Endencia vs.

David on November 6, 2010 Separation of Powers Saturnino David, the then Collector of Internal Revenue, ordered the taxing of Justice Pastor Endencias SEC. 13. and Justice Fernando Jugos salary pursuant to Sec 13 of RA 590 which provides that No salary wherever received by any public officer of the Republic of the Philippines shall be considered as exempt from the income tax, payment of which is hereby declared not to be a diminution of his compensation fixed by the Constitution or by law. According to the brief of the Solicitor General on behalf of appellant Collector of Internal Revenue, our decision in the case of Perfecto vs. Meer, supra, was not received favorably by Congress, because immediately after its promulgation, Congress enacted Republic Act No. 590. To bring home his point, the Solicitor General reproduces what he considers the pertinent discussion in the Lower House of House Bill No. 1127 which became Republic Act No. 590. ISSUE: Whether or not Sec 13 of RA 590 is constitutional.

HELD: By legislative fiat as enunciated in section 13, Republic Act No. 590, Congress says that taxing the salary of a judicial officer is not a decrease of compensation. This is a clear example of interpretation or ascertainment of the meaning of the phrase which shall not be diminished during their continuance in office, found in section 9, Article VIII of the Constitution, referring to the salaries of judicial officers. This act of interpreting the Constitution or any part thereof by the Legislature is an invasion of the well-defined and established province and jurisdiction of the Judiciary. The rule is recognized elsewhere that the legislature cannot pass any declaratory act, or act declaratory of what the law was before its passage, so as to give it any binding weight with the courts. A legislative definition of a word as used in a statute is not conclusive of its meaning as used elsewhere; otherwise, the legislature would be usurping a judicial function in defining a term. ** The reason behind the Court and exemption this in the is to Constitution, preserve as the interpreted by the United States Federal Supreme Court, independence of the Judiciary, not only of this High Tribunal but of the other courts, whose present membership number more than 990 judicial

officials. The independence of the judges is of far greater importance than any revenue that could come from taxing their salaries. The doctrine laid down in the case of Perfecto vs. Meer, to the effect that the collection of income tax on the salary of a judicial officer is a diminution thereof and so violates the Constitution. The interpretation and application of the Constitution and of statutes is within the exclusive province and jurisdiction of the judicial department, and that in enacting a law, the Legislature may not legally provide therein that it be interpreted in such a way that it may not violate a Constitutional prohibition, thereby tying the hands of the courts in their task of later interpreting said statute, especially when the interpretation sought and provided in said statute runs counter to a previous interpretation already given in a case by the highest court of the land.

Section 6(8) of Republic Act No. 7941 (RA 7941), otherwise known as the Party-List System Act, provides: Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 190529 April 29, 2010 Section 6. Removal and/or Cancellation of Registration. The COMELEC may motu proprio or upon verified complaint of any interested party, remove or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition on any of the following grounds: xxxx (8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered.[Emphasis supplied.] The COMELEC replicated this provision in COMELEC Resolution No. 2847 the Rules and Regulations Governing the Election of the Party-List Representatives through the Party-List System which it promulgated on June 25, 1996. For the upcoming May 2010 elections, the COMELEC en banc issued on October 13, 2009 Resolution No. 8679 deleting several party-list groups or organizations from the list of registered national, regional or sectoral parties, organizations or coalitions. Among the party-list organizations affected was PGBI; it was delisted because it failed to get 2% of the votes cast in 2004 and it did not participate in the 2007 elections. Nevertheless, the COMELEC stated in this Resolution that any national, regional sectoral party or organizations or coalitions adversely affected can personally or through its authorized

PHILIPPINE GUARDIANS BROTHERHOOD, INC. (PGBI), represented by its Secretary-General GEORGE "FGBF GEORGE" DULDULAO, Petitioner, vs. COMMISSION ON ELECTIONS, Respondent. RESOLUTION BRION, J.: The Philippine Guardians Brotherhood, Inc. (PGBI) seeks in this petition for certiorari1 and in the motion for reconsideration it subsequently filed to nullify Commission on Elections (COMELEC) Resolution No. 8679 dated October 13, 2009 insofar as it relates to PGBI, and the Resolution dated December 9, 2009 denying PGBIs motion for reconsideration in SPP No. 09-004 (MP). Via these resolutions, the COMELEC delisted PGBI from the roster of registered national, regional or sectoral parties, organizations or coalitions under the party-list system. BACKGROUND

representative file a verified opposition on October 26, 2009. PGBI filed its Opposition to Resolution No. 8679, but likewise sought, through its pleading, the admission ad cautelam of its petition for accreditation as a party-list organization under the Party-List System Act. Among other arguments, PGBI asserted that: (1) The assailed resolution negates the right of movant and those similarly situated to invoke Section 4 of R.A. No. 7941, which allows any party, organization and coalition already registered with the Commission to no longer register anew; the party though is required to file with the Commission, not later than ninety (90) days before the election, a manifestation of its desire to participate in the partylist system; since PGBI filed a Request/Manifestation seeking a deferment of its participation in the 2007 elections within the required period prior to the 2007 elections, it has the option to choose whether or not to participate in the next succeeding election under the same conditions as to rights conferred and responsibilities imposed; (2) The Supreme Courts ruling in G.R. No. 177548 Philippine Mines Safety Environment Association, also known as "MINERO" v. Commission on Elections cannot apply in the instant controversy for two reasons: (a) the factual milieu of the cited case is removed from PGBIs; (b) MINERO, prior to delisting, was afforded the opportunity to be heard, while PGBI and the 25 others similarly affected by Resolution No. 8679 were not. Additionally, the requirement of Section 6(8) has been relaxed by the

Courts ruling in G.R. No. 179271 (Banat v. COMELEC) and the exclusion of PGBI and the 25 other party-list is a denial of the equal protection of the laws; (3) The implementation of the challenged resolution should be suspended and/or aborted to prevent a miscarriage of justice in view of the failure to notify the parties in accordance with the same Section 6(8) or R.A. No. 7941.2 The COMELEC denied PGBIs motion/opposition for lack of merit. First, the COMELEC observed that PGBI clearly misunderstood the import of Section 4 of R.A. 7941. 3 The provision simply means that without the required manifestation or if a party or organization does not participate, the exemption from registration does not arise and the party, organization or coalition must go through the process again and apply for requalification; a request for deferment would not exempt PGBI from registering anew. Second, the MINERO ruling is squarely in point, as MINERO failed to get 2% of the votes in 2001 and did not participate at all in the 2004 elections. Third, PGBI was given an opportunity to be heard or to seek the reconsideration of the action or ruling complained of the essence of due process; this is clear from Resolution No. 8679 which expressly gave the adversely affected parties the opportunity to file their opposition.

As regards the alternative relief of application for accreditation, the COMELEC found the motion to have been filed out of time, as August 17, 2009 was the deadline for accreditation provided in Resolution 8646. The motion was obviously filed months after the deadline. PGBI came to us in its petition for certiorari, arguing the same positions it raised with the COMELEC when it moved to reconsider its delisting. We initially dismissed the petition in light of our ruling in Philippine Mines Safety Environment Association, also known as "MINERO" v. Commission on Elections (Minero);4 we said that no grave abuse of discretion exists in a ruling that correctly applies the prevailing law and jurisprudence. Applying Section 6(8) of RA 7941, the Court disqualified MINERO under the following reasoning: Since petitioner by its own admission failed to get 2% of the votes in 2001 and did not participate at all in the 2004 elections, it necessarily failed to get at least two per centum (2%) of the votes cast in the two preceding elections. COMELEC, therefore, is not duty bound to certify it. PGBI subsequently moved to reconsider the dismissal of its petition. Among other arguments, PGBI claimed that the dismissal of the petition was contrary to law, the evidence and existing jurisprudence. Essentially, PGBI asserts that Section 6(8) of RA 7941 does not apply if one is to follow the tenor and import of the deliberations inclusive of the interpellations in Senate Bill No. 1913 on October 19, 1994. It cited the following excerpts from the Records of the Senate:

Senator Gonzales: On the other hand, Mr. President, under ground no. (7), Section 5 there are actually two grounds it states: " Failure to participate in the last two (2) preceding elections or its failure to obtain at least ten percent (10%) of the votes case under the party-list system in either of the last two (2) preceding elections for the constituency in which it has registered" In short, the first ground is that, it failed to participate in the last two (2) preceding elections. The second is, failure to obtain at least 10 percent of the votes cast under the partylist system in either of the last two preceding elections, Mr. President, Senator Tolentino: Actually, these are two separate grounds. Senator Gonzales: There are actually two grounds, Mr. President. Senator Tolentino: Yes, Mr. President.5 [Underscoring supplied.] PGBI thus asserts that Section 6(8) does not apply to its situation, as it is obvious that it failed to participate in one (1) but not in the two (2) preceding elections. Implied in this is that it also failed to secure the required percentage in one (1) but not in the two (2) preceding elections. Considering PGBIs arguments, we granted the motion and reinstated the petition in the courts docket. THE ISSUES

We are called upon to resolve: (a) whether there is legal basis for delisting PGBI; and (b) whether PGBIs right to due process was violated. OUR RULING We find the petition partly impressed with merit. a. The Minero Ruling Our Minero ruling is an erroneous application of Section 6(8) of RA 7941; hence, it cannot sustain PGBIs delisting from the roster of registered national, regional or sectoral parties, organizations or coalitions under the party-list system. First, the law is clear the COMELEC may motu proprio or upon verified complaint of any interested party, remove or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition if it: (a) fails to participate in the last two (2) preceding elections; or (b) fails to obtain at least two per centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered.6 The word "or" is a disjunctive term signifying disassociation and independence of one thing from the other things enumerated; it should, as a rule, be construed in the sense in which it ordinarily implies, as a disjunctive word.7 Thus, the plain, clear and unmistakable language of the law provides for two (2) separate reasons for delisting. Second, Minero is diametrically opposed to the legislative intent of Section 6(8) of RA 7941, as PGBIs cited congressional deliberations clearly show.

Minero therefore simply cannot stand. Its basic defect lies in its characterization of the non-participation of a party-list organization in an election as similar to a failure to garner the 2% threshold party-list vote. What Minero effectively holds is that a party list organization that does not participate in an election necessarily gets, by default, less than 2% of the party-list votes. To be sure, this is a confused interpretation of the law, given the laws clear and categorical language and the legislative intent to treat the two scenarios differently. A delisting based on a mixture or fusion of these two different and separate grounds for delisting is therefore a strained application of the law in jurisdictional terms, it is an interpretation not within the contemplation of the framers of the law and hence is a gravely abusive interpretation of the law. 8 What we say here should of course take into account our ruling in Barangay Association for Advancement and National Transparency v. COMELEC9 (Banat) where we partly invalidated the 2% party-list vote requirement provided in RA 7941 as follows: We rule that, in computing the allocation of additional seats, the continued operation of the two percent threshold for the distribution of the additional seats as found in the second clause of Section 11(b) of R.A. No. 7941 is unconstitutional. This Court finds that the two percent threshold makes it mathematically impossible to achieve the maximum number of available party list seats when the number of available party list seats exceeds 50. The continued operation of the two percent threshold in the distribution of the additional seats frustrates the attainment of the permissive ceiling that 20% of the members of the House of Representatives shall consist of party-list representatives.

The disqualification for failure to get 2% party-list votes in two (2) preceding elections should therefore be understood in light of the Banat ruling that party-list groups or organizations garnering less than 2% of the party-list votes may yet qualify for a seat in the allocation of additional seats. We need not extensively discuss Banats significance, except to state that a party-list group or organization which qualified in the second round of seat allocation cannot now validly be delisted for the reason alone that it garnered less than 2% in the last two elections. In other words, the application of this disqualification should henceforth be contingent on the percentage of party-list votes garnered by the last party-list organization that qualified for a seat in the House of Representatives, a percentage that is less than the 2% threshold invalidated in Banat. The disqualification should now necessarily be read to apply to party-list groups or organizations that did not qualify for a seat in the two preceding elections for the constituency in which it registered. To reiterate, (a) Section 6(8) of RA 7941 provides for two separate grounds for delisting; these grounds cannot be mixed or combined to support delisting; and (b) the disqualification for failure to garner 2% party-list votes in two preceding elections should now be understood, in light of the Banat ruling, to mean failure to qualify for a party-list seat in two preceding elections for the constituency in which it has registered. This, we declare, is how Section 6(8) of RA 7941 should be understood and applied. We do so under our authority to state what the law is, 10 and as an exception to the application of the principle of stare decisis.

The doctrine of stare decisis et non quieta movere (to adhere to precedents and not to unsettle things which are established) is embodied in Article 8 of the Civil Code of the Philippines which provides, thus: ART. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines. The doctrine enjoins adherence to judicial precedents. It requires courts in a country to follow the rule established in a decision of its Supreme Court. That decision becomes a judicial precedent to be followed in subsequent cases by all courts in the land. The doctrine of stare decisis is based on the principle that once a question of law has been examined and decided, it should be deemed settled and closed to further argument. 11The doctrine is grounded on the necessity for securing certainty and stability of judicial decisions, thus: Time and again, the court has held that it is a very desirable and necessary judicial practice that when a court has laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases in which the facts are substantially the same. Stare decisis et non quieta movere. Stand by the decisions and disturb not what is settled. Stare decisis simply means that for the sake of certainty, a conclusion reached in one case should be applied to those that follow if the facts are substantially the same , even though the parties may be different. It proceeds from the first principle of justice that, absent any powerful countervailing considerations, like cases ought to be decided alike. Thus, where the same questions relating to the same event have been put forward by the parties

similarly situated as in a previous case litigated and decided by a competent court, the rule of stare decisis is a bar to any attempt to relitigate the same issue.12 The doctrine though is not cast in stone for upon a showing that circumstances attendant in a particular case override the great benefits derived by our judicial system from the doctrine of stare decisis, the Court is justified in setting it aside.13 As our discussion above shows, the most compelling reason to abandon Minero exists; it was clearly an erroneous application of the law an application that the principle of stability or predictability of decisions alone cannot sustain. Minero did unnecessary violence to the language of the law, the intent of the legislature, and to the rule of law in general. Clearly, we cannot allow PGBI to be prejudiced by the continuing validity of an erroneous ruling. Thus, we now abandon Minero and strike it out from our ruling case law. We are aware that PGBIs situation a party list group or organization that failed to garner 2% in a prior election and immediately thereafter did not participate in the preceding election is something that is not covered by Section 6(8) of RA 7941. From this perspective, it may be an unintended gap in the law and as such is a matter for Congress to address. We cannot and do not address matters over which full discretionary authority is given by the Constitution to the legislature; to do so will offend the principle of separation of powers. If a gap indeed exists, then the present case should bring this concern to the legislatures notice. b. The Issue of Due Process

On the due process issue, we agree with the COMELEC that PGBIs right to due process was not violated for PGBI was given an opportunity to seek, as it did seek, a reconsideration of Resolution No. 8679. The essence of due process, we have consistently held, is simply the opportunity to be heard; as applied to administrative proceedings, due process is the opportunity to explain ones side or the opportunity to seek a reconsideration of the action or ruling complained of. A formal or trial-type hearing is not at all times and in all instances essential. The requirement is satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand. What is frowned upon is absolute lack of notice and hearing x x x.14 We find it obvious under the attendant circumstances that PGBI was not denied due process. In any case, given the result of this Resolution, PGBI has no longer any cause for complaint on due process grounds. WHEREFORE, premises considered, we GRANT the petition and accordingly ANNUL COMELEC Resolution No. 8679 dated October 13, 2009 insofar as the petitioner PGBI is concerned, and the Resolution dated December 9, 2009 which denied PGBIs motion for reconsideration in SPP No. 09-004 (MP). PGBI is qualified to be voted upon as a partylist group or organization in the coming May 2010 elections. SO ORDERED. ARTURO D. BRION Associate Justice WE CONCUR:

REYNATO S. PUNO Chief Justice ANTONIO T. CARPIO Associate Justice CONCHITA CARPIO MORALES Associate Justice ANTONIO EDUARDO B. NACHURA Associate Justice DIOSDADO M. PERALTA Associate Justice MARIANO C. DEL CASTILLO Associate Justice MARTIN S. VILLARAMA, JR. Associate Justice RENATO C. CORONA Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice LUCAS P. BERSAMIN Associate Justice ROBERTO A. ABAD Associate Justice JOSE PORTUGAL PEREZ Associate Justice

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court. REYNATO S. PUNO Chief Justice

Footnotes
1

Filed under Rule 65 of the RULES OF COURT. Rollo, pp. 42-48.

Sec. 4. Manifestation to Participate in the Party-List System. Any party, organization or coalition already registered with the Commission need not register anew. However, such party, organization or coalition shall file with the Commission, not later than ninety (90) days before the election, a manifestation of its desire to participate in the party-list system.
4

G.R. No. 177548, May 10, 2007; see rollo of G.R. No. 177548, pp. 46-48.
5

JOSE CATRAL MENDOZA Associate Justice CERTIFICATION

Rollo, pp. 74-75. Numbering supplied.

Agpalo, Statutory Construction, p. 204 (2003); see also The Heirs of George Poe v. Malayan Insurance Company, Inc. G.R. No. 156302, April 7, 2009.
8

DISSENTING OPINION ABAD, J.: This case stems from the Commission on Elections (COMELEC) En Banc resolution removing petitioner Philippine Guardians Brotherhood, Inc. (PGBI) from the roster of registered party-list organizations because of its failure to obtain at least 2% party-list votes in the May 2004 election and to participate in the May 2007 election. I agree with the view of Justice Arturo D. Brion that Republic Act (R.A.) 7941 provides for two separate grounds for delisting a party-list organization, namely: a) failure to participate in the last two preceding elections; or b) failure to garner at least 2% of the votes cast under the party-list system in the two preceding elections for the constituency in which it has registered. I also agree that because of the Courts decision in BANAT,1 the needed minimum 2% of the votes cast in the two preceding elections should now be understood to mean the actual percentage of the votes garnered by the last party-list organization that qualified for a seat in the House of Representatives. But this could not apply to PGBI because BANAT took effect only in the preceding May 2007 elections and PGBI did not run in the same. It ran in the preceding May 2004 elections, when the BANAT ruling did not yet exist, but failed to get at least 2% of the votes cast in those elections. I must disagree with the ponencias view that the Court should reverse the Minero ruling2 that invoked Section 6(8) of R.A. 7941, which provides:

See Varias v. Commission on Elections, G.R. No. 189078, February 11, 2010 where we held that the use of wrong considerations is an act not in contemplation of law a jurisdictional error for this is one way of gravely abusing ones discretion.
9

G.R. No. 179271, April 21, 2009.

10

Marbury v. Madison (1 Cranch [5 US] 137, 2 L ed 60 [1803]) holds that "it is emphatically the province and duty of the judicial department to say what the law is."
11

See Lazatin v. Desierto, G.R. No. 147097, June 5, 2009, citing Fermin v. People, G.R. No. 157643, March 28, 2008, 550 SCRA 132.
12

Id., citing Chinese Young Men's Christian Association of the Philippine Islands v. Remington Steel Corporation, G.R. No. 159422, March 28, 2008, 550 SCRA 180.
13

Ibid. Bautista v. Comelec, 460 Phil, 459, 478 (2003).

14

The Lawphil Project - Arellano Law Foundation

Section 6. Refusal and/or Cancellation of Registration. -The COMELEC may, motu proprio or upon verified complaint of any interested party, refuse or cancel, after due notice and hearing, the registration of any national, regional, or sectoral party, organization or coalition on any of the following grounds: xxxx (8) It fails to participate in the last two (2) preceding elections fails to obtain at least two per centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered. Since by its own admission, Minero failed to get at least 2% of the votes in the 2001 elections and did not participate at all in the 2004 elections, the Court held that it necessarily failed to get at least 2% of the votes cast in the two preceding elections. The COMELEC was thus justified in canceling its registration.

last two preceding elections or failure to garner at least 2% of the votes cast in such electionsto be complimentary. Their purpose is to put every party-list organization, which won the right to be registered, to a two-election wringer, a voters preference test, for lack of a better term to describe it. This means that, to remain in the party-list register and enjoy the right to take part in the party-list election, a party must prove by the results of the preceding two elections that it retains the required level of voters preference. Failing in this, such party shall be dropped by the COMELEC, without prejudice to its applying for new registration after a mandatory one-term rest. If the ponencias views were to be followed, petitioner PGBI would be able to circumvent the voters preference test that it needs to pass to remain in the register of party-list organizations. It would succeed in putting one over the parties that exerted efforts to get the required level of voters preference. The following example should illustrate the unfair result:

The ponencia would allow PGBI to remain in the register of party-list organizations and avert disqualifications Election Year Party-List X Party-List Y PGBI Party because, according to it, PGBI cannot be said to May 2004 Deficient votes Did not run Deficient votes have failed to get at least 2% of the votes cast in the two preceding elections because it only ran in May 2007 Deficient votes Did not run Did not run one of those two elections. It cannot also be said to have failed to take part in the two preceding May 2010 Cancelled Cancelled Not cancelled elections because it ran in one of them. What is The register of party-list organizations cannot be allowed to needed, the ponencia claims, are two strikes for the same grow infinitely. The system cannot tolerate sectoral parties ground in the two preceding elections. with low-levels of voters preference to remain on the ballot. For this reason, the legislature established a mechanism for But it is evident from Section 6(8) above that the legislature intended the two separate testsfailure to take part in the

attrition, the enforcement of which is an important responsibility of the COMELEC. The Court must not abandon Minero. I vote to deny PGBIs motion for reconsideration. ROBERTO A. ABAD Associate Justice

Footnotes
1

Barangay Association for National Advancement and Transparency v. Commission on Elections, G.R. No. 179295, April 21, 2009.
2

Philippine Mine Safety & Environment Association, also known as "MINERO" v. Commission on Elections, G.R. No. 177548, May 10, 2007.

The complaint filed against the accused reads: Republic of the Philippines SUPREME COURT Manila SECOND DIVISION That on or about 9:00 o'clock, p.m., the 5th day of September, 1964, in the poblacion, Municipality of Batangas, Province of Batangas, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a person not authorized by law, did then and there wilfully, unlawfully and feloniously keep in his possession, custody and direct control a revolver Cal. .22, RG8 German Made with one (1) live ammunition and four (4) empty shells without first securing the necessary permit or license to possess the same. At the arraignment on September 11, 1964, the accused entered a plea of not guilty, after which trial was accordingly held. The accused admitted that on September 5, 1964, he was in possession of the revolver and the ammunition described in the complaint, without the requisite license or permit. He, however, claimed to be entitled to exoneration because, although he had no license or permit, he had an appointment as Secret Agent from the Provincial Governor of Batangas and an appointment as Confidential Agent from the PC Provincial Commander, and the said appointments expressly carried with them the authority to possess and carry the firearm in question. Indeed, the accused had appointments from the abovementioned officials as claimed by him. His appointment from Governor Feliciano Leviste, dated December 10, 1962, reads:

G.R. No. L-30061 February 27, 1974 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellees, vs. JOSE JABINAL Y CARMEN, defendant-appellant. Office of the Solicitor General Felix V. Makasiar and Solicitor Antonio M. Martinez for plaintiff-appellee. Pedro Panganiban y Tolentino for defendant-appellant.

ANTONIO, J.:p Appeal from the judgment of the Municipal Court of Batangas (provincial capital), Batangas, in Criminal Case No. 889, finding the accused guilty of the crime of Illegal Possession of Firearm and Ammunition and sentencing him to suffer an indeterminate penalty ranging from one (1) year and one (1) day to two (2) years imprisonment, with the accessories provided by law, which raises in issue the validity of his conviction based on a retroactive application of Our ruling in People v. Mapa. 1

Reposing special trust and confidence in your civic spirit, and trusting that you will be an effective agent in the detection of crimes and in the preservation of peace and order in the province of Batangas, especially with respect to the suppression of trafficking in explosives, jueteng, illegal cockfighting, cattle rustling, robbery and the detection of unlicensed firearms, you are hereby appointed a SECRET AGENT of the undersigned, the appointment to take effect immediately, or as soon as you have qualified for the position. As such Secret Agent, your duties shall be those generally of a peace officer and particularly to help in the preservation of peace and order in this province and to make reports thereon to me once or twice a month. It should be clearly understood that any abuse of authority on your part shall be considered sufficient ground for the automatic cancellation of your appointment and immediate separation from the service. In accordance with the decision of the Supreme Court in G.R. No. L-12088 dated December 23, 1959, you will have the right to bear a firearm, particularly described below, for use in connection with the performance of your duties.

(Sgd.) FELICIA Provincial r FIREARM AUTHORIZED TO CARRY: Kind: ROHM-Revolver Make: German SN: 64 Cal: .22 On March 15, 1964, the accused was also appointed by the PC Provincial Commander of Batangas as Confidential Agent with duties to furnish information regarding smuggling activities, wanted persons, loose firearms, subversives and other similar subjects that might affect the peace and order condition in Batangas province, and in connection with these duties he was temporarily authorized to possess a ROHM revolver, Cal. .22 RG-8 SN-64, for his personal protection while in the performance of his duties.

The accused contended before the court a quo that in view of his above-mentioned appointments as Secret Agent and Confidential Agent, with authority to possess the firearm subject matter of the prosecution, he was entitled to acquittal on the basis of the Supreme Court's decision in People vs. Macarandang 2 and People vs. Lucero. 3 The By virtue hereof, you may qualify and enter trial court, while conceding on the basis of the evidence of upon the performance of your duties by taking record the accused had really been appointed Secret Agent your oath of office and filing the original and Confidential Agent by the Provincial Governor and the thereof with us. PC Provincial Commander of Batangas, respectively, with authority to possess and carry the firearm described in the Very truly yours,

complaint, nevertheless held the accused in its decision dated December 27, 1968, criminally liable for illegal possession of a firearm and ammunition on the ground that the rulings of the Supreme Court in the cases of Macarandang and Lucero were reversed and abandoned in People vs. Mapa, supra. The court considered as mitigating circumstances the appointments of the accused as Secret Agent and Confidential Agent. Let us advert to Our decisions in People v. Macarandang, supra, People v. Lucero, supra, and People v. Mapa, supra. In Macarandang, We reversed the trial court's judgment of conviction against the accused because it was shown that at the time he was found to possess a certain firearm and ammunition without license or permit, he had an appointment from the Provincial Governor as Secret Agent to assist in the maintenance of peace and order and in the detection of crimes, with authority to hold and carry the said firearm and ammunition. We therefore held that while it is true that the Governor has no authority to issue any firearm license or permit, nevertheless, section 879 of the Revised Administrative Code provides that "peace officers" are exempted from the requirements relating to the issuance of license to possess firearms; and Macarandang's appointment as Secret Agent to assist in the maintenance of peace and order and detection of crimes, sufficiently placed him in the category of a "peace officer" equivalent even to a member of the municipal police who under section 879 of the Revised Administrative Code are exempted from the requirements relating to the issuance of license to possess firearms. In Lucero, We held that under the circumstances of the case, the granting of the temporary use of the firearm to the accused was a necessary means to carry out the lawful purpose of the batallion commander to effect the capture of a Huk leader.

In Mapa, expressly abandoning the doctrine in Macarandang, and by implication, that in Lucero, We sustained the judgment of conviction on the following ground: The law is explicit that except as thereafter specifically allowed, "it shall be unlawful for any person to ... possess any firearm, detached parts of firearms or ammunition therefor, or any instrument or implement used or intended to be used in the manufacture of firearms, parts of firearms, or ammunition." (Sec. 878, as amended by Republic Act No. 4, Revised Administrative Code.) The next section provides that "firearms and ammunition regularly and lawfully issued to officers, soldiers, sailors, or marines [of the Armed Forces of the Philippines], the Philippine Constabulary, guards in the employment of the Bureau of Prisons, municipal police, provincial governors, lieutenant governors, provincial treasurers, municipal treasurers, municipal mayors, and guards of provincial prisoners and jails," are not covered "when such firearms are in possession of such officials and public servants for use in the performance of their official duties." (Sec. 879, Revised Administrative Code.) The law cannot be any clearer. No provision is made for a secret agent. As such he is not exempt. ... .

It will be noted that when appellant was appointed Secret Agent by the Provincial Government in 1962, and Confidential Agent by the Provincial Commander in 1964, the prevailing doctrine on the matter was that laid down by Us in People v. Macarandang (1959) and People v. Lucero (1958). Our decision in People v. Mapa reversing the aforesaid doctrine came only in 1967. The sole question in this appeal is: Should appellant be acquitted on the basis of Our rulings in Macarandang and Lucero, or should his conviction stand in view of the complete reversal of the Macarandang and Lucero doctrine in Mapa? The Solicitor General is of the first view, and he accordingly recommends reversal of the appealed judgment. Decisions of this Court, although in themselves not laws, are nevertheless evidence of what the laws mean, and this is the reason why under Article 8 of the New Civil Code "Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system ... ." The interpretation upon a law by this Court constitutes, in a way, a part of the law as of the date that law originally passed, since this Court's construction merely establishes the contemporaneous legislative intent that law thus construed intends to effectuate. The settled rule supported by numerous authorities is a restatement of legal maxim " legis interpretatio legis vim obtinet" the interpretation placed upon the written law by a competent court has the force of law. The doctrine laid down in Lucero andMacarandang was part of the jurisprudence, hence of the law, of the land, at the time appellant was found in possession of the firearm in question and when he arraigned by the trial court. It is true that the doctrine was overruled in the Mapa case in 1967, but when a doctrine of this Court is overruled and a different view is adopted, the new doctrine should be applied prospectively, and should

not apply to parties who had relied on the old doctrine and acted on the faith thereof. This is especially true in the construction and application of criminal laws, where it is necessary that the punishability of an act be reasonably foreseen for the guidance of society. It follows, therefore, that considering that appellant conferred his appointments as Secret Agent and Confidential Agent and authorized to possess a firearm pursuant to the prevailing doctrine enunciated in Macarandang andLucero, under which no criminal liability would attach to his possession of said firearm in spite of the absence of a license and permit therefor, appellant must be absolved. Certainly, appellant may not be punished for an act which at the time it was done was held not to be punishable. WHEREFORE, the judgment appealed from is hereby reversed, and appellant is acquitted, with costs de oficio. Zaldivar (Chairman), Barredo, Fernandez and Aquino, JJ., concur. Fernando, J., took no part.

Footnotes 1 L-22301, August 30, 1967, 20 SCRA 1164. 2 106 Phil. (1959), 713. 3 103 Phil. (1958), 500.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 177333 April 24, 2009

(f) To operate on its own, either directly or through a subsidiary entity, or license to others, tourism-related activities, including games, amusements and recreational and sports facilities; xxxx Apparently in the exercise of its power granted under the above provision, public respondent ZAMBOECOZONE Authority passed Resolution No. 2006-08-03 dated August 19, 2006 approving the application of private respondent Philippine E-Gaming Jurisdiction, Inc. (PEJI) to be a Master Licensor/Regulator of on-line/internet/electronic gaming/games of chance. PEJI forthwith undertook extensive advertising campaigns representing itself as such licensor/regulator to the international business and gaming community, drawing the Philippine Amusement and Gaming Corporation (PAGCOR) to file the present petition for Prohibition which assails the authority of the ZAMBOECOZONE Authority to operate, license, or regulate the operation of games of chance in the ZAMBOECOZONE. PAGCOR contends that R.A. No. 7903, specifically Section 7(f) thereof, does not give power or authority to the ZAMBOECOZONE Authority to operate, license, or regulate the operation of games of chance in the ZAMBOECOZONE. Citing three (3) statutes, which it claims are in pari materia with R.A. No. 7903 as it likewise created economic zones and provided for the powers and functions of their respective governing and administrative authorities, PAGCOR posits that the grant therein of authority to operate games of chance is clearly expressed, but it is not similarly so in Section 7(f) of R.A. No. 7903.

PHILIPPINE AMUSEMENT AND GAMING CORPORATION (PAGCOR) represented by ATTY. CARLOS R. BAUTISTA, JR., Petitioner, vs. PHILIPPINE GAMING JURISDICTION INCORPORATED (PEJI), ZAMBOANGA CITY SPECIAL ECONOMIC ZONE AUTHORITY, et al., Respondent. DECISION CARPIO MORALES, J.: Before the Court is a petition for Prohibition. Republic Act No. 7903 (R.A. No. 7903), which was enacted into law on February 23, 1995, created the Zamboanga City Special Economic Zone (ZAMBOECOZONE) and the ZAMBOECOZONE Authority. Among other things, the law gives the ZAMBOECOZONE Authority the following power under Sec. 7 (f), viz: Section 7. xxxx

Thus PAGCOR cites these three statutes and their respective pertinent provisions: Republic Act No. 7227, or the "Bases Conversion and Development Authority Act" enacted on March 13, 1992: Section 13. The Subic Bay Metropolitan Authority. xxxx (b) Powers and functions of the Subic Bay Metropolitan Authority. The Subic Bay Metropolitan Authority, otherwise known as the Subic Authority, shall have the following powers and functions: xxxx (7) To operate directly or indirectly or license tourismrelated activities subject to priorities and standards set by the Subic Authority including games and amusements, except horse-racing, dog-racing and casino gambling which shall continue to be licensed by the Philippine Amusement and Gaming Corporation (PAGCOR) upon recommendation of the Conversion Authority; to maintain and preserve the forested areas as a national park; xxxx Republic Act No. 7922 or the "Cagayan Economic Zone Act of 1995" enacted on February 24, 1995: Section 6. Powers and Functions of the Cagayan Economic Zone Authority The Cagayan Economic Zone Authority shall have the following powers and functions:

xxxx (f) To operate on its own, either directly or through a subsidiary entity, or license to others, tourism-related activities, including games, amusements, recreational and sports facilities such as horse-racing, dog-racing gambling, casinos, golf courses, and others, under priorities and standards set by the CEZA; xxxx And Republic Act No. 7916 or the "Special Economic Zone Act of 1995," enacted on February 24, 1995 authorizing other economic zones established under the defunct Export Processing Zone Authority (EPZA) and its successor Philippine Economic Zone Authority (PEZA) to establish casinos and other games of chance under the license of PAGCOR by way of the ipso facto clause, viz: SECTION 51. Ipso Facto Clause. - All privileges, benefits, advantages or exemptions granted to special economic zones under Republic Act No. 7227 shall ipso facto be accorded to special economic zones already created or to be created under this Act. The free port status shall not be vested upon the new special economic zones. PAGCOR maintains that, compared with the above-quoted provisions of the ecozone-related statutes, Section 7(f) of R.A. No. 7903 does not categorically empower the ZAMBOECOZONE Authority to operate, license, or authorize entities to operate games of chance in the area, as the words "games" and "amusement" employed therein do not include "games of chance." Hence, PAGCOR concludes, ZAMBOECOZONE Authoritys grant of license to private respondent PEJI encroached on its (PAGCORs)

authority under Presidential Decree No. 1869 vis-a-vis the above-stated special laws to centralize and regulate all games of chance. ZAMBOECOZONE Authority, in its Comment,1 contends that PAGCOR has no personality to file the present petition as it failed to cite a superior law which proves its claim of having been granted exclusive right and authority to license and regulate all games of chance within the Philippines; and that, contrary to PAGCORs assertion, the words "games" and "amusements" in Section 7(f) of R.A. No. 7903 include "games of chance" as was the intention of the lawmakers when they enacted the law. In its Reply Ex Abundante Ad Cautelam,2 PAGCOR cites the November 27, 2006 Opinion3 rendered by the Office of the President through Deputy Executive Secretary for Legal Affairs Manuel B. Gaite, the pertinent portions of which read: Coming to the issue at hand, the ZAMBOECOZONE Charter simply allows the operation of tourism-related activities including games and amusements without stating any form of gambling activity in its grant of authority to ZAMBOECOZONE. xxxx In view of the foregoing, we are of the opinion that under its legislative franchise (RA 7903), the ZAMBOECOZONE is not authorized to enter into any gaming activity by itself unless expressly authorized by law or other laws specifically allowing the same. (Emphasis and underscoring supplied)

The Court finds that, indeed, R.A. No. 7903 does not authorize the ZAMBOECOZONE Authority to operate and/or license games of chance/gambling. Section 7(f) of R.A. No. 7903 authorizes the ZAMBOECOZONE Authority "[t]o operate on its own, either directly or through a subsidiary entity, or license to others, tourism-related activities, including games, amusements and recreational and sports facilities." It is a well-settled rule in statutory construction that where the words of a statute are clear, plain, and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation.4 The plain meaning rule or verba legis, derived from the maxim index animi sermo est (speech is the index of intention), rests on the valid presumption that the words employed by the legislature in a statute correctly express its intention or will, and preclude the court from construing it differently. For the legislature is presumed to know the meaning of the words, to have used them advisedly, and to have expressed the intent by use of such words as are found in the statute. Verba legis non est recedendum. From the words of a statute there should be no departure. 5 The words "game" and "amusement" have definite and unambiguous meanings in law which are clearly different from "game of chance" or "gambling." In its ordinary sense, a "game" is a sport, pastime, or contest; while an "amusement" is a pleasurable occupation of the senses, diversion, or enjoyment.6 On the other hand, a "game of chance" is "a game in which chance rather than skill determines the outcome," while "gambling" is defined as

"making a bet" or "a play for value against an uncertain event in hope of gaining something of value." 7 A comparison of the phraseology of Section 7(f) of R.A. No. 7903 with similar provisions in the three cited statutes creating ECOZONES shows that while the three statutes, particularly R.A. No. 7922 which authorized the Cagayan Economic Zone Authority to directly or indirectly operate gambling and casinos within its jurisdiction, categorically stated that such power was being vested in their respective administrative bodies, R.A. No. 7903 did not. The spirit and reason of the statute may be passed upon where a literal meaning would lead to absurdity, contradiction, injustice, or defeat the clear purpose of the lawmakers.8 Not any of these instances is present in the case at bar, however. Using the literal meanings of "games" and "amusement" to exclude "games of chance" and "gambling" does not lead to absurdity, contradiction, or injustice. Neither does it defeat the intent of the legislators. The lawmakers could have easily employed the words "games of chance" and "gambling" or even "casinos" if they had intended to grant the power to operate the same to the ZAMBOECOZONE Authority, as what was done in R.A. No. 7922 enacted a day after R.A. No. 7903. But they did not. The Court takes note of the above-mentioned Opinion of the Office of the President which, after differentiating the grant of powers between the Cagayan Special Economic Zone and the ZAMBOECOZONE Authority, states that while the former is authorized to, among other things, operate gambling casinos and internet gaming, as well as enter into licensing agreements, the latter is not. The relevant portions of said Opinion read:

The difference in the language and grant of powers to CEZA and ZAMBOECOZONE is telling. To the former, the grant of powers is not only explicit, but amplified, while to the latter the grant of power is merely what the law (RA 7903) states. Not only are the differences in language telling, it will be noted that both charters of CEZA and ZAMBOECOZONE were signed into law only one (1) day apart from each other, i.e., February 23, 1995 in the case of ZAMBOECOZONE and February 24, 1995 in the case of CEZA. x x x Accordingly, both laws have to be taken in the light of what Congress intended them to be, and the distinction that the lawmakers made when they enacted the two laws. Coming to the issue at hand, the ZAMBOECOZONE Charter simply allows the operation of tourism-related activities including games and amusements without stating any form of gambling activity in its grant of authority to ZAMBOECOZONE. On the other hand, the grant to CEZA included such activities as horse-racing, dog-racing and gambling casinos. xxxx In view of the foregoing, we are of the opinion that under its legislative franchise (RA 7903), the ZAMBOECOZONE is not authorized to enter into any gaming activity by itself unless expressly authorized by law or other laws specifically allowing the same. (Emphasis supplied) Both PAGCOR and the Ecozones being under the supervision of the Office of the President, the latters interpretation of R.A. No. 7903 is persuasive and deserves respect under the doctrine of respect for administrative or practical construction. In applying said doctrine, courts often

refer to several factors which may be regarded as bases thereof factors leading the courts to give the principle controlling weight in particular instances, or as independent rules in themselves. These factors include the respect due the governmental agencies charged with administration, their competence, expertness, experience, and informed judgment and the fact that they frequently are the drafters of the law they interpret; that the agency is the one on which the legislature must rely to advise it as to the practical working out of the statute, and practical application of the statute presents the agency with unique opportunity and experiences for discovering deficiencies, inaccuracies, or improvements in the statute.8 In fine, Section 7(f) did not grant to the ZAMBOECOZONE Authority the power to operate and/or license games of chance/gambling. WHEREFORE, the petition is GRANTED. Public respondent Zamboanga Economic Zone Authority is DIRECTED to CEASE and DESIST from exercising jurisdiction to operate, license, or otherwise authorize and regulate the operation of any games of chance. And private respondent Philippine Gaming Jurisdiction, Incorporated is DIRECTED to CEASE and DESIST from operating any games of chance pursuant to the license granted to it by public respondent. SO ORDERED. CONCHITA CARPIO MORALES Associate Justice Acting Chairperson

WE CONCUR: DANTE O. TINGA Associate Justice TERESITA J. LEONARDO DE CASTRO* Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice ARTURO D. BRION Associate Justice

ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. CONCHITA CARPIO MORALES Associate Justice Acting Chairperson CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Chief Justice

Footnotes
*

Additional member in lieu of Justice Leonardo A. Quisumbing who is on official leave.

1

Rollo, pp. 75-85. Id. at 99-109. Annex "A" of Reply, id. at 111-113.

Vide National Food Authority (NFA) v. Masada Security Agency, Inc., G.R. No. 163448, March 8, 2005, 453 SCRA 70, 79; Philippine National Bank v. Garcia, Jr., G.R. No. 141246, September 9, 2002, 388 SCRA 485, 487, 491.
5

Id.

Blacks Law Dictionary, Sixth Edition, West Publishing Co., St. Paul, Minnesota, U.S.A., 1990, pp. 679 and 84.
7

Id. at 679.

Asturias v. Commissioner of Customs, G.R. No. L19337, September 30, 1969, 29 SCRA 617, 623.

EN BANC REVIEW ASSOCIATION PHILIPPINES, CENTER OF THE Petitioner, PUNO, C.J., QUISUMBING, - versus YNARESSANTIAGO, CARPIO, EXECUTIVE SECRETARY AUSTRIAEDUARDO ERMITA and MARTINEZ, COMMISSION ON HIGHER CORONA, EDUCATION represented by its CARPIO Chairman ROMULO L. NERI, Respondents. MORALES, TINGA, CHICO-NAZARIO, CPA REVIEW SCHOOL OF THE VELASCO, JR., PHILIPPINES, INC. (CPAR), NACHURA, PROFESSIONAL REVIEW AND LEONARDO-DE TRAINING CENTER, INC. CASTRO, (PRTC), ReSA REVIEW SCHOOL, BRION, and INC. PERALTA, JJ. (ReSA), CRC-ACE REVIEW SCHOOL, INC. (CRC-ACE), Petitioners-Intervenors. PIMSAT COLLEGES, Respondent-Intervenor. Promulgated: April 2, 2009 G.R. No. 180046 Present:

x-------------------------------------------------x DECISION CARPIO, J.: The Case Before the Court is a petition for prohibition and mandamus assailing Executive Order No. 566 (EO 566) [1] and Commission on Higher Education (CHED) Memorandum Order No. 30, series of 2007 (RIRR).[2] The Antecedent Facts On 11 and 12 June 2006, the Professional Regulation Commission (PRC) conducted the Nursing Board Examinations nationwide. In June 2006, licensure applicants wrote the PRC to report that handwritten copies of two sets of examinations were circulated during the examination period among the examinees reviewing at the R.A. Gapuz Review Center and Inress Review Center. George Cordero, Inress Review Centers President, was then the incumbent President of the Philippine Nurses Association. The examinees were provided with a list of 500 questions and answers in two of the examinations five subjects, particularly Tests III (Psychiatric Nursing) and V (MedicalSurgical Nursing). The PRC later admitted the leakage and traced it to two Board of Nursing members. [3] On 19 June 2006, the PRC released the results of the Nursing Board Examinations. On 18 August 2006, the Court of Appeals restrained the PRC from proceeding with the oath-taking of the successful examinees set on 22 August 2006. Consequently, President Gloria Macapagal-Arroyo (President Arroyo) replaced all the members of the PRCs Board

of Nursing. President Arroyo also ordered the examinees to retake the Nursing Board Examinations. On 8 September 2006, President Arroyo issued EO 566 which authorized the CHED to supervise the establishment and operation of all review centers and similar entities in the Philippines. On 3 November 2006, the CHED, through its then Chairman Carlito S. Puno (Chairman Puno), approved CHED Memorandum Order No. 49, series of 2006 (IRR). [4] In a letter dated 24 November 2006,[5] the Review Center Association of the Philippines (petitioner), an organization of independent review centers, asked the CHED to amend, if not withdraw the IRR arguing, among other things, that giving permits to operate a review center to Higher Education Institutions (HEIs) or consortia of HEIs and professional organizations will effectively abolish independent review centers. In a letter dated 3 January 2007,[6] Chairman Puno wrote petitioner, through its President Jose Antonio Fudolig (Fudolig), that to suspend the implementation of the IRR would be inconsistent with the mandate of EO 566. Chairman Puno wrote that the IRR was presented to the stakeholders during a consultation process prior to its finalization and publication on 13 November 2006. Chairman Puno also wrote that petitioners comments and suggestions would be considered in the event of revisions to the IRR. In view of petitioners continuing request to suspend and reevaluate the IRR, Chairman Puno, in a letter dated 9 February 2007,[7] invited petitioners representatives to a dialogue on 14 March 2007. In accordance with what was agreed upon during the dialogue, petitioner submitted to the CHED its position paper

on the IRR. Petitioner also requested the CHED to confirm in writing Chairman Punos statements during the dialogue, particularly on lowering of the registration fee from P400,000 to P20,000 and the requirement for reviewers to have five years teaching experience instead of five years administrative experience. Petitioner likewise requested for a categorical answer to their request for the suspension of the IRR. The CHED did not reply to the letter. On 7 May 2007, the CHED approved the RIRR. On 22 August 2007, petitioner filed before the CHED a Petition to Clarify/Amend Revised Implementing Rules and Regulations[8] praying for a ruling: 1. Amending the RIRR by excluding independent review centers from the coverage of the CHED; 2. Clarifying the meaning of the requirement for existing review centers to tie-up or be integrated with HEIs, consortium or HEIs and PRCrecognized professional associations with recognized programs, or in the alternative, to convert into schools; and 3. Revising the rules to make it conform with Republic Act No. 7722 (RA 7722)[9] limiting the CHEDs coverage to public and private institutions of higher education as well as degreegranting programs in post-secondary educational institutions. On 8 October 2007, the CHED issued Resolution No. 7182007[10] referring petitioners request to exclude independent review centers from CHEDs supervision and regulation to the Office of the President as the matter requires the amendment of

EO 566. In a letter dated 17 October 2007, [11] then CHED Chairman Romulo L. Neri (Chairman Neri) wrote petitioner regarding its petition to be excluded from the coverage of the CHED in the RIRR. Chairman Neri stated: While it may be true that regulation of review centers is not one of the mandates of CHED under Republic Act 7722, however, on September 8, 2006, Her Excellency, President Gloria Macapagal-Arroyo, issued Executive Order No. 566 directing the Commission on Higher Education to regulate the establishment and operation of review centers and similar entities in the entire country. With the issuance of the aforesaid Executive Order, the CHED now is the agency that is mandated to regulate the establishment and operation of all review centers as provided for under Section 4 of the Executive Order which provides that No review center or similar entities shall be established and/or operate review classes without the favorable expressed indorsement of the CHED and without the issuance of the necessary permits or authorizations to conduct review classes. x x x To exclude the operation of independent review centers from the coverage of CHED would clearly contradict the intention of the said Executive Order No. 566. Considering that the requests requires the amendment of Executive Order No. 566, the Commission, during its 305th Commission

Meeting, resolved that the said request be directly referred to the Office of the President for appropriate action. As to the request to clarify what is meant by tie-up/be integrated with an HEI, as required under the Revised Implementing Rules and Regulations, tie-up/be integrated simply means, to be in partner with an HEI. [12] (Boldfacing and underscoring in the original) On 26 October 2007, petitioner filed a petition for Prohibition and Mandamus before this Court praying for the annulment of the RIRR, the declaration of EO 566 as invalid and unconstitutional, and the prohibition against CHED from implementing the RIRR. Dr. Freddie T. Bernal, Director III, Officer-In-Charge, Office of the Director IV of CHED, sent a letter [13] to the President of Northcap Review Center, Inc., a member of petitioner, that it had until 27 November 2007 to comply with the RIRR. On 15 February 2008,[14] PIMSAT Colleges (respondentintervenor) filed a Motion For Leave to Intervene and To Admit Comment-in-Intervention and a Comment-in-Intervention praying for the dismissal of the petition. Respondent-intervenor alleges that the Office of the President and the CHED did not commit any act of grave abuse of discretion in issuing EO 566 and the RIRR. Respondent-intervenor alleges that the requirements of the RIRR are reasonable, doable, and are not designed to deprive existing review centers of their review business. The Court granted the Motion for Leave to Intervene and to Admit Comment-in-Intervention in its 11 March 2008 Resolution. [15]

On 23 April 2008, a Motion for Leave of Court for Intervention In Support of the Petition and a Petition In Intervention were filed by CPA Review School of the Philippines, Inc. (CPAR), Professional Review and Training Center, Inc. (PRTC), ReSA Review School, Inc. (ReSA), CRC-ACE Review School, Inc. (CRC-ACE), all independent CPA review centers operating in Manila (collectively, petitionersintervenors). Petitioners-intervenors pray for the declaration of EO 566 and the RIRR as invalid on the ground that both constitute an unconstitutional exercise of legislative power. The Court granted the intervention in its 29 April 2008 Resolution. [16] On 21 May 2008, the CHED issued CHED Memorandum Order No. 21, Series of 2008 (CMO 21, s. 2008) [17] extending the deadline for six months from 27 May 2008 for all existing independent review centers to tie-up or be integrated with HEIs in accordance with the RIRR. In its 25 November 2008 Resolution, this Court resolved to require the parties to observe the status quo prevailing before the issuance of EO 566, the RIRR, and CMO 21, s. 2008. The Assailed Executive Order and the RIRR Executive Order No. 566 states in full: EXECUTIVE ORDER NO. 566 DIRECTING THE COMMISSION ON HIGHER EDUCATION TO REGULATE THE ESTABLISHMENT AND OPERATION OF REVIEW CENTERS AND SIMILAR ENTITIES

WHEREAS, the State is mandated to protect the right of all citizens to quality education at all levels and shall take appropriate steps to make education accessible to all, pursuant to Section 1, Article XIV of the 1987 Constitution; WHEREAS, the State has the obligation to ensure and promote quality education through the proper supervision and regulation of the licensure examinations given through the various Boards of Examiners under the Professional Regulation Commission; WHEREAS, the lack of regulatory framework for the establishment and operation of review centers and similar entities, as shown in recent events, have adverse consequences and affect public interest and welfare; WHEREAS, the overriding necessity to protect the public against substandard review centers and unethical practices committed by some review centers demand that a regulatory framework for the establishment and operation of review centers and similar entities be immediately instituted; WHEREAS, Republic Act No. 7722, otherwise known as the Higher Education Act of 1994, created the Commission on Higher Education, which is best equipped to carry out the provisions pertaining to the regulation of the establishment and operation of review centers and similar entities.

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, the President of the Republic of the Philippines, by virtue of the powers vested in me by law, do hereby order: SECTION 1. Establishment of a System of Regulation for Review Centers and Similar Entities. The Commission on Higher Education (CHED), in consultation with other concerned government agencies, is hereby directed to formulate a framework for the regulation of review centers and similar entities, including but not limited to the development and institutionalization of policies, standards, guidelines for the establishment, operation and accreditation of review centers and similar entities; maintenance of a mechanism to monitor the adequacy, transparency and propriety of their operations; and reporting mechanisms to review performance and ethical practice. SEC. 2. Coordination and Support. The Professional Regulation Commission (PRC), Technical Skills Development Authority (TESDA), Securities and Exchange Commission (SEC), the various Boards of Examiners under the PRC, as well as other concerned non-government organizations life professional societies, and various government agencies, such as the Department of Justice (DOJ), National Bureau of Investigation (NBI), Office of the Solicitor General (OSG), and others that may be tapped later, shall provide the necessary assistance and technical support to the CHED in the successful

operationalization of the System of Regulation envisioned by this Executive Order. SEC. 3. Permanent Office and Staff. To ensure the effective implementation of the System of Regulation, the CHED shall organize a permanent office under its supervision to be headed by an official with the rank of Director and to be composed of highly competent individuals with expertise in educational assessment, evaluation and testing; policies and standards development, monitoring, legal and enforcement; and statistics as well as curriculum and instructional materials development. The CHED shall submit the staffing pattern and budgetary requirements to the Department of Budget and Management (DBM) for approval. SEC. 4. Indorsement Requirement. No review center or similar entities shall be established and/or operate review classes without the favorable expressed indorsement of the CHED and without the issuance of the necessary permits or authorizations to conduct review classes. After due consultation with the stakeholders, the concerned review centers and similar entities shall be given a reasonable period, at the discretion of the CHED, to comply with the policies and standards, within a period not exceeding three (3) years, after due publication of this Executive Order. The CHED shall see to it that the System of Regulation including the implementing mechanisms, policies, guidelines and other necessary procedures and documentation for the effective implementation of the System, are

completed within sixty days (60) upon effectivity of this Executive Order. SEC. 5. Funding. The initial amount necessary for the development and implementation of the System of Regulation shall be sourced from the CHED Higher Education Development Fund (HEDF), subject to the usual government accounting and auditing practices, or from any applicable funding source identified by the DBM. For the succeeding fiscal year, such amounts as may be necessary for the budgetary requirement of implementing the System of Regulation and the provisions of this Executive Order shall be provided for in the annual General Appropriations Act in the budget of the CHED. Whenever necessary, the CHED may tap its Development Funds as supplemental source of funding for the effective implementation of the regulatory system. In this connection, the CHED is hereby authorized to create special accounts in the HEDF exclusively for the purpose of implementing the provisions of this Executive Order. SEC. 6. Review and Reporting. The CHED shall provide for the periodic review performance of review centers and similar entities and shall make a report to the Office of the President of the results of such review, evaluation and monitoring. SEC. 7. Separability. Any portion or provision of this Executive Order that may be

declared unconstitutional shall not have the effect of nullifying other provisions hereof, as long as such remaining provisions can still subsist and be given effect in their entirely. SEC. 8. Repeal. All rules and regulations, other issuances or parts thereof, which are inconsistent with this Executive Order, are hereby repealed or modified accordingly. SEC. 9. Effectivity. This Executive Order shall take effect immediately upon its publication in a national newspaper of general circulation. DONE in the City of Manila, this 8 th day of September, in the year of Our Lord, Two Thousand and Six. (Sgd.) Macapagal-Arroyo By the President: (Sgd.) Eduardo R. Ermita Executive Secretary The pertinent provisions of the RIRR affecting independent review centers are as follows: Rule VII IMPLEMENTING GUIDELINES AND PROCEDURES Gloria

Section 1. Authority to Establish and Operate Only CHED recognized, accredited and reputable HEIs may be authorized to establish and operate review center/course by the CHED upon full compliance with the conditions and requirements provided herein and in other pertinent laws, rules and regulations. In addition, a consortium or consortia of qualified schools and/or entities may establish and operate review centers or conduct review classes upon compliance with the provisions of these Rules.

with these conditions or non-compliance with the requirements set forth in these rules. Section 2. Only after full compliance with the requirements shall a Permit be given by the CHED to review centers contemplated under this Rule. Section 3. Failure of existing review centers to fully comply with the above shall bar them from existing as review centers and they shall be deemed as operating illegally as such. In addition, appropriate administrative and legal proceedings shall be commence[d] against the erring entities that continue to operate and appropriate sanctions shall be imposed after due process. The Issues

Rule XIV TRANSITORY PROVISIONS Section 1. Review centers that are existing upon the approval of Executive Order No. 566 shall be given a grace period of up to one (1) year, to tieup/be integrated with existing HEIs[,] consortium of HEIs and PRC recognized Professional Associations with recognized programs under the conditions set forth in this Order and upon mutually acceptable covenants by the contracting parties. In the alternative, they may convert as a school and apply for the course covered by the review subject to rules and regulations of the CHED and the SEC with respect to the establishment of schools. In the meantime, no permit shall be issued if there is non-compliance

The issues raised in this case are the following: 1. Whether EO 566 is an unconstitutional exercise by the Executive of legislative power as it expands the CHEDs jurisdiction; and 2. Whether the RIRR is an invalid exercise of the Executives rule-making power. The Ruling of this Court The petition has merit. Violation of Judicial Hierarchy

The Office of the Solicitor General (OSG) prays for the dismissal of the petition. Among other grounds, the OSG alleges that petitioner violated the rule on judicial hierarchy in filing the petition directly with this Court. This Courts original jurisdiction to issue a writ of certiorari, prohibition, mandamus, quo warranto, habeas corpus, and injunction is not exclusive but is concurrent with the Regional Trial Courts and the Court of Appeals in certain cases. [18] The Court has explained: This concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of the court to which application therefor will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the venue of appeals, and also serves as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard of that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level (inferior) courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Courts original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is [an] established policy. It is a policy necessary to prevent inordinate demands upon the Courts time and attention which are better devoted to those matters

within its exclusive jurisdiction, and to prevent further over-crowding of the Courts docket. [19] The Court has further explained: The propensity of litigants and lawyers to disregard the hierarchy of courts in our judicial system by seeking relief directly from this Court must be put to a halt for two reasons: (1) it would be an imposition upon the precious time of this Court; and (2) it would cause an inevitable and resultant delay, intended or otherwise, in the adjudication of cases, which in some instances had to be remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to resolve the issues because this Court is not a trier of facts. [20] The rule, however, is not absolute, as when exceptional and compelling circumstances justify the exercise of this Court of its primary jurisdiction. In this case, petitioner alleges that EO 566 expands the coverage of RA 7722 and in doing so, the Executive Department usurps the legislative powers of Congress. The issue in this case is not only the validity of the RIRR. Otherwise, the proper remedy of petitioner and petitioners-intervenors would have been an ordinary action for the nullification of the RIRR before the Regional Trial Court. [21] The alleged violation of the Constitution by the Executive Department when it issued EO 566 justifies the exercise by the Court of its primary jurisdiction over the case. The Court is not precluded from brushing aside technicalities and taking cognizance of an action due to its importance to the public and in keeping with its duty to determine whether the other branches of the Government have kept themselves within the limits of the Constitution. [22]

OSGs Technical Objections The OSG alleges that the petition should be dismissed because the verification and certification of non-forum shopping were signed only by Fudolig without the express authority of any board resolution or power of attorney. However, the records show that Fudolig was authorized under Board Resolution No. 3, series of 2007[23] to file a petition before this Court on behalf of petitioner and to execute any and all documents necessary to implement the resolution. The OSG also alleges that the petition should be dismissed for violation of the 2004 Rules on Notarial Practice because Fudolig only presented his community tax certificate as competent proof of identity before the notary public. The Court would have required Fudolig to comply with the 2004 Rules on Notarial Practice except that Fudolig already presented his Philippine passport before the notary public when petitioner submitted its reply to the OSGs comment. EO 566 Expands the Coverage of RA 7722 The OSG alleges that Section 3 of RA 7722 should be read in conjunction with Section 8, enumerating the CHEDs powers and functions. In particular, the OSG alleges that the CHED has the power under paragraphs (e) and (n) of Section 8 to: (e) monitor and evaluate the performance of programs and institutions of higher learning for appropriate incentives as well as the imposition of sanctions such as, but not limited to, diminution or withdrawal of subsidy, recommendation on the downgrading or withdrawal of accreditation, program termination or school closure;

(n) promulgate such rules and regulations and exercise such other powers and functions as may be necessary to carry out effectively the purpose and objectives of this Act[.] The OSG justifies its stand by claiming that the term programs x x x of higher learning is broad enough to include programs offered by review centers. We do not agree.

Section 3 of RA 7722 provides: Sec. 3. Creation of Commission on Higher Education. - In pursuance of the abovementioned policies, the Commission on Higher Education is hereby created, hereinafter referred to as the Commission. The Commission shall be independent and separate from the Department of Education, Culture and Sports (DECS), and attached to the Office of the President for administrative purposes only. Its coverage shall be both public and private institutions of higher education as well as degree-granting programs in all postsecondary educational institutions, public and private. (Emphasis supplied)

Neither RA 7722 nor CHED Order No. 3, series of 1994 (Implementing Rules of RA 7722) [24] defines an institution of higher learning or a program of higher learning. Higher education, however, is defined as education beyond the secondary level[25] or education provided by a college or university.[26] Under the plain meaning or verba legis rule in statutory construction, if the statute is clear, plain, and free from ambiguity, it must be given its literal meaning and applied without interpretation.[27] The legislature is presumed to know the meaning of the words, to have used words advisedly, and to have expressed its intent by use of such words as are found in the statute.[28] Hence, the term higher education should be taken in its ordinary sense and should be read and interpreted together with the phrase degree-granting programs in all postsecondary educational institutions, public and private. Higher education should be taken to mean tertiary education or that which grants a degree after its completion. Further, Articles 6 and 7 of the Implementing Rules provide: Article 6. Scope of Application. - The coverage of the Commission shall be both public and private institutions of higher education as well as degree granting programs in all postsecondary educational institutions, public and private. These Rules shall apply to all public and private educational institutions offering tertiary degree programs.

The establishment, conversion, or elevation of degree-granting institutions shall be within the responsibility of the Commission. Article 7. Jurisdiction. - Jurisdiction over institutions of higher learning primarily offering tertiary degree programs shall belong to the Commission. (Emphasis supplied) Clearly, HEIs refer to degree-granting institutions, or those offering tertiary degree or post-secondary programs. In fact, Republic Act No. 8292 or the Higher Education Modernization Act of 1997 covers chartered state universities and colleges. State universities and colleges primarily offer degree courses and programs. Sections 1 and 8, Rule IV of the RIRR define a review center and similar entities as follows: Section 1. REVIEW CENTER. - refers to a center operated and owned by a duly authorized entity pursuant to these Rules intending to offer to the public and/or to specialized groups whether for a fee or for free a program or course of study that is intended to refresh and enhance the knowledge and competencies and skills of reviewees obtained in the formal school setting in preparation for the licensure examinations given by the Professional Regulations Commission (PRC). The term review center as understood in these rules shall also embrace the operation or conduct of review classes or courses provided by individuals whether for a fee or not in preparation

for the licensure examinations given by the Professional Regulations Commission. xxx

directed the CHED to formulate a framework for the regulation of review centers and similar entities. The definition of a review center under EO 566 shows that it refers to one which offers a program or course of study that is intended to refresh and enhance the knowledge or competencies and skills of reviewees obtained in the formal school setting in preparation for the licensure examinations given by the PRC. It also covers the operation or conduct of review classes or courses provided by individuals whether for a fee or not in preparation for the licensure examinations given by the PRC. A review center is not an institution of higher learning as contemplated by RA 7722. It does not offer a degree-granting program that would put it under the jurisdiction of the CHED. A review course is only intended to refresh and enhance the knowledge or competencies and skills of reviewees. A reviewee is not even required to enroll in a review center or to take a review course prior to taking an examination given by the PRC. Even if a reviewee enrolls in a review center, attendance in a review course is not mandatory. The reviewee is not required to attend each review class. He is not required to take or pass an examination, and neither is he given a grade. He is also not required to submit any thesis or dissertation. Thus, programs given by review centers could not be considered programs x x x of higher learning that would put them under the jurisdiction of the CHED. Further, the similar entities in EO 566 cover centers providing review or tutorial services in areas not covered by licensure examinations given by the PRC, which include, although not limited to, college entrance examinations, Civil Services examinations, and tutorial services. These review and tutorial services hardly qualify as programs of higher learning.

Section 8. SIMILAR ENTITIES the term refer to other review centers providing review or tutorial services in areas not covered by licensure examinations given by the Professional Regulations Commission including but not limited to college entrance examinations, Civil Service examinations, tutorial services in specific fields like English, Mathematics and the like. The same Rule defines a review course as follows: Section 3. REVIEW COURSE refers to the set of non-degree instructional program of study and/or instructional materials/module, offered by a school with a recognized course/program requiring licensure examination, that are intended merely to refresh and enhance the knowledge or competencies and skills of reviewees. The scopes of EO 566 and the RIRR clearly expand the CHEDs coverage under RA 7722. The CHEDs coverage under RA 7722 is limited to public and private institutions of higher education and degree-granting programs in all public and private post-secondary educational institutions . EO 566

[32]

Usurpation of Legislative Power The OSG argues that President Arroyo was merely exercising her executive power to ensure that the laws are faithfully executed. The OSG further argues that President Arroyo was exercising her residual powers under Executive Order No. 292 (EO 292),[29] particularly Section 20, Title I of Book III, thus: Section 20. Residual Powers. - Unless Congress provides otherwise, the President shall exercise such other powers and functions vested in the President which are provided for under the laws and which are not specifically enumerated above, or which are not delegated by the President in accordance with law. (Emphasis supplied)

and this power is vested with the Congress under Section 1, Article VI of the 1987 Constitution which states: Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum. In Ople v. Torres,[33] the Court declared void, as a usurpation of legislative power, Administrative Order No. 308 (AO 308) issued by the President to create a national identification system. AO 308 mandates the adoption of a national identification system even in the absence of an enabling legislation. The Court distinguished between Legislative and Executive powers, as follows: The line that delineates Legislative and Executive power is not indistinct. Legislative power is the authority, under the Constitution, to make laws, and to alter and repeal them. The Constitution, as the will of the people in their original, sovereign and unlimited capacity, has vested this power in the Congress of the Philippines. The grant of legislative power to Congress is broad, general and comprehensive. The legislative body possesses plenary power for all purposes of civil government. Any power, deemed to be legislative by usage and tradition, is necessarily possessed by Congress, unless the Constitution has lodged it elsewhere. In fine, except as limited by the Constitution, either expressly or impliedly,

Section 20, Title I of Book III of EO 292 speaks of other powers vested in the President under the law. [30] The exercise of the Presidents residual powers under this provision requires legislation,[31] as the provision clearly states that the exercise of the Presidents other powers and functions has to be provided for under the law. There is no law granting the President the power to amend the functions of the CHED. The President may not amend RA 7722 through an Executive Order without a prior legislation granting her such power. The President has no inherent or delegated legislative power to amend the functions of the CHED under RA 7722. Legislative power is the authority to make laws and to alter or repeal them,

legislative power embraces all subjects and extends to matters of general concern or common interest. While Congress is vested with the power to enact laws, the President executes the laws. The executive power is vested in the President. It is generally defined as the power to enforce and administer laws. It is the power of carrying the laws into practical operation and enforcing their due observance. As head of the Executive Department, the President is the Chief Executive. He represents the government as a whole and sees to it that all laws are enforced by the officials and employees of his department. He has control over the executive department, bureaus and offices. This means that he has the authority to assume directly the functions of the executive department, bureau and office, or interfere with the discretion of its officials. Corollary to the power of control, the President also has the duty of supervising the enforcement of laws for the maintenance of general peace and public order. Thus, he is granted administrative power over bureaus and offices under his control to enable him to discharge his duties effectively. Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs. It enables the President to fix a uniform standard of administrative efficiency and check the official

conduct of his agents. To this end, he can issue administrative orders, rules and regulations. x x x. An administrative order is: Sec. 3. Administrative Orders. Acts of the President which relate to particular aspects of governmental operation in pursuance of his duties as administrative head shall be promulgated in administrative orders. An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of government. It must be in harmony with the law and should be for the sole purpose of implementing the law and carrying out the legislative policy. x x x.[34] Just like AO 308 in Ople v. Torres, EO 566 in this case is not supported by any enabling law. The Court further stated in Ople: x x x. As well stated by Fisher: x x x Many regulations however, bear directly on the public. It is here that administrative legislation must be restricted in its scope and application. Regulations are not supposed to be a substitute for the general policy-making that Congress enacts in the form of a public law. Although administrative regulations are entitled to respect, the authority to prescribe rules and regulations is not an independent source of power to make laws.[35]

Since EO 566 is an invalid exercise of legislative power, the RIRR is also an invalid exercise of the CHEDs quasi-legislative power. Administrative agencies exercise their quasi-legislative or rule-making power through the promulgation of rules and regulations.[36] The CHED may only exercise its rule-making power within the confines of its jurisdiction under RA 7722. The RIRR covers review centers and similar entities which are neither institutions of higher education nor institutions offering degreegranting programs. Exercise of Police Power Police power to prescribe regulations to promote the health, morals, education, good order or safety, and the general welfare of the people flows from the recognition that salus populi est suprema lex the welfare of the people is the supreme law. [37] Police power primarily rests with the legislature although it may be exercised by the President and administrative boards by virtue of a valid delegation.[38] Here, no delegation of police power exists under RA 7722 authorizing the President to regulate the operations of non-degree granting review centers. Republic Act No. 8981 is Not the Appropriate Law It is argued that the President of the Philippines has adequate powers under the law to regulate review centers and this could have been done under an existing validly delegated authority, and that the appropriate law is Republic Act No. 8981[39] (RA 8981). Under Section 5 of RA 8981, the PRC is mandated to establish and maintain a high standard of admission

to the practice of all professions and at all times ensure and safeguard the integrity of all licensure examinations. Section 7 of RA 8981 further states that the PRC shall adopt measures to preserve the integrity and inviolability of licensure examinations. There is no doubt that a principal mandate of the PRC is to preserve the integrity of licensure examinations. The PRC has the power to adopt measures to preserve the integrity and inviolability of licensure examinations. However, this power should properly be interpreted to refer to the conduct of the examinations. The enumeration of PRCs powers under Section 7(e) includes among others, the fixing of dates and places of the examinations and the appointment of supervisors and watchers. The power to preserve the integrity and inviolability of licensure examinations should be read together with these functions. These powers of the PRC have nothing to do at all with the regulation of review centers . The PRC has the power to investigate any of the members of the Professional Regulatory Boards (PRB) for commission of any irregularities in the licensure examinations which taint or impugn the integrity and authenticity of the results of the said examinations.[40] This is an administrative power which the PRC exercises over members of the PRB. However, this power has nothing to do with the regulation of review centers. The PRC has the power to bar PRB members from conducting review classes in review centers. However, to interpret this power to extend to the power to regulate review centers is clearly an unwarranted interpretation of RA 8981 . The PRC may prohibit the members of the PRB from conducting review classes at review centers because the PRC has administrative supervision over the members of the PRB. However, such power does not extend to the regulation of review centers. Section 7(y) of RA 8981 giving the PRC the power to perform such other functions and duties as may be necessary to

carry out the provisions of RA 8981 does not extend to the regulation of review centers. There is absolutely nothing in RA 8981 that mentions regulation by the PRC of review centers . The Court cannot likewise interpret the fact that RA 8981 penalizes any person who manipulates or rigs licensure examination results, secretly informs or makes known licensure examination questions prior to the conduct of the examination or tampers with the grades in the professional licensure examinations[41] as a grant of power to regulate review centers. The provision simply provides for the penalties for manipulation and other corrupt practices in the conduct of the professional examinations.

SO ORDERED.

ANTONIO T. CARPIO Associate Justice WE CONCUR:

The assailed EO 566 seeks to regulate not only review centers but also similar entities. The questioned CHED RIRR defines similar entities as referring to other review centers providing review or tutorial services in areas not covered by licensure examinations given by the PRC including but not limited to college entrance examinations, Civil Service examinations, tutorial services in specific fields like English, LEONARDO A. QUISUMBING CONSUELO YNARESMathematics and the like.[42] The PRC has no mandate to Associate Justice SANTIAGO supervise review centers that give courses or lectures intended to Associate Justice prepare examinees for licensure examinations given by the PRC. It is like the Court regulating bar review centers just because the Court conducts the bar examinations. Similarly, the PRC has no mandate to regulate similar entities whose reviewees will not even take any licensure examination given by the PRC. MA. ALICIA AUSTRIARENATO C. CORONA MARTINEZ Associate Justice WHEREFORE, we GRANT the petition and the petitionAssociate Justice in-intervention. We DECLARE Executive Order No. 566 and Commission on Higher Education Memorandum Order No. 30, series of 2007 VOID for being unconstitutional.

REYNATO S. PUNO Chief Justice

CONCHITA CARPIO MORALES Associate Justice

DANTE O. TINGA Associate Justice

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

MINITA V. CHICONAZARIO Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

REYNATO S. PUNO Chief Justice ANTONIO EDUARDO NACHURA Associate Justice B. TERESITA J. LEONARDO-DE CASTRO Associate Justice

ARTURO D. BRION Associate Justice

DIOSDADO M. PERALTA Associate Justice

Pascual vs. Pascual [G.R. No. 84240. March 25, 1992]

15AUG
Ponente: PARAS, J. FACTS: Don Andres Pascual died intestate (on October 12, 1973) without any issue, legitimate, acknowledged natural, adopted or spurious children. Petitioners Olivia and Hermes both surnamed Pascual are the acknowledged natural children of the late Eligio Pascual, the latter being the full blood brother of the decedent Don Andres Pascual. Petitioners filed their Motion to Reiterate Hereditary Rights and the Memorandum in Support of Motion to reiterate Hereditary Rights. the Regional Trial Court, presided over by Judge Manuel S. Padolina issued an order, the dispositive portion of which resolved to deny this motion reiterating their hereditary rights. Their motion for reconsideration was also denied. Petitioners appealed their case to the Court of Appeals,

but like the ruling of CA, their motion for reconsideration was also dismissed. In this petition for review on certiorari, petitioners contend that they do not fall squarely within the purview of Article 992 of the Civil Code of the Philippines, can be interpreted to exclude recognized (and acknowledged) natural children as their illegitimacy is not due to the subsistence of a prior marriage when such children were under conception. ISSUE: Whether or not Article 992 of the Civil Code of the Philippines, can be interpreted to exclude recognized natural children from the inheritance of the deceased. HELD: NO. Petition is devoid of merit. RATIO: The issue in the case at bar, had already been laid to rest in Diaz v. IAC, where this Court ruled that under Art.992 of the Civil Code, there exists a barrier or iron curtain in that it prohibits absolutely a succession ab intestado between the illegitimate child and the legitimate children and relatives of the father or mother of said legitimate child.

[T]he interpretation of the law desired by the petitioner may be more humane but it is also an elementary rule in statutory construction that when the words and phrases of the statute are clear and unequivocal, their meaning must be determined from the language employed and the statute must be taken to mean exactly what is says. Eligio Pascual is a legitimate child but petitioners are his illegitimate children and the term illegitimate refers to both natural and spurious. It may be said that the law may be harsh but that is the law (DURA LEX SED LEX).

Angara v. Electoral Commission, G.R. No. L-45081, July 15, 1936 DECISION (En Banc) LAUREL, J.: I. THE FACTS

Did the Electoral Commission act without or in excess of its jurisdiction in taking cognizance of the protest filed against the election of the petitioner notwithstanding the previous confirmation of such election by resolution of the National Assembly? III. THE RULING [The Court DENIED the petition.] NO, the Electoral Commission did not act without or in excess of its jurisdiction in taking cognizance of the protest filed against the election of the petitioner notwithstanding the previous confirmation of such election by resolution of the National Assembly. The Electoral Commission acted within the legitimate exercise of its constitutional prerogative in assuming to take cognizance of the protest filed by the respondent Ynsua against the election of the petitioner Angara, and that the earlier resolution of the National Assembly cannot in any manner toll the time for filing election protests against members of the National Assembly, nor prevent the filing of a protest within such time as the rules of the Electoral Commission might prescribe. The grant of power to the Electoral Commission to judge all contests relating to the election, returns and qualifications of members of the National Assembly, is intended to be as complete and unimpaired as if it had remained originally in the legislature. The express lodging of that power in the Electoral Commission is an implied denial of the exercise of that power by the National Assembly. xxx.

Petitioner Jose Angara was proclaimed winner and took his oath of office as member of the National Assembly of the Commonwealth Government. On December 3, 1935, the National Assembly passed a resolution confirming the election of those who have not been subject of an election protest prior to the adoption of the said resolution. On December 8, 1935, however, private respondent Pedro Ynsua filed an election protest against the petitioner before the Electoral Commission of the National Assembly. The following day, December 9, 1935, the Electoral Commission adopted its own resolution providing that it will not consider any election protest that was not submitted on or before December 9, 1935. Citing among others the earlier resolution of the National Assembly, the petitioner sought the dismissal of respondents protest. The Electoral Commission however denied his motion. II. THE ISSUE

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

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-49112 February 2, 1979 LEOVILLO C. AGUSTIN, petitioner, vs. HON. ROMEO F. EDU, in his capacity as Land Transportation Commissioner; HON. JUAN PONCE ENRILE, in his capacity as Minister of National Defense; HON. ALFREDO L. JUINIO, in his capacity as Minister Of Public Works, Transportation and Communications; and HON: BALTAZAR AQUINO, in his capacity as Minister of Public Highways, respondents. Leovillo C. Agustin Law Office for petitioner. Solicitor General Estelito P. Mendoza, Assistant Solicitor General Ruben E. Agpalo and Solicitor Amado D. Aquino for respondents.

rules and regulations for its implementation are concerned, for transgressing the fundamental principle of nondelegation of legislative power. The Letter of Instruction is stigmatized by petitioner who is possessed of the requisite standing, as being arbitrary and oppressive. A temporary restraining order as issued and respondents Romeo F. Edu, Land Transportation Commissioner Juan Ponce Enrile, Minister of National Defense; Alfredo L. Juinio, Minister of Public Works, Transportation and Communications; and Baltazar Aquino, Minister of Public Highways; were to answer. That they did in a pleading submitted by Solicitor General Estelito P. Mendoza. 2Impressed with a highly persuasive quality, it makes devoid clear that the imputation of a constitutional infirmity is devoid of justification The Letter of Instruction on is a valid police power measure. Nor could the implementing rules and regulations issued by respondent Edu be considered as amounting to an exercise of legislative power. Accordingly, the petition must be dismissed. The facts are undisputed. The assailed Letter of Instruction No. 229 of President Marcos, issued on December 2, 1974, reads in full: "[Whereas], statistics show that one of the major causes of fatal or serious accidents in land transportation is the presence of disabled, stalled or parked motor vehicles along streets or highways without any appropriate early warning device to signal approaching motorists of their presence; [Whereas], the hazards posed by such obstructions to traffic have been recognized by international bodies concerned with traffic safety, the 1968 Vienna Convention on Road Signs and Signals and the United Nations Organization (U.N.); [Whereas], the said Vienna Convention which was ratified by the Philippine Government under P.D. No. 207, recommended the enactment of local legislation for the installation of road

FERNANDO, J.: The validity of a letter of Instruction 1 providing for an early seaming device for motor vehicles is assailed in this prohibition proceeding as being violative of the constitutional guarantee of due process and, insofar as the

safety signs and devices; [Now, therefore, I, Ferdinand E. Marcos], President of the Philippines, in the interest of safety on all streets and highways, including expressways or limited access roads, do hereby direct: 1. That all owners, users or drivers of motor vehicles shall have at all times in their motor vehicles at least one (1) pair of early warning device consisting of triangular, collapsible reflectorized plates in red and yellow colors at least 15 cms. at the base and 40 cms. at the sides. 2. Whenever any motor vehicle is stalled or disabled or is parked for thirty (30) minutes or more on any street or highway, including expressways or limited access roads, the owner, user or driver thereof shall cause the warning device mentioned herein to be installed at least four meters away to the front and rear of the motor vehicle staged, disabled or parked. 3. The Land Transportation Commissioner shall cause Reflectorized Triangular Early Warning Devices, as herein described, to be prepared and issued to registered owners of motor vehicles, except motorcycles and trailers, charging for each piece not more than 15 % of the acquisition cost. He shall also promulgate such rules and regulations as are appropriate to effectively implement this order. 4. All hereby concerned shall closely coordinate and take such measures as are necessary or appropriate to carry into effect then instruction. 3 Thereafter, on November 15, 1976, it was amended by Letter of Instruction No. 479 in this wise. "Paragraph 3 of Letter of Instruction No. 229 is hereby amended to read as follows: 3. The Land transportation Commissioner shall require every motor vehicle owner to procure from any and present at the registration of his vehicle, one pair of a reflectorized early warning device, as d bed of any brand or make chosen by mid motor vehicle . The Land Transportation Commissioner shall also promulgate such rule and regulations as are appropriate to effectively implement this order.'" 4 There was issued

accordingly, by respondent Edu, the implementing rules and regulations on December 10, 1976. 5 They were not enforced as President Marcos on January 25, 1977, ordered a six-month period of suspension insofar as the installation of early warning device as a pre-registration requirement for motor vehicle was concerned. 6 Then on June 30, 1978, another Letter of Instruction 7 the lifting of such suspension and directed the immediate implementation of Letter of Instruction No. 229 as amended. 8 It was not until August 29, 1978 that respondent Edu issued Memorandum Circular No. 32, worded thus: "In pursuance of Letter of Instruction No. 716, dated June 30, 1978, the implementation of Letter of Instruction No. 229, as amended by Letter of Instructions No. 479, requiring the use of Early Warning Devices (EWD) on motor vehicle, the following rules and regulations are hereby issued: 1. LTC Administrative Order No. 1, dated December 10, 1976; shall now be implemented provided that the device may come from whatever source and that it shall have substantially complied with the EWD specifications contained in Section 2 of said administrative order; 2. In order to insure that every motor vehicle , except motorcycles, is equipped with the device, a pair of serially numbered stickers, to be issued free of charge by this Commission, shall be attached to each EWD. The EWD. serial number shall be indicated on the registration certificate and official receipt of payment of current registration fees of the motor vehicle concerned. All Orders, Circulars, and Memoranda in conflict herewith are hereby superseded, This Order shall take effect immediately. 9 It was for immediate implementation by respondent Alfredo L. Juinio, as Minister of Public Works, transportation, and Communications.10 Petitioner, after setting forth that he "is the owner of a Volkswagen Beetle Car, Model 13035, already properly

equipped when it came out from the assembly lines with blinking lights fore and aft, which could very well serve as an early warning device in case of the emergencies mentioned in Letter of Instructions No. 229, as amended, as well as the implementing rules and regulations in Administrative Order No. 1 issued by the land transportation Commission," 11 alleged that said Letter of Instruction No. 229, as amended, "clearly violates the provisions and delegation of police power, [sic] * * *: " For him they are "oppressive, unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to the precepts of our compassionate New Society." 12 He contended that they are "infected with arbitrariness because it is harsh, cruel and unconscionable to the motoring public;" 13 are "one-sided, onerous and patently illegal and immoral because [they] will make manufacturers and dealers instant millionaires at the expense of car owners who are compelled to buy a set of the so-called early warning device at the rate of P 56.00 to P72.00 per set." 14 are unlawful and unconstitutional and contrary to the precepts of a compassionate New Society [as being] compulsory and confiscatory on the part of the motorists who could very well provide a practical alternative road safety device, or a better substitute to the specified set of EWD's." 15 He therefore prayed for a judgment both the assailed Letters of Instructions and Memorandum Circular void and unconstitutional and for a restraining order in the meanwhile. A resolution to this effect was handed down by this Court on October 19, 1978: "L-49112 (Leovillo C. Agustin v. Hon. Romeo F. Edu, etc., et al.) Considering the allegations contained, the issues raised and the arguments adduced in the petition for prohibition with writ of p prohibitory and/or mandatory injunction, the Court Resolved to (require) the respondents to file an answer thereto within ton (10) days

from notice and not to move to dismiss the petition. The Court further Resolved to [issue] a [temporary restraining order] effective as of this date and continuing until otherwise ordered by this Court. 16 Two motions for extension were filed by the Office of the Solicitor General and granted. Then on November 15, 1978, he Answer for respondents was submitted. After admitting the factual allegations and stating that they lacked knowledge or information sufficient to form a belief as to petitioner owning a Volkswagen Beetle car," they "specifically deny the allegations and stating they lacked knowledge or information sufficient to form a belief as to petitioner owning a Volkswagen Beetle Car, 17 they specifically deny the allegations in paragraphs X and XI (including its subparagraphs 1, 2, 3, 4) of Petition to the effect that Letter of Instruction No. 229 as amended by Letters of Instructions Nos. 479 and 716 as well as Land transportation Commission Administrative Order No. 1 and its Memorandum Circular No. 32 violates the constitutional provisions on due process of law, equal protection of law and undue delegation of police power, and that the same are likewise oppressive, arbitrary, confiscatory, one-sided, onerous, immoral unreasonable and illegal the truth being that said allegations are without legal and factual basis and for the reasons alleged in the Special and Affirmative Defenses of this Answer." 18 Unlike petitioner who contented himself with a rhetorical recital of his litany of grievances and merely invoked the sacramental phrases of constitutional litigation, the Answer, in demonstrating that the assailed Letter of Instruction was a valid exercise of the police power and implementing rules and regulations of respondent Edu not susceptible to the charge that there was unlawful delegation of legislative power, there was in the portion captioned Special and Affirmative Defenses, a

citation of what respondents believed to be the authoritative decisions of this Tribunal calling for application. They are Calalang v. Williams, 19 Morfe v. Mutuc, 20 and Edu v. Ericta. 21 Reference was likewise made to the 1968 Vienna Conventions of the United Nations on road traffic, road signs, and signals, of which the Philippines was a signatory and which was duly ratified. 22 Solicitor General Mendoza took pains to refute in detail, in language calm and dispassionate, the vigorous, at times intemperate, accusation of petitioner that the assailed Letter of Instruction and the implementing rules and regulations cannot survive the test of rigorous scrutiny. To repeat, its highly-persuasive quality cannot be denied. This Court thus considered the petition submitted for decision, the issues being clearly joined. As noted at the outset, it is far from meritorious and must be dismissed. 1. The Letter of Instruction in question was issued in the exercise of the police power. That is conceded by petitioner and is the main reliance of respondents. It is the submission of the former, however, that while embraced in such a category, it has offended against the due process and equal protection safeguards of the Constitution, although the latter point was mentioned only in passing. The broad and expansive scope of the police power which was originally Identified by Chief Justice Taney of the American Supreme Court in an 1847 decision as "nothing more or less than the powers of government inherent in every sovereignty" 23 was stressed in the aforementioned case of Edu v. Ericta thus: "Justice Laurel, in the first leading decision after the Constitution came into force,Calalang v. Williams, Identified police power with state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare. Persons and property could

thus 'be subjected to all kinds of restraints and burdens in order to we the general comfort, health and prosperity of the state.' Shortly after independence in 1948, Primicias v. Fugoso reiterated the doctrine, such a competence being referred to as 'the power to prescribe regulations to promote the health, morals, peace, education, good order or safety, and general welfare of the people. The concept was set forth in negative terms by Justice Malcolm in a preCommonwealth decision as 'that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety and welfare of society. In that sense it could be hardly distinguishable as noted by this Court in Morfe v. Mutuc with the totality of legislative power. It is in the above sense the greatest and most powerful at. tribute of government. It is, to quote Justice Malcolm anew, 'the most essential, insistent, and at least table powers, I extending as Justice Holmes aptly pointed out 'to all the great public needs.' Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it could be done, provides enough room for an efficient and flexible response to conditions and circumstances thus assuring the greatest benefits. In the language of Justice Cardozo: 'Needs that were narrow or parochial in the past may be interwoven in the present with the well-being of the nation. What is critical or urgent changes with the time.' The police power is thus a dynamic agency, suitably vague and far from precisely defined, rooted in the conception that men in organizing the state and imposing upon its government limitations to safeguard constitutional rights did not intend thereby to enable an individual citizen or a group of citizens to obstruct unreasonably the enactment of such salutary measures calculated to communal peace, safety, good order, and welfare." 24

2. It was thus a heavy burden to be shouldered by petitioner, compounded by the fact that the particular police power measure challenged was clearly intended to promote public safety. It would be a rare occurrence indeed for this Court to invalidate a legislative or executive act of that character. None has been called to our attention, an indication of its being non-existent. The latest decision in point, Edu v. Ericta, sustained the validity of the Reflector Law, 25 an enactment conceived with the same end in view. Calalang v. Williams found nothing objectionable in a statute, the purpose of which was: "To promote safe transit upon, and. avoid obstruction on roads and streets designated as national roads * * *. 26 As a matter of fact, the first law sought to be nullified after the effectivity of the 1935 Constitution, the National Defense Act, 27 with petitioner failing in his quest, was likewise prompted by the imperative demands of public safety. 3. The futility of petitioner's effort to nullify both the Letter of Instruction and the implementing rules and regulations becomes even more apparent considering his failure to lay the necessary factual foundation to rebut the presumption of validity. So it was held in Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila . 28 The rationale was clearly set forth in an excerpt from a decision of Justice Branders of the American Supreme Court, quoted in the opinion: "The statute here questioned deals with a subject clearly within the scope of the police power. We are asked to declare it void on the ground that the specific method of regulation prescribed is unreasonable and hence deprives the plaintiff of due process of law. As underlying questions of fact may condition the constitutionality of legislation of this character, the presumption of constitutionality must prevail in the absence of some factual foundation of record in overthrowing the statute. 29

4. Nor did the Solicitor General as he very well could, rely solely on such rebutted presumption of validity. As was pointed out in his Answer "The President certainly had in his possession the necessary statistical information and data at the time he issued said letter of instructions, and such factual foundation cannot be defeated by petitioner's naked assertion that early warning devices 'are not too vital to the prevention of nighttime vehicular accidents' because allegedly only 390 or 1.5 per cent of the supposed 26,000 motor vehicle accidents that in 1976 involved rear-end collisions (p. 12 of petition). Petitioner's statistics is not backed up by demonstrable data on record. As aptly stated by this Honorable Court: Further: "It admits of no doubt therefore that there being a presumption of validity, the necessity for evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face, which is not the case here"' * * *. But even as g the verity of petitioner's statistics, is that not reason enough to require the installation of early warning devices to prevent another 390 rear-end collisions that could mean the death of 390 or more Filipinos and the deaths that could likewise result from head-on or frontal collisions with stalled vehicles?" 30 It is quite manifest then that the issuance of such Letter of Instruction is encased in the armor of prior, careful study by the Executive Department. To set it aside for alleged repugnancy to the due process clause is to give sanction to conjectural claims that exceeded even the broadest permissible limits of a pleader's well known penchant for exaggeration. 5. The rather wild and fantastic nature of the charge of oppressiveness of this Letter of Instruction was exposed in the Answer of the Solicitor General thus: "Such early warning device requirement is not an expensive redundancy, nor oppressive, for car owners whose cars are

already equipped with 1) blinking lights in the fore and aft of said motor vehicles,' 2) "battery-powered blinking lights inside motor vehicles," 3) "built-in reflectorized tapes on front and rear bumpers of motor vehicles," or 4) "well-lighted two (2) petroleum lamps (the Kinke) * * * because: Being universal among the signatory countries to the said 1968 Vienna Conventions, and visible even under adverse conditions at a distance of at least 400 meters, any motorist from this country or from any part of the world, who sees a reflectorized rectangular early seaming device installed on the roads, highways or expressways, will conclude, without thinking, that somewhere along the travelled portion of that road, highway, or expressway, there is a motor vehicle which is stationary, stalled or disabled which obstructs or endangers passing traffic. On the other hand, a motorist who sees any of the aforementioned other built in warning devices or the petroleum lamps will not immediately get adequate advance warning because he will still think what that blinking light is all about. Is it an emergency vehicle? Is it a law enforcement car? Is it an ambulance? Such confusion or uncertainty in the mind of the motorist will thus increase, rather than decrease, the danger of collision. 31 6. Nor did the other extravagant assertions of constitutional deficiency go unrefuted in the Answer of the Solicitor General "There is nothing in the questioned Letter of Instruction No. 229, as amended, or in Administrative Order No. 1, which requires or compels motor vehicle owners to purchase the early warning device prescribed thereby. All that is required is for motor vehicle owners concerned like petitioner, to equip their motor vehicles with a pair of this early warning device in question, procuring or obtaining the same from whatever source. In fact, with a little of industry and practical ingenuity, motor vehicle owners can even personally make or produce this early warning device so

long as the same substantially conforms with the specifications laid down in said letter of instruction and administrative order. Accordingly the early warning device requirement can neither be oppressive, onerous, immoral, nor confiscatory, much less does it make manufacturers and dealers of said devices 'instant millionaires at the expense of car owners' as petitioner so sweepingly concludes * * *. Petitioner's fear that with the early warning device requirement 'a more subtle racket may be committed by those called upon to enforce it * * * is an unfounded speculation. Besides, that unscrupulous officials may try to enforce said requirement in an unreasonable manner or to an unreasonable degree, does not render the same illegal or immoral where, as in the instant case, the challenged Letter of Instruction No. 229 and implementing order disclose none of the constitutional defects alleged against it. 32 7 It does appear clearly that petitioner's objection to this Letter of Instruction is not premised on lack of power, the justification for a finding of unconstitutionality, but on the pessimistic, not to say negative, view he entertains as to its wisdom. That approach, it put it at its mildest, is distinguished, if that is the appropriate word, by its unorthodoxy. It bears repeating "that this Court, in the language of Justice Laurel, 'does not pass upon questions of wisdom justice or expediency of legislation.' As expressed by Justice Tuason: 'It is not the province of the courts to supervise legislation and keep it within the bounds of propriety and common sense. That is primarily and exclusively a legislative concern.' There can be no possible objection then to the observation of Justice Montemayor. 'As long as laws do not violate any Constitutional provision, the Courts merely interpret and apply them regardless of whether or not they are wise or salutary. For they,

according to Justice Labrador, 'are not supposed to override legitimate policy and * * * never inquire into the wisdom of the law.' It is thus settled, to paraphrase Chief Justice Concepcion in Gonzales v. Commission on Elections, that only congressional power or competence, not the wisdom of the action taken, may be the basis for declaring a statute invalid. This is as it ought to be. The principle of separation of powers has in the main wisely allocated the respective authority of each department and confined its jurisdiction to such a sphere. There would then be intrusion not allowable under the Constitution if on a matter left to the discretion of a coordinate branch, the judiciary would substitute its own. If there be adherence to the rule of law, as there ought to be, the last offender should be courts of justice, to which rightly litigants submit their controversy precisely to maintain unimpaired the supremacy of legal norms and prescriptions. The attack on the validity of the challenged provision likewise insofar as there may be objections, even if valid and cogent on is wisdom cannot be sustained. 33 8. The alleged infringement of the fundamental principle of non-delegation of legislative power is equally without any support well-settled legal doctrines. Had petitioner taken the trouble to acquaint himself with authoritative pronouncements from this Tribunal, he would not have the temerity to make such an assertion. An exempt from the aforecited decision of Edu v. Ericta sheds light on the matter: "To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that the legislature itself determines matters of principle and lays down fundamental policy. Otherwise, the charge of complete abdication may be hard to repel A standard thus defines legislative policy, marks its maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be

effected. It is the criterion by which legislative purpose may be carried out. Thereafter, the executive or administrative office designated may in pursuance of the above guidelines promulgate supplemental rules and regulations. The standard may be either express 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.' This is to adhere to the recognition given expression by Justice Laurel in a decision announced not too long after the Constitution came into force and effect that the principle of non-delegation "has been made to adapt itself to the complexities of modern governments, giving rise to the adoption, within certain limits, of the principle of "subordinate legislation" not only in the United States and England but in practically all modern governments.' He continued: 'Accordingly, with the growing complexity of modern life, the multiplication of the subjects of governmental regulation, and the increased difficulty of administering the laws, there is a constantly growing tendency toward the delegation of greater powers by the legislature and toward the approval of the practice by the courts.' Consistency with the conceptual approach requires the reminder that what is delegated is authority nonlegislative in character, the completeness of the statute when it leaves the hands of Congress being assumed." 34 9. The conclusion reached by this Court that this petition must be dismissed is reinforced by this consideration. The petition itself quoted these two whereas clauses of the assailed Letter of Instruction: "[Whereas], the hazards posed by such obstructions to traffic have been recognized

by international bodies concerned with traffic safety, the 1968 Vienna Convention on Road Signs and Signals and the United Nations Organization (U.N.); [Whereas], the said Vionna Convention, which was ratified by the Philippine Government under P.D. No. 207, recommended the enactment of local legislation for the installation of road safety signs and devices; * * * " 35 It cannot be disputed then that this Declaration of Principle found in the Constitution possesses relevance: "The Philippines * * * adopts the generally accepted principles of international law as part of the law of the land * * *." 36 The 1968 Vienna Convention on Road Signs and Signals is impressed with such a character. It is not for this country to repudiate a commitment to which it had pledged its word. The concept of Pacta sunt servanda stands in the way of such an attitude, which is, moreover, at war with the principle of international morality. 10. That is about all that needs be said. The rather court reference to equal protection did not even elicit any attempt on the Part of Petitioner to substantiate in a manner clear, positive, and categorical why such a casual observation should be taken seriously. In no case is there a more appropriate occasion for insistence on what was referred to as "the general rule" in Santiago v. Far Eastern Broadcasting Co., 37 namely, "that the constitutionality of a law wig not be considered unless the point is specially pleaded, insisted upon, and adequately argued." 38"Equal protection" is not a talismanic formula at the mere invocation of which a party to a lawsuit can rightfully expect that success will crown his efforts. The law is anything but that. WHEREFORE, this petition is dismissed. The restraining order is lifted. This decision is immediately executory. No costs.

Castro, C.J., Barredo, Antonio, Santos, Fernandez, Guerrero, Abad Santos, De Castro and Melencio-Herrera, concur. Makasiar, J, reserves the right to file a separate opinion. Aquino J., took no part. Concepcion J., is on leave. Castro, C.J., certifies that Justice Concepcion concurs in their decision.

Separate Opinions

TEEHANKEE, J., dissenting: I dissent from the majority's peremptory dismissal of the petition and lifting of the restraining order issued on October 19, 1978 against the blanket enforcement of the requirement that all motor vehicles be equipped with the socalled early warning device, without even hearing the parties in oral argument as generally required by the Court in original cases of far-reaching consequence such as the case at bar. Lack of time presents my filing an extended dissent. I only wish to state that the petition advances grave and serious

grounds of assailing "the rules and regulations issued by the Land Transportation Commission under Administrative Order No. 1 and Memorandum Circular No. 32 [which] do not reflect the real intent, noble objectives and spirit of Letter of Instructions No. 229, as amended by Letter of Instructions Nos. 479 and 716, because it is oppressive, unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to the precepts of our compassionate New Society," because of the following considerations, inter alia: 1. It is oppressive, arbitrary and discriminatory to require owners of motor vehicles with built-in and more effective and efficient E.W.D.'S such as "a) blinking lights in the fore and aft of said motor vehicles, 1)) battery-powered blinking lights inside motor vehicles, c) built-in reflectorized tapes on front and rear bumpers of motor vehicles....... to purchase the E.W.D. specified in the challenged administrative order, whose effectivity and utility have yet to be demonstrated. 2. The public necessity for the challenged order has yet to be shown. No valid refutation has been made of petitioner's assertion that the "E.W.D.'s are not too vital to the prevention of nighttime vehicular accidents. Statistics shows that of the 26,000 motor vehicle accidents that occurred in 1976, only 390 or 1.5 per cent involved rear-end collisions," as to require the purchase and installation of the questioned E.W.D. for almost 900,000 vehicles throughout the country; 3. The big financial burden to be imposed on all motorists is staggering, and petitioner's assertion that "as of 1975, there were at least 865,037 motor vehicles all over the country requiring E.W.D.'S and at the minimum price of 1156.00 per set, this would mean a consumer outlay of P 48,451,872.00, or close to P 50 million for the questioned E.W.D.'S "stands unchallenged;

4. No real effort has been made to show that there can be practical and less burdensome alternative road safety devices for stalled vehicles than the prescribed E.W.D., such as the common petroleum lamps "kinke" which can be placed just as effectively in front of stalled vehicles on the highways; and 5. There is no imperative need for imposing such a bet requirement on all vehicles. The respondents have not shown that they have availed of the powers and prerogatives vested in their offices such as ridding the country of dilapidated trucks and vehicles which are the main cause of the deplorable -highway accidents due to stoned vehicles, establishing an honest and foolproof system of examination and licensing of motor vehicle drivers so as to ban the reckless and irresponsible and a sustained education campaign to instill safe driving habits and attitudes that can be carried out for much less than the P 50 million burden that would be imposed by the challenged order. I do feel that a greater "degree of receptivity and sympathy" could be extended to the petitioner for his civic mindedness in having filed the present petition g as capricious and unreasonable the "all pervading police power" of the State instead of throwing the case out of court and leaving the wrong impression that the exercise of police power insofar as it may affect the life, liberty and property of any person is no longer subject to judicial inquiry.

# Separate Opinions

TEEHANKEE, J., dissenting: I dissent from the majority's peremptory dismissal of the petition and lifting of the restraining order issued on October 19, 1978 against the blanket enforcement of the requirement that all motor vehicles be equipped with the socalled early warning device, without even hearing the parties in oral argument as generally required by the Court in original cases of far-reaching consequence such as the case at bar. Lack of time presents my filing an extended dissent. I only wish to state that the petition advances grave and serious grounds of assailing "the rules and regulations issued by the Land Transportation Commission under Administrative Order No. 1 and Memorandum Circular No. 32 [which] do not reflect the real intent, noble objectives and spirit of Letter of Instructions No. 229, as amended by Letter of Instructions Nos. 479 and 716, because it is oppressive, unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to the precepts of our compassionate New Society," because of the following considerations, inter alia: 1. It is oppressive, arbitrary and discriminatory to require owners of motor vehicles with built-in and more effective and efficient E.W.D.'S such as "a) blinking lights in the fore and aft of said motor vehicles, 1)) battery-powered blinking lights inside motor vehicles, c) built-in reflectorized tapes on front and rear bumpers of motor vehicles....... to purchase the E.W.D. specified in the challenged administrative order, whose effectivity and utility have yet to be demonstrated. 2. The public necessity for the challenged order has yet to be shown. No valid refutation has been made of petitioner's assertion that the "E.W.D.'s are not too vital to the

prevention of nighttime vehicular accidents. Statistics shows that of the 26,000 motor vehicle accidents that occurred in 1976, only 390 or 1.5 per cent involved rear-end collisions," as to require the purchase and installation of the questioned E.W.D. for almost 900,000 vehicles throughout the country; 3. The big financial burden to be imposed on all motorists is staggering, and petitioner's assertion that "as of 1975, there were at least 865,037 motor vehicles all over the country requiring E.W.D.'S and at the minimum price of 1156.00 per set, this would mean a consumer outlay of P 48,451,872.00, or close to P 50 million for the questioned E.W.D.'S "stands unchallenged; 4. No real effort has been made to show that there can be practical and less burdensome alternative road safety devices for stalled vehicles than the prescribed E.W.D., such as the common petroleum lamps "kinke" which can be placed just as effectively in front of stalled vehicles on the highways; and 5. There is no imperative need for imposing such a bet requirement on all vehicles. The respondents have not shown that they have availed of the powers and prerogatives vested in their offices such as ridding the country of dilapidated trucks and vehicles which are the main cause of the deplorable -highway accidents due to stoned vehicles, establishing an honest and foolproof system of examination and licensing of motor vehicle drivers so as to ban the reckless and irresponsible and a sustained education campaign to instill safe driving habits and attitudes that can be carried out for much less than the P 50 million burden that would be imposed by the challenged order.

I do feel that a greater "degree of receptivity and sympathy" could be extended to the petitioner for his civic mindedness in having filed the present petition g as capricious and unreasonable the "all pervading police power" of the State instead of throwing the case out of court and leaving the wrong impression that the exercise of police power insofar as it may affect the life, liberty and property of any person is no longer subject to judicial inquiry.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-29658 November 29, 1968

or has served as chief of police with exemplary record, or has served in the police department of any city with the rank of captain or its equivalent therein for at least three years; or any high school graduate who has served as officer in the Armed Forces for at least eight years with the rank of captain and/or higher. The petitioner Enrique V. Morales is the chief of the detective bureau of the Manila Police Department and holds the rank of lieutenant colonel. He began his career in 1934 as patrolman and gradually rose to his present position. Upon the resignation of Brig. Gen. Ricardo G. Papa on March 14, 1968, the petitioner was designated acting chief of police of Manila and, at the same time, given a provisional appointment to the same position by the mayor of Manila. On September 24, 1968 the respondent Commissioner of Civil Service Abelardo Subido approved the designation of the petitioner but rejected his appointment for "failure to meet the minimum educational and civil service eligibility requirements for the said position." Instead, the respondent certified other persons as qualified for the post and called the attention of the mayor to section 4 of the Decentralization Act of 1967 which requires the filling of a vacancy within 30 days after its coming into existence. Earlier, on September 5, he announced in the metropolitan newspapers that the position of chief of police of Manila was vacant and listed the qualifications which applicants should possess. The petitioner's reaction to the announcement was a demand that the respondent include him in a list of eligible and qualified applicants from which the mayor might appoint

ENRIQUE V. MORALES, petitioner, vs. ABELARDO SUBIDO, as Commissioner of Civil Service, respondent. Vicente Rodriguez, for appellant. Office of the Solicitor-General Araneta, for appellee. CASTRO, J.: The question for resolution in this case is whether a person who has served as captain in the police department of a city for at least three years but does not possess a bachelor's degree, is qualified for appointment as chief of police. The question calls for an interpretation of the following provisions of section 10 of the Police Act of 1966 (Republic Act 4864): Minimum qualification for appointment as Chief of Police Agency. No person may be appointed chief of a city police agency unless he holds a bachelor's degree from a recognized institution of learning and has served either in the Armed Forces of the Philippines or the National Bureau of Investigation,

one as chief of police of the city. He contended that his service alone as captain for more than three years in the Manila Police Department qualified him for appointment. The demand was contained in a letter which he wrote to the respondent on October 8, 1968. The mayor endorsed the letter favorably, but the respondent refused to reconsider his stand. Hence this petition for mandamus to compel the respondent to include the petitioner in a list of "five next ranking eligible and qualified persons." The petitioner's reading of section 10 of the Police Act of 1966 is, per his own phrasing, as follows: NO PERSON may be appointed chief of a city police agency unless HE (1) holds a bachelor's degree from a recognized institution of learning AND has served in the Armed Forces of the Philippines OR the National Bureau of Investigation, OR (2) has served as chief of police with exemplary record, OR (3) has served in the police department of any city with the rank of captain or its equivalent therein for at least three years; OR (4) any high school graduate who has served as officer in the Armed Forces for at least eight years with the rank of captain and/or higher. As he has served successively as captain, major and lieutenant colonel in the MPD since 1954, the petitioner's

insistence is that he falls under the third class of persons qualified for appointment as chief of a city police department. In support of this proposition, he adverts to the policy of the Act "to place the local police service on a professional level,"1 and contends that a bachelor's degree does not guarantee that one who possesses it will make a good policeman, but that, on the other hand, one who, like the petitioner, has risen from patrolman to lieutenant colonel "meets the test of professionalism." Even if we concede the correctness of the petitioner's view still we do not see how the requirement of a college degree as additional qualification can run counter to the avowed policy of the Act. On the contrary, we should think that the requirement of such additional qualification will best carry out that policy. The fallacy of petitioner's argument lies in its assumption that the choice is between one who has served long and loyally in a city police agency and another who, not having so served, has only a bachelor's degree. But that is not the issue in this case. The issue rather is whether, within the meaning and intendment of the law, in addition to service qualification, one should have educational qualification as shown by the possession of a bachelor's degree. The petitioner invokes the last paragraph of section 9 of the Act which provides: Persons who at the time of the approval of this Act have rendered at least five years of satisfactory service in a provincial, city or municipal police agency although they have not qualified in an

appropriate civil service examination are considered as civil service eligibles for the purpose of this Act. In effect, he contends that if a person who has rendered at least five years of satisfactory service in a police agency is considered a civil service eligible, so must a person be considered qualified even though he does not possess a bachelor's degree. The petitioner's argument is fallacious in two respects. First, it fails to distinguish between eligibility and qualification. For the statute may allow the compensation of service for a person's lack of eligibility but not necessarily for his lack of educational qualification. Second, section 9 governs the appointment of members of apolice agency only. On the other hand, the appointment of chiefs of police is the precise gravamen of section 10, the last paragraph of which states: Where no civil service eligible is available, provisional appointment may be made in accordance with Civil Service Law and rules: Provided, that the appointee possesses the above educational qualification: Provided, further, That in no case shall such appointment extend beyond six months, except for a valid cause, and with the approval of the Civil Service Commission. Thus, while the Act gives credit for service and allows it to compensate for the lack of civil service eligibility in the case of a member of a police agency, it gives no such credit for lack of civil service eligibility in the case of a chief of police. On the contrary, by providing that a person, who is not a civil service eligible, may be provisionally appointed 2 chief of police "[ p]rovided, [t]hat the appointee possesses the

above educational qualification," the Act makes it unequivocal that the possession of a college degree or a high school diploma (in addition to service) is an indispensable requisite. It is next contended that to read section 10 as requiring a bachelor's degree, in addition to service either in the Armed Forces of the Philippines or in the National Bureau of Investigation or as chief of police with an exemplary record or as a captain in a city police department for at least three years, would be to create an "absurd situation" in which a person who has served for only one month in the AFP or the NBI is in law considered the equal of another who has been a chief of police or has been a captain in a city police agency for at least three years. From this it is concluded that "the only logical equivalence of these two groups (Chief of Police with exemplary record and Police Captain for at least 3 years in a City Police Agency) is the bachelor's degree." Section 10, it must be admitted, does not specify in what capacity service in the AFP or in the NBI must have been rendered, but an admission of the existence of the ambiguity in the statute does not necessarily compel acquiescence in the conclusion that it is only in cases where the appointee's service has been in the AFP or in the NBI that he must be required to have a bachelor's degree. The logical implication of the petitioner's argument that a person who has served as captain in a city police department for at least three years need not have a bachelor's degree to qualify, is that such person need not even be a high school graduate. If such be the case would there still be need for a person to be at least a high school graduate provided he has had at least eight years of service as captain in the AFP?

The truth is that, except for the ambiguity referred to (the meaning of which is not in issue in this case), section 10 of the Act needs no interpretation because its meaning is clear. That the purpose is to require both educational and service qualifications of those seeking appointment as chief of police is evidence from a reading of the original provision of House Bill 6951 and the successive revision it underwent. Thus, section 12 of House Bill 6951 (now section 10 of the Police Act of 1966) read: Minimum Qualification for Appointment as Chief of a Police Agency. No chief of a police agency of a province or chartered city shall be appointed unless he is a member of the Philippine Bar, or a holder of a bachelor's degree in police administration. Any holder of a bachelor's degree who served either in the Philippine Constabulary or the police department of any city from the rank of captain or inspector, second class, or its equivalent for at least three years shall be eligible for appointment to the position of chief of the police agency. No chief of a municipal police force shall be appointed unless he is a holder of a four-year college degree course or a holder of a Bachelor's degree in Police Administration or Criminology. Where no civil service eligible is available provisional appointment may be made in accordance with Civil Service Law and rules, provided the appointee possesses the above educational qualification but in no case shall such appointment exceed beyond six months.

It was precisely because the bill was clearly understood as requiring both educational and service qualifications that the following exchanges of view were made on the floor of the house of Representatives: MR. VELOSO (F.). Section 12, Minimum Qualification for Appointment of Chief of a Police Agency, provides that the chief of a police agency of a province or a chartered city should be at least a member of the Philippine Bar or a holder of a bachelor's degree in Police Administration; and the chief of police of a municipality should be at least a holder of a four years' college degree or holder of a bachelor's degree in Police Administration or Criminology. At first blush, there is no reason why I should object to these minimum requirements; but I find such requirement very rigid because it would not allow a man to rise from the ranks. Take a policeman who rose from the ranks. He became a corporal, a sergeant, a police lieutenant. Shouldn't he be allowed to go higher? If he merited it, he should also be appointed chief of police of a city or municipality. MR. AMANTE. During our committee discussions, I objected to this provision of the bill because it is a very high qualification. However, somebody insisted that in order to professionalize our police system and also to attain a high standard of police efficiency, we must have a chief of police who has a college degree. The point which the gentleman is now raising was brought up by one Member in the sense that a policeman who rose from the ranks through serious hard work, even after serving for fifteen or

twenty years in the police force, cannot become chief of police for lack of a college degree. The gentleman's objection is a very good and reasonable one. I assure him that if he brings it up during the period of amendments, I will consider it. MR. VELOSO (F.). I am glad that the Committee will accept my amendment. My only regret, however, is that because I made a number of proposed amendments, I will not be ready to submit them immediately. We should just limit ourselves to the sponsorship this evening.3 Thus it appears that it was because of the educational requirement contained in the bill that objections were expressed, but while it was agreed to delete this requirement during the period of amendment, no motion was ever presented to effect the change.4 In the Senate, the Committee on Government Reorganization, to which House Bill 6951 was referred, reported a substitute measure.5 It is to this substitute bill that section 10 of the Act owes its present form and substance. Parenthetically, the substitute measure gives light on the meaning of the ambiguous phrase "and who has served either in the Armed Forces of the Philippines or the National Bureau of Investigation." The provision of the substitute bill reads: No person may be appointed chief of a city police agency unless he holds a bachelor's degree and has

served either in the Armed Forces of the Philippines or the National Bureau of Investigation or police department of any city and has held the rank of captain or its equivalent therein for at least three years or any high school graduate who has served the police department of a city for at least 8 years with the rank of captain and/or higher. Thus, service in the AFP or the NBI was intended to be in the capacity of captain for at least three years. At the behest of Senator Francisco Rodrigo, the phrase "has served as officer in the Armed Forces" was inserted so as to make the provision read: No person may be appointed chief of a city police agency unless he holds a bachelor's degree and has served either in the Armed Forces of the Philippines or the National Bureau of Investigation or police department of any city and has held the rank of captain or its equivalent therein for at least three years or any high school graduate who has served the police department of a city or who has served as officer in the Armed Forces for at least 8 years with the rank of captain and/or higher.6 It is to be noted that the Rodrigo amendment was in the nature of an addition to the phrase, "who has served the police department of a city for at least 8 years with the rank of captain and/or higher," under which the petitioner herein, who is at least a high school graduate (both parties agree that the petitioner finished the second year of the law course) could possibly qualify. However, somewhere in the legislative process the phrase was dropped and only the Rodrigo amendment was retained.

Because of the suggested possibility that the deletion was made by mistake, the writer of this opinion personally and painstakingly read and examined the enrolled bill in the possession of the legislative secretary of the Office of the President and found that the text of section 10 of the Act is as set forth in the beginning of this opinion. The text of the Act bears on page 15 thereof the signatures of President of the Senate Arturo M. Tolentino and Speaker of the House of Representatives Cornelio T. Villareal, and on page 16 thereof those of Eliseo M. Tenza, Secretary of the Senate, and Inocencio B. Pareja, Secretary of the House of Representatives, and of President Ferdinand E. Marcos. Under the enrolled bill theory, announced in Mabanag v. Lopez Vito8 this text of the Act must be deemed as importing absolute verity and as binding on the courts. As the Supreme Court of the United States said in Marshall Field & Co. v. Clark:9 The signing by the Speaker of the House of Representatives and, by the President of the Senate, in open session, of an enrolled bill, is an official attestation by the two houses of such bill as one that has passed Congress. It is a declaration by the two houses, through their presiding officers, to the President that a bill, thus attested, has received in the form, the sanction of the legislative branch of the government, and that it is delivered to him in obedience to the constitutional requirement that all bill which pass Congress shall be presented to him. And when a bill, thus attested, receives his approval, its authentication as a bill that has passed Congress should be deemed complete and unimpeachable. As the President has no authority to approve a bill not passed by Congress, an enrolled Act in the custody of the Secretary of State, and having the official

attestations of the Speaker of the house of Representatives, of the President of the Senate, and of the President of the United States, carries, on its face, a solemn assurance by the legislative and executive departments of the government, charged, respectively, with the duty of enacting and executing the laws, that it was passed by Congress. The respect due to co-equal and independent department requires the judicial department to act upon that assurance, and to accept, as having passed Congress, all bills authenticated in the manner stated; leaving the courts to determine, when the question properly arises, whether the Act, so authenticated, is in conformity with the Constitution.10 To proceed with the history of the statute, it appears that, when the two chambers of the legislature met in conference committee, the phrase "has served as chief of police with exemplary record" was added, thereby accounting for its presence in section 10 of the Act.11 What, then, is the significance of this? It logically means that except for that vagrant phrase "who has served the police department of a city for at least 8 years with the rank of captain and/or higher" a high school graduate, no matter how long he has served in a city police department, is not qualified for appointment as chief of police. Still it is insisted that "if a high school graduate who has served as captain in the Armed Forces of the Philippines for eight years irrespective of the branch of service where he served can be Chief of Police of Manila, why not one who holds an A.A. degree, completed two years in Law School, and served as Chief of the Detective Bureau for 14 years,

holding the successive ranks of Captain, Major and Lt. Colonel? Not to mention the fact that he was awarded three Presidential Awards, and was given the Congressional Commendation the highest award ever conferred in the history of the Manila Police Department." The trouble with such argument is that even if we were to concede its soundness, still we would be hard put reading it in the law because it is not there. The inclusion of desirable enlargements in the statute is addressed to the judgment of Congress and unless such enlargements are by it accepted courts are without power to make them. As Mr. Justice Frankfurter put the matter with lucidity: An omission at the time of enactment, whether careless or calculated, cannot be judicially supplied however much later wisdom may recomment the inclusion. The vital difference between initiating policy, often involving a decided break with the past, and merely carrying out a formulated policy, indicates the relatively narrow limits within which choice is fairly open to courts and the extent to which interpreting law is inescapably making law.12 In conclusion, we hold that, under the present state of the law, the petitioner is neither qualified nor eligible for appointment as chief of police of the city of Manila. Consequently, the respondent has no corresponding legal duty and therefore may not be compelled by mandamus to certify the petitioner as qualified and eligible.

ACCORDINGLY, the petition for mandamus is denied. No pronouncements as to costs. Concepcion, C.J., Reyes, J.B.L., Makalintal, Sanchez, Fernando and Capistrano, JJ., concur. Dizon, J., concurs in the result. Zaldivar, J., took no part.

Separate Opinions DIZON, J., concurring: As stated in the decision penned by Mr. Justice Fred Ruiz Castro, petitioner Enrique V. Morales began his career in the Manila Police Department in 1934 as patrolman and gradually rose to his present position that of Chief of the Detective Bureau thereof and holds the rank of Lieutenant-Colonel. In my opinion, a man bearing such credentials can be reasonably expected to be a good Chief of the Manila Police Department. But the issue before us is not whether or not his training and experience justify that expectation, but whether or not, under and in accordance with the pertinent law, he is qualified for appointment to such office to the extent that he is entitled to the relief sought, namely, the issuance of a writ of mandamus compelling the respondent Commissioner of Civil Service to include him in a list of eligible and qualified applicants from which the mayor of the City of Manila might choose the appointee who

will fill the vacant position of Chief of Police of the City of Manila. Section 10 of Police Act of 1966 (Republic Act 4864) which controls the issue before us, reads as follows: Minimum qualification for appointment as Chief of Police Agency. No person may be appointed chief of a city police agency unless he holds a bachelor's degree from a recognized institution of learning and has served either in the Armed Forces of the Philippines or the National Bureau of Investigation, or has served as chief of police with exemplary record, or has served in the police department of any city with the rank of captain or its equivalent therein for at least three years; or any high school graduate who has served as officer in the Armed Forces for at least eight years with the rank of captain and/or higher. The above legal provision may be construed as providing for two different kinds of academic qualification, namely, (1) a bachelor's degree from a recognized institution of learning, and (2) a high school degree, each of which is coupled with separate and distinct service qualifications. Any one of the latter, joined with either of the aforesaid academic requirements, would qualify a person for appointment as Chief of a city police agency. In other words, an applicant who is a holder of a bachelor's degree from a recognized institution of learning and has served either in the Armed Forces of the Philippines or the National Bureau of Investigation would make the grade, in the same manner as would another applicant with a similar bachelor's degree who has served as chief of police with exemplary record, etc.

In the case of an applicant who is a mere high school graduate, the service qualification is not only different but is higher and more exacting for obvious reasons. Petitioner, however, would construe and read the law as follows: NO PERSON may be appointed chief of a city police agency unless HE (1) holds a bachelor's degree from a recognized institution of learning AND has served in the Armed Forces of the Philippines OR the National Bureau of Investigation, OR (2) has served as chief of police with exemplary record, OR (3) has served in the police department of any city with the rank of captain or its equivalent therein for at least three years; OR (4) any high school graduate who has served as officer in the Armed Forces for at least eight years with the rank of captain and/or higher. While, in my view, petitioner's interpretation is not unreasonable, it falls short of showing that it is the true and correct meaning and intent of the law aforesaid. This, in my opinion, must lead to the conclusion that petitioner is not entitled to the issuance of a writ of mandamus for the purpose stated in his petition because to be entitled thereto he must show that, in relation to the matter at issue, he has

a clear enforceable right, on the one hand, and that the respondent has an imperative legal duty to perform, on the other. Because of this I am constrained to concur in the result.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-28396 December 29, 1967

AGRIPINO DEMAFILES, petitioner, vs. COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF ANTIQUE, in its capacity as Board of Canvassers for the newly created Municipality of Sebaste of the Province of Antique, and BENITO B. GALIDO,respondents. Salonga, Ordoez Sicat and Associates for respondent. Ramon Barrios for respondent Comelec. Jose W. Diokno for petitioner. CASTRO, J.: The new municipality of Sebaste1 in Antique province held its first election of officers in the general elections of November 14, 1967, with the petitioner Agripino Demafiles and the respondent Benito B. Galido vying for the mayoralty. On November 21 the respondent Galido asked the provincial board, acting as municipal board of canvassers pursuant to section 167 (b) of the Revised Election Code, to disregard, as "obviously manufactured", the election return

from precinct 7 on the ground that the said return shows that 195 voters were registered (of whom 188 voted), when, according to a certificate of the municipal election registrar only 182 had registered in that precinct as of October 30, 1997. At its session on the following day, November 22, the board, over the objection of one member, voted to reject the return from precinct 7 and then proceeded with the canvass of the returns from the other precints. The resulting tally gave Galido 888 votes as against 844 for Demafiles. Accordingly, Galido was proclaimed mayor-elect of the municipality of Sebaste. On November 24 Demafiles wired the Commission on Elections, protesting the board's action of rejection of the return from precinct 7 and the subsequent proclamation of Galido, and challenging the right of two board members, Julito Moscoso and Quirico Escao, to sit, considering that they were reelectionists. Acting on the protest, the COMELEC resolved on November 28, 1967: To annul the canvass and proclamation of the local officials of the new municipality of Sebaste, Antique, which was made by the Provincial Board of Antique; To constitute the Board of Canvassers by appointing the substitutes pursuant to the provisions of Sec. 167 (a) of the Revised Election Code, which shall canvass anew the results of the election for local offices of Sebaste, Antique, in accordance with the Instructions to Boards of Canvassers contained in the Resolution of the Commission No. RR-544, particularly No. 5-K thereof, and thereafter to proclaim the winning candidates for local offices of said municipality.

In turn, Galido asked for a reconsideration on the ground that the two members of the provincial board who were reelectionists were disqualified from sitting only when the board was acting as a provincial, but not as a municipal, board of canvassers and that the COMELEC resolution annulling the canvass and proclamation of officials was issued without giving him an opportunity to be heard. In its resolution of December 4, 1967 the respondent Commission reconsidered its previous order and held "that the canvass and proclamation already made of the local officials . . . stands". Failing to secure a reconsideration of this latter resolution, Demafiles filed the present petition for mandamus andcertiorari to set aside the aforesaid resolution of the COMELEC, to annull the proclamation of Galido, and to secure an order directing the COMELEC to appoint substitute members of the provincial board and to order a new canvass of the returns, including that from precinct 7. The three principal issues tendered for resolution in this case are: (1) whether the respondent board of canvassers was within the periphery of its power in rejecting the return from precinct 7 on the strength of an election registrar's certificate that a less number of voters than that shown in the return had registered; (2) whether the provincial board members, who were candidates for reelection, were disqualified from sitting in the board in its capacity as a municipal board of canvassers; and (3) whether the Commission on Elections can order the board of canvassers to count a return from a given precinct. These issues, together with the arguments of the parties, will be discussed seriatim, but we must first proceed to

dispose of the preliminary question raised by the respondent Galido, namely, that this case is moot because he had taken his oath and assumed office on November 22, pursuant to Republic Act 4870. Obviously, the frame of reference is section 2 of the statute which reads: The first mayor, vice-mayor and councilors of the Municipality of Sebaste shall be elected in the next general elections for local officials and shall have qualified [sic]. In our view, the last portion of the provision "and shall have qualified" is devoid of any meaning, is unmitigated jargon in or out of context, and does not warrant the respondent's reading that the term of office of the first municipal officials of Sebaste begins immediately after their proclamation. It is quite probable that that is what the legislature meant. But here is a clear case of a failure to express a meaning, and a becoming sense of judicial modesty forbids the courts from assuming and, consequently, from supplying.itc-alf "If there is no meaning in it," said the King in Alice in Wonderland, "that saves a world of trouble, you know, as we needn't try to find any." Frankfurter, who himself was fond of quoting this passage, admonishes that "a judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration."2 Accordingly, we have to go by the general rule that the term of office of municipal officials shall begin on the first day of January following their election, 3 and so the assumption of office by the respondent Galido in no way

affected the basic issues in this case, which we need not reach and resolve. First, a canvassing board performs a purely ministerial function that of compiling and adding the results they appear in the returns, transmitted to it. This is the teaching in Nacionalista Party v. Commission on Elections :4 "the canvassers are to be satisfied of the, genuineness of the returns namely, that the papers presented to them are not forged and spurious, that they are returns, and that they are signed by the proper officers. When so satisfied, . . . they may not reject any returns because of informalities in them or because of illegal and fraudulent practices in the elections."5 Thus, they cannot pass upon the validity of an election return, much less exclude it from the canvass on the ground that the votes cast in the precinct from whence it came are illegal.6 But the exclusion of the return in this case is sought to be justified on the ground that it is "obviously manufactured" because, contrary to the statement therein that there were 195 registered voters, of whom 188 voted, the certificate of the local election registrar states that only 182 voters had registered on October 30, 1967.Lagumbay v. Commission on Elections7 is cited in support of this view. In Lagumbay the returns were palpably false as it was indeed statistically improbable that "all the eight candidates of one party garnered all the votes, each of them receiving exactly the same number, whereas all the eight candidates of the other party got preciselynothing.itc-alf" In other words, the aid of evidence aliunde was not needed, as "the fraud [being] so palpable from the return itself (res ipsa loquitur the thing speaks for itself), there is no reason to accept it and give it prima facievalue.

On the other hand, the return in this case shows nothing on its face from which the canvassers might conclude that it does not speak the truth. It is only when it is compared in the certificate of the election registrar that a discrepancy appears as to the number of registered voters. The return therefore is by no means "obviously manufactured" so as to justify its exclusion. This is not to belittle the respondent's claim that more people than registered voters were allowed to vote in precinct 7. Perhaps that is true, although the petitioner claims that after October 30, 1967 eight more voters were allowed to register (making a total of 190, voters), and on the day of the election 5 voters erroneously assigned to precinct 6 were allowed to vote in precinct 7 because that was where they were really assigned. The point is simply that this question should be threshed out in an election contest.itc-alf Lagumbay itself explicitly says Of course we agree that fraud in the holding of the election should be handled and finally settled by the corresponding courts or electoral tribunals. That is the general rule, where testimonial or documentary evidence is necessary. . . . Consequently, the canvass made and proclamation had should be annulled.8 Second, the canvass and proclamation should be annulled because two of the four members of the board of canvassers were disqualified from sitting in it, they being candidates for reelection. As this Court held in Salcedo v. Commission on Elections:9

And added reason for the nullification of the actuation of the Provincial Board of Oriental Mindoro is the fact that its members were disqualified to act it appearing that they were all candidates for reelection. This is clear from Section 28 of the Revised Election Code which provides that any member of the provincial board who is a candidate for an elective office shall be incompetent to act in said board in the performance of its duties in connection with the election. Branding the above statement as obiter dictum, the respondent Galido argues that reelectionist members of the provincial board are disqualified under section 28 only when the board acts as a provincial board of canvassers, to prevent them fro canvassing their own votes, and not when they sit as a municipal board of canvassers. With respect to the canvass and proclamation made the provincial board of Oriental Mindoro, three issues raised in Salcedo, in resolving which this Court held (1) that a provincial board cannot act as a municipal board of canvassers where a municipal council has been formed; (2) that provincial board members who are candidates for reelection are disqualified to sit in the board and (3) that a board of canvassers which excludes from canvass the return from a precinct acts "in contravention of law." At any rate the language of section 28 is all-inclusive Thus: Any member of a provincial board or of a municipal council who is a candidate for office in any election, shall be incompetent to act on said body in the performance of the duties the of relative to said election . . . .

The statute draws no distinction between the provincial board acting as a provincial board of canvassers and the same board acting as a municipal canvassing body new municipalities, and so we make none, in line with the maxim ubi lex non distinguit, nec nos distinguere debemos . Third, it is now settled doctrine that the COMELEC has the power to annul an illegal canvass and an illegal proclamation as when they are based on incomplete returns, and order a new canvass to be made by counting the returns wrongfully excluded.10 If it has power to direct that certain copies of election returns be used in preference to other copies of the same returns,11 there is no reason why it cannot direct canvassing bodies to count all turns which are otherwise regular.itc-alf Indeed, it is its duty to do so, failing which it may be compelled by mandamus. As earlier pointed out, it is the ministerial function a board of canvassers to count the results as they appeal in the returns which on their face do not reveal any irregularities or falsities. ACCORDINGLY, the resolutions dated December 4 and 8, 1967 of the Commission on Elections are set aside, and the canvass of returns made and the subsequent proclamation of the respondent Benito B. Galido are annulled. The respondent Commission on Elections is hereby directed. (1) to appoint new members of the board of canvassers in substitution of Julito Moscoso and Quirico Escao, and (2) immediately thereafter to order the board of canvassers as reconstituted to convene, canvass all votes including those appearing in the return from precinct 7, and, in accordance with the results of such canvass, proclaim the winning candidates. Costs against the private respondent Galido.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Bengzon, J.P., Sanchez and Angeles, JJ., concur. Dizon, Zaldivar and Fernando, JJ., took no part. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-44143 August 31, 1988 THE PEOPLE OF THE PHILIPPINES, plaintiff, vs. EUSEBIO NAZARIO, accused-appellant. The Solicitor General for plaintiff-appellee. Teofilo Ragodon for accused-appellant.

This defendant is charged of the crime of Violation of Municipal Ordinance in an information filed by the provincial Fiscal, dated October 9, 1968, as follows: That in the years 1964, 1965 and 1966, in the Municipality of Pagbilao, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being then the owner and operator of a fishpond situated in the barrio of Pinagbayanan, of said municipality, did then and there willfully, unlawfully and feloniously refuse and fail to pay the municipal taxes in the total amount of THREE HUNDRED SIXTY TWO PESOS AND SIXTY TWO CENTAVOS (P362.62), required of him as fishpond operator as provided for under Ordinance No. 4, series of 1955, as amended, inspite of repeated demands made upon him by the Municipal Treasurer of Pagbilao, Quezon, to pay the same. Contrary to law.

SARMIENTO, J.: The petitioner was charged with violation of certain municipal ordinances of the municipal council of Pagbilao, in Quezon province. By way of confession and avoidance, the petitioner would admit having committed the acts charged but would claim that the ordinances are unconstitutional, or, assuming their constitutionality, that they do not apply to him in any event. The facts are not disputed:

For the prosecution the following witnesses testified in substance as follows; MIGUEL FRANCIA, 39 years of age, married, farmer and resident of Lopez, Quezon In 1962 to 1967, I resided at Pinagbayanan, Pagbilao, Quezon. I know the accused as I worked in his fishpond in 1962 to 1964. The fishpond of Nazario is at Pinagbayanan, Pagbilao, Quezon. I worked in the clearing of the fishpond, the construction of the dikes and the catching of fish. On cross-examination, this witness declared: I worked with the accused up to March 1964. NICOLAS MACAROLAY, 65 years of age, married, copra maker and resident of Pinagbayanan, Pagbilao, Quezon I resided at Pinagbayanan, Pagbilao, Quezon since 1959 up to the present. I know the accused since 1959 when he opened a fishpond at Pinagbayanan, Pagbilao, Quezon. He still operates the fishpond up to the present and I know this fact as I am the barrio captain of Pinagbayanan. On cross-examination, this witness declared: I came to know the accused when he first operated his fishpond since 1959.

On re-direct examination, this witness declared: I was present during the catching of fish in 1967 and the accused was there. On re-cross examination, this witness declared: I do not remember the month in 1962 when the accused caught fish. RODOLFO R. ALVAREZ, 45 years old, municipal treasurer of Pagbilao, Quezon, married As Municipal Treasurer I am in charge of tax collection. I know the accused even before I was Municipal Treasurer of Pagbilao. I have written the accused a letter asking him to pay his taxes (Exhibit B). Said letter was received by the accused as per registry return receipt, Exhibit B-1. The letter demanded for payment of P362.00, more or less, by way of taxes which he did not pay up to the present. The former Treasurer, Ceferino Caparros, also wrote a letter of demand to the accused (Exhibit C). On June 28, 1967, I sent a letter to the Fishery Commission (Exhibit D), requesting information if accused paid taxes with that office. The Commission sent me a certificate (Exhibits D-1, D-2 & D-3). The accused had a fishpond lease agreement. The taxes unpaid were for the years 1964, 1965 and 1966.

On cross-examination, this witness declared: I have demanded the taxes for 38.10 hectares. On question of the court, this witness declared: What I was collecting from the accused is the fee on fishpond operation, not rental. The prosecution presented as part of their evidence Exhibits A, A-1, A-2, B, B-2, C, D, D-1, D-2, D-3, E, F, F-1 and the same were admitted by the court, except Exhibits D, D-1, D-2 and D-3 which were not admitted for being immaterial. For the defense the accused EUSEBIO NAZARIO, 48 years of age, married, owner and general manager of the ZIP Manufacturing Enterprises and resident of 4801 Old Sta. Mesa, Sampaloc, Manila, declared in substance as follows: I have lived in Sta. Mesa, Manila, since 1949. I buy my Residence Certificates at Manila or at San Juan. In 1964, 1965 and 1966, I was living in Manila and my business is in Manila and my family lives at Manila. I never resided at Pagbilao, Quezon. I do not own a house at Pagbilao. I am a lessee of a fishpond located at Pagbilao, Quezon, and I have a lease agreement to that effect with the Philippine

Fisheries Commission marked as Exhibit 1. In 1964, 1965 and 1966, the contract of lease, Exhibit 1, was still existing and enforceable. The Ordinances Nos. 4, 15 and 12, series of 1955, 1965 and 1966, were translated into English by the Institute of National Language to better understand the ordinances. There were exchange of letters between me and the Municipal Treasurer of Pagbilao regarding the payment of the taxes on my leased fishpond situated at Pagbilao. There was a letter of demand for the payment of the taxes by the treasurer (Exhibit 3) which I received by mail at my residence at Manila. I answered the letter of demand, Exhibit 3, with Exhibit 3-A. I requested an inspection of my fishpond to determine its condition as it was not then in operation. The Municipal Treasurer Alvarez went there once in 1967 and he found that it was destroyed by the typhoon and there were pictures taken marked as Exhibits 4, 4-A, 4-B and 4C. I received another letter of demand, Exhibit 5, and I answered the same (Exhibit 5-A). I copied my reference quoted in Exhibit 5-A from Administrative Order No. 6, Exhibit 6. I received another letter of demand from Tomas Ornedo, Acting Municipal Treasurer of Pagbilao, dated February 16, 1966, Exhibit 7, and I answered the same with the letter marked as Exhibit 7-A, dated February 26, 1966. I received another letter of demand from Treasurer Alvarez of Pagbilao, Exhibit 8, and I answered the same (Exhibit 8-A). In 1964, I went to Treasurer Caparros to ask for an application for license tax and he said

none and he told me just to pay my taxes. I did not pay because up to now I do not know whether I am covered by the Ordinance or not. The letters of demand asked me to pay different amounts for taxes for the fishpond. Because under Sec. 2309 of the Revised Administrative Code, municipal taxes lapse if not paid and they are collecting on a lapsed ordinance. Because under the Tax Code, fishermen are exempted from percentage tax and privilege tax. There is no law empowering the municipality to pass ordinance taxing fishpond operators. The defense presented as part of their evidence Exhibits 1, 2, 3, 3-A, 4, 4-B, 4-B, 4C, 5, 5-A, 6, 6-A, 6-B, 6-C, 7, 7-A, 8 and 8-A and the same were admitted by the court. From their evidence the prosecution would want to show to the court that the accused, as lessee or operator of a fishpond in the municipality of Pagbilao, refused, and still refuses, to pay the municipal taxes for the years 1964, 1965 and 1966, in violation of Municipal Ordinance No. 4, series of 1955, as amended by Municipal Ordinance No. 15, series of 1965, and finally amended by Municipal Ordinance No. 12, series of 1966. On the other hand, the accused, by his evidence, tends to show to the court that the taxes sought to be collected have already lapsed and that there is no law empowering municipalities to pass ordinances taxing

fishpond operators. The defense, by their evidence, tried to show further that, as lessee of a forest land to be converted into a fishpond, he is not covered by said municipal ordinances; and finally that the accused should not be taxed as fishpond operator because there is no fishpond yet being operated by him, considering that the supposed fishpond was under construction during the period covered by the taxes sought to be collected. Finally, the defendant claims that the ordinance in question is ultra vires as it is outside of the power of the municipal council of Pagbilao, Quezon, to enact; and that the defendant claims that the ordinance in question is ambiguous and uncertain. There is no question from the evidences presented that the accused is a lessee of a parcel of forest land, with an area of 27.1998 hectares, for fishpond purposes, under Fishpond Lease Agreement No. 1066, entered into by the accused and the government, through the Secretary of Agriculture and Natural Resources on August 21, 1959. There is no question from the evidences presented that the 27.1998 hectares of land leased by the defendant from the government for fishpond purposes was actually converted into fishpond and used as such, and therefore

defendant is an operator of a fishpond within the purview of the ordinance in question. 1 The trial Court 2 returned a verdict of guilty and disposed as follows: VIEWED IN THE LIGHT OF ALL THE FOREGOING, the Court finds the accused guilty beyond reasonable doubt of the crime of violation of Municipal Ordinance No. 4, series of 1955, as amended by Ordinance No. 15, series of 1965 and further amended by Ordinance No. 12, series of 1966, of the Municipal Council of Pagbilao, Quezon; and hereby sentences him to pay a fine of P50.00, with subsidiary imprisonment in case of insolvency at the rate of P8.00 a day, and to pay the costs of this proceeding. SO ORDERED. 3 In this appeal, certified to this Court by the Court of Appeals, the petitioner alleges that: I. THE LOWER COURT ERRED IN NOT DECLARING THAT ORDINANCE NO. 4, SERIES OF 1955, AS AMENDED BY ORDINANCE NO. 15, SERIES OF 1965, AND AS FURTHER AMENDED BY ORDINANCE NO. 12, SERIES OF 1966, OF THE MUNICIPALITY OF PAGBILAO, QUEZON, IS NULL AND VOID FOR BEING AMBIGUOUS AND UNCERTAIN. II.

THE LOWER COURT ERRED IN NOT HOLDING THAT THE ORDINANCE IN QUESTION, AS AMENDED, IS UNCONSTITUTIONAL FOR BEING EX POST FACTO. III. THE LOWER COURT ERRED IN NOT HOLDING THAT THE ORDINANCE IN QUESTION COVERS ONLY OWNERS OR OVERSEER OF FISHPONDS OF PRIVATE OWNERSHIP AND NOT TO LESSEES OF PUBLIC LANDS. IV. THE LOWER COURT ERRED IN NOT FINDING THAT THE QUESTIONED ORDINANCE, EVEN IF VALID, CANNOT BE ENFORCED BEYOND THE TERRITORIAL LIMITS OF PAGBILAO AND DOES NOT COVER NONRESIDENTS. 4 The ordinances in question are Ordinance No. 4, series of 1955, Ordinance No. 15, series of 1965, and Ordinance No. 12, series of 1966, of the Municipal Council of Pagbilao. Insofar as pertinent to this appeal, the salient portions thereof are hereinbelow quoted: Section 1. Any owner or manager of fishponds in places within the territorial limits of Pagbilao, Quezon, shall pay a municipal tax in the amount of P3.00 per hectare of fishpond on part thereof per annum. 5 xxx xxx xxx

Sec. l (a). For the convenience of those who have or owners or managers of fishponds within the territorial limits of this municipality, the date of payment of municipal tax relative thereto, shall begin after the lapse of three (3) years starting from the date said fishpond is approved by the Bureau of Fisheries. 6 xxx xxx xxx Section 1. Any owner or manager of fishponds in places within the territorial limits of Pagbilao shall pay a municipal tax in the amount of P3.00 per hectare or any fraction thereof per annum beginning and taking effect from the year 1964, if the fishpond started operating before the year 1964. 7 The first objection refers to the ordinances being allegedly "ambiguous and uncertain." 8 The petitioner contends that being a mere lessee of the fishpond, he is not covered since the said ordinances speak of "owner or manager." He likewise maintains that they are vague insofar as they reckon the date of payment: Whereas Ordinance No. 4 provides that parties shall commence payment "after the lapse of three (3) years starting from the date said fishpond is approved by the Bureau of Fisheries." 9 Ordinance No. 12 states that liability for the tax accrues "beginning and taking effect from the year 1964 if the fishpond started operating before the year 1964."10 As a rule, a statute or act may be said to be vague when it lacks comprehensible standards that men "of common intelligence must necessarily guess at its meaning and differ as to its application." 11 It is repugnant to the

Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targetted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. But the act must be utterly vague on its face, that is to say, it cannot be clarified by either a saving clause or by construction. Thus, in Coates v. City of Cincinnati, 12 the U.S. Supreme Court struck down an ordinance that had made it illegal for "three or more persons to assemble on any sidewalk and there conduct themselves in a manner annoying to persons passing by." 13 Clearly, the ordinance imposed no standard at all "because one may never know in advance what 'annoys some people but does not annoy others.' " 14 Coates highlights what has been referred to as a "perfectly vague" 15 act whose obscurity is evident on its face. It is to be distinguished, however, from legislation couched in imprecise language but which nonetheless specifies a standard though defectively phrased in which case, it may be "saved" by proper construction. It must further be distinguished from statutes that are apparently ambiguous yet fairly applicable to certain types of activities. In that event, such statutes may not be challenged whenever directed against such activities. In Parker v. Levy, 16 a prosecution originally under the U.S. Uniform Code of Military Justice (prohibiting, specifically, "conduct unbecoming an officer and gentleman"), the defendant, an army officer who had urged his men not to go to Vietnam and called the Special Forces trained to fight there thieves and murderers, was not allowed to invoke the

void for vagueness doctrine on the premise that accepted military interpretation and practice had provided enough standards, and consequently, a fair notice that his conduct was impermissible. It is interesting that in Gonzales v. Commission on Elections, 17 a divided Court sustained an act of Congress (Republic Act No. 4880 penalizing "the too early nomination of candidates" 18 limiting the election campaign period, and prohibiting "partisan political activities"), amid challenges of vagueness and overbreadth on the ground that the law had included an "enumeration of the acts deemed included in the terms 'election campaign' or 'partisan political activity" 19 that would supply the standards. "As thus limited, the objection that may be raised as to vagueness has been minimized, if not totally set at rest." 20 In his opinion, however, Justice Sanchez would stress that the conduct sought to be prohibited "is not clearly defined at all." 21 "As worded in R.A 4880, prohibited discussion could cover the entire spectrum of expression relating to candidates and political parties." 22 He was unimpressed with the "restrictions" Fernando's opinion had relied on: " 'Simple expressions of opinions and thoughts concerning the election' and expression of 'views on current political problems or issues' leave the reader conjecture, to guesswork, upon the extent of protection offered, be it as to the nature of the utterance ('simple expressions of opinion and thoughts') or the subject of the utterance ('current political problems or issues')." 23 The Court likewise had occasion to apply the "balancing-ofinterests" test, 24 insofar as the statute's ban on early nomination of candidates was concerned: "The rational connection between the prohibition of Section 50-A and its object, the indirect and modest scope of its restriction on

the rights of speech and assembly, and the embracing public interest which Congress has found in the moderation of partisan political activity, lead us to the conclusion that the statute may stand consistently with and does not offend the Constitution." 25 In that case, Castro would have the balance achieved in favor of State authority at the "expense" of individual liberties. In the United States, which had ample impact on Castro's separate opinion, the balancing test finds a close kin, referred to as the "less restrictive alternative " 26 doctrine, under which the court searches for alternatives available to the Government outside of statutory limits, or for "less drastic means" 27 open to the State, that would render the statute unnecessary. In United States v. Robel, 28 legislation was assailed, banning members of the (American) Communist Party from working in any defense facility. The U.S. Supreme Court, in nullifying the statute, held that it impaired the right of association, and that in any case, a screening process was available to the State that would have enabled it to Identify dangerous elements holding defense positions. 29 In that event, the balance would have been struck in favor of individual liberties. It should be noted that it is in free expression cases that the result is usually close. It is said, however, that the choice of the courts is usually narrowed where the controversy involves say, economic rights, 30 or as in the Levycase, military affairs, in which less precision in analysis is required and in which the competence of the legislature is presumed. In no way may the ordinances at bar be said to be tainted with the vice of vagueness. It is unmistakable from their very provisions that the appellant falls within its coverage. As the actual operator of the fishponds, he comes within the

term " manager." He does not deny the fact that he financed the construction of the fishponds, introduced fish fries into the fishponds, and had employed laborers to maintain them. 31 While it appears that it is the National Government which owns them, 32 the Government never shared in the profits they had generated. It is therefore only logical that he shoulders the burden of tax under the said ordinances. We agree with the trial court that the ordinances are in the character of revenue measures 33 designed to assist the coffers of the municipality of Pagbilao. And obviously, it cannot be the owner, the Government, on whom liability should attach, for one thing, upon the ancient principle that the Government is immune from taxes and for another, since it is not the Government that had been making money from the venture. Suffice it to say that as the actual operator of the fishponds in question, and as the recipient of profits brought about by the business, the appellant is clearly liable for the municipal taxes in question. He cannot say that he did not have a fair notice of such a liability to make such ordinances vague. Neither are the said ordinances vague as to dates of payment. There is no merit to the claim that "the imposition of tax has to depend upon an uncertain date yet to be determined (three years after the 'approval of the fishpond' by the Bureau of Fisheries, and upon an uncertain event (if the fishpond started operating before 1964), also to be determined by an uncertain individual or individuals." 34 Ordinance No. 15, in making the tax payable "after the lapse of three (3) years starting from the date said fishpond is approved by the Bureau of Fisheries," 35 is unequivocal about the date of payment, and its amendment by Ordinance No. 12, reckoning liability thereunder

"beginning and taking effect from the year 1964 if the fishpond started operating before the year 1964 ," 36 does not give rise to any ambiguity. In either case, the dates of payment have been definitely established. The fact that the appellant has been allegedly uncertain about the reckoning dates as far as his liability for the years 1964, 1965, and 1966 is concerned presents a mere problem in computation, but it does not make the ordinances vague. In addition, the same would have been at most a difficult piece of legislation, which is not unfamiliar in this jurisdiction, but hardly a vague law. As it stands, then, liability for the tax accrues on January 1, 1964 for fishponds in operation prior thereto (Ordinance No. 12), and for new fishponds, three years after their approval by the Bureau of Fisheries (Ordinance No. 15). This is so since the amendatory act (Ordinance No. 12) merely granted amnesty unto old, delinquent fishpond operators. It did not repeal its mother ordinances (Nos. 4 and 15). With respect to new operators, Ordinance No. 15 should still prevail. To the Court, the ordinances in question set forth enough standards that clarify imagined ambiguities. While such standards are not apparent from the face thereof, they are visible from the intent of the said ordinances. The next inquiry is whether or not they can be said to be ex post facto measures. The appellant argues that they are: "Amendment No. 12 passed on September 19, 1966, clearly provides that the payment of the imposed tax shall "beginning and taking effect from the year 1964, if the fishpond started operating before the year 1964.' In other words, it penalizes acts or events occurring before its passage, that is to say, 1964 and even prior thereto." 37

The Court finds no merit in this contention. As the Solicitor General notes, "Municipal Ordinance No. 4 was passed on May 14, 1955. 38 Hence, it cannot be said that the amendment (under Ordinance No. 12) is being made to apply retroactively (to 1964) since the reckoning period is 1955 (date of enactment). Essentially, Ordinances Nos. 12 and 15 are in the nature of curative measures intended to facilitate and enhance the collection of revenues the originally act, Ordinance No. 4, had prescribed. 39 Moreover, the act (of non-payment of the tax), had been, since 1955, made punishable, and it cannot be said that Ordinance No. 12 imposes a retroactive penalty. As we have noted, it operates to grant amnesty to operators who had been delinquent between 1955 and 1964. It does not mete out a penalty, much less, a retrospective one. The appellant assails, finally, the power of the municipal council of Pagbilao to tax "public forest land." 40 InGolden Ribbon Lumber Co., Inc. v. City of Butuan 41 we held that local governments' taxing power does not extend to forest products or concessions under Republic Act No. 2264, the Local Autonomy Act then in force. (Republic Act No. 2264 likewise prohibited municipalities from imposing percentage taxes on sales.) First of all, the tax in question is not a tax on property, although the rate thereof is based on the area of fishponds ("P3.00 per hectare" 42). Secondly, fishponds are not forest lands, although we have held them to the agricultural lands. 43 By definition, "forest" is "a large tract of land covered with a natural growth of trees and underbush; a large wood." 44 (Accordingly, even if the challenged taxes were directed on the fishponds, they would not have been taxes on forest products.)

They are, more accurately, privilege taxes on the business of fishpond maintenance. They are not charged against sales, which would have offended the doctrine enshrined by Golden Ribbon Lumber, 45 but rather on occupation, which is allowed under Republic Act No. 2264. 46 They are what have been classified as fixed annual taxes and this is obvious from the ordinances themselves. There is, then, no merit in the last objection. WHEREFORE, the appeal is DISMISSED. Costs against the appellant. Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Cortes, Grio-Aquino and Medialdea, JJ., concur. Melencio-Herrera, and Regalado, J., took no part. Gancayco, J., is on leave.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-28396 December 29, 1967

AGRIPINO DEMAFILES, petitioner, vs. COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF ANTIQUE, in its capacity as Board of Canvassers for the newly created Municipality of Sebaste of the Province of Antique, and BENITO B. GALIDO,respondents. Salonga, Ordoez Sicat and Associates for respondent. Ramon Barrios for respondent Comelec. Jose W. Diokno for petitioner. CASTRO, J.: The new municipality of Sebaste1 in Antique province held its first election of officers in the general elections of November 14, 1967, with the petitioner Agripino Demafiles and the respondent Benito B. Galido vying for the mayoralty. On November 21 the respondent Galido asked the provincial board, acting as municipal board of canvassers pursuant to section 167 (b) of the Revised Election Code, to disregard, as "obviously manufactured", the election return

from precinct 7 on the ground that the said return shows that 195 voters were registered (of whom 188 voted), when, according to a certificate of the municipal election registrar only 182 had registered in that precinct as of October 30, 1997. At its session on the following day, November 22, the board, over the objection of one member, voted to reject the return from precinct 7 and then proceeded with the canvass of the returns from the other precints. The resulting tally gave Galido 888 votes as against 844 for Demafiles. Accordingly, Galido was proclaimed mayor-elect of the municipality of Sebaste. On November 24 Demafiles wired the Commission on Elections, protesting the board's action of rejection of the return from precinct 7 and the subsequent proclamation of Galido, and challenging the right of two board members, Julito Moscoso and Quirico Escao, to sit, considering that they were reelectionists. Acting on the protest, the COMELEC resolved on November 28, 1967: To annul the canvass and proclamation of the local officials of the new municipality of Sebaste, Antique, which was made by the Provincial Board of Antique; To constitute the Board of Canvassers by appointing the substitutes pursuant to the provisions of Sec. 167 (a) of the Revised Election Code, which shall canvass anew the results of the election for local offices of Sebaste, Antique, in accordance with the Instructions to Boards of Canvassers contained in the Resolution of the Commission No. RR-544, particularly No. 5-K thereof, and thereafter to proclaim the winning candidates for local offices of said municipality.

In turn, Galido asked for a reconsideration on the ground that the two members of the provincial board who were reelectionists were disqualified from sitting only when the board was acting as a provincial, but not as a municipal, board of canvassers and that the COMELEC resolution annulling the canvass and proclamation of officials was issued without giving him an opportunity to be heard. In its resolution of December 4, 1967 the respondent Commission reconsidered its previous order and held "that the canvass and proclamation already made of the local officials . . . stands". Failing to secure a reconsideration of this latter resolution, Demafiles filed the present petition for mandamus andcertiorari to set aside the aforesaid resolution of the COMELEC, to annull the proclamation of Galido, and to secure an order directing the COMELEC to appoint substitute members of the provincial board and to order a new canvass of the returns, including that from precinct 7. The three principal issues tendered for resolution in this case are: (1) whether the respondent board of canvassers was within the periphery of its power in rejecting the return from precinct 7 on the strength of an election registrar's certificate that a less number of voters than that shown in the return had registered; (2) whether the provincial board members, who were candidates for reelection, were disqualified from sitting in the board in its capacity as a municipal board of canvassers; and (3) whether the Commission on Elections can order the board of canvassers to count a return from a given precinct. These issues, together with the arguments of the parties, will be discussed seriatim, but we must first proceed to

dispose of the preliminary question raised by the respondent Galido, namely, that this case is moot because he had taken his oath and assumed office on November 22, pursuant to Republic Act 4870. Obviously, the frame of reference is section 2 of the statute which reads: The first mayor, vice-mayor and councilors of the Municipality of Sebaste shall be elected in the next general elections for local officials and shall have qualified [sic]. In our view, the last portion of the provision "and shall have qualified" is devoid of any meaning, is unmitigated jargon in or out of context, and does not warrant the respondent's reading that the term of office of the first municipal officials of Sebaste begins immediately after their proclamation. It is quite probable that that is what the legislature meant. But here is a clear case of a failure to express a meaning, and a becoming sense of judicial modesty forbids the courts from assuming and, consequently, from supplying.itc-alf "If there is no meaning in it," said the King in Alice in Wonderland, "that saves a world of trouble, you know, as we needn't try to find any." Frankfurter, who himself was fond of quoting this passage, admonishes that "a judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration."2 Accordingly, we have to go by the general rule that the term of office of municipal officials shall begin on the first day of January following their election, 3 and so the assumption of office by the respondent Galido in no way

affected the basic issues in this case, which we need not reach and resolve. First, a canvassing board performs a purely ministerial function that of compiling and adding the results they appear in the returns, transmitted to it. This is the teaching in Nacionalista Party v. Commission on Elections :4 "the canvassers are to be satisfied of the, genuineness of the returns namely, that the papers presented to them are not forged and spurious, that they are returns, and that they are signed by the proper officers. When so satisfied, . . . they may not reject any returns because of informalities in them or because of illegal and fraudulent practices in the elections."5 Thus, they cannot pass upon the validity of an election return, much less exclude it from the canvass on the ground that the votes cast in the precinct from whence it came are illegal.6 But the exclusion of the return in this case is sought to be justified on the ground that it is "obviously manufactured" because, contrary to the statement therein that there were 195 registered voters, of whom 188 voted, the certificate of the local election registrar states that only 182 voters had registered on October 30, 1967.Lagumbay v. Commission on Elections7 is cited in support of this view. In Lagumbay the returns were palpably false as it was indeed statistically improbable that "all the eight candidates of one party garnered all the votes, each of them receiving exactly the same number, whereas all the eight candidates of the other party got preciselynothing.itc-alf" In other words, the aid of evidence aliunde was not needed, as "the fraud [being] so palpable from the return itself (res ipsa loquitur the thing speaks for itself), there is no reason to accept it and give it prima facievalue.

On the other hand, the return in this case shows nothing on its face from which the canvassers might conclude that it does not speak the truth. It is only when it is compared in the certificate of the election registrar that a discrepancy appears as to the number of registered voters. The return therefore is by no means "obviously manufactured" so as to justify its exclusion. This is not to belittle the respondent's claim that more people than registered voters were allowed to vote in precinct 7. Perhaps that is true, although the petitioner claims that after October 30, 1967 eight more voters were allowed to register (making a total of 190, voters), and on the day of the election 5 voters erroneously assigned to precinct 6 were allowed to vote in precinct 7 because that was where they were really assigned. The point is simply that this question should be threshed out in an election contest.itc-alf Lagumbay itself explicitly says Of course we agree that fraud in the holding of the election should be handled and finally settled by the corresponding courts or electoral tribunals. That is the general rule, where testimonial or documentary evidence is necessary. . . . Consequently, the canvass made and proclamation had should be annulled.8 Second, the canvass and proclamation should be annulled because two of the four members of the board of canvassers were disqualified from sitting in it, they being candidates for reelection. As this Court held in Salcedo v. Commission on Elections:9

And added reason for the nullification of the actuation of the Provincial Board of Oriental Mindoro is the fact that its members were disqualified to act it appearing that they were all candidates for reelection. This is clear from Section 28 of the Revised Election Code which provides that any member of the provincial board who is a candidate for an elective office shall be incompetent to act in said board in the performance of its duties in connection with the election. Branding the above statement as obiter dictum, the respondent Galido argues that reelectionist members of the provincial board are disqualified under section 28 only when the board acts as a provincial board of canvassers, to prevent them fro canvassing their own votes, and not when they sit as a municipal board of canvassers. With respect to the canvass and proclamation made the provincial board of Oriental Mindoro, three issues raised in Salcedo, in resolving which this Court held (1) that a provincial board cannot act as a municipal board of canvassers where a municipal council has been formed; (2) that provincial board members who are candidates for reelection are disqualified to sit in the board and (3) that a board of canvassers which excludes from canvass the return from a precinct acts "in contravention of law." At any rate the language of section 28 is all-inclusive Thus: Any member of a provincial board or of a municipal council who is a candidate for office in any election, shall be incompetent to act on said body in the performance of the duties the of relative to said election . . . .

The statute draws no distinction between the provincial board acting as a provincial board of canvassers and the same board acting as a municipal canvassing body new municipalities, and so we make none, in line with the maxim ubi lex non distinguit, nec nos distinguere debemos . Third, it is now settled doctrine that the COMELEC has the power to annul an illegal canvass and an illegal proclamation as when they are based on incomplete returns, and order a new canvass to be made by counting the returns wrongfully excluded.10 If it has power to direct that certain copies of election returns be used in preference to other copies of the same returns,11 there is no reason why it cannot direct canvassing bodies to count all turns which are otherwise regular.itc-alf Indeed, it is its duty to do so, failing which it may be compelled by mandamus. As earlier pointed out, it is the ministerial function a board of canvassers to count the results as they appeal in the returns which on their face do not reveal any irregularities or falsities. ACCORDINGLY, the resolutions dated December 4 and 8, 1967 of the Commission on Elections are set aside, and the canvass of returns made and the subsequent proclamation of the respondent Benito B. Galido are annulled. The respondent Commission on Elections is hereby directed. (1) to appoint new members of the board of canvassers in substitution of Julito Moscoso and Quirico Escao, and (2) immediately thereafter to order the board of canvassers as reconstituted to convene, canvass all votes including those appearing in the return from precinct 7, and, in accordance with the results of such canvass, proclaim the winning candidates. Costs against the private respondent Galido.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Bengzon, J.P., Sanchez and Angeles, JJ., concur. Dizon, Zaldivar and Fernando, JJ., took no part.

People of the Philippines vs. NazarioG.R. No. L-44143 August 31, 1988 Facts: In the years 1964, 1965 and 1966, in t h e M u n i c i p a l i t y o f P a g b i l a o , Q u e z o n , Philippine s, Nazario, being then the owner and operator of a fishpond, refused and failed to pay the municipal taxes required of him as fishpond op erator as provided for under Ordinance No. 4, series of 1955, as amended, in spite of repeated demands made upon him by the Municipal Treasurer of Pagbilao, Quezon, to pay the same.The ordinances in question were Ordinance No. 4, series of 1955, Ordinance No. 15, seriesof 1965, and Ordinance No. 12, series of 1966, of the Municipal Council of Pagbilao.Insofar as pertinent to this appeal, the salient portions thereof are hereinbelow quoted:S e c t i o n 1 . A n y o w n e r o r m a n a g e r o f f i s h p o n d s i n p l a c e s w i t h i n t h e territorial limits of Pagbilao, Quezon, shall pay a municipal tax in theamount of P3.00 per hectare of fishpond on part thereof per annum. 5 xxx xxx xxxSec. l (a). For the convenience of those who have or owners or managers of fishponds within the territorial limits of this mun icipality, the date of payment of municipal tax relative thereto, shall begin after the lapse of three(3) years

starting from the date said fishpond is approved by the Bureau of Fisheries. 6 xxx xxx xxxS e c t i o n 1 . A n y o w n e r o r m a n a g e r o f f i s h p o n d s i n p l a c e s w i t h i n t h e territorial limits of Pagbilao shall pay a municipal tax in the amount of P3.00 per hectare or any fraction thereof per annum beginning and takingeffect from the year 1964, if the fishpond started operating before the year 1964. 7 The petitioner contended that being a mere lessee of the fishpond, he was not covered sincethe said ordinances speak of "owner or manager." He likewise maintained that they arevague insofar as they reckon the date of payment: Whereas Ordinance No. 4 provides that parties shall commence payment "after the lapse of three (3) years starting from the datesaid fishpond is approved by the Bureau of Fisheries." 9 Ordinance No. 12 states thatliability for the tax accrues "beginning and taking effect from the year 1964 if the fishpondstarted operating before the year 1964."Also, Nazario contended that Amendment No. 12 passed on September 19, 1966, clearly provides that the payment of the imposed tax shall "beginning and taking effect from the

Republic of the Philippines SUPREME COURT Manila EN BANC

The trouble arose when in 1992, flush with its tremendous success in several cities, PAGCOR decided to expand its operations to Cagayan de Oro City. To this end, it leased a portion of a building belonging to Pryce Properties Corporation, Inc., one of the herein private respondents, renovated and equipped the same, and prepared to inaugurate its casino there during the Christmas season. The reaction of the Sangguniang Panlungsod of Cagayan de Oro City was swift and hostile. On December 7, 1992, it enacted Ordinance No. 3353 reading as follows: ORDINANCE NO. 3353 AN ORDINANCE PROHIBITING THE ISSUANCE OF BUSINESS PERMIT AND CANCELLING EXISTING BUSINESS PERMIT TO ANY ESTABLISHMENT FOR THE USING AND ALLOWING TO BE USED ITS PREMISES OR PORTION THEREOF FOR THE OPERATION OF CASINO. BE IT ORDAINED by the Sangguniang Panlungsod of the City of Cagayan de Oro, in session assembled that: Sec. 1. That pursuant to the policy of the city banning the operation of casino within its territorial jurisdiction, no business permit shall be issued to any person, partnership or corporation for the operation of casino within the city limits. Sec. 2. That it shall be a violation of existing business permit by any persons, partnership or corporation to use its business establishment or

G.R. No. 111097 July 20, 1994 MAYOR PABLO P. MAGTAJAS & THE CITY OF CAGAYAN DE ORO, petitioners, vs. PRYCE PROPERTIES CORPORATION, INC. & PHILIPPINE AMUSEMENT AND GAMING CORPORATION, respondents. Aquilino G. Pimentel, Jr. and Associates for petitioners. R.R. Torralba & Associates for private respondent.

CRUZ, J.: There was instant opposition when PAGCOR announced the opening of a casino in Cagayan de Oro City. Civic organizations angrily denounced the project. The religious elements echoed the objection and so did the women's groups and the youth. Demonstrations were led by the mayor and the city legislators. The media trumpeted the protest, describing the casino as an affront to the welfare of the city.

portion thereof, or allow the use thereof by others for casino operation and other gambling activities. Sec. 3. PENALTIES. Any violation of such existing business permit as defined in the preceding section shall suffer the following penalties, to wit: a) Suspension of the business permit for sixty (60) days for the first offense and a fine of P1,000.00/day b) Suspension of the business permit for Six (6) months for the second offense, and a fine of P3,000.00/day c) Permanent revocation of the business permit and imprisonment of One (1) year, for the third and subsequent offenses. Sec. 4. This Ordinance shall take effect ten (10) days from publication thereof.

Nor was this all. On January 4, 1993, it adopted a sterner Ordinance No. 3375-93 reading as follows: ORDINANCE NO. 3375-93 AN ORDINANCE PROHIBITING THE OPERATION OF CASINO AND PROVIDING PENALTY FOR VIOLATION THEREFOR. WHEREAS, the City Council established a policy as early as 1990 against CASINO under its Resolution No. 2295; WHEREAS, on October 14, 1992, the City Council passed another Resolution No. 2673, reiterating its policy against the establishment of CASINO; WHEREAS, subsequently, thereafter, it likewise passed Ordinance No. 3353, prohibiting the issuance of Business Permit and to cancel existing Business Permit to any establishment for the using and allowing to be used its premises or portion thereof for the operation of CASINO; WHEREAS, under Art. 3, section 458, No. (4), sub paragraph VI of the Local Government Code of 1991 (Rep. Act 7160) and under Art. 99, No. (4), Paragraph VI of the implementing rules of the Local Government Code, the City Council as the Legislative Body shall enact measure to suppress any activity inimical to public morals and general welfare of the people and/or regulate or prohibit such activity pertaining to amusement or entertainment in

order to protect social and moral welfare of the community; NOW THEREFORE, BE IT ORDAINED by the City Council in session duly assembled that: Sec. 1. The operation of gambling CASINO in the City of Cagayan de Oro is hereby prohibited. Sec. 2. Any violation of this Ordinance shall be subject to the following penalties: a) Administrative fine of P5,000.00 shall be imposed against the proprietor, partnership or corporation undertaking the operation, conduct, maintenance of gambling CASINO in the City and closure thereof; b) Imprisonment of not less than six (6) months nor more than one (1) year or a fine in the amount of P5,000.00 or both at the discretion of the court against the manager, supervisor, and/or any person responsible in the establishment, conduct and maintenance of gambling CASINO. Sec. 3. This Ordinance shall take effect ten (10) days after its publication in a local newspaper of general circulation. Pryce assailed the ordinances before the Court of Appeals, where it was joined by PAGCOR as intervenor and supplemental petitioner. Their challenge succeeded. On March

31, 1993, the Court of Appeals declared the ordinances invalid and issued the writ prayed for to prohibit their enforcement. 1 Reconsideration of this decision was denied on July 13, 1993.
2

Cagayan de Oro City and its mayor are now before us in this petition for review under Rule 45 of the Rules of Court. 3 They aver that the respondent Court of Appeals erred in holding that: 1. Under existing laws, the Sangguniang Panlungsod of the City of Cagayan de Oro does not have the power and authority to prohibit the establishment and operation of a PAGCOR gambling casino within the City's territorial limits. 2. The phrase "gambling and other prohibited games of chance" found in Sec. 458, par. (a), sub-par. (1) (v) of R.A. 7160 could only mean "illegal gambling." 3. The questioned Ordinances in effect annul P.D. 1869 and are therefore invalid on that point. 4. The questioned Ordinances are discriminatory to casino and partial to cockfighting and are therefore invalid on that point. 5. The questioned Ordinances are not reasonable, not consonant with the general powers and purposes of the instrumentality concerned and inconsistent with the laws or policy of the State.

6. It had no option but to follow the ruling in the case of Basco, et al. v. PAGCOR, G.R. No. 91649, May 14, 1991, 197 SCRA 53 in disposing of the issues presented in this present case. PAGCOR is a corporation created directly by P.D. 1869 to help centralize and regulate all games of chance, including casinos on land and sea within the territorial jurisdiction of the Philippines. In Basco v. Philippine Amusements and Gaming Corporation, 4 this Court sustained the constitutionality of the decree and even cited the benefits of the entity to the national economy as the third highest revenue-earner in the government, next only to the BIR and the Bureau of Customs. Cagayan de Oro City, like other local political subdivisions, is empowered to enact ordinances for the purposes indicated in the Local Government Code. It is expressly vested with the police power under what is known as the General Welfare Clause now embodied in Section 16 as follows: Sec. 16. General Welfare. Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological

capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. In addition, Section 458 of the said Code specifically declares that: Sec. 458. Powers, Duties, Functions and Compensation. (a) The Sangguniang Panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall: (1) Approve ordinances and pass resolutions necessary for an efficient and effective city government, and in this connection, shall: xxx xxx xxx (v) Enact ordinances intended to prevent, suppress and impose appropriate penalties for habitual drunkenness in public places, vagrancy,

mendicancy, prostitution, establishment and maintenance of houses of ill repute, gambling and other prohibited games of chance, fraudulent devices and ways to obtain money or property, drug addiction, maintenance of drug dens, drug pushing, juvenile delinquency, the printing, distribution or exhibition of obscene or pornographic materials or publications, and such other activities inimical to the welfare and morals of the inhabitants of the city; This section also authorizes the local government units to regulate properties and businesses within their territorial limits in the interest of the general welfare. 5

The petitioners argue that by virtue of these provisions, the Sangguniang Panlungsod may prohibit the operation of casinos because they involve games of chance, which are detrimental to the people. Gambling is not allowed by general law and even by the Constitution itself. The legislative power conferred upon local government units may be exercised over all kinds of gambling and not only over "illegal gambling" as the respondents erroneously argue. Even if the operation of casinos may have been permitted under P.D. 1869, the government of Cagayan de Oro City has the authority to prohibit them within its territory pursuant to the authority entrusted to it by the Local Government Code. It is submitted that this interpretation is consonant with the policy of local autonomy as mandated in Article II, Section 25, and Article X of the Constitution, as well as various other provisions therein seeking to strengthen the character of the nation. In giving the local government units the power to prevent or suppress gambling and other social problems, the Local Government Code has recognized the competence of such communities to determine and adopt the measures best expected to promote the general welfare of their inhabitants in line with the policies of the State. The petitioners also stress that when the Code expressly authorized the local government units to prevent and suppress gambling and other prohibited games of chance, like craps, baccarat, blackjack and roulette, it meant all forms of gambling without distinction. Ubi lex non distinguit, nec nos distinguere debemos. 6 Otherwise, it would have expressly excluded from the scope of their power casinos and other forms of gambling authorized by special law, as it could have easily done. The fact that it did not do so simply means that the local government units are permitted to prohibit all kinds of gambling within their territories, including the operation of casinos.

The adoption of the Local Government Code, it is pointed out, had the effect of modifying the charter of the PAGCOR. The Code is not only a later enactment than P.D. 1869 and so is deemed to prevail in case of inconsistencies between them. More than this, the powers of the PAGCOR under the decree are expressly discontinued by the Code insofar as they do not conform to its philosophy and provisions, pursuant to Par. (f) of its repealing clause reading as follows: (f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this Code are hereby repealed or modified accordingly. It is also maintained that assuming there is doubt regarding the effect of the Local Government Code on P.D. 1869, the doubt must be resolved in favor of the petitioners, in accordance with the direction in the Code calling for its liberal interpretation in favor of the local government units. Section 5 of the Code specifically provides: Sec. 5. Rules of Interpretation. In the interpretation of the provisions of this Code, the following rules shall apply: (a) Any provision on a power of a local government unit shall be liberally interpreted in its favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower local government unit. Any fair and reasonable doubt as to the existence of the power shall be interpreted in favor of the local government unit concerned;

xxx xxx xxx (c) The general welfare provisions in this Code shall be liberally interpreted to give more powers to local government units in accelerating economic development and upgrading the quality of life for the people in the community; . . . (Emphasis supplied.) Finally, the petitioners also attack gambling as intrinsically harmful and cite various provisions of the Constitution and several decisions of this Court expressive of the general and official disapprobation of the vice. They invoke the State policies on the family and the proper upbringing of the youth and, as might be expected, call attention to the old case of U.S. v. Salaveria, 7 which sustained a municipal ordinance prohibiting the playing of panguingue. The petitioners decry the immorality of gambling. They also impugn the wisdom of P.D. 1869 (which they describe as "a martial law instrument") in creating PAGCOR and authorizing it to operate casinos "on land and sea within the territorial jurisdiction of the Philippines." This is the opportune time to stress an important point. The morality of gambling is not a justiciable issue. Gambling is not illegal per se. While it is generally considered inimical to the interests of the people, there is nothing in the Constitution categorically proscribing or penalizing gambling or, for that matter, even mentioning it at all. It is left to Congress to deal with the activity as it sees fit. In the exercise of its own discretion, the legislature may prohibit gambling altogether or allow it without limitation or it may prohibit some forms of gambling and allow others for whatever reasons it may consider sufficient. Thus, it has prohibited jueteng and monte but permits lotteries, cockfighting and horse-racing. In making

such choices, Congress has consulted its own wisdom, which this Court has no authority to review, much less reverse. Well has it been said that courts do not sit to resolve the merits of conflicting theories. 8 That is the prerogative of the political departments. It is settled that questions regarding the wisdom, morality, or practicibility of statutes are not addressed to the judiciary but may be resolved only by the legislative and executive departments, to which the function belongs in our scheme of government. That function is exclusive. Whichever way these branches decide, they are answerable only to their own conscience and the constituents who will ultimately judge their acts, and not to the courts of justice. The only question we can and shall resolve in this petition is the validity of Ordinance No. 3355 and Ordinance No. 3375-93 as enacted by the Sangguniang Panlungsod of Cagayan de Oro City. And we shall do so only by the criteria laid down by law and not by our own convictions on the propriety of gambling. The tests of a valid ordinance are well established. A long line of decisions 9 has held that to be valid, an ordinance must conform to the following substantive requirements: 1) It must not contravene the constitution or any statute. 2) It must not be unfair or oppressive. 3) It must not be partial or discriminatory. 4) It must not prohibit but may regulate trade. 5) It must be general and consistent with public policy.

6) It must not be unreasonable. We begin by observing that under Sec. 458 of the Local Government Code, local government units are authorized to prevent or suppress, among others, "gambling and other prohibited games of chance." Obviously, this provision excludes games of chance which are not prohibited but are in fact permitted by law. The petitioners are less than accurate in claiming that the Code could have excluded such games of chance but did not. In fact it does. The language of the section is clear and unmistakable. Under the rule of noscitur a sociis, a word or phrase should be interpreted in relation to, or given the same meaning of, words with which it is associated. Accordingly, we conclude that since the word "gambling" is associated with "and other prohibited games of chance," the word should be read as referring to only illegal gambling which, like the other prohibited games of chance, must be prevented or suppressed. We could stop here as this interpretation should settle the problem quite conclusively. But we will not. The vigorous efforts of the petitioners on behalf of the inhabitants of Cagayan de Oro City, and the earnestness of their advocacy, deserve more than short shrift from this Court. The apparent flaw in the ordinances in question is that they contravene P.D. 1869 and the public policy embodied therein insofar as they prevent PAGCOR from exercising the power conferred on it to operate a casino in Cagayan de Oro City. The petitioners have an ingenious answer to this misgiving. They deny that it is the ordinances that have changed P.D. 1869 for an ordinance admittedly cannot prevail against a statute. Their theory is that the change has been made by the Local Government Code itself, which was also enacted by the national lawmaking authority. In their view, the decree has been, not really repealed by the Code, but merely "modified

pro tanto" in the sense that PAGCOR cannot now operate a casino over the objection of the local government unit concerned. This modification of P.D. 1869 by the Local Government Code is permissible because one law can change or repeal another law. It seems to us that the petitioners are playing with words. While insisting that the decree has only been "modified pro tanto," they are actually arguing that it is already dead, repealed and useless for all intents and purposes because the Code has shorn PAGCOR of all power to centralize and regulate casinos. Strictly speaking, its operations may now be not only prohibited by the local government unit; in fact, the prohibition is not only discretionary but mandated by Section 458 of the Code if the word "shall" as used therein is to be given its accepted meaning. Local government units have now no choice but to prevent and suppress gambling, which in the petitioners' view includes both legal and illegal gambling. Under this construction, PAGCOR will have no more games of chance to regulate or centralize as they must all be prohibited by the local government units pursuant to the mandatory duty imposed upon them by the Code. In this situation, PAGCOR cannot continue to exist except only as a toothless tiger or a white elephant and will no longer be able to exercise its powers as a prime source of government revenue through the operation of casinos. It is noteworthy that the petitioners have cited only Par. (f) of the repealing clause, conveniently discarding the rest of the provision which painstakingly mentions the specific laws or the parts thereof which are repealed (or modified) by the Code. Significantly, P.D. 1869 is not one of them. A reading of the entire repealing clause, which is reproduced below, will disclose the omission:

Sec. 534. Repealing Clause. (a) Batas Pambansa Blg. 337, otherwise known as the "Local Government Code," Executive Order No. 112 (1987), and Executive Order No. 319 (1988) are hereby repealed. (b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders, instructions, memoranda and issuances related to or concerning the barangay are hereby repealed. (c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding hospital fund; Section 3, a (3) and b (2) of Republic Act. No. 5447 regarding the Special Education Fund; Presidential Decree No. 144 as amended by Presidential Decree Nos. 559 and 1741; Presidential Decree No. 231 as amended; Presidential Decree No. 436 as amended by Presidential Decree No. 558; and Presidential Decree Nos. 381, 436, 464, 477, 526, 632, 752, and 1136 are hereby repealed and rendered of no force and effect. (d) Presidential Decree No. 1594 is hereby repealed insofar as it governs locally-funded projects. (e) The following provisions are hereby repealed or amended insofar as they are inconsistent with the provisions of this Code: Sections 2, 16, and 29 of Presidential Decree No. 704; Sections 12 of Presidential Decree No. 87, as amended; Sections 52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of Presidential Decree No. 463, as amended; and Section 16

of Presidential Decree No. 972, as amended, and (f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this Code are hereby repealed or modified accordingly. Furthermore, it is a familiar rule that implied repeals are not lightly presumed in the absence of a clear and unmistakable showing of such intention. In Lichauco & Co. v. Apostol, 10 this Court explained: The cases relating to the subject of repeal by implication all proceed on the assumption that if the act of later date clearly reveals an intention on the part of the lawmaking power to abrogate the prior law, this intention must be given effect; but there must always be a sufficient revelation of this intention, and it has become an unbending rule of statutory construction that the intention to repeal a former law will not be imputed to the Legislature when it appears that the two statutes, or provisions, with reference to which the question arises bear to each other the relation of general to special. There is no sufficient indication of an implied repeal of P.D. 1869. On the contrary, as the private respondent points out, PAGCOR is mentioned as the source of funding in two later enactments of Congress, to wit, R.A. 7309, creating a Board of Claims under the Department of Justice for the benefit of victims of unjust punishment or detention or of violent crimes, and R.A. 7648, providing for measures for the solution of the

power crisis. PAGCOR revenues are tapped by these two statutes. This would show that the PAGCOR charter has not been repealed by the Local Government Code but has in fact been improved as it were to make the entity more responsive to the fiscal problems of the government. It is a canon of legal hermeneutics that instead of pitting one statute against another in an inevitably destructive confrontation, courts must exert every effort to reconcile them, remembering that both laws deserve a becoming respect as the handiwork of a coordinate branch of the government. On the assumption of a conflict between P.D. 1869 and the Code, the proper action is not to uphold one and annul the other but to give effect to both by harmonizing them if possible. This is possible in the case before us. The proper resolution of the problem at hand is to hold that under the Local Government Code, local government units may (and indeed must) prevent and suppress all kinds of gambling within their territories except only those allowed by statutes like P.D. 1869. The exception reserved in such laws must be read into the Code, to make both the Code and such laws equally effective and mutually complementary. This approach would also affirm that there are indeed two kinds of gambling, to wit, the illegal and those authorized by law. Legalized gambling is not a modern concept; it is probably as old as illegal gambling, if not indeed more so. The petitioners' suggestion that the Code authorizes them to prohibit all kinds of gambling would erase the distinction between these two forms of gambling without a clear indication that this is the will of the legislature. Plausibly, following this theory, the City of Manila could, by mere ordinance, prohibit the Philippine Charity Sweepstakes Office from conducting a lottery as authorized by R.A. 1169 and B.P. 42 or stop the races at the San Lazaro Hippodrome as authorized by R.A. 309 and R.A. 983.

In light of all the above considerations, we see no way of arriving at the conclusion urged on us by the petitioners that the ordinances in question are valid. On the contrary, we find that the ordinances violate P.D. 1869, which has the character and force of a statute, as well as the public policy expressed in the decree allowing the playing of certain games of chance despite the prohibition of gambling in general. The rationale of the requirement that the ordinances should not contravene a statute is obvious. Municipal governments are only agents of the national government. Local councils exercise only delegated legislative powers conferred on them by Congress as the national lawmaking body. The delegate cannot be superior to the principal or exercise powers higher than those of the latter. It is a heresy to suggest that the local government units can undo the acts of Congress, from which they have derived their power in the first place, and negate by mere ordinance the mandate of the statute. Municipal corporations owe their origin to, and derive their powers and rights wholly from the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. As it may destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the legislature might, by a single act, and if we can suppose it capable of so great a folly and so great a wrong, sweep from existence all of the municipal corporations in the State, and the corporation could not prevent it. We know of no limitation on the right so far as to the corporation themselves are concerned. They are, so to phrase it, the mere tenants at will of the legislature. 11

This basic relationship between the national legislature and the local government units has not been enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy. Without meaning to detract from that policy, we here confirm that Congress retains control of the local government units although in significantly reduced degree now than under our previous Constitutions. The power to create still includes the power to destroy. The power to grant still includes the power to withhold or recall. True, there are certain notable innovations in the Constitution, like the direct conferment on the local government units of the power to tax, 12 which cannot now be withdrawn by mere statute. By and large, however, the national legislature is still the principal of the local government units, which cannot defy its will or modify or violate it. The Court understands and admires the concern of the petitioners for the welfare of their constituents and their apprehensions that the welfare of Cagayan de Oro City will be endangered by the opening of the casino. We share the view that "the hope of large or easy gain, obtained without special effort, turns the head of the workman" 13 and that "habitual gambling is a cause of laziness and ruin." 14 In People v. Gorostiza, 15 we declared: "The social scourge of gambling must be stamped out. The laws against gambling must be enforced to the limit." George Washington called gambling "the child of avarice, the brother of iniquity and the father of mischief." Nevertheless, we must recognize the power of the legislature to decide, in its own wisdom, to legalize certain forms of gambling, as was done in P.D. 1869 and impliedly affirmed in the Local Government Code. That decision can be revoked by this Court only if it contravenes the Constitution as the touchstone of all official acts. We do not find such contravention here. We hold that the power of PAGCOR to centralize and regulate all games of chance, including casinos on land and sea within

the territorial jurisdiction of the Philippines, remains unimpaired. P.D. 1869 has not been modified by the Local Government Code, which empowers the local government units to prevent or suppress only those forms of gambling prohibited by law. Casino gambling is authorized by P.D. 1869. This decree has the status of a statute that cannot be amended or nullified by a mere ordinance. Hence, it was not competent for the Sangguniang Panlungsod of Cagayan de Oro City to enact Ordinance No. 3353 prohibiting the use of buildings for the operation of a casino and Ordinance No. 3375-93 prohibiting the operation of casinos. For all their praiseworthy motives, these ordinances are contrary to P.D. 1869 and the public policy announced therein and are therefore ultra vires and void. WHEREFORE, the petition is DENIED and the challenged decision of the respondent Court of Appeals is AFFIRMED, with costs against the petitioners. It is so ordered. Narvasa, C.J., Feliciano, Bidin, Regalado, Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur.

I concur with the majority holding that the city ordinances in question cannot modify much less repeal PAGCOR's general authority to establish and maintain gambling casinos anywhere in the Philippines under Presidential Decree No. 1869. In Basco v. Philippine Amusement and Gaming Corporation (PAGCOR), 197 SCRA 52, I stated in a separate opinion that: . . . I agree with the decision insofar as it holds that the prohibition, control, and regulation of the entire activity known as gambling properly pertain to "state policy". It is, therefore, the political departments of government, namely, the legislative and the executive that should decide on what government should do in the entire area of gambling, and assume full responsibility to the people for such policy." (Emphasis supplied) However, despite the legality of the opening and operation of a casino in Cagayan de Oro City by respondent PAGCOR, I wish to reiterate my view that gambling in any form runs counter to the government's own efforts to re-establish and resurrect the Filipino moral character which is generally perceived to be in a state of continuing erosion. It is in the light of this alarming perspective that I call upon government to carefully weigh the advantages and disadvantages of setting up more gambling facilities in the country.

Separate Opinions

PADILLA, J., concurring:

That the PAGCOR contributes greatly to the coffers of the government is not enough reason for setting up more gambling casinos because, undoubtedly, this will not help improve, but will cause a further deterioration in the Filipino moral character.

It is worth remembering in this regard that, 1) what is legal is not always moral and 2) the ends do not always justify the means. As in Basco, I can easily visualize prostitution at par with gambling. And yet, legalization of the former will not render it any less reprehensible even if substantial revenue for the government can be realized from it. The same is true of gambling. In the present case, it is my considered view that the national government (through PAGCOR) should re-examine and reevaluate its decision of imposing the gambling casino on the residents of Cagayan de Oro City; for it is abundantly clear that public opinion in the city is very much against it, and again the question must be seriously deliberated: will the prospects of revenue to be realized from the casino outweigh the further destruction of the Filipino sense of values?

DAVIDE, JR., J., concurring: While I concur in part with the majority, I wish, however, to express my views on certain aspects of this case. I. It must at once be noted that private respondent Pryce Properties Corporation (PRYCE) directly filed with the Court of Appeals its so-called petition for prohibition, thereby invoking the said court's original jurisdiction to issue writs of prohibition under Section 9(1) of B.P. Blg. 129. As I see it, however, the principal cause of action therein is one for declaratory relief: to declare null and unconstitutional for, inter alia, having been enacted without or in excess of jurisdiction, for impairing the

obligation of contracts, and for being inconsistent with public policy the challenged ordinances enacted by the Sangguniang Panglungsod of the City of Cagayan de Oro. The intervention therein of public respondent Philippine Amusement and Gaming Corporation (PAGCOR) further underscores the "declaratory relief" nature of the action. PAGCOR assails the ordinances for being contrary to the nonimpairment and equal protection clauses of the Constitution, violative of the Local Government Code, and against the State's national policy declared in P.D. No. 1869. Accordingly, the Court of Appeals does not have jurisdiction over the nature of the action. Even assuming arguendo that the case is one for prohibition, then, under this Court's established policy relative to the hierarchy of courts, the petition should have been filed with the Regional Trial Court of Cagayan de Oro City. I find no special or compelling reason why it was not filed with the said court. I do not wish to entertain the thought that PRYCE doubted a favorable verdict therefrom, in which case the filing of the petition with the Court of Appeals may have been impelled by tactical considerations. A dismissal of the petition by the Court of Appeals would have been in order pursuant to our decisions in People vs. Cuaresma (172 SCRA 415, [1989]) and Defensor-Santiago vs. Vasquez (217 SCRA 633 [1993]). In Cuaresma, this Court stated: A last word. This court's original jurisdiction to issue writs of certiorari (as well as prohibition, mandamus, quo warranto, habeas corpus and injunction) is not exclusive. It is shared by this Court with Regional Trial Courts (formerly Courts of First Instance), which may issue the writ, enforceable in any part of their respective regions. It is also shared by this court, and by the Regional Trial Court, with the Court of Appeals (formerly, Intermediate Appellate Court), although prior to the effectivity of Batas

Pambansa Bilang 129 on August 14, 1981, the latter's competence to issue the extraordinary writs was restricted by those "in aid of its appellate jurisdiction." This concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of the court to which application therefor will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the revenue of appeals, and should also serve as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. It is a policy that is necessary to prevent inordinate demands upon the Court's time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further overcrowding of the Court's docket. Indeed, the removal of the restriction of the jurisdiction of the Court of Appeals in this regard, supra resulting from the deletion of the qualifying phrase, "in aid of its appellate jurisdiction" was evidently intended precisely to relieve this Court pro tanto of the burden of dealing with applications for extraordinary writs which, but

for the expansion of the Appellate Court's corresponding jurisdiction, would have had to be filed with it. (citations omitted) And in Vasquez, this Court said: One final observation. We discern in the proceedings in this case a propensity on the part of petitioner, and, for that matter, the same may be said of a number of litigants who initiate recourses before us, to disregard the hierarchy of courts in our judicial system by seeking relief directly from this Court despite the fact that the same is available in the lower courts in the exercise of their original or concurrent jurisdiction, or is even mandated by law to be sought therein. This practice must be stopped, not only because of the imposition upon the previous time of this Court but also because of the inevitable and resultant delay, intended or otherwise, in the adjudication of the case which often has to be remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to resolve the issues since this Court is not a trier of facts. We, therefore, reiterate the judicial policy that this Court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of our primary jurisdiction. II.

The challenged ordinances are (a) Ordinance No. 3353 entitled, "An Ordinance Prohibiting the Issuance of Business Permit and Canceling Existing Business Permit To Any Establishment for the Using and Allowing to be Used Its Premises or Portion Thereof for the Operation of Casino," and (b) Ordinance No. 3375-93 entitled, "An Ordinance Prohibiting the Operation of Casino and Providing Penalty for Violation Therefor." They were enacted to implement Resolution No. 2295 entitled, "Resolution Declaring As a Matter of Policy to Prohibit and/or Not to Allow the Establishment of the Gambling Casino in the City of Cagayan de Oro," which was promulgated on 19 November 1990 nearly two years before PRYCE and PAGCOR entered into a contract of lease under which the latter leased a portion of the former's Pryce Plaza Hotel for the operation of a gambling casino which resolution was vigorously reiterated in Resolution No. 2673 of 19 October 1992. The challenged ordinances were enacted pursuant to the Sangguniang Panglungsod's express powers conferred by Section 458, paragraph (a), subparagraphs (1)-(v), (3)-(ii), and (4)-(i), (iv), and (vii), Local Government Code, and pursuant to its implied power under Section 16 thereof (the general welfare clause) which reads: Sec. 16. General Welfare. Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture,

promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. The issue that necessarily arises is whether in granting local governments (such as the City of Cagayan de Oro) the above powers and functions, the Local Government Code has, pro tanto, repealed P.D. No. 1869 insofar as PAGCOR's general authority to establish and maintain gambling casinos anywhere in the Philippines is concerned. I join the majority in holding that the ordinances cannot repeal P.D. No. 1869. III. The nullification by the Court of Appeals of the challenged ordinances as unconstitutional primarily because it is in contravention to P.D. No. 1869 is unwarranted. A contravention of a law is not necessarily a contravention of the constitution. In any case, the ordinances can still stand even if they be conceded as offending P.D. No. 1869. They can be reconciled, which is not impossible to do. So reconciled, the ordinances should be construed as not applying to PAGCOR. IV. From the pleadings, it is obvious that the government and the people of Cagayan de Oro City are, for obvious reasons, strongly against the opening of the gambling casino in their

city. Gambling, even if legalized, would be inimical to the general welfare of the inhabitants of the City, or of any place for that matter. The PAGCOR, as a government-owned corporation, must consider the valid concerns of the people of the City of Cagayan de Oro and should not impose its will upon them in an arbitrary, if not despotic, manner.

wish to reiterate my view that gambling in any form runs counter to the government's own efforts to re-establish and resurrect the Filipino moral character which is generally perceived to be in a state of continuing erosion. It is in the light of this alarming perspective that I call upon government to carefully weigh the advantages and disadvantages of setting up more gambling facilities in the country. That the PAGCOR contributes greatly to the coffers of the government is not enough reason for setting up more gambling casinos because, undoubtedly, this will not help improve, but will cause a further deterioration in the Filipino moral character. It is worth remembering in this regard that, 1) what is legal is not always moral and 2) the ends do not always justify the means. As in Basco, I can easily visualize prostitution at par with gambling. And yet, legalization of the former will not render it any less reprehensible even if substantial revenue for the government can be realized from it. The same is true of gambling. In the present case, it is my considered view that the national government (through PAGCOR) should re-examine and reevaluate its decision of imposing the gambling casino on the residents of Cagayan de Oro City; for it is abundantly clear that public opinion in the city is very much against it, and again the question must be seriously deliberated: will the prospects of revenue to be realized from the casino outweigh the further destruction of the Filipino sense of values? DAVIDE, JR., J., concurring:

# Separate Opinions

PADILLA, J., concurring: I concur with the majority holding that the city ordinances in question cannot modify much less repeal PAGCOR's general authority to establish and maintain gambling casinos anywhere in the Philippines under Presidential Decree No. 1869. In Basco v. Philippine Amusement and Gaming Corporation (PAGCOR), 197 SCRA 52, I stated in a separate opinion that: . . . I agree with the decision insofar as it holds that the prohibition, control, and regulation of the entire activity known as gambling properly pertain to "state policy". It is, therefore, the political departments of government, namely, the legislative and the executive that should decide on what government should do in the entire area of gambling, and assume full responsibility to the people for such policy. (emphasis supplied) However, despite the legality of the opening and operation of a casino in Cagayan de Oro City by respondent PAGCOR, I

While I concur in part with the majority, I wish, however, to express my views on certain aspects of this case. I. It must at once be noted that private respondent Pryce Properties Corporation (PRYCE) directly filed with the Court of Appeals its so-called petition for prohibition, thereby invoking the said court's original jurisdiction to issue writs of prohibition under Section 9(1) of B.P. Blg. 129. As I see it, however, the principal cause of action therein is one for declaratory relief: to declare null and unconstitutional for, inter alia, having been enacted without or in excess of jurisdiction, for impairing the obligation of contracts, and for being inconsistent with public policy the challenged ordinances enacted by the Sangguniang Panglungsod of the City of Cagayan de Oro. The intervention therein of public respondent Philippine Amusement and Gaming Corporation (PAGCOR) further underscores the "declaratory relief" nature of the action. PAGCOR assails the ordinances for being contrary to the nonimpairment and equal protection clauses of the Constitution, violative of the Local Government Code, and against the State's national policy declared in P.D. No. 1869. Accordingly, the Court of Appeals does not have jurisdiction over the nature of the action. Even assuming arguendo that the case is one for prohibition, then, under this Court's established policy relative to the hierarchy of courts, the petition should have been filed with the Regional Trial Court of Cagayan de Oro City. I find no special or compelling reason why it was not filed with the said court. I do not wish to entertain the thought that PRYCE doubted a favorable verdict therefrom, in which case the filing of the petition with the Court of Appeals may have been impelled by tactical considerations. A dismissal of the petition by the Court of Appeals would have been in order pursuant to our decisions in People vs. Cuaresma (172 SCRA 415, [1989])

and Defensor-Santiago vs. Vasquez (217 SCRA 633 [1993]). In Cuaresma, this Court stated: A last word. This court's original jurisdiction to issue writs of certiorari (as well as prohibition, mandamus, quo warranto, habeas corpus and injunction) is not exclusive. It is shared by this Court with Regional Trial Courts (formerly Courts of First Instance), which may issue the writ, enforceable in any part of their respective regions. It is also shared by this court, and by the Regional Trial Court, with the Court of Appeals (formerly, Intermediate Appellate Court), although prior to the effectivity of Batas Pambansa Bilang 129 on August 14, 1981, the latter's competence to issue the extraordinary writs was restricted by those "in aid of its appellate jurisdiction." This concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of the court to which application therefor will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the revenue of appeals, and should also serve as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor,

clearly and specifically set out in the petition. This is established policy. It is a policy that is necessary to prevent inordinate demands upon the Court's time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further overcrowding of the Court's docket. Indeed, the removal of the restriction of the jurisdiction of the Court of Appeals in this regard, supra resulting from the deletion of the qualifying phrase, "in aid of its appellate jurisdiction" was evidently intended precisely to relieve this Court pro tanto of the burden of dealing with applications for extraordinary writs which, but for the expansion of the Appellate Court's corresponding jurisdiction, would have had to be filed with it. (citations omitted) And in Vasquez, this Court said: One final observation. We discern in the proceedings in this case a propensity on the part of petitioner, and, for that matter, the same may be said of a number of litigants who initiate recourses before us, to disregard the hierarchy of courts in our judicial system by seeking relief directly from this Court despite the fact that the same is available in the lower courts in the exercise of their original or concurrent jurisdiction, or is even mandated by law to be sought therein. This practice must be stopped, not only because of the imposition upon the previous time of this Court but also because of the inevitable and resultant delay, intended or otherwise, in the adjudication of the case which often has to be remanded or referred to the

lower court as the proper forum under the rules of procedure, or as better equipped to resolve the issues since this Court is not a trier of facts. We, therefore, reiterate the judicial policy that this Court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of our primary jurisdiction. II. The challenged ordinances are (a) Ordinance No. 3353 entitled, "An Ordinance Prohibiting the Issuance of Business Permit and Canceling Existing Business Permit To Any Establishment for the Using and Allowing to be Used Its Premises or Portion Thereof for the Operation of Casino," and (b) Ordinance No. 3375-93 entitled, "An Ordinance Prohibiting the Operation of Casino and Providing Penalty for Violation Therefor." They were enacted to implement Resolution No. 2295 entitled, "Resolution Declaring As a Matter of Policy to Prohibit and/or Not to Allow the Establishment of the Gambling Casino in the City of Cagayan de Oro," which was promulgated on 19 November 1990 nearly two years before PRYCE and PAGCOR entered into a contract of lease under which the latter leased a portion of the former's Pryce Plaza Hotel for the operation of a gambling casino which resolution was vigorously reiterated in Resolution No. 2673 of 19 October 1992. The challenged ordinances were enacted pursuant to the Sangguniang Panglungsod's express powers conferred by Section 458, paragraph (a), subparagraphs (1)-(v), (3)-(ii), and (4)-(i), (iv), and (vii), Local Government Code, and pursuant to

its implied power under Section 16 thereof (the general welfare clause) which reads: Sec. 16. General Welfare. Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. The issue that necessarily arises is whether in granting local governments (such as the City of Cagayan de Oro) the above powers and functions, the Local Government Code has, pro tanto, repealed P.D. No. 1869 insofar as PAGCOR's general authority to establish and maintain gambling casinos anywhere in the Philippines is concerned. I join the majority in holding that the ordinances cannot repeal P.D. No. 1869. III.

The nullification by the Court of Appeals of the challenged ordinances as unconstitutional primarily because it is in contravention to P.D. No. 1869 is unwarranted. A contravention of a law is not necessarily a contravention of the constitution. In any case, the ordinances can still stand even if they be conceded as offending P.D. No. 1869. They can be reconciled, which is not impossible to do. So reconciled, the ordinances should be construed as not applying to PAGCOR. IV. From the pleadings, it is obvious that the government and the people of Cagayan de Oro City are, for obvious reasons, strongly against the opening of the gambling casino in their city. Gambling, even if legalized, would be inimical to the general welfare of the inhabitants of the City, or of any place for that matter. The PAGCOR, as a government-owned corporation, must consider the valid concerns of the people of the City of Cagayan de Oro and should not impose its will upon them in an arbitrary, if not despotic, manner.
#Footnotes

1 Rollo, pp. 64-94. 2 Ibid., pp. 53-62. 3 Pryce was dropped as private respondent in the resolution of the Court dated June 13, 1994. 4 197 SCRA 53. 5 Sec. 458, [2(vi-xv)]; [3(ii-vii)]; [4(i-ix)], Local Government Code, 1991.

6 Where the law does not distinguish, neither ought we to distinguish. 7 39 Phil. 102. 8 Garcia v. Executive Secretary, 204 SCRA 516, quoting Cooley, Constitutional Limitations, 8th ed., 379-380. 9 Tatel v. Municipality of Virac, 207 SCRA 157; Solicitor General v. Metropolitan Manila Authority, 204 SCRA 837; De la Cruz v. Paras, 123 SCRA 569; U.S. v. Abandan, 24 Phil. 165. 10 44 Phil. 138. 11 Clinton v. Ceder Rapids, etc. Railroad Co., 24 Iowa 455. 12 Art. X, Sec. 5, Constitution. 13 Planiol, Droit Civil, Vol. 2, No. 2210. 14 Ibid. 15 77 Phil. 88.

Gonzales Vs. Comelec Case Digest

Gonzales Vs. Comelec 27 SCRA 835 G.R. L-27833 April 18, 1969

Facts: RA 4880 which took effect on June 17, 1967, prohibiting the too early nomination of candidates and limiting the period of election campaign or partisan political activity was challenged on constitutional grounds. More precisely, the basic liberties of free speech and free press, freedom of assembly and freedom of association are invoked to nullify the act. Petitioner Cabigao was, at the time of the filing the petition, an incumbent councilor in the 4th District of Manila and the Nacionalista Party official candidate for Vice-Mayor of Manila to which he was subsequently elected on November 11, 1967; petitioner Gonzales, on the other hand, is a private individual, a registered voter in the City of Manila and a political leader of his co-petitioner. There was the further allegation that the nomination of a candidate and the fixing of period of election campaign are matters of political expediency and convenience which only political parties can regulate or curtail by and among themselves through selfrestraint or mutual understanding or agreement and that the regulation and limitation of these political matters invoking the police power, in the absence of clear and present danger to the state, would render the constitutional rights of petitioners meaningless and without effect. Senator Lorenzo M. Taada was asked to appear as amicus curiae, and elucidated that Act No. 4880 could indeed be looked upon as a limitation on the preferred rights of speech and press, of assembly and of association. He did justify its enactment however under the clear and present

danger doctrine, there being the substantive evil of elections, whether for national or local officials, being debased and degraded by unrestricted campaigning, excess of partisanship and undue concentration in politics with the loss not only of efficiency in government but of lives as well. The Philippine Bar Association, the Civil Liberties Union, the U.P. Law Center and the U.P. Women Lawyers' Circle were requested to give their opinions. Respondents contend that the act was based on the police power of the state. Issue: Whether or Not RA 4880 unconstitutional. Held: Yes. As held in Cabansag v. Fernandez there are two tests that may supply an acceptable criterion for permissible restriction on freedom of speech. These are the clear and present danger rule and the 'dangerous tendency' rule. The first, means that the evil consequence of the comment or utterance must be extremely serious and the degree of imminence extremely high before the utterance can be punished. The danger to be guarded against is the 'substantive evil' sought to be prevented. It has the advantage of establishing according to the above decision a definite rule in constitutional law. It provides the criterion as to what words may be publicly established. The "dangerous tendency rule" is such that If the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that

some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent. The challenged statute could have been more narrowly drawn and the practices prohibited more precisely delineated to satisfy the constitutional requirements as to a valid limitation under the clear and present danger doctrine. As the author Taada clearly explained, such provisions were deemed by the legislative body to be part and parcel of the necessary and appropriate response not merely to a clear and present danger but to the actual existence of a grave and substantive evil of excessive partisanship, dishonesty and corruption as well as violence that of late has invariably marred election campaigns and partisan political activities in this country. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for redress of grievances. As in the case of freedom of expression, this right is not to be limited, much less denied, except on a showing of a

clear and present danger of a substantive evil that Congress has a right to prevent. The prohibition of any speeches, announcements or commentaries, or the holding of interviews for or against the election of any party or candidate for public office and the prohibition of the publication or distribution of campaign literature or materials, against the solicitation of votes whether directly or indirectly, or the undertaking of any campaign literature or propaganda for or against any candidate or party is repugnant to a constitutional command.
Republic of the Philippines SUPREME COURT Manila EN BANC

CRUZ, J.: There was instant opposition when PAGCOR announced the opening of a casino in Cagayan de Oro City. Civic organizations angrily denounced the project. The religious elements echoed the objection and so did the women's groups and the youth. Demonstrations were led by the mayor and the city legislators. The media trumpeted the protest, describing the casino as an affront to the welfare of the city. The trouble arose when in 1992, flush with its tremendous success in several cities, PAGCOR decided to expand its operations to Cagayan de Oro City. To this end, it leased a portion of a building belonging to Pryce Properties Corporation, Inc., one of the herein private respondents, renovated and equipped the same, and prepared to inaugurate its casino there during the Christmas season. The reaction of the Sangguniang Panlungsod of Cagayan de Oro City was swift and hostile. On December 7, 1992, it enacted Ordinance No. 3353 reading as follows: ORDINANCE NO. 3353 AN ORDINANCE PROHIBITING THE ISSUANCE OF BUSINESS PERMIT AND CANCELLING EXISTING BUSINESS PERMIT TO ANY ESTABLISHMENT FOR THE USING AND ALLOWING TO BE USED ITS PREMISES OR PORTION THEREOF FOR THE OPERATION OF CASINO.

G.R. No. 111097 July 20, 1994 MAYOR PABLO P. MAGTAJAS & THE CITY OF CAGAYAN DE ORO, petitioners, vs. PRYCE PROPERTIES CORPORATION, INC. & PHILIPPINE AMUSEMENT AND GAMING CORPORATION, respondents. Aquilino G. Pimentel, Jr. and Associates for petitioners. R.R. Torralba & Associates for private respondent.

BE IT ORDAINED by the Sangguniang Panlungsod of the City of Cagayan de Oro, in session assembled that: Sec. 1. That pursuant to the policy of the city banning the operation of casino within its territorial jurisdiction, no business permit shall be issued to any person, partnership or corporation for the operation of casino within the city limits. Sec. 2. That it shall be a violation of existing business permit by any persons, partnership or corporation to use its business establishment or portion thereof, or allow the use thereof by others for casino operation and other gambling activities. Sec. 3. PENALTIES. Any violation of such existing business permit as defined in the preceding section shall suffer the following penalties, to wit: a) Suspension of the business permit for sixty (60) days for the first offense and a fine of P1,000.00/day b) Suspension of the business permit for Six (6) months for the second offense,

and a fine of P3,000.00/day c) Permanent revocation of the business permit and imprisonment of One (1) year, for the third and subsequent offenses. Sec. 4. This Ordinance shall take effect ten (10) days from publication thereof. Nor was this all. On January 4, 1993, it adopted a sterner Ordinance No. 3375-93 reading as follows: ORDINANCE NO. 3375-93 AN ORDINANCE PROHIBITING THE OPERATION OF CASINO AND PROVIDING PENALTY FOR VIOLATION THEREFOR. WHEREAS, the City Council established a policy as early as 1990 against CASINO under its Resolution No. 2295; WHEREAS, on October 14, 1992, the City Council passed another Resolution No. 2673, reiterating its policy against the establishment of CASINO; WHEREAS, subsequently, thereafter, it likewise passed Ordinance No. 3353, prohibiting the issuance of Business Permit and to cancel

existing Business Permit to any establishment for the using and allowing to be used its premises or portion thereof for the operation of CASINO; WHEREAS, under Art. 3, section 458, No. (4), sub paragraph VI of the Local Government Code of 1991 (Rep. Act 7160) and under Art. 99, No. (4), Paragraph VI of the implementing rules of the Local Government Code, the City Council as the Legislative Body shall enact measure to suppress any activity inimical to public morals and general welfare of the people and/or regulate or prohibit such activity pertaining to amusement or entertainment in order to protect social and moral welfare of the community; NOW THEREFORE, BE IT ORDAINED by the City Council in session duly assembled that: Sec. 1. The operation of gambling CASINO in the City of Cagayan de Oro is hereby prohibited. Sec. 2. Any violation of this Ordinance shall be subject to the following penalties: a) Administrative fine of P5,000.00 shall be imposed against the proprietor, partnership or corporation undertaking the operation, conduct, maintenance of gambling CASINO in the City and closure thereof;

b) Imprisonment of not less than six (6) months nor more than one (1) year or a fine in the amount of P5,000.00 or both at the discretion of the court against the manager, supervisor, and/or any person responsible in the establishment, conduct and maintenance of gambling CASINO. Sec. 3. This Ordinance shall take effect ten (10) days after its publication in a local newspaper of general circulation. Pryce assailed the ordinances before the Court of Appeals, where it was joined by PAGCOR as intervenor and supplemental petitioner. Their challenge succeeded. On March 31, 1993, the Court of Appeals declared the ordinances invalid and issued the writ prayed for to prohibit their enforcement. 1 Reconsideration of this decision was denied on July 13, 1993.
2

Cagayan de Oro City and its mayor are now before us in this petition for review under Rule 45 of the Rules of Court. 3 They aver that the respondent Court of Appeals erred in holding that: 1. Under existing laws, the Sangguniang Panlungsod of the City of Cagayan de Oro does not have the power and authority to prohibit the establishment and operation of a PAGCOR gambling casino within the City's territorial limits. 2. The phrase "gambling and other prohibited games of chance" found in Sec. 458, par. (a), sub-par. (1) (v) of R.A. 7160 could only mean "illegal gambling."

3. The questioned Ordinances in effect annul P.D. 1869 and are therefore invalid on that point. 4. The questioned Ordinances are discriminatory to casino and partial to cockfighting and are therefore invalid on that point. 5. The questioned Ordinances are not reasonable, not consonant with the general powers and purposes of the instrumentality concerned and inconsistent with the laws or policy of the State. 6. It had no option but to follow the ruling in the case of Basco, et al. v. PAGCOR, G.R. No. 91649, May 14, 1991, 197 SCRA 53 in disposing of the issues presented in this present case. PAGCOR is a corporation created directly by P.D. 1869 to help centralize and regulate all games of chance, including casinos on land and sea within the territorial jurisdiction of the Philippines. In Basco v. Philippine Amusements and Gaming Corporation, 4 this Court sustained the constitutionality of the decree and even cited the benefits of the entity to the national economy as the third highest revenue-earner in the government, next only to the BIR and the Bureau of Customs. Cagayan de Oro City, like other local political subdivisions, is empowered to enact ordinances for the purposes indicated in the Local Government Code. It is expressly vested with the police power under what is known as the General Welfare Clause now embodied in Section 16 as follows:

Sec. 16. General Welfare. Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. In addition, Section 458 of the said Code specifically declares that: Sec. 458. Powers, Duties, Functions and Compensation. (a) The Sangguniang Panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall:

(1) Approve ordinances and pass resolutions necessary for an efficient and effective city government, and in this connection, shall: xxx xxx xxx (v) Enact ordinances intended to prevent, suppress and impose appropriate penalties for habitual drunkenness in public places, vagrancy, mendicancy, prostitution, establishment and maintenance of houses of ill repute, gambling and other prohibited games of chance, fraudulent devices and ways to obtain money or property, drug addiction, maintenance of drug dens, drug pushing, juvenile delinquency, the printing,

distribution or exhibition of obscene or pornographic materials or publications, and such other activities inimical to the welfare and morals of the inhabitants of the city; This section also authorizes the local government units to regulate properties and businesses within their territorial limits in the interest of the general welfare. 5 The petitioners argue that by virtue of these provisions, the Sangguniang Panlungsod may prohibit the operation of casinos because they involve games of chance, which are detrimental to the people. Gambling is not allowed by general law and even by the Constitution itself. The legislative power conferred upon local government units may be exercised over all kinds of gambling and not only over "illegal gambling" as the respondents erroneously argue. Even if the operation of casinos may have been permitted under P.D. 1869, the government of Cagayan de Oro City has the authority to prohibit them within its territory pursuant to the authority entrusted to it by the Local Government Code. It is submitted that this interpretation is consonant with the policy of local autonomy as mandated in Article II, Section 25, and Article X of the Constitution, as well as various other provisions therein seeking to strengthen the character of the nation. In giving the local government units the power to prevent or suppress gambling and other social problems, the

Local Government Code has recognized the competence of such communities to determine and adopt the measures best expected to promote the general welfare of their inhabitants in line with the policies of the State. The petitioners also stress that when the Code expressly authorized the local government units to prevent and suppress gambling and other prohibited games of chance, like craps, baccarat, blackjack and roulette, it meant all forms of gambling without distinction. Ubi lex non distinguit, nec nos distinguere debemos. 6 Otherwise, it would have expressly excluded from the scope of their power casinos and other forms of gambling authorized by special law, as it could have easily done. The fact that it did not do so simply means that the local government units are permitted to prohibit all kinds of gambling within their territories, including the operation of casinos. The adoption of the Local Government Code, it is pointed out, had the effect of modifying the charter of the PAGCOR. The Code is not only a later enactment than P.D. 1869 and so is deemed to prevail in case of inconsistencies between them. More than this, the powers of the PAGCOR under the decree are expressly discontinued by the Code insofar as they do not conform to its philosophy and provisions, pursuant to Par. (f) of its repealing clause reading as follows: (f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this Code are hereby repealed or modified accordingly. It is also maintained that assuming there is doubt regarding the effect of the Local Government Code on P.D. 1869, the

doubt must be resolved in favor of the petitioners, in accordance with the direction in the Code calling for its liberal interpretation in favor of the local government units. Section 5 of the Code specifically provides: Sec. 5. Rules of Interpretation. In the interpretation of the provisions of this Code, the following rules shall apply: (a) Any provision on a power of a local government unit shall be liberally interpreted in its favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower local government unit. Any fair and reasonable doubt as to the existence of the power shall be interpreted in favor of the local government unit concerned; xxx xxx xxx (c) The general welfare provisions in this Code shall be liberally interpreted to give more powers to local government units in accelerating economic development and upgrading the quality of life for the people in the community; . . . (Emphasis supplied.) Finally, the petitioners also attack gambling as intrinsically harmful and cite various provisions of the Constitution and several decisions of this Court expressive of the general and official disapprobation of the vice. They invoke the State policies on the family and the proper upbringing of the youth and, as might be expected, call attention to the old case of U.S. v. Salaveria, 7 which sustained a municipal ordinance prohibiting the playing of panguingue. The petitioners decry the immorality of gambling. They also impugn the wisdom of

P.D. 1869 (which they describe as "a martial law instrument") in creating PAGCOR and authorizing it to operate casinos "on land and sea within the territorial jurisdiction of the Philippines." This is the opportune time to stress an important point. The morality of gambling is not a justiciable issue. Gambling is not illegal per se. While it is generally considered inimical to the interests of the people, there is nothing in the Constitution categorically proscribing or penalizing gambling or, for that matter, even mentioning it at all. It is left to Congress to deal with the activity as it sees fit. In the exercise of its own discretion, the legislature may prohibit gambling altogether or allow it without limitation or it may prohibit some forms of gambling and allow others for whatever reasons it may consider sufficient. Thus, it has prohibited jueteng and monte but permits lotteries, cockfighting and horse-racing. In making such choices, Congress has consulted its own wisdom, which this Court has no authority to review, much less reverse. Well has it been said that courts do not sit to resolve the merits of conflicting theories. 8 That is the prerogative of the political departments. It is settled that questions regarding the wisdom, morality, or practicibility of statutes are not addressed to the judiciary but may be resolved only by the legislative and executive departments, to which the function belongs in our scheme of government. That function is exclusive. Whichever way these branches decide, they are answerable only to their own conscience and the constituents who will ultimately judge their acts, and not to the courts of justice. The only question we can and shall resolve in this petition is the validity of Ordinance No. 3355 and Ordinance No. 3375-93 as enacted by the Sangguniang Panlungsod of Cagayan de Oro City. And we shall do so only by the criteria laid down by

law and not by our own convictions on the propriety of gambling. The tests of a valid ordinance are well established. A long line of decisions 9 has held that to be valid, an ordinance must conform to the following substantive requirements: 1) It must not contravene the constitution or any statute. 2) It must not be unfair or oppressive. 3) It must not be partial or discriminatory. 4) It must not prohibit but may regulate trade. 5) It must be general and consistent with public policy. 6) It must not be unreasonable. We begin by observing that under Sec. 458 of the Local Government Code, local government units are authorized to prevent or suppress, among others, "gambling and other prohibited games of chance." Obviously, this provision excludes games of chance which are not prohibited but are in fact permitted by law. The petitioners are less than accurate in claiming that the Code could have excluded such games of chance but did not. In fact it does. The language of the section is clear and unmistakable. Under the rule of noscitur a sociis, a word or phrase should be interpreted in relation to, or given the same meaning of, words with which it is associated. Accordingly, we conclude that since the word "gambling" is associated with "and other prohibited games of chance," the word should be read as referring to only illegal gambling

which, like the other prohibited games of chance, must be prevented or suppressed. We could stop here as this interpretation should settle the problem quite conclusively. But we will not. The vigorous efforts of the petitioners on behalf of the inhabitants of Cagayan de Oro City, and the earnestness of their advocacy, deserve more than short shrift from this Court. The apparent flaw in the ordinances in question is that they contravene P.D. 1869 and the public policy embodied therein insofar as they prevent PAGCOR from exercising the power conferred on it to operate a casino in Cagayan de Oro City. The petitioners have an ingenious answer to this misgiving. They deny that it is the ordinances that have changed P.D. 1869 for an ordinance admittedly cannot prevail against a statute. Their theory is that the change has been made by the Local Government Code itself, which was also enacted by the national lawmaking authority. In their view, the decree has been, not really repealed by the Code, but merely "modified pro tanto" in the sense that PAGCOR cannot now operate a casino over the objection of the local government unit concerned. This modification of P.D. 1869 by the Local Government Code is permissible because one law can change or repeal another law. It seems to us that the petitioners are playing with words. While insisting that the decree has only been "modified pro tanto," they are actually arguing that it is already dead, repealed and useless for all intents and purposes because the Code has shorn PAGCOR of all power to centralize and regulate casinos. Strictly speaking, its operations may now be not only prohibited by the local government unit; in fact, the prohibition is not only discretionary but mandated by Section 458 of the Code if the word "shall" as used therein is to be given its accepted meaning. Local government units have now

no choice but to prevent and suppress gambling, which in the petitioners' view includes both legal and illegal gambling. Under this construction, PAGCOR will have no more games of chance to regulate or centralize as they must all be prohibited by the local government units pursuant to the mandatory duty imposed upon them by the Code. In this situation, PAGCOR cannot continue to exist except only as a toothless tiger or a white elephant and will no longer be able to exercise its powers as a prime source of government revenue through the operation of casinos. It is noteworthy that the petitioners have cited only Par. (f) of the repealing clause, conveniently discarding the rest of the provision which painstakingly mentions the specific laws or the parts thereof which are repealed (or modified) by the Code. Significantly, P.D. 1869 is not one of them. A reading of the entire repealing clause, which is reproduced below, will disclose the omission: Sec. 534. Repealing Clause. (a) Batas Pambansa Blg. 337, otherwise known as the "Local Government Code," Executive Order No. 112 (1987), and Executive Order No. 319 (1988) are hereby repealed. (b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders, instructions, memoranda and issuances related to or concerning the barangay are hereby repealed. (c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding hospital fund; Section 3, a (3) and b (2) of Republic Act. No. 5447 regarding the Special Education Fund; Presidential Decree No. 144 as amended by Presidential Decree Nos. 559 and 1741;

Presidential Decree No. 231 as amended; Presidential Decree No. 436 as amended by Presidential Decree No. 558; and Presidential Decree Nos. 381, 436, 464, 477, 526, 632, 752, and 1136 are hereby repealed and rendered of no force and effect. (d) Presidential Decree No. 1594 is hereby repealed insofar as it governs locally-funded projects. (e) The following provisions are hereby repealed or amended insofar as they are inconsistent with the provisions of this Code: Sections 2, 16, and 29 of Presidential Decree No. 704; Sections 12 of Presidential Decree No. 87, as amended; Sections 52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of Presidential Decree No. 463, as amended; and Section 16 of Presidential Decree No. 972, as amended, and (f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this Code are hereby repealed or modified accordingly. Furthermore, it is a familiar rule that implied repeals are not lightly presumed in the absence of a clear and unmistakable showing of such intention. In Lichauco & Co. v. Apostol, 10 this Court explained: The cases relating to the subject of repeal by implication all proceed on the assumption that if

the act of later date clearly reveals an intention on the part of the lawmaking power to abrogate the prior law, this intention must be given effect; but there must always be a sufficient revelation of this intention, and it has become an unbending rule of statutory construction that the intention to repeal a former law will not be imputed to the Legislature when it appears that the two statutes, or provisions, with reference to which the question arises bear to each other the relation of general to special. There is no sufficient indication of an implied repeal of P.D. 1869. On the contrary, as the private respondent points out, PAGCOR is mentioned as the source of funding in two later enactments of Congress, to wit, R.A. 7309, creating a Board of Claims under the Department of Justice for the benefit of victims of unjust punishment or detention or of violent crimes, and R.A. 7648, providing for measures for the solution of the power crisis. PAGCOR revenues are tapped by these two statutes. This would show that the PAGCOR charter has not been repealed by the Local Government Code but has in fact been improved as it were to make the entity more responsive to the fiscal problems of the government. It is a canon of legal hermeneutics that instead of pitting one statute against another in an inevitably destructive confrontation, courts must exert every effort to reconcile them, remembering that both laws deserve a becoming respect as the handiwork of a coordinate branch of the government. On the assumption of a conflict between P.D. 1869 and the Code, the proper action is not to uphold one and annul the other but to give effect to both by harmonizing them if possible. This is possible in the case before us. The proper resolution of the problem at hand is to hold that under the Local Government Code, local government units may (and indeed must) prevent

and suppress all kinds of gambling within their territories except only those allowed by statutes like P.D. 1869. The exception reserved in such laws must be read into the Code, to make both the Code and such laws equally effective and mutually complementary. This approach would also affirm that there are indeed two kinds of gambling, to wit, the illegal and those authorized by law. Legalized gambling is not a modern concept; it is probably as old as illegal gambling, if not indeed more so. The petitioners' suggestion that the Code authorizes them to prohibit all kinds of gambling would erase the distinction between these two forms of gambling without a clear indication that this is the will of the legislature. Plausibly, following this theory, the City of Manila could, by mere ordinance, prohibit the Philippine Charity Sweepstakes Office from conducting a lottery as authorized by R.A. 1169 and B.P. 42 or stop the races at the San Lazaro Hippodrome as authorized by R.A. 309 and R.A. 983. In light of all the above considerations, we see no way of arriving at the conclusion urged on us by the petitioners that the ordinances in question are valid. On the contrary, we find that the ordinances violate P.D. 1869, which has the character and force of a statute, as well as the public policy expressed in the decree allowing the playing of certain games of chance despite the prohibition of gambling in general. The rationale of the requirement that the ordinances should not contravene a statute is obvious. Municipal governments are only agents of the national government. Local councils exercise only delegated legislative powers conferred on them by Congress as the national lawmaking body. The delegate cannot be superior to the principal or exercise powers higher than those of the latter. It is a heresy to suggest that the local government units can undo the acts of Congress, from which

they have derived their power in the first place, and negate by mere ordinance the mandate of the statute. Municipal corporations owe their origin to, and derive their powers and rights wholly from the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. As it may destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the legislature might, by a single act, and if we can suppose it capable of so great a folly and so great a wrong, sweep from existence all of the municipal corporations in the State, and the corporation could not prevent it. We know of no limitation on the right so far as to the corporation themselves are concerned. They are, so to phrase it, the mere tenants at will of the legislature. 11 This basic relationship between the national legislature and the local government units has not been enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy. Without meaning to detract from that policy, we here confirm that Congress retains control of the local government units although in significantly reduced degree now than under our previous Constitutions. The power to create still includes the power to destroy. The power to grant still includes the power to withhold or recall. True, there are certain notable innovations in the Constitution, like the direct conferment on the local government units of the power to tax, 12 which cannot now be withdrawn by mere statute. By and large, however, the national legislature is still the principal of the local government units, which cannot defy its will or modify or violate it.

The Court understands and admires the concern of the petitioners for the welfare of their constituents and their apprehensions that the welfare of Cagayan de Oro City will be endangered by the opening of the casino. We share the view that "the hope of large or easy gain, obtained without special effort, turns the head of the workman" 13 and that "habitual gambling is a cause of laziness and ruin." 14 In People v. Gorostiza, 15 we declared: "The social scourge of gambling must be stamped out. The laws against gambling must be enforced to the limit." George Washington called gambling "the child of avarice, the brother of iniquity and the father of mischief." Nevertheless, we must recognize the power of the legislature to decide, in its own wisdom, to legalize certain forms of gambling, as was done in P.D. 1869 and impliedly affirmed in the Local Government Code. That decision can be revoked by this Court only if it contravenes the Constitution as the touchstone of all official acts. We do not find such contravention here. We hold that the power of PAGCOR to centralize and regulate all games of chance, including casinos on land and sea within the territorial jurisdiction of the Philippines, remains unimpaired. P.D. 1869 has not been modified by the Local Government Code, which empowers the local government units to prevent or suppress only those forms of gambling prohibited by law. Casino gambling is authorized by P.D. 1869. This decree has the status of a statute that cannot be amended or nullified by a mere ordinance. Hence, it was not competent for the Sangguniang Panlungsod of Cagayan de Oro City to enact Ordinance No. 3353 prohibiting the use of buildings for the operation of a casino and Ordinance No. 3375-93 prohibiting the operation of casinos. For all their praiseworthy motives, these ordinances are contrary to P.D. 1869 and the public

policy announced therein and are therefore ultra vires and void. WHEREFORE, the petition is DENIED and the challenged decision of the respondent Court of Appeals is AFFIRMED, with costs against the petitioners. It is so ordered. Narvasa, C.J., Feliciano, Bidin, Regalado, Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur.

Separate Opinions

PADILLA, J., concurring: I concur with the majority holding that the city ordinances in question cannot modify much less repeal PAGCOR's general authority to establish and maintain gambling casinos anywhere in the Philippines under Presidential Decree No. 1869. In Basco v. Philippine Amusement and Gaming Corporation (PAGCOR), 197 SCRA 52, I stated in a separate opinion that: . . . I agree with the decision insofar as it holds that the prohibition, control, and regulation of the entire activity known as gambling properly pertain to "state policy". It is, therefore, the

political departments of government, namely, the legislative and the executive that should decide on what government should do in the entire area of gambling, and assume full responsibility to the people for such policy." (Emphasis supplied) However, despite the legality of the opening and operation of a casino in Cagayan de Oro City by respondent PAGCOR, I wish to reiterate my view that gambling in any form runs counter to the government's own efforts to re-establish and resurrect the Filipino moral character which is generally perceived to be in a state of continuing erosion. It is in the light of this alarming perspective that I call upon government to carefully weigh the advantages and disadvantages of setting up more gambling facilities in the country. That the PAGCOR contributes greatly to the coffers of the government is not enough reason for setting up more gambling casinos because, undoubtedly, this will not help improve, but will cause a further deterioration in the Filipino moral character. It is worth remembering in this regard that, 1) what is legal is not always moral and 2) the ends do not always justify the means. As in Basco, I can easily visualize prostitution at par with gambling. And yet, legalization of the former will not render it any less reprehensible even if substantial revenue for the government can be realized from it. The same is true of gambling.

In the present case, it is my considered view that the national government (through PAGCOR) should re-examine and reevaluate its decision of imposing the gambling casino on the residents of Cagayan de Oro City; for it is abundantly clear that public opinion in the city is very much against it, and again the question must be seriously deliberated: will the prospects of revenue to be realized from the casino outweigh the further destruction of the Filipino sense of values?

DAVIDE, JR., J., concurring: While I concur in part with the majority, I wish, however, to express my views on certain aspects of this case. I. It must at once be noted that private respondent Pryce Properties Corporation (PRYCE) directly filed with the Court of Appeals its so-called petition for prohibition, thereby invoking the said court's original jurisdiction to issue writs of prohibition under Section 9(1) of B.P. Blg. 129. As I see it, however, the principal cause of action therein is one for declaratory relief: to declare null and unconstitutional for, inter alia, having been enacted without or in excess of jurisdiction, for impairing the obligation of contracts, and for being inconsistent with public policy the challenged ordinances enacted by the Sangguniang Panglungsod of the City of Cagayan de Oro. The intervention therein of public respondent Philippine Amusement and Gaming Corporation (PAGCOR) further underscores the "declaratory relief" nature of the action. PAGCOR assails the ordinances for being contrary to the nonimpairment and equal protection clauses of the Constitution, violative of the Local Government Code, and against the State's national policy declared in P.D. No. 1869. Accordingly,

the Court of Appeals does not have jurisdiction over the nature of the action. Even assuming arguendo that the case is one for prohibition, then, under this Court's established policy relative to the hierarchy of courts, the petition should have been filed with the Regional Trial Court of Cagayan de Oro City. I find no special or compelling reason why it was not filed with the said court. I do not wish to entertain the thought that PRYCE doubted a favorable verdict therefrom, in which case the filing of the petition with the Court of Appeals may have been impelled by tactical considerations. A dismissal of the petition by the Court of Appeals would have been in order pursuant to our decisions in People vs. Cuaresma (172 SCRA 415, [1989]) and Defensor-Santiago vs. Vasquez (217 SCRA 633 [1993]). In Cuaresma, this Court stated: A last word. This court's original jurisdiction to issue writs of certiorari (as well as prohibition, mandamus, quo warranto, habeas corpus and injunction) is not exclusive. It is shared by this Court with Regional Trial Courts (formerly Courts of First Instance), which may issue the writ, enforceable in any part of their respective regions. It is also shared by this court, and by the Regional Trial Court, with the Court of Appeals (formerly, Intermediate Appellate Court), although prior to the effectivity of Batas Pambansa Bilang 129 on August 14, 1981, the latter's competence to issue the extraordinary writs was restricted by those "in aid of its appellate jurisdiction." This concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of the court to which application therefor will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the revenue

of appeals, and should also serve as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. It is a policy that is necessary to prevent inordinate demands upon the Court's time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further overcrowding of the Court's docket. Indeed, the removal of the restriction of the jurisdiction of the Court of Appeals in this regard, supra resulting from the deletion of the qualifying phrase, "in aid of its appellate jurisdiction" was evidently intended precisely to relieve this Court pro tanto of the burden of dealing with applications for extraordinary writs which, but for the expansion of the Appellate Court's corresponding jurisdiction, would have had to be filed with it. (citations omitted) And in Vasquez, this Court said: One final observation. We discern in the proceedings in this case a propensity on the part of petitioner, and, for that matter, the same may be said of a number of litigants who initiate

recourses before us, to disregard the hierarchy of courts in our judicial system by seeking relief directly from this Court despite the fact that the same is available in the lower courts in the exercise of their original or concurrent jurisdiction, or is even mandated by law to be sought therein. This practice must be stopped, not only because of the imposition upon the previous time of this Court but also because of the inevitable and resultant delay, intended or otherwise, in the adjudication of the case which often has to be remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to resolve the issues since this Court is not a trier of facts. We, therefore, reiterate the judicial policy that this Court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of our primary jurisdiction. II. The challenged ordinances are (a) Ordinance No. 3353 entitled, "An Ordinance Prohibiting the Issuance of Business Permit and Canceling Existing Business Permit To Any Establishment for the Using and Allowing to be Used Its Premises or Portion Thereof for the Operation of Casino," and (b) Ordinance No. 3375-93 entitled, "An Ordinance Prohibiting the Operation of Casino and Providing Penalty for Violation Therefor." They were enacted to implement Resolution No. 2295 entitled, "Resolution Declaring As a Matter of Policy to Prohibit and/or Not to Allow the Establishment of the Gambling Casino in the City of Cagayan de Oro," which was

promulgated on 19 November 1990 nearly two years before PRYCE and PAGCOR entered into a contract of lease under which the latter leased a portion of the former's Pryce Plaza Hotel for the operation of a gambling casino which resolution was vigorously reiterated in Resolution No. 2673 of 19 October 1992. The challenged ordinances were enacted pursuant to the Sangguniang Panglungsod's express powers conferred by Section 458, paragraph (a), subparagraphs (1)-(v), (3)-(ii), and (4)-(i), (iv), and (vii), Local Government Code, and pursuant to its implied power under Section 16 thereof (the general welfare clause) which reads: Sec. 16. General Welfare. Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.

The issue that necessarily arises is whether in granting local governments (such as the City of Cagayan de Oro) the above powers and functions, the Local Government Code has, pro tanto, repealed P.D. No. 1869 insofar as PAGCOR's general authority to establish and maintain gambling casinos anywhere in the Philippines is concerned. I join the majority in holding that the ordinances cannot repeal P.D. No. 1869. III. The nullification by the Court of Appeals of the challenged ordinances as unconstitutional primarily because it is in contravention to P.D. No. 1869 is unwarranted. A contravention of a law is not necessarily a contravention of the constitution. In any case, the ordinances can still stand even if they be conceded as offending P.D. No. 1869. They can be reconciled, which is not impossible to do. So reconciled, the ordinances should be construed as not applying to PAGCOR. IV. From the pleadings, it is obvious that the government and the people of Cagayan de Oro City are, for obvious reasons, strongly against the opening of the gambling casino in their city. Gambling, even if legalized, would be inimical to the general welfare of the inhabitants of the City, or of any place for that matter. The PAGCOR, as a government-owned corporation, must consider the valid concerns of the people of the City of Cagayan de Oro and should not impose its will upon them in an arbitrary, if not despotic, manner.

# Separate Opinions

PADILLA, J., concurring: I concur with the majority holding that the city ordinances in question cannot modify much less repeal PAGCOR's general authority to establish and maintain gambling casinos anywhere in the Philippines under Presidential Decree No. 1869. In Basco v. Philippine Amusement and Gaming Corporation (PAGCOR), 197 SCRA 52, I stated in a separate opinion that: . . . I agree with the decision insofar as it holds that the prohibition, control, and regulation of the entire activity known as gambling properly pertain to "state policy". It is, therefore, the political departments of government, namely, the legislative and the executive that should decide on what government should do in the entire area of gambling, and assume full responsibility to the people for such policy. (emphasis supplied) However, despite the legality of the opening and operation of a casino in Cagayan de Oro City by respondent PAGCOR, I wish to reiterate my view that gambling in any form runs counter to the government's own efforts to re-establish and resurrect the Filipino moral character which is generally perceived to be in a state of continuing erosion. It is in the light of this alarming perspective that I call upon government to carefully weigh the advantages and disadvantages of setting up more gambling facilities in the country.

That the PAGCOR contributes greatly to the coffers of the government is not enough reason for setting up more gambling casinos because, undoubtedly, this will not help improve, but will cause a further deterioration in the Filipino moral character. It is worth remembering in this regard that, 1) what is legal is not always moral and 2) the ends do not always justify the means. As in Basco, I can easily visualize prostitution at par with gambling. And yet, legalization of the former will not render it any less reprehensible even if substantial revenue for the government can be realized from it. The same is true of gambling. In the present case, it is my considered view that the national government (through PAGCOR) should re-examine and reevaluate its decision of imposing the gambling casino on the residents of Cagayan de Oro City; for it is abundantly clear that public opinion in the city is very much against it, and again the question must be seriously deliberated: will the prospects of revenue to be realized from the casino outweigh the further destruction of the Filipino sense of values? DAVIDE, JR., J., concurring: While I concur in part with the majority, I wish, however, to express my views on certain aspects of this case. I. It must at once be noted that private respondent Pryce Properties Corporation (PRYCE) directly filed with the Court of Appeals its so-called petition for prohibition, thereby invoking the said court's original jurisdiction to issue writs of prohibition

under Section 9(1) of B.P. Blg. 129. As I see it, however, the principal cause of action therein is one for declaratory relief: to declare null and unconstitutional for, inter alia, having been enacted without or in excess of jurisdiction, for impairing the obligation of contracts, and for being inconsistent with public policy the challenged ordinances enacted by the Sangguniang Panglungsod of the City of Cagayan de Oro. The intervention therein of public respondent Philippine Amusement and Gaming Corporation (PAGCOR) further underscores the "declaratory relief" nature of the action. PAGCOR assails the ordinances for being contrary to the nonimpairment and equal protection clauses of the Constitution, violative of the Local Government Code, and against the State's national policy declared in P.D. No. 1869. Accordingly, the Court of Appeals does not have jurisdiction over the nature of the action. Even assuming arguendo that the case is one for prohibition, then, under this Court's established policy relative to the hierarchy of courts, the petition should have been filed with the Regional Trial Court of Cagayan de Oro City. I find no special or compelling reason why it was not filed with the said court. I do not wish to entertain the thought that PRYCE doubted a favorable verdict therefrom, in which case the filing of the petition with the Court of Appeals may have been impelled by tactical considerations. A dismissal of the petition by the Court of Appeals would have been in order pursuant to our decisions in People vs. Cuaresma (172 SCRA 415, [1989]) and Defensor-Santiago vs. Vasquez (217 SCRA 633 [1993]). In Cuaresma, this Court stated: A last word. This court's original jurisdiction to issue writs of certiorari (as well as prohibition, mandamus, quo warranto, habeas corpus and injunction) is not exclusive. It is shared by this Court with Regional Trial Courts (formerly Courts of First Instance), which may issue the writ, enforceable in any part of their respective

regions. It is also shared by this court, and by the Regional Trial Court, with the Court of Appeals (formerly, Intermediate Appellate Court), although prior to the effectivity of Batas Pambansa Bilang 129 on August 14, 1981, the latter's competence to issue the extraordinary writs was restricted by those "in aid of its appellate jurisdiction." This concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of the court to which application therefor will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the revenue of appeals, and should also serve as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. It is a policy that is necessary to prevent inordinate demands upon the Court's time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further overcrowding of the Court's docket. Indeed, the removal of the restriction of the jurisdiction of the Court of Appeals in this regard, supra resulting from the deletion of the qualifying

phrase, "in aid of its appellate jurisdiction" was evidently intended precisely to relieve this Court pro tanto of the burden of dealing with applications for extraordinary writs which, but for the expansion of the Appellate Court's corresponding jurisdiction, would have had to be filed with it. (citations omitted) And in Vasquez, this Court said: One final observation. We discern in the proceedings in this case a propensity on the part of petitioner, and, for that matter, the same may be said of a number of litigants who initiate recourses before us, to disregard the hierarchy of courts in our judicial system by seeking relief directly from this Court despite the fact that the same is available in the lower courts in the exercise of their original or concurrent jurisdiction, or is even mandated by law to be sought therein. This practice must be stopped, not only because of the imposition upon the previous time of this Court but also because of the inevitable and resultant delay, intended or otherwise, in the adjudication of the case which often has to be remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to resolve the issues since this Court is not a trier of facts. We, therefore, reiterate the judicial policy that this Court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of our primary jurisdiction.

II. The challenged ordinances are (a) Ordinance No. 3353 entitled, "An Ordinance Prohibiting the Issuance of Business Permit and Canceling Existing Business Permit To Any Establishment for the Using and Allowing to be Used Its Premises or Portion Thereof for the Operation of Casino," and (b) Ordinance No. 3375-93 entitled, "An Ordinance Prohibiting the Operation of Casino and Providing Penalty for Violation Therefor." They were enacted to implement Resolution No. 2295 entitled, "Resolution Declaring As a Matter of Policy to Prohibit and/or Not to Allow the Establishment of the Gambling Casino in the City of Cagayan de Oro," which was promulgated on 19 November 1990 nearly two years before PRYCE and PAGCOR entered into a contract of lease under which the latter leased a portion of the former's Pryce Plaza Hotel for the operation of a gambling casino which resolution was vigorously reiterated in Resolution No. 2673 of 19 October 1992. The challenged ordinances were enacted pursuant to the Sangguniang Panglungsod's express powers conferred by Section 458, paragraph (a), subparagraphs (1)-(v), (3)-(ii), and (4)-(i), (iv), and (vii), Local Government Code, and pursuant to its implied power under Section 16 thereof (the general welfare clause) which reads: Sec. 16. General Welfare. Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall

ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. The issue that necessarily arises is whether in granting local governments (such as the City of Cagayan de Oro) the above powers and functions, the Local Government Code has, pro tanto, repealed P.D. No. 1869 insofar as PAGCOR's general authority to establish and maintain gambling casinos anywhere in the Philippines is concerned. I join the majority in holding that the ordinances cannot repeal P.D. No. 1869. III. The nullification by the Court of Appeals of the challenged ordinances as unconstitutional primarily because it is in contravention to P.D. No. 1869 is unwarranted. A contravention of a law is not necessarily a contravention of the constitution. In any case, the ordinances can still stand even if they be conceded as offending P.D. No. 1869. They can be reconciled, which is not impossible to do. So reconciled, the ordinances should be construed as not applying to PAGCOR. IV.

From the pleadings, it is obvious that the government and the people of Cagayan de Oro City are, for obvious reasons, strongly against the opening of the gambling casino in their city. Gambling, even if legalized, would be inimical to the general welfare of the inhabitants of the City, or of any place for that matter. The PAGCOR, as a government-owned corporation, must consider the valid concerns of the people of the City of Cagayan de Oro and should not impose its will upon them in an arbitrary, if not despotic, manner.
#Footnotes

Authority, 204 SCRA 837; De la Cruz v. Paras, 123 SCRA 569; U.S. v. Abandan, 24 Phil. 165. 10 44 Phil. 138. 11 Clinton v. Ceder Rapids, etc. Railroad Co., 24 Iowa 455. 12 Art. X, Sec. 5, Constitution. 13 Planiol, Droit Civil, Vol. 2, No. 2210.

1 Rollo, pp. 64-94. 2 Ibid., pp. 53-62. 3 Pryce was dropped as private respondent in the resolution of the Court dated June 13, 1994. 4 197 SCRA 53. 5 Sec. 458, [2(vi-xv)]; [3(ii-vii)]; [4(i-ix)], Local Government Code, 1991. 6 Where the law does not distinguish, neither ought we to distinguish. 7 39 Phil. 102. 8 Garcia v. Executive Secretary, 204 SCRA 516, quoting Cooley, Constitutional Limitations, 8th ed., 379-380. 9 Tatel v. Municipality of Virac, 207 SCRA 157; Solicitor General v. Metropolitan Manila

14 Ibid. 15 77 Phil. 88.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 84240 March 25, 1992

OLIVIA S. PASCUAL and HERMES S. PASCUAL, petitioners, vs. ESPERANZA C. PASCUAL-BAUTISTA, MANUEL C. PASCUAL, JOSE C. PASCUAL, SUSANA C. PASCUALBAUTISTA, ERLINDA C. PASCUAL, WENCESLAO C. PASCUAL, JR., INTESTATE ESTATE OF ELEUTERIO T. PASCUAL, AVELINO PASCUAL, ISOCELES PASCUAL, LEIDA PASCUAL-MARTINES, VIRGINIA PASCUAL-NER, NONA PASCUAL-FERNANDO, OCTAVIO PASCUAL, GERANAIA PASCUAL-DUBERT, and THE HONORABLE PRESIDING JUDGE MANUEL S. PADOLINA of Br. 162, RTC, Pasig, Metro Manila, respondents.

Don Andres Pascual died intestate on October 12, 1973 without any issue, legitimate, acknowledged natural, adopted or spurious children and was survived by the following: (a) Adela Soldevilla de Pascual, surviving spouses; (b) Children of Wenceslao Pascual, Sr., a brother of the full blood of the deceased, to wit: Esperanza C. Pascual-Bautista Manuel C. Pascual Jose C. Pascual Susana C. Pascual-Bautista Erlinda C. Pascual Wenceslao C. Pascual, Jr. (c) Children of Pedro-Bautista, brother of the half blood of the deceased, to wit: Avelino Pascual Isoceles Pascual Loida PascualMartinez Virginia PascualNer Nona PascualFernando Octavio Pascual Geranaia Pascual-Dubert;

PARAS, J.: This is a petition for review on certiorari which seeks to reverse and set aside: (a) the decision of the Court of Appeals 1 dated April 29, 1988 in CA-G.R. SP. No. 14010 entitled "Olivia S. Pascual and Hermes S. Pascual v. Esperanza C. Pascual-Bautista, Manuel C. Pascual, Jose Pascual, Susana C. Pascual-Bautista, Erlinda C. Pascual, Wenceslao C. Pascual, Jr., et al." which dismissed the petition and in effect affirmed the decision of the trial court and (b) the resolution dated July 14, 1988 denying petitioners' motion for reconsideration. The undisputed facts of the case are as follows: Petitioners Olivia and Hermes both surnamed Pascual are the acknowledged natural children of the late Eligio Pascual, the latter being the full blood brother of the decedent Don Andres Pascual (Rollo, petition, p. 17).

(d) Acknowledged natural children of Eligio Pascual, brother of the full blood of the deceased, to wit: Olivia S. Pascual Hermes S. Pascual (e) Intestate of Eleuterio T. Pascual, a brother of the half blood of the deceased and represented by the following: Dominga M. Pascual Mamerta P. Fugoso Abraham S. Sarmiento, III Regina SarmientoMacaibay Eleuterio P. Sarmiento Domiga P. San Diego Nelia P. Marquez Silvestre M. Pascual Eleuterio M. Pascual (Rollo, pp. 46-47) Adela Soldevilla de Pascual, the surviving spouse of the late Don Andres Pascual, filed with the Regional Trial Court (RTC), Branch 162 (CFI of Rizal, Br. XXIII), a Special Proceeding,

Case No. 7554, for administration of the intestate estate of her late husband (Rollo, p. 47). On December 18, 1973, Adela soldevilla de Pascual filed a Supplemental Petition to the Petition for letters of Administration, where she expressly stated that Olivia Pascual and Hermes Pascual, are among the heirs of Don Andres Pascual (Rollo, pp. 99-101). On February 27, 1974, again Adela Soldevilla de Pascual executed an affidavit, to the effect that of her own knowledge, Eligio Pascual is the younger full blood brother of her late husband Don Andres Pascual, to belie the statement made by the oppositors, that they were are not among the known heirs of the deceased Don Andres Pascual (Rollo, p. 102). On October 16, 1985, all the above-mentioned heirs entered into a COMPROMISE AGREEMENT, over the vehement objections of the herein petitioners Olivia S. Pascual and Hermes S. Pascual, although paragraph V of such compromise agreement provides, to wit: This Compromise Agreement shall be without prejudice to the continuation of the aboveentitled proceedings until the final determination thereof by the court, or by another compromise agreement, as regards the claims of Olivia Pascual and Hermes Pascual as legal heirs of the deceased, Don Andres Pascual. (Rollo, p. 108) The said Compromise Agreement had been entered into despite the Manifestation/Motion of the petitioners Olivia Pascual and Hermes Pascual, manifesting their hereditary rights in the intestate estate of Don Andres Pascual, their uncle (Rollo, pp. 111-112).

On September 30, 1987, petitioners filed their Motion to Reiterate Hereditary Rights (Rollo, pp. 113-114) and the Memorandum in Support of Motion to reiterate Hereditary Rights (Rollo, pp. 116-130). On December 18, 1987, the Regional Trial Court, presided over by Judge Manuel S. Padolina issued an order, the dispositive portion of which reads: WHEREFORE, premises considered, this Court resolves as it is hereby resolved to Deny this motion reiterating the hereditary rights of Olivia and Hermes Pascual (Rollo, p. 136). On January 13, 1988, petitioners filed their motion for reconsideration (Rollo, pp. 515-526). and such motion was denied. Petitioner appealed their case to the Court of Appeals docketed as CA-G.R. No. 14010 (Rollo, p. 15.). On Aril 29, 1988, the respondent Court of Appeals rendered its decision the decision the dispositive part of which reads: WHEREFORE, the petition is DISMISSED. Costs against the petitioners. SO ORDERED. (Rollo, p. 38) Petitioners filed their motion for reconsideration of said decision and on July 14, 1988, the Court of Appeals issued its resolution denying the motion for reconsideration (Rollo, p. 42). Hence, this petition for review on certiorari.

After all the requirements had been filed, the case was given due course. The main issue to be resolved in the case at bar is whether or not Article 992 of the Civil Code of the Philippines, can be interpreted to exclude recognized natural children from the inheritance of the deceased. Petitioners contend that they do not fall squarely within the purview of Article 992 of the Civil Code of the Philippines, can be interpreted to exclude recognized and of the doctrine laid down in Diaz v. IAC (150 SCRA 645 [1987]) because being acknowledged natural children, their illegitimacy is not due to the subsistence of a prior marriage when such children were under conception (Rollo, p. 418). Otherwise stated they say the term "illegitimate" children as provided in Article 992 must be strictly construed to refer only to spurious children (Rollo, p. 419). On the other hand, private respondents maintain that herein petitioners are within the prohibition of Article 992 of the Civil Code and the doctrine laid down in Diaz v. IAC is applicable to them. The petition is devoid of merit. Pertinent thereto, Article 992 of the civil Code, provides: An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.

The issue in the case at bar, had already been laid to rest in Diaz v. IAC, supra, where this Court ruled that: Article 992 of the Civil Code provides a barrier or iron curtain in that it prohibits absolutely a succession ab intestato between the illegitimate child and the legitimate children and relatives of the father or mother of said legitimate child. They may have a natural tie of blood, but this is not recognized by law for the purposes of Article 992. Between the legitimate family and illegitimate family there is presumed to be an intervening antagonism and incompatibility. The illegitimate child is disgracefully looked down upon by the legitimate family; the family is in turn hated by the illegitimate child; the latter considers the privileged condition of the former, and the resources of which it is thereby deprived; the former, in turn, sees in the illegitimate child nothing but the product of sin, palpable evidence of a blemish broken in life; the law does no more than recognize this truth, by avoiding further grounds of resentment. Eligio Pascual is a legitimate child but petitioners are his illegitimate children. Applying the above doctrine to the case at bar, respondent IAC did not err in holding that petitioners herein cannot represent their father Eligio Pascual in the succession of the latter to the intestate estate of the decedent Andres Pascual, full blood brother of their father. In their memorandum, petitioners insisted that Article 992 in the light of Articles 902 and 989 of the Civil Code allows them

(Olivia and Hermes) to represent Eligio Pascual in the intestate estate of Don Andres Pascual. On motion for reconsideration of the decision in Diaz v. IAC, this Court further elucidated the successional rights of illegitimate children, which squarely answers the questions raised by the petitioner on this point. The Court held: Article 902, 989, and 990 clearly speaks of successional rights of illegitimate children, which rights are transmitted to their descendants upon their death. The descendants (of these illegitimate children) who may inherit by virtue of the right of representation may be legitimate or illegitimate. In whatever manner, one should not overlook the fact that the persons to be represented are themselves illegitimate. The three named provisions are very clear on this matter. The right of representation is not available to illegitimate descendants of legitimate children in the inheritance of a legitimate grandparent. It may be argued, as done by petitioners, that the illegitimate descendant of a legitimate child is entitled to represent by virtue of the provisions of Article 982, which provides that "the grandchildren and other descendants shall inherit by right of representation." Such a conclusion is erroneous. It would allow intestate succession by an illegitimate child to the legitimate parent of his father or mother, a situation which would set at naught the provisions of Article 992. Article 982 is inapplicable to the instant case because Article

992 prohibits absolutely a succession ab intestato between the illegitimate child and the legitimate children and relatives of the father or mother. It may not be amiss to state Article 982 is the general rule and Article 992 the exception. The rules laid down in Article 982 that "grandchildren and other descendants shall inherit by right of representation" and in Article 902 that the rights of illegitimate children . . . are transmitted upon their death to their descendants, whether legitimate or illegitimate are subject to the limitation prescribed by Article 992 to the end that an illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother. (Amicus Curiae's Opinion by former Justice Minister Ricardo C. Puno, p. 12). Diaz v. Intermediate Appellate Court, 182 SCRA 427; pp. 431-432; [1990]). Verily, the interpretation of the law desired by the petitioner may be more humane but it is also an elementary rule in statutory construction that when the words and phrases of the statute are clear and unequivocal, their meaning must be determined from the language employed and the statute must be taken to mean exactly what is says. (Baranda v. Gustilo, 165 SCRA 758-759 [1988]). The courts may not speculate as to the probable intent of the legislature apart from the words (Aparri v. CA, 127 SCRA 233 [1984]). When the law is clear, it is not susceptible of interpretation. It must be applied regardless of who may be affected, even if the law may be harsh or onerous. (Nepomuceno, et al. v. FC, 110 Phil. 42). And even granting that exceptions may be conceded, the same as a general rule, should be strictly but reasonably

construed; they extend only so far as their language fairly warrants, and all doubts should be resolved in favor of the general provisions rather than the exception. Thus, where a general rule is established by statute, the court will not curtail the former nor add to the latter by implication (Samson v. C.A., 145 SCRA 654 [1986]). Clearly the term "illegitimate" refers to both natural and spurious. Finally under Article 176 of the Family Code, all illegitimate children are generally placed under one category, which undoubtedly settles the issue as to whether or not acknowledged natural children should be treated differently, in the negative. It may be said that the law may be harsh but that is the law (DURA LEX SED LEX). PREMISES CONSIDERED, the petition is DISMISSED for lack of merit and the assailed decision of the respondent Court of Appeals dated April 29, 1988 is AFFIRMED. SO ORDERED. Melencio-Herrera, Padilla, Regalado and Nocon, JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-6355-56 August 31, 1953

PASTOR M. ENDENCIA and FERNANDO JUGO, plaintiffsappellees, vs. SATURNINO DAVID, as Collector of Internal Revenue, defendant-appellant. Office of the Solicitor General Juan R. Liwag and Solicitor Jose P. Alejandro for appellant. Manuel O. Chan for appellees. MONTEMAYOR, J.: This is a joint appeal from the decision of the Court of First Instance of Manila declaring section 13 of Republic Act No. 590 unconstitutional, and ordering the appellant Saturnino David as Collector of Internal Revenue to re-fund to Justice Pastor M. Endencia the sum of P1,744.45, representing the income tax collected on his salary as Associate Justice of the Court of Appeals in 1951, and to Justice Fernando Jugo the amount of P2,345.46, representing the income tax collected on his salary from January 1,1950 to October 19, 1950, as Presiding Justice of the Court of Appeals, and from October 20, 1950 to December 31,1950, as Associate Justice of the Supreme Court, without special pronouncement as to costs. Because of the similarity of the two cases, involving as they do the same question of law, they were jointly submitted for determination in the lower court. Judge Higinio B. Macadaeg presiding, in a rather exhaustive and well considered decision found and held that under the doctrine laid down by this Court in the case of Perfecto vs. Meer, 85 Phil., 552, the collection of income taxes from the salaries of Justice Jugo and Justice Endencia was a diminution of their compensation and therefore was in violation of the Constitution of the Philippines, and so ordered the refund of said taxes.

We see no profit and necessity in again discussing and considering the proposition and the arguments pro and cons involved in the case of Perfecto vs. Meer, supra, which are raised, brought up and presented here. In that case, we have held despite the ruling enunciated by the United States Federal Supreme Court in the case of O 'Malley vs. Woodrought 307 U. S., 277, that taxing the salary of a judicial officer in the Philippines is a diminution of such salary and so violates the Constitution. We shall now confine our-selves to a discussion and determination of the remaining question of whether or not Republic Act No. 590, particularly section 13, can justify and legalize the collection of income tax on the salary of judicial officers. According to the brief of the Solicitor General on behalf of appellant Collector of Internal Revenue, our decision in the case of Perfecto vs. Meer, supra, was not received favorably by Congress, because immediately after its promulgation, Congress enacted Republic Act No. 590. To bring home his point, the Solicitor General reproduced what he considers the pertinent discussion in the Lower House of House Bill No. 1127 which became Republic Act No. 590. For purposes of reference, we are reproducing section 9, Article VIII of our Constitution:. SEC. 9. The members of the Supreme Court and all judges of inferior courts shall hold office during good behavior, until they reach the age of seventy years, or become incapacitated to discharge the duties of their office. They shall receive such compensation as may be fixed by law, which shall not be diminished during their continuance in office. Until the Congress shall provide otherwise, the Chief Justice of the Supreme Court shall receive an annual compensation of sixteen

thousand pesos, and each Associate Justice, fifteen thousand pesos. As already stated construing and applying the above constitutional provision, we held in the Perfecto case that judicial officers are exempt from the payment of income tax on their salaries, because the collection thereof by the Government was a decrease or diminution of their salaries during their continuance in office, a thing which is expressly prohibited by the Constitution. Thereafter, according to the Solicitor General, because Congress did not favorably receive the decision in the Perfecto case, Congress promulgated Republic Act No. 590, if not to counteract the ruling in that decision, at least now to authorize and legalize the collection of income tax on the salaries of judicial officers. We quote section 13 of Republic Act No. 590: SEC 13. No salary wherever received by any public officer of the Republic of the Philippines shall be considered as exempt from the income tax, payment of which is hereby declared not to be dimunition of his compensation fixed by the Constitution or by law. So we have this situation. The Supreme Court in a decision interpreting the Constitution, particularly section 9, Article VIII, has held that judicial officers are exempt from payment of income tax on their salaries, because the collection thereof was a diminution of such salaries, specifically prohibited by the Constitution. Now comes the Legislature and in section 13, Republic Act No. 590, says that "no salary wherever received by any public officer of the Republic (naturally including a judicial officer) shall be considered as exempt from the income tax," and proceeds to declare that payment of said income tax is not a diminution of his compensation. Can the Legislature validly do this? May the Legislature lawfully declare the collection of income tax on the salary of a public official,

specially a judicial officer, not a decrease of his salary, after the Supreme Court has found and decided otherwise? To determine this question, we shall have to go back to the fundamental principles regarding separation of powers. Under our system of constitutional government, the Legislative department is assigned the power to make and enact laws. The Executive department is charged with the execution of carrying out of the provisions of said laws. But the interpretation and application of said laws belong exclusively to the Judicial department. And this authority to interpret and apply the laws extends to the Constitution. Before the courts can determine whether a law is constitutional or not, it will have to interpret and ascertain the meaning not only of said law, but also of the pertinent portion of the Constitution in order to decide whether there is a conflict between the two, because if there is, then the law will have to give way and has to be declared invalid and unconstitutional. Defining and interpreting the law is a judicial function and the legislative branch may not limit or restrict the power granted to the courts by the Constitution. (Bandy vs. Mickelson et al., 44N. W., 2nd 341, 342.) When it is clear that a statute transgresses the authority vested in the legislature by the Constitution, it is the duty of the courts to declare the act unconstitutional because they cannot shrink from it without violating their oaths of office. This duty of the courts to maintain the Constitution as the fundamental law of the state is imperative and unceasing; and, as Chief Justice Marshall said, whenever a statute is in violation of the fundamental law, the courts must so adjudge and thereby give effect to the Constitution. Any other course would lead to the destruction of the Constitution. Since the question as to the

constitutionality of a statute is a judicial matter, the courts will not decline the exercise of jurisdiction upon the suggestion that action might be taken by political agencies in disregard of the judgment of the judicial tribunals. (11 Am. Jur., 714-715.) Under the American system of constitutional government, among the most important functions in trusted to the judiciary are the interpreting of Constitutions and, as a closely connected power, the determination of whether laws and acts of the legislature are or are not contrary to the provisions of the Federal and State Constitutions. (11 Am. Jur., 905.). By legislative fiat as enunciated in section 13, Republic Act NO. 590, Congress says that taxing the salary of a judicial officer is not a decrease of compensation. This is a clear example of interpretation or ascertainment of the meaning of the phrase "which shall not be diminished during their continuance in office," found in section 9, Article VIII of the Constitution, referring to the salaries of judicial officers. This act of interpreting the Constitution or any part thereof by the Legislature is an invasion of the well-defined and established province and jurisdiction of the Judiciary. The rule is recognized elsewhere that the legislature cannot pass any declaratory act, or act declaratory of what the law was before its passage, so as to give it any binding weight with the courts. A legislative definition of a word as used in a statute is not conclusive of its meaning as used elsewhere; otherwise, the legislature would be usurping a judicial function in defining a term. (11 Am. Jur., 914, emphasis supplied)

The legislature cannot, upon passing a law which violates a constitutional provision, validate it so as to prevent an attack thereon in the courts, by a declaration that it shall be so construed as not to violate the constitutional inhibition. (11 Am. Jur., 919, emphasis supplied) We have already said that the Legislature under our form of government is assigned the task and the power to make and enact laws, but not to interpret them. This is more true with regard to the interpretation of the basic law, the Constitution, which is not within the sphere of the Legislative department. If the Legislature may declare what a law means, or what a specific portion of the Constitution means, especially after the courts have in actual case ascertain its meaning by interpretation and applied it in a decision, this would surely cause confusion and instability in judicial processes and court decisions. Under such a system, a final court determination of a case based on a judicial interpretation of the law of the Constitution may be undermined or even annulled by a subsequent and different interpretation of the law or of the Constitution by the Legislative department. That would be neither wise nor desirable, besides being clearly violative of the fundamental, principles of our constitutional system of government, particularly those governing the separation of powers. So much for the constitutional aspect of the case. Considering the practical side thereof, we believe that the collection of income tax on a salary is an actual and evident diminution thereof. Under the old system where the in-come tax was paid at the end of the year or sometime thereafter, the decrease may not be so apparent and clear. All that the official who had previously received his full salary was called upon to do, was to fulfill his obligation and to exercise his privilege of paying his income tax on his salary. His salary fixed by law was received

by him in the amount of said tax comes from his other sources of income, he may not fully realize the fact that his salary had been decreased in the amount of said income tax. But under the present system of withholding the income tax at the source, where the full amount of the income tax corresponding to his salary is computed in advance and divided into equal portions corresponding to the number of pay-days during the year and actually deducted from his salary corresponding to each payday, said official actually does not receive his salary in full, because the income tax is deducted therefrom every payday, that is to say, twice a month. Let us take the case of Justice Endencia. As Associate Justice of the Court of Appeals, his salary is fixed at p12,000 a year, that is to say, he should receive P1,000 a month or P500 every payday, fifteenth and end of month. In the present case, the amount collected by the Collector of Internal Revenue on said salary is P1,744.45 for one year. Divided by twelve (months) we shall have P145.37 a month. And further dividing it by two paydays will bring it down to P72.685, which is the income tax deducted form the collected on his salary each half month. So, if Justice Endencia's salary as a judicial officer were not exempt from payment of the income tax, instead of receiving P500 every payday, he would be actually receiving P427.31 only, and instead of receiving P12,000 a year, he would be receiving but P10,255.55. Is it not therefor clear that every payday, his salary is actually decreased by P72.685 and every year is decreased by P1,744.45? Reading the discussion in the lower House in connection with House Bill No. 1127, which became Republic Act No. 590, it would seem that one of the main reasons behind the enactment of the law was the feeling among certain legislators that members of the Supreme Court should not enjoy any exemption and that as citizens, out of patriotism and love for their country, they should pay income tax on their salaries. It might be stated in this connection that the exemption is not

enjoyed by the members of the Supreme Court alone but also by all judicial officers including Justices of the Court of Appeals and judges of inferior courts. The exemption also extends to other constitutional officers, like the President of the Republic, the Auditor General, the members of the Commission on Elections, and possibly members of the Board of Tax Appeals, commissioners of the Public Service Commission, and judges of the Court of Industrial Relations. Compares to the number of all these officials, that of the Supreme Court Justices is relatively insignificant. There are more than 990 other judicial officers enjoying the exemption, including 15 Justices of the Court of Appeals, about 107 Judges of First Instance, 38 Municipal Judges and about 830 Justices of the Peace. The reason behind the exemption in the Constitution, as interpreted by the United States Federal Supreme Court and this Court, is to preserve the independence of the Judiciary, not only of this High Tribunal but of the other courts, whose present membership number more than 990 judicial officials. The exemption was not primarily intended to benefit judicial officers, but was grounded on public policy. As said by Justice Van Devanter of the United States Supreme Court in the case of Evans vs. Gore (253 U. S., 245): The primary purpose of the prohibition against diminution was not to benefit the judges, but, like the clause in respect of tenure, to attract good and competent men to the bench and to promote that independence of action and judgment which is essential to the maintenance of the guaranties, limitations and pervading principles of the Constitution and to the administration of justice without respect to person and with equal concern for the poor and the rich. Such being its purpose, it is to be construed, not as a private grant, but as a limitation imposed in the public interest; in other words, not restrictively, but in

accord with its spirit and the principle on which it proceeds. Having in mind the limited number of judicial officers in the Philippines enjoying this exemption, especially when the great bulk thereof are justices of the peace, many of them receiving as low as P200 a month, and considering further the other exemptions allowed by the income tax law, such as P3,000 for a married person and P600 for each dependent, the amount of national revenue to be derived from income tax on the salaries of judicial officers, were if not for the constitutional exemption, could not be large or substantial. But even if it were otherwise, it should not affect, much less outweigh the purpose and the considerations that prompted the establishment of the constitutional exemption. In the same case of Evans vs. Gore, supra, the Federal Supreme Court declared "that they (fathers of the Constitution) regarded the independence of the judges as far as greater importance than any revenue that could come from taxing their salaries. When a judicial officer assumed office, he does not exactly ask for exemption from payment of income tax on his salary, as a privilege . It is already attached to his office, provided and secured by the fundamental law, not primarily for his benefit, but based on public interest, to secure and preserve his independence of judicial thought and action. When we come to the members of the Supreme Court, this excemption to them is relatively of short duration. Because of the limited membership in this High Tribunal, eleven, and due to the high standards of experience, practice and training required, one generally enters its portals and comes to join its membership quite late in life, on the aver-age, around his sixtieth year, and being required to retire at seventy, assuming that he does not die or become incapacitated earlier, naturally he is not in a position to receive the benefit of exemption for long. It is rather to the justices of the peace that the exemption can give more benefit.

They are relatively more numerous, and because of the meager salary they receive, they can less afford to pay the income tax on it and its diminution by the amount of the income tax if paid would be real, substantial and onerous. Considering exemption in the abstract, there is nothing unusual or abhorrent in it, as long as it is based on public policy or public interest. While all other citizens are subject to arrest when charged with the commission of a crime, members of the Senate and House of Representatives except in cases of treason, felony and breach of the peace are exempt from arrest, during their attendance in the session of the Legislature; and while all other citizens are generally liable for any speech, remark or statement, oral or written, tending to cause the dishonor, discredit or contempt of a natural or juridical person or to blacken the memory of one who is dead, Senators and Congressmen in making such statements during their sessions are extended immunity and exemption. And as to tax exemption, there are not a few citizens who enjoy this exemption. Persons, natural and juridical, are exempt from taxes on their lands, buildings and improvements thereon when used exclusively for educational purposes, even if they derive income therefrom. (Art. VI, Sec. 22 [3].) Holders of government bonds are exempted from the payment of taxes on the income or interest they receive therefrom (sec. 29 (b) [4], National Internal Revenue Code as amended by Republic Act No. 566). Payments or income received by any person residing in the Philippines under the laws of the United States administered by the United States Veterans Administration are exempt from taxation. (Republic Act No. 360). Funds received by officers and enlisted men of the Philippine Army who served in the Armed Forces of the United States, allowances earned by virtue of such services corresponding to the taxable years 1942 to 1945, inclusive, are exempted from income tax. (Republic Act No. 210). The payment of wages and

allowances of officers and enlisted men of the Army Forces of the Philippines sent to Korea are also exempted from taxation. (Republic Act No. 35). In other words, for reasons of public policy and public interest, a citizen may justifiably by constitutional provision or statute be exempted from his ordinary obligation of paying taxes on his income. Under the same public policy and perhaps for the same it not higher considerations, the framers of the Constitution deemed it wise and necessary to exempt judicial officers from paying taxes on their salaries so as not to decrease their compensation, thereby insuring the independence of the Judiciary. In conclusion we reiterate the doctrine laid down in the case of Perfecto vs. Meer, supra, to the effect that the collection of income tax on the salary of a judicial officer is a diminution thereof and so violates the Constitution. We further hold that the interpretation and application of the Constitution and of statutes is within the exclusive province and jurisdiction of the Judicial department, and that in enacting a law, the Legislature may not legally provide therein that it be interpreted in such a way that it may not violate a Constitutional prohibition, thereby tying the hands of the courts in their task of later interpreting said statute, specially when the interpretation sought and provided in said statute runs counter to a previous interpretation already given in a case by the highest court of the land. In the views of the foregoing considerations, the decision appealed from is hereby affirmed, with no pronouncement as to costs. Pablo, Bengzon, Padilla, Tuason, Reyes, and Labrador, JJ., concur.

Separate Opinions BAUTISTA ANGELO, J., concurring: Without expressing any opinion on the doctrine laid down by this Court in the case of Perfecto vs. Meer, G. R. No. L-2314, in view of the part I had in that case as former Solicitor General, I wish however to state that I concur in the opinion of the majority to the effect that section 13, Republic Act No. 590, in so far as it provides that taxing of the salary of a judicial officer shall be considered "not to be a diminution of his compensation fixed by the Constitution or by law", constitutes an invasion of the province and jurisdiction of the judiciary. In this sense, I am of the opinion that said section is null and void, it being a transgression of the fundamental principle underlying the separation of powers.

PARAS, C.J., concurring and dissenting: I dissent for the same reasons stated in the dissenting opinion of Mr. Justice Ozaeta in Perfecto vs. Meer, 85 Phil., 552, in which I concurred. But I disagree with the majority in ruling that no legislation may provide that it be held valid although against a provision of the Constitution. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-27833 April 18, 1969

IN THE MATTER OF PETITION FOR DECLARATORY RELIEF RE CONSTITUTIONALITY OF REPUBLIC ACT 4880. ARSENIO GONZALES and FELICISIMO R. CABIGAO, petitioners, vs. COMMISSION ON ELECTIONS, respondent. F. R. Cabigao in his own behalf as petitioner. B. F. Advincula for petitioner Arsenio Gonzales. Ramon Barrios for respondent Commission on Elections. Sen. Lorenzo Taada as amicus curiae. FERNANDO, J.: A statute designed to maintain the purity and integrity of the electoral process by Congress calling a halt to the undesirable practice of prolonged political campaign bringing in their wake serious evils not the least of which is the ever increasing cost of seeking public office, is challenged on constitutional grounds. More precisely, the basic liberties of free speech and free press, freedom of assembly and freedom of association are invoked to nullify the act. Thus the question confronting this Court is one of transcendental significance. It is faced with the reconciliation of two values esteemed highly and cherished dearly in a constitutional democracy. One is the freedom of belief and of expression availed of by an individual whether by himself alone or in association with others of similar persuasion, a goal that occupies a place and to none in the legal hierarchy. The other is the safeguarding of the equally vital right of suffrage by a prohibition of the early nomination of candidates and the limitation of the period of election campaign or partisan political activity, with the hope that the time-consuming efforts, entailing huge expenditures of funds and involving the risk of bitter rivalries that may end in

violence, to paraphrase the explanatory note of the challenged legislation, could be devoted to more fruitful endeavors. The task is not easy, but it is unavoidable. That is of the very essence of judicial duty. To paraphrase a landmark opinion, 1 when we act in these matters we do so not on the assumption that to us is granted the requisite knowledge to set matters right, but by virtue of the responsibility we cannot escape under the Constitution, one that history authenticates, to pass upon every assertion of an alleged infringement of liberty, when our competence is appropriately invoked. This then is the crucial question: Is there an infringement of liberty? Petitioners so alleged in his action, which they entitled Declaratory Relief with Preliminary Injunction, filed on July 22, 1967, a proceeding that should have been started in the of Court of First Instance but treated by this Court as one of prohibition in view of the seriousness and the urgency of the constitutional issue raised. Petitioners challenged the validity of two new sections now included in the Revised Election Code, under Republic Act No. 4880, which was approved and took effect on June 17, 1967, prohibiting the too early nomination of candidates 2 and limiting the period of election campaign or partisan political activity. 3 The terms "candidate" and "election campaign" or "partisan political activity" are likewise defined. The former according to Act No. 4880 "refers to any person aspiring for or seeking an elective public office regarded of whether or not said person has already filed his certificate of candidacy or has been nominated by any political party as its candidate." "Election campaign" or "partisan political activity" refers to acts designed to have a candidate elected or not or promote the candidacy of a person or persons to a public office." Then the acts were specified. There is a proviso that simple expression of opinion and thoughts concerning the election shall not be

considered as part of an election campaign. There is the further proviso that nothing stated in the Act "shall be understood to prevent any person from expressing his views on current political problems or issues, or from mentioning the names of the candidates for public office whom he supports." 4 Petitioner Cabigao was, at the time of the filing 6f the petition, an incumbent councilor in the 4th District of Manila and the Nacionalista Party official candidate for Vice-Mayor of Manila to which he was subsequently elected on November 11, 1967; petitioner Gonzales, on the other hand, is a private individual, a registered voter in the City of Manila and a political leader of his co-petitioner. It is their claim that "the enforcement of said Republic Act No. 4880 in question [would] prejudice [their] basic rights..., such as their freedom of speech, their freedom of assembly and their right to form associations or societies for purpose not contrary to law, guaranteed under the Philippine Constitution," and that therefore said act is unconstitutional. After invoking anew the fundamental rights to free speech, free press, freedom of association and freedom of assembly with a citation of two American Supreme Court decisions, 5 they asserted that "there is nothing in the spirit or intention of the law that would legally justify its passage and [enforcement] whether for reasons of public policy, public order or morality, and that therefore the enactment of Republic Act [No.] 4880 under, the guise of regulation is but a clear and simple abridgment of the constitutional rights of freedom of speech, freedom of assembly and the right to form associations and societies for purposes not contrary to law, ..." There was the further allegation that the nomination of a candidate and the fixing of period of election campaign are matters of political expediency and convenience which only political parties can regulate or curtail by and among themselves through self-restraint or mutual understanding or

agreement and that the regulation and limitation of these political matters invoking the police power, in the absence of clear and present danger to the state, would render the constitutional rights of petitioners meaningless and without effect. To the plea of petitioners that after hearing, Republic Act No. 4880 be declared unconstitutional, null and void, respondent Commission on Elections, in its answer filed on August 1, 1967, after denying the allegations as to the validity of the act "for being mere conclusions of law, erroneous at that," and setting forth special affirmative defenses, procedural and substantive character, would have this Court dismiss the petition. Thereafter the case was set for hearing on August 3, 1967. On the same date a resolution was passed by us to the following effect: "At the hearing of case L-27833 (Arsenio Gonzales, et al. vs. Commission on Elections), Atty. F. Reyes Cabigao appeared for the petitioners and Atty. Ramon Barrios appeared for the respondent and they were given a period of four days from today within which to submit, simultaneously,, their respective memorandum in lieu of oral argument." On August 9, 1967, another resolution, self-explanatory in character, came from this Court. Thus: "In ease G.R. No. L27833 (Arsenio Gonzales, et al. vs. Commission on Elections), the Court, with eight (8) Justice present, having deliberated on the issue of the constitutionality of Republic Act No. 4880; and a divergence of views having developed among the Justices as to the constitutionality of section 50-B, pars. (c), (d) and (e) of the Revised Election Code: considering the Constitutional provision that "no treaty or law may be declared unconstitutional without the concurrence of two-thirds of all the members of the (Supreme) Court' (sec. 10, Art, VII), the Court

[resolved] to defer final voting on the issue until after the return of the Justices now on official leave." The case was then reset for oral argument. At such hearing, one of the co-petitioners, now Vice-Mayor Felicisimo Cabigao of the City of Manila acting as counsel, assailed the validity of the challenged legislation relying primarily on American Supreme Court opinion that warn against curtailment in whatever guise or form of the cherished freedoms of expression, of assemble and of association, all embraced in the First Amendment of the United States Constitution. Respondent Commission on Elections was duly represented by Atty. Ramon Barrios. Senator Lorenzo M. Taada was asked to appear as amicus curiae. That he did, arguing most impressively with a persuasive exposition of the existence of undeniable conditions that imperatively called for regulation of the electoral process and with full recognition that Act No. 4880 could indeed be looked upon as a limitation on the preferred rights of speech and press, of assembly and of association. He did justify its enactment however under the clear and present danger doctrine, there being the substantive evil of elections, whether for national or local officials, being debased and degraded by unrestricted campaigning, excess of partisanship and undue concentration in politics with the loss not only of efficiency in government but of lives as well. The matter was then discussed in conference, but no final action was taken. The divergence of views with reference to the paragraphs above mentioned having continued, on Oct. 10, 1968, this Court, by resolution, invited certain entities to submit memoranda as amici curiae on the question of the validity of R.A. Act No. 4880. The Philippine Bar Association, the Civil Liberties Union, the U.P. Law Center and the U.P. Women Lawyers' Circle were included, among them. They did

file their respective memoranda with this Court and aided it in the consideration of the constitutional issues involved. 1. In the course of the deliberations, a serious procedural objection was raised by five members of the Court. 6 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." 7 It may likewise be added that the exceptional character of the situation that confronts us, the paramount public interest, and the undeniable necessity for a 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. There is another procedural obstacle raised by respondent to be hurdled. It is not insuperable. It is true that ordinarily, a party who impugns the validity of a statute or ordinance must have a substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement. 8 Respondent cannot see such interest as

being possessed by petitioners. It may indicate the clarity of vision being dimmed, considering that one of the petitioners was a candidate for an elective position. Even if such were the case, however, the objection is not necessarily fatal. In this jurisdiction, the rule has been sufficiently relaxed to allow a taxpayer to bring an action to restrain the expenditure of public funds through the enforcement of an invalid or unconstitutional legislative measure. 9 2. In the answer of the respondent as well as its memorandum, stress was laid on Republic Act No. 4880 as an exercise of the police power of the state, designed to insure a free, orderly and honest election by regulating "conduct which Congress has determined harmful if unstrained and carried for a long period before elections it necessarily entails huge expenditures of funds on the part of the candidates, precipitates violence and even deaths, results in the corruption of the electorate, and inflicts direful consequences upon public interest as the vital affairs of the country are sacrificed to purely partisan pursuits." Evidently for respondent that would suffice to meet the constitutional questions raised as to the alleged infringement of free speech, free press, freedom of assembly and 'freedom' of association. Would it were as simple as that? An eloquent excerpt from a leading American decision 10 admonishes though against such a cavalier approach. "The case confronts us again with the duty our system places on this Court to say where the individual's, freedom ends the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual. presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment.... That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions. And it is the character of the right, not of

the limitation, which determines what standard governs the choice..." Even a leading American State court decision on a regulatory measure dealing with elections, cited in the answer of respondent, militates against a stand minimizing the importance and significance of the alleged violation of individual rights: "As so construed by us, it has not been made to appear that section 8189, Comp. Gen. Laws, section 5925, Rev. Gen. St., is on its face violative of any provision of either the state or Federal Constitution on the subject of free speech or liberty of the press, nor that its operation is in any wise subversive of any one's constitutional liberty." 11 Another leading State decision is much more emphatic: "Broad as the power of the legislature is with respect to regulation of elections, that power is not wholly without limitation. Under the guise of regulating elections, the legislature may not deprive a citizen of the right of trial by jury. A person charged with its violation may not be compelled to give evidence against himself. If it destroys the right of free speech, it is to that extent void." 12 The question then of the alleged violation of Constitutional rights must be squarely met.lawphi1.nt 3. Now as to the merits. A brief resume of the basic rights on which petitioners premise their stand that the act is unconstitutional may prove illuminating. The primacy, the high estate accorded freedom of expression is of course a fundamental postulate of our constitutional system. No law shall be passed abridging the freedom of speech or of the press .... 13 What does it embrace? At the very least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest without censorship or punishment. 14 There is to be then no previous restraint on the communication of views or

subsequent liability whether in libel suits, 15 prosecution for sedition, 16 or action for damages, 17 or contempt proceedings 18 unless there be a clear and present danger of substantive evil that Congress has a right to prevent. The vital need in a constitutional democracy for freedom of expression is undeniable whether as a means of assuring individual self-fulfillment, of attaining the truth, of assuring participation by the people in social including political decisionmaking, and of maintaining the balance between stability and change. 19 The trend as reflected in Philippine and American decisions is to recognize the broadcast scope and assure the widest latitude to this constitutional guaranty. It represents a profound commitment to the principle that debate of public issue should be uninhibited, robust, and wide-open. 20 It is not going too far, according to another American decision, to view the function of free speech as inviting dispute. "It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." 21 Freedom of speech and of the press thus means something more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, to take refuge in the existing climate of opinion on any matter of public consequence. So atrophied, the right becomes meaningless. The right belongs as well, if not more, for those who question, who do not conform, who differ. To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us. 22 So with Emerson one may conclude that "the theory of freedom of expression involves more than a technique for arriving at better social judgments through democratic procedures. It comprehends a vision of society, a faith and a whole way of life. The theory grew out of an age that was awakened and invigorated by the idea of new society in which

man's mind was free, his fate determined by his own powers of reason, and his prospects of creating a rational and enlightened civilization virtually unlimited. It is put forward as a prescription for attaining a creative, progressive, exciting and intellectually robust community. It contemplates a mode of life that, through encouraging toleration, skepticism, reason and initiative, will allow man to realize his full potentialities. It spurns the alternative of a society that is tyrannical, conformist, irrational and stagnant." 23 From the language of the specified constitutional provision, it would appear that the right is not susceptible of any limitation. No law may be passed abridging the freedom of speech and of the press. The realities of life in a complex society preclude however a literal interpretation. Freedom of expression is not an absolute. It would be too much to insist that at all times and under all circumstances it should remain unfettered and unrestrained. There are other societal values that press for recognition. How is it to be limited then? This Court spoke, in Cabansag v. Fernandez; 24 of two tests that may supply an acceptable criterion for permissible restriction. Thus: "These are the 'clear and present danger' rule and the 'dangerous tendency' rule. The first, as interpreted in a number of cases, means that the evil consequence of the comment or utterance must be extremely serious and the degree of imminence extremely high' before the utterance can be punished. The danger to be guarded against is the 'substantive evil' sought to be prevented." It has the advantage of establishing according to the above decision "a definite rule in constitutional law. It provides the criterion as to what words may be public established." The Cabansag case likewise referred to the other test, the "dangerous tendency" rule and explained it thus: "If the words uttered create a dangerous tendency which the state

has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent. We posed the issue thus: "Has the letter of Cabansag created a sufficient danger to a fair administration of justice? Did its remittance to the PCAC create a danger sufficiently imminent to come under the two rules mentioned above?" The choice of this Court was manifest and indisputable. It adopted the clear and present danger test. As a matter of fact, in an earlier decision, Primicias v. Fugoso, 25 there was likewise an implicit acceptance of the clear and present danger doctrine. Why repression is permissible only when the danger of substantive evil is present is explained by Justice Branders thus: ... the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence." 26 For him the apprehended evil must be "relatively serious." For "[prohibition] of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society." Justice Black would go further. He would require that the substantive evil be "extremely serious." 27 Only thus may there be a realization of the ideal envisioned by Cardozo: "There shall be no compromise of the freedom to think one's thoughts and speak them, except at those extreme borders where thought merges into action." 28 It received its original formulation from Holmes. Thus: "The question in every

case is whether the words used in such circumstances and of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." 29 This test then as a limitation on freedom of expression is justified by the danger or evil a substantive character that the state has a right to prevent. Unlike the dangerous tendency doctrine, the danger must not only be clear but also present. The term clear seems to point to a causal connection with the danger of the substantially evil arising from the utterance questioned. Present refers to the time element. It used to be identified with imminent and immediate danger. The danger must not only be probable but very likely inevitable. 4. How about freedom of assembly? The Bill of Rights as thus noted prohibits abridgment by law of freedom of speech or of the press. It likewise extends the same protection to the right of the people peaceably to assemble. As was pointed out by Justice Malcolm in the case of United States v. Bustos, 30 this right is a necessary consequence of our republican institution and complements the right of free speech. Assembly means a right on the part of citizens to meet peaceably for consultation in respect to public affairs. From the same Bustos opinion: "Public policy, the welfare of society and orderly administration of government have demanded protection for public opinion." To paraphrase the opinion of Justice Rutledge speaking for the majority in Thomas v. Collins,31 it was not by accident or coincidence that the rights to freedom of speech and of the press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these rights while not identical are inseparable. They are cognate rights and the assurance afforded by the clause of this section of the Bill of Rights wherein they are contained, applies to all. As emphatically put in the leading

case of United States v. Cruikshank, 32 "the very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for redress of grievances." As in the case of freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that Congress has a right to prevent. 5. Our Constitution likewise recognizes the freedom to form association for purposes not contrary to law. 33 With or without a constitutional provision of this character, it may be assumed that the freedom to organize or to be a member of any group or society exists. With this explicit provision, whatever doubts there may be on the matter are dispelled. Unlike the cases of other guarantee which are mostly American in origin, this particular freedom has an indigenous cast. It can trace its origin to the Malolos Constitution. In the United States, in the absence of an explicit provision of such character, it is the view of Justice Douglas that it is primarily the first amendment of her Constitution, which safeguards freedom of speech and of the press, of assembly and of petition "that provides [associations] with the protection they need if they are to remain viable and continue to contribute to our Free Society." 34 He adopted the view of De Tocqueville on the importance and the significance of the freedom to associate. Thus: "The most natural privilege of man, next to the right of acting for himself, is that of combining his exertions with those of his fellow creatures and of acting in common with them. The right of association therefore appears to me almost inalienable in its nature as the right of personal liberty. No legislator can attack it without impairing the foundation of society." 35

There can be no dispute as to the soundness of the above observation of De Tocqueville. Since man lives in social it would be a barren existence if he could not freely associate with others of kindred persuasion or of congenial frame of mind. As a matter of fact, the more common form of associations may be likely to be fraternal, cultural, social or religious. Thereby, for almost everybody, save for those exceptional few who glory in aloofness and isolation life is enriched and becomes more meaningful. In a sense, however, the stress on this freedom of association should be on its political significance. If such a right were non-existent then the likelihood of a one-party government is more than a possibility. Authoritarianism may become unavoidable. Political opposition will simply cease to exist; minority groups may be outlawed, constitutional democracy as intended by the Constitution may well become a thing of the past. Political parties which, as is originally the case, assume the role alternately of being in the majority or in the minority as the will of the electorate dictates, will lose their constitutional protection. It is undeniable therefore, that the utmost scope should be afforded this freedom of association. It is indispensable not only for its enhancing the respect that should be accorded a human personality but equally so for its assurance that the wishes of any group to oppose whatever for the moment is the party in power and with the help of the electorate to set up its own program of government would not be nullified or frustrated. To quote from Douglas anew: "Justice Frankfurter thought that political and academic affiliations have a preferred position under the due process version of the First Amendment. But the associational rights protected by the First Amendment are in my view much broader and cover the entire spectrum in political ideology as

well as in art, in journalism, in teaching, and in religion. In my view, government can neither legislate with respect to nor probe the intimacies of political, spiritual, or intellectual relationships in the myriad of lawful societies and groups, whether popular or unpopular, that exist in this country." 36 Nonetheless, the Constitution limits this particular freedom in the sense that there could be an abridgment of the right to form associations or societies when their purposes are "contrary to law". How should the limitation "for purposes not contrary to law" be interpreted? It is submitted that it is another way of expressing the clear and present danger rule for unless an association or society could be shown to create an imminent danger to public safety, there is no justification for abridging the right to form association societies.37 As was so aptly stated: "There is no other course consistent with the Free Society envisioned by the First Amendment. For the views a citizen entertains, the beliefs he harbors, the utterances he makes, the ideology he embraces, and the people he associates with are no concern to government until and unless he moves into action. That article of faith marks indeed the main difference between the Free Society which we espouse and the dictatorships both on the Left and on the Right." 38 With the above principles in mind, we now consider the validity of the prohibition in Republic Act No. 4880 of the too early nomination of candidates and the limitation found therein on the period of election campaign or partisan political activity alleged by petitioners to offend against the rights of free speech, free press, freedom of assembly and freedom of association. In effect what are asked to do is to declare the act void on its face evidence having been introduced as to its actual operation. There is respectable authority for the court having the power to so act. Such fundamental liberties are accorded so high a place in our constitutional scheme that any alleged infringement manifest in the wording of statute cannot be allowed to pass unnoticed. 39

In considering whether it is violative of any of the above rights, we cannot ignore of course the legislative declaration that its enactment was in response to a serious substantive evil affecting the electoral process, not merely in danger of happening, but actually in existence, and likely to continue unless curbed or remedied. To assert otherwise would be to close one's eyes to the realities of the situation. Nor can we ignore the express legislative purpose apparent in the proviso "that simple expressions of opinion and thoughts concerning the election shall not be considered as part of an election campaign," and in the other proviso "that nothing herein stated shall be understood to prevent any person from expressing his views on current political problems or issues, or from mentioning the names of the candidates for public office whom he supports." Such limitations qualify the entire provision restricting the period of an election campaign or partisan political activity. The prohibition of too early nomination of candidates presents a question that is not too formidable in character. According to the act: "It shall be unlawful for any political party political committee, or political group to nominate candidates for any elective public officio voted for at large earlier than one hundred and fifty days immediately preceding an election, and for any other elective public, office earlier than ninety days immediately preceding an election." 40 The right of association is affected. Political parties have less freedom as to the time during which they may nominate candidates; the curtailment is not such, however, as to render meaningless such a basic right. Their scope of legitimate activities, save this one, is not unduly narrowed. Neither is there infringement of their freedom to assemble. They can do so, but not for such a purpose. We sustain in validity. We do so unanimously.

The limitation on the period of "election campaign" or "partisan political activity" calls for a more intensive scrutiny. According to Republic Act No. 4880: "It is unlawful for any person whether or not a voter or candidate, or for any group or association of persons whether or not a political party or political committee, to engage in an election campaign or partisan political activity except during the period of one hundred twenty days immediately preceding an election involving a public office voted for at large and ninety days immediately preceding an election for any other elective public office. The term 'candidate' refers to any person aspiring for or seeking an elective public office, regardless of whether or not said person has already filed his certificate of candidacy or has been nominated by any political party as its candidate. The term 'election campaign' or 'partisan political activity' refers to acts designed to have a candidate elected or not or promote the candidacy of a person or persons to a public office ..." If that is all there is to that provision, it suffers from the fatal constitutional infirmity of vagueness and may be stricken down. What other conclusion can there be extending as it does to so wide and all-encompassing a front that what is valid, being a legitimate exercise of press freedom as well as freedom of assembly, becomes prohibited? That cannot be done; such an undesirable eventuality, this Court cannot allow to pass. It is a well-settled principle that stricter standard of permissible statutory vagueness may be applied to a statute having inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser.41 Where the statutory provision then operates to inhibit the exercise of individual freedom affirmatively protected by the Constitution, the imputation of vagueness sufficient to invalidate the statute is inescapable. 42 The language of Justice Douglas, both

appropriate and vigorous, comes to mind: "Words which are vague and fluid ... may be as much of a trap for the innocent as the ancient laws of Caligula." 43 Nor is the reason difficult to discern: ."These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions." 44 7. The constitutional objections are thus formidable. It cannot be denied that the limitations thus imposed on the constitutional rights of free speech and press, of assembly, and of association cut deeply, into their substance. This on the one hand. On the other, it cannot be denied either that evils substantial in character taint the purity of the electoral process. There can be under the circumstances then no outright condemnation of the statute. It could not be said to be unwarranted, much less arbitrary. There is need for refraining from the outright assumption that the constitutional infirmity is apparent from a mere reading thereof. For under circumstances that manifest abuses of the gravest character, remedies much more drastic than what ordinarily would suffice would indeed be called for. The justification alleged by the proponents of the measures weighs heavily with the members of the Court, though in varying degrees, in the appraisal of the aforesaid restrictions to which such precious freedoms are subjected. They are not unaware of the clear and present danger that calls for measures that may bear heavily on the exercise of the cherished rights of expression, of assembly, and of association. This is not to say, that once such a situation is found to exist there is no limit to the allowable limitations on such constitutional rights. The clear and present danger doctrine

rightly viewed requires that not only should there be an occasion for the imposition of such restrictions but also that they be limited in scope. There are still constitutional questions of a serious character then to be faced. The practices which the act identifies with "election campaign" or "partisan political activity" must be such that they are free from the taint of being violative of free speech, free press, freedom of assembly, and freedom of association. What removes the sting from constitutional objection of vagueness is the enumeration of the acts deemed included in the terms "election campaign" or "partisan political activity." They are: "(a) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a party or candidate; (b) holding political conventions, caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate or party;(c) making speeches, announcements or commentaries or holding interviews for or against the election or any party or candidate for public office; (d) publishing or distributing campaign literature or materials; (e) directly or indirectly soliciting votes and/or undertaking any campaign or propaganda for or against any party; (f) giving, soliciting, or receiving contributions for election campaign purposes, either directly or indirectly." 45 As thus limited the objection that may be raised as to vagueness has been minimized, if not totally set at rest. 46 8. This Court, with the aforementioned five Justices unable to agree, is of the view that no unconstitutional infringement exists insofar as the formation of organization, associations, clubs, committees, or other groups of persons for

the purpose of soliciting votes or undertaking any campaign or propaganda or both for or against a candidate or party is restricted 47 and that the prohibition against giving, soliciting, or receiving contribution for election purposes, either directly or indirectly, is equally free from constitutional infirmity. 48 The restriction on freedom of assembly as confined to holding political conventions, caucuses, conferences, meetings, rallies, parades or other similar assemblies for the purpose of soliciting votes or undertaking any campaign or propaganda or both for or against a candidate or party, 49 leaving untouched all other legitimate exercise of such poses a more difficult question. Nevertheless, after a thorough consideration, and with the same Justices entertaining the opposite conviction, we reject the contention that it should be annulled. Candor compels the admission that the writer of this opinion suffers from the gravest doubts. For him, such statutory prescription could very well be within the outermost limits of validity, beyond which lies the abyss of unconstitutionality. The other acts, likewise deemed included in "election campaign" or "partisan political activity" tax to the utmost the judicial predisposition to view with sympathy legislative efforts to regulate election practices deemed inimical, because of their collision with the preferred right of freedom of expression. From the outset, such provisions did occasion divergence of views among the members of the Court. Originally only a minority was for their being adjudged as invalid. It is not so. any more. 50 This is merely to emphasize that the scope of the curtailment to which freedom of expression may be subjected is not foreclosed by the recognition of the existence of a clear and present danger of a substantive evil, the debasement of the electoral process.

The majority of the Court is thus of the belief that the solicitation or undertaking of any campaign or propaganda whether directly or indirectly, by an individual, 51 the making of speeches, announcements or commentaries or holding interview for or against the election for any party or candidate for public office, 52 or the publication or distribution of campaign literature or materials, 53 suffer from the corrosion of invalidity. It lacks however one more affirmative vote to call for a declaration of unconstitutionality. This is not to deny that Congress was indeed called upon to seek remedial measures for the far-from-satisfactory condition arising from the too-early nomination of candidates and the necessarily prolonged, political campaigns. The direful consequences and the harmful effects on the public interest with the vital affairs of the country sacrificed many a time to purely partisan pursuits were known to all. Moreover, it is no exaggeration to state that violence and even death did frequently occur because of the heat engendered by such political activities. Then, too, the opportunity for dishonesty and corruption, with the right to suffrage being bartered, was further magnified. Under the police power then, with its concern for the general welfare and with the commendable aim of safeguarding the right of suffrage, the legislative body must have felt impelled to impose the foregoing restrictions. It is understandable for Congress to believe that without the limitations thus set forth in the challenged legislation, the laudable purpose of Republic Act No. 4880 would be frustrated and nullified. Whatever persuasive force such approach may command failed to elicit the assent of a majority of the Court. This is not to say that the conclusion reached by the minority that the above poisons of the statute now assailed has passed the constitutional test is devoid of merit.

It only indicates that for the majority, the prohibition of any speeches, announcements or commentaries, or the holding of interviews for or against the election of any party or candidate for public office and the prohibition of the publication or distribution of campaign literature or materials, against the solicitation of votes whether directly or indirectly, or the undertaking of any campaign literature or propaganda for or against any candidate or party is repugnant to a constitutional command. To that extent, the challenged statute prohibits what under the Constitution cannot by any law be abridged. More specifically, in terms of the permissible scope of legislation that otherwise could be justified under the clear and present danger doctrine, it is the consideration opinion of the majority, though lacking the necessary vote for an adjudication of invalidity, that the challenged statute could have been more narrowly drawn and the practices prohibited more precisely delineated to satisfy the constitutional requirements as to a valid limitation under the clear and present danger doctrine. In a 1968 opinion, the American Supreme Court made clear that the absence of such reasonable and definite standards in a legislation of its character is fatal. 54 Where, as in the case of the above paragraphs, the majority of the Court could discern "an over breadth that makes possible oppressive or capricious application" 55 of the statutory provisions, the line dividing the valid from the constitutionally infirm has been crossed. Such provisions offend the constitutional principle that "a governmental purpose constitutionally subject to control or prevent activities state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. 56 It is undeniable, therefore, that even though the governmental purposes be legitimate and substantial, they cannot be pursued by means that broadly stifle fundamental

personal liberties when the end can be more narrowly achieved. 57 For precision of regulation is the touchstone in an area so closely related to our most precious freedoms. 58 Under the circumstances then, a majority of the Court feels compelled to view the statutory provisions in question as unconstitutional on their face inasmuch as they appear to range too widely and indiscriminately across the fundamental liberties associated with freedom of the mind. 59 Such a conclusion does not find favor with the other members of the Court. For this minority group, no judgment of nullity insofar as the challenged sections are concerned is called for. It cannot accept the conclusion that the limitations thus imposed on freedom of expression vitiated by their latitudinarian scope, for Congress was not at all insensible to the problem that an all-encompassing coverage of the practices sought to be restrained would seriously pose. Such an approach finds support in the exposition made by the author of the measure, Senator Lorenzo M. Taada, appearing before us as amicus curiae. He did clearly explain that such provisions were deemed by the legislative body to be part and parcel of the necessary and appropriate response not merely to a clear and present danger but to the actual existence of a grave and substantive evil of excessive partisanship, dishonesty and corruption as well as violence that of late has invariably marred election campaigns and partisan political activities in this country. He did invite our attention likewise to the well-settled doctrine that in the choice of remedies for an admitted malady requiring governmental action, on the legislature primarily rests the responsibility. Nor should the cure prescribed by it, unless clearly repugnant to fundamental rights, be ignored or disregarded.

More than that, he would stress the two provisos already mentioned, precisely placed in the state as a manifestation of the undeniable legislative determination not to transgress the preferred freedom of speech, of press, of assembly and of association. It is thus provided: "That simple expressions or opinion and thoughts concerning the election shall not be considered as part of an election campaign [and that nothing in the Act] shall be understood to prevent any person from expressing his views on current political problems or issues, or from mentioning the names of the candidates for public office whom he supports. 60 If properly implemented then, as it ought to, the barrier to free, expression becomes minimal and far from unwarranted. For the minority of the Court, all of the above arguments possess sufficient persuasive force to blunt whatever cutting edge may be ascribed to the fears entertained that Congress failed to abide by what the Constitution commands as far as freedom of the mind and of association are concerned. It is its opinion that it would be premature to say the least, for a judgment of nullity of any provision found in Republic Act No. 4880. The need for adjudication arises only if in the implementation of the Act, there is in fact an unconstitutional application of its provisions. Nor are we called upon, under this approach, to anticipate each and every problem that may arise. It is time enough to consider it when there is in fact an actual, concrete case that requires an exercise of judicial power. 9. To recapitulate, we give due recognition to the legislative concern to cleanse, and, if possible, render spotless, the electoral process. There is full acceptance by the Court of the power of Congress, under narrowly drawn legislation to impose the necessary restrictions to what otherwise would be liberties traditionally accorded the widest scope and the utmost deference, freedom of speech and of

the press, of assembly, and of association. We cannot, however, be recreant to the trust reposed on us; we are called upon to safeguard individual rights. In the language of Justice Laurel: "This Court is perhaps the last bulwark of constitutional government. It shall not obstruct the popular will as manifested through proper organs... But, in the same way that it cannot renounce the life breathed into it by the Constitution, so may it not forego its obligation, in proper cases, to apply the necessary,..." 61 We recognize the wide discretion accorded Congress to protect vital interests. Considering the responsibility incumbent on the judiciary, it is not always possible, even with the utmost sympathy shown for the legislative choice of means to cure an admitted evil, that the legislative judgment arrived at, with its possible curtailment of the preferred freedoms, be accepted uncritically. There may be times, and this is one of them, with the majority, with all due reject to a coordinate branch, unable to extend their approval to the aforesaid specific provisions of one of the sections of the challenged statute. The necessary two-third vote, however, not being obtained, there is no occasion for the power to annul statutes to come into play. Such being the case, it is the judgment of this Court that Republic Act No. 4880 cannot be declared unconstitutional. WHEREFORE, the petition is dismissed and the writ of prayed for denied. Without costs. Concepcion, C.J., Reyes, J.B.L., Makalintal and Teehankee, JJ., concur in the result.

SANCHEZ, J., concurring and dissenting: Petitioners in the present case aim at striking down as violative of constitutional guarantees Republic Act 4880, the principal features of which are contained in its Sections 1, inserting Sections 50-A and 50-B between Sections, 50 and 51 of the Revised Election Code, reproduced herein as follows:1 SECTION 1. Republic Act Numbered One hundred and eighty, as amended, is hereby further amended by inserting new sections to be known as Sections 50-A and 50-B, between Sections 50 and 51 thereof, which shall read as follows: SEC. 50-A. Prohibition of too early nomination of Candidates. It shall be unlawful for any political party, Political Committee, or Political group to nominate candidates for any elective public office voted for a large earlier than one hundred and fifty days immediately preceding an election, and for any other elective public office earlier than ninety days immediately preceding an election. SEC 50-B. Limitation upon the period of Election Campaign or Partisan Political Activity. It is unlawful for any person whether or not a voter or candidate, or for any group or association of persons, whether or not a political party or political committee, to engage in an election campaign or partisan political activity except during the period of one hundred twenty days immediately preceding an election for any public office. The term "Candidate" refers to any person aspiring for or seeking an elective public office,

Separate Opinions

regardless of whether or not said person has already filed his certificate of candidacy or has been nominated by any political party as its candidate. The term "Election Campaign" or "Partisan Political Activity" refers to acts designed to have a candidate elected or not or promote the candidacy of a person or persons to a public office which shall include: (a) Forming Organizations, Associations, Clubs, Committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a party or candidate; (b) Holding political conventions, caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against any candidate or party; (c) Making speeches, announcements or commentaries or holding interviews for or against the election of any party or candidate for public office; (d) Publishing or distribution campaign literature or materials; (e) Directly or indirectly soliciting vote and/or undertaking any campaign or propaganda for or against any candidate or party; (f) Giving, soliciting, or receiving contributions for election campaign purposes, either directly

or indirectly: Provided, That simple expressions or 2 opinion and thoughts concerning the election shall not be considered as part of an election campaign: Provided, further, That nothing herein stated shall be understood to prevent any person from expressing his views on current political problems or issues, or from mentioning the names of the candidates for public office whom he supports. Appropriately to be stated right at the start is that violation of the above provisions is considered a serious election offense. The penalty is "imprisonment of not less than one (1) year and one (1) day but not more than five (5) years" with accompanying "disqualification to hold a public office and deprivation of the right of suffrage for not less than one (1) year but more than nine (9) years" and payment of costs. 3 1. The issue of constitutionality of R.A. 4880 again brings to the fore the eternally-warring concepts of individual liberty and state authority. Invalidity is pressed on the ground that the statute violates the rights of free speech and press, of peaceable assembly, and of association. 4 This Court is asked to rule that in the context of the ill-effects to be cured, the legislative remedy adopted, vis-a-vis the rights affected, does not meet what petitioners claim to be the rational basis test; that, on the contrary, the relief prescribed would more likely produce the very evils sought to be prevented. This necessitates a circumspect discussion of the issue. In proceeding the working assumption is that individual liberty is not absolute. Neither is state authority, inspite of its sweep, limitable. Fixed formulas and ready-made rules that

seek to balance these two concepts could well redeem one from the unnerving task of deciding which ought to prevail. It is at this point that we call to mind the principle that the relation between remedy and evil should be of such proximity that unless prohibited, conduct affecting these rights would create a "clear and present danger that will bring about substantive evils that Congress has a right to prevent."5 Withal doctrines which conceal behind the cloak of authoritative origin a tendency to muffle the demands of society, must pass the glaring light of contemporaneity. For, in the consideration of questions on constitutionality, one should remain receptive to the implication of John Marshall's resonant words that "it is a constitution we are expounding."6 Such authority here manifests itself in legislation intended as an answer to the strong public sentiment that politics is growing into a way of life, that political campaigns are becoming longer and more bitter. It is a result of legislative Appraisal that protracted election campaign is the root of undesirable conditions. Bitter rivalries precipitate violence and deaths. Huge expenditures of funds give deserving but poor candidates slim chances of winning. They constitute an inducement to graft to winning candidates already in office in order to recoup campaign expenses. Handouts doled out by and expected from candidates corrupt the electorate. Official duties and affairs of state are neglected by incumbent officials desiring to run for reelection. The life and health of candidates and their followers are endangered. People's energies are dissipated in political bickerings and long drawn-out campaigns. 7 Indeed, a drawn-out political campaign taxes the reservoir of patience and undermines respect of the electorate for democratic processes. Sustained and bilious political contests eat away even the veneer of civility among

candidates and their followers and transplant brute force into the arena. Such legislative appraisal, such ill-effects, then must constitute a principal lever by which one concept could win mastery over the other. R.A. 4880 is a police power legislation. It was enacted by virtue of the inherent power of Congress to legislate on matters affecting public interest and welfare, 8 as well as in pursuance of the constitutional policy of insuring a free, honest and orderly election. 9 Basically, the undefined scope of that power extends as far as the frontiers of public interest would advance. Fittingly, legislative determination of the breadth of public interest should Command respect. For, Congress is the constitutional body vested with the power to enact laws. Its representative composition induces judgment culled from the diverse regions of the country. Normally, this should assure that a piece of police legislation is a reflection of what public interest contemporaneously encompasses. 2. It is, however, postulated that the right of peaceable assembly is violated by the prohibition on holding political assemblies for a period lasting more than one year; that the right to form associations is contravened by forbidding, for the same period, the formation of political groups; that, finally, freedom of speech and of the press is unduly restricted by a legislative fiat against speeches, announcements, commentaries or interviews favorable or unfavorable to the election of any party or candidate, publishing or distributing campaign literature or materials, and directly or indirectly soliciting votes and/or under-taking any campaign or propaganda for or against any candidate or party, except during a number of days immediately preceding the election.

What has repeatedly been urged is the view that the underlying historic importance of the foregoing specified rights in democratic societies requires that the posture of defense against their invasion be firmer and more uncompromising than what may be exhibited under the general due process protection. 10 The absolute terms by which these specific rights are recognized in the Constitution justifies this conclusion. 11 And yet, sight should not be lost of the fact that Congress has made a determination that certain specific evils are traceable directly to protracted election, activities. Congress has found a solution to minimize, if not prevent, those evils by limiting the period of engaging in such activities. The proponents of validity would rely upon experience to deduce the connection between the cited evils and prolonged political campaign. By limiting the period of campaign, so they say, it is expected that the undesirable effects will be wiped out, at least, relieved to a substantial degree. This, of course, is largely an assumption. Congress we must stress, has put up an untried measure to solve the problematic situation. Deduction then is the only avenue open: for Congress, to determine the necessity for the law; for the Court, its validity. The possibility of its inefficaciousness is not remote. But so long as a remedy adopted by Congress, as far as can logically be assumed, measures up to the standard of validity, it stands. We give our imprimatur to Section 50-A. We may not tag as unconstitutional 50-B, and its subsections (a), (b) and (f). We fear no serious evil with their enforcement. They do not offend the constitutionally protected speech and press freedoms, and rights of peaceable assembly and association. The latter must yield. The proscriptions set forth in all of them are clear-cut, not open to reasonable doubt, nor easily

susceptible to unreasonable interpretation. Public interest and welfare authorize their incorporation into the statute books. 3. To this writer, however, the center of controversy is to be found in subsections (c), (d) and (e) of Section 50-B. Those who espouse validity assert that no undue restriction results because, by jurisprudence, solicitation and campaign are outside the ambit of protected speech. 12 But this rule, it would seem to us, has relevance only to commercial solicitation and campaign. There is no point here in delving into the desirability of equating, in social importance, political campaign with advertisements of gadgets and other commercial propaganda or solicitation. 13 For, the statute under consideration goes well beyond matters commonly regarded as solicitation and campaign. Suffice it to say that jurisprudence tends to incline liberally towards freedom of expression in any form when placed in juxtaposition with the regulatory power of the State. 14 Legislative history of the statute now before us indicates that what Congress intends to regulate are partisan activities and active campaigning. Campaigning, as defined by the sponsor of Senate Bill 209 in the Senate, is a "series of operations." This, evidently, must have been adopted from the dictionary meaning of campaign: a connected series of operations to bring about some desired result. The term "partisan political activity" has somehow acquired a more or less definite signification. It is not a new feature in Philippine political law. It has been regulated to stem dangers to specific state interests. The Constitution itself contains an injunction against civil service officers and employees from engaging directly or indirectly in partisan

political activity or taking part in any election except to vote. 15 The civil service law 16 and the Revised Election Code, 17 echo this absolute prohibition which is obviously aimed at the possible neglect of public service and its prostitution with partisan interests. The following are cited in the Civil Service Rules as examples of partisan political activity: candidacy for elective office; being a delegate to any political convention or member of any political committee or officer of any political club or other similar political organization; making speeches, canvassing or soliciting votes or political support in the interest of any party or candidate; soliciting or receiving contributions for political purposes either directly or indirectly; and becoming prominently identified with the success or failure of any candidate or candidates for election to public office. 18 In the context in which the terms "partisan political activity" and "election campaign" are taken together with the statutory purpose, the following from Justice Holmes would be particularly instructive: "Wherever the law draws a line there will be cases very near each other on opposite sides. The precise course of the line may be uncertain, but no one can come near it without knowing that he does so, if he thinks, and if he does so it is familiar to the criminal law to make him take the risk." 19 4. Perhaps if the phrases "election campaign" or "partisan political activity" were left to be explained by the general terms of the law as solely referring "to acts designed to have a candidate elected or not or promote the candidacy of a person or persons to a public office", it would be difficult to say that such prohibition is offensive to speech or press freedoms. But then the law itself sought to expand its meaning to include an area of prohibited acts relating to candidates and political parties, wider than an ordinary person would otherwise define them.

Specifically, discussion oral or printed is included among the prohibited conduct when done in the following manner (Section 50- B) (c) Making speeches, announcements or commentaries or holding interviews for or against the election of any party or candidate for public office: (d) Publishing or distributing campaign literature or materials; (e) Directly or indirectly soliciting votes and/or undertaking any campaign or propaganda for or against any candidate or party. Defined only as lawful discussion is the following: Provided. That simple expressions of opinion and thoughts concerning the election shall not be considered as part of an election campaign: Provided, further, That nothing herein stated shall be understood to prevent any person from expressing his views on current political problems or issues, or from mentioning the names of the candidates for public office whom he supports. The conduct involved in the discussion as to make it illegal is not clearly defined at all. The implication then is that what is prohibited is discussion which in the view of another may mean political campaign or partisan political activity. The speaker or writer becomes captive under the vigilant but whimsical senses of each listener or reader. His words acquire varying shades of forcefullness, persuasion and meaning to suit the convenience of those interpreting them. A position becomes solicitation. As admonition becomes a campaign or propaganda.

As worded in R.A. 4880, prohibited discussion could cover the entire spectrum of expression relating to can candidates and political parties. No discussion is safe. Every political discussion becomes suspect. No one can draw an indisputable dividing line between lawful and unlawful discussion. More so that statutory restraint falls upon any person whether or not a voter or candidate. Candidacy is not enjoined during the proscriptive period. A person may thus make public his intention to run for public office. So may an incumbent official profess his desire to run for reelection. The law therefore leaves open, especially to the electorate, the occasion if the temptation for making statements relating to a candidacy .The natural course is to comment upon or to discuss the merits of a candidate, his disqualifications, his opponents for public office, his accomplishments, his official or private conduct. For, it can hardly be denied that candidacy for public office is a matter of great public concern and interest. Yet, this normal reaction to discuss or comment is muzzled by an unqualified prohibition on announcements or commentaries or interviews for or against the election of any party or candidate, on publishing campaign literature, and on indirect solicitation and campaign or propaganda for or against any party or candidate. Even incumbent officials are stopped. Every appearance before the public, every solicitous act for the public welfare may easily become tainted. 5. Nor does the proviso offer any corresponding protection against uncertainty. "Simple expressions of opinion and thoughts concerning the election" and expression of "views on current political problems or issues" leave the reader to conjecture, to guesswork, upon the extent of protection offered, be it as to the nature of the utterance it simple expressions of opinion and thoughts") or the subject of the

utterance ("current political problems or issues"). The line drawn to distinguish unauthorized "political activity" or "election campaign" specifically, a speech designed to promote the candidacy of a person from a simple expression of opinion on current political problems is so tenuous as to be indistinguishable. 20 If we are to paraphrase Mr. Justice Holmes, then the thought should run something like this: The only difference between expression of an opinion and the endorsement of a candidate is "the speaker's enthusiasm for the result." 21 Only one area is certain. A person may only mention the candidate whom he supports. Beyond mentioning the name, it is no longer safe. But is it not unduly constricting the from of rational-minded-persons to back up their statements of support with reasons? The peculiarity of discussion, be it oral or printed, is that it carries with it varying degrees of "enthusiasm and inclination to persuade", 22 depending upon the listener or reader. It falls short of a partisan political activity when it is devoid of partisan interest in the sense that it is not made in the interest of a candidate or party. This is the only criterion for validity. But who is to decide this? And how? The law does not even require that there be an operation or a series of operations in order to measure up to an election campaign as it is commonly understood. In this way, the law may well become an instrument of harassment. Worse, it could lull the potential had defendant into a false sense of security. It then becomes a dragnet that may trap anyone who attempts to express a simple opinion on political issues. 6. More than this, the threat of punishment will continually hound a speaker who expounds his views on political issues. Because of its punitive provisions, the statute surely tends to restrict what one might, say his utterance be

misunderstood as "designed to promote the candidacy of a person." A person would be kept guessing at the precise limits of the permissible "simple expression". To play safe, he would be compelled to put reins on his words for fear that they may stray beyond the protected area of "simple expression". The offshoot could only be a continuous and pervasive restraint on all forms of discussion which might time within the purview of the statute. This thought is not new. It is underscibed in NAACP vs. Button, 371 U.S. 415, 9 L. ed, 405, in language expressive, thus. The objectionable quality of vagueness and over breadth does not depend upon absence of fair notice to a criminally accused or upon unchanneled delegation of legislative powers, but upon the danger of tolerating, in the area of first amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.... These freedoms are delicate and vulnerable as well as supremely precious in our society. The threat of sanctions way deter their exercise almost as the actual application of the sanctions. Because the first amendment freedoms need breathing space to survive, government may regulate in the area only With narrow specificity.23 It is thus in the self-imposed restraint that works in the minds of ordinary, law-abiding citizens that a vague statute becomes unjust. Because of the indefiniteness created in subsections (c), (d) and (e) of Section 50-B, they readily lend themselves to harsh application. Vagueness of the law enforcers. Arbitrary enforcement of the letter of the law by an expansive definition of election campaign or partisan political activity, should not be branded as improbable. For, political rivalries spawn persecution. The law then becomes an unwitting tool.

Discussion may be given a prima facie label as against the harassed. This is not altogether remote. To be sure, harassment and persecution are not unknown to the unscrupulous. 7. Those who favor validity find comfort in the theory that it is better for the meantime to leave the statute well enough alone. They say that it is preferable that courts of justice be allowed to hammer out the contours of the statute case by case. This may not, however, be entirely acceptable. To forego the question of constitutionality for now and take risks may not be the wiser move. As well advocated elsewhere. 24 a series of court prosecutions will a statute, still leaving uncertain other portion thereof. And then, in deciding whether or statute can be salvaged, one must not hedge and assume that when it is enforced in the be resolved in favor of upholding free speech and press. More important, there is the heavy penalty prescribed. A candidate, or any person for that matter, can unreasonably be saddled by court suits. Even if the accused were later to be declared innocent, thoroughly unnecessary is the burden of lawyers' fees, bail bonds and other expenses, not to say of energy to be consumed, effort to be expended, time to be spent, and the anxieties attendant in litigation. It cannot really be said that the courage to speak out, barring all risks, is an ordinary human trait. Timorous men should not grow in number. And yet, it would appear that this is the effect of the enforcement of the law. The constant guide should be the warning of Justice Brandeis "that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies." 25

As we analyze the import of the law, we come to the conclusion that subsections (c), (d) and (e) of Section 50-B inserted into the Revised Election Code by Republic Act 4880, heretofore transcribed, run smack against the constitutional guarantees of freedom of speech and of the press. Hence, this concurrence and dissent. CASTRO, J., dissenting: Presented for consideration and decision is the constitutionality of Section 50-A and 50-B of the Revised Election Code, which were inserted as amendatory provisions by Republic Act 4880. 1 These sections read in full as follows: SEC. 50-A. Prohibition of too early nomination of Candidates. It shall be unlawful for any political party, Political Committee or Political group to nominate candidates for any elective public office voted for at large earlier than one hundred and fifty days immediately preceding an election, and for any other elective public office earlier than ninety days immediately preceding an election. SEC. 50-B. Limitation upon the period of Election Campaign or Partisan Political Activity. It is unlawful for any person whether or not a voter or candidate, or for any group or association of persons, whether or not a political party or political committee, to engage in an election campaign or partisan political activity except during the period of one hundred twenty days immediately preceding an election involving a public office voted for at large and ninety days immediately preceding an election for any other elective public office.

The term "Candidate" refers to any person aspiring for or seeking an elective public officer, regardless of whether or not said has already filed his certificate of candidacy or has been nominated by any political candidate. The term "Election Campaign" or Partisan Political Activity refers to the acts designed to have a candidate elected or not or promote the candidacy of a person or persons to a public office which shall include: (a) Forming Organizations, Associations, Clubs, Committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a party or candidate; (b) Holding political conventions, caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or against a candidate or party; (c) Making speeches, announcements or commentaries or holding interviews for or against the election of any party or candidate for public office; (d) Publishing or distributing campaign literature or materials; (e) Directly or indirectly soliciting votes and/or undertaking any campaign or propaganda for or against any candidate or party;

(f) Giving, soliciting, or receiving contributions for election campaign purposes, either directly or indirectly. Provided, That simple expressions of opinion and thoughts concerning the election shall not be considered as part of an election campaign; Provided, further. That nothing herein stated shall understood to prevent any person from expressing his views on current political problems or issues, or from mentioning the names of the candidates for public office who he supports. Violation of these two section are classified as "serious election offenses" under Section 183 of the Revised Election Code, as amended R.A 4880, punishable with "imprisonment of not less than one year and one day but not more than five years" and "disqualification to hold a public office and deprivation of the right of suffrage for not less than one year but not more than nine years." 2 The basic purpose of R.A. 4880 is easily discenible. Congress felt the need of curtailing excessive and extravagant partisan political activities, especially during an election year, and, to this end, sought to impose limitations upon the times during which such activities may be lawfully pursued. The legislative concern over excessive political activities was expressed in the following terms in the explanatory note of Senate Bill 209, which finally came R.A. 4880: There is nothing basically wrong in engaging in an election campaign. Election campaign is indispensable part of election just as election is one of the most important fundamental requirements of popular government.

It is also during election campaign that the stands of prospective political parties on vital national and local issues are made known to the public, thereby guiding the enfranchised citizenry in the proper and appropriate expression of its sovereign will. Past experience, however, has brought to light some very disturbing consequences of protracted election campaigns. Because of prolonged exposure of both candidates and the people to political tension, what starts out at first as gentlemanly competition ends up into bitter rivalries precipitating violence and even deaths. Prolonged election campaigns necessarily entail huge expenditures of funds on the part of the candidates. Now, no matter how deserving and worthy he is, a poor man has a very slim chance of winning an election. Prolonged election campaigns indeed carry with it not only the specter of violence and death, not only the objectionable dominion of the rich in the political arena, but also the corruption of our electorate. We must adapt our democratic processes to the needs of the times. I The prohibitions introduced by R.A. 4880 purport to reach two types of activities, namely, (a) early nomination of candidates for elective public offices (Sec. 50-A), and (b) early election campaigns or partisan political activities (Sec. 50-B). The first prohibition is specifically directed against political parties, committees, and groups; the second prohibition is much more comprehensive in its intended reach, for it operates upon "any person whether or not a voter or a candidate" and "any group or association of persons whether or not a political party or political committee."

Section 50-B brings within the ambit of its proscription a wide range of activities. The catalogue of activity ties covered by the prohibition against early election campaigning embraces two distinguishable types of acts; (a) giving, soliciting or receiving contributions for election campaign purposes, either directly or indirectly; and (b) directly or indirectly soliciting votes or under-taking any campaign or propaganda for or against any candidate or party, whether by means of speech, publication, formation of organizations, or by holding conventions, caucuses, meetings or other similar assemblies. The term "candidate" is itself broadly defined to include "any person aspiring for or seeking an elective public office," whether or not such person has been formally nominated. The sweeping character of the prohibitions in Section 50-B is sought to be mitigated and delimited by the provisos exempting from their operation (a) "simple expressions of opinion and thoughts concerning the election," (b) expression of "views on current political problems or issues," and (c) "mentioning the names of the candidates for public office" whom one supports. Before assaying the constitutional quality of Sections 50-A and 50-B, it is relevant to point out that these two section are not wholly consistent with each other, and that considerable practical difficulties may be expected by those who would comply with the requirements of both. Under Section 50-A, political parties are allowed to nominate their official candidates for offices voted for at large within 150 days immediately preceding the election. At the very least, this section would seem to permit a political party to hold a nominating convention within the 150 days period. Section 50B, however, makes it unlawful to promote or oppose the candidacy of any person seeking such office, whether or not such person "has been nominated by any political party," and

to engage in an election campaign "for and against a candidate or party," except within the period of 120 days immediately preceding the election. I find it difficult to see how a political party can stage a nominating convention 150 days before an election if, at such time, neither any person nor group within such party may seek a nomination by campaigning among the delegates to the convention. By its very, nature, a nominating convention is intrinsically a forum for intensely partisan political activity. It is at the nominating convention that contending candidates obtain the formal endorsement and active support of their party the ultimate purpose of victory at the polls. A nominating convention, at which activity promoting or opposing the candidacies of particular persons seeking nominations is forbidden, is a practical impossibility. Thus, the very broadness of prohibitions contained in Section 50-B has the effect of reducing, as a practical matter, the time period specified in Section 50-A for nomination of candidates for national offices from 150 to 120 days before an election. II We turn to the central issue of constitutionality. That the legislature has, in broad principle, competence to enact laws relative to the conduct of elections is conceded. Congress may not only regulate and control the place, time and manner in which elections shall be held, but may also provide for the manner by which candidates shall be chosen. In the exercise of the police power, Congress regulate the conduct of election campaigns and activities by political parties and candidates, and prescribe measures reasonably appropriate to insure the integrity and purity of the electoral process. Thus, it has not been seriously contested that Congress may establish restraints on expenditures of money in political campaigns, 3 prohibit solicitation of votes for a consideration, 4 and penalize unlawful expenditures relative to the nominations of dates. 5

Laws of this kind lie fairly within the area of permissible regulation, and I think, that, in shaping specific regulations, Congressional discretion may be exercised within a wide range without remonstrance from the courts. If no more were at stake in Sections 50-A and 50-B than the political or personal convenience of a candidates faction or political group, we could with the least hesitation resolve the issue of constitutionality in favor of the legislative intendment. But infinitely more is at stake, for in enacting this prohibitions of Sections 50-A and 50-B, Congress has place undeniable burdens upon the exercise of fundamental political and personal freedoms encased in the Bill of Rights from legislative intrusion. There is firstly, a manifest restriction on the free exercise of the rights of speech and of the press in the provisions of Section 50-B imposing a limitation of time on the following activities. (c) Making speeches, announcements or commentaries or holding interviews for or against the election of any party or candidate or party; (d) Publishing or distributing, campaign. literature or materials (e) Directly or indirectly soliciting votes and or undertaking any campaign or propaganda for or against any candidate or party; Likewise, the regulation of the time within which nominations of candidates by political parties may take place, under Section 50-A, and fixing a time limit for holding "political conventions, caucuses, conference meetings, rallies, parades, or other similar assemblies" for campaign purposes under paragraph (b) of Section 50-B, curtails the freedom of peaceful assembly. And finally, the right to form associations for

purposes not contrary to law is impinged upon by the provision of paragraph (a) of Section 50-B regulating the forming of "Organizations, Associations, Clubs, Committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a party or candidate." It is fairly accurate to say that legislations imposing restrictions upon the right of free expression, and upon the right of assembly and of political association indispensable to the full exercise of free expression, have commonly been subjected to more searching and exacting judicial scrutiny than statutes directed at other personal activities. As aptly said by the United States Supreme Court in Schneider v. Irvington:6 In every case, ... where legislative abridgment of the rights is asserted, the courts should be astute to examine the effect of the challenged legislation. Mere legislative preference or beliefs respecting matters of public convenience may well support regulation directed at other personal activities but be in sufficient to justify such as diminishes are exercise of rights so vital to the maintenance of democratic institutions. Thomas v. Collins7exemplifies the same approach: "The rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on other grounds, will not suffice. These rights [of expression and assembly] rest on firmed foundations." The belief that more exacting constitutional tests are appropriately applied upon statutes having an actual or potential inhibiting effect on the right of speech, and the cognate rights of assembly and association, flows from recognition of the nature and function of these rights in a free democratic society. Historically the guarantees of free

expression were intended to provide some assurance that government would remain responsive to the will of the people, in line with the constitutional principle that sovereignty resides in the people and all government authority emanates from them. 8 The viability of a truly representative government depends upon the effective protection and exercise of the rights of the people to freely think, to freely discuss and to freely assemble for redress of their grievances; for these underlie the mechanisms of peaceful change in a democratic polity. There is ample authority in history for the belief that those who value freedom, but are frustrated in its exercise, will tend to resort to force and violent opposition to obtain release from their repression. So essential are these freedoms to the preservation and vitality of democratic institutions that courts have on numerous occasions categorized them as occupying a "preferred position" in the hierarchy of civil liberties. 9 "That priority," intoned the court in Thomas v. Collins, supra, "gives these liberties a sanctity and a sanction not per permitting dubious instrusions." This is not to say that the rights of free expression and of peaceful assembly may not be constitutionally restricted by legislative action. No one has seriously doubted that these rights do not accord immunity to every possible use of language or to every form of assembly. Circumstances may arise in which the safety, perhaps the very survival of our society, would demand deterrence and compel punishment of whomsoever would abuse these freedoms as well as whomsoever would exercise them to subvert the very public order upon the stability of which these freedoms depend. ... It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or

unrestricted or unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom.10 The right to freedom of speech, and to peaceful assembly and petition the government for redress of grievances, are fundamental personal rights of the people recognized and guaranteed by the constitutions of democratic countries. But it is a settled principle growing out of the nature of well ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society. The power to regulate the exercise of such and other constitutional rights is termed the sovereign "police power," which is the power to prescribe regulations, to promote the health, morals, peace, education, good order or safety, and general welfare of people.11 But in every case where there arises a clash between an assertion of State authority and the exercise of free speech and assembly, it is ultimate the high function and duty of this court to locate the point of accomodation and equilibrium and draw the line between permissible regulation and forbidden restraint. It is now conventional wisdom that this function of delimitation and adjustment cannot meaningfully be carried out through the iteration of abstract generalizations. The restriction that is assailed as unconstitutional must be judged in the context of which it is part, taking into account the nature and substantiality of the community interest sought to be protected or promoted by the legislation under assay, in relation to the nature and importance of the freedom restricted and the character and extent of the restriction sought to be imposed.

III Various standards have been evolved for the testing of the validity of a rule or regulation curtailing the rights of free speech, free press, and peaceful assembly. At the earlier stages in the development of jurisprudence on the matter, it was said that the State has the power to proscribe and punish speech which the State has the right to prevent." 12 The "dangerous tendency" rule, as this formulation has been called, found favor in many decisions of this Court. 13 In the United States, the "dangerous tendency" doctrine was early abandoned, and superseded by the "clear and present danger" rule. By the year 1919, the majority of the members of the United States Supreme Court got around to accepting Justice Holmes' view that "the question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." 14 To sustain legislation imposing limitations upon freedom of speech or of assembly, a court must find that the evil sought to be avoided by the legislative restriction is both serious and imminent in high degree. As stated in Bridges v. California: 15 ... the likelihood, however great, that a substantive evil will result cannot alone justify a restriction upon freedom of the speech or the press. The evil itself must be "substantial" ...; it must be "serious" .... What clearly emerges from the "clear and present danger" cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished ...

The "clear and present danger" rule has been cited with approval, in at least two decisions of this Court. 16 The "dangerous tendency" and "clear and present danger" doctrines, it should not escape notice, were fashioned in the course of testing legislation of a particular type legislation limiting speech expected to have deleterious consequences on the security and public order of the community. The essential difference between the two doctrines related to the degree of proximity of the apprehended danger which justified the restriction upon speech. The "dangerous tendency" doctrine permitted the application of restrictions once a rational connection between the speech restrained and the danger apprehended the "tendency" of one to create the other was shown. The "clear and present danger" rule, in contrast, required the Government to defer application of restrictions until the apprehended danger was much more visible until its realization was imminent and nigh at hand. The latter rule was thus considerably more permissive of speech than the former, in contexts for the testing of which they were originally designed. In other types of contexts, however, where the "substantive evil" which Congress seeks to avoid or mitigate does not relate to the maintenance of public order in society, the adequacy or perhaps even the relevancy of these doctrines cannot be casually assumed. It would appear to me that one of these contexts would be that where the legislation under constitutional attack interferes with the freedom of speech and assembly in a more generalized way and where the effect of speech and assembly in terms of the probability of realization of a specific danger is not susceptible even of impressionistic calculation. I believe that Sections 50-A and 50-B come within such context. Congress enacted these provisions not because it feared that speeches and

assemblies in the course of election campaigns would, probably or imminently, result in a direct breach of public order or threaten national security. Sections 50-A and 50-B explicitly recognize that such speech and assembly are lawful while seeking to limit them in point of time. However useful the "clear and present danger" formulation was in the appraisal of a specific type of situation, there is fairly extensive recognition that it is not a rule of universal applicability and validity, not an automatic mechanism that relieves a court of the need for careful scrutiny of the features of a given station and evaluation of the competing interests involved. In American Communications Ass'n v. Douds. 17 the United States Supreme Court unequivocally said that "in suggesting that the substantive evil must be serious and substantial, it was never the intention of this Court to lay down an absolutist test measured in terms of danger to the Nation." Rejecting the criterion of "clear and present danger" as applicable to a statute requiring labor union officers to subscribe to a non-communist affidavit before the union may avail of the benefits of the Labor Management Relations Act of 1947, the Court, speaking through Chief Justice Vinson, said: When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of the two conflicting interests demands the greater protection under the particular circumstances presented.... We must, therefore undertake the delicate and difficult task ... to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of rights.... 18

In enunciating a standard premised on a judicial balancing of the conflicting social values and individual interests competing for ascendancy in legislation which restricts expression, the court in Douds laid the basis for what has been called the "balancing-of-interests" test which has found application in more recent decisions of the U.S. Supreme Court. 19 Briefly stated, the "balancing" test requires a court to take conscious and detailed consideration of the interplay of interests observable in a given situation or type of situation. 20 In the actual application of the "balancing-of-interests" test, the crucial question is: how much deference should be given to the legislative judgment? It does not seem to me enough to say that this Court should not concern itself with the wisdom of a particular legislative measure but with the question of constitutional power. I believe that we cannot avoid addressing ourselves to the question whether the point of viable equilibrium represented by the legislative judgment embodied in R.A. 4880 is an appropriate and reasonable one, in the light of both the historic purpose of the constitutional safeguards of speech and press and assembly and the general conditions obtaining in the community. Although the urgency of the public interest sought to be secured by Congressional power restricting the individual's freedom, and the social importance and value of the freedom so restricted, "are to be judged in the concrete, not on the basis of abstractions," 21 a wide range of factors are necessarily relevant in ascertaining the point or line of equilibrium. Among these are (a) the social values and importance of the specific aspect of the particular freedom restricted by the legislation; (b) the specific thrust of the restriction, i.e., whether the restriction is direct or indirect, whether or not the persons affected are few; (c) the value and importance of the public interest sought to be secured by the

legislation the reference here is to the nature and gravity of the evil which Congress seeks to prevent;(d) whether the specific restriction decreed by Congress is reasonably appropriate and necessary for the protection of such public interest; and (e) whether the necessary safeguarding of the public interest involved may be achieved by some other measure less restrictive of the protected freedom. 22 In my view, the "balancing-of-interests" approach is more appropriately used in determining the constitutionality of Sections 50-A and 50-B. Both the "dangerous tendency" and "clear and present danger" criteria have minimum relevancy to our task of appraising these provisions. Under these two tests, the statute is to be assayed by considering the degree of probability and imminence with which "prolonged election campaigns" would increase the incidence of "violence and deaths," "dominion of the rich in the political arena" and "corruption of the electorate." This kind of constitutional testing would involve both speculation and prophecy of a sort for which this Court, I am afraid, has neither the inclination nor any special competence. IV Applying the "balancing-of-interests" test or approach outlined above, I am persuaded that Congress did not exceed constitutional limits in enacting Section 50-A. This Section, it will be recalled, makes it unlawful for any political party or group to nominate a candidate for an elective public office earlier than the period of 150 or 90 days, as the case may be, immediately preceding the election. No political party or group can claim a constitutional right to nominate a candidate for public office at any time that such party or group pleases. The party nomination process is a convenient method devised by political parties and groups, as a means of securing unity of political action. 23 As a device designed for expediency of

candidates and of political parties, the process of nomination or at least the time aspect thereof must yield to the requirements of reasonable regulations imposed by the State. It may be well to note that in many jurisdictions in the United States, the nomination of candidates for public office is regulated and controlled in many aspects by statutes. 24 While the act of nominating a candidate has speech and assembly aspects, the restrictive effect of Section 50-A would appear negligible. The reach of the statute is itself limited: it applies only to political parties, political committees or political groups, leaving everyone else free from restraint. The thrust of Section 50-A is also limited: it does not prohibit political parties from holding nominating conventions or from doing any lawful thing during such conventions; what it controls is the scheduling of the nominating conventions; While control of the scheduling of conventions of course involves delimitation of the time period which the formally revealed candidates have to convince the electorate of their respective merits, those periods 150 days and 90 days do not appear unreasonably short, at least not in this age of instantaneous and mass media. On the other hand, the legitimacy and importance of the public interest sought to be promoted by Section 50-A must be conceded. Congress has determined that inordinately early nominations by political parties or groups have the tendency of dissipating the energies of the people by exposing them prematurely to the absorbing excitement of election campaigns as we know them, and detracting from the attention that ought to be given to the pursuit of the main task of a developing society like ours, which is the achievement of increasing levels of economic development and social welfare. The rational connection between the prohibition of Section 50-A and its object, the indirect and modest scope of its restriction on the rights of speech and assembly, and the embracing public interest which Congress has found in the

moderation of partisan political activity, lead us to the conclusion that the statute may stand consistently with and does not offend against the Constitution. The interest of the community in limiting the period of election campaigns, on balance, far outweighs the social value of the kind of speech and assembly that is involved in the formal nomination of candidates for public office. V I reach a different conclusion with respect to Section 50B. Here, the restraint on the freedoms of expression, assembly and association is direct. Except within the "open seen" of 120 and 90 days preceding the election, the statute prevents and punishes by heavy criminal sanction speeches, writings, assemblies and associations intended to promote or oppose the candidacy of any person aspiring for an elective public office, or which may be deemed a direct or an indirect "campaign" or as "propaganda" for or against a political party. The prohibition reaches not only "a relative handful of persons;" 25 applies to any person "whether or not a voter or candidate," and to any group of persons "whether or not a political party or political committee." The effect of the law, therefore, is to impose a comprehensive and prolonged prohibition of speech of a particular content, except during the 120 or 80 days, respectively, immediately preceding an election. Thus, the moment any person announces his intention of seeking an elective public office, "regardless of whether or not said person has already filed his certificate of candidacy or has been nominated by any political party as its candidate," Section 50-B would become immediately operative. Should the aspirant make known his intention, say, one year before the election, the law forthwith steps in to impose a "blackout," as it were, of all manner of discussion in support of or in opposition

to his candidacy. The lips of the candidate himself are by the threat of penal sanction sealed, and he may not make a speech, announcement, commentary, or hold an interview to explain his claim to public office or his credentials for leadership until the commencement of the period allowed for an "election campaign." Neither may any person, before that period, speak out in open support or criticism of his candidacy, for that would constitute a prohibited commentary "for or against the election of [a] candidate [albeit not a formally nominated candidate] for public office," within the purview of paragraph (c) of Section 50-B. In practical effect, Section 50-B would stifle comment or criticism, no matter how fair-minded, in respect of a given political party (whether in our out of power) and prospective candidates for office (whether avowed or merely intending), and would abide all the citizens to hold their tongues in the meantime. What of the social value and importance of the freedoms impaired by Section 50-B? The legislation strikes at the most basic political right of the citizens in a republican system, which is the right actively to participate in the establishment or administration of government. This right finds expression in multiple forms but it certainly embraces that right to influence the shape of policy and law directly by the use of ballot. It has been said so many times it scarcely needs to be said again, that the realization of the democratic ideal of self-government depends upon an informed and committed electorate. This can be accomplished only by allowing the fullest measure of freedom in the public discussion of candidates and the issues behind which they rally; to this end, all avenues of persuasion speech, press, assembly, organization must be kept always open. It is in the context of the election process that these fundamental rigths secured by the Constitution assume the highest social importance. 26

As to the formation of "organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a party or candidate," 27 this is a right which, like freedom of expression and peaceable assembly, lies at the foundation of a libertarian and democratic society. 28 As Professor Kauper has explained, with characteristic lucidity: When we speak of freedom of association we may, have reference to it in a variety of contexts. Probably the highest form of freedom of association, at least as many would see it, is the freedom to associate for political purposes by means of organization of a political party and participation in its activities. The effective functioning of a democratic society depends on the formation of political parties and the use of parties as vehicles for the formulation and expression of opinions and policies. The minority party or parties become vehicles for registering opposition and dissent. The political party is the indispensable agency both for effective participation in political affairs by the individual citizen and for registering the diversity of views in a pluralistic society. Indeed, under some other constitutional systems political parties are viewed as organs of government and have a high constitutional status.29 We turn to the other end of the scales. As I have herein before observed, the interest of the state in regulating partisan political activity, which is sought to, be secured by Section 50B no less than by Section 50-A, is a legitimate one and its protection a proper aim for reasonable exercise of the public power. I think, however, that that interest, important as it is, does not offset the restrictions which Section 50-B imposes with indiscriminate sweep upon the even more fundamental

community interests embodied in the constitutional guarantees of speech, assembly and association. I have adverted to Mills v. Alabama where the United States Supreme Court struck down the Alabama Corrupt Practices Act to the extent that it prohibited, under penal sanctions, comments and criticism by the press on election day. The statutory provision there in question 11, not unlike Section 50-B here, was sought to be sustained in the interest of preserving the purity and integrity of the electoral process. The restriction which the Alabama statute imposed upon freedom of speech and assembly would seem an inconsequential one a restriction, imposed for one day, only one day, election day; nevertheless, the United States Supreme Court regarded such restriction as sufficient to outweigh the concededly legitimate purpose of the statute. We can do no less in respect of restrictious of such reach, scope and magnitude as to make the limitation of the Alabama statute appear, in comparison, as an altogether trifling inconvenience. Indeed, if a choice is to be made between licentious election campaigns, which Section 50-B seeks to curtail, and the muzzling, as it were, of public discussion of political issues and candidates, which the provision would effectuate, I have no hesitancy in opting for the former. It is the only choice consistent with the democratic process. Fortunately, there is no need to choose between one and the other; the dichotomy need not be a real one. I am not to be understood as holding that Congress may not, in appropriate instances, forbid the abusive exercise of speech in election campaigns. There is no constitutional immunity for a defamatory attack on a public candidate. Neither is there protection for slander of public officials. 30 It has been held to be within the power of the legislature to penalize specifically the making, in bad faith, of false charges of wrongdoing against a candidate for nomination or election to public office, 31 and to prohibit the publication or circulation of charges against such candidate

without serving him a copy of such charges several days before the election. 32 Statutes of this kind have been sustained against broad claims of impairment of freedom of speech and of the press. 33 "But it is an entirely different matter when the State, instead of prosecuting [offenders] for such offenses, seizes upon mere participation in a peaceable assembly and a lawful public discussion as a basis for criminal charge. 34 That remedies less destructive of the basic rights enshrined in the Constitution are not available, has not been shown. The applicable principle here has been formulated in the following terms: ... even though the governmental purposes be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same purpose.35 Section 50-B, as it would casually lump together the activities of citizens exercising their constitutional rights and those of politicians seeking the privilege of an elective office, is to broadly drawn to satisfy the constitutional test. The more pernicious aspects of our national preoccupation with "politics" do not arise from the exercise, even the abuse, by the electorate of the freedoms of speech and of the press; I find it difficult to suppose that these can be met by curtailing expression, assembly and association. The great majority of our people are too preoccupied with demands upon their time imposed by our generally marginal or submarginal standards of living. "Politics," as I see the contemporary scene, is a dominant pre-occupation of only a handful of persons the politicians, the professional partymen. If the people at large

become involved in the heat and clamor of an election campaign, it is ordinarily because they are unduly provoked or frenetically induced to such involvement by the politicians themselves. As it is, the great masses of our people do not speak loud enough and, when they do, only infrequently about our government. The effect of the ban on speech would serve only to further chill constitutionally protected conduct on their part which, instead of being suppressed, should on the contrary be encouraged. It is not amiss to observe here that the making of politically oriented speeches and the dissemination of similar literature, while they may divert the energies of those who make or write them and their audiences, would appear to me to be among the less pernicious aspects of our national preoccupation with "politics." The more dangerous aspects of our national preoccupation probably occur in privacy or secrecy and may be beyond the reach of measures like Section 50-B. It is argued in defense of the statute, nonetheless, that under the two provisos of Section 50-B, "simple expressions of opinion and thoughts concerning the election" and expression of "views on current political problems or sues," including mentioning the names of candidates for public offices whom one supports, are not prohibited; hence, freedom of expression is not unconstitutionally abridged by Section 50-B. This argument is gravely flawed by the assumption that "simple expressions of opinion" and "views on current political problems" cover the whole reach of the relevant constitutional guarantees. What about the rights of assembly and lawful association? As to freedom of expression that cannot be confined to the realm of abstract political discussions. It comprehends expression which advocates action, no less than that which merely presents an academic viewpoint. Indeed,

the value of speech in a democratic society lies, in large measure, in its role as an instrument of persuasion, of consensual action, and for this reason it must seek to move to action by advocacy, no less than by mere exposition of views. It is not mere coincidence that the farmers of our Constitution, in protecting freedom of speech and of the press against legislative abridgment, coupled that freedom with a guarantee of the right of the people to peaceably assemble and petition the government for the redress of grievances. The right of peaceful assembly for the redress of grievances would be meaningless and hollow if it authorized merely the public expression of political views, but not the advocacy of political reforms even changes in the composition of the elective officialdom of the administration. There is another, equally basic, difficulty that vitiates the avowed constitutional utility of the provisos appended to Section 50-B. Under the first proviso, it "simple expressions of opinion and thoughts concerning the election shall not be considered as part of an election campaign." From the precise use of the word "simple" may be rationally drawn an inference that "non-simple" expressions fall within the proscription of election campaigns. But the law conspicuously fails to lay dawn a standard by which permissible electioneering. How simple is "simple"? In the absence of such a standard, every speaker or writer wishing to make publicly known his views concerning the election and his preferences among the candidates, must speak at his own peril. He could carefully choose his word's with the intention of remaining within the area of speech left permissible by Section 50-B. But, in the nature of things, what and who can provide him assurance that his words, "simple expressions of opinion and thoughts concerning the election" as they may be, will not be understood by his audience or at least by some of them, or by the prosecuting officers of the Government, or by the courts even, as a "speech" or "commentary" "for or against the

election of ... a candidate for public office," or at least an indirect solicitation of votes? It is pertinent to advert to the Texas statute involved in Thomas v. Collins, supra, as illustrative of the vice of vagueness that we find in Section 50-B. The Texas statute required all labor union organizers to first obtain organizer's cards from the Secretary of State "before soliciting any members for his organization," and authorized the courts to compel compliance by the issuance of court processes. Thomas, the president of a nationwide labor union, came to Houston to address a mass meeting of employees of an oil plant which was undergoing unionization; but six hours before he was scheduled to speak, he was served with a court order restraining him from soliciting members for the local union which was affiliated with his organization, without first obtaining an organizer's card. For disobeying the restraining order, he was found in contempt of court. The U.S. Supreme Court, reversing his conviction, found the registration requirement an invalid restraint upon free speech and free assembly, thus: That there was restriction upon Thomas' right to speak and the rights of the workers to hear what he had to say, there can be no doubt. The threat of the restraining order, backed by the power of contempt, and of arrest for crime, hung over every word. A speaker in such circumstance could avoid the words "solicit," "invite," "join". It would be impossible to avoid the idea. The statute requires no specific formula. It is not contended that only the use of the word "solicit" would violate the prohibition. Without such a limitation, the statute forbids any language which conveys, or reasonably could be found to convey, the meaning of invitation. That Thomas chose to meet, the issue squarely, not to hide in ambiguous phrasing, does not

counteract this fact. General words create different and often particular impressions on different minds. No speaker, however careful, can convey exactly his meaning, or the same meaning, to the different members of an audience. How one might "land unionism," as the State and the State Supreme Court concedes Thomas was free to do, yet in these circumstances not imply an invitation, is hard to conceive. This is the nub of the case, which the State fails to meet because it cannot do so, Workingmen to do lack capacity for making rational connections. They would understand, or some would, that the president of U.A.W. and vice president of C.I.O. addressing an organization meeting, was not urging merely, a philosophy attachment to abstract principles of unionism, disconnected from the business immediately at hand. The feat would be incredible for a national leader, addressing such a meeting, lauding unions and their principles, urging adherence to union philosophy, not also and thereby to suggest attachment to the union by becoming a member. Furthermore, whether words intended and designed to fall short of invitation would miss that mark is a question, of intent and of effect. No speaker, in such circumstance safely could assume that anything lie might say upon the general subject would not be understood by as an invitation. In short, the supposedly clear-cut distinction between discussion and laudation, general advocacy, and solicitation puts the speaker in these circumstance wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning.

Such a distinction offers no security for free discussion. In these conditions it blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim. He must take care in every word to create no impression that he means, in advocating unionism's most central principle, namely, that workingmen should unite for collective bargaining, to urge those present to do so. The vice is not merely that invitation, in the circumstances shown here, is speech. It is also that its prohibition forbids or restrains discussion which is not or may not be invitation. The sharp line cannot be drawn surely or securely. The effort to observe it could not be free speech, free press, or free assembly, in any sense of free advocacy of principle or cause. The restriction's effect, as applied, in a very practical sense was to prohibit Thomas not only to solicit members and memberships but also to speak in advocacy of the cause or trade unionism in Texas, without having first procured the card. Thomas knew this and faced the alternatives it presented. When served with the order he had three choices: (1) to stand on his right and speak freely; (2) to quit, refusing entirety to speak; (3) to trim, and even thus to risk the penalty. He chose the first alternative. We think he was within his lights in doing so.36 The realism of the approach and reasoning employed in Thomas v. Collins commends itself; I think this kind of realism should be applied to the task of appraising Section 50-B. Section 50-B forbids "directly or indirectly soliciting votes and/or undertaking any campaign or propaganda for or against any candidate or party," including any language "for or against the election of any party or candidate for public office," except within the specified periods preceding the election.

If a minority political party were to hold a mass rally at Plaza Miranda within the prohibited period of an election year, for the purpose of publicly expressing their criticism of the party in power, it is unthinkable that the public speeches delivered during the occasion will not understood, by many if not by all, as a direct or an indirect campaign or propaganda against a political party, as well as a direct or an indirect solicitation of votes. The audience will certainly understand the occasion, not as a forum for indulging in criticism for criticism's sake, nor as a "simple" discussion of political, philosophy, but as an invitation to unseat the party in power at the next election. If, upon the other hand, the minority party should control one or both Houses of Congress and, for selfish partisan motives, oppose all or a major portion of the significant measures sponsored by the Administration, regardless of their merits, for the purpose of obtaining political partisan advantage, the Chief executive would, during the restricted period, find himself hampered in vigorously placing blame squarely on such minority party. The Administration (and this includes the Chief Executive himself) would be hard put to appeal to public opinion to exert pressure on the legislature to gain support for what it may honestly believe to be constructive measures sorely needed to promote the country's progress. The right of any party or politician to appeal to public opinion cannot be assailed; yet, when would such an appeal, in which the opposition may have to be several criticized not constitute a violation of Section 50-B? Actual, pre-war and postwar experience has shown that in a number of instances, the Chief Executive and leaders of his administration had to mobilize public opinion (largely expressed through the press) to frustrate what they regarded as a calculated scheme the opposition party of unreasonably interposing obstacles to a major part of essential legislation. It would indeed be most difficult to determine with exactitude what utterances of the Administration leaders, including the

Chief Executive himself, would or would not constitute propaganda "for or against a political party." Under these circumstances, I find the contraposition in Section 50-B between "expressions of opinion," on the one hand, and "solicitation" and "campaign or propaganda," on the other, as too uncertain and shifting a line of distinction to be of any practical utility either to the citizen or official who must speak at his own peril or to the prosecutors and the courts who must enforce and apply the distinction. Paragraph (f) of Section 50-B is tautological and question-begging. It defines "election campaign" as "giving, soliciting, or receiving contributions for election campaign purposes, either directly or indirectly." Insofar, therefore, as the phrase "election campaign purposes" in paragraph (f) depends for its meaning on the preceding paragraphs (a), (b), (c), (d) and(e), paragraph (f) likewise suffers from constitutional infirmity. Upon the other hand, if the meaning of paragraph (f) be that the act of soliciting, giving or receiving contributions for the purpose of advancing the candidacy of a person or party is "campaigning," then it is just as must a curtailment of the freedom of thought that the Constitution vouchsafes to every citizen. The foregoing disquisition could be compressed into the compelling perspective of this simple admonition: that "speech concerning public affairs is more than self-expression; it is the essence of self-government." 37 In sum and substance, it is my considered view that Section 50-B of the Revised Election Code constitutes an unconstitutional abridgment of the freedoms of speech, of the press, of peaceful assembly, and of lawful association. I vote for its total excision from the statute books.

Dizon, Zaldivar and Capistrano, JJ., concur. BARREDO, J., concurring and dissenting: I concur in the resulting dismissal of this case, but I candidate give my assent to so much of the opinion, brilliantly written for the Court by Mr. Justice Fernando, as would give the imprimatur of constitutionality to any portion of Section 50B of the statute before Us. Hereunder are my humble but sincere observations. I am of the firms conviction that this case should be dismissed. In fact, it is not clear to me why the petition herein was ever given due course at all No matter how I scan its allegations, I cannot find anything in them more than a petition for relief which is definitely outside the original jurisdiction of this Court. Petitioners themselves have expressly brought it as a petition for relief; it is the majority that has decided to pull the chestnuts out of the fire by holding that it should be "treated by this Court as one of prohibition in view of the seriousness and the urgency of the constitutional issue raised." Frankly I consider this relaxation rather uncalled for; it could border on over eagerness on the part of the Supreme Court, which is not only taboo in constitutional cases but also certainly not befitting the role of this Tribunal in the tripartite scheme of government We have in this Republic of ours. I am afraid the majority is unnecessarily opening wide the gate for a flood of cases hardly worthy of our attention, because the parties concerned in many cases that will come to Us may not see as clearly as We do the real reasons of public interest which will move Us when We choose in the future to either entertain or refuse to take cognizance, of cases of constitutionality. Withal, We cannot entirely escape the suspicion that We discriminate. Since after all, the majority admits that "When We act in these matters, We do not do so on the assumption that to Us

is granted the requisite knowledge to set matters right, but by virtue of the responsibility We cannot escape under the Constitution, one that history authenticates, to pass upon every assertion of an alleged infringement of liberty, when our competence is appropriately invoked", (underscoring mine) and, further, no one can deny that it is now firmly established that among the indispensable requirements before this Court can take up constitutional question is that We can do it only when it, involves a real and genuine situation causing direct substantial injury to specific persons, as contradistinguished from mere speculative fears of possible general hardship or mere inconvenience, I feel it would be much safer for Us, and our position would be more in word with the rule of law, if We adhered strictly to the above requirement and threw out cases of the nature of the present one, if only out of the traditional respect this Tribunal owes the two other coordinate and coequal departments of our government. In the petition at bar, there are no allegations of specific acts of the respondent Commission on Elections or even only threatened to be committed by it, pursuant to the challenged legislation, which they claim impairs, impedes, or negates any rights of theirs considered to be constitutionally protected against such impairment, impeding or negation. It is very clear to me that in this case, our jurisdiction has not been properly invoked. Considering how multifaceted the law in question is, one is completely at a loss as to how petitioner request for a blanket prohibition and injunction can be considered, in the light of existing principles that strictly limit our power to take cognizance of constitutional cases only to those that can pass the test I have mentioned above. What is more, I regret to have to say that what the majority is doing by taking further cognizance of and deciding this case is to brush aside the stark reality that the interest in this case of petitioners Cabigao and Gonzales, the first, as candidate, and the second, as his leader, related only to the

elections of 1967 wherein, in fact, Cabigao was elected ViceMayor of Manila. Accordingly, this case has already become entirely academic even as a prohibition, because neither Cabigao nor his leader, Gonzales, can conceivably have any further imaginable interest in these proceedings. How can we proceed then, when petitioners' interest no longer exists and whatever decision We may make will no longer affect any situation involving said petitioners. Clearly to me, what the majority has done is to motu proprio convert the action of petitioners into a taxpayer's suit, which may not be proper because there no specific expenditure of public funds involved here. Besides, if petitioners have not come with a supplemental petition still complaining, why are We going to assume that they are still complaining or, for that matter, that there are other persons who are minded to complain, such that We have to give or deny to them here and now the reason to do so? Again, I say, the Court seems to be trying to bite more than it can chew, since cases of this nature 1 will surely come in great numbers and We will have to accommodate them all, otherwise the exercise of our discretion in rejecting any of them can be questioned and may at times be really questionable. My basic principle is that the rule of law avoids creating areas of discretionary powers, and the fact that it is the Supreme Court that exercises the discretion does not make it tolerable in any degree, for such an eventuality can be worse because no other authority can check Us and the people would be helpless, since We cannot be changed, unlike the President and the Members of Congress who can, in effect, be recalled in the elections. Of course, I have faith in the individual and collective wisdom and integrity of each and every one of my fellow members of this Court, but I still prefer that We exercise discretion only when it is clearly granted to Us, rather than for Us to create by our own fiat the basis for its exercise.

The other question assailing my mind now, is this: Is there any precedent, whether here or in any other jurisdiction where the Supreme Court has the power to declare legislative or executive acts unconstitutional, wherein any supreme court had insisted on deciding grave constitutional questions after the case had become completely moot and academic because the interest of the actors alleged in their pleading had ceased to exist? I don't believe there has been any, which is as it should be, because if this Court and even inferior court dismiss ordinary cases which have become moot and academic, with much more reason should such action be taken, in cases wherein the unconstitutionality of a law or executive order is raised, precisely for the reasons of principle already stated and fully discussed in other constitutional cases so well known that they need not be cited here anymore. It is for these considerations that I join the majority in dismissing this case. And I want to acknowledge that I am heartened in any stand by the fact that in the deliberations, at least, Mr. Justice Makalintal expressed similar views as mine, so much so that, in his particular case, he did not even care to discuss the constitutional questions herein invoIved precisely because they are not appropriately before this Court. 1a On the other hand, if the majority's position is correct that this Court may properly consider this case as one of prohibition and that it should be decided despite its having become clearly academic, I would definitely cast my vote with Mr. Justice Castro to declare unconstitutional Section 50-B of the legislative enactment in question, Republic Act 4880, more popularly known as the Taada-Singson Law. Unlike him, however, I shall not indulge in a complete discussion of my stand on the constitutional questions herein involved, since the opportunity to voice fully my views will come anyway when the proper case is filed with Us. It is only because some members of the Court feel that we should make known what are, more or less, our personal opinions, so that the parties concerned

may somehow be guided in what they propose to do or are doing in relation to the coming election, that I shall state somehow my fundamental observations, without prejudice to their needed enlargement if and when the appropriate opportunity comes. Indeed, in my humble view, what the Court is rendering here is in the nature of an advisory opinion and I am sure all the members of the Court will agree with me that in doing this we are departing from the invariable posture this Court has always taken heretofore. In other words, we are just advancing now, individually and collectively, what our votes and judgment will be should an appropriate case come, unless, of course, as some of our colleagues have wisely observed in other cases where I have made similar observations, We change our mind after hearing the real parties in interest. Coming now to the constitutional problems posed by the pleadings, I have these to say, for the time being: 1. The first specific act defined by the statute in question as "election campaign" or "partisan political activity" proscribed by it within the stipulated limited period of one hundred twenty days prior to an election at large and ninety days in the case of any other election is to "form(ing) organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a party or candidate." No law more effective, if less disguised, could have been conceived to render practically impossible the organization of new political parties in this country. If for this reason alone, I consider this provision to be deserving of the severest condemnation as an unparalleled assault on the most sacred and fundamental political rights of our citizenry. In the light of the recent political experience of the strong of heart and idealists amongst us, this measure appears to me as a perfect or, at least, a near-perfect scheme for the perpetuation of the status quo and the

entrenchment of the presently existing political parties, particularly, the two major ones, whether or not we share the cynical reference to them by the discerning as nothing but twin peas in the same pod. This is not to say that such was what motivated its authors, particularly Senator Tanada, for whom I have always had the highest regard for his never-questioned sincerity of purpose, patriotism and libertarian principles, which opinion of mine is undoubtedly shared by all the member of this Court. I must insist, however, that such is what appears to me to be unmistakably the evident effect of the prohibition under discussion it is most probable that in its passion to remedy as early as possible the evils it feels exist, Congress has overlooked unwittingly some of the possible implications of this particular measure. It is one thing to prohibit a political party from actively campaigning outside a certain period of time and it is entirely another thing to prohibit citizens who are not contented with the existing political parties to organize, outside the same period, any new political party which they feel will better serve the public weal. 1b Before it is contended that this provision does allow the organization of new political parties within the abovementioned periods of one hundred twenty and ninety days preceding each respective election referred to, I hasten to add that the said periods are so obviously insufficient that to some it would appear as if the reference to such brief periods of free organization in the provision was just inserted into it to camouflage its real but unmentionable intentions and/or to blunt any challenge of unconstitutionality. All our people have been witnesses to events of contemporary history which have clearly demonstrated the futility of organizing a new political party or even just a front or alliance within such a short time. To name the gallant national figures who have met frustration in such endeavor even with much more time at their disposal is to prove that the task is

simply next to impossible, no matter if it were undertaken by men of the best reputation in integrity and nobility of ideals. It is surely of common knowledge that the work of organization alone of a party, not to speak of the actual participation and influence such party is intended to effectuate in the ensuing election, can hardly be accomplished, within the four months provided by the statute, with sufficient success to be of any consequence, specially, on a national level, which is what is needed most, because while local issues seem to arouse more interest among the electors, national issues have a profound effect on the lives and liberties of all the people. It must be borne in mind, in this connection, that our country is made up of more than 7,000 islands scattered throughout the length and breadth of the archipelago. Those who have taken part in one way or another in an electoral campaign of national dimension know only too well that one can hardly cover a majority of these islands, not to speak of all of them, within such an abbreviated period. Moreover, in the light of contemporary trends of political thinking and action, very much more than the present condition of things about which there is, to be sure, so much hypocritical hue and cry, particularly, among those whom the present-day Robin Hoods, in and out of the government have not attended to, to engender a general feeling of dissatisfaction and need for change in such widespread proportions as to readily galvanize enough elements to rise in peaceful revolution against the existing political parties and bring about the formation within the short span of four months of a new political party of adequate or at least appreciable strength and effectiveness in the national arena. Even the obviously sincere efforts of the undaunted who keep on trying their luck, pitted against the marked complacency and indifference of the present and passing generations, if not their incomprehensible inability to overcome the inertia that seems to be holding them from pushing the scattered protests here

and there, more or less valid and urgent, to their logical conclusion, generate but very little hope that the expected reaction can materialize during our time. Needless to say, no matter if one looks at the current scenes thru the most rosy spectacles, a ban against the formation of new political parties is definitely out of the question. A total expressed ban is, of Course, repugnant to any decent sense of freedom. Indeed, a disguised even if only partial, is even more intolerable in this country that does not pretend to have but does truly have democratic bearings deeply rooted in the history of centuries of heroic uprisings which logically culminated in the first successful revolution of a small nation against despotism and colonialism in this part of the world. It is to be conceded that the adequacy or inadequacy of the means adopted by Congress in the pursuit of a legislative recognized objective is generally irrelevant to the courts in the determination of the constitutionality of a congressional action. I must be quick to add, however, that this rule can be salutary only if the adequacy is controversial, but when the inadequacy of the means adopted is palpable and can reasonably be assumed to be known or ought to be known generally by the people, such that it is a foregone conclusion that what is left licit by the law can be nothing more than futile gestures of empty uselessness, I have no doubt that the judicial can rightfully expose the legislative act for what it is an odious infraction of the charter of our liberties. Other the principle of respect for coordinate and co-equal authority can be a tyranny forbidding the courts from striking down what is not constitutionally permissible. I am ready to agree that the judiciary should give allowances for errors of appreciation and evaluation of the circumstances causing the passage of a law, but if it is true, as it is indeed true, that the Supreme Court is the guardian next only to the people themselves of the integrity

of the Constitution and the rights and liberties it embodies and sanctifies, I would consider it an unpardonable abdication of our peculiar constitutionally-destined role, if We closed Our eyes and folded Our arms when a more or less complete ban against the organization of new political parties in this countries is being attempted to be passed before Us as a legitimate exercise of police power. At this point, it is best to make it clear that the particular constitutional precept with which the statutory provision in question is inconsistent and to which therefore, it must yield is Paragraph 6, Section 1, Article III of the Bill of Rights of the Constitution which ordains: The right to form associations or societies for purposes not contrary to law shall not be abridged. Incidentally, the indigenous cast of this provision is seemingly emphasized by Mr. Justice Fernando by his reference to its origin in the Malolos Constitution of 1896. 2 Indeed, there it was provided: Article 19 No Filipino in the full enjoyment of his civil and political rights shall be hindered in the free exercise thereof. Article 20 Neither shall any Filipino, be deprived of: 1. ... 2. The right of joining any associations for all objects of human life which may not be contrary to public moral; ...

It is to be observed that in the light of its text and origin, the statutory provision under scrutiny forbids the abridgement of the right of inhabitants of this country to form associations and societies of all kinds, including and most of all, for the citizens, political parties, the sole exception being when the association or society is formed for purposes contrary to law. It is unquestionable that the formation of an ordinary political party cannot be for purposes contrary to law. On the contrary, the organization of political parties not dedicated to the violent overthrow of the government is an indispensable concomitant of any truly democratic government. Partyless governments are travesties of the genuine concept of democracy. The immediate repulsion that fated straws in the wind thrown in favor of such an anachronistic proposal here in the Philippines is still fresh in the memory of many of our countrymen. Our people are firmly set on the inseparability of political parties from a democratic way of life. To ban political parties here is to kill democracy itself. And now comes this legislation banning the formation of political parties except within certain limited periods of time, so short, as I have already demonstrated, that in effect, the ban is a total one. Can them be a more flagrant violation of the constitutional guarantee of freedom of association? Besides, since it is undeniable that the evils Congress seeks to remedy cannot be said to have all been brought about by the formation of new political parties, but rather by the anomalous, irregular, corrupt and illegal practices of the existing political parties, why does the legislature have to direct its wrath against new political parties, which, for all we know, can yet be the ones that will produce the much needed innovation in the political thinking and actions of our electorate which will precisely do away with the defects of the present political system? As I see it, therefore, the remedy embodied in the disputed provision is so clearly misdirected that it cannot, under any concept of constitutional law, be tolerated and considered constitutionally

flawless, on the theory that it is just a case of error in the choice of means, on the part of Congress, to attain the objective it has in mind, hence beyond the pale of judicial review. To be sure, the phrase "for purposes not contrary to law" in the constitutional provision above quoted did not pass unnoticed during the debates in the constitutional convention. To some delegates, it appeared that said phrase renders nugatory the freedom it guarantees, for the simple reason that with said phrase the lawmakers are practically given the attribute to determine what specific associations may be allowed or not allowed, by the simple expedient of outlawing their purposes prophetic vision, indeed! No less than Delegate Jose P. Laurel, who later became an honored member of this Court, had to explain that "the phrase was inserted just to show that the right of association guaranteed in the Constitution was subject to the dominating police power of the state." (Aruego, id.) To my mind, this explanation of Delegate Laurel renders the prohibition in the law in question more vulnerable to the charge of unconstitutionality. It is to me simply inconceivable that the state can ever forbid the formation of political parties in the assertion of its "dominating police power". I reiterate that political parties are an absolute necessity in a democracy like ours. As a matter of fact, I dare say police power would be inexistent unless the political parties that give life to the government which exercises police power are allowed to exist. That is not to say that political parties are above the state. All that I mean is that without political parties, a democratic state cannot exist; what we will have instead is a police state. No more than momentary reflection is needed to realize that much as our Constitution projects, it would appear, the desirability of the two-party system of government. there is

nothing in it that even remotely suggests that the present political parties are the ones precisely that should be perpetuated to the prejudice of any other. Less reflection is needed for one to be thoroughly convinced that to prohibit the organization of any new political party is but a short step away from implanting here the totalitarian practice of a one-ticket election which We all abhor. Absolute freedom of choice of the parties and men by whom we shall be governed, even if only among varying evils, is of the very essence in the concept of democracy consecrated in the fundamental law of our land. So much, for the time being, for the prohibition against new political parties. Let us go now to the other freedoms unconstitutionally impinged by the legislation at bar. 2. If I vehemently decry the attempt in this law to curtail our freedom to organize political parties whenever it may please us to do so for being not only violative of the letter of the constitution but contrary also to the democratic traditions of our people and likewise a patent disregard of the very essence of a democratic form of government, I cannot have less repugnance and abhorence for the further attempt in this law to do away with the freedoms of speech and the press and peaceful assembly. Lest I be misunderstood, however, as being an ultra-activist, it should be clear at the outset that in holding that the above prohibitions contained in the statute in question are violative of the Constitution, my stand is limited to my fundamental conviction that the freedoms of speech, of the press and of peaceful assembly and redress of grievances are absolute when they are being exercised in relation to our right to choose the men and women by whom we shall be governed. I hold neither candle nor brief for licentious speech and press, but I recognize no power that can pre-censor much less forbid any speech or writing, and peaceful assembly and petition for the redress of grievances, the purpose of which is no more than to express one's belief regarding the

qualification or lack of them, the merits and the demerits of persons who are candidates for public office or of political parties vying for power, as well as the principles and programs of government and public service they advocate, to the end that when voting time comes the right of suffrage may be intelligently and knowingly, even if not always wisely, exercised. If, in the process, there should be in any manner any baseless attacks on the character and private life of any candidate or party or some form of inciting to public disorder or sedition, the offender can be rightfully haled to court for libel or the violation of the penal provisions on public order and national security, as the facts may warrant, but never can anyone, much less the state, have the power to priorly forbid him to say his piece. Paragraphs (b), (c), (d) and (e) of Section 1 of the challenged legislation cover practically a common subject matter. They all define as "election campaign" or is "partisan political activity" forbidden to be exercised within the aforementioned periods the following liberties: The term "Election Campaign" or "Partisan Political Activity" refers to acts designed to have a candidate elected or not or promote the candidacy of a person or persons to a public office which shall include: (a) ... (b) Holding political conventions, caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purposes of soliciting votes and/or undertaking any campaign or propaganda for or against any candidate or party;

(c) Making speeches, announcements or commentaries or holding interviews for or against the election of any party or candidate for public office; (d) Publishing or distributing campaign literature or materials; (e) Directly or indirectly soliciting votes and/or undertaking propaganda for or against any candidate or party; Naturally, it is my uncompromising view, that by these provisions the act directly violates the plain injunction provision of the Constitution to the effect that: No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances. (Par. [8], Sec. 1, Art. III of the Constitution) My colleagues are impressed by the objectives of the legislative measure before Us. Mr. Justice Fernando voices the feeling of some of them in the opening paragraph of the Court's opinion thus: "A statute designed to maintain the purity and integrity of the electoral process by Congress calling a halt to the undesirable practice of prolonged political campaigns, bringing in their wake serious evils not the least of which is the ever-increasing cost of seeking public office, is challenged on constitutional grounds." Mr. Justice Castro proclaims said objectives as practically self-evident and heartily endorses, by quoting in toto, the purposes avowed in the explanatory note of Senate Bill 209 which finally became the subject statute. Mr. Justice Sanchez is a little more factual as he opines:

State authority here manifests itself in legislation intended as an answer to the strong public sentiment that politics is growing into a way of life, that political campaigns are becoming longer and more bitter. It is a result of a legislative appraisal that protracted election campaign is the root of undesirable conditions. Bitter rivalries precipitate violence and deaths. Huge expenditures of funds give deserving but poor candidates slim chances of winning. They constitute an inducement to graft to winning candidates already in office in order to recoup campaign expenses. Handouts doled out by and expected from candidates corrupt the electorate. Official duties and affairs of state are neglected by incumbent officials desiring to run for reelection. The life and health of candidates and their followers are endangered. People's energies are dissipated in political bickerings and long drawn-out campaigns. (2nd par., p. 4, concurring & dissenting opinion of Mr. Justice Sanchez) . I hope I will be forgiven for having to view things differently. Indeed, I would like to ask the optimists in and out of Congress to silence the trumpets they have sounded to herald the approval of this law. I agree that generally no court and no member of this Tribunal has the right to quarrel with Congress in its choice of means to combat the evils in a legislatively recognized situation, but are We, as the Supreme Court, to seal our lips even when we can plainly see that a congressional measure purported allegedly to do away with certain evils does, on the contrary, promote those very same evils it is supposed to remedy, on top of impinging on our sacred constitutional freedoms, and at that, with the aggravating element of giving undue advantage to the incumbents in office and to the existing political parties?

A closer look at the way the prohibitions contained in the section of the law in dispute will work will reveal how detrimental they are to the basic public interest, nay, to the right of suffrage itself. I like to reiterate over and over, for it seems this is the fundamental point others miss, that genuine democracy thrives only where the power and right of the people to elect the men to whom they would entrust the privilege to run the affairs of the state exist. In the language of the declaration of principles of our Constitution, "The Philippines is a republican state. Sovereignty resides in the people and all government authority emanates from them." (Section 1, Article II) Translating this declaration into actuality, the Philippines is a republic because and solely because the people in it can be governed only by officials whom they themselves have placed in office by their votes. And it is on this cornerstone that I hold it to be self-evident that when the freedoms of speech, press and peaceful assembly and redress of grievances are being exercised in relation to suffrage or as a means to enjoy the inalienable right of the qualified citizen to vote, they are absolute and timeless. If our democracy and republicanism are to be worthwhile, the conduct of public affairs by our officials must be allowed to suffer incessant and unabating scrutiny, favorable or unfavorable, everyday and at all times. Every holder of power in our government must be ready to undergo exposure any moment of the day or night, from January to December every year, as it is only in this way that he can rightfully gain the confidence of the people. I have no patience for those who would regard public dissection of the establishment as an attribute to be indulged by the people only at certain periods of time. I consider the freedoms of speech, press and peaceful assembly and redress of grievances, when exercised in the name of suffrage, as the very means by which the right itself to vote can only be properly enjoyed. It stands to reason therefore, that suffrage itself would be next to useless if the liberties cannot be untrammelled whether as to degree or time.

It must be noted that the proscription contained in this law is against the use altogether of the freedom of speech, press and peaceful assembly in relation to the candidacy of a person for public office, not against the use of such freedoms in order to damage the character of any particular person or to endanger the security of the state. No matter how I view, it I cannot see how using said freedoms in the interest of someone's candidacy beyond the prescribed abbreviated period can do any harm to the common weal. I regret I came too late to this Court to be able to hear what I have been made to understand was Senator Taadas very informative arguments. With all due respect to what might have been showing by the distinguished Senator, I personally feel the present measure premature and misdirected. The incidence and reincidence of bloody occurences directly or indirectly caused by electoral rivalries cannot be denied, but unless shown convincing and reliable statistical data, I have a strong feeling that those who entertain these apprehensions are influenced by unwarranted generalizations of isolated cases. Not even the residents of such allegedly troublous areas as Ilocos Sur, the Lanao provinces, Cavite, Cebu and Nueva Vizcaya will admit that the situation in those places is so beyond control as to necessitate, at any time, the complete suppression of expression of views, oral and in writing for or against person handling public affairs or; aspiring to do so. As the above-quoted provisions stand, every imaginable form of political activity, whether done individually or suprisingly by a person, or collectively, by a number of persons, is covered by their prohibitions. Under the said provisions, during twenty months in every two years, there are only three things Filipinos can do in relation to the conduct of public affairs by those they have voted into power and the relative capacity or incapacity of others to take their places, namely: (1) simple expressions of opinion and thought concerning the election; (2) expression of views on current

political problems and issues; and (3) mention the candidates whom one supports. If these exceptions in the statute are not absurd, little comfort can be found beneath their umbrage. As to the first exception, Mr. Justice Castro very aptly asks, how simple is simple? I would like to add to the impeccable structures of my esteemed colleague, if I may be permitted, the humble observation that the phrase "concerning the election" is to me too equivocal, if it is not incomprehensible, to be part of a penal statute such as this law is, with the heavy penalty of imprisonment from one year to five years, disqualification to hold public office for not less than one year nor more than nine years and deprivation of the right to vote for a like period that it imposes. To express an opinion as regards elections in general is something that is indubitably outside the area of any possible legislative proscription and to do so in relation to a forthcoming specific election without any discernible hue of an appeal for support for one protagonist or another is to say nothing worthwile, that is, if it is possible to conceive of anyone referring to an actual impending election with complete impartiality. On the other hand, to express one's views regarding an actual election with mention of the qualifications or disqualifications of the candidates and the political parties involved, cannot escape the coverage of the prohibition in question. As to the second exception, what views on current political problems and issues can be expressed without necessarily carrying with them undercurrents of conformity or non-conformity with the present state of things and, directly or indirectly, with the ways of the incumbents in office? And as to the last exception, who can be these candidates whose names would possibly be mentioned by any sympathizer, when candidates are not allowed by this law to be nominated earlier

than practically the same period as the prohibitions against campaigns? . I can well understand the predicament of Congress. It has attempted to define the indefinable. Any intent to circumscribe the areas of basic liberties cannot end but in absurdity. To insist on drawing artificial boundaries for their enjoyment must necessarily result in confusion and consequent protracted controversy and debate which can only give occasion for the inordinate exercise of power for power's sake. A definition that comprehends substantially what should not be included is no definition at all. The right of our people to speak and write freely at all times about our government and those who govern us, only because we have elected them, cannot be subjected to any degree of limitation without virtual loss of the right itself. The moment it become impossible for the inhabitants of this country to express approval or disapproval of the acts of the government and its officials without imperilling their personal liberty, their right to hold office and to vote, and such appears to be the natural consequence of the injunctions of this law, we cannot be far away from the day when our Constitution will be hardly worth the paper on which it is written. I find it difficult to dissociate the prohibition in this law from the obvious advantages they give to those presently holding office by election and to the existing political parties. Under the definition of the terms "candidate" and "election campaign or "partisan political activity" contained in the section we are assaying it is clear that what the statute contemplates are candidates for public offices. Accordingly, candidates for nomination by their respective political parties do not appear to be comprehended within the prohibition; so, as long as a person campaigns, even publicly, only for nomination by his party, he is free to expose himself in any

way and to correspondingly criticize and denounce all his rivals. The fact that the law permits in Section 50-A the holding of political conventions and the nominations of official candidates one month before the start of the period of the prohibitions in Section 50-B, lends strength to this conclusion. 3. Such being the case, the undue advantage of the aspirants for nomination within the existing political parties over independent candidates becomes evident. The legal period fixed by the law will start in July, and yet, we have long been witnesses already to all sorts of campaigns, complete to the last detail - what with the newspaper and radio and television campaign matters being published and broadcast as widely as possible, the campaigners armed or endowed with either experience, money or pulchritude or what may pass for it, welcoming wave after wave of party delegates arriving at the airports and the piers, the billeting of these delegates in luxurious and costly hotels, at the cost of the candidates and with pocket money to boot, the sumptuous banquets and parties, etc., etc. And to top it all, a well publicized marathon "consensus" which has reportedly cost the candidates millions of pesos! In other words, in the actual operation of this law, it is only the independent candidate, the candidate who does not belong to the existing political parties and who is prohibited to organize a new one, who must keep his ambitions and aspirations all to himself and say nary a word, lest he jeopardize his liberty and his rights to hold office and to vote, while those who belong to the said parties merrily go about freely gaining as much exposure as possible before the public. I need not refer to the tremendous advantages that accrue to the party in power and to all incumbents, irrespective of political party color, from the operation of this law. They should be obvious to any observer of current events.

Under these circumstances, can it be successfully maintained that such disparity of opportunities for those who legitimately want to offer their services to the people by getting elected to public office, resulting from a congressional act approved by those who would benefit from it, is constitutionally flawless? When it is considered that this law impinges on the freedoms of speech, press, assembly and redress of grievances and that its only justification is that it is intended to remedy existing evil practices and undesirable conditions and occurrences related to the frequency of elections and the extended campaigns in connection therewith, and it is further considered that, as demonstrated above, this law, in its actual operation impairs and defeats its avowed purposes because, in effect, it deprives the independent candidates or those who do not belong to the established political parties of equal opportunity to expose themselves to the public and make their personal qualifications, principles and programs of public service known to the electorate, to the decided advantage of the incumbents or, at least, those who are members of the existing political parties, it can be easily seen that the curtailment of freedom involved in this measure cannot be permitted in the name of police power. I am certain none can agree that resort to police power may be sanctioned when under the guise of regulating allegedly existing evils, a law is passed that will result in graver evil than that purported to be avoided. As far as I can understand the commitment of our people to the principle of democracy and republicanism, we would rather have the bloodshed, corruption and other alleged irregularities that come with protracted electoral campaigns and partisan political activity, than suffer the continued mockery of their right to vote by limiting, as this legislation does, their right of choice only to those whom the existing political parties might care to present as official candidates before them. If this would be all that the right of suffrage would amount to, the death of Hitler and Mussolini might just as well be considered as the most lamentable tragedies in the history

of freemen and we should welcome with open arms the importation into this country of the kind of elections held in Russia and Red China. A few considerations more should make those who believe in the efficacy and constitutionality of this law take a second hard look at it. Then, they will realize how mistaken they must be. I have said earlier that this act defeats its own avowed purposes. Well, all that have to be considered for anyone to see my point is that in the matter of reducing the cost of elections by limiting the period of campaigns, current events have clearly proven that instead of lessening their expenditures, candidates have spent more than they would have done without such limitation. Because of the shortness of the period provided for the calling of conventions for the nomination of official candidates by political parties and the more abbreviated period that the candidate who would be ultimately nominated and the parties themselves will have to campaign to win in the election, these parties have resorted to other means of having, at least, even a semi-official candidate, without calling him so. And this, as everybody knows means money, money and money. The truth known to all who have political experience is that no candidate for a position voted at large nationally can entertain any hopes of winning after a campaign of only four months. It took at least a year for Presidents Magsaysay, Macapagal and Marcos to win the presidency. None of the senators we have and have had can boast of having campaigned only for four months. In view of the abbreviated period of campaign fixed in this law, necessarily the candidates have to redouble their efforts, try to cover more area in less time, see more people every moment, distribute more propaganda, etc., etc., and all these mean money, more money and more money. In this set up, so neatly produced by this law, it is regretably evident that the poor candidates have

no chance. How can a poor candidate cover the more than 7,000 islands of our archipelago in four months? If it was impossible to do so when there was no limitation of the period for campaigns, what chance can such a poor candidate have now? Thus, it can be seen that this law has not only made candidates spend more than they used to do before, it has effectively reduced the chances and practically killed the hopes of poor candidates. Under this law, it may truthfully be said that the right to be elected to a public office is denied by reason of poverty. My brethren view the problem before Us as one calling for the reconciliation of two values in our chosen way of life individual freedom, on the one hand, and public welfare, on the other. I do not see it that way. To my mind, if the freedoms of speech, press, peaceful assembly and redress of grievances in regard to the right to vote can be impinged, if not stifled, by standards and limitations fixed by those who are temporarily in power, I would regard those freedoms as no freedoms at all, but more concessions of the establishment which can be reduced or enlarged as its convenience may dictate. Of what use can such kind of freedom be? . Taking all circumstances into account, it is entirely beyond my comprehension, how anyone could have conceived the idea of limiting the period of electoral campaigns in this country, when what we need precisely is more intelligent voting by the greater portion of our people. I do not believe our mass media have reached the degree of efficiency in the dissemination of information needed to enable the voters to make their choices conscientiously and with adequate knowledge of the bases of their decisions. I am not convinced that at this stage of our national life we are already prepared to enjoy the luxury of abbreviated electoral campaigns, unless we are inclined to forever have with us the areas of political bossism, apparent statistical improbabilities

and politico-economic blocs and even politico-religious control which we have; in varying degrees these days and which will naturally continue as long as our people are not better informed about the individual worth of the candidates for or against whom they vote. I dare say that there is enough reason to hold that if mistakes have been committed by our people in the selection of their elective officials, it is because the information needed to serve as basis for intelligent voting have not fully reached all segments of the population. Inadequacy of reliable information among the voters, regarding the qualification of the candidates and the relevant circumstances of the election they are taking part in can be the greatest bane of popular suffrage. Modesty aside, it is quite well known that it has been my lot to have handled, alone or with others, some of the most important political cases in the country since the end of the second world war. To be able to do so, I had to study our election laws assiduously perhaps as any other Filipino has. From what I have thus learned, I can safely say that the present laws are reasonably adequate to prevent lavish and excessive expenditures for electoral purposes. The real cause for regret is the lack of proper implementation of these laws. I dare say that even the courts, not excluding this Supreme Court, and specially the Electoral Tribunals of the Senate and the House of Representatives have been rather liberal in interpreting them, so much so, that the unscrupulous have succeeded in practically openly violating them with a cynical sense of impunity. The recent case of the ouster of Senators Manglapus, Kalaw and Antonino was a singular one, wherein the spirit of the law triumphed, even as it brought to the fore the necessity of making more realistic the ceilings of allowable expenditures at the time when the cost of everything has multiplied several times compared to that when the existing limitations were established. Indeed, these unrealistic limitations, as to the amounts of expenditures candidates may

make, has somehow compelled the corresponding authorities to overlook or even condone violations of these laws, and somehow also, this attitude has given courage to practically everybody to pay little heed to the statutory limitations, thus giving cause to the excessive overspending the authors of the law now in question are seeking to stop or, at least, minimize. I say again, Congress does not have to sacrifice or even just risk the loss or diminution only of any of our sacred liberties to accomplish such a laudable objective. All that has to be done, in my considered opinion, is to have more sincerity, mental honesty and firm determination in the implementation of the limitations fixed in the Election Law, after they have been made more realistic, and real devotion and integrity in the official's charged with said implementation. If few may agree with me, I still entertain the trustful feeling that it is not entirely hoping against hope to expect our national leaders to regain their moral bearings and, in a bold effort to sweep away the darkening clouds of despair that envelope a great many of our countrymen, with well recognized intellectuals and nonpoliticians among them, to take active measures to exert their moral leadership, to the end that our nation may regenerate by revising our people's sense of political values and thus, as much as possible, put exactly where they belong the votebuyers the political terrorist, the opportunists and the unprincipled who have sprung in this era of moral decadence that seem to have come naturally in the wake of the havoc and devastation resulting from the extension of the area of the last world war to our shores. If even this hope cannot linger in our hearts, I dread to imagine how the Filipinos who will come after us will enjoy their lives, when in the exercise of their right of suffrage they would be able to use their freedoms of speech, press, peaceful assembly and redress of grievances only in measured doses to be administered to them by those in power in the legislature.

Frankly, I am not aware of any similar legislation in other democracies of the world. The defenders of the law in question have not cited any. If perhaps the cases of some countries I hear may be mentioned, I loathe to follow their example because I hold it is illogical for us to legislate for our people, who have been reared in the principles of democracy, in the light of what is being done by people who from time immemorial have been disciplined under more or less dictatorial and totalitarian governments. Before I close, I like to add, in the interest of truth, that even stripped of the ornaments of foreign wisdom expressed in embellished language that adorn the opinions of our learned colleagues, Justice Sanchez, Castro and Fernando, their own views so exquisitely articulated by them in their respective singular styles which have been the object of admiration and respect by all, are in themselves not only gems of forensic literatures but are also indubitable evidence of judicial sagacity and learning. I am making it a point to separate their own personal views from their quotations of alien authorities, because as a matter of national pride and dignity, I would like it known that when it comes to constitutional matters particularly, civil liberties and the other individual freedoms, the members of this Tribunal are not without their own native geniuses and individual modes of expression that can stand on their own worth without any reinforcement from imported wisdom and language. May I say in closing that, if my above analysis and perspectives, if these views and conclusions of mine regarding the constitutional questions herein involved are not exactly factual and valid, I would still reiterate them, if only to serve as a feeble voice of alarm that somehow our basic liberties may be in jeopardy and it is best that we revolve early to man the outposts and steady our guard, least we awaken one dawn with nothing left to us but repentance, for having failed to act

when we could, amidst the ashes of the freedoms we did not know how to defend and protect. That eternal, incessant and unyielding vigilance is the price of liberty is still and will ever be true at all times and in all lands.

Philconsa v. Mathay, L-25554, Oct. 4, 1966, citing Philconsa v. Gimenez, L-23326, Dec. 18, 1965; Pascual v. Sec. of Public Works, L-10405, Dec. 29, 1960; Pelaez v. Auditor General, L-23825, Dec. 24, 1965; Iloilo Palay & Corn Planters Asso. v. Feliciano, L24022, March 3, 1965. See also Lidasan v. Commission on Elections, L-28089, Oct. 25, 1967.
10

Footnotes
1

Thomas v. Collins, 323 US 516, 529-530 (1945). Ex parte Hawthorne, 96 ALR 572, 580 (1934).

West Education State Board of Education v. Barnette, 319 US 624, 640 (1943).
2

11

Sec. 50-A, Revised Election Code. Sec. 50-B, Revised Election Code.

12

La Follette v. Kohler, 69 ALR 348, 371. Cf . Nixon v. Herndon, 273 US 536 (1927); Nixon v. Condon, 286, US 73 (1932); Smith v. Allwright, 321 US 649 (1944).
13

Sec. 2 of Act 4880 further amends Sec. 133 of the Revised Election Code to include the two new above sections among the serious election offenses.
5

Art. III, Sec. 1(8) Constitution of the Philippines.

14

Poindexter v. Greenhow, 114 US 217 (1885) and Terminiello v. City of Chicago, 337 US 1 (1951).
6

Chief Justice Concepcion and Justices Reyes, Makalintal, Teehankee and Barredo.
7

65 Phil. 56, 94 (1937) Cf. Yu Congress Eng v. Trinidad, 47 Phil. 385 (1926), 271 US 500; 70 Law ed., 1059.
8

People v. Vera, 65 Phil. 56 (1937). Manila Race Horse Trainers Asso. v. De la Fuente, 88 Phil. 60 (1951); Bautista v. Mun. Council, 98 Phil. 409 (1956).

Cf . Thornhill v. Alabama, 310 US 98 (1940). Justice Malcolm identified freedom of expression with the right to "a full discussion of public affairs." (U.S. v. Bustos 37 Phil. 731, 740 [1918]). Justice Laurel was partial to the ringing words of John Milton "the liberty to know, to utter, and to argue freely according to conscience, above all liberties." (Planas v. Gil, 67 Phil. 61, 81 [1939]). Justice Johnson spoke of freedom of expression in terms of "a full and free discussion of all affairs of public interest." For him then, free speech includes complete liberty to "comment upon the administration of Government as well as the conduct of public men." (U.S. v. Perfecto, 43 Phil. 58, 62 [1922]). When it is remembered further that "time has upset many fighting faiths" there is likely to be a more widespread acceptance for the view of Justice Holmes "that the ultimate good desired is better reached by free trade in ideas, that the best test of truth is the

power of the to get itself accepted in the competition of the market; and that truth is the only ground upon which their wishes safely can be carried out." (Abrams v. United States, 250 US 616, 630 [1919]).
15

25

80 Phil. 71 (1948). Whitney v. California, 274 US 357, 377 (1927). Bridges v. California, 314 US 252 (1941).

26

27

U.S. v. Bustos, 37 Phil. 731 (1918); Quisumbing v. Lopez, 96 Phil. 510 (1955).
16

28

U.S. v. Perfecto, 43 Phil. 58 (1922). Yap v. Boltron, 100 Phil. 324 (1956).

17

Cardozo, Mr. Justice Holmes, 44 Harv. Law Rev. 682, 688 (1931). Also: "Neither has the fundamental case of the clear and-present-danger rule that is, the traditional distinction between thought and action been successfully challenged." Shapiro Freedom of Speech, 71 (1966).
29

18

People v. Alarcon, 69 Phil. M (1939); Teehankee v. Director of Prisons, 76 Phil. 756 (1946); In re Sotto, 82 Phil. 595 (1949); Cabansag v. Fernandez, 102 Phil. 152 (1957); People v. Castelo H. Abaya, L-11816, April 23, 1962; Bridges v. California, 314 US 252 (1941); Pennekamp v. Florida, 328 US 381 (1946); Craig v. Harney, 331 US 367 (1947) ; Woods v. Georgia, 370 US 375 (1962).
19

Emerson, Toward a General Theory of the First Amendment (1966).

20

New York Times Co. v. Sullivan, 376 US 254, 270 (1964).

21

Terminiello v. City of Chicago, 337 US 1, 4 (1949). U.S. v. Schwimmer, 279 US 644; 655 (1929). Emerson, op. cit., 14. 102 Phil. 152, 161 (1957).

22

23

Schenck v. United States, 249 US 47, 52 (1919) this is not to say that the clear and present danger test has always elicited unqualified approval. Prof. Freund entertains what for him are well-founded doubts. Thus: "Even where it is appropriate the clear-and-presentdanger test is an oversimplified judgment unless it takes account also of a number of other factors: the relative seriousness of the danger in comparison with the value of the occasion for speech or political activity; the availability of more moderate controls than those the state has imposed; and perhaps the specific intent with which the speech or activity is launched. No matter how rapidly we utter the phrase 'clear and present danger,' or how closely we hyphenate the words, they are not a substitute for the weighing of values. They tend to convey a delusion of certitude when what is most certain is the complexity of the strands in the web of freedoms which the judge must disentangle." The Supreme Court of the United States, p. 44 (1961).
30

24

37 Phil. 731 (1918).

31

323 US 516 (1945). 92 US 542 (1876). Article 3, Section 1, Paragraph 6, Constitution.

43

United States v. Cardiff, 344 US 174, 176 (1952). NAACP v. Button, 371 US 415, 433 (1963). Section 50-B, Republic Act No. 4880..

32

44

33

45

34

Douglas, The Right of Association, 63 Col. Law Rev. 1362 (1963).

35

46

Ibid, 1363. Ibid, pp. 1374-1375. Cf. Thomas v. Collins, 323 US 516 (1945). Douglas, op. cit., p. 1376.

Justices Dizon, Zaldivar, Castro, Capistrano, and Barredo are not inconfirmity, Section 50-B for them being in its entirety unconstitutional. Justice Makalintal, who would dismiss the petition on the procedural ground previously set forth did not express an opinion.
47

36

Paragraph (a), Section 50-B. Paragraph (f), Section 50-B. Paragraph (b), Section 50-B.

37

48

38

49

39

Near v. Minnesota, 283 US 697 (1931); Lovell v. Griffin, 303 US 444 (1938); Thornhill v. Alabama, 310 us 89 (1940); Murdock v. Pennsylvania, 319 US 105 (1943); Saia v. New York, 334 US 558 (1948); Kunz v. New York, 340 US 290 (1951); Staub v. Boxley 355 US 313 (1958); Smith v. California, 361 US 147 (1959); Talley v. California, 362 US 60 (1960); Cramp v. Board of Public Instruction, 368 US 0278 (1961); Baggett v. Bullitt, 377 US 360 (1964); Aptheker v. Secretary of State, 378 US 500 (1964).
40

50

The votes of the five-named Justices are reinforced by that of Justices Sanchez and Fernando.
51

Paragraph (e), Section 50-B. Such conduct if through organizations, associations, clubs, or communities or through political conventions, caucuses, conferences, meetings, rallies or parades, is provided for earlier in paragraphs (a) and (b).
52

Paragraph (c), Section 50-B. Paragraph (d), Section 50-B.

Section 50-A, Republic Act No. 4880.

53

41

Smith v. California, 361 US 147, 151 (1959).

54

42

Cf. Cramp v. Board of Public Instruction, 368 US 278 (1961).

Interstate Circuit, Inc. v. Dallas, 20 L ed 2d 225 (1968).

55

Whitehill v. Elkins 19 L ed 2d 228 (1967).

56

NAACP v. Alabama, 377 US 288 (1964). Cited in Zwickler v. Koota 19 L ed 2d 444, 451 (1967), which refers to Schneider v. State, 308 US 147 (1939); Cantwell v. Connecticut, 310 US 296 (1940); Martin v. City of Struthers, 319 US 141 (1943); Schware v. Board of Bar Examiners, 353 US 232 (1957); Shelton v. Tucker, 364 US 479 (1960); Louisiana v. NAACP 366 US 293 (1961); NAACP v. Button, 371 US 415 (1963); Aptheker v. Secretary of State, 378 US 500 (1964).
57

United States v. Robel, 19 L ed 2d 508, 515-516 (1967). SANCHEZ, J., concurring and dissenting:
1

As published in 63 O.G. No. 44, pp. 9886-9888.

Should be "of". The bills and the congressional debates attest to this.
3

Shelton v. Tucker, 364 US 479, 488. Cited in Keyishian v. Board of Regents, 385 US 589 (1966).
58

Section 185, Revised Election Code.

NAACP v. Button, 371 US 415 (1963). Cf. United States v. Robell 19 L ed 2d 508 (1967). Paragraph (f), Section 50-B.

59

"No law shag be passed abridging tire freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances." Sec. 8, Art. III, Philippine Constitution. "The right to form associations or societies for purposes not contrary to law shall not be abridged." Sec. 6, Art. III, Philippine Constitution.
5

60

61

Zandueta v. De la Costa, 66 Phil. 615, 625-626 (1938). Laurel, J., concurring. To the same effect, this excerpt from a recent opinion of Warren, C.J.: "We are concerned solely with determining whether the statute before us has exceeded the bounds imposed by the Constitution when First Amendment rights are at stake. The task of writing legislation which will stay within those bounds has been committed to Congress. Our decision today simply recognizes that, when legitimate legislative concerns are expressed in a statute which imposes a substantial burden on protected First Amendment activities, Congress must achieve its goal by means which have a less drastic impact on the continued vitality of First Amendment freedoms... The Constitution and the basic position of First Amendment rights in our democratic fabric demand nothing less."

The earliest enunciation of this doctrine is in Schenk vs. United States (1919), 249 U.S. 47, 52, 63 L. ed. 470, 473-474, and adopted in subsequent cases: Whitney vs. California (1927), 274 U.S. 357, 373, 71 L. ed. 1095, 1105; Bridges vs. California (1941), 314 U.S. 252, 262, 86 L. ed. 192, 202-203; West Virginia State Board of Education vs. Barnette (1943), 319 U.S. 624, 639; Thomas vs. Collins (1944), 323 U.S. 516, 530; Dennis vs. United States (1950), 341 U.S. 494, 610, 95 L. ed. 1137, 1153; Terminiello vs. Chicago (1957), 337 U.S. 1, 5; Edwards vs. So. Carolina (1963), 372 U.S. 229, 237, 9 L. ed. 2d. 697, 703. See: American Bible Society vs. City of Manila, 101 Phil. 386, 398. Sec.

also: Primicias vs. Fugoso, 80 Phil. 71, 87-88, which quoted with approval the Whitney case.
6

New York (1948), 334 U.S. 558, 561, 92 L. ed. 1574, 1577.
11

McCulloch vs. Maryland (1819), 17 U.S. 316, 407, 4 L. ed. 579, 602. "The pole-star for constitutional adjudications is John Marshall's greatest judicial utterance that 'it is a constitution we are expounding.' McCulIoch v. Maryland (US), 4 Wheat 316, 407, 4 L ed 579, 602. That requires both a spacious view in applying an instrument of government 'made for an undefined and expanding future', Hurtado v. California, 110 US 516, 530, 28 L ed 232, 237, 4 S Ct 111, 292, and as narrow a delimitation of the constitutional issues as the circumstances permit. Not the least characteristic of great statesmanship which the Framers manifested was the extent to which they did not attempt to bind the future. It is no less incumbent upon this Court to avoid putting fetters upon the future by needless pronouncements today." Concurring Opinion of Mr. Justice Frankfurter in Youngstown Sheet & Tube Co. vs. Sawyer (1951), 343 U.S. 579, 596-597, 96 L. ed. 1153, 1172.
7

Explanatory Notes to Senate Bill 209 and House Bill 2475, which eventually became Republic Act 4880.
8

"The case confronts us again with the duty our system places on this Court to say where the individual's freedom ends and the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment. Cf. Schneider v. Irvington, 308 US 147, 84 L. ed. 155, 60 S. Ct. 146; Cantwell v. Connecticut 310 US 296, 84 L. ed. 1213, 60 S. Ct. 900, 128 A.L.R. 1352; Prince v. Massachusetts, 321 US 158, 88 L ed 645, 64 S. Ct. 438. That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions. And it is the character of the right, not of the limitation, which determines what standard governs the choice. Compare United Sates v. Carolene Products Co., 304 US 144, 152, 153, 82 L. ed. 1234, 1241, 58 S. Ct. 778. [But see concurring opinion of Mr. Justice Frankfurter in Kovacs v. Cooper (1949), 336 U.S. 77, 90, 93 L. ed. 513, 524, that the preferred position of freedom of speech does not imply that "any law touching communication is infected with presumptive invalidity."]. "For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided and the evil to curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation. Accordingly, whatever occasion

Ichong vs. Hernandez (1957), 101 Phil. 1155, 11631164.

9

Sec. 2, Art. X, Philippine Constitution.

10

West Virginia Bd. of Education vs. Barnette (1943), 319 U.S. 624, 639,87 L. ed. 1638. Thomas vs. Collins (1944), 329 U.S. 516, 530, 89 L. ed. 430, 440; Sala vs.

would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending." Opinion of Mr. Justice Rutledge in Thomas vs. Collins, supra, at 529530.
12

17

Section 54. Revised Election Code.

18

Sec. 8. Rule 13, Rules and Regulations of the Civil Service Commission.
19

Respondent's Memorandum, pp. 10-11, citing authorities.

13

United States vs. Wurzbach (1930), 280 U.S. 396, 399, 74 L. ed. 508, 510, in referring to the term "any political purpose whatever."
20

See: New York Times Co. vs. Sullivan, 376 U.S. 254, 265, 11 L ed 2d. 686, 698 (1964).
14

De Jonge vs. Oregon (1936), 299 U.S. 353, 365, 81 L. ed. 27s, 284. Also NAACP vs. Button (1963), 371 U.S. 415, 429, 9 L. ed. 2d. 405, 415-416: "We meet at the outset the contention that 'solicitation' is wholly outside the area of freedoms protected by the First Amendment. To this contention there are two answers. The first is that a State cannot foreclose the exercise of constitutional rights by mere labels. The second is that abstract discussion is not the only species of communication which the Constitution protects; the First Amendment also protects vigorous advocacy, certainly of lawful ends, against governmental intrusion. Thomas vs. Collins, 323 US 516, 537, 89 L ed 430, 444, 65 S. Ct. 315; Herndon vs. Lowry 301 US 242. 259264, 81 L. ed. 1066, 1075-1078, 57 S. Ct. 732. Cf. Cantwell vs. Connecticut 310 US 296, 84 L. ed. 1213, 60 S. Ct. 900, 128 A.L.R. 1352; Stromberg vs. California, 283 US 359, 369, 75 L ed 1117, 1123, 51 S. Ct. 532, 73 A.L.R. 1484; Terminiello vs. Chicago, 337 US 1, 4, 93 L ed 1131, 1134, 69 S. Ct. 894."
15

During the deliberations of Senate Bill No. 209, Senator Gerardo M. Roxas, referring to the terms "mere expression of opinion" and "solicitation of votes", remarked that "it is difficult to distinguish one from the other." (Session of February 20, 1967)
21

See: Dissenting opinion of Justice Holmes in Gitlow v. New York (1925), 69 L. ed. 1138, 1149; emphasis supplied.
22

See: Thomas vs. Collins, supra.

23

Emphasis supplied. See also: Dombrowski vs. Pfister, infra.

24

Dombrowski vs, Pfister (1965), 380 U.S. 479, 490491, 14 L. ed. 2d., 22, 30.
25

Concurring in Whitney vs. California (1927), 274 U.S. 357, 375, 71 L. ed. 1095, 1106. CASTRO, J., dissenting:
1

Sec. 2, Article XII, Philippine Constitution. Section 29. R.A. 2260, Civil Service Act of 1959.

16

"An Act to Amend Republic Act Numbered One Hundred and Eighty. Otherwise Known as "The Revised Election Code," by Limiting the Period of

Election Campaign, Inserting for this Purpose New Sections Therein to be Known as Sections 50-A and 50-B and Amending Section One Hundred EightyThree of the Same Code." Approved June 17, 1967.
2

13

See, e.g., People v. Evangelista, 57 Phil. 354; People v. Nabong, supra; People v. Feleo, supra; Espuelas v. People, L-2990, Dec. 17, 1951; Cabansag v. Fernandez, 102 Phil. 152.
14

Sec. 185, Revised Election Code.

Schenck v. United States, 249 U.S. 47, 63 L. Ed. 470, 473-74.

15

Sec. 48, Rev. Election Code; see State of Wisconsin v. Kohler, 228 N.W. 895, 69 A.L.R. 348.
4

314 U.S. 252, 86 L. Ed. 192, 203.

Sec. 49, Id.; see 26 Am. Jur. 2d 189. Sec. 49, Id. 308 U.S. 147, 84 L. Ed. 155 165. 323 U.S. 516, 89 L. Ed. 436, 440. Sec. 1, Art. II, Constitution.

16

See Primicias v. Fugoso, supra; Cabansag v. Fernandez, supra. The latter decision contains an extensive discussion of the constitutional development of both the "dangerous tendency" and "clear and present danger" doctrines.
17

339 U.S. 383, 94 L. Ed. 925, 943. At 94 L. Ed. 944.

18

Murdock v. Pennsylvania, 319 US 105, 87 L ed. 1292; Prince v. Massachussetts, 321 US 159, 88 L ed. 645, 651; Follett v. McCormick, 321 US 573, 88 L ed. 938, 940; Marsh v. Alabama, 326 US 501, 90 L ed. 430. 440.
10

19

See, e.g., NAACP v. Alabama, 357 U.S. 449; Barenblatt v. U.S., 360 U.S. 169, 3 L. Ed. 2d 116; Konigsberg v. State Bar, 360 U.S. 36.
20

People v. Nabong 57 Phil. 455; 460-61. See also People v. Feleo, 57 Phil. 451, 454; People v. Feleo, 58 Phil. 573, 575.
11

Primicias v. Fugoso, 80 Phil. 71, 75-76; Gallego v. People, L-18247, Aug. 31, 1963. 12 Gitlow v. New York, 268 U.S. 652, 69 L. Ed. 1138.

Kauper, Civil Liberties and the Constitution, p. 113 (Ann Arbor, 1966)provides a useful summary statement: "The theory of balance of interests represents a wholly pragmatic approach to the problem of First Amendment freedom, indeed, to the whole problem of constitutional interpretation. It rests on the theory that it is the Court's function in the case before it when it finds public interests served by legislation on the one hand, and First Amendment freedoms affected by it on the other, to balance the one against the other and to arrive at a judgment where the greater weight shall be placed. If on balance it appears that the public

interest served by restrictive legislation is of such a character that it outweighs the abridgment of freedom, then the Court will find the legislation valid. In short, the balance-of-interests theory rests on the basis that constitutional freedoms are not absolute, not even those stated in the First Amendment, and that they may be abridged to some extent to serve appropriate and important public interests."
21

the authority which the people have conferred upon them." 2 Cooley, Constitutional Limitations (8th ed. 1927) 885. Similar statements are found in Roth v. United States, 354 U.S. 476, 1 L Ed. 2d 1498; Stromberg v. California, 283 U.S. 359, 75 L. Ed. 1117. The opinion of Mr. Justice Black, speaking for the U.S. Supreme Court in Mills v. Alabama, 384 U.S. 214, 16 L. ed. 2d. 484 at 488, is apropos: "Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of the Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes. The Constitution specifically selected the press, which includes not only newspapers, books, magazines, but also humble leaflets and circulars, see Lovell v. Griffin, 303 US 444, 82 L. ed. 949, 58 S. Ct. 666, to play an important role in the discussion of public affairs. Thus the press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping official elected by the people responsible to all the people whom they were selected to serve. Suppression of the right of the press to praise of criticize governmental agents and the clamor and contend for or against change, which is all that this editorial did, muzzles one of the very agencies of the Farmers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free. The Alabama Corrupt Practices Act by providing criminal penalties for publishing editorials such as the one here silences the press at a time when it can be

Barenblatt v. U.S., supra, at L. Ed. 2d 1121.

22

For a very thoughtful and searching study on the subject, marked by a heavy preference for freedom of expression and the social values it imports, see Emerson, Towards a General Theory of the First Amendment 72 YALE LAW JOURNAL 877 (1963).
23

Winston v. Moore, 244 Pa. 447, 91 A. 520.

24

See Field v. Hall, 201 Ark. 77, 143 S.W. 2d 567; People v. Kramer. 328 Ill., 512, 160 N.E. 60; Dupre v. St. Jacques, 51 R.I. 189, 153 A. 240.
25

American Communications Ass'n v. Douds, supra, at L Ed 947.

26

A passage from Judge Cooley ably expresses the historic value of free political discussion, where he states that the purpose of the First Amendment of the U.S. Constitution is rooted in the need "... to protect parties in the free publication of matters of public concern, to secure their right to a free discussion of public events and public measures, and to enable every citizen at any time to bring the government, and any person in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of

most effective. It is difficult to conceive of a more obvious and flagrant abridgment of the constitutionally guaranteed freedom of the press."
27

1a

Chief Justice Concepcion and Justices Reyes and Teehankee also support our view.
1b

Par (a), Section 50-B.

28

Shelton v. Tucker, 364 U.S. 479, 5 L. Ed. 2d 231, 236.

29

I disagree with the view that the organization of political parties is not included in the prohibition. Can there be an organization more intended to "solicit votes" and to "undertake campaigns or propaganda for or against a party or candidate" than a political party? .
2

Emphasis supplied; Kauper Civil Liberties and the Constitution (Ann Arbor 1966) 99.
30

See, e.g., U.S. v. Contreras, 23 Phil. 513. Hawley v. Wallace, 137 Minn. 183, 163 N.W. 127. Ex Parte Hawthrone, 156 So. 619. Anno: 96 A.L.R. 582-84. De Jonge v. Oregon, 299 U.S. 353, 812 Ed. 278, 284.

31

According to Dr. Jose Aruego the semi-official chronicler of the Constitutional Convention of 1934, the provision was taken not only from the Malolos Constitution but also from the Constitution of the Republic of Spain. (The Framing of the Philippine Constitution by Aruego, Vol. 1, p. 163.) .
3

32

33

Incidentally, the political conventions, referred to is Par. (b) of Section 50-B must be campaign conventions and not conventions for the nominations of official candidates.

34

35

Shelton v. Tucker, supra, at L. Ed. 2d 329 (emphasis supplied).

36

At L. Ed. 442-43 (emphasis supplied). Gakrison v. Louisiana, 379 U.S. 64 (1964).

37

BARREDO, J., concurring and dissenting:

1

Cases in the nature of petitions for declaratory relief or advisory opinion.