COLLECTOR OF CUSTOMS VS VILLALUZ (71 SCRA 356; MAKASIAR, J.

)
G.R. No. L-34038 On July 1, 1971, petitioner Collector of Customs, Salvador T. Mascardo filed against Cesar
T. Makapugay, a letter complaint with respondent Judge of the Circuit Criminal Court for violation of: (a)
Section 174 of the National Internal Revenue Code, as amended by Republic Act No. 4713, (b) Central Bank
Circular No. 265, in relation to Section 34 of Republic Act No. 265, otherwise known as The Central Bank Act,
and (c) Section 3601 and 3602 of Republic Act No. 1937, in relation to Sections 2505 and 2530 (m) 1 of the
same Act, claiming that Cesar T. Makapugay "with malicious intention to defraud the government criminally,
willfully and feloniously brought into the country FORTY (40) cartons of "untaxed blue seal" Salem cigarettes
and FIVE (5) bottles of Johny Walker Scotch Whiskey, also "untaxed", without the necessary permit from the
proper authorities. The respondent submitted a Baggage Declaration Entry which did not declare the said
articles. The Customs Examiner assigned further asked him if he has something more to declare but the
answer was in the negative. And in utter disregard of existing Central Bank Circulars particularly C.B. Circular
265, as amended, the respondent brought into the country various Philippine Money in the amount of Two
Thousand Two Hundred Eighty (P2,280.00) Pesos cleverly hidden in one of the pieces of baggage examined
by the assigned customs examiner, without any prior permit from the Central Bank authorities. ... " (p. 11,
rec.).
Respondent Judge assumed jurisdiction to conduct and did conduct the preliminary investigation, and on July
6, 1971, issued the challenged order, dismissing "the case with prejudice and ordering the return to private
respondent the amount of P2,280.00, his passport No. Ag-2456 FA - No. B103813, and one (1) box of airconditioning evaporator only, as well as the forfeiture of forty (40) cartons of untaxed blue seal Salem
cigarettes and five (5) bottles of Johnny Walker Scotch Whiskey" (p. 13, rec.). Armed with said order, private
respondent Makapugay demanded that petitioner release the articles so stated. Petitioner Collector of
Customs refused to obey the order due to the "prior institution of seizure proceedings thereon." The refusal
prompted respondent Makapugay to file a complaint for "Open Disobedience" under Article 231 of the
Revised Penal Code, before the City Fiscal of Pasay City.
Hence, this petition for certiorari with preliminary injunction, seeking to annul and set aside the order dated
July 6, 1971 on the ground that respondent Judge has no power to conduct a preliminary investigation of
criminal complaints directly filed with him, cannot legally order the dismissal "with prejudice" of a criminal
case after conducting a preliminary investigation thereon, and is without authority to order the return of
articles subject of seizure proceedings before Customs authorities. In due time, respondents filed their
respective answers to the petition and subsequently both parties submitted their respective memoranda in
lieu of oral argument.
G. R. No. L-34243 On June 22, 1971, respondent Collector of Customs filed a letter- complaint with
respondent Judge against petitioner Nicanor Marcelo for an alleged violation of Section 3602 in relation to
Section 2505 of Republic Act 1937, otherwise known as the Tariff and Customs Code, supposed to have been
committed in the following manner:
... Mr. Marcelo who is an arriving passenger from Hongkong on board a Philippine Air Lines plane, Flight
307, on June 22, 1971, criminally, feloniously, and with intention to defraud the government did not
declare the contents of his pieces of baggage in the Baggage declaration Entry nor with the assigned
Customs Examiner. ... When his pieces of baggage were examined, instead of personal effects as declared
in the Baggage Declaration Entry, what were found were various assorted Watches, Bags, Montagut shirts
and Dress materials which are highly taxable.
The act of passenger Marcelo in intentionally refusing to declare the said articles in the Baggage
Declaration Entry, and before the Customs Examiner despite inquiries made, constitute a criminal offense
within the meaning of Section 3602 of the Tariff and Customs Code of the Philippines. ... (p. 19, rec.).

The criminal complaint having been docketed as Case No. CCC-VII-854-P.C., the respondent Judge assumed
jurisdiction over the objection of petitioners counsel, conducted the preliminary examination and
investigation, simultaneously in the manner provided for by Section 13, Rule 112 of the New Rules of Court,
and thereafter on October 6, 1971 issued the following order:
WHEREFORE, there being a preliminary investigation and examination conducted by the Court and
considering that the respondent was given a chance to defend himself let a Warrant of Arrest be issued for
his apprehension. The respondent is hereby ordered to post a bond in the amount of P5,000.00 for his
provisional release.
Pursuant to Section 6, Rule 135 of the New Rules of Court, in relation to Section 13, Rule 113 thereto, the
City Fiscal of Pasay is hereby ordered to file the corresponding information against the respondent before
this court of competent jurisdiction within FORTY EIGHT (48) HOURS from receipt hereof (p. 23, rec.)
Petitioner Nicanor Marcelo filed this action for certiorari with preliminary injunction, impugning the validity of
the order of respondent Judge dated October 6, 1971, on the same ground as the petition in G.R. No. L34038.
On October 20, 1971, the Supreme Court adopted resolution requiring respondents to rile an answer and
likewise issued a writ of preliminary injunction, "restraining respondent Judge, his representatives, assigns or
persons acting upon his orders, place or stead, from executing, enforcing and implementing his order of
October 6, 1971 ... "(p. 32, rec.) In compliance therewith, respondent Judge filed a petition for admission of
answer on November 29, 1971 (pp. 43-44, rec.), which was granted by this Court in its December 13, 1971
resolution (p. 62, rec.).
On the other hand, respondent Collector of Customs, through the Solicitor General, filed a manifestation on
February 1, 1972, adopting as his answer to the petition, the legal grounds averred in the original petition in
G.R. No. , Collector of Customs, etc. versus Hon. Onofre A. Villaluz, etc., et al (p. 72, rec.). On June 13, 1972,
the Supreme Court by resolution resolved to consider the case submitted for decision after noting the failure
of petitioner to file his memorandum (p. 94, rec.).
G. R. No. L-36376 On February 22, 1973, private respondents Gregorio Conde and Anastacia Torillo, filed a
complaint directly with the Circuit Criminal Court, indicting petitioners with violations of the Anti-Graft Law.
The complaint was ultimately docketed and on the same day (February 22, 1973), respondent Judge
forthwith issued an order of the following tenor:
Considering that the complaint filed ... sufficient in form and substance, the same having been filed in
accordance with Section 13, Rule 112 of the New Rules of Court, and pursuant to the doctrine laid down by
the Supreme Court in the case of "Mateo vs. Villaluz," let the preliminary investigation of this case be set
on February 24, 1973 at 8:00 o'clock in the morning (p. 22, rec.).
On the day set, petitioners appeared at the sala of respondent Judge who proceeded to conduct a preliminary
investigation of the case. The same was reset on February 26, 1973. Immediately before the hearing of
February 26, 1973, petitioners, through counsel, filed an "Urgent Motion to Suspend Preliminary
Investigation" contesting the power of the respondent Judge to conduct the preliminary examination and
investigation (p. 23, rec.), which was denied by respondent Judge in his order dated February 27, 1973 (p. 31,
rec.). Counsel for petitioners then asked for time to raise the issue before this Court, which respondent Judge
granted by giving petitioners a period of just one (1) day to seek relief from this Tribunal. Accordingly, herein
petitioners filed this petition. On March 2, 1973, this Court required respondents to answer the petition and
issued a temporary restraining order "enjoining respondent Judge from ... causing and effecting the arrest of
petitioners herein" (p. 39, rec.). In his answer filed on March 14, 1973, respondent Judge, invoking the same

arguments in G.R. No. L-34243, held on to the view that the Circuit Criminal Courts are vested with the power
and authority to conduct preliminary investigations.
G. R. No. L-38688 On May 23, 1974, private respondent Felix Halimao filed a criminal complaint directly
with the Circuit Criminal Court presided over by respondent Judge charging herein petitioner with alleged
violations of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which
complaint was docketed as Criminal Case No. Prel. Inv. 116-Rizal.
At the hearing of May 27, 1974, petitioner, through counsel, filed an "Urgent Motion to Suspend Preliminary
Investigation" (p. 9, rec.) based on the ground that respondent Judge has no authority to conduct the same.
After arguments by counsels for both parties, the respondent Judge denied petitioner's motion. An oral
motion for reconsideration was likewise denied (pp. 14-15, rec.). Hence, this petition. On May 31, 1974, this
Court by resolution gave due course to the petition and issued a restraining order, "enjoining respondent
Judge, his agents, representatives, and/or any person or persons acting upon his orders or in his place or
stead from proceeding further with the preliminary investigation ... " (p. 24, rec.) On June 17, 1974, it
appearing that the case involved in the petition is criminal in nature, the Court required herein petitioner to
IMPLEAD the People of the Philippines as party-respondent (p. 26, rec.). In conformity thereto, petitioner
through counsel, filed on June 28, 1974 an amended petition impleading The People (pp. 49-50, rec.). Except
for the Solicitor General who appeared for The People of the Philippines, respondents in answer, frontally met
the averments of petitioner.
G. R. No. L-39625 On October 24, 1974, petitioner filed this instant petition seeking to annul "any
preliminary investigation conducted by respondent Judge in Preliminary Inv. No. 72-Rizal, Circuit Criminal
Court, 7th Judicial District, as well as the warrant, if any, that may be issued for the arrest and imprisonment
of petitioner" and to enjoin permanently respondent Judge from conducting preliminary investigations and
from ordering petitioner's arrest.
On October 30, 1974, the Court required the respondents to file their answer within ten (10) days from notice
thereof and issued, effective immediately, a temporary restraining order against respondent Judge (p. 64,
rec.). On November 13, 1974, the Solicitor General filed a manifestation requesting to be excused from filing
an answer considering that in three other cases (The Collector of Customs v. Hon. Onofre A. Villaluz, G.R. No.
L-34038; Nicanor Marcelo v. Hon. Onofre A. Villaluz, G.R. No. L-34243; and Francisco Felix v. Hon. Onofre A.
Villaluz, G.R. No. L-38688) which involve the same legal issue, his office maintains that respondent Judge has
no authority to conduct a preliminary investigation of criminal cases which he may try and decide under
Republic Act No. 5179 (p. 81, rec.). On November 20, 1974, private respondent filed his answer (pp. 87-104,
rec.).
Petitioner, on January 22, 1975, filed a motion praying that the instant case be consolidated and decided
jointly with G.R. Nos. L-34038, L-34243, L-36376 and L-38688 as they involve the same issue; and that the
memoranda filed for petitioners in said four cases be reproduced and adopted as the memorandum for
petitioner in this case, which should be deemed submitted for decision together with the aforementioned
cases (pp. 122-124, rec.). Said motion was granted in the resolution of February 10, 1975 (p. 129, rec.).
In his pleading dated February 5, 1975, private respondent (pp. 130-132, rec.) stated that he joins the
petitioner in his plea for the consolidation of the instant case with cases Nos. L-34038, L-36376 and L-38688
and prayed that the memorandum filed by respondent in L-38688 be considered reproduced and adopted as
the memorandum for private respondent in this case, in addition to the affirmative defenses and arguments
contained in private respondent's answer to the petition, and that this case be submitted for decision
together with the aforementioned cases (p. 137, rec.). The records disclosed the following antecedent facts.

On January 11, 1974, herein private respondent Jose Arellano filed a complaint against Pedro E. Nieva, Jr.,
herein petitioner, together with his wife Pacita and daughter Patricia N. with the Circuit Criminal Court,
Seventh Judicial District, Pasig, Rizal, for violation of the Anti-Graft and Corrupt Practices Act (RA No. 3019) in
connection with the P230,000.00 industrial loan obtained by the Areson Woodtech Manufacturing Company
headed by the complainant, Jose Arellano, from the Development Bank of the Philippines, where herein
petitioner holds the Position of Auditor. The cm was docketed therein as Criminal Case Prel. Inv. CCC-VII-72
Rizal (pp. 1-2, 90-91, pp. 14-16 [Annex "A"] rec.). On the same day the aforesaid complaint was filed in court,
respondent Judge issued an order that reads:
Pursuant to Section 14, Rule 112 of the New Rules of Court in relation to the doctrine laid down by the
Supreme Court in the mu of "Mateo versus Villaluz", Assistant City Fiscal Teodoro B. Santos is hereby
ordered to conduct the preliminary investigation of the above-entitled case within five (5) days from
receipt hereof and to file the necessary information in a court of competent jurisdiction if the evidence so
warrants. ... (pp. 2, 91 [Annex "B"], pp. 21-22, rec.).
On May 22, 1974, investigating Fiscal Teodoro B. Santos endorsed the records of the case back to respondent
Judge, because
... (T)he facts and circumstances which has (sic) been the basis of this instant suit is the same set of first
and circumstances and involving the same parties in a case of ESTAFA THRU FALSIFICATION now pending
preliminary investigation and also before this Honorable Court. Hence, this endorsement in order to avoid
duplication of effort and time in' the resolution and disposition of the same incident.
In an urgent ex-parte motion dated May 24, 1974 filed with the Circuit Criminal Court pursuant to paragraph
1 of the Joint Circular of the Department of Justice and the Department of National Defense dated April 29,
1974, herein private respondent prayed that the endorsement of Fiscal Santos be given due course and that
the preliminary investigation be conducted by the respondent Judge (pp. 3, 92, 104 [Annex "I"], rec.). Herein
petitioner opposed the same in a pleading dated June 1, 1974 (p. 3, pp. 40-49 [Annex "F"], rec.), which was
amplified in another pleading dated September 24, 1974 (pp. 3, 50-59 [Annex "G"], rec.).
Under date of June 18, 1974, private respondent filed a motion to strike out herein petitioner's opposition to
complainant's ex parte urgent motion for preliminary investigation in view of the failure of herein petitioner's
counsel to comply with the order of the Court to furnish a copy of his opposition to complainant Jose Arellano
(pp. 93, 105-106 [Annex "2"], rec.). On September 24, 1974, herein petitioner filed his opposition to the
motion to strike out herein respondent's opposition (pp. 7, 55-59 [Annex "G"], rec.). On the same day, a
hearing was conducted by the respondent Judge on the urgent motion for preliminary investigation and
immediately thereafter, he denied said opposition of herein petitioner (Annex "H", p. 62, pp. 3, 93, rec.).
Hence, this petition.
G. R. No. L-40031 On November 2, 1973, Jose Arellano, private respondent herein, filed with the Circuit
Criminal Court at Pasig, Rizal, a complaint charging herein petitioner with estafa, allegedly committed under
the circumstances provided for in paragraph 4 1(b) Article 315 of the Revised Penal Code (p. 12, rec.). Said
complaint was subsequently docketed as CCC Case No. Prel. Inv. -65-Rizal. Thereupon, respondent Judge
proceeded to conduct the preliminary investigation in question. After the termination of the proceedings,
respondent Judge issued on May 31, 1974 the challenged resolution which reads:
Wherefore, pursuant to Section 13, Rule 113 of the New Rules of Court, Assistant City Fiscal Teodoro B.
Santos is hereby ordered to file the necessary information for the crime of Estafa against respondent
Pacita Nieva, in a court of competent jurisdiction, within forty-eight (48) hours from receipt hereof.

Let a warrant of arrest be issued for the immediate apprehension of respondent Mrs. Pacita Nieva, and for
her provisional liberty, she is hereby ordered to post a bond in the amount of P20,000.00. (p. 24, rec.).
On July 26, 1974, petitioner's counsel filed an urgent motion to declare the preliminary investigation
proceedings null and void ab initio due to lack of jurisdiction on the part of the court. to conduct the same,
re-echoing the arguments invoked by petitioners in G. R. Nos. L-34038, L-34243, L-36376 and L-38688 (p. 14,
rec.). In an order dated August 8, 1974, respondent Judge denied the same (p. 22, rec.).
On January 28, 1975, this Court by resolution required respondents to file an answer to the petition and not
to move for the dismissal of the same. The Court further' resolved to consolidate the case with Cases Nos. L38688, L-34038, L-34243, and L-36376 (p. 26, rec.). In a manifestation filed on February 10, 1975, the
Solicitor General requested that he be excused from filing an answer on the ground that in three cases (G.R.
Nos. L-34038, L-34243 and L-38688), which involve the same legal issue, the counsel for the People has
taken the position that respondent Judge has no authority or jurisdiction to conduct a preliminary
investigation of criminal cases which he may try and decide under Republic Act No. 5179.
Private respondent, on the other hand, through the Citizens Legal Assistance Office of the Department of
Justice, filed his answer on February 20, 1975, maintaining that respondent Judge has jurisdiction to conduct
preliminary investigation invoking particularly Section 13, Rule 112 of the Revised Rules of Court in relation
to Sections 1, 3 and 6 of Republic Act No. 5179. The one common legal issue posed by these six cases is
whether a Circuit Criminal Court possesses the power to conduct preliminary investigations. Neither the
explanatory note to House Bill No. 9801 (now R.A. No. 5179,) nor the available Congressional debates
intimate that Circuit Criminal Courts are clothed with the authority to conduct preliminary examinations and
investigations (Congressional Records of House, March 28, 1967, pp. 41-45; May 15, 1967).
WE therefore examine the law. Petitioners, in maintaining that respondent Judge has no such power, rest
their claim on Section I of Republic Act No. 5179, which provides:
In each of the sixteen judicial districts for the Court of First Instance as presently constituted, there is
hereby created a Circuit Criminal Court with limited jurisdiction, concurrent with the regular Court of First
Instance, to try and decide the following criminal cases falling under the original and exclusive jurisdiction
of the latter:
a. Crimes committed by public officers, crimes against persons and crimes. against property as defined
and penalized under the Revised Penal Code, whether simple or complex with other crimes;
b. Violations of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, ... ;
c. Violations of Sections 3601, 3602 and 3604 of the Tariff and Customs Code and Sections 174, 175 and
345 of the National Internal Revenue Code. (emphasis supplied).
Petitioners argue that said courts, having been conferred limited jurisdiction, cannot exercise such power of
preliminary investigation, the same not being embraced and contemplated within its given function to "try
and decide" specific criminal cases. What is limited by Republic Act No. 5179 is the scope of the cases that
may be tried by Circuit Criminal Courts. Circuit Criminal Courts are of limited jurisdiction, only because they
cannot try and decide all criminal cases falling under the jurisdiction of the Courts of First Instance as courts
of general jurisdiction. They can only take cognizance of cages expressly specified in Section 1 of Republic
Act No. 5179, as amended by Presidential Decree No. 126. Nevertheless, they have the same powers and
functions as those conferred upon regular Courts of First Instance necessary to effectively exercise such
special and limited jurisdiction. This is plain and evident from Sections 3 and 6 of their organic law, Republic
Act No. 5179:

Section 3. The provisions of all laws and the Rules of Court relative to the judges of the Courts of First
Instance and the trial, and disposition and appeal of criminal cases therein shall be applicable to the circuit
judge and the cases cognizable by them insofar as they are not inconsistent with the provisions of this act.
xxx xxx xxx
Section 6. ... Unless inconsistent with the provisions of this Act, the Circuit Criminal Courts shall have the
same powers as those conferred by the Judiciary Act and the Rules of Court upon regular Courts of First
Instance, insofar as may be necessary to carry their jurisdiction into effect.
Judges of the regular Courts of First Instance are expressly conferred the authority to conduct preliminary
examination and investigation by Sections 13 and 14 of Rule 112 of the Revised Rules of Court:
Section 13. Preliminary examination and investigation by the judge of the Court of First Instance. Upon
complaint filed directly with the Court of First Instance, without previous preliminary examination and
investigation conducted by the fiscal, the judge thereof shall either refer the complaint to the justice of the
peace referred to in the second paragraph of Section 2, hereof - for preliminary examination and
investigation, or himself conduct both preliminary examination and investigation simultaneously in the
manner provided in the preceding sections, and should he find reasonable ground to believe that the
defendant has committed the offense charged, he shall issue a warrant for his arrest, and thereafter refer
the case to the fiscal for the filing of the corresponding information. (emphasis supplied).
Section 14. Preliminary examination and investigation by provincial or city fiscal or by state attorney in
cases cognizable by the Court of First Instance. Except where an investigation has been conducted by a
judge of first instance, justice of the peace or other officer in accordance with the provisions of the
preceding sections no information for an offense cognizable by the Court of First Instance shall be filed by
the provincial or city fiscal, or state attorney, without first giving the accused a chance to be heard in a
preliminary investigation conducted by him or by his assistant by issuing a corresponding subpoena. ...
The power of preliminary examination and investigation, which may be exercised by judges of the Circuit
Criminal Courts, is without doubt, "not inconsistent with the provisions of Republic Act No. 5179," and
likewise, "necessary to carry their jurisdiction into effect." Moreover, Congress further confirmed that the
Court of First Instance has the power to conduct preliminary investigation by approving on September 8,
1967 Republic Act No. 5180, prescribing a uniform system of preliminary investigation by all government
prosecutors, which provides:
Sec. 1. Notwithstanding any provision of law to the contrary and except when an investigation has been
conducted by a Judge of First Instance, city or municipal judge or other officer in accordance with law and
the Rules of Court of the Philippines, no information for an offense cognizable by the Court of First Instance
shall be filed by the provincial or city fiscal or any of his assistants, or by a state attorney or his assistants,
without first giving the amused a chance to be heard in a preliminary investigation conducted by him by
issuing a corresponding subpoena. ...
Sec. 2. The provisions of Section fifteen, Rule 112, of the New Rules of Court Of the Philippines, shall be
observed in the investigations of persons in custody.
From the abovequoted Provisions, Republic Act No. 5180 likewise continues the procedure prescribed in the
Revised Rules of court of 1964, Particularly Rule 112 thereof. The aforequoted portion of Section 1 of Republic
Act No. 5180 was not modified by the amendatory Presidential Decrees Nos. 77 and 911 issued respectively
on December 6, 1972 and March 23, 1976. More decisively, the 1935 as well as 1973 Constitution vests this
essential power in all courts to first determine probable cause before ordering the arrest of those charged
with a criminal offense (Section 1[3], Art. III, 1935 Constitution; See. 3, Art. IV, 1973 Constitution). The
determination of "Probable cause" is the sole object of preliminary examinations. Surely, congress could not

have possibly intended to deny the Circuit Criminal Courts such constitutional prerogative, which is part of
the basic constitutional right of an individual whose person cannot be legally seized without prior preliminary
examination by a judge.

Trial of the cases under this section shall be finished by the court not later than ninety (90) days from the
date of the filing of the information. Decision on said cases shall be rendered within a period of fifteen (15)
days from the date of submission of the case.

WE enunciated that the creation of the Circuit Criminal Courts is for the purpose of alleviating the burden of
the regular Courts of first Instance and to accelarate the disposition of criminal cases pending to be filed
therein(People vs. Gutierrez, etc., et al., 36 SCRA 172; Osmea vs. Sec. of Justice, G.R. No. L-32033, Sept 30,
1971, 199) or to contribute to the speedy resolution of criminal cases and help curb the progress of
criminality in the country (Paraguya vs. Tiro, 41 SCRA 13s). As opined by Mr. Justice Barredo in his concurring
opinion in the Gutierrez case, supra, "... Circuit Criminal Courts are nothing but additional branches of the
regular Courts of First Instance in their respective districts ..." , which he reiterated in his concurring opinion
in the Osmea case, thus:

It is patent that the aforequoted provision of Section 39 of Republic Act No. 6425 affirms the power of the
Circuit Criminal Courts to conduct preliminary examination and investigation in all the cases falling under
their jurisdiction and additionally fixes the period for preliminary investigation, the filing of the information
and the rendition of decisions in all offenses penalized by the Dangerous Drugs Act of 1972.

My principal reason for my vote in favor of the judgment in this case is that I cannot find any justification
for allowing the Secretary of Justice to have any part at all in the distribution or assignment of
cases among the different branches of any Court of First Instance, of which the corresponding Circuit
Criminal Court is one. I took this view in my concurring opinion in the case of People v. Gutierrez, cited in
the main opinion of Justice Villamor, and I cannot see why I must opine differently now. ... (41 SCRA 211).
If the main purposes then in creating Circuit Criminal Courts are to alleviate the burden of the regular Courts
of First Instance and to accelerate the disposition of the cases therein as well as stem the tide of criminality,
it is only logical that such authority vested in the judges of the Courts of First Instance is likewise conferred
on Circuit Criminal Courts. Otherwise, the Courts of First Instance would still be carrying the burden of
conducting preliminary. investigations in those cases where Circuit Criminal Courts have jurisdiction and
consequently delaying the trial and disposition of criminal cases pending before such Courts of First Instance.
That Congress, in enacting Republic Act No. 5179 clearly intended, by Sections 3 and 6 thereof, to clothe the
Circuit Criminal Court with all the powers vested in regular Courts of First Instance including the authority to
conduct preliminary examinations and investigations, is confirmed by the Dangerous Drugs Act of 1972,
otherwise known as Republic Act No. 6425, as amended by Presidential Decree No. 44, Section 39 of which
confers on Circuit Criminal Courts, Courts of First Instance and Juvenile and Domestic Relations Courts
concurrent original jurisdiction over all offenses punishable thereunder and expressly directs that the
"preliminary investigation of cases filed under this Act shall be terminated within a period of thirty (30) days
from the date-of their filing." Before the amendment, the law required only seven (7) days from the date of
the commencement of the preliminary investigation. Section 39, as amended, reads:
Sec. 39. Jurisdiction. The Court of First Instance, Circuit Criminal Court and Juvenile and Domestic
Relations Court shall have concurrent original jurisdiction over all cases involving offenses punishable
under this Act: Provided, that in cities or provinces where there are Juvenile and Domestic Relations Courts,
the said courts shall take exclusive cognizance of cases where the offenders are under sixteen years of
age.
The preliminary investigation of cases filed under this Act shall be terminated within a period of thirty (30)
days from the date of their filing.
Where the preliminary investigation is conducted by a prosecuting officer and a prima facie case is
established, the corresponding information shall be filed in court within twenty-four (24) hours from the
termination of the investigation. If the preliminary investigation is conducted by a judge and a prima facie
case is found to exist, the corresponding information shall be filed by the proper prosecuting officer within
forty-eight (48) hours from the date of receipt of the records of the case.

Under the amendment, the Circuit Criminal Court no longer has exclusive, but still retains concurrent,
jurisdiction with the Court of First Instance and Juvenile and Domestic Relations Courts under the Dangerous
Drugs Act. Its authority to conduct preliminary examination and investigation granted under Section 6 of
Republic Act No. 5179, remains intact and undiminished; because the amendatory decree expressly directs
that "If the preliminary investigation is conducted by a judge and a prima facie case is found to exist, the
corresponding information should be filed by the proper prosecuting officer ... " There is nothing in the
amendatory decree from which it can be reasonably inferred that since the jurisdiction of the Circuit Criminal
Court over violations of the Dangerous Drugs Act is no longer exclusive, Circuit Criminal Court Judges no
longer possess the authority to conduct preliminary examination and investigation.
Recognizing the constitutional power of the courts, including the Courts of First Instance, to conduct
preliminary examination, other special laws specifically vest such authority exclusively in the Court of First
Instance in case of violation of the Revised Election Code (Sec. 187, 1947 Revised Election Code, as
amended; Sec. 234, 1971 Rev. Election Code) and of the Anti-subversion Act when the penalty imposable for
the offense is prision mayor to death (Sec. 16, Rep. Act No. 1700).
It is urged that the word "judge" in the above-quoted section of Presidential Decree No. 44 (and also in the.
1935 and 1973 Constitutions) contemplates not the Court of First Instance Judge nor the Circuit Criminal
Court Judge but the municipal judge. As heretofore stated, it is an elementary precept in statutory
construction that where the law does not distinguish, WE should not distinguish (Colgate Palmolive
Philippines, Inc. vs. Gimenez, L-14787, Jan. 28, 1961, 1 SCRA 267). The Statute cannot give a restricted
meaning to the generic term "judge", used in the constitutional guarantee against unreasonable searches
and seizures.
Furthermore, in People versus Manantan (L-14129, July 31, 1962, 5 SCRA 684), a justice of the peace, accuse
of violating Section 54 of the Revised Election Code, moved to dismiss the information on the ground that the
law refers merely to a justice, judge, or fiscal and that being a justice of the peace, he is beyond the
coverage of the said Code. The Supreme Court in denying such contention, held that there was no need of
including justices of the peace in the enumeration in said section because the legislature had availed itself of
the more generic term "judge". The term "judge", not modified by any word or phrase, is intended to
comprehend all kinds of judges, including justices of the peace.
The cases of People versus Paderna (22 SCRA 273) and Paraguya versus Tiro (41 SCRA 137) involved not the
power of the Circuit Criminal Court to conduct preliminary investigation, but its jurisdiction to try and decide
certain They do not at all reveal an iota of any further restriction on the limited jurisdiction of the Circuit
Criminal Court other than those delineated in existing laws. Thus, in the Paderna case, supra, involving a
violation of Section 174 of the Tax Code, Mr. Chief Justice Castro, then Associate Justice, speaking for the
Supreme Court in ruling that the Circuit Criminal Court was without jurisdiction to take cognizance of the
case, stated:
... [T]he charge is for unlawful possession of untaxed "blue seal cigarettes" of an appraised value of less
than P500.00 ... and the penalty provided under Republic Act 4713 is a fine of not less than P50.00 nor

more than P200.00 and imprisonment of not less than 5 nor more than 30 days because the value of the
cigarettes does not exceed P500.00, this case falls within the original and exclusive jurisdiction of the city
court. ...
... Section 1 of Republic Act 5179, which took effect on September 8, 1967, provides in part that circuit
criminal courts shall have limited jurisdiction concurrent with the regular court of first instance, to try and
decide the following criminal cases falling under the original and exclusive jurisdiction of the latter.
xxx xxx xxx
The jurisdiction of the circuit criminal courts is thus dependent not only on the type of cases but also on
the penalties provided for those cases. Inasmuch as the case at bar falls within the exclusive and original
jurisdiction of the City Court, it cannot, even if it involves a violation of section 174 of the Tax Code, be
taken cognizance of by circuit criminal courts, the jurisdiction of which is concurrent with that of courts of
first instance where the latter's jurisdiction is original and exclusive.
The same ruling was substantially reiterated in the more recent Tiro case, supra, involving indirect bribery
committed by a public officer. In passing upon the issue of the Circuit Criminal Court's limited jurisdiction, the
Supreme Court, through Mr. Justice Jose B. L. Reyes, held:
... The law (R.A. 5179) confined the jurisdiction of the circuit criminal courts (which is even made
concurrent with the courts of first instance) to crimes committed by public officers; ... only where they are
falling within the original and exclusive jurisdiction of the court of first instance. In short, circuit criminal
courts' jurisdiction was limited merely to cases involving crimes specifically enumerated in Section 1 of
Republic Act 5179, for which the penalty prescribed by law is imprisonment for more than 3 year (or 6
years in proper cases), or fine of more than 3 years (or 6 years in proper cases), or fine of more than
P3,00.00 (or P6,000.00 as the case may be), or both such fine and imprisonment (sec. 44[f] in relation to
Sec. 87[c], Judiciary Act of 1948, as amended; Esperat vs. Avila, L-25922, June 30, 1967, 20 SCRA 596;
Mangila vs. Lantin, L-24735, October 31, 1969, 30 SCRA 81; People vs. Tapayan , L-36885, November 28,
1969, 30 SCRA 529; Andico vs. Roan, L-26563, April 16, 1968, 23 SCRA 93).
Since indirect bribery is penalized under the Revised Penal Code with imprisonment for a period not
exceeding six months, suspension and public censure (Art. 211, RPC), the case is clearly removed from the
competence of the circuit criminal court to pass upon. It is not denied that the crime of indirect bribery is
essentially one committed by public officers. Jurisdiction of the court, however, is determined not only by
nature of the offense charged in the information, but also by the penalty imposable thereto. ... (emphasis
supplied).
In these two cases, it was made clear that for the Circuit Criminal Court to acquire jurisdiction, the offense
must not only be one of those enumerated under Section 1 of Republic Act No. 5179; it should also be within
the original and exclusive jurisdiction of the regular Courts of First Instance. In the aforesaid cases, the Circuit
Criminal Court was clearly without jurisdiction to hear and decide the offenses involved, by command of the
specific provisions of its charter, the Judiciary Act and the Revised Penal code; and not by a directive of the
Supreme Court, which merely applied in said cited cases the statutory prescriptions. The Supreme Court
cannot legally define additional restrictions, which is the sole prerogative of the law-making authority.
The contrary view appears to entertain the mistaken notion that Section 13, Rule 112 of the Revised Rules of
Court, being a rule of procedure, the same should be rendered inoperative by reason of the fact that the
Supreme Court cannot, by promulgating a rule of procedure, arrogate jurisdiction unto itself or grant any to
the lower courts. It is of course basic that only the Constitution and the law can confer jurisdiction to hear
and decide certain cases. But equally true is the fact that both the 1935 and 1973 Constitutions expressly
delegated to the Supreme Court the rule-making authority the power to promulgate rules of pleading,
practice and procedure and to amend the existing laws thereon. The law or rule of preliminary investigation
is undoubtedly a rule of procedure.

The 1935 Constitution states:

The Supreme court shall have the power to promulgate rules concerning pleading, practice, and procedure
in all courts, and the admission to the practice of law. Said rules shall be inform for all courts of the same
grade and shall not diminish, increase or modify, substantive rights. The existing laws on pleading,
practice, and substantive rights. The existing laws on pleading, practice and procedure are hereby
repealed as statutes, and are declared Rules of Courts, subject to the power of the Supreme court to alter
and modify the same. The Congress shall have the power to repeal, alter or supplement the rules
concerning pleading, practice, and procedure, and the admission to the practice of law in the Philippines
(Sec. 13, Art. VIII, 1935 Constitution).
The 1973 Constitution similarly authorizes the Supreme Court to
Promulgate rules concerning pleading, practice, and procedure in all courts, the admission to the practice
of law, and the integration of the Bar, which, however, may be repeated, altered, or supplemented by the
National Assembly. Such rules shall provide a simplified and inexpensive procedure for the speedy
disposition of cases, shall be uniform for all courts of the same grade. and shall not diminish, increase or
modify substantive rights (Sec. 5[5], Art, X, 1973 Constitution).
Sections 13 and 14 of Rule 112 of the Revised Rules of Court merely implement Section 3 of Article Ill of the
1935 Constitution (now Section 3 of Article IV of the 1973 Constitution). Section 13 of Rule 112 of the Revised
Rules of Court was not an innovation as it merely restated Section 13 of General Order No. 58, Section 37 of
Act No. 1627, and Sections 2 and 4 of Rule 108 of the 1940 Rules of Court, in obedience to its rule-making
authority under Section 13, Article VIII of the 1935 Constitution. Rule 112 does not modify substantive rights
but continues the procedure already operative prior to the 1935 Constitution.
WE have ruled that Rule 108 of the 1940 Rules of Court, which is the predecessor of Rule 112 of the 1964
Revised Rules of Court, is an adjective or procedural rule (Bustos vs. Lucero, 81 Phil. 640). While admitting
that Court of First Instance were previously clothed with the power of preliminary investigation by virtue of
Section 37 of Act 1627, nevertheless, it is argued that this same section was amended when the Judiciary Act
of 1948 was enacted since under Section 99 of said Judiciary Act, "All laws and rules inconsistent with the
provisions of this Act' were repealed. the inconsistency, it is claimed, lies in the fact that while the authority
of municipal courts and city courts to conduct preliminary investigation was reiterated in said Judiciary Act,
there was no mention therein whether Courts of First Instance Judges are still possessed of such authority.
If such repeal was intended, it is unconstitutional; because the Constitutions of 1935 and 1973 vest in the
Judge the power to issue a warrant of arrest or search warrant after conducting a preliminary investigation or
examination. Congress could not divest the court of such authority as the Constitution does not permit it, for
the constitutional guarantee on arrest or search warrant is not qualified by some such phrase as "unless
otherwise provided by law." For a clearer appreciation, the Constitutional guarantee on arrest and search
warrant reads:
(3) The rights of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable
cause, to be determined by the judge after examination under oath or affirmation of the complainant and
the witnesses he may produce, and particularly describing the place to be searched, and the persons or
things to be seized (Art. III, 1935 Constitution, emphasis supplied).
Sec. 3. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and

no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the
judge, or such other responsible officer as may be authorized by law, after examination under oath or
affirmation of the complaint and the witness he may produce, and particularly describing the place to be
searched, and the persons or things to be seized (Art. IV, 1973 Constitution, emphasis supplied).

Following the same trend of thought, this Court, in Morano vs. Vivo (L-22196, 30 June 1967, 20 SCRA, 562;
Phil. 1967-B, page 741), distinguished between administrative arrest in the execution of a final deportation
order and arrest as preliminary to further administrative proceedings. The Court remarked in said case:

It is clear from the aforequoted provisions of the 1973 Constitution that until now only the judge can
determine the existence of probable cause and can issue the warrant of arrest. No law or presidential decree
has been enacted or promulgated vesting the same authority in a particular "responsible officer." Hence, the
1973 Constitution, which was ratified and took effect on January 17, 1973, should govern the last four cases,
namely, Nos. L-36376, L-38688, L-39525 and L-40031, which arose after January 17, 1973.

Section 1 (3), Article Ill of the Constitution, we perceive, does not require judicial intervention in the
execution of a final order of deportation issued in accordance with law. The constitutional limitation
contemplates an order of arrest in the exercise of judicial power as a step preliminary or incidental to
prosecution or proceedings for a given offense or administrative action, not as a measure indispensable
to carry out a valid decision by a competent official, such as a legal order of deportation issued
Commissioner of Immigration, in circumstance of legislation (L-24576, pp. 161-1621).

But even under the 1935 Constitution, the term seizures or seized comprehends arrest. Thus, in Vivo versus
Montesa (July 29, 1968, 24 SCRA 155), reiterating the doctrines in the cases of Qua Chee Gan, et al. vs.
Deportation Board (L-20280, Sept. 30, 1963) and Morano vs. Vivo (L-22196, June 30, 1967, 20 SCRA 162), WE
ruled unanimously through Mr. Justice J.B.L. Reyes:

The foregoing doctrine was last reiterate in Ang, et al. versus Galang, etc. (L-21426, Oct. 22, 1975). Under
the American Constitution, the aforesaid terms include not only arrest but also invitations for police interview
or interrogation as well as stop-and-frisk measures. In the 1968 case of Terry versus Ohio, the United States
Supreme Court enunciated:

Nevertheless, we are of the opinion that the issuance of warrants of arrest by the Commissioners of
Immigration, solely for purposes of investigation and before a final order of deportation is issued, conflicts
with paragraph 3, Section 1, of Article III (Bill of Rights) of our Constitution, providing:
3. The right of the people to be secure in their persons, houses, papers and effects against unreasonable
searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be
determined by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched, and the persons or
things to be seized. (Art. III, 1773 Constitution, emphasis supplied).
It will be noted that the power to determine probable cause for warrants of arrest is limited by the
Philippine Constitution to judges exclusively, unlike in previous organic laws and the Federal Constitution of
the United States that left undetermined which public officials could determine the existence of probable
cause. And in Qua Chee Gan, et al. vs. Deportation Board, L-20280, promulgated on September 30, 1963,
this Court pointed out that Executive Order No. 69, of July 29, 1947, issued by President Roxas, in
prescribing the procedure for deportation of aliens, only required the filing of a bond by an alien under
investigation, but did not authorize his arrest.
Discussing the implications of the provision of our Bill of Rights on the issuance of administrative warrants
of arrest, this Court said in the same case:
xxx xxx xxx
Under the express terms of our Constitution it is, therefore, even doubtful whether the arrest of an
individual may be ordered by any authority other than the judge if the purpose is merely to determine
the existence of probable cause, leading to an administrative investigation. The Constitution does not
distinguish between warrants in a criminal case and administrative warrants in administrative
proceedings. And if one suspected of having committed a crime is entitled to a determination of the
probable cause against him, by a judge, why should one suspected of a violation of an administrative
nature deserve less guarantee? Of course it is different if the order of arrest is issued to carry out a final
finding of a violation, either by an executive or legislative officer or agency duly authorized for the
purpose, as then the warrant is not that mentioned in the Constitution which is issuable only on probable
cause. Such, for example, would be a warrant of arrest to carry out a final order of deportation, or to
effect compliance of an order of contempt.
The(n) contention of the Solicitor General that the arrest of a foreigner is necessary to carry into effect
the power of deportation is valid only when, as already stated, there is already an order of deportation.
To carry out the order of deportation, the president obviously has the power to order the arrest of the
deportee. But, certainly, during the investigation, it is not indispensable that the alien be arrested. It is
enough, as was true before the executive order of President Quirino, that a bond be required to insure
the appearance of the alien during the investigation, as was authorized in the executive order of
President Roxas.

... It is quite plain that the Fourth Amendment governs "seizures" of the person which do not eventuate in a
trip to the station house and prosecution for crime "arrests" in traditional terminology. It must be
recognized that whenever a police officer accounts an individual and restrain his freedom to walk away, he
has "seized" that person (392 U.S. 1, 16 88 S.C.T. 1868, 20 L.E.D. 2d 889; 903 [1968].)
That the aforesaid terms seizures and seized signify arrest was deliberately intended by the founding fathers
of the 1935 Constitution, which words are likewise employed in the 1973 Constitution, Delegate Miguel
Cuaderno categorically recounted:
An amendment affecting the issuance of an order of arrest and search warrant, to the effect that in each
case the order must be supported by the testimony of the complainant and the witnesses he may produce,
made before the judge, and also an amendment providing that prisoners charged with capital offenses
shall be bailable before conviction unless the evidence of guilt is strong, were approved upon the initiative
of Delegates Francisco. It was the prevailing opinion among many delegate that one courts had been
rather easy in the issuance of order of arrest or search warrants, and charged with capital offenses
(Cuaderno, the Framing of the Philippine Constitution, p. 65, Emphasis supplied).
Delegate Jose Aruego added:
During the debates on the draft, Delegate Francisco proposed an amendment being the insertion of the
words, to be determined by the judge after examination under oath or affirmation of the complainant and
the witnesses he may produce. The Idea in the Francisco amendment was not new in the Philippines; for it
was provided for in the Code of Criminal Procedure of the Philippines. The signification of the Idea into a
constitutional provision was zealously insisted upon, in order to make the principle more sacred to the
judges and to prosecuting pointed out in the debates, causes by the issuance of search warrants, which
were generally found afterwards to be false (Aruego, Framing of the Philippine Constitution, Vol. I, p.160).
The term "judge" employed in both Constitutions cannot be so limited to "municipal judge" as to exclude the
judge of the Court of First Instance and Circuit Criminal Court (People vs. Manantan, 5 SCRA 684, 690-695).
WE are not justified to create a distinction where the Constitution does not make any. In general, "judge" is a
term employed to designate a public officer selected to preside and to administer the law in a court of justice
(Ark. School Dist. No. 18 vs. Grubbs Special School Dist., 43 S.W. 2d 765, 766, 184 Ark. 863, 48 CJS 946).

According to intent or context, the term "judge" may include an assistant judge (N.H. City Bank v. Young,
43 N.H. 457); a country or court justice (Mo. State v. O'Gorman, 75 Mo. 370); a justice of the peace (N.Y.
People v. Mann 97 N.Y. 530, 49 Am. R.556). The term "a judge", in Gen. St. C. 47, Art. 1 & 22, providing that
"a judge" may cause any house or building to be searched for the protection of gambling tables, etc., is
equivalent to "any judge" and comprehends an entire class, and cannot, without disturbing its meaning, be
restricted in its applications to judges of county, city and police courts and therefore the judge of the
Louisville Law and equity court has authority to issue a warrant for such a research (Com. v. Watzel, 2 S.W.
123, 125, 84 KY 537).
Admittedly, Section 99 of the Judiciary Act contains a repealing clause which provides: "All laws and
rules inconsistent with the provisions of this Act are hereby repealed." The question may now be asked: What
is the nature of this repealing clause? It is certainly not an express repealing clause because it fails to Identify
or designate the Act or Acts that are intended to be repealed (Sutherland, Statutory Construction, [1934], Vol.
1, p. 467). Rather, it is a clause which predicates the intended repeal upon the condition that a substantial
and an irreconcilable conflict must be found in existing and prior Acts. Such being the case, the presumption
against implied repeals and the rule against strict construction regarding implied repeals apply ex propio
vigore, for repeals and amendments by implication are not favored (Jalandoni vs. Andaya, L-23894, Jan. 24,
1974, 55 SCRA 261, 265-6; Villegas vs. Subido, L-31711, Sept. 30, 1971, 41 SCRA 190; Quimseng vs. Lachica,
2 SCRA 182). Indeed, the legislature is presumed to know the existing laws; so that, if a repeal is intended,
the proper step is to so express it with specificity (Continental Insurance Co. vs. Simpson, 8 F[2d] 439; Webb
vs. Bailey, 151 Ore. 2188, 51 P[2d] 832; State vs. Jackson, 120 W. Va. 521, 199 S.E. 876). The failure to add a
specific repealing clause indicates that the intent was not to repeal any existing law (Crawford, Construction
of Statute, 1940 ed., p. 631), unless an irreconcilable inconsistency and repugnancy exist between the terms
of the new and of the old statutes (Iloilo Palay and Corn Planters Association, Inc. vs. Feliciano, 13 SCRA 377).
Here, there is no such inconsistency.
To begin with, the two laws, although with a common objective, refer to different persons and different
methods applicable under different circumstances. Thus, while Section 87 of the Judiciary Act provides that
municipal judges and judges of city courts may also conduct preliminary investigation for arty offense alleged
to have been committed within their respective municipalities and cities ... ; Section 37 of Act 1627 reads in
part that such power of "every justice of the peace including the justice of Manila, ... shall not exclude the
proper judge of the Court of First Instance ... from exercising such jurisdiction."
WE should not, and cannot, adopt the theory of implied repeal except upon a clear and unequivocal
expression of the will of Congress, which is not manifest from the language of Section 99 of the Judiciary Act,
apart from the fact that Congress by itself alone had no power to amend the Constitution. The opposite view
likewise denies that the jurisdiction of our courts to conduct preliminary investigation could be traced to the
Constitution, adding that the Charter of Manila and other cities confer upon the respective fiscals of said
cities the power to conduct preliminary investigations.
The organic acts prior to the 1935 Constitution did not prohibit the conferment of such a power to conduct
preliminary examination or investigation on quasi-judicial officers like the city fiscals of chartered cities (see
the instructions of President McKinley to First Philippine Commission, the Philippine Bill of 1902, Jones Law of
1916, and the Revised Administrative Code of 1917). But the power thus granted to the Manila City Fiscals
(and later to City Fiscals and City Attorneys of other chartered cities) to conduct preliminary investigations
did not and does not include the authority to issue warrants of arrest and search warrants, which warrants
the courts alone can issue then as now. The constitutional guarantee against unreasonable searches and
seizures under the 1935 Constitution provides that only a judge can issue a search warrant or warrant of
arrest after he has by himself personally determined the existence of probable cause upon his examination
under oath of the complainant and his witnesses; although as ruled in one case, he may rely on the
investigation conducted by the fiscal or prosecutor (Amarga vs. Abbas, 98 Phil. 739, 741-42).

It is patent that under the 1935 Constitution, only the "judge" is directed to conduct a preliminary
examination for the issuance of the warrant of arrest by express constitutional conferment. But the 1973
Constitution empowers the National Assembly to grant the power to issue search warrants or warrants of
arrest after conducting the necessary preliminary examination to "other responsible officer." Until such a law
is enacted by the National Assembly, only the judge can validly conduct a preliminary examination for the
issuance of a warrant of arrest or search warrant.
Even when the fiscal or prosecutor conducts the preliminary investigation, only the judge can validly issue
the warrant of arrest. This is confirmed by Section 6 of Rule 112 of the 1964 Revised Rules of Court, which
directs the judge to issue the warrant of arrest when he is "satisfied from the preliminary. examination
conducted by him or by the investigating officer (referring to the fiscal or the municipal mayor under Sec. 5)
that the offense complained of has been committed and that there is reasonable ground to believe that the
accused has committed it, ... ."
Thus, the power of the city prosecutors to conduct preliminary examination and investigation (minus the
authority to issue warrants of arrest or search warrant) is purely statutory. On the other hand, the judge
derives his authority not only from the Rules of Court, but also and originally from the fundamental law
to which all other laws are subordinate. If an objection must be raised, it should be against the authority of
the fiscal to exercise such power of preliminary investigation, which, as has been stated, is merely statutory.
No less than the Constitution confers upon the judge the power to conduct such examination and
investigation.
The case of Albano versus Alvarez (December 22, 1965, 15 SCRA 518) is authority for the proposition that
Sec. 13 of Rule 112 of the 1964 Revised Rules of Court contains an innovation, which requires that, when the
Court of First Instance itself conducts the preliminary investigation, it must not only conduct the preliminary
examination proper but the preliminary investigation as well since Section 13 commands the Court of First
Instance to conduct both the preliminary examination and investigation simultaneously (523-524). Said
Albano case does not negate but recognizes the authority of the judge of the Court of First Instance to
conduct such preliminary investigation.
It is true that this COURT held expressly and impliedly that under the charters of the cities of Manila, Bacolod
and Cebu, the power to conduct preliminary investigation is exclusively lodged in the city prosecutor (Sayo
vs. Chief of Police, 80 Phil. 859, 868-869, May 12, 1948; Espiritu vs. De la Rosa, 45 OG 196; Montelibano vs.
Ferrer, 97 Phil. 228, June 23, 1955; and Balite vs. People, 18 SCRA 280, 285-286, Sept. 30, 1966). But the
charters of the cities of Manila, Bacolod and Cebu do not contain any provision making such grant of power
to city prosecutors exclusive of the courts (Kapunan, Criminal Procedure, 3rd Edition, 1960), which cannot be
deprived of such authority to conduct preliminary examination because said prerogative of the courts
emanates from the Constitution itself. Unless the Constitution is amended, the judge cannot be divested of
such a power, which is an essential element of the cardinal right of an individual against unreasonable
searches and seizures. If the present city charters conferred on city fiscals or city prosecutors the power to
issue warrants of arrest it would be an unconstitutional grant of power under the 1935 Constitution. As
heretofore intimated, the present practice or rule of court authorizing the judge to issue warrants of arrest
based on the preliminary investigation conducted by the city fiscal, seems to violate the 1935 Constitution,
which requires the judge himself to conduct the preliminary examination. Neither the judge nor the law can
delegate such an authority to another public officer without trenching upon this constitutional guarantee
against unreasonable searches and seizures.
The theory that Courts of First Instance and Circuit Criminal Courts Judges cannot exercise the power of
preliminary examination and investigation, and that as a necessary consequence, they cannot also issue
warrants of arrest, obviously collides with the 1935 and 1973 Constitutions. Moreover, the theory tolerates an
unthinkable because anomalous situation wherein the Court of First Instance and the Circuit Criminal

Court must wait for prosecutors and courts inferior to them to conduct the preliminary examination and/or to
issue the needed warrants of arrest before they could effectively exercise their power to try and decide the
cases falling under their respective jurisdiction. This situation would make the Courts of First Instance and
Circuit Criminal Courts totally dependent upon state prosecutors and municipal courts, which are inferior to
them, for their proper functioning. The possibility that the administration of criminal justice might stand still
will not be very remote.
The two-fold purpose for which the Circuit Criminal Courts were created was to alleviate the burden of the
regular Courts of First Instance and accelerate the disposition of criminal cases filed therein (Osmea vs.
Secretary of Justice, supra; People vs. Gutierrez, supra). Such being the admitted purpose, the power to
conduct preliminary examination must necessarily attach to the duties of a Circuit Criminal Court Judge; for
aside from being one of the instruments by which a case may be accelerated and disposed of, it is a duty
which trully lies within the scope of the office, essential to the accomplishment of the main purpose for which
the office was created (Sec. 3, Art III, 1935 Constitution; Sec 3, Art. IV, 1973 Constitution), even if regarded
as incidental and collateral, is germane to and serves to promote the accomplishment of the principal
purpose (Lo Cham vs. Ocampo, 77 Phil. 635).
WE RULE that both Section 1(3), Article III of the 1935 Constitution provide the source of the power of all
Judges, including Judges of the Court of First Instance, the Circuit Criminal Courts, and other courts of
equivalent rank, to conduct the examination to determine probable cause before the issuance of the warrant
of arrest and therefore sustain the proceedings conducted by respondent Judge leading to the issuance of the
warrants of arrest and his referral of the cases to the fiscal or other government prosecutor for the filing of
the corresponding information.
II. It may be well to trace briefly the historical background of our law on criminal procedure. During the
Spanish regime, the rules of criminal procedure were found in the Provisional Law on Criminal Procedure
which accompanied the Spanish Penal Code. The two laws were published in the Official Gazette in Manila on
March 13 and 14, 1887 and became effective four (4) months thereafter(U.S. vs. Tamparong, 31 Phil. 32-33;
Francisco, Criminal Procedure, 1969, ed., p. 8). While the Provisional Law on Criminal Procedure provided
or governadorcillo, it did not require any preliminary examination or investigation before trial. The sumario
was abolished by General Order No. 58 (U.S. vs. Tamparong, supra; Navarro, Criminal Procedure, 1960 ed.,
pp. 171, 174; Revilla, Vol. 2. Philippine Penal Code and Procedure, 1930 ed., pp. 1134-35).
When the Philippine came under American sovereignty General Order No. 58 was promulgated by the U.S.
Military Governor in the exercise of his legislative powers as commander-in-chief of the occupation army and
took effect on April 13, 1900. General Order No. 58 was amended by Act No. 194 of August 10, 1901, the
Philippine Bill of 1902, Act No. 590 of January 9, 1903, Act No. 1627 of July 1, 1907, the Jones Law of 1916,
Section 2474 of the Revised Administrative Code of 1917, Act No. 3042 of March 10, 1922, and Act No. 4178
of December 5, 1934.
General Order No. 58 amended (Sec.1) the Criminal Code of Procedure enforced during the Spanish regime
and vested in the magistrate "the authority to conduct preliminary investigation (Sec. 13) for the issuance of
the warrant of arrest" and authorized "a judge or a justice of the peace" to issue a search warrant upon his
determination of the existence of probable cause therefor "particularly describing the place to be searched
and the person or thing to be seized" (Secs. 95 and 97). The term "magistrate" comprehended the court of
First Instance (Temporosa vs. Yatco, 79 Phil. 225, 226 [1947]; Marcos vs. Cruz, 68 Phil. 96, 104-107 [1939];
People vs. Red, 55 Phil. 706, 710 [1931]; People vs. Solon, 47 Phil. 443 441 [1925]; Navarro Criminal
Procedure, 960 ed., 1973; Padilla, Criminal Procedure, 1965 ed., p. 270).
A "magistrate" is an officer having power to issue a warrant for the arrest of a person charged with a public
offense. People vs. Swain, 90 P. 720, 722 5 Cal. App. 421 citing Pen. Code, S807.

A "magistrate" is an officer having power to issue a warrant for the arrest of a person charged with the
commission of a crime. The arrest of a person charge with the commission of a crime. The following
persons are magistrates:
(1) the justices of the Supreme Court;
(2) the judges of the Circuit Court;
(3) the county judges and justices of the peace;
(4) all municipal officers authorized to exercise the power and perform the duties of a justice of the
peace. Wallowa County v. Oakes, 78 P. 892, 46 Or. 33 (26 Words and Phrases, pp. 44, 45).
Act No. 194 of August 10, 1901 amended General Order No. 58 by empowering "every justice of the peace ...
to make preliminary investigation of any crime allege to have been committed within his
municipality, jurisdiction to hear and determine which is by law now vested in the judges of the Courts of
First Instance" (emphasis supplied).
The obvious inference from the aforequoted provision of Act No. 194 is that before its passage, the justice of
the peace had no power to conduct preliminary investigation of any offense triable by the Court of First
Instance, which alone can conduct such preliminary investigation of a crime under its original jurisdiction
pursuant to General Order No. 58. But its enactment did not divest the Court of First Instance of such
authority. In the 1939 case of Marcos, et al. versus Cruz, the Supreme Court, through Justice Imperial,
sustained the power of the Court of First Instance to conduct preliminary investigations under Sections 13
and 14 of General Order No. 58 (68 Phil. 96, 106-107), which was impliedly followed in the 1947 case
of Temporosa versus Yatco, et al., supra.
While General Order No. 58 vested the authority in a magistrate, a generic term which includes judges of the
Courts of First Instance and justices of the peace; Section 1 of Act No. 194 is less categorical by employing
the clause "jurisdiction to hear and determine which is by law now vested in the judges of the Courts of First
Instance." The Philippine Bill of 1902 in a similar ambiguous vein contained such authority when it merely
provided that the "Supreme Court and the Courts of First Instance of the Philippine Islands shall possess and
exercise jurisdiction as heretofore provided and such additional jurisdiction as shall hereafter be prescribed
by the Government of said Islands, subject to the power of said Government to change the practice and
method of procedure. The municipal courts of said Islands shall possess and exercise jurisdiction as
heretofore provided by the Philippine Commission, subject in all matters to such alteration and amendment
as maybe hereafter enacted by law; ... " (Sec. 9, emphasis supplied).
Act No. 590 of January 9, 1903 further amended Act No. 194 by extending the power to conduct preliminary
investigation to the justice of the peace of the provincial capital or of the town wherein the provincial jail is
situated of crimes committed anywhere within the province but again utilized the equivocal
clause "jurisdiction to hear and determine which is by law now vested in the Court's of First Instance; ... (Sec.
7, Act 590, emphasis supplied). Act No. 1627 of July 1 1907 had the virtue of greater clarity when if
authorized expressly every justice of the peace, including the justice of the peace of Manila, to "conduct
preliminary investigation of all crimes and offenses alleged to have been comitted within his municipality and
cognizable by Court of First Instance, but this shall not exclude the proper judge of the Court of First Instance
of a municipal court from or of a municipality in which the provincial jail is located, when directed by an order
from the judge of First Instance, shall have jurisdiction to conduct investigation at the expense of the
municipality wherein the crime or offense was committed although alleged to have been committed
anywhere within the province, to issue orders of arrest, ... (Sec. 37, Act No. 1627, emphasis supplied).
The Jones Law of 1916, like the Philippine Bill of 1902, merely provides "that the Supreme Court and the
Courts of First Instance of the Philippine Islands shall possess and exercise jurisidiction as heretofore provided
and such additional jurisdiction as shall hereafter be prescribed by law" (Sec. 26, Jones Law). Section 2474 of

the Revised Administrative Code of 1917 re-affirms the power of the Court of First Instance of Manila to
conduct preliminary examination
Sec. 2474. Persons arrested to be promptly brought before a court. Preliminary examination in municipal
court and Court of First Instance. Every person arrested shall, without unnecessary delay, be brought
before the municipal court, or the Court of First Instance for preliminary hearing, release on bail, or trial. In
cases triable in the municipal court the defendant shall not be entitled as of right to a preliminary
examination, except a summary one to enable the court to fix the bail, in any case where the prosecution
announces itself and is ready for trial within three days, not including Sundays, after the request for an
examination is presented. In cases triable only in the Court of First Instance the defendant shall not be
entitled as of right to a preliminary examination in any case where the fiscal of the city, after a due
investigating of the facts, shall have presented an information against him in proper form. But the Court of
Firs Instance may make such summary investigation into the case as it may necessary to enable it to fix
the bail or to determine whether the offense is bailable. (emphasis supplied).
It is clear that both the Manila Court of First Instance and municipal court can conduct a preliminary hearing
or examination. Section 2474 aforequoted, adds, however, that the City Fiscal impliedly may conduct such
preliminary examination; because it provides that in "cases triable only in the Court of First Instance the
defendant shall not be entitled as of right to a preliminary examination in any case where the fiscal of the
city, after a due investigation of the facts, shall have presented an information against him in proper form. It
will be noted, however, that it is only after the City Fiscal has conducted a preliminary examination that the
accused ceases to "be entitled as of right" to a preliminary examination by the Judge of the Court of First
Instance who, however, retains inferentially the discretion to conduct another preliminary investigation
because the Court of First Instance Judge is not foreclosed by the preliminary examination conducted by the
City Fiscal. But, when the City Fiscal has not conducted any preliminary examination, the Court of First
Instance Judge himself certainly can proceed with such preliminary examination, which the defendant can
demand as a matter of right.
Act No. 3042 of March 10, 1922, while amending Section 13 of General Order No. 58, re-states the power of
the magistrate to conduct the preliminary examination for the issuance of the warrant of arrest. Act No. 4178
of December 5, 1934 further amended Section 13 of General Order No. 58 but still retained the authority of
the magistrate to conduct the preliminary examination. As herefofore stated, Sections 13 and 14 of General
Order No. 58, as amended, were applied by the Supreme Court in Marcos, et al. versus Cruz (68 Phil. 96, 106107). Under the jurisprudence then or prior to the 1935 Constitution, the preliminary investigation before the
justice of the peace or muncipal court consisted of two stages, namely, preliminary examination for the
issuance of the warrant of arrest where only the complainant and his witnesses are heard by the justice of
the peace; and the second stage where the accused and his witnesses are heard. The Judge of the Court of
First Instance conducts only the first stage, that is, preliminary examination for purposes of the issuance of
the warrant of arrest, to be followed by the actual trial (Marcos, vs. Cruz, supra; People vs. Moreno, 77 Phil.
548, 555 [1946]).
The basic source of the power of the Courts of First Instance to conduct preliminary examination or
investigation from May 14, 1935 to January 17, 1973, is paragraph 3 of Section 1 of Article III of the 1935
Constitution, which guarantees "the right of the people to be secure in their persons ... against
unreasonable ... seizures ... and no warrants shall issue but upon probable cause, to be determined by the
judge after an examination under oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing ... the persons ... to be seized." Construing the foregoing constitutional right
against unreasonable searches and seizures, the Supreme Court, through then Chief Justice Ricardo Paras,
pronounced that the determination of the existence of "probable cause must depend upon the judgment and
discretion of the judge ... issuing the warrant. ... His conclusion as to whether "probable cause" existed or not
is final and conclusive. If he is satisfied that "probable cause" exists from the facts stated in the complaint,
made upon the investigation by the prosecuting attorney, then his conclusion is sufficient upon which to

issue a warrant of arrest. He may, however, if he is not satisfied, call such witnesses as he may deem
necessary before issuing the warrant. ... There is no law which prohibits him from reaching the conclusion
that "probable cause" exists from the statement of the prosecuting attorney alone, or any other person
whose statement or affidavit is entitled to credit in the opinion of the judge ... The preliminary investigation
conducted by the petitioner (Provincial Fiscal) under Republic Act No. 732 ... does not, as correctly contended
by the respondent Judge, dispense with the latter's duty to exercise his judicial power of determining, before
issuing the corresponding warrant of arrest, whether or not probable cause exists therefor. The Constitution
vests such power in the respondent judge who, however, may rely on the facts stated in the prosecuting
attorney" (Amarga vs. Abbas, March 28, 195l, 98 Phil. 739, 741-742).
While the power to conduct preliminary examination may be delegated by law to government prosecutors,
only the judge can issue the warrant of arrest under the 1935 Constitution and prior thereto (Sayo, et al. vs.
Chief of Police, et al. 80 Phil. 859; Lino vs. Fugoso, 77 Phil. 933; Hashim vs. Boncan, 71 Phil. 216). The valid
seizure of a person can only be executed through a lawful warrant of arrest. Arrest without a warrant can only
be legally effected by a police officer or private individual a) when the person to be arrested has committed,
is actually committing, or is about to commit an offense in his presence; b) when an offense has in fact been
committed, and he has reasonable ground to believe that the person to be arrested has committed it; and c)
when the person to be arrested is a prisoner who has escaped from a penal establishment or place where he
is serving final judgment or temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another (Sec. 6, Rule 113, 1964 Revised Rules of Court).
In all other cases, there must be a valid warrant of arrest. When the seizure of a person is made without a
warrant of arrest or with a warrant of arrest which is not based on a determination by the judge of the
existence of probable cause, the arrest becomes unreasonable and therefore unconstitutional. Sections 2 and
4 of Rule 108 of the 1940 Rules of Court expressly confer on the municipal or city judge, the City Final and
the Judge of the Court of First Instance the power to conduct preliminary examination or investigation. On
June 20, 1957, Republic Act No. 1700, otherwise known as the Anti-Subversion Law, was approved. The
proviso of Section 5 thereof expressly provides that the preliminary investigation of offenses defined and
penalized therein by prision mayor to death shall be conducted by the proper Court of First Instance. This
grant obviously is exclusive of the provincial or city fiscal or other government prosecutors whose power to
conduct preliminary investigation in all other cases is affirmed in the first clause of Section 5 thereof.
Sections 13 and 14 of the 196.4 Revised Rules of Court re-state Sections 2 and 4 of Rule 108 of the 1940
Rules of Court. As aforestated, aside from the challenged Sections 3 and 6 of Republic Act No. 5179 creating
the Circuit Criminal Courts, Republic Act 5180 was approved on September 8, 1967, which affirms the
prerogative of the Courts of First Instance to conduct preliminary investigation of offenses punishable by said
courts.
Presidential Decrees Nos. 77 and 911 promulgated respectively on December 6, 1972 and March 23, 1976.
amending Republic Act No. 5180, did not modify the opening clause of Section 1 of said Republic Act 5180
affirming the power of the Court of First Instance to conduct preliminary investigation in accordance with law
and the Rules of Court. Section 234 of the 1971 Revised Election Code, otherwise known as Republic Act No.
6388, vests in the Court of First Instance "exclusive original jurisdiction to make preliminary investigations,
issue warrants of arrest and try and decide any criminal case or proceeding for violation of" the Election Law.
This provision was a reiteration of the previous election laws (Act No. 1582 of 1907; Com. Act No. 357 of
1938; and Republic Act No. 180 of 1947, as amended).
After the ratification of the 1973 Constitution on January 17, 1973, the source of the authority of the judge to
conduct preliminary examination for purposes of issuing a warrant of arrest, is still the Constitution, this time
the 1973 Constitution, which likewise guarantees "the right of the people to be secure in their persons ...
against unreasonable ... seizures for whatever nature and for any purpose ... and no search warrant

or warrant of arrestshall issue except upon probable cause to be determined by the judge, or such other
responsible officer as may be authorized by law, after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing ... the persons ... to be seized"
(Sec. 3 of Art. IV, 1973 Constitution). The 1973 Constitution, instead of employing the generic
term warrants to comprehend both search warrants and warrants of arrest, as did the 1935 Constitution,
expressly specifies "search warrants or warrants of arrest." The purpose of such specification was apparently
to clarify the doubt raised by the dissenting opinion of Mr. Justice Montemayor in the Amarrga case, supra,
that the 1935 Constitution merely guarantees against unreasonable searches but not against unreasonable
arrests, despite the fact that the constitutional guarantee expressly affirms "the right of the people to be
secure in their persons ... against unreasonable ... seizures ... and no warrant shall issue but upon probable
cause, to be determined by the persons ... to be seized" (Par. 3, See. 1, Art. III, 1935 Constitution).
In passing, the dissent of Justice Montemayor in the Amarga case seems to deny equal, if not greater,
importance to individual freedom from illegal arrest or arbitrary detention vis-a-vis property rights and right
against self-incrimination. It will also likewise be noted that the 1973 Constitution also authorizes the lawmaking authority to empower other responsible officers to conduct such preliminary examination for
purposes of the issuance of a warrant of arrest. As enunciated in the Amarga case and in U.S. versus Ocampo
(18 Phil. 1, 41-42), the government prosecutors may be authorized to conduct such preliminary examination
and their determination of the existence of probable cause may be relied upon by the , 23 SCRA judge, who
may, as a consequence, issue the warrant of arrest; although the judge himself is not precluded from
conducting his own preliminary examination despite the conclusion of the prosecuting attorney as to the
existence or non-existence of probable cause.
III. 1. The challenged order of July 6, 1971 issued by the respondent Judge in G.R. No. L-34038 (Collector of
Customs, etc. vs. Hon. Onofre Villaluz, et al.) dismissed the criminal complaint filed by petitioners therein
against private respondent with prejudice, obviously meaning that the case may not be refiled without
exposing the accused to double jeopardy. The respondent Judge seriously erred in so issuing said order,
contravening as it does a basic legal principle on double jeopardy, and committing thereby a grave abuse of
discretion. The constitutional right against double jeopardy exists, not after the first preliminary examination
or investigation, but only after the first trial which results either in conviction or acquittal or in the dismissal
or termination of the case without the express consent of the accused by a court of competent jurisdiction
upon a valid complaint or information and after the accused had pleaded to the charge (Sec. 9, Rule 117,
Revised Rules of Court; Taladua vs. Ochotorena, et al. L-25595, February 15, 1974; Republic vs. Agoncillo, L27257, August 31, 1971, 40 SCRA 579; People vs. Obsania, L-24447, June 29, 1968, 23 SCRA 1249; People vs.
Ylagan, 58 Phil. 851).
As correctly stated by the Solicitor General, petitioner's counsel, "dismissal at preliminary investigation is
never with prejudice. Re-filing of the same is allowed if evidence has become sufficient to warrant conviction
of private respondent." There has been no deviation from such established jurisprudence exemplified
in People vs. Bagsican (6 SCRA 400), Wherein the Court held that "the finding in the preliminary investigation
that no prima facie case existed against the accused does not bar subsequent prosecution and conviction.
Such finding is not final acquittal as would preclude further proceedings" (Emphasis supplied).
2. Aggravating his grave mistake and misapprehension of the law, respondent Judge also directed through
the same order the return of the articles allegedly seized from the person of respondent Makapugay. This
portion of the question order is fraught with undesirable consequences. As stated heretofore, the dismissal of
a case, even with prejudice, during the stage of preliminary investigation does not bar subsequent
prosecution and conviction if the evidence warrants the re-filing of the same becomes next to impossible. For
the enforcement of such order would virtually deprive herein petitioner Collector of Customs of the evidence
indispensable to a successful prosecution of the case against the private respondent. Worse, the order
nullified the power of seizure of the customs official.

Respondent Judge ignored the established principle that from the moment imported goods are actually in the
possession or control of the Customs authorities, even if no warrant of seizure had previously been issued by
the Collector of Customs in connection with seizure and forfeiture proceedings, the Bureau of Customs
acquires exclusive jurisdiction over such imported goods for the purpose of enforcing the Customs laws,
subject to an appeal only to the Court of Tax Appeals and to final review by the Supreme Court (Section 2205
and 2303, Tariff and Customs Code; Papa, et al. vs. Mago, et al., Feb. 28, 1968, 22 SCRA 857; Virata, et al. vs.
Aquino, et al. Sept 30, 1973, 53 SCRA, 24; see also Vierneza vs. Commissioner, July 30, 1968, 24 SCRA 394;
Farm Implement & Machinery vs. Commissioner, August 30, 1968, 24 SCRA 905; Lazatin vs. Commissioner, et
al., July 30, 1969, SCRA 1016; Asaali, et al. vs. Commissioner, December 16, 1968, 26 SCRA 382; Sare
Enterprises vs. Commissioner, Aug. 28, 1969, 29 SCRA 112; Geotina, etc. vs. Court of Tax Appeals, et al.,
August 30, 1971, 40 SCRA 362; Commissioner vs. Court of Tax Appeals, et al., January 31, 1972; Lopez vs.
Commissioner, et al., January 30, 1971, 37 SCRA 327; Geotina vs. Broadway, etc., et al., January 30, 1971,
37, SCRA 410; Auyong Hian vs. Court of Tax Appeals, et al., September 12, 1974, 59 SCRA 110; and Pacis, et
al., vs. Pamaran, etc., et al., March 15, 1974, 56 SCRA 16). Such exclusive jurisdiction precludes the Court of
First Instance as well as the Circuit Criminal Court from assuming cognizance of the subject matter (Enrile, et
al. vs. Venuya, et al., January 30, 1971, 37 SCRA 381) and divests such courts of the prerogative to replevin
properties subject to seizure and forfeiture proceedings for violation of the Tariff and Customs Code
(Diosamito, et al. vs. Balanque, et al., July 28, 1969, 28 SCRA 836; Seares vs. Frias, June 10, 1971, 39 SCRA
533); because proceedings for the forfeiture of goods illegally imported are not criminal in nature since they
do not result in the conviction of wrongdoer nor in the imposition upon him of a penalty (Lazatin vs.
Commissioner, et al., July 30, 1969, 28 SCRA 1016).
Respondent Judge claims that the pendency of a seizure proceeding was never brought to his attention (p.
038, rec.) and that he could not have foreseen the possibility that petitioner would be instituting seizure
proceedings ... and besides, it is understood that the order of the court commanding the release of the
subject articles was on a premise that herein petitioner was not holding or withholding the same for some
other lawful reason (p.39, rec.). The questioned order of respondent Judge is unqualified and contains no
intimation that the "release ... was on a premise that herein petitioner was not holding or withholding the
same for some other lawful reason." On the contrary, the tenor of the order is so absolute and so emphatic
that it really leaves no alternative for petitioner Collector of Customs except to return the articles.
The records of the case, moreover, reveal that a report of seizure (p. 14, rec.) and warrant of seizure and
detention (p. 15, rec.) were made by petitioner Collector of Customs on June 30, 1971 and on July 9, 1971
respectively. It is patent that respondent Judge knew actually of the existence at least of the report of seizure
of June 30, 1971, which is six days prior to his order of dismissal dated July 6, 1971. He should have
anticipated that a warrant of seizure and detention will logically be issued as in fact it was issued on July 9,
1971, because it was the petitioner Collector of Customs who filed the criminal complaint directly with him on
July 1, 1971. Respondent Judge chose to ignore the presence of the report of seizure dated June 30, 1971, six
days before his order of dismissal and the filing of the criminal complaint on July 1, 1971. Prudence should
have counselled him, so as not to frustrate the petitioner Collector of Customs in enforcing the tariff and
customs laws, against ordering the release of the seized articles without first ascertaining from the petitioner
Collector of Customs whether the latter intended to institute or had instituted seizure proceedings.
As aptly expressed by Mr. Justice Barredo in his Concurring Opinion in People vs. Gutierrez, supra, "It is not
enough that a judge trusts himself or can be trusted as capable of acting in good faith, it is equally important
that no circumstance attendant to the proceedings should mar that quality of trust worthiness." We have
enjoined judges to apply the law as interpreted by the Supreme Court and not to dispose of a case according
to their personal views (Albert vs. Court of First Instance, 23 SCRA 948).
IV. In G.R. No. L-36376 (Enriquez, et al. vs. Hon. Onofre Villaluz, et al.), the arbitrary denials displayed by
respondent Judge of motions presented before him likewise invite some cautionary reminders from this Court.
In this case, petitioners were given an unreasonable period of one (1) day within which to elevate the matter

before this Tribunal. But considering the novelty of the issue, a grant of twenty-four hours to prepare a
petition for certiorari is a virtual denial of the motion. And petitioners' motion for an extension of at least one
(1) day was peremptorily brushed aside by respondent Judge with one single word DENIED.
The fact that petitioners succeeded in bringing the matter before the Supreme Court within the constricted
period of time granted them is beside the point. More important is the consideration by this Court of the
dangers posed by respondent Judge's peremptory denial of a reasonable time. Indeed, it is commendable to
see judges hasten the disposition of cases pending before them. But more commendable would be for judges
to contribute their share in maintaining the unswerving faith of litigants in the courts of justice. WE once
again stress that "One important judicial norm is that a judge's official conduct should be free from
appearance of impropriety" (Luque vs. Kayanan, 29 SCRA 165).
V. But while w sustain the power of the Circuit Criminal to conduct preliminary examination (p. 36), pursuant
to OUR constitutional power of administrative supervision over all courts (Sec. 6, Art. X, 1973 Constitution) as
a matter of policy, WE enjoin the respondent Judge and other Circuit Criminal Court Judges to concentrate on
hearing and deciding criminal cases filed before their courts (see Mateo vs. Villaluz, 50 SCRA 18, 28-29,
March 31, 1973). The primary purpose of the creation of the Circuit Criminal Courts in addition to the existing
Courts of First Instance, as above intimated, is to mitigate the case load of the Courts of First Instance as well
as to expedite the disposition of criminal cases involving serious offenses specified in Section I of Republic
Act 5179, as amended. Circuit Criminal Judges therefore, should not encumber themselves with the
preliminary examination and investigation of criminal complaints, which they should refer to the municipal
judge or provincial or city fiscal, who in turn can utilize the assistance of the state prosecutor to conduct such
preliminary examination and investigation. Or the Judge of the Circuit Criminal Court can directly request the
Secretary of Justice to assign a state prosecutor for the same purpose (See. 3, Republic Act No. 5184).
Moreover, it seems that respondent Judge does not have adequate time to hear and dispose of the 34
criminal cases with detention prisoners pending in his sala, aside from the 479 pending cases of voluntary
submission by drug addicts, as of January 31, 1975 (A.M. No. 230-CCC, Item 42, Agenda of March 13, 1975),
as revealed by his letter dated February 26, 1975, wherein he requested the Supreme Court to renew the
detail in his sala of Municipal Judge Hermenegildo C. Cruz of Mandaluyong, Rizal, to assist him. This
significant fact should further dissuade him from actively conducting the preliminary investigation of criminal
cases directly filed with him. Furthermore, Judges of the Circuit Criminal Courts whose dockets permit, may
be assigned by the Supreme Court for a period not exceeding 6 months, unless with their consent, to assist
Judges of regular Courts of First Instance with clogged dockets (Sec. 5[3], Art. X, 1973 Constitution).
Wherefore, in GR Nos L-34243, 36376, 38688 and 39525, the petitions are hereby dismissed and the writs of
preliminary injunction and/or restraining orders issued therein are hereby lifted; in GR No. L-40031, the
petition is hereby dismissed; and in GR No. L-34038, the order of respondent judge dated july 6, 1971 is
hereby set aside as null and void insofar as the same dismissed the criminal case with prejudice and insofar
as the same directed the return to private respondent therein of the articles seized from him which are now
subject of seizure proceedings before the customs authorities, and the writ of preliminary injunction issued
therein is hereby made permanent.
OCCENA VS COMELEC (104 SCRA 1; FERNANDO, CJ)
The challenge in these two prohibition proceedings against the validity of three Batasang Pambansa
Resolutions proposing constitutional amendments, goes further than merely assailing their alleged
constitutional infirmity. Petitioners Samuel Occena and Ramon A. Gonzales, both members of the Philippine
Bar and former delegates to the 1971 Constitutional Convention that framed the present Constitution, are
suing as taxpayers. The rather unorthodox aspect of these petitions is the assertion that the 1973
Constitution is not the fundamental law, the Javellana ruling to the contrary notwithstanding. To put it at its

mildest, such an approach has the arresting charm of novelty but nothing else. It is in fact self defeating,
for if such were indeed the case, petitioners have come to the wrong forum. We sit as a Court duty-bound to
uphold and apply that Constitution. To contend otherwise as was done here would be, quite clearly, an
exercise in futility. Nor are the arguments of petitioners cast in the traditional form of constitutional litigation
any more persuasive. For reasons to be set forth, we dismiss the petitions.
The suits for prohibition were filed respectively on March 6 and March 12, 1981. On March 10 and 13
respectively, respondents were required to answer each within ten days from notice. There was a comment
on the part of the respondents. Thereafter, both cases were set for hearing and were duly argued on March
26 by petitioners and Solicitor General Estelito P. Mendoza for respondents. With the submission of pertinent
data in amplification of the oral argument, the cases were deemed submitted for decision. It is the ruling of
the Court, as set forth at the outset, that the petitions must be dismissed.
1. It is much too late in the day to deny the force and applicability of the 1973 Constitution. In the dispositive
portion of Javellana v. The Executive Secretary, dismissing petitions for prohibition and mandamus to declare
invalid its ratification, this Court stated that it did so by a vote of six to four. It then concluded: "This being
the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force
and effect. Such a statement served a useful purpose. It could even be said that there was a need for it. It
served to clear the atmosphere. It made manifest that, as of January 17, 1973, the present Constitution came
into force and effect. With such a pronouncement by the Supreme Court and with the recognition of the
cardinal postulate that what the Supreme Court says is not only entitled to respect but must also be obeyed,
a factor for instability was removed. Thereafter, as a matter of law, all doubts were resolved. The 1973
Constitution is the fundamental law. It is as simple as that. What cannot be too strongly stressed is that the
function of judicial review has both a positive and a negative aspect. As was so convincingly demonstrated
by Professors Black and Murphy, the Supreme Court can check as well as legitimate. In declaring what the
law is, it may not only nullify the acts of coordinate branches but may also sustain their validity. In the latter
case, there is an affirmation that what was done cannot be stigmatized as constitutionally deficient. The
mere dismissal of a suit of this character suffices. That is the meaning of the concluding statement in
Javellana. Since then, this Court has invariably applied the present Constitution. The latest case in point
is People v. Sola, promulgated barely two weeks ago. During the first year alone of the effectivity of the
present Constitution, at least ten cases may be cited.
2. We come to the crucial issue, the power of the Interim Batasang Pambansa to propose amendments and
how it may be exercised. More specifically as to the latter, the extent of the changes that may be introduced,
the number of votes necessary for the validity of a proposal, and the standard required for a proper
submission. As was stated earlier, petitioners were unable to demonstrate that the challenged resolutions are
tainted by unconstitutionality.
(1) The existence of the power of the Interim Batasang Pambansa is indubitable. The applicable provision in
the 1976 Amendments is quite explicit. Insofar as pertinent it reads thus: "The Interim Batasang Pambansa
shall have the same powers and its Members shall have the same functions, responsibilities, rights,
privileges, and disqualifications as the interim National Assembly and the regular National Assembly and the
Members thereof." One of such powers is precisely that of proposing amendments. The 1973 Constitution in
its Transitory Provisions vested the Interim National Assembly with the power to propose amendments upon
special call by the Prime Minister by a vote of the majority of its members to be ratified in accordance with
the Article on Amendments. When, therefore, the Interim Batasang Pambansa, upon the call of the President
and Prime Minister Ferdinand E. Marcos, met as a constituent body it acted by virtue Of such impotence Its
authority to do so is clearly beyond doubt. It could and did propose the amendments embodied in the
resolutions now being assailed. It may be observed parenthetically that as far as petitioner Occena is
Concerned, the question of the authority of the Interim Batasang Pambansa to propose amendments is not
new. In Occena v. Commission on Elections, filed by the same petitioner, decided on January 28, 1980, such a
question was involved although not directly passed upon. To quote from the opinion of the Court penned by

Justice Antonio in that case: "Considering that the proposed amendment of Section 7 of Article X of the
Constitution extending the retirement of members of the Supreme Court and judges of inferior courts from
sixty-five (65) to seventy (70) years is but a restoration of the age of retirement provided in the 1935
Constitution and has been intensively and extensively discussed at the Interim Batasang Pambansa, as well
as through the mass media, it cannot, therefore, be said that our people are unaware of the advantages and
disadvantages of the proposed amendment."
(2) Petitioners would urge upon us the proposition that the amendments proposed are so extensive in
character that they go far beyond the limits of the authority conferred on the Interim Batasang Pambansa as
Successor of the Interim National Assembly. For them, what was done was to revise and not to amend. It
suffices to quote from the opinion of Justice Makasiar, speaking for the Court, in Del Rosario v. Commission
on Elections to dispose of this contention. Thus: "3. And whether the Constitutional Convention will only
propose amendments to the Constitution or entirely overhaul the present Constitution and propose an
entirely new Constitution based on an Ideology foreign to the democratic system, is of no moment; because
the same will be submitted to the people for ratification. Once ratified by the sovereign people, there can be
no debate about the validity of the new Constitution. 4. The fact that the present Constitution may be revised
and replaced with a new one ... is no argument against the validity of the law because 'amendment' includes
the 'revision' or total overhaul of the entire Constitution. At any rate, whether the Constitution is merely
amended in part or revised or totally changed would become immaterial the moment the same is ratified by
the sovereign people." There is here the adoption of the principle so well-known in American decisions as
well as legal texts that a constituent body can propose anything but conclude nothing. We are not disposed
to deviate from such a principle not only sound in theory but also advantageous in practice.
(3) That leaves only the questions of the vote necessary to propose amendments as well as the standard for
proper submission. Again, petitioners have not made out a case that calls for a judgment in their favor. The
language of the Constitution supplies the answer to the above questions. The Interim Batasang Pambansa,
sitting as a constituent body, can propose amendments. In that capacity, only a majority vote is needed. It
would be an indefensible proposition to assert that the three-fourth votes required when it sits as a legislative
body applies as well when it has been convened as the agency through which amendments could be
proposed. That is not a requirement as far as a constitutional convention is concerned. It is not a requirement
either when, as in this case, the Interim Batasang Pambansa exercises its constituent power to propose
amendments. Moreover, even on the assumption that the requirement of three- fourth votes applies, such
extraordinary majority was obtained. It is not disputed that Resolution No. 1 proposing an amendment
allowing a natural-born citizen of the Philippines naturalized in a foreign country to own a limited area of land
for residential purposes was approved by the vote of 122 to 5; Resolution No. 2 dealing with the Presidency,
the Prime Minister and the Cabinet, and the National Assembly by a vote of 147 to 5 with 1 abstention; and
Resolution No. 3 on the amendment to the Article on the Commission on Elections by a vote of 148 to 2 with
1 abstention. Where then is the alleged infirmity? As to the requisite standard for a proper submission, the
question may be viewed not only from the standpoint of the period that must elapse before the holding of the
plebiscite but also from the standpoint of such amendments having been called to the attention of the people
so that it could not plausibly be maintained that they were properly informed as to the proposed changes. As
to the period, the Constitution indicates the way the matter should be resolved. There is no ambiguity to the
applicable provision: "Any amendment to, or revision of, this Constitution shall be valid when ratified by a
majority of the votes cast in a plebiscite which shall be held not later than three months after the approval of
such amendment or revision." The three resolutions were approved by the Interim Batasang Pambansa
sitting as a constituent assembly on February 5 and 27, 1981. In the Batasang Pambansa Blg. 22, the date of
the plebiscite is set for April 7, 1981. It is thus within the 90-day period provided by the Constitution. Thus
any argument to the contrary is unavailing. As for the people being adequately informed, it cannot be denied
that this time, as in the cited 1980 Occena opinion of Justice Antonio, where the amendment restored to
seventy the retirement age of members of the judiciary, the proposed amendments have "been intensively
and extensively discussed at the Interim Batasang Pambansa, as well as through the mass media, [ so that ]
it cannot, therefore, be said that our people are unaware of the advantages and disadvantages of the
proposed amendment [ s ]."

IMBONG VS COMELEC (35 SCRA 28; MAKASIAR, J)

These two separate but related petitions for declaratory relief were filed pursuant to Sec. 19 of R.A. No. 6132
by petitioners Manuel B. Imbong and Raul M. Gonzales, both members of the Bar, taxpayers and interested in
running as candidates for delegates to the Constitutional Convention. Both impugn the constitutionality of
R.A. No. 6132, claiming during the oral argument that it prejudices their rights as such candidates. After the
Solicitor General had filed answers in behalf the respondents, hearings were held at which the petitioners
and the amici curiae, namely Senator Lorenzo Taada, Senator Arturo Tolentino, Senator Jovito Salonga, and
Senator Emmanuel Pelaez argued orally.
It will be recalled that on March 16, 1967, Congress, acting as a Constituent Assembly pursuant to Art. XV of
the Constitution, passed Resolution No. 2 which among others called for a Constitutional Convention to
propose constitutional amendments to be composed of two delegates from each representative district who
shall have the same qualifications as those of Congressmen, to be elected on the second Tuesday of
November, 1970 in accordance with the Revised Election Code. After the adoption of said Res. No. 2 in 1967
but before the November elections of that year, Congress, acting as a legislative body, enacted Republic Act
No. 4914 implementing the aforesaid Resolution No. 2 and practically restating in toto the provisions of said
Resolution No. 2.
On June 17, 1969, Congress, also acting as a Constituent Assembly, passed Resolution No. 4 amending the
aforesaid Resolution No. 2 of March 16, 1967 by providing that the convention "shall be composed of 320
delegates apportioned among the existing representative districts according to the number of their
respective inhabitants: Provided, that a representative district shall be entitled to at least two delegates, who
shall have the same qualifications as those required of members of the House of Representatives," "and that
any other details relating to the specific apportionment of delegates, election of delegates to, and the
holding of, the Constitutional Convention shall be embodied in an implementing legislation: Provided, that it
shall not be inconsistent with the provisions of this Resolution."
On August 24, 1970, Congress, acting as a legislative body, enacted Republic Act No. 6132, implementing
Resolutions Nos. 2 and 4, and expressly repealing R.A. No. 4914. Petitioner Raul M. Gonzales assails the
validity of the entire law as well as the particular provisions embodied in Sections 2, 4, 5, and par. 1 of 8(a).
Petitioner Manuel B. Imbong impugns the constitutionality of only par. I of Sec. 8(a) of said R.A. No. 6132
practically on the same grounds advanced by petitioner Gonzales.
I. The validity of Sec. 4 of R.A. No. 6132, which considers, all public officers and employees, whether elective
or appointive, including members of the Armed Forces of the Philippines, as well as officers and employees of
corporations or enterprises of the government, as resigned from the date of the filing of their certificates of
candidacy, was recently sustained by this Court, on the grounds, inter alia, that the same is merely an
application of and in consonance with the prohibition in Sec. 2 of Art. XII of the Constitution and that it does
not constitute a denial of due process or of the equal protection of the law. Likewise, the constitutionality of
paragraph 2 of Sec. 8(a) of R.A. No. 6132 was upheld.
II. Without first considering the validity of its specific provisions, we sustain the constitutionality of the
enactment of R.A. No. 6132 by Congress acting as a legislative body in the exercise of its broad law-making
authority, and not as a Constituent Assembly, because
1. Congress, when acting as a Constituent Assembly pursuant to Art. XV of the Constitution, has full and
plenary authority to propose Constitutional amendments or to call a convention for the purpose, by a
three-fourths vote of each House in joint session assembled but voting separately. Resolutions Nos. 2 and 4
calling for a constitutional convention were passed by the required three-fourths vote.
2. The grant to Congress as a Constituent Assembly of such plenary authority to call a constitutional
convention includes, by virtue of the doctrine of necessary implication, all other powers essential to the

effective exercise of the principal power granted, such as the power to fix the qualifications, number,
apportionment, and compensation of the delegates as well as appropriation of funds to meet the expenses
for the election of delegates and for the operation of the Constitutional Convention itself, as well as all
other implementing details indispensable to a fruitful convention. Resolutions Nos. 2 and 4 already
embody the above-mentioned details, except the appropriation of funds.
3. While the authority to call a constitutional convention is vested by the present Constitution solely and
exclusively in Congress acting as a Constituent Assembly, the power to enact the implementing details,
which are now contained in Resolutions Nos. 2 and 4 as well as in R.A. No. 6132, does not exclusively
pertain to Congress acting as a Constituent Assembly. Such implementing details are matters within the
competence of Congress in the exercise of its comprehensive legislative power, which power encompasses
all matters not expressly or by necessary implication withdrawn or removed by the Constitution from the
ambit of legislative action. And as lone as such statutory details do not clash with any specific provision of
the constitution, they are valid.
4. Consequently, when Congress, acting as a Constituent Assembly, omits to provide for such
implementing details after calling a constitutional convention, Congress, acting as a legislative body, can
enact the necessary implementing legislation to fill in the gaps, which authority is expressly recognized in
Sec. 8 of Res No. 2 as amended by Res. No. 4.
5. The fact that a bill providing for such implementing details may be vetoed by the President is no
argument against conceding such power in Congress as a legislative body nor present any difficulty; for it
is not irremediable as Congress can override the Presidential veto or Congress can reconvene as a
Constituent Assembly and adopt a resolution prescribing the required implementing details.
III. Petitioner Raul M. Gonzales asserts that Sec. 2 on the apportionment of delegates is not in accordance
with proportional representation and therefore violates the Constitution and the intent of the law itself,
without pinpointing any specific provision of the Constitution with which it collides. Unlike in the
apportionment of representative districts, the Constitution does not expressly or impliedly require such
apportionment of delegates to the convention on the basis of population in each congressional district.
Congress, sitting as a Constituent Assembly, may constitutionally allocate one delegate for, each
congressional district or for each province, for reasons of economy and to avoid having an unwieldy
convention. If the framers of the present Constitution wanted the apportionment of delegates to the
convention to be based on the number of inhabitants in each representative district, they would have done
so in so many words as they did in relation to the apportionment of the representative districts.
The apportionment provided for in Sec. 2 of R.A. No. 6132 cannot possibly conflict with its own intent
expressed therein; for it merely obeyed and implemented the intent of Congress acting as a Constituent
Assembly expressed in Sec. 1 of Res. No. 4, which provides that the 320 delegates should be apportioned
among the existing representative districts according to the number of their respective inhabitants, but fixing
a minimum of at least two delegates for a representative district. The presumption is that the factual
predicate, the latest available official population census, for such apportionment was presented to Congress,
which, accordingly employed a formula for the necessary computation to effect the desired proportional
representation.
The records of the proceedings on Senate Bill No. 77 sponsored by Senator Pelaez which is now R.A. No.
6132, submitted to this Tribunal by the amici curiae, show that it based its apportionment of the delegates on
the 1970 official preliminary population census taken by the Bureau of Census and Statistics from May 6 to
June 30, 1976; and that Congress adopted the formula to effect a reasonable apportionment of delegates.
The Director of the Bureau of Census and Statistics himself, in a letter to Senator Pelaez dated July 30, 1970,
stated that "on the basis of the preliminary count of the population, we have computed the distribution of
delegates to the Constitutional Convention based on Senate Bill 77 (p. 2 lines 5 to 32 and p. 3 line 12) which
is a fair and an equitable method of distributing the delegates pursuant to the provisions of the joint
Resolution of both Houses No. 2, as amended. Upon your request at the session of the Senate-House

Conference Committee meeting last night, we are submitting herewith the results of the computation on the
basis of the above-stated method."
Even if such latest census were a preliminary census, the same could still be a valid basis for such
apportionment. The fact that the lone and small congressional district of Batanes, may be over-represented,
because it is allotted two delegates by R.A. No. 6132 despite the fact that it has a population very much less
than several other congressional districts, each of which is also allotted only two delegates, and therefore
under-represented, vis-a-vis Batanes alone, does not vitiate the apportionment as not effecting proportional
representation. Absolute proportional apportionment is not required and is not possible when based on the
number of inhabitants, for the population census cannot be accurate nor complete, dependent as it is on the
diligence of the census takers, aggravated by the constant movement of population, as well as daily death
and birth. It is enough that the basis employed is reasonable and the resulting apportionment is substantially
proportional. Resolution No. 4 fixed a minimum of two delegates for a congressional district.
While there may be other formulas for a reasonable apportionment considering the evidence submitted to
Congress by the Bureau of Census and Statistics, we are not prepared to rule that the computation formula
adopted by, Congress for proportional representation as, directed in Res. No. 4 is unreasonable and that the
apportionment provided in R.A. No. 6132 does not constitute a substantially proportional representation. In
the Macias case, relied on by petitioner Gonzales, the apportionment law, which was nullified as
unconstitutional, granted more representatives to a province with less population than the provinces with
more inhabitants. Such is not the case here, where under Sec. 2 of R.A. No. 6132 Batanes is allotted only two
delegates, which number is equal to the number of delegates accorded other provinces with more
population. The present petitions therefore do not present facts which fit the mould of the doctrine in the
case of Macias et al. vs. Comelec, supra.
The impossibility of absolute proportional representation is recognized by the Constitution itself when it
directs that the apportionment of congressional districts among the various provinces shall be " as nearly as
may be according to their respective inhabitants, but each province shall have at least one member" (Sec. 5,
Art. VI, Phil. Const., emphasis supplied). The employment of the phrase "as nearly as may be according to
their respective inhabitants" emphasizes the fact that the human mind can only approximate a reasonable
apportionment but cannot effect an absolutely proportional representation with mathematical precision or
exactitude.
IV. Sec. 5 of R.A. 6132 is attacked on the ground that it is an undue deprivation of liberty without due
process of law and denies the equal protection of the laws. Said Sec. 5 disqualifies any elected delegate from
running "for any public office in any election" or from assuming "any appointive office or position in any
branch of the government government until after the final adjournment of the Constitutional Convention."
That the citizen does not have any inherent nor natural right to a public office, is axiomatic under our
constitutional system. The State through its Constitution or legislative body, can create an office and define
the qualifications and disqualifications therefor as well as impose inhibitions on a public officer.
Consequently, only those with qualifications and who do not fall under any constitutional or statutory
inhibition can be validly elected or appointed to a public office. The obvious reason for the questioned
inhibition, is to immunize the delegates from the perverting influence of self-interest, party interest or vested
interest and to insure that he dedicates all his time to performing solely in the interest of the nation his high
and well nigh sacred function of formulating the supreme law of the land, which may endure for generations
and which cannot easily be changed like an ordinary statute. With the disqualification embodied in Sec. 5,
the delegate will not utilize his position as a bargaining leverage for concessions in the form of an elective or
appointive office as long as the convention has not finally adjourned. The appointing authority may, by his
appointing power, entice votes for his own proposals. Not love for self, but love for country must always
motivate his actuations as delegate; otherwise the several provisions of the new Constitution may only

satisfy individual or special interests, subversive of the welfare of the general citizenry. It should be stressed
that the disqualification is not permanent but only temporary only to continue until the final adjournment of
the convention which may not extend beyond one year. The convention that framed the present Constitution
finished its task in approximately seven months from July 30, 1934 to February 8, 1935.
As admitted by petitioner Gonzales, this inhibition finds analogy in the constitutional provision prohibiting a
member of Congress, during the time for which he was elected, from being appointed to any civil office which
may have been created or the emolument whereof shall have been increased while he was a member of the
Congress. (Sec. 16, Art. VI, Phil. Constitution.) As observed by the Solicitor General in his Answer, the
overriding objective of the challenged disqualification, temporary in nature, is to compel the elected
delegates to serve in full their term as such and to devote all their time to the convention, pursuant to their
representation and commitment to the people; otherwise, his seat in the convention will be vacant and his
constituents will be deprived of a voice in the convention. The inhibition is likewise "designed to prevent
popular political figures from controlling elections or positions. Also it is a brake on the appointing power, to
curtail the latter's desire to 'raid' the convention of "talents" or attempt to control the convention." (p. 10,
Answer in L-32443.)
Thus the challenged disqualification prescribed in Sec. 5 of R.A. No. 6132 is a valid limitation on the right to
public office pursuant to state police power as it is reasonable and not arbitrary. The discrimination under
Sec. 5 against delegates to the Constitutional Convention is likewise constitutional; for it is based on a
substantial distinction which makes for real differences, is germane to the purposes of the law, and applies to
all members of the same class. 7 The function of a delegate is more far-reaching and its effect more enduring
than that of any ordinary legislator or any other public officer. A delegate shapes the fundamental law of the
land which delineates the essential nature of the government, its basic organization and powers, defines the
liberties of the people, and controls all other laws. Unlike ordinary statutes, constitutional amendments
cannot be changed in one or two years. No other public officer possesses such a power, not even the
members of Congress unless they themselves, propose constitutional amendments when acting as a
Constituent Assembly pursuant to Art. XV of the Constitution. The classification, therefore, is neither
whimsical nor repugnant to the sense of justice of the community.
As heretofore intimated, the inhibition is relevant to the object of the law, which is to insure that the
proposed amendments are meaningful to the masses of our people and not designed for the enhancement of
selfishness, greed, corruption, or injustice. Lastly, the disqualification applies to all the delegates to the
convention who will be elected on the second Tuesday of November, 1970.
V. Paragraph 1, Sec. 8(a) of R.A. No. 6132 is impugned by both petitioners as violative of the constitutional
guarantees of due process, equal protection of the laws, freedom of expressions, freedom of assembly and
freedom of association. This Court ruled last year that the guarantees of due process, equal protection of the
laws, peaceful assembly, free expression, and the right of association are neither absolute nor illimitable
rights; they are always subject to the pervasive and dormant police power of the State and may be lawfully
abridged to serve appropriate and important public interests. 8
In said Gonzalez vs. Comelec case the Court applied the clear and present danger test to determine whether
a statute which trenches upon the aforesaid Constitutional guarantees, is a legitimate exercise of police
power. Paragraph 1 of Sec. 8(a), R.A. No. 6132 prohibits:
1. any candidate for delegate to the convention
(a) from representing, or
(b) allowing himself to be represented as being a candidate of any political party or any other
organization; and
2. any political party, political group, political committee, civic, religious, professional or other
organizations or organized group of whatever nature from
(a) intervening in the nomination of any such candidate or in the filing of his certificate, or

(b) from giving aid or support directly or indirectly, material or otherwise, favorable to or against his
campaign for election.
The ban against all political parties or organized groups of whatever nature contained in par. 1 of Sec. 8(a), is
confined to party or organization support or assistance, whether material, moral, emotional or otherwise. The
very Sec. 8(a) in its provisos permits the candidate to utilize in his campaign the help of the members of his
family within the fourth civil degree of consanguinity or affinity, and a campaign staff composed of not more
than one for every ten precincts in his district. It allows the full exercise of his freedom of expression and his
right to peaceful assembly, because he cannot be denied any permit to hold a public meeting on the pretext
that the provision of said section may or will be violated. The right of a member of any political party or
association to support him or oppose his opponent is preserved as long as such member acts individually.
The very party or organization to which he may belong or which may be in sympathy with his cause or
program of reforms, is guaranteed the right to disseminate information about, or to arouse public interest in,
or to advocate for constitutional reforms, programs, policies or constitutional proposals for amendments.
It is therefore patent that the restriction contained in Sec. 8(a) is so narrow that the basic constitutional
rights themselves remain substantially intact and inviolate. And it is therefore a valid infringement of the
aforesaid constitutional guarantees invoked by petitioners. In the aforesaid case of Gonzales vs. Comelec,
supra, this Court unanimously sustained the validity of the limitation on the period for nomination of
candidates in Sec. 50-A of R.A. No. 4880, thus:
The prohibition of too early nomination of candidates presents a question that is not too formidable in
character. According to the act: "It shall be unlawful for any political party, political committee, or political
group to nominate candidates for any elective public office voted for at large earlier than one hundred and
fifty days immediately preceding an election, and for any other elective public office earlier than ninety
days immediately preceding an election.
The right of association is affected. Political parties have less freedom as to the time during which they
may nominate candidates; the curtailment is not such, however, as to render meaningless such a basic
right. Their scope of legitimate activities, save this one, is not unduly narrowed. Neither is there
infringement of their freedom to assemble. They can do so, but not for such a purpose. We sustain its
validity. We do so unanimously.
In said Gonzales vs. Comelec case, this Court likewise held that the period for the conduct of an election
campaign or partisan political activity may be limited without offending the aforementioned constitutional
guarantees as the same is designed also to prevent a "clear and present danger of a substantive evil, the
debasement of the electoral process. Even if the partisan activity consists of (a) forming organizations,
associations, clubs, committees or other group of persons for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against a party or candidate; (b) holding political
conventions, caucuses, conferences, meetings, rallies, parades or other similar assemblies for the purpose of
soliciting votes and/or undertaking any campaign or propaganda for or against any candidate or party; and
(c) giving, soliciting, or receiving contributions for election campaign either directly or indirectly, (Sec. 50-B,
pars. (a), (b), and (c), R.A. 4880), the abridgment was still affirmed as constitutional by six members of this
Court, which could not "ignore ... the legislative declaration that its enactment was in response to a serious
substantive evil affecting the electoral process, not merely in danger of happening, but actually in existence,
and likely to continue unless curbed or remedied. To assert otherwise would be to close one's eyes to the
reality of the situation."
Likewise, because four members dissented, this Court in said case of Gonzales vs. Comelec, supra, failed to
muster the required eight votes to declare as unconstitutional the limitation on the period for (a) making
speeches, announcements or commentaries or holding interviews for or against the election of any party or

candidate for public office; (b) publishing or distributing campaign literature or materials; and (e) directly or
indirectly soliciting votes and/or undertaking any campaign or propaganda for or against any candidate or
party specified in Sec. 50-B, pars. (c), (d) & (e) of R.A. 4880.
The debasement of the electoral process as a substantive evil exists today and is one of the major
compelling interests that moved Congress into prescribing the total ban contained in par. 1 of Sec. 8(a) of
R.A. No. 6132, to justify such ban. In the said Gonzales vs. Comelec case, this Court gave "due recognition to
the legislative concern to cleanse, and if possible, render spotless, the electoral process," impressed as it was
by the explanation made by the author of R.A. No. 4880, Sen. Lorenzo Taada, who appeared as amicus
curiae, "that such provisions were deemed by the legislative body to be part and parcel of the necessary and
appropriate response not merely to a clear and present danger but to the actual existence of a grave and
substantive evil of excessive partisanship, dishonesty and corruption as well as violence that of late has
marred election campaigns and partisan political activities in this country. He did invite our attention likewise
to the well-settled doctrine that in the choice of remedies for an admitted malady requiring governmental
action, on the legislature primarily rests the responsibility. Nor should the cure prescribed by it, unless clearly
repugnant to fundamental rights, be ignored or disregarded."
But aside from the clear and imminent danger of the debasement of the electoral process, as conceded by
Senator Pelaez, the basic motivation, according to Senate Majority Floor Leader Senator Arturo Tolentino, the
sponsor of the Puyat-Tolentino amendment embodied in par. 1 of Sec. 8(a) of R.A. No. 6132, is to assure the
candidates equal protection of the laws by according them equality of chances. The primary purpose of the
prohibition then is also to avert the clear and present danger of another substantive evil, the denial of the
equal protection of the laws. The candidates must depend on their individual merits and not on the support
of political parties or organizations. Senator Tolentino and Senator Salonga emphasized that under this
provision, the poor candidate has an even chance as against the rich candidate. We are not prepared to
disagree with them, because such a conclusion, predicated as it is on empirical logic, finds support in our
recent political history and experience. Both Senators stressed that the independent candidate who wins in
the election against a candidate of the major political parties, is a rare phenomenon in this country and the
victory of an independent candidate mainly rests on his ability to match the resources, financial and
otherwise, of the political parties or organizations supporting his opponent. This position is further
strengthened by the principle that the guarantee of social justice under Sec. V, Art. II of the Constitution,
includes the guarantee of equal opportunity, equality of political rights, and equality before the law
enunciated by Mr. Justice Tuazon in the case Guido vs. Rural Progress Administration.
While it may be true that a party's support of a candidate is not wrong per se it is equally true that Congress
in the exercise of its broad law-making authority can declare certain acts as mala prohibita when justified by
the exigencies of the times. One such act is the party or organization support proscribed in Sec. 8(a), which
ban is a valid limitation on the freedom of association as well as expression, for the reasons aforestated.
Senator Tolentino emphasized that "equality of chances may be better attained by banning all organization
support." The questioned par. 1 of Sec. 8 (a) likewise can easily pass the balancing-of-interest test. In the apt
words of the Solicitor General:
It is to be noted that right now the nation is on the threshold of rewriting its Constitution in a hopeful
endeavor to find a solution to the grave economic, social and political problems besetting the country.
Instead of directly proposing the amendments Congress has chosen to call a Constitutional Convention
which shall have the task of fashioning a document that shall embody the aspirations and ideals of the
people. Because what is to be amended is the fundamental law of the land, it is indispensable that the
Constitutional Convention be composed of delegates truly representative of the people's will. Public
welfare demands that the delegates should speak for the entire nation, and their voices be not those of a
particular segment of the citizenry, or of a particular class or group of people, be they religious, political,
civic or professional in character. Senator Pelaez, Chairman of the Senate Committee on Codes and
Constitutional Amendments, eloquently stated that "the function of a constitution is not to represent

anyone in interest or set of interests, not to favor one group at the expense or disadvantage of the
candidates but to encompass all the interests that exist within our society and to blend them into one
harmonious and balanced whole. For the constitutional system means, not the predominance of interests,
but the harmonious balancing thereof."
So that the purpose for calling the Constitutional Convention will not be deflated or frustrated, it is
necessary that the delegatee thereto be independent, beholden to no one but to God, country and
conscience.
xxx xxx xxx
The evil therefore, which the law seeks to prevent lies in the election of delegates who, because they have
been chosen with the aid and resources of organizations, cannot be expected to be sufficiently
representative of the people. Such delegates could very well be the spokesmen of narrow political,
religious or economic interest and not of the great majority of the people.
We likewise concur with the Solicitor General that the equal protection of the laws is not unduly subverted in
par. I of Sec. 8(a); because it does not create any hostile discrimination against any party or group nor does it
confer undue favor or privilege on an individual as heretofore stated. The discrimination applies to all
organizations, whether political parties or social, civic, religious, or professional associations. The ban is
germane to the objectives of the law, which are to avert the debasement of the electoral process, and to
attain real equality of chances among individual candidates and thereby make real the guarantee of equal
protection of the laws.
The political parties and the other organized groups have built-in advantages because of their machinery and
other facilities, which, the individual candidate who is without any organization support, does not have. The
fact that the other civic of religious organizations cannot have a campaign machinery as efficient as that of a
political party, does not vary the situation; because it still has that much built-in advantage as against the
individual candidate without similar support. Moreover, these civic religious and professional organization
may band together to support common candidates, who advocates the reforms that these organizations
champion and believe are imperative. This is admitted by petitioner Gonzales thru the letter of Senator
Ganzon dated August 17, 1970 attached to his petition as Annex "D", wherein the Senator stated that his
own "Timawa" group had agreed with the Liberal Party in Iloilo to support petitioner Gonzales and two others
as their candidates for the convention, which organized support is nullified by the questioned ban, Senator
Ganzon stressed that "without the group moving and working in joint collective effort" they cannot "exercise
effective control and supervision over our leaders the Women's League, the area commanders, etc."; but
with their joining with the LP's they "could have presented a solid front with very bright chances of capturing
all seats."
The civic associations other than political parties cannot with reason insist that they should be exempted
from the ban; because then by such exemption they would be free to utilize the facilities of the campaign
machineries which they are denying to the political parties. Whenever all organization engages in a political
activity, as in this campaign for election of delegates to the Constitutional Convention, to that extent it
partakes of the nature of a political organization. This, despite the fact that the Constitution and bylaws of
such civic, religious, or professional associations usually prohibit the association from engaging in partisan
political activity or supporting any candidate for an elective office. Hence, they must likewise respect the
ban.
The freedom of association also implies the liberty not to associate or join with others or join any existing
organization. A person may run independently on his own merits without need of catering to a political party
or any other association for support. And he, as much as the candidate whose candidacy does not evoke
sympathy from any political party or organized group, must be afforded equal chances. As emphasized by
Senators Tolentino and Salonga, this ban is to assure equal chances to a candidate with talent and imbued
with patriotism as well as nobility of purpose, so that the country can utilize their services if elected.

Impressed as We are by the eloquent and masterly exposition of Senator Taada for the invalidation of par. 1
of Sec. 8(a) of R.A. No. 6132, demonstrating once again his deep concern for the preservation of our civil
liberties enshrined in the Bill of Rights, We are not persuaded to entertain the belief that the challenged ban
transcends the limits of constitutional invasion of such cherished immunities. WHEREFORE, the prayers in
both petitions are hereby denied and R.A. No. 6132 including Secs. 2, 4, 5, and 8(a), paragraph 1, thereof,
cannot be declared unconstitutional.
MABANAG VS LOPEZ (73 PHIL 1; TUASON, J)
This is a petition for prohibition to prevent the enforcement of a congressional resolution designated
"Resolution of both houses proposing an amendment to the Constitution of the Philippines to be appended as
an ordinance thereto." The members of the Commission on Elections, the Treasurer of the Philippines, the
Auditor General, and the Director of the Bureau of Printing are made defendants, and the petitioners are
eight senators, seventeen representatives, and the presidents of the Democratic Alliance, the Popular Front
and the Philippine Youth Party. The validity of the above-mentioned resolution is attacked as contrary to the
Constitution.
The case was heard on the pleadings and stipulation of facts. In our view of the case it is unnecessary to go
into the facts at length. We will mention only the facts essential for the proper understanding of the issues.
For this purpose it suffices to say that three of the plaintiff senators and eight of the plaintiff representatives
had been proclaimed by a majority vote of the Commission on Elections as having been elected senators and
representatives in the elections held on April 23, 1946. The three senators were suspended by the Senate
shortly after the opening of the first session of Congress following the elections, on account of alleged
irregularities in their election. The eight representatives since their election had not been allowed to sit in the
lower House, except to take part in the election of the Speaker, for the same reason, although they had not
been formally suspended. A resolution for their suspension had been introduced in the House of
Representatives, but that resolution had not been acted upon definitely by the House when the present
petition was filed.
As a consequence these three senators and eight representatives did not take part in the passage of the
questioned resolution, nor was their membership reckoned within the computation of the necessary threefourths vote which is required in proposing an amendment to the Constitution. If these members of Congress
had been counted, the affirmative votes in favor of the proposed amendment would have been short of the
necessary three-fourths vote in either branch of Congress.
At the threshold we are met with the question of the jurisdiction of this Court. The respondents deny that this
Court has jurisdiction, relying on the conclusiveness on the courts of an enrolled bill or resolution. There is
some merit in the petitioners' contention that this is confusing jurisdiction, which is a matter of substantive
law, with conclusiveness of an enactment or resolution, which is a matter of evidence and practice. This
objection, however, is purely academic. Whatever distinction there is in the juridical sense between the two
concepts, in practice and in their operation they boil down to the same thing. Basically the two notions are
synonymous in that both are founded on the regard which the judiciary accords a co-equal coordinate, and
independent departments of the Government. If a political question conclusively binds the judges out of
respect to the political departments, a duly certified law or resolution also binds the judges under the
"enrolled bill rule" born of that respect.
It is a doctrine too well established to need citation of authorities, that political questions are not within the
province of the judiciary, except to the extent that power to deal with such questions has been conferred
upon the courts by express constitutional or statutory provision. (16 C.J.S., 431.) This doctrine is predicated
on the principle of the separation of powers, a principle also too well known to require elucidation or citation
of authorities. The difficulty lies in determining what matters fall within the meaning of political question. The

term is not susceptible of exact definition, and precedents and authorities are not always in full harmony as
to the scope of the restrictions, on this ground, on the courts to meddle with the actions of the political
departments of the government.
But there is one case approaching this in its circumstances: Coleman vs. Miller, a relatively recent decision of
the United States Supreme Court reported and annotated in 122 A.L.R., 695. The case, by a majority decision
delivered by Mr. Chief Justice Hughes, is authority for the conclusion that the efficacy of ratification by state
legislature of a proposed amendment to the Federal Constitution is a political question and hence not
justiciable. The Court further held that the decision by Congress, in its control of the Secretary of State, of the
questions of whether an amendment has been adopted within a reasonable time from the date of submission
to the state legislature, is not subject to review by the court.
If ratification of an amendment is a political question, a proposal which leads to ratification has to be a
political question. The two steps complement each other in a scheme intended to achieve a single objective.
It is to be noted that the amendatory process as provided in section 1 of Article XV of the Philippine
Constitution "consists of (only) two distinct parts: proposal and ratification." There is no logic in attaching
political character to one and withholding that character from the other. Proposal to amend the Constitution
is a highly political function performed by the Congress in its sovereign legislative capacity and committed to
its charge by the Constitution itself. The exercise of this power is even independent of any intervention by the
Chief Executive. If on grounds of expediency scrupulous attention of the judiciary be needed to safeguard
public interest, there is less reason for judicial inquiry into the validity of a proposal than into that of a
ratification. As the Mississippi Supreme Court has once said:
There is nothing in the nature of the submission which should cause the free exercise of it to be
obstructed, or that could render it dangerous to the stability of the government; because the measure
derives all its vital force from the action of the people at the ballot box, and there can never be danger in
submitting in an established form, to a free people, the proposition whether they will change their
fundamental law. The means provided for the exercise of their sovereign right of changing their
constitution should receive such a construction as not to trammel the exercise of the right. Difficulties and
embarrassments in its exercise are in derogation of the right of free government, which is inherent in the
people; and the best security against tumult and revolution is the free and unobstructed privilege to the
people of the State to change their constitution in the mode prescribed by the instrument.
(Green vs. Weller, 32 Miss., 650; note, 10 L.R.A., N.S., 150.)
Mr. Justice Black, in a concurring opinion joined in by Justices Roberts, Frankfurter and Douglas, in
Miller vs.Coleman, supra, finds no basis for discriminating between proposal and ratification. From his forceful
opinion we quote the following paragraphs:
The Constitution grant Congress exclusive power to control submission of constitutional amendments. Final
determination by Congress that ratification by three-fourths of the States has taken place "is conclusive
upon the courts." In the exercise of that power, Congress, of course, is governed by the Constitution.
However, whether submission, intervening procedure or Congressional determination of ratification
conforms to the commands of the Constitution, call for decisions by a "political department" of questions of
a type which this Court has frequently designated "political." And decision of a "political question" by the
"political department" to which the Constitution has committed it "conclusively binds the judges, as well as
all other officers, citizens and subjects of . . . government." Proclamation under authority of Congress that
an amendment has been ratified will carry with it a solemn assurance by the Congress that ratification has
taken place as the Constitution commands. Upon this assurance a proclaimed amendment must be
accepted as a part of the Constitution, leaving to the judiciary its traditional authority of interpretation. To
the extent that the Court's opinion in the present case even impliedly assumes a power to make judicial

interpretation of the exclusive constitutional authority of Congress over submission and ratification of
amendments, we are unable to agree.
The State court below assumed jurisdiction to determine whether the proper procedure is being followed
between submission and final adoption. However, it is apparent that judicial review of or pronouncements
upon a supposed limitation of a "reasonable time" within which Congress may accept ratification; as to
whether duly authorized State officials have proceeded properly in ratifying or voting for ratification; or
whether a State may reverse its action once taken upon a proposed amendment; and kindred questions,
are all consistent only with an intimate control over the amending process in the courts. And this must
inevitably embarrass the course of amendment by subjecting to judicial interference matters that we
believe were intrusted by the Constitution solely to the political branch of government.
The Court here treats the amending process of the Constitution in some respects as subject to judicial
construction, in others as subject to the final authority of the Congress. There is no disapproval of the
conclusion arrived at in Dillon vs. Gloss, that the Constitution impliedly requires that a properly submitted
amendment must die unless ratified within a "reasonable time." Nor does the Court now disapprove its
prior assumption of power to make such a pronouncement. And it is not made clear that only Congress has
constitutional power to determine if there is any such implication in Article 5 of the Constitution. On the
other hand, the Court's opinion declares that Congress has the exclusive power to decide the "political
questions" of whether as State whose legislature has once acted upon a proposed amendment may
subsequently reverse its position, and whether, in the circumstances of such a case as this, an amendment
is dead because an "unreasonable" time has elapsed. No such division between the political and judicial
branches of the government is made by Article 5 which grants power over the amending of the
Constitution to Congress alone. Undivided control of that process has been given by the Article exclusively
and completely to Congress. The process itself is "political" in its entirely, from submission until an
amendment becomes part of the Constitution, and is not subject to judicial guidance, control or
interference at any point.
Mr. Justice Frankfurter, in another concurring opinion to which the other three justices subscribed, arrives at
the same conclusion. Though his thesis was the petitioner's lack of standing in court a point which not
having been raised by the parties herein we will not decide his reasoning inevitably extends to a
consideration of the nature of the legislative proceeding the legality of which the petitioners in that case
assailed. From a different angle he sees the matter as political, saying:

The right of the Kansas senators to be here is rested on recognition by Leser vs. Garnett, 258 U.S., 130; 66
Law. ed., 505; 42 S. Ct., 217, of a voter's right to protect his franchise. The historic source of this doctrine
and the reasons for it were explained in Nixon vs. Herndon, 273 U.S., 436, 540; 71 Law. ed., 759, 761; 47
S. Ct., 446. That was an action for $5,000 damages against the Judges of Elections for refusing to permit
the plaintiff to vote at a primary election in Texas. In disposing of the objection that the plaintiff had no
cause of action because the subject matter of the suit was political, Mr. Justice Homes thus spoke for the
Court: "Of course the petition concerns political action, but it alleges and seeks to recover for private
damage. That private damage may be caused by such political action and may be recovered for in a suit at
law hardly has been doubted for over two hundred years, since Ashby vs. White, 2 Ld. Raym., 938; 92 Eng.
Reprint, 126; 1 Eng. Rul. Cas., 521; 3 Ld. Raym., 320; 92 Eng. Reprint, 710, and has been recognized by
this Court." "Private damage" is the clue to the famous ruling in Ashby vs. White, supra, and determines its
scope as well as that of cases in this Court of which it is the justification. The judgment of Lord Holt is
permeated with the conception that a voter's franchise is a personal right, assessable in money damages,
of which the exact amount "is peculiarly appropriate for the determination of a jury," see Wiley vs. Sinkler,
179 U.S., 58, 65; 45 Law. ed., 84, 88; 21 S. Ct., 17, and for which there is no remedy outside the law
courts. "Although this matter relates to the parliament," said Lord Holt, "yet it is an injury precedaneous to
the parliament, as my Lord Hale said in the case of Bernardiston vs. Some, 2 Lev., 114, 116; 83 Eng.
Reprint, 175. The parliament cannot judge of this injury, nor give damage to the plaintiff for it: they cannot
make him a recompense." (2 Ld. Raym., 938, 958; 92 Eng. Reprint, 126; 1 Eng. Rul. Cas., 521.)
The reasoning of Ashby vs. White and the practice which has followed it leave intra-parliamentary
controversies to parliaments and outside the scrutiny of law courts. The procedures for voting in legislative
assemblies who are members, how and when they should vote, what is the requisite number of votes for
different phases of legislative activity, what votes were cast and how they were counted surely are
matters that not merely concern political action but are of the very essence of political action, if "political"
has any connotation at all. Marshall Field & Co. vs. Clark, 143 U.S., 649, 670, et seq.; 36 Law. ed., 294, 302;
12 S. Ct., 495; Leser vs. Garnett, 258 U.S., 130, 137; 66 Law. ed., 505, 511; 42 S. Ct., 217. In no sense are
they matters of "private damage." They pertain to legislators not as individuals but as political
representatives executing the legislative process. To open the law courts to such controversies is to have
courts sit in judgment on the manifold disputes engendered by procedures for voting in legislative
assemblies. If the doctrine of Ashby vs. White vindicating the private rights of a voting citizen has not been
doubted for over two hundred years, it is equally significant that for over two hundred years
Ashby vs. White has not been sought to be put to purposes like the present. In seeking redress here these
Kansas senators have wholly misconceived the functions of this Court. The writ of certiorari to the Kansas
Supreme Court should therefore be dismissed.
We share the foregoing views. In our judgment they accord with sound principles of political jurisprudence
and represent liberal and advanced thought on the working of constitutional and popular government as
conceived in the fundamental law. Taken as persuasive authorities, they offer enlightening understanding of
the spirit of the United States institutions after which ours are patterned. But these concurring opinions have
more than persuasive value. As will be presently shown, they are the opinions which should operate to
adjudicate the questions raised by the pleadings. To make the point clear, it is necessary, at the risk of
unduly lengthening this decision, to make a statement and an analysis of the Coleman vs. Miller case.
Fortunately, the annotation on that case in the American Law Reports, supra, comes to out aid and lightens
our labor in this phase of the controversy.
Coleman vs. Miller was an original proceeding in mandamus brought in the Supreme Court of Kansas by
twenty-one members of the Senate, including twenty senators who had voted against a resolution ratifying
the Child Labor Amendment, and by three members of the House of Representatives, to compel the
Secretary of the Senate to erase in indorsement on the resolution to the effect that it had been adopted by
the Senate and to indorse thereon the words "as not passed." They sought to restrain the offices of the
Senate and House of Representatives from signing the resolution, and the Secretary of State of Kansas from

authenticating it and delivering it to the Governor. The background of the petition appears to have been that
the Child Labor Amendment was proposed by Congress in June, 1924; that in January, 1925, the legislature of
Kansad adopted a resolution rejecting it and a copy of the resolution was sent to the Secretary of State of the
United States; that in January, 1927, a new resolution was introduced in the Senate of Kansas ratifying the
proposed amendment; that there were forty senators, twenty of whom voted for and twenty against the
resolution; and that as a result of the tie, the Lieutenant Governor cast his vote in favor of the resolution.
The power of the Lieutenant Governor to vote was challenged, and the petition set forth prior rejection of the
proposed amendment and alleged that in the period from June 1924 to March 1927, the proposed
amendment had been rejected by both houses of the legislatures of twenty-six states and had been ratified
only in five states, and that by reason of that rejection and the failure of ratification within a reasonable time,
the proposed amendment had lost its vitality. The Supreme Court of Kansas entertained jurisdiction of all the
issues but dismissed the petition on the merits. When the case reached the Supreme Court of the United
States the questions were framed substantially in the following manner:
First, whether the court had jurisdiction; that is, whether the petitioners had standing to seek to have the
judgment of the state court reversed; second, whether the Lieutenant Governor had the right to vote in case
of a tie, as he did, it being the contention of the petitioners that "in the light of the powers and duties of the
Lieutenant Governor and his relation to the Senate under the state Constitution, as construed by the
Supreme Court of the state, the Lieutenant Governor was not a part of the 'legislature' so that under Article 5
of the Federal Constitution, he could be permitted to have a deciding vote on the ratification of the proposed
amendment, when the Senate was equally divided"; and third, the effect of the previous rejection of the
amendment and of the lapse of time after its submission.
The first question was decided in the affirmative. The second question, regarding the authority of the
Lieutenant Governor to vote, the court avoided, stating: "Whether this contention presents a justiciable
controversy, or a question which is political in its nature and hence not justiciable, is a question upon which
the Court is equally divided and therefore the court expresses no opinion upon that point." On the third
question, the Court reached the conclusion before referred to, namely, (1) that the efficacy of ratification by
state legislature of a proposed amendment to the Federal Constitution is a political question, within the
ultimate power of Congress in the exercise of its control and of the promulgation of the adoption of
amendment, and (2) that the decision by Congress, in its control of the action of the Secretary of State, of
the questions whether an amendment to the Federal Constitution has been adopted within a reasonable
time, is not subject to review by the court.
The net result was that the judgment of the Supreme Court of Kansas was affirmed but in the grounds stated
in the United States Supreme Court's decision. The nine justices were aligned in three groups. Justices
Roberts, Black, Frankfurter and Douglas opined that the petitioners had no personality to bring the petition
and that all the questions raised are political and non-justiciable Justices Butler and McReynolds opined that
all the questions were justiciable; that the Court had jurisdiction of all such questions, and that the petition
should have been granted and the decision of the Supreme Court of Kansas reversed on the ground that the
proposal to amend had died of old age. The Chief Justice, Mr. Justice Stone and Mr. Justice Reed regarded
some of the issues as political and non-justiciable, passed by the question of the authority of the Lieutenant
Governor to case a deciding vote, on the ground that the Court was equally divided, and took jurisdiction of
the rest of the questions. The sole common ground between Mr. Justice Butler and Mr. Justice McReynolds, on
the one hand and the Chief Justice, Mr. Justice Stone and Mr. Justice Reed, on the other, was on the question
of jurisdiction; on the result to be reached, these two groups were divided. The agreement between Justices
Roberts, Black, Frankfurter and Douglas, on the one hand, and the Chief Justice and Justices Stone and Reed,
on the other, was on the result and on that part of the decision which declares certain questions political and
non-justiciable.

As the annotator in American Law Reports observes, therefore going four opinions "show interestingly
divergent but confusing positions of the Justices on the issues discussed. "It cites an article in 48 Yale Law
Journal, 1455, amusingly entitled "Sawing a Justice in Half," which, in the light of the divergencies in the
opinions rendered, aptly queries" whether the proper procedure for the Supreme Court would not have been
to reverse the judgment below and direct dismissal of the suit for want of jurisdiction." It says that these
divergencies and line-ups of the justices "leave power to dictate the result and the grounds upon which the
decision should be rested with the four justices who concurred in Mr. Justice Black's opinion." Referring to the
failure of the Court to decide the question of the right of the Lieutenant Governor to vote, the article points
out that from the opinions rendered the "equally divided" court would seem under any circumstances to bean
equal division of an odd number of justices, and asks "What really did happen? Did a justice refuse to vote on
this issue? And if he did, was it because he could not make up his mind, or is it possible to saw a justice
vertically in half during the conference and have him walk away whole?" But speaking in a more serious vein,
the commentator says that decision of the issue could not be avoided on grounds of irrelevance, since if the
court had jurisdiction of the case, decision of the issue in favor of the petitioners would have required
reversal of the judgment below regardless of the disposal of the other issues.
From this analysis the conclusion is that the concurring opinions should be considered as laying down the rule
of the case. The respondent's other chief reliance is on the contention that a duly authenticated bill or
resolution imports absolute verity and is binding on the courts. This is the rule prevailing in England. In the
United States, "In point of numbers, the jurisdictions are divided almost equally pro and con the general
principle (of these, two or three have changed from their original position), two or three adopted a special
variety of view (as in Illinois), three or four are not clear, and one or two have not yet made their decisions."
(IV Wigmore on Evidence, 3d Edition, 685, footnote.) It is important to bear in mind, in this connection, that
the United States Supreme Court is on the side of those which favor the rule. (Harwood vs. Wentworth, 40
Law. ed., 1069; Lyon vs. Wood, 38 Law. ed., 854; Field vs. Clark, 36 Law. ed., 294.)
If for no other reason than that it conforms to the expressed policy of our law making body, we choose to
follow the rule. Section 313 of the old Code of Civil Procedure, as amended by Act No. 2210, provides:
"Official documents may be proved as follows: . . . (2) the proceedings of the Philippine Commission, or of
any legislative body that may be provided for in the Philippine Islands, or of Congress, by the journals of
those bodies or of either house thereof, or by published statutes or resolutions, or by copies certified by the
clerk or secretary, or printed by their order; Provided, That in the case of Acts of the Philippine Commission or
the Philippine Legislature, when there is an existence of a copy signed by the presiding officers and
secretaries of said bodies, it shall be conclusive proof of the provisions of such Acts and of the due enactment
thereof."
But there is more than statutory sanction for conclusiveness. This topic has been the subject of a great
number of decisions and commentaries written with evident vehemence. Arguments for and against the rule
have been extensive and exhaustive. It would be presumptuous on our part to pretend to add more, even if
we could, to what has already been said. Which such vast mass of cases to guide our judgment and
discretion, our labor is reduced to an intelligent selection and borrowing of materials and arguments under
the criterion of adaptability to a sound public policy.
The reasons adduced in support of enrollment as contrasted with those which opposed it are, in our opinion,
almost decisive. Some of these reasons are summarized in 50 American Jurisprudence, section 150 as
follows:
SEC. 150. Reasons for Conclusiveness. It has been declared that the rule against going behind the
enrolled bill is required by the respect due to a coequal and independent department of the government,
and it would be an inquisition into the conduct of the members of the legislature, a very delicate power,
the frequent exercise of which must lead to endless confusion in the administration of the law. The rule is

also one of convenience, because courts could not rely on the published session laws, but would be
required to look beyond these to the journals of the legislature and often to any printed bills and
amendments which might be found after the adjournment of the legislature. Otherwise, after relying on the
prima facie evidence of the enrolled bills, authenticated as exacted by the Constitution, for years, it might
be ascertained from the journals that an act theretofore enforced had never become a law. In this respect,
it has been declared that these is quite enough uncertainty as to what the law is without saying that no
one may be certain that an act of the legislature has become such until the issue has been determined by
some court whose decision might not be regarded as conclusive in an action between the parties.
From other decisions, selected and quoted in IV Wigmore on Evidence, 696, 697, we extract these passages:
I think the rule thus adopted accords with public policy. Indeed, in my estimation, few things would be
more mischievous than the introduction of the opposite rule. . . . The rule contended for is that the Court
should look at the journals of the Legislature to ascertain whether the copy of the act attested and filed
with the Secretary of State conforms in its contents with the statements of such journals. This proposition
means, if it has any legal value whatever, that, in the event of a material discrepancy between the journal
and the enrolled copy, the former is to be taken as the standard of veracity and the act is to be rejected.
This is the test which is to be applied not only to the statutes now before the Court, but to all statutes; not
only to laws which have been recently passed, but to laws the most ancient. To my mind, nothing can be
more certain than that the acceptance of this doctrine by the Court would unsettle the entire statute law of
the State. We have before us some evidence of the little reliability of these legislative journals. . . . Can
anyone deny that if the laws of the State are to be tested by a comparison with these journals, so
imperfect, so unauthenticated, the stability of all written law will be shaken to its very foundations? . . . We
are to remember the danger, under the prevalence of such a doctrine, to be apprehended from the
intentional corruption of evidences of this character. It is scarcely too much to say that the legal existence
of almost every legislative act would be at the mercy of all persons having access to these journals. . . .
([1866], Beasley, C.J., in Pangborn vs. Young, 32 N.J.L., 29, 34.)
But it is argued that if the authenticated roll is conclusive upon the Courts, then less than a quorum of
each House may be the aid of corrupt presiding officers imposed laws upon the State in defiance of the
inhibition of the Constitution. It must be admitted that the consequence stated would be possible. Public
authority and political power must of necessity be confided to officers, who being human may violate the
trusts reposed in them. This perhaps cannot be avoided absolutely. But it applies also to all human
agencies. It is not fit that the Judiciary should claim for itself a purity beyond all others; nor has it been
able at all times with truth to say that its high places have not been disgraced. The framers of our
government have not constituted it with faculties to supervise coordinate departments and correct or
prevent abuses of their authority. It cannot authenticate a statute; that power does not belong to it; nor
can it keep a legislative journal. (1869, Frazer, J., in Evans vs. Brownem 30 Ind., 514, 524.)
Professor Wigmore in his work on Evidence considered a classic, and described by one who himself is a
noted jurist, author, and scholar, as "a permanent contribution to American law" and having "put the
matured nineteenth-century law in form to be used in a new era of growth" unequivocally identifies
himself with those who believe in the soundness of the rule. The distinguished professor, in answer to the
argument of Constitutional necessity, i.e., the impossibility of securing in any other way the enforcement of
constitutional restrictions on legislative action, says:
(1) In the first place, note that it is impossible of consistent application. If, as it is urged, the Judiciary are
bound to enforce the constitutional requirements of three readings, a two-thirds vote, and the like, and if
therefore an act must be declared no law which in fact was not read three times or voted upon by twothirds, this duty is a duty to determine according to the actual facts of the readings and the votes. Now the
journals may not represent the actual facts. That duty cannot allow us to stop with the journals, if it can be

shown beyond doubt that the facts were otherwise than therein represented. The duty to uphold a law
which in fact was constitutionally voted upon is quite as strong as the duty to repudiate an act
unconstitutionally voted upon. The Court will be going as far wrong in repudiating an act based on proper
votes falsified in the journal as it will be in upholding an act based on improper votes falsified in the
enrollment. This supposed duty, in short, is to see that the constitutional facts did exist; and it cannot stop
short with the journals. Yet, singularly enough, it is unanimously conceded that an examination into facts
as provable by the testimony of members present is not allowable. If to support that it be said that such an
inquiry would be too uncertain and impracticable, then it is answered that this concedes the supposed
constitutional duty not to be inexorable, after all; for if the duty to get at the facts is a real and inevitable
one, it must be a duty to get at them at any cost; and if it is merely a duty that is limited by policy and
practical convenience, then the argument changes into the second one above, namely, how far it is
feasible to push the inquiry with regard to policy and practical convenience; and from this point of view
there can be but one answer.
(2) In the second place, the fact that the scruple of constitutional duty is treated thus inconsistently and
pushed only up to a certain point suggests that it perhaps is based on some fallacious assumption whose
defect is exposed only by carrying it to its logical consequences. Such indeed seems to be the case. It rests
on the fallacious motion that every constitutional provision is "per se" capable of being enforced through
the Judiciary and must be safeguarded by the Judiciary because it can be in no other way. Yet there is
certainly a large field of constitutional provision which does not come before the Judiciary for enforcement,
and may remain unenforced without any possibility or judicial remedy. It is not necessary to invoke in
illustration such provisions as a clause requiring the Governor to appoint a certain officer, or the
Legislature to pass a law for a certain purpose; here the Constitution may remain unexecuted by the failure
of Governor or Legislature to act, and yet the Judiciary cannot safeguard and enforce the constitutional
duty. A clearer illustration may be had by imagining the Constitution to require the Executive to appoint an
officer or to call out the militia whenever to the best of his belief a certain state of facts exists; suppose he
appoints or calls out when in truth he has no such belief; can the Judiciary attempt to enforce the
Constitution by inquiring into his belief? Or suppose the Constitution to enjoin on the Legislators to pass a
law upon a certain subject whenever in their belief certain conditions exist; can the Judiciary declare the
law void by inquiring and ascertaining that the Legislature, or its majority, did not have such a belief? Or
suppose the Constitution commands the Judiciary to decide a case only after consulting a soothsayer, and
in a given case the Judiciary do not consult one; what is to be done?
These instances illustrate a general situation in which the judicial function of applying and enforcing the
Constitution ceases to operate. That situation exists where the Constitution enjoins duties which affect the
motives and judgment of a particular independent department of government, Legislature, Executive,
and Judiciary. Such duties are simply beyond enforcement by any other department if the one charged fails
to perform them. The Constitution may provide that no legislator shall take a bribe, but an act would not
be treated as void because the majority had been bribed. So far as the Constitution attempts to lay
injunctions in matters leading up to and motivating the action of a department, injunctions must be left to
the conscience of that department to obey or disobey. Now the act of the Legislature as a whole is for this
purpose of the same nature as the vote of a single legislator. The Constitution may expressly enjoin each
legislator not to vote until he has carefully thought over the matter of legislation; so, too, it may expressly
enjoin the whole Legislature not to act finally until it has three times heard the proposition read aloud. It is
for the Legislature alone, in the latter case as well as in the former, to take notice of this injunction; and it
is no more the function of the Judiciary in the one case than in the other to try to keep the Legislature to its
duty:
xxx
xxx
xxx
The truth is that many have been carried away with the righteous desire to check at any cost the
misdoings of Legislatures. They have set such store by the Judiciary for this purpose that they have almost
made them a second and higher Legislature. But they aim in the wrong direction. Instead of trusting a

faithful Judiciary to check an inefficient Legislature, they should turn to improve the legislature. The
sensible solution is not to patch and mend casual errors by asking the Judiciary to violate legal principle
and to do impossibilities with the Constitution; but to represent ourselves with competent, careful, and
honest legislators, the work of whose hands on the statute-roll may come to reflect credit upon the name
of popular government. (4 Wigmore on Evidence, 699-702.)
The petitioners contend that the enrolled bill rule has not found acceptance in this jurisdiction, citing the case
of United States vs. Pons (34 Phil., 729). It is argued that this Court examined the journal in that case to find
out whether or not the contention of the appellant was right. We think the petitioners are in error. It will be
seen upon examination of section 313 of the Code of Civil Procedure, as amended by Act No. 2210, that,
roughly, it provides two methods of proving legislative proceedings: (1) by the journals, or by published
statutes or resolutions, or by copies certified by the clerk or secretary or printed by their order; and (2) in
case of acts of the Legislature, by a copy signed by the presiding officers and secretaries thereof, which shall
be conclusive proof of the provisions of such Acts and of the due enactment thereof. The Court looked into
the journals in United States vs. Pons because, in all probability, those were the documents offered in
evidence. It does not appear that a duly authenticated copy of the Act was in existence or was placed before
the Court; and it has not been shown that if that had been done, this Court would not have held the copy
conclusive proof of the due enactment of the law. It is to be remembered that the Court expressly stated that
it "passed over the question" of whether the enrolled bill was conclusive as to its contents and the mode of
its passage.
Even if both the journals and an authenticated copy of the Act had been presented, the disposal of the issue
by the Court on the basis of the journals does not imply rejection of the enrollment theory, for, as already
stated, the due enactment of a law may be proved in either of the two ways specified in section 313 of Act
No. 190 as amended. This Court found in the journals no signs of irregularity in the passage of the law and
did not bother itself with considering the effects of an authenticated copy if one had been introduced. It did
not do what the opponents of the rule of conclusiveness advocate, namely, look into the journals behind the
enrolled copy in order to determine the correctness of the latter, and rule such copy out if the two, the
journals and the copy, be found in conflict with each other. No discrepancy appears to have been noted
between the two documents and the court did not say or so much as give to understand that if discrepancy
existed it would give greater weight to the journals, disregarding the explicit provision that duly certified
copies "shall be conclusive proof of the provisions of such Acts and of the due enactment thereof. In view of
the foregoing consideration, we deem it unnecessary to decide the question of whether the senators and
representatives who were ignored in the computation of the necessary three-fourths vote were members of
Congress within the meaning of section 1 of Article XV of the Philippine Constitution. The petition is dismissed
without costs.
GONZALES VS COMELEC (21 SCRA 774; CONCEPCION, CJ)
G. R. No. L-28196 is an original action for prohibition, with preliminary injunction. Petitioner therein prays for
judgment:
1) Restraining: (a) the Commission on Elections from enforcing Republic Act No. 4913, or from performing any
act that will result in the holding of the plebiscite for the ratification of the constitutional amendments
proposed in Joint Resolutions Nos. 1 and 3 of the two Houses of Congress of the Philippines, approved on
March 16, 1967; (b) the Director of Printing from printing ballots, pursuant to said Act and Resolutions; and
(c) the Auditor General from passing in audit any disbursement from the appropriation of funds made in said
Republic Act No. 4913; and
2) declaring said Act unconstitutional and void.
The main facts are not disputed. On March 16, 1967, the Senate and the House of Representatives passed
the following resolutions:
1. R. B. H. (Resolution of Both Houses) No. 1, proposing that Section 5, Article VI, of the Constitution of the
Philippines, be amended so as to increase the membership of the House of Representatives from a maximum

of 120, as provided in the present Constitution, to a maximum of 180, to be apportioned among the several
provinces as nearly as may be according to the number of their respective inhabitants, although each
province shall have, at least, one (1) member;
2. R. B. H. No. 2, calling a convention to propose amendments to said Constitution, the convention to be
composed of two (2) elective delegates from each representative district, to be "elected in the general
elections to be held on the second Tuesday of November, 1971;" and
3. R. B. H. No. 3, proposing that Section 16, Article VI, of the same Constitution, be amended so as to
authorize Senators and members of the House of Representatives to become delegates to the
aforementioned constitutional convention, without forfeiting their respective seats in Congress.
Subsequently, Congress passed a bill, which, upon approval by the President, on June 17, 1967, became
Republic Act No. 4913, providing that the amendments to the Constitution proposed in the aforementioned
Resolutions No. 1 and 3 be submitted, for approval by the people, at the general elections which shall be held
on November 14, 1967.
The petition in L-28196 was filed on October 21, 1967. At the hearing thereof, on October 28, 1967, the
Solicitor General appeared on behalf of respondents. Moreover, Atty. Juan T. David and counsel for the
Philippine Constitution Association hereinafter referred to as the PHILCONSA were allowed to argue
as amici curiae. Said counsel for the PHILCONSA, Dr. Salvador Araneta, likewise prayed that the decision in
this case be deferred until after a substantially identical case brought by said organization before the
Commission on Elections, which was expected to decide it any time, and whose decision would, in all
probability, be appealed to this Court had been submitted thereto for final determination, for a joint
decision on the identical issues raised in both cases. In fact, on October 31, 1967, the PHILCONSA filed with
this Court the petition in G. R. No. L-28224, for review by certiorari of the resolution of the Commission on
Elections dismissing the petition therein. The two (2) cases were deemed submitted for decision on
November 8, 1967, upon the filing of the answer of respondent, the memorandum of the petitioner and the
reply memorandum of respondent in L-28224.
Ramon A. Gonzales, the petitioner in L-28196, is admittedly a Filipino citizen, a taxpayer, and a voter. He
claims to have instituted case L-28196 as a class unit, for and in behalf of all citizens, taxpayers, and voters
similarly situated. Although respondents and the Solicitor General have filed an answer denying the truth of
this allegation, upon the ground that they have no knowledge or information to form a belief as to the truth
thereof, such denial would appear to be a perfunctory one. In fact, at the hearing of case L-28196, the
Solicitor General expressed himself in favor of a judicial determination of the merits of the issued raised in
said case.
The PHILCONSA, petitioner in L-28224, is admittedly a corporation duly organized and existing under the laws
of the Philippines, and a civic, non-profit and non-partisan organization the objective of which is to uphold the
rule of law in the Philippines and to defend its Constitution against erosions or onslaughts from whatever
source. Despite his aforementioned statement in L-28196, in his answer in L-28224 the Solicitor General
maintains that this Court has no jurisdiction over the subject-matter of L-28224, upon the ground that the
same is "merely political" as held in Mabanag vs. Lopez Vito. Senator Arturo M. Tolentino, who appeared
before the Commission on Elections and filed an opposition to the PHILCONSA petition therein, was allowed
to appear before this Court and objected to said petition upon the ground: a) that the Court has no
jurisdiction either to grant the relief sought in the petition, or to pass upon the legality of the composition of
the House of Representatives; b) that the petition, if granted, would, in effect, render in operational the
legislative department; and c) that "the failure of Congress to enact a valid reapportionment law . . . does not
have the legal effect of rendering illegal the House of Representatives elected thereafter, nor of rendering its
acts null and void."

Jurisdiction As early as Angara vs. Electoral Commission, this Court speaking through one of the leading
members of the Constitutional Convention and a respected professor of Constitutional Law, Dr. Jose P. Laurel
declared that "the judicial department is the only constitutional organ which can be called upon to
determine the proper allocation of powers between the several departments and among the integral or
constituent units thereof." It is true that in Mabanag vs. Lopez Vito, this Court characterizing the issue
submitted thereto as a political one, declined to pass upon the question whether or not a given number of
votes cast in Congress in favor of a proposed amendment to the Constitution which was being submitted
to the people for ratification satisfied the three-fourths vote requirement of the fundamental law. The force
of this precedent has been weakened, however, by Suanes vs. Chief Accountant of the Senate, Avelino vs.
Cuenco, Taada vs. Cuenco, and Macias vs. Commission on Elections. In the first, we held that the officers
and employees of the Senate Electoral Tribunal are under its supervision and control, not of that of the
Senate President, as claimed by the latter; in the second, this Court proceeded to determine the number of
Senators necessary for a quorum in the Senate; in the third, we nullified the election, by Senators belonging
to the party having the largest number of votes in said chamber, purporting to act on behalf of the party
having the second largest number of votes therein, of two (2) Senators belonging to the first party, as
members, for the second party, of the, Senate Electoral Tribunal; and in the fourth, we declared
unconstitutional an act of Congress purporting to apportion the representative districts for the House of
Representatives, upon the ground that the apportionment had not been made as may be possible according
to the number of inhabitants of each province. Thus we rejected the theory, advanced in these four (4) cases,
that the issues therein raised were political questions the determination of which is beyond judicial review.
Indeed, the power to amend the Constitution or to propose amendments thereto is not included in the
general grant of legislative powers to Congress. It is part of the inherent powers of the people as the
repository of sovereignty in a republican state, such as ours to make, and, hence, to amend their own
Fundamental Law. Congress may propose amendments to the Constitution merely because the same
explicitly grants such power. Hence, when exercising the same, it is said that Senators and Members of the
House of Representatives act, not as members of Congress, but as component elements of a constituent
assembly. When acting as such, the members of Congress derive their authority from the Constitution, unlike
the people, when performing the same function, for their authority does not emanate from the Constitution
they are the very source of all powers of government, including the Constitution itself .
Since, when proposing, as a constituent assembly, amendments to the Constitution, the members of
Congress derive their authority from the Fundamental Law, it follows, necessarily, that they do not have the
final say on whether or not their acts are within or beyond constitutional limits. Otherwise, they could brush
aside and set the same at naught, contrary to the basic tenet that ours is a government of laws, not of men,
and to the rigid nature of our Constitution. Such rigidity is stressed by the fact that, the Constitution
expressly confers upon the Supreme Court, the power to declare a treaty unconstitutional, despite the
eminently political character of treaty-making power. In short, the issue whether or not a Resolution of
Congress acting as a constituent assembly violates the Constitution essentially justiciable, not political,
and, hence, subject to judicial review, and, to the extent that this view may be inconsistent with the stand
taken in Mabanag vs. Lopez Vito, the latter should be deemed modified accordingly. The Members of the
Court are unanimous on this point.
The Merits Section 1 of Article XV of the Constitution, as amended, reads:
The Congress in joint session assembled by a vote of three-fourths of all the Members of the Senate and of
the House of Representatives voting separately, may propose amendments to this Constitution or call a
convention for that purpose. Such amendments shall be valid as part of this Constitution when approved
by a majority of the votes cast at an election at which the amendments are submitted to the people for
their ratification.

Pursuant to this provision, amendments to the Constitution may be proposed, either by Congress, or by a
convention called by Congress for that purpose. In either case, the vote of "three-fourths of all the members
of the Senate and of the House of Representatives voting separately" is necessary. And, "such amendments
shall be valid as part of" the "Constitution when approved by a majority of the votes cast at an election at
which the amendments are submitted to the people for their ratification." In the cases at bar, it is conceded
that the R. B. H. Nos. 1 and 3 have been approved by a vote of three-fourths of all the members of the
Senate and of the House of Representatives voting separately. This, notwithstanding, it is urged that said
resolutions are null and void because:
1. The Members of Congress, which approved the proposed amendments, as well as the resolution calling a
convention to propose amendments, are, at best, de facto Congressmen;
2. Congress may adopt either one of two alternatives propose amendments or call a convention therefore
but may not avail of both that is to say, propose amendment and call a convention at the same time;
3. The election, in which proposals for amendment to the Constitution shall be submitted for ratification,
must be a special election, not a general election, in which officers of the national and local governments
such as the elections scheduled to be held on November 14, 1967 will be chosen; and
4. The spirit of the Constitution demands that the election, in which proposals for amendment shall be
submitted to the people for ratification, must be held under such conditions which, allegedly, do not exist
as to give the people a reasonable opportunity to have a fair grasp of the nature and implications of said
amendments.
Legality of Congress and Legal Status of the Congressmen The first objection is based upon Section 5,
Article VI, of the Constitution, which provides:
The House of Representatives shall be composed of not more than one hundred and twenty Members who
shall be apportioned among the several provinces as nearly as may be according to the number of their
respective inhabitants, but each province shall have at least one Member. The Congress shall by law make
an apportionment within three years after the return of every enumeration, and not otherwise. Until such
apportionment shall have been made, the House of Representatives shall have the same number of
Members as that fixed by law for the National Assembly, who shall be elected by the qualified electors
from the present Assembly districts. Each representative district shall comprise, as far as practicable,
contiguous and compact territory.
It is urged that the last enumeration or census took place in 1960; that, no apportionment having been made
within three (3) years thereafter, the Congress of the Philippines and/or the election of its Members became
illegal; that Congress and its Members, likewise, became a de facto Congress and/or de facto congressmen,
respectively; and that, consequently, the disputed Resolutions, proposing amendments to the Constitution,
as well as Republic Act No. 4913, are null and void.
It is not true, however, that Congress has not made an apportionment within three years after the
enumeration or census made in 1960. It did actually pass a bill, which became Republic Act No.
3040, purporting to make said apportionment. This Act was, however, declared unconstitutional, upon the
ground that the apportionment therein undertaken had not been made according to the number of
inhabitants of the different provinces of the Philippines.
Moreover, we are unable to agree with the theory that, in view of the failure of Congress to make a valid
apportionment within the period stated in the Constitution, Congress became an "unconstitutional Congress"
and that, in consequence thereof, the Members of its House of Representatives are de facto officers. The
major premise of this process of reasoning is that the constitutional provision on "apportionment within three
years after the return of every enumeration, and not otherwise," is mandatory. The fact that Congress is

under legal obligation to make said apportionment does not justify, however, the conclusion that failure to
comply with such obligation rendered Congress illegal or unconstitutional, or that its Members have
become de facto officers. It is conceded that, since the adoption of the Constitution in 1935, Congress has
not made a valid apportionment as required in said fundamental law. The effect of this omission has been
envisioned in the Constitution, pursuant to which:

held in conformity with said Election Law, and the legal provisions creating Congress with a House of
Representatives composed of members elected by qualified voters of representative districts as they existed
at the time of said elections remained in force, we cannot see how said Members of the House of
Representatives can be regarded as de facto officers owing to the failure of their predecessors in office to
make a reapportionment within the period aforementioned.

. . . Until such apportionment shall have been made, the House of Representatives shall have the same
number of Members as that fixed by law for the National Assembly, who shall be elected by the qualified
electors from the present Assembly districts. . . . .

Upon the other hand, the Constitution authorizes the impeachment of the President, the Vice-President, the
Justices of the Supreme Court and the Auditor General for, inter alia, culpable violation of the
Constitution, the enforcement of which is, not only their mandatory duty, but also, their main function. This
provision indicates that, despite the violation of such mandatory duty, the title to their respective offices
remains unimpaired, until dismissal or ouster pursuant to a judgment of conviction rendered in accordance
with Article IX of the Constitution. In short, the loss of office or the extinction of title thereto is not automatic.

The provision does not support the view that, upon the expiration of the period to make the apportionment, a
Congress which fails to make it is dissolved or becomes illegal. On the contrary, it implies necessarily that
Congress shall continue to function with the representative districts existing at the time of the expiration of
said period. It is argued that the above-quoted provision refers only to the elections held in 1935. This theory
assumes that an apportionment had to be made necessarily before the first elections to be held after the
inauguration of the Commonwealth of the Philippines, or in 1938. The assumption, is, however, unwarranted,
for there had been no enumeration in 1935, and nobody could foretell when it would be made. Those who
drafted and adopted the Constitution in 1935 could be certain, therefore, that the three-year period, after the
earliest possible enumeration, would expire after the elections in 1938.
What is more, considering that several provisions of the Constitution, particularly those on the legislative
department, were amended in 1940, by establishing a bicameral Congress, those who drafted and adopted
said amendment, incorporating therein the provision of the original Constitution regarding the
apportionment of the districts for representatives, must have known that the three-year period therefor
would expire after the elections scheduled to be held and actually held in 1941. Thus, the events
contemporaneous with the framing and ratification of the original Constitution in 1935 and of the
amendment thereof in 1940 strongly indicate that the provision concerning said apportionment and the
effect of the failure to make it were expected to be applied to conditions obtaining after the elections in 1935
and 1938, and even after subsequent elections.
Then again, since the report of the Director of the Census on the last enumeration was submitted to the
President on November 30, 1960, it follows that the three-year period to make the apportionment did not
expire until 1963, or after the Presidential elections in 1961. There can be no question, therefore, that the
Senate and the House of Representatives organized or constituted on December 30, 1961, were de
jure bodies, and that the Members thereof were de jure officers. Pursuant to the theory of petitioners herein,
upon expiration of said period of three years, or late in 1963, Congress became illegal and its Members, or at
least, those of the House of Representatives, became illegal holder of their respective offices, and were de
facto officers.
Petitioners do not allege that the expiration of said three-year period without a reapportionment, had the
effect of abrogating or repealing the legal provision creating Congress, or, at least, the House of
Representatives, and are not aware of any rule or principle of law that would warrant such conclusion.
Neither do they allege that the term of office of the members of said House automatically expired or that
they ipso facto forfeited their seats in Congress, upon the lapse of said period for reapportionment. In fact,
neither our political law, nor our law on public officers, in particular, supports the view that failure to
discharge a mandatory duty, whatever it may be, would automatically result in the forfeiture of an office, in
the absence of a statute to this effect.
Similarly, it would seem obvious that the provision of our Election Law relative to the election of Members of
Congress in 1965 were not repealed in consequence of the failure of said body to make an apportionment
within three (3) years after the census of 1960. Inasmuch as the general elections in 1965 were presumably

Even if we assumed, however, that the present Members of Congress are merely de facto officers, it would
not follow that the contested resolutions and Republic Act No. 4913 are null and void. In fact, the main
reasons for the existence of the de facto doctrine is that public interest demands that acts of persons
holding, under color of title, an office created by a valid statute be, likewise, deemed valid insofar as the
public as distinguished from the officer in question is concerned. Indeed, otherwise, those dealing with
officers and employees of the Government would be entitled to demand from them satisfactory proof of their
title to the positions they hold, before dealing with them, or before recognizing their authority or obeying
their commands, even if they should act within the limits of the authority vested in their respective offices,
positions or employments. One can imagine this great inconvenience, hardships and evils that would result in
the absence of the de facto doctrine. As a consequence, the title of a de facto officer cannot be assailed
collaterally. It may not be contested except directly, by quo warranto proceedings. Neither may the validity of
his acts be questioned upon the ground that he is merely a de facto officer. And the reasons are obvious: (1)
it would be an indirect inquiry into the title to the office; and (2) the acts of a de facto officer, if within the
competence of his office, are valid, insofar as the public is concerned.
It is argued that the foregoing rules do not apply to the cases at bar because the acts therein involved have
not been completed and petitioners herein are not third parties. This pretense is untenable. It is inconsistent
with Tayko vs. Capistrano. In that case, one of the parties to a suit being heard before Judge Capistrano
objected to his continuing to hear the case, for the reason that, meanwhile, he had reached the age of
retirement. This Court held that the objection could not be entertained, because the Judge was at least, a de
facto Judge, whose title cannot be assailed collaterally. It should be noted that Tayko was not a third party
insofar as the Judge was concerned. Tayko was one of the parties in the aforementioned suit. Moreover, Judge
Capistrano had not, as yet, finished hearing the case, much less rendered decision therein. No rights had
vested in favor of the parties, in consequence of the acts of said Judge. Yet, Tayko's objection was overruled.
Needless to say, insofar as Congress is concerned, its acts, as regards the Resolutions herein contested and
Republic Act No. 4913, are complete. Congress has nothing else to do in connection therewith. The Court is,
also, unanimous in holding that the objection under consideration is untenable.
Available Alternatives to Congress Atty. Juan T. David, as amicus curiae, maintains that Congress may
either propose amendments to the Constitution or call a convention for that purpose, but it cannot do both,
at the same time. This theory is based upon the fact that the two (2) alternatives are connected in the
Constitution by the disjunctive "or." Such basis is, however, a weak one, in the absence of other
circumstances and none has brought to our attention supporting the conclusion drawn by the amicus
curiae. In fact, the term "or" has, oftentimes, been held to mean "and," or vice-versa, when the spirit or
context of the law warrants it.
It is, also, noteworthy that R. B. H. Nos. 1 and 3 propose amendments to the constitutional provision on
Congress, to be submitted to the people for ratification on November 14, 1967, whereas R. B. H. No. 2 calls

for a convention in 1971, to consider proposals for amendment to the Constitution, in general. In other
words, the subject-matter of R. B. H. No. 2 is different from that of R B. H. Nos. 1 and 3. Moreover, the
amendments proposed under R. B. H. Nos. 1 and 3, will be submitted for ratification several
years before those that may be proposed by the constitutional convention called in R. B. H. No. 2. Again,
although the three (3) resolutions were passed on the same date, they were taken up and put to a vote
separately, or one after the other. In other words, they were not passed at the same time.
In any event, we do not find, either in the Constitution, or in the history thereof anything that would negate
the authority of different Congresses to approve the contested Resolutions, or of the same Congress to pass
the same in, different sessions or different days of the same congressional session. And, neither has any
plausible reason been advanced to justify the denial of authority to adopt said resolutions on the same day.
Counsel ask: Since Congress has decided to call a constitutional convention to propose amendments, why
not let the whole thing be submitted to said convention, instead of, likewise, proposing some specific
amendments, to be submitted for ratification before said convention is held? The force of this argument must
be conceded. But the same impugns the wisdom of the action taken by Congress, not its authority to take it.
One seeming purpose thereof to permit Members of Congress to run for election as delegates to the
constitutional convention and participate in the proceedings therein, without forfeiting their seats in
Congress. Whether or not this should be done is a political question, not subject to review by the courts of
justice. On this question there is no disagreement among the members of the Court.
May Constitutional Amendments Be Submitted for Ratification in a General Election? Article XV of
the Constitution provides:
. . . The Congress in joint session assembled, by a vote of three-fourths of all the Members of the Senate
and of the House of Representatives voting separately, may propose amendments to this Constitution or
call a contention for that purpose. Such amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election at which the amendments are submitted to the
people for their ratification.
There is in this provision nothing to indicate that the "election" therein referred to is a "special," not a
general, election. The circumstance that three previous amendments to the Constitution had been submitted
to the people for ratification in special elections merely shows that Congress deemed it best to do so under
the circumstances then obtaining. It does not negate its authority to submit proposed amendments for
ratification in general elections. It would be better, from the viewpoint of a thorough discussion of the
proposed amendments, that the same be submitted to the people's approval independently of the election of
public officials. And there is no denying the fact that an adequate appraisal of the merits and demerits
proposed amendments is likely to be overshadowed by the great attention usually commanded by the choice
of personalities involved in general elections, particularly when provincial and municipal officials are to be
chosen. But, then, these considerations are addressed to the wisdom of holding a plebiscite simultaneously
with the election of public officer. They do not deny the authority of Congress to choose either alternative, as
implied in the term "election" used, without qualification, in the above-quoted provision of the Constitution.
Such authority becomes even more patent when we consider: (1) that the term "election," normally refers to
the choice or selection of candidates to public office by popular vote; and (2) that the word used in Article V
of the Constitution, concerning the grant of suffrage to women is, not "election," but "plebiscite."
Petitioners maintain that the term "election," as used in Section 1 of Art. XV of the Constitution, should be
construed as meaning a special election. Some members of the Court even feel that said term ("election")
refers to a "plebiscite," without any "election," general or special, of public officers. They opine that
constitutional amendments are, in general, if not always, of such important, if not transcendental and vital
nature as to demand that the attention of the people be focused exclusively on the subject-matter thereof, so

that their votes thereon may reflect no more than their intelligent, impartial and considered view on the
merits of the proposed amendments, unimpaired, or, at least, undiluted by extraneous, if not insidious
factors, let alone the partisan political considerations that are likely to affect the selection of elective officials.
This, certainly, is a situation to be hoped for. It is a goal the attainment of which should be promoted. The
ideal conditions are, however, one thing. The question whether the Constitution forbids the submission of
proposals for amendment to the people except under such conditions, is another thing. Much as the writer
and those who concur in this opinion admire the contrary view, they find themselves unable to subscribe
thereto without, in effect, reading into the Constitution what they believe is not written thereon and cannot
fairly be deduced from the letter thereof, since the spirit of the law should not be a matter of sheer
speculation. The majority view although the votes in favor thereof are insufficient to declare Republic Act
No. 4913 unconstitutional as ably set forth in the opinion penned by Mr. Justice Sanchez, is, however,
otherwise.
Would the Submission now of the Contested Amendments to the People Violate the Spirit of the
Constitution? It should be noted that the contested Resolutions were approved on March 16, 1967, so that,
by November 14, 1967, our citizenry shall have had practically eight (8) months to be informed on the
amendments in question. Then again, Section 2 of Republic Act No. 4913 provides:
(1) that "the amendments shall be published in three consecutive issues of the Official Gazette, at least
twenty days prior to the election;"
(2) that "a printed copy of the proposed amendments shall be posted in a conspicuous place in every
municipality, city and provincial office building and in every polling place not later than October 14, 1967,"
and that said copy "shall remain posted therein until after the election;"
(3) that "at least five copies of said amendment shall be kept in each polling place, to be made available for
examination by the qualified electors during election day;"
(4) that "when practicable, copies in the principal native languages, as may be determined by the
Commission on Elections, shall be kept in each polling place;"
(5) that "the Commission on Elections shall make available copies of said amendments in English, Spanish
and, whenever practicable, in the principal native languages, for free distributing:" and
(6) that the contested Resolutions "shall be printed in full" on the back of the ballots which shall be used on
November 14, 1967.
We are not prepared to say that the foregoing measures are palpably inadequate to comply with the
constitutional requirement that proposals for amendment be "submitted to the people for their ratification,"
and that said measures are manifestly insufficient, from a constitutional viewpoint, to inform the people of
the amendment sought to be made.
These were substantially the same means availed of to inform the people of the subject submitted to them
for ratification, from the original Constitution down to the Parity Amendment. Thus, referring to the original
Constitution, Section 1 of Act No. 4200, provides:
Said Constitution, with the Ordinance appended thereto, shall be published in the Official Gazette, in
English and in Spanish, for three consecutive issues at least fifteen days prior to said election, and a
printed copy of said Constitution, with the Ordinance appended thereto, shall be posted in a conspicuous
place in each municipal and provincial government office building and in each polling place not later than
the twenty-second day of April, nineteen hundred and thirty-five, and shall remain posted therein
continually until after the termination of the election. At least ten copies of the Constitution with the
Ordinance appended thereto, in English and in Spanish, shall be kept at each polling place available for

examination by the qualified electors during election day. Whenever practicable, copies in the principal
local dialects as may be determined by the Secretary of the Interior shall also be kept in each polling place.
The provision concerning woman's suffrage is Section 1 of Commonwealth Act No. 34, reading:
Said Article V of the Constitution shall be published in the Official Gazette, in English and in Spanish, for
three consecutive issues at least fifteen days prior to said election, and the said Article V shall be posted in
a conspicuous place in each municipal and provincial office building and in each polling place not later
than the twenty-second day of April, nineteen and thirty-seven, and shall remain posted therein continually
until after the termination of the plebiscite. At least ten copies of said Article V of the Constitution, in
English and in Spanish, shall be kept at each polling place available for examination by the qualified
electors during the plebiscite. Whenever practicable, copies in the principal native languages, as may be
determined by the Secretary of the Interior, shall also be kept in each polling place.
Similarly, Section 2, Commonwealth Act No. 517, referring to the 1940 amendments, is of the following tenor:
The said amendments shall be published in English and Spanish in three consecutive issues of the Official
Gazette at least twenty days prior to the election. A printed copy thereof shall be posted in a conspicuous
place in every municipal, city, and provincial government office building and in every polling place not
later than May eighteen, nineteen hundred and forty, and shall remain posted therein until after the
election. At least ten copies of said amendments shall be kept in each polling place to be made available
for examination by the qualified electors during election day. When practicable, copies in the principal
native languages, as may be determined by the Secretary of the Interior, shall also be kept therein.
As regards the Parity Amendment, Section 2 of Republic Act No. 73 is to the effect that:
The said amendment shall be published in English and Spanish in three consecutive issues of the Official
Gazette at least twenty days prior to the election. A printed copy thereof shall be posted in a conspicuous
place in every municipal, city, and provincial government office building and in every polling place not
later than February eleven, nineteen hundred and forty-seven, and shall remain posted therein until after
the election. At least, ten copies of the said amendment shall be kept in each polling place to be made
available for examination by the qualified electors during election day. When practicable, copies in the
principal native languages, as may be determined by the Commission on Elections, shall also be kept in
each polling place.
The main difference between the present situation and that obtaining in connection with the former
proposals does not arise from the law enacted therefor. The difference springs from the circumstance that the
major political parties had taken sides on previous amendments to the Constitution except, perhaps, the
woman's suffrage and, consequently, debated thereon at some length before the plebiscite took place.
Upon the other hand, said political parties have not seemingly made an issue on the amendments now being
contested and have, accordingly, refrained from discussing the same in the current political campaign. Such
debates or polemics as may have taken place on a rather limited scale on the latest proposals for
amendment, have been due principally to the initiative of a few civic organizations and some militant
members of our citizenry who have voiced their opinion thereon. A legislation cannot, however, be nullified

by reason of the failure of certain sectors of the community to discuss it sufficiently. Its constitutionality or
unconstitutionality depends upon no other factors than those existing at the time of the enactment thereof,
unaffected by the acts or omissions of law enforcing agencies, particularly those that take place
subsequently to the passage or approval of the law.
Referring particularly to the contested proposals for amendment, the sufficiency or insufficiency, from a
constitutional angle, of the submission thereof for ratification to the people on November 14, 1967, depends
in the view of those who concur in this opinion, and who, insofar as this phase of the case, constitute the
minority upon whether the provisions of Republic Act No. 4913 are such as to fairly apprise the people of
the gist, the main idea or the substance of said proposals, which is under R. B. H. No. 1 the increase of
the maximum number of seats in the House of Representatives, from 120 to 180, and under R. B. H. No. 3
the authority given to the members of Congress to run for delegates to the Constitutional Convention and,
if elected thereto, to discharge the duties of such delegates, without forfeiting their seats in Congress. We
who constitute the minority believe that Republic Act No. 4913 satisfies such requirement and that said
Act is, accordingly, constitutional.
A considerable portion of the people may not know how over 160 of the proposed maximum of
representative districts are actually apportioned by R. B. H. No. 1 among the provinces in the Philippines. It is
not improbable, however, that they are not interested in the details of the apportionment, or that a careful
reading thereof may tend in their simple minds, to impair a clear vision thereof. Upon the other hand, those
who are more sophisticated, may enlighten themselves sufficiently by reading the copies of the proposed
amendments posted in public places, the copies kept in the polling places and the text of contested
resolutions, as printed in full on the back of the ballots they will use.
It is, likewise, conceivable that as many people, if not more, may fail to realize or envisage the effect of R. B.
H. No. 3 upon the work of the Constitutional Convention or upon the future of our Republic. But, then, nobody
can foretell such effect with certainty. From our viewpoint, the provisions of Article XV of the Constitution are
satisfied so long as the electorate knows that R. B. H. No. 3 permits Congressmen to retain their seats as
legislators, even if they should run for and assume the functions of delegates to the Convention. We are
impressed by the factors considered by our distinguished and esteemed brethren, who opine otherwise, but,
we feel that such factors affect the wisdom of Republic Act No. 4913 and that of R. B. H. Nos. 1 and
3, not the authority of Congress to approve the same.
The system of checks and balances underlying the judicial power to strike down acts of the Executive or of
Congress transcending the confines set forth in the fundamental laws is not in derogation of the principle of
separation of powers, pursuant to which each department is supreme within its own sphere. The
determination of the conditions under which the proposed amendments shall be submitted to the people is
concededly a matter which falls within the legislative sphere. We do not believe it has been satisfactorily
shown that Congress has exceeded the limits thereof in enacting Republic Act No. 4913. Presumably, it could
have done something better to enlighten the people on the subject-matter thereof. But, then, no law is
perfect. No product of human endeavor is beyond improvement. Otherwise, no legislation would be
constitutional and valid. Six (6) Members of this Court believe, however, said Act and R. B. H. Nos. 1 and 3
violate the spirit of the Constitution. Inasmuch as there are less than eight (8) votes in favor of declaring
Republic Act 4913 and R. B. H. Nos. 1 and 3 unconstitutional and invalid, the petitions in these two (2) cases
must be, as they are hereby, dismiss and the writs therein prayed for denied, without special pronouncement
as to costs. It is so ordered.