(People v. Vera, G.R. No.
45685, November 16, of criticism in the accomplishment of its sworn duty
1937)
FIRST DIVISION
[G.R. No. 45685. November 16, 1937.]
THE PEOPLE OF THE PHILIPPINE ISLANDS and THE
HONGKONG & SHANGHAI BANKING
CORPORATION, petitioners, vs. JOSE O. VERA,
Judge ad interim of the Court of First Instance of
Manila, and MARIANO CU UNJIENG, respondents.
Solicitor-General Tuason and City Fiscal Diaz for the
Government.
DeWitt, Perkins & Ponce Enrile for the Hongkong &
Shanghai Banking Corporation.
Vicente J. Francisco, Feria & La O, Orense &
Belmonte and Gibbs & McDough for respondent
Cu Unjieng.
No appearance for respondent Judge.
SYLLABUS
1. PROBATION; AUTHORITY OF PROBATION COURT TO
LOOK INTO CIRCUMSTANCES OF OFFENSE; SUPERIOR
AND INFERIOR COURTS; LEGAL RELATION AND
ETHICAL STANDARD. Probation implies guilt by
final judgment. While a probation court hearing a
probation case may look into the circumstances
attending the commission of the offense, this does
not authorize it to reverse the findings and
conclusions of the Supreme Court, either directly or
indirectly, especially where from its own admission
reliance was merely had on the printed briefs,
averments, and pleadings of the par ties. As
observed in Shioji vs. Harvey ( [1922], 43 Phil., 333,
337), and reiterated in subsequent cases," if each
and every Court of First Instance could enjoy the
privilege of overruling decisions of the Supreme
Court, there would be no end to litigation, and
judicial chaos would result." A becoming modesty
of inferior courts demands conscious realization of
the position that they occupy in the interrelation
and operation of the integrated judicial system of
the nation.
2. CONSTITUTIONAL LAW; THE PRESIDENT AND HIS
VETO POWER; PRESIDENT'S VETO NOT BINDING ON
THE SUPREME COURT. In vetoing a bill, the
President may express the reasons which he may
deem proper, but his reasons are not binding upon
the Supreme Court in the determination of actual
controversies submitted to it for determination.
Whether or not the Executive should express or in
any manner insinuate his opinion on a matter
encompassed within his broad constitutional power
of veto but which happens to be at the same time
pending determination before the Supreme Court is
a question of propriety for him exclusively to decide
or determine. Whatever opinion is expressed by him
under these circumstances, however, cannot sway
the judgment of the court one way or another and
prevent it from taking what in its opinion is the
proper course of action to take in a given case.
3. ID.; INDEPENDENCE OF THE JUDICIARY. If it is
ever necessary to make any vehement affirmance
during this formative period of our political history, it
is that the judiciary is independent of the Executive
no less than of the Legislative department of our
government independent in the performance of
its functions, undeterred by any consideration, free
from politics, indifferent to popularity, and unafraid
1|CONSTI2_Sec1_Equal clause
as it sees it and understands it.
4. ID.; WHEN CONSTITUTIONALITY MAY BE RAISED.
The constitutionality of an act of the legislature will
not be determined by the courts unless that
question is properly raised and presented in
appropriate cases and is necessary to a
determination of the case; i. e., the issue of
constitutionality must be the very lis mota
presented.
5. ID.; ID.; RESORT TD EXTRAORDINARY LEGAL
REMEDIES; ADJUDICATED CASES. The question of
the constitutionality of an Act of the legislature is
frequently raised in ordinary actions. Nevertheless,
resort may be made to extraordinary legal
remedies, particularly where the remedies in the
ordinary course of law, even if avail able, are not
plain, speedy and adequate. Thus, in Cu Unjieng vs.
Patstone ([1922], 42 Phil., 818), the Supreme Court
held that the question of the constitutionality of a
statute may be raised by the petitioner in
mandamus proceedings (see also 12 C. J., p. 783);
and in Government of the Philippine Islands vs.
Springer ([1927], 50 Phil., 259, affirmed in Springer vs.
Government of the Philippine Islands [1928], 277 U.
S., 189; 72 Law. ed., 845), this court declared an act
of the legislature unconstitutional in an action of
quo warranto brought in the name of the
Government of the Philippines. It has also been held
that the constitutionality of a statute may be
questioned in habeas corpus proceedings (12 C. J.,
p. 783; Bailey on Habeas Corpus, Vol. I, pp. 97, 117),
although there are authorities to the contrary; on
an application for injunction to restrain action
under the challenged statute (mandatory, see Cruz
vs. Youngberg [1931] 56 Phil., 234); and even on an
application for preliminary in junction where the
determination of the constitutional question is
necessary to a decision of the case. (12 C. J., p.
783.) The same may be said as regards prohibition
and certiorari. (Yu Cong Eng vs. Trinidad [1925], 47
Phil., 385; [1926], 271 U. S., 500; 70 Law. ed., 1059;
Bell vs. First Judicial District Court [1905], 28 Nev.,
280; 81 Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982;
1 L. R. A. [N. S.], 843, and cases cited.)
6. ID. ; ID.; ID.; ID.; PROHIBITION; RULE WHERE
JURISDICTION IS EXCLUSIVELY DERIVED FROM
UNCONSTITUTIONAL STATUTE. The writ of
prohibition is an extraordinary judicial writ issuing out
of a court of superior jurisdiction and directed to an
inferior court, for the purpose of preventing the
inferior tribunal from usurping a jurisdiction with
which it is not legally vested. The general rule,
although there is a conflict in the cases, is that the
writ of prohibition will notice where the inferior court
has jurisdiction independent of the statute the
constitutionality of which is questioned, because in
such cases the inferior court having jurisdiction may
itself determine the constitutionality of the statute,
and its decision may be subject to review, and
consequently the complainant in such cases
ordinarily has adequate remedy by appeal without
resort to the writ of prohibition. But where the inferior
court or tribunal derives its jurisdiction exclusively
from an unconstitutional statute, it may be
prevented by the writ of prohibition from en forcing
that statute.
7. ID.; ID.; ID.; ID.; ID.; COURTS OF FIRST INSTANCE;
LIMITED JURISDICTION IN PROBATION CASES. A
Court of First Instance sitting in probation
proceedings is a court of limited jurisdiction. Its
jurisdiction in such proceeding is conferred
exclusively by Act No. 4221 of the Philippine
Legislature.
8. ID.; ID. CONSTITUTIONALITY MUST BE RAISED AT THE
EARLIEST OPPORTUNITY; EXCEPTIONS. As a general
rule, the question constitutionality must be raised at
the earliest opportunity, so that if not raised by the
pleadings, ordinarily it may be raised at the trial,
and if not raised in the trial court, it will not be
considered on appeal. But the general rule admits
of exceptions. Courts, in the exercise of sound
discretion, may determine the time when a
question affecting the constitutionality of a statute
should be presented. Thus, in criminal cases,
although there is a very sharp conflict of authorities,
it is said that the question may be raised for the first
time at any stage of the proceedings, either in
the trial court or on appeal. Even in civil cases, it
has been held that it is the duty of a court to pass
on the constitutional question, though raised for the
first time on appeal, if it appears that a
determination of the question is .necessary to a
decision of the case. And it has been held that a
constitutional question will be considered by an
appellate court at any time, where it involves the
jurisdiction of the court below.
9. ID.; ID.; PERSONAL AND SUBSTANTIAL INTEREST OF
PARTY RIGHT AND INTEREST OF THE PEOPLE OF THE
PHILIPPINES TO CHALLENGE CONSTITUTIONALITY.
The person who impugns the validity of a statute
must have a personal and substantial interest in the
case such that he has sustained, or will sustain,
direct injury as a result of its enforcement. It goes
without saying that if Act No. 4221 really violates the
Constitution, the People of the Philippines, in whose
name the present action is brought, has a
substantial interest in having it set aside. Of greater
import than the damage caused by the illegal
expenditure of public funds is the mortal wound
inflicted upon the fundamental law by the
enforcement of an invalid statute. Hence, the well-
settled rule that the state can challenge the validity
of its own laws.
10. ID.; ID.; RELIANCE ON PROBATION ACT, BY FISCAL
DOES NOT CONSTITUTE ESTOPPEL AGAINST THE
PEOPLE. The mere fact that the Probation Act has
been repeatedly relied upon in the past and all
that time has not been attacked as
unconstitutional by the Fiscal of Manila but, on the
contrary, has been impliedly regarded by him as
constitutional, is no reason for considering the
People of the Philippines estopped from now as
sailing its validity. For courts will pass upon a
constitutional question only when presented before
it in bona fide cases for determination, and the fact
that the question has not been raised before is not
a valid reason for refusing to allow it to be raised
later. The fiscal and all others are justified in relying
upon the statute and treating it as valid until it is
held void by the courts in proper cases.
11. ID.; ID.; WHEN DETERMINATION OF
CONSTITUTIONALITY NECESSARY; WAIVER IF CASE
CAN BE DECIDED ON OTHER POINTS. While the
court will meet the question with firmness, where its
2|CONSTI2_Sec1_Equal clause
decision is indispensable, it is the part of wisdom,
and a just respect for the legislature, renders it
proper, to waive it, if the case in which it arises, can
be decided on other points. (Ex parte Randolph
[1833], 20 F. Cas. No 11,558; 2 Brock., 447. Vide, also
Hoover vs. Wood [1857], 9 Ind., 286, 287.) It has
been held that the determination of a
constitutional question is, necessary whenever it is
essential to the decision of the case, as where the
right of a party is founded solely on a statute the
validity of which is attacked. (12 C. J., p. 782.)
12. ID.; ID.; ID.; REASONS OF PUBLIC POLICY
JUSTIFYING CONSTITUTIONAL INQUIRY. The
Supreme Court will take cognizance of the fact that
the Probation Act is a new addition to our statute
books and its validity has never before been passed
upon by the courts; that many persons accused
and convicted of crime in the City of Manila have
applied for probation; that some of them are
already on probation; that more people will likely
take advantage of the Probation Act in the future;
and that the re respondent M. C. U. has been at
large for a period of about four years since his first
conviction. 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 the
constitutionality of Act No. 4221 be now resolved.
13. ID.; THE JUDICIARY; ITS DUTY TO ENFORCE THE
CONSTITUTION. Under a doctrine peculiarly
American, it is the office and duty of the judiciary to
enforce the Constitution. The Supreme Court, by
clear implication from the provisions of section 2,
subsection 1, and section 10, of Article VIII of the
Constitution, may declare an act of the National
Legislature invalid because in conflict with the
fundamental law. It will not shirk from its sworn duty
to enforce the Constitution. And, in clear cases, it
will not hesitate to Five effect to the supreme law
by setting aside a statute in conflict therewith. This is
of the essence of judicial duty.
14. ID.; ID.; STATUTORY CONSTRUCTION;
PRESUMPTION IN FAVOR OF CONSTITUTIONALITY;
RATIONALE OF PRESUMPTION. All reason able
doubts should be resolved in favor of the
constitutionality of a statute. An act of the
legislature approved by the executive, is presumed
to be within constitutional limitations. The
responsibility of upholding the Constitution rests not
on the courts alone but on the legislature as well.
"The question of the validity of every statute is first
determined by the legislative department of the
government itself." ( U. S. vs. Ten Yu [1912], 24 Phil., 1,
10; Case is. Board of Health and Heiser [1913], 24
Phil., 250, 276; U. S. vs. Joson t1913], 26 Phil., 1.) And
a statute finally comes before the courts sustained
by the sanction of the executive. The members of
the Legislature and the Chief Executive have taken
an oath to support the Constitution and it must be
presumed that they have been true to this oath
and that in enacting and sanctioning a particular
law they did not intend to violate the Constitution.
Then, there is that peculiar political philosophy
which bids the judiciary to reflect the wisdom of the
people as expressed through an elective
Legislature and an elective Chief Executive. It
follows that the courts will not set aside a law as
violative of the Constitution except in clear cases.
15. ID.; THE PARDONING POWER UNDER THE JONES
LAW AT THE CONSTITUTION OF THE PHILIPPINES.
Section 21 of the Jones Law, in e at the time of the
approval of Act No. 4221, vests in the Governor-
General of the Philippines "the exclusive power to
grant pardons and reprieves and remit fines and
forfeitures." This power is now vested in the President
of the Philippines. The provisions of the Jones Law
and the Constitution of the Philippines differ in some
respects. The adjective "exclusive" found in the
Jones Law has been omitted from the Constitution.
Under the Jones Law, as at common law, pardon
could be granted any time after the commission of
the offense, either before or after conviction. The
Governor-General of the Philippines was thus
empowered, like the President of the United States,
to pardon a person before the facts of his case
were fully brought to light. The framers of our
Constitution thought this undesirable and, following
most of the state constitutions, provided that the
pardoning power can only be exercised "after
conviction". So too, under the new Constitution, the
pardoning power does not extend to "cases of
impeachment". This is also the rule generally
followed in the United States.
16. ID.; ID.; ROYAL PARDON UNDER ENGLISH LAW;
POWER OF THE HOUSE OF LORDS. The rule in
England is different. There, a royal pardon can not
be pleaded in bar of an impeachment; "but," says
Blackstone, "after the impeachment has been
solemnly heard and determined, it is not
understood that the king's royal grace is further
restrained or abridged." The reason for the
distinction is obvious. In England, judgment on
impeachment is not confined to mere "removal
from office and disqualification to hold and enjoy
any office of honor, trust, or profit under the
Government" but extends to the whole punishment
attached by law to the offense committed. The
House of Lords, on a conviction may, by its
sentence, inflict capital punishment, perpetual
banishment, fine or imprisonment, depending upon
the gravity of the offense committed, together with
removal from office and incapacity to hold office.
17. ID.; ID.; COMMUTATION AND AMNESTY UNDER
THE PHILIPPINE CONSTITUTION. Our Constitution
makes specific mention of "commutation" and of
the power of the executive to impose, in the par
dons he may grant, such conditions, restrictions and
limitations as he may deem proper. Amnesty may
be granted by the President under the Constitution
but only with the concurrence of the National
Assembly.
18. ID.; ID.; EXCLUSIVE CHARACTER OF THE
PARDONING POWER. The benign prerogative of
mercy reposed in the Executive cannot be taken
away nor fettered by any legislative restrictions, nor
can like power be given by the legislature to any
other officer or authority. The coordinate
departments of government have nothing to do
with the pardoning power, since no person properly
belonging to one of the departments can exercise
any powers appertaining to either of the others
except in cases expressly provided for by the
constitution. (20 R. C. L., pp. 540, 541.) Where the
pardoning power is conferred on the executive
3|CONSTI2_Sec1_Equal clause
without express or implied limitations, the grant is
exclusive, and the legislature can neither exercise
such power itself nor delegate it elsewhere, nor
interfere with or control the proper exercise thereof
(12 C. J., pp. 838, 839).
19. ID.; PROBATION, POWER OF THE PHILIPPINE
LEGISLATURE TO ENACT A PROBATION LAW. The
Philippine Legislature, like the Congress of the
United States, may legally enact a probation law
under its broad power to fix the punishment of any
and all penal offenses. The legislative power to set
punishment for crime is very broad, and in the
exercise of this power the legislature may confer on
trial judges, if it sees fit, the largest discretion as to
the sentence to be imposed, as to the beginning
and end of the punishment, and whether it should
be certain, or indeterminate, or conditional.
Indeed, the Philippine Legislature has defined all
crimes and fixed the penalties for their violation.
Invariably, the legislature has demonstrated the
desire to vest in the courts particularly the trial
courts large discretion in imposing the penalties
which the law prescribes in particular cases. It is
believed that justice can best be served by vesting
this power in the courts, they being in a position to
best determine the penalties which an individual
convict, peculiarly circumstance, should suffer.
20. ID.; ID.; PROBATION AND PARDON NOT
COTERMINOUS; PROBATION DISTINGUISHED FROM
REPRIEVE AND COMMISSION. Probation and
pardon are not coterminous; nor are they the
same. They are actually distinct and different from
each other, both in origin and in nature. In
probation, the probationer is in no true sense, as in
pardon, a freeman He is not finally and completely
exonerated. He is not exempt from the entire
punishment which the law inflicts. Under the
Probation Act, the probationer's case is not
terminated by the mere fact that he is placed on
probation. The probationer, during the period of
probation, remains in legal custody subject to
the control of the probation officer and of the
court, he may be rearrested upon the non-
fulfillment of the conditions of probation and, when
rearrested, may be committed to prison to serve
the sentence originally imposed upon him.
Probation should also be distinguished from
reprieve and from commutation of the sentence.
21. ID.; ID.; ID.; PROBATION NOT IN CONFLICT WITH
PARDONING POWER. The Probation Act does not
conflict with the pardoning power of the Executive.
The pardoning power, in respect to those serving
their probationary sentences, remains as full and
complete as if the Probation Law had never been
enacted. The President may yet pardon the
probationer and thus place it beyond the power of
the court to order his rearrest and imprisonment.
22. ID.; DIVISION OF POWERS. Under our
constitutional system powers of government are
distributed among three coordinate and
substantially independent organs: the legislative,
the executive and the judicial. Each of these
departments of the government derives its authority
from the Constitution which, in turn, is the highest
expression of the popular will. Each has exclusive
cognizance of the matters within its jurisdiction, and
is supreme with in its own sphere.
23. ID.; ID.; DELEGATION OF LEGISLATIVE AUTHORITY
HISTORICAL DEVELOPMENT. The power to make
laws the legislative power is vested in a
bicameral Legislature by the Jones Law and in a
unicameral National Assembly by the Constitution.
The Philippine Legislature or the National Assembly
may not escape its duties and responsibilities by
delegating that power to any other body or
authority. Any attempt to abdicate the power is
unconstitutional and void. on the principle that
potestas de legata non delegare potest. This
principle is said to have originated with the
glossators, was introduced into English law through
a misreading of Bracton, there developed as a
principle of agency, was established by Lord Coke
in the English public law in decisions forbidding the
delegation of judicial power, and found its way into
America as an enlightened principle of free
government. It has since become an accepted
corollary of the principle of separation of powers.
24. ID.; ID.; ID.; RULE FORBIDDING DELEGATION OF
LEGISLATIVE AUTHORITY NOT INFLEXIBLE;
EXCEPTIONS. The rule, however which forbids the
delegation of legislative power is not absolute and
inflexible. It admits of exceptions. An exception
sanctioned by immemorial practice permits the
central legislative body to delegate legislative
powers to local authorities. On quite the same
principle, Congress is empowered to delegate
legislative power to such agencies in the territories
of the United States as it may select. Courts have
also sustained the delegation of legislative power to
the people at large, though some authorities
maintain that this may not be done. Doubt less,
also, legislative power may be delegated by the
Constitution itself. Section 14, paragraph 2, of
Article VI of the Constitution of the Philippines
provides that "The National Assembly may by law
authorize the President, subject to such limitations
and restrictions as it may impose, to fix within
specified limits, tariff rates, import or export quotas,
and tonnage and wharfage dues." And section 16
of the same article of the Constitution provides that
"In times of war or other national emergency, the
National Assembly may by law authorize the
President, for a limited period and subject to such
restrictions as it may prescribe, to promulgate rules
and regulations to carry out a declared national
policy."
25. ID.; ID.; ID.; TEST OF UNDUE DELEGATION; DETAILS
OF EXECUTION. In testing whether a statute
constitutes an undue delegation of legislative
power or not, it is usual to inquire whether the
statute was complete in all its terms and provisions
when it left the hands of the legislature so that
nothing was left to the judgment of any other
appointee or delegate of the legislature. In United
States vs. Ang Tang Ho ( [1922], 43 Phil., 1), the
Supreme Court adhered to the foregoing rule. The
general rule, however, is limited by another rule that
to a certain extent matters of detail may be left to
be filled in by rules and regulations to be adopted
or promulgated by executive officers and
administrative boards. As a rule, an act of the
legislature is incomplete and hence invalid if it does
not lay down any rule or definite standard by which
4|CONSTI2_Sec1_Equal clause
the administrative board may be guided in the
exercise of the discretionary powers delegated to it.
26. ID.; ID.; ID.; PROBATION ACT MAKES VIRTUAL
SURRENDER OF LEGISLATIVE POWER TO PROVINCIAL
BOARDS. The Probation Act does not, by the
force of any of its provisions, fix and impose upon
the provincial boards any standard or guide in the
exercise of their discretionary power. What is
granted is a "roving commission" which enables the
provincial boards to exercise arbitrary discretion. By
section 11 of the Act, the legislature does seemingly
on its own authority extend the benefits of the
Probation Act to the provinces but in reality leaves
the entire matter for the various provincial boards to
determine. If a provincial board does not wish to
have the Act applied in its province, all that it has
to do is to decline to appropriate the needed
amount for the salary of a probation officer. This is a
virtual surrender of legislative power to the
provincial boards.
27. ID.; ID.; ID.; TRUE DISTINCTION BETWEEN POWER
TO MAKE LAW AND DISCRETION AS TO ITS
EXECUTION; ADJUDICATED CASES. The true
distinction is between the delegation of power to
make the law, which necessarily involves a
discretion as to what it shall be, and conferring an
authority or discretion as to its execution, to be
exercised under and in pursuance of the law. The
first cannot be done; to the latter no valid objection
can be made. ( Cincinnati, W. & Z. R. Co. vs. Clinton
County Comrs. [1852], 1 Ohio St., 77, 88. See also,
Sutherland on Statutory Construction, sec. 68.) To
the same effect are decisions of the Supreme Court
in the Municipality of Cardona vs. Municipality of
Binagonan ([1917], 36 Phil., 547); Rubi vs. Provincial
Board of Mindoro ([1919], 39. Phil., 660); and Cruz vs.
Youngberg ([1931], 56 Phil., 234).
28. ID.; ID.; ID.; CONDITIONAL ENFORCEMENT OF A
LAW; RELAXATION OF THE DOCTRINE. Laws may
be made effective on certain contingencies, as by
proclamation of the executive or the adoption by
the people of a particular community (6 R. C. L.,
116, 170- 172; Cooley, Constitutional Limitations, 8th
ed., vol. I, p. 227). In Wayman vs. Southard ([1825],
10 Wheat., 1; 6 Law. ed., 253), the Supreme Court of
the United States ruled that the legislature may
delegate a power not legislative which it may itself
rightfully exercise. The power to ascertain facts is
such a power which may be delegated. There is
nothing essentially legislative in ascertaining the
existence of facts or conditions as the basis of the
taking into effect of a law. That is a mental process
common to all branches of the government.
Notwithstanding the apparent tendency to relax
the rule pro hi biting delegation of legislative
authority on account of the complexity arising from
social and economic forces at work in this modern
industrial age, the orthodox pronouncement of
.Judge Cooley in his work on Constitutional
Limitations finds restatement in Professor
Willoughby's treatise on the Constitution of the
United States and is accepted.
29. ID.; ID.; ID.; OPERATION OF PROBATION ACT NOT
CONTINGENT ON SPECIFIED FACTS OR CONDITIONS;
DISCRETION VESTED IN PROVINCIAL BOARDS
ARBITRARY. The legislature has not made the
operation of the Probation Act contingent upon
specified facts or conditions to be ascertained by
the provincial board. It leaves the entire operation
or non-operation of the law upon the provincial
boards. The discretion vested is arbitrary be cause it
is absolute and unlimited. A provincial board need
not investigate conditions or find any fact, or await
the happening of any specified contingency. It is
bound by no rule limited by no principle of
expediency announced by the legislature. It may
take into consideration certain facts or conditions;
and, again, it may not. It may have any purpose or
no purpose at all. It need not give any reason or
have any reason whatsoever for refusing or failing
to appropriate any funds for the salary of a
probation officer. This is a matter which rests entirely
at its pleasure.
30. ID.; ID.; ID.; LOCAL OPTION LAWS RIGHT OF
LOCAL SELF-GOVERNMENT; SUSPENSION OF
OPERATION OF A GENERAL LAW COUNTENANCED.
The legislature may enact laws for a particular
locality different from those applicable to other
localities and, while recognizing the force of the
principle hereinabove expressed, courts in many
jurisdictions have sustained the constitutionality of
the submission of option laws to the vote of the
people. (6 R. C. L., p. 171.) But option laws thus
sustained treat of subjects purely local in character
which should receive different treatment in different
localities placed under different circumstances.
Without denying the right of local self-government
and the propriety of leaving matters of purely local
concern in the hands of local authorities or for the
people of small communities to pass upon in
matters of general legislation like that which treats
of criminals in general, and as regards the general
subject of probation, discretion may not be vested
in a manner so unqualified and absolute as
provided in Act No. 4221.
31. ID.; ID.; ID.; PROVINCIAL BOARDS EMPOWERED TO
SUSPEND OPERATION OF PROBATION ACT. The
statute does not expressly state that the provincial
boards may suspend the operation of the Probation
Act in particular provinces but, considering that, in
being vested with the authority to appropriate or
not the necessary funds for the salaries of probation
officers they thereby are given absolute discretion
to determine whether or not the law should take
effect or operate in their respective provinces, the
provincial boards are in reality empowered by the
legislature to suspend the operation of the
Probation Act in particular provinces, the Act to be
held in abeyance until the provincial boards should
decide otherwise by appropriating the necessary
funds. The validity of a law is not tested by what has
been done, but by what may be done under its
provisions. (Walter E. Olsen & Co. vs. Aldanese and
Trinidad [1922], 43 Phil., 259; 12 C. ,T., p. 786.)
32. ID.; ID.; ID.; LEGISLATIVE POLICY; EXECUTION
THEREOF CONSTITUTION BOTH A GRANT AND
LIMITATION OF POWER. A great deal of latitude
should be granted to the legislature not only in the
expression of what may be termed legislative policy
but in the elaboration and execution thereof.
"Without this power, legislation would become
oppressive and yet imbecile." (People vs. Reynolds,
5 Gilman, 1.) It has been said that popular
government lives because of the inexhaustible
reservoir of power behind it. It is unquestionable
that the mass of powers of government is vested in
5|CONSTI2_Sec1_Equal clause
the representatives of the people and that these
representatives are no further restrained under our
system than by the express language of the
instrument imposing the restraint, or by particular
provisions which by clear intendment, have that
effect. But it should be borne in mind that a
constitution is both a grant and a limitation of
power and one of these time-honored limitations is
that, subject to certain exceptions, legislative
power shall not be delegated.
33. ID.; EQUAL PROTECTION OF THE LAWS; CLASS
LEGISLATION; CLASSIFICATION ON REASONABLE
BASIS. " . . . nor shall any person be denied the
equal protection of the laws." This basic individual
right sheltered by the Constitution is a restraint on all
the three grand departments of our government
and on the subordinate instrumentalities and
subdivisions thereof, and on many constitutional
powers, like the police power, taxation and
eminent domain. What may be regarded as a
denial of the equal protection of the laws is a
question not always easily determined. No rule that
will cover every case can be formulated. Class
legislation discriminating against some and favoring
others is prohibited. But classification on a
reasonable basis, and not made arbitrarily or
capriciously, is permitted. The classification,
however, to be reasonable must be based on
substantial distinctions which make real differences;
it must be germane to the purposes of the law; it
must not be limited to existing conditions only, and
must apply equally to each member of the class.
34. ID.; ID.; ID.; RESULTANT INEQUALITY FROM
UNWANTED DELEGATION; PROBATION ACT PERMITS
DENIAL OF EQUAL PROTECTION. In the case of Act
No. 4221, the resultant inequality may be said to
flow from the unwarranted delegation of legislative
power to the provincial boards. While inequality
may result in the application of the law and in the
conferment of the benefits therein provided,
inequality is not in all cases the necessary result. But
whatever may be the case, it is clear that section
11 of the Probation Act creates a situation in which
discrimination and inequality are permitted or
allowed. There are, to be sure, abundant authorities
requiring actual denial of the equal protection of
the law before courts should assume the task of
setting aside a law vulnerable on that score, but
premises and circumstances considered, we are of
the opinion that section 11 of Act No. 4221 permits
of the denial of the equal protection of the law and
is on that account bad. We see no difference
between a law which denies equal protection and
a law which permits of such denial. A law may
appear to be fair on its face and impartial in
appearance, yet, if it permits of unjust and illegal
discrimination. it is within the constitutional
prohibition. In other words, statutes may be
adjudged unconstitutional because of their effect
in operation. If a law has the effect of denying the
equal protection of the law it is unconstitutional.
35. ID.; ID.; ID.; SECTION 11 OF PROBATION ACT;
GOVERNMENT OF LAWS; EQUALITY CLAUSE NOT "A
ROPE OF SAND". Under section 11 of the
Probation Act, not only may said Act be in force in
one or several provinces and not be in force in the
other provinces, but one province may appropriate
for the salary of a probation officer of a given year
and have probation during that year and
thereafter decline to make further appropriation,
and have no probation in subsequent years. While
this situation, goes rather to the abuse of discretion
which delegation implies, it is here indicated to
show that the Probation Act sanctions a situation
which is intolerable in a government of laws, and to
prove how easy it is, under the Act, to make the
guaranty of the equality clause but "a rope of
sand."
36. ID.; PARTIAL UNCONSTITUTIONALITY;
PRESUMPTION AGAINST MUTILATION OF STATUTE.
In seeking the legislative intent, the presumption is
against any mutilation of a statute, and the courts
will resort to elimination only where an
unconstitutional pro vision is interjected into a
statute otherwise valid, and is so independent and
separable that its removal will leave the
constitutional features and purposes of the act
substantially unaffected by the process.
37. ID.; SECTION 11 OF PROBATION ACT INSEPARABLE
FROM REST OF ACT; PROBATION AND PROBATION
OFFICERS. Section 11 of the Probation Act (No.
4221) is inseparably linked with the other portions of
the Act that with the elimination of the section what
would be left is the bare idealism of the system,
devoid of any practical benefit to a large number
of people who may be deserving of the intended
beneficial results of that system. The clear policy of
the law, as may be gleaned from a careful
examination of the whole context, is to make the
application of the system dependent entirely upon
the affirmative action of the different provincial
boards. If not one of the provinces and this is the
actual situation now appropriates the necessary
fund for the salary of a probation officer, probation
under Act No. 4221 would be illusory. There can be
no probation without a probation officer. Neither
can there be a probation officer with out a
probation system.
38. ID.; ID.; PROBATION ACT ANALYZED; SECTIONS 10
AND 11 ACT; RULE OF STATUTORY CONSTRUCTION.
The probation officer the administrative personnel
referred to in section 10 are clearly not those
probation officers required to be appointed for the
provinces under section 11. It may be said,
reddendo singula singulis, that the probation
officers referred to in section 10 are to act as such,
not in the various provinces, but in the central office
known as the Probation Office established in the
Department of Justice, under the supervision of a
Chief Probation Officer. When the law provides that
"the probation officer" shall investigate and make
reports to the court; that "the probation officer" shall
supervise and visit the probationer; that the
probationer shall report to the "probation officer",
shall al low "the probation officer" to visit him, shall
truthfully answer any reasonable inquiries on the
part of "the probation officer" concerning his
conduct or condition; that the court shall notify "the
probation officer" in writing of the period and terms
of probation, it means the probation officer who is
in charge of a particular probationer in a particular
province. It never could have been the intention of
the legislature, for instance, to re quire a
probationer in Batanes, to report to a probation
officer in the City of Manila, or to require a
6|CONSTI2_Sec1_Equal clause
probation officer in Manila to visit the probationer in
the said province of Batanes, to place him under his
care, to supervise his conduct, to instruct him
concerning the conditions of his probation or to
perform such other functions as are assigned to him
by law.
39. ID.; ID.; ID.; ID.; WISDOM AND PROPRIETY OF
LEGISLATION; PROGRESSIVE INTERPRETATION AND
JUDICIAL LEGISLATION. That under section 10 the
Secretary of Justice may appoint as many
probation officers as there are provinces or groups
of provinces is, of course, possible. But this would be
arguing on what the law may be or should beand
not on what the law is. Between is and ought there
is a far cry. The wisdom and propriety of legislation is
not for us to pass upon. We may think a law better
otherwise than it is. But much as has been said
regarding progressive interpretation and judicial
legislation we decline to amend the law. We are
not permitted to read into the law matters and
provisions which are not there. Not for any purpose
not even to save a statute from the doom of
invalidity.
40. ID.; ID.; ID.; ID.; APPROPRIATION OF FUNDS;
APPOINTMENT OF PROBATION OFFICERS BY
SECRETARY OF JUSTICE; JUDICIAL NOTICE. The
clear intention and policy of the law is not to make
the Insular Government defray the salaries of
probation officers in the provinces but to make the
provinces defray them should they desire to have
the Probation Act apply thereto. The sum of
P50,000, appropriated "to carry out the purposes of
this Act", is to be applied, among other things, for
the salaries of probation officers in the central office
at Manila. These probation officers are to receive
such compensation as the Secretary of Justice may
fix "until such positions shall have been included in
the Appropriation Act". It was not the intention of
the legislature to empower the Secretary of Justice
to fix the salaries of probation officers in the
provinces or later on to include said salaries in an
appropriation act. Considering, further, that the
sum of P50,000, appropriated in section 10 is to
cover, among other things, the salaries of the
administrative personnel of the Probation Office,
what would be left of the amount can hardly be
said to be sufficient to pay even nominal salaries to
probation officers in the provinces. We take judicial
notice of the fact that there are 48 provinces in the
Philippines, and we do not think it is seriously
contended that, with the fifty thousand pesos
appropriated for the central office, there can be in
each province, as intended, a probation officer
with a salary not lower than that of a provincial
fiscal. If this is correct, the contention that without
section 11 of Act No. 4221 said act is complete is an
impracticable thing under the remainder of the
Act, unless it is conceded that there can be a
system of probation in the provinces without
probation officers.
41. ID.; PROBATION AS DEVELOPMENT OF MODERN
PENOLOGY; PROBATION ACT AS REPUGNANT TO
FUNDAMENTAL LAW. Probation as a development
of modern penology is a commendable system.
Probation laws have been enacted, here and in
other countries, to permit what modern
criminologists call the "individualization of
punishment", the adjustment of the penalty to the
character of the criminal and the circumstances of
his particular case. It provides a period of grace in
order to aid in the rehabilitation of a penitent
offender. It is believed that, in many cases, convicts
may be reformed and their development into
hardened criminals aborted. It, therefore, takes
advantage of an opportunity for reformation and
avoids imprisonment so long as the convict gives
promise of reform. The welfare of society is its chief
end and aim. The benefit to the individual convict is
merely incidental. But while probation is
commendable as a system and its implantation into
the Philippines should be welcomed, the law is set
aside because of repugnancy to the fundamental
law.
42. ID.; CONSTITUTIONAL RELATIONS; RULES OF
STATUTORY CONSTRUCTION; DECISIONS OF UNITED
STATES COURTS; LOCAL CONDITIONS AND
ENVIRONMENT. The constitutional relations
between the Federal and the State governments of
the United States and the dual character of the
American Government is a situation which does not
obtain in the Philippines. The situation of a state of
the American Union or of the District of Columbia
with reference to the Federal Government of the
United States is not the situation of a province with
respect to the Insular Government; the distinct
federal and state judicial organizations of the
United States do not embrace the integrated
judicial system of the Philippines; "General
propositions do not decide concrete cases" and "to
keep pace with . . . new developments of times
and circumstances", fundamental principles should
be interpreted having in view existing local
conditions and environments.
DECISION
LAUREL, J p:
This is an original action instituted in this court on
August 19, 1937, for the issuance of the writs of
certiorari and of prohibition to the Court of First
Instance of Manila so that this court may review the
actuations of the aforesaid Court of First Instance in
criminal case No. 42649 entitled "The People of the
Philippine Islands vs. Mariano Cu Unjieng, et al.",
more particularly the application of the defendant
Mariano Cu Unjieng therein for probation under the
provisions of Act No. 4221, and thereafter prohibit
the said Court of First Instance from taking any
further action or entertaining further the
aforementioned application for probation, to the
end that the defendant Mariano Cu Unjieng may
be forthwith committed to prison in accordance
with the final judgment of conviction rendered by
this court in said case (G. R. No. 41200). 1
Petitioners herein, the People of the Philippine
Islands and the Hongkong and Shanghai Banking
Corporation, are respectively the plaintiff and the
offended party, and the respondent herein
Mariano Cu Unjieng is one of the defendants, in the
criminal case entitled "The People of the Philippine
Islands vs. Mariano Cu Unjieng, et al.", criminal case
No. 42649 of the Court of First Instance of Manila
and G. R. No. 41200 of this court. Respondent
herein, Hon. Jose O. Vera, is the Judge ad interim of
the seventh branch of the Court of First Instance of
Manila, who heard the application of the
7|CONSTI2_Sec1_Equal clause
defendant Mariano Cu Unjieng for probation in the
aforesaid criminal case.
The information in the aforesaid criminal case was
filed with the Court of First Instance of Manila on
October 15, 1931, petitioner herein Hongkong and
Shanghai Banking Corporation intervening in the
case as private prosecutor. After a protracted trial
unparalleled in the annals of Philippine
jurisprudence both in the length of time spent by
the court as well as in the volume of the testimony
and the bulk of exhibits presented, the Court of First
Instance of Manila, on January 8, 1934, rendered a
judgment of conviction sentencing the defendant
Mariano Cu Unjieng to an indeterminate penalty
ranging from four years and two months of prision
correccional to eight years of prison mayor, to pay
the costs and with reservation of civil action to the
offended party, the Hongkong and Shanghai
Banking Corporation. Upon appeal, the court, on
March 26, 1935, modified the sentence to an
indeterminate penalty of from five years and six
months of prision correccional to seven years, six
months and twenty-seven days of prison mayor, but
affirmed the judgment in all other respects. Mariano
Cu Unjieng filed a motion for reconsideration and
four successive motions for new trial which were
denied on December 17, 1935, and final judgment
was accordingly entered on December 18, 1935.
The defendant thereupon sought to have the case
elevated on certiorari to the Supreme Court of the
United States but the latter denied the petition for
certiorari in November, 1936. This court, on
November 24, 1936, denied the petition
subsequently filed by the defendant for leave to file
a second alternative motion for reconsideration or
new trial and thereafter remanded the case to the
court of origin for execution of the judgment.
The instant proceedings have to do with the
application for probation filed by the herein
respondent Mariano Cu Unjieng on November 27,
1936, before the trial court, under the provisions of
Act No. 4221 of the defunct Philippine Legislature.
Herein respondent Mariano Cu Unjieng states in his
petition, inter alia, that he is innocent of the crime
of which he was convicted, that he has no criminal
record and that he would observe good conduct in
the future. The Court of First Instance of Manila,
Judge Pedro Tuason presiding, referred the
application for probation to the Insular Probation
Office which recommended denial of the same on
June 18, 1937. Thereafter, the Court of First Instance
of Manila, seventh branch, Judge Jose O. Vera
presiding, set the petition for hearing on April 5,
1937.
On April 2, 1937, the Fiscal of the City of Manila filed
an opposition to the granting of probation to the
herein respondent Mariano Cu Unjieng. The private
prosecution also filed an opposition on April 5, 1937,
alleging, among other things, that Act No. 4221,
assuming that it has not been repealed by section 2
of Article XV of the Constitution, is nevertheless
violative of section 1, subsection (1), Article III of the
Constitution guaranteeing equal protection of the
laws for the reason that its applicability is not
uniform throughout the Islands and because
section 11 of said Act No. 4221 endows the
provincial boards with the power to make said law
effective or otherwise in their respective provinces.
The private prosecution also filed a supplementary
opposition on April 19, 1937, elaborating on the
alleged unconstitutionality of Act No. 4221, as an
undue delegation of legislative power to the
provincial boards of several provinces (sec. 1, Art.
VI, Constitution). The City Fiscal concurred in the
opposition of the private prosecution except with
respect to the questions raised concerning the
constitutionality of Act No. 4221.
On June 28, 1937, herein respondent Judge Jose O.
Vera promulgated a resolution with a finding that
"las pruebas no han establecido de una manera
concluyente la culpabilidad del peticionario y que
todos los hechos probados no son inconsistentes o
incongruentes con su inocencia" and concludes
that the herein respondent Mariano Cu Unjieng "es
inocente por duda racional" of the crime for which
he stands convicted by this court in G. R. No. 41200,
but denying the latter's petition for probation for the
reason that:
". . . Si este Juzgado concediera la probacion
solicitada por las circunstancias y la historia social
que se han expuesto en el cuerpo de esta
resolucion, que hacen al peticionario acreedor de
la misma, una parte de la opinion publica, atizada
por los recelos y las suspicacias, podria levantarse
indignada contra un sistema de probacion que
permite atisbar en los procedimientos ordinarios de
una causa criminal perturbando la quietud y la
eficacia de las decisiones ya recaidas al traer a la
superficie conclusiones enteramente diferentes, en
menoscabo del interes publico que demanda el
respeto de las leyes y del veredicto judicial."
On July 3, 1937, counsel for the herein respondent
Mariano Cu Unjieng filed an exception to the
resolution denying probation and a notice of
intention to file a motion for reconsideration. An
alternative motion for reconsideration or new trial
was filed by counsel on July 13, 1937. This was
supplemented by an additional motion for
reconsideration submitted on July 14, 1937. The
aforesaid motions were set for hearing on July 31,
1937, but said hearing was postponed at the
petition of counsel for the respondent Mariano Cu
Unjieng because a motion for leave to intervene in
the case as amici curiae signed by thirty-three
(thirty-four) attorneys had just been filed with the
trial court. Attorney Eulalio Chaves whose signature
appears in the aforesaid motion subsequently filed
a petition for leave to withdraw his appearance as
amicus curiae on the ground that the motion for
leave to intervene as amici curiae was circulated
at a banquet given by counsel for Mariano Cu
Unjieng on the evening of July 30, 1937, and that he
signed the same "without mature deliberation and
purely as a matter of courtesy to the person who
invited me (him)."
On August 6, 1937, the Fiscal of the City of Manila
filed a motion with the trial court for the issuance of
an order of execution of the judgment of this court
in said case and forthwith to commit the herein
respondent Mariano Cu Unjieng to jail in obedience
to said judgment.
On August 7, 1937, the private prosecution filed its
opposition to the motion for leave to intervene as
amici curiae aforementioned, asking that a date
be set for the hearing of the same and that, at all
events, said motion should be denied with respect
8|CONSTI2_Sec1_Equal clause
to certain attorneys signing the same who were
members of the legal staff of the several counsel for
Mariano Cu Unjieng. On August 10, 1937, herein
respondent Judge Jose O. Vera issued an order
requiring all parties including the movants for
intervention as amici curiae to appear before the
court on August 14, 1937. On the last mentioned
date, the Fiscal of the City of Manila moved for the
hearing of his motion for execution of judgment in
preference to the motion for leave to intervene as
amici curiae but, upon objection of counsel for
Mariano Cu Unjieng, he moved for the
postponement of the hearing of both motions. The
respondent judge thereupon set the hearing of the
motion for execution on August 21, 1937, but
proceeded to consider the motion for leave to
intervene as amici curiae as in order. Evidence as
to the circumstances under which said motion for
leave to intervene as amici curiae was signed and
submitted to court was to have been heard on
August 19, 1937. But at this juncture, herein
petitioners came to this court on extraordinary legal
process to put an end to what they alleged was an
interminable proceeding in the Court of First
Instance of Manila which fostered "the campaign
of the defendant Mariano Cu Unjieng for delay in
the execution of the sentence imposed by this
Honorable Court on him, exposing the courts to
criticism and ridicule because of the apparent
inability of the judicial machinery to make effective
a final judgment of this court imposed on the
defendant Mariano Cu Unjieng."
The scheduled hearing before the trial court was
accordingly suspended upon the issuance of a
temporary restraining order by this court on August
21, 1937.
To support their petition for the issuance of the
extraordinary writs of certiorari and prohibition,
herein petitioners allege that the respondent judge
has acted without jurisdiction or in excess of his
jurisdiction:
I. Because said respondent judge lacks the power
to place respondent Mariano Cu Unjieng under
probation for the following reasons:
(1) Under section 11 of Act No. 4221, the said Act of
the Philippine Legislature is made to apply only to
the provinces of the Philippines; it nowhere states
that it is to be made applicable to chartered cities
like the City of Manila.
(2) While section 37 of the Administrative Code
contains a proviso to the effect that in the absence
of a special provision, the term "province" may be
construed to include the City of Manila for the
purpose of giving effect to laws of general
application, it is also true that Act No. 4221 is not a
law of general application because it is made to
apply only to those provinces in which the
respective provincial boards shall have provided for
the salary of a probation officer.
(3) Even if the City of Manila were considered to be
a province, still, Act No. 4221 would not be
applicable to it because it has not provided for the
salary of a probation officer as required by section
11 thereof; it being immaterial that there is an
Insular Probation Office willing to act for the City of
Manila, said Probation Office provided for in section
10 of Act No. 4221 being different and distinct from
the Probation Officer provided for in section 11 of
the same Act.
II. Because even if the respondent judge originally
had jurisdiction to entertain the application for
probation of the respondent Mariano Cu Unjieng,
he nevertheless acted without jurisdiction or in
excess thereof in continuing to entertain the motion
for reconsideration and by failing to commit
Mariano Cu Unjieng to prison after he had
promulgated his resolution of June 28, 1937,
denying Mariano Cu Unjieng's application for
probation, for the reason that:
(1) His jurisdiction and power in probation
proceedings is limited by Act No. 4221 to the
granting or denying of applications for probation.
(2) After he had issued the order denying Mariano
Cu Unjieng's petition for probation on June 28, 1937,
it became final and executory at the moment of its
rendition.
(3) No right of appeal exists in such cases.
(4) The respondent judge lacks the power to grant
a rehearing of said order or to modify or change
the same.
III. Because the respondent judge made a finding
that Mariano Cu Unjieng is innocent of the crime for
which he was convicted by final judgment of this
court, which finding is not only presumptuous but
without foundation in fact and in law, and is
furthermore in contempt of this court and a
violation of the respondent's oath of office as ad
interim judge of first instance.
IV. Because the respondent judge has violated and
continues to violate his duty, which became
imperative when he issued his order of June 28,
1937, denying the application for probation, to
commit his co-respondent to jail.
Petitioners also aver that they have no other plain,
speedy and adequate remedy in the ordinary
course of law.
In a supplementary petition filed on September 9,
1937, the petitioner Hongkong and Shanghai
Banking Corporation further contends that Act No.
4221 of the Philippine Legislature providing for a
system of probation for persons eighteen years of
age or over who are convicted of crime, is
unconstitutional because it is violative of section 1,
subsection (1), Article III, of the Constitution of the
Philippines guaranteeing equal protection of the
laws because it confers upon the provincial board
of each province the absolute discretion to make
said law operative or other wise in their respective
provinces, because it constitutes an unlawful and
improper delegation to the provincial boards of the
several provinces of the legislative power lodged
by the Jones Law (section 8), in the Philippine
Legislature and by the Constitution (section 1, Art.
VI) in the National Assembly; and for the further
reason that it gives the provincial boards, in
contravention of the Constitution (section 2, Art.
VIII) and the Jones Law (section 28), the authority to
enlarge the powers of the Courts of First Instance of
the different provinces without uniformity. In
another supplementary petition dated September
14, 1937, the Fiscal of the City of Manila, in behalf of
one of the petitioners, the People of the Philippine
Islands, concurs for the first time with the issues
raised by the other petitioner regarding the
9|CONSTI2_Sec1_Equal clause
constitutionality of Act No. 4221, and in the oral
argument held on October 6, 1937, further
elaborated on the theory that probation is a form of
reprieve and therefore Act No. 4221 is an
encroachment on the exclusive power of the Chief
Executive to grant pardons and reprieves. On
October 7, 1937, the City Fiscal filed two
memorandums in which he contended that Act No.
4221 not only encroaches upon the pardoning
power of the executive, but also constitutes an
unwarranted delegation of legislative power and a
denial of the equal protection of the laws. On
October 9, 1937, two memorandums, signed jointly
by the City Fiscal and the Solicitor-General, acting
in behalf of the People, of the Philippine Islands,
and by counsel for the other petitioner, the
Hongkong and Shanghai Banking Corporation, one
sustaining the power of the state to impugn the
validity of its own laws and the other contending
that Act No. 4221 constitutes an unwarranted
delegation of legislative power, were presented.
Another joint memorandum was filed by the same
persons on the same day, October 9, 1937, alleging
that Act No. 4221 is unconstitutional because it
denies the equal protection of the laws and
constitutes an unlawful delegation of legislative
power and, further, that the whole Act is void; that
the Commonwealth is not estopped from
questioning the validity of its laws; that the private
prosecution may intervene in probation
proceedings and may attack the probation law as
unconstitutional; and that this court may pass upon
the constitutional question in prohibition
proceedings.
Respondents in their answer dated August 31, 1937,
as well as in their oral argument and
memorandums, challenge each and every one of
the foregoing proposition raised by the petitioners.
As special defenses, respondents allege:
(1) That the present petition does not state facts
sufficient in law to warrant the issuance of the writ
of certiorari or of prohibition.
(2) That the aforesaid petition is premature because
the remedy sought by the petitioners is the very
same remedy prayed for by them before the trial
court and was still pending resolution before the
trial court when the present petition was filed with
this court.
(3) That the petitioners having themselves raised the
question as to the execution of judgment before
the trial court, said trial court has acquired exclusive
jurisdiction to resolve the same under the theory
that its resolution denying probation is
unappealable.
(4) That upon the hypothesis that this court has
concurrent jurisdiction with the Court of First
Instance to decide the question as to whether or
not execution will lie, this court nevertheless cannot
exercise said jurisdiction while the Court of First
Instance has assumed jurisdiction over the same
upon motion of herein petitioners themselves.
(5) That the procedure followed by the herein
petitioners in seeking to deprive the trial court of its
jurisdiction over the case and elevate the
proceedings to this court, should not be tolerated
because it impairs the authority and dignity of the
trial court which court while sitting in probation
cases is "a court of limited jurisdiction but of great
dignity."
(6) That, under the supposition that this court has
jurisdiction to resolve the question submitted to and
pending resolution by the trial court, the present
action would not lie because the resolution of the
trial court denying probation is appealable; for
although the Probation Law does not specifically
provide that an applicant for probation may
appeal from a resolution of the Court of First
Instance denying probation, still it is a general rule in
this jurisdiction that a final order, resolution or
decision of an inferior court is appealable to the
superior court.
(7) That the resolution of the trial court denying
probation of herein respondent Mariano Cu Unjieng
being appealable, the same had not yet become
final and executory for the reason that the said
respondent had filed an alternative motion for
reconsideration and new trial within the requisite
period of fifteen days, which motion the trial court
was not able to resolve in view of the restraining
order improvidently and erroneously issued by this
court.
(8) That the Fiscal of the City of Manila had by
implication admitted that the resolution of the trial
court denying probation is not final and
unappealable when he presented his answer to the
motion for reconsideration and agreed to the
postponement of the hearing of the said motion.
(9) That under the supposition that the order of the
trial court denying probation is not appealable, it is
incumbent upon the accused to file an action for
the issuance of the writ of certiorari with
mandamus, it appearing that the trial court,
although it believed that the accused was entitled
to probation, nevertheless denied probation for
fear of criticism because the accused is a rich man;
and that, before a petition for certiorari grounded
on an irregular exercise of jurisdiction by the trial
court could lie, it is incumbent upon the petitioner
to file a motion for reconsideration specifying the
error committed so that the trial court could have.
an opportunity to correct or cure the same.
(10) That on the hypothesis that the resolution of the
trial court is not appealable, the trial court retains its
jurisdiction within a reasonable time to correct or
modify it in accordance with law and justice; that
this power to alter or modify an order or resolution is
inherent in the courts and may be exercised either
motu proprio or upon petition of the proper party,
the petition in the latter case taking the form of a
motion for reconsideration.
(11) That on the hypothesis that the resolution of the
trial court is appealable as respondents allege, said
court cannot order execution of the same while it is
on appeal, for then the appeal would not be
availing because the doors of probation would be
closed from the moment the accused commences
to serve his sentence (Act No. 4221, sec. 1; U. S. vs.
Cook, 19 Fed. [2d], 827).
In their memorandums filed on October 23, 1937,
counsel for the respondents maintain that Act No.
4221 is constitutional because, contrary to the
allegations of the petitioners, it does not constitute
an undue delegation of legislative power, does not
infringe the equal protection clause of the
Constitution, and does not encroach upon the
10 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
pardoning power of the Executive. In an additional
memorandum filed on the same date, counsel for
the respondents reiterate the view that section 11
of Act No. 4221 is free from constitutional objections
and contend, in addition, that the private
prosecution may not intervene in probation
proceedings, much less question the validity of Act
No. 4221; that both the City Fiscal and the Solicitor-
General are estopped from questioning the validity
of the Act; that the validity of the Act cannot be
attacked for the first time before this court; that
prohibition is unavailable; and that, in any event,
section 11 of Act No. 4221 is separable from the rest
of the Act. The last memorandum for the
respondent Mariano Cu Unjieng was denied for
having been filed out of time but was admitted by
resolution of this court and filed anew on November
5, 1937. This memorandum elaborates on some of
the points raised by the respondents and refutes
those brought up by the petitioners.
In the scrutiny of the pleadings and examination of
the various aspect of the present case, we noted
that the court below, in passing upon the merits of
the application of the respondent Mariano Cu
Unjieng and in denying the said application
assumed the task not only of considering the merits
of the application, but of passing upon the
culpability of the applicant, notwithstanding the
final pronouncement of guilt by this court. (G. R. No.
41200.) Probation implies guilt by final judgment.
While a probation court hearing a probation case
may look into the circumstances attending the
commission of the offense, this does not authorize it
to reverse the findings and conclusions of this court,
either directly or indirectly, especially where from its
own admission reliance was merely had on the
printed briefs, averments, and pleadings of the
parties. As already observed by this court in Shioji vs.
Harvey ([1922], 43 Phil., 333, 337), and reiterated in
subsequent cases, "if each and every Court of First
Instance could enjoy the privilege of overruling
decisions of the Supreme Court, there would be no
end to litigation, and judicial chaos would result." A
becoming modesty of inferior courts demands
conscious realization of the position that they
occupy in the interrelation and operation of the
integrated judicial system of the nation.
After threshing carefully the multifarious issues raised
by both counsel for the petitioners and the
respondents, this court prefers to cut the Gordian
knot and take up at once the two fundamental
questions presented, namely, (1) whether or not the
constitutionality of Act No. 4221 has been properly
raised in these proceedings; and (2) in the
affirmative, whether or not said Act is constitutional.
Consideration of these issues will involve a
discussion of certain incidental questions raised by
the parties.
To arrive at a correct conclusion on the first
question, resort to certain guiding principles is
necessary. It is a well-settled rule that the
constitutionality of an act of the legislature will not
be determined by the courts unless that question its
properly raised and presented in appropriate cases
and is necessary to a determination of the case; i.
e., the issue of constitutionality must be the very lis
mota presented. (McGirr vs. Hamilton and Abreu
[1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C.
J., pp. 780-782, 783.)
The question of the constitutionality of an act of the
legislature is frequently raised in ordinary actions.
Nevertheless, resort may be made to extraordinary
legal remedies, particularly where the remedies in
the ordinary course of law even if available, are not
plain, speedy and adequate. Thus, in Cu Unjieng vs.
Patstone ([1922], 42 Phil., 818), this court held that
the question of the constitutionality of a statute
may be raised by the petitioner in -mandamus
proceedings (see, also, 12 C. J., p. 783); and in
Government of the Philippine Islands vs. Springer
([1927], 50 Phil., 259 [affirmed in Springer vs.
Government of the Philippine Islands (1928), 277 U.
S., 189; 72 Law. ed., 845]), this court declared an
act of the legislature unconstitutional in an action
of quo warranto brought in the name of the
Government of the Philippines. It has also been held
that the constitutionality of a statute may be
questioned in habeas corpus proceedings (12 C. J.,
p. 783; Bailey on Habeas Corpus, Vol. I, pp. 97, 117),
although there are authorities to the contrary; on
an application for injunction to restrain action
under the challenged statute (mandatory, see Cruz
vs. Youngberg [1931], 56 Phil., 234); and even on an
application for preliminary injunction where the
determination of the constitutional question is
necessary to a decision of the case. (12 C. J., p.
783.) The same may be said as regards prohibition
and certiorari. (Yu Cong Eng vs. Trinidad [1925], 47
Phil., 385; [1926], 271 U. S., 500: 70 Law. ed., 1059;
Bell vs. First Judicial District Court [1905], 28 Nev.,
280; 81 Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982;
1 L. R. A. [N. S], 843, and cases cited). The case of
Yu Cong Eng vs. Trinidad, supra, decided by this
court twelve years ago was, like the present one,
an original action for certiorari and prohibition. The
constitutionality of Act No. 2972, popularly known as
the Chinese Bookkeeping Law, was there
challenged by the petitioners, and the
constitutional issue was met squarely by the
respondents in a demurrer. A point was raised
"relating to the propriety of the constitutional
question being decided in original proceedings in
prohibition." This court decided to take up the
constitutional question and, with two justices
dissenting, held that Act No. 2972 was
constitutional. The case was elevated on writ of
certiorari to the Supreme Court of the United States
which reversed the judgment of this court and held
that the Act was invalid. (271 U. S., 500; 70 Law. ed.,
1059.) On the question of jurisdiction, however, the
Federal Supreme Court, though its Chief Justice,
said:
"By the Code of Civil Procedure of the Philippine
Islands, section 516, the Philippine supreme court is
granted concurrent jurisdiction in prohibition with
courts of first instance over inferior tribunals or
persons, and original jurisdiction over courts of first
instance, when such courts are exercising functions
without or in excess of their jurisdiction. It has been
held by that Court that the question of the validity
of a criminal statute must usually be raised by a
defendant in the trial court and be carried regularly
in review to the Supreme Court. (Cadwallader-
Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192.) But
in this case where a new act seriously affected
11 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
numerous persons and extensive property rights,
and was likely to cause a multiplicity of actions, the
Supreme Court exercised its discretion to bring the
issue of the act's validity promptly before it and
decide it in the interest of the orderly administration
of justice. The court relied by analogy upon the
cases of Ex parte Young (209 U. S., 123; 52 Law. ed.,
714; 13 L. R. A. [N. S.], 932; 28 Sup. Ct. Rep., 441; 14
Ann. Cas., 764; Traux vs. Raich, 239 U. S., 33, 60 Law.
ed., 131; L. R. A. 1916D, 545; 36 Sup. Ct. Rep., 7; Ann.
Cas., 1917B, 283; and Wilson vs. New, 243 U. S., 332;
61 Law. ed., 755; L. R. A. 1917E, 938; 37 Sup. Ct.
Rep., 298; Ann. Cas., 1918A, 1024). Although
objection to the jurisdiction was raised by demurrer
to the petition, this is now disclaimed on behalf of
the respondents, and both parties ask a decision on
the merits. In view of broad powers in prohibition
granted to that court under the Island Code, we
acquiesce in the desire of the parties."
The writ of prohibition is an extraordinary judicial writ
issuing out of a court of superior jurisdiction and
directed to an inferior court, for the purpose of
preventing the inferior tribunal from usurping a
jurisdiction with which it is not legally vested.) (High,
Extraordinary Legal Remedies, p. 705.) The general
rule, although there is a conflict in the cases, is that
the writ of prohibition will not lie where the inferior
court has jurisdiction independent of the statute the
constitutionality of which is questioned, because in
such cases the inferior court having jurisdiction may
itself determine the constitutionality of the statute,
and its decision may be subject to review, and
consequently the complainant in such cases
ordinarily has adequate remedy by appeal without
resort to the writ of prohibition. But where the inferior
court or tribunal derives its jurisdiction exclusively
from an unconstitutional statute, it may be
prevented by the writ of prohibition from enforcing
that statute. (50 C. J., 670; Ex parte Roundtree
[1874], 51 Ala., 42; In re Macfarland. 30 App. [D. C.],
365; Curtis vs. Cornish [1912], 109 Me., 384; 84 A.,
799; Pennington vs. Woolfolk [1880], 79 Ky., 13; State
vs. Godfrey [1903], 54 W. Va., 54; 46 S. E., 185;
Arnold vs. Shields [1837], 5 Dana, 19; 30 Am. Dec.,
669.)
Courts of First Instance sitting in probation
proceedings derive their jurisdiction solely from Act
No. 4221 which prescribes in detailed manner the
procedure for granting probation to accused
persons after their conviction has become final and
before they have served their sentence. It is true
that at common law the authority of the courts to
suspend temporarily the execution of a sentence is
recognized and, according to a number of state
courts, including those of Massachusetts, Michigan,
New York, and Ohio, the power is inherent in the
courts (Commonwealth vs. Dowdican's Bail [1874],
115 Mass., 133; People vs. Stickel [1909], 156 Mich.,
557; 121 N. W., 497; People ex rel. Forsyth vs. Court
of Sessions [1894], 141 N. Y., 288; Weber vs. State
[1898], 58 Ohio St., 616). But, in the leading case of
Ex parte United States ([1916], 242 U. S., 27; 61 Law.
ed., 129; L. R. A., 1917E, 1178; 37 Sup. Ct. Rep., 72;
Ann. Cas. 1917B, 355), the Supreme Court of the
United States expressed the opinion that under the
common law the power of the court was limited to
temporary suspension, and brushed aside the
contention as to inherent judicial power saying,
through Chief Justice White:
"Indisputably under our constitutional system the
right to try offenses against the criminal laws and
upon conviction to impose the punishment
provided by law is judicial, and it is equally to be
conceded that, in exerting the powers vested in
them on such subject, courts inherently possess
ample right to exercise reasonable, that is, judicial,
discretion to enable them to wisely exert their
authority. But these concessions afford no ground
for the contention as to power here made, since it
must rest upon the proposition that the power to
enforce begets inherently a discretion to
permanently refuse to do so. And the effect of the
proposition urged upon the distribution of powers
made by the Constitution will become apparent
when it is observed that indisputable also is it that
the authority to define and fix the punishment for
crime is legislative and includes the right in
advance to bring within judicial discretion, for the
purpose of executing the statute, elements of
consideration which would be otherwise beyond
the scope of judicial authority, and that the right to
relieve from the punishment, fixed by law and
ascertained according to the methods by it
provided belongs to the executive department."
Justice Carson, in his illuminating concurring opinion
in the case of Director of Prisons vs. Judge of First
Instance of Cavite (29 Phil., 265), decided by this
court in 1915, also reached the conclusion that the
power to suspend the execution of sentences
pronounced in criminal cases is not inherent in the
judicial function. "All are agreed", he said, "that in
the absence of statutory authority, it does not lie
within the power of the courts to grant such
suspensions." (at p. 278.) Both petitioners and
respondents are correct, therefore, when they
argue that a Court of First Instance sitting in
probation proceedings is a court of limited
jurisdiction. Its jurisdiction in such proceedings is
conferred exclusively by Act No. 4221 of the
Philippine Legislature.
It is, of course, true that the constitutionality of a
statute will not be considered on application for
prohibition where the question has not been
properly brought to the attention of the court by
objection of some kind (Hill vs. Tarver [1901], 130
Ala., 592; 30 S., 499; State ex rel. Kelly vs. Kirby
[1914], 260 Mo., 120; 168 S. W., 746). In the case at
bar, it is unquestionable that the constitutional issue
has been squarely presented not only before this
court by the petitioners but also before the trial
court by the private prosecution. The respondent,
Hon. Jose O. Vera, however, acting as judge of the
court below, declined to pass upon the question on
the ground that the private prosecutor, not being a
party whose rights are affected by the statute, may
not raise said question. The respondent judge cited
Cooley on Constitutional Limitations (Vol. I, p. 339;
12 C. J., sec. 177, pp. 760 and 762), and McGlue vs.
Essex County ([1916], 225 Mass., 59; 113 N. E., 742,
743), as authority for the proposition that a court will
not consider any attack made on the
constitutionality of a statute by one who has no
interest in defeating it because his rights are not
affected by its operation. The respondent judge
12 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
further stated that it may not motu proprio take up
the constitutional question and, agreeing with
Cooley that "the power to declare a legislative
enactment void is one which the judge, conscious
of the fallibility of the human judgment, will shrink
from exercising in any case where he can
conscientiously and with due regard to duty and
official oath decline the responsibility"
(Constitutional Limitations, 8th ed., Vol. I, p. 332),
proceeded on the assumption that Act No. 4221 is
constitutional. While, therefore, the court a
quoadmits that the constitutional question was
raised before it, it refused to consider the question
solely because it was not raised by a proper party.
Respondents herein reiterate this view. The
argument is advanced that the private prosecution
has no personality to appear in the hearing of the
application for probation of defendant Mariano Cu
Unjieng in criminal case No. 42648 of the Court of
First Instance of Manila, and hence the issue of
constitutionality was not properly raised in the lower
court. Although, as a general rule, only those who
are parties to a suit may question the
constitutionality of a statute involved in a judicial
decision, it has been held that since the decree
pronounced by a court without jurisdiction is void,
where the jurisdiction of the court depends on the
validity of the statute in question, the issue of
constitutionality will be considered on its being
brought to the attention of the court by persons
interested in the effect to be given the statute. (12
C. J., sec. 184, p. 766.) And, even if we were to
concede that the issue was not properly raised in
the court below by the proper party, it does not
follow that the issue may not be here raised in an
original action of certiorari and prohibition. It is true
that, as a general rule, the question of
constitutionality must be raised at the earliest
opportunity, so that if not raised by the pleadings,
ordinarily it may not be raised at the trial, and if not
raised in the trial court, it will not be considered on
appeal. (12 C. J., p. 786. See, also, Cadwallader-
Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-
195.) But we must state that the general rule admits
of exceptions. Courts, in the exercise of sound
discretion, may determine the time when a
question affecting the constitutionality of a statute
should be presented. (In re Woolsey [1884], 95 N. Y.,
135, 144.) Thus, in criminal cases, although there is a
very sharp conflict of authorities, it is said that the
question may be raised for the first time at any
stage of the proceedings, either in the trial court or
on appeal. (12 C. J., p. 786.) Even in civil cases, it
has been held that it is the duty of a court to pass
on the constitutional question, though raised for the
first time on appeal, if it appears that a
determination of the question is necessary to a
decision of the case. (McCabe's Adm'x. vs.
Maysville & B. S. R. Co. [1910], 136 Ky., 674; 124 S. W.,
892; Lohmeyer vs. St. Louis Cordage Co. [1908], 214
Mo., 685; 113 S. W., 1108; Carmody vs. St. Louis
Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And it
has been held that a constitutional question will be
considered by an appellate court at any time,
where it involves the jurisdiction of the court below
(State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As
to the power of this court to consider the
constitutional question raised for the first time
before this court in these proceedings, we turn
again and point with emphasis to the case of Yu
Cong Eng vs. Trinidad, supra. And on the hypothesis
that the Hongkong & Shanghai Banking
Corporation, represented by the private
prosecution, is not the proper party to raise the
constitutional question here a point we do not
now have to decide we are of the opinion that
the People of the Philippines, represented by the
Solicitor-General and the Fiscal of the City of
Manila, is such a proper party in the present
proceedings. The unchallenged rule is that the
person who impugns the validity of a statute must
have a personal and substantial interest in the case
such that he has sustained, or will sustain, direct
injury as a result of its enforcement. It goes without
saying that if Act No. 4221 really violates the
Constitution, the People of the Philippines, in whose
name the present action is brought, has a
substantial interest in having it set aside. Of greater
import than the damage caused by the illegal
expenditure of public funds is the mortal wound
inflicted upon the fundamental law by the
enforcement of an invalid statute. Hence, the well-
settled rule that the state can challenge the validity
of its own laws. In Government of the Philippine
Islands vs. Springer ([1927], 50 Phil., 259 (affirmed in
Springer vs. Government of the Philippine Islands
[1928], 277 U. S., 189; 72 Law. ed., 845), this court
declared an act of the legislature unconstitutional
in an action instituted in behalf of the Government
of the Philippines. In Attorney General vs. Perkins
([1889], 73 Mich., 303, 311, 312; 41 N. W. 426, 428,
429), the State of Michigan, through its Attorney
General, instituted quo warranto proceedings to
test the right of the respondents to renew a mining
corporation, alleging that the statute under which
the respondents base their right was
unconstitutional because it impaired the obligation
of contracts. The capacity of the chief law officer
of the state to question the constitutionality of the
statute was itself questioned. Said the Supreme
Court of Michigan, through Champlin, J.:
". . . The idea seems to be that the people are
estopped from questioning the validity of a law
enacted by their representatives; that to an
accusation by the people of Michigan of
usurpation upon their government, a statute
enacted by the people of Michigan is an adequate
answer. The last proposition is true, but, if the statute
relied on in justification is unconstitutional, it is a
statute only in form, and lacks the force of law, and
is of no more saving effect to justify action under it
than if it had never been enacted. The constitution
is the supreme law, and to its behests the courts, the
legislature, and the people must bow. . . . The
legislature and the respondents are not the only
parties in interest upon such constitutional
questions. As was remarked by Mr. Justice Story, in
speaking of an acquiescence by a party affected
by an unconstitutional act of the legislature: 'The
people have a deep and vested interest in
maintaining all the constitutional limitations upon
the exercise of legislative powers.' (Allen vs.
Mckeen, 1 Sum., 314.)"
In State vs. Doane ([1916], 98 Kan., 435; 158 Pac.,
38, 40), an original action (mandamus) was brought
by the Attorney-General of Kansas to test the
13 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
constitutionality of a statute of the state. In
disposing of the question whether or not the state
may bring the action, the Supreme Court of Kansas
said:
". . . The state is a proper party indeed, the
proper party to bring this action. The state is
always interested where the integrity of its
Constitution or statutes is involved.
"'It has an interest in seeing that the will of the
Legislature is not disregarded, and need not, as an
individual plaintiff must, show grounds of fearing
more specific injury. (State vs. Kansas City, 60 Kan.,
518 [57 Pac., 118]'). (State vs. Lawrence, 80 Kan.,
707; 103 Pac., 839.)
"Where the constitutionality of a statute is in doubt
the state's law officer, its Attorney-General, or
county attorney, may exercise his best judgment as
to what sort of action he will bring to have the
matter determined, either by quo warranto to
challenge its validity (State vs. Johnson, 61 Kan.,
803; 60 Pac., 1068; 49 L. R. A., 662), by mandamus to
compel obedience to its terms (State vs. Dolley, 82
Kan., 533; 108 Pac., 846), or by injunction to restrain
proceedings under its questionable provisions (State
ex rel. vs. City of Neodesha, 3 Kan. App., 319; 45
Pac., 122)."
Other courts have reached the same conclusion
(See State vs. St. Louis S. W. Ry. Co. [1917], 197 S. W.,
1006; State vs. S. H. Kress & Co. [1934], 155 S., 823;
State vs. Walmsley [1935], 181 La., 597; 160 S., 91;
State vs. Board of County Comr's [1934], 39 Pac.
[2d], 286; First Const. Co. of Brooklyn vs. State [1917],
221 N. Y., 295; 116 N. E., 1020; Bush vs. State [1918],
187 Ind., 339; 119 N. E., 417; State vs. Watkins [1933],
176 La., 837; 147 S., 8, 10, 11). In the case last cited,
the Supreme Court of Louisiana said:
"It is contended by counsel for Herbert Watkins that
a district attorney, being charged with the duty of
enforcing the laws, has no right to plead that a law
is unconstitutional. In support of the argument, three
decisions are cited, viz.: State ex rel. Hall, District
Attorney, vs. Judge of Tenth Judicial District (33 La.
Ann., 1222); State ex rel. Nicholls, Governor vs.
Shakespeare, Mayor of New Orleans (41 La. Ann.,
156; 6 So., 592); and State ex rel. Banking Co., etc.
vs. Heard, Auditor (47 La. Ann., 1679; 18 So., 746; 47
L. R. A., 512). These decisions do not forbid a district
attorney to plead that a statute is unconstitutional if
he finds it in conflict with one which it is his duty to
enforce. In State ex rel. Hall, District Attorney, vs.
Judge, etc., the ruling was that the judge should
not, merely because he believed a certain statute
to be unconstitutional, forbid the district attorney to
file a bill of information charging a person with a
violation of the statute. In other words, a judge
should not judicially declare a statute
unconstitutional until the question of
constitutionality is tendered for decision, and unless
it must be decided in order to determine the right
of a party litigant. State ex rel. Nicholls, Governor,
etc., is authority for the proposition merely that an
officer on whom a statute imposes the duty of
enforcing its provisions cannot avoid the duty upon
the ground that he considers the statute
unconstitutional, and hence in enforcing the statute
he is immune from responsibility if the statute be
unconstitutional. State ex rel. Banking Co., etc., is
authority for the proposition merely that executive
officers, e. g., the state auditor and state treasurer,
should not decline to perform ministerial duties
imposed upon them by a statute, on the ground
that they believe the statute is unconstitutional.
"It is the duty of a district attorney to enforce the
criminal laws of the state, and, above all, to support
the Constitution of the state. If, in the performance
of his duty he finds two statutes in conflict with each
other, or one which repeals another, and if, in his
judgment, one of the two statutes is
unconstitutional, it is his duty to enforce the other;
and, in order to do so, he is compelled to submit to
the court, by way of a plea, that one of the statutes
is unconstitutional. If it were not so, the power of the
Legislature would be free from constitutional
limitations in the enactment of criminal laws."
The respondents do not seem to doubt seriously the
correctness of the general proposition that the state
may impugn the validity of its laws. They have not
cited any authority running clearly in the opposite
direction. In fact, they appear to have proceeded
on the assumption that the rule as stated is sound
but that it has no application in the present case,
nor may it be invoked by the City Fiscal in behalf of
the People of the Philippines, one of the petitioners
herein, the principal reasons being that the validity
of the Probation Act cannot be attacked for the
first time before this court, that the City Fiscal is
estopped from attacking the validity of the Act
and, not being authorized to enforce laws outside
of the City of Manila, cannot challenge the validity
of the Act in its application outside said city.
(Additional memorandum of respondents, October
23, 1937, pp. 8, 10, 17 and 23.)
The mere fact that the Probation Act has been
repeatedly relied upon in the past and all that time
has not been attacked as unconstitutional by the
Fiscal of Manila but, on the contrary, has been
impliedly regarded by him as constitutional, is no
reason for considering the People of the Philippines
estopped from now assailing its validity. For courts
will pass upon a constitutional question only when
presented before it in bona fide cases for
determination, and the fact that the question has
not been raised before is not a valid reason for
refusing to allow it to be raised later. The fiscal and
all others are justified in relying upon the statute and
treating it as valid until it is held void by the courts in
proper cases.
It remains to consider whether the determination of
the constitutionality of Act No. 4221 is necessary to
the resolution of the instant case. For, ". . . while the
court will meet the question with firmness, where its
decision is indispensable, it is the part of wisdom,
and a just respect for the legislature, renders it
proper, to waive it, if the case in which it arises, can
be decided on other points." (Ex parte Randolph
[1833], 20 F. Cas. No. 11,558; 2 Brock., 447. Vide,
also, Hoover vs. Wood [1857], 9 Ind., 286, 287.) It has
been held that the determination of a
constitutional question is necessary whenever it is
essential to the decision of the case (12 C. J., p.
782, citing Long Sault Dev. Co. vs. Kennedy [1913],
158 App. Div., 398; 143 N. Y. Supp., 454 [aff. 212 N.
Y., 1; 105 N. E., 849; Ann. Cas. 1915D, 56; and app
dism 242 U. S., 272]; Hesse vs. Ledesma, 7 Porto Rico
Fed., 520; Cowan vs. Doddridge, 22 Gratt [63 Va.],
14 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
458; Union Line Co .vs. Wisconsin R. Comm., 146
Wis., 523; 129 N. W., 605), as where the right of a
party is founded solely on a statute, the validity of
which is attacked. (12 C. J., p. 782, citing Central
Glass Co. vs. Niagara F. Ins. Co., 131 La., 513; 59 S.,
972; Cheney vs. Beverly, 188 Mass., 81; 74 N. E., 306).
There is no doubt that the respondent Cu Unjieng
draws his privilege to probation solely from Act No.
4221 now being assailed.
Apart from the foregoing considerations, this court
will also take cognizance of the fact that the
Probation Act is a new addition to our statute books
and its validity has never before been passed upon
by the courts; that many persons accused and
convicted of crime in the City of Manila have
applied for probation; that some of them are
already on probation; that more people will likely
take advantage of the Probation Act in the future;
and that the respondent Mariano Cu Unjieng has
been at large for a period of about four years since
his first conviction. All 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 the
constitutionality of Act No. 4221 be now resolved.
(Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385;
[1926], 271 U. S., 500; 70 Law. ed., 1059. See 6 R. C.
L., pp. 77, 78; People vs. Kennedy [1913], 207 N. Y.,
533; 101 N. E., 442, 444; Ann. Cas. 1914C, 616;
Borginis vs. Falk Co. [1911], 147 Wis., 327; 133 N. W.,
209, 211; 37 L. R. A. [N. S.], 489; Dimayuga and
Fajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu
Cong Eng vs. Trinidad, supra, an analogous
situation confronted us. We said: "Inasmuch as the
property and personal rights of nearly twelve
thousand merchants are affected by these
proceedings, and inasmuch as Act No. 2972 is a
new law not yet interpreted by the courts, in the
interest of the public welfare and for the
advancement of public policy, we have
determined to overrule the defense of want of
jurisdiction in order that we may decide the main
issue. We have here an extraordinary situation
which calls for a relaxation of the general rule." Our
ruling on this point was sustained by the Supreme
Court of the United States. A more binding authority
in support of the view we have taken can not be
found.
We have reached the conclusion that the question
of the constitutionality of Act No. 4221 has been
properly raised. Now for the main inquiry: Is the Act
unconstitutional?
Under a doctrine peculiarly American, it is the office
and duty of the judiciary to enforce the
Constitution. This court, by clear implication from
the provisions of section 2, subsection 1, and
section 10, of Article VIII of the Constitution, may
declare an act of the national legislature invalid
because in conflict with the fundamental law. It will
not shirk from its sworn duty to enforce the
Constitution. And, in clear cases, it will not hesitate
to give effect to the supreme law by setting aside a
statute in conflict therewith. This is of the essence of
judicial duty.
This court is not unmindful of the fundamental
criteria in cases of this nature that all reasonable
doubts should be resolved in favor of the
constitutionality of a statute. An act of the
legislature approved by the executive, is presumed
to be within constitutional limitations. The
responsibility of upholding the Constitution rests not
on the courts alone but on the legislature as well.
"The question of the validity of every statute is first
determined by the legislative department of the
government itself." (U. S. vs. Ten Yu [1912], 24 Phil., 1,
10; Case vs. Board of Health and Heiser [1913], 24
Phil., 250, 276; U. S. vs. Joson [1913], 26 Phil., 1.) And
a statute finally comes before the courts sustained
by the sanction of the executive. The members of
the Legislature and the Chief Executive have taken
an oath to support the Constitution and it must be
presumed that they have been true to this oath
and that in enacting and sanctioning a particular
law they did not intend to violate the Constitution.
The courts cannot but cautiously exercise its power
to overturn the solemn declarations of two of the
three grand departments of the government. (6 R.
C. L., p. 101.) Then, there is that peculiar political
philosophy which bids the judiciary to reflect the
wisdom of the people as expressed through an
elective Legislature and an elective Chief
Executive. It follows, therefore, that the courts will
not set aside a law as violative of the Constitution
except in a clear case. This is a proposition too plain
to require a citation of authorities.
One of the counsel for respondents, in the course of
his impassioned argument, called attention to the
fact that the President of the Philippines had
already expressed his opinion against the
constitutionality of the Probation Act, adverting that
as to the Executive the resolution of this question
was a foregone conclusion. Counsel, however,
reiterated his confidence in the integrity and
independence of this court. We take notice of the
fact that the President in his message dated
September 1, 1937, recommended to the National
Assembly the immediate repeal of the Probation
Act (No. 4221); that this message resulted in the
approval of Bill No. 2417 of the National Assembly
repealing the Probation Act, subject to certain
conditions therein mentioned; but that said bill was
vetoed by the President on September 13, 1937,
much against his wish, "to have stricken out from
the statute books of the Commonwealth a law . . .
unfair and very likely unconstitutional." It is sufficient
to observe in this connection that, in vetoing the bill
referred to, the President exercised his constitutional
prerogative. He may express the reasons which he
may deem proper for taking such a step, but his
reasons are not binding upon us in the
determination of actual controversies submitted for
our determination. Whether or not the Executive
should express or in any manner insinuate his
opinion on a matter encompassed within his broad
constitutional power of veto but which happens to
be at the same time pending determination in this
court is a question of propriety for him exclusively to
decide or determine. Whatever opinion is
expressed by him under these circumstances,
however, cannot sway our judgment one way or
another and prevent us from taking what in our
opinion is the proper course of action to take in a
given case. If it is ever necessary for us to make any
vehement affirmance during this formative period
of our political history, it is that we are independent
15 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
of the Executive no less than of the Legislative
department of our government independent in
the performance of our functions, undeterred by
any consideration, free from politics, indifferent to
popularity, and unafraid of criticism in the
accomplishment of our sworn duty as we see it and
as we understand it.
The constitutionality of Act No. 4221 is challenged
on three principal grounds: (1) That said Act
encroaches upon the pardoning power of the
Executive; (2) that it constitutes an undue
delegation of legislative power; and (3) that it
denies the equal protection of the laws.
1. Section 21 of the Act of Congress of August 29,
1916, commonly known as the Jones Law, in force
at the time of the approval of Act No. 4221,
otherwise known as the Probation Act, vests in the
Governor- General of the Philippines "the exclusive
power to grant pardons and reprieves and remit
fines and forfeitures". This power is now vested in the
President of the Philippines. (Art. VII, sec. 11, subsec.
6.) The provisions of the Jones Law and the
Constitution differ in some respects. The adjective
"exclusive" found in the Jones Law has been
omitted from the Constitution. Under the Jones Law,
as at common law, pardon could be granted any
time after the commission of the offense, either
before or after conviction (Vide Constitution of the
United States, Art. II, sec. 2; In re Lontok [1922], 43
Phil., 293). The Governor-General of the Philippines
was thus empowered, like the President of the
United States, to pardon a person before the facts
of the case were fully brought to light. The framers
of our Constitution thought this undesirable and,
following most of the state constitutions, provided
that the pardoning power can only be exercised
"after conviction". So, too, under the new
Constitution, the pardoning power does not extend
to "cases of impeachment". This is also the rule
generally followed in the United States (Vide
Constitution of the United States, Art. II, sec. 2). The
rule in England is different. There, a royal pardon
can not be pleaded in bar of an impeachment;
"but," says Blackstone, "after the impeachment has
been solemnly heard and determined, it is not
understood that the king's royal grace is further
restrained or abridged." (Vide, Ex parte Wells [1856],
18 How., 307; 15 Law. ed., 421; Com. vs. Lockwood
[1872], 109 Mass., 323; 12 Am. Rep., 699; Sterling vs.
Drake [1876], 29 Ohio St., 457; 23 Am. Rep., 762.) The
reason for the distinction is obvious. In England,
judgment on impeachment is not confined to mere
"removal from office and disqualification to hold
and enjoy any office of honor, trust, or profit under
the Government" (Art. IX, sec. 4, Constitution of the
Philippines) but extends to the whole punishment
attached by law to the offense committed. The
House of Lords, on a conviction may, by its
sentence, inflict capital punishment, perpetual
banishment, fine or imprisonment, depending upon
the gravity of the offense committed, together with
removal from office and incapacity to hold office.
(Com. vs. Lockwood, supra.) Our Constitution also
makes specific mention of "commutation" and of
the power of the executive to impose, in the
pardons he may grant, such conditions, restrictions
and limitations as he may deem proper. Amnesty
may be granted by the President under the
Constitution but only with the concurrence of the
National Assembly. We need not dwell at length on
the significance of these fundamental changes. It is
sufficient for our purposes to state that the
pardoning power has remained essentially the
same. The question is: Has the pardoning power of
the Chief Executive under the Jones Law been
impaired by the Probation Act?
As already stated, the Jones Law vests the
pardoning power exclusively in the Chief Executive.
The exercise of the power may not, therefore, be
vested in anyone else. ". . . The benign prerogative
of mercy reposed in the executive cannot be taken
away nor fettered by any legislative restrictions, nor
can like power be given by the legislature to any
other officer or authority. The coordinate
departments of government have nothing to do
with the pardoning power, since no person properly
belonging to one of the departments can exercise
any powers appertaining to either of the others
except in cases expressly provided for by the
constitution." (20 R. C. L., pp. 540, 541, and cases
cited.) ". . . where the pardoning power is conferred
on the executive without express or implied
limitations, the grant is exclusive, and the legislature
can neither exercise such power itself nor delegate
it elsewhere, nor interfere with or control the proper
exercise thereof, . . .." (12 C. J., pp. 838, 839, and
cases cited.) If Act No. 4221, then, confers any
pardoning power upon the courts it is for that
reason unconstitutional and void. But does it?
In the famous Killitts decision involving an
embezzlement case, the Supreme Court of the
United States ruled in 1916 that an order indefinitely
suspending sentence was void. (Ex parte United
States [1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A.
1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B,
355.) Chief Justice White, after an exhaustive review
of the authorities, expressed the opinion of the
court that under the common law the power of the
court was limited to temporary suspension and that
the right to suspend sentence absolutely and
permanently was vested in the executive branch of
the government and not in the judiciary. But, the
right of Congress to establish probation by statute
was conceded. Said the court through its Chief
Justice: ". . . and so far as the future is concerned,
that is, the causing of the imposition of penalties as
fixed to be subject, by probation legislation or such
other means as the legislative mind may devise, to
such judicial discretion as may be adequate to
enable courts to meet by the exercise of an
enlarged but wise discretion the infinite variations
which may be presented to them for judgment,
recourse must be had to Congress whose legislative
power on the subject is in the very nature of things
adequately complete." (Quoted in Riggs vs. United
States [1926], 14 F. [2d], 5, 6.) This decision led the
National Probation Association and others to
agitate for the enactment by Congress of a federal
probation law. Such action was finally taken on
March 4, 1925 (chap. 521, 43 Stat. at L. 1259, U. S. C.
title 18, sec. 724). This was followed by an
appropriation to defray the salaries and expenses
of a certain number of probation officers chosen by
civil service. (Johnson, Probation for Juveniles and
Adults, p. 14.)
16 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
In United States vs. Murray ([1925], 275 U. S., 347; 48
Sup. Ct. Rep., 146; 72 Law. ed., 309), the Supreme
Court of the United States, through Chief Justice
Taft, held that when a person sentenced to
imprisonment by a district court has begun to serve
his sentence, that court has no power under the
Probation Act of March 4, 1925 to grant him
probation even though the term at which sentence
was imposed had not yet expired. In this case of
Murray, the constitutionality of the Probation Act
was not considered but was assumed. The court
traced the history of the Act and quoted from the
report of the Committee on the Judiciary of the
United States House of Representatives (Report No.
1377, 68th Congress, 2d Session) the following
statement:
"Prior to the so-called Killitts case, rendered in
December, 1916, the district courts exercised a form
of probation either by suspending sentence or by
placing the defendants under state probation
officers or volunteers. In this case, however (Ex parte
United States, 242 U. S., 27; 61 L. ed., 129; L. R. A.,
1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B,
355), the Supreme Court denied the right of the
district courts to suspend sentence. In the same
opinion the court pointed out the necessity for
action by Congress if the courts were to exercise
probation powers in the future. . . .
"Since this decision was rendered, two attempts
have been made to enact probation legislation. In
1917, a bill was favorably reported by the Judiciary
Committee and passed the House. In 1920, the
Judiciary Committee again favorably reported a
probation bill to the House, but it was never
reached for definite action.
"If this bill is enacted into law, it will bring the policy
of the Federal government with reference to its
treatment of those convicted of violations of its
criminal laws in harmony with that of the states of
the Union. At the present time every state has a
probation law, and in all but twelve states the law
applies both to adult and juvenile offenders." (See,
also, Johnson, Probation for Juveniles and Adults
[1928], Chap. I.)
The constitutionality of the federal probation law
has been sustained by inferior federal courts. In
Riggs vs. United States supra, the Circuit Court of
Appeals of the Fourth Circuit said:
"Since the passage of the Probation Act of March 4,
1925, the questions under consideration have been
reviewed by the Circuit Court of Appeals of the
Ninth Circuit (7 F. [2d], 590), and the constitutionality
of the act fully sustained, and the same held in no
manner to encroach upon the pardoning power of
the President. This case will be found to contain an
able and comprehensive review of the law
applicable here. It arose under the act we have to
consider, and to it and the authorities cited therein
special reference is made (Nix vs. James, 7 F. [2d],
590, 594), as is also to a decision of the Circuit Court
of Appeals of the Seventh Circuit (Kriebel vs. U. S.,
10 F. [2d], 762), likewise construing the Probation
Act."
We have seen that in 1916 the Supreme Court of
the United States; in plain and unequivocal
language, pointed to Congress as possessing the
requisite power to enact probation laws, that a
federal probation law was actually enacted in
1925, and that the constitutionality of the Act has
been assumed by the Supreme Court of the United
States in 1928 and consistently sustained by the
inferior federal courts in a number of earlier cases.
We are fully convinced that the Philippine
Legislature, like the Congress of the United States,
may legally enact a probation law under its broad
power to fix the punishment of any and all penal
offenses. This conclusion is supported by other
authorities. In Ex parte Bates ([1915], 20 N. M., 542; L.
R. A. 1916A, 1285; 151 Pac., 698, the court said: "It is
clearly within the province of the Legislature to
denominate and define all classes of crime, and to
prescribe for each a minimum and maximum
punishment." And in State vs. Abbott ([1910], 87 S.
C., 466; 33 L. R. A. [N. S.], 112; 70 S. E., 6; Ann. Cas.
1912B, 1189), the court said: "The legislative power
to set punishment for crime is very broad, and in the
exercise of this power the general assembly may
confer on trial judges, if it sees fit, the largest
discretion as to the sentence to be imposed, as to
the beginning and end of the punishment and
whether it should be certain or indeterminate or
conditional." (Quoted in State vs. Teal [1918], 108 S.
C., 455; 95 S. E., 69.) Indeed, the Philippine
Legislature has defined all crimes and fixed the
penalties for their violation. Invariably, the
legislature has demonstrated the desire to vest in
the courts particularly the trial courts large
discretion in imposing the penalties which the law
prescribes in particular cases. It is believed that
justice can best be served by vesting this power in
the courts, they being in a position to best
determine the penalties which an individual
convict, peculiarly circumstanced, should suffer.
Thus, while courts are not allowed to refrain from
imposing a sentence merely because, taking into
consideration the degree of malice and the injury
caused by the offense, the penalty provided by law
is clearly excessive, the courts being allowed in
such cases to submit to the Chief Executive,
through the Department of Justice, such statement
as it may deem proper (see art. 5, Revised Penal
Code), in cases where both mitigating and
aggravating circumstances are attendant in the
commission of a crime and the law provides for a
penalty composed of two indivisible penalties, the
courts may allow such circumstances to offset one
another in consideration of their number and
importance, and to apply the penalty according to
the result of such compensation. (Art. 63, rule 4,
Revised Penal Code; U. S. vs. Reguera and
Asuategui [1921], 41 Phil., 506.) Again, Article 64,
paragraph 7, of the Revised Penal Code empowers
the courts to determine, within the limits of each
period, in case the penalty prescribed by law
contains three periods, the extent of the penalty
according to the number and nature of the
aggravating and mitigating circumstances and the
extent of the evil produced by the crime. In the
imposition of fines, the courts are allowed to fix any
amount within the limits established by law,
considering not only the mitigating and
aggravating circumstances, but more particularly
the wealth or means of the culprit. (Art. 66, Revised
Penal Code.) Article 68, paragraph 1, of the same
Code provides that "a discretionary penalty shall be
imposed" upon a person under fifteen but over nine
17 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
years of age, who has not acted without
discernment, but always lower by two degrees at
least than that prescribed by law for the crime
which he has committed. Article 69 of the same
Code provides that in case of "incomplete self-
defense", i. e., when the crime committed is not
wholly excusable by reason of the lack of some of
the conditions required to justify the same or to
exempt from criminal liability in the several cases
mentioned in articles 11 and 12 of the Code, "the
courts shall impose the penalty in the period which
may be deemed proper, in view of the number and
nature of the conditions of exemption present or
lacking." And, in case the commission of what are
known as "impossible" crimes, "the court, having in
mind the social danger and the degree of
criminality shown by the offender," shall impose
upon him either arresto mayor or a fine ranging
from 200 to 500 pesos. (Art. 59, Revised Penal
Code.)
Under our Revised Penal Code, also, one-half of the
period of preventive imprisonment is deducted
from the entire term of imprisonment, except in
certain cases expressly mentioned (art. 29); the
death penalty is not imposed when the guilty
person is more than seventy years of age, or where
upon appeal or revision of the case by the
Supreme Court, all the members thereof are not
unanimous in their voting as to the propriety of the
imposition of the death penalty (art. 47, see also,
sec. 133, Revised Administrative Code, as amended
by Commonwealth Act No. 3); the death sentence
is not to be inflicted upon a woman within the three
years next following the date of the sentence or
while she is pregnant, or upon any person over
seventy years of age (art. 83); and when a convict
shall become insane or an imbecile after final
sentence has been pronounced, or while he is
serving his sentence, the execution of said
sentence shall be suspended with regard to the
personal penalty during the period of such insanity
or imbecility (art. 79).
But the desire of the legislature to relax what might
result in the undue harshness of the penal laws is
more clearly demonstrated in various other
enactments, including the probation Act. There is
the Indeterminate Sentence Law enacted in 1933
as Act No. 4103 and subsequently amended by Act
No. 4225, establishing a system of parole (secs. 5 to
10) and granting the courts large discretion in
imposing the penalties of the law. Section 1 of the
law as amended provides: "Hereafter, in imposing a
prison sentence for an offense punished by the
Revised Penal Code, or its amendments, the court
shall sentence the accused to an indeterminate
sentence the maximum term of which shall be that
which, in view of the attending circumstances,
could be properly imposed under the rules of the
said Code, and to a minimum which shall be within
the range of the penalty next lower to that
prescribed by the Code for the offense; and if the
offense is punished by any other law, the court shall
sentence the accused to an indeterminate
sentence, the maximum term of which shall not
exceed the maximum fixed by said law and the
minimum shall not be less than the minimum term
prescribed by the same." Certain classes of convicts
are, by section 2 of the law, excluded from the
operation thereof. The Legislature has also enacted
the Juvenile Delinquency Law (Act No. 3203) which
was subsequently amended by Act No. 3559.
Section 7 of the original Act and section 1 of the
amendatory Act have become article 80 of the
Revised Penal Code, amended by Act No. 4117 of
the Philippine Legislature and recently reamended
by Commonwealth Act No. 99 of the National
Assembly. Finally came the (Adult) Probation Act
now in question. In this Act is again manifested the
intention of the legislature to "humanize" the penal
laws. It allows, in effect, the modification in
particular cases of the penalties prescribed by law
by permitting the suspension of the execution of the
judgment in the discretion of the trial court, after
due hearing and after Investigation of the
particular circumstances of the offense, the criminal
record, if any, of the convict, and his social history.
The Legislature has in reality decreed that in certain
cases no punishment at all shall be suffered by the
convict as long as the conditions of probation are
faithfully observed. If this be so, then, it cannot be
said that the Probation Act comes in conflict with
the power of the Chief Executive to grant pardons
and reprieves, because, to use the language of the
Supreme Court of New Mexico, "the element of
punishment or the penalty for the commission of a
wrong, while to be declared by the courts as a
judicial function under and within the limits of law as
announced by legislative acts, concerns solely the
procedure and conduct of criminal causes, with
which the executive can have nothing to do." (Ex
parte Bates, supra.) In Williams vs. State ([1926], 162
Ga., 327; 133 S. E., 843), the court upheld the
constitutionality of the Georgia probation statute
against the contention that it attempted to
delegate to the courts the pardoning power
lodged by the constitution in the governor of the
state and observed that "while the governor alone
is vested with the power to pardon after final
sentence has been imposed by the courts, the
power of the courts to impose any penalty which
may be from time to time prescribed by law and in
such manner as may be defined cannot be
questioned."
We realize, of course, the conflict which the
American cases disclose. Some cases hold it
unlawful for the legislature to vest in the courts the
power to suspend the operation of a sentence, by
probation or otherwise, as to do so would encroach
upon the pardoning power of the executive. (In re
Webb [1895], 89 Wis., 354; 27 L. R. A., 356; 46 Am. St.
Rep., 846; 62 N. W., 177; 9 Am. Crim. Rep., 702; State
ex rel. Summer field vs. Moran [1919], 43 Nev., 150;
182 Pac., 927; Ex parte Clendenning [1908], 22
Okla., 108; 1 Okla. Crim. Rep., 227; 19 L. R. A. [N. S.],
1041; 132 Am. St. Rep., 628; 97 Pac., 650; People vs.
Barrett [1903], 202 Ill., 287; 67 N. E., 23; 63 L. R. A., 82;
95 Am. St. Rep., 230; Snodgrass vs. State [1912], 67
Tex. Crim. Rep., 615; 41 L. R. A. [N. S.], 1144; 150 S.
W., 162; Ex parte Shelor [1910], 33 Nev., 361; 111
Pac., 291; Neal vs. State [1898], 104 Ga., 509; 42 L. R.
A., 190; 69 Am. St. Rep., 175; 30 S. E., 858; State ex
rel. Payne vs. Anderson [1921], 43 S. D., 630; 181 N.
W., 839; People vs. Brown, 54 Mich., 15; 19 N. W.,
571; State vs. Dalton [1903], 109 Tenn., 544; 72 S. W.,
456.)
18 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
Other cases, however, hold contra. (Nix vs. James
1925; C. C. A., 9th], 7 F. [2d], 590; Archer vs. Snook
[1926; D. C.], 10 F. [2d], 567; Riggs. vs. United States
[1926; C. C. A. 4th], 14]) [2d], 5; Murphy vs. State
[1926], 171 Ark., 620; 286 S. W., 871; 48 A. L. R., 1189;
Re Giannini [1912], 18 Cal. App., 166; 122 Pac., 831;
Re Nachnaber [1928], 89 Cal. App., 530; 265 Pac.,
392; Ex parte De Voe [1931], 114 Cal. App., 730; 300
Pac., 874; People vs. Patrick [1897], 118 Cal., 332; 50
Pac., 425; Martin vs. People [1917], 69 Colo., 60; 168
Pac., 1171; Belden vs. Hugo [1914], 88 Conn., 50; 91
A., 369, 370, 371; Williams vs. State [1926], 162 Ga.,
327; 133 S. E., 843; People vs. Heise [1913], 257 Ill.,
443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind.,
534; 35 N. E., 179; 23 L. R. A., 859; St. Hilarie,
Petitioner [1906], 101 Me., 522; 64 Atl., 882; People
vs. Stickle [1909], 156 Mich., 557; 121 N. W., 497;
State vs. Fjolander [1914], 125 Minn., 529; State ex
rel. Bottomnly vs. District Court [1925], 73 Mont., 541;
237 Pac., 525; State vs. Everitt [1913], 164 N. C., 399;
79 S. E., 274; 47 L. R. A. [N. S.], 848; State ex rel.
Buckley vs. Drew [1909], 75 N. H., 402; 74 Atl., 875;
State vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl.
424; Ex parte Bates [1915], 20 N. M., 542; L. R. A.,
1916 A, 1285; 151 Pac., 698; People ex rel. Forsyth vs.
Court of Sessions [1894], 141 N. Y., 288; 23 L. R. A.,
856; 36 N. E., 386; 15 Am. Crim. Rep., 675; People ex
rel. Sullivan vs. Flynn [1907], 55 Misc., 639; 106 N. Y.
Supp., 928; People vs. Goodrich [1914], 149 N. Y.
Supp., 406; Moore vs. Thorn [1935], 245 App. Div.,
180; 281 N. Y. Supp., 49; Re Hart [1914], 29 N. D., 38;
L. R. A., 1915C, 1169; 149 N. W., 568; Ex parte Eaton
[1925], 29 Okla., Crim. Rep., 275; 233 P., 781; State
vs. Teal [1918], 108 S. C., 455; 95 S. E., 69; State vs.
Abbot [1910], 87 S. C., 466; 33 L. R. A. [N. S.], 112; 70
S. E., 6; Ann. Cas., 1912B, 1189; Fults vs. State [1854],
34 Tenn., 232; Woods vs. State [1814], 130 Tenn., 100;
169 S. W., 558; Baker vs. State [1913], 70 Tex., Crim.
Rep., 618; 158 S. W., 998; Cook vs. State [1914], 73
Tex. Crim. Rep., 548; 165 S. W., 573; King vs. State
[1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890; Clare
vs. State [1932], 122 Tex. Crim. Rep., 211; 54 S. W.
[2d], 127; Re Hall [1927], 100 Vt., 197; 136 A., 24;
Richardson vs. Com. [1921], 131 Va., 802; 109 S. E.,
460; State vs. Mallahan [1911], 65 Wash., 287; 118
Pac., 42; State ex rel. Tingstad vs. Starwich [1922],
119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393; 396.)
We elect to follow this long catena of authorities
holding that the courts may be legally authorized
by the legislature to suspend sentence by the
establishment of a system of probation however
characterized. State ex rel. Tingstad vs. Starwich
([1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R.,
393), deserved particular mention. In that case, a
statute enacted in 1921 which provided for the
suspension of the execution of a sentence until
otherwise ordered by the court, and required that
the convicted person be placed under the charge
of a parole or peace officer during the term of such
suspension, on such terms as the court may
determine, was held constitutional and as not
giving the court a power in violation of the
constitutional provision vesting the pardoning
power in the chief executive of the state. (Vide,
also, Re Giannini [1912], 18 Cal. App., 166; 122 Pac.,
831.)
Probation and pardon are not coterminous; nor are
they the same. They are actually distinct and
different from each other, both in origin and in
nature. In People ex rel. Forsyth vs. Court of Sessions
([1894], 141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L. R.
A., 856; 15 Am. Crim. Rep., 675), the Court of
Appeals of New York said:
". . . The power to suspend sentence and the power
to grant reprieves and pardons, as understood
when the constitution was adopted, are totally
distinct and different in their origin and nature. The
former was always a part of the judicial power; the
latter was always a part of the executive power.
The suspension of the sentence simply postpones
the judgment of the court temporarily or
indefinitely, but the conviction and liability following
it, and all civil disabilities, remain and become
operative when judgment is rendered. A pardon
reaches both the punishment prescribed for the
offense and the guilt of the offender. It releases the
punishment, and blots out of existence the guilt, so
that in the eye of the law, the offender is as
innocent as if he had never committed the offense.
It removes the penalties and disabilities, and
restores him to all his civil rights. It makes him, as it
were, a new man, and gives him a new credit and
capacity. (Ex parte Garland, 71 U. S., 4 Wall., 333; 18
Law. ed., 366; U. S. vs. Klein, 80 U. S., 13 Wall., 128; 20
Law. ed., 519; Knote vs. U. S. 95 U. S., 149; 24 Law.
ed., 442.)
"The framers of the federal and state constitutions
were perfectly familiar with the principles governing
the power to grant pardons, and it was conferred
by these instruments upon the executive with full
knowledge of the law upon the subject, and the
words of the constitution were used to express the
authority formerly exercised by the English crown, or
by its representatives in the colonies. (Ex parte Wells,
59 U. S., 18 How., 307; 15 Law. ed., 421.) As this
power was understood, it did not comprehend any
part of the judicial functions to suspend sentence,
and it was never intended that the authority to
grant reprieves and pardons should abrogate, or in
any degree restrict, the exercise of that power in
regard to its own judgments, that criminal courts
had so long maintained. The two powers, so distinct
and different in their nature and character, were
still left separate and distinct, the one to be
exercised by the executive, and the other by the
judicial department. We therefore conclude that a
statute which, in terms, authorizes courts of criminal
jurisdiction to suspend sentence in certain cases
after conviction, a power inherent in such courts
at common law, which was understood when the
constitution was adopted to be an ordinary judicial
function, and which, ever since its adoption, has
been exercised by the courts, is a valid exercise of
legislative power under the constitution. It does not
encroach, in any just sense, upon the powers of the
executive, as they have been understood and
practiced from the earliest times." (Quoted with
approval in Director of Prisons vs. Judge of First
Instance of Cavite [1915], 29 Phil., 265, Carson, J.,
concurring, at pp. 294, 295.)
In probation, the probationer is in no true sense, as
in pardon, a free man. He is not finally and
completely exonerated. He is not exempt from the
entire punishment which the law inflicts. Under the
Probation Act, the probationer's case is not
19 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
terminated by the mere fact that he is placed on
probation. Section 4 of the Act provides that the
probation may be definitely terminated and the
probationer finally discharged from supervision only
after the period of probation shall have been
terminated and the probation officer shall have
submitted a report, and the court shall have found
that the probationer has complied with the
conditions of probation. The probationer, then,
during the period of probation, remains in legal
custody subject to the control of the probation
officer and of the court; and, he may be rearrested
upon the non-fulfillment of the conditions of
probation and, when rearrested, may be
committed to prison to serve the sentence originally
imposed upon him. (Secs. 2, 3, 5 and 6, Act No.
4221.)
"The probation described in the act is not pardon. It
is not complete liberty, and may be far from it. It is
really a new mode of punishment, to be applied by
the judge in a proper case, in substitution of the
imprisonment and fine prescribed by the criminal
laws. For this reason its application is as purely a
judicial act as any other sentence carrying out the
law deemed applicable to the offense. The
executive act of pardon, on the contrary, is against
the criminal law, which binds and directs the
judges, or rather is outside of and above it. There is
thus no conflict with the pardoning power, and no
possible unconstitutionality of the Probation Act for
this cause." (Archer vs. Snook [1926], 10 F. [2d], 567,
569.)
Probation should also be distinguished from
reprieve and from commutation of the sentence.
Snodgrass vs. State ([1912], 67 Tex. Crim. Rep., 615;
41 L. R. A. [N. S.], 1144; 150 S. W., 162), is relied upon
most strongly by the petitioners as authority in
support of their contention that the power to grant
pardons and reprieves, having been vested
exclusively upon the Chief Executive by the Jones
Law, may not be conferred by the legislature upon
the courts by means of a probation law authorizing
the indefinite judicial suspension of sentence. We
have examined that case and found that although
the Court of Criminal Appeals of Texas held that the
probation statute of the state in terms conferred on
the district courts the power to grant pardons to
persons convicted of crime, it also distinguished
between suspension of sentence on the one hand,
and reprieve and commutation of sentence on the
other. Said the court, through Harper, J.:
"That the power to suspend the sentence does not
conflict with the power of the Governor to grant
reprieves is settled by the decisions of the various
courts; it being held that the distinction between a
'reprieve' and a suspension of sentence is that a
reprieve postpones the execution of the sentence
to a day certain, whereas a suspension is for an
indefinite time. (Carnal vs. People, 1 Parker, Cr. R.,
262; In re Buchanan, 146 N. Y., 264; 40 N. E., 883),
and cases cited in 7 Words & Phrases, pp. 6115,
6116. This law cannot be held in conflict with the
power confiding in the Governor to grant
commutations of punishment, for commutation is
but to change the punishment assessed to a less
punishment."
In State ex rel. Bottomly vs. District Court ([1925], 73
Mont., 541; 237 Pac., 525), the Supreme Court of
Montana had under consideration the validity of
the adult probation law of the state enacted in
1913, now found in sections 1207812086, Revised
Codes of 1921. The court held the law valid as not
impinging upon the pardoning power of the
executive. In a unanimous decision penned by
justice Holloway, the court said:
". . . the terms 'pardon,' 'commutation,' and 'respite'
each had a well understood meaning at the time
our Constitution was adopted, and no one of them
was intended to comprehend the suspension of the
execution of a judgment as that phrase is
employed in sections 12078- 12086. A 'pardon' is an
act of grace, proceeding from the power intrusted
with the execution of the laws which exempts the
individual on whom it is bestowed from the
punishment the law inflicts for a crime he has
committed (United States vs. Wilson, 7 Pet., 150; 8
Law. ed., 640); It is a remission of guilt (State vs.
Lewis, 111 La., 693; 35 So., 816), a forgiveness of the
offense (Cook vs. Middlesex County, 26 N. J. Law,
326; Ex parte Powell, 73 Ala., 517; 49 Am. Rep., 71).
'Commutation' is a remission of a part of the
punishment; a substitution of a less penalty for the
one originally imposed (Lee vs. Murphy, 22 Grat.
[Va.], 789; 12 Am. Rep., 563; Rich vs. Chamberlain,
107 Mich., 381; 65 N. W., 235). A 'reprieve' or 'respite'
is the withholding of a sentence for an interval of
time (4 Blackstone's Commentaries, 394), a
postponement of execution (Carnal vs. People, 1
Parker, Cr. R. [N. Y.], 272), a temporary suspension of
execution (Butler vs. State, 97 Ind., 373).
"Few adjudicated cases are to be found in which
the validity of a statute similar to our section 12078
has been determined; but the same objections
have been urged against parole statutes which
vest the power to parole in persons other than
those to whom the power of pardon is granted,
and these statutes have been upheld quite
uniformly, as a reference to the numerous cases
cited in the notes to Woods vs. State (130 Tenn.,
100; 169 S. W., 558, reported in L. R. A., 1915F, 531),
will disclose. (See, also, 20 R. C. L., 524.)"
We conclude that the Probation Act does not
conflict with the pardoning power of the Executive.
The pardoning power, in respect to those serving
their probationary sentences, remains as full and
complete as if the Probation Law had never been
enacted. The President may yet pardon the
probationer and thus place it beyond the power of
the court to order his rearrest and imprisonment.
(Riggs vs. United States [1926], 14 F. [2d], 5, 7.)
2. But while the Probation Law does not encroach
upon the pardoning power of the executive and is
not for that reason void, does section 11 thereof
constitute, as contended, an undue delegation of
legislature power?
Under our constitutional system, the powers of
government are distributed among three
coordinate and substantially independent organs:
the legislative, the executive and the judicial. Each
of these departments of the government derives its
authority from the Constitution which, in turn, is the
highest expression of popular will. Each has
exclusive cognizance of the matters within its
jurisdiction, and is supreme within its own sphere.
The power to make laws the legislative power
is vested in a bicameral Legislature by the Jones
20 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
Law (sec. 12) and in a unicameral National
Assembly by the Constitution (Art. VI, sec. 1,
Constitution of the Philippines). The Philippine
Legislature or the National Assembly may not
escape its duties and responsibilities by delegating
that power to any other body or authority. Any
attempt to abdicate the power is unconstitutional
and void, on the principle that potestas delegata
non delegare potest. This principle is said to have
originated with the glossators, was introduced into
English law through a misreading of Bracton, there
developed as a principle of agency, was
established by Lord Coke in the English public law in
decisions forbidding the delegation of judicial
power, and found its way into America as an
enlightened principle of free government. It has
since become an accepted corollary of the
principle of separation of powers. (5 Encyc. of the
Social Sciences, p. 66.) The classic statement of the
rule is that of Locke, namely: "The legislative neither
must nor can transfer the power of making laws to
anybody else, or place it anywhere but where the
people have." (Locke on Civil Government, sec
142.) Judge Cooley enunciates the doctrine in the
following oft-quoted language: "One of the settled
maxims in constitutional law is, that the power
conferred upon the legislature to make laws
cannot be delegated by that department to any
other body or authority. Where the sovereign power
of the state has located the authority, there it must
remain; and by the constitutional agency alone the
laws must be made until the Constitution itself is
changed. The power to whose judgment, wisdom,
and patriotism this high prerogative has been
intrusted cannot relieve itself of the responsibility by
choosing other agencies upon which the power
shall be devolved, nor can it substitute the
judgment, wisdom, and patriotism of any other
body for those to which alone the people have
seen fit to confide this sovereign trust." (Cooley on
Constitutional Limitations, 8th ed., Vol. I, p. 224.
Quoted with approval in U. S. vs. Barrias [1908], 11
Phil., 327.) This court posits the doctrine "on the
ethical principle that such a delegated power
constitutes not only a right but a duty to be
performed by the delegate by the instrumentality of
his own judgment acting immediately upon the
matter of legislation and not through the
intervening mind of another. (U. S. vs. Barrias, supra,
at p. 330.)
The rule, however, which forbids the delegation of
legislative power is not absolute and inflexible. It
admits of exceptions. An exception sanctioned by
immemorial practice permits the central legislative
body to delegate legislative powers to local
authorities. (Rubi vs. Provincial Board of Mindoro
[1919], 39 Phil., 660; U. S. vs.Salaveria [1918], 39 Phil.,
102; Stoutenburgh vs. Hennick [1889], 129 U. S., 141;
32 Law. ed., 637; 9 Sup. Ct. Rep., 256; State vs.
Noyes [1855], 30 N. H., 279.) "It is a cardinal principle
of our system of government, that local affairs shall
be managed by local authorities, and general
affairs by the central authority; and hence while the
rule is also fundamental that the power to make
laws cannot be delegated, the creation of
municipalities exercising local self government has
never been held to trench upon that rule. Such
legislation is not regarded as a transfer of general
legislative power, but rather as the grant of the
authority to prescribe local regulations, according
to immemorial practice, subject of course to the
interposition of the superior in cases of necessity."
(Stoutenburgh vs. Hennick, supra.) On quite the
same principle, Congress is empowered to
delegate legislative power to such agencies in the
territories of the United States as it may select. A
territory stands in the same relation to Congress as a
municipality or city to the state government.
(United States vs. Heinszen [1907], 206 U. S., 370; 27
Sup. Ct. Rep., 742.; 51 L. ed., 1098; 11 Ann. Cas., 688;
Dorr vs. United States [1904], 195 U. S., 138; 24 Sup.
Ct. Rep., 808; 49 Law. ed., 128; 1 Ann. Cas., 697.)
Courts have also sustained the delegation of
legislative power to the people at large. Some
authorities maintain that this may not be done (12
C. J., pp. 841, 842; 6 R. C. L., p. 164, citing People vs.
Kennedy [1913], 207 N. Y., 533; 101 N. E., 442; Ann.
Cas., 1914C, 616). However, the question of
whether or not a state has ceased to be republican
in form because of its adoption of the initiative and
referendum has been held not to be a judicial but
a political question (Pacific States Tel. & Tel. Co. vs.
Oregon [1912], 223 U. S., 118; 56 Law. ed., 377; 32
Sup. Ct. Rep., 224), and as the constitutionality of
such laws has been looked upon with favor by
certain progressive courts, the sting of the decisions
of the more conservative courts has been pretty
well drawn. (Opinions of the Justices [1894], 160
Mass., 586; 36 N. E., 488; 23 L. R. A., 113; Kiernan vs.
Portland [1910], 57 Ore., 454; 111 Pac., 379; 112
Pac., 602; 37 L. R. A. [N. S.], 332; Pacific States Tel. &
Tel. Co. vs. Oregon, supra.) Doubtless, also,
legislative power may be delegated by the
Constitution itself. Section 14, paragraph 2, of article
VI of the Constitution of the Philippines provides that
"The National Assembly may by law authorize the
President, subject to such limitations and restrictions
as it may impose, to fix within specified limits, tariff
rates, import or export quotas, and tonnage and
wharfage dues." And section 16 of the same article
of the Constitution provides that "In times of war or
other national emergency, the National Assembly
may by law authorize the President, for a limited
period and subject to such restrictions as it may
prescribe, to promulgate rules and regulations to
carry out a declared national policy." It is beyond
the scope of this decision to determine whether or
not, in the absence of the foregoing constitutional
provisions, the President could be authorized to
exercise the powers thereby vested in him. Upon
the other hand, whatever doubt may have existed
has been removed by the Constitution itself.
The case before us does not fall under any of the
exceptions hereinabove mentioned.
The challenged section of Act No. 4221 is section 11
which reads as follows:
"This Act shall apply only in those provinces in which
the respective provincial boards have provided for
the sale of a probation officer at rates not lower
than those now provided for provincial fiscals. Said
probation officers shall be appointed by the
Secretary of Justice and shall be subject to the
direction of the Probation Office." (Italics ours.)
In testing whether a statute constitutes an undue
delegation of legislative power or not, it is usual to
21 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
inquire whether the statute was complete in all its
terms and provisions when it left the hands of the
legislature so that nothing was left to the judgment
of any other appointee or delegate of the
legislature. (6 R. C. L., p. 165.) In United States vs.
Ang Tang Ho ([1922], 43 Phil., 1), this court adhered
to the foregoing rule when it held an act of the
legislature void in so far as it undertook to authorize
the Governor-General, in his discretion, to issue a
proclamation fixing the price of rice and to make
the sale of it in violation of the proclamation a
crime. (See and cf. Compaia General de Tabacos
vs. Board of Public Utility Commissioners [1916], 34
Phil., 136.) The general rule, however, is limited by
another rule that to a certain extent matters of
detail may be left to be filled in by rules and
regulations to be adopted or promulgated by
executive officers and administrative boards. (6 R.
C. L., pp. 177-179.)
For the purposes of the Probation Act, the
provincial boards may be regarded as
administrative bodies endowed with power to
determine when the Act should take effect in their
respective provinces. They are the agents or
delegates of the legislature in this respect. The rules
governing delegation of legislative power to
administrative and executive officers are
applicable or are at least indicative of the rule
which should be here adopted. An examination of
a variety of cases on delegation of power to
administrative bodies will show that the ratio
decidendi is at variance but, it can be broadly
asserted that the rationale revolves around the
presence or absence of a standard or rule of action
or the sufficiency thereof in the statute, to aid
the delegate in exercising the granted discretion. In
some cases, it is held that the standard is sufficient;
in others that it is insufficient; and in still others that it
is entirely lacking. As a rule, an act of the legislature
is incomplete and hence invalid if it does not lay
down any rule or definite standard by which the
administrative officer or board may be guided in
the exercise of the discretionary powers delegated
to it. (See Schecter vs. United States [1925], 295 U. S.,
495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837; 97 A. L. R.,
947; People ex rel. Rice vs. Wilson Oil Co. [1936], 364
Ill., 406; 4 N. E. [2d], 847; 107 A. L. R., 1500 and cases
cited. See also R. C. L., title "Constitutional Law",
sec. 174.) In the case at bar, what rules are to guide
the provincial boards in the exercise of their
discretionary power to determine whether or not
the Probation Act shall apply in their respective
provinces? What standards are fixed by the Act?
We do not find any and none has been pointed to
us by the respondents. The probation Act does not,
by the force of any of its provisions, fix and impose
upon the provincial boards any standard or guide
in the exercise of their discretionary power. What is
granted, if we may use the language of Justice
Cardozo in the recent case of Schecter, supra, is a
"roving commission" which enables the provincial
boards to exercise arbitrary discretion. By section 11
of the Act, the legislature does seemingly on its own
authority extend the benefits of the Probation Act
to the provinces but in reality leaves the entire
matter for the various provincial boards to
determine. In other words, the provincial boards of
the various provinces are to determine for
themselves, whether the Probation Law shall apply
to their provinces or not at all. The applicability and
application of the Probation Act are entirely placed
in the hands of the provincial boards. If a provincial
board does not wish to have the Act applied in its
province, all that it has to do is to decline to
appropriate the needed amount for the salary of a
probation officer. The plain language of the Act is
not susceptible of any other interpretation. This, to
our minds, is a virtual surrender of legislative power
to the provincial boards.
"The true distinction", says Judge Ranney, "is
between the delegation of power to make the law,
which necessarily involves a discretion as to what it
shall be, and conferring an authority or discretion as
to its execution, to be exercised under and in
pursuance of the law. The first cannot be done; to
the latter no valid objection can be made."
(Cincinnati, W. & Z. R. Co. vs. Clinton County Comrs.
[1852]; 1 Ohio St., 77, 88. See also, Sutherland on
Statutory Construction, sec. 68.) To the same effect
are decisions of this court in Municipality of
Cardona vs. Municipality of Binangonan ([1917], 36
Phil., 547); Rubi vs. Provincial Board of Mindoro
([1919], 39 Phil., 660), and Cruz vs. Youngberg
([1931], 56 Phil., 234). In the first of these cases, this
court sustained the validity of a law conferring upon
the Governor-General authority to adjust provincial
and municipal boundaries. In the second case, this
court held it lawful for the legislature to direct non-
Christian inhabitants to take up their habitation on
unoccupied lands to be selected by the provincial
governor and approved by the provincial board. In
the third case, it was held proper for the legislature
to vest in the Governor-General authority to
suspend or not, at his discretion, the prohibition of
the importation of foreign cattle, such prohibition to
be raised "if the conditions of the country make this
advisable or if disease among foreign cattle has
ceased to be a menace to the agriculture and
livestock of the lands."
It should be observed that in the case at bar we
are not concerned with the simple transference of
details of execution or the promulgation by
executive or administrative officials of rules and
regulations to carry into effect the provisions of a
law. If we were, recurrence to our own decisions
would be sufficient. (U. S. vs. Barrias [1908], 11 Phil.,
327; U. S. vs. Molina [1914], 29 Phil., 119; Alegre vs.
Collector of Customs [1929], 53 Phil., 394; Cebu
Autobus Co. vs. De Jesus [1931], 56 Phil., 446; U. S.
vs. Gomez [1915], 31 Phil., 218; Rubi vs. Provincial
Board of Mindoro [1919], 39 Phil., 660.)
It is contended, however, that a legislative act may
be made to the effect as law after it leaves the
hands of the legislature. It is true that laws may be
made effective on certain contingencies, as by
proclamation of the executive or the adoption by
the people of a particular community (6 R. C. L.,
116. 170-172; Cooley, Constitutional Limitations, 8th
ed., Vol. I, p. 227). In Wayman vs. Southard ([1825],
10 Wheat. 1; 6 Law. ed., 253), the Supreme Court of
the United States ruled that the legislature may
delegate a power not legislative which it may itself
rightfully exercise. (Vide, also, Dowling vs.
Lancashire Ins. Co. [1896], 92 Wis., 63; 65 N. W., 738;
31 L. R. A., 112.) The power to ascertain facts is such
22 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
a power which may be delegated. There is nothing
essentially legislative in ascertaining the existence
of facts or conditions as the basis of the taking into
effect of a law. That is a mental process common
to all branches of the government. (Dowling vs.
Lancashire Ins. Co., supra; In re Village of North
Milwaukee [1896], 93 Wis., 616; 97 N. W., 1033; 33 L.
R. A., 938; Nash vs. Fries [1906], 129 Wis., 120; 108 N.
W., 210; Field vs. Clark [1892], 143 U. S., 649; 12 Sup.
Ct., 495; 36 Law. ed., 294.) Notwithstanding the
apparent tendency, however, to relax the rule
prohibiting delegation of legislative authority on
account of the complexity arising from social and
economic forces at work in this modern industrial
age (Pfiffner, Public Administration [1936] ch. XX;
Laski, "The Mother of Parliaments", Foreign Affairs,
July, 1931, Vol. IX, No. 4, pp. 569-579; Beard, "Squirt-
Gun Politics", in Harper's Monthly Magazine, July,
1930, Vol. CLXI, pp. 147, 152), the orthodox
pronouncement of Judge Cooley in his work on
Constitutional Limitations finds restatement in Prof.
Willoughby's treatise on the Constitution of the
United States in the following language speaking
of declaration of legislative power to administrative
agencies: "The principle which permits the
legislature to provide that the administrative agent
may determine when the circumstances are such
as require the application of a law is defended
upon the ground that at the time this authority is
granted, the rule of public policy, which is the
essence of the legislative act, is determined by the
legislature. In other words, the legislature, as it is its
duty to do, determines that, under given
circumstances, certain executive or administrative
action is to be taken, and that, under other
circumstances, different or no action at all is to be
taken. What is thus left to the administrative official
is not the legislative determination of what public
policy demands, but simply the ascertainment of
what the facts of the case require to be done
according to the terms of the law by which he is
governed." (Willoughby on the Constitution of the
United States, 2nd ed., Vol. III, p. 1637.) In Miller vs.
Mayer, etc., of New York ([1883], 109 U. S., 385; 3
Sup. Ct. Rep., 228; 27 Law. ed., 971, 974), it was said:
"The efficiency of an Act as a declaration of
legislative will must, of course, come from Congress,
but the ascertainment of the contingency upon
which the Act shall take effect may be left to such
agencies as it may designate." (See, also, 12 C. J.,
p. 864; State vs. Parker [1854], 26 Vt., 357; Blanding
vs. Burr [1859], 13 Cal., 343, 358.) The legislature,
then, may provide that a law shall take effect upon
the happening of future specified contingencies
leaving to some other person or body the power to
determine when the specified contingency has
arisen. But, in the case at bar, the legislature has not
made the operation of the Probation Act
contingent upon specified facts or conditions to be
ascertained by the provincial board. It leaves, as
we have already said, the entire operation or non-
operation of the law upon the provincial boards.
The discretion vested is arbitrary because it is
absolute and unlimited. A provincial board need
not investigate conditions or find any fact, or await
the happening of any specified contingency. It is
bound by no rule, limited by no principle of
expediency announced by the legislature. It may
take into consideration certain facts or conditions;
and, again, it may not. It may have any purpose or
no purpose at all. It need not give any reason or
have any reason whatsoever for refusing or failing
to appropriate any funds for the salary of a
probation officer. This is a matter which rests entirely
at its pleasure. The fact that at some future time
we cannot say when the provincial boards may
appropriate funds for the salaries of probation
officers and thus put the law into operation in the
various provinces will not save the statute. The time
of its taking into effect, we reiterate, would yet be
based solely upon the will of the provincial boards
and not upon the happening of a certain specified
contingency, or upon the ascertainment of certain
facts or conditions by a person or body other than
the legislature itself.
The various provincial boards are, in practical
effect, endowed with the power of suspending the
operation of the Probation Law in their respective
provinces. In some jurisdictions, constitutions
provide that laws may be suspended only by the
legislature or by its authority. Thus, section 28, article
I of the Constitution of Texas provides that "No
power of suspending laws in this state shall be
exercised except by the legislature"; and section 26,
article I of the Constitution of Indiana provides "That
the operation of the laws shall never be suspended,
except by authority of the General Assembly." Yet,
even provisions of this sort do not confer absolute
power of suspension upon the legislature. While it
may be undoubted that the legislature may
suspend a law, or the execution or operation of a
law, a law may not be suspended as to certain
individuals only, leaving the law to be enjoyed by
others. The suspension must be general, and cannot
be made for individual cases or for particular
localities. In Holden vs. James ([1814], 11 Mass., 396;
6 Am. Dec., 174, 177, 178), it was said:
"By the twentieth article of the declaration of rights
in the constitution of this commonwealth, it is
declared that the power of suspending the laws, or
the execution of the laws, ought never to be
exercised but by the legislature, or by authority
derived from it, to be exercised in such particular
cases only as the legislature shall expressly provide
for. Many of the articles in that declaration of rights
were adopted from the Magna Charta of England,
and from the bill of rights passed in the reign of
William and Mary. The bill of rights contains an
enumeration of the oppressive acts of James II,
tending to subvert and extirpate the protestant
religion, and the laws and liberties of the kingdom;
and the first of them is the assuming and exercising
a power of dispensing with and suspending the
laws, and the execution of the laws without consent
of parliament. The first article in the claim or
declaration of rights contained in the statute is, that
the exercise of such power, by regal authority
without consent of parliament, is illegal. In the tenth
section of the same statute it is further declared
and enacted, that 'No dispensation by non
obstante of or to any statute, or any part thereof,
should be allowed; but the same should be held
void and of no effect, except a dispensation be
allowed of in such statute.' There is an implied
reservation of authority in the parliament to exercise
the power here mentioned; because, according to
23 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
the theory of the English Constitution, 'that absolute
despotic power, which must in all governments
reside somewhere,' is intrusted to the parliament: 1
Bl. Com., 160.
"The principles of our government are widely
different in this particular. Here the sovereign and
absolute power resides in the people; and the
legislature can only exercise what is delegated to
them according to the constitution. It is obvious that
the exercise of the power in question would be
equally oppressive to the subject, and subversive of
his right to protection, 'according to standing laws,'
whether exercised by one man or by a number of
men. It cannot be supposed that the people when
adopting this general principle from the English bill
of rights and inserting it in our constitution, intended
to bestow by implication on the general court one
of the most odious and oppressive prerogatives of
the ancient kings of England. it is manifestly
contrary to the first principles of civil liberty and
natural justice, and to the spirit of our constitution
and laws, that any one citizen should enjoy
privileges and advantages which are denied to all
others under like circumstances; or that any one
should be subject to losses, damages, suits, or
actions from which all others under like
circumstances are exempted."
To illustrate the principle: A section of a statute
relative to dogs made the owner of any dog liable
to the owner of domestic animals wounded by it for
the damages without proving a knowledge of its
vicious disposition. By a provision of the act, power
was given to the board of supervisors to determine
whether or not during the current year their county
should be governed by the provisions of the act of
which that section constituted a part. It was held
that the legislature could not confer that power.
The court observed that it could no more confer
such a power than to authorize the board of
supervisors of a county to abolish in such county the
days of grace on commercial paper, or to suspend
the statute of limitations. (Slinger vs. Henneman
[1875], 38 Wis., 504.) A similar statute in Missouri was
held void for the same reason in State vs. Field
([1853], 17 Mo., 529; 59 Am. Dec., 275.) In that case
a general statute formulating a road system
contained a provision that "if the county court of
any county should be of opinion that the provisions
of the act should not be enforced, they might, in
their discretion, suspend the operation of the same
for any specified length of time, and thereupon the
act should become inoperative in such county for
the period specified in such order; and thereupon
order the roads to be opened and kept in good
repair, under the laws theretofore in force." Said the
court: ". . . this act, by its own provisions, repeals the
inconsistent provisions of a former act, and yet it is
left to the county court to say which act shall be in
force in their county. The act does not submit the
question to the county court as an original question,
to be decided by that tribunal, whether the act
shall commence its operation within the county; but
it became by its own terms a law in every county
not excepted by name in the act. It did not, then,
require the county court to do any act in order to
give it effect. But being the law in the county, and
having by its provisions superseded and abrogated
the inconsistent provisions of previous laws, the
county court is . . . empowered, to suspend this act
and revive the repealed provisions of the former
act.' When the question is before the county court
for that tribunal to determine which law shall be in
force, it is urged before us that the power then to
be exercised by the court is strictly legislative
power, which under our constitution, cannot be
delegated to that tribunal or to any other body of
men in the state. In the present case, the question is
not presented in the abstract; for the county court
of Saline county, after the act had been for several
months in force in that county, did by order
suspend its operation; and during that suspension
the offense was committed which is the subject of
the present indictment . . .." (See Mitchell vs. State
[1901], 134 Ala., 392; 32 S., 687.)
True, the legislature may enact laws for a particular
locality different from those applicable to other
localities and, while recognizing the force of the
principle hereinabove expressed, courts in many
jurisdictions have sustained the constitutionality of
the submission of option laws to the vote of the
people. (6 R. C. L., p. 171.) But option laws thus
sustained treat of subjects purely local in character
which should receive different treatment in different
localities placed under different circumstances.
"They relate to subjects which, like the retailing of
intoxicating drinks, or the running at large of cattle
in the highways, may be differently regarded in
different localities, and they are sustained on what
seems to us the impregnable ground, that the
subject, though not embraced within the ordinary
powers of municipalities to make by-laws and
ordinances, is nevertheless within the class of public
regulations, in respect to which it is proper that the
local judgment should control." (Cooley on
Constitutional Limitations, 5th ed., p. 148.) So that,
while we do not deny the right of local self-
government and the propriety of leaving matters of
purely local concern in the hands of local
authorities or for the people of small communities to
pass upon, we believe that in matters of general
legislation like that which treats of criminals in
general, and as regards the general subject of
probation, discretion may not be vested in a
manner so unqualified and absolute as provided in
Act No. 4221. True, the statute does not expressly
state that the provincial boards may suspend the
operation of the Probation Act in particular
provinces but, considering that, in being vested
with the authority to appropriate or not the
necessary funds for the salaries of probation
officers, they thereby are given absolute discretion
to determine whether or not the law should take
effect or operate in their respective provinces, the
provincial boards are in reality empowered by the
legislature to suspend the operation of the
Probation Act in particular provinces, the Act to be
held in abeyance until the provincial boards should
decide otherwise by appropriating the necessary
funds. The validity of a law is not tested by what has
been done but by what may be done under its
provisions. (Walter E. Olsen & Co. vs. Aldanese and
Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.)
It is conceded that a great deal of latitude should
be granted to the legislature not only in the
expression of what may be termed legislative policy
24 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
but in the elaboration and execution thereof.
"Without this power, legislation would become
oppressive and yet imbecile." (People vs. Reynolds,
5 Gilman, 1.) It has been said that popular
government lives because of the inexhaustible
reservoir of power behind it. It is unquestionable
that the mass of powers of government is vested in
the representatives of the people and that these
representatives are no further restrained under our
system than by the express language of the
instrument imposing the restraint, or by particular
provisions which by clear intendment, have that
effect. (Angara vs. Electoral Commission [1936], 35
Off. Gaz., 23; Schneckenburger vs. Moran [1936], 35
Off. Gaz., 1317.) But, it should be borne in mind that
a constitution is both a grant and a limitation of
power and one of these time-honored limitations is
that, subject to certain exceptions, legislative
power shall not be delegated.
We conclude that section 11 of Act No. 4221
constitutes an improper and unlawful delegation of
legislative authority to the provincial boards and is,
for this reason, unconstitutional and void.
3. It is also contended that the Probation Act
violates the provision of our Bill of Rights which
prohibits the denial to any person of the equal
protection of the laws (Art. III, sec. 1, subsec. 1,
Constitution of the Philippines.)
This basic individual right sheltered by the
Constitution is a restraint on all the three grand
departments of our government and on the
subordinate instrumentalities and subdivisions
thereof, and on many constitutional powers, like the
police power, taxation and eminent domain. The
equal protection of the laws, sententiously observes
the Supreme Court of the United States, "is a pledge
of the protection of equal laws." (Yick Wo vs.
Hopkins [1886], 118 U. S., 356; 30 Law. ed., 220; 6
Sup. Ct. Rep., 10464; Perley vs. North Carolina, 249
U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of
course, what may be regarded as a denial of the
equal protection of the laws is a question not
always easily determined. No rule that will cover
every case can be formulated. (Connolly vs. Union
Sewer Pipe Co. [1902], 184 U. S., 540; 22 Sup. Ct.
Rep., 431; 46 Law. ed., 679.) Class legislation
discriminating against some and favoring others is
prohibited. But classification on a reasonable basis,
and not made arbitrarily or capriciously, is
permitted. (Finely vs. California [1911], 222 U. S., 28;
56 Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C. & S. F.
Ry Co. vs. Ellis [1897], 165 U. S., 150; 41 Law. ed., 666;
17 Sup. Ct. Rep., 255; Smith, Bell & Co. vs. Natividad
[1919], 40 Phil., 136.) The classification, however, to
be reasonable must be based on substantial
distinctions which make real differences; it must be
germane to the purposes of the law; it must not be
limited to existing conditions only, and must apply
equally to each member of the class. (Borgnis vs.
Falk. Co. [1911], 147 Wis., 327, 353; 133 N. W., 209; 3
N. C. C. A., 649; 37 L. R. A. [N. S.], 489; State vs.
Cooley, 56 Minn., 540; 530-552; 58 N. W., 150;
Lindsley vs. Natural Carbonic Gas Co. [1911], 220 U.
S., 61, 79, 55 Law. ed., 369, 377; 31 Sup. Ct. Rep.,
337; Ann. Cas., 1912C, 160; Lake Shore & M. S. R.
Co. vs. Clough [1917], 242 U. S., 375; 37 Sup. Ct.
Rep., 144; 61 Law. ed., 374; Southern Ry. Co. vs.
Greene [1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287;
54 Law. ed., 536; 17 Ann. Cas., 1247; Truax vs.
Corrigan [1921], 257 U. S., 312; 12 C. J., pp. 1148,
1149.)
In the case at bar, however, the resultant inequality
may be said to flow from the unwarranted
delegation of legislative power, although perhaps
this is not necessarily the result in every case.
Adopting the example given by one of the counsel
for the petitioners in the course of his oral argument,
one province may appropriate the necessary fund
to defray the salary of a probation officer, while
another province may refuse or fail to do so. In such
a case, the Probation Act would be in operation in
the former province but not in the latter. This means
that a person otherwise coming within the purview
of the law would be liable to enjoy the benefits of
probation in one province while another person
similarly situated in another province would be
denied those same benefits. This is obnoxious
discrimination. Contrariwise, it is also possible for all
the provincial boards to appropriate the necessary
funds for the salaries of the probation officers in
their respective provinces, in which case no
inequality would result for the obvious reason that
probation would be in operation in each and every
province by the affirmative action of appropriation
by all the provincial boards. On that hypothesis,
every person coming within the purview of the
Probation Act would be entitled to avail of the
benefits of the Act. Neither will there be any
resulting inequality if no province, through its
provincial board, should appropriate any amount
for the salary of the probation officer which is the
situation now and, also, if we accept the
contention that, for the purposes of the Probation
Act, the City of Manila should be considered as a
province and that the municipal board of said city
has not made any appropriation for the salary of a
probation officer. These different situations
suggested show, indeed, that while inequality may
result in the application of the law and in the
conferment of the benefits therein provided,
inequality is not in all cases the necessary result. But
whatever may be the case, it is clear that section
11 of the Probation Act creates a situation in which
discrimination and inequality are permitted or
allowed. There are, to be sure, abundant authorities
requiring actual denial of the equal protection of
the law before courts should assume the task of
setting aside a law vulnerable on that score, but
premises and circumstances considered, we are of
the opinion that section 11 of Act No. 4221 permits
of the denial of the equal protection of the law and
is on that account bad. We see no difference
between a law which denies equal protection and
a law which permits of such denial. A law may
appear to be fair on its face and impartial in
appearance, yet, if it permits of unjust and illegal
discrimination, it is within the constitutional
prohibition. (By analogy, Chy Lung vs. Freeman
[1876], 292 U. S., 275; 23 Law. ed., 550; Henderson vs.
Mayor [1876], 92 U. S., 259; 23 Law. ed., 543; Ex
parte Virginia [1880], 100 U. S., 339; 25 Law ed., 676;
Neal vs. Delaware [1881], 103 U. S., 370; 26 Law. ed.,
567; Soon Hing vs. Crowley [1885], 113 U. S., 703; 28
Law. ed., 1145; Yick Wo vs. Hopkins [1886], 118 U. S.,
356; 30 Law. ed., 220; Williams vs. Mississippi [1897],
170 U. S., 218; 18 Sup. Ct. Rep., 583; 42 Law. ed.,
25 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
1012; Bailey vs. Alabama [1911], 219 U. S., 219; 31
Sup. Ct. Rep. 145; 55 Law. ed., 191; Sunday Lake
Iron Co. vs. Wakefield [1918], 247 U. S., 450; 38 Sup.
Ct. Rep., 495; 62 Law. ed., 1154.) In other words,
statutes may be adjudged unconstitutional
because of their effect in operation (General Oil
Co. vs. Clain [1907], 209 U. S., 211; 28 Sup. Ct. Rep.,
475; 52 Law. ed., 754; State vs. Clement Nat. Bank
[1911], 84 Vt., 167; 78 Atl., 944; Ann. Cas., 1912D, 22).
If a law has the effect of denying the equal
protection of the law it is unconstitutional. (6 R. C. L.
p. 372; Civil Rights Cases, 109 U. S., 3; 3 Sup. Ct.
Rep., 18; 27 Law. ed., 835; Yick Wo vs. Hopkins,
supra; State vs. Montgomery, 94 Me., 192; 47 Atl.,
165; 80 A. S. R., 386; State vs. Dering, 84 Wis., 585; 54
N. W., 1104; 36 A. S. R., 948; 19 L. R. A., 858.) Under
section 11 of the Probation Act, not only may said
Act be in force in one or several provinces and not
be in force in the other provinces, but one province
may appropriate for the salary of a probation
officer of a given year and have probation
during that year and thereafter decline to make
further appropriation, and have no probation in
subsequent years. While this situation goes rather to
the abuse of discretion which delegation implies, it
is here indicated to show that the Probation Act
sanctions a situation which is intolerable in a
government of laws, and to prove how easy it is,
under the Act, to make the guaranty of the
equality clause but "a rope of sand". (Brewer, J. Gulf
C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S., 150, 154; 41
Law. ed., 666; 17 Sup. Ct. Rep., 255.)
Great reliance is placed by counsel for the
respondents on the case of Ocampo vs. United
States ( [1914], 234 U. S., 91; 58 Law. ed., 1231). In
that case, the Supreme Court of the United States
affirmed the decision of this court (18 Phil., 1) by
declining to uphold the contention that there was a
denial of the equal protection of the laws because,
as held in Missouri vs. Lewis (Bowman vs. Lewis)
decided in 1880 (101 U. S., 220; 25 Law. ed., 991),
the guaranty of the equality clause does not
require territorial uniformity. It should be observed,
however, that this case concerns the right to
preliminary investigations in criminal cases originally
granted by General Orders No. 58. No question of
legislative authority was involved and the alleged
denial of the equal protection of the laws was the
result of the subsequent enactment of Act No. 612,
amending the charter of the City of Manila (Act No.
813) and providing in section 2 thereof that "in
cases triable only in the court of first instance of the
City of Manila, the defendant . . . shall not be
entitled as of right to a preliminary examination in
any case where the prosecuting attorney, after a
due investigation of the facts . . . shall have
presented an information against him in proper
form . . .." Upon the other hand, an analysis of the
arguments and the decision indicates that the
investigation by the prosecuting attorney
although not in the form had in the provinces
was considered a reasonable substitute for the City
of Manila, considering the peculiar conditions of
the city as found and taken into account by the
legislature itself.
Reliance is also placed in the case of Missouri vs.
Lewis, supra. That case has reference to a situation
where the constitution of Missouri permits appeals
to the Supreme Court of the state from final
judgments of any circuit court, except those in
certain counties for which counties the constitution
establishes a separate court of appeals called the
St. Louis Court of Appeals. The provision
complained of, then, is found in the constitution
itself and it is the constitution that makes the
apportionment of territorial jurisdiction.
We are of the opinion that section 11 of the
Probation Act is unconstitutional and void because
it is also repugnant to the equal- protection clause
of our Constitution.
Section 11 of the Probation Act being
unconstitutional and void for the reasons already
stated, the next inquiry is whether or not the entire
Act should be avoided.
"In seeking the legislative intent, the presumption is
against any mutilation of a statute, and the courts
will resort to elimination only where an
unconstitutional provision is interjected into a
statute otherwise valid, and is so independent and
separable that its removal will leave the
constitutional features and purposes of the act
substantially unaffected by the process." (Riccio vs.
Hoboken, 69 N. J. Law., 649, 662; 63 L.. R. A., 485; 55
Atl., 1109, quoted in Williams vs. Standard Oil Co.
[1929], 278 U. S., 235, 240; 73 Law. ed., 287, 309; 49
Sup. Ct. Rep., 115; 60 A. L. R., 596.) In Barrameda vs.
Moir ([1913], 25 Phil., 44, 47), this court stated the
well-established rule concerning partial invalidity of
statutes in the following language:
". . . where part of a statute is void, as repugnant to
the Organic Law, while another part is valid, the
valid portion, if separable from the invalid, may
stand and be enforced. But in order to do this, the
valid portion must be so far independent of the
invalid portion that it is fair to presume that the
Legislature would have enacted it by itself if they
had supposed that they could not constitutionally
enact the other. (Mutual Loan Co. vs. Martell, 200
Mass., 482; 86 N. E., 916; 128 A. S. R., 446; Supervisors
of Holmes Co. vs. Black Creek Drainage District, 99
Miss., 739; 55 Sou., 963.) Enough must remain to
make a complete, intelligible, and valid statute,
which carries out the legislative intent. (Pearson vs.
Bass, 132 Ga., 117; 63 S. E., 798.) The void provisions
must be eliminated without causing results affecting
the main purpose of the Act, in a manner contrary
to the intention of the Legislature. (State vs. A. C. L.
R., Co., 56 Fla., 617, 642; 47 Sou., 969; Harper vs.
Galloway, 58 Fla., 255; 51 Sou., 226; 26 L. R. A., N. S.,
794; Connolly vs. Union Sewer Pipe Co., 184 U. S.,
540, 565; People vs. Strassheim, 240 Ill., 279, 300; 88
N. E., 821; 22 L. R. A., N. S., 1135; State vs.
Cognevich, 124 La., 414; 50 Sou., 439.) The
language used in the invalid part of a statute can
have no legal force or efficacy for any purpose
whatever, and what remains must express the
legislative will, independently of the void part, since
the court has no power to legislate. (State vs.
Junkin, 85 Neb., 1; 122 N. W., 473; 23 L. R. A., N. S.,
839; Vide, also, U. S. vs. Rodriguez [1918], 38 Phil.,
759; Pollock vs. Farmers' Loan and Trust Co. [1895],
158 U. S., 601, 635; 39 Law. ed., 1108, 1125; 15 Sup.
Ct. Rep., 912; 6 R. C. L., 121.)"
It is contended that even if section 11, which makes
the Probation Act applicable only in those
26 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
provinces in which the respective provincial boards
have provided for the salaries of probation officers
were inoperative on constitutional grounds, the
remainder of the Act would still be valid and may
be enforced. We should be inclined to accept the
suggestion but for the fact that said section is, in our
opinion, so inseparably linked with the other
portions of the Act that with the elimination of the
section what would be left is the bare idealism of
the system, devoid of any practical benefit to a
large number of people who may be deserving of
the intended beneficial results of that system. The
clear policy of the law, as may be gleaned from a
careful examination of the whole context, is to
make the application of the system dependent
entirely upon the affirmative action of the different
provincial boards through appropriation of the
salaries for probation officers at rates not lower than
those provided for provincial fiscals. Without such
action on the part of the various boards, no
probation officers would be appointed by the
Secretary of Justice to act in the provinces. The
Philippines is divided or subdivided into provinces
and it needs no argument to show that if not one of
the provinces and this is the actual situation how
appropriates the necessary fund for the salary of
a probation officer, probation under Act No. 4221
would be illusory. There can be no probation
without a probation officer. Neither can there be a
probation officer without a probation system.
Section 2 of the Act provides that the probation
officer shall supervise and visit the probationer.
Every probation officer is given, as to the persons
placed in probation under his care, the powers of a
police officer. It is the duty of probation officers to
see that the conditions which are imposed by the
court upon the probationer under his care are
complied with. Among those conditions, the
following are enumerated in section 3 of the Act:
"That the probationer (a) shall indulge in no injurious
or vicious habits;
"(b) Shall avoid places or persons of disreputable or
harmful character;
"(c) Shall report to the probation officer as directed
by the court or probation officers;
"(d) Shall permit the probation officer to visit him at
reasonable times at his place of abode or
elsewhere;
"(e) Shall truthfully answer any reasonable inquiries
on the part of the probation officer concerning his
conduct or condition;
"(f) Shall endeavor to be employed regularly;
"(g) Shall remain or reside within a specified place
or locality;
"(h) Shall make reparation or restitution to the
aggrieved parties for actual damages or losses
caused by his offense;
"(i) Shall support his wife and children;
"(j) Shall comply with such orders as the court may
from time to time make; and
"(k) Shall refrain from violating any law, statute,
ordinance, or any by-law or regulation,
promulgated in accordance with law."
The court is required to notify the probation officer
in writing of the period and terms of probation.
Under section 4, it is only after the period of
probation, the submission of a report of the
probation officer and appropriate finding of the
court that the probationer has complied with the
conditions of probation that probation may be
definitely terminated and the probationer finally
discharged from supervision. Under section 5, if the
court finds that there is non-compliance with said
conditions, as reported by the probation officer, it
may issue a warrant for the arrest of the probationer
and said probationer may be committed with or
without bail. Upon arraignment and after an
opportunity to be heard, the court may revoke,
continue or modify the probation, and if revoked,
the court shall order the execution of the sentence
originally imposed. Section 6 prescribes the duties of
probation officers: "It shall be the duty of every
probation officer to furnish to all persons placed on
probation under his supervision a statement of the
period and conditions of their probation, and to
instruct them concerning the same; to keep
informed concerning their conduct and condition;
to aid and encourage them by friendly advice and
admonition, and by such other measures, not
inconsistent with the conditions imposed by the
court as may seem most suitable, to bring about
improvement in their conduct and condition; to
report in writing to the court having jurisdiction over
said probationers at least once every two months
concerning their conduct and condition; to keep
records of their work; to make such reports as are
necessary for the information of the Secretary of
Justice and as the latter may require; and to
perform such other duties as are consistent with the
functions of the probation officer and as the court
or judge may direct. The probation officers
provided for in this Act may act as parole officers
for any penal or reformatory institution for adults
when so requested by the authorities thereof, and,
when designated by the Secretary of Justice, shall
act as parole officer of persons released on parole
under Act Numbered Forty-one Hundred and Three,
without any additional compensation."
It is argued, however, that even without section 11
probation officers may be appointed in the
provinces under section 10 of the Act which
provides as follows:
"There is hereby created in the Department of
Justice and subject to its supervision and control, a
Probation Office under the direction of a Chief
Probation Officer to be appointed by the
Governor-General with the advise and consent of
the Senate who shall receive a salary of four
thousand eight hundred pesos per annum. To carry
out the purposes of this Act, there is hereby
appropriated out of any funds in the Insular Treasury
not otherwise appropriated, the sum of fifty
thousand pesos to be disbursed by the Secretary of
Justice, who is hereby authorized to appoint
probation officers and the administrative personnel
of the probation office under civil service
regulations from among those who possess the
qualifications, training and experience prescribed
by the Bureau of Civil Service, and shall fix the
compensation of such probation officers and
administrative personnel until such positions shall
have been included in the Appropriation Act."
But the probation officers and the administrative
personnel referred to in the foregoing section are
clearly not those probation officers required to be
27 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
appointed for the provinces under section 11. It
may be said, reddendo singula singulis, that the
probation officers referred to in section 10 above-
quoted are to act as such, not in the various
provinces, but in the central office known as the
Probation Office established in the Department of
Justice, under the supervision of a Chief Probation
Officer. When the law provides that "the probation
officer" shall investigated and make reports to the
court (secs. 1 and 4); that "the probation officer"
shall supervise and visit the probationer (sec. 2; sec.
6, par. d); that the probationer shall report to the
"probation officer" (sec. 3, par. c.), shall allow "the
probation officer" to visit him (sec. 3, par. d), shall
truthfully answer any reasonable inquiries on the
part of "the probation officer" concerning his
conduct or condition (sec. 3, par. 4); that the court
shall notify "the probation officer" in writing of the
period and terms of probation (sec. 3, last par.), it
means the probation officer who is in charge of a
particular probationer in a particular province. It
never could have been the intention of the
legislature, for instance, to require a probationer in
Batanes, to report to a probation officer in the City
of Manila, or to require a probation officer in Manila
to visit the probationer in the said province of
Batanes, to place him under his care, to supervise
his conduct, to instruct him concerning the
conditions of his probation or to perform such other
functions as are assigned to him by law.
That under section 10 the Secretary of Justice may
appoint as many probation officers as there are
provinces or groups of provinces is, of course,
possible. But this would be arguing on what the law
may be or should be and not on what the law is.
Between is and ought there is a far cry. The wisdom
and propriety of legislation is not for us to pass
upon. We may think a law better otherwise than it
is. But much as has been said regarding progressive
interpretation and judicial legislation we decline to
amend the law. We are not permitted to read into
the law matters and provisions which are not there.
Not for any purpose not even to save a statute
from the doom of invalidity.
Upon the other hand, the clear intention and policy
of the law is not to make the Insular Government
defray the salaries of probation officers in the
provinces but to make the provinces defray them
should they desire to have the Probation Act apply
thereto. The sum of P50,000, appropriated "to carry
out the purposes of this Act", is to be applied,
among other things, for the salaries of probation
officers in the central office at Manila. These
probation officers are to receive such
compensations as the Secretary of Justice may fix
"until such positions shall have been included in the
Appropriation Act". It was not the intention of the
legislature to empower the Secretary of Justice to
fix the salaries of probation officers in the provinces
or later on to include said salaries in an
appropriation act. Considering, further, that the
sum of P50,000 appropriated in section 10 is to
cover, among other things, the salaries of the
administrative personnel of the Probation Office,
what would be left of the amount can hardly be
said to be sufficient to pay even nominal salaries to
probation officers in the provinces. We take judicial
notice of the fact that there are 48 provinces in the
Philippines and we do not think it is seriously
contended that, with the fifty thousand pesos
appropriated for the central office, there can be in
each province, as intended, a probation officer
with a salary not lower than that of a provincial
fiscal. If this is correct, the contention that without
section 11 of Act No. 4221 said act is complete is an
impracticable thing under the remainder of the
Act, unless it is conceded that in our case there can
be a system of probation in the provinces without
probation officers.
Probation as a development of modern penology is
a commendable system. Probation laws have been
enacted, here and in other countries, to permit
what modern criminologists call the
"individualization of punishment", the adjustment of
the penalty to the character of the criminal and the
circumstances of his particular case. It provides a
period of grace in order to aid in the rehabilitation
of a penitent offender. It is believed that, in any
cases, convicts may be reformed and their
development into hardened criminals aborted. It,
therefore, takes advantage of an opportunity for
reformation and avoids imprisonment so long as the
convict gives promise of reform. (United States vs.
Murray [1925], 275 U. S., 347, 357, 358; 72 Law. ed.,
309; 312, 313; 48 Sup. Ct. Rep., 146; Kaplan vs.
Hecht, 24 F. [2d], 664, 665.) The welfare of society is
its chief end and aim. The benefit to the individual
convict is merely incidental. But while we believe
that probation is commendable as a system and its
implantation into the Philippines should be
welcomed, we are forced by our inescapable duty
to set the law aside because of repugnancy to our
fundamental law.
In arriving at this conclusion, we have endeavored
to consider the different aspects presented by able
counsel for both parties, as well in their
memorandums as in their oral argument. We have
examined the cases brought to our attention, and
others we have been able to reach in the short
time at our command for the study and
deliberation of this case. In the examination of the
cases and in the analysis of the legal principles
involved we have inclined to adopt the line of
action which in our opinion, is supported by better
reasoned authorities and is more conducive to the
general welfare. (Smith, Bell & Co. vs. Natividad
[1919], 40 Phil., 136.) Realizing the conflict of
authorities, we have declined to be bound by
certain adjudicated cases brought to our attention,
except where the point or the principle is settled
directly or by clear implication by the more
authoritative pronouncements of the Supreme
Court of the United States. This line of approach is
justified because:
(a) The constitutional relations between the Federal
and the State governments of the United States
and the dual character of the American
Government is a situation which does not obtain in
the Philippines;
(b) The situation of a state of the American Union or
of the District of Columbia with reference to the
Federal Government of the. United States is not the
situation of a province with respect to the Insular
Government (Art. I, sec. 8, cl. 17, and 10th
Amendment, Constitution of the United States; Sims
vs. Rives, 84 Fed. [2d], 871);
28 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
(c) The distinct federal and state judicial
organizations of the United States do not embrace
the integrated judicial system of the Philippines
(Schneckenburger vs. Moran [1936], 35 Off. Gaz., p.
1317);
(d) "General propositions do not decide concrete
cases" (Justice Holmes in Lochner vs. New York
[1904], 198 U. S., 45, 76; 49 Law. ed., 937, 949) and,
"to keep pace with . . . new developments of times
and circumstances" (Chief Justice Waite in
Pensacola Tel. Co. vs. Western Union Tel. Co. [1899],
96 U. S., 1, 9; 24 Law. ed., 708; Yale Law Journal, Vol.
XXIX, No. 2, Dec. 1919, 141, 142), fundamental
principles should be interpreted having in view
existing local conditions and environments.
Act No. 4221 is hereby declared unconstitutional
and void and the writ of prohibition is, accordingly,
granted. Without any pronouncement regarding
costs. So ordered.
Avancea, C. J., Imperial, Diaz and Concepcion,
JJ., concur.
(Ichong v. Hernandez, G.R. No. L-7995, May 31,
1957)
ALREADY READ IN POLICE POWER
EN BANC
[G.R. No. L-7995. May 31, 1957.]
LAO H. ICHONG, in his own behalf and in behalf of
other alien residents, corporations and partnerships
adversely affected by Republic Act No. 1180,
petitioner, vs. JAIME HERNANDEZ, Secretary of
Finance, and MARCELINO SARMIENTO, City Treasuer
of Manila, respondent.
Ozaeta, Lichauco & Picazo and Sycip, Quisumbing,
Salazar & Associates for petitioner.
Solicitor General Ambrosio Padilla and Solicitor
Pacifico P. de Castro for respondent Secretary of
Finance.
City Fiscal Eugenio Angeles and Assistant City Fiscal
Eulogio S. Serrano for respondent City Treasurer.
Dionisio Reyes as Amicus Curiae.
Marcial G. Mendiola as Amicus Curiae.
Emiliano R. Navarro as Amicus Curiae.
SYLLABUS
1. CONSTITUTIONAL LAW; POLICE POWER; NATURE
AND SCOPE. Police power is far-reaching in
scope, and it is almost impossible to limit its sweep.
It derives its existence from the very existence of the
State itself, and does not need to be expressed or
defined in its scope. It is said to be co-extensive with
self - protection and survival, and as such it is the
most positive and active of all governmental
processes, the most essential, insistent and
illimitable. Especially is it so under a modern
democratic framework where the demands of
society and of nations have multiplied to almost
unimaginable proportions; the field and scope of
police power has become almost boundless, just as
the fields of public interest and public welfare have
become almost all-embracing and have
transcended human foresight.
2. ID.; GUARANTEES IN SECTION I, ARTICLE III OF THE
CONSTITUTION; UNIVERSALITY OF APPLICATION.
The constitutional guarantees in Section I, Article III,
of the Constitution, which embody the essence of
individual liberty and freedom in democracies, are
not limited to citizens alone but are admittedly
universal in their application, without regard to any
differences of race, of color, or of nationality (Yiek
Wo vs. Hopkins, 30 L. ed., 220, 226).
3. ID.; LAW DEPRIVATION OF LIFE, LIBERTY OR
PROPERTY; TEST OR STANDARD. The conflict
between police power and the guarantees of due
process and equal protection of the laws is more
apparent than real. Properly related, the power
and the guarantees are supposed to coexist. The
balancing is the essence, or the indispensable
means for the attainment of legitimate aspirations
of any democratic society. There can be no
absolute power, whoever exercises it, for that would
be tyranny. Yet there can neither be absolute
liberty, for that would mean license and anarchy.
So the State can deprive persons of life, liberty or
property, provided there is due process of law; and
persons may be classified into classes and groups,
provided everyone is given the equal protection of
the law. The test or standard, as always, is reason.
The police power legislation must be firmly
grounded on public interest and welfare, and a
reasonable relation must exist between purposes
and means. And if distinction or classification has
been made, there must be a reasonable basis for
said distinction.
4. ID.; EQUAL PROTECTION OF THE LAW CLAUSE;
WHEN NOT DEEMED INFRINGED BY LEGISLATION.
The equal protection of the law clause is against
undue favor and individual or class privilege, as well
as hostile discrimination or the oppression of
inequality. It is not intended to prohibit legislation,
which is limited either in the object to which it is
directed or by territory within which it is to operate.
It does not demand absolute equality among
residents; it merely requires that all persons shall be
treated alike, under like circumstances and
conditions both as to privileges conferred and
liabilities enforced. The equal protection clause is
not infringed by legislation which applies only to
those persons falling within a specified class, if it
applies alike to all persons within such class, and
reasonable grounds exist for making a distinction
between those who fall within such class and those
who do not (2 Cooley, Constitutional Limitations,
824-825).
5. ID.; ID.; LEGISLATIVE POWER TO MAKE DISTINCTION
AND CLASSIFICATION AMONG PERSONS;
CITIZENSHIP AS GROUND FOR CLASSIFICATION.
The Power of the legislature to make distinctions
and classifications among persons is not curtailed or
denied by the equal protection of the laws clause.
The legislative power admits of a wide scope of
discretion, and a law can be violative of the
constitutional limitation only when the classification
is without reasonable basis. Citizenship is a legal
and valid ground for classification.
6. ID.; ID.; NATIONALIZATION OF RETAIL TRADE;
CLASSIFICATION IN Republic Act No. 1180 ACTUAL,
REAL AND REASONABLE. The classification in the
law of retail traders into nationals and aliens is
actual, real and reasonable. All persons of one
class are treated alike, and it cannot be said that
the classification is patently unreasonable and
unfounded. Hence, it is the duty of this Court to
declare that the legislature acted within its
legitimate prerogative and it cannot declare that
29 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
the act transcends the limits of equal protection
established by the Constitution.
7. ID.; ID.; ID.; ID.; TEST OF REASONABLENESS. The
law in question is deemed absolutely necessary to
bring about the desired legislative objective, i.e., to
free the national economy from alien control and
dominance. It is not necessarily unreasonable
because it affects private rights and privileges (II
Am. Jur., pp. 1080-1081). The test of reasonableness
of a law is the appropriateness or adequacy under
all circumstances of the means adopted to carry
out its purpose into effect. Judged by this test, the
disputed legislation, which is not merely reasonable
but actually necessary, must be considered not to
have infringed the constitutional limitation of
reasonableness.
8. ID.; ID.; ID.; ID.; ID.; Republic Act No. 1180
TOLERANT AND REASONABLE. A cursory study of
the provisions of the law immediately reveals how
tolerant and reasonable the Legislature has been.
The law is made prospective and recognizes the
right and privilege of those already engaged in the
occupation to continue therein during the rest of
their lives; and similar recognition of the right to
continue is accorded associations of aliens. The
right or privilege is denied only to persons upon
conviction of certain offenses.
9. ID.; ID.; ID.; ATTAINMENT OF LEGISLATIVE
ASPIRATIONS OF A PEOPLE NOT BEYOND THE LIMITS
OF LEGISLATIVE AUTHORITY. If political
independence is a legitimate aspiration of a
people, then economic independence is none of
less legitimate. Freedom and liberty are not real
and positive if the people are subject to the
economic control and domination of others,
especially if not of their own race or country. The
removal and eradication of the shackles of foreign
economic control and domination is one of the
noblest motives that a national legislature may
pursue. It is impossible to conceive that legislation
that seeks to bring it about can infringe the
constitutional limitation of due process. The
attainment of a legitimate aspiration of a people
can never be beyond the limits of legislative
authority.
10. ID.; ID.; ID.; NATIONALISTIC TENDENCY
MANIFESTED IN THE CONSTITUTION. Nationalistic
tendency is manifested in various provisions of the
Constitution. The nationalization of the retail trade is
only a continuance of the nationalistic protective
policy laid down as a primary objective of the
Constitution. It cannot therefore be said that a law
imbued with the same purpose and spirit underlying
many of the provisions of the Constitution is
unreasonable, invalid or unconstitutional.
11. ID.; LEGISLATIVE DEPARTMENT; EXERCISE OF
LEGISLATIVE DISCRETION NOT SUBJECT TO JUDICIAL
REVIEW. The exercise of legislative discretion is
not subject to judicial review. The Court will not
inquire into the motives of the Legislature, nor pass
upon general matters of legislative judgment. The
Legislature is primarily the judge of the necessity of
an enactment or of any of its provisions, and every
presumption is in favor of its validity, and though the
Court may hold views inconsistent with the wisdom
of the law, it may not annul the legislation if not
palpably in excess of the legislative power.
12. ID.; TITLES OF BILLS; PROHIBITION AGAINST
DUPLICITY; PRESENCE OF DUPLICITY NOT SHOWN IN
TITLE OR PROVISIONS OF Republic Act No. 1180.
What Section 21(1) of Article VI of the Constitution
prohibits is duplicity, that is, if its title completely fails
to apprise the legislators or the public of the nature,
scope and consequences of the law or its
operation (I Sutherland, Statutory Construction, Sec.
1707, p. 297). A cursory consideration of the title
and the provisions of the bill fails to show the
presence of duplicity. It is true that the term
"regulate" does not and may not readily and at first
glance convey the idea of "nationalization" and
"prohibition", which terms express the two main
purposes and objectives of the law. But "regulate" is
a broader term than either prohibition or
nationalization. Both of these have always been
included within the term "regulation".
13. ID.; ID.; ID.; ID.; USE OF GENERAL TERMS IN TITLE
OF BILL. The general rule is for the use of general
terms in the title of a bill; the title need not be an
index to the entire contents of the law (I Sutherland,
Statutory Construction, Sec. 4803, p. 345). The
above rule was followed when the title of the Act in
question adopted the more general term "regulate"
instead of "nationalize" or "prohibit".
14. ID.; ID.; ID.; ID.; PURPOSE OF CONSTITUTIONAL
DIRECTIVE REGARDING SUBJECT OF A BILL. One
purpose of the constitutional directive that the
subject of a bill should be embraced in its title is to
apprise the legislators of the purposes, the nature
and scope of its provisions, and prevent the
enactment into law of matters which have not
received the notice, action and study of the
legislators or of the public. In case at bar it cannot
be claimed that the legislators have not been
apprised of the nature of the law, especially the
nationalization and prohibition provisions. The
legislators took active interest in the discussion of
the law, and a great many of the persons affected
by the prohibition in the law conducted a
campaign against its approval. It cannot be
claimed, therefore, that the reasons for declaring
the law invalid ever existed.
15. ID.; INTERNATIONAL TREATIES AND OBLIGATIONS
NOT VIOLATED BY Republic Act No. 1180; TREATIES
SUBJECT TO QUALIFICATION OR AMENDMENT BY
SUBSEQUENT LAW. The law does not violate
international treaties and obligations. The United
Nations Charter imposes no strict or legal
obligations regarding the rights and freedom of
their subjects (Jans Kelsen, The Law of the United
Nations, 1951 ed., pp. 29-32), and the Declaration
of Human Rights contains nothing more than a
mere recommendation, or a common standard of
achievement for all peoples and all nations. The
Treaty of Amity between the Republic of the
Philippines and the Republic of China of April 18,
1947 guarantees equality of treatment to the
Chinese nationals "upon the same terms as the
nationals of any other country". But the nationals of
China are not discriminated against because
nationals of all other countries, except those of the
United States, who are granted special rights by the
Constitution, are all Prohibited from engaging in the
retail trade. But even supposing that the law
infringes upon the said treaty, the treaty is always
30 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
subject to qualification or amendment by a
subsequent law (U.S. vs. Thompson, 258, Fed. 257,
260), and the same may never curtail or restrict the
scope of the police power of the State (Palston vs.
Pennsylvania 58 L. ed., 539).
(Villegas v. Hiu Chiong Tsai Pao Ho, G.R. No. L-
29646, November 10, 1978)
EN BANC
[G.R. No. L-29646. November 10, 1978.]
MAYOR ANTONIO J. VILLEGAS, petitioner, vs. HIU
CHIONG TSAI PAO HO and JUDGE FRANCISCO
ARCA, respondents.
Angel C . Cruz, Gregorio A. Ejercito, Felix C . Chaves
& Jose Laureta for petitioner.
Sotero H . Laurel for respondents.
DECISION
FERNANDEZ, J p:
This is a petition for certiorari to review the decision
dated September 17, 1968 of respondent Judge
Francisco Arca of the Court of First Instance of
Manila, Branch I, in Civil Case No. 72797, the
dispositive portion of which reads:
"Wherefore, judgment is hereby rendered in favor of
the petitioner and against the respondents,
declaring Ordinance No. 6537 of the City of Manila
null and void. The preliminary injunction is hereby
made permanent. No pronouncement as to cost.
SO ORDERED.
Manila, Philippines, September 17, 1968.
(SGD.) FRANCISCO ARCA
Judge" 1
The controverted Ordinance No. 6537 was passed
by the Municipal Board of Manila on February 22,
1968 and signed by the herein petitioner Mayor
Antonio J. Villegas of Manila on March 27, 1968. 2
City Ordinance No. 6537 is entitled:
"AN ORDINANCE MAKING IT UNLAWFUL FOR ANY
PERSON NOT A CITIZEN OF THE PHILIPPINES TO BE
EMPLOYED IN ANY PLACE OF EMPLOYMENT OR TO
BE ENGAGED IN ANY KIND OF TRADE, BUSINESS OR
OCCUPATION WITHIN THE CITY OF MANILA WITHOUT
FIRST SECURING AN EMPLOYMENT PERMIT FROM THE
MAYOR OF MANILA; AND FOR OTHER PURPOSES." 3
Section 1 of said Ordinance No. 6537 4 prohibits
aliens from being employed or to engage or
participate in any position or occupation or
business enumerated therein, whether permanent,
temporary or casual, without first securing an
employment permit from the Mayor of Manila and
paying the permit fee of P50.00 except persons
employed in the diplomatic or consular missions of
foreign countries, or in the technical assistance
programs of both the Philippine Government and
any foreign government, and those working in their
respective households, and members of religious
orders or congregations, sect or denomination, who
are not paid monetarily or in kind. cdrep
Violations of this ordinance is punishable by an
imprisonment of not less than three (3) months to six
(6) months or fine of not less than P100.00 but not
more than P200.00 or both such fine and
imprisonment, upon conviction. 5
On May 4, 1968, private respondent Hiu Chiong Tsai
Pao Ho, who was employed in Manila, filed a
petition with the Court of First Instance of Manila,
Branch I, denominated as Civil Case No. 72797,
praying for the issuance of the writ of preliminary
injunction and restraining order to stop the
enforcement of Ordinance No. 6637 as well as for a
judgment declaring said Ordinance No. 6537 null
and void. 6
In this petition, Hiu Chiong Tsai Pao Ho assigned the
following as his grounds for wanting the ordinance
declared null and void:
1) As a revenue measure imposed on aliens
employed in the City of Manila, Ordinance No. 6537
is discriminatory and violative of the rule of the
uniformity in taxation;
2) As a police power measure, it makes no
distinction between useful and non-useful
occupations, imposing a fixed P50.00 employment
permit, which is out of proportion to the cost of
registration and that it fails to prescribe' any
standard to guide and/or limit the action of the
Mayor, thus, violating the fundamental principle on
illegal delegation of legislative powers:
3) It is arbitrary, oppressive and unreasonable,
being applied only to aliens who are thus, deprived
of their rights to life, liberty and property and
therefore, violates the due process and equal
protection clauses of the Constitution. 7
On May 24, 1968, respondent Judge issued the writ
of preliminary injunction and on September 17, 1968
rendered judgment declaring Ordinance No. 6537
null and void and making permanent the writ of
preliminary injunction.8
Contesting the aforecited decision of respondent
Judge, then Mayor Antonio J. Villegas filed the
present petition on March 27, 1969. Petitioner
assigned the following as errors allegedly
committed by respondent Judge in the latter's
decision of September 17, 1968: 9
"I.
THE RESPONDENT JUDGE COMMITTED A SERIOUS
AND PATENT ERROR OF LAW IN RULING THAT
ORDINANCE NO. 6537 VIOLATED THE CARDINAL
RULE OF UNIFORMITY OF TAXATION.
II.
RESPONDENT JUDGE LIKEWISE COMMITTED A GRAVE
AND PATENT ERROR OF LAW IN RULING THAT
ORDINANCE NO. 6537 VIOLATED THE PRINCIPLE
31 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
AGAINST UNDUE DESIGNATION OF LEGISLATIVE
POWER.
III.
RESPONDENT JUDGE FURTHER COMMITTED A
SERIOUS AND PATENT ERROR OF LAW IN RULING
THAT ORDINANCE NO. 6537 VIOLATED THE DUE
PROCESS AND EQUAL PROTECTION CLAUSES OF THE
CONSTITUTION."
Petitioner Mayor Villegas argues that Ordinance No.
6537 cannot be declared null and void on the
ground that it violated the rule on uniformity of
taxation because the rule on uniformity of taxation
applies only to purely tax or revenue measures and
that Ordinance No. 6537 is not a tax or revenue
measure but is an exercise of the police power of
the state, it being principally a regulatory measure
in nature. cdll
The contention that Ordinance No. 6537 is not a
purely tax or revenue measure because its principal
purpose is regulatory in nature has no merit. While it
is true that the first part which requires that the alien
shall secure an employment permit from the Mayor
involves the exercise of discretion and judgment in
the processing and approval or disapproval of
applications for employment permits and therefore
is regulatory in character the second part which
requires the payment of P50.00 as employee's fee is
not regulatory but a revenue measure. There is no
logic or justification in exacting P50.00 from aliens
who have been cleared for employment. It is
obvious that the purpose of the ordinance is to raise
money under the guise of regulation.
The P50.00 fee is unreasonable not only because it
is excessive but because it fails to consider valid
substantial differences in situation among individual
aliens who are required to pay it. Although the
equal protection clause of the Constitution does
not forbid classification, it is imperative that the
classification, should be based on real and
substantial differences having a reasonable relation
to the subject of the particular legislation. The same
amount of P50.00 is being collected from every
employed alien, whether he is casual or
permanent, part time or full time or whether he is a
lowly employee or a highly paid executive.
Ordinance No. 6537 does not lay down any
criterion or standard to guide the Mayor in the
exercise of his discretion. It has been held that
where an ordinance of a municipality fails to state
any policy or to set up any standard to guide or
limit the mayor's action, expresses no purpose to be
attained by requiring a permit, enumerates no
conditions for its grant or refusal, and entirely lacks
standard, thus conferring upon the Mayor arbitrary
and unrestricted power to grant or deny the
issuance of building permits, such ordinance is
invalid, being an undefined and unlimited
delegation of power to allow or prevent an activity
per se lawful. 10
In Chinese Flour Importers Association vs. Price
Stabilization Board, 11 where a law granted a
government agency power to determine the
allocation of wheat flour among importers, the
Supreme Court ruled against the interpretation of
uncontrolled power as it vested in the
administrative officer an arbitrary discretion to be
exercised without a policy, rule, or standard from
which it can be measured or controlled.
It was also held in Primicias vs. Fugoso 12 that the
authority and discretion to grant and refuse permits
of all classes conferred upon the Mayor of Manila
by the Revised Charter of Manila is not uncontrolled
discretion but legal discretion to be exercised within
the limits of the law.
Ordinance No. 6537 is void because it does not
contain or suggest any standard or criterion to
guide the mayor in the exercise of the power which
has been granted to him by the ordinance.
The ordinance in question violates the due process
of law and equal protection rule of the Constitution.
Requiring a person before he can be employed to
get a permit from the City Mayor of Manila who
may withhold or refuse it at will is tantamount to
denying him the basic right of the people in the
Philippines to engage in a means of livelihood.
While it is true that the Philippines as a State is not
obliged to admit aliens within its territory, once an
alien is admitted, he cannot be deprived of life
without due process of law. This guarantee includes
the means of livelihood. The shelter of protection
under the due process and equal protection clause
is given to all persons, both aliens and citizens. 13
The trial court did not commit the errors assigned.
LLpr
WHEREFORE, the decision appealed from is hereby
affirmed, without pronouncement as to costs.
SO ORDERED.
Barredo, Makasiar, Muoz Palma, Santos, and
Guerrero, JJ ., concur.
Castro, C . J ., Antonio and Aquino, JJ ., concur in
the result.
Concepcion Jr., J ., took no part.
(Dumlao v. COMELEC, G.R. No. L-52245, January 22,
1980)
EN BANC
[G.R. No. L-52245. January 22, 1980.]
32 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO
SALAPANTAN, JR., petitioners, vs. COMMISSION ON
ELECTIONS, respondent.
Raul M . Gonzales for petitioners.
Office of the Solicitor General for respondent.
DECISION
MELENCIO-HERRERA, J p:
This is a Petition for Prohibition with Preliminary
Injunction and/or Restraining Order filed by
petitioners, in their own behalf and all others
allegedly similarly situated, seeking to enjoin
respondent Commission on Elections (COMELEC)
from implementing certain provisions of Batas
Pambansa Blg. 51, 52, and 53 for being
unconstitutional.
The Petition alleges that petitioner, Patricio Dumlao,
is a former Governor of Nueva Vizcaya, who has
filed his certificate of candidacy for said position of
Governor in the forthcoming elections of January
30, 1980. Petitioner, Romeo B. Igot, is a taxpayer, a
qualified voter and a member of the Bar who, as
such, has taken his oath to support the Constitution
and obey the laws of the land. Petitioner, Alfredo
Salapantan, Jr., is also a taxpayer, a qualified voter,
and a resident of San Miguel, Iloilo. cdasia
Petitioner Dumlao specifically questions the
constitutionality of section 4 of Batas Pambansa Blg.
52 as discriminatory and contrary to the equal
protection and due process guarantees of the
Constitution. Said Section 4 provides:
"Sec. 4. Special Disqualification. In addition to
violation of section 10 of Art. XII-C of the
Constitution and disqualification mentioned in
existing laws, which are hereby declared as
disqualification for any of the elective officials
enumerated in section 1 hereof.
Any retired elective provincial, city of municipal
official who has received payment of the
retirement benefits to which he is entitled under the
law and who shall have been 65 years of age at
the commencement of the term of office to which
he seeks to be elected, shall not be qualified to run
for the same elective local office from which he has
retired." (Paragraphing and emphasis supplied)
Petitioner Dumlao alleges that the aforecited
provision is directed insidiously against him, and that
the classification provided therein is based on
"purely arbitrary grounds and, therefore, class
legislation."
For their part, petitioners Igot and Salapantan, Jr.
assail the validity of the following statutory
provisions:
"Sec. 7. Term of office. Unless sooner removed for
cause, all local elective officials hereinabove
mentioned shall hold office for a term of six (6)
years. which shall commence on the first Monday
of March 1980."
. . ." Batas Pambansa Blg. 51
"Sec. 4. . . .
"Any person who has committed any act of
disloyalty to the State, including acts amounting to
subversion, insurrection, rebellion or other similar
crimes, shall not be qualified to be a candidate for
any of the offices covered by this Act, or to
participate in any partisan political activity therein:
provided, that a judgment of conviction for any of
the aforementioned crimes shall be conclusive
evidence of such fact and.
the filing of charges for the commission of such
crimes before a civil court or military tribunal after
preliminary investigation shall be prima facie
evidence of such fact.
". . . (Batas Pambansa Blg. 52) (Paragraphing and
emphasis supplied).
"Section 1. Election of certain Local Officials. . . .
The election shall be held on January 30, 1980."
(Batas Pambansa, Blg. 52).
"Section 6. Election and Campaign Period. The
election period shall be fixed by the Commission on
Elections in accordance with Section 6, Art. XII-C of
the Constitution. The period of campaign shall
commence on December 29, 1979 and terminate
on January 28, 1980." (ibid.)
In addition to the above-cited provisions, petitioners
Igot and Salapantan, Jr. also question the
accreditation of some political parties by
respondent COMELEC, as authorized by Batas
Pambansa Blg. 53, on the ground that it is contrary
to section 9(1), Art. XII(C) of the Constitution, which
provides that a "bona fide candidate for any public
office shall be free from any form of harassment
and discrimination."
The question of accreditation will not be taken up in
this case but in that of Bacalso, et als., vs. COMELEC
et als. (G.R. No. L-52232) where the issue has been
squarely raised. cdasia
Petitioners then pray that the statutory provisions
they have challenged be declared null and void
for being violative of the Constitution.
I. The procedural aspect.
At the outset, it should be stated that this Petition
suffers from basic procedural infirmities, hence,
traditionally unacceptable for judicial resolution. For
one, there is a misjoinder of parties and actions.
Petitioner Dumlao's interest is alien to that of
petitioners Igot and Salapantan. Petitioner Dumlao
does not join petitioners Igot and Salapantan in the
burden of their complaint, nor do the latter join
Dumlao in his. They, respectively, contest
completely different statutory provisions. Petitioner
Dumlao has joined this suit in his individual capacity
as a candidate. The action of petitioners Igot and
Salapantan is more in the nature of a taxpayer's
suit. Although petitioners plead time constraints as
the reason of their joint Petition, it would have
required only a modicum more of effort for
petitioner Dumlao, on one hand, and petitioners
33 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
Igot and Salapantan, on the other, to have filed
separate suits, in the interest of orderly procedure.
For another, there are standards that have to be
followed in the exercise of the function of judicial
review, namely: (1) the existence of an appropriate
case; (2) an interest personal and substantial by the
party raising the constitutional question; (3) the plea
that the function be exercised at the earliest
opportunity; and (4) the necessity that the
constitutional question be passed upon in order to
decide the case (People vs. Vera, 65 Phil. 56
[1937]).
It may be conceded that the third requisite has
been complied with, which is, that the parties have
raised the issue of constitutionality early enough in
their pleadings.
This Petition, however, has fallen far short of the
other three criteria.
A. Actual case and controversy.
It is basic that the power of judicial review is limited
to the determination of actual cases and
controversies.
Petitioner Dumlao assails the constitutionality of the
first paragraph of section 4 of Batas Pambansa Blg.
52, quoted earlier, as being contrary to the equal
protection clause guaranteed by the Constitution,
and seeks to prohibit respondent COMELEC from
implementing said provision. Yet, Dumlao has not
been adversely affected by the application of that
provision. No petition seeking Dumlao's
disqualification has been filed before the
COMELEC. There is no ruling of that constitutional
body on the matter, which this Court is being asked
to review on Certiorari. His is a question posed in the
abstract, a hypothetical issue, and in effect, a
petition for an advisory opinion from this Court to be
"rendered without the benefit of a detailed factual
record." Petitioner Dumlao's case is clearly within
the primary jurisdiction (see concurring Opinion of
now Chief Justice Fernando in Peralta vs. Comelec,
82 SCRA 30, 96 [1978]) of respondent COMELEC as
provided for in section 2, Art. XII-C, for the
Constitution the pertinent portion of which reads:
"Section 2. The Commission on Elections shall have
the following power and functions.
1) . . .
2) Be the sole judge of all contests relating to the
elections, returns and qualifications of all members
of the National Assembly and elective provincial
and city officials." (Emphasis supplied)
The aforequoted provision must also be related to
section 11 of Art. XII-C, which provides:
"Section 11. Any decision, order, or ruling of the
Commission may be brought to the Supreme Court
on certiorari by the aggrieved party within thirty
days from his receipt of a copy thereof."
B. Proper party.

The long-standing rule has been that "the person
who impugns the validity of a statute must have a
personal and substantial interest in the case such
that he has sustained, or will sustain, direct injury as
a result of its enforcement" (People vs. Vera, supra).
In the case of petitioners Igot and Salapantan, it
was only during the hearing, not in their Petition,
that Igot is said to be a candidate for Councilor.
Even then, it cannot be denied that neither one has
been convicted nor charged with acts of disloyalty
to the State, nor disqualified from being candidates
for local elective positions. Neither one of them has
been alleged to have been adversely affected by
the operation of the statutory provisions they assail
as unconstitutional. Theirs is a generalized
grievance. They have no personal nor substantial
interest at stake. In the absence of any litigate
interest, they can claim no locus standi in seeking
judicial redress. LibLex
It is true that petitioners Igot and Salapantan have
instituted this case as a taxpayer's suit, and that the
rule enunciated in People vs. Vera, above stated,
has been relaxed in Pascual vs. The Secretary of
Public Works (110 Phil. 331 [1960], thus:
". . . it is well settled that the validity of a statute may
be contested only by one who will sustain a direct
injury in consequence of its enforcement. Yet, there
are many decisions nullifying, at the instance of
taxpayers, laws providing for the disbursement of
public funds, upon the theory that 'the expenditure
of public funds, by an officer of the State for the
purpose of administering an unconstitutional act
constitutes a misapplication of such funds,' which
may be enjoined at the request of a taxpayer."
In the same vein, it has been held:
"In the determination of the degree of interest
essential to give the requisite standing to attack the
constitutionality of a statute, the general rule is that
not only persons individually affected, but also
taxpayers have sufficient interest in preventing the
illegal expenditure of moneys raised by taxation
and they may, therefore, question the
constitutionality of statutes requiring expenditure of
public moneys." (Philippine Constitution Association,
Inc., et als., vs. Gimenez, et als. 15 SCRA 479 [1965]).
However, the statutory provisions questioned in this
case, namely, sec. 7, BP Blg. 51, and sections 4, 1,
and 6 BP Blg. 52, do not directly involve the
disbursement of public funds. While, concededly,
the elections to be held involve the expenditure of
public moneys, nowhere in their Petition do said
petitioners allege that their tax money is "being
extracted and spent in violation of specific
constitutional protections against abuses of
legislative power" (Flast v. Cohen, 392 U.S., 83
[1960]), or that there is a misapplication of such
funds by respondent COMELEC (see Pascual vs.
Secretary of Public Works, 110 Phil. 331 [1960]), or
that public money is being deflected to any
34 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
improper purpose. Neither do petitioners seek to
restrain respondent from wasting public funds
through the enforcement of an invalid or
unconstitutional law. (Philippine Constitution
Association vs. Mathay, 18 SCRA 300 [1966]), citing
Philippine Constitution Association vs. Gimenez, 15
SCRA 479 [1965]). Besides, the institution of a
taxpayer's suit, per se, is no assurance of judicial
review. As held by this Court in Tan vs. Macapagal
(43 SCRA 677 [1972]), speaking through our present
Chief Justice, this Court is vested with discretion as
to whether or not a taxpayer's suit should be
entertained.
C. Unavoidability of constitutional question.
Again upon the authority of People vs. Vera, "it is a
well-settled ruled that the constitutionality of an act
of the legislature will not be determined by the
courts unless that question is properly raised an
presented in appropriate cases and is necessary to
a determination of the case; i.e., the issue of
constitutionality must be the very lis mota
presented."
We have already stated that, by the standards set
forth in People vs. Vera, the present is not an
"appropriate case" for either petitioner Dumlao or
for petitioners Igot and Salapantan. They are
actually without cause of action. It follows that the
necessity for resolving the issue of constitutionality is
absent, and procedural regularity would require
that his suit be dismissed.
II. The substantive viewpoint.
We have resolved, however, to rule squarely on two
of the challenged provisions, the Courts not being
entirely without discretion in the matter. Thus,
adherence to the strict procedural standard was
relaxed in Tinio vs. Mina (26 SCRA 512 [1968]); Edu
vs. Ericta (35 SCRA 481 [1970]); and in Gonzalez vs.
Comelec (27 SCRA 835 [1969]), the Opinion in the
Tinio and Gonzales cases having been penned by
our present Chief Justice. The reasons which have
impelled us are the paramount public interest
involved and the proximity of the elections which
will be held only a few days hence.
Petitioner Dumlao's contention that section 4 of BP
Blg. 52 is discriminatory against him personally is
belied by the fact that several petitions for the
disqualification of other candidates for local
positions based on the challenged provision have
already been filed with the COMELEC (as listed in p.
15, respondent's Comment). This tellingly overthrows
Dumlao's contention of intentional or purposeful
discrimination. LexLib
The assertion that Section 4 of BP Blg. 52 is contrary
to the safeguard of equal protection is neither well
taken. The constitutional guarantee of equal
protection of the laws is subject to rational
classification. If the groupings are based on
reasonable and real differentiations, one class can
be treated and regulated differently from another
class. For purposes of public service, employees 65
years of age, have been validly classified differently
from younger employees. Employees attaining that
age are subject to compulsory retirement, while
those of younger ages are not so compulsorily
retirable.
In respect of election to provincial, city, or
municipal positions, to require that candidates
should not be more than 65 years of age at the
time they assume office, if applicable to everyone,
might or might not be a reasonable classification
although, as the Solicitor General has intimated, a
good policy of the law should be to promote the
emergence of younger blood in our political
elective echelons. On the other hand, it might be
that persons more than 65 years old may also be
good elective local officials.
Coming now to the case of retirees. Retirement
from government service may or may not be a
reasonable disqualification for elective local
officials. For one thing, there can also be retirees
from government service at ages, say below 65. It
may neither be reasonable to disqualify retirees,
aged 65, for a 65-year old retiree could be a good
local official just like one, aged 65, who is not a
retiree.
But, in the case of a 65-year old elective local
official, who has retired from a provincial, city or
municipal office, there is reason to disqualify him
from running for the same office from which he had
retired, as provided for in the challenged provision.
The need for new blood assumes relevance. The
tiredness of the retiree for government work is
present, and what is emphatically significant is that
the retired employee has already declared himself
tired an unavailable for the same government
work, but, which, by virtue of a change of mind, he
would like to assume again. It is for the very reason
that inequality will neither result from the
application of the challenged provision. Just as that
provision does not deny equal protection, neither
does it permit such denial (see People vs. Vera, 65
Phil. 56 [1933]). Persons similarly situated are similarly
treated.
In fine, it bears reiteration that the equal protection
clause does not forbid all legal classification. What
is proscribes is a classification which is arbitrary and
unreasonable. That constitutional guarantee is not
violated by a reasonable classification is germane
to the purpose of the law and applies to all those
belonging to the same class (Peralta vs. Comelec,
82 SCRA 30 [1978] citing Felwa vs. Salas, 18 SCRA
606 [1966]; Rafael v. Embroidery and Apparel
Control and Inspection Board, 21 SCRA 336 [1967];
Inchong, etc., et al. vs. Hernandez, 101 Phil. 1155
[1957]). The purpose of the law is to allow the
emergence of younger blood in local governments.
The classification in question being pursuant to that
purpose, it cannot be considered invalid "even if at
times, it may be susceptible to the objection that it
is marred by theoretical inconsistencies: (Chief
Justice Fernando, The Constitution of the
Philippines, 1977 ed., p. 547).
There is an additional consideration. Absent herein
is a showing of the clear invalidity of the questioned
35 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
provision. Well accepted is the rule that to justify the
nullification of a law, there must be a clear and
unequivocal breach of the Constitution, not a
doubtful and equivocal breach. Courts are
practically unanimous in the pronouncement that
laws shall not be declared invalid unless the conflict
with the Constitution is clear beyond reasonable
doubt (Peralta vs. COMELEC, 82 SCRA 55 [1978],
citing Cooper vs. Telfair, 4 Dall. 14; Dodd, Cases on
Constitutional Law, 3rd ed. 1942, 56). Lastly, it is
within the competence of the legislature to
prescribe qualifications for one who desires to
become a candidate for office provided they are
reasonable, as in this case.
In so far as the petition of Igot and Salapantan are
concerned, the second paragraph of section 4 of
Batas Pambansa Blg. 52, quoted in full earlier, and
which they challenged, may be divided in two
parts. The first provides:
"a judgment of conviction for any of the
aforementioned crimes shall be conclusive
evidence of such fact. . . . "
The supremacy of the Constitution stands out as the
cardinal principle. We are aware of the
presumption of validity that attached to a
challenged statute, of the well-settled principle that
"all reasonable doubts should be resolved in favor
of constitutionality," and that Courts will not set
aside a statute as constitutionally defective "except
in a clear case." (People vs. Vera, supra). We are
constrained to hold that this in one such clear case.
Cdphil
Explicit is the constitutional provision that, in all
criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and
shall enjoy the right to be heard by himself and
counsel (Article IV, section 19, 1973 Constitution). An
accusation, according to the fundamental law, is
not synonymous with guilt. The challenged proviso
contravenes the constitutional presumption of
innocence, as a candidate is disqualified from
running from public office on the ground alone that
charges have been filed against him before a civil
or military tribunal. It condemns before one is fully
heard. In ultimate effect, except as to the degree
of proof, no distinction is made between a person
convicted of acts of disloyalty and one against
whom charges have been filed for such acts, as
both of them would be ineligible to run for public
office. A person disqualified to run for public office
on the ground that charges have been filed
against him is virtually placed in the same category
as a person already convicted of a crime with the
penalty of arresto, which carries with it the
accessory penalty of suspension of the right to hold
office during the term of the sentence (Art. 44,
Revised Penal Code).
And although the filing of charges is considered as
but prima facie evidence, and therefore, may be
rebutted, yet, there is "clear and present danger"
that because the proximity of the elections, time
constraints will prevent one charged with acts of
disloyalty from offering contrary proof to overcome
the prima facie evidence against him.
Additionally, it is best that evidence pro and con of
acts of disloyalty be aired before the Courts rather
than before an administrative body such as the
COMELEC. A highly possible conflict of finding
between two government bodies, to the extreme
detriment of a person charged, will thereby be
avoided. Furthermore, a legislative/administrative
determination of guilt should not be allowed to be
substituted for a judicial determination.
Being infected with constitutional infirmity, a partial
declaration of nullity of only that objectionable
portion is mandated. It is separable from the first
portion of the second paragraph of section 4 of
Batas Pambansa Blg. 52 which can stand by itself.
WHEREFORE, 1) the first paragraph of section 4 of
Batas Pambansa Bilang 52 is hereby declared valid.
Said paragraph reads:
"SEC. 4. Special disqualification. In addition to
violation of Section 10 of Article XII(C) of the
Constitution and disqualifications mentioned in
existing laws which are hereby declared as
disqualifications for any of the elective officials
enumerated in Section 1 hereof, any retired
elective provincial, city or municipal official, who
has received payment of the retirement benefits to
which he is entitled under the law and who shall
have been 65 years of age at the commencement
of the term of office to which he seeks to be
elected, shall not be qualified to run for the same
elective local office from which he has retired."
2) That portion of the second paragraph of section
4 of Batas Pambansa Bilang 52 providing that ". . .
the filing of charges for the commission of such
crimes before a civil court or military tribunal after
preliminary investigation shall be prima facie
evidence of such fact", is hereby declared null and
void, for being violative of the constitutional
presumption of innocence guaranteed to an
accused.
SO ORDERED.
Makasiar, Antonio, Concepcion Jr., Fernandez and
Guerrero, JJ ., concur.
De Castro, J ., abstain as far as petitioner Dumlao is
concerned.
(Philippine Ass'n. of Service Exporters, Inc. v. Drilon,
G.R. No. 81958, June 30, 1988)
ALREADY READ IN POLICE POWER
EN BANC
[G.R. No. 81958. June 30, 1988.]
PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS,
INC., petitioner, vs. HON. FRANKLIN M. DRILON as
Secretary of Labor and Employment, and TOMAS D.
ACHACOSO, as Administrator of the Philippine
Overseas Employment Administration, respondents.
Gutierrez & Alo Law Offices for petitioner.
36 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
(International School Alliance of Educators v.
Quisumbing, G.R. No. 128845, June 01, 2000)
FIRST DIVISION
[G.R. No. 128845. June 1, 2000.]
INTERNATIONAL SCHOOL ALLIANCE OF EDUCATORS
(ISAE), petitioner, vs. HON. LEONARDO A.
QUISUMBING in his capacity as the Secretary of
Labor and Employment; HON. CRESENCIANO B.
TRAJANO in his capacity as the Acting Secretary of
Labor and Employment; DR. BRIAN MACCAULEY in
his capacity as the Superintendent of International
School-Manila; and INTERNATIONAL SCHOOL, INC.,
respondents.
Azcuna Yorac Sarmiento Arroyo & Chua Law
Offices for petitioner.
The Solicitor General for public respondent.
Bernas Law Office for private respondent.
SYNOPSIS
Private respondent International School, Inc. is a
domestic educational institution established
primarily for dependents of foreign diplomatic
personnel and other temporary residents. It hires
both foreign and local teachers as members of its
faculty classifying them as foreign-hires and local-
hires. It grants foreign-hires certain benefits as
housing, transportation, shipping costs, taxes and
home leave travel allowance which are not
accorded to local-hires. Foreign-hires are also paid
a salary rate of twenty-five percent (25%) more
than the local-hires. The school justified the
difference on two "significant economic
disadvantages" foreign-hires have to endure,
namely: (a) the "dislocation factor" and (b) limited
tenure. When negotiations for a new collective
bargaining agreement were held in June 1995,
petitioner International School Alliance of Educators
(ISAE) as a legitimate labor union and the collective
bargaining representative of all the faculty
members of the school contested the difference in
salary rates between foreign and local hires. This
issue, as well as the question of whether foreign-
hires should be included in the appropriate
bargaining unit, eventually caused a deadlock
between the parties. The Department of Labor and
Employment (DOLE) assumed jurisdiction over the
dispute. It subsequently issued an Order resolving
the issues in favor of the school. The motion for
reconsideration of ISAE was also denied. Hence, this
petition.
The Court ruled that the point-of-hire classification
employed by respondent School to justify the
distinction in the salary rates of foreign-hires and
local-hires was an invalid classification. There is no
reasonable distinction between the services
rendered by foreign-hires and local-hires. The
practice of the School of according higher salaries
to foreign-hires contravenes public policy and,
certainly, does not deserve the sympathy of the
Court.
The Court agreed, however, that foreign-hires do
not belong to the same bargaining unit as the
local-hires. The basic test of an asserted bargaining
unit's acceptability is whether or not it is
fundamentally the combination which will best
assure to all employees the exercise of their
collective bargaining rights. It does not appear that
foreign-hires have indicated their intention to be
grouped together with local-hires for purposes of
collective bargaining. The collective bargaining
history in the School also showed that these groups
were always treated separately. Foreign-hires have
limited tenure; local-hires enjoy security of tenure.
Although foreign-hires perform similar functions
under the same working conditions as the local-
hires, foreign-hires are accorded certain benefits
not granted to local-hires. These benefits, such as
housing, transportation, shipping costs, taxes, and
home leave travel allowance, are reasonably
related to their status as foreign-hires, and justified
the exclusion of the former from the latter. To
include foreign-hires in a bargaining unit with local-
hires would not assure either group the exercise of
their respective collective bargaining rights. The
orders of the Secretary of Labor were reversed and
set aside insofar as they upheld the practice of
respondent School of according foreign-hires
higher salaries than local-hires.
SYLLABUS
1. POLITICAL LAW; CONSTITUTIONAL LAW; PUBLIC
POLICY ABHORS INEQUALITY AND DISCRIMINATION.
That public policy abhors inequality and
discrimination is beyond contention. Our
Constitution and laws reflect the policy against
these evils. The Constitution in the Article on Social
Justice and Human Rights exhorts Congress to "give
highest priority to the enactment of measures that
protect and enhance the right of all people to
human dignity, reduce social, economic, and
political inequalities." The very broad Article 19 of
the Civil Code requires every person, "in the
exercise of his rights and in the performance of this
duties, [to] act with justice, give everyone his due,
and observe honesty and good faith."
2. INTERNATIONAL LAW; SPRINGS FROM GENERAL
PRINCIPLES OF LAW WHICH PROSCRIBE
DISCRIMINATION. International law, which springs
from general principles of law, likewise proscribes
discrimination. General principles of law include
principles of equity, i.e., the general principles of
fairness and justice, based on the test of what is
reasonable. The Universal Declaration of Human
Rights, the International Covenant on Economic,
Social, and Cultural Rights, the International
Convention on the Elimination of All Forms of Racial
Discrimination, the Convention against
Discrimination in Education, the Convention (No.
111) Concerning Discrimination in Respect of
Employment and Occupation all embody the
general principle against discrimination, the very
antithesis of fairness and justice. The Philippines,
through its Constitution, has incorporated this
principle as part of its national laws.
3. POLITICAL LAW; CONSTITUTIONAL LAW; SOCIAL
JUSTICE AND HUMAN RIGHTS; LABOR; HUMANE
CONDITIONS OF WORK INCLUDES THE MANNER BY
WHICH EMPLOYERS TREAT THEIR EMPLOYEES. The
Constitution specifically provides that labor is
entitled to "humane conditions of work." These
37 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
conditions are not restricted to the physical
workplace the factory, the office or the field
but include as well the manner by which employers
treat their employees.
4. LABOR AND SOCIAL LEGISLATION; LABOR CODE;
THE STATE SHALL ENSURE EQUAL WORK
OPPORTUNITIES REGARDLESS OF SEX, RACE OR
CREED. The Constitution also directs the State to
promote "equality of employment opportunities for
all." Similarly, the Labor Code provides that the
State shall "ensure equal work opportunities
regardless of sex, race or creed." It would be an
affront to both the spirit and letter of these
provisions if the State, in spite of its primordial
obligation to promote and ensure equal
employment opportunities, closes its eyes to
unequal and discriminatory terms and conditions of
employment.
5. ID.; ID.; PROHIBITS DISCRIMINATION IN TERMS OF
WAGES. Discrimination, particularly in terms of
wages, is frowned upon by the Labor Code. Article
135, for example, prohibits and penalizes the
payment of lesser compensation to a female
employee as against a male employee for work of
equal value. Article 248 declares it an unfair labor
practice for an employer to discriminate in regard
to wages in order to encourage or discourage
membership in any labor organization.
6. INTERNATIONAL LAW; INTERNATIONAL COVENANT
ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS;
INSTITUTIONALIZED THE LONG HONORED LEGAL
TRUISM OF "EQUAL PAY FOR EQUAL WORK." [T]he
International Covenant on Economic, Social, and
Cultural Rights, in Article 7 thereof, provides: The
States Parties to the present Covenant recognize
the right of everyone to the enjoyment of just and
favourable conditions of work, which ensure, in
particular: a. Remuneration which provides all
workers, as a minimum, with: i. Fair wages and
equal remuneration for work of equal value without
distinction of any kind, in particular women being
guaranteed conditions of work not inferior to those
enjoyed by men, with equal pay for equal work; . . .
. The foregoing provisions impregnably
institutionalize in this jurisdiction the long honored
legal truism of "equal pay for equal work." Persons
who work with substantially equal qualifications, skill,
effort and responsibility, under similar conditions,
should be paid similar salaries.
7. LABOR AND SOCIAL LEGISLATION; LABOR CODE;
CONDITIONS OF EMPLOYMENT; EQUAL WORK FOR
EQUAL PAY; APPLIED IN CASE AT BAR. This rule
applies to the School, its "international character"
notwithstanding. The School contends that
petitioner has not adduced evidence that local-
hires perform work equal to that of foreign-hires. The
Court finds this argument a little cavalier. If an
employer accords employees the same position
and rank, the presumption is that these employees
perform equal work. This presumption is borne by
logic and human experience. If the employer pays
one employee less than the rest, it is not for that
employee to explain why he receives less or why
the others receive more. That would be adding
insult to injury. The employer has discriminated
against that employee; it is for the employer to
explain why the employee is treated unfairly. The
employer in this case has failed to discharge this
burden. There is no evidence here that foreign-hires
perform 25% more efficiently or effectively than the
local-hires. Both groups have similar functions and
responsibilities, which they perform under similar
working conditions. The School cannot invoke the
need to entice foreign-hires to leave their domicile
to rationalize the distinction in salary rates without
violating the principle of equal work for equal pay.
8. ID.; ID.; ID.; SALARY; DEFINED. "Salary" is defined
in Black's Law Dictionary (5th ed.) as "a reward or
recompense for services performed." Similarly, the
Philippine Legal Encyclopedia states that "salary" is
the "[c]onsideration paid at regular intervals for the
rendering of services." In Songco v. National Labor
Relations Commission, we said that: "salary" means
a recompense or consideration made to a person
for his pains or industry in another man's business.
Whether it be derived from "salarium," or more
fancifully from "sal," the pay of the Roman soldier, it
carries with it the fundamental idea of
compensation for services rendered.
9. ID.; ID.; ID.; ID.; "DISLOCATION FACTOR" AND
FOREIGN HIRES' LIMITED TENURE CANNOT SERVE AS
VALID BASES FOR DISTINCTION IN SALARY RATES.
While we recognize the need of the School to
attract foreign-hires, salaries should not be used as
an enticement to the prejudice of local-hires. The
local-hires perform the same services as foreign-
hires and they ought to be paid the same salaries
as the latter. For the same reason, the "dislocation
factor" and the foreign-hires' limited tenure also
cannot serve as valid bases for the distinction in
salary rates. The dislocation factor and limited
tenure affecting foreign-hires are adequately
compensated by certain benefits accorded them
which are not enjoyed by local-hires, such as
housing, transportation, shipping costs, taxes and
home leave travel allowances.
10. ID.; ID.; THE STATE HAS THE RIGHT AND DUTY TO
REGULATE THE RELATIONS BETWEEN LABOR AND
CAPITAL. The Constitution enjoins the State to
"protect the rights of workers and promote their
welfare," "to afford labor full protection." The State,
therefore, has the right and duty to regulate the
relations between labor and capital. These relations
are not merely contractual but are so impressed
with public interest that labor contracts, collective
bargaining agreements included, must yield to the
common good. Should such contracts contain
stipulations that are contrary to public policy, courts
will not hesitate to strike down these stipulations.
11. ID.; ID.; CONDITIONS OF EMPLOYMENT; POINT-
OF-HIRE CLASSIFICATION TO JUSTIFY THE
DISTINCTION IN THE SALARY RATES OF FOREIGN-
HIRES AND LOCAL-HIRES IS AN INVALID
CLASSIFICATION. [W]e find the point-of-hire
classification employed by respondent School to
justify the distinction in the salary rates of foreign-
hires and local-hires to be an invalid classification.
There is no reasonable distinction between the
38 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
services rendered by foreign-hires and local-hires.
The practice of the School of according higher
salaries to foreign-hires contravenes public policy
and, certainly, does not deserve the sympathy of
this Court.
12. ID.; ID.; LABOR RELATIONS; COLLECTIVE
BARGAINING UNIT; ELUCIDATED. A bargaining
unit is "a group of employees of a given employer,
comprised of all or less than all of the entire body of
employees, consistent with equity to the employer,
indicate to be the best suited to serve the
reciprocal rights and duties of the parties under the
collective bargaining provisions of the law." The
factors in determining the appropriate collective
bargaining unit are (1) the will of the employees
(Globe Doctrine); (2) affinity and unity of the
employees' interest, such as substantial similarity of
work and duties, or similarity of compensation and
working conditions (Substantial Mutual Interests
Rule); (3) prior collective bargaining history; and (4)
similarity of employment status. The basic test of an
asserted bargaining unit's acceptability is whether
or not it is fundamentally the combination which will
best assure to all employees the exercise of their
collective bargaining rights. cADEHI
13. ID.; ID.; ID.; ID.; FOREIGN-HIRES SHOULD NOT
BELONG TO THE SAME BARGAINING UNIT AS LOCAL-
HIRES. We agree, however, that foreign-hires do
not belong to the same bargaining unit as the
local-hires. . . . It does not appear that foreign-hires
have indicated their intention to be grouped
together with local-hires for purposes of collective
bargaining. The collective bargaining history in the
School also shows that these groups were always
treated separately. Foreign-hires have limited
tenure; local-hires enjoy security of tenure. Although
foreign-hires perform similar functions under the
same working conditions as the local-hires, foreign-
hires are accorded certain benefits not granted to
local-hires. These benefits, such as housing,
transportation, shipping costs, taxes, and home
leave travel allowance, are reasonably related to
their status as foreign-hires, and justify the exclusion
of the former from the latter. To include foreign-hires
in a bargaining unit with local-hires would not
assure either group the exercise of their respective
collective bargaining rights.
DECISION
KAPUNAN, J p:
Receiving salaries less than their counterparts hired
abroad, the local-hires of private respondent
School, mostly Filipinos, cry discrimination. We
agree. That the local-hires are paid more than their
colleagues in other schools is, of course, beside the
point. The point is that employees should be given
equal pay for work of equal value. That is a
principle long honored in this jurisdiction. That is a
principle that rests on fundamental notions of
justice. That is the principle we uphold today.
Private respondent International School, Inc. (the
School, for short), pursuant to Presidential Decree
732, is a domestic educational institution
established primarily for dependents of foreign
diplomatic personnel and other temporary
residents. 1 To enable the School to continue
carrying out its educational program and improve
its standard of instruction, Section 2(c) of the same
decree authorizes the School to
employ its own teaching and management
personnel selected by it either locally or abroad,
from Philippine or other nationalities, such personnel
being exempt from otherwise applicable laws and
regulations attending their employment, except
laws that have been or will be enacted for the
protection of employees.
Accordingly, the School hires both foreign and local
teachers as members of its faculty, classifying the
same into two: (1) foreign-hires and (2) local-hires.
The School employs four tests to determine whether
a faculty member should be classified as a foreign-
hire or a local hire:
a. What is one's domicile?
b. Where is one's home economy?
c. To which country does one owe economic
allegiance?
d. Was the individual hired abroad specifically to
work in the School and was the School responsible
for bringing that individual to the Philippines? 2
Should the answer to any of these queries point to
the Philippines, the faculty member is classified as a
local hire; otherwise, he or she is deemed a foreign-
hire. llcd
The School grants foreign-hires certain benefits not
accorded local-hires. These include housing,
transportation, shipping costs, taxes, and home
leave travel allowance. Foreign-hires are also paid
a salary rate twenty-five percent (25%) more than
local-hires. The School justifies the difference on two
"significant economic disadvantages" foreign-hires
have to endure, namely: (a) the "dislocation factor"
and (b) limited tenure. The School explains:
A foreign-hire would necessarily have to uproot
himself from his home country, leave his family and
friends, and take the risk of deviating from a
promising career path all for the purpose of
pursuing his profession as an educator, but this time
in a foreign land. The new foreign hire is faced with
economic realities: decent abode for oneself
and/or for one's family, effective means of
transportation, allowance for the education of
one's children, adequate insurance against illness
and death, and of course the primary benefit of a
basic salary/retirement compensation.
Because of a limited tenure, the foreign hire is
confronted again with the same economic reality
after his term: that he will eventually and inevitably
return to his home country where he will have to
confront the uncertainty of obtaining suitable
employment after a long period in a foreign land.
The compensation scheme is simply the School's
adaptive measure to remain competitive on an
international level in terms of attracting competent
39 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
professionals in the field of international education.
3
When negotiations for a new collective bargaining
agreement were held on June 1995, petitioner
International School Alliance of Educators, "a
legitimate labor union and the collective
bargaining representative of all faculty members" 4
of the School, contested the difference in salary
rates between foreign and local-hires. This issue, as
well as the question of whether foreign-hires should
be included in the appropriate bargaining unit,
eventually caused a deadlock between the
parties.
On September 7, 1995, petitioner filed a notice of
strike. The failure of the National Conciliation and
Mediation Board to bring the parties to a
compromise prompted the Department of Labor
and Employment (DOLE) to assume jurisdiction over
the dispute. On June 10, 1996, the DOLE Acting
Secretary, Cresenciano B. Trajano, issued an Order
resolving the parity and representation issues in
favor of the School. Then DOLE Secretary Leonardo
A. Quisumbing subsequently denied petitioner's
motion for reconsideration in an Order dated
March 19, 1997. Petitioner now seeks relief in this
Court.
Petitioner claims that the point-of-hire classification
employed by the School is discriminatory to Filipinos
and that the grant of higher salaries to foreign-hires
constitutes racial discrimination.
The School disputes these claims and gives a
breakdown of its faculty members, numbering 38 in
all, with nationalities other than Filipino, who have
been hired locally and classified as local hires. 5 The
Acting Secretary of Labor found that these non-
Filipino local-hires received the same benefits as the
Filipino local-hires:
The compensation package given to local-hires has
been shown to apply to all, regardless of race. Truth
to tell, there are foreigners who have been hired
locally and who are paid equally as Filipino local
hires. 6
The Acting Secretary upheld the point-of-hire
classification for the distinction in salary rates:
The principle "equal pay for equal work" does not
find application in the present case. The
international character of the School requires the
hiring of foreign personnel to deal with different
nationalities and different cultures, among the
student population.
We also take cognizance of the existence of a
system of salaries and benefits accorded to foreign
hired personnel which system is universally
recognized. We agree that certain amenities have
to be provided to these people in order to entice
them to render their services in the Philippines and
in the process remain competitive in the
international market.
Furthermore, we took note of the fact that foreign
hires have limited contract of employment unlike
the local hires who enjoy security of tenure. To
apply parity therefore, in wages and other benefits
would also require parity in other terms and
conditions of employment which include the
employment contract. cda
A perusal of the parties' 1992-1995 CBA points us to
the conditions and provisions for salary and
professional compensation wherein the parties
agree as follows:
All members of the bargaining unit shall be
compensated only in accordance with Appendix C
hereof provided that the Superintendent of the
School has the discretion to recruit and hire
expatriate teachers from abroad, under terms and
conditions that are consistent with accepted
international practice.
Appendix C of said CBA further provides:
The new salary schedule is deemed at equity with
the Overseas Recruited Staff (OSRS) salary
schedule. The 25% differential is reflective of the
agreed value of system displacement and
contracted status of the OSRS as differentiated from
the tenured status of Locally Recruited Staff (LRS).
To our mind, these provisions demonstrate the
parties' recognition of the difference in the status of
two types of employees, hence, the difference in
their salaries.
The Union cannot also invoke the equal protection
clause to justify its claim of parity. It is an established
principle of constitutional law that the guarantee of
equal protection of the laws is not violated by
legislation or private covenants based on
reasonable classification. A classification is
reasonable if it is based on substantial distinctions
and apply to all members of the same class. Verily,
there is a substantial distinction between foreign
hires and local hires, the former enjoying only a
limited tenure, having no amenities of their own in
the Philippines and have to be given a good
compensation package in order to attract them to
join the teaching faculty of the School. 7
We cannot agree.
That public policy abhors inequality and
discrimination is beyond contention. Our
Constitution and laws reflect the policy against
these evils. The Constitution 8 in the Article on Social
Justice and Human Rights exhorts Congress to "give
highest priority to the enactment of measures that
protect and enhance the right of all people to
human dignity, reduce social, economic, and
political inequalities." The very broad Article 19 of
the Civil Code requires every person, "in the
exercise of his rights and in the performance of his
duties, [to] act with justice, give everyone his due,
and observe honesty and good faith."
International law, which springs from general
principles of law, 9 likewise proscribes discrimination.
40 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
General principles of law include principles of
equity, 10 i.e., the general principles of fairness and
justice, based on the test of what is reasonable. 11
The Universal Declaration of Human Rights, 12 the
International Covenant on Economic, Social and
Cultural Rights, 13 the International Convention on
the Elimination of All Forms of Racial Discrimination,
14 the Convention against Discrimination in
Education, 15 the Convention (No. 111) Concerning
Discrimination in Respect of Employment and
Occupation 16 all embody the general principle
against discrimination, the very antithesis of fairness
and justice. The Philippines, through its Constitution,
has incorporated this principle as part of its national
laws.
In the workplace, where the relations between
capital and labor are often skewed in favor of
capital, inequality and discrimination by the
employer are all the more reprehensible.
The Constitution 17 specifically provides that labor is
entitled to "humane conditions of work." These
conditions are not restricted to the physical
workplace the factory, the office or the field
but include as well the manner by which employers
treat their employees.
The Constitution 18 also directs the State to
promote "equality of employment opportunities for
all." Similarly, the Labor Code 19 provides that the
State shall "ensure equal work opportunities
regardless of sex, race or creed." It would be an
affront to both the spirit and letter of these
provisions if the State, in spite of its primordial
obligation to promote and ensure equal
employment opportunities, closes its eyes to
unequal and discriminatory terms and conditions of
employment. 20
Discrimination, particularly in terms of wages, is
frowned upon by the Labor Code. Article 135, for
example, prohibits and penalizes 21 the payment of
lesser compensation to a female employee as
against a male employee for work of equal value.
Article 248 declares it an unfair labor practice for
an employer to discriminate in regard to wages in
order to encourage or discourage membership in
any labor organization.
Notably, the International Covenant on Economic,
Social, and Cultural Rights, supra, in Article 7
thereof, provides:
The States Parties to the present Covenant
recognize the right of everyone to the enjoyment of
just and favorable conditions of work, which ensure,
in particular:
a. Remuneration which provides all workers, as a
minimum, with:
i. Fair wages and equal remuneration for work of
equal value without distinction of any kind, in
particular women being guaranteed conditions of
work not inferior to those enjoyed by men, with
equal pay for equal work;
xxx xxx xxx
The foregoing provisions impregnably institutionalize
in this jurisdiction the long honored legal truism of
"equal pay for equal work." Persons who work with
substantially equal qualifications, skill, effort and
responsibility, under similar conditions, should be
paid similar salaries. 22 This rule applies to the
School, its "international character" notwithstanding.
The School contends that petitioner has not
adduced evidence that local-hires perform work
equal to that of foreign-hires. 23 The Court finds this
argument a little cavalier. If an employer accords
employees the same position and rank, the
presumption is that these employees perform equal
work. This presumption is borne by logic and human
experience. If the employer pays one employee
less than the rest, it is not for that employee to
explain why he receives less or why the others
receive more. That would be adding insult to injury.
The employer has discriminated against that
employee; it is for the employer to explain why the
employee is treated unfairly.
The employer in this case has failed to discharge
this burden. There is no evidence here that foreign-
hires perform 25% more efficiently or effectively
than the local-hires. Both groups have similar
functions and responsibilities, which they perform
under similar working conditions.
The School cannot invoke the need to entice
foreign-hires to leave their domicile to rationalize
the distinction in salary rates without violating the
principle of equal work for equal pay.
"Salary" is defined in Black's Law Dictionary (5th ed.)
as "a reward or recompense for services
performed." Similarly, the Philippine Legal
Encyclopedia states that "salary" is the
"[c]onsideration paid at regular intervals for the
rendering of services." In Songco v. National Labor
Relations Commission, 24 we said that:
"salary" means a recompense or consideration
made to a person for his pains or industry in another
man's business. Whether it be derived from
"salarium," or more fancifully from "sal," the pay of
the Roman soldier, it carries with it the fundamental
idea of compensation for services rendered.
(Emphasis supplied.)
While we recognize the need of the School to
attract foreign-hires, salaries should not be used as
an enticement to the prejudice of local-hires. The
local-hires perform the same services as foreign-
hires and they ought to be paid the same salaries
as the latter. For the same reason, the "dislocation
factor" and the foreign-hires' limited tenure also
cannot serve as valid bases for the distinction in
salary rates. The dislocation factor and limited
tenure affecting foreign-hires are adequately
compensated by certain benefits accorded them
which are not enjoyed by local-hires, such as
housing, transportation, shipping costs, taxes and
home leave travel allowances.
41 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
The Constitution enjoins the State to "protect the
rights of workers and promote their welfare," 25 "to
afford labor full protection." 26 The State, therefore,
has the right and duty to regulate the relations
between labor and capital. 27 These relations are
not merely contractual but are so impressed with
public interest that labor contracts, collective
bargaining agreements included, must yield to the
common good. 28 Should such contracts contain
stipulations that are contrary to public policy, courts
will not hesitate to strike down these stipulations.
In this case, we find the point-of-hire classification
employed by respondent School to justify the
distinction in the salary rates of foreign-hires and
local hires to be an invalid classification. There is no
reasonable distinction between the services
rendered by foreign-hires and local-hires. The
practice of the School of according higher salaries
to foreign-hires contravenes public policy and,
certainly, does not deserve the sympathy of this
Court.
We agree, however, that foreign-hires do not
belong to the same bargaining unit as the local-
hires. LLjur
A bargaining unit is "a group of employees of a
given employer, comprised of all or less than all of
the entire body of employees, consistent with
equity to the employer indicate to be the best
suited to serve the reciprocal rights and duties of
the parties under the collective bargaining
provisions of the law." 29 The factors in determining
the appropriate collective bargaining unit are (1)
the will of the employees (Globe Doctrine); (2)
affinity and unity of the employees' interest, such as
substantial similarity of work and duties, or similarity
of compensation and working conditions
(Substantial Mutual Interests Rule); (3) prior
collective bargaining history; and (4) similarity of
employment status. 30 The basic test of an asserted
bargaining unit's acceptability is whether or not it is
fundamentally the combination which will best
assure to all employees the exercise of their
collective bargaining rights. 31
It does not appear that foreign-hires have
indicated their intention to be grouped together
with local-hires for purposes of collective
bargaining. The collective bargaining history in the
School also shows that these groups were always
treated separately. Foreign-hires have limited
tenure; local-hires enjoy security of tenure. Although
foreign-hires perform similar functions under the
same working conditions as the local-hires, foreign-
hires are accorded certain benefits not granted to
local-hires. These benefits, such as housing,
transportation, shipping costs, taxes, and home
leave travel allowance, are reasonably related to
their status as foreign-hires, and justify the exclusion
of the former from the latter. To include foreign-hires
in a bargaining unit with local-hires would not
assure either group the exercise of their respective
collective bargaining rights.
WHEREFORE, the petition is GIVEN DUE COURSE. The
petition is hereby GRANTED IN PART. The Orders of
the Secretary of Labor and Employment dated
June 10, 1996 and March 19, 1997, are hereby
REVERSED and SET ASIDE insofar as they uphold the
practice of respondent School of according
foreign-hires higher salaries than local hires.
SO ORDERED.
Puno and Pardo, JJ., concur.
Davide, Jr., C.J., is on official leave.
Ynares-Santiago, J., is on leave.
(Garcia v. Drilon, G.R. No. 179267, June 25, 2013)
EN BANC
[G.R. No. 179267. June 25, 2013.]
JESUS C. GARCIA, petitioner, vs. THE HONORABLE
RAY ALAN T. DRILON, Presiding Judge, Regional Trial
Court-Branch 41, Bacolod City, and ROSALIE JAYPE-
GARCIA, for herself and in behalf of minor children,
namely: JO-ANN, JOSEPH EDUARD, JESSE ANTHONE,
all surnamed GARCIA, respondents.
DECISION
PERLAS-BERNABE, J p:
Hailed as the bastion of Christianity in Asia, the
Philippines boasts of 86.8 million Filipinos or 93
percent of a total population of 93.3 million
adhering to the teachings of Jesus Christ. 1 Yet, the
admonition for husbands to love their wives as their
own bodies just as Christ loved the church and
gave himself up for her 2 failed to prevent, or even
to curb, the pervasiveness of violence against
Filipino women. The National Commission on the
Role of Filipino Women (NCRFW) reported that, for
the years 2000-2003, "female violence comprised
more than 90% of all forms of abuse and violence
and more than 90% of these reported cases were
committed by the women's intimate partners such
as their husbands and live-in partners." 3
Thus, on March 8, 2004, after nine (9) years of
spirited advocacy by women's groups, Congress
enacted Republic Act (R.A.) No. 9262, entitled "An
Act Defining Violence Against Women and Their
Children, Providing for Protective Measures for
Victims, Prescribing Penalties Therefor, and for Other
Purposes." It took effect on March 27, 2004. 4
aHDTAI
R.A. 9262 is a landmark legislation that defines and
criminalizes acts of violence against women and
their children (VAWC) perpetrated by women's
intimate partners, i.e., husband; former husband; or
any person who has or had a sexual or dating
relationship, or with whom the woman has a
common child. 5 The law provides for protection
orders from the barangay and the courts to prevent
the commission of further acts of VAWC; and
outlines the duties and responsibilities of barangay
officials, law enforcers, prosecutors and court
personnel, social workers, health care providers,
and other local government officials in responding
to complaints of VAWC or requests for assistance.
A husband is now before the Court assailing the
constitutionality of R.A. 9262 as being violative of
the equal protection and due process clauses, and
42 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
an undue delegation of judicial power to barangay
officials.
The Factual Antecedents
On March 23, 2006, Rosalie Jaype-Garcia (private
respondent) filed, for herself and in behalf of her
minor children, a verified petition 6 (Civil Case No.
06-797) before the Regional Trial Court (RTC) of
Bacolod City for the issuance of a Temporary
Protection Order (TPO) against her husband, Jesus
C. Garcia (petitioner), pursuant to R.A. 9262. She
claimed to be a victim of physical abuse;
emotional, psychological, and economic violence
as a result of marital infidelity on the part of
petitioner, with threats of deprivation of custody of
her children and of financial support. 7
Private respondent's claims
Private respondent married petitioner in 2002 when
she was 34 years old and the former was eleven
years her senior. They have three (3) children,
namely: Jo-Ann J. Garcia, 17 years old, who is the
natural child of petitioner but whom private
respondent adopted; Jessie Anthone J. Garcia, 6
years old; and Joseph Eduard J. Garcia, 3 years old.
8
Private respondent described herself as a dutiful
and faithful wife, whose life revolved around her
husband. On the other hand, petitioner, who is of
Filipino-Chinese descent, is dominant, controlling,
and demands absolute obedience from his wife
and children. He forbade private respondent to
pray, and deliberately isolated her from her friends.
When she took up law, and even when she was
already working part time at a law office, petitioner
trivialized her ambitions and prevailed upon her to
just stay at home. He was often jealous of the fact
that his attractive wife still catches the eye of some
men, at one point threatening that he would have
any man eyeing her killed. 9
Things turned for the worse when petitioner took up
an affair with a bank manager of Robinson's Bank,
Bacolod City, who is the godmother of one of their
sons. Petitioner admitted to the affair when private
respondent confronted him about it in 2004. He
even boasted to the household help about his
sexual relations with said bank manager. Petitioner
told private respondent, though, that he was just
using the woman because of their accounts with
the bank. 10 EHTIcD
Petitioner's infidelity spawned a series of fights that
left private respondent physically and emotionally
wounded. In one of their quarrels, petitioner
grabbed private respondent on both arms and
shook her with such force that caused bruises and
hematoma. At another time, petitioner hit private
respondent forcefully on the lips that caused some
bleeding. Petitioner sometimes turned his ire on their
daughter, Jo-Ann, who had seen the text messages
he sent to his paramour and whom he blamed for
squealing on him. He beat Jo-Ann on the chest and
slapped her many times. When private respondent
decided to leave petitioner, Jo-Ann begged her
mother to stay for fear that if the latter leaves,
petitioner would beat her up. Even the small boys
are aware of private respondent's sufferings. Their 6-
year-old son said that when he grows up, he would
beat up his father because of his cruelty to private
respondent. 11
All the emotional and psychological turmoil drove
private respondent to the brink of despair. On
December 17, 2005, while at home, she attempted
suicide by cutting her wrist. She was found by her
son bleeding on the floor. Petitioner simply fled the
house instead of taking her to the hospital. Private
respondent was hospitalized for about seven (7)
days in which time petitioner never bothered to
visit, nor apologized or showed pity on her. Since
then, private respondent has been undergoing
therapy almost every week and is taking anti-
depressant medications. 12
When private respondent informed the
management of Robinson's Bank that she intends to
file charges against the bank manager, petitioner
got angry with her for jeopardizing the manager's
job. He then packed his things and told private
respondent that he was leaving her for good. He
even told private respondent's mother, who lives
with them in the family home, that private
respondent should just accept his extramarital affair
since he is not cohabiting with his paramour and
has not sired a child with her. 13
Private respondent is determined to separate from
petitioner but she is afraid that he would take her
children from her and deprive her of financial
support. Petitioner had previously warned her that if
she goes on a legal battle with him, she would not
get a single centavo. 14
Petitioner controls the family businesses involving
mostly the construction of deep wells. He is the
President of three corporations 326 Realty
Holdings, Inc., Negros Rotadrill Corporation, and J-
Bros Trading Corporation of which he and private
respondent are both stockholders. In contrast to the
absolute control of petitioner over said
corporations, private respondent merely draws a
monthly salary of P20,000.00 from one corporation
only, the Negros Rotadrill Corporation. Household
expenses amounting to not less than P200,000.00 a
month are paid for by private respondent through
the use of credit cards, which, in turn, are paid by
the same corporation together with the bills for
utilities. 15 cDCIHT
On the other hand, petitioner receives a monthly
salary of P60,000.00 from Negros Rotadrill
Corporation, and enjoys unlimited cash advances
and other benefits in hundreds of thousands of
pesos from the corporations. 16 After private
respondent confronted him about the affair,
petitioner forbade her to hold office at JBTC
Building, Mandalagan, where all the businesses of
the corporations are conducted, thereby depriving
her of access to full information about said
businesses. Until the filing of the petition a quo,
petitioner has not given private respondent an
accounting of the businesses the value of which
she had helped raise to millions of pesos. 17
43 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
Action of the RTC of Bacolod City
Finding reasonable ground to believe that an
imminent danger of violence against the private
respondent and her children exists or is about to
recur, the RTC issued a TPO 18 on March 24, 2006
effective for thirty (30) days, which is quoted
hereunder:
Respondent (petitioner herein), Jesus Chua Garcia,
is hereby:
a)Ordered to remove all his personal belongings
from the conjugal dwelling or family home within 24
hours from receipt of the Temporary Restraining
Order and if he refuses, ordering that he be
removed by police officers from the conjugal
dwelling; this order is enforceable notwithstanding
that the house is under the name of 236 Realty
Holdings, Inc. (Republic Act No. 9262 states
"regardless of ownership"), this is to allow the
Petitioner (private respondent herein) to enter the
conjugal dwelling without any danger from the
Respondent. IcADSE
After the Respondent leaves or is removed from the
conjugal dwelling, or anytime the Petitioner
decides to return to the conjugal dwelling to
remove things, the Petitioner shall be assisted by
police officers when re-entering the family home.
The Chief of Police shall also give the Petitioner
police assistance on Sunday, 26 March 2006
because of the danger that the Respondent will
attempt to take her children from her when he
arrives from Manila and finds out about this suit.
b)To stay away from the petitioner and her children,
mother and all her household help and driver from
a distance of 1,000 meters, and shall not enter the
gate of the subdivision where the Petitioner may be
temporarily residing.
c)Not to harass, annoy, telephone, contact or
otherwise communicate with the Petitioner, directly
or indirectly, or through other persons, or contact
directly or indirectly her children, mother and
household help, nor send gifts, cards, flowers, letters
and the like. Visitation rights to the children may be
subject of a modified TPO in the future.
d)To surrender all his firearms including a .9MM
caliber firearm and a Walther PPK and ordering the
Philippine National Police Firearms and Explosives
Unit and the Provincial Director of the PNP to
cancel all the Respondent's firearm licenses. He
should also be ordered to surrender any unlicensed
firearms in his possession or control.
e)To pay full financial support for the Petitioner and
the children, including rental of a house for them,
and educational and medical expenses.
f)Not to dissipate the conjugal business. aCTHEA
g)To render an accounting of all advances,
benefits, bonuses and other cash he received from
all the corporations from 1 January 2006 up to 31
March 2006, which himself and as President of the
corporations and his Comptroller, must submit to
the Court not later than 2 April 2006. Thereafter, an
accounting of all these funds shall be reported to
the court by the Comptroller, copy furnished to the
Petitioner, every 15 days of the month, under pain
of Indirect Contempt of Court.
h)To ensure compliance especially with the order
granting support pendente lite, and considering the
financial resources of the Respondent and his
threat that if the Petitioner sues she will not get a
single centavo, the Respondent is ordered to put
up a BOND TO KEEP THE PEACE in the amount of
FIVE MILLION PESOS, in two sufficient sureties.
On April 24, 2006, upon motion 19 of private
respondent, the trial court issued an amended TPO,
20 effective for thirty (30) days, which included the
following additional provisions:
i)The petitioners (private respondents herein) are
given the continued use of the Nissan Patrol and
the Starex Van which they are using in Negros
Occidental.
j)The petitioners are given the continued use and
occupation of the house in Paraaque, the
continued use of the Starex van in Metro Manila,
whenever they go to Manila.
k)Respondent is ordered to immediately post a
bond to keep the peace, in two sufficient sureties.
l)To give monthly support to the petitioner
provisionally fixed in the sum of One Hundred Fifty
Thousand Pesos (Php150,000.00) per month plus
rental expenses of Fifty Thousand Pesos
(Php50,000.00) per month until the matter of
support could be finally resolved. cAaDCE
Two days later, or on April 26, 2006, petitioner filed
an Opposition to the Urgent Ex-Parte Motion for
Renewal of the TPO 21 seeking the denial of the
renewal of the TPO on the grounds that it did not (1)
comply with the three-day notice rule, and (2)
contain a notice of hearing. He further asked that
the TPO be modified by (1) removing one vehicle
used by private respondent and returning the same
to its rightful owner, the J-Bros Trading Corporation,
and (2) cancelling or reducing the amount of the
bond from P5,000,000.00 to a more manageable
level at P100,000.00.
Subsequently, on May 23, 2006, petitioner moved 22
for the modification of the TPO to allow him
visitation rights to his children.
On May 24, 2006, the TPO was renewed and
extended yet again, but subject only to the
following modifications prayed for by private
respondent:
a)That respondent (petitioner herein) return the
clothes and other personal belongings of Rosalie
and her children to Judge Jesus Ramos, co-counsel
for Petitioner, within 24 hours from receipt of the
Temporary Protection Order by his counsel,
44 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
otherwise be declared in Indirect Contempt of
Court;
b)Respondent shall make an accounting or list of
furniture and equipment in the conjugal house in
Pitimini St., Capitolville Subdivision, Bacolod City
within 24 hours from receipt of the Temporary
Protection Order by his counsel;
c)Ordering the Chief of the Women's Desk of the
Bacolod City Police Headquarters to remove
Respondent from the conjugal dwelling within eight
(8) hours from receipt of the Temporary Protection
Order by his counsel, and that he cannot return
until 48 hours after the petitioners have left, so that
the petitioner Rosalie and her representatives can
remove things from the conjugal home and make
an inventory of the household furniture, equipment
and other things in the conjugal home, which shall
be submitted to the Court.
d)Deliver full financial support of Php200,000.00 and
Php50,000.00 for rental and Php25,000.00 for clothes
of the three petitioners (sic) children within 24 hours
from receipt of the Temporary Protection Order by
his counsel, otherwise be declared in indirect
contempt of Court; DaHSIT
e)That respondent surrender his two firearms and all
unlicensed firearms to the Clerk of Court within 24
hours from receipt of the Temporary Protection
Order by his counsel;
f)That respondent shall pay petitioner educational
expenses of the children upon presentation of proof
of payment of such expenses. 23
Claiming that petitioner continued to deprive them
of financial support; failed to faithfully comply with
the TPO; and committed new acts of harassment
against her and their children, private respondent
filed another application 24 for the issuance of a
TPO ex parte. She alleged inter alia that petitioner
contrived a replevin suit against himself by J-Bros
Trading, Inc., of which the latter was purportedly no
longer president, with the end in view of recovering
the Nissan Patrol and Starex Van used by private
respondent and the children. A writ of replevin was
served upon private respondent by a group of six or
seven policemen with long firearms that scared the
two small boys, Jessie Anthone and Joseph Eduard.
25
While Joseph Eduard, then three years old, was
driven to school, two men allegedly attempted to
kidnap him, which incident traumatized the boy
resulting in his refusal to go back to school. On
another occasion, petitioner allegedly grabbed
their daughter, Jo-Ann, by the arm and threatened
her. 26 The incident was reported to the police, and
Jo-Ann subsequently filed a criminal complaint
against her father for violation of R.A. 7610, also
known as the "Special Protection of Children
Against Child Abuse, Exploitation and Discrimination
Act."
Aside from the replevin suit, petitioner's lawyers
initiated the filing by the housemaids working at the
conjugal home of a complaint for kidnapping and
illegal detention against private respondent. This
came about after private respondent, armed with
a TPO, went to said home to get her and her
children's belongings. Finding some of her things
inside a housemaid's (Sheryl Jamola) bag in the
maids' room, private respondent filed a case for
qualified theft against Jamola. 27 CDTHSI
On August 23, 2006, the RTC issued a TPO, 28
effective for thirty (30) days, which reads as follows:
Respondent (petitioner herein), Jesus Chua Garcia,
is hereby:
1)Prohibited from threatening to commit or
committing, personally or through another, acts of
violence against the offended party;
2)Prohibited from harassing, annoying, telephoning,
contacting or otherwise communicating in any
form with the offended party, either directly or
indirectly;
3)Required to stay away, personally or through his
friends, relatives, employees or agents, from all the
Petitioners Rosalie J. Garcia and her children,
Rosalie J. Garcia's three brothers, her mother
Primitiva Jaype, cook Novelita Caranzo, driver
Romeo Hontiveros, laundrywoman Mercedita
Bornales, security guard Darwin Gayona and the
petitioner's other household helpers from a distance
of 1,000 meters, and shall not enter the gate of the
subdivision where the Petitioners are temporarily
residing, as well as from the schools of the three
children; Furthermore, that respondent shall not
contact the schools of the children directly or
indirectly in any manner including, ostensibly to pay
for their tuition or other fees directly, otherwise he
will have access to the children through the schools
and the TPO will be rendered nugatory;
4)Directed to surrender all his firearms including
.9MM caliber firearm and a Walther PPK to the
Court;
5)Directed to deliver in full financial support of
Php200,000.00 a month and Php50,000.00 for rental
for the period from August 6 to September 6, 2006;
and support in arrears from March 2006 to August
2006 the total amount of Php1,312,000.00; CIaDTE
6)Directed to deliver educational expenses for
2006-2007 the amount of Php75,000.00 and
Php25,000.00;
7)Directed to allow the continued use of a Nissan
Patrol with Plate No. FEW 508 and a Starex van with
Plate No. FFD 991 and should the respondent fail to
deliver said vehicles, respondent is ordered to
provide the petitioner another vehicle which is the
one taken by J Bros Tading;
8)Ordered not to dissipate, encumber, alienate, sell,
lease or otherwise dispose of the conjugal assets, or
those real properties in the name of Jesus Chua
Garcia only and those in which the conjugal
partnership of gains of the Petitioner Rosalie J.
45 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
Garcia and respondent have an interest in,
especially the conjugal home located in No. 14,
Pitimini St., Capitolville Subdivision, Bacolod City,
and other properties which are conjugal assets or
those in which the conjugal partnership of gains of
Petitioner Rosalie J. Garcia and the respondent
have an interest in and listed in Annexes "I," "I-1,"
and "I-2," including properties covered by TCT Nos.
T-186325 and T-168814;
9)Ordered that the Register of Deeds of Bacolod
City and E.B. Magalona shall be served a copy of
this TEMPORARY PROTECTION ORDER and are
ordered not to allow the transfer, sale,
encumbrance or disposition of these above-cited
properties to any person, entity or corporation
without the personal presence of petitioner Rosalie
J. Garcia, who shall affix her signature in the
presence of the Register of Deeds, due to the fear
of petitioner Rosalie that her signature will be
forged in order to effect the encumbrance or sale
of these properties to defraud her or the conjugal
partnership of gains.
In its Order 29 dated September 26, 2006, the trial
court extended the aforequoted TPO for another
ten (10) days, and gave petitioner a period of five
(5) days within which to show cause why the TPO
should not be renewed, extended, or modified.
Upon petitioner's manifestation, 30 however, that
he has not received a copy of private respondent's
motion to modify/renew the TPO, the trial court
directed in its Order 31 dated October 6, 2006 that
petitioner be furnished a copy of said motion.
Nonetheless, an Order 32 dated a day earlier,
October 5, had already been issued renewing the
TPO dated August 23, 2006. The pertinent portion is
quoted hereunder: AacDHE
xxx xxx xxx
. . . it appearing further that the hearing could not
yet be finally terminated, the Temporary Protection
Order issued on August 23, 2006 is hereby renewed
and extended for thirty (30) days and continuously
extended and renewed for thirty (30) days, after
each expiration, until further orders, and subject to
such modifications as may be ordered by the court.
STHAaD
After having received a copy of the foregoing
Order, petitioner no longer submitted the required
comment to private respondent's motion for
renewal of the TPO arguing that it would only be an
"exercise in futility." 33
Proceedings before the CA
During the pendency of Civil Case No. 06-797,
petitioner filed before the Court of Appeals (CA) a
petition 34 for prohibition (CA-G.R. CEB-SP. No.
01698), with prayer for injunction and temporary
restraining order, challenging (1) the
constitutionality of R.A. 9262 for being violative of
the due process and the equal protection clauses,
and (2) the validity of the modified TPO issued in the
civil case for being "an unwanted product of an
invalid law."
On May 26, 2006, the appellate court issued a 60-
day Temporary Restraining Order 35 (TRO) against
the enforcement of the TPO, the amended TPOs
and other orders pursuant thereto.
Subsequently, however, on January 24, 2007, the
appellate court dismissed 36 the petition for failure
of petitioner to raise the constitutional issue in his
pleadings before the trial court in the civil case,
which is clothed with jurisdiction to resolve the
same. Secondly, the challenge to the validity of
R.A. 9262 through a petition for prohibition seeking
to annul the protection orders issued by the trial
court constituted a collateral attack on said law.
His motion for reconsideration of the foregoing
Decision having been denied in the Resolution 37
dated August 14, 2007, petitioner is now before us
alleging that
The Issues
I.
THE COURT OF APPEALS ERRED IN DISMISSING THE
PETITION ON THE THEORY THAT THE ISSUE OF
CONSTITUTIONALITY WAS NOT RAISED AT THE
EARLIEST OPPORTUNITY AND THAT, THE PETITION
CONSTITUTES A COLLATERAL ATTACK ON THE
VALIDITY OF THE LAW. EcHIAC
II.
THE COURT OF APPEALS COMMITTED SERIOUS ERROR
IN FAILING TO CONCLUDE THAT R.A. 9262 IS
DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE
EQUAL PROTECTION CLAUSE.
III.
THE COURT OF APPEALS COMMITTED GRAVE
MISTAKE IN NOT FINDING THAT R.A. 9262 RUNS
COUNTER TO THE DUE PROCESS CLAUSE OF THE
CONSTITUTION.
IV.
THE COURT OF APPEALS ERRED IN NOT FINDING THAT
THE LAW DOES VIOLENCE TO THE POLICY OF THE
STATE TO PROTECT THE FAMILY AS A BASIC SOCIAL
INSTITUTION.
V.
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT
DECLARING R.A. No. 9262 AS INVALID AND
UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE
DELEGATION OF JUDICIAL POWER TO THE
BARANGAY OFFICIALS. 38
The Ruling of the Court
Before delving into the arguments propounded by
petitioner against the constitutionality of R.A. 9262,
we shall first tackle the propriety of the dismissal by
the appellate court of the petition for prohibition
(CA-G.R. CEB-SP. No. 01698) filed by petitioner.
EDIHSC
46 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
As a general rule, the question of constitutionality
must be raised at the earliest opportunity so that if
not raised in the pleadings, ordinarily it may not be
raised in the trial, and if not raised in the trial court, it
will not be considered on appeal. 39 Courts will not
anticipate a question of constitutional law in
advance of the necessity of deciding it. 40
In defending his failure to attack the
constitutionality of R.A. 9262 before the RTC of
Bacolod City, petitioner argues that the Family
Court has limited authority and jurisdiction that is
"inadequate to tackle the complex issue of
constitutionality." 41
We disagree.
Family Courts have authority
and jurisdiction to consider the
constitutionality of a statute.
At the outset, it must be stressed that Family Courts
are special courts, of the same level as Regional
Trial Courts. Under R.A. 8369, otherwise known as
the "Family Courts Act of 1997," family courts have
exclusive original jurisdiction to hear and decide
cases of domestic violence against women and
children. 42 In accordance with said law, the
Supreme Court designated from among the
branches of the Regional Trial Courts at least one
Family Court in each of several key cities identified.
43 To achieve harmony with the first mentioned law,
Section 7 of R.A. 9262 now provides that Regional
Trial Courts designated as Family Courts shall have
original and exclusive jurisdiction over cases of
VAWC defined under the latter law, viz.:
SEC. 7.Venue. The Regional Trial Court
designated as a Family Court shall have original
and exclusive jurisdiction over cases of violence
against women and their children under this law. In
the absence of such court in the place where the
offense was committed, the case shall be filed in
the Regional Trial Court where the crime or any of
its elements was committed at the option of the
complainant. (Emphasis supplied) HIAESC
Inspite of its designation as a family court, the RTC
of Bacolod City remains possessed of authority as a
court of general original jurisdiction to pass upon all
kinds of cases whether civil, criminal, special
proceedings, land registration, guardianship,
naturalization, admiralty or insolvency. 44 It is settled
that RTCs have jurisdiction to resolve the
constitutionality of a statute, 45 "this authority being
embraced in the general definition of the judicial
power to determine what are the valid and binding
laws by the criterion of their conformity to the
fundamental law." 46 The Constitution vests the
power of judicial review or the power to declare
the constitutionality or validity of a law, treaty,
international or executive agreement, presidential
decree, order, instruction, ordinance, or regulation
not only in this Court, but in all RTCs. 47 We said in
J.M. Tuason and Co., Inc. v. CA 48 that, "[p]lainly
the Constitution contemplates that the inferior
courts should have jurisdiction in cases involving
constitutionality of any treaty or law, for it speaks of
appellate review of final judgments of inferior courts
in cases where such constitutionality happens to be
in issue." Section 5, Article VIII of the 1987
Constitution reads in part as follows:
SEC. 5.The Supreme Court shall have the following
powers:
xxx xxx xxx
2.Review, revise, reverse, modify, or affirm on
appeal or certiorari, as the law or the Rules of Court
may provide, final judgments and orders of lower
courts in:
a.All cases in which the constitutionality or validity
of any treaty, international or executive agreement,
law, presidential decree, proclamation, order,
instruction, ordinance, or regulation is in question.
aADSIc
xxx xxx xxx
Thus, contrary to the posturing of petitioner, the
issue of constitutionality of R.A. 9262 could have
been raised at the earliest opportunity in his
Opposition to the petition for protection order
before the RTC of Bacolod City, which had
jurisdiction to determine the same, subject to the
review of this Court.
Section 20 of A.M. No. 04-10-11-SC, the Rule on
Violence Against Women and Their Children, lays
down a new kind of procedure requiring the
respondent to file an opposition to the petition and
not an answer. 49 Thus:
SEC. 20.Opposition to petition. (a) The
respondent may file an opposition to the petition
which he himself shall verify. It must be
accompanied by the affidavits of witnesses and
shall show cause why a temporary or permanent
protection order should not be issued.
(b)Respondent shall not include in the opposition
any counterclaim, cross-claim or third-party
complaint, but any cause of action which could be
the subject thereof may be litigated in a separate
civil action. (Emphasis supplied)
We cannot subscribe to the theory espoused by
petitioner that, since a counterclaim, cross-claim
and third-party complaint are to be excluded from
the opposition, the issue of constitutionality cannot
likewise be raised therein. A counterclaim is defined
as any claim for money or other relief which a
defending party may have against an opposing
party. 50 A cross-claim, on the other hand, is any
claim by one party against a co-party arising out of
the transaction or occurrence that is the subject
matter either of the original action or of a
counterclaim therein. 51 Finally, a third-party
complaint is a claim that a defending party may,
with leave of court, file against a person not a party
to the action for contribution, indemnity,
subrogation or any other relief, in respect of his
opponent's claim. 52 As pointed out by Justice
Teresita J. Leonardo-de Castro, the
unconstitutionality of a statute is not a cause of
action that could be the subject of a counterclaim,
47 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
cross-claim or a third-party complaint. Therefore, it is
not prohibited from being raised in the opposition in
view of the familiar maxim expressio unius est
exclusio alterius. IHcSCA
Moreover, it cannot be denied that this issue affects
the resolution of the case a quo because the right
of private respondent to a protection order is
founded solely on the very statute the validity of
which is being attacked 53 by petitioner who has
sustained, or will sustain, direct injury as a result of its
enforcement. The alleged unconstitutionality of R.A.
9262 is, for all intents and purposes, a valid cause for
the non-issuance of a protection order.
That the proceedings in Civil Case No. 06-797 are
summary in nature should not have deterred
petitioner from raising the same in his Opposition.
The question relative to the constitutionality of a
statute is one of law which does not need to be
supported by evidence. 54 Be that as it may,
Section 25 of A.M. No. 04-10-11-SC nonetheless
allows the conduct of a hearing to determine legal
issues, among others, viz.:
SEC. 25.Order for further hearing. In case the
court determines the need for further hearing, it
may issue an order containing the following:
(a)Facts undisputed and admitted;
(b)Factual and legal issues to be resolved;
(c)Evidence, including objects and documents that
have been marked and will be presented;
(d)Names of witnesses who will be ordered to
present their direct testimonies in the form of
affidavits; and
(e)Schedule of the presentation of evidence by
both parties which shall be done in one day, to the
extent possible, within the 30-day period of the
effectivity of the temporary protection order issued.
(Emphasis supplied)
To obviate potential dangers that may arise
concomitant to the conduct of a hearing when
necessary, Section 26 (b) of A.M. No. 04-10-11-SC
provides that if a temporary protection order issued
is due to expire, the trial court may extend or renew
the said order for a period of thirty (30) days each
time until final judgment is rendered. It may likewise
modify the extended or renewed temporary
protection order as may be necessary to meet the
needs of the parties. With the private respondent
given ample protection, petitioner could proceed
to litigate the constitutional issues, without
necessarily running afoul of the very purpose for the
adoption of the rules on summary procedure.
DcAaSI
In view of all the foregoing, the appellate court
correctly dismissed the petition for prohibition with
prayer for injunction and temporary restraining
order (CA-G.R. CEB-SP. No. 01698). Petitioner may
have proceeded upon an honest belief that if he
finds succor in a superior court, he could be
granted an injunctive relief. However, Section 22 (j)
of A.M. No. 04-10-11-SC expressly disallows the filing
of a petition for certiorari, mandamus or prohibition
against any interlocutory order issued by the trial
court. Hence, the 60-day TRO issued by the
appellate court in this case against the
enforcement of the TPO, the amended TPOs and
other orders pursuant thereto was improper, and it
effectively hindered the case from taking its normal
course in an expeditious and summary manner.
As the rules stand, a review of the case by appeal
or certiorari before judgment is prohibited.
Moreover, if the appeal of a judgment granting
permanent protection shall not stay its
enforcement, 55 with more reason that a TPO,
which is valid only for thirty (30) days at a time, 56
should not be enjoined.
The mere fact that a statute is alleged to be
unconstitutional or invalid, does not of itself entitle a
litigant to have the same enjoined. 57 In Younger v.
Harris, Jr., 58 the Supreme Court of the United States
declared, thus:
Federal injunctions against state criminal statutes,
either in their entirety or with respect to their
separate and distinct prohibitions, are not to be
granted as a matter of course, even if such statutes
are unconstitutional. No citizen or member of the
community is immune from prosecution, in good
faith, for his alleged criminal acts. The imminence of
such a prosecution even though alleged to be
unauthorized and, hence, unlawful is not alone
ground for relief in equity which exerts its
extraordinary powers only to prevent irreparable
injury to the plaintiff who seeks its aid. (Citations
omitted)
The sole objective of injunctions is to preserve the
status quo until the trial court hears fully the merits of
the case. It bears stressing, however, that
protection orders are granted ex parte so as to
protect women and their children from acts of
violence. To issue an injunction against such orders
will defeat the very purpose of the law against
VAWC.
Notwithstanding all these procedural flaws, we shall
not shirk from our obligation to determine novel
issues, or issues of first impression, with far-reaching
implications. We have, time and again, discharged
our solemn duty as final arbiter of constitutional
issues, and with more reason now, in view of private
respondent's plea in her Comment 59 to the instant
Petition that we should put the challenge to the
constitutionality of R.A. 9262 to rest. And so we shall.
Intent of Congress in
enacting R.A. 9262.
Petitioner claims that since R.A. 9262 is intended to
prevent and criminalize spousal and child abuse,
which could very well be committed by either the
husband or the wife, gender alone is not enough
basis to deprive the husband/father of the
remedies under the law. 60 IHTaCE
48 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
A perusal of the deliberations of Congress on
Senate Bill No. 2723, 61 which became R.A. 9262,
reveals that while the sponsor, Senator Luisa
Pimentel-Ejercito (better known as Senator Loi
Estrada), had originally proposed what she called a
"synthesized measure" 62 an amalgamation of
two measures, namely, the "Anti-Domestic Violence
Act" and the "Anti-Abuse of Women in Intimate
Relationships Act" 63 providing protection to "all
family members, leaving no one in isolation" but at
the same time giving special attention to women as
the "usual victims" of violence and abuse, 64
nonetheless, it was eventually agreed that men be
denied protection under the same measure. We
quote pertinent portions of the deliberations:
Wednesday, December 10, 2003
Senator Pangilinan. I just wanted to place this on
record, Mr. President. Some women's groups have
expressed concerns and relayed these concerns to
me that if we are to include domestic violence
apart from against women as well as other
members of the household, including children or
the husband, they fear that this would weaken the
efforts to address domestic violence of which the
main victims or the bulk of the victims really are the
wives, the spouses or the female partners in a
relationship. We would like to place that on record.
How does the good Senator respond to this kind of
observation?
Senator Estrada. Yes, Mr. President, there is this
group of women who call themselves "WIIR" Women
in Intimate Relationship. They do not want to
include men in this domestic violence. But plenty of
men are also being abused by women. I am
playing safe so I placed here members of the
family, prescribing penalties therefor and providing
protective measures for victims. This includes the
men, children, live-in, common-law wives, and
those related with the family. 65
xxx xxx xxx
Wednesday, January 14, 2004
xxx xxx xxx
The President Pro Tempore. . . . SDITAC
Also, may the Chair remind the group that there
was the discussion whether to limit this to women
and not to families which was the issue of the AWIR
group. The understanding that I have is that we
would be having a broader scope rather than just
women, if I remember correctly, Madam sponsor.
Senator Estrada. Yes, Mr. President.
As a matter of fact, that was brought up by Senator
Pangilinan during the interpellation period.
I think Senator Sotto has something to say to that.
Senator Legarda. Mr. President, the reason I am in
support of the measure. Do not get me wrong.
However, I believe that there is a need to protect
women's rights especially in the domestic
environment.
As I said earlier, there are nameless, countless,
voiceless women who have not had the
opportunity to file a case against their spouses, their
live-in partners after years, if not decade, of battery
and abuse. If we broaden the scope to include
even the men, assuming they can at all be abused
by the women or their spouses, then it would not
equalize the already difficult situation for women,
Mr. President. aIcDCA
I think that the sponsor, based on our earlier
conversations, concurs with this position. I am sure
that the men in this Chamber who love their
women in their lives so dearly will agree with this
representation. Whether we like it or not, it is an
unequal world. Whether we like it or not, no matter
how empowered the women are, we are not given
equal opportunities especially in the domestic
environment where the macho Filipino man would
always feel that he is stronger, more superior to the
Filipino woman.
xxx xxx xxx
The President Pro Tempore. What does the sponsor
say?
Senator Estrada. Mr. President, before accepting
this, the committee came up with this bill because
the family members have been included in this
proposed measure since the other members of the
family other than women are also possible victims
of violence. While women are most likely the
intended victims, one reason incidentally why the
measure focuses on women, the fact remains that
in some relatively few cases, men also stand to be
victimized and that children are almost always the
helpless victims of violence. I am worried that there
may not be enough protection extended to other
family members particularly children who are
excluded. Although Republic Act No. 7610, for
instance, more or less, addresses the special needs
of abused children. The same law is inadequate.
Protection orders for one are not available in said
law.
I am aware that some groups are apprehensive
about granting the same protection to men,
fearing that they may use this law to justify their
abusive behavior against women. However, we
should also recognize that there are established
procedures and standards in our courts which give
credence to evidentiary support and cannot just
arbitrarily and whimsically entertain baseless
complaints. cSCADE
Mr. President, this measure is intended to harmonize
family relations and to protect the family as the
basic social institution. Though I recognize the
unequal power relations between men and women
in our society, I believe we have an obligation to
uphold inherent rights and dignity of both husband
and wife and their immediate family members,
particularly children.
49 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
While I prefer to focus mainly on women, I was
compelled to include other family members as a
critical input arrived at after a series of
consultations/meetings with various NGOs, experts,
sports groups and other affected sectors, Mr.
President.
Senator Sotto. Mr. President.
The President Pro Tempore. Yes, with the permission
of the other senators.
Senator Sotto. Yes, with the permission of the two
ladies on the Floor.
The President Pro Tempore. Yes, Sen. Vicente C.
Sotto III is recognized.
Senator Sotto. I presume that the effect of the
proposed amendment of Senator Legarda would
be removing the "men and children" in this
particular bill and focus specifically on women
alone. That will be the net effect of that proposed
amendment. Hearing the rationale mentioned by
the distinguished sponsor, Sen. Luisa "Loi" Ejercito
Estrada, I am not sure now whether she is inclined to
accept the proposed amendment of Senator
Legarda.
I am willing to wait whether she is accepting this or
not because if she is going to accept this, I will
propose an amendment to the amendment rather
than object to the amendment, Mr. President.
EcATDH
xxx xxx xxx
Senator Estrada. The amendment is accepted, Mr.
President.
The President Pro Tempore. Is there any objection?
xxx xxx xxx
Senator Sotto. . . . May I propose an amendment to
the amendment.
The President Pro Tempore. Before we act on the
amendment?
Senator Sotto. Yes, Mr. President.
The President Pro Tempore. Yes, please proceed.
Senator Sotto. Mr. President, I am inclined to believe
the rationale used by the distinguished proponent
of the amendment. As a matter of fact, I tend to
agree. Kung may maaabuso, mas malamang
iyong babae kaysa sa lalake. At saka iyong mga
lalake, puwede na talagang magulpi iyan. Okey
lang iyan. But I cannot agree that we remove the
children from this particular measure.
So, if I may propose an amendment
The President Pro Tempore. To the amendment.
Senator Sotto. more than the women, the
children are very much abused. As a matter of fact,
it is not limited to minors. The abuse is not limited to
seven, six, 5-year-old children. I have seen 14, 15-
year-old children being abused by their fathers,
even by their mothers. And it breaks my heart to
find out about these things.
Because of the inadequate existing law on abuse
of children, this particular measure will update that.
It will enhance and hopefully prevent the abuse of
children and not only women. DEScaT
SOTTO-LEGARDA AMENDMENTS
Therefore, may I propose an amendment that, yes,
we remove the aspect of the men in the bill but not
the children.
Senator Legarda. I agree, Mr. President, with the
Minority Leader.
The President Pro Tempore. Effectively then, it will be
women AND CHILDREN.
Senator Sotto. Yes, Mr. President.
Senator Estrada. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection?
[Silence] There being none, the amendment, as
amended, is approved. 66
It is settled that courts are not concerned with the
wisdom, justice, policy, or expediency of a statute.
67 Hence, we dare not venture into the real
motivations and wisdom of the members of
Congress in limiting the protection against violence
and abuse under R.A. 9262 to women and children
only. No proper challenge on said grounds may be
entertained in this proceeding. Congress has made
its choice and it is not our prerogative to supplant
this judgment. The choice may be perceived as
erroneous but even then, the remedy against it is to
seek its amendment or repeal by the legislative. By
the principle of separation of powers, it is the
legislative that determines the necessity,
adequacy, wisdom and expediency of any law. 68
We only step in when there is a violation of the
Constitution. However, none was sufficiently shown
in this case.
R.A. 9262 does not violate
the guaranty of equal protection
of the laws.
Equal protection simply requires that all persons or
things similarly situated should be treated alike,
both as to rights conferred and responsibilities
imposed. The oft-repeated disquisition in the early
case of Victoriano v. Elizalde Rope Workers' Union
69 is instructive: cSICHD
The guaranty of equal protection of the laws is not
a guaranty of equality in the application of the laws
upon all citizens of the state. It is not, therefore, a
requirement, in order to avoid the constitutional
prohibition against inequality, that every man,
woman and child should be affected alike by a
50 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
statute. Equality of operation of statutes does not
mean indiscriminate operation on persons merely
as such, but on persons according to the
circumstances surrounding them. It guarantees
equality, not identity of rights. The Constitution does
not require that things which are different in fact be
treated in law as though they were the same. The
equal protection clause does not forbid
discrimination as to things that are different. It does
not prohibit legislation which is limited either in the
object to which it is directed or by the territory
within which it is to operate.
The equal protection of the laws clause of the
Constitution allows classification. Classification in
law, as in the other departments of knowledge or
practice, is the grouping of things in speculation or
practice because they agree with one another in
certain particulars. A law is not invalid because of
simple inequality. The very idea of classification is
that of inequality, so that it goes without saying that
the mere fact of inequality in no manner
determines the matter of constitutionality. All that is
required of a valid classification is that it be
reasonable, which means that the classification
should be based on substantial distinctions which
make for real differences; that it must be germane
to the purpose of the law; that it must not be limited
to existing conditions only; and that it must apply
equally to each member of the class. This Court has
held that the standard is satisfied if the classification
or distinction is based on a reasonable foundation
or rational basis and is not palpably arbitrary.
(Emphasis supplied)
Measured against the foregoing jurisprudential
yardstick, we find that R.A. 9262 is based on a valid
classification as shall hereinafter be discussed and,
as such, did not violate the equal protection clause
by favoring women over men as victims of violence
and abuse to whom the State extends its
protection. IDAaCc
I.R.A. 9262 rests on substantial distinctions.
The unequal power relationship between women
and men; the fact that women are more likely than
men to be victims of violence; and the widespread
gender bias and prejudice against women all make
for real differences justifying the classification under
the law. As Justice McIntyre succinctly states, "the
accommodation of differences . . . is the essence of
true equality." 70
A.Unequal power relationship
between men and women
According to the Philippine Commission on Women
(the National Machinery for Gender Equality and
Women's Empowerment), violence against women
(VAW) is deemed to be closely linked with the
unequal power relationship between women and
men otherwise known as "gender-based violence".
Societal norms and traditions dictate people to
think men are the leaders, pursuers, providers, and
take on dominant roles in society while women are
nurturers, men's companions and supporters, and
take on subordinate roles in society. This perception
leads to men gaining more power over women.
With power comes the need to control to retain
that power. And VAW is a form of men's expression
of controlling women to retain power. 71 HSaIET
The United Nations, which has long recognized
VAW as a human rights issue, passed its Resolution
48/104 on the Declaration on Elimination of
Violence Against Women on December 20, 1993
stating that "violence against women is a
manifestation of historically unequal power relations
between men and women, which have led to
domination over and discrimination against women
by men and to the prevention of the full
advancement of women, and that violence
against women is one of the crucial social
mechanisms by which women are forced into
subordinate positions, compared with men." 72
Then Chief Justice Reynato S. Puno traced the
historical and social context of gender-based
violence and developments in advocacies to
eradicate VAW, in his remarks delivered during the
Joint Launching of R.A. 9262 and its Implementing
Rules last October 27, 2004, the pertinent portions of
which are quoted hereunder:
History reveals that most societies sanctioned the
use of violence against women. The patriarch of a
family was accorded the right to use force on
members of the family under his control. I quote the
early studies:
Traditions subordinating women have a long history
rooted in patriarchy the institutional rule of men.
Women were seen in virtually all societies to be
naturally inferior both physically and intellectually. In
ancient Western societies, women whether slave,
concubine or wife, were under the authority of
men. In law, they were treated as property.
The Roman concept of patria potestas allowed the
husband to beat, or even kill, his wife if she
endangered his property right over her. Judaism,
Christianity and other religions oriented towards the
patriarchal family strengthened the male
dominated structure of society.
English feudal law reinforced the tradition of male
control over women. Even the eminent Blackstone
has been quoted in his commentaries as saying
husband and wife were one and that one was the
husband. However, in the late 1500s and through
the entire 1600s, English common law began to limit
the right of husbands to chastise their wives. Thus,
common law developed the rule of thumb, which
allowed husbands to beat their wives with a rod or
stick no thicker than their thumb. TcDAHS
In the later part of the 19th century, legal
recognition of these rights to chastise wives or inflict
corporeal punishment ceased. Even then, the
preservation of the family was given more
importance than preventing violence to women.
The metamorphosis of the law on violence in the
United States followed that of the English common
law. In 1871, the Supreme Court of Alabama
51 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
became the first appellate court to strike down the
common law right of a husband to beat his wife:
The privilege, ancient though it may be, to beat
one's wife with a stick, to pull her hair, choke her,
spit in her face or kick her about the floor, or to
inflict upon her like indignities, is not now
acknowledged by our law. . . In person, the wife is
entitled to the same protection of the law that the
husband can invoke for himself.
As time marched on, the women's advocacy
movement became more organized. The
temperance leagues initiated it. These leagues had
a simple focus. They considered the evils of
alcoholism as the root cause of wife abuse. Hence,
they demonstrated and picketed saloons, bars and
their husbands' other watering holes. Soon,
however, their crusade was joined by suffragette
movements, expanding the liberation movement's
agenda. They fought for women's right to vote, to
own property, and more. Since then, the feminist
movement was on the roll.
The feminist movement exposed the private
invisibility of the domestic violence to the public
gaze. They succeeded in transforming the issue into
an important public concern. No less than the
United States Supreme Court, in 1992 case Planned
Parenthood v. Casey, noted:
In an average 12-month period in this country,
approximately two million women are the victims of
severe assaults by their male partners. In a 1985
survey, women reported that nearly one of every
eight husbands had assaulted their wives during the
past year. The [American Medical Association]
views these figures as "marked underestimates,"
because the nature of these incidents discourages
women from reporting them, and because surveys
typically exclude the very poor, those who do not
speak English well, and women who are homeless
or in institutions or hospitals when the survey is
conducted. According to the AMA, "researchers on
family violence agree that the true incidence of
partner violence is probably double the above
estimates; or four million severely assaulted women
per year." cIDHSC
Studies on prevalence suggest that from one-fifth to
one-third of all women will be physically assaulted
by a partner or ex-partner during their lifetime. . .
Thus on an average day in the United States, nearly
11,000 women are severely assaulted by their male
partners. Many of these incidents involve sexual
assault. . . In families where wife beating takes
place, moreover, child abuse is often present as
well.
Other studies fill in the rest of this troubling picture.
Physical violence is only the most visible form of
abuse. Psychological abuse, particularly forced
social and economic isolation of women, is also
common.
Many victims of domestic violence remain with their
abusers, perhaps because they perceive no
superior alternative . . . Many abused women who
find temporary refuge in shelters return to their
husbands, in large part because they have no
other source of income. . . Returning to one's abuser
can be dangerous. Recent Federal Bureau of
Investigation statistics disclose that 8.8 percent of all
homicide victims in the United States are killed by
their spouses . . . Thirty percent of female homicide
victims are killed by their
male partners. CHTcSE
Finally in 1994, the United
States Congress enacted
the Violence Against
Women Act.
In the International front, the
women's struggle for
equality was no less
successful. The United States
Charter and the Universal
Declaration of Human
Rights affirmed the equality
of all human beings. In 1979,
the UN General Assembly
adopted the landmark
Convention on the
Elimination of all Forms of Discrimination Against
Women (CEDAW). In 1993, the UN General
Assembly also adopted the Declaration on the
Elimination of Violence Against Women. World
conferences on the role and rights of women have
been regularly held in Mexico City, Copenhagen,
Nairobi and Beijing. The UN itself established a
Commission on the Status of Women. TEaADS
The Philippines has been in cadence with the half
and full steps of all these women's movements.
No less than Section 14, Article II of our 1987
Constitution mandates the State to recognize the
role of women in nation building and to ensure the
fundamental equality before the law of women
and men. Our Senate has ratified the CEDAW as
well as the Convention on the Rights of the Child
and its two protocols. To cap it all, Congress, on
March 8, 2004, enacted Rep. Act No. 9262, entitled
"An Act Defining Violence Against Women and
Their Children, Providing for Protective Measures for
Victims, Prescribing Penalties therefor and for other
Purposes." (Citations omitted)
B.Women are the "usual" and "most likely"
victims of violence.
At the time of the presentation of Senate Bill No.
2723, official statistics on violence against women
and children show that
. . . physical injuries had the highest number of
cases at 5,058 in 2002 representing 55.63% of total
cases reported (9,903). And for the first semester of
2003, there were 2,381 reported cases out of 4,354
cases which represent 54.31%. . . . (T)he total
number of women in especially difficult
circumstances served by the Department of Social
Welfare and Development (DSWD) for the year
2002, there are 1,417 physically abused/maltreated
cases out of the total of 5,608 cases. . . . (T)here are
1,091 DSWD cases out of a total number of 3,471
52 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
cases for the first semester of 2003. Female violence
comprised more than 90% of all forms of abuse and
violence and more than 90% of these reported
cases were committed by the women's intimate
partners such as their husbands and live-in partners.
73
Recently, the Philippine Commission on Women
presented comparative statistics on violence
against women across an eight-year period from
2004 to August of 2011 with violations under R.A.
9262 ranking first among the different VAW
categories since its implementation in 2004, 74 thus:
ADECcI
*2011 report covers only from January to August
Source: Philippine National Police Women and
Children Protection Center (WCPC)
On the other hand, no reliable estimates may be
obtained on domestic abuse and violence against
men in the Philippines because incidents thereof
are relatively low and, perhaps, because many
men will not even attempt to report the situation. In
the United Kingdom, 32% of women who had ever
experienced domestic violence did so four or five
(or more) times, compared with 11% of the smaller
number of men who had ever experienced
domestic violence; and women constituted 89% of
all those who had experienced 4 or more incidents
of domestic violence. 75 Statistics in Canada show
that spousal violence by a woman against a man is
less likely to cause injury than the other way around
(18 percent versus 44 percent). Men, who
experience violence from their spouses are much
less likely to live in fear of violence at the hands of
their spouses, and much less likely to experience
sexual assault. In fact, many cases of physical
violence by a woman against a spouse are in self-
defense or the result of many years of physical or
emotional abuse. 76 CADSHI
While there are, indeed, relatively few cases of
violence and abuse perpetrated against men in
the Philippines, the same cannot render R.A. 9262
invalid.
In a 1960 case involving the violation of a city
ordinance requiring drivers of animal-drawn
vehicles to pick up, gather and deposit in
receptacles the manure emitted or discharged by
their vehicle-drawing animals in any public
highways, streets, plazas, parks or alleys, said
ordinance was challenged as violative of the
guaranty of equal protection of laws as its
application is limited to owners and drivers of
vehicle-drawing animals and not to those animals,
although not utilized, but similarly pass through the
same streets.
The ordinance was upheld as a valid classification
for the reason that, while there may be non-vehicle-
drawing animals that also traverse the city roads,
"but their number must be negligible and their
appearance therein merely occasional, compared
to the rig-drawing ones, as not to constitute a
menace to the health of the community." 77 The
mere fact that the legislative classification may
result in actual inequality is not violative of the right
to equal protection, for every classification of
persons or things for regulation by law produces
inequality in some degree, but the law is not
thereby rendered invalid. 78 TcSHaD
C.Gender bias and prejudices
From the initial report to the police through
prosecution, trial, and sentencing, crimes against
women are often treated differently and less
seriously than other crimes. This was argued by then
United States Senator Joseph R. Biden, Jr., now Vice
President, chief sponsor of the Violence Against
Women Act (VAWA), in defending the civil rights
remedy as a valid exercise of the U.S. Congress'
authority under the Commerce and Equal
Protection Clauses. He stressed that the widespread
gender bias in the U.S. has institutionalized historic
prejudices against victims of rape or domestic
violence, subjecting them to "double victimization"
first at the hands of the offender and then of the
legal system. 79
Our own Senator Loi Estrada lamented in her
Sponsorship Speech for Senate Bill No. 2723 that
"(w)henever violence occurs in the family, the
police treat it as a private matter and advise the
parties to settle the conflict themselves. Once the
complainant brings the case to the prosecutor, the
latter is hesitant to file the complaint for fear that it
might later be withdrawn. This lack of response or
reluctance to be involved by the police and
prosecution reinforces the escalating, recurring and
often serious nature of domestic violence." 80
Sadly, our own courts, as well, have exhibited
prejudices and biases against our women.
In a recent case resolved on March 9, 2011, we
fined RTC Judge Venancio J. Amila for Conduct
Unbecoming of a Judge. He used derogatory and
irreverent language in reference to the
complainant in a petition for TPO and PPO under
R.A. 9262, calling her as "only a live-in partner" and
presenting her as an "opportunist" and a "mistress" in
an "illegitimate relationship." Judge Amila even
called her a "prostitute," and accused her of being
motivated by "insatiable greed" and of absconding
53 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
with the contested property. 81 Such remarks
betrayed Judge Amila's prejudices and lack of
gender sensitivity.
The enactment of R.A. 9262 aims to address the
discrimination brought about by biases and
prejudices against women. As emphasized by the
CEDAW Committee on the Elimination of
Discrimination against Women, addressing or
correcting discrimination through specific measures
focused on women does not discriminate against
men. 82 Petitioner's contention, 83 therefore, that
R.A. 9262 is discriminatory and that it is an "anti-
male," "husband-bashing," and "hate-men" law
deserves scant consideration. As a State Party to
the CEDAW, the Philippines bound itself to take all
appropriate measures "to modify the social and
cultural patterns of conduct of men and women,
with a view to achieving the elimination of
prejudices and customary and all other practices
which are based on the idea of the inferiority or the
superiority of either of the sexes or on stereotyped
roles for men and women." 84 Justice Puno
correctly pointed out that "(t)he paradigm shift
changing the character of domestic violence from
a private affair to a public offense will require the
development of a distinct mindset on the part of
the police, the prosecution and the judges." 85
II.The classification is germane to the purpose of the
law.
The distinction between men and women is
germane to the purpose of R.A. 9262, which is to
address violence committed against women and
children, spelled out in its Declaration of Policy, as
follows:
SEC. 2.Declaration of Policy. It is hereby declared
that the State values the dignity of women and
children and guarantees full respect for human
rights. The State also recognizes the need to protect
the family and its members particularly women and
children, from violence and threats to their personal
safety and security.
Towards this end, the State shall exert efforts to
address violence committed against women and
children in keeping with the fundamental freedoms
guaranteed under the Constitution and the
provisions of the Universal Declaration of Human
Rights, the Convention on the Elimination of All
Forms of Discrimination Against Women,
Convention on the Rights of the Child and other
international human rights instruments of which the
Philippines is a party. DHECac
In 1979, the U.N. General Assembly adopted the
CEDAW, which the Philippines ratified on August 5,
1981. Subsequently, the Optional Protocol to the
CEDAW was also ratified by the Philippines on
October 6, 2003. 86 This Convention mandates that
State parties shall accord to women equality with
men before the law 87 and shall take all
appropriate measures to eliminate discrimination
against women in all matters relating to marriage
and family relations on the basis of equality of men
and women. 88 The Philippines likewise ratified the
Convention on the Rights of the Child and its two
protocols. 89 It is, thus, bound by said Conventions
and their respective protocols.
III.The classification is not limited to existing
conditions only, and apply equally to all members
Moreover, the application of R.A. 9262 is not limited
to the existing conditions when it was promulgated,
but to future conditions as well, for as long as the
safety and security of women and their children are
threatened by violence and abuse.
R.A. 9262 applies equally to all women and children
who suffer violence and abuse. Section 3 thereof
defines VAWC as:
. . . any act or a series of acts committed by any
person against a woman who is his wife, former
wife, or against a woman with whom the person
has or had a sexual or dating relationship, or with
whom he has a common child, or against her child
whether legitimate or illegitimate, within or without
the family abode, which result in or is likely to result
in physical, sexual, psychological harm or suffering,
or economic abuse including threats of such acts,
battery, assault, coercion, harassment or arbitrary
deprivation of liberty. It includes, but is not limited
to, the following acts: SACHcD
A."Physical Violence" refers to acts that include
bodily or physical harm;
B."Sexual violence" refers to an act which is sexual in
nature, committed against a woman or her child. It
includes, but is not limited to:
a)rape, sexual harassment, acts of lasciviousness,
treating a woman or her child as a sex object,
making demeaning and sexually suggestive
remarks, physically attacking the sexual parts of the
victim's body, forcing her/him to watch obscene
publications and indecent shows or forcing the
woman or her child to do indecent acts and/or
make films thereof, forcing the wife and
mistress/lover to live in the conjugal home or sleep
together in the same room with the abuser;
b)acts causing or attempting to cause the victim to
engage in any sexual activity by force, threat of
force, physical or other harm or threat of physical or
other harm or coercion;
c)Prostituting the woman or child.
C."Psychological violence" refers to acts or
omissions causing or likely to cause mental or
emotional suffering of the victim such as but not
limited to intimidation, harassment, stalking,
damage to property, public ridicule or humiliation,
repeated verbal abuse and mental infidelity. It
includes causing or allowing the victim to witness
the physical, sexual or psychological abuse of a
member of the family to which the victim belongs,
or to witness pornography in any form or to witness
abusive injury to pets or to unlawful or unwanted
deprivation of the right to custody and/or visitation
of common children. CDEaAI
54 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
D."Economic abuse" refers to acts that make or
attempt to make a woman financially dependent
which includes, but is not limited to the following:
1.withdrawal of financial support or preventing the
victim from engaging in any legitimate profession,
occupation, business or activity, except in cases
wherein the other spouse/partner objects on valid,
serious and moral grounds as defined in Article 73 of
the Family Code;
2.deprivation or threat of deprivation of financial
resources and the right to the use and enjoyment of
the conjugal, community or property owned in
common;
3.destroying household property;
4.controlling the victims' own money or properties or
solely controlling the conjugal money or properties.
It should be stressed that the acts enumerated in
the aforequoted provision are attributable to
research that has exposed the dimensions and
dynamics of battery. The acts described here are
also found in the U.N. Declaration on the Elimination
of Violence Against Women. 90 Hence, the
argument advanced by petitioner that the
definition of what constitutes abuse removes the
difference between violent action and simple
marital tiffs is tenuous.
There is nothing in the definition of VAWC that is
vague and ambiguous that will confuse petitioner
in his defense. The acts enumerated above are
easily understood and provide adequate contrast
between the innocent and the prohibited acts.
They are worded with sufficient definiteness that
persons of ordinary intelligence can understand
what conduct is prohibited, and need not guess at
its meaning nor differ in its application. 91 Yet,
petitioner insists 92 that phrases like "depriving or
threatening to deprive the woman or her child of a
legal right," "solely controlling the conjugal or
common money or properties," "marital infidelity,"
and "causing mental or emotional anguish" are so
vague that they make every quarrel a case of
spousal abuse. However, we have stressed that the
"vagueness" doctrine merely requires a reasonable
degree of certainty for the statute to be upheld
not absolute precision or mathematical exactitude,
as petitioner seems to suggest. Flexibility, rather
than meticulous specificity, is permissible as long as
the metes and bounds of the statute are clearly
delineated. An act will not be held invalid merely
because it might have been more explicit in its
wordings or detailed in its provisions. 93
There is likewise no merit to the contention that R.A.
9262 singles out the husband or father as the culprit.
As defined above, VAWC may likewise be
committed "against a woman with whom the
person has or had a sexual or dating relationship."
Clearly, the use of the gender-neutral word "person"
who has or had a sexual or dating relationship with
the woman encompasses even lesbian
relationships. Moreover, while the law provides that
the offender be related or connected to the victim
by marriage, former marriage, or a sexual or dating
relationship, it does not preclude the application of
the principle of conspiracy under the Revised Penal
Code (RPC). Thus, in the case of Go-Tan v. Spouses
Tan, 94 the parents-in-law of Sharica Mari L. Go-Tan,
the victim, were held to be proper respondents in
the case filed by the latter upon the allegation that
they and their son (Go-Tan's husband) had
community of design and purpose in tormenting
her by giving her insufficient financial support;
harassing and pressuring her to be ejected from the
family home; and in repeatedly abusing her
verbally, emotionally, mentally and physically.
TCIEcH
R.A. 9262 is not violative of the
due process clause of the Constitution.
Petitioner bewails the disregard of R.A. 9262,
specifically in the issuance of POs, of all protections
afforded by the due process clause of the
Constitution. Says he: "On the basis of
unsubstantiated allegations, and practically no
opportunity to respond, the husband is stripped of
family, property, guns, money, children, job, future
employment and reputation, all in a matter of
seconds, without an inkling of what happened." 95
A protection order is an order issued to prevent
further acts of violence against women and their
children, their family or household members, and to
grant other necessary reliefs. Its purpose is to
safeguard the offended parties from further harm,
minimize any disruption in their daily life and
facilitate the opportunity and ability to regain
control of their life. 96
"The scope of reliefs in protection orders is
broadened to ensure that the victim or offended
party is afforded all the remedies necessary to
curtail access by a perpetrator to the victim. This
serves to safeguard the victim from greater risk of
violence; to accord the victim and any designated
family or household member safety in the family
residence, and to prevent the perpetrator from
committing acts that jeopardize the employment
and support of the victim. It also enables the court
to award temporary custody of minor children to
protect the children from violence, to prevent their
abduction by the perpetrator and to ensure their
financial support." 97
The rules require that petitions for protection order
be in writing, signed and verified by the petitioner
98 thereby undertaking full responsibility, criminal or
civil, for every allegation therein. Since "time is of
the essence in cases of VAWC if further violence is
to be prevented," 99 the court is authorized to issue
ex parte a TPO after raffle but before notice and
hearing when the life, limb or property of the victim
is in jeopardy and there is reasonable ground to
believe that the order is necessary to protect the
victim from the immediate and imminent danger of
VAWC or to prevent such violence, which is about
to recur. 100
There need not be any fear that the judge may
have no rational basis to issue an ex parte order.
55 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
The victim is required not only to verify the
allegations in the petition, but also to attach her
witnesses' affidavits to the petition. 101
The grant of a TPO ex parte cannot, therefore, be
challenged as violative of the right to due process.
Just like a writ of preliminary attachment which is
issued without notice and hearing because the
time in which the hearing will take could be enough
to enable the defendant to abscond or dispose of
his property, 102 in the same way, the victim of
VAWC may already have suffered harrowing
experiences in the hands of her tormentor, and
possibly even death, if notice and hearing were
required before such acts could be prevented. It is
a constitutional commonplace that the ordinary
requirements of procedural due process must yield
to the necessities of protecting vital public interests,
103 among which is protection of women and
children from violence and threats to their personal
safety and security.
It should be pointed out that when the TPO is issued
ex parte, the court shall likewise order that notice
be immediately given to the respondent directing
him to file an opposition within five (5) days from
service. Moreover, the court shall order that notice,
copies of the petition and TPO be served
immediately on the respondent by the court sheriffs.
The TPOs are initially effective for thirty (30) days
from service on the respondent. 104
Where no TPO is issued ex parte, the court will
nonetheless order the immediate issuance and
service of the notice upon the respondent requiring
him to file an opposition to the petition within five
(5) days from service. The date of the preliminary
conference and hearing on the merits shall likewise
be indicated on the notice. 105
The opposition to the petition which the respondent
himself shall verify, must be accompanied by the
affidavits of witnesses and shall show cause why a
temporary or permanent protection order should
not be issued. 106 HSCcTD
It is clear from the foregoing rules that the
respondent of a petition for protection order should
be apprised of the charges imputed to him and
afforded an opportunity to present his side. Thus,
the fear of petitioner of being "stripped of family,
property, guns, money, children, job, future
employment and reputation, all in a matter of
seconds, without an inkling of what happened" is a
mere product of an overactive imagination. The
essence of due process is to be found in the
reasonable opportunity to be heard and submit
any evidence one may have in support of one's
defense. "To be heard" does not only mean verbal
arguments in court; one may be heard also through
pleadings. Where opportunity to be heard, either
through oral arguments or pleadings, is accorded,
there is no denial of procedural due process. 107
It should be recalled that petitioner filed on April 26,
2006 an Opposition to the Urgent Ex-Parte Motion
for Renewal of the TPO that was granted only two
days earlier on April 24, 2006. Likewise, on May 23,
2006, petitioner filed a motion for the modification
of the TPO to allow him visitation rights to his
children. Still, the trial court in its Order dated
September 26, 2006, gave him five days (5) within
which to show cause why the TPO should not be
renewed or extended. Yet, he chose not to file the
required comment arguing that it would just be an
"exercise in futility," conveniently forgetting that the
renewal of the questioned TPO was only for a
limited period (30 days) each time, and that he
could prevent the continued renewal of said order
if he can show sufficient cause therefor. Having
failed to do so, petitioner may not now be heard to
complain that he was denied due process of law.
Petitioner next laments that the removal and
exclusion of the respondent in the VAWC case from
the residence of the victim, regardless of ownership
of the residence, is virtually a "blank check" issued
to the wife to claim any property as her conjugal
home. 108
The wording of the pertinent rule, however, does
not by any stretch of the imagination suggest that
this is so. It states: aIETCA
SEC. 11.Reliefs available to the offended party.
The protection order shall include any, some or all
of the following reliefs:
xxx xxx xxx
(c)Removing and excluding the respondent from
the residence of the offended party, regardless of
ownership of the residence, either temporarily for
the purpose of protecting the offended party, or
permanently where no property rights are violated.
If the respondent must remove personal effects
from the residence, the court shall direct a law
enforcement agent to accompany the respondent
to the residence, remain there until the respondent
has gathered his things and escort him from the
residence;
xxx xxx xxx
Indubitably, petitioner may be removed and
excluded from private respondent's residence,
regardless of ownership, only temporarily for the
purpose of protecting the latter. Such removal and
exclusion may be permanent only where no
property rights are violated. How then can the
private respondent just claim any property and
appropriate it for herself, as petitioner seems to
suggest?
The non-referral of a VAWC case
to a mediator is justified.
Petitioner argues that "by criminalizing run-of-the-
mill arguments, instead of encouraging mediation
and counseling, the law has done violence to the
avowed policy of the State to "protect and
strengthen the family as a basic autonomous social
institution." 109
Under Section 23 (c) of A.M. No. 04-10-11-SC, the
court shall not refer the case or any issue thereof to
a mediator. The reason behind this provision is well-
56 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
explained by the Commentary on Section 311 of
the Model Code on Domestic and Family Violence
as follows: 110
This section prohibits a court from ordering or
referring parties to mediation in a proceeding for
an order for protection. Mediation is a process by
which parties in equivalent bargaining positions
voluntarily reach consensual agreement about the
issue at hand. Violence, however, is not a subject
for compromise. A process which involves parties
mediating the issue of violence implies that the
victim is somehow at fault. In addition, mediation of
issues in a proceeding for an order of protection is
problematic because the petitioner is frequently
unable to participate equally with the person
against whom the protection order has been
sought. (Emphasis supplied)
There is no undue delegation of
judicial power to barangay officials.
Petitioner contends that protection orders involve
the exercise of judicial power which, under the
Constitution, is placed upon the "Supreme Court
and such other lower courts as may be established
by law" and, thus, protests the delegation of power
to barangay officials to issue protection orders. 111
The pertinent provision reads, as follows: HCDAac
SEC. 14.Barangay Protection Orders (BPOs); Who
May Issue and How. Barangay Protection Orders
(BPOs) refer to the protection order issued by the
Punong Barangay ordering the perpetrator to desist
from committing acts under Section 5 (a) and (b) of
this Act. A Punong Barangay who receives
applications for a BPO shall issue the protection
order to the applicant on the date of filing after ex
parte determination of the basis of the application.
If the Punong Barangay is unavailable to act on the
application for a BPO, the application shall be
acted upon by any available Barangay Kagawad.
If the BPO is issued by a Barangay Kagawad, the
order must be accompanied by an attestation by
the Barangay Kagawad that the Punong Barangay
was unavailable at the time of the issuance of the
BPO. BPOs shall be effective for fifteen (15) days.
Immediately after the issuance of an ex parte BPO,
the Punong Barangay or Barangay Kagawad shall
personally serve a copy of the same on the
respondent, or direct any barangay official to
effect its personal service.
The parties may be accompanied by a non-lawyer
advocate in any proceeding before the Punong
Barangay.
Judicial power includes the duty of the courts of
justice to settle actual controversies involving rights
which are legally demandable and enforceable,
and to determine whether or not there has been a
grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or
instrumentality of the Government. 112 On the other
hand, executive power "is generally defined as the
power to enforce and administer the laws. It is the
power of carrying the laws into practical operation
and enforcing their due observance." 113
As clearly delimited by the aforequoted provision,
the BPO issued by the Punong Barangay or, in his
unavailability, by any available Barangay
Kagawad, merely orders the perpetrator to desist
from (a) causing physical harm to the woman or
her child; and (2) threatening to cause the woman
or her child physical harm. Such function of the
Punong Barangay is, thus, purely executive in
nature, in pursuance of his duty under the Local
Government Code to "enforce all laws and
ordinances," and to "maintain public order in the
barangay." 114
We have held that "(t)he mere fact that an officer is
required by law to inquire into the existence of
certain facts and to apply the law thereto in order
to determine what his official conduct shall be and
the fact that these acts may affect private rights do
not constitute an exercise of judicial powers." 115
In the same manner as the public prosecutor
ascertains through a preliminary inquiry or
proceeding "whether there is reasonable ground to
believe that an offense has been committed and
the accused is probably guilty thereof," the Punong
Barangay must determine reasonable ground to
believe that an imminent danger of violence
against the woman and her children exists or is
about to recur that would necessitate the issuance
of a BPO. The preliminary investigation conducted
by the prosecutor is, concededly, an executive, not
a judicial, function. The same holds true with the
issuance of a BPO. DHEcCT
We need not even belabor the issue raised by
petitioner that since barangay officials and other
law enforcement agencies are required to extend
assistance to victims of violence and abuse, it
would be very unlikely that they would remain
objective and impartial, and that the chances of
acquittal are nil. As already stated, assistance by
barangay officials and other law enforcement
agencies is consistent with their duty to enforce the
law and to maintain peace and order.
Conclusion
Before a statute or its provisions duly challenged are
voided, an unequivocal breach of, or a clear
conflict with the Constitution, not merely a doubtful
or argumentative one, must be demonstrated in
such a manner as to leave no doubt in the mind of
the Court. In other words, the grounds for nullity
must be beyond reasonable doubt. 116 In the
instant case, however, no concrete evidence and
convincing arguments were presented by
petitioner to warrant a declaration of the
unconstitutionality of R.A. 9262, which is an act of
Congress and signed into law by the highest officer
of the co-equal executive department. As we said
in Estrada v. Sandiganbayan, 117 courts must
assume that the legislature is ever conscious of the
borders and edges of its plenary powers, and
passed laws with full knowledge of the facts and for
the purpose of promoting what is right and
advancing the welfare of the majority.
We reiterate here Justice Puno's observation that
"the history of the women's movement against
57 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
domestic violence shows that one of its most
difficult struggles was the fight against the violence
of law itself. If we keep that in mind, law will not
again be a hindrance to the struggle of women for
equality but will be its fulfillment." 118 Accordingly,
the constitutionality of R.A. 9262 is, as it should be,
sustained.
WHEREFORE, the instant petition for review on
certiorari is hereby DENIED for lack of merit.
SO ORDERED.
Sereno, C.J., Carpio, Velasco, Jr., Bersamin, Del
Castillo, Villarama, Jr., Perez, Mendoza and Reyes,
JJ., concur.
Leonardo-de Castro, Abad and Leonen, JJ., see
separate concurring opinion.
Brion, J., see: concurring opinion.
Peralta, J., is on official leave.
(Himagan v. People, G.R. No. 113811, October 07,
1994)
EN BANC
[G.R. No. 113811. October 7, 1994.]
ISHMAEL HIMAGAN, petitioner, vs. PEOPLE OF THE
PHILIPPINES and HON. JUDGE HILARIO MAPAYO,
RTC, Br. 11, Davao City, respondents.
DECISION
KAPUNAN, J p:
Petitioner, a policeman assigned with the medical
company of the Philippine National Police Regional
Headquarters at Camp Catitigan, Davao City, was
implicated in the killing of Benjamin Machitar, Jr.
and the attempted murder of Barnabe Machitar.
After the informations for murder 1 and attempted
murder 2 were filed with the Regional Trial Court,
Branch 11, Davao City, on September 16, 1992, the
trial court issued an Order suspending petitioner
until the termination of the case on the basis of
Section 47, R.A. 6975, otherwise known as
Department of Interior and Local Government Act
of 1990, which provides:
Sec. 47. Preventive Suspension Pending Criminal
Case. Upon the filing of a complaint or
information sufficient in form and substance against
a member of the PNP for grave felonies where the
penalty imposed by law is six (6) years and one (1)
day or more, the court shall immediately suspend
the accused from office until the case is
terminated. Such case shall be subject to
continuous trial and shall be terminated within
ninety (90) days from arraignment of the accused.
(Emphasis ours). LibLex
On October 11, 1993, petitioner filed a motion to lift
the order for his suspension, 3 relying on Section 42
of P.D. 807 or the Civil Service Decree, that his
suspension should be limited to ninety (90) days
and, also, on our ruling in Deloso v. Sandiganbayan,
4 and Layno v. Sandiganbayan. 5 In his order dated
December 14, 1993 6 respondent judge denied the
motion pointing out that under section 47 of R.A.
6975, the accused shall be suspended from office
until his case is terminated. The motion for
reconsideration of the order of denial was, likewise,
denied. 7 Hence, the petition for certiorari and
mandamus to set aside the orders of respondent
Judge and to command him to lift petitioner's
preventive suspension.
We find the petition devoid of merit.
There is no question that the case of petitioner who
is charged with murder and attempted murder
under the Revised Penal Code falls squarely under
Sec. 47 of RA 6975 which specifically applies to
members of the PNP. In dispute however, is whether
the provision limits the period of suspension to 90
days, considering that while the first sentence of
Sec. 47 provides that the accused who is charged
with grave felonies where the penalty imposed is six
(6) years and one (1) day shall be suspended from
office "until the case is terminated", the second
sentence of the same section mandates that the
case, which shall be subject to continuous trial, shall
be terminated within 90 days from the arraignment
of the accused.
Petitioner posits that as a member of the Philippine
National Police, under Sec. 91 of RA 6975 which
reads:
Sec. 91. The Civil Service Law and its implementing
rules and regulations shall apply to all personnel of
the Department.
he is covered by the Civil Service Law, particularly
Sec. 42 of PD 807 of the Civil Service Decree, which
limits the maximum period of suspension to ninety
(90) days, thus:
Sec. 42. Lifting of Preventive Suspension Pending
Administrative Investigation. When the
administrative case against the officer or employee
under preventive suspension is not finally decided
by the disciplining authority within the period of
ninety (90) days after the date of suspension of the
respondent who is not a presidential appointee, the
respondent shall be automatically reinstated in the
service; Provided, That when the delay in the
disposition of the case is due to the fault,
negligence or petition of the respondent, the
period of delay shall not be counted in computing
the period of suspension herein provided. cdll
He claims that an imposition of preventive
suspension of over 90 days is contrary to the Civil
Service Law and would be a violation of his
constitutional right to equal protection of laws. He
further asserts that the requirements in Sec. 47 of
R.A. 6975 that "the court shall immediately suspend
the accused from office until the case is
terminated" and the succeeding sentence, "Such
case shall be subject to continuous trial and shall
be terminated within ninety (90) days from
arraignment of the accused" are both substantive
and should be taken together to mean that if the
case is not terminated within 90 days, the period of
preventive suspension must be lifted because of the
command that the trial must be terminated within
ninety (90) days from arraignment.
We disagree.
First. The language of the first sentence of Sec. 47 of
R.A. 6975 is clear, plain and free from ambiguity. It
gives no other meaning than that the suspension
from office of the member of the PNP charged with
grave offense where the penalty is six years and
one day or more shall last until the termination of
58 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
the case. The suspension cannot be lifted before
the termination of the case. The second sentence
of the same Section providing that the trial must be
terminated within ninety (90) days from arraignment
does not qualify or limit the first sentence. The two
can stand independently of each other. The first
refers to the period of suspension. The second deals
with the time from within which the trial should be
finished.
Suppose the trial is not terminated within ninety
days from arraignment, should the suspension of
accused be lifted? The answer is certainly no. While
the law uses the mandatory word "shall" before the
phrase "be terminated within ninety (90) days",
there is nothing in R.A. 6975 that suggests that the
preventive suspension of the accused will be lifted if
the trial is not terminated within that period.
Nonetheless, the Judge who fails to decide the
case within the period without justifiable reason
may be subject to administrative sanctions and, in
appropriate cases where the facts so warrant, to
criminal 8 or civil liability. 9 If the trial is unreasonably
delayed without fault of the accused such that he
is deprived of his right to a speedy trial, he is not
without a remedy. He may ask for the dismissal of
the case. Should the court refuse to dismiss the
case, the accused can compel its dismissal by
certiorari, prohibition or mandamus, or secure his
liberty by habeas corpus. 10
Second. Petitioner misapplies Sec. 42 of PD 807. A
meticulous reading of the section clearly shows that
it refers to the lifting of preventive suspension in
pending administrative investigation, not in criminal
cases, as here. What is more, Section 42 expressly
limits the period of preventive suspension to ninety
(90) days. Sec. 91 of R.A. 6975 which states that "The
Civil Service Law and its implementing rules shall
apply to all personnel of the Department" simply
means that the provisions of the Civil Service Law
and its implementing rules and regulations are
applicable to members of the Philippine National
Police insofar as the provisions, rules and regulations
are not inconsistent with R.A. 6975. Certainly,
Section 42 of the Civil Service Decree which limits
the preventive suspension to ninety (90) days
cannot apply to members of the PNP because Sec.
47 of R.A. 6995 provides differently, that is, the
suspension where the penalty imposed by law
exceeds six (6) years shall continue until the case is
terminated.
Third. Petitioner's reliance on Layno and Deloso is
misplaced. These cases all stemmed from charges
in violation of R.A. 3019 (1060), otherwise known as
the Anti-Graft and Corrupt Practices Act which,
unlike R.A. 6975, is silent on the duration of the
preventive suspension. Sec. 13 of R.A. 3019 reads as
follows:
Suspension and loss of benefits. Any public officer
against whom any criminal prosecution under a
valid information under this Act or under the
provisions of the Revised Penal Code on bribery is
pending in court, shall be suspended from office.
Should he be convicted by final judgment, he shall
lose all retirement of gratuity benefits under any
law, but if he is acquitted, he shall be entitled to
reinstatement and to the salaries and benefits
which he failed to receive during suspension, unless
in the meantime administrative proceedings have
been filed against him.
In the case of Layno, the duly elected mayor of
Lianga, Surigao del Sur, was preventively
suspended after an information was filed against
him for offenses under R.A. 3019 (1060), the Anti-
Graft Corrupt Practices Act. He had been
suspended for four (4) months at the time he filed a
motion to lift his preventive suspension. We held
that his indefinite preventive suspension violated
the "equal protection clause" and shortened his
term of office. Thus:
2. Petitioner is a duly elected municipal mayor of
Lianga, Surigao del Sur. His term of office does not
expire until 1986. Were it not for this information and
the suspension decreed by the Sandiganbayan
according to the Anti-Graft and Corrupt Practices
Act, he would have been all this while in the full
discharge of his functions as such municipal mayor.
He was elected precisely to do so. As of October
26, 1983, he has been unable to. It is a basic
assumption of the electoral process implicit in the
right of suffrage that the people are entitled to the
services of elective officials of their choice. For
misfeasance or malfeasance, any of them could, of
course, be proceeded against administratively or,
as in this instance, criminally. In either case, his
culpability must be established. Moreover, if there
be a criminal action, he is entitled to the
constitutional presumption of innocence. A
preventive suspension may be justified. Its
continuance, however, for an unreasonable length
of time raises a due process question. For even if
thereafter he were acquitted, in the meanwhile his
right to hold office had been nullified. Clearly, there
would be in such a case an injustice suffered by
him. Nor is he the only victim. There is injustice
inflicted likewise on the people of Lianga. They
were deprived of the services of the man they had
elected to serve as mayor. In that sense, to
paraphrase Justice Cardozo, the protracted
continuance of this preventive suspension had
outrun the bounds of reason and resulted in sheer
oppression. A denial of due process is thus quite
manifest. It is to avoid such an unconstitutional
application that the order of suspension should be
lifted. prLL
3. Nor is it solely the denial of procedural due
process that is apparent. There is likewise an equal
protection question. If the case against petitioner
Layno were administrative in character the Local
Government Code would be applicable. It is
therein clearly provided that while preventive
suspension is allowable for the causes therein
enumerated, there is this emphatic limitation on the
duration thereof: "In all cases, preventive suspension
shall not extend beyond sixty days after the start of
said suspension." It may be recalled that the
principle against indefinite suspension applies
equally to national government officials. So it was
held in the leading case of Garcia v. Hon. Executive
Secretary. According to the opinion of Justice
Barrera: "To adopt the theory of respondents that
an officer appointed by the President, facing
administrative charges, can be preventively
suspended indefinitely, would be to countenance a
situation where the preventive suspension can, in
59 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
effect, be the penalty itself without a finding of guilt
after due hearing, contrary to the express mandate
of the Constitution and the Civil Service law."
Further: "In the guise of a preventive suspension, his
term of office could be shortened and he could in
effect, be removed without a finding of a cause
duly established after due hearing, in violation of
the Constitution. Clearly then, the policy of the law
mandated by the Constitution frowns at a
suspension of indefinite duration. In this particular
case, the mere fact that petitioner is facing a
charge under the Anti-Graft and Corrupt Practices
Act does not justify a different rule of law. To do so
would be to negate the safeguard of the equal
protection guarantee." 11
The case of Deloso, likewise, involved another
elective official who was preventively suspended as
provincial governor, also under RA 3019 the Anti-
Graft Law. This Court, faced with similar factual
circumstances as in Layno, applied the ruling in the
latter case "in relation to the principles of due
process and equal protection."
It is readily apparent that Section 13 of R.A. 3019
upon which the preventive suspension of the
accused in Layno and Deloso was based is silent
with respect to the duration of the preventive
suspension, such that the suspension of the
accused therein for a prolonged and unreasonable
length of time raised a due process question. Not so
in the instant case. Petitioner is charged with
murder under the Revised Penal Code and it is
undisputed that he falls squarely under Sec. 47 of R.
A. 6995 which categorically states that his
suspension shall last until the case is terminated. The
succeeding sentence of the same section requires
the case to be subjected to continuous trial which
shall be terminated within ninety (90) days from
arraignment of the accused. As previously
emphasized, nowhere in the law does it say that
after the lapse of the 90-day period for trial, the
preventive suspension should be lifted. The law is
clear, the ninety (90) days duration applies to the
trial of the case not to the suspension. Nothing else
should be read into the law. When the words and
phrases of the statute are clear and unequivocal,
their meaning determined from the language
employed and the statute must be taken to mean
exactly what it says. 12
Fourth. From the deliberations of the Bicameral
Conference Committee on National Defense
relative to the bill that became R.A. 6975, the
meaning of Section 47 of R.A. 6975 insofar as the
period of suspension is concerned becomes all the
more clear. We quote:
So other than that in that particular section, ano ba
itong 'Jurisdiction in Criminal Cases?' What is this all
about?
REP. ZAMORA. In case they are charged with
crimes.
THE CHAIRMAN (SEN. MACEDA). Ah, the previous
one is administrative, no. Now, if it is charged with a
crime, regular courts.
SEN. GONZALES. Ano, the courts mismo ang
magsasabing . . .
THE CHAIRMAN (SEN. MACEDA). No, the jurisdiction.
REP. ZAMORA. The jurisdiction if there is robbery.
THE CHAIRMAN (SEN. MACEDA). Okay. 'Preventive
Suspension Pending Criminal Case. Upon the filing
of a complaint or informations sufficient in form and
substance against a member of the PNP for grave
felonies where the penalty imposed by law is six
years and one day or more, the court shall
immediately suspend the accused from the office
until the case is terminated.' REP. ALBANO. Where
are we now Mr. Chairman.
THE CHAIRMAN (SEN. MACEDA). Grave felonies ito
e. Six years and one day or more.
SEN. SAGUISAG. Kung five years and litigation ng
Supreme Court, ganoon ba and . . .?
THE CHAIRMAN (SEN. MACEDA). Hindi, dahil iyong
iba panay disciplinary iyon e.
SEN. PIMENTEL. Anong page iyan, Rene?
THE CHAIRMAN (SEN. MACEDA). Page 29
Preventive Suspension.
REP. GUTANG. Ang complaint kasi ng mga tao,
pagka may pulis na may criminal case at may baril
pa rin at nag-uuniforme, hindi magandang tingnan
e. So parang natatakot iyong mga witnesses.
SEN. GONZALES. Anyway, kung ma-exempt na rito
naman siya e.
REP. GUTANG. Mayroong entitlement to
reinstatement and pay . . .
xxx xxx xxx
SEN. PIMENTEL. Dito sa 'Preventive Suspension
Pending Criminal Case.' Okay ito but I think we
should also mandate the early termination of the
case. Ibig sabihin, okay, hindi ba 'the suspension of
the accused from office until the case is
terminated?' Alam naman natin ang takbo ng mga
kaso rito sa ating bansa e.
REP. ZAMORA. Twenty days, okay na.
SEN. PIMENTEL. Hindi, ibig kong sabihin, let us just
assume that a case can be, as Rene pointed out,
can run to six years bago ma-terminate, sometimes
ten years pa nga e. Okay, but maybe we should
mandate . . .
REP. ZAMORA. Continuous hearing.
SEN. PIMENTEL. Not only that, but the case must be
terminated within a period.
REP. ALBANO. Ninety days na ho sa Supreme Court
the trial.
SEN. PIMENTEL. Ha?
REP. ALBANO. The trial must be done within ninety
days.
SEN. PIMENTEL. Ang ibig kong sabihin kung maari
sanang ilagay rito that the case shall also be
terminated in one year from the time . aywan ko
kung kaya nating gawin iyon. REP. ALBANO. One
resolution, Mr. Chairman.
THE CHAIRMAN (SEN. MACEDA). Criminal case?
Hindi ba that has all been held as directory even if
you put it in the law?
SEN. PIMENTEL. I know, but, iyon na nga, we are
looking at some solution to a particular situation.
SEN. ANGARA. Let's have continuous hearing and
be terminated not later than ninety days.
REP. ZAMORA. Ang point ni Ernie, that's really only
the directory. All of these, well, looks exactly the
same thing.
SEN. ANGARA. No, but at least, we will shorten it up
in a case like this. We are really keen on having it
quick, swift.
SEN. PIMENTEL. Swift justice.
REP. ALBANO. Mr. Chairman.
THE CHAIRMAN. (SEN. MACEDA). Yes.
60 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
REP. ALBANO. Following the Veloso case in Anti-
graft cases before the Sandiganbayan, the
preventive suspension is only ninety days. In no case
shall it go beyond ninety days which can also be
applicable here because this is a preventive
suspension.
SEN. PIMENTEL. No, because you can legislate at
least.
SEN. SAGUISAG. But then the case may be anti-
graft ha. The case filed against a policeman may
be anti-graft in nature . . .
SEN. PIMENTEL. Correct, correct, but is that a
constitutional provision? Is it?
REP. ALBANO. No, but as a standard procedure.
SEN. PIMENTEL. Then you can legislate.
THE CHAIRMAN (SEN. MACEDA). No, because this
particular provision is for criminal cases. I know anti-
graft is a criminal case but here we are talking, let's
say, of murder, rape, treason, robbery. That's why it
is in that context that there is a difference between
a purely anti-graft case and a criminal case which
should be a serious case since it is six years and one
day or more, so it must be already a grave felony.
xxx xxx xxx
REP. ALBANO. What I mean to say is, preventive
suspension, we can use the Veloso case.
THE CHAIRMAN (SEN. MACEDA). No, that's too short,
that's what I am saying. The feeling here is, for
policeman, we have to be stricter especially if it is a
criminal case.
What Rene is just trying to say is, he is agreeable
that the suspension is until the case is terminated,
but he just wants some administrative balancing to
expedite it. So let us study what kind of language
could be done along that line. So just on the
National Police Commission.
SEN. ANGARA. Can I suggest a language that may
reflect . . .
THE CHAIRMAN (SEN MACEDA). Okay, please.
SEN. ANGARA. 'Such case shall be subject to
continuous trial and be terminated not later than . .
.' whatever we agree.
THE CHAIRMAN (SEN. MACEDA). Okay, so let's study
that.
So if there are any further amendments to Chapter
2 on the National Police Commission . . . 13
The foregoing discussions reveal the legislative
intent to place on preventive suspension a member
of the PNP charged with grave felonies where the
penalty imposed by law exceeds six years of
imprisonment and which suspension continues until
the case against him is terminated.
The reason why members of the PNP are treated
differently from the other classes of persons
charged criminally or administratively insofar as the
application of the rule on preventive suspension is
concerned is that policemen carry weapons and
the badge of the law which can be used to harass
or intimidate witnesses against them, as succinctly
brought out in the legislative discussions. LLjur
If a suspended policeman criminally charged with a
serous offense is reinstated to his post while his case
is pending, his victim and the witnesses against him
are obviously exposed to constant threat and thus
easily cowed to silence by the mere fact that the
accused is in uniform and armed. the imposition of
preventive suspension for over 90 days under
Section 47 of R.A. 6975 does not violate the
suspended policeman's constitutional right to equal
protection of the laws.
The equal protection clause exists to prevent undue
favor or privilege. It is intended to eliminate
discrimination and oppression based on inequality.
Recognizing the existence of real differences
among men, the equal protection clause does not
demand absolute equality. It merely requires that
all persons shall be treated alike, under like
circumstances and conditions both as to the
privileges conferred and liabilities enforced. 14 Thus,
the equal protection clause does not absolutely
forbid classifications, such as the one which exists in
the instant case. If the classification is based on real
and substantial differences; 15 is germane to the
purpose of the law; 16 applies to all members of the
same class; 17 and applies to current as well as
future conditions, 18 the classification may not be
impugned as violating the Constitution's equal
protection guarantee. A distinction based on real
and reasonable considerations related to a proper
legislative purpose such as that which exists here is
neither unreasonable, capricious nor unfounded.
ACCORDINGLY, the petition is hereby DISMISSED.
SO ORDERED.
Narvasa, C.J., Cruz, Regalado, Davide, Jr., Romero,
Bellosillo, Melo, Quiason, Puno, Vitug and Mendoza,
JJ., concur.
Feliciano, Padilla and Bidin, JJ., concur.
(Quinto v. COMELEC, G.R. No. 189698, February 22,
2010)
EN BANC
[G.R. No. 189698. February 22, 2010.]
ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR.,
petitioners, vs. COMMISSION ON ELECTIONS,
respondent.
RESOLUTION
PUNO, C.J p:
Upon a careful review of the case at bar, this Court
resolves to grant the respondent Commission on
Elections' (COMELEC) motion for reconsideration,
and the movants-intervenors' motions for
reconsideration-in-intervention, of this Court's
December 1, 2009 Decision (Decision). 1
The assailed Decision granted the Petition for
Certiorari and Prohibition filed by Eleazar P. Quinto
and Gerino A. Tolentino, Jr. and declared as
unconstitutional the second proviso in the third
paragraph of Section 13 of Republic Act No. 9369, 2
Section 66 of the Omnibus Election Code 3 and
Section 4 (a) of COMELEC Resolution No. 8678, 4
mainly on the ground that they violate the equal
protection clause of the Constitution and suffer
from overbreadth. The assailed Decision thus paved
the way for public appointive officials to continue
discharging the powers, prerogatives and functions
of their office notwithstanding their entry into the
political arena.
In support of their respective motions for
reconsideration, respondent COMELEC and
movants-intervenors submit the following
arguments:
61 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
(1) The assailed Decision is contrary to, and/or
violative of, the constitutional proscription against
the participation of public appointive officials and
members of the military in partisan political activity;
(2) The assailed provisions do not violate the equal
protection clause when they accord differential
treatment to elective and appointive officials,
because such differential treatment rests on
material and substantial distinctions and is germane
to the purposes of the law; cDaEAS
(3) The assailed provisions do not suffer from the
infirmity of overbreadth; and
(4) There is a compelling need to reverse the
assailed Decision, as public safety and interest
demand such reversal.
We find the foregoing arguments meritorious.
I.
Procedural Issues
First, we shall resolve the procedural issues on the
timeliness of the COMELEC's motion for
reconsideration which was filed on December 15,
2009, as well as the propriety of the motions for
reconsideration-in-intervention which were filed
after the Court had rendered its December 1, 2009
Decision.
i. Timeliness of COMELEC's Motion for
Reconsideration
Pursuant to Section 2, Rule 56-A of the 1997 Rules of
Court, 5 in relation to Section 1, Rule 52 of the same
rules, 6 COMELEC had a period of fifteen days from
receipt of notice of the assailed Decision within
which to move for its reconsideration. COMELEC
received notice of the assailed Decision on
December 2, 2009, hence, had until December 17,
2009 to file a Motion for Reconsideration.
The Motion for Reconsideration of COMELEC was
timely filed. It was filed on December 14, 2009. The
corresponding Affidavit of Service (in substitution of
the one originally submitted on December 14, 2009)
was subsequently filed on December 17, 2009 still
within the reglementary period.
ii. Propriety of the Motions for Reconsideration-in-
Intervention
Section 1, Rule 19 of the Rules of Court provides:
A person who has legal interest in the matter in
litigation or in the success of either of the parties, or
an interest against both, or is so situated as to be
adversely affected by a distribution or other
disposition of property in the custody of the court or
of an officer thereof may, with leave of court, be
allowed to intervene in the action. The court shall
consider whether or not the intervention will unduly
delay or prejudice the adjudication of the rights of
the original parties, and whether or not the
intervenor's rights may be fully protected in a
separate proceeding.
Pursuant to the foregoing rule, this Court has held
that a motion for intervention shall be entertained
when the following requisites are satisfied: (1) the
would-be intervenor shows that he has a substantial
right or interest in the case; and (2) such right or
interest cannot be adequately pursued and
protected in another proceeding. 7 SCIacA
Upon the other hand, Section 2, Rule 19 of the Rules
of Court provides the time within which a motion for
intervention may be filed, viz.:
SECTION 2. Time to intervene. The motion for
intervention may be filed at any time before
rendition of judgment by the trial court. A copy of
the pleading-in-intervention shall be attached to
the motion and served on the original parties.
(italics supplied)
This rule, however, is not inflexible. Interventions
have been allowed even beyond the period
prescribed in the Rule, when demanded by the
higher interest of justice. Interventions have also
been granted to afford indispensable parties, who
have not been impleaded, the right to be heard
even after a decision has been rendered by the
trial court, 8 when the petition for review of the
judgment has already been submitted for decision
before the Supreme Court, 9 and even where the
assailed order has already become final and
executory. 10 In Lim v. Pacquing, 11 the motion for
intervention filed by the Republic of the Philippines
was allowed by this Court to avoid grave injustice
and injury and to settle once and for all the
substantive issues raised by the parties.
In fine, the allowance or disallowance of a motion
for intervention rests on the sound discretion of the
court 12 after consideration of the appropriate
circumstances. 13 We stress again that Rule 19 of
the Rules of Court is a rule of procedure whose
object is to make the powers of the court fully and
completely available for justice. 14 Its purpose is not
to hinder or delay, but to facilitate and promote
the administration of justice. 15
We rule that, with the exception of the IBP-Cebu
City Chapter, all the movants-intervenors may
properly intervene in the case at bar.
First, the movants-intervenors have each sufficiently
established a substantial right or interest in the case.
As a Senator of the Republic, Senator Manuel A.
Roxas has a right to challenge the December 1,
2009 Decision, which nullifies a long established law;
as a voter, he has a right to intervene in a matter
that involves the electoral process; and as a public
officer, he has a personal interest in maintaining the
trust and confidence of the public in its system of
government.
On the other hand, former Senator Franklin M. Drilon
and Tom V. Apacible are candidates in the May
2010 elections running against appointive officials
who, in view of the December 1, 2009 Decision,
have not yet resigned from their posts and are not
likely to resign from their posts. They stand to be
62 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
directly injured by the assailed Decision, unless it is
reversed.
Moreover, the rights or interests of said movants-
intervenors cannot be adequately pursued and
protected in another proceeding. Clearly, their
rights will be foreclosed if this Court's Decision
attains finality and forms part of the laws of the
land.
With regard to the IBP-Cebu City Chapter, it
anchors its standing on the assertion that "this case
involves the constitutionality of elections laws for this
coming 2010 National Elections," and that "there is a
need for it to be allowed to intervene . . . so that
the voice of its members in the legal profession
would also be heard before this Highest Tribunal as
it resolves issues of transcendental importance." 16
SDHacT
Prescinding from our rule and ruling case law, we
find that the IBP-Cebu City Chapter has failed to
present a specific and substantial interest sufficient
to clothe it with standing to intervene in the case at
bar. Its invoked interest is, in character, too
indistinguishable to justify its intervention.
We now turn to the substantive issues.
II.
Substantive Issues
The assailed Decision struck down Section 4 (a) of
Resolution 8678, the second proviso in the third
paragraph of Section 13 of Republic Act (RA) 9369,
and Section 66 of the Omnibus Election Code, on
the following grounds:
(1) They violate the equal protection clause of the
Constitution because of the differential treatment
of persons holding appointive offices and those
holding elective positions;
(2) They are overbroad insofar as they prohibit the
candidacy of all civil servants holding appointive
posts: (a) without distinction as to whether or not
they occupy high/influential positions in the
government, and (b) they limit these civil servants'
activity regardless of whether they be partisan or
nonpartisan in character, or whether they be in the
national, municipal or barangay level; and
(3) Congress has not shown a compelling state
interest to restrict the fundamental right of these
public appointive officials.
We grant the motions for reconsideration. We now
rule that Section 4 (a) of Resolution 8678, Section 66
of the Omnibus Election Code, and the second
proviso in the third paragraph of Section 13 of RA
9369 are not unconstitutional, and accordingly
reverse our December 1, 2009 Decision.
III.
Section 4 (a) of COMELEC Resolution 8678
Compliant with Law
Section 4 (a) of COMELEC Resolution 8678 is a
faithful reflection of the present state of the law and
jurisprudence on the matter, viz.:

Incumbent Appointive Official. Under Section 13
of RA 9369, which reiterates Section 66 of the
Omnibus Election Code, any person holding a
public appointive office or position, including active
members of the Armed Forces of the Philippines,
and officers and employees in government-owned
or -controlled corporations, shall be considered ipso
facto resigned from his office upon the filing of his
certificate of candidacy.
Incumbent Elected Official. Upon the other
hand, pursuant to Section 14 of RA 9006 or the Fair
Election Act, 17 which repealed Section 67 of the
Omnibus Election Code 18 and rendered
ineffective Section 11 of R.A. 8436 insofar as it
considered an elected official as resigned only
upon the start of the campaign period
corresponding to the positions for which they are
running, 19 an elected official is not deemed to
have resigned from his office upon the filing of his
certificate of candidacy for the same or any other
elected office or position. In fine, an elected official
may run for another position without forfeiting his
seat. ADEHTS
These laws and regulations implement Section 2 (4),
Article IX-B of the 1987 Constitution, which prohibits
civil service officers and employees from engaging
in any electioneering or partisan political
campaign.
The intention to impose a strict limitation on the
participation of civil service officers and employees
in partisan political campaigns is unmistakable. The
exchange between Commissioner Quesada and
Commissioner Foz during the deliberations of the
Constitutional Commission is instructive:
MS. QUESADA.
xxx xxx xxx
Secondly, I would like to address the issue here as
provided in Section 1 (4), line 12, and I quote: "No
officer or employee in the civil service shall engage,
directly or indirectly, in any partisan political
activity." This is almost the same provision as in the
1973 Constitution. However, we in the government
service have actually experienced how this
provision has been violated by the direct or indirect
partisan political activities of many government
officials.
So, is the Committee willing to include certain
clauses that would make this provision more strict,
and which would deter its violation?
MR. FOZ.
Madam President, the existing Civil Service Law
and the implementing rules on the matter are more
than exhaustive enough to really prevent officers
and employees in the public service from engaging
in any form of partisan political activity. But the
problem really lies in implementation because, if
the head of a ministry, and even the superior
officers of offices and agencies of government will
themselves violate the constitutional injunction
63 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
against partisan political activity, then no string of
words that we may add to what is now here in this
draft will really implement the constitutional intent
against partisan political activity. . . . 20 (italics
supplied)
To emphasize its importance, this constitutional ban
on civil service officers and employees is presently
reflected and implemented by a number of
statutes. Section 46 (b) (26), Chapter 7 and Section
55, Chapter 8 both of Subtitle A, Title I, Book V of
the Administrative Code of 1987 respectively
provide in relevant part:
Section 44. Discipline: General Provisions:
xxx xxx xxx
(b) The following shall be grounds for disciplinary
action:
xxx xxx xxx
(26) Engaging directly or indirectly in partisan
political activities by one holding a non-political
office. TCacIE
xxx xxx xxx
Section 55. Political Activity. No officer or
employee in the Civil Service including members of
the Armed Forces, shall engage directly or indirectly
in any partisan political activity or take part in any
election except to vote nor shall he use his official
authority or influence to coerce the political activity
of any other person or body. Nothing herein
provided shall be understood to prevent any officer
or employee from expressing his views on current
political problems or issues, or from mentioning the
names of his candidates for public office whom he
supports: Provided, That public officers and
employees holding political offices may take part in
political and electoral activities but it shall be
unlawful for them to solicit contributions from their
subordinates or subject them to any of the acts
involving subordinates prohibited in the Election
Code.
Section 261 (i) of Batas Pambansa Blg. 881 (the
Omnibus Election Code) further makes intervention
by civil service officers and employees in partisan
political activities an election offense, viz.:
SECTION 261. Prohibited Acts. The following shall
be guilty of an election offense:
xxx xxx xxx
(i) Intervention of public officers and employees.
Any officer or employee in the civil service, except
those holding political offices; any officer,
employee, or member of the Armed Forces of the
Philippines, or any police force, special forces,
home defense forces, barangay self-defense units
and all other para-military units that now exist or
which may hereafter be organized who, directly or
indirectly, intervenes in any election campaign or
engages in any partisan political activity, except to
vote or to preserve public order, if he is a peace
officer.
The intent of both Congress and the framers of our
Constitution to limit the participation of civil service
officers and employees in partisan political activities
is too plain to be mistaken.
But Section 2 (4), Article IX-B of the 1987 Constitution
and the implementing statutes apply only to civil
servants holding apolitical offices. Stated differently,
the constitutional ban does not cover elected
officials, notwithstanding the fact that "[t]he civil
service embraces all branches, subdivisions,
instrumentalities, and agencies of the Government,
including government-owned or controlled
corporations with original charters." 21 This is
because elected public officials, by the very nature
of their office, engage in partisan political activities
almost all year round, even outside of the
campaign period. 22 Political partisanship is the
inevitable essence of a political office, elective
positions included. 23
The prohibition notwithstanding, civil service officers
and employees are allowed to vote, as well as
express their views on political issues, or mention the
names of certain candidates for public office
whom they support. This is crystal clear from the
deliberations of the Constitutional Commission, viz.:
MS. AQUINO:
Mr. Presiding Officer, my proposed amendment is
on page 2, Section 1, subparagraph 4, lines 13 and
14. On line 13, between the words "any" and
"partisan," add the phrase ELECTIONEERING AND
OTHER; and on line 14, delete the word "activity"
and in lieu thereof substitute the word CAMPAIGN.
AaITCS
May I be allowed to explain my proposed
amendment?
THE PRESIDING OFFICER (Mr. Treas):
Commissioner Aquino may proceed.
MS. AQUINO:
The draft as presented by the Committee deleted
the phrase "except to vote" which was adopted in
both the 1935 and 1973 Constitutions. The phrase
"except to vote" was not intended as a guarantee
to the right to vote but as a qualification of the
general prohibition against taking part in elections.
Voting is a partisan political activity. Unless it is
explicitly provided for as an exception to this
prohibition, it will amount to disenfranchisement.
We know that suffrage, although plenary, is not an
unconditional right. In other words, the Legislature
can always pass a statute which can withhold from
any class the right to vote in an election, if public
interest so required. I would only like to reinstate the
qualification by specifying the prohibited acts so
that those who may want to vote but who are
64 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
likewise prohibited from participating in partisan
political campaigns or electioneering may vote.
MR. FOZ:
There is really no quarrel over this point, but please
understand that there was no intention on the part
of the Committee to disenfranchise any
government official or employee. The elimination of
the last clause of this provision was precisely
intended to protect the members of the civil service
in the sense that they are not being deprived of the
freedom of expression in a political contest. The last
phrase or clause might have given the impression
that a government employee or worker has no right
whatsoever in an election campaign except to
vote, which is not the case. They are still free to
express their views although the intention is not
really to allow them to take part actively in a
political campaign. 24
IV.
Section 4(a) of Resolution 8678, Section 13 of RA
9369, and
Section 66 of the Omnibus Election Code Do Not
Violate the
Equal Protection Clause
We now hold that Section 4 (a) of Resolution 8678,
Section 66 of the Omnibus Election Code, and the
second proviso in the third paragraph of Section 13
of RA 9369 are not violative of the equal protection
clause of the Constitution. DcTSHa
i. Farias, et al. v. Executive Secretary, et al. is
Controlling
In truth, this Court has already ruled squarely on
whether these deemed-resigned provisions
challenged in the case at bar violate the equal
protection clause of the Constitution in Farias, et
al. v. Executive Secretary, et al. 25
In Farias, the constitutionality of Section 14 of the
Fair Election Act, in relation to Sections 66 and 67 of
the Omnibus Election Code, was assailed on the
ground, among others, that it unduly discriminates
against appointive officials. As Section 14 repealed
Section 67 (i.e., the deemed-resigned provision in
respect of elected officials) of the Omnibus Election
Code, elected officials are no longer considered
ipso facto resigned from their respective offices
upon their filing of certificates of candidacy. In
contrast, since Section 66 was not repealed, the
limitation on appointive officials continues to be
operative they are deemed resigned when they
file their certificates of candidacy.
The petitioners in Farias thus brought an equal
protection challenge against Section 14, with the
end in view of having the deemed-resigned
provisions "apply equally" to both elected and
appointive officials. We held, however, that the
legal dichotomy created by the Legislature is a
reasonable classification, as there are material and
significant distinctions between the two classes of
officials. Consequently, the contention that Section
14 of the Fair Election Act, in relation to Sections 66
and 67 of the Omnibus Election Code, infringed on
the equal protection clause of the Constitution,
failed muster. We ruled:
The petitioners' contention, that the repeal of
Section 67 of the Omnibus Election Code pertaining
to elective officials gives undue benefit to such
officials as against the appointive ones and violates
the equal protection clause of the constitution, is
tenuous.
The equal protection of the law clause in the
Constitution is not absolute, but is subject to
reasonable classification. If the groupings are
characterized by substantial distinctions that make
real differences, one class may be treated and
regulated differently from the other. The Court has
explained the nature of the equal protection
guarantee in this manner:
The equal protection of the law clause is against
undue favor and individual or class privilege, as well
as hostile discrimination or the oppression of
inequality. It is not intended to prohibit legislation
which is limited either in the object to which it is
directed or by territory within which it is to operate.
It does not demand absolute equality among
residents; it merely requires that all persons shall be
treated alike, under like circumstances and
conditions both as to privileges conferred and
liabilities enforced. The equal protection clause is
not infringed by legislation which applies only to
those persons falling within a specified class, if it
applies alike to all persons within such class, and
reasonable grounds exist for making a distinction
between those who fall within such class and those
who do not. ADTEaI
Substantial distinctions clearly exist between
elective officials and appointive officials. The former
occupy their office by virtue of the mandate of the
electorate. They are elected to an office for a
definite term and may be removed therefrom only
upon stringent conditions. On the other hand,
appointive officials hold their office by virtue of their
designation thereto by an appointing authority.
Some appointive officials hold their office in a
permanent capacity and are entitled to security of
tenure while others serve at the pleasure of the
appointing authority.
Another substantial distinction between the two sets
of officials is that under Section 55, Chapter 8, Title I,
Subsection A. Civil Service Commission, Book V of
the Administrative Code of 1987 (Executive Order
No. 292), appointive officials, as officers and
employees in the civil service, are strictly prohibited
from engaging in any partisan political activity or
take (sic) part in any election except to vote. Under
the same provision, elective officials, or officers or
employees holding political offices, are obviously
expressly allowed to take part in political and
electoral activities.
By repealing Section 67 but retaining Section 66 of
the Omnibus Election Code, the legislators deemed
it proper to treat these two classes of officials
differently with respect to the effect on their tenure
in the office of the filing of the certificates of
65 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
candidacy for any position other than those
occupied by them. Again, it is not within the power
of the Court to pass upon or look into the wisdom of
this classification.
Since the classification justifying Section 14 of Rep.
Act No. 9006, i.e., elected officials vis--vis
appointive officials, is anchored upon material and
significant distinctions and all the persons belonging
under the same classification are similarly treated,
the equal protection clause of the Constitution is,
thus, not infringed. 26
The case at bar is a crass attempt to resurrect a
dead issue. The miracle is that our assailed Decision
gave it new life. We ought to be guided by the
doctrine of stare decisis et non quieta movere. This
doctrine, which is really "adherence to precedents,"
mandates that once a case has been decided one
way, then another case involving exactly the same
point at issue should be decided in the same
manner. 27 This doctrine is one of policy grounded
on the necessity for securing certainty and stability
of judicial decisions. As the renowned jurist
Benjamin Cardozo stated in his treatise The Nature
of the Judicial Process:
It will not do to decide the same question one way
between one set of litigants and the opposite way
between another. "If a group of cases involves the
same point, the parties expect the same decision. It
would be a gross injustice to decide alternate cases
on opposite principles. If a case was decided
against me yesterday when I was a defendant, I
shall look for the same judgment today if I am
plaintiff. To decide differently would raise a feeling
of resentment and wrong in my breast; it would be
an infringement, material and moral, of my rights."
Adherence to precedent must then be the rule
rather than the exception if litigants are to have
faith in the even-handed administration of justice in
the courts. 28 CaHAcT
Our Farias ruling on the equal protection
implications of the deemed-resigned provisions
cannot be minimalized as mere obiter dictum. It is
trite to state that an adjudication on any point
within the issues presented by the case cannot be
considered as obiter dictum. 29 This rule applies to
all pertinent questions that are presented and
resolved in the regular course of the consideration
of the case and lead up to the final conclusion,
and to any statement as to the matter on which the
decision is predicated. 30 For that reason, a point
expressly decided does not lose its value as a
precedent because the disposition of the case is, or
might have been, made on some other ground; or
even though, by reason of other points in the case,
the result reached might have been the same if the
court had held, on the particular point, otherwise
than it did. 31 As we held in Villanueva, Jr. v. Court
of Appeals, et al.: 32
. . . A decision which the case could have turned
on is not regarded as obiter dictum merely
because, owing to the disposal of the contention, it
was necessary to consider another question, nor
can an additional reason in a decision, brought
forward after the case has been disposed of on
one ground, be regarded as dicta. So, also, where
a case presents two (2) or more points, any one of
which is sufficient to determine the ultimate issue,
but the court actually decides all such points, the
case as an authoritative precedent as to every
point decided, and none of such points can be
regarded as having the status of a dictum, and one
point should not be denied authority merely
because another point was more dwelt on and
more fully argued and considered, nor does a
decision on one proposition make statements of the
court regarding other propositions dicta. 33 (italics
supplied)
ii. Classification Germane to the Purposes of the
Law
The Farias ruling on the equal protection
challenge stands on solid ground even if
reexamined.
To start with, the equal protection clause does not
require the universal application of the laws to all
persons or things without distinction. 34 What it
simply requires is equality among equals as
determined according to a valid classification. 35
The test developed by jurisprudence here and
yonder is that of reasonableness, 36 which has four
requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same
class. 37
Our assailed Decision readily acknowledged that
these deemed-resigned provisions satisfy the first,
third and fourth requisites of reasonableness. It,
however, proffers the dubious conclusion that the
differential treatment of appointive officials vis--vis
elected officials is not germane to the purpose of
the law, because "whether one holds an appointive
office or an elective one, the evils sought to be
prevented by the measure remain," viz.: SCEDaT
. . . For example, the Executive Secretary, or any
Member of the Cabinet for that matter, could wield
the same influence as the Vice-President who at
the same time is appointed to a Cabinet post (in
the recent past, elected Vice-Presidents were
appointed to take charge of national housing,
social welfare development, interior and local
government, and foreign affairs). With the fact that
they both head executive offices, there is no valid
justification to treat them differently when both file
their [Certificates of Candidacy] for the elections.
Under the present state of our law, the Vice-
President, in the example, running this time, let us
say, for President, retains his position during the
entire election period and can still use the resources
of his office to support his campaign. 38
Sad to state, this conclusion conveniently ignores
the long-standing rule that to remedy an injustice,
66 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
the Legislature need not address every
manifestation of the evil at once; it may proceed
"one step at a time." 39 In addressing a societal
concern, it must invariably draw lines and make
choices, thereby creating some inequity as to those
included or excluded. 40 Nevertheless, as long as
"the bounds of reasonable choice" are not
exceeded, the courts must defer to the legislative
judgment. 41 We may not strike down a law merely
because the legislative aim would have been more
fully achieved by expanding the class. 42 Stated
differently, the fact that a legislative classification,
by itself, is underinclusive will not render it
unconstitutionally arbitrary or invidious. 43 There is
no constitutional requirement that regulation must
reach each and every class to which it might be
applied; 44 that the Legislature must be held rigidly
to the choice of regulating all or none.
Thus, any person who poses an equal protection
challenge must convincingly show that the law
creates a classification that is "palpably arbitrary or
capricious." 45 He must refute all possible rational
bases for the differing treatment, whether or not the
Legislature cited those bases as reasons for the
enactment, 46 such that the constitutionality of the
law must be sustained even if the reasonableness of
the classification is "fairly debatable." 47 In the case
at bar, the petitioners failed and in fact did not
even attempt to discharge this heavy burden.
Our assailed Decision was likewise silent as a sphinx
on this point even while we submitted the following
thesis:
. . . [I]t is not sufficient grounds for invalidation that
we may find that the statute's distinction is unfair,
underinclusive, unwise, or not the best solution from
a public-policy standpoint; rather, we must find that
there is no reasonably rational reason for the
differing treatment. 48
In the instant case, is there a rational justification for
excluding elected officials from the operation of
the deemed resigned provisions? I submit that there
is.
An election is the embodiment of the popular will,
perhaps the purest expression of the sovereign
power of the people. 49 It involves the choice or
selection of candidates to public office by popular
vote. 50 Considering that elected officials are put in
office by their constituents for a definite term, it may
justifiably be said that they were excluded from the
ambit of the deemed resigned provisions in utmost
respect for the mandate of the sovereign will. In
other words, complete deference is accorded to
the will of the electorate that they be served by
such officials until the end of the term for which
they were elected. In contrast, there is no such
expectation insofar as appointed officials are
concerned. CaSHAc
The dichotomized treatment of appointive and
elective officials is therefore germane to the
purposes of the law. For the law was made not
merely to preserve the integrity, efficiency, and
discipline of the public service; the Legislature,
whose wisdom is outside the rubric of judicial
scrutiny, also thought it wise to balance this with the
competing, yet equally compelling, interest of
deferring to the sovereign will. 51 (emphasis in the
original)
In fine, the assailed Decision would have us
"equalize the playing field" by invalidating provisions
of law that seek to restrain the evils from running
riot. Under the pretext of equal protection, it would
favor a situation in which the evils are unconfined
and vagrant, existing at the behest of both
appointive and elected officials, over another in
which a significant portion thereof is contained. The
absurdity of that position is self-evident, to say the
least.
The concern, voiced by our esteemed colleague,
Mr. Justice Nachura, in his dissent, that elected
officials (vis--vis appointive officials) have greater
political clout over the electorate, is indeed a
matter worth exploring but not by this Court.
Suffice it to say that the remedy lies with the
Legislature. It is the Legislature that is given the
authority, under our constitutional system, to
balance competing interests and thereafter make
policy choices responsive to the exigencies of the
times. It is certainly within the Legislature's power to
make the deemed-resigned provisions applicable
to elected officials, should it later decide that the
evils sought to be prevented are of such frequency
and magnitude as to tilt the balance in favor of
expanding the class. This Court cannot and should
not arrogate unto itself the power to ascertain and
impose on the people the best state of affairs from
a public policy standpoint.
iii. Mancuso v. Taft Has Been Overruled
Finding no Philippine jurisprudence to prop up its
equal protection ruling, our assailed Decision
adverted to, and extensively cited, Mancuso v. Taft.
52 This was a decision of the First Circuit of the
United States Court of Appeals promulgated in
March 1973, which struck down as unconstitutional
a similar statutory provision. Pathetically, our
assailed Decision, relying on Mancuso, claimed:
(1) The right to run for public office is "inextricably
linked" with two fundamental freedoms freedom
of expression and association;
(2) Any legislative classification that significantly
burdens this fundamental right must be subjected
to strict equal protection review; and
(3) While the state has a compelling interest in
maintaining the honesty and impartiality of its
public work force, the deemed-resigned provisions
pursue their objective in a far too heavy-handed
manner as to render them unconstitutional.
It then concluded with the exhortation that since
"the Americans, from whom we copied the
provision in question, had already stricken down a
similar measure for being unconstitutional[,] it is
high-time that we, too, should follow suit." TCHcAE
Our assailed Decision's reliance on Mancuso is
completely misplaced. We cannot blink away the
fact that the United States Supreme Court
67 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
effectively overruled Mancuso three months after its
promulgation by the United States Court of
Appeals. In United States Civil Service Commission,
et al. v. National Association of Letter Carriers AFL-
CIO, et al. 53 and Broadrick, et al. v. State of
Oklahoma, et al., 54 the United States Supreme
Court was faced with the issue of whether statutory
provisions prohibiting federal 55 and state 56
employees from taking an active part in political
management or in political campaigns were
unconstitutional as to warrant facial invalidation.
Violation of these provisions results in dismissal from
employment and possible criminal sanctions.
The Court declared these provisions compliant with
the equal protection clause. It held that (i) in
regulating the speech of its employees, the state as
employer has interests that differ significantly from
those it possesses in regulating the speech of the
citizenry in general; (ii) the courts must therefore
balance the legitimate interest of employee free
expression against the interests of the employer in
promoting efficiency of public services; (iii) if the
employees' expression interferes with the
maintenance of efficient and regularly functioning
services, the limitation on speech is not
unconstitutional; and (iv) the Legislature is to be
given some flexibility or latitude in ascertaining
which positions are to be covered by any statutory
restrictions. 57 Therefore, insofar as government
employees are concerned, the correct standard of
review is an interest-balancing approach, a means-
end scrutiny that examines the closeness of fit
between the governmental interests and the
prohibitions in question. 58
Letter Carriers elucidated on these principles, as
follows:
Until now, the judgment of Congress, the Executive,
and the country appears to have been that
partisan political activities by federal employees
must be limited if the Government is to operate
effectively and fairly, elections are to play their
proper part in representative government, and
employees themselves are to be sufficiently free
from improper influences. The restrictions so far
imposed on federal employees are not aimed at
particular parties, groups, or points of view, but
apply equally to all partisan activities of the type
described. They discriminate against no racial,
ethnic, or religious minorities. Nor do they seek to
control political opinions or beliefs, or to interfere
with or influence anyone's vote at the polls.
But, as the Court held in Pickering v. Board of
Education, 59 the government has an interest in
regulating the conduct and 'the speech of its
employees that differ(s) significantly from those it
possesses in connection with regulation of the
speech of the citizenry in general. The problem in
any case is to arrive at a balance between the
interests of the (employee), as a citizen, in
commenting upon matters of public concern and
the interest of the (government), as an employer, in
promoting the efficiency of the public services it
performs through its employees.' Although Congress
is free to strike a different balance than it has, if it so
chooses, we think the balance it has so far struck is
sustainable by the obviously important interests
sought to be served by the limitations on partisan
political activities now contained in the Hatch Act.
HTSIEa
It seems fundamental in the first place that
employees in the Executive Branch of the
Government, or those working for any of its
agencies, should administer the law in accordance
with the will of Congress, rather than in accordance
with their own or the will of a political party. They
are expected to enforce the law and execute the
programs of the Government without bias or
favoritism for or against any political party or group
or the members thereof. A major thesis of the Hatch
Act is that to serve this great end of Government
the impartial execution of the laws it is essential
that federal employees, for example, not take
formal positions in political parties, not undertake to
play substantial roles in partisan political
campaigns, and not run for office on partisan
political tickets. Forbidding activities like these will
reduce the hazards to fair and effective
government.
There is another consideration in this judgment: it is
not only important that the Government and its
employees in fact avoid practicing political justice,
but it is also critical that they appear to the public
to be avoiding it, if confidence in the system of
representative Government is not to be eroded to
a disastrous extent.
Another major concern of the restriction against
partisan activities by federal employees was
perhaps the immediate occasion for enactment of
the Hatch Act in 1939. That was the conviction that
the rapidly expanding Government work force
should not be employed to build a powerful,
invincible, and perhaps corrupt political machine.
The experience of the 1936 and 1938 campaigns
convinced Congress that these dangers were
sufficiently real that substantial barriers should be
raised against the party in power or the party out
of power, for that matter using the thousands or
hundreds of thousands of federal employees, paid
for at public expense, to man its political structure
and political campaigns. HIDCTA
A related concern, and this remains as important as
any other, was to further serve the goal that
employment and advancement in the Government
service not depend on political performance, and
at the same time to make sure that Government
employees would be free from pressure and from
express or tacit invitation to vote in a certain way or
perform political chores in order to curry favor with
their superiors rather than to act out their own
beliefs. It may be urged that prohibitions against
coercion are sufficient protection; but for many
years the joint judgment of the Executive and
Congress has been that to protect the rights of
federal employees with respect to their jobs and
their political acts and beliefs it is not enough
merely to forbid one employee to attempt to
influence or coerce another. For example, at the
hearings in 1972 on proposed legislation for
68 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
liberalizing the prohibition against political activity,
the Chairman of the Civil Service Commission
stated that 'the prohibitions against active
participation in partisan political management and
partisan political campaigns constitute the most
significant safeguards against coercion . . ..'
Perhaps Congress at some time will come to a
different view of the realities of political life and
Government service; but that is its current view of
the matter, and we are not now in any position to
dispute it. Nor, in our view, does the Constitution
forbid it.
Neither the right to associate nor the right to
participate in political activities is absolute in any
event. 60 . . .
xxx xxx xxx
As we see it, our task is not to destroy the Act if we
can, but to construe it, if consistent with the will of
Congress, so as to comport with constitutional
limitations. (italics supplied)
Broadrick likewise definitively stated that the
assailed statutory provision is constitutionally
permissible, viz.:
Appellants do not question Oklahoma's right to
place even-handed restrictions on the partisan
political conduct of state employees. Appellants
freely concede that such restrictions serve valid
and important state interests, particularly with
respect to attracting greater numbers of qualified
people by insuring their job security, free from the
vicissitudes of the elective process, and by
protecting them from 'political extortion.' Rather,
appellants maintain that however permissible, even
commendable, the goals of s 818 may be, its
language is unconstitutionally vague and its
prohibitions too broad in their sweep, failing to
distinguish between conduct that may be
proscribed and conduct that must be permitted.
For these and other reasons, appellants assert that
the sixth and seventh paragraphs of s 818 are void
in toto and cannot be enforced against them or
anyone else.
We have held today that the Hatch Act is not
impermissibly vague. 61 We have little doubt that s
818 is similarly not so vague that 'men of common
intelligence must necessarily guess at its meaning.'
62 Whatever other problems there are with s 818, it
is all but frivolous to suggest that the section fails to
give adequate warning of what activities it
proscribes or fails to set out 'explicit standards' for
those who must apply it. In the plainest language, it
prohibits any state classified employee from being
'an officer or member' of a 'partisan political club'
or a candidate for 'any paid public office.' It forbids
solicitation of contributions 'for any political
organization, candidacy or other political purpose'
and taking part 'in the management or affairs of
any political party or in any political campaign.'
Words inevitably contain germs of uncertainty and,
as with the Hatch Act, there may be disputes over
the meaning of such terms in s 818 as 'partisan,' or
'take part in,' or 'affairs of' political parties. But what
was said in Letter Carriers, is applicable here: 'there
are limitations in the English language with respect
to being both specific and manageably brief, and
it seems to us that although the prohibitions may
not satisfy those intent on finding fault at any cost,
they are set out in terms that the ordinary person
exercising ordinary common sense can sufficiently
understand and comply with, without sacrifice to
the public interest.' . . . IAEcCT
xxx xxx xxx
[Appellants] nevertheless maintain that the statute
is overbroad and purports to reach protected, as
well as unprotected conduct, and must therefore
be struck down on its face and held to be
incapable of any constitutional application. We do
not believe that the overbreadth doctrine may
appropriately be invoked in this manner here.
xxx xxx xxx
The consequence of our departure from traditional
rules of standing in the First Amendment area is that
any enforcement of a statute thus placed at issue is
totally forbidden until and unless a limiting
construction or partial invalidation so narrows it as
to remove the seeming threat or deterrence to
constitutionally protected expression. Application of
the overbreadth doctrine in this manner is,
manifestly, strong medicine. It has been employed
by the Court sparingly and only as a last resort. . . .
. . . But the plain import of our cases is, at the very
least, that facial over-breadth adjudication is an
exception to our traditional rules of practice and
that its function, a limited one at the outset,
attenuates as the otherwise unprotected behavior
that it forbids the State to sanction moves from
'pure speech' toward conduct and that conduct-
even if expressive-falls within the scope of otherwise
valid criminal laws that reflect legitimate state
interests in maintaining comprehensive controls
over harmful, constitutionally unprotected conduct.
Although such laws, if too broadly worded, may
deter protected speech to some unknown extent,
there comes a point where that effect-at best a
prediction-cannot, with confidence, justify
invalidating a statute on its face and so prohibiting
a State from enforcing the statute against conduct
that is admittedly within its power to proscribe. To
put the matter another way, particularly where
conduct and not merely speech is involved, we
believe that the overbreadth of a statute must not
only be real, but substantial as well, judged in
relation to the statute's plainly legitimate sweep. It is
our view that s 818 is not substantially overbroad
and that whatever overbreadth may exist should
be cured through case-by-case analysis of the fact
situations to which its sanctions, assertedly, may not
be applied.
Unlike ordinary breach-of-the peace statutes or
other broad regulatory acts, s 818 is directed, by its
terms, at political expression which if engaged in by
private persons would plainly be protected by the
First and Fourteenth Amendments. But at the same
time, s 818 is not a censorial statute, directed at
69 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
particular groups or viewpoints. The statute, rather,
seeks to regulate political activity in an even-
handed and neutral manner. As indicted, such
statutes have in the past been subject to a less
exacting overbreadth scrutiny. Moreover, the fact
remains that s 818 regulates a substantial spectrum
of conduct that is as manifestly subject to state
regulation as the public peace or criminal trespass.
This much was established in United Public Workers
v. Mitchell, and has been unhesitatingly reaffirmed
today in Letter Carriers. Under the decision in Letter
Carriers, there is no question that s 818 is valid at
least insofar as it forbids classified employees from:
soliciting contributions for partisan candidates,
political parties, or other partisan political purposes;
becoming members of national, state, or local
committees of political parties, or officers or
committee members in partisan political clubs, or
candidates for any paid public office; taking part in
the management or affairs of any political party's
partisan political campaign; serving as delegates or
alternates to caucuses or conventions of political
parties; addressing or taking an active part in
partisan political rallies or meetings; soliciting votes
or assisting voters at the polls or helping in a partisan
effort to get voters to the polls; participating in the
distribution of partisan campaign literature; initiating
or circulating partisan nominating petitions; or riding
in caravans for any political party or partisan
political candidate. HAIaEc
. . . It may be that such restrictions are impermissible
and that s 818 may be susceptible of some other
improper applications. But, as presently construed,
we do not believe that s 818 must be discarded in
toto because some persons' arguably protected
conduct may or may not be caught or chilled by
the statute. Section 818 is not substantially
overbroad and it not, therefore, unconstitutional on
its face. (italics supplied)
It bears stressing that, in his Dissenting Opinion, Mr.
Justice Nachura does not deny the principles
enunciated in Letter Carriers and Broadrick. He
would hold, nonetheless, that these cases cannot
be interpreted to mean a reversal of Mancuso,
since they "pertain to different types of laws and
were decided based on a different set of facts,"
viz.:
In Letter Carriers, the plaintiffs alleged that the Civil
Service Commission was enforcing, or threatening
to enforce, the Hatch Act's prohibition against
"active participation in political management or
political campaigns." The plaintiffs desired to
campaign for candidates for public office, to
encourage and get federal employees to run for
state and local offices, to participate as delegates
in party conventions, and to hold office in a
political club.
In Broadrick, the appellants sought the invalidation
for being vague and overbroad a provision in the
(sic) Oklahoma's Merit System of Personnel
Administration Act restricting the political activities
of the State's classified civil servants, in much the
same manner as the Hatch Act proscribed partisan
political activities of federal employees. Prior to the
commencement of the action, the appellants
actively participated in the 1970 reelection
campaign of their superior, and were
administratively charged for asking other
Corporation Commission employees to do
campaign work or to give referrals to persons who
might help in the campaign, for soliciting money for
the campaign, and for receiving and distributing
campaign posters in bulk.
Mancuso, on the other hand, involves, as aforesaid,
an automatic resignation provision. Kenneth
Mancuso, a full time police officer and classified
civil service employee of the City of Cranston, filed
as a candidate for nomination as representative to
the Rhode Island General Assembly. The Mayor of
Cranston then began the process of enforcing the
resign-to-run provision of the City Home Rule
Charter.
Clearly, as the above-cited US cases pertain to
different types of laws and were decided based on
a different set of facts, Letter Carriers and Broadrick
cannot be interpreted to mean a reversal of
Mancuso. . . . (italics in the original)
We hold, however, that his position is belied by a
plain reading of these cases. Contrary to his claim,
Letter Carriers, Broadrick and Mancuso all
concerned the constitutionality of resign-to-run
laws, viz.:
(1) Mancuso involved a civil service employee who
filed as a candidate for nomination as
representative to the Rhode Island General
Assembly. He assailed the constitutionality of 14.09
(c) of the City Home Rule Charter, which prohibits
"continuing in the classified service of the city after
becoming a candidate for nomination or election
to any public office."
(2) Letter Carriers involved plaintiffs who alleged
that the Civil Service Commission was enforcing, or
threatening to enforce, the Hatch Act's prohibition
against "active participation in political
management or political campaigns" 63 with
respect to certain defined activities in which they
desired to engage. The plaintiffs relevant to this
discussion are: THEcAS
(a) The National Association of Letter Carriers, which
alleged that its members were desirous of, among
others, running in local elections for offices such as
school board member, city council member or
mayor;
(b) Plaintiff Gee, who alleged that he desired to,
but did not, file as a candidate for the office of
Borough Councilman in his local community for fear
that his participation in a partisan election would
endanger his job; and
(c) Plaintiff Myers, who alleged that he desired to
run as a Republican candidate in the 1971 partisan
election for the mayor of West Lafayette, Indiana,
and that he would do so except for fear of losing his
job by reason of violation of the Hatch Act.
70 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
The Hatch Act defines "active participation in
political management or political campaigns" by
cross-referring to the rules made by the Civil Service
Commission. The rule pertinent to our inquiry states:
30. Candidacy for local office: Candidacy for a
nomination or for election to any National, State,
county, or municipal office is not permissible. The
prohibition against political activity extends not
merely to formal announcement of candidacy but
also to the preliminaries leading to such
announcement and to canvassing or soliciting
support or doing or permitting to be done any act
in furtherance of candidacy. The fact that
candidacy, is merely passive is immaterial; if an
employee acquiesces in the efforts of friends in
furtherance of such candidacy such acquiescence
constitutes an infraction of the prohibitions against
political activity. (italics supplied)
Section 9 (b) requires the immediate removal of
violators and forbids the use of appropriated funds
thereafter to pay compensation to these persons.
64
(3) Broadrick was a class action brought by certain
Oklahoma state employees seeking a declaration
of unconstitutionality of two sub-paragraphs of
Section 818 of Oklahoma's Merit System of
Personnel Administration Act. Section 818 (7), the
paragraph relevant to this discussion, states that
"[n]o employee in the classified service shall be . . .
a candidate for nomination or election to any paid
public office . . ." Violation of Section 818 results in
dismissal from employment, possible criminal
sanctions and limited state employment ineligibility.
Consequently, it cannot be denied that Letter
Carriers and Broadrick effectively overruled
Mancuso. By no stretch of the imagination could
Mancuso still be held operative, as Letter Carriers
and Broadrick (i) concerned virtually identical
resign-to-run laws, and (ii) were decided by a
superior court, the United States Supreme Court. It
was thus not surprising for the First Circuit Court of
Appeals the same court that decided Mancuso
to hold categorically and emphatically in Magill
v. Lynch 65 that Mancuso is no longer good law. As
we priorly explained:
Magill involved Pawtucket, Rhode Island firemen
who ran for city office in 1975. Pawtucket's "Little
Hatch Act" prohibits city employees from engaging
in a broad range of political activities. Becoming a
candidate for any city office is specifically
proscribed, 66 the violation being punished by
removal from office or immediate dismissal. The
firemen brought an action against the city officials
on the ground that that the provision of the city
charter was unconstitutional. However, the court,
fully cognizant of Letter Carriers and Broadrick, took
the position that Mancuso had since lost
considerable vitality. It observed that the view that
political candidacy was a fundamental interest
which could be infringed upon only if less restrictive
alternatives were not available, was a position
which was no longer viable, since the Supreme
Court (finding that the government's interest in
regulating both the conduct and speech of its
employees differed significantly from its interest in
regulating those of the citizenry in general) had
given little weight to the argument that prohibitions
against the coercion of government employees
were a less drastic means to the same end,
deferring to the judgment of Congress, and
applying a "balancing" test to determine whether
limits on political activity by public employees
substantially served government interests which
were "important" enough to outweigh the
employees' First Amendment rights. 67 aIcCTA
It must be noted that the Court of Appeals ruled in
this manner even though the election in Magill was
characterized as nonpartisan, as it was reasonable
for the city to fear, under the circumstances of that
case, that politically active bureaucrats might use
their official power to help political friends and hurt
political foes. Ruled the court:
The question before us is whether Pawtucket's
charter provision, which bars a city employee's
candidacy in even a nonpartisan city election, is
constitutional. The issue compels us to extrapolate
two recent Supreme Court decisions, Civil Service
Comm'n v. Nat'l Ass'n of Letter Carriers and
Broadrick v. Oklahoma. Both dealt with laws barring
civil servants from partisan political activity. Letter
Carriers reaffirmed United Public Workers v. Mitchell,
upholding the constitutionality of the Hatch Act as
to federal employees. Broadrick sustained
Oklahoma's "Little Hatch Act" against constitutional
attack, limiting its holding to Oklahoma's
construction that the Act barred only activity in
partisan politics. In Mancuso v. Taft, we assumed
that proscriptions of candidacy in nonpartisan
elections would not be constitutional. Letter Carriers
and Broadrick compel new analysis.
xxx xxx xxx
What we are obligated to do in this case, as the
district court recognized, is to apply the Court's
interest balancing approach to the kind of
nonpartisan election revealed in this record. We
believe that the district court found more residual
vigor in our opinion in Mancuso v. Taft than remains
after Letter Carriers. We have particular reference
to our view that political candidacy was a
fundamental interest which could be trenched
upon only if less restrictive alternatives were not
available. While this approach may still be viable for
citizens who are not government employees, the
Court in Letter Carriers recognized that the
government's interest in regulating both the
conduct and speech of its employees differs
significantly from its interest in regulating those of
the citizenry in general. Not only was United Public
Workers v. Mitchell "unhesitatingly" reaffirmed, but
the Court gave little weight to the argument that
prohibitions against the coercion of government
employees were a less drastic means to the same
end, deferring to the judgment of the Congress. We
cannot be more precise than the Third Circuit in
characterizing the Court's approach as "some sort
of 'balancing' process". 68 It appears that the
government may place limits on campaigning by
71 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
public employees if the limits substantially serve
government interests that are "important" enough
to outweigh the employees' First Amendment rights.
. . . (italics supplied)
Upholding thus the constitutionality of the law in
question, the Magill court detailed the major
governmental interests discussed in Letter Carriers
and applied them to the Pawtucket provision as
follows:
In Letter Carriers[,] the first interest identified by the
Court was that of an efficient government, faithful
to the Congress rather than to party. The district
court discounted this interest, reasoning that
candidates in a local election would not likely be
committed to a state or national platform. This
observation undoubtedly has substance insofar as
allegiance to broad policy positions is concerned.
But a different kind of possible political intrusion into
efficient administration could be thought to
threaten municipal government: not into broad
policy decisions, but into the particulars of
administration favoritism in minute decisions
affecting welfare, tax assessments, municipal
contracts and purchasing, hiring, zoning, licensing,
and inspections. Just as the Court in Letter Carriers
identified a second governmental interest in the
avoidance of the appearance of "political justice"
as to policy, so there is an equivalent interest in
avoiding the appearance of political preferment in
privileges, concessions, and benefits. The
appearance (or reality) of favoritism that the
charter's authors evidently feared is not exorcised
by the nonpartisan character of the formal election
process. Where, as here, party support is a key to
successful campaigning, and party rivalry is the
norm, the city might reasonably fear that politically
active bureaucrats would use their official power to
help political friends and hurt political foes. This is
not to say that the city's interest in visibly fair and
effective administration necessarily justifies a
blanket prohibition of all employee campaigning; if
parties are not heavily involved in a campaign, the
danger of favoritism is less, for neither friend nor foe
is as easily identified. CScaDH
A second major governmental interest identified in
Letter Carriers was avoiding the danger of a
powerful political machine. The Court had in mind
the large and growing federal bureaucracy and its
partisan potential. The district court felt this was only
a minor threat since parties had no control over
nominations. But in fact candidates sought party
endorsements, and party endorsements proved to
be highly effective both in determining who would
emerge from the primary election and who would
be elected in the final election. Under the
prevailing customs, known party affiliation and
support were highly significant factors in Pawtucket
elections. The charter's authors might reasonably
have feared that a politically active public work
force would give the incumbent party, and the
incumbent workers, an unbreakable grasp on the
reins of power. In municipal elections especially, the
small size of the electorate and the limited powers
of local government may inhibit the growth of
interest groups powerful enough to outbalance the
weight of a partisan work force. Even when
nonpartisan issues and candidacies are at stake,
isolated government employees may seek to
influence voters or their co-workers improperly; but
a more real danger is that a central party structure
will mass the scattered powers of government
workers behind a single party platform or slate.
Occasional misuse of the public trust to pursue
private political ends is tolerable, especially
because the political views of individual employees
may balance each other out. But party discipline
eliminates this diversity and tends to make abuse
systematic. Instead of a handful of employees
pressured into advancing their immediate superior's
political ambitions, the entire government work
force may be expected to turn out for many
candidates in every election. In Pawtucket, where
parties are a continuing presence in political
campaigns, a carefully orchestrated use of city
employees in support of the incumbent party's
candidates is possible. The danger is scarcely
lessened by the openness of Pawtucket's
nominating procedure or the lack of party labels on
its ballots.
The third area of proper governmental interest in
Letter Carriers was ensuring that employees
achieve advancement on their merits and that
they be free from both coercion and the prospect
of favor from political activity. The district court did
not address this factor, but looked only to the
possibility of a civil servant using his position to
influence voters, and held this to be no more of a
threat than in the most nonpartisan of elections. But
we think that the possibility of coercion of
employees by superiors remains as strong a factor in
municipal elections as it was in Letter Carriers. Once
again, it is the systematic and coordinated
exploitation of public servants for political ends that
a legislature is most likely to see as the primary
threat of employees' rights. Political oppression of
public employees will be rare in an entirely
nonpartisan system. Some superiors may be inclined
to ride herd on the politics of their employees even
in a nonpartisan context, but without party officials
looking over their shoulders most supervisors will
prefer to let employees go their own ways.
In short, the government may constitutionally restrict
its employees' participation in nominally
nonpartisan elections if political parties play a large
role in the campaigns. In the absence of substantial
party involvement, on the other hand, the interests
identified by the Letter Carriers Court lose much of
their force. While the employees' First Amendment
rights would normally outbalance these diminished
interests, we do not suggest that they would always
do so. Even when parties are absent, many
employee campaigns might be thought to
endanger at least one strong public interest, an
interest that looms larger in the context of municipal
elections than it does in the national elections
considered in Letter Carriers. The city could
reasonably fear the prospect of a subordinate
running directly against his superior or running for a
position that confers great power over his superior.
An employee of a federal agency who seeks a
Congressional seat poses less of a direct challenge
72 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
to the command and discipline of his agency than
a fireman or policeman who runs for mayor or city
council. The possibilities of internal discussion,
cliques, and political bargaining, should an
employee gather substantial political support, are
considerable. (citations omitted) TEaADS
The court, however, remanded the case to the
district court for further proceedings in respect of
the petitioners' overbreadth charge. Noting that
invalidating a statute for being overbroad is "not to
be taken lightly, much less to be taken in the dark,"
the court held:
The governing case is Broadrick, which introduced
the doctrine of "substantial" overbreadth in a
closely analogous case. Under Broadrick, when one
who challenges a law has engaged in
constitutionally unprotected conduct (rather than
unprotected speech) and when the challenged
law is aimed at unprotected conduct, "the
overbreadth of a statute must not only be real, but
substantial as well, judged in relation to the statute's
plainly legitimate sweep." Two major uncertainties
attend the doctrine: how to distinguish speech from
conduct, and how to define "substantial"
overbreadth. We are spared the first inquiry by
Broadrick itself. The plaintiffs in that case had
solicited support for a candidate, and they were
subject to discipline under a law proscribing a wide
range of activities, including soliciting contributions
for political candidates and becoming a
candidate. The Court found that this combination
required a substantial overbreadth approach. The
facts of this case are so similar that we may reach
the same result without worrying unduly about the
sometimes opaque distinction between speech
and conduct.
The second difficulty is not so easily disposed of.
Broadrick found no substantial overbreadth in a
statute restricting partisan campaigning. Pawtucket
has gone further, banning participation in
nonpartisan campaigns as well. Measuring the
substantiality of a statute's overbreadth apparently
requires, inter alia, a rough balancing of the
number of valid applications compared to the
number of potentially invalid applications. Some
sensitivity to reality is needed; an invalid application
that is far-fetched does not deserve as much
weight as one that is probable. The question is a
matter of degree; it will never be possible to say
that a ratio of one invalid to nine valid applications
makes a law substantially overbroad. Still, an
overbreadth challenger has a duty to provide the
court with some idea of the number of potentially
invalid applications the statute permits. Often,
simply reading the statute in the light of common
experience or litigated cases will suggest a number
of probable invalid applications. But this case is
different. Whether the statute is overbroad depends
in large part on the number of elections that are
insulated from party rivalry yet closed to Pawtucket
employees. For all the record shows, every one of
the city, state, or federal elections in Pawtucket is
actively contested by political parties. Certainly the
record suggests that parties play a major role even
in campaigns that often are entirely nonpartisan in
other cities. School committee candidates, for
example, are endorsed by the local Democratic
committee.
The state of the record does not permit us to find
overbreadth; indeed such a step is not to be taken
lightly, much less to be taken in the dark. On the
other hand, the entire focus below, in the short
period before the election was held, was on the
constitutionality of the statute as applied. Plaintiffs
may very well feel that further efforts are not
justified, but they should be afforded the
opportunity to demonstrate that the charter
forecloses access to a significant number of offices,
the candidacy for which by municipal employees
would not pose the possible threats to government
efficiency and integrity which Letter Carriers, as we
have interpreted it, deems significant. Accordingly,
we remand for consideration of plaintiffs'
overbreadth claim. (italics supplied, citations
omitted)
Clearly, Letter Carriers, Broadrick, and Magill
demonstrate beyond doubt that Mancuso v. Taft,
heavily relied upon by the ponencia, has effectively
been overruled. 69 As it is no longer good law, the
ponencia's exhortation that "[since] the Americans,
from whom we copied the provision in question,
had already stricken down a similar measure for
being unconstitutional[,] it is high-time that we, too,
should follow suit" is misplaced and unwarranted. 70
Accordingly, our assailed Decision's submission that
the right to run for public office is "inextricably
linked" with two fundamental freedoms those of
expression and association lies on barren ground.
American case law has in fact never recognized a
fundamental right to express one's political views
through candidacy, 71 as to invoke a rigorous
standard of review. 72 Bart v. Telford 73 pointedly
stated that "[t]he First Amendment does not in terms
confer a right to run for public office, and this court
has held that it does not do so by implication
either." Thus, one's interest in seeking office, by itself,
is not entitled to constitutional protection. 74
Moreover, one cannot bring one's action under the
rubric of freedom of association, absent any
allegation that, by running for an elective position,
one is advancing the political ideas of a particular
set of voters. 75 HTSAEa
Prescinding from these premises, it is crystal clear
that the provisions challenged in the case at bar,
are not violative of the equal protection clause. The
deemed-resigned provisions substantially serve
governmental interests (i.e., (i) efficient civil service
faithful to the government and the people rather
than to party; (ii) avoidance of the appearance of
"political justice" as to policy; (iii) avoidance of the
danger of a powerful political machine; and (iv)
ensuring that employees achieve advancement on
their merits and that they be free from both
coercion and the prospect of favor from political
activity). These are interests that are important
enough to outweigh the non-fundamental right of
appointive officials and employees to seek elective
office.
73 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
En passant, we find it quite ironic that Mr. Justice
Nachura cites Clements v. Fashing 76 and Morial, et
al. v. Judiciary Commission of the State of Louisiana,
et al. 77 to buttress his dissent. Maintaining that
resign-to-run provisions are valid only when made
applicable to specified officials, he explains:
. . . U.S. courts, in subsequent cases, sustained the
constitutionality of resign-to-run provisions when
applied to specified or particular officials, as
distinguished from all others, 78 under a
classification that is germane to the purposes of the
law. These resign-to-run legislations were not
expressed in a general and sweeping provision,
and thus did not violate the test of being germane
to the purpose of the law, the second requisite for a
valid classification. Directed, as they were, to
particular officials, they were not overly
encompassing as to be overbroad. (emphasis in
the original)
This reading is a regrettable misrepresentation of
Clements and Morial. The resign-to-run provisions in
these cases were upheld not because they referred
to specified or particular officials (vis--vis a general
class); the questioned provisions were found valid
precisely because the Court deferred to legislative
judgment and found that a regulation is not devoid
of a rational predicate simply because it happens
to be incomplete. In fact, the equal protection
challenge in Clements revolved around the claim
that the State of Texas failed to explain why some
public officials are subject to the resign-to-run
provisions, while others are not. Ruled the United
States Supreme Court:
Article XVI, 65, of the Texas Constitution provides
that the holders of certain offices automatically
resign their positions if they become candidates for
any other elected office, unless the unexpired
portion of the current term is one year or less. The
burdens that 65 imposes on candidacy are even
less substantial than those imposed by 19. The two
provisions, of course, serve essentially the same
state interests. The District Court found 65
deficient, however, not because of the nature or
extent of the provision's restriction on candidacy,
but because of the manner in which the offices are
classified. According to the District Court, the
classification system cannot survive equal
protection scrutiny, because Texas has failed to
explain sufficiently why some elected public
officials are subject to 65 and why others are not.
As with the case of 19, we conclude that 65
survives a challenge under the Equal Protection
Clause unless appellees can show that there is no
rational predicate to the classification scheme.
TcSICH
The history behind 65 shows that it may be upheld
consistent with the "one step at a time" approach
that this Court has undertaken with regard to state
regulation not subject to more vigorous scrutiny
than that sanctioned by the traditional principles.
Section 65 was enacted in 1954 as a transitional
provision applying only to the 1954 election. Section
65 extended the terms of those offices enumerated
in the provision from two to four years. The provision
also staggered the terms of other offices so that at
least some county and local offices would be
contested at each election. The automatic
resignation proviso to 65 was not added until
1958. In that year, a similar automatic resignation
provision was added in Art. XI, 11, which applies
to officeholders in home rule cities who serve terms
longer than two years. Section 11 allows home rule
cities the option of extending the terms of municipal
offices from two to up to four years.
Thus, the automatic resignation provision in Texas is
a creature of the State's electoral reforms of 1958.
That the State did not go further in applying the
automatic resignation provision to those
officeholders whose terms were not extended by
11 or 65, absent an invidious purpose, is not the
sort of malfunctioning of the State's lawmaking
process forbidden by the Equal Protection Clause.
A regulation is not devoid of a rational predicate
simply because it happens to be incomplete. The
Equal Protection Clause does not forbid Texas to
restrict one elected officeholder's candidacy for
another elected office unless and until it places
similar restrictions on other officeholders. The
provision's language and its history belie any notion
that 65 serves the invidious purpose of denying
access to the political process to identifiable
classes of potential candidates. (citations omitted
and italics supplied)
Furthermore, it is unfortunate that the dissenters
took the Morial line that "there is no blanket
approval of restrictions on the right of public
employees to become candidates for public office"
out of context. A correct reading of that line readily
shows that the Court only meant to confine its ruling
to the facts of that case, as each equal protection
challenge would necessarily have to involve
weighing governmental interests vis--vis the
specific prohibition assailed. The Court held:
The interests of public employees in free expression
and political association are unquestionably
entitled to the protection of the first and fourteenth
amendments. Nothing in today's decision should be
taken to imply that public employees may be
prohibited from expressing their private views on
controversial topics in a manner that does not
interfere with the proper performance of their
public duties. In today's decision, there is no blanket
approval of restrictions on the right of public
employees to become candidates for public office.
Nor do we approve any general restrictions on the
political and civil rights of judges in particular. Our
holding is necessarily narrowed by the
methodology employed to reach it. A requirement
that a state judge resign his office prior to
becoming a candidate for non-judicial office bears
a reasonably necessary relation to the
achievement of the state's interest in preventing the
actuality or appearance of judicial impropriety.
Such a requirement offends neither the first
amendment's guarantees of free expression and
association nor the fourteenth amendment's
guarantee of equal protection of the laws. (italics
supplied) cTCEIS
74 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
Indeed, the Morial court even quoted Broadrick
and stated that:
In any event, the legislature must have some
leeway in determining which of its employment
positions require restrictions on partisan political
activities and which may be left unregulated. And
a State can hardly be faulted for attempting to limit
the positions upon which such restrictions are
placed. (citations omitted)
V.
Section 4(a) of Resolution 8678, Section 13 of RA
9369,
and Section 66 of the Omnibus Election Code
Do Not Suffer from Overbreadth
Apart from nullifying Section 4 (a) of Resolution
8678, Section 13 of RA 9369, and Section 66 of the
Omnibus Election Code on equal protection
ground, our assailed Decision struck them down for
being overbroad in two respects, viz.:
(1) The assailed provisions limit the candidacy of all
civil servants holding appointive posts without due
regard for the type of position being held by the
employee seeking an elective post and the degree
of influence that may be attendant thereto; 79 and
(2) The assailed provisions limit the candidacy of
any and all civil servants holding appointive
positions without due regard for the type of office
being sought, whether it be partisan or nonpartisan
in character, or in the national, municipal or
barangay level.
Again, on second look, we have to revise our
assailed Decision.
i. Limitation on Candidacy Regardless of
Incumbent Appointive Official's Position, Valid
According to the assailed Decision, the challenged
provisions of law are overly broad because they
apply indiscriminately to all civil servants holding
appointive posts, without due regard for the type of
position being held by the employee running for
elective office and the degree of influence that
may be attendant thereto.
Its underlying assumption appears to be that the
evils sought to be prevented are extant only when
the incumbent appointive official running for
elective office holds an influential post.
Such a myopic view obviously fails to consider a
different, yet equally plausible, threat to the
government posed by the partisan potential of a
large and growing bureaucracy: the danger of
systematic abuse perpetuated by a "powerful
political machine" that has amassed "the scattered
powers of government workers" so as to give itself
and its incumbent workers an "unbreakable grasp
on the reins of power." 80 As elucidated in our prior
exposition: 81 EHTSCD
Attempts by government employees to wield
influence over others or to make use of their
respective positions (apparently) to promote their
own candidacy may seem tolerable even
innocuous particularly when viewed in isolation
from other similar attempts by other government
employees. Yet it would be decidedly foolhardy to
discount the equally (if not more) realistic and
dangerous possibility that such seemingly disjointed
attempts, when taken together, constitute a veiled
effort on the part of an emerging central party
structure to advance its own agenda through a
"carefully orchestrated use of [appointive and/or
elective] officials" coming from various levels of the
bureaucracy.
. . . [T]he avoidance of such a "politically active
public work force" which could give an emerging
political machine an "unbreakable grasp on the
reins of power" is reason enough to impose a
restriction on the candidacies of all appointive
public officials without further distinction as to the
type of positions being held by such employees or
the degree of influence that may be attendant
thereto. (citations omitted)
ii. Limitation on Candidacy
Regardless of Type of Office Sought, Valid
The assailed Decision also held that the challenged
provisions of law are overly broad because they are
made to apply indiscriminately to all civil servants
holding appointive offices, without due regard for
the type of elective office being sought, whether it
be partisan or nonpartisan in character, or in the
national, municipal or barangay level.
This erroneous ruling is premised on the assumption
that "the concerns of a truly partisan office and the
temptations it fosters are sufficiently different from
those involved in an office removed from regular
party politics [so as] to warrant distinctive
treatment," 82 so that restrictions on candidacy akin
to those imposed by the challenged provisions can
validly apply only to situations in which the elective
office sought is partisan in character. To the extent,
therefore, that such restrictions are said to preclude
even candidacies for nonpartisan elective offices,
the challenged restrictions are to be considered as
overbroad.
Again, a careful study of the challenged provisions
and related laws on the matter will show that the
alleged overbreadth is more apparent than real.
Our exposition on this issue has not been
repudiated, viz.:
A perusal of Resolution 8678 will immediately
disclose that the rules and guidelines set forth
therein refer to the filing of certificates of
candidacy and nomination of official candidates
of registered political parties, in connection with the
May 10, 2010 National and Local Elections. 83
Obviously, these rules and guidelines, including the
restriction in Section 4(a) of Resolution 8678, were
issued specifically for purposes of the May 10, 2010
National and Local Elections, which, it must be
noted, are decidedly partisan in character. Thus, it
is clear that the restriction in Section 4(a) of RA 8678
applies only to the candidacies of appointive
officials vying for partisan elective posts in the May
10, 2010 National and Local Elections. On this score,
the overbreadth challenge leveled against Section
4 (a) is clearly unsustainable. aIcDCH
75 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
Similarly, a considered review of Section 13 of RA
9369 and Section 66 of the Omnibus Election Code,
in conjunction with other related laws on the
matter, will confirm that these provisions are likewise
not intended to apply to elections for nonpartisan
public offices.
The only elections which are relevant to the present
inquiry are the elections for barangay offices, since
these are the only elections in this country which
involve nonpartisan public offices. 84
In this regard, it is well to note that from as far back
as the enactment of the Omnibus Election Code in
1985, Congress has intended that these nonpartisan
barangay elections be governed by special rules,
including a separate rule on deemed resignations
which is found in Section 39 of the Omnibus Election
Code. Said provision states:
Section 39. Certificate of Candidacy. No person
shall be elected punong barangay or kagawad ng
sangguniang barangay unless he files a sworn
certificate of candidacy in triplicate on any day
from the commencement of the election period
but not later than the day before the beginning of
the campaign period in a form to be prescribed by
the Commission. The candidate shall state the
barangay office for which he is a candidate.
xxx xxx xxx
Any elective or appointive municipal, city,
provincial or national official or employee, or those
in the civil or military service, including those in
government-owned or-controlled corporations,
shall be considered automatically resigned upon
the filing of certificate of candidacy for a barangay
office.
Since barangay elections are governed by a
separate deemed resignation rule, under the
present state of law, there would be no occasion to
apply the restriction on candidacy found in Section
66 of the Omnibus Election Code, and later
reiterated in the proviso of Section 13 of RA 9369, to
any election other than a partisan one. For this
reason, the overbreadth challenge raised against
Section 66 of the Omnibus Election Code and the
pertinent proviso in Section 13 of RA 9369 must also
fail. 85
In any event, even if we were to assume, for the
sake of argument, that Section 66 of the Omnibus
Election Code and the corresponding provision in
Section 13 of RA 9369 are general rules that apply
also to elections for nonpartisan public offices, the
overbreadth challenge would still be futile. Again,
we explained:
In the first place, the view that Congress is limited to
controlling only partisan behavior has not received
judicial imprimatur, because the general
proposition of the relevant US cases on the matter is
simply that the government has an interest in
regulating the conduct and speech of its
employees that differs significantly from those it
possesses in connection with regulation of the
speech of the citizenry in general. 86
Moreover, in order to have a statute declared as
unconstitutional or void on its face for being overly
broad, particularly where, as in this case, "conduct"
and not "pure speech" is involved, the overbreadth
must not only be real, but substantial as well,
judged in relation to the statute's plainly legitimate
sweep. 87 DaTEIc
In operational terms, measuring the substantiality of
a statute's overbreadth would entail, among other
things, a rough balancing of the number of valid
applications compared to the number of
potentially invalid applications. 88 In this regard,
some sensitivity to reality is needed; an invalid
application that is far-fetched does not deserve as
much weight as one that is probable. 89 The
question is a matter of degree. 90 Thus, assuming for
the sake of argument that the partisan-nonpartisan
distinction is valid and necessary such that a statute
which fails to make this distinction is susceptible to
an overbreadth attack, the overbreadth challenge
presently mounted must demonstrate or provide
this Court with some idea of the number of
potentially invalid elections (i.e., the number of
elections that were insulated from party rivalry but
were nevertheless closed to appointive employees)
that may in all probability result from the
enforcement of the statute. 91
The state of the record, however, does not permit
us to find overbreadth. Borrowing from the words of
Magill v. Lynch, indeed, such a step is not to be
taken lightly, much less to be taken in the dark, 92
especially since an overbreadth finding in this case
would effectively prohibit the State from 'enforcing
an otherwise valid measure against conduct that is
admittedly within its power to proscribe.' 93
This Court would do well to proceed with tiptoe
caution, particularly when it comes to the
application of the overbreadth doctrine in the
analysis of statutes that purportedly attempt to
restrict or burden the exercise of the right to
freedom of speech, for such approach is manifestly
strong medicine that must be used sparingly, and
only as a last resort. 94 EcIaTA
In the United States, claims of facial overbreadth
have been entertained only where, in the judgment
of the court, the possibility that protected speech of
others may be muted and perceived grievances
left to fester (due to the possible inhibitory effects of
overly broad statutes) outweighs the possible harm
to society in allowing some unprotected speech or
conduct to go unpunished. 95 Facial overbreadth
has likewise not been invoked where a limiting
construction could be placed on the challenged
statute, and where there are readily apparent
constructions that would cure, or at least
substantially reduce, the alleged overbreadth of
the statute. 96
In the case at bar, the probable harm to society in
permitting incumbent appointive officials to remain
in office, even as they actively pursue elective
76 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
posts, far outweighs the less likely evil of having
arguably protected candidacies blocked by the
possible inhibitory effect of a potentially overly
broad statute.
In this light, the conceivably impermissible
applications of the challenged statutes which
are, at best, bold predictions cannot justify
invalidating these statutes in toto and prohibiting
the State from enforcing them against conduct that
is, and has for more than 100 years been,
unquestionably within its power and interest to
proscribe. 97 Instead, the more prudent approach
would be to deal with these conceivably
impermissible applications through case-by-case
adjudication rather than through a total
invalidation of the statute itself. 98
Indeed, the anomalies spawned by our assailed
Decision have taken place. In his Motion for
Reconsideration, intervenor Drilon stated that a
number of high-ranking Cabinet members had
already filed their Certificates of Candidacy without
relinquishing their posts. 99 Several COMELEC
election officers had likewise filed their Certificates
of Candidacy in their respective provinces. 100
Even the Secretary of Justice had filed her
certificate of substitution for representative of the
first district of Quezon province last December 14,
2009 101 even as her position as Justice Secretary
includes supervision over the City and Provincial
Prosecutors, 102 who, in turn, act as Vice-Chairmen
of the respective Boards of Canvassers. 103 The
Judiciary has not been spared, for a Regional Trial
Court Judge in the South has thrown his hat into the
political arena. We cannot allow the tilting of our
electoral playing field in their favor.
For the foregoing reasons, we now rule that Section
4 (a) of Resolution 8678 and Section 13 of RA 9369,
which merely reiterate Section 66 of the Omnibus
Election Code, are not unconstitutionally
overbroad.
IN VIEW WHEREOF, the Court RESOLVES to GRANT
the respondent's and the intervenors' Motions for
Reconsideration; REVERSE and SET ASIDE this Court's
December 1, 2009 Decision; DISMISS the Petition;
and ISSUE this Resolution declaring as not
UNCONSTITUTIONAL (1) Section 4 (a) of COMELEC
Resolution No. 8678, (2) the second proviso in the
third paragraph of Section 13 of Republic Act No.
9369, and (3) Section 66 of the Omnibus Election
Code. IDCHTE
SO ORDERED.
Carpio, Corona, Carpio Morales, Velasco, Jr.,
Nachura, Leonardo-de Castro, Brion, Peralta,
Bersamin, Del Castillo, Abad, Villarama, Jr., Perez
and Mendoza, JJ., concur.
(Biraogo v. Philippine Truth Commission of 2010, G.R.
No. 192935, 193036, December 07, 2010)
EN BANC
[G.R. No. 192935. December 7, 2010.]
 LOUIS "BAROK" C. BIRAOGO, petitioner, vs. THE
PHILIPPINE TRUTH COMMISSION OF 2010,
respondent.
[G.R. No. 193036. December 7, 2010.]
REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO,
JR., REP. SIMEON A. DATUMANONG, and REP.
ORLANDO B. FUA, SR., petitioners, vs. EXECUTIVE
SECRETARY PAQUITO N. OCHOA, JR. and
DEPARTMENT OF BUDGET AND MANAGEMENT
SECRETARY FLORENCIO B. ABAD, respondents.
DECISION
MENDOZA, J p:
When the judiciary mediates to allocate
constitutional boundaries, it does not assert any
superiority over the other departments; it does not
in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to
determine conflicting claims of authority under the
Constitution and to establish for the parties in an
actual controversy the rights which that instrument
secures and guarantees to them.
Justice Jose P. Laurel 1
The role of the Constitution cannot be overlooked.
It is through the Constitution that the fundamental
powers of government are established, limited and
defined, and by which these powers are distributed
among the several departments. 2 The Constitution
is the basic and paramount law to which all other
laws must conform and to which all persons,
including the highest officials of the land, must
defer. 3 Constitutional doctrines must remain
steadfast no matter what may be the tides of time.
It cannot be simply made to sway and
accommodate the call of situations and much
more tailor itself to the whims and caprices of
government and the people who run it. 4
For consideration before the Court are two
consolidated cases 5 both of which essentially assail
the validity and constitutionality of EXECUTIVE
ORDER NO. 1, dated July 30, 2010, entitled
"Creating the Philippine Truth Commission of 2010."
The first case is G.R. No. 192935, a special civil
action for prohibition instituted by petitioner Louis
Biraogo (Biraogo) in his capacity as a citizen and
taxpayer. Biraogo assails EXECUTIVE ORDER NO. 1
for being violative of the legislative power of
Congress under Section 1, Article VI of the
Constitution 6 as it usurps the constitutional authority
of the legislature to create a public office and to
appropriate funds therefor. 7
The second case, G.R. No. 193036, is a special civil
action for certiorari and prohibition filed by
petitioners Edcel C. Lagman, Rodolfo B. Albano Jr.,
Simeon A. Datumanong, and Orlando B. Fua, Sr.
(petitioners-legislators) as incumbent members of
the House of Representatives.
The genesis of the foregoing cases can be traced
to the events prior to the historic May 2010
elections, when then Senator Benigno Simeon
77 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
Aquino III declared his staunch condemnation of
graft and corruption with his slogan, "Kung walang
corrupt, walang mahirap." The Filipino people,
convinced of his sincerity and of his ability to carry
out this noble objective, catapulted the good
senator to the presidency. ITESAc
To transform his campaign slogan into reality,
President Aquino found a need for a special body
to investigate reported cases of graft and
corruption allegedly committed during the previous
administration.
Thus, at the dawn of his administration, the
President on July 30, 2010, signed EXECUTIVE ORDER
NO. 1 establishing the Philippine Truth Commission
of 2010 (Truth Commission). Pertinent provisions of
said executive order read:
EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH COMMISSION OF
2010
WHEREAS, Article XI, Section 1 of the 1987
Constitution of the Philippines solemnly enshrines the
principle that a public office is a public trust and
mandates that public officers and employees, who
are servants of the people, must at all times be
accountable to the latter, serve them with utmost
responsibility, integrity, loyalty and efficiency, act
with patriotism and justice, and lead modest lives;
WHEREAS, corruption is among the most despicable
acts of defiance of this principle and notorious
violation of this mandate;
WHEREAS, corruption is an evil and scourge which
seriously affects the political, economic, and social
life of a nation; in a very special way it inflicts untold
misfortune and misery on the poor, the
marginalized and underprivileged sector of society;
WHEREAS, corruption in the Philippines has reached
very alarming levels, and undermined the people's
trust and confidence in the Government and its
institutions;
WHEREAS, there is an urgent call for the
determination of the truth regarding certain reports
of large scale graft and corruption in the
government and to put a closure to them by the
filing of the appropriate cases against those
involved, if warranted, and to deter others from
committing the evil, restore the people's faith and
confidence in the Government and in their public
servants;
WHEREAS, the President's battlecry during his
campaign for the Presidency in the last elections
"kung walang corrupt, walang mahirap" expresses a
solemn pledge that if elected, he would end
corruption and the evil it breeds;
WHEREAS, there is a need for a separate body
dedicated solely to investigating and finding out
the truth concerning the reported cases of graft
and corruption during the previous administration,
and which will recommend the prosecution of the
offenders and secure justice for all;
WHEREAS, Book III, Chapter 10, Section 31 of
Executive Order No. 292, otherwise known as the
Revised Administrative Code of the Philippines,
gives the President the continuing authority to
reorganize the Office of the President. cTIESa
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III,
President of the Republic of the Philippines, by
virtue of the powers vested in me by law, do hereby
order:
SECTION 1. Creation of a Commission. There is
hereby created the PHILIPPINE TRUTH COMMISSION,
hereinafter referred to as the "COMMISSION," which
shall primarily seek and find the truth on, and
toward this end, investigate reports of graft and
corruption of such scale and magnitude that shock
and offend the moral and ethical sensibilities of the
people, committed by public officers and
employees, their co-principals, accomplices and
accessories from the private sector, if any, during
the previous administration; and thereafter
recommend the appropriate action or measure to
be taken thereon to ensure that the full measure of
justice shall be served without fear or favor.
The Commission shall be composed of a Chairman
and four (4) members who will act as an
independent collegial body.
SECTION 2. Powers and Functions. The
Commission, which shall have all the powers of an
investigative body under Section 37, Chapter 9,
Book I of the Administrative Code of 1987, is
primarily tasked to conduct a thorough fact-finding
investigation of reported cases of graft and
corruption referred to in Section 1, involving third
level public officers and higher, their co-principals,
accomplices and accessories from the private
sector, if any, during the previous administration
and thereafter submit its finding and
recommendations to the President, Congress and
the Ombudsman.
In particular, it shall:
a) Identify and determine the reported cases of
such graft and corruption which it will investigate;
b) Collect, receive, review and evaluate evidence
related to or regarding the cases of large scale
corruption which it has chosen to investigate, and
to this end require any agency, official or employee
of the Executive Branch, including government-
owned or controlled corporations, to produce
documents, books, records and other papers;
c) Upon proper request or representation, obtain
information and documents from the Senate and
the House of Representatives records of
investigations conducted by committees thereof
relating to matters or subjects being investigated by
the Commission;
78 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
d) Upon proper request and representation, obtain
information from the courts, including the
Sandiganbayan and the Office of the Court
Administrator, information or documents in respect
to corruption cases filed with the Sandiganbayan or
the regular courts, as the case may be;
e) Invite or subpoena witnesses and take their
testimonies and for that purpose, administer oaths
or affirmations as the case may be;
f) Recommend, in cases where there is a need to
utilize any person as a state witness to ensure that
the ends of justice be fully served, that such person
who qualifies as a state witness under the Revised
Rules of Court of the Philippines be admitted for
that purpose; TacADE
g) Turn over from time to time, for expeditious
prosecution, to the appropriate prosecutorial
authorities, by means of a special or interim report
and recommendation, all evidence on corruption
of public officers and employees and their private
sector co-principals, accomplices or accessories, if
any, when in the course of its investigation the
Commission finds that there is reasonable ground to
believe that they are liable for graft and corruption
under pertinent applicable laws;
h) Call upon any government investigative or
prosecutorial agency such as the Department of
Justice or any of the agencies under it, and the
Presidential Anti-Graft Commission, for such
assistance and cooperation as it may require in the
discharge of its functions and duties;
i) Engage or contract the services of resource
persons, professionals and other personnel
determined by it as necessary to carry out its
mandate;
j) Promulgate its rules and regulations or rules of
procedure it deems necessary to effectively and
efficiently carry out the objectives of this Executive
Order and to ensure the orderly conduct of its
investigations, proceedings and hearings, including
the presentation of evidence;
k) Exercise such other acts incident to or are
appropriate and necessary in connection with the
objectives and purposes of this Order.
SECTION 3. Staffing Requirements. . . . .
SECTION 4. Detail of Employees. . . . .
SECTION 5. Engagement of Experts. . . .
SECTION 6. Conduct of Proceedings. . . . .
SECTION 7. Right to Counsel of Witnesses/Resource
Persons. . . . .
SECTION 8. Protection of Witnesses/Resource
Persons. . . . .
SECTION 9. Refusal to Obey Subpoena, Take Oath
or Give Testimony. Any government official or
personnel who, without lawful excuse, fails to
appear upon subpoena issued by the Commission
or who, appearing before the Commission refuses
to take oath or affirmation, give testimony or
produce documents for inspection, when required,
shall be subject to administrative disciplinary action.
Any private person who does the same may be
dealt with in accordance with law.
SECTION 10. Duty to Extend Assistance to the
Commission. . . . . .
SECTION 11. Budget for the Commission. The
Office of the President shall provide the necessary
funds for the Commission to ensure that it can
exercise its powers, execute its functions, and
perform its duties and responsibilities as effectively,
efficiently, and expeditiously as possible. aDSAEI
SECTION 12. Office. . . . .
SECTION 13. Furniture/Equipment. . . . .
SECTION 14. Term of the Commission. The
Commission shall accomplish its mission on or
before December 31, 2012.
SECTION 15. Publication of Final Report. . . . .
SECTION 16. Transfer of Records and Facilities of the
Commission. . . . .
SECTION 17. Special Provision Concerning
Mandate. If and when in the judgment of the
President there is a need to expand the mandate
of the Commission as defined in Section 1 hereof to
include the investigation of cases and instances of
graft and corruption during the prior
administrations, such mandate may be so
extended accordingly by way of a supplemental
Executive Order.
SECTION 18. Separability Clause. If any provision
of this Order is declared unconstitutional, the same
shall not affect the validity and effectivity of the
other provisions hereof.
SECTION 19. Effectivity. This Executive Order shall
take effect immediately.
DONE in the City of Manila, Philippines, this 30th day
of July 2010.
(SGD.) BENIGNO S. AQUINO III
By the President:
(SGD.) PAQUITO N. OCHOA, JR.
Executive Secretary
Nature of the Truth Commission
As can be gleaned from the above-quoted
provisions, the Philippine Truth Commission (PTC) is a
mere ad hoc body formed under the Office of the
President with the primary task to investigate reports
of graft and corruption committed by third-level
public officers and employees, their co-principals,
79 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
accomplices and accessories during the previous
administration, and thereafter to submit its finding
and recommendations to the President, Congress
and the Ombudsman. Though it has been
described as an "independent collegial body," it is
essentially an entity within the Office of the
President Proper and subject to his control.
Doubtless, it constitutes a public office, as an ad
hoc body is one. 8
To accomplish its task, the PTC shall have all the
powers of an investigative body under Section 37,
Chapter 9, Book I of the Administrative Code of
1987. It is not, however, a quasi-judicial body as it
cannot adjudicate, arbitrate, resolve, settle, or
render awards in disputes between contending
parties. All it can do is gather, collect and assess
evidence of graft and corruption and make
recommendations. It may have subpoena powers
but it has no power to cite people in contempt,
much less order their arrest. Although it is a fact-
finding body, it cannot determine from such facts if
probable cause exists as to warrant the filing of an
information in our courts of law. Needless to state, it
cannot impose criminal, civil or administrative
penalties or sanctions. cADaIH
The PTC is different from the truth commissions in
other countries which have been created as
official, transitory and non-judicial fact-finding
bodies "to establish the facts and context of serious
violations of human rights or of international
humanitarian law in a country's past." 9 They are
usually established by states emerging from periods
of internal unrest, civil strife or authoritarianism to
serve as mechanisms for transitional justice.
Truth commissions have been described as bodies
that share the following characteristics: (1) they
examine only past events; (2) they investigate
patterns of abuse committed over a period of time,
as opposed to a particular event; (3) they are
temporary bodies that finish their work with the
submission of a report containing conclusions and
recommendations; and (4) they are officially
sanctioned, authorized or empowered by the State.
10 "Commission's members are usually empowered
to conduct research, support victims, and propose
policy recommendations to prevent recurrence of
crimes. Through their investigations, the commissions
may aim to discover and learn more about past
abuses, or formally acknowledge them. They may
aim to prepare the way for prosecutions and
recommend institutional reforms." 11
Thus, their main goals range from retribution to
reconciliation. The Nuremburg and Tokyo war crime
tribunals are examples of a retributory or vindicatory
body set up to try and punish those responsible for
crimes against humanity. A form of a reconciliatory
tribunal is the Truth and Reconciliation Commission
of South Africa, the principal function of which was
to heal the wounds of past violence and to prevent
future conflict by providing a cathartic experience
for victims.
The PTC is a far cry from South Africa's model. The
latter placed more emphasis on reconciliation than
on judicial retribution, while the marching order of
the PTC is the identification and punishment of
perpetrators. As one writer 12 puts it:
The order ruled out reconciliation. It translated the
Draconian code spelled out by Aquino in his
inaugural speech: "To those who talk about
reconciliation, if they mean that they would like us
to simply forget about the wrongs that they have
committed in the past, we have this to say: There
can be no reconciliation without justice. When we
allow crimes to go unpunished, we give consent to
their occurring over and over again."
The Thrusts of the Petitions
Barely a month after the issuance of EXECUTIVE
ORDER NO. 1, the petitioners asked the Court to
declare it unconstitutional and to enjoin the PTC
from performing its functions. A perusal of the
arguments of the petitioners in both cases shows
that they are essentially the same. The petitioners-
legislators summarized them in the following
manner:
(a) E.O. No. 1 violates the separation of powers as it
arrogates the power of the Congress to create a
public office and appropriate funds for its
operation. cAaTED
(b) The provision of Book III, Chapter 10, Section 31
of the Administrative Code of 1987 cannot
legitimize E.O. No. 1 because the delegated
authority of the President to structurally reorganize
the Office of the President to achieve economy,
simplicity and efficiency does not include the
power to create an entirely new public office which
was hitherto inexistent like the "Truth Commission."
(c) E.O. No. 1 illegally amended the Constitution
and pertinent statutes when it vested the "Truth
Commission" with quasi-judicial powers duplicating,
if not superseding, those of the Office of the
Ombudsman created under the 1987 Constitution
and the Department of Justice created under the
Administrative Code of 1987.
(d) E.O. No. 1 violates the equal protection clause
as it selectively targets for investigation and
prosecution officials and personnel of the previous
administration as if corruption is their peculiar
species even as it excludes those of the other
administrations, past and present, who may be
indictable.
(e) The creation of the "Philippine Truth Commission
of 2010" violates the consistent and general
international practice of four decades wherein
States constitute truth commissions to exclusively
investigate human rights violations, which
customary practice forms part of the generally
accepted principles of international law which the
Philippines is mandated to adhere to pursuant to
the Declaration of Principles enshrined in the
Constitution.
(f) The creation of the "Truth Commission" is an
exercise in futility, an adventure in partisan hostility,
a launching pad for trial/conviction by publicity
80 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
and a mere populist propaganda to mistakenly
impress the people that widespread poverty will
altogether vanish if corruption is eliminated without
even addressing the other major causes of poverty.
(g) The mere fact that previous commissions were
not constitutionally challenged is of no moment
because neither laches nor estoppel can bar an
eventual question on the constitutionality and
validity of an executive issuance or even a statute."
13
In their Consolidated Comment, 14 the
respondents, through the Office of the Solicitor
General (OSG), essentially questioned the legal
standing of petitioners and defended the assailed
executive order with the following arguments:
1] E.O. No. 1 does not arrogate the powers of
Congress to create a public office because the
President's executive power and power of control
necessarily include the inherent power to conduct
investigations to ensure that laws are faithfully
executed and that, in any event, the Constitution,
Revised Administrative Code of 1987 (E.O. No. 292),
15 Presidential Decree (P.D.) No. 1416 16 (as
amended by P.D. No. 1772), R.A. No. 9970, 17 and
settled jurisprudence that authorize the President to
create or form such bodies. DIAcTE
2] E.O. No. 1 does not usurp the power of Congress
to appropriate funds because there is no
appropriation but a mere allocation of funds
already appropriated by Congress.
3] The Truth Commission does not duplicate or
supersede the functions of the Office of the
Ombudsman (Ombudsman) and the Department
of Justice (DOJ), because it is a fact-finding body
and not a quasi-judicial body and its functions do
not duplicate, supplant or erode the latter's
jurisdiction.
4] The Truth Commission does not violate the equal
protection clause because it was validly created
for laudable purposes.
The OSG then points to the continued existence
and validity of other executive orders and
presidential issuances creating similar bodies to
justify the creation of the PTC such as Presidential
Complaint and Action Commission (PCAC) by
President Ramon B. Magsaysay, Presidential
Committee on Administrative Performance
Efficiency (PCAPE) by President Carlos P. Garcia
and Presidential Agency on Reform and
Government Operations (PARGO) by President
Ferdinand E. Marcos. 18
From the petitions, pleadings, transcripts, and
memoranda, the following are the principal issues
to be resolved:
1. Whether or not the petitioners have the legal
standing to file their respective petitions and
question EXECUTIVE ORDER NO. 1;
2. Whether or not EXECUTIVE ORDER NO. 1 violates
the principle of separation of powers by usurping
the powers of Congress to create and to
appropriate funds for public offices, agencies and
commissions;
3. Whether or not EXECUTIVE ORDER NO. 1 supplants
the powers of the Ombudsman and the DOJ;
4. Whether or not EXECUTIVE ORDER NO. 1 violates
the equal protection clause; and
5. Whether or not petitioners are entitled to
injunctive relief.
Essential requisites for judicial review
Before proceeding to resolve the issue of the
constitutionality of EXECUTIVE ORDER NO. 1, the
Court needs to ascertain whether the requisites for
a valid exercise of its power of judicial review are
present.
Like almost all powers conferred by the
Constitution, the power of judicial review is subject
to limitations, to wit: (1) there must be an actual
case or controversy calling for the exercise of
judicial power; (2) the person challenging the act
must have the standing to question the validity of
the subject act or issuance; otherwise stated, he
must have a personal and substantial interest in the
case such that he has sustained, or will sustain,
direct injury as a result of its enforcement; (3) the
question of constitutionality must be raised at the
earliest opportunity; and (4) the issue of
constitutionality must be the very lis mota of the
case. 19 AIHDcC
Among all these limitations, only the legal standing
of the petitioners has been put at issue.
Legal Standing of the Petitioners
The OSG attacks the legal personality of the
petitioners-legislators to file their petition for failure
to demonstrate their personal stake in the outcome
of the case. It argues that the petitioners have not
shown that they have sustained or are in danger of
sustaining any personal injury attributable to the
creation of the PTC. Not claiming to be the subject
of the commission's investigations, petitioners will
not sustain injury in its creation or as a result of its
proceedings. 20
The Court disagrees with the OSG in questioning the
legal standing of the petitioners-legislators to assail
EXECUTIVE ORDER NO. 1. Evidently, their petition
primarily invokes usurpation of the power of the
Congress as a body to which they belong as
members. This certainly justifies their resolve to take
the cudgels for Congress as an institution and
present the complaints on the usurpation of their
power and rights as members of the legislature
before the Court. As held in Philippine Constitution
Association v. Enriquez, 21
To the extent the powers of Congress are impaired,
so is the power of each member thereof, since his
office confers a right to participate in the exercise
of the powers of that institution.
81 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
An act of the Executive which injures the institution
of Congress causes a derivative but nonetheless
substantial injury, which can be questioned by a
member of Congress. In such a case, any member
of Congress can have a resort to the courts.
Indeed, legislators have a legal standing to see to it
that the prerogative, powers and privileges vested
by the Constitution in their office remain inviolate.
Thus, they are allowed to question the validity of
any official action which, to their mind, infringes on
their prerogatives as legislators. 22
With regard to Biraogo, the OSG argues that, as a
taxpayer, he has no standing to question the
creation of the PTC and the budget for its
operations. 23 It emphasizes that the funds to be
used for the creation and operation of the
commission are to be taken from those funds
already appropriated by Congress. Thus, the
allocation and disbursement of funds for the
commission will not entail congressional action but
will simply be an exercise of the President's power
over contingent funds.
As correctly pointed out by the OSG, Biraogo has
not shown that he sustained, or is in danger of
sustaining, any personal and direct injury
attributable to the implementation of EXECUTIVE
ORDER NO. 1. Nowhere in his petition is an assertion
of a clear right that may justify his clamor for the
Court to exercise judicial power and to wield the
axe over presidential issuances in defense of the
Constitution. The case of David v. Arroyo 24
explained the deep-seated rules on locus standi.
Thus: ACcHIa
Locus standi is defined as "a right of appearance in
a court of justice on a given question." In private
suits, standing is governed by the "real-parties-in
interest" rule as contained in Section 2, Rule 3 of the
1997 Rules of Civil Procedure, as amended. It
provides that "every action must be prosecuted or
defended in the name of the real party in interest."
Accordingly, the "real-party-in interest" is "the party
who stands to be benefited or injured by the
judgment in the suit or the party entitled to the
avails of the suit." Succinctly put, the plaintiff's
standing is based on his own right to the relief
sought.
The difficulty of determining locus standi arises in
public suits. Here, the plaintiff who asserts a "public
right" in assailing an allegedly illegal official action,
does so as a representative of the general public.
He may be a person who is affected no differently
from any other person. He could be suing as a
"stranger," or in the category of a "citizen," or
"taxpayer." In either case, he has to adequately
show that he is entitled to seek judicial protection.
In other words, he has to make out a sufficient
interest in the vindication of the public order and
the securing of relief as a "citizen" or "taxpayer.
Case law in most jurisdictions now allows both
"citizen" and "taxpayer" standing in public actions.
The distinction was first laid down in Beauchamp v.
Silk, where it was held that the plaintiff in a
taxpayer's suit is in a different category from the
plaintiff in a citizen's suit. In the former, the plaintiff is
affected by the expenditure of public funds, while
in the latter, he is but the mere instrument of the
public concern. As held by the New York Supreme
Court in People ex rel Case v. Collins: "In matter of
mere public right, however . . . the people are the
real parties . . . It is at least the right, if not the duty,
of every citizen to interfere and see that a public
offence be properly pursued and punished, and
that a public grievance be remedied." With respect
to taxpayer's suits, Terr v. Jordan held that "the right
of a citizen and a taxpayer to maintain an action in
courts to restrain the unlawful use of public funds to
his injury cannot be denied."
However, to prevent just about any person from
seeking judicial interference in any official policy or
act with which he disagreed with, and thus hinders
the activities of governmental agencies engaged
in public service, the United State Supreme Court
laid down the more stringent "direct injury" test in Ex
Parte Levitt, later reaffirmed in Tileston v. Ullman. The
same Court ruled that for a private individual to
invoke the judicial power to determine the validity
of an executive or legislative action, he must show
that he has sustained a direct injury as a result of
that action, and it is not sufficient that he has a
general interest common to all members of the
public.
This Court adopted the "direct injury" test in our
jurisdiction. In People v. Vera, it held that the person
who impugns the validity of a statute must have "a
personal and substantial interest in the case such
that he has sustained, or will sustain direct injury as a
result." The Vera doctrine was upheld in a litany of
cases, such as, Custodio v. President of the Senate,
Manila Race Horse Trainers' Association v. De la
Fuente, Pascual v. Secretary of Public Works and
Anti-Chinese League of the Philippines v. Felix.
[Emphases included. Citations omitted]
Notwithstanding, the Court leans on the doctrine
that "the rule on standing is a matter of procedure,
hence, can be relaxed for nontraditional plaintiffs
like ordinary citizens, taxpayers, and legislators
when the public interest so requires, such as when
the matter is of transcendental importance, of
overreaching significance to society, or of
paramount public interest." 25 cDAITS
Thus, in Coconut Oil Refiners Association, Inc. v.
Torres, 26 the Court held that in cases of paramount
importance where serious constitutional questions
are involved, the standing requirements may be
relaxed and a suit may be allowed to prosper even
where there is no direct injury to the party claiming
the right of judicial review. In the first Emergency
Powers Cases, 27 ordinary citizens and taxpayers
were allowed to question the constitutionality of
several executive orders although they had only an
indirect and general interest shared in common
with the public.
The OSG claims that the determinants of
transcendental importance 28 laid down in CREBA
82 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
v. ERC and Meralco 29 are non-existent in this case.
The Court, however, finds reason in Biraogo's
assertion that the petition covers matters of
transcendental importance to justify the exercise of
jurisdiction by the Court. There are constitutional
issues in the petition which deserve the attention of
this Court in view of their seriousness, novelty and
weight as precedents. Where the issues are of
transcendental and paramount importance not
only to the public but also to the Bench and the
Bar, they should be resolved for the guidance of all.
30 Undoubtedly, the Filipino people are more than
interested to know the status of the President's first
effort to bring about a promised change to the
country. The Court takes cognizance of the petition
not due to overwhelming political undertones that
clothe the issue in the eyes of the public, but
because the Court stands firm in its oath to perform
its constitutional duty to settle legal controversies
with overreaching significance to society.
Power of the President to Create the Truth
Commission
In his memorandum in G.R. No. 192935, Biraogo
asserts that the Truth Commission is a public office
and not merely an adjunct body of the Office of
the President. 31 Thus, in order that the President
may create a public office he must be empowered
by the Constitution, a statute or an authorization
vested in him by law. According to petitioner, such
power cannot be presumed 32 since there is no
provision in the Constitution or any specific law that
authorizes the President to create a truth
commission. 33 He adds that Section 31 of the
Administrative Code of 1987, granting the President
the continuing authority to reorganize his office,
cannot serve as basis for the creation of a truth
commission considering the aforesaid provision
merely uses verbs such as "reorganize," "transfer,"
"consolidate," "merge," and "abolish." 34 Insofar as it
vests in the President the plenary power to
reorganize the Office of the President to the extent
of creating a public office, Section 31 is inconsistent
with the principle of separation of powers enshrined
in the Constitution and must be deemed repealed
upon the effectivity thereof. 35
Similarly, in G.R. No. 193036, petitioners-legislators
argue that the creation of a public office lies within
the province of Congress and not with the
executive branch of government. They maintain
that the delegated authority of the President to
reorganize under Section 31 of the Revised
Administrative Code: 1) does not permit the
President to create a public office, much less a
truth commission; 2) is limited to the reorganization
of the administrative structure of the Office of the
President; 3) is limited to the restructuring of the
internal organs of the Office of the President Proper,
transfer of functions and transfer of agencies; and
4) only to achieve simplicity, economy and
efficiency. 36 Such continuing authority of the
President to reorganize his office is limited, and by
issuing EXECUTIVE ORDER NO. 1, the President
overstepped the limits of this delegated authority.
HCEaDI
The OSG counters that there is nothing exclusively
legislative about the creation by the President of a
fact-finding body such as a truth commission.
Pointing to numerous offices created by past
presidents, it argues that the authority of the
President to create public offices within the Office
of the President Proper has long been recognized.
37 According to the OSG, the Executive, just like the
other two branches of government, possesses the
inherent authority to create fact-finding
committees to assist it in the performance of its
constitutionally mandated functions and in the
exercise of its administrative functions. 38 This
power, as the OSG explains it, is but an adjunct of
the plenary powers wielded by the President under
Section 1 and his power of control under Section 17,
both of Article VII of the Constitution. 39
It contends that the President is necessarily vested
with the power to conduct fact-finding
investigations, pursuant to his duty to ensure that all
laws are enforced by public officials and
employees of his department and in the exercise of
his authority to assume directly the functions of the
executive department, bureau and office, or
interfere with the discretion of his officials. 40 The
power of the President to investigate is not limited
to the exercise of his power of control over his
subordinates in the executive branch, but extends
further in the exercise of his other powers, such as
his power to discipline subordinates, 41 his power for
rule making, adjudication and licensing purposes 42
and in order to be informed on matters which he is
entitled to know. 43
The OSG also cites the recent case of Banda v.
Ermita, 44 where it was held that the President has
the power to reorganize the offices and agencies in
the executive department in line with his
constitutionally granted power of control and by
virtue of a valid delegation of the legislative power
to reorganize executive offices under existing
statutes.
Thus, the OSG concludes that the power of control
necessarily includes the power to create offices. For
the OSG, the President may create the PTC in order
to, among others, put a closure to the reported
large scale graft and corruption in the government.
45
The question, therefore, before the Court is this:
Does the creation of the PTC fall within the ambit of
the power to reorganize as expressed in Section 31
of the Revised Administrative Code? Section 31
contemplates "reorganization" as limited by the
following functional and structural lines: (1)
restructuring the internal organization of the Office
of the President Proper by abolishing, consolidating
or merging units thereof or transferring functions
from one unit to another; (2) transferring any
function under the Office of the President to any
other Department/Agency or vice versa; or (3)
transferring any agency under the Office of the
President to any other Department/Agency or vice
versa. Clearly, the provision refers to reduction of
personnel, consolidation of offices, or abolition
thereof by reason of economy or redundancy of
83 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
functions. These point to situations where a body or
an office is already existent but a modification or
alteration thereof has to be effected. The creation
of an office is nowhere mentioned, much less
envisioned in said provision. Accordingly, the
answer to the question is in the negative.
To say that the PTC is borne out of a restructuring of
the Office of the President under Section 31 is a
misplaced supposition, even in the plainest
meaning attributable to the term "restructure" an
"alteration of an existing structure." Evidently, the
PTC was not part of the structure of the Office of
the President prior to the enactment of EXECUTIVE
ORDER NO. 1. As held in Buklod ng Kawaning EIIB v.
Hon. Executive Secretary, 46 aSIAHC
But of course, the list of legal basis authorizing the
President to reorganize any department or agency
in the executive branch does not have to end here.
We must not lose sight of the very source of the
power that which constitutes an express grant of
power. Under Section 31, Book III of Executive Order
No. 292 (otherwise known as the Administrative
Code of 1987), "the President, subject to the policy
in the Executive Office and in order to achieve
simplicity, economy and efficiency, shall have the
continuing authority to reorganize the
administrative structure of the Office of the
President." For this purpose, he may transfer the
functions of other Departments or Agencies to the
Office of the President. In Canonizado v. Aguirre
[323 SCRA 312 (2000)], we ruled that reorganization
"involves the reduction of personnel, consolidation
of offices, or abolition thereof by reason of
economy or redundancy of functions." It takes
place when there is an alteration of the existing
structure of government offices or units therein,
including the lines of control, authority and
responsibility between them. The EIIB is a bureau
attached to the Department of Finance. It falls
under the Office of the President. Hence, it is
subject to the President's continuing authority to
reorganize. [Emphasis Supplied]
In the same vein, the creation of the PTC is not
justified by the President's power of control. Control
is essentially the power to alter or modify or nullify or
set aside what a subordinate officer had done in
the performance of his duties and to substitute the
judgment of the former with that of the latter. 47
Clearly, the power of control is entirely different
from the power to create public offices. The former
is inherent in the Executive, while the latter finds
basis from either a valid delegation from Congress,
or his inherent duty to faithfully execute the laws.
The question is this, is there a valid delegation of
power from Congress, empowering the President to
create a public office?
According to the OSG, the power to create a truth
commission pursuant to the above provision finds
statutory basis under P.D. 1416, as amended by P.D.
No. 1772. 48 The said law granted the President the
continuing authority to reorganize the national
government, including the power to group,
consolidate bureaus and agencies, to abolish
offices, to transfer functions, to create and classify
functions, services and activities, transfer
appropriations, and to standardize salaries and
materials. This decree, in relation to Section 20, Title
I, Book III of E.O. 292 has been invoked in several
cases such as Larin v. Executive Secretary. 49
The Court, however, declines to recognize P.D. No.
1416 as a justification for the President to create a
public office. Said decree is already stale,
anachronistic and inoperable. P.D. No. 1416 was a
delegation to then President Marcos of the
authority to reorganize the administrative structure
of the national government including the power to
create offices and transfer appropriations pursuant
to one of the purposes of the decree, embodied in
its last "Whereas" clause:
WHEREAS, the transition towards the parliamentary
form of government will necessitate flexibility in the
organization of the national government.
Clearly, as it was only for the purpose of providing
manageability and resiliency during the interim, P.D.
No. 1416, as amended by P.D. No. 1772, became
functus oficio upon the convening of the First
Congress, as expressly provided in Section 6, Article
XVIII of the 1987 Constitution. In fact, even the
Solicitor General agrees with this view. Thus:
ASSOCIATE JUSTICE CARPIO:
Because P.D. 1416 was enacted was the last
whereas clause of P.D. 1416 says "it was enacted to
prepare the transition from presidential to
parliamentary. Now, in a parliamentary form of
government, the legislative and executive powers
are fused, correct?
SOLICITOR GENERAL CADIZ:
Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO:
That is why, that P.D. 1416 was issued. Now would
you agree with me that P.D. 1416 should not be
considered effective anymore upon the
promulgation, adoption, ratification of the 1987
Constitution.
SOLICITOR GENERAL CADIZ:
Not the whole of P.D. [No.] 1416, Your Honor.
ASSOCIATE JUSTICE CARPIO:
The power of the President to reorganize the entire
National Government is deemed repealed, at least,
upon the adoption of the 1987 Constitution,
correct. cHSIDa
SOLICITOR GENERAL CADIZ:
Yes, Your Honor. 50
While the power to create a truth commission
cannot pass muster on the basis of P.D. No. 1416 as
84 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
amended by P.D. No. 1772, the creation of the PTC
finds justification under Section 17, Article VII of the
Constitution, imposing upon the President the duty
to ensure that the laws are faithfully executed.
Section 17 reads:
Section 17. The President shall have control of all
the executive departments, bureaus, and offices.
He shall ensure that the laws be faithfully executed.
(Emphasis supplied).
As correctly pointed out by the respondents, the
allocation of power in the three principal branches
of government is a grant of all powers inherent in
them. The President's power to conduct
investigations to aid him in ensuring the faithful
execution of laws in this case, fundamental laws
on public accountability and transparency is
inherent in the President's powers as the Chief
Executive. That the authority of the President to
conduct investigations and to create bodies to
execute this power is not explicitly mentioned in the
Constitution or in statutes does not mean that he is
bereft of such authority. 51 As explained in the
landmark case of Marcos v. Manglapus: 52
. . . . The 1987 Constitution, however, brought back
the presidential system of government and restored
the separation of legislative, executive and judicial
powers by their actual distribution among three
distinct branches of government with provision for
checks and balances.
It would not be accurate, however, to state that
"executive power" is the power to enforce the laws,
for the President is head of state as well as head of
government and whatever powers inhere in such
positions pertain to the office unless the Constitution
itself withholds it. Furthermore, the Constitution itself
provides that the execution of the laws is only one
of the powers of the President. It also grants the
President other powers that do not involve the
execution of any provision of law, e.g., his power
over the country's foreign relations.
On these premises, we hold the view that although
the 1987 Constitution imposes limitations on the
exercise of specific powers of the President, it
maintains intact what is traditionally considered as
within the scope of "executive power." Corollarily,
the powers of the President cannot be said to be
limited only to the specific powers enumerated in
the Constitution. In other words, executive power is
more than the sum of specific powers so
enumerated.
It has been advanced that whatever power
inherent in the government that is neither legislative
nor judicial has to be executive. . . . . cSATEH
Indeed, the Executive is given much leeway in
ensuring that our laws are faithfully executed. As
stated above, the powers of the President are not
limited to those specific powers under the
Constitution. 53 One of the recognized powers of
the President granted pursuant to this
constitutionally-mandated duty is the power to
create ad hoc committees. This flows from the
obvious need to ascertain facts and determine if
laws have been faithfully executed. Thus, in
Department of Health v. Camposano, 54 the
authority of the President to issue ADMINISTRATIVE
ORDER NO. 298, creating an investigative
committee to look into the administrative charges
filed against the employees of the Department of
Health for the anomalous purchase of medicines
was upheld. In said case, it was ruled:
The Chief Executive's power to create the Ad hoc
Investigating Committee cannot be doubted.
Having been constitutionally granted full control of
the Executive Department, to which respondents
belong, the President has the obligation to ensure
that all executive officials and employees faithfully
comply with the law. With AO 298 as mandate, the
legality of the investigation is sustained. Such
validity is not affected by the fact that the
investigating team and the PCAGC had the same
composition, or that the former used the offices
and facilities of the latter in conducting the inquiry.
[Emphasis supplied]
It should be stressed that the purpose of allowing
ad hoc investigating bodies to exist is to allow an
inquiry into matters which the President is entitled to
know so that he can be properly advised and
guided in the performance of his duties relative to
the execution and enforcement of the laws of the
land. And if history is to be revisited, this was also
the objective of the investigative bodies created in
the past like the PCAC, PCAPE, PARGO, the
Feliciano Commission, the Melo Commission and
the Zenarosa Commission. There being no changes
in the government structure, the Court is not
inclined to declare such executive power as non-
existent just because the direction of the political
winds have changed.
On the charge that EXECUTIVE ORDER NO. 1
transgresses the power of Congress to appropriate
funds for the operation of a public office, suffice it
to say that there will be no appropriation but only
an allotment or allocations of existing funds already
appropriated. Accordingly, there is no usurpation
on the part of the Executive of the power of
Congress to appropriate funds. Further, there is no
need to specify the amount to be earmarked for
the operation of the commission because, in the
words of the Solicitor General, "whatever funds the
Congress has provided for the Office of the
President will be the very source of the funds for the
commission." 55 Moreover, since the amount that
would be allocated to the PTC shall be subject to
existing auditing rules and regulations, there is no
impropriety in the funding.
Power of the Truth Commission to Investigate
The President's power to conduct investigations to
ensure that laws are faithfully executed is well
recognized. It flows from the faithful-execution
clause of the Constitution under Article VII, Section
17 thereof. 56 As the Chief Executive, the president
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 the authority
85 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
to directly assume the functions of the executive
department. 57
Invoking this authority, the President constituted the
PTC to primarily investigate reports of graft and
corruption and to recommend the appropriate
action. As previously stated, no quasi-judicial
powers have been vested in the said body as it
cannot adjudicate rights of persons who come
before it. It has been said that "Quasi-judicial
powers involve the power to hear and determine
questions of fact to which the legislative policy is to
apply and to decide in accordance with the
standards laid down by law itself in enforcing and
administering the same law." 58 In simpler terms,
judicial discretion is involved in the exercise of these
quasi-judicial power, such that it is exclusively
vested in the judiciary and must be clearly
authorized by the legislature in the case of
administrative agencies. caAICE
The distinction between the power to investigate
and the power to adjudicate was delineated by
the Court in Cario v. Commission on Human Rights.
59 Thus:
"Investigate," commonly understood, means to
examine, explore, inquire or delve or probe into,
research on, study. The dictionary definition of
"investigate" is "to observe or study closely: inquire
into systematically: "to search or inquire into: . . . to
subject to an official probe . . . : to conduct an
official inquiry." The purpose of investigation, of
course, is to discover, to find out, to learn, obtain
information. Nowhere included or intimated is the
notion of settling, deciding or resolving a
controversy involved in the facts inquired into by
application of the law to the facts established by
the inquiry.
The legal meaning of "investigate" is essentially the
same: "(t)o follow up step by step by patient inquiry
or observation. To trace or track; to search into; to
examine and inquire into with care and accuracy;
to find out by careful inquisition; examination; the
taking of evidence; a legal inquiry;" "to inquire; to
make an investigation," "investigation" being in turn
described as "(a)n administrative function, the
exercise of which ordinarily does not require a
hearing. 2 Am J2d Adm L Sec. 257; . . . an inquiry,
judicial or otherwise, for the discovery and
collection of facts concerning a certain matter or
matters."
"Adjudicate," commonly or popularly understood,
means to adjudge, arbitrate, judge, decide,
determine, resolve, rule on, settle. The dictionary
defines the term as "to settle finally (the rights and
duties of the parties to a court case) on the merits
of issues raised: . . . to pass judgment on: settle
judicially: . . . act as judge." And "adjudge" means
"to decide or rule upon as a judge or with judicial or
quasi-judicial powers: . . . to award or grant
judicially in a case of controversy . . . ." HScaCT
In the legal sense, "adjudicate" means: "To settle in
the exercise of judicial authority. To determine
finally. Synonymous with adjudge in its strictest
sense;" and "adjudge" means: "To pass on judicially,
to decide, settle or decree, or to sentence or
condemn. . . . . Implies a judicial determination of a
fact, and the entry of a judgment." [Italics included.
Citations Omitted]
Fact-finding is not adjudication and it cannot be
likened to the judicial function of a court of justice,
or even a quasi-judicial agency or office. The
function of receiving evidence and ascertaining
therefrom the facts of a controversy is not a judicial
function. To be considered as such, the act of
receiving evidence and arriving at factual
conclusions in a controversy must be accompanied
by the authority of applying the law to the factual
conclusions to the end that the controversy may be
decided or resolved authoritatively, finally and
definitively, subject to appeals or modes of review
as may be provided by law. 60 Even respondents
themselves admit that the commission is bereft of
any quasi-judicial power. 61
Contrary to petitioners' apprehension, the PTC will
not supplant the Ombudsman or the DOJ or erode
their respective powers. If at all, the investigative
function of the commission will complement those
of the two offices. As pointed out by the Solicitor
General, the recommendation to prosecute is but a
consequence of the overall task of the commission
to conduct a fact-finding investigation." 62 The
actual prosecution of suspected offenders, much
less adjudication on the merits of the charges
against them, 63 is certainly not a function given to
the commission. The phrase, "when in the course of
its investigation," under Section 2 (g), highlights this
fact and gives credence to a contrary
interpretation from that of the petitioners. The
function of determining probable cause for the
filing of the appropriate complaints before the
courts remains to be with the DOJ and the
Ombudsman. 64
At any rate, the Ombudsman's power to investigate
under R.A. No. 6770 is not exclusive but is shared
with other similarly authorized government
agencies. Thus, in the case of Ombudsman v.
Galicia, 65 it was written:
This power of investigation granted to the
Ombudsman by the 1987 Constitution and The
Ombudsman Act is not exclusive but is shared with
other similarly authorized government agencies
such as the PCGG and judges of municipal trial
courts and municipal circuit trial courts. The power
to conduct preliminary investigation on charges
against public employees and officials is likewise
concurrently shared with the Department of Justice.
Despite the passage of the Local Government
Code in 1991, the Ombudsman retains concurrent
jurisdiction with the Office of the President and the
local Sanggunians to investigate complaints
against local elective officials. [Emphasis supplied].
Also, EXECUTIVE ORDER NO. 1 cannot contravene
the power of the Ombudsman to investigate
criminal cases under Section 15 (1) of R.A. No. 6770,
which states:
86 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
(1) Investigate and prosecute on its own or on
complaint by any person, any act or omission of
any public officer or employee, office or agency,
when such act or omission appears to be illegal,
unjust, improper or inefficient. It has primary
jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of its primary
jurisdiction, it may take over, at any stage, from any
investigatory agency of government, the
investigation of such cases. [Emphases supplied]
AIHDcC
The act of investigation by the Ombudsman as
enunciated above contemplates the conduct of a
preliminary investigation or the determination of the
existence of probable cause. This is categorically
out of the PTC's sphere of functions. Its power to
investigate is limited to obtaining facts so that it can
advise and guide the President in the performance
of his duties relative to the execution and
enforcement of the laws of the land. In this regard,
the PTC commits no act of usurpation of the
Ombudsman's primordial duties.
The same holds true with respect to the DOJ. Its
authority under Section 3 (2), Chapter 1, Title III,
Book IV in the Revised Administrative Code is by no
means exclusive and, thus, can be shared with a
body likewise tasked to investigate the commission
of crimes.
Finally, nowhere in EXECUTIVE ORDER NO. 1 can it
be inferred that the findings of the PTC are to be
accorded conclusiveness. Much like its
predecessors, the Davide Commission, the Feliciano
Commission and the Zenarosa Commission, its
findings would, at best, be recommendatory in
nature. And being so, the Ombudsman and the
DOJ have a wider degree of latitude to decide
whether or not to reject the recommendation.
These offices, therefore, are not deprived of their
mandated duties but will instead be aided by the
reports of the PTC for possible indictments for
violations of graft laws.
Violation of the Equal Protection Clause
Although the purpose of the Truth Commission falls
within the investigative power of the President, the
Court finds difficulty in upholding the
constitutionality of EXECUTIVE ORDER NO. 1 in view
of its apparent transgression of the equal protection
clause enshrined in Section 1, Article III (Bill of Rights)
of the 1987 Constitution. Section 1 reads:
Section 1. No person shall be deprived of life,
liberty, or property without due process of law, nor
shall any person be denied the equal protection of
the laws.
The petitioners assail EXECUTIVE ORDER NO. 1
because it is violative of this constitutional
safeguard. They contend that it does not apply
equally to all members of the same class such that
the intent of singling out the "previous
administration" as its sole object makes the PTC an
"adventure in partisan hostility." 66 Thus, in order to
be accorded with validity, the commission must
also cover reports of graft and corruption in virtually
all administrations previous to that of former
President Arroyo. 67
The petitioners argue that the search for truth
behind the reported cases of graft and corruption
must encompass acts committed not only during
the administration of former President Arroyo but
also during prior administrations where the "same
magnitude of controversies and anomalies" 68 were
reported to have been committed against the
Filipino people. They assail the classification
formulated by the respondents as it does not fall
under the recognized exceptions because first,
"there is no substantial distinction between the
group of officials targeted for investigation by
EXECUTIVE ORDER NO. 1 and other groups or
persons who abused their public office for personal
gain; and second, the selective classification is not
germane to the purpose of EXECUTIVE ORDER NO. 1
to end corruption." 69 In order to attain
constitutional permission, the petitioners advocate
that the commission should deal with "graft and
grafters prior and subsequent to the Arroyo
administration with the strong arm of the law with
equal force." 70 cEaDTA
Position of respondents
According to respondents, while EXECUTIVE ORDER
NO. 1 identifies the "previous administration" as the
initial subject of the investigation, following Section
17 thereof, the PTC will not confine itself to cases of
large scale graft and corruption solely during the
said administration. 71 Assuming arguendo that the
commission would confine its proceedings to
officials of the previous administration, the
petitioners argue that no offense is committed
against the equal protection clause for "the
segregation of the transactions of public officers
during the previous administration as possible
subjects of investigation is a valid classification
based on substantial distinctions and is germane to
the evils which the Executive Order seeks to
correct." 72 To distinguish the Arroyo administration
from past administrations, it recited the following:
First. E.O. No. 1 was issued in view of widespread
reports of large scale graft and corruption in the
previous administration which have eroded public
confidence in public institutions. There is, therefore,
an urgent call for the determination of the truth
regarding certain reports of large scale graft and
corruption in the government and to put a closure
to them by the filing of the appropriate cases
against those involved, if warranted, and to deter
others from committing the evil, restore the people's
faith and confidence in the Government and in
their public servants.
Second. The segregation of the preceding
administration as the object of fact-finding is
warranted by the reality that unlike with
administrations long gone, the current
administration will most likely bear the immediate
consequence of the policies of the previous
administration.
Third. The classification of the previous
administration as a separate class for investigation
87 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
lies in the reality that the evidence of possible
criminal activity, the evidence that could lead to
recovery of public monies illegally dissipated, the
policy lessons to be learned to ensure that anti-
corruption laws are faithfully executed, are more
easily established in the regime that immediately
precede the current administration.
Fourth. Many administrations subject the
transactions of their predecessors to investigations
to provide closure to issues that are pivotal to
national life or even as a routine measure of due
diligence and good housekeeping by a nascent
administration like the Presidential Commission on
Good Government (PCGG), created by the late
President Corazon C. Aquino under EXECUTIVE
ORDER NO. 1 to pursue the recovery of ill-gotten
wealth of her predecessor former President
Ferdinand Marcos and his cronies, and the
Saguisag Commission created by former President
Joseph Estrada under Administrative Order No, 53,
to form an ad-hoc and independent citizens'
committee to investigate all the facts and
circumstances surrounding "Philippine Centennial
projects" of his predecessor, former President Fidel
V. Ramos. 73 [Emphases supplied] TcHEaI
Concept of the Equal Protection Clause
One of the basic principles on which this
government was founded is that of the equality of
right which is embodied in Section 1, Article III of the
1987 Constitution. The equal protection of the laws
is embraced in the concept of due process, as
every unfair discrimination offends the requirements
of justice and fair play. It has been embodied in a
separate clause, however, to provide for a more
specific guaranty against any form of undue
favoritism or hostility from the government.
Arbitrariness in general may be challenged on the
basis of the due process clause. But if the particular
act assailed partakes of an unwarranted partiality
or prejudice, the sharper weapon to cut it down is
the equal protection clause. 74
"According to a long line of decisions, equal
protection simply requires that all persons or things
similarly situated should be treated alike, both as to
rights conferred and responsibilities imposed." 75 It
"requires public bodies and institutions to treat
similarly situated individuals in a similar manner." 76
"The purpose of the equal protection clause is to
secure every person within a state's jurisdiction
against intentional and arbitrary discrimination,
whether occasioned by the express terms of a
statue or by its improper execution through the
state's duly constituted authorities." 77 "In other
words, the concept of equal justice under the law
requires the state to govern impartially, and it may
not draw distinctions between individuals solely on
differences that are irrelevant to a legitimate
governmental objective." 78
The equal protection clause is aimed at all official
state actions, not just those of the legislature. 79 Its
inhibitions cover all the departments of the
government including the political and executive
departments, and extend to all actions of a state
denying equal protection of the laws, through
whatever agency or whatever guise is taken. 80
It, however, does not require the universal
application of the laws to all persons or things
without distinction. What it simply requires is equality
among equals as determined according to a valid
classification. Indeed, the equal protection clause
permits classification. Such classification, however,
to be valid must pass the test of reasonableness.
The test has four requisites: (1) The classification rests
on substantial distinctions; (2) It is germane to the
purpose of the law; (3) It is not limited to existing
conditions only; and (4) It applies equally to all
members of the same class. 81 "Superficial
differences do not make for a valid classification."
82
For a classification to meet the requirements of
constitutionality, it must include or embrace all
persons who naturally belong to the class. 83 "The
classification will be regarded as invalid if all the
members of the class are not similarly treated, both
as to rights conferred and obligations imposed. It is
not necessary that the classification be made with
absolute symmetry, in the sense that the members
of the class should possess the same characteristics
in equal degree. Substantial similarity will suffice;
and as long as this is achieved, all those covered by
the classification are to be treated equally. The
mere fact that an individual belonging to a class
differs from the other members, as long as that class
is substantially distinguishable from all others, does
not justify the non-application of the law to him." 84
cSICHD
The classification must not be based on existing
circumstances only, or so constituted as to
preclude addition to the number included in the
class. It must be of such a nature as to embrace all
those who may thereafter be in similar
circumstances and conditions. It must not leave out
or "underinclude" those that should otherwise fall
into a certain classification. As elucidated in
Victoriano v. Elizalde Rope Workers' Union 85 and
reiterated in a long line of cases, 86
The guaranty of equal protection of the laws is not
a guaranty of equality in the application of the laws
upon all citizens of the state. It is not, therefore, a
requirement, in order to avoid the constitutional
prohibition against inequality, that every man,
woman and child should be affected alike by a
statute. Equality of operation of statutes does not
mean indiscriminate operation on persons merely
as such, but on persons according to the
circumstances surrounding them. It guarantees
equality, not identity of rights. The Constitution does
not require that things which are different in fact be
treated in law as though they were the same. The
equal protection clause does not forbid
discrimination as to things that are different. It does
not prohibit legislation which is limited either in the
object to which it is directed or by the territory
within which it is to operate.
The equal protection of the laws clause of the
Constitution allows classification. Classification in
88 | C O N S T I 2 _ S e c 1 _ E q u a l c l a u s e
law, as in the other departments of knowledge or
practice, is the grouping of things in speculation or
practice because they agree with one another in
certain particulars. A law is not invalid because of
simple inequality. The very idea of classification is
that of inequality, so that it goes without saying that
the mere fact of inequality in no manner
determines the matter of constitutionality. All that is
required of a valid classification is that it be
reasonable, which means that the classification
should be based on substantial distinctions which
make for real differences, that it must be germane
to the purpose of the law; that it must not be limited
to existing conditions only; and that it must apply
equally to each member of the class. This Court has
held that the standard is satisfied if the classification
or distinction is based on a reasonable foundation
or rational basis and is not palpably arbitrary.
[Citations omitted]
Applying these precepts to this case, EXECUTIVE
ORDER NO. 1 should be struck down as violative of
the equal protection clause. The clear mandate of
the envisioned truth commission is to investigate
and find out the truth "concerning the reported
cases of graft and corruption during the previous
administration" 87 only. The intent to single out the
previous administration is plain, patent and
manifest. Mention of it has been made in at least
three portions of the questioned executive order.
Specifically, these are:
WHEREAS, there is a need for a separate body
dedicated solely to investigating and finding out
the truth concerning the reported cases of graft
and corruption during the previous administration,
and which will recommend the prosecution of the
offenders and secure justice for all;
SECTION 1. Creation of a Commission. There is
hereby created the PHILIPPINE TRUTH COMMISSION,
hereinafter referred to as the "COMMISSION," which
shall primarily seek and find the truth on, and
toward this end, investigate reports of graft and
corruption of such scale and magnitude that shock
and offend the moral and ethical sensibilities of the
people, committed by public officers and
employees, their co-principals, accomplices and
accessories from the private sector, if any, during
the previous administration; and thereafter
recommend the appropriate action or measure to
be taken thereon to ensure that the full measure of
justice shall be served without fear or favor.
SECTION 2. Powers and Functions. The
Commission, which shall have all the powers of an
investigative body under Section 37, Chapter 9,
Book I of the Administrative Code of 1987, is
primarily tasked to conduct a thorough fact-finding
investigation of reported cases of graft and
corruption referred to in Section 1, involving third
level public officers and higher, their co-principals,
accomplices and accessories from the private
sector, if any, during the previous administration
and thereafter submit its finding and
recommendations to the President, Congress and
the Ombudsman. [Emphases supplied] HIaSDc
In this regard, it must be borne in mind that the
Arroyo administration is but just a member of a
class, that is, a class of past administrations. It is not
a class of its own. Not to include past
administrations similarly situated constitutes
arbitrariness which the equal protection clause
cannot sanction. Such discriminating differentiation
clearly reverberates to label the commission as a
vehicle for vindictiveness and selective retribution.
Though the OSG enumerates several differences
between the Arroyo administration and other past
administrations, these distinctions are not substantial
enough to merit the restriction of the investigation
to the "previous administration" only. The reports of
widespread corruption in the Arroyo administration
cannot be taken as basis for distinguishing said
administration from earlier administrations which
were also blemished by similar widespread reports
of impropriety. They are not inherent in, and do not
inure solely to, the Arroyo administration. As Justice
Isagani Cruz put it, "Superficial differences do not
make for a valid classification." 88
The public needs to be enlightened why EXECUTIVE
ORDER NO. 1 chooses to limit the scope of the
intended investigation to the previous
administration only. The OSG ventures to opine that
"to include other past administrations, at this point,
may unnecessarily overburden the commission and
lead it to lose its effectiveness." 89 The reason given
is specious. It is without doubt irrelevant to the
legitimate and noble objective of the PTC to stamp
out or "end corruption and the evil it breeds." 90
The probability that there would be difficulty in
unearthing evidence or that the earlier reports
involving the earlier administrations were already
inquired into is beside the point. Obviously,
deceased presidents and cases which have
already prescribed can no longer be the subjects
of inquiry by the PTC. Neither is the PTC expected to
conduct simultaneous investigations of previous
administrations, given the body's limited time and
resources. "The law does not require the impossible"
(Lex non cogit ad impossibilia). 91
Given the foregoing physical and legal impossibility,
the Court logically recognizes the unfeasibility of
investigating almost a century's worth of graft
cases. However, the fact remains that EXECUTIVE
ORDER NO. 1 suffers from arbitrary classification. The
PTC, to be true to its mandate of searching for the
truth, must not exclude the other past
administrations. The PTC must, at least, have the
authority to investigate all past administrations.
While reasonable prioritization is permitted, it should
not be arbitrary lest it be struck down for being
unconstitutional. In the often quoted language of
Yick Wo v. Hopkins, 92
Though the law itself be fair on its face and
impartial in appearance, yet, if applied and
administered by public authority with an evil eye
and an unequal hand, so as practically to make
unjust and illegal discriminations between persons in
similar circumstances, material to their rights, the
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denial of equal justice is still within the prohibition of
the constitution. [Emphasis supplied]
It could be argued that considering that the PTC is
an ad hoc body, its scope is limited. The Court,
however, is of the considered view that although its
focus is restricted, the constitutional guarantee of
equal protection under the laws should not in any
way be circumvented. The Constitution is the
fundamental and paramount law of the nation to
which all other laws must conform and in
accordance with which all private rights
determined and all public authority administered.
93 Laws that do not conform to the Constitution
should be stricken down for being unconstitutional.
94 While the thrust of the PTC is specific, that is, for
investigation of acts of graft and corruption,
EXECUTIVE ORDER NO. 1, to survive, must be read
together with the provisions of the Constitution. To
exclude the earlier administrations in the guise of
"substantial distinctions" would only confirm the
petitioners' lament that the subject executive order
is only an "adventure in partisan hostility." In the
case of US v. Cyprian, 95 it was written: "A rather
limited number of such classifications have routinely
been held or assumed to be arbitrary; those
include: race, national origin, gender, political
activity or membership in a political party, union
activity or membership in a labor union, or more
generally the exercise of first amendment rights."
To reiterate, in order for a classification to meet the
requirements of constitutionality, it must include or
embrace all persons who naturally belong to the
class. 96 "Such a classification must not be based
on existing circumstances only, or so constituted as
to preclude additions to the number included
within a class, but must be of such a nature as to
embrace all those who may thereafter be in similar
circumstances and conditions. Furthermore, all who
are in situations and circumstances which are
relative to the discriminatory legislation and which
are indistinguishable from those of the members of
the class must be brought under the influence of
the law and treated by it in the same way as are
the members of the class." 97 TaDAIS
The Court is not unaware that "mere
underinclusiveness is not fatal to the validity of a
law under the equal protection clause." 98
"Legislation is not unconstitutional merely because it
is not all-embracing and does not include all the
evils within its reach." 99 It has been written that a
regulation challenged under the equal protection
clause is not devoid of a rational predicate simply
because it happens to be incomplete. 100 In
several instances, the underinclusiveness was not
considered a valid reason to strike down a law or
regulation where the purpose can be attained in
future legislations or regulations. These cases refer to
the "step by step" process. 101 "With regard to
equal protection claims, a legislature does not run
the risk of losing the entire remedial scheme simply
because it fails, through inadvertence or otherwise,
to cover every evil that might conceivably have
been attacked." 102
In EXECUTIVE ORDER NO. 1, however, there is no
inadvertence. That the previous administration was
picked out was deliberate and intentional as can
be gleaned from the fact that it was underscored
at least three times in the assailed executive order.
It must be noted that EXECUTIVE ORDER NO. 1 does
not even mention any particular act, event or
report to be focused on unlike the investigative
commissions created in the past. "The equal
protection clause is violated by purposeful and
intentional discrimination." 103
To disprove petitioners' contention that there is
deliberate discrimination, the OSG clarifies that the
commission does not only confine itself to cases of
large scale graft and corruption committed during
the previous administration. 104 The OSG points to
Section 17 of EXECUTIVE ORDER NO. 1, which
provides:
SECTION 17. Special Provision Concerning
Mandate. If and when in the judgment of the
President there is a need to expand the mandate
of the Commission as defined in Section 1 hereof to
include the investigation of cases and instances of
graft and corruption during the prior
administrations, such mandate may be so
extended accordingly by way of a supplemental
Executive Order.
The Court is not convinced. Although Section 17
allows the President the discretion to expand the
scope of investigations of the PTC so as to include
the acts of graft and corruption committed in other
past administrations, it does not guarantee that
they would be covered in the future. Such
expanded mandate of the commission will still
depend on the whim and caprice of the President.
If he would decide not to include them, the section
would then be meaningless. This will only fortify the
fears of the petitioners that the EXECUTIVE ORDER
NO. 1 was "crafted to tailor-fit the prosecution of
officials and personalities of the Arroyo
administration." 105
The Court tried to seek guidance from the
pronouncement in the case of Virata v.
Sandiganbayan, 106 that the "PCGG Charter
(composed of Executive Orders Nos. 1, 2 and 14)
does not violate the equal protection clause." The
decision, however, was devoid of any discussion on
how such conclusory statement was arrived at, the
principal issue in said case being only the
sufficiency of a cause of action.
A final word
The issue that seems to take center stage at present
is whether or not the Supreme Court, in the
exercise of its constitutionally mandated power of
Judicial Review with respect to recent initiatives of
the legislature and the executive department, is
exercising undue interference. Is the Highest
Tribunal, which is expected to be the protector of
the Constitution, itself guilty of violating
fundamental tenets like the doctrine of separation
of powers? Time and again, this issue has been
addressed by the Court, but it seems that the
present political situation calls for it to once again
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explain the legal basis of its action lest it continually
be accused of being a hindrance to the nation's
thrust to progress.
The Philippine Supreme Court, according to Article
VIII, Section 1 of the 1987 Constitution, is vested with
Judicial Power that "includes the duty of the courts
of justice to settle actual controversies involving
rights which are legally demandable and
enforceable, and to determine whether or not
there has been a grave of abuse of discretion
amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the
government." SECHIA
Furthermore, in Section 4 (2) thereof, it is vested with
the power of judicial review which is the power to
declare a treaty, international or executive
agreement, law, presidential decree, proclamation,
order, instruction, ordinance, or regulation
unconstitutional. This power also includes the duty
to rule on the constitutionality of the application, or
operation of presidential decrees, proclamations,
orders, instructions, ordinances, and other
regulations. These provisions, however, have been
fertile grounds of conflict between the Supreme
Court, on one hand, and the two co-equal bodies
of government, on the other. Many times the Court
has been accused of asserting superiority over the
other departments.
To answer this accusation, the words of Justice
Laurel would be a good source of enlightenment,
to wit: "And when the judiciary mediates to allocate
constitutional boundaries, it does not assert any
superiority over the other departments; it does not
in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to
determine conflicting claims of authority under the
Constitution and to establish for the parties in an
actual controversy the rights which that instrument
secures and guarantees to them." 107
Thus, the Court, in exercising its power of judicial
review, is not imposing its own will upon a co-equal
body but rather simply making sure that any act of
government is done in consonance with the
authorities and rights allocated to it by the
Constitution. And, if after said review, the Court
finds no constitutional violations of any sort, then, it
has no more authority of proscribing the actions
under review. Otherwise, the Court will not be
deterred to pronounce said act as void and
unconstitutional.
It cannot be denied that most government actions
are inspired with noble intentions, all geared
towards the betterment of the nation and its
people. But then again, it is important to remember
this ethical principle: "The end does not justify the
means." No matter how noble and worthy of
admiration the purpose of an act, but if the means
to be employed in accomplishing it is simply
irreconcilable with constitutional parameters, then it
cannot still be allowed. 108 The Court cannot just
turn a blind eye and simply let it pass. It will continue
to uphold the Constitution and its enshrined
principles.

"The Constitution must ever remain supreme. All

must bow to the mandate of this law. Expediency
must not be allowed to sap its strength nor greed
for power debase its rectitude." 109

Lest it be misunderstood, this is not the death knell

for a truth commission as nobly envisioned by the
present administration. Perhaps a revision of the
executive issuance so as to include the earlier past
administrations would allow it to pass the test of
reasonableness and not be an affront to the
Constitution. Of all the branches of the
government, it is the judiciary which is the most
interested in knowing the truth and so it will not
allow itself to be a hindrance or obstacle to its
attainment. It must, however, be emphasized that
the search for the truth must be within constitutional
bounds for "ours is still a government of laws and not
of men." 110

WHEREFORE, the petitions are GRANTED. EXECUTIVE

ORDER NO. 1 is hereby declared
UNCONSTITUTIONAL insofar as it is violative of the
equal protection clause of the Constitution.

As also prayed for, the respondents are hereby

ordered to cease and desist from carrying out the
provisions of EXECUTIVE ORDER NO. 1.

SO ORDERED.

Velasco, Jr., Del Castillo, Abad and Villarama, Jr.,

JJ., concur.

Corona, C.J., see separate opinion (concurring).

Carpio, J., see dissenting opinion.

Carpio Morales, J., please see dissenting opinion.

Velasco Jr., J., C.J. Corona certifies that Justice

Velasco left his concurring vote.

Nachura, J., see concurring and dissenting opinion.

Leonardo-De Castro, J., see separate concurring

opinion.

Brion, J., see separate opinion (concurring).

Peralta, J., see separate concurring opinion.

Bersamin, J., see his separate opinion.

Abad, J., see separate dissenting opinion.

Perez, J., see separate opinion (concurring).

Sereno, J., see dissenting opinion.

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