
for its assets of equivalent value involved the exercise of eminent domain because the property involved was wholesome and intended for
public use. Property condemned under the exercise of police power, on the other hand, is noxious or intended for noxious purpose and,
consequently, is not compensable. Police power proceeds from the principle that every holder of property, however absolute and unqualified
may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal
right to the enjoyment of their property, nor injurious to the rights of the community. Rights of property, like all other social and conventional
rights, are subject to reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraits
and regulations established by law as the legislature, under the governing and controlling power vested in them by the constitution, may think
necessary and expedient. 6

In the case of Small Landowners of the Philippines Inc. v. Secretary of Agrarian Reform, we found
occasion to note that recent trends show a mingling of the police power and the power of eminent
domain, with the latter being used as an implement of the former like the power of taxation. Citing
the cases of Berman v. Parker 7 and Penn Central Transportation Co. v. New York City 8 where owners of the Grand Central
Terminal who were not allowed to construct a multi-story building to preserve a historic landmark were allowed certain compensatory rights
to mitigate the loss caused by the regulation, this Court is Small Landowners of the Philippines, Inc. case held that measures prescribing
retention limits for landowners under the Agrarian Reform Law involved the exercise of police power for the regulation of private property in
accordance with the constitution. And, where to carry out the regulation, it became necessary to deprive owners of whatever lands they may
own in excess of the maximum area allowed, the Court held that there was definitely a taking under the power of eminent domain for which
payment of just compensation was imperative.

The petition before us is no different from the above-cited case. Insofar as See 92 of BP 881 read in
conjunction with Sec 11(b) of RA 6646 restricts the sale or donation of airtime by radio and television
stations during the campaign period to respondent Comelec, there is an exercise of police power for
the regulation of property in accordance with the Constitution. To the extent however that Sec 92 of
BP 881 mandates that airtime be provided free of charge to respondent Comelec to be allocated
equally among all candidates, the regulation exceeds the limits of police power and should be
recognized as a taking. In the case of Pennsylvania Coal v. Mahon, 9 Justice Holmes laid down the limits of police
power in this wise," The general rule is that while property may be regulated to a certain extent, if the regulation goes too far, it will be
recognized as a taking."

While the power of eminent domain often results in the appropriation of title to or possession of
property, it need not always be the case. It is a settled rule that neither acquisition of title nor total
destruction of value is essential to taking and it is usually in cases where title remains with the
private owner that inquiry should be made to determine whether the impairment of a property is
merely regulated or amounts to a compensable taking. A regulation which deprives any person of
the profitable use of his property constitutes a taking and entitles him to compensation unless the
invasion of rights is so slight as to permit the regulation to be justified under the police power.
Similarly, a police regulation which unreasonably restricts the right to use business property for
business purposes, amounts to taking of private property and the owner may recover therefor. 10 It is
also settled jurisprudence that acquisition of right of way easement falls within the purview of eminent domain. 11

While there is no taking or appropriation of title to, and possession of the expropriated property in the
case at bar, there is compensable taking inasmuch as them is a loss of the earnings for the airtime
which the petitioner-intervenors are compelled to donate. It is a loss which, to paraphrase Philippine
Press Institute v. Comelec, 12 could hardly be considered "de minimis" if we are to take into account the monetary value of the
compulsory donation measured by the current advertising rates of the radio and television stations.

In the case of Philippine Press Institute v. Comelec, 13 we had occasion to state that newspapers and other print media
are not compelled to donate free space to respondent Comelec inasmuch as this would be in violation of the constitutional provision that no
private property shall be taken for public use without just compensation. We find no cogent reason why radio and television stations should
be treated considering that their operating expenses as compared to those of the newspaper and other print media publishers involve
considerably greater amount of financial resources.

The fact that one needs a franchise from government to establish a radio and television station while
no license is needed to start a newspaper should not be made a basis for treating broadcast media
any differently from the print media in compelling the former to "donate" airtime to respondent
Comelec. While no franchises and rights are granted except under the condition that it shall be
subject to amendment, alteration, or repeal by the Congress when the common good so
requires, 14 this provides no license for government to disregard the cardinal rule that corporations with franchises are as much entitled to
due process and equal protection of laws guaranteed under the Constitution.

ACCORDINGLY, I vote to declare Section 92 of BP 881 insofar as it mandates that radio and
television time be provided to respondent Comelec free of charge UNCONSTITUTIONAL.

PANGANIBAN, J., dissenting;

At issue in this case is the constitutionality of Section 92 of the Omnibus Election Code 1 which compels all
broadcast stations in the country "to provide radio and television time, free of charge, during the period of the [election] campaigns," which
the Commission on Elections shall allocate "equally and impartially among the candidates . . ." Petitioners contend, and I agree, that this
legal provision is unconstitutional because it confiscates private property without due process of law and without payment of just
compensation, and denies broadcast media equal protection of the law.

In Philippine Press Institute, Inc. (PPI) vs. Commission on Elections, 2 this Court ruled that print media companies
cannot be required to donate advertising space, free of charge, to the Comelec for equal allocation among candidates, on the ground that
such compulsory seizure of print space is equivalent to a proscribed taking of private property for public use without payment of just
compensation. 3

The Court's majority in the present case, speaking through the distinguished Mr. Justice Vicente V.
Mendoza, holds, however, that the foregoing PPI doctrine applies only to print media, not to
broadcast (radio and TV) networks, arguing that "radio and television broadcasting companies,
which are given franchises, do not own the airwaves and frequencies through which they transmit
broadcast signals and images. They are merely given the temporary privilege of using them. Since a
franchise is a mere privilege, the exercise of the privilege may reasonably be burdened with the
performance by the grantee of some form of public service." In other words, the majority theorizes
that the forced donation of air time to the Comelec is a means by which the State gets compensation
for the grant of the franchise and/or the use of the air lanes.

With all due respect, I disagree. The majority is relying on a theoretical distinction that does not
make any real difference. Theory must yield to reality. I respectfully submit the following arguments
to support my dissent:
1. The State does not own the airwaves and broadcast frequencies. It merely allocates, supervises
and regulates their proper use. Thus, other than collecting supervision or regulatory fees which it
already does, it cannot exact any onerous and unreasonable post facto burdens from the franchise
holders, without due process and just compensation. Moreover, the invocation of the "common
good" does not excuse the unbridled and clearly excessive taking of a franchisee's property.

2. Assuming arguendo that the State owns the air lanes, the broadcasting companies already pay
rental fees to the government for their use. Hence, the seizure of air time cannot be justified by the
theory of compensation.

3. Airwaves and frequencies alone, without the radio and television owner's humongous investments
amounting to billions of pesos, cannot be utilized for broadcasting purposes. Hence, a forced
donation of broadcast time is in actual fact a taking of such investments without due process and
without payment of just compensation.

Let me explain further each of these arguments.

I. The State Does Not Own Air Lanes:

It Merely Regulates Their Proper Use;

"Common Good" Does Not Excuse Unbridled Taking.

Significantly, the majority does not claim that the State owns the air lanes. It merely contends that
"broadcasting, whether by radio or by television stations, is licensed by the government. Airwave
frequencies have to be allocated as there are more individuals who want to broadcast than there are
frequencies to assign. A franchise is thus a privilege subject among other thing . . . to amendment,
alteration or repeal by the Congress when the common good so requires." 4 True enough, a "franchise started
out as a 'royal privilege or [a] branch of the King's prerogative, subsisting in the hands of a subject.'" 5

Indeed, while the Constitution expressly provides that "[a]ll lands of the public domain, waters,
mineral, coal, petroleum, and other mineral oils, all forces, all forces of potential energy, fisheries,
forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State," it is
silent as to the ownership of the airwaves and frequencies. It is then reasonable to say that no one
owns them. Like the air we breathe and the sunshine that sustains life, the air lanes themselves "are
not property because they cannot be appropriated for the benefit of any individual," 6 but are to be used to
the best advantage of all.

Because, as mentioned earlier, there are more prospective users than frequencies, the State in
the exercise of its police power allocates, supervises and regulates their use, so as to derive
maximum benefit for the general public. The franchise granted by the legislature to broadcasting
companies is essentially for the purpose of putting order in the use of the airwaves by assigning to
such companies their respective frequencies. The purpose is not to grant them the privilege of using
public property. For, as earlier stated, airwaves are not owned by the government.

Accordingly, the National Telecommunications Commission (NTC) was tasked by law to

institutionalize this regulation of the air lanes. To cover the administrative cost of supervision and
regulation, the NTC levies charges, which have been revised upwards in NTC Memorandum Circular
No. 14-8-94 dated August 26, 1994. In accordance with this Circular, Petitioner GMA Network, Inc.,
for the year 1996, paid the NTC P2,880,591 of which P2,501,776.30 was NTC "supervision and
regulation fee," as borne out by its Audited Consolidated Financial Statements for said year, on file
with the Securities and Exchange Commission. In short, for its work of allocation, supervision and
regulation, the government is adequately compensated by the broadcast media through the payment
of fees unilaterally set by the former.

Franchisee's Property Cannot

Be Taken Without Just Compensation

In stamping unbridled donations with its imprimatur, the majority overlooks the twofold nature and
purpose of a franchise: other than serving the public benefit which is subject to government
regulation, it must also be to the franchise holder's advantage. Once granted, a franchise (not the air
lanes) together with concomitant private rights, becomes property of the grantee. 7 It is regarded by law
precisely as other property and, as any other property, it is safeguarded by the Constitution from arbitrary revocation or impairment. 8 The
rights under a franchise can be neither taken nor curtailed for public use or purpose, even by the government as the grantor, without
payment of just compensation 9 as guaranteed under our fundamental law. 10 The fact that the franchise relates to public use or purpose
does not entitle the state to abrogate or impair its use without just compensation. 11

The majority further claims that, constitutionally, 12 franchises are always subject to alteration by Congress, "when the
common good so requires." The question then boils down to this: Does Section 92 of the Omnibus Election Code constitute a franchise
modification for the "common good," or an "unlawful taking of private property"? To answer this question, I go back to Philippine Press
Institute, Inc. vs. Commission on Elections, where a unanimous Supreme Court held: 13

To compel print media companies to donate "Comelec space" of the dimensions specified in
Section 2 of Resolution No. 2772 (not less than one-half page), amounts to "taking" of private
personal property for public use or purposes. Section 2 failed to specify the intended frequency of
such compulsory "donation:" only once during the period from 6 March 1995 (or 21 March 1995)
until 12 May 1995? or everyday or once a week? or as often as Comelec may direct during the
same period? The extent of the taking or deprivation is not insubstantial; this is not a case of a de
minimis temporary limitation or restraint upon the use of private property. The monetary value of
the compulsory "donation," measured by the advertising rates ordinarily charged by newspaper
publishers whether in cities or in non-urban areas, may be very substantial indeed. (Emphasis in
original)

"Common Good" Does Not Justify Unbridled

Taking of Franchisee's Broadcast Time

Like the questioned resolution in PPI, Section 92 contains no limit as to the amount and recurrence of the "donation" of air time that Comelec
can demand from radio and TV stations. There are no guidelines or standards provided as to the choice of stations, time and frequency of
airing, and programs to be aired. Theoretically, Comelec can compel the use of all the air time of a station. The fact that Comelec has not
exercised its granted power arbitrarily is immaterial because the law, as worded, admits of unbridled exercise.

A statute is considered void for overbreadth when "it offends the constitutional principle that
a governmental purpose to control or prevent activities constitutionally subject to state
regulations may not be achieved by means which sweep unnecessarily broadly and thereby
invade the area of protected freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]). In a
series of decisions this Court has held that, even though the governmental purpose be
legitimate and substantial, that purpose cannot be pursued by means that broadly stifle
fundamental personal liberties when the end can be more narrowly achieved. The breadth of
legislative abridgment must be viewed in the light of less drastic means for achieving the
same basic purpose. 14

In a 1968 opinion, the American Supreme Court made clear that the absence of such
reasonable and definite standards in a legislation of its character is fatal. Where, as in the
case of the above paragraphs, the majority of the Court could discern "an overbreadth that
makes possible oppressive or capricious application" of the statutory provisions, the line
 dividing the valid from the constitutionally infirm has been crossed. Such provisions offend
the constitutional principle that "a governmental purpose to control or prevent activities
constitutionally subject to state regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms."

It is undeniable, therefore, that even though the governmental purpose be legitimate and
substantial, they cannot be pursued by means that broadly stifle fundamental personal
liberties when the end can be more narrowly achieved. For precision of regulation is the
touchstone in an area so closely related to our most precious freedoms. 15

As a rule, a statute may be said to be vague and invalid if "it leaves law enforces (in the case, the
Comelec) unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the
government muscle." 16

Moreover, the extent of the actual taking of air time is enormous, exorbitant and unreasonable. In
their Memorandum, 17 petitioners allege (and this has not been rebutted at all) that during the 1992 election period, GMA Network
has been compelled to donate P22,498.560 worth of advertising revenues; and for the current election period, GMA stands to lose a
staggering P58,980,850. Now, clearly and most obviously, these amounts are not inconsequential or de minimis. They constitute arbitrary
taking on a grand scale!

American jurisprudence is replete with citations showing that "[l]egislative regulation of public utilities
must not have the effect of depriving an owner of his property without due process of law, nor of
confiscating or appropriating private property without due process of law, nor of confiscating or
appropriating private property without just compensation, nor of limiting or prescribing irrevocably
vested rights or privileges lawfully acquired under a charter or franchise." The power to regulate is
subject to these constitutional limits. 18 Consequently, "rights under a franchise cannot be taken or damaged for a public use
without the making of just compensation therefor." 19 To do so is clearly beyond the power of the legislature to regulate.

II. Assuming That the State Owns Air Lanes,

Broadcast Companies Already Pay Rental Therefor.

Let me grant for the moment and for the sake of argument that the State owns the air lanes and that,
by its grant of a franchise, it should thus receive compensation for the use of said frequencies. I say,
however, that by remitting unreasonably high "annual fees and charges," which as earlier stated
amounts to millions of pesos yearly, television stations are in effect paying rental fees for the use
(not just the regulation) of said frequencies. Except for the annual inspection conducted by the NTC,
no other significant service is performed by the government in exchange for the enormous fees
charged the stations. Evidently, the sums collected by the NTC exceed the cost of services
performed by it, and are therefore more properly understood as rental fees for the use of the
frequencies granted them. 20

Since the use of the air frequencies is already paid for annually by the broadcast entities, there is no
basis for the government, through the Comelec, to compel unbridled donation of the air time of said
companies without due process and without payment of just compensation.

In fact, even in the case of state-owned resources referred to earlier like oil, minerals and coal
once the license to exploit and develop them is granted to a private corporation, the government can
no longer arbitrarilyconfiscate or appropriate them gratis under the guise of serving the common
good. Crude oil, for instance, once explored, drilled, and refined is thereafter considered the property
of the authorized explorer (or refiner) which can sell it to the public and even to the government
itself. The State simply cannot demand free gasoline for the operation of public facilities even if they
benefit the people in general. It still has to pay compensation therefor.
 III. Airwaves Useless Without Huge

Investment of Broadcast Companies

Setting up and operating a credible broadcasting network requires billions of pesos in investments. It
is precisely the broadcast licensee's use of a state-granted franchise or privilege which occasions its
acquisition of private property in the form of broadcast facilities and its production of air time. These
properties are distinct from its franchise. 21 The 1996 Audited Consolidated Balance Sheet of Petitioner GMA, on file with the
SEC, shows that its "property and equipment," which it uses in its broadcast function, amount to over one billion pesos or, to be exact,
P1,245,741,487. 22 This does not include the cost of producing the programs to be broadcast, talent fees and other aspects of broadcasting.
In their Memorandum, 23 petitioners explain that the total cost for GMA to stay on the air (for television) at present is approximately P136,100
per hour, which includes electricity, depreciation, repairs and maintenance, technical facilities, salaries, and so on. The point is: The
franchise holders can recover their huge investments only by selling air time to advertisers. This is their "product," their valuable property
which Section 92 forcibly takes from them in massive amounts without payment of just compensation.

It is too simplistic to say that because the Constitution allows Congress to alter franchises, ergo, an
unbridled taking of private property may be allowed. If such appropriation were only, to use the
words of PPI vs. Comelec, de minimis or insignificant say, one hour once or twice a month
perhaps, it can be justified by the promotion of the "common good." But a taking in the gargantuan
amount of over P58 million from Petitioner GMA for the 1998 election season alone is an actual
seizure of its private investment, and not at all a reasonable "compensation" or "alteration" for the
"common good." Certainly, this partakes of CONFISCATION of private property.

What makes the taking of air time even more odious is its ex post facto nature. When the broadcast
companies acquired their franchises and set up their expensive facilities, they were not informed of
the immensity of the donations they are now compelled to give.

Note should be made, too, of the fact that what Section 92 takes away is air time. Air time is the
"finished product" after a station uses its own broadcast facilities. The frequency is lust the specific
"route" or "channel" by which this medium reaches the TV sets of the general public. Technically,
therefore, the wholesale alteration by Section 92 of all broadcast franchise would appear unrelated
to the compelled donations. While the express modification is in the franchise, what Section 92 really
does is that it takes away the end product of the facilities which were set up through the use of the
entrepreneurs' investments and the broadcasters' work.

EPILOGUE

By way of epilogue, I must point out that even Respondent Comelec expressly recognizes the need
for just compensation. Thus, Section 2 of its Resolution No. 2983-A states that "[e]very radio
broadcasting and television station operating under franchise shall grant the Commission, upon
payment of just compensation, at least thirty (30) minutes of prime time daily to be known as
'Comelec Time' . . ." And yet, even with such a judicious legal position taken by the very agency
tasked by the Constitution to administer elections, the majority still insists on an arbitrary seizure of
precious property produced and owned by private enterprise.

That Petitioner GMA is a viable, even profitable, enterprise 24 is no argument for seizing its profits. The State cannot
rob the rich to feed the poor in the guise of promoting the "common good." Truly, the end never justifies the means.

It cannot be denied that the amount and the extent of the air time demanded from GMA is huge and
exorbitant, amounting, I repeat, to over P58 million for the 1998 election season alone. If the air time
required from "every radio and television station" in the country in the magnitude stated in the
aforesaid Comelec Resolution 2983-A is added up and costed, the total would indeed be staggering
in several hundred million pesos.
Smacking of undisguised discrimination is the fact that in PPI vs. Comelec, this Court has required
payment of print media ads but, in this case, compels broadcast stations to donate their end product
on a massive scale. The simplistic distinction given that radio and TV stations are mere grantees
of government franchises while newspaper companies are not does not justify the grand larceny
of precious air time. This is a violation not only of private property, but also of the constitutional right
to equal protection itself. The proffered distinction between print and broadcast media is too
insignificant and too flimsy to be a valid justification for the discrimination. The print and broadcast
media are equal in the sense that both derive their revenues principally from paid ads. They should
thus be treated equally by the law in respect of such ads.

To sum up, the Bill of Rights of our Constitution expressly guarantees the following rights:

1. No person, whether rich or poor, shall be deprived of property without due process. 25

2. Such property shall not be taken by the government, even for the use of the general public,
without first paying just compensation to the owner. 26

3. No one, regardless of social or financial status, shall be denied equal protection of the law. 27

The majority, however, peremptorily brushes aside all these sacred guarantees and prefers to rely
on the nebulous legal theory that broadcast stations are mere recipients of state-granted franchises
which can be altered or withdrawn anytime or otherwise burdened with post facto elephantine yokes.
By this short-circuited rationalization, the majority blithely ignores the private entrepreneurs' billion-
peso investments and the broadcast professionals' grit and toil in transforming these invisible
franchises into merchandisable property; and conveniently forgets the grim reality that the taking of
honestly earned media assets is unbridled, exorbitant and arbitrary. Worse, the government,28 against
which these constitutional rights to property were in the first place written, prudently agrees to respect them and to pay adequate
compensation for their taking. But ironically, the majority rejects the exemplary observance by the government of the people's rights and
insists on the confiscation of their private property.

I have always believed that the Supreme Court is the ever vigilant guardian of the constitutional
rights of the citizens and their ultimate protector against the tyrannies of their own government. I am
afraid that by this unfortunate Decision, the majority, in this instance, has instead converted this
honorable and majestic Court into the people's unwitting oppressor.

WHEREFORE, I vote to GRANT the petition and to declare Section 92 of the Omnibus Election
Code UNCONSTITUTIONAL and VOID.

Purisima, J., dissents.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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; Coffman vs. 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.

xxx xxx xxx

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 complete control. 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 complete control. 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 privileges
have 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 ismerely 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.

Paras, C. J., Padilla, Montemayor, Reyes, A., and Jugo, JJ., concur.

Footnotes

1 Court will not pass upon the validity of statute at the instance of one who has availed itself
of its benefits. (Fahey vs. Mallonee, 322 U. S. 245; 91 L. Ed. 2030; Phil. Scrappers
Inc. vs. Auditor-General, 96 Phil., 449.)

2 Cf. Montenegro vs. Castaeda, 48 Off. Gaz (8) 3392.

3 It should be observed that petitioners may not assert complete liberty to teach, in their
schools, as or what they please; because the Constitution says "All schools shall aim to
develop moral character, personal discipline, civil conscience and vocational efficiency and
to teach the duties of citizenship." (Art. XIV, Sec. 5.) Would petitioners assert that pursuant
to their civil liberties under the Bill of Rights they may refuse to teach in their schools the
duties of citizenship or that they may authorize the broadcast therein of immoral doctrines?

TELEBAP vs COMELEC
FEBRUARY 24, 2015

TELEBAP vs COMELEC
G.R. No. 132922, April 21, 1998
Facts: Petitioners challenge the validity of 92 of B.P. Blg. 881. on the ground (1) that it takes property
without due process of law and without just compensation; (2) that it denies radio and television
broadcast companies the equal protection of the laws; and (3) that it is in excess of the power given to
the COMELEC to supervise or regulate the operation of media of communication or information
during the period of election.
Issue: Whether is in excess of the power given to the COMELEC to supervise or regulate the operation
of media of communication or information during the period of election.
Held: No. The petition is dismissed.
With the prohibition on media advertising by candidates themselves, the COMELEC Time and
COMELEC Space are about the only means through which candidates can advertise their qualifications
and programs of government. More than merely depriving candidates of time for their ads, the failure
of broadcast stations to provide air time unless paid by the government would clearly deprive the
people of their right to know. Art. III, 7 of the Constitution provides that the right of the people to
information on matters of public concern shall be recognized, while Art. XII, 6 states that the use
of property bears a social function [and] the right to own, establish, and operate economic enterprises
[is] subject to the duty of the State to promote distributive justice and to intervene when the common
good so demands.
G.R. No. 96541 August 24, 1993

DEAN JOSE JOYA, CARMEN GUERRERO NAKPIL, ARMIDA SIGUION REYNA, PROF.
RICARTE M. PURUGANAN, IRMA POTENCIANO, ADRIAN CRISTOBAL, INGRID SANTAMARIA,
CORAZON FIEL, AMBASSADOR E. AGUILAR CRUZ, FLORENCIO R. JACELA, JR., MAURO
MALANG, FEDERICO AGUILAR ALCUAZ, LUCRECIA R. URTULA, SUSANO GONZALES,
STEVE SANTOS, EPHRAIM SAMSON, SOLER SANTOS, ANG KIU KOK, KERIMA POLOTAN,
LUCRECIA KASILAG, LIGAYA DAVID PEREZ, VIRGILIO ALMARIO, LIWAYWAY A. ARCEO,
CHARITO PLANAS, HELENA BENITEZ, ANNA MARIA L. HARPER, ROSALINDA OROSA,
SUSAN CALO MEDINA, PATRICIA RUIZ, BONNIE RUIZ, NELSON NAVARRO, MANDY
NAVASERO, ROMEO SALVADOR, JOSEPHINE DARANG, and PAZ VETO PLANAS, petitioners,
vs.
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), CATALINO MACARAIG, JR.,
in his official capacity, and/or the Executive Secretary, and CHAIRMAN MATEO A.T.
CAPARAS, respondents.

M.M. Lazaro & Associates for petitioners.

The Solicitor General for respondents.

BELLOSILLO, J.:

All thirty-five (35) petitioners in this Special Civil Action for Prohibition and Mandamus with Prayer for
Preliminary Injunction and/or Restraining Order seek to enjoin the Presidential Commission on Good
Government (PCGG) from proceeding with the auction sale scheduled on 11 January 1991 by
Christie's of New York of the Old Masters Paintings and 18th and 19th century silverware seized
from Malacaang and the Metropolitan Museum of Manila and placed in the custody of the Central
Bank.

The antecedents: On 9 August 1990, Mateo A.T. Caparas, then Chairman of PCGG, wrote then
President Corazon C. Aquino, requesting her for authority to sign the proposed Consignment
Agreement between the Republic of the Philippines through PCGG and Christie, Manson and
Woods International, Inc. (Christie's of New York, or CHRISTIE'S) concerning the scheduled sale on
11 January 1991 of eighty-two (82) Old Masters Paintings and antique silverware seized from
Malacaang and the Metropolitan Museum of Manila alleged to be part of the ill-gotten wealth of the
late President Marcos, his relatives and cronies.

On 14 August 1990, then President Aquino, through former Executive Secretary Catalino Macaraig,
Jr., authorized Chairman Caparas to sign the Consignment Agreement allowing Christie's of New
York to auction off the subject art pieces for and in behalf of the Republic of the Philippines.

On 15 August 1990, PCGG, through Chairman Caparas, representing the Government of the
Republic of the Philippines, signed the Consignment Agreement with Christie's of New York.
According to the agreement, PCGG shall consign to CHRISTIE'S for sale at public auction the
eighty-two (82) Old Masters Paintings then found at the Metropolitan Museum of Manila as well as
the silverware contained in seventy-one (71) cartons in the custody of the Central Bank of the
Philippines, and such other property as may subsequently be identified by PCGG and accepted by
CHRISTIE'S to be subject to the provisions of the agreement. 1
On 26 October 1990, the Commission on Audit (COA) through then Chairman Eufemio C. Domingo
submitted to President Aquino the audit findings and observations of COA on the Consignment
Agreement of 15 August 1990 to the effect that: (a) the authority of former PCGG Chairman Caparas
to enter into the Consignment Agreement was of doubtful legality; (b) the contract was highly
disadvantageous to the government; (c) PCGG had a poor track record in asset disposal by auction
in the U.S.; and, (d) the assets subject of auction were historical relics and had cultural significance,
hence, their disposal was prohibited by law. 2

On 15 November 1990, PCGG through its new Chairman David M. Castro, wrote President Aquino
defending the Consignment Agreement and refuting the allegations of COA Chairman Domingo. 3 On
the same date, Director of National Museum Gabriel S. Casal issued a certification that the items subject
of the Consignment Agreement did not fall within the classification of protected cultural properties and did
not specifically qualify as part of the Filipino cultural heritage.4 Hence, this petition originally filed on 7
January 1991 by Dean Jose Joya, Carmen Guerrero Nakpil, Armida Siguion Reyna, Prof. Ricarte M.
Puruganan, Irma Potenciano, Adrian Cristobal, Ingrid Santamaria, Corazon Fiel, Ambassador E. Aguilar
Cruz, Florencio R. Jacela, Jr., Mauro Malang, Federico Aguilar Alcuaz, Lucrecia R. Urtula, Susano
Gonzales, Steve Santos, Ephraim Samson, Soler Santos, Ang Kiu Kok, Kerima Polotan, Lucrecia
Kasilag, Ligaya David Perez, Virgilio Almario and Liwayway A. Arceo.

After the oral arguments of the parties on 9 January 1991, we issued immediately our resolution
denying the application for preliminary injunction to restrain the scheduled sale of the artworks on
the ground that petitioners had not presented a clear legal right to a restraining order and that proper
parties had not been impleaded.

On 11 January 1991, the sale at public auction proceeded as scheduled and the proceeds of
$13,302,604.86 were turned over to the Bureau of Treasury. 5

On 5 February 1991, on motion of petitioners, the following were joined as additional petitioners:
Charito Planas, Helena Benitez, Ana Maria L. Harper, Rosalinda Orosa, Susan Carlo Medina,
Patricia Ruiz, Bonnie Ruiz, Nelson Navarro, Mandy Navasero, Romeo Salvador, Josephine Darang
and Paz Veto Planas.

On the other hand, Catalino Macaraig, Jr., in his capacity as former Executive Secretary, the
incumbent Executive Secretary, and Chairman Mateo A.T. Caparas were impleaded as additional
respondents.

Petitioners raise the following issues: (a) whether petitioners have legal standing to file the instant
petition; (b) whether the Old Masters Paintings and antique silverware are embraced in the phrase
"cultural treasure of the nation" which is under the protection of the state pursuant to the 1987
Constitution and/or "cultural properties" contemplated under R.A. 4846, otherwise known as "The
Cultural Properties Preservation and Protection Act;" (c) whether the paintings and silverware are
properties of public dominion on which can be disposed of through the joint concurrence of the
President and Congress;
(d) whether respondent, PCGG has the jurisdiction and authority to enter into an agreement with
Christie's of New York for the sale of the artworks; (e) whether, PCGG has complied with the due
process clause and other statutory requirements for the exportation and sale of the subject items;
and, (f) whether the petition has become moot and academic, and if so, whether the above issues
warrant resolution from this Court.

The issues being interrelated, they will be discussed jointly hereunder. However, before proceeding,
we wish to emphasize that we admire and commend petitioners' zealous concern to keep and
preserve within the country great works of art by well-known old masters. Indeed, the value of art
cannot be gainsaid. For, by serving as a creative medium through which man can express his
innermost thoughts and unbridled emotions while, at the same time, reflecting his deep-seated
ideals, art has become a true expression of beauty, joy, and life itself. Such artistic creations give us
insights into the artists' cultural heritage the historic past of the nation and the era to which they
belong in their triumphant, glorious, as well as troubled and turbulent years. It must be for this
reason that the framers of the 1987 Constitution mandated in Art. XIV, Sec. 14, that is the solemn
duty of the state to "foster the preservation, enrichment, and dynamic evolution of a Filipino national
culture based on the principle of unity in diversity in a climate of free artistic and intellectual
expression." And, in urging this Court to grant their petition, petitioners invoke this policy of the state
on the protection of the arts.

But, the altruistic and noble purpose of the petition notwithstanding, there is that basic legal question
which must first be resolved: whether the instant petition complies with the legal requisites for this
Court to exercise its power of judicial review over this case.

The rule is settled that no question involving the constitutionality or validity of a law or governmental
act may be heard and decided by the court unless there is compliance with the legal requisites for
judicial inquiry, namely: that the question must be raised by the proper party; that there must be an
actual case or controversy; that the question must be raised at the earliest possible opportunity; and,
that the decision on the constitutional or legal question must be necessary to the determination of
the case itself. 6 But the most important are the first two (2) requisites.

On the first requisite, we have held that one having no right or interest to protect cannot invoke the
jurisdiction of the court as party-plaintiff in an
action. 7 This is premised on Sec. 2, Rule 3, of the Rules of Court which provides that every action must
be prosecuted and defended in the name of the real party-in-interest, and that all persons having interest
in the subject of the action and in obtaining the relief demanded shall be joined as plaintiffs. The Court will
exercise its power of judicial review only if the case is brought before it by a party who has the legal
standing to raise the constitutional or legal question. "Legal standing" means 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. The term "interest" is material interest, an interest in issue and
to be affected by the decree, as distinguished from mere interest in the question involved, or a mere
incidental interest. 8 Moreover, the interest of the party plaintiff must be personal and not one based on a
desire to vindicate the constitutional right of some third and related party. 9

There are certain instances however when this Court has allowed exceptions to the rule on legal
standing, as when a citizen brings a case for mandamus to procure the enforcement of a public duty
for the fulfillment of a public right recognized by the Constitution, 10 and when a taxpayer questions the
11
validity of a governmental act authorizing the disbursement of public funds.

Petitioners claim that as Filipino citizens, taxpayers and artists deeply concerned with the
preservation and protection of the country's artistic wealth, they have the legal personality to restrain
respondents Executive Secretary and PCGG from acting contrary to their public duty to conserve the
artistic creations as mandated by the 1987 Constitution, particularly Art. XIV, Secs. 14 to 18, on Arts
and Culture, and R.A. 4846 known as "The Cultural Properties Preservation and Protection Act,"
governing the preservation and disposition of national and important cultural properties. Petitioners
also anchor their case on the premise that the paintings and silverware are public properties
collectively owned by them and by the people in general to view and enjoy as great works of art.
They allege that with the unauthorized act of PCGG in selling the art pieces, petitioners have been
deprived of their right to public property without due process of law in violation of the Constitution. 12

Petitioners' arguments are devoid of merit. They lack basis in fact and in law. They themselves
allege that the paintings were donated by private persons from different parts of the world to the
Metropolitan Museum of Manila Foundation, which is a non-profit and non-stock corporations
established to promote non-Philippine arts. The foundation's chairman was former First Lady Imelda
R. Marcos, while its president was Bienvenido R. Tantoco. On this basis, the ownership of these
paintings legally belongs to the foundation or corporation or the members thereof, although the
public has been given the opportunity to view and appreciate these paintings when they were placed
on exhibit.

Similarly, as alleged in the petition, the pieces of antique silverware were given to the Marcos couple
as gifts from friends and dignitaries from foreign countries on their silver wedding and anniversary,
an occasion personal to them. When the Marcos administration was toppled by the revolutionary
government, these paintings and silverware were taken from Malacaang and the Metropolitan
Museum of Manila and transferred to the Central Bank Museum. The confiscation of these
properties by the Aquino administration however should not be understood to mean that the
ownership of these paintings has automatically passed on the government without complying with
constitutional and statutory requirements of due process and just compensation. If these properties
were already acquired by the government, any constitutional or statutory defect in their acquisition
and their subsequent disposition must be raised only by the proper parties the true owners
thereof whose authority to recover emanates from their proprietary rights which are protected by
statutes and the Constitution. Having failed to show that they are the legal owners of the artworks or
that the valued pieces have become publicly owned, petitioners do not possess any clear legal right
whatsoever to question their alleged unauthorized disposition.

Further, although this action is also one of mandamus filed by concerned citizens, it does not fulfill
the criteria for a mandamus suit. In Legaspi v. Civil Service Commission, 13 this Court laid down the
rule that a writ of mandamus may be issued to a citizen only when the public right to be enforced and the
concomitant duty of the state are unequivocably set forth in the Constitution. In the case at bar,
petitioners are not after the fulfillment of a positive duty required of respondent officials under the 1987
Constitution. What they seek is the enjoining of an official act because it is constitutionally infirmed.
Moreover, petitioners' claim for the continued enjoyment and appreciation by the public of the artworks is
at most a privilege and is unenforceable as a constitutional right in this action for mandamus.

Neither can this petition be allowed as a taxpayer's suit. Not every action filed by a taxpayer can
qualify to challenge the legality of official acts done by the government. A taxpayer's suit can prosper
only if the governmental acts being questioned involve disbursement of public funds upon the theory
that the expenditure of public funds by an officer of the state for the purpose of administering an
unconstitutional act constitutes a misapplication of such funds, which may be enjoined at the request
of a taxpayer. 14 Obviously, petitioners are not challenging any expenditure involving public funds but the
disposition of what they allege to be public properties. It is worthy to note that petitioners admit that the
paintings and antique silverware were acquired from private sources and not with public money.

Anent the second requisite of actual controversy, petitioners argue that this case should be resolved
by this Court as an exception to the rule on moot and academic cases; that although the sale of the
paintings and silver has long been consummated and the possibility of retrieving the treasure trove is
nil, yet the novelty and importance of the issues raised by the petition deserve this Court's attention.
They submit that the resolution by the Court of the issues in this case will establish future guiding
principles and doctrines on the preservation of the nation's priceless artistic and cultural possessions
for the benefit of the public as a whole. 15

For a court to exercise its power of adjudication, there must be an actual case of controversy one
which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial
resolution; the case must not be moot or academic or based on extra-legal or other similar
considerations not cognizable by a court of justice. 16 A case becomes moot and academic when its
purpose has become stale, 17 such as the case before us. Since the purpose of this petition for prohibition
is to enjoin respondent public officials from holding the auction sale of the artworks on a particular date
11 January 1991 which is long past, the issues raised in the petition have become moot and academic.

At this point, however, we need to emphasize that 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. 18We find however that there is no such justification in the petition at bar to
warrant the relaxation of the rule.

Section 2 of R.A. 4846, as amended by P.D. 374, declares it to be the policy of the state to preserve
and protect the important cultural properties and national cultural treasures of the nation and to
safeguard their intrinsic value. As to what kind of artistic and cultural properties are considered by
the State as involving public interest which should therefore be protected, the answer can be
gleaned from reading of the reasons behind the enactment of R.A. 4846:

WHEREAS, the National Museum has the difficult task, under existing laws and
regulations, of preserving and protecting the cultural properties of the nation;

WHEREAS, inumerable sites all over the country have since been excavated
for cultural relics, which have passed on to private hands, representing priceless
cultural treasure that properly belongs to the Filipino people as their heritage;

WHEREAS, it is perhaps impossible now to find an area in the Philippines, whether

government or private property, which has not been disturbed by commercially-
minded diggers and collectors, literally destroying part of our historic past;

WHEREAS, because of this the Philippines has been charged as incapable of

preserving and protecting her cultural legacies;

WHEREAS, the commercialization of Philippine relics from the contact period, the
Neolithic Age, and the Paleolithic Age, has reached a point perilously placing beyond
reach of savants the study and reconstruction of Philippine prehistory; and

WHEREAS, it is believed that more stringent regulation on movement and a limited

form of registration of important cultural properties and of designated national cultural
treasures is necessary, and that regardless of the item, any cultural property
exported or sold locally must be registered with the National Museum to control the
deplorable situation regarding our national cultural properties and to implement the
Cultural Properties Law (emphasis supplied).

Clearly, the cultural properties of the nation which shall be under the protection of the state are
classified as the "important cultural properties" and the "national cultural treasures." "Important
cultural properties" are cultural properties which have been singled out from among the innumerable
cultural properties as having exceptional historical cultural significance to the Philippines but are not
sufficiently outstanding to merit the classification of national cultural treasures. 19 On the other hand, a
"national cultural treasures" is a unique object found locally, possessing outstanding historical, cultural,
artistic and/or scientific value which is highly significant and important to this country and nation. 20 This
Court takes note of the certification issued by the Director of the Museum that the Italian paintings and
silverware subject of this petition do not constitute protected cultural properties and are not among those
listed in the Cultural Properties Register of the National Museum.

We agree with the certification of the Director of the Museum. Under the law, it is the Director of the
Museum who is authorized to undertake the inventory, registration, designation or classification, with
 the aid of competent experts, of important cultural properties and national cultural
treasures. 21 Findings of administrative officials and agencies who have acquired expertise because their
jurisdiction is confined to specific matters are generally accorded not only respect but at times even
finality if such findings are supported by substantial evidence and are controlling on the reviewing
authorities because of their acknowledged expertise in the fields of specialization to which they are
assigned. 22

In view of the foregoing, this Court finds no compelling reason to grant the petition. Petitioners have
failed to show that respondents Executive Secretary and PCGG exercised their functions with grave
abuse of discretion or in excess of their jurisdiction.

WHEREFORE, for lack of merit, the petition for prohibition and mandamus is DISMISSED.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Regalado, Davide, Jr., Romero, Nocon,
Melo, Quiason, Puno and Vitug, JJ., concur.

Joya vs. PCGG

on 7:47 AM in Case Digests, Political Law
1
G.R. No. 96541, Aug. 24, 1993

o Requisites for exercise of judicial review: (1) that the question must be raised by the proper
party; (2) that there must be an actual case or controversy; (3) that the question must be raised at
the earliest possible opportunity; and, (4) that the decision on the constitutional or legal question
must be necessary to the determination of the case itself.
o LEGAL STANDING: 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.
o EXCEPTIONS TO LEGAL STANDING: Mandamus and Taxpayer's Suits
o REQUISITES FOR MANDAMUS: a writ of mandamus may be issued to a citizen only when
the public right to be enforced and the concomitant duty of the state are unequivocably set forth
in the Constitution.
o WHEN TAXPAYER SUIT MAY PROSPER: A taxpayer's suit can prosper only if the
governmental acts being questioned involve disbursement of public funds upon the theory that
the expenditure of public funds by an officer of the state for the purpose of administering an
unconstitutional act constitutes a misapplication of such funds, which may be enjoined at the
request of a taxpayer.
o ACTUAL CONTROVERSY: one which involves a conflict of legal rights, an assertion of
opposite legal claims susceptible of judicial resolution; the case must not be moot or academic or
based on extra-legal or other similar considerations not cognizable by a court of justice.
 FACTS:

The Republic of the Philippines through the PCGG entered into a Consignment
Agreement with Christies of New York, selling 82 Old Masters Paintings and antique
silverware seized from Malacanang and the Metropolitan Museum of Manila alleged to
be part of the ill-gotten wealth of the late Pres. Marcos, his relatives and cronies. Prior
to the auction sale, COA questioned the Consignment Agreement, there was already
opposition to the auction sale. Nevertheless, it proceeded as scheduled and the
proceeds of $13,302,604.86 were turned over to the Bureau of Treasury.

ISSUE:

o Whether or not PCGG has jurisdiction and authority to enter into an agreement with
Christies of New York for the sale of the artworks

RULING:

On jurisdiction of the Court to exercise judicial review

The rule is settled that no question involving the constitutionality or validity of a law or
governmental act may be heard and decided by the court unless there is compliance
with the legal requisites for judicial inquiry, namely: that the question must be raised by
the proper party; that there must be an actual case or controversy; that the question
must be raised at the earliest possible opportunity; and, that the decision on the
constitutional or legal question must be necessary to the determination of the case
itself. But the most important are the first two (2) requisites.

Standing of Petitioners

On the first requisite, we have held that one having no right or interest to protect cannot
invoke the jurisdiction of the court as party-plaintiff in an action. This is premised on
Sec. 2, Rule 3, of the Rules of Court which provides that every action must be
prosecuted and defended in the name of the real party-in-interest, and that all persons
having interest in the subject of the action and in obtaining the relief demanded shall be
joined as plaintiffs. The Court will exercise its power of judicial review only if the case is
brought before it by a party who has the legal standing to raise the constitutional or legal
question. "Legal standing" means 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. The term "interest" is material interest, an interest in issue
and to be affected by the decree, as distinguished from mere interest in the question
involved, or a mere incidental interest. Moreover, the interest of the party plaintiff must
be personal and not one based on a desire to vindicate the constitutional right of some
third and related party.
EXCEPTIONS TO LEGAL STANDING: Mandamus and Taxpayers Suit:

There are certain instances however when this Court has allowed exceptions to the rule
on legal standing, as when a citizen brings a case for mandamus to procure the
enforcement of a public duty for the fulfillment of a public right recognized by the
Constitution, and when a taxpayer questions the validity of a governmental act
authorizing the disbursement of public funds.

Petitioners claim that as Filipino citizens, taxpayers and artists deeply concerned with
the preservation and protection of the country's artistic wealth, they have the legal
personality to restrain respondents Executive Secretary and PCGG from acting contrary
to their public duty to conserve the artistic creations as mandated by the 1987
Constitution, particularly Art. XIV, Secs. 14 to 18, on Arts and Culture, and R.A. 4846
known as "The Cultural Properties Preservation and Protection Act," governing the
preservation and disposition of national and important cultural properties. Petitioners
also anchor their case on the premise that the paintings and silverware are public
properties collectively owned by them and by the people in general to view and enjoy as
great works of art. They allege that with the unauthorized act of PCGG in selling the art
pieces, petitioners have been deprived of their right to public property without due
process of law in violation of the Constitution.

Petitioners' arguments are devoid of merit. They lack basis in fact and in law. They
themselves allege that the paintings were donated by private persons from different
parts of the world to the Metropolitan Museum of Manila Foundation, which is a non-
profit and non-stock corporations established to promote non-Philippine arts. The
foundation's chairman was former First Lady Imelda R. Marcos, while its president was
Bienvenido R. Tantoco. On this basis, the ownership of these paintings legally belongs
to the foundation or corporation or the members thereof, although the public has been
given the opportunity to view and appreciate these paintings when they were placed on
exhibit.

Similarly, as alleged in the petition, the pieces of antique silverware were given to the
Marcos couple as gifts from friends and dignitaries from foreign countries on their silver
wedding and anniversary, an occasion personal to them. When the Marcos
administration was toppled by the revolutionary government, these paintings and
silverware were taken from Malacaang and the Metropolitan Museum of Manila and
transferred to the Central Bank Museum. The confiscation of these properties by the
Aquino administration however should not be understood to mean that the ownership of
these paintings has automatically passed on the government without complying with
constitutional and statutory requirements of due process and just compensation. If these
properties were already acquired by the government, any constitutional or statutory
defect in their acquisition and their subsequent disposition must be raised only by the
proper parties the true owners thereof whose authority to recover emanates from
their proprietary rights which are protected by statutes and the Constitution. Having
failed to show that they are the legal owners of the artworks or that the valued pieces
have become publicly owned, petitioners do not possess any clear legal right
whatsoever to question their alleged unauthorized disposition.

Requisites for a Mandamus Suit

Further, although this action is also one of mandamus filed by concerned citizens, it
does not fulfill the criteria for a mandamus suit. In Legaspi v. Civil Service Commission,
this Court laid down the rule that a writ of mandamus may be issued to a citizen only
when the public right to be enforced and the concomitant duty of the state are
unequivocably set forth in the Constitution. In the case at bar, petitioners are not after
the fulfillment of a positive duty required of respondent officials under the 1987
Constitution. What they seek is the enjoining of an official act because it is
constitutionally infirmed. Moreover, petitioners' claim for the continued enjoyment and
appreciation by the public of the artworks is at most a privilege and is unenforceable as
a constitutional right in this action for mandamus.

When a Taxpayer's Suit may prosper

Neither can this petition be allowed as a taxpayer's suit. Not every action filed by a
taxpayer can qualify to challenge the legality of official acts done by the government. A
taxpayer's suit can prosper only if the governmental acts being questioned involve
disbursement of public funds upon the theory that the expenditure of public funds by an
officer of the state for the purpose of administering an unconstitutional act constitutes a
misapplication of such funds, which may be enjoined at the request of a taxpayer.
Obviously, petitioners are not challenging any expenditure involving public funds but the
disposition of what they allege to be public properties. It is worthy to note that petitioners
admit that the paintings and antique silverware were acquired from private sources and
not with public money.

Actual Controversy

For a court to exercise its power of adjudication, there must be an actual case of
controversy one which involves a conflict of legal rights, an assertion of opposite
legal claims susceptible of judicial resolution; the case must not be moot or academic or
based on extra-legal or other similar considerations not cognizable by a court of justice.
A case becomes moot and academic when its purpose has become stale, such as the
case before us. Since the purpose of this petition for prohibition is to enjoin respondent
public officials from holding the auction sale of the artworks on a particular date 11
January 1991 which is long past, the issues raised in the petition have become moot
and academic.

At this point, however, we need to emphasize that 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. We find however that there is no
such justification in the petition at bar to warrant the relaxation of the rule.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 202242 April 16, 2013

FRANCISCO I. CHAVEZ, Petitioner,

vs.
JUDICIALAND BAR COUNCIL, SEN. FRANCIS JOSEPH G. ESCUDERO and REP. NIEL C.
TUPAS, JR.,Respondents.

RESOLUTION

MENDOZA, J.:

This resolves the Motion for Reconsideration1 filed by the Office of the Solicitor General (OSG) on
behalf of the respondents, Senator Francis Joseph G. Escudero and Congressman Niel C. Tupas,
Jr. (respondents), duly opposed2 by the petitioner, former Solicitor General Francisco I. Chavez
(petitioner).

By way of recapitulation, the present action stemmed from the unexpected departure of former Chief
Justice Renato C. Corona on May 29, 2012, and the nomination of petitioner, as his potential
successor. In his initiatory pleading, petitioner asked the Court to determine 1] whether the first
paragraph of Section 8, Article VIII of the 1987 Constitution allows more than one (1) member of
Congress to sit in the JBC; and 2] if the practice of having two (2) representatives from each House
of Congress with one (1) vote each is sanctioned by the Constitution.

On July 17, 2012, the Court handed down the assailed subject decision, disposing the same in the
following manner:

WHEREFORE, the petition is GRANTED. The current numerical composition of the Judicial and Bar
Council is declared UNCONSTITUTIONAL. The Judicial and Bar Council is hereby enjoined to
reconstitute itself so that only one (1) member of Congress will sit as a representative in its
proceedings, in accordance with Section 8(1), Article VIII of the 1987 Constitution.

This disposition is immediately executory.

SO ORDERED.

On July 31, 2012, following respondents motion for reconsideration and with due regard to Senate
Resolution Nos. 111,3 112,4 113,5 and 114,6 the Court set the subject motion for oral arguments on
August 2, 2012.7 On August 3, 2012, the Court discussed the merits of the arguments and agreed, in
the meantime, to suspend the effects of the second paragraph of the dispositive portion of the July
17, 2012 Decision which decreed that it was immediately executory. The decretal portion of the
August 3, 2012 Resolution8 reads:
WHEREFORE, the parties are hereby directed to submit their respective MEMORANDA within ten
(10) days from notice. Until further orders, the Court hereby SUSPENDS the effect of the second
paragraph of the dispositive portion of the Courts July 17, 2012 Decision, which reads: "This
disposition is immediately executory."9

Pursuant to the same resolution, petitioner and respondents filed their respective memoranda.10

Brief Statement of the Antecedents

In this disposition, it bears reiterating that from the birth of the Philippine Republic, the exercise of
appointing members of the Judiciary has always been the exclusive prerogative of the executive and
legislative branches of the government. Like their progenitor of American origins, both the Malolos
Constitution11 and the 1935 Constitution12vested the power to appoint the members of the Judiciary
in the President, subject to confirmation by the Commission on Appointments. It was during these
times that the country became witness to the deplorable practice of aspirants seeking confirmation of
their appointment in the Judiciary to ingratiate themselves with the members of the legislative body.13

Then, under the 1973 Constitution,14 with the fusion of the executive and legislative powers in one
body, the appointment of judges and justices ceased to be subject of scrutiny by another body. The
power became exclusive and absolute to the Executive, subject only to the condition that the
appointees must have all the qualifications and none of the disqualifications.

Prompted by the clamor to rid the process of appointments to the Judiciary of the evils of political
pressure and partisan activities,15 the members of the Constitutional Commission saw it wise to
create a separate, competent and independent body to recommend nominees to the President.

Thus, it conceived of a body, representative of all the stakeholders in the judicial appointment
process, and called it the Judicial and Bar Council (JBC). The Framers carefully worded Section 8,
Article VIII of the 1987 Constitution in this wise:

Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme
Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a representative of the private sector.

From the moment of the creation of the JBC, Congress designated one (1) representative to sit in
the JBC to act as one of the ex-officio members.16 Pursuant to the constitutional provision that
Congress is entitled to one (1) representative, each House sent a representative to the JBC, not
together, but alternately or by rotation.

In 1994, the seven-member composition of the JBC was substantially altered. An eighth member
1wphi1

was added to the JBC as the two (2) representatives from Congress began sitting simultaneously in
the JBC, with each having one-half (1/2) of a vote.17

In 2001, the JBC En Banc decided to allow the representatives from the Senate and the House of
Representatives one full vote each.18 It has been the situation since then.

Grounds relied upon by Respondents

Through the subject motion, respondents pray that the Court reconsider its decision and dismiss the
petition on the following grounds: 1] that allowing only one representative from Congress in the JBC
would lead to absurdity considering its bicameral nature; 2] that the failure of the Framers to make
the proper adjustment when there was a shift from unilateralism to bicameralism was a plain
oversight; 3] that two representatives from Congress would not subvert the intention of the Framers
to insulate the JBC from political partisanship; and 4] that the rationale of the Court in declaring a
seven-member composition would provide a solution should there be a stalemate is not exactly
correct.

While the Court may find some sense in the reasoning in amplification of the third and fourth
grounds listed by respondents, still, it finds itself unable to reverse the assailed decision on the
principal issues covered by the first and second grounds for lack of merit. Significantly, the
conclusion arrived at, with respect to the first and second grounds, carries greater bearing in the final
resolution of this case.

As these two issues are interrelated, the Court shall discuss them jointly.

Ruling of the Court

The Constitution evinces the direct action of the Filipino people by which the fundamental powers of
government are established, limited and defined and by which those powers are distributed among
the several departments for their safe and useful exercise for the benefit of the body politic.19 The
Framers reposed their wisdom and vision on one suprema lex to be the ultimate expression of the
principles and the framework upon which government and society were to operate. Thus, in the
interpretation of the constitutional provisions, the Court firmly relies on the basic postulate that the
Framers mean what they say. The language used in the Constitution must be taken to have been
deliberately chosen for a definite purpose. Every word employed in the Constitution must be
interpreted to exude its deliberate intent which must be maintained inviolate against disobedience
and defiance. What the Constitution clearly says, according to its text, compels acceptance and bars
modification even by the branch tasked to interpret it.

For this reason, the Court cannot accede to the argument of plain oversight in order to justify
constitutional construction. As stated in the July 17, 2012 Decision, in opting to use the singular
letter "a" to describe "representative of Congress," the Filipino people through the Framers intended
that Congress be entitled to only one (1) seat in the JBC. Had the intention been otherwise, the
Constitution could have, in no uncertain terms, so provided, as can be read in its other provisions.

A reading of the 1987 Constitution would reveal that several provisions were indeed adjusted as to
be in tune with the shift to bicameralism. One example is Section 4, Article VII, which provides that a
tie in the presidential election shall be broken "by a majority of all the Members of both Houses of the
Congress, voting separately."20 Another is Section 8 thereof which requires the nominee to replace
the Vice-President to be confirmed "by a majority of all the Members of both Houses of the
Congress, voting separately."21 Similarly, under Section 18, the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus may be revoked or continued by the
Congress, voting separately, by a vote of at least a majority of all its Members."22 In all these
provisions, the bicameral nature of Congress was recognized and, clearly, the corresponding
adjustments were made as to how a matter would be handled and voted upon by its two Houses.

Thus, to say that the Framers simply failed to adjust Section 8, Article VIII, by sheer inadvertence, to
their decision to shift to a bicameral form of the legislature, is not persuasive enough. Respondents
cannot just lean on plain oversight to justify a conclusion favorable to them. It is very clear that the
Framers were not keen on adjusting the provision on congressional representation in the JBC
because it was not in the exercise of its primary function to legislate. JBC was created to support
the executive power to appoint, and Congress, as one whole body, was merely assigned a
contributory non-legislative function.

The underlying reason for such a limited participation can easily be discerned. Congress has two (2)
Houses. The need to recognize the existence and the role of each House is essential considering
that the Constitution employs precise language in laying down the functions which particular House
plays, regardless of whether the two Houses consummate an official act by voting jointly or
separately. Whether in the exercise of its legislative23 or its non-legislative functions such as inter
alia, the power of appropriation,24 the declaration of an existence of a state of war,25 canvassing of
electoral returns for the President and Vice-President,26 and impeachment,27 the dichotomy of each
House must be acknowledged and recognized considering the interplay between these two Houses.
In all these instances, each House is constitutionally granted with powers and functions peculiar to
its nature and with keen consideration to 1) its relationship with the other chamber; and 2) in
consonance with the principle of checks and balances, as to the other branches of government.

In checkered contrast, there is essentially no interaction between the two Houses in their
participation in the JBC. No mechanism is required between the Senate and the House of
Representatives in the screening and nomination of judicial officers. Rather, in the creation of the
JBC, the Framers arrived at a unique system by adding to the four (4) regular members, three (3)
representatives from the major branches of government - the Chief Justice as ex-officio Chairman
(representing the Judicial Department), the Secretary of Justice (representing the Executive
Department), and a representative of the Congress (representing the Legislative Department). The
total is seven (7), not eight. In so providing, the Framers simply gave recognition to the Legislature,
not because it was in the interest of a certain constituency, but in reverence to it as a major branch
of government.

On this score, a Member of Congress, Hon. Simeon A. Datumanong, from the Second District of
Maguindanao, submitted his well-considered position28 to then Chief Justice Reynato S. Puno:

I humbly reiterate my position that there should be only one representative of Congress in the JBC in
accordance with Article VIII, Section 8 (1) of the 1987 Constitution x x x.

The aforesaid provision is clear and unambiguous and does not need any further interpretation.
Perhaps, it is apt to mention that the oft-repeated doctrine that "construction and interpretation come
only after it has been demonstrated that application is impossible or inadequate without them."

Further, to allow Congress to have two representatives in the Council, with one vote each, is to
negate the principle of equality among the three branches of government which is enshrined in the
Constitution.

In view of the foregoing, I vote for the proposition that the Council should adopt the rule of single
representation of Congress in the JBC in order to respect and give the right meaning to the above-
quoted provision of the Constitution. (Emphases and underscoring supplied)

On March 14, 2007, then Associate Justice Leonardo A. Quisumbing, also a JBC Consultant,
submitted to the Chief Justice and ex-officio JBC Chairman his opinion,29 which reads:

8. Two things can be gleaned from the excerpts and citations above: the creation of the JBC is
intended to curtail the influence of politics in Congress in the appointment of judges, and the
understanding is that seven (7) persons will compose the JBC. As such, the interpretation of two
votes for Congress runs counter to the intendment of the framers. Such interpretation actually gives
Congress more influence in the appointment of judges. Also, two votes for Congress would increase
the number of JBC members to eight, which could lead to voting deadlock by reason of even-
numbered membership, and a clear violation of 7 enumerated members in the Constitution.
(Emphases and underscoring supplied)

In an undated position paper,30 then Secretary of Justice Agnes VST Devanadera opined:

As can be gleaned from the above constitutional provision, the JBC is composed of seven (7)
representatives coming from different sectors. From the enumeration it is patent that each category
of members pertained to a single individual only. Thus, while we do not lose sight of the bicameral
nature of our legislative department, it is beyond dispute that Art. VIII, Section 8 (1) of the 1987
Constitution is explicit and specific that "Congress" shall have only "xxx a representative." Thus, two
(2) representatives from Congress would increase the number of JBC members to eight (8), a
number beyond what the Constitution has contemplated. (Emphases and underscoring supplied)

In this regard, the scholarly dissection on the matter by retired Justice Consuelo Ynares-Santiago, a
former JBC consultant, is worth reiterating.31 Thus:

A perusal of the records of the Constitutional Commission reveals that the composition of the JBC
reflects the Commissions desire "to have in the Council a representation for the major elements of
the community." xxx The ex-officio members of the Council consist of representatives from the three
main branches of government while the regular members are composed of various stakeholders in
the judiciary. The unmistakeable tenor of Article VIII, Section 8(1) was to treat each ex-officio
member as representing one co-equal branch of government. xxx Thus, the JBC was designed to
have seven voting members with the three ex-officio members having equal say in the choice of
judicial nominees.

xxx

No parallelism can be drawn between the representative of Congress in the JBC and the exercise by
Congress of its legislative powers under Article VI and constituent powers under Article XVII of the
Constitution. Congress, in relation to the executive and judicial branches of government, is
constitutionally treated as another co-equal branch in the matter of its representative in the JBC. On
the other hand, the exercise of legislative and constituent powers requires the Senate and the House
of Representatives to coordinate and act as distinct bodies in furtherance of Congress role under
our constitutional scheme. While the latter justifies and, in fact, necessitates the separateness of the
two Houses of Congress as they relate inter se, no such dichotomy need be made when Congress
interacts with the other two co-equal branches of government.

It is more in keeping with the co-equal nature of the three governmental branches to assign the
same weight to considerations that any of its representatives may have regarding aspiring nominees
to the judiciary. The representatives of the Senate and the House of Representatives act as such for
one branch and should not have any more quantitative influence as the other branches in the
exercise of prerogatives evenly bestowed upon the three. Sound reason and principle of equality
among the three branches support this conclusion. [Emphases and underscoring supplied]

The argument that a senator cannot represent a member of the House of Representatives in the
JBC and vice-versa is, thus, misplaced. In the JBC, any member of Congress, whether from the
Senate or the House of Representatives, is constitutionally empowered to represent the entire
Congress. It may be a constricted constitutional authority, but it is not an absurdity.

From this score stems the conclusion that the lone representative of Congress is entitled to one full
vote. This pronouncement effectively disallows the scheme of splitting the said vote into half (1/2),
between two representatives of Congress. Not only can this unsanctioned practice cause disorder in
the voting process, it is clearly against the essence of what the Constitution authorized. After all,
basic and reasonable is the rule that what cannot be legally done directly cannot be done indirectly.
To permit or tolerate the splitting of one vote into two or more is clearly a constitutional
circumvention that cannot be countenanced by the Court. Succinctly put, when the Constitution
envisioned one member of Congress sitting in the JBC, it is sensible to presume that this
representation carries with him one full vote.

It is also an error for respondents to argue that the President, in effect, has more influence over the
JBC simply because all of the regular members of the JBC are his appointees. The principle of
checks and balances is still safeguarded because the appointment of all the regular members of the
JBC is subject to a stringent process of confirmation by the Commission on Appointments, which is
composed of members of Congress.

Respondents contention that the current irregular composition of the JBC should be accepted,
simply because it was only questioned for the first time through the present action, deserves scant
consideration. Well-settled is the rule that acts done in violation of the Constitution no matter how
frequent, usual or notorious cannot develop or gain acceptance under the doctrine of estoppel or
laches, because once an act is considered as an infringement of the Constitution it is void from the
very beginning and cannot be the source of any power or authority.

It would not be amiss to point out, however, that as a general rule, an unconstitutional act is not a
law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is
inoperative as if it has not been passed at all. This rule, however, is not absolute. Under the doctrine
of operative facts, actions previous to the declaration of unconstitutionality are legally recognized.
They are not nullified. This is essential in the interest of fair play. To reiterate the doctrine enunciated
in Planters Products, Inc. v. Fertiphil Corporation:32

The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity
and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a
statute prior to a determination of unconstitutionality is an operative fact and may have
consequences which cannot always be ignored. The past cannot always be erased by a new judicial
declaration. The doctrine is applicable when a declaration of unconstitutionality will impose an undue
burden on those who have relied on the invalid law. Thus, it was applied to a criminal case when a
declaration of unconstitutionality would put the accused in double jeopardy or would put in limbo the
acts done by a municipality in reliance upon a law creating it.33

Under the circumstances, the Court finds the exception applicable in this case and holds that
notwithstanding its finding of unconstitutionality in the current composition of the JBC, all its prior
official actions are nonetheless valid.

Considering that the Court is duty bound to protect the Constitution which was ratified by the direct
action of the Filipino people, it cannot correct what respondents perceive as a mistake in its
mandate. Neither can the Court, in the exercise of its power to interpret the spirit of the Constitution,
read into the law something that is contrary to its express provisions and justify the same as
correcting a perceived inadvertence. To do so would otherwise sanction the Court action of making
amendment to the Constitution through a judicial pronouncement.

In other words, the Court cannot supply the legislative omission. According to the rule of casus
omissus "a case omitted is to be held as intentionally omitted."34 "The principle proceeds from a
reasonable certainty that a particular person, object or thing has been omitted from a legislative
enumeration."35 Pursuant to this, "the Court cannot under its power of interpretation supply the
omission even though the omission may have resulted from inadvertence or because the case in
question was not foreseen or contemplated."36 "The Court cannot supply what it thinks the legislature
would have supplied had its attention been called to the omission, as that would be judicial
legislation."37

Stated differently, the Court has no power to add another member by judicial construction.

The call for judicial activism fails to stir the sensibilities of the Court tasked to guard the Constitution
against usurpation. The Court remains steadfast in confining its powers in the sphere granted by the
Constitution itself. Judicial activism should never be allowed to become judicial exuberance.38 In
cases like this, no amount of practical logic or convenience can convince the Court to perform either
an excision or an insertion that will change the manifest intent of the Framers. To broaden the scope
of congressional representation in the JBC is tantamount to the inclusion of a subject matter which
was not included in the provision as enacted. True to its constitutional mandate, the Court cannot
craft and tailor constitutional provisions in order to accommodate all of situations no matter how ideal
or reasonable the proposed solution may sound. To the exercise of this intrusion, the Court declines.

WHEREFORE, the Motion for Reconsideration filed by respondents is hereby DENIED.

The suspension of the effects of the second paragraph of the dispositive portion of the July 17, 2012
Decision of the Court, which reads, "This disposition is immediately executory," is hereby LIFTED.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION

Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO ROBERTO A. ABAD

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

Associate Justice Associate Justice
 BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE
Associate Justice Associate Justice

MARVIC MARIO VICTOR F. LEONEN

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, T hereby certify that the conclusions in the
above Resolution had been reached in consultation before the case was assigned to the writer of the
opinion of the Court.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

1 Rollo, pp. 257-286.

2 Id. at 287-298.

3 Entitled "Resolution expressing the sense of the Senate that the Judicial and Bar Council
(JBC) defer the consideration of all nominees and the preparation of the short list to be
submitted to the President for the position of Chief Justice of the Supreme Court;" id. at 303-
304.

4 Entitled "Resolution expressing anew the sense of the Senate that the Senate and House
of Representatives should have one (1) representative each in the Judicial and Bar Council
(JBC) and that each representative is entitled to a full vote;" id. at 305-307.

5 Entitled "Resolution to file an urgent motion with the Supreme Court to set for oral argument
the motion for reconsideration filed by the representatives of Congress to the Judicial and
Bar Council (JBC) in the case of Francisco Chavez v. Judicial and Bar Council, Sen. Francis
Joseph G.. Escudero and Rep. Niel Tupas Jr., G.R. No. 2022242 considering the primordial
importance of the constitutional issues involved;" id. at 308-310.

6 Entitled "Resolution authorizing Senator Joker P. Arroyo to argue, together with the
Counsel-of-record, the motion for reconsideration filed by the representative of the Senate to
the Judicial and Bar Council in the case of Francisco Chavez v. Judicial and Bar Council,
Sen. Francis Joseph G. Escudero and Rep. Niel Tupas, Jr.;" id. at 311-312.

7 Id. at 313-314.

8 Id. at (318-I)-(318-K).

9 Id. at 318-J.
10 Petitioners Memorandum, id. at 326-380; Respondents Memorandum, id. at 381-424.

11Malolos Constitution Article 80 Title X. The Chief Justice of the Supreme Court and the
Solicitor-General shall be chosen by the National Assembly in concurrence with the
President of the Republic and the Secretaries of the Government, and shall be absolutely
independent of the Legislative and Executive Powers."

121935 Constitution Article VIII, Section 5. The Members of the Supreme Court and all
judges of inferior courts shall be appointed by the President with the consent of the
Commission on Appointments."

13 1 Records of the Constitutional Commission Proceedings and Debates, 437.

14
Section 4 Article X of the 1973 Constitution provides: "The Members of the Supreme Court
and judges of inferior courts shall be appointed by the President."

15 1 Records, Constitutional Commission, Proceedings and Debates, p. 487.

16List of JBC Chairpersons, Ex-Officio and Regular Members, Ex Officio Secretaries and
Consultants, issued by the Office of the Executive Officer, Judicial and Bar Council, rollo, pp.
62-63.

17 Id.

Id. at 80, citing Minutes of the 1st En Banc Executive Meeting, January 12, 2000 and
18

Minutes of the 12th En Banc Meeting, May 30, 2001.

19 Malcolm, The Constitutional Law of the Philippine Islands (2nd ed. 1926), p. 26.

201987 Constitution, Article VII, Section 4. The President and the Vice-President shall be
elected by direct vote of the people for a term of six years which shall begin at noon on the
thirtieth day of June next following the day of the election and shall end at noon of the same
date, six years thereafter. The President shall not be eligible for any re-election. No person
who has succeeded as President and has served as such for more than four years shall be
qualified for election to the same office at any time.

xxx

The person having the highest number of votes shall be proclaimed elected, but in
case two or more shall have an equal and highest number of votes, one of them shall
forthwith be chosen by the vote of a majority of all the Members of both Houses of
the Congress, voting separately. (Emphasis supplied)

x x x.

211987 Constitution, Article VII, Section 9. Whenever there is a vacancy in the Office of the
Vice-President during the term for which he was elected, the President 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 the Members of both
Houses of the Congress, voting separately. (Emphasis supplied)
221987 Constitution, Article VII, Section 18. The President shall be the Commander-in-
Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call
out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case
of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding
sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any
part thereof under martial law. Within forty-eight hours from the proclamation of martial law or
the suspension of the privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at
least a majority of all its Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set aside by the President. Upon
the initiative of the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it. (Emphasis supplied)

23 1987 Constitution, Article VI Section 27(1). Every bill passed by the Congress shall,
before it becomes a law, be presented to the President. If he approves the same, he shall
sign it; otherwise, he shall veto it and return the same with his objections to the House where
it originated, which shall enter the objections at large in its Journal and proceed to reconsider
it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to
pass the bill, it shall be sent, together with the objections, to the other House by which it shall
likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it
shall become a law. In all such cases, the votes of each House shall be determined by yeas
or nays, and the names of the Members voting for or against shall be entered in its Journal.
The President shall communicate his veto of any bill to the House where it originated within
thirty days after the date of receipt thereof; otherwise, it shall become a law as if he had
signed it.

241987 Constitution, Article VI Section 24. All appropriation, revenue or tariff bills, bills
authorizing increase of public debt, bills of local application, and private bills shall originate
exclusively in the House of Representatives, but the Senate may propose or concur with
amendments.

251987 Constitution, Article VI Section 23 (1). The Congress, by a vote of two-thirds of both
Houses in joint session assembled, voting separately, shall have the sole power to declare
the existence of a state of war.

26 1987 Constitution, Article VII Section 4. The returns of every election for President and
Vice-President, duly certified by the board of canvassers of each province or city, shall be
transmitted to the Congress, directed to the President of the Senate. Upon receipt of the
certificates of canvass, the President of the Senate shall, not later than thirty days after the
day of the election, open all certificates in the presence of the Senate and the House of
Representatives in joint public session, and the Congress, upon determination of the
authenticity and due execution thereof in the manner provided by law, canvass the votes.

The person having the highest number of votes shall be proclaimed elected, but in
case two or more shall have an equal and highest number of votes, one of them shall
forthwith be chosen by the vote of a majority of all the Members of both Houses of
the Congress, voting separately.

271987 Constitution, Article XI Section 3 (1). The House of Representatives shall have the
exclusive power to initiate all cases of impeachment.
 xxx

(6) The Senate shall have the sole power to try and decide all cases of
impeachment. When sitting for that purpose, the Senators shall be on oath or
affirmation. When the President of the Philippines is on trial, the Chief Justice of the
Supreme Court shall preside, but shall not vote. No person shall be convicted without
the concurrence of two-thirds of all the Members of the Senate.

28 Dated March 27, 2007; Annex "D," rollo, p. 104.

29Annex C, id. at 95. Quoting the interpretation of Article VIII, Section (1) of the Constitution
by Fr. Joaquin Bernas in page 984 of his book, The 1987 Constitution of the Republic of the
Philippines, A Commentary. He quoted another author, Hector de Leon, and portions of the
decisions of this Court in Flores v. Drilon, and Escalante v. Santos, before extensively
quoting the Record of the Constitutional Commission of 1986 (pages 444 to 491).

30
Annex "E," id. at 1205.

31 Rollo, pp. 91-93.

32 G.R. No. 166006, March 14, 2008, 548 SCRA 485.

33 Id. at 516-517. (Citations omitted.)

34 Blacks Law Dictionary, Fifth ed., p. 198.

35 Agpalo, Statutory Construction, 2009 ed., p. 231.

36 Id., citing Cartwrite v. Cartwrite, 40 A2d 30, 155 ALR 1088 (1944).

37 Id., Agpalo, p. 232

38Dissenting Opinion, Chief Justice Panganiban, Central Bank (Now Bangko Sentral Ng
Pilipinas) Employees Association, Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 148208,
December 15, 2004, 446 SCRA 299, citing Peralta v. COMELEC. No. L-47771, March 11,
1978, 82 SCRA 30, 77, citing concurring and dissenting opinion of former Chief Justice
Fernando, citing Malcolm.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

ABAD, J.:

On July 17, 2012, the Court rendered a Decision1 granting the petition for declaration of
unconstitutionality, prohibition, and injunction filed by petitioner Francisco I. Chavez, and declaring
that the current numerical composition of the Judicial and Bar Council (JBC) is unconstitutional. The
Court also enjoined the JBC to reconstitute itself so that only one member of Congress will sit as a
representative in its proceedings, in accordance with Section 8(1), Article VIII of the 1987
Constitution.

On July 24, 2012, respondents Senator Francis Joseph G. Escudero and Congressman Niel C.
Tupas, Jr. moved for reconsideration.2 The Court then conducted and heard the parties in oral
arguments on the following Issues:

1. Whether or not the current practice of the JBC to perform its functions with eight members, two of
whom are members of Congress, runs counter to the letter and spirit of Section 8(1), Article VIII of
the 1987 Constitution.

A. Whether or not the JBC should be composed of seven members only.

B. Whether or not Congress is entitled to more than one seat in the JBC.

C. Assuming Congress is entitled to more than one seat, whether or not each representative of
Congress should be entitled to exercise one whole vote.

I maintain my dissent to the majority opinion now being reconsidered.

To reiterate, the vital question that needs to be resolved is: whether or not the Senate and the House
of Representatives are entitled to one representative each in the JBC, both with the right to cast one
full vote in its deliberations.

At the core of the present controversy is Section 8(1), Article VIII of the 1987 Constitution, which
provides that:

Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme
Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a representative of the private sector.
(Emphasis supplied)

In interpreting Section 8(1) above, the majority opinion reiterated that in opting to use the singular
letter "a" to describe "representative of the Congress," the Filipino people through the framers of the
1987 Constitution intended Congress to just have one representative in the JBC. The majority
opinion added that there could not have been any plain oversight in the wordings of the provision
since the other provisions of the 1987 Constitution were amended accordingly with the shift to a
bicameral legislative body.

The mere fact, however, that adjustments were made in some provisions should not mislead the
Court into concluding that all provisions have been amended to recognize the bicameral nature of
Congress. As I have previously noted in my dissenting opinion, Fr. Joaquin G. Bernas, a member of
the Constitutional Commission himself, admitted that the committee charged with making
adjustments in the previously passed provisions covering the JBC, failed to consider the impact of
the changed character of the Legislature on the inclusion of "a representative of the Congress" in the
membership of the JBC.3
Indeed, to insist that only one member of Congress from either the Senate or the House of
Representatives should sit at any time in the JBC, is to ignore the fact that they are still separate and
distinct from each other although they are both involved in law-making. Both legislators are elected
differently, maintain separate administrative organizations, and deliberate on laws independently. In
fact, neither the Senate nor the House of Representatives can by itself claim to represent the
Congress.

Again, that the framers of the 1987 Constitution did not intend to limit the term "Congress" to just
either of the two Houses can be seen from the words that they used in crafting Section 8(1 ). While
the provision provides for just "a representative of the Congress," it also provides that such
representation is "ex officio" or "by virtue of one's office, or position."4

Under the Senate rules, the Chairperson of its Justice Committee is automatically the Senate
representative to the JBC. In the same way, under the House of Representatives rules, the
Chairperson of its Justice Committee is the House representative to the JBC. Consequently, there
are actually two persons in Congress who hold separate offices or positions with the attached
function of sitting in the JBC. If the Court adheres to a literal translation of Section 8(1 ), no
representative from Congress will qualify as "ex officio" member of the JBC. This would deny
Congress the representation that the framers of the 1987 Constitution intended it to have.

Having said that the Senate and the House of Representatives should have one representative each
in the JBC, it is logical to conclude that each should also have the right to cast one full vote in its
deliberations. To split the vote between the two legislators would be an absurdity since it would
diminish their standing and make them second class members of the JBC, something that the
Constitution clearly does not contemplate. Indeed, the JBC abandoned the half-a-vote practice on
January 12, 2000 and recognized the right of both legislators to cast one full vote each. Only by
recognizing this right can the true spirit and reason of Section 8(1) be attained.

For the above reasons, I vote to GRANT the motion for reconsideration.

ROBERTO A. ABAD
Associate Justice

Footnotes

1 Rollo, pp. 226-250.

2
Id. at 257-284.

3 http://opinion.inquirer.net/31813/jbc-odds-and-ends (last accessed February 15, 2013).

4 Webster's New World College Dictionary, 3rd Edition, p. 477.

The Lawphil Project - Arellano Law Foundation

 DISSENTING OPINION

LEONEN, J.:

I dissent.

Both the Senate and the House of Representatives must be represented in the Judicial and Bar
Council. This is the Constitution's mandate read as a whole and in the light of the ordinary and
contemporary understanding of our people of the structure of our government. Any other
interpretation diminishes Congress and negates the effectivity of its representation in the Judicial
and Bar Council.

It is a Constitution we are interpreting. More than privileging a textual preposition, our duty is to
ensure that the constitutional project ratified by our people is given full effect.

At issue in this case is the interpretation of Article VIII, Section 8 of the Constitution which provides
the following:

Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme
Court composed of the Chief Justice as ex officio Chairman, the Secretary of

Justice, and a representative of the Congress as ex officio Members, a representative of the

Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of
the private sector. (Emphasis provided)

Mainly deploying verba legis as its interpretative modality, the main opinion chooses to focus on the
article "a." As correctly pointed out in the original dissent of Justice Robert A bad, the entire phrase
includes the words "representative of Congress" and "ex officio Members." In the context of the
constitutional plan involving a bicameral Congress, these words create ambiguity.

A Bicameral Congress

Our Constitution creates a Congress consisting of two chambers. Thus, in Article VI, Section 1, the
Constitution provides the following:

The legislative power shall be vested in the Congress of the Philippines which shall consist of a
Senate and a House of Representatives x x x. (Emphasis provided)

Senators are "elected at large by the qualified voters of the Philippines".1 Members of the House of
Representatives, on the other hand, are elected by legislative districts2 or through the party list
system.3 The term of a Senator4 is different from that of a Member of the House of
Representatives.5 Therefore, the Senate and the House of Representatives while component parts
of the Congress are not the same in terms of their representation. The very rationale of a bicameral
system is to have the Senators represent a national constituency. Representatives of the House of
Representatives, on the other hand, are dominantly from legislative districts except for one fifth
which are from the party list system.

Each chamber is organized separately.6 The Senate and the House each promulgates their own
rules of procedure.7 Each chamber maintains separate Journals.8 They each have separate Records
of their proceedings.9The Senate and the House of Representatives discipline their own respective
members.10
To belabor the point: There is no presiding officer for the Congress of the Philippines, but there is a
Senate President and a Speaker of the House of Representatives. There is no single journal for the
Congress of the Philippines, but there is a journal for the Senate and a journal for the House of
Representatives. There is no record of proceedings for the entire Congress of the Philippines, but
there is a Record of proceedings for the Senate and a Record of proceedings for the House of
Representatives. The Congress of the Philippines does not discipline its members. It is the Senate
that promulgates its own rules and disciplines its members. Likewise, it is the House that
promulgates its own rules and disciplines its members.

No Senator reports to the Congress of the Philippines. Rather, he or she reports to the Senate. No
Member of the House of Representatives reports to the Congress of the Philippines. Rather, he or
she reports to the House of Representatives.

Congress, therefore, is the Senate and the House of Representatives. Congress does not exist
separate from the Senate and the House of Representatives.

Any Senator acting ex officio or as a representative of the Senate must get directions from the
Senate. By constitutional design, he or she cannot get instructions from the House of
Representatives. If a Senator represents the Congress rather than simply the Senate, then he or she
must be open to amend or modify the instructions given to him or her by the Senate if the House of
Representatives instructions are different. Yet, the Constitution vests disciplinary power only on the
Senate for any Senator.

The same argument applies to a Member of the House of Representatives.

No Senator may carry instructions from the House of Representatives. No Member of the House of
Representatives may carry instructions from the Senate. Neither Senator nor Member of the House
of Representatives may therefore represent Congress as a whole.

The difference between the Senate and the House of Representative was a subject of discussion in
the Constitutional Commission. In the July 21, 1986 Records of the Constitutional Commission,
Commissioner Jose F. S. Bengzon presented the following argument during the discussion on
bicameralism, on the distinction between Congressmen and Senators, and the role of the Filipino
people in making these officials accountable:

I grant the proposition that the Members of the House of Representatives are closer to the people
that they represent. I grant the proposition that the Members of the House of Representatives
campaign on a one-to-one basis with the people in the barrios and their constituencies. I also grant
the proposition that the candidates for Senator do not have as much time to mingle around with their
constituencies in their respective home bases as the candidates for the House. I also grant the
proposition that the candidates for the Senate go around the country in their efforts to win the votes
of all the members of the electorate at a lesser time than that given to the candidates for the House
of Representatives. But then the lesson of the last 14 years has made us mature in our political
thinking and has given us political will and self-determination. We really cannot disassociate the fact
that the Congressman, the Member of the House of Representatives, no matter how national he
would like to think, is very much strongly drawn into the problems of his local constituents in his own
district.

Due to the maturity of the Filipinos for the last 14 years and because of the emergence of people
power, I believe that this so-called people power can be used to monitor not only the Members of the
House of Representatives but also the Members of the Senate. As I said we may have probably
adopted the American formula in the beginning but over these years, I think we have developed that
kind of a system and adopted it to our own needs. So at this point in time, with people power
working, it is not only the Members of the House who can be subjected to people power but also the
Members of the Senate because they can also be picketed and criticized through written articles and
talk shows. And even the people not only from their constituencies in their respective regions and
districts but from the whole country can exercise people power against the Members of the Senate
because they are supposed to represent the entire country. So while the Members of Congress
become unconsciously parochial in their desire to help their constituencies, the Members of the
Senate are there to take a look at all of these parochial proposals and coordinate them with the
national problems. They may be detached in that sense but they are not detached from the people
because they themselves know and realize that they owe their position not only to the people from
their respective provinces but also to the people from the whole country. So, I say that people power
now will be able to monitor the activities of the Members of the House of Representatives and that
very same people power can be also used to monitor the activities of the Members of the Senate.11

Commissioner Bengzon provided an illustration of the fundamental distinction between the House of
Representatives and the Senate, particularly regarding their respective constituencies and
electorate. These differences, however, only illustrate that the work of the Senate and the House of
Representatives taken together results in a Congress functioning as one branch of government.
Article VI, Section 1, as approved by the Commission, spoke of one Congress whose powers are
vested in both the House of Representatives and the Senate.

Thus, when the Constitution provides that a "representative of Congress" should participate in the
Judicial and Bar Council, it cannot mean a Senator carrying out the instructions of the House or a
Member of the House of Representative carrying out instructions from the Senate. It is not the kind
of a single Congress contemplated by our Constitution. The opinion therefore that a Senator or a
Member of the House of Representative may represent the Congress as a whole is contrary to the
intent of the Constitution. It is unworkable.

One mechanism used in the past to work out the consequence of the majoritys opinion is to allow a
Senator and a Member of the House of Representative to sit in the Judicial and Bar Council but to
each allow them only half a vote.

Within the Judicial and Bar Council, the Chief Justice is entitled to one vote. The Secretary of Justice
is also entitled to one whole vote and so are the Integrated Bar of the Philippines, the private sector,
legal academia, and retired justices. Each of these sectors are given equal importance and
rewarded with one whole vote. However, in this view, the Senate is only worth fifty percent of the
wisdom of these sectors. Likewise, the wisdom of the House of Representatives is only worth fifty
percent of these institutions.

This is constitutionally abominable. It is inconceivable that our people, in ratifying the Constitution
granting awesome powers to Congress, intended to diminish its component parts. After all, they are
institutions composed of people who have submitted themselves to the electorate. In creating
shortlists of possible candidates to the judiciary, we can safely suppose that their input is not less
than the input of the professor of law or the member of the Integrated Bar of the Philippines or the
member from the private sector.

The other solution done in the past was to alternate the seat between a Senator and a Member of
the House of Representatives.

To alternate the seat given to Congress between the Senate and the House of Representatives
would mean not giving a seat to the Congress at all. Again, when a Senator is seated, he or she
represents the Senate and not Congress as a whole. When a Member of the House of
Representative is seated, he or she can only represent Congress as a whole. Thus, alternating the
seat not only diminishes congressional representation; it negates it.

Constitutional Interpretation

The argument that swayed the majority in this cases original decision was that if those who crafted
our Constitution intended that there be two representatives from Congress, it would not have used
the preposition "a" in Article VIII, Section 8 (1). However, beyond the number of representatives, the
Constitution intends that in the Judicial and Bar Council, there will be representation from Congress
and that it will be "ex officio", i.e., by virtue of their positions or offices. We note that the provision did
not provide for a number of members to the Judicial and Bar Council. This is unlike the provisions
creating many other bodies in the Constitution.12

In other words, we could privilege or start our interpretation only from the preposition "a" and from
there provide a meaning that ensures a difficult and unworkable result -- one which undermines the
concept of a bicameral congress implied in all the other 114 other places in the Constitution that
uses the word "Congress".

Or, we could give the provision a reasonable interpretation that is within the expectations of the
people who ratified the Constitution by also seeing and reading the words "representative of
Congress" and "ex officio."

This proposed interpretation does not violate the basic tenet regarding the authoritativeness of the
text of the Constitution. It does not detract from the text. It follows the canonical requirement of verba
legis. But in doing so, we encounter an ambiguity.

In Macalintal v. Presidential Electoral Tribunal,13 we said:

As the Constitution is not primarily a lawyers document, it being essential for the rule of law to
obtain that it should ever be present in the peoples consciousness, its language as much as
possible should be understood in the sense they have in common use. What it says according to the
text of the provision to be construed 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. Thus these are
cases where the need for construction is reduced to a minimum.

However, where there is ambiguity or doubt, the words of the Constitution should be interpreted in
accordance with the intent of its framers or ratio legis et anima. A doubtful provision must be
examined in light of the history of the times, and the condition and circumstances surrounding the
framing of the Constitution. In following this guideline, courts should bear in mind the object sought
to be accomplished in adopting a doubtful constitutional provision, and the evils sought to be
prevented or remedied. Consequently, the intent of the framers and the people ratifying the
constitution, and not the panderings of self-indulgent men, should be given effect.

Last, ut magis valeat quam pereat the Constitution is to be interpreted as a whole. We intoned thus
in the landmark case of Civil Liberties Union v. Executive Secretary:

It is a well-established rule in constitutional construction that no one provision of the Constitution is

to be separated from all the others, to be considered alone, but that all the provisions bearing upon a
particular subject are to be brought into view and to be so interpreted as to effectuate the great
purposes of the instrument. Sections bearing on a particular subject should be considered and
interpreted together as to effectuate the whole purpose of the Constitution and one section is not to
be allowed to defeat another, if by any reasonable construction, the two can be made to stand
together.

In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the words idle
and nugatory. (Emphasis provided)

And in Civil Liberties Union v. Executive Secretary,13 we said:

A foolproof yardstick in constitutional construction is the intention underlying the provision under
consideration. Thus, it has been held that the 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 the 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.

The authoritativeness of text is no excuse to provide an unworkable result or one which undermines
the intended structure of government provided in the Constitution. Text is authoritative, but it is not
exhaustive of the entire universe of meaning.

There is no compelling reason why we should blind ourselves as to the meaning of "representative
of Congress" and "ex officio." There is no compelling reason why there should only be one
representative of a bicameral Congress.

Proposed Reasons for Only One Representative of Congress

The first reason to support the need for only one representative of Congress is the belief that there
needs to be an odd number in the Judicial and Bar Council.

This is true only if the decision of the constitutional organ in question is a dichotomous one, i.e., a
yes or a no. It is in this sense that a tie-breaker will be necessary.

However, the Judicial and Bar Council is not that sort of a constitutional organ. Its duty is to provide
the President with a shortlist of candidates to every judicial position. We take judicial notice that for
vacancies, each member of the Judicial and Bar Council is asked to list at least three (3) names. All
these votes are tallied and those who garner a specific plurality are thus put on the list and
transmitted to the President. There had been no occasion when the Judicial and Bar Council ever
needed to break a tie. The Judicial and Bar Councils functions proceed regardless of whether they
have seven or eight members.

The second reason that the main opinion accepted as persuasive was the opinion that Congress
does not discharge its function to check and balance the power of both the Judiciary and the
Executive in the Judicial and Bar Council. From this premise, it then proceeds to argue that the
Representative of Congress, who is ex officio, does not need to consult with Congress as a whole.

This is very perplexing and difficult to accept.

By virtue of the fundamental premise of separation of powers, the appointing power in the judiciary
should be done by the Supreme Court. However, for judicial positions, this is vested in the
Executive. Furthermore, because of the importance of these appointments, the Presidents
discretion is limited to a shortlist submitted to him by the Judicial and Bar Council which is under the
supervision of the Supreme Court but composed of several components.

The Judicial and Bar Council represents the constituents affected by judicial appointments and by
extension, judicial decisions. It provides for those who have some function vis a vis the law that
should be applied and interpreted by our courts. Hence, represented are practicing lawyers
(Integrated Bar of the Philippines), prosecutors (Secretary of the Department of Justice), legal
academia (professor of law), and judges or justices (retired justice and the Chief Justice). Also
represented in some way are those that will be affected by the interpretation directly (private sector
representative).

Congress is represented for many reasons.

One, it crafts statutes and to that extent may want to ensure that those who are appointed to the
judiciary are familiar with these statutes and will have the competence, integrity, and independence
to read its meaning.

Two, the power of judicial review vests our courts with the ability to nullify their acts. Congress,
therefore, has an interest in the judicial philosophy of those considered for appointment into our
judiciary.

Three, Congress is a political organ. As such, it is familiar with the biases of our political leaders
including that of the President. Thus, it will have greater sensitivity to the necessity for political
accommodations if there be any. Keeping in mind the independence required of our judges and
justices, the Members of Congress may be able to appreciate the kind of balance that will be
necessary -- the same balance that the President might be able to likewise appreciate -- when
putting a person in the shortlist of judicial candidates. Not only do they appreciate this balance, they
embody it. Senators and Members of the House of Representatives (unlike any of the other
members of the Judicial and Bar Council), periodically submit themselves to the electorate.

It is for these reasons that the Congressional representatives in the Judicial and Bar Council may be
instructed by their respective chambers to consider some principles and directions. Through
resolutions or actions by the Congressional Committees they represent, the JBC Congressional
representatives choices may be constrained. Therefore, they do not sit there just to represent
themselves. Again, they are "representatives of Congress" "ex officio".

The third reason to support only one representative of Congress is the belief that there is the
"unmistakable tenor" in the provision in question that one co-equal branch should be represented
only by one Representative.14 It may be true that the Secretary of Justice is the political alter ego of
the President or the Executive. However, Congress as a whole does not have a political alter ego. In
other words, while the Executive may be represented by a single individual, Congress cannot be
represented by an individual. Congress, as stated earlier, operates through the Senate and the
House of Representatives. Unlike the Executive, the Legislative branch cannot be represented by
only one individual.

A Note on the Work of the Constitutional Commission

Time and again, we have clarified the interpretative value to Us of the deliberations of the
Constitutional Commission. Thus in Civil Liberties Union v. Executive Secretary, we emphasized:
While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional
convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto
may be had only when other guides fail as said proceedings are powerless to vary the terms of the
Constitution when the meaning is clear. Debates in the constitutional convention are of value as
showing the views of the individual members, and as indicating the reason for their votes, but they
give Us no light as to the views of the large majority who did not talk, much less of the mass or our
fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it
safer to construe the constitution from what appears upon its face.The proper interpretation
therefore depends more on how it was understood by the people adopting it than in the
framers understanding thereof.15 (Emphasis provided)

Also worth Our recall is the celebrated comment of Charles P. Curtis, Jr. on the role of history in
constitutional exegesis:16

The intention of the framers of the Constitution, even assuming we could discover what it was, when
it is not adequately expressed in the Constitution, that is to say, what they meant when they did not
say it, surely that has no binding force upon us. If we look behind or beyond what they set down
in the document, prying into what else they wrote and what they said, anything we may find is
only advisory. They may sit in at our councils. There is no reason why we should eavesdrop
on theirs.17 (Emphasis provided)

In addition to the interpretative value of the discussion in the Constitutional Commission, we should
always be careful when we quote from their records without understanding their context.

The Committees of the Constitutional Commission were all tasked to finish their reports not later
than July 7, 1986.18 The Second and Third Readings were scheduled to finish not later than August
15, 1986.19 The members of the Sponsorship and Style Committee were tasked to finish their work of
formulating and polishing the style of the final draft of the new Constitution scheduled for submission
to the entire membership of the Commission not later than August 25, 1986.20

The Rules of the Constitutional Commission also provided for a process of approving resolutions
and amendments.

Constitutional proposals were embodied in resolutions signed by the author.21 If they emanated from
a committee, the resolution was signed by its chairman.22 Resolutions were filed with the Secretary-
General.23 The First Reading took place when the titles of the resolutions were read and referred to
the appropriate committee.24

The Committees then submitted a Report on each resolution.25 The Steering Committee took charge
of including the committee report in the Calendar for Second Reading.26 The Second Reading took
place on the day set for the consideration of a resolution.27 The provisions were read in full with the
amendments proposed by the committee, if there were any.28

A motion to close debate took place after three speeches for and two against, or if only one speech
has been raised and none against it.29 The President of the Constitutional Commission had the
prerogative to allow debates among those who had indicated that they intended to be heard on
certain matters.30 After the close of the debate, the Constitutional Commission proceeded to consider
the Committee amendments.31

After a resolution was approved on Second Reading, it was included in the Calendar for Third
Reading.32 Neither further debate nor amendment shall be made on the resolution on its Third
Reading.33 All constitutional proposals approved by the Commission after Third Reading were
referred to the Committees on Sponsorship and Style for collation, organization, and consolidation
into a complete and final draft of the Constitution.34 The final draft was submitted to the Commission
for the sole purpose of determining whether it reflects faithfully and accurately the proposals as
approved on Second Reading.35

With respect to the provision which is now Article VIII, Section 8 (1), the timetable was as follows:

On July 10, 1986, the Committee on the Judiciary presented its Report to the
Commission.36 Deliberations then took place on the same day; on July 11, 1986; and on July 14,
1986. It was on July 10 that Commissioner Rodrigo raised points regarding the Judicial and Bar
Council.37 The discussion spoke of the Judicial and Bar Council having seven members.

Numerous mentions of the Judicial and Bar Council being comprised of seven members were also
made by Commissioners on July 14, 1986. On the same day, the amended article was approved by
unanimous voting.38

On July 19, 1986, the vote on Third Reading on the Article on the Judiciary took place.39 The vote
was 43 and none against.40

Committee Report No. 22 proposing an article on a National Assembly was reported out by July 21,
1986.41 It provided for a unicameral assembly. Commissioner Hilario Davide, Jr., made the
presentation and stated that they had a very difficult decision to make regarding bicameralism and
unicameralism.42 The debate occupied the Commission for the whole day.

Then, a vote on the structure of Congress took place.43 Forty four (44) commissioners cast their
votes during the roll call.44 The vote was 23 to 22.45

On October 8, 1986, the Article on the Judiciary was reopened for purposes of introducing
amendments to the proposed Sections 3, 7, 10, 11, 13, and 14.46

On October 9, 1986, the entire Article on the Legislature was approved on Third Reading.47

By October 10, 1986, changes in style on the Article on the Legislature were introduced.48

On October 15, 1986, Commissioner Guingona presented the 1986 Constitution to the President of
the Constitutional Commission, Cecilia Munoz-Palma.49

It is apparent that the Constitutional Commission either through the Style and Sponsorship
Committee or the Committees on the Legislature and the Judiciary was not able to amend the
provision concerning the Judicial and Bar Council after the Commission had decided to propose a
bicameral Congress. We can take judicial notice of the chronology of events during the deliberations
of the Constitutional Commission. The chronology should be taken as much as the substance of
discussions exchanged between the Commissioners.

The quotations from the Commissioners mentioned in the main opinion and in the proposed
resolution of the present Motion for Reconsideration should thus be appreciated in its proper context.

The interpellation involving Commissioners Rodrigo and Concepcion took place on July 10, 1986
and on July 14, 1986.50 These discussions were about Committee Report No. 18 on the Judiciary.
Thus:
MR. RODRIGO: Let me go to another point then.

On page 2, Section 5, there is a novel provision about appointments of members of the Supreme
Court and of judges of lower courts. At present it is the President who appoints them. If there is a
Commission on Appointments, then it is the President with the confirmation of the Commission on
Appointments. In this proposal, we would like to establish a new office, a sort of a board composed
of seven members, called the Judicial and Bar Council. And while the President will still appoint the
members of the judiciary, he will be limited to the recommendees of this Council.

xxxx

MR. RODRIGO: Of the seven members of the Judicial and Bar Council, the President appoints four
of them who are the regular members.

xxxx

MR. CONCEPCION: The only purpose of the Committee is to eliminate partisan politics.51

xxxx

It must also be noted that during the same day and in the same discussion, both Commissioners
Rodrigo and Concepcion later on referred to a National Assembly and not a Congress, as can be
seen here:

MR. RODRIGO: Another point. Under our present Constitution, the National Assembly may enact
rules of court, is that right? On page 4, the proviso on lines 17 to 19 of the Article on the Judiciary
provides:

The National Assembly may repeal, alter, or supplement the said rules with the advice and
concurrence of the Supreme Court.

MR. CONCEPCION: Yes.

MR. RODRIGO: So, two things are required of the National Assembly before it can repeal, alter or
supplement the rules concerning the protection and enforcement of constitutional rights, pleading,
etc. it must have the advice and concurrence of the Supreme Court.

MR. CONCEPCION: That is correct.52

On July 14, 1986, the Commission proceeded with the Period of Amendments. This was when the
exchange noted in the main opinion took place. Thus:

MR. RODRIGO: If my amendment is approved, then the provision will be exactly the same as the
provision in the 1935 Constitution, Article VIII, Section 5.

xxxx

If we do not remove the proposed amendment on the creation of the Judicial and Bar Council, this
will be a diminution of the appointing power of the highest magistrate of the land, of the President of
the Philippines elected by all the Filipino people. The appointing power will be limited by a group of
seven people who are not elected by the people but only appointed.
Mr. Presiding Officer, if this Council is created, there will be no uniformity in our constitutional
provisions on appointments. The members of the Judiciary will be segregated from the rest of the
government. Even a municipal judge cannot be appointed by the President except upon
recommendation or nomination of three names by this committee of seven people, commissioners of
the Commission on Elections, the COA and Commission on Civil Service x x x even ambassadors,
generals of the Army will not come under this restriction. Why are we going to segregate the
Judiciary from the rest of our government in the appointment of the high-ranking officials?

Another reason is that this Council will be ineffective. It will just besmirch the honor of our President
without being effective at all because this Council will be under the influence of the President. Four
out of seven are appointees of the President, and they can be reappointed when their term ends.
Therefore, they would kowtow to the President. A fifth member is the Minister of Justice, an alter ego
of the President. Another member represents the legislature. In all probability, the controlling party in
the legislature belongs to the President and, therefore, this representative from the National
Assembly is also under the influence of the President. And may I say, Mr. Presiding Officer, that
even the Chief Justice of the Supreme Court is an appointee of the President. So, it is futile; he will
be influenced anyway by the President.53

It must again be noted that during this day and period of amendments after the quoted passage in
the Decision, the Commission later on made use of the term National Assembly and not Congress
again:

MR. MAAMBONG: Presiding Officer and members of the Committee, I propose to delete the last
sentence on Section 16, lines 28 to 30 which reads: "The Chief Justice shall address the National
Assembly at the opening of each regular session."

May I explain that I have gone over the operations of other deliberative assemblies in some parts of
the world, and I noticed that it is only the Chief Executive or head of state who addresses the
National Assembly at its opening. When we say "opening," we are referring to the first convening of
any national assembly. Hence, when the Chief Executive or head of state addresses the National
Assembly on that occasion, no other speaker is allowed to address the body.

So I move for the deletion of this last sentence.54

Based on the chronology of events, the discussions cited by the main ponencia took place when the
commissioners were still contemplating a unicameral legislature in the course of this discussion.
Necessarily, only one Representative would be needed to fully effect the participation of a
unicameral legislature. Therefore, any mention of the composition of the JBC having seven
members in the records of the Constitutional Commission, particularly during the dates cited, was
obviously within the context that the Commission had not yet voted and agreed upon a bicameral
legislature.

The composition of the Congress as a bilateral legislature became final only after the JBC
discussions as a seven-member Council indicated in the Records of the Constitutional Commission
took place. This puts into the proper context the recognition by Commissioner Christian Monsod on
July 30, 1986, which runs as follows:

Last week, we voted for a bicameral legislature. Perhaps it is symptomatic of what the thinking of
this group is, that all the provisions that were being drafted up to that time assumed a unicameral
government.55
The repeated mentions of the JBC having seven members as indicated in the Records of the
Constitutional Commission do not justify the points raised by petitioner. This is a situation where the
records of the Constitutional Commission do not serve even as persuasive means to ascertain intent
at least in so far as the intended numbers for the Judicial and Bar Council. Certainly they are not
relevant even to advise us on how Congress is to be represented in that constitutional organ.

We should never forget that when we interpret the Constitution, we do so with full appreciation of
every part of the text within an entire document understood by the people as they ratified it and with
all its contemporary consequences. As an eminent author in constitutional theory has observed while
going through the various interpretative modes presented in jurisprudence: "x x x all of the
methodologies that will be discussed, properly understood, figure in constitutional analysis as
opportunities: as starting points, constituent parts of complex arguments, or concluding
evocations." 56

Discerning that there should be a Senator and a Member of the House of Representatives that sit in
the Judicial and Bar Council so that Congress can be fully represented ex officio is not judicial
activism. It is in keeping with the constitutional project of a bicameral Congress that is effective
whenever and wherever it is represented. It is in tune with how our people understand Congress as
described in the fundamental law. It is consistent with our duty to read the authoritative text of the
Constitution so that ordinary people who seek to understand this most basic law through Our
decisions would understand that beyond a single isolated text -- even beyond a prepos1t10n in
Article VIII, Section 8 (1 ), our primordial values and principles are framed, congealed and will be
given full effect.

In a sense, we do not just read words in a legal document; we give meaning to a Constitution.

For these reasons, I vote to grant the Motion for Reconsideration and deny the Petition for lack of
merit.

MARVIC MARIO VICTOR F. LEONEN

Associate Justice

G.R. No. 202242 April 16, 2013 FRANCISCO I. CHAVEZ vs.

JUDICIAL AND BAR COUNCIL,
G.R. No. 202242 April 16, 2013
FRANCISCO I. CHAVEZ, Petitioner,
vs.
JUDICIALAND BAR COUNCIL, SEN. FRANCIS JOSEPH G. ESCUDERO and REP. NIEL C.
TUPAS, JR.,Respondents.
MENDOZA, J.:
NATURE:
The case is a motion for reconsideration filed by the JBC in a prior decision rendered July 17, 2012 that
JBCs action of allowing more than one member of the congress to represent the JBC to be
unconstitutional

FACTS:

In 1994, instead of having only seven members, an eighth member was added to the JBC as two
representatives from Congress began sitting in the JBC one from the House of Representatives and
one from the Senate, with each having one-half (1/2) of a vote. Then, the JBC En Banc, in separate
meetings held in 2000 and 2001, decided to allow the representatives from the Senate and the House of
Representatives one full vote each. Senator Francis Joseph G. Escudero and Congressman Niel C.
Tupas, Jr. (respondents) simultaneously sit in the JBC as representatives of the legislature. It is this
practice that petitioner has questioned in this petition. it should mean one representative each from both
Houses which comprise the entire Congress. Respondent contends that the phrase a representative of
congress refers that both houses of congress should have one representative each, and that these two
houses are permanent and mandatory components of congress as part of the bicameral system of
legislature. Both houses have their respective powers in performance of their duties. Art VIII Sec 8 of the
constitution provides for the component of the JBC to be 7 members only with only one representative
from congress.

ISSUE:

Whether the JBCs practice of having members from the Senate and the House of Representatives
making 8 instead of 7 sitting members to be unconstitutional as provided in Art VIII Sec 8 of the
constitution.

HELD: Yes. The practice is unconstitutional; the court held that the phrase a representative of congress
should be construed as to having only one representative that would come from either house, not both.
That the framers of the constitution only intended for one seat of the JBC to be allotted for the legislative.

It is evident that the definition of Congress as a bicameral body refers to its primary function in
government to legislate. In the passage of laws, the Constitution is explicit in the distinction of the role
of each house in the process. The same holds true in Congress non-legislative powers. An inter-play
between the two houses is necessary in the realization of these powers causing a vivid dichotomy that
the Court cannot simply discount. This, however, cannot be said in the case of JBC representation
because no liaison between the two houses exists in the workings of the JBC. Hence, the term
Congress must be taken to mean the entire legislative department. The Constitution mandates that the
JBC be composed of seven (7) members only.

FALLO: The motion was denied.

 Republic of the Philippines
Supreme Court
Manila

EN BANC

JELBERT B. GALICTO, G.R. No. 193978

Petitioner,
Present:
CORONA, C.J.,
CARPIO,
VELASCO, JR.,
- versus - LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,*
ABAD,
VILLARAMA, JR.,
H.E. PRESIDENT BENIGNO SIMEON PEREZ,
C. AQUINO III, in his capacity as MENDOZA,
SERENO,**
President of the Republic of the
REYES, and
Philippines; ATTY. PAQUITO N. PERLAS-BERNABE, JJ.
OCHOA, JR., in his capacity as
Executive Secretary; and
FLORENCIO B. ABAD, in his capacity Promulgated:
as Secretary of the Department of
Budget and Management,
Respondents. February 28, 2012
x-----------------------------------------------------------------------------------------x

RESOLUTION

BRION, J.:

Before us is a Petition for Certiorari and Prohibition with Application for

Writ of Preliminary Injunction and/or Temporary Restraining Order,[1] seeking to
nullify and enjoin the implementation of Executive Order No. (EO) 7 issued by the
Office of the President on September 8, 2010. Petitioner Jelbert B. Galicto asserts
that EO 7 is unconstitutional for having been issued beyond the powers of the
President and for being in breach of existing laws.

The petitioner is a Filipino citizen and an employee of the Philippine Health

Insurance Corporation (PhilHealth).[2] He is currently holding the position of Court
Attorney IV and is assigned at the PhilHealth Regional Office CARAGA.[3]
Respondent Benigno Simeon C. Aquino III is the President of the Republic of
the Philippines (Pres. Aquino); he issued EO 7 and has the duty of implementing
it.Respondent Paquito N. Ochoa, Jr. is the incumbent Executive Secretary and, as
the alter ego of Pres. Aquino, is tasked with the implementation of EO
7. Respondent Florencio B. Abad is the incumbent Secretary of the Department of
Budget and Management (DBM) charged with the implementation of EO 7.[4]

The Antecedent Facts

On July 26, 2010, Pres. Aquino made public in his first State of the Nation
Address the alleged excessive allowances, bonuses and other benefits of Officers
and Members of the Board of Directors of the Manila Waterworks and Sewerage
System a government owned and controlled corporation (GOCC) which has been
unable to meet its standing obligations.[5] Subsequently, the Senate of
the Philippines (Senate), through the Senate Committee on Government
Corporations and Public Enterprises, conducted an inquiry in aid of legislation on
the reported excessive salaries, allowances, and other benefits of GOCCs and
government financial institutions (GFIs).[6]
 Based on its findings that officials and governing boards of various [GOCCs]
and [GFIs] x x x have been granting themselves unwarranted allowances, bonuses,
incentives, stock options, and other benefits [as well as other] irregular and abusive
practices,[7] the Senate issued Senate Resolution No. 17 urging the President to order
the immediate suspension of the unusually large and apparently excessive
allowances, bonuses, incentives and other perks of members of the governing boards
of [GOCCs] and [GFIs].[8]

Heeding the call of Congress, Pres. Aquino, on September 8, 2010, issued EO

7, entitled Directing the Rationalization of the Compensation and Position
Classification System in the [GOCCs] and [GFIs], and for Other Purposes. EO 7
provided for the guiding principles and framework to establish a fixed compensation
and position classification system for GOCCs and GFIs. A Task Force was also
created to review all remunerations of GOCC and GFI employees and officers, while
GOCCs and GFIs were ordered to submit to the Task Force information regarding
their compensation. Finally, EO 7 ordered (1) a moratorium on the increases in
the salaries and other forms of compensation, except salary adjustments under
EO 8011 and EO 900, of all GOCC and GFI employees for an indefinite period
to be set by the President,[9] and (2) a suspension of all allowances, bonuses and
incentives of members of the Board of Directors/Trustees until December 31,
2010.[10]
EO 7 was published on September 10, 2010.[11] It took effect on September
25, 2010 and precluded the Board of Directors, Trustees and/or Officers of GOCCs
from granting and releasing bonuses and allowances to members of the board of
directors, and from increasing salary rates of and granting new or additional benefits
and allowances to their employees.

The Petition

The petitioner claims that as a PhilHealth employee, he is affected by the

implementation of EO 7, which was issued with grave abuse of discretion amounting
to lack or excess of jurisdiction, based on the following arguments:

I.

EXECUTIVE ORDER NO. 7 IS NULL AND VOID FOR LACK OF LEGAL

BASIS DUE TO THE FOLLOWING GROUNDS:

A. P.D. 985 IS NOT APPLICABLE AS BASIS FOR EXECUTIVE

ORDER NO. 7 BECAUSE THE GOVERNMENT-OWNED AND
 CONTROLLED CORPORATIONS WERE SUBSEQUENTLY
GRANTED THE POWER TO FIX COMPENSATION LONG
AFTER SUCH POWER HAS BEEN REVOKED BY P.D. 1597
AND R.A. 6758.

B. THE GOVERNMENT-OWNED AND CONTROLLED

CORPORATIONS DO NOT NEED TO HAVE ITS
COMPENSATION PLANS, RATES AND POLICIES
REVIEWED BY THE DBM AND APPROVED BY THE
PRESIDENT BECAUSE P.D. 1597 REQUIRES ONLY THE
GOCCs TO REPORT TO THE OFFICE TO THE PRESIDENT
THEIR COMPENSATION PLANS AND RATES BUT THE
SAME DOES NOT GIVE THE PRESIDENT THE POWER OF
CONTROL OVER THE FISCAL POWER OF THE GOCCs.

C. J.R. NO. 4, [SERIES] 2009 IS NOT APPLICABLE AS LEGAL BASIS

BECAUSE IT HAD NOT RIPENED INTO X X X LAW, THE
SAME NOT HAVING BEEN PUBLISHED.

D. ASSUMING ARGUENDO THAT J.R. NO. 1, S. 2004 (sic) AND J.R.

4, S. 2009 ARE VALID, STILL THEY ARE NOT APPLICABLE
AS LEGAL BASIS BECAUSE THEY ARE NOT LAWS WHICH
MAY VALIDLY DELEGATE POWER TO THE PRESIDENT TO
SUSPEND THE POWER OF THE BOARD TO FIX
COMPENSATION.

II.

EXECUTIVE ORDER NO. 7 IS INVALID FOR DIVESTING THE BOARD OF

DIRECTORS OF [THE] GOCCS OF THEIR POWER TO FIX THE
COMPENSATION, A POWER WHICH IS A LEGISLATIVE GRANT AND
WHICH COULD NOT BE REVOKED OR MODIFIED BY AN EXECUTIVE
FIAT.

III.

EXECUTIVE ORDER NO. 7 IS BY SUBSTANCE A LAW, WHICH IS A

DEROGATION OF CONGRESSIONAL PREROGATIVE AND IS
THEREFORE UNCONSTITUTIONAL.

IV.

THE ACTS OF SUSPENDING AND IMPOSING MORATORIUM ARE

ULTRA VIRES ACTS BECAUSE J.R. NO. 4 DOES NOT EXPRESSLY
AUTHORIZE THE PRESIDENT TO EXERCISE SUCH POWERS.

V.
 EXECUTIVE ORDER NO. 7 IS AN INVALID ISSUANCE BECAUSE IT HAS
NO SUFFICIENT STANDARDS AND IS THEREFORE ARBITRARY,
UNREASONABLE AND A VIOLATION OF SUBSTANTIVE DUE PROCESS.

VI.

EXECUTIVE ORDER NO. 7 INVOLVES THE DETERMINATION AND

DISCRETION AS TO WHAT THE LAW SHALL BE AND IS THEREFORE
INVALID FOR ITS USURPATION OF LEGISLATIVE POWER.

VII.

CONSISTENT WITH THE DECISION OF THE SUPREME COURT IN

PIMENTEL V. AGUIRRE CASE, EXECUTIVE ORDER NO. 7 IS ONLY
DIRECTORY AND NOT MANDATORY.[12]

The Case for the Respondents

On December 13, 2010, the respondents filed their Comment. They pointed
out the following procedural defects as grounds for the petitions dismissal: (1) the
petitioner lacks locus standi; (2) the petitioner failed to attach a board resolution or
secretarys certificate authorizing him to question EO 7 in behalf of PhilHealth; (3)
the petitioners signature does not indicate his PTR Number, Mandatory Continuing
Legal Education (MCLE) Compliance Number and Integrated Bar of the Philippines
(IBP) Number; (4) the jurat of the Verification and Certification of Non-Forum
Shopping failed to indicate a valid identification card as provided under A.M. No.
02-8-13-SC; (5) the President should be dropped as a party respondent as he is
immune from suit; and (6) certiorari is not applicable to this case.[13]

The respondents also raised substantive defenses to support the validity of EO

7. They claim that the President exercises control over the governing boards of the
GOCCs and GFIs; thus, he can fix their compensation packages. In addition, EO 7
was issued in accordance with law for the purpose of controlling the grant of
excessive salaries, allowances, incentives and other benefits to GOCC and GFI
employees. They also advocate the validity of Joint Resolution (J.R.) No. 4, which
they point to as the authority for issuing EO 7.[14]

Meanwhile, on June 6, 2011, Congress enacted Republic Act (R.A.) No.

10149,[15] otherwise known as the GOCC Governance Act of 2011. Section 11 of
RA 10149 expressly authorizes the President to fix the compensation framework of
GOCCs and GFIs.

The Courts Ruling

We resolve to DISMISS the petition for its patent formal and procedural
infirmities, and for having been mooted by subsequent events.
A. Certiorari is not the proper remedy.

Under the Rules of Court, petitions for Certiorari and Prohibition are availed
of to question judicial, quasi-judicial and mandatory acts. Since the issuance of an
EO is not judicial, quasi-judicial or a mandatory act, a petition for certiorari and
prohibition is an incorrect remedy; instead a petition for declaratory relief under Rule
63 of the Rules of Court, filed with the Regional Trial Court (RTC), is the proper
recourse to assail the validity of EO 7:

Section 1. Who may file petition. Any person interested under a deed, will, contract
or other written instrument, whose rights are affected by a statute, executive
order or regulation, ordinance, or any other governmental regulation may, before
breach or violation thereof, bring an action in the appropriate Regional Trial Court
to determine any question of construction or validity arising, and for a declaration
of his rights or duties, thereunder. (Emphases ours.)

Liga ng mga Barangay National v. City Mayor of Manila[16] is a case in

point.[17] In Liga, we dismissed the petition for certiorari to set aside an EO issued
by a City Mayor and insisted that a petition for declaratory relief should have been
filed with the RTC. We painstakingly ruled:

After due deliberation on the pleadings filed, we resolve to dismiss

this petition for certiorari.
First, the respondents neither acted in any judicial or quasi-judicial
capacity nor arrogated unto themselves any judicial or quasi-judicial
prerogatives. A petition for certiorari under Rule 65 of the 1997 Rules of
Civil Procedure is a special civil action that may be invoked only against a
tribunal, board, or officer exercising judicial or quasi-judicial functions.
Section 1, Rule 65 of the 1997 Rules of Civil Procedure provides:
 SECTION 1. Petition for certiorari. When any
tribunal, board or officer exercising judicial or quasi-judicial
functions has acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction, and there is no appeal, or any
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 annulling or
modifying the proceedings of such tribunal, board or
officer, and granting such incidental reliefs as law and
justice may require.
Elsewise stated, for a writ of certiorari to issue, the following
requisites must concur: (1) it must be directed against a tribunal, board,
or officer exercising judicial or quasi-judicial functions; (2) the tribunal,
board, or officer must have acted without or in excess of jurisdiction or
with grave abuse of discretion amounting [to] lack or excess of
jurisdiction; and (3) there is no appeal or any plain, speedy, and adequate
remedy in the ordinary course of law.
A respondent is said to be exercising judicial function where he
has the power to determine what the law is and what the legal rights of
the parties are, and then undertakes to determine these questions and
adjudicate upon the rights of the parties.
Quasi-judicial function, on the other hand, is a term which applies
to the actions, discretion, etc., of public administrative officers or bodies
required to investigate facts or ascertain the existence of facts, hold
hearings, and draw conclusions from them as a basis for their official
action and to exercise discretion of a judicial nature.
Before a tribunal, board, or officer may exercise judicial or quasi-
judicial acts, it is necessary that there be a law that gives rise to some
specific rights of persons or property under which adverse claims to such
rights are made, and the controversy ensuing therefrom is brought
before a tribunal, board, or officer clothed with power and authority to
determine the law and adjudicate the respective rights of the contending
parties.
The respondents do not fall within the ambit of tribunal, board, or
officer exercising judicial or quasi-judicial functions. As correctly pointed
out by the respondents, the enactment by the City Council of Manila of
the assailed ordinance and the issuance by respondent Mayor of the
questioned executive order were done in the exercise of legislative and
executive functions, respectively, and not of judicial or quasi-judicial
functions. On this score alone, certiorari will not lie.
Second, although the instant petition is styled as a petition
for certiorari, in essence, it seeks the declaration by this Court of the
unconstitutionality or illegality of the questioned ordinance and
executive order. It, thus, partakes of the nature of a petition for
declaratory relief over which this Court has only appellate, not original,
jurisdiction. Section 5, Article VIII of the Constitution provides:
Sec. 5. The Supreme Court shall have the following powers:
(1) Exercise original jurisdiction over cases affecting
ambassadors, other public ministers and consuls,
and over petitions for certiorari,
prohibition, mandamus, quo
warranto, and habeas corpus.
(2) Review, revise, reverse, modify, or affirm on appeal
or certiorari as the law or the Rules of Court may
provide, final judgments and orders of lower courts
in:
(a) All cases in which the constitutionality or
validity of any treaty, international or executive
agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or
regulation is in question. (Italics supplied).
As such, this petition must necessar[ily] fail, as this Court does not
have original jurisdiction over a petition for declaratory relief even if only
questions of law are involved.[18]
 Likewise, in Southern Hemisphere Engagement Network, Inc. v. Anti
Terrorism Council,[19] we similarly dismissed the petitions for certiorari and
prohibition challenging the constitutionality of R.A. No. 9372, otherwise known as
the Human Security Act of 2007, since the respondents therein (members of the
Anti-Terrorism Council) did not exercise judicial or quasi-judicial functions.

While we have recognized in the past that we can exercise the discretion and
rulemaking authority we are granted under the Constitution,[20] and set aside
procedural considerations to permit parties to bring a suit before us at the first
instance through certiorari and/or prohibition,[21] this liberal policy remains to be an
exception to the general rule, and thus, has its limits. In Concepcion v. Commission
on Elections (COMELEC),[22] we emphasized the importance of availing of the
proper remedies and cautioned against the wrongful use of certiorari in order to
assail the quasi-legislative acts of the COMELEC, especially by the wrong party. In
ruling that liberality and the transcendental doctrine cannot trump blatant disregard
of procedural rules, and considering that the petitioner had other available
remedies (such as a petition for declaratory relief with the appropriate RTC under
the terms of Rule 63 of the Rules of Court), as in this case, we categorically ruled:

The petitioners unusual approaches and use of Rule 65 of the

Rules of Court do not appear to us to be the result of any error in reading
Rule 65, given the way the petition was crafted. Rather, it was a
backdoor approach to achieve what the petitioner could not directly do
in his individual capacity under Rule 65. It was, at the very least, an
attempted bypass of other available, albeit lengthier, modes of review
that the Rules of Court provide. While we stop short of concluding that
the petitioners approaches constitute an abuse of process through a
manipulative reading and application of the Rules of Court, we
nevertheless resolve that the petition should be dismissed for its
blatant violation of the Rules. The transgressions alleged in a petition,
however weighty they may sound, cannot be justifications for blatantly
disregarding the rules of procedure, particularly when remedial
measures were available under these same rules to achieve the
petitioners objectives. For our part, we cannot and should not in the
name of liberality and the transcendental importance doctrine
entertain these types of petitions. As we held in the very recent case
 of Lozano, et al. vs. Nograles, albeit from a different perspective, our
liberal approach has its limits and should not be abused.[23] [emphasis
supplied]

B. Petitioner lacks locus standi.

Locus standi or legal standing has been defined as a personal and substantial
interest in a case such that the party has sustained or will sustain direct
injury as a result of the governmental act that is being challenged. The gist
of the question on 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.[24] This requirement of
standing relates to the constitutional mandate that this Court settle only
actual cases or controversies.[25]

Thus, as a general rule, a party is allowed to raise a constitutional question

when (1) he can show that he will personally suffer some actual or threatened injury
because of the allegedly illegal conduct of the government; (2) the injury is fairly
traceable to the challenged action; and (3) the injury is likely to be redressed by a
favorable action.[26]

Jurisprudence defines interest as "material interest, an interest in issue and to

be affected by the decree, as distinguished from mere interest in the question
involved, or a mere incidental interest. By real interest is meant a present
substantial interest, as distinguished from a mere expectancy or a future,
contingent, subordinate, or consequential interest."[27]

To support his claim that he has locus standi to file the present petition, the
petitioner contends that as an employee of PhilHealth, he stands to be prejudiced by
[EO] 7, which suspends or imposes a moratorium on the grants of salary increases
or new or increased benefits to officers and employees of GOCC[s] and x x x
curtail[s] the prerogative of those officers who are to fix and determine his
compensation.[28] The petitioner also claims that he has standing as a member of the
bar in good standing who has an interest in ensuring that laws and orders of the
Philippine government are legally and validly issued and implemented.

The respondents meanwhile argue that the petitioner is not a real party-in-
interest since future increases in salaries and other benefits are merely contingent
events or expectancies.[29] The petitioner, too, is not asserting a public right for which
he is entitled to seek judicial protection. Section 9 of EO 7 reads:

Section 9. Moratorium on Increases in Salaries, Allowances, Incentives and

Other Benefits. Moratorium on increases in the rates of salaries, and the grant of
new increases in the rates of allowances, incentives and other benefits, except salary
adjustments pursuant to Executive Order No. 8011 dated June 17, 2009 and
Executive Order No. 900 dated June 23, 2010, are hereby imposed until specifically
authorized by the President. [emphasis ours]

In the present case, we are not convinced that the petitioner has demonstrated that
he has a personal stake or material interest in the outcome of the case because his
interest, if any, is speculative and based on a mere expectancy. In this case, the
curtailment of future increases in his salaries and other benefits cannot but be
characterized as contingent events or expectancies. To be sure, he has no vested
rights to salary increases and, therefore, the absence of such right deprives the
petitioner of legal standing to assail EO 7.

It has been held that as to the element of injury, such aspect is not something that
just anybody with some grievance or pain may assert. It has to be direct and
substantial to make it worth the courts time, as well as the effort of inquiry into the
constitutionality of the acts of another department of government. If the asserted
injury is more imagined than real, or is merely superficial and insubstantial, then
the courts may end up being importuned to decide a matter that does not really justify
such an excursion into constitutional adjudication.[30] The rationale for this
constitutional requirement of locus standi is by no means trifle. Not only does it
assure the vigorous adversary presentation of the case; more importantly, it must
suffice to warrant the Judiciarys overruling the determination of a coordinate,
democratically elected organ of government, such as the President, and the clear
approval by Congress, in this case. Indeed, the rationale goes to the very essence of
representative democracies.[31]

Neither can the lack of locus standi be cured by the petitioners claim that he is
instituting the present petition as a member of the bar in good standing who has an
interest in ensuring that laws and orders of the Philippine government are legally and
validly issued. This supposed interest has been branded by the Court in Integrated
Bar of the Phils. (IBP) v. Hon. Zamora,[32] as too general an interest which is shared
by other groups and [by] the whole citizenry.[33] Thus, the Court ruled in IBP that
the mere invocation by the IBP of its duty to preserve the rule of law and nothing
more, while undoubtedly true, is not sufficient to clothe it with standing in that
case. The Court made a similar ruling in Prof. David v. Pres. Macapagal-
Arroyo[34] and held that the petitioners therein, who are national officers of the IBP,
have no legal standing, having failed to allege any direct or potential injury which
the IBP, as an institution, or its members may suffer as a consequence of the issuance
of Presidential Proclamation No. 1017 and General Order No. 5.[35]

We note that while the petition raises vital constitutional and statutory
questions concerning the power of the President to fix the compensation packages
of GOCCs and GFIs with possible implications on their officials and employees, the
same cannot infuse or give the petitioner locus standi under the transcendental
importance or paramount public interest doctrine. In Velarde v. Social Justice
Society,[36] we held that even if the Court could have exempted the case from the
stringent locus standi requirement, such heroic effort would be futile because the
transcendental issue could not be resolved any way, due to procedural infirmities
and shortcomings, as in the present case.[37] In other words, giving due course to
the present petition which is saddled with formal and procedural infirmities
explained above in this Resolution, cannot but be an exercise in futility that does not
merit the Courts liberality. As we emphasized in Lozano v. Nograles,[38] while the
Court has taken an increasingly liberal approach to the rule of locus standi,
evolving from the stringent requirements of personal injury to the broader
transcendental importance doctrine, such liberality is not to be abused.[39]

Finally, since the petitioner has failed to demonstrate a material and personal
interest in the issue in dispute, he cannot also be considered to have filed the present
case as a representative of PhilHealth. In this regard, we cannot ignore or excuse the
blatant failure of the petitioner to provide a Board Resolution or a Secretarys
Certificate from PhilHealth to act as its representative.

C. The petition has a defective

jurat.

The respondents claim that the petition should be dismissed for failing to
comply with Section 3, Rule 7 of the Rules of Civil Procedure, which requires the
party or the counsel representing him to sign the pleading and indicate an address
that should not be a post office box. The petition also allegedly violated the Supreme
Court En BancResolution dated November 12, 2001, requiring counsels to indicate
in their pleadings their Roll of Attorneys Number, their PTR Number and their IBP
Official Receipt or Lifetime Member Number; otherwise, the pleadings would be
considered unsigned and dismissible. Bar Matter No. 1922 likewise states that a
counsel should note down his MCLE Certificate of Compliance or Certificate of
Exemption in the pleading, but the petitioner had failed to do so.[40]

We do not see any violation of Section 3, Rule 7 of the Rules of Civil

Procedure as the petition bears the petitioners signature and office address. The
present suit was brought before this Court by the petitioner himself as a party
litigant and not through counsel. Therefore, the requirements under the Supreme
Court En Banc Resolution dated November 12, 2001 and Bar Matter No. 1922 do
not apply. In Bar Matter No. 1132, April 1, 2003, we clarified that a party who is not
a lawyer is not precluded from signing his own pleadings as this is allowed by the
Rules of Court; the purpose of requiring a counsel to indicate his IBP Number and
PTR Number is merely to protect the public from bogus lawyers. A similar
construction should be given to Bar Matter No. 1922, which requires lawyers to
indicate their MCLE Certificate of Compliance or Certificate of Exemption;
otherwise, the provision that allows parties to sign their own pleadings will be
negated.

However, the point raised by the respondents regarding the petitioners

defective jurat is correct. Indeed, A.M. No. 02-8-13-SC, dated February 19, 2008,
calls for a current identification document issued by an official agency bearing the
photograph and signature of the individual as competent evidence of
identity. Nevertheless, we hasten to clarify that the defective jurat in the
Verification/Certification of Non-Forum Shopping is not a fatal defect, as we held
in In-N-Out Burger, Inc. v. Sehwani, Incorporated.[41] The verification is only a
formal, not a jurisdictional, requirement that the Court may waive.

D. The petition has been mooted

by supervening events.

Because of the transitory nature of EO 7, it has been pointed out that the present case
has already been rendered moot by these supervening events: (1) the lapse on
December 31, 2010 of Section 10 of EO 7 that suspended the allowances and
bonuses of the directors and trustees of GOCCs and GFIs; and (2) the enactment of
R.A. No. 10149 amending the provisions in the charters of GOCCs and GFIs
empowering their board of directors/trustees to determine their own compensation
system, in favor of the grant of authority to the President to perform this act.

With the enactment of the GOCC Governance Act of 2011, the President is
now authorized to fix the compensation framework of GOCCs and GFIs. The
pertinent provisions read:
Section 5. Creation of the Governance Commission for Government-Owned
or -Controlled Corporations. There is hereby created an advisory, monitoring, and
oversight body with authority to formulate, implement and coordinate policies to
be known as the Governance Commission for Government-Owned or-Controlled
Corporations, hereinafter referred to as the GCG, which shall be attached to the
Office of the President. The GCG shall have the following powers and functions:

xxxx

h) Conduct compensation studies, develop and recommend to the President a

competitive compensation and remuneration system which shall attract and retain
talent, at the same time allowing the GOCC to be financially sound and sustainable;

xxxx

Section 8. Coverage of the Compensation and Position Classification System. The

GCG, after conducting a compensation study, shall develop a Compensation and
Position Classification System which shall apply to all officers and employees of
the GOCCs whether under the Salary Standardization Law or exempt therefrom
and shall consist of classes of positions grouped into such categories as the GCG
may determine, subject to approval of the President.

Section 9. Position Titles and Salary Grades. All positions in the Positions
Classification System, as determined by the GCG and as approved by the President,
shall be allocated to their proper position titles and salary grades in accordance with
an Index of Occupational Services, Position Titles and Salary Grades of the
Compensation and Position Classification System, which shall be prepared by the
GCG and approved by the President.

xxxx

[N]o GOCC shall be exempt from the coverage of the Compensation and Position
Classification System developed by the GCG under this Act.

As may be gleaned from these provisions, the new law amended R.A. No.
7875 and other laws that enabled certain GOCCs and GFIs to fix their own
compensation frameworks; the law now authorizes the President to fix the
compensation and position classification system for all GOCCs and GFIs, as well as
other entities covered by the law.This means that, the President can now reissue an
EO containing these same provisions without any legal constraints.

A moot case is one that ceases to present a justiciable controversy by virtue

of supervening events, so that a declaration thereon would be of no practical use or
value.[42][A]n action is considered moot when it no longer presents a justiciable
controversy because the issues involved have become academic or dead[,] or when
the matter in dispute has already been resolved and hence, one is not entitled to
judicial intervention unless the issue is likely to be raised again between the parties
x x x. Simply stated, there is nothing for the x x x court to resolve as [its]
determination x x x has been overtaken by subsequent events.[43]

This is the present situation here. Congress, thru R.A. No. 10149, has
expressly empowered the President to establish the compensation systems of
GOCCs and GFIs. For the Court to still rule upon the supposed unconstitutionality
of EO 7 will merely be an academic exercise. Any further discussion of the
constitutionality of EO 7 serves no useful purpose since such issue is moot in its
face in light of the enactment of R.A. No. 10149. In the words of the eminent
constitutional law expert, Fr. Joaquin Bernas, S.J., the Court normally [will not]
entertain a petition touching on an issue that has become moot because x x x there
would [be] no longer x x x a flesh and blood case for the Court to resolve.[44]

All told, in view of the supervening events rendering the petition moot, as well
as its patent formal and procedural infirmities, we no longer see any reason for the
Court to resolve the other issues raised in the certiorari petition.

WHEREFORE, premises considered, the petition is DISMISSED. No costs.

SO ORDERED.

ARTURO D. BRION
 Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice

PRESBITERO J. VELASCO, JR.

ANTONIO T. CARPIO
Associate Justice
Associate Justice

TERESITA J. LEONARDO-DE CASTRO

DIOSDADO M. PERALTA
Associate Justice
Associate Justice

(On Leave)

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

 Associate Justice Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice

(On leave)
MARIA LOURDES P. A. SERENO BIENVENIDO L. REYES
Associate Justice Associate Justice
 ESTELA M. PERLAS-BERNABE
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions
in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court.

RENATO C. CORONA
Chief Justice
STATUTORY CONSTRUCTION CASE DIGEST
Galicto vs Aquino III
667 SCRA 150 G.R. No. 193978
Promulgated on February 28, 2012

Facts:

President Benigno Simeon Aquino III exposed anomalies in the financial management of the
Metropolitan Waterworks Sewerage System, the National Power Corporation and the National Food
Authority.

Because of this, the Senate prompted to conduct legislative inquiries on the matter of activities
of GOCC and issued Resolution No. 17 s. 2010, urging the President to order the immediate suspension of
the unusually large and excessive allowances, bonuses, incentives and other perks of members of the
governing boards of GOCCs and government financial institutions (GFIs). President Aquino issued E.O 7
strengthening the supervision of compensation levels of GOCCs and GFIs by controlling the grant of
excessive salaries, allowances and other benefits.

However, petitioner Jelbert Galicto allegedly questions the constitutionality of E.O 7 in his
capacity as a lawyer and as an employee of PhilHealth Regional Office. As he allegedly stands to be
prejudiced by E.O 7 because it suspends or imposes a moratorium on the grant of salary increase and
other benefits granted to the GOCC and GFI officials. Moreover, he claims interest in making sure that
laws and orders by government officials are legally issued and implemented.

Issue: Whether or not petitioner Galicto has a locus standi in bringing the petition before the
Court.

Ruling:

No, the SC said that petitioner cannot claim legal stance because petitioner is simply concerned
about his entitlement to future salary increases.

A public officer has a vested right only to salaries already earned or accrued. Salary increases are
a mere expectancy volatile and dependent on various variables in nature.

His assertion of legal impediment under Section 9 of E.O 7 of any future increase in petitioners
compensation will only depend on usual factors considered by proper authorities was misleading and
incorrect due to the concept of injury as an element ofLocus standi. He only points out the denial of a
reasonable expectation which is not a subject of harm to go against the law.

His membership of Philippine Bar and a PhilHealth official does not suffice to clothe his legal
standing. Thus, Petitioner failed to satisfy irreducible minimum condition to trigger the exercise of judicial
power.
STAT CON PRINCIPLE OF LOCUS STANDI

Locus Standi is the ability of a party to demonstrate to the court sufficient connection to and harm from
the law or action challenged to support that party's participation in the case.
The party is directly subject to an adverse effect by the statute or action in question, and the harm
suffered will continue unless the court grants relief in the form of damages or a finding that the law
either does not apply to the party or that the law is void or can be nullified. This is called the "something
to lose" doctrine, in which the party has standing because they directly will be harmed by the conditions
for which they are asking the court for relief. A person cannot bring a suit challenging
the constitutionality of a law unless the plaintiff can demonstrate that he/she/it is or will "imminently"
be harmed by the law.

Otherwise, the court will rule that the plaintiff "lacks standing" to bring the suit, and will dismiss the
case without considering the merits of the claim of unconstitutionality. To have a court declare a law
unconstitutional, there must be a valid reason for the lawsuit. The party suing must have something to
lose in order to sue unless it has automatic standing by action of law.

EN BANC

[G.R. No. 138298. November 29, 2000]

RAOUL B. DEL MAR, petitioner, vs. PHILIPPINE AMUSEMENT AND

GAMING CORPORATION, BELLE JAI-ALAI CORPORATION,
FILIPINAS GAMING ENTERTAINMENT TOTALIZATOR
CORPORATION, respondents.

[G.R. No. 138982. November 29, 2000]

FEDERICO S. SANDOVAL II and MICHAEL T. DEFENSOR, petitioners,

vs. PHILIPPINE AMUSEMENT AND GAMING
CORPORATION, respondent.
JUAN MIGUEL ZUBIRI, intervenor.

DECISION
PUNO, J.:

These two consolidated petitions concern the issue of whether the franchise granted
to the Philippine Amusement and Gaming Corporation (PAGCOR) includes the right to
manage and operate jai-alai.
First, we scour the significant facts. The Philippine Amusement and Gaming
Corporation is a government-owned and controlled corporation organized and existing
under Presidential Decree No. 1869 which was enacted on July 11, 1983. Pursuant to
Sections 1 and 10 of P.D. No. 1869, respondent PAGCOR requested for legal advice
from the Secretary of Justice as to whether or not it is authorized by its Charter to operate
and manage jai-alai frontons in the country. In its Opinion No. 67, Series of 1996 dated
July 15, 1996, the Secretary of Justice opined that the authority of PAGCOR to operate
and maintain games of chance or gambling extends to jai-alai which is a form of sport
or game played for bets and that the Charter of PAGCOR amounts to a legislative
franchise for the purpose.[1] Similar favorable opinions were received by PAGCOR from
the Office of the Solicitor General per its letter dated June 3, 1996 and the Office of
the Government Corporate Counsel under its Opinion No. 150 dated June 14,
1996.[2] Thus, PAGCOR started the operation of jai-alai frontons.
On May 6, 1999, petitioner Raoul B. del Mar initially filed in G.R. No. 138298
a Petition for Prohibition to prevent respondent PAGCOR from managing and/or
operating the jai-alai or Basque pelota games, by itself or in agreement with Belle
Corporation, on the ground that the controverted act is patently illegal and devoid of any
basis either from the Constitution or PAGCORs own Charter.
However, on June 17, 1999, respondent PAGCOR entered into an Agreement with
private respondents Belle Jai Alai Corporation (BELLE) and Filipinas Gaming
Entertainment Totalizator Corporation (FILGAME) wherein it was agreed that BELLE will
make available to PAGCOR the required infrastructure facilities including the main
fronton, as well as provide the needed funding for jai-alai operations with no financial
outlay from PAGCOR, while PAGCOR handles the actual management and operation of
jai-alai.[3]
Thus, on August 10, 1999, petitioner Del Mar filed a Supplemental Petition for
Certiorari questioning the validity of said Agreement on the ground that PAGCOR is
without jurisdiction, legislative franchise, authority or power to enter into such Agreement
for the opening, establishment, operation, control and management of jai-alai games.
A little earlier, or on July 1, 1999, petitioners Federico S. Sandoval II and Michael T.
Defensor filed a Petition for Injunction, docketed as G.R. No. 138982, which seeks to
enjoin respondent PAGCOR from operating or otherwise managing the jai-alai or Basque
pelota games by itself or in joint venture with Belle Corporation, for being patently illegal,
having no basis in the law or the Constitution, and in usurpation of the authority that
properly pertains to the legislative branch of the government. In this case, a Petition in
Intervention was filed by Juan Miguel Zubiri alleging that the operation by PAGCOR of
jai-alai is illegal because it is not included in the scope of PAGCORs franchise which
covers only games of chance.
 Petitioners Raoul B. del Mar, Federico S. Sandoval II, Michael T. Defensor, and
intervenor Juan Miguel Zubiri, are suing as taxpayers and in their capacity as
members of the House of Representatives representing the First District of Cebu City,
the Lone Congressional District of Malabon-Navotas, the Third Congressional District of
Quezon City, and the Third Congressional District of Bukidnon, respectively.
The bedrock issues spawned by the petitions at bar are:
G.R. No. 138298
Petitioner Del Mar raises the following issues:
I. The respondent PAGCOR has no jurisdiction or legislative franchise or acted with
grave abuse of discretion, tantamount to lack or excess of jurisdiction, in arrogating
unto itself the authority or power to open, pursue, conduct, operate, control and
manage jai-alai game operations in the country.
II. x x x Respondent PAGCOR has equally no jurisdiction or authority x x x in executing
its agreement with co-respondents Belle and Filgame for the conduct and
management of jai-alai game operations, upon undue reliance on an opinion of the
Secretary of Justice.
III. x x x Respondent PAGCOR has equally no jurisdiction or authority x x x in entering
into a partnership, joint venture or business arrangement with its co-respondents
Belle and Filgame, through their agreement x x x. The Agreement was entered into
through manifest partiality and evident bad faith (Sec. 3 (e), RA 3019), thus manifestly
and grossly disadvantageous to the government [Anti-Graft and Corrupt Practices
Act, RA 3019, Sec. 3 (g)].
IV. x x x Respondent PAGCOR has equally no jurisdiction or authority x x x to award to
its co-respondents Belle and Filgame the right to avail of the tax benefits which, by
law, inures solely and exclusively to PAGCOR itself.
V. x x x Respondent PAGCOR has equally no jurisdiction or authority x x x to cause the
disbursement of funds for the illegal establishment, management and operation of jai-
alai game operations.
VI. x x x Respondent PAGCOR has equally no jurisdiction or authority x x x to award or
grant authority for the establishment, management and operation of off-fronton betting
stations or bookies.
VII. The respondent PAGCOR has no jurisdiction or authority x x x in awarding unto its
co-respondents Belle and Filgame, without public bidding, the subject agreement.
In defense, private respondents BELLE and FILGAME assert:
1. The petition states no cause of action and must be dismissed outright;
2. The petitioner has no cause of action against the respondents, he not being a real
party in interest;
3. The instant petition cannot be maintained as a taxpayer suit, there being no illegal
disbursement of public funds involved;
4. The instant petition is essentially an action for quo warranto and may only be
commenced by the Solicitor General;
 5. The operation of jai-alai is well within PAGCORs authority to operate and
maintain. PAGCORs franchise is intended to be wide in its coverage, the underlying
considerations being, that: (1) the franchise must be used to integrate all gambling
operations in one corporate entity (i.e. PAGCOR); and (2) it must be used to generate
funds for the government to support its social impact projects;
6. The agreement executed by, between and among PAGCOR, BJAC and FILGAME is
outside the coverage of existing laws requiring public bidding.
Substantially the same defenses were raised by respondent PAGCOR in its
Comment.
G.R. No. 138982
Petitioners contend that:
I. The operation of jai-alai games by PAGCOR is illegal in that:
1) the franchise of PAGCOR does not include the operation of jai-alai since jai-alai is
a prohibited activity under the Revised Penal Code, as amended by P.D. No. 1602
which is otherwise known as the Anti-Gambling Law;
2) jai-alai is not a game of chance and therefore cannot be the subject of a PAGCOR
franchise.
II. A franchise is a special privilege that should be construed strictly against the grantee.
III. To allow PAGCOR to operate jai-alai under its charter is tantamount to a license to
PAGCOR to legalize and operate any gambling activity.
In its Comment, respondent PAGCOR avers that:
1. An action for injunction is not among the cases or proceedings originally cognizable
by the Honorable Supreme Court, pursuant to Section 1, Rule 56 of the 1997 Rules
of Civil Procedure.
2. Assuming, arguendo, the Honorable Supreme Court has jurisdiction over the petition,
the petition should be dismissed for failure of petitioners to observe the doctrine on
hierarchy of courts.
3. x x x Petitioners have no legal standing to file a taxpayers suit based on their cause
of action nor are they the real parties-in-interest entitled to the avails of the suit.
4. Respondents franchise definitely includes the operation of jai-alai.
5. Petitioners have no right in esse to be entitled to a temporary restraining order and/or
to be protected by a writ of preliminary injunction.
The Solicitor General claims that the petition, which is actually an action for quo
warranto under Rule 66 of the Rules of Court, against an alleged usurpation by PAGCOR
of a franchise to operate jai alai, should be dismissed outright because only the Solicitor
General or public prosecutor can file the same; that P.D. No. 1869, the Charter of
PAGCOR, authorizes PAGCOR to regulate and operate games of chance and skill which
include jai-alai; and that P.D. No. 1602 did not outlaw jai-alai but merely provided for stiffer
penalties to illegal or unauthorized activities related to jai-alai and other forms of
gambling.
 We shall first rule on the important procedural issues raised by the respondents.
Respondents in G.R. No. 138982 contend that the Court has no jurisdiction to take
original cognizance of a petition for injunction because it is not one of those actions
specifically mentioned in Section 1 of Rule 56 of the 1997 Rules of Civil
Procedure. Moreover, they urge that the petition should be dismissed for failure of
petitioners to observe the doctrine on hierarchy of courts.
It is axiomatic that what determines the nature of an action and hence, the jurisdiction
of the court, are the allegations of the pleading and the character of the relief sought. [4] A
cursory perusal of the petition filed in G.R. No. 138982 will show that it is actually one for
Prohibition under Section 2 of Rule 65 for it seeks to prevent PAGCOR from managing,
maintaining and operating jai-alai games. Even assuming, arguendo, that it is an action for
injunction, this Court has the discretionary power to take cognizance of the petition at bar
if compelling reasons, or the nature and importance of the issues raised, warrant the
immediate exercise of its jurisdiction.[5] It cannot be gainsaid that the issues raised in the
present petitions have generated an oasis of concern, even days of disquiet in view of the
public interest at stake. In Tano, et al. vs. Socrates, et al.,[6] this Court did not hesitate to
treat a petition for certiorari and injunction as a special civil action for certiorari and
prohibition to resolve an issue of far-reaching impact to our people. This is in consonance
with our case law now accorded near religious reverence that rules of procedure are but
tools designed to facilitate the attainment of justice such that when its rigid application
tends to frustrate rather than promote substantial justice, this Court has the duty to
suspend their operation.[7]
Respondents also assail the locus standi or the standing of petitioners to file the
petitions at bar as taxpayers and as legislators. First, they allege that petitioners have no
legal standing to file a taxpayers suit because the operation of jai-alai does not involve
the disbursement of public funds.
Respondents' stance is not without oven ready legal support. A party suing as a
taxpayer must specifically prove that he has sufficient interest in preventing the illegal
expenditure of money raised by taxation.[8] In essence, taxpayers are allowed to sue
where there is a claim of illegal disbursement of public funds, [9] or that public money is
being deflected to any improper purpose,[10] or where petitioners seek to restrain
respondent from wasting public funds through the enforcement of an invalid or
unconstitutional law.[11]
In the petitions at bar, the Agreement entered into between PAGCOR and private
respondents BELLE and FILGAME will show that all financial outlay or capital expenditure
for the operation of jai-alai games shall be provided for by the latter. Thus, the Agreement
provides, among others, that: PAGCOR shall manage, operate and control the jai-alai
operation at no cost or financial risk to it (Sec. 1[A][1]); BELLE shall provide funds, at no
cost to PAGCOR, for all capital expenditures (Sec. 1[B][1]); BELLE shall make available
to PAGCOR, at no cost to PAGCOR, the use of the integrated nationwide network of on-
line computerized systems (Sec. 1[B][2]); FILGAME shall make available for use of
PAGCOR on a rent-free basis the jai-alai fronton facilities (Sec. 1 [C][1]); BELLE &
FILGAME jointly undertake to provide funds, at no cost to PAGCOR, for pre-operating
expenses and working capital (Sec. 1 [D][1]); and that BELLE & FILGAME will provide
PAGCOR with goodwill money in the amount of P 200 million (Sec. 1 [D][2]). In fine, the
record is barren of evidence that the operation and management of jai-alai by the
PAGCOR involves expenditure of public money.
Be that as it may, in line with the liberal policy of this Court on locus standi when a
case involves an issue of overarching significance to our society, [12] we find and so hold
that as members of the House of Representatives, petitioners have legal standing to file
the petitions at bar. In the instant cases, petitioners complain that the operation of jai-alai
constitutes an infringement by PAGCOR of the legislatures exclusive power to grant
franchise. To the extent the powers of Congress are impaired, so is the power of each
member thereof, since his office confers a right to participate in the exercise of the powers
of that institution, so petitioners contend. The contention commands our concurrence for
it is now settled that a member of the House of Representatives has standing to maintain
inviolate the prerogatives, powers and privileges vested by the Constitution in his
office.[13] As presciently stressed in the case of Kilosbayan, Inc., viz:

We find the instant petition to be of transcendental importance to the

public. The issues it raised are of paramount public interest and of a category
even higher than those involved in many of the aforecited cases. The
ramifications of such issues immeasurably affect the social, economic, and
moral well-being of the people even in the remotest barangays of the country
and the counter-productive and retrogressive effects of the envisioned on-line
lottery system are as staggering as the billions in pesos it is expected to
raise. The legal standing then of the petitioners deserves recognition x x x.

After hurdling the threshold procedural issues, we now come to the decisive
substantive issue of whether PAGCOR's legislative franchise includes the right to
manage and operate jai-alai.[14] The issue is of supreme significance for its incorrect
resolution can dangerously diminish the plenary legislative power of Congress, more
especially its exercise of police power to protect the morality of our people. After a
circumspect consideration of the clashing positions of the parties, we hold that the charter
of PAGCOR does not give it any franchise to operate and manage jai-alai.
FIRST. A franchise is a special privilege conferred upon a corporation or individual
by a government duly empowered legally to grant it.[15] It is a privilege of public
concern which cannot be exercised at will and pleasure, but should be reserved for
public control and administration, either by the government directly, or by public agents,
under such conditions and regulations as the government may impose on them in the
interest of the public.[16] A franchise thus emanates from a sovereign power[17] and the
grant is inherently a legislative power.It may, however, be derived indirectly from the
state through an agency to which the power has been clearly and validly delegated.[18] In
such cases, Congress prescribes the conditions on which the grant of a franchise may
be made.[19] Thus, the manner of granting the franchise, to whom it may be granted,
the mode of conducting the business, the character and quality of the service to be
rendered and the duty of the grantee to the public in exercising the franchise are
almost always defined in clear and unequivocal language. In the absence of these
defining terms, any claim to a legislative franchise to operate a game played for
bets and denounced as a menace to morality ought to be rejected.
SECOND. A historical study of the creation, growth and development of PAGCOR
will readily show that it was never given a legislative franchise to operate jai-alai.
(2.a) Before the creation of PAGCOR, a 25-year right to operate jai-alai in Manila
was given by President Marcos to the Philippine Jai-Alai and Amusement Corporation
then controlled by his in-laws, the Romualdez family. The franchise was granted on
October 16, 1975 thru P.D. No. 810 issued by President Marcos in the exercise of his
martial law powers. On that very date, the 25-year franchise of the prior grantee expired
and was not renewed. A few months before, President Marcos had issued P.D. No.
771 dated August 20, 1975, revoking the authority of local government units to issue jai-
alai franchises. By these acts, the former President exercised complete control of the
sovereign power to grant franchises.
(2.b) Almost one year and a half after granting the Philippine Jai-Alai and
Amusement Corporation a 25-year franchise to operate jai-alai in Manila, President
Marcos created PAGCOR on January 1, 1977 by issuing P.D. No. 1067-A. The decree
is entitled Creating the Philippine Amusements and Gaming Corporation, Defining Its
Powers and Functions, Providing Funds therefor and for Other Purposes. Its Declaration
of Policy[20] trumpeted the intent that PAGCOR was created to implement the policy of the
State to centralize and integrate all games of chance not heretofore authorized by
existing franchises or permitted by law x x x. One of its whereas clauses referred to
the need to prevent the proliferation ofillegal casinos or clubs conducting games of
chance x x x.[21] To achieve this objective, PAGCOR was empowered to establish and
maintain clubs, casinos, branches, agencies or subsidiaries, or other units anywhere in
the Philippines x x x.[22]
(2.c) On the same day after creating PAGCOR, President Marcos issued P.D. No.
1067-B granting PAGCOR x x x a Franchise to Establish, Operate, and
Maintain Gambling Casinoson Land or Water Within the Territorial Jurisdiction of the
Republic of the Philippines. Obviously, P.D. No. 1067-A which created the PAGCOR is
not a grant of franchise to operate the game of jai-alai. On the other hand, Section 1 of
P.D. No. 1067-B provides the nature and term of PAGCORS franchise to maintain
gambling casinos (not a franchise to operate jai-alai), viz:

SECTION 1. NATURE AND TERM OF FRANCHISE. Subject to the terms and

conditions established in this Decree, the Philippine Amusements and Gaming
Corporation is hereby granted for a period of twenty-five (25) years,
renewable for another 25 years, the right, privilege, and authority to operate
and maintain gambling casinos, clubs and other recreation or amusement
places, sports, gaming pools, i.e., basketball, football, etc., whether on land or
sea, within the territorial jurisdiction of the Republic of the Philippines.

Section 2 of the same decree spells out the scope of the PAGCOR franchise to
maintain gambling casinos (not a franchise to operate jai-alai), viz:
SEC. 2. SCOPE OF FRANCHISE. In addition to the right and privileges
granted it under Sec. 1, this Franchise shall entitle the franchise holder to do
and undertake the following:

(1) Enter into operators and/or management contracts with duly registered
and accredited company possessing the knowledge, skill, expertise and
facilities to insure the efficient operation of gambling casinos; Provided, That
the service fees of such management and/or operator companies whose
services may be retained by the franchise holder of this Franchise shall not in
the aggregate exceed ten (10%) percent of the gross income.

(2) Purchase foreign exchange that may be required for the importation of
equipment, facilities and other gambling paraphernalia indispensably needed
or useful to insure the successful operation of gambling casinos.

(3) Acquire the right of way, access to or thru public lands, public waters or
harbors, including the Manila Bay Area; such right to include, but not limited
to, the right to lease and/or purchase public lands, government reclaimed
lands, as well as land of private ownership or those leased from the
government. This right shall carry with it the privilege of the franchise holder to
utilize piers, quays, boat landings, and such other pertinent and related
facilities within these specified areas for use as landing, anchoring, or berthing
sites in connection with its authorized casino operations.

(4) Build or construct structures, buildings, coastways, piers, docks, as well as

any other form of land and berthing facilities for its floating casinos.

(5) To do and perform such other acts directly related to the efficient and
successful operation and conduct of games of chance in accordance with
existing laws and decrees.

(2.d) Still on the day after creating PAGCOR, President Marcos issued P.D. No.
1067-C amending P.D. Nos. 1067-A and B. The amendment provides that PAGCORs
franchise to maintain gambling casinos x x x shall become exclusive in character,
subject only to the exception of existing franchises and games of chance heretofore
permitted by law, upon the generation by the franchise holder of gross revenues
amounting to P1.2 billion and its contribution therefrom of the amount of P720 million as
the governments share.
(2.e) On June 2, 1978, President Marcos issued P.D. No. 1399 amending P.D. Nos.
1067-A and 1067-B. The amendments did not change the nature and scope of the
PAGCOR franchise to maintain gambling casinos. Rather, they referred to the
Composition of the Board of Directors,[23] Special Condition of
Franchise, Exemptions, and Other Conditions.[26]
[24]` [25]
 (2.f) On August 13, 1979, President Marcos issued P.D. No. 1632. Again, the
amendments did not change a comma on the nature and scope of PAGCORs
franchise to maintain gambling casinos. They related to the allocation of the 60%
share of the government where the host area is a city or municipality other than Metro
Manila,[27] and the manner of payment of franchise tax of PAGCOR.[28]
(2.g) On July 11, 1983, President Marcos issued P.D. No.
1869 entitled Consolidating and Amending P.D. Nos. 1067-A, 1067-B, 1067-C, 1399
and 1632 Relative to the Franchise and Power of the PAGCOR. As a consolidated
decree, it reiterated the nature and scope of PAGCORs existing franchise to
maintain gambling casinos (not a franchise to operate jai-alai), thus:

SEC. 10. Nature and term of franchise. Subject to the terms and conditions
established in this Decree, the Corporation is hereby granted for a period of
twenty-five (25) years, renewable for another twenty-five (25) years, the rights,
privilege and authority to operate and maintain gambling casinos, clubs, and
other recreation or amusement places, sports, gaming pools, i.e. basketball,
football, lotteries, etc., whether on land or sea, within the territorial jurisdiction
of the Republic of the Philippines.

SEC. 11. Scope of Franchise. In addition to the rights and privileges granted
it under the preceding Section, this Franchise shall entitle the corporation to
do and undertake the following:

(1) Enter into operating and/or management contracts with any registered and
accredited company possessing the knowledge, skill, expertise and facilities
to insure the efficient operation of gambling casinos; provided, that the
service fees of such management and/or operator companies whose services
may be retained by the Corporation shall not in the aggregate exceed ten
(10%) percent of the gross income;

(2) Purchase foreign exchange that may be required for the importation of
equipment, facilities and other gambling paraphernalia indispensably needed
or useful to insure the successful operation of gambling casinos;

(3) Acquire the right of way or access to or thru public land, public waters or
harbors, including the Manila Bay Area; such right shall include, but not be
limited to, the right to lease and/or purchase public lands, government
reclaimed lands, as well as lands of private ownership or those leased from
the Government. This right shall carry with it the privilege of the Corporation to
utilize piers, quays, boat landings, and such other pertinent and related
facilities within these specified areas for use as landing, anchoring or berthing
sites in connection with its authorized casino operations;
(4) Build or construct structures, buildings, castways, piers, decks, as well as
any other form of landing and boarding facilities for its floating casinos; and

(5) To do and perform such other acts directly related to the efficient and
successful operation and conduct of games of chance in accordance with
existing laws and decrees.

(2.h) Then came the 1986 EDSA revolution and the end of the Marcos regime. On
May 8, 1987, President Corazon Aquino issued Executive Order No. 169 repealing
P.D. Nos. 810, 1124 and 1966 thus revoking the franchise of the Philippine Jai-Alai
and Amusement Corporation controlled by the Romualdezes to operate jai-alai in
Manila. PAGCORs franchise to operate gambling casinos was not revoked. Neither
was it given a franchise to operate jai-alai.
THIRD. In light of its legal history, we hold that PAGCOR cannot maintain that
section 10 of P.D. No. 1869 grants it a franchise to operate jai-alai. Section 10
provides:

SEC. 10 Nature and term of franchise. Subject to the terms and conditions
established in this Decree, the Corporation is hereby granted for a period of
twenty-five (25) years, renewable for another twenty-five (25) years, the rights,
privilege and authority to operate and maintain gambling casinos, clubs, and
other recreation or amusement places, sports, gaming pools, i.e., basketball,
football, lotteries, etc., whether on land or sea, within the territorial jurisdiction
of the Republic of the Philippines.

(3.a) P.D. No. 1869 is a mere consolidation of previous decrees dealing with
PAGCOR. PAGCOR cannot seek comfort in section 10 as it is not a new provision in
P.D. No. 1869 and, from the beginning of its history, was never meant to confer it with a
franchise to operate jai-alai. It is a reiteration of section 1 of P.D. No. 1067-B which
provides:

SECTION 1. Nature and Term of Franchise. Subject to the terms and

conditions established in this Decree, the Philippine Amusements and Gaming
Corporation is hereby granted for a period of twenty-five (25) years,
renewable for another 25 years, the right, privilege, and authority to operate
and maintain gambling casinos, clubs and other recreation or amusement
places, sports gaming pools, i.e., basketball, football, etc., whether on land or
sea, within the territorial jurisdiction of the Republic of the Philippines.

(3.b) Plainly, section 1 of P.D. No. 1067-B which was reenacted as section 10 of P.D.
No. 1869 is not a grant of legislative franchise to operate jai-alai. P.D. No. 1067-B is a
franchise to maintain gambling casinos alone. The two franchises are as different as day
and night and no alchemy of logic will efface their difference.
 (3.c) PAGCOR's stance becomes more sterile when we consider the law's intent. It
cannot be the intent of President Marcos to grant PAGCOR a franchise to operate
jai-alaibecause a year and a half before it was chartered, he issued P.D. No. 810 granting
Philippine Jai-Alai and Amusement Corporation a 25-year franchise to operate jai-alai in
Manila. This corporation is controlled by his in-laws, the Romualdezes.[29] To assure that
this Romualdez corporation would have no competition, President Marcos earlier revoked
the power of local governments to grant jai-alai franchises. Thus, PAGCORs stance that
P.D. No. 1067-B is its franchise to operate jai-alai, which would have competed with
the Romualdezes franchise, extends credulity to the limit. Indeed, P.D. No. 1067-A
which created PAGCOR made it crystal clear that it was to implement "the policy of the
State to centralize and integrate all games of chance not heretofore authorized by
existing franchises or permitted by law," which included the Philippine Jai-Alai and
Amusement Corporation.
(3.d) There can be no sliver of doubt that under P.D. No. 1869, PAGCORs franchise
is only to operate gambling casinos and not jai-alai. This conclusion is compelled by
a plain reading of its various provisions, viz:

"SECTION 1. Declaration of Policy. - It is hereby declared to be the policy of

the State to centralize and integrate all games of chance not heretofore
authorized by existing franchises or permitted by law in order to attain the
following objectives:

xxxxxx
(b) To establish and operate clubs and casinos, for amusement and recreation,
including sports, gaming pools (basketball, football, lotteries, etc.) and such other forms
of amusement and recreation including games of chance, which may be allowed by law
within the territorial jurisdiction of the Philippines and which will: x x x (3) minimize, if not
totally eradicate, the evils, malpractices and corruptions that are normally
prevalent in the conduct and operation of gambling clubs and casinos without
direct government involvement.
xxxxxx

TITLE IV GRANT OF FRANCHISE

SEC. 10. Nature and term of franchise. Subject to the terms and conditions
established in this Decree, the Corporation is hereby granted for a period of
twenty-five (25) years, renewable for another twenty-five (25) years,
the rights, privileges and authority to operate and maintain gambling
casinos, clubs, and other recreation or amusement places, sports, gaming
pools, i.e. basketball, football, lotteries, etc. whether on land or sea, within the
territorial jurisdiction of the Republic of the Philippines.
SEC. 11. Scope of Franchise. In addition to the rights and privileges granted it
under the preceding Section, this Franchise shall entitle the Corporation to do
and undertake the following:

(1) Enter into operating and/or management contracts with any registered and
accredited company possessing the knowledge, skill, expertise and
facilities to insure the efficient operation of gambling casinos; provided,
that the service fees of such management and/or operator companies whose
services may be retained by the Corporation shall not in the aggregate exceed
ten (10%) percent of the gross income;

(2) Purchase foreign exchange that may be required for the importation of
equipment, facilities and other gambling paraphernalia indispensably needed
or useful to insure the successful operation of gambling casinos;

(3) Acquire the right of way or access to or thru public land, public waters or
harbors x x x. This right shall carry with it the privilege of the Corporation to
utilize x x x such other pertinent and related facilities within these specified
areas x x x in connection with its authorized casino operations;

(4) Build or construct structures, building castways, piers, decks, as well as

any other form of landing and boarding facilities for its floating casinos;

xxxxxx
SEC. 13. Exemptions.

(1) Customs duties, taxes and other imposts on importations. All importations
of equipment, vehicles, automobiles, boats, ships, barges, aircraft and such
other gambling paraphernalia, including accessories or related facilities, for
the sole and exclusive use of the casinos, the proper and efficient
management and administration thereof, and such other clubs.Recreation or
amusement places to be established under and by virtue of this Franchise
shall be exempt from the payment of all kinds of customs duties, taxes and
other imposts, including all kinds of fees, levies, or charges of any kind or
nature, whether National or Local.

Vessels and/or accessory ferry boats imported or to be imported by any

corporation having existing contractual arrangements with the Corporation, for
the sole and exclusive use of the casino or to be used to service the
operations and requirements of the casino, shall likewise be totally exempt
from the payment of all customs duties, x x x.
(2) Income and other taxes. (a) x x x

(b) Others: The exemption herein granted for earnings derived from the
operations conducted under the franchise x x x shall inure to the benefit of
and extend to corporation(s) x x x with whom the Corporation or operator
has any contractual relationship in connection with the operations of the
casino(s) authorized to be conducted under this Franchise x x x.

(3) Dividend Income. x x x The dividend income shall not in such case be
considered as part of beneficiaries taxable income; provided, however, that
such dividend income shall be totally exempted from income or other forms of
taxes if invested within six (6) months from date the dividend income is
received, in the following:

(a) operation of the casino(s) or investments in any affiliate activity that will
ultimately redound to the benefit of the Corporation or any other corporation
with whom the Corporation has any existing arrangements in connection
with or related to the operations of the casino(s);

xxxxxx

(4) Utilization of Foreign Currencies. The Corporation shall have the right and
authority, solely and exclusively in connection with the operations of the
casino(s), to purchase, receive, exchange and disburse foreign exchange,
subject to the following terms and conditions:

(a) A specific area in the casino(s) or gaming pit shall be put up solely and
exclusively for players and patrons utilizing foreign currencies;

(b) The Corporation shall appoint and designate a duly accredited commercial
bank agent of the Central Bank, to handle, administer and manage the use of
foreign currencies in the casino(s);

(c) The Corporation shall provide an office at casino(s) for the employees of
the designated bank, agent of the Central Bank, where the Corporation will
maintain a dollar account which will be utilized exclusively for the above
purpose and the casino dollar treasury employees;

xxxxxx
(f) The disbursement, administration, management and recording of foreign
exchange currencies used in the casino(s) shall be carried out in
accordance with existing foreign exchange regulations x x x.

SEC. 14. Other Conditions.

(1) Place. The Corporation shall conduct the gambling activities or games of
chance on land or water within the territorial jurisdiction of the Republic of the
Philippines. When conducted on water, the Corporation shall have the right to
dock the floating casino(s) in any part of the Philippines where vessels/boats
are authorized to dock under the Customs and Maritime Laws.

(2) Time. Gambling activities may be held and conducted at anytime of the
day or night; provided, however, that in places where curfew hours are
observed, all players and personnel of gambling casinos shall remain
within the premises of the casinos.

(3) Persons allowed to play. x x x

(4) Persons not allowed to play. -

xxxxxx

From these are excepted the personnel employed by the casinos, special
guests, or those who at the discretion of the Management may be allowed to
stay in the premises.

TITLE VI EXEMPTION FROM CIVIL SERVICE LAW

SEC. 16. Exemption. All position in the Corporation, whether technical,

administrative, professional or managerial are exempt from the provisions of
the Civil Service Law, rules and regulations, and shall be governed only by the
personnel management policies set by the Board of Directors. All employees
of the casinos and related services shall be classified as Confidential
appointees.

TITLE VII TRANSITORY PROVISIONS

SEC. 17. Transitory Provisions. x x x

SEC. 18. Exemption from Labor Laws. No union or any form of association
shall be formed by all those working as employees of the casino or related
services whether directly or indirectly. For such purpose, all employees of
the casinos or related services shall be classified as confidential appointees
and their employment thereof, whether by the franchise holder, or the
operators, or the managers, shall be exempt from the provisions of the Labor
Code or any implementing rules and regulations thereof.

From its creation in 1977 and until 1999, PAGCOR never alleged that it has a
franchise to operate jai-alai. Twenty-two years is a long stretch of silence. It is
inexplicable why it never claimed its alleged franchise for so long a time which
could have allowed it to earn billions of pesos as additional income.
(3.e) To be sure, we need not resort to intellectual jujitsu to determine whether
PAGCOR has a franchise to operate jai-alai. It is easy to tell whether there is a legislative
grant or not.Known as the game of a thousand thrills, jai-alai is a different game, hence,
the terms and conditions imposed on a franchisee are spelled out in standard
form. A review of some laws and executive orders granting a franchise to operate jai-alai
will demonstrate these standard terms and conditions, viz:
(3.e.1) Commonwealth Act No. 485 (An Act to Permit Bets in the Game of Basque
Pelota) June 18, 1939

Be it enacted by the National Assembly of the Philippines:

SECTION 1. Any provision of existing law to the contrary notwithstanding, it

shall be permissible in the game of Basque pelota, a game of skill (including
the games of pala, raqueta, cestapunta, remonte and mano), in which
professional players participate, to make either direct bets or bets by means of
a totalizer; Provided, That no operator or maintainer of a Basque pelota court
shall collect as commission a fee in excess of twelve per centum on such
bets, or twelve per centum of the receipts of the totalizer, and of such per
centum three shall be paid to the Government of the Philippines, for
distribution in equal shares between the General Hospital and the Philippine
Anti-tuberculosis Society.

SEC. 2. Any person, company or corporation, that shall build a court for
Basque pelota games with bets within eighteen months from the date of the
approval of this Act, shall thereunder have the privilege to maintain and
operate the said court for a term of twenty-five years from the date in which
the first game with bets shall have taken place. At the expiration of the said
term of twenty-five years, the buildings and the land on which the court and
the stadium shall be established, shall become the property of the
Government of the Philippines, without payment.

SEC. 3. The location and design of the buildings that shall be used for the
same games of Basque pelota, shall have prior approval of the Bureau of
Public Works and the operator shall pay a license fee of five hundred pesos a
year to the city or municipality in which the establishment shall be situated, in
addition to the real-estate tax due on such real property.

SEC. 4. This Act shall take effect upon its approval.

ENACTED, without Executive approval, June 18, 1939.

(3.e.2) Executive Order No. 135 (Regulating the Establishment, Maintenance and
Operation of Frontons and Basque Pelota Games [Jai Alai]) May 4, 1948

By virtue of the powers vested in me by Commonwealth Act No. 601, entitled

An Act to regulate the establishment, maintenance and operation of places of
amusements in chartered cities, municipalities and municipal districts, the
following rules and regulations governing frontons and basque pelota games
are hereby promulgated:

SECTION 1. Definitions. Whenever used in this Order and unless the context
indicates a different meaning, the following terms shall bear the meaning
indicated herein:

(a) Basque pelota game shall include the pelota game with the use of pala,
raqueta, cesta punta, remonte and mano, in which professional players
participate.

(b) Fronton comprises the court where basque pelota games are played,
inlcuding the adjoining structures used in connection with such games, such
as the betting booths and galleries, totalizator equipment, and the
grandstands where the public is admitted in connection with such games.

(c) Pelotari is a professional player engaged in playing basque pelota.

(d) Professional player is one who plays for compensation.

SEC. 2. Supervision over the establishment and operation of frontons and

basque pelota games. Subject to the administrative control and supervision of
the Secretary of the Interior, city or municipal mayors shall exercise
supervision over the establishment, maintenance and operation of frontons
and basque pelota games within their respective territorial jurisdiction, as well
as over the officials and employees of such frontons and shall see to it that all
laws, orders and regulations relating to such establishments are duly
enforced. Subject to similar approval, they shall appoint such personnel as
may be needed in the discharge of their duties and fix their compensation
which shall be paid out of the allotment of one-half per centum (1/2%) out of
the total bets or wager funds set aside and made available for the purpose in
accordance with Section 19 hereof. The Secretary of the Interior shall have
the power to prohibit or allow the operation of such frontons on any day or
days, or modify their hour of operation and to prescribe additional rules and
regulations governing the same.

SEC. 3. Particular duties of city or municipal mayors regarding operation of

basque pelota games and frontons. In connection with their duty to enforce
the laws, orders, rules and regulations relating to frontons and basque pelota
games, the city or municipal mayor shall require that such frontons shall be
properly constructed and maintained in accordance with the provisions of
Commonwealth Act No. 485; shall see that the proper sanitary
accommodations are provided in the grandstands and other structures
comprising such frontons; and shall require that such frontons be provided
with a properly equipped clinic for the treatment of injuries to the pelotaris.

SEC. 4. Permits. In the absence of a legislative franchise, it shall be unlawful

for any person or entity to establish and/or operate frontons and conduct
basque pelota games without a permit issued by the corresponding city or
municipal mayor, with the approval of the provincial governor in the latter
case. Any permit issued hereunder shall be reported by the provincial
governor or city mayor, as the case may be, to the Secretary of the Interior.

SEC. 5. License fees. The following license fees shall be paid:

(a) For each basque pelota fronton, five hundred pesos (P500) annually, or
one hundred and twenty-five pesos (P125) quarterly.

(b) For pelotaris, judges or referees and superintendents (intendentes) of

basque pelota games, eighteen pesos (P18) each annually.

The above license fees shall accrue to the funds of the city or municipality
where the fronton is operated.

SEC. 6. Location. Except in the case of any basque pelota fronton licensed as
of December 8, 1941, no basque pelota fronton shall be maintained or
operated within a radius of 200 lineal meters from any city hall or municipal
building, provincial capitol building, national capitol building, public playa or
park, public school, church, hospital, athletic stadium, or any institution of
learning or charity.
SEC. 7. Buildings, sanitary and parking requirements. No permit or license for
the construction or operation of a basque pelota fronton shall be issued
without proper certificate of the provincial or city engineer and architect
certifying to the suitability and safety of the building and of the district or city
health officer certifying to the sanitary condition of said building. The city or
municipal mayor may, in his discretion and as circumstances may warrant,
require that the fronton be provided with sufficient space for parking so that
the public roads and highways be not used for such purposes.

SEC. 8. Protest and complaint. Any person who believes that any basque
pelota fronton is located or established in any place not authorized herein or is
being operated in violation of any provision of this order may file a protest or
complaint with the city or municipal mayor concerned, and after proper
investigation of such complaint the city or municipal mayor may take such
action as he may consider necessary in accordance with the provisions of
section 10 hereof. Any decision rendered on the matter by the city or
municipal mayor shall be appealable to the Secretary of the Interior.

SEC. 9. Persons prohibited admission. Persons under 16 years of age,

persons carrying firearms or deadly weapons of any description, except
government officials actually performing their official duties therein, intoxicated
persons, and persons of disorderly nature and conduct who are apt to disturb
peace and order, shall not be admitted or allowed in any basque pelota
fronton: Provided, That persons under 16 years of age may, when
accompanied by their parents or guardians, be admitted therein but in no case
shall such minors be allowed to bet.

SEC. 10. Gambling prohibited. No card games or any of the prohibited games
shall be permitted within the premises of any basque pelota fronton; and upon
satisfactory evidence that the operator or entity conducting the game has
tolerated the existence of any prohibited game within its premises, the city or
municipal mayor may take the necessary action in accordance with the
provisions of section 11 hereof.

SEC. 11. Revocation or suspension of permits and licenses. The city or

municipal mayor, subject to the approval of the Secretary of the Interior, may
suspend or revoke any license granted under this Order to any basque pelota
fronton or to any official or employee thereof, for violation of any of the rules
and regulations provided in this Order or those which said city or municipal
mayor may prescribe, or for any just cause. Such suspension or revocation
shall operate to forfeit to the city or municipality concerned all sums paid
therefor.
SEC. 12. Appeals. Any action taken by the city or municipal mayor under the
provisions of this Order shall stand, unless modified or revoked by the
Secretary of the Interior.

SEC. 13. Books, records and accounts. The city or municipal mayor, or his
duly authorized representative, shall have the power to inspect at all times the
books, records, and accounts of any basque pelota fronton. He may, in his
discretion and as the circumstances may warrant, require that the books and
financial or other statements of the person or entity operating the game be
kept in such manner as he may prescribe.

SEC. 14. Days and hours of operation. Except as may otherwise be provided
herein, basque pelota games with betting shall be allowed every day,
excepting Sundays, from 2 oclock p.m. to not later than 11 oclock p.m.

SEC. 15. Pelotaris, judges, referees, etc. shall be licensed. No person or

entity operating a basque pelota fronton, wherein games are played with
betting, shall employ any pelotari, judge or referee, superintendent of games
(intendente), or any other official whose duties are connected with the
operation or supervision of the games, unless such person has been duly
licensed by the city or municipal mayor concerned. Such license shall be
granted upon satisfactory proof that the applicant is in good health, know the
rules and usages of the game, and is a person of good moral character and of
undoubted honesty. In the case of pelotaris, such license shall be granted
only upon the further condition that they are able to play the game with
reasonable skill and with safety to themselves and to their opponents. The city
or municipal mayor may further require other reasonable qualifications for
applicants to a license, not otherwise provided herein. Such license shall be
obtained yearly.

SEC. 16. Installation of automatic electric totalizator. Any person or entity

operating a fronton wherein betting in any form is allowed shall install in its
premises within the period of one year from the date this Order takes effect,
an automatic electrically operated indicator system and ticket selling machine,
commonly known as totalizator, which shall clearly record each ticket
purchased on every player in any game, the total number of tickets sold on
each event, as well as the dividends that correspond to holders of winning
numbers. This requirement shall, however, not apply to double events or
forecast pools or to any betting made on the basis of a combination or
grouping of players until a totalizator that can register such bets has been
invented and placed on the market.
SEC. 17. Supervision over sale of betting tickets and payment of dividends.
For the purpose of verifying the accuracy of reports in connection with the sale
of betting tickets and the computation of dividends awarded to winners on
each event, as well as other statements with reference to the betting in the
games played, the city or municipal mayor shall assign such number of
auditing officers and checkers as may be necessary for the purpose. These
auditing officers and checkers shall be placed in the ticket selling booths,
dividend computation booths and such other parts of the fronton, where
betting tickets are sold and dividends computed. It shall be their duty to check
up and correct any irregularity or any erroneous report or computation that
may be made by officials of the fronton, in connection with the sale of tickets
and the payment of dividends.

SEC. 18. Wager tickets and dividends. The face value of the wager tickets for
any event shall not exceed P5 whether for win or place, or for any
combination or grouping of winning numbers. The face value of said tickets,
as the case may be, shall be the basis for the computation of the dividends
and such dividends shall be paid after eliminating fractions of ten centavos
(P0.10); for example: if the resulting dividend is P10.43, the dividend that shall
be paid will be only P10.40.

SEC. 19. Distribution of wager funds. The total wager funds or gross receipts
from the sale of the betting tickets shall be apportioned as follows: a
commission not exceeding ten and one-half per centum (10 %) on the total
bets on each game or event shall be set aside for the person or entity
operating the fronton and four and one-half per centum (4 %) of such bets
shall be covered into the National Treasury for disposition as may be
authorized by law or executive order; and the balance or eighty-five per
centum (85%) of the total bets shall be distributed in the form of dividends
among holders of win or place numbers or holders of the winning combination
or grouping of numbers, as the case may be: Provided, however, That of the
ten and one-half per centum (10 %) representing the commission of the
person or entity operating the fronton, an amount equivalent to one-half per
centum (1/2%) of the total bets or wager funds shall be set aside and made
available to cover the expenses of the personnel assigned to supervise the
operation of basque pelota games and frontons, including payment of salaries
of such personnel, purchase of necessary equipment and other sundry
expenses as may be authorized by competent authority.

SEC. 20. Supervision over the conduct of games; enforcement of rules and
regulations. The city or municipal mayor is authorized to place within the
premises of the fronton such number of inspectors and agents as may be
deemed necessary to supervise the conduct of the games to see that the
rules of the games are strictly enforced, and to carry out the provisions of this
Order as well as such other regulations as may hereafter be prescribed.

SEC. 21. Rules governing the games and personnel of the fronton. The rules
and regulations that have been adopted by any fronton to govern the
operation of its games and the behavior, duties and performance of the
officials and personnel connected therewith, such as pelotaris, judges,
referees or superintendents of games (intendentes) and others, shall be the
recognized rules and regulations of such fronton until the same are altered or
repealed by the Secretary of the Interior; and any fronton may introduce any
type or form of games or events, provided they are not contrary to the
provisions of this Order or any rule or regulation hereafter issued by the
Secretary of the Interior.

SEC. 22. Regulations governing pelotaris. Any rule or regulation adopted by

any established fronton governing the conduct or performance of pelotaris to
the contrary notwithstanding, the following regulations shall be observed:

(a) The pelotaris who are participating in the games shall not be allowed to
communicate, talk or make signs with any one in the public or with any official
or employee of the fronton during the games, except with the judges or
referees or the superintendent (intendente) in charge of the games;

(b) The program of games or events, as well as the line-up or order of playing
of the pelotaris in each event shall be determined by the superintendent of the
games (intendente), subject to the approval of the city or municipal mayor, or
his authorized representatives;

(c) Pelotaris shall be in good physical condition before participating in any

game and shall be laid off from playing at least two days in a week. Every
pelotari shall once a month secure a medical certificate from a government
physician to be designated by the city or municipal mayor concerned certifying
to his physical fitness to engage in the games; and

(d) The amount of dividends computed for any event shall not be posted
within the view of the pelotaris participating in the event until after the
termination of said event.

(3.e.3) Presidential Decree No. 810 (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) October 16, 1975
WHEREAS, by virtue of the provisions of Commonwealth Act Numbered 485
the franchise to operate and maintain a fronton for the Basque pelota and
similar games of skill in the City of Manila, shall expire on October, 1975
whereupon the ownership of the land, buildings and improvements used in the
said game will be transferred without payment to the government by operation
of law;

WHEREAS, there is a pressing need not only to further develop the game as
a sport and amusement for the general public but also to exploit its full
potential in support of the governments objectives and development
programs;

WHEREAS, Basque pelota is a game of international renown, the

maintenance and promotion of which will surely assist the tourism industry of
the country;

WHEREAS, the tourism appeal of the game will be enhanced only with the
governments support and inducement in developing the sport to a level at par
with international standards;

WHEREAS, once such tourism appeal is developed, the same will serve as a
stable and expanding base for revenue generation for the governments
development projects.

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the

Philippines, by virtue of the powers vested in me by the Constitution, hereby
decree as follows:

SECTION 1. Any provision of law to the contrary notwithstanding, there is

hereby granted to the Philippine Jai-Alai and Amusement Corporation, a
corporation duly organized and registered under the laws of the Philippines,
hereinafter called the grantee or its successors, for a period of twenty-five
years from the approval of this Act, extendable for another twenty-five years
without the necessity of another franchise, the right, privilege and authority to
construct, operate and maintain a court for Basque Pelota (including the
games of pala, raqueta, cestapunta, remonte and mano) within the Greater
Manila Area, establish branches thereof for booking purposes and hold or
conduct Basque pelota games therein with bettings either directly or by means
of electric and/or computerized totalizator.

The games to be conducted by the grantee shall be under the supervision of

the Games and Amusements Board, hereinafter referred to as the Board,
which shall enforce the laws, rules and regulations governing Basque pelota
as provided in Commonwealth Act numbered four hundred and eighty-five, as
amended, and all the officials of the game and pelotaris therein shall be duly
licensed as such by the Board.

SEC. 2. The grantee or its duly authorized agent may offer, take or arrange
bets within or outside the place, enclosure or court where the Basque pelota
games are held: Provided, That bets offered, taken or arranged outside the
place, enclosure or court where the games are held, shall be offered, taken or
arranged only in places duly licensed by the corporation; Provided, however,
That the same shall be subject to the supervision of the Board. No person
other than the grantee or its duly authorized agents shall take or arrange bets
on any pelotari or on the game, or maintain or use a totalizator or other
device, method or system to bet on any pelotari or on the game within or
without the place, enclosure or court where the games are held by the
grantee. Any violation of this section shall be punished by a fine of not more
than two thousand pesos or by imprisonment of not more than six months, or
both in the discretion of the Court. If the offender is a partnership, corporation,
or association, the criminal liability shall devolve upon its president, directors
or any other officials responsible for the violation.

SEC. 3. The grantee shall provide mechanical and/or computerized devices,

namely: a) electric totalizator; b) machine directly connected to a computer in
a display board, for the sale of tickets, including, those sold from the off-court
stations; c) modern sound system and loud speakers; d) facilities that bring
safety, security, comfort and convenience to the public; e) modern
intercommunication devices; and f) such other facilities, devices and
instruments for clean, honest and orderly Basque pelota games, within three
years from the approval of this Act.

The Board shall assign its auditors and/or inspectors to supervise and
regulate the placing of bets, proper computation of dividends and the
distribution of wager funds.

SEC. 4. The total wager fund or gross receipts from the sale of betting tickets
will be apportioned as follows: eighty-five per centum (85%) shall be
distributed in the form of dividends among the holders of win or place
numbers or holders of the winning combination or grouping of numbers as the
case may be. The remaining balance of fifteen per centum (15%) shall be
distributed as follows: eleven and one-half per centum (11 %) shall be set
aside as the commission fee of the grantee, and three and one-half per
centum (3 %) thereof shall be set aside and alloted to any special health,
educational, civic, cultural, charitable, social welfare, sports, and other similar
projects as may be directed by the President. The receipts from betting
corresponding to the fraction of ten centavos eliminated from the dividends
paid to the winning tickets, commonly known as breakage, shall also be set
aside for the above-named special projects.

SEC. 5. The provision of any existing law to the contrary notwithstanding, the
grantee is hereby authorized to hold Basque pelota games (including the
games of pala, raqueta, cestapunta, remonte and mano) on all days of the
week except Sundays and official holidays.

SEC. 6. The provisions of Commonwealth Act numbered four hundred and

eighty-five as amended, shall be deemed incorporated herein, provided that
the provisions of this Act shall take precedence over the provisions thereof
and all other laws, executive orders and regulations which are inconsistent
herewith.

SEC. 7. The grantee shall not lease, transfer, grant the usufruct of, sell or
assign this franchise permit, or the rights or privileges acquired thereunder to
any person, firm, company, corporation or other commercial or legal entity,
nor merge with any other person, company or corporation organized for the
same purpose, without the previous approval of the President of the
Philippines.

SEC. 8. For purposes of this franchise, the grantee is herein authorized to

make use of the existing fronton, stadium and facilities located along Taft
Avenue, City of Manila, belonging to the government by virtue of the
provisions of Commonwealth Act numbered four hundred and eighty-five.

It is abundantly clear from the aforequoted laws, executive orders and decrees
that the legislative practice is that a franchise to operate jai-alai is granted solely
for that purpose and the terms and conditions of the grant are unequivocably
defined by the grantor. Such express grant and its conditionalities protective of the
public interest are evidently wanting in P.D. No. 1869, the present Charter of
PAGCOR. Thus, while E.O. 135 and P.D. No. 810 provided for the apportionment of the
wager funds or gross receipts from the sale of betting tickets, as well as the distribution
of dividends among holders of win or place numbers or holders of the winning combination
or grouping of numbers, no such provisions can be found in P.D. No. 1869. Likewise,
while P.D. No. 810 describes where and how the games are to be conducted and bettings
to be made, and imposes a penalty in case of a violation thereof, such provisions are
absent in P.D. No. 1869.
In fine, P.D. No. 1869 does not have the standard marks of a law granting a
franchise to operate jai-alai as those found under P.D. No. 810 or E.O. 135. We
cannot blink away from the stubborn reality that P.D. No. 1869 deals with details
pertinent alone to the operation of gambling casinos. It prescribes the rules and
regulations concerning the operation of gambling casinos such as the place, time,
persons who are and are not entitled to play, tax exemptions, use of foreign exchange,
and the exemption of casino employees from the coverage of the Civil Service Law and
the Labor Code. The short point is that P.D. No. 1869 does not have the
usual provisions with regards to jai-alai. The logical inference is that PAGCOR was
not given a franchise to operate jai-alai frontons. There is no reason to resist the beguiling
rule that acts of incorporation, and statutes granting other franchises or special benefits
or privileges to corporations, are to be construed strictly against the corporations; and
whatever is not given in unequivocal terms is understood to be withheld. [30]
FOURTH. The tax treatment between jai-alai operations and gambling casinos are
distinct from each other. Letters of Instruction No. 1439 issued on November 2, 1984
directed the suspension of the imposition of the increased tax on winnings in horse races
and jai-alai under the old revenue code, to wit:

WHEREAS, the increased tax on winnings on horse races and jai-alai under
Presidential Decree 1959 has already affected the holding of horse races and
jai-alai games, resulting in government revenue loss and affecting the
livelihood of those dependent thereon;

WHEREAS, the manner of taxation applicable thereto is unique and its effects
and incidence are in no way similar to the taxes on casino operation or to any
shiftable tax;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the

Philippines, by virtue of the powers vested in me by the Constitution, do
hereby order and instruct the Minister of Finance, the Commissioner of the
Bureau of Internal Revenue, and the Chairman, Games & Amusements
Board, to suspend the implementation of the increased rate of tax winnings in
horse races and jai-alai games and collect instead the rate applicable prior to
the effectivity of PD 1959.

Similarly, under Republic Act No. 8424, or the Tax Reform Act of 1997, there is an
amusement tax imposed on operators of jai-alai (Section 125) and a stamp tax on jai-alai
tickets (Section 190). There is no corresponding imposition on gambling casinos. Well to
note, section 13 of P.D. No. 1869 grants to the franchise holder and casino operators tax
exemptions from the payment of customs duties and income tax, except a franchise tax
of five (5%) percent which shall be in lieu of all kinds of taxes, levies, fees or assessments
of any kind, nature or description, levied, established or collected by any municipal,
provincial, or national government authority. No similar exemptions have been extended
to operators of jai-alai frontons.
FIFTH. P.D. No. 1869, the present Charter of PAGCOR, is a consolidation of P.D.
Nos. 1067-A, 1067-B and 1067-C all issued on January 1, 1977. P.D. No. 1067-A created
the PAGCOR and defined its powers and functions; P.D. No. 1067-B granted to PAGCOR
a franchise to establish, operate, and maintain gambling casinos on land or water
within the territorial jurisdiction of the Republic of the Philippines; and P.D. No. 1067-C
granted PAGCOR the exclusive right, privilege and authority to operate and maintain
gambling casinos, subject only to the exception of existing franchises and games of
chance permitted by law.
Beyond debate, P.D. No. 1869 adopted substantially the provisions of said prior
decrees, with some additions which, however, have no bearing on the franchise
granted to PAGCOR to operate gambling casinos alone, such as the Affiliation
Provisions under Title III and the Transitory Provisions under Title VII. It also added the
term lotteries under Section 1 (b) on Declaration of Policy and Section 10 on the Nature
and Term of Franchise. It ought to follow that P.D. No. 1869 carries with it the same
legislative intent that infused P.D. Nos. 1067-A, 1067-B and 1067-C. To be sure, both
P.D. No. 1067-A and P.D. No. 1869 seek to enforce the same avowed policy of the State
to minimize, if not totally eradicate, the evils, malpractices and corruptions that normally
are found prevalent in the conduct and operation of gambling clubs and casinos without
direct government involvement. It did not address the moral malevolence of jai-alai
games and the need to contain it thru PAGCOR. We cannot deface this legislative
intent by holding that the grant to PAGCOR under P.D. Nos. 1067-A and 1067-B to
establish, operate, and maintain gambling casinos, has been enlarged, broadened or
expanded by P.D. No. 1869 so as to include a grant to operate jai-alai frontons. Then and
now, the intention was merely to grant PAGCOR a franchise to operate gambling casinos,
no more, no less.
SIXTH. Lest the idea gets lost in the shoals of our subconsciousness, let us not forget
that PAGCOR is engaged in business affected with public interest. The phrase affected
with public interest means that an industry is subject to control for the public good;[31] it has
been considered as the equivalent of subject to the exercise of the police
power.[32] Perforce, a legislative franchise to operate jai-alai is imbued with public
interest and involves an exercise of police power. The familiar rule is that laws
which grant the right to exercise a part of the police power of the state are to be
construed strictly and any doubt must be resolved against the grant. [33] The
legislature is regarded as the guardian of society, and therefore is not presumed
to disable itself or abandon the discharge of its duty. Thus, courts do not assume
that the legislature intended to part away with its power to regulate public
morals.[34] The presumption is influenced by constitutional considerations. Constitutions
are widely understood to withhold from legislatures any authority to bargain away their
police power[35] for the power to protect the public interest is beyond abnegation.
It is stressed that the case at bar does not involve a franchise to operate a public
utility (such as water, transportation, communication or electricity) the operation of which
undoubtedly redounds to the benefit of the general public. What is claimed is an alleged
legislative grant of a gambling franchise a franchise to operate jai-alai. A statute which
legalizes a gambling activity or business should be strictly construed and every
reasonable doubt must be resolved to limit the powers and rights claimed under its
authority.[36]
 The dissent would like to make capital of the fact that the cases of Stone vs.
Mississippi and Aicardi vs. Alabama are not on all fours to the cases at bar and, hence,
the rulings therein do not apply. The perceived incongruity is more apparent than real.
Stone[37] involves a contract entered into by the State of Mississippi with the plaintiffs
which allowed the latter to sell and dispose of certificates of subscription which would
entitle the holders thereof to such prizes as may be awarded to them, by the casting of
lots or by lot, chance or otherwise. The contract was entered into by plaintiffs pursuant to
their charter entitled An Act Incorporating the Mississippi Agricultural, Educational and
Manufacturing Aid Society which purportedly granted them the franchise to issue and sell
lottery tickets. However, the state constitution expressly prohibits the legislature from
authorizing any lottery or allowing the sale of lottery tickets. Mississippi law makes it
unlawful to conduct a lottery.
The question raised in Stone concerned the authority of the plaintiffs to exercise the
franchise or privilege of issuing and selling lottery tickets. This is essentially the issue
involved in the cases at bar, that is, whether PAGCORs charter includes the franchise to
operate jai-alai frontons. Moreover, even assuming arguendo that the facts in the cases
at bar are not identical, the principles of law laid down in Stone are illuminating. For one,
it was held in Stone that:

Experience has shown that the common forms of gambling are comparatively
innocuous when placed in contrast with the wide-spread pestilence of
lotteries. The former are confined to a few persons and places, but the latter
infests the whole community; it enters every dwelling; it reaches every class; it
preys upon the hard earnings of the poor; and it plunders the ignorant and
simple. x x x [38]

The verity that all species of gambling are pernicious prompted the Mississippi Court to
rule that the legislature cannot bargain away public health or public morals. We can take
judicial notice of the fact that jai-alai frontons have mushroomed in every nook and corner
of the country. They are accessible to everyone and they specially mangle the morals of
the marginalized sector of society. It cannot be gainsaid that there is but a miniscule of a
difference between jai-alai and lottery with respect to the evils sought to be prevented.
In the case of Aicardi vs. Alabama, Moses & Co. was granted a legislative franchise
to carry on gaming in the form specified therein, and its agent, Antonio Aicardi, was
indicted for keeping a gaming table. In ascertaining whether the scope of the companys
franchise included the right to keep a gaming table, the Court there held that such an Act
should be construed strictly. Every reasonable doubt should be so resolved as to limit the
powers and rights claimed under its authority. Implications and intendments should have
no place except as they are inevitable from the language or the context.
The view expressed in the dissent that the aforequoted ruling was taken out of context
is perched on the premise that PAGCORs franchise is couched in a language that is
broad enough to cover the operations of jai-alai. This view begs the question for as shown
in our disquisition, PAGCOR's franchise is restricted only to the operation of gambling
casinos. Aicardisupports the thesis that a gambling franchise should be strictly construed
due to its ill-effects on public order and morals.
SEVENTH. The dissent also insists that the legislative intent must be sought first of
all in the language of the statute itself. In applying a literal interpretation of the provision
under Section 11 of P.D. 1869 that x x x the Corporation is hereby granted x x x the rights,
privileges, and authority to operate and maintain gambling casinos, clubs, and other
recreation or amusement places, sports, gaming pools, i.e., basketball, football, lotteries,
etc. x x x, it contends that the extent and nature of PAGCORs franchise is so broad that
literally all kinds of sports and gaming pools, including jai-alai, are covered therein. It
concluded that since under Section 11 of P.D. No. 1869, games of skill like basketball
and football have been lumped together with the word lotteries just before the word etc.
and after the words gaming pools, it may be deduced from the wording of the law that
when bets or stakes are made in connection with the games of skill, they may be classified
as games of chance under the coverage of PAGCORs franchise.
We reject this simplistic reading of the law considering the social, moral and public
policy implications embedded in the cases at bar. The plain meaning rule used in the
dissent rests on the assumption that there is no ambiguity or obscurity in the language of
the law. The fact, however, that the statute admits of different interpretations is the best
evidence that the statute is vague and ambiguous. [39] It is widely acknowledged that a
statute is ambiguous when it is capable of being understood by reasonably well-informed
persons in either of two or more senses.[40] In the cases at bar, it is difficult to see how a
literal reading of the statutory text would unerringly reveal the legislative intent. To be
sure, the term jai-alai was never used and is nowhere to be found in the law. The
conclusion that it is included in the franchise granted to PAGCOR cannot be based on a
mere cursory perusal of and a blind reliance on the ordinary and plain meaning of the
statutory terms used such as gaming pools and lotteries. Sutherland tells us that a statute
is ambiguous, and so open to explanation by extrinsic aids, not only when its abstract
meaning or the connotation of its terms is uncertain, but also when it is uncertain in its
application to, or effect upon, the fact-situation of the case at bar.[41]
Similarly, the contention in the dissent that :

x x x Even if the Court is fully persuaded that the legislature really meant and
intended something different from what it enacted, and that the failure to
convey the real meaning was due to inadvertence or mistake in the use of the
language, yet, if the words chosen by the legislature are not obscure or
ambiguous, but convey a precise and sensible meaning (excluding the case of
obvious clerical errors or elliptical forms of expression), then the Court must
take the law as it finds it, and give it its literal interpretation, without being
influenced by the probable legislative meaning lying at the back of the
words. In that event, the presumption that the legislature meant what it said,
though it be contrary to the fact, is conclusive.
cannot apply in the cases at bar considering that it has not been shown that the failure to
convey the true intention of the legislature is attributable to inadvertence or a mistake in
the language used.
EIGHTH. Finally, there is another reason why PAGCOR's claim to a legislative grant
of a franchise to operate jai-alai should be subjected to stricter scrutiny. The so-called
legislative grant to PAGCOR did not come from a real Congress. It came from
President Marcos who assumed legislative powers under martial law. The grant is not the
result of deliberations of the duly elected representatives of our people.
This is not to assail President Marcos legislative powers granted by Amendment No.
6 of the 1973 Constitution, as the dissent would put it. It is given that in the exercise of
his legislative power, President Marcos legally granted PAGCOR's franchise to operate
gambling casinos. The validity of this franchise to operate gambling casinos is not,
however, the issue in the cases at bar. The issue is whether this franchise to operate
gambling casinos includes the privilege to operate jai-alai. PAGCOR says it does. We
hold that it does not. PAGCOR's overarching claim should be given the strictest scrutiny
because it was granted by one man who governed when the country was under martial
law and whose governance was repudiated by our people in EDSA 1986. The reason for
this submission is rooted in the truth that PAGCOR's franchise was not granted by a real
Congress where the passage of a law requires a more rigorous process in terms of floor
deliberations and voting by members of both the House and the Senate. It is self-evident
that there is a need to be extra cautious in treating this alleged grant of a franchise
as a grant by the legislature, as a grant by the representatives of our people, for
plainly it is not. We now have a real Congress and it is best to let Congress resolve this
issue considering its policy ramifications on public order and morals.
In view of this ruling, we need not resolve the other issues raised by petitioners.
WHEREFORE, the petitions are GRANTED. Respondents PAGCOR, Belle Jai Alai
Corporation and Filipinas Gaming Entertainment Totalizator Corporation are ENJOINED
from managing, maintaining and operating jai-alai games, and from enforcing the
agreement entered into by them for that purpose.
SO ORDERED.
Melo, Panganiban, Pardo, Buena, Gonzaga-Reyes, and Ynares-Santiago
JJ., concur.
Davide, Jr., C.J., Vitug and De Leon Jr., JJ., see separate opinion.
Bellosillo, Kapunan, and Quisumbing, JJ., join the opinion of J. De Leon.
Mendoza, J., join in the separate opinion of Vitug, J.