Sepa and Dele

CONSTITUTIONAL LAW 1
SEPARATION OF POWERS
EN BANC
A.M. No. 88-7-1861-RTC October 5, 1988
IN RE: DESIGNATION OF JUDGE RODOLFO U. MANZANO AS MEMBER OF

THE ILOCOS NORTE PROVINCIAL COMMITTEE ON JUSTICE.
PADILLA, J.:
On 4 July 1988, Judge Rodolfo U. Manzano, Executive Judge, RTC, Bangui, Ilocos Norte, Branch 19, sent this Court a letter which reads:
Hon. Marcelo Fernan

Chief Justice of the Supreme Court
of the Philippines
Manila
Thru channels: Hon. Leo Medialdea

Court Administrator
Supreme Court of the Philippines
Sir:
By Executive Order RF6-04 issued on June 21, 1988 by the

Honorable Provincial Governor of Ilocos Norte, Hon. Rodolfo C.
Farinas, I was designated as a member of the Ilocos Norte
Provincial Committee on Justice created pursuant to Presidential
Executive Order No. 856 of 12 December 1986, as amended by
Executive Order No. 326 of June 1, 1988. In consonance with
Executive Order RF6-04, the Honorable Provincial Governor of
Ilocos Norte issued my appointment as a member of the Committee.
For your ready reference, I am enclosing herewith machine copies of
Executive Order RF6-04 and the appointment.
Before I may accept the appointment and enter in the discharge of

the powers and duties of the position as member of the Ilocos
(Norte) Provincial Committee on Justice, may I have the honor to
request for the issuance by the Honorable Supreme Court of a
Resolution, as follows:
(1) Authorizing me to accept the appointment and to as

assume and discharge the powers and duties attached
to the said position;
(2) Considering my membership in the Committee as

neither violative of the Independence of the Judiciary
nor a violation of Section 12, Article VIII, or of the
second paragraph of Section .7, Article IX (B), both of
the Constitution, and will not in any way amount to an
abandonment of my present position as Executive
Judge of Branch XIX, Regional Trial Court, First Judicial
Region, and as a member of the Judiciary; and
(3) Consider my membership in the said Committee as

part of the primary functions of an Executive Judge.
May I please be favored soon by your action on this request.

Very respectfully yours,
(Sgd) RODOLFO U. MANZANO

Judge
An examination of Executive Order No. 856, as amended, reveals that

Provincial/City Committees on Justice are created to insure the speedy
disposition of cases of detainees, particularly those involving the poor and
indigent ones, thus alleviating jail congestion and improving local jail conditions.
Among the functions of the Committee are—
3.3 Receive complaints against any apprehending officer, jail

warden, final or judge who may be found to have committed abuses
in the discharge of his duties and refer the same to proper authority
for appropriate action;
3.5 Recommend revision of any law or regulation which is believed

prejudicial to the proper administration of criminal justice.
It is evident that such Provincial/City Committees on Justice perform

administrative functions. Administrative functions are those which involve the
regulation and control over the conduct and affairs of individuals for; their own
welfare and the promulgation of rules and regulations to better carry out the
policy of the legislature or such as are devolved upon the administrative agency
by the organic law of its existence (Nasipit Integrated Arrastre and Stevedoring
Services Inc., vs. Tapucar, SP-07599-R, 29 September 1978, Blacks Law
Dictionary).
Furthermore, under Executive Order No. 326 amending Executive Order No.
856, it is provided that—
Section 6. Supervision.—The Provincial/City Committees on Justice

shall be under the supervision of the Secretary of justice Quarterly
accomplishment reports shall be submitted to the Office of the
Secretary of Justice.
Under the Constitution, the members of the Supreme Court and other courts
established by law shag not be designated to any agency performing quasi-
judicial or administrative functions (Section 12, Art. VIII, Constitution).
Considering that membership of Judge Manzano in the Ilocos Norte Provincial

Committee on Justice, which discharges a administrative functions, will be in
violation of the Constitution, the Court is constrained to deny his request.
Former Chief Justice Enrique M. Fernando in his concurring opinion in the case
of Garcia vs. Macaraig (39 SCRA 106) ably sets forth:
2. While the doctrine of separation of powers is a relative theory not

to be enforced with pedantic rigor, the practical demands of
government precluding its doctrinaire application, it cannot justify a
member of the judiciary being required to assume a position or
perform a duty non-judicial in character. That is implicit in the
principle. Otherwise there is a plain departure from its command.
The essence of the trust reposed in him is to decide. Only a higher
court, as was emphasized by Justice Barredo, can pass on his
actuation. He is not a subordinate of an executive or legislative
official, however eminent. It is indispensable that there be no
exception to the rigidity of such a norm if he is, as expected, to be
confined to the task of adjudication. Fidelity to his sworn

responsibility no less than the maintenance of respect for the
judiciary can be satisfied with nothing less.
This declaration does not mean that RTC Judges should adopt an attitude of
monastic insensibility or unbecoming indifference to Province/City Committee on
Justice. As incumbent RTC Judges, they form part of the structure of
government. Their integrity and performance in the adjudication of cases
contribute to the solidity of such structure. As public officials, they are trustees of
an orderly society. Even as non-members of Provincial/City Committees on
Justice, RTC judges should render assistance to said Committees to help
promote the laudable purposes for which they exist, but only when such
assistance may be reasonably incidental to the fulfillment of their judicial duties.
ACCORDINGLY, the aforesaid request of Judge Rodolfo U. Manzano is

DENIED.
SO ORDERED.
EN BANC
G.R. No. L-45081 July 15, 1936
JOSE A. ANGARA, petitioner, vs.

THE ELECTORAL COMMISSION,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 primæ 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, señor Presidente, consiste solamente en obviar

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

El Sr. ROXAS. Con mucho gusto.
El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la

mayoria, y otros tres a la minoria y tres a la Corte Suprema, ¿no cree Su
Señoria que esto equivale practicamente a dejar el asunto a los miembros
del Tribunal Supremo?
El Sr. ROXAS. Si y no. Creemos que si el tribunal o la Commission esta

constituido en esa forma, tanto los miembros de la mayoria como los de la
minoria asi como los miembros de la Corte Suprema consideraran la
cuestion sobre la base de sus meritos, sabiendo que el partidismo no es
suficiente para dar el triunfo.
El Sr. CONEJERO. ¿Cree Su Señoria que en un caso como ese,

podriamos hacer que tanto los de la mayoria como los de la minoria
prescindieran del partidismo?
El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo.
xxx xxx xxx
The amendment introduced by Delegates Labrador, Abordo and others seeking

to restore the power to decide contests relating to the election, returns and
qualifications of members of the National Assembly to the National Assembly
itself, was defeated by a vote of ninety-eight (98) against fifty-six (56).
In the same session of December 4, 1934, Delegate Cruz (C.) sought to amend
the draft by reducing the representation of the minority party and the Supreme
Court in the Electoral Commission to two members each, so as to accord more
representation to the majority party. The Convention rejected this amendment by
a vote of seventy-six (76) against forty-six (46), thus maintaining the non-partisan
character of the commission.
As approved on January 31, 1935, the draft was made to read as follows:
(6) All cases contesting the elections, returns and qualifications of the
Members of the National Assembly shall be judged by an Electoral
Commission, composed of three members elected by the party having the
largest number of votes in the National Assembly, three elected by the
members of the party having the second largest number of votes, and
three justices of the Supreme Court designated by the Chief Justice, the
Commission to be presided over by one of said justices.
The Style Committee to which the draft was submitted revised it as follows:
SEC. 4. There shall be an Electoral Commission composed of three

Justices of the Supreme Court designated by the Chief Justice, and of six
Members chosen by the National Assembly, three of whom shall be
nominated by the party having the largest number of 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.
FIRST DIVISION
G.R. No. L-38025 August 20, 1979
DANTE O. CASIBANG, petitioner, vs.

HONORABLE NARCISO A. AQUINO, Judge of the Court of First Instance of
Pangasinan, respondents.
MAKASIAR, J.:
Respondent Remigio P. Yu was proclaimed on November 9, 1971 as the elected

Mayor of Rosales, Pangasinan in the 1971 local elections, by a plurality of 501
votes over his only rival, herein petitioner, who seasonably filed on November 24,
1971 a protest against the election of the former with the Court of First Instance
of Pangasinan, on the grounds of (1) anomalies and irregularities in the
appreciation, counting and consideration of votes in specified electoral precincts;
(2) terrorism; (3) rampant vote buying; (4) open voting or balloting; and (5)
excessive campaign expenditures and other violations of the 1971 Election
Code.
Respondent Yu filed on November 29, 1971 his answer and counter-protest

which petitioner answered on December 10, 1971. However, respondent Yu
withdrew his counter-protest after waiving the opening and revision of the ballot
boxes specified therein.
Proceedings therein continued with respect to the election protest of petitioner

before the Court of First Instance of Pangasinan, Branch XIV, presided by
respondent Judge, who initially took cognizance of the same as it is
unquestionably a justiciable controversy.
In the meantime or on September 21, 1972, the incumbent President of the

Republic of the Philippines issued Proclamation No. 1081, placing the entire
country under Martial Law; and two months thereafter, more or less, or
specifically on November 29, 1972, the 1971 Constitutional Convention passed
and approved a Constitution to supplant the 1935 Constitution; and the same
was thereafter overwhelmingly ratified by the sovereign people of the Republic of
the Philippines on January 17, 1973; and on March 31, 1973, this Court declared
that "there is no further judicial obstacle to the new Constitution being considered
in force and effect" (Javellana vs. Executive Secretary, 50 SCRA 30 [1973]).
Thereafter or on October 10, 1973, at which time petitioner had already

completed presenting his evidence and in fact had rested his case, respondent
Yu moved to dismiss the election protest of petitioner on the ground that the trial
court had lost jurisdiction over the same in view of the effectivity of the 1973
Constitution by reason of which — principally) Section 9 of Article XVII
[Transitory Provisions] and Section 2 of Article XI — a political question has
intervened in the case. Respondent Yu contended that "... the provisions in the
1935 Constitution relative to all local governments have been superseded by the
1973 Constitution. Therefore, all local government should adhere to our
parliamentary form of government. This is clear in the New Constitution under its
Article XI." He further submitted that local elective officials (including mayors)
have no more four-year term of office. They are only in office at the pleasure of
the appointing power embodied in the New Constitution, and under Section 9 of
Article XVII.
Petitioner vigorously opposed the motion to dismiss, and, relying mainly on

Sections 7 and 8 of Article XVII (Transitory Provisions) of the New Constitution
and G.O. No. 3, contended that the New Constitution did not divest the Court of
First Instance of its jurisdiction to hear and decide election protests pending
before them at the time of its ratification and effectivity; that the ratification of the
New Constitution and its effectivity did not automatically abolish the office and
position of municipal mayor nor has it automatically cut short the tenure of the
office, so as to render the issue as to who is the lawfully elected candidate to
said office or position moot and academic; that election protests involve public
interest such that the same must be heard until terminated and may not be
dismissed on mere speculation that the office involved may have been abolished,
modified or reorganized; and that the motion to dismiss was filed manifestly for
delay.
Respondent Yu replied pointing out, among others, that petitioner failed to refute
the issue of political question; and reiterated his stand, expanding his arguments
on the political question, thus:
It is an undeniable fact that this case has its source from the 1971
elections for municipal mayoralty. Unsatisfied with the counting of
votes held by the Board of Canvassers, the herein protestant filed
this present case. And before the termination of the same and
pending trial, the Filipino people in the exercise of their free will and
sovereign capacity approved a NEW CONSTITUTION, thus a NEW
FORM OF GOVERNMENT-PARLIAMENTARY IN FORM was
enforced. We find this provision under Article XI of the New
Constitution, which provides:
SEC. 2. The National Assembly shall enact a local

government code which may not thereafter be amended
except by a majority vote of all its members, defining a
more responsive and accountable local government
structure with an effective system of recall, allocating
among the different local government units their powers,

responsibilities, and resources, and providing for the
qualifications, election and removal, term, salaries,
powers, functions, and duties of local officials, and all
other matters relating to the organization and operation
of the local units. However, any change in the existing
form of local government shall not take effect until
ratified by a majority of the votes cast in a plebiscite
called for the purpose.
It is respectfully submitted that the contention of the protestant to the

effect that the New Constitution "shows that the office of the
Municipal Mayor has not been abolished ... ," is not ACCURATE.
Otherwise, the provisions of Section 9 of Article XVII, is
meaningless.
All officials and employees in the existing Government

of the Republic shall continue in office until otherwise
provided by law or decreed by the incumbent President
of the Philippines, ...
In the above-quoted provision is the protection of the officials and

employees working in our government, otherwise, by the force of the
New Constitution they are all out of the government offices. In fact,
in the case above-cited (Javellana) we are all performing our duties
in accordance with the New Constitution.
Therefore, election cases of the 1935 Constitution being interwoven

in the political complexion of our new Constitution should be
dismissed because only those incumbent official and employees
existing in the new government are protected by the transitional
provisions of the New Fundamental Law of the Land. The protestant,
we respectfully submit, is not covered by the provisions of Section 9
Article XVII of the Constitution. And in case he will win in this present
case he has no right to hold the position of mayor of the town of
Rosales, Pangasinan, because he was not then an official of the
government at the time the New Constitution was approved by the
Filipino People. His right if proclaimed a winner is derived from the
1935 Constitution which is changed by the Filipino people.
On December 18, 1973, the trial court, presided by respondent Judge, sustained
the political question theory of respondent Yu and ordered the dismissal of the
electoral protest. Thus:
There is no dispute that the Filipino people have accepted and

submitted to a new Constitution to replace the 1935 Constitution,
and that we are now living under its aegis and protection. ...
xxx xxx xxx
Under Section 9, Article XVII, of the new Constitution, above-quoted,

only those officials and employees of the existing Government of the
Republic of the Philippines like the protestee herein, are given
protection and are authorized to continue in office at the pleasure of
the incumbent President of the Philippines, while under Section 2 of
Article XI of the new Constitution, also above-quoted, the intention of
completely revamp the whole local government structure, providing
for different qualifications, election and removal, term, salaries,
powers, functions, and duties, is very clear. These present questions

of policy, the necessity and expediency of which are outside the
range of judicial review. With respect to the fate of incumbent oficials
and employees in the existing Government of the Republic of the
Philippines, as well as to the qualifications, election and removal,
term of office, salaries, and powers of all local officials under the
parliamentary form of government — these have been entrusted or
delegated by the sovereign people or has reserved it to be settled by
the incumbent Chief Executive or by the National Assembly with full
discretionary authority therefor. As if to supplement these delegated
powers, the people have also decreed in a referendum the
suspension of all elections. Thus, in the United States, questions
relating to what persons or organizations constituted the lawful
government of a state of the Union (Luther vs. Borden, 7 How. 1, 12,
L. Ed 58), and those relating to the political status of a state
(Highland Farms Dairy vs. Agnew, 57 S. et 549, 300 U.S. 608, 81
L.ed 835), have been held to be political and for the judiciary to
determine.
To the mind of the Court, therefore, the ratification and effectivity of

the new Constitution has tainted this case with a political complexion
above and beyond the power of judicial review. As fittingly
commented by Mr. Justice Antonio in a separate opinion in the
Javellana, et al. cases, 69 0. G. No. 36, September 3, 1973, p. 8008:
The essentially political nature of the question is at once

manifest by understanding that in the final analysis,
what is assailed is not merely the validity of
Proclamation No. 1102 of the President, which is merely
declaratory of the fact of the approval or ratification, but
the legitimacy of the government. It is addressed more
to the frame-work and political character of this
government which now functions under the new
Charter. It seeks to nullify a Constitution that is already
effective. In other words, where a complete change in
the fundamental law has been effected through political
action, the Court whose existence is affected by such a
change is, in the words of Mr. Meville Fuller Weston
"precluded from passing upon the fact of change by a
logical difficulty which is not to be surmounted as the
change relates to the existence of a prior point in the
Court's "chain of title" to its authority and "does not
relate merely to a question of the horizontal distribution
of powers." It involves a matter which 'the sovereign has
entrusted to the so-called political departments or has
reserved to be settled by its own extra-governmental
action." The present Government functions under the
new Constitution which has become effective through
political action. Judicial power presupposes an
established government and an effective constitution. If
it decides at all as a court, it necessarily affirms the
existence and authority of the Government under which
it is exercising judicial power.
The Court is not unaware of provisions of the new Constitution,

particularly Sections 7 and 8, Article XVII (Transitory Provisions)
decreeing that all existing laws not inconsistent with the new
Constitution shall remain operative until amended, modified, or

repealed by the National Assembly, and that all courts existing at the
time of the ratification of the said new Constitution shall continue and
exercise their jurisdiction until otherwise provided by law in
accordance with the new Constitution, and all cases pending in said
courts shall be heard, tried and determined under the laws then in
force. Again, to the mind of the Court, these refer to matters raised in
the enforcement of existing laws or in the invocation of a court's
jurisdiction which have not been "entrusted to the so-called political
department or has reserved to be settled by its own extra
governmental action.
Hence, this petition.
We reverse.
The thrust of the aforesaid political question theory of respondent Yu is that the
1973 Constitution, through Section 9 of Article XVII thereof, protected only those
incumbents, like him, at the time of its ratification and effectivity and are the only
ones authorized to continue in office and their term of office as extended now
depends on the pleasure of, as the same has been entrusted or committed to,
the incumbent President of the Philippines or the Legislative Department; and
that Section 2 of Article XI thereof entrusted to the National Assembly the revamp
of the entire local government structure by the enactment of a local government
code, thus presenting a question of policy, the necessity and expediency of
which are outside the range of judicial review. In short, for the respondent Judge
to still continue assuming jurisdiction over the pending election protest of
petitioner is for him to take cognizance of a question or policy "in regard to which
full discretionary authority has been delegated to the Legislative or Executive
branch of the government."
There is an imperative need to re-state pronouncements of this Court on the new

Constitution which are decisive in the resolution of the political question theory of
respondent Yu.
WE ruled:
1. That Section 9 of Article XVII of the 1973 Constitution did not render moot and
academic pending election protest cases (Santos vs. Castañeda, 65 SCRA 114
[1975]; Euipilag vs. Araula, 60 SCRA 211 [1974]; Nunez vs. Averia, 57 SCRA
726 [1974]; Parades vs. Abad, L-36927, Sunga vs. Mosueda, L-37715, Valley vs.
Caro, L-38331, 56 SCRA 522, [1974]).
2. That "the constitutional grant of privilege to continue in office, made by the new
Constitution for the benefit of persons who were incumbent officials or employees
of the Government when the new Constitution took effect, cannot be fairly
construed as indiscriminately encompassing every person who at the time
happened to be performing the duties of an elective office, albeit under protest or
contest" and that "subject to the constraints specifically mentioned in Section 9,
Article XVII of the Transitory Provisions, it neither was, nor could have been the
intention of the framers of our new fundamental law to disregard and shunt aside
the statutory right of a condidate for elective position who, within the time-frame
prescribed in the Election Code of 1971, commenced proceedings beamed
mainly at the proper determination in a judicial forum of a proclaimed candidate-
elect's right to the contested office."' (Santos vs. Castañeda, supra); and We
rationalized that "the Constitutional Convention could not have intended, as in
fact it .did not intend, to shielf or protect those who had been unduly elected. To
hold that the right of the herein private respondents to the respective offices
which they are now holding, may no longer be subject to question, would be
tantamount to giving a stamp of approval to what could have been an election
victory characterized by fraud, threats, intimidation, vote buying, or other forms of
irregularities prohibited by the Election Code to preserve inviolate the sanctity of
the ballot." (Parades, Sunga and Valley cases, supra).
3. That "the right of the private respondents (protestees) to continue in office

indefinitely arose not only by virtue of Section 9 of Article XVII of the New
Constitution but principally from their having been proclaimed elected to their
respective positions as a result of the November 8, 1971 elections. Therefore, if
in fact and in law, they were not duly elected to their respective positions and
consequently, have no right to hold the same, perform their functions, enjoy their
privileges and emoluments, then certainly, they should not be allowed to enjoy
the indefinite term of office given to them by said constitutional provision"
(Parades, Sunga and Valley cases, supra).
4. That "until a subsequent law or presidential decree provides otherwise, the

right of respondent (protestee) to continue as mayor rests on the legality of his
election which has been protested by herein petitioner. Should the court decide
adversely against him the electoral protest, respondent (protestee) would cease
to be mayor even before a law or presidential decree terminates his tenure of
office pursuant to said Section 9 of Article XVII of the 1973 Constitution"
(Euipilag, supra).
5. That "there is a difference between the 'term' of office and the 'right' to hold an
office. A 'term' of office is the period during winch an elected officer or appointee
is entitled to hold office, perform its functions and enjoy its privileges and
emoluments. A 'right' to hold a public office is the just and legal claim to hold and
enjoy the powers and responsibilities of the office. In other words, the 'term'
refers to the period, duration of length of time during which the occupant of an
office is .entitled to stay therein whether such period be definite or indefinite.
Hence, although Section 9, Article XVII of the New Constitution made the term of
the petitioners indefinite, it did not foreclose any challenge by the herein
petitioners, in an election protest, of the 'right' of the private respondents to
continue holding their respective office. What has been directly affected by said
constitutional provision is the 'term' to the office, although the 'right' of the
incumbent to an office which he is legally holding is co-extensive with the 'term'
thereof," and that "it is erroneous to conclude that under Section 9, Article XVII of
the New Constitution, the term of office of the private respondents expired, and
that they are now holding their respective offices under a new term. We are of
the opinion that they hold their respective offices still under the term to which
they have been elected, although the same is now indefinite" (Parades, Sunga
and Valley cases, supra).
6. That the New Constitution recognized the continuing jurisdiction of courts of

first instance to hear, try and decide election protests: "Section 7 of Article XVII of
the New Constitution provides that 'all existing laws not inconsistent with this
Constitution shall remain operative until amended, modified or repealed by the
National Assembly. 'And there has been no amendment, modification or repeal of
Section 220 of the Election Code of 1971 which gave the herein petitioners the
right to file an election contest against those proclaimed elected," and "according
to Section 8, Article XVII of the New Constitution 'all courts existing at the time of
the ratification of this Constitution shall continue and exercise their jurisdiction
until otherwise provided by law in accordance with this Constitution, and all cases
pending in said courts shall be heard, tried and determined under the laws then
in force.' Consequently, the Courts of First Instance presided over by the
respondent-Judges should continue and exercise their jurisdiction to hear, try

and decide the election protests filed by herein petitioners" (Santos, Euipilag,
Nunez, Parades, Sunga and Valley cases, supra).
While under the New Constitution the Commission on Elections is now the sole
judge of all contests relating to the elections, returns, and qualifications of
members of the National Assembly as well as elective provincial and city officials
(par. 2 of Sec. 2, Article XII-C of the 1973 Constitution), such power does not
extend to electoral contests concerning municipal elective positions.
7. That General Order No. 3, issued by the President of the Philippines merely
reiterated his powers under Section 9 of Article XVII of the New Constitution. The
President did not intend thereby to modify the aforesaid constitutional provision
(Euipilag, supra).
General Order No. 3, as amended by General Order No. 3-A, does not expressly
include electoral contests of municipal elective positions as among those
removed from the jurisdiction of the courts; for said General Order, after affirming
the jurisdiction of the Judiciary to decide in accordance with the existing laws on
criminal and civil cases, simply removes from the jurisdiction of the Civil Court
certain crimes specified therein as well as the validity, legality or constitutionality
of any decree, order or acts issued by the President or his duly designated
representative or by public servants pursuant to his decrees and orders issued
under Proclamation No. 1081.
8. That General Order No. 3 may not be invoked by the courts to avoid exercise
of their jurisdiction because to do co "is nothing short of unwarranted abdication
of judicial', authority, which no judge duly imbued with the implications of the
paramount principle of independence of the judiciary should ever think of doing. It
is unfortunate indeed that respondent Judge is apparently unaware that it is a
matter of highly significant historical fact that this Court has always deemed
General Order No. 3 including its amendment by General Order No. 3-A as
practically inoperative even in the light of Proclamation No. 1081 of September
21, 1972 and Proclamation No. 1104 of January 17, 1973, placing the whole
Philippines under martial law. While the members of the Court are not agreed on
whether or not particular instances of attack against the validity of certain
Presidential decrees raise political questions which the Judiciary would not
interfere with, there is unanimity among Us in the view that it is for the Court
rather than the Executive to determine whether or not We may take cognizance
of any given case involving the validity of acts of the Executive Department
purportedly under the authority of the martial law proclamations" (Lina vs.
Purisima, 3 PHILAJUR 605, 610-611, 82 SCRA 344 [1978]).
II
1. In the light of the foregoing pronouncements, We hold that the electoral protest
case herein involved has remained a justiciable controversy. No political question
has ever been interwoven into this case. Nor is there any act of the incumbent
President or the Legislative Department to be indirectly reviewed or interfered
with if the respondent Judge decides the election protest. The term "political
question" connotes what it means in ordinary parlance, namely, a question of
policy. It refers to those questions which under the Constitution, are to be
decided by the people in their sovereign capacity; or in regard to which full
discretionary authority has been delegated to the legislative or executive branch
of the government. It is concerned with issues dependent upon the wisdom, not
legality, of a particular measure" (Tañada vs. Cuenco, L-1052, Feb. 28, 1957). A
broader definition was advanced by U.S. Supreme Court Justice Brennan
in Baker vs. Carr (369 U.S. 186 [1962]): "Prominent on the surface of any case
held to involve a political question is found a textually demonstrable constitutional

commitment of the issue to a coordinate political department; or a lack of
judicially discoverable and manageable standards for resolving it; or the
impossibility of deciding without an initial policy determination of a kind clearly for
non-judicial discretion; or the impossibility of a court's undertaking independent
resolution without expressing lack of respect due coordinate branches of the
government; or an unusual need for unquestioning adherence to a political
decision already made; or the potentiality of embarrassment from multifarious
pronouncements by various departments on one question" (p. 217). And Chief
Justice Enrique M. Fernando, then an Associate Justice, of this Court fixed the
limits of the term, thus: "The term has been made applicable to controversies
clearly non-judicial and therefore beyond its jurisdiction or to an issue involved in
a case appropriately subject to its cognizance, as to which there has been a prior
legislative or executive determination to which deference must be paid (Cf. Vera
vs. Avelino, 77 Phil. 192 [1946]; Lopez vs. Roxas, L-25716, July 28, 1966, 17
SCRA 756; Gonzales vs. Commission on Elections, L-28196, Nov. 9, 1967, 21
SCRA 774). It 'has likewise been employed loosely to characterize a suit where
the party proceeded against is the President or Congress, or any branch thereof
(Cf. Planas vs. Gil, 67 Phil. 62 [1937]; Vera vs. Avelino, 77 Phil. 192 [1946]). If to
be delimited with accuracy; 'political questions' should refer to such as would
under the Constitution be decided by the people in their sovereign capacity or in
regard to which full discretionary authority is vested either in the President or
Congress. It is thus beyond the competence of the judiciary to pass upon..... "
(Lansang vs. Garcia, 42 SCRA 448, 504-505 [1971]).
2. The only issue in the electoral protest case dismissed by respondent Judge on
the ground of political question is who between protestant — herein petitioner —
and protestee — herein respondent Yu — was the duly elected mayor of
Rosales, Pangasinan, and legally entitled to enjoy the rights, privileges and
emoluments appurtenant thereto and to discharge the functions, duties and
obligations of the position. If the protestee's election is upheld by the respondent
Judge, then he continues in office; otherwise, it is the protestant, herein
petitioner. That is the only consequence of a resolution of the issue therein
involved — a purely justiciable question or controversy as it implies a given right,
legally demandable and enforceable, an act or ommission violative of said right,
and a remedy, granted or sanctioned by law, for said breach of right (Tan vs.
Republic, 107 Phil. 632-633 [1960]). Before and after the ratification and
effectivity of the New Constitution, the nature of the aforesaid issue as well as the
consequences of its resolution by the Court, remains the same as above-stated.
3. Any judgment to be made on that issue will not in any way collide or interfere
with the mandate of Section 9 of Article XVII of the New Constitution, as it will
merely resolve who as between protestant and protestee is the duly elected
mayor of Rosales, Pangasinan; hence, entitled to enjoy the extended term as
mandated by said provision of the New Constitution. As construed by this Court,
the elective officials referred to in Section 9 of Article XVII are limited to those
duly elected as the right to said extended term was not personal to whosoever
was incumbent at the time of the ratification and effectivity of the New
Constitution. Nor would such judgment preempt, collide or interfere with the
power or discretion entrusted by the New Constitution to the incumbent President
or the Legislative Department, with respect to the extended term of the duly
elected incumbents; because whoever between protestant and protestee is
declared the duly elected mayor will be subject always to whatever action the
President or the Legislative Department will take pursuant thereto.
4. Neither does Section 2 of Article XI stigmatize the issue in that electoral

protest case with a political color. For simply, that section allocated unto the
National Assembly the power to enact a local government code "which may not
thereafter be amended except by a majority of all its Members, defining a more
responsive and accountable local government allocating among the different
local government units their powers, responsibilities, and resources, and
providing for their qualifications, election and removal, term, salaries, powers,
functions and duties of local officials, and all other matters relating to the
organization and operation of the local units" but "... any change in the existing
form of local government shall not take effect until ratified by a majority of the
votes cast in a plebiscite called for the purpose." It is apparent at once that such
power committed by the New Constitution to the National Assembly will not be
usurped or preempted by whatever ruling or judgment the respondent Judge will
render in the electoral protest case. Whoever will prevail in that contest will enjoy
the indefinite term of the disputed office of mayor of Rosales, Pangasinan in the
existing set-up of local government in this country; subject always to whatever
change or modification the National Assembly will introduce when it will enact the
local government code.
III
The construction made by respondent Judge of Sections 7 and 8 of Article XVII

of the New Constitution "... that these refer to matters raised in the enforcement
of existing laws or in the invocation of a court's jurisdiction which have not been
'entrusted to the so-called political department or reserved to be settled by its
own extra-governmental action,"' strained as it is, cannot be sustained in view of
the result herein reached on the issue of political question as well as Our
previous pronouncements as above restated on the same Sections 7 and 8 of
the New Constitution.
WHEREFORE, RESPONDENT COURT'S ORDER OF DISMISSAL IS HEREBY

SET ASIDE AND THE RESPONDENT COURT IS DIRECTED TO
IMMEDIATELY PROCEED WITH THE TRIAL AND DETERMINATION OF THE
ELECTION PROTEST BEFORE IT ON THE MERITS. THIS DECISION SHALL
BE IMMEDIATELY EXECUTORY UPON PROMULGATION HEREOF. NO
COSTS.
EN BANC
G.R. No. L-10520 February 28, 1957
LORENZO M. TAÑADA and DIOSDADO MACAPAGAL, petitioners, vs.

MARIANO JESUS CUENCO,respondents.
CONCEPCION, J.:
Petitioner Lorenzo M. Tañada is a member of the Senate of the Philippines, and

President of the Citizens Party, whereas petitioner Diosdado Macapagal, a
member of the House of Representatives of the Philippines, was one of the
official candidates of the Liberal Party for the Senate, at the General elections
held in November, 1955, in which Pacita Madrigal Warns, Lorenzo Sumulong,
Quintin Paredes, Francisco Rodrigo, Pedro Sabido, Claro M. Recto, Domocao
Alonto and Decoroso Rosales, were proclaimed elected. Subsequently, the
elections of this Senators-elect-who eventually assumed their respective seats in
the Senate-was contested by petitioner Macapagal, together with Camilo Osias,
Geronima Pecson, Macario Peralta, Enrique Magalona, Pio Pedrosa and William
Chiongbian-who had, also, run for the Senate, in said election-in Senate
Electoral Case No. 4, now pending before the Senate Electoral Tribunal. .
The Senate, in its session of February 22, 1956, upon nomination of Senator
Cipriano Primicias, on behalf of the Nacionalista Party, chose Senators Jose P.
Laurel, Fernando Lopez and Cipriano Primicias, as members of the Senate
Electoral Tribunal. Upon nomination of petitioner Senator Tañada, on behalf of
the Citizens Party, said petitioner was next chosen by the Senate as member of
said Tribunal. Then, upon nomination of Senator Primicias on behalf of the
Committee on Rules of the Senate, and over the objections of Senators Tañada
and Sumulong, the Senate choose respondents Senators Mariano J. Cuenco
and Francisco A. Delgado as members of the same Electoral Tribunal.
Subsequently, the Chairman of the latter appointed: (1) Alfredo Cruz and
Catalina Cayetano, as technical assistant and private secretary, respectively, to
Senator Cuenco, as supposed member of the Senate Electoral Tribunal, upon
his recommendation of said respondent; and (2) Manuel Serapio and Placido
Reyes, as technical assistant and private secretary, respectively to Senator
Delgado, as supposed member of said Electoral Tribunal, and upon his
recommendation.
Soon, thereafter, Senator Lorenzo M. Tañada and Congressman Diosdado

Macapagal instituted the case at bar against Senators Cuenco and Delgado, and
said Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, as
well as Fernando Hipolito, in his capacity as Cashier and Disbursing Officer of
the Senate Electoral Tribunal. Petitioners allege that on February 22, 1956, as
well as at present, the Senate consists of 23 Senators who belong to the
Nacionalista Party, and one (1) Senator-namely, petitioner, Lorenzo M. Tañada-
belonging to the Citizens Party; that the Committee on Rules for the Senate, in
nominating Senators Cuenco and Delgado, and the Senate, in choosing these
respondents, as members of the Senate Electoral Tribunal, had "acted absolutely
without power or color of authority and in clear violation .. of Article VI, Section 11
of the Constitution"; that "in assuming membership in the Senate Electoral
Tribunal, by taking the corresponding oath of office therefor", said respondents
had "acted absolutely without color of appointment or authority and are
unlawfully, and in violation of the Constitution, usurping, intruding into and
exercising the powers of members of the Senate Electoral Tribunal"; that,
consequently, the appointments of respondents, Cruz, Cayetano, Serapio and
Reyes, as technical assistants and private secretaries to Senators Cuenco and
Delgado-who caused said appointments to be made-as members of the Senate
Electoral Tribunal, are unlawful and void; and that Senators Cuenco and Delgado
"are threatening and are about to take cognizance of Electoral Case No. 4 of the
Senate Electoral Tribunal, as alleged members thereof, in nullification of the
rights of petitioner Lorenzo M. Tañada, both as a Senator belonging to the
Citizens Party and as representative of the Citizens Party in the Senate Electoral
Tribunal, and in deprivation of the constitutional rights of petitioner Diosdado
Macapagal and his co-protestants to have their election protest tried and
decided-by an Electoral Tribunal composed of not more than three (3) senators
chosen by the Senate upon nomination of the party having the largest number of
votes in the Senate and not more than the (3) Senators upon nomination of the
Party having the second largest number of votes therein, together, three (3)
Justice of the Supreme Court to be designated by the Chief Justice, instead of by
an Electoral Tribunal packed with five members belonging to the Nacionalista
Party, which is the rival party of the Liberal Party, to which the Petitioner
Diosdado Macapagal and his co-protestants in Electoral Case No. 4 belong, the
said five (5) Nacionalista Senators having been nominated and chosen in the
manner alleged.. hereinabove.".
Petitioners pray that:.

"1. Upon petitioners' filing of bond in such amount as may be determined by this
Honorable Court, a writ of preliminary injunction be immediately issued directed
to respondents Mariano J. Cuenco, Francisco A. Delgado, Alfredo Cruz, Catalina
Cayetano, Manuel Serapio and Placido Reyes, restraining them from continuing
to usurp, intrude into and/ or hold or exercise the said public offices respectively
being occupied by them in the Senate Electoral Tribunal, and to respondent
Fernando Hipolito restraining him from paying the salaries of respondent Alfredo
Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, pending this
action.
"2. After hearing, judgment be rendered ousting respondent Mariano J. Cuenco

Francisco A. Delgado, Alfredo Cruz, Catalina Cayetano, Manuel Serapio and
Placido Reyes from the aforementioned public offices in the Senate Electoral
Tribunal and that they be altogether excluded therefrom and making the
Preliminary injunction permanent, with costs against the respondents.".
Respondents have admitted the main allegations of fact in the petition, except
insofar as it questions the legality, and validity of the election of respondents
Senators Cuenco and Delgado, as members of the Senate Electoral Tribunal,
and of the appointment of respondent Alfredo Cruz, Catalina Cayetano, Manuel
Serapio and Placido Reyes as technical assistants and private secretaries to said
respondents Senators. Respondents, likewise, allege, by way of special and
affirmative defenses, that: (a) this Court is without power, authority of jurisdiction
to direct or control the action of the Senate in choosing the members of the
Electoral Tribunal; and (b) that the petition states no cause of action, because
"petitioner Tañada has exhausted his right to nominate after he nominated
himself and refused to nominate two (2) more Senators", because said petitioner
is in estoppel, and because the present action is not the proper remedy. .
I. Respondents assail our jurisdiction to entertain the petition, upon the ground
that the power to choose six (6) Senators as members of the Senate Electoral
Tribunal has been expressly conferred by the Constitution upon the Senate,
despite the fact that the draft submitted to the constitutional convention gave to
the respective political parties the right to elect their respective representatives in
the Electoral Commission provided for in the original Constitution of the
Philippines, and that the only remedy available to petitioners herein "is not in the
judicial forum", but "to bring the matter to the bar of public opinion.".
We cannot agree with the conclusion drawn by respondents from the foregoing
facts. To begin with, unlike the cases of Alejandrino vs. Quezon (46 Phil., 83) and
Vera vs. Avelino (77 Phil., 192)-relied upon by the respondents this is not an
action against the Senate, and it does not seek to compel the latter, either
directly or indirectly, to allow the petitioners to perform their duties as members of
said House. Although the Constitution provides that the Senate shall choose six
(6) Senators to be members of the Senate Electoral Tribunal, the latter is part
neither of Congress nor of the Senate. (Angara vs. Electoral Commission, 63
Phil., 139, Suanes vs. Chief Accountant, 81 Phil., 818; 46 Off. Gaz., 462.).
Secondly, although the Senate has, under the Constitution, the exclusive power
to choose the Senators who shall form part of the Senate Electoral Tribunal, the
fundamental law has prescribed the manner in which the authority shall be
exercised. As the author of a very enlightening study on judicial self-limitation has
aptly put it:.
"The courts are called upon to say, on the one hand, by whom certain powers
shall be exercised, and on the other hand, to determine whether the powers
possessed have been validly exercised. In performing the latter function, they do
not encroach upon the powers of a coordinate branch of the, government, since
the determination of the validity of an act is not the same, thing as the
performance of the act. In the one case we are seeking to ascertain upon whom
devolves the duty of the particular service. In the other case we are merely
seeking to determine whether the Constitution has been violated by anything
done or attented by either an executive official or the legislative." (Judicial Self-
Limitation by Finkelstein, pp. 221, 224, 244, Harvard Law Review, Vol. 39;
emphasis supplied,).
The case of Suanes vs. Chief Accountant (supra) cited by respondent refutes
their own pretense. This Court exercised its jurisdiction over said case and
decided the same on the merits thereof, despite the fact that it involved an inquiry
into the powers of the Senate and its President over the Senate Electoral
Tribunal and the personnel thereof. .
Again, under the Constitution, "the legislative power" is vested exclusively in the
Congress of the Philippines. Yet, this does not detract from the power of the
courts to pass upon the constitutionality of acts of Congress 1 And, since judicial
power includes the authority to inquire into the legality of statutes enacted by the
two Houses of Congress, and approved by the Executive, there can be no
reason why the validity of an act of one of said Houses, like that of any other
branch of the Government, may not be determined in the proper actions. Thus, in
the exercise of the so-called "judicial supremacy", this Court declared that a
resolution of the defunct National Assembly could not bar the exercise of the
powers of the former Electoral Commission under the original Constitution. 2
(Angara vs. Electoral Commission, supra), and annulled certain acts of the
Executive 3 as incompatible with the fundamental law.
In fact, whenever the conflicting claims of the parties to a litigation cannot

properly be settled without inquiring into the validity of an act of Congress or of
either House thereof, the courts have, not only jurisdiction to pass upon said
issue, but, also, the duty to do so, which cannot be evaded without violating the
fundamental law and paving the way to its eventual destruction. 4.
Neither are the cases of Mabanag vs. Lopez Vito (78 Phil., 1) and Cabili vs.
Francisco (88 Phil., 654), likewise, invoked by respondents, in point. In the
Mabanag case, it was held that the courts could not review the finding of the
Senate to the effect that the members thereof who had been suspended by said
House should not be considered in determining whether the votes cast therein, in
favor of a resolution proposing an amendment to the Constitution, sufficed to
satisfy the requirements of the latter, such question being a political one. The
weight of this decision, as a precedent, has been weakened, however, by our
resolutions in Avelino vs. Cuenco (83 Phil., 17), in which this Court proceeded to
determine the number essential to constitute a quorum in the Senate. Besides,
the case at bar does not hinge on the number of votes needed for a particular act
of said body. The issue before us is whether the Senate-after acknowledging that
the Citizens Party is the party, having the second largest number of votes in the
Senate, to which party the Constitution gives the right to nominate three (3)
Senators for the Senate electoral Tribunal-could validly choose therefor two (2)
Nacionalista Senators, upon nomination by the floor leader of the Nacionalista
Party in the Senate, Senator Primicias claiming to act on behalf of the Committee
on Rules for the Senate.
The issue in the Cabili case was whether we could review a resolution of the
Senate reorganizing its representation in the Commission on Appointments. This
was decided in the negative, upon the authority of Alejandrino vs. Quezon
(supra) and Vera vs. Avelino (supra), the main purpose of the petition being "to
force upon the Senate the reinstatement of Senator Magalona in the Commission
on Appointments," one-half (1/2) of the members of which is to be elected by
each House on the basis of proportional representation of the political parties

therein. Hence, the issue depended mainly on the determination of the political
alignment of the members of the Senate at the time of said reorganization and of
the necessity or advisability of effecting said reorganization, which is a political
question. We are not called upon, in the case at bar, to pass upon an identical or
similar question, it being conceded, impliedly, but clearly, that the Citizens Party
is the party with the second largest number of votes in the Senate. The issue,
therefore, is whether a right vested by the Constitution in the Citizens Party may
validly be exercised, either by the Nacionalista Party, or by the Committee on
Rules for the Senate, over the objection of said Citizens Party.
xxx xxx xxx
The only ground upon which respondents' objection to the jurisdiction of this
Court and their theory to the effect that the proper remedy for petitioners herein
is, not the present action, but an appeal to public opinion, could possibly be
entertained is, therefore, whether the case at bar raises merely a political
question, not one justiciable in nature.
In this connection, respondents assert in their answer that "the remedy of

petitioners is not in the judicial forum, but, to use petitioner, Tañada's own words,
to bring the matter to the bar of public opinion' (p. 81, Discussion on the Creation
of the Senate Electoral Tribunal, February 21, 1956)." This allegation may give
the impression that said petitioner had declared, on the floor of the Senate, that
his only relief against the acts complained of in the petition is to take up the issue
before the people- which is not a fact. During the discussions in the Senate, in
the course of the organization of the Senate Electoral Tribunal, on February 21,
1956, Senator Tañada was asked what remedies he would suggest if he
nominated two (2) Nacionialista Senators and the latter declined the, nomination.
Senator Tañada replied:.
"There are two remedies that occur to my mind right now, Mr. Senator; one is the
remedy open to all of us that if we feel aggrieved and there is no recourse in the
court of justice, we can appeal to public opinion. Another remedy is an action in
the Supreme Court. Of course, as Senator Rodriguez, our President here, has
said one day; "If you take this matter to the Supreme Court, you will lose,
because until now the Supreme Court has always ruled against any action that
would constitute interference in the business of anybody pertaining to the
Senate. The theory of separation of powers will be upheld by the Supreme
Court." But that learned opinion of Senator Rodriguez, our President,
notwithstanding, I may take the case to the Supreme Court if my right herein is
not respected. I may lose, Mr. President, but who has not lost in the Supreme
Court? I may lose because of the theory of the separation of powers, but that
does not mean, Mr. President, that what has been done here is pursuant to the
provision of the Constitution." (Congressional Record, Vol. III, p. 339; emphasis
supplied.).
This statement did not refer to the nomination, by Senator Primicias, and the
election, by the Senate, of Senators Cuenco and Delgado as members of said
Tribunal. Indeed, said nomination and election took place the day after the
aforementioned statement of Senator Tañada was made. At any rate, the latter
announced that he might "take the case to the Supreme Court if my right here is
not respected.".
As already adverted to, the objection to our jurisdiction hinges on the question
whether the issue before us is political or not. In this connection, Willoughby
lucidly states:.
"Elsewhere in this treatise the well-known and well-established principle is

considered that it is not within the province of the courts to pass judgment upon
the policy of legislative or executive action. Where, therefore, discretionary
powers are granted by the Constitution or by statute, the manner in which those
powers are exercised is not subject to judicial review. The courts, therefore,
concern themselves only with the question as to the existence and extent of
these discretionary powers.
"As distinguished from the judicial, the legislative and executive departments are
spoken of as the political departments of government because in very many
cases their action is necessarily dictated by considerations of public or political
policy. These considerations of public or political policy of course will not permit
the legislature to violate constitutional provisions, or the executive to exercise
authority not granted him by the Constitution or by, statute, but, within these
limits, they do permit the departments, separately or together, to recognize that a
certain set of facts exists or that a given status exists, and these determinations,
together with the consequences that flow therefrom, may not be traversed in the
courts." (Willoughby on the Constitution of the United States, Vol. 3, p. 1326;
emphasis supplied.).
To the same effect is the language used in Corpus Juris Secundum, from which
we quote:.
"It is well-settled doctrine 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 provisions.
"It is not easy, however, to define the phrase `political question', nor to determine
what matters, fall within its scope. It is frequently used to designate all questions
that lie outside the scope of the judicial questions, which under the constitution,
are to be decided by the people in their sovereign capacity, or in regard to which
full discretionary authority has been delegated to the legislative or executive
branch of the government." (16 C.J.S., 413; see, also Geauga Lake Improvement
Ass'n. vs. Lozier, 182 N. E. 491, 125 Ohio St. 565; Sevilla vs, Elizalde, 112 F. 2d
29, 72 App. D. C., 108; emphasis supplied.).
Thus, it has been repeatedly held that the question whether certain amendments
to the Constitution are invalid for non-compliance with the procedure therein
prescribed, is not a political one and may be settled by the Courts. 5 .
In the case of In re McConaughy (119 N.W. 408), the nature of political question
was considered carefully. The Court said:.
"At the threshold of the case we are met with the assertion that the questions
involved are political, and not judicial. If this is correct, the court has no
jurisdiction as the certificate of the state canvassing board would then be final,
regardless of the actual vote upon the amendment. The question thus raised is a
fundamental one; but it has been so often decided contrary to the view
contended for by the Attorney General that it would seem to be finally settled.
xxx xxx x x x.
" .. What is generally meant, when it is, said that a question is political, and not
judicial, is that it is a matter which, is to be exercised by the people in their
primary political capacity, or that it has been specifically delegated to some other
department or particular officer of the government, with discretionary power to
act. See State vs. Cunningham, 81 Wis. 497, 51 L. R. A. 561; In Re Gunn, 50
Kan. 155; 32 Pac. 470, 948, 19 L. R. A. 519; Green vs. Mills, 69 Fed. 852, 16, C.
C. A. 516, 30 L. R. A. 90; Fletcher vs. Tuttle, 151 Ill. 41, 37 N. E. 683, 25 L. R. A.

143, 42 Am. St. Rep. 220. Thus the Legislature may in its discretion determine
whether it will pass a law or submit a proposed constitutional amendment to the
people. The courts have no judicial control over such matters, not merely
because they involve political question, but because they are matters which the
people have by the Constitution delegated to the Legislature. The Governor may
exercise the powers delegated to him, free from judicial control, so long as he
observes the laws and acts within the limits of the power conferred. His
discretionary acts cannot be controllable, not primarily because they are of a
political nature, but because the Constitution and laws have placed the particular
matter under his control. But every officer under a constitutional government
must act according to law and subject him to the restraining and controlling
power of the people, acting through the courts, as well as through the executive
or the Legislature. One department is just as representative as the other, and the
judiciary is the department which is charged with the special duty of determining
the limitations which the law places upon all official action. The recognition of this
principle, unknown except in Great Britain and America, is necessary, to the end
that the government may be one of laws and not men'-words which Webster said
were the greatest contained in any written constitutional document." (pp. 411,
417; emphasis supplied.).
In short, the term "political question" connotes, in legal parlance, what it means in
ordinary parlance, namely, a question of policy. In other words, in the language
of Corpus Juris Secundum (supra), it refers to "those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the Legislature
or executive branch of the Government." It is concerned with issues dependent
upon the wisdom, not legality, of a particular measure.
Such is not the nature of the question for determination in the present case.
Here, we are called upon to decide whether the election of Senators Cuenco and
Delgado, by the Senate, as members of the Senate Electoral Tribunal, upon
nomination by Senator Primicias-a member and spokesman of the party having
the largest number of votes in the Senate-on behalf of its Committee on Rules,
contravenes the constitutional mandate that said members of the Senate
Electoral Tribunal shall be chosen "upon nomination .. of the party having the
second largest number of votes" in the Senate, and hence, is null and void. This
is not a political question. The Senate is not clothed with "full discretionary
authority" in the choice of members of the Senate Electoral Tribunal. The
exercise of its power thereon is subject to constitutional limitations which are
claimed to be mandatory in nature. It is clearly within the legitimate prove of the
judicial department to pass upon the validity the proceedings in connection
therewith.
".. whether an election of public officers has been in accordance with law is for
the judiciary. Moreover, where the legislative department has by statute
prescribed election procedure in a given situation, the judiciary may determine
whether a particular election has been in conformity with such statute, and,
particularly, whether such statute has been applied in a way to deny or
transgress on the constitutional or statutory rights .." (16 C.J.S., 439; emphasis
supplied.).
It is, therefore, our opinion that we have, not only jurisdiction, but, also, the duty,
to consider and determine the principal issue raised by the parties herein.
II. Is the election of Senators Cuenco and Delgado, by the Senate, as members
of the Electoral Tribunal, valid and lawful?.
Section 11 of Article VI of the Constitution, reads:.
"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. Each Electoral Tribunal
shall be composed of nine Members, three of whom shall be Justices of the
Supreme Court to be designated by the Chief Justice, and the remaining six shall
be Members of the Senate or of the House of Representatives, as the case may
be, who shall be chosen by each House, three upon nomination of the party
having the largest number of votes and three of the party having the second
largest number of votes therein. The Senior Justice in each Electoral Tribunal
shall be its Chairman." (Emphasis supplied.).
It appears that on February 22, 1956, as well as at present, the Senate of the
Philippines consists of twenty three (23) members of the Nacionalista Party and
one (1) member of the Citizens Party, namely, Senator Tañada, who is, also, the
president of said party. In the session of the Senate held on February 21, 1956,
Senator Sabido moved that Senator Tañada, "the President of the Citizens Party,
be given the privilege to nominate .. three (3) members" of the Senate Electoral
Tribunal (Congressional Record for the Senate, Vol. III, pp. 328-329), referring to
those who, according to the provision above-quoted, should be nominated by
"the party having the second largest number of votes" in the Senate. Senator
Tañada objected formally to this motion upon the-ground: (a) that the right to
nominate said members of the Senate Electoral Tribunal belongs, not to the
Nacionalista Party of which Senator Sabido and the other Senators are
members-but to the Citizens Party, as the one having the second largest number
of votes in the Senate, so that, being devoid of authority to nominate the
aforementioned members of said Tribunal, the Nacionalista Party cannot give it
to the Citizens Party, which, already, has such authority, pursuant to the
Constitution; and (b) that Senator Sabido's motion would compel Senator Tañada
to nominate three (3) Senators to said Tribunal, although as representative of the
minority party in the Senate he has "the right to nominate one, two or three to the
Electoral Tribunal," in his discretion. Senator Tañada further stated that he
reserved the right to determine how many he would nominate, after hearing the
reasons of Senator Sabido in support of his motion. After some discussion, in
which Senators Primicias, Cea, Lim, Sumulong, Zulueta, and Rodrigo took part,
the Senate adjourned until the next morning, February 22, 1956 (Do., do, pp.
329, 330, 332-333, 336, 338, 339, 343).
Then, said issues were debated upon more extensively, with Senator Sumulong,
not only seconding the opposition of Senator Tañada, but, also, maintaining that
"Senator Tañada should nominate only one" member of the Senate, namely,
himself, he being the only Senator who belongs to the minority party in said
House (Do., do., pp. 360-364, 369). Thus, a new issue was raised - whether or
not one who does not belong to said party may be nominated by its spokesman,
Senator Tañada - on which Senators Paredes, Pelaez, Rosales and Laurel, as
well as the other Senators already mentioned, expressed their views (Do., do.,
pp. 345, 349, 350, 354, 358, 364, 375). Although the deliberations of the Senate
consumed the whole morning and afternoon of February 22, 1956, a satisfactory
solution of the question before the Senate appeared to be remote. So, at 7:40
p.m., the meeting was suspended, on motion of Senator Laurel, with a view to
seeking a compromise formula (Do., do., pp. 377). When session was resumed
at 8:10 p.m., Senator Sabido withdrew his motion above referred to. Thereupon,
Senator Primicias, on behalf of the Nacionalista Party, nominated, and the
Senate elected, Senators Laurel, Lopez and Primicias, as members of the
Senate Electoral Tribunal. Subsequently, Senator Tañada stated:.
"On behalf of the Citizens Party, the minority party in this Body, I nominate the
only Citizens Party member in this Body, and that is Senator Lorenzo M.
Tañada.".
Without an objection, this nomination was approved by the House. Then, Senator
Primicias stood up and said:.
"Now, Mr. President, in order to comply with the provision in the Constitution, the
Committee on Rules of the Senate-and I am now making this proposal not on
behalf of the Nacionalista Party but on behalf of the Committee on Rules of the
Senate-I nominate two other members to complete the membership of the
Tribunal: Senators Delgado and Cuenco.".
What took place thereafter appears in the following quotations from the
Congressional Record for the Senate.
"SENATOR TAÑADA. Mr. President.
"EL PRESIDENTE INTERINO. Caballero de Quezon.
"SENATOR TAÑADA. I would like to record my opposition to the nominations of

the last two named gentlemen, Senators Delgado and Cuenco, not because I
don't believe that they do not deserve to be appointed to the tribunal but because
of my sincere and firm conviction that these additional nominations are not
sanctioned by the Constitution. The Constitution only permits the Nacionalista
Party or the party having the largest number of votes to nominate three.
"SENATOR SUMULONG. Mr. President.
"EL PRESIDENTE INTERINO. Caballero de Rizal.
"SENATOR SUMULONG. For the reasons that I have stated a few moments ago
when I took the floor, I also wish to record my objection to the last nominations,
to the nomination of two additional NP's to the Electoral Tribunal.
"EL PRESIDENTE INTERINO. Esta dispuesto el Senado a votar? (Varios

Senadores: Si.) Los que esten conformes con la nominacion hecha por el
Presidente del Comite de Reglamentos a favor de los Senadores Delgado y
Cuenco para ser miembros del Tribunal Electoral, digan, si. (Varios Senadores:
Si.) Los que no lo esten digan, no (Silencio.) Queda aprobada." (Congressional
Record for the Senate, Vol. III, p. 377; emphasis supplied.).
Petitioners maintain that said nomination and election of Senators Cuenco and
Delgado-who belong to the Nacionalista Party-as members of the Senate
Electoral Tribunal, are null and void and have been made without power or color
of authority, for, after the nomination by said party, and the election by the
Senate, of Senators Laurel, Lopez and Primicias, as members of said Tribunal,
the other Senators, who shall be members thereof, must necessarily be
nominated by the party having the second largest number of votes in the Senate,
and such party is, admittedly, the Citizens Party, to which Senator Tañada
belongs and which he represents.
Respondents allege, however, that the constitutional mandate to the effect that
"each Electoral Tribunal shall be compose of nine (9) members," six (6) of whom
"shall be members of the Senate or of the House of Representatives, as the case
may be", is mandatory; that when-after the nomination of three (3) Senators by
the majority party, and their election by the Senate, as members of the Senate
Electoral Tribunal-Senator Tañada nominated himself only, on behalf of the
minority party, he thereby "waived his right to no two more Senators;" that, when
Senator Primicias nominated Senators Cuenco and Delgado, and these
respondents were chosen by the Senate, as members of the Senate Electoral
Tribunal, Said Senator Primicias and the Senate merely complied with the
aforementioned provision of the fundamental law, relative to the number of
members of the Senate Electoral Tribunal; and, that, accordingly, Senators
Cuenco and Delgado are de jure members of said body, and the appointment of
their co-respondents, Alfredo Cruz, Catalina Cayetano, Manuel Serapio and
Placido Reyes is valid and lawful.
At the outset, it will be recalled that the proceedings the organization of the
Senate Electoral Tribunal began with a motion of Senator Sabido to the effect
that "the distinguished gentleman from Quezon, the President of the Citizens
Party, be given the privilege to nominate the three Members" of said Tribunal.
Senator Primicias inquired why the movant had used the word "privilege".
Senator Sabido explained that the present composition of the Senate had
created a condition or situation which was not anticipated by the framers of our
Constitution; that although Senator Tañada formed part of the Nacionalista Party
before the end of 1955, he subsequently parted ways with" said party; and that
Senator Tañada "is the distinguished president of the Citizens Party," which
"approximates the situation desired by the framers of the Constitution"
(Congressional Record for the Senate Vol. III, pp. 329-330). Then Senator Lim
intervened, stating:.
"At present Senator Tañada is considered as forming the only minority or the one
that has the second largest number of votes in the existing Senate, is not that
right? And if this is so, he should be given this as a matter of right, not as a
matter of privilege. .. I don't believe that we should be allowed to grant this
authority to Senator Tañada only as a privilege but we must grant it as a matter
of right." (Id., id., p. 32; emphasis supplied.).
Similarly, Senator Sumulong maintained that "Senator Tañada, as Citizens Party

Senator, has the right and not a mere privilege to nominate," adding that:.
".. the question is whether we have a party here having the second largest
number of votes, and it is clear in my mind that there is such a party, and that is
the Citizens Party to which the gentleman from Quezon belongs. .. We have to
bear in mind, .. that when Senator Tañada was included in the Nacionalista Party
ticket in 1953, it was by virtue of a coalition or an alliance between the Citizens
Party and the Nacionalista Party at that time, and I maintain that when Senator
Tañada as head of the Citizens Party entered into a coalition with the
Nacionalista Party, he did not thereby become a Nacionalista because that was a
mere coalition, not a fusion. When the Citizens Party entered into a mere
coalition, that party did not lose its personality as a party separate and distinct
from the, Nacionalista Party. And we should also remember that the certificate of
candidacy filed by Senator Tañada in the 1953 election was one to the effect that
he belonged to the Citizens Party .." (Id., id., p. 360; emphasis supplied.).
The debate was closed by Senator Laurel, who remarked, referring to Senator
Tañada:.
"..there is no doubt that he does not belong to the majority in the first place, and
that, therefore, he belongs to the minority. And whether we like it or not, that is
the reality of the actual situation-that he is not a Nacionalista now, that he is the
head and the representative of the Citizens Party. I think that on equitable ground
and from the point of view of public opinion, his situation .. approximates or
approaches what is within the spirit of that Constitution. .. and from the point of
view of the spirit of the Constitution it would be a good thing if we grant the
opportunity to Senator Tañada to help us in the organization of this Electoral

Tribunal (Id., id., p. 376; emphasis supplied.).
The foregoing statements and the fact that, thereafter, Senator Sabido withdrew
his motion to grant Senator Tañada the "privilege" to nominate, and said
petitioner actually nominated himself "on behalf of the Citizens Party, the minority
party in this Body"-not only without any, objection whatsoever, but, also, with the
approval of the Senate-leave no room for doubt that the Senate-leave no room
for doubt that the Senate has regarded the Citizens Party, represented by
Senator Tañada, as the party having the second largest number of votes in said
House.
Referring, now, to the contention of respondents herein, their main argument in

support of the mandatory character of the constitutional provision relative to the
number of members of the Senate Electoral Tribunal is that the word "shall",
therein used, is imperative in nature and that this is borne out by an opinion of
the Secretary of Justice dated February 1, 1939, pertinent parts of which are
quoted at the footnote. 6.
Regardless of the respect due its author, as a distinguished citizen and public
official, said opinion has little, if any, weight in the solution of the question before
this Court, for the practical construction of a Constitution is of little, if any, unless
it has been uniform .." 6a Again, "as a general rule, it is only in cases of
substantial doubt and ambiguity that the doctrine of contemporaneous or
practical construction has any application". As a consequence, "where the
meaning of a constitutional provision is clear, a contemporaneous or practical
executive interpretation thereof is entitled to no weight, and will not be allowed to
distort or in any way change its natural meaning." The reason is that "the
application of the doctrine of contemporaneous construction is more restricted as
applied to the interpretation of constitutional provisions than when applied to
statutory provisions", and that, "except as to matters committed by the
Constitution, itself to the discretion of some other department, contemporary or
practical construction is not necessarily binding upon the courts, even in a
doubtful case." Hence, "if in the judgment of the court, such construction is
erroneous and its further application is not made imperative by any paramount
considerations of public policy, it may he rejected." (16 C. J. S., 71-72; emphasis
supplied.) 6b.
The aforemention opinion of the Secretary of Justice is not backed up by a,

"uniform" application of the view therein adopted, so essential to give thereto the
weight accorded by the rules on contemporaneous constructions. Moreover, said
opinion tends to change the natural meaning of section 11 of Article VI of the
Constitution, which is clear. What is more, there is not the slightest doubt in our
mind that the purpose and spirit of said provisions do not warrant said change
and that the rejection of the latter is demanded by paramount considerations of
public policy. .
The flaw in the position taken in said opinion and by respondent herein is that,
while, it relies upon the compulsory nature of the word "shall", as regards the
number of members of the Electoral Tribunals, it ignores the fact that the same
term is used with respect to the method prescribed for their election, and that
both form part of a single sentence and must be considered, therefore, as
integral portions of one and the same thought. Indeed, respondents have not
even tried to show and we cannot conceive-why "shall" must be deemed
mandatory insofar as the number of members of each Electoral Tribunal, and
should be considered directory as regards the procedure for their selection. More
important still, the history of section 11 of Article VI of the Constitution and the
records of the Convention, refute respondents' pretense, and back up the theory
of petitioners herein.
Commenting on the frame of mind of the delegates to the Constitutional

Convention, when they faced the task of providing for the adjudication of contests
relating to the election, returns and qualifications of members of the Legislative
Department, Dr. Jose M. Aruego, a member of said Convention, says:.
"The experience of the Filipino people under the provisions of the organic laws
which left to the lawmaking body the determination of the elections, returns, and
qualifications of its members was not altogether satisfactory. There were many
complaints against the lack of political justice in this determination; for in a great
number of cases, party interests controlled and dictated the decisions. The
undue delay in the dispatch of election contests for legislative seats, the
irregularities that characterized the proceedings in some of them, and the very
apparent injection of partisanship in the determination of a great number of the
cases were decried by a great number of the people as well as by the organs of
public opinion.
"The faith of the people in the uprightness of the lawmaking body in the
performance of this function assigned to it in the organic laws was by no means
great. In fact so blatant was the lack of political justice in the decisions that there
was, gradually built up a camp of thought in the Philippines inclined to leave to
the courts the determination of election contests, following the practice in some
countries, like England and Canada.
"Such were the conditions of things at the time of the meeting of the convention."
(The Framing of the Philippine Constitution by Aruego, Vol. 1, pp. 257-258;
This view is shared by distinguished members of the Senate. Thus, in its session
of February 22, 1956, Senator Sumulong declared:.
".. when you leave it to either House to decide election protests involving its own
members, that is virtually placing the majority party in a position to dictate the
decision in those election cases, because each House will be composed of a
majority and a minority, and when you make each House the judge of every
election protest involving any member of that House, you place the majority in a
position to dominate and dictate the decision in the case and result was, there
were so many abuses, there were so main injustices: committed by the majority
at the expense and to the prejudice of the minority protestants. Statements have
been made here that justice was done even under the old system, like that case
involving Senator Mabanag, when he almost became a victim of the majority
when he had an election case, and it was only through the intervention of
President Quezon that he was saved from becoming the victim of majority
injustices.
"It is true that justice had sometimes prevailed under the old system, but the
record will show that those cases were few and they were the rare exceptions.
The overwhelming majority of election protests decided under the old system
was that the majority being then in a position to dictate the, decision in the
election protest, was tempted to commit as it did commit many abuses and
injustices." (Congressional Record for the Senate, Vol. 111, p. 361; emphasis
supplied.).
Senator Paredes, a veteran legislator and former Speaker of the House of

Representatives, said:.
".. what was intended in the creation of the electoral tribunal was to create a sort
of collegiate court composed of nine members: Three of them belonging to the
party having the largest number of votes, and three from the party having the
second largest number votes so that these members may represent the party,
and the members of said party who will sit before the electoral tribunal as
protestees. For when it comes to a party, Mr. President, there ground to believe
that decisions will be made along party lines." (Congressional Record for the
Senate, Vol. III, p. 351; emphasis supplied.).
Senator Laurel, who played an important role in the framing of our Constitution,
expressed himself as follows:.
"Now, with reference to the protests or contests, relating to the election, the
returns and the qualifications of the members of the legislative bodies, I heard it
said here correctly that there was a time when that was given to the
corresponding chamber of the legislative department. So the election, returns
and qualifications of the members, of the Congress or legislative body was
entrusted to that body itself as the exclusive body to determine the election,
returns and qualifications of its members. There was some doubt also expressed
as to whether that should continue or not, and the greatest argument in favor of
the retention of that provision was the fact that was, among other things, the
system obtaining in the United States under the Federal Constitution of the
United States, and there was no reason why that power or that right vested in the
legislative body should not be retained. But it was thought that would make the
determination of this contest, of this election protest, purely political as has been
observed in the past." (Congressional Record for the Senate, Vol. III, p. 376;
It is interesting to note that not one of the members of the Senate contested the
accuracy of the views thus expressed.
Referring particularly to the philosophy underlying the constitutional provision

quoted above, Dr. Aruego states:.
"The defense of the Electoral Commission was based primarily upon the hope
and belief that the abolition of Party line because of the equal representation in
this body of the majority and the minority parties of the National Assembly and
the intervention of some members of the Supreme Court who, under the
proposed constitutional provision, would also be members of the same, would
insure greater political justice in the determination of election contests for seats in
the National Assembly than there would be if the power had been lodged in the
lawmaking body itself. Delegate Francisco summarized the arguments for the
creation of the Electoral Commission in the following words:.
"I understand that from the time that this question is placed in the hands of
members not only of the majority party but also of the minority party, there is
already a condition, a factor which would make protests decided in a non-
partisan manner. We know from experience that many times in the many protests
tried in the House or in the Senate, it was impossible to prevent the factor of
party from getting in. From the moment that it is required that not only the
majority but also the minority should intervene in these questions, we have
already enough guarantee that there would be no tyranny on the part of the
majority.
`But there is another more detail which is the one which satisfies me most, and
that is the intervention of three justices. So that with this intervention of three
justices if there would be any question as to the justice applied by the majority or
the minority, if there would be any fundamental disagreement, or if there would
be nothing but questions purely of party in which the members of the majority as
well as those of the minority should wish to take lightly a protest because the
protestant belongs to one of said parties, we have in this case, as a check upon
the two parties, the actuations of the three justices. In the last analysis, what is
really applied in the determination of electoral cases brought before the tribunals
of justice or before the House of Representatives or the Senate? Well, it is
nothing more than the law and the doctrine of the Supreme Court. If that is the
case, there will be greater skill in the application of the laws and in the application
of doctrines to electoral matters having as we shall have three justices who will
act impartially in these electoral questions.
`I wish to call the attention of my distinguished colleagues to the fact that in

electoral protests it is impossible to set aside party interests. Hence, the best
guarantee, I repeat, for the administration of justice to the parties, for the fact that
the laws will not be applied rightfully or incorrectly as well as for the fact that the
doctrines of the Supreme Court will be applied rightfully, the best guarantee
which we shall have, I repeat, is the intervention of the three justices. And with
the formation of the Electoral Commission, I say again, the protestants as well as
the protestees could remain tranquil in the certainty that they will receive the
justice that they really deserve. If we eliminate from this precept the intervention
of the party of the minority and that of the three justices, then we shall be placing
protests exclusively in the hands of the party in power. And I understand,
gentlemen, that in practice that has not given good results. Many have criticized,
many have complained against, the tyranny of the majority in electoral cases .. I
repeat that the best guarantee the fact that these questions will be judged not
only by three members of the majority but also by three members of the minority,
with the additional guarantee of the impartial judgment of three justices of the
Supreme Court." (The Framing of the Philippine Constitution by Aruego, Vol. I,
pp. 261-263; emphasis supplied.).
The foregoing was corroborated by Senator Laurel. Speaking for this Court, in
Angara vs. Electoral Commission (63 Phil., 139), he asserted:.
"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 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 Constitution, the creation of the Electoral Commission is the
expression of the wisdom `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," (Pp. 174-175.) 7.
As a matter of fact, during the deliberations of the convention, Delegates

Conejero and Roxas said:.
"El Sr. CONEJERO. Antes de votarse la enmienda, quisiera pedir informacion

del Subcomite de Siete.
"El Sr. PRESIDENTE. Que dice el Comite?" El Sr. ROXAS. Con mucho gusto.
"El Sr. CONEJERO. Tal como esta el draft., dando tres miembrosala mayoria, y
otros t?-es a la minyoryia y atros a la Corte Suprerma, no cree su Senoria que
este equivale pricticamente a dejar el asunto a los miembros del Tribunal
Supremo?.
"El Sr. ROXAS. Si y no. Creemos que si el tribunal a la Comision esta cotistuido
en esa forma, tanto los miembros de la mayoria como los de la minoria asi como
los miembros de la Corte Saprema consideration la cuestion sobre la base de
sus meritos, sabiendo que el partidismo no es suficiente para dar el triunbo.
"El Sr. CONEJERO. Cree Su Senoria que en un caso como ese, podriamos
hacer que tanto los de la mayoria como los de la minoria prescindieran del
partidisrno?.
"El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo." (Angara
vs. Electoral Commission, supra, pp. 168-169; emphasis supplied.).
It is clear from the foregoing that the main objective of the framers of our
Constitution in providing for the establishment, first, of an Electoral Commission,
8 and then 9 of one Electoral Tribunal for each House of Congress, was to insure
the exercise of judicial impartiality in the disposition of election contests affecting
members of the lawmaking body. To achieve this purpose, two devices were
resorted to, namely: (a) the party having the largest number of votes, and the
party having the second largest number of votes, in the National Assembly or in
each House of Congress, were given the same number of representatives in the
Electoral Commission or Tribunal, so that they may realize that partisan
considerations could not control the adjudication of said cases, and thus be
induced to act with greater impartiality; and (b) the Supreme Court was given in
said body the same number of representatives as each one of said political
parties, so that the influence of the former may be decisive and endow said
Commission or Tribunal with judicial temper.
This is obvious from the very language of the constitutional provision under
consideration. In fact, Senator Sabido-who had moved to grant to Senator
Tañada the privilege" to make the nominations on behalf of party having the
second largest number of votes in the Senate-agrees with it. As Senator
Sumulong inquired:.
"..I suppose Your Honor will agree with me that the framers of the Constitution
precisely thought of creating this Electoral Tribunal so as to prevent the majority
from ever having a preponderant majority in the Tribunal." (Congressional
Record for the Senate, Vol. III, p. 330; emphasis supplied.).
Senator Sabido replied:.
"That is so, .." (Id., p. 330.).

Upon further interpretation, Senator Sabido said:.
".. the purpose of the creation of the Electoral Tribunal and of its composition is to
maintain a balance between the two parties and make the members of the
Supreme Court the controlling power so to speak of the Electoral Tribunal or hold
the balance of power. That is the ideal situation." (Congressional Record for the
Senate, Vol. III, p. 349; emphasis supplied.).
Senator Sumulong opined along the same line. His words were: .
"..The intention is that when the three from the majority and the three from the
minority become members of the Tribunal it is hoped that they will become aware
of their judicial functions, not to protect the protestants or the protegees. It is
hoped that they will act as judges because to decide election cases is a judicial
function. But the framers of, the Constitution besides being learned were men of
experience. They knew that even Senators like us are not angels, that we are
human beings, that if we should be chosen to go to the Electoral Tribunal no one
can say that we will entirely be free from partisan influence to favor our party, so
that in, case that hope that the three from the majority and the three from the
minority who will act as Judges should result in disappointment, in case they do
not act as judges but they go there and vote along party liner, still there is the
guarantee that they will offset each other and the result will be that the deciding
vote will reside in the hands of the three Justices who have no partisan motives
to favor either the protestees or the protestants. In other words, the whole idea is
to prevent the majority from controlling and dictating the decisions of the Tribunal
and to make sure that the decisive vote will be wielded by the Congressmen or
Senators who are members the Tribunal but will be wielded by the Justices who,
by virtue of their judicial offices, will have no partisan motives to serve, either
protestants, or protestees. That is my understanding of the intention of the
framers of the Constitution when they decided to create the Electoral Tribunal.
xxx xxx x x x.
"My idea is that the intention of the framers of the constitution in creating the
Electoral Tribunal is to insure impartially and independence in its decision, and
that is sought to be done by never allowing the majority party to control the
Tribunal, and secondly by seeing to it that the decisive vote in the Tribunal will be
left in the hands of persons who have no partisan interest or motive to favor
either protestant or protestee." (Congressional Record for the Senate, Vol. III, pp.
362-363, 365-366; emphasis supplied.).
So important in the "balance of powers" between the two political parties in the
Electoral Tribunals, that several members of the Senate questioned the right of
the party having the second largest number of votes in the Senate and, hence, of
Senator Tañada, as representative of the Citizens Party-to nominate for the
Senate Electoral Tribunal any Senator not belonging to said party. Senators Lim,
Sabido, Cea and Paredes maintained that the spirit of the Constitution would be
violated if the nominees to the Electoral Tribunals did not belong to the parties
respectively making the nominations. 10.
It is not necessary, for the purpose of this decision, to determine whether the
parties having the largest, and the second largest, number of votes in each
House may nominate, to the Electoral Tribunals, those members of Congress
who do not belong to the party nominating them. It is patent, however, that the
most vital feature of the Electoral Tribunals is the equal representation of said
parties therein, and the resulting equilibrium to be maintained by the Justices of
the Supreme Court as members of said Tribunals. In the words of the members
of the present Senate, said feature reflects the "intent" "purpose", and "spirit of
the Constitution", pursuant to which the Senate Electoral Tribunal should be

organized (Congressional Record for the Senate, pp. 330, 337, 348-9, 350, 351,
355, 358, 362-3, 364, 370, 376).
Now then, it is well settled that "the purpose of all rules or maxims as to the
construction or interpretation of statutes is to discover the true intention of the
law" (82 C. J. S., 526) and that.
"As a general rule of statutory construction, the spirit or intention of a statute

prevails over the letter thereof, and whatever is within the spirit of statute is within
the statute although it is not within the letter, while that which is within the letter,
but not within the spirit of a statute, is not within the statute; but, where the law is
free and clear from ambiguity, the letter of it is not to be disregarded on the
pretext of pursuing its spirit." (82 C. J. S., 613.).
"There is no universal rule or absolute test by which directory provisions in a

statute may in all circumstances be distinguished from those which are
mandatory. However, in the determination of this question, as of every other
question of statutory construction, the prime object is to ascertain the legislative
intent. The legislative intent must be obtained front all the surrounding
circumstances, and the determination does not depend on the form of the
statute. Consideration must be given to the entire statute, its nature, its object,
and the consequences which would result from construing it one way or the
other, and the statute must be construed in connection with other related
statutes. Words of permissive character may be given a mandatory significance
in order to effect the legislative intent, and, when the terms of a statute are such
that they cannot be made effective to the extent of giving each and all of them
some reasonable operation, without construing the statute as mandatory, such
construction should be given; .. On the other hand, the language of a statute,
however mandatory in form, may be deemed directory whenever legislative
purpose can best be carried out by such construction, and the legislative intent
does not require a mandatory construction; but the construction of mandatory
words as directory should not be lightly adopted and never where it would in fact
make a new law instead of that passed by the legislature. .. Whether a statute is
mandatory or directory depends on whether the thing directed to be done is of
the essence of the thing required, or is a mere matter of form, and what is a
matter of essence can often be determined only by judicial construction.
Accordingly, when a particular provision of a statute relates to some immaterial
matter, as to which compliance with the statute is a matter of convenience rather
than substance, or where the directions of a statute are given merely with a view
to the proper, orderly, and prompt conduct of business, it is generally regarded
as directory, unless followed by words of absolute prohibition; and a statute is
regarded as directory were no substantial rights depend on it, no injury can result
from ignoring it, and the purpose of the legislative can be accomplished in a
manner other than that prescribed, with substantially the same result. On the
other hand, a provision relating to the essence of the thing to be done, that is, to
matters of substance, is mandatory, and when a fair interpretation of a statute,
which directs acts or proceedings to be done in a certain way shows that the
legislature intended a compliance with such provision to be essential to the
validity of the act or proceeding, or when same antecedent and pre-requisite
conditions must exist prior to the exercise of power, or must be performed before
certain other powers can be exercise, the statute must be regarded as
mandatory. (Id., pp. 869-874.) (See also, Words and Phrases, Vol. 26, pp. 463-
467; emphasis supplied.).
What has been said above, relative to the conditions antecedent to, and
concomitant with, the adoption of section 11 of Article VI of the Constitution,
reveals clearly that its framers intended to prevent the majority party from
controlling the Electoral Tribunals, and that the structure thereof is founded upon
the equilibrium between the majority and the minority parties therein, with the
Justices of the Supreme Court, who are members of said Tribunals, holding the
resulting balance of power. The procedure prescribed in said provision for the
selection of members of the Electoral Tribunals is vital to the role they are called
upon to play. it constitutes the essence of said Tribunals. Hence, compliance with
said procedure is mandatory, and acts performed in violation thereof are null and
void. 11.
It is true that the application of the foregoing criterion would limit the membership
of the Senate Electoral Tribunal, in the case at bar, to seven (7), instead of nine
(9), members; but, it is conceded that the present composition of the Senate was
not foreseen by the framers of our Constitution (Congressional Record for the
Senate, Vol. III, pp. 329, 342, 349, 354, 359, 375). Furthermore, the spirit of the
law prevails over its letter, and the solution herein adopted maintains the spirit of
the Constitution, for partisan considerations can not be decisive in a tribunal
consisting of three (3) Justices of the Supreme Court, three (3) members
nominated by the majority party and either one (1) or two (2) members
nominated by the party having the second largest number of votes in the House
concerned.
Upon the other hand, what would be the result of respondents' contention if
upheld? Owing to the fact that the Citizens Party 12 has only one member in the
Upper House, Senator Tañada felt he should nominate, for the Senate Electoral
Tribunal, only said member of the Citizens Party. The same is, thus, numerically
handicapped, vis-a-vis the majority party, in said Tribunal. Obviously, Senator
Tañada did not nominate other two Senators, because, otherwise, he would
worsen the already disadvantageous position, therein, of the Citizens Party.
Indeed, by the aforementioned nomination and election of Senators Cuenco and
Delgado, if the same were sanctioned, the Nacionalista Party would have five (5)
members in the Senate Electoral Tribunal, as against one (1) member of the
Citizens Party and three members of the Supreme Court. With the absolute
majority thereby attained by the majority party in said Tribunal, the philosophy
underlying the same would be entirely upset. The equilibrium between the
political parties therein would be destroyed. What is worst, the decisive
moderating role of the Justices of the Supreme Court would be wiped out, and, in
lieu thereof, the door would be thrown wide open for the predominance of
political considerations in the determination of election protests pending before
said Tribunal, which is precisely what the fathers of our Constitution earnestly
strove to forestall. 13.
This does not imply that the honesty, integrity or impartiality of Senators Cuenco
and Delgado are being questioned. As a matter of fact, when Senator Tañada
objected to their nomination, he explicitly made of record that his opposition was
based, not upon their character, but upon the principle involved. When the
election of members of Congress to the Electoral Tribunal is made dependent
upon the nomination of the political parties above referred to, the Constitution
thereby indicates its reliance upon the method of selection thus established,
regardless of the individual qualities of those chosen therefor. Considering the
wealth of experience of the delegatesto the Convention, as lawyers of great note,
as veteran politicians and as leaders in other fields of endeavor, they could not,
and did not, ignore the fact that the Constitution must limit itself to giving general
patterns or norms of action. In connection, particularly, with the composition of
the Electoral Tribunals, they believed that, even the most well meaning
individuals often find it difficult to shake off the bias and prejudice created by
political antagonisms and to resist the demands of political exigencies, the
pressure of which is bound to increase in proportion to the degree of
predominance of the party from which it comes. As above stated, this was
confirmed by distinguished members of the present Senate. (See pp. 25-28, 33,
34, supra.).
In connection with the argument of the former Secretary of Justice to the effect
that when "there is no minority party represented in the Assembly, the necessity
for such a check by the minority disappears", the following observations of the
petitioners herein are worthy of notice:.
" Under the interpretation espoused by the respondents, the very frauds or
terrorism committed by a party would establish the legal basis for the final
destruction of minority parties in the Congress at least. Let us suppose, for
example, that in the Senate, the 15 or 16 senators with unexpired terms belong
to the party A. In the senatorial elections to fill the remaining 8 seats, all the 8
candidates of party A are proclaimed elected through alleged fraud and/or
terrorism. (The ouster of not less than 3 senators-elect in the elections held since
liberation attests to the reality of election frauds and terrorism in our country.)
There being no senator or only one senator belonging to the minority, who would
sit in judgment on the election candidates of the minority parties? According to
the contention of the respondents, it would be a Senate Electoral Tribunal made
up of three Supreme Court Justices and 5 or 6 members of the same party A
accused of fraud and terrorism. Most respectfully, we pray this Honorable Court
to reject an interpretation that would make of a democratic constitution the very
instrument by which a corrupt and ruthless party could entrench itself in power
the legislature and thus destroy democracy in the Philippines.
xxx xxx x x x.
".. When there are no electoral protests filed by the Minority party, or when the
only electoral protests filed are by candidates of the majority against members-
elect of the same majority party, there might be no objection to the statement.
But if electoral protests are filed by candidates of the minority party, it is at this
point that a need for a check on the majority party is greatest, and contrary to the
observation made in the above-quoted opinion, such a cheek is a function that
cannot be successfully exercised by the 3 Justices of the Supreme Court, for the
obvious and simple reason that they could easily be outvoted by the 6 members
of the majority party in the Tribunal.
xxx xxx x x x.
"In the case of the cited opinion of Secretary Abad Santos rendered in 1939, it,
did not appear that there were minority party candidates who were adversely
affected by the ruling of the Secretary of Justice and who could have brought a
test case to court." (Emphasis supplied.).
The defenses of waiver and estoppel set up against petitioner Tañada are
untenable. Although "an individual may waive constitutional provisions intended
for his benefit", particularly those meant for the protection of his property, and,
sometimes, even those tending "to secure his personal liberty", the power to
waive does not exist when "public policy or public morals" are involved. (11 Am.
Jur. 765; I Cooley's Constitutional Limitations, pp. 368-371). The procedure
outlined in the Constitution for the organization, of the Electoral Tribunals was
adopted in response to the demands of the common weal, and it has been held
that where a statute is founded on public policy, those to whom it applies should
not be permitted to waive its provisions" (82 C. J. S., 874). Besides, there can be
no waiver without an intent to such effect, which Senator Tañada did not have.
Again, the alleged waiver or exhaustion of his rights does not justify the exercise
thereof by a person or party, other than that to which it is vested exclusively by

the Constitution.
The rule estoppel is that "whenever a party has, by his declaration, act or
omissions, intentionally and deliberately led another to believe a particular thing
true, and to act upon such belief, he cannot, in a litigation arising out of such
declaration, act or omission, be permitted to falsify it" (Rule 69, sec. 68 [a], Rules
of Court). In the case at bar, petitioner Senator Tañada did not lead the Senate to
believe that Senator Primicias could nominate Senators Cuenco and Delgado.
On the contrary, said petitioner repeatedly asserted that his was the exclusive
right to make the nomination. He, likewise, specifically contested said nomination
of Senators Cuenco and Delgado. Again, the rule on estoppel applies to
questions of fact, not of law, about the truth of which the other party is ignorant
(see Moran's Comments on the Rules of Court, Vol. 3, pp. 490, 495). Such is not
the nature of the situation that confronted Senator Tañada and the other
members of the Senate. Lastly, the case of Zandueta vs. De la Costa (66 Phil.,
615), cited by respondents, is not in point. Judge Zandueta assumed office by
virtue of an appointment, the legality of which he later on assailed. In the case at
bar, the nomination and election of Senator Tañada as member of the Senate
Electoral Tribunal was separate, distinct and independent from the nomination
and election of Senators Cuenco and Delgado.
In view of the foregoing, we hold that the Senate may not elect, as members of
the Senate Electoral Tribunal, those Senators who have not been nominated by
the political parties specified in the Constitution; that the party having the largest
number of votes in the Senate may nominate not more than three (3) members
thereof to said Electoral Tribunal; that the party having the second largest
number of votes in the Senate has the exclusive right to nominate the other three
(3) Senators who shall sit as members in the Electoral Tribunal; that neither
these three (3) Senators, nor any of them, may be nominated by a person or
party other than the one having the second largest number of votes in the Senate
or its representative therein; that the Committee on Rules for the Senate has no
standing to validly make such nomination and that the nomination of Senators
Cuenco and Delgado by Senator Primicias, and the election of said respondents
by the Senate, as members of said Tribunal, are null and void ab initio.
As regards respondents Alfredo Cruz, Catalina Cayetano, Manuel Serapio and

Placido Reyes, we are not prepared to hold, however, that their appointments
were null and void. Although recommended by Senators Cuenco and Delgado,
who are not lawful members of the Senate Electoral Tribunal, they were
appointed by its Chairman, presumably, with the consent of the majority of the de
jure members of said body 14 or, pursuant to the Rules thereof. At any rate, as
held in Suanes vs. Chief Accountant (supra), the election of its personnel is an
internal matter falling within the jurisdiction and control of said body, and there is
every reason to believe that it will, hereafter take appropriate measures, in
relation to the four (4) respondents abovementioned, conformably with the spirit
of the Constitution and of, the decision in the case at bar.
Wherefore, judgment is hereby rendered declaring that, respondents Senators

Mariano Jesus Cuenco and Francisco A. Delgado have not been duly elected as
Members of the Senate Electoral Tribunal, that they are not entitled to act as
such and that they should be, as they are hereby, enjoined from exercising the
powers and duties of Members of said Electoral Tribunal and from acting in such
capacity in connection with Senate Electoral Case No. 4 thereof. With the
qualification stated above, the petition is dismissed, as regards respondents
Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes. Without
special pronouncement as to costs. It is so ordered.
EN BANC
G.R. No. L-44640 October 12, 1976
PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner, vs.

HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.
G.R. No. L-44684. October 12,1976
VICENTE M. GUZMAN, petitioner, vs.

COMMISSION ELECTIONS, respondent.
G.R. No. L-44714. October 12,1976
RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO

SALAPANTAN, petitioners, vs.
HONORABLE COMMISSION ON SELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.
MARTIN, J,:
The capital question raised in these prohibition suits with preliminary injunction
relates to the power of the incumbent President of the Philippines to propose
amendments to the present Constitution in the absence of the interim National
Assembly which has not been convened.
On September 2, 1976, President Ferdinand E. Marcos issued Presidential

Decree No. 991 calling for a national referendum on October 16, 1976 for the
Citizens Assemblies ("barangays") to resolve, among other things, the issues of
martial law, the I . assembly, its replacement, the powers of such replacement,
the period of its existence, the length of the period for tile exercise by the
President of his present powers.1
Twenty days after or on September 22, 1976, the President issued another
related decree, Presidential Decree No. 1031, amending the previous
Presidential Decree No. 991, by declaring the provisions of presidential Decree
No. 229 providing for the manner of voting and canvass of votes in "barangays"
(Citizens Assemblies) applicable to the national referendum-plebiscite of October
16, 1976. Quite relevantly, Presidential Decree No. 1031 repealed Section 4, of
Presidential Decree No. 991, the full text of which (Section 4) is quoted in the
footnote below.2
On the same date of September 22, 1976, the President issued Presidential
Decree No. 1033, stating the questions to be submitted to the people in the
referendum-plebiscite on October 16, 1976. The Decree recites in its "whereas"
clauses that the people's continued opposition to the convening of the National
Assembly evinces their desire to have such body abolished and replaced thru a
constitutional amendment, providing for a legislative body, which will be
submitted directly to the people in the referendum-plebiscite of October 16.
The questions ask, to wit:
(1) Do you want martial law to be continued?
(2) Whether or not you want martial law to be continued, do you approve the
following amendments to the Constitution? For the purpose of the second
question, the referendum shall have the effect of a plebiscite within the
contemplation of Section 2 of Article XVI of the Constitution.
PROPOSED AMENDMENTS:
1. There shall be, in lieu of the interim National Assembly, an interim Batasang
Pambansa. Members of the interim Batasang Pambansa which shall not be more
than 120, unless otherwise provided by law, shall include the incumbent
President of the Philippines, representatives elected from the different regions of
the nation, those who shall not be less than eighteen years of age elected by
their respective sectors, and those chosen by the incumbent President from the
members of the Cabinet. Regional representatives shall be apportioned among
the regions in accordance with the number of their respective inhabitants and on
the basis of a uniform and progressive ratio while the sectors shall be determined
by law. The number of representatives from each region or sector and the,
manner of their election shall be prescribed and regulated by law.
2. The interim Batasang Pambansa shall have the same powers and its
members shall have the same functions, responsibilities, rights, privileges, and
disqualifications as the interim National Assembly and the regular National
Assembly and the members thereof. However, it shall not exercise the power
provided in Article VIII, Section 14(l) of the Constitution.
3. The incumbent President of the Philippines shall, within 30 days from the
election and selection of the members, convene the interim Batasang Pambansa
and preside over its sessions until the Speaker shall have been elected. The
incumbent President of the Philippines shall be the Prime Minister and he shall
continue to exercise all his powers even after the interim Batasang Pambansa is
organized and ready to discharge its functions and likewise he shall continue to
exercise his powers and prerogatives under the nineteen hundred and thirty five.
Constitution and the powers vested in the President and the Prime Minister under
this Constitution.
4. The President (Prime Minister) and his Cabinet shall exercise all the powers
and functions, and discharge the responsibilities of the regular President (Prime
Minister) and his Cabinet, and shall be subject only to such disqualifications as
the President (Prime Minister) may prescribe. The President (Prime Minister) if
he so desires may appoint a Deputy Prime Minister or as many Deputy Prime
Ministers as he may deem necessary.
5. The incumbent President shall continue to exercise legislative powers until

martial law shall have been lifted.
6. Whenever in the judgment of the President (Prime Minister), there exists a

grave emergency or a threat or imminence thereof, or whenever the interim
Batasang Pambansa or the regular National Assembly fails or is unable to act
adequately on any matter for any reason that in his judgment requires immediate
action, he may, in order to meet the exigency, issue the necessary decrees,
orders or letters of instructions, which shall form part of the law of the land.
7. The barangays and sanggunians shall continue as presently constituted but

their functions, powers, and composition may be altered by law.
Referenda conducted thru the barangays and under the Supervision of the
Commission on Elections may be called at any time the government deems it
necessary to ascertain the will of the people regarding any important matter
whether of national or local interest.
8. All provisions of this Constitution not inconsistent with any of these

amendments shall continue in full force and effect.
9. These amendments shall take effect after the incumbent President shall have
proclaimed that they have been ratified by I majority of the votes cast in the
referendum-plebiscite."
The Commission on Elections was vested with the exclusive supervision and
control of the October 1976 National Referendum-Plebiscite.
On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD,

father and son, commenced L-44640 for Prohibition with Preliminary Injunction
seeking to enjoin the Commission on Elections from holding and conducting the
Referendum Plebiscite on October 16; to declare without force and effect
Presidential Decree Nos. 991 and 1033, insofar as they propose amendments to
the Constitution, as well as Presidential Decree No. 1031, insofar as it directs the
Commission on Elections to supervise, control, hold, and conduct the
Referendum-Plebiscite scheduled on October 16, 1976.
Petitioners contend that under the 1935 and 1973 Constitutions there is no grant
to the incumbent President to exercise the constituent power to propose
amendments to the new Constitution. As a consequence, the Referendum-
Plebiscite on October 16 has no constitutional or legal basis.
On October 5, 1976, the Solicitor General filed the comment for respondent
Commission on Elections, The Solicitor General principally maintains that
petitioners have no standing to sue; the issue raised is political in nature, beyond
judicial cognizance of this Court; at this state of the transition period, only the
incumbent President has the authority to exercise constituent power; the
referendum-plebiscite is a step towards normalization.
On September 30, 1976, another action for Prohibition with Preliminary

Injunction, docketed as L-44684, was instituted by VICENTE M. GUZMAN, a
delegate to the 1971 Constitutional Convention, asserting that the power to
propose amendments to, or revision of the Constitution during the transition
period is expressly conferred on the interim National Assembly under Section 16,
Article XVII of the Constitution.3
Still another petition for Prohibition with Preliminary Injunction was filed on
October 5, 1976 by RAUL M. GONZALES, his son RAUL, JR., and ALFREDO
SALAPANTAN, docketed as L- 44714, to restrain the implementation of
Presidential Decrees relative to the forthcoming Referendum-Plebiscite of
October 16.
These last petitioners argue that even granting him legislative powers under
Martial Law, the incumbent President cannot act as a constituent assembly to
propose amendments to the Constitution; a referendum-plebiscite is untenable
under the Constitutions of 1935 and 1973; the submission of the proposed
amendments in such a short period of time for deliberation renders the plebiscite
a nullity; to lift Martial Law, the President need not consult the people via
referendum; and allowing 15-.year olds to vote would amount to an amendment
of the Constitution, which confines the right of suffrage to those citizens of the
Philippines 18 years of age and above.
We find the petitions in the three entitled cases to be devoid of merit.
I
Justiciability of question raised.
1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C.

Sanidad and Pablito V. Sanidad) possess locus standi to challenge the
constitutional premise of Presidential Decree Nos. 991, 1031, and 1033. It is now
an ancient rule that the valid source of a stature Presidential Decrees are of such
nature-may be contested by one who will sustain a direct injuries as a in result of
its enforcement. At the instance of taxpayers, laws providing for the
disbursement of public funds may be enjoined, upon the theory that the
expenditure of public funds by an officer of the State for the purpose of executing
an unconstitutional act constitutes a misapplication of such funds. 4 The breadth
of Presidential Decree No. 991 carries all appropriation of Five Million Pesos for
the effective implementation of its purposes. 5 Presidential Decree No. 1031
appropriates the sum of Eight Million Pesos to carry out its provisions. 6 The
interest of the aforenamed petitioners as taxpayers in the lawful expenditure of
these amounts of public money sufficiently clothes them with that personality to
litigate the validity of the Decrees appropriating said funds. Moreover, as regards
taxpayer's suits, this Court enjoys that open discretion to entertain the same or
not. 7 For the present case, We deem it sound to exercise that discretion
affirmatively so that the authority upon which the disputed Decrees are
predicated may be inquired into.
2. The Solicitor General would consider the question at bar as a pure political
one, lying outside the domain of judicial review. We disagree. The amending
process both as to proposal and ratification, raises a judicial question. 8This is especially
true in cases where the power of the Presidency to initiate the of normally exercised by the legislature, is seriously doubted. Under the terms
of the 1973 Constitution, the power to propose amendments o the constitution resides in the interim National Assembly in the period of
transition (See. 15, Transitory provisions). After that period, and the regular National Assembly in its active session, the power to propose
amendments becomes ipso facto the prerogative of the regular National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973 constitution). The
normal course has not been followed. Rather than calling the National Assembly to constitute itself into a constituent assembly the incumbent
President undertook the proposal of amendments and submitted the proposed amendments thru Presidential Decree 1033 to the people in a
Referendum-Plebiscite on October 16. Unavoidably, the regularity regularity of the procedure for amendments, written in lambent words in
the very Constitution sought to be amended, raises a contestable issue. The implementing Presidential Decree Nos. 991, 1031, and 1033,
which commonly purport to have the force and effect of legislation are assailed as invalid, thus the issue of the validity of said Decrees is
plainly a justiciable one, within the competence of this Court to pass upon. Section 2 (2), Article X of the new Constitution provides: "All cases
involving the constitutionality of a treaty, executive agreement, or law may shall be heard and decided by the Supreme Court en banc and no
treaty, executive agreement, or law may be declared unconstitutional without the concurrence of at least ten Members ..... " Th e Supreme
Court has the last word in the construction not only of treaties and statutes, but also of the Constitution itself The amending, like all other
powers organized in the Constitution, is in form a delegated and hence a limited power, so that the Supreme Court is vested w ith that
authorities to determine whether that power has been discharged within its limits.
Political questions are neatly associated with the wisdom, of the legality of a
particular act. Where the vortex of the controversy refers to the legality or validity
of the contested act, that matter is definitely justiciable or non-political. What is in
the heels of the Court is not the wisdom of the act of the incumbent President in
proposing amendments to the Constitution, but his constitutional authority to
perform such act or to assume the power of a constituent assembly. Whether the
amending process confers on the President that power to propose amendments
is therefore a downright justiciable question. Should the contrary be found, the
actuation of the President would merely be a brutum fulmen. If the Constitution
provides how it may be amended, the judiciary as the interpreter of that
Constitution, can declare whether the procedure followed or the authority
assumed was valid or not.10
We cannot accept the view of the Solicitor General, in pursuing his theory of non-
justiciability, that the question of the President's authority to propose
amendments and the regularity of the procedure adopted for submission of the
proposal to the people ultimately lie in the judgment of the A clear Descartes
fallacy of vicious circle. Is it not that the people themselves, by their sovereign
act, provided for the authority and procedure for the amending process when
they ratified the present Constitution in 1973? Whether, therefore, the
constitutional provision has been followed or not is the proper subject of inquiry,
not by the people themselves of course who exercise no power of judicial but by
the Supreme Court in whom the people themselves vested that power, a power
which includes the competence to determine whether the constitutional norms for
amendments have been observed or not. And, this inquiry must be done a prior
not a posterior i.e., before the submission to and ratification by the people.
Indeed, the precedents evolved by the Court or, prior constitutional cases
underline the preference of the Court's majority to treat such issue of Presidential
role in the amending process as one of non-political impression. In the Plebiscite
Cases, 11 the contention of the Solicitor General that the issue on the legality of
Presidential Decree No. 73 "submitting to the Pilipino people (on January 15,
1973) for ratification or rejection the Constitution of the Republic of the
Philippines proposed by the 1971 Constitutional Convention and appropriating
fund s therefore "is a political one, was rejected and the Court unanimously
considered the issue as justiciable in nature. Subsequently in the Ratification
Cases12 involving the issue of whether or not the validity of Presidential
Proclamation No. 1102. announcing the Ratification by the Filipino people of the
constitution proposed by the 1971 Constitutional Convention," partakes of the
nature of a political question, the affirmative stand of' the Solicitor General was
dismissed, the Court ruled that the question raised is justiciable. Chief Justice
Concepcion, expressing the majority view, said, Thus, in the aforementioned
plebiscite cases, We rejected the theory of the respondents therein that the
question whether Presidential Decree No. 73 calling a plebiscite to be held on
January 15, 1973, for the ratification or rejection of the proposed new
Constitution, was valid or not, was not a proper subject of judicial inquiry
because, they claimed, it partook of a political nature, and We unanimously
declared that the issue was a justiciable one. With Identical unanimity. We
overruled the respondent's contention in the 1971 habeas corpus cases,
questioning Our authority to determine the constitutional sufficiency of the factual
bases of the Presidential proclamation suspending the privilege of the writ of
habeas corpus on August 21, 1971, despite the opposite view taken by this Court
in Barcelon vs. Baker and Montenegro vs. Castaneda, insofar as it adhered to
the former case, which view We, accordingly, abandoned and refused to apply.
For the same reason, We did not apply and expressly modified, in Gonzales vs.
Commission on Elections, the political-question theory adopted in Mabanag vs.
Lopez Vito." 13 The return to Barcelon vs. Baker and Mabanag vs. Lopez Vito,
urged by the Solicitor General, was decisively refused by the Court. Chief Justice
Concepcion continued: "The reasons adduced in support thereof are, however,
substantially the same as those given in support on the political question theory
advanced in said habeas corpus and plebiscite cases, which were carefully
considered by this Court and found by it to be legally unsound and
constitutionally untenable. As a consequence. Our decisions in the
aforementioned habeas corpus cases partakes of the nature and effect of a stare
decisis which gained added weight by its virtual reiteration."
II
The amending process as laid out
in the new Constitution.
1. Article XVI of the 1973 Constitution on Amendments ordains:
SECTION 1. (1) Any amendment to, or revision of, this Constitution

may be proposed by the National Assembly upon a vote of three-
fourths of all its Members, or by a constitutional convention. (2) The
National Assembly may, by a vote of two-thirds of all its Members,
call a constitutional convention or, by a majority vote of all its
Members, submit the question of calling such a convention to the
electorate in an election.
SECTION 2. Any amendment to, or revision of, this Constitution

shall be valid when ratified by a majority of the votes cast in a
plebiscite which shall be held not later than three months after the
approval of such amendment or revision.
In the present period of transition, the interim National Assembly instituted in the
Transitory Provisions is conferred with that amending power. Section 15 of the
Transitory Provisions reads:
SECTION 15. The interim National Assembly, upon special call by

the interim Prime Minister, may, by a majority vote of all its
Members, propose amendments to this Constitution. Such
amendments shall take effect when ratified in accordance with
Article Sixteen hereof.
There are, therefore, two periods contemplated in the constitutional life of the
nation, i.e., period of normalcy and period of transition. In times of normally, the
amending process may be initiated by the proposals of the (1) regular National
Assembly upon a vote of three-fourths of all its members; or (2) by a
Constitutional Convention called by a vote of two-thirds of all the Members of the
National Assembly. However the calling of a Constitutional Convention may be
submitted to the electorate in an election voted upon by a majority vote of all the
members of the National Assembly. In times of transition, amendments may be
proposed by a majority vote of all the Members of the National Assembly upon
special call by the interim Prime Minister,.
2. This Court in Aquino v. COMELEC," had already settled that the incumbent
President is vested with that prerogative of discretion as to when he shall initially
convene the interim National Assembly. Speaking for the majority opinion in that
case, Justice Makasiar said: "The Constitutional Convention intended to leave to
the President the determination of the time when he shall initially convene the
interim National Assembly, consistent with the prevailing conditions of peace and
order in the country." Concurring, Justice Fernandez, himself a member of that
Constitutional Convention, revealed: "(W)hen the Delegates to the Constitutional
Convention voted on the Transitory Provisions, they were aware of the fact that
under the same, the incumbent President was given the discretion as to when he
could convene the interim National Assembly; it was so stated plainly by the
sponsor, Delegate Yaneza; as a matter of fact, the proposal that it be convened
'immediately', made by Delegate Pimentel (V) was rejected. The President's
decision to defer the convening of the interim National Assembly soon found
support from the people themselves. In the plebiscite of January 10-15, 1973, at
which the ratification of the 1973 Constitution was submitted, the people voted
against the convening of the interim National Assembly. In the referendum of July
24, 1973, the Citizens Assemblies ("bagangays") reiterated their sovereign will to
withhold the convening of the interim National Assembly. Again, in the
referendum of February 27, 1975, the proposed question of whether the interim
National Assembly shall be initially convened was eliminated, because some of
the members of Congress and delegates of the Constitutional Convention, who
were deemed automatically members of the I interim National Assembly, were
against its inclusion since in that referendum of January, 1973, the people had
already resolved against it.
3. In sensu strictiore, when the legislative arm of the state undertakes the
proposals of amendment to a Constitution, that body is not in the usual function
of lawmaking. lt is not legislating when engaged in the amending process.16
Rather, it is exercising a peculiar power bestowed upon it by the fundamental
charter itself. In the Philippines, that power is provided for in Article XVI of the
1973 Constitution (for the regular National Assembly) or in Section 15 of the
Transitory Provisions (for the National Assembly). While ordinarily it is the

business of the legislating body to legislate for the nation by virtue of
constitutional conferment amending of the Constitution is not legislative in
character. In political science a distinction is made between constitutional content
of an organic character and that of a legislative character'. The distinction,
however, is one of policy, not of law.17 Such being the case, approval of the
President of any proposed amendment is a misnomer 18 The prerogative of the
President to approve or disapprove applies only to the ordinary cases of
legislation. The President has nothing to do with proposition or adoption of
amendments to the Constitution. 19
III
Concentration of Powers
in the President during
crisis government.
1. In general, the governmental powers in crisis government the Philippines is a

crisis government today are more or less concentrated in the
President. 20 According to Rossiter, "(t)he concentration of government power in a
democracy faced by an emergency is a corrective to the crisis inefficiencies
inherent in the doctrine of the separation of powers. In most free states it has
generally been regarded as imperative that the total power of the government be
parceled out among three mutually independent branches executive, legislature,
and judiciary. It is believed to be destructive of constitutionalism if any one
branch should exercise any two or more types of power, and certainly a total
disregard of the separation of powers is, as Madison wrote in the Federalist, No.
47, 'the very definition of tyranny.' In normal times the separation of powers forms
a distinct obstruction to arbitrary governmental action. By this same token, in
abnormal times it may form an insurmountable barrier to a decisive emergency
action in behalf of the state and its independent existence. There are moments in
the life of any government when all powers must work together in unanimity of
purpose and action, even if this means the temporary union of executive,
legislative, and judicial power in the hands of one man. The more complete the
separation of powers in a constitutional system, the more difficult and yet the
more necessary will be their fusion in time of crisis. This is evident in a
comparison of the crisis potentialities of the cabinet and presidential systems of
government. In the former the all-important harmony of legislature and executive
is taken for granted; in the latter it is neither guaranteed nor to be to confidently
expected. As a result, cabinet is more easily established and more trustworthy
than presidential dictatorship. The power of the state in crisis must not only be
concentrated and expanded; it must also be freed from the normal system of
constitutional and legal limitations. 21 John Locke, on the other hand, claims for
the executive in its own right a broad discretion capable even of setting aside the
ordinary laws in the meeting of special exigencies for which the legislative power
had not provided. 22 The rationale behind such broad emergency powers of the
Executive is the release of the government from "the paralysis of constitutional
restrains" so that the crisis may be ended and normal times restored.
2. The presidential exercise of legislative powers in time of martial law is now a

conceded valid at. That sun clear authority of the President is saddled on Section
3 (pars. 1 and 2) of the Transitory Provisions, thus:23
The incumbent President of the Philippines shall initially convene the

interim National Assembly and shall preside over its sessions until
the interim Speaker shall have been elected. He shall continue to
exercise his powers and prerogatives under the nineteen hundred

and thirty-five Constitution and the powers vested in the President
and the Prime Minister under this Constitution until the calls upon the
interim National Assembly to elect the interim President and the
interim Prime Minister, who shall then exercise their respective
powers vested by this Constitution.
All proclamations, orders, decrees, instructions, and acts

promulgated, issued, or done by the incumbent President shall be
part of the law of the land, and shall remain valid, binding, and
effective even after lifting of martial law or the ratification of this
Constitution, unless modified, revoked, or superseded by
subsequent proclamations, orders, decrees, instructions, or other
acts of the incumbent President, or unless expressly and explicitly
modified or repealed by the regular National Assembly.
"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention

delegate, "that the Constitutional Convention, while giving to the President the
discretion when to call the interim National Assembly to session, and knowing
that it may not be convened soon, would create a vacuum in the exercise of
legislative powers. Otherwise, with no one to exercise the lawmaking powers,
there would be paralyzation of the entire governmental
machinery." 24 Paraphrasing Rossiter, this is an extremely important factor in any
constitutional dictatorship which extends over a period of time. The separation of
executive and legislature ordained in the Constitution presents a distinct
obstruction to efficient crisis government. The steady increase in executive power
is not too much a cause for as the steady increase in the magnitude and
complexity of the problems the President has been called upon by the Filipino
people to solve in their behalf, which involve rebellion, subversion, secession,
recession, inflation, and economic crisis-a crisis greater than war. In short, while
conventional constitutional law just confines the President's power as
Commander-in-Chief to the direction of the operation of the national forces, yet
the facts of our political, social, and economic disturbances had convincingly
shown that in meeting the same, indefinite power should be attributed to tile
President to take emergency measures 25
IV
Authority of the incumbent
President t to propose
amendments to the Constitution.
1. As earlier pointed out, the power to legislate is constitutionally consigned to

the interim National Assembly during the transition period. However, the initial
convening of that Assembly is a matter fully addressed to the judgment of the
incumbent President. And, in the exercise of that judgment, the President opted
to defer convening of that body in utter recognition of the people's preference.
Likewise, in the period of transition, the power to propose amendments to the
Constitution lies in the interim National Assembly upon special call by the
President (See. 15 of the Transitory Provisions). Again, harking to the dictates of
the sovereign will, the President decided not to call the interim National
Assembly. Would it then be within the bounds of the Constitution and of law for
the President to assume that constituent power of the interim Assembly vis-a-vis
his assumption of that body's legislative functions? The answer is yes. If the
President has been legitimately discharging the legislative functions of the interim
Assembly, there is no reason why he cannot validly discharge the function of that
Assembly to propose amendments to the Constitution, which is but adjunct,

although peculiar, to its gross legislative power. This, of course, is not to say that
the President has converted his office into a constituent assembly of that nature
normally constituted by the legislature. Rather, with the interim National
Assembly not convened and only the Presidency and the Supreme Court in
operation, the urges of absolute necessity render it imperative upon the
President to act as agent for and in behalf of the people to propose amendments
to the Constitution. Parenthetically, by its very constitution, the Supreme Court
possesses no capacity to propose amendments without constitutional infractions.
For the President to shy away from that actuality and decline to undertake the
amending process would leave the governmental machineries at a stalemate or
create in the powers of the State a destructive vacuum, thereby impeding the
objective of a crisis government "to end the crisis and restore normal times." In
these parlous times, that Presidential initiative to reduce into concrete forms the
constant voices of the people reigns supreme. After all, constituent assemblies or
constitutional conventions, like the President now, are mere agents of the
people .26
2. The President's action is not a unilateral move. As early as the referendums of

January 1973 and February 1975, the people had already rejected the calling of
the interim National Assembly. The Lupong Tagapagpaganap of the Katipunan
ng mga Sanggunian, the Pambansang Katipunan ng mga Barangay, and the
Pambansang Katipunan ng mga Barangay, representing 42,000 barangays,
about the same number of Kabataang Barangay organizations, Sanggunians in
1,458 municipalities, 72 provinces, 3 sub-provinces, and 60 cities had informed
the President that the prevailing sentiment of the people is for the abolition of the
interim National Assembly. Other issues concerned the lifting of martial law and
amendments to the Constitution .27 The national organizations of Sangguniang Bayan presently proposed to settle
the issues of martial law, the interim Assembly, its replacement, the period of its existence, the length of the period for the exercise by the
President of its present powers in a referendum to be held on October 16 .28 The Batasang Bayan (legislative council) created under
Presidential Decree 995 of September 10, 1976, composed of 19 cabinet members, 9 officials with cabinet rank, 91 members of the Lupong
Tagapagpaganap (executive committee) of the Katipunan ng mga Sangguniang Bayan voted in session to submit directly to the people in a
plebiscite on October 16, the previously quoted proposed amendments to the Constitution, including the issue of martial law .29 Similarly, the
"barangays" and the "sanggunians" endorsed to the President the submission of the proposed amendments to the people on October 16. All
the foregoing led the President to initiate the proposal of amendments to the Constitution and the subsequent issuance of Presidential
Decree No, 1033 on September 22, 1976 submitting the questions (proposed amendments) to the people in the National Referendum-
Plebiscite on October 16.
The People is Sovereign
1. Unlike in a federal state, the location of sovereignty in a unitary state is easily

seen. In the Philippines, a republican and unitary state, sovereignty "resides in
the people and all government authority emanates from them .30 In its fourth meaning, Savigny
would treat people as "that particular organized assembly of individuals in which, according to the Constitution, the highest power
exists." 31 This is the concept of popular sovereignty. It means that the constitutional legislator, namely the people, is sovereign 32 In
consequence, the people may thus write into the Constitution their convictions on any subject they choose in the absence of express
constitutional prohibition. 33 This is because, as Holmes said, the Constitution "is an experiment, as all life is all experiment."34 "The
necessities of orderly government," wrote Rottschaefer, "do not require that one generation should be permitted to permanentl y fetter all
future generations." A constitution is based, therefore, upon a self-limiting decision of the people when they adopt it. 35
2. The October 16 referendum-plebiscite is a resounding call to the people to

exercise their sovereign power as constitutional legislator. The proposed
amendments, as earlier discussed, proceed not from the thinking of a single
man. Rather, they are the collated thoughts of the sovereign will reduced only
into enabling forms by the authority who can presently exercise the powers of the
government. In equal vein, the submission of those proposed amendments and
the question of martial law in a referendum-plebiscite expresses but the option of
the people themselves implemented only by the authority of the President.
Indeed, it may well be said that the amending process is a sovereign act,
although the authority to initiate the same and the procedure to be followed
reside somehow in a particular body.
VI
Referendum-Plebiscite not
rendered nugatory by the
participation of the 15-year olds.
1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you

want martial law to be continued? - is a referendum question, wherein the 15-
year olds may participate. This was prompted by the desire of the Government to
reach the larger mas of the people so that their true pulse may be felt to guide
the President in pursuing his program for a New Order. For the succeeding
question on the proposed amendments, only those of voting age of 18 years may
participate. This is the plebiscite aspect, as contemplated in Section 2, Article
XVI of the new Constitution. 36 On this second question, it would only be the votes
of those 18 years old and above which will have valid bearing on the results. The
fact that the voting populace are simultaneously asked to answer the referendum
question and the plebiscite question does not infirm the referendum-plebiscite.
There is nothing objectionable in consulting the people on a given issue, which is
of current one and submitting to them for ratification of proposed constitutional
amendments. The fear of commingled votes (15-year olds and 18-year olds
above) is readily dispelled by the provision of two ballot boxes for every barangay
center, one containing the ballots of voters fifteen years of age and under
eighteen, and another containing the ballots of voters eighteen years of age and
above. 37 The ballots in the ballot box for voters fifteen years of age and under
eighteen shall be counted ahead of the ballots of voters eighteen years and
above contained in another ballot box. And, the results of the referendum-
plebiscite shall be separately prepared for the age groupings, i.e., ballots
contained in each of the two boxes.38
2. It is apt to distinguish here between a "referendum" and a "plebiscite." A

"referendum" is merely consultative in character. It is simply a means of
assessing public reaction to the given issues submitted to the people foe their
consideration, the calling of which is derived from or within the totality of the
executive power of the President.39 It is participated in by all citizens from the age
of fifteen, regardless of whether or not they are illiterates, feeble-minded, or ex-
convicts .40 A "plebiscite," on the other hand, involves the constituent act of those
"citizens of the Philippines not otherwise disqualified by law, who are eighteen
years of age or over, and who shall have resided in the Philippines for at least
one year and in the place wherein they propose to vote for at least six months
preceding the election Literacy, property or any other substantive requirement is
not imposed. It is generally associated with the amending process of the
Constitution, more particularly, the ratification aspect.
VII
1. There appeals to be no valid basis for the claim that the regime of martial law
stultifies in main the freedom to dissent. That speaks of a bygone fear. The
martial law regime which, in the observation of Justice Fernando, 41 is impressed
with a mild character recorded no State imposition for a muffled voice. To be
sure, there are restraints of the individual liberty, but on certain grounds no total
suppression of that liberty is aimed at. The for the referendum-plebiscite on
October 16 recognizes all the embracing freedoms of expression and assembly
The President himself had announced that he would not countenance any
suppression of dissenting views on the issues, as he is not interested in winning
a "yes" or "no" vote, but on the genuine sentiment of the people on the issues at
hand. 42 Thus, the dissenters soon found their way to the public forums, voicing
out loud and clear their adverse views on the proposed amendments and even
(in the valid ratification of the 1973 Constitution, which is already a settled
matter.43 Even government employees have been held by the Civil Service
Commission free to participate in public discussion and even campaign for their
stand on the referendum-plebiscite issues.44
VIII
Time for deliberation
is not short.
1. The period from September 21 to October 16 or a period of 3 weeks is not too

short for free debates or discussions on the referendum-plebiscite issues. The
questions are not new. They are the issues of the day. The people have been
living with them since the proclamation of martial law four years ago. The
referendums of 1973 and 1975 carried the same issue of martial law. That
notwithstanding, the contested brief period for discussion is not without
counterparts in previous plebiscites for constitutional amendments. Justice
Makasiar, in the Referendum Case, recalls: "Under the old Society, 15 days were
allotted for the publication in three consecutive issues of the Official Gazette of
the women's suffrage amendment to the Constitution before the scheduled
plebiscite on April 30, 1937 (Com. Act No. 34). The constitutional amendment to
append as ordinance the complicated Tydings-Kocialskowski was published in
only three consecutive issues of the Official Gazette for 10 days prior to the
scheduled plebiscite (Com. Act 492). For the 1940 Constitutional amendments
providing for the bicameral Congress, the reelection of the President and Vice
President, and the creation of the Commission on Elections, 20 days of
publication in three consecutive issues of the Official Gazette was fixed (Com Act
No. 517). And the Parity Amendment, an involved constitutional amendment
affecting the economy as well as the independence of the Republic was
publicized in three consecutive issues of the Official Gazette for 20 days prior to
the plebiscite (Rep. Act No. 73)."45
2. It is worthy to note that Article XVI of the Constitution makes no provision as to

the specific date when the plebiscite shall be held, but simply states that it "shall
be held not later than three months after the approval of such amendment or
revision." In Coleman v. Miller, 46 the United States Supreme court held that this
matter of submission involves "an appraisal of a great variety of relevant
conditions, political, social and economic," which "are essentially political and not
justiciable." The constituent body or in the instant cases, the President, may fix
the time within which the people may act. This is because proposal and
ratification are not treated as unrelated acts, but as succeeding steps in a single
endeavor, the natural inference being that they are not to be widely separated in
time; second, it is only when there is deemed to be a necessity therefor that
amendments are to be proposed, the reasonable implication being that when
proposed, they are to be considered and disposed of presently, and third,
ratification is but the expression of the approbation of the people, hence, it must
be done contemporaneously. 47 In the words of Jameson, "(a)n alteration of the
Constitution proposed today has relation to the sentiment and the felt needs of
today, and that, if not ratified early while that sentiment may fairly be supposed to
exist. it ought to be regarded as waived, and not again to be voted upon, unless
a second time proposed by proper body
IN RESUME
The three issues are

1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031

and 1033 political or justiciable?
2. During the present stage of the transition period, and under, the environmental
circumstances now obtaining, does the President possess power to propose
amendments to the Constitution as well as set up the required machinery and
prescribe the procedure for the ratification of his proposals by the people?
3. Is the submission to the people of the proposed amendments within the time
frame allowed therefor a sufficient and proper submission?
Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices
Enrique M. Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia Munoz
Palma, Hermogenes Concepcion Jr. and Ruperto G. Martin are of the view that
the question posed is justiciable, while Associate Justices Felix V. Makasiar,
Felix Q. Antonio and Ramon C. Aquino hold the view that the question is political.
Upon the second issue, Chief Justice Castro and Associate Justices Barredo,
Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted in the affirmative,
while Associate Justices Teehankee and Munoz Palma voted in the negative.
Associate Justice Fernando, conformably to his concurring and dissenting
opinion in Aquino vs. Enrile (59 SCRA 183), specifically dissents from the
proposition that there is concentration of powers in the Executive during periods
of crisis, thus raising serious doubts as to the power of the President to propose
amendments.
Upon the third issue, Chief Justice Castro and Associate Justices Barredo,
Makasiar, Aquino, Concepcion Jr. and Martin are of the view that there is a
sufficient and proper submission of the proposed amendments for ratification by
the people. Associate Justices Barredo and Makasiar expressed the hope,
however that the period of time may be extended. Associate Justices Fernando,
Makasiar and Antonio are of the view that the question is political and therefore
beyond the competence and cognizance of this Court, Associate Justice
Fernando adheres to his concurrence in the opinion of Chief Justice Concepcion
in Gonzales vs. COMELEC (21 SCRA 774).Associate Justices Teehankee and
MUNOZ Palma hold that prescinding from the President's lack of authority to
exercise the constituent power to propose the amendments, etc., as above
stated, there is no fair and proper submission with sufficient information and time
to assure intelligent consent or rejection under the standards set by this Court in
the controlling cases of Gonzales, supra, and Tolentino vs. COMELEC (41 SCRA
702).
Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino,
Concepcion Jr. and Martin voted to dismiss the three petitions at bar. For
reasons as expressed in his separate opinion, Associate Justice Fernando
concurs in the result. Associate Justices Teehankee and Munoz Palma voted to
grant the petitions.
ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby
dismissed. This decision is immediately executory.
SO ORDERED.
EN BANC
G.R. No. 86344 December 21, 1989
REP. RAUL A. DAZA, petitioner, vs.

REP. LUIS C. SINGSON and HON. RAOUL V. VICTORINO IN THE LATTER'S
CAPACITY AS SECRETARY OF THE COMMISSION ON
APPOINTMENTS, respondent.
CRUZ, J.:
After the congressional elections of May 11, 1987, the House of Representatives
proportionally apportioned its twelve seats in the Commission on Appointments
among the several political parties represented in that chamber, including the
Lakas ng Bansa, the PDP-Laban, the NP-Unido, the Liberal Party, and the KBL,
in accordance with Article VI, Section 18, of the Constitution. Petitioner Raul A.
Daza was among those chosen and was listed as a representative of the Liberal
Party. 1
On September 16, 1988, the Laban ng Demokratikong Pilipino was reorganized,

resulting in a political realignment in the House of Representatives. Twenty four
members of the Liberal Party formally resigned from that party and joined the
LDP, thereby swelling its number to 159 and correspondingly reducing their
former party to only 17 members. 2
On the basis of this development, the House of Representatives revised its

representation in the Commission on Appointments by withdrawing the seat
occupied by the petitioner and giving this to the newly-formed LDP. On
December 5, 1988, the chamber elected a new set of representatives consisting
of the original members except the petitioner and including therein respondent
Luis C. Singson as the additional member from the LDP. 3
The petitioner came to this Court on January 13, 1989, to challenge his removal
from the Commission on Appointments and the assumption of his seat by the
respondent. Acting initially on his petition for prohibition and injunction with
preliminary injunction, we issued a temporary restraining order that same day to
prevent both the petitioner and the respondent from serving in the Commission
on Appointments.4
Briefly stated, the contention of the petitioner is that he cannot be removed from
the Commission on Appointments because his election thereto is permanent
under the doctrine announced in Cunanan v. Tan. 5 His claim is that the
reorganization of the House representation in the said body is not based on a
permanent political realignment because the LDP is not a duly registered political
party and has not yet attained political stability.
For his part, the respondent argues that the question raised by the petitioner is
political in nature and so beyond the jurisdiction of this Court. He also maintains
that he has been improperly impleaded, the real party respondent being the
House of Representatives which changed its representation in the Commission
on Appointments and removed the petitioner. Finally, he stresses that nowhere in
the Constitution is it required that the political party be registered to be entitled to
proportional representation in the Commission on Appointments.
In addition to the pleadings filed by the parties, a Comment was submitted by the
Solicitor General as amicus curiae in compliance with an order from the Court.
At the core of this controversy is Article VI, Section 18, of the Constitution
providing as follows:
Sec. 18. There shall be a Commission on Appointments consisting

of the President of the Senate, as ex officio Chairman, twelve
Senators and twelve Members of the House of Representatives,
elected by each House on the basis of proportional representation
from the political parties and parties or organizations registered
under the party-list system represented therein. The Chairman of the
Commission shall not vote, except in case of a tie. The Commission
shall act on all appointments submitted to it within thirty session days
of the Congress from their submission. The Commission shall rule
by a majority vote of all the Members.
Ruling first on the jurisdictional issue, we hold that, contrary to the respondent's
assertion, the Court has the competence to act on the matter at bar. Our finding
is that what is before us is not a discretionary act of the House of
Representatives that may not be reviewed by us because it is political in nature.
What is involved here is the legality, not the wisdom, of the act of that chamber in
removing the petitioner from the Commission on Appointments. That is not a
political question because, as Chief Justice Concepcion explained in Tanada v.
Cuenco. 6
... the term "political question" connotes, in legal parlance, what it

means in ordinary parlance, namely, a question of policy. In other
words, ... it refers "to those questions which, under the Constitution,
are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the
Legislature or executive branch of the Government." It is concerned
with issues dependent upon the wisdom, not legality, of a particular
measure.
In the aforementioned case, the Court was asked by the petitioners therein to
annul the election of two members of the Senate Electoral Tribunal of that
chamber, on the ground that they had not been validly nominated. The Senate
then consisted of 23 members from the Nacionalista Party and the petitioner as
the lone member of the Citizens Party. Senator Lorenzo M. Tanada nominated
only himself as the minority representative in the Tribunal, whereupon the
majority elected Senators Mariano J. Cuenco. and Francisco Delgado, from its
own ranks, to complete the nine-man composition of the Tribunal as provided for
in the 1935 Constitution. The petitioner came to this Court, contending that under
Article VI, Section 11, of that Charter, the six legislative members of the Tribunal
were to be chosen by the Senate, "three upon nomination of the party having the
largest number of votes and three of the party having the second largest number
of votes therein." As the majority party in the Senate, the Nacionalista Party could
nominate only three members and could not also fill the other two seats
pertaining to the minority.
By way of special and affirmative defenses, the respondents contended inter alia
that the subject of the petition was an internal matter that only the Senate could
resolve. The Court rejected this argument, holding that what was involved was
not the wisdom of the Senate in choosing the respondents but the legality of the
choice in light of the requirement of the Constitution. The petitioners were
questioning the manner of filling the Tribunal, not the discretion of the Senate in
doing so. The Court held that this was a justiciable and not a political question,
thus:
Such is not the nature of the question for determination in the

present case. Here, we are called upon to decide whether the
election of Senators Cuenco and Delgado by the Senate, as
members of the Senate Electoral Tribunal, upon nomination by
Senator Primicias-member and spokesman of the party having the
largest number of votes in the Senate-behalf of its Committee on
Rules, contravenes the constitutional mandate that said members of
the Senate Electoral Tribunal shall be chosen "upon nomination ... of
the party having the second largest number of votes" in the Senate
and hence, is null and void. The Senate is not clothed with "full
discretionary authority" in the choice of members of the Senate
Electoral Tribunal. The exercise of its power thereon is subject to
constitutional limitations which are claimed to be mandatory in
nature. It is clearly within the legitimate province of the judicial
department to pass upon the validity of the proceeding in connection
therewith.
... whether an election of public officers has been in accordance with

law is for the judiciary. Moreover, where the legislative department
has by statute prescribed election procedure in a given situation, the
judiciary may determine whether a particular election has been in
conformity with such statute, and particularly, whether such statute
has been applied in a way to deny or transgress on constitutional or
statutory rights ...' (1 6 C.J.S., 439; emphasis supplied)
It is, therefore, our opinion that we have, not only jurisdiction but also
the duty, to consider and determine the principal issue raised by the
parties herein."
Although not specifically discussed, the same disposition was made in Cunanan
v. Tan as it likewise involved the manner or legality of the organization of the
Commission on Appointments, not the wisdom or discretion of the House in the
choice of its representatives.
In the case now before us, the jurisdictional objection becomes even less tenable
and decisive. The reason is that, even if we were to assume that the issue
presented before us was political in nature, we would still not be precluded from
resolving it under the expanded jurisdiction conferred upon us that now covers, in
proper cases, even the political question. Article VII, Section 1, of the
Constitution clearly provides:
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.
The respondent's contention that he has been improperly impleaded is even less
persuasive. While he may be technically correct in arguing that it is not he who
caused the petitioner's removal, we feel that this objection is also not an
insuperable obstacle to the resolution of this controversy. We may, for one thing,
treat this proceeding as a petition for quo warranto as the petitioner is actually
questioning the respondent's right to sit as a member of the Commission on
Appointments. For another, we have held as early as in the Emergency Powers
Cases 7 that where serious constitutional questions are involved, "the
transcendental importance to the public of these cases demands that they be

settled promptly and definitely brushing aside, if we must, technicalities of
procedure." The same policy has since then been consistently followed by the
Court, as in Gonzales v. Commission on Elections, 8 where we held through Chief
Justice Fernando:
In the course of the deliberations, a serious procedural objection

was raised by five members of the Court. It is their view that
respondent Commission on Elections not being sought to be
restrained from performing any specific act, this suit cannot be
characterized as other than a mere request for an advisory opinion.
Such a view, from the remedial law standpoint, has much to
recommend it. Nonetheless, a majority would affirm the original
stand that under the circumstances, it could still rightfully be treated
as a petition for prohibition.
The language of justice Laurel fits the case: "All await 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 [its]
constitutionality ... be now resolved.' It may likewise be added that
the exceptional character of the situation that confronts us, the
paramount public interest, and the undeniable necessity for ruling,
the national elections being barely six months away, reinforce our
stand. It would appear undeniable, therefore, that before us is an
appropriate invocation of our jurisdiction to prevent the enforcement
of an alleged unconstitutional statute. We are left with no choice
then; we must act on the matter.
Coming now to the more crucial question, the Court notes that both the petitioner
and the respondent are invoking the case of Cunanan v. Tan to support their
respective positions. It is best, therefore, to make a quick review of that case for
a proper disposition of this one.
In the election for the House of Representatives held in 1961, 72 seats were won
by the Nacionalista Party, 29 by the Liberal Party and 1 by an independent.
Accordingly, the representation of the chamber in the Commission on
Appointments was apportioned to 8 members from the Nacionalista Party and 4
from the Liberal Party. Subsequently, 25 members of the Nacionalista Party,
professing discontent over the House leadership, made common cause with the
Liberal Party and formed what was called the Allied Majority to install a new
Speaker and reorganize the chamber. Included in this reorganization was the
House representation in the Commission on appointments where three of the
Nacionalista congressmen originally chosen were displaced by three of their
party colleagues who had joined the Allied Majority.
Petitioner Carlos Cunanan's ad interim appointment as Deputy Administrator of

the Reforestration Administration was rejected by the Commission on
Appointments as thus reorganized and respondent Jorge Tan, Jr. was thereafter
designated in his place. Cunanan then came to this Court, contending that the
rejection of his appointment was null and void because the Commission itself
was invalidly constituted.
The Court agreed. It noted that the Allied Majority was a merely temporary
combination as the Nacionalista defectors had not disaffiliated from their party
and permanently joined the new political group. Officially, they were still
members of the Nacionalista Party. The reorganization of the Commission on
Appointments was invalid because it was not based on the proportional
representation of the political parties in the House of Representatives as required

by the Constitution. The Court held:
... In other words, a shifting of votes at a given time, even if du to

arrangements of a more or less temporary nature, like the one that
has led to the formation of the so-called "Allied Majority," does not
suffice to authorize a reorganization of the membership of the
Commission for said House. Otherwise the Commission on
Appointments may have to be reorganized as often as votes shift
from one side to another in the House. The framers of our
Constitution could not have intended to thus place a constitutional
organ, like the Commission on Appointments, at the mercy of each
House of Congress.
The petitioner vigorously argues that the LDP is not the permanent political party
contemplated in the Constitution because it has not been registered in
accordance with Article IX-B, Section 2(5), in relation to the other provisions of
the Constitution. He stresses that the so-called party has not yet achieved
stability and suggests it might be no different from several other political groups
that have died "a-bornin'," like the LINA, or have subsequently floundered, like
the UNIDO.
The respondent also cites Cunanan but from a different viewpoint. According to
him, that case expressly allows reorganization at any time to reflect changes in
the political alignments in Congress, provided only that such changes are
permanent. The creation of the LDP constituting the bulk of the former PDP-
Laban and to which no less than 24 Liberal congressmen had transferred was a
permanent change. That change fully justified his designation to the Commission
on Appointments after the reduction of the LP representation therein. Thus, the
Court held:
Upon the other hand, the constitutional provision to the effect that
"there shall be a Commission on Appointments consisting of twelve
(12) Senators and twelve (12) members of the House of
Representatives elected by each House, respectively, on the basis
of proportional REPRESENTATION OF THE POLITICAL PARTIES
THEREIN," necessarily connotes the authority of each House of
Congress to see to it that this requirement is duly complied with. As
a consequence, it may take appropriate measures, not only upon the
initial organization of the Commission, but also, subsequently
thereto. If by reason of successful election protests against members
of a House, or of their expulsion from the political party to which they
belonged and/or of their affiliation with another political party, the
ratio in the representation of the political parties in the House is
materially changed, the House is clothed with authority to declare
vacant the necessary number of seats in the Commission on
Appointments held by members of said House belonging to the
political party adversely affected by the change and then fill said
vacancies in conformity with the Constitution.
In the course of the spirited debate on this matter between the petitioner and the
respondent (who was supported by the Solicitor General) an important
development has supervened to considerably simplify the present controversy.
The petitioner, to repeat, bases his argument heavily on the non-registration of
the LDP which, he claims has not provided the permanent political realignment to
justify the questioned reorganization. As he insists:
(c) Assuming that the so-called new coalesced majority

is actually the LDP itself, then the proposed
reorganization is likewise illegal and ineffectual,
because the LDP, not being a duly registered political
party, is not entitled to the "rights and privileges granted
by law to political parties' (See. 160, BP No. 881), and
therefore cannot legally claim the right to be considered
in determining the required proportional representation
of political parties in the House of Representatives. 9
xxx xxx xxx
... the clear constitutional intent behind Section 18, Article VI, of the
1987 Constitution, is to give the right of representation in the
Commission on Appointment only to political parties who are duly
registered with the Comelec. 10
On November 23, 1989, however, that argument boomeranged against the

petitioner. On that date, the Commission on Elections in an en banc resolution
affirmed the resolution of its First Division dated August 28, 1989, granting the
petition of the LDP for registration as a political party. 11 This has taken the wind
out of the sails of the petitioner, so to speak, and he must now limp to shore as
best he can.
The petitioner's contention that, even if registered, the party must still pass the
test of time to prove its permanence is not acceptable. Under this theory, a
registered party obtaining the majority of the seats in the House of
Representatives (or the Senate) would still not be entitled to representation in the
Commission on Appointments as long as it was organized only recently and has
not yet "aged." The Liberal Party itself would fall in such a category. That party
was created in December 1945 by a faction of the Nacionalista Party that
seceded therefrom to support Manuel A. Roxas's bid for the Presidency of the
Philippines in the election held on April 23, 1946. 12 The Liberal Party won. At that
time it was only four months old. Yet no question was raised as to its right to be
represented in the Commission on Appointments and in the Electoral Tribunals
by virtue of its status as the majority party in both chambers of the Congress.
The LDP has been in existence for more than one year now. It now has 157
members in the House of Representatives and 6 members in the Senate. Its
titular head is no less than the President of the Philippines and its President is
Senator Neptali A. Gonzales, who took over recently from Speaker Ramon V.
Mitra. It is true that there have been, and there still are, some internal
disagreements among its members, but these are to be expected in any political
organization, especially if it is democratic in structure. In fact even the monolithic
Communist Party in a number of socialist states has undergone similar
dissension, and even upheavals. But it surely cannot be considered still
temporary because of such discord.
If the petitioner's argument were to be pursued, the 157 members of the LDP in
the House of Representatives would have to be denied representation in the
Commission on Appointments and, for that matter, also the Electoral Tribunal. By
the same token, the KBL, which the petitioner says is now "history only," should
also be written off. The independents also cannot be represented because they
belong to no political party. That would virtually leave the Liberal Party only with
all of its seventeen members to claim all the twelve seats of the House of
Representatives in the Commission on Appointments and the six legislative seats
in the House Electoral Tribunal.
It is noteworthy that when with 41 members the Liberal Party was alloted two of
the seats in the Commission on Appointments, it did not express any
objection. 13 Inconsistently, the petitioner is now opposed to the withdrawal from it
of one seat although its original number has been cut by more than half.
As for the other condition suggested by the petitioner, to wit, that the party must
survive in a general congressional election, the LDP has doubtless also passed
that test, if only vicariously. It may even be said that as it now commands the
biggest following in the House of Representatives, the party has not only
survived but in fact prevailed. At any rate, that test was never laid down in
Cunanan.
To summarize, then, we hold, in view of the foregoing considerations, that the

issue presented to us is justiciable rather political, involving as it does the legality
and not the wisdom of the act complained of, or the manner of filling the
Commission on Appointments as prescribed by the Constitution. Even if the
question were political in nature, it would still come within our powers of review
under the expanded jurisdiction conferred upon us by Article VIII, Section 1, of
the Constitution, which includes the authority to determine whether grave abuse
of discretion amounting to excess or lack of jurisdiction has been committed by
any branch or instrumentality of the government. As for the alleged technical flaw
in the designation of the party respondent, assuming the existence of such a
defect, the same may be brushed aside, conformably to existing doctrine, so that
the important constitutional issue raised may be addressed. Lastly, we resolve
that issue in favor of the authority of the House of Representatives to change its
representation in the Commission on Appointments to reflect at any time the
changes that may transpire in the political alignments of its membership. It is
understood that such changes must be permanent and do not include the
temporary alliances or factional divisions not involving severance of political
loyalties or formal disaffiliation and permanent shifts of allegiance from one
political party to another.
The Court would have preferred not to intervene in this matter, leaving it to be
settled by the House of Representatives or the Commission on Appointments as
the bodies directly involved. But as our jurisdiction has been invoked and, more
importantly, because a constitutional stalemate had to be resolved, there was no
alternative for us except to act, and to act decisively. In doing so, of course, we
are not imposing our will upon the said agencies, or substituting our discretion for
theirs, but merely discharging our sworn responsibility to interpret and apply the
Constitution. That is a duty we do not evade, lest we ourselves betray our oath.
WHEREFORE, the petition is DISMISSED. The temporary restraining order

dated January 13, 1989, is LIFTED. The Court holds that the respondent has
been validly elected as a member of the Commission on Appointments and is
entitled to assume his seat in that body pursuant to Article VI, Section 18, of the
Constitution. No pronouncement as to costs.
SO ORDERED.
DELAGATION OF POWERS
EN BANC
G.R. No. 101273 July 3, 1992
CONGRESSMAN ENRIQUE T. GARCIA (Second District of

Bataan), petitioner, vs.
THE EXECUTIVE SECRETARY, THE COMMISSIONER OF CUSTOMS, THE
NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY, THE TARIFF

COMMISSION, THE SECRETARY OF FINANCE, and THE ENERGY
REGULATORY BOARD, respondents.
FELICIANO, J.:
On 27 November 1990, the President issued Executive Order No. 438 which
imposed, in addition to any other duties, taxes and charges imposed by law on all
articles imported into the Philippines, an additional duty of five percent (5%) ad
valorem. This additional duty was imposed across the board on all imported
articles, including crude oil and other oil products imported into the Philippines.
This additional duty was subsequently increased from five percent (5%) ad
valorem to nine percent (9%) ad valorem by the promulgation of Executive Order
No. 443, dated 3 January 1991.
On 24 July 1991, the Department of Finance requested the Tariff Commission to

initiate the process required by the Tariff and Customs Code for the imposition of
a specific levy on crude oil and other petroleum products, covered by HS
Heading Nos. 27.09, 27.10 and 27.11 of Section 104 of the Tariff and Customs
Code as amended. Accordingly, the Tariff Commission, following the procedure
set forth in Section 401 of the Tariff and Customs Code, scheduled a public
hearing to give interested parties an opportunity to be heard and to present
evidence in support of their respective positions.
Meantime, Executive Order No. 475 was issued by the President, on 15 August
1991 reducing the rate of additional duty on all imported articles from nine
percent (9%) to five percent (5%) ad valorem, except in the cases of crude oil
and other oil products which continued to be subject to the additional duty of nine
percent (9%) ad valorem.
Upon completion of the public hearings, the Tariff Commission submitted to the
President a "Report on Special Duty on Crude Oil and Oil Products" dated 16
August 1991, for consideration and appropriate action. Seven (7) days later, the
President issued Executive Order No. 478, dated 23 August 1991, which levied
(in addition to the aforementioned additional duty of nine percent (9%) ad
valorem and all other existing ad valorem duties) a special duty of P0.95 per liter
or P151.05 per barrel of imported crude oil and P1.00 per liter of imported oil
products.
In the present Petition for Certiorari, Prohibition and Mandamus, petitioner

assails the validity of Executive Orders Nos. 475 and 478. He argues that
Executive Orders Nos. 475 and 478 are violative of Section 24, Article VI of the
1987 Constitution which provides as follows:
Sec. 24: All appropriation, revenue or tariff bills, bills authorizing

increase of the public debt, bills of local application, and private bills
shall originate exclusively in the House of Representatives, but the
Senate may propose or concur with amendments.
He contends that since the Constitution vests the authority to enact

revenue bills in Congress, the President may not assume such power by
issuing Executive Orders Nos. 475 and 478 which are in the nature of
revenue-generating measures.
Petitioner further argues that Executive Orders No. 475 and 478 contravene
Section 401 of the Tariff and Customs Code, which Section authorizes the
President, according to petitioner, to increase, reduce or remove tariff duties or to

impose additional duties only when necessary to protect local industries or
products but not for the purpose of raising additional revenue for the government.
Thus, petitioner questions first the constitutionality and second the legality of
Executive Orders Nos. 475 and 478, and asks us to restrain the implementation
of those Executive Orders. We will examine these questions in that order.
Before doing so, however, the Court notes that the recent promulgation of
Executive Order No. 507 did not render the instant Petition moot and academic.
Executive Order No. 517 which is dated 30 April 1992 provides as follows:
Sec. 1. Lifting of the Additional Duty. — The additional duty in the

nature of ad valorem imposed on all imported articles prescribed by
the provisions of Executive Order No. 443, as amended, is
hereby lifted; Provided, however, that the selected articles covered
by HS Heading Nos. 27.09 and 27.10 of Section 104 of the Tariff
and Customs Code, as amended, subject of Annex "A" hereof, shall
continue to be subject to the additional duty of nine (9%) percent ad
valorem.
Under the above quoted provision, crude oil and other oil products
continue to be subject to the additional duty of nine percent (9%) ad
valorem under Executive Order No. 475 and to the special duty of P0.95
per liter of imported crude oil and P1.00 per liter of imported oil products
under Executive Order No. 478.
Turning first to the question of constitutionality, under Section 24, Article VI of the
Constitution, the enactment of appropriation, revenue and tariff bills, like all other
bills is, of course, within the province of the Legislative rather than the Executive
Department. It does not follow, however, that therefore Executive Orders Nos.
475 and 478, assuming they may be characterized as revenue measures, are
prohibited to the President, that they must be enacted instead by the Congress of
the Philippines. Section 28(2) of Article VI of the Constitution provides as follows:
(2) The Congress may, by law, authorize the President to fix within
specified limits, and subject to such limitations and restrictions as it
may impose, tariff rates, import and export quotas, tonage and
wharfage dues, and other duties or imposts within the framework of
the national development program of the Government. (Emphasis
supplied)
There is thus explicit constitutional permission 1 to Congress to authorize the

President "subject to such limitations and restrictions is [Congress] may impose"
to fix "within specific limits" "tariff rates . . . and other duties or imposts . . ."
The relevant congressional statute is the Tariff and Customs Code of the
Philippines, and Sections 104 and 401, the pertinent provisions thereof. These
are the provisions which the President explicitly invoked in promulgating
Executive Orders Nos. 475 and 478. Section 104 of the Tariff and Customs Code
provides in relevant part:
Sec. 104. All tariff sections, chapters, headings and subheadings

and the rates of import duty under Section 104 of Presidential
Decree No. 34 and all subsequent amendments issued under
Executive Orders and Presidential Decrees are hereby adopted and
form part of this Code.
There shall be levied, collected, and paid upon all imported articles
the rates of duty indicated in the Section under this section except
as otherwise specifically provided for in this Code: Provided, that,
the maximum rate shall not exceed one hundred per cent ad
valorem.
The rates of duty herein provided or subsequently fixed pursuant to

Section Four Hundred One of this Code shall be subject to periodic
investigation by the Tariff Commission and may be revised by the
President upon recommendation of the National Economic and
Development Authority.
xxx xxx xxx
(Emphasis supplied)
Section 401 of the same Code needs to be quoted in full:
Sec. 401. Flexible Clause. —
a. In the interest of national economy, general welfare and/or

national security, and subject to the limitations herein prescribed, the
President, upon recommendation of the National Economic and
Development Authority (hereinafter referred to as NEDA), is hereby
empowered: (1) to increase, reduce or remove existing protective
rates of import duty (including any necessary change in
classification). The existing rates may be increased or decreased but
in no case shall the reduced rate of import duty be lower than the
basic rate of ten (10) per cent ad valorem, nor shall the increased
rate of import duty be higher than a maximum of one hundred
(100) per cent ad valorem; (2) to establish import quota or to ban
imports of any commodity, as may be necessary; and (3) to impose
an additional duty on all imports not exceeding ten (10) per cent ad
valorem, whenever necessary; Provided, That upon periodic
investigations by the Tariff Commission and recommendation of the
NEDA, the President may cause a gradual reduction of protection
levels granted in Section One hundred and four of this Code,
including those subsequently granted pursuant to this section.
b. Before any recommendation is submitted to the President by the

NEDA pursuant to the provisions of this section, except in the
imposition of an additional duty not exceeding ten (10) per cent ad
valorem, the Commission shall conduct an investigation in the
course of which they shall hold public hearings wherein interested
parties shall be afforded reasonable opportunity to be present,
produce evidence and to be heard. The Commission shall also hear
the views and recommendations of any government office, agency
or instrumentality concerned. The Commission shall submit their
findings and recommendations to the NEDA within thirty (30) days
after the termination of the public hearings.
c. The power of the President to increase or decrease rates of import

duty within the limits fixed in subsection "a" shall include the
authority to modify the form of duty. In modifying the form of duty,
the corresponding ad valorem or specific equivalents of the duty with
respect to imports from the principal competing foreign country for
the most recent representative period shall be used as bases.
d. The Commissioner of Customs shall regularly furnish the

Commission a copy of all customs import entries as filed in the
Bureau of Customs. The Commission or its duly authorized
representatives shall have access to, and the right to copy all
liquidated customs import entries and other documents appended
thereto as finally filed in the Commission on Audit.
e. The NEDA shall promulgate rules and regulations necessary to

carry out the provisions of this section.
f. Any Order issued by the President pursuant to the provisions of

this section shall take effect thirty (30) days after promulgation,
except in the imposition of additional duty not exceeding ten (10) per
cent ad valorem which shall take effect at the discretion of the
President. (Emphasis supplied)
Petitioner, however, seeks to avoid the thrust of the delegated authorizations

found in Sections 104 and 401 of the Tariff and Customs Code, by contending
that the President is authorized to act under the Tariff and Customs Code only "to
protect local industries and products for the sake of the national economy,
general welfare and/or national security." 2 He goes on to claim that:
E.O. Nos. 478 and 475 having nothing to do whatsoever with the
protection of local industries and products for the sake of national
economy, general welfare and/or national security. On the contrary,
they work in reverse, especially as to crude oil, an essential product
which we do not have to protect, since we produce only minimal
quantities and have to import the rest of what we need.
These Executive Orders are avowedly solely to enable the

government to raise government finances, contrary to Sections 24
and 28 (2) of Article VI of the Constitution, as well as to Section 401
of the Tariff and Customs Code. 3 (Emphasis in the original)
The Court is not persuaded. In the first place, there is nothing in the language of
either Section 104 or of 401 of the Tariff and Customs Code that suggest such a
sharp and absolute limitation of authority. The entire contention of petitioner is
anchored on just two (2) words, one found in Section 401 (a)(1):
"existing protective rates of import duty," and the second in the proviso found at
the end of Section 401 (a): "protection levels granted in Section 104 of this Code
. . . . " We believe that the words "protective" and ''protection" are simply not
enough to support the very broad and encompassing limitation which petitioner
seeks to rest on those two (2) words.
In the second place, petitioner's singular theory collides with a very practical fact
of which this Court may take judicial notice — that the Bureau of Customs which
administers the Tariff and Customs Code, is one of the two (2) principal
traditional generators or producers of governmental revenue, the other being the
Bureau of Internal Revenue. (There is a third agency, non-traditional in character,
that generates lower but still comparable levels of revenue for the government —
The Philippine Amusement and Games Corporation [PAGCOR].)
In the third place, customs duties which are assessed at the prescribed tariff
rates are very much like taxes which are frequently imposed for both revenue-
raising and for regulatory purposes. 4 Thus, it has been held that "customs
duties" is "the name given to taxes on the importation and exportation of
commodities, the tariff or tax assessed upon merchandise imported from, or
exported to, a foreign country." 5 The levying of customs duties on imported
goods may have in some measure the effect of protecting local industries —
where such local industries actually exist and are producing comparable goods.
Simultaneously, however, the very same customs duties inevitably have the
effect of producing governmental revenues. Customs duties like internal revenue
taxes are rarely, if ever, designed to achieve one policy objective only. Most
commonly, customs duties, which constitute taxes in the sense of exactions the
proceeds of which become public funds 6 — have either or both the generation
of revenue and the regulation of economic or social activity as their moving
purposes and frequently, it is very difficult to say which, in a particular instance, is
the dominant or principal objective. In the instant case, since the Philippines in
fact produces ten (10) to fifteen percent (15%) of the crude oil consumed here,
the imposition of increased tariff rates and a special duty on imported crude oil
and imported oil products may be seen to have some "protective" impact upon
indigenous oil production. For the effective, price of imported crude oil and oil
products is increased. At the same time, it cannot be gainsaid that substantial
revenues for the government are raised by the imposition of such increased tariff
rates or special duty.
In the fourth place, petitioner's concept which he urges us to build into our
constitutional and customs law, is a stiflingly narrow one. Section 401 of the Tariff
and Customs Code establishes general standards with which the exercise of the
authority delegated by that provision to the President must be consistent: that
authority must be exercised in "the interest of national economy, general welfare
and/or national security." Petitioner, however, insists that the "protection of local
industries" is the only permissible objective that can be secured by the exercise
of that delegated authority, and that therefore "protection of local industries" is
the sum total or the alpha and the omega of "the national economy, general
welfare and/or national security." We find it extremely difficult to take seriously
such a confined and closed view of the legislative standards and policies
summed up in Section 401. We believe, for instance, that the protection of
consumers, who after all constitute the very great bulk of our population, is at the
very least as important a dimension of "the national economy, general welfare
and national security" as the protection of local industries. And so customs duties
may be reduced or even removed precisely for the purpose of protecting
consumers from the high prices and shoddy quality and inefficient service that
tariff-protected and subsidized local manufacturers may otherwise impose upon
the community.
It seems also important to note that tariff rates are commonly established and the
corresponding customs duties levied and collected upon articles and goods
which are not found at all and not produced in the Philippines. The Tariff and
Customs Code is replete with such articles and commodities: among the more
interesting examples are ivory (Chapter 5, 5.10); castoreum or musk taken from
the beaver (Chapter 5, 5.14); Olives (Chapter 7, Notes); truffles or European
fungi growing under the soil on tree roots (Chapter 7, Notes); dates (Chapter 8,
8.01); figs (Chapter 8, 8.03); caviar (Chapter 16, 16.01); aircraft (Chapter 88,
88.0l); special diagnostic instruments and apparatus for human medicine and
surgery (Chapter 90, Notes); X-ray generators; X-ray tubes;
X-ray screens, etc. (Chapter 90, 90.20); etc. In such cases, customs duties may
be seen to be imposed either for revenue purposes purely or perhaps, in certain
cases, to discourage any importation of the items involved. In either case, it is
clear that customs duties are levied and imposed entirely apart from whether or
not there are any competing local industries to protect.
Accordingly, we believe and so hold that Executive Orders Nos. 475 and 478
which may be conceded to be substantially moved by the desire to generate
additional public revenues, are not, for that reason alone, either constitutionally
flawed, or legally infirm under Section 401 of the Tariff and Customs Code.
Petitioner has not successfully overcome the presumptions of constitutionality
and legality to which those Executive Orders are entitled. 7
The conclusion we have reached above renders it unnecessary to deal with

petitioner's additional contention that, should Executive Orders Nos. 475 and 478
be declared unconstitutional and illegal, there should be a roll back of prices of
petroleum products equivalent to the "resulting excess money not be needed to
adequately maintain the Oil Price Stabilization Fund (OPSF)." 8
WHEREFORE, premises considered, the Petition for Certiorari, Prohibition

and Mandamus is hereby DISMISSED for lack of merit. Costs against petitioner.
SO ORDERED.
EN BANC
G.R. No. L-2044 August 26, 1949
J. ANTONIO ARANETA, petitioner, vs.

RAFAEL DINGLASAN, Judge of First Instance of Manila, and JOSE P.
BENGZON, Fiscal of City of Manila,respondents.
x -------------------------------------------------------- x
G.R. No. L-2756 August 26, 1949
J. ANTONIO ARANETA and GREGORIO VILLAMOR, petitioners, vs.

EUGENIO ANGELES, Fiscal of City of Manila, respondent.
x -------------------------------------------------------- x
G.R. No. L-3054 August 26, 1949
EULOGIO RODRIGUEZ, Sr., por si y como Presidente del Partido

Nacionalista, recurrente, vs.
EL TESORERO DE FILIPINAS, recurrido.
x -------------------------------------------------------- x
G.R. No. L-3055 August 26, 1949
LEON MA. GURRERO, petitioner, vs.

THE COMMISSIONER OF CUSTOMS and THE ADMINISTRATOR, SUGAR
QUOTA OFFICE, DEPARTMENT OF COMMERCE AND
INDUSTRY, respondents.
x -------------------------------------------------------- x
G.R. No. L-3056 August 26, 1949
ANTONIO BARREDO, in his own behalf and on behalf of all taxpayers

similarly situated, petitioner, vs.
THE COMMISSION ON ELECTIONS, THE AUDITOR GENERAL and THE
INSULAR TREASURER OF THE PHILIPPINES, respondents.
TUASON, J.:
Three of these cases were consolidated for argument and the other two were
argued separately on other dates. Inasmuch as all of them present the same
fundamental question which, in our view, is decisive, they will be disposed of
jointly. For the same reason we will pass up the objection to the personality or
sufficiency of interest of the petitioners in case G. R. No. L-3054 and case G. R.
No. L-3056 and the question whether prohibition lies in cases Nos. L-2044 and L-
2756. No practical benefit can be gained from a discussion of the procedural
matters since the decision in the cases wherein the petitioners' cause of action or
the propriety of the procedure followed is not in dispute, will be controlling
authority on the others. Above all, the transcendental importance to the public of
these cases demands that they be settled promptly and definitely, brushing
aside, if we must, technicalities of procedure. (Avelino vs. Cuenco, G. R. No. L-
2821.) The petitions challenge the validity of executive orders of the President
avowedly issued in virtue of Commonwealth Act No. 671. Involved in cases Nos.
L-2044 and L-2756 is Executive Order No. 62, which regulates rentals for houses
and lots for residential buildings. The petitioner, J. Antonio Araneta, is under
prosecution in the Court of First Instance of Manila for violation of the provisions
of this Executive Order, and prays for the issuance of the writ of prohibition to the
judge and the city fiscal. Involved in case L-3055 is Executive Order No. 192,
which aims to control exports from the Philippines. In this case, Leon Ma.
Guerrero seeks a writ of mandamus to compel the Administrator of the Sugar
Quota Office and the Commissioner of Customs to permit the exportation of
shoes by the petitioner. Both official refuse to issue the required export license
on the ground that the exportation of shoes from the Philippines is forbidden by
this Executive Order. Case No. L-3054 relates to Executive Order No. 225, which
appropriates funds for the operation of the Government of the Republic of the
Philippines during the period from July 1, 1949 to June 30, 1950, and for other
purposes. The petitioner Eulogio Rodriguez, Sr., as a tax-payer, an elector, and
president of the Nacionalista Party, applies for a writ of prohibition to restrain the
Treasurer of the Philippines from disbursing this Executive Order. Affected in
case No. L-3056 is Executive Order No. 226, which appropriates P6,000,000 to
defray the expenses in connection with, and incidental to, the hold lug of the
national elections to be held in November, 1949. The petitioner, Antonio Barredo,
as a citizen, tax-payer and voter, asks this Court to prevent "the respondents
from disbursing, spending or otherwise disposing of that amount or any part of it."
Notwithstanding allegations in the petitions assailing the constitutionally of Act

No. 671, the petitioners do not press the point in their oral argument and
memorandum. They rest their case chiefly on the proposition that the Emergency
Powers Act (Commonwealth Act No. 671) has ceased to have any force and
effect. This is the basic question we have referred to, and it is to this question
that we will presently address ourselves and devote greater attention. For the
purpose of this decision, only, the constitutionality of Act No. 671 will be taken for
granted, and any dictum or statement herein which may appear contrary to that
hypothesis should be understood as having been made merely in furtherance of
the main thesis.
Act No. 671 in full is as follows:
AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A RESULT

OF WAR INVOLVING THE PHILIPPINES AND AUTHORIZING THE
PRESIDENT TO PROMULGATE RULES AND REGULATIONS TO MEET
SUCH EMERGENCY.
Be it enacted by the National Assembly of the Philippines:
SECTION 1. The existence of war between the United States and other
countries of Europe and Asia, which involves the Philippines, makes it
necessary to invest the President with extraordinary powers in order to

meet the resulting emergency.
"SEC. 2. Pursuant to the provisions of Article VI, section 26, of the

Constitution, the President is hereby authorized, during the existence of
the emergency, to promulgate such rules and regulations as he may deem
necessary to carry out the national policy declared in section 1 hereof.
Accordingly, he is, among other things, empowered (a) to transfer the seat
of the Government or any of its subdivisions, branches, departments,
offices, agencies or instrumentalities; (b) to reorganize the Government of
the Commonwealth including the determination of the order of precedence
of the heads of the Executive Department; (c) to create new subdivisions,
branches, departments, agencies or instrumentalities of government and to
abolish any of those already existing; (d) to continue in force laws and
appropriations which would lapse or otherwise become inoperative, and to
modify or suspend the operation or application of those of an
administrative character; (e) to impose new taxes or to increase, reduce,
suspend or abolish those in existence; (f) to raise funds through the
issuance of bonds or otherwise, and to authorize the expenditure of the
proceeds thereof; (g) to authorize the national, provincial, city or municipal
governments to incur in overdrafts for purposes that he may approve; (h)
to declare the suspension of the collection of credits or the payment of
debts; and (i) to exercise such other powers as he may deem to enable the
Government to fulfill its responsibities and to maintain and enforce the
authority.
SEC. 3. The President of the Philippines shall as soon as practicable upon

the convening of the Congress of the Philippines report thereto all the rules
and regulations promulgated by him under the powers herein granted.
SEC. 4. This Act shall take effect upon its approval and the rules and
regulations promulgated hereunder shall be in force and effect until the
Congress of the Philippines shall otherwise provide.
Section 26 of Article VI of the Constitution provides:
In time of war or other national emergency, the Congress may by law

authorize the President, for a limited period and subject to such restrictions
as it may prescribe, to promulgate rules and regulations to carry out a
declared national policy.
Commonwealth Act No. 671 does not in term fix the duration of its effectiveness.
The intention of the Act has to be sought for in its nature, the object to be
accomplish, the purpose to be subserved, and its relation to the Constitution. The
consequences of the various constructions offered will also be resorted to as
additional aid to interpretation. We test a rule by its results.
Article VI of the Constitution provides that any law passed by virtue thereof
should be "for a limited period." "Limited" has been defined to mean "restricted;
bounded; prescribed; confined within positive bounds; restrictive in duration,
extent or scope." (Encyclopedia Law Dictionary, 3rd ed., 669; Black's Law
Dictionary, 3rd ed., 1120.) The words "limited period" as used in the Constitution
are beyond question intended to mean restrictive in duration. Emergency, in
order to justify the delegation of emergency powers, "must be temporary or it can
not be said to be an emergency." (First Trust Joint Stock Land Bank of
Chicago vs. Adolph P. Arp, et al., 120 A. L. R., 937, 938.).
It is to be presumed that Commonwealth Act No. 671 was approved with this
limitation in view. The opposite theory would make the law repugnant to the
Constitution, and is contrary to the principle that the legislature is deemed to
have full knowledge of the constitutional scope of its powers. The assertion that
new legislation is needed to repeal the act would not be in harmony with the
Constitution either. If a new and different law were necessary to terminate the
delegation, the period for the delegation, it has been correctly pointed out, would
be unlimited, indefinite, negative and uncertain; "that which was intended to meet
a temporary emergency may become permanent law," (Peck vs. Fink, 2 Fed.
[2d], 912); for Congress might not enact the repeal, and even if it would, the
repeal might not meet the approval of the President, and the Congress might not
be able to override the veto. Furthermore, this would create the anomaly that,
while Congress might delegate its powers by simple majority, it might not be able
to recall them except by a two-third vote. In other words, it would be easier for
Congress to delegate its powers than to take them back. This is not right and is
not, and ought not to be, the law. Corwin, President: Office and Powers, 1948
ed., p. 160, says:
It is generally agreed that the maxim that the legislature may not delegate
its powers signifies at the very least that the legislature may not abdicate
its powers: Yet how, in view of the scope that legislative delegations take
nowadays, is the line between delegation and abdication to be
maintained? Only, I urge, by rendering the delegated powers recoverable
without the consent of the delegate; . . . .
Section 4 goes far to settle the legislative intention of this phase of Act No. 671.
Section 4 stipulates that "the rules and regulations promulgated thereunder shall
be in full force and effect until the Congress of the Philippines shall otherwise
provide." The silence of the law regarding the repeal of the authority itself, in the
face of the express provision for the repeal of the rules and regulations issued in
pursuance of it, a clear manifestation of the belief held by the National Assembly
that there was no necessity to provide for the former. It would be strange if
having no idea about the time the Emergency Powers Act was to be effective the
National Assemble failed to make a provision for this termination in the same way
that it did for the termination of the effects and incidents of the delegation. There
would be no point in repealing or annulling the rules and regulations promulgated
under a law if the law itself was to remain in force, since, in that case, the
President could not only make new rules and regulations but he could restore the
ones already annulled by the legislature.
More anomalous than the exercise of legislative function by the Executive when
Congress is in the unobstructed exercise of its authority is the fact that there
would be two legislative bodies operating over the same field, legislating
concurrently and simultaneously, mutually nullifying each other's actions. Even if
the emergency powers of the President, as suggested, be suspended while
Congress was in session and be revived after each adjournment, the anomaly
would not be limited. Congress by a two-third vote could repeal executive orders
promulgated by the President during congressional recess, and the President in
turn could treat in the same manner, between sessions of Congress, laws
enacted by the latter. This is not a fantastic apprehension; in two instances it
materialized. In entire good faith, and inspired only by the best interests of the
country as they saw them, a former President promulgated an executive order
regulating house rentals after he had vetoed a bill on the subject enacted by
Congress, and the present Chief Executive issued an executive order on export
control after Congress had refused to approve the measure.
Quiet apart from these anomalies, there is good basis in the language of Act No.
671 for the inference that the National Assembly restricted the life of the
emergency powers of the President to the time the Legislature was prevented
from holding sessions due to enemy action or other causes brought on by the
war. Section 3 provides:
The President of the Philippines shall as soon as practicable upon the

convening of the Congress of the Philippines report thereto all the rules
and regulations promulgated by him under the powers herein granted.
The clear tenor of this provision is that there was to be only one meeting of
Congress at which the President was to give an account of his trusteeship. The
section did not say each meeting, which it could very well have said if that had
been the intention. If the National Assembly did not think that the report in section
3 was to be the first and last Congress Act No. 671 would lapsed, what reason
could there be for its failure to provide in appropriate and clear terms for the filing
of subsequent reports? Such reports, if the President was expected to continue
making laws in the forms of rules, regulations and executive orders, were as
important, of as unimportant, as the initial one.
As a contemporary construction, President Quezon's statement regarding the

duration of Act No. 671 is enlightening and should carry much weight,
considering his part in the passage and in the carrying out of the law. Mr.
Quezon, who called the National Assembly to a special session, who
recommended the enactment of the Emergency Powers Act, if indeed he was not
its author, and who was the very President to be entrusted with its execution,
stated in his autobiography, "The Good Fight," that Act No. 671 was only "for a
certain period" and "would become invalid unless reenacted." These phrases
connote automatical extinction of the law upon the conclusion of a certain period.
Together they denote that a new legislation was necessary to keep alive (not to
repeal) the law after the expiration of that period. They signify that the same law,
not a different one, had to be repassed if the grant should be prolonged.
What then was the contemplated period? President Quezon in the same
paragraph of his autobiography furnished part of the answer. He said he issued
the call for a special session of the National Assembly "when it became evident
that we were completely helpless against air attack, and that it was most unlikely
the Philippine Legislature would hold its next regular session which was to open
on January 1, 1942." (Emphasis ours.) It can easily be discerned in this
statement that the conferring of enormous powers upon the President was
decided upon with specific view to the inability of the National Assembly to meet.
Indeed no other factor than this inability could have motivated the delegation of
powers so vast as to amount to an abdication by the National Assembly of its
authority. The enactment and continuation of a law so destructive of the
foundations of democratic institutions could not have been conceived under any
circumstance short of a complete disruption and dislocation of the normal
processes of government. Anyway, if we are to uphold the constitutionality of the
act on the basis of its duration, we must start with the premise that it fixed a
definite, limited period. As we have indicated, the period that best comports with
constitutional requirements and limitations, with the general context of the law
and with what we believe to be the main if not the sole raison d'etre for its
enactment, was a period coextensive with the inability of Congress to function, a
period ending with the conventing of that body.
It is our considered opinion, and we so hold, that Commonwealth Act No. 671
became inoperative when Congress met in regular session on May 25, 1946, and
that Executive Orders Nos. 62, 192, 225 and 226 were issued without authority of
law. In setting the session of Congress instead of the first special session
preceded it as the point of expiration of the Act, we think giving effect to the
purpose and intention of the National Assembly. In a special session, the
Congress may "consider general legislation or only such as he (President) may

designate." (Section 9, Article VI of the Constitution.) In a regular session, the
power Congress to legislate is not circumscribed except by the limitations
imposed by the organic law.
Having arrived at this conclusion, we are relieved of the necessity of deciding the
question as to which department of government is authorized to inquire whether
the contingency on which the law is predicated still exists. The right of one or
another department to declare the emergency terminated is not in issue. As a
matter of fact, we have endeavored to find the will of the National Assembly—call
that will, an exercise of the police power or the war power — and, once
ascertained, to apply it. Of course, the function of interpreting statutes in proper
cases, as in this, will not be denied the courts as their constitutional prerogative
and duty. In so far as it is insinuated that the Chief Executive has the exclusive
authority to say that war not ended, and may act on the strength of his opinion
and findings in contravention of the law as the courts have construed it, no legal
principle can be found to support the proposition. There is no pretense that the
President has independent or inherent power to issue such executive orders as
those under review. we take it that the respondents, in sustaining the validity of
these executive orders rely on Act No. 600, Act No. 620, or Act No. 671 of the
former Commonwealth and on no other source. To put it differently, the
President's authority in this connection is purely statutory, in no sense political or
directly derived from the Constitution.
Act No. 671, as we have stressed, ended ex proprio vigore with the opening of
the regular session of Congress on May 25, 1946. Acts Nos. 600 and 620
contain stronger if not conclusive indication that they were self-liquidating. By
express provision the rules and regulations to be eventually made in pursuance
of Acts Nos. 600 and 620, respectively approved on August 19, 1940 and June 6,
1941, were to be good only up to the corresponding dates of adjournment of the
following sessions of the Legislature, "unless sooner amended or repealed by the
National Assembly." The logical deduction to be drawn from this provision is that
in the mind of the lawmakers the idea was fixed that the Acts themselves would
lapse not latter than the rules and regulations. The design to provide for the
automatic repeal of those rules and regulations necessarily was predicated on
the consciousness of a prior or at best simultaneous repeal of their source. Were
not this the case, there would arise the curious spectacle, already painted, and
easily foreseen, of the Legislature amending or repealing rules and regulations of
the President while the latter was empowered to keep or return them into force
and to issue new ones independently of the National Assembly. For the rest, the
reasoning heretofore adduced against the asserted indefinite continuance of the
operation of Act No. 671 equally applies to Acts Nos. 600 and 620.
The other corollary of the opinion we have reached is that the question whether
war, in law or in fact, continues, is irrelevant. If we were to that actual hostilities
between the original belligerents are still raging, the elusion would not be altered.
After the convening of Congress new legislation had to be approved if the
continuation of the emergency powers, or some of them, was desired. In the light
of the conditions surrounding the approval of the Emergency Power Act, we are
of the opinion that the "state of total emergency as a result of war" envisaged in
the preamble referred to the impending invasion and occupation of the
Philippines by the enemy and the consequent total disorganization of the
Government, principally the impossibility for the National Assembly to act. The
state of affairs was one which called for immediate action and with which the
National Assembly would would not be able to cope. The war itself and its
attendant chaos and calamities could not have necessitated the delegation had
the National Assembly been in a position to operate.
After all the criticism that have been made against the efficiency of the system of
the separation of powers, the fact remains that the Constitution has set up this
form of government, with all its defects and shortcomings, in preference to the
commingling of powers in one man or group of men. The Filipino people by
adopting parliamentary government have given notice that they share the faith of
other democracy-loving people in this system, with all its faults, as the ideal. The
point is, under this framework of government, legislation is preserved for
Congress all the time, not expecting periods of crisis no matter how serious.
Never in the history of the United States, the basic features of whose Constitution
have been copied in ours, have the specific functions of the legislative branch of
enacting laws been surrendered to another department — unless we regard as
legislating the carrying out of a legislative policy according to prescribed
standards; no, not even when that Republic was fighting a total war, or when it
was engaged in a life-and-death struggle to preserve the Union. The truth is that
under our concept of constitutional government, in times of extreme perils more
than in normal circumstances "the various branches, executive, legislative, and
judicial," given the ability to act, are called upon "to the duties and discharge the
responsibilities committed to them respectively."
These observations, though beyond the issue as formulated in this decision,

may, we trust, also serve to answer the vehement plea that for the good of the
Nation, the President should retain his extraordinary powers as long asturmoil
and other ills directly or indirectly traceable to the late war harass the Philippines.
Upon the foregoing considerations, the petitions will be granted. In order to avoid
any possible disruption and interruption in the normal operation of the
Government, we have deemed it best to depart in these cases from the ordinary
rule to the period for the effectivity of decisions, and to decree, as it is hereby
decreed, that this decision take effect fifteen days from the date of the entry of
final judgment provided in section 8 of Rule 53 of the Rules of Court in relation to
section 2 of Rule 35. No costs will be charged.
EN BANC
G.R. No. L-6266 February 2, 1953
EULOGIO RODRIGUEZ, SR., ETC., ET AL., petitioners, vs.

VICENTE GELLA, ETC., ET AL., respondents.
PARAS, C.J.:
As a fitting foreword, it may be recalled that on a previous occasion, on August

26, 1949 to be exact, this court had already passed upon the status of
Commonwealth Act No. 671, approved on December 16, 1941, "declaring a state
of total emergency as a result of war involving the Philippines and authorizing the
President to promulgate rules and regulations to meet such emergency." Five
members held that the Act ceased to be operative in its totality, on May 25, 1946
(when the Congress convened in special session) according to Chief Justice
Moran. Justice Bengzon, Padilla, Montemayor, Reyes and Torres in effect
concluded that the powers delegated to the President had been withdrawn as to
matters already legislated upon by the Congress or on which the latter had
demonstrated its readiness or ability to act. Executive Orders No. 62 (dated June
21, 1947) regulating house and lot rentals, No. 192 (dated December 24, 1948)
regulating exports, Nos. 225 and 226 (dated June 15,1949) the first appropriation
funds for the operation of the Government from July 1, 1949 to June 30, 1950,
and the second appropriating funds for election expenses in November 1949,
were therefore declared null and void for having been issued after Act No. 671
had lapsed and/or after the Congress had enacted legislation on the same
subjects.1
More or less the same considerations that influenced our pronouncement of

August 26, 1949 are and should be controlling in the case now before us,
wherein the petitioners seek to invalidate Executive Orders Nos. 545 and 546
issued on November 10, 1952, the first appropriating the sum of P37,850,500 for
urgent and essential public works, and the second setting aside the sum of
P11,367,600 for relief in the provinces and cities visited by typhoons, floods,
droughts, earthquakes, volcanic action and other calamities.
Section 26 of Article VI of the Constitution provides that "in times of war or other
national emergency, the Congress may by law authorize the President, for a
limited period and subject to such restrictions as it may prescribe, to promulgate
rules and regulations to carry out a declared national policy." Accordingly the
National Assembly passed Commonwealth Act No. 671, declaring (in section 1)
the national policy that "the existence of war between the United States and other
countries of Europe and Asia, which involves the Philippines makes it necessary
to invest the President with extraordinary powers in order to meet the resulting
emergency," and (in section 2) authorizing the President, "during the existence of
the emergency, to promulgate such rules and regulations as he may deem
necessary to carry out the national policy declared in section 1."
As the Act was expressly in pursuance of the constitutional provision, it has to be

assumed that the National Assembly intended it to be only for a limited period. If
it be contended that the Act has not yet been duly repealed, and such step is
necessary to a cessation of the emergency powers delegated to the President,
the result would be obvious unconstitutionality, since it may never be repealed by
the Congress, or if the latter ever attempts to do so, the President may wield his
veto. This eventuality has in fact taken place when the President disapproved
House Bill No. 727, repealing all Emergency Powers Acts. The situation will
make the Congress and the President or either as the principal authority to
determine the indefinite duration of the delegation of legislative powers, — in
palpable repugnance to the constitutional provision that any grant thereunder
must be for a limited period, necessarily to be fixed in the law itself and not
dependent upon the arbitrary or elastic will of either the Congress or the
President.
Although House Bill No. 727, had been vetoed by the President and did not
thereby become a regular statute, it may at least be considered as a concurrent
resolution of the Congress formally declaring the termination of the emergency
powers. To contend that the Bill needed presidential acquiescence to produce
effect, would lead to the anomalous, if not absurd, situation that, "while Congress
might delegate its power by a simple majority, it might not be able to recall them
except by two-third vote. In other words, it would be easier for Congress to
delegate its powers than to take them back. This is not right and is not, and ought
not to be the law."2
Act No. 671 may be likened to an ordinary contract of agency, whereby the
consent of the agent is necessary only in the sense that he cannot be compelled
to accept the trust, in the same way that the principal cannot be forced to keep
the relation in eternity or at the will of the agent. Neither can it be suggested that
the agency created under the Act is coupled with interest.
The logical view consistent with constitutionality is to hold that the powers lasted
only during the emergency resulting from the last world war which factually
involved the Philippines when Act No. 671 was passed on December 16, 1941.
That emergency, which naturally terminated upon the ending of the last world
war, was contemplated by the members of the National Assembly on the

foresight that the actual state of war could prevent it from holding its next regular
session. This is confirmed by the following statement of President Quezon:
"When it became evident that we were completely helpless against air attack and
that it was most unlikely the Philippine Legislature would hold its next regular
session which was to open on January 1, 1942, the National Assembly passed
into history approving a resolution which reaffirmed the abiding faith of the
Filipino people in, and their loyalty to, the United States. The Assembly also
enacted a law granting the President of the Philippines all the powers that under
the Philippine Constitution may be delegated to him in time of war."3 When
President Quezon said "in time of war", he an doubtedly meant such factual war
as that then raging.
As early as July 26, 1948, the Congress categorically declared that "since
liberation conditions have gradually returned to normal, but not so with regard to
those who have suffered the ravages of war and who have not received any relief
for the loss and destruction resulting therefrom," and that "the emergency
created by the last war as regards these war sufferers being still existent, it is the
declared policy of the state that as to them the debt moratorium should be
continued in force in a modified form."4 It is important to remember that Republic
Act No. 342 in which this declaration was made bore the approval of the
President. Indeed, the latter in his speech delivered on July 4, 1949, plainly
proclaimed that "what emergencies it (the Republic) faces today are incidental
passing rains artificially created by seasonal partisanship, very common among
democracies but will disappear with the rains that follow the thunderclaps not
later than November 8 of this year," — an admission, that such emergencies not
only are not total but are not the result of the last war as envisaged in Act No.
671.
If more is necessary to demonstrate the unmistakable stand of the legislative

department on the alleged existence of emergency, reference may be had to
House Bill No. 727, hereinbefore referred to, repealing all Emergency Powers
Acts.
Moreover, section 26 of Article VI of the constitution, in virtue of which Act No.

671 was passed, authorizes the delegation of powers by the Congress (1) in
times of war or (2) other national emergency. The emergency expressly spoken
of in the title and in section 1 of the Act is one "in time of war," as distinguished
from "other national emergency" that may arise as an after-effect of war or from
natural causes such as widespread earthquakes, typhoons, floods, and the like.
Certainly the typhoons that hit some provinces and cities in 1952 not only did not
result from the last world war but were and could not have been contemplated by
the legislators. At any rate, the Congress is available for necessary special
sessions, and it cannot let the people down without somehow being answerable
thereover.
As a matter of fact, the President, in returning to the Congress without his

signature House Bill No. 727, did not invoke any emergency resulting from the
last world war, but only called attention to an impending emergency that may be
brought about by present complicated and troubled world conditions, and to the
fact that our own soldiers are fighting and dying in Korea in defense of
democracy and freedom and for the preservation of our Republic. The
emergency thus feared cannot, however, be attributed to the war mentioned in
Act No. 671 and fought between Germany and Japan on one side and the Allied
Powers on the other; and indications are that in the next world war, if any, the
communist countries will be aligned against the democracies. No departure can
be made from the national policy declared in section 1 of Act No. 671. New
powers may be granted as often as emergencies contemplated in the

Constitution arise.
There is no point in the argument that the Philippines is still technically at war
with Japan pending the ratification of the peace treaty. In the first place, Act No.
671 referred to a factual war. In the second place, the last world war was
between the United States and Japan, the Philippines being involved only
because it was then under American sovereignty. In the third place, the United
States had already signed the peace treaty with Japan, and the Philippines has
become an independent country since July 4, 1946.
It is pointed out that the passage of House Bill No. 727 is inconsistent with the
claim that the emergency powers are non-existent. But, from the debates in the
House, it is patent that the Bill had to be approved merely to remove all doubts,
especially because this Court had heretofore failed, for lack of necessary
majority, to declare Act No. 671 entirely inoperative.
Reliance is placed on the petition of about seventy Congressmen and Senators

and on House Resolution No. 99, urging the President to release and appropriate
funds for essential and urgent public works and for relief in the typhoon-stricken
areas. It is enough to state, in reply, that the said petition and resolution cannot
prevail over the force and effect of House Bill No. 727 formally passed by two
chambers of the Congress. If faith can be accorded to the resolution of one
house, there is more reason for accepting the solemn declarations of two
houses.
Even under the theory of some members of this court that insofar as the
Congress had shown its readiness or ability to act on a given matter, the
emergency powers delegated to the President had been pro tanto withdrawn,
Executive Orders Nos. 545 and 546 must be declared as having no legal
anchorage. We can take judicial notice of the fact that the Congress has since
liberation repeatedly been approving acts appropriating funds for the operation of
the Government, public works, and many others purposes, with the result that as
to such legislative task the Congress must be deemed to have long decided to
assume the corresponding power itself and to withdraw the same from the
President. If the President had ceased to have powers with regards to general
appropriations, none can remain in respect of special appropriations; otherwise
he may accomplish indirectly what he cannot do directly. Besides, it is significant
that Act No. 671 expressly limited the power of the President to that continuing
"in force" appropriations which would lapse or otherwise become inoperative, so
that, even assuming that the Act is still effective, it is doubtful whether the
President can by executive orders make new appropriations. The specific power
"to continue in force laws and appropriations which would lapse or otherwise
become inoperative" is a limitation on the general power "to exercise such other
powers as he may deem necessary to enable the Government to fulfill its
responsibilities and to maintain and enforce its authority." Indeed, to hold that
although the Congress has, for about seven years since liberation, been normally
functioning and legislating on every conceivable field, the President still has any
residuary powers under the Act, would necessarily lead to confusion and
overlapping, if not conflict.
Shelter may not be sought in the proposition that the President should be allowed
to exercise emergency powers for the sake of speed and expediency in the
interest and for the welfare of the people, because we have the Constitution,
designed to establish a government under a regime of justice, liberty and
democracy. In line with such primordial objective, our Government is democratic
in form and based on the system of separation of powers. Unless and until
changed or amended, we shall have to abide by the letter and spirit of the
Constitution and be prepared to accept the consequences resulting from or

inherent in disagreements between, inaction or even refusal of the legislative and
executive departments. Much as it is imperative in some cases to have prompt
official action, deadlocks in and slowness of democratic processes must be
preferred to concentration of powers in any one man or group of men for obvious
reasons. The framers of the Constitution, however, had the vision of and were
careful in allowing delegation of legislative powers to the President for a limited
period "in times of war or other national emergency." They had thus entrusted to
the good judgment of the Congress the duty of coping with any national
emergency by a more efficient procedure; but it alone must decide because
emergency in itself cannot and should not create power. In our democracy the
hope and survival of the nation lie in the wisdom and unselfish patriotism of all
officials and in their faithful adherence to the Constitution.
Wherefore, Executive Orders Nos. 545 and 546 are hereby declared null and
void, and the respondents are ordered to desist from appropriating, releasing,
allotting, and expending the public funds set aside therein. So ordered, without
costs.
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.
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. law p hi1.n et
(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. Compañia General de Tabacos vs. Board of
Public Utility Commissioners [1916], 34 Phil., 136.) The general rule, however, is
limited by another rule that to a certain extent matters of detail may be left to be
filled in by rules and regulations to be adopted or promulgated by executive
officers and administrative boards. (6 R. C. L., pp. 177-179.)
For the purpose of Probation Act, the provincial boards may be regarded as
administrative bodies endowed with power to determine when the Act should
take effect in their respective provinces. They are the agents or delegates of the
legislature in this respect. The rules governing delegation of legislative power to
administrative and executive officers are applicable or are at least indicative of
the rule which should be here adopted. An examination of a variety of cases on
delegation of power to administrative bodies will show that the ratio decidendi is
at variance but, it can be broadly asserted that the rationale revolves around the
presence or absence of a standard or rule of action — or the sufficiency thereof
— in the statute, to aid the delegate in exercising the granted discretion. In some
cases, it is held that the standard is sufficient; in others that is insufficient; and in
still others that it is entirely lacking. As a rule, an act of the legislature is
incomplete and hence invalid if it does not lay down any rule or definite standard
by which the administrative officer or board may be guided in the exercise of the
discretionary powers delegated to it. (See Schecter vs. United States [1925], 295
U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837; 97 A.L.R., 947; People ex rel.
Rice vs. Wilson Oil Co. [1936], 364 Ill., 406; 4 N. E. [2d], 847; 107 A.L.R., 1500
and cases cited. See also R. C. L., title "Constitutional Law", sec 174.) In the
case at bar, what rules are to guide the provincial boards in the exercise of their
discretionary power to determine whether or not the Probation Act shall apply in
their respective provinces? What standards are fixed by the Act? We do not find
any and none has been pointed to us by the respondents. The probation Act
does not, by the force of any of its provisions, fix and impose upon the provincial
boards any standard or guide in the exercise of their discretionary power. What is
granted, if we may use the language of Justice Cardozo in the recent case of
Schecter, supra, is a "roving commission" which enables the provincial boards to
exercise arbitrary discretion. By section 11 if the Act, the legislature does not
seemingly on its own authority extend the benefits of the Probation Act to the
provinces but in reality leaves the entire matter for the various provincial boards
to determine. In other words, the provincial boards of the various provinces are to
determine for themselves, whether the Probation Law shall apply to their
provinces or not at all. The applicability and application of the Probation Act are
entirely placed in the hands of the provincial boards. If the provincial board does
not wish to have the Act applied in its province, all that it has to do is to decline to
appropriate the needed amount for the salary of a probation officer. The plain
language of the Act is not susceptible of any other interpretation. This, to our
minds, is a virtual surrender of legislative power to the provincial boards.
"The true distinction", says Judge Ranney, "is between the delegation of power to
make the law, which necessarily involves a discretion as to what it shall be, and
conferring an authority or 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.) la wp h! 1.n e t
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.
FIRST DIVISION
G.R. No. 76633 October 18, 1988
EASTERN SHIPPING LINES, INC., petitioner, vs.

PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION (POEA),
MINISTER OF LABOR AND EMPLOYMENT, HEARING OFFICER ABDUL
BASAR and KATHLEEN D. SACO, respondents.
CRUZ, J.:
The private respondent in this case was awarded the sum of P192,000.00 by the Philippine Overseas Employment Administration (POEA)
for the death of her husband. The decision is challenged by the petitioner on the principal ground that the POEA had no jurisdiction over the
case as the husband was not an overseas worker.
Vitaliano Saco was Chief Officer of the M/V Eastern Polaris when he was killed in
an accident in Tokyo, Japan, March 15, 1985. His widow sued for damages
under Executive Order No. 797 and Memorandum Circular No. 2 of the POEA.
The petitioner, as owner of the vessel, argued that the complaint was cognizable
not by the POEA but by the Social Security System and should have been filed
against the State Insurance Fund. The POEA nevertheless assumed jurisdiction
and after considering the position papers of the parties ruled in favor of the
complainant. The award consisted of P180,000.00 as death benefits and
P12,000.00 for burial expenses.
The petitioner immediately came to this Court, prompting the Solicitor General to
move for dismissal on the ground of non-exhaustion of administrative remedies.
Ordinarily, the decisions of the POEA should first be appealed to the National
Labor Relations Commission, on the theory inter alia that the agency should be
given an opportunity to correct the errors, if any, of its subordinates. This case
comes under one of the exceptions, however, as the questions the petitioner is
raising are essentially questions of law. 1 Moreover, the private respondent
himself has not objected to the petitioner's direct resort to this Court, observing
that the usual procedure would delay the disposition of the case to her prejudice.
The Philippine Overseas Employment Administration was created under

Executive Order No. 797, promulgated on May 1, 1982, to promote and monitor
the overseas employment of Filipinos and to protect their rights. It replaced the
National Seamen Board created earlier under Article 20 of the Labor Code in
1974. Under Section 4(a) of the said executive order, the POEA is vested with
"original and exclusive jurisdiction over all cases, including money claims,
involving employee-employer relations arising out of or by virtue of any law or
contract involving Filipino contract workers, including seamen." These cases,
according to the 1985 Rules and Regulations on Overseas Employment issued
by the POEA, include "claims for death, disability and other benefits" arising out
of such employment. 2
The petitioner does not contend that Saco was not its employee or that the claim
of his widow is not compensable. What it does urge is that he was not an
overseas worker but a 'domestic employee and consequently his widow's claim
should have been filed with Social Security System, subject to appeal to the
Employees Compensation Commission.
We see no reason to disturb the factual finding of the POEA that Vitaliano Saco
was an overseas employee of the petitioner at the time he met with the fatal
accident in Japan in 1985.
Under the 1985 Rules and Regulations on Overseas Employment, overseas

employment is defined as "employment of a worker outside the Philippines,
including employment on board vessels plying international waters, covered by a
valid contract. 3 A contract worker is described as "any person working or who
has worked overseas under a valid employment contract and shall include
seamen" 4 or "any person working overseas or who has been employed by
another which may be a local employer, foreign employer, principal or partner
under a valid employment contract and shall include seamen." 5 These definitions
clearly apply to Vitaliano Saco for it is not disputed that he died while under a
contract of employment with the petitioner and alongside the petitioner's vessel,
the M/V Eastern Polaris, while berthed in a foreign country. 6
It is worth observing that the petitioner performed at least two acts which
constitute implied or tacit recognition of the nature of Saco's employment at the
time of his death in 1985. The first is its submission of its shipping articles to the
POEA for processing, formalization and approval in the exercise of its regulatory
power over overseas employment under Executive Order NO. 797. 7 The second
is its payment 8 of the contributions mandated by law and regulations to the
Welfare Fund for Overseas Workers, which was created by P.D. No. 1694 "for
the purpose of providing social and welfare services to Filipino overseas
workers."
Significantly, the office administering this fund, in the receipt it prepared for the
private respondent's signature, described the subject of the burial benefits as
"overseas contract worker Vitaliano Saco." 9 While this receipt is certainly not
controlling, it does indicate, in the light of the petitioner's own previous acts, that
the petitioner and the Fund to which it had made contributions considered Saco
to be an overseas employee.
The petitioner argues that the deceased employee should be likened to the
employees of the Philippine Air Lines who, although working abroad in its
international flights, are not considered overseas workers. If this be so, the
petitioner should not have found it necessary to submit its shipping articles to the
POEA for processing, formalization and approval or to contribute to the Welfare
Fund which is available only to overseas workers. Moreover, the analogy is
hardly appropriate as the employees of the PAL cannot under the definitions
given be considered seamen nor are their appointments coursed through the
POEA.
The award of P180,000.00 for death benefits and P12,000.00 for burial expenses
was made by the POEA pursuant to its Memorandum Circular No. 2, which
became effective on February 1, 1984. This circular prescribed a standard
contract to be adopted by both foreign and domestic shipping companies in the
hiring of Filipino seamen for overseas employment. A similar contract had earlier
been required by the National Seamen Board and had been sustained in a
number of cases by this Court. 10 The petitioner claims that it had never entered
into such a contract with the deceased Saco, but that is hardly a serious
argument. In the first place, it should have done so as required by the circular,
which specifically declared that "all parties to the employment of any Filipino
seamen on board any ocean-going vessel are advised to adopt and use this
employment contract effective 01 February 1984 and to desist from using any
other format of employment contract effective that date." In the second place,
even if it had not done so, the provisions of the said circular are nevertheless
deemed written into the contract with Saco as a postulate of the police power of
the State. 11
But the petitioner questions the validity of Memorandum Circular No. 2 itself as
violative of the principle of non-delegation of legislative power. It contends that no
authority had been given the POEA to promulgate the said regulation; and even
with such authorization, the regulation represents an exercise of legislative
discretion which, under the principle, is not subject to delegation.
The authority to issue the said regulation is clearly provided in Section 4(a) of
Executive Order No. 797, reading as follows:
... The governing Board of the Administration (POEA), as hereunder

provided shall promulgate the necessary rules and regulations to
govern the exercise of the adjudicatory functions of the
Administration (POEA).
Similar authorization had been granted the National Seamen Board, which, as
earlier observed, had itself prescribed a standard shipping contract substantially
the same as the format adopted by the POEA.
The second challenge is more serious as it is true that legislative discretion as to

the substantive contents of the law cannot be delegated. What can be delegated
is the discretion to determine how the law may be enforced, not whatthe law shall
be. The ascertainment of the latter subject is a prerogative of the legislature. This
prerogative cannot be abdicated or surrendered by the legislature to the
delegate. Thus, in Ynot v. Intermediate Apellate Court 12 which annulled
Executive Order No. 626, this Court held:
We also mark, on top of all this, the questionable manner of the

disposition of the confiscated property as prescribed in the
questioned executive order. It is there authorized that the seized
property shall be distributed to charitable institutions and other
similar institutions as the Chairman of the National Meat Inspection
Commission may see fit, in the case of carabaos.' (Italics supplied.)
The phrase "may see fit" is an extremely generous and dangerous
condition, if condition it is. It is laden with perilous opportunities for
partiality and abuse, and even corruption. One searches in vain for
the usual standard and the reasonable guidelines, or better still, the
limitations that the officers must observe when they make their
distribution. There is none. Their options are apparently boundless.
Who shall be the fortunate beneficiaries of their generosity and by
what criteria shall they be chosen? Only the officers named can
supply the answer, they and they alone may choose the grantee as
they see fit, and in their own exclusive discretion. Definitely, there is
here a 'roving commission a wide and sweeping authority that is not
canalized within banks that keep it from overflowing,' in short a
clearly profligate and therefore invalid delegation of legislative
powers.
There are two accepted tests to determine whether or not there is a valid
delegation of legislative power, viz, the completeness test and the sufficient
standard test. Under the first test, the law must be complete in all its terms and
conditions when it leaves the legislature such that when it reaches the delegate
the only thing he will have to do is enforce it. 13 Under the sufficient standard test,
there must be adequate guidelines or stations in the law to map out the
boundaries of the delegate's authority and prevent the delegation from running
riot. 14
Both tests are intended to prevent a total transference of legislative authority to

the delegate, who is not allowed to step into the shoes of the legislature and
exercise a power essentially legislative.
The principle of non-delegation of powers is applicable to all the three major

powers of the Government but is especially important in the case of the
legislative power because of the many instances when its delegation is
permitted. The occasions are rare when executive or judicial powers have to be
delegated by the authorities to which they legally certain. In the case of the
legislative power, however, such occasions have become more and more
frequent, if not necessary. This had led to the observation that the delegation of
legislative power has become the rule and its non-delegation the exception.
The reason is the increasing complexity of the task of government and the
growing inability of the legislature to cope directly with the myriad 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 to provide the
required direct and efficacious, not to say, specific solutions. These solutions
may, however, be expected from its delegates, who are supposed to be experts
in the particular fields assigned to them.
The reasons given above for the delegation of legislative powers in general are
particularly applicable to administrative bodies. With the proliferation of
specialized activities and their attendant peculiar problems, the national
legislature has found it more and more necessary to entrust to administrative
agencies the authority to issue rules to carry out the general provisions of the
statute. This is called the "power of subordinate legislation."
With this power, administrative bodies may implement the broad policies laid
down in a statute by "filling in' the details which the Congress may not have the
opportunity or competence to provide. This is effected by their promulgation of
what are known as supplementary regulations, such as the implementing rules
issued by the Department of Labor on the new Labor Code. These regulations
have the force and effect of law.
Memorandum Circular No. 2 is one such administrative regulation. The model

contract prescribed thereby has been applied in a significant number of the cases
without challenge by the employer. The power of the POEA (and before it the
National Seamen Board) in requiring the model contract is not unlimited as there
is a sufficient standard guiding the delegate in the exercise of the said authority.
That standard is discoverable in the executive order itself which, in creating the
Philippine Overseas Employment Administration, mandated it to protect the rights
of overseas Filipino workers to "fair and equitable employment practices."
Parenthetically, it is recalled that this Court has accepted as sufficient standards

"Public interest" in People v. Rosenthal 15 "justice and equity" in Antamok Gold
Fields v. CIR 16 "public convenience and welfare" in Calalang v. Williams 17 and
"simplicity, economy and efficiency" in Cervantes v. Auditor General, 18 to mention
only a few cases. In the United States, the "sense and experience of men" was
accepted in Mutual Film Corp. v. Industrial Commission, 19 and "national security"
in Hirabayashi v. United States. 20
It is not denied that the private respondent has been receiving a monthly death
benefit pension of P514.42 since March 1985 and that she was also paid a
P1,000.00 funeral benefit by the Social Security System. In addition, as already
observed, she also received a P5,000.00 burial gratuity from the Welfare Fund
for Overseas Workers. These payments will not preclude allowance of the private
respondent's claim against the petitioner because it is specifically reserved in the
standard contract of employment for Filipino seamen under Memorandum
Circular No. 2, Series of 1984, that—
Section C. Compensation and Benefits.—
1. In case of death of the seamen during the term of his Contract,

the employer shall pay his beneficiaries the amount of:
a. P220,000.00 for master and chief engineers
b. P180,000.00 for other officers, including radio

operators and master electrician
c. P 130,000.00 for ratings.
2. It is understood and agreed that the benefits mentioned above

shall be separate and distinct from, and will be in addition to
whatever benefits which the seaman is entitled to under Philippine
laws. ...
3. ...
c. If the remains of the seaman is buried in the

Philippines, the owners shall pay the beneficiaries of the
seaman an amount not exceeding P18,000.00 for burial

expenses.
The underscored portion is merely a reiteration of Memorandum Circular No. 22,

issued by the National Seamen Board on July 12,1976, providing an follows:
Income Benefits under this Rule Shall be Considered Additional

Benefits.—
All compensation benefits under Title II, Book Four of the Labor
Code of the Philippines (Employees Compensation and State
Insurance Fund) shall be granted, in addition to whatever benefits,
gratuities or allowances that the seaman or his beneficiaries may be
entitled to under the employment contract approved by the NSB. If
applicable, all benefits under the Social Security Law and the
Philippine Medicare Law shall be enjoyed by the seaman or his
beneficiaries in accordance with such laws.
The above provisions are manifestations of the concern of the State for the
working class, consistently with the social justice policy and the specific
provisions in the Constitution for the protection of the working class and the
promotion of its interest.
One last challenge of the petitioner must be dealt with to close t case. Its
argument that it has been denied due process because the same POEA that
issued Memorandum Circular No. 2 has also sustained and applied it is an
uninformed criticism of administrative law itself. Administrative agencies are
vested with two basic powers, the quasi-legislative and the quasi-judicial. The
first enables them to promulgate implementing rules and regulations, and the
second enables them to interpret and apply such regulations. Examples abound:
the Bureau of Internal Revenue adjudicates on its own revenue regulations, the
Central Bank on its own circulars, the Securities and Exchange Commission on
its own rules, as so too do the Philippine Patent Office and the Videogram
Regulatory Board and the Civil Aeronautics Administration and the Department of
Natural Resources and so on ad infinitum on their respective administrative
regulations. Such an arrangement has been accepted as a fact of life of modern
governments and cannot be considered violative of due process as long as the
cardinal rights laid down by Justice Laurel in the landmark case of Ang Tibay v.
Court of Industrial Relations 21 are observed.
Whatever doubts may still remain regarding the rights of the parties in this case
are resolved in favor of the private respondent, in line with the express mandate
of the Labor Code and the principle that those with less in life should have more
in law.
When the conflicting interests of labor and capital are weighed on the scales of
social justice, the heavier influence of the latter must be counter-balanced by the
sympathy and compassion the law must accord the underprivileged worker. This
is only fair if he is to be given the opportunity and the right to assert and defend
his cause not as a subordinate but as a peer of management, with which he can
negotiate on even plane. Labor is not a mere employee of capital but its active
and equal partner.
WHEREFORE, the petition is DISMISSED, with costs against the petitioner. The
temporary restraining order dated December 10, 1986 is hereby LIFTED. It is so
ordered.
EN BANC
G.R. No. 17122 February 27, 1922
THE UNITED STATES, plaintiff-appellee, vs.

ANG TANG HO, defendant-appellant.
JOHNS, J.:
At its special session of 1919, the Philippine Legislature passed Act No. 2868,
entitled "An Act penalizing the monopoly and holding of, and speculation in,
palay, rice, and corn under extraordinary circumstances, regulating the
distribution and sale thereof, and authorizing the Governor-General, with the
consent of the Council of State, to issue the necessary rules and regulations
therefor, and making an appropriation for this purpose," the material provisions of
which are as follows:
Section 1. The Governor-General is hereby authorized, whenever, for any

cause, conditions arise resulting in an extraordinary rise in the price of
palay, rice or corn, to issue and promulgate, with the consent of the
Council of State, temporary rules and emergency measures for carrying
out the purpose of this Act, to wit:
(a) To prevent the monopoly and hoarding of, and speculation in, palay,
rice or corn.
(b) To establish and maintain a government control of the distribution or

sale of the commodities referred to or have such distribution or sale made
by the Government itself.
(c) To fix, from time to time the quantities of palay rice, or corn that a
company or individual may acquire, and the maximum sale price that the
industrial or merchant may demand.
(d) . . .
SEC. 2. It shall be unlawful to destroy, limit, prevent or in any other manner

obstruct the production or milling of palay, rice or corn for the purpose of
raising the prices thereof; to corner or hoard said products as defined in
section three of this Act; . . .
Section 3 defines what shall constitute a monopoly or hoarding of palay, rice or

corn within the meaning of this Act, but does not specify the price of rice or define
any basic for fixing the price.
SEC. 4. The violations of any of the provisions of this Act or of the

regulations, orders and decrees promulgated in accordance therewith shall
be punished by a fine of not more than five thousands pesos, or by
imprisonment for not more than two years, or both, in the discretion of the
court: Provided, That in the case of companies or corporations the
manager or administrator shall be criminally liable.
SEC. 7. At any time that the Governor-General, with the consent of the
Council of State, shall consider that the public interest requires the
application of the provisions of this Act, he shall so declare by
proclamation, and any provisions of other laws inconsistent herewith shall

from then on be temporarily suspended.
Upon the cessation of the reasons for which such proclamation was
issued, the Governor-General, with the consent of the Council of State,
shall declare the application of this Act to have likewise terminated, and all
laws temporarily suspended by virtue of the same shall again take effect,
but such termination shall not prevent the prosecution of any proceedings
or cause begun prior to such termination, nor the filing of any proceedings
for an offense committed during the period covered by the Governor-
General's proclamation.
August 1, 1919, the Governor-General issued a proclamation fixing the price at

which rice should be sold.
August 8, 1919, a complaint was filed against the defendant, Ang Tang Ho,
charging him with the sale of rice at an excessive price as follows:
The undersigned accuses Ang Tang Ho of a violation of Executive Order

No. 53 of the Governor-General of the Philippines, dated the 1st of August,
1919, in relation with the provisions of sections 1, 2 and 4 of Act No. 2868,
committed as follows:
That on or about the 6th day of August, 1919, in the city of Manila,
Philippine Islands, the said Ang Tang Ho, voluntarily, illegally and
criminally sold to Pedro Trinidad, one ganta of rice at the price of eighty
centavos (P.80), which is a price greater than that fixed by Executive Order
No. 53 of the Governor-General of the Philippines, dated the 1st of August,
1919, under the authority of section 1 of Act No. 2868. Contrary to law.
Upon this charge, he was tried, found guilty and sentenced to five months'
imprisonment and to pay a fine of P500, from which he appealed to this court,
claiming that the lower court erred in finding Executive Order No. 53 of 1919, to
be of any force and effect, in finding the accused guilty of the offense charged,
and in imposing the sentence.
The official records show that the Act was to take effect on its approval; that it
was approved July 30, 1919; that the Governor-General issued his proclamation
on the 1st of August, 1919; and that the law was first published on the 13th of
August, 1919; and that the proclamation itself was first published on the 20th of
August, 1919.
The question here involves an analysis and construction of Act No. 2868, in so
far as it authorizes the Governor-General to fix the price at which rice should be
sold. It will be noted that section 1 authorizes the Governor-General, with the
consent of the Council of State, for any cause resulting in an extraordinary rise in
the price of palay, rice or corn, to issue and promulgate temporary rules and
emergency measures for carrying out the purposes of the Act. By its very terms,
the promulgation of temporary rules and emergency measures is left to the
discretion of the Governor-General. The Legislature does not undertake to
specify or define under what conditions or for what reasons the Governor-
General shall issue the proclamation, but says that it may be issued "for any
cause," and leaves the question as to what is "any cause" to the discretion of the
Governor-General. The Act also says: "For any cause, conditions arise resulting
in an extraordinary rise in the price of palay, rice or corn." The Legislature does
not specify or define what is "an extraordinary rise." That is also left to the
discretion of the Governor-General. The Act also says that the Governor-
General, "with the consent of the Council of State," is authorized to issue and
promulgate "temporary rules and emergency measures for carrying out the
purposes of this Act." It does not specify or define what is a temporary rule or an
emergency measure, or how long such temporary rules or emergency measures
shall remain in force and effect, or when they shall take effect. That is to say, the
Legislature itself has not in any manner specified or defined any basis for the
order, but has left it to the sole judgement and discretion of the Governor-
General to say what is or what is not "a cause," and what is or what is not "an
extraordinary rise in the price of rice," and as to what is a temporary rule or an
emergency measure for the carrying out the purposes of the Act. Under this state
of facts, if the law is valid and the Governor-General issues a proclamation fixing
the minimum price at which rice should be sold, any dealer who, with or without
notice, sells rice at a higher price, is a criminal. There may not have been any
cause, and the price may not have been extraordinary, and there may not have
been an emergency, but, if the Governor-General found the existence of such
facts and issued a proclamation, and rice is sold at any higher price, the seller
commits a crime.
By the organic law of the Philippine Islands and the Constitution of the United
States all powers are vested in the Legislative, Executive and Judiciary. It is the
duty of the Legislature to make the law; of the Executive to execute the law; and
of the Judiciary to construe the law. The Legislature has no authority to execute
or construe the law, the Executive has no authority to make or construe the law,
and the Judiciary has no power to make or execute the law. Subject to the
Constitution only, the power of each branch is supreme within its own jurisdiction,
and it is for the Judiciary only to say when any Act of the Legislature is or is not
constitutional. Assuming, without deciding, that the Legislature itself has the
power to fix the price at which rice is to be sold, can it delegate that power to
another, and, if so, was that power legally delegated by Act No. 2868? In other
words, does the Act delegate legislative power to the Governor-General? By the
Organic Law, all Legislative power is vested in the Legislature, and the power
conferred upon the Legislature to make laws cannot be delegated to the
Governor-General, or any one else. The Legislature cannot delegate the
legislative power to enact any law. If Act no 2868 is a law unto itself and within
itself, and it does nothing more than to authorize the Governor-General to make
rules and regulations to carry the law into effect, then the Legislature itself
created the law. There is no delegation of power and it is valid. On the other
hand, if the Act within itself does not define crime, and is not a law, and some
legislative act remains to be done to make it a law or a crime, the doing of which
is vested in the Governor-General, then the Act is a delegation of legislative
power, is unconstitutional and void.
The Supreme Court of the United States in what is known as the Granger
Cases (94 U.S., 183-187; 24 L. ed., 94), first laid down the rule:
Railroad companies are engaged in a public employment affecting the

public interest and, under the decision in Munn vs. Ill., ante, 77, are subject
to legislative control as to their rates of fare and freight unless protected by
their charters.
The Illinois statute of Mar. 23, 1874, to establish reasonable maximum

rates of charges for the transportation of freights and passengers on the
different railroads of the State is not void as being repugnant to the
Constitution of the United States or to that of the State.
It was there for the first time held in substance that a railroad was a public utility,
and that, being a public utility, the State had power to establish reasonable
maximum freight and passenger rates. This was followed by the State of
Minnesota in enacting a similar law, providing for, and empowering, a railroad
commission to hear and determine what was a just and reasonable rate. The
constitutionality of this law was attacked and upheld by the Supreme Court of
Minnesota in a learned and exhaustive opinion by Justice Mitchell, in the case of
State vs. Chicago, Milwaukee & St. Paul ry. Co. (38 Minn., 281), in which the
court held:
Regulations of railway tariffs — Conclusiveness of commission's tariffs. —

Under Laws 1887, c. 10, sec. 8, the determination of the railroad and
warehouse commission as to what are equal and reasonable fares and
rates for the transportation of persons and property by a railway company
is conclusive, and, in proceedings by mandamus to compel compliance
with the tariff of rates recommended and published by them, no issue can
be raised or inquiry had on that question.
Same — constitution — Delegation of power to commission. — The

authority thus given to the commission to determine, in the exercise of their
discretion and judgement, what are equal and reasonable rates, is not a
delegation of legislative power.
It will be noted that the law creating the railroad commission expressly provides
—
That all charges by any common carrier for the transportation of

passengers and property shall be equal and reasonable.
With that as a basis for the law, power is then given to the railroad commission to
investigate all the facts, to hear and determine what is a just and reasonable rate.
Even then that law does not make the violation of the order of the commission a
crime. The only remedy is a civil proceeding. It was there held —
That the legislative itself has the power to regulate railroad charges is now
too well settled to require either argument or citation of authority.
The difference between the power to say what the law shall be, and the
power to adopt rules and regulations, or to investigate and determine the
facts, in order to carry into effect a law already passed, is apparent. The
true distinction is between the delegation of power to make the law, which
necessarily involves a discretion as to what it shall be, and the conferring
an authority or discretion to be exercised under and in pursuance of the
law.
The legislature enacts that all freights rates and passenger fares should be
just and reasonable. It had the undoubted power to fix these rates at
whatever it deemed equal and reasonable.
They have not delegated to the commission any authority or discretion as

to what the law shall be, — which would not be allowable, — but have
merely conferred upon it an authority and discretion, to be exercised in the
execution of the law, and under and in pursuance of it, which is entirely
permissible. The legislature itself has passed upon the expediency of the
law, and what is shall be. The commission is intrusted with no authority or
discretion upon these questions. It can neither make nor unmake a single
provision of law. It is merely charged with the administration of the law, and
with no other power.
The delegation of legislative power was before the Supreme Court of Wisconsin
in Dowling vs. Lancoshire Ins. Co. (92 Wis., 63). The opinion says:
"The true distinction is between the delegation of power to make the law,
which necessarily involves a discretion as to what it shall be, and
conferring authority or discretion as to its execution, to be exercised under
and in pursuance of the law. The first cannot be done; to the latter no valid
objection can be made."
The act, in our judgment, wholly fails to provide definitely and clearly what the
standard policy should contain, so that it could be put in use as a uniform policy
required to take the place of all others, without the determination of the insurance
commissioner in respect to maters involving the exercise of a legislative
discretion that could not be delegated, and without which the act could not
possibly be put in use as an act in confirmity to which all fire insurance policies
were required to be issued.
The result of all the cases on this subject is that a law must be complete, in all its
terms and provisions, when it leaves the legislative branch of the government,
and nothing must be left to the judgement of the electors or other appointee or
delegate of the legislature, so that, in form and substance, it is a law in all its
details in presenti, but which may be left to take effect in futuro, if necessary,
upon the ascertainment of any prescribed fact or event.
The delegation of legislative power was before the Supreme Court in United
States vs. Grimaud (220 U.S., 506; 55 L. ed., 563), where it was held that the
rules and regulations of the Secretary of Agriculture as to a trespass on
government land in a forest reserve were valid constitutional. The Act there
provided that the Secretary of Agriculture ". . . may make such rules and
regulations and establish such service as will insure the object of such
reservations; namely, to regulate their occupancy and use, and to preserve the
forests thereon from destruction; and any violation of the provisions of this act or
such rules and regulations shall be punished, . . ."
The brief of the United States Solicitor-General says:
In refusing permits to use a forest reservation for stock grazing, except

upon stated terms or in stated ways, the Secretary of Agriculture merely
assert and enforces the proprietary right of the United States over land
which it owns. The regulation of the Secretary, therefore, is not an exercise
of legislative, or even of administrative, power; but is an ordinary and
legitimate refusal of the landowner's authorized agent to allow person
having no right in the land to use it as they will. The right of proprietary
control is altogether different from governmental authority.
The opinion says:
From the beginning of the government, various acts have been passed
conferring upon executive officers power to make rules and regulations, —
not for the government of their departments, but for administering the laws
which did govern. None of these statutes could confer legislative power.
But when Congress had legislated power. But when Congress had
legislated and indicated its will, it could give to those who were to act under
such general provisions "power to fill up the details" by the establishment
of administrative rules and regulations, the violation of which could be
punished by fine or imprisonment fixed by Congress, or by penalties fixed
by Congress, or measured by the injury done.
That "Congress cannot delegate legislative power is a principle universally

recognized as vital to the integrity and maintenance of the system of
government ordained by the Constitution."
If, after the passage of the act and the promulgation of the rule, the
defendants drove and grazed their sheep upon the reserve, in violation of
the regulations, they were making an unlawful use of the government's
property. In doing so they thereby made themselves liable to the penalty
imposed by Congress.
The subjects as to which the Secretary can regulate are defined. The lands are
set apart as a forest reserve. He is required to make provisions to protect them
from depredations and from harmful uses. He is authorized 'to regulate the
occupancy and use and to preserve the forests from destruction.' A violation of
reasonable rules regulating the use and occupancy of the property is made a
crime, not by the Secretary, but by Congress."
The above are leading cases in the United States on the question of delegating
legislative power. It will be noted that in the "Granger Cases," it was held that a
railroad company was a public corporation, and that a railroad was a public utility,
and that, for such reasons, the legislature had the power to fix and determine just
and reasonable rates for freight and passengers.
The Minnesota case held that, so long as the rates were just and reasonable, the
legislature could delegate the power to ascertain the facts and determine from
the facts what were just and reasonable rates,. and that in vesting the
commission with such power was not a delegation of legislative power.
The Wisconsin case was a civil action founded upon a "Wisconsin standard
policy of fire insurance," and the court held that "the act, . . . wholly fails to
provide definitely and clearly what the standard policy should contain, so that it
could be put in use as a uniform policy required to take the place of all others,
without the determination of the insurance commissioner in respect to matters
involving the exercise of a legislative discretion that could not be delegated."
The case of the United States Supreme Court, supra dealt with rules and
regulations which were promulgated by the Secretary of Agriculture for
Government land in the forest reserve.
These decisions hold that the legislative only can enact a law, and that it cannot
delegate it legislative authority.
The line of cleavage between what is and what is not a delegation of legislative
power is pointed out and clearly defined. As the Supreme Court of Wisconsin
says:
That no part of the legislative power can be delegated by the legislature to

any other department of the government, executive or judicial, is a
fundamental principle in constitutional law, essential to the integrity and
maintenance of the system of government established by the constitution.
Where an act is clothed with all the forms of law, and is complete in and of
itself, it may be provided that it shall become operative only upon some
certain act or event, or, in like manner, that its operation shall be
suspended.
The legislature cannot delegate its power to make a law, but it can make a
law to delegate a power to determine some fact or state of things upon
which the law makes, or intends to make, its own action to depend.
The Village of Little Chute enacted an ordinance which provides:

All saloons in said village shall be closed at 11 o'clock P.M. each day and
remain closed until 5 o'clock on the following morning, unless by special
permission of the president.
Construing it in 136 Wis., 526; 128 A. S. R., 1100,1 the Supreme Court of that
State says:
We regard the ordinance as void for two reasons; First, because it

attempts to confer arbitrary power upon an executive officer, and allows
him, in executing the ordinance, to make unjust and groundless
discriminations among persons similarly situated; second, because the
power to regulate saloons is a law-making power vested in the village
board, which cannot be delegated. A legislative body cannot delegate to a
mere administrative officer power to make a law, but it can make a law with
provisions that it shall go into effect or be suspended in its operations upon
the ascertainment of a fact or state of facts by an administrative officer or
board. In the present case the ordinance by its terms gives power to the
president to decide arbitrary, and in the exercise of his own discretion,
when a saloon shall close. This is an attempt to vest legislative discretion
in him, and cannot be sustained.
The legal principle involved there is squarely in point here.
It must be conceded that, after the passage of act No. 2868, and before any rules
and regulations were promulgated by the Governor-General, a dealer in rice
could sell it at any price, even at a peso per "ganta," and that he would not
commit a crime, because there would be no law fixing the price of rice, and the
sale of it at any price would not be a crime. That is to say, in the absence of a
proclamation, it was not a crime to sell rice at any price. Hence, it must follow
that, if the defendant committed a crime, it was because the Governor-General
issued the proclamation. There was no act of the Legislature making it a crime to
sell rice at any price, and without the proclamation, the sale of it at any price was
to a crime.
The Executive order2 provides:
(5) The maximum selling price of palay, rice or corn is hereby fixed, for the
time being as follows:
In Manila —
Palay at P6.75 per sack of 57½ kilos, or 29 centavos per ganta.
Rice at P15 per sack of 57½ kilos, or 63 centavos per ganta.
Corn at P8 per sack of 57½ kilos, or 34 centavos per ganta.
In the provinces producing palay, rice and corn, the maximum price shall
be the Manila price less the cost of transportation from the source of
supply and necessary handling expenses to the place of sale, to be
determined by the provincial treasurers or their deputies.
In provinces, obtaining their supplies from Manila or other producing

provinces, the maximum price shall be the authorized price at the place of
supply or the Manila price as the case may be, plus the transportation cost,
from the place of supply and the necessary handling expenses, to the
place of sale, to be determined by the provincial treasurers or their
deputies.
(6) Provincial treasurers and their deputies are hereby directed to

communicate with, and execute all instructions emanating from the
Director of Commerce and Industry, for the most effective and proper
enforcement of the above regulations in their respective localities.
The law says that the Governor-General may fix "the maximum sale price that
the industrial or merchant may demand." The law is a general law and not a local
or special law.
The proclamation undertakes to fix one price for rice in Manila and other and
different prices in other and different provinces in the Philippine Islands, and
delegates the power to determine the other and different prices to provincial
treasurers and their deputies. Here, then, you would have a delegation of
legislative power to the Governor-General, and a delegation by him of that power
to provincial treasurers and their deputies, who "are hereby directed to
communicate with, and execute all instructions emanating from the Director of
Commerce and Industry, for the most effective and proper enforcement of the
above regulations in their respective localities." The issuance of the proclamation
by the Governor-General was the exercise of the delegation of a delegated
power, and was even a sub delegation of that power.
Assuming that it is valid, Act No. 2868 is a general law and does not authorize
the Governor-General to fix one price of rice in Manila and another price in Iloilo.
It only purports to authorize him to fix the price of rice in the Philippine Islands
under a law, which is General and uniform, and not local or special. Under the
terms of the law, the price of rice fixed in the proclamation must be the same all
over the Islands. There cannot be one price at Manila and another at Iloilo.
Again, it is a mater of common knowledge, and of which this court will take
judicial notice, that there are many kinds of rice with different and corresponding
market values, and that there is a wide range in the price, which varies with the
grade and quality. Act No. 2868 makes no distinction in price for the grade or
quality of the rice, and the proclamation, upon which the defendant was tried and
convicted, fixes the selling price of rice in Manila "at P15 per sack of 57½ kilos, or
63 centavos per ganta," and is uniform as to all grades of rice, and says nothing
about grade or quality. Again, it will be noted that the law is confined to palay,
rice and corn. They are products of the Philippine Islands. Hemp, tobacco,
coconut, chickens, eggs, and many other things are also products. Any law which
single out palay, rice or corn from the numerous other products of the Islands is
not general or uniform, but is a local or special law. If such a law is valid, then by
the same principle, the Governor-General could be authorized by proclamation to
fix the price of meat, eggs, chickens, coconut, hemp, and tobacco, or any other
product of the Islands. In the very nature of things, all of that class of laws should
be general and uniform. Otherwise, there would be an unjust discrimination of
property rights, which, under the law, must be equal and inform. Act No. 2868 is
nothing more than a floating law, which, in the discretion and by a proclamation
of the Governor-General, makes it a floating crime to sell rice at a price in excess
of the proclamation, without regard to grade or quality.
When Act No. 2868 is analyzed, it is the violation of the proclamation of the
Governor-General which constitutes the crime. Without that proclamation, it was
no crime to sell rice at any price. In other words, the Legislature left it to the sole
discretion of the Governor-General to say what was and what was not "any
cause" for enforcing the act, and what was and what was not "an extraordinary
rise in the price of palay, rice or corn," and under certain undefined conditions to
fix the price at which rice should be sold, without regard to grade or quality, also
to say whether a proclamation should be issued, if so, when, and whether or not
the law should be enforced, how long it should be enforced, and when the law
should be suspended. The Legislature did not specify or define what was "any
cause," or what was "an extraordinary rise in the price of rice, palay or corn,"
Neither did it specify or define the conditions upon which the proclamation should
be issued. In the absence of the proclamation no crime was committed. The
alleged sale was made a crime, if at all, because the Governor-General issued
the proclamation. The act or proclamation does not say anything about the
different grades or qualities of rice, and the defendant is charged with the sale "of
one ganta of rice at the price of eighty centavos (P0.80) which is a price greater
than that fixed by Executive order No. 53."
We are clearly of the opinion and hold that Act No. 2868, in so far as it
undertakes to authorized the Governor-General in his discretion to issue a
proclamation, fixing the price of rice, and to make the sale of rice in violation of
the price of rice, and to make the sale of rice in violation of the proclamation a
crime, is unconstitutional and void.
It may be urged that there was an extraordinary rise in the price of rice and
profiteering, which worked a severe hardship on the poorer classes, and that an
emergency existed, but the question here presented is the constitutionality of a
particular portion of a statute, and none of such matters is an argument for, or
against, its constitutionality.
The Constitution is something solid, permanent an substantial. Its stability

protects the life, liberty and property rights of the rich and the poor alike, and that
protection ought not to change with the wind or any emergency condition. The
fundamental question involved in this case is the right of the people of the
Philippine Islands to be and live under a republican form of government. We
make the broad statement that no state or nation, living under republican form of
government, under the terms and conditions specified in Act No. 2868, has ever
enacted a law delegating the power to any one, to fix the price at which rice
should be sold. That power can never be delegated under a republican form of
government.
In the fixing of the price at which the defendant should sell his rice, the law was
not dealing with government property. It was dealing with private property and
private rights, which are sacred under the Constitution. If this law should be
sustained, upon the same principle and for the same reason, the Legislature
could authorize the Governor-General to fix the price of every product or
commodity in the Philippine Islands, and empower him to make it a crime to sell
any product at any other or different price.
It may be said that this was a war measure, and that for such reason the
provision of the Constitution should be suspended. But the Stubborn fact remains
that at all times the judicial power was in full force and effect, and that while that
power was in force and effect, such a provision of the Constitution could not be,
and was not, suspended even in times of war. It may be claimed that during the
war, the United States Government undertook to, and did, fix the price at which
wheat and flour should be bought and sold, and that is true. There, the United
States had declared war, and at the time was at war with other nations, and it
was a war measure, but it is also true that in doing so, and as a part of the same
act, the United States commandeered all the wheat and flour, and took
possession of it, either actual or constructive, and the government itself became
the owner of the wheat and flour, and fixed the price to be paid for it. That is not
this case. Here the rice sold was the personal and private property of the
defendant, who sold it to one of his customers. The government had not bought
and did not claim to own the rice, or have any interest in it, and at the time of the
alleged sale, it was the personal, private property of the defendant. It may be that
the law was passed in the interest of the public, but the members of this court
have taken on solemn oath to uphold and defend the Constitution, and it ought
not to be construed to meet the changing winds or emergency conditions. Again,

we say that no state or nation under a republican form of government ever
enacted a law authorizing any executive, under the conditions states, to fix the
price at which a price person would sell his own rice, and make the broad
statement that no decision of any court, on principle or by analogy, will ever be
found which sustains the constitutionality of the particular portion of Act No. 2868
here in question. By the terms of the Organic Act, subject only to constitutional
limitations, the power to legislate and enact laws is vested exclusively in the
Legislative, which is elected by a direct vote of the people of the Philippine
Islands. As to the question here involved, the authority of the Governor-General
to fix the maximum price at which palay, rice and corn may be sold in the manner
power in violation of the organic law.
This opinion is confined to the particular question here involved, which is the right
of the Governor-General, upon the terms and conditions stated in the Act, to fix
the price of rice and make it a crime to sell it at a higher price, and which holds
that portions of the Act unconstitutional. It does not decide or undertake to
construe the constitutionality of any of the remaining portions of the Act.
The judgment of the lower court is reversed, and the defendant discharged. So
ordered.
EN BANC
G.R. No. 78164 July 31, 1987
TERESITA TABLARIN, MA, LUZ CIRIACO, MA NIMFA B. ROVIRA,

EVANGELINA S. LABAO, in their behalf and in behalf of applicants for
admission into the Medical Colleges during the school year 1987-88 and
future years who have not taken or successfully hurdled tile National
Medical Admission Test (NMAT).petitioners, vs.
THE HONORABLE JUDGE ANGELINA S. GUTIERREZ, Presiding Judge of
Branch XXXVII of the Regional Trial Court of the National Capital Judicial
Region with seat at Manila, THE HONORABLE SECRETARY LOURDES
QUISUMBING, in her capacity as Chairman of the BOARD OF MEDICAL
EDUCATION, and THE CENTER FOR EDUCATIONAL MEASUREMENT
(CEM), respondents.
FELICIANO, J.:
The petitioners sought admission into colleges or schools of medicine for the
school year 1987-1988. However, the petitioners either did not take or did not
successfully take the National Medical Admission Test (NMAT) required by the
Board of Medical Education, one of the public respondents, and administered by
the private respondent, the Center for Educational Measurement (CEM).
On 5 March 1987, the petitioners filed with the Regional Trial Court, National
Capital Judicial Region, a Petition for Declaratory Judgment and Prohibition
with a prayer for Temporary Restraining Order and Preliminary Injunction. The
petitioners sought to enjoin the Secretary of Education, Culture and Sports, the
Board of Medical Education and the Center for Educational Measurement from
enforcing Section 5 (a) and (f) of Republic Act No. 2382, as amended, and
MECS Order No. 52, series of 1985, dated 23 August 1985 and from requiring
the taking and passing of the NMAT as a condition for securing certificates of
eligibility for admission, from proceeding with accepting applications for taking
the NMAT and from administering the NMAT as scheduled on 26 April 1987 and
in the future. After hearing on the petition for issuance of preliminary injunction,
the trial court denied said petition on 20 April 1987. The NMAT was conducted
and administered as previously scheduled.
Petitioners accordingly filed this Special Civil Action for certiorari with this Court
to set aside the Order of the respondent judge denying the petition for issuance
of a writ of preliminary injunction.
Republic Act 2382, as amended by Republic Acts Nos. 4224 and 5946, known as
the "Medical Act of 1959" defines its basic objectives in the following manner:
Section 1. Objectives. — This Act provides for and shall govern

(a) the standardization and regulation of medical education (b) the
examination for registration of physicians; and (c) the supervision, control
and regulation of the practice of medicine in the Philippines. (Underscoring
supplied)
The statute, among other things, created a Board of Medical Education which is
composed of (a) the Secretary of Education, Culture and Sports or his duly
authorized representative, as Chairman; (b) the Secretary of Health or his duly
authorized representative; (c) the Director of Higher Education or his duly
authorized representative; (d) the Chairman of the Medical Board or his duly
authorized representative; (e) a representative of the Philippine Medical
Association; (f) the Dean of the College of Medicine, University of the Philippines;
(g) a representative of the Council of Deans of Philippine Medical Schools; and
(h) a representative of the Association of Philippine Medical Colleges, as
members. The functions of the Board of Medical Education specified in Section 5
of the statute include the following:
(a) To determine and prescribe equirements for admission into a

recognized college of medicine;
(b) To determine and prescribe requirements for minimum physical

facilities of colleges of medicine, to wit: buildings, including hospitals,
equipment and supplies, apparatus, instruments, appliances, laboratories,
bed capacity for instruction purposes, operating and delivery rooms,
facilities for outpatient services, and others, used for didactic and practical
instruction in accordance with modern trends;
(c) To determine and prescribe the minimum number and minimum

qualifications of teaching personnel, including student-teachers ratio;
(d) To determine and prescribe the minimum required curriculum leading to

the degree of Doctor of Medicine;
(e) To authorize the implementation of experimental medical curriculum in

a medical school that has exceptional faculty and instrumental facilities.
Such an experimental curriculum may prescribe admission and graduation
requirements other than those prescribed in this Act; Provided, That only
exceptional students shall be enrolled in the experimental curriculum;
(f) To accept applications for certification for admission to a medical school

and keep a register of those issued said certificate; and to collect from said
applicants the amount of twenty-five pesos each which shall accrue to the
operating fund of the Board of Medical Education;
(g) To select, determine and approve hospitals or some departments of the

hospitals for training which comply with the minimum specific physical
facilities as provided in subparagraph (b) hereof; and
(h) To promulgate and prescribe and enforce the necessary rules and
regulations for the proper implementation of the foregoing functions.
(Emphasis supplied)
Section 7 prescribes certain minimum requirements for applicants to medical

schools:
Admission requirements. — The medical college may admit any

student who has not been convicted by any court of competent jurisdiction
of any offense involving moral turpitude and who presents (a) a record of
completion of a bachelor's degree in science or arts; (b) a certificate of
eligibility for entrance to a medical school from the Board of Medical
Education; (c) a certificate of good moral character issued by two former
professors in the college of liberal arts; and (d) birth certificate. Nothing in
this act shall be construed to inhibit any college of medicine from
establishing, in addition to the preceding, other entrance requirements that
may be deemed admissible.
xxx xxx x x x (Emphasis supplied)
MECS Order No. 52, s. 1985, issued by the then Minister of Education, Culture
and Sports and dated 23 August 1985, established a uniform admission test
called the National Medical Admission Test (NMAT) as an additional requirement
for issuance of a certificate of eligibility for admission into medical schools of the
Philippines, beginning with the school year 1986-1987. This Order goes on to
state that:
2. The NMAT, an aptitude test, is considered as an instrument toward

upgrading the selection of applicants for admission into the medical
schools and its calculated to improve the quality of medical education in
the country. The cutoff score for the successful applicants, based on the
scores on the NMAT, shall be determined every year by the Board of
Medical Education after consultation with the Association of Philippine
Medical Colleges. The NMAT rating of each applicant, together with the
other admission requirements as presently called for under existing rules,
shall serve as a basis for the issuance of the prescribed certificate of
elegibility for admission into the medical colleges.
3. Subject to the prior approval of the Board of Medical Education, each

medical college may give other tests for applicants who have been issued
a corresponding certificate of eligibility for admission that will yield
information on other aspects of the applicant's personality to complement
the information derived from the NMAT.
xxx xxx xxx
8. No applicant shall be issued the requisite Certificate of Eligibility for

Admission (CEA), or admitted for enrollment as first year student in any
medical college, beginning the school year, 1986-87, without the required
NMAT qualification as called for under this Order. (Underscoring supplied)
Pursuant to MECS Order No. 52, s. 1985, the private respondent Center
conducted NMATs for entrance to medical colleges during the school year 1986-
1987. In December 1986 and in April 1987, respondent Center conducted the
NMATs for admission to medical colleges during the school year 1987.1988. 1 av v phi 1
Petitioners raise the question of whether or not a writ of preliminary injunction

may be issued to enjoin the enforcement of Section 5 (a) and (f) of Republic Act
No. 2382, as amended, and MECS Order No. 52, s. 1985, pending resolution of
the issue of constitutionality of the assailed statute and administrative order. We
regard this issue as entirely peripheral in nature. It scarcely needs documentation
that a court would issue a writ of preliminary injunction only when the petitioner
assailing a statute or administrative order has made out a case of
unconstitutionality strong enough to overcome, in the mind of the judge, the
presumption of constitutionality, aside from showing a clear legal right to the
remedy sought. The fundamental issue is of course the constitutionality of the
statute or order assailed.
1. The petitioners invoke a number of provisions of the 1987 Constitution which

are, in their assertion, violated by the continued implementation of Section 5 (a)
and (f) of Republic Act 2381, as amended, and MECS Order No. 52, s. 1985.
The provisions invoked read as follows:
(a) Article 11, Section 11: "The state values the dignity of every human
person and guarantees full respect of human rights. "
(b) ArticleII, Section l3: "The State recognizes the vital role of the youth in
nation building and shall promote and protect their physical, moral,
spiritual, intellectual and social well being. It shall inculcate in the youth
patriotism and nationalism, and encourage their involvement in public and
civic affairs."
(c) Article II, Section 17: "The State shall give priority to education, science
and technology, arts, culture and sports to foster patriotism and
nationalism, accelerate social progress and to promote total human
liberation and development. "
(d) Article XIV, Section l: "The State shall protect and promote the right of
all citizens to quality education at all levels and take appropriate steps to
make such education accessible to all. "
(e) Article XIV, Section 5 (3): "Every citizen has a right to select a
profession or course of study, subject to fair, reasonable and equitable
admission and academic requirements."
Article II of the 1987 Constitution sets forth in its second half certain "State
policies" which the government is enjoined to pursue and promote. The
petitioners here have not seriously undertaken to demonstrate to what extent or
in what manner the statute and the administrative order they assail collide with
the State policies embodied in Sections 11, 13 and 17. They have not, in other
words, discharged the burden of proof which lies upon them. This burden is
heavy enough where the constitutional provision invoked is relatively specific,
rather than abstract, in character and cast in behavioral or operational terms.
That burden of proof becomes of necessity heavier where the constitutional
provision invoked is cast, as the second portion of Article II is cast, in language
descriptive of basic policies, or more precisely, of basic objectives of State policy
and therefore highly generalized in tenor. The petitioners have not made their
case, even a prima facie case, and we are not compelled to speculate and to
imagine how the legislation and regulation impugned as unconstitutional could
possibly offend the constitutional provisions pointed to by the petitioners.
Turning to Article XIV, Section 1, of the 1987 Constitution, we note that once
more petitioners have failed to demonstrate that the statute and regulation they
assail in fact clash with that provision. On the contrary we may note-in
anticipation of discussion infra — that the statute and the regulation which
petitioners attack are in fact designed to promote "quality education" at the level
of professional schools. When one reads Section 1 in relation to Section 5 (3) of

Article XIV as one must one cannot but note that the latter phrase of Section 1 is
not to be read with absolute literalness. The State is not really enjoined to take
appropriate steps to make quality education " accessible to all who might for any
number of reasons wish to enroll in a professional school but rather merely to
make such education accessible to all who qualify under "fair, reasonable and
equitable admission and academic requirements. "
2. In the trial court, petitioners had made the argument that Section 5 (a) and (f)
of Republic Act No. 2382, as amended, offend against the constitutional principle
which forbids the undue delegation of legislative power, by failing to establish the
necessary standard to be followed by the delegate, the Board of Medical
Education. The general principle of non-delegation of legislative power, which
both flows from the reinforces the more fundamental rule of the separation and
allocation of powers among the three great departments of government,1 must be
applied with circumspection in respect of statutes which like the Medical Act of
1959, deal with subjects as obviously complex and technical as medical
education and the practice of medicine in our present day world. Mr. Justice
Laurel stressed this point 47 years ago in Pangasinan Transportation Co., Inc.
vs. The Public Service Commission:2
One thing, however, is apparent in the development of the principle of

separation of powers and that is that the maxim of delegatus non potest
delegare or delegate potestas non potest delegare, adopted this practice
(Delegibus et Consuetudiniis Anglia edited by G.E. Woodbine, Yale
University Press, 1922, Vol. 2, p. 167) but which is also recognized in
principle in the Roman Law (d. 17.18.3) has been made to adapt itself to
the complexities of modern government, giving rise to the adoption, within
certain limits of the principle of "subordinate legislation," not only in the
United States and England but in practically all modern governments.
(People vs. Rosenthal and Osmena [68 Phil. 318, 1939]. Accordingly, with
the growing complexity of modern life, the multiplication of the subjects of
governmental regulation and the increased difficulty of administering the
laws, there is a constantly growing tendency toward the delegation of
greater power by the legislature, and toward the approval of the practice by
the courts." 3
The standards set for subordinate legislation in the exercise of rule making
authority by an administrative agency like the Board of Medical Education are
necessarily broad and highly abstract. As explained by then Mr. Justice
Fernando in Edu v. Ericta4 —
The standard may be either expressed or implied. If the former, the non-
delegation objection is easily met. The standard though does not have to
be spelled out specifically. It could be implied from the policy and purpose
of the act considered as a whole. In the Reflector Law, clearly the
legislative objective is public safety. What is sought to be attained as in
Calalang v. Williams is "safe transit upon the roads. 5
We believe and so hold that the necessary standards are set forth in Section 1 of
the 1959 Medical Act: "the standardization and regulation of medical education"
and in Section 5 (a) and 7 of the same Act, the body of the statute itself, and that
these considered together are sufficient compliance with the requirements of the
non-delegation principle.
3. The petitioners also urge that the NMAT prescribed in MECS Order No. 52, s.
1985, is an "unfair, unreasonable and inequitable requirement," which results in a
denial of due process. Again, petitioners have failed to specify just what factors
or features of the NMAT render it "unfair" and "unreasonable" or "inequitable."

They appear to suggest that passing the NMAT is an unnecessary requirement
when added on top of the admission requirements set out in Section 7 of the
Medical Act of 1959, and other admission requirements established by internal
regulations of the various medical schools, public or private. Petitioners
arguments thus appear to relate to utility and wisdom or desirability of the NMAT
requirement. But constitutionality is essentially a question of power or authority:
this Court has neither commission or competence to pass upon questions of the
desirability or wisdom or utility of legislation or administrative regulation. Those
questions must be address to the political departments of the government not to
the courts.
There is another reason why the petitioners' arguments must fail: the legislative
and administrative provisions impugned by them constitute, to the mind of the
Court, a valid exercise of the police power of the state. The police power, it is
commonplace learning, is the pervasive and non-waivable power and authority of
the sovereign to secure and promote an the important interests and needs — in a
word, the public order — of the general community.6 An important component of
that public order is the health and physical safety and well being of the
population, the securing of which no one can deny is a legitimate objective of
governmental effort and regulation.7
Perhaps the only issue that needs some consideration is whether there is some
reasonable relation between the prescribing of passing the NMAT as a condition
for admission to medical school on the one hand, and the securing of the health
and safety of the general community, on the other hand. This question is perhaps
most usefully approached by recalling that the regulation of the practice of
medicine in all its branches has long been recognized as a reasonable method of
protecting the health and safety of the public.8 That the power to regulate and
control the practice of medicine includes the power to regulate admission to the
ranks of those authorized to practice medicine, is also well recognized. thus,
legislation and administrative regulations requiring those who wish to practice
medicine first to take and pass medical board examinations have long ago been
recognized as valid exercises of governmental power.9 Similarly, the
establishment of minimum medical educational requirements — i.e., the
completion of prescribed courses in a recognized medical school — for
admission to the medical profession, has also been sustained as a legitimate
exercise of the regulatory authority of the state.10 What we have before us in the
instant case is closely related: the regulation of access to medical schools.
MECS Order No. 52, s. 1985, as noted earlier, articulates the rationale of
regulation of this type: the improvement of the professional and technical quality
of the graduates of medical schools, by upgrading the quality of those admitted to
the student body of the medical schools. That upgrading is sought by selectivity
in the process of admission, selectivity consisting, among other things, of limiting
admission to those who exhibit in the required degree the aptitude for medical
studies and eventually for medical practice. The need to maintain, and the
difficulties of maintaining, high standards in our professional schools in general,
and medical schools in particular, in the current stage of our social and economic
development, are widely known.
We believe that the government is entitled to prescribe an admission test like the
NMAT as a means for achieving its stated objective of "upgrading the selection of
applicants into [our] medical schools" and of "improv[ing] the quality of medical
education in the country." Given the widespread use today of such admission
tests in, for instance, medical schools in the United States of America (the
Medical College Admission Test [MCAT]11 and quite probably in other countries
with far more developed educational resources than our own, and taking into
account the failure or inability of the petitioners to even attempt to prove

otherwise, we are entitled to hold that the NMAT is reasonably related to the
securing of the ultimate end of legislation and regulation in this area. That end, it
is useful to recall, is the protection of the public from the potentially deadly effects
of incompetence and ignorance in those who would undertake to treat our bodies
and minds for disease or trauma.
4. Petitioners have contended, finally, that MECS Order No. 52, s. 1985, is in
conflict with the equal protection clause of the Constitution. More specifically,
petitioners assert that that portion of the MECS Order which provides that
the cutoff score for the successful applicants, based on the scores on the
NMAT, shall be determined every-year by the Board of Medical 11
Education after consultation with the Association of Philippine Medical
Colleges. (Emphasis supplied)
infringes the requirements of equal protection. They assert, in other words, that
students seeking admission during a given school year, e.g., 1987-1988, when
subjected to a different cutoff score than that established for an, e.g., earlier
school year, are discriminated against and that this renders the MECS Order
"arbitrary and capricious." The force of this argument is more apparent than real.
Different cutoff scores for different school years may be dictated by differing
conditions obtaining during those years. Thus, the appropriate cutoff score for a
given year may be a function of such factors as the number of students who have
reached the cutoff score established the preceding year; the number of places
available in medical schools during the current year; the average score attained
during the current year; the level of difficulty of the test given during the current
year, and so forth. To establish a permanent and immutable cutoff score
regardless of changes in circumstances from year to year, may wen result in an
unreasonable rigidity. The above language in MECS Order No. 52, far from being
arbitrary or capricious, leaves the Board of Medical Education with the measure
of flexibility needed to meet circumstances as they change.
We conclude that prescribing the NMAT and requiring certain minimum scores
therein as a condition for admission to medical schools in the Philippines, do not
constitute an unconstitutional imposition.
WHEREFORE, the Petition for certiorari is DISMISSED and the Order of the
respondent trial court denying the petition for a writ of preliminary injunction is
AFFIRMED. Costs against petitioners.
SO ORDERED.
EN BANC
G.R. No. 74457 March 20, 1987
RESTITUTO YNOT, petitioner, vs.

INTERMEDIATE APPELLATE COURT, respondents.
CRUZ, J.:
The essence of due process is distilled in the immortal cry of Themistocles to

Alcibiades "Strike — but hear me first!" It is this cry that the petitioner in effect
repeats here as he challenges the constitutionality of Executive Order No. 626-A.
The said executive order reads in full as follows:

WHEREAS, the President has given orders prohibiting the

interprovincial movement of carabaos and the slaughtering of
carabaos not complying with the requirements of Executive Order
No. 626 particularly with respect to age;
WHEREAS, it has been observed that despite such orders the

violators still manage to circumvent the prohibition against inter-
provincial movement of carabaos by transporting carabeef instead;
and
WHEREAS, in order to achieve the purposes and objectives of

Executive Order No. 626 and the prohibition against interprovincial
movement of carabaos, it is necessary to strengthen the said
Executive Order and provide for the disposition of the carabaos and
carabeef subject of the violation;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the

Philippines, by virtue of the powers vested in me by the Constitution,
do hereby promulgate the following:
SECTION 1. Executive Order No. 626 is hereby amended such that

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

presidential decree, promulgating a new rule instead of merely implementing an
existing law. It was issued by President Marcos not for the purpose of taking care
that the laws were faithfully executed but in the exercise of his legislative
authority under Amendment No. 6. It was provided thereunder that whenever in
his judgment there existed a grave emergency or a threat or imminence thereof
or whenever the legislature failed or was unable to act adequately on any matter
that in his judgment required immediate action, he could, in order to meet the
exigency, issue decrees, orders or letters of instruction that were to have the
force and effect of law. As there is no showing of any exigency to justify the
exercise of that extraordinary power then, the petitioner has reason, indeed, to
question the validity of the executive order. Nevertheless, since the determination
of the grounds was supposed to have been made by the President "in his
judgment, " a phrase that will lead to protracted discussion not really necessary
at this time, we reserve resolution of this matter until a more appropriate
occasion. For the nonce, we confine ourselves to the more fundamental question
of due process.
It is part of the art of constitution-making that the provisions of the charter be cast
in precise and unmistakable language to avoid controversies that might arise on
their correct interpretation. That is the Ideal. In the case of the due process
clause, however, this rule was deliberately not followed and the wording was
purposely kept ambiguous. In fact, a proposal to delineate it more clearly was

submitted in the Constitutional Convention of 1934, but it was rejected by
Delegate Jose P. Laurel, Chairman of the Committee on the Bill of Rights, who
forcefully argued against it. He was sustained by the body. 10
The due process clause was kept intentionally vague so it would remain also conveniently resilient. This was felt necessary b ecause due
process is not, like some provisions of the fundamental law, an "iron rule" laying down an implacable and immutable command for all
seasons and all persons. Flexibility must be the best virtue of the guaranty. The very elasticity of the due process clause w as meant to make
it adapt easily to every situation, enlarging or constricting its protection as the changing times and circumstances may require.
Aware of this, the courts have also hesitated to adopt their own specific
description of due process lest they confine themselves in a legal straitjacket that
will deprive them of the elbow room they may need to vary the meaning of the
clause whenever indicated. Instead, they have preferred to leave the import of
the protection open-ended, as it were, to be "gradually ascertained by the
process of inclusion and exclusion in the course of the decision of cases as they
arise." 11 Thus, Justice Felix Frankfurter of the U.S. Supreme Court, for example, would go no farther than to define due process —
and in so doing sums it all up — as nothing more and nothing less than "the embodiment of the sporting Idea of fair play." 12
When the barons of England extracted from their sovereign liege the reluctant promise that that Crown would thenceforth not proceed
against the life liberty or property of any of its subjects except by the lawful judgment of his peers or the law of the land, they thereby won for
themselves and their progeny that splendid guaranty of fairness that is now the hallmark of the free society. The solemn vow that King John
made at Runnymede in 1215 has since then resounded through the ages, as a ringing reminder to all rulers, benevolent or base, that every
person, when confronted by the stern visage of the law, is entitled to have his say in a fair and open hearing of his cause.
The closed mind has no place in the open society. It is part of the sporting Idea of
fair play to hear "the other side" before an opinion is formed or a decision is
made by those who sit in judgment. Obviously, one side is only one-half of the
question; the other half must also be considered if an impartial verdict is to be
reached based on an informed appreciation of the issues in contention. It is
indispensable that the two sides complement each other, as unto the bow the
arrow, in leading to the correct ruling after examination of the problem not from
one or the other perspective only but in its totality. A judgment based on less that
this full appraisal, on the pretext that a hearing is unnecessary or useless, is
tainted with the vice of bias or intolerance or ignorance, or worst of all, in
repressive regimes, the insolence of power.
The minimum requirements of due process are notice and hearing 13 which, generally
speaking, may not be dispensed with because they are intended as a safeguard against official arbitrariness. It is a gratifying commentary on
our judicial system that the jurisprudence of this country is rich with applications of this guaranty as proof of our fealty to the rule of law and
the ancient rudiments of fair play. We have consistently declared that every person, faced by the awesome power of the State, is entitled to
"the law of the land," which Daniel Webster described almost two hundred years ago in the famous Dartmouth College Case, 14 as "the law
which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial." It has to be so if the rights of every
person are to be secured beyond the reach of officials who, out of mistaken zeal or plain arrogance, would degrade the due process clause
into a worn and empty catchword.
This is not to say that notice and hearing are imperative in every case for, to be
sure, there are a number of admitted exceptions. The conclusive presumption,
for example, bars the admission of contrary evidence as long as such
presumption is based on human experience or there is a rational connection
between the fact proved and the fact ultimately presumed therefrom. 15 There are
instances when the need for expeditions action will justify omission of these requisites, as in the summary abatement of a nuisance per
se, like a mad dog on the loose, which may be killed on sight because of the immediate danger it poses to the safety and lives of the people.
Pornographic materials, contaminated meat and narcotic drugs are inherently pernicious and may be summarily destroyed. The passport of a
person sought for a criminal offense may be cancelled without hearing, to compel his return to the country he has fled. 16 Filthy restaurants
may be summarily padlocked in the interest of the public health and bawdy houses to protect the public morals. 17 In such instances,
previous judicial hearing may be omitted without violation of due process in view of the nature of the property involved or the urgency of the
need to protect the general welfare from a clear and present danger.
The protection of the general welfare is the particular function of the police power
which both restraints and is restrained by due process. The police power is
simply defined as the power inherent in the State to regulate liberty and property
for the promotion of the general welfare. 18 By reason of its function, it extends to all the great public needs
and is described as the most pervasive, the least limitable and the most demanding of the three inherent powers of the State, far outpacing
taxation and eminent domain. The individual, as a member of society, is hemmed in by the police power, which affects him even before he is
born and follows him still after he is dead — from the womb to beyond the tomb — in practically everything he does or owns. Its reach is
virtually limitless. It is a ubiquitous and often unwelcome intrusion. Even so, as long as the activity or the property has some relevance to the
public welfare, its regulation under the police power is not only proper but necessary. And the justification is found in the venerable Latin
maxims, Salus populi est suprema lex and Sic utere tuo ut alienum non laedas, which call for the subordination of individual interests to the
benefit of the greater number.
It is this power that is now invoked by the government to justify Executive Order
No. 626-A, amending the basic rule in Executive Order No. 626, prohibiting the
slaughter of carabaos except under certain conditions. The original measure was
issued for the reason, as expressed in one of its Whereases, that "present
conditions demand that the carabaos and the buffaloes be conserved for the
benefit of the small farmers who rely on them for energy needs." We affirm at the
outset the need for such a measure. In the face of the worsening energy crisis
and the increased dependence of our farms on these traditional beasts of
burden, the government would have been remiss, indeed, if it had not taken
steps to protect and preserve them.
A similar prohibition was challenged in United States v. Toribio, 19 where a law regulating the
registration, branding and slaughter of large cattle was claimed to be a deprivation of property without due process of law. The defendant had
been convicted thereunder for having slaughtered his own carabao without the required permit, and he appealed to the Supreme Court. The
conviction was affirmed. The law was sustained as a valid police measure to prevent the indiscriminate killing of carabaos, which were then
badly needed by farmers. An epidemic had stricken many of these animals and the reduction of their number had resulted in an acute
decline in agricultural output, which in turn had caused an incipient famine. Furthermore, because of the scarcity of the animals and the
consequent increase in their price, cattle-rustling had spread alarmingly, necessitating more effective measures for the registration and
branding of these animals. The Court held that the questioned statute was a valid exercise of the police power and declared in part as
follows:
To justify the State in thus interposing its authority in behalf of the

public, it must appear, first, that the interests of the public generally,
as distinguished from those of a particular class, require such
interference; and second, that the means are reasonably necessary
for the accomplishment of the purpose, and not unduly oppressive
upon individuals. ...
From what has been said, we think it is clear that the enactment of
the provisions of the statute under consideration was required by
"the interests of the public generally, as distinguished from those of
a particular class" and that the prohibition of the slaughter of
carabaos for human consumption, so long as these animals are fit
for agricultural work or draft purposes was a "reasonably necessary"
limitation on private ownership, to protect the community from the
loss of the services of such animals by their slaughter by improvident
owners, tempted either by greed of momentary gain, or by a desire
to enjoy the luxury of animal food, even when by so doing the
productive power of the community may be measurably and
dangerously affected.
In the light of the tests mentioned above, we hold with the Toribio Case that the
carabao, as the poor man's tractor, so to speak, has a direct relevance to the
public welfare and so is a lawful subject of Executive Order No. 626. The method
chosen in the basic measure is also reasonably necessary for the purpose
sought to be achieved and not unduly oppressive upon individuals, again
following the above-cited doctrine. There is no doubt that by banning the
slaughter of these animals except where they are at least seven years old if male
and eleven years old if female upon issuance of the necessary permit, the
executive order will be conserving those still fit for farm work or breeding and
preventing their improvident depletion.
But while conceding that the amendatory measure has the same lawful subject
as the original executive order, we cannot say with equal certainty that it
complies with the second requirement, viz., that there be a lawful method. We
note that to strengthen the original measure, Executive Order No. 626-A imposes
an absolute ban not on the slaughter of the carabaos but on their movement,
providing that "no carabao regardless of age, sex, physical condition or purpose
(sic) and no carabeef shall be transported from one province to another." The
object of the prohibition escapes us. The reasonable connection between the
means employed and the purpose sought to be achieved by the questioned

measure is missing
We do not see how the prohibition of the inter-provincial transport of carabaos

can prevent their indiscriminate slaughter, considering that they can be killed
anywhere, with no less difficulty in one province than in another. Obviously,
retaining the carabaos in one province will not prevent their slaughter there, any
more than moving them to another province will make it easier to kill them there.
As for the carabeef, the prohibition is made to apply to it as otherwise, so says
executive order, it could be easily circumvented by simply killing the animal.
Perhaps so. However, if the movement of the live animals for the purpose of
preventing their slaughter cannot be prohibited, it should follow that there is no
reason either to prohibit their transfer as, not to be flippant dead meat.
Even if a reasonable relation between the means and the end were to be
assumed, we would still have to reckon with the sanction that the measure
applies for violation of the prohibition. The penalty is outright confiscation of the
carabao or carabeef being transported, to be meted out by the executive
authorities, usually the police only. In the Toribio Case, the statute was sustained
because the penalty prescribed was fine and imprisonment, to be imposed by the
court after trial and conviction of the accused. Under the challenged measure,
significantly, no such trial is prescribed, and the property being transported is
immediately impounded by the police and declared, by the measure itself, as
forfeited to the government.
In the instant case, the carabaos were arbitrarily confiscated by the police station
commander, were returned to the petitioner only after he had filed a complaint for
recovery and given a supersedeas bond of P12,000.00, which was ordered
confiscated upon his failure to produce the carabaos when ordered by the trial
court. The executive order defined the prohibition, convicted the petitioner and
immediately imposed punishment, which was carried out forthright. The measure
struck at once and pounced upon the petitioner without giving him a chance to be
heard, thus denying him the centuries-old guaranty of elementary fair play.
It has already been remarked that there are occasions when notice and hearing
may be validly dispensed with notwithstanding the usual requirement for these
minimum guarantees of due process. It is also conceded that summary action
may be validly taken in administrative proceedings as procedural due process is
not necessarily judicial only. 20 In the exceptional cases accepted, however. there
is a justification for the omission of the right to a previous hearing, to wit,
the immediacy of the problem sought to be corrected and the urgency of the
need to correct it.
In the case before us, there was no such pressure of time or action calling for the
petitioner's peremptory treatment. The properties involved were not even
inimical per se as to require their instant destruction. There certainly was no
reason why the offense prohibited by the executive order should not have been
proved first in a court of justice, with the accused being accorded all the rights
safeguarded to him under the Constitution. Considering that, as we held
in Pesigan v. Angeles, 21 Executive Order No. 626-A is penal in nature, the
violation thereof should have been pronounced not by the police only but by a
court of justice, which alone would have had the authority to impose the
prescribed penalty, and only after trial and conviction of the accused.
We also mark, on top of all this, the questionable manner of the disposition of the
confiscated property as prescribed in the questioned executive order. It is there
authorized that the seized property shall "be distributed to charitable institutions
and other similar institutions as the Chairman of the National Meat Inspection
Commission may see fit, in the case of carabeef, and to deserving farmers
through dispersal as the Director of Animal Industry may see fit, in the case of
carabaos." (Emphasis supplied.) The phrase "may see fit" is an extremely
generous and dangerous condition, if condition it is. It is laden with perilous
opportunities for partiality and abuse, and even corruption. One searches in vain
for the usual standard and the reasonable guidelines, or better still, the limitations
that the said officers must observe when they make their distribution. There is
none. Their options are apparently boundless. Who shall be the fortunate
beneficiaries of their generosity and by what criteria shall they be chosen? Only
the officers named can supply the answer, they and they alone may choose the
grantee as they see fit, and in their own exclusive discretion. Definitely, there is
here a "roving commission," a wide and sweeping authority that is not "canalized
within banks that keep it from overflowing," in short, a clearly profligate and
therefore invalid delegation of legislative powers.
To sum up then, we find that the challenged measure is an invalid exercise of the
police power because the method employed to conserve the carabaos is not
reasonably necessary to the purpose of the law and, worse, is unduly
oppressive. Due process is violated because the owner of the property
confiscated is denied the right to be heard in his defense and is immediately
condemned and punished. The conferment on the administrative authorities of
the power to adjudge the guilt of the supposed offender is a clear encroachment
on judicial functions and militates against the doctrine of separation of powers.
There is, finally, also an invalid delegation of legislative powers to the officers
mentioned therein who are granted unlimited discretion in the distribution of the
properties arbitrarily taken. For these reasons, we hereby declare Executive
Order No. 626-A unconstitutional.
We agree with the respondent court, however, that the police station commander
who confiscated the petitioner's carabaos is not liable in damages for enforcing
the executive order in accordance with its mandate. The law was at that time
presumptively valid, and it was his obligation, as a member of the police, to
enforce it. It would have been impertinent of him, being a mere subordinate of the
President, to declare the executive order unconstitutional and, on his own
responsibility alone, refuse to execute it. Even the trial court, in fact, and the
Court of Appeals itself did not feel they had the competence, for all their superior
authority, to question the order we now annul.
The Court notes that if the petitioner had not seen fit to assert and protect his
rights as he saw them, this case would never have reached us and the taking of
his property under the challenged measure would have become
a faitaccompli despite its invalidity. We commend him for his spirit. Without the
present challenge, the matter would have ended in that pump boat in Masbate
and another violation of the Constitution, for all its obviousness, would have been
perpetrated, allowed without protest, and soon forgotten in the limbo of
relinquished rights.
The strength of democracy lies not in the rights it guarantees but in the courage
of the people to invoke them whenever they are ignored or violated. Rights are
but weapons on the wall if, like expensive tapestry, all they do is embellish and
impress. Rights, as weapons, must be a promise of protection. They become
truly meaningful, and fulfill the role assigned to them in the free society, if they
are kept bright and sharp with use by those who are not afraid to assert them.
WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional.

Except as affirmed above, the decision of the Court of Appeals is reversed.
The supersedeas bond is cancelled and the amount thereof is ordered restored
to the petitioner. No costs.
SO ORDERED.
EN BANC
G.R. No. L-23825 December 24, 1965
EMMANUEL PELAEZ, petitioner, vs.

THE AUDITOR GENERAL, respondent.
CONCEPCION, J.:
During the period from September 4 to October 29, 1964 the President of the
Philippines, purporting to act pursuant to Section 68 of the Revised
Administrative Code, issued Executive Orders Nos. 93 to 121, 124 and 126 to
129; creating thirty-three (33) municipalities enumerated in the margin.1 Soon
after the date last mentioned, or on November 10, 1964 petitioner Emmanuel
Pelaez, as Vice President of the Philippines and as taxpayer, instituted the
present special civil action, for a writ of prohibition with preliminary injunction,
against the Auditor General, to restrain him, as well as his representatives and
agents, from passing in audit any expenditure of public funds in implementation
of said executive orders and/or any disbursement by said municipalities.
Petitioner alleges that said executive orders are null and void, upon the ground
that said Section 68 has been impliedly repealed by Republic Act No. 2370 and
constitutes an undue delegation of legislative power. Respondent maintains the
contrary view and avers that the present action is premature and that not all
proper parties — referring to the officials of the new political subdivisions in
question — have been impleaded. Subsequently, the mayors of several
municipalities adversely affected by the aforementioned executive orders —
because the latter have taken away from the former the barrios composing the
new political subdivisions — intervened in the case. Moreover, Attorneys Enrique
M. Fernando and Emma Quisumbing-Fernando were allowed to and did appear
as amici curiae.
The third paragraph of Section 3 of Republic Act No. 2370, reads:
Barrios shall not be created or their boundaries altered nor their names
changed except under the provisions of this Act or by Act of Congress.
Pursuant to the first two (2) paragraphs of the same Section 3:
All barrios existing at the time of the passage of this Act shall come under
the provisions hereof.
Upon petition of a majority of the voters in the areas affected, a new barrio
may be created or the name of an existing one may be changed by the
provincial board of the province, upon recommendation of the council of
the municipality or municipalities in which the proposed barrio is stipulated.
The recommendation of the municipal council shall be embodied in a
resolution approved by at least two-thirds of the entire membership of the
said council: Provided, however, That no new barrio may be created if its
population is less than five hundred persons.
Hence, since January 1, 1960, when Republic Act No. 2370 became effective,
barrios may "not be created or their boundaries altered nor their names changed"
except by Act of Congress or of the corresponding provincial board "upon petition
of a majority of the voters in the areas affected" and the "recommendation of the
council of the municipality or municipalities in which the proposed barrio is
situated." Petitioner argues, accordingly: "If the President, under this new law,
cannot even create a barrio, can he create a municipality which is composed of
several barrios, since barrios are units of municipalities?"
Respondent answers in the affirmative, upon the theory that a new municipality
can be created without creating new barrios, such as, by placing old barrios
under the jurisdiction of the new municipality. This theory overlooks, however, the
main import of the petitioner's argument, which is that the statutory denial of the
presidential authority to create a new barrio implies a negation of the bigger
power to create municipalities, each of which consists of several barrios. The
cogency and force of this argument is too obvious to be denied or even
questioned. Founded upon logic and experience, it cannot be offset except by a
clear manifestation of the intent of Congress to the contrary, and no such
manifestation, subsequent to the passage of Republic Act No. 2379, has been
brought to our attention.
Moreover, section 68 of the Revised Administrative Code, upon which the

disputed executive orders are based, provides:
The (Governor-General) President of the Philippines may by executive

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

foregoing authority, an equitable distribution of the funds and obligations of
the divisions thereby affected shall be made in such manner as may be
recommended by the (Insular Auditor) Auditor General and approved by
the (Governor-General) President of the Philippines.
Respondent alleges that the power of the President to create municipalities

under this section does not amount to an undue delegation of legislative power,
relying upon Municipality of Cardona vs. Municipality of Binañgonan (36 Phil.
547), which, he claims, has settled it. Such claim is untenable, for said case
involved, not the creation of a new municipality, but a mere transfer of territory —
from an already existing municipality (Cardona) to another municipality
(Binañgonan), likewise, existing at the time of and prior to said transfer (See
Gov't of the P.I. ex rel. Municipality of Cardona vs. Municipality, of Binañgonan
[34 Phil. 518, 519-5201) — in consequence of the fixing and definition, pursuant
to Act No. 1748, of the common boundaries of two municipalities.
It is obvious, however, that, whereas the power to fix such common boundary, in
order to avoid or settle conflicts of jurisdiction between adjoining municipalities,
may partake of an administrative nature — involving, as it does, the adoption of

means and ways to carry into effect the law creating said municipalities — the
authority to create municipal corporations is essentially legislative in nature. In
the language of other courts, it is "strictly a legislative function" (State ex rel.
Higgins vs. Aicklen, 119 S. 425, January 2, 1959) or "solely and exclusively the
exercise of legislative power" (Udall vs. Severn, May 29, 1938, 79 P. 2d 347-
349). As the Supreme Court of Washington has put it (Territory ex rel. Kelly vs.
Stewart, February 13, 1890, 23 Pac. 405, 409), "municipal corporations
are purely the creatures of statutes."
Although1a Congress may delegate to another branch of the Government the

power to fill in the details in the execution, enforcement or administration of a
law, it is essential, to forestall a violation of the principle of separation of powers,
that said law: (a) be complete in itself — it must set forth therein the policy to be
executed, carried out or implemented by the delegate2 — and (b) fix a standard
— the limits of which are sufficiently determinate or determinable — to which the
delegate must conform in the performance of his functions.2a Indeed, without a
statutory declaration of policy, the delegate would in effect, make or formulate
such policy, which is the essence of every law; and, without the aforementioned
standard, there would be no means to determine, with reasonable certainty,
whether the delegate has acted within or beyond the scope of his
authority.2b Hence, he could thereby arrogate upon himself the power, not only to
make the law, but, also — and this is worse — to unmake it, by adopting
measures inconsistent with the end sought to be attained by the Act of Congress,
thus nullifying the principle of separation of powers and the system of checks and
balances, and, consequently, undermining the very foundation of our Republican
system.
Section 68 of the Revised Administrative Code does not meet these well settled
requirements for a valid delegation of the power to fix the details in the
enforcement of a law. It does not enunciate any policy to be carried out or
implemented by the President. Neither does it give a standard sufficiently precise
to avoid the evil effects above referred to. In this connection, we do not overlook
the fact that, under the last clause of the first sentence of Section 68, the
President:
... may change the seat of the government within any subdivision to such
place therein as the public welfare may require.
It is apparent, however, from the language of this clause, that the phrase "as the
public welfare may require" qualified, not the clauses preceding the one just
quoted, but only the place to which the seat of the government may be
transferred. This fact becomes more apparent when we consider that said
Section 68 was originally Section 1 of Act No. 1748,3 which provided that,
"whenever in the judgment of the Governor-General the public welfare requires,
he may, by executive order," effect the changes enumerated therein (as in said
section 68), including the change of the seat of the government "to such place ...
as the public interest requires." The opening statement of said Section 1 of Act
No. 1748 — which was not included in Section 68 of the Revised Administrative
Code — governed the time at which, or the conditions under which, the powers
therein conferred could be exercised; whereas the last part of the first sentence
of said section referred exclusively to the place to which the seat of the
government was to be transferred.
At any rate, the conclusion would be the same, insofar as the case at bar is
concerned, even if we assumed that the phrase "as the public welfare may
require," in said Section 68, qualifies all other clauses thereof. It is true that
in Calalang vs. Williams (70 Phil. 726) and People vs. Rosenthal (68 Phil. 328),
this Court had upheld "public welfare" and "public interest," respectively, as
sufficient standards for a valid delegation of the authority to execute the law. But,
the doctrine laid down in these cases — as all judicial pronouncements — must
be construed in relation to the specific facts and issues involved therein, outside
of which they do not constitute precedents and have no binding effect.4 The law
construed in the Calalang case conferred upon the Director of Public Works, with
the approval of the Secretary of Public Works and Communications, the power to
issue rules and regulations to promote safe transitupon national roads and
streets. Upon the other hand, the Rosenthal case referred to the authority of the
Insular Treasurer, under Act No. 2581, to issue and cancel certificates or permits
for the sale of speculative securities. Both cases involved grants
to administrative officers of powers related to the exercise of their administrative
functions, calling for the determination of questions of fact.
Such is not the nature of the powers dealt with in section 68. As above indicated,
the creation of municipalities, is not an administrative function, but one which is
essentially and eminently legislative in character. The question of whether or not
"public interest" demands the exercise of such power is not one of fact. it is
"purely a legislativequestion "(Carolina-Virginia Coastal Highway vs. Coastal
Turnpike Authority, 74 S.E. 2d. 310-313, 315-318), or a political question (Udall
vs. Severn, 79 P. 2d. 347-349). As the Supreme Court of Wisconsin has aptly
characterized it, "the question as to whether incorporation is for the best
interest of the community in any case is emphatically a question of public policy
and statecraft" (In re Village of North Milwaukee, 67 N.W. 1033, 1035-1037).
For this reason, courts of justice have annulled, as constituting undue delegation
of legislative powers, state laws granting the judicial department, the power to
determine whether certain territories should be annexed to a particular
municipality (Udall vs. Severn, supra, 258-359); or vesting in a Commission the
right to determine the plan and frame of government of proposed villages and
what functions shall be exercised by the same, although the powers and
functions of the village are specifically limited by statute (In re Municipal
Charters, 86 Atl. 307-308); or conferring upon courts the authority to declare a
given town or village incorporated, and designate its metes and bounds, upon
petition of a majority of the taxable inhabitants thereof, setting forth the area
desired to be included in such village (Territory ex rel Kelly vs. Stewart, 23 Pac.
405-409); or authorizing the territory of a town, containing a given area and
population, to be incorporated as a town, on certain steps being taken by the
inhabitants thereof and on certain determination by a court and subsequent vote
of the inhabitants in favor thereof, insofar as the court is allowed to determine
whether the lands embraced in the petition "ought justly" to be included in the
village, and whether the interest of the inhabitants will be promoted by such
incorporation, and to enlarge and diminish the boundaries of the proposed village
"as justice may require" (In re Villages of North Milwaukee, 67 N.W. 1035-1037);
or creating a Municipal Board of Control which shall determine whether or not the
laying out, construction or operation of a toll road is in the "public interest" and
whether the requirements of the law had been complied with, in which case the
board shall enter an order creating a municipal corporation and fixing the name
of the same (Carolina-Virginia Coastal Highway vs. Coastal Turnpike Authority,
74 S.E. 2d. 310).
Insofar as the validity of a delegation of power by Congress to the President is

concerned, the case of Schechter Poultry Corporation vs. U.S. (79 L. Ed. 1570)
is quite relevant to the one at bar. The Schechter case involved the
constitutionality of Section 3 of the National Industrial Recovery Act authorizing
the President of the United States to approve "codes of fair competition"
submitted to him by one or more trade or industrial associations or corporations
which "impose no inequitable restrictions on admission to membership therein

and are truly representative," provided that such codes are not designed "to
promote monopolies or to eliminate or oppress small enterprises and will not
operate to discriminate against them, and will tend to effectuate the policy" of
said Act. The Federal Supreme Court held:
To summarize and conclude upon this point: Sec. 3 of the Recovery Act is
without precedent. It supplies no standards for any trade, industry or
activity. It does not undertake to prescribe rules of conduct to be applied to
particular states of fact determined by appropriate administrative
procedure. Instead of prescribing rules of conduct, it authorizes the making
of codes to prescribe them. For that legislative undertaking, Sec. 3 sets up
no standards, aside from the statement of the general aims of
rehabilitation, correction and expansion described in Sec. 1. In view of the
scope of that broad declaration, and of the nature of the few restrictions
that are imposed, the discretion of the President in approving or
prescribing codes, and thus enacting laws for the government of trade and
industry throughout the country, is virtually unfettered. We think that the
code making authority thus conferred is an unconstitutional delegation of
legislative power.
If the term "unfair competition" is so broad as to vest in the President a discretion

that is "virtually unfettered." and, consequently, tantamount to a delegation of
legislative power, it is obvious that "public welfare," which has even a broader
connotation, leads to the same result. In fact, if the validity of the delegation of
powers made in Section 68 were upheld, there would no longer be any legal
impediment to a statutory grant of authority to the President to do anything which,
in his opinion, may be required by public welfare or public interest. Such grant of
authority would be a virtual abdication of the powers of Congress in favor of the
Executive, and would bring about a total collapse of the democratic system
established by our Constitution, which it is the special duty and privilege of this
Court to uphold.
It may not be amiss to note that the executive orders in question were issued
after the legislative bills for the creation of the municipalities involved in this case
had failed to pass Congress. A better proof of the fact that the issuance of said
executive orders entails the exercise of purely legislative functions can hardly be
given.
Again, Section 10 (1) of Article VII of our fundamental law ordains:
The President shall have control of all the executive departments, bureaus,
or offices, exercise general supervision over all local governments as may
be provided by law, and take care that the laws be faithfully executed.
The power of control under this provision implies the right of the President to
interfere in the exercise of such discretion as may be vested by law in the officers
of the executive departments, bureaus, or offices of the national government, as
well as to act in lieu of such officers. This power is denied by the Constitution to
the Executive, insofar as local governments are concerned. With respect to the
latter, the fundamental law permits him to wield no more authority than that of
checking whether said local governments or the officers thereof perform their
duties as provided by statutory enactments. Hence, the President cannot
interfere with local governments, so long as the same or its officers act Within the
scope of their authority. He may not enact an ordinance which the municipal
council has failed or refused to pass, even if it had thereby violated a duty
imposed thereto by law, although he may see to it that the corresponding
provincial officials take appropriate disciplinary action therefor. Neither may he
vote, set aside or annul an ordinance passed by said council within the scope of
its jurisdiction, no matter how patently unwise it may be. He may not even
suspend an elective official of a regular municipality or take any disciplinary
action against him, except on appeal from a decision of the corresponding
provincial board.5
Upon the other hand if the President could create a municipality, he could, in
effect, remove any of its officials, by creating a new municipality and including
therein the barrio in which the official concerned resides, for his office would
thereby become vacant.6 Thus, by merely brandishing the power to create a new
municipality (if he had it), without actually creating it, he could compel local
officials to submit to his dictation, thereby, in effect, exercising over them the
power of control denied to him by the Constitution.
Then, also, the power of control of the President over executive departments,
bureaus or offices implies no more than the authority to assume directly the
functions thereof or to interfere in the exercise of discretion by its officials.
Manifestly, such control does not include the authority either to abolish an
executive department or bureau, or to create a new one. As a consequence, the
alleged power of the President to create municipal corporations would
necessarily connote the exercise by him of an authority even greater than that of
control which he has over the executive departments, bureaus or offices. In other
words, Section 68 of the Revised Administrative Code does not merely fail to
comply with the constitutional mandate above quoted. Instead of giving the
President less power over local governments than that vested in him over the
executive departments, bureaus or offices, it reverses the process and does
the exact opposite, by conferring upon him more power over municipal
corporations than that which he has over said executive departments, bureaus or
offices.
In short, even if it did entail an undue delegation of legislative powers, as it

certainly does, said Section 68, as part of the Revised Administrative Code,
approved on March 10, 1917, must be deemed repealed by the subsequent
adoption of the Constitution, in 1935, which is utterly incompatible and
inconsistent with said statutory enactment.7
There are only two (2) other points left for consideration, namely, respondent's
claim (a) that "not all the proper parties" — referring to the officers of the newly
created municipalities — "have been impleaded in this case," and (b) that "the
present petition is premature."
As regards the first point, suffice it to say that the records do not show, and the
parties do not claim, that the officers of any of said municipalities have been
appointed or elected and assumed office. At any rate, the Solicitor General, who
has appeared on behalf of respondent Auditor General, is the officer authorized
by law "to act and represent the Government of the Philippines, its offices and
agents, in any official investigation, proceeding or matter requiring the services of
a lawyer" (Section 1661, Revised Administrative Code), and, in connection with
the creation of the aforementioned municipalities, which involves a political, not
proprietary, function, said local officials, if any, are mere agents or
representatives of the national government. Their interest in the case at bar has,
accordingly, been, in effect, duly represented.8
With respect to the second point, respondent alleges that he has not as yet acted
on any of the executive order & in question and has not intimated how he would
act in connection therewith. It is, however, a matter of common, public
knowledge, subject to judicial cognizance, that the President has, for many
years, issued executive orders creating municipal corporations and that the same
have been organized and in actual operation, thus indicating, without

peradventure of doubt, that the expenditures incidental thereto have been
sanctioned, approved or passed in audit by the General Auditing Office and its
officials. There is no reason to believe, therefore, that respondent would adopt a
different policy as regards the new municipalities involved in this case, in the
absence of an allegation to such effect, and none has been made by him.
WHEREFORE, the Executive Orders in question are hereby declared null and
void ab initio and the respondent permanently restrained from passing in audit
any expenditure of public funds in implementation of said Executive Orders or
any disbursement by the municipalities above referred to. It is so ordered.

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CONSTITUTIONAL LAW 1

A.M. No. 88-7-1861-RTC October 5, 1988

IN RE: DESIGNATION OF JUDGE RODOLFO U. MANZANO AS MEMBER OF

Hon. Marcelo Fernan

Thru channels: Hon. Leo Medialdea

By Executive Order RF6-04 issued on June 21, 1988 by the

Before I may accept the appointment and enter in the discharge of

(1) Authorizing me to accept the appointment and to as

(2) Considering my membership in the Committee as

(3) Consider my membership in the said Committee as

May I please be favored soon by your action on this request.

Very respectfully yours,

(Sgd) RODOLFO U. MANZANO

An examination of Executive Order No. 856, as amended, reveals that

3.3 Receive complaints against any apprehending officer, jail

3.5 Recommend revision of any law or regulation which is believed

It is evident that such Provincial/City Committees on Justice perform

Section 6. Supervision.—The Provincial/City Committees on Justice

Considering that membership of Judge Manzano in the Ilocos Norte Provincial

2. While the doctrine of separation of powers is a relative theory not

confined to the task of adjudication. Fidelity to his sworn

ACCORDINGLY, the aforesaid request of Judge Rodolfo U. Manzano is

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

JOSE A. ANGARA, petitioner, vs.

(2) That on October 7, 1935, the provincial board of canvassers,

(4) That on December 3, 1935, the National Assembly in session

RESOLUCION CONFIRMANDO LAS ACTAS DE AQUELLOS

Se resuelve: Que las actas de eleccion de los Diputados contra

Adoptada, 3 de diciembre, 1935.

(6) That on December 9, 1935, the Electoral Commission adopted a

6. La Comision no considerara ninguna protesta que no se haya

merits of controversies submitted to them for decision and to matters

(e) That under paragraph 13 of section 1 of the ordinance appended to the

On February 25, 1936, the Solicitor-General appeared and filed an answer in

(b) That the resolution of the National Assembly of December 3, 1935,

(c) That the Electoral Commission is a body invested with quasi-judicial

impliedly conferred upon it by the Constitution, by reason of its quasi-

(e) That the Electoral Commission is an independent entity created by the

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

(g) That paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of

There was no appearance for the other respondents.

2. Has the said Electoral Commission acted without or in excess of its

The separation of powers is a fundamental principle in our system of

As any human production, our Constitution is of course lacking perfection and

The Constitution is a definition of the powers of government. Who is to determine

Here is then presented an actual controversy involving as it does a conflict of a

Having disposed of the question of jurisdiction, we shall now proceed to pass

"SEC. 4. There shall be an Electoral Commission composed of three Justice of

The elections, returns and qualifications of the members of either house

judged by an Electoral Commission, constituted, as to each House, by

The idea of creating a Tribunal of Constitutional Security with comprehensive

During the discussion of the amendment introduced by Delegates Labrador,

xxx xxx xxx

Mr. ROXAS. If there is no question about the election of the members,

Mr. ROXAS. There is no need of confirmation. As the gentleman knows,

constitutional. It is not necessary. After a man files his credentials that he

Mr. VENTURA. But I do not believe that that is sufficient, as we have

However, if the assembly desires to annul the power of the commission, it

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

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.